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The search for appropriate dispute resolution mechanisms to resolve aboriginal land claims : empowerment… Montminy, Joëlle 1996

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THE SEARCHFOR APPROPRIATE DISPUTE RESOLUTIONMECHANISMS TO RESOLVE ABORIGINAL LAND CLAIMS:EMPOWERMENTAND RECOGNITIONbyJOELLE MONTMINYLL.B., Université Lava!, 1992A THESIS SUBMITTED iN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF GRADUATE STUDIES(Facu!ty of Law)We accept this thesis as conformingto the required standardTHE UNWERSITY OF BRITISH COLUMBIAAugust 1996© Joë!!e Montminy, 1996In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)__________________________of________The University of British ColumbiaVancouver, CanadaDate /5/(2)88)IIAbstractDifferent dispute resolution mechanisms, including treaties, litigation, negotiation and, to a lesser extent,mediation and arbitration, have been employed to resolve land disputes in Canada over the centuries. Since 1973,the federal government has unilaterally developed and reviewed land claims policies which favour negotiation toresolve land claims between governments and First Nations, Further, two regional institutions were created inOntario and British Columbia to facilitate the resolution of these complex claims. Various processes have also beenused to resolve similar claims in New Zealand and Australia.The problems associated with the present land claims processes in Canada have been discussed for more thantwenty years. The purpose of this thesis is to analyze the appropriateness of the various dispute resolutionprocesses which are, or could be, employed to resolve the land question in Canada. The search for disputeresolution mechanisms suitable to resolve land claims is undertaken in light of the two basic characteristics of therelationship of the parties to these disputes: the cultural differences, and the imbalance of power between theparties. The first chapter of my thesis examines the history of land claims policies and processes in Canada,discusses the historical relationship between Aboriginal peoples and governments, and explores the mainassumptions, premises, values and beliefs held by the parties involved in Aboriginal disputes, and the dynamics oftheir relationship. The following three chapters discuss specific dispute resolution processes which have beenemployed to resolve the land question in Canada. At the end of each of these chapters, suggestions are made toimprove these various processes. Chapter Two analyzes the advantages and disadvantages of litigation in thecontext of Aboriginal land cases. Chapter Three examines the process of negotiation, with a focus on the federalgovernment’s policies on land claims. Chapter Four discusses the processes of mediation and arbitration, andconsiders the appropriateness of these mechanisms to resolve land claims in Canada. Chapter Five provides acomparative look at three institutions which have been created to resolve Aboriginal claims in New Zealand,Australia and Canada: the Waitangi Tribunal of New Zealand; the National Native Title Tribunal of Australia; andthe British Columbia Treaty Commission. Finally, Chapter Six identifies the essential elements which must bepresent for dispute resolution mechanisms to be successful in the Aboriginal land claims context and integrates111these basic principles into a general model of dispute resolution for Canada.In the course of my research, I have examined literature dealing with alternative dispute resolution (ADR), theresolution of Aboriginal claims, and on Aboriginal law generally. Throughout this thesis, I have used differentmethods of research and analysis. The critical approach is used to question the self-professed legitimacy andfairness of some dispute resolution processes, as well as to examine the theoretical underpinnings of variousprocesses for cultural biases. The comparative method is helpful in analyzing different institutions that have beencreated in Australia, New Zealand and British Columbia to resolve Aboriginal claims. Finally, considering thatthe field of dispute resolution is informed by a wide variety of disciplines, the interdisciplinary approach is used topresent different propositions concerning which dispute resolution mechanisms are the most appropriate to resolveAboriginal land claims based on anthropological, historical, sociological and political variables. One of thedifficulties in trying to find appropriate dispute resolution mechanisms to deal with Aboriginal land claims is toaccommodate the diversity of the approximately 633 First Nations in Canada. Another difficulty relates to the factthat most of the ADR literature rarely addresses the issue of cultural differences.This thesis concludes that the various dispute resolution mechanisms studied have both advantages anddisadvantages for resolving the land question in Canada. I suggest that each mechanism has a role to play in theoverall process of resolving Aboriginal land claims as long as it accommodates the cultural diversity and ensuresthat all concerned have a voice in designing the process(es) employed to resolve land disputes. This thesis alsorecommends the creation of an independent land claims body which would provide the benefits of third-partyintervention while avoiding the deficiencies of the present judicial system. Objectives would be to reduce costs,expedite procedures, permit flexibility in the handling of polycentric problems, maximize the involvement of theparties in the process and outcome, and facilitate the production of a settlement which contributes to futureharmonious relationships between Aboriginal and non-Aboriginal society. The most important element remainsthat discussions about possible changes to the existing processes should occur between governments in partnershipwith the First Nations of Canada, and in consultation with non-Aboriginal interests.ivTABLE OF CONTENTSAbstract iiTable of Contents ivINTRODUCTION 1CHAPTER ONE RELATIONSHIP BETWEEN ABORIGINAL ANDEURO-CANADIAN SOCIETYPart I Historical Background 10A. The Early Period 101. The Royal Proclamation of 1763 102. Treaties 113. Confederation 134. First Nations Organization 15B. Post World War II 161. White Paper of 1969 172. Calder Decision in 1973 193. Land Claims Policies 214. Constitution Act,]982 235. Revision of Land Claims Policies 236. Oka Crisis in 1990 257. Revision of Land Claims Policies and Establishmentof Land Claims Commissions 26Part U Aboriginal and Euro-Canadian Ideologies 27A. Western-Liberal Ideology 28B. Modern Relationship 29Part III Dynamic between Parties to the Land Claims Disputes 30A. Governments’ Dilemma 311. The Role of Ideology 312. Sensitive Political Issues 323. Public Opinion 324. Personalities of Policy-Makers 335. Political Priorities 346. Incentive 347. Complexity of Governments 357.1 Federal Department of Indian Affairsand Northern Development 357.2 Provincial and Territorial Governments 38B. First Nations of Canada 39Conclusion 40VCHAPTER TWO LITIGATIONPart I Theories of Adjudication 44A. Definition 44B. Limitations of Adjudication 441. Polycentric Problems 442. Relationship Between the Parties 44Part II Adjudication in the Context of Aboriginal Land Claims 46A. Limitations of Litigation 471. Cultural Framework of the Canadian Courts 471.1 Colonial Sovereignty 471.2 Judicial Ethnocentrism and Bias 492. Procedural and Substantive Issues 532.1 Nature of the Claims 542.2 Jurisdiction, Procedure and Remedies 542.3 Aboriginal Participation 572.4 Burden of Proof and Evidence 582.5 Costs and Delays 612.6 Lack of Control and Compliance 622.7 Injunction 63B. Benefits of Litigation 651. Strategic Advantages 651.1 Binding Precedents 651.2 Changes in Government’s Land Claims Policies 661.3 Impetus for Negotiation 662. Public Sphere 682.1 Public Opinion 682.2 International Discourse 68Part Ill Appropriateness of Litigation 69A. Cultural Relativism 69B. Combining Litigation and ADR Mechanisms 71C. Improving the Role of the Courts in the Contextof Aboriginal Land Claims 751. Fundamental Legal Issues 752. Implementation 75Conclusion 76viCHAPTER ifi NEGOTIATIONPart I Characteristics and Theories of Negotiation 79A. Theories of Negotiation 791. Definition 792. Models of Negotiation 792.1 Competitive Strategy 802.2 Cooperative Strategy 812.3 Integrative Strategy 823. The Choice of a Negotiation Strategy 83B. Application to Aboriginal Land Claims 84Part II Negotiation of Aboriginal Land Claims 86A. Structural Problems with Land Claims Negotiations 871. Symmetry of Power Between the Parties 872. Terminology 893. Land Claims Policies 894. Conflict of Interest 914.1 Acceptance of Claims 914.2 Funding Decisions 934.3 Lack of Appeal Mechanisms 945. Interim Measures Agreements 956. Timelines 957. Impasse 96B. Problems in Substantive Negotiations 971. Compromise 972. Premises of Negotiation 982.1 Certainty 982.2 Flexibility 1003. Lack of Authority 1014. Lack of Trust 1015. Incentive to Negotiate 102C. Cultural Differences 1041. Different Worldviews 1041.1 Language 1061.2 Decision-Making 107Part m Strategies to Improve the Negotiation Process 109A. Lessons Learned from the Yukon Agreement 1091. Background 1102. Principles of the Process 1113. Lessons Learned 112B. Strategies to Improve the Existing Process 1121. Pre-Negotiation Strategies 1131.1 Redressing the Power Imbalance 1131.2 Land Claims Policies 114vii1.3 Conflict of Interest 1151.4 BuildingTrust 1152. Procedural Issues 1152.1 Flexibility 1152,2 Interest Based Negotiation 1162.3 Third-Party Interests 1162.4 Dispute Resolution Mechanisms to Break Impasses 1172.5 Interim Measures Agreements 1172.6 Implementation 1183. Cultural Understanding - Developing a Language ofPerspicuous Contrast 118Conclusion 119CHAPTER FOUR MEDIATION AND ARBITRATIONPart I Mediation 120A. Theories of Mediation 1201. Definition 1202. Types of Mediation 1213. Transformative Potential 1213.1 Empowerment 1223.2 Recognition 1224. Attitude of the Mediation Movement 123B. Mediation in the Context of Aboriginal Land Claims 1241. Advantages and Disadvantages 1242. Experiences with Mediation in Canada 126Part II Arbitration 130A. Theories of Arbitration 1301. Definition 1302. Types of Arbitration 1313. Mediation-Arbitration 131B. Arbitration in the Context of Aboriginal Land Claims 1321. Advantages and Disadvantages 1322. Experiences with Arbitration in Canada 132Part III Appropriateness of Mediation and Arbitration 134A. The Med-Arb Approach 134B. Approach and Procedures 135Conclusion 137vifiCHAPTER FIVE EXPERIENCE WITH THREE INSTITUTIONS: A COMPARAISONPart I The Australian Experience 139A. Background 1391. The Concept of Native Title 1392. Recognition of Aboriginal Title before Mabo 140B. The Native TitleAct, 1993 142C. The National Native Title Tribunal 1431. Functions 1431.1 Applications 1431.2 Inquiries 1451.3 Negotiation 1461.4 Federal Court 1472. Jurisdiction 1483. Composition 1484. Approach 1495. Procedural Concerns 151Part II The Waitangi Tribunal of New Zealand 152A. Historical Background 152B. Establishment of the Waitangi Tribunal 1541. Response to Pressure 1542. General Reaction 1543. Amendments in 1985 and 1988 155C. Overview of the Structure and Approach of the Waitangi Tribunal 1571. Powers 1572. Procedures 1582.1 Initial Style 1592.2 Recent Approach 1613. Formality 1614. Judicial Review 1625. Social Role- Reconciliation and Healing 162D. Credibility and Legitimacy: Different Views 164E. Current Difficulties 165F. Other Processes and Institutions 1661. Direct Negotiation 1662. Mediation 1673. Court System 1684. Interplay 168G. Legal Pluralism or Bicultural Approach 1691. Legal Pluralism 1691.1 Definition 1691.2 Application to the Waitangi Tribunal 170ix2. Bicultural Approach 172Part m The British Columbia Treaty Commission 174A. Background 174B. Establishment of the B.C. Claims Task Force 175C. Report of the B.C. Claims Task Force 1751. New Relationship 1762. Scope of Negotiations 1763. Characteristics of the Process 1764. Establishment of the B.C. Treaty Commission 177D. British Columbia Treaty Commission 1771. Pre-Negotiation Issues 1781.1 Question of Accessibility 1781.2 Organization of First Nations 1791.3 Funding for Negotiations 1791.4 Overlapping Territories 1802. Stages of Negotiation 1802.1 Readiness 1812.2 Monitoring 1823. Related Issues 1833.1 Cost of Settlements 1833.2 Non-Aboriginal Interests 1843.3 Interim Measures Agreements 1863.4 Public Education and Information 187E. Assessment 1881. Procedural Problems 1881.1 Openess 188i) Third-Party Representation 188ii) Public Education and Information 1901.2 Funding 1911.3 Management 1921.4 Overlapping Territories 1931.5 Interim Measures Agreements 1942. Commitment of the Parties 1953. Imbalance of Power 1984. Cultural Differences 199F. Potential Impact of Treaties and Land ClaimsSettlements in British Columbia 200Part IV Comparison of the Models in Australia, New Zelandand British Columbia 201A. Differences Between the Three Institutions 201B. Lessons Learned from Australia, New Zealand and British Columbia 2031. National Native Title Tribunal 2042. Waitangi Tribunal 205x3. British Columbia Treaty Commission 206Conclusion 207CHAPTER SIX CONCLUSIONS AND RECOMMENDATIONS: A MODEL FORCANADAA. Essential Elements for Dispute Resolution Processes 2101. Independence 2102. Aboriginal Participation in the Development ofLand Claims Policies 2103. Jointly Created Institution 2104. Bicultural Approach 2115. Third-Party Representation 213B. Creation of an Independent Land Claims Body 2141. Structure 2152. Political Reality 221Conclusion 224Bibliography 228(1In the final analysis it must be realized that the process ofIndian Claims settlement involves notjust the resolution ofa simple contracted dispute, but rather the very lives and being ofthepeople involved, Desire for settlement does not only concern the righting ofpast wrongs but aswell the establishment ofa reasonable basisfor the future ofa people...(Barber, 1973)INTRODUCTIONDifferent dispute resolution mechanisms are available to settle disputes. Litigation is increasingly beingseen by commentators, lawyers, judges, governments and the general public as only one way to do this.Alternatives to the court system have developed in response to a number of factors, including overcrowded courts and questions of the appropriateness of the judicial forum for some disputes. The threebasic alternative dispute resolution (ADR) mechanisms are negotiation, mediation, and arbitration. TheADR movement has also seen the development of hybrid dispute resolution processes which arecombinations of the three central ADR approaches. These include med-arb, mini-trial, recourse to rent-a-judge or private courts, use of an ombudsperson, and use of a fact-finding expert.In the context of Aboriginal claims, various dispute resolution mechanisms have been employed inCanada over the centuries. The earliest attempt to deal with Aboriginal claims was through the signing oftreaties. After the making of treaties, several other mechanisms were used to resolve outstandinggrievances and claims between First Nations and the Crown. These included litigation, negotiation, andto a lesser extent, mediation and arbitration. Experience with these various approaches has shown mixedresults in resolving the land disputes in Canada. Different processes have been used to resolve similarclaims in other countries. For instance, New Zealand created in 1975 a fact-finding tribunal to deal withMaori claims and Australia established in 1993 the National Native Title Tribunal which uses, amongother things, the mediation process to resolve the several land claims arising out of the Mabo decision.The purpose of this thesis is to analyze the appropriateness of various dispute resolution processes whichare, or could be, employed to resolve the land question in Canada. Aboriginal land grievances areparticularly interesting in that they reflect the complex nature of the relationship between First Nations2and Canadian governments. Thus, the search for dispute resolution mechanisms suitable to resolve theland question should be undertaken in light of the two basic characteristics of the relationship of theparties to these disputes: the cultural differences and the imbalance of power between the parties. Thesetwo elements are fundamental in the search for appropriate mechanisms to resolve land claims since it iswell-recognized in the dispute resolution literature that cross-cultural disputes are difficult to resolve,especially when one cultural group is more powerful than the other.In this thesis, the inequality of power between First Nations and Euro-Canadian governments will beconsidered to determine how this factor affects the various dispute resolution processes employed toresolve Aboriginal land claims. I will briefly explore the sources of the imbalance of power between FirstNations and Euro-Canadian governments and examine whether the various dispute resolutionmechanisms are structured to compensate for the power imbalance between the parties.The other major theme of this thesis relates to the cultural differences between Aboriginal and non-Aboriginal society. Culture has fundamental implications in the search for appropriate dispute resolutionmechanisms to resolve the land question since “culture shapes the way people (...) perceive, approach,process, and resolve conflict.” It is clear that the diverse cultural frameworks and differences betweenFirst Nations and Euro-Canadian governments manifest themselves in every dispute resolution forum.However, to date, it has been suggested that “[n]egotiation, mediation, arbitration, and even litigationmodels have not been fully developed to reflect the cross-cultural nature of their function when disputesare being addressed between First Nations and governments.”2The impact of cultural differences on thevarious dispute resolution processes will therefore be examined throughout this thesis.1 B. Lund, C. Morris and M. LeBaron Duryea, Conflict and Culture - Report ofthe Multiculturalism andDispute Resolution Project (Victoria, UVic Institute for Dispute Resolution, 1994) at 25.2 M.E. Turpel, “A Fair, Expeditious, and Fully Accountable Land Claims Process” (1995) 2 ICCP 61 at82.3This thesis does not argue the case for or against Aboriginal land rights. It recognizes that such rightsalready exist in Canada. Already in place are processes of land claims resolution such as the federal landclaims processes, the Indian Claims Commission, the British Columbia Treaty Commission and theIndian Commission of Ontario. This thesis proceeds rather on the widely accepted view that the existingland claims mechanisms are not working well and that the pace and conditions for the resolution of landclaims disputes are inadequate. Canada and First Nations have acknowledged that there exists a need for anew approach for resolving the numerous outstanding land claims. Therefore, what this thesis seeks to dois to examine various dispute resolution mechanisms in the context of Aboriginal land claims andcomment on the appropriateness of each of these processes. My interest centres on finding processes toachieve both the resolution of disputes and broad cross-cultural acceptance in society.General StructureIn order to understand the nature of the land question from the perspective of both First Nations andCanadian governments, the first chapter will briefly examine the history of land claims policies andprocesses in Canada, discuss the historical relationship between Aboriginal peoples and governments, andexplore the main assumptions, premises, values and beliefs held by the parties involved in Aboriginaldisputes, and the dynamics of their relationships. The following three chapters will examine specificdispute resolution processes which have been, or could be employed to resolve the land question inCanada. In Chapter Two, I will analyze the advantages and disadvantages of litigation in the context ofland claims cases. In Chapter Three, I will examine the process of negotiation with a focus on the federalgovernment’s policies on land claims. In Chapter Four, I will discuss both the processes of mediation andarbitration and consider the appropriateness of these mechanisms to resolve land claims in Canada. I willthen proceed with a comparative look at three institutions which have been created to resolve Aboriginalclaims in New Zealand, Australia and Canada. In Chapter Five, I will therefore compare the WaitangiTribunal of New Zealand, the National Native Title Tribunal of Australia and the British Columbia TreatyCommission. Finally, in Chapter Six, I will identii’ the essential elements which must be present fordispute resolution mechanisms to be successful in the Aboriginal land claims context and recommend4strategies to improve the existing processes in Canada. Essentially, these conditions will involveincreasing the bargaining power of Aboriginal groups vis-à-vis Canadian governments and validatingFirst Nations cultural frameworks, values, and priorities in the eyes of the Euro-Canadian society.This thesis will not recommend only one specific model of dispute resolution nor will it provide definitiveanswers to all the questions raised. My analysis will offer some general findings which might be useful togovernments and Aboriginal organizations who are working to design appropriate processes for resolvingland claims. At the end of each chapter, suggestions will be made to improve the various disputeresolution processes used to resolve land claims in order to address the particular characteristics ofdisputes between Aboriginal groups and governments. In Chapter Six, I will recommend the integrationof some fundamental principles into a general model to resolve the land disputes. Theserecommendations are only a foundation for further discussions since I believe that the search for a fairapproach to resolve land claims must be the product of a joint effort between Aboriginal peoples andgovermnents in consultation with non-Aboriginal interests.Scope of the AnalysisThe federal government divides land claims into three categories: specific claims, comprehensive claims,and “claims of another kind.” “Specific claims” involve grievances that Indian people might have thatrelate to the fulfillment of Indian treaties or to the administration of lands and other assets under theIndian Act3. “Comprehensive claims” are claims that are based on traditional native use and occupancy ofthe land. Such claims arise in those parts of Canada where native title has not been previously dealt withby treaty or other means - including the Yukon and Labrador, most of British Columbia, and parts ofQuebec and the Northwest Territories. They are comprehensive in their scope, including such elements asland title, specified hunting, fishing and trapping rights, financial compensation and other economic andsocial benefits. They have been equated to modem day treaties. Finally, “claims of another kind” areR.S.C. 1985, c. 1-5. Canadian Bar Association, Report of the Canadian Bar Association Committee onAboriginal Rights in Canada: An Agenda for Action, (Ottawa, CBA Communications, August 1988) at53-54. [hereinafter An Agendafor Action]5claims based on traditional use and occupancy by First Nations that have entered into treaties beforeConfederation where the terms of the treaties do not deal explicitly with land.4For years, thç defimtions and the distinction between different types of claim have been severely criticizedas being “artificial”, “arbitrary” and “inadequate”.5 In the last federal election, the platform of the LiberalParty of Canada, Creating Opportunity,6committed the party to eliminating the distinction betweenspecific and comprehensive land claims. It stated that “[i]nstead of separate specific and comprehensiveclaims, we propose a general policy encompassing all claims.”7Although the focus of my thesis will be mainly on the resolution of comprehensive claims, my analysis isnot without significance for specific claims. In fact, most of the issues involved in the resolution ofcomprehensive claims are applicable to other types of disputes involving Aboriginal peoples andgovernments and extensive references will be made throughout this thesis to mechanisms used to resolvespecific claims both in Canada and in other countries.Research MethodologyIn the course of my research, I have examined the literature dealing with alternative dispute resolution(ADR), the resolution of Aboriginal claims, and on Aboriginal law generally. Throughout this thesis, Iused different methods of research and analysis. The critical approach is used to question the self-professed legitimacy and fairness of some dispute resolution processes as well as to examine thetheoretical underpinnings of various processes for cultural biases. The comparative method is helpful inanalyzing different institutions that have been created in Australia, New Zealand and British Columbia toTurpel, supra note 2, at 67.Assembly of First Nations, AFN’s Critique ofFederal Government Land Claims Policies (Ottawa: AFN,August 21, 1990); Six Nations Council, Outstanding Financial and Land Issues (Ohsweken, Ontario: SixNations Land Claims Research Office, February 1996) at 2; Turpel, supra note 2, at 67.6 Liberal Party of Canada, Creating Opportunity: The Liberal Plan for Canada [Red Book] (Ottawa,1993) [hereinafter Creating Opportunity] and Liberal Party of Canada, The Aboriginal Peoples of Canada(Ottawa, September 1993) [hereinafter Aboriginal Peoples].7Aboriginal Peoples, supra note 6, at 12.6resolve Aboriginal claims. Finally, considering that the field of dispute resolution is informed by a widevariety of disciplines, the interdisciplinary approach is used in my thesis to present different propositionsregarding which dispute resolution mechanisms are the most appropriate to resolve Aboriginal landclaims based on anthropological, historical, sociological and political variables.Problems with Topic and Methods1. Diversity of First Nations in CanadaOne of the difficulties in trying to find appropriate dispute resolution mechanisms to deal with Aboriginalland claims is to accommodate the diversity of Aboriginal peoples in Canada. There are approximately633 First Nations in Canada. These First Nations are from different regions, have different interests,engage in different activities, have different beliefs and values, and live in different political contexts. Notonly is there regional diversity, but there are also significant differences between the Aboriginal groupswithin a region.8 These various groups have advanced land claims which focus on different priorities,thus reflecting a diversity of cultures, histories, and geographies. Moreover, some land claims overlap andraise sensitive inter-Aboriginal issues of territorial boundaries and rights.9 This diversity of First Nationsin Canada makes it more difficult to deal with Aboriginal issues in general and renders the search forappropriate dispute resolution mechanisms to resolve Aboriginal claims much more problematic than incountries such as New Zealand where there is only one indigenous group. Thus, in proposing changes tothe actual land process, one must be careful to avoid recommending a rigid policy that precludes adiversity in settlement agreements depending on the Aboriginal group and its geographical location. It isimportant to address this diversity to ensure that the process is both fair and responsive to thecircumstances of all First Nations in Canada.2. Regional Initiatives8 Canada, Report of the Task Force to Review Comprehensive Claims Policy, Living Treaties: LastingAgreements (Ottawa: Queen’s Printer, December 1985) at 47. [hereinafter Living Treaties: LastingAgreements]Turpel, supra note 2, at 64.7Another difficulty with the study of land claims in Canada is the growing regionalization of the process.The creation of different land claims mechanisms in the provinces of Ontario and British Columbia is asignificant innovation and may, to some extent, be a sign of the failure of the federal land claimsprocesses.’° The search for a land claims model at the national level must therefore not only acknowledgethe existence of these regional initiatives, but the national approach should be informed by theirexperience and respect their mandate. The institutions in Ontario and British Columbia will be discussedas part of this thesis.3. Combining Literature from Different Fields of StudyOne of the major difficulties encountered in my research for appropriate dispute resolution mechanisms toresolve Aboriginal land claims relates to the fact that the literature dealing with the resolution ofAboriginal claims has not fully integrated ADR theories, nor does the literature on ADR apply its theoriesor use examples to fit the Aboriginal claims context.’ These two fields of study have been generallyresearched separately. However, recent initiatives tend to demonstrate that academics, First Nationleaders, lawyers and governments have finally come to realize that appropriate dispute resolutionprocesses can aid substantive changes in the resolution of the land question by providing a fair context toassess these difficult questions.’2One example of the difficulty in applying ADR literature to the Aboriginal claims arena relates to the factthat most of the ADR literature does not address the issue of cultural differences. It appears that mostcommentators discuss ADR theories by assuming that disputing parties are all members of the same‘°Ibid, at 64-65.“NOTE: The Aboriginal literature has primarily focused on discussions regarding the scope ofAboriginal rights with no real analysis of the various processes to achieve a resolution of these criticalquestions.12 See for instance, Indian Claims Commission, “Special Issue on Land Claims Reform” (1995) 2 ICCP.UVic Institute for Dispute Resolution, “Making Peace and Sharing Power: A National Gathering onAboriginal Peoples & Dispute Resolution” (Victoria, B.C.: April 30 - May 3, 1996); Indian Commissionof Ontario, Land Claims in Canada: Beyond the Rhetoric - A Debate About the Critical Issues (NationalConference, Toronto, June 26-27th, 1996).8culture, usually “western” culture. They rarely mention the fact that ADR strategies and techniques areculturally relative and that what is considered appropriate behaviour by one culture may not be consideredappropriate by another.’3 A study done in Victoria between 1990 and 1994 by the UVic Institute forDispute Resolution, through its Multiculturalism and Dispute Resolution Project, noted that before the1980s, most work in the conflict resolution field did not address cultural issues.’4 According to MichelleLeBaron Duryea, this is probably the result of a combination of factors:First, there are methodological problems with researching interpersonal conflict and culture.Both tenns are subject to ambiguity and a variety of interpretations. Both are multidimensionalphenomena and difficult to examine. As such, there are the usual difficulties inherent in socialscience research including the isolation of variables, the observer effect, among others. Second,dispute management has only recently been acknowledged as having cultural components.’5Thus, the ADR literature is not always applicable to the Aboriginal claims context, since it does notadequately deal with cultural differences. However, it must be noted that this is slowly changing.’6Recently, the ADR field has seen developing an increasing body of literature.which underscores the integral role of culture in conflict resolution, the intertwined andinteractive relationship between conflict and culture, and the fact that all conflict involvesculture, not just intercultural conflict. This interdisciplinary literature comes from the fields ofeducation, anthropology, psychology, sociology, communication, management and law. Theliterature indicates only a beginning understanding of the relationship between conflict andculture. There is little theory specifically relating to conflict and culture. Even less literature hasclear cross-cultural applications.’7TerminologySome preliminary definitions of the various terms used throughout this thesis to identify indigenouspeople of Canada are necessary. I have chosen to use principally the term “Aboriginal” which in Canada‘ A. McCallum, “Dispute Resolution Mechanisms in the Resolution of Comprehensive Land Claims:Power Imbalance between Aboriginal Claimants and Governments” (Draft paper prepared for the RoyalCommission on Aboriginal Peoples, May 1993) at 5-6.“ M. LeBaron Duryea, Conflict and Culture- A Literature Review and Bibliography (Victoria: UVicInstitute for Dispute Resolution, 1992) at 20.‘ Ibid,at3l.6 NOTE: However, Michelle LeBaron Duryea has done extensive research in the field of conflict andculture, focusing on implicit cultural assumptions in dispute resolution practice in North America.‘ Lund & aL, supra note 1, at 4. NOTE: This new literature has pointed out that the main over-archingprinciples that apply in conflict resolution across cultures are the universal need for respect, caring, andprocedural fairness.9applies to status and non-status Indians, Inuit and Metis. “Aboriginal” is also the term used in theConstitution Act, 1982. I also use the term “First Nations” which refers to the indigenous peoples ofCanada, who have historically been described by Europeans as Indians. “First Nations” is the termpreferred by many Indian nations. The term “Indian” is used to refer to Indians only in the context of theIndian Act, which distinguish between Indians who have status and excludes non-status Indians, Metisand Inuit. I use the term “indigenous peoples” when referring to the international level, given that it isnow the accepted usage at the United Nations. The term “native” is also occasionally used to describeAboriginal people of Canada.10CHAPTER ONE RELATIONSHIP BETWEEN ABORIGINAL AND EURO-CANADIANSOCIETYPart I Historical BackgroundBefore examining the various dispute resolution processes which are employed or could be employed toresolve Aboriginal land claims in Canada, it is first necessary to briefly examine the historical relationshipbetween Aboriginal and non-Aboriginal societies to understand how this history has contributed tocreating the present political and legal reality with respect to Aboriginal claims.A. The Early Period1. The Royal Proclamation of 1763Early in the settlement of Canada, the British Crown forecast the tensions that would arise between FirstNations, who had long lived on the land then being settled, and the newcomers from Europe. In order toprotect Aboriginal people from settlers eager to obtain vast amounts of land in what would becomeCanada, and to establish peace among all peoples, England passed the Royal Proclamation of] 763.18The Proclamation declared, among other things:that the several Nations or Tribes of Indians, with whom We are connected, and who live underOur Protection, should not be molested or disturbed in the Possession of such Parts of ourDominion and Territories as, not having been ceded to, or purchased by Us, are reserved to them,or any of them, as their Hunting Grounds.The Proclamation affirmed that territories beyond the boundaries of the colonies were “Indian lands” andcould not be settled on, and it dictated that only the Crown could acquire land from Aboriginal peoplewithin Canadian territories:it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under ourSovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands andTerritories not included within the Limits of Our Said New Govermuents, or within the Limits ofthe Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying tothe Westward of the Sources of the Rivers which fall into the Sea from the West and North Westas aforesaid.’918 The Royal Proclamation of 1763, R.S.C., 1985, Appendix II, No.1.19 Quoted in D.W. Elliot, eds., Law and Aboriginal Peoples of Canada, 2d ed., Canadian Legal StudiesSeries (Ottawa, Ont.: Captus Press, 1992) at 29-30. NOTE: The vagueness of this description of11The spirit of the Proclamation was followed, to some degree, in some of the early treaties that were signedbetween the Crown and the First Nations of Canada.2°Further, the Royal Proclamation of] 763, as partof the Constitution of Canada, is included in a schedule to the Constitution Act, 1982. The Proclamationwas referred to by Mr. Justice Dickson of the Supreme Court of Canada in Guerin v. The Queen as thesource of a fiduciary obligation owed by the Crown to Indians.2’ Some aspects of the Royal Proclamationcan also be found in the surrender provisions of the Indian Act.222. TreatiesIn the early 1700s, the Crown started to secure title to the land by signing a number of treaties withAboriginal groups who ceded title in exchange for land reserves and other rights. Most of the treatiessigned in that early period in the Maritime provinces and in Quebec were “peace and friendship” treaties,more concerned with military alliance than land. These treaties, nonetheless, confirmed the right of theFirst Nations to hunt and fish at liberty as they had been accustomed to doing.23 More than 30 differenttreaties covering the Great Lakes basin were entered into between 1763 and 1850. The prairies weresettled through the “numbered” treaties, signed between 1870 and 1921. The adhesion to Treaty 9,covering most of northern Ontario, was entered into in 1929.24territorial limits is the basis for the British Columbia government claim that the Royal Proclamation doesnot apply to this province, west of the Rocky Mountains.20Inthan Claim Commission, “A Fair and Equitable Process: A Discussion Paper on Land Claim Reform”(1995) 2 ICCP 3 at 7; A. Durocher, “Land Claims Reform” (1995) 2 ICCP 25 at 28-29; P. Kuichyski,Unjust Relations: Aboriginal Rights in Canadian Courts (Toronto: Oxford University Press, 1994) at 19.21 [1985] 1 C.N.L.R. 120 (S.C.C.). NOTE: According to Mr. Justice Dickson, this obligation wasassumed by the Crown in 1763 when it began to interpose itself between aboriginals and prospectivepurchasers of their land by accepting a surrender of title from the Indians and then by acting on theirbehalf. See Living Treaties: Lasting Agreements, supra note 8, at 7.22 R.S.C. 1985, c.32, ss. 37-41. NOTE: The Supreme Court of Canada has confirmed that the surrenderprovisions have their origins in the Royal Proclamation. See Easterbook v. R. [19311 S.C.R. 210 at 214-15.23An Agendafor Action, supra note 3, at 1; Living Treaties: Lasting Agreements, supra note 8, at 2.24 ICC, supra note 20, at 7; Living Treaties: Lasting Agreements, supra note 8, at 2-3.12In B.C., however, relatively few treaties were signed. On Vancouver Island, the British Crown gavetrading rights to the Hudson’s Bay Company, and placed it in charge of immigration and settlement.25James Douglas, who became governor of the Vancouver Island colony in 1851, was instructed to purchaseFirst Nation lands. Between 1850 and 1854 Douglas made fourteen purchases on the Island covering anarea of about 358 square miles - about 3 percent of Vancouver Island.26 Douglas recognized pre-existingAboriginal land ownership as well as Aboriginal rights to fish and to hunt on unoccupied treaty lands.27When the mainland was made a colony in 1858, Douglas was encouraged by the Colonial Office tocontinue purchasing land, but the Colonial Office refused to offer funds, stating that the money should beraised locally.28 In a letter to Douglas dated October 19, 1861, the Secretary of State for the Colonieswrote: “I am fully sensible of the great importance of purchasing without loss of time the native title to thesoil of Vancouver Island; but the acquisition of the title is a purely colonial interest, and the Legislaturemust not entertain any expectation that the British taxpayer will be burthened to supply the funds ,29However, unable to raise sufficient funds locally, Douglas made no further purchases.3°Douglas thensought to create a future for First Nations “in which they would be secure, prosperous, equal, andassimilated.”3’Small reserves started to be created as protection from aggressive land acquisition bysettlers32 and a policy of assimilation guided the new colony.33 Unfortunately, not everyone in the new25 British Columbia Task Force on Land Claims, The Report of the B.C. Claims Task Force (Vancouver:June 28, 1991) at 6 [hereinafter B. C. Task Force]; Living Treaties: Lasting Agreements, supra note 8, at4-5.26RD Francis et al., Origins: Canadian History to Confederation, (Toronto: Holt, Rinehart and Winstonof Canada, 1992) at 393; E. Stokes, “The Land Claims of First Nations in British Columbia” (1993) 23VUWLR 171, at 173.27 P. Tennant, “The Indian Land Question in B.C.: A Chronology” in Aboriginal Law- 1993 (Ottawa:Continuing Legal Education, 1993) 1.1 at R. Exell, “History of Indian Land Claims in British Columbia” (1990) 48 The Advocate 866, at 867.29 British Columbia, Papers Connected With the Indian Land Question, 1 850-1875 (Victoria:Government Printer, 1875) at 20.° NOTE: Apart from a portion of the Peace River which is included in Treaty 8 negotiated by the federalgovernment in 1899, these 14 treaties signed by governor Douglas are the only treaties that exist in B.C.‘ P. Tennant, “A Historical Perspective of Aboriginal Land Claims” in The Economic Bridge to SelfReliance Aboriginal Land Claims (Native Investment & Trade Association, Conference held on May 12-14, 1990) at 1.32 NOTE: By the time the colony of B.C. entered Confederation in 1871, 120 Indian reserves had beenestablished throughout the colony. These reserves were considerably smaller that those elsewhere in the13colony on the mainland agreed with Governor Douglas’ recognition of Aboriginal title. As a result, in theyears following Douglas’s retirement in 1864, many of his policies were reversed. Joseph Trutch assumedcontrol of Aboriginal policy and in contrast to Douglas, regarded First Nation people as “inferiorsavages”.34 The legislature of the united colony removed Aboriginal people’s right to acquire Crown landand affirmed that Aboriginal title had never been acknowledged. No compensation was offered toAboriginal people for the loss of traditional lands and resources.353. ConfederationSection 9 1(24) of the British North America Act gave the federal government jurisdiction over “Indiansand Lands reserved for Indians”. The basis upon which Canada would fuffill this role soon became thesubject of many federal-provincial jurisdictional disagreements. These disputes are still at the heart ofmany difficulties currently experienced in resolving Aboriginal claims. One of these disputes wasbrought to the Judicial Committee of the Privy Council in Britain, and as a result of this case, theprovinces of Canada obtained control of all the lands within the boundaries that the Indians had ceded byway of treaty to the federal Crown, or to the British Crown before 1867.36Under federal control, First Nations became subjected to the constraints of the Indian Act, enacted in1868. It has been suggested that the Indian Act “...was a mandate for government administrators tocountry. Today, of 2,323 Indian reserves throughout Canada, 1,634 of them are located in B.C. See M.H.Smith, Our Home or Native Land? What Governments ‘Aboriginal Policy is doing to Canada (Victoria:Crown Western, 1995) at 78; British Columbia, Ministry of Aboriginal Affairs, The Aboriginal PeoplesofBritish Columbia: A Profile (Victoria:, 1992) 1; F. Cassidy and N. Dale, After Native Claims? - TheImplications of Comprehensive Claims Settlements for Natural Resources in British Columbia(Lantzville, B.C.: Oolichan Books and The Institute for Research on Public Policy, 1988) at 6.33B. C. Task Force, supra note 25, at 7.Tennant (1993), supra note 27, at 1.1.01.B. C. Task Force, supra note 25, at 7.36 St. Catherine ‘s Milling and Lumber Company v. R. (1889) 14 AC 46 (J.C.P.C.). NOTE: This casewas the most important Indian land rights decision in Canada for many decades, even though no Indianswere represented before the Court. ICC (1995), supra note 20, at 8.14control the lives of Indians on reserves.”37 The impact for First Nations of being subjected to the IndianAct was explained as follow:The “band” system of administration was imposed on First Nations and bands were made subjectto detailed supervision by federal officials. The governments outlawed the great, traditionalpotlatches which were the heart of the First Nations’ social and political system. Throughout theprovince, the authorities removed children from their families and communities, and placed themin residential schools. Separated from their families and their own society, forbidden to speaktheir own language, the children were to be educated as non-aboriginals. Inevitably, thepersistent and growing exclusion from traditional lands, seas, and resources led to an increasingreliance upon federal support programs. These actions began a long decline into a state ofdependency.38During the 1880s and 1890s, some inter-governmental disputes relating to Aboriginal issues were directedto an Arbitration Board created to adjust financial accounts between Canada and Ontario, but withoutmuch success.39 During the same period, Aboriginal groups in the west part of the territoiy wereenjoining governments to continue negotiating treaties. These demands were reiterated over the followingdecades but remained unanswered.4°In B.C. where almost no treaty had been signed, the First Nations.remained adamant in their demands for recognition of aboriginal title and the making oftreaties. Just as persistently, the federal and provincial governments declined to respond to theaboriginal demands. While some non-aboriginal people supported aboriginal concerns, most ofthem, particularly at the political level, held the view that aboriginal title had never existed inB.C., or that it had been displaced by the activities of the new society and its legal system.4’In B.C., settlement pressure on agricultural land increased after the turn of the century. The federal andB.C. governments agreed in 1912 that a Royal Commission should re-examine the size of every reserve inthe province of B.C.42 The Commission sat continuously from 1913 to 1916 and visited all the tribes inthe province. Its report was published in four volumes in l916. The Report of the CommissionI. Ryan and B. Ominayak, “The Cultural Effects of Judicial Bias” in Sheilah L. Martin & Kathleen E.Mahoney, eds., Equality and Judicial Neufrailty (Toronto: Carswell, 1987) 346, at 347.38B. C. Task Force, supra note 25, at 9.Indian Commission of Ontario, Discussion Paper Regarding First Nation Land Claims (Toronto: ICO,September 24, 1990) at 7.40 Cassidy and Dale, supra note 32, at 6; See also B.C. Task Force, supra note 25, at 10.41 B. C. Task Force, supra note 25, at 11.42Teant (1993), supra note 27, at 1.1.03; R.C. Daniel, A History ofNative Claims Processes in Canada1867-19 79 (Report prepared for the Department of Indian Affairs and Northern Development, February,1980) at 43.Canada, Report of the Royal Commission on Indian Affairs for the Province of British Columbia(Ottawa: McKenna-McBride Commission, 1916).15recommended the enlargement of some reserves, but also advised that much valuable land be cut off fromothers.44 Disregarding both the Indian Act and the constant reassurances from the commissioners that thesize of reserves would not be changed without First Nations’ consent, the governments imposed landreductions unilaterally.454. First Nations OrganizationCourageous in their struggle to attain recognition of their right to the land, First Nations started toorganize themselves. In 1908, the Nisga’a Land Committee was formed in B.C. and in 1916, the firstinter-tribal First Nations organization, the Allied Indian Tribes of British Columbia, was founded.46 InJune 1926, the Allied Tribes had raised enough money to present a land claim and a petition toParliament.47 As a direct consequence of that petition, a Special Joint Committee of the Senate and Houseof Commons was convened on March 22, 1927, to hear evidence and to report.48 In its report, theCommittee dismissed the demands and declared that “the natives had not established any claim to thelands of British Columbia based on aboriginal or other title.”49 The same year, Parliament amended theIndian Act to make it illegal to raise or spend money to advance claims. The amendment stated that:141. Every person who, without the consent of the Superintendent General expressed inwriting, receives, obtains, solicits or requests from any Indian any payment or contribution forthe purpose of raising a fund or providing money for the prosecution of any claim which the tribeor band of Indians to which such Indian belongs, or of which he is a member, has or isrepresented to have for the recovery of any claim or money for the benefit of the said tribe orband, shall be guilty of an offense and liable upon summary conviction for each offense to apenalty not exceeding two hundred dollars and not less than fifty dollars or to imprisonment forany term not exceeding two months.5°‘‘ Stokes, supra note 26, at 183; Tennant (1993), supra note 27, at 1.1.03.“ B.C. Task Force, supra note 25, at 11; See also Daniel, supra note 42, at 46-47; Tennant, supra note27, at Cassidy and Dale, supra note 32, at 6; Tennant (1993), supra note 27, at 1.1.03.Daniel, supra note 42, at 49; Tennant (1993), supra note 27, at, supra note 42, at 50.Cassidy and Dale, supra note 32, at 6-7.° R.S.C. 1927. c.98, section 141, in Department of Indian and Northern Affairs, Consolidation of IndianLegislation, Vol. 2, at 301.16This amendment blocked Indian bands from effective political and court action in pursuit of their rightsuntil 1951 when Parliament repealed this provision of the Indian Act.5’In the period before World War II, the federal government did not adopt any clear policy for dealing withAboriginal claims. Aboriginal issues were simply not on the agenda of the government during thatperiod. As a result, depending on the people involved and on the nature and history of a claim,settlements were sought by negotiation, mediation, arbitration, litigation, and executive or legislative fiat.An historical review of that period has concluded that[w]hatever might be said about the relative merits ofvarious mechanisms for dealing with nativeclaims prior the World War II, one must conclude that, on the whole, they were not effective. Infact the peculiar nature of the relationship between Indian people and the federal governmentseems to have provided a fertile ground for creating claims and no mutually acceptablemechanisms for resolving them, with the possible exception of the treaties.528. Post World War 11After the Second World War, tribal councils and political Aboriginal organizations became very vocal andthe political activity in pursuit of the land claims re-emerged. Canada finally decided to address the“Indian problem” after over 100 years during which “ and policy directed towards Indians had beenbuilt upon the premise that Indians were a disappearing race, doomed to extinction as a result of diseaseand assimilation.”53 In 1946-48 and 1958-61, joint committees of the Senate and the House of Commonsrecommended the creation of an Indian Claims Commission, similar to the American Indian ClaimsCommission, with court-like powers and a mandate to hear and consider various classes of claims.Enabling legislation was introduced in the House of Common in December, 1963, then re-introduced inJune, 1965 after consultation with Aboriginal groups but both times the draft bills died on the orderpaper.54‘ An Agenda for Action, supra note 3, at 10; See also B.C. Task Force, supra note 25, at 11; See alsoDaniel, supra note 42, at 53; Tennant (1993), supra note 27, at 1.1.04; L. Mandell, “Creeping Out of theDark Ages... Slowly” in Aboriginal Law - 1993 (Ottawa: Continuing Legal Education, July 23 & 24,1993) at 2.4.09; Cassidy and Dale, supra note 32, at 7.supra note 42, at 215-216.ICC (1995), supra note 20, at 9.“ Ibid; An Agenda for Action, supra note 3, at 74. Daniel, supra note 42, at 133-137 and 143-153. L.Barber, “Indian Claims Mechanisms” (1973-1974) 38 Sask. Law Rev. 11 at 12; E. Colvin, Legal Process17Starting in the 1960s, commissions of inquiry were used in identifying Aboriginal interests and legalissues when conflicts developed in areas subject to Aboriginal claims. These commissions of inquiryinclude the Northern Natural Gas Pipelines, West Coast Oil Ports, Northern Development in Ontario,Metis Land Entitlements in Manitoba and Alberta.55During the same period in B.C., one attempt at negotiating a settlement was made by Arthur Laing, thenMinister of Indian Affairs. Minister Laing was showing some interest in discussing the land questionbecause of the threat of litigation. Before starting negotiations, he insisted on the condition that thevarious bands in B.C. united in one negotiating team. Given the Aboriginal diversity in B.C., this was anunrealistic demand and this attempt to negotiate Aboriginal title failed.56 In the late 1960s, the Nisga’awent to court, seeking a declaration that they had held Aboriginal title to their land prior to colonization,and that their title had never been extinguished.571. White Paper of 1969Tn 1969, the federal government proposed a fundamental change in the relationship between First Nationsand the Euro-Canadian society by submitting the Statement ofthe Government ofCanada on IndianPolicy.58 The govermnent’s White Paper essentially reiterated the government’s position that Aboriginaltitle claims were “too vague and undefined” to be dealt with and called for the abolition of treaty rightsand the termination of the “special status” of Canada’s Indians, suggesting that they should have “theand the Resolution ofIndian Claims, Studies in Aboriginal Rights No.3 (Saskatoon: University of Sask.Native Law Centre, 1981) at 11.AgendaforAction, supra note 3, at 74.56D Sanders, “Pre-Existing Rights: The Aboriginal Peoples of Canada: A Commentary” in Beaudoin andRatushny eds., The Canadian Charter ofRights and Freedoms, 2d ed. (Toronto: Carswell, 1989) 707 at714.57B.C. Task Force, supra note 25, at 12. Tennant (1993), supra note 27, at Canada, Statement ofthe Government ofCanada on Indian Policy (Ottawa: Queen’s Printer, 1969).18same rights and opportunities as other Canadians.”59 Many contend that this policy was in fact the finalsteps toward assimilation.60 According to Menno Boldt and 3. Anthony Long,• . .the White Paper blamed the economic and social stagnation of Indians and their condition ofdependency on the existing policy of internal colonialism. The White Paper proposed that theonly acceptable solution to the “Indian problem” was to integrate Indians fully and equally intoCanadian society. To achieve this objective, the White Paper recommended the repeal of theIndian Act, [and] the removal of special status for Indians.. •61The White Paper had a major effect in raising the political consciousness of First Nations and contributedin uniting Aboriginal groups across the country as never before.62 Aboriginal groups from everywhere inCanada, who were obviously not consulted in the development of this policy, condemned the White Paperwhich they perceived as being racist in its intent and potentially genocidal in its consequences.63TerryLusty, a Metis from Calgary, circulated a small pamphlet in many Aboriginal communities in Canadaentitled Red Paper vs. White Paper in which he stated:The Indian did not ask for an Indian Affairs Branch; they did not ask to be Federally controlled;they did not ask for racial segregation; nor did they ask for a pathetic and paternalisticadministration to govern them - so how can the Indian be the one to blame for his currentsituation?64The Trudeau government was embarrassed by the unexpected opposition from Aboriginal groups and, as aresult, started funding Aboriginal political organizations.65 The govermnent finally retracted the WhitePaper in 1970, although it is suggested that “...the legacy of suspicion and mistrust which they left in theirwake remains strong to this day.”66Cassidy and Dale, supra note 32, at 9; See also Daniel, supra note 42, at 153; Tennant (1993), supranote 27, at 1.1.05; ICC (1995), supra note 20, at 9.60 Mandell, supra note 51, at M. Boldt and J.A. Long, The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto:University of Toronto Press, 1985) 3 at 7.62Durocher supra note 20, at 31-32; ICC (1995), supra note 20, at 9.63 Boldt and Long, supra note 61, at 8; See also A. Fleras and J.L. Elliot, The Nation Within - Aboriginal-State Relations in Canada, the United States, and New Zealand (Toronto: Oxford Univ. Press, 1992) at43; S.W. Weaver, Making Canadian Indian Policy: The Hidden Agenda 1968-1970 (Toronto: Universityof Toronto Press, 1981); II. Cardinal, The Unjust Society (Edmonton: Hurtig, 1969).64 Terry Lusty, Red Paper vs. White Paper, (1970) Pamphlet at 1.65 NOTE: A system of provincial and federal organizations representing Indians, Inuit and Metis rapidlycame into existence. Sanders (1989), supra note 56, at 714.66 J.R. Ponting and R. Gibbins, Out of Irrelevance: A Socio-Political Introduction to Indian Affairs inCanada (Toronto: Butterworths, 1980) at 29; See also Boldt and Long, supra note 61, at 5; See also J.L.19As part of the White Paper, the federal government had accepted to recognize the validity of certainspecific claims where a “lawful obligation” existed. These claims were to be resolved with the assistanceof the new Office of Indian Claims Commissioner. Lloyd Barber was first appointed to the position onDecember 19, 1969.67 The Office of the Indian Claims Commissioner was established under the PublicInquiries Act to consult with Indian groups and to inquire into specific claims.68 The Commissioner’srole was not to deal with the merits of any claims but rather to consider appropriate methods of resolvingthese disputes.69 The concrete role played by Lloyd Barber appears to have been along the lines ofunstructured mediation as an aid to the negotiation process:The role of the Indians Claims Commission thus evolved into one characterized by a variety offunctions: chairman of negotiations, facilitator, mediator, middleman, ombudsman, prodder,sounding board. Sometimes specific questions required immediate resolution, but more often itwas a matter of the general framework within which on-going issues between the Indians ofCanada and the Govermnent could be identified and resolved.70Thus, the Commissioner acted as a mediator, helped to clarify issues, established structures and processesfor negotiation.7’However, many First Nation leaders criticized the role of the Commissioner partlybecause it was associated with the White Paper, but particularly because his mandate excluded substantiveconsideration of Aboriginal issues and his powers were too limited to put pressure on the parties.72 Theoffice of the Indian Claims Commissioner was discontinued in 1977.2. Calder Decision in 1973Tobias, “Protection, Civilisation, Assimilation; An Outline History of Canada’s Indian Policy” in J.R.Miller, ed., Sweet Promises: A Reader on Indian-White Relations in Canada (Toronto: University ofToronto Press, 1991) at 141.67 Appointed by Order in Council 1965-2404. Canada, Commissioner on Indian Claims, A ReportStatements and Submissions (Ottawa, Queen’s Printer, 1977) at 1. [hereinafter Commissioner]; Durocher,supra note 20, at 32.68 Indian Claims Commission, Indian Claims in Canada: An Jnfroductory Essay and Selected List ofLibrary Holdings (Ottawa: Indian Claims Commission, 1975) at 22.69 P.A. Cumming & N.H. Mickenberg, Native Rights in Canada, 2d ed, (Toronto: The Indian-EskimoAss. & General Publishing Co., 1972) at 263.70 Commissioner, supra note 67, at 2.71 Barber, supra note 54, at 12; Colvin, supra note 54, at 25-26.supra note 42, at 154; Colvin, supra note 54, at 26.20Tn 1973, the Supreme Court of Canada ruled in Calder v. Attorney General ofBritish Columbia73that theNisga’a had held Aboriginal title in pre-colonial times, but the judges were evenly divided on the questionof the continuing existence of that title.74 The then Prime Minister, P.E. Trudeau admitted that theNisga’a judgment had led him to modify his views on the question of Aboriginal rights. He remarked,“[p]erhaps you have more legal rights than we thought you had when we did the White Paper”.75According to Trudeau, the Calder case allowed him to reconsider the colonialist assumptions underlyinggovernment Aboriginal policy and to acknowledge the possibility of self-determination, Aboriginal andtreaty rights, and self-government as key organizing principles.76 Thus, the Calder decision altered theframework for arguing Aboriginal rights and provided significant bargaining leverage to Aboriginalgroups.The strong reaction of the Aboriginal groups to the 1969 White Paper, combined with the importantdecision of the Supreme Court of Canada in Calder in the early 1970s, forced the federal government torethink its approach with respect to Aboriginal land claims. In fact, the Calder decision had a decisiveeffect on the federal government for it showed that land claims could no longer be casually dismissed andthus influenced the government to agree to negotiate Aboriginal land claims. What followed over the next23 years was a complete reversal in the government’s attitude in relation to Aboriginal issues. In 1973,the govenunent started to issue various policy statements recognizing some categories of claims to beresolved through negotiations. This shift was reluctant, for the liberal government of Trudeau hadopposed a nationalism on the part of Indians. In fact, the policies under the Trudeau governmentpersistently reflected the attitude that special treatment was discriminatory treatment. Other factors alsocontributed to force the government to reconsider its approach in the early 1970s. These include thestrong influence of the public opinion which supported the resolution of Aboriginal claims, the precarioussituation of a minority government facing the opposition parties which were in favour of First Nations(1973) 34 D.L.R. (3d) 145 (S.C.C.)Elliot, supra note 19, at 48; Tennant (1993), supra note 27, at 1.1.05.Cassidy and Dale, supra note 32, at 9; See also Commissioner, supra note 67, at 12.76 T.S. Axworthy & P.E. Trudeau, Towards a Just Society: The Trudeau Years (Markham, Ont.: VikingPenguin, 1990).21claims, and a consciousness that the social and economic condition of the First Nation communitiesconflicted with Canadian ideas of human rights and national prestige.3. Land Claims PoliciesOn August 8, 1973, the federal government issued a policy statement recognizing claims based ontraditional use and occupation of the land, referred to as “comprehensive claims”. This policy called forthe “exchange of undefined aboriginal rights for concrete rights and benefits that would be guaranteed bysettlement legislation.”77 This “exchange” did not, however, imply an admission by the government thatthese “undefined” rights actually existed.78 The policy stressed that in exchange for these rights andbenefits, all Aboriginal rights and title were to be extinguished once and for all.79 With respect to theprocess of negotiation, it has been suggested that while this new policy “...confirmed the government’snewfound willingness to talk, it also demonstrated Ottawa’s determination to control the outcome of anynegotiations.”8°The federal government was indeed induced to adopt a preference for negotiatedsettlements as it probably realized that it would have more control of the process and outcome ofnegotiation than litigation.Tn July 1974, the federal government created the Office of Native Claims (ONC) as part of the Departmentof Indian and Northern Affairs to deal with the growing number of claims that were being received.8’ Theprocess established to deal with these claims was as follows: (1) a claim, backed by historical research,would be submitted to ONC for consideration; (2) the claim along with its supporting documentationwould be reviewed by ONC officials and an agreement on the facts would be reached between the twoparties; (3) the claim would be handed over to the Department of Justice, which would decide if a “lawfulobligation” existed. If a claim was deemed “valid”, the government would agree to enter into negotiationsLiving Treaties: Lasting Agreements, supra note 8, at 13.Agendafor Action, supra note 3, at 24.79Jbid.° A. Murray, And the Last Shall Be First: Native Policy in an Era ofCutbacks, (Toronto: NC Press Ltd,1991) at 45.8 Durocher, supra note 20, at 32. NOTE: More than 600 specific claims have been submitted to thefederal govermnent since 1973.22to fulfill its obligations. If not, the claim would be rejected, and the matter would end.82 The James Bayand the Mackenzie Valley disputes were handled by the ONC. The James Bay and Northern QuebecAgreement, the first Canadian land claims agreement, was signed in 1975 with almost 11,000 James BayCree and Inuit of Northern Quebec.In 1975, a Joint National Indian Brotherhood/Cabinet Committee was formed to study, among otherthings, whether there should be a national approach to the resolution of land claims. The committee wasin operation until January 1979.83 From this committee, an agreement was reached to create asubcommittee called the Canadian Indian Rights Commission with a mandate to discuss the principlesand parameters of mechanisms to make settlements. However, the only process which was set up was theIndian Commission of Ontario (ICO) in March 1978. The ICO is a neutral and independent TripartiteCouncil with a mandate to provide a forum for the negotiation of specific claims and to deal withquestions relating to Aboriginal self-government in Ontario.During the same period, one notable event which occurred was the beginning of negotiations in 1976 withthe Nisga’a Tribal Council and the federal government.84 Moreover, in 1979, the federal governmentasked Gerard V. LaForest to review the land claims process and to prepare a report for the ONC. Mr.LaForest concluded that the most serious problem with the ONC process was its lack of independence andobjectivity in considering the claims presented to it. He recommended the establishment of an82 A. Murray, supra note 80, at 39 and 41. NOTE: “In cases where the Department of Justice confirmsthat a “lawful obligation” exists, the Office of Native Claims may still refuse to enter into negotiations ifthe cost of a settlement has the potential to overwhelm ONC’s limited budget. Bands with such legallyvalid but expensive claims are not offered redress by the government through negotiations, as the policywould imply. They are left to go to court because the government is not willing to allocate the fundsnecessary to redress the grievance - unless forced by the courts.”83 Durocher, supra note 20, at 32-33.84 NOTE: B.C. maintained its long standing position of denying the validity of Aboriginal title and didnot join the Nisga’a negotiations until 1990 when it finally reversed its policy. Elliot, supra note 18, at49; Tennant (1993), supra note 27, at 1.1.05; J. Aldridge, “An Overview of the Land Claims SettlementProcess in B.C.” in The Economic Bridge to SelfReliance Aboriginal Land Claims (Native Investment &Trade Association, Conference held on May 12-14, 1990) at 1; B.C. Task Force, supra note 25, at 12-13.23independent tribunal to adjudicate and otherwise assist the resolution of the claims.85 The government didnot follow Mr. LaForest’s recommendation.4. Constitution Act, 1982The year of 1982 was a turning point in the law relating to Canadian Aboriginal peoples. “Rights thathad an uncertain existence in the common law were suddenly enshrined in the written part of theCanadian constitution. Aboriginal-government relations and aboriginal non-aboriginal relations were putinto a more legal framework, and much more under the control of lawyers and courts.”86 TheConstitution Act, 1982, included provisions which recognized and affirmed Aboriginal and treaty rights.Section 3 5(1) states that: “The existing aboriginal and treaty rights of the aboriginal peoples of Canadaare hereby recognized and affirmed.”87 These references to Aboriginal rights remain vague, but the courtshave held they include the right to hunt and fish. Section 35 may also include the inherent right of self-government according to the federal government’s recently released policy on Aboriginal self-government. This premise was in fact part of the Liberal promises in the Red Book of 1993. MinisterRon Irwin confirmed this position by stating: “[T]he federal government operates on the premise that theinherent right to self-government exists and is recognized as an Aboriginal right under section 35 of theConstitution Act, 1982.885. Revision of Land Claims PoliciesIn 1981, the federal government issued its revised comprehensive claims policy in a document entitled InAll Fairness.89 This document clarified some broad positions of the government, such as the desire to85 G.V. LaForest, Report on Administrative Processes for the Resolution of Specflc Indian Claims,(Ottawa, DIAND, 1979); See also V. Savino, “The “Blackhole” of Specific Claims in Canada - Need itTake Another 500 Years?” in Native Land Issues (See You in Court...) (Winnipeg: CBA, April 1989) at22.86 Elliot, supra note 19, at 119.87 Constitution Act, 1982 s. 35, being Schedule B to the CanadaAct, 1982 (U.K., 1982 c.11).88 Federal Treaty Negotiation Office, “Federal Perspective on Self-Government” in Treaty News (July1995) at 3; AnAgendaforAction, supra note 3, at 4-5.89 Canada, In all Fairness: A Native Claims Policy (Ottawa: Queen’s Printer, 1981) (hereinafter In AllFairness).24protect cultural identity of Aboriginal people while allowing their full participation in the development ofthe economy, the unwillingness of government to consider the issue of Aboriginal self-government andconstitutional reform within the land claims process, and insistence that all settlements be final and resultin the extinguishment of Aboriginal rights in exchange for specific benefits.9°Despite its title andapparent revision, the 1981 policy received severe criticisms. For instance, the Nisga’a Tribal Councilstated that “... (In All Fairness) is a very slick process to create in the public mind a definition of what isfair; then, clearly, anything that falls outside of that definition is unfair, unrealistic, not pragmatic,radical, etc. It is a very, very insidious document in that respect.”9’The policy relating to specific claims was reviewed in 1982 and released under the title OutstandingBusiness.92 It appears that this revised policy was also a disappointment. Instead of initiating majorchanges to the previous policy, the government elaborated on the existing premises and only clarified thelimits of what the government was willing to negotiate. The federal government reiterated that its mainobjective was to discharge lawful obligations,93and stated its preference for negotiated settlement forwhich it described a five-stage negotiation process to be followed,94 a procedure developed unilaterally bythe federal government. The development of land claims policies without the participation of Aboriginalgroups has always been a major grievance with First Nations, especially with respect to specific claimspolicies as it clearly departs from the bilateral nature of the treaties.9590 K. Leghorn, Planning for Fairness: An Evaluation of the Canadian Native Claims Settlement Process,U.B. C. Planning Papers (Vancouver: School Community and Regional Planning, August 1985) at 4; G.Dacks, “The Politics of Native Claims in Northern Canada” in Boldt and Long eds., The Quest forJustice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985) 251 at254; AnAgendaforAction, supra note 3, at 24.‘ From testimony to the 1983 Penner Commission on Indian Self-Government, quoted in Leghorn, supranote 90, at 4.92 Canada, Outstanding Business: A Native Claims Policy; Specific Claims (Ottawa: Queen’s Printer,1982).93Ibid, at 19.94Ibid, at 23-25.Agendafor Action, supra note 3, at 54; E. Denhoff, “Specific Land Claims - How Does A TribunalDeal With Them?” in Native Land Issues (See You in Court...) (Winnipeg, CBA, April 1989) at 10.25The comprehensive claims policy was revised again in 1987 in response to the report of the task force toReview Comprehensive Claims Policy (the Coolican Task Force) - Living Treaties: Lasting Agreements.96The Task Force had called not just for a new policy on comprehensive claims, but an entirely “newrelationship” between the government and the First Nations of Canada. Moreover, according to the taskforce, a serious impediment to reaching land claims settlements was the federal government’s insistencethat all Aboriginal rights be extinguished in any comprehensive claim settlement. Consequently, the taskforce recommended an alternative which would allow for flexible agreements that would recognize andaffirm Aboriginal rights.97 In its response to the Coolican Report, the Mulroney government not onlyignored the task force’s recommendations of not insisting on extinguishment of Aboriginal rights butrather emphasized the fact that settlements had to be final. In this latter policy revision, the governmentconfirmed its commitment to negotiation, clarified what would be negotiable at the comprehensive claimstable, expanded the scope of comprehensive claims in certain areas and ignored most of the otherrecommendations of the task force.98 It has been suggested that this negative response to the CoolicanReport has contributed to a deterioration in the relationship between the federal government and FirstNations.996. Oka Crisis in 1990During the summer of 1990, members of the Kanasatake reserve near Oka, Quebec, decided to blockade amajor highway in protest against a proposed golf course expansion onto land which they had laid claim to.On July 11, the protest erupted into a gun battle with Quebec police. The army was called in to deal withthis and another Mohawk blockade of the Mercier bridge in Montreal. The blockades continued untilSeptember when provincial and federal governments agreed to negotiate.100 A number of First Nationgroups across Canada also used rail and road blockades as an expression of their solidarity with the96 Canada, Comprehensive Land Claims Policy (Ottawa: Queen’s Printer, 1987) (hereinafter ClaimsPolicy- 1987).Living Treaties: Lasting Agreements, supra note 8.98 Claims Policy-1987, supra note 96, at 9.99Durocher, supra note 20, at 36.100 Elliot, supra note 19, at 7; Fleras and Elliot, supra note 63, at 93.26activities of the Mohawk in Quebec and to emphasize their demands to both levels of government torecognize their inherent Aboriginal title and rights as well as to begin land claims negotiations.’°’ For allgovernments in Canada, the massive publicity over Oka drew attention to the dangers of not moving onAboriginal claims. As a result of Oka, initiatives were made by New Brunswick and Quebec to establishAboriginal seats in their legislatures. Further, it has been suggested that British Columbia, Saskatchewanand Ontario have taken the land question more seriously, and each of these provinces has endorsed theprinciple of the inherent Aboriginal right to self-government.’027. Revision of Land Claims Policy and Establishment of Land Claims CommissionsThe federal government announced a new initiative on specific claims on April 23, 1991 which includes,among other things, the increase in the funds available for settlements from $15 million to $60 millionannually, the inclusion of pre-confederation claims, a “fast track” process to settle claims under $500,000,the power for the Minister of Indian and Northern Affairs to settle claims under $7 million withoutTreasury Board authority, the creation of a joint First Nationlgovermnent working group to review andmake recommendations regarding land claims policy and process, and the creation of the Indian ClaimsCommission on an interim basis.’°3 This Commission was created to deal with specific claims disputesonly.’°4 The Commission’s mandate is to conduct impartial inquiries where a First Nation challenges thefederal government’s rejection of its specific claim and where a First Nation disagrees with thecompensation criteria used by the government in negotiating settlement of a claim. In these situations, theCommission can conduct hearings in order to complete its report and then it must make recommendations101 B.C. Task Force, supra note 25, at 14; See also Elliot, supra note 19, at 7; Tennant (1993), supranote 27, at 1.1.06.‘°2Fleras and Elliot, supra note 63, at 96.103 ICC (1995), supra note 20, at 14. NOTE: The mandate of the Joint Working Group (JWG) expired inJuly 1993. The parties were unable to reach agreement on an extension of the JWG’s mandate and theprocess ended.104 Order in Council 1991-1329 amended on July 27, 1992 by Order in Council 1992-1730. Durocher,supra note 20, at 37-38.27to the federal government. The Commission also has the mandate of mediating disputes, when such aprocess is agreeable to both parties.’°5During the same period, an important regional initiative originated in British Columbia. The BritishColumbia Treaty Commission is a First Nations, provincial, and federal government initiative undertakenafter the province of B.C. recognized continuing Aboriginal land rights in 1990. This Commission iscomprised of both Aboriginal and non-Aboriginal commissioners and supervise the negotiations ofmodern treaties between governments and First Nations in British Columbia.Some very important agreements were signed in the early 1990’s. For instance, in November 1991, theCouncil for Yukon Indian Comprehensive Land Claim Umbrella Final Agreement was signed with 7,000registered and non-registered Yukon Indians, providing a general framework for individual agreementswith 14 Yukon First Nations. To date, four Yukon First Nation final agreements have been ratified by allparties and this process is continuing. Moreover, in December 1991, the Tungavik Federation of Nunavutland claims agreement was signed with 17,000 N.W.T. Inuit, after 15 years of negotiation. Under thisagreement, Nunavut- the third northern territory- was agreed to and will be in place in 1999. TheNunavut Land Claim AgreementAct received royal assent on June 10, 1993 and came into force on July 9,1993 •106 Another agreement was signed in September 1993 in southwestern N.W.T. with 2,000 SahtuDene Indians and Metis. Finally, in February 1996, the B.C. government, Canada and the Nisga’a TribalCouncil signed an agreement-in-principle after over 20 years of negotiations.Part II Aboriginal and Euro-Canadian IdeologiesThe disputes over the land question in Canada is a reflection of the difficulties in reconcilingfundamentally different philosophical and cultural systems. I will therefore briefly describe the majorideological differences between Aboriginal and non-Aboriginal society.105 Indian Claims Commission, “The Indian Claims Commission” (1994) 1 ICCP, at vii; Turpel (1995),supra note 2, at 79.‘°6Elliot supra note 19, at 8.28A. Western-Liberal IdeologyBefore contact, Aboriginal societies were self-sufficient and self-governing nations. However, the arrivalof Europeans changed the situation dramatically. A policy of assimilation guided the new colony.“Through assimilation, the dominant sector sought to undermine the cultural distinctiveness of aboriginaltribal society; to subject the indigenous to the rules, values, and sanctions of Euro-Canadian society; andto absorb the de-culturated minority into the mainstream through a process of ‘anglo-conformity’.”107The values of the colonial society were and are still very different from those of Aboriginal peoples. TheEuropean-western idea of society “distrusted communal values, exalted the enterprising individual,favoured progress over tradition, and believed that the betterment of humankind lay not in harmony withnature but in its conquest and transformation.”°8In the western-liberal tradition, the dominantconception of society is one where the individual is considered to be morally prior to any group.109 NorthAmerican Aboriginal peoples have a very different conception of individual and society. TraditionalAboriginal philosophies define a person in terms of spiritual unity, consensus, cooperation, and selfdenial.”° The society is unified and “... conceived of as cosmocentric rather than homocentric.”Thomas Berger contends that “[t]he Europeans’ assumption of power over the Indians was founded on asupposed moral and economic superiority of European culture and civilization over that of the nativepeople.”2 Louise Mandell describes the western ideology as one which,.assumes hierarchies of races; it is a commitment (over and above profit) that distant territoriesand their inferior peoples should be subjugated, and given the benefit of the superior dominion; itis a duty of the superior race to bring their opportunities, knowledge, democratic government toless evolved races and to promote their evolution. In summary, the vision is of western powers107 Fleras and Elliot, supra note 63, at 41.B.C. Task Force, supra note 25, at 8.109 M. Boldt and J.A. Long, “Tribal Philosophies and the Canadian Charter of Rights and Freedoms” inBoldt and Long eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto:University of Toronto Press, 1985) 165 at 166.°Jbid, at 167.“ Ibid, at 166.112 T. Berger, Northern Frontier Northern Homeland, The Report of the MacKenzie Valley PipelineInquiry, Revised Edition (Vancouver: Douglas & McIntyre, 1988) at 217.29who have a right to rule, indeed an obligation to do so because of the superiority of their race; inruling inferior peoples they bring opportunity, benefits and enlightenment.1’3The means used by the Euro-Canadian governments to achieve their goal of assimilation were, amongother things, the location of the Aboriginal people on reserves where they could be “civilized” and whereeducation and Christianity could be brought to them.”4 Children were removed from their families andcommunities and placed in residential schools where they were to be educated as non-Aboriginals.”5Thereserve system also forced the replacement of the Aboriginal systems of governments with the introductionof western systems of governments, known as band councils.”6 The governments outlawed the traditionalpotlatches which were the heart of the social and political system of Aboriginal peoples on the westcoast.”7 This paternalistic attitude went as far as prohibiting Indian people from raising money for theadvancement of a land claim, prosecuting claims to land, or retaining a wy’8 In spite of thecolonization movement, Aboriginal peoples survived. However, the effects of colonization andassimilation were dramatic:(the First Nations) say that their lands and resources have been stolen; that they, their institutionsand their way of life have been ignored, disrespected, degraded. They say that they were abusedby the education system, which tore apart families, and caused much grief. Residential schoolsalso left them without the benefit of their peoples’ knowledge which ordinarily would have beenpassed to them. They say that their languages, spirituality and culture was attacked.”9B. Modern RelationshipRyan and Ominayak point out that the relationships between Aboriginal and non-Aboriginal people havechanged over time but have always been characterized by a serious imbalance of power between the two“ L. Mandell, The Birth of the White Buffalo, (Native Investment and Trade Association Conference,Aboriginal Law in Canada, 1995) at 2.“4lbid, at 2.Task Force, supra note 25, at 9.“6Mandell (1995), supra note 113, at 2.“ See F.E. LaViolette, The Struggle For Survival: Indian Cultures and the Protestant Ethic in BritishColumbia (Toronto: University of Toronto Press, 1973) at 43.118 Indian Act, s. 141. NOTE: This section was repealed in 1951. See Chief J. Mathias and G.R.Yabsley, “Conspiracy of Legislation: The Suppression of Indian Rights in Canada” in British ColumbiaStudies: A Special Issue in Celebration of Our Survival: The First Nations of British Columbia (Spring1990) No. 89, 34 at 35-36.“ Mandell (1995), supra note 113, at 2.30groups. They explain that “[t]hese relationships have reflected varying historical conditions as the twogroups progressed. However, it is clear that at all times, the relationships reflect an attempt by thedominant group to control Indians and that the dominant group has, at all times, retained power (and thuscontrol) over native people.”2°The attitudes of assumed Aboriginal inferiority and the government policies over the last century have hada cumulative impact which is reflected in contemporary relationships between Aboriginal and non-Aboriginal societies. According to Judge Sarich,[t]he Indian Act of Canada is premised upon the postulate that Native people are incapable ofmanaging their own lives, that they cannot make their way in non-Native society and that theyare inferior to non-Natives. These concepts have been advanced for so long by the Governmentof Canada through the Department of Indian Affairs, and so uncritically accepted for so manydecades by the non-Native population, that there has come to an unconscious acceptance of theseso-called truths. The dependency, the poverty, the self-destruction to which the Natives werereduced by a conscious policy of government were unspoken confirmation of this ‘truths’ 121The relationship between First Nations and Euro-Canadian governments has deteriorated slowlythroughout the last 150 years to the point where their relationship can now be characterized by distrust,dependency, tension and frustration. It is these same groups - First Nations and governments - who arenow involved in trying to find an acceptable way to resolve some of the many injustices that have occurredduring more than a century. All parties are claiming to represent legitimate interests and one mustrecognize that they all feel enormous pressure in the present social, economic and political context withrespect to how to resolve these complex issues.Part ifi Dynamic Between Parties to the Land Claims DisputesThe land disputes have many characteristics which must be mentioned at the outset. One of the mostimportant elements is the fact that these disputes involve many parties and none of these parties aremonolithic - they all represent a broad diversity of views among their respective groups. There are also120 and Ominayak, supra note 37, at 346.121 Canada, Report of the Royal Commission on Aboriginal Peoples - Report of the Canboo-ChilcotinJustice Inquiry, at 11.31some parties that will be directly involved in the resolution of these disputes while some others will onlybe consulted. Moreover, it is critical to recognize that these disputes involved not only divergent interests,but they also challenge fundamental differences in values, culture and sense of identity.A. Governments’ Dilemma1. The Role of IdeologySally Weaver contends that ideology plays a major role when governments develop Aboriginal policies.“Indian policy in Canada is made by individuals who hold strong feelings about whether or not nativegroups should be treated differently from other Canadians.”22 It has been suggested that one of the mostpervasive forces underlying the federal government’s resistance to Aboriginal rights demands is itsresolute commitment to liberal-democratic ideology. Weaver explains that:Liberal-democratic ideology stresses equality, individualism, and freedom from discrimination onthe basis of race, religion, nationality, and so on. For most policy-makers in government,demands for aboriginal rights are problematic because they call for the administration of services,programs, and laws on the basis of special status, collective rights, and cultural uniqueness. Allof these concepts are viewed by the government as contradicting liberal-democratic ideology.’23Therefore, it is suggested that the attitudes of governments in relation to Aboriginal demands “are shapedby a fundamental dualism regarding the nature of the ‘Indian problem’, with predictable consequences forpolicy resolutions.”24 In fact, it appears thatpolicy-makers are confused by competing definitions of equality; one entailing equal treatmentand no special privileges, and the other acknowledging the necessity of special treatment forcertain sectors if true equality is to be attained. When applied to aboriginal policy andadministration, this duality of meanings breeds ambiguity and confusion, since some federalspending cuts, abolition of the Department of Indian Affairs, and curtailment of federal services,while others endorse self-government and aboriginal rights as basic human rights.’25122 S.M. Weaver, “Federal Difficulties with Aboriginal Rights” in Boldt & Long, eds., The QuestforJustice: Aboriginal People andAboriginal Rights (Toronto: University of Toronto Press, 1985) 139 at141-142.23 NOTE: When provisions for special treatment of Indians have been incorporated into governmentpolicies, they have always been characterized as transitory or temporary measures and rationalized on thebasis of economic need (socio-economic class), not on the basis of cultural recognition (ethnicity). Ibid, at142.‘24Fleras and Elliot, supra note 63, at 51.‘251b1d322. Sensitive Political IssuesGovernments generally seek to find a balance when dealing with Aboriginal issues by flying to representwhat is generally accepted by society as being just and equitable. This is a difficult task. The dilemmafacing governments was explained by John Ciacca in these terms:On the one hand, because our Sense ofjustice and concern for the disadvantaged is generallyaccepted by society, governments must be more flexible in their approach to native claims. Onthe other hand, claims cannot contain concepts and be viewed as being so exorbitant as to berejected by society. We are caught in a balancing act between the views and needs of society onthe one hand, and the needs and aspirations of the native community on the other.’26Commentators, judges and First Nations have all recognized that the Aboriginal land question isfundamentally a political issue. It was suggested that all Aboriginal issues are “public issues whereeveryone feels he has, if not a direct interest, at least a sufficient interest to entitle him to have views onthe subject and, more often than not, views which he considers just and which should prevail.”27Consequently, governments know that what is negotiated and the terms of settlement of any Aboriginalland claims will be ultimately decided by the political acceptance of their contents. “What the governmentoffers and finally negotiates must be acceptable to the public.”28The determination of what the federal government will accept to negotiate is contained, since 1973, in theland claims policies. In setting the objectives and limits of what is on the negotiation table, the federalgovernment is trying to find a balance between the interests of Aboriginal and non-Aboriginal society.Whether the federal government has been successful in finding this balance will be discussed in ChapterThree.3. Public OpinionThe public opinion concerning Aboriginal issues is precarious. Public-opinion polls done shortly after theOka crisis in September 1990 and recently in B.C. indicate considerable public sympathy for the demands126 j• Ciacca, “The Settlement of Native Claims” (1977) 15 Alberta Law. Rev. 556 at 557.‘27Ibid at 561.12833of Aboriginal peoples in Canada.’29 However, while there seems to be a general support for a fairresolution of Aboriginal land claims in Canada, this support is often disturbed or weakened by variousfactors including the amount of money to be granted to First Nations in compensation and the non-Aboriginal interests being adversely affected by proposed settlements. The federal government must findthe right balance between the various competing interests involved in land claims. Canada has a generalobligation to represent all Canadian citizens, including all Aboriginal people. However, it is sometimesargued that in land claims negotiations the federal government tends to only represent non-Aboriginalinterests at the negotiation table since Aboriginal people are on the other side of the table representingtheir own interests. Moreover, considering the fact that Aboriginal people represent about four percent ofthe total population in Canada, it becomes a difficult task for the government to find a balance betweenthe interests of Aboriginal and non-Aboriginal people. There is therefore a risk that the views and desiresof the ninety-six percent of non-Aboriginal Canadians will be a major influence in dictating to thegovernment the way to resolve the land question in Canada.4. Personalities of Policy-MakersIt is also argued that personalities are a key factor in the development of policies both at the level ofpoliticians and non-elected officials. Weaver contends that most of the policy initiatives in the 1960s and1970s were strongly influenced by officials in various federal departments and agencies that weresympathetic to the Aboriginal cause. However, it seems that today these sympathetic public officials arefew and have little influence in their departments. With respect to politicians, Weaver suggests that“although individual ministers can be and have been sympathetic to native demands, they have neither the129 NOTE: The survey done in September 1990 indicated that more than 67% believed the governmenthad broken its obligations to Aboriginal peoples. Another 70% believed the government had failed tohonour its treaty obligations, and 62% supported land claims settlements. Moreover, the SpicerCommission Report on the Citizens Forum for Canada’s Future in late June 1991 confinnedoverwhelming public support for equitable resolution of Aboriginal land claims and establishment ofappropriate self-governing structures where warranted. Quoted in Fleras and Elliot, supra note 63, at 97-98.34time nor, often, the skill or influence to translate native demands into policy forms acceptable to5. Political PrioritiesOther central factors that influence the development of Aboriginal policies are the political priorities ofgovernments. Governments are now focusing on economy and unemployment and there has been anstrong emphasis on more rigorous financial control and management and spending restraint. Accordingto Angus Murray, “Native people will inevitably be among the victims of any cuts in governmentspending because they are already a marginalized group in Canadian society - demographically,regionally, economically, politically and racially. As competition increases for the remaining seats in thelifeboats, these factors will ensure that Native people will be among the first to be thrown out.”3’ Flerasand Elliot agree that “Aboriginal policy at present is shaped in a context dominated by fiscal restraint andreduction of federal Until now, Aboriginal programs have not been subject to thegeneral cuts made by the federal government. DIAND is nonetheless affected by the general spendingrestraint of the government. This can be illustrated by Minister Irwin’s comment in June 1996, during anational conference on land claims held in Toronto, when he raised the current fiscal problems as anobstacle to the creation of an independent claims body.6. IncentiveSome forces are driving provincial and federal governments to engage in the process to resolve the landquestion. In recent years, the Canadian courts have become more inclined to recognize Aboriginal rights.Aboriginal peoples have been using direct political action and the court system to obtain injunctions tohalt development while the question of Aboriginal title and rights is being decided by the courts or being‘° Weaver (1985), supra note 122, at 142-143.‘‘ A. Murray, supra note 80, at 23.132 Fleras and Elliot, supra note 63, at 49.35negotiated.’33 More importantly, there is a clear sense that the absence of settlements is causinguncertainty which is negatively affecting the economy. Frank Cassidy has described how this uncertaintyis affecting the province of British Columbia:Developers wonder who their real landlords are or will be. Investors are concerned about theconditions that surround and will be surrounding development. Working people worry about theirjobs. Small businesses, such as those in the fishing industry, are concerned about who will payfor settlements when they do come. Large businesses are thinking about going or just stayingelsewhere.’34The uncertainty created by land claims in Canada has resulted in economic losses. All levels ofgovernment have therefore expressed the fact that their primary goal in settling land claims is to end thisuncertainty to encourage economic developments in regions affected by land claims.7. Complexity of GovernmentsAnother difficulty for governments in dealing with Aboriginal issues is the fact that a government is not a“monolithic corporate entity whose component parts think and act in concert.”35 Rather, governments’organizational complexity and scale inevitably lead to internal conflict among their various departmentsand agencies and to contradictory philosophies and policies.’36 In the context of Aboriginal land claims,this can be evidenced by the lack of co-ordination between government actions and policies.7.1 Federal Department of Indian Affairs and Northern DevelopmentWhen the federal government assumed jurisdiction over Aboriginal affairs in 1867, it created the IndianAffairs branch within the Department of the Secretary of State. The responsibility for Aboriginal affairs‘ NOTE: Political responses to direct political action by First Nations is difficult. Governments “cannotbe seen as moving too quickly, for that might risk electoral rebuke and grave social consequences. Bycontrast, moving too slowly incurs the risk of stoking the fires of another Oka in one of numerous hotspots across Canada. By the same token they cannot afford to be seen as weak and vacillating, passivelyaccepting all aboriginal demands. Finding the proper political response, in other words, is critical ifdiverse publics are to be placated.” Fleras and Elliot, supra note 63, at 86.‘s” F. Cassidy, ed., Reaching Just Settlements - Land Claims in British Columbia (Proceedings of aConference held February 21-22, 1990) (Vancouver: Oolichan Books and the Institute for Research onPublic Policy, 1991) at 86.Weaver (1985), supra note 122, at 141‘36Ibid.36was shortly after transferred to the Department of Interior, then to the Department of Mines and Resourcesin 1936, to the Department of Health and Welfare in 1945 and to the Department of Citizenship andImmigration in 1949. It was only in 1966 that the Department of Indian Affairs and NorthernDevelopment (DIAND) was created.’37The Department of Indian Affairs and Northern Development has been severely criticized as being “aninstrument of colonial domination, control and assimilation.”38 However, the difficult situation in whichDIAND finds itself must be acknowledged. DIAND faces a conflicting mandate in that it must administerthe provisions of the Indian Act which is based on colonialist and paternalistic assumptions and, at thesame time, it is asked to advance the cause of Aboriginal self-sufficiency and community self-governmentwithin the parameters of the Indian Act.’39To add to this complexity, since the decision of the Supreme Court of Canada in Guerin v. The Queen,’4°DIAND has to take into account the Crown’s fiduciary obligations to Indians. In Guerin, the SupremeCourt of Canada stated that:Through the confirmation in the Indian Act of the historic responsibility which the Crown hasundertaken, to act on behalf of the Indians as to protect their interests in transactions with thirdparties, Parliament has conferred upon the Crown a discretion to decide for itself where theIndians best interests really lie... This discretion on the part of the Crown, far from ousting, asthe Crown contends, the jurisdiction of the courts to regulate relationship between the Crown andthe Indians, has the effect of transforming the Crown’s obligation into a fiduciary one.14’This fiduciary obligation has serious implications for the federal government’s approach toward theresolution of land claims. In fact, the Supreme Court of Canada ruled in Sparrow v. The Queen’42 thatthe Crown’s fiduciary obligations extend to the Aboriginal and treaty rights of the Aboriginal people ofCanada. As a result,Ponting and Gibbins, supra note 66, at 14-15.138 Fleras and Elliot, supra note 63, at 81.‘39Jbid.‘° [1984] 2 S.C.R. 335.‘‘ Ibid, at 384.142 (1990), 70 D.L.R. (4th) 385 (S.C.C.).37.the Government has the responsibility to act in a fiduciary capacity with respect to aboriginalpeoples. The relationship between the Government and aboriginal is trust-like rather thanadversarial, and contemporary recognition and affirmation of aboriginal rights must be defined inlight of this historical relationship.’43DIAND must also try to balance the competing demands of some 600 Indian bands, as well as those of theseveral government departments and agencies. Thus, it appears that “...many of the Department’s failuresreflect its status as a bureaucracy, and the high degree of rigidity and inefficiency intrinsic to any largeorganization.”44 Further, it was suggested that “the Department’s relatively low status within thegovernment has cramped its effectiveness as a forum for aboriginal grievances.”45 In fact, it is arguedthat “the primary (if latent) function of the Department is to contain and control aboriginal peoples, inlarge part by channeling aboriginal aspirations into avenues that are acceptable to outside interests.”46Fleras and Elliot conclude that DIAND.finds itself in the unusual position of intermediary between the state and the aboriginal nations.This middle ground means that it must fulfill its obligation to the government and state, yet atthe same time be responsive and answerable to its aboriginal clients - without much support fromeither sector. Confusion arising from this dual mandate has made DIAND a convenient target,and a lightning rod for aboriginal anger and frustration.’47As a result, it has been suggested that “Natives have long been dissatisfied by their relationships with thebureaucracies of the federal government”.148 It seems that the current relationship between First Nationsand the federal government, especially with DIAND, is primarily adversarial. Turpel contends that thisenvironment of adversarial attitude and distrust makes it very difficult to introduce alternativephilosophies of dispute resolution.’49 She explains that this climate of hostility and adversarialism is aresult of the fact that “claims resolution policies have never been sensitive to the cross-cultural nature ofthe‘431b1d, at 24.144Fleras and Elliot, supra note 63, at 82.‘451b1d.‘461b1d, at 82-83.147 Ibid, at 83.148 Cassidy and Dale, supra note 32, at 26.‘‘ Turpel (1995), supra note 2 at 81.‘501b1d, at 82.387.2 Provincial and Territorial GovernmentsFederal-provincial/territorial relations with respect to Aboriginal issues remain mostly undefined. Itappears that there has never been a systematic effort by the federal government to develop a clear policydirection engaging the provinces in Aboriginal affairs.15’ A good example of this is the lack ofconsultation with the provinces and territories when the federal government released its firstcomprehensive claims policy in 1973. However, because of the constitutional division of powers,provincial governments are significantly affected by the resolution of land claims since most of the landsand resources involved in the settlement of these claims fall under provincial jurisdiction. In the Yukonand the N.W.T., although lands and resources fall under federal jurisdiction, the territorial governmentsgenerally participate in the negotiations and in the application of land claims policy.First Nations have historically avoided formal relationships with the provinces, in an effort not tojeopardize their special relationship with Canada set out in the Royal Proclamation of] 763, theConstitution Act of 1867, and the Indian Acts of]876 and 1951. Further, in current land negotiations, itseems that federal and provincial governments still disagree on how to share the responsibility withrespect to land rights. This exercise is often referred as the “jurisdictional ping-pong” and partly explainswhy First Nations often seek to negotiate only with the federal government.’52It is however clear that the involvement of provinces is critical to the resolution of land claims in Canada.This can be illustrated by the rapid changes that occurred in British Columbia as a result of a shift in theprovince’s position with respect to its involvement in the resolution of land claims. After Confederation,the government of B.C. took the position of denying the existence of Aboriginal title or special rights and‘‘ Weaver (1985), supra note 122, at 146; See generally D.C. Hawkes, ed., Aboriginal Peoples andGovernment Responsibility: Exploring Federal and Provincial Roles, (Ottawa: Carleton University Press,1989). NOTE: However, constkutional recognition of existing Aboriginal rights has the effect ofbringing the provinces into the negotiations on Aboriginal issues, given that the provinces’ part in theconstitutional amending process gives them a key role in future efforts to define Aboriginal rights. Boldtand Long, supra note.., at 11.152 Indian Commission of Ontario, Indian Negotiations in Ontario: Making the Process Work (A Reportof the Indian Commission of Ontario, December 1994) at 33.39refused any involvement claiming that comprehensive claims were a federal responsibility.’53 It was onlyin August 1990 that the provincial government agreed to join the First Nations and the government ofCanada in land claims negotiations following a recommendation of the Premier’s Council on NativeAffairs. Since 1990, the province of B.C. has entered into an agreement with the First Nations and thefederal government to create the British Columbia Treaty Commission to supervise the negotiation ofmodern treaties in this province. Moreover, in February 1996, the first agreement-in-principle was signedby the Nisga’a people and both levels of government after more than 20 years of negotiations.’54B. First Nations of CanadaMany First Nations believe that the only way policies affecting Aboriginal people will change is by raisingtheir issues on the public agenda. They have to convince the public of the legitimacy of Aboriginal issuesin both the legal and the political sense. Miles Richardson, President of the Haida Tribal Society, statedthat: “I believe that a solution is possible. It’s going to take a huge effort to raise it on the public agenda.The lack of seriousness with which politicians take this issue has to change and only we can bring it about- the First Nations, and people who want to make an effort to understand these issues.”155 Unfortunately,First Nations have a relatively limited political power at their disposal for initiating fundamental socialchange.’56Therefore, when conventional means of redress have been ineffective or unavailable, Aboriginal groupshave used various tactics including demonstrations of civil disobedience, policy protests, appeals tointernational agencies and occasionally violent confrontations to bring public and political attention to153 Cassidy and Dale, supra note 32, at 12.154 NOTE: Under the agreement-in-principle, the Nisga’a will receive $190 million, ownership of about1, 930 square kilometers of land in the Lower Nass Valley and broad self-government powers.M. Richardson, in F. Cassidy ed., Reaching Just Settlements - Land Claims in British Columbia(Proceedings of a Conference held February 21-22, 1990) (Vancouver: Oolichan Books and the Institutefor Research on Public Policy, 1991) 48 at 50-5 1.‘56Fleras and Elliot, supra note 63, at 85.40their grievances. Don Ryan, speaking of behalf of the Office of the Gitksan Wet’suwet’en HereditaryChiefs, described their efforts to influence governments in dealing with comprehensive claims:We have been putting pressure on the federal government and the province to deal with thisissue, and we have used the litigation route as one way to put pressure on them; the other is thedirect political action that we have been involved with. (...) There has to be some movement inthat area, and it takes a lot of effort to change policies. The strategies that we carry out to try toinitiate that action require a lot of support from people.157Professor Douglas Sanders describes the entire strategy of the Gitskan and Wet’suwet’en to force apolitical response to their claim: “[t]hey used every strategy available - roadblocks, fish-ins, marshmallowfights, participation in the First Ministers’ Conferences, a play (that toured the province, the country, andthe world), a film, links to academics, [a] conference (...), [a] book, the book of the opening presentation,buttons, shirts, posters, T-shirts.”158Therefore, even if tactics to attract media exposure incur the risk of backlash, it appears that in Canada,these means have been generally relatively effective in moving Aboriginal issues to the centre of thenational agenda.’59ConclusionThe relationship between First Nations and Euro-Canadian society has been a difficult one which hasresulted in many serious grievances. Different means have been used to resolve complex disputes betweenAboriginal people and Canadian governments, including treaties, litigation, negotiation and sometimesmediation and arbitration. However, as explained by Daniel,.the particular nature of the relationship between Indian people and the federal governmentseems to have provided a fertile ground for creating claims and no mutually acceptablemechanisms for resolving them, with the possible exception of the treaties. Since the war, there157 D. Ryan, in F. Cassidy ed., Reaching Just Settlements Reaching Just Settlements- Land Claims inBritish Columbia (Proceedings of a Conference held February 2 1-22, 1990) (Vancouver: Oolichan Booksand the Institute for Research on Public Policy, 1991) 52 at 54.158 D. Sanders, “Getting Back to Rights” in F. Cassidy ed. Aboriginal Title in British Columbia:Delgamuukw v. The Queen (Vancouver: Oolichan Books and the Institute for Research on Public Policy,1992) 261 at 282.Fleras and Elliot, supra note 63, at 86.41has been a growing awareness of a backlog of claims and of the need for a more definite nativeclaims process.’6°In fact, prior to World War II, Aboriginal issues were not a priority for the federal govermnent and therewas no process in place to deal with Aboriginal land claims since the govermnent did not recognizeAboriginal rights. However, in the early 1970s, the policy discourse of the federal government onAboriginal issues shifted in response to various events. First, the Supreme Court of Canada ruled inCalder that the Nisga’a had held Aboriginal title in pre-colonial times and then split evenly on thequestion of the continuing existence of that title. Second, the 1969 White Paper raised the politicalconsciousness of Aboriginal groups and contributed in uniting First Nations across Canada. Third, as aresult of these events, the general public was supporting the fair resolution of land claims. Fourth, theTrudeau government in 1973 was in a precarious situation of a minority government, with the oppositionparties supporting the resolution of Aboriginal claims. Finally, there was an increased consciousness thatthe social and economic condition of the Indian communities conflicted with Canadian ideas of humanrights and national prestige. Thus, the combined impact of these events forced the federal government topropose a new paradigm in the making of the Aboriginal agenda. However, this shift in the government’spolicy discourse with respect to Aboriginal issues was reluctant and this would explain part of thedifficulties which have arisen in the resolution of land claims. Many commentators have suggested thatthe changes in the Aboriginal agenda have been largely symbolic, illusory and rhetorical rather thansubstantive and real. In fact, what followed the initial reversal of the policy was 23 years of ad hoc andinconsistent governmental promises, proposals, and sometimes decisions aiming at developing processesand policies to resolve land claims. The commitment of the federal government in dealing withAboriginal issues was and still is unreliable, for it tends to respond to pressing issues and currentcontroversy rather than developing long-term policy. Aboriginal issues are particularly difficult to resolvesince various parties with competing interests and ideologies are involved in the debate and push for theirviews to be represented in the national Aboriginal agenda. Moreover, other factors have caused problemsin the development of adequate processes to resolve land claims. These include the fact that the federal‘60Daniel, supra note 42, at 215-216.42government has had difficulties in trying to coordinate federal and provincial/territorial interests inrelation to Aboriginal issues. There is also the fact that government has found land claims negotiationsdifficult, both in terms of finding skilled negotiators able to handle polycentric problems and giving theman adequate mandate. The federal government is also concerned about the time and resources needed tosettle land claims and the risk of major shifts in public attitudes. The commitment of the government hasalso been unreliable due to the fact that First Nations have been unable to play by federal rules in terms ofcohesiveness, ability to lobby, ability to negotiate and willingness to move with appropriate speed. In fact,First Nations have been unable to keep a reasonably steady pressure on government.Thus, it can be concluded that to date, the attitude of the federal govermnent in relation to Aboriginalissues has been mostly reactive rather than proactive. Land claims policies which recognize the need tonegotiate land and resources issues with First Nations have been reluctantly put in place by the federalgovernment in the early 1970s and by themselves, these policies cannot undo decades of inertia andassimilatiomst policies. Fundamental changes in the attitude towards Aboriginal issues will take time andwill require a serious commitment of all the parties to generate a new relationship based on equality. Inorder to develop such a relationship, there will be a need for greater tolerance of cultural differences and awillingness to share the power with the First Nations of Canada. It is these same principles of recognitionand empowerment which should guide the reform of the land claims process in Canada.43CHAPTER TWO LITIGATIONCanadian literature regarding litigation in the context of Aboriginal land claims recognizes thatAboriginal people are generally in a disadvantaged position when going before the courts.16’ There aremany reasons for this: the lack of resources available to Aboriginal groups and the contrasting power andresources of governments, the delays of litigation which almost always work in favour of governments, theunfamiliarity of many judges with the area of Aboriginal law, the background and philosophy of manymembers of the judiciary and the serious consequences of a judicial decision in favour of the Aboriginalpeople.’62 Furthermore, the judicial system is unlikely to be an appropriate forum to define all aspects of anew relationship between Aboriginal societies and Euro-Canadian governments.’63 Referring toAboriginal claims that were brought before the courts, one First Nation stated that these were “attempts tofind aboriginal rights in the jurisprudence of the oppressor.”64Because of the several difficulties with the judicial system, the tendency has been in recent years to favorthe process of negotiation to address the difficult issues involved in land claims. Despite this, the Courtscontinue to have a role to play in the resolution of the land question in Canada. The purpose of thischapter is therefore to outline the benefits and impediments of litigation with respect to Aboriginal landclaims in order to improve the role of the courts in relation to these complex questions. In the first part ofthe chapter, I will examine the theories of adjudication. Part II will discuss the advantages anddisadvantages of litigation as a mean to resolve Aboriginal claims. Finally, Part III will explore somepossibilities to improve the role of Canadian courts when dealing with Aboriginal land disputes.161 See for example, H. Feit, “Negotiating Recognition of Aboriginal Rights: History, Strategies andReactions to the James Bay and Northern Quebec Agreement” (1980) 1 Canadian Journal ofAnthropology 159 at 163; Living Treaties: Lasting Agreements, supra note 8, at 75; Colvin, supra note54, at 5; Daniel, supra note 42, at 239; R. Jamieson, Resolution of Issues Involving First Nations andGovernments: An Ontario Experience (Draft prepared for the Special Committee on Native Justice of theCanadian Bar Association, 1988); Ciacca, supra note 126, at 557; K. Lysyk; “Approaches to Settlementof Indian Title Claims: The Alaskan Model” (1973) 8 U.B.C.L. Rev. 321.162 O’Reilly, “The Courts and Community Values” (1988) 15 Alternatives, No.2, 40 at 47.‘63An Agendafor Action, supra note 3, at 77-78.164 D. Elias, “The ‘Business’ of Self Reliance” in The Economic Bridge to SelfReliance Aboriginal LandClaims (Native Investment & Trade Association, Conference held on May 12-14, 1990) at 2.44Part I Theories of AdjudicationA. DefinitionAdjudication involves a highly structured process by which one party forces another party to submit adispute to compulsoiy determination by a neutral judge. Theories on the role of adjudication have beenheavily influenced by the ideas of late law Professor Lon Fuller.165 Fuller described the adjudicatoryframework in the following way:(1) Adjudication is a process of decision that grants to the affected party a form of participationthat consists in the opportunity to present proofs and reasoned arguments. (2) The litigant musttherefore, if his participation is to be meaningful, assert some principle or principles by which hisarguments are sound and his proofs relevant. (3) A naked demand is distinguished from a claimof right by the fact that the latter is a demand supported by a principle; likewise, a mereexpression of displeasure or resentment is distinguished from an accusation by the fact that thelatter rests upon the same principle. Hence, (4) issues tried before an adjudicator tend to becomeclaims of right or accusations of fault. 166B. Limitations of Adjudication1. Polycentric ProblemsFuller’s work has focused on the limits of adjudication, trying to identify disputes which are inherentlyunsuited to the adjudicative process. He suggested that “polycentric” problems, which have complexinterconnected issues which exceed the ability of a rational, principle-based approach, should not beresolved through the “all or nothing” approach of adjudication.’672. Relationship between the PartiesAnother limit of adjudication concerns the relationship between disputants.’68 Fuller was of the opinionthat the institutional framework of adjudication, with its orientation towards proofs and reasonedarguments, tends to convert all submissions into claims of right and wrong. He stated that “certain kinds165 L.L. Fuller, “The Forms and Limits of Adjudication” (1978) 92 Han’. L. Rev. 353; See also Colvin,supra note 54, at 9.‘Fuller, supra note 165, at 369.167 Ibid, at 394-404; J.M. Nolan-Haley, Alternative Dispute Resolution in a Nutshell (St.Paul: WestPublishing, 1992) at 6. NOTE: Polycentric problems will be discussed in more details in Chapter Threeunder the title “Nature of the Claims”.168 Colvin, supra note 54, at 10; Fuller, supra note 165, at 368-370.45of human relations are not appropriate raw material for a process of decision that is institutionallycommitted to acting on the basis of reasoned argument.”69 Accordingly, he submitted that adjudication isnot just inappropriate but is in fact counter-productive when disputants are engaged in an on-goingrelationship. He stated that[i]f we regard a formal definition of rights and wrongs as a nearly inevitable product of theadjudicative process, we can arrive at what is perhaps the most significant of all limitations onthe proper province of adjudication. Adjudication is not a proper form of social ordering in thoseareas where the effectiveness of human association would be destroyed if it were organized aboutformally defined “rights” and “wrongs”.’7°Thus, he suggested that the adversary proceedings in adjudication are antithetical to the goal ofExperience has also demonstrated that the focus on confrontation in adjudicationencourages the parties to see disputes as a win or lose proposition, in which they are “adversaries” andcommunicate only through their lawyers. It has been further suggested that the courtroom itself“establishes and fosters both adversarial attitudes and binary thinking that stifie creative problem-solving.”72 Moreover, in the context of Aboriginal land claims, it has been noted by a committee of theCanadian Bar Association that “ dealing with matters so fundamental as cultural survival andnationhood, imposed solutions are not viable and cannot last.”73Sociological theorists of dispute resolution have also focused upon the extent to which disputants engagedin on-going cooperative relationships should be protected from the potentially disruptive consequence ofadjudication:Common human experience teaches us that the consequence, on the future relationship of theparties to conflict depend, to a degree, on their sense of equitable treatment in the conflict.Where the parties want or must have continuing interactions of a nonantagomstic nature after thedispute, both must leave the dispute-settlement procedures without too much of a sense ofgrievance. If, however, the parties need not live together thereafter, then it is irrelevant whethereither of the parties continues to be antagonistic to the other after the proceedings.’74169 Fuller, supra note 165, at 371.170bid, at 370-371.171 See also Colvin, supra note 54, at 10.172 S.D. Brienza, “Wet Water vs. Paper Rights: Indian and Non-Indian Negotiated Settlements and TheirEffects” (1992) 11 Stanford Environmental Law Journal 151 at 168.173AnAgendaforAction, supra note 3, at 71.W.J. Chambliss and R.B. Seidman, Law, Order and Power (Reading, Mass.: Addison-Wesley, 1971) at29.46Therefore, it appears that adjudication might not be the most appropriate mechanism to deal with“polycentric” problems and might even be counter-productive when the disputants are involved in acontinuing relationship. I will now examine how these theories apply in the context of Aboriginal landclaims.Part II Adjudication in the Context of Aboriginal Land ClaimsPrior to 1973, the courts were the only forum to hear and determine claims relating to Aboriginal rights.As stated by James Frideres,.coercion and adjudication were the most prevalent ways of processing disputes. Thegovernment of Canada, either through its administrative arm, DIAND, or through the courts,processed all native claims. The stronger of the disputants, i.e., the government, inevitablyimposed its decision on the weaker of the parties.’75After the federal government’s policy announcement in 1973 that it would enter into negotiations withAboriginal groups to settle comprehensive claims where rights of traditional use and occupancy hadneither been extinguished by treaty nor superseded by law, Aboriginal land claims started to be mainlynegotiated. However, land claims continue to be brought to the courts by claimants for a variety ofreasons. For instance, the courts are the only option for Aboriginal claimants when governments areunwilling to negotiate’76or when Aboriginal claimants are dissatisfied with the progress of thenegotiations. Professor Douglas Sanders reports that the following goals have been pursued in Aboriginallitigation:Litigation over specific rights was aimed at winning recognition of those rights. Sometimeslitigation attempted to hold the status quo by blocking some development project. This was theinitial goal of the James Bay litigation in the early 1970s. But cases like Calder, Coe, TaxedMountains, and Delgamuukw were aimed at changing government policy, opening upnegotiations, getting a new deal.’77J.S. Frideres, “Native Claims and Settlement in Yukon” in Ponting ed., Arduous Journey: CanadianIndians and Decolonization (Toronto: McClelland and Stewart, 1986) 284 at 290-29 1.176 M. Coolican, in F. Cassidy ed., Reaching Just Settlements: Land Claims in British Columbia(Proceedings of a Conference held February 21-22, 1990) (Vancouver: Oolichan Books and The Institutefor Research on Public Policy, 1991) at 6.‘ Sanders (1992), supra note 158. at 281.47In August 1988, a special committee of the Canadian Bar Association filed a report noting that Aboriginalpeople had not fared well within the structure of the judicial system since Confederation.’78 The reportconcluded that the Canadian legal system had not responded well in the past to Aboriginal issues and thatthe problem was ongoing.’79 The CBA wrote that First Nations are seriously disadvantaged “in that theyare effectively asking the courts to overturn 100 years of legal precedent that involved an entirely differentview of Canadian history.”8°I therefore suggest to begin by exploring the disadvantages of litigation inthe resolution of Aboriginal land claims.A. Limitations of Litigation1. Cultural Framework of the Canadian Courts1.1 Colonial SovereigntyOur relationships with Aboriginal people have been characterized by a failure to understand, or anunwillingness to accommodate Aboriginal traditional cultures.’8’ Thus, it has been suggested that “...inapproaching the courts to determine claims, Aboriginal people essentially submit themselves to a foreigncultural framework, one which enjoys self-professed legitimacy and supremacy.”82 As stated by PeterKuichyski,Aboriginal people have painstakingly had to learn the process of addressing the courts in order tobegin to be heard. ... The languages of Aboriginal peoples, not just the verbal patterns and“translatability” but the very grammar implied in the cultural forms, have not been addressed bythe courts. ... Instead, the dominant cultural form presents itself as Truth: bibles are produced,spectacles areThis was clearly the feeling of the Gitksan and Wet’suwet’en People in bringing their case before thecourts. According to Satsan, he and his people “were entering a game in which we had no involvement‘78AnAgendaforAction, supra note 3 at 11.‘791b1d, at 25.‘801b1d181 P.R Grose, “Towards a Better Tomorrow: A Perspective on Dispute Resolution in AboriginalCommunities in Queensland” (1994) 5 Australian Dispute Resolution Journal 28 at 35.182 McCallum, supra note 13, at 10.‘ Kulchyski, supra note 20, at 2.48whatsoever with the putting together of that game, the making up of the rules, in the appointment ofreferees and umpires.”84The courts in Canada, as in other colonized societies, rests upon a presumption of colonial sovereignty.’85Canadian law presumes that the Crown has, at some point in history, effectively asserted sovereignty overAboriginal peoples and the legitimacy of this assumption is rarely challenged by the courts.’86 Accordingto Brian Slattery, it is clear that Anglo-Canadian law “treats the question of when and how the Crowngained sovereignty over Canadian territories in a somewhat artificial and self-serving manner.”87 MennoBoldt and J. Anthony Long contend that courts in colonial societies have generally decided cases ofAboriginal rights in the interest of the dominant society rather than based on fundamental principles ofjustice.’88 They are of the opinion that colonial governments were “[m]otivated by racism, greed, and lustfor land” and deliberately disregarded the British and international laws which protected Aboriginalrights. They then add that:The Canadian courts, like those of New Zealand, Australia, and the United States, act ashandmaidens of the government, consistently giving precedence to the legitimacy and validity ofgovernment power, policies, and actions...The courts made aboriginal rights subject to the self-interest of the dominant group; theysubordinated fundamental principles ofjustice and human rights to the collective self-interest;and they legitimized the dominant group’s use of political and legislative power to deprive theaboriginal peoples of their rights and self-government.’89The consequences of this iiffluence of the state over the judicial system is described by John Borrows:[s]ince the judicial power often cascaded from the dominant group’s ideological headwaters, biasspills onto the pages of legal decisions from a contextualized, politically hued stream. The184 Satsan (Herb George), “The Fire Within Us” in F. Cassidy ed., Aboriginal Title in British Columbia:Delgamuukw v, The Queen (Proceedings of a Conference held September 1O& 11, 1991) (Vancouver:Oolichan Books and The Institute for Research on Public Policy, 1992) 53 at 54.185 See generally, M. Asch & P. Macklem, “Aboriginal Rights and Canadian Sovereignty: An Essay on R.v. Sparrow” (1991) 29 Alberta Law Rev. 498; P. Macklem, “First Nations Self-Government and theBorders of the Canadian Legal Imagination” (1991) McGill Law Journal 382; M.E. Turpel, “Home/Land”(1991) 10 Can. Journal of Family Law 17; McCallum, supra note 13, at 11.186 M. Asch and C. Bell, “Definition and Interpretation of Fact in Canadian Aboriginal Title Litigation:An Analysis of Delgamuukw” (1994) 19 Queen’s Law Journal, No.2, 503 at 526-527.187 B. Slattery, “Understanding Aboriginal Rights” (1987) 66 Can. Bar Rev. 727 at 735.188 Boldt and Long, supra note 109, at 183.‘89Jbid49ideological undertones ofjudicial decisions are revealed when viewed through the eyes ofcommunities that are disadvantages by the exercise of legalJohn Ciacca also believes that “. . .in interpreting the laws the courts generally reflect the mores ofsociety.”9’ Finally, James Youngblood Henderson describes the way in which western courts havecircumscribed Aboriginal rights:The courts became the caretakers of the racism of the late nineteenth and twentieth centuries.Such cowardice incurs an enormous cost. When governments act in a disorderly and lawlessway, their courts save face by classifying oppression as justice or confiscation as a politicalquestion. Either way, they remove the cause of action from their jurisdiction. ... In its approachto the rights of native peoples the law becomes tyranny at worst and an ineffective apologist atbest.’921.2 Judicial Ethnocentrism and BiasThe term “ethnocentrism” refers to the belief that “one’s culture represents the natural and best way to dothings and that it is, therefore, appropriate to evaluate other cultures on the basis of the precepts of one’sown.”93 Judicial ethnocentrism is therefore an example of non-neutral or biased judicial behaviourbecause it involves the use of stereotypes which classify on the basis of presumptions and generalizationsdefined by the dominant group.’94 In the context of Aboriginal claims, judicial ethnocentrism can beevidenced by the burden put on Aboriginal claimants to demonstrate that their law at the time of contactwas recognizable in British eyes and therefore reconcilable with British legal tradition.’95 According toAsch and has always been easier for British Courts to recognize ongoing legal rights in newly acquiredterritories where the local inhabitants had traditions and values similar to their own. Withcolonial expansion, the British acquired territories whose inhabitants had traditions, values and alifestyle quite different from their own. In these situations, the British courts typically failed to‘° J. Borrows, Constitutional Law Fron a First Nation Perspective: Self-Government and the RoyalProclamation (May 11, 1993) [unpublished] at 4.‘‘ Ciacca, supra note 126, at 557.192 J.Y Henderson, “The Doctrine of Aboriginal Rights in Western Legal Tradition” in Boldt and Longeds., The Quest for Justice: Aboriginal People and Aboriginal Rights (Toronto: University of TorontoPress, 1985) 185 at 220.Asch and Bell, supra note 185, at 510.‘°‘ S.L. Martin and K.E. Mahoney, eds., Equality and Judicial Neutrality (Toronto: Carswell, 1987) at iv;McCallum, supra note 13, at 20-21.M. Asch, Home and Native Land: Aboriginal Rights and the Canadian Constitution (Toronto:Methuen, 1984) at 42; McCallum, supra note 13, at 20.50address these differences in a relativistic sense, but rather, following the dictum of ethnocentrism,perceived them as indications of inferiority.’96One example ofjudicial ethnocentrism is illustrated by a comment of Chief Justice Davey in the BritishColumbia Court of Appeal decision, in Calder, in which he calls the Nisga’a nation “a very primitivepeople with few of the institutions of civilized society, and none at all of our notions of privateproperty”.’97 A similar comment was made by Chief Justice McEachern in Delgamuukw: “The plaintiff’sancestors had no written language, no horses or wheeled vehicles, slavery and starvation was notuncommon, wars with neighbouring peoples were common, and there is no doubt, to quote Hobbs (sic),that aboriginal life in the territory was, at best, ‘nasty, brutish and short’.”98 Chief Justice McEachernstated that the plaintiffs should understand that “...although the aboriginal laws which they recognizecould be relevant on some issues, I must decide this case only according to what they call the ‘white man’sAccording to Professor Brian Slattery, this last statement implies that the laws of one racialgroup occupy a privileged position in Canada and apply to Aboriginal people to their disadvantage and tothe exclusion of their own laws.20° Many authors have suggested that McEachern C.J. relied upon anoutdated anthropological premise known as the “acculturation theory” in reaching his conclusions.20’This theory posited that Aboriginal peoples were in a position of inferiority as compared to Europeansettlers, and that there would be an inevitable move away from traditional practices towards acculturationand assimilation into the dominant Western society.202 Professor Paul Tennant, in examining the decisionin Delgamuukw was of the opinion that in that case, the particular perceptions, assumptions, and values of196 Ibid197 (1970) 13 D.L.R. (3d) 64 at 66.‘ (1991) 79 D.L.R. (4th) 185 at 208. See discussion in D. Sanders, “Pre-Existing Rights: TheAboriginal Peoples of Canada” (August 30, 1995) [unpublished] at 22.‘99Ibid, at 201.200 B. Slattery, “The Legal Basis of Aboriginal Title” in F. Cassidy, ed., Aboriginal Title in BritishColumbia Delgamuukw v. The Queen (Vancouver: Oolichan Books and the Institute for Research onPublic Policy, 1992) 113 at 120.201 M. Kew, “Anthropology and First Nations in B.C.” (1994) 100 B.C. Studies 95 at 97; 3. Cruishank,“Invention of Anthropoiogy in British Columbia’s Supreme Court: Oral Tradition as Evidence inDelgamuukw v. B.C.” (1992) 95 B.C. Studies 25 at 31; M. Asch, “Errors in Delgamuukw: AnAnthropological Perspective” in F. Cassidy, ed., Aboriginal Title in British Columbia: Delgainuukw v.The Queen (Vancouver: Oolichan Books and the Institute for Research on Public Policy, 1992) 221 at 234.202 Kew, supra note 201, at 97.51the judge were arguably more important and influential than the facts and even the established points oflaw.203 He explains that:When minorities are small or marginal the majority often seeks to deny them express standing,and in so doing equates the interest of the whole society and political system with the interest ofitself, the majority. In these circumstances the members of the dominant group will often beunaware of the possibility that their deeply held beliefs about their own group and about theminorities are founded less on any objective reality than upon their own group’s desire to protectits own dominance. In these circumstances the judiciary will be the majority’s judiciary and mayeven provide the front line defense for majority interests.204The decision in Delgamuukw was also criticized as being ethnocentric for its judicial treatment of theanthropological evidence and the testimony of Aboriginal witnesses. Based on the decision in R. v.Simon205 where the Supreme Court of Canada held that oral history based on successive declarations bypersons now deceased was admissible since it could not otherwise be proved, McEachern J. admitted oralevidence in Delgamuukw which related to origin and territory.206 However, McEachern 3. placed verylittle weight upon that evidence, concluding that it represented “belief’ rather that “fact” and that it wasanecdotal, instead of historically entrenched in written form.207 Anthropologists have argued that thistreatment of evidence is subjective and ethnocentric, since it fails to recognize that Aboriginal culture wastraditionally orally based. Patricia Monture points out that “[t]he courts have tended to simplil’ theprocess of oral history and treat it as something less advanced than recording history on paper.”208 Afterreviewing the difficulties arising over the reception of oral history in cases involving treaties and landclaims, Delia Opekokew concluded that the Canadian judicial system, in its application of technical rulesof evidence, construction and procedure, has created an ethnocentric bias against Aboriginal witnesses.209Thus, the rules of evidence and particularly the application of these rules by the courts have not always203 P. Tennant, “The Place of Delgamuukw in British Columbia’s History-and Vice Versa”, in F. Cassidyed., Aboriginal Title in British Columbia: Delgamuukw v. The Queen (Vancouver: Oolichan Books andthe Institute for Research on Public Policy, 1992) 73 at 74.204 Ibid at 75.205 (1985), 24 D.L.R. (4th) 390 (S.C.C.); [1985] 2 S.C.R. 387.206RV Storrow and M.J. Bryant, “Litigating Aboriginal Rights Cases” in F. Cassidy ed. in AboriginalTitle in B.C.: Delgamuukw v. The Queen (Lantzville, B.C.: Oolichan Books, 1992) 178 at 184-185.207 (1991), 79 D.L.R. (4th) 185 at 242-5 1 for example.208 P.A. Monture, Monture-Okanee, “Reflecting on Flint Woman” in R.F. Devlin ed., CanadianPerspectives on Legal Theory (Toronto: Emond Montgomery Publications, 1991) 351 at 356.209 D. Opekokew, “A Review of Ethnocentric Bias Facing Indian Witnesses” Gosse, Henderson and Cartereds. in Continuing Poundmaker and Riel ‘s Quest (Saskatoon: Punch Publishing, 1994) at 192-205.52recognized Aboriginal values and traditions, making it more difficult for Aboriginal claimants to adduceevidence of their rights.Many commentators have noted that the views which are reflected in the Delgamuukw decision do notstand outside the dominant historical and cultural Canadians traditions. For instance, professor DouglasSanders writes that “[i]t would be wrong to ... dismiss the trial decision in Delgamuukw as an isolatedreplay of 19th century racism.”21°Michael Asch also notes that “...the Delgamuukw judgment is not arogue decision. It does not stand outside of Canadian legal precedent and tradition. Rather, this judgmentis in fact consonant with, if not fostered by, the tradition.”21’ Finally, professor Robin Ridingtoncontends that “[i]n Delgamuukw, Mr. Justice McEachem revealed a world view and an ideologyappropriate to a culture of colonial expansion and domination.”212 Thus, the views expressed byMcEachern J. appear to be a resurgence of an old tradition which has been suppressed from the politicaland legal discourse on Aboriginal issues for some time now. What is uncommon about JusticeMcEachern’s comments in Delgamuukw is therefore not so much the fact that these kind of ideas stillexist but rather that these views are being expressed in a court’s decision in the early 1990s.Thus, it appears that the different value systems and the background philosophy and predilections of mostof the judges, to whom Aboriginal people’s values and rights are foreign, can sometimes constitute anobstacle for Aboriginal parties in litigation.213 In fact, the judges hearing Aboriginal cases have generallybeen drawn from the white Euro-Canadian society and their status as impartial third-parties is oftenquestioned.214 As stated by Rosalie Siblerman Abella,[e]very decision maker who walks into a courtroom to hear a case is armed not only with relevantlegal texts, but with a set of values, experiences and assumptions that are thoroughly embedded.210 Sanders (Aug. 30, 1995), supra note 198, at 33.211 Asch (1992), supra note 201, at 238.212 R. Ridington, “Fieldwork in Courtroom 53: A Witness to Delgamuukw” in F. Cassidy, ed., AboriginalTitle in British Columbia Delgamuukw v. The Queen (Vancouver: Oolichan Books and the Institute forResearch on Public Policy, 1992) 206 at 212.213 See for example, J. O’Reilly, “Comprehensive Native Land Claims Litigation” in Native Land Issues(See You in Court...) (Winnipeg: Canadian Bar Association, April 28 & 29, 1989) at 2.214 Colvin, supra note 54, at 15; J.Y. Henderson, supra note 192, at 220.53The decision-making process takes place in cultural context, and that context may require adegree of ‘imperturbable disinterestedness’ of which not all are consistently capable.215Therefore, as suggested by MacGuigan in the text Equality and Judicial Neutrality, the role ofjudgescannot be merely neutral since it is an activity with a view to achieving the goals of the society in whichthe judge lives.216These examples serve to illustrate that the judicial system operates within the dominant culturalframework. It must however be noted that since 1973, there has been an increasing recognition by thecourts of Aboriginal rights but this movement is slow and remains limited in scope and uneven inapplication as the trial decision in Delgamuukw has demonstrated. Aboriginal issues continue to bedecided within the legal principles and precedents developed by and applicable to the Canadian legalsystem. The courts apply principles of western law and justice to Aboriginal questions and the judicialdecisions are a reflection of the Canadian justice system.217 For instance, most judges come from thedominant culture, the language of the court proceedings is the language of the dominant culture, thesubstantive rules of the court are the dominant culture’s rules, and the procedural rules of the court,including rules of evidence, are those of the dominant culture. Therefore, the Canadian courts generallydo not recognize the Aboriginal cultural framework, values, laws and interpretation of history. Thisconstitutes a considerable disadvantage for First Nations when their only option in terms of disputeresolution is to bring their claims before the very entity that denies the validity of their own reality.2. Procedural and Substantive Issues215 R. Silberman Abella, “The Dynamic Nature of Equality” in S.L. Martin & K.E.Mahoney eds., Equalityand Judicial Neutrality (Toronto: Carswell, 1987) 3 at 8-9.216 M.R. MacGuigan, “Sources of Judicial Decision Making and Judicial Activism” in S.L. Martin &K.E.Mahoney eds., Equality and Judicial Neutrality (Toronto: Carswell, 1987) 30 at 30.217 Mandell (1995), supra note 113, at 4-5; NOTE: “The English did not understand the native attitudetoward land, and rather than attempt an understanding, they simply imposed the common law system oneveryone, with no regard to possible incompatibility with the traditions of the native peoples. Since then,native rights in land have only been recognized when it has suited the Courts to recognize them, becauseof other overriding factors.” W.T. Badcock, Who Owns Canada? Aboriginal Title and Canadian Courts(Ottawa: Canadian Ass, in Support of the Native Peoples, 1976) at 35.542.1 Nature of the ClaimsThe field of comprehensive claims presents serious problems for the traditional court system. The likelycomplexity of any terms of settlement make such claims highly polycentric.218 These claims arepolycentric because they are multifaceted and each aspect of the claim is interrelated with every otheraspect. As mentioned in part I of this chapter, Fuller is of the opinion that polycentric problems, withmany interacting points of influence, are unsuited to resolution by adjudication. Adjudication is moreeffective when a single issue can be isolated and reasoned argument can be directed exclusively to it. Asstated by Colvin, “[w]hen any decision on one matter has complex repercussions with respect to othermatters, proceeding by proof and reasoned argument, with full participation of all affected parties, canbecome unmanageable.”219However, this is not to say that adjudication is never capable of handling polycentric problems.Polycentric elements are present in most disputes and to some extent can be accommodated. As stated byFuller, “[i]t is a question of knowing when the polycentric elements have become so significant andpredominant that the proper limits of adjudication have been reached.”22°Therefore, some comprehensiveclaims could still be successfully handled by the courts under certain circumstances. This assessmentshould be made in light of all the other factors which affect the handling of such cases by the courts.2.2 Jurisdiction, Procedure and RemediesThe courts do not have the jurisdiction and the procedural ability to deal effectively with comprehensiveclaims, which usually involve complex ideological, historical, social and political issues. This has beenwidely recognized by the courts, Aboriginal groups, governments and commentators.218 Colvin, supra note 54, at 15.2191bid, at 10; Fuller, supra note 165, at 401-403.220 Fuller supra note 165, at 398.55The Supreme Court of Canada said, on some occasions, that it considers the issue of Aboriginal landrights to be a mix of law and politics.22’ Chief Justice McEachern, in his trial judgment in Delgamuukwrecognizes the limitations of the judicial approach in relation to Aboriginal claims:The parties have concentrated for too long on legal and constitutional questions such asownership, sovereignty, and “rights”, which are fascinating legal concepts. Important as thesequestions are, answers to legal questions will not solve the underlying social and economicproblems which have disadvantaged Indian peoples from the earliest times.222Aboriginal objections to litigation have also stressed matters ofjurisdiction. For instance, the Associationof Iroquois and Allied Indians have stated that “. . .the courts decide only legal issues meaning moral andpolitical issues are disregarded.”223 Governments have also expressed the fear of a judicial outcome whichdoes not take account of the broader political and social issues raised by a claim.224One commentator, John Ciacca, contends that Aboriginal claims cannot be settled by the courts because“[t]hey do not deal with purely legal matters.”225 Ciacca describes the political and social factorsinvolved in Aboriginal rights cases:When you are discussing native claims, you are dealing with a wide spectrum of issuesencompassing: the cultural rights of a minority and the economic benefits which should beprovided to a disadvantaged minority. You cannot avoid becoming involved in a discussion ofthe impact of our society on the natives and the effects on them, for example, of ouradministration ofjustice. You must seek out methods to ensure the participation of a people inthe government process. You are called upon to find ways and means of assuring that a groupwith a different culture background can thrive and flourish in our society. Of course, one mustalso be constantly aware of the attitudes and demands of the non-natives in the territories whichare the subject of the settlement.226221 See Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313; Kruger and Manuel v. TheQueen, [1978] 1 S.C.R. 104; Guerin v. The Queen, [1984] 2 S.C.R. 335; Canadian PacUIc Limited v.Paul et a!., [198812 S.C.R. 654.222 (1991), 79 D.L.R. (4th) 185 at 537.223 Association of Iroquois and Allied Indians, The Indian Land Claims Resolution Process (AnInfonnation Paper) (Walpole Island, Ont.: March 1980) at 7.224 Colvin, supra note 54, at 15.225 Ciacca, supra note 126, at 557.2261bid, at 561.56Therefore, there seems to be a clear consensus among all these groups that the judicial forum is not themost appropriate means to resolve comprehensive claims since the courts do not have the jurisdiction todeal with the broader social, economic and cultural issues involved in this type of cases.The complex procedures of the court system also means that many technical impediments may interferewith the substantive issues or merits of the case. There are instances in Canadian history where it could beargued that Aboriginal claimants have lost their claims on procedural points. One well known example isthe Calder decision where one judge refused to rule on the substance of the case because the plaintiffs didnot have a petition of right or fiat to sue the Crown.227The federal govermrient also reserves the right to use any technical defences available to it which includereliance on statutes of limitation, the immunity of the Crown against civil actions with respect toinjunctions only, the supposed defence of “mere technical breach” and the legal doctrine of estoppel,acquiescence and laches.228 This approach is unfair since “[djelay in getting to court is not the fault of theclaimants. Twenty years ago there was little access to documents, no funding and no body of law tosustain such actions, and until 1951 any action to further native claims were prohibited.”229 Moreover,many commentators have noted that the reliance on technical defences to reject a valid claim is bothunfair and counterproductive in that it fails to deal with the underlying causes of the First Nationgrievances.230Finally, the judicial system does not provide the full range of remedial powers which would be necessaryto compensate valid comprehensive claims and to address the ongoing relationship between Aboriginaland non-Aboriginal societies. As stated by Lloyd Barber, “while some claims may be recognized by the227 R. MacGregor, Jhief The Fearless Vision of Billy Diamond (Markham, Ontario: Penguin Books,1990) at 112; B. Richardson, Strangers Devour the Land (Toronto: MacMillan, 1975) at 300-301, 303and 313.228 (1990), supra note 39, at 60; See also W. Henderson, “Litigating Native Claims”, (1985) 19 LawSociety of Upper Canada Gazette 174 at 191.229 ICO (1990), supra note 39, at 61.230 Ibid See also An Agendafor Action, supra note 3, at 28.57courts, legal remedies may not exist.”23’ In fact, the power of the courts to redress grievances is limitedand thus, “a court’s judgment cannot normally require parties to work together to co-manage resources orto share responsibilities, nor can it dictate, for example, that a First Nation receive as an alternative, lesspopulated lands as part of a land claim settlement.”232 In practice, the remedial powers of the courts indealing with Aboriginal land disputes include to render a decision on rights which may lead tonegotiation, to award monetary damages payable to the First Nation based on the court’s assessment, or togive an order directing the government to perform its duty, or directing or preventing some course ofaction.2.3 Aboriginal ParticipationIn the litigation process, the role of First Nations might sometimes be limited. In fact, the litigationprocess relies on representation through lawyers and on the testimony of expert witnesses, thus limitingconsiderably the direct participation of Aboriginal people in the resolution of their claims. First Nationsgenerally participate in litigation as witnesses, but without any control over the final decision. It is alsoimportant to mention that even legal representation has not always been easily available for Aboriginalgroups. For almost a century, Aboriginal people were often not represented in important cases whichaffected their rights. For instance, in St. Catherine ‘s Milling Co. Ltd. v. The Queen,233 the Privy Councilwas asked to decide whether the Indians surrendered timber rights to the federal or provincial governmentunder a treaty concluded between the Crown and a First Nation in Ontario. The Aboriginal nationinvolved in this case was not even represented by legal counsel and the Privy Council rendered a decisionwhich would have implications for Aboriginal rights for over a century and became a precedent uponwhich subsequent judgments have been based.234231 Commissioner, supra note 67, at 39.232 ICO (1994), supra note 152, at 17.233 (1889) 14 App. Cas. 46 (J.C.P.C.).234 L. Mandell, “Native Culture on Trial” in S.L. Martin & K. E. Mahoney, eds., Equality and JudicialNeutrality (Toronto: Carswell, 1987) 358 at 364.58Moreover, as mentioned in Chapter One, from 1927 until 1951, there was a statutory provision in theIndian Act which had the effect of prohibiting Indians from retaining legal assistance on their own whenthey asserted claims.235 Finally, until 1974, some provinces still had the requirement that Aboriginalclaimants needed to obtain a petition of rights from the Crown to institute proceedings against theCrown.2362.4 Burden of Proof and EvidenceIn Canada, the system of Aboriginal title litigation places the onus on Aboriginal groups to prove theexistence of a valid Aboriginal title. According to Louise Mandell, this decision is based on theassumption that the Crown’s ‘discovery’ of this continent gave it rights to the soil. Alternatively, theassertion is that the Crown conquered the Aboriginal nations by exercising jurisdiction over theterritoiy.237 The Crown then has the burden of proving that these rights were legally terminated beforethe recognition and affirmation of Aboriginal rights in the Canadian Constitution.238 The burden of proofon Aboriginal plaintiffs is problematic in two ways: the content of what must be proven and the method bywhich it is to be proved.239In order to win a land claim, Aboriginal groups must be able to bear an enormous burden of proof. In theCanadian history, there has evolved a set of tests that claimants of Aboriginal rights must meet in order to235 Section 141, Indian Act, R.S.C. 1927 c. 98 (originally enacted in S.C. 1927 c.32 s.6).; See also AnAgendafor Action, supra note 3, at 10.236 NOTE: Legislation governing this issue in Canada was enacted at federal level and in each of theprovinces at different times over a period of years until 1974. For a full discussion of this issue, see P.W.Hogg, Liability of the Crown, 2nd ed. (Toronto: Carswell, 1989) at 7-9; McCallum, supra note 13, at 35.237 NOTE: According to Mandell, “[t]he result of this manifestly arrogant assertion of power is that thecourts have said that the extent of Indian title depends upon the degree to which the Nation traditionallypossessed their lands.” Mandell (1987), supra note 234, at 359.238 R. v. Sparrow (1990), 70 D.L.R. (4th) 385 (S.C.C.) at 401 and 410. NOTE: Actions taken by thefederal government to terminate or limit Aboriginal rights by legislation or regulation after 1982 mustmeet a justification test. Once Aboriginal claimants prove the existence of a right and interference with itby legislation, the onus then shifts to the government to justify its actions. The Crown must prove a validlegislative objective and must further prove that the objective was attained in such a way as to uphold thehonour and fiduciary obligation of the Crown.239 Asch and Bell, supra note 186, at 521.59make their case. These tests have been stated by judges in a number of ways, but the most succinctexpression of them was provided by Mr. Justice Mahoney of the Federal Court in Baker Lake.24° Theelements which the plaintiffs must prove to establish an Aboriginal title cognizable at common law are (1)that the claimants and their ancestors were members of an organized society; (2) that the organizedsociety occupied the specific territory over which they assert the Aboriginal title; (3) that the occupationwas to the exclusion of other organized societies; and (4) finally, that the occupation was an establishedfact at the time sovereignty was asserted by England.24’Since 1980, the Baker Lake test has been applied,modified and interpreted differently depending upon the particular matter being heard.242 There arehowever serious problems with the enormous amount of data that must be collected to support landclaims.243 As stated by Elias:.the tests are becoming increasingly particular, to the point that if they are elaborated muchfurther, it would not be possible to meet them with any amount of research and data-gathering.The tests set out by Mr. Justice Steele in Bear Island, may have crossed the line of social sciencecomprehension. It is difficult to imagine what resources are available that could be used toreconstruct native practices at the time of the Royal Proclamation of] 763, and then to show thatthose practices were unique to the Temagami people, especially at the level of definition anddetail demanded by the court.244Further, anthropologists have argued that the test set out in Baker Lake is inherently ethnocentric becauseit implies, among other things, that there are some cultures which are so innately primitive that theycannot even be described as “organized”,245 Anthropologists therefore accuse courts of being steeped inan ethnocentric legal tradition, and criticize the courts for being apparently unable to develop new legaltests and attitudes which would embrace the notion of cultural relativism.246240 Hamlet ofBaker Lake v. Minister ofIndian Affairs and Northern Development, [1979] 3 C.N.L.R. 17(Federal Court, Trial Division).241 Ibid, at 45; See also Asch (1992), supra note 201, at 222; P. D. Elias, “Rights and Research: The Roleof the Social Sciences in the Legal and Political Resolution of Land Claims and Questions of AboriginalRights” (1989) 1 C.N.L.R. 1 at 4; D. Sanders, “Politics and Law - Land Claims in British Columbia”(Faculty of Law, UBC.: Aug. 15, 1995) at 9.supra note 241, at 6.243 NOTE: In the Delgamuukw trial, testimony was given by 61 witnesses at trial, and by about 70 moreon commission or by affidavit, Transcripts of evidence totaled about 35,000.244 Elias, supra note 241, at 27.245 Asch (1992), supra note 201, at 225.246 See generally B. Smith, “Obstacles to the Application of Anthropological Testimony in AboriginalClaims Litigation” (Victoria: December 4, 1995) [unpublished].60The second difficulty relates to the fact that Aboriginal plaintiffs must deal with a judicial system which isnot designed to handle crucial evidence which is generally of an historical and anthropological kind.247Given the volume and nature of the evidence required to prove historical fact and to meet the tests for titlediscussed above, special rules of evidence have been developed to assist the courts in the fact-findingprocess. Exceptions have been created to the hearsay rule to allow the admission of oral history passedfrom generation to generation and rules on opinion evidence have been relaxed to allow the opinions ofsocial scientists to be heard, Thus, the difficulty faced by Aboriginal claimants does not concern theadmissibility of evidence, but rather the weight or probative value to be given to such evidence.With respect to oral history, McEachern concluded in the trial judgment in Delgarnuukw that oral historywas faulty in that it was influenced by recent political trends and thus it was to be given little or noprobative value. Concerns relating to the frailty of human memory, the accuracy of the oral record, andthe role of culture (as distinct from historical fact) in the formulation of oral histories create a presumptionthat oral histories reflect subjective belief or “a romantic view of their history” which is not “literallytrue”. Quoting conflicting academic opinion on the accuracy of oral traditions and the influence of nonIndian narratives, McEachern C.J. concluded that oral history may only be usefhl “to fill in the gaps’ leftat the end of a purely scientific investigation.”248Moreover, there has also been extensive discussion concerning the acceptance of social scientists, such asanthropologists, as expert witnesses. Although the Supreme Court of Canada in Calder and Sparrowappeared to accept the testimony of anthropologists, other decisions, including the trial decision inDelgamuukw, have called into question their ethics and credibility. In Bear Island, for example, Steele 3.said that anthropologists “. ..were typical of persons who have worked closely with Indians for so manyyears that they have lost their objectivity.. ,,249 Similarly, McEachern C.J. in Delgarnuukw said that247 Colvin, supra note 54, at 15.248 Asch and Bell, supra note 186, at 540.249A..G (Ontario) v. Bear Island Foundation (1984), 15 D.L.R. (4th) 321 (Ont. H.C.) at 358.61anthropologist Dr. Mills was “...very much on the side of the Plaintiffs”250;he discounted Mr. Brody’stestimony on the ground that he did not qualify as being sufficiently objective251 and Dr. Daly wasdiscredited due to his adherence to the code of ethics of the American Anthropological Association whichstates that “in research, an anthropologist’s paramount responsibility is to those he studies.”252 Therefore,it appears that “[d]espite the creation of exceptions to rules of admissibility, judges continue to beinfluenced by familiar rules of evidence and the rationale for those rules, which render new forms ofevidence suspect.”253Thus, this short analysis of the courts’ rules of evidence reveals that there are, in some instances,problems with the resolution of Aboriginal land claims by the courts. It is possible that some Aboriginalland claims which might otherwise be successful in court will fail on the basis of difficulties in dealingwith evidence. The tests developed by the courts are obviously based on non-Aboriginal, colonial valuesand standards. The vast amount of evidence, the nature of the evidence and the rules of evidence createpractical difficulties. Further, the courts have, on some occasions, suggested that anthropologists lackobjectivity by the very nature of their profession, and that they will be unavoidably biased in favour of thesubjects of their research. This distrust of anthropological witnesses represents a significant obstacle to theapplication of anthropological findings in Aboriginal claims litigation.2542.5 Costs and DelaysGenerally, the courts have been a slow and expensive means of dealing with Aboriginal land claims. Forinstance, the Tlingit-Haida litigation in Alaska took over 33 years to resolve,255 the Calder case took fouryears, Sparrow took six and the trial in Delgamuukw lasted 374 days.256250 (1991), 79 D.L.R. (4th) 185 (B.C.S.C.) at 51.251 D. Cuihane, “Adding Insult to Injury: Her Majesty’s Loyal Anthropologist” (1992) 95 B.C. Studies 66at 74.252 Cited in Storrow and Bryant, supra note 206, at 186.253 Asch and Bell, supra note 186, at 533.254 B. Smith, supra note 246, at 11.255 Tlingit and Haida Indians ofAlaska v. United States, 389 F. 2d 778 (Ct. Cl. 1968).256 Elliot, supra note 19, at 163; Sanders (Aug. 15,1995), supra note 241, at 17.62The costs of those lengthy actions can be prohibitive, and few bands or Aboriginal organizations are in aposition to provide the necessary financial support.257 Research funds provided to bands and Aboriginalorganizations by the Department of Indian and Northern Affairs cannot be used for litigation without theconsent of the Minister. However, since the government’s land claims policy is to encourage negotiationrather than litigation, it might be difficult to receive such approval.258 Furthermore, when the federalgovernment simply refuses to fund Aboriginal litigants, it increases traumatically the pressure on theAboriginal groups to accept the federal position in negotiation.259It must however be noted that the experience over the last 15 years suggests that the relative costs anddelays of litigation are comparable to those of negotiation. Both processes are costly and time-consumingand these factors might become irrelevant in choosing between them.26°2.6 Lack of Control and ComplianceIn general, using the courts to achieve the resolution of a dispute is a highly risky adventure. “Unlike anegotiation process, in which both sides are assured of an outcome that will meet some of their needs, thecourt process has the potential to create clear winners and losers.”2 Therefore, there is a serious risk thatthe parties will be bound by an imposed decision which does not address the underlying needs of theparties and which will not be a mutually beneficial settlement for the parties.Moreover, even when Canadian courts rule in favour of an Aboriginal disputant on a specific issue,Canadian governments may resist the application of the new decision. According to Angus Murray,“[flaced with unfavourable rulings, governments have responded by ignoring or minimizing their policy257 NOTE: The Delgarnuukw case is estimated to have cost $25 million to bring to trial only. Asch andBell, supra note 186, at 533.258 Daniel, supra note 42, at 238.259 O’Reilly, supra note 213, at 41.260 Agendafor Action, supra note 3, at 80.261 A. Murray, supra note 80, at 58.63implications.” An example of this attitude on the part of a provincial government is the case of theMicmac Indians of Nova Scotia. The Micmac Indians had signed treaties with colonial powers in the1700s which ensured that both parties could pursue their respective economic activities withoutinterference from governments. However, after many decades of non-respect of their treaties and in lightof the aggressive enforcement of provincial fishing and gaming laws, the Micmacs finally decided to go tocourt to reassert the validity of their treaties:In 1985, the Supreme Court of Canada issued a landmark ruling stating that the Micmacs’ treatyrights to hunt and fish were still valid. Despite this ruling from the country’s highest court, theactions of the provincial govermnent have barely changed- Indians continue to be harassed,arrested and jailed for their hunting practices. After going through the court system to establishthe law, the Micmacs are now repeating the process to get the government to obey it. After theNova Scotia Supreme Court Appeals Division threw out subsequent charges for illegal salmonfishing in 1990, the provincial government finally threw in the towel and agreed to stop itsprosecutions; but not before the Native organizations were left “financially crippled.”2622.7 InjunctionThe courts’ attitude towards granting injunctive relief in Aboriginal land claims has been mixed. Indetermining which party would likely suffer the greater inconvenience if the applicant succeeded in itsapplication for an interim injunction, the courts have not always understood and thus given much weightto the arguments presented by Aboriginal groups. For example, in the Lubicon Lake case, the LubiconLake Aboriginal people made an application for an interim injunction to stop oil and gas developmentfrom occurring on their traditional lands, as it would destroy their homelands and livelihoods.263 JusticeForsyth wrote in his judgment:.1 am more than satisfied that the respondents would suffer large and significant damages ifinjunctive relief in any of the forms sought by the applicants were granted. Furthermore, therespondents would suffer a loss of competitive position in the industry vis-â-vis the position ofother companies not parties to this action. That loss coupled with the admitted inability of theapplicants to give a meaningful undertaking to the court as to damages ... reinforces my decisionthat injunctive relief in this case is not appropriate.264262Jbid, at 62.263 Ryan and Ominayak, supra note 37, at 352.264 Lubicon Lake Bandy. R. (1983), 29 Alta. L.R. 9 (2d) 151 at 158 (Q.B.) Judgment of Forsyth J.64According to Ryan and Ominayal.c, the comment on the inability to pay of the Lubicon people reflects thejudicial bias against Aboriginal people. The authors contend that the poor cannot look to the courts forinjunctive relief against the rich and as a result there exists not only a racial bias but a class one as well.265Another example of an Aboriginal group seeking an injunctive relief is the case of the James Bayhydroelectric project where the Quebec Superior Court ordered the halt of the project. However, Quebecofficials argued that the injunction costs them one million dollars a day and the Court of Appeal decidedto lift the injunction pending a full hearing.266 The Quebec Court of Appeal did not believe the evidenceof the Aboriginal plaintiffs and the environmental consequences predicted for the project by the scientificwitnesses of the plaintiffs, even though the Court of Appeal did not hear any of the witnesses. Accordingto James O’Reilly, “[t]his is a tough obstacle for aboriginal litigants to overcome because it is basedfundamentally on judicial predisposition.”267In MacMillan Bloedel v. Mullin,268 both the First Nation and the logging company sought injunctions,one side to stop Aboriginal protests, the other to halt logging, pending the resolution of the dispute overAboriginal title. Mr. Justice Gibbs of the British Columbia Supreme Court rejected the First Nationarguments, “noting the potential impact of similar injunctions on other land in the province.”269However, this decision went to the Court of Appeal where injunctions were granted against both the FirstNation and MacMillan Bloedel pending a resolution of the Aboriginal title issue.270 In this decision,Justice Seaton said:It has also been suggested that a decision favourable to the Indians will cast doubt on the tenurethat is the basis for the huge investment that has been and is being made. I am not influenced bythe argument. Logging will continue on this coast even is some parts are found to be subject tocertain Indian rights. It may be that in some areas the Indians will be entitled to share in oneway or another, and it may be that in other areas there will be restrictions on the type of logging.265 Ryan and Ominayak, supra note 37, at 356.266 Sanders (1989), supra note 56, at 716-717.267 O’Reilly, supra note 213, at 23-24.268 MacMillan Bloedel v. Mullin, [1985] 2 C.N.L.R. 26 (B.C.S.C.)269 Sanders (Aug. 15, 1995), supra note 241, at 11.270 MacMillan Bloedel, [198512 C.N.L.R. 58 (B.C.C.A.) at 69.65There is a problem about tenure that has not been attended to in the past. We are being asked toignore the problem as others have ignored it. I am not willing to do that.27’In the years following the MacMillan Bloedel decision, other interim injunctions were granted to preventlogging and other activities pending resolution of Aboriginal land claims.272 The problem with judicialfindings based upon the “balance of inconvenience” is that they are generally based upon subjectiveevaluations of what is important and of value. The courts sometimes equate inconvenience with financialloss. However, for Aboriginal people the loss of their land involves not only a loss of income but a loss ofa way of life.273 The focus of the courts on financial loss reflects the values and priorities of non-Aboriginal cultural priorities at the expense of those of Aboriginal claimants.B. Benefits of LitigationDespite the serious difficulties with the litigation process, there are clearly situations where the judicialsystem is the chosen solution to resolve comprehensive claims, for instance when the parties are unable toreach agreement through negotiation, or simply when the disagreement on some issues is so fundamentaland so divisive that compromise is impossible and less authoritative decisions unacceptable.274 Itherefore propose to explore some of the advantages of litigation in order to assess the role which thecourts currently play and could play in the future in dealing with Aboriginal land claims.1. Strategic Advantages1.1 Binding PrecedentsThere is a clear advantage in bringing a land claim through the court system if it has the potential ofbeing a favorable precedent-setting case. The principal benefit is that a favourable decision of the court2711bid, at 73.272 See for example, Fasco v. Canadian National Railway, [1986] 1 C.N.L.R. 34; Hunt v. Ha/can (1987),34 D.L.R. (4th) 504 (B.C.S.C.); [1987] 4 C.N.L.R. 63.273 Ryan and Ominayak, supra note 37, at 354.274 Daniel, supra note 42, at 238.66will become binding precedent upon other courts in the jurisdiction.275 Even if the decision is notfavourable to the claimants, the judgment may nevertheless contain valuable obiter dicta which can beargued in subsequent cases, and which could be influential outside the courts.2761.2 Changes in Government’s Claims PoliciesJudicial decisions have also the potential of influencing the government’s land claims policies. Accordingto Peter Douglas Elias, “as questions of law are settled by the courts, their determination are reluctantlyincorporated into government policy.” 277 In fact, prior to the Calder decision, the federal governmentpolicy on Aboriginal title was to deny its existence. The decision in Calder forced the government toreassess its position and on August 8, 1973, it issued the first ‘statement of policy’ regarding Aboriginallands in which it agreed to negotiate land claims with certain Aboriginal groups in Canada.1.3 Impetus for NegotiationBuilding favourable precedents can also have a significant impact on the negotiation process. The courtscan play a significant role in defining Aboriginal rights in a manner as to discredit the most extremenegotiating positions of both sides and laying the necessary foundation for the initiation of effective andrealistic discussion.278 As stated by Louise Mandell, “courts could have a role in building the foundationfor meaningful political negotiations between the Indian Nations and the Crown.”279 Thus, litigation canprovide Aboriginal claimants with a substantial degree of bargaining power in negotiations.275 NOTE: In the Australian decision of Mabo v. Queensland (No.2) (1992), 107 A.L.R. 1 the HighCourt overturned 150 years of precedent which had consistently denied the application of Aboriginal titlein Australia. The High Court’s decision is now a binding precedent upon all inferior courts in thatjurisdiction.276McCallum supra note 13, at 44.277 Elias (1989), supra note 241, at 3.278AnAgendaforAction, supra note 3, at 25 and 84-85; Daniel, supra note 42, at 238.279 Mandell (1987), supra note 234, 358 at 365; See also R. Cavanagh and A. Sarat, “Thinking AboutCourts: Toward and Beyond a Jurisprudence of Judicial Competence” (1980) 14 Law and Soc. Rev. 371,at 373.67Sometimes, only the threat of an imposed decision can spur negotiation and compromise.28°For instance,in the James Bay case, the Quebec government was initially unwilling to negotiate with the Crees andInuit since it “...saw no threat from the indigenous people, no realistic means by which they could alter thecourse of action which the Quebec government was pursuing, and it therefore felt no need to give upanything it valued, no need to compromise. In short, it really was not ready to negotiate.”28’However, afew days only after the claimants were successful in their injunction before the Quebec Superior Courtagainst the Quebec government, the province agreed to negotiate and proposed a settlement to the Creeand Inuit within two weeks.282 Thus, the court action pushed the provincial government to negotiate andalso provided significant leverage to the Aboriginal claimants in the negotiation process. Billy Diamondcontends that if they had lost their case before the Superior Court of Quebec, “it is highly improbable thatthe Crees would have obtained anything near what we did through that agreement.”283As with the James Bay case, it has been suggested that in both the Calder case and the Delgamuukw case,the real intention of the Aboriginal groups were to use the courts to force governments in takingAboriginal issues seriously. According to Professor Douglas Sanders,The Gitksan and Wet’suwet’en were trying to get land claims negotiations going. Land claimshad been stalled in British Columbia since 1973. The plaintiffs in both cases were seekingnegotiations with governments. But Indians needed some recognition of rights - some cards -some status - if negotiations had any chance.284This incentive to negotiate was also discussed by the Supreme Court of Canada in Sparrow, in which thejudges referred to the Calder decision as a case in which the court system had played a positive role inbringing pressure on the federal government to move on the land question.285 Courts therefore can be2801bid, at 394-411; See also Colvin, supra note 54, at 12; McCallum, supra note 13, at 45.281 Feit, supra note 161, at 161.282 NOTE: The Quebec Superior Court order for an injunction was overturned on appeal. Feit, supranote 161, at 162; Sanders, (Aug. 15, 1995) supra note 241, at 8; B. Diamond, “Aboriginal Rights - TheJames Bay Experience” in Boldt & Long eds., The Questfor Justice: Aboriginal Peoples and AboriginalRights (Toronto: University of Toronto Press, 1985) at 265; Feit, supra note 161, at 162.283 Diamond supra note 282, at 272.284 Sanders (1992), supra note 158, at 281-282.285 Ibid at 280 and 282.68used, under the right circumstances, to provide bargaining leverage rather that acting as decisionmakers.2862. Public Sphere2.1 Public OpinionAnother advantage for Aboriginal claimants in using the judicial system to resolve their claims is that thecourts are public and attract the scrutiny and interest of the media and the general public. Favourablemedia coverage can be a more valuable means of provoking a political will to settle rather than pursuingbefore the courts. As stated by Fleras and Elliot, “the Canadian public has likewise been instrumental inexerting pressure for changes in the aboriginal agenda.”287 An example of a successful attempt in gainingpublic support is with the Cree of James Bay which attracted substantial national and international mediaand public support for their claim in 1973 288 Another example of the influence of the media is theinquiry on the Mackenzie Valley Pipeline where Tom Berger organized national media coverage of thecommunity hearings held in First Nations villages. Berger supported Aboriginal claims, his reportbecame a best seller and killed the pipeline project.2892.2 International DiscourseThere is great opportunity for the courts in common law jurisdictions to influence each other in respect ofAboriginal title by drawing on each other’s precedents. For instance, such an exchange has beenhappening between Australia and Canada for some time now. Canadian case law is frequently referred toin Australian decisions and vice versa. As stated by Richard Bartlett “...Canadian and Australian courtscan now engage in a valuable discourse in the area of law affecting Aboriginal peoples.”29°This couldhave significant advantages for Aboriginal groups in Canada. For instance, if one decision is made in286 E. H. Norton, “Bargaining and the Ethic of Process” (1989) 64 New York University Law Review,No.3, 493 at 497.287 Fleras and Elliot, supra note 63, at 119.288 MacGregor, supra note 227, at 172 and 178; McCallum, supra note 13, at 47.289 Sanders (1989), supra note 56, at 717.290 R.H. Bartlett, “The Landmark Case on Aboriginal Title in Australia: Mabo v. State of Queensland”(1992) 3 C.N.L.R. 4 at 19.69another common law jurisdiction which expands the concept of Aboriginal title and rights, this mayencourage Canada to follow suit.29’Part m Appropriateness of LitigationIt is clear that there are circumstances where adjudication is an appropriate process to resolve Aboriginalland claims. Thus, the questions become: How to deal with problems such as judicial ethnocentrism andbias? When and in what circumstances should issues be left to the courts to decide? How can the courtsplay a more productive role?A. Cultural RelativismThere are no easy solutions to the problems of ethnocentric biases. May be the only way to combat thejudicial ethnocentrism is to “make the different world view of the Indian Nations visible”292 and to call forreasoning by the courts based on cultural relativism. Perhaps in this manner it would be possible toconvince judges that “...all cultures are equally worthy of respect and must be understood on the basis oftheir own value systems.”293 Judges hearing Aboriginal cases must “...hear evidence before them with anopen mind so that they can understand another world view as it is understood by the Indians.”294 The useof an analytical framework based on cultural relativism could increase “objectivity, empathy, andinformed judgment”295 which are essential qualities for anyone who wants to understand the lifestyle ofanother society. “The law should cease to interpret historical fact in a way which favours the perceptionsof one culture over those of another.”296 However, this would not totally eliminate the possibility ofethnocentric reasoning, since legal precedents, based upon the Baker Lake test, would probably stillinfluence the reasoning of the judges. For this reason, some anthropologists have argued that the only291 McCallum, supra note 13, at 49.292Mandell (1987), supra note 234, at 358.293 Asch (1992), supra note 201, at 229. Asch and Bell, supra note 185, at 516.294 Mandell (1987), supra note 234, at 365.295D Bates and F. Plog, CulturalAnthropology, 3d ed. (New York: McGraw-Hill, 1990) at 17.296 Asch and Bell, supra note 185, at 549.70way to eradicate ethnocentrism in Aboriginal claims cases would be to completely abandon the BakerLake line of case law.297There is also no easy solution to the problems raised by legal treatments of oral history. One can onlyhope that the courts will adopt a consistent approach in accepting and relying upon oral history inAboriginal cases. In fact, both the decisions in Simon and Sparrow suggest that “...where evidenceregarding aboriginal rights is equivocal, but not unconvincing, the confines of the law should be extendedto resolve evidentiary issues on the side of the aboriginals.”298 At the same time, it is conceded byAboriginal advocates that a strategic attempt should be made to separate “unorthodox” oral histories fromthose which are more likely to be accepted by the court as factual in nature.299 Such an approach wouldlessen the likelihood of a judge dismissing the totality of oral evidence as being romanticized, orunreliable.Finally, the courts should not dismiss the entire field of anthropology solely on the mistaken assumptionthat direct and close contact with Aboriginal peoples necessarily perverts anthropological findings.Anthropologists assert that the focus should instead be on the rigour and quality of the research beingpresented, as assessed within the discipline itself. Although this would not guarantee absolute objectivity,bringing evidence under the scrutiny of other anthropologists would at least guarantee comparability inthe evaluation of ideas and testimony. 300297 Asch (1992), supra note 201, at 240. B.D. Cox, “The Gitskan- Wet’suwet’en as ‘Primitive’ PeoplesIncapable of Holding Proprietary Interests: Chief Justice McEachern’s Underlying Premise inDelgamuukw” (1992) 1 Dalhousie Journal of Legal Studies 141 at 146.298 Storrow and Bryant, supra note 206, at endnotes 33 at 191; see also Elias (1989), supra note 241, at22.299 Storrow and Bryant, supra note 206, at 185.300 Kew, supra note 201, at 100; Asch (1992), supra note 201, at 237. NOTE: Some institutional andprocedural refonns have been suggested to enhance the perceived objectivity of anthropologists, such aspre-heanng anthropological discussions and intermediary anthropological boards. See B. Smith, supranote 246, at 16-17.71The seriousness of these issues has led many to conclude that there exists no solution to these problemsand thus, the courts are not an appropriate forum for the resolution of Aboriginal land claims. LambertJ.A. stated in his dissent in Delgamuukw: “I can think of no way around the problems in relation tohistorical and anthropological evidence except to try to avoid those problems by settling the existence andscope of rights by a process of negotiation, including the use of resources of mediation and commissions ofinquiry.”30’However, since it is most likely that Aboriginal cases will continue to be referred to Canadian courts -unless the federal government creates an independent land claims body with power of adjudication- theremust be concrete actions taken to resolve these critical issues. As suggested by the Indian Commission ofOntario, a first step could be that judges “ given specialized training, perhaps sponsored by theJudicial Council of Canada in conjunction with Indian organizations, before being assigned to an Indiancase.”302 Gerard V. LaForest also suggested that:Legislation could remove many of the limitations of the courts as a mechanism for resolvingclaims. The laws of evidence could be modified in their application to claims, norms ofhonourable conduct associated with the Crown’s relation to Indians could be articulated inlegislation, and defences respecting limitation periods (insofar as these may be relevant) could beabolished.303The following discussion will explore other ways to circumvent some of the problems with the litigationapproach.B. Combining Litigation and APR MechanismsIdeally, litigation should be employed in conjunction with other alternative dispute resolutionmechanisms, as litigation and other dispute resolution processes are interrelated parts of a total process.304301 Delgamuukw v. The Queen (1993), 104 D.L.R. (4th) 470 (B.C.C.A.) at 697.302 ICO (1990), supra note 39, at 105.303 LaForest, supra note 85, at 20.304 NOTE: This total process is one that “...starts with a perception of rights, a realization that theserights are being thwarted or denied, the formulation of a claim, the initiation of discussions, recognition ofthe claim to the point where negotiations begin, or threat of court action or other consequences to provokea negotiating response.” An Agendafor Action, supra note 3, at 78.72The court system can be used as part of a series of actions having for objective the resolution of the landquestion. “[R]esort to the Courts should be part of an overall strategy with alternative scenarios planned inadvance.”305 According to professor Douglas Sanders, litigation is a bad strategy only if it is seen inisolation from other actions and strategies.306 This has also been recognized by Mr. Justice MacFarlane inMacMillan Bloedel v. Mullin: “I think it fair to say that, in the end, the public anticipates that the claimswill be resolved by negotiation and by settlement. This judicial proceeding is but a small part of the wholeof a process which will ultimately find its solution in a reasonable exchange between governments and theIndian nations.”307It is also possible to combine other dispute resolution mechanisms within the process of litigation itself.For instance, in the United States, courts have occasionally used special masters to help manage complexcases in an effort to circumvent the several obstacles of litigation. The traditional role of masters hasinvolved render accountings, presiding over hearings and making findings of fact and recommendations.More recently, masters have also been acting as facilitators and mediators.308 Some American courts havecreated programs, known as Early Neutral Evaluation Programs (ENE), which are based on the use ofspecial masters. These programs work in the following way:ENE session is a confidential, non-binding evaluation conference, attended by counsel, theirclients, and a neutral member of the private bar who has substantial litigation experience, andwho is an expert in the subject matter of the lawsuit. The ENE session takes place early in thepretrial period so that the parties can use what they learn during the session to make the case lessexpensive and time-consuming. 309305 O’Reilly (1989), supra note 213, at 39.306 Sanders (1992), supra note 158, at 283.307 [1985] 2 C.N.L.R. 58 (B.C.C.A.) at 77.308 Nolan-Haley, supra note 167, at 186.309 NOTE: Many courts in the United States are now using special masters to help facilitate settlement.These programs, known as Early Neutral Evaluation Programs (ENE) have been instituted, among otherplaces, in the Northern District of California, the Eastern District of California, the Southern District ofCalifornia, the Northern District of Indiana, the Eastern District of New York, the Northern District ofOhio, the Western District of Tennessee, and the Western District of Wisconsin. B.J. Roth, R.W. Wulif,and C.A. Cooper, The Alternative Dispute Resolution Practice Guide (New York: Lawyers CooperativePublishing, 1993) at 1:11; W.D. Brazil, “Special Masters in Complex Cases: Extending the Judiciary orReshaping Adjudication?” (1986) 53 Univ. of Chicago Law Review, No. 2, 394; W.D. Brazil, “A CloseLook at Three Court-Sponsored ADR Programs: Why They Exist, How They Operate, What They Deliver,and Whether They Threaten Important Values” (1990) Chicago Legal Forum 303.73One of the most well-known case where a special master was appointed as settlement facilitator involved adispute over the Great Lakes fishing rights.310 This complex dispute over the fishery allocation plan inthe Great Lakes had a twelve year litigation history and involved many parties including several tribes ofIndians asserting rights based on nineteenth century treaties, the Secretary of the Interior, the MichiganDepartment of Natural Resources and the non-Indians fishing interests. The judge decided to appoint, inconsultation with all parties, a special master after recognizing the following problems with the fishingrights case: (1) the litigation would require processing and analysis of enormous amount of economic,scientific, and environmental data; (2) the parties were intensely hostile toward one another, and; (3) theissues were polycentric and the case had great political sensitivity.31’Moreover, because of the continuingrelationship between the parties, it was estimated that any court-imposed solution would likely generatefuture conflict. Thus, the judge decided that these characteristics urged for an agreed settlement through aprocess of integrative negotiation.312 The chosen special master was given the mandate to manage thepretrial case development within eight months and to facilitate settlement efforts. The master duties didnot include ruling on substantive issues, and all his decisions were subject to review by the federaljudge.313 It is argued that delegating responsibility for the discovery phase to a master has the followingadvantages:First, decisions of higher quality, based on familiarity with all circumstances, may be reached,and often can be delivered more promptly. Second, the master’s thorough understanding mayalso contribute to more consistent rulings. (...) Finally, a knowledgeable master who enjoys theparties’ confidence is well positioned to suggest cost-effective, cooperative methods for sharing oracquiring information.314310 For a discussion of the Great Lakes dispute, see F.E. McGovern, “Toward a Functional Approach forManaging Complex Litigation” (1986) 53 Univ. of Chicago Law Review, No.2, 440 at 456-468.311 NOTE: The special master was of the opinion that the case presented a classic example of apolycentric problem which could not be easily resolved in an adjudication process. He wrote that: “Thesolution to any given question concerning resource division was dependent upon the solutions reached onthe other questions; no issues were independent. This complex interrelationship of issues createddifficulties which were compounded by the lack of any - much less clear- legal standards. The court wasbeing asked to make extremely complex management decisions by using policy differences unreflected inthe substantive law.” McGovern, supra note 310, at 459-460; See also Brazil (1986), supra note 309, at410.312 MCGOVern supra note 310, at 459.313 Ibid at 458.314 Brazil (1986), supra note 309, at 411.74Moreover, the familiarity with the issues that the special master developed in dealing with the case alsohelped the facilitation of a settlement. It is suggested that “by assigning a special master as settlementfacilitator, the court can foster a negotiated disposition yet avoid either appearing prejudiced by counsel’sbehavior in negotiations or by matters learned off the record, or appearing to abuse the power it wouldhave at trial to pressure parties into accepting settlements.”315 Thus, contrary to a judge, a special masterusually tries to get the parties to “look for steps they might take, perhaps in concert, that would create netgains for both sides. He also tries to shake up assumptions and compel dialogue along holistic rather thatfragmented lines.”316 In the fishing rights case, the special master helped all parties to appreciate thelimits on what they could expect to achieve even if they won at the trial level and demonstrated that byusing a negotiated settlement to resolve their dispute, they could all “secure valued ends that could not bepart of a court-imposed judgment.”317 Using a computer-assisted negotiation model, the parties reachedan agreement after only three days of negotiations. The court approved the settlement, but one of theIndian tribes overruled its negotiators and decided to proceed with the litigation while all the other partiesratified the negotiated agreement. The judge ruled on the merits in favor of the negotiated plan.318Another example where a special master was appointed in a dispute involving Aboriginal rights was inUnited States v. Suquamish Indian Tribe (1990) where the Ninth Circuit Court of Appeals assigned aspecial master to determine whether the Suquamish Indian tribe could assert the fishing rights of anothertribe as a successor in interest.319I submit that lessons should be learned from these positive experiences in appointing special masters. Infact, most Aboriginal claims cases involve the processing of vast amount of complex evidence, the issuesare generally highly political and the parties are involved in a continuing relationship. Thus, theIbid3161bid, at 412.317 Ibid.318 McGovern, supra note 310, at 465-466; Nolan-Haley, supra note 167, at 188.319 Nolan-Haley, supra note 167, at 185-186.75combination of a form of mediation as part of the litigation process would allow a person with asophisticated understanding of a complex case to help the parties in narrowing the issues by findingsolution benefiting all parties and building trust and effective communication between First Nations,governments and third-party interests. This approach could also accelerate the process and reduce thecosts of litigation.C. Improving the Role of the Courts in the Context of Aboriginal Land Claims1. Fundamental Legal IssuesLitigation becomes an inevitable step to answer fundamental legal questions underlying Aboriginal landclaims when the parties cannot agree among themselves. Thus, the courts should be used to solve centrallegal questions such as whether Aboriginal rights exist or have been extinguished and the meaning ofthese rights in contemporary Canada. 320 However, for this to be a realistic option, funding for FirstNations should be available on the same basis as it is under the negotiation process.2. ImplementationOnce these questions have been answered, there remains the arduous task of completing the detailedarrangements necessary to implement the decision. The courts should play the crucial role in ensuringthat decisions are to be implemented fairly and efficiently.32’ A special committee of the Canadian BarAssociation has suggested that the courts, in appropriate cases, go beyond the determination offundamental legal rights to oversee their implementation as well. “The shadow of the court may lead theparties to the light of day”. The CBA committee made the following recommendations with respect tojudicial remedies:It is recommended that serious study be given to making judicial remedies more effective inensuring that both government policies and judicial decisions are fully implemented in relation toaboriginal rights and claims. This would require making injunctive relief available against theCrown, enabling remedies in rem to be given against the Crown, empowering the courts torequire the Government to enter into good faith negotiations, and employing positive injunctiverelief - the so-called structural injunction - in appropriate cases.322320AnAgendaforAction, supra note 3, at 85.321 Ibid.322 Ibid.76ConclusionIt is important to recognize and appreciate both the benefits and shortcomings of the court system indealing with Aboriginal land claims. The courts can play a role in the resolution of the land question.Since the Calder decision in 1973, there has been an increasing recognition by the courts of the issuesinvolved in the land question. The courts now can play a critical role in forcing governments to take theland question seriously and in increasing the public awareness on these important issues. The courtsystem can also be an effective option for Aboriginal groups when governments are unwilling to negotiate,to clarify certain legal positions, or when disagreement on some issues is so divisive that compromise isimpossible. Furthermore, the threat of litigation can spur negotiations and provide significant bargainingleverage to Aboriginal claimants during negotiations.However, the judicial system also brings serious problems in the resolution of Aboriginal disputes. Insubmitting land claims to the courts, Aboriginal people submit themselves to a foreign culturalframework, and a formal technical system, in which they have the onus of proving traditional title underrules that are unclear and changing. Further, due to the fact that land claims are polycentric problems andusually involve complex ideological, historical, political and social issues, the court system lacks thejurisdiction to effectively deal with these matters and the courts’ rules of evidence are generally notdesigned to handle the complex historical evidence raised by these claims.Litigation remains an alternative for some types of Aboriginal claims, but its weaknesses have beenrecognized for some time. The issues involved in the land question are very basic and fundamental to thelives of both Aboriginal and non-Aboriginal peoples in Canada and it is hoped that they will be resolvedthrough direct non-adversarial communication between all affected by these disputes. New efforts todevelop appropriate mechanisms of dispute resolution should be made. In this chapter, I have discussedthe option of appointing a special master in an effort to circumvent some of the obstacles of litigation.There also exist other options, including the creation of an independent Aboriginal land claims bodywhich would combine the process of mediation, negotiation with some powers of adjudication. Thisoption will be further explored in Chapter Six of this thesis.7778CHAPTER THREE NEGOTIATIONAboriginal groups, academic commentators, judges and governments, though for different reasons,generally regard negotiation as the most appropriate mechanism for the resolution of Aboriginal landclaims and other dispute involving governments and Aboriginal peoples. In fact, at present, both thefederal comprehensive and specific land claims policies provide for a structure of negotiation to resolveoutstanding land claims. Negotiation is perceived as a fair process for the resolution of comprehensiveclaims since it requires both parties coming to the negotiating table on a voluntary basis and maximizesdirect participation by Aboriginal claimants. As stated by a special committee of the Canadian BarAssociation, “...aboriginal people are accorded an equal position at the bargaining table, which theyperceive to be consistent with their understanding of their original relationship with the Government.”323Further, direct negotiation is considered the most appropriate process due to, among other things, thepolycentric nature of comprehensive claims, and the nature of the relationship between the parties.However, despite this preference for the negotiation process, it is arguable whether the process has beensuccessful. The numerous problems with the federal land claims processes have been widely recognizedand discussed over the past 20 years.324 In a 1990 discussion paper in relation to land claims, the IndianCommission of Ontario stated that “Canadian law and Canadian government policy does not begin tomeet Indian aspirations (...) Without a policy and a process which is able to provide fair and expeditiousresolution of Indian land claims, we can expect to see recurrences of the desperate alternative we havewitnesses occurring at Oka and elsewhere.”325323 AgendaforAction, supra note 3, at 78324 NOTE: There has been several studies, reports, and proposals for Aboriginal land claims reform.These include Living Treaties: Lasting Agreements, supra note 8; Agenda for Action, supra note 3; ICO(1990), supra note 39; Jamieson, supra note 161; Leghorn, supra note 90; McCallum, supra note 13;ICC, supra note 12; Morris, Rose and Ledgett, “Analysis of Canada’s Comprehensive and Specific ClaimsPolicies and Suggested Alternatives” (Draft paper prepared for the Royal Commission on AboriginalPeoples, April 1994).325 ICO (1990), supra note 39, at 3 and 5.79The purpose of this chapter is to explain the various reasons for these difficulties. I should only mentionat the outset that the literature regarding negotiation theories suggests that two fundamental conditionsmust be met for negotiation to be successful in terms of objective fairness. Firstly, both parties must havea strong common interest in achieving a mutually acceptable settlement, and secondly, there must berelative equality between the parties. 326 In Aboriginal claims negotiations, however, there is neitherequality between the parties, nor is there always the presence of a strong common interest. Thus,although negotiation appears to be an attractive option, the nature and the extent of the power imbalancebetween the parties will have to be addressed for equitable negotiations to take place, both in terms ofprocess and outcomes.This chapter is divided into three parts. In Part I, I will briefly describe the two main models ofnegotiation and apply these theories to the Aboriginal land claims context. Part II will examine thecurrent reality of the negotiation process and identify the major problems with the existing land claimspolicies. Finally, in Part III, I will suggest some strategies to improve negotiations between First Nationsand governments and look at a conceptual approach to empower Aboriginal people in the negotiationprocess.Part I Characteristics and Theories of NegotiationA. Theories of Negotiation1. DefinitionNegotiation may be generally defined as a consensual bargaining process in which parties attempt to reachagreement on a disputed or potentially disputed matter. The purpose of negotiating is for parties toachieve an advantage which is not possible by unilateral action.3272. Models of Negotiation326 Colvin, supra note 54, at 5; D. Druckman, Negotiations: Social - Psychological Perspectives(London: Sage, 1977) at 215; McCallum, supra note 13, at 93.327 Nolan-Haley, supra note 167, at 13.80The literature regarding negotiation in the context of Aboriginal claims generally uses the word“negotiation” as a generic term. However, the literature on negotiation identifies two types of negotiation:dispute negotiation or transactional negotiation. Transactional negotiation involves parties planning for afuture event and dispute negotiation involves parties who are in conflict over an event which hasoccurred.328 It is further suggested that the issues in dispute negotiation are generally susceptible toresolution by adjudication, such as by a judge or an arbitrator, while the issues in transactional negotiationshould be resolved by the parties themselves.329Further, the negotiation literature identifies two approaches to negotiation. Negotiation theorists arecomparing and contrasting two distinct negotiation strategies: the competitive strategy (or adversarial,distributive)330 and the non-competitive strategy. The non-competitive strategy can be subdivided intotwo different approaches: the cooperative strategy and the integrative strategy (or principled, interests-based, problem-solving).33’2.1 Competitive StrategyThe primary assumption of competitive theoiy is that the community is governed by egocentric self-interest. Thus, the basic premise underlying the competitive strategy is that all gains for one side areobtained at the expense of the opposing party.332 The competitive negotiator tries to maximize the3281bid, at 13-14.3291bid, at 14.330 NOTE: The term “adversarial” best describes the fact that this model is strongly influenced by thecourt conception of dispute resolution. See C. Menkel-Meadow, “Toward Another View of LegalNegotiation: The Structure of Problem-Solving” (1984) 31 U.C.L.A. Law Rev. 754 at 756 and 791.331 D.G. Gifford, “A Context-Based Theory of Strategy Selection in Legal Negotiation” (1985) 46 OhioState Law Journal 41 at 46.332 Ibid, at 48. For detailed discussion on adversarial negotiation, see R. Fisher, W.L. Ury & B. Patton,Getting to YES: Negotiating Agreement Without Giving In, 2nd ed. (Toronto: Penguin Books, 1991)Chapter 1; J.S. Murray & al., Processes of Dispute Resolution: The Role of Lawyers (New York:Foundation Press, 1989) Chapter 2. J.S. Murray, “Understanding Competing Theories of Negotiation”(1986) 2 Negotiation Journal, 179; Gifford, supra note 331, at 41.81benefits for his client by manipulating the process to serve his own end. Such negotiations become a“zero-sum” game and the bargaining engaged in is generally qualified as “distributive” bargaining.333Negotiation theories suggest a number of competitive tactics designed to force the other side to capitulate.As stated by Carrie Menkel-Meadow “[t]he literature is replete with advice to overpower and takeadvantage of the other side.”334 For instance, competitive negotiators will often use the following tactics:(1) a high initial demand; (2) limited disclosure of information regarding facts and one’s own preferences;(3) few and small concessions; (4) threats and arguments; and (5) apparent commitment to positionsduring the negotiating process.335Competitive negotiators tend to avoid normative arguments of “fairness, wisdom, durability andefficiency” of negotiations. They rather position themselves psychologically against the other party.336Competitive tactics of negotiations engender tension, mistrust, frustration, distort communication, andconsequently create many opportunities for an impasse between the parties.337 These negative attitudesmay make the continuing relationships between the disputants extremely difficult.3382.2 Cooperative StrategyThe cooperative negotiator values concessions as a positive technique designed to “capitalize on theopponent’s desire to reach a fair and just agreement and to maintain an accomodative workingrelationship.”339 The cooperative negotiator shares information and usually begins negotiations with amoderate opening bid that is both favorable to her and almost acceptable to the other side.34° TheMenkel-Meadow, supra note 330 at 765; Nolan-Haley, supra note 167, at 15.Menkel-Meadow, supra note 330, at 779.Gifford, supra note 331, at 48-49.336 Murray (1986), supra note 332, at 182; See also E.F. Lynch & al., Negotiation and Settlement (NewYork: Lawyers Cooperative Publishing) at 172-173.Murray (1986), supra note 332, at 183; See also Gifford, supra note 331, at 52.338 Gifford, supra note 331, at 52.Ibid.340 Ibid, at 53. Murray (1986), supra note 332, at 180-182; Menkel-Meadow, supra note 330, at 795;Lynch, supra note 336, at 173-174; Nolan-Haley, supra note 167, at 16.82cooperative negotiator generally initiates granting concessions in order to create both a moral obligation toreciprocate and to build a relationship on trust that is conducive to achieve a fair agreement.34’Accordingto Gifford, “the major weakness of the cooperative approach is its vulnerability to exploitation by thecompetitive negotiator.”3422.3 Integrative StrategyThe main distinction between the integrative strategy and the two previous ones is that while both thecompetitive and cooperative strategies focus on the opposing positions of the negotiators and the makingof concessions to move closer to an outcome favorable to the negotiator, the integrative strategy attemptsto reconcile the parties’ interests in order to provide high benefits for all the parties involved in thedispute.343 Under the integrative theory, a dispute is a mutual problem to be studied and resolved jointlyby the parties. The goal is to reach an outcome which benefits both parties, or maximizes joint andindividual gains in terms of “win-win” solutions.344 The process advocated by problem-solvingnegotiation theorists involves focusing on the interdependence between the parties. All the parties mustshare information so that each party’s motives, goals, and values are understood and appreciated in orderto reach a solution which meet the parties’ needs and priorities.345 The integrative negotiator considersthe needs of both parties as being relevant and legitimate, and focuses on identi1,ring their commoninterests.346 Moreover, under the integrative strategy of negotiation, the aspect of fairness of both theprocess and outcomes is very important. According to Carrie Menkel-Meadow,[t]he principle underlying such an approach is that unearthing a greater number of the actualneeds of the parties will create more possible solutions because not all needs will be mutuallyexclusive. As a corollary, because not all individuals value the same things in the same way, theexploitation of differential or complementary needs will produce a wider variety of solutionswhich more closely meet the parties’ needs.347s” Gifford, supra note 331, at 52.342 Ibid. at 53.3431bid, at 54.Fisher, Ury & Patton, supra note 332.D.A. Lax & J.K. Sebenius, “Interests: The Measure of Negotiation” (1986) 2 Negotiation Journal 73 at73. Murray (1986), supra note 332, at 181; Menkel-Meadow, supra note 330, at 813-817; Lynch, supranote 336, at 173. Gifford, supra note 331, at 55.346 Lynch, supra note 336, at 174; Murray (1986), supra note 332, at 180-182.Menkel-Meadow, supra note 330, at 795.833. The Choice of a Negotiation StrategyThe choice of which negotiation strategy(ies) to adopt in a negotiation depends on a number of factors. Indeciding whether the competitive strategy or one of the noncompetitive strategies, either the cooperativeor the integrative strategy, is more likely to be advantageous, the negotiator must assess the followingelements. First, the most important factor to consider is the opponent’s likely negotiating strategy. Infact, to be successful the cooperative and integrative approaches require that negotiators from all partiesadopt the same strategy. If the opponent adopts a competitive strategy, a negotiator should not opt for anon-competitive approach since he would be vulnerable to exploitation by the competitive negotiator. Ifthe opponent pursues a non-competitive strategy, the negotiator can then choose between a competitivestrategy or one of the two non-competitive approaches. The only circumstance where a negotiator willchoose a competitive approach even if her opponent has chosen an non-competitive strategy is when thenegotiator is not concerned about the parties’ continuing relationship and when there exists a feasiblealternative if negotiations break down.348The second factor the negotiator should consider in choosing a negotiation strategy is the relative power ofthe negotiator and the opponent. In fact, “the critical factor in negotiations is not power itself, but ratherthe opponent’s perception of power.”349 When a negotiator has, or is perceived to have, more power thanthe other party, he may choose either a competitive or a noncompetitive strategy. “A negotiator with aviable alternative to a negotiated agreement is exposed to minimal risk if she chooses the competitivestrategy, despite the increased risk of settlement impasse.”35°On the other hand, when a negotiator’spower is less than that of her opponent, noncompétitive strategies should be chosen because “thecompetitive strategy fails for the low-power negotiator because his threats are not credible and hispositions are not viewed by the opponent as firm and unyielding.”35’348 Gifford, supra note 331, at 59-61.3491b1d, at 62.3501b1d, at 64.351 Ibid.84The third factor to consider in choosing a negotiating strategy is the likelihood of future interaction withthe other party(ies). Generally, where there exists a continuing relationship between the parties, a non-competitive approach is suggested, since “the competitive strategy often generates distrust and ill will.”352If a negotiator decides that a non-competitive approach is more appropriate, she must then choose betweenthe cooperative or the integrative strategy. This decision should be made based on three factors. First, anegotiator must consider whether the negotiation is a zero-sum negotiation or not.353 In the context of azero-sum situation - or distributive bargaining - the cooperative strategy is recommended. On the otherhand, integrative bargaining is possible only with non-zero sum negotiation - or problem-solving situation- so that the parties can invent solutions that will satisfy the underlying interests of all parties.354 Second,the number of disputed issues is a relevant factor when choosing between the cooperative and integrativenegotiation approaches. “The more issues that the parties must negotiate, the greater the opportunity forintegrative bargaining.”355 Finally, the negotiator must assess the desire of all the parties to maximizeboth their own and the opponent’s gain.356B. Application to Aboriginal Land Claims352 Ibid. at 65.NOTE: A zero-sum negotiation occurs when “the parties seek to divide a fixed pie, a finite amount ofresources or widgets; the gain of one party necessarily comes at the expense of the other party.” Ibid, at69.3541bid, at 69.ibid. at 70.356 NOTE: This motivation depends on the following elements: “First, when the negotiators have highaspirations and high limits in negotiations, an integrative approach is recommended. High limits andaspirations complicate making concessions, and, therefore, discourage the use of a cooperative strategy.Second, both parties’ possession of high power or high threat capacity (...) also contributes to themotivation for integrative bargaining. (...) Finally, deadlocked negotiations on one hand, and pressure toreach agreement quickly on the other hand, affect the utility of integrative negotiations in very differentways. Deadlock often suggests that the parties regard themselves as unable to bargain cooperatively bymaking further unilateral concessions: integrative bargaining may emerge at this point. Conversely,pressure to reach agreement quickly will most likely lead to a pattern of concession-granting and acooperative strategy, instead of the integrative strategy which requires more time to explore thepossibilities of brainstorming and logrolling.” Ibid, at 70-7 1.85Given the complex and multi-dimensional nature of comprehensive claims, the integrative model ofnegotiation seems to be the most appropriate approach to successfully resolve these disputes, for at leastthree major reasons. First, negotiation theorists have affirmed that the competitive strategy is not suitablewhen the issues in a negotiation are multiple and varied.357 Menkel-Meadow explains that “the stylizedritual of offer/response, counteroffer/counterresponse and concessions may not be of assistance when theissues are multi-dimensional and the parties seek to discuss a variety of solutions at the same time.”358The B.C. Treaty Commission encourages the use of the problem-solving in the negotiation of moderntreaties in British Columbia since this approach “...allows negotiators to consider and discuss the interestsunderlying each party’s position. More options for resolution may then emerge.”359 Secondly, it isgenerally accepted that the integrative model is more appropriate when then parties are engaged in anongoing relationship.36°Therefore, any process which facilitates better communication and understandingbetween Aboriginal groups and governments, and which attempts to strengthen the parties’ relationshipsshould be adopted. Finally, the integrative model of negotiation is more culturally appropriate for FirstNations, “...since the principles which it espouses are, broadly speaking, more akin to the cultural valuesand priorities of Aboriginal peoples.”36’However, it may not be realistic to expect that governments will adopt the integrative model incomprehensive claims negotiations. In fact, some commentators have explicitly characterized land claimsnegotiations between Aboriginal groups and governments as being “adversarial” or “competitive”.362 Itwas reported that “...pressure tactics are used in the negotiation process, and the power imbalance betweenthe parties is used to force agreements or to put claims on the backburner.”363 The major problem forMeakel-Meadow, supra note 330, at 771.3581bid, at 777.359B.C. Treaty Commission, The ThirdAnnual Report of the British Columbia Treaty Commission for theYear 1995-1996, at 20.360 See generally, Fisher, Ury & Patton, supra note 332; Menkel-Meadow, supra note 330, at 760; Gifford,supra note 331, at 65.361 McCallum, supra note 13, at 85.362 See for example Coolican, supra note 176, at 6-7; McCallum, supra note 13, at 91; Interview withWilliam Dunlop, Director Resource Policy and Transfers Directorate, Indian Affairs and NorthernDevelopment, Ottawa, June 20th, 1996.363 Turpel (1995), supra note 2, at 78.86Aboriginal claimants is that they have no leverage to force governments to agree to problem-solvingnegotiation, but neither do they usually have the power to respond to government “competitively” innegotiations. As noted by Menkel-Meadow, “problem solving cannot work where one party is so powerfulthat it will not accede to demands or requests to bargain for joint or mutual gain.”364 The adversarialnegotiation tactic might also damage the long-term relationship and the ability of First Nations andgovernments to work together productively to implement their future agreements. This is also the opinionof the B.C. Treaty Commission:When parties cannot negotiate beyond their positions, the process becomes a battle of wills. Oneside may see itself as bending to the rigid will of the other, while its legitimate concerns are notaddressed. Particularly where there is an imbalance of power, such a battle is harmful to therelationship among the parties.365It appears that the federal government is now committed to adopting the interest-based approach in itsnegotiation with First Nations.366 However, I submit that the structure of the process, the lack of mandateof government’s negotiators and the inequality of power between the parties are factors which prevent thefederal government’s negotiators from reaching the true benefits of interest-based negotiation. Thevarious problems with the structure of the existing negotiation process will now be examined.Part IL Negotiation of Aboriginal Land ClaimsThe purpose of this section is to examine the current reality of the negotiation process between theCanadian governments and Aboriginal claimants. As mentioned above, there are two land claims policiesin place at present in Canada: a comprehensive claims policy and a specific claims policy. Both policieslook at negotiations as the most appropriate mechanisms to resolve land claims. It appears that theunderlying assumptions which have motivated the federal government to choose this approach are thatnegotiations will: (1) lead to better decisions; (2) be more adaptable to changing conditions; (3) be fairerto all parties involved in the dispute; and (4) be better implemented than other types of decisions.367364 Menkel-Meadow, supra note 330, at 833.365 ThirdAnnual Report, supra note 359, at 21.366 Interview with William Dunlop, Director Resource Policy and Transfers Directorate, Indian Affairsand Northern Development, Ottawa, June 20th, 1996.367 Frideres, supra note 175, at 291.87However, the shortcomings of the existing land processes have been widely recognized over the past 20years. Some of the problems are due to the fact that under the existing land claims policies, “[t]hegovernment decides which claim is accepted, how much money will be made available to the claimantgroup for research and negotiation, when negotiations will begin, and the process for negotiations.”368The following will discuss some of these problems and will recommend measures to improve thenegotiation process.A. Structural Problems with Land Claims Negotiations1. Symmetry of Power Between the PartiesPower is not a characteristic of an organization or person but is an attribute of a relationship. A party’spower is directly related to the power of an opponent. Power is therefore multidimensional and dynamic.Power relations generally occur in two forms: symmetric, or equal, and asymmetric, or unequal, levels ofinfluence.369 When there is unequal power between parties involved in a dispute, it must become a factoractively considered. In fact, several studies have shown that an unequal distribution of power generallyresults in less effective bargaining overall, than does an equal distribution.370 Unequal power, moreover,appears to differentially affect the behavior of the more powerful and less powerful parties. As discussedearlier, negotiators with high power relative to that of their adversary tend to behave manipulatively andexploitatively, while those with low relative power tend to behave more submissively.37’As stated byDruckman “...the more powerful party is likely to avoid bargaining because of a belief that he [sic] can orshould be able to dominate the other, and the less powerful is likely to follow suit out of fear of reprisal orbecause of a sense of hopelessness about achieving an equitable agreement.”372368 Living Treaties: Lasting Agreements, supra note 8, at 78.369 C.W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict, (San Francisco:Jossey-Bass, 1986) at 278.370 Ibid; See also J.Z. Rubin and B.R. Brown, The Social Psychology of Bargaining and Negotiation(New York: Academic Press, 1975) at 22 1-223; Norton, supra note 286, at 497-498.Rubin and Brown, supra note 370, at 221-223; Moore, supra note 369, at 278.372Dmckman supra note 326, at 185.88In the context of Aboriginal land claims, it is suggested that “the process of negotiating has been affectedby the extent to which the parties differ in power and resources.”373 Aboriginal people “... are usually inthe position of supplicants seeking redress from parties whose interests in achieving an agreed settlementare not as great as their own. The opposing parties are usually governments backed by greater resourcesfor the conduct of negotiations and able to rely on the coercive machinery of the government to enforcethe status quo in the event of break-down.”374 As mentioned above, governments tend to adopt a style ofcompetitive negotiation with Aboriginal claimants.375 As a result, Aboriginal groups are often forced torelate to governments on terms unilaterally defined by those governments. It is suggested that in practice,[d]uring negotiations the government acts as “defendant” and “judge” as well as banker, andhence is able to force a narrow range of settlement alternatives for consideration. Despiterepeated and frequent criticism from Natives, academics, the international community, and fromsources within government itself, the current process remains largely unchanged.376Where there is a serious imbalance of power between the parties, as it is the case between Aboriginalpeoples and governments, negotiation theories suggest that the likelihood increases that negotiations willbreak down or that the outcome will be perceived by one side as an exercise of coercion. The breakdownof negotiations may itself create a coerced settlement in a case where, for instance, the status quo leavesone party in possession of the disputed resource and where no alternatives for dispute-resolution areavailable.377 Thus, past experience shows that “[ilf governments are going to ensure fair and justnegotiating processes, they have to be structured to compensate for those power imbalances and seekmethods less adversarial than those currently employed.”378Frideres, supra note 175, at 291.Daniel, supra note 42, at 222-225; Colvin, supra note 54, at 16-17. NOTE: “As a negotiator, it isimportant to see each party having some leverage in any negotiations, otherwise the tendency on the partof the party with all the marbles is not to play. The Department of Indian Affairs and NorthernDevelopment has all the marbles and tends not to play.” Denhoff, supra note 95, at 11.r P. Puxley, “The Colonial Experience” in M. Watkins, ed., Dene Nation: the Colony Within (Toronto:University of Toronto Press, 1977) 103 at 108.376 Leghorn supra note 90, at 19.Colvin, supra note 54, at 5.C. Knight, “What Can the Federal and Provincial Governments Do” in F. Cassidy ed., Reaching JustSettlements - Land Claims in British Columbia (Vancouver: Oolichan Books and the Institute forResearch on Public Policy, 1991) at 67.892. TerminologyMany commentators have noted the inappropriateness of the terms Aboriginal “land claims” arguing thatthis expression is misleading in that it connotes that Aboriginal’s grievances are merely a contentionrather than a valid fact. Aboriginal people have said many times that they find this expression veryoffensive because it seriously misrepresents Aboriginal concepts of land and contribute to reinforcing thepower imbalance between the parties.379Professor Michael Asch argues that by using the term “land claims”, Aboriginal people “.,.have had toaccept working within a paradigm that is external to their ideology and yet to find ways within it to obtainsome of the rights and guarantees they see as properly theirs.”38° Thus, the use of the expression “landclaims” has a serious impact on First Nations, for they are forced to operate within parameters which donot recognize the principle which derives from their own conceptual framework and ignore the right thatwould flow from an acceptance of their framework in Canadian law.3The existing situation would be more appropriately represented by the expression “land question”. AsFrank Cassidy points out, there are claims on both sides and the situation is in fact “a dispute or adifference about who has the rights to the land, who has the rights to the resources, who has the right togovern.”3823. Land Claims PoliciesLiving Treaties: Lasting Agreements, supra note 8, at viii; Puxley, supra note 375, at 116; See alsoJ.R. Ponting, Arduous Journey: Canadian Indians and Decolonization (Toronto: McClelland & Stewart,1986) at 236-240; McCallum, supra note 13, at 97.380 M. Asch, “Wildlife: Defining the Animals the Dene Hunt and the Settlement of Aboriginal RightsClaims” (1989) Canadian Public Policy, at 211-212.381 Ibid, at 212.382F Cassidy, “What Can the Federal and Provincial Governments Do?” in F. Cassidy ed., Reaching JustSettlements- Land Claims in British Columbia (Proceedings of a conference held February 2 1-22, 1990)(Vancouver: Oolichan Books and the Institute for Research on Public Policy, 1991) 60 at 60.90“Policy-making is not a pragmatic exercise devoid of principles and beliefs, but a process in which valuesthat will guide government actions are selected and rationalized.”383 One of the most serious problemswith the land claims policies is the fact that the federal government has unilaterally developed and revisedthem without substantial input by First Nations, and therefore these policies generally reflect theprinciples and beliefs of the non-Aboriginal society. As noted by Leghorn,[i]n general, the government has not consulted with Native organizations before deciding on itspolicy for dealing with their land claims, and has remained intractable on most of its positions.Indeed, rather than a process of negotiation, it appears that Natives are being encumbered in atime-consuming process of learning the government’s position on a range of claims-relatedissues. The government’s reactions to Native displeasure concerning land claims negotiationshas [sic] been limited to verbal assurances; little substantive change has occurred.384The problem is not so much with the process of negotiation since it seems to have been the preference ofmost First Nations in the period leading up to the 1973 statement of policy on land claims, as assessedthrough informal consultations by Lloyd Barber. The difficulty arises from the fact that through its landclaims policies, the government largely dictates the terms for negotiation and states its non-negotiablepositions. In practice, this mean that the government decides “...not only the specific rights claims thatcan be negotiated, but also the various premises which must be accepted by Aboriginal claimants if thegovernment is to agree to negotiate at all.”385 Thus, through the development of land claims policies, thefederal government is able to control the negotiation process from the outset by defining the scope,premises and principal terms of negotiations.The problems with the existing land claims policies and processes have been widely recognized for a longtime now and progress on new approaches and innovative dispute-resolution strategies have been slow.386Given the serious impact of the application of governmental policies in the negotiation forum, there383 Weaver (1985), supra note 122, at 141.384 Leghorn, supra note 90, at 18. NOTE: However, the system has changed in British Columbia sincethe establishment of the B.C. Treaty Commission.385 McCallum, supra note 13, at 89.386 Turpel (1995), supra note 2, at 66.91clearly needs to be increased participation by Aboriginal peoples in the policy-making process so as toinfluence the setting of agenda and scope of the negotiations.3874. Conflict of InterestSince the establishment of the first federal land claims policy in 1973, it has been suggested on manyoccasions that the process for dealing with both the specific and comprehensive claims is not based onstandards of fairness and equity. In fact, the Minister of Indian Affairs and Northern Development(DIAND) is responsible for all decisions in relation to which claims will be accepted for negotiations andall the funding decisions. At the same time, the same Minister is responsible for the government’sposition in negotiations and also has a fiduciary duty to the Aboriginal groups all of which create aninherent conflict of interest in the process.4.1 Acceptance of ClaimsThe responsibility to decide which comprehensive claims will be negotiated is given to officials ofDIAND. They have the mandate to make such decisions relatively to comprehensive claims bydetermining a claim’s “acceptability according to legal criteria.”388 The criteria to be met to have acomprehensive claim accepted are the following: (1) claimants must prepare a statement of their claim,with supporting material demonstrating that they can satisfy a test for the existence of Aboriginal title tolands; (2) they must show that they are an organized society; (3) that they have occupied a certain territorysince time immemorial; (4) that their occupation and use was continuous; and (5) that they have excluded387 NOTE: Another example of the limited participation of Aboriginal peoples is expressed by Chief JohnSnow when he refers to the Constitutional conferences on Aboriginal issues - section 37 of theConstitution Act, 1982, states that the constitutional conferences on aboriginal issues will be ‘composed ofthe Prime Minister of Canada and the First Ministers of the Provinces,’ while members of the Indiannations will attend only as invited ‘representatives.’ “Our status at the conferences is that of a powerlessminority group, which may deserve some kind of special recognition but which is not entitled to share anyreal power.” Chief J. Snow, “Identification and Definition of Treaty and Aboriginal Rights” in Boldt &Long, eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University ofToronto Press, 1985) at 43.388 Denhoff, supra note 95, at 10. NOTE: Under the specific claims policy, the acceptance of a claim isbased on the controversial concept of “lawful obligation”.92other Aboriginal peoples in the pursuit of traditional customs within the territory.389 The procedure wasdescribed in the most recent comprehensive claims policy in the following way:Upon receipt of a statement of claim, the Minister of Indian Affairs and Northern Developmentwill review the submission and accompanying documentation and seek the advice of the Ministerof Justice as to its acceptability according to legal criteria. The claimant group will be advised bythe Minister of Indian Affairs and Northern Development, within twelve months, as to whetherthe claim is accepted or rejected. In the event that a claim is rejected, reasons will be provided inwriting to the claimant group.39°There has been abundant criticism of this validation process since it appears that “. . .the government hasset out broad criteria and often interprets them in narrow and unpredictable ways, often withholding legalreasons from First Nations claimants on the basis of Crown privilege.”39’ I would submit that in caseswhere the federal government does not provide reasons for rejecting a claim, the negotiation processdisregards a generally accepted principle of natural justice, namely that an applicant is entitled to examinethe reasons for an administrative decision.. As noted by the Indian Commission of Ontario: “Any systemof secret judgments over the validity of land claims will be open to suspicion and arbitrariness anddisregard for law.”392Moreover, it has been suggested that in applying the criteria for accepting a claim, the federal governmentwants to have what is considered true “evidence” from a Euro-Canadian perspective. “They want studiesby experts, experts they trust and define as credible. The stories of elders or neighbourhood mothers arein their world, just stories. What they want is “science”, truth claims produced by people who havecredentials; law degrees, Ph.D’s and certified appraisers.”393 As a result, “...First Nations frequently willnot accept treatment of all claims as having been just when the federal government - which is the party389 Turpel (1995), supra note 2, at 76.390 Claims Policy 1987, supra note 96, at 23.391 Turpel (1995), supra note 2, at 76.392 ICO (1990), supra note 39, at 96.D. Peerla, “It’s a Poor Worker Who Blames Her Expert”: The Role of the Expert in ClaimsNegotiations” (Paper prepared for the National Conference on Land Claims in Canada: Beyond theRhetoric, Toronto, June 26-27th, 1996) at 4.93against which the claim has been lodged - rejects it by a unilateral decision made according to aunilaterally-imposed claims policy.”3944.2 Funding DecisionsWhen the federal government accepts a claim for negotiation, the Aboriginal claimants are almost entirelydependent upon grants and loans from the federal government to develop their negotiating positions andto pursue claims negotiations. Many commentators have argued that “[fJunding for submission andnegotiation is inadequate, owing to the fact that loans and funding decisions rest with the department.”395The federal government has the power to refuse to provide adequate financial assistance by way of loan orgrant. When it does make funds available to Aboriginal claimants, the government decides on the level offinancial support which in certain cases can be insufficient which can affect the quality of the claim putforward.396 It is also argued that funding is being used as a lever in negotiations since Canada can suspendor withhold funding in its absolute discretion.397 No direct accountability is required which in turndirectly constraints the negotiating power of the Aboriginal claimants. Steve Kakfwi, Dene Nationpresident stated that “[w]e are told this is what you can talk about and this is what you can’t talk about. Ifyou don’t talk the way we want you to talk, then there is no financial assistance. We get a loan to doresearch, to develop our positions; but if we don’t do the kind of work they want us to do, then theywithdraw the loan. This has happened over and over again.. “Jamieson, supra note 161, at 11; AnAgendaforAction, supra note 3, at 55.Turpel (1995), supra note 2, at 78.396 Leghorn supra note 90, at 11.Living Treaties, LastingAgreements, supra note 8, at 89. NOTE: In 1978 the federal governmentsuspended funding for the Dene for a period of two years, during which time the Dene and Metis had toagree upon a joint negotiating mechanism. In 1983, funding was again suspended due to an alleged lackof cooperation between the parties. Further, it is reported that in 1973, Jean Chretien, then Minister ofIndian Affairs, threatened to cut off federal funding to the Cree and Inuit when they initially refused toaccept Quebec’s offer to settle. McCallum, supra note 13, at 138; In all Fairness, supra note 89, at 30; K.Crowe, “A Summary of Northern Native Claims in Canada: The Process and Progress of Negotiations”(1979) 3 Inuit Studies 31 at 36; K.S. Coates and W.R. Morrison eds., For The Purposes ofDominion:Essays in Honour ofMorris Zaslow (North York, Ontario: Captus University Press, 1989) at 267;Leghorn, supra note 90, at 11-12; MacGregor, supra note 227, at 115.398 CARC, 1983, quoted in Leghorn, supra note 90, at 12.94Moreover, funds used by Aboriginal groups to regain land title and rights must be repaid fromcompensation moneys granted to them which, as a result, places unfair pressure on Aboriginal people tosettle.399 The federal government is therefore placed in a serious position of conflict of interest by itsability as a negotiating party to control the financial resources of the other party. With this financialcontrol, one could argue that the federal government not only has the power to manipulate the process butalso to control the behavior of the other party.Thus, the conflict of interest in which the government finds itself is obvious since it “...remains theultimate adjudicator of claims made against it.”40° David Knoll summarizes this conflict of interest inthese words:The Federal Government remains the ultimate determiner of what claims will be funded,validated and accepted for negotiation. No appeal is available except to commence an actionthrough the Courts. There is not even the least effort to preserve the image of neutrality. Thissituation, more that any other, is what condemns this policy and process to be viewed as biased,arbitrary and unfair.40’4.3 Lack of Appeal MechanismsIf a comprehensive claim is rejected, there is no appeal process, and there is no right to a hearing, to makesubmissions, or to have an independent party reviewing the decision.402 The only alternative to thecomprehensive claims policy is to go to court.403 As mentioned in Chapter One, the federal governmenthas established the Indian Claims Commission to review claims that have been rejected but the mandateof the Commission is limited to specific claims only.Leghorn, supra note 90, at 19; Dacks, supra note 90, at 256.400D. Knoll, “Unfinished Business: Treaty Land Entitlement and Surrender Claims in Saskatchewan”(1986) [unpublished] at 15.401 Ibid.4021bid, at 78.403 NOTE: As stated by the CBA, “[un reality the aboriginal claimant is denied this option becauseaccess is largely dependent on the availability of funds, which most aboriginal communities do not have.Secondly, presuming funds can be found for this costly procedure, the process is lengthy and complex,involving lawyers almost to the exclusion of the aboriginal claimants. Third, the legal system is renownedfor its fonnality. As well, the judiciary is trained in the English common-law system and has little or notraining in Aboriginal laws and concepts. See An Agendafor Action, supra note 3, at 56.955. Interim Measures AgreementsThe negotiation process is slow and it takes generally many years before a final agreement is reachedbetween First Nations and governments. In 1985, the Coolican report pointed out that “...unlessnegotiations deal more expeditiously with aboriginal claims and the interests of aboriginal groups areprotected pending the outcome of negotiations, groups may turn to litigation as the only effective means ofsecuring their rights.”404 Despite this recommendation, the most recent federal comprehensive claimspolicy states only that “[a]ppropriate interim measures may be established to protect aboriginal interestswhile the claim is being negotiated. These measures will be identified in initial negotiating mandates inspecific cases.”405 Turpel reports that the actual process is not working in that it does not provide for anyreal form of protection for the interests of claimants. According to William Dunlop of the Department ofIndians Affairs and Northern Development, the federal government is willing to negotiate interimmeasures agreements but difficulties arise due to the fact that First Nations’ demands are often tooextreme.406 Moreover, in the third annual report of the B.C. Treaty Commission, the B.C. governmentwas severely criticized for refusing to negotiate interim measures agreements at an early stage of thenegotiation. In fact, the B.C. government said that it would negotiate such agreements only when theclaims are at an advanced stage for negotiation. According to Alec Robertson, Chief Commissioner of theB.C. Treaty Commission, interim measures agreements are necessary to keep Aboriginal groups at thenegotiation table and prevent them from resorting to the courts.407 Thus, when governments refuse tonegotiate interim measures agreements, the only forum available to claimants to secure their rights beforeand during the negotiation process is to seek redress before the courts through injunctive relief or othermeans in order to prevent the destruction of the lands and resources they claim.4086. Timelines404 Living Treaties: Lasting Agreements, supra note 8, at 76.Claims Policy - 1987, supra note 96.406 Interview with William Dunlop, Director Resource Policy and Transfers Directorate, Indian Affairsand Northern Development, Ottawa, June 20th, 1996.407 ThirdAnnual Report, supra note 359, at 26.‘° Turpel (1995), supra note 2, at 78.96Deadilines are one of the most important factors in negotiation. A deadline has been defined as.a point in time after which the potential costs and benefits to the parties will change markedly.It provides the opportunity and the pressure for the parties either to conclude an agreement orrisk foregoing benefits and increasing costs. Without a deadline that is regarded as valid by allparties (that is, one that cannot be changed without imposing significant costs on the parties),negotiations can be prolonged indefinitely and ultimately may yield no conclusion.409However, there are no fixed timelines for negotiations in the existing claims policies and it is arguablewhether governments always have strong incentives for settlement. Consequently, there is a danger thatnegotiations, as it has been the case in the past, will linger on with no foreseable prospects ofsettlement.41°These interminable delays have serious consequences for First Nations as the funds loanedto them to finance their participation in land claims negotiations must be repaid.7. ImpasseWhen negotiation fails, there is no alternative but to bring the claim before the courts since thegovernment has generally refuses to participate in mediation and arbitration. The problem with respect toimpasses occurring during the negotiation process has been expressed by the Indian Commission ofOntario in the following way:In the majority of cases where an agreed settlement is not easy to reach, if the government simplyrefuses to address an issue or even to negotiate at all, the claimant has no recourse apart from thecourts. The claimant simply has no way to resolve an impasse where the parties disagree on anissue. However, resort to the courts is not a realistic option for most claimants for financial andother reasons.”411In fact, under the existing land claims policies, the claimants cannot refer an unresolved issue to the Courtand go back to the negotiation table to continue the rest of the discussion on other issues. The federalgovernment’s position is that when litigation begins, negotiation ends. Consequently, there is no fundingavailable to facilitate court references as part of claim negotiations.412409 J.A. Folk-Williams, “The Use of Negotiated Agreements to Resolve Water Disputes Involving IndianRights” (1988) 28 Natural Resources Journal, 63 at 94.° Turpel (1995), supra note 2, at 78.411 ICO (1990), supra note 39, at 99.4121bid, at 53.97One example of this is with the Gitxsan negotiations. On February 1, 1996, the province of B.C.announced the suspension of the treaty negotiations with the Gitxsan Treaty Office at the expiry of theAccord of Recogmtion and Respect which was signed in June 1994. Under the terms of the Accord, theparties sought and were granted an adjournment of the Delgamuukiv appeal on issues of Aboriginal rightsto the Supreme Court of Canada. Citing fundamental differences between the province and Gitxsan,Minister Cashore said that there was little chance of progress in negotiating Aboriginal rights andjurisdictions with the Gitxsan without further direction from the Supreme Court of Canada.413 Thus, theentire negotiation broke down and all the issues will be resolved by the Supreme Court of Canada.B. Problems in Substantive NegotiationsOther than these procedural difficulties, attempts to negotiate disputes over Aboriginal land claims alsoraise a number of substantive problems that have made the use of negotiation to resolve the land questionvery difficult.1. CompromiseWhether the competitive, cooperative, or the integrative strategy is employed in negotiations, there isalways a need for some measure of compromise. In the context of land claims negotiations, this elementhas proven to be problematic. On one hand, compromise on fundamental issues such as resources whichare vested with great symbolic, cultural, and economic importance is extremely difficult for First Nations.In fact, it is often impossible for community leaders to appear to be bargaining about what are seen asspirituality, fundamental values, rights, lifestyle, and cultures. On the other hand, it is unlikely that thefederal government will adopt a much broader interpretation of Aboriginal rights than what it is preparedto acknowledge through its land claims policies. In fact, the governments’ negotiators are bound bydepartmental policies and they have to handle negotiations in a way to comply with and reinforce existing413 British Columbia, Ministry of Aboriginal Affairs, “Province Suspends Treaty Negotiations withGitxsan” (Press Release, February 1, 1996).98policies.414 Therefore, given the disparity of power between the parties, one could presume that theweaker party - First Nations - will face the heaviest burden in any compromise.2. Premises of NegotiationsNegotiations have better chance of success when the parties share common or compatible objectives andsimilar expectations of the process.415 However, the objectives of First Nations and governments inentering land claims negotiations are generally in direct opposition. On one hand, the primary goal of thefederal government in comprehensive claims negotiation rests on extinguishing Aboriginal title to land inexchange for some specific benefits which could contribute in lessening Aboriginal dependency.416 Onthe other hand, First Nations aspire to “striking a “social contract” with governments, obtaining officialrecognition of the full range of inherent rights, and finding equitable arrangements for sharing resourceswith governments.”4172.1 CertaintyCanadian land claims policies have always contemplated certainty by insisting upon the extinguishment ofall Aboriginal rights as a condition to enter into negotiations.418 However, First Nations viewextinguishment as culturally unacceptable and as a renunciation of their unique relationship with theirtraditional territories.419 Lloyd Barber explains that the terms “extinguishment” and “compensation” forAboriginal people “... mean that the Government’s policy is to buy them out and terminate traditionalrights which they believe are still very relevant.”420 However, “Indians do not see their rights as being for414McCallum, supra note 13, at 118.415 Coolican, supra note 176, at 7; McCallum, supra note 13, at 112.416 Leghorn supra note 90, at 10.417 McCallum, supra note 13, at 113; See also G. Erasmus, “Introduction: Twenty Years of DisappointedHopes” in B. Richardson ed., Drumbeat: Anger and Renewal in Indian Counfry (Toronto: Summerhill,1989) 1 at 13. See also Dacks, supra note 90, at 252; Berger, supra note 112, at 213.418 NOTE: In the 1987 revised comprehensive claims policy, the federal government states thatsettlements must be final and that the purpose of this is to provide certainty and clarity of rights toownership and use of land and resources. See Claims Policy (1987), supra note 96, at 9; See also Berger,supra note 112, at 228.Turpel (1995), supra note 2, at 73.420 Commissioner, supra note 67, at 46.99sale. They expect recognition of their rights to lead to the continuing exercise of those rights withimplications for self-sufficiency and self-determination.”421 Aboriginal groups have therefore condemnedthis policy arguing that it meant assimilation and cultural destruction422 and that it violated constitutionalrecognition of existing Aboriginal and treaty rights, including an intrinsic right to self-government aspromulgated in the Royal Proclamation.423As noted by the British Columbia Claims Task Force, “First Nations should not be required to abandonfundamental constitutional rights simply to achieve certainty for others.”424 This condition ofextinguishment imposed by the federal government as a requisite to enter into land claims negotiation hasprovoked strong reaction from Aboriginal people and represent a serious impediment to the fair andexpeditious resolution of these claims.It might be possible to achieve certainty without recourse of extinguishment. Alternatives toextinguishment were explored the Task Force in Leaving Treaties, Lasting Agreements. In its report, theTask Force stated that:A claims policy that requires a surrender and extinguishment of all aboriginal rights can, andmust be abandoned. It can be abandoned because, as we have shown, there are other methods forclearing title to the land. It must be abandoned because, if it is not, there will be no possibility ofachieving land claims agreements based on common objectives.425The British Columbia Claims Task Force has suggested that the parties should strive to achieve certaintythrough modern treaties which state as precisely as possible each party’s rights, duties, and jurisdiction.426Moreover, the Liberal party explicitly promised during the last election campaign in 1993 that under aLiberal government, land claims processes would no longer be premised on the blanket extinguishment of421 ICO (1990), supra note 39, at 13.422Jbid, at 40.423 Fleras & Elliott, supra note 63, at 35. See also Canada, Royal Commission on Aboriginal Peoples,Overview of the First Round (Prepared for the Commission by M. Cassidy-Ginger Group Consultant,October 1992) at 43.424B C. Task Force, supra note 25, at 29.425 Living Treaties: Lasting Agreements, supra note 8, at 43.426BC TaskForce, supra note 25, at 29.100Aboriginal or treaty rights and that other approaches would be explored which would not requireAboriginal peoples to sever their historic relationship to lands. The policy document stated that “[i]norder to be consistent with the Canadian Constitution which now “recognizes and affirms” Aboriginal andtreaty rights, a Liberal government will not require blanket extinguishment for claims based onAboriginal title.”427 However, to date, no formal change have been made to the comprehensive claimspolicy with respect to the extinguishment condition. Governments have nonetheless accepted to sign anagreement-in-principle with the Nisga’a people in British Columbia which is not premised on theextinguishment of the First Nation’s rights. This could be an important precedent which could lead to aformal change in the comprehensive claims policy.2.2 FlexibilityAccording to Lloyd Barber, “there can be no finality in Indian-Government relations”.428 Whennegotiating treaties, the parties must consider the possibility for renegotiation in the event of new,previously unforeseen circumstances occurring.429 Dynamic, ongoing relationships involve change andthus require flexibility in the process. Murray Coolican also encourages a flexible approach, “[tb believethat yesterday, today, or tomorrow we can fix with finality our association with aboriginal societies is todeny the potential for growth and for change which is so important to any society.”43°Thus, the parties usually come to the negotiation table with different expectations and opposing goals.The reconciliation of these divergent goals is extremely difficult given the enormous inequality of powerbetween Aboriginal groups and governments. Unfortunately, it has been suggested than “Aboriginalclaimants are often powerless to enforce their perceptions, or change the rules of the game defined bygovernments, and have few options but to reluctantly accept the game (...) When Aboriginal claimants427 Creating Opportunity, supra note 6, at 11.428 Commissioner, supra note 67, at 50.429 Dacks, supra note 90, at 254; McCallum, supra note 13, at 116.430 Coolican, supra note 176, at 8.101have resisted the government demand for extinguishment, negotiations have dragged on interminably,often dissolving in acrimony and frustration.”43’3. Lack of AuthorityMany commentators have suggested that one of the most serious difficulties in land claims negotiations isthe lack of authority of the governments’ negotiators. It appears that often negotiators do not have a realmandate to make substantive commitments on the part of their government. The B.C. Treaty Commissionhas observed that “Canada’s and B. C. ‘s negotiators have demonstrated limited authority and worked withmandates that are rigid and often unchangeable.”432 The Indian Commission of Ontario reports that“[tjhe history of negotiation is full of examples of commitments and undertakings dishonoured byanonymous bureaucrats back in Ottawa, and “done deals” set aside by higher authority.”433Mandates are generally difficult to obtain from large organizations such as governments. The negotiators’lack of authority affects the credibility and perceived commitment of the governments involved in theresolution of land claims and contributes to increasing the distrust of the First Nations. Moreover, thelimited mandate of government’s negotiators affect their ability to use the interest-based strategy ofnegotiation. They rather come to the table with a firm position and do not have the flexibility to explorecreative options.4344. Lack of TrustOne of the principal characteristics of the relationship between Aboriginal groups and governments is thelack of trust between the parties. It has been suggested that the relationship is such that “[e]ven positivemoves are suspected of concealing ‘hidden agendas”.435 This negative relationship has a serious impact431 McCallum, supra note 13, at 113 and 114.432 ThirdAnnualReport, supra note 359, at 22.ICO (1990), supra note 39, at 46.‘ Statement made by Barbara Fisher, Commissioner, B.C. Treaty Commission at the Conference MakingPeace and Sharing Power - A National Gathering on Aboriginal Peoples & Dispute Resolution, Victoria:April 30-May 3, 1996).Fleras and Elliot, supra note 63, at 125.102on the dynamic of the negotiations and can be evidenced by the fear on the part of all parties to adopt anopen and cooperative attitude throughout the negotiations.5. Incentive to NegotiateAs noted by the Indian Commission of Ontario, “[i]t would be naive (...) not to consider the possibilitythat some parties (particularly the federal and provincial governments), may believe that it is in theirinterest to simply “manage the issues” rather than resolve them.”436 In fact, by delaying the settlement ofvalid claims, governments are able to defer payments and to save interest costs. However, there is also aconsiderable cost of not settling the outstanding land claims in various provinces.437 First, there is theongoing cost of the negotiation process which involves many public officials, consultants, negotiators,experts, lawyers. Second, there is the uncertainty created around the lands subject to claims which mightimpede economic development in these regions. Third, there is the price of violent confrontation which isalways veiy significant.The incentive to settle is stronger on the part of a First Nation since the status quo will generally leave thegovernment in possession of the disputed land and resources, with no other option than the court systemfor the First Nation to resolve its claim. As noted by the Indian Commission of Ontario:There is less incentive for a First Nations to attempt to set preconditions for land claimsnegotiations or to refuse to discuss positions at the table, since an impasse at the negotiation tablewill leave the First Nation without the land or compensation they ultimately seek. Failure tochange the status quo seems to be more easily accepted by Canada and Ontario, which can simplyclose a file to “resolve” an issue.438It has been suggested that “[tjhe government’s receptivity to aboriginal demands is not necessarily basedon compassion or outrage but on politics and power.”439 In the past, economic development has been the436 ICO (1994), supra note 152, at 53.NOTE: A Price Waterhouse Report for the province of B.C. stated that “Cost of uncertainty over landclaims is more than $1 billion in foregone investment” (Price Waterhouse Report: Economic Value ofUncertainty Associated with Native Claims in B.C. 1990)438 ICO (1994), supra note 152, at 46.Fleras and Elliot, supra note 63, at 125.103main incentive for inducing governments to negotiate Aboriginal claims.440 In fact, most modernsettlements have been achieved only when governments were eager to facilitate an economic developmentproject, otherwise, “...the government’s patience for negotiation appears unlimited.”441 A clear example ofthe motivation of the government to settle is the James Bay hydro-electricity project. According to JohnCiacca,[w]ithout the James Bay project there would be no agreement. Unfortunately, governments rarelyact with that degree of foresight, generosity and magnanimity which many of us would expect.Governments usually respond to situations and, in this case, the response of government wasmade necessary by the hydro-electric project.(...)In that manner, development can be anopportunity to effect important reforms while providing adequate protection to the nativecommunities.442Another example of the true motivation of the government to settle land claims is the agreement-in-principle with the Inuvialuit in Canada’s Western Arctic in 1978. In that case, the motivation of thefederal government was to enter into an agreement to clear title and to allow for large-scale petroleum andnatural gas developments. However, when the project became unfeasible, the government’s enthusiasm tosettle declined, though a settlement was finally reached.443 A similar attitude was noted in the case of theDene comprehensive claim in the MacKenzie River region of the Northwest Territories. In that case, thefluctuations in the negotiations correspond with the level of government enthusiasm for resourcedevelopment.444 Thus, as Leghorn stated in concluding her analysis of the Canadian Aboriginal claimsprocess, “[t]he evidence indicates that industrial development, not fairness, is the actual motivation”.445440 Richardson (1975), supra note 227, at 309; R.H. Bartlett, “Resource Development and theExtinguishment of Aboriginal Title in Canada and Australia” (1990) 20 Univ. of West. Aust. Law Rev.453 at 480; S. Smith, “The History of the Dene/Metis Comprehensive Claim: Aboriginal Sovereignty andPolitical Will” (Recherches Amérindiennes au Québec) at 5; Living Treaties: Lasting Agree,nents, supranote 8, at 13; Feit, supra note 161, at 165; W.R. Morrison, “The Comprehensive Claims Process inCanada’s North: New Rethoric, Old Policies” in K.S. Coates & W.R. Morrison, eds., For the Purposes ofDominion: Essays in Honour ofMorris Zaslow (North York, Ontario: Captus University Press, 1989) at264 and 270.441 Living Treaties: Lasting Agreements, supra note 8, at 78.442 Ciacca, supra note 126, at 562,443AnAgendaforAction ,supra note 3, at 24; McCallum, supra note 13, at 136.McCallum, supra note 13, at 136; See also S. Smith, supra note 440; Commissioner, supra note 67, at21.‘ Leghorn, supra note 90, at 20. See also Coolican, supra note 176, at 6.104C. Cultural DifferencesThe resolution of Aboriginal claims cannot be meaningfully discussed without reference to Aboriginalcultures and their fundamental differences from Euro-Canadian culture. The differences in the culturalframeworks of Aboriginal and non-Aboriginal society manifest themselves in the negotiation forum. Thedominant Euro-Canadian culture uses its power to define the cultural framework of negotiations asAboriginal people lack the political power and perceived legitimacy to impose their own values.446In the following discussion, I will briefly comment on the different worldviews of Aboriginal and non-Aboriginal societies and I will examine two of the major cultural differences between the two groups toillustrate the constant challenge faced by Aboriginal peoples when participating in a system that does notreflect the basic value structure of their culture.As mentioned in the Introduction, it is critical to recognize the diversity within Aboriginal cultures inCanada. It is therefore essential to be careful not to over-generalize or over-simplify. However, despitethe diversity among First Nations in Canada, it is still possible to broadly examine the underlying unity ofAboriginal cultures versus non-Aboriginal culture as the differences are quite pronounced.1. Different WoridviewsAccording to Kuichyski, “Aboriginal cultures are the waters through which Aboriginal rights swim.”447Williamson defines culture as being “...the most profound force that conditions human behaviour. Vitalcomponents of culture include mythic tradition and symbolism, supernatural beliefs and values.”448Moreover, it should always be kept in mind that culture is an evolving dynamic, not a static concept.446McC1um supra note 13, at 119.“‘ Kuichyski, supra note 20, at 13.448 R.G. Williamson, “Cross-Cultural Dialogue Between Governments” in Grosse, YoungbloodHenderson & Carter, eds., Continuing Poundinaker & Riel ‘s Quest (Presentation Made at a Conference onAboriginal Peoples and Justice) (Saskatoon: Punch Publishing, 1994) at 171.105One of the most interesting discussion about the cultural differences between Aboriginal and non-Aboriginal societies is found in Rupert Ross’ Dancing with a Ghost. The central theme of Ross’ workis that Aboriginal and non-Aboriginal culture are “...separated by an immense gulf, one which the Euro-Canadian culture has never recognized, much less tried to explore and accommodate.”45°According toRoss, the dominant culture’s traditional lack of recognition of cultural differences has its roots incolonialist ideology.45’ Thomas Berger was also of this opinion when he wrote that “[a] lack ofunderstanding and of sensitivity to native peoples and native values is endemic to European-derivedpolitical systems.”452 He then adds that:Euro-Canadian society has refused to take native culture seriously. European institutions, valuesand use of land were seen as the basis for culture. Native Institutions, values and language wererejected, ignored or misunderstood and - given the native people’s use of land -the Europeans hadno difficulty in supposing that native people possessed no real culture at all.453A good example of the cultural misunderstandings between Euro-Canadian and Aboriginal societies canbe found in the Gitksan and Wet’suwet’en case, where Chief Justice McEachern offers the followingexplanation for the problems Aboriginal peoples face with the present society: “In my view the Indian’slack of cultural preparation for the new regime was indeed the probable cause of the debilitatingdependence from which few Indians in North America have not yet escaped.”454 This comment clearlyreflects an underlying assumption of inferiority by implying that the problem lies within the limitations ofAboriginal culture to adapt to the dominant legal culture.I submit that the resolution of cross-cultural conflicts will depend upon the recognition and understandingof the cultural differences between the parties. As Rupert Ross pointed out:We interpret what we see and hear through our own cultural eyes and ears. When we deal withpeople from another culture, our interpretations of their acts and words will very frequently bewrong. It follows that when we respond to their acts and words, relying upon our interpretationsof them, we will respond by doing and saying things which we would never consider appropriateR. Ross, Dancing With a Ghost: Exploring Indian Reality (Markham, Ontario: Octopus PublishingGroup, 1992).450Ibid, at xxii.451 Ibid.452Berger supra note 112, at 8.Ibid, at 22.454Delgamuukw v. The Queen, [1991] 3 W.W.R. 97 at 268-269.106had we known the truth. (...) [WJe have not understood the degree to which the rules of theirculture.., differ from ours. We must learn to expect such difference, to be ever wary of using ourown cultural assumptions in interpreting their acts and words, and to do our best to discover theirrealities and their truths.455One of the most important cultural differences which contribute to creating misunderstanding duringnegotiations is the native language of the various groups involved in land disputes.1.1 LanguageLanguage is the common thread within a culture - its way of expressing feelings, concepts, understandingand aspirations. Language is a reflection of a way of thinking - it expresses the thoughts emanating fromthe mind.456 As noted by Edward Hall, “people from different cultures not only speak different languages,but inhabit different worlds... so that experience as is perceived through one set of culturally patternedsensory screens is quite different from experience perceived through another.”457In Canada, the different Aboriginal groups developed distinct languages over thousands of years, each ofwhich reflected a unique lifestyle. After the arrival of Europeans, many First Nations learned one or bothof Canada’s official languages (through residential schools for instance) and English and French are nowthe official languages for the negotiation of land claims with governments. However, it is important tonote that First Nations people do not use English words in the same way as people who do not share theirculture with them. For instance, Aboriginal and non-Aboriginal peoples all use the words “respect” or“responsibility” but they mean different things.458 Chief John Snow explains the difficulty of expressingAboriginal concepts in a different language:Today we are being asked to spell out our Indian rights in a foreign language - the Englishlanguage - in constitutional form. We are accustomed to talking about our rights in our ownlanguages with our elders. Because of problems of interpretation we have always been in a weakposition in our dealings with government. We have experienced an additional disadvantagebecause we have had to pursue our rights through the English legal and legislative systems.R. Ross, “Leaving Our White Eyes Behind: The Sentencing of Native Accused” (1989) 3 C.N.L.R. 2.456 T.T. Daley, “Where Culture Clash: Native People and a Fair Trial” (1992) 8 C.F.L.Q. 301 at 305.B. Hall, The Hidden Dimension, (New York: Doubleday, 1966) at 2 quoted in LeBaron Duryea, supranote 14, at 18-19; See also Canada, The Canadian Indian (Ottawa: Queen’s Printer, 1990) at 6-8.458 Monture-Okanee (1991), supra note 208, at 356.107Explaining our rights in a foreign language is almost impossible, because sometimes we cannotfind English words equivalent to our Indian words.459Further, another important difference in the way First Nations communicate is the body language. J.T.L.James stated that the usual non-Aboriginal’s tone of voice, or volume, may prove unduly intimidating,being so different to that used by Aboriginal people who lower their voice in serious matters. He explainsthat:Non-verbal communication is important in any culture but perhaps more so amongst people who,in their close relationship with nature, read signs invisible to us. Our body language displays ourimpatience, frustration and rejection of their shrugs, downcast eyes and shuffling. The nonverbal impasse can be as damaging as the verbal one in achieving the ends ofjustice.46°Communicating with another culture requires an understanding of its values, perceptions, andphilosophies. However, governments have not always tried to understand the unspoken assumptionsunderlying Aboriginal words. Thus, it could be argued that Aboriginal people are put at a disadvantage inthe negotiation process because of the differences in the language and the meaning of crucial conceptswhich are negotiated.1.2 Decision-MakingAs Leghorn suggests, “..,both Natives and government participants should be familiar with each other’sculture, values, and decision-making processes, so that this type of ignorance doesn’t bias the entireproceedings.”461Marg Huber reports that Canadian native community leaders have listed the following as Aboriginalvalues concerning conflict: “cooperation, equality among people, harmony, non-interference in individualmatters, consensus decision making, privacy, a holistic approach to life, respect for elders, the relativity oftime, and spirituality.”462 The literature reports that Aboriginal cultures value open and continuousSnow, supra note 387, at 41.‘° J.T.L. James, “Towards a Cultural Understanding of the Native Offender” (1979) 21 Can. J. Crim. 453at 456.461 Leghorn, supra note 90, at 7.462 Quoted in LeBaron Duryea, supra note 14, at 35-36.108dialogue and consensus.463 The decision-making process is horizontal and issues are discussed and dealtwithin their own context.464 All members participate in decision-making as a collectivity.465 The powerof decision is traditionally vested in the total membership of the group or band, and unanimous consent isrequired before action is taken. Chiefs are spokespersons for the group and elders are generally alwaysconsulted before final decisions affecting the community are made.466 The problems and disputes arediscussed openly and are not limited to formal forums governed by set timeframes. Process with integrityis more important than quick and binding solutions, since joint decision-making is thought to facilitatepeople abiding by the decisions which are arrived at.467 All these factors serve to empower individualcommunity members and uniIr the collective community. As reported by the Osnaburgh/Windigo TribalCouncil Justice Review Committee: “Disputes would be solved by a person known to both disputants, incontrast to the impersonalized machinery adopted by the Euro-Canadian justice system. When a disputearose, it tended to involve other members within the same community and a well-understood systemexisted to resolve itself.”468In the negotiation context, it may become increasingly clear that the two sides are operating under twodistinct value systems, which in turn can lead to very different tactics and strategies.469 It is submittedthat the usual negotiation style of the government - the competitive model - reflects the non-Aboriginalcultural values. As stated earlier, the competitive approach is generally characterized by confrontation,adversarial tactics, and claiming strategies.47°This discourse then usually dominates the atmosphere ofnegotiations, since Aboriginal claimants have no leverage to force governments to use the integrative463 See, for example, Ross (1992), supra note 449, at 21-23; McCallum, supra note 13, at 125.464 M. Coyle, “Traditional Indian Justice in Ontario: A Role for the Present?” (1986) 24 Osgoode HallLaw J. 605 at 614.465 Boldt and Long, supra note 109, at 169.466R Fumoleau, As Long as this Land Shall Last: A History of Treaty 8 & Treaty 11 1870-1973 (Toronto:McClelland & Stewart, 1974) at 151; Boldt and Long, supra note 109, at 169; Richardson (1975), supranote 227, at 304-305.467 Ross (1992), supra note 449, at 23.468 Report of the Osnaburgh/Windigo Tribal Council Justice Review Committee (1990) at 4-6.469 Brienza, supra note 172, at 182-183.See, for example, I. La Rusic, Negotiating a Way of Lft: Initial Cree Experience with theAdministrative Structure Arisingfrom the James Bay Agreement Montreal: ssDss, 1979) at 2 and 32; Seegenerally, Feit, supra note 161.109approach of negotiation. In traditional Aboriginal society, confrontation is usually avoided at all costs.47’However, if First Nation withdraw from confrontation at the negotiation table, they risk being exploited orignored.In the negotiation process controlled by Euro-Canadian governments, Aboriginal claimants must adapt tothe dominant cultural framework by translating their values and priorities into the language of thedominant discourse with the associated risk of misrepresenting the true aspirations of the Aboriginalcommunity.472 As Leghorn observed: “... Natives need complete understanding of the liberal capitalisteconomic system and representative democratic political structure within which they are pursuing theirclaims.”473 In order to protect their rights and adjust to the government’s negotiation strategy, FirstNations must be as technical, adversarial and legalistic as governments.474 As a result, First Nationsbecome more dependent upon legal consultants and technical experts which may, in the long-term, affectthe way of life of some Aboriginal communities. As reported by Ignatius E. La Rusic in relation to thenegotiation of the James Bay Agreement, “...the legalistic tone established during the negotiationscontinues to influence a major part of the Cree administrative operations, which have since developed.”475Part ifi Strategies to Improve the Negotiation ProcessA. Lessons Learned from the Yukon AgreementBefore examining various strategies to improve the existing negotiation process, it is useful to look at onesuccessful experience that occurred in the Yukon, I will briefly summarize the history of the dispute andthen examine the process which was followed during the negotiations.471 Ross, supra note 449, at 8.472 McCallum, supra note 13, at 130.Leghorn, supra note 90, at 13. NOTE: See for example the James Bay and Northern QuebecAgreement negotiations in which the Cree and Inuit adopted very confrontational strategies and tactics.For a more detailed discussion of these negotiations, see LaRusic, supra note 470, at 21.‘ NOTE: For example, in an article about the James Bay and Northern Quebec Agreement, the thenChief of the Crees, Billy Diamond said that “[alt our insistence technical and legalistic language was usedto ensure precision in defining our rights... We were determined that our rights would be written downwith as much precision as possible. Diamond, supra note 282, at 281.For a very thorough discussion of these issues, see La Rusic, supra note 470 at 45.1101. BackgroundIn early 1973, the Council for Yukon Indians submitted its claim, entitled Together Todayfor ourChildren Tomorrow, and negotiations commenced by late 1973. In 1984, an agreement-in-principle wasreached and was ratified by both the federal and territorial governments, but failed to get the necessaryratification of the 14 Yukon First Nations as they were concerned with provisions that required Aboriginaltitle to land and resources to be extinguished. In 1987, negotiations continued under the newcomprehensive claims policy and with a specific Cabinet mandate. Between October 1987 and November1988 the parties negotiated an agreement-in-principle which was finally ratified in 1989.476 Theagreement includes provisions to the effect that Aboriginal title will not be extinguished on mostsettlements lands, for a framework to negotiate self-government agreements, and for rights to subsistencewildlife harvesting. Due to the complexity of the issues to be resolved, the parties agreed to proceed witha series of agreements which include:- an umbrella final agreement, which will be general in nature and will apply throughout thesettlement area;- individual Yukon First Nation final agreements, which will incorporate all of the provisions ofthe umbrella final agreement and will address the specific circumstances of each Yukon FirstNations.- transboundary agreements, which will resolve overlapping claims of Aboriginal groups in theYukon, the Northwest Territories and British Columbia;- self-government agreements, to be negotiated concurrently with claims agreements in accordancewith specific guidelines for self-government negotiations;- implementation plans for the umbrella final agreement, Yukon First Nation final agreements,self-government agreements and transboundary agreements;- financial transfer agreements; and- settlement and self-government legislation.477In May 1992, the Yukon Indian Umbrella Final Agreement was initialed by negotiators for the federal andterritorial governments and was later ratified by all the parties. To date, four Yukon First Nation finalagreements have been ratified which include Champagne and Aishihik, Nacho Nyak Dun, Teslin TlingitCouncil, and Vuntut Gwitchin. Each of these four First Nations has ratified self-government agreements476iight supra note 378, at 66.“ Elliot, supra note 19, at 180.111and the respective implementation plans for each of the claim and self-government agreements.478Negotiations are currently continuing with additional Yukon First Nations.2. Principles of the ProcessChris Knight, chief negotiator for the Land Claims Secretariat, Yukon Territorial Government reportsthat the negotiation process was based on four basic principles: (1) the negotiations would be “principled”;(2) the process would be “community-based”; (3) the process would be “open”; and (4) timelines werenecessary to impose discipline.479 As described at the beginning of this chapter, principled negotiations“focus on interests, not positions, and place a high value in the integrity of the relationship among theparties both during and after the negotiations.”480 Knight explains that this approach “requires morework, more preparation, more focus on process design, but the main thing it requires training.”48 Theprocess in the Yukon was “community-based” with negotiation table rotating to the various Yukoncommunities. Knight describes the benefits of a community-based process. He explains that thisapproach makes the process more real to the people it most directly affects, the Aboriginal people andtheir neighbors at the community level. Aboriginal people have the opportunity to better understand theissues and accept the need to compromise during the negotiating process. It also provides directcommunity access to the negotiators of both parties. Government negotiators have an opportunity tounderstand in context the practical application of the issues and concepts being negotiated. Finally,community-based negotiation allows negotiators to “ratify as they negotiate” by ensuring that thedecisions reached at the negotiating table have support at the community level.482 This concept of “ratifyas you negotiate” directly depends on the degree to which the process is open to all interested parties. Inthe Yukon, Knight reports that from the beginning of the process, negotiators from all parties discussed478 Ibid.Knight, supra note 378, at 66.480 Ibid at 67.481 Ibid.482 Ibid at 67-68112with fifty to sixty different interest groups on the process of negotiation and on any specific issues ofinterest to them.483Finally, a deadline of nine months was imposed on the Agreement-in-Principle negotiations. It is arguedthat this deadline kept the parties focused on the process and provided some leverage for resources tosupport the negotiations.4843. Lessons LearnedThis successful experience can teach us many lessons about the negotiation process. First, Knight learnedthat “a broad base of support for the agreement is a very tenuous thing; and once you open lines ofcommunication with a large number of interest groups, you had better keep them open or they will besnapping at your heels.” 485 Secondly, Knight contends that political leaders of all parties must also beinvolved at strategic points throughout the process to make it successful. Thirdly, it seems that there is aneed to implement parts of the agreement as they are negotiated in order to “test drive” some of thestructures and processes and see how they work. Finally, an important lesson to be learned is that “thepeople at the table must strive to reach a high level of cross-cultural awareness and understanding, andwithout it, all the training in interest-based negotiations in the world won’t yield successful results.”486Even though northern Aboriginal claims settlements are, in many ways, different from the southernmodern treaties, the principles on which the Yukon negotiations were based are relevant and should befollowed in other negotiations involving First Nations and Canadian governments.B. Strategies to Improve the Existing Process4831bid, at 68.4841b1d, at 68-69.4851bid, at 69.486113This Chapter has examined some of the problems with the federal government land claims policies andprocesses, and discussed the difficulties arising from the cultural differences and the disparity in therelative power of the parties. I will now explore some strategies to improve the process in order to achievefair and expeditious settlements of land claims.1. Pre-Negotiation Strategies1.1 Redressing the Power ImbalanceIn the past, Aboriginal groups have used different strategies to redress bargaining power inequalities. Forinstance, Aboriginal groups have resorted to tactics of confrontation. They have organizeddemonstrations and engaged in other “nuisance” activities in order to maximize the interests ofgovernments in settling claims.487 These actions have generally been successful in moving Aboriginalissues to the centre of the national agenda.488 John Borrows is of the opinion that “...political action willbe the most successful strategy First Nations can employ to contest the oppression of their governmentsand reinvigorate the obligations of the power they possess.”489The courtroom has also been used to correct a disparity in the balance of power. Some Aboriginal leadersfeel that they should litigate first to have their rights affirmed and quantified, in order that they might sitwith greater political power at the negotiation table.49° The setting of precedents can induce governmentsto engage in negotiations and give leverage to Aboriginal claimants on some substantive issues.First Nations should also explore other sources of power. For instance, they should consider the power ofcoalition by trying to build alliances with other interested parties to the negotiations - such as buildingunderstanding and friendship with municipalities, corporations and industries. The power of principlesshould also be used in promoting fairness in an attempt to influence the public opinion. There is always487 Colvin, supra note 54, at 17.488 Fleras & Elliot, supra note 63, at 86.489 Borrows, supra note 190, at 7.490 Brienza, supra note 172, at 172.114the power of information which can be utilize by First Nations with their knowledge of their histoiy and agood preparation to the negotiation.4911.2 Land Claims PoliciesThe policy-making process must change for allowing meaningful participation of Aboriginal people in thefonnulation of land claims policies. As mentioned earlier, the power of the federal government tounilaterally develop land claims policies is unfair, since it can and does formulate policies which operatein its favor. Thus, the goals and purposes of negotiations, as well as the agenda for negotiations, shouldbe decided by both parties. Further, in formulating land claims policies, the government must be willing toconsider alternatives to extinguishment. As discussed earlier in this chapter, the requirement ofextinguishment has been and remains a major impediment to resolving comprehensive claims. TheReport of the Task Force to Review Comprehensive Claims Policy suggests that[tb be workable, an alternative to extinguishment must have at least four characteristics. First, itmust be acceptable to the aboriginal people concerned, for their rights cannot be altered withouttheir consent. Secondly, to encourage investment in, and development of, property rights, it mustenable the granting of secure rights to lands and resources. Thirdly, it must be simple, becausecomplex approaches promote legal uncertainty. Fourthly, it must be familiar, so that rights canbe defined to fit comfortably into the dominant property law system.492Finality may not be realistic but certainty could be achieved through the establishment of a betterrelationship between the parties and a long-term “social contract.”493 This was also the view of LloydBarber in 1977 when he stated “I would urge the Government and native people to strive for an agreementwhich is flexible enough to permit the necessary positive evolution. I don’t think anyone can draw out adetailed master plan for the future, and the settlement terms should provide the greatest possible latitudefor change. Rigidities may only lead to a new set of problems.”494491 NOTE: These advice were given by Professor Susskind, Director, MIT - Harvard Public DisputesProgram at Harvard Law School at the Conference Land Claims in Canada: Beyond the Rhetoric - ADebate About the Critical Issues, June 27th, 1996.492 Living Treaties: Lasting Agreements, supra note 8, at 41.NOTE: Murray Coolican stated that “[t]he approach we recommended must also allow for flexibility.Settlements must recognize the regional differences in the country as well as the different aspirations andhistories of the aboriginal and non-aboriginal communities within a settlement area.” Supra note 22, at 8.Commissioner, supra note 67, at 45 and 50.1151.3 Conflict of InterestThe federal government should not be able to unilaterally decide which claims to negotiate, as this gives itan unfair advantage over the claimants. The conflict of interest must be resolved. In any dispute, it isillogical to have the opposing party decide whether or not the claim against it is valid. Decisions as towhich claims to negotiate should be made by an independent body which oversees the land claims process.The same approach should be adopted for funding. Funding for Aboriginal claimants to research andpursue negotiations should cease to be administered by the federal government. The funding processmust allow First Nations to have adequate and secure funding as well as the integrity of making their owndecisions about their research priorities.1.4 Building TrustConsidering that the First Nations and governments are unlikely to trust each other at the beginning ofany negotiation, the development of safeguards is needed to compensate and to help building a moretrusting relationship between the parties. Different means can be used to accomplish this, such asreplacing trust by a firm commitment to the process, creating several procedural rules, defining in a jointprotocol important terms (such as consultation), implementing parts of the agreement as they arenegotiated in order to test the good will of the other parties to comply with the agreement.495 The IndianCommission of Ontario has also suggested that “[firom the time of initial submission of a claim untilcompletion of the negotiation for compensation, all parties should submit to the negotiation, includingcomplying with reasonable deadlines, being bound by admissions, and negotiating in good faith.”4962. Procedural Issues2.1 FlexibilityNOTE: For instance, the term “consultation” was defined in the Yukon Umbrella Agreement.496 ICO (1990), supra note 39, at 101.116In order to redress inequality of power, it is essential that no party be in a position to dictate to the otherwhat the fundamental issues are to be discussed during the negotiations. The land claims process must beflexible to accommodate any revisions during the negotiations, due to changing circumstances. Moreover,as a general rule, due to the complex nature of comprehensive claims and the difficulty of compromisingon fundamental cultural and spiritual issues, single-issue settlements should be possible, which may eitherstand alone, or be incorporated into any subsequent comprehensive settlement.4972.2 Interest Based NegotiationThe process should be designed to encourage the parties to engage in integrative bargaining rather thancompetitive negotiations. To move the parties from positional bargaining to problem-solving negotiation,the Indian Commission of Ontario suggests that all parties be requested to bring forward concrete optionswhich they sincerely believe all parties could live with, to do collective research, and to use “one neutraldraft” to formulate an agreement.498 Further, considering that the parties are unlikely to be prepared tomake any compromise in relation to their values or their legal rights, the focus should then be onnegotiating in respect of their respective behaviour and performance. This approach requires an earlyacknowledgment and acceptance of each party’s view of their values and legal rights. It also requires therecognition of the legitimate aspirations and limitations of the other parties. “All parties must adopt afresh solution-oriented approach, unencumbered by the past.”4992.3 Third-Party InterestsIt has been recognized that if a settlement is to be successful and respected, it must be accepted in somemeasure by third-parties in addition to the parties at the negotiating table. Therefore, without makingland settlements based on valid rights subject to the public opinion, there needs to be some involvement ofthe parties affected by a proposed agreement. However, it must be noted that even when specific interest4971b1d, at 31.498 ICO (1994), supra note 152, at 52.NOTE: The ICO reports that progress in claims negotiation is often slowed down by personalityconflicts. ICO (1994), supra note 152, at 31.117groups are being consulted regarding the details of a proposed agreement, they often lack the basichistorical background to assess the fairness of such agreement. Therefore, there should firstly be somepublic education to inform all Canadians about the general legal, constitutional and historical aspects ofland claims issues. There should then be consultations with third-party interests on proposed agreementsto ensure a fair representation of their concerns at the negotiation table and to allow for the building of anew relationship between Aboriginal and non-Aboriginal society.2.4 Dispute Resolution Mechanisms to Break ImpassesPrior to substantive negotiations, the parties should agree upon mechanisms to resolve disputes which mayarise during negotiations and which the parties are unable to resolve themselves. Provision could bemade, for example, for unresolved conflict to be dealt with by mediation or arbitration. Manycommentators have suggested the creation of an independent body which would supervise the negotiationsby setting timeframes and deadlines and would have adjudicating powers when the parties are unable toreach an agreement on one or many issues. This option will be discussed in more details in Chapter Six.Further, the possibility to refer some difficult issues to a neutral fact-finding body, designed to perform aninvestigatory role, could also be used in conjunction with negotiation. Findings and/or recommendationswould be reported to the parties and contained in public reports, but remain unbinding on the parties.One illustrative example of such a body is the Waitangi Tribunal in New Zealand which will be discussedin Chapter Five of this thesis.2.5 Interim Measures AgreementsIt is also recommended that interim measures agreements be agreed upon, either before or duringsubstantive negotiations, to protect an interest being currently affected as it could undermine theprocess.50°5001b1d, at 63.1182.6 ImplementationThe implementation of settlement agreements should also be agreed upon during the substantivenegotiations.50’This would diminish the risk of future conflict by making all parties accountable for theircommitments. This would also contribute, in the long run, to building trust between the parties.3. Cultural Understanding - Developing a Language of Perspicuous ContrastIn developing strategies to improve negotiations between Aboriginal and Euro-Canadian governments,cultural differences must receive particular attention. According to Monture, there are two things thatmust be understood when exploring cultural differences. First, “[t]he ways of First Nations cannot beunderstood or explained at a glance. And second, that these ways are not the same as the ways known tothe ‘dominant society’.”502 She also stated that “...the source of misunderstanding between Canadians andAboriginal people is often the result of an inability to communicate across the different world views.”503In order to bridge the gulf that divides Aboriginal and Euro-Canadian society,504 Euro-Canadians mustconsider the preliminary assumptions underlying their beliefs and ideas. These assumptions shape thecontent of the Euro-Canadian way of thinking. 505 This reevaluation is necessary before any other step istaken to change the relationship between Aboriginal and non-Aboriginal peoples. Borrows explained thetwo steps of developing a language of perspicuous contrast:In generating a language of perspicuous contrast, one neither speaks wholly in the language ofthe dominant society nor does one speak fully in the language of the suppressed. The language ofperspicuous contrast incorporates perspectives from both cultures and requires that I question myown perspective while simultaneously challenging the other. The distinctions revealed in thisprocess underscore and accentuate where confusion, misinformation or self-contradictions existin our shared universe. A blending and mingling of perceptions will produce a language whichwill neither be fully Native, nor will it be entirely “western”. The testing of each perspectiveagainst the other creates a new language because it allows for the critique and incorporation ofconceptions from diverse cultural understandings.506501 Jbid, at 30.502 Monture (1991), supra note 208, at 355503 P. A. Monture-Okanee, “Alternative Dispute Resolution: A Bridge to Aboriginal Experience?” in C.Morris and A. Pine eds., Qualifications For Dispute Resolution: Perspectives on the Debate, (Victoria:UVic Institute for Dispute Resolution, 1994) 131 at 135.Ross (1992), supra note 449, at xxiv.505 Monture (1991), supra note 208, at 351.506 Borrows supra note 190, at 7-9.119In the negotiation context, Aboriginal cultures could be legitimized and empowered by giving recognitionto cultural differences and by developing a language of perspicuous contrast. By focusing on culturaldifferences, the emphasis moves away from ethnocentrism to cultural wealth and diversity. This could betranslated in practice by conducting negotiations on the community lands as often as possible as itpromotes cultural understanding and facilitates consensual decision-making. Further, negotiations shouldbe less formal and should be complemented by some social interaction in order to cultivate a positiverelationship and increase the trust between the parties. In fact, it has been suggested that familiarity andliking are significant factors in ensuring flexible and successful negotiations.507ConclusionIn this chapter, I have attempted to examine the principal difficulties with the land claims negotiationprocess as set up unilaterally by the federal government. The application of adversarial negotiationstrategies contributes to disempowering Aboriginal groups. The control of the goverument over thedevelopment of land claims policies, the acceptance of claims to be negotiated and the funding for FirstNations create a situation of conflict of interest which is intolerable.Thus, there is an urgent need to redesign the negotiation process in a way which strengthen thebargaining power of Aboriginal groups and avoid any form of conflict of interest. In this chapter, severalsuggestions were made to answer some of the procedural and substantive problems with the presentnegotiation process and improve the relationship between Aboriginal and non-Aboriginal societies. Thedevelopment of a language of perspicuous contrast could be an ideal approach to encourage EuroCanadians to question the preliminary assumptions underlying their beliefs and ideas and legitimateAboriginal values in the eyes of the dominant culture. In order to achieve fair and reasonable settlements,there must be a real cross-cultural dialogue between the parties during negotiation which recognizes thedifferences in culture.507 D. Druckman and B.J. Broome, “Value Difference and Conflict Resolution” (1991) 35 Journal ofConflict Resolution 571 at 572.120CHAPTER FOUR MEDIATION AND ARBITRATIONIt has been suggested that the limitations of negotiation and the inherent problems of litigation provide astructural explanation for the existence in most societies of some institutions of more informal third-partyintervention in dispute-resolution.508 This Chapter will examine the theories of mediation and arbitrationand apply these theories in the context of Aboriginal land claims. This Chapter is divided into three parts.Part I will explore the mediation process with a particular focus on the transformative potential of thisdispute resolution mechanism. Part II will discuss the use of arbitration and the combination of mediationand arbitration to resolve Aboriginal land claims. Finally, Part III will assess the appropriateness of theseprocesses to resolve the land question in Canada.Part I MediationA. Theories of Mediation1. DefinitionMediation is generally understood as an informal process in which a neutral third party with no power toimpose a decision helps the disputing parties in reaching a mutually acceptable settlement.509 The mainrole of the mediator is one of exchanging information and bargaining. The mediator may assist disputantstowards agreement by, for example, identifying their areas of common interest and suggesting terms ordirections for a mutually acceptable compromise.51°The mediator may also assist in defining and draftingthe final agreement. Mediation consists ofjoint meetings, private session, or a combination of both.There must be a degree of trust and rapport between the mediator and the parties for the process to workeffectively. Unlike litigation where legal discourse dominates, mediation may involve other values andconcepts such as fairness, morals, and ethical concerns. This common description captures some of the508 R. Schwartz and J. Miller, “Legal Evolution and Societal Complexity” (1964) 70 Am. I. Soc. 159.509 Moore, supra note 369, at 14; Roth, Wulif and Cooper, supra note 309, at 23:3; Nolan-Haley, supranote 167, at 56.510 Colvin, supra note 54, at 6.121major characteristics of the process, especially its informality and consensuality. It also reflects the viewthat the most significant effect of the process is the production of a voluntary settlement of the dispute.51’However, it must be noted that the mediation model is not a monolithic structure and there are stilldebates among practitioners and academics about its exact parameters and appropriateness in varioussettings.512 Moreover, mediation has been used in Canadian Aboriginal societies for hundred of years andmediation as practised among Aboriginal people is different than the Euro-Canadian model. In fact,while there is an emphasis on solving the immediate dispute in Aboriginal mediation, there is also a muchstronger focus on healing and rebuilding the relationship that existed before the dispute than in thegeneral North American model of mediation.5132. Types of MediationThe literature on mediation has identified two types of mediation: rights-based and interests-basedmediation.514 In the rights-based model, the process is influenced by what the parties believe would beavailable to them in a court of law. In this type of process, there is more focus on the immediate disputerather than the underlying conflict. Nolan-Haley points out that “[a]n exclusive emphasis on rights,however, encourages positional bargaining and undercuts the value of the mediation process.”515 On theother hand, interest-based mediation attempts to help disputing parties understand the underlying needsand interests of the other party. This approach is more focused on the underlying conflict which gave riseto the dispute between the parties.3. Transformative Potential511 R A. Baruch Bush and J. P. Folger, The Promise of Mediation - Responding to Conflict ThroughEmpowerment and Recognition (San Francisco: Jossey-Bass Publishers, 1994) at 2.512 LeBaron Duryea, supra note 14, at 11.513 Ibid at 12.514 Nolan-Haley, supra note 167, at 57.Ibid.122Practitioners and scholars have started to explore some other effects of mediation apart from settlementper Se. It is suggested that the mediation process contains within it “a unique potential for transformingpeople - engendering moral growth- by helping them wrestle with difficult circumstances and bridgehuman differences, in the very midst of conflict.”516 This transformative potential comes from thecapacity of mediation to generate two important effects: empowerment and recognition.3.1 Empowerment“Empowerment means the restoration to individuals of a sense of their own value and strength and theirown capacity to handle life’s problems.”517 Empowerment does not mean redressing the imbalance ofpower within the mediation process itself in order to protect weaker parties.518 Similarly, empowermentdoes not mean controlling or influencing the mediation process so as to produce outcomes that redistributeresources or power outside the process from stronger to weaker parties.519 Finally, empowerment does notmean increasing the power of either party by becoming an advocate, adviser, or counselor. Bush andFolger suggest rather that “the objective of empowerment does not require or support the mediator’staking sides, expressing judgments, or being directive. In fact, empowerment in a transformativeapproach to practice requires avoiding all these behaviors.”520 Thus, this potential effect of mediationmeans empowering each of the parties so that they can each optimize their strength and feel confident intheir value.3.2 RecognitionAccording to Bush and Folger, recognition means “the evocation in individuals of acknowledgment andempathy for the situation and problems of others. Recognition means giving recognition to another, notgetting it from another.”521 Recognition does not necessarily mean reconciliation nor does it mean the516 and Folger, supra note 511, at 284.517 Ibid, at 95.5181bid, at 95-96.5191bid, at 96.520 Ibid.521 Ibid.123mere realization of one’s enlightened self-interest. The purpose of recognition is abandoning “. . .one’sfocus on self and becoming interested in the perspective of the other party as such, concerned about thesituation of the other as a fellow human being, not as an instrument for fulfilling one’s own needs.”5224. Attitude of the Mediation MovementIt is suggested that when both empowerment and recognition are central in the practice of mediation,parties are helped to use conflicts as opportunities for moral growth, and the transformative potential ofmediation is realized.523 Slowly, the mediation movement is starting to realize how important the effectsof empowerment and recognition really are. According to Bush and Folger,The broader significance of these phenomena is becoming clearer as dispute resolution scholarssee that mediation’s transformative dimensions are connected to an emerging, higher vision ofself and society, one based on moral development and interpersonal relations rather than onsatisfaction and individual autonomy. Scholars and thinkers in many fields have begun toarticulate and advocate a major shift in moral and political vision- a paradigm shift - from anindividualistic to a relational conception. They argue that, although the individualist ethic ofmodern Western culture was a great advance over the preceding caste-oriented feudal order, it isnow possible and necessary to go still further and to achieve a full integration of individualfreedom and social conscience, in a relational social order enacted through new forms of socialprocesses and institutions.524it is also argued that the goal of transformation is even more important because it is one that only themediation process is capable of achieving. Other dispute resolution processes, such as litigation orarbitration, “...are far less capable than mediation (if at all) of fostering in disputing parties greaterstrength and compassion, and thus of achieving moral growth and transformation.”525 As a result, somesee transformation as the most important goal of mediation, since this valued goal is one that mediationalone can achieve.5221bid, at 96-97.523 Ibid at 2-3. NOTE: “Some have even come to realize that working for empowerment and recognitionusually results in reaching settlement as well, while focusing on settlement usually results in ignoringempowerment and recognition. So, while these different dimensions of mediation are not necessarilymutually exclusive or inconsistent, the relative emphasis given to them makes a crucial difference.”5241bid, at 3.525Ibid, at 30-31.124Although mediation provides a unique opportunity for achieving empowerment and recognition, itappears that the mediation practice has not yet realized that potential. Substantive evidence suggests thatmediation practice still focuses primarily on settlement. Thus, Bush and Folger observe that mediation“rarely generates empowerment and recognition, and even then it generally does so serendipitously ratherthan as a result of mediators’ conscious efforts.”526B. Mediation in the Context of Aboriginal Land Claims1. Advantages and DisadvantagesThe mediation process could be beneficial to the parties involved in Aboriginal land disputes. Mediationprocess is generally viewed as more expeditious, inexpensive, and procedurally simple than adversarialdispute resolution mechanisms.527 Moreover, as suggested by Durocher, “[i]n addition to being a liaisonbetween the parties in narrowing dowii their differences, the third party can act as a sounding board forthe frustrations of either side and can eliminate the need for the parties to vent their frustrations face toface.”528 As Professor Lon Fuller stated, mediation has the “capacity to reorient the parties toward eachother, not by imposing rules on them, but by helping them to achieve a new and shared perception of theirrelationship, a perception that will direct their attention toward each other.”529 Mediation has also a greatpotential as an empowering process, the parties having autonomy and control over the outcome of theprocess. Finally, a mediator can contribute to ensuring productive use of time by drafting agendas,framing the terms of discussion and developing ideas about the sequencing of negotiation tasks.53°However, mediation suffers from some shortcomings. In the present mediation setting, only the parties tothe dispute are present. Third parties might not be present or represented at the mediation sessions whereissues affecting them are being discussed and resolved. Moreover, many authors suggest that mediation5261bid, at 4.527 Nolan-Haley, supra note 167, at 57.528 Durocher, supra note 20, at 53.529 Quoted in Nolan-Haley, supra note 167, at 58.530Brienza, supra note 172, at 177-178.125works best where there is equal bargaining power on both sides.53’ It is suggested that “[b]y far the mostdifficult problem mediators face regarding relationships is the instance in which the discrepancy betweenthe strength of means of influence is extremely great.”532 Thus, given the imbalance of power between theFirst Nations and the governments, there could be some difficulties in using mediation in the land claimscontext. One solution could be to use procedural rules - including caucusing, providing information,bringing out the weaker party’s view through direct intervention, and openly addressing the issue ofpower- to try to redress the imbalance of power between First Nations and governments in the mediationforum. However, there exists a debate among mediators concerning the risk of assistance or possibleempowerment of the weaker party by the mediator. One school states that a mediator has an obligation tocreate just settlements and must therefore help empower the weaker party to reach equitable and fairagreements while another school argues that mediators should not do anything to influence the powerrelations of disputing parties because it taints the intervenor’s impartiality. As stated by Moore, “[t]hereis no easy answer to this strategic and ethical problem, but it does have an important impact on the typesof moves a mediator initiates.”533Finally, it has been suggested that the mediation model can not be exported wholesale to another culturalsetting. In fact, a study done by the UVic Institute for Dispute Resolution concluded that “the staged,linear model of mediation prevalent throughout North America has limitations when applied inmulticultural settings. There are limitations to the usefulness of third-party neutrality; certain widelytaught active listening skills; and the bias toward direct, face-to-face negotiation.”534 Therefore, someacademics contend that the promise of mediation as the appropriate model for resolving disputes inmulticultural contexts will only be realized if fundamental questions about the cultural dimensions ofmediation are addressed.535531 Moore, supra note 369, at 34-35 and 278. L. Nader, No Access to Law, (New York: Academic Press,1980) quoted in LeBaron Duryea, supra note 14, at 19.532 MOOre supra note 369, at 281.5331b1d, at 34-3 5; See also LeBaron Duryea, supra note 14, at 20.Lund, supra note 1, at 5. See also LeBaron Duryea, supra note 14, at 21.LeBaron Duryea, supra note 14, at 12-13.1262. Experiences with Mediation in CanadaMediation is not the most common process employed to resolve comprehensive land claims in Canada.However, according to Gordon Sloan, mediation and mediation-like methodologies have been used inCanada by various non-Aboriginal governments and Aboriginal groups to address multi-party issues.536In one particular dispute, the mediator concluded that[t]here is a vast cultural chasm between Indian people and the dominant majority in this society.That chasm cannot be bridged without effective communication and a willingness on the part ofboth parties to understand the cultural interests affected by the dispute. Mediation represents aneffective instrument for such communication. (...)This successful experience with mediation leadsme to conclude that in a dispute between Indian people and governments which requires effectivecommunication and which has it premise that the resolution must be mutually acceptable to all ofthe parties, mediation is preferable to such other alternatives as reference to a third-partytribunal. An arbitrator or a court would impose a solution to the problem and would have lessdiscretion in the matters that could be included in a solution.537Moreover, mediation has been adopted as a dispute resolution mechanism in the Yukon Umbrella FinalAgreement. Under that agreement, the parties must agree on the choice of a mediator. In addition toassisting the parties come to their own agreement, the mediator may, upon his/her own discretion, ormust, at the request of the parties, provide a brief non-binding written recommendation to the parties.538The Indian Commission of Ontario (ICO) also uses the mediation process as part of its functions. Asmentioned in Chapter One, the ICO was created in 1978 to operate as a neutral and independentTripartite Council comprised of the First Nations Chiefs of Ontario and representatives from the federaland provincial governments. The mandate of the Commission is to provide a forum for the negotiation ofland claims (specific claims only) and to deal with questions relating to Aboriginal self-government. To536 G.B. Sloan, Mediation in Multi-Party Settings (Materials prepared for Making Peace and SharingPower, Pre-Conference Workshop Using Third Party Neutrals) (Victoria, B.C.: University of Victoria,April 30, 1996) at 1.L. Mitchell, “Using Mediation to Resolve Disputes over Aboriginal Rights: A Case Study” in TheQuestfor Justice: Aboriginal People and Aboriginal Rights (Toronto: University of Toronto Press, 1985)286 at 289.538 Yukon Umbrella Final Agreement between the Government ofCanada, The Council for Yukon Indiansand the Government of the Yukon, May 30, 1990 [unpublished] at 274-275.127fulfill its mandate, the Commission chairs negotiating meetings, both in Toronto and on reserves, andmonitors progress in negotiations.539 The functions of the Commission also include providing resourcesto the parties, assisting in resolving procedural matters, and arranging for professional dispute resolutionservices such as facilitation, conciliation, mediation, and arbitration, to be made available to the parties.The powers of the Commission include the power to order the production of documents, impose deadlinesfor the completion of any process, ask questions and request responses from the parties, and adjournnegotiations. The Commission also has the power to recommend a formal inquiry into a matter as a wayof clarifying an issue. The ICO reports that it has used its formal powers very rarely in the last five years.The reason being that:Commission staff believe that encouraging the parties to find their own solutions is more likely toyield results than exercising authority to suspend negotiations or ordering parties to attend ameeting at which they are not prepared to make progress. Further, in some cases where the ICOhas considered it appropriate to use its powers to assist negotiations (for example, to arrange nonbinding arbitration to advance an issue), the Ontario and federal governments have refused toprovide their consent. 540The ICO’s preferred mechanism for assisting the parties in negotiations is through mediation. The ICOsuggests that a mediator can help the parties find common and creative solutions in the following way:54’(1) by monitoring each party’s undertakings in negotiations;(2) by discouraging the parties from taking an adversarial or positional approach, and encouragingthem instead to propose solutions which take into account all parties’ underlying interests;(3) through private discussions with each party, by encouraging them to reflect upon the wisdom andrealism of positions they bring to the negotiation table;(4) by suggesting options the parties may wish to consider that the negotiators themselves may not beauthorized to volunteer;(5) by co-ordinating neutral and independent research on behalf of all parties, rather than witnessingnegotiations degenerate into a wasteful and costly battle of each party’s experts;(6) by providing independent drafts of proposed agreements intended to meet all parties’ concerns,avoiding the pre-judgments possible from other parties where one party drafts its own proposedagreements;(7) by retaining independent, respected experts to offer their recommendations on issues over whichthe parties disagree, forcing each party to reconsider preliminary and self-serving positions theymay have tabled;(8) by calling the attention of the parties and the public to long-standing issues which the partieshave failed to resolve;(9) by maintaining, through its chairmanship of negotiations, an atmosphere of respect and creativityamong the parties; and539AnAgendaforAction, supra note 3, at 72.540 ICO (1994), supra note 152, at 19.541 Ibid, at 20-2 1.128(10) by offering an independent analysis of the parties’ policies or approaches to an issue whererequested by the parties and where this may eliminate procedural barriers to successfulnegotiations.Despite its role in helping in the resolution of Aboriginal disputes, the ICO has no power to compelperformance or attendance by governments, neither can it impose decisions on the parties. This meansthat negotiations will proceed only when governments will accept to cooperate. According to Colvin, theCommission.lacks the established institutional framework which could facilitate the speedy and effectiveprocessing of large numbers of claims, the authority to bring pressure to bear on recalcitrantparties, and the coercive powers in reserve to provide an incentive for compromise. It ismediation as a variation on direct negotiation rather than mediation as a genuine alternative indispute-resolution.542In 1990, after identifying the limitations of its mandate, the Commission made several recommendationsto review its mandate and powers. For instance, the ICO requested that:In an exceptional case of failure to make progress in negotiations chaired by the ICO, if oneparty wishes to review the bonafides of the other party’s commitment to resolve the issues fairlyand expeditiously, the Commissioner should be given the discretion, where formally requestedand where the Commissioner considers it necessary and appropriate, to review the conduct inquestion and make a finding on this issue for the benefit of the parties involved.543Moreover, in light of the refusal of the federal and Ontario governments to participate in non-bindingarbitration and neutral studies to break impasse in negotiations since 1986, the Commission concludedthat this attitude was promoting a lack of accountability and responsibility and recommended that it• . .be given the power and financial resources to obtain the views of respected and (wherepossible) mutually-agreed upon arbitrators or fact-finders in land claim negotiations. The viewsof such experts would not be binding on the parties and would be sought wherever an impasseover a legal or factual issue has, in the opinion of the Commissioner, caused an undue delay inthe negotiations.544Unfortunately, the recommendations made by the ICO in 1990 have not created the changes in the ICO’smandate and powers needed to achieve “mediation as a genuine alternative in dispute-resolution.”542 Colvin, supra note 54, at 27.ICO (1994), supra note 152, at 32Ibid, at 42-43.129Another independent Commission is also mandated to use mediation to resolve issues arising from landclaims. As mentioned in Chapter One, the federal government established in 1991 the Indian ClaimsCommission (ICC) as an interim measure to deal with specific claims disputes. The Commission’smediating role is defined in broad terms. The Commission has authority to “provide or arrange, at therequest of the parties, such mediation services as may in their opinion assist the Government of Canadaand an Indian Band to reach an agreement in respect of any matter relating to an Indian specificclaim.”545 The Commission reports that.mediation is intended to facilitate negotiations in the manner the parties deem appropriate. Itis therefore not possible to define and thus predetermine the specific nature of mediationactivities. Rather, the Commission views mediation as a process that responds to the localconditions of a specific negotiation. Appropriate forms of mediation are regarded as those thatare (1) bicultural, (2) informal, (3) non-threatening, and (4) flexible. Any mediation serviceoffered by the Commission is based on these four criteria.546According to Turpel, the ICC has, with only a few years’ experience, established credibility and developedexpertise on cross-cultural mediation and negotiation.547 However, concerns have been expressed that themediation capacity of the Commission is being overlooked because it has no “teeth” to supervisenegotiations except by the consent of the parties and its decisions are not binding. The ICC has no powerto ensure that negotiations proceed in a timely or fair manner, nor does it have the power to assist theparties to break impasses. The ICC reports that it has received numerous requests from First Nations formediation but very few from Canada and it seems that Canada is generally reluctant to agree to mediationwhen requested by a First Nation. According to the Commission, one of the primary reasons for this isdue inherent bias in Canada’s claims policy which presumes that mediation is appropriate onlyin exceptional circumstances. Despite statements from Canada’s representatives to the effect thatthey are prepared to use the Commission’s mediation services, DIAND has traditionally beenvery inflexible in its assessment of when mediation is appropriate.548R. Maurice, “The Indian Claims Commission and Alternative Dispute Resolution” (Discussion Paperprepared for the Land Claims in Canada: Beyond the Rhetoric - A Debate About the Critical Issues(National Conference, Toronto, June 26-27th, 1996) at 1.5461C0 (1994), supra note 152, at ix.Turpel (1995), supra note 2, at 101.548 Maurice, supra note 545, at 2; See also Indian Claims Commission, Annual Report 1994/1995(Queen’s Printer, 1995) at 9 and 13-15. [hereinafter ICCAnnual Report 1994/1995]130The Commission also noted another reason why Canada has often rejected ICC’s mediation requests. Itappears that “...Canada has suggested (at least informally) that they perceive the Commission as beingbiased in favour of First Nations.”549 Finally, the ICC also noted that one of the difficulties in obtainingCanada’s consent to mediation might be that there is no formal mechanism in place to properly assess therequest to determine whether it is appropriate for mediation.55°On June 27th, 1996, the five Commissioners presented a letter of resignation to Prime Minister JeanChrétien and national Chief Ovide Mercredi. In their letter of resignation, the Commissioners explainedthat their work was “severely undermined” by the government’s lack of response to the ICC’s reports.They have therefore decided to stop accepting new claims inquiries as of September 1, 1996 and theactivities of the Commission will end March 31, 1997. The Commissioners have also mentioned that theywill table “if necessary” a special report in October with recommendations for an independent claimsbody.55’ It is therefore up to the government to fulfill its election promise of 1993 and create anindependent claims Commission with a meaningful mandate. The future of the ICC remains highlyuncertain to this date.Part II ArbitrationA. Theories of Arbitration1. DefinitionIn arbitration, the parties present their cases to a neutral third-party person or panel who has the power torender a decision which could be either binding or non-binding on the parties. Contrary to courtproceedings, arbitration can involve other considerations than law if all parties agree. Procedures are alsocontrolled by the parties, and can be more flexible than in a court of law. The parties themselves canselect the arbitrator(s). As noted by Nolan-Haley, “[a]rbitrators typically have more expertise in theMaurice, supra note 545, at 2.550Jbid, at 5; ICC Annual Report 1994/1995, supra note 548 at 9 and 13-15; Indian Claims Commission,Annual Report 1991-1992 to 1993-1994 (Queen’s Printer, 1993) at 13.‘ J. Aubry, “Land claims commissioners resigning to protest inaction” The Ottawa Citizen, (Saturday,July 13th, 1996) at A1-A2.131specific subject matter of the dispute than do judges. They also have greater flexibility in decision-makingsince they are not bound by the principle of stare decisis in rendering a decision. In fact, arbitrators arenot even required to give reasons to support their awards.”5522. Types of ArbitrationArbitration can be classified as either interest arbitration or rights arbitration.553 Interest arbitrationinvolves disputes about the terms and conditions of a contract or another relationship between the parties.Rights arbitration is concerned with the violation or interpretation of an existing contract or relationship.3. Mediation-ArbitrationThe process of “med-arb” is a two-step process. Typically, the first step involves mediation of the issuesand if the parties fail to reach a settlement on all the issues, the second step uses formal arbitration,usually by the same neutral, to render a decision on the remaining issues. The final result is a bindingdecision which includes the agreements arrived at during the first step - mediation - together with thedecisions resulting from the second step - arbitration. This process is seen as giving the parties the extraincentive to settle because they know that the mediator will become the arbitrator if settlement is notreached.554There are a number of variations on the med-arb process. For instance, parties can opt to start arbitrationproceedings and allow for mediation at some point during the arbitration. It is also possible to mediatesome issue and arbitrate others. Parties can choose to mediate, then arbitrate some unresolved issues, thenreturn to mediation. Further, some may decide to mediate, if unsuccessful ask for an “advisory opinion” bythe mediator which is binding as an award unless either party vetoes the opinion within a limited periodof time. Finally, another variation is mediation, if unsuccessful, followed by a final offer by each side,552 Nolan-Haley, supra note 167, at 125.Ibid, at 130.Roth, Wulif and Cooper, supra note 309, at 37:1.132coupled with limited argument, following which the mediator turned arbitrator who must choose one orother of the offers.555B. Arbitration in the Context of Aboriginal Land Claims1. Advantages and DisadvantagesThe arbitration process could give settlements on land claims some degree of finality. Arbitration alsooffers some flexibility of process and procedure and allows for the parties to decide on the degree offormality which will govern the arbitration. However, the major shortcoming of arbitration is that it is anadversarial process which creates a win-or-lose situation where the winner takes all. The arbitrationprocess can also disempower disputants by taking control of outcome out of the parties’ hands and bynecessitating reliance on professional representatives. Many also contend that arbitration suffers many ofthe disadvantages of litigation, such as costs, delays, and lack of suitable remedies.2. Experiences with Arbitration in CanadaArbitration has not been used to resolve many land claims in Canada to date. In fact, as noted by theIndian Commission of Ontario, governments tend to refuse to participate in binding and even non-bindingarbitration to resolve difficult questions in relation to a land claim.556However, recourse to the process of arbitration has been included in settlement agreements. For instance,in the Umbrella Final Agreement between the federal government, the Yukon government and theCouncil for Yukon Indians, a provision is made for disputes arising from the Agreement to be submittedto mediation. In the event that mediation fails to resolve the dispute, the matter is referred to arbitration.555D.C, Elliot, “MedlArb: Fraught with Danger or Ripe with Opportunity!” (1995) 34 Alberta LawReview, No.1, 163 at 164.ICO (1994), supra note 152, at 42. NOTE: The ICO reports that in the early 1900’s, a procedure ofinternational arbitration was used by the Cayuga Indians living at Six Nations to recover treaty annuitiesfrom the U.S. govermnent which had remained unpaid after the war in 1812. The claim was lodged in1882 and an arbitration panel was set up in 1910. It was settled in 1926 when Canada took control of a$100, 000 trust fund on behalf of the First Nation, intended to provide the $5, 000 annuity they had beenawarded. ICO (1990), supra note 39, at 7.133The decision of the arbitrator is final and binding on the parties and is not subject to appeal or to judicialreview unless it is alleged that the arbitrator failed to observe a principle of natural justice or otherwiseacted beyond or refused to exercise jurisdiction.557Despite the limited use of arbitration in Canada to resolve Aboriginal land claims, some commentatorshave discussed the benefits of using the arbitration process to determine various aspects of land claims.For instance, Professor Bradford Morse has analyzed the alternative dispute resolution processes of labourmanagement and has applied his findings to the Aboriginal claims context.558 He concludes thatarbitration would be an appropriate process to resolve Aboriginal claims in the following circumstances:(1) incorporating systems of grievance arbitration to determine the validity of a claim, or to interpret,administer, or implement terms of settlement that are incapable of negotiation due to conflict; (2) interestarbitration for compensation decisions; and (3) combined mediation-arbitration where an independentperson is engaged first as a mediator to assist the parties to come to their own agreement, failing whichthe mediator becomes an arbitrator and makes a determinative finding binding upon the parties.Moreover, Professor Morse suggests that arbitration should be used only to determine specific issues in theoverall claim.559 In fact, the arbitration literature indicates that this process works best when a singleissue can be isolated and reasoned argument directed exclusively to it.56°There are however important differences between arbitration in the context of labour disputes and in thecontext of Aboriginal land claims. It could be argued that labour organizations generally have morebargaining and political power that Aboriginal groups since they have the force of threatening strikes andlock-outs. However, this distinction might not be so significant since First Nations can gain bargainingYukon Umbrella FinalAgreement between the Government ofCanada, The Council for Yukon Indiansand the Government of Yukon, May 30, 1992, at 275-277.558 B.W. Morse, “Labour Relations Dispute Resolution Mechanisms and Indian Land Claims” in B.W.Morse ed., Indian Land Claims in Canada (Wallaceburg: Association of Iroquois and Allied Indians,Grand Council Treaty #3, and Union of Ontario Indians, Walpole Island Research Centre, 1981) at 293.5591bid, at 363-364; McCallum, supra note 13, at 62-63.560 S.B. Goldberg, F.E.A. Sander & N.H. Roger, Dispute Resolution, Negotiation, Mediation, and OtherProcesses, 2d ed. (Toronto: Little, Brown & Co., 1992) at 200.134power by threatening to resort to political action or by referring a claim to the courts. I would thereforesubmit that the most significant difference between labour disputes and land claims is that labour disputenegotiations are not final in the same sense as treaty negotiations because renegotiation of certain matterssubsequent to labour agreement is possible where renegotiation might be almost impossible after a treatyhas been signed considering the government’s goal to achieve finality and certainty.56’Part UI Appropriateness of Mediation and ArbitrationA. The Med-Arb ApproachThere is a role for arbitration and mediation to play in the overall process of resolving Aboriginal landclaims. I would submit that the process of med-arb would be appropriate to deal with Aboriginal landclaims. A combination of approaches, in which neutral third-parties would be oriented primarily towardsmediation, but would have powers of adjudication in reserve through arbitration to put pressure on theparties to settle, could be used to resolve these disputes. The med-arb process would bring the followingbenefits in the resolution of land claims: (1) the mediation component would offer a chance to the partiesto resolve the land dispute while retaining control of the decision; (2) if the parties fail to resolve thedispute through mediation, the arbitration component would provide a clear end point, usually within areasonably acceptable time frame, within a process than can be designed by the parties in dispute, andwith a decision maker of the disputants’ choice; (3) the time spent in mediation serves as a means ofgiving the mediator enough information for a decision to be made, so time is not “wasted” in a subsequentarbitration hearing; (4) the process is relatively informal and can be designed to suit the specific needs ofthe parties, the result comparatively speedy, and the costs controllable.562 The quality of med-arbsettlements is seen as the primary advantage of this approach “either because it is entirely or partiallyresolved through the mediation part of the process, or because the award is more likely to be in line withthe needs of the parties as a result of the enhanced knowledge that the mediator/arbitrator has byparticipating in the mediation process.”563561 Morse, supra note 558, at 348-349; McCallum, supra note 13, at 63.562DC Elliot, supra note 555, at 164-165.5631bid, at 171.135B. Approach and ProceduresThe mediator should be encouraged to focus on the transformative dimension of mediation by providinggreater empowerment of parties in restoring their sense of their own value and strength and their owncapacity to handle life’s problems. This effect would be greatly beneficial for First Nations. The focus onthe goal of recognition would also contribute in helping the parties to understand each other’s perspective.Gordon Sloan has identified four elements which must be liberally recognized between First Nations andgovernments: (1) the parties must recognize each other’s histories which also include a validation of eachother’s traditions; (2) each party must recognize fault; (3) strengths should be lavishly recognized bynoting and encouraging each other’s cultural gifts and accomplishments in order to craft joint solutions bysharing the power of their strengths; (4) the parties should recognize the depth of the challenges ofintercultural negotiation based in value differences and the transitions which each party has to make toreframe its concept of the other.564 Some of these elements might be difficult to recognize sincepoliticians and government generally reject their own traditions of treatment of First Nations and refuse toadmit any fault since injustices occurred during colonization.The parties should however try to negotiate with each other as people and cultures, not as stereotypes. Todo so, Sloan suggests to “check out preconceptions about each other and allow themselves to experiencethe difference between the other they imagined and the other they are negotiating with.”565 MichelleLeBaron Duryea suggests that one way to address deep cultural differences is through the incorporation ofvisual and experiential rituals into conflict resolution process. In the context of native culture, sherecommends the incorporation into a process of the sweetgrass ceremony or drumming, or theincorporation of the symbolism of the medicine wheel into the mediation process.566 However, I wouldsubmit that any attempt to incorporate cultural elements into the dispute resolution process should be564 G.B. Sloan, Reconciliatory Negotiation (Materials prepared for Making Peace and Sharing Power,Pre-Conference Workshop - Using Third Party Neutrals) (Victoria, B.C.: University of Victoria, April 30,1996) at 8.5651bid, at 9.566 LeBaron Duryea, supra note 14, at 43.136carefully weighted to avoid stereotyping Aboriginal culture as purely “traditional” culture. Thus, I wouldsuggest that the bicultural elements of the process should be chosen by each First Nation involved in adispute and the process should be flexible enough to accommodate for any “cultural” addition to thedispute resolution mechanism at any time.Thus, the med-arb process represents a balance between two approaches which both bring importantbenefits in the Aboriginal land claims dispute. As stated by Colvin, “[a]rbitration could secure theparties’ confidence in the intervenant and ensure that the adjudicative process is adapted to the distinctivefeatures of Indian claims. Mediation, on the other hand, would give more scope to opportunities for anegotiated settlement.”567 However, Colvin conceded that neither of these processes could be expected tohave a widespread success if jurisdiction depends wholly on the consent of the parties. He thereforesuggests that while it would be preferable for the parties to agree to the choice of a particular intervenant,it would be better if this process could be initiated at the behest of the Aboriginal claimants alone.To acconmiodate the bicultural approach which would be more acceptable to First Nations, it would bepossible to use a team of mediator-arbitrator, comprised of Aboriginal and non-Aboriginal neutrals. Infact, as noted by Michelle LeBaron Duryea, “a single intervenor may not meet parties’ needs whereconflicts are complex and cultural factors play prominently, or when a conflict involves parties fromdifferent cultural backgrounds.”568 Co-mediators have been used in the past in cases of unusualcomplexity, in cases where a specific expertise is needed for resolving the dispute, and in cases involvinga multiplicity of parties.569 In the context of Aboriginal land claims, the cases are generally very complex,they involve at least three parties (which could be more if third-party groups were represented at thetable), and all claims require a deep understanding of the issues from both an Aboriginal and non-Aboriginal perspective, to work efficiently with the parties. Moreover, the team of mediators-arbitrators567 Colvin, supra note 54, at 27.568 Lund & al., supra note 1, at 6.569 A.P. Ordover, G.M. Flores and A. Doneff, Alternatives to Litigation: Mediation, Arbitration, and theArt ofDispute Resolution (Notre Dame, Indianna: National Institute for Trial Advocacy, 1993) at 93.137should be appointed by agreement of the parties to give them direct involvement in choosing theintervenants and determining the procedures by which they would operate. These neutrals should bechosen for (1) their knowledge about Aboriginal and non-Aboriginal society (including history, folklore,traditions, customs, values); (2) their communication skills, both verbal and non-verbal; (3) their technicalskills; and finally (4) their knowledge and awareness of their own biases and values and the importance ofrespecting differences.570ConclusionThis chapter has examined two dispute resolution processes which have not been used in the context ofAboriginal land claims as often as other mechanisms such as litigation and negotiation. The mediationprocess is generally viewed as more expeditious, inexpensive, and procedurally simple than adversarialdispute resolution mechanisms. More importantly, it has been suggested in recent literature regarding thepotential of mediation that this process provides a unique opportunity for achieving empowerment andrecognition. In the context of Aboriginal land claims, the transformative potential of mediation throughempowennent could be beneficial to First Nations to restore their own value and strength. Therecognition and understanding of the other party’s perspective would allow for the development of abicultural approach in the resolution of Aboriginal land claims.The arbitration process could also provide some benefits in resolving Aboriginal land claims as it wouldgive settlements some degree of finality and allow for more flexibility in the procedures that the courts.Therefore, considering the advantages of both the process of mediation and arbitration, a combination ofthese two approaches, in which a team of Aboriginal and non-Aboriginal neutral third-parties mediate thedispute (with powers of adjudication in reserve to put pressure on the parties to settle), could be successfulin resolving Aboriginal land claims in Canada.570 LeBaron Duryea, supra note 14, at 17.138CHAPTER FINE EXPERIENCE WITH THREE INSTITUTIONS: A COMPARISONAboriginal people in Canada are not alone in their struggle to define and shape the society they live in.Over the past twenty-five years, modern treaties and a variety of other land claims settlements have takenplace in several countries and have taken several forms. Australia and New Zealand offer both historicaland contemporary experiences which can inform Canadian endeavours to frame settlement mechanismsand agreements. Although there are fundamental differences in the history and society of Australia andNew Zealand, Canada can still take advantage of lessons learned from past experience with different typesof land claim mechanisms used in these two countries to improve its existing institutions dealing withAboriginal claims. Canada has also seen the development of specialized institutions to deal with landclaims. One of them is the British Columbia Treaty Commission established in 1992 to monitor thenegotiations of comprehensive claims in British Columbia. This Commission will be analyzed with themodels in Australia and New Zealand.The purpose of this Chapter is to describe the make-up, mandates and processes used by each of thesethree bodies to find agreement between First Nations and governments. This Chapter is divided into threeparts. In Part I, I will examine the Australian National Native Title Tribunal created to resolveAboriginal land claims. This Tribunal was created under the Native Title Act, 1993 to give effect to theprinciples of the Mabo decision. Part II will explore the Waitangi Tribunal and its innovative proceduresin hearing Maori claims. The Waitangi Tribunal was established in 1975 to hear, investigate and makerecommendations concerning grievances from the Maori people about the many ways in which they feltthe Treaty of Waitangi was not being honoured by the New Zealand government. This most originalTribunal is made up half from representatives of Maori tribes and the other half from representatives ofthe dominant Anglo-Saxon culture. As part of this discussion, I will also examine whether the WaitangiTribunal can be seen as a vehicle of legal pluralism in a primarily monocultural legal system. Finally,Part III will examine the approach of the B.C. Treaty Commission. The B.C. Treaty Commission is aFirst Nations, provincial, and federal government initiative undertaken after the province of B.C.recognized continuing Aboriginal land rights in 1990. This Commission is comprised of both Aboriginal139and non-Aboriginal commissioners and supervises the negotiations between governments and FirstNations.Part I The Australian ExperienceA. Background1. The Concept of Native TitleAustralia did not sign any treaties with its original indigenous inhabitants.57’For two hundred years,courts in Australia have denied the recognition of legal title to the land to the indigenous people ofAustralia. However, this changed in 1992 when six of the seven members of the High Court of Australiadecided in Mabo v. The State of Queensland that “...the common law of this country recognises a form ofnative title which, in cases where it has not been extinguished, reflects the entitlement of the indigenousinhabitants, in accordance with their laws or customs, to their traditional lands.”572 In that decision, theHigh Court rejected the view that Australia was terra nullius at the time of European colonization andrecognized a form of native title to which the Crown was subject. Justice Brennan, with whom Mason CJand McHugh J agTeed, described the doctrine of terra nullius as applied in Australia as having “a falsebasis in fact and as now being unacceptable in our society.”573 Justice Brennan also said that the Courtshould not allow the common law to be or be seen to be “frozen in an age of racial discrimination” sincethis would perpetuate injustice.574 The High Court ruled that native title may be extinguished bylegislation, by the alienation of land by the Crown or by the appropriation of the land by the Crown in amanner inconsistent with the continuation of native title.575 Three judges in Mabo also mentionedspecifically the requirement to pay compensation for extinguishment of native title.576 Following thisdecision, Australia had to re-think its entire understanding of the rights of Aboriginal peoples, and new571 Durocher, supra note 20, at 46.572 (1992), 107 A.L.R. 1; (1992), 175 C.L.R. 1 at 15 (Mason CJ and McHugh J).I. Wilson, “The Waitangi Tribunal: Cross-Cultural Public Issue Dispute Resolution in New Zealand”(1992) 3 Australian Dispute Resolution Journal, No.4, 240 at 240.‘‘ Quoted in Wilson, ibid, at 240.P. Butt, “The Native Title Act: A Property Perspective” (1994) 68 The Australian Law Journal 285, at286.576 Wilson, supra note 573, at 240.140policies of acceptance and engagement became necessaly. As stated by Peter Jull, “Mabo was a reminderthat easy assumptions of hegemony and cultural ascendancy are misplaced.”5772. Recognition of Aboriginal Title before MaboIn Australia, much of the constitutional jurisdiction over land remains with the state governments and, asa result, there has never been a uniform national process for the recognition of Aboriginal title. In fact,until the Mabo decision in 1992, the recognition of Aboriginal title and the resolution of land claims hasbeen mostly determined by statutes at the state level.578 Australian Federal and State governments startedin 1976 to pass legislation acknowledging the legitimacy of Aboriginal land claims and providingprocesses for recognizing Aboriginal entitlement.579The first legislation was the Aboriginal Land Rights (NT) Act, 1976 passed by the CommonwealthParliament in relation to Australia’s Northern Territory in response to the proposals of the WoodwardReport for the legislative recognition of Aboriginal title.58° The Act automatically gave to the Aboriginalpeople of the Northern Territory lands that had already been reserved for them. The Act also allowednatives to claim and hold vacant Crown land to which they could demonstrate a connection of traditionalownership.58’ A land claims process was established with an Aboriginal Land Commissioner - the Judgeof the Supreme Court of the Northern Territory - having the power to hear traditional land claims and torecommend the granting of title with respect to unalienated Crown land.582 The Aboriginal Land Rights“ P. Jull, “An Aboriginal Policy for the Millennium: The Three Social Justice Reports” (1996) 1 AILR 1,at2.578 C. Wickliffe, “Issues for Indigenous Claims Settlement Policies Arising in Other Jurisdictions” (1995)25 V(JWLR, No.2, 205 at 207.M. Jackson, A New Covenant Chain: An Alternative Model to Extinguishment for Land ClaimsAgreements (A Report prepared for the Royal Commission on Aboriginal Peoples) (September 1994) at130; Durocher, supra note 20, at 46.580 Aboriginal Land Rights (Northern Territory) Act, 1976. No.101 (Cth); Aboriginal Land RightsCommission (Woodward Commission), First Report (July, 1973) and Second Report (April, 1974)(Canberra, Australia: Australian Government Publishing Service; Colvin, supra note 54, at 23; Sanders(1992), supra note 158, at 270.581 Durocher, supra note 20, at 46; Sanders (1992), supra note 158, at 270.582 Colvin, supra note 54, at 24; Durocher, supra note 20, at 46-47; Sanders (1992), supra note 158, at270.141(NT) Act did not specify any detail as to the procedure to be followed in conducting hearings, howeversome directions were given to the effect that hearings should follow the model of adversary adjudicationalthough with less formality and a liberal policy respecting the admission of evidence.583 TheConunissioner therefore had the task of trying to balance common law principles of natural justice andcomplete disclosure of evidence against sensitivity to Aboriginal customs.584 The Act stated that thereports of the Aboriginal Land Commissioner would not be binding, but rather simply recommendationsto the Federal Minister of Aboriginal Affairs who would make the final decision as to whether there willbe a grant of the land.585 In January 1996, a Report on the Social and Economic Impacts of AboriginalLand Claim Settlements prepared in Canada revealed that Australia’s past performance of land claimswith the Aboriginal Land Rights (NT) Act, 1976, has not, from a resource development perspective,provided a positive example of settlement.586The land rights legislation for the Northern Territory became a precedent and other land rightslegislations were passed by individual State governments.587 For instance the Pitjantjatjara Land RightsAct, 1981 of South Australia was the result of negotiations between tribe and state government over aperiod of years.588 Another example is the Torres Straight Island LandAct, 1991, which enables claims tobe made to a Land Tribunal on the ground of “customary affiliation”.589 This Act empowers a583 Colvin, supra note 54, at 24. See Aboriginal Land Rights (Northern Territory) Act, 1976. PracticeDirections (1977). NOTE: Direction 18 states in part: “The hearing of an application will be conductedalong the lines of conventional court proceedings although with less formality.” Direction 22 states inpart: “There will be no strict adherence to the ordinary rules of evidence.” For instance, Aboriginalwomen generally do not want any male other that the Commissioner to be present when they are givingevidence of a secret nature. As a result, males are usually excluded under these circumstances.584 P. McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Toronto: OxfordUniversity Press, 1991) at 307.585 Ibid. See also Durocher, supra note 20, at 46-47.586 ARA Consulting Group, Social and Economic Impacts ofAboriginal Land Claim Settlements: A CaseStudy Analysis cFinal Report prepared for Ministry of Aboriginal Affairs of B.C. and Federal TreatyNegotiation Office, December 1995) at 10.587 NOTE: Other examples are: the Maralinga Tjarta Land Rights Act, 1984 and the Aboriginal LandRights Act, 1984.588Fiafljatjara LandRightsAct, 1981 No.20 (S.A.); McHugh, supra note 584, at 308.589 Torres Straight Island LandAct, 1991; Jackson, supra note 579, at 132.Ú142Commission to negotiate and conclude agreements with the government and to grant property interests toAboriginal and Torres Strait Islander corporations.59°B. The Native Title Act, 1993As mentioned earlier, the Mabo decision provided fresh impetus for a coordinated national approach tothe settlement of Aboriginal land claims.591 In June 1993, to address the implications ofMabo, theCommonwealth government issued a discussion paper and then made public a detailed outline of aproposed legislation which was designed to “resolve the uncertainties created by Mabo while ensuring thatNative title is treated with fairness and justice.”592This discussion paper was shortly followed by the adoption of the Native Title Act, 1993 which providedfor the recognition and protection of native title as recognized by the common law of Australia.593 TheAct also established a system to “validate” past Crown acts that may have rendered existing titles to landinvalid. This validation has the consequence that native title is completely or partially extinguisheddepending on the effect of the past act and the extent of any inconsistency with the continued existence ofnative title.594 It has been suggested that in practice, this means that the only real land and naturalresources available to settle claims are unoccupied and unused Crown land.595 Once these acts have beenvalidated, claimants are entitled to a form of compensation similar to that of an ordinary title holder.596The Act further established a regime for the protection of native title rights in future dealings affecting590 McHugh, supra note 584, at 309.591 Wickliffe, supra note 578, at 207.592 Statement by the Prime Minister Keating, quoted in Jackson, supra note 579, at 137. NOTE: Otherinitiatives of the government in response to the Mabo decision were (1) to establish a fund for open-market purchase of land for indigenous Australians who are not able to claim native title (the Land Fundand Indigenous Land Corporation) and (2) to seek proposals for a “social justice” package from ATSIC,the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social JusticeCommissioner.Received Royal Assent on December 24, 1993 and its operative provisions commenced on January 1,1994.Wickliffe, supra note 578, at 207-208.ibid.596 Ibid143native title land and waters. For certain future acts, relating among other things to mining proposals, theAct recognized a right to negotiate for native title holders and claimants.597 The regime under the NativeTitle Act, 1993 also recommended, but did not require, the enactment of complementary State andTerritory legislation. 598More importantly for the purpose of this thesis, the Native Title Act, 1993 established the National NativeTitle Tribunal. The Tribunal’s role is to screen and mediate applications for determination of native titleor for compensation and to inquire whether an agreed determination is both within its powers andappropriate. The Tribunal is also involved as an arbitral body in the right to negotiate process relating tothe grant of mining tenements (future acts) and compulsory acquisition of native title land.599C. The National Native Title Tribunal1. FunctionsThe principal functions of the Tribunal relate to applications, inquiries and determinations. There is alsoan ancillary research function.60°More than 230 claims have been filed with the Tribunal as of May1996.6011.1 ApplicationsThere are different types of applications that can be made to the Tribunal. All applications are initiallymade to the Native Title Registrar. An application can be made by the person(s) who claim the nativetitle, the Commonwealth Minister, or by the Minister of a State or Territory, where the whole area isButt, supra note 575, at 291.598 Ibid at 285. NOTE: The Native Title Act does not affect existing Commonwealth land rightslegislation. For example, the rights and interests of persons under the Aboriginal Land Rights (NorthernTerritory) Act 1976 are left untouched.Justice R.S. French, “The National Native Title Tribunal - Early Directions” (1994) Australian DisputeResolution Journal, 164 at 164 (Summary). Durocher, supra note 20, at 47.600 Section 108 of the Act. See French, supra note 599, at 168.601 Statement of the Honourable Frederick Chaney of the National Native Title Tribunal at the ConferenceMaking Peace and Sharing Power - A National Gathering on Aboriginal Peoples & Dispute Resolution,Victoria: April 30-May 3, 1996).144within the State or Territory’s jurisdiction. An application can also be made by any person holding an“interest” in the whole of the area over which the determination is sought. The term “interest” is widelydefined, including any “right ... power or privilege” over land.602 The Registrar has the power to rejectapplications on certain grounds, including that the application is frivolous or vexatious.603 However, theRegistrar’s rejection can be overridden by a presidential member of the Tribunal. If the presidentialmember confirms the Registrar’s rejection, a right of appeal lies to the Federal Court on a question of factor law.604 The Registrar must give notice of accepted applications to all persons whose “interests” may beaffected by a determination who can then oppose the application.605Where the application is not opposed or where it is opposed but the parties have reached an agreement,the Tribunal has the role to determine whether a native title exists and what rights comprise it. 606 Wherethe application is opposed and the parties have not reached an agreement, a mediation conference must beheld to try to resolve the matter.607 If at this conference the parties come to an agreement, then theTribunal can make a determination about the existence or otherwise of native title consistent with theterms of the agreement.608 In any cases where the Tribunal could have made a determination but fails todo so, the Registrar must refer the matter to the Federal Court for decision.609Determinations by the Tribunal are lodged for registration with the Federal Court and have the effect of aFederal Court order.61° However, the Tribunal’s determinations of native title are not binding and602 French, supra note 599, at 168-169. NOTE: For instance, a mining company with a licence toprospect over an area of land could apply for a determination whether native title exists over the land. SeeButt, supra note 575, at 286.603 Section 63 of the Act.604 Section 169(2) of the Act.605 NOTE: This includes a person with a proprietary interest in land, registered in a Torrens or otherregister. It is unclear whether the definition of interest in s. 253 applies here to limit “interests” tointerests over land, or whether “interests” in a wider sense are included, such as rights to royalties, orother forms of financial interest. Butt, supra note 575, at 286.606 Sections 70 and 71 of the Act.607 Section 72 of the Act.608 Section 73 of the Act.609 Section 74 of the Act. See Butt, supra note 575, at 287.610 Section 167 of the Act.145conclusive and parties to the Tribunal proceedings, or any person whose interests are affected by thedetermination, can ask the Federal Court to review the determination.6111.2 InquiriesIn addition to receiving and dealing with applications, the Tribunal has functions in relation to thecarrying out of inquiries and the making of determinations. There is a requirement to hold an inquiry intoan application for native title determinations and compensation where such application is unopposed or anagreement is reached either at the end of the notice period or after a mediation conference.612 Thepurpose of the inquiry is to ensure that “conditions laid down by the Act for the making of the proposeddetermination are satisfied, that there is a basis for it and that it is fair and reasonable in thecircumstances. It is not intended that such inquiries should be by way of an exhaustive investigation ofthe existence of native title or other issues arising in the application.”613Applications based on the right to negotiate must also be the subject of an inquiry.614 Further, theCommonwealth Minister can direct the Tribunal to hold an inquiry into a particular matter or issuerelating to native title.615 A conference may be directed by the president to help resolve any matterrelating to an inquiry.616 After holding an inquiry into an unopposed or agreed application, the Tribunalmust make a determination about the matters covered by the inquiry.617 After holding an inquiry into aspecial matter, the Tribunal must make a report about the matters covered by the inquiry.618 The scope ofdeterminations possible after an inquiry is not limited to determinations of native title or compensation forwhich specific determinations are expressly provided in the Act.619 In conducting its inquiries, the611 Sections 164 and 167 (4) of the Act. See Butt, supra note 575, at 287.612 Section 139(a) of the Act. French, supra note 599, at 170 and 176.613 French, supra note 599, at 176.614 Section 139(b) of the Act. French, supra note 599, at 170.615 Section 137, 13 9(c) of the Act.616 Section 150 of the Act.617 Section 160 of the Act.618 Section 163 of the Act.619 French, supra note 599, at 170.146Tribunal is not bound by technicalities, legal forms or rules of evidence and it must take into account thecultural and customary concerns of Aboriginal people and Torres Strait Islanders.62°1.3 NegotiationThe Act gives registered native title holders and registered native title claimants, as well as some others,the right to negotiate before the government performs certain acts over native title land.621 Essentially,the right to negotiate arises with respect to proposals for mining activity and proposals to acquire nativetitle rights and interests in order to confer rights or interests on others.622The government must give notice of its intention to do the act to the public and to any registered nativetitle holders or claimants.623 If no one objects within two months of the notice, the government canproceed and the act will be valid. However, if one or more native title party(ies) appears within the twomonth period, the government must then give them the right to make submissions, and must negotiate ingood faith with them with a view to obtain the native title parties’ agreement to the proposed act.624Conditions agreed upon by the parties will have the force of a contract. 625The National Native Title Tribunal must make its mediation services available to the parties to thenegotiation if so requested.626 If the parties fail to achieve agreement within the specified period,627 anyparty involved in the negotiation may apply to the Tribunal for a determination of whether the proposal620 Section 109 (2) (3) of the Act.621 Sections 26, 28, 31 of the Act. See Butt, supra note 575, at 292-293. NOTE: Section 26(3) of the Actcreates some exceptions to the right to negotiate. On June 7, 1995, the President of the National NativeTitle Tribunal, the Honourable Justice French, issued the National Native Title Right to NegotiateProcedures under section 123 of the Native Tittle Act. Revised procedures were issued on September 8,1995.622 Section 26 of the Act. See Butt, supra note 575, at 292; French, supra note 599, at 170.623 Section 29 of the Act.624 Section 31 of the Act. Butt, supra note 575, at 292; French, supra note 599, at 170. NOTE: Thenegotiation must include the possibility of including a condition entitling native title parties to paymentsbased on future profits or income derived from the land - Section 33 of the Act.625 Section 41 of the Act. Butt, supra note 575, at 292.626 Section 31(2) of the Act. Butt, supra note 575, at 292. French, supra note 599, at 170.627 Section 35 of the Act.147should proceed and, if so, under what conditions.628 Conditions imposed by the Tribunal have the force ofa contract between the parties and there is no right of appeal against the imposition of conditions by theTribunal. However, a right of appeal lies to the Federal Court against the Tribunal’s determination on aquestion of law.629 In making its decision, the Tribunal must consider a number of factors, including theimpact of the proposed act on native title, the way of life, culture and traditions of the native title parties,freedom of access to the land for ceremonial purposes, and the natural environment of the land or watersconcerned,630 It must also take into account the wishes of the native title parties regarding themanagement and use of the land or waters.63’ The relevant Commonwealth Minister can overrule theTribunal’s decision within two months if he or she considers the overruling to be in the national interest,or in the interest of the State or Territory.632 Also, if there are State/Territory bodies equivalent to theNational Native Title Tribunal, the relevant State/Territory Minister can overrule a decision of that localbody if that Minister considers the overruling to be in the interest of the State/Territory. The Act does notdefine the national or State/Territory “interest” and there is no appeal against the Minister’s decision.6331.4 Federal CourtAll land claims must be first directed to the National Native Title Tribunal. If no agreement is reachedthrough the procedures of the Tribunal, the claim can then be referred to the Federal Court. Once amatter is referred to the Federal Court, it “...must pursue the objective of providing a mechanism ofdetermination that is fair, just, economical, informal and prompt”.634 Accordingly, under the Native TitleAct, 1993 the Federal Court is not bound by technicalities, legal forms, or rules of evidence and it candecide to request the service of assessors or direct the holding of public conferences to help resolve mattersthat it considers relevant. 635628 French, supra note 599, at 170.629 Section 169 (1). See Butt, supra note 575, at 292.630 Section 39 of the Act.631 Butt, supra note 575, at 292.632 Section 42(2) of the Act.633 Butt, supra note 575, at 292.634 Section 82 of the Act.635 Sections 83 and 88 of the Act. See Butt, supra note 575, at 287.1482. JurisdictionThe Native Title Act, 1993 encourages States and Territories to enact complementary legislation bymaking provisions for a “recognised State/Territory body”. When recognised this body can play parallelroles to those of the National Native Title Tribunal and the Federal Court. The purpose is to allow Statesand Territories to deal with native title matters themselves, but only where procedures and functions of theState/Territory bodies harmonize with those of the Federal bodies in order to ensure “a nationallyconsistent approach to the recognition and protection of native title”.636 The main incentive for States andTerritories to designate bodies of their own is that such State/Territory bodies would have the sole right -as against the National Native Title Tribunal - to make ‘arbitral’ determination relating to future actsconcerning land wholly within the boundaries of the State or Territory. By contrast, natives seeking adetermination of native title andJor compensation could choose between the relevant State/Territory bodyand the National Native Title Tribunal.637 Another possible advantage for a State or Territory to create itsown body in relation to future acts is that the ultimate ministerial “override” power for its determinationswill belong to the State or Territory Minister rather that to the Commonwealth Minister.638The Commonwealth government has made a financial offer to the States and Territories which decide toenact complementary legislation. The government has offered to contribute 75% of the cost ofcompensating for the effect on native title of validations of past acts and 50% of the costs of establishingand maintaining State/Territory native title bodies until the end of the decade. By May 1995, all theStates and Territories except the Northern Territory had accepted the financial assistance offer.6393. Composition636 Section 25 1(2) of the Act. Butt, supra note 575, at 293.637-- “Native Title: State and Territory Legislation Summary” (1996) 1 AILR 53, at 53.6381bid, at 54.639 Ibid.149The membership of the National Native Title Tribunal comprises presidential and non-presidentialmembers. Presidential members are the president and the deputy presidents of the Tribunal. They arechosen among serving judges of the Federal Court or among any former judges of the High Court, FederalCourts or Supreme Courts of a State or Territory. The non-presidential members are persons other than ajudge or former judge who have special knowledge in relation to either Aboriginal and Torres StraitIslander societies, land management, dispute resolution, or any other matters which have substantialrelevance to the duties of such a member.64°The government unilaterally appoints presidential and non-presidential members of the National Native Title Tribunal. As to the participation and representation ofAboriginal peoples, the legislation does not reserve any position to them. The commentary to thelegislation only states that “[tb the extent possible, Aboriginal and Torres Straight Islander persons willbe appointed as mediators/assessors. ••,,641 As of May 1996, there were two Aboriginal members who hadbeen appointed to the Tribunal.6424. ApproachThe most critical function of the Tribunal is its responsibility to assist parties in resolving disputedapplications. The President of the Tribunal, Justice French, noted that to be effective in this work, theTribunal needs the trust and respect of those involved in applications.643 The Tribunal must be seen asprofessional, independent and impartial in order to advance its functions in relation to mediation andconciliation of disputed applications. It is a fundamental principle of the Tribunal that each party betreated fairly with respect to its legal rights, interests and concerns. Successful mediation and conciliationnecessitate sensitivity to the interests and concerns of all participants. Justice French explains that[tihe cultural awareness necessary for the task of the tribunal’s members and officers extends toawareness of the concerns and interests of Aboriginal and Torres Strait Islander people, farmers,pastoralists, miners, governments, local authorities and other relevant interest groups. Thetechniques of mediation and negotiation impose a need for that awareness as a professionalresponsibility.644640 French, supra note 599, at 172.641 Mabo: Outline of Proposed Legislation on Native Title, at 25 quoted in Jackson, supra note 579, at141.642 Interview with the Honourable Frederick Chaney, National Native Title Tribunal, May 2, 1996.643 French, supra note 599, at 173.644 Ibid.150The Tribunal has indicated that its preferred approach in relation to mediation conference is the “interestbased negotiation”. In that context, interest-based negotiation involves the three following elements: (1)parties identifying their own and the other parties’ interests relevant to the application; (2) partiesthinking about a variety of options for the resolution of the application before deciding what to do; and (3)parties considering the options against some acceptable standard of fairness or reasonableness.645 Thepurpose of interest-based negotiation is to “...induce each party to focus on the dispute as a commonproblem to be solved rather than to focus on the other parties and their respective positions.”646 Allparties should be open to the possibility that a partial agreement may be achievable or an agreement whichgoes beyond the strict terms of a statutory determination. The mediation conference will therefore includea session in which parties explain their respective interests to each other, that is, what they each hope toachieve by an agreed resolution of the application. With the help of advisers, if required, they may putforward their various options as suggestions to be explored rather than as positions to be