Kulchyski

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M O D E R N T R E AT I E S , E X T R A C T I O N , A N D I M P E R I A L I S M I N C A N A D A ’ S I N D I G E N O U S N O R T H : T W O C A S E S T U D I E S Peter Kulchyski and Warren Bernauer Abstract Drawing on case studies from Nunavut and Denendeh (Northwest Territories), we argue that the institutions created by modern treaties are poorly positioned to repre- sent the interests of Indigenous hunters. These capital/land-holding institutions have objective interests in the opportunities for economic growth provided by extrac- tive projects. The debates around uranium mining in Nunavut and a natural gas pipeline in Denendeh demonstrate how land claims institutions work with extrac- tive capital to defuse dissent to unpopular and highly destructive “development” projects. These institutions are key mechanisms in contemporary processes of dispos- session and imperialism. Grassroots resistance remains the most effective tool for defending local food production systems. I n the 1970s, Canada’s Indigenous North was faced with a number of extractive “mega projects,” two of which generated national debate around issues of Indigenous life ways versus resource extraction-based economies: hydroelectric developments in Quebec and the Mackenzie Valley Pipeline proposal in the Northwest Territories (NWT). (Unlike these high-profile projects, hydro development in Northern Manitoba and a variety of other specific projects did not generate substantial national attention.) The debates that surrounded Quebec hydroelectric projects and the Mackenzie Valley Pipeline proposal helped define for a generation the notion that develop- ment/destruction could not take place as it had for the previous century, that Indigenous peoples were players in northern development who had to be Studies in Political Economy 93 SPRING 2014 3

4 Studies in Political Economy accommodated, and that new structures must be developed as vehicles for negotiating such accommodation—both to ensure a more equitable redis- tribution of benefits and to guarantee that Indigenous parties would have strong representation in planning and implementing agreements. This new social context for northern development projects had three key elements. First, a doctrine of Aboriginal rights and title evolved in Canadian (and other) courts, including in the last decade the still not clearly defined notion that States have a duty to consult with Indigenous peoples about developments on their traditional territories. Second, modern treaties, called “Comprehensive Land Claims” in the early 1970s, were negotiated by States to ensure surrender of Aboriginal title: Indigenous communities entered into negotiations, in part, to ensure that they had resources and other struc- tures that could be used to influence decisionmaking and negotiations surrounding extractive projects. Third, self-government agreements were discussed at the constitutional table and during the Charlottetown Accord meetings to ensure that Indigenous communities were working with a local governing structure that was effective and culturally appropriate. It must be acknowledged, however, that the Charlottetown Accord meetings failed and that these self-government agreements were not negotiated that often. This paper focuses on how modern treaties are vehicles that can either empower or disempower northern Indigenous communities. Modern treaties—agreements between the State and Indigenous groups that possessed previously unextinguished Aboriginal title to their territory—have a number of common characteristics. All attempt to resolve the “murky” issue of Indigenous sovereignty that burdens both the State and extractive capital. This is generally accomplished by “extinguishing” Aboriginal title or by exhaustively demarcating the rights Indigenous communities possess to their territory. In return for extinguishment/exhaustion, these treaties provide for a transfer of financial resources from the State to the Indigenous group. Surface and mineral rights to small portions of the territory in question are retained by the Indigenous group, while a variety of specific rights (many of which often concern hunting rights) are entrenched. Modern treaties also give rise to new institutions. The first is a new type of Aboriginal organization with a not-for-profit corporate structure, charged

Kulchyski and Bernauer / T R E AT I E S 5 with managing financial resources and land. These new organizations are also intended to represent politically the interests of the Indigenous group. The second is a variety of co-management or joint management boards, with members appointed by the federal and territorial governments and Indigenous organizations. These management boards have jurisdiction over, among other things, wildlife harvesting and industrial land use. The analysis that follows focuses on the land/capital-holding organizations created by modern treaties. In our assessment of modern treaties, we draw upon two case studies. The community of Fort Good Hope is a Dene ( Kaschogotine ) community on the Mackenzie River faced with a new version of the Mackenzie Valley Pipeline, now called the Mackenzie Gas Project. The Fort Good Hope Dene were one of five community signatories to a regional agreement called the Sahtu Treaty more than 15 years ago, which gave them financial resources to manage autonomously and set up a variety of joint management boards that gave them a role in decisionmaking. The Inuit of Baker Lake were included in the Nunavut Land Claims Agreement (NLCA). Like the Sahtu Treaty, this agreement also provided financial resources and mineral rights for some lands to newly formed Aboriginal organizations and established various co-management boards. Connected to the NLCA was the Nunavut Act, which provided for the creation of the territory of Nunavut, based on the premise that Inuit would achieve some degree of self-government through their demographic majority in the new territory. Baker Lake is now faced with the prospect of major uranium mine developments in addition to the significant development of other minerals in the area. Both communities are remote and small, and have successfully fought battles against extractive capital in the past. Our analysis is rooted in an examination of the material basis or polit- ical economy of northern extraction, as well as a contextual account of the recent history of comprehensive land claims or modern treaties in Canada. This analysis of modern treaties focuses on the Aboriginal organizations that were created through the treaties, these organizations’ actions, their structures, and their relationships with the communities they are intended to represent. We examine why the modern treaty process was selected to

6 Studies in Political Economy resolve Indigenous concerns and grievances. We then turn to each of the two case studies to explore how these historical experiences can inform contemporary assessments of the ultimate value of the comprehensive land claims approach. Due to the political economy of modern treaties and the spatial dynamics of capital accumulation, we argue that land claims corpo- rations are poorly positioned to represent the interests of Indigenous hunters. Grassroots Indigenous activism, operating outside of land claims structures and institutions, is thus necessary if Indigenous subsistence practices and local food production systems are to be maintained. Mining, Primitive Accumulation, and Modern Treaties As northern Indigenous peoples remain connected to a hunting way of life (or mode of production), resource extraction projects can have the impact, at one extreme, of destroying the basis of the hunting economy entirely. Destruction of and disturbance to wildlife habitat, as well as the threat of contamination, have the ability to undermine the resources upon which hunters depend; the best that can be hoped is that development/destruction will have a negligible environmental footprint. Of course, much of what actually happens takes place in the middle ground between these two extremes. Capitalist resource extraction projects of this kind can be seen as an instance of the larger historical process that Marx aptly called “primitive accumulation,” though the scope and scale of the displacement of pre- existing modes of production may vary. For Marx, primitive accumulation is a series of “moments when great masses of men are suddenly and forcibly torn from their means of subsistence, and hurled onto the labour-market as free, unprotected and right-less proletarians.” 1 Primitive accumulation therefore creates the preconditions for capitalist accumulation: contact between one group of people who own the means of production and another group of people who have no choice but to sell their bodily capabilities in order to survive. Marx argues that primitive accumulation “assumes different aspects” and occurs at different times in different places. 2 Recently, scholars have drawn renewed attention to the fact that primitive accumulation is an ongoing phenomenon, with dispossession and the destruction of subsistence lifestyles

Kulchyski and Bernauer / T R E AT I E S 7 forming a fundamental aspect of recent waves of capitalist imperialism. 3 Further, it is important to note that primitive accumulation in a particular society is generally not an instantaneous process, but rather unfolds over “many generations” and involves numerous “intermediate steps.” 4 In Canada’s Indigenous North, primitive accumulation is an ongoing and colonial process. Some of the more prominent “moments” in the process thus far have involved the coerced centralization of Indigenous communi- ties, which created a dependency on manufactured transportation technology; the forced schooling of Indigenous children, which destroyed a great deal of the living knowledge upon which subsistence production depends; the expropriation of hunting grounds and the imposition of colonial game laws in the name of conservation; and the destruction by animal rights activists of markets for Indigenous simple commodity production of furs. 5 The destruction of land and wildlife brought about by mineral and energy extrac- tion—what Usher rightly called a “modern version of the enclosures”— represents yet another moment in this ongoing process. 6 The North, however, lacked the capacity for secondary production or subcontracting, a skilled labour force, and an institutional framework to collect full royalties and taxes from extractive projects. As a result, resources, profits, royalties, contracts, and technical job opportunities tended to flow elsewhere. 7 In the 1970s, Indigenous people and non-Indigenous allies were becoming increasingly concerned that the combined destruction of hunting economies and lack of retention of economic spinoffs would leave Northern Indigenous peoples “effectively separated from their traditional land base...and incorporated into the lowest levels of the national class structure.” 8 In other words, these authors saw primitive accumulation in the North as a form of capitalist imperialism: a process whereby “the wealth and wellbeing of partic- ular territories are augmented at the expense of others.” 9 From the perspective of many Indigenous peoples and non-Indigenous allies, modern treaties were to be a mechanism to mitigate the impacts of capitalist imperialism. While specific proposals varied, common themes existed. Most suggested that a treaty should provide Indigenous peoples with control over their land, their resources, and their society. Many allies suggested that Indigenous groups should be allowed to collect royalties from resource

8 Studies in Political Economy extraction, 10 which could then be used to “modernize” the hunting economy by utilizing technology to harvest wildlife resources that were, at the time, going unused. Indigenous peoples were to retain harvesting rights and be provided with mechanisms to control the pace and type of development on their territory. If these conditions were met, it was presumed, Indigenous peoples would be able to sustain their hunting economies, supported by capitalist extraction, in what some authors called a “mixed economy.” 11 The issue of modern treaties rose to national prominence with the contro- versy surrounding the proposed Mackenzie Valley Pipeline in Denendeh. “Northern Frontier, Northern Homeland” was the appropriately titled, two- volume government report under the authorship of Thomas Berger, a former British Columbia justice, who had argued the famous Calder case regarding Aboriginal title at the Supreme Court of Canada. The partial victory in that case is what led the federal government to restart treaty negotiations. The report had been commissioned by a reluctant federal minority government to review the social and environmental impacts of the proposed pipeline, an Imperial Oil-sponsored mega project to access oil and gas reserves in the Beaufort Sea through a pipeline built down the Mackenzie Valley. The hearings Berger eventually held in the mid-1970s in the small Dene commu- nities of the Western Arctic became something of a public sensation, and his report became the first government document in Canada that was a best seller. Berger recommended a 10-year moratorium on pipeline development in order to allow Dene communities time to prepare for it so as to maximize whatever local benefits they could derive from the project. He suggested that 10 years would be sufficient time to settle land claims, which would then help the local Dene develop the capacity, and put in place the struc- tures, to allow them to negotiate more effectively. 12 At present, the majority of Indigenous peoples in the territorial North have settled modern treaties with the State. The Political Economy of Modern Treaties in Canada’s Indigenous North Modern treaties have received substantial criticism from Indigenous peoples and scholars. One of the more prominent criticisms is levied at the “extinguishment clause”—a clause included in many modern treaties that

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