Over the years, we’ve had a number of discussions at Stageleft about Aboriginal land claims and related issues. As we approach the National Day of Action, we can expect that things will once again begin to boil in the moronosphere. As a countermeasure, we thought this year we’d try to shed a bit of light on the background on some of the issues likely to come up on blogs over the next few weeks.

The biggest and most basic question is a simple one: What IS a Land Claim?

There’s a mistaken impression out there that a “Land Claim” represents some kind of payoff offered to native people by governments who feel guilty about having “taken away” native land in the past. That’s incorrect, and it’s an unfortunate misconception for several reasons. First of all, it makes guilt the basis of the relationship between Canada and Aboriginal people - not a healthy thing. And second, it implies that Aboriginal people have somehow “lost” their land, and have to be compensated for it.

Not quite.

A Land Claim Agreement is simply a modern day treaty that defines the relationship between two nations: one nation is Canada, and the other is one of the founding Aboriginal peoples.

When European settlers arrived in North America, they found the territory occupied by a number of independent nations, each with its own language, culture, political systems and linkages, military alliances, currencies, economies and patterns of trade. The North American trade network, in particular, was such a sophisticated network of trade routes, goods, and markets that it still astonishes researchers.

The arriving Europeans dealt with those nations differed from country to country. As you probably know, the Spanish and Portuguese who colonized much of southern and central America viewed the indigenous population largely as a source of souls for conversion and a cheap labour force. In the United States, the presence of Aboriginal people was viewed as a military issue. Short term military alliances gave way to a series of agreements intended to protect and provide legal title to the expanding newcomer population as they spread west, usually at the expense of existing native residents. The so-called US Indian “wars” were for the most part a series of military actions providing protection for settlers and developers invading Indian land.

In Canada, to our credit, we took a difference approach. We adopted the strategy of negotiating treaties instead – formal agreements between the government of the newcomers and the governments acknowledged by the Crown as already in place.

It was a much more Canadian approach than shooting people: but as you may have heard, these treaties didn’t always work out as planned. Land occupied by Aboriginal peoples was gradually taken over by European and other settlers, with or without treaties, for about four hundred years. In some cases lands promised in treaties were lost or taken over: in others the lands promised were never actually granted.

But international law has long recognized the right of a people to the land they occupy, including Aboriginal people. The requirements for establishing an Aboriginal title to the land change from country to country, but generally speaking, the Aboriginal claimant must establish exclusive Aboriginal occupation and long term land-use, and demonstrate that their occupation continues to the present day.

(In light of all that, there’s a certain piquance to the fact that many pundits who scoff at the notion of Land Claims are precisely the same folks who argue vociferously for the inclusion of property rights in the Charter.)

The Land Claims process is intended to address the need to recognize both Aboriginal title and current land use by formalizing a legal arrangement between two different nations. Land Claims recognize that Aboriginal People in Canada are the original occupants of the land, with legal rights and title. In a Land Claim, Aboriginal people grant the government specific rights of entry, access and land use: in exchange for those rights, the government confers certain benefits on original holders of the land. Usually that’s meant money, special rights of land use, and other negotiated benefits.

Oh, and one more thing. Land Claim Agreements generally extinguish any further Aboriginal claim on the land under negotiation.

in my next post, we’ll look at that approach in theory and in practice, using one specific land claim agreement as our example.