can modern treaties be saved? - northern public affairs

Northern Public AffairsVolume 1, Issue 3 Spring 2013

Implementing the promiseof modern treatiesJESSICA ORKIN

Honouring our treaties: Will Canada ever “get it”?TERRY FENGE

Financing Aboriginal self-governmentTOM McCARTHY

Cutting our heritage at Library and ArchivesCanadaMYRON GROOVER

Idle No More in Nunavut?LAAKKULUKWILLIAMSON BATHORY

Challenging free entrystaking in YukonKIRK CAMERON

What’s wrong with the Northern Jobs and Growth Act?KEVIN O’REILLY

Canada $9.99northernpublicaffairs.ca

A conversation with CHRIS ALCANTARA about his new book, Negotiating the Deal

NUNAVUT SIVUKNIKSAVUT students on what the Nunavut Land Claims Agreement means to them

AVIAQ JOHNSON’s journey to reclaim her mother tongue

CAN MODERN TREATIES BE SAVED?

“[W]hen the Nishga people came under British sovereignty... they were entitled to assert, as a legal

right, their Indian title. It being a legal right, it could not thereafter be extinguished except by surrender to the Crown or by competent legislative authority, and

then only by specific legislation.”

— Calder et al. v Attorney-General of British Columbia, [1973] SCR 313 at 402.

Northern Public AffairsSpring 2013

FEATURES

LETTER FROM THE EDITORCommemorating Canada’s treaty heritage

forty years after Calder

LETTERS

OVERHEARDStatement by NWT MLA Bob Bromley

IN CONVERSATIONProfessor Chris Alcantara

NUNAVUT SIVUKNIKSAVUTWhat the Nunavut Land Claims Agreement

means to me...

ARTICLES

4

6

10

14

19

MODERN TREATIESKeeping the promise:

The implementation of modern treaties in CanadaJessica Orkin

Sources of funds, sources of frustrationsTom McCarthy

Library and Archives Canadaand the federal government

Myron Groover

Implementing the Nunavut agreementand other modern treaties

Terry Fenge

23

26

34

36

SOCIETYNaamaleqaaq! Idle No more in the Arctic

Laakkuluk Williamson Bathory

My mother tongueAviaq Johnson

GOVERNANCEChallenging free entry staking

Kirk Cameron

Digging beneath the surface:The NWT Surface Rights Board Act

Kevin O’Reilly

39

42

45

48

FEATURES

4

n this issue of Northern Public Affairs, we seize an important moment in Canadian history to

honour the richness of Indigenous and Western traditions embodied in modern treaties.

This year marks the 250th anniversary of the Royal Proclamation (1763), the 40th anniversary of the Supreme Court of Canada’s Calder decision (1973), and the 20th anniversaries of the Nunavut (1993) and Yukon (1993) treaties.

These events have profoundly shaped the political and economic relationships governing both Indigenous and non-Indigenous Canadians, and they should be recognized for their contribution to Canadian public life, both past and present.

Unfortunately, these anniversaries may seem obscure to many Canadians. Treaty scholar J.R. Miller notes that “although [treaties] have been an important feature of the country since the earliest days of contact between Natives and newcomers, relatively few Canadians understand what they are or the role they have played in the country’s past.” They are, he argues, “part of the foundation of the Canadian state.”

If true, this would be more than unfortunate, for it would suggest that many Canadians lack basic knowledge about the Indigenous and Euro-Canadian aspects of their history and their political institutions. Civic duty — the basic commitment of citizens to their democracy and to each other —suffers as a result.

A brief history is in order. The Royal Proclamation of 1763 — sometimes referred to informally as the Indigenous “Magna Carta” — is the earliest statement of imperial policy recognizing Indigenous rights to lands in northeastern North America. By forbidding colonial governments from granting unceded lands, prohibiting private individuals from purchasing them, and establishing principles governing the procedure for subsequent treaty-making, the Proclamation created the basis for Canadian political and economic expansion into Indigenous lands . It also created the honourable and enduring “nation-to-nation” relationship between Indigenous people and the Crown.

Between 1781 and 1921, over four hundred treaties, adhesions, and land surrenders were

negotiated, first in Upper Canada, and then in the areas that would become Manitoba, Saskatchewan, and Alberta. The last of these so-called “historic treaties” was signed in the Northwest Territories in 1921. The provisions of the Proclamation also stood in the way of American expansion, exacerbating tensions that led to the War of 1812. Today, the Royal Proclamation echoes in our constitution, which recognizes and affirms Aboriginal and treaty rights, and creates a basis for the negotiation and settlement of modern treaties.

The Calder decision of 1973 is also worthy of commemoration. At a time when Canada’s official policy toward Indigenous people had been one of assimilation, the Supreme Court in Calder reaffirmed the existence of “Aboriginal title” in Canada and helped to bolster a growing Indigenous movement.

As a result of this decision, and in the face of overwhelming change in public values, the federal government was forced to recognize Indigenous claims to title over lands that had not been extinguished by the historic treaties or in subsequent legislation. And so began a period of treaty-making that continues to this day. Since Calder, we have seen the settlement of 27 comprehensive land claims and self-government agreements in B.C., Yukon, the Northwest Territories, Nunavut, and Labrador. Two of these — the Nunavut and Yukon final agreements — turn twenty this year.

Increasingly, modern treaties are shaping regional politics and economies by assigning negotiated rights, benefits, and obligations to Indigenous peoples, government, and third parties. However, the articles in this issue of Northern Public Affairs suggest the implementation of these agreements falls short of the solemn promises exchanged between Indigenous people and the Crown.

This situation must be rectified. But if recent public reaction to Indigenous demands for honourable recognition are any indication, perverse attitudes toward Indigenous institutions will no doubt get in the way.

Take Idle No More as an example. This movement erupted in Indigenous communities across the country against a backdrop of longstanding grievances against the Crown, including its failure

LETTER FROM THE EDITOR

Commemorating Canada’s treaty heritage forty years after Calder

Joshua Gladstone

Northern Public Affairs, Spring 2013

I

to fully honour historic treaties. Indigenous people argued that their lands and livelihoods were threatened by the imposition of the federal omnibus legislation, which substantially removed environmental protection over lands to which many Indigenous people are economically, culturally, and spiritually connected.

Attawapiskat Chief Theresa Spence lodged a long list of demands, using personal sacrifice as leverage. But amidst the calls to address longstanding issues of poverty, hunger, overcrowded housing, basic education, and healthcare, one demand stood out: the federal government should respect the treaty relationship.

But mainstream public opinion turned against Spence. Commentators derided agents of the movement for living in a “dream palace of memory.” The federal government had already diminished the community leadership’s moral authority the year before when it imposed third party management in response to a state of emergency called because of an ongoing housing crisis. Spence — an elected representative of her First Nation — was cast as a corrupt and incompetent administrator, rather than a national leader whose calls for support deserved respect.

Of course there was also support for Spence and the Idle No More movement. But it came from the Indigenous, religious, environmental, and human

rights groups whose influence has so far been unable to affect substantive change in government policy.

Clearly, for change to happen it must be accompanied by a shift in the way the Canadian public understands the historical continuity of Indigenous nationhood in all aspects of public life. To achieve this, ongoing public education is needed on a national scale.

Last year, the Prime Minister was keen to commemorate the War of 1812 with a host of activities and expensive messaging. He invited all Canadians join him in celebrating what he called “a seminal event in the making of our great Country.” But recent calls to commemorate the historic relationship between Indigenous people and the Crown — by recognizing the Royal Proclamation in Canada’s anniversary celebrations or renaming Victoria Day “Victoria and First Peoples Day” —have so far fallen on deaf ears.

This, again, is unfortunate. Canadian institu-tional life owes as much to the past as it does to an ongoing Indigenous presence. We recognize this as we honour the anniversaries of these four remark-able events in Indigenous and Euro-Canadian his-tory. ◉

Joshua Gladstone is a Founding Editor of Northern Pub-lic Affairs. He is a PhD Candidate in the School of Public Policy and Administration at Carleton University.

Idle No More demonstration, Victoria, British Columbia, December 2012.

To the Editors of Nothern Public Affairs,

In her article “Realizing the North’s economic potential,” (North-ern Public Affairs, Fall 2012) the Hon. Leona Aglukkaq, Minister of the Arctic Council for Canada, empha-sizes that resource projects and reg-ulatory streamlining are at the centre of Canada’s current Arctic policy. While making important points, her article fails to adequately address three key issues—food security, com-munity health, and youth engage-ment—which are being sidelined by the government’s focus on Arctic re-source development.

Building on our long-standing engagement in community research in the North, we instead suggest the following issues become central to Canada’s Northern strategy:

1. Prioritize the achievement of sustainable food security for Inuit and other Indigenous and non-In-digenous groups in the circumpolar world with increased investment and focus on food acquired through tra-ditional means, such as hunting and fishing, and initiatives to decrease the costs and increase the nutritional content of available market food.

2. Recognize the impact of policy decisions on the health of communities, and consider health as encompassing all aspects of the

physical, mental, social, and spiritual wellbeing of Arctic communities and peoples.

3. Ensure meaningful engage-ment and involvement of youth rep-resentatives who speak for the young-er generation and future generations that will bear the benefits and conse-quences of decisions made today.

The government’s ‘commit-ment’ to the Arctic and Northerners must go beyond an emphasis on the resource sector to encompass mean-ingful policy and spending on pro-grams which prioritize food security, health and youth engagement. We see these factors as being absolutely key to the creation of the “strong, healthy, sustainable and vibrant com-munities” that Ms. Aglukkaq, North-erners, and all Canadians envision.

Ms. Aglukkaq refers to the po-tential for job creation and communi-ty benefits resulting from the expan-sion of various resource extraction projects, implying that the influx of investment dollars will be sufficient to solve the deficiencies of her govern-ment’s programs. Perhaps. But while we understand the need for employ-ment opportunities and increased investment in the North, focusing solely on industrial and extractive de-velopment is likely to be insufficient to deliver on promises of sustainable development, and may create further

challenges for community health and development.

There has been inadequate study of the various community im-pacts stemming from major resource projects. For example, studies com-pleted in the communities of Rankin Inlet, and ongoing work in Arctic Bay, suggest that the economic bene-fits are neither long term nor sustain-able. Ongoing community consulta-tion and sensitivity to the potential impacts of development must come to the forefront of any development strategy in order to ensure that com-munity needs and priorities are met within the framework of economic development in the North.

Climatic and environmental changes are bringing unprecedented changes in the circumpolar regions, opening new possibilities for resource extraction. However, making re-source development a priority ahead of the health and living conditions of Arctic Canadians is not only un-sustainable, it is potentially damag-ing to the health and well-being of Northern residents and consequently to the future of Northern Canada as a whole—topics which we discussed further in an open letter to Minister Aglukkaq in December 2012.

With all best wishes,

LETTERS

Open letter from the Climate Change Adaptation Research Group to the Hon. Leona Aglukkaq

Dr. James Ford Assistant ProfessorDepartment of Geography, McGill UniversityBurnside Hall, 805 Sherbrooke St. W.Montreal, Quebec, H3A 0B9

Dr. George WenzelProfessorDepartment of Geography, McGill UniversityBurnside Hall, 805 Sherbrooke St. W.Montreal, Quebec, H3A 0B9

Climate Change Adaptation Research Group Members:

Dr. Ashlee Cunsolo WilloxJoanna Petrasek MacDonaldKaitlyn FinnerKnut Tjensvoll KitchingMya Sherman

Michelle MailletLesya NakonecznyAnna BunceDiana King

Department of Geography, McGill UniversityBurnside Hall, 805 Sherbrooke St. W.Montreal, Quebec, H3A 0B9 Climate Change Adaptation Research Group Website: www.ccadapt.ca

IGLOOLIK

Municipality of Igloolik, 2013.

Phot

o cr

edit:

Nor

ther

n Pu

blic

Affa

irs

8

March 18, 2013

Right Honourable Stephen HarperPrime Minister of CanadaOffice of the Prime Minister80 Wellington StreetOttawa, Ontario K1A 0A2

Dear Prime Minister Harper:

The Royal Proclamation was signed by King George III on October 7, 1763, at St. James’ Court in Lon-don, England. October of 2013 will mark the 250th anniversary of this foundational event and document for First Nations and Canada. I hope you agree with me that it is entirely fitting for Cana-da and First Nations to cooperate in the commemoration of this special anniversary. First Nation support for the commemoration is authorized by resolutions of the Ontario Chiefs in Assembly and the Assembly of First Nations.

I understand that in late Jan-uary you advised your party cau-cus that the federal government intended to celebrate a number of upcoming anniversaries, in-cluding the centennial of the First World War and the 200th anniversary of the birth of Sir

John A. Macdonald. These im-portant dates come in the wake of the continuing commemoration of the 200th anniversary of the War of 1812. There is a general intention on the part of the feder-al government to build up to the celebration of the 150th anniver-sary of Canadian Confederation in 2017. I agree that all of these milestones are very important for Canadians and First Nations citi-zens alike, albeit in different ways. Adding the 250th anniversary of the Royal Proclamation this year will complete the circle of national commemoration.

The seminal importance of the Royal Proclamation of 1763 was recognized in volume I of the Re-port of the Royal Commission on Ab-original Peoples. First Nation rights and freedoms recognized by the Proclamation are enshrined in ar-ticle 25(a) of the Canadian Charter of Rights and Freedoms (1982) and article 35 of the Canadian Con-stitution Act, 1982. The historical and legal significance of the dec-laration has been recognized in several leading court decisions. In R. v. Secretary of State (1981), Lord Denning described the declara-tion as being of “… high consti-

tutional importance … ranked by the Indian peoples as their Bill of Rights, equivalent to our own Bill of Rights in England 80 years before.” In Calder v. BC (1973), Mr. Justice Hall of the Supreme Court of Canada held that the Proclamation “must be regarded as a fundamental document upon which any just determination of original rights rests.” To similar effect, the Proclamation has some-times been described as the Magna Carta of First Nations in Canada.

The Royal Proclamation was meant to implement some of the elements of the Treaty of Paris (1763), following the Seven Years War (sometimes referred to as the French Indian War). The issuance of the Proclamation was hastened by collective First Nation victories in Pontiac’s War, starting in 1763. The solemn Treaty making proto-cl established by the Proclamation led directly to the Treaty of Fort Ni-agara in 1764, creating a new Cov-enant Chain between the British Crown and several First Nations in the Great Lakes area of present day Canada. Many of these First Nations honored the Proclamation and the Covenant Chain by sup-porting the British cause in 1812.

LETTERS

Letter from the Cheifs of Ontario to Prime Minister Stephen Harper


9

The First Nation military alliance was crucial to the survival of Brit-ish North America.

The words of the Royal Proc-lamation of 1763 ring strong and true to this day. The Proclamation recog-nized the “Tribes of Indians” as self-gov-erning “Nations.” The “Interest, and the Security” of the British North Ameri-can colonies depend-ed on good relations with First Nations. The Proclama-tion guaranteed that First Nations “should not be molested or dis-turbed in the Possession” of their ancestral lands and waters. The Declaration described the solemn Treaty making process required for the sharing of any First Na-tion traditional territory, which is still the law of the land today. On a whole other level, the declara-tion’s absolute protection of First Nation territory from the “Frauds and Abuses” of colonial settlers was one of the early causes of the American Revolution.

It is clear that the declaration is fundamental to the fabric of not only Canada, but North America as a whole. Canada would not be Canada without the Royal Procla-mation of 1763.

The road has been long and difficult since 1763. Tragedies too numerous and painful to cata-logue here could have been avoid-ed if the international respect and royal “Protection” of the Procla-mation had been honored by the successor Canadian state. Many of these tragedies remain unre-solved. However, in this 250th an-niversary year of the Proclamation, it is appropriate for Canada and First Nations to come together and celebrate their overlapping heritage as Nations. I know that your government places a high value on the historical and cul-

tural connection between parts of Canada and the British Royal family. Based in large part on the Proclamation, First Nations also en-joy a special and permanent con-

nection to the Crown in right of Great Britain. This is a connec-tion that we can both celebrate in this very special year.

Celebration of the 250th an-niversary of the Royal Declaration is also fitting based on the terms of the United Nations Declaration on the Rights of Indigenous Peoples (2007), which the Canadian state recently endorsed. Article 5 of the UN Dec-laration provides that Indigenous Peoples have the right to maintain their own legal, political, and other in-stitutions, while retaining the right to participate fully in the political and cultural life of the Canadian state. Article 11 of the UN Dec-laration provides that Indigenous Peoples have the right to main-tain, protect and develop the past, present and future manifestations of their cultures. Most important-ly, Article 27 of the UN Declaration provides that Indigenous Peoples have the right to the recognition and enforcement of Treaties and other agreements concluded with states or their successors, such as Canada. In summary, there is an epic opportunity this year to cele-brate both the Royal Proclamation of 1763 and the 2007 UN Declaration on the Rights of Indigenous Peoples.

Relations between First Na-tions and Canada have been es-pecially difficult over the last year, as witnessed by the grass roots Idle No More movement and

the brave hunger strike of Chief Theresa Spence of the Attawa-piskat First Nation. The underly-ing issues of Treaty implementa-tion have hardly been addressed,

let alone resolved. Nevertheless, in the spirit of the Wampum of 1764, I believe we can set aside some of our differences for now, and cooperatively celebrate the enduring legacy of the Royal Proc-lamation of 1763. Perhaps I am be-ing overly optimistic, but it is even possible that a joining of hands on this commemoration may lead to an opening of hearts on some of the daunting challenges in our nation-to-nation relationship.

Time is of the essence. The 250th anniversary is less than sev-en months away. My suggestion is that we should establish a joint steering or organizing commit-tee as soon as practicable. I have copied various federal ministries which might be of assistance in this important national project. Sanctioned activities and proj-ects that stretch into 2014 should be considered, in order to make planning and implementation more manageable. We should also consider participation by the provinces, Great Britain, and the United States. I look forward to your response.

Sincerely,

CHIEFS OF ONTARIO

Stan Beardy,Regional Chief.


Perhaps I am being overly optimistic, but it is even possible that a joining of hands on this commemoration may lead to an

opening of hearts on some of the daunting challenges in our nation-to-nation relationship.

On March 13, 2013 Mr. Bob Bromley (Wele-deh) shared one woman’s experience with income support.

’d like to turn to the main focus of my comments today, and I’d like to begin by acknowledging

again Ms. Miranda Currie, who’s in the gallery to-day. Thanks for coming out, Miranda. I’d like to read a poem that Ms. Currie has written to describe her experiences in seeking disability income support, and it’s obviously germane because of the Auditor General’s focus, and I know the Minister is focus-ing on this situation right now as well. Once again, thanks to Miranda for graciously sharing her per-sonal story through the art of this poetry.

But first, a little bit of background. Ms. Currie suffered a very serious head injury in an accident in November 2011. She later suffered multiple injuries again, head injuries, as a result of the ill effects of her original injury. To this day she is continuing to strive to regain her health. She’s a very spunky per-son and I know she will achieve that. However, she

has been unable to carry on her daily life in a nor-mal way. She has been in and out of hospitals and has received extensive neurological treatment since then, and she does suffer impairment of her speech and many motor skills. Miranda was self-employed before the accident, and she must now rely on public income support to meet her basic subsistence needs. She lives very modestly. Her ordeal with income se-curity has hardly been a positive contribution in her effort to regain her health, and that’s the topic today.

Just a few of the difficulties that she has experi-enced in trying to access income assistance include:

• A case worker refusal to provide accommodation assistance based on the subjective judgment that she lives in substandard housing.• Receipts to document her rental, electrical and fuel costs were obtained with great physical difficulties and expense and visiting offices to obtain stamped and certified copies.• Income assistance staff say they have lost the re-ceipts she has supplied to their offices. This has hap-pened four times. Imagine if you were saddled with this situation.• Despite severe mobility problems and risk of re- injury, she has repeatedly been told she must come to the income assistance office for interviews, which could easily be conducted over the phone.• She has been refused reimbursement of costs for loans received from friends in the interim to pay her fuel, power and living costs, and given the explana-tion that those are considered gifts. Nice of them to

OVERHEARD

Statement by MLA Bob Bromley

Northwest Territories Legislative Assembly, Yellowknife, Northwest Territories, October 2012.

I

Photo credit: Northern Public Affairs

11

make that decision on behalf of her friends.• Treatment that lacks compassion and sensitivity to the realities of her situation, again, not a single in-stance, such as a caseworker hanging up on her after saying I’ll see you tomorrow when Ms. Currie has said she is physically unable to attend appointments due to the effects of her injuries. • And, finally, a late payment of support have [sic] at times left her huddled in her bed to stay warm, unable to pay oil bills and living in a home well below zero. We know what this winter has been like.

That’s enough background. Her words really do speak for themselves, and once again I want to express my appreciation to Miranda Currie for her willingness to share this very personal story. The date on it is the 20th of February 2013. The poem is entitled:

Income Outcome

January 2012 I came to the office to apply for Income. Support. I tried to make sense of the 22 pages of forms. Name, date, age? Fill it out, next page Bank accounts, investments, medical assessments. I wondered how I could be in this situation, and tried to be thankful? Embarrassed, I brought my papers to the “help” desk. I felt like I was handing in a poorly written test. You spoke to me through a hole in the plexi-glass, a pane that assumed you needed protection from citizens of a lower class.

I felt like an animal, wounded, and asking for help, “I used to be so independent, when I had my health.” Please hear my wavering voice, it is so hard for me to ask for help to accomplish even the simplest task.

I just need a little more patience, because everything moves just a little more slow And sometimes I’d like to tell you how you could help, but I don’t even know.

I am trying my best really I am vulnerable and you have the power to help me.

March 2012 Still no supportive income, and I wonder why I am sitting at your desk, with a tear in my eye You look up from that folder of papers, you notice and say, “Don’t you start to cry. Crying won’t get you anywhere with me.”

This voice reminds me of Grade 3 and scratchy chalkboards and teachers angry with me But I am 32, probably about the same age as you, give or take a year or a few

I am overwhelmed by the situation,I am tearing up in utter frustration I came asking you to help with this crappy hand I’ve been dealt And you berate me

And I say I I I’m sorry. The way I have been taught to do when speaking with someone in authority Because if they say it, it must be valid right?NO NOT VALID! NOT RIGHT!

I don’t deserve to be treated like this, but this doesn’t occur to me until two o’clock that night because I am so angry I can’t sleep!

You had the power to help me.

October 2012I get a phone call. A case worker says, “You are missing paperwork.You didn’t submit it all.”This blows my mind, because this is the FOURTH time,that my monthly paperwork has been “lost”

In that time, I have learned, to photocopy everything.

Bank statements, power and fuel bills, receipts for rent, I’ve kept track of every dollar I’ve spent.

So I go to my folder, and take the September pages out, I pay for a taxi, so I can get this sorted out I don’t want the payment to arrive in my bank account late

They make it seem like my fault, that’s the part I really hate. “Hi, is ----- available?” I calmly say “No, sorry she is not available today.” “Well... I am feeling a little frustrated that my paperwork has been lost,my social worker and I brought it in last week.”


“Oh yes, I remember stamping it, and putting it in her box.”

From the office space behind, … Walks inThrough that plexi-glass hole I say,“I am sorry we have to meet this way,I’m feeling really frustrated at having to resubmit my papers for this month and was hoping to speak to you about heating fuel for my house.”

She looks at me, like she couldn’t give a and says, “I don’t have time for you, you’ll need to book an appointment later this week.” She turns around, walks away, I have been dismissed.

I am overwhelmed by the situation,I am tearing up in utter frustration I came asking you to help with this crappy hand I’ve been dealt.And you dismiss me

The receptionist looks down, and I look around, in disbelief. Did that seriously just happen? “I am doing my part,” I cry. Then I slam my hand on the “help” desk and yell, “There is NO DIGNITY IN THIS!”

Barely able to open the door, I amble out of there with my cane beside me with the words failure, failure, failure, echoing inside me.

I am exercising my personal responsibility. I’m trying my best reallyBut I am vulnerable and you have the power to help me.

February 2013I am lying in my bed, migraine in my head, under the weight of multiple blankets trying to stay warm. It is minus 17 degrees Celsius in the house. It has been 16 days since I first called income support to remind them I need fuel. It has been 15 days since I used my rent money to pay for fuel. It has been 3 days since that fuel run out. It has been 2 days of sub-zero temperatures in the house.

No heat, no fuel, no rent, it’s cruel.

I have left numerous messages explaining the situation, My social worker has experienced the same frustrations No one answers or returns my calls It is like I don’t exist at all.

My eyes are tear-frosted I am totally exhausted From fighting for basic needs.You have the power to help me.

But maybe you are tired too,exhausted from dealing with people who never say thank you who shove their entitlement under that glass when you really want to tell them to shove it... Maybe you are tired of people who take too much, and give too little even though you entered this profession to help people.

I know it must be difficult not to get jaded, your passion, dimmed by the system, and faded But YOU CAN effect the change that the world needs to see YOU DO have the power to be the one person who treats a vulnerable person kindly.

I am vulnerable and you have the power to help me.

◉◉◉

Thank you very much, Miranda, again, for sharing this.

—Applause

Mr. Speaker, I’m going to leave it at that, but I don’t want to say any more because I think that the power of Ms. Currie’s words clearly resonate with a lot of us. I know the Minister is going to get to work and straighten this situation out with our support. Mahsi.

MR. SPEAKER: Thank you, Mr. Bromley. ◉

12 Northern Public Affairs, Spring 2013

YELLOWKNIFE

Swap Shop, Yellowknife, Northwest Territories, 2012.

Phot

o cr

edit:

Nor

ther

n Pu

blic

Affa

irs

14

Joshua Gladstone (JG): You spend considerable time and energy writing and speaking about Indig-enous-settler relations in Canada. Where does your interest come from?

Chris Alcantara (CA): During my undergraduate studies at McMaster University, my roommate, Ty Hamilton, was completing a minor in Indigenous studies and he would constantly talk about the com-plex relationship between Indigenous and settler peoples in Canada. It was a topic that I had really no knowledge of despite doing a double major in political science and history. But his insights really got me interested in learning more about this topic. When I got to Calgary to do my Master’s degree, I took a course on comparative Indigenous politics with David E. Wilkins, who was at the University as a visiting Fulbright scholar. That course, plus writ-ing an M.A. thesis on property rights, Indigenous poverty, and the Indian Act under the supervision of Tom Flanagan, really got me interested in learn-ing more about the Indigenous-settler relationship in Canada.

JG: What motivated you to write a book specifically about comprehensive land claims agreements?

CA: As I learned more about the Indigenous-settler relationship in Canada, I stumbled upon this grow-ing literature on modern treaties and was fascinated by the debate on whether modern treaties could be used to effectively address the wretched conditions found on some Indigenous communities. Some commentators believed that modern treaties could be used to achieve meaningful Aboriginal self-de-termination and prosperity. Others thought that modern treaties were simply another tool that the Canadian state was using to co-opt Indigenous peo-ples, lands, and priorities. I knew that I wanted to contribute to this debate but I also knew I wasn’t a political theorist! So I thought my initial contribu-

tion to this debate could be to tackle the question of why some Aboriginal groups were able to complete modern treaties and why some have not. Lots of people had ideas about the factors that generated successful and unsuccessful negotiations, but none had addressed this question systematically or com-paratively.

JG: What problems are comprehensive land claims agreements meant to solve for Indigenous groups? Government?

CA: Originally, comprehensive land claims agree-ments emerged in the early 1970s in response to growing concerns about Indigenous mobilization and some litigation that had established the legal existence of Aboriginal title. In essence, the govern-ment of Canada became concerned that Indigenous peoples had legitimate ownership claims over cer-tain Crown lands that had never been subject to his-torical treaties with Indigenous peoples. To alleviate this uncertainty, the federal government initiated what it called comprehensive land claims negotia-tions with those groups that had never signed treaties with the Crown. So the original impetus for modern treaties was the Crown’s concerns about Indigenous political mobilization and the lack of certainty and finality regarding the ownership of Canada’s lands.

Over time, the negotiation process and the agree-ments themselves have evolved to reflect a growing desire to help Indigenous peoples achieve meaning-ful political and economic self-determination and prosperity. Defenders of modern treaties argue that they provide Indigenous groups with a wide variety of powers and jurisdiction over a range of lands. Some also contain self-government provisions, em-powering Indigenous groups to establish their own self-governing regimes. Critics, on the other hand, suggest that these supposed benefits are far too limit-ed in scope and that the costs of achieving them are far too high for the Indigenous signatories.

IN CONVERSATION

Professor Chris Alcantara


Professor Chris Alcantara spoke with our editor, Joshua Gladstone, in March about his new book Negotiating the Deal: Comprehensive Land Claims

Agreements in Canada, published by University of Toronto Press.

Alcantara’s book was published in March 2013 by University of Toronto Press.

JG: How effective do you think CLCs are in solving these problems?

CA: Quite frankly, I don’t know. The existing lit-erature is divided on the utility of modern treaties and so there’s a real need for someone to do a seri-ous, comparative and systematic study of modern treaty implementation from a social science, Indig-enous-centred, or hybrid perspective. As far as I can tell, no one had yet to produce such a study but hopefully someone will.

JG: In your forthcoming book, you ask why some Indigenous groups have been able to complete com-prehensive land claims agreements while others have not. What have you found?

CA: The existing literature tends to argue that mod-ern treaty negotiations are extremely slow because the federal, provincial, and territorial governments are too inflexible and dominating during negotia-tions. Yet this explanation doesn’t take into account the fact that over 20 groups have completed modern treaties. My book argues that the key to successful and unsuccessful treaty negotiations lies with the Aboriginal groups. It is true that the Crown is high-ly inflexible and dominating and that it holds much of the power in the negotiation process. Indeed, the federal, provincial, and territorial governments also have considerable ownership rights and resources at their disposal. But some Aboriginal groups have completed modern treaties despite these facts and so any explanation of treaty negotiations must take into account the role of Aboriginal groups in the process.

So what does this mean in practice? Given that the Crown dominates the treaty negotiation process, Aboriginal groups that want to complete a compre-hensive land claims agreements must convince the Crown to do so. Specifically, this means that Aborig-inal groups must adopt negotiation goals that are compatible with the goals of the federal, provincial, and territorial governments. They must minimize the use of confrontational tactics, which can be seen as embarrassing for government officials. They must forge internal cohesion as it relates to completing a treaty and they must foster positive perceptions of themselves among government officials. Govern-ments want to sign treaties with those groups that they think are likely to be successful at treaty imple-mentation because they do not want to deal with the embarrassment of Aboriginal financial mismanage-ment or political corruption/in-fighting, post-treaty.

This explanation challenges much of the con-ventional wisdom on treaty negotiations, which

tends to focus on the role of the Canadian govern-ments and the need for a major economic develop-ment opportunity to exist on Indigenous lands. My research findings suggest these are important fac-tors, but that you can’t fully explain successful and unsuccessful treaty negotiations without taking into account the active role that Indigenous groups play in the process. Of course, this active role is highly constrained by a number of other factors, including the actual negotiation environment, which was cre-ated and is controlled by the Crown itself ! Another potentially constraining factor is the specific histo-ry of government interference in each Indigenous community. Some groups, for instance, have strug-gled to forge internal cohesion because the federal or provincial governments imposed membership rules on the community, or moved the community from place to place without their consent, or under-funded the community, among other things. And so some groups have found it difficult to achieve the necessary factors for treaty completion. But treaty completion is not impossible. My research shows that Indigenous groups can overcome these barriers through the actions of their political leaders.

JG: This past September, the Government of Can-ada announced a “new approach” to treaty nego-tiations involving results-based negotiations and the promotion of other tools to address Aboriginal rights and promote economic development and self-sufficiency. Given the role you ascribe to Indig-enous groups in the treaty-making process, what do you think the effect of this “new approach” might be?’

CA: When I saw the announcement in Fall 2012, I was stunned! In my book, I don’t make any policy suggestions for reforming the negotiation process. My primary goal was social scientific in nature: to simply identify the factors that led to completed and incomplete treaty negotiations. Although the book doesn’t offer any suggestions for policy reform, it does outline and analyze the various choices that Indigenous groups face, given my findings and the fact that significant policy reform is unlikely to oc-cur anytime soon. These choices include: find a way to achieve the necessary strategies to complete a modern treaty; choose one of several existing policy alternatives to modern treaties (e.g. bilateral agree-ments, incremental treaty agreements, self-govern-ment, or legislative alternatives like the First Nations Land Management Act); or stick with the status quo (e.g. no treaty). The government of Canada’s new ap-proach seems to reflect some of the analysis in my


17

book. As far as I can tell, the government of Can-ada plans to focus its efforts on those groups that it thinks can successfully complete negotiations while encouraging other groups to pursue alternatives to the treaty process, either as an end in of itself, or as a means of building capacity towards eventual treaty completion.

So what will happen as a result of these new government reforms? I think negotiations will accel-erate significantly with those groups that are already capable of completing negotiations (e.g. are close to achieving the four necessary strategies). Other groups will be encouraged to choose the status quo (no treaty) or one of the alternative policy options currently available. These alternatives will provide opportunities for capacity building and for improv-ing standards of living in Indigenous communities, which in turn may help some groups convince the government to complete treaty negotiations. But for the majority of groups that are struggling to com-plete negotiations, the reforms will probably not help them complete modern treaties.

I remember several years ago sharing some of my initial findings with several senior government officials. One of them remarked that he thought the findings would be useful for reforming the treaty process. I never thought anything would come of it but the announcement in the fall reminded me how our research can sometimes have a significant effect on public policy (assuming my work actually did have any influence!).

JG: When the Idle No More movement sprang up across the country — including in areas covered by modern treaties — it called attention to the deplor-able conditions in many Indigenous communities and the acerbic nature of Indigenous-settler conflict. Are modern treaties part of the solution to these is-sues, or part of the problem?

CA: I think modern treaties can be both. On the one hand, modern treaties have the potential to provide Indigenous communities with significant resources and jurisdictions to exercise meaningful self-determination and economic prosperity. On the other hand, even the best treaties can generate negative outcomes! Much depends on whether the government of Canada is willing to uphold its treaty implementation obligations and whether Indigenous leaders can connect and engage meaningfully with their community members.

JG: Earlier on, you mention your relationship with Tom Flanagan as your thesis supervisor. Profesor

Flanagan is a controversial figure, including for his writing on Indigenous-settler relations. How has Professor Flanagan shaped your thinking on Indige-nous-settler relations, and what do you think his leg-acy will be in the field?

CA: When I arrived at the University of Calgary in 2001 to do my Masters degree in political science, I vowed not to work with Dr. Flanagan. I had read the first chapter in First Nations? Second Thoughts during the last year of my undergraduate degree and was appalled! However, Rainer Knopff convinced me to at least meet with Dr. Flanagan to discuss the possibility of him supervising my M.A. thesis and so I did. After presenting him with my ideas, all of which were extremely broad and impossible to do, he suggested three very doable projects and I chose the one on Certificates of Possession. It turned out to be an excellent decision!

Tom has taught me several important things over the years, all of which I learned indirectly from interacting with him as a graduate student and lat-er as a co-author. First, ask and investigate research questions that are relevant to real-world problems and issues. My first real research project was on the positive and negative effects of the various proper-ty rights imposed on Indian reserves by the Indian Act. That research has helped the government of Canada and some Indigenous communities across the country to engage in property rights reform and improve housing and economic development condi-tions on their lands.

Second, don’t be afraid to defend unpopular or controversial arguments in your research. First Na-tions? Second Thoughts was controversial for a number of reasons, mainly because it took a particular stand that was critical of the dominant view about Indige-nous-settler relations. As a result, many scholars and commentators heavily criticized and dismissed his work. Yet the book was important because it chal-lenged these scholars and commentators to directly address the types of concerns raised by Flanagan and to think more carefully about the robustness of their arguments. Indeed, it’s only through debate and discussion can we properly sharpen our argu-ments and determine whether they are in fact right!

Third, be willing to change your mind. People paint Tom as a right wing or libertarian ideologue who is incapable of changing his mind. Yet Tom has always taught me, again indirectly, that being a scholar means being willing to listen to rational and reasonable arguments. Ultimately, we need to be prepared to change our minds and to realize that our arguments and research might be wrong! In


First Nations? Second Thoughts, Flanagan states that he doesn’t believe in Aboriginal self-government. Ten years later, in Beyond the Indian Act, he argues that Ab-original self-government is necessary for improving living conditions on Canadian Indian reserves. To me, that’s remarkable and admirable and as a result, I’ve always tried to be open to the possibility that my research and views are wrong.

I hope his legacy will be to remind us all to be open to discourse and dialogue, no matter how un-popular it may be. Only through debate and discus-

sion can we discover how robust and true our ideas and arguments really are. ◉

Christopher Alcantara is the author of Negotiating the Deal: Comprehensive Land Claims Agreements in Canada, published by the University of Toronto Press. He is Assistant Professor in the Department of Political Science at Wilfrid Laurier University.

SUBSCRIBE TODAY! Three issues for $28(plus GST/HST where applicable)

First issue mails Summer 2013. Subscribe online at www.northernpublicaffairs.ca.Mail to: Northern Public Affairs P.O. Box 517, Stn. B, Ottawa, ON CANADA K1P 5P6

◎ Individual (Canada): $28.00◎ Individual (United States): $49.00◎ Individual (International): $58.00

◎ Institutional (Canada): $150.00◎ Institutional (United States): $175.00◎ Institutional (International): $200.00

(check one)

___________________________________________Name (please print)

___________________________________________Address

___________________________________________Community Territory/Province

___________________________________________Country Postal Code

___________________________________________Email address(please include payment)

ach year, students attending the Nunavut Sivunik-savut (NS) college program in Ottawa spend eight

months studying the Nunavut Land Claims Agreement (NLCA), contemporary issues, Inuit-government relations, Inuit history, Inuktitut and English. As the year progresses the story of Nunavut begins to come together in their minds. The first year students were asked to write about what the NLCA means to them. A selection of these contributions is shared with you here.

In my mind, the Nunavut Land Claims Agreement means a lot to me. Our ancestors lived off the land in their traditional way of life, without the use of industrial tools or technologies. In the past Inuit helped each other by fighting for what they want to see in the fu-ture. It is a big thing that the Inuit signed the NLCA and now have their own rights and that we will not forget our culture and our language.

In my heart, it still means a lot for me not to forget the Inuit that signed the NLCA. Our ances-tors fought to get their own land, to keep their cul-ture alive and strong. We do not want to forget those leaders that fought for us. The NLCA holds an im-portant place in my mind and heart as it represents the fact that we have a free country and should enjoy the same freedoms as our ancestors.

— Linda Airut, Igloolik

◉◉◉

Before the NLCA, I can only imagine how Inuit lived. The Inuit lived a peaceful life before the whalers, traders and missionaries came, and they were able to live freely. Shortly after the Europeans came, Inuit were treated as if they were not human beings. They lost their language and culture. Inuit were forced to give up almost everything because non-Inuit said their culture was useless and that it would never be recognized.

With everything Inuit have been through in their history I think the NLCA is the heart of a work-ing body. Without it, Inuit would not be here right now. We now have rights that are protected by law. Even if we do not fully speak our language or live the way that we used to, we now have rights that we should be very proud of. We can now proudly speak our language and have our culture recognized. We

can hunt with pride and show the world we do exist with our unique culture and traditional ways of sur-viving in the Arctic. The NLCA, to Inuit, is the out-come of their hard work. It is, in a way, an apology for how we were treated in the past. This gift from our leaders should be, and is, very important to Inuit in Nunavut.

— Crystal Tatty, Rankin Inlet

◉◉◉

The NLCA is important to me for so many reasons. Through contact with Qallunaat we lost our cul-ture, language and beliefs. Inuit finally stood up and fought for our rights. Without the NLCA our lives would be very different. The NLCA allows me to continue learning about my culture and traditions.

The NLCA means that we have a relationship with the Canadian government. It is like a contract that should not change as Inuit spent several years building the agreement to benefit Inuit and preserve our language and rights. The Qallunaat took over our land and treated it as if we were not even there. Through the hard work of our strong leaders we are now no longer being ignored. They fought for this agreement so now our voices can be heard and we can live with freedom.

— Irma Joy Voisey, Whale Cove

◉◉◉

The NLCA is a part of history that we have to remember. Inuit got together from all over Canada to listen, discuss, and make decisions on what was going on in relation to their rights. Inuit today would not have the freedom if it were not for those brave Inuit standing up together against the government of Canada. The NLCA is important to me because it is the reason we can still harvest, speak our language, learn our culture, and pass all this on from genera-tion to generation.

There have been many negotiations between the government and Aboriginal peoples. But the NLCA is the biggest agreement ever to be signed by any government about Aboriginal rights. Inuit fought long and tough throughout the negotiations. For that I am very thankful, proud, happy and a bit

19

NUNAVUT SIVUNIKSAVUT

What the Nunavut Land Claims Agreement means to me...

E


sad as some peoples lives were greatly affected by the agreement. They made it happen so that present and future Nunavut Inuit can have equal rights to the land we lived on for thousands of years.

— Jennifer Ullulaq, Gjoa Haven

◉◉◉

I am unique. I am a mixture of Inuit and Chipewy-an. I have the traditions and culture of two peoples. I am tied to the NLCA by my father’s ancestry, al-though my mother as a Chipewyan has similar values. Both cultures are completely different. For First Nations people, long hair is a representation of strength, pride, beauty, and identity. Within the braid, it ties together three main things: identity, sense of wellbeing, and integrity. It is the breaking point of the connection to the culture and traditions.

For me, The NLCA is a symbol in the same way that long hair has an importance amongst the First Nations. The NLCA braids together the strength, pride, and beauty of protected lands, water, and wildlife. The NLCA ensures the culture and traditions are preserved and carried out in future generations. It keeps the integrity of the people and our right to the land existing. Without the NLCA it would have been the same affect as cutting off the braid of a First Nations man or woman. It would be like strip-ping the identity of Inuit, and their sense of protec-tion to the land, water, and wildlife. It could mean that the preservation of the culture and traditions would be lost. I have two traditions and cultures. I have two braids, two to protect, and two to represent with pride and beauty.

— Savannah Angnaluak, Kugluktuk

◉◉◉

The NLCA is important to me for a number of rea-sons. One of the main reasons is that you see other ethnic groups fighting and struggling to keep what they want protected. They do not have the freedom to do what they want on what is rightfully theirs. I have no idea how our Inuit elders had the patience

to wait, get an education, and fight for twenty years without changing their grounds. The NLCA gives me the security of knowing that my children and I are part of something.

The NLCA was, and is, one of the biggest trea-ties ever signed and is the biggest territory to be di-vided without violence. Because of the NLCA I, and all Inuit, have the right to say what goes on on our land. We have a say in what happens to our wildlife that many Inuit depend on. I am thankful as an Inuk because if anything happens to the place that I call home, I have the right to get compensation because of the NLCA. However, I would never take the com-pensation over my home.

— Neoma Kipomee-Cox, Iqaluit

◉◉◉

The Nunavut Land Claims Agreement is important for all Inuit in Nunavut. The NLCA is an agreement between the Inuit and the Canadian government, which allows Inuit hunting rights, the right to manage wildlife, access to benefits, and land rights. It helps to keep our culture and language strong by protecting our Inuit rights. I find this important for my family and myself as an Inuk. Our people fought hard for our rights and had to learn very quickly about the government laws and how the system works. I am forever grateful for the amazing and strong leaders who fought for our rights. It is very inspirational to learn how much a person can do for themselves, their people, and their territory. I am glad to be at a school that is teaching me about the history of how Nunavut was created. It has helped me understand the NLCA in greater depth and how it affects me as an Inuk. Before Nunavut Sivuniksavut I did not real-ize how important the land claim was and I am now much more passionate about our history and future. So, to me, the NLCA is a big part of who we are as Inuit. I feel very lucky to be a Nunavummiuk as we get to keep our beautiful culture and have benefits of being Inuk.

— Kaneena Kusugak, Rankin Inlet ◉

View of Hudson Bay, Rankin Inlet, Nunavut, June 2011.


ARTICLES

WHITEHORSE

Yukon Theatre, Whitehorse, Yukon, July 2012.


ince 1975, 24 modern treaties have been ne-gotiated and signed in Canada. These modern

treaties (also known as comprehensive land claims agreements) apply to Aboriginal traditional territo-ries encompassing more than half of the lands and waters of Canada, as well as the vast resources they contain. Modern treaty negotiations are also on-go-ing at more than 60 tables, and many more Aborig-inal peoples hope to conclude treaties over the next few decades.

The signing of a modern treaty represents the culmination of years, if not decades, of hard negoti-ations and compromise. But the signing ceremony is just the beginning. Modern treaties are intended to be “living” documents, an enduring means to secure justice for Aboriginal nations and a reconciliation of their rights with the rights of all Canadians. If they are to achieve their potential, modern treaties must be implemented.

In 2003, the Aboriginal signatories to modern treaties formed the Land Claims Agreements Coali-tion, to work together to ensure that comprehensive land claims and associated self-government agree-ments are respected, honoured and fully implement-ed in order to meet their commitments and achieve their objectives. The Coalition’s membership, which now numbers 27, includes all Aboriginal signatories to modern treaties in Canada.

◉◉◉

The grand promise of modern treaties

Treaty relationships form the constitutional foundation for Canadian Confederation, and mod-ern treaties represent an essential continuation of this venerable tradition. The Supreme Court of Canada has recently confirmed that “[t]he reconcil-iation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982.” Modern treaties offer “the legal basis to foster a pos-itive long-term relationship between Aboriginal and non-Aboriginal communities.”

The pressing need for substantial changes to this relationship bears repeating. The United Nations

Committee on the Elimination of Racial Discrimi-nation recently noted “the persistent levels of poverty among Aboriginal peoples, and the persistent mar-ginalization and difficulties faced by them in respect of employment, housing, drinking water, health and education, as a result of structural discrimination whose consequences are still present.” There has been little or no improvement in the well-being of Aboriginal communities in recent years, and the av-erage well-being of these communities continues to rank significantly below that of other communities in Canada.

Aboriginal peoples enter into modern treaties with the Government of Canada in the hope — indeed upon the rightful expectation and promise — that such long-overdue treaty arrangements will result in improvements in the social and economic conditions of their communities and people. Mod-ern treaties represent nation-to-nation and govern-ment-to-government relationships, and express the mutual desire of the Crown and Aboriginal peoples to reconcile through sharing the lands, resources and natural wealth of this subcontinent in a manner that is equitable and just, in contrast to the discriminato-ry and assimilationist approaches that have charac-terized historical relations.

For Aboriginal signatories, modern treaties are not simply cash-for-land transactions. The federal government obtains the so-called “certainty” that it demands in respect of lands and resources by prom-ising that social, economic, environmental, develop-mental and other objectives set out in the treaties will be attended to and realized. These agreements are intended to provide all signatories with a mutual foundation for the beneficial and sustainable devel-opment and use of Aboriginal peoples’ traditional lands and resources.

◉◉◉

Canada’s failing modern treaty implemen-tation policy and practice

In December 2006, leaders and representatives of the Land Claims Agreements Coalition assem-bled in Ottawa to discuss how Canada was doing in

23

MODERN TREATIES

Keeping the promise: The implementation of modern treaties in Canada

Jessica Orkin

S


honouring the modern treaty undertakings it made to Aboriginal peoples over the past thirty years. They declared:

Through these modern treaty agreements, Ottawa made important and solemn treaty promises en-shrined in the constitution in return for reconciling Crown and Aboriginal sovereignties and clearing the way for development in more than half of Can-ada’s land mass and the immense resources it con-tains. More than three years ago, the signatories of all major modern treaties wrote to the Government of Canada. We called for the mutual development of a new federal Policy to fully implement the fun-damental objectives of these important agreements. No meaningful progress has yet been made, and the federal Crown has essentially rebuffed efforts to en-gage constructively. No progress has been made since that time.

The Coalition’s assessment in this regard was echoed by the Standing Senate Committee on Aboriginal Peoples of the Parliament of Canada in its May 2008 report concerning modern treaties. The Sen-ate Committee stated:

The Committee believes that any meaningful ap-proach to treaty implementation cannot be focused solely on fulfilling, narrowly, the legal and technical obligations identified in modern treaties… The gov-ernment’s focus… however, has largely been to dis-charge its obligations in a narrow sense, rather than working to achieve the full breadth of reconciliation promised by treaties… The Committee believes that any promise of reconciliation can only be brought about when implementation is construed broadly and with a view to achieving the objectives set out in modern treaty settlements. We find, however, that government continues to approach these agreements as fundamentally contractual matters, despite the fact that rights flowing

from these agreements are recognized and affirmed in the constitution and form part of the supreme law of the land. The result is that broader considerations of economic and social well-being are set aside [emphasis added]...

[T]here appears to be federal resistance to fund treaties beyond the technical, legal obligations. Such practices minimize the scope and substance of trea-ty rights and may deny Aboriginal signatories the full enjoyment of the rights and benefits promised to them under their Agreements. Having obtained these Agreements, and certainty over the ownership of lands and resources, the benefits to the Crown are immediate and ongoing. Government interest in fully funding and implementing agreements, to their full

potential, may therefore be limited. However, we are of the firm view that such practices undermine the spirit and intent of agreements and bring dishonour to the Crown.

The Senate Committee recommended that the Gov-ernment of Canada, in collaboration with the Coa-lition, take immediate steps to develop a new land claims implementation policy, based on the funda-mental principles laid out by the Coalition.

In response to the recommendations it has re-ceived, and rather than engaging in a responsive policy development process, the Government of Canada has instead focussed its attention upon new administrative approaches and management tools. For example, it released a “Guide for Federal Im-plementers of Comprehensive Land Claims and Self-Government Agreements” in May 2011, in which it painstakingly emphasized the distinction between “obligations” and “objectives”, conveying the government’s view that only the former are the focus of implementation efforts. More recently, the Department of Aboriginal Affairs and Northern De-velopment has devoted significant attention to its fis-cal harmonization initiative. That initiative proposes that Aboriginal signatories to modern treaties will receive funding according to a fixed formula, rath-er than on the basis of negotiated funding arrange-ments based on their specific circumstances and agreements. It seems that the government remains persistently unwilling to address the fundamental policy issues that are at the root of the problem.

Coalition members continue to experience re-sistance (and often outright refusal) on the part of government officials to the adoption of implemen-tation plans and funding arrangements based upon the mutual objectives set out in the treaties and re-flecting the steps actually required to achieve results.

Implementation of modern treaties continues to oc-cur at a glacial pace. Coalition members continue to find that agencies and departments of the Govern-ment of Canada are unaware of treaty obligations that relate to their mandates and programs.

◉◉◉

A way forward

The federal government’s approach to the im-plementation of land claims agreements misses the opportunity that these agreements offer to bring about the inclusion of Aboriginal peoples into the regional, provincial/territorial and national econo-mies of which they and their lands and resources


25

are part, and, over time, to improve the material well-being of Aboriginal peoples while enriching the country as a whole.

The Government of Canada’s approach to im-plementing modern treaties needs to be changed if it is to adhere to the legal, constitutional, and human rights reality and imperatives of these agreements. What is called for is a change in the perspective, and indeed in the very culture, of the Government of Canada in respect of its view of the new rela-tionships set out in land claims and self-government agreements.

The Coalition articulated “Four Points” for a re-newed relationship with the Government of Canada in its “Four-Ten Declaration”, released in 2006:

1. Recognition that the Crown in right of Canada, not the Department of Indian Affairs and Northern Development, is party to our land claims agreements and self-government agreements.2. A federal commitment to achieve the broad ob-jectives of modern treaties, as opposed to mere tech-nical compliance with narrowly defined obligations. This must include, but not be limited to, ensuring adequate funding to achieve these objectives and ob-ligations.3. Implementation must be handled by senior offi-cials representing the entire Canadian government. 4. There must be an independent implementation and review body.

More recently, in March 2009, the Land Claims Agreements Coalition released a model national policy on land claims agreement implementation, Honour, Spirit and Intent: A Model Canadian Policy on the Full Implementation of Modern Treaties Between Aboriginal Peoples and the Crown.

The core commitment of the Model Canadi-an Policy is that the Government of Canada will work with Aboriginal signatories to ensure that each modern treaty is fully implemented consistent with its spirit and intent, the developmental objectives of treaty-making in Canada, and the honour of the Crown.

Under the Model Canadian Policy, the Govern-ment of Canada would commit to key policy direc-tions including to:

a) Focus on achieving measurable results against stat-ed objectives when implementing land claims and self-government agreements; b) Implement dynamic self-government arrange-ments and negotiate stable, predictable and adequate funding arrangements; c) Appoint senior officials to represent the govern-ment on implementation panels and committees; d) Negotiate in good faith with Aboriginal signatories

to conclude multi-year implementation plans and fis-cal agreements and arrangements; e) Provide sufficient and timely funding to fully im-plement the objectives of modern treaties; f) Effectively use dispute resolution mechanisms in agreements to resolve disputes; g) Use the institutions and processes established through modern treaties to achieve other compatible policy objectives in treaty settlement areas; h) Undertake or participate in evaluative processes that generate objective data that reveal whether, how, and how well modern treaties are being implement-ed; and,i) Work with Aboriginal signatories to develop and distribute information to promote greater public and international understanding of the importance of modern treaties and their role in Canada.

Modern treaties are instruments reflecting funda-mental commitment to an enduring relationship. They can and should be regarded as important vehicles for the achievement of public policy goals and human rights obligations, including ensuring the survival, viability and well-being of Aboriginal peoples as distinct collectivities. Regrettably, howev-er, their grand promise will remain elusive so long as the federal government continues to treat these agreements in a narrow, legalistic manner — as con-tracts of divorce, rather than the foundations of a marriage. ◉

Jessica Orkin is a lawyer practising Aboriginal, constitutional and human rights law. Along with Grand Chief Matthew Coon Come, Jessica represents the Grand Council of the Crees (Eeyou Istchee) at the Land Claims Agreements Coalition. This article is based upon the October 2012 submissions of the Coalition to the United Nations Human Rights Council on the occasion of Canada’s Second Universal Period Review.


ll governments, whether federal, provincial, municipal, or Aboriginal, provide services to

citizens. The provision of services — be it infrastruc-ture, social programming, law-making, enforcement, or any of the myriad responsibilities of government — requires a source of funds sufficient to provide that service. A simple model of government financ-ing, therefore, should decree that sources of funds provided to each level of government should be suf-ficient to fund the level of service that government is required to provide.

Unfortunately, the reality of government fi-nancing in Canada is much more complex than the simple model set out above. The Constitution of Canada, in sections 91 and 92, divides jurisdiction between the federal and provincial governments. However, the federal government has the ability to raise more revenue than the provincial govern-ments, while the provincial governments, respon-sible for expensive services such as primary health care and education, cannot raise as much revenue as they require for service provision. This has led to a Canadian government financing picture that is complex and constantly evolving. The federal gov-ernment delegates some taxing power to provinces, and provides additional funding in the form of sub-sidies and equalization payments. The federal gov-ernment also uses its taxing power as incentive for

provincial governments to provide specific types of services. The Canada Health Act is a good example of this tactic; a more recent example is the feder-al-provincial infrastructure stimulus fund.

Similar to the arrangements described above, Aboriginal self-government has revenue require-ments based on the provision of services to citizens. Except in a few cases, the core of modern Aborig-inal self-government jurisdiction is not delegated, but rather is established under section 35 of the Constitution Act (1982) — giving Aboriginal self-gov-ernments powers and responsibilities which cannot be removed unilaterally by a federal or provincial government. These powers and responsibilities carve deeply into the division of powers set out in sections 91 and 92, extracting jurisdiction from the provincial and federal government and assigning it to the Aboriginal government. The most obvi-ous extraction is the removal from federal jurisdic-tion of the section 91(24) power over “Indians, and Lands Reserved for the Indians.” Depending on the agreement, constitutionally protected jurisdiction also usually includes core provincial services such as education, social services, and health care; it almost always includes the full range of municipal responsi-bilities, including utilities, zoning and development, and bylaw enforcement; and it sometimes includes ancillary federal responsibilities, such as administra-

MODERN TREATIES

Sources of funds, sources of frustrationTom McCarthy

A


Photo credit: Diego Torres Silvestre


tion of justice. A problem, however, is that Aboriginal self-gov-

ernment has only been around since 1984 (in a dele-gated form, beginning with the Cree-Naskapi Act of 1984, which implemented provisions of the James Bay and Northern Quebec Agreement (1975) and the Northeastern Quebec Agreement (1978)) and in a full and constitutionally protected sense, since the Nisga’a Treaty of 2000. Aboriginal governments weren’t invited to the meeting in 1867 when the funding-source pie was divided. Therefore, while they assume sovereign responsibility for the provi-sion of programs and services through negotiated agreements and treaties, they have also had to seek sources of funds through those same agreements, to raise revenues sufficient to provide services. In other words, they have had to seek access to pieces of a rev-enue pie that has already been divided up amongst federal and provincial governments. This paper will argue that the failure of federal and provincial gov-ernments to provide Aboriginal governments with an adequate amount of funding, and with complete control over that funding, forces the creation of an on-going dependency relationship with the Crown. This on-going dependency relationship, evidenced by complex and one-sided financing agreements, threatens to derail self-government agreements and erects major barriers in the way of economic devel-opment and self-sufficiency.

◉◉◉

Sources of funds for Aboriginal self-government

Various agreements have attempted to address the problem of the all-divided-up revenue pie. The only manner in which true control over funding could be transferred to a First Nation would be the full transfer of the jurisdiction over that funding source — not in a delegated way, but in a manner so that the Aboriginal government exercises control under its constitutionally protected rights. Gener-ally speaking, the only major source of funds that federal and provincial governments have been prepared to transfer in this manner is the power of direct taxation over citizens of the Aboriginal government itself. This includes the power to tax income, sales, businesses, and property. Any other major funding source has been provided to Aborig-inal governments in a delegated manner, through various side agreements that are not constitutionally protected. This means that the federal or provincial government maintains a degree of control, or can

place parameters around, the revenue-raising power of the Aboriginal government.

One example of this delegated transfer in B.C. is the ability to administer property tax over non-cit-izens living within the taxing jurisdiction of the Ab-original government. B.C. has chosen to transfer this important revenue source through a ‘side agree-ment’, which sets parameters and requirements around funding. That agreement could terminate on non-performance by an Aboriginal government. A second example is income and sales tax powers over non-citizens within Aboriginal government ju-risdiction. In these cases, the federal government will negotiate — again through a separate agree-ment — the transfer of a portion of income and sales tax (which remain administered and collected by the federal government) back to the Aboriginal government.

The problems with this ad-hoc revenue solution can be highlighted by exploring two major sources of funds — taxation and resource revenues.

Tax revenue powers in Aboriginal self-govern-ments are split in two — the power to tax citizens of the Aboriginal community itself, which is a con-stitutionally protected power, and the power to tax non-Aboriginals living within Aboriginal jurisdic-tion — which is not constitutionally protected.

The taxation of Aboriginal citizens is import-ant in principle but hardly worth the effort from a practical perspective. The application of taxes to Aboriginal citizens is highly controversial within communities, as it represents a departure from the section 87 Indian Act tax exemption. The removal of the tax exemption is one of the biggest trade-offs considered by Aboriginal citizens when deciding whether or not to support entering into self-govern-ment. No citizens enjoy being taxed, but tax — i.e. paying a government for services — helps to ensure the accountability of that government to its citizens. While this accountability argument is also valid for Aboriginal citizens and their governments, the ap-plication of tax in the Aboriginal context is much more difficult. Governments are introducing it for the first time, and consequently are reluctant, and have more difficulty and less experience, in doing so. Further, revenues from direct taxation powers over Aboriginal citizens raise (or will raise, when applied) paltry funds. Citizens of Aboriginal governments living within Aboriginal jurisdiction — whether self-government or otherwise — are the poorest and most economically depressed demographic in Can-ada. When an entire population is economically de-pressed, the small amount of taxes that are collected will not have the social benefits they ordinarily carry.

27


The sales tax burden will impose an additional hard-ship on a depressed population, and incomes will be so low on average that income tax collection will be close to zero.

The major source of tax growth in Aborigi-nal jurisdictions, at least in the near term, will be through non-Aboriginal taxpayers. Taxing these individuals remains a delegated authority from the federal or provincial government, allowing the fed-eral or provincial government to apply parameters to Aboriginal taxation. These parameters can be de-structive. For example, the federal government has applied perverse rules to its tax-sharing agreements that provide disincentives to development. Current Department of Finance templates for income and sales tax agreements, such as FNGST (First Nation Goods and Services Tax) agreements, reimburse smaller amounts of tax to the Aboriginal govern-ment as the level of non-Aboriginal investment or consumption increases relative to the Aboriginal citizen population. The taxation structure for Ab-original self-government — certainly with respect to income and sales — does little to encourage real economic development efforts within Aboriginal ju-risdiction. To increase any tax base, a government must attract investment to its jurisdiction; in any oth-er jurisdiction, increased investment is rewarded. In Aboriginal communities, at least in some cases, it is penalized.

Resource revenues could be an important source of funds for Aboriginal self-governments. How-ever, the federal and provincial governments have steadfastly refused to negotiate the constitutionally protected transfer of rights to resource revenues. Federal and provincial governments generally only transfer full ownership of land, including subsurface resources, over smaller areas directly surrounding Aboriginal communities. To date, federal and pro-vincial governments have been reluctant to transfer full subsurface resource control to larger areas of territory, or to areas that contain proven resources. B.C. has recently experimented with resource reve-nue-sharing, but again through agreements that do not have constitutional protection. The result is that Aboriginal governments are deprived of what could be their most critical source of funds, given the re-mote yet resource-rich location of many Aboriginal self-governments.

To put it simply, self-government agreements involve the transfer of constitutionally protected ju-risdiction to provide services. But the fundamental issue is that they do not also transfer the jurisdic-tion to raise the funding to be able to provide those services. Consequently, revenue sources are mostly

delegated, which could result in scenarios where ma-jor revenue sources are removed or cancelled due to breaches of agreements. This is a major and on-go-ing imbalance, where-in the federal and provincial governments retain funding authority over Aborigi-nal self-governments, yet the Aboriginal government becomes charged with a service obligation.

These three issues — the difficulty with Aborigi-nal taxation both of citizens and non-citizens, the re-fusal to provide for resource royalty jurisdiction, and the refusal to include sources of funds under s.35 protection — create major hurdles for an Aborigi-nal government’s ability to match its revenue-raising capability with its expenditure requirements. This reality is at least partially recognized by every level of government involved. To help fill the gap, feder-al, provincial, and Aboriginal governments negoti-ate what is known as a Fiscal Financing Agreement or, depending on the jurisdiction, a Fiscal Transfer Agreement. These negotiated agreements generally have a five-year term, and provide funding for spe-cific services provided by the Aboriginal government in accordance with a general set of principles, in re-turn for the fulfillment of certain reporting require-ments. They also provide a one-time implementa-tion payment, intended to assist a new Aboriginal self-government with the costs of transitioning from the Indian Act and establishing systems under its Final Agreement.

But these agreements are not a solution. On the contrary, they create many more problems that destabilize governance within self-government com-munities and harm the relationship between the fed-eral government and First Nations. The following section explores these issues.

◉◉◉

Fiscal Financing Agreements

Fiscal Financing Agreements (FFAs) are valuable because they provide much-needed funding to allow Aboriginal governments to meet basic needs, such as staffing and service delivery of programs within Aboriginal jurisdiction, including social assistance, preventative health programs, education, and land management. Aboriginal governments must rely on FFAs, which immediately create a control-and-de-pendency relationship — the very relationship all parties proclaim they are seeking to resolve through the settling of self-government agreements. There are three major problems with Fiscal Financing Agreements: insufficiency of funds, own-source rev-enue, and the dependency and accountability struc

Continued on page 30.

28

AANDC: Aboriginal Affairs and Northern Development Canada, formerly INAC (Indian and Northern Affairs Canada) — the federal department charged with responsibility for Aboriginal people.

Fiscal Financing Agreement: These agreements are sometimes called Fiscal Transfer Agreements. They are funding agreements for a fiscal transfer between Canada and the self-governing entity. They are intended to bridge the gap between the signing of a self-gov-ernment agreement and the time when an Aboriginal group is self-sufficient and the FFA is no longer required (at least in theory). To date, FFAs have been permanent fixtures of Ab-original self-government relationships with Canada. FFAs are not included under the ‘consti-tutionally protected’ components of a self-government agreement.

Fiscal Harmonization: A recent proposal by the Government of Canada to reform Fiscal Financing Agreements. This initiative is still in development and has not yet received final approval. The proposal has been rejected by all self-governing Aboriginal groups, and there is significant concern amongst those groups currently negotiating self-government.

Own-Source Revenue Agreement: These agreements accompany Fiscal Financing Agreements. They provide a mechanism to reduce the federal transfer to Aboriginal groups as they develop their own sources of revenue.

Section 35: Section 35, or s.35, is a component of the Constitution Act (1982). Subsection 35(1) states that “the existing Aboriginal and treaty rights of the Aboriginal peoples of Can-ada are hereby recognized and affirmed.” Subsection (3) clarifies the statement by setting out that “For greater certainty, in subsection (1) ‘treaty rights’ includes rights that now exist by way of land claims agreements or may be so acquired.”

Sections 91 and 92: These are the sections of the British North America Act (1867), later re-named the Constitution Act (1867), which set out the core federal and provincial powers. These sections have been subject to much interpretation since Confederation, and the federal and provincial governments overlap in areas such as environmental management, which were not contemplated in these sections.

‘Section 35-Protected’ and ‘Constitutionally Protected’: The reference to ‘protect-ed’ sources of funds is intended to refer to revenue-raising powers that have been included in self-government agreements. If they have been included in the actual agreement itself, they are considered a treaty right (see the definition of section 35, above). That constitutional recognition means that federal or provincial governments cannot unilaterally withdraw the right without breaching the Constitution.

Sources of Funds: The term ‘sources of funds’ refers to a revenue stream. It can include property tax, sales tax, income tax, resource revenues, forestry rents, or any other fee, charge, or royalty collected by any level of government on an on-going basis.

GLOSSARY

Northern Public Affairs, Spring 2013 29


ture they create. Federal funding under Self-Government FFAs is

initially calculated on the basis of the funding pro-vided to Indian Bands still under the Indian Act, along with a minor top-up to reflect self-government re-sponsibilities. Funding provided to non-self-govern-ing First Nations (“Indian Act Bands”) has been widely recognized as insufficient to provide even basic levels of service to Indian Bands. This paucity of funds was a major reason for Chief Teresa Spence’s hun-ger strike. However, Aboriginal self-governments are no longer Indian Bands, which are only responsible for actual program delivery and administration, and for reporting to Aboriginal Affairs and Northern Development Canada (AANDC) and Health Can-ada (which set and evaluate policy and make most major decisions for Indian Band programming). Ab-original self-governments have responsibility for the full range of government functions, beginning with legislative jurisdiction, and continuing on to regu-latory frameworks, policy development and design, decision-making, program delivery, administration, appeals and reviews, and program evaluation. The additional costs of jurisdiction and liability must be recognized in funding, but FFAs do not reflect this reality. Under current FFA regimes, any additional service or any service improvement innovation has to be funded through funds raised by the Aboriginal government itself — the FFA will not help. These funding issues have exposed deep and fundamental disagreements and misunderstandings between the Aboriginal government and the federal government, which has led to chronic delays in the successful re-negotiation of FFAs. In fact, no FFA to date has successfully been renegotiated within the timeframe intended in proposed renegotiation clauses. These disagreements and misunderstandings are related to different interpretations of what was negotiated in the original agreements.

Probably the biggest conceptual disagreement is related to comparability, a principle which is set out in Self-Government Final Agreements and which states, with minor variations in language across agreements, that the Aboriginal government should be provided with resources to enable the govern-ment to provide public services at levels reasonably comparable to those generally prevailing in nearby jurisdictions. Aboriginal governments point to low-er funding levels for Aboriginal self-governments as compared to municipal and provincial services, par-ticularly with respect to education, early childhood education, health care spending, and critical public infrastructure. The Yukon Gross Expenditure Base (Yukon GEB) exercise, concluded in 2008, was a

productive, trilateral, federally commissioned and funded attempt to examine and define comparabil-ity and adequate funding for the purpose of Fiscal Finance Agreements. The federal government did not like the results, apparently, as it never published the report, did not endorse it, and refuses to refer to it in fiscal finance negotiations.

The question of comparability of service pro-vision between Aboriginal and non-Aboriginal governments is also being challenged by Indian Act Bands through the court system.2 Unless court deci-sions place legal pressures on the federal government to comply, the principle of comparability will likely never be honoured. This is in part due to the fed-eral government’s fiscal policies, which have forced AANDC to adopt harsh mandates: federal funding for AANDC’s program spending has been locked at 2 per cent (the rate of inflation, so zero growth in real terms) since 1996-97, while other federal pro-gram spending has increased well above the rate of inflation.

Insufficiency of funds is only the first problem inherent in Fiscal Financing Agreements. The sec-ond is another federal government mandate, Own-Source Revenue (OSR) Agreements, which have proved one of the most controversial measures of any self-government agreement. Every Fiscal Fi-nancing Agreement signed in the past ten years has been accompanied by an OSR Agreement, resolute-ly required by the federal government as a compan-ion to a Fiscal Financing Agreement. OSR agree-ments provide that as an Aboriginal government develops its own revenue streams, through economic development, taxes, or any other type of revenue, those ‘own-source’ revenues will reduce the amount of funding transferred through the Fiscal Financ-ing Agreement. This clawback, which the federal government prefers to call an ‘inclusion amount’, is implemented over 20 years. In the sixth year of an agreement, the clawback rate is 3.3 per cent, and it increases by that same amount annually until after 20 years the clawback rate is 50 per cent. For exam-ple, at a full clawback of 50 per cent, if the federal government was scheduled to transfer $2 million to an Aboriginal government under an FFA, but that government generated $1 million in own-source rev-enue 50 per cent of the $1 million in own-source revenue would be ‘clawed back’ against the $2 mil-lion transfer, for a total transfer of $1.5 million.

Generally speaking, most Aboriginal self-gov-ernments agree with the intent of the policy, which is that as Aboriginal governments succeed, they should take on more responsibility for the provision of services. Indeed, most Aboriginal governments

30

would love nothing more than to receive no fund-ing from the federal government, and to instead be financially independent. But the challenge lies with the inflexible federal mandate related to the applica-tion of the policy. There is no flexibility related to implementation; no matter what the reality is within the Aboriginal self-government, the clawback rate starts at year 5 and applies an ever-increasing tax on an Aboriginal government’s success that reaches an effective tax rate of 50 per cent in 20 years.

To date, the federal government has been un-willing to contemplate structures that might better reflect the intent of the OSR policy, though there is no shortage of good policy ideas. Clawbacks could be suspended until specific own-source revenue lev-els, sufficient to provide some base level of capacity and development, were met, thereby leaving invest-ment in the community itself. Graduated clawback rates could be considered at different levels of rev-enue generation, similar to our progressive income tax structure. The federal government could pro-vide clawback exclusions (or credits) for investments in actions they support or desire (e.g. education or health). These ideas have all been floated, but the federal governments’ commitment to a harsh own-source revenue policy has been firm, with no regard to the disincentives to revenue generation and eco-

nomic activity that the current policy is forcing on many Aboriginal governments.

Finally, the third important problem with Fiscal Financing Agreements is that they return Aborigi-nal self-government entities to the same dependen-cy relationship that the self-government agreement was intended to get away from. By refusing to pro-vide constitutionally protected sources of funds to Aboriginal governments, the federal government retains real control over funding and dictates the terms of FFAs, making the Aboriginal government the permanent supplicant. Given the insufficient funding provided for in FFAs, Aboriginal self-gov-ernments are forced to remain focused on negoti-ating and arguing with the federal government for sufficient funds. As long as this is the case, Aborigi-nal leaders will be more concerned with making the case for funding to federal bureaucrats, rather than to their own citizens. This activity maintains the pri-mary accountability relationship as that between the federal and Aboriginal government, rather than cre-ating an accountability relationship between citizen and government, which drives proper governance outcomes.

In any other government financing structure, the direction of accountability is toward the service recipient, who as the taxpayer is the ultimate source

View of Jolliffe Island, Yellowknife, Northwest Territoires, 2012.

Phot

o cr

edit:

Nor

ther

n Pu

blic

Affa

irs


of funds. Property taxes paid by municipal residents fund the municipal services they demand, and fed-eral and provincial sales and income taxes paid by federal and provincial residents provide for federal and provincial services. Though a complex and in-exact equation, the basic contract between citizen and government remains intact. But the same can never be the case in an Aboriginal government sit-uation if tax-related sources of funds are not fully transferred, and if the primary funder of the Ab-original government is the federal government. If full control over revenue sources is transferred, rev-enues in economically marginal communities may still be insufficient; but this is a different sort of prob-lem, one which argues for the application of similar principles as with the federal-provincial relationship, including equalization. But these principles cannot be contemplated under the current situation; the federal government retains real control if Aboriginal governments must continue to rely on FFAs.

◉◉◉

Fiscal harmonization and the control relationship

The control relationship — and the helplessness of Aboriginal self-governments who are forced to re-main reliant on the FFA as a source of funds — is per-fectly exemplified in a recent federal proposal called Fiscal Harmonization. The federal government remains in the consultation stages of this proposal, but has issued policy papers providing a high-level description of the program and its purpose, stated as creating consistency, timeliness, transparency and fairness in funding for Aboriginal self-governments.3

The real effect of this proposal is to fix what was clearly a predictable mistake: As agreements contin-ue to be settled, AANDC simply does not have the capacity — financial and human — to deal with the variety of agreements. As a result, they now want to standardize funding flows. The adequacy of current funding, as well as the own-source revenue mandate — two critical problems that require fixing — are not part of the federal proposal.4 The substance of the change is process-oriented.

The heart of the proposal involves replacing negotiated, individual Fiscal Financing Agreements with a formula that will determine annual funding amounts for each Aboriginal government. This for-mula will have adjustment factors to reflect differ-ences in community realities, though these specific factors have not yet been determined. Input into the formula would be provided by Aboriginal gov-

ernments through an advisory process, which would purport to aggregate all distinct and unique Aborig-inal self-government entities across Canada — enti-ties used to negotiating their own levels of funding, albeit against inflexible negotiating mandates — into one common voice. Negotiation would be entirely replaced by this ‘advisory process.’ The federal gov-ernment is also proposing more detailed reporting requirements than those currently in FFAs in order to capture the data required of the formulas, and would issue a ‘public national report’ showing these amounts and statements.

Unsurprisingly, Aboriginal self-government groups are furious at this proposal, and have react-ed with strong letters and representations at var-ious consultation forums. But because Aboriginal self-governments remain reliant on FFAs, there is little that can truly be done beyond raising all the strong, logical arguments for why the Fiscal Harmo-nization proposal is further injurious to Aboriginal self-government. These include concerns around the loss of any existing Aboriginal control by replac-ing negotiation with federal formulas; the reduction of input from individual Aboriginal groups, forcing them into one national advisory process; and ulti-mately, increased dependence on unilateral federal decisions, rather than negotiations. In the end, how-ever, the federal government — still the holder of the purse-strings — will do as it pleases with this proposal, and Aboriginal self-governments — who continue to be supplicants as a result of insufficient sources of funds — will complain, but may ultimate-ly be forced to accept.

◉◉◉

Conclusion

Despite all the lofty words and statements, the promises of a new relationship, and the hope by all Canadians that Aboriginal governments can find a way to succeed on their own, the structure of the financing of these governments represents a major roadblock. Virtually every problem described above comes from inflexible provincial and federal nego-tiating positions. At their very core, these positions relate to an unwillingness to give away that which has been so hard-fought by these governments over so many years: authority over sources of funds. Nei-ther the provincial nor the federal government wants to relinquish control over property taxes, income taxes, sales taxes, royalty revenues, or other major sources of federal and provincial revenues. The pro-vision of services is transferred and constitutionally

32

protected under self-government agreements, but sources of funds to provide those services are not transferred, and the consequences of this current policy approach are forcing continued dependence and muzzling economic development.

There are policy solutions, but each requires a change to an existing federal or provincial mandate. These solutions include: provide for the complete transfer of substantive sources of funds to Aborig-inal self-governments, including resource royalty revenues and full property, income, and sales tax transfers including from non-Aboriginal citizens, and protect those sources of funds under the s.35 umbrella; under transitional FFAs (which will truly be temporary if other changes are made), provide funding adequate to provide services comparable to those enjoyed by other Canadians; and change OSR mandates to provide for more forgiving struc-tures that correspond to economic reality and that encourage investment in goods and services in areas (e.g. education and health) that have suffered from years of underfunding. Taxation can and should be applied to citizens of Aboriginal self-governments, but it will not generate sufficient revenue without the above changes. Those changes, if brought about, will create an environment for real investment and wealth generation.

If most of the above steps are not implemented, Aboriginal self-government entities will continue to fight an uphill battle for independence and finan-

cial sustainability. Those who do succeed will do so due to a combination of extraordinary leadership, good location, and a healthy dose of good fortune, while those who fail will cost federal and provincial governments much more than the revenue they are seeking to protect. ◉

Tom McCarthy is Public Services Director with Tsawwassen First Nation. He lives in Vancouver.

Footnotes1. A disclaimer: every Aboriginal self-government arrangement is unique, reflecting the richness and diversity of Aboriginal communi-ties across Canada. The author has generalized to a ‘common model’ (to the extent there is one) currently in place in Canadian self-govern-ment negotiations. This model may be best represented by B.C. and Yukon treaties; other self-government agreements, including Sechelt and Westbank, have unique aspects that are outside the scope of this paper. The author has the perspective of his experience, which is based on the B.C. treaty model, and his general knowledge of treaties and Ab-original self-government in the rest of Canada. The author apologizes to the extent that a description or critique is inapplicable to a partic-ular Aboriginal self-government. The author is grateful to those who provided thoughtful input, editing, and corrections to this paper: Kim Baird, Doug McArthur, Jim McCarthy, Colin Ward, Erica McCollum, and Russell Banta. 2. See the Canadian Human Rights Tribunal’s re-hearing of First Na-tions Child and Family Caring Society of Canada v. Attorney General of Canada, an ongoing legal drama that is a worthy subject for a dif-ferent article.3. AANDC’s stated purpose as per the following FAQ docu-ment on Fiscal Harmonization: http://www.aadnc-aandc.gc.ca/eng/1309196759102/13091969335504. An Aboriginal perspective on fiscal harmonization can be found at the website of the Land Claims Agreements Coalition, at: http://www.landclaimscoalition.ca/assets/120906_Fiscal_Harmonization_Initia-tive_Background_Brief.pdf

SUBSCRIBE TODAY!

First issue mails Summer 2013. Subscribe online at www.northernpublicaffairs.ca.Mail to: Northern Public Affairs P.O. Box 517, Stn. B, Ottawa, ON CANADA K1P 5P6

◎ Individual (Canada): $28.00

◎ Individual (United States): $49.00◎ Individual (International): $58.00

◎ Institutional (Canada): $150.00 ◎ Institutional (United States): $175.00◎ Institutional (International): $200.00(check one -- Plus GST/HST where applicable)

___________________________________Name (please print)

___________________________________Address

___________________________________Community Territory/Province

___________________________________Country Postal Code

___________________________________Email address(please include payment)

34

ibrary and Archives Canada (LAC) has always played a pivotal role in researching the history

and development of the treaty process in Canada and of Aboriginal history more generally. Under the terms of its legal mandate as set out in the 2004 Li-brary and Archives Canada Act, its purpose is to act as a central repository for documentary history chronic-ling Canada’s past. According to the Act, LAC is to:

acquire and preserve [Canada’s] documentary herit-age; to make that heritage known to Canadians and to anyone with an interest in Canada and to facilitate access to it; to be the permanent repository of pub-lications of the Government of Canada and of gov-ernment and ministerial records that are of historical or archival value.

This “documentary heritage” held by LAC en-compasses extensive holdings relating to Aborig-inal history and the treaty process. These include original treaties and land surrenders dating back as far as 1680, the majority of the Department of Indian Affairs’ internal records from 1872 to 1923, a substantial collection of annual reports from the Department of Indian Affairs from 1864 to 1990, and thousands of maps and plans relating to Ab-original reserves especially in Western Canada and the North.

In recent years, however, the ability of Library and Archives Canada to carry out these functions has come under considerable duress from both inside and outside the institution. It has endured devastat-ing funding and staff cuts conservatively projected to total nearly $10 million over the next two years, which at the discretion of LAC management have been disproportionately directed at research support and the delivery of services to people living outside Ottawa. This will significantly impact the ability of people living in the North to undertake research relat-ing to Indigenous issues including the treaty process. Immediate effects on Aboriginal and Northern research:

Elimination of National Archival Development Program: On June 1 last year, LAC eliminated the National Archival Development Program, a long-running

service aimed at enhancing the ability of Canada’s communities to preserve and make accessible their invaluable historical documents. Among the dozens of fully-approved projects which found themselves cancelled for 2013 alone were five in the Yukon, two in the Northwest Territories, and two in Nunavut.

Cancellation of interlibrary loan: On December 11, 2012, LAC eliminated its interlibrary loan service. The service had previously provided a way for com-munities outside Ottawa to obtain LAC’s holdings. Materials would be posted to local libraries, mean-ing people in the North could have direct access to a wide range of LAC documents and publications. These LAC resources will now only be available for consultation in Ottawa.

Cuts to reference services: Last year, LAC announced that reference services would be cut to six hours per day, and now access to this in-depth research support also requires a formal appointment. This means that researchers who do make the trek to Ottawa have less access than ever before to the expertise of LAC staff in making sense of LAC’s bewildering and often overwhelming array of records. If you can’t find what you’re looking for in the first place, it’s dif-ficult to get any research done.

Loss of expertise: LAC has also fired one-fifth of its workforce over the course of the past year and further staff cuts are expected. Management has been largely immune to these cuts. Almost all staff losses have been among working librarians, archiv-ists, and technicians. Crucially for researchers of Indigenous history, the archival position responsible for Aboriginal treaties and affairs has been vacant for some time and may not be filled. Like the cuts to reference services, this means that researchers have greatly diminished access to expert advice, particu-larly in areas of the greatest concern to those seeking to understand Aboriginal treaties and Indigenous history.

◉◉◉

Compounding Factors

Losses to service delivery and staff expertise at Library and Archives Canada will have an even

MODERN TREATIES

Library and Archives Canada and the federal government: Implications for researching and understanding Aboriginal treaties and history

Myron Grooverr


L

more profound effect on researchers of Indigen-ous and treaty history with the closure of Canada’s landmark ‘Aboriginal Canada Portal.’ For over a decade, this web service provided and promoted in-ternet access to information regarding all aspects of the Indigenous experience in Canada. In particular, it had a comprehensive section dedicated specific-ally to Claims and Treaties which aggregated and cross-indexed information from many federal stat-utes and departments for the benefit of researchers. Its closure on February 12, 2013 will mean research-ers have to rely more on Library and Archives Can-ada than ever before in conducting research around treaties and claims; and as we have seen, LAC is not in a strong position to meet that increased need.

Also worthy of note is a recent court ruling in favour of the Truth and Reconciliation Commis-

sion (TRC) that LAC and the federal government must pay to find, retrieve, and make accessible mil-lions of pages of material relating to the history of Residential Schools in Canada. Although this is an important victory for the TRC, it also means that an already-crippled Library and Archives Canada will have to devote vast staff and financial resources to this effort. This can only result in a comparative reduction in LAC’s ability to support individual re-searchers in the short term. ◉

Myron Groover, MA (hons), MAS, MLIS, is an archivist with the Vancouver Holocaust Education Centre and Chair of British Columbia Library Association’s Information Policy Comittee. He lives in Vancouver.

The Selkirk Treaty was signed at Red River, July 18, 1817. This copy is held at Library and Archives Canada.

Phot

o cr

edit:

Lib

rary

and

Arc

hive

s Can

ada,

RG

10,

Vol

. 184

6/IT

257

36

n December 7, 2006, Nunavut Tunngavik Inc., the Inuit organization charged with

implementing the 1993 Nunavut Land Claims Agreement — a modern treaty — filed a statement of claim in the Nunavut Court of Justice alleging the Agreement had been breached contractually 16 times by the Government of Canada. Alleged breaches involved social, economic, employment and environmental provisions, funding shortfalls, and withholding consent to 17 requests by NTI to arbitrate disputes. NTI claimed damages of $1 bil-lion.

Appearing before the House of Commons Standing Committee on Indian and Northern Af-fairs on November 30, 2011 John Duncan, Minister of Indian Affairs and Northern Development, had this to say about implementation of modern treaties:

We’ve made enough serious progress over the last three years really that most of the issues have gone away. Our implementation has been done very well. I may hear of some specific items today, but my understanding is that, for the most part, we’ve really addressed the whole implementation issue very well.

On June 27 2012, Justice Earl Johnson issued sum-mary judgment on one of NTI’s 16 allegations: that governments had not developed a “general monitor-ing plan” to “collect and analyze information on the long term state and health of the ecosystemic and socio-economic environment in the Nunavut Settle-ment Area” as required under article 12.7.6 of the Agreement. In granting NTI’s motion and awarding nearly $15 million in damages, Justice Johnson said:

…the Crown was indifferent to its obligations over many years and was only prodded into action by this lawsuit…I am satisfied that Canada’s failure to implement an important article of the land claims for over 15 years undermined the confidence of Ab-original people, and the Inuit in particular, in the important public value behind Canadian land claims agreements. That value is to reconcile Aboriginal people and the Crown. It would be manifestly un-just to allow the Crown to benefit from its failure to fulfill its obligations under Article 12.7.6. It is also important to ensure that the Crown properly respects and fulfills its obligations under land claims agreements…

The Crown has appealed this judgment which, along with NTI’s broader lawsuit, may well be des-tined for the Supreme Court of Canada. The key word in Justice Johnson’s closely argued judgment is “indifference“. While applied to only one of NTI’s 16 alleged breaches of the Nunavut Agreement, it is entirely fair to ask whether the Government of Canada’s “indifference” to its obligations lies behind the remaining alleged breaches. Further, it is also appropriate to ask whether federal “indifference” explains the grievances of other Aboriginal organ-izations seeking to implement their own land claims and self-government Agreements with the Crown.

How is it possible for Minister Duncan to main-tain a confident and entirely sanguine view of the Government of Canada’s track record on imple-mentation of modern treaties in the face of the com-mentary of the Land Claims Agreements Coalition which since 2003 has brought together all Aborig-inal peoples with ratified modern treaties, and the forthright findings of Justice Johnson? We can’t be sure, but the answer(s) to this question may reflect a mixture of ignorance, lack of interest, political in-structions, poor briefings, and more.

Whatever the explanation, “indifference” can not be allowed to stand—it undercuts the principle of “reconciliation” between Aboriginal peoples and Canadians generally articulated by the Supreme Court of Canada. But is the current state of affairs “fixable”, and if so, how?

The Land Claims Agreements Coalition has proposed several “fixes” to ensure implementation of modern treaties, including adoption by the Gov-ernment of Canada of a formal modern treaty im-plementation policy, and oversight and auditing of federal actions by an independent body modeled on the Office of the Auditor General of Canada. These are sensible, middle of the road suggestions, but even if adopted, would they work? Is the Gov-ernment of Canada willing and able to do what it takes to fully and fairly implement modern treaties? Alternatively, is Canada destined to repeat, at least in part, the sometimes shameful experience of the “numbered” treaties concluded in Ontario and the Prairies in the nineteenth and early twentieth cen-turies, but ignored or broken soon afterwards?

MODERN TREATIES

Implementing the Nunavut Agreement and other modern treaties: Does the Government of Canada “get it”?

Terry Fenge


O

37

In posing this question, perhaps it would be helpful to recall advice offered by the renowned Hungarian-born sociologist Karl Mannheim. He suggested more than fifty years ago that adminis-trative “solutions” adopted by elected governments could “manage” but would rarely “resolve” conflicts if the parties in dispute had fundamentally com-peting, as opposed to shared, values and mores. Is this where we are in relation to implementation of land claims and self-government agreements? If the answer is “yes”, what should we expect from policy, institutional and procedural reforms to improve im-plementation of land claims and self-government agreements?

A perspective on this question — actually a ser-ies of questions — might be gained by a close exam-ination of Canada’s Northern Strategy released in 2009. The Government of Canada claims in this policy document to have a “clear vision for the North”:

• Self-reliant individuals live in healthy, vital com-munities, manage their own affairs and shape their own destinies;• The Northern tradition of respect for the land and the environment is paramount and the principles of responsible and sustainable development anchor all decision-making and action;• Strong, responsible, accountable governments work together for a vibrant, prosperous future for all — a place whose people and governments are significant contributing partners to a dynamic, secure Canadian federation; and,• We patrol and protect our territory through en-hanced presence on the land, in the sea and over the skies of the Arctic.

At face value there seems little in this vision state-ment with which to take issue and much to support. The reaction of national and regional newspapers, all based in provincial capitals in southern Canada, to the Northern Strategy was uniformly warm and welcoming. Be that as it may, from the perspective of Northern Aboriginal peoples all is not quite so be-nign. That this vision is “for” the North rather than “by” or “with” it suggests that it was developed in Ottawa by federal agencies with little or, more like-ly, no engagement by the territorial governments, Northern Indigenous peoples or other Northern interests—a curious way of proceeding in light of the strategy’s call for governments to work together. Lets unpack the four statements that comprise the Northern vision.

All Canadians aspire to be self-reliant individ-uals — the first component of the Northern strategy — but far more than southern or western Canada, Northern Canada is organized according to collect-ives that reflect cultural, ethnic, land use, language,

political and historical realities. Land claims settle-ment areas defined in modern treaties are the most obvious geographical expression of this reality. Af-ter all, Nunavut was created as an Inuit homeland within which Inuit culture would thrive, not as just another political jurisdiction defined by arbitrary lines of latitude and longitude. The Northern strat-egy places far too much emphasis on the welfare of individuals and exhibits very little appreciation for the role collectives in the North.

The Northern tradition of respect for the en-vironment — the second component of the North-ern strategy — is simply not true. The fallacy of the claim is easy to expose: walk around abandoned mines in and around Yellowknife, look at valley bot-toms in central Yukon literally turned upside down by placer mining, and recall the ongoing clean-up of Distant Early Warning (DEW) line sites across the Canadian Arctic. Many recent settlers in the terri-torial North have an abiding concern for the natural environment, but in historical terms respect for the North’s natural world is an Aboriginal rather than a Northern tradition.

Surely nobody would seriously oppose strong, responsible and accountable governments — the key aspiration of the third component of the Northern strategy — even if it is a bit rich coming from Prime Minister Harper who has an earned reputation for disrespecting Parliament. But the revealing and key word here is “accountable”. Why is this word used and what does its use imply? Does official Ottawa believe that the territorial governments and/or Aboriginal self-governments are insufficiently ac-countable to their constituents? If so, where is the evidence? Or does this component of the Northern strategy imply that Northern governments should be held accountable to Ottawa? Is “accountable” a code word or even a euphemism that signals Ot-tawa’s view that the territories and its peoples are so politically immature they need to be overseen? This is not idle or uninformed speculation, for the ques-tion has been raised in Northern Public Affairs by Tony Penikett (Spring 2012), former Premier of Yukon and until recently Nunavut’s chief negotiator on devolution.

Enhancing Canada’s presence on the land —the fourth and final component of the Northern strat-egy—in order to better assert sovereignty has been a key Northern objective since Prime Minister Harper assumed power in early 2006. In 2007 and repeated thereafter by various ministers, the Prime Minister said: “Canada has a choice when it comes to de-fending our sovereignty in the Arctic: either we use it or we lose it.”


Many Inuit were deeply insulted by this aphor-ism which they interpreted as a dismissal of their extensive use and occupancy of land, sea and sea ice superbly documented in the three-volume Inuit Land Use and Occupancy Project published by the Government of Canada in 1977. The Prime Minis-ter’s statement also appeared to step back from the Government of Canada’s long-standing “historic title” position vis-à-vis Canada’s Arctic sovereignty rests upon Inuit use and occupancy of sea and sea ice. Some commentators suggested that the “use it or we lose it” statement actually weakened rather than strengthened Canada’s ability to assert Arc-tic sovereignty. After all, what other leader of a G8 country confident in its own sovereignty would sug-gest that how a nation uses its territory determines the acceptance by other states of its sovereignty over that same territory? The answer is nobody.

Entirely missing from the Government of Can-ada’s Northern strategy is an appreciation that to translate its Northern vision — actually any North-ern vision — into practice requires effective, effi-cient, full and imaginative implementation of mod-ern treaties. Painstakingly negotiated over many years, and ratified on behalf of the Crown by Par-liament, these agreements are the “law of the land”, and the promises they contain are not only fully

justiciable, they are protected under Canada’s Con-stitution. Does the current Government of Canada understand the place within Northern Canada of Aboriginal peoples and implementation of modern treaties? Does Ottawa “get it”?

Canadians in southern cities know little about modern treaties — long and complicated docu-ments full of legalese — but Canadians have an in-nate sense of fair play. They expect the Government of Canada to fulfill promises and obligations defined in modern treaties which have been ratified by Par-liament. Some Aboriginal peoples seem to be on the road to litigation as a means of prompting Ottawa to implement modern treaties. There is much irony in this, for negotiating land claims and self-govern-ment agreements was undertaken as an alternative to litigation. It is not beyond the realm of possibility that further implementation failures by the Govern-ment of Canada will result in political action per-haps including public protests. Ottawa has to “get it”, and soon. ◉

Terry Fenge is an Ottawa-based consultant. This article re-flects his personal views.


COMING SUMMER 2013!Canada & the Arctic Council

Photo credit: Arctic Council Secretariat

s the sun was fading and the aurora began to play more boldly in the Arctic sky in Decem-

ber 2012, northerners began to see the first flickers of Idle No More on social media. Initial reactions were bemusement, which grew into more detailed interest and finally flourished into four separate and fascinating events, three in Nunavut and one in Greenland.

Inuit have a complicated and convoluted re-lationship with power and government in both Canada and Greenland. Colonization has ravaged Inuit society both externally and internally, where western governance models have nearly superseded Indigenous ones and individual families deal with sometimes overwhelming levels of structural inter-personal conflict. While Inuit negotiators have been successful in negotiating historic land claim agree-ments and self-government in both Inuit regions, there is still a deeply embedded struggle to actually implement the agreements and have a lived experi-ence of sovereignty. Many adult Inuit have been brought up to be highly skilled and self-sufficient on the land, while at the same time, Inuit communities struggle to have healthy access to culturally relevant, locally harvested food. There isn’t enough employ-ment and material affluence across the Arctic, yet Inuit face land-transforming mining development as their only means of economic transformation to prosperity. The southern swell of Idle No More ar-rived in the North at a time when many Inuit and Inuit organizations were frustrated in this inconguity of post-colonial Arctic society.

The first Idle No More event in the Arctic took place on December 21, 2012 in Iqaluit. This was at a time when the round dance flash mobs were passionately sweeping across First Nations Canada and filling Christmas-bustling shopping malls. Pub-lic demonstration is novel in Nunavut. In fact one could argue that the emergence of the “Feeding My Family” social media mobilization around food sec-urity and the “Stop Harper” Canada Day parade float in 2012 mark the first tastes of street protest in Nunavut’s 15 year history (see Northern Public Affairs’ Fall 2012 issue for more on these movements). It was therefore a fairly remarkable number of people — about 25 people, Inuit and non-Inuit — that

gathered at the airport at a time when North-south traffic peaked as schools and offices closed for the holidays. Iqaluit has a population of about 7, 000 people — large by Arctic standards, but still small enough that a gathering of drum-dancing protesters was a badly kept secret. Members of airport security were outside smoking as protesters began to trickle in with brightly coloured drums, Canada flags made from sealskin and posters. One security officer dis-creetly asked as protesters walked by him where they would be located and how long the demonstration would take. Once he found out the details, he gave a quiet thumbs-up. The group sang a popular ajaaja song from North Baffin Island and drum-danced for about ten minutes. The song is about the resilience to live through a cold winter with hope and excite-ment for the year to come. At the end, a person from the group called out that they were gathered to show that Nunavummiut see the need for the federal gov-ernment to respect and implement all Aboriginal land claims agreements in Canada. Applause rip-pled through the airport and the event concluded with demonstrators speaking with Northern media.

After this first event, there was a burgeoning of Northern awareness and empathy for the Idle No More on social media. Inuit in southern Canada were active in posting articles, pictures and posters about the movement, as well as speaking about their participation in demonstrations all across the coun-try. Inuit in the North redistributed all this informa-tion on a regular basis and started producing materi-al of their own. One example of this type of activity was a family from Resolute Bay took a picture of themselves wearing traditional clothes, holding a sign saying that people from the “top of the world” support Idle No More. This picture got shared many hundreds of times.

The second event also occurred during the evening rush hour of January 16, 2013, again in Iqaluit. Whereas the first flash mob was organized by people fairly well-established in Nunavut’s public arena, this demonstration was organized by youth, who were attending a protest for their first time. Approximately 40 people attended the blockage of Iqaluit’s busiest intersection, tightly holding the hands of their bundled children and colourful signs

39

SOCIETY

Naamaleqaaq! Idle No More in the ArcticLaakkuluk Williamson Bathory

A


in English and Inuktitut. Again the surprise aspect of the demonstration was mitigated by town talk: the municipal police force and the RCMP showed up to provide escort as the demonstrators marched the Ring Road. The escort was welcomed as the police provided safety at all intersections in the full winter dark of January. It was a frigidly cold night, so many people, especially those with children, left as the march began. About 20 people finished walk-ing the whole Ring Road, their boisterous slogans and songs echoing off the large buildings and shops and located along the route. Many motorists honked

their horns and people came out on their balconies to watch the excitement on the street.

The third Arctic Idle No More event was more of the lack of an event, but still could be slated as a success for the movement. Igloolik as a community has strong connections to the rest of the Indigenous world through its many artists and therefore many people there were interested in Idle No More hap-penings. Three or four people began organizing a demonstration, using the same social media means as all Idle No More organizers. The key planners began getting facebook messages, status updates,


41

emails and even phone calls to their home with com-plaints that a public demonstration would not be tolerated in Igloolik. Some dissuaders said that or-ganizers blundered by not making a request to town council first. Others said that Idle No More was strictly a First Na-tions issue; something that Inuit should not be involved in. Others commented that while the mandate of Idle No More was something that may affect all Can-adians, Aboriginal and non-Aboriginal alike, the Inuit approach to social change is not reliant on public protest and agi-tation and, on the contrary, focuses on patience and quiet negotiation; it is a non-Inuit thing to gather on the streets with raised fists and posters. The Igloolik Idle No More event was postponed once and finally cancelled all together. Why would this cancellation possibly be considered a success for Idle No More?

Nunavut, as a public government, a group of municipalities and an assembly of various Inuit organizations, suffers from great voter apathy. It is common for voter turnout for any election to hover around 30%. This means that Nunavut politicians are generally elected by a very small and particularly motivated political elite and politics are not a part of everyday, informal public interactions. To have a small town in Nunavut publically and vocally discuss the pros and cons of having a political event was en-gaging and pointed to the heart of the Idle No More movement; rising up is not simply about protesting federal government bills, but also a call from within to make personal and individual politicized choices.

The fourth event happened on January 29, 2013 in Nuuk, Greenland. By this time there had been demonstrations and shows of support for Idle No More internationally, from Ghana to New Zealand, and all across the United States and Europe. Green-landic enthusiasm for Idle No More came at a time of especially strong post-colonial activity. Greenland has been negotiating its way through Scandinavian colonization since the arrival of the first Lutheran missionary in 1721. In such a long period of time, one can imagine the depths of colonial experience and the struggle for Indigenous emancipation in a country of mostly Indigenous citizens. Since the es-tablishment of Lutheranism as Greenland’s nation-al religion, the qilaat (Greenlandic drum) has been simultaneously suppressed as an instrument of hea-

thenism and rebelliously kept alive as a tool of spirit-ual and cultural expression. In October 2012, after a three-hundred-year antagonistic relationship, the qilaat was formerly welcomed, performed and hon-

oured for the first time in the church. This event was touching, humbling and deeply spiritual for many Greenlanders. The January 29th Idle No More event was the first large public drum-dance since the re-ligious welcoming of the qilaat. About 150 people came to a public square in Nuuk, all carrying signs with Canada flags on them and messages written in both English and kalaallisut. The drum-dancers and the crowd sang traditional ajaaja songs one after an-other for an hour. One could see the ardour people had for the qilaat and the music, as well as the eager-ness to show Indigenous pride to an international community. Greenlandic Idle No More material was shared widely and added much to the movement as a whole.

Since January, there have not been any more public Idle No More demonstrations in the Arctic. In Nunavut, Inuit still debate whether protest is an effective means of making political change. Focus has also shifted back to other important political ac-tivities such as legislative sittings and negotiations on the status of polar bears on the endangered species list. In Greenland, people were caught up in heated political debates as the national election loomed on March 12. Party politics are a strong point of iden-tity in Greenland and with the added intensity of the discussions on mineral development in the country, the national election will prove to be seminal. Idle No More may or may not become an Inuit rallying call in the future, but the four separate events that have happened in the past few months were import-ant additions to a full-hearted and widespread In-digenous movement. ◉

Laakkuluk Williamson Bathory is Executive Director of the Qaggiavuut! Society.


Idle No More may or may not become an Inuit rallying call in the future, but the four separate events that have

happened in the past few months were important additions to a full-hearted and widespread Indigenous movement.

42

y name is Greenlandic, but I am not. I am a 20-year-old Inuit girl from a small com-

munity in Nunavut called Igloolik. My mother is an Inuk born on the land in Nunavik and she grew up in Quaqtaq, Quebec. My father is a Qallunaaq — a “white man” or “southerner” — born in Montreal, Quebec. He has been living in the North, always surrounding himself with Inuit, for over 30 years. He has lived in Inukjuak, Kimmirut, Pond Inlet, Cape Dorset, Igloolik, and many other places in the North, but for now he resides in Iqaluit. My mother understands and speaks many of the Inuktitut dia-lects, including a bit of Greenlandic, while my father has learned Inuktitut in the years he has lived in the Arctic. It is a daily part of our lives.

I, however, lost the language when I was in my adolescence.

I grew up with two dialects: the Igloolik dialect, which corresponds with other dialects in North Baf-fin, and the Nunavik dialect, my mother’s dialect. I came to know them very well when I was a child. That is, until I started to learn English. And then other children in school began to tease me.

See, looking more like a Qallunaaq than an Inuk has its cons when you live in a small community. It means the other kids don’t think you have any Inuk blood in you at all. What begins with one ignorant child spreads out to their parents and their friends and so on until the whole community thinks, “This child is not an Inuk. He or she is a Qallunaaq.” I’m sure many other halflings can relate to this. I know my brother and sister can.

So, naturally, the half-Inuit children get targeted growing up. I’m not blaming the teasing for making me lose my language. (Well, maybe just a little). On the contrary, I know that my brother went through the same teasing throughout his childhood, and my parents have told me that as a child, he wasn’t the best at Inuktitut and chose to lean more to the Eng-lish side of conversation. Since then, he’s become an amazing Inuktitut speaker. I suppose he realized that it would only get worse if he believed what the other kids said, “You’re a Qallunaaq, you don’t be-long here, go be a Qallunaaq somewhere else.” So, my brother, being the wonderful and innovative per-son he is, decided to say to those who looked down

upon him, “You know what? I am Inuk, see? Hear me speaking my language to you?” And now, he has his own Inuktitut TV show on APTN that addresses the issues of language and youth.

My sister understands Inuktitut better than I do, though she chooses not to speak it. I think it’s because of pronunciation. As I was growing up, I had trouble pronouncing certain Inuktitut words, particular throaty consonants. I couldn’t decipher the difference between “Ra’s”, “Qa’s” and “Ga’s” and I managed to make something that could be explained simply into harder and more complicated words and sentences that made absolutely no sense. For example, say I was asking you to go and grab something for me, rather than saying, “Taanna qaigu.” (Give that to me), I would twist it with my mouth and brain and say something like, “Can you go and get that thingy over there, not in that spot but in the other spot. And then could you bring it back over here?” I don’t know if my sister and I have this in common. Truthfully, I’ve never spoken to her much about Inuktitut.

For my high school years, I only knew the sim-plest terms in Inuktitut and hardly understood any-thing anyone ever said to me. And, over those tender, impressionable years of childhood, I came to believe that I had no Inuk at all inside of me. I believed I was Qallunaaq through and through. My childhood was riddled with confusion, hearing people calling me a Qallunaaq throughout my life, telling me that I was not an Inuk. I would think to myself, but isn’t my mom Inuk? But... my grandparents are unilingual. When I visit my mom’s family all we speak is Inuktitut... I thought, some-how, that I could be a Qallunaaq even though I was related to Inuit. I didn’t grasp the concept of half-Inuk half-Qallunaaq until I was much older. It also didn’t help that English became the prime means of communication at home and at school either.

When I was fifteen, my parents and I moved to Iqaluit, where my brother was already living. I finished Grade 11 and 12 at Inuksuk High School. I also went through a semester at a private school in Australia for an amazing educational experience. And I think these two experiences are the reason I have regained my language and am now thriving as I relearn my mother tongue.

SOCIETY

My mother tongueAviaq Johnston


M

Because if I hadn’t gone to Iqaluit, I wouldn’t have realized how poorly Inuktitut was spoken among people my age, and how poorly it was be-ing taught in schools and that when I would have kids they would probably never learn the language. It was pretty much a slap in the face. I love being Inuk, I love my culture, and I love my home in Nunavut and everything else about Inuit. I suddenly grasped for anything I could reach that was related to my Inukness, particularly while I was in Australia, experiencing a place where I was the only person of my culture. The people I met there, my second family and all the friends I made, were so interest-ed in where I was from, the Inuit and their culture. One thing I realized while I was there, however, was that I didn’t fully understand my homeland and my culture.

High school Inuktitut classes are certainly not up to par. I heard of them being referred to joking-ly as spares, a sad comment I certainly agree with. Word searches just don’t cut it. Copying words from one sheet to another doesn’t cut it. Typing the syl-labics into word documents going from “ti ti ti ti ti ti ti” to “ga ga ga ga ga ga” does not work. What is the point in learning how to type in Inuktitut when you do not understand the constructs of the sentence or the meaning behind the words that you type into the document?

Inuktitut needs to be spoken at home, yes. And I’m sure it is, it truly is. I was surprised when I met some new friends who were perfectly fluent in Inuk-titut when I first visited their homes. It’s the fact that they are shy or embarrassed to speak it in front of peers and acquaintances because it is not spoken at

school or at places they hang out. This means that the fluency among young Inuit is slowly dwindling down to a handful of Inuit kids being raised by proud Inuit parents, and to half-Inuit with a Qal-lunaaq parent who supports and takes interest in the Inuit culture and language (much like my father).

But schools also need to take the initiative and get students to actually speak Inuktitut in their class-rooms, to correct them when they are wrong, to tell them how they could reconstruct their sentences and to pronounce words better. It serves no purpose to let it go and think, “They’ll learn someday.” Hon-estly, a student will not learn the language on his or her own. If the teacher is not the one teaching the language, then no one will. And consequently, that is how the language is still being lost. It is a teacher’s job to teach, isn’t it?

However, it is not only the Inuktitut classes that are inadequate. It is also the Alberta curriculum that the education system is still under.

High schools in Nunavut and the other Inuit re-gions need to start incorporating relevant topics into what they teach Inuit students. I cannot stress this enough. They need to learn about politics and Inuit organizations and Inuit history, not about farms and trees and ani-mals that some of the students will never see except on the television. Inuit are very much involved in politics, from the local to the international level. Inuit are recognized for their contribution to Can-adian sovereignty in the Arctic, and with the settle-ment of the Nunavut Land Claims Agreement in 1993 we have real control over many parts of our economy. Despite these important developments, many young people still don’t understand our treaty, our political

Igloolik Radio Station, Igloolik, Nunavut, February 2013.

Phot

o cr

edit:

Nor

ther

n Pu

blic

Affa

irs

organizations, or our political history. Inuit history is bursting with interesting but extremely saddening things that are still completely relevant to the every-day lives of young people because of the intergener-ational effects that those tragedies have on us. This is important especially for Inuit youth to learn, as they are the ones that make up over half of the population in Nunavut. They need to learn – to be taught – that what they do or don’t do is important to the better-ment of their lives.

Thomas Berger recommended to the federal government and Nunavut Tunngavik Inc. that an Inuktitut K-12 education system be implemented in Nunavut, with proper curricula. Why has this not yet begun? Why is it that through middle and sec-ondary schooling there is a gradual withdrawal from Inuktitut in students? Why is it that it isn’t until stu-dents go to programs such as Nunavut Sivuniksavut (NS) that they become engaged in their language?

I especially have NS to thank for bringing Inuk-titut back to me. Unlike high school Inuktitut class-es, the class at NS is comparable to a boot camp. Many of my classmates, including myself, had very little knowledge — sometimes nothing at all — of Inuktitut. We also had many dialects to work with: Kivalliq, Inuinnaqtun, and Baffin. Yet, in nothing less than an amazing feat, our instructor managed to teach each of us back each our dialects and make our class fun at the same time. Now most of us are fluent and able to communicate with family mem-bers we couldn’t understand before. Inuktitut was our favourite class sometimes. Inuktitut is an intri-cate, interesting, and absolutely beautiful language. Thank you, Martha, Becky, and Melissa for being the best Inuktitut teachers out of all I had through-out my education. Your fun approach and constant drilling made the whole experience into something that wasn’t a chore. I believe it’s a proven fact that people learn better when they are having fun.

And as of now, how am I keeping up my Inuk-titut? I was asked this in my last Inuktitut class at NS: Now that you’ve improved on your Inuktitut, how do you plan on keeping it up? I didn’t have an answer; I honestly thought I would lose it all over again. The fact is I am learning more and more of it every day and speaking more and more of it all the time. In my everyday life, I am speaking Inuktitut to my friends and we teach each other new words and phrases. To my mother I ask questions about what this particular word means or how to say a certain sentence in Inuktitut. To my father, I tell him what a particular word could mean when he asks. Even answering the simple question, “What did you do yesterday?” in Inuktitut helps dramatically.

People fluent in Inuktitut and Inuinnaqtun are deeply sought after in the workforce, particularly in the government. Let that sink in. Can you speak Inuktitut? Are you educated? If you are, you can go and get a job at the Government of Nunavut. If you aren’t, you have all the resources to learn at your fingertips or right in front of you. Talk to your parents, grandparents, your friends, someone you trust. Finish school. Get your high school diploma. Do something to improve your life, for if you do that you will help the rest of Nunavut.

The hardest thing to describe is the feeling I get when I have a conversation in Inuktitut with some-one and understand every word of it, or when I read in syllabics or roman orthography and it’s not just a jumbled mix of the words I know and words I don’t. I suppose it is pride. I am proud of myself for learn-ing and understanding my language and I love that.

We are a generation born into change. We have no great purpose in our lives or in the universe ex-cept to adapt to the modern world while keeping a firm grasp on our history and culture. The Inuit youth of Nunavut have no war to fight for; we have no tragedies to deal with such as residential schools and dog slaughters and relocation. We only have the aftermath of our parents and grandparents’ genera-tion. If we stand up and fight for Inuktitut, fight for our history to be taught in schools, fight for our own curriculum and not Alberta’s, we can accomplish so many things. We can throw away the awful stereo-types and statistics. We need to follow the footsteps of John Amagoalik, Tagak Curley, Jose Kusugak, Zebedee Nungak, Eric Tagoona, Mary Cousins, Mary Simon, (who were all youth at the time of their movement) and every other Inuk who has done something for our people.

We can’t let the name Inuit become a tarnished word that depicts images of alcoholism, drug abuse, highest rates of suicide, teenage pregnancy and criminal acts. We must embrace being Inuk. We can’t let the bad define us. We must overcome it. We can’t let Inuit become a thing of the past; we can’t let our culture die. We must adapt and thrive. ◉

Aviaq Johnston is a second year student at Nunavut Sivunik-savut. An avid reader and writer from Igloolik, Nunavut she is now living between Ottawa and Iqaluit to pursue her post-sec-ondary education. She aspires to continue contributing to the literary world.


n the competitive world of mining exploration, immense wealth can come from staking the right

piece of ground. But staking can also carry great fi-nancial risk if prospectors can’t secure their interests confidentially. Across Canada, free entry staking has guaranteed a high degree of confidentiality at the outset of exploration activity. It allows prospectors to stake a property and record the interest with the Mining Recorder’s Office without having to conduct consultations. The certainty of this system helps to drive investment.

Until recently, the freedom to stake a piece of land for the purpose of mineral exploitation was firmly entrenched in Canadian law. But this certain-ty has been shaken by a recent decision of the Yukon

Supreme Court, suggesting the Aboriginal right of consultation and accommodation supersedes the re-source developer’s right of free entry.

In some areas of Canada, especially across the North, where certainty over lands and resources has been called into question by the assertion of Ab-original title, governments have moved to negotiate modern treaties. The Northern treaties in Yukon, Northwest Territories and Nunavut create environ-mental assessment processes (different in each) that help to fulfill the Crown’s duty to consult and ac-commodate.

Certainty is held as one of the primary objec-tives of modern treaties (also known in Yukon as Land Claim Final Agreements), and certainty is in

GOVERNANCE

Challenging free entry staking:The duty to consult

Kirk Cameron

I

Phot

o cr

edit:

Nor

ther

n Pu

blic

Affa

irs

Whitehorse, Yukon, July 2012.

part gained through specificity in the treaties on when consultation and accommodation is required. As environmental consultant Steven Kennett notes in his chapter in the Conference Board of Canada’s 2010 publication, Canada’s North, What’s the Plan?:

In fact, the desire for greater certainty is a common thread that connects diverse perspectives on land use:

• Industry wants certainty regarding access to land and resources and regarding the rules of the game that will apply to project proponents within environmental assessment and regulatory processes. • Aboriginal people want certainty that their values and interests will be respected and that a stewardship ethic will guide land use deci-sions….

Yukon’s regulatory regime is partly the result of the system of modern treaties negotiated under the framework of the 1993 Yukon Umbrella Final Agree-ment. Today, 11 of the 14 Yukon First Nations have signed treaties with the Crown that establish mu-tually agreeable land and resource ownership and management regimes. As a result, there is now a greater degree of certainty as to when Yukon’s en-vironmental assessment process and consultation re-quirements are triggered.

Under the Yukon Final Agreement, thresholds trigger an environmental assessment under the Yu-kon Environmental and Socio-economic Assess-ment process. However, these thresholds are set at a higher level of activity than one would normally undertake at the level of staking. In federal law (the Yukon Environmental and Socio-economic Assessment Act, or “YESAA”), no development can occur where there is a trigger until the EA process is complete. Given the YESAA s. 74(2) consultation requirement, the EA process is generally considered sufficient, to satisfy the duty to “consult and accommodate” despite the fact that it does not require assessment for staking activities. This could very well be tested at some point, but today the process is working.

However, there are three areas of Yukon that do not have a modern treaty in place: the area by the Yukon-Alaska border in central Yukon where the White River First Nation has its Traditional Terri-tory, and in the large and resource-rich Traditional Territories of the Kaska in South-East Yukon bor-dering on both the Northwest Territories and Brit-ish Columbia (the Kaska see themselves as a single integrated tribal group extending well into British Columbia, and do not recognize the arbitrary bor-der drawn between B.C. and Yukon — an article for another day). The Traditional Territories in the

Kaska region are made up, in the Yukon portion, by the Ross River Dena Council and the Liard First Nation near Watson Lake.

The Kaska do not accept many elements of the Umbrella Final Agreement, especially where it de-fines (limits to their way of thinking) their Aborigi-nal rights. For them, the notion of splitting up this land into areas owned by the First Nations and those owned by a foreign entity - the Crown - flies in the face of their stewardship philosophy which extends Kaska responsibility to the environment as a whole. Where activities in their Traditional Territory are concerned, they remain vigilant and assert their Ab-original rights to protect their interests.

The free entry system has been called into ques-tion recently by the findings of the Yukon Court of Appeal in the judgment Ross River Dena Council v. Gov-ernment of Yukon, 2012 YKCA 14. Unlike Yukon treaty First Nations, the Kaska Dena believe the duty to consult should apply to staking activities. They have argued that the free entry staking process can signifi-cantly affect Kaska lands and disturb considerable areas of their Traditional Territory. They contend that the regulatory regime, which is built on the principle of free entry, is inconsistent with legal judg-ments that require consultation and accommodation before development activities occur. Specifically, the Kaska rely heavily on the judgment in Haida Nation vs. British Columbia (Minister of Forests) 2004 SCC 73.

The Kaska Dena challenge to free entry staking was brought before the Yukon Supreme Court and heard by Mr. Justice Veale. On November 15, 2011, Justice Veale found in favor of the Kaska’s argument that free entry staking has sufficient impact on land and resource values (e.g. wildlife, traditional foods, heritage and archaeology) in the Traditional Terri-tories to warrant consultation with the Kaska in ad-vance of staking. The Yukon government appealed, and in December 2012, Mr. Justice Groberman of the Yukon Court of Appeal ruled the following:

The Appeal Court, however, raises the bar con-siderably beyond the findings of the Yukon Supreme Court ruling:

[7] I do not, however, agree with the chambers judge’s view that mere notice to the plaintiff of the recording of a claim will always satisfy the Crown’s Haida obligations. In order for the Crown to meet its obligations, it must develop a regime that provides for consultation commensurate with the nature and strength of the Aboriginal rights or title claim and with the extent to which proposed activities may in-terfere with claimed Aboriginal interests.


The Appeal Court goes on to say:

[33] …While Class 1 exploration programs are lim-ited, they may still seriously impede or prevent the enjoyment of some Aboriginal rights in more than a transient or trivial manner.

Ultimately, Mr. Justice Groberman states:

[37] The duty to consult exists to ensure that the Crown does not manage its resources in a manner that ignores Aboriginal claims. It is a mechanism by which the claims of First Nations can be reconciled with the Crown’s right to manage resources. Statu-tory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist.

The Court agreed that the Government of Yu-kon should be given time to remedy its legislative regime (statutory and regulatory) for quartz mining activity to ensure that there will be appropriate con-sultation.

The debate is not over, however. It came as no surprise to the Kaska and many of

us watching from the sidelines that the Yukon gov-ernment has asked the Supreme Court of Canada for permission to appeal December’s Yukon Court of Appeal ruling. The Supreme Court generally ac-cepts about ten per cent of the requests for appeal, and this is largely determined by whether the case at point is of significant public interest and of national importance. The Premier of Yukon, the Honour-able Darrell Paslowski, stated in a recent interview that he felt the case to be of national importance given that most provinces and territories have some form of free entry staking process akin to that found in Yukon.

Interestingly, in this new century, Yukon has be-

come something of a “lightning rod” for bringing certainty to issues of Aboriginal rights, especially relating to the notion of “duty to consult and ac-commodate.” At the start of this century the Lit-tle Salmon/Carmacks First Nation took the Yukon government to court over this duty as it related to agricultural property in their Traditional Territory. The matter found its way to the Supreme Court of Canada (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103), whose decision reinforced the perspective of the lower courts that the existence of a land claim agreement does not in itself mean that all undefined Aboriginal rights and title are extinguished.

Ultimately, the Yukon experience demonstrates a dynamic and ongoing intergovernmental tension among Aboriginal and public governments which from time to time must be tested through the courts. The effort to bring greater certainty through mod-ern treaties has been successful, though the Little Salmon/Carmacks case suggests that treaties are not the perfect remedy for all matters testing this in-tergovernmental relationship.

In those areas of Yukon where there are no trea-ties, the challenge is greater. Without the willingness of parties to work out matters at an intergovernmen-tal table of some kind, issues such as free entry will have to painstakingly work their way through the Court system to find reasoned accommodation and compromise. It is a difficult way to find Kennett’s illusive “certainty”, but it is today the only option we have given the unwillingness of the parties to find solutions within an intergovernmental conver-sation. ◉

Kirk Cameron is President of northSense management con-sulting and a Whitehorse city councillor.

Phot

o cr

edit:

Nor

ther

n Pu

blic

Affa

irs

The Old Fire Hall and the White Pass & Yukon Route, Whitehorse, Yukon, July 2012.

ill C-47, the Northern Jobs and Growth Act, now awaiting Royal Assent, has important and

potentially far-reaching implications with respect to the implementation of Northern land claims agree-ments. This article will focus on one part of this bill: Part II, or the NWT Surface Rights Board Act. The bill’s remaining parts are concerned with implementing provisions of the Nunavut Land Claims Agreement and amending the Yukon Surface Rights Board Act that was previously passed as part of the Yukon Umbrella Final Agreement implementation.

If passed, the Bill would establish a NWT Sur-face Rights Board, a body that would be responsible for settling any disputes that may arise from mineral and oil and gas development underneath privately owned or occupied lands. Access cannot be denied to those holding subsurface rights and a system of compensation and conditions on access is to be es-tablished under this new Board.

The Harper government would have us believe that Bill C-47 is an essential piece of legislation, a necessary step to improve the investment climate in order to foster economic development in the North and to successfully settle Northern land claims agreements. In fact, the Bill’s designated short title bears little relation to its content. Neither the word “jobs” nor the word “growth” appear anywhere in the actual bill. “Employment” appears only once, in relation to employees of the Nunavut Planning Commission.

Industry, especially the mining sector, supports

Bill C-47 for the obvious reason that the act seeks to improve the investment climate by, in part, stream-lining a “broken” regulatory system, a notion that seems to have been adopted by both government and the mainstream media.

Given that there are provisions already in place for the adjudication of surface rights and access in the existing laws, regulations and agreements1, and given that no surface rights disputes have been arbi-trated under the Gwich’in, Sahtu or Tlicho land claims agreements, we wonder whether there is any urgent need for such legislation?

The NWT Surface Rights Board Act will create un-certainty, overlap with — and in some cases dupli-cate — existing regulations and authorities, cost taxpayers more, impose additional administrative burdens, and ultimately serve little practical purpose as few disputes are likely to be referred to this body. Why “fix” something that is not broken?

◉◉◉

Surface rights board not consistent with co-management model

Under most of the Northern land claims agree-ments, Aboriginal title and rights are exchanged for defined rights to land, to participation in resource management and decisions, and in some cases, to self-government. Where boards or authorities are established, a co-management model is typically

GOVERNANCE

Digging beneath the surface: The NWT Surface Rights Board Act

Kevin O’Reilly

B

Frame Lake, Yellowknife, Northwest Territories, June 2009.


49

adopted, in which public governments (i.e. federal and territorial governments) nominate and/or ap-point half of the members, and the other half are nominated and/or appointed by Aboriginal govern-ments. A co-management approach was adopted for the Yukon surface rights board (see 9(2) of the Yukon Surface Rights Board Act). There are residency re-quirements for some regional panels of the proposed NWT surface rights board (s. 13).

Currently, any disputes under the Gwich’in and Sahtu land claims agreements, including those relat-ed to surface rights on Aboriginal owned lands, are to be referred to arbitration panels that were also established pursuant to the co-management model.

The spirit and intent of the land claims agree-ments would seem to suggest that the co-manage-ment model should be applied to a NWT Surface Rights Board, should it be created.

The Bill would give the authority to the Minister of Aboriginal Affairs and Northern Development to appoint all the members to the NWT Surface Rights Board. Officials from the ministry have stat-ed that the Minister may contemplate nominations from Aboriginal governments or through a public process.2 This is not the same as a co-management model. Undefined residency requirements seem to have become an issue recently for some Senators and the same problem may happen for members of the NWT Surface Rights Board.

◉◉◉

Fairness issues

The surface rights regime spelled out in the Bill would apply in all areas of the NWT, even if no land claims agreements are in place (see s. 2 definition of non-designated lands). Those Aboriginal govern-ments that have no settlements or agreements cov-ering their rights appear to have little or no ability to access the process to set terms and conditions or receive compensation, without proving occupancy. This is simply unfair. The federal and territorial governments also need to place a higher priority on recognizing and negotiating these outstanding rights in a fair and timely fashion.

Furthermore, the determination of compensa-tion on non-designated lands discriminates against Aboriginal peoples outside of the established land claims settlement areas, in that access to compen-sation does not have to consider the effects on wild-life harvesting, cultural attachment, and peculiar or special value of the land (see s. 74(2)). Clearly this is unacceptable and seems likely to be subject to a

constitutional challenge at some future point. The surface rights regime in the Bill should not apply in areas of the NWT where no land agreement is in place.

According to the proposed Bill, a hearing pro-cess is to be set up to require the NWT Surface Rights Board to hear only from the party exercising a right of access and the party that owns or occupies the land (see s. 39). There can be no other parties to the process, and thus no room or ability for public interest organizations or other individuals to express views and concerns, or provide information or ex-pert opinions that the Board should consider and may even find helpful. This is not the case for the Yukon (see s. 29 of the Yukon Surface Rights Board Act where Ministers and other interests can be parties) or even the arbitration panels that currently have ju-risdiction over surface access disputes in the Sahtu and Gwich’in settlement areas where other parties can be heard subject to the agreement of the re-spective panel (see Gwich’in Land Claims Agreement s. 6.3.4(b) and Sahtu Dene-Metis Agreement s. 6.3.4(b)). It is procedurally unfair to restrict access to the NWT surface rights process so narrowly.

At a minimum, the proposed Board should have the discretion to hear from those other than the par-ties to the dispute, or simply leave the process open to others to make written representations that the Board will then consider.

◉◉◉

Entrenching free-entry and changing the balance of power

The NWT Surface Rights Board Act will set up a process for awarding access to subsurface developers and compensation to owners or users of the surface on Aboriginal, Crown and privately owned lands in the NWT. A right of access is established and only terms and conditions can be placed on such access, including compensation. In other words, if this Act is passed as written, access cannot be denied. This will further entrench the free-entry approach to mineral rights disposition in the NWT, an approach that many Northerners reject but one that is consis-tent with the Conservative vision for Northern de-velopment.

Surely we have evolved in our thinking beyond believing that mining and oil and gas development is the highest and best use of land that should super-sede all other uses, while other users and uses can be compensated through money alone. The recent decision of the Yukon Court of Appeal (Ross River


NORTHWEST TERRITORIES

Canol Road, Northwest Territories.

Photo credit: Anthony DeLorenzo

51Northern Public Affairs, Spring 2013

Dena Council vs. Government of the Yukon) and legislative changes in other jurisdictions, including Ontario, show that free-entry is really an antiquated, unfair, and unsustainable rights disposition regime.

It appears that the right of access for commer-cial purposes even applies in built-up areas like Yel-lowknife where someone could stake mineral claims on private property and subsequently obtain access and destroy homes and private businesses in the pro-cess (see s. 2, non-designated land definition and s. 69). The Gwich’in and Sahtu land use plans do not apply to lands within municipal boundaries. It could be argued that this Act should not apply within mu-nicipal boundaries, and municipalities should have the ability to avoid disputes by prohibiting mineral rights acquisition within their boundaries.

◉◉◉

Completing the implementation of NWT land claims agreements

A surface rights adjudication process is con-sistent with what was contemplated in the NWT comprehensive land claims agreements. However, a surface rights adjudication process can only be meaningful in the context of an integrated and fully implemented resource management system as re-quired through land claims agreements. Full imple-mentation of an integrated resource management system would include:

• legally binding land use plans;• fully resourced co-management boards with timely appointments;• sound environmental assessment, and land and wa-ter regulation;• effective state of the environment reporting; and, • audits that resulted in improvements to the environ-ment and communities.

In the absence of a fully functioning and bal-anced integrated resource management system, a surface rights process as contemplated in this Bill would create an unjust power imbalance between proponents and impacted communities.

Much work remains to be done for full imple-mentation of the integrated resource management system in the NWT in a timely and fair fashion, including additional financial resources. The two NWT Environmental Audits conducted pursuant to the Mackenzie Valley Resource Management Act provide the most helpful and relevant guides for how all of this can be accomplished, yet the federal govern-ment has not responded to these reports from 2005

and 2010. Governments seem to be more interest-ed in dismantling and restricting the application of the integrated resource management in the name of so-called regulatory improvement or reform, rath-er than defending a rational, negotiated regime that gives Northerners a greater say in the scale and pace of resource development that protects the environ-ment and benefits communities.

Before devoting any further resources to the im-plementation of a NWT Surface Rights Board, the federal government must fully implement the provi-sions of the Mackenzie Valley Resource Management Act and respond in a meaningful way to the 2005 and 2010 NWT Environmental Audits.

◉◉◉

Types of surface access and financial security

Although the bill does not spell out what type of access may be contemplated through access orders issued by the NWT Surface Rights Board, there is concern that this may be interpreted in a way that always leads to surface access by means of roads (see s. 50(3) “a suitable route” and s. 69 where access or-der on non-designated lands must cover transporta-tion of minerals). Once road access is provided, it is difficult, if not impossible, to prevent other users from accessing the infrastructure, often resulting in permanent damage to wildlife and/or habitat, or other unanticipated consequences. It is recognized that air access may in some cases be more costly, but this may be a necessary trade-off to protect and pre-serve the rights of land users and surface rights own-ers. It is very important that access be interpreted broadly to include air-only access through the use of helicopters, fixed wing aircraft or lighter-than-air craft.

The Bill should explicitly allow the Board the ability to deny access if it is deemed too damaging to the environment, or to restrict access to air-only during certain time periods.

The Board is not allowed to ask for or require fi-nancial security to ensure compliance with its orders (see s. 56(2) and s. 71(2)). This is likely to present an enforcement problem, especially with regard to rec-lamation requirements that the Board may require (see s. 56(1)(a)(vi) and s. 71(1)(a)(vi)). This shortcom-ing should be rectified. The burden of proof and risks should be shifted to private developers rather than surface rights holders and the public.

◉◉◉


Consultation process for the Bill in the NWT

It is important to point out that there were never any public opportunities for comment on the draft-ing of Bill C-47. While Aboriginal governments were afforded some opportunities to review and comment on the Bill, industry had privileged access and was directly involved in the drafting. Non-gov-ernmental organizations, municipal governments and other economic sectors were neither informed of nor invited to any of the consultation sessions, nor were they sent any information about the Bill.3

On 24 January 2012, some members of the federal Standing Committee on Aboriginal Affairs met in Yellowknife to hear presentations on the Bill. Originally, the meeting was intended to be held be-hind closed doors; however, following media scruti-ny, the meeting was opened to the public. It was a poorly organized meeting with no agenda provided to presenters or the public. Alternatives North, a Yellowknife-based social justice coalition, submitted a written critique of the Bill and asked for an oppor-tunity to present to the Committee but was refused initially. On the morning of the meeting, we were notified that there was space available.

Those organizations appearing before the Com-mittee members were as follows, with a summary of the position:

• Gwich’in Tribal Council — “The approach chosen by the federal government on the collection of bills it is presently promoting and working on, including Bill C-47, has been heavy handed, needlessly rushed and largely inconsiderate of Aboriginal interests, views and opinions.”;• NWT Chamber of Commerce, NWT Chamber of Mines — No amendments proposed, strong support for the Bill to improve the investment climate for the NWT;• Government of the NWT — No amendments pro-posed, strong support for the Bill to improve the in-vestment climate for the NWT;• Katlodeche First Nation and Alternatives North — No true consultation and accommodation of First Nation concerns. Bill is not needed, would further entrench free-entry system and is not consistent with co-management approach; and,• NWT Association of Municipalities and NWT Farmers Association — Bill should not apply within municipal boundaries, long-term land uses such as agriculture should receive greater consideration in land use disputes.

It is notable that all of the legislative amend-ments proposed by the opposition parties reflecting the positions of Northern Aboriginal organizations

and civil society were rejected and voted down by the Conservative majority on the Committee at the clause-by-clause review held on 7 and 12 February 2013. Seven specific amendments were proposed by the NDP to the NWT Surface Rights Board Act to restrict the jurisdiction of the Board on municipal lands, allow the Board to deny access, specifically authorize the Board to grant access by air only, and to require financial security. The Liberals proposed adding a clause that would require a five-year review of the Act. All opposition amendments were defeat-ed or ruled inadmissible.4 The only formality left is Royal Assent.

Dismantling regulatory protection of Indige-nous peoples and the environment is a widely prac-ticed approach by multi-nationals in the developing world and is now being used in Northern Canada to shift power back to Ottawa and to the private sector. Under the guise of land claims implementation, the Harper government is strengthening the position of the private sector for unrestrained resource develop-ment. Rather than a co-management model, a com-mand-control approach would see power central-ized in the Minister’s office through appointments to a Board that is obligated to side with developers in providing access, limits public participation and discriminates against those that have not bought into the land claims process. Welcome to Canada’s new vision for the North. ◉

Kevin O’Relly is a member of Alternatives North, a social justice coalition based in Yellowknife, Northwest Territories.

Endnotes1. See Northwest Territories and Nunavut Mining Regulations s. 70-72 where a dispute resolution process is already outlined for entry on to occupied lands to prospect and locate mineral claims, Canada Oil and Gas Operations Act s. 5.01(2)(b) where arbitration of any dis-pute with a surface rights holder is required, and Gwich’in Land Claims Agreement s. 6.2.1(b)(ii), Sahtu Dene-Metis Land Claims Agreement s. 6.2.1(b)(ii), Tlicho Agreement s. 6.5, Inuvialuit Final Agreement s. 18) where dispute over surface rights and access are to be handled through arbitration panels or processes. 2. See testimony of Camille Vezina at AANO Standing Committee Meeting #52, 3 December 2012, http://www.parl.gc.ca/HousePublications/Publication.Ses=1&Do-cId=5909571&File=0#Int-7829308.3. See the Aboriginal Affairs and Northern Develop-ment Canada webpage at http://www.aadnc-aandc.gc.ca/eng/1357829593067/1357829623035 for details on its consul-tation process around Bill C-47. At the Yellowknife meeting of some members of the Standing Committee on Aboriginal and Northern Affairs, the NWT Association of Communities, NWT Farmer’s Association and Alternatives North clearly stated that they were never informed or invited to comment at any point dur-ing the so-called consultation process.4. See AANO Standing Committee #60, 12 February 2013. See http://www.parl.gc.ca/HousePublications/Publication.Lan-guage=E&Mode=1&Parl=41&Ses=1 for further details.

IGLOOLIK

February 2013.

Phot

o cr

edit:

Nor

ther

n Pu

blic

Affa

irs

IDLE NO MORE

Idle No More demonstration, Yellowknife, Northwest Territories, December 2012. Photo by Amos Scott.

can modern treaties be saved? - northern public affairs

Documents