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

• Main Author: Ginn, Diana
• Format: Text
• Language: unknown
• Published: Schulich Law Scholars 2016
• Subjects: Land Claim Settlements; Canada; Arctic; Aboriginal Title; Indigenous; Indian; and Aboriginal Law; Law; Property Law and Real Estate; Public Law and Legal Theory
• 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

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.