At the time this article was written Tony Penikett was a member of the Yukon
Legislative Assembly. He had been premier of Yukon from 1989 to 1992.
The experience of negotiating land claims and self government agreements
with Yukon's fourteen First Nations over the last twenty years may be
instructive for other jurisdictions beginning the process. The Yukon claims
settlement in many ways resembles other modern treaties. Many difficult
questions faced the negotiators for all three parties. Given the time and
energy invested by the parties, especially the Federal Government in working
through these problems, one can safely predict that Ottawa will propose similar
solutions to other claimant groups.
The Yukon Land Claims Settlement provides that First Nations receive title
to 41,000 sq. km. (more than all the Indian reserves in Canada put together),
$260 million plus dollars for training, conservation and implementation,
co-management of wildlife, and a commitment to negotiate self government. These
provisions will be shared among the fourteen First Nations. The self government
agreements will replace the Indian Act with individual first nation
constitutions that describe the land-based local government powers and the power
to provide services for First Nations citizens.
The Yukon agreements make history in several ways. For the first time a
treaty with aboriginal peoples provides constitutional protection for wildlife.
For the first time a land claims agreement creates a constitutional obligation
to negotiate self government agreements. For the first time the complete
extinguishment of aboriginal title was not a condition of the claims agreement.
Never before, in any region, has the aboriginal, or Third Order, of government
been so clearly established in law. Yukon negotiators also broke trail with a
relatively open negotiating process and the use of consensus working groups on
Among the complex issues addressed at the Yukon negotiating table were the
problems of eligibility, conservation, secrecy, self government powers,
financing and entrenchment.
The question of who ought to be allowed to benefit from a claims settlement
needed to be resolved before negotiations could begin in earnest. Most of the
territory was not covered by any treaty and the Kaska Nation in the
southeastern corner believed they would have been included in Treaty 11 without
their consent. There was no question that the Indians on the band lists of the
Federal Government had a legal claim. Their non-status cousins' position was
not so clear. The Federal Government was reluctant to assume responsibility for
meeting the needs of this group in the territories while maintaining that their
counterparts south of the sixtieth parallel were under the jurisdiction of the
provinces. As they had in the provinces, the Federal Government had funded two
separate aboriginal organizations in the territory, the Yukon Native
Brotherhood for Status Indians and the Yukon Association of Non-Status Indians
for the rest. However, strong feelings persisted that the Indian Act
unnaturally divided the aboriginal community and that an Indian who had been
"enfranchised" during military service ought to be as entitled to
advance a claim as the non-Indian who had married into a first nation.
Consequently the two organizations resolved to form a third, the Council for
Yukon Indians, that would represent the whole native community at the
Since construction of the Alaska Highway in 1942, many Indians had married
non-Indians. The new organization argued that descendants of these marriages
should be eligible beneficiaries under the claim and adopted a rule certifying
anyone who could prove they had an Indian grandparent living in Yukon in 1942.
Some 8000 first citizens will benefit from the settlement.
Underlying the need to define beneficiaries was the question of numbers. In
the past, land quantum and money had been calculated on a per capita basis.
When the Yukon negotiators abandoned this approach in 1986 in favour of
reconciling the interests of all parties, the concerns about numbers were
In 1973 Prime Minister Trudeau accepted this organization's statement
"Together Today for Our Children Tomorrow" as the basis for a claim
to land and resources in the Yukon and serious negotiations began. The amount
of settlement land continued to invite controversy throughout the talks,
especially with opponents of the process. An equally contentious issue
troubling the aboriginal leaders was the question of land tenure or form or
title on the Indian land. Reserve status, under which option the crown held
title for the benefit of beneficiary band members, might prevent the
dispossession that seemed imminent in Alaska where the natives had accepted the
corporate or private ownership model in their claims settlement a dozen years
before. However crown ownership limited aboriginal control and jurisdiction
over tribal lands. Federal policy requiring extinguishment of any remaining
aboriginal claims as a condition of settlement presented another obstacle. Few
could define Aboriginal Title precisely, but the Yukon Chiefs demanded respect
for their ancient interest in the region. Aboriginal elders believed
extinguishing aboriginal title was synonymous with extinguishing aboriginal
culture. They had rejected a previous settlement on this point and would not
We resolved all these questions in an agreement that recognized first nation
ownership on 41,000 square kilometres of land, to be allocated among the
individual fourteen First Nations in accord with the principles of balanced
selections and protection for existing third party interests. On much of the
land Indians would hold subsurface rights as well as surface title. The Federal
Government dropped insistence on "extinguishment" and allowed
aboriginal title on settlement land.
This major shift in policy marked the first time the Federal Government had
not sought and obtained a complete extinguishment of all aboriginal title. The
solution came from a consensus task force formed by the three parties to pursue
innovative ways to accommodate the interest of the Federal and Territorial
Governments in achieving certain title to lands and resources in the territory
and the First Nations interest in retaining aboriginal title.
Whether one is negotiating a collective agreement or a nuclear weapons
reductions, the usual advice is to do your talking behind closed doors. Public
discussion invites posturing and hurts compromise. However with something as
complex and consequential as land claims negotiations public demands for
information have to be met or suspicion and distrust and perhaps rejection will
greet the results. The 1984 Land Claims agreement was rejected in part because much
of it was negotiated by lawyers at high-rise hotels in Ottawa and Vancouver.
Both native and non-native Yukoners were skeptical about the deal.
Yukon Government polling showed that while there was general support for
Aboriginal self government, the support dropped the more specific the power
mentioned. Public understanding of what may be at stake in other provinces will
assist the negotiators there enormously.
When negotiations resumed in 1985, all parties agreed to hold the talks in
the affected communities. In addition, negotiators devoted special attention to
information needs of interests such as the municipalities and sports hunting
groups. Municipalities were invited to attend the caucuses of territorial
government negotiators where they received briefings and advised those at the
table of their concerns. If the First Nations agreed, municipalities within
their traditional area could send observers to the negotiations. At all stages,
territorial negotiators made special efforts to keep the local governments and
special interest groups informed.
Finally at crucial stages, Agreements in Principle or Model self government
Agreements for example, the minister responsible for claims negotiations gave public
briefings in the communities. The territorial government made every effort to
secure public support for the agreements as they were negotiated. Between, 1989
when the AIP was concluded and 1992 when the self government model was
complete, there were over 100 question and answer sessions around the Yukon.
The average citizen might not appreciate all the nuances in the discussions
about treaties, sovereignty and inherent right versus delegated responsibility
but the national debate about Aboriginal self government made it plain that
most aboriginal groups want powers that were awarded to the provinces when the
Canadian Constitution was written in 1867. Although the Federal Government has
responsibility for native peoples, it cannot by itself grant Indian bands
provincial type powers, except north of the sixtieth parallel. Even in the
territories, it was never a simple matter because over the years the
territorial governments had acquired through devolution many of the
administrative functions of provinces. To protect the territorial interest,
members of the Yukon legislature pressed hard for a seat at the claims
negotiating table. Perhaps because they trusted the Federal Government no more
than non-natives, aboriginal negotiators agreed to a third party at the talks.
Protracted negotiated eventually forged some practical arrangements, a form
of power sharing the exact like of which Canada has not seen before. Under the
Yukon model self government agreements First Nations have three types of
powers. First, they may write their own constitutions and remove their band
from the dictates of the Indian Act. Second, they have jurisdiction over
all their lands, including the usual powers of local governments to zone, plan
and make bylaws. Third, they may deliver provincial type services such as
health, child-care, educational or training programs to their citizens wherever
they live in the Yukon.
Flexibility is a key feature of the model agreement. If a first nation
wishes to continue to receive a service from some other government it can do so
until it is ready to take it over. Questions about public safety that troubled
some Premiers at Charlottetown, the Yukon negotiators addressed by requiring
the authorities at hand to act immediately and leave any jurisdictional
questions to be sorted out later. For example, if a non-native child resident
on Indian land required protection from an abusive parent, the First Nation
would take the child into temporary care until a territorial government social
worker arrived. The same would apply in the case of an aboriginal child at risk
in the city of Whitehorse.
Who should pay for self government? The Federal Government wanted provinces,
territories, and First Nations to share the burden. The provinces argued that
it was federal responsibility, and perhaps also the First Nations. Aboriginal
groups believed the constitution made it a federal duty. We sorted through all
this by agreeing that the Federal Government would finance self government by
providing First Nations enough money to deliver services to their citizens up
to the standard enjoyed by the general public plus sufficient funds for the
Yukon to help implement self government without lowering the standard of its
services to the same public. The territorial government will contribute to self
government any savings it realizes through First Nations taking over
responsibility for services the territory now provides. All the money will flow
through implementation funding contracts reached through some tough bargaining.
First Nations enjoy taxation powers that may in future choose to follow them to
enhance the quality of services to their citizens.
On southern reservations Indians are exempt from taxation. With passage of
the claims legislation under which the Federal Government buys out this
exemption, Yukon Indians will begin to pay taxes off all kinds. This provision
was necessary for several reasons, not the least the need to achieve tax
fairness in future between Indian and non-Indian businesses operating side by
The one outstanding issue in respect to the Yukon settlement is
constitutional protection or entrenchment. The land claims agreement is in
essence a modern treaty and as such will appended to constitution according to
the provisions of Section 35. Although the claims treaty obliges the Federal
Government to negotiate self government agreements themselves will not be
protected. Both the First Nations and the territorial government lobbied to
have the self government accords covered as if they were parts of the treaties
but the Federal Government agreed to entrenchment only by way of a
constitutional amendment. Since the failure of the Charlottetown Accord this
remains unfinished business.
Yukon based negotiators wanted only to find local solutions at land claims
negotiating table. They never really wanted to create national precedents in
our claims and self government negotiations. The Federal Government may have
had other ideas.