Academic journal article Canadian Public Administration

Implementing Comprehensive Land Claims Agreements in Canada: Towards an Analytical Framework

Academic journal article Canadian Public Administration

Implementing Comprehensive Land Claims Agreements in Canada: Towards an Analytical Framework

Article excerpt

Introduction

Most federal systems were not designed to include Indigenous governments as constitutional units. In countries such as Australia, Canada, and the United States, the founders assumed that their Indigenous communities would remain subservient to the state or that they would eventually assimilate into mainstream society. Much to their surprise, Indigenous communities in these countries organized and mobilized against assimilative initiatives by seeking political and legal recognition of their rights, title, and constitutional orders through a variety of mechanisms (Papillon 2012; Scholtz 2006).

Nowhere have these efforts been more pronounced than in Canada where Indigenous groups have engaged in lobbying, litigation, negotiation and protests to achieve a range of public goods. One important tool they have used to advance their interests has been comprehensive land claims agreements, otherwise known as modern treaties. These agreements are constitutionally protected under s. 35 of the Constitution Act, 1982 and negotiated between the federal government, Indigenous communities and the provincial/territorial government in which the Indigenous groups are located. Depending on one's perspective, the agreements either transform Indigenous land tenure into property regimes that are legible to the Canadian state or they transfer title and jurisdiction from the Crown to the Indigenous groups in accordance with Canadian law. Regardless, in addition to land ownership and cash, these agreements recognize Indigenous communities as having jurisdiction over things like fish and wildlife, plants, water and ocean management, archaeological materials, environmental regulation, land use planning, and resource royalties, among other things. Some modern treaties also include self-government chapters that, under Canadian law, empower Indigenous communities to form their own governments with jurisdiction over policing, culture and recreation, housing, education, health care, and local government (Alcantara 2013). In short, these agreements are potentially transformative and are at the core of Canada's model of treaty federalism (White 2002) because they are constitutionally protected documents that provide Indigenous communities with a range of tools to pursue their interests within the confines of the Canadian state.

Given the importance of these agreements, scholars in Canada have spent considerable time studying them (Alfred 2008; Belanger 2008; Slowey 2008). Surprisingly, however, virtually nothing has been written on the dynamics of modern treaty implementation, which involves federal, provincial/territorial, and Indigenous actors working to put into practice constitutionally-protected provisions relating to the management and governance of Indigenous lands and peoples. This lacuna is surprising on two levels. For practitioners, Indigenous communities constantly complain that the federal, provincial, and territorial governments routinely fail to fully respect and implement the modern treaties (Fenge 2008; Land Claims Agreement Coalition n.d.) and yet few theoretical tools are available to make sense of these dynamics and complaints. For academics, Canadian federalism has been transformed by the emergence of new Indigenous governments and non-governmental actors (for example, land claims corporations), all of whom participate regularly in intergovernmental bargaining forums. While some of these interactions and forums have been studied (Belanger 2008; Papillon 2012; White 2002), others such as modern treaty implementation have not, so our knowledge of contemporary intergovernmental relations is partial and incomplete.

This article contributes to the literature by building an analytical framework for studying the politics of intergovernmental relations in the implementation of modern treaties in Canada. Its primary goal is to develop an analytical framework and typology to guide future theoretical and empirical analyses of this phenomenon and thus follows in the tradition of scholars who work in the area of typological theory writ large (George and Bennett 2005; Elman 2005) and those who develop typologies specific to Indigenous politics (Abele and Prince 2006). …

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