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Deeper than mere consultation : negotiating land and resource management in British Columbia, post-Delgamuukw Kennedy, Andrea Holly 2009

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DEEPER THAN MERE CONSULTATION: NEGOTIATING LAND AND RESOURCE MANAGEMENT IN BRITISH COLUMBIA, POST-DELGAMUUKW  by  Andrea Holly Kennedy  B.A.Sc., University of British Columbia, 1994 M.A.Sc., University of British Columbia, 1999  A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  DOCTOR OF PHILOSOPHY in The Faculty of Graduate Studies (Interdisciplinary Studies)  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  April 2009  © Andrea Holly Kennedy, 2009  Abstract  First Nations in Canada are seeking new land management relations that fully include and accommodate their Aboriginal rights, any outstanding Aboriginal title, and other interests. Various Canadian judicial decisions have stated that, at a minimum, consultation with First Nations is required when Aboriginal rights may be impacted by land-use activities. This research involved applying case study to identify critical elements that lead to something deeper than mere consultation, as called for in the 1997 Supreme Court of Canada Delgamuukw decision. This thesis describes six land management cases from four First Nations communities in British Columbia. The cases involve natural resources including fish, minerals, parks and energy and took place in the decade following the Delgamuukw decision. While the cases were some of the best examples of land-related negotiations from around the province, the cases highlight the distance that the Crown and non-Indigenous people need to go to achieve meaningful involvement of First Nations in land management.  Through the analysis of interviews, emergent themes were identified and developed into normative principles for meaningful negotiation with First Nations. The major themes identified in the cases included the recognition of Aboriginal rights, a commitment to building trust and relationships, power sharing, and a respect for cultural differences. These cases also demonstrated the need to carefully consider  ii  adequate resources, space, place and timing that are inclusive of the First Nations’ individual situations and perspectives. Moreover, the research shows that there is difficulty asserting and meeting ontological needs when basic needs such as employment, housing and social welfare are yet to be met within the community.  Fundamental principles that ought to be followed when embarking on landmanagement negotiations with Indigenous peoples in British Columbia, particularly First Nations with unresolved title issues include: recognizing rights and title, embarking on negotiation, enabling power rebalance, emphasizing strong relationships and trust, having respect for First Nations’ ontology, achieving meaningful accommodation, and ensuring community involvement and support. Ultimately, decision-making will involve compromises on both sides. In order for these compromises to be balanced between parties, the often unequal power and resources of the two parties will need to be redressed.  iii  Table of Contents Abstract .........................................................................................................................................ii Table of Contents.......................................................................................................................iv List of Tables............................................................................................................................... xi List of Figures ............................................................................................................................xii Glossary .................................................................................................................................... xiii Preface ..................................................................................................................................... xxiii Acknowledgements ...............................................................................................................xxvi Dedication ............................................................................................................................ xxviii Chapter 1.  Introduction ......................................................................................................... 1  1.1.  Research Objectives ............................................................................................. 1  1.2.  Research Context.................................................................................................. 2  1.3.  Research Timing................................................................................................... 5  1.4.  Interdisciplinary Research .................................................................................. 8  1.5.  A Note on Terms ................................................................................................ 10  Chapter 2. 2.1.  Historical and Cultural Context ..................................................................... 13 Colonization and Land Management ............................................................. 13  2.1.1.  Indigenous Peoples Occupation Since Time Immemorial ........................... 13  2.1.2.  Justifying Newcomer Land Title...................................................................... 19  2.1.3.  Colonization, Treaties, and Reserves in British Columbia........................... 24  2.1.4.  Impacts of Colonization on the Ability to Steward Land ............................ 29  2.1.5.  Land Under Treaty in British Columbia......................................................... 32  2.1.6.  Aboriginal Title .................................................................................................. 35  2.2.  Contemporary Requirement for Consultation .............................................. 39  2.2.1.  Consultation – Negotiating Without Treaties................................................ 42  2.2.2.  Delgamuukw Decision and Consultation......................................................... 43  2.3.  Related Judgments and Declarations .............................................................. 48  iv  2.3.1.  Calder Decision, 1973 and Guerin Decision, 1984........................................... 50  2.3.2.  Sparrow Decision, 1990 ...................................................................................... 51  2.3.3.  Van der Peet Decision, 1996 ............................................................................... 53  2.3.4.  Delgamuukw Decision, 1997 .............................................................................. 54  2.3.5.  Taku Decision, 2004 ............................................................................................ 57  2.3.6.  Haida Decision, 2004 .......................................................................................... 58 2.3.6.1.  Background .................................................................................................... 58  2.3.6.2.  The Decision ................................................................................................... 61  2.3.6.3.  Haida Land Use Agreement......................................................................... 63  2.3.7.  Marshall; Bernard Decision, 2005 ...................................................................... 64  2.3.8.  Dene Tha’ Decision, 2006 ................................................................................... 64  2.3.9.  Tsilhqot’in Decision, 2007................................................................................... 68  2.3.10.  Wii’litswx Decision, 2008 ................................................................................... 69  2.3.11.  United Nations - Rights of Indigenous Peoples ............................................ 70  2.4.  Land Management in British Columbia ......................................................... 72  2.4.1.  Jurisdictional Breakdown for Resource Management.................................. 72  2.4.2.  The New Relationship and Land Management in British Columbia ............ 78  2.4.3.  Land Use Planning in British Columbia ......................................................... 82 2.4.3.1.  Co-management Agreements ...................................................................... 84  2.5.  Existing Consultation Guidelines .................................................................... 85  2.6.  Ontological Difference....................................................................................... 89  2.6.1.  Traditional Knowledge ..................................................................................... 96  2.6.2.  Collaborating for Sustainable Stewardship ................................................... 99  Chapter 3.  Methods ............................................................................................................ 102  3.1.  Decolonizing My Methods ............................................................................. 102  3.2.  Honouring Indigenous Methods ................................................................... 104  3.3.  Ethical Considerations..................................................................................... 109  3.4.  Research Design ............................................................................................... 112  3.4.1.  Case Study......................................................................................................... 112  v  3.4.2.  Case Selection ................................................................................................... 115 3.4.2.1.  3.4.3.  Chapter 4. 4.1.  Forest and Range Opportunities Agreements ......................................... 121  Research Methods ............................................................................................ 123 3.4.3.1.  Entering Community and Participant Selection ..................................... 123  3.4.3.2.  Interviews ..................................................................................................... 126  3.4.3.3.  Transcription and Participant Review...................................................... 129  3.4.3.4.  Transcription Notation ............................................................................... 130  3.4.3.5.  Data Analysis ............................................................................................... 131  Nations, Cases, and Conversations.............................................................. 135 Cheam First Nation – Drift Net Fishing Case .............................................. 138  4.1.1.  Historical Context ............................................................................................ 138  4.1.2.  Contemporary Context.................................................................................... 139  4.1.3.  Cheam and the Salmon Fishery ..................................................................... 142  4.1.4.  Case Description - Drift Net Fishing ............................................................. 146  4.1.5.  4.1.4.1.  Research Participants .................................................................................. 151  4.1.4.2.  Relations with the DFO............................................................................... 152  4.1.4.3.  Missing Fish.................................................................................................. 157  4.1.4.4.  Relations with Other Fishing Sectors........................................................ 159  Developing the Drift Net Study..................................................................... 161 4.1.5.1.  4.1.6.  4.2.  Participation and Decision Making Fundamentals ................................ 166  Themes in the Cheam Case............................................................................. 168 4.1.6.1.  Motivation for Collaboration ..................................................................... 168  4.1.6.2.  Relationships and Respect.......................................................................... 170  4.1.6.3.  Aboriginal Rights and Responsibilities .................................................... 174  4.1.6.4.  Recognition of Sustainable Values ............................................................ 176  4.1.6.5.  Capacity Building Leading to More Independent Management .......... 177  Hupačasath First Nation ................................................................................. 178  4.2.1.  Historical and Political Context ..................................................................... 178  4.2.2.  Contemporary Situation ................................................................................. 179 4.2.2.1.  Land, Culture, and Values.......................................................................... 180  vi  4.2.3.  Case Description – Polaris Minerals.............................................................. 182 4.2.3.1.  4.2.4.  4.2.5. 4.3.  Research Participants .................................................................................. 186  Themes in the Hupačasath Case .................................................................... 187 4.2.4.1.  Recognition of Rights and Title ................................................................. 187  4.2.4.2.  Relationships ................................................................................................ 190  4.2.4.3.  Capacity Support ......................................................................................... 191  4.2.4.4.  Community Involvement ........................................................................... 191  4.2.4.5.  Environmental Concerns and Traditional Use........................................ 194  4.2.4.6.  Power and Inclusion.................................................................................... 197  4.2.4.7.  Partnership versus Governance................................................................. 198  Vancouver Island Generation Project Case.................................................. 199 ‘Namgis First Nation ....................................................................................... 200  4.3.1.  Brief Introduction to the Cases....................................................................... 200  4.3.2.  Historical and Political Context ..................................................................... 202  4.3.3.  Past Experience with Developers and Government ................................... 208  4.3.4.  ‘Namgis Research Participants ...................................................................... 210  4.3.5.  ‘Namgis Cases .................................................................................................. 212  4.3.6.  4.4. 4.4.1.  4.3.5.1.  Provincial Parks ........................................................................................... 212  4.3.5.2.  Orca Sand and Gravel ................................................................................. 216  4.3.5.3.  Kwagis Power Case ..................................................................................... 219  Themes in the ‘Namgis Cases ........................................................................ 224 4.3.6.1.  Gaining Management and Decision-making Power .............................. 224  4.3.6.2.  Respect for the Environment...................................................................... 226  4.3.6.3.  Building Nation Capacity........................................................................... 228  4.3.6.4.  Recognition of Rights .................................................................................. 229  4.3.6.5.  Respectful Relationships............................................................................. 230  4.3.6.6.  Partnership versus Governance................................................................. 231  4.3.6.7.  Community Involvement ........................................................................... 232  Soowahli First Nation and Stó:lō Tribal Council Case ............................... 233 Significance of Salmon .................................................................................... 236  vii  4.4.2.  Chapter 5.  Description of the Case – ‘Salmon Table’ MOU .......................................... 238 4.4.2.1.  Participants in the Case............................................................................... 241  4.4.2.2.  Case Fundamentals ..................................................................................... 243  4.4.2.3.  Finding Common Ground.......................................................................... 246  4.4.2.4.  Reciprocal Respect for Knowledge ........................................................... 248  Common Themes ............................................................................................ 249  5.1.  Common Elements of Positive Negotiation Cases...................................... 249  5.2.  Theme #1 - Recognition of Aboriginal Rights and Title............................. 251  5.2.1. 5.3.  Necessity on the part of the Non-Aboriginal Group .................................. 256 Theme #2 – Trust and Relationships............................................................. 257  5.3.1.  Approaching Communities ............................................................................ 259  5.3.2.  Shared Interests or Need on Both Sides........................................................ 262  5.4.  Theme #3 – Processes Deeper than Mere Consultation ............................. 264  5.4.1.  Negotiation versus Mere Consultation......................................................... 268  5.4.2.  Flexible Approach Founded on Basic Principles......................................... 270  5.5.  Theme #4 - Power Rebalance and Capacity Building ................................ 273  5.5.1.  Process Design – Developing Goals .............................................................. 275  5.5.2.  Consideration for Capacity............................................................................. 277  5.5.3.  Process Design - Adequate Timelines........................................................... 279  5.5.4.  Building Capacity and Recognition in Stages.............................................. 281  5.5.5.  Legitimating Knowledge ................................................................................ 283  5.6.  Theme #5 – Community Involvement and Support................................... 285  5.7.  Theme #6 – (Mis)understanding First Nations peoples’ Worldview....... 286  5.7.1.  Values and Ecological Sustainability ............................................................ 288  5.8.  Theme #7 – Respect for Traditional Knowledge ......................................... 291  5.9.  Theme #8 – Inclusion of Indigenous Governance....................................... 293  5.10.  Themes Given Less Emphasis ........................................................................ 295  5.10.1.  Missing Data not Missing At All ................................................................... 297  5.10.2.  Missing Data in Research Findings ............................................................... 298  viii  5.10.3.  Ontological Difference and Values................................................................ 302  5.10.4.  Compromise and Collaborative Expectations ............................................. 303  Chapter 6.  5.10.4.1.  Freedom to Contract.................................................................................. 305  5.10.4.2.  Working with the Current Political Reality ........................................... 309  5.10.4.3.  Growth of Expectations ............................................................................ 310  Making the Story Meaningful – Principles for Negotiation .................. 313  6.1.  Moving Towards Negotiation........................................................................ 313  6.2.  Principles for Meaningful Land Management in B.C................................. 316  6.2.1.  Practical Elements and Community Characteristics................................... 319  6.2.2.  Principle #1 - Recognize Aboriginal Rights and Title to Land.................. 321  6.2.3.  Principle #2 – Embark on Negotiation......................................................... 325  6.2.4.  6.2.3.1.  Include Mediation Processes...................................................................... 326  6.2.3.2.  Create Co-jurisdiction versus Co-management ...................................... 328  Principle #3 - Strive for Power Rebalance .................................................... 331 6.2.4.1.  Avoid Systemic Assimilation through Process ....................................... 334  6.2.4.2.  Enable Indigenous Governance................................................................. 337  6.2.4.3.  Recognize Different Stages of Capacity.................................................... 340  6.2.5.  Principle #4 – Emphasize Strong Relationships and Trust........................ 341  6.2.6.  Principle #5 – Respect First Nations Ontology, Values and Goals........... 342 6.2.6.1.  Respect Land, Spirit, and Intergenerational Values ............................... 349  6.2.7.  Principle #6 - Achieve Meaningful Accommodation ................................. 350  6.2.8.  Principle #7 – Ensure Community Involvement and Support.................. 354  6.2.9.  Comparison to Recent Consultation and Engagement Principles............ 355  6.2.10.  Non-Adherence to Principles ......................................................................... 364  Chapter 7.  Conclusion: Creating a Just and Sustainable Future ............................... 366  References................................................................................................................................. 373 Appendices............................................................................................................................... 393 Appendix A.  Sample Introduction Letter to Communities ....................................... 393  Appendix B.  Interview Script and Questions ............................................................. 398  Appendix C.  Behavioural Research Ethics Board (BREB) Approval....................... 403 ix  Appendix D.  ‘Namgis Research Protocol Agreement ................................................ 404  Appendix E.  Participant Profiles................................................................................... 410  Appendix F.  Topics and Themes Identified in Cases ................................................ 416  x  List of Tables Table 1. Keys for Building Strong Relationships................................................................ 261  xi  List of Figures Figure 1. Lillooet First Nation Women Drying Salmon, 1954 ............................................ 16 Figure 2. First B.C. Chiefs Conference, 1969 ......................................................................... 27 Figure 3. Carrier First Nation "Welcome Dance" circa 1930 ............................................... 30 Figure 4. Thomas Moore in Residential School Photos, 1874 ............................................. 31 Figure 5. Historic and Numbered Treaties in Canada......................................................... 33 Figure 6. Nation and Case Locations in British Columbia................................................ 119 Figure 7. First Nation Cultural Groups in British Columbia............................................ 137 Figure 8. First Nation People in the Harrison / Cheam Area, 1867 ................................ 139 Figure 9. Cheam Protestors.................................................................................................... 140 Figure 10. Mount Cheam in Pilalt Territory........................................................................ 141 Figure 11. Drift Net Fishing on the Fraser River ................................................................ 147 Figure 12. Unloading Drift Net in Cheam Territory .......................................................... 150 Figure 13. Location of Eagle Rock Quarry Site ................................................................... 184 Figure 14. Hupačasath Gathering House (Offices and Community Building).............. 192 Figure 15. Eagle Rock Quarry Site - View from the Water ............................................... 194 Figure 16. 'Namgis Traditional Territory ............................................................................ 203 Figure 17. Alert Bay circa 1914 .............................................................................................. 204 Figure 18. General View of Alert Bay circa 1900 ................................................................ 205 Figure 19. 'Namgis Parks Agreement Signing .................................................................... 213 Figure 20. Orca Sand and Gravel Site .................................................................................. 217 Figure 21. First Nation Gathering in Fraser Valley (Sardis) About Land Question...... 235 Figure 22. Spectrum of Conflict Handling Mechanisms ................................................... 326  xii  Glossary This brief glossary is intended to assist the reader with the various terms used in Canada when referring to Indigenous peoples, communities, and issues. A complete glossary is not within the scope of this work.  Aboriginal title Aboriginal title is a unique property right that stems from Indigenous peoples’ prior and long-term occupancy and use of the land before European colonization. Court decisions continue to further define Aboriginal title in Canada. A number of court decisions from the Supreme Court of Canada have also made references to Aboriginal title. These court decisions have made important distinctions between Aboriginal title and other forms of individual property ownership. The most important decision on Aboriginal title is the 1997 Delgamuukw decision from the Supreme Court of Canada. In that case, the Court said that: • • • • •  Aboriginal title is a communal right; Aboriginal title, like other types of Aboriginal rights, is protected under s.35 of the Constitution Act, 1982; Aboriginal title lands can only be surrendered to the federal Crown; Aboriginal title lands must not be put to a use which is irreconcilable with the nature of the group's attachment to the land; and, In order for the Crown to justify an infringement of Aboriginal title, it must demonstrate a compelling and substantive legislative objective, it must have consulted with the Aboriginal group prior to acting and, in some cases, compensation may be required (Indian and Northern Affairs 2007c, n.p.)  See Section 2.1.6 of this dissertation for a discussion of the term Aboriginal title as it is used in Canada.  Aboriginal Rights Aboriginal rights are those rights held communally by Indigenous people. In Canada, these rights are legally protected in Section 35 of the Constitution Act, 1982 and are often xiii  described in treaties. Historic treaties signed in some parts of Canada often refer to the right to hunt, fish, and trap in a Nation’s traditional territory. For example, in 1990 the Supreme Court of Canada concluded in the Sparrow decision that the Musqueam Indian Band had an existing Aboriginal right to fish. This is just one example of an Aboriginal right. So far, Canadian law has confirmed that Aboriginal rights: • •  • •  exist in law; may range from rights not intimately tied to a specific area of land, to sitespecific rights, to Aboriginal title, which is a right to exclusive use and occupancy of land; are site, fact and group-specific; and, are not absolute and may be justifiably infringed by the Crown (Indian and Northern Affairs 2007c, n.p.).  See Section 35 in this Glossary. Also see Rights.  Band The term Indian Band or simply Band has been used to describe a community or group of Indigenous peoples in Canada. Many bands have renamed their affiliations over the last twenty years due to the rise in the term First Nation (e.g., the Cheam First Nation). Yet a band still refers to “an organizational structure defined in the Indian Act which represents a particular group of Indians as defined under the Indian Act” (Assembly of First Nations n.d.). Canadian Federalism The Canadian federal system is seen as a “multinational” federalism, rather than a “territorial” regional-based federalism because Canada accommodates independently operating states with an otherwise minority population, with claims to unique nationhood (Quebec) (Kymlicka and Raviot 1997). Spain (with the Basque and Castellan nations) and Switzerland (with French, German and Italian nations) are also xiv  examples of multinational federalism (Kymlicka and Raviot 1997). A territorially-based federalism, such as the United States and Brazil, simply apportion regional powers based on resource/industry similarities and for efficiency in management, with the majority of the populace identifying with the dominant state ethnicity (Kymlicka and Raviot 1997). Kymlicka and Raviot argued that territorial federalist states, such as the United States, have even withheld statehood from regions until the minority population was outnumbered by the non-indigenous population (e.g., Hawaii) (1997).  First Nation(s) The term First Nation began to be used more commonly in the 1970s to replace the term Indian when referring to a group of Indigenous Canadians. Despite its widespread use, there is no legal definition for this term in Canada (Assembly of First Nations n.d.). Many Indigenous people prefer to be called First Nation or First Nations Peoples instead of Indians. The term is not synonymous with Aboriginal Peoples because First Nations do not include Inuit or Métis. Individual First Nations and bands choose which term they prefer to use to refer to their community or nation.  First Peoples First Peoples is a collective term used to describe the Indigenous peoples of Canada. This term is used somewhat less frequently than terms like Aboriginal Peoples and Native Peoples (National Aboriginal Health Organization 2003).  xv  Indian The term Indian is used by the federal government and others to collectively describe all the Indigenous People in Canada who are not Inuit or Métis. Indian Peoples are one of three peoples recognized as Aboriginal in the Constitution Act, 1982 along with Inuit and Métis. Three categories apply to Indians in Canada: Status Indians, Non-Status Indians and Treaty Indians. (Assembly of First Nations n.d.) The term Indian is considered outdated by many Canadian people and is used less and less frequently.  Indigenous An excerpt from the United Nations’ draft definition of the term Indigenous peoples reads: Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system. (United Nations 2004) The term is increasingly used Canada to describe Aboriginal people, organizations and groups, partly because of its international usage and also the collective nature that makes the term applicable to those groups that include First Nations and/or Indians, Inuit, and Métis). The term is commonly used internationally, particularly by the United Nations in its working groups (e.g., the Decade of the World's Indigenous People).  xvi  Métis The Constitution Act, 1982 recognizes Métis as one of the three Aboriginal Peoples in Canada. The word Métis is French for "mixed blood." Historically, the term Métis applied to the children of French fur traders and Cree women in the Prairies, of English and Scottish traders and Dene women in the north, and Inuit and British in Newfoundland and Labrador…. The term is also used broadly to describe people with mixed First Nations and European ancestry who identify themselves as Métis…. Métis organizations in Canada have differing criteria about who qualifies as a Métis person (National Aboriginal Health Organization 2003).  Native Native is an adjective similar in meaning to Aboriginal. “Native Peoples is a collective term to describe the descendants of the original peoples of North America” (Assembly of First Nations 2004). “The term is increasingly seen as outdated (particularly when used as a noun) and is starting to lose acceptance” (National Aboriginal Health Organization 2003).  Native American This term is used commonly in the United States to describe the descendants of the original peoples of North America. American Indian is the legal term used in the United States to describe Indigenous peoples. The term Native American is not used in Canada because of the apparent reference to U.S. citizenship. “Native North American has been  xvii  used to identify the original peoples of Canada and the United States” but is not a commonly used term (National Aboriginal Health Organization 2003).  Ontology The branch of philosophy that concerns what can be said to exist and co-exist. See Section 2.6 entitled Ontological Difference for more.  Other The term ‘the Other’, often capitalized, is used in social science to describe a minority, and unfavoured one, or simply something other than oneself. The Other was first used to in the former two manners in gender studies to refer to women, and then applied to the study of colonized people (e.g., referring to someone non-European or nonWestern). In recent writing, the Other has also been used to refer to the non-human world.  Potlach The term Potlatch is understood to be an anglicized version of an Indigenous language term whose origins are unclear. This term has been used in English to refer to feasting and gift-giving ceremonies of First Nations peoples in British Columbia. However, there are many different Indigenous languages that use different terms for these ceremonies. Umeek (E. Richard Atleo), in his book, Tsawalk, suggests that the term potlatch may have its origins in the Nuu-chah-nulth word (a verb) "pachitle" which means "to give" (2004, 3). He notes that there is no direct translation, but non-Aboriginal people have come to associate potlatch with ceremonial feasting and gift giving (2004).  xviii  Different terms are used by First Nations for coming of age ceremonies, memorials, marriages, and other occasions when a potlatch may be held (Anderson and Halpin 2000). Many North American Indigenous peoples have a similar cultural practice of gift giving and feasting, but use other terms. For instance, Liligit have feasts for the purposeful calling together of Chiefs and their House members in Gitxsan territory (Anderson and Halpin 2000).  Furthermore, in many languages, each ceremony has its own term. As Gitksan elder Joan Ryan explains, there are many different kinds of feasts: settlement feasts after funerals, totem or gravestone raising feasts, welcome feasts, smoke feasts, retirement feasts, divorce feasts, wedding feast, shame feasts, first game fests, birth feasts, cleansing feasts, coming of age feasts, graduation feasts…. (Anderson and Halpin 2000, ix) The term potlach is not used by the Gitksan (Anderson and Halpin 2000).  Reserve A reserve, or Indian reserve, is a term used in Canada for the land that was set aside by the Crown for the use and benefit of an Indian band or group of Aboriginal peoples. The Indian Act describes a reserve as lands which have been set apart for the use and benefit of a Band, and for which the legal title rests with the Crown in right of Canada. The federal government has primary jurisdiction over these lands and the people living on them. (Assembly of First Nations n.d.)  xix  Rights Two types of rights are generally described in theories of justice: those that are positive, describing what someone is due, or those that are negative, outlining a freedom or liberty that results from a right to noninterference (Van De Veer and Pierce 1998).  Section 35 (1), Constitution Act, 1982 Section 35 of the Constitution Act, 1982 relates to the rights of Aboriginal Peoples of Canada. It states:  35. (1) The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "Aboriginal peoples of Canada" includes Indian, Inuit and Metis peoples of Canada. (3) For greater certainty, in subsection (1), "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the Aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. 35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the "Constitution Act, 1867", to section 25 of this Act or to this Part, (a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and (b) the Prime Minister of Canada will invite representatives of the Aboriginal peoples of Canada to participate in discussions on that item.  xx  Section 35(1) is just one influence in the multi-player process of defining the relationship between Aboriginal peoples and the Canadian government. Section 35(1) plays out in Aboriginal and treaty rights claims litigation, legislation, and policy.  Stó:lō The Stó:lō people reside in the lower Fraser River valley area. Stó:lō is variously spelled Sto:lo, Stó:lō, and Stolo by Stó:lō members and organizations. The two major Stó:lō political entities are the Stó:lō Tribal Council and the Stó:lō Nation. See Section 4.4 for more on the Stó:lō case and political groups.  Traditional Ecological Knowledge The term Traditional Ecological Knowledge tends to be used more often in North America in favour of other common terms such as “local knowledge”, IPK (Indigenous peoples’ knowledge), local and Indigenous knowledge systems (LINKS) and traditional ecological knowledge and wisdom (TEKW). Except for TEKW, what these terms have in common is the focus on knowledge as information. A widely referenced definition of Traditional Ecological Knowledge used in Canada is Berkes’ definition, where Traditional Ecological Knowledge is a cumulative body of knowledge and beliefs, handed down through generations by cultural transmission, about the relationship of living beings (including humans) with one another and with their environment. Further, Traditional Ecological Knowledge is an attribute of societies with historical continuity in resource use practices; by and large, these are non-industrial or less technologically advanced societies, many of them indigenous or tribal. (Berkes 1993, 3) Unfortunately, the first portion of Berkes’ definition, around knowledge and beliefs, is often applied by Western scientists without rooting Traditional Ecological Knowledge xxi  in culture and spiritual traditions. Further, Berkes’ definition is purposefully general but omits critical aspects of Traditional Ecological Knowledge such as ontology (worldview) and continuous learning.  Tribal Council Many Tribal Councils were formed in Canada to co-ordinate administration and funds from the federal Department of Indian and Northern Affairs Canada (INAC). A tribal council is a group made up of several bands and represents the interests of those bands. A tribal council may administer funds or deliver common services to those bands. Membership in a tribal council tends to be organized around geographic, political, treaty, cultural, and/or linguistic lines. (Assembly of First Nations n.d.)  Worldview Clark defines worldviews as "beliefs and assumptions by which an individual makes sense of experiences that are hidden deep within the language and traditions of the surrounding society” (LeBaron 2003, n.p.). A worldview combines a person’s ontological beliefs about what is, with a set of cultural values about what is important to them.  xxii  Preface My life experiences, particularly my working career, have guided me towards this doctoral process. I have spent fifteen years working as an environmental engineer and resource planner in British Columbia, Canada, with stints abroad in Denmark, the United States, and Japan. I have led and been involved in numerous engagement and consultation processes with First Nations communities throughout British Columbia, and have been peripherally involved in projects impacting Indigenous peoples in South America and Africa. In these fifteen years, I have seen enough to know that something has to change.  Working with resource extraction projects related to mining, fishing, forestry, and energy, as well as working with First Nations communities made me realize the Western treatment of the Other 1 is often unjust or unsustainable. In my experience, even in cases where Euro-Canadians have fairly good intentions, the end result of both the consultation and development often ends up appearing socially unbalanced and ecologically unsustainable. And First Nation peoples are rarely included as cojurisdictional land stewards in development decision-making.  1  See Glossary for expanded discussion of the use of the phrase the Other.  xxiii  A review of Canadian legal case history shows First Nations’ title and rights to land as somehow subordinate to European settlers’ title and rights. I see in this some of the injustice that is created by a dominant culture in a privileged position of might and majority. I think of the Taku 2 judgment and wonder how any consultation can be meaningful if both parties are not required to come to some sort of agreement, particularly when the Taku River Tlingit have a strong case for land title and have not ceded their territory through war or treaty. I wonder how First Nations peoples will be able to protect their land and lifeways in the face of a majority dominant culture which gives itself the right to alter the landscape if it benefits that majority, as implied in the Delgamuukw judgment (Delgamuukw 1997, par. 204). These legal judgments form the foundation for the existing relationship between Crown governments, private corporations, and First Nations governments, with the power of final decision-making currently resting outside the hands of the First Nations.  My intention with this research is to make a positive contribution to the discourse in Canada on consultation requirements, and more specifically for these consultative processes to enable the just inclusion of First Nations, their community values, and worldviews. I hope to provide guidance for Canadians operating in the dominant culture and government system, guidance that will lead to fair treatment of Indigenous peoples and their lands. My intention is that this dissertation goes some of the way towards tying together the important themes about consultation that arose in my 2  See Section 2.3 for a summary of key legal case history related to consultation and accommodation.  xxiv  interviews. Ultimately my hope is that the time and energy put into this project by all the participants, myself and my colleagues, will provide a context for future efforts to achieve meaningful consultation, negotiation, and reconciliation as required by Canadian courts (Delgamuukw 1997; Haida 2004) and international declarations (United Nations 2007).  All my relations have also guided me to this doctoral process. I am a first generation Canadian on my mother’s side and a second generation Canadian on my father’s side. My family roots trace back to Denmark, England, Scotland, and Wales. I have a fair dose of ‘exploring settler’ in me. My grandfather, Eijler Marius Østergärd, arrived in British Columbia in the early 20th century, at a time when the colonial province of British Columbia (B.C.) was still very new and First Nations peoples outnumbered newcomers in most areas. My mother, Linda Edith Mollison, arrived in Canada in 1965 when, legally, things were beginning to change for Indigenous peoples in the country. And finally, from the James side of my father’s family, I have inherited a strong sense of connection with the Creator and a keen sense of social justice. I have a strong relationship with the land, one that is renewed through my precious time outdoors. I hope that this connection and conviction will guide me and this research to a good outcome.  xxv  Acknowledgements I have lived most of my life in Halkomelem (Coast Salish) Territory and I wish to acknowledge the traditional caretakers of this beautiful land. I hope that this work is of use to Halkomelem (Coast Salish) people, and other Indigenous Nations, in their efforts to steward their territories.  This project would be nothing without the time, thought and energy contributed by each research participant. I deeply appreciate the support that they gave to my research. I was also fortunate enough to be given a warm welcome by each of the communities I visited, and to be invited to interview a wide variety of community members, each with a range of experiences. I would like to thank all of those people who shared their stories with me.  I could not have engaged with communities and cases in the way that I did without the help of my friends, colleagues and contacts. Dr. Dawn Mills put me in touch with Ernie Crey; Ernie has been a thoughtful and informed supporter throughout the research process. Chief Bob Chamberlin of the Kwicksutaineuk-ah-kwa-ah-mish First Nation connected me with Chief Bill Cranmer, who facilitated the inclusion of all the ‘Namgis cases. Finally, my former colleague Trevor Jones, now Executive Director of the Hupačasath First Nation, provided me with immediate support and contacts for the Hupačasath cases. Thank you also to George Speck at ‘Namgis, and Sru-Ets-Lan-Ough  xxvi  (Chief Douglas) and Martha Fredette at Cheam for the introductions and co-ordination they provided that made this work possible.  I have been blessed with dynamic and supportive supervisors and committee members: Drs. Paul Wood, Nancy Mackin, Ron Trosper and Coll Thrush. Thank you also to Dr. Graham Smith who was an integral part of my committee until his return to Aotearoa (New Zealand) in 2007. My classroom studies have guided me through this process, particularly my early doctoral course work with Dr. Linc Kesler in Indigenous Research Methods and Dr. Piers Hale in Environmental Ethics. I would like to acknowledge their thorough and inspiring teaching, which helped nurture and shape my ideas, my direction, and my writing.  My father, Dave Estergaard, has been an invaluable editor throughout my many years of study, in every aspect of my work. I am thankful for the hours of thoughtful effort he has put into reading and thinking about this topic and my dissertation. Sincere thanks also to Fraser’s head-babysitters: Grandma Meredith and Granddad Dave. I could not have pressed through this process without the love and continued encouragement of my husband David. He championed my vision, challenged my thinking, and cheered on my small accomplishments. Thank you to my son Fraser for forcing me to produce a draft before I produced him, and for being a patient little guy while I finished this work.  xxvii  Dedication  To Fraser. May you always know and respect your home.  Except for the idea of a creator, there is no idea quite as bewildering as the idea of home, nor one that causes as many conflicts. J. Edward Chamberlin 2003.  xxviii  Chapter 1.  Introduction  1.1. Research Objectives This dissertation presents individual First Nations peoples’ experiences with cases related to decisions about resource use in British Columbia over the past decade, and describes some of the aspects of consultation and negotiation that made the interactions more meaningful for the First Nations peoples involved. Through case study, I describe the critical process elements and fundamental principles that are required to give substance and meaning to relations, negotiations, and interactions between nonIndigenous peoples and the First Nations when exploring stewardship and management questions regarding the land in British Columbia. Case study analysis 3 was applied because of its particular relevance as a useful heuristic approach where there is a void in existing literature or theory of the social sciences (Creswell 1998; VanWynsberghe and Kahn 2007). Case study as a method is described in more detail in Section 3.4.1 Case Study.  The outcomes of this research bring together the kind of process-design and affirmative principles that will assist in the creation of meaningful forums for First Nations peoples to participate in land management. Through the results of this research, I justify the need for inclusion and implementation of the principles of strong consultation. I argue that the interactions called for in the Delgamuukw case, interactions that are strong 3  More discussion of the significance of case study can be found in Section 3.4.1.  1  enough to be “something more than mere consultation,” (Delgamuukw 1997, par. 168) require not only the recognition of rights and a fair distribution of power, but negotiation based on an understanding of different histories, cultures, and goals based on different perspectives and ontological values. Finally, I identify some of the physical, economic, cultural, and ontological challenges to be faced when striving to achieve justice in negotiations between First Nations and the Crown regarding land management.  1.2. Research Context Land and resource use decisions made in Canada often directly affect the territories and lives of the Indigenous peoples of this country (Berkes 1981; Kansky 1987; Rogers 1995; Campbell et al. 2003). Industrial-scale forestry, hydro-electric power, mining, energy, pipelines, transportation, commercial and recreational fishing, and other projects can have “social, health, economic and cultural implications” and “impacts on fauna and ecology” due to significant environmental change (Kansky 1987, 94). These impacts and concerns can also include “social problems from new-comers [sic], community strain from a resettlement scheme and erosion of lifestyles” (Kansky 1987, 82). Large- and small-scale industrial projects were part of the colonization process in the province of British Columbia. “The resource–rich province was a prime investment opportunity for business and developers, and they paid little or no heed to First Nations land use or resource management” (Campbell et al. 2003, 148). Similar industrial resource-use  2  projects continue to have impacts on First Nations peoples’ traditional territories and lifeways today.  Many Indigenous nations in Canada, including most of the Aboriginal First Nations in the province of British Columbia, claim title to all or some portion of their traditional territories. Although positions around land-title and resource management in Canada still appear to be based on long-entrenched colonial ideas, assimilation goals, or racism (Flanagan 2000; Widdowson 2002), these attitudes may slowly be shifting to form a more constructive and respectful dialogue (e.g., New Relationship 2005) 4 in British Columbia.  Aboriginal title conveys some rights to First Nations in relation to their land, rights that have yet to be fully defined. In the Delgamuukw decision, the Supreme Court recognized Aboriginal title as a right to “exclusive use and occupation of the land” (Delgamuukw 1997, par. 117). Resource planning and development have significant potential to impact these lands, traditional-use rights, and management practices (Howitt 2001; Daly 2005). Over the past thirty-five years, Canadian courts have successively clarified that there is, at a minimum, a requirement for consultation when activities could impact Aboriginal treaty rights or Aboriginal title lands (see Section 2.3 for more on cases). Canadian courts have stated that potential infringement on Aboriginal title triggers a requirement for at a minimum consultation and substantial 4  Government of British Columbia et al. 2005.  3  accommodation of Aboriginal interests (Delgamuukw 1997, par. 168), and in most cases, something “significantly deeper than mere consultation” (Delgamuukw 1997, par. 168).  The definition and scope of Aboriginal title is also evolving in Canadian case law. In the recent Tsilhqot’in judgment, Justice Vickers states that the current limited view of Aboriginal title as simply a usufructuary 5 right is no longer valid (Tsilhqot’in 2007). In this case, framing Aboriginal title as a usufructuary right implies that Aboriginal title is subordinate to the primary title and ownership of the Crown. Viewed through a more contemporary lens, it is not surprising the Supreme Court of Canada has found that describing Aboriginal title as a usufructuary right is ‘not particularly helpful’: Delgamuukw (S.C.C.) at par. 112. Given the nature of Aboriginal title as now defined by the jurisprudence, it is fair to say that it can no longer be characterized as a usufructuary right. (Tsilhqot’in 2007, par. 478)  Despite the advances in both jurisprudence, and to some extent in political positions regarding Aboriginal title (e.g., the British Columbia New Relationship 2005) 6, consultative processes are still predicated on the idea that Aboriginal title is subsumed under Crown title. This subjugation of Indigenous peoples’ land conceptions and interests has a significant effect on the First Nations’ position and power in land dealings, such as treaty negotiations and consultation processes with the Crown. Fundamental questions, goals, decision frameworks, processes, timelines, and power distribution, are just some of the elements of land related negotiation that need to be  5  A usufructuary right implies that land is allowed to be used by one group while being owned by another. 6 Government of British Columbia et al. 2005.  4  revamped in order to move beyond colonization of land a peoples and move towards reconciliation.  However, cases do exist where First Nations participants describe their level of involvement in negotiations as improving or good, if not coequal with provincial and private interests. Key case examples, influenced by the 1997 Delgamuukw decision, can be found throughout British Columbia in a variety of industrial resource-use sectors including forestry, mining, energy, fisheries, and land-use planning. An analysis of a selection of these positive cases 7 was conducted to elucidate those decision-making elements that facilitate the inclusion of “different takes” (Rhoades and Harlan 1999, 278) on seeing problems and solutions. I show that, while they are better than what took place in the past, these cases are still constrained by the limited degree to which the First Nations are able, enabled, and permitted to drive priorities, processes, and final decisions. The principles of strong consultation, or balanced negotiation, identified through this research, may assist in improving consultation practices in British Columbia. 1.3. Research Timing The outcomes of this study are intended to provide fundamental principles and guidance for First Nations and Crown governments challenged to create meaningful forums for government-to-government consultation and negotiation related to land. See Section 3.4.2, Case Selection, for a brief discussion of the relevance of unsuccessful land management cases.  7  5  This work is timely and significant due to the developments around the definition of meaningful consultation in both the federal and provincial political arenas. I deal with each in the following way. First, the definition of negotiation or engagement that is “significantly deeper than mere consultation” as required by the Delgamuukw decision has yet to be fully described in Canada (1997, par. 168). Government leaders, politicians, lawyers, and interest groups are jockeying to define this concept. I will argue that since a degree of flexibility and uniqueness constitutes part of the meaningfulness in each situation, if consultation is rigidly defined it will be at the peril of not achieving truly meaningful consultation.  At the time of writing, the federal government is waiting for an appeal hearing in which they wish to seek clarification on the definition of meaningful consultation. This appeal case flows from the Federal Court decision in the Dene Tha' First Nation v. Canada (Minister of Environment et al.) case (Dene Tha’ 2006), which reached an out-of-court settlement in 2006 (Indian and Northern Affairs Canada 2007a). On December 5th, 2006, Canada filed a Notice of Appeal of the Federal Court decision of November 10th, 2006, concerning the Dene Tha’ First Nation and the Mackenzie Gas Project. The Appeal is independent of the Settlement Agreement, and continues in the interests of seeking greater clarity of the law on Aboriginal consultation. (Indian and Northern Affairs Canada 2007b, n.p.)  The outcomes of the federal government’s appeal case could have significant implications for all First Nations in Canada, and particularly for most British Columbian First Nations who rely on these consultation processes to steward their  6  territories in the absence of treaties and co-management agreements. With the appeal case soon to be heard, there is immediate need for the variety, breadth, and complexity of deeper, stronger, more meaningful consultation to be discussed and researched. No single template could meet the needs of all First Nations, yet a combination of key elements and principles may form a constructive foundation.  The second ongoing activity that makes this research particularly timely is the work going on between the provincial government of British Columbia and the member organizations of the First Nations Leadership Council (FNLC) of British Columbia 8. These two groups signed a New Relationship Agreement in May, 2005 (Government of British Columbia et al. 2005). As part of this agreement, a joint FNLC-British Columbia Recognition Working Group was tasked with achieving the main deliverables from the New Relationship document, for example “producing principles and mechanisms for recognition and Honour of the Crown, consultation/accommodation, shared decisionmaking, revenue & benefit sharing, and other matters” (FNLC Bulletin in Union of B.C. Indian Chiefs 2007, n.p.). This group is currently focused on recognition legislation as its first priority. Furthermore, as part of the New Relationship deal, a New Relationship Trust (NRT) was set up. This Trust has also identified developing capacity and frameworks for consultation as priorities in their 2008 to 2010 strategic plan (NRT 2007). For the principles of the New Relationship and the objectives of the Trust to be fully  The First Nations Leadership Council is made up of three member organizations: the Union of British Columbia Indian Chiefs, First Nations Summit, and the British Columbia Assembly of First Nations.  8  7  realized, the limitations of the current consultation and co-management mechanisms need to be brought to light.  1.4. Interdisciplinary Research This dissertation is interdisciplinary in that it touches on topics that would typically reside in the disciplines of First Nations studies, resource management, social science, history, philosophy and law. It seems fitting that research involving First Nations peoples, who do not typically share the distinctive worldview of Westerners that resulted in the “reductionist disciplines” (Newell in Lattuca 2001, 5) of academia, would be difficult to fit squarely into an academic disciplinary box. Devon Mihesuah, professor of applied Indigenous studies and history, describes interdisciplinary research as “the most effective way of making sure you have included all information [when writing about American Indians], but it still is not accepted by the old guard of scholars who demand that writers remain ‘discipline specific’” (2005, 4). While my research has not faced criticism for being interdisciplinary, it certainly has been more effective to gather information and use techniques from across disciplines, as described by Mihesuah (2005).  However, an interdisciplinary researcher must be careful to balance the needs of their research objectives with the expectations of the disciplines they would like to follow and respect.  8  In the past, when interdisciplinarity was criticized for not being ‘disciplined,’ the charge was a presumed lack of rigorous thinking and methodology. Scholars attempting interdisciplinary work were suspected dilettantes who knew too little and claimed too much. (Lattuca 2001, 3)  The format and style conventions used in this dissertation closely ally with resource management and environmental studies – generally scientific disciplines. However, the research methods, uncovered themes, and overall writing style borrow strongly from First Nations studies and social sciences.  While my research is not aimed at resolving conceptions of Aboriginal title, or fully describing an Indigenous peoples worldview, or restating the principles of conflict resolution or negotiation, or critiquing the common law that serves as foundation for much of this discussion, each of these topics, that are typically discussed in far flung disciplines, is introduced to provide the reader background and substance for the principles of fair land-management negotiations that follow. I leave the full treatment of these issues – title, sovereignty, ontology, Indigenous Knowledge and conflict resolution – to specialists in their disciplines. Fuller treatments of the Delgamuukw case, decision, and discussion of the cultural limitations of the judgment can be found in Our Box Was Full (Daly 2005), and If This is Your Land, Where Are Your Stores? (Chamberlin 2003).  9  1.5. A Note on Terms First Peoples in Canada use various terms for referring generally to themselves and their communities in English. First Nation(s), First Peoples, Aboriginal, Indigenous, Indian, and Native are among the most commonly used terms. However, each of these terms has some underlying connotations and the careful writer can set a tone by simply applying one or two of these terms. Wherever possible I have employed First Nations and First Peoples for their respectful and common political usage in British Columbia by both Indigenous and non-Indigenous peoples. I have also used the terms Aboriginal and Indigenous as adjectives to refer to cultural or political aspects of local First Peoples. The term ‘Aboriginal’ is commonly used in Canada as an adjective and is particularly necessary when referring to Aboriginal rights and title whereas Indigenous is commonly used in international contexts and is increasing in usage among Canada’s Indigenous peoples. The convention in Canada is to capitalize Aboriginal in most instances, whereas Indigenous is variously capitalized, more so in academic work, and has been in this work.  When referring to legal or governmental references, Indian or Indian Band may need to be used because of their use in the Canadian statute the Indian Act (1985), although these terms are outdated and demonstrative of early newcomers’ geographic  10  ignorance. 9 A glossary is provided at the end of this dissertation to further describe how these terms are used in Canada.  However, all of these terms have their own inferences and I have used them variously so as not to preference one term. My friend and colleague Cliff Atleo Jr. wrote, in his review of Steve Tilley’s write up about One Dead Indian, that it is Journalism 101: Writing about the locals. ‘First Nations’ are happy, singing folk. ‘Natives’ are angry and often break the law. ‘Aboriginals’ get lots of money. ‘Indians’ only seem to appear in the National Post and Fraser Institute publications (Interestingly, the term now seems to offend Aboriginals and their friends but does not seem to perturb Indigenous people too much anymore). (C. Atleo 2006, n.p.) I note that new groups and initiatives in British Columbia have started to use the term Indigenous more often, which is a recent change in the province. For this reason I have preferenced the term Indigenous where appropriate in my writing.  A discussion of human relationships with the earth’s biosphere also leads to some terminology choices. Most English language references to the environment, nature, or resources separate humans from the rest of the natural world. Even referring to decision-making around land as resource management separates humans from nature and commodifies the natural world as a resource. Indigenous peoples often refer to the land as a complete material and non-material ecosystem which includes themselves (Youngblood Henderson 2000; Campbell 2003; E.R. Umeek Atleo 2004). As described by  Many of my Aboriginal friends and colleagues refer to themselves or other Aboriginal people as Indians, however, in my experience this reference is generally used in close company or in humour. Further, older generations of First Nation people are more likely to use the term Indian due to its long use during their lifetimes in Canada. 9  11  Gleb Raygorodetsky, Gwich’in 10 elder and co-ordinator of the Gwich’in Environmental Knowledge project: The term "Land"… is not restricted to the physical environment only. It has a much broader meaning, used by Indigenous people to refer to the physical, biological, and spiritual environments fused together. The closest scientific equivalent of the "Land", taken without its spiritual component, is "ecosystem". (1997, 14)  Thus, Aboriginal references to land incorporate animals (including humans), water, air, trees and the non-material spiritual world. However, using the term ‘land’ for the environment can be problematic when Westerners are involved. Many Western scientists think of land as earth/soil, distinct from water, air, animals and fauna, while other Indigenous and non-Indigenous scientists have used the term land in its more inclusive and holistic sense. I have chosen to use variously the terms ‘land’ when referring to the whole earth system, and ‘resource management’ when referencing activities related to choices around the use of that land.  As described on the Gwich’in website, the Gwich’in are Athapaskan peoples who are one of the most northerly aboriginal peoples in Canada. Their territory lies within the Yukon, Alaska and the Mackenzie River Valley. 10  12  Chapter 2.  Historical and Cultural Context  2.1. Colonization and Land Management Fundamental questions of justice surround the not-yet-resolved questions of what constitutes meaningful consultation and accommodation for First Nations in Canada, and who should be in a position of authority for land stewardship and land negotiations. Moreover, one must examine who and what defines land ownership, proprietorship, title, sovereignty, and communally-held territory. 11 The history of colonization in Canada and British Columbia forms part of the foundation for answering these questions. While this research does not set out to determine a just distribution of power and land, the thesis does require an understanding of the colonial history of the province, and the concepts of title and sovereignty, to understand the roles that non-Indigenous people have assumed, and Indigenous people have lost, in land-use decision-making processes.  2.1.1. Indigenous Peoples Occupation Since Time Immemorial Indigenous peoples have lived on the northwest coast of the Pacific Ocean for thousands of years. Many First Nations in British Columbia refer to their presence in their territories since “time immemorial” (Crey interview 2007; BC AFN 2007b; Hupačasath 2007), which is to say that they have been here since a time beyond Because this issue of ownership is critical to the degree to which consultation is conducted in British Columbia, I provide some brief background on the concepts of ownership and the Indian land question, but suggest the reader turn to Jacobs (1998) for detailed discussion of ownership and its relation to First Nation property concepts. 11  13  memory, a time long past. This rather broad statement has been made somewhat more specific through the oral histories and anthropological studies conducted in the province and the continent. And in some cases, the phrase time immemorial may not describe the true depth and duration of the presence of First Nations.  The experience of “human beings in America begins almost 25,000 years ago, a full 15,000 to 18,000 years before the emergence of agriculture in Asia and Africa, and 20,000 years before the emergence of urban living in Asia and Africa” (Hooker 1996, n.p.). At least 10,500 years ago the ice sheets began to recede in British Columbia. Many First Nations in British Columbia date their presence in the province prior to glaciation receding (e.g., the Haida) and have demonstrated this presence through their oral history, while Western scientists tend to assume Aboriginal presence began roughly at the time period of glacial retreat. However, recent archeological evidence shows a preClovis 12 period presence on Vancouver Island that debunks, or calls into strong question the long-held belief that Indigenous peoples simply wandered across the thendry Bering Straight from Asia, did not arrive by sea, and would not have been able to live in British Columbia during the ice age. For instance, a series of discoveries of bison bones, some with evidence of butchering, on Vancouver Island and nearby Orcas Island 12  Clovis, Folsom and Plano are Western anthropological terms given to Native Americans from different  periods before present; all three terms are more generally labeled Paleo-Indians 11,500 to 8,000 BP. PaleoIndians have been described by Westerners as having subsistence living standards and being nomadic hunters. The Archaic Period (8,000 to 1,000 BP) shows Western scientific evidence of agriculture. The Early Woodland Period (3500 BP) archeological evidences shows the development of pottery and tombs. (Footnote content summarized from Hooker 1996).  14  in Washington state provided evidence of the presence of Ice Age hunters some 14,000 years before present, earlier than previous Western scientific estimates of the arrival of indigenous peoples on the west coast of North America. (Al-Suwaidi et al. 2006; Wilson, Kenady and Schalk 2009)  The population of Aboriginal people in British Columbia at the time of contact was vast. Harris estimates that the population was upwards of 200,000, while late nineteenth century census estimates had only put the pre-contact number at 80,000 (Barman 2007, 16). Of the four million people living in British Columbia, nearly 200,000 people responding to the government census 13 in 2006 and identifying as Aboriginal, Métis or Inuit, has risen to nearly 200,000.  Indigenous peoples’ oral history and traditions describe the presence and control First Nations peoples had over their territories in British Columbia long prior to any European contact. First Nations have begun, through lengthy court processes, to document (in a Western sense) their presence and control over traditional territories in the province. In Delgamuukw, it was found: that there was some form of human habitation in the [Gitksan and Wet’suwet’en] territory and its surrounding areas from 3,500 to 6,000 years ago, and intense occupation of the Hagwilget Canyon site (near Hazelton), prior to about 4,000 to 3,500 years ago. This occupation was mainly in or near villages on the Skeena River, the Babine River or the Bulkley River, where salmon, the staple of their diet, was easily obtainable. (1997, 24) 13  See Statistics Canada website for data ( http://www12.statcan.ca/english/  census06/data/profiles/aboriginal/Details/).  15  In the recent Tsilhqo’tin decision 14, judge Vickers stated that the Tsilhqo’tin peoples had occupied their traditional territory in south-central British Columbia in the Chilko Lake region for “over 200 years” (2007, par. 1374). Proof of this duration of presence was the important to the case as it pre-dates British claims of sovereignty over the British Columbia mainland. Dr. Richard Matson, archeologist and witness for the plaintiff (the Tsilhqot’in First Nation) in the case, asserted that the Tsilhqo’tin were descendents of Athapaskan peoples and “concluded that Tsilhqot’in people have been in the region since at least 1645 - 1660 AD” or for nearly 400 years (Tsilhqot’in 2007, par. 218).  Figure 1. Lillooet First Nation Women Drying Salmon, 1954 (Image I – 29074. Reprinted courtesy of Royal BC Museum, BC Archives)  14  See Section 2.3.9 for a fuller discussion of the Tsilhqot’in decision.  16  In British Columbia, colonization is part of our recent collective history. European explorers, searching for new resources and items of trade began to arrive on the west coast of British Columbia in the 18th century. Russians began trading on the west coast of the Pacific in the mid-1700’s, along with the arrival of Danish and Spanish explorers. However: There was little European influence in western Canada until the arrival of Capt. Cook at Nootka on Vancouver Island in 1778, which led to the sea otter hunt in the north Pacific. This influence grew with the establishment of the first Hudson’s Bay trading post west of the Rockies (although east of the territories claimed [in central British Columbia]) by Simon Fraser in 1805-1806. (Delgamuukw 1997, par. 11) Thus, Europeans in British Columbia have had a presence and influence for just over 200 years, whereas Indigenous peoples date their presence and use of the land to 500 or thousands of years before present.  Furthermore, the British official claim of sovereignty over the province only dates back one hundred and fifty years. The debate over Nootka Sound in the late 1700’s on the west coast of Vancouver Island is sometimes cited at the point in history where Spain relinquished claims of sovereignty to Britain (see Canada in Tsilhqot’in 2007). And while the Nootka crisis involved the struggle over the so-called new trading territory, it also drew in European political issues of the day and ultimately ended with the Nootka Convention of the 1790 where Spain agreed to abandon its exclusive claims to Nootka  17  on the west coast (Barman 2007). 15 Following the Nootka Convention, European interest in the west coast “waxed and waned” and “even a half century of maritime exploitation, during which the sea otter was nearly exterminated, had little effect on the eventual determination of sovereignty over the territory that would become British Columbia” (Barman 2007, 33).  The Canadian courts have applied 1846 as the date of British sovereignty over British Columbia, where Britain exercised sufficient occupation and control over the province to deem themselves sovereign. I have no difficulty in concluding that The Treaty of Oregon, 1846 is a watershed date that the courts have relied upon up to now. I see no reason to move from that date. Indeed, as the Province has argued, the authorities would appear to be too well entrenched to admit any reconsideration at this level of court: see Calder (S.C.C.) at p. 325, per Judson J.; Delgamuukw (B.C.S.C.); Delgamuukw (B.C.C.A.); Delgamuukw (S.C.C.); Haida First Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73, at para. 65 [emphases in original]. Apart from that, by 1846 there was a de facto [emphasis in original] British presence in the area. The Treaty of Oregon is a treaty with another nation settling a boundary dispute and providing international recognition of sovereignty to the land and territory north of the 49th parallel. The assertion of sovereignty, recognized by another nation, is clear at this point in our history. (Tsilhqot’in 2007, par. 601, 602)  But it was not until 1858, in response to potential American assertions of sovereignty over the mainland of the province, that Britain took action and in “July 1858 a bill was  15  It took over five years for the Nootka Convention to be implemented. For more on the European  exploration of the west coast, see The West Beyond the West by Jean Barman (2007).  18  introduced in the House of Commons to create a mainland colony of New Caledonia 16, comprising that part of the HBC’s [Hudson Bay Company’s] fur-trade monopoly lying west of the Rocky Mountains” (Barman 2007, 72). And thus the British claimed sovereignty over the colony of British Columbia. The denial of legitimacy for Indigenous peoples, their claims to land title, and their forms of governance, is steeped in colonial history and continues today.  2.1.2. Justifying Newcomer Land Title European exploration for resources in the New World began in the late 15th century, and is significantly marked in America by the arrival of Columbus in 1492. Columbus was Italian, but his voyage was funded by Spain and thus he represented the Spanish monarch during his exploration. In British Columbia, the first encounters between seagoing explorers and local peoples occurred as recently as the eighteenth century. By then the European, in blatant disregard for indigenous populations with distinct cultures, claimed to have ‘discovered’ most of the world, rather than having encountered long-established ways of life. Among areas lying off established sea routes was the Pacific Northwest, extending from northern California to Alaska. (Barman 2007, 15)  As part of the colonization project, European countries applied their own rites for claiming sovereignty over their so-called discoveries in the New World. In North America, as in many other colonized areas of the world, gaining sovereignty was recognized by the French, Spanish, English, Dutch and Portuguese through a “series of  16  This name was later abandoned due to potential confusion with French colonial island in the Pacific Ocean (Barman 2007).  19  acts” mutually recognized by European powers (Macklem 2001, 113). These acts ranged from simply planting a flag, reading a manifesto to local Indigenous people, such as the Spanish Requerimiento of 1513 (17), or occupying an area with settlers (Rivera 1992; Macklem 2001). The English claiming rites were “almost anitceremonial” whereby they employed “architectural objects and everyday agricultural activity” (Seed 1995, 13). However these “fences and hedges” were not necessarily recognized as persuasive claiming rites, by say the Spanish, who would read their “Spanish speeches (duly notarized)” (Seed 1995, 12). Furthermore, “the other European legal systems that would come to the New World – French, Spanish, Portuguese, and Dutch – required either formal permission or written records to acquire title even to apparently unused land” (Seed 1995, 19). British Columbia and much of Canada was shaped by the colonization of the English and “in English law, neither a ceremony nor a document but the ordinary action of constructing a dwelling place created the right of possession. The continuing presence and habitation of the object – the house – maintained that right” (Seed 1995, 19).  While claiming rites differed between countries, Western European colonizers eventually developed their own principles governing the distribution of sovereignty. The established rules of the day included the so-called doctrine of discovery, whereby sovereignty could be acquired in one of three primary instances: when territory was The Spanish colonizers in the New World read a manifesto called El Requerimiento which stated, among other demands, that the local people convert to Christianity or suffer war. The Spanish also used this Requirimiento and associated religious and royal justifications in their wars against the Moors of Granada. The Requerimiento was read in Spanish to local Indigenous peoples who did not speak Spanish. 17  20  considered to be unoccupied (terra nullius), or through cession of occupied territory through war or treaty (Ashe 1997).  The method of declaring sovereignty for a European Crown by deeming land unoccupied was achieved in one of two ways. First, the concept of terra nullius, land unoccupied by humans or people considered fully human, 18 was developed by Western Europeans to justify settlement in Australia, parts of North America, South America, New Zealand and many other colonized areas of the world. Second, the Western, particularly English, concept of occupied land also required the land to be used by peoples considered civilized and organized, living in villages with fences, agriculture, resource extraction, and development. In the case of the Indigenous peoples of North America, “European powers viewed Aboriginal nations as insufficiently Christian or civilized to justify recognizing them as sovereign over their lands and people” (Macklem 2001, 114) rather than recognizing that they had met some of the world’s “most distinctive” Indigenous peoples (Barman 2007, 15). The Indigenous peoples of British Columbia “spoke complex languages, they were economically self-sufficient, and they boasted of cultures that were in many ways more developed than those of any other part of the continent north of Mexico” (Barman 2007, 15).  18  In the early 16th century, debate ensued in Spain about whether Indigenous peoples of the West Indies and Africa were humans or sub-human and whether they were solely suited for slavery or deserved protection under the law (Bartolome de Las Casas 1552).  21  The functioning ecosystems managed by Indigenous people were not viewed as occupied by British colonizers. Many colonizers saw these ecosystems as untouched landscapes, rather than the managed systems they were. When Captain George Vancouver sailed into Burrard Inlet, the area that now bears a city of his name, he said it required “only to be enriched by man to render it the most lovely country that can be imagined” (Penikett 2006, 73). However, Indigenous territory throughout the world, from the Penan people's molonged (nurtured) rattan forest-fields in Western Borneo (Brosius 2001) to the fire-managed landscapes of the North American Garry Oak ecosystems on the west coast (Turner 2005), were seen by European colonizers as wilderness, nature, or “raw land”, lacking and requiring “commodification by imperialism” to acquire value (Forbes 2001, 109).  Furthermore, the Indigenous systems of governance, communal property law, and feasting, to name a few, were not recognized by the administration of the new Colony as acts of control by a sovereign nation over its territory (Forbes 2001, 76). In the late 19th century, when land title issues were being decided by Western European colonizers in parts of the New World, including British Columbia, Lockean principles of private property were influential (Harris 2002). In essence, the labour theory of property posited by John Locke contended that when one puts his 19 labour into a piece of land, one then has a special right to that land, or in European terms, has ownership of that  19  In late 19th century Europe, the labour of women was not recognized as contributing to land ownership.  22  land (see Laslett’s 1988 edited work of Locke’s Two Treatises of Government 20). In 1867, Joseph Trutch, chief commissioner of lands and eventual Governor of the Colony that would be British Columbia, stated clearly the common colonial opinion: that First Nations people were not using their lands sufficiently to maintain ownership or title to the lands they claim. 21  Many First Nations in British Columbia were viewed as lawless because they did not have a system of laws and government that was recognizable to the European newcomers. In contemporary international law, a new system of law cannot be imposed on another Nation if one already exists. This perceived absence of law in the colonizers’ eyes was another justification the colonizers used to impose their people, culture, and laws on these Indigenous Nations. This attitude prevailed through much of the 20th century as well, as evidenced by the lower court ruling in Delgamuukw that did not recognize the Gitxsan and Wet’suwet’en First Nation forms of law and governance (songs, stories, feasting) as legitimate evidence of a legal system of governance.  20 Locke, John. [1690]. 1988. Two Treatises of Government. Ed. Laslett, Peter. Cambridge: Cambridge University Press. 21 “The Indians have really no right to the lands they claim, nor are they of any actual value or utility to them, and I cannot see why they should either retain these lands to the prejudice of the general interests of the Colony or be allowed to make a market of them either to the Government or to Individuals” (Trutch quoted in Penikett 2006, 75)  23  2.1.3. Colonization, Treaties, and Reserves in British Columbia The British established the colony of Vancouver Island, off the west coast of British Columbia, in 1849. Between 1850 and 1854, the Hudson’s Bay Company (who was responsible for settlement in the new colony) and Governor of the new colony, James Douglas, made fourteen land purchases on Vancouver Island. In 1858, the British colony of British Columbia was created, and the issue of Aboriginal title was never clearly addressed on the mainland (Harris 2002). Governor Douglas’s policy shifted to the mainland and to marking out larger, anticipatory reserves that were defined by the First Nations themselves in advance of settlers making claims (Harris 2002). [For instance], the Kamloops Reserve land base was established in 1862 under the direction of then Governor James Douglas. It included an area approximately 26 miles east of the North Thompson River by 26 miles north of the South Thompson River, adjacent to the City of Kamloops. Although the Secwepemc never signed away their rights to this land, in subsequent years the reserve was reduced in size to around 7 by 7 miles today. In 1988 the Kamloops Indian Band filed a claim to the original Douglas Reserve. In 2001 the Canadian Government rejected the claim. The Kamloops Indian Band is currently preparing to file a new claim under the Douglas Reserve Initiative […]. (Freeman et al. 2005, n.p.)  Unfortunately, title was not settled in these processes, and the reserves were not registered in the provincial gazette and were summarily rescinded, reduced, or redrawn during the governing years of Joseph Trutch, the primary author of native land policy in British Columbia (Harris 2002).  Colonizers also set up rules for how land could be acquired by newcomers for settlement. Governor James Douglas’s land preemption policy for British Columbia, 24  which allowed settlers to claim title to unused portions of land, enabled “native people to pre-empt on the same terms as anyone else” (Harris 2002, 36). However, when these lands were preempted, a Western standard of land-use needed to be applied (fences, rowed agriculture, animal husbandry) in order to claim title to the land. 22 These land use requirements proved very difficult for most First Nations people to achieve and sustain for both cultural and financial reasons.  After Douglas’s retirement in 1864, his land policies were largely abandoned. The prevailing settler view that “almost all provincial land was unsettled and unused – or used slightly in ways that deserved to be replaced by more intensive, modern land uses” was adopted and not debated (Harris 2002, 45). Indigenous methods of land stewardship were not seen as sufficient justification to maintain ownership or governance of a piece of land. 23 The European newcomers imposed a new industrial land “management regime, one that worked for the newcomers, but not necessarily for the original inhabitants and their culture” (Ommer and Turner 2004, 10). The legacy of the colonial reserve system and land allocation system in British Columbia had  “Native pre-emptors were to reside continuously on their farms for two years; build a 20 x 30 foot house of squared log walls ten feet high and roofed with shingles; clear, fence, and cultivate two acres of forest or five acres of prairie in the first year; and in each of the second through fifth years similarly prepare three acres of forest or six acres of prairie… Given that the cost of clearing an acre of coastal forest was some $300 (the wage of a Chinese or Native worker for a year)…” and that Native people were not permitted to sell portions of their pre-empted land to raise capital, such terms would have made Native land pre-emption and ownership nearly impossible (Harris 2002, 36). 23 British colonists viewed planting, tilling, gardening, house construction and bounding of space (through fences) to signify possession of that land (Harris 2002). “It followed from this that those who did not plant gardens, or did not fence them, or did not create landscapes that bore imprints familiar to the English, did not possess the land and could not have property right to it ...”. A Native garden, unfenced, was inadequate (Harris 2002, 48). 22  25  devastating effects on First Nations peoples. “In taking away almost all their land, it had very nearly snuffed Native people out” (Harris 2002, 291).  First Nations in British Columbia have been resisting the British claim to sovereignty and land title for over one hundred years. For instance, there is “abundant evidence that Indians had claimed title from the beginning [contact] and had demanded treaties as early as 1887 in the north coast hearings” (Tennant 1990, 110). A detailed historial treatment of Indigenous peoples claims to land title can be found in political scientist Paul Tennant’s book Aboriginal Peoples and Politics – The Indian Land Question in British Columbia 1989 – 1989 (1990). The activism around land title of British Columbia First Nations peoples and their representative in the early twentieth century led to the insertion of section 141 into the Indian Act in 1927 24. This section made it illegal for “Indians to take any of the necessary steps to get their claims into court” including hiring lawyers or raising funds for land claim related activities (Tennant 1990, 113).  24  This section was not repealed until 1951 (Tennant 1990).  26  Figure 2. First B.C. Chiefs Conference, 1969 (Photo courtesy of the Union of BC Indian Chief. © Union of British Columbia Indian Chiefs. All rights reserved. Reprinted with permission.)  Yoobx (Elmer Derrick), Chief Negotiator and Gitxsan member, recounts how the Gitxsan resistance to reserve boundaries and limitations led to incarceration of some of its members. In the 1920’s one of my grandfathers was sent to Oakalla Prison Farm for obstruction of justice. He and three other men from Kitwancool spent six months in the federal prison in New Westminster. My grandfather’s offense was to defend the action of his mother in law who had threatened surveyors when they were putting posts around their property at Kitwancool Lake. The surveyors had come to establish a reserve so that my great grandparents would have titled land. My great grandmother stated to the government people that the land was hers and told them to leave. They left but came back with police. The police attempted to remove my great grandmother from her yard. My grandfather intervened and he was picked up and sent to Oakalla. Following the establishment of the Kitwancool Reserves the people of Kitwancool were not allowed access to their lands and resources. (2008, n.p.)  This history of colonization in British Columbia did not end with the British declaration of sovereignty (1790s), the formation of the colony of British Columbia (1858) or the  27  signing of the Constitution Act (British North America Act), 1867 or the Constitution Act, 1982; colonization continues today in many aspects of the lives of First Nations peoples. Colonization continues through the remnants of old colonial systems (the existence of reserves, the non-recognition of Aboriginal title, the presence of INAC, and the understanding that Aboriginal people are a burden on the Crown) and in modern forms such as the encouragement of Western forms of so-called progress for communities, the loss of Indigenous peoples’ languages and perspectives in the education systems and the dominance of a Western worldview in land management, to name but a few forms colonization continues to take. This notion of an ongoing colonization is important when framing and understanding the key issues that need to be addressed in land and resource management in the province.  The basic history of sovereignty claims, treaty making, and reserve allocations provide important context for the ongoing effects that this colonization has had for Indigenous peoples in British Columbia and elsewhere in Canada. The land that has been assumed and consumed by British colonizers and other newcomers is the very land for which Indigenous peoples struggle to retain, or reclaim, title. In the absence of reconciliation of land title and sovereignty issues, consultation and negotiation are left as mechanisms for resolutions and agreements. For a full treatment of the history of land pre-emption and reserve allocations in British Columbia, see Making Native Space by Cole Harris (2002).  28  2.1.4. Impacts of Colonization on the Ability to Steward Land Related to the limitations placed on Indigenous peoples’ ability to maintain sovereignty over their land, colonization in Canada and British Columbia created overlapping and cumulative negative social impacts on Indigenous people’s ability to steward the ecosystems and resources of their land. In addition to the diseases that led to severe population decline, which made First Nations land more vulnerable to encroachment by settlers and developers, numerous assimilationist laws and practices directly impacted land stewardship. For instance, the 1885 Indian Act banned feasting (potlatching), which made it very difficult for many First Nations to govern and manage their land-based resources in a traditional way (see Glossary for potlatch). 25 Many First Nations’ laws and management practices are communicated, and the redistribution of resources is accomplished through different feast ceremonies. In addition, the creation of tiny, “postage stamp” (Tsilhqot’in 2007, par. 610) federal land reserves set aside for Indigenous people in British Columbia left many First Nations with a very limited ability to influence development activities occurring in their territories. And some federal and provincial so-called conservation regulations placed an outright ban on Indigenous people’s access to food resources (e.g., Abalone on the north coast) (Turner 2005).  25  The ban on the potlatch was not rescinded until 1951.  29  Figure 3. Carrier First Nation "Welcome Dance" circa 1930 (Image B - 01350 Reprinted with permission of Royal BC Museum, BC Archives)  Possibly the most damaging blow to First Nations’ ability to continue to steward their land and transfer traditional land management knowledge was the incarceration of Aboriginal children in federal residential schools. 26 Aboriginal children were taken to residential/industrial schools, often hundreds of kilometers from their families. This distance and the limited time spent within their own community disabled elders from passing on Indigenous Knowledge and wisdom to their next generations.  As stated by  Prime Minister Stephen Harper in his apology in 2008: Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions and 26  For detailed and personal accounts of over a century of residential school impacts in British Columbia, see John Milloy’s A National Crime: The Canadian Government and the Residential School System (1999) , Celia Haig-Brown’s Resistance And Renewal: Surviving the Indian Residential School (1989), and Suzanne Fornier and Ernie Crey’s Stolen from Our Embrace (1998) among others.  30  cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, "to kill the Indian in the child". Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country. The assimilation 27 goals of these residential schools in British Columbia and across Canada resulted in a generation of First Nations people who had a weakened or lost contact with their culture, including language, ceremony and lifeways.  Figure 4. Thomas Moore in Residential School Photos, 1874 (Image R-A8223-1 and R-A8223-2 courtesy of the Saskatchewan Archive Board. Images now in public domain.)  27  Colonization of British Columbia by Crown agents, settlers and religious groups pursued a primary goal of assimilation of the Aboriginal population into Western European culture and lifestyles. Ultimately, assimilation would lead to the loss of language, culture, values, livelihood, and governance methods.  31  2.1.5. Land Under Treaty in British Columbia Colonization in Canada took many different forms as settlers made their way west across the country. British and French newcomers signed treaties in large parts of Canada on  behalf of their European Crowns “early in the history of European expansion” to formalize a “peaceful co-existence between Aboriginal nations and newcomers to the continent (Macklem 2001, 136). These early treaties in Canada, or historic treaties, include treaties signed in Upper Canada (the Covenant Chain 1677) and on the east coast of Canada (Peace and Friendship Treaties), various pre-Confederation treaties, and the post-Confederation treaties known as ‘numbered treaties’ 1 through 11 that cover a large part of Canada (Figure 5).  However, in some regions of Canada, including Northern Quebec, the Canadian North and most of British Columbia, Crown treaties were not signed at the time of Confederation. While newcomers were occupying what they saw as new, unused Crown land, “native people lost almost all their land and, with it, their means of livelihood, to an aggressively colonized settler society” (Harris 2002, 293). Modern treaties were signed in the latter part of the twentieth century in Northern Quebec with the James Bay Cree, and in the Canadian north (Nunavut, Inuvialuit, and the Yukon). Settled lands associated with treaties or allocated reserves in British Columbia are very limited in area. Historic treaties were not developed in the major part of British Columbia, leaving British Columbia in a unique position compared to the rest of  32  Figure 5. Historic and Numbered Treaties in Canada (image adapted from Natural Resource Canada map, http://atlas.nrcan.gc.ca/site/english/maps/historical/indiantreaties/historicaltreaties)  Canada, where settled historic or modern treaty rights are common. 28 The Nisga’a Treaty (2000), and the more recent First Nations of Maa-Nulth Treaty (2007) and Tsawwassen Treaty (2008), 29 represent the only modern treaties and claims settlements in British Columbia and involve numerous agreement items including the transfer of Treaty 8 spans northern Alberta, part of northwest Saskatchewan, and includes the portion of northeast British Columbia east of the Rocky Mountain divide (peaks of the Rocky Mountains). 29 As of March, 2008 “On December 6, 2007 the Chief of the Tsawwassen First Nation Kim Baird, federal Minister of Indian Affairs Chuck Strahl and Minister of Aboriginal Relations and Reconciliation Michael de Jong signed the Final Agreement at a ceremony in Ottawa. Settlement legislation was then introduced in the House of Commons and given first reading. After the legislation receives approval by the Parliament of Canada and Senate, the Final Agreement will take effect on a date agreed to by the parties” (B.C. Ministry of Aboriginal Relations and Reconciliation 2007). 28  33  funds, some fee-simple land ownership, and some degree of land jurisdiction to traditional territory, the First Nations. 30 At the time of writing, the somewhat controversial Tsawwassen Treaty, British Columbia’s first modern urban treaty, was before the British Columbia legislature for ratification. In December 2008, the MaaNulth Treaty was still awaiting ratification by the federal government. Furthermore, Indian reserves cover just 0.36 percent of the British Columbia land base, a tiny portion of First Nations traditional territory; in some cases, reserve land that was appointed by the Crown nearly a century ago is not within a First Nation's traditional territory (BCTC 2006).  First Nations traditional territory, to which individual First Nations claim title, encompasses all parts of British Columbia, with many areas involving overlap between Nations. Given the small reserves and lack of treaties, most land encountered in British Columbia will be unceded 31 Aboriginal lands. Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. (Haida 2004, par. 25)  See the First Nations’ respective websites for more on their treaties: www. nisgaalisims.ca, www.tsawwassenfirstnation.com, and www.maanulth.ca. 31 The term ‘unceded’ refers to the territories of Indigenous people in Canada who claim to have not ceded, or given up, title to their lands through treaty, war or conquest. 30  34  2.1.6. Aboriginal Title Historically, the position of the Crown courts states that title to the majority of the land in Canada is held by the Crown, with Aboriginal rights and title only a burden on that Crown title (St. Catherine’s Milling 1888). Challenging this deep-rooted position, Mohawk scholar Taiaiake Alfred states that “all land claims in Canada … arise from the mistaken premise that Canada owns the land it is situated on. In fact, where Indigenous people have not surrendered ownership, legal title to ‘Crown’ land does not exist – it is a fiction of Canadian (colonial) law” (1999, 120). For most First Nations peoples in British Columbia, their title to their land has not been ceded through war or treaty. 32 This unceded title, given a somewhat limiting term of “Aboriginal title” 33 by Canadian courts, remains as simply an encumbrance, limitation, or a “burden” on Crown claims to prime “underlying” title to lands and resources (Delgamuukw 1997, par. 145). 34  Currently, there are three leading conceptions of Aboriginal title in Canada: “as a customary right, a right under English common law, and a sui generis right” (Slattery 2007, 256). The Supreme Court of Canada has described Aboriginal title in Delgamuukw v. British Columbia 1997.  32 See Section 2.1.5, Land Under Treaty in British Columbia, for more discussion of treaties in British Columbia. 33 See Glossary for a fuller description of Aboriginal title. 34 For a complete review of the implications of the Delgamuukw decision on Aboriginal title, see Mary Hurley’s work entitled Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw v. British Columbia prepared for the Land and Government Division of the Library of Parliament (2000).  35  …first …Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those Aboriginal practices, customs and traditions which are integral to distinctive Aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group’s attachment to that land. (Delgamuukw 1997, par. 117) [Aboriginal title] is also sui generis in the sense that its characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in Aboriginal legal systems. As with other Aboriginal rights, it must be understood by reference to both common law and Aboriginal perspectives. (Delgamuukw 1997, par. 112) A further dimension of Aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual Aboriginal persons; it is a collective right to land held by all members of an Aboriginal nation. Decisions with respect to that land are also made by that community. This is another feature of Aboriginal title which is sui generis and distinguishes it from normal property interests. (Delgamuukw 1997, par. 115)  While the Delgamuukw decision established that Aboriginal title has not been extinguished, the decision did so “without clarifying either from what it derives or how, or to what extent, it may be infringed” (Harris 2002, 296). And the hope that Aboriginal title has been fairly clearly described in Canada has “been shaken with the recent decision of the Supreme Court in R v. Marshall/R. v. Bernard [original cases 1999] where the Court seems adrift in a conceptual sea, without benefit of star or compass” (Harris 2002, 256).  36  The Supreme Court’s description of Aboriginal title also places limits on this type of title versus Crown title. 35 One of the limiting factors of the Supreme Court’s definition of Aboriginal title surrounds the uses that may be made of the land, given the relationship Indigenous people had, and still have, with the land. The Court views the past use and relationship with the land as unevolving and unchangeable. It seems to me that these elements of Aboriginal title create an inherent limitation on the uses to which the land, over which such title exists, may be put. For example, if occupation is established with reference to the use of the land as a hunting ground, then the group that successfully claims Aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip mining it). Similarly, if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (e.g., by developing it in such a way that the bond is destroyed, perhaps by turning it into a parking lot). (Delgamuukw 1997, par. 128)  The recent 2007 Tsilhqot’in ruling in the British Columbia provincial courts supported the assertion that Indigenous people hold title, over and above provincial jurisdiction, to all or some of their claimed territory (Tsilhqot’in 2007). The judgment clearly states that the Tsilhqot’in First Nation’s sovereignty and land title was not ceded by the symbolic acts of the British Crown in the 18th century. I am not persuaded that private adventurers or commissioned officers of His Majesty’s Royal Navy, even with their best intentions, can to the degree required by international law, assert sovereignty over vast territories by planting a flag and speaking to the utter silence of the mountains and boreal forests. They are, in  35  Crown occupation and sovereignty has been justified on sometimes racist, and always evolving, justice arguments proceeding from terra nullis (the land was unoccupied), biological racism (Indians were an inherently savage species requiring protection), and cultural racism (European governance and industrialization is a sign of progress, evolution and civilization, something for Indians to aim to achieve) (Haig-Brown and Nock 2006).  37  my view, just words blowing in the wind. I agree entirely with Lambert J. A. when he said in Delgamuukw [emphasis in original] (B.C.C.A.) at par. 707: Sovereignty, of course, does not occur when the first sea captain steps ashore with a flag and claims the land for the British Crown. Cook did that in 1778. Sovereignty involves both a measure of settled occupation and a measure of administrative control. 36 (Tsilhqot’in 2007, par. 596)  During the process of writing this dissertation, the voices of Indigenous leaders in British Columbia have become stronger and more unified around the issue of Aboriginal title, particularly in light of the landmark Tsilhqot’in decision. In November of 2007, the First Nations Leadership Council hosted a three day strategic planning session which was attended by over 120 First Nations leaders from across British Columbia. First Nations leaders examined and discussed the important Tsilhqot’in Nation v. BC decision and presented a unified signed strategy entitled “All Our Relations” A Declaration of the Sovereign Indigenous Nations of British Columbia, affirming Aboriginal title to their traditional territories across the province (First Nations Leadership Council 2007). The opening paragraph states: We, the Indigenous leaders of British Columbia, come together united and celebrate the victory of the Tsilhqot’in and Xeni Gwet’in peoples in securing recognition of their Aboriginal title and rights – and all those Indigenous Nations and individuals that have brought important court cases over the years resulting in significant contributions in the protection and advancement of Aboriginal title and rights, including the Nisga’a, Gitxsan, Wet’suwet’en, Haida, Taku River Tlingit, Musqueam, Heiltsuk and Sto:lo [sic] - shining light on the darkness of years of Crown denial of our title and rights. After pursuing different pathways, we now come together to make this solemn Declaration out of our common desire to be unified in affirming our Aboriginal title. (First Nations Leadership Council 2007)  36  Emphasis and lack of internal quotation marks in original.  38  2.2. Contemporary Requirement for Consultation The requirement for consultation, with regard to land use, with First Nations in Canada has three legal sources: constitutional, common law, and fiduciary. First, Aboriginal and treaty rights are recognized and protected by the s. 35 of the Constitution Act (Macklem 2001) and infringement on these rights requires consultation and accommodation of First Nations’ interests. Second, legal judgments have increasingly supported and expanded the nature of aboriginal title and the requirement for consultation at an early stage. And finally, the duty to consult also “originates in the fiduciary duty imposed on the Crown under its responsibility for Aboriginal peoples,” as described in the Supreme Court of Canada ruling Guerin (1984) (Brackstone 2002, 1). This fiduciary duty in the Crown’s relationship with First Nations peoples was enshrined in the Constitution Act, 1982 of Canada and reaffirmed in the Supreme Court decisions in Sparrow (1990) and Delgamuukw (1997). However, it is now considered that the ultimate source of the duty for the Crown to consult is to uphold the honour of the Crown (Haida 2004; Hunter 2005; Tsilhqot’in 2007).  Furthermore, court decisions indicate that the level of consultation should not merely uphold the fiduciary, trust-like relationship between the Crown and Aboriginal people, but should uphold the “honour of the Crown” (Haida 2004, par. 41). “In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances” (Haida 2004, par. 41). In most cases of  39  activities that may affect Indigenous lands, Chief Justice Vickers reaffirms that “where Aboriginal title exists or is alleged to exist, there is always a duty of consultation” (Tsilhqot’in 2007, par. 1114). Furthermore, the Delgamuukw decisions states that there “is always a duty of consultation and, in most cases, the duty will be significantly deeper than mere consultation [emphasis added]” (1997, par. 168). Section 2.3 contains a summary of the key court cases that have described the requirement for negotiation with First Nations within their traditional territories.  The development of meaningful consultation, negotiation and co-jurisdiction processes is in its infancy and has yet to be widely defined in British Columbia. At a minimum consultation requires talking together to gain mutual understanding. Therefore, current jurisprudence suggests that consultation could mean simply meeting and speaking with First Nations to understand their concerns. From this basic definition, the degree to which these concerns are accommodated may be minimal. However, consultation with title and rights holders in a territory ought to involve something significantly deeper than mere consultation (Delgamuukw 1997) which, in the case of significant resource developments, land disturbances, or environmental impacts, coupled with the gravity of the decision, is likely to mean strong consultation with culturally-aware accommodation and compensation. Accommodation and compensation involve adjusting plans to accommodate interests, or in some cases, compensating communities for infringement on their rights and interests.  40  In assessing whether the Crown has fulfilled its duty of consultation, the goal of consultation – which is reconciliation – must be firmly kept in mind. The goal of consultation is not to be narrowly interpreted as the mitigation of adverse effects on Aboriginal rights and/or title. Rather, it is to receive a broad interpretation in light of the context of Aboriginal-Crown relationships: the facilitation of reconciliation of the pre-existence of Aboriginal peoples with the present and future sovereignty of the Crown. The goal of consultation does not also indicate any specific result in any particular case. It does not mean that the Crown must accept any particular position put forward by a First Nations people. (Dene Tha’ 2006, par. 82) The Courts have stated that determination of the degree of consultation required is twopronged: the first being the strength of claim, and the second being the level of potential impacts on rights. Unlike the question of whether there is or is not a duty to consult, which attracts a yes or no answer, the question of what this duty consists is inherently variable. Both the strength of the right asserted and the seriousness of the potential impact on this right are the factors used to determine the content of the duty to consult (Dene Tha’ 2006, par. 86).  However, the ability and responsibility to determine this strength of claim is left in the hands of the Crown. Chief Sayers sees this as a source of power imbalance in the relationship between First Nations and the Crown (see Section 5.5 for more on power imbalance). The other thing we have to get out of the province is “Strength of claim”. Based on the strength of claim, ‘we get to decide how much you get to be consulted and accommodated’. Well, do they get to be the judge and jury on how strong our claim is? You know, and how much research are they going to do to determine how strong our claim is? We’re looking at court cases saying we have a very strong title. (Chief Sayers interview 2007)  41  The issues of Aboriginal title, its content, and the nature of its associated rights remain under debate despite the fact that over three decades have passed since the courts recognized that Aboriginal title had not been extinguished (Calder 1973). It has also been over a decade since the governments of Canada and the province of British Columbia have been legally required to conduct, at a minimum, consultation with the aim to substantially address the concerns of the First Nations whose territory may be impacted by resource extraction projects, industrial developments, and other aspects of Western economic resource use such as land transfers and licence issuance (Delgamuukw 1997; Haida 2004).  Relying on a rights-based argument in courts of law in Canada is not seen as the ultimate solution for First Nations and their land dispute resolutions. While the courts have “prodded, and may be able to prod a little more,” their “capacity for distributive justice is finite” (Harris 2002, 297). These issues must be dealt with through politics and negotiations, where “unbalanced distributions of power are the creations of settler colonialism” (Harris 2002, 297).  2.2.1. Consultation – Negotiating Without Treaties First Nations have “expressed deep concerns about the continued alienation of resources in their territories, from which they received little or no benefit” (Penikett 2006, 230). Consultation and negotiation are means by which First Nations can exercise their Aboriginal title. “Consultation and accommodation before final claims resolution 42  preserve the Aboriginal interest and are an essential corollary to the honourable process of reconciliation that s. 35 of the Constitution Act, 1982, demands” (Haida 2004, par. 4). For instance, Chief Sayers discusses how consultation is a key avenue for the Hupačasath to protect their sacred medicines, grasses and other sites of interest. But those are the kinds of things that are really hard to come by, like a particular plant that we eat, those kinds of things, that we try to protect through our consultation. Which is why we put the Land Use Plan in place to begin with, because we were just getting smeared with so many consul-… so many referrals. You know, it’s nice to be consulted, but the Crown gives us no money whatsoever for any of the consultation processes, and you have to do it on your own. And so we needed help. (Chief Sayers interview 2007)  The unique aspects of Aboriginal title “do not justify a level of legal protection less than what non-Aboriginal proprietary interests receive under Canadian law” (Macklem 2001, 89). Thus, consultation ought to protect Indigenous interest in their traditional lands in the absence of treaties or other management agreements.  2.2.2. Delgamuukw Decision and Consultation Successive Supreme Court of Canada rulings have led to a clarification of the requirement for First Nations to be consulted when resource development projects will take place within their traditional territories. Both the Sparrow (1990) and Delgamuukw (1997) decisions paved the way for the recognition of rights and unextinguished title, and the associated requirements for consultation that were more clearly stated in the later Haida (2004), Taku (2004), and Dene Tha’ (2006) decisions.  43  The breadth of activities identified through which First Nations’ land rights and title can be justifiably infringed for the benefit of majority Canadians is vast. Chief Justice Lamer states in his judgment: …the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this [First] purpose and, in principle, can justify the infringement of Aboriginal title. (Delgamuukw 1997, par. 165)  The 1990 Sparrow decision marked the first instance where the Canadian judiciary recognized the need to consult Aboriginal peoples with regard to impacts on their traditional lands. However, consultation in British Columbia “remained an undisciplined and uncoordinated affair until at least December 1997” with the handing down of the Delgamuukw decision (Penikett 2006, 138). The Delgamuukw decision was considered to mark the potential for the beginning of a new era in relations between newcomers and First Peoples in Canada and British Columbia in particular (McNeil 1998). This ruling resulted from the case brought forward in 1987 by the hereditary chiefs of “two neighbouring Nations, the Gitxsan and the Wet’suwet’en of the Skeena and Bulkley rivers, who sued the provincial government for ownership of over 57,000 square kilometres of their traditional territories in northwestern British Columbia (Campbell et al. 2003, 144).  The Delgamuukw decision, including its definition of Aboriginal title and introduction of oral histories into evidence, was expected to have “far-reaching implications that could 44  lead to the economic and political empowerment of Aboriginal peoples and to a radical restructuring of Canadian federalism” (McNeil 1998, 2) (see Glossary for more on Canadian federalism). This ruling made it clear that First Nations had neither ceded nor lost their title and rights to all or portions of the land in British Columbia, and that consultation is required to accommodate these rights and interests when land and resource-based activities are going to have impacts on this land. Specifically in Delgamuukw, the court stated that the duty of consultation will vary in degree given the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to Aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the Aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an Aboriginal Nation, particularly when provinces enact hunting and fishing regulations in relation to Aboriginal lands. (Delgamuukw 1997, par. 168)  Despite this requirement of Delgamuukw that mere consultation is not sufficient, “subsequent lower court decisions have not held the Crown to requirements that are ‘significantly deeper than mere consultation’” (Macklem 2001, 280). Historically, the position of the Crown courts states that sovereignty to the land is held by the Crown,  45  with Aboriginal rights and title only a burden on that Crown title (St. Catherine’s Milling 1888). 37 The assumption of Canadian sovereignty owes its …origins to a colonization project that assumed that Aboriginal peoples were inferior to European peoples, and, to the extent it fails to recognize Aboriginal forms of sovereignty, the present distribution of sovereignty in North America is unjust. (Macklem 2001, 7)  This concept that Aboriginal rights are simply a burden on overarching Crown title is important. Had the tenets of the Royal Proclamation of 1763 prevailed, rights to land and lifeways would be construed as negative rights, a right to noninterference by the Crown and settlers alike. Since the Crown has subsumed or extinguished Aboriginal title through treaty in many areas of Canada, Aboriginal rights are now described in general discourse as defined as a positive right (a desert to land and lifeways) (see Glossary for Rights). The Royal Proclamation, with its stronger statement of noninterference with First Nations, was written when First Nations’ power was more balanced with small settler populations, and the First Nations role in military issues was valued. Later documents, including the Constitution Act in 1867, gave the Canadian government the juridical power to dominate relations with First Nations peoples (Schouls 2003), which still holds today. Later documents and court cases reframed the discussion in a primarily positive right argument of what is due, and allowed the government the flexibility to determine what constitutes justifiable infringement and therefore decide what is due to First Nations with regard to land. “The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden” (St. Catherine’s Milling 1888, par. 58). 37  46  In addition to the limitations imposed by making Aboriginal rights a positive right, elements of the Delgamuukw decision are limiting and problematic with relation to issues of Aboriginal title. Of particular concern is the allowance for development on Aboriginal lands if deemed necessary for the greater good, which is made up of a nonAboriginal majority. Even the “path-breaking” Haida Nation and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) decisions, […] mark the emergence of a new constitutional paradigm governing Aboriginal rights. This paradigm views section 35 of the Constitution Act, 1982 as the basis of a generative constitutional order — one that mandates the Crown to negotiate with Indigenous peoples for the recognition of their rights in a form that balances their contemporary needs and interests with the needs and interests of the broader society. (Slattery 2007, 285)  This need for balance with broader Canadian society, a non-Aboriginal majority population, may lead to First Nations rights, concerns, and interests being held as secondary to non-Aboriginal interests. Furthermore, as determined by legal judgments, the authority to set out process and goals that carry weight in natural resource decisions currently rests with the Province, yet the Province is under no obligation to reach agreement with the First Nation, as evidenced by several recent court decisions (Haida 2004; Taku 2004). Depending on one’s definition of Aboriginal title, 38 the Province’s position is challenged by the Indigenous peoples who hold unceded title in their traditional territories (Kennedy 2007; Tsilhqot’in 2007).  38  See Glossary for more on Aboriginal title.  47  Despite these limitations, however, the clear statement of a requirement for consultation and accommodation heralded a significant change in the role of First Nations and Indian Bands in land-use decision-making in Canada (Crey interview 2007). British Columbia First Nations who are without treaties are particularly reliant on consultation and accommodation as a mechanism to protect their land and interests (WilliamsDavidson 2005). However, in the decade that has passed since the Delgamuukw decision it is my experience, confirmed through this research, that this vague notion of something “significantly deeper than mere consultation” that is required in many land management decisions (Delgamuukw 1997, par. 168) has yet to be fully described or put into practice consistently in Canada or British Columbia.  2.3. Related Judgments and Declarations Numerous provincial and federal court cases have been heard regarding the clarification of Aboriginal rights, title, and requirements for land-related negotiations. Each case built on, revised, or referred back to the previous cases. The following judgments form the key foundations for the justification for recognizing outstanding Aboriginal title in British Columbia, and the need for strong consultation or negotiation regarding resource management in light of this pre-existing title. While numerous Supreme Court cases have not been summarized here 39, these cases are the cornerstones  For instance, one could include St. Catherine’s Milling and Lumber Co. v. The Queen (1887), 13 S.C.R. 577, Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33. 39  48  of many judgments and the represent the current position of the Crown courts. Furthermore, these case summaries are not exhaustive and focus primarily on the impact the case had on First Nations ability to manage their traditional lands.  The cases included and summarized in the following sections are intended to highlight land-management related aspects of Supreme Court judgments only. First Nations typically view resource extraction or other development projects as an infringement, or a potential infringement, on Aboriginal title within their traditional territories. The requirement for consultation and accommodation currently serves as the primary avenue for First Nations’ participation in resource decisions. Despite the fact that vast tracks of land in British Columbia fall under asserted Aboriginal claim, recent court cases have ruled that the provincial and federal governments can infringe on Aboriginal title rights under a myriad of conditions, as long as the outcomes benefit greater Canadian society and Aboriginal groups are compensated for the loss of their rights or the infringement on their title. However, the decision in Tsilhqot’in 40 (2007) may begin to shift this position to one where Aboriginal title can not be infringed unilaterally because: Aboriginal title land is not “Crown land” as defined by provincial forestry legislation. The provincial Forest Act does not apply to Aboriginal title land. The jurisdiction to legislate with respect to Aboriginal title land lies with the Federal government pursuant to s. 91(24) of the Constitution Act, 1967. The Province has no jurisdiction to extinguish Aboriginal title and such title has not been extinguished by a conveyance of fee simple title. (iv) 40  See section 2.3.9 for more on the B.C. Supreme Court Tsilhqot’in decision (2007).  49  In the absence of treaty agreements that clearly eliminate title, and notwithstanding the potential restrictions the Crown may try to impose to pre-contact use (such as hunting, fishing or trapping that occurred prior to colonization), there is now more complexity and opportunity for creativity in negotiations that put Aboriginal parties in a stronger negotiating position that respects their title. In land-management cases such as those in this research, where negotiations have been more balanced, some optimism is warranted that Aboriginal perspectives and goals may be incorporated into land-use decisions.  2.3.1. Calder Decision, 1973 and Guerin Decision, 1984 In the Calder decision, the Supreme Court recognized that Aboriginal title had not been extinguished. Calder was a turning point which changed our basic understanding of Aboriginal rights and allowed us ‘to move from a framework grounded in imperial history to a framework more open to local history, tradition, and perspectives’ Slattery, “The Organic Constitution” at p. 107. In the Calder case the Nishga [sic] [Nisga’a] people sought a declaration of Aboriginal title to lands their ancestors had occupied and used from time immemorial. The Court split three ways, disagreeing on the result. A majority of the Court suggested that Aboriginal title may exist separately from the Royal Proclamation. Judson J., speaking for Maitland and Ritchie JJ., found that the geographical limitations of the Royal Proclamation meant that it had no bearing upon the question of “Indian title” in British Columbia. (Tsilhqot’in 2007, par. 482-483)  50  In the 1980s, Guerin affirmed the minority ruling in Calder that Aboriginal title is a unique (sui generis) inherent legal right that arises independent of government acts of creation and recognition (Bell 1998, 39). Guerin involved the Musqueaum First Nation and their dispute with the federal government over an unfavourable land lease to the Shaughnessy Golf Club of Musqueam reserve lands to the golf club. The negotiation of the lease and subsequent changes to the terms of the lease were handled by the federal government (Tennant 1990). The Supreme Court of Canada’s Guerin decision clearly affirmed, by majority decision, that Aboriginal peoples’ interest in their lands is a pre-existing legal right not create by the Royal Proclamation, by… the Idndinan Act, or by any other executive order or legislative provision. It does not matter , in my opinion, that the present case is concerned with the interest of an Indian band in a researve rather than with unrecognized title in traditional tribal lands. The Indian (sic) interest in the land is the same in both cases. (Guerin 1984, para. 497)  The “Guerin decision had major practical implications in British Columbia concerning the role of the courts and the means by which Indian groups could protect their interests in the land against the efforts of the province” (Tennant 1990, 222).  2.3.2. Sparrow Decision, 1990 The Sparrow case involved Mr. Ronald Edward Sparrow, a Musqueam First Nation fisherman, who had been charged with fishing with a drift net longer than his Nation’s licence would allow. Put most simply, Sparrow recognized the Aboriginal right to fish and to fish by their preferred method. This ruling indicated that while Aboriginal  51  rights would be subject to conservation measures, they must be “given priority over the demands of other groups” including commercial and sport/recreational fisheries (Campbell et al. 2003, 142). Futhermore, the concept of resource management consultation was first raised in Sparrow. The judgment states that in order to justify infringement on an Aboriginal right (in this case through fishery conservation regulations) that the regulating authority must determine if “fair compensation is available; and whether the aboriginal group in question has been consulted (Sparrow 1990, 7).  Since the recognition and affirmation of Aboriginal rights in the Constitution Act in1982, the opinion of the Supreme Court in R. v. Sparrow has been the primary source of legal principles for the identification and definition of Aboriginal constitutional rights. The Sparrow decision also reaffirmed the concept of fiduciary duty 41 on behalf of the Crown in its dealings with Aboriginal peoples, Aboriginal title and Aboriginal rights. The ruling indicated that “the concept of fiduciary duty compels specific and honourable objectives and conduct in Crown dealings with Aboriginal people” (Bell 1998, 38). Sparrow is one of two landmark decisions rendered since the confirmation of commonlaw Aboriginal title in the Calder case, the other being Guerin, 1984.  The concept of fiduciary duty was first introduced in the original Guerin case heard in the Federal Court (1982), it appeared in the Constitution Act, 1982 and was subsequently affirmed in the Supreme Court Guerin judgment, 1984. 41  52  2.3.3. Van der Peet Decision, 1996 The Van der Peet decision is well known for including and describing the test as to what constitutes an Aboriginal right. In this case, the courts stated that Aboriginal rights did not extend to commercial fishing as it was not part of their distinctive culture. “[I]n order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right” (Van der Peet 1996, 4). The Court developed an “integral to distinctive culture” test to determine if a given practice was part of their constitutionally protected rights. This test described in Van der Peet essentially required the following: •  Aboriginal peoples’ perspectives must be taken into account (1996, par. 49)  •  Courts must identify “precisely the nature of the claim” being made (1996, par. 50).  •  The practices, customs and traditions must have been an integral part of the distinctiveness of their culture prior to colonial contact, or a modern version of such practice (1996, par. 54).  •  The practices must be of central significance to the society (1996, par. 55).  One aspect of Van der Peet has particular impact on future land rights and thus land management direction, that Aboriginal rights are restricted to pre-contact activities, although allowed to evolve and are not frozen in time. The concept of continuity is also the primary means through which the definition and identification of aboriginal rights will be consistent with the admonition in Sparrow, supra, at p. 1093, that "the phrase ‘existing aboriginal rights' must be interpreted flexibly so as to permit their evolution over time". The concept of 53  continuity is, in other words, the means by which a "frozen rights" approach to s. 35(1) will be avoided. Because the practices, customs and traditions protected by s. 35(1) are ones that exist today, subject only to the requirement that they be demonstrated to have continuity with the practices, customs and traditions which existed pre-contact, the definition of aboriginal rights will be one that, on its own terms, prevents those rights from being frozen in pre-contact times. The evolution of practices, customs and traditions into modern forms will not, provided that continuity with pre-contact practices, customs and traditions is demonstrated, prevent their protection as aboriginal rights. (Van der Peet 1996, par. 64) 2.3.4. Delgamuukw Decision, 1997 The Delgamuukw case (see also Section 2.2.2 Delgamuukw Decision and Consultation) involved Delgamuukw, also known as Earl Muldoe, a Gitksan Hereditary Chief, suing the province “on his own behalf and on behalf of all the members of the Houses of Delgamuukw and Haaxw, and others suing on their own behalf and on behalf of thirtyeight Gitksan Houses and twelve Wet’suwet’en Houses…” (1997). The appellants claimed “claimed separate portions of 58,000 square kilometres in British Columbia” (Delgamuukw 1997, 2). The first, provincial-level Delgamuukw case was heard in Smithers, British Columbia in 1987. “In the trial, the chiefs sought recognition of ownership and jurisdiction. B.C. and Canada counterclaimed the Gitxsan had no rights, title or interest in the territory. If there was evidence for a claim, said the province, it should be in the form of compensation from the federal government” (Gitksan Chiefs Office n.d.). The trial judge, Judge Allen McEachern, has been widely criticized for his conduct of the trial and ruling, both of which contained colonial overtones of racism and prejudice against the appellants. He dismissed the appellant’s claims and claims for damages. In addition to the basic ruling, McEachern passed racially charged 54  judgment on the lives of the Gitksan and Wet’suwet’en, stating they were “nasty, brutish, and short” prior to the arrival of the colonizers (Daly 2005, 10). A United Nations report called the ruling “ethnocentric”, likely a polite reference to racism; the Gitksan “appealed the Delgamuukw case to the Supreme Court of Canada in an attempt to wipe Judge McEachern’s racist findings from the record books and also to try to establish a new test by which the courts decide aboriginal title” (Gitksan Chiefs Office n.d.).  The Supreme Court of Canada Delgamuukw decision provided new guidance in areas related to title, that would have a significant effect on the degree to which First Nations must be consulted in relation to projects and activities that may effect their territories (1997). The Supreme Court of Canada ruling confirmed that Aboriginal title does exist and is a right to the land itself, not just the right to hunt, fish and gather. Although the appeal to the Supreme Court of Canada was transformed primarily into an Aboriginal title claim, the findings of the court are important in assessing future recognition of rights. The judgment gives direction about (a) the relationship between Aboriginal rights and Aboriginal title; (b) the weight to be given to oral history in the proof of Aboriginal claims; (c) the importance of continuity from historical times to the present; (d) the endorsement of the Gladstone 42 case and elaboration on legitimate justifications for interfering with Aboriginal rights; (e) the power of the province to extinguish Aboriginal rights ; and (f) the application of the Van der Peet/Pamajewon 43 analysis to selfgovernment. (Bell 1998, 58)  Gladstone (2005) was heard in the Supreme Court of Canada. Gladstone was also heard in the British Columbia Supreme Court in 1996, prior to the Delgamuukw decision in 1997. 43 Van der Peet (1996). Pamajewon (1996). 42  55  These aspects of Delgamuukw strengthened the case that many First Nations were attempting to make – that their traditional territories had not been ceded to the Crown through treaty and thus, they ought to be able to exert some jurisdiction over their lands. Further, the decision strengthened the ability of Indigenous peoples to apply oral history and Indigenous laws to Crown court proceedings in order to support their cases for Aboriginal rights and title. Delgamuukw is discussed and referenced throughout this dissertation, and particularly in Section 2.2.2 Delgamuukw Decision and Consultation.  Delgamuukw also held that Aboriginal title is a right to the land itself, including the minerals (and oil and gas) beneath it (1997). Aboriginal title also includes the right to make land-use decisions, but does not permit a First Nation community to use their lands in such a manner that destroys the relationship the community has with their lands, which could include the construction of open-pit mining, for instance. This restriction of use presents an inherent limit to the uses under title, and raises the question whether First Nations are entitled to freely develop the resources on their territories, particularly given the complication of the Van der Peet test, which limits Aboriginal rights to pre-contact activities, or pre-contact activities that have evolved (Van der Peet 1996). 44  “A distinction must be made between (1) the recognition of a general right to occupy and possess ancestral lands and (2) the recognition of a discrete right to engage in an aboriginal activity in a particular area. The latter has been defined as the traditional use, by a tribe of Indians, that has continued from precontact times of a particular area for a particular purpose. By contrast, a general claim to occupy and  44  56  This inherent limit of Delgamuukw also implies that exercise of Aboriginal title rights is dependent on healthy ecosystems, where the environment is able to support the community’s continued traditional use and occupation of their Aboriginal title lands. In some cases, First Nations have been encouraged to negotiate settlements that define the land as “fee simple,” allowing for more flexible uses of the land but then putting their activities squarely under provincial regulation. 45 But at present, very little land is First Nation’s fee simple, and most land in British Columbia is unceded.  2.3.5. Taku Decision, 2004 In the Taku case, the Court reviewed a situation where there had been an environmental assessment of a proposed mining project that involved the Taku River Tlingit First Nation. Here are elements of the consultation process which the Supreme Court confirmed, in that case, constituted adequate consultation: •  •  • •  There were multiple meetings between the First Nation, corporation and environmental assessment office staff to set up and implement a process which fully included the First Nation in the environmental assessment process. First Nation members participated on the overall environmental assessment Project Committee, and served on subcommittees dealing with concerns of particularly impact on their community. Financial assistance was provided to ensure that the First Nation could participate fully in the process. The First Nation's views were thoroughly and explicitly identified in the environmental assessment report, including where there were points of  possess vast tracts of territory is the right to use the land for a variety of activities related to the aboriginal society’s habits and mode of life” (Delgamuukw 1997, 11). 45 Dawn Mills, personal communication, March 2006.  57  • •  •  •  disagreement between the First Nation and the industry proponent, and those views were put before and considered by the Minister. Mitigation strategies were developed to address the concerns of the First Nation. The First Nation's approval was sought for the appointment of which experts conducted traditional land-use studies and archaeological and ethnographic studies which assessed the impacts of the development. When the First Nation had concerns about the adequacy of one of the expert's reports, it was sent back for revision to address those concerns. The industry proponent responded, with detailed information, to the First Nation's written and oral requests for information about impacts on fish, wildlife, terrain sensitivity and other impacts. The First Nation was expected, after the environmental assessment process, to participate in long-term resource management strategies for the area, in the development of baseline data to track the impacts of the development, and in decision-making regarding the decommissioning of the project. In addition, there was a requirement that the First Nation would be consulted about any subsequent permitting, approval and licensing processes that were part of the overall project, but which would occur after the environmental assessment itself.  The Taku River Tlingit case… showed what some of the components of adequate consultation are where there is a serious, though unproven, Aboriginal title claim. It also shows that environmental assessment processes can be part of the way in which the duty of consultation is met, but the consultation obligation is not finished when the environmental assessment process is finished. There is an on-going consultation duty which will arise, for instance, in long term resource management and whenever new permits and licences associated with a project arise. (largely quoted from Jacobs 2004)  2.3.6. Haida Decision, 2004  2.3.6.1.Background Haida Gwaii is an archipelago of more than 150 islands located off the northwest coast of the province of British Columbia. Approximately 6,000 Indigenous and nonIndigenous people call the islands home. The Indigenous people of Haida Gwaii, 58  represented by the Council of the Haida Nation (CHN), have strongly argued their right to govern the lands and resources of the islands and waters that comprise their traditional territory. The Haida are participating in the BC Treaty Commission process but had stalled at Stage 2 (readiness of the parties) in 2005. The CHN is preparing to put forward a case for title for the islands but are contemplating an alternative process, to avoid the courts, through reconciliation discussions with the Province of British Columbia (CHN vice-president Arnie Bellis, personal conversation, September 2006).  A number of key court decisions have involved the Province, international forest company Weyerhaeuser, and the Haida in the past five years. These decisions include: •  Haida Nation v. B.C. and Weyerhaeuser [February 2002] (BC Court of Appeal)  •  Haida Nation v. B.C. and Weyerhaeuser [June 2002] (BC Court of Appeal)  •  Haida First Nation v. BC and Weyerhaeuser [Nov. 2004] (Supreme Court of Canada)  At the same time that the CHN is working towards title recognition and increased comanagement of their traditional territory, decades of logging, commercial fishing and other resource development practices have left the Haida’s resources in a state of severe decline. In a presentation at the University of British Columbia in 2005, Guujaaw 46, the elected president of the Council of the Haida Nation, expressed his concern for the hunting and fishing abilities of future generations due to the depleting fish stocks and degraded habitat (Guujaaw 2005). Only ten percent of the large old-growth forests still 46  Guujaaw goes by this single name, which means drum in the Haida language.  59  exist on Haida Gwaii (Williams-Davidson 2005), and there is a need to sustainably protect fish and game. “We have responsibilities to the land, and responsibilities to the next generation, that come with that governance” (Williams-Davidson 2005, n.p.).  In statements made at University of British Columbia in 2005, Guujaaw expressed his frustration with the government’s interpretation of upholding the honour of the Crown in consultation. Even since the Delgamuukw decision, that clearly required consultation with First Nations, “in every instance they [the province] fall back to the lowest common denominator in their approach to us” (Guujaaw 2005, n.p.). The court has described the provincial view of honour as impoverished (Guujaaw 2005) and “not honourable” (Haida 2004, par. 27). Even as the courts were “scolding this government,” the province was moving further away from its duty to fairly discuss issues with the First Nations (Guujaaw 2005, n.p.).  In the notable Supreme Court judgment of Haida Nation v. British Columbia (Minister of Forests) (Haida 2004), the court ruled that the Haida had a very strong case for title and rights and that logging had a strong potential to infringe on those rights (Haida 2004, par. 72). The judgment also stated that the consultation and accommodation mechanisms set up by the province and Weyerhauser did not constitute meaningful consultation. The five measures that the province held up as examples of consultation and accommodation were: protecting culturally modified trees, providing cedars through the permit system (which was only one percent), protecting cedar seedlings 60  from deer browsing, implementing new logging methods (variable retention), and also deferring logging in Haida protected areas. All these measures taken together were not significant enough to constitute meaningful consultation according to the courts. Haida lawyer Terri-Lynn Williams-Davidson said the most significant outcome of the Haida case was an understanding that “what needs to happen is protection of Aboriginal interests in the interim [while rights and title cases are awaiting hearing and ruling]…. so we actually have something to negotiate in treaties or in negotiation” (WilliamsDavidson 2005).  The court has also ruled that the bare minimum for consultation, where there is a weaker case for title and rights, is that the government has to substantially address the First Nation’s concerns. However, meaningful consultation does not give First Nations a veto power; veto can only be gained through proving title, and sometimes not even then. In a situation where there is a strong title case and high infringement, WilliamsDavidson said what is required is “formal participation in the decision-making process” (Williams-Davidson 2005, n.p.).  2.3.6.2.The Decision The Haida case is considered significant because the ruling showed that, particularly given a strong claim to land title, consultation had to be meaningful and uphold the honour of the Crown. The Court concluded on three major points in the Haida case:  61  [The Crown] does have an obligation to consult prior to the establishment of the asserted rights. Third parties, however, do not. …[The] obligation to consult may carry with it an obligation to accommodate, or may not. That depends on what is discovered through the consultation process. [And where] …accommodation is required, the Aboriginal interest must balance with other interests. The Aboriginal claimants do not have a veto over government action. (Hunter 2005, 2) Further, the Court described some principles regarding the duty to consult Indigenous peoples when their land interests may be affected:  • •  •  •  •  Both the federal and the provincial Crowns have a duty to consult with First Nations who have asserted Aboriginal title or Aboriginal rights. The consultation duty is triggered when the Crown knows (or ought to know) that Aboriginal rights or Aboriginal title may exist, and is considering actions which may affect those rights. Consultation obligation is an ongoing duty, not a single meeting or series of meetings, that lasts for the length of time when an Aboriginal right is affected. The duty to consult is always [emphasis in original] triggered where a claimed Aboriginal title or other right is affected, but the content of the duty will vary. What degree of consultation will be required will depend on the strength of the case for Aboriginal title or rights, and on the degree of seriousness of the impacts to the Aboriginal community affected. Where the case is strong and the impacts potentially serious, the duty will include the duty to accommodate. The legal source of the duty to consult and accommodate, where the Aboriginal title or right is not yet proven, is the found in the need to uphold the so-called honour of the Crown. (modified from Jacobs 2004, n.p.)  The interpretation of Haida and Taku led the British Columbia Treaty process to proclaim the following: This duty [to consult and accommodate] arises from the need to deal with Aboriginal rights in the interim prior to those rights being addressed through a treaty or court decision. Government cannot run roughshod over Aboriginal interests. And First Nations do not have a veto over what can be done with land pending final proof of claim. The consultative process must be fair and honourable, but at the end of the day, government is entitled to make decisions even in the absence of consensus. (BCTC 2007) 62  2.3.6.3.Haida Land Use Agreement British Columbia's most comprehensive example of co-management in land use planning, the Haida Gwaii/Queen Charlotte Islands Framework Agreement (Ministry of Sustainable Resource Management and the Council of the Haida Nation 2003) and the subsequent Haida Gwaii Strategic Land Use Agreement (The Council of the Haida Nation and the Province of British Columbia 2007), was finalized and signed by both parties in 2007. The aim of this land use plan is to balance community, economic and environmental well-being while maintaining spiritual and cultural values. In the late 1990’s, the Haida refused an attempt by the British Columbia government to initiate a land and resource management planning process. In April of 2003, the Council of the Haida Nation agreed with the government to co-create and co-manage a land management process (BC Ministry of Sustainable Resource Management (MSRM) and the Council of the Haida Nation 2003). This agreement was expected to provide equal power to the Haida Nation over all aspects of land use management in Haida Gwaii (Council of the Haida Nation 2005). For matters of dispute, two votes each were given to the Haida and the British Columbia government, with tie votes going to a neutral mediator (MSRM and the Council of the Haida Nation 2003). During this process, First Nations knowledge, information, practices and values were to be incorporated in a consensus-driven decision process. This case study is currently the best example in British Columbia of a move towards power balance between a First Nations group and the government for land management outside of historical colonial reserves.  63  2.3.7. Marshall; Bernard Decision, 2005 The Supreme Court decisions R. v. Marshall and R. v. Bernard (2005) were heard together and are termed Marshall; Bernard. The case involved Mi’kmaq logging activities in the province of Nova Scotia and New Brunswick. While the activities related to these cases did not occur in British Columbia, the judgment is particularly relevant for the guidance it provided on the Crown’s position relative to post-contact resource use. However, it should be noted that these cases dealt with a situation where historic treaties 47 were signed and the limitation of the Aboriginal people to pre-contact uses was an interpretation of that historic treaty. This appeal deals with two cases. In Marshall, 35 Mi’kmaq Indians were charged with cutting timber on Crown lands in Nova Scotia without authorization. In Bernard, a Mi’kmaq Indian was charged with unlawful possession of spruce logs he was hauling from the cutting site to the local saw mill. The logs had been cut on Crown lands in New Brunswick. In both cases, the accused argued that as Mi’kmaq Indians, they were not required to obtain provincial authorization to log because they have a right to log on Crown lands for commercial purposes pursuant to treaty or aboriginal title. (Marshall; Bernard 2005, 5)  2.3.8. Dene Tha’ Decision, 2006 Attempts to clarify what the duty to consult entails are ongoing in a number of different forums. As part of the Dene Tha’ (2006) Federal Court of Canada case, the federal government is now seeking clarity, through appeal, about what their duty to consult entails. This case involved a consortium of oil companies, led by Imperial Oil, who are planning to build a gas pipeline from Alberta to the Northwest Territories on the 47  Mi’kmaq Treaties of 1760-61.  64  Beaufort Sea. The pipeline route crosses many traditional territories, including a portion of the Dene Tha’ First Nation’s territory. The portion of Dene Tha’ territory in question lies in the southwestern part of the Northwest Territories.  The Dene Tha’ First Nation (DTFN) filed an application for judicial review in the Federal Court of Canada in May 2005. Among other requests, the DTFN were seeking a statement from the Court that the various federal Ministers 48 involved in the case had a “duty to consult with the Nation with respect to the preparation and design of an environmental and regulatory review process related to the Mackenzie Valley Pipeline project” (Agreement July 2007) 49. In November 2006, the court ruled that the federal government failed to consult with the Dene Tha’ and that consultation around the pipeline should be put on hold (Dene Tha’ 2006).  In July 2007, Canada and the Dene Tha’ First Nation signed an out-of-court agreement (see previous footnote). In this agreement, the Dene Tha’ agreed to pursue no further court action against the Mackenzie Valley pipeline project. In addition to a financial settlement with the Dene Tha’, the agreement sets out a protocol for the federal government to consult with the Dene Tha’ on the pipeline project and connecting facilities (Indian and Northern Affairs Canada 2007b). The agreement goes on to say  48 Ministers of: the Environment, Fisheries and Oceans, Indian Affairs and Northern Development, and Transport. 49 The agreement, titled “Canada – Dene Tha’ Mackenzie Valley Gas Project and Connecting Facilities Settlement Agreement” is not available online, but was emailed directly to me by the Minister’s of Indian Affairs office in spring of 2008.  65  that this protocol will also apply to consultation for any future projects requiring federal authorization.  More recently, the federal Government of Canada released guidelines for federal officials to fulfill their obligations for consultation with Aboriginal peoples (Government of Canada 2008). This guideline document includes very basic steps for conducting consultation and also outlines the federal government’s principles for consultation. More discussion of provincial and federal consultation guidelines can be found in Section 2.5, Existing Consultation Guidelines.  The agreement document does not directly address the unique situation in British Columbia or other areas of Canada with outstanding Aboriginal claims to title. Rather, it only states the accommodation may, and by inference may not, be required in a situation where a section 35 Aboriginal right may be infringed. Accommodation may be required where there is a strong claim to a section 35 right and a potentially significant adverse impact on the claimed right. The courts have said that consultation would be meaningless if it excluded from the outset any form of accommodation. (Government of Canada 2008, 52)  A later portion of the guidelines also goes on to state that in addition to accommodation, consent may be required from the Aboriginal group. An ‘established’ right or title may suggest a requirement for consent from the Aboriginal group(s). As this is not always the case, it is important to consult legal counsel when making the assessment. (Government of Canada 2008, 53)  66  The Agreement between the federal government and the Dene Tha’ does not address the deeper and more difficult issue of how much effort must be placed on reaching meaningful consultation and accommodation. Given that the agreement now sets the stage for all future consultation between the federal government and the Dene Tha’, I expected the document to lay out a thorough and meaningful protocol with which future negotiations will take place. I expected there to be a reference or nod to Indigenous principles or traditional decision-making, and some mention of Indigenous values or knowledge. However, the document outlines what looks like typical, Western-style consultation or negotiation process and principles typically used in general business negotiations.  Indian Affairs and Northern Development Minister Jim Prentice, in a statement on his website said: With this agreement, we have demonstrated that Canada is committed to meaningfully consult with Aboriginal groups and, where appropriate, to accommodate their concerns with respect to how the Mackenzie gas project may affect their communities. Yet, after the Federal Court ruled in favour of the Dene Tha’ this past November 2007, the government filed a notice of appeal the next month. This appeal gave the appearance that there is a lack of commitment or some uncertainty remaining on the part of the federal government around their position on what constitutes meaningful consultation. In January 2008, the Supreme Court rejected the federal government’s request for an appeal. In a statement, the Dene Tha’ applauded the Federal Court decision. 67  The decision of the Federal Court of Appeal is yet another strong message to governments across Canada to stop minimizing the constitutional obligations owed to First Nations, including the duty to consult. (Dene Tha’ 2008, n.p.)  2.3.9. Tsilhqot’in Decision, 2007 The 2007 Tsilhqot’in case involved the Tsilhqot’in First Nation v. British Columbia and was heard in the Supreme Court of British Columbia. The Tsilhqot’in First Nation sought declaration of Aboriginal title to a portion of their asserted traditional territory. The case was brought forward because of forestry activity in the Tsilhqot’in territory. While the judgment did not include a clear declaration of title as sought by the Tsilhqot’in, the decision did state that Tsilhqot’in Aboriginal title does exist “inside and outside the Claim Area” (Tsilhqot’in 2007, iii) and had not been ceded to the Crown.  While the Tsilhqot’in judgment holds many groundbreaking elements for First Nations in British Columbia, one element that remained similar to previous judgments was that of the limitation of land use to pre-contact activities. The judgment somewhat wrongly states that In Marshall; Bernard, McLachlin C.J.C. suggested that the Court look to the precontact practice and then translate that practice into a modern right. Through this approach, some (but not all) of an Aboriginal group’s contemporary interests will be considered. (Tsilhqot’in 2007, par. 1361) The judgment goes on to question the limitations of such pre-contact definitions of rights, but also asserts:  68  The narrow role this court can play in defining Tsilhqot’in Aboriginal rights in the Claim Area lies in an application of the jurisprudence to the facts of this case. I can only hope that it will assist the parties in finding a contemporary solution that will balance Tsilhqot’in interests and needs with the interests and needs of the broader society. (Tsilhqot’in 2007, par. 1369)  The judgment confirms the presence of the Tsilhqot’in people for over 200 years in the area under claim in the case. The judgment goes on to ask questions that are relevant in unceded territory in British Columbia in general. Based on this recognition, […] how are the needs of a modern, rural, Indigenous people to be met? How can their contemporary needs and interests be balanced with the needs and interests of the broader society? That is the challenge that lies in the immediate future for Tsilhqot’in people, Canada and British Columbia. (Tsilhqot’in 2007, par. 1378)  The province of British Columbia has since launched an appeal of the case. See Section 2.1.6 regarding Aboriginal title for more on the Tsilhqot’in decision.  2.3.10. Wii’litswx Decision, 2008 During the time of writing this dissertation, court decisions were handed down in cases relevant to this research. One such case was the September 2008 British Columbia Supreme Court ruling in the Wii’litswx case. This case involved the Hereditary Chiefs of the Gitanyow Nation versus the Province of British Columbia (Ministry of Forests) in a dispute over the sale of a partially Crown-owned forest company (Skeena Cellulose). The sale of the company also involved the transfer of forest licences to a private  69  company. The Chiefs were concerned about the transfer of these licences without adequate consultation and accommodation of the Gitanyow.  The Gitanyow people’s territory is located in the northeastern interior region of British Columbia. Their culture and ability to support themselves have been negatively impacted by logging activities in their territory. This case, and preceding related cases, ruled that “Gitanyow and Gitxsan each have a good prima facie claim of aboriginal title and a strong prima facie claim of aboriginal rights to at least part of the areas included within the lands covered by the Forest Licence” (Wii’litswx 2008, par. 87). Furthermore, the decision stated that the Crown’s obligations for consultation and accommodation were broad according to the strength of the title claim and that the overall accommodation offered for the licence changes was not reasonable nor adequate (Wii’litswx 2008). The importance of this decision lies primarily in its further defining the honour of the Crown with regard to consultation, and the obligation that strategic decisions also require consultation when the strategic decision may impact a First Nation’s claimed traditional territory.  2.3.11. United Nations - Rights of Indigenous Peoples Based on this history and the guidance provided by current case law, the Indigenous nations in Canada require clearer commitments from the federal government to recognize the rights and title of Indigenous people and ultimately to ensure that development proposals and approvals that affect lands include a truly meaningful 70  approach to negotiation with First Nations peoples’ about their rights and interests. In the decades during which treaties have been absent in British Columbia, lands and resources have been depleted in many areas, leaving less and less land available for treaty negotiation and ultimately for Indigenous governance. These concerns are echoed in the recently signed United Nations Declaration on the Rights of Indigenous Peoples (2007). The declaration states that United Nations representatives are Concerned (emphasis in original) that Indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests…  In the United Nations Article 25, the declaration goes on to say that: Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard. And finally, the most strongly worded commitment to recognizing Indigenous peoples' rights to land and resources can be found in Article 26: 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.  These United Nations’ declaration Articles have stronger wording related to Indigenous rights to manage traditional lands than those found in Delgamuukw and other Canadian  71  court cases (e.g., Haida 2004 and Taku 2004). Furthermore, while s. 35 of the Constitution Act, 1982 provides protection for Aboriginal and treaty rights, this protection has not been clearly extended, either in courts or in practice, to Indigenous peoples’ right to self-government and full participation in land-related decision making within their territories. The United Nations’ Articles point to the idea that truly meaningful consultation, co-operation, and just redress are required for activities that affect the traditional territories of Indigenous peoples.  At the time of writing, only three United Nations member countries have refused to endorse the United Nations declaration; these countries are Canada, the United States of America, and New Zealand. Notably, these are three countries with somewhat similar histories of primarily British colonization, treaty making, and outstanding land claims and title issues. Initially, Australia had also refused to support the declaration, but reversed this decision on April 3, 2009 (Macklin 2009).  2.4.  Land Management in British Columbia  2.4.1. Jurisdictional Breakdown for Resource Management Canada is a federal nation with governmental powers divided between two orders of government: federal and provincial (see Glossary for more on Canadian federalism). Some tertiary authority is delegated to other levels of government including municipal or administrative. Canada is made up of ten provinces and three territories. In order to 72  convince each of the provinces to join the federation in the 19th century, Canada developed a system of land jurisdiction that left primary responsibility for land and resource management to the provinces, including management of Crown lands (land deemed to be owned by the colonial government).  However, the impacts of resource management and development decisions have the potential to affect a wide range of people and groups who are often termed stakeholders in Western regulatory processes. These impacts can include environmental degradation such as lost terrestrial habitat, dammed aquatic habitat, increased road access to otherwise inaccessible habitat areas, and water and air pollution; social and community impacts such as increased population, local development, temporary employment boom; and economic impacts, both positive and negative. Those most directly impacted include local and regional people, their communities and culture, and the natural environment.  First Nations peoples are more than impacted third-party stakeholders in the British Columbia resource sector; they hold Aboriginal rights and title to all, or some portion, of their settled or asserted traditional territories as recognized by s. 35 of the Constitution Act, 1982. In light of outstanding title, Aboriginal rights, and Treaty rights, First Nations have, or ought to have, a primary role in the governance of resource management in British Columbia. Secondary actors could include a variety of third-  73  party stakeholders that hold no governance or legal role in the development process, including non-governmental organizations (NGOs).  Thus, the resource use sector in Canada involves four primary actors, each with their own interests, responsibilities and goals. These primary actors are: •  The provincial governments as resource “owners”, managers, and representatives of the majority public interests;  •  The federal government in their role as responsible actors for “Indians and lands reserved for Indians” (Constitution Act 1867, 91 (24)), and environmental issues that have national scope: federal Environmental Assessment if triggered, endangered species, transportation, oceans, and anadromous fisheries; 50  •  First Nations as holders of Aboriginal rights and title, with livelihoods and culture tied to the land; and  •  Private sector companies (in the case of private sector developments).  Local governments also have a specific permitting and, possibly, planning role that will not be discussed here since the duty to consult with First Nations rests with the Crown  In Canada, the federal government holds authority over aspects of natural resourcemanagement by way of: “Indians and land set aside for Indians” (via the Indian Act 1985); potential impacts to fish or marine species (Fisheries Act 1985) or ocean waters (Oceans Act 1996); potential impacts to endangered species (Species at Risk Act 2002) or migratory birds (Migratory Birds Convention Act, 1994). In the first instance, the federal government as a representative of the Crown holds a special responsibility to ensure that honourable dealings are conducted with regard to Aboriginal rights and title. Other Acts can also trigger federal participation in provincial land-management issues. 50  74  (federal and provincial governments) and the power of approval for large projects often rests largely with the provincial or federal government. 51  Balancing these actors’ varied interests and jurisdictions in land use is typically sought through a consultation or co-management process. Co-management processes are typically developed where treaty rights exists (e.g., Nisga’a First Nation, James Bay and Northern Quebec) or strong cases for claim have been established (e.g., Haida, ‘Namgis, and Wuikinuxv First Nations in British Columbia). However, in areas of unceded land and existing Aboriginal title, which is the major part of land in British Columbia, consultation is generally the primary vehicle for First Nations participation in resource management. There are instances where co-management agreements and interim agreements are put in place, but these are not considered ideal. As described by Doug Aberley, Director of Treaty Negotiations Resource Department for the ‘'Namgis First Nation, “They’re not a solution to the issue of power, but they provide a short-term benefit…” (Aberley interview 2007).  As evidenced by legal judgments in British Columbia (Haida 2004; Taku 2004), authority and the power to determine the process and the goals that carry weight in resource51 Local non-Aboriginal governments (municipalities and regional districts) also have a role to play through regional planning, representing local labour pools and contractors, zoning and permitting processes, however their responsibilities for land regulation and consultation with First Nations are secondary to provincial and federal governments. Local non-Aboriginal government goals will not be distinguished in this work. Further, the public and local community interests are sometimes represented by non-government organizations (NGOs), but will be framed in this paper under the interests of the provincial or federal government.  75  based decision-making primarily rests with the Province. Requirements for licencing and approvals are typically outlined at a very high level through provincial guidelines or Acts. For example, the primary regulatory process for many development projects in British Columbia occurs under the Environmental Assessment (EA) Act. Such projects could include: •  New or redeveloped mine projects.  •  Energy projects greater than 50MW installed capacity.  •  Development projects with the potential to impact fish-bearing waterways.  The various provincial ministries responsible for individual jurisdictions in British Columbia often place little emphasis on the inclusion of First Nations in their existing guideline documents. The British Columbia Ministry of Energy, Mines and Petroleum Resources (BCMEMPR) provides proponents with a guide to permitting steps, where neither consultation nor First Nations are shown in a figure depicting the Summary of Mines Act Permit Review Sequences (see BCMEMPR 1998). In a flow chart that depicts the British Columbia Environmental Assessment (EA) process, consultation with First Nations is shown as input to three stages in the EA approval process: 1) prior to Application, 2) during the 30 – 75 day application review period, and 3) during the 45 to 60 day project report review period (BCEMPR 1998). Proponents are required to invite First Nations to be part of an overall Project Review Committee. The time limitations for review, as described as a firm requirement of the 76  EA process, have significant impact on First Nations’ ability to participate meaningfully, an issue that will be discussed more fully in later sections.  Permits for construction and operation of a large development project would typically trigger this Environmental Assessment (EA) process, which would involve local governments and First Nations input. Before the EA process begins, there is an application phase and qualifying test to ensure that a company has the basic requirements to proceed, operate and complete a project. Similar to the ruling in the Dene Tha’ case (Dene Tha’ 2006) that states the need for early involvement, it is during this pre-application phase when initial engagement with First Nations governments ought to occur in order to include their perspectives, knowledge and concerns prior to the planning and development process being established and underway.  No language is provided in the British Columbia Environmental Assessment (EA) process guidelines stating that First Nations consultation must be adequate or meaningful, or that adequate and meaningful agreements with First Nations must be reached prior to Ministerial approval. This lack of clarity in the EA leaves open to question what extent the goals and objectives of First Nations will be considered in the development consultation process in British Columbia.  77  2.4.2. The New Relationship and Land Management in British Columbia We have seen the consequences of shattered hope spawned by over a century of betrayal, denial and negligence by governments of every stripe. There are no more excuses. 52 (Premier of the Province of British Columbia, Gordon Campbell, statement in the legislature, May 4, 2006.)  Over the past five years, British Columbia’s current conservative Liberal government has undergone a swift change in its approach to dealing with First Nations. In 1998, Gordon Campbell, the then leader of the opposition and now leader of the provincial government, protested the signing of the Nisga’a Treaty on the grounds of unfair racebased preferential treatment for Indigenous peoples that created new rights not covered in the Constitution Act (Canadian Broadcasting Corporation (CBC) 1998). After gaining majority power, the Liberal government created a province-wide referendum in 2002 about treaty issues. Many Indigenous and non-Indigenous people refused to participate on the grounds that it was racist, unbalanced fear mongering which perpetuated the idea of the tyranny of the majority. First Nations leaders called the  52  Excerpt from Premier Campbell’s statement in the legislature: We have seen the consequences of Canada’s collective political failure to its first citizens. We know the toll it has taken on Aboriginal children and families – and there are no more excuses. We have seen the consequences of shattered hope spawned by over a century of betrayal, denial and negligence by governments of every stripe. There are no more excuses. We have seen the consequences of confrontation, litigation and opportunities lost. We know too well the consequences of frustration, anger, mistrust and despair. There are no more excuses. So I say to the federal government – this is Canada’s moment of truth… (2006)  78  referendum “divisive and said it could spark anti-native racism in the province” (CBC 2004, 1). They called “for a boycott of the referendum, encouraging voters to spoil their ballots or send blank ballots to native bands for disposal” (CBC 2004, 1).  The controversy around the referendum and other high-profile First Nation-related issues increased the willingness of British Columbia’s three major Aboriginal organizations 53 to work together and lobby the government for a new direction. The Haida Supreme Court case results in 2004 provided added impetus for the government to meet with the newly formed First Nations Leadership Council. Resulting from these discussions was the New Relationship document of 2005 (Government of British Columbia et al. 2005). The New Relationship is an unsigned, undated document that outlines in broad strokes the new visions and shared aims of the province and First Nations in British Columbia (Government of British Columbia et al. 2005). Significantly, the statement of vision recognizes that “the right to Aboriginal title ‘in its full form’” includes the right for the community to make decisions about land use and create political structures to do so (Government of British Columbia et al. 2005, 1). Each party states their goals separately and recognizes the other’s aims. Common ground can be found between First Nations’ social goals, goals for economic self-sufficiency, and for ecologically sustainable development, and the provincial aims for a healthy, well educated population, with environmentally sound development creating jobs for  Union of British Columbia Indian Chief, the First Nations Summit and the National Assembly of First Nations. 53  79  the province (Government of British Columbia et al. 2005). General principles and action items outline their intentions to achieve shared decision-making and create the financing, resources, institutions, frameworks, efficiencies and dispute resolution mechanisms required to achieve co-operation through “practical and workable arrangements” (Government of British Columbia et al. 2005, 3).  In the two shared sections of the document, Vision and Action Items, there is a strong focus on land use and land management, which recognizes the centrality of land to First Nations issues in British Columbia, and the existing provincial jurisdiction (versus federal) for the major portion of land and resource management in British Columbia. In large part, this Relationship came in response to recent court decisions which include the Province as a responsible party in meaningful consultation and accommodation with First Nations when Aboriginal rights and title are potentially infringed by activity in their territories (Haida 2004; Taku 2004). Given that Aboriginal title claims cover all areas of the province, the government recognizes that thousands of individual consultation processes may be required to satisfy this requirement, which could slow resource extraction and development if disputes were to be settled in court processes (Morris 2006).  In many respects, the Province’s openness for a new dialogue and change is reflective of past motivations by federal and provincial governments to reach land agreements with Indigenous peoples in Canada. The 1975 James Bay and Northern Quebec Agreement 80  was initiated as a result of protests over the massive hydroelectric projects in northern Quebec, and the 1984 Inuvialuit land claim agreement was designed to facilitate Beaufort Sea oil development (Penikett 2006). “Wherever there was a mega-project pending, national governments rushed to clear Aboriginal title” (Penikett 2006, 6). In a similar vein, unresolved Aboriginal title issues present an impediment or uncertainty for some large-scale development in mining, oil and gas, energy, and forestry in British Columbia which has, to a degree, stimulated the desire for a new relationship. On the other hand, viewed more generously, the document may represent a true change of heart on the part of the province, a move out of the state of “denial and studied amnesia” about historical injustice as described by Haig-Brown and Nock, to a place where all parties can work to transform traditional colonization behaviours by cocreating a future for the province (2006, 5).  On the part of the First Nations Leadership Council, the wording in the New Relationship document (Government of British Columbia et al. 2005), particularly their goal statements, reflects their consistent demands for just distribution of resources, full recognition of Aboriginal rights and title described in the Constitution Act, 1982, and reconciliation and clarification of jurisdiction. These demands have been clearly articulated for over a century by First Nations leaders in British Columbia (Harris 2002). 54  For example, the Nisga’a Nation’s Petition to the Privy Council of 1913 http://www.kermode.net/nisgaa/timeline/time.fr.html.  54  81  The Relationship document does not specifically recognize that reconciliation will require meaningful and sufficient spaces (physical, social and political) to allow for First Nations to exercise those rights and titles. Furthermore, the Crown position in the British Columbia treaty process has required the extinguishment of Aboriginal title as a starting point for discussions, in exchange for land use rights, self-governance elements, and co-management arrangements (Maaka and Fleras 2005). Because the Crown’s full position on Aboriginal rights and title is not clear, some assumptions can be ascertained from history. Nevertheless there is evidence that a more contemporary view on the land question may be developing.  2.4.3. Land Use Planning in British Columbia Land use applications and planning in British Columbia have involved increased First Nations input in recent years. All regions of the province have land use plans in place that have included First Nations, except in the Atlin Taku region where only a framework agreement exists as of March 2008. In some cases, however, specific First Nations groups declined participation either due to the nature of the management structure or for other political reasons. For instance, the Nootka Coastal Land Use Plan (NCLUP) is a provincial government-created land use plan that claims to have requested input from a number of Nuu-chah-nulth First Nations groups through the Nuu-chah-nulth Tribal Council. These groups opted not to involve themselves in the  82  Plan and opted instead to pursue land negotiations through their existing treaty negotiations with the federal and provincial governments (NCLUP 2001).  In a more positive engagement, a notable example of linking First Nations and Western scientific resource management is the well-known encounter in Clayoquot Sound on the west coast of Vancouver Island. A controversy and stand-off began when the timber companies holding the licences to operate (at the time, MacMillan Bloedel and Interfor) in the area was planning to log old growth forest in the region. The Scientific Panel for Sustainable Forest Practices in Clayoquot Sound (or CSSP as it is also known) was then created to provide the government with recommendations on how to best manage the forest resource of the Sound. Eventually, the five Nuu-chah-nulth Nations were included in the Clayoquot Sound Scientific Panel (Nuu-chah-nulth Tribal Council, 2005). This group created new land management rules based on ecological and cultural integrity, with other benefits including “an improvement in consultation effectiveness for all parties, and increased confidence among First Nations that their values are being protected” (Mabee and Hoberg 2004, i). While the Nuu-chah-nulth have equal management input and make management recommendations, the Scientific Panel’s guidelines remain unlegislated and vulnerable to being overruled by the provincial Ministry. Since the ultimate decision for implementation sits with the British Columbia government, management equality does not truly exist in this process, however, it is an early example of co-management between multiple sectors, including First Nations.  83  2.4.3.1.Co-management Agreements A growing number of examples of potentially sustainable land use plans can be found in co-management models that are emerging in BC. The land-related values of First Nations in British Columbia could lead to a new generation of sustainable plans, as evidenced in plans created over the past ten years.  Land use plans have been created in a number of territories ranging from the earlier plan in the Nuu-chah-nulth Nation in Clayoquot Sound to the more recent plan with the Haida Nation in Gwaii Haanas (CSSP 1995; CHN and the Province of BC 2007). Precedent-setting agreements were reached in the Spirit Bear Rainforest (2006) between the Province and six coastal First Nations. 55 These co-management models forge new relationships between the values and views of First Nations and the resource-use managers from provincial agencies and private sector interests. Forest management models that incorporate Aboriginal perspectives have emerged in British Columbia, such as the Nicola Tribal Association TmixW Research Adaptive Management Initiative in the Nicola Valley. It is reasonable to assume that examples of co-management, innovative practices, and meaningful consultation, if applied consistently throughout the province, could lead to satisfactory inclusion of First Nations and more concerted ecological sustainability efforts overall.  Gitga'at First Nation, Haisla Nation, Heiltsuk Nation, Kitasoo/Xaixais First Nation, Metlakatla First Nation, and the Wuikinuxv First Nation 55  84  2.5. Existing Consultation Guidelines Consultation with First Nations with regard to land is primarily a federal government responsibility, although this responsibility is sometimes allocated to provincial resource management ministries. In February 2008, the federal department of Indian and Northern Affairs Canada (INAC) released a guideline document on Aboriginal consultation and accommodation (Government of Canada 2008). This guidelines document outlines some basic steps that consultation practitioners can use to move through a consultation process. These phases are (Government of Canada 2008, 39): (a) Pre-consultation analysis and planning (b) Consultation process (c) Accommodation (d) Implementation, monitoring and follow-up  Significant policy and legal issues are not addressed in this guideline document. However, within the guidelines document, the federal government commits to developing the following material in the months ahead: […] Develop a federal policy on consultation and accommodation that will address outstanding legal and policy matters including: • the scope of the duty, • who is the Crown, • the nature and scope of accommodation, • capacity of government and Aboriginal groups to engage in consultation, and • the reconciliation of the evolving legal duty with statutory and other legally based obligations to consult (e.g. comprehensive land claim agreements). (Government of Canada 2008, 8)  The principles of consultation on the part of the federal government are described as (paraphrased from Government of Canada 2008): 85  •  Legal Principles o Honour of the Crown – uphold the honour of the Crown by discharging the duty to consult in a manner that promotes reconciliation of interests. o Reconciliation – consultation and accommodation should be consistent with the “overarching objective of reconciliation with Aboriginal groups.” o Reasonableness – balance other societal interests. o Meaningful Consultation – genuine effort and willingness and ability to adjust plans to address concerns and interests. o Good Faith – disclosure of relevant facts, no “oblique motive,” and the absence of “sharp dealing.” o Responsiveness  •  Principles from Practices o Mutual Respect – taking into account “different interests, perspectives, cultures, understandings and concerns.” o Accessibility and Inclusiveness. Ensure “access of Aboriginal groups to the process, taking into account community capacities, geographic location and/or their linguistic, socio-economic background or physical capabilities. o Openness and Transparency – to create a procedurally fair and clear process. o Efficiency o Timeliness – early initiation and clear timelines for completion. 86  These principles expressed by the Government of Canada are a positive step in addressing the need for deeper consultation and accommodation, particularly if the expressed intention of dealing with issues of Nation capacity, differing perspectives, values and worldviews, and early initiation is followed. However, these three key principles (capacity, differing views, and early initiation) are not always followed (e.g., timeliness in the Dene Tha’ case) and continue to limit the consultation. There is some distance to go before these principles are transformed into new, firm policy that is regularly implemented.  Furthermore, these principles imply that meaningful consultation is achieved when a proponent is willing to alter their plans to accommodate First Nation(s) interests, or finding a monetary and/or economic package to compensate the First Nation(s) for compromise. However, as this dissertation shows, meaningful consultation requires much more than simply adjusting plans. Essentially, meaningful consultation would only be achieved if all of the federal consultation principles were followed, not only the need to adjust plans.  In British Columbia, the government’s most recent policy document regarding consultation with First Nations is dated 2002, before the Haida 2004, Taku 2004 and now Tsilhqot’in (2007) and Wii’litswx (2008) decisions. This policy document is no longer available on the BC government website and does not likely represent current 87  provincial policy. However, the document is all that is available as guidance within the province. Since the signing of the New Relationship in 2005, the First Nations Leadership Council and the Province have been working on a new consultation and accommodation framework, among other priorities. 56  The lack of clear and meaningful provincial consultation guidelines has been noted by First Nations. For example, in a statement about the demand for a moratorium on coalbed methane development in the province of British Columbia, representatives from the First Nations Summit 57 cite the lack of strong regulations and consultation guidelines as two of the drivers for demanding development be halted (Office of the Wet'suwet'en 2008). David deWit, the Wet’suwet’en First Nation’s Natural Resources Manager states: Contrary to what Gordon Campbell [premier of the province] is saying, British Columbia does not have adequate, let alone world class, regulations for coalbed methane—particularly when it comes to consulting and accommodating First Nations. This simply has to change. (Office of the Wet'suwet'en 2008, n.p.)  While process-related consultation guidelines do exist in various forms, what is lacking in most government guidelines is a foundational discussion of how to ensure that these consultations are ethical, meaningful, and balanced in order that they may achieve the deeper consultation required by the Delgamuukw decision and the reconciliation called for in the Tsilhqot’in decision.  As described on the British Columbia Ministry of Aboriginal Relations and Reconciliation’s website (no date) www.gov.bc.ca/arr/treaty/negotiating/public.html. 57 The First Nations Summit represents First Nation groups that are involved in the B.C. treaty process. For more on First Nation associations in B.C., see footnote in Section 1.3. 56  88  2.6. Ontological Difference Three terms, ontology, values and worldview, were raised in many of the interviews that form part of this research. It is important to introduce these terms, at least at a basic level, to provide context for the interviews, themes, and principles that result from the research. The concepts are introduced here also because of their importance in the exploration of relationships and understanding between Indigenous and nonIndigenous peoples. The different ontological conceptions of European and Indigenous peoples are at the root of some of the challenges faced in resolving land-based consultation and negotiation. Because ontology shapes one’s worldview and associated values, ontology also shapes the goals, objectives and interests that form the starting point for consultation and negotiation.  The terms ontology and worldview are not interchangeable. They do, however, have close ties to each other. Both concepts form our often unspoken philosophical foundation for land-use decision making by shaping our ideas around, and our relationship with, the land under discussion. Ontology is the science of being, or the study of “our thought about being” (Lowe 2006, 4). Ontology is a branch of metaphysics, which is itself a branch of philosophy. Ontology is concerned “with what kinds of things [can be said to] exist and co-exist” (Lowe 2006, 5). The noun worldview is often used in a more general sense than ontology; the term describes one’s view of reality and overall understanding of the world. Worldview encompasses the general  89  concepts of ontology and includes not only one’s picture of reality, but also one’s sense of what has meaning and value.  Although the term worldview has been described as poorly defined by some (van Steenbergen 2005), definitions do exist and it is more often a misunderstood concept. Clark defines worldviews as "beliefs and assumptions by which an individual makes sense of experiences that are hidden deep within the language and traditions of the surrounding society” (LeBaron 2003, n.p.). Worldview is a culture bound construct reflecting the tendency of Westerners to think of the world as something “picturable” and knowledge itself to be something visual (Naugle 2002, 332) gained through scientific reduction and dissection, rather than Indigenous worldviews where the world is whole and knowable through land-based spiritual communion (McGregor 2000) and language and culture constructs such as song, dance and story (Christie 2004).  While there is no single definitive Indigenous worldview that is common across all Indigenous cultures, similarities can be seen that generally contrast some fundamental aspects of a traditional Indigenous worldview with a Western worldview. The Indigenous peoples working with the United Nations draws comparisons between Indigenous knowledge, culture and practices and finds similarities on a global scale (United Nations 2004; United Nations 2007), while understanding that “Indigenous peoples have a collective and individual right to maintain and develop their distinct identities and characteristics…” (United Nations 2004, 3). Similar broad comparisons 90  can be drawn between the variety of Indigenous worldviews, particularly as they relate to their relationship with, and valuing of land in British Columbia (Atleo 2004; Guujaaw 2005; Racette et al. 2006). Furthermore, there are also other non-Western worldviews that have at their basis different ontological constructions. One distinct difference between Western and non-Western ontology is that non-Western people generally do not “seem to make any sharp distinction between things and people” in their “ordering of beings” (Latour 2004, 44). The difference is not that “natives” live in harmony with nature, or that “the savages” treat nature well, but “rather in their not treating it all” (Latour 2004, 44). As Chamberlin describes, quoting Kiowa author N. Scott Momaday: … a traditional Indian view of nature involves bringing people and nature into alignment, first of all to achieve some kind of moral order and then to enable a person ‘not only to see what is really there, but also to see what is really [emphasis in original] there’. (Chamberlin 2003, 133)  In Politics of Nature French philosopher Bruno Latour describes non-Western cultures as providing “an alternative” worldview that puts an end to the Western ontological schism between humans and non-humans (2004, 42). He describes nature as a category unique to Western culture. This alternative, non-Western ontology he describes in an indirect way as follows: Non-Western cultures have never been interested [emphasis in original] in nature; they have never adopted it as a category; they have never found a use for it…. [P]recisely because they [non-Western cultures] have never lived in nature, [they] have preserved the conceptual institutions, the reflexes and routines that we Westerners need in order to rid ourselves of the intoxicating idea of nature. … These cultures offer us indispensable alternatives to the nature-politics opposition, by proposing ways of collecting associations of humans and nonhumans using a single collective clearly identified as political. (2004, 43) 91  Many First Nations peoples in British Columbia hold a worldview that does not separate nature from humans; as Latour describes, in such a worldview, there is no need for a category termed nature. First Nations peoples recognize their relationship with the land as fundamental and inseparable from themselves, their identity, and their reality. In turn, they are an inseparable part of the land (Racette et al. 2006). For instance, in his book Tsawalk, Atleo presents the Nuu-chah-nulth perspective of heshookish tsawalk, meaning “everything is one” including the physical and metaphysical (Atleo 2004, xi). The Hul’qumi’num of the south coast of British Columbia express how this worldview and associated laws and values are integral to their culture. Hul’qumi’num snuw’uy’ulh [laws] teaches us that Hul’qumi’num Mustimuhw [people who speak the Hul’qumi’num language] have an inalienable connection to the traditional territory. This connection to our land and resources is both a right and a responsibility. These laws are the foundation on which our relationship with the natural world is built, a relationship connecting the Hul’qumi’num Mustimuhw to our First Ancestors. It is a connection fundamental to our cultural identity and way of being. This oral history and the customary laws handed down over time teach the Hul’qumi’num that we are not of the land, but are the land and its resources. (Racette et al. 2006, 14)  This conception of a merged “common world” (Latour 2004, 239) is the fundamental ontological difference between Indigenous worldviews and most Westerner’s binary view of humans and nature (Waters 2004). According to Whiteman and Mamen, Indigenous ontology that does not see a separation between themselves and the Earth in the way most Western people do, shapes Indigenous environmental management  92  and is at the core of traditional knowledge (2002). 58 This interconnectedness leads many First Nations to value nature differently. “The Western world somehow got out of step with all Indigenous cultures by changing the basic premise of its interactions with the natural world” (Michel and Gayton 2002, 5). Thus, the value First Nations peoples have for the land and all of creation is more complex than the dualistic, anthropocentric values of many Westerners that aim for development in the form of resource extraction (Howitt 2001). Any despoiling of the land is as an attack on their relations, their family, or their own person (e.g., Mohs 1994; Racette et al. 2006).  Of particular interest to the case of land and resource management is the material selfinterest that has been assumed, in Western ideology, to be a primary motivating factor for human beings, and the idea that individuals can maximize the common good through self-centered activity (A. Smith 1789). Based in part on this worldview held by many (but not all) Westerners, “current ideas about development often pander to one small subset of human interest [that of] maximizing individual wealth” (Macqueen 2004). These utilitarian values and assertions for the need for economic efficiency tend to devalue environmental issues, community connection, and the spiritual values emphasized in alternate non-dual worldviews (Howitt 2001). These devalued elements are often fundamental components of First Nations’ goals in land use planning,  58 Any commonalities implied in this paper between two Indigenous groups or separate Western government or corporate entities are simply illustrative generalizations, but nonetheless may be useful in highlighting the differences between goals and values in consultation and negotiation processes. Clearly, some First Nations may have, and should be permitted to have, worldviews, values and goals that are vastly different from other Indigenous cultures.  93  resource development, and associated consultation (e.g., International Institute for Sustainable Development 2001; Squamish Nation 2001; Hupačasath First Nation 2003; Racette et al. 2006).  In current Western industrial societies, value systems that derive from Western ontology are often specifically anthropocentric and predominantly physically and mildly emotionally justified, in the sense that one product, action, or service is compared to others for its utilitarian and consumer value. In my experience, in Western decisions regarding the environment, values are often reduced to monetary measurement, either explicitly or implicitly, as represented by actions taken or resulting monetary allocations and accommodation. Thus, in the current Western worldview, nonhuman nature’s continued existence is dependent on the value humans find in, and place on, nature. The worth of nature is described through monetization of some anthropocentric aspect, such as its economic resource potential, biological systems, aesthetic or recreational value. These values are not only anthropocentric but clearly conditional, dependent on social arrangements, local conditions, or human emotions and experience.  This Western worldview dominates colonized societies and contrasts with some holistic, non-dual or circular Indigenous worldviews. The majority of non-Aboriginal Canadians are likely to hold values (or at least act in ways) that are based in utilitarian  94  theory and developmentalism 59 (Howitt 2001) which aim to maximize human want satisfaction and the making of nature (resources) into material value. I will avoid restating the origin of these theories and instead point the reader to Van De Veer and Pierce, who summarize the implications on land use from the European Enlightenment period through to 18th and 19th century writings by Adam Smith, Jeremy Bentham, and John Stuart Mill (1998).  Underlying values and worldviews which drive decision making and define suitable accommodation are not acknowledged through the basic listing of goals and airing of concerns around authority.  To the contrary, assumptions are made that these goals  derive from a shared point of view and way of seeing the world, and these assumptions are not easily eliminated in institutional processes. Some modernists think of Eurocentrism as a prejudice that can be eliminated in the same way that attempts have been made to eliminate racism, sexism, and religious bigotry. However, Eurocentrism is not a matter of attitudes in the sense of values and prejudices. It has been the dominant artificial context for the last five centuries and is an integral part of all scholarship, opinion, and law. As an institutional and imaginative context, it includes a set of assumptions and beliefs about empirical reality. (Youngblood Henderson 2000, 58)  Inadvertently, stronger parties may try to impose their worldview, understanding of knowledge, and associated values on the process (LeBaron 2003). As described by Latour (2004) the concept of value is irreducibly tied to the concept of fact, where: Developmentalism has been defined and applied variously in numerous fields including finance, education, international development, and economics. The definition applied here is used with respect to industrial developmentalism (Howitt 2001) based on the Western linear notion defined by Friberg and Hettne as “a common corporate industrial culture based on the values of competitive individualism, rationality, growth, efficiency, specialization, centralization and big scale” (in Hove 2004).  59  95  the scales are thus not weighted evenly between someone who can define the ineluctable and indisputable reality of what simply ‘is’ (the common world) and someone who has to maintain the indisputable and ineluctable necessity of what must be (the common good), come hell or high water. (97)  Some First Nations have expressed concern about misunderstandings in federal Environmental Assessment processes. In one case, there was concern about non-Indian company consultants coming to study their communities, because the consultants were unable to understand their culture or the importance of their land to them, and were thus unable to accurately reflect their needs and aspirations (Kansky 1987). Because of this, unique perspectives are lost. This omission leaves First Nations’ goals open to misinterpretation and may lead to inadequate accommodation or compensation.  2.6.1. Traditional Knowledge The non-dual worldview held by most Indigenous peoples leads to a distinct epistemology, or way or knowing and learning. Indigenous knowledge and wisdom, that is described, understood and categorized (or not categorized) differently from Western knowledge systems, is one of the aspects that requires consideration in crosscultural land management interactions. Traditional Ecological Knowledge is a term commonly used in North America to describe a field that varies from a narrow definition of specific information held by Indigenous peoples about the environment to a broader recognition that Traditional Knowledge includes information and knowledge, practices, values, wisdom and worldviews of the Indigenous peoples.  96  In recent years, the volume of literature and study in Traditional Ecological Knowledge has exploded, particularly as it relates to the management of natural resources (Berkes 1999; Turner 2000; Nadasdy 2003). The use and application of the term has progressively narrowed to the former, more data centric interpretation of knowledge. The philosophy and worldview absent from many of these narrow Traditional Ecological Knowledge discussions comprises the moral, ethical and spiritual dimension of Traditional Ecological Knowledge and Wisdom “with which practitioners of rationalist scientific traditions are most uncomfortable” (Ford and Martinez 2000, 1249).  Despite its popularity, Traditional Ecological Knowledge is a problematic term and its attractiveness to Western scientists could be considered convenient and unfortunate. As Nadasdy describes, the constituent terms “traditional” “ecological” and “knowledge” are products of a distinctly European conception of the world and constrain Aboriginal perspectives to being static (traditional), Cartesian in the separation of humans and nature (ecological), and seen as intellectual (knowledge) products (2003). Although compartmentalization might enable Western science to consider data from Indigenous elders or hunters as discreet packets of biological, climatological, or other Western scientific information, it disables our ability to truly consider and incorporate Indigenous values, knowledge and worldviews. For these reasons, I have preferenced the term Indigenous Knowledge is this research, except where participants have used another term.  97  Until relatively recently, the Western world knew little about Indigenous knowledge and wisdom. The history of colonization worked to discredit and eradicate Indigenous peoples’ knowledge (IPK ), only to then expropriate Indigenous knowledge through patent and copyright. This colonial practice has silenced generations of potential Indigenous knowledge keepers and practitioners and severely curtailed any integration of IPK with Western science. (Michel and Gayton 2002, 6)  Over the past two decades, Western recognition of and appreciation for Indigenous knowledge has increased, as evidenced in part by the 1992 United Nations Conference on Environment and Development emphasizing the importance of Indigenous knowledge, particularly as local knowledge relates to biological diversity (Johannes 1989; United Nations 1992). The Convention on Biological Diversity addressed the "knowledge, innovations and practices of Indigenous and local communities," (CBD 2003, Article 8(j) n.p.). An intergovernmental committee, the United Nation’s World Intellectual Property Organization, is concerned with preserving, protecting and revitalizing intellectual property and genetic resources, as well as traditional knowledge and folklore (2007). These international references relate specifically to information, data, and physical practices that fit neatly within the Western scientific paradigm, rather than more fundamental philosophies and ideologies of some Indigenous cultures. Even the United Nations Education, Scientific and Cultural Organization (UNESCO) questions the benefits of integrating local knowledge into development projects, as they describe in the following:  98  One of the greatest challenges today is to determine how holders of local knowledge, and the communities of which they are a part, should best engage in these processes. Will the integration of indigenous knowledge in development and conservation efforts contribute to community empowerment? Or is there a risk that rural and indigenous peoples may be further dispossessed, and their distinctive worldviews misrepresented and undermined? (UNESCO 2002, n.p.)  There is a subtle difference between the descriptions of Traditional Ecological Knowledge in academic circles and Traditional Ecological Knowledge’s actual application in resource management and co-management processes. Although the knowledge aspect understood in Traditional Ecological Knowledge’s is more commonly considered in resource management issues, it is the inadequately understood worldview that is typically omitted from Western resource management discourse. Academics and researchers (e.g., Nadasdy 2003; Turner 2005) will often make mention of the more holistic and ontological aspects of Traditional Ecological Knowledge, whereas practitioners will revert to Traditional Ecological Knowledge as knowledge only when incorporating it into decision making, as demonstrated is the cases from British Columbia (Estergaard 2006). The degree of understanding and incorporation of each First Nation’s Traditional Knowledge was considered as part of this research into land-based decision-making process.  2.6.2. Collaborating for Sustainable Stewardship Despite the similarities in Indigenous ontology and knowledge systems that can be found in some First Nations communities, each First Nation is unique and Indigenous peoples’ response to resource development proposals 99  in or near their traditional territory can take a wide range of forms, from formal ‘business-like’ negotiations to armed resistance, depending on several factors ranging from recognition of their rights to philosophical differences with regards to resource development…. (Hipwell et al. 2002, 14) However, working to include Indigenous peoples and their philosophies on resource development projects can lead to enhanced project outcomes, such as sustainability and community acceptance. Numerous Indigenous and Western scholars (Knudtson and Suzuki 1992; Berkes 1999; Cajete 1999; Howitt 2001; Fixico 2003; Morgan 2004; Turner 2005) have suggested that important lessons can be learned from First Nations’ Indigenous wisdom and that “in building new ecological ethics, traditional ecological knowledge bridges the gap between” human-centric ethics and “biocentric ethics”(Berkes 1999, 182). American Indian scholar and author Ron Trosper describes these Indigenous environmental perspectives and ethics as key components of resilient, sustainable governance; specifically the “unity of man and nature”, “restraint in consumption”, and consideration of a “long time horizon” (2002, 335). My research has also emphasized the importance of common property, circular or cyclical perspectives of land and life, intergenerational transfer of knowledge and skills, and sharing and reciprocity (Trosper 2002; Dumont 2003; Fixico 2003). These Indigenous values are rarely substantially included in resource planning and development decision-making processes (P. Smith 2006; Kennedy 2007). The United Nations’ Declaration of the Rights of Indigenous People recognizes that “respect for Indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment” (United Nations 2007, 2).  100  When compared to a Western worldview, the relationship and values associated with many Indigenous peoples and their land form a major part of distinctive Indigenous worldviews. In Section 2.6 I highlight the primary ontological differences between many First Nations traditions and Western worldviews as they relate to land-use and environmental stewardship. Understanding and respecting different values and Indigenous laws poses a significant challenge in the achievement of meaningful consultation and substantial accommodation. However, achieving this aim of cultural recognition in consultation would not only strengthen consultation processes, but could lead to more ecologically sustainable land-management outcomes.  101  Chapter 3.  Methods  3.1. Decolonizing My Methods As a non-Aboriginal person working with Indigenous people, each step of my research, from design of the process, to conducting the research, to analysis, has required me to be aware that I was working with communities, people, and data that come from Indigenous cultures with understandings and assumptions that may be different from my own. The assumptions, knowledge, values and context I bring to this research sometimes differ from those of the people and communities with and for whom I have conducted this research.  Indigenous people around the world have been the object of study and research for centuries (Canadian Institutes of Health Research 2007). The positivist reductionist paradigm that dominates Western scientific approaches to research, including scientific anthropology which views people as “objects to be studied at a distance rather than as participants and co-researchers engaged in inquiry,” is more likely to “violate Indigenous values, beliefs and experience” (Castleden 1992, 235). In an attempt to move away from this paradigm, I focused on collaborative research and made the object of my research the cases, and made the issue consultation and negotiation, rather than the object and issue being the communities and individuals themselves. I see myself as working with and for the communities involved in the research project. Rather than observing or describing a culture through ethnographic methods, I have been recording 102  and compiling individual experiences with consultation and negotiation, as much as possible placing the power for the narrative in the participants’ voices.  In the design stages of my research, I worked closely with my advisory committee and heeded their advice as to what would be the most useful objectives for this research. Their input came from both the Indigenous and non-Indigenous perspectives. I also invited community leader participants in the research to comment on or revise my research objectives, if they wanted. I consistently heard that the objectives, as they were originally developed with my committee, were useful and clear.  In the process of case selection, setting up my field work, and interviews, I strove to include as much input from community members and leaders as they would like to provide. In general, this involved community leaders identifying cases that they thought could provide useful input to my research, and also allowing the interviews to take as long as necessary for participants to fully express their views.  And finally, in the analysis of this data, I was conscious of the context in which statements were made and data collected, particularly because there is the risk of misunderstanding in a cross-cultural context. While this research is not anthropologic or ethnographic in nature, I am aware of the lessons learned and insight gained from past work in these fields. I am aware that the misinterpretation or over-interpretation of data by non-Aboriginal researchers can throw conclusions far off base, in part 103  because of our different worldviews. What I believe to be my understanding may actually be misunderstanding simply because understanding is “praxis of constant transformation” (Fabian 1999, 98) with the process of understanding being personally situated.  Misinterpretation and misunderstanding due to personal context and worldview can be damaging for a community or a people. I think of how the anthropologist Boas, in his writings about First Nations of the West coast of B.C. that began in 1886, characterized the Kwakwaka'wakw as cannibals and how that work affected those communities for many decades (Goldman 1981). 60 While the issue of context may be “too difficult for philosophers or anyone else to solve” (Scharfstein 1989, 4) it is important to alert readers and users of this research that there could be an issue with contextual difference between myself and the participants. 3.2. Honouring Indigenous Methods Academic research is a Western concept and has been performed largely by Westerners in academic institutions. Few texts have been written that focus specifically on Indigenous research methods. Certainly, writers and researchers have written about the neocolonial elements inherent in Western research approaches, including the continued colonization perpetuated by cross-cultural research conducted by Western  Anthropologist Goldman critiqued Boas’ “arbitrary translations of [community informant and collaborator George] Hunt’s Kwakiutl language and direct descriptions of culture” (e.g., retranslating Hunt’s “man eater” provided in English to “cannibal” when Hunt is referring to a supra-human or supernatural being) (Goldman 1981, 87). 60  104  researchers viewing cultures through the lens of a Western European worldview. Writers have also discussed Indigenous methodology as a theory about research (L.T. Smith 2000). These works focus on decolonizing one’s approach to research while still applying Western academic research methods, but also focus on who is doing the research and for what purpose. I tried to follow the guidance provided by L.T. Smith on decolonizing my approach to the research process (1999). However, I was also interested in incorporating Indigenous methods if possible.  Western analytical research approaches themselves can continue the process of colonization by assuming there are no alternatives to the typical qualitative research methods presented in Western discourse. Contemporary academics and graduate students are attempting to bring Indigenous methods into academia. As an example from Western Canada, Maggie Kovach (2007) dedicated much of her doctoral dissertation to the description and application of Indigenous research methods. She described the difficulty she had in applying non-Western research methods (including dreaming and journaling) to her research approach, particularly because traditional Western academics are uncomfortable with some Indigenous methods. [I]ntegrating spiritual knowings and processes, like ceremonies, dreams, [and] synchronicities, that act as catalysts or portals for gaining knowledge makes people uncomfortable, especially when brought into the discussion of academic research. This is because of the outward knowing vs. inward knowing dichotomy. Yet what I have been hearing and learning along this journey is that both ways of knowing are needed. (Kovach 2007, 31)  105  Indigenous knowledge is gained through experience and transferred through stories, song and ceremony. As described by Joely De La Torre (Proudfit) in Indigenizing the Academy, Indigenous knowledge “is the established knowledge of the tribe [or First Nation], the tribe’s worldview, and the customs and traditions that direct the tribe” (2004, 187). This experiential knowledge can be made through outward knowing from observations or inward knowing from spiritual or personal observations. As McGregor has described “Indigenous knowledge as spiritually derived, whether it is learned directly from the spirit world or teachings originally derived from the spirit world that are then taught by people and/or other beings” (2000, 26). The self, metaphysical spaces, and the land itself can also be teachers and help one gain new understandings. An Indigenous paradigm comes from the fundamental belief that knowledge is relational, is shared with all creation, and therefore cannot be owned or discovered. Indigenous research methods should reflect these beliefs and the obligations they imply. (Wilson 2001, 176)  Developing a large body of understanding and academic acceptance of Indigenous methods will mean moving beyond simply placing, or overlaying an Indigenous perspective on non-Indigenous research paradigms.  Indigenous research and communication methods include narratives, storytelling, interviews, focus groups, talking circles, and sharing circles. In addition, dreaming and vision quests can also be sources of guidance, knowledge and wisdom in many Indigenous cultures. Some of these methods are common across Indigenous and non-  106  Indigenous methods, while others are more difficult to apply and find acceptance for in conventional Western academic institutions and even in some Indigenous communities.  An important part of my research has been the positive relationships I have developed with the communities and participants in the research. I have been self-reflective throughout the process, questioning my actions and my results. I also have welcomed my dreams to guide me in the direction of my research, but I have received few directions this way. Most importantly, I have maintained my relationship to the land through meditation outdoors on the Fraser River. Okanagan elder Dorothy Christian, in her talking circle entitled “Can you love the land like I do?” (held at Simon Fraser University, August 2007) reminded me of the importance of this practice for learning, healing, and healthy relations. As much as I can, I try to keep up this practice.  I have chosen to use qualitative methods, particularly audio-recorded interviews, which allow the data, the voices of the participants, to be heard as directly as possible. Narratives and storytelling are two methods for sharing knowledge and creating new understandings. The use of narratives and storytelling are often associated with the teaching and learning practices of Indigenous societies and there is ample evidence to support this as a valid connection. In addition, much contemporary research by Indigenous scholars uses narrative and storytelling as the primary method of supporting research objectives and community goals at the same time. (WeberPillwax 2004, 78)  107  While my interviews did not contain historical Indigenous stories, each interview contained the contemporary “story” of individual experience in the case and the relationships formed in the case. These narratives form the foundation for my research, and were kept whole in many quotes and places.  Western approaches to research tend to separate the researcher from the data so that the research can be “objective” in a Western scientific sense. L.T. Smith touches upon this when she writes that so much of the research process gets lost and the “voices of the research subjects become increasingly silenced as the act of organizing, analyzing, and interpreting the data starts to take over” (2000, 243). For this reason, I have chosen not to use mechanistic qualitative methods that break down the interview into bites of specific key words and fragments of ideas (e.g., some applications of Grounded Theory) and rather address the interviews as wholes, identifying major emergent themes.  Smith briefly addresses the practice of collecting data in her chapter of Reclaiming Indigenous Voice and Vision (L.T. Smith 2000). Kaupapa Maori research methods include the following: •  A commitment to report back to the people concerned, both as reciprocity and accountability.  •  A continued relationship established, in some way, with the community or individual.  108  I have heeded this guidance and will be reporting back with my dissertation to communities, in person if desired by the individuals.  And last, many Indigenous researchers apply interdisciplinary approaches to their research (L.T. Smith 2000; Weber-Pillwax 2004; Kovach 2007) which is a reflection of the integrated epistemology of Indigenous knowledge. Interdisciplinary research can be difficult to slot into the silos of disciplinarity found in Western academic institutions. My research has been inherently interdisciplinary, touching upon issues and applying techniques from social science, planning, philosophy, law, and history. While my research may have been supported (financially and academically) in a more traditional disciplinary setting, I think that the field and program of interdisciplinary studies allowed me to freely explore the most important aspects of this research question without the constraints of focusing on one disciplinary aspect. 3.3. Ethical Considerations My ethical concerns throughout this research have been twofold: to do my very best to ensure that the outcomes are useful to First Nations communities in British Columbia and Canada, and to do no harm to individuals I have worked with or to First Nations communities in general. I tried to deal with the first concern by being collaborative at the outset, and then being thorough, thoughtful and self-critical of my research and analysis. The second concern, that of harm to persons or the community, was partly addressed through my collaborative research methods, choice of data analysis methods,  109  and remaining mindful of the fact that I am a non-Aboriginal person entering into and working with Indigenous communities. I expand on this concept of harm below.  My interview-based research had the potential to do harm to individuals and communities in a two ways: first through misinterpretation of the data, and second through misinterpretation or misuse of my results in the future. Similar to Andie-Diane Palmer’s feelings about her work at Alkali Lake, I doubt that any of the participants I worked with need me to interpret their experiences or culture back to them for their benefit or greater understanding (2005). What I have tried to do is use the language and contributions of the participants directly, and then to draw out themes in the conversation. I was aware of my bias and preference towards hearing more about relationships with the land than might otherwise have been stated. I have tried to be true to the interviews and draw phenomena from the participants themselves.  The primary potential harm could be that the treatment of the results could lead to misuse or misinterpretation, specifically: •  narrowing or restricting approaches to consultation or collaboration,  •  pushing for a hybridization of Western and First Nations decision-making needs and theories, and  •  stereotyping, narrowing, restricting, essentializing or homogenizing the diverse worldviews and associated values within and between First Nations regarding land and resource management.  110  Such misinterpretation could occur through my analysis and treatment of the data or by third party interpretation of my results and presentation. In the first instance, I intend not to dissect the data and remove ideas and concepts from their intended context, but to allow statements and themes to stand wholly and unto themselves. I also plan to present my results in a way that allows for reader/user reflection, and creative interpretation and use, rather than restrictive prescriptive solutions that may be limiting to First Nations.  Second, the revelation of confidential or controversial information within an interview, which is then used in a publicly available dissertation, could cause harm to a participant or a community. Each participant was offered the opportunity to review and revise their transcripts and no transcripts have been used without the approval of the individual. In cases where I thought a quote might be controversial, I sent a note to the individual saying that I would be quoting a particular section of the interview, which might otherwise have gone unnoticed.  Finally, the form or presentation of the outcomes themselves could be harmful to individuals or communities. I was concerned that the outcomes of this research could be limiting, rather than clarifying or empowering. To address this concern, I tried to highlight the critical point that the development of a negotiation, engagement or consultation template could only be limiting and detrimental to First Nations and  111  should be avoided. Principles and guidelines would probably be most helpful without being prescriptive and limiting. This idea is discussed in Section 5.4.2. 3.4. Research Design Qualitative research is most often applied when one needs to develop new “theories or hypotheses”, develop a “deeper understanding” of an issue, and is “willing to trade details for generalizability” (Trochim 2006, under Qualitative Measures). My research question suited these three justifications for applying qualitative research. The qualitative research method of case study was applied to address the research question, particularly because there is a void in literature regarding decision-making and negotiating processes that fully and meaningfully include First Nations experience in British Columbia.  3.4.1. Case Study I applied a case study strategy and related methods to my research question. As defined by Yin: A case study is an empirical inquiry that • investigates a contemporary phenomenon within its real-life context, especially when • the boundaries between phenomenon and context are not clearly evident. (2003, 13) While case study is neither a method nor research design in itself, it is a strategy or approach that involves “careful delineation of the phenomena for which evidence is being collected (event, concept, program, process, etc.)” (VanWynsberghe and Khan  112  2007, 2). Case study analysis is best used when there is a gap in existing knowledge that may be filled by the experience or outcomes of a particular case study, or group of cases. In general, case studies are the preferred strategy when ‘how’ or ‘why’ questions are being posed, when the investigator has little control over events and when the focus is on a contemporary phenomenon within some real-life context. (Yin 2003, 1)  My qualitative research was conducted using a collective case study and cross-case embedded analysis (Creswell 1998). Collective case study involves studying a number of instrumental cases jointly “in order to investigate a phenomenon, population or general condition” (Stake 2005, 445). Conversely, instrumental case study involves one case to study a phenomena and intrinsic case study is applied when one wishes only to examine the case itself to understand the case more thoroughly. 61 As was the situation in this research individual cases in the collection of a collective case study “may or may not be known in advance to manifest some common characteristic”, but the cases are studied because “it is believed that understanding them will lead to better understanding… about a still larger collection of cases” (Stake 2005, 446). The consultation and negotiation cases included in my research were expected to provide insight into a larger collection, that being future consultation and negotiation processes.  I concur with Stake (2005) and others who distinguish single case study from the design and analysis of multiple case study. However, Yin considers “single- and multiple-case design to be variants within the same methodological framework” with “no broad distinction... made between the so-called classic (i.e., single) case study and multiple-case studies” (2003, 46). 61  113  Good qualitative research involves the layering of multiple levels of abstraction, from the general to the particular (Creswell 1998). The cross-case analysis allows for progressively deeper levels of analysis of the interviews. See Section 3.4.3.5 for more on the analysis of interviews and cases.  Creating a one-size-fits-all description of a successful consultation process based on few cases could be more detrimental and restrictive than helpful to Indigenous peoples. In particular, the diversity of First Nations’ perspectives on resource management issues in British Columbia would not be well represented by one or two cases. Although the complete breadth of potential worldviews and associated values cannot be captured by this research, the similarities and diversity of worldviews may be illustrated by including cases from different Nations and regions. The lack of examples of meaningful consultation and balanced co-management in large-scale resource use and planning exercises in British Columbia required the examination of a number of best available cases, rather than one case study. Furthermore, by using six cases in a collective, a menu of meaningful framework elements and themes were identified rather than a single description of one case. Comparison and representation of the diversity of resource use issues in British Columbia (forestry, mining, energy, and fisheries) was also best be represented by this broader selection of cases.  114  3.4.2. Case Selection As part of this research, I reviewed the available literature and discussed with my colleagues over twenty prominent cases that might be considered success