Strengthening indigenous peoples' influence:
Claims boards in Northern Canada

By Graham White, earlier published in "Indigenous Affairs" No. 4/2004, IWGIA 

In the struggle to protect and promote the interests of indigenous peoples, it is crucial to  develop political institutions assuring them voice and influence. This article examines a set of recently created institutions designed to do just that – the co-management and regulatory boards established under Canada ’s ‘comprehensive land claims’. These boards formalize indigenous peoples’ participation in government decision-making; they also attempt to incorporate indigenous approaches and culture into their operations. Though rooted in specific Canadian circumstances, these boards hold lessons applicable beyond Canada ’s borders.

This article draws on the author’s ongoing research into claims boards in Canada ’s three northern territories Nunavut , the Northwest Territories and the Yukon . Similar institutions established under comprehensive claims settled in the provinces of Quebec and British Columbia are not included in this analysis.

Canada ’s ‘Comprehensive Claims’

Since the mid-1970s, the Canadian government has been negotiating and slowly settling a series of ‘comprehensive land claims’ with its indigenous peoples. These land claims are nothing less than – and are officially described by government as – ‘modern-day treaties’. Comprehensive claims cover parts of Canada where indigenous peoples never signed treaties with the Canadian government (or, in colonial times, with the British government) or, less often, where the fulfilment of existing treaties has been fundamentally flawed.

Once ratified by vote of the indigenous peoples and by passage of confirming legislation in the Canadian Parliament and in the appropriate provincial or territorial legislature, comprehensive claims become entrenched in the Canadian Constitution. This gives them a strong legal status, including priority over routine government legislation and policy, though indigenous groups often complain that governments frequently ignore the special authority that settled claims carry.

All of the settled comprehensive claims cover lands on or close to the northern periphery of Canada ; most are situated within one of the three northern territories . These regions are sparsely populated and indigenous peoples form at least a very large minority, if not an outright majority of the population. With one exception, the comprehensive claims encompass vast swathes of territory; the Nunavut Land Claims Agreement (1993), perhaps the best known of the claims, covers over two million square kilometres in the Eastern Arctic.

Specific provisions vary a good deal but, broadly speaking, in all comprehensive claims the indigenous people relinquish ‘Aboriginal title’ to their lands in return for certain benefits. These include financial compensation, legal title to often substantial parcels of land within their traditional territory, government commitments to negotiate new political accommodations with the indigenous peoples, and a range of specific entitlements such as natural resource royalties and preferential hiring in government jobs. In addition, the claims establish a series of regulatory and co-management boards to involve indigenous peoples formally in various governmental functions relating to wildlife, natural resources and the environment.

Claims boards: mandates, structures, composition

These boards represent a compromise between, on the one hand, the desire of indigenous peoples to maximize their control over vital land and wildlife issues and, on the other hand, the insistence of government that the public interest in these issues across the vast areas covered by the claims required a ‘public government’ presence. Thus the boards are constituted as ‘institutions of public government’ (IPGs); this term is only explicitly used in Nunavut but it applies to all claims boards. While the wildlife, land and environmental issues over which the claims boards have jurisdiction carry profound social and cultural implications for Aboriginal peoples, there are no boards whose mandates extend more than marginally into more conventionally defined social and cultural policy such as education, health and social welfare.

Claims boards fall into four broad categories. One group deals with wildlife management; their activities include setting general policy as well as specific harvest levels for various species, directing wildlife research and supporting local hunters’ and trappers’ organizations. The Yukon Fish and Wildlife Management Board is an example. A second major set of boards is responsible for land use planning: such bodies as the Gwich’in Land Use Planning Board set the frameworks that govern economic development projects, location of transportation facilities and the like. A third group, which is involved in licensing projects that might disturb or damage the environment, has two subsets. One subset, illustrated by the Mackenzie Valley Land and Water Board, issues licences and permits to projects ranging from small gravel pits to oil and gas pipelines. The other subset conducts environmental impact assessments on proposed projects – usually the larger ones – as part of the licensing process; their work is closely related to, though nonetheless separate from, the boards that issue permits and licences. One example would be the Mackenzie Valley Environmental Impact Review Board. A final group, represented by the Nunavut Arbitration Board, serve as dispute resolution bodies for claims-related issues. This last group has thus far been of little significance; some have yet to have any cases referred to them.

Most boards have between 7 and 10 members; a few are somewhat larger. Save the under-utilized arbitration panels, the boards have permanent professional staff, some numbering only three or four, others a dozen or more working out of well-equipped offices. A number of boards make extensive use of modern communications technology, for example maintaining on-line registries containing the full-text of submissions and technical reports pertaining to projects under review.

The oldest boards, those established under the 1984 Inuvialuit Final Agreement, have been in operation for nearly twenty years. Most, however, are of more recent provenance, having been set up in the mid and late 1990s. Accordingly, they continue to evolve as do their relations with public governments and with indigenous peoples’ organizations.

In most cases board members are formally appointed by the federal – i.e. national – government but appointments are made only on the nomination of one of the three parties to the claim (the indigenous organization, the territorial government and the federal government). Only in the rarest cases will the federal government refuse to approve a nominee and then only in situations such as a candidate failing a security or criminal background check. Typically each party nominates one-third of the members, though on some boards half the members are nominees of the indigenous organization. Some board members nominated by government are also government employees, though on some boards this is prohibited. Indigenous organizations almost always put forward indigenous persons as their nominees; territorial governments frequently nominate indigenous persons as, on occasion, does the federal government. The net result is that, on many boards, indigenous members constitute a clear majority.

This strong numerical representation of Aboriginal people is unquestionably important but it is by no means equivalent to direct control by Aboriginal people or their organizations. The compromises underlying the boards’ creation are reflected in the nature of the boards’ decision-making processes, the constraints on their members and their relationship with the territorial and federal governments.

Claims boards’ influence and relations with government

Key to understanding the nature and role of the claims boards is the fundamental principle that they and their members are to act independently of the governments and organizations that nominated or appointed them. The legal frameworks establishing some boards explicitly state that members are to act “in the public interest” and not take direction from the parties that nominated them. Like judges, members are expected to use their best judgement and to reach decisions on the basis of the evidence before them. In this sense, the claims boards are not true ‘co-management’ bodies entailing negotiation and compromise between official representatives of various interests.

And yet this emphasis on the independence of boards and board members tells only part of the story. While they do not issue directions to ‘their’ members, governments and indigenous organizations take care to nominate board members whose views and approaches are known and agreeable. Moreover, it is clear that some board members do take cues from ‘their’ parties; this is the case both for government-nominated and indigenous-nominated board members. It would be a mistake to assume that the positions adopted in board deliberations by members who are government employees necessarily follow government policy but, at the same time, the constraints they face are very real.

Funding for claims boards – for large, active boards, several million dollars a year – comes almost entirely from the federal government (the territorial governments provide some funding but by and large this is redirected federal money). Does this mean that the ‘golden rule’ of politics holds sway: ‘He who has the gold rules’? Not at all. To be sure, disputes have arisen as to the adequacy of federal funding for the boards – a federal responsibility under the claims, which Aboriginal groups often complain is not properly fulfilled. Questions of the overall adequacy of funding aside, the federal government has not attempted to use its ‘power of the purse’ to influence individual board decisions or the general direction of board policy.

Nor, as indicated above, has it abused its ultimate power to appoint and remove board members. In a few instances the federal government has refused to reappoint board members it viewed as incompetent or under-performing; for the most part these actions have not occasioned serious objections from the parties that nominated the members. A notable recent episode saw the federal minister exercising his authority to remove an outspoken member of the Mackenzie Valley Environmental Review Board who had stood up against what he maintained were improper board activities and unwarranted government interference. This controversial action so far stands as an isolated occurrence, though concern remains in some circles that it represents an objectionable precedent presaging further heavy-handed federal intrusions into board activities.

Where the relationship between boards and government becomes most crucial is in the weight and influence of the decisions they reach. This question goes to the heart of the boards’ effectiveness. In a limited number of cases, boards possess the legal capacity to make final, binding decisions on permits, harvest quotas and the like. In most cases, however, and certainly in all matters with far-reaching implications, the boards have only advisory powers. They make recommendations to government, which need not take heed of the boards’ advice. Put this way, the boards appear to wield little real clout, since governments seem completely free to ignore their recommendations. Again, though, appearances are deceiving; the reality is quite different.

To some extent, the government’s frequent acceptance of board recommendations reflects the quality of the boards’ work as well as good faith on governments’ part. Rather less noble political considerations are also at play, to the boards’ great advantage. Most board recommendations, while formally only ‘advice’ to the responsible federal or territorial minister, take the form of what might be termed a ‘negative option’. Boards forward recommendations to government about granting or withholding approval of gas wells, roads, water usage, harvest quotas or about placing specific conditions on their approval. Typically – specifics vary a good deal – the responsible minister has a limited time, most often 60 or 90 days to formally reject or, in some cases, amend the recommendation. If the minister does not take the initiative in this way the recommendation automatically takes effect. Thus, boards do not have to devote time, energy and political capital attempting to convince government to adopt their decisions. Rather, the onus is on governments to expend their political capital overturning board decisions (and, in most instances, to provide written reasons) within a very short period. Not surprisingly then, very few board decisions have been rejected or substantially amended by government. Doubtless governments have been comfortable with many board recommendations and would have accepted them on their merits, ‘negative option’ or not. At the same time, boards have also come forward with recommendations that governments would  have preferred to ignore or overturn but which were allowed to stand.

A good example of this process at work – and an indication of the significance of board decisions for indigenous peoples – was the 1995 recommendation of the Nunavut Wildlife Management Board that Inuit be permitted to harvest one bowhead whale. The federal government, which issues permits for such hunts, had not approved a bowhead hunt for nearly two decades and the board’s recommendation proved highly controversial, generating substantial international pressure on the Canadian government to withhold approval. In the end the government accepted the board’s recommendation and the hunt went ahead. With the board’s approval, and the federal government’s acceptance, subsequent bowhead hunts have taken place in the waters of Nunavut .

In short, governments can and do reject board decisions, but only rarely. Otherwise put, claims boards wield real power. Without their approval, major development projects such as pipelines or mines are unlikely to go ahead. Where wildlife is concerned, to all intents and purposes, the wildlife management boards have the final say on most issues that come before them.

Incorporating indigenous norms and approaches into claims boards

Claims boards are by no means all-powerful but they unquestionably wield substantial authority and, in so doing, significantly enhance indigenous influence over vital land, wildlife and resource questions. Yet how decisions are made can often be as important as the decisions themselves. Thus for claims boards, the capacity to incorporate indigenous approaches and modes of thought into their methods and procedures is critical. Decisions made following Western, ‘Euro-Canadian’ norms and traditions lack legitimacy for many indigenous peoples and are arguably less likely to take their concerns fully into consideration. How then do claims boards stack up in terms of bringing indigenous governance approaches to bear?

This is a difficult question to answer, not least because it is no simple matter specifying just how indigenous norms and approaches might be incorporated into formally constituted boards rooted in Western notions of hierarchical, rules-based, neutral administration. Two sets of criteria suggest themselves: first, the extent to which boards’ operations follow rigid, legalistic, frequently adversarial procedures quite foreign and alienating to indigenous people; second, the capacity of boards to infuse ‘traditional knowledge’ into their decision-making processes.

On the first point, the wildlife boards operate fairly informally. When they hold public consultations, hunters, elders and anyone else who wishes to speak can have their say in informal settings where few restrictions inhibit them. In sharp contrast, the licensing and environmental assessment boards are subject to enormously complex legal requirements, often entailing highly adversarial, technical processes, carried out in formal hearings attended by battalions of lawyers, consultants and other ‘experts’ – baffling and intimidating to anyone, let alone an Aboriginal hunter or elder with little formal education and perhaps a limited facility in English, the language in which boards operate.

Northern Canadian Aboriginal culture prizes and unquestioningly accepts the wisdom of elders, whereas the canons of Euro-Canadian administrative law emphasize adversarial, evidence-testing processes. This takes the form of often confrontational challenges to the testimony of persons appearing before a board, be they consultant, government official or revered elder. In quite fundamental ways, some of the most powerful claims boards – whether or not their membership is predominantly indigenous – go about their business in ways antithetical, if not offensive, to many indigenous peoples’ notions of how deliberations should unfold and decisions should be made. Boards do attempt to make their processes and meetings as straightforward and non-threatening as possible but, given the legal frameworks that govern them, have only limited scope for dealing with this problem.

The second point asks whether boards pay serious attention to what has come to be called ‘traditional knowledge’ (TK). By its very nature, no concise definition of just what TK entails is possible – it includes indigenous peoples’ knowledge and understanding of the land, the animals and the environment together with the ways in which humans interact with them. Some elements of TK are straightforward and easily comprehended by non-indigenous people – familiarity with caribou migration routes or use of certain herbs in healing. Others, however, are more spiritual, rooted in indigenous peoples’ relationships with the land and the animals, and may be difficult to articulate in ways non-indigenous people understand. Moreover, for some indigenous people, sharing certain aspects of TK with outsiders is simply wrong.

The wildlife management boards make extensive efforts to incorporate TK into their activities. The work they do – setting harvest quotas based on estimates of animal populations, facilitating wildlife research, and so on – naturally inclines them towards using TK. Some critics maintain that such efforts do not make up for the strong Euro-Canadian orientation of the wildlife boards, symbolized by the very word “management”, a concept indigenous people of the Canadian north would never apply to wildlife. Within the confines of their mandates and legal frameworks, however, the wildlife boards generally have a good record of respecting and utilizing TK.

Other boards face significant barriers to incorporating TK into their processes. A fundamental incompatibility may exist between TK and the legal frameworks that dictate how boards operate. To be sure, the enabling legislation establishing some boards explicitly requires them to take into account aspects of TK. Particular boards have also shown real commitment to this issue: the Mackenzie Valley Environmental Impact Review Board, for example, held a multi-day workshop on incorporating TK into environmental assessment and related processes, with several dozen participants. Nonetheless, boards necessarily emphasize evidence and submissions received through written documents – documents often highly technical and imbued with the methods and biases of Western science. Moreover, the formal and adversarial character of board hearings is hardly conducive to TK approaches: an elder talking about the land and the animals at a board hearing may encounter not respectful acceptance of his wisdom but a challenge by an aggressive lawyer to ‘prove’ his words.

Conclusion: claims boards’ mixed record

Not surprisingly, the record of the claims boards reveals both successes and failures. Some boards have worked effectively, winning support among both governments and indigenous peoples and their organizations. Other boards have been dysfunctional or have generated controversy and conflict among those with whom they deal. Overall, though, the boards have unquestionably enhanced indigenous peoples’ influence over land and wildlife issues critical to them. This is true not only by virtue of the large numbers of indigenous people who serve on the boards but also in terms of the extensive and meaningful consultation the boards routinely conduct with indigenous communities and organizations. Decision-making on issues of great concern to indigenous peoples is far more transparent and consultative than it was prior to the boards’ creation. Indigenous peoples are by no means fully in control of such decisions but the boards clearly enhance their voice and their influence.