Aboriginal Participation in the Vancouver/Whistler 2010 Olympic Games: Consultation, Reconciliation and the New Relationship by Robin Sidsworth A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAW in The Faculty of Graduate Studies (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) August 2010 © Robin Sidsworth, 2010 ii Abstract This thesis investigates Aboriginal participation in the Vancouver/Whistler 2010 Winter Olympic Games to assess the manner in which Aboriginal peoples participated in the 2010 Games and the implications of this Aboriginal participation for the Olympics and Aboriginal participation in British Columbia and Canada more generally. This thesis employs two means for providing the context and developing guidelines from which to assess Aboriginal participation in the 2010 Games. The first considers Aboriginal participation in past Olympic Games, which provides historic examples to contrast against 2010 Games efforts, and describes the Olympic context in which the 2010 Games occurred. Review of past Olympic Games reveals little meaningful Aboriginal participation, but indicates the increasing importance that sustainability issues, such as Aboriginal participation, pose for the Olympic Games. The second consists of the examination of jurisprudence addressing how Aboriginal peoples are expected to participate in projects and decision making processes in light of the constitutional protection afforded to Aboriginal rights and title. This jurisprudence review reveals that legal guidelines emphasize the need for meaningful Aboriginal participation to advance the purposes of recognition and reconciliation, that these purposes require greater consultation and accommodation of Aboriginal peoples, and that currently the Crown is struggling to structure positive responses to this judicial guidance. Following these two examinations, this thesis turns its attention specifically to Aboriginal participation in the 2010 Games. The utilization of the historic Olympic and Canadian legal contexts to assess the 2010 Games reveals that iii the Aboriginal participation which occurred was largely successful and praiseworthy. Aboriginal participation in the 2010 Games far exceed that of previous Olympics, and marks a significant improvement on much of the efforts to pursue Aboriginal participation assessed by the judiciary. This indicates that Aboriginal participation in the 2010 Games holds significant lessons for both the Olympics, and those seeking more effective Aboriginal participation in British Columbia and Canada. iv Table of Contents ABSTRACT.......................................................................................................................................................... ii TABLE OF CONTENTS................................................................................................................................... iv LIST OF ABBREVIATIONS ........................................................................................................................... vi ACKNOWLEDGMENTS ...............................................................................................................................viii CHAPTER 1: INTRODUCTION .................................................................................................................... 1 1.1 HISTORY OF INDIGENOUS/ABORIGINAL PEOPLES AND THE OLYMPICS ................................................... 5 1.2 LAW SURROUNDING ABORIGINAL RELATIONS: JURISPRUDENCE AND POLICY ...................................... 7 1.3 ABORIGINAL PARTICIPATION IN THE 2010 GAMES ................................................................................ 11 1.4 IMPLICATIONS FOR OLYMPIC AND ABORIGINAL PARTICIPATION CONTEXT ......................................... 14 CHAPTER 2: HISTORY OF ABORIGINAL PARTICIPATION IN THE OLYMPIC GAMES ..... 17 2.1 INTRODUCTION......................................................................................................................................... 17 2.2 FOUNDING OF THE MODERN OLYMPICS & EARLY GAMES.................................................................... 17 2.3 MONTREAL SUMMER OLYMPIC GAMES 1976......................................................................................... 25 2.4 CALGARY WINTER OLYMPICS 1988........................................................................................................ 30 2.5 THE OLYMPIC MOVEMENT’S AGENDA 21 FOR SUSTAINABLE SPORT ................................................... 36 2.6 SYDNEY SUMMER OLYMPICS 2000 ......................................................................................................... 40 2.7 SALT LAKE CITY WINTER OLYMPICS 2002 ............................................................................................ 49 2.8 DISCUSSION .............................................................................................................................................. 52 CHAPTER 3: THE CONSTITUTION ACT, 1982, AND ABORIGINAL PARTICIPATION ............. 56 3.1 INTRODUCTION......................................................................................................................................... 56 3.2 SECTION 35(1), RECOGNITION, & RECONCILIATION ............................................................................ 60 3.2.1 Discussion of Early Aboriginal Consultation Jurisprudence....................................................... 72 3.3 CONSULTATION, ACCOMMODATION AND UNPROVEN RIGHTS.............................................................. 76 3.3.1 Discussion of Consultation and Accommodation.......................................................................... 91 3.4 JUDICIAL REVIEW OF CONSULTATION AND ACCOMMODATION EFFORTS............................................. 96 3.4.1 Discussion - Application of Consultation and Accommodation.................................................110 3.5 APPLICATION OF LEGAL CONTEXT TO THE 2010 GAMES EXAMINATION ........................................... 112 CHAPTER 4: ABORIGINAL PARTICIPATION IN THE 2010 GAMES .......................................... 117 4.1 INTRODUCTION....................................................................................................................................... 117 4.2 OVERVIEW OF 2010 OLYMPIC GAMES HOSTING PROCESS .................................................................. 122 4.3 ABORIGINAL PARTICIPATION IN THE 2010 GAMES – THE BID PHASE ................................................ 123 4.3.1 The Domestic Bid ..........................................................................................................................123 4.3.2 The International Bid ....................................................................................................................126 4.3.3 The International Bid – Broad Aboriginal Participation ...........................................................128 4.3.4 The International Bid – Local Aboriginal Participation ............................................................130 4.3.5 The Bid Phase: Discussion ...........................................................................................................155 4.4 ABORIGINAL PARTICIPATION IN THE 2010 GAMES: THE ORGANIZATION PHASE ............................. 161 4.4.1 Organization Phase: The Implementation of the SLA ................................................................163 18.104.22.168 Implementing the SLA – Whistler Nordic Centre and Contracting Opportunities ......................... 163 22.214.171.124 Implementation of the SLA – Separate Agreement for Highway Expansion.................................. 205 126.96.36.199 Implementation of the SLA – Housing Legacy ................................................................................. 220 188.8.131.52 Implementation of the SLA – Cultural Centre................................................................................... 222 184.108.40.206 Implementation of the SLA – Shared Ownership of Facilities & Endowment Fund...................... 225 220.127.116.11 Implementation of the SLA – Transfer of Lands for Development..................................................... 227 18.104.22.168 Implementation of the SLA – Skills and Training Legacy Project...................................................... 232 22.214.171.124 Implementation of the SLA – Summary................................................................................................ 233 4.4.2 The Implementation of the MOU..................................................................................................235 4.4.3 The Four Host First Nations ........................................................................................................240 v 126.96.36.199 The Four Host First Nations – Development of the Four Host First Nations ..................................... 241 188.8.131.52 The Four Host First Nations – Formal Relationship with VANOC ................................................. 245 184.108.40.206 The Four Host First Nations: Economic Development ........................................................................ 252 220.127.116.11 The Four Host First Nations: Cultural Awareness and Education ................................................... 264 18.104.22.168 The Organizational Phase – FHFN: Aboriginal Youth in Sport....................................................... 272 22.214.171.124 The Four Host First Nations – Communication and Relationship Development ............................ 273 126.96.36.199 The Four Host First Nations: Summary................................................................................................. 279 4.4.4 The Organization Phase – Discussion .........................................................................................280 4.5 HOSTING THE 2010 GAMES ................................................................................................................... 283 4.5.1 The Hosting the 2010 Games – Aboriginal Representation During the 2010 Games.............284 4.5.2 Hosting the Olympic Games – Discussion...................................................................................287 CHAPTER 5: CONCLUSION - IMPLICATIONS OF ABORIGINAL PARTICIPATION IN THE 2010 GAMES.................................................................................................................................................... 289 5.1 IMPLICATIONS FOR THE OLYMPIC GAMES ............................................................................................ 290 5.2 IMPLICATIONS FOR ABORIGINAL PARTICIPATION, CONSULTATION AND ACCOMMODATION ............ 296 BIBLIOGRAPHY............................................................................................................................................ 306 vi List of Abbreviations “2010 Games” Vancouver/Whistler 2010 Winter Olympic and Paralympic Games Organizing Committee “Agenda 21” International Olympic Committee, Olympic Movement’s Agenda 21: Sport for sustainable development “Bid” Vancouver/Whistler 2010 Games International Bid “Bid Book” Vancouver 2010 Bid Corporation, Vancouver 2010 Olympic Winter Games Bid Book Submission to the International Olympic Committee “Bid Corporation” Vancouver 2010 Bid Corporation (Vancouver/Whistler 2010 Olympic and Paralympic Winter Games International Bid Corporation) “Bid Society” Vancouver/Whistler 2010 Olympic and Paralympic Winter Games Domestic Bid Society “BCCA” British Columbia Court of Appeal “Crown” Provincial and/or Federal Governments “Cultural Centre” Squamish Lil’wat Cultural Centre “FHFN” Four Host First Nations (Squamish, Lil’wat, Musqueam and Tsleil- Waututh First Nations) “FHFN Protocol Agreement between FHFN made 2004 Agreement” “FHFNS” Four Host First Nations Secretariat “EAO” British Columbia Environmental Assessment Office “MOU” Memorandum of Understandings between Bid Corporation and Musqueam, and Bid Corporation and Tsleil-Waututh “MPA” Agreement between British Columbia, Canada, City of Vancouver, Resort Municipality of Whistler, Canadian Olympic Committee, Canadian Paralympic Committee, Canadian Olympic Committee, and Vancouver 2010 Bid Corporation entitled Multi-party Agreement vii “Organizing Bid Society, Bid Corporation and VANOC Committees” “Protocol Agreement” Agreement between Squamish Nation and Lil’wat Nation executed March, 2001 “SCC” Supreme Court of Canada “Statement” Statement of Principles Agreement between VANOC and FHFN “SLA” Agreement between Province of British Columbia, Bid Corporation, Squamish and Lil’wat entitled “Partners Creating Shared Legacies from the 2010 Olympic and Paralympic Winter Games” “VANOC” The Organizing Committee for the Vancouver/Whistler 2010 Olympic and Paralympic Winter Games “WNC” Whistler Nordic Centre viii Acknowledgments My time in the Master of Laws program at UBC has been one of great joy and illumination, an enriching experience only possible with the support of many friends, family, colleagues, and mentors. I am constantly amazed by the good fortune I have had in the human resources department. I would like to extend special thanks to Professor Joe Weiler, whose mentorship has meant the world. Your enthusiasm for this research was always infectious, your insights invaluable, and you motivated me to make the most of this year. You placed more energy into my success than I could have hoped for, and I am forever grateful. I must also thank Tom Isaac, who first introduced me to the world of Aboriginal law, and whose passion for the subject has always been a source of inspiration. I also owe a debt of gratitude to Professor Karin Mickelson, without whom this year would not have been possible. I must also express my appreciation for Joanne Chung and her tireless ability to answer all my graduate studies questions. Thanks also to Professor Mary Liston, and the other students in the LLM program, who made my Thursdays extremely enlightening, and always entertaining. Susie, Margie, Mum and Dad, you’re stuck with me, yet you never seem to complain. I love you. You have all put up with my endless ability to discuss my thesis, and turn even the most interesting of conversations back to the subject of my research. I promise to be more interesting at family dinners, on long walks, and over the phone. Mum, I owe you special thanks for all your editing skills, your willingness to have long conversations on Aboriginal law, and your uncanny ability to get me back on track no matter how far I may have wandered (which was mostly around campus). Thank you most of all to Clare, I love you. Your support and love made this year especially amazing, and I couldn’t have asked for a better partner in adventure. Who else could move so gracefully from snorkeling to constitutional debate, and make a backpack look so good? You bore the brunt of my thesis musings, for which you probably deserve a graduate degree of your own. You made me laugh and smile the whole year through, and your cookies kept me fueled during the last hours. I really really promise to be more interesting over dinner. Did I mention I love you? A last bit of thanks to Zeus, the Baron, and subprime mortgages, I couldn’t have done it with you. 1 Chapter 1: Introduction The Olympic Games have a unique ability to transform a host city, region or country not only physically and economically, but also socially and politically. This transformative power of the Olympic Games can have both positive and negative effects. The displacement of the homeless and impoverished, environmental degradation, restriction of civil liberties, legacies of rarely used Olympic facilities and substantial economic deficits all have their place in Olympic history. However, such negative outcomes do not preclude the potential for the Olympics to be a catalyst for significant positive change. In the case of the Vancouver/Whistler 2010 Olympic and Paralympic Games (the “2010 Games”), one of the greatest opportunities for redefining social policy was sparked by the 2010 Games organizers’ commitment to strengthening and promoting First Nations relationships both within the Aboriginal community and with the rest of society through the involvement of the Four Host First Nations1 (the “FHFN”) as partners in the operation and management of the 2010 Games. The historic relationship between Aboriginal people, the Crown and the private sector in Canada can hardly be described as positive. However, changes in constitutional law, advances in the common law, exertion of political pressure by Aboriginal groups, changes in governmental polices, and an increasing focus on corporate social responsibility have provided reason to believe that the marginalization of Aboriginal peoples may be addressed, and relationships based on mutual respect and understanding are within reach. As Canadian and Aboriginal policy makers set the stage for the twenty- first century, and the private sector continues to struggle with its role in Aboriginal 1 Group comprised of the Lil’wat Nation, Musqueam Nation, Squamish Nation & Tsleil-Waututh First Nation. 2 relations, it is increasingly clear that structuring positive Aboriginal inclusion and participation into all forms of development is of paramount importance. This paper seeks to examine the nature and content of Aboriginal participation in the context of the 2010 Games, and consider the implications of the 2010 Games for the Olympics more generally, and for the broader participation of Aboriginal peoples in British Columbia and Canada more generally. This examination will demonstrate that the participation of Aboriginal peoples in the 2010 Games far surpasses that of previous Olympics; but more importantly, the paper will focus on practical issues and solutions in regards to the implementation of the Crown’s constitutionally mandated duties to consult and accommodate Aboriginal peoples. To carry out a fulsome examination of Aboriginal participation in the 2010 Games, and consider its implications within the broader context of Aboriginal consultation and accommodation, this paper will focus on three broad subjects: a review of matters related to indigenous or Aboriginal participation in the previous Olympics; a consideration of the jurisprudence and legal doctrine surrounding Aboriginal participation in development projects; and finally a direct examination of the elements which have structured and influenced Aboriginal participation in the 2010 Games. Following these enquiries, further commentary will address the implications of the policies and practices employed by 2010 Games organizers for ensuring cooperative relationships with First Nations groups and the lessons learned for future Olympic hosts. We will also consider the implications of these policies and practices for broader provincial and industry efforts to incorporate Aboriginal participation within their projects. 3 Consideration of Aboriginal participation in past Olympics will include a review of scholarly writings on those experiences, as well as an examination of policy documents, jurisprudence, agreements or other legal material as relevant. Examination of such material will allow for a comparative approach of the 2010 Games to past Olympic experiences in order to determine which practices have produced either positive or negative outcomes in Aboriginal participation. Following the exploration of past Olympic experiences, we will examine the legal doctrine surrounding Aboriginal participation in order to put Aboriginal participation in the 2010 Games into context. In legal parlance, the participation of Aboriginal people in development projects is referred to as consultation and accommodation; therefore, the examination of jurisprudence will focus on the development of common law legal doctrine surrounding the obligation of the Provincial and Federal Governments (the “Crown”) and private sector project proponents to address Aboriginal participation within the implementation of their projects and objectives. This review of jurisprudence will serve the purpose of setting out judicially developed rules for assessing the quality of Aboriginal participation-consultation and accommodation. We will also consider the underlying legal principles which may serve to guide and suggest particular approaches to incorporating Aboriginal participation into all social and economic projects whether private or public. Additionally, scholarly writings on the legal doctrine surrounding Aboriginal participation will be reviewed in order to consider contrasting legal interpretations- those which see constitutional changes, development of common law interpretations, and policy changes as positive, and also deconstructionist approaches which examine these legal subjects as continuations of colonial or imperial policies that may further frustrate Aboriginal 4 peoples. This review of scholarly opinion will offer different perspectives as to how Aboriginal consultation and accommodation may be meaningfully carried out, and suggest structures for Aboriginal participation which meet Aboriginal, Crown, and project proponent needs. With the historical and legal contexts firmly in place, our examination may finally turn to the nature and content of the consultation and participation of Aboriginal peoples in the context of the 2010 Games. This examination will rely upon primary documents from the City of Vancouver, Provincial and Federal Ministries, the Vancouver/Whistler Organizing Committee (“VANOC”) the Four Host First Nations, the Lil'wat Nation, the Musqueam Nation, Tsleil-Waututh Nation, and Musqueam Nations, additional Aboriginal organizations, media reviews, commentators, and the International Olympic Committee (the “IOC”). The 2010 Games have not been subject to much scholarly review to date; however, thesis work which has carried out interviews with those involved in Aboriginal participation in the 2010 Games will also be considered, and any further scholarly writing which becomes available. This review will explore the processes by which Aboriginal participation was pursued by the parties involved, the difficulties which they encountered, the solutions which were crafted to overcome such issues, and the outcomes which Aboriginal participation achieved. Indeed, this examination will seek to more closely consider the processes that governed the extent of Aboriginal participation in the 2010 Games. Close attention will be paid to the consultation, discussions, and negotiations utilized by the parties to guide Aboriginal participation in the 2010 Games. With this review in hand, a more fulsome exploration of the means through which meaningful Aboriginal participation may be pursued, and in 5 perhaps some cogent lessons and suggestions for broader contexts of Aboriginal participation can be elucidated. Below, a brief overview is provided of each of these sections, and their suggestions regarding the meaning and implications of Aboriginal participation in the 2010 Games. 1.1 History of Indigenous/Aboriginal Peoples and the Olympics A review of indigenous/Aboriginal inclusion and participation in past Olympic Games reveals few, if any, lasting legacies for Aboriginal peoples. Largely, indigenous inclusion in the Olympic Games has focused on the utilization and representation of indigenous culture as part of Olympic ceremonies, symbols and emblems.2 In many instances the inclusion of indigenous cultures has been without input from indigenous peoples, such as the utilization of Caucasian actors dressed as traditional Mohawk peoples in Montreal’s opening ceremonies.3 Conversely, in the Sydney Games indigenous representations were guided by indigenous artists and representatives, and Cathy Freeman, an indigenous athlete, became a national hero as a result of her athletic performance and a symbol of Aboriginal success in Australia.4 Regardless, inclusion of Aboriginal groups has largely remained focused on cultural representations. Symbolic inclusion of Aboriginal culture is not without benefits; however, even the more positive Olympic experiences do not appear to have created any positive changes for Aboriginal 2 See Janice Forsyth, “Teepees and Tomahawks: Aboriginal Cultural Representation at the 1976 Olympic Games” in K.B. Wamsley, R.K. Barney & S.G. Martyn (eds.). The Global Nexus Engaged: Past, Present, Future Interdisciplinary Olympic Studies. Proceedings of the Sixth International Symposium for Olympic Research, 2002 at 71-76. See also G. Morgan, “Aboriginal Protest and the Sydney Olympic Games” Olympika: The International Journal of Olympic Studies Vol. XII 2003, 23-38. 3 Ibid. 4 C. Elder, A. Pratt, & C. Ellis, “Running Race: Reconciliation, Nationalism and the Sydney 2000 Olympic Games” (2006), International Review for the Sociology of Sport 41:2 181–200. 6 peoples. 5 While these historical perspectives indicate the Olympics hold little potential to create meaningful progress in Aboriginal relations, it seems apparent that the lack of transformation stems largely from the lack of substantive inclusion of Aboriginal peoples in the development and management of the Games. Aboriginal groups have, prior to the 2010 Games, been consulted almost solely on cultural matters, and left outside of larger planning and development initiatives. While consultation regarding cultural matters is significant in terms of ensuring that Aboriginal culture is accurately represented and treated with respect, it does not include discussions or negotiations around larger land use planning, facilities management, historical recognition of Aboriginal peoples place within a geography, or opportunities and benefits for Aboriginal peoples. These more substantive issues have more ramifications for the future of Aboriginal peoples, and these topics also spark the greatest debate between Aboriginal peoples, the Crown and larger society. Though the Olympics may provide an opportunity to engage in discussion with regards to many of these issues, such opportunities have not been acted upon in previous Olympic Games. Therefore, it is unclear whether more substantive participation in the Olympics will result in lasting, positive, transformative changes for Aboriginal peoples; however, it does seem clear that inclusion in the ceremonial or cultural aspects of the Olympics is not enough to ensure lasting and sustainable change for Aboriginal people and their communities. 5 Ibid. 7 1.2 Law Surrounding Aboriginal Relations: Jurisprudence and Policy While a historic review of the Olympics reveals that hosting the Games is not guaranteed to improved circumstances for Aboriginal peoples and relationships between Aboriginals and government, an examination of recent jurisprudence and policy efforts in Canada would seem to indicate greater potential in the movement towards meaningful transformation of Aboriginal relationships. To date, much of Aboriginal participation has been structured by litigation by Aboriginal plaintiffs seeking to enforce and protect their constitutionally protected Aboriginal rights.6 Section 35(1) of the Constitution Act, 19827 (“s.35 (1)”) has provided the legal means for Aboriginal people to assert and protect their rights. While the judiciary has provided legal interpretation which has protected not only rights associated with a traditional lifestyle such as fishing or hunting rights,8 but also those related to Aboriginal self-determination such as the right of Aboriginal people to be consulted and involved in decision making processes which may affect Aboriginal rights.9 Judicial recognition of overarching concepts such as reconciliation and the honour of the Crown provide principled guidance for Crown efforts in addressing Aboriginal concerns.10 The recognition of a Crown duty to consult and accommodate Aboriginal peoples when it contemplates action which may negatively affect Aboriginal rights or title establishes a legal framework for assessing the Crown’s 6 S. Lawrence & P. Macklem, “From Consultation to Reconciliation: Aboriginal Rights and the Crown’s Duty to Consult” (2000) 79 Can. Bar Rev. 252 at 254-55. 7 The Constitution Act, 1982 Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11 [The Constitution Act, 1982]. 8 See R. v. Gladstone,  2 S.C.R. 723, 137 D.L.R. (4th) 385 (S.C.C.) [Gladstone]. See also R. v. Adams,  3 S.C.R. 10, 138 D.L.R. (4th) 657 (S.C.C.) [Adams]. See also R v. Marshall,  3 S.C.R. 456, 179 D.L.R. (4th) 193 (S.C.C.) [Marshall]. 9 See Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73,  3 S.C.R. 511 [Haida Nation]. See also Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69  3 S.C.R. 388. 10 Shin Imai, “Sound Science, Careful Policy Analysis, and Ongoing Relationships: Integrating Litigation and Negotiation in Aboriginal Lands and Resources Disputes” (2003) 41 Osgoode Hall L.J. 587. 8 administrative approach to consideration and accommodation of Aboriginal concerns. These developments have provided Aboriginal peoples with legal means to protect their rights and title, and to advance a legal basis for greater inclusion in development. As a result, the Crown and private sector have been forced- through litigation or the threat and risk of litigation -to be more inclusive vis-à-vis Aboriginal peoples.11 While many have viewed these changes in legal doctrine as positive, there are many who remain critical of these approaches to consideration of Aboriginal perspectives for continuing colonial practices of subjugating Aboriginal concerns to Crown desires.12 Although some may balk at the notion that the judiciary’s approach would be considered colonial, it is evident from the jurisprudence assessing the Crown’s duty to consult and accommodate Aboriginal peoples that the judicial approach essentially creates parameters for Crown action, but does not ensure Aboriginal peoples will have the involvement they desire in development processes.13 The judicial approach emphasizes the role of the judiciary as assessing the reasonableness of the Crown’s efforts in considering Aboriginal concerns, rather than determining how Aboriginal peoples, the Crown and the private sector can best work collaboratively. In British Columbia, the Provincial Crown, in conjunction with the First Nations’ Tribal Council, responded to such jurisprudence by creating new policies aimed at taking the Crown-Aboriginal relationships in positive directions, focusing on ensuring meaningful Aboriginal participation in decision making processes. The Province’s 11 J.E. Dalton, “Aboriginal Self-Determination in Canada: Protections Afforded by the Judiciary and Government” (2006) 21:1 C.J.L.S.11. 12 See Taiaiake Alfred, Peace, Power and Righteousness: An Indigenous Manifesto (Toronto: Oxford University Press Canada, 1999) See also Glen Coulthard, “Beyond Recognition: Indigenous Self- Determination as Prefigurative Practice” in Leanne Simpson ed, Lighting the Eight Fire (Winnipeg: Arbeiter Ring Publishing, 2008). 13 See e.g. Haida Nation supra note 9 at para. 42 “However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation.” 9 articulation of this commitment in the New Relationship Discussion Paper14 indicated the Provincial Government’s commitment to expressing greater respect for Aboriginal concerns, and focusing on collaboration and consensus in consultation efforts. However, since the release of The New Relationship, litigation and dispute between Aboriginal groups, the Crown and the private sector have continued, revealing a frequent inability of the Crown to take any of the substantive steps to consult Aboriginal groups as contemplated in The New Relationship.15 Indeed, though the Crown’s duty to consult and accommodate Aboriginal peoples lies solely with the Crown, the emphasis is often on the private sector to carry out the substantive procedural steps to ensure appropriate consultation and accommodation of Aboriginal peoples.16 Though this emphasis may seem efficient and practical given that the private sector will be in direct control of a project, it also would seem to ensure that collaborative approaches amongst all the parties are rendered improbable. The challenges and difficulties in determining an appropriate approach to addressing Aboriginal participation were made particularly apparent with the release of an additional discussion paper by British Columbia and First Nations’ Tribal Council in 2009. The Discussion Paper on Instructions for Implementing the New Relationship contemplated a “Recognition and Reconciliation Act” to recognize and affirm Aboriginal 14 British Columbia, Minister of Aboriginal Relations and Reconciliation, The New Relationship, (British Columbia: online: The New Relationship <http://www.newrelationship.gov.bc.ca/shared/downloads/new_relationship.pdf>, 2005) [The New Relationship]. 15 See e.g. Klahoose First Nation v. Sunshine Coast Forest District (District Manager), 2008 BCSC 1642,  1 C.N.L.R. 110 [Klahoose]. 16 See e.g. British Columbia, Environmental Assessment Office, Environmental Assessment Office Users Guide, (British Columbia: online: Environmental Assessment Office <http://www.eao.gov.bc.ca/pub/pdf/EAO_User_Guide_2009.pdf>, 2009) at 7, “The EAO provides a limited amount of funding to assist First Nations to participate in the review process…The EAO encourages proponents to provide First Nations with additional capacity funding to participate in other aspects of the environmental assessment, such as engagement with the proponent during studies and information gathering.” 10 rights and title throughout the province, and provide for co-management of development processes in British Columbia.17 The reaction to this proposed Recognition and Reconciliation Act has been divergent and largely negative. Commentary from the private sector expressed concern that the Recognition and Reconciliation Act could create uncertainty in decision making processes by giving Aboriginal groups an ability to veto projects, and failing to address the coordination of consultation efforts among the Crown, private sector and Aboriginal groups.18 Conversely, Aboriginal groups have indicated there may not be enough consideration for Aboriginal perspectives in the same decision making processes, and that contemplated recognition of Aboriginal rights and title remains insufficient.19 Such polarized views indicate that the meaningful inclusion of Aboriginal peoples in the planning and development of projects affecting them remains fraught with conflict and hurdles. Different perspectives on the role that Aboriginal peoples, the Crown, and private sector should play in land use planning, management and development reveal that although the vast majority of participants believe Aboriginal inclusion must be improved, the manner in which to seek improvement is more contentious. The judiciary has consistently indicated that reaching reconciliation requires the efforts of Crown and Aboriginal participants to negotiate mutually acceptable outcomes. However, the means by which such mutually acceptable outcomes may be 17 British Columbia, Ministry of Aboriginal Relations and Reconciliation, Discussion Paper on Instructions for Implementing the New Relationship (British Columbia: online: Minister of Aboriginal Relations and Reconciliation <http://www.gov.bc.ca/arr/attachments/implementing_the_new_relationship_0309.pdf>, 2009) [“Discussion Paper on New Relationship”]. 18 Tom Isaac. & Keith Clark, “Legal Observations Concerning the Discussion Paper on Instructions for the Implementation of the New Relationship”, Legislative Comment on Discussion Paper on New Relationship ibid. online: John Cummins M.P. Delta-Richmond East <http://www.johncummins.ca/docs/>. 19 Woodward and Co., “Aboriginal Rights Lawyers Respond to Proposed Recognition Legislation” Legislative Comment on Discussion Paper on New Relationship ibid. online: Woodward and Co. News Archives http://www.woodwardandcompany.com/newsarchive.html. 11 created remain elusive, as does the role that the Crown, private sector and Aboriginal peoples should take in crafting such outcomes. 1.3 Aboriginal Participation in the 2010 Games In the context of the 2010 Games the consultation and participation of the Four Host First Nations appears to be taking the relationship between the Crown, private sector and these Aboriginal groups in a positive, cooperative direction. The parties involved have espoused the importance of developing partnerships between them in association with hosting the 2010 Games and stressed the positive changes which hosting has brought to their relationship.20 The development of this Aboriginal-governmental relationship surrounding the 2010 Games may have far reaching implications for future relations in a wide range of substantive governance areas that are entirely unrelated to mega-event preparation and management. Creation of these Olympic partnerships and cooperative management systems may influence protocols for joint management of other resource developments in British Columbia, emerging governmental policy making, as well as more formal legislative efforts aimed at defining Aboriginal rights and co- management roles, and the perceived benefits and challenges of co-venturing with Aboriginal groups. Examining the processes which structured Aboriginal participation in the 2010 Games reveals a number of significant elements which defined the content and intended outcomes of Aboriginal participation throughout the planning, development and hosting of the Games. While these detailed aspects of Aboriginal participation are 20 Catherine Hilary Dunn, “Aboriginal Partnerships for Sustainable 2010 Olympics and Paralympic Winter Games: A Framework for Cooperation” (M.R.M. Thesis, Simon Fraser University School of Resource and Environmental Management, 2007) online: Simon Fraser University Institutional Repository <http://libir.lib.sfu.ca/bitstream/1892/9245/1/etd2940.pdf> at 104-09. 12 certainly important, the research will demonstrate that the following elements are those which set the substantive structure of Aboriginal participation: i. early inclusion of Aboriginal participation in bid process; ii. coordination of efforts between Squamish and Lil’wat Nations through protocol agreement; iii. creation of Shared Legacies Agreement between Squamish and Lil’wat Nations, and the Vancouver Bid Corporation, and Provincial Government; iv. execution of a memorandum of understanding between the Musqueam and Lil’wat Nations and Vancouver Bid Corporation; v. creation of Four Host First Nations Society and Secretariat, coordinating the efforts between Squamish, Lil’wat, Musqueam and Tsleil-Waututh Nations; vi. creation of protocol agreement between the FHFN and VANOC; vii. creation of legacies protocol between the FHFN and Legacies Now; and viii. creation of Olympic Legacies Agreement between the Musqueam and Tsleil- Waututh and the Federal Government. These above elements shared the structure of Aboriginal participation, but also formed the framework for the benefits and issues faced by Organizing Committees, the FHFN, and the Crown during the planning and organization of the Games. Benefits to the parties included: creation of an Aboriginal Youth Sport Fund; commitment to providing procurement and employment opportunities to FHFN members; co-venturing between Squamish and Lil’wat Nations with private sector companies to develop Nordic centre sites; creation of the Squamish/Lil’wat Cultural Centre; creation of a specific Aboriginal Licensing and Merchandising Program; provision of 300 acres of Provincial Crown land to Squamish and Lil’wat Nations in fee simple; provision of $18 million CDN to the Musqueam and Tsleil-Waututh Nations for the purchase of lands to address issues in reserve size; and the strengthening and building of relationships internally amongst the FHFN and externally with the private sector and Crown. Although these benefits have made Aboriginal participation in the 2010 Games largely a success, there have undoubtedly been a number of issues and challenges which 13 the parties also had to address. The inclusion of the Musqueam and Tsleil-Waututh occurred later than the Squamish and Lil’wat, and subsequent to the majority of the benefits for the Squamish and Lil’wat Nations being agreed upon. This required the Musqueam and Tsleil-Waututh to participate throughout the organization of the 2010 Games with a great deal of trust that VANOC and the Provincial and Federal Crowns would ultimately provide similar benefits to all the FHFN. Though the Federal Government ultimately produced on the promises of the Vancouver Bid Corporation and VANOC, this inequality amongst the FHFN did create a tension amongst the nations. Additionally, outside factors and agents such as “No 2010 Olympics on Stolen Native Land”21 and the Hudson’s Bay Company22 have created controversies which have coloured the public’s perception of Aboriginal participation in the 2010 Games, and posed serious challenges to the relationships between VANOC, the FHFN, and the Crowns. However, these issues, although posing difficulties, may also be seen as areas of success for the 2010 Games and Aboriginal participation. The FHFN have remained intact, coordinated, and successful despite internal tensions; the trust displayed by the Musqueam and Tsleil-Waututh was ultimately well-placed and rewarded, and external controversies have often been addressed by the FHFN to create positive resolutions.23 21 No 2010 Olympics on Stolen Native Land, Native Resistance Threatens Olympic Illusions, online: No 2010 Olympics on Stolen Native Land <http://no2010.com/node/936>. 22 Sandra McCulloch & Lindsey Kines, “Olympic sweaters just knock-offs: Native artisans” The National Post (7 October 2009), online: The National Post <http://www.nationalpost.com/news/story.html?id=2079294>, “When Sawyer-Smith [Cowichan native artisan] saw the sweaters to be worn by the Canadian Olympic team and sold at retail outlets across the country, she felt she had been robbed, ‘like they were taking something away from what was originally Cowichan's.’ Cowichan Valley NDP MLA Bill Routley called the decision a ‘tragedy.’ He said Campbell [Premier of British Columbia] talks about a new relationship with Aboriginal people and about providing them with economic opportunities. ‘Well, this is one that's been sadly missed…’”. 23 See Rob Mikelburgh, “A $6 million symbol of a native partnership that will fully enrich the Olympics” Globe and Mail (11 December 2009) online: The Globe and Mail <http://www.theglobeandmail.com/news/national/a-6-million-symbol-of-a-native-partnership-that-will- fully-enrich-the-olympics/article1392236/> “Mr. Joseph [CEO of the FHFN] recently lashed out at self- 14 The efforts of the FHFN, the Organizing Committees and the Crown appear to have resulted in largely positive results not only for Aboriginal peoples, but also for VANOC and the Crown. The inclusion of the FHFN as official co-hosts of the Olympics has imbued the 2010 Games with cultural richness, and at least partially addresses some issues of social sustainability for which the Olympics are so often criticized. The level of participation goes far beyond the symbolic and cultural, with Aboriginal community members having had greater opportunities for training and employment, the Nations to garner exceptional experience in project management, the provision of direct economic benefits, and the inclusion of Aboriginal concerns and perspectives in all elements of hosting. This far surpasses previous Olympic efforts with regards to including Aboriginal peoples, and also appears to embody the form of consultation and collaboration the judiciary, Crown and Aboriginal peoples have been attempting to articulate. 1.4 Implications for Olympic and Aboriginal Participation Context Given the dynamic nature of Aboriginal participation in larger development and decision making processes and the historic inability of the Olympic Games to illustrate a definitive ability to alter Aboriginal relations, expecting specific elements of the 2010 Games to transform larger contexts of Aboriginal participation can be considered highly styled native "warriors" opposed to the Games, accusing them of wanting natives to ‘remain forever the dime-store Indian, the lone figure at the end of a gravel road, trapped in the isolation of an inner-city nightmare.’ Chief Williams [Squamish Nation] said those advocating ‘No Olympics on Stolen Native Land’ are misguided. ‘They haven't researched their own history. What lands are they talking about? We know every inch of our traditional territory. No one has to tell us about stolen land. The point is what you create on the land.’” See also Daphne Bramham, “Cowichan, HBC meet over dispute [sic] Olympic sweaters” The Vancouver Sun (27 October 2009) online: The Vancouver Sun http://www.vancouversun.com/Cowichan+meet+over+dispute+Olympic+sweaters/2152022/story.html , “Tewanee Joseph, chief executive of the Four Host First Nations, helped arranged Tuesday's meeting after speaking to Hudson's Bay officials in Toronto last week.” 15 tenuous. However, if one considers the trend towards the Crown and the private sector focusing more directly on achieving meaningful Aboriginal participation, the challenges in achieving such an objective, and the elements of Aboriginal participation in the context of the 2010 Games, it would seem there may indeed be implications for broader sectors and circumstances. First, a greater emphasis on direct incorporation of Aboriginal concerns through the inclusion of Aboriginal peoples on management boards or advisory committees may become an expected approach, rather than mere consultation. Second, an increased focus on ensuring that Aboriginal peoples benefit from development which affects them, rather than simply ensuring that development considers Aboriginal perspectives, is almost certain to become a consistent aspect of development planning. Third, the Crown may take a more direct approach in collaborating with Aboriginal peoples and the private sector in determining how best to incorporate and accommodate Aboriginal concerns. The Olympics has illustrated the benefits of having the Crown, private sector and Aboriginal communities work in conjunction to determine how development may be directed to create such benefits; however, the inertia of current practices which so often see discussion and negotiation efforts fractured amongst the relevant parties may prove challenging to overcome, and require a complete re-appraisal of the role each plays in the decision-making processes. Fourth, the Olympics should provide a high profile example of the success that co-management of projects can obtain through the inclusion of Aboriginal partners. It appears that one of the current issues vocalized by the private sector is concern that Aboriginal communities may frustrate project efforts rather than enhancing them. The Olympics would seem to provide a clear indication that this is not 16 necessarily the case, and that partnering with Aboriginal communities can be highly successful, particularly when those communities share a common vision with their private sector and Crown partners. Fifth, and finally, the experiences of the 2010 Games may indeed signal a concerted shift in level of accommodation that Aboriginal groups may receive in relation to development project. This may suggest that Aboriginal peoples face new challenges and decisions within their communities regarding the manner in which they wish to participate in project development, and may suggest that Aboriginal peoples will face new pressures in relation to the manner in which they participate. 17 Chapter 2: History of Aboriginal Participation in the Olympic Games 2.1 Introduction As discussed in brief during the introduction, Aboriginal peoples have had a significant history of participation in past Olympic Games. A review of these past Olympic experiences will provide context from which to assess the 2010 Games. Additionally, consideration of scholarly commentary on these past experiences may also reveal different perspectives and vantage points from which to assess Aboriginal participation, and in particular, highlight underlying issues in Aboriginal participation which are not be readily apparent during the flash and excitement of the Olympics. As will be revealed below, the story of Aboriginal participation in the Olympics is storied; touched by success, but perhaps marked more heavily by conflict and missed opportunities. 2.2 Founding of the Modern Olympics & Early Games The modern Olympic Games began in Athens in the summer of 1896, when the Summer Olympic Games were held as part of the larger World’s Fair.24 This marked the culmination of years of effort on the part of Baron Pierre de Coubertin, the man who had initiated the revival of the Olympic Games. Prompted by the defeat of his country by the Germans in the Franco-Prussian war, Baron de Coubertin became convinced that the young men of France were lacking sufficient physical and mental fortitude.25 Inspired by the more structured approaches to enhancing physical fitness in countries such as 24 The Olympic Museum, The Modern Olympic Games, online: International Olympic Committee: The Olympic Museum <http://multimedia.olympic.org/pdf/en_report_668.pdf>. 25 Kevin B. Wamsley, “The Global Sport Monopoly: A synopsis of 20th century Olympic politics” (2002) 57 Int’l J. 395 at 396. 18 Germany, Denmark, Sweden and Britain, Baron de Coubertin sought to develop a similar physical culture within French schools.26 However, the Baron did not find much support for his suggestions in France, and this prompted him to consider alternative means to developing France’s physical culture.27 He again found inspiration abroad, but in this instance, his inspiration was the large sporting festivals such as the German Turnfests, Scottish Highland Games, and most importantly, the English Olympic Games at Much Wenlock and the Ancient Olympic Games which caught Baron de Coubertin’s attention.28 Baron de Coubertin saw such sporting festivals as a means of fostering the physical and mental fortitude of the country’s young men, but he was equally struck by the popularity of world’s fairs which routinely attracted millions of visitors, and the ability of such fairs to attract the public attention. A sporting event that could attract the same public attention would be truly influential.29 Armed with such ideas, Baron de Coubertin gathered a group of wealthy sport leaders and enthusiasts at an 1894 conference in Paris with the intention of developing an international body to organize and operate an international sporting festival. The culmination of this conference was the development of the International Olympic Committee, which was founded not only as a committee to further amateur sport, but also to further the mandate of fair play and cooperation which would become the basis of “Olympism”.30 26 Ibid. at 396-7. 27 Ibid. 28 Ibid. 29 Ibid at 397-8. 30 Ibid. 19 The Olympic Charter, adopted by the International Olympic Committee, describes Olympism as follows: “A philosophy that placed sport at the centre of a universal campaign for peace and international understanding. Blending sport with culture and education, Olympism seeks to create a way of life based on the joy found in effort, the education value of good example and respect for universal fundamental ethical principles. The goal of Olympism is to place sport at the service of the harmonious development of man, with a view to promoting a peaceful society concerned with the preservation of human dignity….”31 The grounding of the Olympics in such an ideology lent this event a unique quality not shared with comparable events, ensuring that the public’s perceptions and expectations of the Olympics would be intrinsically tied to successes and failures outside of the sporting arena. While the early games following Athens were associated with world fairs in Paris, St. Louis and London, and did not attract significant public attention, the Olympics gained increasing notoriety as the 20th century continued, and quickly took on an increased social and political significance – a socio-political dimension that has only increased with each successive staging of the games. Indeed the history of the modern Olympics reveals it as an event which has been utilized as a tool for political gain, self- promotion, propaganda, protest, and nation building. Most prominently, the Nazi Games of 1936 saw Hitler use the Olympic Games to showcase the capacity and capabilities of post World War I Germany;32 the Munich Games of 1972 were marred by the death of 31 International Olympic Committee, Olympic Charter, Fundamental Principles of Olympism, online: International Olympic Committee <http://multimedia.olympic.org/pdf/en_report_122.pdf> at 11. 32 Arnd Kruger & William Murray, The Nazi Olympics: Sport, Politics, and Appeasement in the 1930s (Urbana: University of Illinois Press, 2003) 20 Jewish athletes, killed during the terrorist attacks;33 and the Olympic Games of 1980 and 1984 saw boycotts carried out by the democratic and communist states against Games hosted by Russia and the United States respectively.34 It is in this complex context that Aboriginal participation has occurred, and indeed, the historical involvement of Aboriginal and indigenous peoples throughout the modern Olympics undoubtedly reflect the complex charter of the Olympic Games. The participation of Aboriginal peoples in the modern Olympic Games began early in Olympic history, and was typified by the participation of Aboriginal peoples as athletes, although in the first instance, this participation was more than dubious. The St. Louis Olympic Games in 1904, held in conjunction with the Louisiana Purchase Exposition, was closely associated with an event known as “Anthropology Days” in which: “…three thousand indigenous men and women from all over the world who came to St. Louis to serve as demonstrators, educations, research subjects and entertainers…agreed to participate in athletic competitions and demonstrations of physical ability during the fair’s eight month tenure.”35 These “Special Olympics”36 were organized by the Anthropology Department of the Louisiana Purchase Exposition’s William McGee, and James E. Sullivan, head of the Department of Physical Culture and one of the most power figures in U.S. amateur sports, for the combined purpose of demonstrating the “many long chapters of human 33 Richard Mandell, The Olympics of 1972: a Munich Diary (Chapel Hill: The University of North Carolina Publishing, 1991). 34 Allen Guttmann, “The Cold War and the Olympics” (1988) 43 Int’l J. 554. 35 Nancy J. Parezo, “Chapter I A ‘Special Olympics’: Testing Racial Strength and Endurance at the 1904 Louisiana Purchase Exposition” in S. Brownell ed., The 1904 Anthropology Days and Olympic Games: Sport, Race, and American Imperialism, (Lincoln: University of Nebraska Press, 2008) at 59. 36 Ibid. 21 evolution” and to illustrate that “…American athletes were the best in the world, superior to all other races and cultures.”37 McGee took charge of recruiting the indigenous participants, gathering them from pavilions throughout the fair, as well as Native Americans from a nearby “Indian School”, paying them to participate in the Anthropology Days.38 The indigenous participants then competed in contests such as “spear and baseball throwing, shot put, running, broad jumping, weight lifting, pole climbing and tugs-of-war”39 and their performance was measured against existing records to determine the athletic comparability between the indigenous cultures and American.40 When the indigenous participants performed far below the American records, Sullivan held this up as proof of the superiority of American and Caucasian athletes.41 While the use of the Anthropology Games as means to advance an agenda of “scientific racism” was clearly evident, at least one group of Aboriginal participants did not play the role in which they had been cast. The fair included a “Model Indian School” pavilion, which was attended by a girls’ basketball team from an Indian boarding school in Montana that had won the state’s first basketball championship.42 The Native American girls attending the Model Indian School played exhibition basketball games throughout the summer of the Louisiana Purchase Exposition, and following the defeat of the “Missouri All-Stars, alumnae of 37 Ibid. at 60. 38 Susan Brownell, “Introduction: Borides Before Boas, Sport before the Laughter Left” in S. Brownell ed. The 1904 Anthropology Days and Olympic Games: Sport, Race, and American Imperialism, (Lincoln: University of Nebraska Press, 2008) at 4. 39 Parezo, supra note 35 at 59. 40 Brownell, supra note 38. See also Lew Carlson, “Giant Patagonians and Hairy Ainu: Anthropology Days at the 1904 St. Louis Olympics” (2004) 12:3 Journal of American Culture 19. 41 Ibid. 42 Linda Peavy & Ursula Smith, “‘Leav[ing] the White[s]…Far Behind Them’: The Girls from Fort Shaw (Montana) Indian School, Basketball Champions of the 1904 World’s Fair” (2007) 24:6 The International Journal of the History of Sport 819 at 819. 22 Central High School in St. Louis”, the “…girls from Fort Shaw Indian School in Montana were ‘basket ball’ champions of the 1904 St. Louis World’s Fair”.43 While the obvious over tones of racism in Anthropology Days are blatantly obvious now, even at that time they were viewed with distain by many, including de Coubertin who stated about the Anthropology Days: “Nowhere else but in America would anyone have dared to put such a thing in the program of an Olympiad.”44 The success of the Forts Shaw Indian School girl’s basketball team may have marked a highlight of Aboriginal participation in relation to the 1904 Olympic Games, although the dubious nature of organizing a “Model Indian School” as a pavilion for the entertainment of fair goers certainly colours their exploits, leaving their success in basketball marred by its association with the Anthropology Days, and the Louisiana Purchase Exposition’s general presentation of indigenous cultures. While Anthropology Days and the Model Indian School may have been more closely associated with the Louisiana Purchase Exposition, and have been a greater reflection of the St. Louis fair organizers than the Olympic Games themselves, the link between Anthropology Days, and the girls of the Fort Shaw Indian boarding school, and the Olympics is nevertheless present, and marks an obviously dark chapter in the association of Aboriginal and indigenous peoples with the Olympic Games. It would not be long; however, before Aboriginal athletes again featured prominently in the Olympic Games, most notably, highlighted by Jim Thorpe who won two gold medals for the United States of America in the Stockholm Games of 1912.45 Thorpe, a 43 Ibid. at 820. 44 Brownell, supra note 38 at 48. 45 Mark Dyreson, “Olympic Games and Historical Imagination: Notes from the Fault Line of Tradition and Modernity” in Barney R. et al. eds., Global and Cultural Critique: Problematizing the Olympic Games. 23 Sac and Fox Indian, was highlighted by the American press as “proof that the United States had no racial barriers in athletics”.46 Though Thorpe may have been revered by the American Press,47 his achievements were ultimately sullied when James E. Sullivan (of Anthropology Days notoriety) as head of the United States Amateur Athletic Union rescinded Thorpe’s amateur status for his participation in professional summer baseball leagues, which prompted the International Olympic Committee to strip Thorpe of his medals and records.48 Thorpe’s participation in the summer baseball leagues earned him approximately two dollars a game, barely enough to cover his living expenses.49 Ultimately, Thorpe would have his gold medals returned 70 years following the Stockholm Games, and 30 years after his death, on the basis of a technicality; that his professional participation was in a sport in which he did not compete as an Olympic athlete, a point which had been raised by numerous newspapers and commentators at the time of the Thorpe scandal.50 While Thorpe was undoubtedly the best known Aboriginal athlete in the Olympic Games, he was not the only athlete to capture the attention and adoration of the public and press. Lewis Tewanima, a Hopi Indian, and one of the United States best distance runners at the 1908 and 1912 Olympic Games, was also highlighted by the American Press as a further indication of the racial harmony within American athletics. Fourth International Symposium for Olympic Research (London, ON: University of Western Ontario International Centre For Olympic Studies, 1998) 21 at 25. 46 Ibid. 47 Mark Rubinfeld, “The mythical Jim Thorpe: Re/presenting the twentieth century American Indian” (2006) 23:2 International Journal of the History of Sport 167 at 171-72. 48 Ibid. at 172. 49 Ibid. at 173. 50 Ibid. at 173-4. 24 Mark Dyreson in his discussion of the way in which history is depicted in an Olympic context elaborates: “In 1908 in an archetypical photograph in the New York Times, the press made Tewanima a symbol of a supposedly race-blind society as the runner danced a Fourth-of-July jig for his teammates as the United States Olympic team steamed across the Atlantic to the London Olympics…Tewanima’s sport transformed traditional ritual into a modern rite for American patriotism. The press transformed traditional symbols into vehicles for selling modern visions.”51 Even at these earliest of Olympic Games, it was clear that the participation of Aboriginal peoples had implications far beyond the athletic events and venues. Numerous authors have noted that the Olympics has, almost from the outset, been imbued with a social and political character unlike any other global event, and it is evident from the stories above, that this element was particularly salient for Aboriginal participation in the early games. Yet the participation of Aboriginal peoples in the Olympic Games remained largely in the realm of athletic events; “exotic” Aboriginal athletes might catch the attention of the public as did Thorpe and Tewanima. However, the Olympic Games were a rapidly changing event which increasingly caught the public’s attention as they gained in notoriety.52 The Olympics quickly moved outside of the world fair’s canopies, establishing itself as one of the global community’s premier events. There was a significant increase in the public attention garnered by the event, and an increase in the pomp, circumstance and ceremony. As Olympic hosting requirements expanded in scope, so to did the efforts of organizers, who sought to use the Olympics as a means to many ends, including the ever-present promotion of hosts as model political and cultural 51 Dyerson, supra note 46 at 27. 52 See Christine O’Bonsawin, “Construction of the Olympian First Sisters by the Canadian Press” in Wamsley, Barney & Martyn supra note 2, 193 (O’Bonsawin examines the treatment of Canadian cross- country skiers Sharon and Shirley Firth of the Loucheaux-Métis Indians of the Northwest Territories, and their participation in the 1972-1984 Winter Olympic Games). 25 systems in order to attract tourism and investment. As the Olympics changed, so did the context of Aboriginal participation in the Games, along with its meaning and implications for the Aboriginal and non-Aboriginal communities alike. Aboriginal participation has featured prominently in four, relatively, recent Olympic Games: the 1972 Montreal Summer Games, 1988 Calgary Winter Games, 2000 Sydney Summer Games and the 2002 Salt Lake City Winter Games. Undoubtedly there were other Olympic Games hosted during that period in which Aboriginal people may have been expected to participate. However, an examination of those Olympics which sought to feature Aboriginal participation more prominently will reveal the successes and failures of past Olympics, and may provide points of contrast from which to assess the efforts of Vancouver 2010. In addition to the specific involvement of Aboriginal peoples in these four Olympic Games, it is also necessary to consider a significant milestone in the history of the International Olympic Committee, and the Olympic movement, namely, the adoption of Agenda 2153 by the IOC and its meaning for Aboriginal peoples in subsequent Games. 2.3 Montreal Summer Olympic Games 1976 The Montreal Olympic Games in 1976 marked Canada’s first Olympic hosting experience, and provided the impetus for two exceptionally different displays of Aboriginal culture in association with the Summer Games. The first was the development by the Kahnawake Mohawks of “Indian Days”; this event was staged by the Kahnawake to coincide with the 1976 Olympics, and was developed to attract Olympic 53 International Olympic Committee, Olympic Movement’s Agenda 21: Sport for sustainable development (online: International Olympic Committee Sport and Environment Commission <http://multimedia.olympic.org/pdf/en_report_300.pdf>) [Agenda 21]. 26 spectators to the Kahnawake reserve community located some 40 km southwest of Montreal.54 The second display saw the incorporation of Aboriginal culture into the Olympic closing ceremonies, which Olympic organizers described as honouring Canada’s Aboriginal peoples.55 The Indian Days organized by the Kahnawake took place over the same 17 days during which the Olympic Games were held in Montreal, with the goal of obtaining enough money from tourism to fund the construction of a new hospital wing.56 The Kahnawake organizers originally sought to have Indian Days incorporated into the Olympic Arts and Culture Program of the Montreal Olympics, but the request was denied for a variety of reasons: fear of Aboriginal demonstrations; the organizing body for Indian Days was unofficial since it was not commissioned by the Montreal Olympic organizing committee; and the event was seen as too expensive to fund.57 Unable to have their event officially incorporated into Olympic cultural programming, the Kahnawake developed Indian Days independently and sought to attract Olympic visitors to the Montreal Games to the Kahnawake reserve to teach visitors about their lives and culture.58 Though the Kahnawake expected 125,000 visitors, they received far fewer visitors, and commentary on the failure to attract more visitors ranged from the lack of media attention, to the “unfriendly demeanor” of the Kahnawake to non-Aboriginal sight seers.59 Additionally, Kahnawake community members expressed concern during Indian Days that their interactive cultural activities, intended to provide visitors with greater 54 Forsyth, supra note 2 at 71. 55 Ibid. 56 Ibid. at 73. 57 Ibid. at 72. 58 Ibid. at 72-3. 59 Ibid. at 73. 27 understanding of Kahnawake culture, were being ignored in favour of the displays which met with tourists’ pre-conceived notions of Aboriginal culture obtained from movies, television, museums and novels.60 While the Kahnawake Indian Days failed to garner the attention and success that the Kahnawake had hoped, the event was nevertheless organized by the Kahnawake community to properly represent their lives and cultures to Olympic visitors. On the other hand, the incorporation of Aboriginal culture into the closing ceremonies of the Montreal Games fell short of even this mark. Organizers of the 1976 closing ceremonies sought to depict Canada’s multicultural nature, and in furtherance of this effort, chose to incorporate Aboriginal cultural elements.61 The Montreal organizers: “…appropriated a multitude of popular Aboriginal images and arranged them in a vivid and dramatic display, compete with teepees, tom-toms, feathered headdresses, flags and buckskin outfits – all color-coordinated to match the five colors of the Olympic rings. For the final performance, the Aboriginal performers marched in arrowhead formation as the entered and paraded around the track, erected five massive teepees in the centre of the stadium, dispensed feathered headbands and beaded necklaces to the athletes and spectators, danced and played the drums – all to the tune of the La Danse Sauvage.”62 Though this combination of symbolism and imagery associated with Aboriginal cultures can be seen as reinforcing stereotypes of Aboriginal culture, the more troubling aspect of the representation of Aboriginal cultural in the Montreal closing ceremonies was the manner in which Aboriginal peoples were involved in its organization and execution. The display was developed entirely by the Olympic organizers without input or 60 Ibid. 61 Ibid. at 71. 62 Ibid. at 72. 28 representation from Aboriginal peoples.63 Additionally, the performers in the display of Aboriginal culture were only partly made up of Aboriginal peoples.64 Indeed, the actual participants of Aboriginal heritage only made up approximately half of the actual performers, with the remainder comprised of non-Aboriginal peoples painted and dressed to look Aboriginal.65 Closing ceremonies organizers provided the Aboriginal participants with only a single all-night practice for the ceremony, explaining this approach as being required due to funding limitations and the high cost of transporting the Aboriginal participants from their communities outside of Montreal.66 Since the Aboriginal participants would not have sufficient time to train for the show, the “…organizing committee hired a professional Montreal dance troupe to train and practice for the show…non-Aboriginal performers dressed and painted to look like ‘Indians’ led the Aboriginal participants through their own commemoration”67 Janice Forsyth, in her discussion of the Montreal Games, notes that the demeaning nature of this display was not such to prevent the Aboriginal participants from agreeing to perform. Forsyth proposes an explanation for the participation of the Kahnawake: “In the case of the Mohawks of Kahnawake, some residents understood their participation in the Closing Ceremony as part their cultural identities, one that spoke to their involvement as ‘show Indians’ in the entertainment industry. Indeed, the Mohawks of Kahnawake had a long and proud tradition as Aboriginal performers in various Wild West shows, moves, word fairs and exhibitions, and sport tours…The Closing Ceremony thus provided Mohawk participants with a meaningful opportunity to connect with part of their heritage. Some Mohawks viewed the Closing Ceremony as a means to promote and strengthen the presence of an emerging pan-Indian identity in Canada…Thus, 63 Ibid. 64 Ibid. at 71 “…approximately 200 Aboriginal peoples from nine different First Nations participated in the celebration, having consented to share centre stage with approximately 250 non-Aboriginal people dressed and painted to look like Indians.” 65 Ibid. at 72. 66 Ibid. 67 Ibid. 29 Mohawk participation was a symbolic show of a much larger movement of Aboriginal cultural persistence in Canada… Still others saw the Ceremony as a unique diversion from their everyday lives. Here was an opportunity to take part in a massive celebration that would be broadcast worldwide and a rare chance to meet some of the best athletes in the world. So it was, when the Olympic Games came to Montreal, the Mohawks of Kahnawake welcomed the opportunity to participate in the show.”68 Though the Kahnawake may have attempted to utilize the Olympics to better showcase and educate Olympic visitors and the viewing public about their culture, it is evident that the Montreal Games failed to provide meaningful participation to Aboriginal peoples, and indeed some may even describe the closing ceremonies experience was one which was actually damaging.69 As Forsyth suggests, some of the Aboriginal participants may have viewed their participation in the closing ceremonies, or through Indian Days, as helping to advance notions of their culture, albeit within the restrictive boundaries created by the organizers of the Montreal Games. However, it seems readily apparent that the creation of such restrictive boundaries limited the possibility of Aboriginal participation within the Montreal Games as having any substantive, positive potential. Though the experiences of the Montreal Games may simply be dismissed as indicative of their time and place in Canadian history, is notable that they came only 6 years prior to the granting of constitutional protection of Aboriginal rights and treaty rights under Section 35(1), and within a time of great debate surrounding Aboriginal rights and protection. The 1976 Games may seem a distant past, but they nevertheless 68 Ibid. at 72. 69 See Janice Forsyth & Kevin B. Wamsley, “‘Native to native…we’ll recapture our spirits’: The world indigenous nations games and north American indigenous games as cultural resistance” (2006) 23:2 The International Journal of the History of Sport 294 at 303 (describing J Wilton Littlechild’s, the person primarily responsible for the development of the North American Indigenous Games, reaction to seeing the 1976 closing ceremonies: “To Littlechild, the cultural display at 1976 Olympic Games was an affront to Aboriginal peoples everywhere, in that it emphasized their exclusion from positions of social, economic and political power…”). 30 provide a demonstration of the type of Aboriginal participation which has been associated with the Olympics, and importantly a Canadian hosted Olympics. 2.4 Calgary Winter Olympics 1988 While the participation of Aboriginal peoples in the Montreal Olympics can hardly be described as positive, the Calgary Winter Olympics in 1988 offered another opportunity for a Canadian hosted Olympic Games to incorporate Aboriginal participation and culture. Similarly to their Montreal counterparts, the Calgary organizers sought to incorporate Aboriginal culture in the ceremonies of the 1988 Olympics,70 but unlike Montreal, Calgary Olympic organizers also sought to incorporate Aboriginal culture directly into the broader cultural Olympiad and representations of Calgary as a city.71 Aboriginal participation in the Calgary Olympic Games began at a much earlier stage than in Montreal, as Calgary organizers sought to incorporate Aboriginal culture as part of their representations of Calgary in their bid for the 1988 Games. Aboriginal dancers were included in the contingent from Calgary sent to Baden-Baden where the International Olympic Committee was set to determine the city which would secure hosting duties for the 1988 Winter Olympics.72 These Aboriginal performers saw themselves represent the Calgary bid alongside other “archetypal inhabitants of the 70 Steven J. Jackson “The 49th Paradox: The 1998 Calgary Winter Olympic Games and Canadian Identity as Contested Terrain” in M.C. Duncan, G. Chick, G. Edward & A. Aycock eds. Play & Culture Studies, Vol 1. (Greenwich: Ablex Publishing Corporation, 1998) 191 at 202-4. 71 Julia D. Harrison & Bruce Trigger, “The spirit sings and the future of anthropology” (1988) 4:6 Anthropology Today 6 at 6. 72 K.B. Wamsley & Mike Heine, “‘Don’t Mess with the Relay – It’s Bad Medicine’ Aboriginal Culture and the 1988 Winter Olympics” in Robert K. Barney et al. eds., Olympic Perspectives: Third International Symposium for Olympic Research (London ON: University of Western Ontario, 1996) 173-178 at 173. 31 west…” the Mounties and the cowboy.73 Following the success of Calgary’s bid, the organizing committee sought to incorporate greater expressions of Aboriginal culture within the Calgary Olympics. Aboriginal involvement in the Calgary opening and closing ceremonies included the incorporation of participants from a number of First Nation and Aboriginal communities around the Calgary area. However, rather than the highly choreographed approach in Montreal, and utilization of non-Aboriginal performers in place of Aboriginal participants, the Calgary opening ceremonies simply included Aboriginal participants in traditional dress “opening” the 1988 Games by entering the opening ceremony venue.74 Additionally, the opening ceremonies also incorporated Aboriginal language into the singing of the Canadian National anthem, by recruiting Daniel Tlen, a Yukon Aboriginal to sign part of the anthem in Shoshonee.75 Notably, the Calgary Stampede Board, perhaps playing to the stereotypical versions of western heritage which Calgary used to represent itself, suggested that an Indian attack and wagon-burning should be incorporated into the opening ceremonies.76 This suggestion was generally met with criticism, and (thankfully) was not followed for the actual opening ceremonies.77 This incorporation of Aboriginal culture into the Olympics’ biggest ceremonies was undoubtedly an improvement on the Montreal Games; however, the opening ceremonies were not the most significant, nor controversial, attempt at incorporating Aboriginal culture into the 1988 Games. Julia D. Harrison, the Curator of the Ethnology Department of the Glenbow Museum in Calgary described the exhibition The Spirit 73 Ibid. 74 Jackson, supra note 70 at 203-4. 75 Ibid. 76 Wamsley & Heine, supra note 72 at 173. 77 Ibid. 32 Sings: Artistic Traditions of Canada’s First Peoples as “…designed as an important vehicle to educate the Canadian people about the native heritage of their country and to bring the wealth of Canadian native materials held in foreign museums to light.”78 Initial work on the exhibition began in 1983, but funding was provided by Shell Oil Canada Limited, a corporation active in the development of Alberta’s oil sands, far north of Calgary. As a result, in 1986 The Sprit Sings became a flashpoint of controversy for the Calgary Olympics and Aboriginal peoples.79 The Lubicon Cree had advanced a claim of Aboriginal title to an area of northern Alberta, and unlike most of the other Aboriginal groups in Alberta, was not a party to any treaty, and therefore was without the settlement rights and reserve land provided under these agreements.80 The Lubicon Cree had begun calling for a boycott of the Olympics as early as 1986, to combat the refusal of the federal government to negotiate a treaty with the Lubicon, and to attract attention to the destructive effect which development of the oil sands was having on the Lubicon’s largely traditional hunting and substance economy.81 Shell Oil was one of the corporations pursuing oil production in close proximity to Lubicon communities, and the Lubicon protest strategy for the 1988 Games was to specifically target the events and elements of the Olympics sponsored by oil companies.82 The Spirit Sings was targeted by an international campaign organized by the Lubicon to encourage museums around the world not to transfer any artifacts to the exhibition.83 The Lubicon received support from a number of European entities such as 78 Harrison & Trigger, supra note 71 at 6. 79 Wamsley & Heine, supra note 72 at 174. 80 Ibid. 81 Ibid. 82 Ibid. 83 Ibid. 33 the European parliament,84 while the Glenbow Museum sought the aid of diplomats in a number of countries, and initiated their own letter writing campaign, to combat the Lubicon boycott.85 According to Harrison, the Glenbow Museum sought to include Aboriginal individuals and organizations in a Liaison Committee to help guide the development of The Spirit Sings exhibition, and the Lubicon did not respond to their invention to participate.86 The Native Liaison Committee drew its membership from some local bands, larger Aboriginal organizations, and government departments that had an Aboriginal component to their objectives and efforts.87 The Committee suggested that the Glenbow Museum seek to meet directly with local bands, but an inability to “find mutually agreeable meeting times” rendered such attempts unsuccessful.88 However, Glenbow representatives were able to meet directly with the Lubicon which, according to Harrison, revealed that the Lubicon had “no objection to the content of the exhibition but only to its sponsorship and association with the Calgary Olympics.”89 The controversy surrounding The Spirit Sings escalated as the Lubicon sought to garner further public support for its boycott by encouraging Aboriginal communities and organizations across Canada to protest the torch relay.90 This call for support was answered by a number of Aboriginal organizations. The Assembly of First Nations, the World Congress of Indigenous People, the National Congress of American Indians, the Indian Association of Alberta and other Aboriginal organizations endorsed the boycott, 84 Harrison & Trigger, supra note 71 at 7. 85 Wamsley & Heine, supra note 72 at 174. 86 Harrison & Trigger, supra note 71 at 6. 87 Ibid. at 6-7. 88 Ibid. at 7. 89 Ibid. at 7. 90 Wamsley & Heine, supra note 72 at 175. 34 and the relay was indeed protested in several Canadian cities, including in Kahnawake Quebec. However, not all Aboriginal groups were swayed by the Lubicon protests, most notably, many of the Treaty 7 bands in Alberta who continued to seek opportunities for and involvement with the Calgary Olympics.91 The continued support for the Olympics provided by these Treaty 7 bands was due largely to the creation of a Native Participation Program by the Calgary Organizing Committee, which was developed while the Lubicon protest gathered momentum.92 The Native Participation Program “provided funding for, among other events, a Native trade show, a Native youth conference and pow wow competitions.”93 The efforts of the Calgary Organizing Committee were viewed as a direct response to the negative publicity being generated by the Lubicon, and that without the Lubicon protest, no such participation program would have been developed.94 The Aboriginal groups participating under the program described the program as positive, providing “‘…a forum for our people on an international stage.’”95, while the Lubicon described the Native Participation Program as the government “‘throwing some money around to try and buy native support’”.96 Despite the boycott of the Lubicon, The Spirit Sings was ultimately a significant success, with the exhibition attracting its largest crowd (127,000),97 and most significant Aboriginal representation amongst its visitors than any previous Glenbow exhibition. Clearly, Aboriginal participation in the Calgary 1988 Olympics was of a very diverse nature. Some Aboriginal groups saw the Olympics as a forum which would 91 Ibid. 92 Ibid. 93 Ibid. 94 Ibid. 95 Ibid. at 175 quoting Sykes Powderface, the Native liaison coordinator hired by the Treaty 7 bands to manage funds provided by the Calgary Organizers. 96 Ibid. at 175 quoting Calgary Herald, Apr. 15 1987. 97 Ibid at 175. 35 provide greater exposure for positive representations of native cultural and traditions while the Lubicon and others took advantage of the international exposure sparked by the Olympics to draw attention to broader issues facing their communities. Yet even with regard to the direct participation of Aboriginal peoples in the Olympics, either through the Native Participation Program events, the Glenbow Museum’s exhibition, or the opening ceremonies, there was concern that the participation was merely to placate and undermine protesters and critics. Central to this criticism is the issue, as articulated by Wamsley and Heine that the forms of Aboriginal involvement in the Calgary Games were “delineated…as often as not, by the organizers rather than by Native people themselves.”98 While the Calgary organizers did not “delineate” Aboriginal participation in the restrictive, and negative, manner as the Montreal organizers had, it was nevertheless clear that the form of Aboriginal participation within the Olympic Games was set by the organizers. By curtailing Aboriginal input into the manner in which their participation was to occur, and developing programs later in the organizational process, the Calgary Games efforts at Aboriginal involvement had the appearance of placating Aboriginal dissent rather than achieving meaningful involvement. While it seems apparent that Aboriginal participation in the Calgary Games was far more positive than in Montreal, a similar issue is raised, namely, that Aboriginal peoples were still unable to more directly influence the manner in which they could participate in the Olympic Games. Only minor attempts at developing a higher level of consultative or advisory role for Aboriginal peoples was made, and as Bruce Trigger notes in his response to Julia Harrison’s assessment of the Glenbow’s attempts to meet with local Aboriginal leaders, “…clearly, 98 Ibid at 173. 36 more is involved than finding mutually agreeable meeting times.”99 The Calgary Games may have marked a vast improvement in incorporating Aboriginal participation when compared to Montreal. However, the Calgary Games’ efforts were still plagued with contentious issues; most significantly, the structure of Aboriginal participation was still manufactured through organizing committee determinations rather than through collaboration with Aboriginal peoples. Even the protests of the Lubicon were unable to produce the desired outcome since they remain without a treaty or land recognition from the Province of Alberta or the Government of Canada. 2.5 The Olympic Movement’s Agenda 21 for Sustainable Sport The Calgary Games were not unique Olympics in terms of protests, and indeed it was not long before another Winter Olympics was subject to similar demonstrations, albeit on a much different subject. The Albertville Games of 1992 saw the development of Olympic venues in a fashion which caused significant environmental concerns,100 and the resulting outcry garnered significant public attention with regards to the impact that Olympic hosting may have on a city or region’s environment.101 These protests firmly placed the environment within the purview of Olympic host cities, and by contrast, the Sydney bid in 1993 included a strict set of environmental guidelines,102 and the Lillehammer Winter Olympics in 1994 saw their organizing committee join with environmental non-governmental organizations to develop alternative venue plans and 99 Harrison & Trigger, supra note 71 at 10. 100 Jean-Loup Chappelet, “Olympic Environmental Concerns as a Legacy of the Winter Games” (2008) 25:14 The International Journal of the History of Sport 1884 at 1891-2. 101 Ibid. 102 Ibid. at 1892-3. 37 considerations to address any environmental issues.103 The efforts of Lillehammer and Sydney pushed the environment even further to the fore of the Olympic Agenda, and in 1994 the International Olympic Committee adopted the environment as the third pillar of Olympism,104 and in 1995 the creation of the Sport and Environment Commission to oversee the inclusion of the environmental pillar in the Olympic movement.105 Subsequently, the Commission hosted World Conferences on Sport and the Environment, Lausanne in 1995, Kuwait in 1997, and Rio de Janeiro in 1999 where the Sport and Environment Commission adopted Agenda 21.106 The International Olympic Committee’s Agenda 21 was inspired by Agenda 21 of the United Nations Conference on Environment and Development in Rio de Janeiro in 1992, and although the rise of environmentalism spurred its creation, the environment is not its only subject. Rather, Agenda 21 addresses three broad subjects: strengthening socio-economic conditions, conservation and management of resources for sustainable development, and strengthening the role of major groups.107 Within the latter subject, Agenda 21 specifically highlights indigenous populations as being one of the major groups whose participation within the Olympic movement should be strengthened.108 More specifically, Agenda 21 states: “Indigenous populations have strong historical ties to their environment and have played an important part in its preservation. The Olympic Movement endorses the UNCED [United Nations Conference on Environment and Development] action in favour of their recognition and the strengthening of their role.”109 103 Ibid. 104 Ibid. 105 Ibid. 106 Ibid. 107 Agenda 21, supra note 53 at 2-3. 108 Ibid. 109 Ibid at 45. 38 In pursuit of an enhanced role for indigenous peoples within the Olympic movement, Agenda 21 prescribes more specifically that indigenous sporting traditions and indigenous access to sports participation be encouraged, both of which are logical inclusions for an Olympic document.110 More notably, Agenda 21 also calls for the Olympic movement to “contribute to the use of [indigenous] traditional knowledge and know-how in matters of environmental management in order to take appropriate action, notably in the regions where these populations originate.”111 The specific highlighting of indigenous peoples as requiring further support for their inclusion within the Olympic movement is indeed notable, yet the full meaning of Agenda 21 has yet to be fully determined. The Sydney Games, as will be discussed below, were scheduled to occur only one year following the adoption of Agenda 21, while the Salt Lake City Games were only three years away, and neither city had developed their bid or organized their Games with the benefit of Agenda 21. However, Agenda 21 was developed right in the midst of the formulation of Vancouver/Whistler’s Olympic aspirations, and as will be seen, undoubtedly played a role in the development of Aboriginal participation in the 2010 Games. Thought Agenda 21’s tenants are not overly prescriptive with regards to the manner in which indigenous participation should be incorporated into the Olympic movement, it seems evident that their inclusion in this guiding document is sure to influence the manner in which cities bid for Olympic hosting duties, and the emphasis they place on the inclusion of indigenous participation in their hosting agenda. 110 Ibid. 111 Ibid. 39 At this juncture it may be worthwhile to briefly consider Agenda 21 from a non- Olympic context. Its implications outside the Olympic forum may be more challenging to conceptualize; however, it may be possible to consider its tenants as akin to the corporate social responsibility initiatives which are increasingly becoming part of the corporate landscape, particularly in the sectors participating in resource development.112 What is notable, in this regard, is that the adoption of Agenda 21 creates a specific framework within which “sustainable” Olympic hosting should be planned and pursued. This framework is premised in United Nations developed policies, rather than a specific state’s laws or rules regarding Aboriginal or indigenous participation and consultation in development. These internationally accepted guidelines altered the manner in which the International Olympic Committee’s host cities pursued their hosting responsibilities, shaping their approach to Aboriginal participation in a manner which domestic rules and regulations do not. However, the role of Agenda 21 with regards to indigenous participation is still in its infancy within the Olympic movement, and its impact on host cities, regions or countries has yet to be seen. What is evident is that Agenda 21 marks an important moment for the Olympic movement, and the role of sustainability and indigenous people within this movement. Agenda 21 is certainly a far cry from the Anthropology Days of the St. Louis Games, and appears to signify the increasingly prevalence of sustainability within Olympic hosting duties. 112 See e.g. David Vogel, The Market for Virtue: The Potential and Limits of Corporate Social Responsibility (Washington D.C.: Brookings Institution Press, 2005) (Chapter 1 where Vogel discusses the revival of corporate social responsibility). 40 2.6 Sydney Summer Olympics 2000 The Sydney Summer Olympics in 2000 were the first to be held following the adoption of Agenda 21; however, as noted above, the organization of the Sydney Games were well under way by the time Agenda 21 was adopted by the Sport and Environment Commission. Yet Sydney, much like Calgary, had sought to incorporate Aboriginal participation within its bid process, similarly using Aboriginal dancers within its bid presentations,113 but also taking more direct steps to include prominent Aboriginal athletes within the bid,114 and incorporate more direct statements and promises of Aboriginal cultural inclusion within the Sydney cultural Olympiad.115 Indeed, Sydney’s Olympic bid emphasized that Aboriginal communities fully supported the bid.116 In total, Sydney’s efforts served to “…aligning the nation ideologically, socially and politically with [the] philosophy of the Olympic movement.”117 Following the success of the Sydney bid for the 2000 Games, the Sydney Organizing Committee was then charged with attempting to deliver on the promises of Aboriginal inclusion, and indeed the Sydney organizers incorporated far more significant Aboriginal participation than had been previously seen in Montreal or Calgary. As with its previous Canadian Olympic counterparts, the Sydney Games sought to include Aboriginal cultural within its broader cultural festival and ceremonies, but in the case of Sydney, the issue of Aboriginal guidance and control over cultural representations was 113 John Nauright, “Global games: culture, political economy and sport in the globalised world of the 21st century” (2006) 25:7 Third World Quarterly 1325 at 1328. 114 Ibid. at 1329 “…Aboriginal tennis great Evonne Goolagong Cawley [was] used in Sydney’s formal presentation to the International Olympic Committee in 1993.” 115 Ibid at 1329. 116 Ibid. 117 Michelle Hanna, “Reconciliation and Olympism: The Sydney 2000 Olympic Games and Australia’s Indigenous People” 148 in Tracy Taylor ed, Papers from The First International Conference on Sports and Human Rights, (Sydney: University of Technology, 1999) 148. 41 more directly addressed. The most significant inclusion of Aboriginal culture in the Sydney Olympics took place in The Festival of Dreaming which was staged in Sydney prior to the Olympic Games.118 The Festival of Dreaming included a number of exhibitions, dance and theatre productions, films, and literary presentations, with the intention of presenting “…contemporary Indigenous culture with respect to ancient traditions” which was viewed as “…a significant break from colonial representations of an ancient static Indigenous culture.”119 This cultural representation stands in stark contrast to The Spirit Sings exhibition in Calgary, which specifically emphasized the long history of Canada’s Aboriginal peoples, but more importantly, the planning of The Festival sought to extend greater control to the Aboriginal artists participating in the program. The Sydney Organizing Committee adopted a policy of “Authorship and Control” which stated that “‘Authorship of the product, activity or event, and the control of its development and presentation, where possible and relevant, should be in indigenous hands’”120 A similar approach to the presentation of Aboriginal culture in the opening and closing ceremonies was taken by the Sydney organizers. Aboriginal participation was included in the development of the Aboriginal cultural representations in the ceremonies, and a “cultural custodian deed” was negotiated with the International Olympic Committee, under which, the cultural contributions of Aboriginal peoples in the Sydney Games could not be used for advertising or commercial purposes without the approval of the Aboriginal communities 118 Ibid. at 149. 119 Ibid. at 150. 120 Ibid. at 150 quoting the Sydney Organizing Committee’s Policy of Authorship and Control. 42 involved.121 In addition to the increased sensitivity and understanding displayed with regards to the incorporation of Aboriginal culture within Sydney’s cultural Olympiad, was the linkage of the torch relay to significant Aboriginal cultural sites and athletes.122 These approaches to the planning of indigenous cultural representations within the broader cultural programming of the Sydney Olympics illustrated a significant advance from the Montreal and Calgary Games. The consultative model for Aboriginal participation and involvement in the Sydney Games addressed a significant shortcoming in Calgary’s Aboriginal participation efforts, and obviously far surpassed the attempts of Montreal. However, the Sydney Organizing Committee also developed a more direct approach to incorporating Aboriginal participation within the larger development of the Sydney Games. The Sydney Organizing Committee developed an Aboriginal and Torres Strait Islander Relations Unit to deal with Aboriginal communities, and recruited Garry Ella, a former prominent Aboriginal rugby player to act as its program manager.123 In addition, a National Indigenous Advisory Committee was created in 1998 in which a group of prominent Aboriginal Australians were asked to advise the Sydney organizers on matters impacting Aboriginal Australians.124 Outside of the Sydney Olympic organizers, four Aboriginal Land Councils of Sydney used the Olympic Games to spur the negotiation of a treaty amongst the land councils to develop a more collaborative and cooperative approach to their general endeavors, but also to coordinate their efforts with 121 Tony Webb, The Collaborative Games: The story behind the spectacle (Melbourne: Pluto Press, 2001) at 195. 122 Ibid. 123 Richard Cashman, The Bitter-Sweet Awakening: The Legacy of the Sydney 2000 Olympic Games (Sydney: Walla Walla Press 2000) at 223. 124 Nauright, supra note 113. 43 regards to the Sydney Olympics.125 Indeed the land councils were ultimately provided a right to erect a pavilion during the Sydney Games in which details of Australia’s colonial treatment of Aboriginal peoples were narrated.126 Though each of these pursuits served to indicate the improved role of Aboriginal peoples in the participation of the Sydney Olympics, the efforts were described by some as failing to accomplish any substantive incorporation of Aboriginal perspectives or peoples in the broader organization of the Games.127 While such approaches to improving the incorporation of Aboriginal participation into the organization of the Games marked a substantive improvement on those made in Montreal and Calgary, the focus of the public and media surrounding Aboriginal participation in the 2000 Games centered largely upon two distinct topics. The first was Cathy Freeman, an Australian Aboriginal athlete, one of Australia’s best medal hopes in track and field, and the focal point of discussions surrounding the Sydney Games as a symbol of reconciliation in Australia. The second subject was the fear of Aboriginal peoples using the Sydney Games as a forum for protest. As the 2000 Olympics approached, Cathy Freeman, the gold medal favourite in the 400m event, quickly became the focus of the Australian and global media as the “poster-child” for the Sydney Games.128 Cathy Freeman was an athlete whose identity had been previously associated with political contention surrounding the plight of Aboriginal peoples in Australia when she made a victory lap in the Commonwealth 125 Genevieve Cashman & Richard Cashman eds. Red, Black and Gold: Sydney Aboriginal People and the Olympics (Sydney: Centre for Olympic Studies University of New South Wales, 2000) at 9-10. 126 George Morgan, “Aboriginal Protest and the Sydney Olympic Games” (2003) 12 Olympika: The International Journal of Olympic Studies 23 at 28. 127 Nauright, supra note 113 at 1329. 128 Graham Knight et al., “The Weight of Expectation: Cathy Freeman, Legacy, Reconciliation and the Sydney Olympics – A Canadian Perspective” (2007) 24:10 The International Journal of the History of Sport 1243 at 1244. 44 Games held in Victoria, Canada initially carrying only an Aboriginal flag.129 This demonstration caused a stir in Australia and “…cemented Freeman’s identification with the Aboriginal cause in political as well as cultural terms.”130 It was in this context that Freeman became the focus of the public and media, and her participation in the Sydney Olympics became intrinsically lined with the broader process of reconciliation in Australia.131 Freeman’s place as a symbol of reconciliation during the Sydney Games was perhaps cemented when she was chosen to light the cauldron during Sydney’s opening ceremonies; Freeman became the centre of the opening ceremonies which was “…filled with the imagery of reconciliation.”132 If Freeman’s iconic lighting of the Sydney cauldron was insufficient to entrench her within the Australian and global conscience as a symbol of recognition, her gold medal winning run in the 400m run certainly did. Immediately following her victory Freeman’s sponsor Nike installed advertisements throughout Sydney bearing the slogan ‘Change the world 400 meters at a time’133 while her performance was dubbed ‘400 m of national reconciliation’ by the leader of the Federal opposition party.134 Such interpretations of the broader meanings of Freeman’s participation in the Olympic Games seem remarkably similar to those that were attached to Jim Thorpe some eighty years earlier, and indeed many commentators viewed the linkage of reconciliation to the Sydney Games to be as equally problematic as 129 Ibid. 130 Ibid. 131 Catriona Elder, Angela Pratt & Cathy Ellis, “Running Race: Reconciliation, Nationalism and the Sydney 2000 Olympic Games” (2006) 41:2 International Review For the Sociology of Sport 181 at 182. 132 Morgan, supra note 126 at 28. Morgan describes other reconciliation images as including Aboriginal man in traditional Aboriginal dress and body paint walking hand in hand with a “curly haired, freckled faced, all-Australian girl”, the incorporation of Aboriginal creation scenes, and display of Aboriginal flag and symbols. 133 Elder et al., supra note 131 at 181 134 Ibid. at 182. 45 the American Press’ interpretation of Thorpe’s Stockholm Games participation as a signal of the United States colour blindness in the field of sport.135 A second subject which garnered much public and media attention leading up to the Sydney Games was the concern that Aboriginal peoples would utilize the Sydney Olympics as an opportunity to protest and highlight their concerns and issues on a global stage. Concern regarding protest and the concept of the Sydney Games as a force of reconciliation were inextricably tied in the commentary on the Games. A central argument amongst commentators examining Aboriginal participation in the Sydney Games centered upon whether this participation actually constituted reconciliation, or merely a well crafted effort to subvert and silence Aboriginal protest. Concern surrounding Aboriginal protests and the Sydney Games had sprung to the fore of media and public discussions even before the success of the Sydney bid.136 Following Sydney’s success at the bid stage, several Aboriginal activists expressed their plans to stage protests during the Olympics to highlight the discrimination and social problems suffered by Australia’s Aboriginal peoples.137 Numerous commentators commented on the potential of Aboriginal protests to feature prominently in Sydney, with well know Aboriginal leader Charles Perkins stating “‘We are telling all the British people, please, don’t come over. If you want to see burning cars and burning buildings, then come over. 135 See e.g. Morgan, supra note 126 at 33-35 where he discusses the depiction of Cathy Freeman as a symbol of reconciliation and comments “By deploying the repertoire of symbolic Reconciliation, as expressed through the pageantry and symbolism of the Sydney Olympics, the state seeks to evade the responsibility to address the deeper questions of colonial power.” 136 Ibid. at 25 “Even before the bid to stage the Games in Sydney was successful, Aboriginal leaders were declaring their intention to use the event to raise international awareness of the plight of indigenous peoples. In October 1991 the NSW Aboriginal Legal Service called on the IOC to reject the Sydney bid for the Olympics on the grounds of Australia’s appalling treatment of its Aboriginal citizens.” 137 Ibid. at 26. 46 Enjoy yourself’”138 and other commentators predicting similarly violent clashes between Aboriginal protesters and the police.139 Indeed, a circle of Nyungah elders called on athletes, and in particular Cathy Freeman, to boycott the Sydney Games altogether, to protest the Australian government’s stance on Native Title.140 Yet the predications of substantive Aboriginal protests marked by chaos and violence never materialized. Some small protests occurred just prior to and during the Sydney Olympics, but were “uneventful and attracted no media interest.”141 Indeed, the most prominent feature of Aboriginal protest was carried out by the band Midnight Oil who wore shirts emblazoned with the word “Sorry”, in reference to Prime Minister Howard’s refusal to apologize to the Aboriginal stolen generation,142 during their performance during the Sydney Games closing ceremonies.143 This lack of Aboriginal protest has ultimately become more controversial than any of the prospective protests predicated by commentators and called for by some Aboriginal peoples and activists. Opinions as to the reasons behind the lack of Aboriginal protest are varied, from those who cite the inclusive nature of the Sydney organizing committee and efforts to incorporate Aboriginal participation as giving Aboriginal peoples reason to support the Games,144 to those who viewed the iconic participation of Cathy Freeman as providing a reason for Aboriginal support,145 and alternatively, that the efforts of the Sydney organizing committee had simply provided 138 Ibid. 139 Ibid. at 27. 140 Ibid. 141 Cashman, supra note 123 at 221. 142 Elder et al., supra note 131 at 189-90, Elder et al. provide an overview of the Aboriginal stolen generation and controversy. 143 Morgan, supra note 126 at 28. 144 Cashman, supra note 123 at 222. 145 Ibid. 47 marginal participation and leveraged nationalist sentiment grounded in a love of sport to silence any Aboriginal dissent or protest.146 Indeed a number of authors have accepted the latter view that Aboriginal dissent in relation to the Sydney Games was effectively silenced through the skillful efforts of Olympic organizers. As Morgan elaborates: “The Olympic organizing bodies skillfully defused indigenous resistance by paying homage to the original owners in the major ceremonies, negotiating the involvement of some prominent Aboriginal people, and incorporating the imagery of reconciliation in the rituals of the Games.”147 Such divergent views of the reasons underlying the relatively benign Aboriginal protests at the Sydney Games are indeed interesting, and reflect different perspectives on the efforts of the Sydney organizers in pursuing greater Aboriginal participation, and the meaningfulness of their accomplishments. Yet even those with more positive views of Aboriginal participation seemed to accept the notion that the Aboriginal participation was not truly capable of achieving the reconciliation described by the press and media. Cashman comments on the Olympics as a catalyst for social change: “It is extravagant to believe that an international sporting event could act as a change agent in any substantial way for such entrenched problems. It is naïve to expect that the cultural presentation in the opening ceremony, which had to be spectacular, entertaining and accessible to a diverse global audience, could also convey social and political messages which changed the way that people think.”148 Indeed, it would appear that the Sydney organizers encountered an issue which was also faced in Calgary, that the motivations behind their efforts were questioned because of the suspicion that they were merely attempting to placate Aboriginal protestors. Such suspicion and criticism may be well founded. A review of Sydney’s efforts reveals a 146 See Morgan, supra note 126 and Helen Lenskyj, The Best Olympics Ever? Social Impacts of Sydney 2000, (2002: University of New York Press, Albany) at 67-107. 147 Morgan, ibid. 148 Cashman, supra note 123 at 225. 48 much greater effort at incorporating Aboriginal culture in a more relevant and culturally sensitive manner, and that Aboriginal perspectives were incorporated into such cultural representations in a manner which was not even sought after in Montreal or Calgary. However, the incorporation of Aboriginal peoples largely emphasized the cultural, without much broader emphasis of inclusion. The development of advisory bodies was undoubtedly helpful, but their involvement was not designed to substantively engage in the larger organization of the Sydney Games. Indeed, even those Aboriginal representatives who were incorporated were largely prominent Aboriginal athletes, and though this does not impugn their ability or efforts in relation to the Games, this does not seem as significant as the inclusion of leaders from Aboriginal communities, chosen by those Aboriginal communities. Therefore, while the Aboriginal participation in the Sydney Games may be seen as having greatly advanced from the efforts made in Montreal and Calgary, there remained similar difficulties and concerns that had appeared in previous Games. Indeed the elements of reconciliation much lauded by the media in relation to the Sydney Games fell short of creating any lasting effect. Cashman noted that following the Sydney Games there was a legacy of increased consumption of Aboriginal ideas and art, but there was no evidence of any advance in the reconciliation process, or fuller engagement with true Aboriginal life.149 There was even evidence of a backlash against Midnight Oil for their t-shirt protest calling for a national apology to Australia’s Aboriginal peoples.150 Indeed, 149 Cashman, supra note 123 at 73. 150 Ibid. at 225. 49 this apology would not come until 2008, under a new Prime Minister and government.151 Though the inability to achieve national reconciliation does not render the Aboriginal participation in relation to the Sydney Games a failure, it does perhaps highlight the limitations of an Olympics, and most certainly, the ability of cultural inclusion and prominent Aboriginal athletes to effect such sweeping change. 2.7 Salt Lake City Winter Olympics 2002 While the Sydney Games of 2000 marked a substantive improvement (although still contentious) at incorporating Aboriginal participation within the Olympic Games, the Salt Lake City Winter Olympics in 2002 marked a regression. Salt Lake City is situated in close proximity to five Native American groups, the Goshutes, Utes, Navajo, Shoshoni and Pauite,152 and much like the Calgary and Sydney bids which came before, these Aboriginal groups formed part of Salt Lake City’s bid to the International Olympic Committee, through the performance of traditional songs, dance and providing gifts of beadwork to IOC delegates.153 However, the Salt Lake City bid did not emphasize the participation of Native American people in the same manner that Sydney had, and indeed, there was little evidence of any more substantive discussion during the organization of the Salt Lake City bid. Following the success of the Salt Lake City bid, the Director of the Utah Division of Indian Affairs, himself a member of the Ute tribe, was included in the Salt Lake City 151 Rudd, K., Prime Minister of Australia, (13 February 2008) “Apology to Australia’s Indigenous Peoples” Speech presented at Australian House of Representatives, online: Prime Minister’s Office <http://www.pm.gov.au/node/5952>. 152 Dyerson, supra note 46 at 33. 153 Ibid. 50 Organizing Committee.154 An independent organization titled the Native American 2002 Foundation was developed to help ensure Native Americans were appropriately represented during the Games, with the goal of obtaining the support of Native American groups across the United States.155 While four of Salt Lake City’s Native American groups pursued their participation through this Foundation, the Navajo Nation opted to engage with the Salt Lake City organizers on their own behalf,156 leaving an obvious gap in the Foundation’s efforts to act as an appropriate representative of Native American interests. This issue seemed to be borne out when the Native American 2002 Foundation efforts at inclusion in the Salt Lake City’s planning processes were ultimately rebuffed by “…Utah’s governor, Salt Lake’s mayor and the SLOC [Salt Lake City Olympic Organizing Committee]..”157 This fractured approach to engaging the Salt Lake City organizers ultimately frustrated efforts at incorporating greater Aboriginal participation in the Salt Lake City Games. The five Native American groups incorporated into the opening ceremonies of the Salt Lake City Games, were members of the five tribes and they “…danced into the stadium in traditional regalia followed by drummers who were positioned on plants…at the end of their performance, tribal representatives from the five Nations welcomed Olympians.”158 The Navajo were able to secure the right to develop a pavilion sanctioned by the Salt Lake City organizers entitled “Discover Navajo”, while the other 154 Utah Division of Indian Affairs, “Forest S. Cuch Biography” online: Utah Division of Indian Affairs <http://indian.utah.gov/about_us/executivedirector.html>. 155 Lori Buttars, “Tribes Encountering Snags in Planning Olympics Role” Salt Lake Tribune (19 November, 2000) online: Salt Lake Tribune <http://www.sltrib.com/>. 156 Ibid. 157 Dyerson, supra note 46 at 33. 158 Christine M. O’Bonsawin “‘No Olympics on stolen native land’: contesting Olympic narratives and asserting indigenous rights within the discourse of the 2010 Vancouver Games” (2010) 13:1 Sport in Society 143 at 146. 51 four Native American groups were unable to secure similar opportunities.159 One of the more prominent examples of Aboriginal participation in Salt Lake City was the marketing of “traditional Indian crafts” in the Salt Lake City Olympic superstore.160 From this account, the Salt Lake City games can undoubtedly be viewed as a regression from the level of Aboriginal participation achieved at the Sydney Games, and indeed, might even be viewed as falling short of the efforts put forth in Calgary fourteen years prior. Notably, there seemed to be little risk of Aboriginal protest in relation to the Salt Lake City Olympics, perhaps due in part to its close proximity to the events of September 11th, and the resulting outpouring of American nationalism which became fixated upon the Salt Lake City Games as a symbol of American resilience.161 It is arguable that without such a threat, the organizers of the Salt Lake City Olympics were not faced with any significant incentive to incorporate greater Aboriginal participation. Additionally, the fractured approach to engaging with the Salt Lake organizers appeared to heavily colour Aboriginal inclusion, with the more influential Navajo (as the largest and wealthiest of the Salt Lake City Native American groups) being the only entity which succeeded at participating substantively beyond the opening ceremonies. Though these difficulties may have been compounded by organizers who were simply disinterested in pursuing more Aboriginal participation (which is also problematic), it is clearly evident that the Native American groups were unable to effectively negotiate and overcome the disinterest to secure greater participation. Though the Aboriginal participation achieved 159 Frances Bula, “First Nations planning large presence at 2010 Games” The Vancouver Sun (23 May 2007) online: Canada.com <http://www.canada.com/vancouversun/news/story.html?id=121a41c5-cc83- 4cfb-9912-6a9c0c16e0ad> “The Navajo Nation had a Discover Navajo Pavilion, the only official sanctioned American Indian event during the Games, two blocks from the Olympic Medals Plaza.” 160 Dyerson, supra note 46 161 Jackie Hogan, “Staging The Nation: Gendered and Ethnicized Discourses of National Identity in Olympic Opening Ceremonies” (2003) 27:2 Journal of Sport and Social Issues 100 at 117 52 in the Salt Lake City Games may not have been as troublesome as that in Montreal, it was hardly significant or substantial, and certainly a marked step backward from the achievements in Sydney. 2.8 Discussion The above review indicates that the Olympics have a long association with Aboriginal peoples, and also, that this history is rife with highs, lows and a variety of opinions on the meaning of the Aboriginal participation which has taken place. While the content of Aboriginal participation has changed significantly from the St. Louis Olympics of 1904 to the Sydney Games of 2000, there remain some striking commonalities in the Aboriginal participation among the various Olympic Games. First, it is readily apparent that Aboriginal athletes often garner unique public attention, and are often seen as symbols of reconciliation and the possibility that racial barriers are being dismantled. Indeed such imaging of Aboriginal athletes appears to be as true at the start of the 21st century, as it was in the 20th. Second, the participation Aboriginal peoples have achieved outside of the Olympic events has been almost exclusively targeted at cultural representations of Aboriginal peoples, either in ceremonies, or inclusion in broader cultural festivals. Though such cultural inclusion is not negative, except perhaps in the case of Montreal, it is relevant to the most prevalent criticism of Aboriginal participation in the Olympics, which is that such participation is merely meted out as a way to subvert and silence Aboriginal dissent. It would seem that such perspectives of Aboriginal participation in relation to the Olympics largely stems, at least in part, from the exclusion of Aboriginal participation in the more substantive aspects of organizing and hosting an Olympic Games. As Cashman 53 noted in his discussion of Aboriginal peoples in Australia, it is widely recognized that “…Aborigines were worse of materially, educationally and health-wise than the rest of the community”162 and indeed the protests voiced in Calgary and Sydney were largely in relation to these impacts felt by Aboriginal communities through their marginalization by wider society. In this context, inclusion within the cultural components of the Olympics may be seen as not being particularly associated with the issues which impact Aboriginal peoples most prominently. Certainly the incorporation of Aboriginal culture into the Olympics, and doing so in a respectful manner under the guidance of Aboriginal peoples, marks an important recognition and expression of Aboriginal culture within broader society. However, it is understandable that some would view such cultural recognition as hollow given the true state of Aboriginal affairs in most countries, and as a distraction from the recognition of this reality. Cashman’s statement that it would be “extravagant” to expect an Olympic Games to solve such problems is an insightful articulation of the practical limits of any single project; yet, it is also possible to suggest that the reason Aboriginal participation in these past Olympics fell short, and the reason they are most open to criticism, was that they did not take any steps towards substantive Aboriginal inclusion which would have at least addressed the typical Aboriginal marginalization from such projects. More substantive Aboriginal participation from the outset in the various Olympic bids, and inclusion beyond the cultural realm, would almost certainly have indicated that the inclusion of Aboriginal peoples was not merely an afterthought or a means to placate radical elements within the Aboriginal community. Whether such participation was feasible or would have resulted in different outcomes is unclear. However, it is apparent 162 Cashman, supra note 123 at 223. 54 from the above review, that the Olympics do indeed have unique qualities which attract greater scrutiny of efforts at incorporating Aboriginal participation within Olympic efforts, and imports greater meaning to the success and failures of those same efforts. The above review of previous involvement of Aboriginal peoples in the Olympic Games provides both a context and a comparison to the manner in which Aboriginal participation occurred in relation to the 2010 Games. These past Games may serve as markers to determine whether the Vancouver 2010 efforts have improved on the past, or suffered similar difficulties and issues that have previously occurred. Clearly the context surrounding each of the above Olympics is substantially different from any other Olympics, and the influences and impacts on Aboriginal participation for each of these Games are more complex than can be articulated in this relatively short historical overview. However, while the past efforts may not be understood in their entirety, it is nevertheless helpful to consider these past efforts to help anchor our examination of Vancouver 2010. The following chapter is intended to provide further context and more substantive means from which to assess the Aboriginal participation in the 2010 Games. The chapter will examine some of the major jurisprudence which sets out the legal rules surrounding the inclusion of Aboriginal participation within projects or undertakings which impact Aboriginal peoples. Consideration of this jurisprudence will accomplish two objectives. First, the jurisprudence will outline the legal doctrine surrounding Aboriginal participation (referred to as consultation and accommodation within the jurisprudence) which serves to describe the overarching principles and objectives behind the doctrine, and describes the manner in which Aboriginal participation is intended to occur. Second, examination of the jurisprudence will also reveal where efforts at 55 incorporating Aboriginal participation in non-Olympic contexts often goes astray, which will allow for a further discussion of the implications that the 2010 Games may have for future efforts at developing Aboriginal participation in British Columbia and Canada. 56 Chapter 3: The Constitution Act, 1982, and Aboriginal Participation 3.1 Introduction As previously noted, the above review of Aboriginal participation in past Olympic Games provides context from which to assess the Vancouver 2010 Games, both through the comparison of Vancouver 2010 efforts in relation to historic Olympic Games, but also by providing the forum for scholars and commentators to provide perspectives on the meaning and content of such Aboriginal participation, which may help to more fully examine the 2010 Games elements. However, past Olympic experiences are not the only means through which context and perspectives for consideration may be found. Indeed, as discussed in the introduction, Canada has a significant legal doctrine, stemming from Section 35(1), which guides the participation of Aboriginal peoples in the development projects which affect them. The legal doctrine surrounding Aboriginal consultation and accommodation (jurisprudential terms for Aboriginal participation) prescribes underlying principles and objectives for such participation which provide additional suggestions as to the forms which Aboriginal participation should take, and outcomes to be achieved. While consideration of the 2010 Games in relation to past Olympic experiences will help to illuminate the implications of 2010 Games for future Olympic Games, consideration of the legal context may indicate the implications of the 2010 Games for the future inclusion of Aboriginal peoples in development projects and initiatives in British Columbia, and perhaps other areas of Canada. Indeed, as will be discussed in greater detail below, the expanding legal doctrine under Section 35(1) clearly mandates more extensive Aboriginal participation in many development projects, and determining how such participation can be carried out effectively, and to the benefit of all parties 57 involved may be the most important legacy of the 2010 Games, if the lessons and implications of the 2010 Games are heeded, and acted upon. Indeed, as noted in the introduction, the Federal and Provincial Governments and Ministries have attempted to develop more formal Aboriginal consultation guidelines and policies in response to this developing legal doctrine. However, as recent reactions to the Discussion Paper on the New Relationship illustrate, the appropriate manner in which to structure such formal guidelines is far from settled. One of the stated goals of this thesis was to consider the implications of the Aboriginal participation in the 2010 Games for broader Aboriginal consultation and accommodation in British Columbia and Canada.163 By understanding the legal principles and objectives which underlie Section 35(1), in conjunction with the guidelines prescribing appropriate consultation and accommodation efforts, we may elucidate forms of Aboriginal participation, or consultation and accommodation, which further the purposes of Section 35(1). These principles and guidelines will outline the manner in which meaningful Aboriginal participation occurs, and may subsequently be applied to our examination of Aboriginal participation in the 2010 Games. This in turn will allow for the consideration of whether Aboriginal participation in the 2010 Games adheres to these legal principles, and also, what lessons the 2010 Games may hold for future circumstances in which Aboriginal consultation and accommodation is required. Therefore, the following chapter must accomplish two main objectives. First, a review of the jurisprudence must identify the principles, objectives and guidelines developed pursuant to Section 35(1) which describe the purpose and content of such 163 See Chapter 1, above, at 1-4 for discussion of purposes of this thesis. See also Chapter 1.2, above, introductory discussion of the legal context surrounding Aboriginal participation. 58 Aboriginal participation. As will be revealed below, judicial decisions surrounding the need for Aboriginal consultation and accommodation (again, the jurisprudential terms for Aboriginal participation) often stress the fact dependent nature of determining what scope of Aboriginal consultation and accommodation is required in specific circumstances. For example, there are significant differences in the levels of Aboriginal participation required in circumstances where Aboriginal rights are proven, versus specific treaty rights, to those in which they are unproven. However, for the purposes of examining Aboriginal participation in the 2010 Games, the objective is not to outline and apply the strict legal guidelines to the Vancouver/Whistler Olympic context. Rather, the objective will be to more generally understand how judicial interpretation of Section 35(1) describes positive instances of Aboriginal consultation and accommodation, and use these to examine the 2010 Games. Indeed, much of the participation of Aboriginal peoples in the 2010 Games falls outside the specific subject matter of Section 35(1) and the resulting jurisprudence, and would therefore be challenging to consider from a strict legal standpoint. Yet, these additional elements may be considered in light of more general legal principles and provide valuable, broader lessons. These general principles will be obtained through the examination of SCC decisions which describe the relationship between the Crown, project proponents and Aboriginal peoples, as well as the purposes behind Section 35(1) and objectives of Aboriginal consultation and accommodation. The jurisprudence examined covers a wide range of circumstances, not all of which directly match those found in the 2010 Games context. However, this wider examination will allow us to more clearly ascertain those principles and objectives which are central to Section 35(1), 59 and may properly be relied upon in the subsequent analysis of Aboriginal participation in the 2010 Games, and consideration of the implications for broader contexts. The second objective of this chapter is to briefly canvass the jurisprudence to determine how Aboriginal participation currently proceeds in other contexts, and to identify issues and barriers which tend to prevent more effective Aboriginal participation from occurring. While carrying out the first objective will provide the general principles which will assist in determining whether Aboriginal participation in the 2010 Games is effective and laudable, or quite the opposite. This second objective will provide a basis for understanding what the implications of the 2010 Games might be for broader efforts of Aboriginal participation in British Columbia in particular and throughout Canada. Indeed, as will be apparent, review of lower court decisions applying the rulings of the SCC to ongoing efforts of the Crown, project proponents and Aboriginal peoples illustrates the difficulty these parties have in structuring effective Aboriginal consultation and accommodation. This review will serve to contrast the Aboriginal participation in the 2010 Games, and more clearly illustrate the specific lessons to be learned from the Games. As this chapter progresses, it is beneficial to consider the analogous roles of the various groups associated with the 2010 Games with those addressed in the jurisprudence. Clearly the Squamish, Lil’wat, Musqueam and Tsleil-Waututh Nations hold the role of the Aboriginal peoples whose claimed rights and title are at stake, and the Provincial and Federal Government’s the Crown. However, it is important to recall that in the 2010 Games, the Bid Corporation, and VANOC are private entities and project proponents, and are not in the same position as the Crown. As will be revealed in the 60 examination of the jurisprudence, this distinction is central to understanding whom owes the ultimate duties and obligations to consult and accommodate Aboriginal people, and extrapolating the efforts of the 2010 Games organizers and Crown agents to larger constructs. Additionally, it is important to recall that the terms of consultation and accommodation are the legal terms which express the more pedestrian term “participation” which is used in this thesis to refer to the general inclusion of Aboriginal peoples in projects, rather than specific legally mandated duties. 3.2 Section 35(1), Recognition, & Reconciliation As noted above, the first task which this chapter must accomplish is to canvass relevant jurisprudence for the principles and guidelines surrounding Aboriginal participation in development projects and initiatives. This review will provide guidance with regards to the overarching purposes and objectives of requiring Aboriginal consultation and accommodation, and more specific guidance on the detailed administration of incorporating Aboriginal participation meaningfully and effectively into the initiatives which impact Aboriginal peoples. At the outset, it is essential to note that jurisprudence surrounding the concept of Aboriginal participation has developed from Section 35(1). Judicial interpretation of Section 35(1) has developed the concept of Aboriginal consultation and accommodation in relation to circumstances in which a project or initiative poses the potential to negatively impact claimed, but not proven, Aboriginal rights or title. Consequently, the development of this doctrine can be differentiated from other Section 35(1) jurisprudence which has addressed the infringement of proven Aboriginal rights and title. 61 Through the discussion of both proven and claimed Aboriginal rights and title, the courts have developed a broad set of principles and guidelines which, in combination, serve to describe the objectives underlying Section 35(1), the need for Aboriginal participation (or consultation and accommodation) to achieve these objectives, and additional guidelines as to how such participation may be effectively carried out. Therefore, the jurisprudence review below is not intended to set out legal rules which will be strictly applied to the 2010 Games, but rather, to illuminate broader guidance which can be used to assess the meaning of Aboriginal participation in this context. As noted, jurisprudence under Section 35(1) addressing the consultation and accommodation of Aboriginal peoples has developed rapidly in recent years. However, it is a concept which finds its beginnings, and guiding principles, in earlier jurisprudence. The concept of requiring the Crown to consult Aboriginal peoples saw initial mention in relation to Crown actions taken pursuant to the Indian Act.164 However, the more relevant discussions of consultation were raised by the SCC in its assessment of Crown infringements of Aboriginal rights and title protected under Section 35(1). The SCC first addressed the concept of Crown obligations to consult Aboriginal peoples in R v. Guerin, creating legal rules of obvious importance to both the Crown and Aboriginal peoples.165 However, it was a trio of cases related to Aboriginal fishing rights, 164 Indian Act, R.S., 1985, c. I-5 [Indian Act]. See R. v Guerin,  2 S.C.R. 335, 13 D.L.R. (4th) 321 (S.C.C.) [“Guerin”] in which the SCC considered whether the Crown owed the Musqueam Indian Band fiduciary duties during the lease of reserve land pursuant to the Indian Act, R.S., 1985, c. I-5. The SCC determined that the Crown did indeed have fiduciary obligations to the Musqueam in this context, and that the Crown should have consulted more closely with the Musqueam before executing the lease. Guerin at 354-6 “In this case the Band surrendered the land to the Crown for lease on certain specified terms. The trial judge found as a fact that such a lease was impossible to obtain. The Crown's duty at that point was to go back to the Band, consult with it, and obtain further instructions. Instead of doing that it went ahead and leased the land on unauthorized terms. In my view it thereby committed a breach of trust…” 165 See R. v Sparrow,  1 S.C.R. 1075, 70 D.L.R. (4th) 385 (“Sparrow”) in which a Musqueam member, charged with breaching the Fisheries Act, R.S.C. 1970, c. F-14, challenged the relevant provisions 62 R. v Van der Peet166, R. v. N.T.C. Smokehouse Ltd.,167 and Gladstone168 which provided greater clarification on the underlying purposes of Section 35(1), and the manner in which these purposes suggest Aboriginal peoples should participate in decisions and development impacting their constitutionally protected rights and title. The elaboration provided in Van der Peet, Gladstone, and Smokehouse offer principles upon which to structure Aboriginal participation, and in particular, suggest the potential need for different approaches to Aboriginal participation depending on the nature of the infringing project or objective pursued. Consideration of this earlier jurisprudence forms the basis for a more complete interpretation of later jurisprudence which addresses Aboriginal consultation and accommodation directly and most clearly articulates the purposes and objectives that Aboriginal participation should strive to attain.169 In each of Van der Peet, Gladstone, and Smokehouse, the SCC addressed the ability of the Crown to impose regulations which infringed an alleged Aboriginal right; in this instance, the right to of the Aboriginal applicants to sell fish.170 In Van der Peet, the SCC addressed the basis for the legal doctrine of Aboriginal rights, describing the overarching purpose behind Section 35(1): “More specifically, what s.35(1) does is provide the constitutional framework through which the fact that Aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledge and reconciled as infringing his Aboriginal rights as protected under Section 35(1) . The SCC indicated that in order for the Crown to justify an infringement of Aboriginal rights it must first establish a valid legislative objective, and second, a legislative scheme or action which is consistent with the Crown’s fiduciary relationship toward Aboriginal peoples at 1110-11. 166  2 S.C.R. 507, 137 D.L.R. (4th) 385 (S.C.C.) [“Van der Peet”]. 167  2 S.C.R. 672, 137 D.L.R. (4th) 528 (S.C.C.) [“Smokehouse”]. 168 Gladstone, supra note 8. 169 See Chapter 3.3 & 3.3.1, below, for discussion of this later jurisprudence. 170 Van der Peet, supra note 166 at paras. 5-6. Gladstone, ibid at paras. 2-4. Smokehouse, supra note 167 at paras. 1-5. 63 with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the Aboriginal rights recognized and affirmed by s.35(1) must be directed towards the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown”171 The identification of acknowledgment and reconciliation as being of fundamental importance to Section 35(1) is of clear significance. Indeed, further commentary from Gladstone indicated that weight which the SCC placed on the concept of reconciliation to imparting meaning to Section 35(1), noting that Crown objectives which may justify an infringement of Aboriginal rights or title are those “…directed at either the recognition of the prior occupation of North America by Aboriginal peoples or…at the reconciliation of Aboriginal prior occupation with the assertion of the sovereignty of the Crown”.172 Clearly the concepts of recognition (or acknowledgment) and reconciliation are paramount to considering the guidance which Section 35(1) jurisprudence provides in determining the manner in which Aboriginal participation should be structured. The SCC stated more expressly that “the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non- Aboriginal groups are the type of objectives which can (at least in the right circumstances) satisfy this standard. In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of Aboriginal societies with the rest of Canadian society may well depend on their successful attainment.”173 This more detailed articulation is also significant as it recognizes the need to balance Aboriginal and non-Aboriginal interests. Additionally, the courts clearly differentiate between the economic and regional fairness objectives addressed in Van der 171 Van der Peet, ibid. at para 31. 172 Gladstone, supra note 168 at para. 72. 173 Ibid. at para. 75. 64 Peet, Gladstone and Smokehouse, with the conservation objectives considered in Sparrow.174 This differentiation is fundamental to examination of Aboriginal participation in the 2010 Games as it seems clear from these judicial comments that the appropriate manner through which the Crown might infringe Aboriginal rights and title for economic reasons, is different than the manner in which the Crown may infringe those same rights for conservation reasons. Though the context of the 2010 Games does not include the infringement of Aboriginal rights or title, this difference between economic and conservation objectives is still of importance, as the Olympics are clearly more properly understood as an economic endeavour, and therefore, consideration of how the Crown is expected to pursue economic objectives differently than conservation objectives may prove central to considering whether Aboriginal participation in the 2010 Games is positive or otherwise. For example, while Sparrow suggests that the Crown will face less scrutiny for the infringement of Aboriginal rights for conservation purposes, while Van der Peet and Gladstone suggest that where economic initiatives are at stake, the Crown will be asked to have taken greater account of Aboriginal interests. Indeed, as will be made apparent from the discussion below, the jurisprudence does suggest that to pursue economic objectives in a manner which furthers the purposes of recognition and reconciliation, the Crown should seek different forms of Aboriginal participation.175 It 174 Sparrow, supra note 165 at 1113 “The justification of conservation and resource management, on the other hand, is surely uncontroversial”. This language stands in stark contrast to the phrase “in the right circumstances” which was applied in relation to objectives of economic and regional fairness. 175 See, below, at 68 – 72 for discussion of Aboriginal title and its implications for the manner in which Aboriginal peoples should participate in decision making processes and development. See also Chapter 3.2.1, below, at 72-76 for summary of early jurisprudence and the manner in which it suggests that Aboriginal participation be pursued. See also, Chapter 3.3.1, below, for further summary interpreting this earlier jurisprudence in light of more recent decisions. 65 will be with this judicial guidance that Aboriginal participation in the 2010 Games, and its broader implications, is considered in the following chapters. Therefore, this jurisprudence review must give more direct consideration to the guidance which the judiciary has provided regarding “the right circumstances” which will ensure that the pursuit of economic objectives (which generally describe the projects of the Olympic Games) advance the purposes of recognition and reconciliation, and what this guidance suggests regarding the manner and means by which Aboriginal participation in such objectives should be effected. Lamer C.J. did not provide further guidance with regards to the “right circumstances” or the manner in which a Crown objective infringing an Aboriginal right may be seen to recognize or reconcile Aboriginal prior occupation.176 However, given that the purposes of recognition and reconciliation have been consistently articulated as underpinning the existence of Section 35(1), we may logically surmise that “the right circumstances” are those which ensure the advancement of recognition and reconciliation. In Van der Peet, Lamer C.J. expressly noted the importance of the inclusion of both Aboriginal and non-Aboriginal perspectives in pursuing the purposes of reconciliation pursuant to Section 35(1). Similarly, McLachlin J (as she then was) writing in dissent, noted that the reconciliation sought under Section 35(1) requires not only a way to reconcile claims of Aboriginal rights with Crown sovereignty, but “to reconcile 176 This aspect of Lamer C.J.’s judgment was heavily criticized by McLachlin J. (as she then was) writing in dissent in Van der Peet supra note 166 para. 309 “‘In the right circumstances’…governments may abridge Aboriginal rights on the basis of an undetermined variety of considerations. While ‘account’ must be taken of the native interest and the Crown’s fiduciary obligation, one is left uncertain as to what degree. At the broadest reach, whatever the government of the day deems necessary in order to reconcile Aboriginal and non-Aboriginal interests must pass muster. In narrower incarnations, the result will depend on doctrine yet to be determined. Upon challenge in the courts, the focus will predictably be on the social justifiability of the measure rather than the rights guaranteed…This, with respect, falls short of the ‘solid constitutional base upon which subsequent negotiations can take place’ of which Dickson C.J. and La Forest J. wrote in Sparrow, at p. 1105”. 66 them in a way that provides the basis for a just and lasting settlement of Aboriginal claims consistent with the high standard which the law imposes on the Crown in its dealings with Aboriginal peoples.”177 Though in dissent, McLachlin J’s comments regarding the importance of recognizing the Aboriginal legal regime as an important aspect of reconciliation would seem to build upon Lamer C.J.’s comments regarding the importance of obtaining Aboriginal perspectives on determinations regarding Aboriginal rights to ensure the purpose of reconciliation underlying Section 35(1) is achieved. In combination, the comments of the Chief Justices (both former and current) indicates that positive Aboriginal participation will see not only the incorporation of Aboriginal perspectives, but also that this incorporation seeks the greater reconciliation of Aboriginal and non-Aboriginal interests. In other words, “the right circumstances” may be achieved where the infringement of Aboriginal rights is tempered by the proper recognition and consideration of Aboriginal perspectives and interests.178 This additionally suggests that Aboriginal participation should be seeking to address not only the specific actions or decisions which are set to impact Aboriginal rights or title, but also broader issues of reconciliation. Although these comments are made in relation to a specific factual context in which Crown action will infringe Aboriginal rights or title protected under Section 35(1), they are nevertheless important in considering the guidance which jurisprudence provides on how Aboriginal participation should best be pursued. Although the 2010 Games do not fit within the circumstances addressed by the 177 Ibid. at para 230. 178 See Kent McNeil, “How Can Infringements of the Constitutional Rights of Aboriginal Peoples Be Justified” (1997) 8 Const. F. 33 at 36. See also Garth Nettheim, Gary D. Meyers & Donna Craig, Indigenous Peoples and Governance Structures, (Canbarra: Aboriginal Studies Press, 2002) at 79 (following articles for scholarly commentary on Aboriginal self-government, and the need for the incorporation of Aboriginal perspectives and governance in Government decision making processes to properly effect recognition). 67 SCC in Van der Peet or Gladstone, this judicial guidance provides meaningful contribution to determining what attributes laudable Aboriginal participation will demonstrate. However, it is readily apparent from a review of this early jurisprudence, that far greater guidance from the judiciary was needed on the circumstances, elements or actions required to ensure that the purposes of recognition and reconciliation underlying Section 35(1) were achieved. While the SCC provided some further guidance in additional cases considering the Crown’s efforts to justify an infringement of Aboriginal rights,179 the most meaningful discussion came in the seminal case of Delgamuukw v. B.C.180 In Delgamuukw the SCC provided important elaboration on Crown objectives which may justify an infringement of Aboriginal rights, the importance of Crown consultation to justification, and the nature of Aboriginal title. This additional guidance is important to the objectives of this chapter because the elaboration on justifying infringements of Aboriginal rights and title, and nature of Aboriginal title itself provide an even clearer indication of the objectives Aboriginal participation should achieve, and the means by which these objectives should be pursued. Delgamuukw is of additional importance as claims of Aboriginal title are frequently the source of requiring the consultation and accommodation of Aboriginal peoples (as will be discussed below)181 and understanding this particular Aboriginal right is fundamental to interpreting the guidance provided by the judiciary which is applicable in our examination of Aboriginal participation in the 2010 Games. Indeed, the Squamish, Lil’wat, Musqueam and Tsleil-Waututh, similarly to the majority of Aboriginal groups in 179 See e.g. Adams, supra note 8 & R. v. Côté,  3 S.C.R. 139, 138 D.L.R. 4th 385 (S.C.C.) [“Côté”]. 180 Delgamuukw v. B.C.,  3 S.C.R. 1010,  10 W.W.R. 34 (S.C.C.) [“Delgamuukw”] 181 See Chapter 3.3 & 3.4, below. 68 British Columbia, have claims to Aboriginal title throughout the region in which the 2010 Games occurred, and understanding the unique nature of Aboriginal title, and its implications for the structure and objectives of Aboriginal participation, is also key to a fulsome examination of the 2010 Games. An aspect of Delgamuukw which is particularly central to obtaining guidance from Section 35(1) jurisprudence on how Aboriginal participation should be carried out is the SCC’s elaboration of the very nature of Aboriginal title. Lamer C.J., again writing for the majority, described as follows: “…Three aspects of Aboriginal title are relevant here. First, Aboriginal title encompasses the right to exclusive use and occupation of the lands; second, Aboriginal title encompasses the right to choose to what use land can be put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of Aboriginal peoples; and third, the lands held pursuant to Aboriginal title have an inescapable economic component.”182 These unique features of Aboriginal title are central to considering how Aboriginal participation should be structured, as they are describe the elements of Aboriginal title which must ultimately be reconciled with claims of Crown sovereignty, and non- Aboriginal interests. The SCC’s description of Aboriginal title is fundamental to conceptualizing the manner in which the guidance in Van der Peet and Gladstone suggested that Aboriginal perspectives must be incorporated in an effort to attain greater reconciliation and lasting settlement. Though Aboriginal title may not have been at risk specifically in the context of the 2010 Games, the judiciary’s discussion of Aboriginal title, and its implications for reconciliation, provide the clearest signals as to what Aboriginal participation should achieve for Aboriginal peoples. 182 Ibid. at para. 166. 69 The SCC elaborated on the implications of Aboriginal title for the Crown, should the Crown undertake an activity which would infringe Aboriginal title: “For example, if the Crown’s fiduciary duty requires that Aboriginal title be given priority, then it is the altered approach to priority that I laid down in Gladstone which should apply. What is required is that the government demonstrate (at para. 62) both ‘the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interest’ of the holders of Aboriginal title in the land. By analogy with Gladstone, this might entail, for example, that governments accommodate the participation of Aboriginal peoples in the development of the resources of British Columbia, and that the conferral of fee simples for agriculture, and of leases and licences for forestry and mining reflect the prior occupation of the Aboriginal title lands, that economic barriers to Aboriginal uses of their lands (e.g., licensing fees) be somewhat reduced.”183 The concept that the exclusive nature of Aboriginal title required the prioritization of Aboriginal participation in development as an element of Crown justification for the infringement of Aboriginal title is particularly suggestive with regards to the means in which the purposes of recognition and reconciliation underlying Section 35(1) are to be pursued in relation to lands over which Aboriginal title is held. First, it would suggest that if the Crown is to give priority to Aboriginal interests over Aboriginal title lands, significant consultations would need to occur between Aboriginal peoples and the Crown in order to determine how Aboriginal priorities for title lands may be affected, and indeed given priority. Secondly, it implies that if the Crown seeks to pursue “economic objectives” as outlined by Lamer C.J., Aboriginal participation in economic development should also be facilitated by the Crown. Though these comments are provided in relation to infringements of Aboriginal title, they clearly hold broader implications. In particular, they would seem to suggest that meaningful Aboriginal participation should seek to 183 Ibid. at para. 167. 70 identify and give priority to Aboriginal interests, and that special effort should be given to facilitate the ability of Aboriginal peoples to pursue their economic interests. Lamer C.J. expanded on this economic characteristic to Aboriginal title land, noting that “compensation is relevant to the question of justification…”184 and that infringements of Aboriginal title require fair compensation, with compensation varying “…with the nature and severity of the infringement and the extent to which Aboriginal interests are accommodated”.185 This commentary is also notable, not only for its express recognition that infringements of Aboriginal title should be compensated, but also, that appropriate compensation is dependent, in part, on the level to which Aboriginal interests are otherwise accommodated. Read in conjunction with Lamer C.J.’s comments above regarding the exclusivity of Aboriginal title and its implications for the manner in which Aboriginal interests in title land must be given priority, it seems apparent that appropriate compensation for an infringement of Aboriginal title may come in many forms including Crown support of Aboriginal priorities for uses of Aboriginal title land, and insuring that Aboriginal peoples are able to realize on the inescapable “economic aspect” of their lands. Again, this suggests that Aboriginal participation, consistent with these comments, should pursue very specific objectives, which may again be considered in our examination of Aboriginal participation in the 2010 Games. In conjunction with the SCC’s discussion of how Aboriginal interests in land are to be appropriately accommodated through prioritizing and compensation, the SCC also noted that an integral aspect of any Crown justification for an infringement of Aboriginal 184 Ibid. at para. 169. 185 Ibid. 71 title required the incorporation of Aboriginal involvement in the decision making processes of the Crown: Lamer C.J. elaborated: “…Aboriginal title encompasses within it a right to choose to what ends a piece of land can be put… This aspect of Aboriginal title suggests that the fiduciary relationship between the Crown and Aboriginal peoples may be satisfied by the involvement of Aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the Aboriginal group has been consulted is relevant to determining whether the infringement of Aboriginal title is justified…The nature and scope of the duty of consultation will vary with 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.”186 This statement is significant in a multitude of ways, but in relation to conceptualizing how Aboriginal participation should be incorporated into economic objectives, it offers two fundamental pieces of guidance. First, is the express recognition that a corollary of Aboriginal title is the right of Aboriginal peoples to exercise decision making power over that Aboriginal title land. Second, is the concept that an appropriate level of Aboriginal participation, much like compensation, should be commensurate to the level of infringement associated with an objective or project. With regards to the first point of guidance, the judiciary again invoked the importance of incorporating Aboriginal perspectives through consultation where Crown activities would infringe an Aboriginal right. However, in Delgamuukw consultation was cited not only as a means through which Aboriginal perspectives could be reconciled with Crown objectives, but also as a necessary means through which the decision making rights associated with Aboriginal title could be properly recognized. The concept that 186 Delgamuukw, supra note 180 at para. 168. 72 Aboriginal title invokes an associated right to decide is very suggestive regarding the level and nature of Aboriginal participation in projects impacting Aboriginal title, but also the objective of such Aboriginal inclusion. The purpose is not only to ensure Aboriginal perspectives are received, but also, to ensure proper recognition of prior Aboriginal occupation and the unique interests and needs of Aboriginal peoples. The recognition that the consultation of Aboriginal peoples is intended to accomplish broader objectives of recognition and reconciliation in addition to gaining Aboriginal perspectives on the specific project, decisions or initiatives set to impact Aboriginal rights or title. Indeed, the judiciary’s discussion of the very manner in which the Crown is expected to interact with Aboriginal peoples provides a further indication that such consultation is intended to further the overall objectives of Section 35(1). Lamer C.J noted the importance of consultations proceeding in good faith, and stressed the importance of pursuing negotiated settlement to the purpose of reconciliation.187 Once again, this guidance combines to suggest that meaningful Aboriginal participation proceeds in a very particular fashion, with the concepts of good faith, greater understanding and broader purposes of Section 35(1) at the fore. 3.2.1 Discussion of Early Aboriginal Consultation Jurisprudence At this juncture it is worth pausing to re-consider the significance of the above jurisprudence, the legal rules they create surrounding Aboriginal rights, and the implications that judicial discussion surrounding the underlying purposes of Section 35(1) may hold for the consideration of how Aboriginal participation in the context of the 187 Ibid. at para. 186 “…Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated…to be a basic purpose of s. 35(1) – ‘the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown’”. 73 2010 Games may be assessed, but also their implications for the development of more formal structures for pursuing the consultation and accommodation of Aboriginal peoples. Indeed, while the above jurisprudence creates a number of obvious legal rules with regards to the treatment and protection of Aboriginal rights under Section 35(1), it is perhaps more important to consider, as the judiciary suggests, the manner in which the above decisions may support the Crown and Aboriginal peoples in their efforts at consultation, accommodation and achieving recognition and reconciliation. A review of the above jurisprudence reveals the key elements which should guide consultation and accommodation efforts. Courts have held that the primary purpose of Section 35(1) is the recognition and reconciliation of prior Aboriginal occupation with the assertion of Crown sovereignty. Indeed, the judiciary consistently indicates that these broader purposes of Section 35(1) should be pursued throughout all Crown interactions with Aboriginal peoples. This suggests that meaningful Aboriginal participation will seek to address not only the circumstances which specifically impact constitutionally protected Aboriginal rights or title, but also the broader need for recognition and reconciliation mandated by Section 35(1). While the above jurisprudence has identified very broad objectives of Section 35(1), and therefore meaningful Aboriginal participation, guidance is also provided as to how these broad objectives should be pursued. The SCC indicated in Van der Peet and Gladstone that the Crown should seek to prioritize Aboriginal rights and title in its allocation of resources amongst Aboriginal and non-Aboriginal interests. This suggests that positive Aboriginal participation will demonstrate the prioritization of such Aboriginal interests. In Delgamuukw the SCC expanded on this concept in relation to 74 Aboriginal title, stating that the prioritization of Aboriginal interests in Aboriginal title land included the specific facilitation of Aboriginal economic interests. This suggests that meaningful Aboriginal participation, at least in relation to Aboriginal title land, will result not only in the prioritization of Aboriginal interests in maintaining access to lands and resources necessary to practicing what is often considered “traditional” Aboriginal rights such as fishing or hunting, but also the prioritization and facilitation of other Aboriginal economic objectives and goals. In addition to these more specific objectives, the above jurisprudence also provided an early indication of the importance of obtaining Aboriginal perspectives, through consultation, are in furthering the objectives of recognition and reconciliation. Obtaining Aboriginal perspectives is necessary to allow the Crown to understand Aboriginal interests, and therefore properly accommodate, prioritize and facilitate such interests. However, obtaining Aboriginal perspectives is also one of the primary means of pursuing the objective of recognition. Therefore, meaningful Aboriginal participation will see not only the pursuit of Aboriginal perspectives, but also the pursuit of Aboriginal perspectives in a manner which properly recognizes the prior occupation of Aboriginal peoples. This may be demonstrated, at least in part, by the adherence to the further guidance which the judiciary provided on the manner in which Aboriginal perspectives should be obtained. Consultations are intended to be carried out in good faith, with the clear intention of addressing Aboriginal interests and concerns, and with the concept that negotiated settlement is the preferred means of reconciling Aboriginal and non- Aboriginal interests. Again, these elements should be evident if Aboriginal participation 75 is going to further the purposes of Section 35(1), and meet with judicial concepts of “positive” or “meaningful” participation. To conclude this review of the above jurisprudence, it is worth restating the manner in which the above guidance was obtained, and its intended use in examining the 2010 Games. The above jurisprudence addresses the infringement of proven Aboriginal rights and title, protected by Section 35(1), in circumstances which do not match those Aboriginal groups involved in the 2010 Games, or indeed most Aboriginal groups, because their claims to rights and title remain unproven. Judicial consideration of Aboriginal participation in relation to unproven rights and title is discussed in the subsection below. Therefore, the legal rules discussed above are not strictly applicable to the 2010 Games. However, the above jurisprudence was examined not to articulate such strict legal rules, but rather to illuminate the more general guidance from the judiciary on how meaningful Aboriginal participation can be described. The Aboriginal participation in the 2010 Games may be examined to consider whether it meets the guidelines espoused by the judiciary above, and can be considered to have furthered the overall objectives of Section 35(1), or alternatively has fallen short of the same principles and standards. Therefore, the above guidance, although not applicable to the 2010 Games in a legally binding sense, will nevertheless aid us in our examination of Aboriginal participation in the 2010 Games. Before delving into the seminal cases on Aboriginal consultation and accommodation, it is perhaps worth noting that within the 2010 Games context it may be notable that the reasons for judgment in Delgamuukw were released on December 11, 76 1997, just 4 days prior to a press conference held by Arthur Griffiths188 and Tourism Vancouver officials discussing the potential of bringing the 2010 Games to Vancouver.189 Though it is uncertain how this ruling may have immediately influenced the organizers behind Vancouver’s plans to host the 2010 Games, Delgamuukw drew substantial media attention and was hailed by many as a landmark decision, and would almost certainly have informed those involved in the early planning of Vancouver’s bid for the 2010 Games, and the newly recognized legal necessity of Aboriginal participation. 3.3 Consultation, Accommodation and Unproven Rights While the above jurisprudence marked the SCC’s early articulation of the purposes of Section 35(1), the meaning of Aboriginal rights and title, and the means by which Aboriginal rights, title and interests should be protected and furthered, there clearly remained a myriad of circumstances which required additional judicial guidance. Among the most important of these, was determining the obligations of the Crown and project proponents to consider Aboriginal perspectives in circumstances where Aboriginal rights and title remained unproven. In the seminal cases of Haida Nation190, Taku River Tlingit First Nation v. British Columbia (Project Assessment Director)191 and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)192 the SCC would consider more directly the concept of consultation, the principles on which consultation 188 Arthur Griffiths is the former owner of the Vancouver Canucks, a professional hockey team playing in the National Hockey League, a prominent business person within Vancouver, and one of the major proponents of Vancouver’s bid for the 2010 Olympic Games. 189 Legislative Library of British Columbia, “Timeline: The Road to the 2010 Winter Olympic and Paralympic Games” by B.K. Plant in Background Brief 2009:2, (British Columbia: online Legislative Library of British Columbia <http://www.llbc.leg.bc.ca/public/background/200902bb_ olympicsupdate.pdf>, 2009) [“Legislative Library Olympic Timeline”] at 2. 190 Haida Nation, supra note 9. 191 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74,  3 S.C.R. 550 (S.C.C.) [Taku Tlingit]. 192 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage 2005 SCC 69 [Mikisew Cree]. 77 was based, and the need for consultation prior to proof of Aboriginal rights and title being granted. By examining the need for Aboriginal participation prior to proving Aboriginal rights or title, Haida Nation, Taku Tlingit and Mikisew Cree will provide rules and principles which can be seen as more directly correlating with the circumstances surrounding Aboriginal participation in the 2010 Games. As was noted above, the purpose of this jurisprudential review is not to set out strict legal rules, but rather to seek broader judicial guidance on what elements comprise meaningful or positive Aboriginal participation. By canvassing a wider breadth of Section 35(1) jurisprudence we may more clearly ascertain those principles and objectives which are fundamental to Section 35(1), and can therefore be more properly relied upon to assess Aboriginal participation in the 2010 Games. However, the review below will also highlight the more strict rules of Aboriginal consultation and accommodation, as a greater understanding of this legal doctrine will more clearly identify the implications of Aboriginal participation in the 2010 Games. Haida Nation and Taku Tlingit are perhaps the most central cases in this discussion of the legal context surrounding Aboriginal participation in the 2010 Games. The SCC released its reasons for judgment in Haida Nation and Taku Tlingit on the same day in December of 2004. Both cases had already garnered significant attention at the British Columbia Court of Appeal (the “BCCA”) in 2002, with the BCCA articulating a duty on both the Crown and the private sector to consult Aboriginal peoples when their activities may negatively impact Aboriginal rights.193 Although the specifics of the 193 Haida Nation v. British Columbia (Forests), 2002 BCCA 157,  6 W.W.R. 243, with supplementary reasons 2002 BCCA 462, 5 B.C.L.R. (4th) 33, aff’d in part, rev’d in part Haida Nation v. British Columbia (Minister of Forests), 2004, SCC 73,  3 S.C.R. 511. 78 BCCA rulings will not be discussed here, it is worth noting that those rulings were rendered during the development of Vancouver’s bid for the 2010 Games, as the plans for development in Whistler, and discussions surrounding Aboriginal participation in the 2010 Games were taking greater shape. Mikisew Cree was released in 2005, and is particularly important in elucidating judicial guidance, as it currently marks the only elaboration from the SCC on the emerging doctrine of Aboriginal consultation and accommodation. In Haida Nation, and Taku Tlingit the courts were asked to assess whether the Crown and private sector were required to consult Aboriginal groups in relation to “unproven” Aboriginal rights.194 Building on the concept of consultation which had been articulated in early jurisprudence, the SCC recognized the need for consultation and accommodation of Aboriginal peoples, even where rights and title were unproven. McLachlin C.J. in Haida Nation recognized that such consultation was indeed necessary to ensure the protection offered by Section 35(1) is not rendered irrelevant prior to negotiated settlement: “…proving [Aboriginal] rights may take time, sometimes a very long time. In the meantime, how are the interests under discussion to be treated? Underlying this question is the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty. Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants? The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult 194 Haida Nation, supra note 9 at para.1 79 with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.”195 This recognition for a need to consult and accommodate Aboriginal peoples was clearly a significant jurisprudential development because it required Aboriginal participation even where Aboriginal rights or title were unproven, which describes the circumstances for most Aboriginal groups. This recognition clearly implied that much greater Aboriginal participation in Crown decision making processes was in store, and indeed, this expansion of the concept of consultation and accommodation is the primary reason (as will be made apparent below)196 that Aboriginal participation in the 2010 Games may hold greater significance. This significance, as will be revealed, is two-fold. First, we will see from our examination of lower court jurisprudence that the Crown is struggling to appropriately respond to its duties to consult and accommodate, which clearly indicates that improved methods for effective and meaningful Aboriginal participation is required. Second, it will be evident that this legal doctrine was emerging as the 2010 Games developed, and this certainly influenced the parties in their efforts to structure Aboriginal participation. While the expansion of the need for consultation and accommodation was of obvious significance, of equal importance was the further discussion of the principles underlying Section 35(1) necessitating Aboriginal consultation and accommodation. Particularly notable was the affirmation that consultation and accommodation in relation 195 Ibid. at paras. 26-27. 196 See Chapter 3.4 & 3.4.1 & 3.5, below, in which lower court jurisprudence is examined and reveals troubling trends in the Crown’s response to judicial guidance in Haida Nation and other seminal cases; additionally, the implications of these decisions and their place within the examination of the 2010 Games is discussed. 80 to unproven rights and title must also be tied to broader processes of recognition and reconciliation mandated by Section 35(1). Indeed, the SCC expressed clearly that the reconciliation mandated by Section 35(1) is “…not a final legal remedy in the usual sense…[r]ather it is a process…” and that consultation and accommodation is similarly “…part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution…”197. These statements from the SCC clearly indicate that meaningful Aboriginal participation should further broader efforts at recognition and reconciliation. It seems apparent that consultation and accommodation which is required in relation to a specific set of circumstances does not take place in a “vacuum”, but rather, must be pursued with regard to the broader need for recognition and reconciliation.198 This need to tie consultation and accommodation to such broader efforts reveals the importance of early jurisprudence such as Van der Peet and Delgamuukw as those rulings articulate the nature and meaning of proven Aboriginal rights and title, and therefore provide guidance as to how objectives of recognition and reconciliation may be effected during the process of consultation and accommodation. For example, though prioritization of Aboriginal interests was not expressly mandated in Haida Nation or Taku Tlingit as it was in Van der Peet, or Delgamuukw, the connection of consultation and accommodation to broader recognition and reconciliation efforts suggests that discussions of prioritization of Aboriginal interests and facilitation of 197 Ibid. at paras. 32-33. 198 Ibid. “To limit reconciliation to the post-proof sphere risks treating reconciliation as a distant legalistic goal, devoid of the ‘meaningful content’ mandated by the ‘solemn commitment’ made by the Crown in recognizing and affirming Aboriginal rights and title…It also risks unfortunate consequences. When the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources changed and denuded. This is not reconciliation. Nor is it honourable.” 81 Aboriginal economic objectives mark meaningful Aboriginal participation even in circumstances where rights and title remain unproven. This reading of the jurisprudence is strengthened by the judiciary’s recognition that the Crown should not exploit resources unilaterally, and in a manner that will effectively remove the ability of Aboriginal peoples to benefit from their resources once resolution to Aboriginal claims is finally attained.199 When considered in light of earlier jurisprudence on how Aboriginal interests should be given priority, particularly in relation to Aboriginal title lands, this suggests that the Crown may best further the processes of recognition and reconciliation by determining how Aboriginal interests may be prioritized in relation to a specific objective or project through the processes of consultation and accommodation. In this manner, the duty to consult and accommodate in relation to a specific objective or project may advance broader recognition and reconciliation by initiating the prioritization of Aboriginal interests which would be expected to occur through broader negotiated settlement. In addition to affirming and expanding upon the need to tie specific instances of Aboriginal consultation and accommodation to broader recognition and reconciliation processes, Haida Nation and Taku Tlingit also elaborated on the nature of the relationship between Crown and Aboriginal peoples, and its implication for the manner in which consultation and accommodation should proceed. McLachlin C.J. highlighted the principle of the “honour of the Crown” as underpinning much of the Crown’s responsibilities towards the appropriate consultation and accommodation of Aboriginal 199 Ibid. 82 peoples.200 The use of the term “honour” in relation to Crown dealings with Aboriginal peoples is of particular interest, as it echoes the language of early jurisprudence surrounding recognition, reconciliation, negotiated settlement and the Crown’s fiduciary responsibilities. However, the term “honour of the Crown” also invokes very particular concepts of behavior for the Crown to pursue. Indeed, McLachlin C.J. noted that “the honour of the Crown is always at stake in its dealings with Aboriginal peoples…It is not a mere incantation, but rather a core precept that finds its application in concrete practices.”201 This additional discussion of the principles and objectives underlying Section 35(1), and mandating consultation and accommodation of Aboriginal peoples, provides further guidance as to the goals and manner in which meaningful Aboriginal participation is to be pursued. Indeed, it seems apparent that the SCC in Haida Nation and Taku Tlingit largely affirmed the principles articulated in previous jurisprudence such as Van der Peet and Delgamuukw. Although this affirmation may seem redundant, this consistency in judicial guidance supports reliance on these principles in assessing the manner in which Aboriginal participation in the 2010 Games was carried out. However, Haida Nation and Taku Tlingit provided not only further guidance on such broad concepts, but also, the articulation of a more precise legal doctrine mandating the consultation and accommodation of Aboriginal peoples where their rights or title, even if unproven, were at risk. This legal doctrine provides even further detail on the manner in 200 Taku Tlingit, supra note 191 at paras. 23-4 “The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question. The Crown’s honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1).” 201 Ibid. at para. 16. 83 which consultation and accommodation are intended to proceed, and therefore further guidelines which may be applied to our examination. Yet it is important to note that the development of this legal doctrine in of itself is of great significance to considering the implications of Aboriginal participation in the 2010 Games. As will be discussed in greater detail below,202 this new doctrine clearly requires far more instances of, and more substantial, consultation and accommodation of Aboriginal peoples. This in turn drives an obvious necessity to improve the discourse and understanding of how such Aboriginal participation may be made more meaningful and effective. In articulating an expanded need for the consultation and accommodation of Aboriginal peoples in Haida Nation and Taku Tlingit, the SCC discussed what may best be described as the “administrative” guidelines describing when such consultation and accommodation is necessary, and the scope and form of these processes that intended to solicit and address Aboriginal perspectives. With regards to the issue of when the duty to consult and accommodate Aboriginal rises, the SCC noted that the duty will “…arise when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it”.203 The need for only constructive knowledge of a potential Aboriginal right, and possibility of adverse effects to that Aboriginal right clearly ensured that a broad range of Crown activities would be captured by the emerging doctrine of consultation and 202 See Chapter 3.3.1, below, for discussion of the implications of the duty to consult and accommodate in relation to earlier jurisprudence. See also, Chapter 3.4 & 3.4.1, below, for discussion of lower court assessment of Crown efforts to consult and accommodate, which clearly reflect the need for greater Aboriginal consultation and accommodation. 203 Ibid. at para. 35. 84 accommodation. However, the SCC expressly indicated that the “…content of the duty…varies with the circumstances.” 204 McLachlin C.J. expanded on this point, describing the scope and content of consultation and accommodate as “…proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.”205 In response to the Crown’s concerns that prior to proof the content of the Aboriginal right can not be properly understood, the SCC held that “…it will frequently be possible to reach an idea of the asserted rights and of their strength sufficient to trigger an obligation to consult and accommodate, short of final judicial determination or settlement.”206 Indeed, in light of the historic marginalization of Aboriginal peoples, and relegation of Aboriginal claims to rights and title, it seems obvious that the objectives of recognition and reconciliation must begin with the Crown demonstrating an understanding of Aboriginal claims.207 This suggests that carrying out an assessment of an Aboriginal group’s claims in relation to the triggering of a duty to consult and accommodate is an important initial step in the recognition and reconciliation process, as it may provide important opportunities to gain greater understanding of Aboriginal claims and perspectives which must be addressed in larger negotiated settlement. Indeed, the SCC endorsed a scholarly definition of consultation which “‘…in its least technical definition is talking together for mutual 204 Ibid. at para. 37. 205 Ibid. at para. 39. 206 Ibid. at para. 36. 207 Ibid. at para. 37 “Difficulties associated with the absence of proof and definition of claims are addressed by assigning appropriate content to the duty, not by denying the existence of a duty.” 85 understanding”208 Clearly meaningful Aboriginal participation must advance such mutual understanding. Once the assessment of the strength of claim to rights or title is done, and the seriousness of the potential adverse effect upon these claims is carried through, the proportionality of the scope and content of the consultation and accommodation required may be determined. McLachlin C.J. described this proportionality as being best understood as a spectrum: “At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice…At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required… Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light.”209 With consultation and accommodation requirements being so dependent on the particular nature and circumstances surrounding a project and effected Aboriginal peoples, it is readily apparent that this emerging legal doctrine is not strongly prescriptive. This is worthwhile noting in the context of examining the 2010 Games, as this aspect of the jurisprudence indicates that the judiciary is unlikely to provide precise answers as to how Aboriginal consultation and accommodation should be structured. Therefore, considering instances of Aboriginal participation, such as the 2010 Games context, may 208 Ibid. at para. 43 quoting T. Isaac and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev. 49, at 61. 209 Ibid. at paras. 43-45. 86 reveal important lessons for those struggling with this emerging legal doctrine within the practical confines of project implementation. Though the courts clearly indicated that the required level of Aboriginal consultation and accommodation would vary substantially with the circumstances, they nevertheless provided suggestions regarding the manner in which Aboriginal perspectives should be solicited and addressed. The SCC described meaningful consultation as providing Aboriginal peoples the opportunity to make submissions to decision-makers, formal participation in decision-making processes, adoption of dispute resolution procedures, and provision of written reasons by decision makers. Inclusion of Aboriginal peoples in this manner would then illustrate how Aboriginal perspectives were considered, which in turn ensured that consultation and accommodation could be made more effective.210 Similarly, the SCC provided more explicit commentary on the purpose and forms for accommodating Aboriginal interests, noting that “meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations.”211 The SCC elaborated that such accommodation requires “…taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim”.212 Clarification on the appropriate means of consultation and accommodation was also provided in Mikisew Cree. In that ruling, the SCC clarified that even at the lower end of the consultation and accommodation spectrum, the Crown was “required to provide notice to the Mikisew and to engage directly with them.”213 The judiciary noted 210 Ibid. at para. 44. 211 Ibid. at para. 46. 212 Ibid. at para. 47. 213 Mikisew Cree, supra note 192 at para. 64. 87 that reliance on the general public consultation process to meet the Crown’s duty to consult and accommodation was inadequate.214 Rather, meaningful Aboriginal engagement under this judicial directive includes the provision of information specifically regarding the project and its potential adverse impact on Mikisew interests, the direct solicitation of Mikisew perspectives and concerns, and a clear indication that attempts are made to minimize adverse impacts to Mikisew interests.215 Notably, the judiciary found that the Crown should not unilaterally impose an accommodation method (in this case the alteration of a road course) because the decision was not made through the consideration or input of Mikisew perspectives.216 Additionally, the SCC also noted that that “…there is some reciprocal onus on the Mikisew to carry their end of the consultation, to make their concerns known, to respond to the government’s attempt to their concerns and suggestions, and to try to reach some mutually satisfactory solution.”217 . Importantly, the SCC articulated that the “common thread” guiding Crown efforts is to substantially address Aboriginal concerns, and to ensure the process of consultation is meaningful. For Aboriginal peoples, the SCC highlighted the reciprocal obligations of Aboriginal claimants to engage with the Crown, to not frustrate the Crown’s good faith attempts of consultation, and not adopt unreasonable positions to prevent the Crown from acting where meaningful consultation has occurred.218 Such guidance again reaffirmed the emphasis which the judiciary placed on good faith negotiation as being the means through which conflicting interests should be reconciled, and again suggests that 214 Ibid. 215 Ibid. 216 Ibid. 217 Ibid. at para. 65. 218 Ibid. at paras. 40-42. 88 negotiated settlement in instances of conflict remain the ideal solution within the context of reconciliation. Again, the judiciary emphasized the importance of attempting “…to harmonize conflicting interests and move further down the path of reconciliation…” through “…good faith efforts to understand each other’s concerns and moves to address them.”219 While the SCC clearly articulated both when the duty to consult and accommodate Aboriginal peoples arose, and provided guidance as to how the scope and nature of consultation and accommodation obligations should occur, they also had to answer the question of who ultimately owed the duty to Aboriginal peoples. The SCC expressly limited the duty to consult and accommodate to the Crown alone because it “…flows from the Crown’s assumption of sovereignty…”220 It is important to note that the Crown’s responsibilities are triggered not only where the Crown is the primary agent carrying on an activity which may infringe a claimed Aboriginal right or title, but in any instances where the Crown is involved (such as through regulatory processes, licensing, or funding).221 This restriction of the duty to consult and accommodate to the Crown left private actors without a similar legal obligation.222 However, the SCC did note that the Crown may “delegate procedural aspects of consultation to industry proponents seeking a 219 Ibid. 220 Ibid. at para. 53. 221 See e.g. Chapter 4.3.4, below, for discussion of initial Olympic planning which would have triggered Crown duties to consult and accommodate. See especially Chapter 188.8.131.52, below, at 161-64 where more detailed consideration of Federal and Provincial environmental assessment legislation, and the regulatory triggers created in response to Haida Nation to ensure Crown properly consults and accommodates Aboriginal peoples are discussed. 222 Haida Nation, supra note 9 at para. 53, “This theory provides no support for an obligation on third parties to consult and accommodate. The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests…the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated”. 89 particular development”.223 This express recognition that the ultimate duty lies with the Crown, but that private project proponents may play central roles in consultation and accommodation procedures, is also of particular importance in considering the implications of Aboriginal participation in the 2010 Games. Indeed, as will be seen in Chapter 4 below224 the committees responsible for bidding on, organizing and hosting the 2010 Games, as proponents of 2010 Olympic projects, were significantly involved in the consultation and accommodation of Aboriginal peoples. This indicates that meaningful Aboriginal participation will often involve the effective coordination of not only the Crown and Aboriginal perspectives and interests, but also private parties. As will be revealed in Chapter 4, this tripartite involvement is a defining feature of much of the Aboriginal participation in the 2010 Games, and this renders the Olympic context increasingly relevant to those involved in future Aboriginal consultation and accommodation efforts in British Columbia and Canada. Haida Nation, Taku Tlingit and Mikisew Cree mark a significant evolution of Section 35(1) jurisprudence of importance to this thesis not only for the additional guidance on how Aboriginal participation should be meaningfully carried out, but also for setting the legal context from which to consider the meaning of Aboriginal participation in the 2010 Games. The extension of consultation and accommodation duties to “pre-proof” circumstances greatly increases the number of instances in which Crown action will be required to solicit Aboriginal perspectives, and (if judicial guidance is followed) seek to forward the objectives of recognition and reconciliation. Support for this interpretation is provided by even a cursory examination of the areas of British 223 Ibid. 224 See especially Chapter 184.108.40.206 & 220.127.116.11, below. 90 Columbia currently subject to treaty negotiations amongst the Crown and Aboriginal peoples clearly demonstrates the growing prominence the consultation and accommodation of Aboriginal peoples will hold.225 Indeed, as will be revealed below,226 the lower courts have seen substantial applications from Aboriginal groups, private project proponents, and the Crown seeking judicial guidance and determinations on their efforts at meeting the standards prescribed above. These lower court decisions are relevant to our examination as they provide specific efforts of consultation and accommodation which have met with judicial scrutiny, and can be contrasted against Aboriginal participation in the 2010 Games. Additionally, and similarly to Haida Nation, Taku Tlingit and Mikisew Cree, these lower court decisions provide not only additional context, but also directly demonstrate the necessity for improved approaches to Aboriginal consultation and accommodation, which in turn influences the implications of the 2010 Games. If a review of such decisions revealed an overwhelming ability of the parties to reach negotiated settlement and advance recognition and reconciliation, then a laudable effort in the context of the 2010 Games would not necessarily be of great importance. However, an examination of this most recent jurisprudence will reveal quite the opposite. Before this brief review of lower court decisions commences, it is worthwhile to pause once again to consider the guidance which the jurisprudence has provided thus far, 225 British Columbia Treaty Commission, Treaty Negotiations In British Columbia Map online: British Columbia Treaty Commission <http://www.ainc-inac.gc.ca/ai/scr/bc/fnbc/mps/trynega-eng.pdf>. (Produced by Professional & Technical Services under the Information Sharing Protocol for Treaties and Aboriginal Government, Indian and Northern Affairs Canada, and Integrated Land Management Bureau, Ministry of Agriculture and Lands for the Ministry of Aboriginal Relations and Reconciliation). 226 See Chapter 3.4 & 3.4.1, below. 91 but also, the need to carefully consider whether our interpretation of the jurisprudence has indeed provided an appropriate set of guidelines for our examination. 3.3.1 Discussion of Consultation and Accommodation In the examination of Haida Nation, Taku Tlingit, and Mikisew Cree above, both the principles underlying the Crown’s duty to consult and accommodate, as well as the more specific administrative and procedural guidance were considered, and some thought was given to how these elements combine to suggest particular forms for Aboriginal consultation and accommodation. However, more detailed thought was not given to potential criticisms of this emerging legal doctrine, and any issues such criticisms may raise regarding Crown or private sector efforts which adhere to this doctrine. The content of this criticism is worthy of far deeper consideration than it will receive here. Nevertheless, the following examination will aid in a more fulsome assessment of Aboriginal participation in the 2010 Games, and the lessons it provides. Accordingly, it is worthwhile to consider this criticism in brief to ensure that an assessment of the 2010 Games which finds perfect adherence to the jurisprudence above is indeed laudable, and serves as a proper example to follow in other contexts. In essence, there is debate amongst commentators as to whether the legal doctrine developed in Sparrow, Van der Peet, Delgamuukw, Haida Nation, Taku Tlinigt and others develops a positive legal framework. Those who praise this emerging legal doctrine highlight “the potential of section 35 as a generative constitutional order”,227 which may create “…a new legal order that accommodates Aboriginal rights, through 227 Brian Slattery, “Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433 at 440. 92 negotiation and agreement with the indigenous peoples affected.”228 Clearly, the interpretation provided in this thesis above is one which endorses such a potential of the Crown’s duty to consult and accommodate. However, several commentators are less positive on the “generative potential” of this jurisprudence and in sharp contrast, view the legal doctrine developed by the judiciary as better understood as merely a means by which Aboriginal rights and title may be infringed. Gordon Christie articulates this criticism clearly, suggesting that the duty to consult may also be viewed as a further assimilative element which serves largely to advance the Crown’s agenda, reinforce Western understandings of land use and ownership, and ultimately maintain the status quo. This interpretation recognizes that while the duty to consult and accommodate curtails the untrammeled use of Crown decision making power, it will effectively do “…no more than potentially [shift] the exploitation into a slightly different form (this is the true underlying nature and extent of ‘accommodation’].”229 Under this critique, the duty to consult and accommodate is simply seen as a tool which, although it may afford some protection to Aboriginal interests, ultimately serves to offer the Crown alternative, legally defensible, means to its desired ends. Additionally, as Christie notes, there will be those Aboriginal groups who may view the concept of consultation and accommodation as simply a means through which modern colonial processes are continually propagated, as Crown understandings of Aboriginal interests as “proven” or “un-proven” will be thrust upon Aboriginal peoples if 228 Ibid. 229 Gordon Christie, “Developing Case Law: The Future of Consultation and Accommodation” (2006) 39 U.B.C. L. Rev. 139 at 163. 93 they wish to set a platform for any consultation demands that will have legal effect in Canada.230 Those who view the jurisprudence as a positive influence, clearly support the notion that greater incorporation of Aboriginal perspectives in decision making processes will result in recognition and reconciliation. In contrast, those that are more critical of this legal doctrine point to the very broad list of objectives endorsed as justifying Section 35(1) infringements, the historic colonial and exploitative behaviour of the Crown, and upholding of the ultimate decision making authority of the Crown as signaling that “business as usual” should be expected in the practical application of consultation and accommodation efforts. These differing interpretations of the jurisprudence are far more nuanced than demonstrated by this simplistic distillation. However, it seems apparent that the chasm between these parties largely stems from divergent views as to how the Crown will actually respond to the guidance provided by the judiciary. Though these different interpretations put varying faith in the Crown to respond appropriately to the guidance of the courts, and whether Crown responses will indeed be “honourable,” they nevertheless seem to share a substantial amount of agreement on what they view as desired outcomes of the Crown’s duty to consult and accommodate. Scholars and commentators on both sides appear to more universally endorse the concepts of recognition and reconciliation as articulated by the judiciary as the appropriate objectives which should underlie Section35(1). Additionally, both interpretations recognize that the process of reconciliation requires both Aboriginal peoples and the Crown to negotiate in good faith to resolve outstanding Aboriginal land and rights claims. They also seem to equally recognize that such resolution will require 230 Ibid. 94 the transfer of at least some decision making authority to Aboriginal peoples over certain areas of land, and that some form of co-management of projects impacting lands covered by such negotiated resolution will almost certainly be required. The more general acceptance and endorsement of these broader purposes and objectives by scholars and commentators provides common ground regarding the manner in which Aboriginal participation should proceed. Accordingly, these aspects should be given special regard in assessing Aboriginal participation in the 2010 Games, and applying judicial guidance to this Olympic context. In particular, this suggests that the guidance gleaned from the above jurisprudence should indeed emphasis the importance of the broader purposes and objectives of Section 35(1) rather than focusing upon the technical or strict requirements of the legal doctrine. In other words, in applying the judicial guidance to the 2010 Games context we must be more mindful of the “generative potential” which the jurisprudence may hold, considering whether the more universally accepted purposes of recognition and reconciliation have indeed been advanced, good faith applied, and the honour of the Crown upheld. Further to this point, we must specifically heed the judiciary’s consistent emphasis on the importance of negotiated settlement, the need for the prioritization and facilitation of Aboriginal interests and objectives, and the economic component of Aboriginal title land as paramount means of ensuring Aboriginal participation is meaningful, and advances the purposes of recognition and reconciliation. Subsequently, we may apply these guidelines in our assessment of Aboriginal participation in the 2010 Games to consider whether the 2010 Games mark an achievement in constructing meaningful Aboriginal participation, or whether the Games are best described as only 95 minimally fulfilling administrative requirements of consultation and accommodation. In this manner, the 2010 Games may serve as a practical illustration of the potential of the above legal doctrine, and provide valuable lessons to Aboriginal peoples, British Columbia and Canada. In our analysis of the 2010 Games, we must be mindful of the criticism which the above jurisprudence has faced, and cognizant that what may appear at first blush to be exemplary examples of Aboriginal participation could also be interpreted as having darker implications. Again, it will be paramount to strive, as the judiciary suggests, to consider Aboriginal participation in the 2010 Games against the larger objectives and purposes of Section 35(1). Though this very brief discussion of the competing interpretations of Section 35(1) jurisprudence does not fully explore the intricacies of the arguments, nor attempt to resolve their differences, the recognition that criticism of the emerging legal doctrine exists is nonetheless important if we are to better understand our utilization of judicial guidance to assess Aboriginal participation in the 2010 Games. By being mindful of such criticism, our utilization of the judicial guidance provided above is less likely to provide incorrect praise, and better serve our purposes of undertaking a more meaningful examination of the 2010 Games, and its implications for structuring Aboriginal participation in other contexts. However, before delving into our examination of the 2010 Games, it is worthwhile to consider a final aspect of the jurisprudence. Lower court decisions assessing efforts to respond to the above judicial guidance will reveal further guidance on the manner in which consultation and accommodation may be carried out meaningfully, but these decisions also provide insight into the current Aboriginal participation context 96 in British Columbia and Canada which will indicate whether the 2010 Games holds greater meaning and implications beyond the Olympic stage. 3.4 Judicial Review of Consultation and Accommodation Efforts Following Haida Nation and Taku Tlingit, it was readily apparent that the articulation of a new duty on the Crown to engage Aboriginal peoples with regards to its activities would likely result in further litigation. Applications for such judicial review were required to examine the efforts of the Crown to meet its duties to consult and accommodate, to seek clarification on the precise nature of Crown conduct which would trigger the duty to consult and accommodate, the appropriate determinations of how much consultation was required in a given circumstance, and elaboration on concepts such as the “honour of the Crown” and “meaningful consultation”. This predictable wave of litigation has indeed come to fruition, with the majority of these decisions flowing from the lower and appeal branches of provincial and federal courts as they attempt to apply the Haida Nation, Taku Tlingit and Mikisew Cree rulings within the practical constructs of economic projects. The following section will emphasize circumstances arising from British Columbian and federal efforts at consultation, as these are the most salient to a discussion of the consultation and accommodation processes occurring in relation to the 2010 Games, which involved substantial financial and regulatory support from both the British Columbia and federal government. However, consideration will also be given to litigation arising from the actions of other provincial governments where the reasons for judgment substantively add to the emerging doctrine of the Crown’s duty to consult and accommodate, or provide insights into the success and failures that particular approaches 97 to consultation may entail. In sum, these lower court decisions will provide additional guidance on how meaningful consultation and accommodation under Section 35(1) should be pursued. More importantly, they illustrate the difficulties which the Crown, project proponents and Aboriginal peoples have encountered in trying to realize on the generative potential of Section 35(1), which in turn may help to demonstrate the importance which the 2010 Games context holds for broader efforts to improve Aboriginal consultation and accommodation. Two particularly relevant cases in this review stem from the British Columbia Supreme Court. Gitanyow First Nation v. British Columbia (Minister of Forests)231 and Huu-Ay-Aht First Nation et al. v. The Minister of Forests et al.232 examined British Columbia’s use of Forest and Range Agreements to carry out the Crown’s duty to consult and accommodate, which were the subject of dispute in relation to planned forestry operations taking place in areas subject to claims of Aboriginal rights or title by the Gitanyow First Nation and Huu-Ay-Aht First Nation respectively.233 The proposed agreements were intended to provide the affected Aboriginal groups, in this case the Gitanyow and Huu-Ay-Aht, with economic compensation and forestry tenures as compensation for any potential infringement of Aboriginal rights and title, and as the process through which the Crown would discharge its duty to consult and accommodate for the duration of the agreement.234 Both the Gitanyow First Nation and the Huu-Ay-Aht First Nation raised similar concerns with regards to the Crown’s approach to consultation and accommodation 231 2004 BCSC 1734, 38 B.C.L.R. (4th) 57 [Gitanyow]. 232 2005 BCSC 697,  3 C.N.L.R. 74 [Huu-Ay-Aht]. 233 Ibid. at paras. 1-3 & Gitanyow, supra note 231 at paras. 1-14. 234 Ibid. at para. 20. 98 through the use of such agreements. First, the agreements were effectively presented as the only option through which consultation and accommodation may occur. Second, the level of compensation was not grounded in the rights and title claimed by the Gitanyow and Huu-Ay-Aht, or the impact of the proposed forestry operations might have on their claims. Rather, the Crown relied on population numbers as the means for determining compensation levels, effectively pre-fixing the level of compensation to be negotiated.235 Finally, the compensation was to cover any infringement of Aboriginal rights or title during the course of the agreement despite the parties being unsure of the specific forestry activities and outcomes which may occur during the course of the agreement.236 The judiciary noted in both Gitanyow and Huu-Ay-Aht that the Crown effectively treated the proposed forest and range agreements as standard form contracts, and negotiation attempts by the Gitanyow and Huu-Ay-Aht saw scant change in the draft agreements provided by the Crown, and the evidence indicated that few topics were actually open for negotiation.237 In both cases the judiciary noted that the approach adopted by the Ministry of Forests to negotiating the forest and range agreements was insufficient to meet the Crown’s duty to consult. Dillon J. in Huu-Ay-Aht described the difficulties with this approach to consultation and accommodation, noting that an assessment of the Crown’s consultation efforts must begin with an assessment of whether the Crown has correctly determined the strength of the Aboriginal claim and potential adverse effects implied by the Crown action,238 and therefore the failure of the Crown to undertake such an assessment ensured the “…complete failure of consultation based on 235 Ibid. 236 Ibid 237 Ibid. at para. 33-7. & Gitanyow, supra note 231 at para. 23. 238 Gitanyow, ibid. at para. 121. 99 the criteria that are constitutionally required for meaningful consultation.”239 In addition, Dillon J. characterized the negotiation tactics adopted by the Crown in Huu-Ay-Aht as “intransigent” and merely giving the appearance of considering the Huu-Ay-Aht concerns, rather than actually doing so.240 Huu-Ay-Aht and Gitanyow reveal that although the concept of negotiated settlement has been endorsed by the judiciary, not every from of negotiation, and negotiation behaviour, will meet with judicial approval . Rather, the purpose of pursuing the consultation and accommodation of Aboriginal peoples is to gain greater understanding of Aboriginal perspectives, interests, and claims to rights and title. The Crown approach in this instance effectively precluded the pursuit of greater mutual understanding, and although it may be viewed as recognizing the economic aspect of Aboriginal title, clearly does little to advance the purposes of recognition and reconciliation. The concept of using contracts to address consultation and accommodation requirements would seem to adhere with the judicial guidance that negotiation settlement and consent endorsed in Section 35(1) jurisprudence. However, Gitanyow and Huu-Ay-Aht illustrate that not every approach to contract negotiation will meet with judicial approval. Indeed, as Gordon Christie notes in his assessment of Gitanyow and Huu-Ay-Aht, the judiciary appears to indicate that although the Crown is free to construct consultation processes, such processes must be designed with regard to the Aboriginal interests at stake, which further suggests that consultation “structures for process are best designed not by Ministry officials working by themselves in Ministry 239 Huu-Ay-Aht, supra note 232 at para. 126. 240 Ibid. at paras. 127-8. 100 offices, but by Ministry officials working in concert with potentially affected Aboriginal nations.”241 For the purposes of this thesis, Gitanyow and Huu-Ay-Aht are relevant in demonstrating the need to consider not only whether Aboriginal participation in the 2010 Games has generally pursued Aboriginal perspectives, and sought to create negotiated agreement on Aboriginal participation, but also whether such efforts have truly furthered mutual understanding, and advanced the processes of recognition and reconciliation. Additionally, Gitanyow and Huu-Ay-Aht illustrate that the Crown may indeed be struggling to develop meaningful approaches to Aboriginal consultation and accommodation, which suggests that Aboriginal participation in the 2010 Games may indeed hold much broader significance. Another case which provides useful guidance is Dene Tha’ First Nation v. Canada (Minister of Environment)242 which considered the appropriateness of a consultation and accommodation process developed by the Crown in relation to a significant pipeline project in the Northwest Territories and Alberta. The regulatory and environmental review of the pipeline required the input of a substantial number of Crown agencies, Aboriginal groups, and other parties.243 To coordinate this large number of parties, an initial cooperation plan was created by the parties to outline their approach to a coordinated regulatory and environmental review,244 while the development of a Joint Review Panel,245 the terms of reference for the environmental assessment,246 and a Crown 241 Christie, supra note 229. 242 2006 FC 1354,  1 C.N.L.R. 1 [Dene Tha’]. 243 Ibid. at paras 1-5. 244 Ibid. at paras. 20-3. 245 Ibid. at paras. 29-30 246 Ibid at paras. 27-8 & paras. 31-6. 101 Consultation Unit were implemented to carry out the broader Aboriginal consultation and accommodation agenda.247 The Dene Tha’ were not included in the development of cooperation plan, development of the Crown Consultation Unit, or the development of the terms of reference for the environmental review, and Dene Tha’ involvement in the creation of the Joint Review Panel consisted of being provided twenty four hours notice to respond to plans which had been developed by the Crown agencies and other Aboriginal groups.248 The Dene Tha’ felt that exclusion from the development of the regulatory and environmental review process amounted to a breach of the Crown’s duty to consult and accommodate the Dene Tha’.249 The Federal Court agreed with the Dene Tha’, and in reasons for judgment that echoed the implications in Gitanyow and Huu-Ay-Aht, criticized the Crown’s failure to full its obligations under Section 35(1) to include the Dene Tha’ in the development of its consultation process. The development of this cooperation plan was considered by the judiciary as an integral step in the development of the pipeline, and may be considered a form of strategic planning which may have significant impacts on Aboriginal rights and title.250 As in Mikisew Cree, the judiciary noted that the failure to include Dene Tha’ perspectives in the development of the environmental and regulatory processes breached the Crown’s constitutional duty, and restated that the Crown may not rely on public consultation processes to discharge its duties.251 The federal court described the Crown’s consultation in this efforts as failing to “even meet the obligations to give notice and 247 Ibid. at paras. 19-23. 248 Ibid. at para. 5. 249 Ibid. at para. 2. 250 Ibid. at para. 106 citing Haida Nation, supra note 9 at para 76. 251 Ibid. at paras. 114-16. 102 opportunity to be heard which underlies the administrative law principle of fairness much less the more onerous constitutional and Crown duty to consult First Nations.”252 Dene Tha’ provides further support for the notion that the development of Crown consultation processes should be carried out with the incorporation of Aboriginal perspectives. In turn, this demonstrates the need for the consultation of Aboriginal peoples to begin at the very earliest stages of planning a proposed development. This judicial guidance provides additional information to apply to our analysis of the 2010 Games context, as it seems apparent Aboriginal participation will best meet emerging judicial standards, and be more meaningful, where Aboriginal perspectives are incorporated earlier. Furthermore, Dene Tha’ suggests that is important that Aboriginal perspectives are incorporated throughout planning processes to ensure their perspectives are properly accounted for. This additional perspective may also be applied to our examination of the 2010 Games, to determine whether Aboriginal participation is more deeply embedded throughout the Olympic planning, development and hosting process, and would pass judicial scrutiny, or more limited in nature. While Gitanyow, Huu-Ay-Aht, and Dene Tha’ indicate that Aboriginal perspectives should be incorporated into the consultation processes of the Crown, Brokenhead Ojibway Nation et al. v. the Attorney General of Canada et al.253 clarifies that this does not automatically impugn any consultation process developed by the Crown. In Brokenhead a number of Treaty One First Nations, successors to the Ojibway First Nations under Treaty One,254 challenged the issuance by the National Energy Board 252 Ibid. at para. 116. 253 2009 FC 484,  3 C.N.L.R. 36 [Brokenhead]. 254 Ibid. at para. 1. 103 (the “NEB”) of certificates for the construction of three pipeline projects.255 This court challenge was centered, in part, on an argument that the consultation process utilized by the NEB was incapable of addressing larger consultation and accommodation issues raised by the pipeline projects.256 In particular the Treaty One First Nations cited the inability of the NEB to consult and accommodate with regards to Treaty One First Nation land claims as constituting a failure of the Crown’s duty to consult and accommodate.257 The Treaty One First Nations suggested that while the NEB may be capable of addressing any project specific concerns raised, that larger issues related to the Treaty One First Nations’ land claims would remain unconsidered or addressed as they were beyond the purview of the NEB.258 Indeed, the Federal Court went on to state that the NEB consultation process was indeed well suited to address mitigation, avoidance and environmental issues which were site and project specific.259 However, the Federal Court also noted that the process was not designed to address the larger issue of unresolved land claims raised by the Treaty One First Nations,260 and as such, “…the NEB process may not be a substitute for the Crown’s duty to consult where a project under review directly affects an area of unallocated land which is the subject of a land claim or which is being used by Aboriginal peoples for traditional purposes.”261 Although the judiciary found in Brokenhead that the Aboriginal applicants could not demonstrate any risk to treaty 255 Ibid. at paras. 2-5. 256 Ibid. at para. 15. 257 Ibid. 258 Ibid. at para. 28. 259 Ibid. at para. 25. 260 Ibid. at paras. 25-26. 261 Ibid. at para. 29. 104 negotiations or title claims,262 it is nevertheless clear that consultation and accommodation must encompass such issues where there is risk to such broader processes taking place under Section 35(1). Brokenhead clearly marks the reaffirmation of the important role which consultation and accommodation is intended to play in the larger processes of recognition and reconciliation. It is apparent that consultation and accommodation will be unlikely to pass judicial scrutiny where Aboriginal concerns regarding broader impacts to rights and title, and the influence may this have on larger reconciliation processes and negotiated settlement, go unaddressed. This clearly illustrates that for Aboriginal participation to advance the processes of recognition and reconciliation, it should include discussions surrounding the need for larger negotiated settlement, and broader impacts to claims of Aboriginal rights and title. This judicial guidance may be useful in our examination of the 2010 Games to determine whether Aboriginal participation in this context encompassed such discussions. While the jurisprudence above addressed the consultation processes adopted by the Crown, and their reasonableness with regard to the circumstances in question, additional guidance from the judiciary has been brought to bear on another key element of consultation, namely, that consultation be carried out in a manner which is appropriately cognizant of the Aboriginal cultures in question. Two notable cases from British Columbia, and one from Newfoundland and Labrador are relevant to this question, and demonstrate the importance of the Crown not only carrying out an appropriate level of consultation, but also carrying out such consultation which is appropriate to the Aboriginal cultures and societies in question. This jurisprudence is 262 Ibid. at para. 33-35. 105 also relevant to our examination of Aboriginal participation in the 2010 Games, as it provides specific guidance on how Aboriginal perspectives should be incorporated and which members of Aboriginal groups are the appropriate representatives. The question of appropriate representation may be particularly relevant in an Olympic context given its predilection for attracting competing opinions and perspectives within the host Aboriginal communities.263 Wii’litswx v. British Columbia (Minister of Forests)264 is the first of these cases, and addressed a complaint from the Hereditary Chiefs of the Gitanyow Nation that the Minister of Forests had failed in its duty to consult and accommodate the Gitanyow.265 The primary complaint of the Gitanyow was that the Crown had insufficiently incorporated was the Gitanyow understandings of territorial boundaries in its planning of forestry operations.266 The court agreed with the Gitanyow, “…the harvesting of timber from Gitanyow traditional territory without reference to Wilp boundaries could result in the effective destruction of individual Wilps in terms of both territorial and social considerations.”267 Given the significance of the Wilp system to the Gitanyow, the court 263 See Chapter 2.7, above, for discussion of the Salt Lake City Games, which revealed internal conflicts amongst Aboriginal groups. See also, Chapter 18.104.22.168, below, in which discussion of Aboriginal participation in the 2010 Games is discussed, and the concept of who “properly” represents Aboriginal peoples is addressed by the FHFN. 264 2008 BCSC 1139,  4 C.N.L.R. 315 [Wii’litswx]. 265 Ibid. at para. 1. 266 Ibid. at para .21 “Gitanyow is organized into eight matrilineal units, collectively called the Huwilp, and individually called Wilps, or Houses. Each Wilp has its own territory, and these collectively form Gitanyow traditional territory. The Huwilp are the social, political, and governing units of Gitanyow. They hold and exercise rights and title to the Gitanyow traditional territory on behalf of the Gitanyow people. Every Gitanyow person belongs to a Wilp. By Virtue of this membership, each person has rights to the territory and resources owned by his or her Wilp, under the direction of the Hereditary Chiefs of each Wilp”. 267 Ibid. at para. 223. 106 found that the Crown’s failure to include the Wilp system within its forestry operations planning amounted to a breach of the Crown’s duty to consult and accommodate.268 Wii’litswx can be interpreted as offering further guidance on the manner in which consultation and accommodation processes may advance the purpose of recognition mandated by Section 35(1). The purpose of recognition is best furthered not only where Aboriginal involvement can be shown, bur also where it can be demonstrably shown that consultation and accommodation efforts reflect the unique cultural and societal perspectives of the Aboriginal peoples involved. This is significant, because it would seem to indicate that the duty to consult and accommodate is indeed intended to be generative in requiring the Crown to alter its own conceptions of land use planning and organizing to incorporate and coincide with Aboriginal conceptions. Additionally, Wii’litswx appears to imply that where the Crown is carrying out consultation with Aboriginal peoples it may be insufficient to rely only on consultation through the governing structures created by the Indian Act, and that meaningful consultation may also require consultation with traditional decision-makers in Aboriginal society, particularly where such decision-makers, or decision making structures, are cited by the Aboriginal peoples in question as being integral to their culture. This interpretation is bolstered by the decision of the Newfoundland and Labrador Court of Appeal in Newfoundland and Labrador v. Labrador Métis Nation269 which considered, among other subjects, whether the Labrador Métis Nation was an appropriate entity to bring a claim alleging a breach of the Crown’s duty to consult and 268 Ibid. at para. 28. 269 2007 NLCA 75, 288 D.L.R. (4th) 641 [Labrador Métis Nation]. 107 accommodate.270 The Labrador Métis Nation is a corporate entity authorized by its members to pursue Aboriginal rights claim on their behalf, and to act as the agent of those members in relation to consultation with the Crown.271 In assessing the appropriateness of the Labrador Métis Nation acting on behalf of its members, the Newfoundland and Labrador Court of Appeal stated: “…the LMN has the authority of its 6,000 members in 24 communities to take measures to protect Aboriginal rights…This is sufficient authorization to entitle the LMN to bring the suit to enforce the duty to consult in the present case.”272 Though this assessment comes with regards to a corporate entity expressly obtaining the consent of its members to undertake consultation with the Crown, the implications appear to be clear. Namely, that the recognition of Aboriginal peoples’ unique perspectives requires the engagement with those entities viewed by the Aboriginal community as appropriately representing that particular community. Wii’litwsx indicates that this may include traditional leadership structures, while Labrador Métis Nation indicates that corporate entities may require inclusion, yet the principle in both instances is the same, that meaningful Aboriginal participation must be premised from the recognition that Aboriginal peoples’ perspectives on appropriate representatives and issues of importance are of equal value to non-Aboriginal or Crown perspectives, and must be given equal weight. While Wii’litswx and Labrador Métis Nation illustrate that appropriate recognition must be given to the decision making processes and appointed representatives 270 Ibid. at para. 1. 271 Ibid. at paras. 3-4. 272 Ibid. at paras. 46-47. 108 of Aboriginal peoples, Red Chris Development v. Quock et al.273 articulates more clearly the courts’ view of whom from Aboriginal communities is capable of guiding participation. In Red Chris the British Columbia Supreme Court considered an application for an injunction by Red Chris Development against members of an Aboriginal community who had erected a blockade preventing the activities of the company.274 The Aboriginal community members who had erected the blockade were located more proximately to the Red Chris development site, and argued that they were owed a duty to consult and accommodate in addition to the larger Aboriginal community.275 In considering this aspect of the Aboriginal respondent’s arguments, the British Columbia Supreme Court stated: “Their [the Aboriginal respondents’] position is that the local users of the land, or as they describe it, the families, should be consulted…. This is analogous to stating that elected representatives do not speak for the people who elected them.”276 Red Chris makes it evident that consultation need not take place with every individual or group claiming a right to be consulted. Read in conjunction with Wii’litswx and Labrador Métis Nation, it would appear that what is required is to incorporate the leadership entities or organizations which are recognized as being part of the decision making process for the community as a whole. A clarifying piece of guidance on how to balance competing interests amongst Aboriginal representatives was provided by Sewell J. in Nlaka’pamux Nation Tribal Council v. Griffin277 where the court was faced with Aboriginal organizations taking conflicting stances on a proposed landfill. Sewell J. 273 2006 BCSC 1472,  B.C.J. No. 2206 [Red Chris]. 274 Ibid. at para. 1. 275 Ibid. at para. 14. 276 Ibid. at paras. 15-6. 277 2009 BCSC 1275,  4 C.N.L.R. 213 [NNTC]. 109 noted that where the Crown is “faced with a diversity of putative representation on behalf of a First Nation”, it must take “…reasonable steps to ensure all points of view within a First Nation are given appropriate consideration.”278 The significance of Wii’litswx, Labrador Métis Nation, Red Chris, and NNTC is the guidance it provides the Crown, or those delegated the Crown’s consultation responsibilities, regarding the Aboriginal representatives which must be included in consultation, but also the implications regarding the capacity of the duty to consult to indeed act as a generative doctrine. Clearly it will be necessary to obtain greater understanding of Aboriginal peoples and culture if consultation and accommodation is to be meaningful, and adhere to the judicially imposed guidelines. This would appear to ensure that the Crown’s duty to consult is not just a minimal check on the Crown’s authority, but is indeed a means through which the Crown must obtain Aboriginal perspectives and understandings of land use, which the Crown must then demonstrably account for in its own planning processes in order to fulfill its duties under Section 35(1). For the purposes of examining the 2010 Games, these cases provide important judicial guidance as to how Aboriginal participation in the Games should demonstrate that the objective of recognition is indeed being furthered. Additionally, it provides more specific guidance on which representatives from Aboriginal peoples should expect to participate in consultation and accommodation, and how conflicting organizations should be dealt with, both of which are often key issues in relation to how Olympic critics and criticism should be considered. 278 Ibid. 110 3.4.1 Discussion - Application of Consultation and Accommodation The lower court jurisprudence discussed above represents a rapidly developing legal doctrine, which the judiciary will no doubt, expand, clarify, and perhaps over-turn in future rulings. Nevertheless, these cases provide both further guidance as to how the principles and guidelines in Haida Nation and Taku Tlingit, as well as earlier jurisprudence, should be considered and applied in specific situations, but also, an assessment of non-2010 Games approaches to Aboriginal participation. It is not surprising that judicial review often occurs in situations in which the Crown has breached its constitutional duties, as these situations are obviously more likely to give rise to Aboriginal concerns, and support the litigation which ultimately culminates in judicial reasons. Therefore, these cases should not be considered an exhaustive examination of Crown responses to its duty to consult and accommodate Aboriginal peoples. However, this lower court jurisprudence is nevertheless significant, as it reveals some troubling tendencies in contemporary Crown approaches, serves as a useful backdrop to contrast against Aboriginal participation in the 2010 Games, and provides the context from which to judge the potential implications of the 2010 Games to broader Aboriginal participation efforts. Indeed it is this context which is perhaps most important to note at this juncture. This lower court jurisprudence reveals a troubling trend of conflict and difficulty stemming from much of the Crown efforts to meaningfully meet its duty to consult and accommodate Aboriginal peoples since the release of Haida Nation and Taku Tlingit. The case law above reveals instances where the Crown simply neglects to carry out any direct consultation of Aboriginal peoples altogether, or the process is fundamentally 111 flawed in that it proceeds without regard for the particular Aboriginal interests or perspectives in question. This phenomenon is similarly reflected in a number of other cases which, for space and time, are not examined such as: Musqueam v. Minister of Sustainable Resource Management,279 Canada (Public Works and Government Services) v. Musqueam First Nation280, Kwikwetlem First Nation v. British Columbia Utilities Commission,281 and Carrier Sekani Tribal Council v. British Columbia (Utilities Commission).282 This trend revealed in this lower court jurisprudence clearly reveals that Aboriginal participation in the 2010 Games, if it is meaningful, and meets the standards articulated by the courts, may be particularly important to assisting all parties to realize the “generative potential” of Section 35(1). An additional aspect of the above jurisprudence which was not discussed in detail but is also worth mention, is the remedy which the judiciary imposes on the Crown and Aboriginal peoples in circumstances where the duty to consult and accommodate has been breached. In almost every instance the judiciary simply requires the parties to continue with consultation and accommodation, guided by the reasons which the court has provided.283 This demonstrates the judiciary’s commitment to ensuring that consultation processes and accommodation outcomes are crafted by the Crown and Aboriginal peoples, and reveals how particularly wasteful the litigation processes is in such instances. If the ultimate remedy is simply for the Crown and Aboriginal peoples to continue with consultation and accommodation processes, albeit with an approach 279 2004 BCSC 506,  3 C.N.L.R. 224. 280 2008 FCA 214, 297 D.L.R. (4th) 349. 281 2009 BCCA 68, 89 B.C.L.R. (4th) 273. 282 2009 BCCA 67, 89 B.C.L.R. (4th) 298, leave to appeal to S.C.C. granted, 33132 (November 5, 2009). 283 See e.g. Gitanyow, supra note 231 at paras. 64-68. See also Huu-Ay-Aht, supra note 232 at para. 128. See also Dene Tha’, supra note 242 at para. 134. 112 amended by the judiciary, it seems patently obvious that all parties would be much better served by simply ensuring consultation and accommodation is meaningfully carried out in the first instance. This again demonstrates the importance of developing more successful and meaningful methods for Aboriginal participation (from the perspective of all parties), and provides further support that Aboriginal participation in the 2010 Games may have greater meaning beyond the Olympic realm. 3.5 Application of Legal Context to the 2010 Games Examination As stated in the introduction to this chapter, the above review of jurisprudence set out to accomplish two main objectives. The first was to construct a set of judicial guidelines from which to assess Aboriginal participation in the 2010 Games. The second was to generally consider the current state of Aboriginal participation in non-Olympic contexts, and identify those barriers which appear to most consistently prevent more effective Aboriginal participation from taking place. Ultimately the jurisprudence has provided ample guidance on the purposes, principles, and manner in which effective Aboriginal participation may be achieved, but also clearly demonstrated the consistent difficulty that the Crown has had in effectively responding to judicial interpretation of Section 35(1) and its constitutional duties. As these two objectives were accomplished through a much detail above, it is worthwhile at this juncture to briefly re-state how this legal context is intended to contribute to the assessment of Aboriginal participation in the 2010 Games below, and consideration of the 2010 Games implications in a broader context. 113 At the outset, it is important to recall that the bidding, organization and hosting of the 2010 Games took place over a long period of time, eight years, and that the Aboriginal groups, and 2010 Games organizers were not operating in a fixed legal context. Haida Nation and Taku Tlingit had reached the British Columbia Court of Appeal stage by late 2002, and the decisions of that court would almost certainly have influenced the perceptions that both the Aboriginal groups, and organizers took of legally mandated Aboriginal participation in certain elements of the 2010 Games organizing, in particular development on lands where the Nations had strong claims of Aboriginal rights or title. Though the legal doctrine during the 2010 Games was ever-changing, the assessment of the 2010 Games below will effectively be carried out based on the current legal doctrine, as discussed above. The reason for assessing Aboriginal participation in the 2010 Games from this legal context, although it did not exist in its entirety during the planning and organization of the Games, is to subject the 2010 Games to the more rigorous assessment available by applying the principles and standards that currently exist, but also to more clearly set out the 2010 Games implications for the legal doctrine in its current form. This clarification is important, as there may be instances in which the Aboriginal participation in the 2010 Games may not meet current legal standards, but would not have been considered a legal breach during that period of time. The assessment below will endeavour to clarify such instances. The duty to consult and accommodate is triggered where the Crown is aware that its objectives may negatively impact a claimed Aboriginal right or title. Therefore, not all of the 2010 Games projects, nor much of the other important organization processes, 114 trigger a duty to consult and accommodate. For example, decisions surrounding Opening and Closing Ceremonies, development of merchandising opportunities, and other important administrative procedures in Olympic hosting, would be unlikely to negatively impact any claimed Aboriginal rights or title. However, such elements of Olympic hosting, and Aboriginal participation in them, form an integral part of Aboriginal participation in the 2010 Games, and can not be simply overlooked. Therefore, while the duty to consult and accommodate is targeted at very specific types of Crown activities, judicial guidance on the subject may nevertheless be considered in assessing these additional situations, and indeed, it is important to consider Aboriginal participation as a whole, in order to fully assess its nature, successes and failures in light of the above jurisprudence. Furthermore, Haida Nation makes clear that necessary levels of consultation and accommodation are directly tied to the strength of claim to rights or title advanced by an Aboriginal group, and therefore the assessment of the 2010 Games should begin with a consideration of the claims to rights or title by the Squamish, Lil’wat, Musqueam, and Tsleil-Waututh. However, the information necessary to undertake a fulsome review of the claims of each First Nation is not readily available, and would indeed be a substantial addition to this research, and therefore the review of Aboriginal participation from a legal context will proceed more generally. Instead of undertaking this strict review, the assessment of Aboriginal participation in the 2010 Games will effectively proceed by considering whether such participation meets with the principles and guidelines provided by the judiciary more generally, rather than considering whether the participation in question was necessitated by the strength of the particular First Nation’s claims. 115 Therefore, it will be more meaningful to assess Aboriginal participation in the 2010 Games has achieved greater meaning and furthered the processes of recognition and reconciliation. By using the legal guidance outlined above, the meaning and implications of Aboriginal participation in the 2010 Games may be better understood. Again, the assessment which follows is not intended to strictly apply the legal guidelines, but rather to proceed more generally, and to consider whether the 2010 Games reflects the legal principles, guidelines and objectives. The more general approach will allow an assessment of the 2010 Games to determine whether Aboriginal participation meets with the principles and objectives highlighted by the judiciary, and to determine how the 2010 Games succeed or failed in relation to other efforts at consultation and accommodation. Obviously this assessment of the 2010 Games will be more useful by identifying not only whether Aboriginal participation adheres to judicial guidelines, but also, how Aboriginal participation met with success or failure. From there it will be possible to consider what the implications of the 2010 Games approaches may be for broader efforts at structuring consultation and accommodation processes. Coupled with the historic review of the historic participation of Aboriginal peoples in the Olympic Games, this jurisprudence will provide a more fulsome means from which to explore and understand Aboriginal participation in the 2010 Games. Without providing such context, it is impossible to determine whether Aboriginal participation in the 2010 Games has been successful, disastrous, or something in between. As discussed more fully above, reliance on judicial guidance to assess Aboriginal participation in the 2010 Games may be criticized itself. However, the 116 rapidly developing jurisprudence on Section 35(1) clearly holds great significance for Aboriginal peoples, and though the wisdom of this emerging doctrine may be challenged, its importance, and relevance to the 2010 Games, can not. 117 Chapter 4: Aboriginal Participation in the 2010 Games 4.1 Introduction The examination and discussion of the two previous chapters centering around the legal context of Aboriginal participation in project generally, and in the historical involvement of Aboriginal peoples in the Olympic Games more specifically, provides a basis from which the Aboriginal participation in the 2010 Games may now be assessed, and consideration of the implications of the 2010 involvement for the broader Olympic and legal context pursued. From the chapter on the historical involvement of Aboriginal peoples in the Olympic Games, it is clear that while such participation has vastly improved over the history of the Games, Aboriginal involvement has still failed to completely satisfy those Aboriginal peoples involved, or critics who have viewed such participation as simply a means to silence or placate Aboriginal dissent. Similarly, our examination of the jurisprudence surrounding Aboriginal participation reveals fractured opinion on the ability of the principles and guidance of this jurisprudence to effect meaningful inclusion of Aboriginal peoples in developments and project which affect them. However, conflicting views of the meaning of Aboriginal participation in the Olympic Games, or in development more generally, reveals both the need and potential for developing more structured approaches to Aboriginal participation which do indeed vault Aboriginal participation to more meaningful ground, and bring more clarity and certainty to the content of Aboriginal inclusion. Indeed, it is this potential for improvement which this research hopes to play a part in. As has been previously stated, the objective of this research is to illuminate and assess the content of Aboriginal participation in the 2010 Games, and consider the 2010 Games implications for future 118 endeavours at incorporating Aboriginal participation into Olympic Games and projects more generally. In doing so, this research hopes to suggest the means by which improved structure for Aboriginal participation may be achieved. As noted, the first task in this endeavour is to examine and discuss the nature and content of Aboriginal participation in the 2010 Games. As is clear from the review of jurisprudence above, we must be concerned not only with the outcomes of Aboriginal participation, but also the processes which structured the outcome. Indeed, the most valuable lessons from the 2010 Games are almost certainly the processes pursued by the Aboriginal groups, organizers and Crown representatives, as such processes may be translated into non-2010 contexts, both Olympic and non-Olympic. Therefore, we will concern ourselves with the means and methods adopted in consultation, discussion and negotiation between the parties, in addition to the final products which those efforts achieved. In order to undertake a more fulsome and complete examination and discussion of Aboriginal participation in the 2010 Games, it will be integral to consider the lessons and suggestions of the previous two chapters throughout. While the final chapter will elaborate on the lessons of the 2010 Games, to understand what has taken place in the 2010 Games context, it will be necessary to compare and contrast the elements of Aboriginal participation both to past games, and jurisprudential guidance. In particular, it will be necessary to highlight where Aboriginal participation in the 2010 Games has succeeded (or failed) in relation to historical Olympics and Crown or private sector efforts at Aboriginal consultation and accommodation as assessed by the judiciary. With specific regard to the assessment of the 2010 Games from a legal context, it is worth noting that the efforts of parties are being assessed from the current state of the law 119 surrounding Aboriginal consultation and accommodation, despite the rapid development of this legal doctrine during the timeframe which encompasses the bidding, organization and hosting of the 2010 Games. Therefore it is worth recalling that the parties would not have been bounded and guided by all the jurisprudence discussed above. Although the Aboriginal participation in the 2010 Games may not have occurred entirely within the legal context that currently exists, undertaking the examination from this basis will best reveal the lessons and implications of Aboriginal participation in the 2010 Games. In pursuing the above objectives, we will explore the context of the 2010 Games both chronologically, and by subject matter. To clarify, the following chapter is generally organized into three distinct phases of Games development. The first is the bid phase, which in this case takes place between 1998 and 2003. The second phase is the organizational phase, which encompasses all the efforts taking place between the success of the bid, and actual hosting of the Games. The third encompasses the actual hosting of the 2010 Games. The arrangement of our examination generally around these three periods of Olympic Games development provides a clear way to examine the progression of Aboriginal, Games organizer, and Crown relationships. However, it is obvious that during each of these periods of Games organizing, a myriad of consultations, negotiations, and planning efforts were pursued on a wide variety of subjects. Therefore, within each of these broad periods, our chronological examination will be broken further down to specific topics and subjects, so the negotiation of specific agreements or pursuit of particular objectives may be clearly outlined. As outlined in the introduction, this review of Aboriginal participation in the 2010 Games is based largely around documents which are available from the parties involved 120 in the organization of the 2010 Games, as well as the thesis work of Dunn who carried out significant interviews with those individuals involved in developing Aboriginal participation in the 2010 Games. These accounts of the 2010 Games have been supplemented with additional newspaper articles and media commentary; however, it is evident that given the extremely recent occurrence of the 2010 Games, that additional relevant information will become available in the months and years that follow. Therefore, a limitation of this research is almost certainly the necessarily imperfect account of all the facets of Aboriginal participation in the 2010 Games. Nevertheless, the material which is relied upon provides a significant level of detail, and as will be demonstrated, provides ample fodder for our assessment and discussion. Finally, it is worth noting that this review has also attempted to provide some account of the dissenting voices which were critical of the 2010 Games generally, and Aboriginal participation in particular. This account has been pursued through the examination of critical commentary from protest groups and other commentators; however, an obvious limitation in this regard is lack of evidence on any criticism that may have existed within the Musqueam, Tsleil-Waututh, Squamish or Lil’wat Nations. If such criticism existed, it was not apparent from an extensive search for commentary or documentation on the subject from members of the FHFN, but clearly further interviews with community members would be an ideal means to obtain a fulsome account of any dissenting opinion. Indeed, it may be a reflection of the success of the approaches taken by the Aboriginal groups, Games organizers and the Crown that more vocal dissenting opinion was not readily available. 121 As will be apparent, the emphasis of the review below is largely on the negotiation processes and agreements reached between the relevant parties, and the land use development issues which arose in relation to the Callaghan Valley. A primary reason for this is that more significant amounts of information were available on these subjects. However, this emphasis is also logical in relation to the objective of considering the implications of the 2010 Games for broader Aboriginal participation in development projects, as reaching agreement on land use planning and project implementation is at the very heart of such endeavours. Therefore, while our examination will attempt to do justice to the significant efforts that went into addressing issues related to cultural involvement, intellectual property use, and other extremely important matters, any disparity in breadth between subjects has been largely driven by the aforementioned points. Indeed, though the level of detail on these subjects may be less, they still have significant lessons to offer. As will be seen below, some of the most significant lessons and implications of Aboriginal participation in the 2010 Games were those related to the construction of effective partnerships, which allowed for meaningful Aboriginal participation. The importance of such partnerships is not limited to land use planning and development contexts, and therefore all facets of Aboriginal participation in the 2010 Games may offer important insights. With the above in mind, we may now consider the nature and content of Aboriginal participation in the 2010 Games in the context of our historical and legal discussion, and its implication for future Olympic and non-Olympic Aboriginal inclusion efforts. 122 4.2 Overview of 2010 Olympic Games Hosting Process Before delving into the specific elements of Aboriginal participation in the 2010 Games, it is worth providing a brief overview of the key processes in bidding, organizing and hosting an Olympic Games, so that the chronology of the 2010 Olympic process is clear. The process of planning and hosting an Olympic Games may be conceived as occurring in four distinct phases: bid; development; hosting; and post-Games legacies. The bid phase encompasses both the domestic bid and international bids of a prospective host city. The domestic bid is undertaken by a city to garner the support of its national Olympic committee, which is necessary in order for a city to be considered by the International Olympic Committee for hosting an Olympic Games. Domestic bids may include competition amongst a number of domestic cities, as was the case for Vancouver/Whistler who competed against Calgary and Quebec City.284 Domestic bids are generally operated by a bid society, whose sole purpose is organizing the domestic bid. Once the domestic bid has been won, a prospective host city then competes against other cities internationally for the right to host the Olympics. The international bid process is typically run by a “bid corporation”, which is created following the success of the domestic bid, and is normally a different entity from the bid society which created the domestic bid. The International Olympic Committee awards the Games to one of three bid cities approximately seven years prior to the date at which the Games are held. Once the bid has been successful, the bid corporation is ended, and a new entity, the 284 Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Parlaympic Winter Games, 2009 BCSC 942, aff’d on other grounds Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522 [Sagen] at para. 9 (Court provides outline of 2010 Games bid process). 123 organizing committee, is created to oversee the development and hosting of the Olympic Games. Following the hosting of the Olympic Games, the organizing committee is eventually wound up, and at this stage there may be a legacies committee (as is the case in Vancouver/Whistler) or no specific entity tasked with following through on Olympic legacies. As the examination of the 2010 Games continues, it is helpful to consider this broad view of Olympic Games organization, in order to understand both the timeframe in which the Olympics are organized, but also how the games organizing entities shift during this time period. Though there may be significant overlap in the individuals who participate in the bid society, Bid Corporation, and organizing committee, the involvement of three entirely separate entities clearly suggests particular issues in developing relationships, participation structures and agreements. With this overview in mind, we may now proceed with the examination and discussion of the 2010 Games themselves. 4.3 Aboriginal Participation in the 2010 Games – The Bid Phase 4.3.1 The Domestic Bid Canada’s domestic bid process related to the 2010 Games was carried out in 1998, and pitted Vancouver/Whistler against Calgary and Quebec City for the right to bid internationally to the IOC.285 Vancouver/Whistler’s bid was developed by the Vancouver/Whistler 2010 Bid Society (the “Bid Society”), a group developed on the initiative of local Vancouver businessman Arthur Griffiths, Vancouver Mayor Phillip Owens, and representatives of British Columbia’s Minister of Small Business, Tourism 285 Ibid. 124 and Culture.286 The Bid Society developed preliminary plans for Vancouver/Whistler’s hosting of the 2010 Games, and was responsible for creating a domestic bid book for submission to the Canadian Olympic Association, and obtaining the support of the municipalities of Vancouver and Whistler for hosting the 2010 Games.287 The Squamish and Lil’wat Nations expressed interest in participating in the Vancouver/Whistler bid from the outset.288 Recognizing that the 2010 Games would be taking place within their traditional territories, Chief Joe Mathias of the Squamish Nation, and Chief Allen Stager and Lyle Leo of the Lil’wat Nation approached the Bid Society to express their interest in participating in the bid process.289 These early efforts of the Squamish and Lil’wat did not result in their formal inclusion within the Bid Society;290 however, it was clear the Bid Society recognized the value of incorporating Aboriginal participation in the planning and hosting of the 2010 Games, through its referencing of Aboriginal participation throughout its domestic bid submissions.291 In addition to these references the domestic bid book included a letter of support from the Squamish Nation, which expressed the desire of the Squamish to develop mutual opportunities to create legacies for Squamish people, and directly referenced involvement in cultural programming.292 This early inclusion of the Squamish and Lil’wat clearly reflected very early Aboriginal participation in contrast to past Olympic Games (which at this stage did not 286 Legislative Library Olympic Timeline, supra note 189. 287 City of Vancouver, Administrative Report RTS No: 00094, Deputy City Manager Report to Standing Committee on City Services and Budgets Committee Regarding 2010 Olympic Bid: Issues and Current Status (28 September, 1998), online: The City of Vancouver <http://vancouver.ca/ctyclerk/cclerk/981008/csb2.htm>. 288 Dunn, supra note 20 at 74 & 75. 289 Ibid. 290 Ibid. 291 Ibid. 292 Ibid. at 75. 125 include the 2000 Sydney Games). However, the participation of the Squamish and Lil’wat was not particularly formal, and the supporting letter from the Squamish indicated that the emphasis of this early participation was largely based on cultural opportunities, which closely reflects the subject matter of previous Aboriginal participation in the Olympics. Nevertheless, it was clear that the Squamish and Lil’wat were seeking more substantive involvement that in past Olympics, and their early involvement reflected their desire, and the Bid Society’s interest, in exploring greater Olympic opportunities for the two Nations. This early inclusion would also seem to reflect the guidance provided by the judiciary in Haida Nation and subsequent decisions which indicate the importance of incorporation Aboriginal perspectives from the outset of decision making processes. In this regard, the 2010 Games would seem to have succeeded where the Crown so often fails. However, at this early stage the Musqueam and Tsleil-Waututh were conspicuous by their absence, and in relation to these two Aboriginal groups, the domestic bid had not succeeded where past Olympics or Crown efforts had failed. This absence may have been based on early visions of how the 2010 Games would be developed, and an understanding that the majority of activity would take place in Squamish and Lil’wat traditional territories, rather than Musqueam and Tsleil- Waututh. This may be legally sound, based on the Haida Nation principles, it clearly reflects the limitations of the legal doctrine to incorporating Aboriginal participation. Nevertheless, the domestic bid reflected more substantive Aboriginal involvement than had previously been seen in an Olympic context, setting the stage for the development of the international bid. 126 On December 1, 1998, the Canadian Olympic Association chose Vancouver/Whistler to represent Canada internationally, in the competition to host the 2010 Olympic and Paralympic Games.293 The Bid Society was then replaced by the Vancouver/Whistler 2010 Winter Olympic and Paralympic Games Bid Corporation (the “Bid Corporation”) in June of 1999, which became responsible for the development of the Vancouver/Whistler international bid for the 2010 Games (the “Bid”).294 4.3.2 The International Bid The Bid Corporation reaffirmed the commitment of the Bid Society to incorporating Aboriginal participation in the planning and hosting of the 2010 Games, stating that it was understood that having the support of Aboriginal peoples and active Aboriginal participation would enrich the Bid, and ultimately the Games themselves.295 Additionally, the early engagement of the Bid Society by the Squamish and Lil’wat indicated to the Bid Corporation the extensive level of participation desired by the Squamish and Lil’wat Nations.296 Furthermore, emerging jurisprudence articulating the existence of Aboriginal title,297 and the necessity for consultation of Aboriginal peoples during projects which may affect their constitutionally protected rights298 created a backdrop of legal risk regarding much of the necessary construction projects intended for the Sea-to-Sky corridor.299 Finally, at precisely the time during the Bid Corporation’s 293 Legislative Library Olympic Timeline, supra note 189 at 3. Sagen, supra note 285. 294 Legislative Library Olympic Timeline, ibid. at 4. 295 Dunn, supra note 20at 75-6. 296 Ibid. at 77. 297 Delgamuukw, supra note 180. 298 Haida Nation v. British Columbia (Forests), 2002 BCCA 157,  6 W.W.R. 243, with supplementary reasons 2002 BCCA 462, 5 B.C.L.R. (4th) 33, aff’d in part, rev’d in part Haida Nation, supra note 9. 299 Dunn, supra note 20 at 78. See also Vancouver 2010 Bid Corporation, Vancouver 2010 Bid Corporation, Vancouver 2010 Olympic Winter Games Bid Book Submission to the International Olympic 127 formation (June 1999), the IOC was adopting Agenda 21 as a guiding document for the Olympic movement, and its express statement recognizing the need for strengthened roles for indigenous peoples in the Olympic movement.300 This confluence of factors created a setting in which Aboriginal participation in 2010 Games could be viewed as an element which would enrich and add a competitive element to the Bid, but was also required from a legal and practical perspective given the level of construction and development taking place in Aboriginal traditional territory, in particular Squamish and Lil’wat claimed territories. The Bid Corporation, recognizing the importance of Aboriginal participation to the Bid and 2010 Games, conceptualized a dual approach to the inclusion of Aboriginal peoples in the 2010 Games.301 The Bid Corporation viewed one element of incorporating Aboriginal participation as encouraging the broad inclusion of Aboriginal peoples throughout Canada in the 2010 Games.302 The second, and more substantial element, of the Bid Corporation’s approach to Aboriginal participation involved relationship building with the Nations, and structuring more direct involvement and benefits for the Nations in the planning and hosting of the 2010 Games.303 The development of this dual approach by the Bid Corporation again reflected a far more substantive approach to Aboriginal participation than had been seen in previous Committee (Vancouver: online: Vancouver 2010 <http://www.vancouver2010.com/more-2010- information/about-vanoc/organizing-committee/bid-history/bid-book/bid-book_88094qM.html>, 2003) [“Bid Book”] at 128-9 (Venues). 300 International Olympic Committee, Olympic Movement’s Agenda 21: Sport for sustainable development (Lausanne: online: International Olympic Committee Sport and Environment Commission <http://multimedia.olympic.org/pdf/en_report 300.pdf>, 1999) at s.3.3.3 “Indigenous populations have strong historical ties to their environment and have played an important part in its preservation. The Olympic Movement endorses the UNCED action in favour of their recognition and the strengthening of their role.” 301 Dunn, supra note 20 at 75-6. 302 Ibid. at 76. 303 Ibid. 128 Olympic Games. Additionally, it clearly reflected a commitment to ensuring that Aboriginal participation would be more structured, and ongoing, which mirrors key guidance provided by the judiciary on developing appropriate consultation and accommodation processes. It is notable that the Bid Corporation’s plans for Aboriginal participation were not overly rigid, but rather, were merely expressions of broad approaches to pursuing Aboriginal participation in the 2010 Games. The specifics how broad inclusion of Aboriginal peoples would occur, or the development of partnerships with local First Nations would be carried had not been determined or decided, which is the approach expressly approved by the judiciary. By adopting some formal outline to pursuing Aboriginal participation, but avoiding unnecessary (and unilateral) rigidity, the Bid Corporation effectively demonstrates an approach which pre-empts “unstructured”, but also displays the necessary flexibility to ensure the issues indicated in Gitanyow are avoided, and consultation will still be meaningful. It is notable that the development of Aboriginal participation at this stage was entirely through the efforts of the Squamish, Lil’wat and the Bid Society and Corporation, and had not yet involved the Crown. 4.3.3 The International Bid – Broad Aboriginal Participation The Bid Corporations’ approach to encouraging the broad participation of Aboriginal communities outside of the Nations involved the development of an Aboriginal Participation Strategy (the “Strategy”).304 The creation of the Strategy began with the hiring of Iain Tait as a Community Relations Director. Tait had previous experience in working with Aboriginal communities, specifically in the context of large sporting events such as the Victoria 1997 North American Indigenous Games, the 304 Ibid. 129 Winnipeg 2002 North American Indigenous Games, and the Cowichan 2008 Indigenous Games.305 Tait developed the Strategy for the Bid Corporation with the input of an Aboriginal Participation Work Group, which included representation from a number of Aboriginal organizations. The Strategy was developed with the intention of guiding the future (should the Bid prove successful) organizing committee’s approach to broad Aboriginal participation.306 Specific details on the content of the Strategy were not obtained through the research efforts here, but as the examination of Aboriginal participation in the 2010 Games continues, the content of the Strategy will be made apparent. As noted above, the development of the Strategy demonstrates the desire of the Bid Corporation, acting as project proponent, to ensure Aboriginal participation was formally pursued. That Aboriginal perspectives were incorporated into the development of the Strategy is also notable, and would seem to adhere to the guidance provided in Dene Tha’ and Brokenhead which indicates the importance of including Aboriginal perspectives in the development of Aboriginal consultation and accommodation structures and strategies. However, the Strategy was not directly concerned with the impacts of the 2010 Games to those Aboriginal groups whose traditional territories the Olympics were to occur in. Rather, the Strategy was intended to pursue broader Aboriginal participation throughout Canada, and in this regard the Strategy was also unique as past Canadian Olympics had not sought such nation – wide inclusion. 305 Ibid. 306 Ibid. See also Vancouver 2010 Bid Corporation, Vancouver 2010 Preliminary Impact Assessment (British Columbia: online: Legislative Library of British Columbia <http://www.llbc.leg.bc.ca/public/pubdocs/bcdocs/361736/prelim_impact_assessment_ov.pdf>, 2003). 130 4.3.4 The International Bid – Local Aboriginal Participation While the inclusion of broad Aboriginal participation would ensure that First Nations throughout Canada would have opportunities to participate in the 2010 Games, it was clear that the more significant aspect of Aboriginal participation for the 2010 Games would come through the involvement of Squamish, Lil’wat, Musqueam and Tsleil- Waututh First Nations, the Aboriginal groups within whose traditional territories the 2010 Games would occur. Though the Bid Corporation approached the broad participation of Aboriginal peoples through the development of a coordinated strategy, the Bid Corporation efforts aimed at developing relationships with the regional Aboriginal groups and incorporating their participation were not guided by a parallel, more formal strategy. Rather, the participation of these specific Aboriginal groups was pursued in a less structured fashion, with the Squamish and Lil’wat involvement coming earlier, and being largely separate from the involvement of the Musqueam and Tsleil-Waututh. The early involvement of the Squamish and Lil’wat Nations in the domestic bid led to their inclusion on the Bid Corporation’s Board of Directors. The Squamish and Lil’wat were each invited to fill a seat on the Bid Corporation’s Board during its inception, with Chief Joe Mathias and later Chief Gibby Jacob representing the Squamish, while Band Councillor Lyle Leo represented the Lil’wat.307 Following the inclusion of the Squamish and Lil’wat representatives on the Bid Corporation’s Board of Directors, an Aboriginal Secretariat was created within the Bid Corporation. The Secretariat was comprised of further Squamish and Lil’wat representatives, with 307 Dunn, supra note 20 at 77. 131 $150,000 funding provided each by the Federal and Provincial Governments.308 Ultimately the Secretariat proved less than effective, with participants citing difficulties incorporating the Secretariat within the rest of the Bid Corporations activities.309 Though this is not entirely clear from the information available, it seems likely that any ineffectiveness of the Aboriginal Secretariat may have played a role in the less structured approach to pursuing the involvement of the host First Nations, and in particular, the Musqueam/Tsleil-Waututh. Representatives of the Musqueam and Tsleil-Waututh were notably absent from this level of participation during the early stages of development of the Bid Corporation. This early emphasis on Squamish/Lil’wat participation was largely spurred by the significant number of developments which would be taking place within Squamish/Lil’wat traditional territory.310 The proposed plans called for the construction of an entirely new Nordic centre and athletes’ village on undeveloped, Crown held lands within Squamish/Lil’wat traditional territories.311 In contrast, the Olympic construction proposed within Musqueam/Tsleil-Waututh traditional territories was slated for development on privately held lands,312 which substantially weakens the claims of the Musqueam or Tsleil-Waututh to Aboriginal rights or title over those lands, and lessens the potential impacts of development to those claims.313 As Haida Nation indicates, these 308 Canada, Canada’s Games: Aboriginal Participation, online: Canada’s Games <http://www.canada2010.gc.ca/obj/pa-ap/040201-eng.cfm>. 309 Dunn, supra note 20 at 77. 310 Ibid. at 78 & 98. 311 Bid Book, supra note 299 at 128-29 (Venues), & 187 (Olympic Village), & 112-20 (Communications and Media Services) where Bid Corporation outlines new construction proposed for hosting the 2010 Games. 312 Ibid. 313 See Delgamuukw, supra note 180 paras. 143-159 for discussion of proof of Aboriginal title and importance of exclusivity and continual use of land by Aboriginal claimants to the strength of their claims to Aboriginal title. Delgamuukw demonstrates that in circumstances where lands have been privately held 132 differences between strength of claim and potential impacts to claimed rights and title directly correlate to the level of consultation and accommodation required.314 Therefore, it might be expected that the Squamish/Lil’wat involvement would be more substantial than the Musqueam/Tsleil-Waututh. However, the concept of a legal duty to consult and accommodate Aboriginal peoples had not fully crystallized at this time315 and almost certainly the more substantial element which acted as a strong incentive to ensure meaningful participation of the Squamish and Lil’wat, was the very nature of the Olympics. Tight deadlines, global media attention, and the resulting potential for public relations disasters, are integral elements of hosting an Olympic Games, and the potential for conflicts with the Squamish and Lil’wat on many key Olympic projects was undoubtedly the more significant factor which provided the Squamish/Lil’wat Nations with increased leverage to pursue their 2010 Games participation.316 Indeed, the importance of these factors must not be understated, as the “incentive” such factors create to develop mutually acceptable solutions may hold specific implications for the lessons flowing from Aboriginal participation in the 2010 Games. While continuing their involvement with the Bid Corporation’s board, and Aboriginal Secretariat, the Squamish and Lil’wat chose to formalize their joint efforts in for significant periods of time, especially prior to the Constitution Act, 1982 that Aboriginal claims will likely be much weaker. This largely describes the development proposed within the Cities of Vancouver and Richmond for the 2010 Games. 314 See Chapter 3.3, above, at 82-85 for discussion of Haida Nation and jurisprudence describing the scope of the Crown’s duty to consult and accommodate Aboriginal peoples. 315 See Chapter 3.3, above, at 76-78 for description of the development of jurisprudence. 316 See e.g. Dunn, supra note 20, at 97 quoting Terry Wright of VANOC, “‘The IOC in its evaluation were very careful to independently interview the First Nations and make sure that in fact they were supportive and that they had believed they were fairly treated and those independent interviews affirmed what we were saying which was obviously important to the IOCs perception of the project.’” This quote indicates the IOC’s interest in ensuring that purported Aboriginal support for the 2010 Games was legitimate, and reveals the importance which such issues hold in hosting an Olympic Games. 133 participating in the Bid and 2010 Games through the creation of a Protocol Agreement.317 Signed during March of 2001, the Protocol Agreement identified common objectives of the Squamish and Lil’wat Nations, and identified the goals of exploring co-management and joint decision making among the two First Nations.318 The Protocol Agreement identified three common objectives among the Squamish and Lil’wat Nations: first, to respect the historic and current presence of the Squamish and Lil’wat in the region; second to protect their respective Aboriginal rights and title; and third, to take advantage of economic opportunities, including the proposed 2010 Games.319 In addition to identifying these objectives, the Protocol Agreement signaled the commitment of the Squamish and Lil’wat Nations to make and implement decisions concerning activities within their traditional territories jointly, and to “to examine the possibilities of shared jurisdiction and co-management.”320 The identification of common objectives and exploration of joint decision making and co-management may not appear particularly significant, however, by coordinating their efforts, the Squamish and Lil’wat positioned themselves to exert greater leverage in their participation with the Bid Corporation, and obtain guaranteed benefits from their participation in, and support for, the Bid and future involvement in the development and hosting of the 2010 Games. Indeed, as was revealed in the review of Aboriginal participation in the Salt Lake City Games, the lack of coordination amongst Utah 317 Squamish Lil’wat Cultural Centre, Protocol Agreement, online: Squamish Lil’wat Cultural Centre <http://www.slcc.ca/about-us/tale-of-two-nations/protocol-agreement>. See also British Columbia, Ministry of Aboriginal Relations and Reconciliation, Squamish Nation: Other Activities, online: Ministry of Aboriginal Relations and Reconciliation, BC First Nations, Squamish Nation <http://www.gov.bc.ca/arr/firstnation/squamish/default.html>. 318 Ibid. 319 Ibid. 320 Squamish Lil’wat Cultural Centre, ibid. at para. 2. 134 Aboriginal groups served as a major barrier to success.321 Additionally, the approach adopted by the Squamish and Lil’wat marks an interesting approach in light of the jurisprudence considering the Crown’s duty to consult and accommodate. In several cases, such as Dene Tha’ or Brokenhead, consultation processes involved a number of different Aboriginal groups, and it seems readily apparent that one of the difficulties the Crown has encountered in such situations is structuring effective consultation processes for all Aboriginal groups involved.322 The approach of the Squamish and Lil’wat to coordinate their own efforts illustrates a unique approach by two Aboriginal groups to structure their own engagement, and as will be revealed below, developing such coordination significant improved their ability to engage with their project proponents (the Bid Corporation) and the Crown. Indeed, the collaborative approach adopted by the Squamish and Lil’wat carries obvious lessons for structuring more effective Aboriginal participation efforts in the future, both in the Olympics, and more generally. In August of 2002, as the Bid Corporation was finalizing the Bid Book for submission to the IOC,323 the Squamish and Lil’wat Nations indicated their expectations that they would see similar benefits from participation in the development and hosting of the 2010 Games as other partners and host communities.324 The Squamish and Lil’wat expressed this expectation shortly after The Resort Municipality of Whistler received a substantial package of benefits, including the addition of 300 acres of Provincial Crown land to its municipal boundaries, for its participation and support for hosting the 2010 321 See Chapter 2.7, above, at 48-51 for discussion of issues encountered in Aboriginal participation in the Salt Lake City Games. 322 See Chapter 3.4, above, at 98-102 for discussion of Dene Tha’ and Brokenhead. 323 Legislative Library Olympic Timeline, supra note 189 at 4. 324 Dunn, supra note 20, at 78-9. 135 Games.325 These benefits, as well as Whistler’s obligations, were formalized through the negotiation of a Multiparty Agreement (the “MPA”).326 The MPA was negotiated amongst the Olympic partners supporting the Vancouver/Whistler Bid, namely the Federal Government, the Province of British Columbia, the City of Vancouver, Canadian Olympic Association, Canadian Paralympic Association, and the Bid Corporation, under which the responsibilities and benefits of each were clearly outlined.327 The Squamish and Lil’wat felt their continued support of the Bid warranted similar benefits and legal commitments, and approached the Bid Corporation with the intention of obtaining a formal agreement addressing their concerns.328 During these negotiations, and the Squamish and Lil’wat’s expression of interest, the British Columbia Court of Appeal had released its ruling which preceded Haida Nation and Taku Tlingit, in which the Court of Appeal recognized the duty of the Crown to consult and accommodate Aboriginal peoples, but had also imparted this duty on private parties.329 Though these concepts had not fully crystallized, and the Court of Appeal’s decision had been appealed to the Supreme Court of Canada,330 it was apparent to the Bid Corporation and the Province that the current consultation and accommodation 325 Ibid. See also, Whistler Host Mountain Resort, “Investing in the Dream: Whistler – Host Mountain Resort 2010 Olympic and Paralympic Games 2010 Winter Games Budget” (September 2008) online: <http://www.whistler2010.com/pdf/investing-in-the-dream.pdf>. 326 Multiparty Agreement for the 2010 Winter Olympic and Paralympic Games, Government of Canada represented by Minister of Canadian Heritage), Government of British Columbia (represented by Minister of Community, Aboriginal and Women’s Services, City of Vancouver, Resort Municipality of Whistler, Canadian Olympic Committee, Canadian Paralympic Committee & Vancouver 2010 Bid Corporation, 14 November 2002, online: Canada’s Games <http://www.canada2010.gc.ca/role/gc/mpa/MPA-e.PDF> [“MPA”]. 327 Ibid. 328 Dunn, supra note 20 at 78-79. 329 See Haida Nation BCCA decision, supra note 298. Note, this aspect of the BCCA decision was overturned by the Supreme Court of Canada in Haida Nation, supra note 9. See Chapter 3.3., for discussion of Haida Nation, Taku Tlingit and Mikisew Cree for explanation of why duties to consult and accommodate apply only to the Crown. 330 Ibid. leave had been granted November 14, 2002. 136 afforded to the Squamish and Lil’wat would likely be inadequate under this emerging doctrine.331 Additionally, it was apparent that Aboriginal support for the 2010 Games would be crucial to the success of the Bid, and organization of the 2010 Games.332 Therefore, the Bid Corporation and Province of British Columbia committed to negotiating a benefits agreement for the Squamish and Lil’wat, embarking on an intense process of negotiations which culminated in the Shared Legacies Agreement (the “SLA”),333 a document which would shape much of the substantive opportunities for the Nations in the 2010 Games. The SLA was executed on November 22, 2002, eight weeks after negotiations began, and eight days following the completion of the MPA. The SLA created a slate of benefits for the Squamish and Lil’wat Nations, some of which were guaranteed regardless of the success of the Bid, while others would be extended only should the Bid prove successful. Those benefits guaranteed to the Squamish and Lil’wat were: a. the transfer of 300 acres of fee simple land from the Province to the Nations to pursue economic development opportunities within their shared territories;334 b. the development of a Skills and Training Legacy Project, to which the Province agreed to contribute $2.3 million over three years;335 c. a naming and recognition project which would see the Province and Nations collaborate to include Aboriginal names for places throughout the Callaghan Valley, the contribution of $500,000 from the Province in support of the project; and336 d. the provision of $3 million from the Provincial government towards the construction of a proposed $15 million Squamish and Lil’wat Cultural Centre.337 331 Dunn, supra note 20, at 78-9. 332 Ibid. at 97. 333 Partners Cr
UBC Theses and Dissertations
Aboriginal participation in the Vancouver/Whistler 2010 Olympic Games : consultation, reconciliation… Sidsworth, Robin 2010
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