Labrador Inuit Land Claims: Aboriginal Rights and Interests v. Federal and Provincial Responsibilities and Authorities

 Veryan Haysom

 THE FORMAL OPENING OF LAND claim negotiations between the Labrador Inuit Association (LIA), the Government of Canada, and the Government of Newfoundland and Labrador in January 1989 marks the beginning of a subtle, but immensely important, shift in the problem of settling comprehensive aboriginal land claims in Canada. For the first time since the August 1973 announcement that Canada would negotiate the claims of aboriginal peoples whose title to land has never been formally dealt with

 Through treaty1, there are as many claims being negotiated with those aboriginal peoples resident in provinces as there are with those in the territories. The acid test of the current federal comprehensive land claims policy2 is going to come when all claims under negotiation are being conducted with aboriginal peoples resident in the provinces. If the abiding optimism about the settlement of claims proves well founded, that test may have to be passed during the term of the current federal government.

 From the peculiar perspective of Ottawa, Labrador Inuit land claims were under active negotiation for four years before the first formal negotiation session took place. The process of arriving at formal tripartite negotiations was slow and debilitating.

 This article attempts to give an overview of the Labrador Inuit claim and its progress to date by presenting a short account of the formation of the LIA and the claim it has submitted on behalf of the Inuit of Labrador. Greater emphasis is given recent events surrounding the start-up of negotiations; the concluding section offers comments that may be of interest to those concerned about the settlement of comprehensive land claims, particularly claims "south of 60░",

Establishment of the Labrador Inuit Association

The Labrador Inuit Association was officially established in the fall of 1973, following 18 months of close political contacts between the Inuit of Labrador, leaders of the northern Quebec Inuit Association, and the Inuit Tapirisat of Canada (ITC). Both the LIA's co-operative foundation, and the fact that, immediately upon its establishment, the association became an affiliate of the ITC, were reflections of the Canadian pan-Inuit movement of the early 1970s.

One of the first tasks faced by the LIA was to establish itself as the recognized organization representing Labrador Inuit. This was complicated by the existence of the Native Association of Newfoundland and Labrador (NANL) which had been created in early 1973. The prime movers behind NANL were the Micmac Indians of Newfoundland. NANL was open to, and secured representation of, Micmac, Montagnais, and Naskapi Indians, as well as Inuit. Representatives on its board of directors were drawn from the Inuit communities of northern Labrador- the same communities from which LIA drew its members.

In 1974 NANL received a grant to work on a land claims study project. When LIA later applied to the Department of Indian Affairs and Northern Development (DIAND) for funds to finance its own land claims project, the application was refused on the grounds that the NANL was already receiving funds for that purpose. The response of the LIA was to develop a strong and coherent membership base and to negotiate with NANL to gain official recognition for LIA as sole representative of the Inuit of the north Labrador coast. LIA was incorporated in March 1975, by the time of its annual general meeting in the fall of that year, it was generally recognized and accepted as the sole representative of Labrador Inuit.3

The Labrador Inuit Association currently represents approximately 4000 members resident in the northern Labrador communities of Nain, Hopedale, Makkovik, Rigolet, and Postville, and the Upper Lake Melville communities of Happy Valley-Goose Bay and North West River.

 The primary industry on the northern Labrador coast in the brief summer is the commercial char and salmon fishery. It provides the three principal sources of cash income on which most households rely: sales of fish and fish products, employment in fish plants, and unemployment insurance benefits which derive from the first two. Cash income from the commercial fishery finances the hunting, trapping, fishing, and gathering activities of many Labrador Inuit throughout the remainder of the year.

The decline of the commercial fishery on the northern Labrador coast has had a severe impact on the Inuit. A recent study summarizes general conditions:

Once to be Inuit or Innu meant a proud birthright and implied a lifestyle that involved activity on the land as hunters, fishers and trappers. Now to be Inuit or Innu generally means to be poor and dependent on Social Assistance; to live from day to day locked in a community because with little cash income it is virtually impossible to hunt or fish; to have a low level education and very limited prospects for finding wage-paying work; to suffer from alcohol abuse, poor health, strained family relations and low self-esteem. People once accustomed to being self-employed as harvesters, reliant on their environmental skills and ability to produce resources valuable to the upkeep of their families, now find themselves inactive and "unemployed", demoralized and impoverished in a way they never before experienced.4

 The Labrador Inuit way of life is also threatened by gradual and insidious assimilation into the culturally assertive, but economically impoverished, Newfoundland mainstream, a situation with which the land claims process appears unable to deal. Clearly, federal land claims policy and claims negotiations elsewhere in Canada have been driven largely by the demand for resources and industrial development. In the absence of such demands-with the obvious exception of military development-there has been little pressure from anyone other than the aboriginal people for land claims settlements in Labrador.

 This, then, is the context within which the Labrador Inuit Association works and within which the Labrador Inuit land claim is being advanced.

The Labrador Inuit Land Claim

 When Minister of Indian Affairs and Northern Development Jean Chretien announced the federal government's land claims policy in August 1973, it appeared that Labrador was to be excluded from the areas of Canada in which the federal government believed "the traditional interest in land had not been formally dealt with". What were later to become known as "comprehensive claims" appeared to apply only to the northern territories, British Columbia, and northern Quebec. Therefore, one of the earliest tasks for the LIA was to confirm Labrador's place in the geographic scope of the claims policy. Once that recognition was forthcoming, the association entered into an agreement with DIAND, in September 1975, to research the basis of Labrador Inuit land claims. The project was completed and published in 1977.5

In March 1977, the association also completed and served on the federal government a "Statement of Claim to Certain Rights in Land and Sea-Ice in Northern Labrador". The claim was submitted to the Government of Canada as the level of government having proper constitutional responsibility for Labrador Inuit. The submission established that Labrador Inuit have an unextinguished and unsurrendered aboriginal interest in their lands and resources in the area including the island of Killinek and lands Iying between George River in northern Quebec and the height of land as far south as 55░. The southerly limit within Labrador includes the Mealy Mountains, and the easterly limit is the seaward extension of the land-fast Ša-ice from ap" proximately 54░ north to Killinek.

In July 1978, the federal government accepted the Statement of Claim and the Land Use and Occupancy Study as establishing the basis for negotiation of Labrador Inuit land claims under the 1973 claims policy.

The LIA claim submission was also forwarded to the Government of Newfoundland and Labrador in March 1977. This was seen as advisable because of legal precedent respecting the provincial interest in lands subject to aboriginal title and because of the clear statement in the 1973 federal policy that the negotiation of settlements with Indians and Inuit in the provinces would require provincial participation.

The Government of Newfoundland and Labrador initially rejected the LIA claim. However, in October 1980, the provincial government announced that it was prepared to negotiate settlements of land claims in Labrador on the basis of the 1973 federal policy.6 Settlements had to lead to the extinguishment of all aboriginal claims. In addition, the provincial government required a bilateral intergovernmental agreement with Canada regarding the roles and responsibilities of the two governments in relation to land claims prior to the commencement of negotiations with any aboriginal people. This requirement has not yet been met and may still be an obstacle to early settlements. It appears that the first intergovernmental meetings were held in the spring of 1981. By that time the 1981 federal policy restatement, In All Fairness: A Native Claims Policy,7 was in place, as was the "short list" approach to federal management of the negotiation process.

 The Short List

 The 1981 revision of the Federal Land Claims Policy resulted in the so-called "short list", consisting of six comprehensive land claims. Use of a short list of six claims has continued under the 1986 Federal Comprehensive Claims Policy as a means to maximize the effectiveness of limited federal funds and resources. The claims on the short list are considered by the federal government as those most likely to be successfully negotiated; those in which a settlement of claims in the disputed area is a priority; and those in which a provincial government is willing to become involved.

Neither the 1981 nor 1986 federal policies makes explicit reference to the short list. Few people know of its existence beyond a small circle of DIAND officials and native claimant groups; nor is it widely known that the Labrador Inuit claim is the only claim that has moved onto the short list since 1981.

 LIA realized that promotion to the short list is critical to a claimant group's chances of successful negotiation. The long periods of time being taken to settle claims meant that as long as the list of claims under active negotiation was arbitrarily limited to six, openings would occur only rarely, and the competition to fill the vacancies would be fierce; therefore, from 1981 to 1984, LIA's priorities were directed toward having the Labrador Inuit claim promoted to short-list, or "active negotiation", status.

 On 19 December 1984, Minister of Indian Affairs and Northern Development David Crombie announced that the Labrador Inuit land claim would fill the vacancy on the short list of claims under active negotiation created by the Inuvialuit Final Agreement. The minister's announcement set 1 April 1985 as the target date for the start of negotiations. However, formal tripartite negotiations between LIA, the federal government, and Newfoundland did not start until January 1989.

There were three primary causes for delay. The appointment in July 1985 of the Task Force to Review Comprehensive Claims Policy resulted in the December 1986 announcement by Minister of Indian Affairs and Northern Development Bill McKnight of a "new" federal policy. This development gave rise to subsequent provincial review of the 1986 federal policy and the formulation of a Newfoundland policy on land claims, a process which took a year to complete. Finally, ongoing bilateral negotiations between the federal government and Newfoundland, which began in 1981, have yet to produce an agreement.

 Impact of the Policy Review

Following David Crombie's December 1984 announcement, LIA geared up for full-scale negotiations. A preliminary meeting with the provincial government produced a tentative agreement to begin formal negotiations in the fall of 1985, since provincial officials anticipated that a bilateral intergovernmental agreement respecting claims in the province would be concluded by that time. However, shortly after announcing the federal policy review,

 Canada advised the province that the start of tripartite negotiations with the LIA would be delayed until the federal task force had completed its work. The province followed the federal lead by informing the LIA in October 1985 that it would not participate in tripartite negotiations until the following conditions were met: a federal policy was in place; the province had had an opportunity to evaluate its willingness to participate in claim negotiations in light of the new federal policy; and a bilateral intergovernmental agreement had been concluded.

 The province never responded directly to the new 1985 Federal Policy on Comprehensive Land Claims. Instead, in December 1987, the Government of Newfoundland and Labrador released its own land claims policy.8

 The provincial policy is a standalone document. It maintains the provincial commitment to negotiate a settlement of claims and insists on settlements providing certainty and finality respecting lands and resources within the claim area. Moreover, the policy expresses a preference for certainty and finality to be achieved by means of a cession and surrender of aboriginal title by the claimants in return for a governmental grant-back of defined rights, perceiving the provincial contribution to the settlement package as being one of land and resources. In contradistinction to the federal policy, the province does not accept that claimants can enjoy subsurface resource rights; nor does it appear to accept that resource revenue sharing is negotiable. The provincial policy emphasizes that the province will retain water management rights throughout the claim area, makes no mention of aboriginal participation in management  level decision making with respect to wildlife, and foresees aboriginal people playing a purely advisory role with respect to, and management of, lands and resources in the claims settlement area. With reference to the critical fisheries issue, the provincial policy makes clear that the existing and traditional rights of provincial fishermen are to be respected, particularly when it comes to allocation of the fisheries resource.

Clyde Wells's government has so far continued the land claims policy of the Peckford administration, with Mr. Wells as Minister Responsible for Native Affairs in the province. The key to the viability of the land claims policy may well lie in its self-proclaimed evolutionary nature rather than its dogma. Where change is required, it should not come through a formal policy review but should be driven by the requirements of the negotiation table and should come through the open-door accessibility of cabinet ministers and the premier, which are hallmarks of government in the province.

 The Newfoundland land claims policy highlights a critically important feature of the federal policy which is easy to overlook if one focuses only on claims north of 60░. The 1986 federal policy contains extensive deferral to provincial jurisdiction. For example, it states that, with the exception of the territories, most lands and resources fall into provincial jurisdiction; and, therefore, the participation of provincial governments in negotiation of native land claims is essential to settlements involving areas of provincial jurisdiction or provincial lands and resources. The federal Comprehensive Land Claims Policy, page 12, states, "in those cases where provincial lands are involved, the province must play a major part in determining the approach to be followed" regarding extinguishment and alternatives to extinguishment. With respect to subsurface resources the policy applies only to areas falling within federal jurisdiction, and so the policy on resource revenue-sharing arrangements applies only to federal royalties and the federal interest. In short, a close reading of the federal policy would suggest that the federal government views provincial policies and approaches to land claims issues as being of vital, if not paramount, importance.

Despite the aura of co-operation, the federal position concerning how broadly, and to what ends, the federal government will assert its exclusive jurisdiction with respect to aboriginal peoples and their lands remains ill-defined.

 The Canada-Newfoundland Intergovernmental Memorandum of Understanding

When the Government of Newfoundland and Labrador announced in October 1980 that it would participate in land claim negotiations, one of the preconditions to the start of tripartite negotiations with aboriginal claimants was a bilateral intergovernmental agreement on the respective roles and responsibilities of the two governments.

 Secret meetings between the governments first began in about May 1981 and were held intermittently to the summer of 1988. With the promotion of the LIA claim to the short list in December of 1984 came the announcement that negotiations between the governments had progressed to the stage where 1 April 1985 was set for the initiation of trilateral talks. However, in May 1985, an agreement still had not been concluded, and LIA was advised by Newfoundland that several areas required clarification.

 Efforts to iron out an intergovernmental memorandum of understanding (MOW) resumed in earnest after release of the new federal policy in March 1987. Officials of both governments concluded a tentative agreement in July 1987. The proposed MOU was approved by the Newfoundland cabinet in November 1987, only to be rejected by the federal cabinet in August 1988.

Not knowing the details of the proposed MOU makes an assessment of why the federal government did not approve it difficult. However, LIA has been advised that the delay in submitting the proposed MOU for federal cabinet consideration arose because federal officials did not find the proposed cost-sharing formula for financial compensation to be acceptable, owing to the implications it could carry for the settlement of other claims south of 60░. Departmental documents have suggested that there is a discrepancy between the Newfoundland policy and the earlier draft MOU and that if LIA did not accept, the provincial policy negotiations would be abandoned. A news story indicated that the package of benefits for native claims negotiable under the Newfoundland claims policy appeared too limited and restrictive to the federal government.

 Whatever the issues between the two governments may be, they now hang like an invisible sword over the tripartite negotiations. Rather than prolong the intergovernmental stalemate, provincial authorities announced on 12 October 1988 that preliminary discussions among all three parties involved showed that the LIA land claim was ready to proceed to active tripartite negotiations. The requirement that there be some form of intergovernmental agreement on governmental roles and responsibilities in relation to a final claims settlement with the Inuit of Labrador is likely to be pursued by Newfoundland prior to the conclusion of a final agreement. The Labrador Inuit hope is that tripartite negotiations will serve to prevent further stalemates when the intergovernmental issues are pursued in the future.9

The First Step: A Framework Agreement

 The first step in the negotiation of Labrador Inuit land claims will be the negotiation of a framework agreement.

 Framework agreements are intended to introduce a new measure of efficiency into the negotiation process. After the Coolican report10 and announcement of the 1986 federal policy it was assumed that framework agreements would be essentially procedural , non -binding , third- order agreements to set an agenda for negotiations, outline their scope, and establish dates for the completion of sub-agreements and the agreement-in-principle. However, the Newfoundland policy expresses the view that a framework agreement should "include agreement on the issues of eligibility criteria, the means of achieving certainty and finality of settlement, and third party interests". 11 This suggests that Newfoundland's perception of the breadth and depth of framework negotiations is far more extensive than anything contemplated by the Coolican report or federal

 The negotiation of a framework agreement that meets the requirements of Newfoundland's policy is likely to be a slow and detailed process. In the final analysis, there may be very little difference between a framework agreement as described in the Newfoundland policy and an agreement-in-principle. If the Newfoundland view prevails, the negotiation of a framework agreement may make the necessity of an agreement-in-principle altogether redundant. However, the federal policy requires both a framework agreement and an agreement-in-principle, with the framework agreement constituting little more than an agenda for negotiations. Under these circumstances, framework negotiations may produce a formal document which reveals little about the reconciliation of federal and provincial viewpoints that underlie it.

 From the aboriginal point of view, framework agreements represent an additional level of procedure or process which must be endured in order to come to grips with the substance of their claim. The negotiation process resembles a set of four Russian dolls consisting of a framework agreement, an agreement-in-principle, a final agreement, and implementing legislation. Each is identical, yet each is different. Each fits into the other. The puzzle is knowing whether the framework agreement is the inner- or outermost of the dolls, and whether its presence or absence will be significant to the whole.

 Conclusion

 The experience of the Labrador Inuit confirms that just getting to the negotiating table is a slow process. The fact that a claim can be "under active negotiation" for almost four years without a formal negotiation session ever having been convened must be a daunting prospect to all who are waiting to negotiate, and who find that the settlement of aboriginal land claims is a priority on the national agenda.

 

A decade has passed since the federal government accepted that the Labrador Inuit had a negotiable comprehensive land claim; eight years have gone by since the Government of Newfoundland and Labrador agreed to participate in negotiations. The delay has not been without significant developments. LIA, either alone or in conjunction with other organizations and agencies, has attempted to solve the social, legal, and economic problems of its membership and to advance Inuit cultural interests. Since 1973 the Labrador Inuit Association has sponsored at least nine affiliated organizations which are involved in providing housing, health services, communications, fisheries and wildlife management, economic development, legal assistance, alcohol and drug counseling and rehabilitation, and cultural programs. These organizations provide employment to approximately 90 peoples12 and confirm the deep commitment to self-advancement, self-help, and self-determination on the part of the Labrador Inuit. They also demonstrate how the Labrador' Inuit are resuming control over their own lives and their own communities. The negotiation and settlement of land claims and self-government for Labrador Inuit are central to that process.

The decade of waiting has also revealed a great deal about government' policy and governmental approaches to the settlement of claims. The new federal policy defers to provincial jurisdiction in the vital areas of lands, resources, environment, and wildlife. Federal legislative authority under section 91(24) of the Constitution Act, 1867, appears to have been downplayed in the face of provincial powers under Section 92. The lack of a coherent federal policy on how the government intends to fulfil its responsibilities on behalf of aboriginal people confirms suspicions that the trend will be to defer ta provincial interests by interpreting federal jurisdiction under s. 91 (24) as restrictively and narrowly as possible. The result may be to encourage independent, if not inconsistent, provincial policies and approaches to the settlement of land claims. The absence of clear policy on this issue may also be the cause of evident inconsistencies in the federal approach. How else can one explain the federal government's willingness to negotiate bilaterally with the Nisgas on the one hand, and its unsuccessful attempt to avoid negotiations with the Labrador Inuit on the other, unless the strategy was to defer to provincial policy?

 Federal and provincial efforts to arrive at an intergovernmental agreement on their respective roles and responsibilities in relation to land claims in Newfoundland and Labrador appear to be a replay of issues already dealt with in Canada v. Ontario (The Indian Annuities Case] 3 and in intergovernmental agreements. 4 This is because the aboriginal interest has been almost entirely discounted by the federal policy, which speaks throughout of federal or provincial lands and resources as if the aboriginal interest has already been cleared away. From the provincial point of view, the new federal policy on offshore areas, subsurface rights, resource revenue sharing and participation by aboriginal people in management decision making with respect to environmental, land-use, and wildlife matters may be interpreted as an attempt to shift responsibility for compensation to the provinces. This would be achieved by replacing federal lump-sum monetary payments to aboriginal people with a system of sharing in the benefits of provincial resource developments and participation in provincial decisions on development. It is not surprising that these issues are difficult to resolve with Canada's newest and poorest province. It remains to be seen whether the federal government will take a strong leadership role in bilateral discussions with provincial governments prior to the commencement of claim negotiations. However, those bilateral discussions held in the absence of the aboriginal claimants, and where federal negotiators are guided by the provisions of the 1986 federal policy, will continue to cast doubt and uncertainty on the role played by the federal government in native land claim negotiations.

 Governments view aboriginal affairs as primarily a federal-provincial constitutional matter, and the ongoing intergovernmental competition for power and authority with respect to aboriginal people eclipses the interests and values that are really at stake. The whole process of incomplete bilateral negotiations, buttressed by publicly announced and inconsistent policies on land claims, tends to confirm the suspicion that aboriginal rights and interests are, and remain, a third-order priority suborned to both the competing interests of the two levels of government and to the demands for power, land, and resources of the dominant society which they represent. Native people view this entire process as a complete reversal of the tenets of s. 35(1) of the Constitution Act, 1982 which they interpreted as putting their most fundamental rights beyond the jurisdictional reach of either level of government. Thus, the federal policy, as it applies south of 60░, has become an instrument for implementation of the 1969 White Paper recommendation that jurisdiction over aboriginal peoples and their lands devolve to the provinces.15

The question of whether the 1986 federal policy will be effective in promoting settlement of aboriginal land claims in the provinces without abandoning responsibility for the aboriginal peoples concerned will not be answered in the short term. The task is undeniably problematic. The prospects based on the current federal policy are not good. Federal-provincial jurisdictional approaches to aboriginal peoples may continue to minimize the power of aboriginal, treaty, and land claims rights to protect aboriginal peoples and their cultures, notwithstanding s. 35 (1) of the Constitution Act, 1982.

 

 

Endnotes

 

1. Statement made by the Hon. Jean Chretien. Minister of Indian Affairs and Northeern Development, on Claims of Indian and Inuit People, 8 August, 1973.

2. Department of Indian Affairs and Northern Development, 1987 Comprehensive Land Claims Policy, Minister of Supply and Services Canada, Ottawa.

 3. Terji Brautenberg, "Ethnic Commitments and Local Government in Nain, 1969-76", Robert Paine, ed., The White Arctic (St John's, 1977) pp. 392-395.

 4. Building on Our Strengths, Report of the Royal Commission on Employment. (St John's, 1986) p. 234. Sec also: C. Brice-Bennett, Renewable Resource Use and Wage Employment in the Economy of Northern Labrador, Background Report for the Royal Commission on Employment and Unemployment, (St John's, September 1986).

 5. Labrador Inuit Association, Our Footprints Are Everywhere: Inuit Land Use and Occupancy in Labrador. Edited by Carol Brice-Bennett (Nain, 1977).

 6. Statement by Premier A. Brian Peckford on the Question of Native Land Claims in thc Province, 7 October, 1980.

 7. In All Fairness: A Native Claims Policy. (Minister of Supply and Services Canada, Ottawa 1982).

 8. Government of Newfoundland and Labrador, Policy Regarding Aboriginal Land Claims, Intergovernmental Affairs Secretariat, St. John's, Newfoundland, December 1987.

9. Press statement issued by the Hon. Ron Dawe, Minister for Intergovernmental Affairs, Goose Bay, October 12, 1988. Press release issued by Labrador Inuit Association, Nain, October 12,1988.

 10. Living Treaties: Lasting Agreements, Report of the Task Force to Review Comprehensive Claims Policy, Minister of Indian Affairs and Northern Development, Ottawa, 1985.

I I. Policy Regarding Aboriginal Land Claims, p. 4.  12 C. Brice Bennett, op. cit., pp. 120 121.

 13. Dominion of Canada v. Province of Ontario, [1910] A.C. 637 J.C.P.C.). Scc also Geoffrcy Lcster "South of 60░: A Legal Reminder", Northern Perspectives, Vol. 15, No. 1,1987 p. 18.

14. See, generally, Gerard V. La Forest, Natural Resources and Public Property under the Canadian Constitution, (Toronto, 1969) pp. 125-133.

15. Department of Indian Affairs and Northern Development, White Paper on Indian Policy, Department of Indian Affairs and Northern Development, (Ottawa, 1969).
 

Veryan Haysom is a lawyer in Mahone Bay, N.S., and is retained by the Labrador Inuit Association. The views expressed are those of the author and not those of the Labrador Inuit Association.


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