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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 SEARCH FOR APPROPRIATE DISPUTE RESOLUTION MECHANISMS TO RESOLVE ABORIGINAL LAND CLAIMS: EMPOWERMENTAND RECOGNITION  by JOELLE MONTMINY LL.B., Université Lava!, 1992  A THESIS SUBMITTED iN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES  (Facu!ty of Law)  We accept this thesis as conforming to the required standard  THE UNWERSITY OF BRITISH COLUMBIA  August 1996 © Joë!!e Montminy, 1996  __________________________  In  presenting this thesis in  partial fulfilment of the  requirements for an advanced  degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department  or  by  his  or  her  representatives.  It  is  understood  that  copying  or  publication of this thesis for financial gain shall not be allowed without my written permission.  (Signature)  of________ The University of British Columbia Vancouver, Canada Date  (2)88)  /5 /  II  Abstract Different 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 to resolve land claims between governments and First Nations, Further, two regional institutions were created in Ontario and British Columbia to facilitate the resolution of these complex claims. Various processes have also been used 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 than twenty years. The purpose of this thesis is to analyze the appropriateness of the various dispute resolution processes which are, or could be, employed to resolve the land question in Canada. The search for dispute resolution mechanisms suitable to resolve land claims is undertaken in light of the two basic characteristics of the relationship of the parties to these disputes: the cultural differences, and the imbalance of power between the parties. 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 main assumptions, premises, values and beliefs held by the parties involved in Aboriginal disputes, and the dynamics of their relationship. The following three chapters discuss specific dispute resolution processes which have been employed to resolve the land question in Canada. At the end of each of these chapters, suggestions are made to improve these various processes. Chapter Two analyzes the advantages and disadvantages of litigation in the context of Aboriginal land cases. Chapter Three examines the process of negotiation, with a focus on the federal government’s policies on land claims. Chapter Four discusses the processes of mediation and arbitration, and considers the appropriateness of these mechanisms to resolve land claims in Canada. Chapter Five provides a comparative 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; and the British Columbia Treaty Commission. Finally, Chapter Six identifies the essential elements which must be present for dispute resolution mechanisms to be successful in the Aboriginal land claims context and integrates  111  these 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), the resolution of Aboriginal claims, and on Aboriginal law generally. Throughout this thesis, I have used 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 the theoretical underpinnings of various processes for cultural biases. The comparative method is helpful in analyzing different institutions that have been created in Australia, New Zealand and British Columbia to resolve Aboriginal claims. Finally, considering that the field of dispute resolution is informed by a wide variety of disciplines, the interdisciplinary approach is used to present different propositions concerning which dispute resolution mechanisms are the most appropriate to resolve Aboriginal land claims based on anthropological, historical, sociological and political variables. One of the difficulties in trying to find appropriate dispute resolution mechanisms to deal with Aboriginal land claims is to accommodate the diversity of the approximately 633 First Nations in Canada. Another difficulty relates to the fact that 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 and disadvantages for resolving the land question in Canada. I suggest that each mechanism has a role to play in the overall process of resolving Aboriginal land claims as long as it accommodates the cultural diversity and ensures that all concerned have a voice in designing the process(es) employed to resolve land disputes. This thesis also recommends the creation of an independent land claims body which would provide the benefits of third-party intervention 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 the parties in the process and outcome, and facilitate the production of a settlement which contributes to future harmonious relationships between Aboriginal and non-Aboriginal society. The most important element remains that discussions about possible changes to the existing processes should occur between governments in partnership with the First Nations of Canada, and in consultation with non-Aboriginal interests.  iv  TABLE OF CONTENTS Abstract  ii  Table of Contents  iv  INTRODUCTION  1  CHAPTER ONE  Part I  RELATIONSHIP BETWEEN ABORIGINAL AND EURO-CANADIAN SOCIETY  Historical Background  10  A.  The Early Period 1. The Royal Proclamation of 1763 2. Treaties 3. Confederation 4. First Nations Organization  10 10 11 13 15  B.  Post World War II 1. White Paper of 1969 2. Calder Decision in 1973 3. Land Claims Policies 4. Constitution Act,]982 5. Revision of Land Claims Policies 6. Oka Crisis in 1990 7. Revision of Land Claims Policies and Establishment of Land Claims Commissions  16 17 19 21 23 23 25  Aboriginal and Euro-Canadian Ideologies  27  Part U  26  A.  Western-Liberal Ideology  28  B.  Modern Relationship  29  Part III A.  B.  Dynamic between Parties to the Land Claims Disputes  30  Governments’ Dilemma 1. The Role of Ideology 2. Sensitive Political Issues 3. Public Opinion 4. Personalities of Policy-Makers 5. Political Priorities 6. Incentive 7. Complexity of Governments 7.1 Federal Department of Indian Affairs and Northern Development 7.2 Provincial and Territorial Governments  31 31 32 32 33 34 34 35  First Nations of Canada  39  Conclusion  35 38  40  V  CHAPTER TWO Part I  LITIGATION  Theories of Adjudication  44  A.  Definition  44  B.  Limitations of Adjudication 1. Polycentric Problems  44 44  2.  Relationship Between the Parties  44  Adjudication in the Context of Aboriginal Land Claims  46  Part II A.  B.  Limitations of Litigation 1. Cultural Framework of the Canadian Courts 1.1 Colonial Sovereignty 1.2 Judicial Ethnocentrism and Bias  47 47 47 49  2.  53 54 54 57 58 61 62 63  Procedural and Substantive Issues 2.1 Nature of the Claims 2.2 Jurisdiction, Procedure and Remedies 2.3 Aboriginal Participation 2.4 Burden of Proof and Evidence 2.5 Costs and Delays 2.6 Lack of Control and Compliance 2.7 Injunction  Benefits of Litigation 1. Strategic Advantages 1.1 Binding Precedents 1.2 Changes in Government’s Land Claims Policies 1.3 Impetus for Negotiation  65 65 65 66 66  2.  Public Sphere 2.1 Public Opinion 2.2 International Discourse  68 68 68  Appropriateness of Litigation  69  Part Ill A.  Cultural Relativism  69  B.  Combining Litigation and ADR Mechanisms  71  C.  Improving the Role of the Courts in the Context of Aboriginal Land Claims 1. Fundamental Legal Issues 2. Implementation  75 75 75  Conclusion  76  vi CHAPTER ifi Part I  NEGOTIATION Characteristics and Theories of Negotiation  79  A.  Theories of Negotiation 1. Definition 2. Models of Negotiation 2.1 Competitive Strategy 2.2 Cooperative Strategy 2.3 Integrative Strategy 3. The Choice of a Negotiation Strategy  79 79 79 80 81 82 83  B.  Application to Aboriginal Land Claims  84  Part II  Negotiation of Aboriginal Land Claims  86  A.  Structural Problems with Land Claims Negotiations 1. Symmetry of Power Between the Parties 2. Terminology 3. Land Claims Policies 4. Conflict of Interest 4.1 Acceptance of Claims 4.2 Funding Decisions 4.3 Lack of Appeal Mechanisms 5. Interim Measures Agreements 6. Timelines 7. Impasse  87 87 89 89 91 91 93 94 95 95 96  B.  Problems in Substantive Negotiations 1. Compromise 2. Premises of Negotiation 2.1 Certainty 2.2 Flexibility 3. Lack of Authority 4. Lack of Trust 5. Incentive to Negotiate  97 97 98 98 100 101 101 102  C.  Cultural Differences 1. Different Worldviews 1.1 Language 1.2 Decision-Making  104 104 106 107  Part  m  Strategies to Improve the Negotiation Process  109  A.  Lessons Learned from the Yukon Agreement 1. Background 2. Principles of the Process 3. Lessons Learned  109 110 111 112  B.  Strategies to Improve the Existing Process 1. Pre-Negotiation Strategies 1.1 Redressing the Power Imbalance 1.2 Land Claims Policies  112 113 113 114  vii  2.  3.  1.3 Conflict of Interest 1.4 BuildingTrust Procedural Issues 2.1 Flexibility 2,2 Interest Based Negotiation 2.3 Third-Party Interests Dispute Resolution Mechanisms to Break Impasses 2.4 2.5 Interim Measures Agreements 2.6 Implementation Cultural Understanding Developing a Language of Perspicuous Contrast -  Conclusion  118 119  CHAPTER FOUR Part I  115 115 115 115 116 116 117 117 118  MEDIATION AND ARBITRATION  Mediation  120  A.  Theories of Mediation 1. Definition 2. Types of Mediation 3. Transformative Potential 3.1 Empowerment 3.2 Recognition 4. Attitude of the Mediation Movement  120 120 121 121 122 122 123  B.  Mediation in the Context of Aboriginal Land Claims 1. Advantages and Disadvantages 2. Experiences with Mediation in Canada  124 124 126  Part II  Arbitration  130  A.  Theories of Arbitration 1. Definition 2. Types of Arbitration 3. Mediation-Arbitration  130 130 131 131  B.  Arbitration in the Context of Aboriginal Land Claims 1. Advantages and Disadvantages 2. Experiences with Arbitration in Canada  132 132 132  Part III  Appropriateness of Mediation and Arbitration  134  A.  The Med-Arb Approach  134  B.  Approach and Procedures  135  Conclusion  137  vifi CHAPTER FIVE Part I  EXPERIENCE WITH THREE INSTITUTIONS: A COMPARAISON  The Australian Experience  139  A.  Background 1. The Concept of Native Title 2. Recognition of Aboriginal Title before Mabo  139 139 140  B.  The Native TitleAct, 1993  142  C.  The National Native Title Tribunal 1. Functions 1.1 Applications 1.2 Inquiries 1.3 Negotiation Federal Court 1.4 2. Jurisdiction 3. Composition 4. Approach 5. Procedural Concerns  143 143 143 145 146 147 148 148 149 151  Part II  The Waitangi Tribunal of New Zealand  152  A.  Historical Background  152  B.  Establishment of the Waitangi Tribunal 1. Response to Pressure 2. General Reaction 3. Amendments in 1985 and 1988  154 154 154 155  C.  Overview of the Structure and Approach of the Waitangi Tribunal 1. Powers 2. Procedures 2.1 Initial Style 2.2 Recent Approach 3. Formality 4. Judicial Review 5. Social Role Reconciliation and Healing  157 157 158 159 161 161 162 162  D.  Credibility and Legitimacy: Different Views  164  E.  Current Difficulties  165  F.  Other Processes and Institutions 1. Direct Negotiation 2. Mediation 3. Court System 4. Interplay  166 166 167 168 168  G.  Legal Pluralism or Bicultural Approach 1. Legal Pluralism 1.1 Definition 1.2 Application to the Waitangi Tribunal  169 169 169 170  -  ix 2. Part m  Bicultural Approach  172  The British Columbia Treaty Commission  174  A.  Background  174  B.  Establishment of the B.C. Claims Task Force  175  C.  Report of the B.C. Claims Task Force 1. New Relationship 2. Scope of Negotiations 3. Characteristics of the Process 4. Establishment of the B.C. Treaty Commission  175 176 176 176 177  D.  British Columbia Treaty Commission 1. Pre-Negotiation Issues 1.1 Question of Accessibility 1.2 Organization of First Nations 1.3 Funding for Negotiations 1.4 Overlapping Territories 2. Stages of Negotiation 2.1 Readiness 2.2 Monitoring 3. Related Issues 3.1 Cost of Settlements 3.2 Non-Aboriginal Interests 3.3 Interim Measures Agreements 3.4 Public Education and Information  177 178 178 179 179 180 180 181 182 183 183 184 186 187  E.  Assessment 1. Procedural Problems 1.1 Openess i) Third-Party Representation ii) Public Education and Information 1.2 Funding 1.3 Management 1.4 Overlapping Territories 1.5 Interim Measures Agreements 2. Commitment of the Parties 3. Imbalance of Power 4. Cultural Differences  188 188 188 188 190 191 192 193 194 195 198 199  F.  Potential Impact of Treaties and Land Claims Settlements in British Columbia  200  Part IV  Comparison of the Models in Australia, New Zeland and British Columbia  201  A.  Differences Between the Three Institutions  201  B.  Lessons Learned from Australia, New Zealand and British Columbia 1. National Native Title Tribunal 2. Waitangi Tribunal  203 204 205  x 3.  British Columbia Treaty Commission  Conclusion  CHAPTER SIX  A.  B.  206 207  CONCLUSIONS AND RECOMMENDATIONS: A MODEL FOR CANADA  Essential Elements for Dispute Resolution Processes 1. Independence 2. Aboriginal Participation in the Development of Land Claims Policies 3. Jointly Created Institution 4. Bicultural Approach 5. Third-Party Representation  210 210  Creation of an Independent Land Claims Body 1. Structure 2. Political Reality  214 215 221  210 210 211 213  Conclusion  224  Bibliography  228  (  1  In the final analysis it must be realized that the process ofIndian Claims settlement involves not just the resolution of a simple contracted dispute, but rather the very lives and being ofthe people involved, Desire for settlement does not only concern the righting ofpast wrongs but as well the establishment ofa reasonable basis for the future ofa people... (Barber, 1973)  INTRODUCTION  Different dispute resolution mechanisms are available to settle disputes. Litigation is increasingly being seen 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 over crowded courts and questions of the appropriateness of the judicial forum for some disputes. The three basic alternative dispute resolution (ADR) mechanisms are negotiation, mediation, and arbitration. The ADR movement has also seen the development of hybrid dispute resolution processes which are combinations of the three central ADR approaches. These include med-arb, mini-trial, recourse to rent-ajudge 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 in Canada over the centuries. The earliest attempt to deal with Aboriginal claims was through the signing of treaties. After the making of treaties, several other mechanisms were used to resolve outstanding grievances and claims between First Nations and the Crown. These included litigation, negotiation, and to a lesser extent, mediation and arbitration. Experience with these various approaches has shown mixed results in resolving the land disputes in Canada. Different processes have been used to resolve similar claims in other countries. For instance, New Zealand created in 1975 a fact-finding tribunal to deal with Maori claims and Australia established in 1993 the National Native Title Tribunal which uses, among other 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 which are, or could be, employed to resolve the land question in Canada. Aboriginal land grievances are particularly interesting in that they reflect the complex nature of the relationship between First Nations  2  and Canadian governments. Thus, the search for dispute resolution mechanisms suitable to resolve the land question should be undertaken in light of the two basic characteristics of the relationship of the parties to these disputes: the cultural differences and the imbalance of power between the parties. These two elements are fundamental in the search for appropriate mechanisms to resolve land claims since it is well-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 be considered to determine how this factor affects the various dispute resolution processes employed to resolve Aboriginal land claims. I will briefly explore the sources of the imbalance of power between First Nations and Euro-Canadian governments and examine whether the various dispute resolution mechanisms 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 nonAboriginal society. Culture has fundamental implications in the search for appropriate dispute resolution mechanisms 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 between First 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 litigation models have not been fully developed to reflect the cross-cultural nature of their function when disputes are being addressed between First Nations and governments.” 2 The impact of cultural differences on the various dispute resolution processes will therefore be examined throughout this thesis.  1  B. Lund, C. Morris and M. LeBaron Duryea, Conflict and Culture - Report of the Multiculturalism and Dispute 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 at 82.  3  This thesis does not argue the case for or against Aboriginal land rights. It recognizes that such rights already exist in Canada. Already in place are processes of land claims resolution such as the federal land claims processes, the Indian Claims Commission, the British Columbia Treaty Commission and the Indian Commission of Ontario. This thesis proceeds rather on the widely accepted view that the existing land claims mechanisms are not working well and that the pace and conditions for the resolution of land claims disputes are inadequate. Canada and First Nations have acknowledged that there exists a need for a new approach for resolving the numerous outstanding land claims. Therefore, what this thesis seeks to do is to examine various dispute resolution mechanisms in the context of Aboriginal land claims and comment on the appropriateness of each of these processes. My interest centres on finding processes to achieve both the resolution of disputes and broad cross-cultural acceptance in society.  General Structure In order to understand the nature of the land question from the perspective of both First Nations and Canadian governments, the first chapter will briefly examine the history of land claims policies and processes in Canada, discuss the historical relationship between Aboriginal peoples and governments, and explore the main assumptions, premises, values and beliefs held by the parties involved in Aboriginal disputes, and the dynamics of their relationships. The following three chapters will examine specific dispute resolution processes which have been, or could be employed to resolve the land question in Canada. In Chapter Two, I will analyze the advantages and disadvantages of litigation in the context of land claims cases. In Chapter Three, I will examine the process of negotiation with a focus on the federal government’s policies on land claims. In Chapter Four, I will discuss both the processes of mediation and arbitration and consider the appropriateness of these mechanisms to resolve land claims in Canada. I will then proceed with a comparative look at three institutions which have been created to resolve Aboriginal claims in New Zealand, Australia and Canada. In Chapter Five, I will therefore compare the Waitangi Tribunal of New Zealand, the National Native Title Tribunal of Australia and the British Columbia Treaty Commission. Finally, in Chapter Six, I will identii’ the essential elements which must be present for dispute resolution mechanisms to be successful in the Aboriginal land claims context and recommend  4  strategies to improve the existing processes in Canada. Essentially, these conditions will involve increasing the bargaining power of Aboriginal groups vis-à-vis Canadian governments and validating First 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 definitive answers to all the questions raised. My analysis will offer some general findings which might be useful to governments and Aboriginal organizations who are working to design appropriate processes for resolving land claims. At the end of each chapter, suggestions will be made to improve the various dispute resolution processes used to resolve land claims in order to address the particular characteristics of disputes between Aboriginal groups and governments. In Chapter Six, I will recommend the integration of some fundamental principles into a general model to resolve the land disputes. These recommendations are only a foundation for further discussions since I believe that the search for a fair approach to resolve land claims must be the product of a joint effort between Aboriginal peoples and govermnents in consultation with non-Aboriginal interests.  Scope of the Analysis The 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 that relate to the fulfillment of Indian treaties or to the administration of lands and other assets under the Indian Act . “Comprehensive claims” are claims that are based on traditional native use and occupancy of 3 the land. Such claims arise in those parts of Canada where native title has not been previously dealt with by treaty or other means including the Yukon and Labrador, most of British Columbia, and parts of -  Quebec and the Northwest Territories. They are comprehensive in their scope, including such elements as land title, specified hunting, fishing and trapping rights, financial compensation and other economic and social benefits. They have been equated to modem day treaties. Finally, “claims of another kind” are  R.S.C. 1985, c. 1-5. Canadian Bar Association, Report of the Canadian Bar Association Committee on Aboriginal Rights in Canada: An Agenda for Action, (Ottawa, CBA Communications, August 1988) at 53-54. [hereinafter An Agenda for Action]  5  claims based on traditional use and occupancy by First Nations that have entered into treaties before  Confederation where the terms of the treaties do not deal explicitly with land. 4  For years, thç defimtions and the distinction between different types of claim have been severely criticized 5 In the last federal election, the platform of the Liberal as being “artificial”, “arbitrary” and “inadequate”. Party of Canada, Creating Opportunity, 6 committed the party to eliminating the distinction between specific and comprehensive land claims. It stated that “[i]nstead of separate specific and comprehensive claims, we propose a general policy encompassing all claims.” 7  Although the focus of my thesis will be mainly on the resolution of comprehensive claims, my analysis is not without significance for specific claims. In fact, most of the issues involved in the resolution of comprehensive claims are applicable to other types of disputes involving Aboriginal peoples and governments and extensive references will be made throughout this thesis to mechanisms used to resolve specific claims both in Canada and in other countries.  Research Methodology In 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, I used different methods of research and analysis. The critical approach is used to question the selfprofessed legitimacy and fairness of some dispute resolution processes as well as to examine the theoretical underpinnings of various processes for cultural biases. The comparative method is helpful in analyzing different institutions that have been created in Australia, New Zealand and British Columbia to  Turpel, 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: Six Nations 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]. Aboriginal Peoples, supra note 6, at 12. 7  6  resolve Aboriginal claims. Finally, considering that the field of dispute resolution is informed by a wide variety of disciplines, the interdisciplinary approach is used in my thesis to present different propositions regarding which dispute resolution mechanisms are the most appropriate to resolve Aboriginal land claims based on anthropological, historical, sociological and political variables.  Problems with Topic and Methods 1.  Diversity of First Nations in Canada  One of the difficulties in trying to find appropriate dispute resolution mechanisms to deal with Aboriginal land claims is to accommodate the diversity of Aboriginal peoples in Canada. There are approximately 633 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. Not only is there regional diversity, but there are also significant differences between the Aboriginal groups within 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 and raise sensitive inter-Aboriginal issues of territorial boundaries and rights. 9 This diversity of First Nations in Canada makes it more difficult to deal with Aboriginal issues in general and renders the search for appropriate dispute resolution mechanisms to resolve Aboriginal claims much more problematic than in countries such as New Zealand where there is only one indigenous group. Thus, in proposing changes to the actual land process, one must be careful to avoid recommending a rigid policy that precludes a diversity in settlement agreements depending on the Aboriginal group and its geographical location. It is important to address this diversity to ensure that the process is both fair and responsive to the circumstances of all First Nations in Canada.  2.  Regional Initiatives  8  Canada, Report of the Task Force to Review Comprehensive Claims Policy, Living Treaties: Lasting Agreements (Ottawa: Queen’s Printer, December 1985) at 47. [hereinafter Living Treaties: Lasting  Agreements] Turpel, supra note 2, at 64.  7  Another 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 a significant innovation and may, to some extent, be a sign of the failure of the federal land claims processes.’° The search for a land claims model at the national level must therefore not only acknowledge the existence of these regional initiatives, but the national approach should be informed by their experience and respect their mandate. The institutions in Ontario and British Columbia will be discussed as part of this thesis.  3.  Combining Literature from Different Fields of Study  One of the major difficulties encountered in my research for appropriate dispute resolution mechanisms to resolve Aboriginal land claims relates to the fact that the literature dealing with the resolution of Aboriginal claims has not fully integrated ADR theories, nor does the literature on ADR apply its theories or use examples to fit the Aboriginal claims context.’ These two fields of study have been generally researched separately. However, recent initiatives tend to demonstrate that academics, First Nation leaders, lawyers and governments have finally come to realize that appropriate dispute resolution processes can aid substantive changes in the resolution of the land question by providing a fair context to 2 assess these difficult questions.’  One example of the difficulty in applying ADR literature to the Aboriginal claims arena relates to the fact that most of the ADR literature does not address the issue of cultural differences. It appears that most commentators 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 of Aboriginal rights with no real analysis of the various processes to achieve a resolution of these critical questions. 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 on Aboriginal Peoples & Dispute Resolution” (Victoria, B.C.: April 30 May 3, 1996); Indian Commission of Ontario, Land Claims in Canada: Beyond the Rhetoric A Debate About the Critical Issues (National Conference, Toronto, June 26-27th, 1996). -  -  8  culture, usually “western” culture. They rarely mention the fact that ADR strategies and techniques are culturally relative and that what is considered appropriate behaviour by one culture may not be considered appropriate by another.’ 3 A study done in Victoria between 1990 and 1994 by the UVic Institute for Dispute Resolution, through its Multiculturalism and Dispute Resolution Project, noted that before the 1980s, most work in the conflict resolution field did not address cultural issues.’ 4 According to Michelle LeBaron 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 multidimensional phenomena and difficult to examine. As such, there are the usual difficulties inherent in social science research including the isolation of variables, the observer effect, among others. Second, dispute management has only recently been acknowledged as having cultural components.’ 5  Thus, the ADR literature is not always applicable to the Aboriginal claims context, since it does not adequately deal with cultural differences. However, it must be noted that this is slowly changing.’ 6 Recently, the ADR field has seen developing an increasing body of literature .which underscores the integral role of culture in conflict resolution, the intertwined and interactive relationship between conflict and culture, and the fact that all conflict involves culture, not just intercultural conflict. This interdisciplinary literature comes from the fields of education, anthropology, psychology, sociology, communication, management and law. The literature indicates only a beginning understanding of the relationship between conflict and culture. There is little theory specifically relating to conflict and culture. Even less literature has clear cross-cultural applications.’ 7  Terminology Some preliminary definitions of the various terms used throughout this thesis to identify indigenous people 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 Royal Commission on Aboriginal Peoples, May 1993) at 5-6. “ M. LeBaron Duryea, Conflict and Culture A Literature Review and Bibliography (Victoria: UVic Institute for Dispute Resolution, 1992) at 20. ‘ Ibid,at3l. 6 NOTE: However, Michelle LeBaron Duryea has done extensive research in the field of conflict and culture, 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-arching principles that apply in conflict resolution across cultures are the universal need for respect, caring, and procedural fairness. -  9  applies to status and non-status Indians, Inuit and Metis. “Aboriginal” is also the term used in the Constitution Act, 1982. I also use the term “First Nations” which refers to the indigenous peoples of Canada, who have historically been described by Europeans as Indians. “First Nations” is the term preferred by many Indian nations. The term “Indian” is used to refer to Indians only in the context of the Indian Act, which distinguish between Indians who have status and excludes non-status Indians, Metis and Inuit. I use the term “indigenous peoples” when referring to the international level, given that it is now the accepted usage at the United Nations. The term “native” is also occasionally used to describe Aboriginal people of Canada.  10  CHAPTER ONE  RELATIONSHIP BETWEEN ABORIGINAL AND EURO-CANADIAN SOCIETY  Part I  Historical Background  Before examining the various dispute resolution processes which are employed or could be employed to resolve Aboriginal land claims in Canada, it is first necessary to briefly examine the historical relationship between Aboriginal and non-Aboriginal societies to understand how this history has contributed to creating the present political and legal reality with respect to Aboriginal claims.  A.  The Early Period  1.  The Royal Proclamation of 1763  Early in the settlement of Canada, the British Crown forecast the tensions that would arise between First Nations, who had long lived on the land then being settled, and the newcomers from Europe. In order to protect Aboriginal people from settlers eager to obtain vast amounts of land in what would become Canada, and to establish peace among all peoples, England passed the Royal Proclamation of] 763.18 The Proclamation declared, among other things: that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of our Dominion 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” and could not be settled on, and it dictated that only the Crown could acquire land from Aboriginal people within Canadian territories: it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our Said New Govermuents, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.’ 9  18  The Royal Proclamation of 1763, R.S.C., 1985, Appendix II, No.1. Quoted in D.W. Elliot, eds., Law and Aboriginal Peoples of Canada, 2d ed., Canadian Legal Studies Series (Ottawa, Ont.: Captus Press, 1992) at 29-30. NOTE: The vagueness of this description of  19  11  The spirit of the Proclamation was followed, to some degree, in some of the early treaties that were signed between the Crown and the First Nations of Canada. ° Further, the Royal Proclamation of] 763, as part 2 of the Constitution of Canada, is included in a schedule to the Constitution Act, 1982. The Proclamation was referred to by Mr. Justice Dickson of the Supreme Court of Canada in Guerin v. The Queen as the source of a fiduciary obligation owed by the Crown to Indians. ’ Some aspects of the Royal Proclamation 2  can also be found in the surrender provisions of the Indian Act. 22  2.  Treaties  In the early 1700s, the Crown started to secure title to the land by signing a number of treaties with Aboriginal groups who ceded title in exchange for land reserves and other rights. Most of the treaties signed 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 the First Nations to hunt and fish at liberty as they had been accustomed to doing. 23 More than 30 different treaties covering the Great Lakes basin were entered into between 1763 and 1850. The prairies were settled through the “numbered” treaties, signed between 1870 and 1921. The adhesion to Treaty 9, covering most of northern Ontario, was entered into in 1929.24  territorial limits is the basis for the British Columbia government claim that the Royal Proclamation does not apply to this province, west of the Rocky Mountains. Inthan Claim Commission, “A Fair and Equitable Process: A Discussion Paper on Land Claim Reform” 20 (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 was assumed by the Crown in 1763 when it began to interpose itself between aboriginals and prospective purchasers of their land by accepting a surrender of title from the Indians and then by acting on their behalf. 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 surrender provisions have their origins in the Royal Proclamation. See Easterbook v. R. [19311 S.C.R. 210 at 21415. An Agendafor Action, supra note 3, at 1; Living Treaties: Lasting Agreements, supra note 8, at 2. 23 24 ICC, supra note 20, at 7; Living Treaties: Lasting Agreements, supra note 8, at 2-3.  12  In B.C., however, relatively few treaties were signed. On Vancouver Island, the British Crown gave trading rights to the Hudson’s Bay Company, and placed it in charge of immigration and settlement. 25 James Douglas, who became governor of the Vancouver Island colony in 1851, was instructed to purchase First Nation lands. Between 1850 and 1854 Douglas made fourteen purchases on the Island covering an area of about 358 square miles about 3 percent of Vancouver Island. 26 Douglas recognized pre-existing -  Aboriginal land ownership as well as Aboriginal rights to fish and to hunt on unoccupied treaty lands. 27 When the mainland was made a colony in 1858, Douglas was encouraged by the Colonial Office to continue purchasing land, but the Colonial Office refused to offer funds, stating that the money should be raised locally. 28 In a letter to Douglas dated October 19, 1861, the Secretary of State for the Colonies wrote: “I am fully sensible of the great importance of purchasing without loss of time the native title to the soil of Vancouver Island; but the acquisition of the title is a purely colonial interest, and the Legislature must not entertain any expectation that the British taxpayer will be burthened to supply the funds  ,29  However, unable to raise sufficient funds locally, Douglas made no further purchases. ° Douglas then 3 sought to create a future for First Nations “in which they would be secure, prosperous, equal, and ’ Small reserves started to be created as protection from aggressive land acquisition by 3 assimilated.” 32 and a policy of assimilation guided the new colony. settlers 33 Unfortunately, not everyone in the new  25  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, at 4-5. RD Francis et al., Origins: Canadian History to Confederation, (Toronto: Holt, Rinehart and Winston 26 of Canada, 1992) at 393; E. Stokes, “The Land Claims of First Nations in British Columbia” (1993) 23 VUWLR 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 1.1.01. 28 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 federal government 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 Self Reliance Aboriginal Land Claims (Native Investment & Trade Association, Conference held on May 1214, 1990) at 1. 32 NOTE: By the time the colony of B.C. entered Confederation in 1871, 120 Indian reserves had been established throughout the colony. These reserves were considerably smaller that those elsewhere in the -  13  colony on the mainland agreed with Governor Douglas’ recognition of Aboriginal title. As a result, in the years following Douglas’s retirement in 1864, many of his policies were reversed. Joseph Trutch assumed control of Aboriginal policy and in contrast to Douglas, regarded First Nation people as “inferior 34 The legislature of the united colony removed Aboriginal people’s right to acquire Crown land savages”. and affirmed that Aboriginal title had never been acknowledged. No compensation was offered to Aboriginal people for the loss of traditional lands and resources. 35  3.  Confederation  Section 9 1(24) of the British North America Act gave the federal government jurisdiction over “Indians and Lands reserved for Indians”. The basis upon which Canada would fuffill this role soon became the subject of many federal-provincial jurisdictional disagreements. These disputes are still at the heart of many difficulties currently experienced in resolving Aboriginal claims. One of these disputes was brought to the Judicial Committee of the Privy Council in Britain, and as a result of this case, the provinces of Canada obtained control of all the lands within the boundaries that the Indians had ceded by way of treaty to the federal Crown, or to the British Crown before 1867.36  Under federal control, First Nations became subjected to the constraints of the Indian Act, enacted in 1868. It has been suggested that the Indian Act “...was a mandate for government administrators to  country. 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 Peoples of British Columbia: A Profile (Victoria:, 1992) 1; F. Cassidy and N. Dale, After Native Claims? The Implications 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. B. C. Task Force, supra note 25, at 7. 33 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 case was the most important Indian land rights decision in Canada for many decades, even though no Indians were represented before the Court. ICC (1995), supra note 20, at 8. -  14  control the lives of Indians on reserves.” 37 The impact for First Nations of being subjected to the Indian Act was explained as follow: The “band” system of administration was imposed on First Nations and bands were made subject to detailed supervision by federal officials. The governments outlawed the great, traditional potlatches which were the heart of the First Nations’ social and political system. Throughout the province, the authorities removed children from their families and communities, and placed them in residential schools. Separated from their families and their own society, forbidden to speak their own language, the children were to be educated as non-aboriginals. Inevitably, the persistent and growing exclusion from traditional lands, seas, and resources led to an increasing reliance upon federal support programs. These actions began a long decline into a state of 38 dependency.  During the 1880s and 1890s, some inter-governmental disputes relating to Aboriginal issues were directed to an Arbitration Board created to adjust financial accounts between Canada and Ontario, but without much success. 39 During the same period, Aboriginal groups in the west part of the territoiy were enjoining governments to continue negotiating treaties. These demands were reiterated over the following ° In B.C. where almost no treaty had been signed, the First Nations 4 decades but remained unanswered. .remained adamant in their demands for recognition of aboriginal title and the making of treaties. Just as persistently, the federal and provincial governments declined to respond to the aboriginal demands. While some non-aboriginal people supported aboriginal concerns, most of them, particularly at the political level, held the view that aboriginal title had never existed in B.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 and B.C. governments agreed in 1912 that a Royal Commission should re-examine the size of every reserve in 42 The Commission sat continuously from 1913 to 1916 and visited all the tribes in the province of B.C. the province. Its report was published in four volumes in l916. The Report of the Commission  I. 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. B. C. Task Force, supra note 25, at 9. 38 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. Teant (1993), supra note 27, at 1.1.03; R.C. Daniel, A History ofNative Claims Processes in Canada 42 1867-19 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).  15  recommended the enlargement of some reserves, but also advised that much valuable land be cut off from 44 Disregarding both the Indian Act and the constant reassurances from the commissioners that the others. size of reserves would not be changed without First Nations’ consent, the governments imposed land reductions unilaterally. 45  4.  First Nations Organization  Courageous in their struggle to attain recognition of their right to the land, First Nations started to organize themselves. In 1908, the Nisga’a Land Committee was formed in B.C. and in 1916, the first inter-tribal First Nations organization, the Allied Indian Tribes of British Columbia, was founded. 46 In June 1926, the Allied Tribes had raised enough money to present a land claim and a petition to 47 As a direct consequence of that petition, a Special Joint Committee of the Senate and House Parliament. of Commons was convened on March 22, 1927, to hear evidence and to report. 48 In its report, the Committee dismissed the demands and declared that “the natives had not established any claim to the lands of British Columbia based on aboriginal or other title.” 49 The same year, Parliament amended the Indian 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 in writing, receives, obtains, solicits or requests from any Indian any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indians to which such Indian belongs, or of which he is a member, has or is represented to have for the recovery of any claim or money for the benefit of the said tribe or band, shall be guilty of an offense and liable upon summary conviction for each offense to a penalty not exceeding two hundred dollars and not less than fifty dollars or to imprisonment for any 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 note 27, at 1.1.03. 46 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 1.1.04. Daniel, supra note 42, at 50. 48 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 Indian Legislation, Vol. 2, at 301. “  16  This amendment blocked Indian bands from effective political and court action in pursuit of their rights until 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 with Aboriginal claims. Aboriginal issues were simply not on the agenda of the government during that period. 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 of various mechanisms for dealing with native claims prior the World War II, one must conclude that, on the whole, they were not effective. In fact the peculiar nature of the relationship between Indian people and the federal government seems to have provided a fertile ground for creating claims and no mutually acceptable mechanisms for resolving them, with the possible exception of the treaties. 52  8.  Post World War 11  After the Second World War, tribal councils and political Aboriginal organizations became very vocal and the political activity in pursuit of the land claims re-emerged. Canada finally decided to address the “Indian problem” after over 100 years during which “...law and policy directed towards Indians had been built upon the premise that Indians were a disappearing race, doomed to extinction as a result of disease  and assimilation.” 53 In 1946-48 and 1958-61, joint committees of the Senate and the House of Commons recommended the creation of an Indian Claims Commission, similar to the American Indian Claims Commission, 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 in June, 1965 after consultation with Aboriginal groups but both times the draft bills died on the order 54 paper.  ‘  An Agenda for Action, supra note 3, at 10; See also B.C. Task Force, supra note 25, at 11; See also Daniel, supra note 42, at 53; Tennant (1993), supra note 27, at 1.1.04; L. Mandell, “Creeping Out of the Dark 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 Process -  17  Starting in the 1960s, commissions of inquiry were used in identifying Aboriginal interests and legal issues when conflicts developed in areas subject to Aboriginal claims. These commissions of inquiry include the Northern Natural Gas Pipelines, West Coast Oil Ports, Northern Development in Ontario, Metis Land Entitlements in Manitoba and Alberta. 55  During the same period in B.C., one attempt at negotiating a settlement was made by Arthur Laing, then Minister of Indian Affairs. Minister Laing was showing some interest in discussing the land question because of the threat of litigation. Before starting negotiations, he insisted on the condition that the various bands in B.C. united in one negotiating team. Given the Aboriginal diversity in B.C., this was an unrealistic demand and this attempt to negotiate Aboriginal title failed. 56 In the late 1960s, the Nisga’a went 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. 57  1.  White Paper of 1969  Tn 1969, the federal government proposed a fundamental change in the relationship between First Nations and the Euro-Canadian society by submitting the Statement ofthe Government of Canada on Indian 58 The govermnent’s White Paper essentially reiterated the government’s position that Aboriginal Policy. title claims were “too vague and undefined” to be dealt with and called for the abolition of treaty rights and the termination of the “special status” of Canada’s Indians, suggesting that they should have “the  and the Resolution of Indian Claims, Studies in Aboriginal Rights No.3 (Saskatoon: University of Sask. Native Law Centre, 1981) at 11. Agenda for Action, supra note 3, at 74. D Sanders, “Pre-Existing Rights: The Aboriginal Peoples of Canada: A Commentary” in Beaudoin and 56 Ratushny eds., The Canadian Charter ofRights and Freedoms, 2d ed. (Toronto: Carswell, 1989) 707 at 714. B.C. Task Force, supra note 25, at 12. Tennant (1993), supra note 27, at 1.1.05. 57 58 Canada, Statement ofthe Government of Canada on Indian Policy (Ottawa: Queen’s Printer, 1969).  18  59 Many contend that this policy was in fact the final same rights and opportunities as other Canadians.” 60 According to Menno Boldt and 3. Anthony Long, steps toward assimilation. .the White Paper blamed the economic and social stagnation of Indians and their condition of dependency on the existing policy of internal colonialism. The White Paper proposed that the only acceptable solution to the “Indian problem” was to integrate Indians fully and equally into Canadian society. To achieve this objective, the White Paper recommended the repeal of the Indian Act, [and] the removal of special status for Indians.. •61 • .  The White Paper had a major effect in raising the political consciousness of First Nations and contributed 62 Aboriginal groups from everywhere in in uniting Aboriginal groups across the country as never before. Canada, who were obviously not consulted in the development of this policy, condemned the White Paper 63 Terry which they perceived as being racist in its intent and potentially genocidal in its consequences. Lusty, a Metis from Calgary, circulated a small pamphlet in many Aboriginal communities in Canada entitled 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 paternalistic administration to govern them so how can the Indian be the one to blame for his current 64 situation? -  The Trudeau government was embarrassed by the unexpected opposition from Aboriginal groups and, as a 65 The govermnent finally retracted the White result, started funding Aboriginal political organizations. Paper in 1970, although it is suggested that “...the legacy of suspicion and mistrust which they left in their wake remains strong to this day.” 66  Cassidy and Dale, supra note 32, at 9; See also Daniel, supra note 42, at 153; Tennant (1993), supra note 27, at 1.1.05; ICC (1995), supra note 20, at 9. 60 Mandell, supra note 51, at 2.4.07. 61 M. Boldt and J.A. Long, The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985) 3 at 7. Durocher supra note 20, at 31-32; ICC (1995), supra note 20, at 9. 62 63 Boldt and Long, supra note 61, at 8; See also A. Fleras and J.L. Elliot, The Nation Within AboriginalState Relations in Canada, the United States, and New Zealand (Toronto: Oxford Univ. Press, 1992) at 43; S.W. Weaver, Making Canadian Indian Policy: The Hidden Agenda 1968-1970 (Toronto: University of 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 rapidly came 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 in Canada (Toronto: Butterworths, 1980) at 29; See also Boldt and Long, supra note 61, at 5; See also J.L. -  19  As part of the White Paper, the federal government had accepted to recognize the validity of certain specific claims where a “lawful obligation” existed. These claims were to be resolved with the assistance of the new Office of Indian Claims Commissioner. Lloyd Barber was first appointed to the position on December 19, 1969.67 The Office of the Indian Claims Commissioner was established under the Public Inquiries Act to consult with Indian groups and to inquire into specific claims. 68 The Commissioner’s role was not to deal with the merits of any claims but rather to consider appropriate methods of resolving these disputes. 69 The concrete role played by Lloyd Barber appears to have been along the lines of unstructured mediation as an aid to the negotiation process: The role of the Indians Claims Commission thus evolved into one characterized by a variety of functions: chairman of negotiations, facilitator, mediator, middleman, ombudsman, prodder, sounding board. Sometimes specific questions required immediate resolution, but more often it was a matter of the general framework within which on-going issues between the Indians of Canada and the Govermnent could be identified and resolved. 70  Thus, the Commissioner acted as a mediator, helped to clarify issues, established structures and processes for negotiation. ’ However, many First Nation leaders criticized the role of the Commissioner partly 7 because it was associated with the White Paper, but particularly because his mandate excluded substantive consideration of Aboriginal issues and his powers were too limited to put pressure on the parties. 72 The office of the Indian Claims Commissioner was discontinued in 1977.  2.  Calder Decision in 1973  Tobias, “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 of Toronto Press, 1991) at 141. 67 Appointed by Order in Council 1965-2404. Canada, Commissioner on Indian Claims, A Report Statements 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 of Library Holdings (Ottawa: Indian Claims Commission, 1975) at 22. 69 P.A. Cumming & N.H. Mickenberg, Native Rights in Canada, 2d ed, (Toronto: The Indian-Eskimo Ass. & 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.  20  Tn 1973, the Supreme Court of Canada ruled in Calder v. Attorney General ofBritish Columbia 73 that the Nisga’a had held Aboriginal title in pre-colonial times, but the judges were evenly divided on the question of the continuing existence of that title. 74 The then Prime Minister, P.E. Trudeau admitted that the Nisga’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”. 75 According to Trudeau, the Calder case allowed him to reconsider the colonialist assumptions underlying government Aboriginal policy and to acknowledge the possibility of self-determination, Aboriginal and treaty rights, and self-government as key organizing principles. 76 Thus, the Calder decision altered the framework for arguing Aboriginal rights and provided significant bargaining leverage to Aboriginal groups.  The strong reaction of the Aboriginal groups to the 1969 White Paper, combined with the important decision of the Supreme Court of Canada in Calder in the early 1970s, forced the federal government to rethink its approach with respect to Aboriginal land claims. In fact, the Calder decision had a decisive effect on the federal government for it showed that land claims could no longer be casually dismissed and thus influenced the government to agree to negotiate Aboriginal land claims. What followed over the next 23 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 be resolved through negotiations. This shift was reluctant, for the liberal government of Trudeau had opposed a nationalism on the part of Indians. In fact, the policies under the Trudeau government persistently reflected the attitude that special treatment was discriminatory treatment. Other factors also contributed to force the government to reconsider its approach in the early 1970s. These include the strong influence of the public opinion which supported the resolution of Aboriginal claims, the precarious situation 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.: Viking Penguin, 1990).  21  claims, and a consciousness that the social and economic condition of the First Nation communities conflicted with Canadian ideas of human rights and national prestige.  3.  Land Claims Policies  On August 8, 1973, the federal government issued a policy statement recognizing claims based on traditional use and occupation of the land, referred to as “comprehensive claims”. This policy called for the “exchange of undefined aboriginal rights for concrete rights and benefits that would be guaranteed by settlement legislation.” 77 This “exchange” did not, however, imply an admission by the government that 78 The policy stressed that in exchange for these rights and these “undefined” rights actually existed. benefits, all Aboriginal rights and title were to be extinguished once and for all. 79 With respect to the process of negotiation, it has been suggested that while this new policy “...confirmed the government’s newfound willingness to talk, it also demonstrated Ottawa’s determination to control the outcome of any ° The federal government was indeed induced to adopt a preference for negotiated 8 negotiations.” settlements as it probably realized that it would have more control of the process and outcome of negotiation than litigation.  Tn July 1974, the federal government created the Office of Native Claims (ONC) as part of the Department of Indian and Northern Affairs to deal with the growing number of claims that were being received. ’ The 8 process 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 documentation would be reviewed by ONC officials and an agreement on the facts would be reached between the two parties; (3) the claim would be handed over to the Department of Justice, which would decide if a “lawful obligation” existed. If a claim was deemed “valid”, the government would agree to enter into negotiations  Living Treaties: Lasting Agreements, supra note 8, at 13. Agenda for Action, supra note 3, at 24. Jbid. 79 ° A. Murray, And the Last Shall Be First: Native Policy in an Era of Cutbacks, (Toronto: NC Press Ltd, 1991) at 45. 8 Durocher, supra note 20, at 32. NOTE: More than 600 specific claims have been submitted to the federal govermnent since 1973.  22  to fulfill its obligations. If not, the claim would be rejected, and the matter would end. 82 The James Bay and the Mackenzie Valley disputes were handled by the ONC. The James Bay and Northern Quebec Agreement, the first Canadian land claims agreement, was signed in 1975 with almost 11,000 James Bay Cree and Inuit of Northern Quebec.  In 1975, a Joint National Indian Brotherhood/Cabinet Committee was formed to study, among other things, whether there should be a national approach to the resolution of land claims. The committee was in operation until January 1979.83 From this committee, an agreement was reached to create a subcommittee called the Canadian Indian Rights Commission with a mandate to discuss the principles and parameters of mechanisms to make settlements. However, the only process which was set up was the Indian Commission of Ontario (ICO) in March 1978. The ICO is a neutral and independent Tripartite Council with a mandate to provide a forum for the negotiation of specific claims and to deal with questions relating to Aboriginal self-government in Ontario.  During the same period, one notable event which occurred was the beginning of negotiations in 1976 with the Nisga’a Tribal Council and the federal government. 84 Moreover, in 1979, the federal government asked 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 and objectivity in considering the claims presented to it. He recommended the establishment of an  82  A. Murray, supra note 80, at 39 and 41. NOTE: “In cases where the Department of Justice confirms that a “lawful obligation” exists, the Office of Native Claims may still refuse to enter into negotiations if the cost of a settlement has the potential to overwhelm ONC’s limited budget. Bands with such legally valid but expensive claims are not offered redress by the government through negotiations, as the policy would imply. They are left to go to court because the government is not willing to allocate the funds necessary 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 did not join the Nisga’a negotiations until 1990 when it finally reversed its policy. Elliot, supra note 18, at 49; Tennant (1993), supra note 27, at 1.1.05; J. Aldridge, “An Overview of the Land Claims Settlement Process in B.C.” in The Economic Bridge to Self Reliance 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. -  23  independent tribunal to adjudicate and otherwise assist the resolution of the claims. 85 The government did not follow Mr. LaForest’s recommendation.  4.  Constitution Act, 1982  The year of 1982 was a turning point in the law relating to Canadian Aboriginal peoples. “Rights that had an uncertain existence in the common law were suddenly enshrined in the written part of the Canadian constitution. Aboriginal-government relations and aboriginal non-aboriginal relations were put into a more legal framework, and much more under the control of lawyers and courts.” 86 The Constitution 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 Canada  are hereby recognized and affirmed.” 87 These references to Aboriginal rights remain vague, but the courts have held they include the right to hunt and fish. Section 35 may also include the inherent right of selfgovernment according to the federal government’s recently released policy on Aboriginal selfgovernment. This premise was in fact part of the Liberal promises in the Red Book of 1993. Minister Ron Irwin confirmed this position by stating: “[T]he federal government operates on the premise that the inherent right to self-government exists and is recognized as an Aboriginal right under section 35 of the Constitution Act, 1982.88  5.  Revision of Land Claims Policies  In 1981, the federal government issued its revised comprehensive claims policy in a document entitled In All Fairness. 89 This document clarified some broad positions of the government, such as the desire to  85  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 it Take Another 500 Years?” in Native Land Issues (See You in Court...) (Winnipeg: CBA, April 1989) at 22. 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 (July 1995) 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 All Fairness). -  24  protect cultural identity of Aboriginal people while allowing their full participation in the development of the economy, the unwillingness of government to consider the issue of Aboriginal self-government and constitutional reform within the land claims process, and insistence that all settlements be final and result in the extinguishment of Aboriginal rights in exchange for specific benefits. ° Despite its title and 9 apparent revision, the 1981 policy received severe criticisms. For instance, the Nisga’a Tribal Council stated that  “...  (In All Fairness) is a very slick process to create in the public mind a definition of what is  fair; 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 Outstanding 92 It appears that this revised policy was also a disappointment. Instead of initiating major Business. changes to the previous policy, the government elaborated on the existing premises and only clarified the limits of what the government was willing to negotiate. The federal government reiterated that its main objective was to discharge lawful obligations, 93 and stated its preference for negotiated settlement for which it described a five-stage negotiation process to be followed, 94 a procedure developed unilaterally by the federal government. The development of land claims policies without the participation of Aboriginal groups has always been a major grievance with First Nations, especially with respect to specific claims policies as it clearly departs from the bilateral nature of the treaties. 95  90  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 for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985) 251 at 254; AnAgendaforAction, supra note 3, at 24. ‘ From testimony to the 1983 Penner Commission on Indian Self-Government, quoted in Leghorn, supra note 90, at 4. 92 Canada, Outstanding Business: A Native Claims Policy; Specific Claims (Ottawa: Queen’s Printer, 1982). Ibid, at 19. 93 Ibid, at 23-25. 94 Agenda for Action, supra note 3, at 54; E. Denhoff, “Specific Land Claims How Does A Tribunal Deal With Them?” in Native Land Issues (See You in Court...) (Winnipeg, CBA, April 1989) at 10. -  25  The comprehensive claims policy was revised again in 1987 in response to the report of the task force to Review Comprehensive Claims Policy (the Coolican Task Force) Living Treaties: Lasting Agreements. 96 -  The Task Force had called not just for a new policy on comprehensive claims, but an entirely “new relationship” between the government and the First Nations of Canada. Moreover, according to the task force, a serious impediment to reaching land claims settlements was the federal government’s insistence that all Aboriginal rights be extinguished in any comprehensive claim settlement. Consequently, the task force recommended an alternative which would allow for flexible agreements that would recognize and affirm Aboriginal rights. 97 In its response to the Coolican Report, the Mulroney government not only ignored the task force’s recommendations of not insisting on extinguishment of Aboriginal rights but rather emphasized the fact that settlements had to be final. In this latter policy revision, the government confirmed its commitment to negotiation, clarified what would be negotiable at the comprehensive claims table, expanded the scope of comprehensive claims in certain areas and ignored most of the other recommendations of the task force. 98 It has been suggested that this negative response to the Coolican Report has contributed to a deterioration in the relationship between the federal government and First 99 Nations.  6.  Oka Crisis in 1990  During the summer of 1990, members of the Kanasatake reserve near Oka, Quebec, decided to blockade a major 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 with this and another Mohawk blockade of the Mercier bridge in Montreal. The blockades continued until September when provincial and federal governments agreed to negotiate. 100 A number of First Nation groups across Canada also used rail and road blockades as an expression of their solidarity with the  96  Canada, Comprehensive Land Claims Policy (Ottawa: Queen’s Printer, 1987) (hereinafter Claims Policy- 1987). Living Treaties: Lasting Agreements, supra note 8. 98 Claims Policy-1987, supra note 96, at 9. Durocher, supra note 20, at 36. 99 100 Elliot, supra note 19, at 7; Fleras and Elliot, supra note 63, at 93.  26  activities of the Mohawk in Quebec and to emphasize their demands to both levels of government to recognize their inherent Aboriginal title and rights as well as to begin land claims negotiations.’°’ For all governments in Canada, the massive publicity over Oka drew attention to the dangers of not moving on Aboriginal claims. As a result of Oka, initiatives were made by New Brunswick and Quebec to establish Aboriginal seats in their legislatures. Further, it has been suggested that British Columbia, Saskatchewan  and Ontario have taken the land question more seriously, and each of these provinces has endorsed the principle of the inherent Aboriginal right to self-government.’ 02  7.  Revision of Land Claims Policy and Establishment of Land Claims Commissions  The 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 million annually, 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 without Treasury Board authority, the creation of a joint First Nationlgovermnent working group to review and make recommendations regarding land claims policy and process, and the creation of the Indian Claims Commission on an interim basis.’° 3 This Commission was created to deal with specific claims disputes 4 The Commission’s mandate is to conduct impartial inquiries where a First Nation challenges the only.’° federal government’s rejection of its specific claim and where a First Nation disagrees with the compensation criteria used by the government in negotiating settlement of a claim. In these situations, the Commission can conduct hearings in order to complete its report and then it must make recommendations  101  B.C. Task Force, supra note 25, at 14; See also Elliot, supra note 19, at 7; Tennant (1993), supra note 27, at 1.1.06. Fleras and Elliot, supra note 63, at 96. 2 ‘° 103 ICC (1995), supra note 20, at 14. NOTE: The mandate of the Joint Working Group (JWG) expired in July 1993. The parties were unable to reach agreement on an extension of the JWG’s mandate and the process 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.  27  to the federal government. The Commission also has the mandate of mediating disputes, when such a process is agreeable to both parties.’° 5  During the same period, an important regional initiative originated in British Columbia. The British Columbia Treaty Commission is a First 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 Aboriginal and non-Aboriginal commissioners and supervise the negotiations of modern 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, the Council for Yukon Indian Comprehensive Land Claim Umbrella Final Agreement was signed with 7,000 registered and non-registered Yukon Indians, providing a general framework for individual agreements with 14 Yukon First Nations. To date, four Yukon First Nation final agreements have been ratified by all parties and this process is continuing. Moreover, in December 1991, the Tungavik Federation of Nunavut land claims agreement was signed with 17,000 N.W.T. Inuit, after 15 years of negotiation. Under this agreement, Nunavut the third northern territory was agreed to and will be in place in 1999. The -  -  Nunavut 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 Sahtu Dene Indians and Metis. Finally, in February 1996, the B.C. government, Canada and the Nisga’a Tribal Council signed an agreement-in-principle after over 20 years of negotiations.  Part II  Aboriginal and Euro-Canadian Ideologies  The disputes over the land question in Canada is a reflection of the difficulties in reconciling fundamentally different philosophical and cultural systems. I will therefore briefly describe the major ideological 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. Elliot supra note 19, at 8. 6 ‘°  28  A.  Western-Liberal Ideology  Before contact, Aboriginal societies were self-sufficient and self-governing nations. However, the arrival of 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 aboriginal tribal society; to subject the indigenous to the rules, values, and sanctions of Euro-Canadian society; and to absorb the de-culturated minority into the mainstream through a process of ‘anglo-conformity’.” 107  The values of the colonial society were and are still very different from those of Aboriginal peoples. The European-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 with nature but in its conquest and transformation.”° 8 In the western-liberal tradition, the dominant conception of society is one where the individual is considered to be morally prior to any group. 109 North American Aboriginal peoples have a very different conception of individual and society. Traditional Aboriginal philosophies define a person in terms of spiritual unity, consensus, cooperation, and self denial.”° 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 a supposed moral and economic superiority of European culture and civilization over that of the native 2 Louise Mandell describes the western ideology as one which, people.” .assumes hierarchies of races; it is a commitment (over and above profit) that distant territories and their inferior peoples should be subjugated, and given the benefit of the superior dominion; it is a duty of the superior race to bring their opportunities, knowledge, democratic government to less evolved races and to promote their evolution. In summary, the vision is of western powers 107  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” in Boldt 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 Pipeline Inquiry, Revised Edition (Vancouver: Douglas & McIntyre, 1988) at 217.  29  who have a right to rule, indeed an obligation to do so because of the superiority of their race; in ruling inferior peoples they bring opportunity, benefits and enlightenment. 3 ’ 1  The means used by the Euro-Canadian governments to achieve their goal of assimilation were, among other things, the location of the Aboriginal people on reserves where they could be “civilized” and where education and Christianity could be brought to them.” 4 Children were removed from their families and communities and placed in residential schools where they were to be educated as non-Aboriginals.” 5 The reserve system also forced the replacement of the Aboriginal systems of governments with the introduction of western systems of governments, known as band councils.” 6 The governments outlawed the traditional potlatches which were the heart of the social and political system of Aboriginal peoples on the west 7 This paternalistic attitude went as far as prohibiting Indian people from raising money for the coast.” advancement of a land claim, prosecuting claims to land, or retaining a  8 In spite of the wy’  colonization movement, Aboriginal peoples survived. However, the effects of colonization and assimilation were dramatic: (the First Nations) say that their lands and resources have been stolen; that they, their institutions and their way of life have been ignored, disrespected, degraded. They say that they were abused by the education system, which tore apart families, and caused much grief. Residential schools also left them without the benefit of their peoples’ knowledge which ordinarily would have been passed to them. They say that their languages, spirituality and culture was attacked.” 9  B.  Modern Relationship  Ryan and Ominayak point out that the relationships between Aboriginal and non-Aboriginal people have changed 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. lbid, at 2. 4 “ Task Force, supra note 25, at 9. Mandell (1995), supra note 113, at 2. 6 “ “ See F.E. LaViolette, The Struggle For Survival: Indian Cultures and the Protestant Ethic in British Columbia (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 Columbia Studies: A Special Issue in Celebration of Our Survival: The First Nations of British Columbia (Spring 1990) No. 89, 34 at 35-36. “ Mandell (1995), supra note 113, at 2.  30  groups. They explain that “[t]hese relationships have reflected varying historical conditions as the two groups progressed. However, it is clear that at all times, the relationships reflect an attempt by the dominant group to control Indians and that the dominant group has, at all times, retained power (and thus ° 2 control) over native people.”  The attitudes of assumed Aboriginal inferiority and the government policies over the last century have had a cumulative impact which is reflected in contemporary relationships between Aboriginal and nonAboriginal societies. According to Judge Sarich, [t]he Indian Act of Canada is premised upon the postulate that Native people are incapable of managing their own lives, that they cannot make their way in non-Native society and that they are inferior to non-Natives. These concepts have been advanced for so long by the Government of Canada through the Department of Indian Affairs, and so uncritically accepted for so many decades by the non-Native population, that there has come to an unconscious acceptance of these so-called truths. The dependency, the poverty, the self-destruction to which the Natives were reduced by a conscious policy of government were unspoken confirmation of this ‘truths’ 121  The relationship between First Nations and Euro-Canadian governments has deteriorated slowly throughout 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 are -  -  now involved in trying to find an acceptable way to resolve some of the many injustices that have occurred during more than a century. All parties are claiming to represent legitimate interests and one must recognize that they all feel enormous pressure in the present social, economic and political context with respect to how to resolve these complex issues.  Part ifi  Dynamic Between Parties to the Land Claims Disputes  The land disputes have many characteristics which must be mentioned at the outset. One of the most important elements is the fact that these disputes involve many parties and none of these parties are monolithic they all represent a broad diversity of views among their respective groups. There are also -  120  and Ominayak, supra note 37, at 346. Canada, Report of the Royal Commission on Aboriginal Peoples Justice Inquiry, at 11. 121  -  Report of the Canboo-Chilcotin  31  some parties that will be directly involved in the resolution of these disputes while some others will only be 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’ Dilemma  1.  The Role of Ideology  Sally 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 native groups should be treated differently from other Canadians.” 22 It has been suggested that one of the most pervasive forces underlying the federal government’s resistance to Aboriginal rights demands is its resolute commitment to liberal-democratic ideology. Weaver explains that: Liberal-democratic ideology stresses equality, individualism, and freedom from discrimination on the 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. All of these concepts are viewed by the government as contradicting liberal-democratic ideology.’ 23  Therefore, it is suggested that the attitudes of governments in relation to Aboriginal demands “are shaped by a fundamental dualism regarding the nature of the ‘Indian problem’, with predictable consequences for policy resolutions.” 24 In fact, it appears that policy-makers are confused by competing definitions of equality; one entailing equal treatment and no special privileges, and the other acknowledging the necessity of special treatment for certain sectors if true equality is to be attained. When applied to aboriginal policy and administration, this duality of meanings breeds ambiguity and confusion, since some federal spending 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.’ 25  122  S.M. Weaver, “Federal Difficulties with Aboriginal Rights” in Boldt & Long, eds., The Questfor Justice: Aboriginal People andAboriginal Rights (Toronto: University of Toronto Press, 1985) 139 at 141-142. 23 NOTE: When provisions for special treatment of Indians have been incorporated into government policies, they have always been characterized as transitory or temporary measures and rationalized on the basis of economic need (socio-economic class), not on the basis of cultural recognition (ethnicity). Ibid, at 142. 24 and Elliot, supra note 63, at 51. ‘ Fleras 25 ‘ 1b1d  32  2.  Sensitive Political Issues  Governments generally seek to find a balance when dealing with Aboriginal issues by flying to represent what is generally accepted by society as being just and equitable. This is a difficult task. The dilemma facing governments was explained by John Ciacca in these terms: On the one hand, because our Sense ofjustice and concern for the disadvantaged is generally accepted by society, governments must be more flexible in their approach to native claims. On the other hand, claims cannot contain concepts and be viewed as being so exorbitant as to be rejected by society. We are caught in a balancing act between the views and needs of society on the one hand, and the needs and aspirations of the native community on the other.’ 26  Commentators, judges and First Nations have all recognized that the Aboriginal land question is fundamentally a political issue. It was suggested that all Aboriginal issues are “public issues where everyone feels he has, if not a direct interest, at least a sufficient interest to entitle him to have views on the subject and, more often than not, views which he considers just and which should prevail.” 27 Consequently, governments know that what is negotiated and the terms of settlement of any Aboriginal land claims will be ultimately decided by the political acceptance of their contents. “What the government offers and finally negotiates must be acceptable to the public.” 28  The determination of what the federal government will accept to negotiate is contained, since 1973, in the land claims policies. In setting the objectives and limits of what is on the negotiation table, the federal government 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 Chapter Three.  3.  Public Opinion  The public opinion concerning Aboriginal issues is precarious. Public-opinion polls done shortly after the Oka crisis in September 1990 and recently in B.C. indicate considerable public sympathy for the demands  126  j• Ciacca, “The Settlement of Native Claims” (1977) 15 Alberta Law. Rev. 556 at 557. Ibid 2 ‘ 7 at 561. 128  33  of Aboriginal peoples in Canada.’ 29 However, while there seems to be a general support for a fair resolution of Aboriginal land claims in Canada, this support is often disturbed or weakened by various factors including the amount of money to be granted to First Nations in compensation and the nonAboriginal interests being adversely affected by proposed settlements. The federal government must find the right balance between the various competing interests involved in land claims. Canada has a general obligation to represent all Canadian citizens, including all Aboriginal people. However, it is sometimes argued that in land claims negotiations the federal government tends to only represent non-Aboriginal interests at the negotiation table since Aboriginal people are on the other side of the table representing their own interests. Moreover, considering the fact that Aboriginal people represent about four percent of the total population in Canada, it becomes a difficult task for the government to find a balance between the interests of Aboriginal and non-Aboriginal people. There is therefore a risk that the views and desires of the ninety-six percent of non-Aboriginal Canadians will be a major influence in dictating to the government the way to resolve the land question in Canada.  4.  Personalities of Policy-Makers  It is also argued that personalities are a key factor in the development of policies both at the level of politicians and non-elected officials. Weaver contends that most of the policy initiatives in the 1960s and 1970s were strongly influenced by officials in various federal departments and agencies that were sympathetic to the Aboriginal cause. However, it seems that today these sympathetic public officials are few 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 the  129  NOTE: The survey done in September 1990 indicated that more than 67% believed the government had broken its obligations to Aboriginal peoples. Another 70% believed the government had failed to honour its treaty obligations, and 62% supported land claims settlements. Moreover, the Spicer Commission Report on the Citizens Forum for Canada’s Future in late June 1991 confinned overwhelming public support for equitable resolution of Aboriginal land claims and establishment of appropriate self-governing structures where warranted. Quoted in Fleras and Elliot, supra note 63, at 9798.  34  time nor, often, the skill or influence to translate native demands into policy forms acceptable to  5.  Political Priorities  Other central factors that influence the development of Aboriginal policies are the political priorities of governments. Governments are now focusing on economy and unemployment and there has been an strong emphasis on more rigorous financial control and management and spending restraint. According to Angus Murray, “Native people will inevitably be among the victims of any cuts in government spending because they are already a marginalized group in Canadian society demographically, -  regionally, economically, politically and racially. As competition increases for the remaining seats in the lifeboats, these factors will ensure that Native people will be among the first to be thrown out.” ’ Fleras 3 and Elliot agree that “Aboriginal policy at present is shaped in a context dominated by fiscal restraint and reduction of federal  Until now, Aboriginal programs have not been subject to the  general cuts made by the federal government. DIAND is nonetheless affected by the general spending restraint of the government. This can be illustrated by Minister Irwin’s comment in June 1996, during a national conference on land claims held in Toronto, when he raised the current fiscal problems as an obstacle to the creation of an independent claims body.  6.  Incentive  Some forces are driving provincial and federal governments to engage in the process to resolve the land question. 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 to halt development while the question of Aboriginal title and rights is being decided by the courts or being  ‘° ‘‘ 132  Weaver (1985), supra note 122, at 142-143. A. Murray, supra note 80, at 23. Fleras and Elliot, supra note 63, at 49.  35  33 More importantly, there is a clear sense that the absence of settlements is causing negotiated.’ uncertainty which is negatively affecting the economy. Frank Cassidy has described how this uncertainty is affecting the province of British Columbia: Developers wonder who their real landlords are or will be. Investors are concerned about the conditions that surround and will be surrounding development. Working people worry about their jobs. Small businesses, such as those in the fishing industry, are concerned about who will pay for settlements when they do come. Large businesses are thinking about going or just staying 34 elsewhere.’  The uncertainty created by land claims in Canada has resulted in economic losses. All levels of government have therefore expressed the fact that their primary goal in settling land claims is to end this uncertainty to encourage economic developments in regions affected by land claims.  7.  Complexity of Governments  Another 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 departments and 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 Development  When the federal government assumed jurisdiction over Aboriginal affairs in 1867, it created the Indian Affairs 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 “cannot be seen as moving too quickly, for that might risk electoral rebuke and grave social consequences. By contrast, moving too slowly incurs the risk of stoking the fires of another Oka in one of numerous hot spots across Canada. By the same token they cannot afford to be seen as weak and vacillating, passively accepting all aboriginal demands. Finding the proper political response, in other words, is critical if diverse 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 a Conference held February 21-22, 1990) (Vancouver: Oolichan Books and the Institute for Research on Public Policy, 1991) at 86. Weaver (1985), supra note 122, at 141 36 ‘ Ibid. -  36  was shortly after transferred to the Department of Interior, then to the Department of Mines and Resources in 1936, to the Department of Health and Welfare in 1945 and to the Department of Citizenship and Immigration in 1949. It was only in 1966 that the Department of Indian Affairs and Northern Development (DIAND) was created.’ 37  The Department of Indian Affairs and Northern Development has been severely criticized as being “an instrument of colonial domination, control and assimilation.” 38 However, the difficult situation in which DIAND finds itself must be acknowledged. DIAND faces a conflicting mandate in that it must administer the provisions of the Indian Act which is based on colonialist and paternalistic assumptions and, at the same time, it is asked to advance the cause of Aboriginal self-sufficiency and community self-government within the parameters of the Indian Act.’ 39  To 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 Supreme Court of Canada stated that: Through the confirmation in the Indian Act of the historic responsibility which the Crown has undertaken, to act on behalf of the Indians as to protect their interests in transactions with third parties, Parliament has conferred upon the Crown a discretion to decide for itself where the Indians best interests really lie... This discretion on the part of the Crown, far from ousting, as the Crown contends, the jurisdiction of the courts to regulate relationship between the Crown and the 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 the resolution of land claims. In fact, the Supreme Court of Canada ruled in Sparrow v. The Queen’ 42 that the Crown’s fiduciary obligations extend to the Aboriginal and treaty rights of the Aboriginal people of Canada. As a result,  Ponting and Gibbins, supra note 66, at 14-15. Fleras and Elliot, supra note 63, at 81. 39 ‘ Jbid. ‘° [1984] 2 S.C.R. 335. ‘‘ Ibid, at 384. 142 (1990), 70 D.L.R. (4th) 385 (S.C.C.). 138  37  .the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginal is trust-like rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historical relationship.’ 43  DIAND must also try to balance the competing demands of some 600 Indian bands, as well as those of the several government departments and agencies. Thus, it appears that “...many of the Department’s failures reflect its status as a bureaucracy, and the high degree of rigidity and inefficiency intrinsic to any large 44 Further, it was suggested that “the Department’s relatively low status within the organization.” government has cramped its effectiveness as a forum for aboriginal grievances.” 45 In fact, it is argued that “the primary (if latent) function of the Department is to contain and control aboriginal peoples, in large part by channeling aboriginal aspirations into avenues that are acceptable to outside interests.” 46 Fleras 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 at the same time be responsive and answerable to its aboriginal clients without much support from either sector. Confusion arising from this dual mandate has made DIAND a convenient target, and a lightning rod for aboriginal anger and frustration.’ 47 -  As a result, it has been suggested that “Natives have long been dissatisfied by their relationships with the bureaucracies of the federal government”. 148 It seems that the current relationship between First Nations  and the federal government, especially with DIAND, is primarily adversarial. Turpel contends that this environment of adversarial attitude and distrust makes it very difficult to introduce alternative philosophies of dispute resolution.’ 49 She explains that this climate of hostility and adversarialism is a result of the fact that “claims resolution policies have never been sensitive to the cross-cultural nature of the  43 at 24. ‘ 1b1d, 144 and Elliot, supra note 63, at 82. Fleras 45 ‘ 1b1d. 46 at 82-83. ‘ 1b1d, 147 Ibid, at 83. 148 Cassidy and Dale, supra note 32, at 26. ‘‘ Turpel (1995), supra note 2 at 81. 50 at 82. ‘ 1b1d,  38  7.2  Provincial and Territorial Governments  Federal-provincial/territorial relations with respect to Aboriginal issues remain mostly undefined. It appears that there has never been a systematic effort by the federal government to develop a clear policy direction engaging the provinces in Aboriginal affairs. ’ A good example of this is the lack of 15 consultation with the provinces and territories when the federal government released its first comprehensive 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 lands  and resources involved in the settlement of these claims fall under provincial jurisdiction. In the Yukon and the N.W.T., although lands and resources fall under federal jurisdiction, the territorial governments generally 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 to jeopardize their special relationship with Canada set out in the Royal Proclamation of] 763, the Constitution Act of 1867, and the In dian Acts of]876 and 1951. Further, in current land negotiations, it seems that federal and provincial governments still disagree on how to share the responsibility with respect to land rights. This exercise is often referred as the “jurisdictional ping-pong” and partly explains why First Nations often seek to negotiate only with the federal government.’ 52  It 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 the province’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 and Government Responsibility: Exploring Federal and Provincial Roles, (Ottawa: Carleton University Press, 1989). NOTE: However, constkutional recognition of existing Aboriginal rights has the effect of bringing the provinces into the negotiations on Aboriginal issues, given that the provinces’ part in the constitutional amending process gives them a key role in future efforts to define Aboriginal rights. Boldt and Long, supra note at 11. 152 Indian Commission of Ontario, In dian Negotiations in Ontario: Making the Process Work (A Report of the Indian Commission of Ontario, December 1994) at 33. ..,  39  refused any involvement claiming that comprehensive claims were a federal 53 responsibility.’ It was only in August 1990 that the provincial government agreed to join the First Nations and the government of Canada in land claims negotiations following a recommendation of the Premier’s Council on Native Affairs. Since 1990, the province of B.C. has entered into an agreement with the First Nations and the federal government to create the British Columbia Treaty Commission to supervise the negotiation of modern treaties in this province. Moreover, in February 1996, the first agreement-in-principle was signed by the Nisga’a people and both levels of government after more than 20 years of negotiations.’ 54  B.  First Nations of Canada  Many First Nations believe that the only way policies affecting Aboriginal people will change is by raising their issues on the public agenda. They have to convince the public of the legitimacy of Aboriginal issues in both the legal and the political sense. Miles Richardson, President of the Haida Tribal Society, stated that: “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 social 56 change.’  Therefore, when conventional means of redress have been ineffective or unavailable, Aboriginal groups have used various tactics including demonstrations of civil disobedience, policy protests, appeals to international agencies and occasionally violent confrontations to bring public and political attention to  153  Cassidy and Dale, supra note 32, at 12. NOTE: Under the agreement-in-principle, the Nisga’a will receive $190 million, ownership of about 1, 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 Institute for Research on Public Policy, 1991) 48 at 50-5 1. 56 and Elliot, supra note 63, at 85. ‘ Fleras 154  -  40  their grievances. Don Ryan, speaking of behalf of the Office of the Gitksan Wet’suwet’en Hereditary Chiefs, 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 this issue, and we have used the litigation route as one way to put pressure on them; the other is the direct political action that we have been involved with. (...) There has to be some movement in that area, and it takes a lot of effort to change policies. The strategies that we carry out to try to initiate that action require a lot of support from people. 157  Professor Douglas Sanders describes the entire strategy of the Gitskan and Wet’suwet’en to force a political response to their claim: “[t]hey used every strategy available - roadblocks, fish-ins, marshmallow fights, participation in the First Ministers’ Conferences, a play (that toured the province, the country, and the world), a film, links to academics, [a] conference  (...), [a] book, the book of the opening presentation,  buttons, shirts, posters, T-shirts.” 158  Therefore, 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 the national agenda.’ 59  Conclusion The relationship between First Nations and Euro-Canadian society has been a difficult one which has resulted in many serious grievances. Different means have been used to resolve complex disputes between Aboriginal people and Canadian governments, including treaties, litigation, negotiation and sometimes mediation and arbitration. However, as explained by Daniel, .the particular nature of the relationship between Indian people and the federal government seems to have provided a fertile ground for creating claims and no mutually acceptable mechanisms for resolving them, with the possible exception of the treaties. Since the war, there  157  D. Ryan, in F. Cassidy ed., Reaching Just Settlements Reaching Just Settlements 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) 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. -  41  has been a growing awareness of a backlog of claims and of the need for a more definite native claims process.’ ° 6  In fact, prior to World War II, Aboriginal issues were not a priority for the federal govermnent and there was no process in place to deal with Aboriginal land claims since the govermnent did not recognize Aboriginal rights. However, in the early 1970s, the policy discourse of the federal government on Aboriginal issues shifted in response to various events. First, the Supreme Court of Canada ruled in Calder that the Nisga’a had held Aboriginal title in pre-colonial times and then split evenly on the question of the continuing existence of that title. Second, the 1969 White Paper raised the political consciousness of Aboriginal groups and contributed in uniting First Nations across Canada. Third, as a result of these events, the general public was supporting the fair resolution of land claims. Fourth, the Trudeau government in 1973 was in a precarious situation of a minority government, with the opposition parties supporting the resolution of Aboriginal claims. Finally, there was an increased consciousness that the social and economic condition of the Indian communities conflicted with Canadian ideas of human rights and national prestige. Thus, the combined impact of these events forced the federal government to propose a new paradigm in the making of the Aboriginal agenda. However, this shift in the government’s policy discourse with respect to Aboriginal issues was reluctant and this would explain part of the difficulties which have arisen in the resolution of land claims. Many commentators have suggested that the changes in the Aboriginal agenda have been largely symbolic, illusory and rhetorical rather than substantive and real. In fact, what followed the initial reversal of the policy was 23 years of ad hoc and inconsistent governmental promises, proposals, and sometimes decisions aiming at developing processes and policies to resolve land claims. The commitment of the federal government in dealing with Aboriginal issues was and still is unreliable, for it tends to respond to pressing issues and current controversy rather than developing long-term policy. Aboriginal issues are particularly difficult to resolve since various parties with competing interests and ideologies are involved in the debate and push for their views to be represented in the national Aboriginal agenda. Moreover, other factors have caused problems in the development of adequate processes to resolve land claims. These include the fact that the federal  60 supra note 42, at 215-216. ‘ Daniel,  42  government has had difficulties in trying to coordinate federal and provincial/territorial interests in relation to Aboriginal issues. There is also the fact that government has found land claims negotiations difficult, both in terms of finding skilled negotiators able to handle polycentric problems and giving them an adequate mandate. The federal government is also concerned about the time and resources needed to settle land claims and the risk of major shifts in public attitudes. The commitment of the government has also been unreliable due to the fact that First Nations have been unable to play by federal rules in terms of cohesiveness, 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 Aboriginal issues has been mostly reactive rather than proactive. Land claims policies which recognize the need to negotiate land and resources issues with First Nations have been reluctantly put in place by the federal government in the early 1970s and by themselves, these policies cannot undo decades of inertia and assimilatiomst policies. Fundamental changes in the attitude towards Aboriginal issues will take time and will require a serious commitment of all the parties to generate a new relationship based on equality. In order to develop such a relationship, there will be a need for greater tolerance of cultural differences and a willingness to share the power with the First Nations of Canada. It is these same principles of recognition and empowerment which should guide the reform of the land claims process in Canada.  43  CHAPTER TWO  LITIGATION  Canadian literature regarding litigation in the context of Aboriginal land claims recognizes that Aboriginal people are generally in a disadvantaged position when going before the courts. ’ There are 16 many reasons for this: the lack of resources available to Aboriginal groups and the contrasting power and resources of governments, the delays of litigation which almost always work in favour of governments, the unfamiliarity of many judges with the area of Aboriginal law, the background and philosophy of many members of the judiciary and the serious consequences of a judicial decision in favour of the Aboriginal 62 Furthermore, the judicial system is unlikely to be an appropriate forum to define all aspects of a people.’ new relationship between Aboriginal societies and Euro-Canadian governments.’ 63 Referring to Aboriginal claims that were brought before the courts, one First Nation stated that these were “attempts to find aboriginal rights in the jurisprudence of the oppressor.” 64  Because of the several difficulties with the judicial system, the tendency has been in recent years to favor the process of negotiation to address the difficult issues involved in land claims. Despite this, the Courts continue to have a role to play in the resolution of the land question in Canada. The purpose of this chapter is therefore to outline the benefits and impediments of litigation with respect to Aboriginal land claims in order to improve the role of the courts in relation to these complex questions. In the first part of the chapter, I will examine the theories of adjudication. Part II will discuss the advantages and disadvantages of litigation as a mean to resolve Aboriginal claims. Finally, Part III will explore some possibilities 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 and Reactions to the James Bay and Northern Quebec Agreement” (1980) 1 Canadian Journal of Anthropology 159 at 163; Living Treaties: Lasting Agreements, supra note 8, at 75; Colvin, supra note 54, at 5; Daniel, supra note 42, at 239; R. Jamieson, Resolution of Issues Involving First Nations and Governments: An Ontario Experience (Draft prepared for the Special Committee on Native Justice of the Canadian Bar Association, 1988); Ciacca, supra note 126, at 557; K. Lysyk; “Approaches to Settlement of 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. 63 Agenda for Action, supra note 3, at 77-78. ‘ An 164 D. Elias, “The ‘Business’ of Self Reliance” in The Economic Bridge to Self Reliance Aboriginal Land Claims (Native Investment & Trade Association, Conference held on May 12-14, 1990) at 2.  44  Part I A.  Theories of Adjudication Definition  Adjudication involves a highly structured process by which one party forces another party to submit a dispute to compulsoiy determination by a neutral judge. Theories on the role of adjudication have been heavily influenced by the ideas of late law Professor Lon Fuller. 165 Fuller described the adjudicatory framework in the following way: (1) Adjudication is a process of decision that grants to the affected party a form of participation that consists in the opportunity to present proofs and reasoned arguments. (2) The litigant must therefore, if his participation is to be meaningful, assert some principle or principles by which his arguments are sound and his proofs relevant. (3) A naked demand is distinguished from a claim of right by the fact that the latter is a demand supported by a principle; likewise, a mere expression of displeasure or resentment is distinguished from an accusation by the fact that the latter rests upon the same principle. Hence, (4) issues tried before an adjudicator tend to become claims of right or accusations of fault. 166  B.  Limitations of Adjudication  1.  Polycentric Problems  Fuller’s work has focused on the limits of adjudication, trying to identify disputes which are inherently unsuited to the adjudicative process. He suggested that “polycentric” problems, which have complex interconnected issues which exceed the ability of a rational, principle-based approach, should not be resolved through the “all or nothing” approach of adjudication.’ 67  2.  Relationship between the Parties  Another limit of adjudication concerns the relationship between disputants.’ 68 Fuller was of the opinion that the institutional framework of adjudication, with its orientation towards proofs and reasoned arguments, tends to convert all submissions into claims of right and wrong. He stated that “certain kinds  165  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: West Publishing, 1992) at 6. NOTE: Polycentric problems will be discussed in more details in Chapter Three under the title “Nature of the Claims”. 168 Colvin, supra note 54, at 10; Fuller, supra note 165, at 368-370.  45  of human relations are not appropriate raw material for a process of decision that is institutionally committed to acting on the basis of reasoned argument.” 69 Accordingly, he submitted that adjudication is not just inappropriate but is in fact counter-productive when disputants are engaged in an on-going relationship. He stated that [i]f we regard a formal definition of rights and wrongs as a nearly inevitable product of the adjudicative process, we can arrive at what is perhaps the most significant of all limitations on the proper province of adjudication. Adjudication is not a proper form of social ordering in those areas where the effectiveness of human association would be destroyed if it were organized about formally defined “rights” and “wrongs”.’ ° 7  Thus, he suggested that the adversary proceedings in adjudication are antithetical to the goal of Experience has also demonstrated that the focus on confrontation in adjudication encourages the parties to see disputes as a win or lose proposition, in which they are “adversaries” and communicate 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 problem72 Moreover, in the context of Aboriginal land claims, it has been noted by a committee of the solving.” Canadian Bar Association that “...in dealing with matters so fundamental as cultural survival and nationhood, imposed solutions are not viable and cannot last.” 73  Sociological theorists of dispute resolution have also focused upon the extent to which disputants engaged in on-going cooperative relationships should be protected from the potentially disruptive consequence of adjudication: Common human experience teaches us that the consequence, on the future relationship of the parties 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 the dispute, both must leave the dispute-settlement procedures without too much of a sense of grievance. If, however, the parties need not live together thereafter, then it is irrelevant whether either of the parties continues to be antagonistic to the other after the proceedings.’ 74 169  Fuller, supra note 165, at 371. 170 at 370-371. 1bid, 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 Their Effects” (1992) 11 Stanford Environmental Law Journal 151 at 168. AnAgendaforAction, supra note 3, at 71. 173 W.J. Chambliss and R.B. Seidman, Law, Order and Power (Reading, Mass.: Addison-Wesley, 1971) at 29.  46  Therefore, 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 a continuing relationship. I will now examine how these theories apply in the context of Aboriginal land claims.  Part II  Adjudication in the Context of Aboriginal Land Claims  Prior 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. The government 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, inevitably imposed its decision on the weaker of the parties.’ 75  After the federal government’s policy announcement in 1973 that it would enter into negotiations with Aboriginal groups to settle comprehensive claims where rights of traditional use and occupancy had neither been extinguished by treaty nor superseded by law, Aboriginal land claims started to be mainly negotiated. However, land claims continue to be brought to the courts by claimants for a variety of reasons. For instance, the courts are the only option for Aboriginal claimants when governments are unwilling to negotiate’ 76 or when Aboriginal claimants are dissatisfied with the progress of the negotiations. Professor Douglas Sanders reports that the following goals have been pursued in Aboriginal litigation: Litigation over specific rights was aimed at winning recognition of those rights. Sometimes litigation attempted to hold the status quo by blocking some development project. This was the initial goal of the James Bay litigation in the early 1970s. But cases like Calder, Coe, Taxed Mountains, and Delgamuukw were aimed at changing government policy, opening up negotiations, getting a new deal.’ 77  J.S. Frideres, “Native Claims and Settlement in Yukon” in Ponting ed., Arduous Journey: Canadian Indians 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 Institute for Research on Public Policy, 1991) at 6. ‘ Sanders (1992), supra note 158. at 281.  47  In August 1988, a special committee of the Canadian Bar Association filed a report noting that Aboriginal people had not fared well within the structure of the judicial system since Confederation.’ 78 The report concluded that the Canadian legal system had not responded well in the past to Aboriginal issues and that the problem was ongoing.’ 79 The CBA wrote that First Nations are seriously disadvantaged “in that they are effectively asking the courts to overturn 100 years of legal precedent that involved an entirely different view of Canadian history.” ° I therefore suggest to begin by exploring the disadvantages of litigation in 8 the resolution of Aboriginal land claims.  A.  Limitations of Litigation  1.  Cultural Framework of the Canadian Courts  1.1  Colonial Sovereignty  Our relationships with Aboriginal people have been characterized by a failure to understand, or an unwillingness to accommodate Aboriginal traditional cultures.’ ’ Thus, it has been suggested that “...in 8 approaching the courts to determine claims, Aboriginal people essentially submit themselves to a foreign cultural framework, one which enjoys self-professed legitimacy and supremacy.” 82 As stated by Peter Kuichyski, Aboriginal people have painstakingly had to learn the process of addressing the courts in order to begin 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 by the courts. Instead, the dominant cultural form presents itself as Truth: bibles are produced, spectacles are ...  ...  This was clearly the feeling of the Gitksan and Wet’suwet’en People in bringing their case before the courts. According to Satsan, he and his people “were entering a game in which we had no involvement  AnAgendaforAction, 7 ‘ 8 supra note 3 at 11. 79 at 25. ‘ 1b1d, 80 ‘ 1b1d 181 P.R Grose, “Towards a Better Tomorrow: A Perspective on Dispute Resolution in Aboriginal Communities in Queensland” (1994) 5 Australian Dispute Resolution Journal 28 at 35. 182 McCallum, supra note 13, at 10. ‘ Kulchyski, supra note 20, at 2.  48  whatsoever with the putting together of that game, the making up of the rules, in the appointment of referees and umpires.” 84  The courts in Canada, as in other colonized societies, rests upon a presumption of colonial sovereignty.’ 85 Canadian law presumes that the Crown has, at some point in history, effectively asserted sovereignty over Aboriginal peoples and the legitimacy of this assumption is rarely challenged by the courts.’ 86 According to Brian Slattery, it is clear that Anglo-Canadian law “treats the question of when and how the Crown gained sovereignty over Canadian territories in a somewhat artificial and self-serving manner.” 87 Menno Boldt and J. Anthony Long contend that courts in colonial societies have generally decided cases of Aboriginal rights in the interest of the dominant society rather than based on fundamental principles of 88 They are of the opinion that colonial governments were “[m]otivated by racism, greed, and lust justice.’ for land” and deliberately disregarded the British and international laws which protected Aboriginal rights. They then add that: The Canadian courts, like those of New Zealand, Australia, and the United States, act as handmaidens of the government, consistently giving precedence to the legitimacy and validity of government power, policies, and actions... The courts made aboriginal rights subject to the self-interest of the dominant group; they subordinated 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 the aboriginal peoples of their rights and self-government.’ 89  The 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, bias spills onto the pages of legal decisions from a contextualized, politically hued stream. The 184  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 the Borders 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. 89 ‘ Jbid  49  ideological undertones ofjudicial decisions are revealed when viewed through the eyes of communities that are disadvantages by the exercise of legal  John Ciacca also believes that  “. .  .in interpreting the laws the courts generally reflect the mores of  ’ Finally, James Youngblood Henderson describes the way in which western courts have 9 society.” circumscribed 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 lawless way, their courts save face by classifying oppression as justice or confiscation as a political question. Either way, they remove the cause of action from their jurisdiction. In its approach to the rights of native peoples the law becomes tyranny at worst and an ineffective apologist at 92 best.’ ...  1.2  Judicial Ethnocentrism and Bias  The term “ethnocentrism” refers to the belief that “one’s culture represents the natural and best way to do things and that it is, therefore, appropriate to evaluate other cultures on the basis of the precepts of one’s  93 Judicial ethnocentrism is therefore an example of non-neutral or biased judicial behaviour own.” because it involves the use of stereotypes which classify on the basis of presumptions and generalizations defined by the dominant group.’ 94 In the context of Aboriginal claims, judicial ethnocentrism can be evidenced by the burden put on Aboriginal claimants to demonstrate that their law at the time of contact was recognizable in British eyes and therefore reconcilable with British legal tradition.’ 95 According to Asch and Bell: .it has always been easier for British Courts to recognize ongoing legal rights in newly acquired territories where the local inhabitants had traditions and values similar to their own. With colonial expansion, the British acquired territories whose inhabitants had traditions, values and a lifestyle 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 Royal Proclamation (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 Long eds., The Quest for Justice: Aboriginal People and Aboriginal Rights (Toronto: University of Toronto Press, 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.  50  address these differences in a relativistic sense, but rather, following the dictum of ethnocentrism, perceived them as indications of inferiority.’ 96  One example ofjudicial ethnocentrism is illustrated by a comment of Chief Justice Davey in the British Columbia Court of Appeal decision, in Calder, in which he calls the Nisga’a nation “a very primitive people with few of the institutions of civilized society, and none at all of our notions of private 97 A similar comment was made by Chief Justice McEachern in Delgamuukw: “The plaintiff’s property”.’ ancestors had no written language, no horses or wheeled vehicles, slavery and starvation was not uncommon, 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 McEachern stated that the plaintiffs should understand that “...although the aboriginal laws which they recognize could be relevant on some issues, I must decide this case only according to what they call the ‘white man’s According to Professor Brian Slattery, this last statement implies that the laws of one racial group occupy a privileged position in Canada and apply to Aboriginal people to their disadvantage and to the exclusion of their own laws. ° Many authors have suggested that McEachern C.J. relied upon an 20 outdated 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 European settlers, and that there would be an inevitable move away from traditional practices towards acculturation and assimilation into the dominant Western society. 202 Professor Paul Tennant, in examining the decision in Delgamuukw was of the opinion that in that case, the particular perceptions, assumptions, and values of  196  Ibid (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: The Aboriginal Peoples of Canada” (August 30, 1995) [unpublished] at 22. 99 at 201. ‘ Ibid, 200 B. Slattery, “The Legal Basis of Aboriginal Title” 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) 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 in Delgamuukw v. B.C.” (1992) 95 B.C. Studies 25 at 31; M. Asch, “Errors in Delgamuukw: An Anthropological 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. 197  51  the judge were arguably more important and influential than the facts and even the established points of 203 He explains that: law. 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 of itself, the majority. In these circumstances the members of the dominant group will often be unaware of the possibility that their deeply held beliefs about their own group and about the minorities are founded less on any objective reality than upon their own group’s desire to protect its own dominance. In these circumstances the judiciary will be the majority’s judiciary and may even provide the front line defense for majority interests. 204  The decision in Delgamuukw was also criticized as being ethnocentric for its judicial treatment of the anthropological evidence and the testimony of Aboriginal witnesses. Based on the decision in R. v. 205 where the Supreme Court of Canada held that oral history based on successive declarations by Simon persons now deceased was admissible since it could not otherwise be proved, McEachern J. admitted oral evidence in Delgamuukw which related to origin and territory. 206 However, McEachern 3. placed very little weight upon that evidence, concluding that it represented “belief’ rather that “fact” and that it was anecdotal, instead of historically entrenched in written form. 207 Anthropologists have argued that this treatment of evidence is subjective and ethnocentric, since it fails to recognize that Aboriginal culture was traditionally orally based. Patricia Monture points out that “[t]he courts have tended to simplil’ the process of oral history and treat it as something less advanced than recording history on paper.” 208 After reviewing the difficulties arising over the reception of oral history in cases involving treaties and land claims, Delia Opekokew concluded that the Canadian judicial system, in its application of technical rules of evidence, construction and procedure, has created an ethnocentric bias against Aboriginal witnesses. 209 Thus, the rules of evidence and particularly the application of these rules by the courts have not always 203  P. Tennant, “The Place of Delgamuukw in British Columbia’s History and Vice Versa”, 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) 73 at 74. 204 Ibid at 75. 205 (1985), 24 D.L.R. (4th) 390 (S.C.C.); [1985] 2 S.C.R. 387. RV Storrow and M.J. Bryant, “Litigating Aboriginal Rights Cases” in F. Cassidy ed. in Aboriginal 206 Title 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., Canadian Perspectives 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 Carter eds. in Continuing Poundmaker and Riel ‘s Quest (Saskatoon: Punch Publishing, 1994) at 192-205. -  52  recognized Aboriginal values and traditions, making it more difficult for Aboriginal claimants to adduce evidence of their rights.  Many commentators have noted that the views which are reflected in the Delgamuukw decision do not stand outside the dominant historical and cultural Canadians traditions. For instance, professor Douglas Sanders writes that “[i]t would be wrong to  ...  dismiss the trial decision in Delgamuukw as an isolated  ° Michael Asch also notes that “...the Delgamuukw judgment is not a 21 replay of 19th century racism.” rogue decision. It does not stand outside of Canadian legal precedent and tradition. Rather, this judgment is in fact consonant with, if not fostered by, the tradition.” ’ Finally, professor Robin Ridington 21 contends that “[i]n Delgamuukw, Mr. Justice McEachem revealed a world view and an ideology appropriate to a culture of colonial expansion and domination.” 212 Thus, the views expressed by McEachern J. appear to be a resurgence of an old tradition which has been suppressed from the political and legal discourse on Aboriginal issues for some time now. What is uncommon about Justice McEachern’s comments in Delgamuukw is therefore not so much the fact that these kind of ideas still exist 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 most of the judges, to whom Aboriginal people’s values and rights are foreign, can sometimes constitute an obstacle for Aboriginal parties in litigation. 213 In fact, the judges hearing Aboriginal cases have generally been drawn from the white Euro-Canadian society and their status as impartial third-parties is often 214 As stated by Rosalie Siblerman Abella, questioned. [e]very decision maker who walks into a courtroom to hear a case is armed not only with relevant legal texts, but with a set of values, experiences and assumptions that are thoroughly embedded.  210  Sanders (Aug. 30, 1995), supra note 198, at 33. Asch (1992), supra note 201, at 238. 212 R. Ridington, “Fieldwork in Courtroom 53: A Witness to Delgamuukw” 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) 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. 211  53  The decision-making process takes place in cultural context, and that context may require a 215 degree of ‘imperturbable disinterestedness’ of which not all are consistently capable.  Therefore, as suggested by MacGuigan in the text Equality and Judicial Neutrality, the role ofjudges cannot be merely neutral since it is an activity with a view to achieving the goals of the society in which 216 the judge lives.  These examples serve to illustrate that the judicial system operates within the dominant cultural framework. It must however be noted that since 1973, there has been an increasing recognition by the courts of Aboriginal rights but this movement is slow and remains limited in scope and uneven in application as the trial decision in Delgamuukw has demonstrated. Aboriginal issues continue to be decided within the legal principles and precedents developed by and applicable to the Canadian legal system. The courts apply principles of western law and justice to Aboriginal questions and the judicial 217 For instance, most judges come from the decisions are a reflection of the Canadian justice system. dominant culture, the language of the court proceedings is the language of the dominant culture, the substantive 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 generally do not recognize the Aboriginal cultural framework, values, laws and interpretation of history. This constitutes a considerable disadvantage for First Nations when their only option in terms of dispute resolution is to bring their claims before the very entity that denies the validity of their own reality.  2.  215  Procedural and Substantive Issues  R. Silberman Abella, “The Dynamic Nature of Equality” in S.L. Martin & K.E.Mahoney eds., Equality and 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 attitude toward land, and rather than attempt an understanding, they simply imposed the common law system on everyone, 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, because of 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.  54  2.1  Nature of the Claims  The field of comprehensive claims presents serious problems for the traditional court system. The likely 218 These claims are complexity of any terms of settlement make such claims highly polycentric. polycentric because they are multifaceted and each aspect of the claim is interrelated with every other aspect. As mentioned in part I of this chapter, Fuller is of the opinion that polycentric problems, with many interacting points of influence, are unsuited to resolution by adjudication. Adjudication is more effective when a single issue can be isolated and reasoned argument can be directed exclusively to it. As stated by Colvin, “[w]hen any decision on one matter has complex repercussions with respect to other matters, proceeding by proof and reasoned argument, with full participation of all affected parties, can 219 become unmanageable.”  However, 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 by  Fuller, “[i]t is a question of knowing when the polycentric elements have become so significant and predominant that the proper limits of adjudication have been reached.” ° Therefore, some comprehensive 22 claims could still be successfully handled by the courts under certain circumstances. This assessment should be made in light of all the other factors which affect the handling of such cases by the courts.  2.2  Jurisdiction, Procedure and Remedies  The courts do not have the jurisdiction and the procedural ability to deal effectively with comprehensive claims, which usually involve complex ideological, historical, social and political issues. This has been widely recognized by the courts, Aboriginal groups, governments and commentators.  218  Colvin, supra note 54, at 15. 219 at 10; Fuller, supra note 165, at 401-403. 1bid, 220 Fuller supra note 165, at 398.  55  The Supreme Court of Canada said, on some occasions, that it considers the issue of Aboriginal land rights to be a mix of law and politics. ’ Chief Justice McEachern, in his trial judgment in Delgamuukw 22 recognizes the limitations of the judicial approach in relation to Aboriginal claims: The parties have concentrated for too long on legal and constitutional questions such as ownership, sovereignty, and “rights”, which are fascinating legal concepts. Important as these questions are, answers to legal questions will not solve the underlying social and economic problems which have disadvantaged Indian peoples from the earliest times. 222  Aboriginal objections to litigation have also stressed matters ofjurisdiction. For instance, the Association of Iroquois and Allied Indians have stated that  “. .  .the courts decide only legal issues meaning moral and  political issues are disregarded.” 223 Governments have also expressed the fear of a judicial outcome which does not take account of the broader political and social issues raised by a claim. 224  One 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 factors involved in Aboriginal rights cases: When you are discussing native claims, you are dealing with a wide spectrum of issues encompassing: the cultural rights of a minority and the economic benefits which should be provided to a disadvantaged minority. You cannot avoid becoming involved in a discussion of the impact of our society on the natives and the effects on them, for example, of our administration ofjustice. You must seek out methods to ensure the participation of a people in the government process. You are called upon to find ways and means of assuring that a group with a different culture background can thrive and flourish in our society. Of course, one must also be constantly aware of the attitudes and demands of the non-natives in the territories which are the subject of the settlement. 226  221  See Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313; Kruger and Manuel v. The Queen, [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 (An Infonnation Paper) (Walpole Island, Ont.: March 1980) at 7. 224 Colvin, supra note 54, at 15. 225 Ciacca, supra note 126, at 557. 1bid, at 561. 226  56  Therefore, there seems to be a clear consensus among all these groups that the judicial forum is not the most appropriate means to resolve comprehensive claims since the courts do not have the jurisdiction to deal 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 interfere with the substantive issues or merits of the case. There are instances in Canadian history where it could be argued that Aboriginal claimants have lost their claims on procedural points. One well known example is the Calder decision where one judge refused to rule on the substance of the case because the plaintiffs did not have a petition of right or fiat to sue the Crown. 227  The federal govermrient also reserves the right to use any technical defences available to it which include reliance on statutes of limitation, the immunity of the Crown against civil actions with respect to injunctions 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 the claimants. Twenty years ago there was little access to documents, no funding and no body of law to sustain 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 both unfair and counterproductive in that it fails to deal with the underlying causes of the First Nation 230 grievances.  Finally, the judicial system does not provide the full range of remedial powers which would be necessary to compensate valid comprehensive claims and to address the ongoing relationship between Aboriginal and non-Aboriginal societies. As stated by Lloyd Barber, “while some claims may be recognized by the 227  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, 303 and 313. 228 (1990), supra note 39, at 60; See also W. Henderson, “Litigating Native Claims”, (1985) 19 Law Society of Upper Canada Gazette 174 at 191. 229 ICO (1990), supra note 39, at 61. 230 Ibid See also An Agenda for Action, supra note 3, at 28.  57  courts, legal remedies may not exist.” ’ In fact, the power of the courts to redress grievances is limited 23 and thus, “a court’s judgment cannot normally require parties to work together to co-manage resources or to share responsibilities, nor can it dictate, for example, that a First Nation receive as an alternative, less populated lands as part of a land claim settlement.” 232 In practice, the remedial powers of the courts in dealing with Aboriginal land disputes include to render a decision on rights which may lead to negotiation, to award monetary damages payable to the First Nation based on the court’s assessment, or to give an order directing the government to perform its duty, or directing or preventing some course of action.  2.3  Aboriginal Participation  In the litigation process, the role of First Nations might sometimes be limited. In fact, the litigation process relies on representation through lawyers and on the testimony of expert witnesses, thus limiting considerably the direct participation of Aboriginal people in the resolution of their claims. First Nations generally participate in litigation as witnesses, but without any control over the final decision. It is also important to mention that even legal representation has not always been easily available for Aboriginal groups. For almost a century, Aboriginal people were often not represented in important cases which affected their rights. For instance, in St. Catherine ‘s Milling Co. Ltd. v. The Queen, 233 the Privy Council was asked to decide whether the Indians surrendered timber rights to the federal or provincial government under a treaty concluded between the Crown and a First Nation in Ontario. The Aboriginal nation involved in this case was not even represented by legal counsel and the Privy Council rendered a decision which would have implications for Aboriginal rights for over a century and became a precedent upon which subsequent judgments have been based. 234  231  Commissioner, supra note 67, at 39. 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 Judicial Neutrality (Toronto: Carswell, 1987) 358 at 364. 232  58  Moreover, as mentioned in Chapter One, from 1927 until 1951, there was a statutory provision in the Indian Act which had the effect of prohibiting Indians from retaining legal assistance on their own when they asserted claims. 235 Finally, until 1974, some provinces still had the requirement that Aboriginal claimants needed to obtain a petition of rights from the Crown to institute proceedings against the 236 Crown.  2.4  Burden of Proof and Evidence  In Canada, the system of Aboriginal title litigation places the onus on Aboriginal groups to prove the existence of a valid Aboriginal title. According to Louise Mandell, this decision is based on the assumption that the Crown’s ‘discovery’ of this continent gave it rights to the soil. Alternatively, the assertion is that the Crown conquered the Aboriginal nations by exercising jurisdiction over the 237 The Crown then has the burden of proving that these rights were legally terminated before territoiy. the recognition and affirmation of Aboriginal rights in the Canadian Constitution. 238 The burden of proof on Aboriginal plaintiffs is problematic in two ways: the content of what must be proven and the method by which it is to be proved. 239  In order to win a land claim, Aboriginal groups must be able to bear an enormous burden of proof. In the Canadian history, there has evolved a set of tests that claimants of Aboriginal rights must meet in order to  235  Section 141, Indian Act, R.S.C. 1927 c. 98 (originally enacted in S.C. 1927 c.32 s.6).; See also An Agenda for Action, supra note 3, at 10. 236 NOTE: Legislation governing this issue in Canada was enacted at federal level and in each of the provinces 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 the courts have said that the extent of Indian title depends upon the degree to which the Nation traditionally possessed 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 the federal government to terminate or limit Aboriginal rights by legislation or regulation after 1982 must meet a justification test. Once Aboriginal claimants prove the existence of a right and interference with it by legislation, the onus then shifts to the government to justify its actions. The Crown must prove a valid legislative objective and must further prove that the objective was attained in such a way as to uphold the honour and fiduciary obligation of the Crown. 239 Asch and Bell, supra note 186, at 521.  59  make their case. These tests have been stated by judges in a number of ways, but the most succinct expression of them was provided by Mr. Justice Mahoney of the Federal Court in Baker Lake. ° The 24 elements 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 organized society occupied the specific territory over which they assert the Aboriginal title; (3) that the occupation was to the exclusion of other organized societies; and (4) finally, that the occupation was an established fact at the time sovereignty was asserted by England. ’ Since 1980, the Baker Lake test has been applied, 24 modified and interpreted differently depending upon the particular matter being heard. 242 There are however serious problems with the enormous amount of data that must be collected to support land 243 As stated by Elias: claims. .the tests are becoming increasingly particular, to the point that if they are elaborated much further, 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 science comprehension. It is difficult to imagine what resources are available that could be used to reconstruct native practices at the time of the Royal Proclamation of] 763, and then to show that those practices were unique to the Temagami people, especially at the level of definition and detail demanded by the court. 244  Further, anthropologists have argued that the test set out in Baker Lake is inherently ethnocentric because it implies, among other things, that there are some cultures which are so innately primitive that they cannot even be described as “organized”, 245 Anthropologists therefore accuse courts of being steeped in an ethnocentric legal tradition, and criticize the courts for being apparently unable to develop new legal tests and attitudes which would embrace the notion of cultural relativism. 246  240  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 Role of the Social Sciences in the Legal and Political Resolution of Land Claims and Questions of Aboriginal Rights” (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 more on 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 Aboriginal Claims Litigation” (Victoria: December 4, 1995) [unpublished]. -  60  The second difficulty relates to the fact that Aboriginal plaintiffs must deal with a judicial system which is not designed to handle crucial evidence which is generally of an historical and anthropological kind. 247 Given the volume and nature of the evidence required to prove historical fact and to meet the tests for title discussed above, special rules of evidence have been developed to assist the courts in the fact-finding process. Exceptions have been created to the hearsay rule to allow the admission of oral history passed from generation to generation and rules on opinion evidence have been relaxed to allow the opinions of social scientists to be heard, Thus, the difficulty faced by Aboriginal claimants does not concern the admissibility 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 history was faulty in that it was influenced by recent political trends and thus it was to be given little or no probative value. Concerns relating to the frailty of human memory, the accuracy of the oral record, and the role of culture (as distinct from historical fact) in the formulation of oral histories create a presumption that oral histories reflect subjective belief or “a romantic view of their history” which is not “literally true”. Quoting conflicting academic opinion on the accuracy of oral traditions and the influence of non Indian narratives, McEachern C.J. concluded that oral history may only be usefhl “to fill in the gaps’ left 248 at the end of a purely scientific investigation.”  Moreover, there has also been extensive discussion concerning the acceptance of social scientists, such as anthropologists, as expert witnesses. Although the Supreme Court of Canada in Calder and Sparrow appeared to accept the testimony of anthropologists, other decisions, including the trial decision in Delgamuukw, 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 many  years that they have lost their objectivity..  247  ,,249  Similarly, McEachern C.J. in Delgarnuukw said that  Colvin, supra note 54, at 15. Asch and Bell, supra note 186, at 540. A..G (Ontario) v. Bear Island Foundation (1984), 15 D.L.R. (4th) 321 (Ont. H.C.) at 358. 249 248  61  anthropologist Dr. Mills was “...very much on the side of the Plaintiffs” ; he discounted Mr. Brody’s 250 testimony on the ground that he did not qualify as being sufficiently objective 251 and Dr. Daly was discredited due to his adherence to the code of ethics of the American Anthropological Association which states 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 be influenced by familiar rules of evidence and the rationale for those rules, which render new forms of evidence suspect.” 253  Thus, 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 Aboriginal land claims which might otherwise be successful in court will fail on the basis of difficulties in dealing with evidence. The tests developed by the courts are obviously based on non-Aboriginal, colonial values and standards. The vast amount of evidence, the nature of the evidence and the rules of evidence create practical difficulties. Further, the courts have, on some occasions, suggested that anthropologists lack objectivity by the very nature of their profession, and that they will be unavoidably biased in favour of the subjects of their research. This distrust of anthropological witnesses represents a significant obstacle to the application of anthropological findings in Aboriginal claims litigation. 254  2.5  Costs and Delays  Generally, the courts have been a slow and expensive means of dealing with Aboriginal land claims. For instance, the Tlingit-Haida litigation in Alaska took over 33 years to resolve, 255 the Calder case took four years, Sparrow took six and the trial in Delgamuukw lasted 374 days. 256  250  (1991), 79 D.L.R. (4th) 185 (B.C.S.C.) at 51. D. Cuihane, “Adding Insult to Injury: Her Majesty’s Loyal Anthropologist” (1992) 95 B.C. Studies 66 at 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. 251  62  The costs of those lengthy actions can be prohibitive, and few bands or Aboriginal organizations are in a position to provide the necessary financial support. 257 Research funds provided to bands and Aboriginal organizations by the Department of Indian and Northern Affairs cannot be used for litigation without the consent of the Minister. However, since the government’s land claims policy is to encourage negotiation rather than litigation, it might be difficult to receive such approval. 258 Furthermore, when the federal government simply refuses to fund Aboriginal litigants, it increases traumatically the pressure on the Aboriginal groups to accept the federal position in negotiation. 259  It must however be noted that the experience over the last 15 years suggests that the relative costs and delays of litigation are comparable to those of negotiation. Both processes are costly and time-consuming and these factors might become irrelevant in choosing between them. ° 26  2.6  Lack of Control and Compliance  In general, using the courts to achieve the resolution of a dispute is a highly risky adventure. “Unlike a negotiation process, in which both sides are assured of an outcome that will meet some of their needs, the court process has the potential to create clear winners and losers.” 2 Therefore, there is a serious risk that the parties will be bound by an imposed decision which does not address the underlying needs of the parties 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 policy  257  NOTE: The Delgarnuukw case is estimated to have cost $25 million to bring to trial only. Asch and Bell, supra note 186, at 533. 258 Daniel, supra note 42, at 238. 259 O’Reilly, supra note 213, at 41. 260 Agenda for Action, supra note 3, at 80. 261 A. Murray, supra note 80, at 58.  63  implications.” An example of this attitude on the part of a provincial government is the case of the Micmac Indians of Nova Scotia. The Micmac Indians had signed treaties with colonial powers in the 1700s which ensured that both parties could pursue their respective economic activities without interference from governments. However, after many decades of non-respect of their treaties and in light of the aggressive enforcement of provincial fishing and gaming laws, the Micmacs finally decided to go to court to reassert the validity of their treaties: In 1985, the Supreme Court of Canada issued a landmark ruling stating that the Micmacs’ treaty rights to hunt and fish were still valid. Despite this ruling from the country’s highest court, the actions 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 establish the law, the Micmacs are now repeating the process to get the government to obey it. After the Nova Scotia Supreme Court Appeals Division threw out subsequent charges for illegal salmon fishing in 1990, the provincial government finally threw in the towel and agreed to stop its prosecutions; but not before the Native organizations were left “financially crippled.” 262 -  2.7  Injunction  The courts’ attitude towards granting injunctive relief in Aboriginal land claims has been mixed. In determining which party would likely suffer the greater inconvenience if the applicant succeeded in its application for an interim injunction, the courts have not always understood and thus given much weight to the arguments presented by Aboriginal groups. For example, in the Lubicon Lake case, the Lubicon Lake Aboriginal people made an application for an interim injunction to stop oil and gas development from occurring on their traditional lands, as it would destroy their homelands and livelihoods. 263 Justice Forsyth wrote in his judgment: .1 am more than satisfied that the respondents would suffer large and significant damages if injunctive relief in any of the forms sought by the applicants were granted. Furthermore, the respondents would suffer a loss of competitive position in the industry vis-â-vis the position of other companies not parties to this action. That loss coupled with the admitted inability of the applicants to give a meaningful undertaking to the court as to damages reinforces my decision that injunctive relief in this case is not appropriate. 264 ...  262 at 62. Jbid, 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.  64  According to Ryan and Ominayal.c, the comment on the inability to pay of the Lubicon people reflects the judicial bias against Aboriginal people. The authors contend that the poor cannot look to the courts for injunctive relief against the rich and as a result there exists not only a racial bias but a class one as well. 265  Another example of an Aboriginal group seeking an injunctive relief is the case of the James Bay hydroelectric project where the Quebec Superior Court ordered the halt of the project. However, Quebec officials argued that the injunction costs them one million dollars a day and the Court of Appeal decided to lift the injunction pending a full hearing. 266 The Quebec Court of Appeal did not believe the evidence of the Aboriginal plaintiffs and the environmental consequences predicted for the project by the scientific witnesses of the plaintiffs, even though the Court of Appeal did not hear any of the witnesses. According to James O’Reilly, “[t]his is a tough obstacle for aboriginal litigants to overcome because it is based fundamentally on judicial predisposition.” 267  In 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 over Aboriginal title. Mr. Justice Gibbs of the British Columbia Supreme Court rejected the First Nation arguments, “noting the potential impact of similar injunctions on other land in the province.” 269 However, this decision went to the Court of Appeal where injunctions were granted against both the First Nation 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 tenure that is the basis for the huge investment that has been and is being made. I am not influenced by the argument. Logging will continue on this coast even is some parts are found to be subject to certain Indian rights. It may be that in some areas the Indians will be entitled to share in one way 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. 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. 266  65  There is a problem about tenure that has not been attended to in the past. We are being asked to ignore 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 prevent logging and other activities pending resolution of Aboriginal land claims. 272 The problem with judicial findings based upon the “balance of inconvenience” is that they are generally based upon subjective evaluations of what is important and of value. The courts sometimes equate inconvenience with financial loss. However, for Aboriginal people the loss of their land involves not only a loss of income but a loss of 273 The focus of the courts on financial loss reflects the values and priorities of nona way of life. Aboriginal cultural priorities at the expense of those of Aboriginal claimants.  B.  Benefits of Litigation  Despite the serious difficulties with the litigation process, there are clearly situations where the judicial system is the chosen solution to resolve comprehensive claims, for instance when the parties are unable to reach agreement through negotiation, or simply when the disagreement on some issues is so fundamental and so divisive that compromise is impossible and less authoritative decisions unacceptable. 274 I therefore propose to explore some of the advantages of litigation in order to assess the role which the courts currently play and could play in the future in dealing with Aboriginal land claims.  1.  Strategic Advantages  1.1  Binding Precedents  There is a clear advantage in bringing a land claim through the court system if it has the potential of being a favorable precedent-setting case. The principal benefit is that a favourable decision of the court  271 at 73. 1bid, 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.  66  will become binding precedent upon other courts in the jurisdiction. 275 Even if the decision is not favourable to the claimants, the judgment may nevertheless contain valuable obiter dicta which can be argued in subsequent cases, and which could be influential outside the courts. 276  1.2  Changes in Government’s Claims Policies  Judicial decisions have also the potential of influencing the government’s land claims policies. According to Peter Douglas Elias, “as questions of law are settled by the courts, their determination are reluctantly incorporated into government policy.”  277  In fact, prior to the Calder decision, the federal government  policy on Aboriginal title was to deny its existence. The decision in Calder forced the government to reassess its position and on August 8, 1973, it issued the first ‘statement of policy’ regarding Aboriginal lands in which it agreed to negotiate land claims with certain Aboriginal groups in Canada.  1.3  Impetus for Negotiation  Building favourable precedents can also have a significant impact on the negotiation process. The courts can play a significant role in defining Aboriginal rights in a manner as to discredit the most extreme negotiating positions of both sides and laying the necessary foundation for the initiation of effective and realistic discussion. 278 As stated by Louise Mandell, “courts could have a role in building the foundation for meaningful political negotiations between the Indian Nations and the Crown.” 279 Thus, litigation can provide 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 High Court overturned 150 years of precedent which had consistently denied the application of Aboriginal title in Australia. The High Court’s decision is now a binding precedent upon all inferior courts in that jurisdiction. McCallum supra note 13, at 44. 276 277 Elias (1989), supra note 241, at 3. AnAgendaforAction, supra note 3, at 25 and 84-85; Daniel, supra note 42, at 238. 278 279 Mandell (1987), supra note 234, 358 at 365; See also R. Cavanagh and A. Sarat, “Thinking About Courts: Toward and Beyond a Jurisprudence of Judicial Competence” (1980) 14 Law and Soc. Rev. 371, at 373.  67  Sometimes, only the threat of an imposed decision can spur negotiation and compromise. ° For instance, 28 in the James Bay case, the Quebec government was initially unwilling to negotiate with the Crees and Inuit since it “...saw no threat from the indigenous people, no realistic means by which they could alter the course of action which the Quebec government was pursuing, and it therefore felt no need to give up anything it valued, no need to compromise. In short, it really was not ready to negotiate.” ’ However, a 28 few days only after the claimants were successful in their injunction before the Quebec Superior Court against the Quebec government, the province agreed to negotiate and proposed a settlement to the Cree and Inuit within two weeks. 282 Thus, the court action pushed the provincial government to negotiate and also provided significant leverage to the Aboriginal claimants in the negotiation process. Billy Diamond contends that if they had lost their case before the Superior Court of Quebec, “it is highly improbable that the Crees would have obtained anything near what we did through that agreement.” 283  As 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 taking Aboriginal issues seriously. According to Professor Douglas Sanders, The Gitksan and Wet’suwet’en were trying to get land claims negotiations going. Land claims had been stalled in British Columbia since 1973. The plaintiffs in both cases were seeking negotiations with governments. But Indians needed some recognition of rights some cards some status if negotiations had any chance. 284 -  -  -  This incentive to negotiate was also discussed by the Supreme Court of Canada in Sparrow, in which the judges referred to the Calder decision as a case in which the court system had played a positive role in bringing pressure on the federal government to move on the land question. 285 Courts therefore can be  280 at 394-411; See also Colvin, supra note 54, at 12; McCallum, supra note 13, at 45. 1bid, 281 Feit, supra note 161, at 161. 282 NOTE: The Quebec Superior Court order for an injunction was overturned on appeal. Feit, supra note 161, at 162; Sanders, (Aug. 15, 1995) supra note 241, at 8; B. Diamond, “Aboriginal Rights The James Bay Experience” in Boldt & Long eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (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. -  68  used, under the right circumstances, to provide bargaining leverage rather that acting as decision 286 makers.  2.  Public Sphere  2.1  Public Opinion  Another advantage for Aboriginal claimants in using the judicial system to resolve their claims is that the courts are public and attract the scrutiny and interest of the media and the general public. Favourable media coverage can be a more valuable means of provoking a political will to settle rather than pursuing before the courts. As stated by Fleras and Elliot, “the Canadian public has likewise been instrumental in exerting pressure for changes in the aboriginal agenda.” 287 An example of a successful attempt in gaining public support is with the Cree of James Bay which attracted substantial national and international media and public support for their claim in 1973  288  Another example of the influence of the media is the  inquiry on the Mackenzie Valley Pipeline where Tom Berger organized national media coverage of the community hearings held in First Nations villages. Berger supported Aboriginal claims, his report became a best seller and killed the pipeline project. 289  2.2  International Discourse  There is great opportunity for the courts in common law jurisdictions to influence each other in respect of Aboriginal title by drawing on each other’s precedents. For instance, such an exchange has been happening between Australia and Canada for some time now. Canadian case law is frequently referred to in Australian decisions and vice versa. As stated by Richard Bartlett “...Canadian and Australian courts can now engage in a valuable discourse in the area of law affecting Aboriginal peoples.” ° This could 29 have significant advantages for Aboriginal groups in Canada. For instance, if one decision is made in 286  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.  69  another common law jurisdiction which expands the concept of Aboriginal title and rights, this may ’ 29 encourage Canada to follow suit.  Part m  Appropriateness of Litigation  It is clear that there are circumstances where adjudication is an appropriate process to resolve Aboriginal land claims. Thus, the questions become: How to deal with problems such as judicial ethnocentrism and bias? When and in what circumstances should issues be left to the courts to decide? How can the courts play a more productive role?  A.  Cultural Relativism  There are no easy solutions to the problems of ethnocentric biases. May be the only way to combat the judicial ethnocentrism is to “make the different world view of the Indian Nations visible” 292 and to call for reasoning by the courts based on cultural relativism. Perhaps in this manner it would be possible to convince judges that “...all cultures are equally worthy of respect and must be understood on the basis of their own value systems.” 293 Judges hearing Aboriginal cases must “...hear evidence before them with an open mind so that they can understand another world view as it is understood by the Indians.” 294 The use of an analytical framework based on cultural relativism could increase “objectivity, empathy, and informed judgment” 295 which are essential qualities for anyone who wants to understand the lifestyle of another society. “The law should cease to interpret historical fact in a way which favours the perceptions of one culture over those of another.” 296 However, this would not totally eliminate the possibility of ethnocentric reasoning, since legal precedents, based upon the Baker Lake test, would probably still influence the reasoning of the judges. For this reason, some anthropologists have argued that the only  291  McCallum, supra note 13, at 49. 292 (1987), supra note 234, at 358. Mandell 293 Asch (1992), supra note 201, at 229. Asch and Bell, supra note 185, at 516. 294 Mandell (1987), supra note 234, at 365. D Bates and F. Plog, CulturalAnthropology, 3d ed. (New York: McGraw-Hill, 1990) at 17. 295 296 Asch and Bell, supra note 185, at 549.  70  way to eradicate ethnocentrism in Aboriginal claims cases would be to completely abandon the Baker Lake line of case law. 297  There is also no easy solution to the problems raised by legal treatments of oral history. One can only hope that the courts will adopt a consistent approach in accepting and relying upon oral history in Aboriginal cases. In fact, both the decisions in Simon and Sparrow suggest that “...where evidence regarding aboriginal rights is equivocal, but not unconvincing, the confines of the law should be extended to resolve evidentiary issues on the side of the aboriginals.” 298 At the same time, it is conceded by Aboriginal advocates that a strategic attempt should be made to separate “unorthodox” oral histories from those which are more likely to be accepted by the court as factual in 299 nature. Such an approach would lessen the likelihood of a judge dismissing the totality of oral evidence as being romanticized, or unreliable.  Finally, the courts should not dismiss the entire field of anthropology solely on the mistaken assumption that 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 being presented, 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 in the evaluation of ideas and testimony. 300  297 Asch (1992), supra note 201, at 240. B.D. Cox, “The Gitskan Wet’suwet’en as ‘Primitive’ Peoples Incapable of Holding Proprietary Interests: Chief Justice McEachern’s Underlying Premise in Delgamuukw” (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, at 22. 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 and procedural refonns have been suggested to enhance the perceived objectivity of anthropologists, such as pre-heanng anthropological discussions and intermediary anthropological boards. See B. Smith, supra note 246, at 16-17. -  71  The seriousness of these issues has led many to conclude that there exists no solution to these problems and thus, the courts are not an appropriate forum for the resolution of Aboriginal land claims. Lambert J.A. stated in his dissent in Delgamuukw: “I can think of no way around the problems in relation to historical and anthropological evidence except to try to avoid those problems by settling the existence and scope of rights by a process of negotiation, including the use of resources of mediation and commissions of ’ 30 inquiry.”  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 there -  must be concrete actions taken to resolve these critical issues. As suggested by the Indian Commission of Ontario, a first step could be that judges “...be given specialized training, perhaps sponsored by the Judicial Council of Canada in conjunction with Indian organizations, before being assigned to an Indian 302 Gerard V. LaForest also suggested that: case.” Legislation could remove many of the limitations of the courts as a mechanism for resolving claims. The laws of evidence could be modified in their application to claims, norms of honourable conduct associated with the Crown’s relation to Indians could be articulated in legislation, and defences respecting limitation periods (insofar as these may be relevant) could be 303 abolished.  The following discussion will explore other ways to circumvent some of the problems with the litigation approach.  B.  Combining Litigation and APR Mechanisms  Ideally, litigation should be employed in conjunction with other alternative dispute resolution mechanisms, as litigation and other dispute resolution processes are interrelated parts of a total process. 304  301  Delgamuukw v. The Queen (1993), 104 D.L.R. (4th) 470 (B.C.C.A.) at 697. 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 these rights are being thwarted or denied, the formulation of a claim, the initiation of discussions, recognition of the claim to the point where negotiations begin, or threat of court action or other consequences to provoke a negotiating response.” An Agenda for Action, supra note 3, at 78. 302  72  The court system can be used as part of a series of actions having for objective the resolution of the land question. “[R]esort to the Courts should be part of an overall strategy with alternative scenarios planned in 305 According to professor Douglas Sanders, litigation is a bad strategy only if it is seen in advance.” isolation from other actions and strategies. 306 This has also been recognized by Mr. Justice MacFarlane in MacMillan Bloedel v. Mullin: “I think it fair to say that, in the end, the public anticipates that the claims will be resolved by negotiation and by settlement. This judicial proceeding is but a small part of the whole of a process which will ultimately find its solution in a reasonable exchange between governments and the Indian nations.” 307  It 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 complex cases in an effort to circumvent the several obstacles of litigation. The traditional role of masters has involved 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 have created programs, known as Early Neutral Evaluation Programs (ENE), which are based on the use of special masters. These programs work in the following way: ENE session is a confidential, non-binding evaluation conference, attended by counsel, their clients, and a neutral member of the private bar who has substantial litigation experience, and who is an expert in the subject matter of the lawsuit. The ENE session takes place early in the pretrial period so that the parties can use what they learn during the session to make the case less expensive and time-consuming. 309  305 O’Reilly (1989), supra note 213, at 39. 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 other places, in the Northern District of California, the Eastern District of California, the Southern District of California, the Northern District of Indiana, the Eastern District of New York, the Northern District of Ohio, 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 Cooperative Publishing, 1993) at 1:11; W.D. Brazil, “Special Masters in Complex Cases: Extending the Judiciary or Reshaping Adjudication?” (1986) 53 Univ. of Chicago Law Review, No. 2, 394; W.D. Brazil, “A Close Look 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. 306  73  One of the most well-known case where a special master was appointed as settlement facilitator involved a dispute over the Great Lakes fishing rights. 310 This complex dispute over the fishery allocation plan in the Great Lakes had a twelve year litigation history and involved many parties including several tribes of Indians asserting rights based on nineteenth century treaties, the Secretary of the Interior, the Michigan Department of Natural Resources and the non-Indians fishing interests. The judge decided to appoint, in consultation with all parties, a special master after recognizing the following problems with the fishing rights 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) the issues were polycentric and the case had great political sensitivity. ’ Moreover, because of the continuing 31 relationship between the parties, it was estimated that any court-imposed solution would likely generate future conflict. Thus, the judge decided that these characteristics urged for an agreed settlement through a process of integrative negotiation. 312 The chosen special master was given the mandate to manage the pretrial case development within eight months and to facilitate settlement efforts. The master duties did not include ruling on substantive issues, and all his decisions were subject to review by the federal 313 It is argued that delegating responsibility for the discovery phase to a master has the following judge. advantages: 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 may also contribute to more consistent rulings. (...) Finally, a knowledgeable master who enjoys the parties’ confidence is well positioned to suggest cost-effective, cooperative methods for sharing or acquiring information. 314  310  For a discussion of the Great Lakes dispute, see F.E. McGovern, “Toward a Functional Approach for Managing 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 a polycentric problem which could not be easily resolved in an adjudication process. He wrote that: “The solution to any given question concerning resource division was dependent upon the solutions reached on the other questions; no issues were independent. This complex interrelationship of issues created difficulties which were compounded by the lack of any - much less clear- legal standards. The court was being asked to make extremely complex management decisions by using policy differences unreflected in the substantive law.” McGovern, supra note 310, at 459-460; See also Brazil (1986), supra note 309, at 410. 312 MCGOVern supra note 310, at 459. 313 Ibid at 458. 314 Brazil (1986), supra note 309, at 411.  74  Moreover, the familiarity with the issues that the special master developed in dealing with the case also helped the facilitation of a settlement. It is suggested that “by assigning a special master as settlement facilitator, the court can foster a negotiated disposition yet avoid either appearing prejudiced by counsel’s behavior in negotiations or by matters learned off the record, or appearing to abuse the power it would have at trial to pressure parties into accepting settlements.” 315 Thus, contrary to a judge, a special master usually tries to get the parties to “look for steps they might take, perhaps in concert, that would create net gains for both sides. He also tries to shake up assumptions and compel dialogue along holistic rather that fragmented lines.” 316 In the fishing rights case, the special master helped all parties to appreciate the limits on what they could expect to achieve even if they won at the trial level and demonstrated that by using a negotiated settlement to resolve their dispute, they could all “secure valued ends that could not be part of a court-imposed judgment.” 317 Using a computer-assisted negotiation model, the parties reached an agreement after only three days of negotiations. The court approved the settlement, but one of the Indian tribes overruled its negotiators and decided to proceed with the litigation while all the other parties ratified the negotiated agreement. The judge ruled on the merits in favor of the negotiated plan. 318  Another example where a special master was appointed in a dispute involving Aboriginal rights was in United States v. Suquamish Indian Tribe (1990) where the Ninth Circuit Court of Appeals assigned a special master to determine whether the Suquamish Indian tribe could assert the fishing rights of another tribe as a successor in interest. 319  I submit that lessons should be learned from these positive experiences in appointing special masters. In fact, most Aboriginal claims cases involve the processing of vast amount of complex evidence, the issues are generally highly political and the parties are involved in a continuing relationship. Thus, the  Ibid 316 at 412. 1bid, 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.  75  combination of a form of mediation as part of the litigation process would allow a person with a sophisticated understanding of a complex case to help the parties in narrowing the issues by finding solution 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 the costs of litigation.  C.  Improving the Role of the Courts in the Context of Aboriginal Land Claims  1.  Fundamental Legal Issues  Litigation becomes an inevitable step to answer fundamental legal questions underlying Aboriginal land claims when the parties cannot agree among themselves. Thus, the courts should be used to solve central legal questions such as whether Aboriginal rights exist or have been extinguished and the meaning of these rights in contemporary Canada. 320 However, for this to be a realistic option, funding for First Nations should be available on the same basis as it is under the negotiation process.  2.  Implementation  Once these questions have been answered, there remains the arduous task of completing the detailed arrangements necessary to implement the decision. The courts should play the crucial role in ensuring that decisions are to be implemented fairly and efficiently. ’ A special committee of the Canadian Bar 32 Association has suggested that the courts, in appropriate cases, go beyond the determination of fundamental legal rights to oversee their implementation as well. “The shadow of the court may lead the parties to the light of day”. The CBA committee made the following recommendations with respect to judicial remedies: It is recommended that serious study be given to making judicial remedies more effective in ensuring that both government policies and judicial decisions are fully implemented in relation to aboriginal rights and claims. This would require making injunctive relief available against the Crown, enabling remedies in rem to be given against the Crown, empowering the courts to require the Government to enter into good faith negotiations, and employing positive injunctive relief the so-called structural injunction in appropriate cases. 322 -  320 supra note 3, at 85. AnAgendaforAction, 321 Ibid. 322 Ibid.  -  76  Conclusion It is important to recognize and appreciate both the benefits and shortcomings of the court system in dealing 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 issues involved in the land question. The courts now can play a critical role in forcing governments to take the land question seriously and in increasing the public awareness on these important issues. The court system 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 is impossible. Furthermore, the threat of litigation can spur negotiations and provide significant bargaining leverage to Aboriginal claimants during negotiations.  However, the judicial system also brings serious problems in the resolution of Aboriginal disputes. In submitting land claims to the courts, Aboriginal people submit themselves to a foreign cultural framework, and a formal technical system, in which they have the onus of proving traditional title under rules that are unclear and changing. Further, due to the fact that land claims are polycentric problems and usually involve complex ideological, historical, political and social issues, the court system lacks the jurisdiction to effectively deal with these matters and the courts’ rules of evidence are generally not designed to handle the complex historical evidence raised by these claims.  Litigation remains an alternative for some types of Aboriginal claims, but its weaknesses have been recognized for some time. The issues involved in the land question are very basic and fundamental to the lives of both Aboriginal and non-Aboriginal peoples in Canada and it is hoped that they will be resolved through direct non-adversarial communication between all affected by these disputes. New efforts to develop appropriate mechanisms of dispute resolution should be made. In this chapter, I have discussed the 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 body  77  which would combine the process of mediation, negotiation with some powers of adjudication. This option will be further explored in Chapter Six of this thesis.  78  CHAPTER THREE  NEGOTIATION  Aboriginal groups, academic commentators, judges and governments, though for different reasons, generally regard negotiation as the most appropriate mechanism for the resolution of Aboriginal land claims and other dispute involving governments and Aboriginal peoples. In fact, at present, both the federal comprehensive and specific land claims policies provide for a structure of negotiation to resolve outstanding land claims. Negotiation is perceived as a fair process for the resolution of comprehensive claims since it requires both parties coming to the negotiating table on a voluntary basis and maximizes direct participation by Aboriginal claimants. As stated by a special committee of the Canadian Bar Association, “...aboriginal people are accorded an equal position at the bargaining table, which they perceive to be consistent with their understanding of their original relationship with the Government.” 323 Further, direct negotiation is considered the most appropriate process due to, among other things, the polycentric 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 been successful. The numerous problems with the federal land claims processes have been widely recognized and discussed over the past 20 years. 324 In a 1990 discussion paper in relation to land claims, the Indian Commission of Ontario stated that “Canadian law and Canadian government policy does not begin to meet Indian aspirations  (...) Without a policy and a process which is able to provide fair and expeditious  resolution of Indian land claims, we can expect to see recurrences of the desperate alternative we have witnesses occurring at Oka and elsewhere.” 325  323  AgendaforAction, supra note 3, at 78 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 Claims Policies and Suggested Alternatives” (Draft paper prepared for the Royal Commission on Aboriginal Peoples, April 1994). 325 ICO (1990), supra note 39, at 3 and 5. 324  79  The purpose of this chapter is to explain the various reasons for these difficulties. I should only mention at the outset that the literature regarding negotiation theories suggests that two fundamental conditions must be met for negotiation to be successful in terms of objective fairness. Firstly, both parties must have a strong common interest in achieving a mutually acceptable settlement, and secondly, there must be relative equality between the parties. 326 In Aboriginal claims negotiations, however, there is neither equality 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 imbalance between the parties will have to be addressed for equitable negotiations to take place, both in terms of process and outcomes.  This chapter is divided into three parts. In Part I, I will briefly describe the two main models of negotiation and apply these theories to the Aboriginal land claims context. Part II will examine the current reality of the negotiation process and identify the major problems with the existing land claims policies. Finally, in Part III, I will suggest some strategies to improve negotiations between First Nations and governments and look at a conceptual approach to empower Aboriginal people in the negotiation process.  Part I  Characteristics and Theories of Negotiation  A.  Theories of Negotiation  1.  Definition  Negotiation may be generally defined as a consensual bargaining process in which parties attempt to reach agreement on a disputed or potentially disputed matter. The purpose of negotiating is for parties to achieve an advantage which is not possible by unilateral action. 327  2.  Models of Negotiation  326  Colvin, supra note 54, at 5; D. Druckman, Negotiations: Social (London: Sage, 1977) at 215; McCallum, supra note 13, at 93. 327 Nolan-Haley, supra note 167, at 13.  -  Psychological Perspectives  80  The 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 a future event and dispute negotiation involves parties who are in conflict over an event which has 328 It is further suggested that the issues in dispute negotiation are generally susceptible to occurred. resolution by adjudication, such as by a judge or an arbitrator, while the issues in transactional negotiation 329 should be resolved by the parties themselves.  Further, the negotiation literature identifies two approaches to negotiation. Negotiation theorists are comparing and contrasting two distinct negotiation strategies: the competitive strategy (or adversarial, 330 and the non-competitive strategy. The non-competitive strategy can be subdivided into distributive) two different approaches: the cooperative strategy and the integrative strategy (or principled, interestsbased, problem-solving). ’ 33  2.1  Competitive Strategy  The primary assumption of competitive theoiy is that the community is governed by egocentric selfinterest. Thus, the basic premise underlying the competitive strategy is that all gains for one side are obtained at the expense of the opposing party. 332 The competitive negotiator tries to maximize the  328 at 13-14. 1bid, 1bid, at 14. 329 330 NOTE: The term “adversarial” best describes the fact that this model is strongly influenced by the court conception of dispute resolution. See C. Menkel-Meadow, “Toward Another View of Legal Negotiation: 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 Ohio State 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.  81  benefits 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. 333  Negotiation 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 take advantage 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 positions during the negotiating process. 335  Competitive negotiators tend to avoid normative arguments of “fairness, wisdom, durability and efficiency” of negotiations. They rather position themselves psychologically against the other party. 336 Competitive tactics of negotiations engender tension, mistrust, frustration, distort communication, and consequently create many opportunities for an impasse between the parties. 337 These negative attitudes may make the continuing relationships between the disputants extremely difficult. 338  2.2  Cooperative Strategy  The cooperative negotiator values concessions as a positive technique designed to “capitalize on the opponent’s desire to reach a fair and just agreement and to maintain an accomodative working 339 The cooperative negotiator shares information and usually begins negotiations with a relationship.” moderate opening bid that is both favorable to her and almost acceptable to the other side. ° The 34  Menkel-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 (New York: 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.  82  cooperative negotiator generally initiates granting concessions in order to create both a moral obligation to reciprocate and to build a relationship on trust that is conducive to achieve a fair agreement. ’ According 34 to Gifford, “the major weakness of the cooperative approach is its vulnerability to exploitation by the competitive negotiator.” 342  2.3  Integrative Strategy  The main distinction between the integrative strategy and the two previous ones is that while both the competitive and cooperative strategies focus on the opposing positions of the negotiators and the making of concessions to move closer to an outcome favorable to the negotiator, the integrative strategy attempts to reconcile the parties’ interests in order to provide high benefits for all the parties involved in the 343 Under the integrative theory, a dispute is a mutual problem to be studied and resolved jointly dispute. by the parties. The goal is to reach an outcome which benefits both parties, or maximizes joint and individual gains in terms of “win-win” solutions. 344 The process advocated by problem-solving negotiation theorists involves focusing on the interdependence between the parties. All the parties must share information so that each party’s motives, goals, and values are understood and appreciated in order to reach a solution which meet the parties’ needs and priorities. 345 The integrative negotiator considers the needs of both parties as being relevant and legitimate, and focuses on identi1,ring their common 346 Moreover, under the integrative strategy of negotiation, the aspect of fairness of both the interests. process 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 actual needs of the parties will create more possible solutions because not all needs will be mutually exclusive. As a corollary, because not all individuals value the same things in the same way, the exploitation of differential or complementary needs will produce a wider variety of solutions which more closely meet the parties’ needs. 347 s” Gifford, supra note 331, at 52. 342 Ibid. at 53. 1bid, at 54. 343 Fisher, Ury & Patton, supra note 332. D.A. Lax & J.K. Sebenius, “Interests: The Measure of Negotiation” (1986) 2 Negotiation Journal 73 at 73. Murray (1986), supra note 332, at 181; Menkel-Meadow, supra note 330, at 813-817; Lynch, supra note 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.  83  3.  The Choice of a Negotiation Strategy  The choice of which negotiation strategy(ies) to adopt in a negotiation depends on a number of factors. In deciding whether the competitive strategy or one of the noncompetitive strategies, either the cooperative or the integrative strategy, is more likely to be advantageous, the negotiator must assess the following elements. First, the most important factor to consider is the opponent’s likely negotiating strategy. In fact, to be successful the cooperative and integrative approaches require that negotiators from all parties adopt the same strategy. If the opponent adopts a competitive strategy, a negotiator should not opt for a non-competitive approach since he would be vulnerable to exploitation by the competitive negotiator. If the opponent pursues a non-competitive strategy, the negotiator can then choose between a competitive strategy or one of the two non-competitive approaches. The only circumstance where a negotiator will choose a competitive approach even if her opponent has chosen an non-competitive strategy is when the negotiator is not concerned about the parties’ continuing relationship and when there exists a feasible alternative if negotiations break down. 348  The second factor the negotiator should consider in choosing a negotiation strategy is the relative power of the negotiator and the opponent. In fact, “the critical factor in negotiations is not power itself, but rather the opponent’s perception of power.” 349 When a negotiator has, or is perceived to have, more power than the other party, he may choose either a competitive or a noncompetitive strategy. “A negotiator with a viable alternative to a negotiated agreement is exposed to minimal risk if she chooses the competitive strategy, despite the increased risk of settlement impasse.” ° On the other hand, when a negotiator’s 35 power is less than that of her opponent, noncompétitive strategies should be chosen because “the competitive strategy fails for the low-power negotiator because his threats are not credible and his positions are not viewed by the opponent as firm and unyielding.” ’ 35  348  Gifford, supra note 331, at 59-61. 349 at 62. 1b1d, 1b1d, at 64. 350 351 Ibid.  84  The third factor to consider in choosing a negotiating strategy is the likelihood of future interaction with the other party(ies). Generally, where there exists a continuing relationship between the parties, a noncompetitive approach is suggested, since “the competitive strategy often generates distrust and ill will.” 352  If a negotiator decides that a non-competitive approach is more appropriate, she must then choose between the cooperative or the integrative strategy. This decision should be made based on three factors. First, a negotiator must consider whether the negotiation is a zero-sum negotiation or not. 353 In the context of a zero-sum situation - or distributive bargaining - the cooperative strategy is recommended. On the other hand, 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 integrative negotiation approaches. “The more issues that the parties must negotiate, the greater the opportunity for integrative bargaining.” 355 Finally, the negotiator must assess the desire of all the parties to maximize both their own and the opponent’s gain. 356  B.  352  Application to Aboriginal Land Claims  Ibid. at 65. NOTE: A zero-sum negotiation occurs when “the parties seek to divide a fixed pie, a finite amount of resources or widgets; the gain of one party necessarily comes at the expense of the other party.” Ibid, at 69. 1bid, at 69. 354 ibid. at 70. 356 NOTE: This motivation depends on the following elements: “First, when the negotiators have high aspirations and high limits in negotiations, an integrative approach is recommended. High limits and aspirations 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 the motivation for integrative bargaining. (...) Finally, deadlocked negotiations on one hand, and pressure to reach agreement quickly on the other hand, affect the utility of integrative negotiations in very different ways. Deadlock often suggests that the parties regard themselves as unable to bargain cooperatively by making 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 a cooperative strategy, instead of the integrative strategy which requires more time to explore the possibilities of brainstorming and logrolling.” Ibid, at 70-7 1.  85  Given the complex and multi-dimensional nature of comprehensive claims, the integrative model of negotiation seems to be the most appropriate approach to successfully resolve these disputes, for at least three major reasons. First, negotiation theorists have affirmed that the competitive strategy is not suitable when the issues in a negotiation are multiple and varied. 357 Menkel-Meadow explains that “the stylized ritual of offer/response, counteroffer/counterresponse and concessions may not be of assistance when the issues are multi-dimensional and the parties seek to discuss a variety of solutions at the same time.” 358 The B.C. Treaty Commission encourages the use of the problem-solving in the negotiation of modern treaties in British Columbia since this approach “...allows negotiators to consider and discuss the interests underlying each party’s position. More options for resolution may then emerge.” 359 Secondly, it is generally accepted that the integrative model is more appropriate when then parties are engaged in an ongoing relationship. ° Therefore, any process which facilitates better communication and understanding 36 between Aboriginal groups and governments, and which attempts to strengthen the parties’ relationships should be adopted. Finally, the integrative model of negotiation is more culturally appropriate for First Nations, “...since the principles which it espouses are, broadly speaking, more akin to the cultural values and priorities of Aboriginal peoples.” ’ 36  However, it may not be realistic to expect that governments will adopt the integrative model in comprehensive claims negotiations. In fact, some commentators have explicitly characterized land claims negotiations between Aboriginal groups and governments as being “adversarial” or “competitive”. 362 It was reported that “...pressure tactics are used in the negotiation process, and the power imbalance between the parties is used to force agreements or to put claims on the backburner.” 363 The major problem for  Meakel-Meadow, supra note 330, at 771. 358 at 777. 1bid, B.C. Treaty Commission, The ThirdAnnual Report of the British Columbia Treaty Commission for the 359 Year 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 with William Dunlop, Director Resource Policy and Transfers Directorate, Indian Affairs and Northern Development, Ottawa, June 20th, 1996. 363 Turpel (1995), supra note 2, at 78.  86  Aboriginal claimants is that they have no leverage to force governments to agree to problem-solving negotiation, but neither do they usually have the power to respond to government “competitively” in negotiations. As noted by Menkel-Meadow, “problem solving cannot work where one party is so powerful that it will not accede to demands or requests to bargain for joint or mutual gain.” 364 The adversarial negotiation tactic might also damage the long-term relationship and the ability of First Nations and governments to work together productively to implement their future agreements. This is also the opinion of the B.C. Treaty Commission: When parties cannot negotiate beyond their positions, the process becomes a battle of wills. One side may see itself as bending to the rigid will of the other, while its legitimate concerns are not addressed. Particularly where there is an imbalance of power, such a battle is harmful to the relationship among the parties. 365  It appears that the federal government is now committed to adopting the interest-based approach in its negotiation with First Nations. 366 However, I submit that the structure of the process, the lack of mandate of government’s negotiators and the inequality of power between the parties are factors which prevent the federal government’s negotiators from reaching the true benefits of interest-based negotiation. The various problems with the structure of the existing negotiation process will now be examined.  Part IL  Negotiation of Aboriginal Land Claims  The purpose of this section is to examine the current reality of the negotiation process between the Canadian governments and Aboriginal claimants. As mentioned above, there are two land claims policies in place at present in Canada: a comprehensive claims policy and a specific claims policy. Both policies look at negotiations as the most appropriate mechanisms to resolve land claims. It appears that the underlying assumptions which have motivated the federal government to choose this approach are that negotiations will: (1) lead to better decisions; (2) be more adaptable to changing conditions; (3) be fairer to all parties involved in the dispute; and (4) be better implemented than other types of decisions. 367 364  Menkel-Meadow, supra note 330, at 833. ThirdAnnual Report, supra note 359, at 21. 366 Interview with William Dunlop, Director Resource Policy and Transfers Directorate, Indian Affairs and Northern Development, Ottawa, June 20th, 1996. 367 Frideres, supra note 175, at 291. 365  87  However, the shortcomings of the existing land processes have been widely recognized over the past 20 years. Some of the problems are due to the fact that under the existing land claims policies, “[t]he government decides which claim is accepted, how much money will be made available to the claimant group for research and negotiation, when negotiations will begin, and the process for negotiations.” 368 The following will discuss some of these problems and will recommend measures to improve the negotiation process.  A.  Structural Problems with Land Claims Negotiations  1.  Symmetry of Power Between the Parties  Power is not a characteristic of an organization or person but is an attribute of a relationship. A party’s power 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 of 369 When there is unequal power between parties involved in a dispute, it must become a factor influence. actively considered. In fact, several studies have shown that an unequal distribution of power generally results 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 discussed earlier, negotiators with high power relative to that of their adversary tend to behave manipulatively and exploitatively, while those with low relative power tend to behave more submissively. ’ As stated by 37 Druckman “...the more powerful party is likely to avoid bargaining because of a belief that he [sic] can or should be able to dominate the other, and the less powerful is likely to follow suit out of fear of reprisal or because of a sense of hopelessness about achieving an equitable agreement.” 372  368  Living Treaties: Lasting Agreements, supra note 8, at 78. 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. Dmckman supra note 326, at 185. 372 369  88  In the context of Aboriginal land claims, it is suggested that “the process of negotiating has been affected resources.” Aboriginal people by the extent to which the parties differ in power and 373  “...  are usually in  the position of supplicants seeking redress from parties whose interests in achieving an agreed settlement are not as great as their own. The opposing parties are usually governments backed by greater resources for the conduct of negotiations and able to rely on the coercive machinery of the government to enforce the status quo in the event of break-down.” 374 As mentioned above, governments tend to adopt a style of competitive negotiation with Aboriginal claimants. 375 As a result, Aboriginal groups are often forced to relate 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, and hence is able to force a narrow range of settlement alternatives for consideration. Despite repeated and frequent criticism from Natives, academics, the international community, and from sources within government itself, the current process remains largely unchanged. 376  Where there is a serious imbalance of power between the parties, as it is the case between Aboriginal peoples and governments, negotiation theories suggest that the likelihood increases that negotiations will break down or that the outcome will be perceived by one side as an exercise of coercion. The breakdown of negotiations may itself create a coerced settlement in a case where, for instance, the status quo leaves one party in possession of the disputed resource and where no alternatives for dispute-resolution are 377 Thus, past experience shows that available.  “[ilf governments are going to ensure fair and just  negotiating processes, they have to be structured to compensate for those power imbalances and seek methods less adversarial than those currently employed.” 378  Frideres, supra note 175, at 291. Daniel, supra note 42, at 222-225; Colvin, supra note 54, at 16-17. NOTE: “As a negotiator, it is important to see each party having some leverage in any negotiations, otherwise the tendency on the part of the party with all the marbles is not to play. The Department of Indian Affairs and Northern Development 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 Just Settlements Land Claims in British Columbia (Vancouver: Oolichan Books and the Institute for Research on Public Policy, 1991) at 67. -  89  2.  Terminology  Many commentators have noted the inappropriateness of the terms Aboriginal “land claims” arguing that this expression is misleading in that it connotes that Aboriginal’s grievances are merely a contention rather than a valid fact. Aboriginal people have said many times that they find this expression very offensive because it seriously misrepresents Aboriginal concepts of land and contribute to reinforcing the power imbalance between the parties. 379  Professor Michael Asch argues that by using the term “land claims”, Aboriginal people “.,.have had to accept working within a paradigm that is external to their ideology and yet to find ways within it to obtain some of the rights and guarantees they see as properly theirs.” ° Thus, the use of the expression “land 38 claims” has a serious impact on First Nations, for they are forced to operate within parameters which do not recognize the principle which derives from their own conceptual framework and ignore the right that would flow from an acceptance of their framework in Canadian law. 3  The existing situation would be more appropriately represented by the expression “land question”. As Frank Cassidy points out, there are claims on both sides and the situation is in fact “a dispute or a difference about who has the rights to the land, who has the rights to the resources, who has the right to 382 govern.”  3.  Land Claims Policies  Living Treaties: Lasting Agreements, supra note 8, at viii; Puxley, supra note 375, at 116; See also J.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 Rights Claims” (1989) Canadian Public Policy, at 211-212. 381 Ibid, at 212. F Cassidy, “What Can the Federal and Provincial Governments Do?” in F. Cassidy ed., Reaching Just 382 Settlements 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 values 383 One of the most serious problems that will guide government actions are selected and rationalized.” with the land claims policies is the fact that the federal government has unilaterally developed and revised them without substantial input by First Nations, and therefore these policies generally reflect the principles 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 its policy 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 a time-consuming process of learning the government’s position on a range of claims-related issues. The government’s reactions to Native displeasure concerning land claims negotiations has [sic] been limited to verbal assurances; little substantive change has occurred. 384  The problem is not so much with the process of negotiation since it seems to have been the preference of most First Nations in the period leading up to the 1973 statement of policy on land claims, as assessed through informal consultations by Lloyd Barber. The difficulty arises from the fact that through its land claims policies, the government largely dictates the terms for negotiation and states its non-negotiable positions. In practice, this mean that the government decides “...not only the specific rights claims that can be negotiated, but also the various premises which must be accepted by Aboriginal claimants if the government is to agree to negotiate at all.” 385 Thus, through the development of land claims policies, the federal 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 long time now and progress on new approaches and innovative dispute-resolution strategies have been slow. 386 Given the serious impact of the application of governmental policies in the negotiation forum, there  383  Weaver (1985), supra note 122, at 141. Leghorn, supra note 90, at 18. NOTE: However, the system has changed in British Columbia since the establishment of the B.C. Treaty Commission. 385 McCallum, supra note 13, at 89. 386 Turpel (1995), supra note 2, at 66. 384  91  clearly needs to be increased participation by Aboriginal peoples in the policy-making process so as to influence the setting of agenda and scope of the negotiations. 387  4.  Conflict of Interest  Since the establishment of the first federal land claims policy in 1973, it has been suggested on many occasions that the process for dealing with both the specific and comprehensive claims is not based on standards 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 and  all the funding decisions. At the same time, the same Minister is responsible for the government’s position in negotiations and also has a fiduciary duty to the Aboriginal groups all of which create an inherent conflict of interest in the process.  4.1  Acceptance of Claims  The responsibility to decide which comprehensive claims will be negotiated is given to officials of DIAND. They have the mandate to make such decisions relatively to comprehensive claims by determining a claim’s “acceptability according to legal criteria.” 388 The criteria to be met to have a comprehensive 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 to lands; (2) they must show that they are an organized society; (3) that they have occupied a certain territory since time immemorial; (4) that their occupation and use was continuous; and (5) that they have excluded  387  NOTE: Another example of the limited participation of Aboriginal peoples is expressed by Chief John Snow when he refers to the Constitutional conferences on Aboriginal issues section 37 of the Constitution Act, 1982, states that the constitutional conferences on aboriginal issues will be ‘composed of the Prime Minister of Canada and the First Ministers of the Provinces,’ while members of the Indian nations will attend only as invited ‘representatives.’ “Our status at the conferences is that of a powerless minority group, which may deserve some kind of special recognition but which is not entitled to share any real 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 of Toronto Press, 1985) at 43. 388 Denhoff, supra note 95, at 10. NOTE: Under the specific claims policy, the acceptance of a claim is based on the controversial concept of “lawful obligation”. -  92  other Aboriginal peoples in the pursuit of traditional customs within the territory. 389 The procedure was described 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 Development will review the submission and accompanying documentation and seek the advice of the Minister of Justice as to its acceptability according to legal criteria. The claimant group will be advised by the Minister of Indian Affairs and Northern Development, within twelve months, as to whether the claim is accepted or rejected. In the event that a claim is rejected, reasons will be provided in writing to the claimant group. ° 39  There has been abundant criticism of this validation process since it appears that  “. .  .the government has  set out broad criteria and often interprets them in narrow and unpredictable ways, often withholding legal reasons from First Nations claimants on the basis of Crown privilege.” ’ I would submit that in cases 39 where the federal government does not provide reasons for rejecting a claim, the negotiation process disregards a generally accepted principle of natural justice, namely that an applicant is entitled to examine the reasons for an administrative decision.. As noted by the Indian Commission of Ontario: “Any system of secret judgments over the validity of land claims will be open to suspicion and arbitrariness and disregard for law.” 392  Moreover, it has been suggested that in applying the criteria for accepting a claim, the federal government wants to have what is considered true “evidence” from a Euro-Canadian perspective. “They want studies by experts, experts they trust and define as credible. The stories of elders or neighbourhood mothers are in their world, just stories. What they want is “science”, truth claims produced by people who have credentials; law degrees, Ph.D’s and certified appraisers.” 393 As a result, “...First Nations frequently will not accept treatment of all claims as having been just when the federal government which is the party -  389  Turpel (1995), supra note 2, at 76. 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 Claims Negotiations” (Paper prepared for the National Conference on Land Claims in Canada: Beyond the Rhetoric, Toronto, June 26-27th, 1996) at 4. 390  93  against which the claim has been lodged rejects it by a unilateral decision made according to a -  unilaterally-imposed claims policy.” 394  4.2  Funding Decisions  When the federal government accepts a claim for negotiation, the Aboriginal claimants are almost entirely dependent upon grants and loans from the federal government to develop their negotiating positions and to pursue claims negotiations. Many commentators have argued that “[fJunding for submission and negotiation is inadequate, owing to the fact that loans and funding decisions rest with the department.” 395 The federal government has the power to refuse to provide adequate financial assistance by way of loan or grant. When it does make funds available to Aboriginal claimants, the government decides on the level of financial support which in certain cases can be insufficient which can affect the quality of the claim put 396 It is also argued that funding is being used as a lever in negotiations since Canada can suspend forward. or withhold funding in its absolute discretion. 397 No direct accountability is required which in turn directly constraints the negotiating power of the Aboriginal claimants. Steve Kakfwi, Dene Nation president stated that “[w]e are told this is what you can talk about and this is what you can’t talk about. If you don’t talk the way we want you to talk, then there is no financial assistance. We get a loan to do research, to develop our positions; but if we don’t do the kind of work they want us to do, then they withdraw 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 government suspended funding for the Dene for a period of two years, during which time the Dene and Metis had to agree upon a joint negotiating mechanism. In 1983, funding was again suspended due to an alleged lack of cooperation between the parties. Further, it is reported that in 1973, Jean Chretien, then Minister of Indian Affairs, threatened to cut off federal funding to the Cree and Inuit when they initially refused to accept 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.  94  Moreover, funds used by Aboriginal groups to regain land title and rights must be repaid from compensation moneys granted to them which, as a result, places unfair pressure on Aboriginal people to 399 The federal government is therefore placed in a serious position of conflict of interest by its settle. ability as a negotiating party to control the financial resources of the other party. With this financial control, one could argue that the federal government not only has the power to manipulate the process but also to control the behavior of the other party.  Thus, the conflict of interest in which the government finds itself is obvious since it “...remains the ultimate adjudicator of claims made against it.” ° David Knoll summarizes this conflict of interest in 40 these 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 action through the Courts. There is not even the least effort to preserve the image of neutrality. This situation, 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 Mechanisms  If a comprehensive claim is rejected, there is no appeal process, and there is no right to a hearing, to make submissions, or to have an independent party reviewing the decision. 402 The only alternative to the comprehensive claims policy is to go to court. 403 As mentioned in Chapter One, the federal government has established the Indian Claims Commission to review claims that have been rejected but the mandate of the Commission is limited to specific claims only.  Leghorn, supra note 90, at 19; Dacks, supra note 90, at 256. 400 Knoll, “Unfinished Business: Treaty Land Entitlement and Surrender Claims in Saskatchewan” D. (1986) [unpublished] at 15. 401 Ibid. 1bid, at 78. 402 403 NOTE: As stated by the CBA, “[un reality the aboriginal claimant is denied this option because access 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 renowned for its fonnality. As well, the judiciary is trained in the English common-law system and has little or no training in Aboriginal laws and concepts. See An Agenda for Action, supra note 3, at 56.  95  5.  Interim Measures Agreements  The negotiation process is slow and it takes generally many years before a final agreement is reached between First Nations and governments. In 1985, the Coolican report pointed out that “...unless negotiations deal more expeditiously with aboriginal claims and the interests of aboriginal groups are protected pending the outcome of negotiations, groups may turn to litigation as the only effective means of securing their rights.” 404 Despite this recommendation, the most recent federal comprehensive claims policy states only that “[a]ppropriate interim measures may be established to protect aboriginal interests while the claim is being negotiated. These measures will be identified in initial negotiating mandates in specific cases.” 405 Turpel reports that the actual process is not working in that it does not provide for any real form of protection for the interests of claimants. According to William Dunlop of the Department of Indians Affairs and Northern Development, the federal government is willing to negotiate interim measures agreements but difficulties arise due to the fact that First Nations’ demands are often too 406 Moreover, in the third annual report of the B.C. Treaty Commission, the B.C. government extreme. was severely criticized for refusing to negotiate interim measures agreements at an early stage of the negotiation. In fact, the B.C. government said that it would negotiate such agreements only when the claims are at an advanced stage for negotiation. According to Alec Robertson, Chief Commissioner of the B.C. Treaty Commission, interim measures agreements are necessary to keep Aboriginal groups at the negotiation table and prevent them from resorting to the courts. 407 Thus, when governments refuse to negotiate interim measures agreements, the only forum available to claimants to secure their rights before and during the negotiation process is to seek redress before the courts through injunctive relief or other means in order to prevent the destruction of the lands and resources they claim. 408  6.  Timelines  404  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 Affairs and Northern Development, Ottawa, June 20th, 1996. 407 ThirdAnnual Report, supra note 359, at 26. ‘° Turpel (1995), supra note 2, at 78. -  96  Deadilines 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 or risk foregoing benefits and increasing costs. Without a deadline that is regarded as valid by all parties (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. 409  However, there are no fixed timelines for negotiations in the existing claims policies and it is arguable whether governments always have strong incentives for settlement. Consequently, there is a danger that negotiations, as it has been the case in the past, will linger on with no foreseable prospects of ° These interminable delays have serious consequences for First Nations as the funds loaned 41 settlement. to them to finance their participation in land claims negotiations must be repaid.  7.  Impasse  When negotiation fails, there is no alternative but to bring the claim before the courts since the government has generally refuses to participate in mediation and arbitration. The problem with respect to impasses occurring during the negotiation process has been expressed by the Indian Commission of Ontario in the following way: In the majority of cases where an agreed settlement is not easy to reach, if the government simply refuses to address an issue or even to negotiate at all, the claimant has no recourse apart from the courts. The claimant simply has no way to resolve an impasse where the parties disagree on an issue. However, resort to the courts is not a realistic option for most claimants for financial and other reasons.” 411  In fact, under the existing land claims policies, the claimants cannot refer an unresolved issue to the Court and go back to the negotiation table to continue the rest of the discussion on other issues. The federal government’s position is that when litigation begins, negotiation ends. Consequently, there is no funding available to facilitate court references as part of claim negotiations. 412  409  J.A. Folk-Williams, “The Use of Negotiated Agreements to Resolve Water Disputes Involving Indian Rights” (1988) 28 Natural Resources Journal, 63 at 94. ° Turpel (1995), supra note 2, at 78. 411 ICO (1990), supra note 39, at 99. 1bid, at 53. 412  97  One 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 the Accord of Recogmtion and Respect which was signed in June 1994. Under the terms of the Accord, the parties sought and were granted an adjournment of the Delgamuukiv appeal on issues of Aboriginal rights to 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 and jurisdictions with the Gitxsan without further direction from the Supreme Court of Canada. 413 Thus, the entire negotiation broke down and all the issues will be resolved by the Supreme Court of Canada.  B.  Problems in Substantive Negotiations  Other than these procedural difficulties, attempts to negotiate disputes over Aboriginal land claims also raise a number of substantive problems that have made the use of negotiation to resolve the land question very difficult.  1.  Compromise  Whether the competitive, cooperative, or the integrative strategy is employed in negotiations, there is always a need for some measure of compromise. In the context of land claims negotiations, this element has proven to be problematic. On one hand, compromise on fundamental issues such as resources which are 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 as spirituality, fundamental values, rights, lifestyle, and cultures. On the other hand, it is unlikely that the federal government will adopt a much broader interpretation of Aboriginal rights than what it is prepared to acknowledge through its land claims policies. In fact, the governments’ negotiators are bound by departmental policies and they have to handle negotiations in a way to comply with and reinforce existing  413  British Columbia, Ministry of Aboriginal Affairs, “Province Suspends Treaty Negotiations with Gitxsan” (Press Release, February 1, 1996).  98  414 Therefore, given the disparity of power between the parties, one could presume that the policies. weaker party First Nations will face the heaviest burden in any compromise. -  2.  -  Premises of Negotiations  Negotiations have better chance of success when the parties share common or compatible objectives and similar expectations of the process. 415 However, the objectives of First Nations and governments in entering land claims negotiations are generally in direct opposition. On one hand, the primary goal of the federal government in comprehensive claims negotiation rests on extinguishing Aboriginal title to land in exchange for some specific benefits which could contribute in lessening Aboriginal dependency. 416 On the other hand, First Nations aspire to “striking a “social contract” with governments, obtaining official recognition of the full range of inherent rights, and finding equitable arrangements for sharing resources with governments.” 417  2.1  Certainty  Canadian land claims policies have always contemplated certainty by insisting upon the extinguishment of all Aboriginal rights as a condition to enter into negotiations. 418 However, First Nations view extinguishment as culturally unacceptable and as a renunciation of their unique relationship with their traditional territories. 419 Lloyd Barber explains that the terms “extinguishment” and “compensation” for Aboriginal people  “...  mean that the Government’s policy is to buy them out and terminate traditional  rights which they believe are still very relevant.” 420 However, “Indians do not see their rights as being for  414 supra note 13, at 118. McCallum, 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 Disappointed Hopes” in B. Richardson ed., Drumbeat: Anger and Renewal in Indian Coun fry (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 that settlements must be final and that the purpose of this is to provide certainty and clarity of rights to ownership 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.  99  sale. They expect recognition of their rights to lead to the continuing exercise of those rights with implications for self-sufficiency and self-determination.” 421 Aboriginal groups have therefore condemned this policy arguing that it meant assimilation and cultural destruction 422 and that it violated constitutional recognition of existing Aboriginal and treaty rights, including an intrinsic right to self-government as 423 promulgated in the Royal Proclamation.  As noted by the British Columbia Claims Task Force, “First Nations should not be required to abandon fundamental constitutional rights simply to achieve certainty for others.” 424 This condition of extinguishment imposed by the federal government as a requisite to enter into land claims negotiation has provoked strong reaction from Aboriginal people and represent a serious impediment to the fair and expeditious resolution of these claims.  It might be possible to achieve certainty without recourse of extinguishment. Alternatives to extinguishment were explored the Task Force in Leaving Treaties, Lasting Agreements. In its report, the Task Force stated that: A claims policy that requires a surrender and extinguishment of all aboriginal rights can, and must be abandoned. It can be abandoned because, as we have shown, there are other methods for clearing title to the land. It must be abandoned because, if it is not, there will be no possibility of achieving land claims agreements based on common objectives. 425  The British Columbia Claims Task Force has suggested that the parties should strive to achieve certainty through modern treaties which state as precisely as possible each party’s rights, duties, and jurisdiction. 426 Moreover, the Liberal party explicitly promised during the last election campaign in 1993 that under a Liberal government, land claims processes would no longer be premised on the blanket extinguishment of  421  ICO (1990), supra note 39, at 13. 422 at 40. Jbid, 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. B C. Task Force, supra note 25, at 29. 424 425 Living Treaties: Lasting Agreements, supra note 8, at 43. BC TaskForce, supra note 25, at 29. 426  100  Aboriginal or treaty rights and that other approaches would be explored which would not require Aboriginal peoples to sever their historic relationship to lands. The policy document stated that “[i]n order to be consistent with the Canadian Constitution which now “recognizes and affirms” Aboriginal and treaty rights, a Liberal government will not require blanket extinguishment for claims based on Aboriginal title.” 427 However, to date, no formal change have been made to the comprehensive claims policy with respect to the extinguishment condition. Governments have nonetheless accepted to sign an agreement-in-principle with the Nisga’a people in British Columbia which is not premised on the extinguishment of the First Nation’s rights. This could be an important precedent which could lead to a formal change in the comprehensive claims policy.  2.2  Flexibility  According to Lloyd Barber, “there can be no finality in Indian-Government 428 relations”. When negotiating treaties, the parties must consider the possibility for renegotiation in the event of new, previously unforeseen circumstances occurring. 429 Dynamic, ongoing relationships involve change and thus require flexibility in the process. Murray Coolican also encourages a flexible approach, “[tb believe that yesterday, today, or tomorrow we can fix with finality our association with aboriginal societies is to deny 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 power between Aboriginal groups and governments. Unfortunately, it has been suggested than “Aboriginal claimants are often powerless to enforce their perceptions, or change the rules of the game defined by governments, and have few options but to reluctantly accept the game  427  Creating Opportunity, supra note 6, at 11. 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. 428  (...) When Aboriginal claimants  101  have resisted the government demand for extinguishment, negotiations have dragged on interminably, often dissolving in acrimony and frustration.” ’ 43  3.  Lack of Authority  Many commentators have suggested that one of the most serious difficulties in land claims negotiations is the lack of authority of the governments’ negotiators. It appears that often negotiators do not have a real mandate to make substantive commitments on the part of their government. The B.C. Treaty Commission has observed that “Canada’s and B. C. ‘s negotiators have demonstrated limited authority and worked with mandates 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 by anonymous bureaucrats back in Ottawa, and “done deals” set aside by higher authority.” 433  Mandates 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 the resolution of land claims and contributes to increasing the distrust of the First Nations. Moreover, the limited mandate of government’s negotiators affect their ability to use the interest-based strategy of negotiation. They rather come to the table with a firm position and do not have the flexibility to explore creative options. 434  4.  Lack of Trust  One of the principal characteristics of the relationship between Aboriginal groups and governments is the lack of trust between the parties. It has been suggested that the relationship is such that “[e]ven positive moves are suspected of concealing ‘hidden agendas”. 435 This negative relationship has a serious impact 431  McCallum, supra note 13, at 113 and 114. 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 Making Peace 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. 432  -  102  on the dynamic of the negotiations and can be evidenced by the fear on the part of all parties to adopt an open and cooperative attitude throughout the negotiations.  5.  Incentive to Negotiate  As noted by the Indian Commission of Ontario, “[i]t would be naive  (...) not to consider the possibility  that some parties (particularly the federal and provincial governments), may believe that it is in their interest to simply “manage the issues” rather than resolve them.” 436 In fact, by delaying the settlement of valid claims, governments are able to defer payments and to save interest costs. However, there is also a considerable cost of not settling the outstanding land claims in various provinces. 437 First, there is the ongoing 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 might impede economic development in these regions. Third, there is the price of violent confrontation which is always veiy significant.  The incentive to settle is stronger on the part of a First Nation since the status quo will generally leave the government in possession of the disputed land and resources, with no other option than the court system for 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 claims negotiations or to refuse to discuss positions at the table, since an impasse at the negotiation table will leave the First Nation without the land or compensation they ultimately seek. Failure to change the status quo seems to be more easily accepted by Canada and Ontario, which can simply close a file to “resolve” an issue. 438  It has been suggested that “[tjhe government’s receptivity to aboriginal demands is not necessarily based on compassion or outrage but on politics and power.” 439 In the past, economic development has been the  436  ICO (1994), supra note 152, at 53. NOTE: A Price Waterhouse Report for the province of B.C. stated that “Cost of uncertainty over land claims is more than $1 billion in foregone investment” (Price Waterhouse Report: Economic Value of Uncertainty Associated with Native Claims in B.C. 1990) 438 ICO (1994), supra note 152, at 46. Fleras and Elliot, supra note 63, at 125.  103  main incentive for inducing governments to negotiate Aboriginal claims. 440 In fact, most modern settlements have been achieved only when governments were eager to facilitate an economic development project, otherwise, “...the government’s patience for negotiation appears unlimited.” 441 A clear example of the motivation of the government to settle is the James Bay hydro-electricity project. According to John Ciacca, [w]ithout the James Bay project there would be no agreement. Unfortunately, governments rarely act 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 was made necessary by the hydro-electric project.(...)In that manner, development can be an opportunity to effect important reforms while providing adequate protection to the native 442 communities.  Another example of the true motivation of the government to settle land claims is the agreement-inprinciple with the Inuvialuit in Canada’s Western Arctic in 1978. In that case, the motivation of the federal government was to enter into an agreement to clear title and to allow for large-scale petroleum and natural gas developments. However, when the project became unfeasible, the government’s enthusiasm to settle declined, though a settlement was finally reached. 443 A similar attitude was noted in the case of the Dene comprehensive claim in the MacKenzie River region of the Northwest Territories. In that case, the fluctuations in the negotiations correspond with the level of government enthusiasm for resource 444 Thus, as Leghorn stated in concluding her analysis of the Canadian Aboriginal claims development. process, “[t]he evidence indicates that industrial development, not fairness, is the actual motivation”. 445  440  Richardson (1975), supra note 227, at 309; R.H. Bartlett, “Resource Development and the Extinguishment 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 and Political Will” (Recherches Amérindiennes au Québec) at 5; Living Treaties: Lasting Agree,nents, supra note 8, at 13; Feit, supra note 161, at 165; W.R. Morrison, “The Comprehensive Claims Process in Canada’s North: New Rethoric, Old Policies” in K.S. Coates & W.R. Morrison, eds., For the Purposes of Dominion: Essays in Honour ofMorris Zaslow (North York, Ontario: Captus University Press, 1989) at 264 and 270. 441 Living Treaties: Lasting Agreements, supra note 8, at 78. 442 Ciacca, supra note 126, at 562, AnAgendaforAction ,supra note 3, at 24; McCallum, supra note 13, at 136. 443 McCallum, supra note 13, at 136; See also S. Smith, supra note 440; Commissioner, supra note 67, at 21. Leghorn, supra note 90, at 20. See also Coolican, supra note 176, at 6. ‘  104  C.  Cultural Differences  The resolution of Aboriginal claims cannot be meaningfully discussed without reference to Aboriginal cultures and their fundamental differences from Euro-Canadian culture. The differences in the cultural frameworks of Aboriginal and non-Aboriginal society manifest themselves in the negotiation forum. The dominant Euro-Canadian culture uses its power to define the cultural framework of negotiations as Aboriginal people lack the political power and perceived legitimacy to impose their own values. 446  In the following discussion, I will briefly comment on the different worldviews of Aboriginal and nonAboriginal societies and I will examine two of the major cultural differences between the two groups to illustrate the constant challenge faced by Aboriginal peoples when participating in a system that does not reflect the basic value structure of their culture.  As mentioned in the Introduction, it is critical to recognize the diversity within Aboriginal cultures in Canada. It is therefore essential to be careful not to over-generalize or over-simplify. However, despite the diversity among First Nations in Canada, it is still possible to broadly examine the underlying unity of Aboriginal cultures versus non-Aboriginal culture as the differences are quite pronounced.  1.  Different Woridviews  According to Kuichyski, “Aboriginal cultures are the waters through which Aboriginal rights swim.” 447 Williamson defines culture as being “...the most profound force that conditions human behaviour. Vital components of culture include mythic tradition and symbolism, supernatural beliefs and values.” 448 Moreover, it should always be kept in mind that culture is an evolving dynamic, not a static concept.  446 supra note 13, at 119. McC1um “‘ Kuichyski, supra note 20, at 13. 448 R.G. Williamson, “Cross-Cultural Dialogue Between Governments” in Grosse, Youngblood Henderson & Carter, eds., Continuing Poundinaker & Riel ‘s Quest (Presentation Made at a Conference on Aboriginal Peoples and Justice) (Saskatoon: Punch Publishing, 1994) at 171.  105  One of the most interesting discussion about the cultural differences between Aboriginal and nonAboriginal societies is found in Rupert Ross’ Dancing with a Ghost.  The central theme of Ross’ work  is that Aboriginal and non-Aboriginal culture are “...separated by an immense gulf, one which the EuroCanadian culture has never recognized, much less tried to explore and accommodate.” ° According to 45 Ross, the dominant culture’s traditional lack of recognition of cultural differences has its roots in colonialist ideology. ’ Thomas Berger was also of this opinion when he wrote that “[a] lack of 45 understanding and of sensitivity to native peoples and native values is endemic to European-derived political systems.” 452 He then adds that: Euro-Canadian society has refused to take native culture seriously. European institutions, values and use of land were seen as the basis for culture. Native Institutions, values and language were rejected, ignored or misunderstood and given the native people’s use of land -the Europeans had no difficulty in supposing that native people possessed no real culture at all. 453 -  A good example of the cultural misunderstandings between Euro-Canadian and Aboriginal societies can be found in the Gitksan and Wet’suwet’en case, where Chief Justice McEachern offers the following explanation for the problems Aboriginal peoples face with the present society: “In my view the Indian’s lack of cultural preparation for the new regime was indeed the probable cause of the debilitating dependence from which few Indians in North America have not yet escaped.” 454 This comment clearly reflects an underlying assumption of inferiority by implying that the problem lies within the limitations of Aboriginal culture to adapt to the dominant legal culture.  I submit that the resolution of cross-cultural conflicts will depend upon the recognition and understanding of 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 with people from another culture, our interpretations of their acts and words will very frequently be wrong. It follows that when we respond to their acts and words, relying upon our interpretations of them, we will respond by doing and saying things which we would never consider appropriate R. Ross, Dancing With a Ghost: Exploring Indian Reality (Markham, Ontario: Octopus Publishing Group, 1992). Ibid, at xxii. 450 451 Ibid. Berger supra note 112, at 8. 452 Ibid, at 22. Delgamuukw v. The Queen, [1991] 3 W.W.R. 97 at 268-269. 454  106  had we known the truth. (...) [WJe have not understood the degree to which the rules of their culture.., differ from ours. We must learn to expect such difference, to be ever wary of using our own cultural assumptions in interpreting their acts and words, and to do our best to discover their realities and their truths. 455  One of the most important cultural differences which contribute to creating misunderstanding during negotiations is the native language of the various groups involved in land disputes.  1.1  Language  Language is the common thread within a culture its way of expressing feelings, concepts, understanding -  and aspirations. Language is a reflection of a way of thinking it expresses the thoughts emanating from -  456 As noted by Edward Hall, “people from different cultures not only speak different languages, the mind. but inhabit different worlds... so that experience as is perceived through one set of culturally patterned sensory screens is quite different from experience perceived through another.” 457  In Canada, the different Aboriginal groups developed distinct languages over thousands of years, each of which reflected a unique lifestyle. After the arrival of Europeans, many First Nations learned one or both of Canada’s official languages (through residential schools for instance) and English and French are now the official languages for the negotiation of land claims with governments. However, it is important to note that First Nations people do not use English words in the same way as people who do not share their culture 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 expressing Aboriginal concepts in a different language: Today we are being asked to spell out our Indian rights in a foreign language - the English language in constitutional form. We are accustomed to talking about our rights in our own languages with our elders. Because of problems of interpretation we have always been in a weak position in our dealings with government. We have experienced an additional disadvantage because 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. 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, supra note 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. 456  107  Explaining our rights in a foreign language is almost impossible, because sometimes we cannot find English words equivalent to our Indian words. 459  Further, 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 explains that: 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 our impatience, frustration and rejection of their shrugs, downcast eyes and shuffling. The non verbal 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, and philosophies. However, governments have not always tried to understand the unspoken assumptions underlying Aboriginal words. Thus, it could be argued that Aboriginal people are put at a disadvantage in the negotiation process because of the differences in the language and the meaning of crucial concepts which are negotiated.  1.2  Decision-Making  As Leghorn suggests, “..,both Natives and government participants should be familiar with each other’s culture, values, and decision-making processes, so that this type of ignorance doesn’t bias the entire 461 proceedings.”  Marg Huber reports that Canadian native community leaders have listed the following as Aboriginal values concerning conflict: “cooperation, equality among people, harmony, non-interference in individual matters, consensus decision making, privacy, a holistic approach to life, respect for elders, the relativity of time, and spirituality.” 462 The literature reports that Aboriginal cultures value open and continuous  Snow, supra note 387, at 41. J.T.L. James, “Towards a Cultural Understanding of the Native Offender” (1979) 21 Can. J. Crim. 453 at 456. 461 Leghorn, supra note 90, at 7. 462 Quoted in LeBaron Duryea, supra note 14, at 35-36. ‘°  108  dialogue and consensus. 463  The decision-making process is horizontal and issues are discussed and dealt  within their own context. 464 All members participate in decision-making as a collectivity. 465 The power of decision is traditionally vested in the total membership of the group or band, and unanimous consent is required before action is taken. Chiefs are spokespersons for the group and elders are generally always consulted before final decisions affecting the community are made. 466 The problems and disputes are discussed openly and are not limited to formal forums governed by set timeframes. Process with integrity is more important than quick and binding solutions, since joint decision-making is thought to facilitate people abiding by the decisions which are arrived at. 467 All these factors serve to empower individual community members and uniIr the collective community. As reported by the Osnaburgh/Windigo Tribal Council Justice Review Committee: “Disputes would be solved by a person known to both disputants, in contrast to the impersonalized machinery adopted by the Euro-Canadian justice system. When a dispute arose, it tended to involve other members within the same community and a well-understood system existed to resolve itself.” 468  In the negotiation context, it may become increasingly clear that the two sides are operating under two distinct value systems, which in turn can lead to very different tactics and strategies. 469 It is submitted that the usual negotiation style of the government the competitive model reflects the non-Aboriginal -  -  cultural values. As stated earlier, the competitive approach is generally characterized by confrontation, adversarial tactics, and claiming strategies. ° This discourse then usually dominates the atmosphere of 47 negotiations, since Aboriginal claimants have no leverage to force governments to use the integrative 463  See, for example, Ross (1992), supra note 449, at 21-23; McCallum, supra note 13, at 125. M. Coyle, “Traditional Indian Justice in Ontario: A Role for the Present?” (1986) 24 Osgoode Hall Law J. 605 at 614. 465 Boldt and Long, supra note 109, at 169. R Fumoleau, As Long as this Land Shall Last: A History of Treaty 8 & Treaty 11 1870-1973 (Toronto: 466 McClelland & Stewart, 1974) at 151; Boldt and Long, supra note 109, at 169; Richardson (1975), supra note 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 the Administrative Structure Arising from the James Bay Agreement Montreal: ssDss, 1979) at 2 and 32; See generally, Feit, supra note 161. 464  109  approach 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 or ignored.  In the negotiation process controlled by Euro-Canadian governments, Aboriginal claimants must adapt to the dominant cultural framework by translating their values and priorities into the language of the dominant discourse with the associated risk of misrepresenting the true aspirations of the Aboriginal 472 As Leghorn observed: community.  “...  Natives need complete understanding of the liberal capitalist  economic system and representative democratic political structure within which they are pursuing their 473 In order to protect their rights and adjust to the government’s negotiation strategy, First claims.” Nations must be as technical, adversarial and legalistic as governments. 474 As a result, First Nations become more dependent upon legal consultants and technical experts which may, in the long-term, affect the way of life of some Aboriginal communities. As reported by Ignatius E. La Rusic in relation to the negotiation of the James Bay Agreement, “...the legalistic tone established during the negotiations continues to influence a major part of the Cree administrative operations, which have since developed.” 475  Part ifi A.  Strategies to Improve the Negotiation Process Lessons Learned from the Yukon Agreement  Before examining various strategies to improve the existing negotiation process, it is useful to look at one successful experience that occurred in the Yukon, I will briefly summarize the history of the dispute and then examine the process which was followed during the negotiations.  471  Ross, supra note 449, at 8. McCallum, supra note 13, at 130. Leghorn, supra note 90, at 13. NOTE: See for example the James Bay and Northern Quebec Agreement 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 then Chief of the Crees, Billy Diamond said that “[alt our insistence technical and legalistic language was used to ensure precision in defining our rights... We were determined that our rights would be written down with 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. 472  110  1.  Background  In early 1973, the Council for Yukon Indians submitted its claim, entitled Together Todayfor our Children Tomorrow, and negotiations commenced by late 1973. In 1984, an agreement-in-principle was reached and was ratified by both the federal and territorial governments, but failed to get the necessary ratification of the 14 Yukon First Nations as they were concerned with provisions that required Aboriginal title to land and resources to be extinguished. In 1987, negotiations continued under the new comprehensive claims policy and with a specific Cabinet mandate. Between October 1987 and November 1988 the parties negotiated an agreement-in-principle which was finally ratified in 1989.476 The agreement includes provisions to the effect that Aboriginal title will not be extinguished on most settlements lands, for a framework to negotiate self-government agreements, and for rights to subsistence wildlife harvesting. Due to the complexity of the issues to be resolved, the parties agreed to proceed with a series of agreements which include: -  -  -  -  -  -  -  an umbrella final agreement, which will be general in nature and will apply throughout the settlement area; individual Yukon First Nation final agreements, which will incorporate all of the provisions of the umbrella final agreement and will address the specific circumstances of each Yukon First Nations. transboundary agreements, which will resolve overlapping claims of Aboriginal groups in the Yukon, the Northwest Territories and British Columbia; self-government agreements, to be negotiated concurrently with claims agreements in accordance with 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. 477  In May 1992, the Yukon Indian Umbrella Final Agreement was initialed by negotiators for the federal and territorial governments and was later ratified by all the parties. To date, four Yukon First Nation final agreements have been ratified which include Champagne and Aishihik, Nacho Nyak Dun, Teslin Tlingit Council, and Vuntut Gwitchin. Each of these four First Nations has ratified self-government agreements  476 supra note 378, at 66. iight “ Elliot, supra note 19, at 180.  111  and the respective implementation plans for each of the claim and self-government agreements. 478 Negotiations are currently continuing with additional Yukon First Nations.  2.  Principles of the Process  Chris Knight, chief negotiator for the Land Claims Secretariat, Yukon Territorial Government reports that 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 were discipline. As described at the beginning of this chapter, principled negotiations necessary to impose 479 “focus on interests, not positions, and place a high value in the integrity of the relationship among the parties both during and after the negotiations.” 480 Knight explains that this approach “requires more work, more preparation, more focus on process design, but the main thing it requires training.” 48 The process in the Yukon was “community-based” with negotiation table rotating to the various Yukon communities. Knight describes the benefits of a community-based process. He explains that this approach makes the process more real to the people it most directly affects, the Aboriginal people and their neighbors at the community level. Aboriginal people have the opportunity to better understand the issues and accept the need to compromise during the negotiating process. It also provides direct community access to the negotiators of both parties. Government negotiators have an opportunity to understand 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 the decisions reached at the negotiating table have support at the community level. 482 This concept of “ratify as you negotiate” directly depends on the degree to which the process is open to all interested parties. In the Yukon, Knight reports that from the beginning of the process, negotiators from all parties discussed  478  Ibid. Knight, supra note 378, at 66. 480 Ibid at 67. 481 Ibid. 482 Ibid at 67-68  112  with fifty to sixty different interest groups on the process of negotiation and on any specific issues of interest to them. 483  Finally, a deadline of nine months was imposed on the Agreement-in-Principle negotiations. It is argued that this deadline kept the parties focused on the process and provided some leverage for resources to support the negotiations. 484  3.  Lessons Learned  This successful experience can teach us many lessons about the negotiation process. First, Knight learned that “a broad base of support for the agreement is a very tenuous thing; and once you open lines of communication with a large number of interest groups, you had better keep them open or they will be snapping at your heels.”  485  Secondly, Knight contends that political leaders of all parties must also be  involved at strategic points throughout the process to make it successful. Thirdly, it seems that there is a need to implement parts of the agreement as they are negotiated in order to “test drive” some of the structures and processes and see how they work. Finally, an important lesson to be learned is that “the people at the table must strive to reach a high level of cross-cultural awareness and understanding, and without it, all the training in interest-based negotiations in the world won’t yield successful results.” 486  Even though northern Aboriginal claims settlements are, in many ways, different from the southern modern treaties, the principles on which the Yukon negotiations were based are relevant and should be followed in other negotiations involving First Nations and Canadian governments.  B.  Strategies to Improve the Existing Process  483 at 68. 1bid, 1b1d, at 68-69. 484 1bid, at 69. 485 486  113  This Chapter has examined some of the problems with the federal government land claims policies and processes, and discussed the difficulties arising from the cultural differences and the disparity in the relative power of the parties. I will now explore some strategies to improve the process in order to achieve fair and expeditious settlements of land claims.  1.  Pre-Negotiation Strategies  1.1  Redressing the Power Imbalance  In the past, Aboriginal groups have used different strategies to redress bargaining power inequalities. For instance, Aboriginal groups have resorted to tactics of confrontation. They have organized demonstrations and engaged in other “nuisance” activities in order to maximize the interests of governments in settling claims. 487 These actions have generally been successful in moving Aboriginal issues to the centre of the national agenda. 488 John Borrows is of the opinion that “...political action will be the most successful strategy First Nations can employ to contest the oppression of their governments and reinvigorate the obligations of the power they possess.” 489  The courtroom has also been used to correct a disparity in the balance of power. Some Aboriginal leaders feel that they should litigate first to have their rights affirmed and quantified, in order that they might sit with greater political power at the negotiation table. ° The setting of precedents can induce governments 49 to 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 of coalition by trying to build alliances with other interested parties to the negotiations such as building -  understanding and friendship with municipalities, corporations and industries. The power of principles should also be used in promoting fairness in an attempt to influence the public opinion. There is always  487  Colvin, supra note 54, at 17. Fleras & Elliot, supra note 63, at 86. 489 Borrows, supra note 190, at 7. 490 Brienza, supra note 172, at 172. 488  114  the power of information which can be utilize by First Nations with their knowledge of their histoiy and a 491 good preparation to the negotiation.  1.2  Land Claims Policies  The policy-making process must change for allowing meaningful participation of Aboriginal people in the fonnulation of land claims policies. As mentioned earlier, the power of the federal government to unilaterally develop land claims policies is unfair, since it can and does formulate policies which operate in its favor. Thus, the goals and purposes of negotiations, as well as the agenda for negotiations, should be decided by both parties. Further, in formulating land claims policies, the government must be willing to consider alternatives to extinguishment. As discussed earlier in this chapter, the requirement of extinguishment has been and remains a major impediment to resolving comprehensive claims. The Report 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, it must be acceptable to the aboriginal people concerned, for their rights cannot be altered without their consent. Secondly, to encourage investment in, and development of, property rights, it must enable the granting of secure rights to lands and resources. Thirdly, it must be simple, because complex approaches promote legal uncertainty. Fourthly, it must be familiar, so that rights can be defined to fit comfortably into the dominant property law system. 492  Finality may not be realistic but certainty could be achieved through the establishment of a better relationship between the parties and a long-term “social contract.” 493 This was also the view of Lloyd Barber in 1977 when he stated “I would urge the Government and native people to strive for an agreement which is flexible enough to permit the necessary positive evolution. I don’t think anyone can draw out a detailed master plan for the future, and the settlement terms should provide the greatest possible latitude for change. Rigidities may only lead to a new set of problems.” 494  491  NOTE: These advice were given by Professor Susskind, Director, MIT Harvard Public Disputes Program at Harvard Law School at the Conference Land Claims in Canada: Beyond the Rhetoric A Debate 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 and histories of the aboriginal and non-aboriginal communities within a settlement area.” Supra note 22, at 8. Commissioner, supra note 67, at 45 and 50. -  -  115  1.3  Conflict of Interest  The federal government should not be able to unilaterally decide which claims to negotiate, as this gives it an unfair advantage over the claimants. The conflict of interest must be resolved. In any dispute, it is illogical to have the opposing party decide whether or not the claim against it is valid. Decisions as to which 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 and pursue negotiations should cease to be administered by the federal government. The funding process must allow First Nations to have adequate and secure funding as well as the integrity of making their own decisions about their research priorities.  1.4  Building Trust  Considering that the First Nations and governments are unlikely to trust each other at the beginning of  any negotiation, the development of safeguards is needed to compensate and to help building a more trusting relationship between the parties. Different means can be used to accomplish this, such as replacing trust by a firm commitment to the process, creating several procedural rules, defining in a joint protocol important terms (such as consultation), implementing parts of the agreement as they are negotiated in order to test the good will of the other parties to comply with the agreement. 495 The Indian Commission of Ontario has also suggested that “[firom the time of initial submission of a claim until completion of the negotiation for compensation, all parties should submit to the negotiation, including complying with reasonable deadlines, being bound by admissions, and negotiating in good faith.” 496  2.  Procedural Issues  2.1  Flexibility  496  NOTE: For instance, the term “consultation” was defined in the Yukon Umbrella Agreement. ICO (1990), supra note 39, at 101.  116  In order to redress inequality of power, it is essential that no party be in a position to dictate to the other what the fundamental issues are to be discussed during the negotiations. The land claims process must be flexible 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 compromising on fundamental cultural and spiritual issues, single-issue settlements should be possible, which may either stand alone, or be incorporated into any subsequent comprehensive settlement. 497  2.2  Interest Based Negotiation  The process should be designed to encourage the parties to engage in integrative bargaining rather than competitive 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 options which they sincerely believe all parties could live with, to do collective research, and to use “one neutral draft” to formulate an agreement. 498 Further, considering that the parties are unlikely to be prepared to make any compromise in relation to their values or their legal rights, the focus should then be on negotiating in respect of their respective behaviour and performance. This approach requires an early acknowledgment and acceptance of each party’s view of their values and legal rights. It also requires the recognition of the legitimate aspirations and limitations of the other parties. “All parties must adopt a fresh solution-oriented approach, unencumbered by the past.” 499  2.3  Third-Party Interests  It has been recognized that if a settlement is to be successful and respected, it must be accepted in some measure by third-parties in addition to the parties at the negotiating table. Therefore, without making land settlements based on valid rights subject to the public opinion, there needs to be some involvement of the parties affected by a proposed agreement. However, it must be noted that even when specific interest  497 at 31. 1b1d, ICO (1994), supra note 152, at 52. NOTE: The ICO reports that progress in claims negotiation is often slowed down by personality conflicts. ICO (1994), supra note 152, at 31.  498  117  groups are being consulted regarding the details of a proposed agreement, they often lack the basic historical background to assess the fairness of such agreement. Therefore, there should firstly be some public education to inform all Canadians about the general legal, constitutional and historical aspects of land claims issues. There should then be consultations with third-party interests on proposed agreements to ensure a fair representation of their concerns at the negotiation table and to allow for the building of a new relationship between Aboriginal and non-Aboriginal society.  2.4  Dispute Resolution Mechanisms to Break Impasses  Prior to substantive negotiations, the parties should agree upon mechanisms to resolve disputes which may arise during negotiations and which the parties are unable to resolve themselves. Provision could be made, for example, for unresolved conflict to be dealt with by mediation or arbitration. Many commentators have suggested the creation of an independent body which would supervise the negotiations by setting timeframes and deadlines and would have adjudicating powers when the parties are unable to reach 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 an investigatory role, could also be used in conjunction with negotiation. Findings and/or recommendations would 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 discussed in Chapter Five of this thesis.  2.5  Interim Measures Agreements  It is also recommended that interim measures agreements be agreed upon, either before or during substantive negotiations, to protect an interest being currently affected as it could undermine the ° 50 process.  1b1d, at 63. 500  118  2.6  Implementation  The implementation of settlement agreements should also be agreed upon during the substantive ’ This would diminish the risk of future conflict by making all parties accountable for their 50 negotiations. commitments. This would also contribute, in the long run, to building trust between the parties.  3.  Cultural Understanding Developing a Language of Perspicuous Contrast -  In developing strategies to improve negotiations between Aboriginal and Euro-Canadian governments, cultural differences must receive particular attention. According to Monture, there are two things that must be understood when exploring cultural differences. First, “[t]he ways of First Nations cannot be understood or explained at a glance. And second, that these ways are not the same as the ways known to 502 She also stated that “...the source of misunderstanding between Canadians and the ‘dominant society’.” Aboriginal people is often the result of an inability to communicate across the different world views.” 503 In order to bridge the gulf that divides Aboriginal and Euro-Canadian society, 504 Euro-Canadians must consider the preliminary assumptions underlying their beliefs and ideas. These assumptions shape the content of the Euro-Canadian way of thinking.  505  This reevaluation is necessary before any other step is  taken to change the relationship between Aboriginal and non-Aboriginal peoples. Borrows explained the two steps of developing a language of perspicuous contrast: In generating a language of perspicuous contrast, one neither speaks wholly in the language of the dominant society nor does one speak fully in the language of the suppressed. The language of perspicuous contrast incorporates perspectives from both cultures and requires that I question my own perspective while simultaneously challenging the other. The distinctions revealed in this process underscore and accentuate where confusion, misinformation or self-contradictions exist in our shared universe. A blending and mingling of perceptions will produce a language which will neither be fully Native, nor will it be entirely “western”. The testing of each perspective against the other creates a new language because it allows for the critique and incorporation of conceptions from diverse cultural understandings. 506  501  Jbid, at 30. Monture (1991), supra note 208, at 355 503 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. 502  119  In the negotiation context, Aboriginal cultures could be legitimized and empowered by giving recognition to cultural differences and by developing a language of perspicuous contrast. By focusing on cultural differences, the emphasis moves away from ethnocentrism to cultural wealth and diversity. This could be translated in practice by conducting negotiations on the community lands as often as possible as it promotes cultural understanding and facilitates consensual decision-making. Further, negotiations should be less formal and should be complemented by some social interaction in order to cultivate a positive relationship and increase the trust between the parties. In fact, it has been suggested that familiarity and liking are significant factors in ensuring flexible and successful negotiations. 507  Conclusion In this chapter, I have attempted to examine the principal difficulties with the land claims negotiation process as set up unilaterally by the federal government. The application of adversarial negotiation strategies contributes to disempowering Aboriginal groups. The control of the goverument over the development of land claims policies, the acceptance of claims to be negotiated and the funding for First Nations 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 the bargaining power of Aboriginal groups and avoid any form of conflict of interest. In this chapter, several suggestions were made to answer some of the procedural and substantive problems with the present negotiation process and improve the relationship between Aboriginal and non-Aboriginal societies. The development of a language of perspicuous contrast could be an ideal approach to encourage Euro Canadians to question the preliminary assumptions underlying their beliefs and ideas and legitimate Aboriginal 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 the differences in culture.  507  D. Druckman and B.J. Broome, “Value Difference and Conflict Resolution” (1991) 35 Journal of Conflict Resolution 571 at 572.  120  CHAPTER FOUR  MEDIATION AND ARBITRATION  It has been suggested that the limitations of negotiation and the inherent problems of litigation provide a structural explanation for the existence in most societies of some institutions of more informal third-party intervention in dispute-resolution. 508 This Chapter will examine the theories of mediation and arbitration and 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 this dispute resolution mechanism. Part II will discuss the use of arbitration and the combination of mediation and arbitration to resolve Aboriginal land claims. Finally, Part III will assess the appropriateness of these processes to resolve the land question in Canada.  Part I  Mediation  A.  Theories of Mediation  1.  Definition  Mediation is generally understood as an informal process in which a neutral third party with no power to impose a decision helps the disputing parties in reaching a mutually acceptable settlement. 509 The main role of the mediator is one of exchanging information and bargaining. The mediator may assist disputants towards agreement by, for example, identifying their areas of common interest and suggesting terms or directions for a mutually acceptable compromise. ° The mediator may also assist in defining and drafting 51 the 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 work effectively. Unlike litigation where legal discourse dominates, mediation may involve other values and concepts such as fairness, morals, and ethical concerns. This common description captures some of the  508  R. Schwartz and J. Miller, “Legal Evolution and Societal Complexity” (1964) 70 Am. I. Soc. 159. Moore, supra note 369, at 14; Roth, Wulif and Cooper, supra note 309, at 23:3; Nolan-Haley, supra note 167, at 56. 510 Colvin, supra note 54, at 6. 509  121  major characteristics of the process, especially its informality and consensuality. It also reflects the view that 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 still debates among practitioners and academics about its exact parameters and appropriateness in various 512 Moreover, mediation has been used in Canadian Aboriginal societies for hundred of years and settings. mediation 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 much stronger focus on healing and rebuilding the relationship that existed before the dispute than in the general North American model of mediation. 513  2.  Types of Mediation  The literature on mediation has identified two types of mediation: rights-based and interests-based 514 In the rights-based model, the process is influenced by what the parties believe would be mediation. available to them in a court of law. In this type of process, there is more focus on the immediate dispute rather 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 the other hand, interest-based mediation attempts to help disputing parties understand the underlying needs and interests of the other party. This approach is more focused on the underlying conflict which gave rise to the dispute between the parties.  3.  Transformative Potential  511  R A. Baruch Bush and J. P. Folger, The Promise of Mediation Responding to Conflict Through Empowerment 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. -  122  Practitioners and scholars have started to explore some other effects of mediation apart from settlement It is suggested that the mediation process contains within it “a unique potential for transforming  per Se.  people engendering moral growth by helping them wrestle with difficult circumstances and bridge -  -  human differences, in the very midst of conflict.” 516 This transformative potential comes from the capacity 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 their own capacity to handle life’s problems.” 517 Empowerment does not mean redressing the imbalance of power within the mediation process itself in order to protect weaker parties. 518 Similarly, empowerment does not mean controlling or influencing the mediation process so as to produce outcomes that redistribute resources or power outside the process from stronger to weaker parties. 519 Finally, empowerment does not mean increasing the power of either party by becoming an advocate, adviser, or counselor. Bush and Folger suggest rather that “the objective of empowerment does not require or support the mediator’s taking sides, expressing judgments, or being directive. In fact, empowerment in a transformative approach to practice requires avoiding all these behaviors.” 520 Thus, this potential effect of mediation means empowering each of the parties so that they can each optimize their strength and feel confident in their value.  3.2  Recognition  According to Bush and Folger, recognition means “the evocation in individuals of acknowledgment and empathy for the situation and problems of others. Recognition means giving recognition to another, not getting it from another.” 521 Recognition does not necessarily mean reconciliation nor does it mean the  516  and Folger, Ibid, at 95. 1bid, at 95-96. 518 1bid, at 96. 519 520 Ibid. 521 Ibid. 517  supra  note 511, at 284.  123  mere realization of one’s enlightened self-interest. The purpose of recognition is abandoning  “. .  .one’s  focus on self and becoming interested in the perspective of the other party as such, concerned about the situation of the other as a fellow human being, not as an instrument for fulfilling one’s own needs.” 522  4.  Attitude of the Mediation Movement  It 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 of mediation is realized. 523 Slowly, the mediation movement is starting to realize how important the effects of empowerment and recognition really are. According to Bush and Folger, The broader significance of these phenomena is becoming clearer as dispute resolution scholars see that mediation’s transformative dimensions are connected to an emerging, higher vision of self and society, one based on moral development and interpersonal relations rather than on satisfaction and individual autonomy. Scholars and thinkers in many fields have begun to articulate and advocate a major shift in moral and political vision a paradigm shift from an individualistic to a relational conception. They argue that, although the individualist ethic of modern Western culture was a great advance over the preceding caste-oriented feudal order, it is now possible and necessary to go still further and to achieve a full integration of individual freedom and social conscience, in a relational social order enacted through new forms of social processes and institutions. 524 -  -  it is also argued that the goal of transformation is even more important because it is one that only the mediation process is capable of achieving. Other dispute resolution processes, such as litigation or arbitration, “...are far less capable than mediation (if at all) of fostering in disputing parties greater strength and compassion, and thus of achieving moral growth and transformation.” 525 As a result, some see transformation as the most important goal of mediation, since this valued goal is one that mediation alone can achieve.  522 at 96-97. 1bid, 523 Ibid at 2-3. NOTE: “Some have even come to realize that working for empowerment and recognition usually results in reaching settlement as well, while focusing on settlement usually results in ignoring empowerment and recognition. So, while these different dimensions of mediation are not necessarily mutually exclusive or inconsistent, the relative emphasis given to them makes a crucial difference.” 1bid, at 3. 524 Ibid, at 30-31. 525  124  Although mediation provides a unique opportunity for achieving empowerment and recognition, it appears that the mediation practice has not yet realized that potential. Substantive evidence suggests that mediation 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 rather than as a result of mediators’ conscious efforts.” 526  B.  Mediation in the Context of Aboriginal Land Claims  1.  Advantages and Disadvantages  The mediation process could be beneficial to the parties involved in Aboriginal land disputes. Mediation process is generally viewed as more expeditious, inexpensive, and procedurally simple than adversarial 527 Moreover, as suggested by Durocher, “[i]n addition to being a liaison dispute resolution mechanisms. between the parties in narrowing dowii their differences, the third party can act as a sounding board for the frustrations of either side and can eliminate the need for the parties to vent their frustrations face to 528 As Professor Lon Fuller stated, mediation has the “capacity to reorient the parties toward each face.” other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will direct their attention toward each other.” 529 Mediation has also a great potential as an empowering process, the parties having autonomy and control over the outcome of the process. 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 to the dispute are present. Third parties might not be present or represented at the mediation sessions where issues affecting them are being discussed and resolved. Moreover, many authors suggest that mediation  526 at 4. 1bid, Nolan-Haley, supra note 167, at 57. 528 Durocher, supra note 20, at 53. 529 Quoted in Nolan-Haley, supra note 167, at 58. Brienza, supra note 172, at 177-178. 530  527  125  works best where there is equal bargaining power on both sides. ’ It is suggested that “[b]y far the most 53 difficult problem mediators face regarding relationships is the instance in which the discrepancy between the strength of means of influence is extremely great.” 532 Thus, given the imbalance of power between the First Nations and the governments, there could be some difficulties in using mediation in the land claims context. 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 of power  -  to try to redress the imbalance of power between First Nations and governments in the mediation  forum. However, there exists a debate among mediators concerning the risk of assistance or possible empowerment of the weaker party by the mediator. One school states that a mediator has an obligation to create just settlements and must therefore help empower the weaker party to reach equitable and fair agreements while another school argues that mediators should not do anything to influence the power relations of disputing parties because it taints the intervenor’s impartiality. As stated by Moore, “[t]here is no easy answer to this strategic and ethical problem, but it does have an important impact on the types of moves a mediator initiates.” 533  Finally, it has been suggested that the mediation model can not be exported wholesale to another cultural setting. 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 in multicultural settings. There are limitations to the usefulness of third-party neutrality; certain widely taught active listening skills; and the bias toward direct, face-to-face negotiation.” 534 Therefore, some academics contend that the promise of mediation as the appropriate model for resolving disputes in multicultural contexts will only be realized if fundamental questions about the cultural dimensions of mediation are addressed. 535  531  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. 1b1d, at 34-3 5; See also LeBaron Duryea, supra note 14, at 20. 533 Lund, supra note 1, at 5. See also LeBaron Duryea, supra note 14, at 21. LeBaron Duryea, supra note 14, at 12-13.  126  2.  Experiences with Mediation in Canada  Mediation 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 in Canada by various non-Aboriginal governments and Aboriginal groups to address multi-party issues. 536 In 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 of both parties to understand the cultural interests affected by the dispute. Mediation represents an effective instrument for such communication. (...)This successful experience with mediation leads me to conclude that in a dispute between Indian people and governments which requires effective communication and which has it premise that the resolution must be mutually acceptable to all of the parties, mediation is preferable to such other alternatives as reference to a third-party tribunal. An arbitrator or a court would impose a solution to the problem and would have less discretion in the matters that could be included in a solution. 537  Moreover, mediation has been adopted as a dispute resolution mechanism in the Yukon Umbrella Final Agreement. Under that agreement, the parties must agree on the choice of a mediator. In addition to assisting the parties come to their own agreement, the mediator may, upon his/her own discretion, or must, at the request of the parties, provide a brief non-binding written recommendation to the parties. 538  The Indian Commission of Ontario (ICO) also uses the mediation process as part of its functions. As mentioned in Chapter One, the ICO was created in 1978 to operate as a neutral and independent Tripartite Council comprised of the First Nations Chiefs of Ontario and representatives from the federal and provincial governments. The mandate of the Commission is to provide a forum for the negotiation of land claims (specific claims only) and to deal with questions relating to Aboriginal self-government. To  536  G.B. Sloan, Mediation in Multi-Party Settings (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 1. L. Mitchell, “Using Mediation to Resolve Disputes over Aboriginal Rights: A Case Study” in The Questfor Justice: Aboriginal People and Aboriginal Rights (Toronto: University of Toronto Press, 1985) 286 at 289. 538 Yukon Umbrella Final Agreement between the Government of Canada, The Council for Yukon Indians and the Government of the Yukon, May 30, 1990 [unpublished] at 274-275.  127  fulfill its mandate, the Commission chairs negotiating meetings, both in Toronto and on reserves, and monitors progress in negotiations. 539 The functions of the Commission also include providing resources to the parties, assisting in resolving procedural matters, and arranging for professional dispute resolution services 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 deadlines for the completion of any process, ask questions and request responses from the parties, and adjourn negotiations. The Commission also has the power to recommend a formal inquiry into a matter as a way of 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 to yield results than exercising authority to suspend negotiations or ordering parties to attend a meeting at which they are not prepared to make progress. Further, in some cases where the ICO has considered it appropriate to use its powers to assist negotiations (for example, to arrange non binding arbitration to advance an issue), the Ontario and federal governments have refused to provide their consent. 540  The ICO’s preferred mechanism for assisting the parties in negotiations is through mediation. The ICO suggests that a mediator can help the parties find common and creative solutions in the following way: ’ 54 (1) (2) (3) (4) (5) (6)  (7)  (8) (9)  by monitoring each party’s undertakings in negotiations; by discouraging the parties from taking an adversarial or positional approach, and encouraging them instead to propose solutions which take into account all parties’ underlying interests; through private discussions with each party, by encouraging them to reflect upon the wisdom and realism of positions they bring to the negotiation table; by suggesting options the parties may wish to consider that the negotiators themselves may not be authorized to volunteer; by co-ordinating neutral and independent research on behalf of all parties, rather than witnessing negotiations degenerate into a wasteful and costly battle of each party’s experts; 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 proposed agreements; by retaining independent, respected experts to offer their recommendations on issues over which the parties disagree, forcing each party to reconsider preliminary and self-serving positions they may have tabled; by calling the attention of the parties and the public to long-standing issues which the parties have failed to resolve; by maintaining, through its chairmanship of negotiations, an atmosphere of respect and creativity among the parties; and  539 supra note 3, at 72. AnAgendaforAction, 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 where requested by the parties and where this may eliminate procedural barriers to successful negotiations.  Despite its role in helping in the resolution of Aboriginal disputes, the ICO has no power to compel performance or attendance by governments, neither can it impose decisions on the parties. This means that negotiations will proceed only when governments will accept to cooperate. According to Colvin, the Commission .lacks the established institutional framework which could facilitate the speedy and effective processing of large numbers of claims, the authority to bring pressure to bear on recalcitrant parties, and the coercive powers in reserve to provide an incentive for compromise. It is mediation as a variation on direct negotiation rather than mediation as a genuine alternative in 542 dispute-resolution.  In 1990, after identifying the limitations of its mandate, the Commission made several recommendations to 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 one party wishes to review the bonafides of the other party’s commitment to resolve the issues fairly and expeditiously, the Commissioner should be given the discretion, where formally requested and where the Commissioner considers it necessary and appropriate, to review the conduct in question and make a finding on this issue for the benefit of the parties involved. 543  Moreover, in light of the refusal of the federal and Ontario governments to participate in non-binding arbitration and neutral studies to break impasse in negotiations since 1986, the Commission concluded that 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 (where possible) mutually-agreed upon arbitrators or fact-finders in land claim negotiations. The views of such experts would not be binding on the parties and would be sought wherever an impasse over a legal or factual issue has, in the opinion of the Commissioner, caused an undue delay in the negotiations. 544 • .  Unfortunately, the recommendations made by the ICO in 1990 have not created the changes in the ICO’s mandate 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 32 Ibid, at 42-43.  129  Another independent Commission is also mandated to use mediation to resolve issues arising from land claims. As mentioned in Chapter One, the federal government established in 1991 the Indian Claims Commission (ICC) as an interim measure to deal with specific claims disputes. The Commission’s mediating role is defined in broad terms. The Commission has authority to “provide or arrange, at the request of the parties, such mediation services as may in their opinion assist the Government of Canada  and an Indian Band to reach an agreement in respect of any matter relating to an Indian specific 545 The Commission reports that claim.” .mediation is intended to facilitate negotiations in the manner the parties deem appropriate. It is therefore not possible to define and thus predetermine the specific nature of mediation activities. Rather, the Commission views mediation as a process that responds to the local conditions of a specific negotiation. Appropriate forms of mediation are regarded as those that are (1) bicultural, (2) informal, (3) non-threatening, and (4) flexible. Any mediation service 546 offered by the Commission is based on these four criteria.  According to Turpel, the ICC has, with only a few years’ experience, established credibility and developed expertise on cross-cultural mediation and negotiation. 547 However, concerns have been expressed that the mediation capacity of the Commission is being overlooked because it has no “teeth” to supervise negotiations except by the consent of the parties and its decisions are not binding. The ICC has no power to ensure that negotiations proceed in a timely or fair manner, nor does it have the power to assist the parties to break impasses. The ICC reports that it has received numerous requests from First Nations for mediation but very few from Canada and it seems that Canada is generally reluctant to agree to mediation when requested by a First Nation. According to the Commission, one of the primary reasons for this is due to: .an inherent bias in Canada’s claims policy which presumes that mediation is appropriate only in exceptional circumstances. Despite statements from Canada’s representatives to the effect that they are prepared to use the Commission’s mediation services, DIAND has traditionally been 548 very inflexible in its assessment of when mediation is appropriate.  R. Maurice, “The Indian Claims Commission and Alternative Dispute Resolution” (Discussion Paper prepared for the Land Claims in Canada: Beyond the Rhetoric A Debate About the Critical Issues (National Conference, Toronto, June 26-27th, 1996) at 1. 1C0 (1994), supra note 152, at ix. 546 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] -  130  The Commission also noted another reason why Canada has often rejected ICC’s mediation requests. It appears that “...Canada has suggested (at least informally) that they perceive the Commission as being biased in favour of First Nations.” 549 Finally, the ICC also noted that one of the difficulties in obtaining Canada’s consent to mediation might be that there is no formal mechanism in place to properly assess the request to determine whether it is appropriate for mediation. ° 55  On June 27th, 1996, the five Commissioners presented a letter of resignation to Prime Minister Jean Chrétien and national Chief Ovide Mercredi. In their letter of resignation, the Commissioners explained that 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 the activities of the Commission will end March 31, 1997. The Commissioners have also mentioned that they will table “if necessary” a special report in October with recommendations for an independent claims ’ It is therefore up to the government to fulfill its election promise of 1993 and create an 55 body. independent claims Commission with a meaningful mandate. The future of the ICC remains highly uncertain to this date.  Part II  Arbitration  A.  Theories of Arbitration  1.  Definition  In arbitration, the parties present their cases to a neutral third-party person or panel who has the power to render a decision which could be either binding or non-binding on the parties. Contrary to court proceedings, arbitration can involve other considerations than law if all parties agree. Procedures are also controlled by the parties, and can be more flexible than in a court of law. The parties themselves can select the arbitrator(s). As noted by Nolan-Haley, “[a]rbitrators typically have more expertise in the  Maurice, supra note 545, at 2. 550 at 5; ICC Annual Report 1994/1995, supra note 548 at 9 and 13-15; Indian Claims Commission, Jbid, 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.  131  specific subject matter of the dispute than do judges. They also have greater flexibility in decision-making since they are not bound by the principle of stare decisis in rendering a decision. In fact, arbitrators are not even required to give reasons to support their awards.” 552  2.  Types of Arbitration  Arbitration can be classified as either interest arbitration or rights arbitration. 553 Interest arbitration involves 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-Arbitration  The process of “med-arb” is a two-step process. Typically, the first step involves mediation of the issues and 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 binding decision which includes the agreements arrived at during the first step mediation together with the -  -  decisions resulting from the second step arbitration. This process is seen as giving the parties the extra -  incentive to settle because they know that the mediator will become the arbitrator if settlement is not 554 reached.  There are a number of variations on the med-arb process. For instance, parties can opt to start arbitration proceedings and allow for mediation at some point during the arbitration. It is also possible to mediate some issue and arbitrate others. Parties can choose to mediate, then arbitrate some unresolved issues, then return to mediation. Further, some may decide to mediate, if unsuccessful ask for an “advisory opinion” by the mediator which is binding as an award unless either party vetoes the opinion within a limited period of 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.  132  coupled with limited argument, following which the mediator turned arbitrator who must choose one or other of the offers. 555  B.  Arbitration in the Context of Aboriginal Land Claims  1.  Advantages and Disadvantages  The arbitration process could give settlements on land claims some degree of finality. Arbitration also offers some flexibility of process and procedure and allows for the parties to decide on the degree of formality which will govern the arbitration. However, the major shortcoming of arbitration is that it is an adversarial process which creates a win-or-lose situation where the winner takes all. The arbitration process can also disempower disputants by taking control of outcome out of the parties’ hands and by necessitating reliance on professional representatives. Many also contend that arbitration suffers many of the disadvantages of litigation, such as costs, delays, and lack of suitable remedies.  2.  Experiences with Arbitration in Canada  Arbitration has not been used to resolve many land claims in Canada to date. In fact, as noted by the Indian Commission of Ontario, governments tend to refuse to participate in binding and even non-binding 556 arbitration to resolve difficult questions in relation to a land claim.  However, 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 the Council for Yukon Indians, a provision is made for disputes arising from the Agreement to be submitted to mediation. In the event that mediation fails to resolve the dispute, the matter is referred to arbitration.  D.C, Elliot, “MedlArb: Fraught with Danger or Ripe with Opportunity!” (1995) 34 Alberta Law 555 Review, No.1, 163 at 164. ICO (1994), supra note 152, at 42. NOTE: The ICO reports that in the early 1900’s, a procedure of international arbitration was used by the Cayuga Indians living at Six Nations to recover treaty annuities from the U.S. govermnent which had remained unpaid after the war in 1812. The claim was lodged in 1882 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 been awarded. ICO (1990), supra note 39, at 7.  133  The decision of the arbitrator is final and binding on the parties and is not subject to appeal or to judicial review unless it is alleged that the arbitrator failed to observe a principle of natural justice or otherwise 557 acted beyond or refused to exercise jurisdiction.  Despite the limited use of arbitration in Canada to resolve Aboriginal land claims, some commentators have 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 labour management and has applied his findings to the Aboriginal claims context. 558 He concludes that arbitration 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) interest arbitration for compensation decisions; and (3) combined mediation-arbitration where an independent person is engaged first as a mediator to assist the parties to come to their own agreement, failing which the 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 the overall claim. 559 In fact, the arbitration literature indicates that this process works best when a single issue 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 the context of Aboriginal land claims. It could be argued that labour organizations generally have more bargaining and political power that Aboriginal groups since they have the force of threatening strikes and lock-outs. However, this distinction might not be so significant since First Nations can gain bargaining  Yukon Umbrella FinalAgreement between the Government of Canada, The Council for Yukon Indians and 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. 1bid, at 363-364; McCallum, supra note 13, at 62-63. 559 560 S.B. Goldberg, F.E.A. Sander & N.H. Roger, Dispute Resolution, Negotiation, Mediation, and Other Processes, 2d ed. (Toronto: Little, Brown & Co., 1992) at 200.  134  power by threatening to resort to political action or by referring a claim to the courts. I would therefore submit that the most significant difference between labour disputes and land claims is that labour dispute negotiations are not final in the same sense as treaty negotiations because renegotiation of certain matters subsequent to labour agreement is possible where renegotiation might be almost impossible after a treaty has been signed considering the government’s goal to achieve finality and certainty. ’ 56  Part UI A.  Appropriateness of Mediation and Arbitration The Med-Arb Approach  There is a role for arbitration and mediation to play in the overall process of resolving Aboriginal land claims. I would submit that the process of med-arb would be appropriate to deal with Aboriginal land claims. A combination of approaches, in which neutral third-parties would be oriented primarily towards mediation, but would have powers of adjudication in reserve through arbitration to put pressure on the parties to settle, could be used to resolve these disputes. The med-arb process would bring the following benefits in the resolution of land claims: (1) the mediation component would offer a chance to the parties to resolve the land dispute while retaining control of the decision; (2) if the parties fail to resolve the dispute through mediation, the arbitration component would provide a clear end point, usually within a reasonably acceptable time frame, within a process than can be designed by the parties in dispute, and with a decision maker of the disputants’ choice; (3) the time spent in mediation serves as a means of giving the mediator enough information for a decision to be made, so time is not “wasted” in a subsequent arbitration hearing; (4) the process is relatively informal and can be designed to suit the specific needs of 562 The quality of med-arb the parties, the result comparatively speedy, and the costs controllable. settlements is seen as the primary advantage of this approach “either because it is entirely or partially resolved through the mediation part of the process, or because the award is more likely to be in line with the needs of the parties as a result of the enhanced knowledge that the mediator/arbitrator has by 563 participating in the mediation process.”  561  Morse, supra note 558, at 348-349; McCallum, supra note 13, at 63. 562 Elliot, supra note 555, at 164-165. DC 1bid, at 171. 563  135  B.  Approach and Procedures  The mediator should be encouraged to focus on the transformative dimension of mediation by providing greater empowerment of parties in restoring their sense of their own value and strength and their own capacity to handle life’s problems. This effect would be greatly beneficial for First Nations. The focus on the 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 and governments: (1) the parties must recognize each other’s histories which also include a validation of each other’s traditions; (2) each party must recognize fault; (3) strengths should be lavishly recognized by noting and encouraging each other’s cultural gifts and accomplishments in order to craft joint solutions by sharing the power of their strengths; (4) the parties should recognize the depth of the challenges of intercultural negotiation based in value differences and the transitions which each party has to make to reframe its concept of the other. 564 Some of these elements might be difficult to recognize since politicians and government generally reject their own traditions of treatment of First Nations and refuse to admit any fault since injustices occurred during colonization.  The parties should however try to negotiate with each other as people and cultures, not as stereotypes. To do so, Sloan suggests to “check out preconceptions about each other and allow themselves to experience the difference between the other they imagined and the other they are negotiating with.” 565 Michelle LeBaron Duryea suggests that one way to address deep cultural differences is through the incorporation of visual and experiential rituals into conflict resolution process. In the context of native culture, she recommends the incorporation into a process of the sweetgrass ceremony or drumming, or the incorporation of the symbolism of the medicine wheel into the mediation process. 566 However, I would submit that any attempt to incorporate cultural elements into the dispute resolution process should be 564  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. 1bid, at 9. 565 566 LeBaron Duryea, supra note 14, at 43. -  136  carefully weighted to avoid stereotyping Aboriginal culture as purely “traditional” culture. Thus, I would suggest that the bicultural elements of the process should be chosen by each First Nation involved in a dispute and the process should be flexible enough to accommodate for any “cultural” addition to the dispute resolution mechanism at any time.  Thus, the med-arb process represents a balance between two approaches which both bring important benefits in the Aboriginal land claims dispute. As stated by Colvin, “[a]rbitration could secure the parties’ confidence in the intervenant and ensure that the adjudicative process is adapted to the distinctive features of Indian claims. Mediation, on the other hand, would give more scope to opportunities for a negotiated settlement.” 567 However, Colvin conceded that neither of these processes could be expected to have a widespread success ifjurisdiction depends wholly on the consent of the parties. He therefore suggests 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 be possible to use a team of mediator-arbitrator, comprised of Aboriginal and non-Aboriginal neutrals. In fact, as noted by Michelle LeBaron Duryea, “a single intervenor may not meet parties’ needs where conflicts are complex and cultural factors play prominently, or when a conflict involves parties from different cultural backgrounds.” 568 Co-mediators have been used in the past in cases of unusual complexity, in cases where a specific expertise is needed for resolving the dispute, and in cases involving 569 In the context of Aboriginal land claims, the cases are generally very complex, a multiplicity of parties. they involve at least three parties (which could be more if third-party groups were represented at the table), and all claims require a deep understanding of the issues from both an Aboriginal and nonAboriginal perspective, to work efficiently with the parties. Moreover, the team of mediators-arbitrators  567  Colvin, supra note 54, at 27. Lund & al., supra note 1, at 6. 569 A.P. Ordover, G.M. Flores and A. Doneff, Alternatives to Litigation: Mediation, Arbitration, and the Art ofDispute Resolution (Notre Dame, Indianna: National Institute for Trial Advocacy, 1993) at 93. 568  137  should be appointed by agreement of the parties to give them direct involvement in choosing the intervenants and determining the procedures by which they would operate. These neutrals should be chosen 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 technical skills; and finally (4) their knowledge and awareness of their own biases and values and the importance of respecting differences. 570  Conclusion This chapter has examined two dispute resolution processes which have not been used in the context of Aboriginal land claims as often as other mechanisms such as litigation and negotiation. The mediation process is generally viewed as more expeditious, inexpensive, and procedurally simple than adversarial dispute resolution mechanisms. More importantly, it has been suggested in recent literature regarding the potential of mediation that this process provides a unique opportunity for achieving empowerment and recognition. In the context of Aboriginal land claims, the transformative potential of mediation through empowennent could be beneficial to First Nations to restore their own value and strength. The recognition and understanding of the other party’s perspective would allow for the development of a bicultural approach in the resolution of Aboriginal land claims.  The arbitration process could also provide some benefits in resolving Aboriginal land claims as it would give 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 of these two approaches, in which a team of Aboriginal and non-Aboriginal neutral third-parties mediate the dispute (with powers of adjudication in reserve to put pressure on the parties to settle), could be successful in resolving Aboriginal land claims in Canada.  570  LeBaron Duryea, supra note 14, at 17.  138  CHAPTER FINE  EXPERIENCE WITH THREE INSTITUTIONS: A COMPARISON  Aboriginal 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 taken place in several countries and have taken several forms. Australia and New Zealand offer both historical and contemporary experiences which can inform Canadian endeavours to frame settlement mechanisms and agreements. Although there are fundamental differences in the history and society of Australia and New Zealand, Canada can still take advantage of lessons learned from past experience with different types of land claim mechanisms used in these two countries to improve its existing institutions dealing with Aboriginal claims. Canada has also seen the development of specialized institutions to deal with land claims. One of them is the British Columbia Treaty Commission established in 1992 to monitor the negotiations of comprehensive claims in British Columbia. This Commission will be analyzed with the models in Australia and New Zealand.  The purpose of this Chapter is to describe the make-up, mandates and processes used by each of these three bodies to find agreement between First Nations and governments. This Chapter is divided into three parts. In Part I, I will examine the Australian National Native Title Tribunal created to resolve Aboriginal land claims. This Tribunal was created under the Native Title Act, 1993 to give effect to the principles of the Mabo decision. Part II will explore the Waitangi Tribunal and its innovative procedures in hearing Maori claims. The Waitangi Tribunal was established in 1975 to hear, investigate and make recommendations concerning grievances from the Maori people about the many ways in which they felt the Treaty of Waitangi was not being honoured by the New Zealand government. This most original Tribunal is made up half from representatives of Maori tribes and the other half from representatives of the dominant Anglo-Saxon culture. As part of this discussion, I will also examine whether the Waitangi Tribunal 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 a First 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 Aboriginal  139  and non-Aboriginal commissioners and supervises the negotiations between governments and First Nations.  Part I  The Australian Experience  A.  Background  1.  The Concept of Native Title  Australia did not sign any treaties with its original indigenous inhabitants. ’ For two hundred years, 57 courts in Australia have denied the recognition of legal title to the land to the indigenous people of Australia. However, this changed in 1992 when six of the seven members of the High Court of Australia decided in Mabo v. The State of Queensland that “...the common law of this country recognises a form of native title which, in cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands.” 572 In that decision, the High Court rejected the view that Australia was terra nullius at the time of European colonization and recognized a form of native title to which the Crown was subject. Justice Brennan, with whom Mason CJ and McHugh J agTeed, described the doctrine of terra nullius as applied in Australia as having “a false basis in fact and as now being unacceptable in our society.” 573 Justice Brennan also said that the Court should not allow the common law to be or be seen to be “frozen in an age of racial discrimination” since this would perpetuate injustice. 574 The High Court ruled that native title may be extinguished by legislation, by the alienation of land by the Crown or by the appropriation of the land by the Crown in a 575 Three judges in Mabo also mentioned manner inconsistent with the continuation of native title. 576 Following this specifically the requirement to pay compensation for extinguishment of native title. decision, Australia had to re-think its entire understanding of the rights of Aboriginal peoples, and new  571  Durocher, supra note 20, at 46. (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, at 286. 576 Wilson, supra note 573, at 240. 572  140  policies of acceptance and engagement became necessaly. As stated by Peter Jull, “Mabo was a reminder that easy assumptions of hegemony and cultural ascendancy are misplaced.” 577  2.  Recognition of Aboriginal Title before Mabo  In Australia, much of the constitutional jurisdiction over land remains with the state governments and, as a 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 has been mostly determined by statutes at the state level. 578 Australian Federal and State governments started in 1976 to pass legislation acknowledging the legitimacy of Aboriginal land claims and providing processes for recognizing Aboriginal entitlement. 579  The first legislation was the Aboriginal Land Rights (NT) Act, 1976 passed by the Commonwealth Parliament in relation to Australia’s Northern Territory in response to the proposals of the Woodward Report for the legislative recognition of Aboriginal title. ° The Act automatically gave to the Aboriginal 58 people of the Northern Territory lands that had already been reserved for them. The Act also allowed natives to claim and hold vacant Crown land to which they could demonstrate a connection of traditional ’ A land claims process was established with an Aboriginal Land Commissioner the Judge 58 ownership. -  of the Supreme Court of the Northern Territory having the power to hear traditional land claims and to -  recommend 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 Claims Agreements (A Report prepared for the Royal Commission on Aboriginal Peoples) (September 1994) at 130; Durocher, supra note 20, at 46. 580 Aboriginal Land Rights (Northern Territory) Act, 1976. No.101 (Cth); Aboriginal Land Rights Commission (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, at 270.  141  (NT) Act did not specify any detail as to the procedure to be followed in conducting hearings, however  some directions were given to the effect that hearings should follow the model of adversary adjudication although with less formality and a liberal policy respecting the admission of evidence. 583 The Conunissioner therefore had the task of trying to balance common law principles of natural justice and complete disclosure of evidence against sensitivity to Aboriginal customs. 584 The Act stated that the reports of the Aboriginal Land Commissioner would not be binding, but rather simply recommendations to the Federal Minister of Aboriginal Affairs who would make the final decision as to whether there will be a grant of the land. 585 In January 1996, a Report on the Social and Economic Impacts of Aboriginal Land Claim Settlements prepared in Canada revealed that Australia’s past performance of land claims with the Aboriginal Land Rights (NT) Act, 1976, has not, from a resource development perspective, provided a positive example of settlement. 586  The land rights legislation for the Northern Territory became a precedent and other land rights legislations were passed by individual State governments. 587 For instance the Pitjantjatjara Land Rights Act, 1981 of South Australia was the result of negotiations between tribe and state government over a period of years. 588 Another example is the Torres Straight Island LandAct, 1991, which enables claims to be made to a Land Tribunal on the ground of “customary affiliation”. 589 This Act empowers a  583  Colvin, supra note 54, at 24. See Aboriginal Land Rights (Northern Territory) Act, 1976. Practice Directions (1977). NOTE: Direction 18 states in part: “The hearing of an application will be conducted along the lines of conventional court proceedings although with less formality.” Direction 22 states in part: “There will be no strict adherence to the ordinary rules of evidence.” For instance, Aboriginal women generally do not want any male other that the Commissioner to be present when they are giving evidence 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: Oxford University 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 Case Study Analysis cFinal Report prepared for Ministry of Aboriginal Affairs of B.C. and Federal Treaty Negotiation Office, December 1995) at 10. 587 NOTE: Other examples are: the Maralinga Tjarta Land Rights Act, 1984 and the Aboriginal Land Rights Act, 1984. Fiafljatjara LandRightsAct, 1981 No.20 (S.A.); McHugh, supra note 584, at 308. 588 589 Torres Straight Island LandAct, 1991; Jackson, supra note 579, at 132. Ú  142  Commission to negotiate and conclude agreements with the government and to grant property intere