When I was contacted in 2014 by the Gwich’in Tribal Council (GTC) to explore collaborative work with them, the stories I was told about the Gwich’in people and their land featured the following bold strokes. The Gwich’in are:
1. Signatories of one of the numbered treaties with Canada (Treaty 11, 1921);
2. Signatories of one of the early comprehensive land claims agreements (Gwich’in CLCA 1992), an agreement reached only after the Gwich’in delegation, lead by Robert A. Alexie, withdrew from an ‘umbrella’ Dene Nation bargaining team; and
3. Party to ongoing self-government negotiations.
I traveled to Inuvik in August 2014 to teach a youth leadership workshop. My trip had been delayed from July due to the recent death of the then GTC President, Robert Alexie. It was against this background that I decided to address the nature of negotiation at the first Gwich’in Academic Conference in St. John’s in March 2015. Negotiation is an ongoing formal reality for the Tribal Council and constitutes key elements of Gwich’in history. Negotiation also seemed to me an appropriate way of describing how everyday life was managed by Gwich’in people; that is, what stood out for me from my work with the youth was how everyday experience regularly raised matters for negotiation, including questions of identity, family relations, and membership in a political community (hence the problem of citizenship).
I argue here that the exercise of Indigenous power or self-determination requires negotiation and direct action (i.e., protests, blockades, and other grassroots actions by people on the ground). While such a claim might seem straightforward, it counters the quite strong opinions of some that strive to distinguish and oppose the two strategies. Negotiating, I will argue, like conferring and consulting, is not “just talking.” Negotiation is a performance that is only partly accomplished in words. Negotiation is found in the highest orders of political life: relations between nations. Negotiation is also at the heart of the most antagonistic, but regulated, economic disputes: collective bargaining between employers and trade union representatives. In fact, negotiation makes up much of everyday social life with regard to the formation and management of identity, family, and community. Negotiation and direct action are not opposites. Good negotiation requires direct action and vice versa. These claims relate as much to the art of steering states as they do to dealing with everyday life obstacles.1
A. Conversation or Negotiation?
The positive side of negotiation, from an Indigenous point of view, is that the negotiation of treaties forms the basis of relations between nations. The negative side includes the failure of governments to keep and respect treaties and comprehensive land claims agreements, as well as the ‘fixed’ character of the negotiation process (Macklem, 266f). Litigation is a distinct strategy from negotiation of agreements though the two are often intertwined. How direct action fits into the political picture is murkier and some have opposed it to the spirit of negotiation. It is this false opposition between negotiation and direct action that I wish to contest.
Worries about negotiation have various sources and are found in any representational political system (“are our negotiators representing us or not?”). Anxiety regarding political corruption is constant and widespread, often for good reason, and this is as true of Indigenous as it is of non-Indigenous communities. Trust in political representatives is itself a product of negotiation, with formal and informal elements — crucially, clear and timely communication regarding desires and potential agreements, and transparent ratification procedures by members.
If you do not have a seat at the negotiating table, you may thus have good reason to be sceptical about negotiations, to consider them as “just talking” with little relation to people on the ground. The experience of formal negotiation suggests a different picture of the process itself and the link between representatives and members. I draw here on my experience as a formal negotiator during the privileged time in which I served as President and Chief Negotiator of the Canadian Union of Educational Workers Local 2 in the early 1990’s, years that spanned two new collective agreements and two strikes.2 The lessons from those negotiations and strikes are many, but this is key: Collective bargaining works as a function of the power of the workers’ strike. Negotiators have no power without the power of the grassroots members walking the picket lines and refusing work. Collective bargaining regulations structure the process of negotiation primarily by timing, setting the time of talks in relation to the votes and strike actions of the members.3
The “just talking” view of negotiation is supported by many scholarly accounts of political processes. James Tully, for example, in his highly regarded Strange Multiplicity: Constitutionalism in an age of diversity, presents a compelling account of political constitutions as living forms of activity. His description of such constitutional forms of activity highlights negotiation but only by equating it with dialogue: A constitution is “an intercultural dialogue in which the culturally diverse sovereign citizens of contemporary societies negotiate agreements on their forms of association over time…”4 The impression here is that negotiation is not an everyday activity, but a highly specialized, symbolic one, something like a philosophical conversation. I hold a contrary view: Negotiation is a movement and transaction of bodies and positions, in which talk is a significant, but dependent, element.5
Negotiation is advocated by strong Indigenous voices in the scholarly literature, for example, Dale Turner and John Borrows. While neither author is unaware of the limitations of negotiation or the broader historical events in which negotiations have occurred, both promote negotiation as the strategy for the future. Turner points out that
What is remarkable … is that although the freedom of Indigenous peoples was severely curtailed, the Crown never fully extinguished Aboriginal peoples’ special status in Canadian legal and political practices. The treaties de facto affirmed the special relationship, despite the government’s unilateral assertions of sovereignty over Indigenous peoples’ territories. Indians were under the protection of the state, which created a distinctive political status for Indians, while affirming in practice that they were legitimate political entities worthy of negotiating treaties (162).
For Turner, and others, the highest value in the precedent of historical negotiations is the nation status of Indigenous societies as negotiators with the Crown. Borrows agrees with Turner and points to the work that remains to be done: “Working out the fuller implications of treaties between Indigenous peoples and the Crown is a way out of the impasse. … Treaties have the potential to build Canada on more solid ground” (20).
Both the above statements may seem an overly “friendly” view of Canadian-Indigenous relations — especially taken out of context as I have done. But neither author conceives negotiation as anything but a risky endeavour, fraught with power imbalances. Are others right that direct action is a better, separate option?
• Negotiation with Canada shows nation status.
• Negotiation is not the same as conversation or dialogue.
• Collective bargaining models link negotiation with direct action.
B. Negotiation or Direct Action?
For a critical, even dismissive, approach to negotiation, consider the recent compelling book by Glen Sean Coulthard, Red Skins, White Masks: Rejecting the colonial politics of recognition.6 Coulthard argues for direct action and a “pre-figurative” form of Indigenous politics. Such a politics is opposed to the poli-tics of recognition and negotiation:
[T]he resurgent approach to recognition … explicitly eschews the instrumental rationality central to the liberal politics of recognition and instead demands that we enact or practice our political commitments to Indigenous national and women’s liberation in the cultural form and content of our struggle itself. Indigenous resurgence is at its core a prefigurative politics — the methods of decolonization prefigure its aims’ (159).
On Coulthard’s analysis, direct action is distinct from negotiation. Negotiation is authorized by the Canadian state:
With respect to those approaches deemed “legitimate” in defending our rights, emphasis is usually placed on formal “negotiations” — usually carried out between “official” Aboriginal leadership and representatives of the state — and if need be coupled with largely symbolic acts of peaceful, nondisruptive protests that abide by Canada’s “rule of law”(166).
While negotiation is authorized, direct action is frowned upon and increasingly criminalized. Coulthard notes that blockades and similar actions are now less tolerated than in the past. (Discussion of such issues at the March conference circled around the difference that Bill C-51 might introduce to an already blockade-wary Canadian public.)
In contrast to direct action, as Coulthard conceives it, there is the “official” game of state representatives, a game formed by negotiation and other “largely symbolic acts.” The tactics of direct action include temporary blockades of access to Indigenous territories as well as reclamation sites. Coulthard acknowledges such acts may aim at state recognition, yet they qualify as direct action for three reasons. They:
1. “… are directly undertaken by the subjects of colonial oppression themselves and seek to produce an immediate power effect…”;
2. show a partial liberation from internalized colonialism; and
3. “… are prefigurative in … that they build the skills and social relationships (including those with the land) that are required … to construct alternatives to the colonial relationship in the long run” (166).
Coulthard’s description of direct action is a fine one. My difficulty is that I find negotiation, when it is done well, includes each of the three key elements of direct action. Coulthard ends his account by noting that negotiations have always been shadowed by direct action, or, in his words, all negotiations concerning Aboriginal rights in the past four decades “have piggybacked off the assertive direct actions — including the escalated use of blockades — spearheaded by Indigenous women and other grassroots elements of our communities” (167). “Piggybacking” implies something unfair or at least unacknowledged. Good negotiation, however, is clear about its need for direct action on the ground (and hence some trust between members and representatives, at least for a short while).
Opposing negotiation to direct action is false and misleading; they are not an exclusive, either/or choice. Collective bargaining with the right to strike shows how negotiation and direct action may work hand-in-glove. The right to blockade protected in Canadian labour law offers a model for an Indigenous right to blockade.
The highest success in negotiation changes the rules of the negotiating game itself. Given the usual predominance of bargaining power on the Canadian government side of negotiations with Indigenous peoples, game-changing negotiations are exactly what are needed. To summarize:
• Good negotiations are built on bargaining power and direct action.
• Collective bargaining and the right to strike show the effective coupling of negotiation and direct action.
• Good negotiations may change the rules of the negotiating game.
C. Direct Action and Negotiating Power
Negotiation is badly conceived if it is thought of as primarily talk, manipulation of symbols, or something similar. The four senses of “negotiate” from The Concise Oxford Dictionary of Current English provide a good anchor here:
A) Confer (with another) with view to compromise or agreement.
B) Arrange (affair), bring about (desired object) …
C) Transfer (bill) to another for a consideration …
D) Clear, get over, dispose of, (fence, obstacle, difficulty) (807).
Each of the four parts of the definition contributes to the whole. A negotiation is more a conference than a dialogue or a conversation. A conference, like a consultation, is a conversation plus one or more specific actions. A conference, like the Gwich’in Conference at Memorial, derives its meaning from the action verb “to confer,” which means “to counsel,” a special form of conversation, one between collaborators seeking authoritative direction. The other meaning (sense or direction) of the verb “to confer” is to bestow a gift or power.
While compromise may be one result of negotiation, agreement is a separate outcome. One can agree without compromising and even — as many of the land claims and self-government agreements in Canada and elsewhere do — agree to disagree about certain fundamental matters (e.g., the nature of Aboriginal title). Negotiation is an activity of arranging or bringing about desired objects. As such, negotiation appears to apply to any and all human activities, from the most formal to the most everyday, especially in domestic or family life. Consider the various forms of family and social life that, when in crisis, are managed by mediation, legislation, settlement conferences, and negotiation; child custody, divorce, and illness are but the most intense examples here. Consider how negotiating identity and membership in political communities is a basic, everyday feature of contemporary Aboriginal life in Canada.
Finally, negotiation circles around a movement of transfer between parties, and is motivated by an obstacle to be overcome. Blockades are thus built into the definition of negotiation as part of the logic of the activity.7
To pretend that negotiation is a free dialogue among formal equals should fool nobody. How bargaining power is amassed is a question of organization, mobilization, direct action, litigation, previous negotiation, and many other things. Negotiation is pointless without bargaining power, and bargaining power is essentially direct action, or its legitimate threat. In collective bargaining, the power of the workers lies in the right to strike, which includes the right to walk picket lines to blockade access to the work facility. Furthermore, workers’ power lies not only in the formal right to strike and blockade, but in the actual numbers of bodies refusing work and making the picket lines long and strong.
Negotiation strategy includes direct action tactics. Direct action strategies include negotiation tactics. For best effect, everything must be done, from all sides, at the same time. The demands of negotiating well — with power, against power — are thus severe, taxing, and risky. It is best to keep the most intense negotiations to a minimum as much as possible, but when necessary, to intensify negotiations — at home, at work, and in the nation and between nations — as much as possible, on the ground and at the table. The hope and promise of ongoing negotiations is that you are more and more able to make the rules of the game fit your desires. ◉
Peter Trnka is Associate Professor of Philosophy at Memorial University.
Borrows, J. (2010). Canada’s Indigenous constitution. Toronto: University of Toronto Press.
Coulthard, G. S. (2014). Red skins, white masks: Rejecting the colonial politics of recognition. Minnesota: University of Minnesota Press.
Fowler, H.G. & Fowler, F.G. (1964). The concise Oxford dictionary of current English. Oxford: Clarendon Press.
Macklem, P. (2001). Indigenous difference and the Constitution of Canada. Toronto: University of Toronto Press.
Pachman, L. (1972). Modern Chess Tactics. London: Routledge & Kegan Paul.
Soifer, A. (1995). Law and the company we keep. Cambridge: Harvard University Press.
Tully, J. (1995). Strange multiplicity: Constitutionalism in an age of diversity. Cambridge: Cambridge University Press.
Turner, D. (2013). White and red paper liberalism. In S. Tomsons & L. Mayer (Eds.), Philosophy and Aboriginal rights: Critical dialogues. Oxford: Oxford University Press.
- I wish to thank the Gwich’in Tribal Council and the Gwich’in youth, political leaders and Elders with whom I have had the pleasure to work; specifically, thanks to James Wilson and Norman Snowshoe, President and Vice-President of the Council, for their support and participation in the Aboriginal Citizenship Conference at St. John’s in March 2015, and to Patrick Tomlinson for the initial opportunity; Patrick studied philosophy and chess with me when we first met: Chess is fundamentally about strategy (“what ought we to undertake?”) and tactics (“how ought we to execute it?”)(Pachman vii). ↩
- CUEW no longer exists, having amalgamated with CUPE; my history of negotiations with the University of Toronto administration may be summarized by the fact that each negotiation was punctuated by a strike: confer — walk/block — confer; this is not a guarantee for success, however, and in my view the first CUEW Local 2 strike was a success, and the second a near failure. ↩
- Could such a model be applied to land claims and self-government agreements? For the claim that Indigenous peoples form the best case for an argument for the right to freedom of association — the right underlying trade unions — see Aviam Soifer (542). ↩
- Tully continues “… in accord with the three conventions of mutual recognition, consent, and cultural continuity” (30); the critical discussion of Tully’s work focuses on the adequacy of these three conventions but my interest here is the more basic issue of the difference between negotiation and dialogue. ↩
- I do not mean that the conventions of speech at negotiations are insignificant, but only that they are one of many weapons in the negotiating arsenal; Tully gives the following principles from the 1763 Royal Proclamation: “negotiations take place in public, to minimize force and fraud, between representatives of the Crown and Aboriginal nations, thereby instantiating their mutual recognition as nations, and without pressure, so that the agreement will be uncoerced. The negotiations are inter-cultural. Each negotiator participates in his or her language, mode of speaking and listening, form of reaching agreement, and way of representing the people, or peoples, for whom they speak” (129). ↩
- Coulthard, a member of the Yellowknives Dene First Nation, recounts the story of the Gwich’in walkout from negotiations in 1990, in some detail (76). ↩
- Litigation is also built into the process; as Macklem argues, promoting negotiation in the absence of legislation “assumes a separation of law and politics that belies law’s distributive function. The law of Aboriginal title is intimately connected to the relative bargaining power of parties involved in negotiations” (77); Macklem goes on to argue that the constitutional obligation by government to negotiate in good faith is not being met in the current Canadian context (266-67). ↩