When Rights Conflict: a Federal Approach to Supporting the Resolution of Overlapping Indigenous Land Claims

Research Theme: All/Project Lead

is a Honours Research Essay (4th year undergrad) by Katie Caprini of Carleton University, supervised by Dr. Stephanie Irlbacher-Fox, Principle Investigator of the Modern Treaties Implementation Research Project.   

---------------------------------------------------------

Indigenous peoples in North America have a long history of treaty-making, spanning back centuries prior to European contact. Today, conflict often results when a state attempts to define legal rights in an area where multiple Indigenous peoples reside or exercise their rights. This can be clearly seen in the federal government’s practice of negotiating comprehensive land claims agreements with multiple Indigenous peoples in a geographically shared area. This Honours Research Essay (HRE) examines the causes and implications of overlapping claims and shared territories to answer the following research question: how can the Government of Canada improve its approach to negotiating land claims in shared territories?

To answer this research question, this HRE conducts a literature review which analyzes publicly available information relating to overlaps found in scholarly articles, books, court decisions, reports, websites, dissertations, conference papers, and statements from Indigenous and government officials. This literature is compared between three distinct time periods: after the release of the first federal land claims policy (1973-1985), after the first major update to the federal land claims policy (1986-2014), and after the release of the interim policy under which land claims continue to be negotiated today (2014-present). This method of analysis makes it possible to understand how perceptions and attitudes towards overlaps have shifted throughout time, and whether government policy has evolved in response. In addition to the literature review, a case analysis of Sambaa K’e Dene Band v. Duncan (2012) is also conducted in this HRE. The conflict in this case relates to Crown consultations in shared territories. The outcome of this case provides important principles that may be used in the creation of a federal treaty-making policy relating to overlaps and shared territories.

Throughout this HRE, a “universal rights” framework is utilized which applies the principles of universal human rights to the context of Section 35 of the Constitution Act (1982). This allows Section 35 to act as the basis for approaching multiple valid but competing rights. In particular, this allows the adoption of a balancing approach to resolving conflict rights. This balancing approach is demonstrated through a Rights Based Overlap Model, designed for this HRE, which incorporates the principles affirmed in the preamble of the United Nations Declaration on the Rights of Indigenous Peoples (2007).

By applying a universal rights framework and the Rights Based Overlap Model to the literature review and the case study, this HRE highlights a number of key principles to consider moving forward. To conclude, a series of recommendations are provided to aid the federal government in developing an approach to treaty-making in situations involving Indigenous peoples with overlaps and shared territories.