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Aboriginal participation in the Vancouver/Whistler 2010 Olympic Games : consultation, reconciliation.. Sidsworth, Robin 2010-09-01

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  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     i Abstract  This thesis investigates Aboriginal participation in the Vancouver/Whistler 2010 Winter Olympic Games to ases 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 generaly. This thesis employs two means for providing the context and developing guidelines from which to ases Aboriginal participation in the 2010 Games. The first considers Aboriginal participation in past Olympic Games, which provides historic examples to contrast against 2010 Games eforts, and describes the Olympic context in which the 2010 Games occurred. Review of past Olympic Games reveals litle meaningful Aboriginal participation, but indicates the increasing importance that sustainability isues, such as Aboriginal participation, pose for the Olympic Games. The second consists of the examination of jurisprudence addresing how Aboriginal peoples are expected to participate in projects and decision making proceses in light of the constitutional protection aforded 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 acommodation 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 atention specificaly to Aboriginal participation in the 2010 Games. The utilization of the historic Olympic and Canadian legal contexts to ases the 2010 Games reveals that     ii the Aboriginal participation which occurred was largely succesful and praiseworthy. Aboriginal participation in the 2010 Games far exced that of previous Olympics, and marks a significant improvement on much of the eforts to pursue Aboriginal participation asesed by the judiciary. This indicates that Aboriginal participation in the 2010 Games holds significant lesons for both the Olympics, and those seking more efective Aboriginal participation in British Columbia and Canada.       iv Table of Contents   ABSTRACT.............................................................................i TABLE OF CONTENTS..................................................................iv LIST OF ABREVIATIONS..............................................................vi ACKNOWLEDGMENTS................................................................vii 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........................................1 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 SUMER OLYMPIC GAMES 1976.............................................25 2.4 CALGARY WINTER OLYMPICS 198....................................................30 2.5 THE OLYMPIC MOVEMENT’S AGENDA 21 FOR SUSTAINABLE SPORT..........................36 2.6 SYDNEY SUMER OLYMPICS 200.....................................................40 2.7 SALT LAKE CITY WINTER OLYMPICS 202..............................................49 2.8 DISCUSION.......................................................................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 Discusion of Early Aboriginal Consultation Jurisprudence............................72 3.3 CONSULTATION, ACCOMODATION AND UNPROVEN RIGHTS...............................76 3.3.1 Discusion of Consultation and Acomodation.....................................91 3.4 JUDICIAL REVIEW OF CONSULTATION AND ACCOMODATION EFORTS.......................96 3.4.1 Discusion - Aplication of Consultation and Acomodation.........................10 3.5 APLICATION OF LEGAL CONTEXT TO THE 2010 GAMES EXAMINATION......................12 CHAPTER 4: ABORIGINAL PARTICIPATION IN THE 2010 GAMES.....................17 4.1 INTRODUCTION....................................................................17 4.2 OVERVIEW OF 2010 OLYMPIC GAMES HOSTING PROCES.................................12 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: Discusion......................................................15 4.4  ABORIGINAL PARTICIPATION IN THE 2010 GAMES: THE ORGANIZATION PHASE...............161 4.4.1 Organization Phase: The Implementation of the SLA................................163 4.4.1.1 Implementing the SLA – Whistler Nordic Centre and Contracting Oportunities.............163 4.4.1.2 Implementation of the SLA – Separate Agrement for Highway Expansion.................205 4.4.1.3 Implementation of the SLA – Housing Legacy.........................................20 4.4.1.4 Implementation of the SLA – Cultural Centre..........................................22 4.4.1.5 Implementation of the SLA – Shared Ownership of Facilities & Endowment Fund...........25 4.4.1.6 Implementation of the SLA – Transfer of Lands for Development...........................27 4.4.1.7 Implementation of the SLA – Skils and Training Legacy Project...........................232 4.4.1.8 Implementation of the SLA – Sumary................................................23 4.4.2 The Implementation of the MOU.................................................235 4.4.3 The Four Host First Nations....................................................240     v 4.4.3.1 The Four Host First Nations – Development of the Four Host First Nations...................241 4.4.3.2 The Four Host First Nations – Formal Relationship with VANOC.........................245 4.4.3.3 The Four Host First Nations: Economic Development....................................252 4.4.3.4 The Four Host First Nations: Cultural Awarenes and Education..........................264 4.4.3.5 The Organizational Phase – FHFN: Aboriginal Youth in Sport............................272 4.4.3.6 The Four Host First Nations – Comunication and Relationship Development..............273 4.4.3.7 The Four Host First Nations: Sumary.................................................279 4.4.4 The Organization Phase – Discusion.............................................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 – Discusion..........................................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 ACCOMODATION......296 BIBLIOGRAPHY......................................................................306     vi List of Abreviations  “2010 Games” Vancouver/Whistler 2010 Winter Olympic and Paralympic Games Organizing Commite  “Agenda 21” International Olympic Commite, 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 Submision to the International Olympic Commite  “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  “BCA”  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 Agrement betwen FHFN made 2004 Agrement”   “FHFNS”  Four Host First Nations Secretariat  “EAO”  British Columbia Environmental Asesment Ofice  “MOU”  Memorandum of Understandings betwen Bid Corporation and    usqueam, and Bid Corporation and Tsleil-Waututh   “MPA” Agrement betwen British Columbia, Canada, City of Vancouver, Resort Municipality of Whistler, Canadian Olympic Commite, Canadian Paralympic Commite, Canadian Olympic Commite, and Vancouver 2010 Bid Corporation entitled Multi-party Agrement      vii “Organizing  Bid Society, Bid Corporation and VANOC Commites”  “Protocol Agrement” Agrement betwen Squamish Nation and Lil’wat Nation executed March, 2001  “SC”  Supreme Court of Canada  “Statement”  Statement of Principles Agrement betwen VANOC and FHFN  “SLA” Agrement betwen 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 Commite for the Vancouver/Whistler 2010  Olympic and Paralympic Winter Games  “WNC”  Whistler Nordic Centre     vii Acknowledgments   My time in the Master of Laws program at UBC has been one of great joy and ilumination, 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 Profesor 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 succes than I could have hoped for, and I am forever grateful. I must also thank Tom Isac, who first introduced me to the world of Aboriginal law, and whose pasion for the subject has always been a source of inspiration.   I also owe a debt of gratitude to Profesor Karin Mickelson, without whom this year would not have been possible. I must also expres my appreciation for Joanne Chung and her tireles ability to answer al my graduate studies questions. Thanks also to Profesor Mary Liston, and the other students in the LM program, who made my Thursdays extremely enlightening, and always entertaining.   Susie, Margie, Mum and Dad, you’re stuck with me, yet you never sem to complain. I love you. You have al put up with my endles 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 al your editing skils, your wilingnes to have long conversations on Aboriginal law, and your uncanny ability to get me back on track no mater how far I may have wandered (which was mostly around campus).   Thank you most of al to Clare, I love you. Your support and love made this year especialy amazing, and I couldn’t have asked for a beter 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 degre of your own. You made me laugh and smile the whole year through, and your cookies kept me fueled during the last hours. I realy realy 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 physicaly and economicaly, but also socialy and politicaly. This transformative power of the Olympic Games can have both positive and negative efects. The displacement of the homeles and impoverished, environmental degradation, restriction of civil liberties, legacies of rarely used Olympic facilities and substantial economic deficits al 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 betwen 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 presure 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 addresed, 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 al forms of development is of paramount importance.  This paper seks 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 generaly, and for the broader participation of Aboriginal peoples in British Columbia and Canada more generaly. This examination wil demonstrate that the participation of Aboriginal peoples in the 2010 Games far surpases that of previous Olympics; but more importantly, the paper wil focus on practical isues and solutions in regards to the implementation of the Crown’s constitutionaly mandated duties to consult and acommodate Aboriginal peoples.  To cary out a fulsome examination of Aboriginal participation in the 2010 Games, and consider its implications within the broader context of Aboriginal consultation and acommodation, this paper wil focus on thre broad subjects: a review of maters 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 finaly a direct examination of the elements which have structured and influenced Aboriginal participation in the 2010 Games. Following these enquiries, further commentary wil addres the implications of the policies and practices employed by 2010 Games organizers for ensuring cooperative relationships with First Nations groups and the lesons learned for future Olympic hosts. We wil also consider the implications of these policies and practices for broader provincial and industry eforts to incorporate Aboriginal participation within their projects.      3 Consideration of Aboriginal participation in past Olympics wil include a review of scholarly writings on those experiences, as wel as an examination of policy documents, jurisprudence, agrements or other legal material as relevant. Examination of such material wil alow 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 wil 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 refered to as consultation and acommodation; therefore, the examination of jurisprudence wil 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 addres Aboriginal participation within the implementation of their projects and objectives. This review of jurisprudence wil serve the purpose of seting out judicialy developed rules for asesing the quality of Aboriginal participation-consultation and acommodation. We wil also consider the underlying legal principles which may serve to guide and suggest particular approaches to incorporating Aboriginal participation into al social and economic projects whether private or public. Additionaly, scholarly writings on the legal doctrine surrounding Aboriginal participation wil be reviewed in order to consider contrasting legal interpretations- those which se 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 wil ofer diferent perspectives as to how Aboriginal consultation and acommodation may be meaningfully caried out, and suggest structures for Aboriginal participation which met Aboriginal, Crown, and project proponent needs.  With the historical and legal contexts firmly in place, our examination may finaly turn to the nature and content of the consultation and participation of Aboriginal peoples in the context of the 2010 Games. This examination wil rely upon primary documents from the City of Vancouver, Provincial and Federal Ministries, the Vancouver/Whistler Organizing Commite (“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 Commite (the “IOC”). The 2010 Games have not been subject to much scholarly review to date; however, thesis work which has caried out interviews with those involved in Aboriginal participation in the 2010 Games wil also be considered, and any further scholarly writing which becomes available. This review il explore the proceses by which Aboriginal participation was pursued by the parties involved, the dificulties which they encountered, the solutions which were crafted to overcome such isues, and the outcomes which Aboriginal participation achieved. Indeed, this examination wil sek to more closely consider the proceses that governed the extent of Aboriginal participation in the 2010 Games. Close atention wil 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 lesons 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 dresed 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 Freman, an indigenous athlete, became a national hero as a result of her athletic performance and a symbol of Aboriginal succes in Australia.4 Regardles, 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 Se Janice Forsyth, “Tepes 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. Procedings of the Sixth International Symposium for Olympic Research, 202 at 71-76. Se also G. Morgan, “Aboriginal Protest and the Sydney Olympic Games” Olympika: The International Journal of Olympic Studies Vol. XI 203, 23-38. 3 Ibid. 4 C. Elder, A. Prat, & C. Elis, “Runing Race: Reconciliation, Nationalism and the Sydney 200 Olympic Games” (206), International Review for the Sociology of Sport 41:2 181–20.      6 peoples. 5  While these historical perspectives indicate the Olympics hold litle potential to create meaningful progres in Aboriginal relations, it sems 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 maters, and left outside of larger planning and development initiatives.  While consultation regarding cultural maters is significant in terms of ensuring that Aboriginal culture is acurately 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 isues have more ramifications for the future of Aboriginal peoples, and these topics also spark the greatest debate betwen Aboriginal peoples, the Crown and larger society. Though the Olympics may provide an opportunity to engage in discussion with regards to many of these isues, such opportunities have not been acted upon in previous Olympic Games. Therefore, it is unclear whether more substantive participation in the Olympics wil result in lasting, positive, transformative changes for Aboriginal peoples; however, it does sem 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 Surounding Aboriginal Relations: Jurisprudence and Policy  While a historic review of the Olympics reveals that hosting the Games is not guaranted to improved circumstances for Aboriginal peoples and relationships betwen Aboriginals and government, an examination of recent jurisprudence and policy eforts in Canada would sem 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 plaintifs seking to enforce and protect their constitutionaly protected Aboriginal rights.6  Section 35(1) of the Constitution Act, 19827 (“s.35 (1)”) has provided the legal means for Aboriginal people to asert and protect their rights. While the judiciary has provided legal interpretation which has protected not only rights asociated 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 proceses which may afect Aboriginal rights.9 Judicial recognition of overarching concepts such as reconciliation and the honour of the Crown provide principled guidance for Crown eforts in addresing Aboriginal concerns.10 The recognition of a Crown duty to consult and acommodate Aboriginal peoples when it contemplates action which may negatively afect Aboriginal rights or title establishes a legal framework for asesing the Crown’s                                                 6 S. Lawrence & P. Macklem, “From Consultation to Reconciliation: Aboriginal Rights and the Crown’s Duty to Consult” (200) 79 Can. Bar Rev. 252 at 254-5. 7 The Constitution Act, 1982 Schedule B to the Canada Act 1982, (U.K.) 1982, c. 1 [The Constitution Act, 1982]. 8 Se R. v. Gladstone, [196] 2 S.C.R. 723, 137 D.L.R. (4th) 385 (S.C.C.) [Gladstone]. Se also R. v. Adams, [196] 3 S.C.R. 10, 138 D.L.R. (4th) 657 (S.C.C.) [Adams]. Se also R v. Marshal, [199] 3 S.C.R. 456, 179 D.L.R. (4th) 193 (S.C.C.) [Marshal].  9 Se Haida Nation v. British Columbia (inister of Forests), 204 SC 73, [204] 3 S.C.R. 51 [Haida Nation]. Se also Mikisew Cre First Nation v. Canada (Minister of Canadian Heritage), 205 SC 69 [205] 3 S.C.R. 38. 10 Shin Imai, “Sound Science, Careful Policy Analysis, and Ongoing Relationships: Integrating Litigation and Negotiation in Aboriginal Lands and Resources Disputes” (203) 41 Osgode Hal L.J. 587.     8 administrative approach to consideration and acommodation 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.1  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 asesing the Crown’s duty to consult and acommodate Aboriginal peoples that the judicial approach esentialy creates parameters for Crown action, but does not ensure Aboriginal peoples wil have the involvement they desire in development proceses.13 The judicial approach emphasizes the role of the judiciary as asesing the reasonablenes of the Crown’s eforts 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 proceses. The Province’s                                                 1 J.E. Dalton, “Aboriginal Self-Determination in Canada: Protections Aforded by the Judiciary and Government” (206) 21:1 C.J.L.S.1. 12 Se Taiaiake Alfred, Peace, Power and Righteousnes: An Indigenous Manifesto (Toronto: Oxford University Pres Canada, 199) Se also Glen Coulthard, “Beyond Recognition: Indigenous Self-Determination as Prefigurative Practice” in Leane Simpson ed, Lighting the Eight Fire (Winipeg: Arbeiter Ring Publishing, 208).  13 Se e.g. Haida Nation supra note 9 at para. 42 “However, there is no duty to agre; rather, the comitment is to a meaningful proces of consultation.”     9 articulation of this commitment in the New Relationship Discussion Paper14 indicated the Provincial Government’s commitment to expresing greater respect for Aboriginal concerns, and focusing on collaboration and consensus in consultation eforts. However, since the release of The New Relationship, litigation and dispute betwen 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 acommodate Aboriginal peoples lies solely with the Crown, the emphasis is often on the private sector to cary out the substantive procedural steps to ensure appropriate consultation and acommodation of Aboriginal peoples.16 Though this emphasis may sem eficient and practical given that the private sector wil be in direct control of a project, it also would sem to ensure that collaborative approaches amongst al the parties are rendered improbable.  The chalenges and dificulties in determining an appropriate approach to addresing 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 afirm Aboriginal                                                 14 British Columbia, Minister of Aboriginal Relations and Reconciliation, The New Relationship, (British Columbia: online: The New Relationship <htp:/ww.newrelationship.gov.bc.ca/shared/downloads/new_relationship.pdf>, 205) [The New Relationship].  15 Se e.g. Klahose First Nation v. Sunshine Coast Forest District (District Manager), 208 BCSC 1642, [209] 1 C.N.L.R. 10 [Klahose].  16 Se e.g. British Columbia, Environmental Asesment Ofice, Environmental Asesment Ofice Users Guide, (British Columbia: online: Environmental Asesment Ofice <htp:/ww.eao.gov.bc.ca/pub/pdf/EAO_User_Guide_209.pdf>, 209) at 7, “The EAO provides a limited amount of funding to asist First Nations to participate in the review proces…The EAO encourages proponents to provide First Nations with aditional capacity funding to participate in other aspects of the environmental asesment, 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 proceses in British Columbia.17 The reaction to this proposed Recognition and Reconciliation Act has been divergent and largely negative. Commentary from the private sector expresed concern that the Recognition and Reconciliation Act could create uncertainty in decision making proceses by giving Aboriginal groups an ability to veto projects, and failing to addres the coordination of consultation eforts 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 proceses, 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 afecting them remains fraught with conflict and hurdles. Diferent 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 sek improvement is more contentious. The judiciary has consistently indicated that reaching reconciliation requires the eforts of Crown and Aboriginal participants to negotiate mutualy aceptable outcomes. However, the means by which such mutualy aceptable outcomes may be                                                 17 British Columbia, Ministry of Aboriginal Relations and Reconciliation, Discusion Paper on Instructions for Implementing the New Relationship (British Columbia: online: Minister of Aboriginal Relations and Reconciliation <htp:/ww.gov.bc.ca/ar/atachments/implementing_the_new_relationship_0309.pdf>, 209) [“Discusion Paper on New Relationship”].  18 Tom Isac. & Keith Clark, “Legal Observations Concerning the Discusion Paper on Instructions for the Implementation of the New Relationship”, Legislative Coment on Discusion Paper on New Relationship ibid. online: John Cumins M.P. Delta-Richmond East <htp:/ww.johncumins.ca/docs/>. 19 Wodward and Co., “Aboriginal Rights Lawyers Respond to Proposed Recognition Legislation” Legislative Coment on Discusion Paper on New Relationship ibid. online: Wodward and Co. News Archives htp:/ww.odwardandcompany.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 betwen the Crown, private sector and these Aboriginal groups in a positive, cooperative direction. The parties involved have espoused the importance of developing partnerships betwen them in asociation with hosting the 2010 Games and stresed 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 wel as more formal legislative eforts aimed at defining Aboriginal rights and co-management roles, and the perceived benefits and chalenges of co-venturing with Aboriginal groups. Examining the proceses 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 Dun, “Aboriginal Partnerships for Sustainable 2010 Olympics and Paralympic Winter Games: A Framework for Coperation” (M.R.M. Thesis, Simon Fraser University Schol of Resource and Environmental Management, 207) online: Simon Fraser University Institutional Repository <htp:/libir.lib.sfu.ca/bitstream/1892/9245/1/etd2940.pdf> at 104-09.      12 certainly important, the research wil demonstrate that the following elements are those which set the substantive structure of Aboriginal participation: i. early inclusion of Aboriginal participation in bid proces; i. coordination of eforts betwen Squamish and Lil’wat Nations through protocol agrement; ii. creation of Shared Legacies Agrement betwen Squamish and Lil’wat Nations, and the Vancouver Bid Corporation, and Provincial Government; iv. execution of a memorandum of understanding betwen the Musqueam and Lil’wat Nations and Vancouver Bid Corporation; v. creation of Four Host First Nations Society and Secretariat, coordinating the eforts betwen Squamish, Lil’wat, Musqueam and Tsleil-Waututh Nations; vi. creation of protocol agrement betwen the FHFN and VANOC; vii. creation of legacies protocol betwen the FHFN and Legacies Now; and vii. creation of Olympic Legacies Agrement betwen 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 isues faced by Organizing Commites, 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 betwen 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 fe simple; provision of $18 milion CDN to the Musqueam and Tsleil-Waututh Nations for the purchase of lands to addres isues in reserve size; and the strengthening and building of relationships internaly amongst the FHFN and externaly with the private sector and Crown.  Although these benefits have made Aboriginal participation in the 2010 Games largely a succes, there have undoubtedly been a number of isues and chalenges which     13 the parties also had to addres. 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 agred 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 al 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. Additionaly, outside factors and agents such as “No 2010 Olympics on Stolen Native Land”21 and the Hudson’s Bay Company2 have created controversies which have coloured the public’s perception of Aboriginal participation in the 2010 Games, and posed serious chalenges to the relationships betwen VANOC, the FHFN, and the Crowns. However, these isues, although posing dificulties, may also be sen as areas of succes for the 2010 Games and Aboriginal participation. The FHFN have remained intact, coordinated, and succesful despite internal tensions; the trust displayed by the Musqueam and Tsleil-Waututh was ultimately wel-placed and rewarded, and external controversies have often been addresed by the FHFN to create positive resolutions.23                                                  21 No 2010 Olympics on Stolen Native Land, Native Resistance Threatens Olympic Ilusions, online: No 2010 Olympics on Stolen Native Land <htp:/no2010.com/node/936>. 2 Sandra McCuloch & Lindsey Kines, “Olympic sweaters just knock-ofs: Native artisans” The National Post (7 October 209), online: The National Post <htp:/ww.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 acros the country, she felt she had ben robed, ‘like they were taking something away from what was originaly Cowichan's.’ Cowichan Valey NDP MLA Bil Routley caled the decision a ‘tragedy.’ He said Campbel [Premier of British Columbia] talks about a new relationship with Aboriginal people and about providing them with economic oportunities. ‘Wel, this is one that's ben sadly mised…’”.  23 Se Rob Mikelburgh, “A $6 milion symbol of a native partnership that wil fuly enrich the Olympics” Globe and Mail (1 December 209) online: The Globe and Mail <htp:/ww.theglobeandmail.com/news/national/a-6-milion-symbol-of-a-native-partnership-that-wil-fuly-enrich-the-olympics/article139236/> “Mr. Joseph [CEO of the FHFN] recently lashed out at self-    14 The eforts of the FHFN, the Organizing Commites 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 richnes, and at least partialy addreses some isues 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 al elements of hosting. This far surpases previous Olympic eforts 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 atempting to articulate.  1.4  Implications for Olympic and Aboriginal Participation Context   Given the dynamic nature of Aboriginal participation in larger development and decision making proceses and the historic inability of the Olympic Games to ilustrate 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 "wariors" oposed to the Games, acusing them of wanting natives to ‘remain forever the dime-store Indian, the lone figure at the end of a gravel road, traped in the isolation of an iner-city nightmare.’ Chief Wiliams [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 teritory. No one has to tel us about stolen land. The point is what you create on the land.’” Se also Daphne Bramham, “Cowichan, HBC met over dispute [sic] Olympic sweaters” The Vancouver Sun (27 October 209) online: The Vancouver Sun htp:/ww.vancouversun.com/Cowichan+met+over+dispute+Olympic+sweaters/215202/story.html , “Tewane Joseph, chief executive of the Four Host First Nations, helped aranged Tuesday's meting after speaking to Hudson's Bay oficials in Toronto last wek.”      15 tenuous. However, if one considers the trend towards the Crown and the private sector focusing more directly on achieving meaningful Aboriginal participation, the chalenges in achieving such an objective, and the elements of Aboriginal participation in the context of the 2010 Games, it would sem 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 commites may become an expected approach, rather than mere consultation. Second, an increased focus on ensuring that Aboriginal peoples benefit from development which afects 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 acommodate Aboriginal concerns. The Olympics has ilustrated 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 se discussion and negotiation eforts fractured amongst the relevant parties may prove chalenging to overcome, and require a complete re-appraisal of the role each plays in the decision-making proceses. Fourth, the Olympics should provide a high profile example of the succes that co-management of projects can obtain through the inclusion of Aboriginal partners. It appears that one of the current isues vocalized by the private sector is concern that Aboriginal communities may frustrate project eforts rather than enhancing them. The Olympics would sem to provide a clear indication that this is not     16 necesarily the case, and that partnering with Aboriginal communities can be highly succesful, particularly when those communities share a common vision with their private sector and Crown partners. Fifth, and finaly, the experiences of the 2010 Games may indeed signal a concerted shift in level of acommodation that Aboriginal groups may receive in relation to development project. This may suggest that Aboriginal peoples face new chalenges and decisions within their comunities regarding the manner in which they wish to participate in project development, and may suggest that Aboriginal peoples wil face new presures 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 wil provide context from which to ases the 2010 Games. Additionaly, consideration of scholarly commentary on these past experiences may also reveal diferent perspectives and vantage points from which to ases Aboriginal participation, and in particular, highlight underlying isues in Aboriginal participation which are not be readily apparent during the flash and excitement of the Olympics. As wil be revealed below, the story of Aboriginal participation in the Olympics is storied; touched by succes, but perhaps marked more heavily by conflict and mised 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 efort on the part of Baron Piere 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 fitnes in countries such as                                                 24 The Olympic Museum, The Modern Olympic Games, online: International Olympic Comite: The Olympic Museum <htp:/multimedia.olympic.org/pdf/en_report_68.pdf>. 25 Kevin B. Wamsley, “The Global Sport Monopoly: A synopsis of 20th century Olympic politics” (202) 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 atention.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 equaly struck by the popularity of world’s fairs which routinely atracted milions of visitors, and the ability of such fairs to atract the public atention. A sporting event that could atract the same public atention 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 Commite, which was founded not only as a commite 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 Commite, 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 seks to create a way of life based on the joy found in efort, 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 intrinsicaly tied to succeses and failures outside of the sporting arena.  While the early games folowing Athens were asociated with world fairs in Paris, St. Louis and London, and did not atract significant public atention, 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 succesive 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 mared by the death of                                                 31 International Olympic Comite, Olympic Charter, Fundamental Principles of Olympism, online: International Olympic Comite <htp:/multimedia.olympic.org/pdf/en_report_12.pdf> at 1.  32 Arnd Kruger & Wiliam Muray, The Nazi Olympics: Sport, Politics, and Apeasement in the 1930s (Urbana: University of Ilinois Pres, 203)     20 Jewish athletes, kiled during the terorist atacks;3 and the Olympic Games of 1980 and 1984 saw boycotts caried 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 asociated with an event known as “Anthropology Days” in which: “…thre thousand indigenous men and women from al over the world who came to St. Louis to serve as demonstrators, educations, research subjects and entertainers…agred 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 Wiliam McGe, 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                                                 3 Richard Mandel, The Olympics of 1972: a Munich Diary (Chapel Hil: The University of North Carolina Publishing, 191). 34 Alen Gutman, “The Cold War and the Olympics” (198) 43 Int’l J. 54.  35 Nancy J. Parezo, “Chapter I A ‘Special Olympics’: Testing Racial Strength and Endurance at the 1904 Louisiana Purchase Exposition” in S. Brownel ed., The 1904 Anthropology Days and Olympic Games: Sport, Race, and American Imperialism, (Lincoln: University of Nebraska Pres, 208) at 59. 36 Ibid.     21 evolution” and to ilustrate that “…American athletes were the best in the world, superior to al other races and cultures.”37  McGe took charge of recruiting the indigenous participants, gathering them from pavilions throughout the fair, as wel 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 basebal 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 betwen 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 atended by a girls’ basketbal team from an Indian boarding school in Montana that had won the state’s first basketbal championship.42 The Native American girls atending the Model Indian School played exhibition basketbal games throughout the summer of the Louisiana Purchase Exposition, and following the defeat of the “Misouri Al-Stars, alumnae of                                                 37 Ibid. at 60.  38 Susan Brownel, “Introduction: Borides Before Boas, Sport before the Laughter Left” in S. Brownel ed. The 1904 Anthropology Days and Olympic Games: Sport, Race, and American Imperialism, (Lincoln: University of Nebraska Pres, 208) at 4.  39 Parezo, supra note 35 at 59.  40 Brownel, supra note 38. Se also Lew Carlson, “Giant Patagonians and Hairy Ainu: Anthropology Days at the 1904 St. Louis Olympics” (204) 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 Schol, Basketbal Champions of the 1904 World’s Fair” (207) 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 bal’ 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.”4 The succes of the Forts Shaw Indian School girl’s basketbal team ay 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 succes in basketbal mared by its asociation 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 asociated with the Louisiana Purchase Exposition, and have been a greater reflection of the St. Louis fair organizers than the Olympic Games themselves, the link betwen Anthropology Days, and the girls of the Fort Shaw Indian boarding school, and the Olympics is nevertheles present, and marks an obviously dark chapter in the asociation 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.  4 Brownel, supra note 38 at 48.  45 Mark Dyreson, “Olympic Games and Historical Imagination: Notes from the Fault Line of Tradition and odernity” in Barney R. et al. eds., Global and Cultural Critique: Problematizing the Olympic Games.     23 Sac and Fox Indian, was highlighted by the American pres as “proof that the United States had no racial bariers in athletics”.46 Though Thorpe may have been revered by the American Pres,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 profesional summer basebal leagues, which prompted the International Olympic Commite to strip Thorpe of his medals and records.48 Thorpe’s participation in the summer basebal 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 profesional 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 atention and adoration of the public and pres. 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 Pres 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, 198) 21 at 25.  46 Ibid.  47 Mark Rubinfeld, “The mythical Jim Thorpe: Re/presenting the twentieth century American Indian” (206) 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 pres made Tewanima a symbol of a supposedly race-blind society as the runner danced a Fourth-of-July jig for his teamates 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 pres transformed traditional symbols into vehicles for seling 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 atention of the public as did Thorpe and Tewanima. However, the Olympic Games were a rapidly changing event which increasingly caught the public’s atention 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 atention garnered by the event, and an increase in the pomp, circumstance and ceremony. As Olympic hosting requirements expanded in scope, so to did the eforts 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 Se Christine O’Bonsawin, “Construction of the Olympian First Sisters by the Canadian Pres” in Wamsley, Barney & Martyn supra note 2, 193 (O’Bonsawin examines the treatment of Canadian cros-country skiers Sharon and Shirley Firth of the Loucheaux-Métis Indians of the Northwest Teritories, and their participation in the 1972-1984 Winter Olympic Games).      25 systems in order to atract 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 wil reveal the succeses and failures of past Olympics, and may provide points of contrast from which to ases the eforts of Vancouver 2010. In addition to the specific involvement of Aboriginal peoples in these four Olympic Games, it is also necesary to consider a significant milestone in the history of the International Olympic Commite, 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 Sumer Olympic Games 1976    The Montreal Olympic Games in 1976 marked Canada’s first Olympic hosting experience, and provided the impetus for two exceptionaly diferent displays of Aboriginal culture in asociation 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 atract Olympic                                                 53 International Olympic Comite, Olympic Movement’s Agenda 21: Sport for sustainable development (online: International Olympic Comite Sport and Environment Comision <htp:/multimedia.olympic.org/pdf/en_report_30.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.5   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 originaly 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 commisioned by the Montreal Olympic organizing commite; and the event was sen as too expensive to fund.57 Unable to have their event officialy incorporated into Olympic cultural programing, the Kahnawake developed Indian Days independently and sought to atract 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 atract more visitors ranged from the lack of media atention, to the “unfriendly demeanor” of the Kahnawake to non-Aboriginal sight sers.59 Additionaly, Kahnawake community members expresed concern during Indian Days that their interactive cultural activities, intended to provide visitors with greater                                                 54 Forsyth, supra note 2 at 71.  5 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 atention and succes that the Kahnawake had hoped, the event was nevertheles 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 fel short of even this mark. Organizers of the 1976 closing ceremonies sought to depict Canada’s multicultural nature, and in furtherance of this efort, chose to incorporate Aboriginal cultural elements.61 The Montreal organizers: “…appropriated a multitude of popular Aboriginal images and aranged them in a vivid and dramatic display, compete with tepees, tom-toms, feathered headdreses, flags and buckskin outfits – al color-coordinated to match the five colors of the Olympic rings. For the final performance, the Aboriginal performers marched in arowhead formation as the entered and paraded around the track, erected five masive tepees in the centre of the stadium, dispensed feathered headbands and beaded necklaces to the athletes and spectators, danced and played the drums – al to the tune of the La Danse Sauvage.”62  Though this combination of symbolism and imagery asociated with Aboriginal cultures can be sen 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 Additionaly, 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 dresed to look Aboriginal.65 Closing ceremonies organizers provided the Aboriginal participants with only a single al-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.6 Since the Aboriginal participants would not have sufficient time to train for the show, the “…organizing commite hired a profesional Montreal dance troupe to train and practice for the show…non-Aboriginal performers dresed 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 agreing 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 “…aproximately 20 Aboriginal peoples from nine diferent First Nations participated in the celebration, having consented to share centre stage with aproximately 250 non-Aboriginal people dresed and painted to lok like Indians.” 65 Ibid. at 72.  6 Ibid.  67 Ibid.      29 Mohawk participation was a symbolic show of a much larger movement of Aboriginal cultural persistence in Canada…  Stil others saw the Ceremony as a unique diversion from their everyday lives. Here was an opportunity to take part in a masive celebration that would be broadcast worldwide and a rare chance to met 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 atempted to utilize the Olympics to beter 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 actualy 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 sems 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 dismised 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 sem a distant past, but they nevertheles                                                 68 Ibid. at 72.  69 Se Janice Forsyth & Kevin B. Wamsley, “‘Native to native…we’l recapture our spirits’: The world indigenous nations games and north American indigenous games as cultural resistance” (206) 23:2 The International Journal of the History of Sport 294 at 303 (describing J Wilton Litlechild’s, the person primarily responsible for the development of the North American Indigenous Games, reaction to seing the 1976 closing ceremonies: “To Litlechild, the cultural display at 1976 Olympic Games was an afront 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 asociated 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 Commite 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 198 Calgary Winter Olympic Games and Canadian Identity as Contested Terain” in M.C. Duncan, G. Chick, G. Edward & A. Aycock eds. Play & Culture Studies, Vol 1. (Grenwich: Ablex Publishing Corporation, 198) 191 at 202-4.  71 Julia D. Harison & Bruce Triger, “The spirit sings and the future of anthropology” (198) 4:6 Anthropology Today 6 at 6.  72 K.B. Wamsley & Mike Heine, “‘Don’t Mes with the Relay – It’s Bad Medicine’ Aboriginal Culture and the 198 inter Olympics” in Robert K. Barney et al. eds., Olympic Perspectives: Third International Symposium for Olympic Research (London ON: University of Western Ontario, 196) 173-178 at 173.      31 west…” the Mounties and the cowboy.73 Following the succes of Calgary’s bid, the organizing commite sought to incorporate greater expresions 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 dres “opening” the 1988 Games by entering the opening ceremony venue.74 Additionaly, 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 atack and wagon-burning should be incorporated into the opening ceremonies.76 This suggestion was generaly met with criticism, and (thankfully) was not folowed for the actual opening ceremonies.7  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, atempt at incorporating Aboriginal culture into the 1988 Games. Julia D. Harison, 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.  7 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 Shel 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 Cre 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 setlement rights and reserve land provided under these agrements.80 The Lubicon Cre had begun caling 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 atract atention to the destructive efect which development of the oil sands was having on the Lubicon’s largely traditional hunting and substance economy.81 Shel 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 specificaly 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 Harison & Triger, 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 leter writing campaign, to combat the Lubicon boycott.85  Acording to Harison, the Glenbow Museum sought to include Aboriginal individuals and organizations in a Liaison Commite 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 Commite drew its membership from some local bands, larger Aboriginal organizations, and government departments that had an Aboriginal component to their objectives and eforts.87 The Commite suggested that the Glenbow Museum sek to met directly with local bands, but an inability to “find mutualy agreable meting times” rendered such atempts unsuccesful.8 However, Glenbow representatives were able to met directly with the Lubicon which, acording to Harison, revealed that the Lubicon had “no objection to the content of the exhibition but only to its sponsorship and asociation 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 cal for support was answered by a number of Aboriginal organizations. The Asembly of First Nations, the World Congres of Indigenous People, the National Congres of American Indians, the Indian Asociation of Alberta and other Aboriginal organizations endorsed the boycott,                                                 84 Harison & Triger, supra note 71 at 7.  85 Wamsley & Heine, supra note 72 at 174.  86 Harison & Triger, supra note 71 at 6. 87 Ibid. at 6-7.  8 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 al Aboriginal groups were swayed by the Lubicon protests, most notably, many of the Treaty 7 bands in Alberta who continued to sek 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 Commite, 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 eforts of the Calgary Organizing Commite 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 succes, with the exhibition atracting 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 cordinator 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 atention to broader isues 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 isue, 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 nevertheles 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 proces, the Calgary Games eforts at Aboriginal involvement had the appearance of placating Aboriginal disent rather than achieving meaningful involvement. While it sems apparent that Aboriginal participation in the Calgary Games was far more positive than in Montreal, a similar isue is raised, namely, that Aboriginal peoples were stil unable to more directly influence the manner in which they could participate in the Olympic Games. Only minor atempts 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 Harison’s asesment of the Glenbow’s atempts to met with local Aboriginal leaders, “…clearly,                                                 98 Ibid at 173.      36 more is involved than finding mutualy agreable meting times.”9 The Calgary Games may have marked a vast improvement in incorporating Aboriginal participation when compared to Montreal. However, the Calgary Games’ eforts were stil plagued with contentious isues; most significantly, the structure of Aboriginal participation was stil manufactured through organizing commite 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 diferent subject. The Albertvile Games of 1992 saw the development of Olympic venues in a fashion which caused significant environmental concerns,10 and the resulting outcry garnered significant public atention 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 Lilehamer Winter Olympics in 1994 saw their organizing commite join with environmental non-governmental organizations to develop alternative venue plans and                                                 9 Harison & Triger, supra note 71 at 10.  10 Jean-Loup Chapelet, “Olympic Environmental Concerns as a Legacy of the Winter Games” (208) 25:14 The International Journal of the History of Sport 184 at 1891-2.  101 Ibid.  102 Ibid. at 1892-3.      37 considerations to addres any environmental isues.103 The eforts of Lilehamer and Sydney pushed the environment even further to the fore of the Olympic Agenda, and in 1994 the International Olympic Commite adopted the environment as the third pilar of Olympism,104 and in 1995 the creation of the Sport and Environment Commision to overse the inclusion of the environmental pilar in the Olympic movement.105 Subsequently, the Commision 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 Commision adopted Agenda 21.106  The International Olympic Commite’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 addreses thre broad subjects: strengthening socio-economic conditions, conservation and management of resources for sustainable development, and strengthening the role of major groups.107 Within the later subject, Agenda 21 specificaly highlights indigenous populations as being one of the major groups whose participation within the Olympic movement should be strengthened.108 More specificaly, 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 specificaly that indigenous sporting traditions and indigenous aces to sports participation be encouraged, both of which are logical inclusions for an Olympic document.10 More notably, Agenda 21 also cals for the Olympic movement to “contribute to the use of [indigenous] traditional knowledge and know-how in maters of environmental management in order to take appropriate action, notably in the regions where these populations originate.”11 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 wil be discussed below, were scheduled to occur only one year following the adoption of Agenda 21, while the Salt Lake City Games were only thre 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 wil be sen, 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 sems 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.                                                 10 Ibid.  11 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 chalenging 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.12 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 internationaly acepted guidelines altered the manner in which the International Olympic Commite’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 stil in its infancy within the Olympic movement, and its impact on host cities, regions or countries has yet to be sen. 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.                                                  12 Se e.g. David Vogel, The Market for Virtue: The Potential and Limits of Corporate Social Responsibility (Washington D.C.: Brokings Institution Pres, 205) (Chapter 1 where Vogel discuses the revival of corporate social responsibility).      40 2.6  Sydney Sumer 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 wel under way by the time Agenda 21 was adopted by the Sport and Environment Commision. Yet Sydney, much like Calgary, had sought to incorporate Aboriginal participation within its bid proces, similarly using Aboriginal dancers within its bid presentations,13 but also taking more direct steps to include prominent Aboriginal athletes within the bid,14 and incorporate more direct statements and promises of Aboriginal cultural inclusion within the Sydney cultural Olympiad.15 Indeed, Sydney’s Olympic bid emphasized that Aboriginal communities fully supported the bid.16 In total, Sydney’s eforts served to “…aligning the nation ideologicaly, socialy and politicaly with [the] philosophy of the Olympic movement.”17 Following the succes of the Sydney bid for the 2000 Games, the Sydney Organizing Commite was then charged with atempting to deliver on the promises of Aboriginal inclusion, and indeed the Sydney organizers incorporated far more significant Aboriginal participation than had been previously sen 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 isue of Aboriginal guidance and control over cultural representations was                                                 13 John Nauright, “Global games: culture, political economy and sport in the globalised world of the 21st century” (206) 25:7 Third World Quarterly 1325 at 1328.  14 Ibid. at 1329 “…Aboriginal tenis great Evone Golagong Cawley [was] used in Sydney’s formal presentation to the International Olympic Comite in 193.” 15 Ibid at 1329.  16 Ibid.  17 Michele Hana, “Reconciliation and Olympism: The Sydney 200 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, 199) 148.      41 more directly addresed. 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.18 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.”19  This cultural representation stands in stark contrast to The Spirit Sings exhibition in Calgary, which specificaly 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 Commite 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 Commite, 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                                                 18 Ibid. at 149.  19 Ibid. at 150.  120 Ibid. at 150 quoting the Sydney Organizing Comite’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.12  These approaches to the planning of indigenous cultural representations within the broader cultural programing of the Sydney Olympics ilustrated a significant advance from the Montreal and Calgary Games. The consultative model for Aboriginal participation  and involvement in the Sydney Games addresed a significant shortcoming in Calgary’s Aboriginal participation eforts, and obviously far surpased the atempts of Montreal. However, the Sydney Organizing Commite also developed a more direct approach to incorporating Aboriginal participation within the larger development of the Sydney Games. The Sydney Organizing Commite developed an Aboriginal and Tores Strait Islander Relations Unit to deal with Aboriginal communities, and recruited Gary Ela, a former prominent Aboriginal rugby player to act as its program anager.123 In addition, a National Indigenous Advisory Commite was created in 1998 in which a group of prominent Aboriginal Australians were asked to advise the Sydney organizers on maters 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 eforts with                                                 121 Tony Web, The Colaborative Games: The story behind the spectacle (Melbourne: Pluto Pres, 201) at 195.  12 Ibid.  123 Richard Cashman, The Biter-Swet Awakening: The Legacy of the Sydney 200 Olympic Games (Sydney: Wala Wala Pres 200) at 23.  124 Nauright, supra note 13.      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 narated.126 Though each of these pursuits served to indicate the improved role of Aboriginal peoples in the participation of the Sydney Olympics, the eforts were described by some as failing to acomplish 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 Freman, 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 Freman, 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 Freman was an athlete whose identity had been previously asociated 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, 200) at 9-10.  126 George Morgan, “Aboriginal Protest and the Sydney Olympic Games” (203) 12 Olympika: The International Journal of Olympic Studies 23 at 28.  127 Nauright, supra note 13 at 1329.  128 Graham Knight et al., “The Weight of Expectation: Cathy Freman, Legacy, Reconciliation and the Sydney Olympics – A Canadian Perspective” (207) 24:10 The International Journal of the History of Sport 1243 at 124.      44 Games held in Victoria, Canada initialy carying only an Aboriginal flag.129 This demonstration caused a stir in Australia and “…cemented Freman’s identification with the Aboriginal cause in political as wel as cultural terms.”130 It was in this context that Freman became the focus of the public and media, and her participation in the Sydney Olympics became intrinsicaly lined with the broader proces of reconciliation in Australia.131 Freman’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; Freman became the centre of the opening ceremonies which was “…filed with the imagery of reconciliation.”132 If Freman’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. Imediately folowing her victory Freman’s sponsor Nike instaled advertisements throughout Sydney bearing the slogan ‘Change the world 400 meters at a time’13 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 Freman’s participation in the Olympic Games sem remarkably similar to those that were atached to Jim Thorpe some eighty years earlier, and indeed many commentators viewed the linkage of reconciliation to the Sydney Games to be as equaly problematic as                                                 129 Ibid.  130 Ibid.  131 Catriona Elder, Angela Prat & Cathy Elis, “Runing Race: Reconciliation, Nationalism and the Sydney 200 Olympic Games” (206) 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 dres and body paint walking hand in hand with a “curly haired, freckled faced, al-Australian girl”, the incorporation of Aboriginal creation scenes, and display of Aboriginal flag and symbols. 13 Elder et al., supra note 131 at 181 134 Ibid. at 182.     45 the American Pres’ interpretation of Thorpe’s Stockholm Games participation as a signal of the United States colour blindnes in the field of sport.135 A second subject which garnered much public and media atention 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 isues 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 actualy constituted reconciliation, or merely a wel crafted efort 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 succes of the Sydney bid.136 Following Sydney’s succes at the bid stage, several Aboriginal activists expresed 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 wel know Aboriginal leader Charles Perkins stating “‘We are teling al the British people, please, don’t come over. If you want to se burning cars and burning buildings, then come over.                                                 135 Se e.g. Morgan, supra note 126 at 3-35 where he discuses the depiction of Cathy Freman as a symbol of reconciliation and coments “By deploying the repertoire of symbolic Reconciliation, as expresed through the pageantry and symbolism of the Sydney Olympics, the state seks to evade the responsibility to adres the deper questions of colonial power.” 136 Ibid. at 25 “Even before the bid to stage the Games in Sydney was sucesful, Aboriginal leaders were declaring their intention to use the event to raise international awarenes of the plight of indigenous peoples. In October 191 the NSW Aboriginal Legal Service caled on the IOC to reject the Sydney bid for the Olympics on the grounds of Australia’s apaling treatment of its Aboriginal citizens.” 137 Ibid. at 26.      46 Enjoy yourself’”138 and other commentators predicting similarly violent clashes betwen Aboriginal protesters and the police.139 Indeed, a circle of Nyungah elders caled on athletes, and in particular Cathy Freman, to boycot 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 smal protests occurred just prior to and during the Sydney Olympics, but were “uneventful and atracted no media interest.”141 Indeed, the most prominent feature of Aboriginal protest was caried 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 caled 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 commite and eforts to incorporate Aboriginal participation as giving Aboriginal peoples reason to support the Games,14 to those who viewed the iconic participation of Cathy Freman as providing a reason for Aboriginal support,145 and alternatively, that the eforts of the Sydney organizing commite had simply provided                                                 138 Ibid.  139 Ibid. at 27.  140 Ibid.  141 Cashman, supra note 123 at 21. 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.  14 Cashman, supra note 123 at 22. 145 Ibid.      47 marginal participation and leveraged nationalist sentiment grounded in a love of sport to silence any Aboriginal disent or protest.146 Indeed a number of authors have acepted the later view that Aboriginal disent in relation to the Sydney Games was efectively silenced through the skilful eforts of Olympic organizers. As Morgan elaborates: “The Olympic organizing bodies skilfully 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 diferent perspectives on the eforts of the Sydney organizers in pursuing greater Aboriginal participation, and the meaningfulnes of their acomplishments. Yet even those with more positive views of Aboriginal participation semed to acept the notion that the Aboriginal participation was not truly capable of achieving the reconciliation described by the pres 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 acesible to a diverse global audience, could also convey social and political mesages which changed the way that people think.”148  Indeed, it would appear that the Sydney organizers encountered an isue which was also faced in Calgary, that the motivations behind their eforts were questioned because of the suspicion that they were merely atempting to placate Aboriginal protestors. Such suspicion and criticism ay be wel founded. A review of Sydney’s eforts reveals a                                                 146 Se Morgan, supra note 126 and Helen Lenskyj, The Best Olympics Ever? Social Impacts of Sydney 200, (202: University of New York Pres, Albany) at 67-107.  147 Morgan, ibid.  148 Cashman, supra note 123 at 25.      48 much greater efort at incorporating Aboriginal culture in a more relevant and culturaly 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 eforts in relation to the Games, this does not sem 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 sen as having greatly advanced from the eforts made in Montreal and Calgary, there remained similar dificulties and concerns that had appeared in previous Games. Indeed the elements of reconciliation much lauded by the media in relation to the Sydney Games fel short of creating any lasting efect. 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 proces, or fuller engagement with true Aboriginal life.149 There was even evidence of a backlash against Midnight Oil for their t-shirt protest caling for a national apology to Australia’s Aboriginal peoples.150 Indeed,                                                 149 Cashman, supra note 123 at 73.  150 Ibid. at 25.      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 efect such sweping change.  2.7  Salt Lake City Winter Olympics 2002   While the Sydney Games of 2000 marked a substantive improvement (although stil contentious) at incorporating Aboriginal participation within the Olympic Games, the Salt Lake City Winter Olympics in 2002 marked a regresion. 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 Commite, 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 litle evidence of any more substantive discussion during the organization of the Salt Lake City bid.  Following the succes of the Salt Lake City bid, the Director of the Utah Division of Indian Afairs, himself a member of the Ute tribe, was included in the Salt Lake City                                                 151 Rud, K., Prime Minister of Australia, (13 February 208) “Apology to Australia’s Indigenous Peoples” Spech presented at Australian House of Representatives, online: Prime Minister’s Ofice <htp:/ww.pm.gov.au/node/5952>. 152 Dyerson, supra note 46 at 3.  153 Ibid.      50 Organizing Commite.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.15 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 eforts to act as an appropriate representative of Native American interests.  This isue semed to be borne out when the Native American 2002 Foundation eforts at inclusion in the Salt Lake City’s planning proceses were ultimately rebuffed by “…Utah’s governor, Salt Lake’s mayor and the SLOC [Salt Lake City Olympic Organizing Commite].”157 This fractured approach to engaging the Salt Lake City organizers ultimately frustrated eforts 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 Afairs, “Forest S. Cuch Biography” online: Utah Division of Indian Afairs <htp:/indian.utah.gov/about_us/executivedirector.html>. 15 Lori Butars, “Tribes Encountering Snags in Planing Olympics Role” Salt Lake Tribune (19 November, 200) online: Salt Lake Tribune <htp:/ww.sltrib.com/>. 156 Ibid.  157 Dyerson, supra note 46 at 3. 158 Christine M. O’Bonsawin “‘No Olympics on stolen native land’: contesting Olympic naratives and aserting 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 acount, the Salt Lake City games can undoubtedly be viewed as a regresion from the level of Aboriginal participation achieved at the Sydney Games, and indeed, might even be viewed as faling short of the eforts put forth in Calgary fourten years prior. Notably, there semed to be litle 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. Additionaly, 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 succeded at participating substantively beyond the opening ceremonies. Though these dificulties 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 efectively negotiate and overcome the disinterest to secure greater participation. Though the Aboriginal participation achieved                                                 159 Frances Bula, “First Nations planing large presence at 2010 Games” The Vancouver Sun (23 May 207) online: Canada.com <htp:/ww.canada.com/vancouversun/news/story.html?id=121a41c5-c83-4cfb-912-6a9c0c16e0ad> “The Navajo Nation had a Discover Navajo Pavilion, the only oficial 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” (203) 27:2 Journal of Sport and Social Isues 10 at 17     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  Discusion    The above review indicates that the Olympics have a long asociation 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 atention, and are often sen as symbols of reconciliation and the possibility that racial bariers 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 ben 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 disent.   It would sem 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 materialy, educationaly 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 sen as not being particularly asociated with the isues 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 expresion 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 afairs 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 fel 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 addresed 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 diferent outcomes is unclear. However, it is apparent                                                 162 Cashman, supra note 123 at 23.      54 from the above review, that the Olympics do indeed have unique qualities which atract greater scrutiny of eforts at incorporating Aboriginal participation within Olympic eforts, and imports greater meaning to the succes and failures of those same eforts.   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 eforts have improved on the past, or suffered similar dificulties and isues that have previously occurred. Clearly the context surrounding each of the above Olympics is substantialy diferent 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 eforts may not be understood in their entirety, it is nevertheles helpful to consider these past eforts to help anchor our examination of Vancouver 2010. The following chapter is intended to provide further context and more substantive means from which to ases the Aboriginal participation in the 2010 Games. The chapter wil 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 wil acomplish two objectives. First, the jurisprudence wil outline the legal doctrine surrounding Aboriginal participation (refered to as consultation and acommodation 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 wil also reveal where eforts at     55 incorporating Aboriginal participation in non-Olympic contexts often goes astray, which wil alow for a further discussion of the implications that the 2010 Games may have for future eforts 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 ases the Vancouver 2010 Games, both through the comparison of Vancouver 2010 eforts 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, steming from Section 35(1), which guides the participation of Aboriginal peoples in the development projects which afect them. The legal doctrine surrounding Aboriginal consultation and acommodation (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 wil help to iluminate 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 wil 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 caried out efectively, and to the benefit of al parties     57 involved may be the most important legacy of the 2010 Games, if the lesons 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 atempted 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 ilustrate, the appropriate manner in which to structure such formal guidelines is far from setled.  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 acommodation 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 acommodation eforts, we may elucidate forms of Aboriginal participation, or consultation and acommodation, which further the purposes of Section 35(1). These principles and guidelines wil 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 wil alow for the consideration of whether Aboriginal participation in the 2010 Games adheres to these legal principles, and also, what lesons the 2010 Games may hold for future circumstances in which Aboriginal consultation and acommodation is required.  Therefore, the following chapter must acomplish 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 Se Chapter 1, above, at 1-4 for discusion of purposes of this thesis. Se also Chapter 1.2, above, introductory discusion of the legal context surounding Aboriginal participation.      58 Aboriginal participation. As wil be revealed below, judicial decisions surrounding the need for Aboriginal consultation and acommodation (again, the jurisprudential terms for Aboriginal participation) often stres the fact dependent nature of determining what scope of Aboriginal consultation and acommodation is required in specific circumstances. For example, there are significant diferences 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 wil be to more generaly understand how judicial interpretation of Section 35(1) describes positive instances of Aboriginal consultation and acommodation, and use these to examine the 2010 Games. Indeed, much of the participation of Aboriginal peoples in the 2010 Games fals outside the specific subject mater of Section 35(1) and the resulting jurisprudence, and would therefore be chalenging 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 lesons.  These general principles wil be obtained through the examination of SC decisions which describe the relationship betwen the Crown, project proponents and Aboriginal peoples, as wel as the purposes behind Section 35(1) and objectives of Aboriginal consultation and acomodation. The jurisprudence examined covers a wide range of circumstances, not al of which directly match those found in the 2010 Games context. However, this wider examination wil alow 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 canvas the jurisprudence to determine how Aboriginal participation currently proceds in other contexts, and to identify isues and bariers which tend to prevent more efective Aboriginal participation from occurring. While carying out the first objective wil provide the general principles which wil asist in determining whether Aboriginal participation in the 2010 Games is efective and laudable, or quite the opposite. This second objective wil provide a basis for understanding what the implications of the 2010 Games might be for broader eforts of Aboriginal participation in British Columbia in particular and throughout Canada. Indeed, as wil be apparent, review of lower court decisions applying the rulings of the SC to ongoing eforts of the Crown, project proponents and Aboriginal peoples ilustrates the dificulty these parties have in structuring efective Aboriginal consultation and acommodation. This review il serve to contrast the Aboriginal participation in the 2010 Games, and more clearly ilustrate the specific lesons to be learned from the Games.  As this chapter progreses, it is beneficial to consider the analogous roles of the various groups asociated with the 2010 Games with those addresed 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 recal 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 wil 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 acommodate Aboriginal people, and extrapolating the eforts of the 2010 Games organizers and Crown agents to larger constructs. Additionaly, it is important to recal that the terms of consultation and acommodation are the legal terms which expres 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 legaly mandated duties.  3.2  Section 35(1), Recognition, & Reconciliation  As noted above, the first task which this chapter must acomplish is to canvas relevant jurisprudence for the principles and guidelines surrounding Aboriginal participation in development projects and initiatives. This review il provide guidance with regards to the overarching purposes and objectives of requiring Aboriginal consultation and acommodation, and more specific guidance on the detailed administration of incorporating Aboriginal participation meaningfully and efectively into the initiatives which impact Aboriginal peoples. At the outset, it is esential 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 acommodation 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 diferentiated from other Section 35(1) jurisprudence which has addresed 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 acommodation) to achieve these objectives, and additional guidelines as to how such participation may be efectively caried out. Therefore, the jurisprudence review below is not intended to set out legal rules which wil be strictly applied to the 2010 Games, but rather, to iluminate broader guidance which can be used to ases the meaning of Aboriginal participation in this context.   As noted, jurisprudence under Section 35(1) addresing the consultation and acommodation 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 SC in its asesment of Crown infringements of Aboriginal rights and title protected under Section 35(1).   The SC first addresed 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]. Se R. v Guerin, [1984] 2 S.C.R. 35, 13 D.L.R. (4th) 321 (S.C.C.) [“Guerin”] in which the SC 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 SC determined that the Crown did inded 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 surendered the land to the Crown for lease on certain specified terms. The trial judge found as a fact that such a lease was imposible 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 comited a breach of trust…” 165 Se R. v Sparow, [190] 1 S.C.R. 1075, 70 D.L.R. (4th) 385 (“Sparow”) in which a Musqueam member, charged with breaching the Fisheries Act, R.S.C. 1970, c. F-14, chalenged the relevant provisions     62 R. v Van der Pet16, 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 constitutionaly protected rights and title.  The elaboration provided in Van der Pet, Gladstone, and Smokehouse offer principles upon which to structure Aboriginal participation, and in particular, suggest the potential need for diferent 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 addreses Aboriginal consultation and acommodation directly and most clearly articulates the purposes and objectives that Aboriginal participation should strive to atain.169   In each of Van der Pet, Gladstone, and Smokehouse, the SC addresed the ability of the Crown to impose regulations which infringed an aleged Aboriginal right; in this instance, the right to of the Aboriginal applicants to sel fish.170 In Van der Pet, the SC addresed the basis for the legal doctrine of Aboriginal rights, describing the overarching purpose behind Section 35(1): “More specificaly, 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 SC 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 110-1. 16 [196] 2 S.C.R. 507, 137 D.L.R. (4th) 385 (S.C.C.) [“Van der Pet”]. 167 [196] 2 S.C.R. 672, 137 D.L.R. (4th) 528 (S.C.C.) [“Smokehouse”]. 168 Gladstone, supra note 8.  169 Se Chapter 3.3 & 3.3.1, below, for discusion of this later jurisprudence.  170 Van der Pet, supra note 16 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 fal within the provision must be defined in light of this purpose; the Aboriginal rights recognized and afirmed 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 SC 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 asertion 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 SC stated more expresly that “the pursuit of economic and regional fairnes, 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 al Canadians and, more importantly, the reconciliation of Aboriginal societies with the rest of Canadian society may wel depend on their succesful atainment.”173 This more detailed articulation is also significant as it recognizes the need to balance Aboriginal and non-Aboriginal interests. Additionaly, the courts clearly diferentiate betwen the economic and regional fairnes objectives addresed in Van der                                                 171 Van der Pet, ibid. at para 31.  172 Gladstone, supra note 168 at para. 72.  173 Ibid. at para. 75.     64 Pet, Gladstone and Smokehouse, with the conservation objectives considered in Sparrow.174  This diferentiation is fundamental to examination of Aboriginal participation in the 2010 Games as it sems clear from these judicial comments that the appropriate manner through which the Crown might infringe Aboriginal rights and title for economic reasons, is diferent 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 diference betwen economic and conservation objectives is stil 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 diferently 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 wil face les scrutiny for the infringement of Aboriginal rights for conservation purposes, while Van der Pet and Gladstone suggest that where economic initiatives are at stake, the Crown wil be asked to have taken greater acount of Aboriginal interests.  Indeed, as wil 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 sek diferent forms of Aboriginal participation.175 It                                                 174 Sparow, supra note 165 at 113 “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 aplied in relation to objectives of economic and regional fairnes.  175 Se, below, at 68 – 72 for discusion of Aboriginal title and its implications for the maner in which Aboriginal peoples should participate in decision making proceses and development. Se also Chapter 3.2.1, below, at 72-76 for sumary of early jurisprudence and the maner in which it sugests that Aboriginal participation be pursued. Se also, Chapter 3.3.1, below, for further sumary interpreting this earlier jurisprudence in light of more recent decisions.      65 wil be with this judicial guidance that Aboriginal participation in the 2010 Games, and its broader implications, is considered in the folowing chapters.   Therefore, this jurisprudence review must give more direct consideration to the guidance which the judiciary has provided regarding “the right circumstances” which wil ensure that the pursuit of economic objectives (which generaly 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 efected. 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 sen 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 logicaly surmise that “the right circumstances” are those which ensure the advancement of recognition and reconciliation.  In Van der Pet, Lamer C.J. expresly 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 disent, 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 disent in Van der Pet supra note 16 para. 309 “‘In the right circumstances’…governments may abridge Aboriginal rights on the basis of an undetermined variety of considerations. While ‘acount’ must be taken of the native interest and the Crown’s fiduciary obligation, one is left uncertain as to what degre. At the broadest reach, whatever the government of the day dems necesary in order to reconcile Aboriginal and non-Aboriginal interests must pas muster. In narower incarnations, the result wil depend on doctrine yet to be determined. Upon chalenge in the courts, the focus wil predictably be on the social justifiability of the measure rather than the rights guaranted…This, with respect, fals short of the ‘solid constitutional base upon which subsequent negotiations can take place’ of which Dickson C.J. and La Forest J. wrote in Sparow, at p. 105”.     66 them in a way that provides the basis for a just and lasting setlement of Aboriginal claims consistent with the high standard which the law imposes on the Crown in its dealings with Aboriginal peoples.”17 Though in disent, McLachlin J’s comments regarding the importance of recognizing the Aboriginal legal regime as an important aspect of reconciliation would sem 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 wil se not only the incorporation of Aboriginal perspectives, but also that this incorporation seks 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 additionaly suggests that Aboriginal participation should be seking to addres not only the specific actions or decisions which are set to impact Aboriginal rights or title, but also broader isues of reconciliation. Although these comments are made in relation to a specific factual context in which Crown action wil infringe Aboriginal rights or title protected under Section 35(1), they are nevertheles 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 addresed by the                                                 17 Ibid. at para 230.  178 Se Kent McNeil, “How Can Infringements of the Constitutional Rights of Aboriginal Peoples Be Justified” (197) 8 Const. F. 3 at 36. Se also Garth Netheim, Gary D. Meyers & Dona Craig, Indigenous Peoples and Governance Structures, (Canbara: Aboriginal Studies Pres, 202) at 79 (folowing articles for scholarly comentary on Aboriginal self-government, and the ned for the incorporation of Aboriginal perspectives and governance in Government decision making proceses to properly efect recognition).        67 SC in Van der Pet or Gladstone, this judicial guidance provides meaningful contribution to determining what atributes laudable Aboriginal participation wil 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 SC provided some further guidance in additional cases considering the Crown’s eforts 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 SC 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 acommodation of Aboriginal peoples (as wil 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 Se e.g. Adams, supra note 8 & R. v. Côté, [196] 3 S.C.R. 139, 138 D.L.R. 4th 385 (S.C.C.) [“Côté”]. 180 Delgamukw v. B.C., [197] 3 S.C.R. 1010, [199] 10 W. .R. 34 (S.C.C.) [“Delgamukw”] 181 Se 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 hich is particularly central to obtaining guidance from Section 35(1) jurisprudence on how Aboriginal participation should be caried out is the SC’s elaboration of the very nature of Aboriginal title. Lamer C.J., again writing for the majority, described as follows: “…Thre aspects of Aboriginal title are relevant here. First, Aboriginal title encompases the right to exclusive use and occupation of the lands; second, Aboriginal title encompases 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 SC’s description of Aboriginal title is fundamental to conceptualizing the manner in which the guidance in Van der Pet and Gladstone suggested that Aboriginal perspectives must be incorporated in an efort to atain greater reconciliation and lasting setlement. Though Aboriginal title may not have been at risk specificaly 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. 16.      69 The SC 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 proces by which it alocated the resource and the actual alocation of the resource which results from that proces reflect the prior interest’ of the holders of Aboriginal title in the land. By analogy with Gladstone, this might entail, for example, that governments acommodate the participation of Aboriginal peoples in the development of the resources of British Columbia, and that the conferal of fe simples for agriculture, and of leases and licences for forestry and mining reflect the prior occupation of the Aboriginal title lands, that economic bariers to Aboriginal uses of their lands (e.g., licensing fes) 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 betwen Aboriginal peoples and the Crown in order to determine how Aboriginal priorities for title lands may be afected, and indeed given priority. Secondly, it implies that if the Crown seks 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 sem to suggest that meaningful Aboriginal participation should sek to                                                 183 Ibid. at para. 167.      70 identify and give priority to Aboriginal interests, and that special efort 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 acommodated”.185 This commentary is also notable, not only for its expres 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 acommodated. 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 sems 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 SC’s discussion of how Aboriginal interests in land are to be appropriately acommodated through prioritizing and compensation, the SC 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 proceses of the Crown: Lamer C.J. elaborated: “…Aboriginal title encompases 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 betwen 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 wil vary with the circumstances. In occasional cases, when the breach is les serious or relatively minor, it wil be no more than a duty to discuss important decisions that wil be taken with respect to lands held pursuant to Aboriginal title. Of course, even in these rare cases when the minimum aceptable standard is consultation, this consultation must be in good faith, and with the intention of substantialy addresing the concerns of the Aboriginal peoples whose lands are at isue. In most cases, it wil 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 ofers two fundamental pieces of guidance. First, is the expres 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 asociated 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 necesary means through which the decision making rights asociated with Aboriginal title could be properly recognized. The concept that                                                 186 Delgamukw, supra note 180 at para. 168.     72 Aboriginal title invokes an asociated 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 acomplish 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 overal objectives of Section 35(1). Lamer C.J noted the importance of consultations proceding in good faith, and stresed the importance of pursuing negotiated setlement to the purpose of reconciliation.187 Once again, this guidance combines to suggest that meaningful Aboriginal participation proceds 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 Discusion 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 setlements, with god faith and give and take on al sides, reinforced by the judgments of this Court, that we wil 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 asesed, but also their implications for the development of more formal structures for pursuing the consultation and acommodation 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 eforts at consultation, acommodation and achieving recognition and reconciliation.  A review of the above jurisprudence reveals the key elements which should guide consultation and acommodation eforts.  Courts have held that the primary purpose of Section 35(1) is the recognition and reconciliation of prior Aboriginal occupation with the asertion of Crown sovereignty. Indeed, the judiciary consistently indicates that these broader purposes of Section 35(1) should be pursued throughout al Crown interactions with Aboriginal peoples. This suggests that meaningful Aboriginal participation wil sek to addres not only the circumstances which specificaly impact constitutionaly 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 SC indicated in Van der Pet and Gladstone that the Crown should sek to prioritize Aboriginal rights and title in its alocation of resources amongst Aboriginal and non-Aboriginal interests. This suggests that positive Aboriginal participation wil demonstrate the prioritization of such Aboriginal interests. In Delgamuukw the SC 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, wil result not only in the prioritization of Aboriginal interests in maintaining aces to lands and resources necesary 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 necesary to alow the Crown to understand Aboriginal interests, and therefore properly acommodate, 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 wil se 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 caried out in good faith, with the clear intention of addresing Aboriginal interests and concerns, and with the concept that negotiated setlement is the prefered 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 met 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 addreses 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 iluminate 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 mets the guidelines espoused by the judiciary above, and can be considered to have furthered the overal objectives of Section 35(1), or alternatively has falen short of the same principles and standards. Therefore, the above guidance, although not applicable to the 2010 Games in a legaly binding sense, wil nevertheles aid us in our examination of Aboriginal participation in the 2010 Games.   Before delving into the seminal cases on Aboriginal consultation and acommodation, it is perhaps worth noting that within the 2010 Games context it may be notable that the reasons for judgment in Delgamuukw ere released on December 11,     76 1997, just 4 days prior to a pres conference held by Arthur Grifiths18 and Tourism Vancouver officials discussing the potential of bringing the 2010 Games to Vancouver.189 Though it is uncertain how this ruling may have imediately influenced the organizers behind Vancouver’s plans to host the 2010 Games, Delgamuukw drew substantial media atention 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 necesity of Aboriginal participation. 3.3  Consultation, Acommodation and Unproven Rights   While the above jurisprudence marked the SC’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 Asesment Director)191 and Mikisew Cre First Nation v. Canada (Minister of Canadian Heritage)192 the SC would consider more directly the concept of consultation, the principles on which consultation                                                 18 Arthur Grifiths is the former owner of the Vancouver Canucks, a profesional hockey team playing in the National Hockey League, a prominent busines 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 209:2, (British Columbia: online Legislative Library of British Columbia <htp:/ww.lbc.leg.bc.ca/public/background/20902b_ olympicsupdate.pdf>, 209) [“Legislative Library Olympic Timeline”] at 2. 190 Haida Nation, supra note 9.  191 Taku River Tlingit First Nation v. British Columbia (Project Asesment Director), 204 SC 74, [204] 3 S.C.R. 50 (S.C.C.) [Taku Tlingit]. 192 Mikisew Cre First Nation v. Canada (Minister of Canadian Heritage 205 SC 69 [Mikisew Cre].      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 Cre wil provide rules and principles which can be sen 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 sek broader judicial guidance on what elements comprise meaningful or positive Aboriginal participation. By canvasing 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 ases Aboriginal participation in the 2010 Games. However, the review below wil also highlight the more strict rules of Aboriginal consultation and acommodation, as a greater understanding of this legal doctrine wil 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 SC 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 atention at the British Columbia Court of Appeal (the “BCA”) in 2002, with the BCA 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), 202 BCA 157, [202] 6 W. .R. 243, with suplementary reasons 202 BCA 462, 5 B.C.L.R. (4th) 3, af’d in part, rev’d in part Haida Nation v. British Columbia (Minister of Forests), 204, SC 73, [204] 3 S.C.R. 51.      78 BCA rulings wil 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 Cre was released in 2005, and is particularly important in elucidating judicial guidance, as it currently marks the only elaboration from the SC on the emerging doctrine of Aboriginal consultation and acommodation. In Haida Nation, and Taku Tlingit the courts were asked to ases 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 SC recognized the need for consultation and acommodation of Aboriginal peoples, even where rights and title were unproven. McLachlin C.J. in Haida Nation recognized that such consultation was indeed necesary to ensure the protection offered by Section 35(1) is not rendered irelevant prior to negotiated setlement: “…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 ocupation of the land with the reality of Crown sovereignty. Is the Crown, under the aegis of its aserted sovereignty, entitled to use the resources at isue 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 afecting these interests are being seriously pursued in the proces 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 acommodate Aboriginal interests pending resolution of the claim. To unilateraly exploit a claimed resource during the proces of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or al of the benefit of the resource. That is not honourable.”195 This recognition for a need to consult and acommodate 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 proceses was in store, and indeed, this expansion of the concept of consultation and acomodation is the primary reason (as wil be made apparent below)196 that Aboriginal participation in the 2010 Games may hold greater significance. This significance, as wil be revealed, is two-fold. First, we wil se from our examination of lower court jurisprudence that the Crown is struggling to appropriately respond to its duties to consult and acommodate, which clearly indicates that improved methods for efective and meaningful Aboriginal participation is required. Second, it wil be evident that this legal doctrine was emerging as the 2010 Games developed, and this certainly influenced the parties in their eforts to structure Aboriginal participation.  While the expansion of the need for consultation and acommodation was of obvious significance, of equal importance was the further discussion of the principles underlying Section 35(1) necesitating Aboriginal consultation and acommodation. Particularly notable was the afirmation that consultation and acommodation in relation                                                 195 Ibid. at paras. 26-27.  196 Se 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; aditionaly, the implications of these decisions and their place within the examination of the 2010 Games is discused.      80 to unproven rights and title must also be tied to broader proceses of recognition and reconciliation mandated by Section 35(1). Indeed, the SC expresed clearly that the reconciliation mandated by Section 35(1) is “…not a final legal remedy in the usual sense…[r]ather it is a proces…” and that consultation and acommodation is similarly “…part of a proces of fair dealing and reconciliation that begins with the asertion of sovereignty and continues beyond formal claims resolution…”197.  These statements from the SC clearly indicate that meaningful Aboriginal participation should further broader eforts at recognition and reconciliation. It sems apparent that consultation and acommodation 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 acommodation to such broader eforts reveals the importance of early jurisprudence such as Van der Pet 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 efected during the proces of consultation and acommodation.  For example, though prioritization of Aboriginal interests was not expresly mandated in Haida Nation or Taku Tlingit as it was in Van der Pet, or Delgamuukw, the connection of consultation and acommodation to broader recognition and reconciliation eforts suggests that discussions of prioritization of Aboriginal interests and facilitation of                                                 197 Ibid. at paras. 32-3.  198 Ibid. “To limit reconciliation to the post-prof sphere risks treating reconciliation as a distant legalistic goal, devoid of the ‘meaningful content’ mandated by the ‘solemn comitment’ made by the Crown in recognizing and afirming Aboriginal rights and title…It also risks unfortunate consequences.  When the distant goal of prof is finaly 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 unilateraly, and in a manner that wil efectively remove the ability of Aboriginal peoples to benefit from their resources once resolution to Aboriginal claims is finaly atained.19 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 proceses of recognition and reconciliation by determining how Aboriginal interests may be prioritized in relation to a specific objective or project through the proceses of consultation and acommodation. In this manner, the duty to consult and acommodate 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 ocur through broader negotiated setlement. In addition to afirming and expanding upon the need to tie specific instances of Aboriginal consultation and acommodation to broader recognition and reconciliation proceses, Haida Nation and Taku Tlingit also elaborated on the nature of the relationship betwen Crown and Aboriginal peoples, and its implication for the manner in which consultation and acommodation should proced. 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 acommodation of Aboriginal                                                 19 Ibid.      82 peoples.20 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 setlement 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. Inded, 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 acommodation of Aboriginal peoples, provides further guidance as to the goals and manner in which meaningful Aboriginal participation is to be pursued. Indeed, it sems apparent that the SC in Haida Nation and Taku Tlingit largely afirmed the principles articulated in previous jurisprudence such as Van der Pet and Delgamuukw. Although this afirmation may sem redundant, this consistency in judicial guidance supports reliance on these principles in asesing the manner in which Aboriginal participation in the 2010 Games was caried 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 acommodation 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                                                 20 Taku Tlingit, supra note 191 at paras. 23-4 “The duty of honour derives from the Crown’s asertion of sovereignty in the face of prior Aboriginal ocupation. It has ben enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and afirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just setlement of Aboriginal claims. In al its dealings with Aboriginal peoples, the Crown must act honourably, in acordance with its historical and future relationship with the Aboriginal peoples in question. The Crown’s honour canot be interpreted narowly or technicaly, but must be given ful efect in order to promote the proces of reconciliation mandated by s. 35(1).” 201 Ibid. at para. 16.      83 which consultation and acommodation are intended to proced, 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 wil be discussed in greater detail below,202 this new doctrine clearly requires far more instances of, and more substantial, consultation and acommodation of Aboriginal peoples. This in turn drives an obvious necesity to improve the discourse and understanding of how such Aboriginal participation may be made more meaningful and efective.  In articulating an expanded need for the consultation and acommodation of Aboriginal peoples in Haida Nation and Taku Tlingit, the SC discussed what may best be described as the “administrative” guidelines describing when such consultation and acommodation is necesary, and the scope and form of these proceses that intended to solicit and addres Aboriginal perspectives. With regards to the isue of when the duty to consult and acommodate Aboriginal rises, the SC noted that the duty wil “…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 afect it”.203 The need for only constructive knowledge of a potential Aboriginal right, and possibility of adverse efects to that Aboriginal right clearly ensured that a broad range of Crown activities would be captured by the emerging doctrine of consultation and                                                 202 Se Chapter 3.3.1, below, for discusion of the implications of the duty to consult and acomodate in relation to earlier jurisprudence. Se also, Chapter 3.4 & 3.4.1, below, for discusion of lower court asesment of Crown eforts to consult and acomodate, which clearly reflect the ned for greater Aboriginal consultation and acomodation. 203 Ibid. at para. 35.      84 acommodation. However, the SC expresly 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 acommodate as “…proportionate to a preliminary asesment of the strength of the case supporting the existence of the right or title, and to the seriousnes of the potentialy adverse efect 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 SC held that “…it wil frequently be possible to reach an idea of the aserted rights and of their strength sufficient to trigger an obligation to consult and acommodate, short of final judicial determination or setlement.”206 Indeed, in light of the historic marginalization of Aboriginal peoples, and relegation of Aboriginal claims to rights and title, it sems obvious that the objectives of recognition and reconciliation must begin with the Crown demonstrating an understanding of Aboriginal claims.207 This suggests that carying out an asesment of an Aboriginal group’s claims in relation to the triggering of a duty to consult and acommodate is an important initial step in the recognition and reconciliation proces, as it may provide important opportunities to gain greater understanding of Aboriginal claims and perspectives which must be addresed in larger negotiated setlement. Indeed, the SC 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 “Dificulties asociated with the absence of prof and definition of claims are adresed by asigning apropriate 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 asesment of the strength of claim to rights or title is done, and the seriousnes of the potential adverse efect upon these claims is caried through, the proportionality of the scope and content of the consultation and acommodation 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 isues 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… Betwen these two extremes of the spectrum just described, wil lie other situations. Every case must be approached individualy. Each must also be approached flexibly, since the level of consultation required may change as the proces goes on and new information comes to light.”209  With consultation and acommodation requirements being so dependent on the particular nature and circumstances surrounding a project and efected 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 acommodation should be structured. Therefore, considering instances of Aboriginal participation, such as the 2010 Games context, may                                                 208 Ibid. at para. 43 quoting T. Isac and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (203), 41 Alta. L. Rev. 49, at 61. 209 Ibid. at paras. 43-45.      86 reveal important lesons 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 acommodation would vary substantialy with the circumstances, they nevertheles provided suggestions regarding the manner in which Aboriginal perspectives should be solicited and addresed. The SC described meaningful consultation as providing Aboriginal peoples the opportunity to make submisions to decision-makers, formal participation in decision-making proceses, adoption of dispute resolution procedures, and provision of writen reasons by decision makers. Inclusion of Aboriginal peoples in this manner would then ilustrate how Aboriginal perspectives were considered, which in turn ensured that consultation and acommodation could be made more efective.210 Similarly, the SC provided more explicit commentary on the purpose and forms for acommodating Aboriginal interests, noting that “meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations.”21 The SC elaborated that such acommodation requires “…taking steps to avoid ireparable harm or to minimize the efects of infringement, pending final resolution of the underlying claim”.212 Clarification on the appropriate means of consultation and acommodation was also provided in Mikisew Cre. In that ruling, the SC clarified that even at the lower end of the consultation and acommodation 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. 4.  21 Ibid. at para. 46.  212 Ibid. at para. 47.  213 Mikisew Cre, supra note 192 at para. 64.      87 that reliance on the general public consultation proces to met the Crown’s duty to consult and acommodation was inadequate.214 Rather, meaningful Aboriginal engagement under this judicial directive includes the provision of information specificaly regarding the project and its potential adverse impact on Mikisew interests, the direct solicitation of Mikisew perspectives and concerns, and a clear indication that atempts are made to minimize adverse impacts to Mikisew interests.215 Notably, the judiciary found that the Crown should not unilateraly impose an acommodation 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 Additionaly, the SC also noted that that “…there is some reciprocal onus on the Mikisew to cary their end of the consultation, to make their concerns known, to respond to the government’s atempt to their concerns and suggestions, and to try to reach some mutualy satisfactory solution.”217 .  Importantly, the SC articulated that the “common thread” guiding Crown eforts is to substantialy addres Aboriginal concerns, and to ensure the proces of consultation is meaningful. For Aboriginal peoples, the SC highlighted the reciprocal obligations of Aboriginal claimants to engage with the Crown, to not frustrate the Crown’s good faith atempts of consultation, and not adopt unreasonable positions to prevent the Crown from acting where meaningful consultation has occurred.218 Such guidance again reafirmed 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 setlement in instances of conflict remain the ideal solution within the context of reconciliation. Again, the judiciary emphasized the importance of atempting “…to harmonize conflicting interests and move further down the path of reconciliation…” through “…good faith eforts to understand each other’s concerns and moves to addres them.”219 While the SC clearly articulated both when the duty to consult and acommodate Aboriginal peoples arose, and provided guidance as to how the scope and nature of consultation and acommodation obligations should occur, they also had to answer the question of who ultimately owed the duty to Aboriginal peoples. The SC expresly limited the duty to consult and acommodate to the Crown alone because it “…flows from the Crown’s asumption of sovereignty…”20 It is important to note that the Crown’s responsibilities are triggered not only where the Crown is the primary agent carying 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 proceses, licensing, or funding).21  This restriction of the duty to consult and acommodate to the Crown left private actors without a similar legal obligation.22 However, the SC did note that the Crown may “delegate procedural aspects of consultation to industry proponents seking a                                                 219 Ibid. 20 Ibid. at para. 53. 21 Se e.g. Chapter 4.3.4, below, for discusion of initial Olympic planing which would have trigered Crown duties to consult and acomodate. Se especialy Chapter 4.4.1.1, below, at 161-64 where more detailed consideration of Federal and Provincial environmental asesment legislation, and the regulatory trigers created in response to Haida Nation to ensure Crown properly consults and acomodates Aboriginal peoples are discused.  22 Haida Nation, supra note 9 at para. 53, “This theory provides no suport for an obligation on third parties to consult and acomodate. The Crown alone remains legaly responsible for the consequences of its actions and interactions with third parties, that afect Aboriginal interests…the ultimate legal responsibility for consultation and acomodation rests with the Crown. The honour of the Crown canot be delegated”.     89 particular development”.23 This expres recognition that the ultimate duty lies with the Crown, but that private project proponents may play central roles in consultation and acommodation procedures, is also of particular importance in considering the implications of Aboriginal participation in the 2010 Games. Indeed, as wil be sen in Chapter 4 below24 the commites responsible for bidding on, organizing and hosting the 2010 Games, as proponents of 2010 Olympic projects, were significantly involved in the consultation and acommodation of Aboriginal peoples. This indicates that meaningful Aboriginal participation wil often involve the efective coordination of not only the Crown and Aboriginal perspectives and interests, but also private parties. As wil 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 acommodation eforts in British Columbia and Canada.   Haida Nation, Taku Tlingit and Mikisew Cre 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 caried out, but also for seting the legal context from which to consider the meaning of Aboriginal participation in the 2010 Games. The extension of consultation and acommodation duties to “pre-proof” circumstances greatly increases the number of instances in which Crown action wil be required to solicit Aboriginal perspectives, and (if judicial guidance is followed) sek to forward the objectives of recognition and reconciliation. Support for this interpretation is provided by even a cursory examination of the areas of British                                                 23 Ibid. 24 Se especialy Chapter 4.4.1.1 & 4.4.1.2, below.      90 Columbia currently subject to treaty negotiations amongst the Crown and Aboriginal peoples clearly demonstrates the growing prominence the consultation and acommodation of Aboriginal peoples wil hold.25  Indeed, as wil be revealed below,26 the lower courts have sen substantial applications from Aboriginal groups, private project proponents, and the Crown seking judicial guidance and determinations on their eforts at meting the standards prescribed above. These lower court decisions are relevant to our examination as they provide specific eforts of consultation and acommodation which have met with judicial scrutiny, and can be contrasted against Aboriginal participation in the 2010 Games. Additionaly, and similarly to Haida Nation, Taku Tlingit and Mikisew Cre, these lower court decisions provide not only additional context, but also directly demonstrate the necesity for improved approaches to Aboriginal consultation and acommodation, 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 setlement and advance recognition and reconciliation, then a laudable efort in the context of the 2010 Games would not necesarily be of great importance. However, an examination of this most recent jurisprudence wil 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,                                                 25 British Columbia Treaty Comision, Treaty Negotiations In British Columbia Map online: British Columbia Treaty Comision <htp:/ww.ainc-inac.gc.ca/ai/scr/bc/fnbc/mps/trynega-eng.pdf>. (Produced by Profesional & Technical Services under the Information Sharing Protocol for Treaties and Aboriginal Government, Indian and Northern Afairs Canada, and Integrated Land Management Bureau, Ministry of Agriculture and Lands for the Ministry of Aboriginal Relations and Reconciliation).  26 Se 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 Discusion of Consultation and Acommodation   In the examination of Haida Nation, Taku Tlingit, and Mikisew Cre above, both the principles underlying the Crown’s duty to consult and acommodate, as wel 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 acommodation. However, more detailed thought was not given to potential criticisms of this emerging legal doctrine, and any isues such criticisms may raise regarding Crown or private sector eforts which adhere to this doctrine. The content of this criticism is worthy of far deeper consideration than it wil receive here. Nevertheles, the following examination wil aid in a more fulsome asesment of Aboriginal participation in the 2010 Games, and the lesons it provides. Acordingly, it is worthwhile to consider this criticism in brief to ensure that an asesment 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 esence, there is debate amongst commentators as to whether the legal doctrine developed in Sparrow, Van der Pet, 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”,27 which may create “…a new legal order that acommodates Aboriginal rights, through                                                 27 Brian Slatery, “Aboriginal Rights and the Honour of the Crown” (205), 29 S.C.L.R. (2d) 43 at 40.     92 negotiation and agrement with the indigenous peoples afected.”28 Clearly, the interpretation provided in this thesis above is one which endorses such a potential of the Crown’s duty to consult and acommodate. However, several commentators are les positive on the “generative potential” of this jurisprudence and in sharp contrast, view the legal doctrine developed by the judiciary as beter 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 asimilative 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 acommodate curtails the untrameled use of Crown decision making power, it wil efectively do “…no more than potentialy [shift] the exploitation into a slightly diferent form (this is the true underlying nature and extent of ‘acommodation’].”29  Under this critique, the duty to consult and acommodate is simply sen as a tool which, although it may aford some protection to Aboriginal interests, ultimately serves to ofer the Crown alternative, legaly defensible, means to its desired ends. Additionaly, as Christie notes, there wil be those Aboriginal groups who may view the concept of consultation and acommodation as simply a means through which modern colonial proceses are continualy propagated, as Crown understandings of Aboriginal interests as “proven” or “un-proven” wil be thrust upon Aboriginal peoples if                                                 28 Ibid. 29 Gordon Christie, “Developing Case Law: The Future of Consultation and Acomodation” (206) 39 U.B.C. L. Rev. 139 at 163.      93 they wish to set a platform for any consultation demands that wil have legal efect 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 proceses wil 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 “busines as usual” should be expected in the practical application of consultation and acommodation eforts. These difering interpretations of the jurisprudence are far more nuanced than demonstrated by this simplistic distilation. However, it sems apparent that the chasm betwen these parties largely stems from divergent views as to how the Crown wil actualy respond to the guidance provided by the judiciary.  Though these diferent interpretations put varying faith in the Crown to respond appropriately to the guidance of the courts, and whether Crown responses wil indeed be “honourable,” they nevertheles sem to share a substantial amount of agrement on what they view as desired outcomes of the Crown’s duty to consult and acommodate. Scholars and commentators on both sides appear to more universaly endorse the concepts of recognition and reconciliation as articulated by the judiciary as the appropriate objectives which should underlie Section35(1). Additionaly, both interpretations recognize that the proces of reconciliation requires both Aboriginal peoples and the Crown to negotiate in good faith to resolve outstanding Aboriginal land and rights claims. They also sem to equaly recognize that such resolution wil 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 wil almost certainly be required. The more general aceptance and endorsement of these broader purposes and objectives by scholars and commentators provides common ground regarding the manner in which Aboriginal participation should proced. Acordingly, these aspects should be given special regard in asesing 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 universaly acepted purposes of recognition and reconciliation have inded been advanced, good faith applied, and the honour of the Crown upheld. Further to this point, we must specificaly heed the judiciary’s consistent emphasis on the importance of negotiated setlement, 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 asesment 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 minimaly fulfiling administrative requirements of consultation and acommodation. In this manner, the 2010 Games may serve as a practical ilustration of the potential of the above legal doctrine, and provide valuable lesons 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 wil 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 fuly explore the intricacies of the arguments, nor atempt to resolve their diferences, the recognition that criticism of the emerging legal doctrine exists is nonetheles important if we are to beter understand our utilization of judicial guidance to ases Aboriginal participation in the 2010 Games. By being mindful of such criticism, our utilization of the judicial guidance provided above is les likely to provide incorrect praise, and beter 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 asesing eforts to respond to the above judicial guidance wil reveal further guidance on the manner in which consultation and acommodation may be caried out meaningfully, but these decisions also provide insight into the curent Aboriginal participation context     96 in British Columbia and Canada which wil indicate whether the 2010 Games holds greater meaning and implications beyond the Olympic stage.  3.4  Judicial Review of Consultation and Acommodation Eforts  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 eforts of the Crown to met its duties to consult and acommodate, to sek clarification on the precise nature of Crown conduct which would trigger the duty to consult and acommodate, 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 atempt to apply the Haida Nation, Taku Tlingit and Mikisew Cre rulings within the practical constructs of economic projects.  The following section wil emphasize circumstances arising from British Columbian and federal eforts at consultation, as these are the most salient to a discussion of the consultation and acommodation proceses occurring in relation to the 2010 Games, which involved substantial financial and regulatory support from both the British Columbia and federal government. However, consideration wil 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 acommodate, or provide insights into the succes and failures that particular approaches     97 to consultation may entail. In sum, these lower court decisions wil provide additional guidance on how meaningful consultation and acommodation under Section 35(1) should be pursued. More importantly, they ilustrate the dificulties 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 eforts to improve Aboriginal consultation and acommodation.  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 Agrements to cary out the Crown’s duty to consult and acommodate, 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.23 The proposed agrements were intended to provide the afected 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 proces through which the Crown would discharge its duty to consult and acommodate for the duration of the agrement.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 acommodation                                                 231 204 BCSC 1734, 38 B.C.L.R. (4th) 57 [Gitanyow].  232 05 BCSC 697, [205] 3 C.N.L.R. 74 [Hu-Ay-Aht]. 23 Ibid. at paras. 1-3 & Gitanyow, supra note 231 at paras. 1-14.  234 Ibid. at para. 20.      98 through the use of such agrements. First, the agrements were efectively presented as the only option through which consultation and acommodation 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, efectively pre-fixing the level of compensation to be negotiated.235 Finaly, the compensation was to cover any infringement of Aboriginal rights or title during the course of the agrement despite the parties being unsure of the specific forestry activities and outcomes which may occur during the course of the agrement.236  The judiciary noted in both Gitanyow and Huu-Ay-Aht that the Crown efectively treated the proposed forest and range agrements as standard form contracts, and negotiation atempts by the Gitanyow and Huu-Ay-Aht saw scant change in the draft agrements provided by the Crown, and the evidence indicated that few topics were actualy 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 agrements was insufficient to met the Crown’s duty to consult. Dilon J. in Huu-Ay-Aht described the dificulties with this approach to consultation and acommodation, noting that an asesment of the Crown’s consultation eforts must begin with an asesment of whether the Crown has correctly determined the strength of the Aboriginal claim and potential adverse efects implied by the Crown action,238 and therefore the failure of the Crown to undertake such an asesment ensured the “…complete failure of consultation based on                                                 235 Ibid.  236 Ibid 237 Ibid. at para. 3-7. & Gitanyow, supra note 231 at para. 23.  238 Gitanyow, ibid. at para. 121.      99 the criteria that are constitutionaly required for meaningful consultation.”239 In addition, Dilon 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 actualy doing so.240  Huu-Ay-Aht and Gitanyow reveal that although the concept of negotiated setlement has been endorsed by the judiciary, not every from of negotiation, and negotiation behaviour, wil met with judicial approval . Rather, the purpose of pursuing the consultation and acommodation of Aboriginal peoples is to gain greater understanding of Aboriginal perspectives, interests, and claims to rights and title. The Crown approach in this instance efectively precluded the pursuit of greater mutual understanding, and although it may be viewed as recognizing the economic aspect of Aboriginal title, clearly does litle to advance the purposes of recognition and reconciliation. The concept of using contracts to addres consultation and acommodation requirements would sem to adhere with the judicial guidance that negotiation setlement and consent endorsed in Section 35(1) jurisprudence. However, Gitanyow and Huu-Ay-Aht ilustrate that not every approach to contract negotiation wil met with judicial approval. Indeed, as Gordon Christie notes in his asesment of Gitanyow and Huu-Ay-Aht, the judiciary appears to indicate that although the Crown is fre to construct consultation proceses, such proceses must be designed with regard to the Aboriginal interests at stake, which further suggests that consultation “structures for proces are best designed not by Ministry oficials working by themselves in Ministry                                                 239 Hu-Ay-Aht, supra note 232 at para. 126.  240 Ibid. at paras. 127-8.      100 offices, but by Ministry oficials working in concert with potentialy afected 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 generaly pursued Aboriginal perspectives, and sought to create negotiated agrement on Aboriginal participation, but also whether such eforts have truly furthered mutual understanding, and advanced the proceses of recognition and reconciliation. Additionaly, Gitanyow and Huu-Ay-Aht ilustrate that the Crown may indeed be struggling to develop meaningful approaches to Aboriginal consultation and acommodation, 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 appropriatenes of a consultation and acommodation proces developed by the Crown in relation to a significant pipeline project in the Northwest Teritories 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,24 while the development of a Joint Review Panel,245 the terms of reference for the environmental asesment,246 and a Crown                                                 241 Christie, supra note 29.   242 06 FC 1354, [207] 1 C.N.L.R. 1 [Dene Tha’].  243 Ibid. at paras 1-5.  24 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 cary out the broader Aboriginal consultation and acommodation 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 proces amounted to a breach of the Crown’s duty to consult and acommodate the Dene Tha’.249  The Federal Court agred 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 proces. 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 Cre, the judiciary noted that the failure to include Dene Tha’ perspectives in the development of the environmental and regulatory proceses breached the Crown’s constitutional duty, and restated that the Crown may not rely on public consultation proceses to discharge its duties.251 The federal court described the Crown’s consultation in this eforts as failing to “even met 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. 14-16.      102 opportunity to be heard which underlies the administrative law principle of fairnes much les 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 proceses should be caried 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 sems apparent Aboriginal participation wil best met 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 proceses to ensure their perspectives are properly acounted 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 proces, and would pas 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 proceses of the Crown, Brokenhead Ojibway Nation et al. v. the Atorney General of Canada et al.253 clarifies that this does not automaticaly impugn any consultation proces developed by the Crown. In Brokenhead a number of Treaty One First Nations, succesors to the Ojibway First Nations under Treaty One,254 chalenged the isuance by the National Energy Board                                                 252 Ibid. at para. 16.  253 209 FC 484, [209] 3 C.N.L.R. 36 [Brokenhead].  254 Ibid. at para. 1.     103 (the “NEB”) of certificates for the construction of thre pipeline projects.25  This court chalenge was centered, in part, on an argument that the consultation proces utilized by the NEB was incapable of addresing larger consultation and acommodation isues raised by the pipeline projects.256 In particular the Treaty One First Nations cited the inability of the NEB to consult and acommodate with regards to Treaty One First Nation land claims as constituting a failure of the Crown’s duty to consult and acommodate.257  The Treaty One First Nations suggested that while the NEB may be capable of addresing any project specific concerns raised, that larger isues related to the Treaty One First Nations’ land claims would remain unconsidered or addresed as they were beyond the purview of the NEB.258  Indeed, the Federal Court went on to state that the NEB consultation proces was indeed wel suited to addres mitigation, avoidance and environmental isues which were site and project specific.259 However, the Federal Court also noted that the proces was not designed to addres the larger isue of unresolved land claims raised by the Treaty One First Nations,260 and as such, “…the NEB proces may not be a substitute for the Crown’s duty to consult where a project under review directly afects an area of unalocated 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                                                 25 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 nevertheles clear that consultation and acommodation must encompas such isues where there is risk to such broader proceses taking place under Section 35(1).  Brokenhead clearly marks the reafirmation of the important role which consultation and acommodation is intended to play in the larger proceses of recognition and reconciliation. It is apparent that consultation and acommodation wil be unlikely to pas judicial scrutiny where Aboriginal concerns regarding broader impacts to rights and title, and the influence may this have on larger reconciliation proceses and negotiated setlement, go unaddresed. This clearly ilustrates that for Aboriginal participation to advance the proceses of recognition and reconciliation, it should include discussions surrounding the need for larger negotiated setlement, 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 encompased such discussions.  While the jurisprudence above addresed the consultation proceses adopted by the Crown, and their reasonablenes 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 caried 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 carying out an appropriate level of consultation, but also carying out such consultation which is appropriate to the Aboriginal cultures and societies in question. This jurisprudence is                                                 262 Ibid. at para. 3-35.     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 atracting competing opinions and perspectives within the host Aboriginal communities.263   Wi’litswx v. British Columbia (Minister of Forests)264 is the first of these cases, and addresed a complaint from the Hereditary Chiefs of the Gitanyow Nation that the Minister of Forests had failed in its duty to consult and acommodate the Gitanyow.265 The primary complaint of the Gitanyow was that the Crown had insufficiently incorporated was the Gitanyow understandings of teritorial boundaries in its planning of forestry operations.26 The court agred with the Gitanyow, “…the harvesting of timber from Gitanyow traditional teritory without reference to Wilp boundaries could result in the efective destruction of individual Wilps in terms of both teritorial and social considerations.”267 Given the significance of the Wilp system to the Gitanyow, the court                                                 263 Se Chapter 2.7, above, for discusion of the Salt Lake City Games, which revealed internal conflicts amongst Aboriginal groups. Se also, Chapter 4.4.3.6, below, in which discusion of Aboriginal participation in the 2010 Games is discused, and the concept of who “properly” represents Aboriginal peoples is adresed by the FHFN.  264 208 BCSC 139, [208] 4 C.N.L.R. 315 [Wi’litswx].  265 Ibid. at para. 1.  26 Ibid. at para .21 “Gitanyow is organized into eight matrilineal units, colectively caled the Huwilp, and individualy caled Wilps, or Houses. Each Wilp has its own teritory, and these colectively form Gitanyow traditional teritory. The Huwilp are the social, political, and governing units of Gitanyow. They hold and exercise rights and title to the Gitanyow traditional teritory on behalf of the Gitanyow people. Every Gitanyow person belongs to a Wilp. By Virtue of this membership, each person has rights to the teritory and resources owned by his or her Wilp, under the direction of the Hereditary Chiefs of each Wilp”. 267 Ibid. at para. 23.      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 acommodate.268  Wi’litswx can be interpreted as offering further guidance on the manner in which consultation and acommodation proceses 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 acommodation eforts reflect the unique cultural and societal perspectives of the Aboriginal peoples involved. This is significant, because it would sem to indicate that the duty to consult and acommodate 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. Additionaly, Wi’litswx appears to imply that where the Crown is carying 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 aleging a breach of the Crown’s duty to consult and                                                 268 Ibid. at para. 28.  269 207 NLCA 75, 28 D.L.R. (4th) 641 [Labrador Métis Nation].      107 acommodate.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 asesing the appropriatenes 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 asesment comes with regards to a corporate entity expresly 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. Wi’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 isues of importance are of equal value to non-Aboriginal or Crown perspectives, and must be given equal weight.    While Wi’litswx and Labrador Métis Nation ilustrate that appropriate recognition must be given to the decision making proceses 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 acommodate 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 Wi’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 proces for the community as a whole. A clarifying piece of guidance on how to balance competing interests amongst Aboriginal representatives was provided by Sewel J. in Nlaka’pamux Nation Tribal Council v. Grifin27 where the court was faced with Aboriginal organizations taking conflicting stances on a proposed landfil. Sewel J.                                                 273 206 BCSC 1472, [206] B.C.J. No. 206 [Red Chris].  274 Ibid. at para. 1.  275 Ibid. at para. 14. 276 Ibid. at paras. 15-6.  27 209 BCSC 1275, [209] 4 C.N.L.R. 213 [NTC].      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 al points of view ithin a First Nation are given appropriate consideration.”278   The significance of Wi’litswx, Labrador Métis Nation, Red Chris, and NTC 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 wil be necesary to obtain greater understanding of Aboriginal peoples and culture if consultation and acommodation is to be meaningful, and adhere to the judicialy 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 acount for in its own planning proceses in order to fulfil 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. Additionaly, it provides more specific guidance on which representatives from Aboriginal peoples should expect to participate in consultation and acommodation, and how conflicting organizations should be dealt with, both of which are often key isues in relation to how Olympic critics and criticism should be considered.                                                    278 Ibid.      110 3.4.1 Discusion - Aplication of Consultation and Acommodation  The lower court jurisprudence discussed above represents a rapidly developing legal doctrine, which the judiciary wil no doubt, expand, clarify, and perhaps over-turn in future rulings. Nevertheles, these cases provide both further guidance as to how the principles and guidelines in Haida Nation and Taku Tlingit, as wel as earlier jurisprudence, should be considered and applied in specific situations, but also, an asesment 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 acommodate Aboriginal peoples. However, this lower court jurisprudence is nevertheles 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 eforts. 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 dificulty steming from much of the Crown eforts to meaningfully met its duty to consult and acommodate Aboriginal peoples since the release of Haida Nation and Taku Tlingit. The case law above reveals instances where the Crown simply neglects to cary out any direct consultation of Aboriginal peoples altogether, or the proces is fundamentaly     111 flawed in that it proceds 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 Commision,281 and Carrier Sekani Tribal Council v. British Columbia (Utilities Commision).282 This trend revealed in this lower court jurisprudence clearly reveals that Aboriginal participation in the 2010 Games, if it is meaningful, and mets the standards articulated by the courts, may be particularly important to asisting al 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 acommodate has been breached. In almost every instance the judiciary simply requires the parties to continue with consultation and acommodation, guided by the reasons which the court has provided.283 This demonstrates the judiciary’s comitment to ensuring that consultation proceses and acommodation outcomes are crafted by the Crown and Aboriginal peoples, and reveals how particularly wasteful the litigation proceses is in such instances. If the ultimate remedy is simply for the Crown and Aboriginal peoples to continue with consultation and acommodation proceses, albeit with an approach                                                 279 204 BCSC 506, [204] 3 C.N.L.R. 24. 280 208 FCA 214, 297 D.L.R. (4th) 349. 281 209 BCA 68, 89 B.C.L.R. (4th) 273.  282 09 BCA 67, 89 B.C.L.R. (4th) 298, leave to apeal to S.C.C. granted, 3132 (November 5, 209). 283 Se e.g. Gitanyow, supra note 231 at paras. 64-68. Se also Hu-Ay-Aht, supra note 232 at para. 128. Se also Dene Tha’, supra note 242 at para. 134.      112 amended by the judiciary, it sems patently obvious that al parties would be much beter served by simply ensuring consultation and acommodation is meaningfully caried out in the first instance. This again demonstrates the importance of developing more succesful and meaningful methods for Aboriginal participation (from the perspective of al parties), and provides further support that Aboriginal participation in the 2010 Games may have greater meaning beyond the Olympic realm.  3.5  Aplication of Legal Context to the 2010 Games Examination  As stated in the introduction to this chapter, the above review of jurisprudence set out to acomplish two main objectives. The first was to construct a set of judicial guidelines from which to ases Aboriginal participation in the 2010 Games. The second was to generaly consider the curent state of Aboriginal participation in non-Olympic contexts, and identify those bariers which appear to most consistently prevent more efective Aboriginal participation from taking place. Ultimately the jurisprudence has provided ample guidance on the purposes, principles, and manner in which efective Aboriginal participation may be achieved, but also clearly demonstrated the consistent dificulty that the Crown has had in efectively responding to judicial interpretation of Section 35(1) and its constitutional duties. As these two objectives were acomplished 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 asesment 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 recal 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 legaly 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 asesment of the 2010 Games below wil efectively be caried out based on the current legal doctrine, as discussed above.  The reason for asesing 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 asesment 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 curent form. This clarification is important, as there may be instances in which the Aboriginal participation in the 2010 Games may not met current legal standards, but would not have been considered a legal breach during that period of time. The asesment below wil endeavour to clarify such instances. The duty to consult and acommodate is triggered where the Crown is aware that its objectives may negatively impact a claimed Aboriginal right or title. Therefore, not al of the 2010 Games projects, nor much of the other important organization proceses,     114 trigger a duty to consult and acommodate. 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 acommodate is targeted at very specific types of Crown activities, judicial guidance on the subject may nevertheles be considered in asesing these additional situations, and indeed, it is important to consider Aboriginal participation as a whole, in order to fuly ases its nature, succeses and failures in light of the above jurisprudence.  Furthermore, Haida Nation makes clear that necesary levels of consultation and acommodation are directly tied to the strength of claim to rights or title advanced by an Aboriginal group, and therefore the asesment 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 necesary 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 wil proced more generaly. Instead of undertaking this strict review, the asesment of Aboriginal participation in the 2010 Games wil efectively proced by considering whether such participation mets with the principles and guidelines provided by the judiciary more generaly, rather than considering whether the participation in question was necesitated by the strength of the particular First Nation’s claims.     115 Therefore, it wil be more meaningful to ases Aboriginal participation in the 2010 Games has achieved greater meaning and furthered the proceses of recognition and reconciliation.  By using the legal guidance outlined above, the meaning and implications of Aboriginal participation in the 2010 Games may be beter understood. Again, the asesment which follows is not intended to strictly apply the legal guidelines, but rather to proced more generaly, and to consider whether the 2010 Games reflects the legal principles, guidelines and objectives. The more general approach wil alow an asesment of the 2010 Games to determine whether Aboriginal participation mets with the principles and objectives highlighted by the judiciary, and to determine how the 2010 Games succed or failed in relation to other eforts at consultation and acommodation. Obviously this asesment of the 2010 Games wil be more useful by identifying not only whether Aboriginal participation adheres to judicial guidelines, but also, how Aboriginal participation met with succes or failure. From there it wil be possible to consider what the implications of the 2010 Games approaches may be for broader eforts at structuring consultation and acommodation proceses. Coupled with the historic review of the historic participation of Aboriginal peoples in the Olympic Games, this jurisprudence wil 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 succesful, disastrous, or something in betwen. As discussed more fully above, reliance on judicial guidance to ases 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 chalenged, 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 generaly, and in the historical involvement of Aboriginal peoples in the Olympic Games more specificaly, provides a basis from which the Aboriginal participation in the 2010 Games may now be asesed, 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 stil failed to completely satisfy those Aboriginal peoples involved, or critics who have viewed such participation as simply a means to silence or placate Aboriginal disent.  Similarly, our examination of the jurisprudence surrounding Aboriginal participation reveals fractured opinion on the ability of the principles and guidance of this jurisprudence to efect meaningful inclusion of Aboriginal peoples in developments and project which afect them. However, conflicting views of the meaning of Aboriginal participation in the Olympic Games, or in development more generaly, 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 iluminate and ases 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 generaly. 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 proceses which structured the outcome. Indeed, the most valuable lesons from the 2010 Games are almost certainly the proceses pursued by the Aboriginal groups, organizers and Crown representatives, as such proceses may be translated into non-2010 contexts, both Olympic and non-Olympic. Therefore, we wil concern ourselves with the means and methods adopted in consultation, discussion and negotiation betwen the parties, in addition to the final products which those eforts achieved. In order to undertake a more fulsome and complete examination and discussion of Aboriginal participation in the 2010 Games, it wil be integral to consider the lesons and suggestions of the previous two chapters throughout. While the final chapter wil elaborate on the lesons of the 2010 Games, to understand what has taken place in the 2010 Games context, it wil be necesary to compare and contrast the elements of Aboriginal participation both to past games, and jurisprudential guidance. In particular, it wil be necesary to highlight where Aboriginal participation in the 2010 Games has succeded (or failed) in relation to historical Olympics and Crown or private sector eforts at Aboriginal consultation and acommodation as asesed by the judiciary. With specific regard to the asesment of the 2010 Games from a legal context, it is worth noting that the eforts of parties are being asesed from the curent state of the law     119 surrounding Aboriginal consultation and acommodation, despite the rapid development of this legal doctrine during the timeframe which encompases the bidding, organization and hosting of the 2010 Games. Therefore it is worth recaling that the parties would not have been bounded and guided by al 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 wil best reveal the lesons and implications of Aboriginal participation in the 2010 Games.  In pursuing the above objectives, we wil explore the context of the 2010 Games both chronologicaly, and by subject mater. To clarify, the folowing chapter is generaly organized into thre distinct phases of Games development. The first is the bid phase, which in this case takes place betwen 1998 and 2003. The second phase is the organizational phase, which encompases al the eforts taking place betwen the succes of the bid, and actual hosting of the Games. The third encompases the actual hosting of the 2010 Games. The arangement of our examination generaly around these thre periods of Olympic Games development provides a clear way to examine the progresion 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 eforts were pursued on a wide variety of subjects. Therefore, within each of these broad periods, our chronological examination wil be broken further down to specific topics and subjects, so the negotiation of specific agrements 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 wel as the thesis work of Dunn who caried out significant interviews with those individuals involved in developing Aboriginal participation in the 2010 Games. These acounts 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 wil become available in the months and years that folow. Therefore, a limitation of this research is almost certainly the necesarily imperfect acount of al the facets of Aboriginal participation in the 2010 Games. Nevertheles, the material which is relied upon provides a significant level of detail, and as wil be demonstrated, provides ample fodder for our asesment and discussion.  Finaly, it is worth noting that this review has also atempted to provide some acount of the disenting voices which were critical of the 2010 Games generaly, and Aboriginal participation in particular. This acount 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 acount of any disenting opinion. Inded, it may be a reflection of the succes of the approaches taken by the Aboriginal groups, Games organizers and the Crown that more vocal disenting opinion was not readily available.      121  As wil be apparent, the emphasis of the review below is largely on the negotiation proceses and agrements reached betwen the relevant parties, and the land use development isues which arose in relation to the Calaghan Valey. 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 agrement on land use planning and project implementation is at the very heart of such endeavours. Therefore, while our examination wil atempt to do justice to the significant eforts that went into addresing isues related to cultural involvement, intelectual property use, and other extremely important maters, any disparity in breadth betwen subjects has been largely driven by the aforementioned points. Indeed, though the level of detail on these subjects may be les, they stil have significant lesons to offer. As wil be sen below, some of the most significant lesons and implications of Aboriginal participation in the 2010 Games were those related to the construction of efective partnerships, which alowed for meaningful Aboriginal participation. The importance of such partnerships is not limited to land use planning and development contexts, and therefore al 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 eforts.        122 4.2  Overview of 2010 Olympic Games Hosting Proces  Before delving into the specific elements of Aboriginal participation in the 2010 Games, it is worth providing a brief overview of the key proceses in bidding, organizing and hosting an Olympic Games, so that the chronology of the 2010 Olympic proces is clear. The proces 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 encompases 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 commite, which is necesary in order for a city to be considered by the International Olympic Commite 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 generaly 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 internationaly for the right to host the Olympics. The international bid proces is typicaly run by a “bid corporation”, which is created following the succes of the domestic bid, and is normaly a diferent entity from the bid society which created the domestic bid. The International Olympic Commite awards the Games to one of thre bid cities approximately seven years prior to the date at which the Games are held. Once the bid has been succesful, the bid corporation is ended, and a new entity, the                                                 284 Sagen v. Vancouver Organizing Comite for the 2010 Olympic and Parlaympic Winter Games, 209 BCSC 942, af’d on other grounds Sagen v. Vancouver Organizing Comite for the 2010 Olympic and Paralympic Winter Games, 209 BCA 52 [Sagen] at para. 9 (Court provides outline of 2010 Games bid proces).      123 organizing commite, is created to overse the development and hosting of the Olympic Games. Following the hosting of the Olympic Games, the organizing commite is eventualy wound up, and at this stage there may be a legacies commite (as is the case in Vancouver/Whistler) or no specific entity tasked with folowing 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 commite, the involvement of thre entirely separate entities clearly suggests particular isues in developing relationships, participation structures and agrements. With this overview in mind, we may now proced 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 proces related to the 2010 Games was caried out in 1998, and pited Vancouver/Whistler against Calgary and Quebec City for the right to bid internationaly 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 businesman Arthur Grifiths, Vancouver Mayor Philip Owens, and representatives of British Columbia’s Minister of Smal Busines, 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 submision to the Canadian Olympic Asociation, and obtaining the support of the municipalities of Vancouver and Whistler for hosting the 2010 Games.287 The Squamish and Lil’wat Nations expresed interest in participating in the Vancouver/Whistler bid from the outset.28 Recognizing that the 2010 Games would be taking place within their traditional teritories, Chief Joe Mathias of the Squamish Nation, and Chief Alen Stager and Lyle Leo of the Lil’wat Nation approached the Bid Society to expres their interest in participating in the bid proces.289 These early eforts 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 submisions.291 In addition to these references the domestic bid book included a leter of support from the Squamish Nation, which expresed the desire of the Squamish to develop mutual opportunities to create legacies for Squamish people, and directly referenced involvement in cultural programing.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: 0094, Deputy City Manager Report to Standing Comite on City Services and Budgets Comite Regarding 2010 Olympic Bid: Isues and Curent Status (28 September, 198), online: The City of Vancouver <htp:/vancouver.ca/ctyclerk/clerk/98108/csb2.htm>. 28 Dun, 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 leter from the Squamish indicated that the emphasis of this early participation was largely based on cultural opportunities, which closely reflects the subject mater of previous Aboriginal participation in the Olympics. Nevertheles, it was clear that the Squamish and Lil’wat were seking 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 sem 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 proceses. In this regard, the 2010 Games would sem to have succeded 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 succeded where past Olympics or Crown eforts 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 teritories, rather than Musqueam and Tsleil-Waututh. This may be legaly sound, based on the Haida Nation principles, it clearly reflects the limitations of the legal doctrine to incorporating Aboriginal participation. Nevertheles, the domestic bid reflected more substantive Aboriginal involvement than had previously been sen in an Olympic context, seting the stage for the development of the international bid.      126 On December 1, 1998, the Canadian Olympic Asociation chose Vancouver/Whistler to represent Canada internationaly, 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 reafirmed 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 Additionaly, 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 necesity for consultation of Aboriginal peoples during projects which may afect their constitutionaly protected rights298 created a backdrop of legal risk regarding much of the necesary construction projects intended for the Sea-to-Sky corridor.29 Finaly, 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 Dun, supra note 20at 75-6. 296 Ibid. at 7.  297 Delgamukw, supra note 180. 298 Haida Nation v. British Columbia (Forests), 202 BCA 157, [202] 6 W. .R. 243, with suplementary reasons 202 BCA 462, 5 B.C.L.R. (4th) 3, af’d in part, rev’d in part Haida Nation, supra note 9.  29 Dun, supra note 20 at 78. Se also Vancouver 2010 Bid Corporation, Vancouver 2010 Bid Corporation, Vancouver 2010 Olympic Winter Games Bid Bok Submision to the International Olympic     127 formation (June 1999), the IOC was adopting Agenda 21 as a guiding document for the Olympic movement, and its expres statement recognizing the need for strengthened roles for indigenous peoples in the Olympic movement.30 This confluence of factors created a seting 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 teritory, in particular Squamish and Lil’wat claimed teritories. 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 sen in previous                                                                                                                                             Comite (Vancouver: online: Vancouver 2010 <htp:/ww.vancouver2010.com/ore-2010-information/about-vanoc/organizing-comite/bid-history/bid-bok/bid-bok_8094qM.html>, 203) [“Bid Bok”] at 128-9 (Venues).  30 International Olympic Comite, Olympic Movement’s Agenda 21: Sport for sustainable development (Lausane: online: International Olympic Comite Sport and Environment Comision <htp:/multimedia.olympic.org/pdf/en_report 30.pdf>, 199) 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 Dun, supra note 20 at 75-6. 302 Ibid. at 76. 303 Ibid.     128 Olympic Games. Additionaly, it clearly reflected a commitment to ensuring that Aboriginal participation would be more structured, and ongoing, which mirors key guidance provided by the judiciary on developing appropriate consultation and acommodation proceses. It is notable that the Bid Corporation’s plans for Aboriginal participation were not overly rigid, but rather, were merely expresions 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 caried had not ben determined or decided, which is the approach expresly approved by the judiciary. By adopting some formal outline to pursuing Aboriginal participation, but avoiding unnecesary (and unilateral) rigidity, the Bid Corporation efectively demonstrates an approach which pre-empts “unstructured”, but also displays the necesary flexibility to ensure the isues indicated in Gitanyow are avoided, and consultation wil stil be meaningful. It is notable that the development of Aboriginal participation at this stage was entirely through the eforts 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, specificaly 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 succesful) organizing commite’s approach to broad Aboriginal participation.306 Specific details on the content of the Strategy were not obtained through the research eforts here, but as the examination of Aboriginal participation in the 2010 Games continues, the content of the Strategy wil 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 formaly pursued. That Aboriginal perspectives were incorporated into the development of the Strategy is also notable, and would sem 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 acommodation structures and strategies. However, the Strategy was not directly concerned with the impacts of the 2010 Games to those Aboriginal groups whose traditional teritories 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. Se also Vancouver 2010 Bid Corporation, Vancouver 2010 Preliminary Impact Asesment (British Columbia: online: Legislative Library of British Columbia <htp:/ww.lbc.leg.bc.ca/public/pubdocs/bcdocs/361736/prelim_impact_asesment_ov.pdf>, 203).     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 teritories 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 eforts aimed at developing relationships with the regional Aboriginal groups and incorporating their participation were not guided by a paralel, more formal strategy. Rather, the participation of these specific Aboriginal groups was pursued in a les 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 fil 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 Councilor 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 Dun, supra note 20 at 7.      131 $150,000 funding provided each by the Federal and Provincial Governments.308 Ultimately the Secretariat proved les than efective, with participants citing dificulties incorporating the Secretariat within the rest of the Bid Corporations activities.309 Though this is not entirely clear from the information available, it sems likely that any inefectivenes of the Aboriginal Secretariat may have played a role in the les 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 teritory.310 The proposed plans caled for the construction of an entirely new Nordic centre and athletes’ vilage on undeveloped, Crown held lands within Squamish/Lil’wat traditional teritories.31 In contrast, the Olympic construction proposed within Musqueam/Tsleil-Waututh traditional teritories was slated for development on privately held lands,312 which substantialy weakens the claims of the Musqueam or Tsleil-Waututh to Aboriginal rights or title over those lands, and lesens 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 <htp:/ww.canada2010.gc.ca/obj/pa-ap/040201-eng.cfm>.  309 Dun, supra note 20 at 7.  310 Ibid. at 78 & 98. 31 Bid Bok, supra note 29 at 128-29 (Venues), & 187 (Olympic Vilage), & 12-20 (Comunications and Media Services) where Bid Corporation outlines new construction proposed for hosting the 2010 Games.  312 Ibid. 313 Se Delgamukw, supra note 180 paras. 143-159 for discusion of prof of Aboriginal title and importance of exclusivity and continual use of land by Aboriginal claimants to the strength of their claims to Aboriginal title. Delgamukw demonstrates that in circumstances where lands have ben privately held     132 diferences betwen strength of claim and potential impacts to claimed rights and title directly correlate to the level of consultation and acommodation 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 acommodate Aboriginal peoples had not fully crystalized 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 atention, 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 mutualy aceptable solutions may hold specific implications for the lesons 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 eforts in                                                                                                                                             for significant periods of time, especialy prior to the Constitution Act, 1982 that Aboriginal claims wil likely be much weaker. This largely describes the development proposed within the Cities of Vancouver and Richmond for the 2010 Games.  314 Se Chapter 3.3, above, at 82-85 for discusion of Haida Nation and jurisprudence describing the scope of the Crown’s duty to consult and acomodate Aboriginal peoples.  315 Se Chapter 3.3, above, at 76-78 for description of the development of jurisprudence.  316 Se e.g. Dun, supra note 20, at 97 quoting Tery 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 suportive and that they had believed they were fairly treated and those independent interviews afirmed 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 suport for the 2010 Games was legitimate, and reveals the importance which such isues hold in hosting an Olympic Games.      133 participating in the Bid and 2010 Games through the creation of a Protocol Agrement.317 Signed during March of 2001, the Protocol Agrement 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 Agrement identified thre common objectives among the Squamish and Lil’wat Nations: first, to respect the historic and curent 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 Agrement signaled the commitment of the Squamish and Lil’wat Nations to make and implement decisions concerning activities within their traditional teritories 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 eforts, the Squamish and Lil’wat positioned themselves to exert greater leverage in their participation with the Bid Corporation, and obtain guaranted 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 Agrement, online: Squamish Lil’wat Cultural Centre <htp:/ww.slc.ca/about-us/tale-of-two-nations/protocol-agrement>. Se 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 <htp:/ww.gov.bc.ca/ar/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 barier to succes.321 Additionaly, 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 acommodate. In several cases, such as Dene Tha’ or Brokenhead, consultation proceses involved a number of diferent Aboriginal groups, and it sems readily apparent that one of the dificulties the Crown has encountered in such situations is structuring efective consultation proceses for al Aboriginal groups involved.32 The approach of the Squamish and Lil’wat to coordinate their own eforts ilustrates a unique approach by two Aboriginal groups to structure their own engagement, and as wil 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 caries obvious lesons for structuring more efective Aboriginal participation eforts in the future, both in the Olympics, and more generaly.  In August of 2002, as the Bid Corporation was finalizing the Bid Book for submision to the IOC,323 the Squamish and Lil’wat Nations indicated their expectations that they would se 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 expresed 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 Se Chapter 2.7, above, at 48-51 for discusion of isues encountered in Aboriginal participation in the Salt Lake City Games.  32 Se Chapter 3.4, above, at 98-102 for discusion of Dene Tha’ and Brokenhead.  323 Legislative Library Olympic Timeline, supra note 189 at 4. 324 Dun, supra note 20, at 78-9.     135 Games.325 These benefits, as wel as Whistler’s obligations, were formalized through the negotiation of a Multiparty Agrement (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 Asociation, Canadian Paralympic Asociation, 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 waranted similar benefits and legal commitments, and approached the Bid Corporation with the intention of obtaining a formal agrement addresing their concerns.328  During these negotiations, and the Squamish and Lil’wat’s expresion 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 acommodate Aboriginal peoples, but had also imparted this duty on private parties.329 Though these concepts had not fully crystalized, and the Court of Appeal’s decision had been appealed to the Supreme Court of Canada,30 it was apparent to the Bid Corporation and the Province that the curent consultation and acommodation                                                 325 Ibid. Se also, Whistler Host Mountain Resort, “Investing in the Dream: Whistler – Host Mountain Resort 2010 Olympic and Paralympic Games 2010 Winter Games Budget” (September 208) online: <htp:/ww.histler2010.com/pdf/investing-in-the-dream.pdf>. 326 Multiparty Agrement 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 Comunity, Aboriginal and Women’s Services, City of Vancouver, Resort Municipality of Whistler, Canadian Olympic Comite, Canadian Paralympic Comite & Vancouver 2010 Bid Corporation, 14 November 202, online: Canada’s Games <htp:/ww.canada2010.gc.ca/role/gc/mpa/MPA-e.PDF> [“MPA”]. 327 Ibid. 328 Dun, supra note 20 at 78-79. 329 Se Haida Nation BCA decision, supra note 298. Note, this aspect of the BCA decision was overturned by the Supreme Court of Canada in Haida Nation, supra note 9. Se Chapter 3.3., for discusion of Haida Nation, Taku Tlingit and Mikisew Cre for explanation of why duties to consult and acomodate aply only to the Crown.  30 Ibid. leave had ben granted November 14, 202.     136 aforded to the Squamish and Lil’wat would likely be inadequate under this emerging doctrine.31 Additionaly, it was apparent that Aboriginal support for the 2010 Games would be crucial to the succes of the Bid, and organization of the 2010 Games.32 Therefore, the Bid Corporation and Province of British Columbia commited to negotiating a benefits agrement for the Squamish and Lil’wat, embarking on an intense proces of negotiations which culminated in the Shared Legacies Agrement (the “SLA”),33 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 weks 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 guaranted regardles of the succes of the Bid, while others would be extended only should the Bid prove succesful. Those benefits guaranted to the Squamish and Lil’wat were: a. the transfer of 300 acres of fe simple land from the Province to the Nations to pursue economic development opportunities within their shared teritories;34 b. the development of a Skils and Training Legacy Project, to which the Province agred to contribute $2.3 milion over thre years;35 c. a naming and recognition project which would se the Province and Nations collaborate to include Aboriginal names for places throughout the Calaghan Valey, the contribution of $500,000 from the Province in support of the project; and36 d. the provision of $3 milion from the Provincial government towards the construction of a proposed $15 milion Squamish and Lil’wat Cultural C