Land Claims Agreement Research Articles

Implications of Tenure Insecurity for Aboriginal Land Use in Canada

In Canada, Aboriginal peoples are succeeding at regaining portions of their traditional land base. Accomplished through the signing of historic treaties and the negotiation of comprehensive land claims agreements, nearly seven percent of Canada's entire land base is now under the administrative authority of Aboriginal governments. Notwithstanding these accomplishments, it remains unclear whether such territorial gains coincide with a heightened sense of tenure security. Together with the Little Red River Cree Nation of Alberta and the Little Salmon/Carmacks First Nation of the Yukon Territory, we set out to learn how First Nation members perceive their access to traditional lands to be changing over time and by generation. Findings indicate that despite various tenure reforms, First Nation members remain concerned that their traditional territories are susceptible to the interests of others. Given that perceptions of tenure security informs the basis by which people exploit resources, these conditions cou...

Old Wine in New Bottles? Instrumental Policy Learning and the Evolution of the Certainty Provision in Comprehensive Land Claims Agreements

Comprehensive land claims agreements are important tools for empowering Aboriginal peoples. A crucial part of these treaties is the certainty provision, which deals with the nature of Aboriginal rights and title once a treaty is signed. Up until 1986, the Crown insisted on one certainty formula for all treaties. After 1986, however, Aboriginal groups were able to negotiate alternatives to the original certainty provision. This paper seeks to explain why alternatives to the original certainty provision emerged after 1986. It suggests that government perceptions of policy failure, generated by Aboriginal opposition to the extinguishment clause, resulted in the Crown engaging in instrumental learning.

Land Claims and Resistance to the Management of Harvester Activities in Nunavut

In 1976, Inuit leaders in what is now Nunavut began the long process that led to a comprehensive land claim to regain control of their lives and land. Previously, they had seen their economic, social, political, educational, and belief systems diminished and the people disempowered by the imposition of Western systems, structures, and practices. To reverse the existing relations, Inuit leaders had to call upon the ideologies and institutions of the dominant society—a process greatly misunderstood by Inuit harvesters and others within the communities. The disconnect between Inuit harvesters’ expectations of the Nunavut Land Claim Agreement (NLCA) and the realities experienced in the communities have made ocean resource management a site of growing resistance in the North. Common misconceptions were that the Nunavut Government would be an Inuit government and that land-claim “compensation” would involve per capita distributions and injections of cash into the hunters and trappers’ organizations. Instead, communities were expected to abide by the decisions of the Nunavut Wildlife Management Board—a tripartite joint-management arrangement between the federal and territorial governments and Inuit organizations—and to cooperate with the increasing demands from government departments and science researchers for local information and participation. The community response to these impositions was to obscure the gaze of inquiring governments and outsiders through creative acts of resistance. To mediate the situation, increased involvement from federal and territorial resource managers in terms of support, capacity building, information exchange, and federal/territorial/community relationship building is encouraged.

Nationality and'Aboriginal Rights' in Post-Soviet Siberia

One of the hallmarks of the post-war period has been the growth of identity politics in most, if not all, states. It is as if the constellation of forces which drew battle lines across continents have also forced at least three generations of citizens to look inwards to define the boundaries of their selves. Northern aboriginal societies arguably have been at the forefront of this process. The circumpolar region is well-populated with complementary idioms of self-government, primary aRd secondary `first' nationhood, assertions of moral and territoriai integrity, and calls for the revival or purification of tradition. It would be hard to deny that the last forty years have been a remarkably creative period for Northerners with some of the most jnteresting new models of the relation between person and territory being pioneered in Arctic environments. A few of the best concrete examples would the comprehensive land claim agreements of Canada, international wildlife management boards, international political fora such as the Saami parliament or the inujt circumpolar congress, or subtle autonomous enclaves such as Nunavut, Greenlandic Home Rule, and the autonomous districts of Siberia. Recently, northem indigenous political models have once again drawn the attention of political philosophers (Kymlicka 1995; 1999; Peterson 1998; Taylor 1994) reminding one of an earlier period when they informed the political philosophy of Montaigne, Rousseau, Locke, Marx, and Engels (Brandon 1986; Johansen 1982; Grant 1998; Grinde and Johnson 199l). There need not be anything mystical behind the rise of the North in world politics.i Since the settling of scores in l945, northern landscapes and northern peoples became strategic sites for the articulatioR of the power of nation-states. One of the fascinating products of this intensified interest of the fatherland or of `the Crown' in the lives and allegiance of northern peoples has been the wide acceptance of the conoept of aboriginality. In the period following the collapse of the Soviet Union, and with it the morally-tinged battle between competing ideological blocks, the intertwined concepts of aboriginal rights and nationality have now become two of the most powerfu1 counter-weights to the Iaws governing the flow of commodities and of capital. The purpose of this paper is to give an anthropologically grounded critique on the notion of `aboriginality' with special emphasis on Siberia. I will argue that as anthropologists we must be carefu1 not to take the concept of aboriginal rights as self-evidently appropriate but that we should use our ethnographic and interpretative skills to situate it in broader conceptions of social power. Through the example of the rapidly developing and new

The Devolution of Natural Resources and Nunavut’s Constitutional Status

Nunavut was created by federal statute in 1999, to meet the Crown’s obligations under Article 4 of the Nunavut Land Claims Agreement (NLCA) and the associated Nunavut Political Accord. The Nunavut Act was based upon the Northwest Territories Act, but “modernized.” Since the 1905 creation of Alberta and Saskatchewan from the North-West Territories, territorial governments have gradually evolved in the direction of provincial status, while remaining under ultimate federal jurisdiction. Important matters to be reviewed include the following: (1) Are the parties (the federal government, the Government of Nunavut, and Nunavut Tunngavik Inc.) committed to serious negotiations? (2) What additional legislative powers would be conferred with the devolution of Crown lands and resources? (3) Will the existing federal programs for the administration of Crown lands and resources be adequately resourced? (4) To what extent will devolution provide significant own-source revenues to the Nunavut government, both in the short run and in the longer term? (5) How may federal-Nunavut fiscal transfers be affected? (6) In what respect is the devolution process likely to enhance or detract from the meeting of government obligations pursuant to the NLCA, particularly Article 23? (7) Given the provisions of the Nunavut Act, the NLCA, and federal-provincial considerations, how will the offshore areas and their resources be treated? The ultimate questions to be considered are whether the devolution of Crown lands and resources will advance the constitutional status of Nunavut; whether such devolution would be otherwise beneficial to the government and people of Nunavut; and whether provincial status is ultimately the best objective for Nunavut or, as Gordon Robertson describes it, “a mistaken goal.”

Governance in Nunavut: Capacity vs. Culture?

A key objective of Inuit political leaders in pushing for the creation of a Nunavut Territory was the establishment of a governance regime that would not only be numerically controlled by Inuit, but would also in a real sense be an Inuit government. Among other things, this would entail developing institutions and processes congruent with Inuit culture and values, and ensuring that the new regime did not “duplicate Yellowknife”—that is, simply replicate the structures, processes, and attitudes that characterized the Government of the Northwest Territories prior to division. This essay assesses the governance regime in Nunavut against these objectives. Specific attention will be devoted to the basic structure and operation of the Government of Nunavut, including its decentralization initiative and its efforts to achieve high rates of Inuit participation in the public service; the political-governmental role of Nunavut Tunngavik Incorporated, the Inuit land-claim organization; the activities of the co-management and regulatory boards established under the Nunavut Land Claims Agreement; and municipal government.

Land Claim Agreements in Arctic Canada in Light of International Human Rights Norms

Abstract This article examines land claim agreements in Arctic Canada in light of international human rights norms, in particular the ICCPR, the CERD Convention, ILO 169 and the Inter-American human rights instruments and practice. The paper concludes that some of the provisions of land claim agreements are inconsistent with these norms. The paper also argues that land claim agreements should be based on the legal duty to recognise, delimit and title traditional occupation lands.

Development corporations in the Canadian north – examples for economic grassroots initiatives among the Inuit

Starting with the James Bay and Northern Quebec Agreement of 1975 until the Nunavik Inuit Land Claim Agreement of 2006, the Inuit in Canada have negotiated some of the most extensive land claim agreements found in the Arctic region, opening up a variety of development opportunities for the beneficiaries of these regional agreements. One of the central purposes of these modern land claim agreements is to create an economic base and to promote economic self-reliance for the Inuit beneficiaries. As part of a local grassroots economic development movement that can be witnessed in these regions, development corporation were created starting in the 1970s with the mandate to invest capital into busi nesses and economic projects to create jobs and income for the local Inuit population. This paper will look at the efforts of two particular development corporations: the Makivik Corporation in Nunavik (Northern Quebec) and the Labrador Inuit Development Corporation (LIDC) in Nunatsiavut (Northern Labrador).

Old Wine in New Bottles?: Instrumental Policy Learning and the Evolution of the Certainty Provision in Comprehensive Land Claims Agreements

Les accords en matière de revendications territoriales globales sont des outils importants pour renforcer l’autonomie des peuples autochtones. La disposition relative à la certitude, qui traite de la nature des droits et des titres ancestraux des Autochtones une fois un traité signé, est un aspect essentiel de ces traités. Jusqu’en 1986, la Couronne a favorisé l’utilisation d’une seule formule relative à la certitude dans la négociation de tous les traités ; mais, après 1986, des groupes autochtones ont pu négocier des variantes de cette formule. Dans cet article, je tente d’expliquer pourquoi ce changement s’est produit. Je suggere ainsi que c’est devant l’échec de sa politique, engendrée par l’opposition des Autochtones à la clause d’extinction, que la Couronne a du revoir cette politique.

Canada's Experiment with Aboriginal Self-Determination in Nunavut: From Vision to Illusion

AbstractThe paper presents a geographical and historical overview of the Territory Nunavut (Canada) established in 1999 and inhabited by a majority of Inuit People. The author outlines the process that led to the conclusion of the Nunavut Land Claims Agreement and the current structure of the government of Nunavut, which can best be described as a form of Inuit self-government. Th e main objective of the paper consists in an overview and analysis of current socio-economic challenges faced by the government of Nunavut. Based on the visions of the Bathurst Mandate, the author attempts to assess the success of the ‘Nunavut Project’.The author concludes that because of Nunavut's weak economy and fi scal dependency on the central federal government of Canada, the numerous socio-economic challenges have not been resolved. The Nunavut experiment has not yet been proven a success. The prosperous vision, expressed through the Bathurst Mandate, of a viable Nunavut seems for now just an illusion.

The effects of human land use on the winter habitat of the recovering Carcross woodland caribou herd in suburban Yukon Territory, Canada

Carcross woodland caribou (Rangifer tarandus caribou) numbers are increasing as a result of an intensive management and recovery program initiated in 1993. In the last 13 years, three overlapping First Nation land claim agreements were settled resulting in a complicated array of private and public land management authorities on this winter range, situated in the Whitehorse periphery. Twelve years of VHF radio-collar data (1994-2005) and 5 years of GPS radio-collar data (2000-2005) for female caribou were assessed to determine winter concentration areas and important winter habitats. We contrasted locations from 11 GPS radio-collared caribou with land cover classes, derived from classified Landsat 7 imagery, to evaluate the distribution and abundance of preferred habitats within this winter range. We found significant use of Open Needle Leaf lichen vegetation classes and avoidance of the relatively more abundant Closed Needle Leaf class. Our resource selection function model validated the preference for Open Needle Leaf Lichen and determined that caribou were spaced significantly further from an estimate of the human Zone of Influence (ZOI) than was expected from random locations. While our assessment determined that 64% of the winter range was located outside of either private lands or land influenced by human activity, key winter vegetation classes were under-represented within this area. If caribou are to successfully recover on this landscape and persist through time it is essential to manage, through meaningful participation among land management authorities, the remaining caribou habitat for environmental rather than human consumptive values.

Aboriginal Impact and Benefit Agreements: Practical Considerations

Resource development on Aboriginal lands consultation with Aboriginal peoples and subsequently the negotiation of Impact Benefit Agreements (IBAs). Case law in the area is rapidly emerging and standards for industry have increased. Similarly, the application of land claim agreements, agreements in principle and a variety of provincial and federal legislation creates a complex web of considerations for negotiating IBAs. Drawing on industry experience and existing jurisprudence, what follows is an explanation of: why IBAs need to be negotiated by developers: information on key and contentious elements; critical planning considerations; and guidance for navigating this complex and uncertain territory with a view to creating mutually beneficial commercial relationships.

Caribou co-management in Nunavut: Implementing the Nunavut Land Claims Agreement

In 1993 the Nunavut Land Claims Agreement (NLCA) was signed and this lead to the creation of Nunavut in 1999. Under the NLCA caribou and other wildlife in Nunavut are co-managed by government and Inuit. The Nunavut Wildlife Management Board (NWMB) is the main instrument of wildlife management, working with its government and Inuit co-management partners to manage caribou within the principles of conservation outlined in the NLCA, using both west¬ern scientific knowledge and traditional knowledge. When caribou herds cross provincial or territorial boundaries, management boards or management planning committees are established.

Sustainable Development in Nunavut: The Role of Geoscience

The demographics of Nunavut indicate a very young and poorly educated population spread over wide areas in small isolated communities. The current economic sectors will be unable to expand and meet the demands of this emerging workforce. Given the realities of Nunavut, the most promising direction in which the economy may expand is through mineral development. The Nunavut Land Claims Agreement (NLCA) has established the legislative framework for sustainable development in Nunavut through mineral development. The NLCA has transferred ownership for much of Nunavut’s potential mineral resources to beneficiaries of the lands claim. Royalties generated from mining operations on subsurface Inuit-owned lands, and to a lesser extent on Crown land, will flow back to beneficiaries of the lands claim through their administrative company, which may then be invested in the communities. Additional benefits of mineral resource development in Nunavut will be realized through impact and benefit agreements. To realize the benefits from mining operations, Nunavut has to be able to attract and support exploration and development companies through the release of high-quality geoscience data. However, due to Nunavut’s isolation and the expense of conducting geoscience fieldwork, the jurisdiction lags far behind the rest of Canada in terms of quality and quantity of government geoscience. About 70% of the territory is inadequately mapped to attract exploration companies or to make informed land-use decisions. The role of government-funded geoscience in Nunavut is to stimulate exploration and discovery through new framework mapping and focused thematic projects. The timely delivery of high-quality geoscience products will attract exploration companies to Nunavut and further their efforts to discover and develop mineral resources in order that the subsequent benefits of this activity may flow to the beneficiaries of the NLCA as well as all other residents of Nunavut.

"Property" and Aboriginal Land Claims in the Canadian Subarctic: Some Theoretical Considerations

Many of the world's aboriginal peoples are currently engaged in struggles over land and self‐government with the states that encompass them. In Canada, aboriginal people have effectively used the concept of "aboriginal title" to force the government to negotiate land and self‐government agreements with them. Such agreements, however, along with the notion of "aboriginal title" itself, are based on the European concept of "property"; they grant First Nations "ownership" of certain lands and spell out the rights they possess in relation to those lands. This means that aboriginal people have had to learn to think and speak in the "language of property" as a precondition for even engaging government officials in a dialogue over land and sovereignty. Yet the concept of property is in many ways incompatible with many Canadian First Nation people's views about proper human‐animal/land relations. In this article, I argue that the land claim process—because it forces aboriginal people to think and speak in the language of property—tends to undermine the very beliefs and practices that a land claim agreement is meant to preserve. [Key words: property, First Nations, aboriginal land claims, Canada, Subarctic]

The Gwich'in Traditional Caribou Skin Clothing Project: Repatriating Traditional Knowledge and Skills

... The Gwich'in are the most northerly of the Athapaskan peoples occupying parts of the Yukon River drainage in Alaska and the Yukon Territory, and the northern Mackenzie Basin of the Northwest Territories. The project described here was sponsored by the Gwich'in who reside in the Northwest Territories. Traditionally their lands extended from the interior of the Yukon into the Mackenzie Basin and included the watersheds of the Peel, Mackenzie, and Arctic Red Rivers. Today, most NWT Gwich'in live in the four communities of Aklavik, Fort McPherson, Inuvik, and Tsiigehtchic (formerly called Arctic Red River). These communities all fall within the Gwich'in Settlement Area that was established by the Gwich'in Comprehensive Land Claim Agreement signed in 1992 with the Government of Canada. People in the Gwich'in Settlement Area are greatly interested in materials that were collected in earlier times and are now housed throughout the world in museums, archives, and private collections. These items represent a bygone era and have great historical, cultural, and sometimes spiritual meaning. Of particular interest is traditional Gwich'in summer clothing made of white caribou hides, sewn with sinew, and decorated with porcupine quills, trade beads, silverberry seeds, finges, and ochre. Distinctively styled and striking to look at, these garments are a testament to Gwich'in women's great skill and artistic expression. ... It has been well over 100 years since Gwich'in traditional caribou skin clothing was made, and there are no examples of this clothing in either the Gwich'in communities or the Northwest Territories today. It has been over 50 years since porcupine quillwork was used as the primary decorative motif on Gwich'in jackets, slippers, and gloves. For the past two years, the Gwich'in Social and Cultural Institute (GSCI) has worked in partnership with the Prince of Wales Northern Heritage Centre (PWNHC) to create five replicas of a multipiece 19th-century Gwich'in traditional summer outfit that is housed at the Canadian Museum of Civilization (CMC). The project has given us an opportunity to document, understand, and appreciate how this clothing was manufactured and the extraordinary amount of time, knowledge, and skill that Gwich'in women needed to clothe their families and protect them from the elements. It has also helped to repatriate skills and knowledge no longer practiced in the Gwich'in Settlement Area.

Treaty Federalism in Northern Canada: Aboriginal-Government Land Claims Boards

Treaty federalism in North America encompasses not only governance implications of the historic treaties signed with Aboriginal peoples, but also the modern-day treaties known as “comprehensive land claim agreements.” This article explores how treaty federalism is realized in Northern Canada through claims-mandated joint government-Aboriginal boards dealing with wildlife management, land-use planning, and environmental protection. These boards, existing at the intersection of the three orders of government-national, federal/territorial, and Aboriginal—are found to be unique governance institutions, with substantial independence from government. They have significantly enhanced Aboriginal peoples' influence over land, wildlife, and resource decisions, but the extent to which they bring Aboriginal culture and worldviews to bear in decision-making remains an open question. Copyright 2002, Oxford University Press.

Canadian Beaufort Sea 2000: The Environmental and Social Setting

The Beaufort Sea Conference 2000 brought together a diverse group of scientists and residents of the Canadian Beaufort Sea region to review the current state of the region's renewable resources and to discuss the future management of those resources. In this paper, we briefly describe the physical environment, the social context, and the resource management processes of the Canadian Beaufort Sea region. The Canadian Beaufort Sea land area extends from the Alaska-Canada border east to Amundsen Gulf and includes the northwest of Victoria Island and Banks Island. The area is defined by its geology, landforms, sources of freshwater, ice and snow cover, and climate. The social context of the Canadian Beaufort Sea region has been set by prehistoric Inuit and Gwich'in, European influence, more recent land-claim agreements, and current management regimes for the renewable resources of the Beaufort Sea.

Modern Land Claim Agreements and Northern Canadian Aboriginal Communities

The Canadian government's attempt to create a sound economic system within Aboriginal communities began more than four decades ago. In the mid-1970s, the settlement of Modern Treaties started as a new approach to finding permanent solutions to Aboriginal economic and social problems. Some analysts believe that Modern Treaties provide a strong foundation for sustainable Aboriginal socio-economic development. Others argue that the financial compensations received through the agreements were inadequate to attain a meaningful transformation of Aboriginal communities. This paper examines the impact of Modern Treaties on the economic and socio-demographic status of Aboriginal communities in the Northwest Territories and Northern Quebec.

Aboriginal Rights in Transition: Reassessing Aboriginal Title and Governance

In the past five years, there have been some very significant political and legal developments in relation to the Aboriginal peoples of Canada. On 1 April 1999, Nunavut emerged as a new territory in the central Arctic, under the de facto control of the Inuit residents who comprise about 85 percent of the population. previous August, the Nisga'a Agreement was initialed in British Columbia after almost twenty-five years of negotiations. This is the first modern land-claims agreement to be signed in a province where most of the land is claimed by Aboriginal peoples by virtue of their Aboriginal title. On 7 January 1998, the Canadian government announced a new policy of reconciliation with the Aboriginal peoples, aimed at strengthening Aboriginal governance and economic development, and healing some of the wounds caused by the tragic legacy 0f the residential school system. This policy initiative was in partial response to the massive five-volume Report of the Royal Commission on Aboriginal Peoples, released in the fall of 1996, that condemned Canada for its past treatment of the Aboriginal peoples and recommended a fundamental restructuring of the relationship based on principles of mutual recognition, respect, sharing, and responsibility. These political arrangements and policy initiatives have been matched by equally dramatic developments in the law of Aboriginal rights by the Supreme Court of Canada. In a series of important decisions, the Court has come to grips with a number of issues that it did its best to avoid in the past, involving the identification and definition of Aboriginal rights, the content of Aboriginal title to land and the requirements for proving it, and the relevance of the law of New France to Aboriginal rights today. This paper will focus on these recent developments in the law, as well as attempting to identify areas where the law of Aboriginal rights is incomplete and so requires further judicial elucidation. Constitutionalization of Aboriginal Rights and the Integral to the Distinctive Culture Test Prior to three decisions released by the Supreme Court in August of 1996, which are collectively known as the Van der Peer trilogy, there were no clear legal guidelines for identifying and defining Aboriginal rights. Those rights were generally known to arise from the precolonial presence of Aboriginal societies in Canada and their occupation of lands but, prior to 1996, the Court had not laid down any rules for determining which practices and traditions qualified for protection as Aboriginal rights and which did not. This matter became particularly important when Aboriginal rights were accorded constitutional protection (along with treaty rights, which will not be discussed in this paper) at the same time as the Canadian Charter of Rights and Freedoms was introduced in 1982. This protection was provided by section 35(1) of the Constitution Act, 1982, which states that The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. [1] intention was to i dentify and define Aboriginal rights by political means and, possibly, by further constitutional amendment. But even though four constitutional conferences were held in the l980s to accomplish this task, the talks foundered over the issue of Aboriginal self-government. As a result, identification and definition of Aboriginal rights were relegated to the legal forum of the courts by default. [2] Supreme Court first considered the effect of the constitutionalization of Aboriginal rights in the Sparrow case, decided in 1990. [3] In that case the right in question--the right of the Musqueam Nation in British Columbia to fish for food, societal, and ceremonial purposes--was accepted by the Court without the need to formulate a test for identification of Aboriginal rights generally. Court focused instead on the issues of extinguishment and infringement of Aboriginal rights, holding that the rights constitutionalized in 1982 are those that were existing in the sense that they had not previously been extinguished by clear and plain legislation or treaty. …