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The spirit and intent in land claims

Dene Nation Chief Norman Yakeleya wants the GNWT to meet with Indigenous governments to ensure Indigenous principles are incorporated into the future of a community-oriented child welfare system.

It was around 1920 when drillers struck oil in the Mackenzie region, though the Dene knew of oil seeps long before.To politicians of the day, the oil field near what came to be known as the community of Norman Wells held untold economic potential.

Norman Yakeleya: was a negotiator of the Sahtu Dene and Metis Comprehensive Land Claim Agreement.

But the territory had not been ceded.

"The outsiders were on our land without any type of permission and digging around for resources," said Norman Yakeleya, a former MLA for Sahtu.

"They trespassed on our land."

What looked like the dawning of an oil boom prompted Canada to pursue a treaty with the Dene people.

Treaty 11, which covers a 950,000 square-kilometre swath of land that includes parts of the Yukon, the Northwest Territories and Nunavut, was signed in 1921. It promised money, supplies, hunting and fishing rights and other provisions in exchange for title to the land.

Over the decades, "we kept our treaty, our promises," said Yakeleya.

"The government hasn't kept their promises."

In 1993, 72 years after Treaty 11 was signed, the Sahtu Dene and Metis entered into a new agreement with the governments of the Northwest Territories and Canada: the Sahtu Dene and Metis Comprehensive Land Claim Agreement.

Often referred to as a "modern treaty," the agreement guarantees the Sahtu Dene and Metis title to an area of land a little larger than Vancouver Island, and subsurface rights to a 1,813-square-kilometre tract of that land. The deal also includes the right to hunt all species of wildlife throughout the larger Sahtu Settlement Area.

One of five

The Sahtu Dene and Metis Comprehensive Land Claim Agreement is one of five finalized agreements in the NWT that involve land.

The Inuvialuit Final Agreement took effect in 1984 and the Gwich'in Comprehensive Land Claim Agreement came into force in 1992.

The Salt River First Nation Treaty Settlement Agreement was signed in 2002 and provides for 414 square kilometres of reserve land dispersed in parcels in around NWT and Wood Buffalo National Park.

The Tlicho Land Claims and Self-Government Agreement, signed in 2003, is the first agreement in the NWT to combine land, subsurface resources and self-government.

The self-government provision gives the Tlicho Community Governments authority to pass and enforce laws and manage lands and resources.

Deline has a stand-alone self-government agreement.

Yakelaya was the chief negotiator of the Sahtu Dene and Metis land claim. He said that 25 years after its signing, the agreement is a long way from being fully realized.

"We're still in the growing pains," he said.

The agreement, he said, is about the Dene and Metis people governing their land according to their own laws, beliefs and values.

It is also about equal coexistence with the governments of the NWT and Canada.

One issue, said Yakeleya, is the agreement is understood differently by the different parties.

"The government sees this as a final view...and it's short-sighted on their part," he said.

"For us, that wasn't the spirit and intent. We know we're going to have to make some changes and adjustments and have some flexibility."

Ken Coates, a public policy professor at the University of Saskatchewan who specializes in Northern history and political development, said there has been a vast chasm between the federal and

Indigenous governments' interpretations of treaties.

To Ottawa, a treaty was an end in itself: It meant certainty, particularly surrounding control of natural resources, said Coates.

A means to an end

To Indigenous governments, he continued, a treaty is a means to an end.

"The treaty is a means to get the tools they can use to address their social, economic and cultural aspirations. The goal is actually cultural survival, cultural renaissance, cultural stability."

The Liberal government says it believes in the idea of a treaty as a living document, said Coates, but if that was the case, it would not now be pushing agreements that are several hundred pages long and written in legal prose.

"They would be signing a very philosophical statement that essentially says, 'We promise to share our general prosperity of Canada to ensure that Indigenous peoples have the right to self-govern their own affairs and manage their own traditional territories within the boundaries of Canadian law," he said.

"We would sign a treaty and figure out the words in a day."

Instead, negotiating and implementing a land claim agreement takes decades.

Currently in the NWT, there are nine land, resource and self-government agreements in various stages of negotiation.

Finalizing these agreements is a key priority of the current territorial government.

Settling land claims, Premier Bob McLeod told the legislative assembly on May 24, is a "critical factor in affirming the rights of Indigenous people in these regions, creating certainty and helping unlock the economic potential of the Northwest Territories to create benefits and opportunities for all residents."

The obstacles to ratifying a land claim are numerous.

For one thing, said Coates, these binding agreements carry massive implications for the future, so getting consensus at the community level can be challenging.

For another, some claims are overlapping, such as those of the Akaitcho Dene and the Northwest Territory Metis Nation in the southeast NWT.

In 2016, Thomas Isaac, a lawyer specializing in Aboriginal law (the term "Aboriginal" is used in the legal context), was appointed by the minister of Indigenous and Northern Affairs to examine land claims and negotiations in NWT.

Thomas noted that carving up territory would not work in the southeast, and wrote that a new and flexible approach was needed.

Garry Bailey, president of the Northwest Territory Metis Nation executive, agreed.

"We weren't just in one place, our ancestors went all over," he said.

"We should be able to share the land, especially with harvesting within each other's territories.

"I would never tell another Aboriginal person that they can't come to our area and harvest."

Since Isaac's report, new offers have been made to the Akaitcho Dene First Nations, Northwest Territory Metis Nation and Dehcho First Nations.

Bailey said negotiations have improved somewhat since the Liberal government came into power, but there are still issues involving transparency and equality.

"We don't know what the other groups, the unsettled claims are getting and the ones that are settled, it's hard for us to get the same thing," he said.

"Equality should be guaranteed."