McCallum, Andrea Gaye --- "Dispute Resolution Mechanisms in the Resolution of Comprehensive Aboriginal Claims: Power Imbalance Between Aboriginal Claimants and Governments" [1995] MurdochUeJlLaw 13; (1995) 2(1) Murdoch University Electronic Journal of Law

EDITORS' NOTE: This article forms part of a Masters' thesis submitted by the author who is a Senior Case Manager for the Australian National Native Title Tribunal. Excerpts of the thesis are also in publication by the Canadian Royal Commission on Aboriginal Peoples. Any views expressed in this article are those of the author alone and should not be regarded as those of the Native Title Tribunal.

PREFACE

Aboriginal claims provide many challenges in the context of dispute resolution. Disputes between different cultures are difficult to resolve, particularly when, as with Aboriginal claims, both cultures exist within the same geo-political nation, and one culture is more powerful than the other.

The central theme of this thesis is that the enormous power imbalance between Aboriginal claimants and Euro-Canadian governments pervades every dispute resolution process employed to resolve Aboriginal claims. The particular focus of the thesis is the resolution of "comprehensive" claims, that is, claims based on traditional native use and occupancy of the land, in those parts of Canada where native title has not previously been dealt with by treaty or other means.

The dominant Euro-Canadian culture has the power to enforce its own cultural framework as the only "legitimate" cultural framework in society. The thesis examines how Aboriginal claimants are thus forced to submit to the values, laws, and political and economic interests of the dominant culture.

1.0 INTRODUCTION

Aboriginal groups, academic commentators and the federal government, though for different reasons, generally regard negotiation of comprehensive claims as being a more appropriate mechanism for the resolution of such claims than adjudication.[1] As was stated in Chapter 1, the federal government was induced to adopt a preference for negotiated settlements due to the risk of judicial decisions favouring a generous interpretation of Aboriginal rights, which the government would then be forced to adopt in its policies.

The 1973 Supreme Court of Canada decision Calder v. The Attorney General of British Columbia[2] was in fact the driving force behind the federal government's new policy statement made the same year.[3] The government no doubt realised that it would have more control of the process and outcomes of negotiation than litigation. The effect of the Calder decision on federal policy will be discussed in more detail later in this chapter in the section on claims policy.

Despite the apparent preference for the negotiation process to resolve comprehensive claims and other disputes involving governments and Aboriginal peoples, it is arguable whether the process has been fully successful. In a 1990 discussion paper in relati on to land claims, the Indian Commission of Ontario stated that

"[i]f negotiation is to be an alternative to actions of violence and confrontation, such as those at Oka,...surely it is incumbent upon those who care to ensure that the alternative be one that works. History shows clearly that at this point it can only be said that the present processes and policy for dealing with Indian land claims have been an exercise falling far short of anything resembling success."[4]

In determining "success", it is important to identify the criteria on which such an assessment is to be based. In terms of actual settlements, only four comprehensive settlement agreements have been reached since 1973.[5] If we include qualitative and quantitative considerations, it must be noted that negotiations have taken many years to complete, problems have been encountered in the implementation of settlement agreements,[6] and some Aboriginal groups have been dissatisfied with the eventual outcomes of negotiated settlement agreements.[7] I would argue that fairness of negotiated outcomes is a most important aspect in assessing the success of negotiation as a dispute resolution process.

I consider that these difficulties arise due largely to the disjunction between the theories and practice of negotiation. In other words, although negotiation theories may be sound, problems occur in the implementation of the theories. Both negotiation theories and negotiation practice require careful analysis in order to appreciate why negotiations in the context of Aboriginal claims in Canada have not always been successful. This aspect of negotiation has not, to my knowledge, been dealt with to date in the context of Aboriginal claims, which is unfortunate because its neglect masks its fundamental significance.

2.0 PART 1 - NEGOTIATION THEORIES

The North American literature regarding the role of negotiation in the resolution of Aboriginal claims generally refers to negotiation as a generic term and as a single process. In fact, there are at least two distinct models of negotiation. Each of these involves very different processes, goals and strategies. Participants in each model often strive for divergent outcomes. However, none of the existing Aboriginal claims literature distinguishes between these models, and readers would thus be forgiven for assuming that there is but one description of negotiation. This is most unfortunate, since it generates misinformation and confusion about the process.

Given the increasing emphasis in Canada on negotiation as a suitable process for resolving Aboriginal claims, self-government and other disputes between Aboriginal peoples and governments, it is imperative that both models of negotiation be examined and clarified. Once this has been completed, it will then be possible to examine negotiation practice in the context of comprehensive and other claims.

Negotiation theorists are devoted to explaining, comparing, and contrasting two broad and largely competing types of negotiation: competitive[8] and problem-solving.[9] Due to the differences between each model, they will be discussed individually. It will then be possible to ascertain which model has been employed in the comprehensive claims process and analyse its applicability and appropriateness.

2.1.  Competitive Negotiation Model

The competitive model of negotiation, as its title suggests, is characterised by the parties being engaged in a competition.[10] Each party is keen to defeat the other/s in order to maximise its gains.[11] The goal of each party is to "win", or claim as m uch as it can, certainly more than the other party.[12] Where limited resources are available, each party views its gains as necessarily involving a loss for the other party. This is what is meant by describing the process as a "zero-sum" game.[13]

The focus is on a favourable outcome, and this is achieved by each party manipulating the process to serve its own end.[14] Thus, the process employed is usually characterised by each party adopting a confrontational and argumentative stance.[15] Secret strategies and tactics such as threats are planned prior to substantive negotiations, designed to conceal true positions and interests, and intimidate or trick the opposition.[16] Carrie Menkel-Meadow observes that "[t]he literature is replete with advice to overpower and take advantage of the other side."[17]

Competitive negotiators will typically commence negotiations by making high opening demands or low offers, and then be reluctant to make concessions or compromises.[18] The parties are said to perform a ritual of making an offer, followed by a counter-off er and so on until a compromise is reached. This process is often described as the "negotiation dance".[19] If reached, settlements will usually be agreed upon somewhere in the middle of each party's articulated bottom-line position.[20]

Competitive negotiators tend to avoid normative arguments of the "fairness, wisdom, durability and efficiency"[21] of negotiations. Competitive negotiation is generally a "dog eat dog" game, and as such, polarises the parties and strains their relationship.[22] The confrontational stance adopted tends to create many opportunities for impasse between the parties, and this will often breed mistrust, frustration, anger, and, consequently, breakdowns in negotiations.[23]

2.2.  Problem-Solving Negotiation Model

In many ways, the problem-solving approach to negotiation is directly opposite to the competitive approach.[24] For proponents of the problem-solving model, successful outcomes are those which benefit both parties, or maximise joint and individual gains in terms of "win-win" solutions.[25] Mutually acceptable outcomes are achieved by employing a "principled" process.

It is necessary to draw a distinction between "principled" negotiation and "soft" negotiation.[26] "Soft" negotiators are usually identified as giving in to the other party. Their willingness to compromise on issues is regarded more a sign of weakness than planned problem-solving strategy. "Principled" negotiators, on the other hand, usually advocate and practice problem-solving strategy from a position of confidence in their own positions and capabilities. In other words, problem-solving strategies are employed in order to achieve "wise outcomes efficiently and amicably."[27] Generally speaking, principled negotiators consciously choose not to employ competitive strategies, whereas "soft" negotiators are usually incapable of employing competitive strate gies. In my discussion of the problem-solving negotiation model, I refer to "principled" as opposed to "soft" negotiation.

The process advocated by problem-solving negotiation theorists involves focusing on the interdependence between the parties. Both or all parties must negotiate together and cooperatively in order to meet their needs and priorities.[28] Thus, the parties attempt to understand and appreciate each other's points of view, needs and interests as being relevant and legitimate, and then identify their common interests.[29] Concentrating on each party's perspectives of the dispute is said to assist in resolving a ny underlying conflict between the parties, since misunderstanding is the root of most conflict.[30]

In terms of strategy, the parties' behaviour is generally characterised as being open and candid. In this way, actual objectives and interests can be identified and addressed.[31] Confrontational tactics are subordinated to the process of identifying possible solutions and working cooperatively to elicit creative ways of meeting both parties' needs.[32] Individual and collective brainstorming sessions are often undertaken in order to examine a variety of possible creative solutions.

According to Carrie Menkel-Meadow, the problem-solving method "...offers the possibility of meeting a greater variety of needs both directly and by trading off different needs, rather than forcing a zero-sum battle over a single item."[33] Further,

"[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."[34]

Unlike the competitive model of negotiation, the problem-solving model emphasises the aspect of fairness,[35] both of process and outcomes.[36] Thus, not only must the mutually acceptable solution be fair to all the parties, but so must the process employ ed in arriving at the solution. As to what constitutes "fairness", according to one negotiation theorist,        "[d]espite the absence of concrete generic standards for an assessment of fairness in bargaining, there is consensus in law that an unfair agreement that results from abusive tactics or practices should not be honoured...[B]argaining is unfair when coercive practices are used or when an unconscionable outcome results."[37]

2.3.  Comparing and Applying the Models

A comparison of the two models of negotiation is implicit from their respective brief descriptions above. According to Carrie Menkel-Meadow,

"[o]ne of the key differences between the conventional adversarial model and the problem solving model is the extent to which the parties and their lawyers engage in a continually interactive negotiation process, using the opportunity to seek new solutions rather than simply moving along a predetermined linear scale of compromise."[38]

There is considerable divided opinion amongst negotiation theorists as to which model of negotiation is preferable per se.[39] This is because there is no single criterion upon which to make such a decision. However, as was mentioned in the introduction to the thesis, selecting an appropriate dispute resolution mechanism largely depends on the nature of the particular dispute, the context of the dispute, and the relationship between the parties at conflict.

Some commentators suggest that the two models are largely asymmetrical and that there is little common ground between them.[40] However, other commentators have considered the overlap between the two models of negotiation and suggest that it may be possible, and at times necessary, to combine the two models. For instance, Lax and Sebenius say that the competitive and cooperative elements are inextricably entwined and that, in practice, they cannot be separated.[41] They argue that "[n]o matter how much creative problem solving enlarges the pie, it must still be divided; value that has been created must be claimed."[42] Their discussion on how to manage successful negotiations by combining the two models will be dealt with shortly in the context of the "negotiator's dilemma."

Without going into the issue of combining the two models just yet, in relation to disputes involving Aboriginal groups and governments, it is my view that the "principled", problem-solving model of negotiation is the more appropriate model to successfully resolve disputes and address issues of underlying conflict. The reasons for this are as follows

First, the linear negotiation structure of the competitive model is not suitable when the issues in a negotiation are many and varied.[43] It is difficult to imagine any dispute between Aboriginal groups and governments which does not involve several levels of dispute, or many complex issues. Comprehensive claims clearly involve a variety of complex, multi-dimensional issues, as do self-government negotiations and disputes relating to the implementation and interpretation of treaties. A gain on one issue does not necessarily mean a gain on all issues and a loss on another issue does not necessarily involve other losses. In other words, disputes involving Aboriginal groups and governments cannot really be seen as "zero-sum" games, since in a problem-solving situation where more than one issue is being negotiated, trade-offs between issues are possible.[44]

Given the complex and multi-dimensional nature of disputes between Aboriginal groups and governments, it is important that both parties attempt to arrive at creative solutions. The problem-solving method of negotiation facilitates "creative proactive dynamics" instead of "competitive reactive dynamics" associated with the competitive model of negotiation.[45]

The conventional literature on the tactics and strategies involved with the competitive model of negotiation tend to operate on the assumption of universal applicability.[46] "Strategic exhortations are offered without reference to how negotiations might vary in different contexts or under different circumstances..."[47] For example, one commentator advises that

"[n]egotiators should wear the trappings of success. For instance, a dark chalk stripe suit, a Rolex watch, or tasteful jewelry may be worn to suggest past success and will help any negotiator...to prevail."[48]

Clearly, such exhortations are not appropriate in the context of disputes involving Aboriginal peoples and governments. Indicia of material success are irrelevant. Government negotiators do not need to wear Rolex watches in order to establish the government's dominant position.

Secondly, proponents of the problem-solving model of negotiation assert that when both parties have been proactively involved in the design and process of mutually acceptable outcomes, there is an increased likelihood that the dispute will be resolved once and for all, and that consequently, the parties are more likely to abide by, or implement, their terms of agreement.[49] This is largely because the parties feel that they truly "own" their solution due to their joint and voluntary input and efforts. The parties thus take responsibility for their decisions and commitments. Commitment to implement agreements would be most beneficial to disputes and claims involving governments and Aboriginal peoples, since finality and implementation are currently proble matic. These issues are discussed in more detail later in this chapter.

Thirdly, the relationship between the parties is also an important factor in selecting one model of negotiation over the other. It is generally accepted that the problem-solving model is more appropriate when the parties are engaged in an ongoing relationship.[50] This is because, to be effective, the process requires mutual respect and cooperation between the parties, which may then facilitate agreement. Conversely, the competitive model, with its emphasis on hard-line tactics and confrontation, tends to estrange the parties from one another. This can be destructive for any future relationship between the parties.[51]

The relationship between Aboriginal peoples and governments in Canada and elsewhere has historically been one of distrust, frustration and bitterness. Voluntarily opting for a negotiation model, which, to be successful, requires the parties to be confront ational, antagonistic and threatening would only serve to increase the hostility which has traditionally characterised relations between Aboriginal peoples and governments. It is submitted that the employment of the problem-solving method of negotiation would be far more appropriate in attempting to resolve disputes between these parties, since it is a process which is psychologically unifying rather than divisive.[52]

In making a conscious effort to understand and appreciate other points of view and interests, by following the problem-solving model of negotiation, the parties (particularly governments and developers) may be better able to understand such factors as cultural differences and the current disjunction between the parties' perceptions of goals and expectations. In short, any process which facilitates better communication and understanding between Aboriginal groups and governments, and which attempts to stren gthen the parties' relationship, should be embraced wholeheartedly.

Finally, in my opinion, the problem-solving model of negotiation is more culturally appropriate for Aboriginal peoples, since the principles which it espouses are, broadly speaking, more akin to the cultural values and priorities of Aboriginal peoples.[53] The problem-solving model, like traditional Aboriginal culture, avoids confrontation and focuses on a horizontal process of problem-solving and dispute resolution. As with "principled" negotiation, the reason for adopting this approach is due to respectfor others and alternative points of view, and a belief that equitable solutions require the employment of open and flexible processes.

Problem-solving negotiation maximises the participation of both parties, rather than just focusing on the party with the loudest or strongest voice. Similarly, the fairness of process and outcomes is emphasised by all participants as being important. A more detailed discussion of these issues is to be found later in this chapter, in the section on cultural differences.

The foregoing arguments strongly suggest that the principled form of problem-solving negotiation is the most appropriate model for the resolution of disputes involving Aboriginal peoples and governments, particularly the resolution of comprehensive claims. However, the inequality of power between Aboriginal groups and governments referred to throughout this thesis presents significant problems.

2.4 Negotiator's Dilemma

Negotiation theorists refer to what is known as the "negotiator's dilemma".[54] This is the dilemma which negotiators experience in deciding which negotiation model and tactics or strategies to adopt without being able to anticipate the other party's adopted model and strategies. Where both parties are committed to the problem-solving model, relative equality in process and outcomes can be fostered. However, in a situation where one negotiating party wishes to adopt the problem-solving model of negotiation, but the other party is employing the competitive model of negotiation, the "principled" party risks being tricked, manipulated, and forced into making all the compromises.[55]

This dilemma is applicable to all disputes, but particularly those where there is asymmetrical power between the disputants. For parties with relatively equal political, economic, or psychological power, both parties may be able to negotiate competitively. Even if one party prefers to negotiate cooperatively with the other party, it can generally switch strategies successfully when faced with a competitive opponent and operate on a "tit for tat" basis.[56]

However, in the face of inequality between the parties, it can be extremely difficult for the weaker party to employ problem-solving techniques unless they are reciprocated by the stronger party.[57] This is because the stronger party knows it can gain a great deal by exercising power in the competitive sense.[58] Threats and hard-line tactics operate most effectively for the more powerful party. In effect, there really is no "competition". Reciprocal threats made by the weaker party may not be credible.  There is often no incentive for the more powerful party to compromise or bargain for mutual gain[59] when it can achieve most or all of its positions and interests without even negotiating. For this reason, it is difficult for the weaker party to express and maintain fixed positions to counter those of the stronger party - the weaker party usually ends up compromising.[60]

The "negotiator's dilemma" assumes particular importance in the area of disputes between Aboriginal peoples and governments. The political and economic power of federal and provincial governments vis-a-vis Aboriginal peoples is emphasised throughout this entire thesis. Although problem-solving negotiation is unarguably more appropriate per se than competitive negotiation to resolve disputes and comprehensive claims, it may simply be naive to expect that governments will commit themselves to adopting the problem-solving model in negotiations.

Other than attempting to achieve altruistic "fairness", it would appear that governments have little to gain by following the problem-solving model. Governments can often achieve their desired results by other means, such as through policy, their judicial arm (though the courts are unpredictable and may decide a particular case in favour of the Aboriginal claimants instead of the government), and coercive state machinery. Aboriginal groups have no way of forcing governments to agree to problem-solving neg otiation, but neither do they usually have the power to respond to governments "competitively" in negotiations.

In light of the foregoing, perhaps it would be useful to concentrate our attention on how the two types of negotiation may be combined in negotiations between governments and Aboriginal peoples. When faced with the negotiator's dilemma, Lax and Sebenius suggest that it may not be a matter of simply adopting the strategies and tactics of one or the other of the models. Instead, they suggest that "conditional openness" may be the more appropriate strategy to embrace.[61]

This strategy emphasises the problem-solving model and strategies as the basis for negotiations, so that each party seeks mutual cooperation, but is nevertheless ready to "punish or claim value" when the other party does so.[62] Thus,

"[t]he attempt to create value is linked to an implicit threat to claim vigorously if the counterpart does, but also to the assurance that a repentant claimer will be allowed to return to good graces. Thus, both can avoid condemnation to endless mutual recriminations."[63]

Although Lax and Sebenius' above advice may be extremely valuable, transporting the above principles into the Aboriginal claims arena may not always be possible in practice. In my opinion, "conditional openness" is merely a synonym for "tit for tat." Due to the imbalance of power between the parties, Aboriginal claimants may not always be able to assume sufficient control of the process to punish competitive tactics of governments by threatening or engaging in reciprocal behaviour. However, one possible way to achieve this is to attract media and public attention and support, as discussed in Chapter 1. Media and public scorn against governments is usually a most effective sanction technique, and would enhance Aboriginal claimants' bargaining leverage in negotiations.

Although no writer to date has explicitly characterised negotiations between Aboriginal groups and governments as following the competitive model, it is evident that they are indeed usually "competitive" negotiations. Throughout the following section of this chapter, the current reality of the negotiation process in Canada is examined. I attempt to show how the federal government's power, in particular, lends itself to adopting and forcing others to adopt the competitive model, and how its power is invoked to generally ensure self-serving negotiation processes and outcomes.  It is unfortunate that Aboriginal claims commentators have traditionally failed to recognise the two distinct models of negotiation. In advocating the process of negotiation to resolve Aboriginal claims, it appears that most commentators have mistakenly assumed that negotiations are all the same. They appear to think that general negotiation is synonymous with problem-solving negotiation.[64] This is incorrect.

In presenting negotiation as an all-encompassing theory, conclusions have been drawn that the process as a whole is both fair and suitable for the resolution of comprehensive claims. However, each model of negotiation is distinct, and it can hardly be said that competitive negotiation is fair in the face of inequality between the parties. By failing to recognise this, unfair negotiated outcomes can be legitimised, since it is assumed that the process itself was fair.

3.0 PART 2 - NEGOTIATION PRACTICE

Due to, among other things, the polycentric nature of comprehensive claims, the disadvantages of litigation, the nature of the relationship between the parties, and the need for significant Aboriginal participation in the dispute resolution process, direct negotiation and mediation are probably the most appropriate processes for the resolution of comprehensive claims, at least in comparison to adjudication. Mediation is dealt with in Chapter 3.

Negotiation is also superficially the fairest dispute resolution process since it facilitates both parties voluntarily agreeing to come to the negotiating table and maximises direct participation by Aboriginal claimants. By virtue of these characteristics of negotiation, it should be possible for the ongoing relationship between the parties to be addressed, facilitating increased trust and understanding for the future.

However, no matter whether competitive or problem-solving negotiation is employed, two fundamental conditions must be met for negotiation to be successful in terms of objective fairness. Both parties must exhibit the will to negotiate, and there must be relative equality between the parties.[65] However, in Aboriginal claims negotiations, there is not equality between the parties, nor is the will to negotiate in earnest always present. Thus, although negotiation is an attractive option, the nature and extent of the power imbalance between the parties often makes it almost impossible for equitable negotiations to take place, both in terms of process and outcomes.

The purpose of this part of the thesis is to illustrate that the imbalance of power between governments and Aboriginal claimants generally thwarts fair and thus successful negotiations from taking place. My thesis is that the imbalance of power between the parties is present from the outset, and is reinforced throughout, and by, the negotiation process.

The federal government and, to a lesser extent, provincial governments generally have the power to define the entire negotiation process: the rules, the players, and often, the outcomes. In the sense of control and manipulation of the process, governments tend to approach negotiations from the competitive negotiation model standpoint, and in so doing, manage to control and manipulate their "opponents", as well as the eventual outcomes. Aboriginal claimants are forced to relate to governments on terms unilaterally defined by those governments. It is submitted that this is characteristic of colonial relationships.[66]   Although process is an essential ingredient to dispute resolution, there is a danger in assuming that the process itself will dictate the quality of proceedings. By definition, a negotiated result is acceptable to both parties, since it is a voluntary process.[67] Thus, assumptions are made about the inherent fairness of the process and its outcomes, but Professor Paul Emond warns that "[t]he outcome cannot necessarily be justified simply in terms of the process employed."[68]

Negotiation may be posited as a fair process per se, but there must also be fairness in the internal dynamics of the process.[69] This was discussed in more detail in the section on negotiation theories. In my opinion, negotiations have to be structured to compensate for the power imbalances between the parties.[70] In order to assess whether negotiation is in fact an appropriate or fair mechanism for the resolution of comprehensive claims, it is useful to examine the process from the perspective of the symmetry of power, or lack thereof, between the parties.

As was mentioned earlier, equality between the parties is essential to equitable negotiations. This is particularly so since Aboriginal people "...are usually in the position of supplicants seeking redress from parties whose interests in achieving an agre ed settlement are not as great as their own."[71] As with litigation, the status quo operates in the governments' favour and the status quo can be enforced by invoking coercive machinery.[72] According to Druckman, when one party is more powerful,

"...the more powerful 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."[73]

Although this part of the thesis tends to paint a fairly bleak picture of negotiation and its utility for the resolution of Aboriginal claims, I do not wish to project total pessimism. Negotiation has much to offer and much potential. Despite the power im balance between the parties, I consider that there are ways to redress, or at least, address many of the imbalances. Throughout this chapter, and especially at the end of the chapter, suggestions are made both as to how Aboriginal claimants could be empowered in the process of claims resolution, and also how the structure of the negotiation process itself could be altered to strengthen the bargaining position of Aboriginal claimants. Rather than perceiving Aboriginal claimants as "victims" of the system, steps should be taken to empower Aboriginal peoples in the claims arena.

3.1 PRE-NEGOTIATION PHASE

Before the parties even begin to negotiate, there is substantial inequality of power between them. The power of governments to control negotiations from the outset infects the substantive negotiation process and outcomes. The underlying imbalance of power between governments and Aboriginal claimants can be evidenced, for example, by the terminology employed and defined by government.

3.1.1 Terminology

The concept of Aboriginal "claims", especially "land claims", affects both the process and outcomes of negotiation.[74] The term implies that Aboriginal people are claiming something which does not rightfully belong to them, and therefore, they bear the burden of establishing the validity of their rights. Not only does this misrepresent Aboriginal concepts of land, but it also reinforces the power imbalance.[75] The terminology of "land" claims also serves to deny the existence of other Aboriginal rights, particularly the political right of self-government. Although the current claims policy now refers to "comprehensive" claims instead of "land" claims, political rights are still restricted. This is discussed in more detail in the section on claims policy.

Professor Michael Asch argues that "[t]he impasse to adopting more appropriate terminology lies not in finding conceptual parallels but rather in the lack of political will on the part of Canadian governments..."[76] 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."[77] In so doing, the Aboriginal parties have to give ground on fundamental points. This involves Aboriginal people implicitly conceding "...both the principle which derives from their conceptual framework...and the right that would flow from an acceptance of their framework in Canadian law..."[78]

George Watts, Chairman of the Nuu-chah-nulth Tribal Council succinctly summarises Aboriginal dissatisfaction with the current terminology in the following statement:

"...we have to get rid of this concept that this is a land claim. It isn't a land claim, it's a settlement; a settlement of two different jurisdictions. There is a European jurisdiction that came here and there is the aboriginal jurisdiction over that land that has always been here. Please remove from your mind the European concept that you own everything and you can give it away. It's not possible. You cannot give me the land which my great-great-great-great-great grandfather passed on to me and I'm g oing to pass on to my great-great-great grandchildren. You will never give us the land, but what you can do is come to an accommodation of the conflicts in the titles that we have."[79]

3.1.2 Claims Policy

The imbalance of power between the parties is apparent in yet another aspect prior to the commencement of negotiations. The federal government largely defines the agenda and scope of negotiations by application of its claims policies. According to Sally Weaver, "[p]olicy-making is not a pragmatic exercise devoid of principles and beliefs, but a process in which values that will guide government actions are selected and rationalized."[80] It is worthwhile briefly outlining aspects of the recent history of claims policy to illustrate how the power for one party to define and enforce policy significantly affects the dispute resolution process and outcomes.[81]

Mention was made in Chapter 1 that, to the Calder decision, the federal government was unwilling to negotiate Aboriginal claims, due to a long history of the federal government failing to adequately recognise the existence and legitimacy of Aboriginal rights per se.[82] This can be illustrated by the then Prime Minister Pierre Trudeau's 1969 "White Paper",[83] which confirms this dismissive approach.

3.1.2.1 The White Paper

In referring to Aboriginal claims to land, Trudeau's government said that "[t]hese are so general and undefined that it is not realistic to think of them as specific claims capable of remedy..."[84] The policy essentially called for the termination of the special rights and status of Aboriginal peoples.[85] According to Menno Boldt and J. Anthony Long,     "...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..."[86]

Thus, in an effort to implement the broad policy of assimilation,[87] the government was unwilling to negotiate any rights with Aboriginal peoples, let alone political rights. Unsurprisingly, Aboriginal peoples in Canada, who were not invited to participa te in the formulation of the policy, did not respond enthusiastically to the White Paper, as they perceived it as advocating cultural genocide.[88]

The policy was formally withdrawn in 1973 following the Calder decision.[89] In commenting upon the Calder decision, Trudeau said that "...perhaps you [Indians] had more legal rights than we thought when we did the White Paper."[90] Some commentators suggest that, despite formal withdrawal of the policy, the federal government has not repudiated its goal of assimilation but is instead pursuing other means to achieve it.[91]

3.1.2.2 Calder Decision

The decisive effect of the 1973 Supreme Court of Canada decision in Calder[92] in influencing the federal government to agree to negotiate comprehensive claims with Aboriginal claimants has already been discussed in Chapter 1. The Calder decision expanded the notion of Aboriginal title, and the government was no doubt afraid that the courts would continue to expand this notion and thus impede economic development in the locations of claims. These factors would provide significant bargaining leverage to prospective Aboriginal claimants. Legal proceedings instituted by Aboriginal claimants were already under way in the Northwest Territories, British Columbia and Quebec.[93] Coupled with this, there was a general popularisation of the issue of Aboriginal land rights amongst the media and public generally.[94]

The thrust of the 1973 claims policy was that the federal government would negotiate settlements with Aboriginal groups where rights of traditional use and occupancy had been neither extinguished by treaty nor superseded by law.[95] It called for the exch ange of undefined Aboriginal rights for concrete rights and benefits that would be guaranteed by settlement legislation.[96] This "exchange" did not imply an admission by the government that these "undefined" rights actually existed.[97] The policy stress ed that in exchange for these rights and benefits, all Aboriginal rights and title were to be extinguished once and for all.[98] The issue of extinguishment will be dealt with in more detail in the next section of this chapter.

The so-called concrete rights and benefits to be negotiated included title to land, monetary compensation, wildlife rights, limited economic development rights and rights to local self-government.[99] Reference to rights other than those involving land made the claims "comprehensive" in nature. The issue of political rights was treated very cautiously by the government and this has been and continues to be a major criticism of the federal government's claims policies.[100]

In 1981, the federal government issued its revised comprehensive claims policy.[101] It was substantially the same policy as before.[102] The policy was revised again in 1987.[103] In the latter policy revision, the government confirmed its commitment to negotiation, expanded the scope of comprehensive claims in certain areas, and emphasised that settlements had to be final.[104]

All claims policies since 1973 stress the federal government's commitment to negotiation and a fair resolution of comprehensive claims. However, according to some commentators, the government has not in fact been committed to putting its rhetoric into practice.

"From the publications and press releases emanating from the federal government, one might think that the authorities, freed of the ethnocentrism and indifference to the wishes of Native people that has characterised its past Indian policies, has entered upon a new dawn of generosity, understanding, and sensitivity to Native rights and desires. Instead, while cloaking its purposes in the language of sociology and cultural relativism, it is pursuing essentially the same policy as its predecessors have done for the past 350 years."[105]

Clearly, there needs to be increased participation by Aboriginal peoples in the setting of agenda and scope of negotiations, and thus claims policy framework.[106]

"In 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 assu rances; little substantive change has occurred."[107]

The imbalance of power between the parties is enormous. Essentially, the government is able to unilaterally define the scope, terms, and outcome of negotiations from the outset. This is far from compatible with problem-solving negotiation theory. Where is the mutually defined process; the accommodation and compromise; the consensus; the mutually acceptable outcome?

Through the vehicle of policy, the government largely dictates the terms for negotiation and spells out its non-negotiable positions. This includes not only the specific rights claims that can be negotiated, but also various premises which must be accepted by Aboriginal claimants if the government is to agree to negotiate at all. Thus, by applying to have a claim settled by negotiation, Aboriginal claimants must accept that terms of settlement can only be achieved by the simultaneous extinguishment of all their rights, the very basis of their entire claim. Further, all settlements must be accepted as being final.

3.1.2.3 Political Rights

Without going into the issue of self-government in much detail, it is important to emphasise the significance of the federal government's repeated denial of extensive political rights as an issue to be negotiated as part of comprehensive claims. It is submitted that the traditional reluctance of the government to incorporate self-government into the negotiation agenda is related to its fear of losing control of the process of resolving Aboriginal claims, and thus the loss of control over the development s ector and Aboriginal people themselves.

Federal claims policy makes provision for the incorporation of local self-government into comprehensive claims settlement agreements.[108] Such agreements are afforded constitutional protection by section 35(3) of the Constitution Act, 1982. However, broad self-government agreements do not fall within the ambit of section 35 or any other section of the Canadian constitution. Thus, even if a government entered into a self-government agreement with Aboriginal claimants, the agreement would have no constitutional force or status.

Central to Aboriginal claims is the assertion that Aboriginal rights are not only about land; they are also connected to Aboriginal claims to unsurrendered political sovereignty.[109] Claims for land and claims for self-government go hand in hand because land without the power to control what happens on it is of as little value as political power without a land base.[110]

The federal government's traditional denial of self-government to Aboriginal claimants in the negotiation forum can be well illustrated by example of the Dene claim. The Dene claim commenced in 1973, at the same time that Calder was decided and the fede ral government issued its new claims policy. As a result of the Calder decision and the Dene's success at first instance in Re Paulette[111] in 1973, the federal government agreed to negotiate with the Dene.[112] However, the 1973 claims policy emphasised the land question and remained largely silent on the issue of political rights.

By 1975, the Dene made it clear that any proposed claims negotiations would have to include the acknowledgement by Canada of their political right to self-government. That year, the Dene chiefs passed the Dene Declaration.

"We the Dene of the Northwest Territories insist on the right to be regarded by ourselves and the world as a nation.

Our struggle is for the recognition of the Dene Nation by the Government and peoples of Canada and the peoples and governments of the world...

What we seek then is independence and self-determination within the country of Canada. This is what we mean when we call for a just land settlement for the Dene Nation."[113]

This position was reiterated in 1976 by the Dene when they approved a proposal for an Agreement-in-Principle.[114] However, the government rejected the Dene's proposition, and negotiations were thus stalled until 1980 as the Dene refused to negotiate property rights without political rights.[115] Although negotiations resumed in 1980, they were unsuccessful and no final settlement agreement was ever reached. There are a variety of reasons for this, not all of which involve the government. However, one of the primary reasons for the failure of negotiations was that successive claims policies continued to exclude substantial political rights from the negotiation agenda.[116]

The federal government's power to largely unilaterally define negotiation agenda provides it with a distinct advantage over Aboriginal claimants. However, its power to veto broad political rights from the negotiation and claims agenda provides it with an even greater advantage. By limiting political rights, the government is able to secure its economic control of land and resources and its economic and political control over Aboriginal peoples' lives. The power imbalance thus affects Aboriginal peoples in a much wider sphere than merely their actual land claims. It is difficult to envisage a more unequal negotiation situation.

It appears that over the last decade or so, the federal government is gradually becoming more tolerant of the concept of Aboriginal self-government. Although a revised claims policy has not been issued to this effect, the shift in political will can be evidenced from both the 1992 Charlottetown Accord[117] proposals in relation to Aboriginal self-government, as well as current comprehensive claims negotiations. For example, in the Yukon Umbrella Final Agreement, extensive self-government arrangements are envisaged.[118] Thus, it appears that Aboriginal claimants are gradually acquiring a more powerful voice in the setting of negotiation agenda.

3.1.3 Acceptance of Claims

There is one final power imbalance between the parties which dominates the pre-negotiation phase. The federal government's Office of Native Claims has the authority to decide which, if any, claims it will accept for negotiation by determining a claim's "acceptability according to legal criteria."[119] Acceptable to whom? Upon whose legal criteria? Unfortunately, the answers to these questions are self-evident. There has been ample criticism of the federal government's power in this regard. For example, Roberta Jamieson says that,

"[a]lthough the federal government considers it is dealing with claims in a fair and just manner, First Nations frequently will not accept treatment of a claim as having been just when the federal government - which is the party against which the claim has been lodged - rejects it by a unilateral decision made according to a unilaterally-imposed claims policy."[120]

Even if the federal government accepts a claim for negotiation, the Aboriginal claimants are dependent upon the government's discretion in respect of funding.[121] Manipulation of this power by government throughout the negotiation process will be dealt with in the next section of this chapter.

3.2.  SUBSTANTIVE NEGOTIATION PHASE

The above analysis indicates that before negotiations even begin, Aboriginal claimants have substantially less power than governments. This power imbalance is then consolidated and reinforced at every level of the ensuing negotiations. The government assumes the contradictory roles of judge, jury, advocate, prosecutor, defendant, and banker.[122]

3.2.1 Goals and Expectations of Process

Successful negotiation requires that the parties share common goals and expectations of the process.[123] In the context of Aboriginal claims, however, the parties have divergent perceptions on these issues. Whilst governments are intent upon extinguishing Aboriginal title to land in exchange for limited land ownership, monetary compensation, and other specific "benefits" in order to allow for continued resource development,[124] Aboriginal people 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.[125]

However, the government's unilateral power to define the premises and content of negotiations often makes reconciliation of these disparate perceptions almost impossible. As stated previously, 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.

3.2.2 Extinguishment and Finality

Certainty is different from finality. As was stated in the section on claims policy, the federal government seeks certainty by insisting upon the extinguishment of all Aboriginal rights in exchange for certain benefits.[126] This approach is discriminatory since it includes the extinguishment of cultural, social, political, linguistic, education and religious rights.[127] Surely governments are concerned only to secure their own title to land and resource rights, not to ensure assimilation and cultural de struction.[128]

In speaking about the federal government's policy relating to extinguishment, National Chief of the Assembly of First Nations in 1989, Georges Erasmus said that          "[o]ur people find it fundamentally unjust that we should be required as a condition of entering negotiations to surrender the very rights on which our entire case is based. Such is required of no other group in Canadian society."[129]

This has also been the position of the Dene and Yukon Aboriginal peoples. However, when Aboriginal claimants have resisted the inflexible government demand for extinguishment, negotiations have dragged on interminably, often dissolving in acrimony and fru stration.[130] In 1991, speaking about negotiations, Bill Erasmus said,

"[w]e have a choice before us. We can go to court acknowledging the Canadian System that we are not formally a part of. Or we can force the Federal government to come back to the table on mutual terms that do not include extinguishing our rights."[131]

According to William Morrison, during the 1970's and 1980's, northern Native groups rejected the extinguishment request, and "hoped for government flexibility on this score."[132]

"They waited in vain, for as successive federal ministers and land claims negotiators made clear, the primary reason Ottawa participated in the claims was to eliminate the prospect of future Native demands based on aboriginal rights. The federal government did agree to a change in terminology. The initial term, "extinguishment," which carried strong negative connotations among the Natives, was replaced by the gentler word "certainty." But the meaning was the same: the federal government would [settle] a comprehensive claim only if the Native negotiators agreed to a final and complete surrender of aboriginal rights..."[133]

If certainty is attainable at all, which in my view, is most doubtful, it can be achieved without recourse to extinguishment. "First Nations should not be required to abandon fundamental constitutional rights simply to achieve certainty for others."[134] Extinguishment of Aboriginal rights to land may create certainty for governments and developers, but there is no guarantee that it will create certainty for the Aboriginal peoples affected by the settlement. The opinion of the recent British Columbia Claims Task Force into land claims is that the parties must strive to achieve certainty through modern treaties which state as precisely as possible each party's rights, duties, and jurisdiction.[135] Referring to the U.S. Indian Claims Commission, Washington Senator Henry Jackson acknowledged that

"...the worst result of the Indian Claims Commission Act is that we thought by adjudicating these claims we had achieved a final settlement. It is clear in my mind that the younger generation of Indians feel that it was no settlement at all."[136]

Finality is a problematic concept. By regarding settlement agreements as final, there is no room for renegotiation in the event of new, previously unforeseen circumstances occurring. At the time of making settlement agreements, the future cannot always be predicted. For example, in the case of the James Bay and Northern Quebec Agreement, compensation payments by the Quebec government to the Cree and Inuit were calculated upon certain predictions, such as future Cree and Inuit populations and environmental impact assessments.[137] However, more environmental degradation actually took place than was originally anticipated.[138] Further, the Cree and Inuit population increased beyond original calculations. Serious as these new circumstances were, the settlement Agreement was final, leaving these problems unresolved. The Cree and Inuit were powerless to enforce a renegotiation of the Agreement based upon these new circumstances. Thus, finality was achieved for the government, but not for those most affected by the settlement.

Dynamic, ongoing relationships involve change and thus require flexibility of process. It is submitted that the goal of reaching a negotiated "social contract" between Aboriginal claimants and governments is more appropriate than the current finality requirement of the federal government. If the parties were to focus in negotiations on the process of establishing a positive relationship of cooperation and a framework for mutual decision-making, they would be able to deal with new circumstances and problems if and when they arise.

3.2.3 Compromise

As was stated earlier in this chapter, compromise is a necessary element of negotiations. However, compromise on these fundamental issues and strongly held principles is difficult. Aboriginal claimants feel they should not have to compromise on issues aff ecting their rights, lifestyle and culture.[139] Neither should they be placed in the position of compromising on some issues, such as education, in order to claim ground on other issues, such as land.[140]

On the other hand, "[g]overnment departments assume that departmental policy is fixed and immutable and that negotiations are designed to reinforce existing policy, not modify or distort it."[141] Substantial modification of governmental claims policy i s unlikely, since it would involve a much greater recognition of Aboriginal rights and the legal consequences of those rights than the federal government has thus far been prepared to acknowledge. Given the power differential between the parties, it is not difficult to predict which party will face the heaviest burden in any compromise.

3.2.4 Cultural Differences

As with litigation, the diverse cultural frameworks and differences between Aboriginal and non-Aboriginal society also manifest themselves in the negotiation forum. Once again, the dominant, Euro-Canadian culture exerts a monopoly on defining the cultural framework of negotiations. Non-Aboriginal values tend to dominate the negotiation process as Aboriginal people lack the political power and perceived legitimacy to impose their own values.

Recognising and understanding the cultural differences between parties is a most important aspect of cross-cultural negotiations. It is commonly recognised that misunderstanding underlies most conflict. However, academic attention usually focuses only on the more visible examples of the cultural differences between Japanese and American negotiators for trade or commercial disputes, or between Arab and other nations for international disputes, for instance. It is only fairly recently that some attention has been given to the cultural differences between Aboriginal and non-Aboriginal people for internal political disputes.[142]

In outlining some of the major cultural differences, one must be careful not to over-simplify or over-generalise.[143] To do so would be to trivialise a culture's values and deny cultural diversity. However, an analysis of the broad cultural differences is important in any discussion of power imbalance, for the power to define the cultural framework of a bicultural, or multicultural process, and impose one set of cultural values at the expense of another, is a distinct advantage for the dominant culture i n terms of securing self-serving outcomes.

Aboriginal cultures are legitimated and empowered by giving recognition to cultural differences. By focusing on cultural differences, the emphasis moves away from ethnocentrism to cultural wealth and diversity. Traditionally, the dominant culture has view ed all cultures as basically the same as its own, but at various historic levels of civilisation.[144] Understanding cultural differences as just that - differences - helps to transform negotiation from a vertical process to a horizontal one.

The central tenet of Rupert Ross's Dancing with a Ghost[145] is that Aboriginal and non-Aboriginal cultures are "...separated by an immense gulf, one which the Euro- Canadian culture has never recognised, much less tried to explore and accommodate."[146 ] According to Ross, the dominant culture's traditional lack of recognition of cultural differences has its roots in colonialist ideology.[147] In other words, it is based on an ideology which suggests that if we are all living in the same country, we sho uld all be part of the same culture. As Ross correctly points out, we are able to praise and respect other cultures when we visit other countries, so why not do the same in our own country?

In discussing cultural differences between Aboriginal and non-Aboriginal culture generally, it is important to preface the discussion by pointing out that there are distinct differences and cultural diversity even within Aboriginal cultures. Whilst this c annot be emphasised strongly enough, it is still possible to examine the underlying unity of Aboriginal culture broadly vis-a-vis non-Aboriginal culture since the differences are quite pronounced. Further, the following discussion of cultural differences is very brief and is intended to be no more than an introduction to these issues. The brevity is in no way intended to trivialise or over-simplify.

3.2.4.1 Land Significance

One of the more fundamental differences between Aboriginal and non-Aboriginal culture is the diverse views of the significance of the land. This was briefly mentioned earlier in this chapter. For Aboriginal cultures, the land and environment is the "...context within which life unfolds, it helps define one's connectedness to the past, present and future."[148] The land is central to every aspect of life, social, economic, and spiritual, and thus commands respect as a life-giving entity.[149] For an Aboriginal person, "[w]hen you talk about the land, you talk about me and my family...What part you destroy of the land, you also destroy of me."[150] Aboriginal people generally belong to the land, rather than the land belonging to them.[151] This belief facilitated the colonists' usurpation of the land upon their arrival, since European culture generally views the land as yet another resource, "waiting to be utilised, developed and exploited."[152] The desire to shape, control, dominate, and manipulate is a driving ambition.[153]

The concept of ownership is also frequently different.[154] On the one hand, sharing is often the dominant ethic, and on the other, exclusivity is fostered. The latter non-Aboriginal discourse has dominated the legal, economic, social, and political arenas of modern Canadian society. In many Aboriginal cultures, prestige and honour come from generosity and the act of sharing, such as in the potlatch system.[155]

Although there is great cultural diversity within various Aboriginal cultures in relation to the issue of ownership of land, many Aboriginal cultures did not traditionally see themselves as the owners of the land, and as such, neither were they empowered to bestow ownership on another.[156] The land was generally to be used by, cared for, and shared by human "custodians". This particular cultural difference between Aboriginal and non-Aboriginal societies is at the root of conflict over treaty interpretation.

If we understand and appreciate the fundamental significance of the land for Aboriginal peoples, we are also able to understand the importance of land rights and land claims to Aboriginal peoples. The land is the source of both individual and group identi ty and dignity. It is not difficult to understand that dispossession from traditional lands has involved a loss of identity and dignity for Aboriginal peoples and cultures. Thus, land claims are very significant, as they provide the opportunity for Aboriginal peoples to re-establish or nurture their relationship with traditional lands, and thereby strengthen the identity and dignity of both the group and individual members. In the words of an Australian Aboriginal elder,

"[i]f our Dreaming and our laws and languages and our way of living die, then that will be the end of Aboriginal people. It all goes back to the land, that is why land rights are so important to us. We need the land to be Aboriginal in our minds."[157]

3.2.4.2 Decision-Making

In terms of political leadership and decision-making, though not the case in all Aboriginal cultures, generally Aboriginal cultures traditionally value open and continuous dialogue and consensus.[158] Decision-making is a thus a horizontal process and iss ues are discussed and dealt with contextually and experientially.[159] Community participation and interaction are paramount. The power of decision is traditionally vested in the total membership of the group or band, and unanimous consent was required before action was taken.[160] Chiefs are spokespersons for the group.[161] Problems and disputes are openly aired and are not limited to formal forums governed by set time-frames. 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.[162] All these factors serve to empower individual community members and unify the collective community.

Elders play a significant role in the decision-making process. In claims negotiations with governments, even if younger Aboriginal leaders are vested with the mandate to negotiate on behalf of their communities, they will often consult the rest of the com munity, and particularly the elders, before they arrive at decisions.[163] This can create difficulties in claims negotiations when, for example, the elders to be consulted are away hunting or trapping when the decisions need to be made. In relation to th e negotiations between the Cree and Quebec government, for example, Boyce Richardson describes how "[t]he leaders were confirmed in their intention not to accept anything until they had had a chance to consult the hunters and trappers who would not be ret urning from the bush until the spring."[164]

Elders play a significant role in the decision-making process. In claims negotiations with governments, even if younger Aboriginal leaders are vested with the mandate to negotiate on behalf of their communities, they will often consult the rest of the community, and particularly the elders, before they arrive at decisions.[163] This can create difficulties in claims negotiations when, for example, the elders to be consulted are away hunting or trapping when the decisions need to be made. In relation to th e negotiations between the Cree and Quebec government, for example, Boyce Richardson describes how "[t]he leaders were confirmed in their intention not to accept anything until they had had a chance to consult the hunters and trappers who would not be ret urning from the bush until the spring."[164]

However, traditional methods of consensual decision-making are not always followed. In some Aboriginal communities, leaders do not always enjoy the support and respect of the community, since it is felt that they lack the traditional skills and knowledge and work for, instead of with, the people.[165] There are also logistical difficulties in convening community meetings in communities which are now much larger than traditionally.[166]

Non-Aboriginal, and particularly government, leadership and decision-making, conversely, are generally formal, centralised and hierarchical.[167] Utilitarian and majoritarian principles apply. Securing legitimacy and power involves competition, domination , and sometimes coercion. Process is seen as merely the means to an end, the "end" being concrete and formal results.[168] Discussion is often minimised and limited to formal fora governed by strict time constraints.[169]

Hugh Brody illustrates the interface between and lack of understanding generated by these cultural differences in an excerpt of his book, Maps and Dreams.[170] Describing the Alaskan Highway Pipeline negotiations in British Columbia, he explains that fo llowing formal discussions, the Beaver people wished to contextualise the discussions and interact with the government officials in a social setting, thus presenting their viewpoint in a manner appropriate to their cultural values.

"It was all very convivial. The chairman and his associates, however, were eager to be on their way. Tired and satisfied, they regarded the hearing as ended...But the people had more to say. The Whites may have completed their work, but now that everyone was eating the Indians' food and talking to one another without agonizing and distorting formality, the hearing could get under way on the Indians' terms."[171]

They produced a dream map to explain their interests, and the

"...centre of gravity had suddenly shifted away from procedural concerns, pipelines and terms and conditions, to the Indians' world...The people now spoke in their own ways, and with real confidence. Most important of all, they said what they wanted and needed. The officials and visitors expressed delight and interest, but it is difficult to know how much they understood. Did the dream map come from too remote a cultural domain?...It is never easy to judge the political significance of informal events. Evoking a strange and distant world, the Indians who showed the dream map could have failed to make their point simply because they were now using their own, very unfamiliar idioms...Many of the Whites who spent the day in the Reserve Hall said they were de eply moved...Yet discussion of the dream map soon petered out, and the officials hurried into their bus, anxious to drive back to town. The people of the Reserve were puzzled. Where had their visitors gone? The meeting was just getting under way."[172]

Cultural differences interface at the negotiating table and warrant serious consideration, since they impact upon the success, or lack thereof, of negotiations. Although negotiation is termed an "alternative" dispute resolution mechanism, it is nevertheless a process designed and defined by the dominant culture in the context of Aboriginal claims. In my opinion, the power imbalance remains and, if anything, is strengthened by a process which carries the reputation of being mutually designed and mutually beneficial.

It is submitted that governments' preferred negotiation style, the competitive model, which was discussed at the beginning of this chapter, reflects the non-Aboriginal cultural values previously discussed. This is why it is unfair that Aboriginal negotiators should be forced to submit to the dominant approach to negotiations when it is so contrary to Aboriginal cultural values.

As with adjudication, the negotiation process is generally characterised by confrontation, adversarial tactics, and claiming strategies.[173] The government tends to take a positional stance and practices a tough approach. This discourse then usually dominates the atmosphere of negotiations, since Aboriginal claimants risk being exploited if they respond with a candid, cooperative style of bargaining. In traditional Aboriginal society, confrontation is avoided at all costs.[174] However, if they withdraw from confrontation at the negotiation table, they risk being exploited, or ignored.

In order to play the game set by government, Aboriginal claimants are forced to submit to the dominant cultural framework, and translate their values and priorities into the language of the dominant discourse. A very good example of this occurring is the James Bay and Northern Quebec Agreement negotiations. Confronted by the "negotiator's dilemma" which was discussed towards the beginning of this chapter, the Cree and Inuit negotiators responded to the Quebec government with very confrontational strategies and tactics.[175]

As a result of translating values and priorities into the language of the dominant discourse, community members' aspirations are often watered down.[176] Further, the Aboriginal claimants are forced to be as technical, adversarial and legalistic as govern ments. For example, in an article about the James Bay and Northern Quebec Agreement, the then Chief of the Crees, Billy Diamond said that

"[a]t 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."[177]

This creates a dependency upon legal consultants and technical experts, which may have long-term and widespread ramifications for local communities.[178] It also raises queries as to whether the claimants' stated negotiation positions are really those of the claimants or actually those of the consultants.[179] Aboriginal claimants are also forced to adapt to the hierarchical demands of negotiation, and at the same time, continue to try to represent local community members with accountability. This makes consensus almost impossible. It is also divisive for Aboriginal communities. According to William Morrison,

"[n]ative organizations have struggled continuously to maintain a balance between the central office and Native people in the communities. The differences exist on several levels: an educated and politically-motivated leadership negotiating on behalf of a less well educated population; the incomes of representatives and negotiators contrasting with the evident poverty in the communities; the urban, non-traditional lifestyles versus the land-based activities in the isolated settlements. The Dene and the Council of Yukon Indians have had considerable difficulties maintaining a strong liaison between organizational headquarters and the communities; in the Yukon, the 1984 A.I.P. [Agreement-in-Principle] was accepted by negotiators but rejected by the communities."[180]

Without diminishing the significance of cultural differences, it is important that they do not become tools for manipulation. There is a danger that over-emphasis of cultural differences may lead to labelling and negative stereotyping.[181] There is also a real danger that cultural differences could be used as a scapegoat by governments to mask an unwillingness to negotiate in good faith. The lack of political will on the part of governments is the central thesis of Professor Michael Asch's paper,[182] in which he says that concept impasses are not necessarily a result of "...some fundamental, unbridgeable cultural gulf between aboriginal ideas and those of Euro-Canadians."[183] Rather, impasse or breakdown of negotiations is often due to the deliberate failure of governments, representing the dominant culture, to perceive and incorporate indigenous perspectives and values.

Despite these dangers, we must still recognise and understand cultural differences in order to empower Aboriginal claimants and improve the negotiation process in the context of disputes between Aboriginal peoples and governments. The parties need to be able to find a common language and engage in a cross-cultural dialogue in order to communicate effectively with each other in a way which recognises but does not undermine the differences in culture. Cultural differences should be acknowledged and worked w ith, without making the differences into a reason for discriminatory differentiation. Difference is not a contradistinction to equality.

3.2.5 Political Power and Resource Development

The imbalance of power between the parties also operates at other levels in the negotiation process. Earlier in this section, it was suggested that governments have the power to define not only the process, but often also the broad outcome of negotiations. One of the reasons for this is the political and economic power of governments to pursue resource development in the area of a claim.[184] An example of this is the Quebec government continuing to proceed with the James Bay hydro-electricity project in the Cree and Inuit territories throughout claims negotiations.[185] Construction continued even after the Cree and Inuit claimants were successful in being granted an interlocutory injunction by Malouf J.[186] to stop construction of the project until their claim was settled.[187]

The desire to halt large-scale resource development prior to settlement is a fundamental objective of Aboriginal claimants, and should therefore be an issue for negotiation. This is a most insidious aspect of the power imbalance between the parties, since a government's power over resources enables it to pressure Aboriginal claimants to settle, sometimes on less than favourable terms.[188] For instance, the Cree and Inuit knew they could not stop the hydro-electricity project and would just have to get the best settlement they could under the circumstances.[189]

Resource development is the principal objective inducing governments to negotiate Aboriginal claims.[190] As was discussed at the beginning of this chapter, the historical evidence of this is rooted in the federal government's 1973 policy announcement to settle Aboriginal claims by negotiation, immediately following the Calder decision which put Aboriginal rights on the legal agenda. The government feared that unless it settled Aboriginal claims on its terms (as opposed to the courts'), it would lose control of the development sector.

Since then, "[s]ettlements have been achieved only when the federal government was eager to facilitate an economic development project."[191] A clear example of the motivation of the government to settle is the Agreement-in-Principle with the Inuvialuit in Canada's Western Arctic in 1978. The federal government was anxious to clear title to support large-scale petroleum and natural gas developments. However, when the project became unfeasible, the government's enthusiasm to settle waned.[192] Similarly, in the case of the Dene comprehensive claim in the MacKenzie River region of the Northwest Territories, the rise and fall of negotiations corresponds with the level of government enthusiasm for resource development.[193]

Sometimes Aboriginal claimants have been able to impede economic development by governments and this gives them significant bargaining power in negotiations. An example of this is the Dene's initial success in securing a caveat against the federal government in the Re Paulette decision.[194] Similarly, as was discussed in Chapter 1, at first instance the Cree and Inuit were successful in obtaining an injunction to halt the Quebec government's multi-million dollar project pending settlement of their land claim. This injunction made it impossible for the provincial government to ignore the Cree and Inuit case and so Quebec quickly agreed to negotiate.[195]

3.2.6 Financial Control

It is submitted that one of the most visible and powerful forms of power imbalance in negotiation is the ability of one negotiating party to control the financial resources of the other. It enables the pre-determination of process and outcomes. Financial dependency upon governments is not new to Aboriginal peoples. Negotiating comprehensive claims is a costly business, particularly for Aboriginal claimants, since their negotiators spend a lot of money travelling back and forth between the communities they represent and Ottawa or the capital city of the particular province with which they are negotiating. The ability of one party to control the financial resources of the other can be debilitating.

Aboriginal claimants are almost entirely dependent upon grants and loans from the federal government to pursue claims negotiations.[196] If the federal government is unwilling to negotiate a claim, it can either unilaterally reject the claimant's application, or fail to provide adequate financial assistance by way of loan or grant.[197] Further, the federal government has the power to suspend or withhold funding in its absolute discretion. No direct accountability is required. This directly constrains the negotiating power of the Aboriginal claimants.

One example of funding being withheld from a claimant group is the Dene, when in 1978 the federal government suspended funding for a period of two years, during which time the Dene and Metis had to agree upon a joint negotiating mechanism.[198] In 1983, funding was again suspended due to an alleged lack of cooperation between the parties.[199] Similarly, Jean Chritien, Minister for Indian Affairs in 1973, threatened to cut off federal funding to the Cree and Inuit when they initially refused to accept Quebec's offer to settle.[200]

The ability of governments to manipulate the process and control the behaviour of the claimants is a most extreme form of power imbalance. It is also indicative of the government's paternalism, reminding one of naughty children being admonished by their parents. In the words of Steve Kakfwi, the then President of the Dene Nation,

"[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..."[201]

Despite governments' monopoly on resources, Aboriginal claimants, with limited resources, are generally responsible to change the status quo by initiating and generating options for settlement.[202] Governments merely wait to respond and react to these in itiatives, rather than putting forward proposals of their own.[203] Consequently, negotiations are delayed, or commenced prematurely, before the necessary consultation and research has been completed by the claimants.[204]

3.2.7 Implementation

It is one thing to reach a negotiated settlement agreement, but its terms must be implemented if it is to have any practical effect. In the past, governments have sometimes been reluctant or slow to implement the terms of settlement agreements. This occurred, for example, with the James Bay and Northern Quebec Agreement.[205] There appear to be several reasons for this. According to Wendy Moss, difficulties and disputes in implementation arise due to (1) a lack of financial and overall planning by the fed eral government; (2) reluctance of both federal and provincial governments to fully recognise the extent of their obligations in a period of economic crisis; (3) ambiguities in the language of agreements; and (4) the lack of a body responsible for coordin ating and planning implementation.[206]

Dependence upon governments to implement settlement agreements is most disadvantageous to Aboriginal claimants. If governments fail to implement the terms of agreements, they are forced to institute costly legal proceedings for enforcement. This is yet another example of the power differential between governments and Aboriginal claimants.

It is imperative that these issues be addressed during substantive negotiations. The recent Umbrella Final Agreement between the federal government, the Yukon government and the Council for Yukon Indians does address implementation in some depth.[207] Suggestions to improve the implementation process will be outlined at the end of this chapter.

3.3 Conclusion

In summary, the power imbalance between Aboriginal claimants and government exists at, and is subsequently reinforced by, every level of the negotiation process. The power imbalance is deeply entrenched, and it is questionable whether any particular dispute resolution process would effectively address this.

However, it is submitted that the blind application of competitive negotiation theory and strategies, without even an acknowledgement of the existence or potential of problem-solving negotiation, actually consolidates this power imbalance and has the effect of further disempowering Aboriginal claimants under the rhetoric of "process". The application of competitive negotiation theory without due regard for the reality of the inherent power imbalance between the parties serves to mask those inequalities.

The process of negotiation has much more potential for resolving Aboriginal claims than its present employment would indicate. Currently, it appears that the parties are proceeding in negotiations without a full understanding or appreciation of how to take advantage of all the potential benefits and qualities that negotiation has to offer, especially in terms of maximising participation by both parties in every stage of the process, achieving mutually acceptable solutions, and ensuring fairness of process and outcomes.

Thus, effective negotiation processes that both compensate for the factors contributing to power imbalance and which strengthen Aboriginal claimants' negotiating power must be designed, by both parties. Merely "aboriginalising" an otherwise non-Aboriginal process is neither sufficient, nor appropriate. Although equality between the parties will probably never be achieved, some modifications may nevertheless improve the current negotiation process.

4.0 STRATEGIES TO IMPROVE THE NEGOTIATION PROCESS

Aboriginal people themselves should be instrumental in advocating specific reforms to the negotiation process in respect of comprehensive claims, but some suggestions are made here for consideration. For the sake of brevity, these options are only itemised in numerical form:

1. The political context of negotiations should be openly recognised and encouraged.[208] This may assist to ensure that governments are held accountable for their policies and actions to both Aboriginal claimants and the public.

2. The process should be more flexible, to accommodate any amendments or revisions needed over the course of time, due to changing circumstances. Flexibility would enhance the ongoing relationship between the parties and facilitate a long-term "social con tract."[209]

3. Implementation of settlement agreements should be negotiated during the substantive negotiations.[210] This would reduce the risk of future conflict. It would also make governments accountable for their actions. A separate implementation body could be established and funded for each agreement. As in the Yukon Umbrella Final Agreement, the objectives for implementation should include participation by Aboriginal peoples, training, speedy and effective implementation, and the strengthening of Aboriginal communities in terms of socio-economic prosperity.[211]

4. Due to the complex nature of comprehensive claims and the difficulty to compromise on some fundamental issues, single-issue settlements should be possible, which may either stand alone, or be incorporated into any subsequent comprehensive settlement.[212]

5. Interim measures agreements should be agreed, either before or during substantive negotiations, to make provision for an interest being currently affected which could undermine the process.[213] This would assist to address the current problem of gover nments pursuing resource development while claims are still pending.

6. Funding for Aboriginal claimants to research and pursue negotiations should cease to be administered by the federal government. Funds should be adequate, secure, and administered by either an independent third-party, or be placed into a trust account for the claimants.

7. It may be useful to establish an independent body to oversee the negotiation process. As this overlaps with the role of a mediator, it will be discussed in the Chapter 3.

8. The Aboriginal claimants' negotiating teams could be expanded to include community and regional negotiators.[214] This would address the current problem faced by Aboriginal negotiators in relation to lack of community support and consensual decision-ma king. However, due to the centralised and bureaucratised nature of negotiation, being responsive to local issues may undermine the efficiency of negotiations.[215]

9. One option to strengthen the confidence and thus empower the Aboriginal negotiators is to include "non-speaking", or silent supporters into the forum. Their presence would not have to impede proceedings, but would rather be a symbolic gesture.

10. Alternatively, and perhaps preferably, negotiations could be conducted on the community lands.[216] This would (1) make the process real to the people it most affects; (2) provide direct community access to the negotiators of both parties; (3) provide government negotiators with the opportunity to understand in context the practical application of the issues and concepts being negotiated; (4) promote cultural understanding; and (5) facilitate consensual decision-making.[217]

11. Parties should be trained in "principled" negotiation, where the focus is on interests, not positions, and generating options for mutual gain, rather than failing to compromise on ideal, one-sided outcomes. If this style of negotiation was employed in good faith, the theoretical benefits of negotiation may be available in the comprehensive claims forum.[218]

12. Rather than attempting to negotiate the "easy" issues at the beginning of negotiations, it may be better to deal with the more difficult issues first so that the simpler issues can be tools for compromise throughout the latter part of negotiations.[219]

13. In order to foster a positive relationship and increase the trust between the parties, negotiations need to be less formal and be complemented by some social interaction.[220] This would promote better cultural understanding, and also probably increase the parties' liking for each other. Familiarity and liking are significant factors in ensuring flexible and successful negotiations.[221]

14. Greater cultural understanding between the parties must be maximised. Cultural differences must be understood and treated appropriately. To achieve this, governments could appoint negotiators with some knowledge of and background in Aboriginal culture .[222] Similarly, Aboriginal claimants could be given the opportunity to learn more about the state, its functions and its values in a sensitive and candid way. Alternatively, or additionally, the parties could attend pre-negotiation workshops. This may serve to pave the way for fairer substantive negotiations, and increase the understanding and respect between the parties, thus equalising the power balance.

15. The negotiation process should ideally be restructured so as to place less emphasis on confrontation and technicalities, and to be much less adversarial. These features are inimical to principled negotiation, which is, in my opinion, the most appropriate form of negotiation for the resolution of comprehensive claims.

16. Prior to substantive negotiations, the parties should agree upon mechanisms to resolve disputes which may arise during negotiations and which are unable to be resolved by the parties themselves. Provision could be made, for example, as in the Yukon Umbrella Final Agreement, for unresolved conflict to be dealt with by mediation and arbitration.

17. It may be advantageous for Aboriginal claimants to keep taking the initiative in negotiations as the Cree and Inuit negotiators did, by drafting a constant flow of position papers and working documents, and tabling these in the appropriate sub-committee prior to the formulation of government positions.[223] This would assist to keep the focus on the Aboriginal claimants' positions.

18. The federal government should not be able to unilaterally decide which claims to negotiate, as this gives it an unfair advantage over the claimants. Decisions as to which claims should be negotiated should be made by an independent body which oversees the claims process.

19. Aboriginal peoples should be allowed and encouraged to participate in the formulation of claims policies. The power of the federal government to unilaterally determine claims policy is unfair, since it can and does formulate policies which operate in its favour. Thus the goals and purposes of negotiations, as well as the agenda for negotiations, should be decided by both parties.

20. Certain features of the Waitangi Tribunal in New Zealand should be adopted into the claims resolution process in Canada. The Waitangi Tribunal is discussed at some length in Chapter 3. The Tribunal's efforts to ensure a bicultural process of dispute resolution are, in my view, exemplary. Most of the Tribunal's strategies in this regard could apply equally to negotiation and adjudication. Numerous culturally sensitive strategies are employed by the Tribunal to observe and respect Maori protocol and cultural values, and minimise the adversarial nature of both adjudication and negotiation. These strategies, discussed in the next chapter, could be easily transported to the Aboriginal claims arena in Canada.

The above suggestions aim to redress the power imbalance between Aboriginal claimants and governments in the resolution of Aboriginal claims, both inherently and procedurally. Some of these options attempt to improve the nature of the relationship between Aboriginal and non-Aboriginal society generally. If we reject an ethnocentric, colonial approach, Aboriginal values and perceptions would receive legitimacy in the eyes of the dominant culture. The positive ramifications of this may substantially improv the power relations between the parties.

NOTES

1.  See, for example, H. Feit, supra note 71 at 163; B. Erasmus, Dene Nation Annual Reports 1990/91 at 5; Living Treaties: Lasting Agreements, supra note 4 at 75; E. Colvin, supra note 45 at 5; R.C. Daniel, supra note 90 at 239; R. Jamieson, supra note 80; J. Ciaccia, "The Settlement of Native Claims" (1977) 15 Alta. Law Rev. 556 at 557; K. Lysyk, "Approaches to Settlement of Indian Title Claims" (1973) 8 U.B.C.L.R. 321.

2.  Supra note 8.

3.  Canada, Perspectives in Native Land Claims Policy (A background paper prepared for the Canadian Arctic Resources Committee's Third National Workshop on "People, Resources and the Environment North of 60", Yellowknife, June 1-3, 1983 (Ottawa: Queen's Printer, May 1983) at 2-3; An Agenda for Action, supra note 4 at 24; Living Treaties: Lasting Agreements, supra note 4 at 11; Canada, In All Fairness: A Native Claims Policy (Ottawa: Queen's Printer, 1981) [hereinafter In All Fairness] at 11; R. Exell, "History of Indian Land Claims in British Columbia" (1990) The Advocate 866 at 877; R. MacGregor, supra note 69 at 107.

4.  Indian Commission of Ontario, Discussion Paper Regarding First Nation Land Claims (1990) at 6.

5.  James Bay and Northern Quebec Agreement, 1975; Northeastern Quebec Agreement, 1978; Inuvialuit Final Agreement, 1984; Gwich'en Agreement,

1992. At the time of writing, a fifth agreement, the Eastern Arctic (Nunavut) Final Agreement, is also expected to be signed within several weeks (telephone interview with David Wilson, Department of Indian Affairs and Northern Development, Ottawa, 10th May, 1992).

6.   Infra note 365 and accompanying text.

7.   For example, in 1979, four years after signing the James Bay and Northern Quebec Agreement, Billy Diamond said that he would not sign the Agreement again. See W.R. Morrison, "The Comprehensive Claims Process in Canada's North: New Rhetoric, Old Polici es" in K.S. Coates & W.R. Morrison, eds., For the Purposes of Dominion: Essays in Honour of Morris Zaslow (North York, Ontario: Captus University Press, 1989) 261 at 265.

8.   Otherwise known as "distributive", or "hard" negotiation.

9.   Otherwise known as "integrative", or "principled" negotiation.

10.  For detailed discussions as to the nature of competitive negotiation, see R. Fisher, W.L. Ury & B. Patton, supra note 6, especially c.1; J.S. Murray, "Understanding Competing Theories of Negotiation" (1986) 2 Negotiation Journal 179; C. Menkel-Mead ow, "Toward Another View of Legal Negotiation: The Structure of Problem Solving" (1984) 31 U.C.L.A. Law Rev. 754; D.G. Gifford, "A Context-Based Theory of Strategy Selection in Legal Negotiation" (1985) 46 Ohio State Law Journal 41.

11.  J.S. Murray, Ibid. at 180.

12.  Ibid. at 181.

13.  C. Menkel-Meadow, supra note 170 at 765, 783-89.

14.  J.S. Murray, supra note 170 at 180.

15.  Ibid.

16.  For a detailed discussion of "game theory" tactics and strategies, see T. Schelling, The Strategy of Conflict (Cambridge, Massachusets: Harvard University Press, 1960) and R. Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984).

17.  C. Menkel-Meadow, supra note 170 at 779.

18.  J.S. Murray, supra note 170 at 180.

19.  H. Raiffa, The Art and Science of Negotiation (Cambridge, Massachusets: Harvard University Press, 1982).

20.  See C. Menkel-Meadow, supra note 170 at 768-70 for a good description of this back and forth process.

21.  J.S. Murray, supra note 170 at 182.

22.  Ibid. at 183.

23.  Ibid.

24.  For a descriptive overview of "principled" negotiation, see generally, R. Fisher, W.L. Ury & B. Patton, supra note 6.

25.  Ibid.

26.  For a more detailed discussion of this distinction, see R. Fisher, W.L. Ury & B. Patton, Ibid. at 7-14.

27.  Ibid. at 10.

18.  J.S. Murray, supra note 170 at 180; C. Menkel-Meadow, supra note 170 at 795.

29.  J.S. Murray, Ibid. at 180-82.

30.  Ibid. at 182.

31.  C. Menkel-Meadow, supra note 170 at 795.

32.  Ibid. at 794.

33.  Ibid. at 795.

34.  Ibid.

35.  See also infra note 395 and accompanying text.

36.  D.A. Lax & J.K. Sebenius, "Interests: The Measure of Negotiation" (1986) 2 Negotiation Journal 73 at 73; J.S. Murray, supra note 170 at

181; C. Menkel-Meadow, supra note 170 at 813-17.

37.  E. Holmes-Norton, "Bargaining and the Ethic of Process" (1989) 64 New York Univ. Law Rev. 493 at 509.

38.  C. Menkel-Meadow, supra note 170 at 829.

39.  J.S. Murray, supra note 170 at 179.

40.  See, for example, J.S. Murray, Ibid. at 183.

41.  D.A. Lax & J.K. Sebenius, The Manager as Negotiator (New York: Free Press, 1986) at 29.

42.  Ibid. at 33.

43.  C. Menkel-Meadow, supra note 170 at 771.

44.  Ibid. at 784; D.G. Gifford, supra note 170 at 54.

45.  C. Menkel-Meadow, Ibid. at 778.

46.  Ibid. at 776.

47.  Ibid.

48.  R.H. Lawton, "Negotiation From Strength" (1987) 14 Pepperdine Law Rev. 839 at 850.

49.  S.B. Goldberg, F.E.A. Sander & N.H. Roger, supra note 6 at 154-55.

50.  See generally, R. Fisher, W.L. Ury & B. Patton, supra note 6;  C. Menkel-Meadow, supra note 170 at 760; D.G. Gifford, supra note 170 at 65.

51.  J.S. Murray, supra note 170 at 183.

52.  Ibid.

53.  See the section below on cultural differences, where broad cultural differences between Aboriginal and non-Aboriginal peoples are discussed.

54.  See generally, D.A. Lax & J.K. Sebenius, supra note 201 c.2.

55.  J.S. Murray, supra note 170 at 185.

56.  See R. Axelrod, supra note 176 at 118-20 and c.1 generally.

57.  C. Menkel-Meadow, supra note 170 at 829-30.

58.  Ibid.

59.  Ibid. at 833.

60.  D.G. Gifford, supra note 170 at 64 and generally 62-65.

61.  D.A. Lax & J.K. Sebenius, supra note 201 at 159-60.

62.  Ibid. at 160.

63.  Ibid.

64.  See, for example, An Agenda for Action, supra note 4 at 76; Living Treaties: Lasting Agreements, supra note 4 at 75; R. Jamieson, supra note

80 at 18-19 and 21.

65.  See, for example, D. Druckman, Negotiations: Social - Psychological Perspectives,(London: Sage, 1977) at 215.

66.  P. Puxley, "The Colonial Experience" in M. Watkins, ed., Dene Nation - the Colony Within (Toronto: University of Toronto Press, 1977) 103 at

108.

67.  D.P. Emond, supra note 65 at 12.

68.  Ibid. at 15.

69.  C. Menkel-Meadow, supra note 170 at 817.

70.  C. Knight, Chief Negotiator, Land Claims Secretariat, Yukon Territorial Government, 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 67.

71.  E. Colvin, supra note 45 at 16.

72.  Ibid.

73.  D. Druckman, supra note 225 at 185.

74.  K. Crowe, "A Summary of Northern Native Claims in Canada: The Process and Progress of Negotiations" (1979) 3 Inuit Studies 31 at 31.

75.  P. Puxley, supra note 226 at 116.

76.  M. Asch, "Wildlife : Defining the Animals the Dene Hunt and the Settlement of Aboriginal Rights Claims" (1989) Canadian Public Policy

205 at 205.

77.  Ibid. at 211-12.

78.  Ibid. at 212.

79.  G. Watts, in F. Cassidy, ed., supra note 230 at 21-22.

80.  S. Weaver, "Federal Difficulties with Aboriginal Rights" in M. Boldt & J.A. Long, eds., supra note 11, 139 at 141.

81.  At times, Aboriginal groups have developed their own policies for Aboriginal claims. See, for example, The Council for Yukon Indians, Together Today for our Children Tomorrow: A Statement of Grievances and an Approach to Settlement by the Yukon Indian People (Whitehorse, Yukon Territory: The Council for Yukon Indians, January, 1973).

82.  See, for example, An Agenda for Action, supra note 4 at 24.

83.  Formally known as the Statement of the Government of Canada on Indian Policy (Ottawa: Queen's Printer, 1969).

84.  Ibid. at 11.

85.  Living Treaties: Lasting Agreements, supra note 4 at 11.

86.  M. Boldt & J.A. Long, supra note 11 at 7.

87.  The policy of assimilation is not unique to Canada. The United States Congress and administration, for example, acted on a policy to settle Aboriginal claims in the pursuit of assimilation. On this point, see, R.L. Barsh, "Indian Land Claims Policy in the United States" (1982) 58 North Dakota Law Rev. 7 at 13.  Australian governments have also traditionally been assimilationist and thus often denied the existence of Aboriginal land rights. This approach is epitomised in a quote by the then Premier of Western Australia, Sir Charles Court, in a letter written to D .W. McLeod in November, 1980, in which he writes:

"[t]he land of Western Australia does not belong to the Aborigines. The idea that Aborigines, because of their having lived in this land before the days of white settlement, have some prior title to the land which gives them a perpetual right to demand tribute of all others who may inhabit it, is not consistent with any idea of fairness or common humanity. In fact, it is as crudely selfish and racist a notion as one can imagine..."

88.  M. Boldt & J.A. Long, supra note 11 at 8. For a detailed commentary on the White Paper in general and the Indian reaction to it in particular, see S.M. Weaver, Making Canadian Indian Policy: The Hidden Agenda

1968-1970 (Toronto: University of Toronto Press, 1981); H. Cardinal, The Unjust Society (Edmonton: Hurtig, 1969); Indian Chiefs of Alberta, Citizens Plus [the "Red Paper"] (A presentation by the Indian Chiefs of Alberta to Right Hon. P.E. Trudeau, Prime Minister, and the Government of Canada (Edmonton: Indian Association of Alberta, June, 1970).

89.  See J.L. 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) 127 at 141. 90.  See Living Treaties: Lasting Agreements, supra note 4 at 12.

91.  See, for example, J.L. Tobias, supra note 249 at 141.

92.  Supra note 8.

93.  S. Smith, supra note 142 at 5.

94.  Ibid.

95.  Supra note 7 and accompanying text.

96.  For a detailed criticism of the 1973 policy, see J. Merritt, "A Review of Current Federal Land Claim Policy" (Paper prepared for the Third National CARC Workshop, Yellowknife, June 1983).

97.  An Agenda for Action, supra note 4 at 24.

98.  Ibid.

99.  Ibid. 100.  See, for example, S. Smith, supra note 142 at 5-8.

101.  In All Fairness, supra note 163.

102.  S. Smith, supra note 142 at 8.

103.  Canada, Comprehensive Land Claims Policy (Ottawa: Queen's Printer,

1987).

104.  Ibid. at 9.

105.  W.R. Morrison, supra note 167 at 272.

106.  This proposition was also recommended by the British Columbia Task Force to review negotiation of claims, The Report of the British Columbia Task Force (Vancouver: Queen's Printer, June 28, 1991) [hereinafter British Columbia Task Force Report] at 21.

107.  K. Leghorn, Planning for Fairness: An Evaluation of the Canadian Native Claims Settlement Process (U.B.C Planning Papers) (Vancouver: School of Community and Regional Planning, August 1985) at 18.

108.  Supra note 263 at 16-17.

109.  J.R. Miller, "Aboriginal Rights, Land Claims, and the Struggle to Survive" in J.R. Miller, ed., supra note 249, 405 at 417.

110.  Ibid. at 411.

111.  Supra note 69.

112.  S. Smith, supra note 142 at 2.

113.  Dene Nation, The Dene Declaration published in M. Watkins, ed., supra note 226 at 3-4.

114.  S. Smith, supra note 142 at 5.

115.  Ibid. at 6.

116.  Ibid. at 19.

117.  Consensus Report on the Constitution, Charlottetown, 28th August, 1992.

118.  See Yukon Umbrella Final Agreement, supra note 159, c.24  at 259-65.

119.  Canada, Comprehensive Land Claims Policy supra note 263 at 23.

120.  R. Jamieson, supra note 80 at 11.

121.  There is no specific government funding for the preparation of claims for submission in the first place. Each year, a certain amount of money is allocated to various central Aboriginal organisations in the federal government's budget as "contributio n" funds. This is equivalent to a conditional grant. The government specifies the uses to which the contribution are to be put, which usually includes preparation of claims for submission by specific Aboriginal organisations. However, if the government fails to list a prospective claimant group, it has no access to government funding for the preparation of the claim (telephone interview with Audrey Stewart, Office of Native Claims, Ottawa, 6th April, 1993).

122.  K. Leghorn, supra note 267 at 19.

123.  D.P. Emond, supra note 65 at 12.

124.  K. Leghorn, supra note 267 at 10. 125.  See, for example, Georges Erasmus, "Introduction: Twenty Years of Disappointed Hopes" in B. Richardson, ed., Drumbeat: Anger and Renewal in Indian Country (Toronto: Summerhill, 1989) 1 at 13.

126.  In the 1987 revised comprehensive claims policy (at 9), 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. "In this process the claimant group will receive defined rights, compensation and other benefits in exchange for relinquishing rights relating to the title claimed over all or part of the land in question."

127.  Living Treaties: Lasting Agreements, supra note 4 at 40.

128.  Ibid.

129.  G. Erasmus, supra note 285 at 13.

130.  W.R. Morrison, supra note 167 at 263.

131.  B. Erasmus, Dene Nation Annual Reports, 1990/91 at 5.

132.  W.R. Morrison, supra note 167 at 266.

133.  Ibid.

134.  British Columbia Task Force Report, supra note 266 at 29.

135.  Ibid. 136.  Alaska Native Claims Hearings, 1971 [unpublished].

137.  Interview with D.P. Emond, Osgoode Hall Law School, 22nd April, 1993.

138.  See, for example, R. MacGregor, supra note 69 at 147, 165-68.

139.  D.P. Emond, supra note 65 at 25; B. Richardson, supra note 69 at 307.

140.  D.P. Emond, Ibid.

141.  Ibid.

142.  See, for example, R. Ross, Dancing with a Ghost: Exploring Indian Reality (Markham, Ontario: Octopus Publishing Group, 1992).

143.  D.P. Emond, supra note 65 at 30.

144.  M.E. Turpel, "Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences" (1989-1990) 6 C.H.R.Y.B.

3 at 6.

145.  Supra note 302.

146.  Ibid. at xxii "Introduction".

147.  Ibid.

148.  D.P. Emond, supra note 65 at 30. See also B. Richardson, supra note

69 at 164, 218-23, 247, 249 and 307-08; R. Ross, supra note 302; J. Egan SJ, "The Moral Basis of Land Rights" in F. Brennan SJ et al., Finding Common Ground: An Assessment of the Bases of Aboriginal Land Rights, 2nd ed. (Blackburn, Victoria: Collins Dove, 1986) 52 at 60-64. The relationship between Aboriginal peoples and the land was also discussed by Chief R. Adolph and J. Jack in a presentation to Environmental Studies, York University on 2nd February, 1993.

149.  See generally, T.R. Berger, Northern Frontier Northern Homeland, The Report of the MacKenzie Valley Pipeline Inquiry, vol. 1 (Ottawa: Printing and Publishing Supply and Services Canada, 1977) at 93-95; J. Ryan & B. Ominayak, supra note 89 at 348-49; P. Knudtson & D. Suzuki, Wisdom of the Elders (Toronto: Stoddart Publishing, 1992).

150.  D. Sandy, in B. Richardson, supra note 69 at 247.

151.  See, for example, R. Fumoleau, As Long as This Land Shall Last: A History of Treaty 8 & Treaty 11 1870-1973 (Toronto: McClelland & Stewart,

1974) at 307.

152.  D.P. Emond, supra note 65 at 31.

153.  Ibid. See also, P. Knudtson & D. Suzuki, supra note 309 at xxi-xxii,

13-14, 121.

154.  See, for example, L. Little Bear, "Aboriginal Rights and the Canadian 'Grundnorm'" in J.R. Ponting, ed., Arduous Journey: Canadian Indians and Decolonization (Toronto: McClelland & Stewart, 1986) 244 at

245.

155.  See, for example, P. Knudtson & D. Suzuki, supra note 309 at xxvii.

156.  R. Fumoleau, supra note 311 at 307.

157.  L. Lanley, "Australian Aborigines and their Land" (August, 1980) 29 Social Survey 216 at 217.

158.  See, for example, R. Ross, supra note 302 at 21-23; D.P. Emond, supra note 65 at 35. These issues were also discussed by J. Jack at a forum on democracy at the Department of Political Science, York University, on 2nd February, 1993.

159.  D.P. Emond, Ibid. at 35. See also M. Coyle, "Traditional Indian Justice in Ontario: A Role for the Present?" (1986) 24 Osgoode Hall Law J. 605 at 614.

160.  See, for example, R. Fumoleau, supra note 311 at 151; M. Boldt & J.A. Long, "Tribal Philosophies and the Canadian Charter of Rights and Freedoms" in M. Boldt & J.A. Long, eds., supra note 11, 165 at 169.

161.  M. Boldt & J.A. Long, Ibid. 162.  R. Ross, supra note 302 at 23.

163.  See, for example, B. Richardson, supra note 69 at 304-05.

164.  Ibid.

165.  See, for example, L. Malloch, Dene Government Past and Future: A Traditional Dene Model of Government and its Implications for Constitutional Development in the Northwest Territories Today (Yellowknife, Northwest Territories: Western Constitutional Forum, 1984) at 12 and 29. See also infra note 340 and accompanying text.

166.  For a detailed discussion of leadership and decision-making in modern Aboriginal cultures, and the effects of claims negotiations on local Aboriginal communities, see I. La Rusic, Negotiating a Way of Life: Initial Cree Experience with the Administrative Structure Arising from the James Bay Agreement (Montreal: ssDcc, 1979). La Rusic stresses that modern Aboriginal community leadership and decision-making are frequently as centralised and hierarchical as Euro-Canadian governments.

167.  See generally, D.P. Emond, supra note 65 at 35-36.

168.  Ibid.

169.  Ibid.

170.  H. Brody, Maps and Dreams: Indians and the British Columbia Frontier (Markham, Ontario: Penguin Books, 1981).

171.  Ibid. at 266.

172.  Ibid. at 267-68.

173.  See, for example, I. La Rusic, supra note 326 at 2 and 32; see generally, H. Feit, supra note 71.

174.  See, for example, Report of the Osnaburgh/Windigo Tribal Council Justice Review Committee (July, 1990) at 30; R. Ross, supra note 302.

175.  For a more detailed discussion of these negotiations, see B. Richardson, supra note 69; R. MacGregor, supra note 69; H. Feit, supra note 71, especially at 166.

176.  D.P. Emond, supra note 65 at 28.

177.  B. Diamond, "Aboriginal Rights: The James Bay Experience" in M. Boldt & J.A. Long, eds., supra note 11, 281 at 281.

178.  For a very thorough discussion of these issues, see I. La Rusic, supra note 326.

179.  Ibid. at 32.

180.  W.R. Morrison, supra note 167 at 270.

181.  J.Z. Rubin & F.E.A. Sander, "Culture, Negotiation and the Eye of the Beholder" (1991) 7 Negotiation Journal 249 at 250-51.

182.  Supra note 236.

183.  Ibid. at 216.

184.  As to whether governments have any legal authority to pursue development pending settlement of land claims, the issue has not yet been the ratio of a particular case. However, due to obiter in Sparrow and the constitutional protection of Aboriginal rights afforded by section 35 of the Constitution Act, 1982, it is fairly certain that governments have no legal authority to pursue development projects which impact negatively on Aboriginal rights before claims are settled. In reality, however, this has not always stopped them. See, for example, K. Leghorn, supra note 267 at 17.  185.  See H. Feit, supra note 71 at 161.

186.  Supra note 87.

187.  B. Richardson, supra note 69 at 299.

188.  K. Leghorn, supra note 267 at 17.

189.  See, for example, B. Richardson, supra note 69 at 319 and 324; see generally, R. MacGregor, supra note 69.

190.  B. Richardson, Ibid. 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, supra note 142 at

5.

191.  Living Treaties: Lasting Agreements, supra note 4 at 13. See also, H. Feit, supra note 71 at 165; W.R. Morrison, supra note 167 at 264 and

270.

192.  An Agenda for Action, supra note 4 at 24.

193.  See generally, S. Smith, supra note 142.

194.  Supra note 69.

195.  H. Feit, supra note 71 at 162.

196.  K. Leghorn, supra note 267 at 11.

197.  Ibid.

198.  In All Fairness, supra note 163 at 30; K. Crowe, supra note 234 at

36; W.R. Morrison, supra note 167 at 267.

199.  W.R. Morrison, Ibid.; Canada, Fact Sheets: Native Claims in Canada, supra note 2 at 30.

200.  R. MacGregor, supra note 69 at 115; B. Richardson, supra note 69 at

305.

201.  S. Kakfwi, (Address to the Canadian Arctic Resources Committee, Yellowknife, June 1-3, 1983) [unpublished].

202.  R. Jamieson, supra note 80 at 42. 203.  Living Treaties: Lasting Agreements, supra note 4 at 84. 204.  R. Jamieson, supra note 80 at 42.

205.  See H. Feit, supra note 71 at 168; R. MacGregor, supra note 69 at

153-156, 173 and 183; W. Moss, "The Implementation of the James Bay and Northern Quebec Agreement" in B.W. Morse, ed., Aboriginal Peoples and the Law (Ottawa: Carleton University Press, 1985) 684.

206.  W. Moss, Ibid. at 686.

207.  See the Yukon Umbrella Final Agreement, supra note 159 at 283-92.

208.  British Columbia Task Force Report, supra note 266 uses the term "political negotiations" instead of just negotiations.

209.  During substantive negotiations, the parties would need to identify which topics should be open for future amendment.

210.  British Columbia Task Force Report, supra note 266 at 30.

211.  For a more detailed discussion of implementation proposals, see the Yukon Umbrella Final Agreement, supra note 159 at 283-92.

212.  British Columbia Task Force Report, supra note 266 at 31.

213.  Ibid. at 63.

214.  D.P. Emond, supra note 65 at 27.

215.  Ibid.

216.  C. Knight, supra note 230 at 67.

217.  Ibid.

218.  Ibid. at 64.

219.  D.P. Emond, supra note 65 at 21.

220.  Ibid. at 20.

221.  D. Druckman & B.J. Broome, "Value Differences and Conflict Resolution" (1991) 35 Journal of Conflict Resolution 571 at 572.

222.  K. Leghorn, supra note 267 at 11.

223.  H. Feit, supra note 71 at 166.