Land Claim Settlement in Canadian Arctic: Pragmatism and Instrumentalism at Work

In Canada, comprehensive land claims based on Aboriginal title can be pursued through either litigation or negotiation. Generally, the relationship between litigation and negotiation of these claims is understood as one where the Supreme Court of Canada initially prodded the Canadian state to action...

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Bibliographic Details
Main Author: Ginn, Diana
Format: Text
Language:unknown
Published: Schulich Law Scholars 2016
Subjects:
Law
Online Access:https://digitalcommons.schulichlaw.dal.ca/scholarly_works/1981
https://digitalcommons.schulichlaw.dal.ca/context/scholarly_works/article/2956/viewcontent/Ginn_Land_Claims_Settlements.pdf
Description
Summary:In Canada, comprehensive land claims based on Aboriginal title can be pursued through either litigation or negotiation. Generally, the relationship between litigation and negotiation of these claims is understood as one where the Supreme Court of Canada initially prodded the Canadian state to action, and then in a series of decisions developed the legal parameters within which the political realities of negotiation occur. Thus, settlement tends to follow and be shaped by the contours of the legal doctrine. However, settlement of land claims in Canada’s Arctic moved ahead of the case law in two key areas, as manifested in: (a) the negotiation of claims based on attenuated physical occupation of the lands in question; and (b) the application to waters and ice of principles developed in relation to terrestrial land. I argue below that this willingness to move beyond the precedents reflects both pragmatism and an instrumentalist approach to land claims in the Arctic.