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Craig, Donna --- "Recognising Indigenous rights through co-management regimes: Canadian and Australian experiences" [2002] NZJlEnvLaw 7; (2002) 6 NZJEL 199

Last Updated: 25 January 2023

199

Recognising Indigenous Rights through Co-Management Regimes: Canadian and Australian Experiences

Donna Craig^*

Indigenous co-management of lands, waters, seas and resources is rapidly expanding throughout the world. The most highly regarded models have been developed in Australia and Canada. Their “success” has been largely anecdotal and based on informal practices and relationships developed by dedicated participants. The focus has been on practical means of making co-management work on the ground. Much has been gained in this process. However, fundamental conflicts and issues relating to Indigenous rights have often been ignored. It cannot be assumed that conservation and managerial agendas will be the same as the aspirations of Indigenous owners. This article critically reviews the very diverse Australian and Canadian experiences, having regard to international and national legal standards recognizing the comprehensive rights of

• * The author is an Associate Professor at the Centre for Environmental Law, Macquarie University, Australia. The author holds a B.A., LL.B. from the University of New South Wales (Australia) and a LL.M from Osgoode Hall Law School, York University (Canada). She is director of their Environmental and Indigenous Rights Program and has over twenty three years experience teaching and practicing environmental law. This involved undertaking some of the earliest research and practice in the areas of international environmental law, indigenous rights and environmental and social and cultural impact assessment. Her recent books include Indigenous Peoples and Governance Structures: A Comparative Analysis of Land and Resource Rights (with Garth Nettheim and Gary Meyers, Canberra, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002) and Capacity Building for Environmental Law in the Asian and Pacific Region: Approaches and Resources (Two Volumes edited with Nicolas A. Robinson and Koh Kheng-Lian, Manilla, Asian Development Bank, 2002). The author wishes to acknowledge the wonderful colleagues and students from the Indigenous Peoples Policy and Law Program, James E. Rogers College of Law, University of Arizona where she was Visiting Professor in 2002. In particular, she gratefully acknowledges the research assistances and contributions from Donald Nicholls, B.A, LL.B., B.C.L., LL.M (2002) and Megan McClurg, B.A., J.D. (2002). The views expressed in the paper are those of the author.

Indigenous peoples, and suggests that a more “rights based” approach to co-management is needed. More careful attention also needs to be given to the contexts and parties involved. Indigenous roles will vary depending on whether co-management is part of self government negotiations, or more limited agendas related to conservation, sustainable resource management or mainstream planning and development frameworks.

I. INTRODUCTION

There is a growing literature about co-management processes and practices, predominantly in Australia and Canada. There is a wide diversity of models and approaches, depending on the overall political and legal recognition of the comprehensive and integrated rights of the Indigenous peoples involved, past experiences with cross-cultural institutions and the bona fides of the participants. The initial review of the literature, case studies and interviews with participants indicates that the concept of co-management should be critically reviewed having regard to the legal frameworks that underpin it, and the evolving international and national law recognizing the rights of Indigenous peoples.

This article commences with an overview of relevant international legal norms. This is followed by an introduction to the concept of co-management as it has evolved in Canada and Australia. The related concept of collaborative management will also be discussed, as it is particularly relevant to Indigenous participation in resource management in areas such as wildlife, forests and fisheries. There is an urgent need to reconsider the approaches taken in co-management in the following factors and contexts:

(a) The nature of the parties

Co-management arrangements vary considerably depending on the history, the experience and expectations of the Indigenous peoples involved, the constitutional powers of governments and their political will and track record in recognizing Indigenous rights. For example, the Australian federal government appears to implement stronger forms of co-management compared to State and Territory governments.

(b) The nature of the resources, areas or processes subject to co-management Co-management will vary depending on whether the principal purpose is to enable Indigenous peoples to reclaim their land and resources, to manage them as part of the conservation estate (eg national parks) or to participate in wider processes for the sustainable use and management of valuable natural resources and wildlife (eg, forests, fisheries). For example, community based

management initiatives often adopt conservation and resource management as the primary objectives.

(c) Indigenous Participation in the Mainstream Planning and Development Process

Wider legal, planning and policy frameworks may incorporate indigenous co- management into environmental impact assessment and other processes related to the use and management of resources, energy and other areas of critical concern to the long-term future and viability of Indigenous nations and the dominant culture.

(d) Long term Strategies of Indigenous Nations for Recognition of their Comprehensive and integrated rights, usually embodied in the aspiration for self-determination.

Co-management can be incorporated as a key aspect of “living treaties” for modern Indigenous governance such as the Canadian Comprehensive Land Claims settlements (often referred to as regional agreements) and related self government arrangements (such as Nunavut and Nisga’a governments).

(e) Co-management offered as a compromise strategy by governments that are unwilling to engage in the political development of Indigenous self- determination.

This is often associated with co-management arrangements that require extinguishment of native title and fail to recognize Indigenous law. These arrangements may provide for indigenous participation, rather than true co- management, as the key decision-making power remains with government with few check and balances.

Australia and Canada have adopted a diverse range of approaches and there are many practical issues associated with each co-management arrangement. There seems to be general agreement that strong legal frameworks do not work without good practice and trust evolved over a considerable period of time. Much of the literature has focused on these practical concerns.¹ However, the last twenty years has seen many changes in the international and national legal recognition of Indigenous rights to land, seas, waters, living and non-living natural resources. Modern approaches to international law are challenging traditional monolithic concepts of sovereignty and there is growing emphasis on the new generation of

1. Corbett, T. et al., “Achieving Indigenous Involvement in Management of Protected Areas: Lessons from Recent Australian Experience” (1998) Aboriginal Politics and Public Sector Management Research Paper No. 5.

collective and integrated rights of peoples. The evolution of the international regime relating to Indigenous rights should be seen as part of this wider, and often overlapping, approach to human rights discussed below.

Australia and Canada are chosen as the main focus because modern approaches to indigenous co-management are most highly developed in these two jurisdictions. They are comparable “first world” nations that have recognized Aboriginal native title and there is significant experience with cross cultural negotiated settlements and management regimes. In Australia and Canada, Indigenous peoples are gaining greater government recognition of their native title, statutory rights, and constitutional rights. In Canada, this may extend to self government. Both nations have ratified major human rights conventions (eg, International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights) and modern environmental conventions (eg Convention on Biological Diversity). This article critically considers the strategies and frameworks for Indigenous co-management, in Canada and Australia, and the extent to which they reflect contemporary legal standards for indigenous, human and environmental rights.

Indigenous co-management has always been more than a bureaucratic process. The practical gains that have been delivered to some indigenous peoples should not obscure the need for continuous improvements to recognize and implement their comprehensive rights. Co-management arrangements, in their many forms and contexts, are spreading around the world. The positive and negative aspects of indigenous co-management in Australia and Canada will need careful consideration before applying these approaches to the developing world.

II. STANDARDS AND APPROACHES TO HUMAN, ENVIRONMENTAL AND INDIGENOUS RIGHTS

Traditionally, international law has focused on state sovereignty and nation states have predominated as legitimate parties. This has changed to a limited extent, in regimes such as the human rights conventions, which focus on the rights of the individuals. The role of Non Government Organizations in the negotiation and implementation of some global and regional environmental conventions has also challenged the dominant concept that international law purely regulates the relationship between nation states. These new challenges, in modern international law, relate to the:

• concept and formulation of the rights;
• enforcement, monitoring and financing of the obligations of developing nations on an equitable basis;

• need to develop practical, affordable and innovative implementation strategies that empower, legitimise (in terms of the dominant political order) and work effectively for local communities and Indigenous and tribal peoples;
• promotion of the rapid dissemination and adaptation of comparative experiences relating to implementation;
• need to address the collective rights of peoples (particularly raised in ILO 169 and the Draft UN Declaration on the Rights of Peoples).

Often, Indigenous peoples are seeking both collective and individual rights. The predominant Western legal traditions, based on social contract theory, tend to pit individual rights against the State.² Indigenous strategies often involve this defensive role but they also assert their collective rights and (internal) collective obligations to maintain and continue to evolve their cultures and nations in the face of threats such as discrimination, dispossession, environmental change and the cultural, economic impacts of the dominant society.

Because Indigenous peoples have integral and unique relationships with the earth (including land, seas, resources, wildlife) they do not fragment or compartmentalise their rights and obligations relating to their ecological, spiritual, cultural, economic and social dimensions.³ The accumulated knowledge of countless generations, acquired in this way, has become a matter of global interest and exploitation.⁴ This can also be seen as a fundamental illustration of sustainable development as it draws “wisdom” from the idea of integrating these dimensions. Sustainable development (SD) has now become the central focus of modern environmental policy and the rapidly evolving “third generation of human rights”, such as the right to development and the right to a healthy environment (see national constitutions with rights to environment quality such as Philippines, Pakistan, and India).

Human rights are often characterised as follows:

• civil & political rights (first generation rights);
• economic, social and cultural rights (second generation rights);
• the (evolving) right to development and the right to a healthy environment.

Article 1 of the Declaration on the Right to Development⁵ reads:

2. Clinton, R.N., “The Rights of Indigenous Peoples as Collective Group Rights”(1990) 32

Arizona Law Review 739, 740.

3. Posey, D.A., “Introduction: Culture and Nature — The Inextricable Link” in UNEP, Cultural and Spiritual Values of Biodiversity (1999) 3–16.
4. Ibid at 3.

5 GA. Res 128, UN GAOR (41st mtg), UN Doc. A/Res/41/128 (1986).

The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.

An example of this newer right is Article 30 in the Convention on the Rights of the Child:

In those States in which ethnic, religious or linguistic minorities or persons of Indigenous origin exist, a child belonging to such a minority or who is Indigenous shall not be denied the right, in community with his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.⁶

International law and policy relating to SD was promoted by the Rio Declaration, Agenda 21, Convention of Biodiversity (CBD), Framework Convention on Climate Change (FCCC) and the Forest Principles which were the key outcomes of United Nations Conference on Environment and Development (UNCED) in 1992.⁷ The rights of Indigenous peoples are specifically mentioned in each of these global declarations and instruments except for the FCCC.

Arguably, basic provisions in international human rights instruments have become part of international customary law, known as “jus cogens”, and they are inextricably related to the rights to environment and development. Important jus cogens norms are as follows:

• the right to be free from genocide (including cultural genocide);
• the right to life (including the right of people not to be deprived of their own means of subsistence);
• the right of peoples to self-determination.⁸

Ward goes on to argue that these provisions in human rights instruments (now jus cogens) establish:

[T]he right to be free from hunger, the right to an adequate standard of living, the right to health, free personal development, sustainable community development using environmental and social impact assessments, and the right to integrity of the community as a whole.⁹

6. GA Res. 25, UN GAOR (44th mtg), UN Doc. A/Res/44/25 (1989).
7. Craig, D. & Ponce Nava, D., “Indigenous Peoples’ Rights and Environmental Law” in Sun Lin & Kurukulasuriya, Y. (eds), UNEP’s New Way Forward: Environmental Law & Sustainable Development (1995).
8. See Ward, E., Indigenous Peoples between Human Rights and Environmental Protection

(1993)121–122.

9. Ibid.

Such overlaps have caused the United Nations to begin preparing a Declaration of Principles on Human Rights and the Environment.¹⁰ This Draft Declaration commences:

1. Human rights, an ecologically sound environment, sustainable development and peace are interdependent and indivisible.
2. All persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social rights are universal.

1. Integrated Rights Approaches

It no longer makes any sense to talk about “categories of rights”. None of the human rights instruments attempt any ranking — all rights and freedoms are placed on an equal footing. “All rights are, like humans themselves, inextricably singular and social.”¹¹ Therefore, “first” and “second” generation should be approached as a unity rather than a duality.¹² Brownlie maintains that there has been an assumption lying behind the classical formulation of human rights standards that “group rights would be taken care of automatically as a result of the protection of the rights of individuals”.¹³ This approach has been inadequate to protect the rights of Indigenous peoples and there is an urgent need to advance international law in the direction of a more unified conceptual framework.

International Labour Organisation Convention 169 (ILO 169) and the Draft Declaration on the Rights of Indigenous Peoples (UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities) provide examples of the integrated rights approach (the Draft Declaration being a better example). ILO 169 and Draft Declaration should be understood within the wider framework of international environmental, Indigenous rights and human rights law. This is discussed by Darrell Posey who argued that there has been a gradual evolution of sui generis “Traditional Resource Rights”.¹⁴ Thus, Indigenous rights in international law and policy are not the “poor relation”. They are a catalyst for developing more unified and effective approaches

10. Meeting of Experts on Human Rights and Environment — Geneva, 16–18 May, 1994.
11. Shutkin, W.A., “International Human Rights Law and the Earth: the Protection of Indigenous Peoples and the Environment” (1991) 31 Virginia Journal of International Law 479, 487.
12. Ibid, at 488.
13. Brownlie, I., in Crawford (ed), Rights of Peoples (1998) 16.
14. Posey, D., Traditional Resource Rights: International Indigenous for Protection and Compensation for Indigenous Peoples and Local Communities (1996).

to human rights and sustainable development which should be recognised and implemented in co-management regimes.¹⁵

2. Compliance With International Standards

The enforcement of international law and policy, relating to the human and environmental rights of Indigenous peoples, is often inadequate with the possible exception of the Convention on the Rights of the Child, ILO 169 and the optional protocol under the Convention on Civil and Political Rights. Regional human rights conventions (Europe and the Americas) arguably have stronger enforcement and complaint mechanisms. Increasingly, remedies and settlements being sought by Indigenous peoples involve co-management regimes. Many disputes, such as the Awas Tingni case discussed below, arise out of resource allocation and management decisions on Indigenous lands that are made without their involvement.

(a) Inter-American Human Rights Regime

The Organization of American States (OAS) is a regional agreement, founded on the principle that States, comprising North, Central and South Americas, must unify their efforts to ensure personal liberty and social justice based on essential human rights. The OAS system promotes the protection of human rights by establishing substantive norms, supervisory institutions, and accessible petition procedures. Member States of the OAS must accept the human rights standards indicated in the Charter of the Organization of American States and the American Convention on Human Rights, which are enforced by the Inter-American Commission on Human Rights.

The characteristic that distinguishes it from the United Nations system is the accessibility of the “communication” of a petition is not restricted to Non- Government Organizations or member states, but the individual, family relation or third party may initiate proceedings. The Commission can appoint moderators to oversee “friendly settlement” proceedings whereby the parties agree, acting in good faith, to attempt to reach a resolution of the violations and have a six month deadline. A restriction on the OAS system for the protection of human rights is that similar proceedings cannot be ongoing in the United Nations system concurrently. The finding of a violation of a member State and subsequent ruling of the Inter-American Commission is not legally binding on the parties. However,

15. For further discussion and Guidelines see IUCN Task Force on Indigenous Peoples, Indigenous Peoples and Sustainability: Cases and Actions (1997) and Beltran, J., & Phillips, A., Indigenous Peoples and Protected Areas: Principles, Guidelines and Case Studies (2000).

should the member State or Commission wish to pursue the matter further, they may petition the Inter-American Court of Human Rights for a hearing. The State must first accept the jurisdiction of the Court in order to make any decision legally binding on the parties and any non-compliance will be then enforceable in the domestic court system.

A recent decision of the Inter-American Court of Human Rights, The Mayagna (Sumo) Indigenous Community of Awas Tingni v The Republic of Nicaragua (Awas Tingni), was a landmark decision of the Court that recognized duties of the State to demarcate and preserve the integrity of ancestral lands of Indigenous peoples within its boundaries. It further recognized the right of all persons to expeditious and fair access to competent tribunals as not only a pillar of the American Convention but a Rule of Law in democratic societies.

The Court stated that it is not enough for Nicaragua to acknowledge the rights of indigenous peoples to their ancestral territories. It must put this recognition into practice by not engaging in actions that would diminish or affect Indigenous rights or interests in ancestral lands. This decision indicates that compliance may require an effective system of national implementation to give practical meaning to the legal rights of Indigenous peoples. As compensation for moral damage, by allowing the harvesting of natural resources on traditional Awas Tingni land without notification, consultation or compensation, the Nicaraguan government is required to pay a monetary award of US $50,000.00.

(b) United Nations Permanent Forum on Indigenous Peoples

The announcement of the United Nations Decade for the World’s Indigenous Peoples was indicative that the recognition of the fundamental rights of Indigenous peoples will continue to evolve internationally and nationally. The Permanent Forum on Indigenous Peoples, a new subordinate organ of the United Nations Economic and Social Council, has an innovative internal organization. It is comprised of eight representatives of Indigenous peoples and eight experts chosen by the member states of the United Nations, a combination not previously seen in other United Nations entities. The Forum is in response to the growing body of work on Indigenous issues at the international level and the resounding success and participation of Working Groups¹⁶ under the Human Rights Commission.

16. Under the Sub-Commission on the Protection and Promotion of Human Rights, the Working Group on Indigenous Populations comprised of a panel of experts created a Draft Declaration of Indigenous Rights and provided a platform for indigenous issues. Under the direction of the Commission on Human Rights, the Working Group on the Draft Declaration on the Rights of Indigenous Peoples continues the shaping of the Draft Declaration for adoption of the Commission and is comprised of member states with the consultation and extensive participation of indigenous groups.

3. New Directions: Traditional Resource Rights

The Traditional Resource Rights (TRR) concept was first elaborated in an article by Posey entitled: “Traditional Resource Rights: De Facto Self-determination for Indigenous Peoples”.¹⁷ The term Traditional Resource Rights describes the many ‘bundles’ of rights existing and being developed which can be utilised for the protection of and compensation for the use of traditional knowledge and resources. Traditional resources include plants, animals, and other material objects, like minerals and cultural artifacts, which may have intangible (eg, sacred, ceremonial, heritage, or aesthetic) qualities. Traditional resources may also be totally intangible, metaphysical, or non-quantifiable with no physical manifestations, such as systems of knowledge. The term “property” is inappropriate, since property in traditional societies frequently has intangible, spiritual manifestations, and, although worthy of protection, can belong to no human being.

TRR encompasses not only conventional intellectual property rights mechanisms but basic rights and customary law defined in, or accommodated by, national and international laws, agreements and declarations. It is proposed that the TRR concept can form the basis for sui generis systems for protection and benefit-sharing. Also, it could be implemented locally, nationally and internationally as a set of principles to guide the process for dialogue between Indigenous and local communities, and governmental and non-governmental institutions. TRR could, for example, guide the development of innovative contracts providing benefits to local communities in exchange for the transfer of information and biogenetic material.

In short, TRR-guided negotiations can offer challenging opportunities for new partnerships based on increased respect for Indigenous peoples and their knowledge, new codes of ethics and standards of conduct, socially and ecologically responsible practices, and holistic approaches to sustainability. At the very least TRR-oriented discussions are certain to be more fruitful than those based on IPR because TRR brings the environmental concerns of local communities, and issues relating to SD and global trade, into the human rights debate. The process of developing TRR will involve further dialogue, debate and consciousness-raising.

4. Concept Of Ecologically Sustainable Development

The Brundtland Report¹⁸ has popularised the concept of SD. Taken out of the context of the Report such popularity is understandable. It seems to imply that we can continue to have economic growth, so long as we develop “better” ways

17. Posey, supra note 14.
18. World Commission on Environment and Development (WCED), Our Common Future (1987).

of managing the environment. The ambiguity of the term allows for such an interpretation. The common usage of the concept of sustainability originated in relation to sustainable yield from biological and physical resources.

We have now extended the concept to the socio-economic realm where the goal is not a sustained level of a physical stock or physical production from an ecosystem over time, but some sustained increase in the level of societal and individual welfare. This broader context was generated by the Brundtland Report, which stated that a wide range of other economic, social and cultural changes was essential to the objective of SD. A particular emphasis was given to poverty alleviation, equity, public participation and culturally appropriate strategies.

For the purposes of a critical reappraisal of Indigenous co-management regimes, it is important to recognise these integrated and comprehensive rights of Indigenous peoples as being an emerging international standard in international law relating to human rights, SD and Indigenous rights. Co-management can be seen as a practical implementation strategy for these standards, particularly at the national level.

III. CO-MANAGEMENT DEFINITIONS AND APPROACHES

Co-management exists in many different forms within jurisdictions such as Canada and Australia. It is usually a formal arrangement between local, state and federal parks and national resource management systems and other stakeholders such as Indigenous owners and claimants. Co-management can be contrasted to the normal hierarchical, “scientific” approaches to management that usually focus on an aspect of the environment, such as forestry or fisheries, or a specific area. Usher contrasts this with Aboriginal management systems based on communal property arrangements and strong cultural norms.¹⁹

A Canadian report defines co-management as involving:

Stakeholders working together to manage a resource in a sustainable way that achieves the goals of all parties consistent with their roles. Co-management does not imply legislated authority, jurisdiction, or devolution.²⁰

The above definition is carefully neutral on the issue of power sharing. Another definition of co-management defines it as:

19. Usher, P., “Contemporary Aboriginal Lands, Resources and Environmental Regimes: Origins, Problems, and Prospects” (1993) Background paper prepared by Canadian Royal Commission on Aboriginal Peoples 87–88.
20. Saskatchewan Indian Confederated College, Co-Managing Natural Resources with First Nations: Guidelines to Reaching Agreements and Making them Work (1996) Department of Indian Affairs Consultancy Report.

Power sharing in the exercise of resource management, between a government agency and a community or organization of stakeholders.²¹

This definition is more consistent with the Australian approach, known as joint management, of national parks where power is shared with an Aboriginal majority on the board of management. This form of management is most commonly associated with conservation strategies for important protected areas where the Indigenous owners live or retain significant interests within the area. It is preferable to reserve the terms co-management and joint management for the more genuine attempts at a power sharing arrangement based on an equal partnership. A more diluted form of management incorporates Indigenous participation without power sharing and is often referred to as consultative management.²²

The approach to power sharing and management is more complex when there is a relatively large number of parties involved who have a stakeholder interest, where the management regime relates to a wide geographic area, such as a region, or the focus is on resource management relating to areas such as forestry, fisheries, wildlife and water resources. The object of these regimes is usually on a longer term planning and resource allocation process and it often involves many legitimate stakeholders with deeply entrenched conflicts and positions. The approach taken to develop more participatory and transparent management is sometimes referred to as collaborative management.

Collaborative management may involve Indigenous stakeholders as well as other relevant stakeholders. In the context of a protected area, the World Conservation Union (IUCN) suggests that the agency with jurisdiction over the area could develop partnerships which detail and guarantee the respective rights and responsibilities of stakeholders with regard to the protected area.²³ Through their participations, an agreed set of issues, priorities and a management plan can be prepared along with procedures for conflict resolution and negotiating collective decisions, procedures for enforcing such decisions and specific rules for monitoring, evaluating and reviewing the partnership agreement.²⁴ A distinction should be made between collaborative and co-management as collaborative management is rarely associated with a clear devolution of government power to the stakeholders.

21. Ross, H., “New Ethos — New Solutions: Indigenous Negotiation of Co-operative Environmental Management Agreements in Washington State” [1999] AUIndigLawRpr 24; (1999) 4 Australian Indigenous Law Reporter 1–28.
22. Ibid.
23. Fisher, R.J., Collaborative Management of Forests for Conservation and Development (1999) 10–15.

24 Ibid, 27–45.

The following discussion of co-management in Australia, will emphasize the power sharing arrangements associated with the management of federal national parks such as Kakudu and Uluru, with some contrasting examples of state government and Aboriginal partnerships such as Nitmiluk, Gurig and Mutwintji National Parks. There are few well-documented examples of co-management or collaborative management of land and natural resources outside protected areas in Australia. The Kowanyama land and natural resource management strategy, in the Cape York Peninsula in Queensland, will be used as an example of evolving Indigenous self-governance unmediated by government agencies or models of co-management.

Co-management in Canada will largely be considered in the context of regional governance agreements resulting from comprehensive land claim settlements such as the Innuvialuit Final Agreement, 1984 (IFA), Nunavut Land Claims Agreement, 1983 and James Bay and Northern Quebec Agreement, 1975. These are modern treaties that provide for a wide range of power devolution by government bodies and there is constitutional recognition and protection provided by the repatriated Constitution Act, 1982. Co-management under these agreements can be with the federal or provincial governments and may take a variety of forms and levels of power sharing for land use planning, sustainable development, environmental impact assessment, protected area management and integrated resource management for wildlife, fisheries, water and forests.

The frameworks for Canadian co-management also require a consideration of self-government negotiations associated with some Regional Agreements such as the Nunavut Land Claims Agreement (1993) and Nisga’a Agreement (2000). Co-management needs to be seen as part of the long-term strategy for self- determination, which is finally gaining legal and political recognition in Canada.

Other forms of co-management in Canada have related to a narrow range of issues often associated with crisis management. A significant example is the Beverly-Quaminirjuaq Caribou Management Board (BQCMB) which was created to help manage two caribou herds whose migratory routes straddle two territorial and two provincial jurisdictions as well as four different native cultures (NWT, Nunavut, Manitoba, Saskatchewan, Dene, Inuit, Cree, Metis). The BQCMB arose out of the perceived crisis in caribou population. The government chose to work with the Aboriginal groups rather than increase enforcement on hunting licences. The government focus was on wildlife management and did not involve significant power sharing with Indigenous Nations.

Another crisis driven response led to the creation of the Gwaii Haanas National Park by the federal government, with consent by British Columbia, after it accepted a Haida comprehensive claim in 1983. At that time there were no interim measures to protect Haida land during negotiations. The Haida reserved their rights to self-government and the agreement states the divergent positions of the federal government on the ownership of the land. Subject to these

reservations a management agreement was concluded. This will be used as an example of Canadian co-management outside the comprehensive claims process.

It is not possible to do a exhaustive comparative study of these examples of co-management in Canada and Australia. However, emphasis is given to the nature of the power sharing relationships and the degree to which they support and practically implement the international and national legal standards relating to the human and environmental rights and specific Indigenous rights of the Canadian and Australian Indigenous Peoples. To date, much of the literature has focused on national and state conservation objectives and outcomes, rather than the recognition of Indigenous rights through co-management. This participatory approach may extend the normal citizenship rights of Indigenous peoples and provide more direct access to power in the dominant society.²⁵ However, it is a long way from recognition of Indigenous comprehensive rights, including self- government. Even within the discourse of citizenship rights, Indigenous peoples need to be wary that co-management resources do not replace other services to which they would normally be entitled such as training, provision of roads and the usual resources for management of conservation areas and resources of provincial (State) or national concern.

1. The Concept Of Regional Governance Agreements

There is no pre-ordained form which a Regional Agreement should take. Rather, it is a means for Indigenous peoples to define their own solutions and obtain legal, administrative, and political recognition for such definitions through negotiation with government(s). A possible working definition might be that:

A Regional Agreement is a way to organise policies, politics, administration, and/or public services for or by an Indigenous people in a defined territory of land (or of land and sea).²⁶

The Canadian Comprehensive Regional Agreements are examples of wider sorts of Regional Agreements, which involve major efforts to implement land and sea rights, resource management, economic strategies and self-determination. Even where native title rights are recognised by the courts, as in Australia since the Mabo²⁷ case and in Canada since the Calder²⁸ case, it may not be possible to make such rights mean anything in practice without further expensive court actions

25. Usher, supra note 19, at 28.
26. ATSIC Regional Agreements Seminar (1995) Office of Public Affairs for the Strategic Planning and Policy Branch, ATSIC.
27. Mabo v State of Queensland [1992] HCA 23; (1992) 107 ALR 1.
28. Calder v The Queen (1973) 34 DLR (3rd) 149.

or without new laws and political and administrative structures. A Regional Agreement is a way to transform vague rights into a clear form of organisation and law so that Indigenous peoples have some real benefit from them. A person may have the right to food, but unless that person is able to hunt or buy or otherwise obtain food, an abstract right will not save them from starvation. Co- management regimes are often incorporated as part of the practical implementation strategies of regional governance agreements.

IV. CANADA

1. Overview Of Canadian Regional Agreements

At the heart of the Canadian agreements is the idea that they should be both regional and comprehensive. This means that the agreements are much more than a land tenure settlement for native land claims. It is Indigenous people’s unique relationship to the land and the sea that is the basis for their political and legal claims. The agreements are designed to provide a legal framework, procedures and rights for linking Indigenous self-determination with social justice, economic development and environmental protection over large regions.²⁹ They are not “one-off” packages, but are meant to establish an ongoing policy framework whereby Indigenous and non-Indigenous interests can co-operate and co-exist through bicultural institutions for land management and planning. The most recent agreement, the Nisga’a Final Agreement 2000, also embodies the legal recognition of the inherent right of self-government. The formal title for such Canadian agreements is “Comprehensive Land Claim Agreement” which tends to understate these wider aspects. They are often referred to as “Regional Agreements” or modern treaties.

The regional nature of the settlement is important to Indigenous peoples because proper environmental management and protection of environmental rights (for example, hunting and fishing rights) can only succeed where decision-making is organised over a sufficiently large area to enable the various ecological and social interactions to be dealt with adequately by the responsible agencies. Environment management is an essential component of the Regional Agreements strategy, not only because of the central role of land care in Indigenous cultures and Indigenous value systems, but also because Indigenous peoples cannot expect

29. The review of Regional Agreements by the Canadian Royal Commission on Indigenous Peoples, Vol. 2 is largely contained in the section titled “Restructuring the Relationship” and endorses negotiated agreements as a centrepiece of national indigenous policy. See Canadian Public Works and Government, For Seven Generations, The Report of the Royal Commission on Aboriginal Peoples (1997).

to determine their economic and social development without control over the forces which govern, and which can otherwise undermine, their natural resource base.

Canadian Regional Agreements (in themselves) have not always resulted in Indigenous peoples obtaining self-determination over their traditional territories. The Nisga’a Final Agreement 2000 is an exception to this. The Nunavut Self Government was recognised in legislation enacted at the same time as the Nunavut Comprehensive Land Claims Agreement (1993). The two processes were closely related. However, all of the Regional Agreements have provided a range of political, economic and social benefits that do give a significant degree of self- management and autonomy. For the Indigenous participants, the core objectives in pursuing Regional Agreements appear to have been to:

• define a new legal and political relationship between themselves and Canadian governments (the federal government and the relevant provincial governments);
• establish a clear framework concerning management (co-management), access to and use of land, seas and resources that accommodates the needs of Indigenous peoples and other interests;
• preserve and enhance the cultural and social well-being of Indigenous societies; and
• enable Indigenous societies to develop self-governing institutions and economic bases which will assist them to participate effectively in decisions which affect their interests.³⁰

Nevertheless, as Usher³¹ notes, there has been considerable diversity in the models and strategies pursued among claimants, ranging from self-determination and political autonomy, to participation as full citizens in established Canadian institutional processes.

To date, fourteen Regional Agreements have been finalised with several claims advanced to Agreements in Principle. The final agreements are:

• James Bay and Northern Quebec Agreement (1975);
• Northeastern Quebec Agreement (1978);
• Inuvialuit Final Agreement (1984);
• Yukon Umbrella Final Agreement (1990) (and Final Agreements with 7 Yukon First Nations);
• Gwich in Final Agreement (1992);

30. Nettheim, G., Meyers, G.D. & Craig. D., Indigenous Peoples and Governance Structures

(2002) ch 15 at 436–437.

31. Usher, supra note 19, at 87–88.

• Nunavut Land Claims Agreement (1993);
• Sahtu Dene and Metis Agreement (1994);
• Nisga’a Agreement (2000).

(a) Canadian Constitutional and Legal Framework

In 1973, the Canadian Supreme Court recognised the native title rights of the Indigenous peoples of Canada.³² They declared that native title existed at common law, irrespective of any formal recognition by the Canadian Government. It includes rights to fish, hunt and trap on traditional lands. These rights are collective, as they are based on communal occupation of the land, but also individual, as members of tribes have personal rights to harvesting resources.

Following this case, the Canadian government developed a Comprehensive Claims Policy to negotiate comprehensive Regional Agreements. The initial ‘trigger’ for this negotiation of claims was the recognition of unextinguished native title (similar to the Australian situation after the Mabo³³ case). The James Bay and Northern Quebec Agreement (1975) and the Northeastern Quebec Agreement (1978) were finalised before the commencement of the new Canadian Constitution (the Constitution Act, 1982). These agreements were enacted under federal legislation.

The Constitution Act, 1982 provides a new legal framework for Canadian regional agreements (past, present and future):

35(1) The existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “Aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

Section 25 of the Canadian Charter of Rights and Freedoms (part of the Constitution Act, 1982) protects “Aboriginal, treaty and other rights” from being diminished by other guarantees in the Charter (for example, the prohibition against racial discrimination).

Section 52(1) of the Constitution Act, 1982 provides that any law that is inconsistent with a provision of the Constitution is, to the extent of the inconsistency, of no force or effect. This provision establishes the Constitution as the supreme law of the land. Changes to existing Indigenous rights requires the consent of the Indigenous peoples concerned or an amendment to the Constitution.

32. Calder v The Queen (1973) 34 DLR (3rd) 149.
33. Mabo v State of Queensland [1992] HCA 23; (1992) 107 ALR 1.

The Canadian government can enact legislation regulating the use of Indigenous rights (eg, requiring an Indigenous person to fish under licence) according to the Sparrow³⁴ case. Therefore, negotiated regional agreements which provide for the maintenance, rather than the extinguishment of native title rights, are constitutionally protected.

(b) Components of a Regional Agreement

The terms of these agreements generally are that the Indigenous claimants renounce all, or some of, their native title to the relevant territory, and in exchange receive:

• fee simple title to portions of land traditionally used and occupied (some areas are granted with fee simple title to mines and minerals and the right to work the mines and minerals);
• provisions for resource royalty and royalty sharing; rights to hunt, fish and trap wildlife over a larger area of surrounding land;
• rights to advise government authorities, or share in the making of decisions, regarding land use, fisheries, environmental management, wildlife conservation and the regulation of non-renewable resource development planning (management and co-management arrangements); and
• financial compensation for past, unauthorised use of this land and in consideration for land given up.³⁵

Some of the Regional Agreements currently being negotiated do not require the extinguishment of native title after extensive controversy on this issue. The Canadian Government is now prepared to negotiate this issue (unlike the early Regional Agreements) following the revision of the Comprehensive Claims Policy in 1987.

(c) Structure for negotiating claims

The Canadian Regional Agreements are negotiated under the Canadian federal government’s Comprehensive Claims Policy. The key steps are outlined below:

• Claimant group prepare a statement of claim and provide evidential documentation;

34. Regina v Sparrow (1990) 70 DLR 385.
35. Nettheim et al, supra note 30 at 437.

• Office of Native Claims (ONC) accepts or rejects a claim, depending on whether they consider it is historically and legally well-founded;
• If the claim is accepted, a Framework Agreement defines the scope of negotiations, timetables and procedural issues;
• Negotiation of an Agreement-in-Principle which must be endorsed by federal Cabinet and the claimant’s constituency;
• Negotiation of a Final Agreement which must be ratified by respective parties;
• Preparation of implementation plans and agreement which allocates responsible agencies and organisations, identifies responsibilities, prepares timetables and budgets;
• Enactment of federal agreement legislation to give effect to agreement (becomes constitutionally protected under the Constitution Act 1982.

It should be noted that the terminology of “Final Agreement” is misleading in the Canadian context. The agreements can be amended by a procedure defined in each agreement and each “Final Agreement” establishes on-going development and management processes that often lead to further issues being negotiated. In this sense they are “living” treaties. The key Final Agreements are discussed below.³⁶

2. The James Bay And Northern Quebec Agreement (1975)

The James Bay and Northern Quebec Agreement was the first modern day comprehensive land claims settlement reached between Indigenous groups and federal and provincial governments. The province of Quebec in the early 1970s decided to engage in the construction of large hydro-electric dams on some major river systems in the north. The Cree and Inuit inhabitants of the region, upon hearing of the development, launched both a media campaign and legal action to stop the hydro-electric project to preserve their ancestral lands which they were still heavily reliant on for subsistence. Although the court proceedings were progressing favourably, an injunction was not secured to stop development so it was realized that by the time the Supreme Court of Canada heard the case, the dams would be completed. Therefore, the Cree, Inuit, Quebec government and

36. For a more detailed discussion, see Richardson, B., Craig, D. & Boer, B., Regional Agreements for Indigenous Lands and Cultures in Canada (1995) North Australia Research Unit Discussion Paper, Darwin, Australia; Richardson, B., Craig, D. & Boer, B., “Indigenous Peoples and Environmental Management: A Review of Canadian Regional Agreements and Their Potential Application to Australia — Part 1” (1994) 11 Environmental and Planning Law Journal 320– 343; Richardson, B., Craig, D. & Boer, B., “Indigenous Peoples and Environmental Management: A Review of Canadian Regional Agreements and Their Potential Application to Australia — Part 2,” (1994) 11 Environmental and Planning Law Journal 357–381.

Canadian government began a series of negotiations to reach an agreement on development in the region known as the James Bay Territory.

For the Cree and Inuit, the essential positions were:

• Maintain their subsistence economy;
• Ensure that adequate land be set aside for their communities;
• Modify the hydro-electric project to reduce its environmental impacts (direct and indirect);
• Ensure community control over the provision of social services, education services, policing services, administration of justice and economic development; and
• Secure substantial monetary compensation for the loss of land.

The Quebec government sought to:

• Preserve its sovereignty over the northern regions of the Province;
• Open this territory for controlled development;
• Extinguish any outstanding native rights;
• Maintain the economic integrity of the hydro-electric project; and
• Limit royalty payments to the Indigenous inhabitants.

The Canadian government was concerned that the resultant agreement would not set a precedent for in the settlement of other land claims issues with Indigenous groups elsewhere in Canada.

The James Bay Territory was divided into three distinct types of land — Category I, Category II and Category III lands. In Category I lands, the Crees and Inuit would have the greatest protection of rights and it would be areas including and surrounding their communities. Category II lands were in close proximity to Category I lands and would be exclusively held for the Cree and Inuit to exercise hunting, fishing, trapping, forestry or tourism development. The bulk of the ancestral land was given the title Category III lands, whereby the Quebec government would have rights to allow recreational hunting and fishing, forestry and mining activities and regulate development. To the Cree and Inuit, this was the land that for ten months of the year their families moved to and depended on for survival of not only their culture, but subsistence. The Cree and Inuit would be granted a form of usafructory rights but subject to other interests. The reasoning appeared to be that the majority of the territory had been leased out to forestry and mining companies long before the James Bay and Northern Quebec Agreement was in contemplation. There was unwillingness on the part of the provincial government to disturb the status quo.

The initial provisions of the Agreement state that “the James Bay Crees and the Inuit of Quebec hereby cede, release, surrender and convey all their Native

claims, rights, titles and interests, whatever they may be, in and to land in the Territory and in Quebec, and Quebec and Canada accept such surrender”. This is done in return for “Quebec, Canada, the James Bay Energy Corporation and the Quebec Hydro-Electric Commission, to the extent of their respective obligations as set forth herein, hereby give, grant, recognize and provide to the James Bay Crees and the Inuit of Quebec the rights, privileges and benefits specified herein, the whole in consideration for the cession, release, surrender and conveyance” mentioned above. The problem has been in the implementation of the Agreement, the whole was never delivered as evidenced in thirteen subsequent agreements since 1975 with the Quebec and Canadian Government and an estimated ongoing twenty-one court cases by the Crees over the failure of the governments to respect the provisions of the James Bay and Northern Quebec Agreement in determining development issues in the territory.

In February 2002, the Crees of Quebec and Government of Quebec reached a new agreement concerning future forestry, mining, hydro-electricity, economic and community development and settlement of a number of outstanding issues and litigation. The deal envisions the payment of 70 million dollars a year over the next fifty years for continued hydro-electric development in the James Bay Territory, the continuance of forestry activities and the facilitation of new mining activities — all are the backbone of the Quebec economy. The new agreement does not include the Canadian government or the Inuit interests. It is heralded as a co-management agreement in the sharing of natural resources and the language indicates the province has to try to act in the best interests of the Crees. However, it appears that the Crees have a limited consultative role.

(a) Proposed co-management of forestry resources under the 2002 Agreement between Government of Quebec and Crees of Quebec

The Quebec forestry regime will continue to apply to the territory under this agreement but it is intended to take into account the Cree traditional way of life (to a much greater extent), to integrate sustainable development and to allow participation (in the form of consultation) by the James Bay Crees in the various forestry operations, planning and management processes. The proposed new management units appear to take much greater account of groupings of Cree traplines, although the practical implementation in determination of management units could be very problematic given the criteria in the agreement.

The new management units will be determined jointly by the Cree-Quebec working team and sites of special interest to the Cree will have to be identified and mapped by the Cree, in cooperation with the Ministere des Ressources naturelles. In most cases, total area of the sites will not exceed one percent of a total area of a trapline included in a management unit. This is obviously an attempt

at multiple use, including forestry, while trying to maintain Cree subsistence, hunting and related activities. However, the safeguards for Cree interests are minimal.

The Cree-Quebec Forestry Board is intended to provide for longer term planning and management of forest activities. The Cree Regional Authority and Quebec shall each appoint five members to the Board. In addition, a chairperson shall be appointed for the Board by the Quebec Cabinet upon recommendation of the Ministre des Ressources naturelles. The Cree Regional Authority is consulted on the chairperson nomination and where agreement is not possible, after a specified further consultation and referral process, Ministre des Ressources naturelles may submit a name to the Quebec Cabinet for appointment without Cree consultation. The Board is given broad participatory powers but their role is to advise the Ministre. At the community level, joint working groups are proposed and their role is also advisory.

Funding for Cree participation in the joint working groups and the Board has to be provided by Cree themselves. The Quebec government will make available an annual volume of 350,000 cubic meters of timber volume, within the limits of the commercial forest situated in the territory, to the Cree enterprises.

This proposal seems to be primarily directed towards consultation and participation by the Cree rather than any clear power sharing usually associated with co-management. Another key objective, by the Quebec government, is to require that the Cree bring to an end all pending litigation against them. The parties agree to maintain their respective legal positions regarding the JBNQA and its interpretation and their powers and rights. However, the history of poor cooperation and lack of implementation by the Quebec government does not paint an optimistic picture for the future of this agreement. This will be particularly the case if the Cree remove litigation as a compliance measure.

3. The Inuvialuit Final Agreement (1984)

The Inuvialuit Final Agreement (1984) has been operating for 16 years. This agreement was negotiated over a much shorter time frame than the later regional agreements. However, agreement provisions were discussed with every household in the region on several occasions before it was enacted by the Canadian parliament. The agreement has proved to be flexible and a good basis for ongoing negotiations and evolving management arrangements (for example, the Inuvialuit are currently negotiating self-government for the western Arctic of Canada and have extended their management of parks, wildlife and natural resources). The Inuvialuit received compensation of $C152 million (payments between 1984 to 1987) and one-off economic and social grants of $C17.5 million. The mandate from the Inuvialuit community and elders, was that the capital of $170 million

should remain intact. The funds have grown to over $C230 million through the investments of the corporations (including the Aboriginal Global Investment Corporation). The Inuvialuit has been aggressive in their investment strategies to preserve and increase their capital.³⁷

The Agreement provided for a number of corporate structures to administer and manage the Settlement funds, lands and other benefits. The Inuvialuit Regional Corporation, composed of representatives of the six Inuvialuit Community Corporations, functions as an umbrella organisation of the Inuvialuit to receive initially the Settlement funds and lands and to coordinate Inuvialuit implementation efforts. An Inuvialuit Land Corporation administers the Settlement lands. The Inuvialuit Development Corporation and the Inuvialuit Investment Corporation carry out the business on behalf of the Inuvialuit and invest Settlement funds on behalf of the beneficiaries. The Final Agreement does not provide for regional self-government as desired by the Inuvialuit. However, the Inuvialuit continue to press for a form of regional government for their Western Arctic homeland, as they believe that the wording of the Final Agreement facilitates this option. Clause 4 (3) provides that where re-structuring of the public institutions of the Western Arctic region occurs, the Inuvialuit shall not be treated less favourably than any other native peoples with respect to government powers and authority.

(a) Inuvialuit co-management regimes

The IFA establishes a number of institutions to deal with the various components of environmental management, including fisheries, wildlife harvesting and environmental impact controls.³⁸ These structures are all managed by approximately equal numbers of government and Inuvialuit representatives, except in a few specified cases. A very complex and intricate wildlife system is established under the IFA. The Inuvialuit possess exclusive and preferential harvesting rights to game except for certain migratory species. Compensation is to be provided to Inuvialuit hunters from developers for actual losses that occur as a result of any development undertaken in the Settlement Region (cl 13). At the local level six

37. Carpenter, L., “Regional Agreements: the Inuvialuit Experience in Canada” Conference paper in Ecopolitics IX Conference Papers and Resolutions, Northern Territory University, Darwin, 1–3 September, 1995.
38. See Smith, D., Co-Management Regimes: An Approach to the Sustainable Development of Natural Resources in the Arctic, Inuvialuit Game Council, Inuvik, NWT. See also Staples, L., Background report prepared for the Canadian Royal Commission on Aboriginal Peoples, Land, Resource and Environment Regimes Project (1996); Tatlock, M., The Negotiation of Environmental Assessment Regimes Pursuant to Comprehensive Land Claims in British Columbia (1994) Policy and Regulatory Affairs, Federal Environmental Assessment Review Office, Hull, Quebec; Usher, supra note 19.

exclusively Inuvialuit Hunters and Trappers Committees (HTCs) provide representation to each of the communities in wildlife management. The HTCs encourage and promote Inuvialuit involvement in sustainable wildlife utilisation and are collectively represented on the Inuvialuit Game Council (IGC).

The IGC has responsibility for allocating quotas for the harvesting of wildlife among the Inuvialuit communities, as well as advising the two Wildlife Management Advisory Councils (one each for the Northwest Territories and the Yukon North Slope). These two authorities in turn advise the appropriate Minister on wildlife conservation matters. A Fisheries Joint Management Committee (FJMC) advises the Minister of Fisheries and Oceans on matters relating to fisheries and marine mammals in the Settlement Region. Finally a Research Advisory Council, with multi-party representation, coordinates research activities into wildlife and environmental management in the Settlement Region.

Despite the scope for local participation in wildlife and fisheries management, the IFA does not decentralise wildlife harvesting rights to Inuvialuit communities. The power to regulate, allocate and control public access and Inuvialuit participation in management rests with the Wildlife Management Advisory Councils and Fisheries Joint Management Committee. The Local Hunters and Trappers Committees and Game Council are left with the power to enforce and provide harvest data.

The IFA also establishes a comprehensive system of regional environmental planning and development control. The Agreement provides for an environmental impact assessment process through two agencies in which the Inuvialuit have rights to participate. It is stipulated that for “every development of consequence to the Invuialuit Settlement Region that is likely to cause a negative environmental impact” (cl 11), the development proponent must prepare an environmental impact statement for the assessment by an Environmental Impact Screening Committee (EISC) as to whether it “could have a significant negative impact on present and future wildlife harvesting” (cl 11). An Environmental Review Board (EIRB) undertakes the review of major development proposals referred to it by EISC. The Board makes advisory recommendations to the government body on whether or not the development in question should proceed, including any mitigative measures that it feels should be applied to a project to minimise its environmental impacts. The EISC and the EIRB both have seven members, divided among three Inuvialuit and three government representatives and a chairperson chosen by the Federal government with Inuvialuit approval.

Several major co-management planning initiatives have been completed to date. These are:

• the Mackenzie Delta, Beaufort Sea Regional Land Use Plan (1990) developed in conjunction with the Gwich’in of the Northern Mackenzie River Basin;
• the Inuvialuit Renewable Resource Conservation Management Plan;

• six community Conservation Plans, which further identify other areas in their jurisdictions that deserve some level of protection (eg, National Wildlife or Wilderness areas, cultural sites); and
• identify specific resource conservation measures and, to some degree, provide the basis for formal land use decision making and cumulative effects management.³⁹

(b) Inuvialuit international co-management

The Inuvialuit have also recognised the importance of the international co-operative approaches to environmental management. In 1988, the Polar Bear Management Agreement for the South Polar Sea was signed by the Inuvialuit game council and the (Alaska) Inupiat North Slope Borough Fish and Game Management Committee. This was the first time that a wildlife management agreement had been concluded by Aboriginal user groups in two countries.⁴⁰ An agreement modelled on this has been negotiated by the United States and the Russian Federation. A similar international agreement for the shared management of beluga whales, between the Inupiat and the Inuvialuit has also been negotiated resulting in a Beluga Whale Management Plan for the Region.⁴¹ The Inuvialuit were also in substantial advocacy work in southern Canada and the United States in the lead up to negotiations of the amendments to the Bonn Convention (Convention of the Conservation of Migratory Species of Wild Animals, 1979).⁴²

(c) Evaluation of Inuvialuit co-management regimes

The Inuvialuit land, resource and environmental regimes were reviewed by Usher in his researcher report for the Canadian Royal Commission on Aboriginal Peoples.⁴³ This was part of a wider review comparing negotiated regional agreements with each other, and other treaty experiences. He concluded that:

• The land base — The Inuvialuit obtained a significant quantum as a proportion of their traditional territory (30%). More than any other modern treaty, the Inuvialuit lands were selected in very large, contiguous blocks which enabled more efficient planning and land use. The regional agreement has given the Inuvialuit significant control over the nature and impact of development.

39. Smith, supra note 38.
40. Smith, supra note 38.
41. Smith, supra note 38.
42. Usher, supra note 19.
43. Usher, supra note 19.

• Harvesting rights — Exclusive or preferential harvesting rights were obtained for most species throughout the region. Both subsistence and commercial harvesting rights are protected as required by the IFA. Protection of harvesting rights exceed those provided by the Sparrow⁴⁴ and are enhanced by the fact that they are implemented by co-management rather than imposed unilaterally by government.
• Co-management rights — There has been a common recognition that there is a high standard of data and information required to operationalise the management regimes under the IFA. In fact, research and information is far superior to other areas, and is mandated by the claim. This research is under significant control of the co-management bodies and effectively of the Game Council. There is significant Inuvialuit participation in research, including traditional knowledge and perspectives, and they have had a strong, if not indeed controlling influence, on the priorities and conduct of wildlife related research. There has been a high degree of Inuvialuit integration and participation in the co-management bodies, which is attributable to universal fluency in English, cultural comfort in working with non-Inuvialuit, trust in technical resource staff and the chairs of the co-management bodies, and confidence in the strength of the IFA’s provisions in protecting the Inuvialuit interest in land and resources. The cost of co-management is about $C5 million per year. There have been disputes between the government of NWT and DIAND (1995) over the legal responsibility for Inuvialuit participation costs. The securing of adequate future funding in this area is absolutely necessary to the continuation of the success of co-management.
• Environmental Protection — The Inuvialuit have effectively participated in wildlife management policy through international agreements. The level of wildlife management on research has improved dramatically in the region. Stocks of fish, wildlife and marine mammals are at least as abundant and as healthy as when the agreement was signed, and there is also a greater certainty about the status of these stocks for management purposes. There is a high degree of compliance with fisheries and wildlife legislation. Enforcement requirements are minimal, and the HTCs have taken on a greater responsibility for compliance among their own members.
• Environmental Assessment — The environmental screening committee and review board include the marine as well as the land areas of the IFA region as part of their mandate. This is important because much of the oil and gas exploration is offshore. The review board has made two significant decisions, which, although not well liked by some government agencies, have been allowed to stand.

44. Regina v Sparrow (1990) 70 DLR 385.

• Implementation of the IFA — There have been significant problems associated with the failure by Canada and the government of the NWT, to enact consequential and implementing legislation and a formal implementation plan. The formal implementation plan has been a crucial feature of later regional agreements such as Nunavut.

4. The Nunavut Final Agreement (1993)

The Nunavut Agreement is a land claim agreement as defined in section 35 of Canada’s Constitution. It forms a modern treaty between the Inuit of the Nunavut Settlement Area, who were represented in negotiations by the Tungavik Federation of Nunavut (4N), and the Crown in Right of Canada — the federal government. Inuit rights and benefits, which are “guaranteed” under Canada’s constitution, include:

• title to approximately 350,000 square kilometres of land of which approximately 36,000 square kilometres will include mineral rights;
• the right to harvest wildlife on lands and waters throughout the Nunavut Settlement Area;
• a guarantee of the establishment of three National Parks in the Nunavut Settlement Area;
• equal membership with the Canadian government on new institutions of public government (established through the agreement) to manage the land, water, offshore and wildlife of the Nunavut Settlement Area, and to assess and evaluate the impact of development projects on the environment. These public institutions include the Nunavut Wildlife Management Board (NWMB), the Nunavut Water Board (NWB), the Nunavut Impact Review Board (NIRB) and the Nunavut Planning Commission (NPC);
• capital transfer payments of $1.148 billion, payable to Inuit over 14 years ($580 million in 1989 dollars with interest);
• a share of royalties that government receives from oil, gas, and mineral development on Crown lands;
• where Inuit own surface title to the land, the right to negotiate with industry for economic and social benefits from non-renewable resource development;
• measures to increase Inuit employment within government in the Nunavut Settlement Area, and increased access to government contracts; and
• $13 million for a Training Trust Fund.

As well, the agreement commited the federal government to introduce legislation to create the Nunavut Territory and the Nunavut Territorial Government. This is discussed, below, in the section dealing with self-government.

5. Yukon Umbrella Final Agreement (1993) — Yukon First Nations

The Yukon Umbrella Final Agreement (1993) involved another form of negotiation process and comprehensive regime. The Yukon Umbrella Agreement involved many First Nation Indigenous peoples. The areas of land claimed were often separated by land and resources owned by the Crown or non-Indigenous interests. This agreement will be described in detail as this situation has significant similarities to many regions in Australia.

The Yukon settlement was the first to reflect the federal government’s policy in 1986 of restricting the degree of surrender of Indigenous rights. The negotiation of a comprehensive claims agreement for the Yukon Territory was an extremely protracted affair, taking about 17 years. A Final Agreement was signed in March 1990, comprising 28 sub-agreements on various aspects of land management, non-renewable resources and implementation measures. The agreement is to be ratified by each Yukon First Nation. Other elements in this Regional Agreement package are a Self-government Agreement and Financial Transfer Agreement, which provide the basis for negotiating individual self-government settlements with each of the 14 Yukon First Nations.

The date, final agreements have been negotiated with the seven Yukon First Nations (YFNs) (approximately 4,000 beneficiaries) with settlement land of 27, 299 square kilometres and financial benefits of $137, 468, 620 to be paid in 15 annual instalments. This is their share of the total benefit lands and settlement for the YFNs referred to earlier in the discussion of the YFN Umbrella Agreement. An eighth YFN, White River First Nation, signed its agreements in 1999 and is in the process of ratification.

6. Nisga’a Agreement (British Columbia)

The Nisga’a Tribal council submitted a land claim to the Federal government in 1976 claiming title to 14,760 square kilometres of the Nass River valley. In 1991, the British Columbia government was included in the negotiations and a Nisga’a Comprehensive Land Claims Agreement was reached, setting the boundaries for making an agreement-in-principle and final agreement. This agreement was not negotiated under the British Columbia Treaty Commission Process and was concluded under the Federal Comprehensive Claims Policy. In 1991, Canada, BC and the Nisga’a Nation signed a framework agreement. The parties conducted over 500 consultation meetings and public events during the negotiations. The parties signed the final agreement in August 1998. The Agreement calls for a payment to the Nisga’a of $190 million in cash and the establishment of a Nisga’a Central Government with ownership of and self-government over approximately 2,000 square kilometres of land in the Nass River Valley. The agreement also

outlines the Nisga’a ownership of surface and subsurface resources on Nisga’a lands and spells out entitlements to Nass River salmon stocks and wildlife harvests. The Nisga’a voted in support of ratification of the Nisga’a Final Agreement on November 6 and 7, 1998. The Nisga’a Final Agreement Act, was introduced in the British Columbia Legislature on November 30, 1998 and received final Royal Assent on April 26, 1999. Federal ratifying legislation received Royal Assent in April 2000.

7. British Columbia Treaty Process

One of the most important land claims was that of the Nisga’a First Nation. Some of the largest and most difficult land claims occur in British Columbia. Claims negotiations have been difficult because of hostility from the Provincial (State) Government, and the forestry and fishery companies. Some Indian First Nations, such as the Gitksan and Wet’suwetten have litigated their claims.⁴⁵ The Haida Nation is considering a Native Title claim, through the courts, to their island of Haida Gwaii following considerable frustration with the British Columbia negotiation process.

In British Columbia (BC), the majority of first nations never signed treaties and Colonial governments resisted treaty making. In 1992, the Government of Canada, the Province of British Columbia and the First Nations Summit signed the British Columbia Treaty Agreement (BCTC). The BCTC was established on an interim basis in 1993 and the Federal Government introduced the BCTC Legislation, in 1995.The BCTC consists of five Commissioners: two nominated by the First Nations Summit; one nominated by each of the federal and provincial governments; and a Chief Commissioner chosen by all three Principals. The current Chief Commissioner is Mr Miles Richardson of the Haida Nation.

The BCTC is the “Keeper of the Process”. Its main functions are to assist the readiness of parties to begin negotiations, allocate negotiation funding to Aboriginal groups, assist parties to obtain dispute resolution services at the request of all parties, and monitor and report on the status of negotiations. The BCTC has also played a useful role in reporting to the Principals on the impediments to the process. The treaty negotiation process is open to all BC First Nations.

Fifty-three First Nations (127 Indian bands), representing over 70 percent of BC’s Aboriginal population, are negotiating treaties. Of these, four are in early stages of negotiations, four are negotiating a framework agreement, and 43 are negotiating an Agreement in Principle (AIP). To date, 45 First Nations have signed framework agreements. Claims in British Columbia represent slightly more

45. See Delgmuuku v British Columbia (1991) 70 DLR (4th) 185.

than half of the total number of claims (both comprehensive and self-government) currently being negotiated across the country.

The recent experience in British Columbia has been disappointing after initial hopeful signs that this would be expedited and fair proceedings. Many of the offers made by government, as the basis of final agreements, have been considered too low by Indigenous negotiators.⁴⁶ This has undermined the role of the BCTC and some First Nations are withdrawing or considering withdrawal from the process. Unless urgent steps are taken to conclude some viable final agreements and action taken on interim measures supported by the majority of First Nations, this problem is likely to continue.⁴⁷

8. Interim Measures

(a) Canadian Government initiatives in New Foundland and Labrador

In November 1999, the government of Canada, New Foundland, Labrador and Innu signed an Agreement-in-Principle on Interim Measures as a means to provide the Innu with the appropriate tools to address the various issues currently affecting their communities. The Agreement represents a series of interim steps providing the Innu with additional control over programs and services within their communities until the completion of land claims and self-government agreements. It provides for the transfer of provincial Crown lands to Canada, the establishment of Aboriginal policing, costs and eventual transfer of control over education and the establishment of appropriate governance arrangements for the Innu.

Since the signing of the Agreement-In-Principle, an interdepartmental working group has been established with officials from DIAND (headquarters and Atlantic Region), Solicitor General of Canada, Public Works and Government Services Canada and Natural Resources Canada to develop and review options for implementing the various components of the Agreement.

Tripartite discussions are being held in relation to education and governance. Canada has proposed approaches to the other Parties for implementing these two major components. To date, no agreement has been reached on an approach that is acceptable to all Parties.

46. “First Nations Reject Initial Offers”, British Columbia Treaty Commission Newsletters (Feb 2000), <http://www.bctreaty.net/updates/feb00reject.html> (visited Feb 22, 2002).
    47. “Progress Being Made in Treaty Process”, British Columbia Treaty Commission Newsletters

(Oct. 2000), <http://www.bctreaty.net/updates/oct00progress.html> (visited Feb 22, 2002).