Toward a New Land Claims Policy

At heart, the land claims issue is a dispute between aboriginal peoples and the federal government about ownership of land.

Aboriginal peoples in northern British Columbia, Yukon, the Northwest Territories, Labrador, and portions of Quebec assert aboriginal title over land they have traditionally used and occupied for many hundreds and, in some cases, thousands of years. These peoples have never surrendered title to their land nor ceded it through treaties to the Canadian government or its predecessor, the colonial government of Great Britain. Neither are they conquered peoples subject to the authority of an alien power. However, the federal government does not acknowledge or recognize aboriginal title to land and issues rights to use and develop land notwithstanding aboriginal title.

 The assertion of aboriginal title has created uncertainty about the federal government's legal ability to dispose of land. Aboriginal peoples have frequently threatened court action to remove unwanted developers from "their land" and to prevent government from awarding rights. On occasion, these threats have been carried out. Generally, the courts have been of marginal use in resolving land ownership disputes arising from the assertion of aboriginal title.^l Consequently, most aboriginal peoples and the federal government have agreed to resolve these disputes through negotiation. Because of this, a federal policy is needed to set the ground rules for negotiations, to outline clearly the government's objectives in entering into negotiations, to establish the purpose and nature of land claims settlements, and to suggest the type of compromise that government and aboriginal peoples should seek in settling claims.

Aboriginal peoples want a definitive and detailed land claims policy. The policy in existence from 1973 to 1986, perhaps euphemistically entitled In A11 Fairness,² has been criticized as vague, ambiguous, and so narrowly conceived that it prevented land claims negotiations from reaching the compromises upon which firm and enduring relationships might be established between the Canadian government and aboriginal peoples.³ It required aboriginal peoples to extinguish their rights and title to land in exchange for ownership of limited "selected" lands, consultation in the management of residual Crown lands, limited subsurface rights, preferential wildlife harvesting rights, and cash compensation.⁴ Such was the outcome of settlements in the James Bay and Northern Quebec Agreement of 1975 and the Inuvialuit Final Agreement of 1984-simple deals involving cash and land in exchange for extinguishment of aboriginal rights and title.

 The policy, regarded by many as an inflexible straitjacket, was in sharp contrast to aboriginal peoples' desire to use the claims forum for the negotiation of broad contracts dealing with economic, social, political, and cultural issues. Aboriginal peoples favoured a flexible, imaginative land claims policy.

The Constitution Act of 1982 included a clause affirming "existing" aboriginal rights. Overnight, the land claims policy was made obsolete. Why, it was now argued, should aboriginal peoples extinguish their rights through settlement of land claims when these selfsame rights were entrenched in the country's constitution? One year later the Report of the Special Committee of the House of Commons on Indian Self-Government recommended transfer of authority from the federal government to aboriginal peoples so that they might govern themselves.⁵ This report was warmly received by aboriginal peoples across the country, and, although not dealing explicitly with land claims, it offered much comfort to those aboriginal groups trying to broaden the scope of land claims negotiations. It was now clear to all but the most bureaucratically befuddled that a new land claims policy was needed to match the constitutional reality of the mid-1980s.

 The Task Force

 Early in 1985, David Crombie, then Minister of Indian Affairs and Northern Development, put reform of the land claims policy on his political agenda. After consulting aboriginal peoples about the need to reform the policy, he announced the appointment of a five-person task force to: "review all aspects of the current comprehensive claims policy and make recommendations as to future policy".⁶ Not only was Mr Crombie seeking advice on the goals and objectives for a new policy, but, also, on the potential inclusion in negotiations of issues aboriginal groups wished to address, the role of provincial and territorial governments in negotiations, and the negotiating process itself. Under the chairmanship of Murray Coolican, a Halifax-based consultant, the Task Force to Review Comprehensive Claims Policy received more than 75 briefs in its travels across Canada and met with representatives of many aboriginal peoples.

In December 1985, the task force issued its final report, entitled Living Treaties: Lasting Agreements. The Coolican Report, as it soon became known, recommended abandonment of cash and land deals, and a wholesale broadening of the land claims policy to allow for the negotiation of economic, social, political, and cultural issues. It recommended also that land claims settlements affirm, rather than extinguish, aboriginal rights, and that government share its authority with aboriginal peoples to manage natural resources.

 The Claims Coalition

In April 1986, all aboriginal peoples negotiating comprehensive land claims formed a coalition to press the federal government for a new policy based on the recommendations of the Coolican Report. The Comprehensive Claims Coalition drew together aboriginal peoples from diverse cultures and perspectives. For example, the Nishga of British Columbia differ greatly from the Inuit of the Northwest Territories, yet the impetus provided by the Coolican Report brought these and seven other aboriginal peoples together to press jointly for a new policy. After much debate, the coalition developed a short statement outlining the key elements of a new land claims policy This statement provided the conceptual basis for the coalition's activities and helped glue the loose and highly unusual organization together.

In April, Mr Crombie told the coalition that he intended to recommend a new land claims policy ta Cabinet in mid-June. Mr Crombie neither endorsed nor rejected the Coolican Report; however, he urged the coalition to make its views widely known so as to generate a political climate in which Cabinet would see the wisdom of reform and allot time for this issue on its crowded agenda. For the next six weeks, the coalition engaged in a whirlwind of meetings and briefings with senior civil servants, politicians, and Cabinet ministers and their political advisers. Aided by Project North, an inter-faith church group, the coalition held press conferences and meetings with provincial politicians, and met representatives of resource industries, and labour, church, and environmental groups. The message was simple and clear: The land claims policy must be reformed according to the advocacy of the aboriginal peoples and the recommendations of the Coolican Report.

Ottawa's Response

Generally, public response to the efforts of the coalition was favourable. In Ottawa, however, the policy reform initiative soon ran into trouble. The Coolican Report had not offered neat and easy solutions to land claims. Instead, it had urged government to alter its attitude toward aboriginal peoples and to seek long-term solutions to long-term problems. It urged government to share its authority and resources with aboriginal peoples. From the government's perspective, the task force endorsed radical, fundamental change.

Senior civil servants in the Department of Indian Affairs and Northern Development were charged by Mr Crombie to translate the recommendations of the Coolican Report into a policy proposal for consideration by Cabinet. This proved to be a difficult task. Civil servants who had counted on the Coolican Report to provide them with specific recommendations amounting to a draft policy complained that the report was too open-ended and philosophical. The task force had produced a report of unusual breadth and conceptual originality which did not sit well in the workaday world of Ottawa.

In mid-May, the first draft of DIAND's policy proposal was circulated to federal agencies for review and comment. In largely mirroring the Coolican Report's recommendations, the policy proposal required many federal departments-particularly Energy, Mines and Resources, Environment, Fisheries and Oceans, and Transport-to share managerial authority with aboriginal peoples. The response of these and other federal agencies was chilly. Much of this reaction seems to have been the result of ignorance about the legal and moral bases of land claims. To aboriginal peoples the question of land claims is compelling and consuming, but to senior civil servants in Ottawa it is a peripheral issue of no great importance or urgency. Most decision makers listened politely to the representations of the coalition but carried on as before, unperturbed.

 In late May, deputy ministers of those federal departments most directly affected by land claims met under the chairmanship of the deputy minister of DIAND to discuss the policy proposal. By all accounts, DIAND was surprised at the rocky reception its proposal received, for the assembled deputy ministers could not agree even on the Coolican Report's most fundamental recommendation: that land claims settlements affirm, rather than extinguish, aboriginal rights. The Coolican Report had suggested that the federal government could attain the certainty it needs to dispose of and to develop land without blanket extinguishment of aboriginal rights, and it offered three alternatives to extinguishment for inclusion in the policy. However, federal agencies remained unconvinced and argued that a policy enshrining any of these alternatives would be a bad deal for Canada. There was concern that the cost of implementing a new land claims policy might be as high as $12 billion; yet, little rigorous analysis of the proposed policy's financial implications had been undertaken. Federal agencies demanded to know the full financial picture before backing the proposal.

 Lacking the support of other departments, Mr Crombie was unable to present a formal proposal to Cabinet. Nevertheless, he promised to approach Cabinet again in the autumn with a detailed policy proposal. In the meantime, civil servants were instructed to undertake a new round of consultation with federal departments. The policy initiative was not dead, but it had been badly wounded.

 Unfinished Business

 This first attempt to reform the land claims policy failed for several reasons: it was an issue of low priority in Ottawa; civil servants within DIAND found it difficult to deal with the fresh ideas of the task force; and the parochialism of federal agencies tended to favour existing authority and mandates.

To the coalition, this turn of events was evidence of DIAND's lack of strategic planning and an overly ambitious timetable on the part of the minister. As well, it seemed that the minister and his key advisers were in a quandary: would it be best to proceed as quietly as possible to obtain Cabinet approval of a new land claims policy following limited consultation with other federal agencies, or to treat the issue as a major policy question and promote extensive public debate? DIAND seems to have chosen the former route, its aim being to leave undisturbed potential opponents of a radically new land claims policy. But this "let-sleeping-dogs-lie" philosophy did not work. Quite probably it could not work.

 The Push for Reform

 Prime Minister Mulroney shuffled his Cabinet in early summer, before the coalition, Mr Crombie, and senior civil servants could engage in the inevitable post-mortem. Saskatchewan MP Bill McKnight took over the Indian Affairs and Northern Development portfolio, and with him came a new team to deal with land claims policy.

 In early September, Mr McKnight met with the Comprehensive Claims Coalition. The minister stressed his willingness to carry on where Mr Crombie had left off, and opined that the new land claims policy should be "practical" and provide "finality" to land claims. He warned that the government was increasingly nervous about the likely cost of settling land claims.

 In bringing a pragmatic approach to the issue, Mr McKnight hoped to focus land claims negotiations on land ownership and natural resource use and development, and to leave the negotiation of cultural, social, and political issues to other forums. Although the coalition was impressed with this straightforward, business-like attitude, the desire to focus negotiations solely on land-related questions raised the ire of many coalition members. This, it was felt, was a rejection of the Coolican Report's breadth of vision, philosophy, and many of its recommendations.

A New Offensive

Fortunately, Mr McKnight, his political staff, and the Assistant Deputy Minister, Self Government (the senior civil servant now charged with handling the land claims issue) made themselves freely available to the coalition to discuss the submission to Cabinet and the various concerns of public- and private-sector interests. In early October, Mr McKnight said that he would recommend to Cabinet a national land claims policy composed of "general principles" and would approach Cabinet for detailed mandates to negotiate individual claims.

From mid-September to mid -December, the coalition made the rounds of civil servants, politicians, and political advisers in Ottawa to ensure that dust was not settling on the Coolican Report, and to reaffirm its key components as the basis for a new land claims policy. Drawing upon its growing list of sympathizers in many government departments, the coalition was able to piece together fairly accurate pictures of the drafts of the proposed policy as they were circulated within government for comment.

 With this intelligence, the coalition tried to counter attempts by some government departments to narrow the proposed policy, and to reinforce efforts by others to broaden it. For example, in early October it seemed that the land claims policy might exclude negotiation of aboriginal self-government at the various land claims tables. In response, the coalition quickly developed a detailed statement on this issue, appended it to its key components, and insisted that the policy allow for negotiation of self-government as part of land claims. In the autumn campaign, the coalition was assisted once again by Project North and labour groups, and once more sought to explain its advocacy to industry, business, and commerce. Letters favouring the Coolican Report were subsequently sent to the Minister of Indian Affairs and Northern Development by a number of prominent business groups.

Even as the Coolican Report receded into history, the land claims issue was alive in Ottawa. In late October, Georges Erasmus, National Chief of the Assembly of First Nations, met with Mr Mulroney and impressed upon him the need to devise a new policy, based on the recommendations of the task force, before the 1987 constitutional conference on aboriginal rights. By all accounts, the Prime Minister quickly appreciated the political connection between the land claims policy and constitutional development. Later the same day, at a meeting of the Cabinet Committee on Social Development, Mr McKnight was able to note that the Prime Minister had been fully informed on the issue and that he was in broad agreement with the proposal. At a subsequent meeting of the Cabinet Committee on Priorities and Planning -the so-called "inner Cabinet"-on 16 December, Mr McKnight's land claims policy proposal received formal approval. Two days later, the new policy was unveiled in the House of Commons.

 Reactions

 Aboriginal peoples north of 60° have probably gained most through this policy, although all now wait anxiously for Cabinet to approve negotiating mandates to find out how the policy's general principles are to be interpreted. To groups south of 60°, relatively little has changed. There, some provincial governments have refused even to participate in land claims negotiations, and the new policy gives no indication that the federal government will use its political, moral, and financial muscle to persuade provinces to abandon their intransigence.

 Perhaps the most scathing reaction to the new policy was that provided by Keith Penner, the Opposition critic on aboriginal and northern affairs. His speech in the House of Commons in reply to Mr McKnight's announcement went immediately to the heart of the matter:

 The difficulty with the new claims policy, as with the old, is that it stems from a premise narrow in scope and fragile in structure, that is, that aboriginal title involves traditional use and occupancy which continues in certain respects up to the present. This so-called title as the Government sees it is an annoyance.⁷

 Terry Fenge is Director of Research, Tungavik Federation of Nunavat.

 Joanne Barnaby is a consultant in Yellowknife, N.W.T., and former National Co-ordinator, Comprehensive Claims Coalition.

 Endnotes

1. See B.W., Morse, "The Resolution of Land Claims", in B.W. Morse ed., Aboriginal Peoples and the Law (Ottawa: Carleton University Press, 19X5), pp. 617-83.

2. Department of Indian Affairs and Northern Development. In A11 Fairness. A Native Claims Policy (Ottawa: Department of Indian Affairs and Northern Development, 1981).

3. John Merritt, "A Review of Federal Land Claims Policy", in National and Regional Interests in the North (Ottawa: Canadian .Arctic Resources Committee, 1984), pp. 71 - 86.

 4. C. Demers, "Perspectives on Native Land Claims Policy", in National and Regional Interests in the North (Ottawa: Canadian Arctic Resources Committee, 1984), pp. 87-106.

 5. Special Committee on Indian Self-Government, Indian Self-Government in Canada (Ottawa: Queens Printer, 1983).

 6. Task Force to Review Comprehensive Claims Policy, Living Treaties: Lasting Agreements (Ottawa: Department of` Indian .Affairs and Northern Development, 1985).

 7. Hansard, House of Commons Debates 18 December 1986. p. 2232.