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Reconciliation 'at the end of the day' : decolonizing territorial governance in British Columbia after.. Kotaska, Janalyn Gail 2013

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RECONCILIATION ?AT THE END OF THE DAY?:  DECOLONIZING TERRITORIAL GOVERNANCE IN BRITISH COLUMBIA AFTER DELGAMUUKW  by Janalyn Gail Kotaska   A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Resource Management and Environmental Studies)  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  August 2013  ? Janalyn Gail Kotaska, 2013  ii Abstract  This dissertation examines new relationships and reconciliation processes between First Nations and the province of British Columbia after the 1997 Supreme Court of Canada ruling in Delgamuukw, a decision that confirmed the continuing existence of Aboriginal title in the absence of treaties. Beginning with existing theories and critiques of reconciliation, I construct a framework for evaluating if reconciliation processes, and particularly those related to territorial governance, are genuine. The framework is then applied to an examination of new relationships, including co-governance, and a new Indigenous system of territorial governance: the Coastal First Nations? Regional Monitoring System. In order to better understand how relationships are changing and competing claims to land and resources are being reconciled, I interviewed First Nation and provincial policy- and decision-makers, engaged in participant-observation as an employee of various First Nation groups, studied a case of Indigenous territorial governance, and analysed documentary evidence.    I found that by strategically using the uncertainty of undefined Aboriginal rights, some First Nations are regaining governing power over their territories and inculcating a new vision for reconciliation in the province. Instead of focusing on treaties in a process designed to create certainty for settler governments, reconciliation is now seen by decision-makers on both sides as an incremental and ongoing process of building relationships, creating sustainable economies, co-governing with a common vision, and building capacity to meet these goals. I also argue that, despite systemic change, the relationship between the province and First Nations remains colonial. Ultimately, genuine reconciliation will require a relationship to which First Nations agree. Other requirements include the province relinquishing territorial  iii control and observing Indigenous sovereignty in practice, the province compensating Indigenous peoples for their losses, and both parties negotiating on equal footing the sharing of decision-making authority and revenues where First Nations agree to co-govern. Overall, the study addresses power as yielded not in a single decolonizing act, but through many small acts in an ongoing process of reconciliation, thereby illuminating decolonization as it is currently and arguably occurring.  iv Preface  Ethics approval for this research was obtained from the UBC Behavioural Research Ethics Board, Certificate Number H09-02087.   v Table of Contents  Abstract .................................................................................................................................... ii!Preface ..................................................................................................................................... iv!Table of Contents .................................................................................................................... v!List of Tables ........................................................................................................................... x!List of Figures ......................................................................................................................... xi!List of Abbreviations ............................................................................................................ xii!Glossary ................................................................................................................................ xiii!Acknowledgements .............................................................................................................. xvi!Dedication ........................................................................................................................... xviii!Chapter  1: Introduction ........................................................................................................ 1!1.1! Research Questions and Approach .............................................................................. 5!1.2! Structure and Contributions of the Dissertation ........................................................... 9!1.3! Notes on Terminology ............................................................................................... 13!Chapter  2: The Roots of Injustice Lie in History .............................................................. 16!2.1! Aboriginal Rights ....................................................................................................... 21!2.2! A History of Indigenous-State Relations in Canada .................................................. 24!2.2.1! Recognition and Colonization ............................................................................. 26!2.2.2! Denial and Attempted Assimilation .................................................................... 30!2.2.2.1! 19th Century Legislation .............................................................................. 32!2.2.2.2! 19th Century Case Law ................................................................................. 34!2.2.2.3! 20th Century Legislation and Policy ............................................................. 37!2.2.3! Recognition and Talk of Reconciliation ............................................................. 39! vi 2.2.3.1! Calder and Land Claims .............................................................................. 40!2.2.3.2! The Constitution Act (1982) and Subsequent Case Law ............................. 43!2.3! Conclusion ................................................................................................................. 52!Chapter  3: From ?Reconciliation? to Decolonizing Territorial Governance .................. 57!3.1! Reconciliation as a Response to Mass Injustice ........................................................ 60!3.1.1! Truth .................................................................................................................... 63!3.1.2! Justice .................................................................................................................. 64!3.1.3! Reparations ......................................................................................................... 66!3.1.4! Reconciliation ..................................................................................................... 68!3.2! Reconciliation as a Response to Settler Colonialism ................................................. 70!3.2.1! Conceptual Problems .......................................................................................... 70!3.2.2! Processual Problems ........................................................................................... 74!3.3! Requirements for Genuine Reconciliation in Settler Colonialism ............................. 79!3.3.1! Goals of Reconciliation ....................................................................................... 80!3.3.2! Processes of Decolonization ............................................................................... 82!3.3.2.1! Creating a Nation-to-Nation Relationship of Mutual Respect ..................... 83!3.3.2.2! Observing Indigenous Title and Sovereignty .............................................. 85!3.3.2.3! Making Other Reparations ........................................................................... 89!3.3.2.4! Decolonizing Settlers ................................................................................... 91!3.4! Decolonizing Territorial Governance ........................................................................ 93!3.4.1! Indigenous Territorial Governance ..................................................................... 96!3.4.2! Co-Governance of Indigenous Territories .......................................................... 99!3.5! Conclusion ............................................................................................................... 104! vii 3.6! Postscript: Reconciliation in Canada ....................................................................... 107!Chapter  4: New (Colonial) Relationships in BC After Delgamuukw ............................ 115!4.1! Engagement Strategies Before Delgamuukw ........................................................... 119!4.2! Significance of Delgamuukw to Indigenous-State Relations ................................... 123!4.3! Engagement Strategies After Delgamuukw ............................................................. 126!4.3.1! Direct Action and Force/Occupation ................................................................ 127!4.3.2! Litigation ........................................................................................................... 131!4.3.3! Treaty Negotiation ............................................................................................ 137!4.3.4! Consultation and Accommodation .................................................................... 151!4.3.5! Government-to-Government Negotiation and The New Relationship ............. 157!4.4! New Relationships and Reconciliation .................................................................... 164!Chapter  5: ?Leveling the Playing Field? in New Relationships ...................................... 169!5.1! The Interviews ......................................................................................................... 175!5.2! Colonialism and Its Impacts on Indigenous Peoples and Settlers ............................ 179!5.2.1! Disenfranchisement and Discrimination ........................................................... 181!5.2.2! Adoption of Colonial Ways .............................................................................. 184!5.2.3! Imperialist Amnesia .......................................................................................... 185!5.3! Learning About, Using, and Addressing Aboriginal Rights .................................... 191!5.3.1! Learning About Aboriginal Rights ................................................................... 191!5.3.2! Using and Addressing Aboriginal Rights ......................................................... 196!5.4! New and Improved Relationships ............................................................................ 202!5.4.1! Evidence for Improved Relationships ............................................................... 206!5.4.2! Unevenly Improved Relations .......................................................................... 215! viii 5.4.3! Still Colonial Relationships .............................................................................. 221!5.5! Conclusion ............................................................................................................... 231!Chapter  6: Eyes and Ears on the Coast ........................................................................... 236!6.1! The Context .............................................................................................................. 242!6.2! The Regional Monitoring System ............................................................................ 249!6.3! Asserting Their Rightful Authority .......................................................................... 253!6.4! Working Together to Build Power ........................................................................... 258!6.5! Building Capacity, Building Nations ....................................................................... 266!6.6! Shifting Power with Science .................................................................................... 269!6.7! Challenges and Future Opportunities ....................................................................... 275!6.8! Conclusion ............................................................................................................... 279!Chapter  7: Reconciliation ?At the End of the Day? ......................................................... 282!7.1! Thoughts about Treaties and Certainty .................................................................... 285!7.1.1! The Power of Certainty and Uncertainty .......................................................... 286!7.1.2! You Only Sign a Treaty to Give Up Land ........................................................ 290!7.1.3! Certainty is a Myth ............................................................................................ 292!7.1.4! You?ll Never Reach the End ............................................................................. 299!7.2! Building Relationships and Trust ............................................................................. 304!7.2.1! Personal Relationships Build Trust ................................................................... 308!7.2.2! Putting Aside Differences and Finding Solutions ............................................. 311!7.3! Closing Gaps and Creating Sustainable Economies ................................................ 315!7.3.1! Becoming Economic Drivers ............................................................................ 319!7.3.2! Creating Sustainable Economies ....................................................................... 325! ix 7.4! Co-Governing with a Common Vision .................................................................... 328!7.4.1! Ultimate Authority and Efficiency of Governance Processes .......................... 329!7.4.2! Common Visions and Interface Issues .............................................................. 337!7.5! Building Capacity .................................................................................................... 347!7.5.1! Internal Governance .......................................................................................... 352!7.5.2! Regional Groups and Economies of Scale ........................................................ 359!7.5.3! People and Jobs ................................................................................................. 364!7.6! Conclusion ............................................................................................................... 372!Chapter  8: Conclusion ....................................................................................................... 379!References ............................................................................................................................ 390!Appendices ........................................................................................................................... 404!Appendix A Pre-Delgamuukw Table of Events ................................................................ 404!Appendix B Post-Delgamuukw Table of Events .............................................................. 408!Appendix C Interview Script ............................................................................................ 416!Appendix D Research Methods for Chapter 6 .................................................................. 418!  x List of Tables  Table 6.1    Amount and Type of Data Collected Using RMS from 2010 to 2012 .............. 253!Table 6.2    Relationships Between First Nations? Ethics/Values and Scientific Principles 271!  xi List of Figures  Figure 6.1    Map of Coastal First Nations Member Communities ....................................... 245!Figure 6.2    Coastal Guardian Watchmen Network Flag ..................................................... 256!Figure 6.3    Guardian Watchmen in Uniform ...................................................................... 256!  xii List of Abbreviations  BC  British Columbia BCCA  British Columbia Court of Appeal BCSC  British Columbia Supreme Court CGWN Coastal Guardian Watchmen Network DFO  Fisheries and Oceans Canada (formerly Department of Fisheries and Oceans) FN  First Nation  FNLC  First Nations Leadership Council G2G  government-to-government G20  Group of Twenty Finance Ministers and Central Bank Governors GPS  Global positioning system INAC  Indian and Northern Affairs Canada MARR (British Columbia) Ministry of Aboriginal Relations and Reconciliation NAILSMA North Australian Indigenous Land and Sea Management Alliance PhD  Doctor of Philosophy  RCAP  Royal Commission on Aboriginal Peoples RMS  Regional Monitoring System SCC  Supreme Court of Canada TEK  Traditional ecological knowledge TFL  Tree Farm License TRC  Truth and Reconciliation Commission UBCIC Union of British Columbia Indian Chiefs  xiii Glossary  Aboriginal peoples ? A term used to refer to the peoples who inhabited what is now Canada prior to the arrival of Europeans. This term came into usage in Canada during the constitutional negotiations in the late seventies (Kulchyski 1994). ?Aboriginal peoples? is used in legal documents like the Constitution Act, 1982 and is broadly inclusive, describing First Nations, Inuit, M?tis, and non-status people (Culhane 1998). I use it where appropriate, primarily in a legal context.   Aboriginal rights ? Rights due to Aboriginal peoples because of their sovereignty prior to the assertion of sovereignty by Britain, France, or Canada. They are distinct rights that cannot be claimed by those who came after. Aboriginal rights can be divided into different categories. There are land and resource rights and political rights. The Aboriginal right to land is otherwise known as Aboriginal title.  Colonialism ? A practice, policy, or system in which a more powerful nation maintains or extends its authority and control over a less powerful nation or people, generally to access land and/or resources.  It may involve the implementation of various political, economic, and social policies.   First Nation ? I use this term to refer to the government of an Indigenous community. Community composition has been and continues to be affected by many factors, including colonial policies. For example, communities may be made up of extended families, villages, tribes, groups of tribes, or all members of a language group. ?First Nation? became popular in  xiv Canada, and especially in BC, after the National Indian Brotherhood changed its name to the Assembly of First Nations in 1982 (Penikett, 2006). It highlights the nationhood status of Indigenous groups and their existence prior to the colonizing state.   Indigenous peoples ? This is the primary term I use to refer to the peoples who inhabited what is now Canada prior to the arrival of Europeans. This term came into use with the establishment of the United Nations after World War II. The Independent Commission on International Humanitarian Issues includes four elements in the definition of Indigenous peoples: 1) pre-existence; 2) non-dominance; 3) cultural difference; and 4) self-identification as Indigenous (Hitchcock 1994). The term is used to describe ?marginal groups that have managed to preserve their traditions in spite of being incorporated into states dominated by other societies? (Martinez Cobo 1987 in Hitchcock 1994) and underscores a group?s persistent vulnerability (Dean and Levi 2003).  Referral ? Government agencies send referrals to other groups to request input on proposed land or natural resource authorizations or projects. These groups may be other government agencies, First Nations, or existing tenure holders.    Settler ? A person who has or whose family has immigrated to Canada in the past few centuries?a non-Indigenous person. I generally refer to settlers as non-Indigenous people because the term does not make demographic claims about who they are, but rather who they are not in this context only. For example, to some, ?settler? may connote someone whose family came several generations ago or someone who is ?white?. I use the term ?settler? in  xv situations where it is modifying a noun, such as ?settler government? (the governing body) or ?settler state? (the political power), as these governing institutions and powers are, for the most part, a product of settler colonialism. I also use ?settler? to refer to non-Indigenous people in contexts where I am drawing attention to patterns of thought that are developed in settler colonial contexts and the possibilities for decolonizing those patterns of thought.  Settler colonialism ? A form of colonialism in which colonizers desire and dispossess Indigenous peoples of their land for settlement and resource development. Initial dispossession is carried out with physical force, a variety of technologies are used to maintain the dispossession (e.g., maps, numbers, and law), and both are legitimated, justified, and reinforced through ideology and discourse about identity (Harris 2004).    Overlapping territory ? Space (both marine and terrestrial) was and is shared by neighbouring Indigenous peoples through customary law and practices. The concept of ?overlapping territory? has arisen out of Eurocentric ideas about property used in land claims processes and is an area where more than one contemporary First Nation claims title and/or rights. Overlapping territory can exist because: 1) neighbouring First Nations share territory and have not agreed how to claim it in treaty and other processes; 2) First Nations divided due to colonial policies share territory but choose to negotiate treaties separately; and/or 3) First Nations pursue territorial expansion through treaty negotiations (e.g., Sterritt et al. 1998).  xvi Acknowledgements  The journey of this PhD was long and there are so many who helped along the way. I am daunted by the task of acknowledging everyone and my sincere apologies if I have left anyone out. First, I would like to acknowledge the people who initially introduced me to and taught me about Aboriginal rights and title, filling the appalling gap in my education. All of my co-workers at Cowichan Tribes and later at the Hul?qumi?num Treaty Group had a part in this, but I would especially like to thank Luschiim (Arvid Charlie), Chuck Seymour, Tim Kulchyski, Cheri Ayers, Lydia Hwitsum, Robert Morales, and Brian Thom for their contributions to this process. I would also like to thank the Coastal Guardian Watchmen?it is an honour to work with them and the rest of the stewardship staff of Coastal First Nations communities and witness their commitment to looking after their territories. A special thank you to Claire Hutton, whose clarity about the bigger picture informed my analysis in Chapter 6, and to Sandra Thomson. My sincere gratitude goes to all of the First Nation and provincial policy- and decision-makers who agreed to be interviewed and gave of their valuable time. They took the risk of letting me record and write about their thoughts on Indigenous-state relations and reconciliation. These are not easy subjects to talk or write about, and I have tried hard to make their gifts of time worthwhile and treat their words with respect.    So many thanks to my supervisory committee: to Terre Satterfield for perfectly balancing pushing me and supporting me through seemingly never-ending setbacks, finding money to help me stay on task, helping me to understand academia and academic writing, and most of all, for caring; to Charles Menzies, for taking a chance on me, providing financial support, making me feel like my professional experience was academically valuable, being  xvii uncompromising in his perspective, and forever changing the way I view the number three; and to Coll Thrush, for being a committee member who felt more like a friend, but a friend with unquestionable insight and a trusted perspective. Funding for portions of my study and research came from the Social Sciences and Humanities Research Council of Canada, Forest Stewardship Program of the BC Ministry of Forests, and University of British Columbia. Thanks to Ralph Matthews for providing funding through his Community-University Research Partnership grant.   Thank you to all of my family and friends, whose love and support I cherish. A special thank you to Jelena Putnik for being game to embark on this and other important journeys with me. For their friendship and support in academia, I would especially like to thank: Meg O?Shea, Julia Freeman, Shannon Hagerman, Sonja Klinsky, Cynthia Morinville, Jen Karmona, and the G7 collective.  Deepest thanks to my parents, Jan and Jack Kotaska, for teaching me the value of honesty and for always being there, interested and caring, and ready to help in whatever way they can. And to DeLisa Lewis for wisdom, inspiration, and dreams realized and yet to be realized; for your support and confidence in me; and for letting me know, every day, that I am loved. To Hazel, who is the same age as this degree, and Violet, who was only three when it all began: you have taught me about love and life, reminded me what is important, and understood when I had to be at my desk instead of with you. You bring me such joy and are my hope for the future.    xviii Dedication       For Violet and Hazel ?  who make profound for me the significance of questions about justice, peace, freedom, and responsibility   1 Chapter  1: Introduction  On April 4, 2012, the Haida Gwaii Management Council announced the new allowable annual cut for Haida Gwaii, the maximum amount of timber that can be commercially harvested on the archipelago formerly known as the Queen Charlotte Islands off the North Coast of British Columbia (BC) in Canada.1 It was the first time in the history of BC that a cut was determined by anyone other than the provincial Chief Forester. In a unanimous consensus-based decision, the Management Council, a joint decision-making body established under provincial and Haida law, reduced the cut by almost half. In commenting on the determination, the President of the Haida Nation, Guujaaw, emphasized the importance of designing a sustainable future for the islands. The provincial Minister of Aboriginal Relations and Reconciliation stressed certainty for forestry operations.  Later that same year, on September 12, Coastal First Nations2, an alliance of Indigenous nations on the Central and North Coasts of BC, declared a moratorium on the trophy hunting of bears in their territories, a majority of the approximately 70,000 square kilometre area also known as the Great Bear Rainforest. After years of negotiating with the province to have trophy hunting banned, they took unilateral action. Kitasoo/Xaixais First Nation Chief Doug Neasloss stated: ?We will now assume the authority to monitor and enforce a closure of this senseless trophy hunt,? and ?We will protect bears from cruel and unsustainable trophy hunts                                                 "!#$%&$!'($%%)*!+%*,-.%/!011-($213!0445$1!65,!&3/%*%-47!+,,89::(((;43(*.--<;=->;2/;/$:?@"?:@A:+$%&$B=($%%*B+%*,-.%/B$11-($213B$445$1B/5,B&3/%*%-4;+,<1C!$//3**3&!08.%1!"D7!?@"E;!?!F+3!$11%$4/3!($*!-.%=%4$11G!/$113&!6-$*,$1!H%.*,!I$,%-4*!J!F5.4%4=!K-%4,!L4%,%$,%>3!$4&!%*!4-(!/$113&!6-$*,$1!H%.*,!I$,%-4*!J!'.3$,!M3$.!L4%,%$,%>3;!L!(%11!*%<81G!5*3!N6-$*,$1!H%.*,!I$,%-4*)7!(+%/+!%*!+-(!<-*,!83-813!.3O3.!,-!%,;!! 2 by any and all means.?3 As reported in the Globe and Mail by Mark Hume, the provincial Minister of Forests and Lands, Steve Thomson, responded to the ban by saying: ?I?m disappointed in the declaration that they have taken. Given that the province has the responsibility for setting the harvest limits, we?d ask them to respect that authority? (Hume 2012).   These two stories provide revealing snapshots of a particular moment in the history of relations between First Nations and the provincial government in BC, a time when relations are varied and rapidly changing and the focus is on, or at least the discourse is about, reconciliation. The provincial government denied Aboriginal title existed until 1990, when it reversed its policy and agreed to negotiate land claims with First Nations and Canada. In just over twenty years, the province has gone from outright denial of First Nations? governance authority to truly shared decision-making, at least in the one case with the Haida Nation. As the second vignette highlights however, it is not a story of a steady and even progression from denial to acceptance and reconciliation. It is more a story of First Nations continually fighting for their rights through all available avenues and the province conceding at times due to a variety of pressures, notably successive losses in the courts and perceived economic uncertainty caused by undefined Aboriginal rights. These two stories highlight innovative territorial co-governance and a continuing contest over governance, in which First Nations are asserting their authority in the face of provincial intransigence.                                                   E!6-$*,$1!H%.*,!I$,%-4*!&3/1$.3!2$4!-4!,.-8+G!+54,%4=!%4!634,.$1!$4&!I-.,+!6-$*,7!+,,89::(((;/-$*,$1O%.*,4$,%-4*;/$:43(*B.313$*3:*38,3<23.B"?B?@"?BPE"$<C!$//3**3&!08.%1!"Q7!?@"E;! 3 This dissertation examines relationships and reconciliation processes between First Nations and the provincial government in BC after the 1997 Supreme Court of Canada decision in Delgamuukw v. British Columbia4. Delgamuukw was a significant moment in the history of Canada, and specifically BC, because the continuing existence of Aboriginal title was affirmed in the absence of treaties, and settler governments were required by the Supreme Court to consult First Nations on decisions that might affect their lands. The resulting changes in provincial policy gave First Nations an entry point into renewed participation in territorial governance, which they have since leveraged into greater power. That power is manifest in a variety of governance arrangements, including the co-governance and Indigenous governance described in the opening stories. My research focuses on land and resource governance and because provincial governments have jurisdiction over most land and resources in Canada, I focus on relationships between First Nations and the provincial Crown.    It was in the wake of Delgamuukw that I was hired by a First Nation, Cowichan Tribes, to manage the onslaught of referrals5 from government agencies. I brought my background in ecology and environmental planning and began to learn about Aboriginal law and the history of colonialism and dispossession in BC. My professional involvement with Indigenous-state relations through consultation, treaty negotiation, and preparation for litigation led to my academic interest in reconciliation and decolonization, and ultimately this dissertation. I wanted to learn more about the history and strategies of colonization and resistance, and the                                                 A!R"SSTU!E!V6W!"@"@!R!"#$%&''()U!D!'->3.4<34,!$=34/%3*!*34&!.3O3..$1*!,-!-,+3.!=.-58*!,-!.3X53*,!%485,!-4!8.-8-*3&!1$4&!-.!4$,5.$1!.3*-5./3!$5,+-.%Y$,%-4*!-.!8.-Z3/,*;!F+3*3!=.-58*!<$G!23!-,+3.!=->3.4<34,!$=34/%3*7!H%.*,!I$,%-4*7!-.!3[%*,%4=!,345.3!+-1&3.*;!!! 4 theory related to Aboriginal rights. My research interest was shifting power in Indigenous-state relations, and specifically land and resource governance. Reconciliation emerged as an important theme both in the theory and in practice in BC.  When the purpose of colonialism is to settle land, colonizers have to eliminate Indigenous peoples in order to access their territory (Wolfe 2006). This has been attempted in a variety of ways around the world, including directly through genocide and forced removal and indirectly through assimilation. In BC, Indigenous peoples were confined onto tiny reserves over a period of several decades in the late 19th and early 20th centuries, and denied their rights to the rest of their territories (Harris 2002). As in the rest of Canada, Indigenous peoples in BC were also prohibited from self-governance and participation in industrial economies, and subject to a period of harsh and cruel assimilative and discriminatory policies. Because of a variety of circumstances at the time that BC was colonized, the British did not sign treaties with the majority of First Nations. This violated their own laws as outlined in the Royal Proclamation of 1763, and led to the finding in Delgamuukw that Aboriginal title continues to exist.    Indigenous peoples in BC were not ?eliminated? and have never stopped protesting and resisting the loss of their lands, resources, and rights to govern. Since at least the 1990s, reconciliation has become a focus of efforts to respond to the legacies of colonialism in Canada. Reconciliation can refer to many different things in the context of settler colonialism. The term often refers to improving relationships, and in the case of settler colonialism, relations can be improved between Indigenous nations and settler governments,  5 and between Indigenous and non-Indigenous people. Reconciliation also refers to making things compatible, for example Aboriginal title and Canadian sovereignty (Blackburn 2007). Precisely because of the ambiguity of the term, reconciliation can be used to refer to state policies that parade as substantive change but maintain the status quo (Short 2008, Woolford 2005, Alfred 2005).  The literature addressing Indigenous-state relations and reconciliation in BC focuses on treaty negotiations (e.g., Alfred 2000; Blackburn 2005, 2007, 2009; Egan 2012, 2013; McKee 2009; Penikett 2006; Price 2009; Rynard 2004; Woolford 2004, 2004a, and 2005). There are, however, many other types of relationships between First Nations and the provincial Crown, and all of these sites of engagement provide insight into how reconciliation is unfolding (or failing to unfold). There are several articles that look at other types of relationships between the province and First Nations, for example co-management (e.g., Booth and Skelton 2011; Goetz 2005; Mabee and Hoberg 2006), consultation (e.g., Schreiber 2006), and newer government-to-government relationships (e.g., Barry 2012). There is a large literature related to Aboriginal rights and case law, but it does not relate specifically to BC for the most part (although many of the cases involve First Nations in BC).  1.1 Research Questions and Approach This dissertation explores how reconciliation is unfolding within the context of land and resource governance within a particular place built on settler colonialism. I explore and seek to account for the changes in power relations between Indigenous nations and the settler state. Ultimately, colonialism is about the dispossession of land and resources, making  6 struggles about their governance all the more salient. Harris (2004) addresses the question of how the dispossession of land came about in BC. With this dissertation, I investigate broadly how, and in what patterned and idiosyncratic ways, the repossession of land and resource governance is coming about.  Specifically, this research addresses the following questions. ? What does reconciliation mean in the context of Indigenous rights and relationships between Indigenous nations and the state?   ? How have relationships between First Nations and the Province of BC changed since Delgamuukw? ? How is the reconciliation of Aboriginal title and Crown sovereignty unfolding in BC? ? At this moment in time, what do those who are engaged in land and resource decision-making and First Nation-BC relations understand reconciliation to entail?  My approach to these questions is categorically interdisciplinary. It draws on literature from classical disciplines such as anthropology, law, history, geography, and political science; interdisciplinary studies such as Canadian, Indigenous, and environmental studies; and applied fields such as natural resource management and public policy. This research, however, primarily joins conversations within anthropology and the interdisciplinary and applied fields listed above.     The dissertation is also informed by fifteen years of professional experience working for First Nations and First Nation organizations in land and resource management contexts, making  7 participant observation a key research method. I also interviewed twenty-one First Nation and provincial policy- and decision-makers about their understandings and perceptions of Aboriginal rights, First Nation-BC relationships, and reconciliation. In order to develop and present a comprehensive understanding of changing relationships in BC, I drew heavily on documentary evidence, including court judgments, legislation, policy documents, treaty and non-treaty agreements, reports, news releases, and newspaper coverage. And finally, I use a case study of an Indigenous territorial monitoring system to illustrate how, in addition to attempting to reconcile with the provincial government, First Nations are asserting their authority to govern their territories and strategically engaging science in that pursuit.    The research that comprises this work took place within an overarching process of interrogating research done by non-Indigenous scholars on Indigenous peoples and subjects. Insights from fieldwork have guided the course of my work and, ultimately, the content of this thesis. It was through reflecting on field experiences in Indigenous communities that I decided to turn the lens back on a community of which I was more or less a part?resource management policy- and decision-makers. This led me to the study of reconciliation within a resource management context with the ultimate goal of better defining and thereby seeking justice for Indigenous peoples in BC, Canada, and other states built on settler colonialism. Part of this research is about trying to figure out what justice might entail. I do not try to present a ?balanced? perspective, but rather a scholarly perspective drawn from an understanding of Aboriginal law, Indigenous rights, and contemporary histories of Indigenous-state relations. So, for example, when I question how we may reconcile Aboriginal title with the Crown?s asserted sovereignty, or Crown claims to sovereignty, I  8 could be charged with being biased in my perspective. I state the question this way, however, because even within the Euro-Canadian legal system, Aboriginal title derives from the more solid ground of the laws of Indigenous peoples who have occupied the land since time immemorial (Tully 2000). Crown sovereignty, however, was asserted in 1846 and is based on the racist theory that Indigenous societies were not sufficiently evolved to be worthy of title (Asch 2002). As explained by Borrows (2001, 35), ?A faithful application of the rule of law to the Crown?s assertion of title throughout the country would suggest that Aboriginal peoples enjoy the very right the Crown claims.? From an Indigenous legal perspective, clearly, Crown claims to title and sovereignty are not legitimate.   This research also took place within an ongoing personal process of decolonization that started when I began to work for First Nations fifteen years ago. It was not until then that I even realized the depth of my ignorance about the Indigenous peoples whose land I occupy, the shameful history of dispossession, attempted assimilation, and discrimination in BC and Canada, the ongoing colonial nature of Indigenous-state relations, and the continuing structural violence experienced by Indigenous peoples. The process of learning what I did not know and unlearning what I had been taught began with my colleagues at Cowichan Tribes, has continued through my work with other First Nation organizations, and was the reason I came back to academia and undertook the research that led to this dissertation. For settlers, decolonizing is, at times, an unsettling experience that requires vulnerability, humility, and a willingness to risk their comfort and their understandings of themselves, their ancestors, the stories they have been told, and their privilege (Regan 2010, Barker 2010). Writing this dissertation has been an unsettling process, as I try to find a place for my voice within  9 scholarship on reconciliation and Indigenous-state relations. And publishing this dissertation feels like a risk, as I know that I may not have it right, even certainly so, but nonetheless hope to treat with respect this subject and the work and words of others. My purpose is, ultimately, to contribute to an ongoing process of decolonizing settlers and territorial governance in BC and to join scholarly conversations about reconciliation in places built on settler colonialism.   The geographic focus of this research is BC, with particular attention given to the Central and North Coasts in the choice of the case study and interviewees. The findings about building co-governance relationships, reconciling title, and decolonizing territorial governance, however, are relevant to other countries established by settler colonialism, particularly those colonized by Great Britain, for example New Zealand, Australia, and the United States.   1.2 Structure and Contributions of the Dissertation In order to provide the historical context necessary for an examination of reconciliation, I begin the dissertation by characterizing the injustices that have been committed against Indigenous peoples in BC and Canada. Chapter 2 introduces and defines Aboriginal rights, chronicles the political relationships between First Nations and the colonial state since ?contact?6, and provides an overview of the corresponding development of Aboriginal rights theory and law. It shows how the colonial state moved through periods of recognizing,                                                 Q!L!$<!4-,!*5==3*,%4=!,+$,!,+3.3!($*!$!*83/%O%/!3>34,!-O!/-4,$/,7!25,!.$,+3.!L!$<!*%=4$1%4=!$!=343.$1!,%<3!83.%-&!%4!(+%/+!8-1%,%/$1!.31$,%-4*+%8*!23,(334!L4&%=34-5*!$4&!4-4BL4&%=34-5*!83-813*!23=$4!,-!&3>31-8;!! 10 denying, and then re-recognizing Aboriginal rights, with corresponding shifts in its policy regarding Indigenous peoples and in the strategies of resistance used by First Nations.   Chapter 3 develops the conceptual framework used to assess reconciliation processes in this dissertation. It investigates what might be required for reconciling relationships and competing claims to title where Indigenous and non-Indigenous societies coexist. I begin by reviewing the literature on reconciliation processes that have emerged in response to genocide and mass violence in the post-Cold War era. I then consider the specific case of settler colonialism, where problems arise with both the concept and processes of reconciliation. I review how these problems may be overcome and suggest some requirements for ?genuine? reconciliation, which is ultimately an ongoing process of decolonizing settlers and their governments and institutions. These requirements are then brought into the sphere of territorial governance, resulting in two possible decolonizing jurisdictional arrangements: Indigenous territorial governance and co-governance of Indigenous territories. Some of the critiques of co-management in the literature are used to explore the decolonizing potential of co-jurisdictional models.   With the historical and theoretical groundwork laid, I begin an examination of contemporary relationships between First Nations and the BC government in Chapter 4. I use the idea of engagement strategies?such as litigation, consultation, or treaty negotiation?to structure my examination of how relationships change and new relationships emerge after Delgamuukw. The chapter explores the efficacy of the different strategies for each party in meeting its territorial governance goals and I assess whether the changes in relationships that  11 have occurred since Delgamuukw meet the requirements for genuine reconciliation. Chapter 5 further examines the changing relationships between First Nations and BC, but this time from the perspective of people involved in those relationships on a day-to-day basis?First Nation and provincial policy- and decision-makers in coastal BC. I use their answers to questions about colonialism, Aboriginal rights, and current relationships, to explore their perceptions of how power is shifting and whether relationships are still colonial.   In Chapter 6, I return to the decolonizing jurisdictional arrangements laid out in Chapter 3 and examine a case of Indigenous territorial governance on the North and Central Coasts of BC. I present the Coastal First Nations Regional Monitoring System as an example of a contemporary Indigenous approach to territorial governance that does not require First Nations to submit to state-defined reconciliation processes. First Nations are simply asserting their authority in governing their territories and managing their resources. By developing and using the Regional Monitoring System, First Nations are choosing to employ science, both practically and strategically, to achieve their stewardship and territorial governance goals.   Chapter 7 is an in depth exploration of reconciliation in the context of territorial governance in BC using my interviews with policy- and decision-makers. Importantly, they see reconciliation as an incremental and ongoing process that focuses on co-governance and not treaty settlement, at least not in the short term. Many felt that by reconciling relations in an ongoing process of co-governance, the need to reconcile competing claims to title may be eliminated. The components of reconciliation that interviewees emphasized were building  12 relationships and trust, creating sustainable economies for First Nations, co-governing with a common vision, and building capacity.     And finally, in Chapter 8, I pull together the answers to my research questions from throughout the dissertation and look at implications of this research for the study of reconciliation, and for other places seeking to address the legacies and injustices of settler colonialism. I present some future avenues of research on reconciliation in British Columbian, Canadian, and comparative contexts.   This dissertation makes both theoretical and empirical contributions to the study of reconciliation and decolonization. Theoretically, it advances a framework for assessing reconciliation processes in places built on settler colonialism. Also, it applies the framework drawn from the reconciliation literature to the context of land and resource governance to advance requirements for decolonizing territorial governance. Empirically, this research makes three specific contributions. First, it brings together documentary evidence and interview material to develop an understanding of shifting power relations in contemporary First Nation-BC relationships. Second, it provides a case study of Indigenous territorial governance, or reconciliation through assertion of sovereignty, placed within a framework of decolonization. Finally, the dissertation contributes a comprehensive understanding of reconciliation as it is currently and arguably occurring outside the BC treaty process, filling a gap in the scholarship on Indigenous-state relations in BC, which has to date focused almost exclusively on the treaty process.   13 1.3 Notes on Terminology Throughout this thesis, I use different terms to refer collectively to the various peoples who inhabited the place that is now called Canada before the arrival of Europeans. Each term has a different history and carries different connotations. I usually use the term ?Indigenous peoples?, a term that came into use with the establishment of the United Nations after World War II. It has replaced many of the words that were tied to evolutionist thinking, such as ?native? or ?tribal? (Dean and Levi 2003). The Independent Commission on International Humanitarian Issues includes four elements in the definition of Indigenous peoples: 1) pre-existence; 2) non-dominance; 3) cultural difference; and 4) self-identification as Indigenous (Hitchcock 1994). The term is used to describe ?marginal groups that have managed to preserve their traditions in spite of being incorporated into states dominated by other societies? (Martinez Cobo 1987 in Hitchcock 1994) and underscores a group?s persistent vulnerability (Dean and Levi 2003).   I sometimes use the term ?Aboriginal peoples?, particularly in the Canadian legal context.  ?Aboriginal peoples? is a term that came into usage in Canada during the constitutional negotiations in the late seventies (Kulchyski 1994). The word ?aboriginal? is generally synonymous with ?indigenous? or ?native?, and means original, first, or naturally occurring. ?Aboriginal peoples? is used in legal documents like the Constitution Act, 1982 and is broadly inclusive, describing First Nations, Inuit, M?tis, and non-status people (Culhane 1998).    14 ?First Nations? is a term that has recently become popular in Canada, and especially so in BC, after the National Indian Brotherhood changed its name to the Assembly of First Nations in 1982 (Penikett, 2006). It highlights the nationhood status of Indigenous groups and their existence prior to the colonizing state. I use ?First Nation? when referring to Indigenous nations or governments in BC.   The term ?Indians? arose out of an error of geography that stuck for centuries. When Christopher Columbus landed in the Caribbean in 1492, he thought he was in India and therefore called the people he encountered ?indios?, or in English, ?Indians?. It is a term that was widely used in Canada for over a century and is still used in legal documents and the legal names of some First Nations? administrations. Some First Nations choose to continue to use the term, but most have replaced it with First Nation, or just ?nation?, at least in common usage. I use this term if appropriate in a historical context.   I also use a variety of terms to refer collectively to the people who have come to North America in the past few centuries. I generally use the term ?non-Indigenous? because it does not make demographic claims about who newcomers are, but rather who they are not, avoiding some of the concerns with other terms that may tend toward homogenizing or essentializing. Because this dissertation addresses the distinct rights of Indigenous peoples, it is the lack of those rights that is important when I refer to non-Indigenous people.  This dissertation considers reconciliation in places that have been built on settler colonialism. People came?and continue to come?to stay, and colonial governments used force, among  15 other things, to gain control of the land and resources, creating a particular set of circumstances that requires reconciling. I use the term ?settler? in situations where it is modifying a noun, such as ?settler government? (the governing body) or ?settler state? (the political power), as these governing institutions and powers are, for the most part, a product of settler colonialism. I also use ?settler? to refer to non-Indigenous people in contexts where I am drawing attention to patterns of thought that are developed in settler colonial contexts and the possibilities for decolonizing those patterns of thought. Finally, I use ?colonial? in historic contexts and when I want to emphasize continuing imbalances of power.  16 Chapter  2: The Roots of Injustice Lie in History  The roots of injustice lie in history and it is there where the key to the regeneration of Aboriginal society and a new and better relationship with the rest of Canada can be found. (Erasmus 1996)7  Either we stumble on, ever more frustrated that our society doesn?t function as it should, or we start to rethink our history, to re-examine it. If we look, we will discover the First Nations, the Metis and the Inuit at its core. We have to learn how to express that reality, the reality of our history?Our challenge is to learn how to recognize what we have trained ourselves not to see. We must remove the imaginative and historical veils that we have used to obscure this reality. (Saul 2008, 35)  I was born and raised on Musqueam, Tsleil-Waututh, Tsawwassen, and Squamish land in the Greater Vancouver area of BC. Until I was an adult, I knew nothing about these peoples or their rights and title. The only recollections I have of Indigenous people and life in BC from my childhood are of occasionally walking through the reserve or encountering sh?sh?lh in Sechelt, where my family had a cabin. It was not until I was in my twenties that I spent any time with Indigenous people. In 1992, I was part of a group?including three Indigenous people from Ecuador, Papua New Guinea, and the Philippines?that travelled to and met with representatives of several First Nations in BC. The purpose of the tour was to connect members of Indigenous communities from different countries who were working to secure and protect their forest lands, and share stories and strategies. One particularly poignant memory was standing on the banks of the Skeena River with Maas Gaak (Don Ryan), hearing stories about the Gitxsan and Wet?suwet?en Aboriginal title case, and receiving copies of the Reasons for Judgment in Delgamuukw v. the Queen and Colonialism on Trial. I                                                 T George Erasmus, 1996, in the address for the launch of the report of the Royal Commission on Aboriginal Peoples, http://www.aadnc-aandc.gc.ca/eng/1100100014639/1100100014640, accessed December 29, 2012   17 did not understand the significance of the documents at the time (but kept them through myriad moves), nor did I have a clue about the impact the subsequent Delgamuukw decision would have on my life.  It was in the wake of the Supreme Court of Canada ruling in Delgamuukw that the Cowichan Tribes created the Environmental Advisor position that I filled in 1998. When I began that job, I could not have defined Aboriginal rights or title, but for the following six years, I worked with Cowichan and the other Hul?qumi?num nations to assert and defend their rights and title through consultation, negotiation, and litigation. That experience made me acutely aware of the void in my education regarding the history of colonialism and dispossession in my homeland and around the world. It was this void that I sought to fill by returning to do my PhD after almost ten years away from academia.   In her book, Unsettling the Settler Within, Paulette Regan explores how, for settlers, learning about their colonial past can be achieved in a way that is decolonizing and transformative. Her book focuses on the residential school system and related reconciliation processes, such as Prime Minister Harper?s apology to survivors and Canada?s Truth and Reconciliation Commission. She asks the following questions.  Perhaps we, as non-Indigenous people, can begin by asking ourselves some troubling questions. How is it that we know nothing about this history? What does the persistence of such invisibility in the face of the living presence of survivors tell us about our relationship with Indigenous peoples? What does our historical amnesia reveal about our continuing complicity in denying, erasing, and forgetting this part of our own history as colonizers while pathologizing the colonized? How will Canadians who have so selectively forgotten this ?sad chapter in our history? now undertake to remember it? Will such remembering be truly transformative or simply perpetuate  18 colonial relations? Surely, without confronting such difficult questions as part of our own truth telling, there can be no genuine reconciliation. (Regan 2010, 6)  Similar questions can be asked about BC?s broader history of colonialism and dispossession. How is it that a majority of British Columbians do not know that the lands they call home have never been ceded by First Nations and that the Crown?s claims to sovereignty rely on very weak and racist legal arguments? Why is it that they do not question how it is that Indigenous peoples ended up on reserves as wards of the state, continually fighting for their lands, resources, and self-government? It is easy for settlers, who continue to reap the benefits of colonialism, to say, ?Maybe some bad things happened in the past, but that was a long time ago. We have to look forward.?  This dissertation is focused on two aspects of reconciling the history of colonialism and dispossession in BC: possibilities for decolonizing the relationship between First Nations and the provincial government and for reconciling Aboriginal title and rights with Crown claims to sovereignty. It does not explore in depth how we might improve relationships between Indigenous and non-Indigenous peoples generally. That said, for settlers to seriously consider the first two aspects of reconciliation, they must first consider and begin to come to terms with their complicated relationship with their colonial past and present. The first step in decolonizing is questioning the legitimacy of colonization (Wilson and Yellow Bird 2005). One aspect of this questioning involves examining how colonization took place.   19 I know I am not unique in my experience of being ignorant of Canada?s history of oppression and attempted elimination8 of Indigenous peoples and dispossession of their lands and resources, despite having been born and raised on Indigenous land in BC. Canada?s history of colonialism is actively hidden and denied, in the school system, in popular media, and by politicians. In fact, just over a year after delivering his apology to survivors of Canada?s residential school system, Stephen Harper bragged during a press conference at the G20 Pittsburg Summit that Canada has ?no history of colonialism? (quoted in Hui 2009). National Chief Shawn Atleo of the Assembly of First Nations released a statement in response to the Prime Minister?s comment, saying in part:  The Prime Minister?s statement speaks to the need for greater public education about First Nations and Canadian history. It may be possible to use this moment to begin bridging this gulf of misunderstanding. The future cannot be built without due regard to the past, without reconciling the incredible harm and injustice with a genuine commitment to move forward in truth and respect. (quoted in Hui 2009)  My purpose with this chapter is to give due regard to the past by providing a historical overview of Indigenous-state relations in Canada and BC. I begin by introducing and defining Aboriginal rights, a legal means of addressing the prior existence of Indigenous peoples in states built on settler colonialism. I then look at how the colonial state has moved through periods of recognizing, denying, and then re-recognizing Aboriginal rights, and how colonial policy regarding Indigenous peoples has changed correspondingly. Given that colonial forces have been significantly more powerful than First Nations since the early 19th                                                 P Wolfe (2006) explores the relationship between genocide and the settler-colonial tendency he terms ?the logic of elimination?. He explains how ?elimination? of Indigenous peoples is motivated by gaining access to territory and is attempted through myriad means, including encouraging miscegenation, breaking native title into individual freeholds, child abduction, religious conversion, resocialization in institutions, and frontier homicide.  20 century, avenues for Indigenous resistance to colonialism have been dictated to a large degree by colonial policy. I consider First Nations resistance within this context.  The arguments I make in this dissertation rely on an understanding of the injustices committed against Indigenous peoples in BC, injustices that must be addressed if we are to reconcile relationships between First Nations and the state. Corresponding with my focus on decolonizing territorial governance, this chapter presents some of those injustices, especially those related to land and resources. It looks at a question that settlers might ask, ?What was done in our name, our nationhood??9 The period of Indigenous-state relations covered by this chapter is from contact until Delgamuukw; Chapter 4 looks closely at the period after Delgamuukw.  Settler responses to learning more about Canada?s history of colonialism and dispossession are varied and complex, and may include denial, guilt, or empathy, all of which can act as barriers to transformative socio-political change (Regan 2010). Regan argues that settlers should not respond by trying to solve the ?Indian problem?, but keep the focus on their own attitudes and collective responsibility for the colonial status quo and try to solve the ?settler problem?. A just reconciliation requires decolonization, which must begin with the unsettling process of settlers decolonizing themselves.                                                  S Kwame Anthony Appiah?s formulation expressed in a planning meeting for the Facing History and Ourselves conference, cited in Minow 1998, 131.  21 2.1 Aboriginal Rights The fundamental problem to which Aboriginal rights seem to be an answer is the coexistence of Indigenous and colonial societies on the same territory (Ivison et al. 2000). In order to understand how we came to be in the legal and political situation we are now in and how to move forward, we need to know about the development of Aboriginal rights in Canada and continuing struggles surrounding their recognition and infringement. With this knowledge, we can consider how to reconcile Indigenous rights, title, and sovereignty with settler claims to title and governance.    What are Aboriginal rights? I will start with some basic definitions. Rights are things due to someone by just claim, legal guarantee, or moral principles. They are also powers or instruments to secure or promote individual and group interests (Ivison et al. 2000). Aboriginal rights are those rights that are due to Aboriginal peoples because of their sovereignty prior to the assertion of sovereignty by Britain, France, or Canada. These are distinct rights that cannot be claimed by those who came after. Aboriginal rights are different from human rights: rights to which people are entitled simply because they are human. Obviously, Indigenous peoples are entitled to human rights, but they are also entitled to a distinct set of rights, rights specific to their situation as unjustly colonized peoples continuing to live in their homelands.    Another distinction between human rights and Aboriginal rights, at least as defined by the Canadian courts, is that human rights are individual rights, whereas Aboriginal rights are held collectively. As explained by Webber (2000; 71) in relation to the right to title, ?the  22 ?collective? nature of Indigenous title is an implicit recognition of the political and legal autonomy of Indigenous societies, not a description of the actual form of landholding practiced within them.? In theory, the internal governance of those collective rights can be left to the community holding them.  Aboriginal rights can be divided into different categories. First, there are land and resource rights. The Aboriginal right to land is called Aboriginal title. Some of the more commonly considered Aboriginal resource rights are hunting, fishing, trapping, and plant harvesting. The other main category of Aboriginal rights is political rights, which include the right to self-government and a variety of freedoms, such as the freedom to move across borders, freedom of religion or spirituality, and freedom from taxation (Kulchyski 1994).  What are the origins of Aboriginal rights? As stated by Justice Judson in the Supreme Court of Canada title case, Calder et al. v. Attorney-General of British Columbia10, ??the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries??11 The origin of Aboriginal rights is in the activities and laws of Indigenous peoples before the arrival of colonizing states. As described by Borrows (2010), Indigenous peoples are diverse and their laws flow from many sources, including sacred teachings, naturalistic observations, positivistic proclamations, deliberative practices, and local and national customs. He also describes how the oral transmission of Indigenous laws allows flexibility and relevance amidst changing circumstances, sustains connections to underlying cultural foundations, and retains connectivity to a living                                                 "@!R"STEU!V6W!E"E!R*%#+",U!!""!*%#+",!$,!E?P;! 23 community. Legal ideas are sometimes recorded using mnemonic devices, like wampum belts, masks, totem poles, medicine bundles, culturally modified trees, birch bark scrolls, petroglyphs, button blankets, land forms, and crests, and these ?can be supplemented by practices which include such complex customs as pre-hearing preparations, ceremonial repetition, the appointment of witnesses, dances, feasts, songs, poems, the use of testing, and the use and importance of place and geographic space? (Borrows 2010, 57).  Indigenous interests need only be described as rights in the face of colonization. ?It is generally the case that the articulation of rights is prompted by some threat or perceived challenge. If there is no threat, why bother articulating it as a right? It is simply the way things are? (Webber 2000; 64). Thus, while interests are fundamental, rights are epiphenomenal, described and shaped by superimposed legal systems (Webber 2000). As the colonizers? legal system only captures a subset of social norms, the content of Aboriginal rights is contested and the result is always some sort of accommodation and not the protection of the Aboriginal interests themselves (Webber 2000). In addition, Indigenous laws and customs continue to evolve and, in recognizing that the origin of Aboriginal rights is in Indigenous laws and customs, the superimposed legal system needs to allow for that evolution (Webber 2000).    The theory underlying Aboriginal rights uses the language of western political and legal thought and not the conceptions of Indigenous peoples, though for strategic reasons, they are constrained to use it (Tully 2000). Indigenous peoples have their own theories and languages, and though ?these two languages are not closed, incommensurable or independent of each  24 other,? they are ?massively unequal in their effective discursive power in the present? (Tully 2000; 37). Using the term ?rights? imposes one peoples? ideas on another and gives power to lawyers and state actors (Shipton 2003). In order for Indigenous peoples to advance their claims, however, there seems to be no alternative to adopting the language of rights and working within the dominant legal and political system.  Despite the fact that Aboriginal rights are articulated using the legal system and language of the colonizing society, they are an implicit recognition of the existence of both an Indigenous and non-Indigenous legal system. Within Canadian case law, Aboriginal rights are described as sui generis, or unique and different from other common law rights.  Borrows and Rotman (1997: 3) argue that ?the essence of Aboriginal rights is their bridging of Aboriginal and non-Aboriginal cultures? and that by describing them as sui generis, there is a recognition of both Aboriginal and non-Aboriginal conceptions and laws. ?Categorizing Aboriginal title as sui generis allowed the court to recognize the confluence and co-existence of Indigenous and English laws and protect those rights which flowed from pre-existing Indigenous legal systems? (Borrows and Rotman 1997: 7).  The concept of Aboriginal rights has shifted as the relationship between Indigenous peoples and Europeans, and later the colonial and then Canadian state, changed from the times of early contact with Europeans to the present.    2.2 A History of Indigenous-State Relations in Canada Although above I give a rather straightforward and seemingly factual account of Aboriginal rights, the truth is that ?the concept of Aboriginal rights is in the process of evolution? (Bell  25 & Asch 1997; 38). Understandings of the origins, nature, continuing existence, content, and implications of Aboriginal rights vary over time and with one?s interests, whether First Nation, colonial, federal, provincial, or other. In this section, I trace an evolution in thinking about Aboriginal rights over time, mostly from the perspective of the Canadian state. Aboriginal positions on their rights have not changed as much over time, though strategies for pursuing recognition of those rights have necessarily changed as avenues have opened and closed within the dominant legal and political system. I have broken this account into three sections, corresponding to periods of recognition or denial of Aboriginal rights by the European and then Canadian state: 1) recognition and colonization; 2) denial and attempted assimilation; and 3) recognition and talk of reconciliation. Others have also divided Canada?s colonial history into stages (e.g., Armitage 1995 and Miller 1990 in Havemann 1999; Penikett 2006); the periods described by the Royal Commission on Aboriginal Peoples (RCAP) correspond most closely to mine. Their four periods are: separate worlds, contact and cooperation, displacement and assimilation, and negotiation and renewal. As I am looking at the relationship between Indigenous peoples and the state, I have not included the pre-contact period. Also, my periods are titled according to the colonizers? response to Aboriginal rights and the relationship between Indigenous peoples and the state.  As described earlier, Aboriginal interests need only be described as rights in the face of colonialism. There were many dimensions to the process of colonialism imposed by European nations in what is now North America. Some of the main ones include: 1) direct destruction of societies by disease and war; 2) forced replacement of traditional governments with foreign ones, including new forms of self-rule; 3) settler displacement of native  26 population to reserves and appropriation of their territories; 4) treaty-making (Tully 2000); and 5) forced assimilation through residential schools. Both the colonizing society and Indigenous peoples used varying strategies to advance their interests within this system of colonization. Once settlement began, the colonizers sought to extinguish Indigenous peoples either by assimilation or by denying or extinguishing their rights. First Nations continually worked both against the system, in the name of self-determination, and within the system, by internal contestation of colonizing strategies (Tully 2000). In his summary of how colonial powers were used to dispossess Indigenous peoples of their lands and resources, Cole Harris offers the following conclusions.  My conclusions are these: the initial ability to dispossess rested primarily on physical power and the supporting infrastructure of the state; the momentum to dispossess derived from the interest of capital in profit and of settlers in forging new livelihoods; the legitimation of and moral justification for dispossession lay in a cultural discourse that located civilization and savagery and identified the land uses associated with each; and the management of dispossession rested with a set of disciplinary technologies of which maps, numbers, law, and the geography of resettlement itself were the most important. (Harris 2004; 165)  All of these different modes of colonial power?physical, economic, cultural, and administrative?continue to be used to keep the colonial system in place, deny Aboriginal rights, and resist a just reconciliation in BC.   2.2.1 Recognition and Colonization The history of contact between Indigenous peoples and Europeans varies with geography. European explorers and traders reached the east of what is now Canada much earlier than they reached the west. Although there is evidence of much earlier visits by Nordic peoples, the Portuguese, English, and French began making trips to what is now Eastern Canada in the  27 late 15th century and the French began to settle in what became New France in the 17th and 18th centuries. Britain established the Hudson?s Bay Company and controlled Newfoundland and the colonies to the south. France and Britain fought for much of the 17th and 18th centuries, with Britain gaining control of most of Eastern Canada at the end of the Seven Years War in 1763.    On the west coast, in what is now BC, there was contact with Russian, Spanish, and then British explorers and traders in the late 18th century, approximately three hundred years later than on the east coast. Europeans mostly used the area for trade until the middle of the 19th century, when settlement began in earnest, about 250 years later than on the east side of Canada. The European worldview generally, and conceptions of Indigenous peoples specifically, changed over the period between European settlement in the east and west of Canada. This led to different experiences of contact and colonization on each coast.    As described by Borrows (1997), power relations between First Nations and settlers in what is now Eastern Canada in the 18th century were quite different from what they are now. First Nations had not been conquered and their military and economic power could still assert a strong influence over colonial affairs. In order to maintain peace, the French and then the British had to give gifts to First Nations in return for sharing their lands. Implicit in activities like gift-giving, and explicit in the writings of colonial officials at the time, was a recognition by Britain of the sovereignty and rights of First Nations.    28 The Royal Proclamation of 1763, arguably the founding document for Aboriginal rights in Canada, was issued by King George III at the end of the Seven Years War to establish the governing boundaries and administration of Britain?s new lands in North America. A good portion of the document deals with Aboriginal interests, but in contradictory ways. The Royal Proclamation acknowledges that Indians have not ceded their territories, but claims dominion over those same territories, foreshadowing the contradictions inherent in 20th century court judgments that acknowledge that Aboriginal title existed prior to the assertion of Crown sovereignty, yet do not question the validity of that Crown sovereignty.  The Royal Proclamation also outlines what Britain saw as the process for obtaining First Nations? lands.    ?if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie?  Depending on one?s perspective, the Royal Proclamation can be seen as a document that undermines or strengthens First Nations? rights. It established a process for dispossessing First Nations of their lands, but also implicitly acknowledged Aboriginal title. The Royal Proclamation was never revoked and is later referenced in Section 25 of the Canadian Charter of Rights and Freedoms, passed as part of the Constitution Act (1982).  In addition to trying to understand the colonial meanings attached to historical documents, it is also important to discern Indigenous meanings and the context in which agreements were made. As Indigenous peoples? literacy was orally based, one must to examine other sources  29 to understand the context of agreements that were made between First Nations and settlers, for example written accounts of speeches given by chiefs, physical symbols, and the conduct of the parties before and after the agreement (Borrows 1997). We can get an understanding of First Nations? perspectives on sovereignty by examining the context in which the Proclamation was presented to First Nations. Borrows (1997) suggests that the Proclamation became a treaty at a conference in Niagara attended by approximately two thousand chiefs from over twenty-four nations. The Proclamation was read, speeches were made, gifts were given, and a two-row wampum belt was used by First Nations to demonstrate their understanding of their relationship with settlers. Wampum belts were used by various nations in what is now Eastern Canada to document the details of treaties or other agreements between nations. As described by Chief Jake Thomas in 1998:  The Two Row represents two nations living side-by-side, separately but together, each moving along its own path but never crossing into the other. Each nation respects the other and lives independently and peacefully in co-existence. The Two Row includes the Great Law of Peace, which is our constitution. What this treaty says is that it respects our nation. It respects our constitution, our laws, our government, our land ? everything. And we must respect the other nation in the same way.12  In the period between the issuance of the Royal Proclamation in 1763 and Confederation in 1867, the colonial government made a series of land purchases from First Nations, following the guidelines in the Proclamation, and in so doing, developed a treaty process. As outlined by Surtees (1986), this treaty system contained the following procedures.  First, payment for land was made to the First Nation, generally as a lump sum until 1818, when it was replaced with an annuity. Second, hunting, fishing, and occupancy rights were retained by the First Nation. These rights were not included in written agreements until 1850, but were clearly                                                 "? http://www.ainc-inac.gc.ca/al/hts/res/pubs/ont/ont-eng.asp (Accessed June 12, 2009)  30 understood and recorded in treaty negotiation minutes. Third, some lands were reserved exclusively for Indian use, generally sites of villages and fisheries. After confederation, treaty-making continued until 1930, mostly with the so-called ?numbered treaties?. In the view of the government, the purpose of treaties was to extinguish Aboriginal title. Some First Nations saw the treaties as agreements of peace and friendship; others accept that their title was extinguished but argue that their treaty rights go well beyond the understandings in written documents (Kulchyski 1994). Those First Nations that signed treaties have specific rights called treaty rights, which, in addition to activities such as hunting and fishing, and depending on the terms of the treaty, can include things such as health care and education (Kulchyski 1994). Treaty-making was and is another clear recognition by colonial and subsequent governments that Aboriginal rights and title existed.    Although the motives and conduct of the early colonists were questionable and often dishonourable, there are aspects of their relationship with First Nations in this early period that may give some value to a pursuit of reconciliation. Early colonists recognized Indigenous title and followed Indigenous laws. Indigenous people, for their part, made clear how they viewed their relationship with the newcomers in symbols like the two-row wampum.    2.2.2 Denial and Attempted Assimilation In the early part of the 19th century, the relationship between First Nations and colonists began to shift and European settlers began to gain significantly more power. As described by the Royal Commission (RCAP 1996), there were four main reasons for this: 1) European  31 settlers began to outnumber Aboriginal people; 2) the focus of the colonial economy changed from the fur trade, which depended on Aboriginal people?s labour, to timber, minerals, and agriculture, which required their land; 3) Europeans no longer required First Nations as military allies as the continent entered peaceful times; and 4) an ideology of European superiority began to take hold within the minds of settlers. The relationship of mutual respect and relatively equal power that characterized much of the early period of European intrusion into North America turned into a relationship of European domination and First Nations resistance. European recognition of First Nations sovereignty and rights morphed into denial of those rights and attempted assimilation of First Nations people into European cultures.    Britain ?created? the colony of Vancouver Island in 1849 and the colony of BC in 1858, around the time colonists were moving into their period of denial of Aboriginal rights and adopting policies of assimilation. As described in detail by Harris (2002), the Colonial Office in Britain had entered a period of uncertainty and inconsistency with respect to Aboriginal title, and it was left up to officials in the colonies to deal with as they saw fit. Other than fourteen treaties?covering less than 3% of the land?signed by James Douglas on Vancouver Island between 1850 and 1854, and Treaty 8 spilling over from Alberta in the northeast of the province (signed with the Dene in 1899), there were no agreements between First Nations and the colonizers in what is now BC (Harris 2002). BC joined the Dominion of Canada in 1871 and ?responsibility for Aboriginal people shifted, in principle, from the Colonial Office in London to the department of the interior in Ottawa?? (Harris 2002, 71). In a long struggle between the federal and provincial government, lasting from 1850 to 1938, and against the protests of First Nations, 1,536 Indian reserves were created and transferred  32 to the federal government, comprising a mere 835,339 acres of land, or about a third of one percent of the land in the province (Harris 2002). The provincial and federal governments considered the rest of the province to be open for them to do with as they chose.    2.2.2.1 19th Century Legislation In the 19th and early 20th Centuries, colonial thought about Aboriginal people was that they would either assimilate??civilize??or die out, and that the responsibility of the colonial state was to look after them until either of those outcomes was realized.    [The] national vision was the same for all Aboriginal people, whether men, women or children, 'status' or 'non-status', Indian, and M?tis or Inuit. As their homelands were engulfed by the ever expanding Canadian nation, all Aboriginal persons would be expected to abandon their cherished lifeways to become 'civilized' and thus to lose themselves and their culture among the mass of Canadians. This was an unchanging federal determination. The long-serving deputy superintendent general of Indian affairs, Duncan Campbell Scott, assured Parliament in 1920 that "Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question" (RCAP 1996a).  In the 19th century, the colonial policy of assimilation was called enfranchisement, which referred to a process by which Indian people who met certain conditions could be ?freed? from their Indian status and become Canadian citizens. The first legislated version of enfranchisement was the Gradual Civilization Act (1857), later amended by the Gradual Enfranchisement Act (1876), which, because voluntary enfranchisement was not popular with Indians, added new measures to speed up the process, including involuntary enfranchisement of Indian women who married non-Indian men (Indian Claims Commission 1998). These assimilationist policies were openly reflected in the Indian Act until the enfranchisement provisions were repealed in 1985.  33  The British North America Act (1867), which was the legislation that accomplished Confederation, made little mention of Indigenous peoples, except in Section 91(24), which stated that Indians and lands reserved for Indians were (and continue to be) a federal responsibility. As described by the Royal Commission:  Parliament took on the job [of regulating Indians] with vigour - passing laws to replace traditional Aboriginal governments with band councils with insignificant powers, taking control of valuable resources located on reserves, taking charge of reserve finances, imposing an unfamiliar system of land tenure, and applying non-Aboriginal concepts of marriage and parenting. These laws, and others, were codified in the Indian Acts of 1876, 1880, 1884 and later. The Department of the Interior (later, Indian Affairs) sent Indian agents to every region to see that the laws were obeyed.  (RCAP 1996)  The first Indian Act was passed in 1876 and it has been amended many times since then, adding sections to control more activities of Indigenous peoples or repealing sections to temper the most racist and destructive aspects, depending on the objectives of government at the time. In describing the Indian Act, White et al. (2004; 35 and 42) suggest that it ?attempts to govern most aspects of Aboriginal life and affairs both on and off the land reserved for Aboriginal Peoples? and that it ?is not a document that conveys rights, but instead defines the federal government?s relationship with Canadian Aboriginal People in administrative terms.? Like other 19th century legislation related to Indigenous peoples, the Indian Act was assimilationist and paternalistic (Isaac 2004), and denied them their Aboriginal rights, and in many cases their human rights as well.     It is hard to say which aspects of the Indian Act were most destructive to Indigenous peoples and societies, but, with respect to governance in coastal BC, the 1884 amendment banning  34 the potlatch had an impact, though potlatching and feasting continued despite the ban. Similarly, the banning of the sundance in 1885 had a profound effect on Prairie nations (RCAP 1996). The ban on the potlatch was not lifted until 1951.  2.2.2.2 19th Century Case Law In this period of increasing denial of Aboriginal rights and attempted assimilation of Indigenous peoples by the colonial and then Canadian state, the courts were attempting to define Aboriginal title. Although the first important case involving Aboriginal title in Canada was not until 1888, Canadian judges drew (and continue to draw) on earlier international cases in making their decisions. From the colonial perspective, one of the main questions plaguing Aboriginal law is how the Crown gained sovereignty. In all of the Aboriginal title decisions, the courts have held that the Crown has sovereignty, and then attempted to define Aboriginal title within that context. But how did the Crown gain sovereignty?    Seventeenth century British legal rules for acquiring sovereignty were developed in a 1608 judgment in Calvin?s Case, which stated that if the territory being claimed by a Christian nation was not Christian, the claim for sovereignty was valid (Culhane 1998). Over the following century, the rules were further elaborated and then set out in a 1722 memorandum from the Privy Council of Great Britain. In a situation involving uninhabited land (terra nullius), the doctrine of discovery applied and Britain could simply proclaim sovereignty. Where there were Indigenous peoples, Britain was to gain sovereignty by military conquest or negotiation of treaties (Culhane 1998).        35 Because the land was clearly occupied by Indigenous peoples at the time the Crown asserted sovereignty, in areas where there are no treaties, Canada has used a ?certain elasticity of logic? and ?19th century racist evolutionary theory? (Asch 2002; 24 and 25) to argue that the Indigenous peoples were not worthy of rights and so the land could be assumed to be terra nullius. The legal rationale for assuming terra nullius derives from an 1818 judgment of the Law Lords of the Privy Council of Great Britain, Re Southern Rhodesia13, where they put forward a scale of social organization to estimate the rights of Indigenous peoples, stating that some tribes are ?civilized? and have rights similar to those in English law and some are ?too primitive? to have recognizable rights. Canadian courts adopted this approach, deciding that Indigenous peoples were too primitive to have sovereignty or underlying title (Asch 2002). Thus, in the perspective of the courts for about a century, the land that was to become Canada was terra nullius and therefore available for the assertion of Crown sovereignty.  The Marshall trilogy, an early 19th century series of cases decided by Justice Marshall in the southern United States, was also used by Canadian courts to defend the doctrine of discovery. As stated by Justice Marshall in Johnston v. McIntosh14, ?absolute ultimate title [was] considered [in international law] as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring.?15 Bell & Asch (1997; 45-46) explain that ?the theory informing this analysis is that Aboriginal lands could be considered vacant and subject to discovery because of the method of Aboriginal land use and the superiority of English institutions. Cultivation and settlement was labour                                                 "E!R"S"SU!0;6;!?""!"A!?"!\;V;!]P!^+3$,;_!DS?!]"P?E_!R-./012.0345367802.1/U!"D!-./012.0345367802.1/!%4!M311!`!0*/+!"SST7!AD;! 36 worthy of reward, but roaming the land like ?savages? was not.? Although subsequent U.S. decisions limited the doctrine of discovery (e.g., Worcester v. Georgia) and despite substantial academic commentary, until the late 20th century, Canadian courts still cited Johnston v. McIntosh to support the legal presumption of Crown sovereignty (Bell & Asch 1997). Surprisingly, some of the fundamental principles in Canadian Aboriginal rights law still stem from the decision in Johnson v. McIntosh in 1823.  The evolution of European philosophy underlying arguments about rights, terra nullius, and colonial attitudes, has been traced back to 17th and 18th century thinkers such as Thomas Hobbes, Jean-Jacques Rousseau, and John Locke (e.g., Shipton 2003; Harris 2002; Harris 2004; Culhane 1998). It is usually Locke?s labour theory of property that is used to describe the colonial mentality regarding Aboriginal title in the 19th century.   Locke held that God?s gift of land to Adam and his posterity acquired value only as labor was expended on it, and that labor justified individual property rights. Those who did not labor on the land wandered over what Locke called unassisted nature, land that yielded little and lay in common. This, he thought, was the condition of America before European settlers arrived (Harris 2004; 171).  The first important case involving Aboriginal title in Canada was St. Catherine?s Milling and Lumber Co. v. R.16 in 1888. In that case, drawing on an interpretation of the Royal Proclamation, Indian tenure was described as a ?a personal and usufructuary right dependent upon the good will of the Sovereign.? The court decided that Aboriginal rights were created?not recognized?by the Crown (Culhane 1998). The view of Aboriginal title derived from that case was: 1) it could not be alienated except to the Crown; 2) it was less                                                 "Q![1888] 14 App. Cas. 54 [St. Catherine?s Milling]! 37 than a fee simple title; 3) the Aboriginal people holding the title had a right to occupy and use the land; 4) the Crown had underlying title; and 5) Aboriginal title was a ?burden? on Crown title (McNeil 1997).  2.2.2.3 20th Century Legislation and Policy The story of Aboriginal rights in Canada is a story of shifting power relations between Indigenous peoples and the colonizing state. The forces causing the shifts have been varied, but they can be tracked through linked developments in case law, legislation, and policy. This section covers some of the key developments in legislation and policy relating to Aboriginal rights in the 20th century, up until 1973 when Calder signaled a shift from the period of denial and assimilation to a period of recognition and talk of reconciliation.  In the early part of the 20th century, First Nations across Canada were using various means to try to force the government to recognize their Aboriginal rights and title. In 1908, the Cowichan made a legal petition to the Privy Council in London, which was followed by a similar one by the Nisga?a a few years later, arguing that they had never relinquished title to their land and therefore it was still theirs (Foster 1995 in Harris 2004). First Nations in BC formed the Allied Tribes of BC to pursue legal cases on Aboriginal rights (INAC 2009) and the Six Nations Council in Ontario was pushing the government to resolve land claims (RCAP 1996a). These legal and political challenges sufficiently scared the Canadian government, and it passed an amendment to the Indian Act in 1927, requiring a licence for anyone?Aboriginal or not?soliciting funds for Indian legal claims. This clause effectively prevented First Nations from pursuing land claims and was not repealed until 1951 (RCAP  38 1996a). This was the same time that the ban on the potlatch and most of the compulsory enfranchisement provisions were also lifted (one exception was the compulsory enfranchisement of Indian women who married non-status men and the compulsory enfranchisement of the women?s children).  In keeping with the removal of most of the enfranchisement provisions, registered Indians were granted the right to vote in federal elections in 1960. Before that, they were required to relinquish their Indian status to be considered Canadian citizens and have the right to vote. As described by Kulchyski (1994), once Aboriginal people had the right to vote, it became clear that they had, at a minimum, equal citizenship rights, with a likelihood of additional rights due to their status as prior occupants. This led to the idea of ?citizens plus?, advanced by Hawthorne (1966) in his Survey of Contemporary Indians in Canada, which was taken up and endorsed by Aboriginal political organizations.  The last major attempt by the federal government to comprehensively and unilaterally eradicate Aboriginal rights and title through assimilation came with the Statement of the Government of Canada on Indian Policy 1969, commonly known as the White Paper. In effect, the policy would have repealed the Indian Act and removed any distinct legal or political status for Aboriginal people, ostensibly to end discrimination (Kulchyski 1994; Culhane 1998; Isaac 2004). It was received by Indigenous peoples as a ?proposal for wholesale assimilation? (Kulchyski 1994, 5) and spurred First Nations across the country to organize and present a ?united front in defence of their cultural and political survival? (Culhane 1998). In the words of Aboriginal activist Harold Cardinal (1969 in RCAP 1996a):   39  We do not want the Indian Act retained because it is a good piece of legislation. It isn't. It is discriminatory from start to finish. But it is a lever in our hands and an embarrassment to the government, as it should be. No just society and no society with even pretensions to being just can long tolerate such a piece of legislation, but we would rather continue to live in bondage under the inequitable Indian Act than surrender our sacred rights. Any time the government wants to honour its obligations to us we are more than ready to help devise new Indian legislation.   First Nations used the concept of citizens plus to argue against the White Paper and for their Aboriginal rights. The White Paper was eventually withdrawn in 1971 (Kulchyski 1994).  It is this period of overt racism, denial of Aboriginal rights, dispossession of Indigenous lands and resources, and attempted elimination of Indigenous peoples through assimilation that is most reprehensible. And it is as a result of this period, and its practices, outcomes, and relationships, that reconciliation is offered as a solution.   2.2.3 Recognition and Talk of Reconciliation In hindsight, it seems, with the death of the White Paper came the beginning of a new era in the relationship between Indigenous peoples and the state in Canada. First Nations had found political strength in unity and the government was beginning to realize that assimilation was not going to work and that Indigenous peoples might have some rights beyond those of other Canadians. It was with the 1973 Supreme Court of Canada decision in Calder, the first Aboriginal title case since St. Catherine?s Milling, that the new era really began. As with many developments in Indigenous-state relations in Canada, government action followed a development in the courts.       40 2.2.3.1 Calder and Land Claims In Calder, the Nisga?a were seeking a declaration from the courts that their title to their lands had never been extinguished. The lower courts ruled against the Nisga?a, who appealed to the Supreme Court of Canada. In the judgment, three of the justices ruled that Aboriginal title still existed, three ruled that it did not, and the seventh justice dismissed the appeal on a technicality. Although the Nisga?a did not get their declaration, the decision was victory for Aboriginal rights.  Both the decision and the dissenting opinion ?contain extensive discussions of the Royal Proclamation of 1763, the St. Catherine?s Milling case, the Marshall decisions, and the nature of Aboriginal title and the process of extinguishing it? (Kulchyski 1994, 61). From the perspective of the courts and the Canadian state, there were several developments that came out of Calder. First, all of the six justices that actually ruled on the substantive matters in the case agreed that Aboriginal title existed in law and that its origins were in Aboriginal occupancy and institutions; it was not created by the Crown.    [N]otwithstanding either the course of Canadian history as understood by the descendents of the settlers, immigrants, and colonists or legal precedent derived from British colonial law, the Canadian state was required to recognize the self-evident yet hitherto ignored fact that Aboriginal peoples lived in societies prior to the arrival of Europeans and that, as a consequence, there was a likelihood that their institutions, tenures, and rights to government remained in place despite the presumption of Canadian sovereignty (Asch 1997, ix).  Second, with respect to extinguishment, three of the justices felt that Aboriginal title was a ?mere burden? on Crown title, the Crown had exclusive right to extinguish Aboriginal title, and Aboriginal title had been lawfully extinguished by Britain?s declaration of sovereignty  41 (Culhane 1998). In the dissenting opinion, however, Hall argued that ?while the Crown did have the right to extinguish Aboriginal title it must state its intention to do so in ?clear and plain language,? and it could not be concluded that ?implicit? extinguishment had taken place by virtue of colonial authorities having simply ignored Aboriginal title? (Culhane 1998, 82). It is Hall?s opinion on the nature of extinguishment that was later adopted by the Supreme Court in R. v. Sparrow17 (Kulchyski 1994).    The judgment in Calder was striking enough to convince the Canadian government that it needed to start negotiating comprehensive land claims in places where treaties were not signed (Kulchyski 1994). In 1973, the federal government set out a Statement of Claims of Indian and Inuit People, which divided Aboriginal claims into specific claims, dealing with concerns related to government administration of reserve land and assets and non-fulfillment of historic treaties, and comprehensive claims, dealing with continuing Aboriginal title to lands and resources in areas where claims had not been addressed by treaties (INAC 2009a). In 1976, the federal government began negotiating with the Nisga?a Tribal Council.    As described by the federal government (INAC 2009a), in 1981, the main goal of the comprehensive claims process was to obtain ?certainty? respecting ownership, use, and management of lands and resources by trading claims to undefined Aboriginal rights for a clearly defined package of rights and benefits. In 1995, the federal government accepted that there needed to be new approaches to achieving certainty other than exchange and surrender of Aboriginal land rights. As pointed out by Asch (1999, 433), however, the government?s                                                 "T3R"SS@U!"!V6W!"@TD!R9:%,,.)U! 42 strategy with respect to land claims is to ?ensure, either by extinguishment or a process akin to adhesion, that upon signing a final agreement, the Indigenous party forfeits its ability to rely on Aboriginal rights as a source of political rights (especially fundamental rights) and thus that their rights originate solely from the fact they are Canadian citizens.? Land claims negotiations are a slow and frustrating process, and, as described by Culhane (1998), engaging in the comprehensive claims process requires First Nations to adopt the frameworks and tools of their colonizers. Between 1973 and 1997, seven comprehensive claim agreements were ratified and brought into effect, all of them in the North of Canada (INAC 2009a).  In addition to its land claims policies, the federal government adopted its Inherent Right Policy in 1995 as an approach to the Aboriginal right to self-government (INAC 2009a).  The beginnings of this policy were with Aboriginal pressure on the federal government following the failure of the White Paper. The federal government?s Special Committee of the House of Commons on Indian Self-Government recommended in 1983 that the government recognize First Nations as a distinct order of government and pursue Aboriginal self-government. A community-based self-government policy was developed in 1985, but few agreements were reached because of the government?s position on law-making authorities. The 1995 Inherent Right Policy is focused on ?practical arrangements? rather than rights and seeks to establish government-to-government relationships that provide for jurisdictional clarity and address capacity and responsibilities for program and service delivery (INAC 2009a).   43 2.2.3.2 The Constitution Act (1982) and Subsequent Case Law After becoming a dominion in the British Commonwealth in 1867, Britain slowly transferred more powers to Canada. A movement to repatriate the Constitution grew in the 1970s. In 1978, two important events took place: there was a federal proposal for constitutional reform (Bill C-60) and representatives from the three national Aboriginal organizations were invited to be observers at the related first ministers? meeting (Pentney 1987). Aboriginal groups worked hard, both nationally and internationally, politically and in the courts, to strengthen the provisions relating to Aboriginal rights in the Constitution and accompanying Charter of Rights. In the end, the modifications to the Constitution were a victory for First Nations, though not a complete one.    The main Aboriginal provisions are in Section 25 of the Canadian Charter of Rights and Freedoms and Section 35 of the Constitution Act, 1982. Section 25 of the Charter states:    The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may so be acquired.  Section 35 of the Constitution states:   (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, ?aboriginal peoples of Canada? includes the Indian, Inuit and M?tis peoples of Canada. (3) For greater certainty, in subsection (1) ?treaty rights? includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.  44  The main victory for First Nations was that Aboriginal rights were elevated from the common law to constitutional law, giving them much stronger protection. It signaled a shift on the part of the federal government, as, in the time between Calder and the Constitution Act, Canada moved from ignoring and denying Aboriginal rights, to recognizing and affirming them (Asch 1997). The addition of the word ?existing? in Section 35(1), however, was a setback because according to jurisprudence, Aboriginal rights may have been extinguished prior to 1982 through the conclusion of a treaty or by a Crown action demonstrating a clear intention to extinguish specific Aboriginal rights (Ochman 2008). Also, though they were affirmed, the nature and content of these ?existing aboriginal and treaty rights? was unclear. The clause has been described as an ?empty box? that had to be filled through continuing litigation and negotiation (Culhane 1998). Constitutional conferences held in the years following the passing of the Constitution Act failed to clarify the meaning of ?existing aboriginal and treaty rights?, so it has been left to First Nations to force clarification through the courts.    Aboriginal law in Canada has progressed mainly through the courts, which have set out and interpreted concepts such as Aboriginal rights and title, fiduciary obligations, the honour of the Crown, extinguishment, infringement, and justification (Ochman 2008). In the period following the passing of the Constitution Act, 1982, there were many court cases that built on each other and elaborated certain aspects of the Canadian legal interpretation of Aboriginal rights. I will only touch on a few of the major cases respecting Aboriginal rights and title and will not look at cases relating to treaty rights.  Other sources give fuller accounts of the  45 evolution of Aboriginal rights through case law (e.g., Ochman 2008, Isaac 2004, Kulchyski 1994, Elliott 1994).  In 1984, the Supreme Court of Canada handed down its decision in Guerin v. The Queen,18 a case in which the Musqueam Indian Band sued the federal government for breach of trust. The court ruled in favour of the Musqueam, saying that the Crown owed a duty to the Musqueam, that the duty was of a fiduciary nature, and that the duty had been breached (Elliott 1994). White et al. (2004, 33) describe the fiduciary responsibility this way.  The fiduciary relationship between the Crown and Aboriginal Peoples has its roots in the concept of Native or Aboriginal title. The fact that Aboriginal Peoples have a certain interest in lands does not, however, in itself give rise to a fiduciary relationship between Aboriginal Peoples and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Aboriginal interest in the land is inalienable except upon surrender to the Crown.   It was also in Guerin that Aboriginal rights were first labeled sui generis, or unique and of their own class (Borrows & Rotman 1997). As mentioned earlier, what makes them unique is that they bridge Aboriginal and non-Aboriginal legal systems.  The first Supreme Court decision that attempted to fill the ?empty box? of Aboriginal rights created by the Constitution was Sparrow in 1990. Another Musqueam case, Sparrow dealt with the right to fish. The court found that common law Aboriginal rights are recognized and affirmed by section 35(1) of the Canadian Constitution, which is paramount over all other laws (Culhane 1998). As outlined in Elliott (1994) and Culhane (1998) other elements of the decision are that Aboriginal rights: are affirmed in contemporary form, allowing evolution                                                 "P!R"SPAU!?!V6W!EED!R;'",<0U! 46 over time; must be integral to a First Nation?s distinctive culture; can only be extinguished if the Crown?s intent is clear and plain; and are protected from infringement by government regulation unless the infringement is justified. Legislation infringes Aboriginal rights if it imposes an unreasonable limitation or undue hardship, or denies the right holders their preferred means of exercising the right. To show justification, government must demonstrate that it has a valid legislative objective; that it has given the Aboriginal right top priority after the legislative objective; and that there has been minimum infringement, fair compensation for any expropriation, and consultation with the Aboriginal group. The legislative objective must be ?compelling and substantial?, for example conservation of a resource or preventing harm to people, and the public interest or reasonableness are not adequate criteria. From the perspective of advancing Aboriginal rights, the judgment contained elements that were advantageous and elements that were disappointing. On the whole, however, the decision was considered a victory for Indigenous peoples.   In Sparrow, the court accepted the Aboriginal right to fish for food, social, and ceremonial purposes without dealing with the question of how Aboriginal rights are to be identified and defined (McNeil 2001). That question was dealt with in three fishing cases, known as the Van der Peet19 trilogy, decided by the Supreme Court of Canada in 1996. In Van der Peet, Chief Justice Lamer wrote the majority judgment, creating a test for identifying Aboriginal rights. In his words, ?in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group                                                 "S!=53453>%03+",3?""2!R"SSQU!?!V6W!D@T!R>%03+",3?""2UC!=53453@5A5*539&.("/.'1"3B2+;7!R"SSQU!?!V6W!QT?C!=53453;#%+12.0"7!R"SSQU!?!V6W!T?E! 47 claiming the right?20, prior to contact with Europeans and continuing to be practiced today (Isaac 2004). In the case of Dorothy Van der Peet selling fish caught under an Indian food fish license, Lamer found that although the Sto:lo had traded fish prior to contact with Europeans, it was not an integral part of their distinctive culture, but rather incidental to the primary activity of fishing for food (McNeil 2001). The two dissenting judgments did not agree with ?Lamer?s narrow, time-oriented approach to the identification and definition of Aboriginal rights? (McNeil 2001, 319).  Justice McLauchlin disagreed with the meaning Lamer attached to ?integral to the distinctive culture?, instead suggesting a broad definition of Aboriginal rights as ?the unity of practices which together make up that culture.?21 She also criticized his categorical definition of Aboriginal rights, preferring to ask if an activity was like an established Aboriginal right, and his pre-contact time frame, suggesting that Aboriginal rights need only be based on traditional Aboriginal laws and customs that had historical roots (McNeil 2001). Justice L?Heureux-Dub? characterized Lamer?s pre-contact requirement as a ?frozen right? approach, preferring a ?dynamic right? approach.  As Sparrow and Van der Peet were key cases for the development of Aboriginal rights doctrine, so the 1997 Supreme Court of Canada judgment in Delgamuukw was a landmark decision relating to Aboriginal title. Delgamuukw dealt with the land claims of the Gitxsan and Wet?suwet?en and was the first time the Supreme Court ruled on title following Calder in 1973. Although a new trial was ordered, the court defined Aboriginal title in the judgment, explaining what is necessary to prove it, clarifying the extent of federal authority over it, and addressing the issues of constitutional protection and infringement (McNeil 2001).                                                 ?@ Van der Peet at para 46. ?" Ibid at para 256.  48  The Supreme Court defined Aboriginal title as ?the right to the land itself?, which ?encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures.?22 Minerals, oil, and gas were specifically included in the resources attached to Aboriginal title (McNeil 2001). Aboriginal title is sui generis and not like fee simple ownership because it: is inalienable; has its source in the occupation of land prior to assertion of sovereignty by the Crown; cannot be used in ways that are inconsistent with the attachment to the land that gave rise to the title; and is a collective right held communally by all the members of an Aboriginal nation (McNeil 2001). Following earlier cases, Aboriginal title is defined as a particular type of Aboriginal right, and the Court described Aboriginal rights as falling along a spectrum with respect to the degree of connection to the land (Ochman 2008).    At one end are those Aboriginal rights that are practices, customs, and traditions integral to the distinctive culture of the group claiming the right. These activities have constitutional protection, but the occupation and use of the land where the activities are occurring is not sufficient to support a claim of Aboriginal title to the land. In the middle of the spectrum there are activities that, out of necessity, take place on the land and might be intimately related to a particular parcel of land. While an Aboriginal group may not be able to prove Aboriginal title, it may be able to prove a site-specific Aboriginal right to engage in a particular activity. At the other end of the spectrum, there is Aboriginal title itself, and all the attributes associated with it.23  In Delgamuukw, the Court also laid out the test for Aboriginal title, which requires that ?the Aboriginal people in question were in exclusive occupation of the claimed lands at the time of Crown assertion of sovereignty? (McNeil 2001, 324). In addition to proving occupation                                                 ?? Delgamuukw at para 117 and 140. ?E Ibid at para 138 in Isaac 2004.  49 and exclusivity, a First Nation must prove continuity between present and pre-sovereignty occupation if present day occupation is being used as proof of occupation (Ochman 2008). Lamer describes Aboriginal title as a ?burden? on the underlying title that the Crown acquired along with sovereignty, thus the importance of proving occupation at the time the Crown asserted sovereignty. He also makes the circular argument that: ??it makes no sense to speak of a burden on the underlying title before that title existed. Aboriginal title crystallized at the time sovereignty was asserted.?24 He does not address the fundamental question of ?why the onus is on Aboriginal peoples to prove their own title as against the European colonizers when we all know that they were here occupying lands when