Let aboriginals own their land

Published Nov. 13, 2013, in the National Post

The Nisga’a in B.C. have long been trailblazers and pioneers. During the 1970s, it was their activism on the land and in the courts that led to the legal recognition of aboriginal title in Canada. In 1998, they were the first aboriginal group in B.C. to complete a comprehensive land claims agreement.

Last week, they again made history by creating the first individually-held fee simple interests on aboriginal lands. As a result, the Nisga’a citizens who receive these fee simple interests will have the same type of property rights that Canadians have off-reserve. That means they can sell or lease their land or bequeath it in a will to whomever they wish. They can also use their land to secure a loan or mortgage to build a house or start a business, thus generating much needed economic development and capital for their communities.

Some critics argue that fee simple property rights should be opposed because it could lead to the erosion of a community’s land base. But the Nisga’a initiative has several safeguards built into it.

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Ideas, Executive Federalism and Institutional Change: Explaining Territorial Inclusion in Canadian First Ministers’ Conferences

Author: Christopher Alcantara

Published online on March 2013 in Canadian Journal of Political Science.

Abstract: Official participation in Canadian First Ministers’ Conferences has long been exclusive to federal and provincial first ministers. In March 1992, however, the membership of this intergovernmental arena was expanded permanently to include territorial premiers. Using the tools of historical institutionalism and drawing upon relevant literature and eleven elite interviews with former first ministers and senior civil servants, this paper seeks to explain why this instance of incremental institutional change occurred. It finds that significant friction between the institutional and ideational layers of the Canadian federation during a period of mega-constitutional reform allowed federal, provincial and territorial actors to draw upon ideas about democracy and the political and constitutional maturation of the territorial North to expand permanently the membership of First Ministers’ Conferences.

“Ottawa to cede new powers to Northwest Territories.” What happened?

This was the headline of a news article on the front page of today’s Globe and Mail.

According to John Ibbitson, “The Harper government is on the brink of making the Northwest Territories a province in all but name by ceding federal control over land, resources and water. The people and government of the territory stand to benefit from hundreds of millions of dollars in new resource revenues under the agreement, which will see the territorial and not the federal government primarily responsible for approving resource developments.”

There’s been quite a bit of scholarly and punditry ink spilled on the topic of devolution in the Canadian territorial north.  Much of the scholarly literature has focused on assessing devolution normatively, arguing over which model of devolution would be most effective and just for the varied peoples that live in Canada’s three territories.
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My research, on the other hand, has tried to examine the issue of devolution from a social science perspective.  Rather than figuring out what would be a fair deal for all the parties involved, I published a paper earlier this year that tried to explain why the territories have achieved different outcomes in the negotiation process: Yukon (signing a final devolution transfer agreement in the early 2000s); NWT (No final deal yet, but an AIP last year), and Nunavut (no deal; no negotiations yet).  (I also published another article, co-authored with Kirk Cameron and Steven Kennedy, that empirically assesses the effect that devolution has had on Yukon.  You can download the ungated version of the article here).

Using a rational choice framework, I found three factors mattered.“This paper has argued that variation in devolution negotiation outcomes relating to lands and resources can be explained by examining three sets of factors. First, in light of the federal government’s dominant position in negotiations, territorial negotiators must negotiate an agreement that is compatible with federal preferences relating to resource revenues, equalisation, and the reduction of costs. Both the YTG and the Handley/Roland GNWT governments were willing to satisfy federal preferences in this manner. However, only the YTG has been able to complete a final agreement. The reason that YTG has been successful whereas the GNWT has not is because devolution negotiation outcomes also depend on the extent to which government officials perceive that sufficient aboriginal consent has been obtained. In Yukon, the fact that all of the Yukon first nations signed the UFA in 1993 and that a majority of aboriginal groups completed lands claims agreements at a fairly brisk rate were sufficient for federal and territorial negotiators to sign a DTA. In the NWT, in contrast, an AIP was negotiated only after the consent of four aboriginal groups was obtained in a 2007 resource revenue sharing agreement. However, the fact that two of the four groups have withdrawn their support means that the GNWT AIP is likely to be shelved or scrappedThe final factor that determines variation in devolution negotiation outcomes is federal perceptions of territorial capacity and maturity. The evidence suggests that the different timing of devolution in the NWT and Yukon was partly the result of the YTG being seen as more mature and politically developed than the GNWT. A more stark example is the status of Nunavut devolution negotiations, which have not proceeded beyond the negotiation of a protocol agreement. The evidence suggests that the lack of progress on the Nunavut file is mainly the result of federal reluctance to negotiate with a government that it believes does not have the capacity to undertake its current responsibilities and obligations, let alone those that would flow from a final devolution agreement.”

So what changed for the NWT? Originally, the Government of the NWT (GNWT) had achieved the support of 4 NWT Aboriginal groups, which was sufficient to move forward in the eyes of federal and territorial officials.  Two groups, however, backed out due to a change in leadership.  As a result, devolution negotiations stalled.

Recently, one of the group’s experienced yet another change in leadership and this leadership group was more willing to sign on.  A second group signed on, raising the total number of Aboriginal groups supporting the deal to four.  If the GNWT can keep this four groups on board, then it is highly likely that it will be able to complete a final devolution transfer agreement with Ottawa.

As I wrote in my Polar Record article:

“Anonymous territorial and aboriginal interviewees suggest that it is highly likely that future devolution negotiations in the NWT will only proceed if the GNWT can somehow convince at least two additional aboriginal groups to endorse the AIP.”

Prediction is a trickly business in the social sciences. It’s gratifying, though, when one’s predictions turn out to be right once in a while!


Devolution and Territorial Goverance

Does devolution produce positive outcomes for territorial governments and residents? I examine this question with a former graduate student, Steven Kennedy, and a former civil servant in the Yukon Territorial Government, Whitehorse city councillor Kirk Cameron.

This article is free to the public (open access) and can be found here. Below is the abstract.

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Despite a rich literature on the political and constitutional development of the Canadian territorial North, few scholars have examined the post-devolution environment in Yukon. This lacuna is surprising since devolution is frequently cited as being crucial to the well-being of Northerners, leading both the Government of Nunavut and the Government of the Northwest Territories to lobby the federal government to devolve lands and resources to them. This paper provides an updated historical account of devolution in Yukon and assesses its impact on the territory since 2003. Relying mainly on written sources and 16 interviews with Aboriginal, government, and industry officials in the territory, it highlights some broad effects of devolution and specifically analyzes the processes of obtaining permits for land use and mining. Our findings suggest that devolution has generally had a positive effect on the territory, and in particular has led to more efficient and responsive land use and mining permit processes.