Deal? Or No Deal? Explaining Comprehensive Land Claims Negotiation Outcomes in Canada. by Christopher Alcantara A thesis submitted in conformity with the requirements for the degree of Doctorate in Philosophy Graduate Department of Political Science University of Toronto © Copyright by Christopher Alcantara (2008) Dear or No Deal? Explaining Aboriginal Treaty Negotiation Outcomes in Canada. Christopher Alcantara Department of Political Science University of Toronto Doctor of Philosophy 2008 Abstract In 1973, the Canadian government created the federal comprehensive land claims process to negotiate modern treaties with Aboriginal peoples in Canada. Despite 35 years of negotiations, many Aboriginal groups have failed to complete modern treaties. This dissertation explains why some Aboriginal groups have been able to complete modern treaties and why some have not. After examining four sets of negotiations in Newfoundland and Labrador and the Yukon Territory, I argue that scholars need to pay greater attention to the institutional framework governing treaty negotiations and to a number of factors relative to the Aboriginal groups. ii Acknowledgements I am grateful to many individuals and organizations for helping me with this dissertation. First, I would like to thank my supervisor, Graham White, as well as my committee members, Grace Skogstad, and Frances Abele who gave generously of their time and expertise. Indeed, one could not have asked for a better committee. In particular, Graham White was extremely helpful throughout my entire time at the University of Toronto and has my deepest respect for his efforts as a scholar, teacher, administrator and supervisor. Second, I would like to thank Peter Russell and Doug McArthur for serving as my internal and external examiners, respectively. Both gave careful readings of the dissertation, which I greatly appreciated. Third, Anthony Sayers, Don Smith, George Breckenridge, Michael Stein, Simone Chambers, and Tom Flanagan were all helpful at different stages of my PhD career. This dissertation could not have been written without the participation of individuals from the federal government, the Newfoundland and Labrador government, the Yukon territorial government, the Labrador Inuit, the Labrador Innu, the Kwanlin Dün First Nation, and the Kaska Nations. Each interviewee was extremely patient and generous as I tried to learn about and understand the complexities of each of the comprehensive land claims negotiations studied in this thesis. In particular, I greatly appreciated the help from Tim Koepke, Dermot Flynn, Veryan Haysom, Anne King, Ray Hawco, Bob Pelley, Ruby Carter, Dave Porter, Steve Walsh, Hammond Dick, Liard McMillan, Eileen Van Bibber, Scott Serson, Tom Beaudoin, Jim McKenzie and Chesley Anderson, among others. Family members, friends, and colleagues are extremely important in a time consuming project such as this one. My wife, Kerry Lee Hunt, and most recently, my son, iii Kees Rafael Alcantara, have been crucial throughout this process. Rafael and Eden Alcantara, my parents, have also been important to the success of this project. I also want to acknowledge the direct and indirect support of Tony and Carmen Hidalgo, Gerry and Tessie Suarez, and Josefa and Flaviano Sagun. As well, many of my fellow graduate students have been helpful and supportive over the last five years. In particular, I am grateful to my comrades Christopher Cochrane, Jen Nelles, Amardeep “watch out for that white van” Athwal, Vincent Pouliot, and David Chandonnet. Projects such as this one cannot be completed without financial assistance. I would like to thank the Ontario Graduate Scholarship Program, the Institute for Humane Studies, the Liberty Fund, the Northern Scientific Training Program, the School of Graduate Studies at the University of Toronto, and the Labrador Institute for financial and organizational support. Finally, I would like thank Cambridge University Press for granting me permission to use material from my article, “Explaining Aboriginal Treaty Negotiation Outcomes in Canada: The Cases of the Inuit and the Innu in Labrador,” Canadian Journal of Political Science 40:1 (March 2007): 185-207, and Oxford University Press for granting me permission to use material from my article, “To Treaty or Not to Treaty? Aboriginal Peoples and Comprehensive Land Claims Negotiations in Canada,” Publius: Journal of Federalism 38:2 (Spring 2008): 343-369. iv Table of Contents Abstract ……………………………………………………………………………………..ii Acknowledgements ………………………………………………………………………...iii List of Tables ………………………………………………………………………………vi List of Appendices ………………………………………………………………………...vii Chapter 1: Explaining Comprehensive Land Claims Negotiation Outcomes in Canada …...1 Chapter 2: A History of Aboriginal Treaty Making in Canada …………………………...31 Chapter 3: An Analytical Framework ………………….………………………………….67 Chapter 4: The Innu and Inuit in Labrador ………………………………………………117 Chapter 5: The Kwanlin Dün and the Kaska First Nations in the Yukon Territory ……..176 Chapter 6: To Negotiate a Treaty or Not? …………….………………………………….248 Bibliography ……………………………………………………………………………...271 v List of Tables Table 1.1: Completed Comprehensive Land Claims Agreements since 1973 ……………...6 Table 1.2: On-going Comprehensive Land Claims Negotiations in Canada …………….....7 Table 1.3 Distribution of Government and Aboriginal Officials by Job Description ……..25 Table 1.4 Distribution of Government Officials by Level of Government and Job Description ………………………………………………………………………………...25 Table 1.5 Distribution of Aboriginal Officials by Aboriginal Group and Job Description .25 Table 3.1: Factors Relative to the Aboriginal Groups that Affect Which CLC Negotiation Outcomes are Obtained ……………………………………………………………………94 Table 3.2: Factors that Affect the Speed of CLC Negotiation Outcomes …………………98 vi List of Appendices Appendix 1 – List of Negotiating First Nations in British Columbia ……………………..29 vii Chapter 1: Explaining Comprehensive Land Claims Negotiation Outcomes in Canada Treaties have had a powerful effect on the relationship between Aboriginal and non- Aboriginal peoples in Canada (Asch 1997; Asch, 1984; Borrows, 2002; Cairns, 1999; Harris, 2002; Hicks and White, 2000; Macklem, 2001; Russell, 2000). At a conceptual level, proponents of treaty federalism (defined as “‘Indian consent’ in regard to the manner and form of our co-existence with the Queen’s white children under the Canadian constitutional framework” Bear Robe 1992, 6, 8) have argued that the relationship between Aboriginal and non-Aboriginal peoples should only be understood through the treaties that they have signed. Specifically, they suggest treaties ought to affirm that Aboriginal peoples have self-government and sovereignty over all of their traditional lands and treaties should legitimize the Crown’s right to exercise self-government and sovereignty on Canadian soil. In sum, treaties should establish the terms by which Aboriginal and non-Aboriginal peoples co-exist as sovereign nations in Canada (Henderson, 1994; Ladner, 2003). On a more practical level, treaties have been central to disputes over the ownership of some of the most valuable lands in Canada. Prime commercial and residential lands in cities like Toronto, Calgary, and Vancouver were once or remain, depending on one’s view, Aboriginal traditional lands. Aboriginal and non-Aboriginal peoples have fought over whether these lands were properly acquired through treaties, or whether such lands should be included in the negotiation of new treaties. Treaties have also played a central role in the control and development of Canada’s rich and abundant natural resources. Hydro- electricity projects, forests, mines, oil, gas, mineral deposits, and fish and wildlife have all been affected by historical and modern treaties signed with Aboriginal peoples. Finally, treaties have had a powerful effect on Aboriginal peoples themselves; some Aboriginal 1 communities have been impoverished by treaties, while others have been culturally and economically empowered by them. The treaty relationship is not a stagnant one; rather it is dynamic as a result of interpretation and implementation differences. Although some Aboriginal groups have relied on litigation to settle their differences with the Crown, many more have pursued negotiations through the federal specific claims process. This process is designed to address alleged wrongs or mistakes committed by the federal government in its interpretation and implementation of Aboriginal treaties. It can also be used by non-treaty Aboriginal groups to address the federal government’s mismanagement of Indian assets. For instance, the Blood Tribe in Alberta is negotiating with the federal government through the specific claims process for unpaid compensation for lands surrendered to the Crown in 1889. The Mississaugas in Ontario are negotiating with the federal government over the alleged invalid surrender of 200 hectares of land on the north shore of the Credit River in 1820 (Specific Claims Branch of Indian and Northern Affairs Canada, 2006: 2, 65). The Aboriginal-Crown treaty relationship has also been undergoing fundamental change as a result of Aboriginal groups signing new treaties with the Crown under the federal comprehensive land claims process, created in 1973. Under this process, Aboriginal groups that have never signed treaties with the federal government can negotiate with the Crown to clarify all interests in Aboriginal-claimed lands. Specifically, the federal government uses comprehensive