“Win-win” is not typically a term you hear tossed around when it comes to land and resource negotiations between Indigenous governments and the Crown.
The usual mandate-based talks, which see negotiators come to the table with strict limits on money, land quantum and other allowances, often result in years of deadlocks. See the many dormant tables across the country where First Nations have yet to surrender to the rigid terms of the federal government.
“The purpose of the existing process, if I was to be blunt, is to grind the Aboriginal party down until they accept Canada’s mandate as the only way forward… to surrender Indigenous rights and title in exchange for rights under the agreement,” said Larry Innes, an NWT-based lawyer with Aboriginal law firm Olthuis Kleer Townshend.
“It’s an approach that has roots in our colonial past and, frankly, doesn’t belong in a new world where reconciliation and the rights of Indigenous people are to be respected.”
But if First Nations and government negotiators are to be believed – and, really, when do they usually agree? – a single protected area in the Northwest Territories just may have changed all that for the NWT, and beyond.
The story begins with devolution. Prior to 2014, the GNWT had placed its work on protected areas on hold while finalizing the transfer of authority over lands, water and resources from the federal government; no one was sure what would happen once that transfer was made and public land became a territorial responsibility.
For the Lutsel K’e Dene First Nation (LKDFN), which had spent decades negotiating for the creation of a national park on the East Arm of Great Slave Lake, waiting to see what the GNWT would do with their hard work was not an option.
The First Nation decided to take the initiative and approach the GNWT with an entirely new way of finding agreement on the protected area known as Thaidene Nene, or “Land of the Ancestors.” It would be an approach based on shared interests, rather than adversarial mandates.
According to one of LKDFN’s negotiators, Steve Ellis, the “interest-based” approach meant both parties had to set aside the notion of mandates and work collaboratively to find a solution.
“Not having a mandate allowed us to be creative, innovative, colour outside the lines, and come up with solutions that we agreed to together at the negotiating table,” he said. “As opposed to people coming down with positions and just hammering each other or putting up walls, this was a free space to explore ideas, which was, number one, the most critical piece.”
But in order to get started, Ellis said there had to be a mutual recognition that both the GNWT and LKDFN were governments – sort of a “nation-to-nation” approach, a term now being frequently thrown around.
“A prerequisite to having conversations of that nature, to sitting down as partners rather than adversaries, was the acknowledgement that you’re dealing with legitimate governments on both sides of the table,” Ellis said. “If the position is that we are the government and we’re coming into the negotiations process to try to maximize our authority and diminish the other party’s authority, then that would not have provided the space for these conversations around Thaidene Nene.”
Block the bureaucracy
Michael Miltenberger, the outgoing minister of Environment and Natural Resources, said there was a shared sentiment among the two parties coming to the table: the way negotiations had been done for the past several decades was taking far too much time and resources.
“For us, when we looked at it, doing the same old thing post-devolution made no sense,” Miltenberger told EDGE. His department had already been taking an interest-based approach to negotiating transboundary water agreements with neighbouring provinces, and didn’t see why it couldn’t work for Thaidene Nene.
But before that could happen, Miltenberger recognized that government bureaucracy needed to be removed from the equation.
“For things that are political priority, like Thaidene Nene, you need to take it outside of the direct control of the negotiators and the bureaucracy,” he said. “The bureaucracy is not designed to be nimble and responsive and focused.”
With a direct line to key political leaders, including cabinet, the GNWT and LKDFN got consensus on a broad approach and got to work. They made huge strides that would usually have taken years within months.
“It worked even better than we thought it would,” Miltenberger said, so much so that the federal government actually became concerned about the fast pace of negotiations; three months in, they demanded to be apprised of what new terms the parties had agreed on.
Steven Nitah, former chief and lead negotiator for LKDFN, said it was the most successful negotiation he’s worked on to date.
“It moved a lot quicker. We moved issues forward a lot more expeditiously, a lot more economically, and there was reduced amount of conflict at the table,” he said. “I think my negotiations with the GNWT resulted in the least amount of grey hairs I’ve ever got from a negotiation, with the federal government and industry for that matter.”
A model for settling land claims?
Since the bulk of the negotiations on Thaidene Nene were successfully completed last summer, the “win-win” process has come to be referred to as the “Thaidene Nene approach,” and touted frequently in the lead-up to the last election as the NWT’s solution for finalizing unsettled land claims during the 18th Assembly.
But while the GNWT believes this signals a new way forward in working with First Nations, the elephant in the room remains: when it comes to comprehensive claims, the host at the head of the table continues to be Canada.
The comprehensive claims process is Canada’s default policy for negotiating the land and resource agreements more commonly known as land claims, and is the precursor for Indigenous governments being able to negotiate self-government deals.
Unlike other forms of land claims, like Treaty Land Entitlement, comprehensive claims force First Nations to surrender their title to the land in exchange for Canada’s offerings, earning them the occasional nickname “termination tables.” But comprehensive claims are also often referred to as “modern treaties,” meaning that First Nations aren’t confined to reserve lands, but rather benefit from economic activities throughout their entire settlement region.
While the Northwest Territories boasts some of the first finalized comprehensive claims in the country (for example, the Inuvialuit Regional Corp), it is also home to some of the most drawn-out negotiations over land and self-government yet to be settled.
The Dehcho Process is one set of negotiations that has been ongoing for over 20 years. The Akaitcho First Nations have also been waiting for decades, and the NWT Metis Nation is pinching pennies these days as talks and legal action have continually drawn down their reserves year after year.
Miltenberger estimates that $300 million has been spent among the three remaining claims over the last three years, to nobody’s benefit. He doesn’t want to see that “antiquated” system carried over into the next assembly.
“We inherited a federal process that is what led us to where we are now: gridlock, based on a zero-sum approach,” Miltenberger said. “What kind of process are we going to have in our 21st century, post-devolution? Are we going to sit at the table and tell our relatives and friends and neighbours that we have a process and we’re going to drive you into bankruptcy and beggar you? That’s contrary to the collaborative partner approach.”
Seizing the post-devolution day
With devolution finalized and courts establishing precedent around jurisdiction and title, Nitah believes land claim negotiations in the NWT can and should begin with interest-based discussions “right off the bat.” He said it’s up to the GNWT to lead the way, to enact legislation that recognizes Aboriginal and treaty rights specifically and to put forward a process that can be a model for the rest of the country.
“The GNWT can apply a more respectful approach to these discussions with Indigenous governments to advance tables more quickly,” Nitah said. “When Crown governments state that they want to deal in a way that’s nation-to-nation, they have to put some meat behind that.”
According to Innes, that would require changes to the federal claims policy: “It would require giving negotiators general direction instead of fixed mandates; it would require a willingness to examine at senior political levels, ‘Are we on the right track?’ And fundamentally, taking the ability to say ‘no’ away from mid-level bureaucrats and instead putting it in the political realm where it belongs.”
Innes, who sits at various land-claim negotiating tables in the North, said he expects there will be such changes made to the federal government’s approach to negotiations following the election of Justin Trudeau’s Liberals, who campaigned on a new relationship with Indigenous governments.
“They’re as frustrated with the process as anyone and this is a model that works,” Innes said of the Thaidene Nene approach.
The GNWT will have an opportunity to shape the new federal mandate moving forward, as new Indigenous and Northern Affairs Minister Carolyn Bennett looks to implement the UN Declaration of the Rights of Indigenous Peoples.
“I think that they should take full credit for the successes the territorial government has achieved with respect to Thaidene Nene and frame those as a model that Canada should be considering as Minister Bennett looks to implement her mandate,” Innes said. “It provides a real practical example of how Canada’s negotiating policies can be changed so as to work towards reconciliation instead of towards extinguishment. This is a success, and Canada can build on it.”
NWT setting priorities
As the recently-elected MLAs gather in the legislature this month to set their priorities for the 18th Assembly, Miltenberger – this time on the outside – expects this strengthened resolve to clean up outstanding negotiating tables will top the list.
“We want strong Aboriginal governments, we want strong economies, and industry doesn’t really care who they work with… as long as they know who the owners are and that there’s a consistent framework for development. Right now, things are frozen, and in an economic downturn, our future, I think, is now dependent on settling land claims,” he said.
Not only will having settled land claims create certainty for industry, but fast-tracked self-government deals will also set communities across the territory up for success, Miltenberger said.
While Deline was able to complete its community-based self-government agreement over the summer, Miltenberger said it shouldn’t take 20 years each for the remaining four Sahtu communities seeking their own similar deals.
“If we used the same kind of process we used for Thaidene Nene – compressed, very focused, politically driven, win-win – you could do it in two, three years, maybe,” he said.
“Twenty years is maybe lightspeed for bureaucracy, but that’s five political lifetimes, and this government’s going to say, I’m pretty sure, that they want to settle land claims within the life of this government. Clearly the system we have in place cannot do that.”