The settlement of native claims is not a mere transaction. It would be wrong, therefore, to think that signing a piece of paper would put the whole question behind us. One of the mistakes of the past has been to see such settlements as final solutions. (Justice Thomas Berger, 1977)
Berger’s statement, from his 1977 Mackenzie Valley Pipeline Inquiry report, echoes loudly in 2014. He was warning against approving plans to put gas and oil pipelines in the Yukon and the Northwest Territories’ Mackenzie Valley in Canada before settling native claims to the land. Such approval, he suggested, would decide the future of native northern people for them and undermine their claim to self-determination.
Forty years on, Berger’s urging that settlements not be seen as superficial transactions has renewed relevance. In the intervening years, the Yukon has seen 11 of its 14 First Nations sign final agreements – settling ongoing land claims with the federal and territorial governments and resulting in self-government. These agreements will be put to the test this summer, with consequences that could reach far beyond the sparsely-populated region of northern Canada.
In July 2014, the Supreme Court of Yukon will consider a court case launched by two First Nations and two environmental organisations over a land-use planning process for the Peel Watershed in northeast Yukon. Berger is again in the spotlight as counsel for the plaintiffs. The plaintiffs are challenging the territory’s land-use plan, contending that the Yukon government violated consultation procedures under the Umbrella Final Agreement (the framework under which First Nations negotiate their settlement agreements in the territory).
A brief note on context: in 2004, the Yukon established the Peel Watershed Regional Planning Commission to develop a land-use plan for the Yukon’s part of the Peel River Watershed, which flows north from the Yukon through the Northwest Territories and into the Beaufort Sea. This area includes “Settlement” and “non-Settlement” land (categories allocating land rights under the Umbrella Final Agreement) and includes the territories of four First Nations (three of which are Yukon First Nations). The Commission submitted its initial recommended land-use plan in 2009 and a revised version in 2011, following further multi-stakeholder consultations. After further negotiations, the Yukon government released the Peel Watershed Regional Land Use Plan in January 2014, which differs substantially from the Commission’s plan.
The crux of the case is whether, as the plaintiffs charge, the Yukon government made changes to the Commission’s plan in a way that violated the process of consultation with the First Nations, or whether, as the defendants claim, the Yukon government’s amendments to the land-use plan followed the correct process.
At stake is far more than the future of development and conservation in the Peel region. In Berger’s words, in February 2014, this is the first test case of these constitutionally-entrenched agreements. The court’s decision will have consequences for how final agreements will shape future interactions between First Nations and other governments, not only in the Yukon, but in Canada more broadly.
The Yukon is not the only place in the country where indigenous land rights are in the news and the courts. A landmark ruling in June 2014 by the Supreme Court of Canada granted recognition of aboriginal title over more than 1,700 square kilometers to the Tsilhqot’in First Nation in British Columbia. This is the first time ever that the high court has granted Aboriginal title to a First Nation. The ruling recognises that occupancy and control over land can occur beyond specific settlement sites, and clarifies legal questions over how to determine aboriginal title, and what rights and constraints are subsequently conferred.
The ruling ends decades of contestation by the Tsilhqot’in First Nation, which began in 1983 over a timber license granted by the British Columbia provincial government on unceded territory. First Nation leaders, legal experts, and scholars anticipate the case will affect other ongoing indigenous land rights claims in Canada. Some anticipate the decision could have implications for hydropower developments in Manitoba, mining and smelting in Ontario, resource revenue sharing in Saskatchewan, and pipeline projects in British Colombia, notably the contentious and recently federally-approved Northern Gateway project.
The judiciary, it appears, is being asked to take a significant role in negotiations concerning development activities. While many First Nations continue to be active in consultation processes and public hearings and others engage in direct action, an increasing number are turning to the courts. Putting their constitutional rights to the test – with, in some cases, implications for the validity of treaties – First Nations and their allies are using legal tools to contest the rapid spread of resource development plans.
Beyond Canada, these cases are significant for global debates on indigenous rights, the balance between environmental protection and resource extraction, and the roles of the legislature and judiciary in mediating competing social demands.
These cases serve to confirm what Justice Berger stated in the 1970s – that signed agreements are only part of the process of settlements and reconciliation of rights. The deliberations of the courts are significant – and we should watch the Yukon closely to see how the Peel hearings are resolved – but even a clear decision on the case will not remove the need for continued communication, deliberation, and compromise.
Photo credit Kate Harris www.kateharris.ca