SpruceRoots Magazine - September, 1998
Why the "Interest~based" Model is not Suitable for Negotiations About Aboriginal Rights
by Jack Woodward
Negotiations concerning Aboriginal rights fail when the parties start with the assumption that the process is about measuring, purchasing and thereby extinguishing the special constitutional rights of Aboriginal people. It is argued in this [paper] that greater certainty and fairness can be achieved if the parties start with the idea that entrenched Aboriginal rights are here to stay, and that treaties are vehicles for understanding, respecting and accommodating those rights. Previous failures of the interest based approach will be reviewed.
One of the most pervasive ideas about dispute resolution to emerge in recent years is the interest based approach to negotiations advocated by the Harvard Negotiation Project book Getting to Yes,171 first published in 1981, the book has been a runaway bestseller, universally acclaimed as a clear guide for those who wish to negotiate solutions to complex problems: "More than two million copies in print in eighteen languages."172 Several propositions about the best way to approach a negotiation are advanced according to the Harvard Negotiation Project's guidelines:
- · negotiate about interests, not about positions;
- · separate the people from the problem;
- · search for objective criteria.
There has been very little criticism of the method proposed. It seems to be widely accepted that the Harvard theory, like the theory of gravity, was a hidden truth we always knew, but only needed to have revealed. It is presumed by the authors that once you have read Getting to Yes, all other approaches to a negotiation seem primitive, ill informed, inefficient, unprincipled and likely to be in bad faith. Getting to Yes is a manual for both sides of every dispute, because, as the title implies, it is a method which outlines the shortest route for both sides to any negotiation to get what they want. How could anyone complain about that?
It may have seemed natural, therefore, that many of the negotiators involved in the B.C. Treaty process have embraced Getting to Yes as the solid common ground on which a successful negotiation can be built. I know of one instance where a government negotiator, at his informal first meeting with the Aboriginal negotiating team, actually handed out copies of Getting to Yes as a friendly way of letting the other side know what his approach to the talks would be. No doubt he also expected that if the Aboriginal negotiators read the book they too would share his enthusiasm for this approach to the historic project they were mutually about to undertake.
However, it is my view that there is a darker side to this: that to adopt the Harvard model in fact, puts Aboriginal people at a distinct disadvantage in these negotiations, and that Aboriginal people are not served by adopting the Harvard model.
The first aspect of the Harvard model to scrutinize is the assumption that all parties come to the negotiating table to talk about their interests. Under the Harvard model, parties who come to the table to talk about their "positions" are missing the point. What they should try to do is to "look behind" their positions to discover their "interests." "For a wise solution," we are told, "reconcile interests, not positions."l73 The Harvard model is about "enlightened self-interest."174
The difference between interests and positions is that interests, unlike positions (or principles), are suitable material for deal-making. Interests can be traded, sold, modified, measured, reasoned about, extinguished and ultimately resolved. Positions and principles are inherently non-negotiable, making "Yes" more difficult to achieve. In a market driven economy it is clear that the Harvard model is ideal. The market can only achieve its legendary efficiency when the impediments to deal making are minimized. Positions and principles are such impediments, interfering with efficiency. The sooner they are replaced by interests, the sooner the parties can reach a deal. This is because: "Interests motivate people; they are the silent movers behind the hubbub of positions."175 One recognizes the echo of Adam Smith: "The individual is led by an invisible hand to promote his [sic] own interest."176
Adam Smith would be amazed, were he alive today, to see the extent to which the world has come into the grip of one universal ideology - the ideology of corporatism - marching across all international and cultural boundaries under the banner of the free market. The corporatists measure everything (because it is a pervasive ideology) in terms of the market. Canadian philosopher John Ralston Saul says that the market theorists have an "inability to see the human as anything more than interest driven."l77
The question is: Are the Aboriginal rights which are the subject of treaty negotiations "interests?" In my view they are not, though it is true that one judge has referred to Aboriginal rights as interests:
- Aboriginal interest -- this is a term I shall use in a neutral, descriptive sense, to describe any unspecified aboriginal right. I do not believe there is any aboriginal interest additional or different from the other "interests" I have defined.178
Other than this statement in Chief Justice McEachern's famous decision, I have seen no other statement by any judge in our British/American/Canadian legal system that refers to Aboriginal rights as "interests." McEachern was not upheld on this point by any of the five judges of the Court of Appeal who reviewed this decision.l79
Aboriginal rights are, obviously, "rights." Rights are laws, not a form of property. Like the right to free speech and the right of free assembly, Aboriginal rights are the kind of laws which are of a higher order, and normally cannot be eroded or extinguished. We never fix a price or value on rights - they are said to be priceless. Rights are said to be "inalienable"180 and "fundamental."181 Aboriginal rights in Canada are constitutionalized and form part of the supreme law of Canada.182 It is not clear that Aboriginal rights can be extinguished, modified or diminished, even by treaty, except by formal constitutional amendment. This very special kind of law, these rights, are the subject of the treaty process which is presently underway in British Columbia.
What are Aboriginal rights? Aboriginal rights are sui generis or "unique" within our legal system.183 They do not derive from grant or statute or from English common law. Aboriginal rights are the continuation, within the Canadian legal system, of the laws and customs of the indigenous people. Our law is the same as the law of Australia in this regard:
- . . . the common law of Australia recognizes a form of native title which, in the cases where it has not been extinguished, reflect the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands.184
It is very difficult to define these rights. The Supreme Court of Canada has said that to understand what Aboriginal rights are, it is necessary to listen carefully to what the Aboriginal people themselves have to say:
- While it is impossible to give an easy definition to Aboriginal rights, it is possible, and indeed, crucial, to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake.185
Aboriginal rights are designed as an attack on the status quo. The purpose of Section 35 of the Constitution Act, 1982, is to legitimize certain challenges to federal and provincial power. "Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected."186
Furthermore, something beyond a mere reconciliation of interests, is involved in any dealings with Aboriginal rights. In R. v. Sparrow the Supreme Court of Canada said "The honour of the Crown is at stake in dealings with aboriginal peoples."187
One of the fundamental points to make about Aboriginal rights is that they are not alienable except by surrender to the Crown, and that they "disappear" in the process of such release. They cannot be transferred to a grantee, whether to an individual or to the Crown.188 In other words, you cannot buy, sell or trade an Aboriginal right. All that can happen is that the right can disappear if the Aboriginal nation decides to give it up.
The idea that Aboriginal land is a subject of commerce was expressly rejected by the Royal Proclamation of 1763 - the beginning of a legal tradition that continues to this day.l89 Therefore, a model which presupposes that the treaty table is a kind of marketplace, where the parties spread out their goods and proceed to trade them, is probably not suitable. Many First Nations have no intention of trading or selling their rights - at any price!
Perhaps the most disastrous example of the interest-based model of Aboriginal rights was the Alaska experience, under which Aboriginal rights were extinguished in return for shares in corporations. In his analysis of the Alaska experiment, Tom Berger makes this comment :
- This philosophy of assimilation, which led the federal government to reject tribal government, the Native Economy, and Native cultures, constitutes the ideological foundation of ANCSA. Tribal governments in Alaska do not hold title to ancestral lands, which have been deeded to private corporations composed of individual shareholders. Although at present individual shares are restricted when restrictions are lifted, the shares will certainly be sold and the land lost.190
We also have an extreme Canadian example of the failure of attempting to force an Aboriginal society into a social and legal mould drawn from the dominant culture, namely, the case of Metis scrip. Scrip was a certificate allowing a Metis person to choose land. But most of the scrip was sold, the lands became otherwise alienated, and the Metis exist as a distinct people in a diaspora everywhere except their homeland in Manitoba.
This conference, entitled Making Peace and Sharing Power is about the method of reconciliation. In my view the method cannot be separated from the content. The content of negotiations with Aboriginal peoples is the extent to which the dominant culture will respect the rights of Aboriginal people. In that context, a discussion of "interests" is out of place. As the Supreme Court of Canada has indicated, the process of recognition of rights involved challenge to entrenched expectations, especially the expectations of the provincial governments. Respect for Aboriginal rights means the sharing of power.
To conclude, I hope that I have begun a discussion on the danger for Aboriginal people to buy into the language of "interests" as they embark on the treaty process. I also hope that this discussion will spill over into all the special laws which we identify as "rights." The rights enshrined in our Constitution did not arrive there by accident. They were earned and won in noble struggles in which our ancestors, both Aboriginal and non-Aboriginal, fought for what was right, not necessarily what was in their interest. Rights are a precious sort of law, deserving of a special place in our thinking. It would be wrong to debase them to the status of mere interests.
171 Roger Fisher and William Ury, with Bruce Paton, Getting to Yes: Negotiating Agreement Without Giving In. 2nd ed (New York: Penguin Books, 1991)
172 Fisher and Ury, Getting to Yes, back cover
173 Fisher and Ury, see note 171 at page 40
174 Fisher and Ury, Getting to Yes
175 Fisher and Ury, Getting to Yes
176 Adam Smith, The Wealth of Nations (1776), book IV, ch. 2
177 John Ralston Saul, The Unconcious Civilization: The CBC 1995 Massey Lectures (Toronto: Anansi Press, 1995) 84
178 McEachern, C.J.B.C., in Delgamuukw v. British Columbia  3 W.W.R. 97, 79 D.L.R. (4th)185 (B.C.S.C.).
179 Delgamuukw v. British Columbia  5 WWR 97 (B.C.C.A.)
180 U.S. Declaration of Independance (1776).
181 United Nations Carter (Preamble) (1945)
182 Constitution Act, 1982, s. 52
183 Dickson, J. in Guerin v. The Queen,  2 SCR 335; 55 NR 161; 13 DLR (4th) 321 at 382
184 Chief Justice Mason and McHugh, j., in Mabo v. The State of Queensland (1992), 107 A.LR. 1 (H.C.A.), page 7
185 R. v. Sparow,  1 SCR 1075 at 1112
186 R. v. Sparow,  1 SCR 1075,  3 C.N.L.R. 160, 46 B.C.L.R. (sd) 1, at 27 B.C.L.R.
187 R. v. Sparow, see note 185 at page 30 (BCLR)
188 Guerin v. R.,  6 W.W.R. 491 (S.C.C.) at page 498
189 Because they are inalienable except upon surrender, Aboriginal rights to land cannot be treated like interests which are registrable for the sake of commercial convenience. Uukw v. B.C.  1 C.n.L.R. 173 (B.C.C.A.)
190 Thomas Berger, Village Journey, The Report of the Alaska Native Review Commission (New York: Hill & Wang, 1985), 126