Negotiating Claims

The Emergence of Indigenous Land Claim Negotiation Policies in Australia, Canada, New Zealand, and the United States

Christa Scholtz

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135507275
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Why do governments choose to negotiate indigenous land claims rather than resolve claims through some other means? In this book Scholtzexplores why a government would choose to implement a negotiation policy, where it commits itself to a long-run strategy of negotiation over a number of claims and over a significant course of time.

Through an examination strongly grounded in archival research of post-World War Twogovernment decision-making in four established democracies -Australia, Canada, New Zealand, and the United States-Scholtz argues that negotiation policies emerge when indigenous people mobilize politically prior to significant judicial determinations on land rights, and not after judicial change alone. Negotiating Claims links collective action and judicial change to explain the emergence of new policy institutions.

Chapter One

Introduction

WHY NEGOTIATION?

Since World War Two, there has been a global trend of increasing political activism of indigenous peoples. This resurgence has sustained an important dialogue in the post-war global rights revolution¹ that explores the tensions inherent in the recognition by liberal individualist states of the collective rights of indigenous peoples to self-determination. At the core of this resurgence, there is a demand for a decolonization of relations between indigenous peoples, the “nations within,” and settler states. The global narrative in this decolonization of relations is to achieve an internal reconfiguration of power where collective rights of indigenous peoples are recognized and given force within philosophical and legal regimes that give normative priority to individual rights.

At the heart of indigenous grievances, there is a call for a reallocation of power on the basis of collective rights. These grievances must be put in real world terms, in the form of political demands that can at once mobilize indigenous energies and be processed and understood within the real world political context. This requires policy demands that are actionable. The challenge for indigenous activism is to operationalize a demand for power sharing and a recognition of collective rights that simultaneously mobilize indigenous peoples and elicit a supportive (or at least benign) response from the broader society. This challenge is to move demands from the lofty realm of political theory to the grubby world of policy. How these narratives are told is not without consequence. Care must be taken in how claims are packaged, since “whatever else might be said about the character of indigenous rights, they are ‘mediated rights’: the recognition of indigenous interests in land as legal or political rights inevitably transforms those interests.”² The challenge for indigenous activists is to make an actionable claim for recognition to governments in the form of a reasonable policy alternative that the state can understand, digest, accept, and institute.

In this study, I focus on how policy-makers respond to the critical actionable demand made by indigenous peoples worldwide to recognize their land rights and resolve their land claims. These are claims regarding both historical dispossession and continuing land ownership and use. This study asks the following question: Why do governments choose to negotiate land claims rather than resolve claims through some other means? In this study, I am not concerned with why a government might choose to negotiate one claim at a given time. Rather, I am interested in exploring why a government would choose to implement a negotiation policy, committing itself to a long-run strategy of negotiation over a number of claims and over a significant course of time. Answering this question requires an analysis of policy options open to a government at a given opportunity and of the conditions which facilitate or mitigate its choice to negotiate. This study examines the emergence of a particular type of policy response and the institutions that support it.

Why is the negotiation outcome interesting? If policy-makers are to choose a negotiation policy, they must reach two prior conclusions: 1) that they will recognize indigenous special land and political rights claims by enshrining the principle of indigenous consent in the policy process, and 2) that policy-makers will not divorce themselves politically from the outcomes of negotiation by delegating their decision-making power to another party. To negotiate is to recognize collective rights while inviting possible blame for policy outcomes that will likely prove unpopular. Therefore, negotiation is actually a politically risky strategy. After all, “…indigenous peoples' claims to continued sovereignty over their territories question the source and legitimacy of state authority.”³ To some degree, engaging in a negotiation process legitimizes the claim that the authority of the state rests on shaky ground, and opens up the Pandora's Box of historical wrongs perhaps best left undisturbed. In other respects, policy-makers' usual payoffs for engaging with social groups are arguably too minimal to be worth the potential costs: little opportunity to win over a significant set of voters in return for some risk of electoral backlash, and a high risk of creating uncertainty among well-entrenched property interests over the ability of the state to act as their guarantor.

To understand what drives policy-makers to the negotiating table, I base my analysis on its normative underpinnings. The recognition of indigenous collective rights, at the heart of the negotiation choice, challenges deeply held notions of national citizenship. The western liberal ideal has been that all citizens in a political community should be equal members of that community, where equality is defined by a common parcel of rights which every citizen shares. At any given point in time, the story of indigenous land claims shows that policy responses are reflections of how government actors believe aboriginal people and the rights they claim can fit within a national dialogue on citizenship. In discussing land claims, policy-makers stake out the conditions under which collective cultural or property rights can coexist within a national citizenship regime. The key to understanding the emergence of negotiation policies is to trace the factors that push and prod this dialogue about citizenship within governments.

In this study, I lay out policy-makers' conceptual frameworks, and I examine how their predispositions on the issues of civilization and citizenship color their evaluations of a negotiation policy's political acceptability and administrative feasibility. This focuses on whether and how policy-makers' conceptual underpinnings shift prior to a negotiation choice being made, and before the point where concrete outcomes of the policy become clear. I also take care to understand how ideology is constrained by the more practical pressures that lead policy-makers to privilege one policy option over another. This calls for an analysis of relative risks, costs, and benefits across policy options. Policy-makers may be ideologically predisposed to accept some policy choices but be jostled by circumstances to institute others. To gain a firm grasp on policy change generally, and on the emergence of negotiation policies specifically, one must examine how policy-makers' expectations about future policies develop. Herein lies the challenge of pressure politics for any social group: to engage with state actors not only to persuade and effect a profound attitudinal change, but also to create conditions where state actors respond in a manner in line with that group's policy preferences.

This project reaches out to address questions of interest to political scientists who may have never cast an interested eye on the politics of indigenous peoples. An important objective of this research is to understand how politically and economically marginalized communities engage the state to achieve policy outcomes that threaten entrenched norms, economic interests and the interests of the state itself. The project speaks to the effectiveness and the limitations of political and judicial strategies available to these communities in seeking leverage over government action. In contexts where groups have limited electoral resources or opportunities to build coalitions with other groups in order to pursue smaller and more targeted policy goals, the ability of social groups to build communities of interests within and across the state is critically important.

The Cases: Australia, Canada, New Zealand and the United States

The development of indigenous land claims politics is examined in four countries, primarily since the Second World War: Australia, Canada, New Zealand, and the United States. A wide comparative analysis necessarily takes the eye away from important nuances; however, by widening the geographic scope of this study, I achieve key methodological aims. First, variation on the dependent variable is maximized. Just as indigenous peoples have always pressed for recognition of their land rights and claims, states have always responded. States have experienced three broad stages in indigenous policy development, ranging from dispossession, assimilation, to self-determination. The responses of states have varied in form, timing, intent, and effects. Governments in each of the countries noted above faced key decision-making opportunities at different times, and only by widening the study's perspective to include countries around the globe can one appreciate the full range of options theoretically available to policy-makers. I ask what factors in each country truncated the set of considered policy options, and whether the negotiation option was among them. I examine the legacies of previous policy choices in light of the set of options available at later choice opportunities. Also, when looking at negotiation outcomes, a wider scope provides an appreciation of both intra- and international variation.

How do these cases array on the dependent variable? Who has implemented a negotiation policy and who has not? Both Canada and New Zealand have embraced land claim negotiation policies that have included a wide range of claimant groups and involved all regions of the country. These policies are national in scope and are considered institutionalized alternatives to litigation. Canada adopted its negotiation policy in 1973, with New Zealand following in 1989. Prior to its negotiation policy and after 1951, Canada allowed Indians to pursue land claims in the courts. In New Zealand prior to 1989, there was little effective remedy for claims until the creation, in 1975, of a strictly advisory body called the Waitangi Tribunal. From 1975 until 1989, the New Zealand government engaged in some negotiations on an ad hoc basis, but it was not until 1989 that the formal negotiation policy was implemented.

Canada and New Zealand stand in contrast to the other two cases. Australia represents a case of halted and gradual negotiation. The Australian Commonwealth instituted a negotiation policy in 1976, but this effort was limited to the one area of the continent where the Commonwealth has exclusive jurisdiction–the Northern Territory. An attempt by the Hawke Labor government to extend the negotiation policy to the States failed in the mid 1980s. However, in 1993, a limited national negotiation policy was implemented under the Commonwealth's Native Title Act. Only recently, since approximately 2000, have attempts at regional agreement-making begun to emerge. Finally, there is the United States. The United States represents the non-negotiation case. Since the formal end of treaty-making in 1871, the United States has preferred litigation and special-party arbitration to negotiation. From 1863 to 1946, Indian tribes were allowed to sue the United States in the Court of Claims once they petitioned Congress and received a special jurisdictional act. In 1946, Congress created the Indian Claims Commission to litigate a backlog of historical claims, while allowing tribes to bring claims arising from actions after 1946 to the Court of Claims. With the closure of the Indian Claims Commission in 1978, the courts have once again been the arena in which claims resolution is pursued. While a few claims have been negotiated on an ad hoc basis and after protracted litigation (e.g. Maine and Florida settlement agreements), no formal or institutionalized alternative to litigation has emerged.

These cases form a useful universe for comparison. First, each is a settler state with a history of British colonialism. Each has a developed common law legal system with independent judiciaries. Each is a developed industrialized state with administrative capacity and has shared similar assimilationist philosophies regarding indigenous peoples. However, the situation varies as to when courts became active players in developing indigenous rights jurisprudence. In each case, except the United States, indigenous people had mobilized politically before key judicial decisions examining the status of their rights under the common law were made. These four countries also vary in key institutional respects. The three federal states and one unitary state (New Zealand) have different jurisdictional rules governing the roles of national and sub-national governments in indigenous affairs. Also, in the cases of Canada and Australia, the federal government is the sole sovereign over internal territories (the Northwest, Yukon, Nunavut, and Northern Territories), creating an interesting situation where unitary “islands” exist within the boundaries of federal states. Only the United States has a presidential system of separated powers, where both the legislative and executive branches play significant roles in policy formulation and implementation.

CONCLUSIONS

A critical task of this study is to parse out the relative weight of judicial versus other arguments in explaining executive negotiating behavior. Scholars point to the judicialization of politics as one of the “most significant trends in the late-twentieth and early-twenty-first century government.”⁴ Catalytic court decisions recognizing indigenous property rights for the first time are most often identified as the primary causal force behind the advent of land claim negotiations. While I explore the important role that courts play, I insist on explaining the emergence of negotiation policies in conjunction with the ability of indigenous groups to leverage potential and actual judicial changes into political gains. I explain the emergence of negotiation policies by the interaction between judicial change and indigenous political mobilization, and not judicial change alone. Specifically, the sequencing of political mobilization prior to judicial determinations of indigenous land rights significantly changes policy-makers' evaluations of their policy alternatives. Political mobilization before significant court decisions means that policy-makers must make policy choices in a context where indigenous people can credibly threaten to impose future political costs. Political mobilization changes policy-makers' long-run payoffs, and this increases the likelihood that negotiation will emerge.

Before the political mobilization and organized public protest of indigenous peoples that began seriously in the mid 1960s, the aboriginal policy agenda in these four polities was largely defined by non-indigenous advocates firmly wedded to an assimilationist or integrationist agenda. While non-indigenous advocates for aboriginal policy reform were important supporters for the extension of equal citizenship rights to indigenous individuals, their support did not extend to the recognition of special indigenous rights. Policy-makers, most markedly in Canada and the United States, believed that delegation of land grievances to the courts was appropriate because all citizens, indigenous or not, should have recourse to the judicial branch. Policy-makers reasoned that they would win some and lose some in the courts, and should the courts deny a claim, that there would be no subsequent political repercussions. Delegation to the courts was not so much a blame-avoidance strategy as a means of inculcating indigenous people to act as proper citizens. Use of the courts served assimilationist principles, and was associated with a greater dialogue of equal and undifferentiated citizenship that held little sympathy for indigenous peoples' special rights.

Examination of cabinet memoranda and records of cabinet discussions reveal that land rights were forced onto the cabinet agenda only through the representations of indigenous peoples. The mid-1960s marked an important qualitative change in indigenous political history across all the countries in this study. During this decade of the civil rights movement, indigenous political organizations expanded their repertoires to include collective action through public protest. Land rights became the central symbol around which disparate indigenous groups could unite. Once indigenous peoples demonstrated publicly that they could unite behind a common agenda, indigenous peoples began to matter in the policy process as never before. The key effect of indigenous political mobilization, in the mid 1960s, was to make policy-makers aware for the first time that indigenous peoples could be political entities on their own terms, and could impose potential costs on policy-makers in the future.

The engine behind the emergence of negotiation policies is political mobilization before judicial change. I demonstrate how this argument applies across all four countries. However, this study's cross-national design has allowed me to identify two variables which condition policy-makers' evaluations of the negotiation option. These variables are: 1) political norms that affect policy-makers' underlying preference for delegation; and 2) federalism, specifically the allocation of legislative competence over aboriginal affairs and resource management.

Even in the presence of judicial change and political mobilization, policy-makers may be restrained from delegating political decisions to courts by internal norms over the appropriateness of judicial policy-making and review. I find the effect of this political norm in the two extreme cases: the United States (pro-delegation) and New Zealand (anti-delegation). In the United States, a fundamental narrative in the American political project is the role of the judiciary in ensuring the Constitution's integrity. The Supreme Court, not Congress nor the President, is the ultimate arbiter of justice. In this political culture, to provide a policy alternative outside of the court system is to risk thwarting fundamental justice. This norm privileges the delegation of policy-making functions to the judiciary. In contrast, the norm of parliamentary sovereignty as it is expressed in New Zealand holds the opposite. In New Zealand, governments traditionally view judicial review as fundamentally undemocratic, and resist the delegation of policy-making functions from Parliament to the courts. In the New Zealand political dialogue, the legitimacy of non-judicial dispute resolution mechanisms is much higher, and a negotiation policy is, ceteris paribus, more likely to emerge.

This study also explores how one particular institutional variable, federalism, impacts the probability that a negotiation policy will emerge and diffuse across state borders. Federalis...