The Totalizing Nature of the Canadian State: Modern-Treaties in the Era of Recognition

IntroductionModern-day treaties, including both land claims and self-government agreements, are legal arrangements that propose to settle any outstanding dispute over land and legally define the rights, responsibilities and relationship between Canada and an Indigenous Nation. Modern-day treaties are said to be a critical piece achieving lasting and true reconciliation.1 Many non-Indigenous Canadians look to this process to achieve this objective, but of the small number of modem-treaties that have been settled there continues to be numerous disputes over the control of Indigenous lands and resources. The Tlicho, whose land claim is ten years old, recently filed a lawsuit against the Government of Canada over what they felt were unilateral changes to their powers and control over lands and waters as outlined their self-government agreement. Canada's objective is to create a streamlined process to ensure development proceeds a timely manner. The result, if Canada is successful, will be a homogenized approach to land management regimes across the entire Northwest Territories. Indigenous politics Canada are largely about maintaining distinctiveness and ensuring Indigenous people have the political and physical space to do so. The proposed changes would limit the Tlichos' ability to do this.This paper seeks to demonstrate that despite the advancement the recognition of Aboriginal rights, the modern-day treaty processes fails to achieve true reconciliation and certainty. The discussion is centered about the concepts of hegemony and totalization and two broad themes - land claims and self-government.The current method of redefining the Indigenous-state relationship is the modern-day treaty process. For the government of Canada the purpose of the modern treaty process is certainty and clarity of the right to ownership and use of land and resources2 and to define the breadth of rights and jurisdictions that Aboriginal groups have in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.3 For many First Nations, land claims and self-government agreements represent an opportunity to get out from under the oppressive, capitalist, Eurocentric Indian Act and protect and promote their language, culture and way of life.4 A central provision to all land-claim and self-government agreements is certainty, that is the rights and obligations of all parties are exactly known and understood. But as we are seeing early implementation of modern treaties it appears that Indigenous peoples and the state are as far apart their understanding of the modem treaties as they were when the original treaties were negotiated nearly 100 years ago. The reality appears to be that Indigenous peoples are expected to give up large tracts of land and their Indigenous rights for a small fraction of their traditional territory and a narrowly defined set of rights.The current recognition-based models utilized to re-define the Indigenous-state relationship have been criticized as problematic and an unworkable model for advancing Aboriginal rights or overcoming the oppressive nature of their relationship with the colonial government. This, I will argue the following pages, is clearly demonstrated the modern-day treaty process. The modern-day treaty process is little more then a change practice with no real departure from the underlying assumptions that informed the negotiations of the original treaties and, as characterized by its totalizing nature, modern-day treaties entrench the hegemony of non-Indigenous economic and political interests Indigenous governance.In what follows I will assess the issue of modern-day treaties through a discussion of land ownership and land management. Many consider the return of Indigenous lands and decision-making control over those lands an important and useful tool of the modern-day treaty process. …

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