Different dispute resolution mechanisms, including treaties, litigation, negotiation and, to a lesser extent,
mediation and arbitration, have been employed to resolve land disputes in Canada over the centuries. Since 1973,
the federal government has unilaterally developed and reviewed land claims policies which favour negotiation to
resolve land claims between governments and First Nations, Further, two regional institutions were created in
Ontario and British Columbia to facilitate the resolution of these complex claims. Various processes have also been
used to resolve similar claims in New Zealand and Australia.
The problems associated with the present land claims processes in Canada have been discussed for more than
twenty years. The purpose of this thesis is to analyze the appropriateness of the various dispute resolution
processes which are, or could be, employed to resolve the land question in Canada. The search for dispute
resolution mechanisms suitable to resolve land claims is undertaken in light of the two basic characteristics of the
relationship of the parties to these disputes: the cultural differences, and the imbalance of power between the
parties. The first chapter of my thesis examines the history of land claims policies and processes in Canada,
discusses the historical relationship between Aboriginal peoples and governments, and explores the main
assumptions, premises, values and beliefs held by the parties involved in Aboriginal disputes, and the dynamics of
their relationship. The following three chapters discuss specific dispute resolution processes which have been
employed to resolve the land question in Canada. At the end of each of these chapters, suggestions are made to
improve these various processes. Chapter Two analyzes the advantages and disadvantages of litigation in the
context of Aboriginal land cases. Chapter Three examines the process of negotiation, with a focus on the federal
government’s policies on land claims. Chapter Four discusses the processes of mediation and arbitration, and
considers the appropriateness of these mechanisms to resolve land claims in Canada. Chapter Five provides a
comparative look at three institutions which have been created to resolve Aboriginal claims in New Zealand,
Australia and Canada: the Waitangi Tribunal of New Zealand; the National Native Title Tribunal of Australia; and
the British Columbia Treaty Commission. Finally, Chapter Six identifies the essential elements which must be
present for dispute resolution mechanisms to be successful in the Aboriginal land claims context and integrates
these basic principles into a general model of dispute resolution for Canada.
In the course of my research, I have examined literature dealing with alternative dispute resolution (ADR), the
resolution of Aboriginal claims, and on Aboriginal law generally. Throughout this thesis, I have used different
methods of research and analysis. The critical approach is used to question the self-professed legitimacy and
fairness of some dispute resolution processes, as well as to examine the theoretical underpinnings of various
processes for cultural biases. The comparative method is helpful in analyzing different institutions that have been
created in Australia, New Zealand and British Columbia to resolve Aboriginal claims. Finally, considering that
the field of dispute resolution is informed by a wide variety of disciplines, the interdisciplinary approach is used to
present different propositions concerning which dispute resolution mechanisms are the most appropriate to resolve
Aboriginal land claims based on anthropological, historical, sociological and political variables. One of the
difficulties in trying to find appropriate dispute resolution mechanisms to deal with Aboriginal land claims is to
accommodate the diversity of the approximately 633 First Nations in Canada. Another difficulty relates to the fact
that most of the ADR literature rarely addresses the issue of cultural differences.
This thesis concludes that the various dispute resolution mechanisms studied have both advantages and
disadvantages for resolving the land question in Canada. I suggest that each mechanism has a role to play in the
overall process of resolving Aboriginal land claims as long as it accommodates the cultural diversity and ensures
that all concerned have a voice in designing the process(es) employed to resolve land disputes. This thesis also
recommends the creation of an independent land claims body which would provide the benefits of third-party
intervention while avoiding the deficiencies of the present judicial system. Objectives would be to reduce costs,
expedite procedures, permit flexibility in the handling of polycentric problems, maximize the involvement of the
parties in the process and outcome, and facilitate the production of a settlement which contributes to future
harmonious relationships between Aboriginal and non-Aboriginal society. The most important element remains
that discussions about possible changes to the existing processes should occur between governments in partnership
with the First Nations of Canada, and in consultation with non-Aboriginal interests. / Law, Peter A. Allard School of / Graduate
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/30322 |
| Date | January 1996 |
| Creators | Montminy, Joëlle |
| Publisher | University of British Columbia |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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