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Between justice and certainty : treaty making in modern-day British Columbia 2002

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BETWEEN JUSTICE AND CERTAINTY: TREATY MAKING IN MODERN-DAY BRITISH COLUMBIA by ANDREW WOOLFORD B.A., The University of Victoria, 1993 M.A., The University of Western Ontario, 1996 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE F A C U L T Y OF G R A D U A T E STUDIES (Department of Anthropology and Sociology) We accept this thesis as conforming toJh__jeajiired -_ajiilniti(iiM THE UNIVERSITY OF* BRITISH C O L U M B I A July 2002 © Andrew Woolford, 2002 In p r e s e n t i n g this thesis in partial fu l f i lment of the requ i remen ts fo r an a d v a n c e d d e g r e e at t he Univers i ty of Br i t ish C o l u m b i a , I agree that t h e Library shal l m a k e it f ree ly avai lable fo r re fe rence and study. I fur ther agree that p e r m i s s i o n f o r ex tens i ve c o p y i n g o f this thesis fo r scho la r l y pu rposes may be granted by the h e a d o f m y d e p a r t m e n t o r by his o r her representat ives. It is u n d e r s t o o d that c o p y i n g o r p u b l i c a t i o n of this thesis fo r f inanc ia l ga in shal l n o t b e a l l o w e d w i t h o u t m y w r i t t e n p e r m i s s i o n . D e p a r t m e n t of Anthropology and S o c i o l o g y T h e Univers i ty of Bri t ish C o l u m b i a V a n c o u v e r , C a n a d a Da te J u l y 29. 2002 D E - 6 (2/88) ABSTRACT The British Columbia Treaty Process was established in 1992 with the aim of resolving the outstanding land claims of First Nations in B.C. Since that time, two discourses have been prevalent within the treaty negotiations taking place between First Nations and the governments of Canada and British Columbia. The first, that of justice, revolves around the question of how to remedy the past injustices that were imposed on B.C.'s First Nations so as to improve their current circumstances. The second, that of certainty, asks whether this historical repair can occur without significantly disrupting the social order, and whether it can be done in a manner that provides a better future for all British Columbians. Each discourse, as it unfolds in the negotiation process, is characterized by competing visions of what justice and certainty should mean. This thesis examines the interplay between Aboriginal and non-Aboriginal visions of justice and certainty and queries: is there a space between justice and certainty in which modern treaties can be made? On the basis of interviews, fieldwork, and a document analysis of treaty- related materials, I argue that the B.C. Treaty Process, as it currently stands, fails to provide a reliable means for the parties to negotiate 'between justice and certainty'. In particular, the procedural model on which the B.C. Treaty Process is built lacks clear substantive guidelines, leaving it susceptible to the manipulations and 'symbolic violence' of the more powerful parties - i.e. the provincial and federal governments. This has resulted in negotiations that are defined by the visions of justice and certainty forwarded by the non-Aboriginal governments, visions which prioritize the economic and political interests of business and government over a serious reckoning with the past. These 'affirmative reparations' render justice equivalent to achieving certainty in the form of clear and stable business and governance relations between Aboriginal and non-Aboriginal peoples. In opposition to this affirmative perspective, I argue that the ii Aboriginal and non-Aboriginal peoples, which sharply contrasts with First Nations' demands that non-Aboriginal governments provide a forthright acknowledgement of and apology for infringement on Aboriginal rights and title, significant monetary compensation and land restitution, and recognition of broad powers of Aboriginal self-governance. However, these First Nation justice demands do not meet the economic and political imperatives of neoliberal globalization, and it is on the basis of these broader societal forces that the non-Aboriginal government vision of certainty rests. For them, 'rational' and certain settlements need to be forged through treaty-making to ensure the ability of governments and businesses to operate efficiently in the global marketplace. In opposition to this affirmative perspective, I argue that the negotiation process needs to be redesigned so that the symbolic and material justice demands of First Nations form the basis for treaty-making. Unless the B.C. Treaty Process opens itself to the possibility of transformative justice contained within these demands - that is, to a justice that reconfigures symbolic, political and economic relationships between Aboriginal and non- Aboriginal peoples - the certainty desired by non-Aboriginal governments and businesses is unlikely to prevail. Indeed, the economic and political assimilation that is attempted through affirmative repair is more likely to lead to future conflict than to the trust and mutual respect between Aboriginal and non-Aboriginal societies necessary for certainty to be realized. iii TABLES OF CONTENTS A B S T R A C T T A B L E OF CONTENTS iv A C K N O W L E D G M E N T S vii CHAPTER 1: INTRODUCTION 1 1.1 The Problem to be Addressed in this Thesis 3 1.2 Definition of Terms 7 a) Aboriginal Rights and Title 7 b) Justice 9 c) Certainty 14 1.3 Some Notes on Methodology 18 a) Document Analysis 18 b) Qualitative Fieldwork 20 c) Qualitative Interviews 22 d) Tools for Analysis 24 1.4 Balancing Justice and Certainty 26 1.5 What is to Follow 27 Endnotes for Chapter 1 29 CHAPTER 2: THE IMPOSITION OF COLONIAL VISIONS OF JUSTICE 31 2.1 Before Settlement 33 2.2 Paternal Justice: Certainty Through Denial 36 a) The Douglas Treaties and Reserves 37 b) Joseph Trutch 40 c) The Joint Review Committee 43 d) The McKenna-McBride Royal Commission 46 2.3 Regulating Certainty: From Control to the Manufacture of Consent 51 a) Administrative Control 52 b) Control through Assimilation 56 c) Seeking Consent 58 2.4 Defining Certainty: From Liberal Universalism to Identity Politics 60 2.5 Conclusion 68 Endnotes for Chapter 2 70 CHAPTER 3: FIRST NATIONS JUSTICE FRAMES 72 3.1 The Land Claims Movement as a Social Movement 72 a) Defining the First Nations Movement 75 b) First Nations SMOs 79 3.2 The Emergent Movement: Colonization and Social Change 80 3.3 Seeking Political and Discursive Openings 84 3.4 Master Frames and Land Claims 90 T A B L E OF C O N T E N T S (cont.) 3.5 The First Nations Tactical Repertoire: Legal and Direct Action 95 3.6 Movement Success? The Formation of the B.C. Claims Task Force 100 3.7 Conclusion 101 Endnotes for Chapter 3 104 CHAPTER 4: THE BCTC PROCESS 106 4.1 The Report of the B C Claims Task Force 107 4.2 The British Columbia Treaty Commission I l l 4.3 The Treaty-Making Process 117 4.4 The Memorandum of Understanding on Cost Sharing 124 4.5 The Consultation Process 128 4.6. The Processes within the Treaty Process 134 a) The Federal Government 134 b) The Provincial Government 136 c) The First Nations Summit 138 4.7 The Process Outside of the Process 140 4.8 The Challenges Faced in the B.C. Treaty Process 143 Endnotes for Chapter 4 148 CHAPTER 5: BETWEEN THE PROCEDURE A N D SUBSTANCE OF JUSTICE 151 5.1 Between Universalism and Particularism 152 5.2 Justice as Procedure 155 a) Habermas: Justice as Communicative Process 158 b) Criticisms of Habermasian Proceduralism 161 5.3 Justice as Substance 167 5.4 Nancy Fraser: Justice as Substance 169 5.5 Affirmative Reparations 180 5.6 Conclusion: Between the Procedure and Substance of Justice 183 Endnotes for Chapter 5 184 CHAPTER 6: VISIONS OF JUSTICE 186 6.1 Procedural versus Substantive Visions of Justice 187 6.2 Legal and Utilitarian versus Moral Visions of Justice 194 6.3 Particular versus Universal Visions of Justice 199 6.4 Visions of the Past versus Visions of the Future 206 6.5 Certainty as Justice: The Problem of Affirmative Reparation 213 Endnotes for Chapter 6 216 CHAPTER 7: VISIONS OF CERTAINTY 218 7.1 Certainty: Then and Now 219 7.2 Forms of Certainty 221 7.3 Certainty and Globalization 227 7.4 Neo-liberalism and Certainty 230 7.5 Extinguishing Versus Recognizing Aboriginal Rights 238 T A B L E OF C O N T E N T S (cont.) 7.6 Finality versus Predictability 242 7.7 Contract versus Sacred Promise 247 7.8 Subjective versus Objective Certainty 250 7.9 Conclusion 253 Endnotes for Chapter 7 254 CHAPTER 8: CONCLUSION 256 8.1 The B.C. Treaty Referendum 257 8.2 The Proposed Questions 259 8.3 Offering a Statement of Regret ....268 8.4 Uncertain Justice? 270 Endnotes for Chapter 8 278 BIBLIOGRAPHY 279 APPENDIX A : RECOMMENDATIONS OF THE BRITISH COLUMBIA CLAIMS TASK FORCE 299 APPENDIX B: GLOSSARY OF A C R O N Y M S A N D T R E A T Y - R E L A T E D TERMS 300 vi A C K N O W L E D G E M E N T S The work contained within this thesis would not have been possible without the support of many people. Professor R.S. (Bob) Ratner has been my mentor and guide during my Ph.D. studies. His wisdom and encouragement have been instrumental in my scholarly development, and this document has benefited greatly from his critical insight and attention to detail. I hope the respect and high regard his students feel for him is some reward for his dedication to them, which surpasses all reasonable expectations. I would also like to thank my committee members, John Torpey and Charles Menzies, as well as my examiners, Bruce G. Miller, W. Wesley Pue, and Donald Clairmont, for providing me with excellent scholarly and career advice. I am indebted to them for their careful reading of this thesis and the thoughtful commentary each provided. Finally, I would like to acknowledge Thomas Kemple for chairing my oral defense (internal) and for the assistance he has always been more than willing to provide regarding my academic endeavours. I dedicate this thesis to my father, John Woolford, who encouraged me to attend University. To both he and my mother, Linda Woolford, I offer my deepest gratitude for the support they have provided. Lastly, the process would have been far less bearable without my wife Jessica at my side - she has been my constant motivator and tireless editor throughout my doctoral studies. vii C H A P T E R 1: I N T R O D U C T I O N In many nations tainted by an unsavory past, processes are being implemented to acknowledge long-denied narratives of injustice, punish the perpetrators of those injustices, encourage reconciliation between victims and offenders, and offer recompense to survivors and/or the descendants of victims (Adam, 2001; Barkan, 2000; Minnow, 1998). Through these processes governments, churches, and private enterprises are being compelled to address their past wrongdoings (Torpey, 2001). This seeming 'moral awakening' began in the latter half of the twentieth century, a century many commentators have described as the epitome of human cruelty (see, for example, Alvarez, 2001; Bauman, 1989; Mann, 1999; Minnow, 1998). In reaction to the horrors of World War II, the genocidal machinery of the Nazi regime, the political repression that accompanied the polarized politics of the Cold War, and other instances of mass violence and curtailed freedoms, various social movements have arisen to demand reparation for the crimes of the past. However, not all movements locate the source of their suffering solely in the recent past. For some, such as the First Nations1 of Canada, the injustices stretch back to the colonization of what is now called North America. Upon the initial injustice of the expropriation of their lands, further injustices have been heaped, culminating in present circumstances of poverty, dependency, and cultural collapse. The length of time over which injustices occurred, as well as their several and still developing forms, makes any simple calculus of reparation impossible. An actuarial equation of compensation for degree of injury suffered and resources lost cannot be formulated to repair this past. Nonetheless, the complexity of the circumstances of injustice, and the difficulty of compensation, should not be employed as convenient rationalizations for 1 inaction. The past cannot be erased by kind words, cash disbursements, or land distribution, but it can be addressed so as to assuage its negative influence on the future. The question of dealing with the Canadian past is particularly problematic in British Columbia, where the injustices experienced by First Nations have taken a different shape than those experienced by Aboriginal groups elsewhere in Canada. Whereas the Canadian government signed treaties with many First Nations soon after contact, in British Columbia few treaties were signed, leaving First Nations of this region more susceptible to the whims of government and vulnerable to extensive expropriation of their lands.2 It is this situation that the Governments of Canada and British Columbia, and the First Nations of the province, now wish to remedy. The British Columbia Treaty process, which currently involves 50 First Nations engaged in various stages of negotiations with the provincial and federal governments, has been initiated to provide treaties for First Nations in British Columbia. This process is intended to achieve long-awaited agreements on issues ranging from land ownership to Native self-government. Arriving at this point required years of perseverance and activism on the part of Aboriginal groups and individuals, and still the process may not be a reliable route to change. Questions remain as to whether this process will be able to meet the Supreme Court of Canada's advisement that the governments of Canada and British Columbia have the "moral if not legal duty" (Delgamuukw v. British Columbia, 1997) to settle treaties with the First Nations of British Columbia in "good faith". 2 1.1 The Problem to be Addressed in this Thesis The idea that the non-Aboriginal governments possess a "moral" and "legal duty" to negotiate in good faith speaks to only one dimension of the treaty-making process: the requirement that 'justice' be achieved through fair and open negotiations. However, in the global economic context of modern treaty-making, this goal of justice is more than ever tempered by another motivating factor: certainty. Discourses of certainty pervade the treaty- making process, and the form that the realization of certainty takes promises to have repercussions for the type of justice produced through the B.C. Treaty Process. Certainty means, first and foremost, that conflicts between Aboriginal and Crown title be resolved so that there is clarity with regard to who owns and has jurisdiction over lands in British Columbia. It is a practical concept intended to effect tangible changes in the future socio- economic and legal relationship between Aboriginal and non-Aboriginal peoples in B.C. Yet, acceptance of these changes depends upon the general, more abstract, perception that 'justice' has been achieved through treaty settlement. 'Justice' can bestow legitimacy upon the end results of the treaty process if these results produce a general perception that the treaties are 'fair'. Quite simply, if all parties feel that the terms of the treaty are fair, then no one party will be likely to challenge it at a later date. Therefore, justice can produce certainty by establishing secure relationships between the parties, thereby bringing about a form of reconciliation through which the formerly conflicting parties can establish trust. Without the reconciliation that derives from justice, the stability of certainty may be disrupted, as political and material disputes threaten to rekindle conflicts over rightful ownership and government jurisdiction. But there is also a tension that exists between justice and certainty. Visions of what constitutes a 'fair' settlement differ widely amongst the parties involved in negotiations. 3 Similarly, visions of what treaty terminology and forms of agreement will best produce certainty are hotly contested. Thus, there is no obvious meeting point at which justice and certainty will combine to create improved future relationships between Aboriginal and non-Aboriginal communities in B.C. The tension that exists between these foci of the treaty process is experienced on the interface between past and future. While reconciliation requires that 'justice' be established and that reparation and restitution be made, certainty calls for the creation of new relationships reflective of current economic and political realities. Reconciliation appeals to our ideal sense of humanity—it calls for ethical negotiations in which the parties communicate with each other respectfully, and it demands consideration be given to the needs of the other. A l l of these things suggest forms of justice less calculable than certainty demands. Certainty, as it is most commonly understood, requires a detailed cataloguing of rights, a relationship defined to meet the vagaries of the future. The question I will deal with in this thesis is whether or not a future certainty of this nature is possible in the context of moral obligations shaped by the past. Stated differently, is there a space between justice and certainty in which modern treaties can be made? This question will be addressed in the specific context of treaty-making in British Columbia. Although much of the research presented in this paper is drawn from negotiations and meetings conducted in the lower mainland of British Columbia - the area surrounding British Columbia's largest urban centre, Vancouver - the interviews I conducted, and many of the meetings I attended, dealt with topics extending well beyond the limits of this geographical region. Moreover, urban treaty negotiations, such as those taking place in the lower mainland, present a stark example of the challenge of justice in the face of certainty. For many urban First Nations, the land and resources they could potentially claim have already been developed and 4 exploited, leaving them with little foundation on which to build a local economy. Furthermore, based on the Memorandum of Understanding on Cost-Sharing (hereinafter M O U , 1993) negotiated between Canada and B.C., any urban lands redistributed in treaty are to be valued at current market prices. In densely populated regions such as Vancouver, where the price of property is extremely high, the addition of a small parcel of land to a treaty settlement package could then account for a significant proportion of the final agreement.4 Thus, urban First Nations often make stronger demands in their negotiations that 'compensation' for past infringements of Aboriginal title be paid to them to reflect the value of the land they lost.5 However, the non-Aboriginal governments refuse to negotiate on the basis of compensation, fearing that this term implies legal liability, and that it could potentially open the government to future legal challenges of the sort that certainty is intended to prevent. Therefore, in urban negotiations there is a clear conflict between First Nations' desire for symbolic acknowledgement of and monetary compensation for lands and resources lost and the non- Aboriginal governments' objective that treaties create certainty. In contrast, First Nations engaged in treaty negotiations in rural settings often emphasize the issue of interim measures at their tables. Interim measures were meant to be reached early in the negotiation process to ensure that the land and resources that First Nations claim through the B.C. Treaty process are not sold-off or depleted prior to final agreement. The parties agreed at the beginning of the treaty process that interim measures would be put in place to demonstrate the commitment of the non-Aboriginal governments to establishing "just" and "fair" treaties (British Columbia Claims Task Force, 1991). Thus far, however, interim measures of the sort First Nations desire - ones that protect traditional lands for future use - have been slow in coming; instead, First Nations have been provided with interim measures and 'treaty related 5 measures' (see Chapter 6) that are designed primarily to build First Nations governance capacity.6 Aside from the distinct importance of compensation in the lower mainland, however, this region represents a microcosm of treaty-making issues that are evident across the province. First Nations in this area vary greatly in terms of size, ranging from the Squamish Nation that has a population of approximately 2910 (1941 of whom live on reserve) to the Tsleil-Waututh who have 335 members. First Nations in the lower mainland also differ in their approaches to treaty- making and their visions of justice. While some First Nations, such as the Squamish and the Tsawwassen, might be described as taking a more pragmatic approach to treaty-making (although this description is not intended to discount their commitment to justice), other First Nations in this region, such as the Musqueam, possess visions of justice that prevent them from moving beyond even the earliest stages of the treaty process until certain concessions are made by the two non-Aboriginal governments. Furthermore, although these urban First Nations are situated very close to Vancouver, some of them are adjacent to large tracts of land that hold valuable resources. These urban First Nations therefore hold some interests that are similar to those held by rural First Nations in that they are embroiled in a struggle to reach "interim measures" agreements with the non-Aboriginal governments. Nonetheless, to some extent, the degree of emphasis placed on either interim measures or compensation represents a rural/urban divide within treaty-making. This divide, moreover, reflects the differential experiences of colonialism felt by First Nations across British Columbia. Indeed, given the diversity of First Nation cultures, their varying relations with their natural environments, and the multiple paths their interactions with European explorers, traders, politicians, and settlers have taken, it is difficult to make broad generalizations about the First 6 Nations of B.C with regard to the visions of justice they bring to the treaty tables. Thus, it is important to bear in mind the sheer scope of treaty negotiations in British Columbia. As it stands, the B.C. Treaty Process is comprised of 50 First Nations negotiating at 43 separate tables. While most of these tables share common issues and challenges, each also possesses its own particular qualities, including the specific visions of justice and certainty that motivate the actors engaged in negotiation. This said, the purpose of this thesis is not to catalogue all of the visions of justice forwarded by First Nations taking part in, or excluded from, the B.C. Treaty Process, but rather to demonstrate how what will be described as 'transformative' visions of justice (see Chapter 5) come into confrontation with non-Aboriginal government and business visions of certainty. Accordingly, the visions presented within this thesis represent only a sample of the possible visions of justice and certainty that arise through treaty-making in B.C. 1.2 Definition of Terms Before carrying the analysis any further, it is necessary to first provide some basic definitions and descriptions of the terms that provide a framework for this thesis.7 a) Aboriginal Rights and Title The concept of Aboriginal rights is a distinct principle of Canadian law reflected in the 1982 Constitution under Section 35. Through the enshrinement of these rights, which include the practices, customs, traditions, and communal organization of First Nations, the governmental objective is to ensure the survival of the basic elements of Aboriginal societies in a manner compatible with Crown Sovereignty (Slade and Pearlman, 1998). Land rights, or Aboriginal title, is one element of these broader rights. 7 Initially, after contact, the Crown assumed that it held title to the land in Canada, and that Aboriginal title was merely a burden on the Crown (Stevenson, 2000). The Supreme Court of Canada confirmed this view, describing Aboriginal title as a lesser interest, or as a "personal or usufructory right" (see, for example, St Catherine's Milling and Lumber Co. v. The Queen, 1888). Indeed, it was based on these principles that British Columbia was colonized and Aboriginal title was ignored and assumed extinguished. However, recent Supreme Court cases have challenged this colonial view, recognizing the existence of unextinguished, yet undefined, Aboriginal rights and title in British Columbia. One of most recent statements on Aboriginal rights, the Delgamuukw ruling (1997), affirms that Aboriginal title to the land does not exist on the basis of a declaration of the Crown, but instead accrues to First Nations on the basis of their historic occupancy of this region (Slade and Pearlman, 1998; Slatterly, 2000). Aboriginal title, based on Delgamuukw, is, therefore, an inalienable, communally held right to the land that arises from First Nations' prior occupation of Canada (Slatterly, 2000). The Delgamuukw ruling empowers First Nations to enjoy exclusive use and occupation of the land in forms that go beyond traditional usage, but, at the same time, places inherent limits on this usage, requiring that First Nations do not use the land in a way that contradicts or makes meaningless the term 'Aboriginal' title; that is, First Nations cannot use the land in a manner that would destroy the Aboriginal nature of this title, such as by selling it outright to a third party. The Court cases and political developments that have laid the basis for defining Aboriginal rights and title will be examined in more detail in Chapters 2 and 3. For now, it is important to note that Aboriginal rights and title remain largely undefined in B.C, and the primary means for defining them are either through legal decisions handed down by the courts or through treaty negotiations. Many First Nations in the province and the governments of B.C. 8 and Canada have selected the latter path for settling the land question in British Columbia. Their stated reason for taking this path is a belief that fair negotiations are the best vehicle for achieving both 'justice' and 'certainty' within the province. b) Justice Justice can be defined as a solution to a problem that offers " . . .a way out of a morass of conflicting claims" (Fisk, 1993: 1). Typically, a problem that requires a 'just' solution is referred to as an 'injustice'. This begs the question: how does one know when an injustice has been committed? Thus, to claim that justice is required, it is first necessary to establish what injustice(s) occurred. This latter task can be achieved by appealing to one of two senses of normative correctness in order to "frame" the injustice. The first normative frame is based on the formal legal codes of a particular social grouping. Injustice, from this perspective, is behavior that contravenes the prescriptions of an accepted legal code. The second sense of normative correctness appeals to a moral code that might be based upon philosophical reason, religious belief, or some other less tangible grounds. For those following this sense of justice, injustice is that which disrupts this higher order. Justice claims made regarding the conflict over land claims in British Columbia have been based on both legal and moral understandings of justice. For example, the expropriation of First Nations lands in British Columbia has often been challenged on legal grounds. Justice claims of this sort typically refer back to the Royal Proclamation of 1763, in which the British Government declared that First Nations lands were to remain reserved for their indigenous inhabitants, unless they were ceded to the Crown. The formal text of the document states that the "Indian peoples" of the new Colonies 9 "...should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds — We do therefore, with the Advice of our Privy Council, declare it to be our Royal Wil l and Pleasure, that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments as described in their Commissions: as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them" (Royal Proclamation, 1763). However, the applicability of this document to British Columbia has been contested. Soon after settlement on the West Coast took place, colonial government officials began to make the argument that the land was terra nullius8 prior to colonization (Culhane, 1997; Slatterly, 1985). This argument took its most virulent form in the words of Premier Smithe who suggested to a Nisga'a and Tsimshian delegation seeking extended territories, "When the whites first came among you, you were little better than the wild beasts of the field." (quoted in Raunet, 1996: 156 and Tennant 1990: 58). Based on this view, the Royal Proclamation did not apply to the lands that would become British Columbia since a nomadic lifestyle (in Eurocentric eyes) did not constitute "possession". Of course, the assertion that the First Nations of the region were entirely nomadic and had no sense of property was patently false and ignored the well- established societies that thrived here long before contact (Raunet, 1996). The argument against the applicability of the Royal Proclamation has in recent court cases (such as Delgamuukw) taken the form of denying that the drafters of the document intended it to apply to colonies beyond those existing at the time of its writing. Since British 10 Columbia was not officially a colony at this point of time, this argument suggests that the Proclamation does not apply to this geographic area. Legal justice claims are also made based on more recent Canadian legal principles, such as the aforementioned Canadian Constitution of 1982. In the framing of the Constitution, the architects enshrined the treaty and Aboriginal rights of First Nations in Section 35, an unparalleled move in the history of post-colonial nation-states. According to Boldt and Long (1985: 3), "[f]he constitutional status of aboriginal people and the constitutional affirmation and recognition of aboriginal rights commit both present and future generations of Canadians to seek a resolution of the issue [of aboriginal rights]". Aboriginal rights in B.C., however, remain largely undefined and can only be fleshed out through the courts or through negotiations. Many argue that, until this occurs, there will remain a question mark on Crown title and jurisdiction in B.C. Not all appeals to legal justice claims, however, rely on interpretations of British or Canadian common law. Aboriginal arguments for legal justice are also made based on what is referred to as Aboriginal common law or "natural law" (Ahenakew, 1985: 24; Lyons, 1985: 19). This form of legal argument cannot be easily separated from moral justice claims since it rests on the supposition that Aboriginal rights are granted by the Creator and therefore are not under the jurisdiction of worldly governments. In other words, a sacred covenant is in place between Aboriginal peoples and the Creator that has made the former stewards of the land.9 This synthesis of moral and legal argumentation demonstrates that the two categories are not mutually exclusive. Indeed, in appeals made to legal justice the moral system underpinning these claims is often taken for granted or ignored. A goal within this thesis will be to deconstruct facile separations such as these; however, not before tapping their analytical 11 potential. As Latour (1993) has described in reference to artificial separations of culture and nature, it is our tendency to construct distinctions and then to act as though they really exist as a natural division. But before we dismiss the separation as a construction, it is first necessary to examine the impact this division has upon the way we view and experience the world. Along these lines, those making moral claims for justice tend to base their arguments on precepts that intermingle with legal codes, but which, in their minds, transcend these codes and speak to a higher order. Such claims are offered both in support of and in opposition to treaty- making. In support, arguments are made concerning the dire conditions of many First Nations reserves, pointing out that the colonial past has contributed to, or caused, current First Nation hardships. Given that non-Aboriginal well-being is predicated on the resources and land taken from First Nations, this argument continues, it is only fair that redistribution and recognition be provided to right this historical wrong. Thus, from this perspective, it is determined that a clear- cut wrong has occurred (regardless of whether or not this wrong was codified legally) and reparation is in order. Furthermore, the long history of forced assimilation and the assault on Aboriginal cultures in British Columbia, in combination with the expropriation of lands, are viewed here as lending credence to the justice claim that changes need to be made. Poole (2000: 5) suggests that such a moral sense is inescapable: "I suspect that almost all the citizens of Canada... - even those who are most vehemently opposed to the claims of indigenous people - are uncomfortably aware of the immense injustice that lies at the core of their nation's history." Poole's insight does appear to hold true for those who present justice claims against treaty-making, since these people rarely deny that great hardships have been placed on First Nations in B.C. However, instead of sympathizing with First Nation demands for reparation, these individuals lodge moral claims that emphasize the importance of cross-cultural 'equality'. 12 From this perspective, present generations should not be held liable for crimes committed by earlier generations. What is most important is that the past be left behind so that a better future can be constructed based upon the equality and liberty of all citizens. For those persuaded by this viewpoint, treaties threaten to re-enforce the distinctness and "special interests" of a particular ethnic group, which will lead to further differentiation between people rather than fulfilling a liberal ideal of uniform citizen rights and responsibilities. The discourse of justice operationalized within the B.C. Treaty Process often attempts to balance these two perspectives. However, while the authors of the report that is the foundation of the BCTC Process - The Report of the British Columbia Claims Task Force (1991: 16) - agree that "...the relationship between First Nations and the Crown has been a troubled one", they do not go so far as to make a strong moral claim about the need for treaties. Instead, the theme of the Report, as well as much of the tri-partite discussions about treaties (see, for example, BCTC, 2000, Federal Treaty Negotiation Office, 1996), concerns the need to build better "future" relationships between Aboriginal and non-Aboriginal groups within the province, thereby minimizing the issue of justice. These issues, as well as the socio-historical project of certainty, will receive more attention in Chapters 2, 3, 4, 5 and 6. In these Chapters, I will provide examples of how 'justice' claims directed at unsettled Aboriginal rights and title have been framed by non-Aboriginal and Aboriginal persons from contact until the formation of the B.C. Claims Task Force and the B.C. Treaty Process. Specifically, Chapter 2 details some of the early discourses and processes mobilized by the non-Aboriginal governments to forward the justice claim that First Nation land claims had been adequately addressed. In contrast, Chapter 3 examines how First Nation groups and their supporters have succeeded in refraining this colonial perspective through direct action 13 and court cases, creating the general impression amongst the mainstream population that grave injustices were, and continue to be, committed in the province of British Columbia. However, the widespread acceptance of a justice claim is not an end but rather a new beginning. Once such a frame has gained currency, it must then be put into effect in terms of establishing procedures directed toward producing substantive ends intended to 'repair' the injustice(s). Chapter 4 overviews the development of the B.C. Treaty Process, analyzing it as an example of the proceduralization of specific justice and certainty claims. Chapter 5 discusses and deconstructs the separation of procedural and substantive justice and explores potential problems that could arise in the B.C. Treaty Process on the basis of specific procedural preconceptions, as well as from interference stemming from the process's other dominant discourse, certainty. Chapter 6 examines empirical examples of justice claims issued by participants in the treaty process and argues that these discourses are increasingly being usurped by the discourse of certainty. c) Certainty Certainty, like justice, is 'framed' in different, and sometimes contradictory, ways. Moreover, the manner in which certainty is framed can have a significant impact on the way in which justice is framed, the process of justice employed, and the end results of the justice process. In contrast to the abstract quality of justice claims, appeals to certainty express a view of the 'real' world, of 'common-sense', of pragmatic actions that need to be taken in order to secure or enhance our situations under current global, political-economic circumstances. In Weber's (cl922-3 [1946]: 220, 298-9) terminology, certainty can be considered the formal rationality that 14 sits in contrast to substantive justice. Whereas the former is oriented toward norms rationally established in accordance with pre-defined ends, such as the maintenance of a particular political-economic system, the latter is "...oriented toward some concrete instance or person." In this sense, substantive justice addresses the specific needs called for by the injustice that has been experienced, while certainty asks that the present not be disrupted in repairing the past. Technically, certainty refers to a " technique that is intended to define with a high degree of specificity all of the rights and obligations that flow from a treaty and ensure that there remain no undefined rights outside of a treaty" (Stevenson, 2000: 114). Indeed, certainty is only one such legal technique, and it represents a significant shift from previous techniques used to achieve the same ends. Traditionally, Canada required a "blanket extinguishment" of Aboriginal rights in exchange for the rights defined in a treaty. This was accomplished by having the First Nation sign an agreement saying they "cede, surrender, and release" all undefined Aboriginal rights and hereafter will exercise only those rights delineated in the treaty.10 First Nations across the country find this phrasing offensive because it erases by act of government much that is essential to Aboriginal identity - their tie to the land and the rights bestowed on them by the Creator. There are also pragmatic reasons for First Nations to reject this wording. The absolute certainty sought through the language of extinguishment is not practical (B.C. Claims Task Force, 1991). The world is far too unstable a place for a single document to remain relevant over all time. Instead, the new concept of certainty aspired to through treaties, produces a "reasonable certainty" that includes "predictable procedures for revision and amendment" (BCTC, 2000: 24). However, the language that will be used to establish this new concept of certainty is still an issue of considerable debate. In the Nisga'a Final Agreement, a modern day treaty settled in 15 B.C. outside of the B.C. Treaty Process, the text of the treaty states that the Aboriginal rights of the Nisga'a will be "modified" (Molloy, 2000; Nisga'a Final Agreement, 1998).11 However, this reformulation of certainty has not decided the matter, as many First Nations feel that "modifying" Aboriginal rights is little different from "extinguishing" Aboriginal rights (see UBCIC, 1999: 16). In general, there are a range of perspectives on certainty that differ according to the emphasis they place on "finality" and the extent to which they recognize Aboriginal rights. For those who stress the need for finality, their interests usually lie in establishing a particular form of certainty - economic certainty. The undefined nature of Aboriginal rights in B.C. has produced a situation of 'uncertainty' in which investors and developers are unsure of the security of projects taking place on Crown land in B.C. A survey of representatives from B.C.'s forest products, oil and gas, and mining industries conducted by Price Waterhouse (1990) suggests that the following factors continue to create uncertainty for their operations: the unsettled nature of who has rights and access to land and resources; the risk that production or shipment could be disrupted by court injunctions or blockades which will affect the company's reliability as a supplier; and the possibility that treaty settlements may redistribute land without providing satisfactory financial compensation to affected companies. These factors have led some in the business community to support a model of certainty that emphasizes "finality" with respect to the nature and scope of Aboriginal rights and jurisdictional authority. The Business Council of British Columbia (1997), for example, recommends that the government employ the same language of certainty in all treaties signed through the B.C. Treaty Process, and suggests that the language of extinguishment is the most effective means for achieving the goal of finality. Both the provincial and federal governments 16 also see the need for finality, as this will, in their eyes, prevent future conflicts over Aboriginal rights and title and build a more stable environment for investment. In contrast, some Aboriginal and justice-based perspectives on certainty claim that "finality" means greater uncertainty for First Nations. In effect, First Nations are asked to gamble the rights of future generations on treaty rights that are untested (Stevenson, 2000). In the words of Bi l l Wilson (1985: 62): generation or special group has the right to sign away the rights of any future generation. Even if land claims are resolved today, the future descendents of the original occupiers of the land will be entitled to negotiate their own bargain in regard to aboriginal title and rights. Here, the tension between justice and certainty becomes apparent. Wilson presents a view of certainty based upon principles of justice; arguing that it would be an injustice to the future generations to saddle them with a deal from which they cannot extricate themselves. From this perspective, there is no absolute truth to which the negotiators of treaties can attach themselves, and, therefore, there is no possibility of fixing relationships for all time; instead, treaties must reflect the contingency of life rather than imposing an absolute and final relationship (Macdonald, 2000). Chapter 7 will provide a more extensive discussion of the topic of certainty, although the spectre of certainty will be present in preceding chapters. Modern conceptions of certainty will be located within the broader projects of neoliberalism and globalization. In particular, certainty will be conceptualized as a tool of neoliberal governmentality (Foucault, 1991; Rose, 1993; Burchell, 1993) through which the province and Canada seek to encourage First Nations to regulate and assimilate themselves according to the logic of global capitalism. Chapter 7 will 17 then analyze prevailing visions of certainty, discussing the options that exist for treaty-making between justice and certainty. 1.3 Some Notes on Methodology The goal of my research was not to locate any discernible 'truth' about treaty-making; instead, I endeavored to ascertain a variety of 'visions' of justice and certainty from individuals participating directly in the BCTC process, as well as those outside of the process who are skeptical or critical of its promises. Given the breadth of this objective, it was necessary to employ a variety of research methods, and collect diverse forms of data, to gain perspectives on treaty-making that go beyond the 'party-line' as presented in First Nation, government, and BCTC-sponsored public documents. Over a four year period, I gathered together archival and other written materials, interview transcripts, and notes from treaty-related meetings, placing these materials in conversation with one another in order to create a broader dialogue on the issues of justice and certainty. In general, my research strategies can be divided into three forms: document analysis, qualitative fieldwork, and qualitative interviews. a) Document Analysis Documents related to treaty-making and the "land question" in B.C. were collected from all periods of the post-contact history of the province. Initially, this involved a literature review of academic writing on the topic of land claims and treaty-making in British Columbia and Canada, as well as documents that discuss similar matters in other former colonies such as Australia, New Zealand, and the United States. Through this literature, I sought to raise my 18 "theoretical sensitivity" (Strauss and Corbin, 1990) to the subtleties of meaning that may present themselves in my data. This research also served the purpose of stimulating the questions I would later ask of the historical documents and the interviewees. Once this general basis of knowledge was gained, I began an overview of historical documents relating to land claims in B.C., including the text of earlier Commissions (such as the McKenna-McBride Royal Commission) and legal cases that set the contours of current questions of Aboriginal title. More recent historical documents relating to the formation and development of the BCTC process were also gathered and reviewed. These documents - such as the B.C. Claims Task Force Report, government documents on treaty making, signed agreements between the negotiating parties, First Nations reports on their views of treaty-making, BCTC reports, texts of agreements in principles (AIPs) and proposed AIP chapters, as well as many others - were an invaluable source for providing a sense of how participants in the process wanted to present the process to the public. It was through this literature that the prominence of the issues of 'justice' and 'certainty' became most apparent. Furthermore, media reports and other documents produced 'outside' the process since its inception were examined. These documents, as well, offered representations of what the BCTC process means or should mean within the context of modern-day British Columbia. The importance of these documents to this project cannot be understated. As a whole, they represent a cultural fund from which researchers and participants in treaty-making draw information that they shape in order to help them organize and order the complexity of the B.C. Treaty Process. Of course, the paper trail documenting the history of treaty-making in B.C. is extensive (seemingly infinite), and is more than one dedicated researcher, let alone the average citizen, can digest in a reasonable time. Therefore, despite efforts to accumulate all relevant 19 information, the sources assembled in this thesis are partial and represent only a sampling of the resources that lay before any interested party. In this sense, the history presented here should be understood merely as a narrative, as a story told about how the issues of justice and certainty have come to present themselves in their modern forms. b) Qualitative Fieldwork The public nature of the treaty-related meetings I attended permitted me to avoid some of the challenges of access, or "getting in" (Shaffir and Stebbins, 1991), faced in projects where the researcher tries to enter a private setting. This said, it was still essential to establish trust in the different settings with people who would later be contacted for interviews. Early in my research I benefited from my supervisor's connections, as he was able to assist me in getting permission to attend the meetings of the First Nations Summit. At these meetings, First Nations leaders from across the province convene to discuss pressing issues related to treaty-making and to devise strategies for addressing these issues. The sensitive nature of the topics discussed at these meetings can be a cause for a suspicion of outsiders; therefore, it was necessary that we conduct ourselves both respectfully and anonymously to guarantee our invitation would not be revoked. The other meetings I attended were open "main" table and "side" table treaty negotiations taking place in the lower mainland area, public information sessions designed to keep the public up-to- date on local treaty issues, Regional Advisory Committee (RAC) and Treaty Advisory Committee (TAC) meetings at which local sectoral representatives and members of municipal governments provide advice to and raise issues with provincial and federal negotiators, and local talks related to the issue of the B.C. Treaty Process. Nevertheless, there were some treaty- related conversations to which I was not privy. In particular, the parties occasionally elected to 20 hold closed negotiations if they were dealing with a matter they felt to be exploratory and therefore potentially controversial. Typically, the content of these talks were later made public after the parties had finished their 'brainstorming' and had decided on a clear direction. It should also be noted that the work of treaty-making does not solely take place at formal negotiation tables. Quite often negotiation breakthroughs and other significant happenings take place through informal talks, for example over lunch or during a private phone conversation. These often impromptu conversations are not accessible to most researchers, making candid interviews with the parties essential for understanding what happens away from the formal tables. At various treaty settings I became a familiar face, and this assisted me greatly in later seeking interviews. More importantly, at these meetings I was able to observe the different understandings of justice and certainty possessed by individuals directly and indirectly involved in treaty-making—watching these perspectives come into conflict or conversation with one another, and harden or change as more information became available, or as the person gained more experience in, or became more acclimatized to, the treaty-making process. These meetings also offered an opportunity to examine the forms and strategies of communication employed by different parties in the treaty process, and provided a sense of the different ways in which parties listen to (or ignore) and understand (or misunderstand) one another. Observations of this order were crucial for developing a sense of the challenges of procedural justice, which will be a topic of discussion in Chapters 4 and 5. 21 c) Qualitative Interviews Both the documents analyzed and the meetings attended can be understood as forms of performance. In each, the author or the participants are presenting to the reader/observer a particular ideal, a vision of what they feel the treaty process is or should be (see Goffman, 1956). For this reason, the document analysis and qualitative fieldwork were complemented by 51 semi- structured interviews. The purpose of these interviews was not to access the hidden and underlying truth of the B.C. Treaty Process, but instead to understand how those involved in treaty-making interpret and cognitively organize the multiple messages about treaty-making they receive. Included in my sample of interviewees were several former and current Commissioners from the BCTC, all three of the Chief Commissioners who have guided the B C T C since its inception, as well as the BCTC's communications manager and one of their treaty analysts. Interviews were also conducted with chief negotiators, negotiators, high-ranking bureaucrats, and consultation managers working with the federal and provincial governments. Representatives from lower mainland First Nations (i.e. Musqueam, Tsawwassen, Tsleil- Waututh, and Squamish) were interviewed, along with representatives of the First Nations Summit and a representative from one of the First Nations groups opposed to the treaty-making process, the Union of B.C. Indian Chiefs. Furthermore, interviews were conducted with academics and lawyers who had long been involved in treaty-related issues. Finally, conversations were held with individuals involved in the B.C. Treaty Consultation Process, including members of the RACs, TACs, and the Treaty Negotiation Advisory Committee (TNAC). Many of the interviewees had been involved in the BCTC treaty process since its inception and provided me with personal narratives of their experiences in the process. In conducting interviews, the goal was to gather crucial background information about the treaty process and individual interpretations of certain aspects of the process, in particular justice and certainty. In this sense, my interview style could be classified, following Kvale (1996: 5-6), as a "semi-structured life world interview", which is: " interview whose purpose is to obtain descriptions of the life world of the interviewee with respect to interpreting meaning of the described phenomena." To reach this goal, interview questions were prepared beforehand based on research about the particular individual's role in the treaty-making process and knowledge of his or her past treaty-related activities. These questions acted as guides to ensure that certain themes would be covered in the course of the interview. However, the questions did not follow any rigid order and instead I reorganized them throughout the course of the interview so follow-up questions would follow naturally on the interviewee's comments. In this regard, an attempt was made to conduct the interview in a conversational style so as to ensure the interviewee's comfort and encourage responses based on their personal understandings of the issues, and not entirely on how the issue is understood officially by the party they represent. Questions often took the form of an open request for the interviewee's interpretation of a topic related to issues of certainty or justice. Other questions were based upon information obtained from other interviewees, asking the current interviewee to respond to a particular criticism or comment. In the end, the variety of visions of justice and certainty presented in the interviews was surprising. Furthermore, many interviewees strayed from the official visions of justice and certainty proffered by the parties they represent and gave, in contrast, their interpretations or criticisms of these visions. In particular, the interviews conducted were instructive in demonstrating the challenges individuals involved in the process face in finding a space between justice and certainty. The diverse research strategies employed in my methodology exposed me to a wide variety of ways in which meaning is constituted within the B.C. Treaty Process. Moreover, as a researcher observing the process, and interacting with those engaged in it, I was able to witness the 'symbolic violence' employed by those with greater power to shape the process and their attempts to make some visions of justice and certainty more prominent than others. This provided me with a sense of which visions of justice and certainty are excluded from the treaty negotiation process, and the remainder of this thesis represents an effort to explain how and why these visions have been excluded. d) Tools for Analysis The term "frame" is used within the social movements literature to describe " interpretive schemata that simplifies and condenses the 'world out there' by selectively punctuating and encoding objects, situations, events, experiences, and sequences of actions within one's present or past environment" (Snow and Benford, 1992: 137). These frames are often derived from broader "master frames" (Snow et al, 1986; Snow and Benford, 1992; Carroll and Ratner, 1996a and 1996b), which are generic schemata of interpretation that serve as a touchstone for opinion and action formation. The term "frame" is borrowed from the ethnographic work of Erving Goffman (1974: 10) who viewed a "frame" as an organizer of experience which is used to build a definition of the situation. This concept has particular relevance to the field of social movements because it helps overcome a recurring question about collective mobilization, namely: why do people participate in social movement activity (Snow et 24 al, 1986; Snow and Benford, 1995)? Prior to the development of frame analysis, social movement researchers lacked adequate tools for discerning the meanings and interpretations participants attach to specific agreements and the manner in which these meanings may change over time (Snow et al., 1986). However, the utility of frame analysis is not limited to the field of social movements. In negotiations concerning past injustices that have implications for a wide variety of people, frames are employed to orient the actions of the individuals involved; indeed, they are appealed to in attempts to produce or maintain a particular meaning or definition of the situation. In this sense, notions of certainty and justice are "framed" within specific discourses of treaty-making. Participants in and opponents of the B.C. Treaty Process operate within a field of contestation in which they attempt to forward particular visions, or frames, of justice and certainty. These frames are often drawn from or based upon overarching master frames such as a liberal ethos of equality, a capitalist ethic of fair competition, or an Aboriginal sense of sovereignty. Thus, actors involved in treaty-making both seek to frame the injustices that have occurred and the social visions of justice (and/or certainty) to which they aspire (Carroll and Ratner, 1996b). The objective of this analysis, and the use of the concept of frames, is not simply to describe the various visions of injustice and treaty-making that are available in modern-day B.C. Rather, a normative intervention will be made into the field of frame contention, examining the possibility that particular justice and certainty frames present for a transformative reparation of past injustices. In this aspect, I follow the lead of Carroll and Ratner (1996a: 602) who, operating from a neo-Gramscian perspective, see framing as central to counter-hegemonic politics since it is through this device that alternative visions of the future are presented. 25 1.4 Balancing Justice and Certainty The project of treaty-making is that of finding a balance between justice and certainty; it is a matter of contending with the past so as to guarantee a better future. However, this project is confronted by many hazards. Parties to the treaty-making process each have different emphases, leading them to prioritize either justice or certainty, either the past or the future. This is not an uncommon phenomenon in conflict resolution, and it has been described by authors elsewhere as being a tension between "too much memory" and "too much forgetting" in South Africa (Minnow, 1999) or between "justice" as an ideal and "peace" as an immediate pragmatic requirement in the former Yugoslavia (Doubt, 2000). The challenge is to overcome the tendency to fall into an either/or bind and to recognize that certainty and justice need not be mutually exclusive. However, it is also important to recognize the social context of British Columbia's treaty negotiations and how this context can play a role in privileging discourses of certainty over discourses of justice. In the present neo-liberal political climate, economic discourses hold currency, and are seen as the prevailing "common-sense". The ascendancy of this economic pragmatism does not bode well for the goal of justice since justice is difficult to ascertain and to agree upon. Under these conditions, it is possible that we may find ourselves in the ironic situation of trying to deal with the past without actually discussing it because justice seems too lofty a goal in the face of concrete market imperatives. The chapters that follow will make a case for the need for justice in British Columbia's treaty-making, and demonstrate the risks of concentrating too heavily on achieving certainty, as well as the repercussions this may have for long-sought reconciliation. 26 1.5 What is to Follow Chapter 2 presents an historical account of the relationship between justice and certainty in British Columbia. Prior to the second half of the twentieth century, the certainty of colonial land acquisition for settlement and economic development was achieved and maintained through the imposition of colonial justice on the First Nations peoples of British Columbia. First Nations' demands for recognition of their Aboriginal title to the lands were both ignored and prohibited during this early period, and mechanisms were installed by the non-Aboriginal governments to forcibly assimilate First Nations persons in order to put an end to these justice demands. However, the development of a neo-enlightenment liberal political rationality after World War Two contributed to a move away from control-based strategies for achieving certainty toward seeking First Nation consent for non-Aboriginal visions of justice and certainty. This change in the non-Aboriginal governments' political strategy with regard to the land question in B.C. was in part motivated by the social movement and legal activity engaged in by First Nations at both the provincial and national levels. These attempts by First Nations to challenge and 'reframe' white visions of justice and certainty are described in Chapter 3. Indeed, First Nations in B.C. succeeded in creating a significant degree of 'uncertainty' for the non-Aboriginal governments and for businesses in B.C. through their legal victories and protest actions. The end result of their efforts was the establishment of the B.C. Treaty Process. No longer would justice simply be imposed on First Nations in B.C.; instead, they were to have a role in designing a process through which they would negotiate a resolution to the land question with the governments of Canada and British Columbia. Chapter 4 details the procedural components of the B.C. Treaty Process. The emphasis in the chapter is on the limitations of this process; in particular, on the power imbalances that 27 exist between First Nation and non-Aboriginal government actors engaged in the process and the consequences these power imbalances have for the fair resolution of treaties. One important consequence that will be discussed is how the material and symbolic advantages possessed by the non-Aboriginal governments provide them with the opportunity to define the nature of the negotiations in a manner that privileges visions of certainty affirmative of the socio-economic and legal status quo over visions of justice that demand a serious moral reckoning with the past. Chapter 5 will take a broader perspective on the question of procedural justice, arguing that procedural safeguards are insufficient for guaranteeing a just resolution to a long-standing conflict. It wil l be suggested that consideration of the substance of justice, of the ends the parties hope to achieve, needs to be made prior to negotiations and should be the basis for the justice procedure that is developed. Nancy Fraser's (1997) model of the 'dilemmas of justice' is recommended as a starting point. This model could serve as an heuristic tool for understanding both the symbolic and material justice demands of B.C.'s First Nations. It also allows for the examination of the potential consequences of pursuing reparative strategies that either affirm or transform the social context in which the injustices initially occurred. This evaluative aspect of Fraser's theory is utilized to develop the concept of 'affirmative reparations', a term I use to describe the likely substantive results of the B.C. Treaty Process. Chapter 6 outlines how the affirmative thrust of treaty negotiations is manifested in the discourses employed by actors engaged in the B.C. Treaty Process. In this chapter, I demonstrate how certain visions of justice are made inadmissible to the treaty process. Indeed, only those visions of justice compatible with a particular vision of certainty - one the reaffirms and solidifies the political, economic and legal interests of the non-Aboriginal governments and industry - are perceived as being 'sensible' or 'realistic'. Thus, the B.C. Treaty negotiations are 28 characterized as being directed by the 'symbolic violence' (Bourdieu, 1991) of non-Aboriginal government visions of justice and certainty. But what does certainty really mean in the context of the B.C. Treaty Process? Chapter 7 seeks to address this question by exploring the divide between Aboriginal and non-Aboriginal visions of certainty that are presented at the treaty negotiation tables. Here, I characterize the specific forms of political, economic, and legal certainty sought by the non-Aboriginal governments as responses to broader social processes of globalization and neoliberalism. It is in this context, I argue, that visions of justice are limited to those congruent with visions of certainty that affirm rather than transform existing social and economic relationships within British Columbia. Chapter 8 applies the arguments developed in the preceding chapters to the most recent development in the B.C. Treaty Process, the B.C. Liberal's referendum on their negotiation mandate. Through the referendum, the B.C. Liberals hope to gain public support and approval for a series of controversial negotiation positions. This quasi-democratic exercise has caused great offense amongst First Nations in British Columbia, and I argue it removes the province even further from realizing the goal of justice. Endnotes 1 The terms First Nation, Aboriginal Nation, and Indigenous Nation will be used interchangeably throughout this dissertation. 2 B.C.'s First Nations are not alone in having to wait for treaties. First Nations in the Yukon and Quebec did not arrive at treaty settlements with the federal government until the latter half of the twentieth century. 3 It is not accurate to portray First Nations land claims in British Columbia solely as a movement for 'reparation' given the legal basis of their claims. Therefore, the term restitution is added here to reflect B.C. First Nations demand for the return of lands illegally taken from them. However, there is still a reparative element to the treaty negotiations since, in the eyes of many involved, the purpose of these negotiations is to 'repair' a past that has left First Nations in a marginalized and culturally-dependent position. 4 This is because the federal and provincial governments have established a per capita amount in land, cash and resources that they are willing to distribute to First Nations through treaties. High land values, therefore, mean that land distributed will account for a large proportion of the final settlement. 29 5 The issue of compensation is certainly not limited to urban First Nations, but it receives its most support from these groups. 6 The non-Aboriginal governments argue that capacity-building interim measures are needed in order to allow First Nations to develop better systems of government that will enable them to handle 'real' interim measures. This paternalistic rationale, however, likely combines with non-Aboriginal government - in particular provincial government - economic concerns that the protection of lands and resources for interim measures agreements could lead to a reduction in the government revenues received from resource extraction. 7 See Appendix B for a glossary of terms. 8 That is, unowned or unoccupied land. 9 Notions of the 'sacred' and of 'sacred land' are difficult to translate into non-Aboriginal terms. Too often Aboriginal notions of the 'sacred' are equated with the western meaning of this term. In fact, this conflation of Aboriginal concepts of the sacred with the western understanding of the term is often a necessary political maneuver for First Nations seeking to protect sites of cultural importance. For example, at the Tseil-Waututh negotiations the negotiators for the First Nation made strenuous efforts to draw parallels between major events in their cultural development and those that occurred in Europe. Activities such as these exemplify how First Nations are forced to prove their humanity, and their prior existence, in accordance with European norms. In this regard, 'sacred sites' that may not have been fixed geographic points are often defined as such so that recognition of their existence can be gained within the system of European property ownership (see Brody, 2001). 1 0 For examples of the language of extinguishment as used in treaty, see Editor Officiel du Quebec, 1976 James Bay and Northern Quebec Agreement, clause 2.1; see also Department of Indian and Northern Affairs, 1984, Inuvialut Final Agreement Ottawa, clause 3(4). 1 1 Aboriginal rights are 'modified' in the sense that they are transformed into constitutionally-protected rights under Section 35 of the Canadian Constitution. Aboriginal rights that are not defined through the treaty are subsequently 'released' rather than 'extinguished'. 1 2 In some respects, the conversation created amongst the documents of my study, can be likened to Habermas's 'ideal speech situation', which is discussed in Chapter 5. My objective was to open the dialogue to all visions and to provide each with equal voice within my research project. However, as I will argue later, the ideal speech situation faces its own limitations, such as the need to translate our understandings of the world into a common language, and the performances that individuals employ in communication in an effort to present a specific impression or 'face' (Goffman, 1967). Therefore, it was necessary that I deconstruct these performances and impositions of meaning in order to understand what can and cannot be said in the context of treaty-making; that is, in order to understand why the treaty process itself is not truly an open dialogue. 30 CHAPTER 2: THE IMPOSITION OF COLONIAL VISIONS OF JUSTICE "Canadians had acquired complete control over the land in a manner consistent with British colonial policy - by some negotiation but chiefly by occupation, by settlement, and by reserving lands for the Indians. In their conception the title to the province of British Columbia was acquired in a moral manner, legally, and in accordance with their ideas of justice even though a treaty was never negotiated, as in other provinces" (La Violette, 1961: 11) La Violette's statement captures the thrust of colonial visions of justice in B.C. 1 For the most part, they felt that the First Nations of this region were being treated in both a fair and just manner. Although the 'land question' was a central issue of governance from the time of contact onward, it is rare to find instances of public officials questioning the correctness of applying European moral precepts to the 'Indians'.2 Indeed, these officials saw their role as one of 'elevating' the Indians of British Columbia to the 'civilized standards' of the white man. This vision of white benevolence in the early dealings with the First Nations of British Columbia has become deeply entrenched in the Western Canadian mindset (Furniss, 1997/98), despite the publication of contrary narratives that retell the history of the province as one of the subjugation and attempted assimilation of First Nations peoples. Moreover, this view of benevolence is what Tennant (1990) refers to as the "white founding myth of British Columbia" - a view that portrays First Nations as too primitive at the time of contact to have formed organized societies, and which portrays colonial policy toward them as being 'liberal' - which appears to be a crucial element of a Western Canadian non-Aboriginal identity built upon an image of the 'peaceful' and 'cooperative' expansion of the Dominion. Although it has not fully penetrated the collective consciousness of the province, the history of the injustices visited upon First Nations during the colonization of British Columbia is quite familiar in academic circles, and has been retold using various interpretive lenses (see, for 31 example, Clayton, 2000; Culhane, 1997; Duff, 1964; Fisher, 1977; Knight, 1978; La Violette, 1961; Menzies, 1999; and Tennant, 1990). While some are accused of moralizing and being 'presentist' in their assessments of the past, others claim to operate from a perspective of historical objectivity as they recount the history of non-Aboriginal/Aboriginal relations in the province. Given the focus of my research on current processes directed toward repairing the past, it is unavoidable that I venture into areas that some would argue are better left to historians. However, the 'frames' drawn upon to present particular visions of justice within the current context of treaty-making have deep roots within the political-historical development of British Columbia. To bypass historical discussion would be to overlook crucial stages in the formation of modern views on land claims. In contrast, however, to more comprehensive historical narratives of B.C.'s past, my intent in this chapter is more limited. It is not my objective to present a definitive or authoritative version of the history of Aboriginal/non-Aboriginal relations in British Columbia; instead, I hope to abide by the tenets of historical sociology, which according to Abrams (1982), "... is not ...a matter of imposing grand schemes of evolutionary development on the relationship of the past to the present. Nor is it merely a matter of recognizing the historical background to the present. It is the attempt to understand the relationship of personal activity and experience on the one hand and social organization on the other as something that is continuously constructed in time. It makes the continuous process of construction the focal point of social analysis." This line of historical questioning has much in common with "genealogical" approaches to history that are based on the work of Michel Foucault. According to Foucault (1980: 117), genealogy is " . . .a form of history which can account for the constitution of knowledges, discourses, domains or objects etc, without having to make reference to a subject which is either transcendental in relation to the field of events or runs its empty sameness throughout the course 32 of history." However, although I am sympathetic to this and other approaches that encourage a break with "meta-narratives" of history (see also Lyotard, 1984), I do not situate my own approach within the field of postmodern historiography because of concerns about the tendency of its practitioners to disregard the effects of structural processes on recurring patterns in historical construction. My approach, therefore, will be to show the interconnection between structural processes and individual agency, demonstrating both the continuity and discontinuity between past constructions of justice and certainty with regard to First Nations and present attempts to resolve the land claims issue in British Columbia. 2.1 Before Settlement The justice frames that presently serve as the basis for contesting claims to Aboriginal title precede the establishment of British Columbia as a colony, and, in fact, precede contact with the First Nations of this region by several years. It is beyond the scope of this thesis to trace the ideological formulation of the doctrines of 'discovery' and 'conquest' that conditioned British policy in the 'new' lands; however, it is possible to pinpoint the date they were officially defined in British Common Law. In 1722, a memorandum of the Privy Council stated that 'discovery', or occupation, could be declared if the land was unoccupied, while 'conquest' occurred when land was won from its indigenous inhabitants (Culhane, 1997). These broad legal definitions left much room for interpretation on the part of those charged with carrying forth the mission of the British Empire. Especially with regard to the doctrine of 'discovery', ethnocentric standards of judgement and a utilitarian desire to acquire lands and resources held by indigenous persons prevented colonial officials from making accurate assessments of whether or not the land was 'occupied'. Later government arguments against Aboriginal land claims in B.C. would 33 invariably return to these early doctrines, suggesting that the First Nations of B.C. did not truly 'occupy' the lands they claim, or that they were implicitly 'conquered' given the length of colonial domination over the region. By 1763, a third frame of reference for defining Aboriginal/non-Aboriginal relations in the 'new' world was made available, demonstrating the limited nature of either the 'discovery' or 'conquest' distinction. In October of that year, following the capture of Quebec, King George III gave official sanction to the practice of treaty-making in his Royal Proclamation (Duff, 1964). This document, which had the force of a statute in the colony, established a new policy with regard to Indian lands. In particular, the Proclamation advised that the Indians of the already established colonies, as well as in areas as yet to be established, be left 'unmolested' in the possession of their lands, and that any new lands acquired be voluntarily ceded to the Dominion through treaty rather than arbitrarily claimed, or privately purchased.4 Tennant (1990) has suggested that the motivation for this policy change was the desire to maintain good relations with the Indians along riverways that were important both for controlling the fur trade and for purposes of military defense (see also Dyck, 1991). Nevertheless, with its acknowledgement of pre-existing Indian occupation and ownership of lands hitherto viewed as under British sovereignty, the Royal Proclamation legitimated in British and Canadian law the land claims of those groups who did not cede their lands to the Crown through treaties. In this sense, the Royal Proclamation has fueled a counter-discourse within the B.C. land claims debate since First Nations and their supporters read it as an unfulfilled promise. More will be said on these debates below and in Chapter 3. For now, it is important to note that despite the existence of these formal statements on Aboriginal/non-Aboriginal relations in the colonies, those involved in the colonization of British Columbia from the late eighteenth to 34 the mid-nineteenth century seldom found it necessary to reference these documents to support their actions. At the point of first contact between Europeans and the First Nations who inhabited the western coast and the interior of what is now British Columbia, the parties operated in accordance with their own normative systems of regulation, and the contrasting systems only occasionally came into conflict with one another. Up until the mid-1800s, before there were many settlers in this region, European 'justice' was imposed on First Nations only in circumstances where the latter threatened or attacked fur traders or prospectors, or disrupted other Hudson Bay Company (HBC) activities. In these situations, the justice that was meted out was swift, brutal, and often arbitrary.5 For example, as Knight (1977) reports, after the Hudson Bay Company absorbed the North West Company in 1821 it gained a direct interest in the region that was then called New Caledonia (now modern day B.C.). The HBC operated as the colonial government in this area under the authority of the British Crown, but in the early days of fulfilling this role it did little to impact the political autonomy of First Nations in B.C. The company was moved to interfere with First Nation's affairs only in situations where a particular First Nation threatened the trading peace. Such was the case when it was presumed in 1828 that members of the Klallam Nation in the Puget Sound murdered Factor Alexander Mackenzie and his party as they were returning from Fort Langley. In response, the HBC sent a regiment of 60 men who burned and shelled Clallem villages, killing at least 25 people without any assurance as to whether they had singled out those actually responsible for the attack on Mackenzie. Other than brief encounters such as these, each cultural group was able to function independently of the other. Since trade, rather than settlement, was the main focus of the British presence in the region, it appeared unnecessary to displace the First Nations from their lands. On 35 the contrary, as Fisher (1977) has made apparent in his analysis of both the maritime and land- based fur trade in the early nineteenth century, the First Nations were important trade partners with the Europeans, and both parties benefited, in some ways, from their economic relationship. The greatest impacts felt by these First Nations were through the introduction of new wealth and regional disparities based on First Nation trade successes (Fisher, 1977), the aforementioned HBC-imposed trading peace that interrupted the inter-tribal skirmishes that were not previously uncommon (Knight, 1996), and the spread of diseases, such as small pox (Duff, 1964). 2.2 Paternal Justice: Certainty Through Denial It was not until the mid 1800s that conflicts within the new relationship began to arise. At this time, the HBC saw the utility of encouraging greater settlement in areas where trading posts had been established. This decision came not as a result of a need to contend with overcrowding in Britain, which was the motivation for settlement in other colonized regions, but rather was based on the decline in the profitability of the fur trade and the sense that colonial activity in the region should be shifted to agriculture and resource development (Fisher, 1977). For this reason, the Indian "land question" became a pressing concern for the HBC. It was at this point that colonial policies toward First Nations shifted toward a politics of exclusion. The centrality of the First Nations to the fur trade was replaced by efforts to discipline First Nations and encourage them to become a subservient workforce in the emerging resource economy (Menzies, 1999). By 1846, Indians were perceived to have come under British Sovereignty (Fisher, 1977). Accordingly, the HBC felt it was in its colonial purview to decree which lands the Indians actually possessed; namely, those lands that the Indians had either cultivated or built upon. 36 Based on these European derived standards, the rest of the region was deemed open for settlement and economic development. In 1849, Vancouver Island was established as a colony with Richard Blanshard as its first governor. Blanshard had no previous connection with the HBC, and soon became frustrated with the slow transition the colony was making from fur-trading post to colonial settlement. After 18 months, he was replaced by the chief factor of the HBC, James Douglas, who truly wielded power in the region.6 The policies implemented by Douglas with regard to Aboriginal title are of foundational importance in the B.C. land claims debate since these policies set the parameters for arguments that continue today. a) The Douglas Treaties and Reserves Douglas initiated two very different forms of relationship between the Aboriginal and non-Aboriginal inhabitants of B.C. First, Douglas briefly engaged in treaty-making, following the standards set forth in the Royal Proclamation. Even prior to becoming governor, Douglas realized that First Nations lands presented a difficult challenge for the HBC. In 1849, he alerted the parent company of the need to purchase Indian lands. The HBC home office responded, basing their evaluation on a recent report of a House of Commons committee struck to examine the New Zealand Company, by suggesting that First Nations possessed only a "qualified Dominion" over Colonial lands. According to the committee, this consisted of the right to occupy lands, not title. Since British dominion over the region was considered to be in place from 1846 onward, Douglas was advised that Indians should only be considered in possession of lands built upon or cultivated prior to this date (Duff, 1964; Fisher, 1977). When Douglas became Governor of Vancouver Island in 1851 he proceeded over the next eight years to sign treaties with fourteen First Nations in areas where settlement had begun or was expected to spread (Knight, 1996). These treaties were often nothing more than blank pieces of paper to which text adapted from that used by the New Zealand Company was later added (Coates, 1998a; Fisher, 1977; Tennant, 1990). In their final form, however, the treaties conveyed First Nations lands to the HBC in the person of James Douglas "forever" (British Columbia, 1875). First Nation village sites and enclosed fields were kept for the Indians' own use, and Indians were also provided with the right to hunt on occupied lands and to carry out fisheries as before. In exchange for ceding lands, the First Nations received payments totaling between 27 and 86 pounds, and blankets and other goods from the HBC stocks.7 For what they surrendered to the HBC, the payments received by the First Nation signatories to these treaties seem, in retrospect, trifling. As well, a historical question mark remains around the issue of whether or not the First Nations were fully apprised of the meaning of the documents they signed. Therefore, it is surprising that the issue of who would pay for treaty settlements became a major stumbling block after the British Columbia Act of 1858 transformed "New Caledonia" into the colony of British Columbia. At this time, the HBC trading license on Vancouver Island expired and Douglas left his position as the chief factor of the HBC and became the governor of B.C. as well as Vancouver Island. But the fledgling colonies had great difficulty raising the funds necessary to pay for treaty settlements, or so Douglas claimed. Douglas appealed to the British government, but to no avail (Tennant, 1990). Around the same time, the gold rush began in B.C. In 1858, approximately 20,000 miners entered the mouth of the Fraser River (Harris, 1997), and within a year the European and American population of B.C. increased ten to twenty fold (Knight, 1996). The potential for 38 conflict between miners and First Nations was great since the miners, in their search for riches, often ventured into regions controlled by First Nations. Moreover, the miner's sense of 'frontier justice' often drew them into violent confrontations with First Nations. Policing these encounters became a problem for Douglas's colonial government, and European 'justice' encroached deeper into First Nation lifeworlds. These encounters also demonstrated the need for establishing a system by which Aboriginal lands could be identified and distinguished from those open to pre-emption. With funds scarce, and the treaty process all but over, Douglas created what are now referred to as the "Douglas reserves". It was Douglas's view that these reserves should be set out for Indians in a manner that included their traditional sites of habitation and whatever fields they had cultivated, just as his earlier treaties had. His reasoning for this was that he did not wish to institute a policy similar to that used in the U.S., where Indians were forcibly removed from their traditional lands, and much violence and bloodshed ensued (Fisher, 1977). Nonetheless, he was reminded by E.B. Lytton, Secretary of State for the Colonies, that, although First Nations desires should be fulfilled to the extent that they allow First Nations to be self-sufficient, their connection to specific lands should not be permitted to impede European progress (British Columbia, 1875). In general, the Douglas reserves were set out not by legislative act, but rather according to executive decisions made by Douglas himself (UBCIC, 1998). As for the size and dimension of these reserves, there are conflicting reports with regard to Douglas's intentions. Several surveyors and other colonial officials (as well as Douglas himself) are recorded as saying the policy was to let First Nations set the reserves themselves, according to their needs. However, for the most part, these reserves were laid out to be no more than 10 acres per family, allowing future Chief Commissioner of Lands and Works, Joseph Trutch, and others to later claim that 39 these are the reserve dimensions Douglas truly intended (British Columbia, 1875). Regardless of the size specifications, other features of the Douglas reserve system were the encouragement of missionary activity on reserves and policies permitting Indians to pre-empt lands off reserve (Tennant, 1990). Although the reserve system was being implemented, Douglas did not give up entirely on trying to forge treaties with First Nations. However, the British Imperial government remained adamant that agreements should be funded entirely by the colony. When Douglas wrote to the Secretary of State for the Colonies in 1961 requesting money for purposes of treaty-making he was told, "...the acquisition of title is a purely colonial interest, and the legislature must not entertain any expectation that the British taxpayer will be bothered to supply the funds..." (British Columbia, 1875). In sum, in the early stages of settlement in British Columbia we see both a confirmation of First Nation title to lands through a treaty process that asked them to 'cede' these lands to the HBC, and a denial of this possession through the designation of reserves. As we will see, the former eventually became idealized as a liberal policy worthy of revitalization in the form of the B.C. Treaty Process, while the latter came to be viewed as part of an assemblage of injustices imposed upon First Nations. b) Joseph Trutch Douglas left office in 1864 and was replaced by Frederick Seymour in the colony of B.C. and Arthur Kennedy on Vancouver Island. However, neither of these individuals would play as prominent a role as Joseph William Trutch (who in the same year was appointed Chief Commissioner of Land and Works and Chief Surveyor) in shaping colonial land claims policy. 40 Whereas Douglas is often forgiven his colonial impositions on First Nations (see, for example, Fisher, 1977 and Coates, 1998), Trutch is portrayed as the antithesis to Douglas's liberality. Certainly, Trutch was more blatantly hostile in his policies concerning First Nation's lands, stating outright the priority of European interest's, and, in doing so, he did not hide his distaste for First Nations cultures and societies. Nonetheless, Trutch operated in a period when European hegemony was becoming well-established, and the former partnerships between Aboriginal and non-Aboriginal cultures were a distant memory. Years of missionary activity, disease, and incursions by settlers had made the First Nations less of a military threat, and the shift in economic activity away from the fur trade had made them less integral to economic production. Although Trutch cannot be forgiven his colonial excesses, one should understand that this context of increased non-Aboriginal control provided him with the opportunity to develop a more authoritarian and paternal policy toward First Nations than that established by Douglas. Trutch saw a need for reserves to be more clearly defined than they had been under Douglas. In his mind, many of the reserves were either too large, or lacked clear boundaries, leading to problems as settlers and resource industries attempted to move into these areas. For example, with regard to the reserves situated along the Lower Fraser river, Trutch argued that the boundary lines be surveyed and marked " that the uncertainty now existing as to what lands are to be permanently held by the Indians may be terminated, and the risk of disputes and collisions between the white settlers and Indians as to their respective land rights be as far as practicable removed" (British Columbia, 1875). In cases where he felt the reserve was too large, Trutch believed he had two options as to how these boundary issues could be resolved. First, he could disavow the authority of the surveyor who had set the boundaries, and the reserve could be "surveyed afresh" to 10 acres per family. Second, the colonial government could negotiate with 41 the Indians for the relinquishment of these lands and compensation could be provided. Trutch viewed the former option as the superior one since, in his view, "[t]he Indians have really no right to the lands they claim...". At the same time, he recommended that "firmness and discretion" be used in order to convince the Indians that the government desired to deal fairly with them (British Columbia, 1875). In 1866, the colonies of Vancouver Island and British Columbia were merged as one. By 1871, the union of colonies, under the name of British Columbia, entered the Canadian confederation. Under the Constitution Act of 1867 s.91(24), Canada was made responsible for Indians and lands reserved for the Indians. However, the British North America Act (1870 s.92) placed control over Crown lands in the hands of the provinces. With these Acts a debate arose between Canada and B.C. since Canada's policy with regard to setting reserve sizes conflicted with that practiced by B.C. Whereas Canada used a formula of 80 acres per family to set its reserves, B.C was still in the practice of assigning only 10 acres per family. Moreover, B.C. had made one of its conditions of entry into the confederation that Canada continue to hold a policy with regard to Indians and their reserves as "liberal" as that previously exercised by B.C. (British Columbia, 1867). This ironic designation of liberality disguised the fact that B.C. land policy was a limit on the more liberal policy of the Dominion. Joseph Trutch, at this point, became Lieutenant Governor of the province, and was vocal in the debates with the Dominion regarding reserve policy. In response to John A. Macdonald's concerns about reserve size in B.C., Trutch argued: "The Canadian treaty system as I understand it will hardly work here (B.C.) - we have never bought out any Indian claims to the lands nor do we expect we should - but we reserve for their aid and benefit from time to time tracts of sufficient extent to fulfill all their reasonable requirements for cultivation or grazing. If you now commence to buy out Indian title to the lands of British Columbia - you would go back on all that has been done here for 30 years past and would be 42 equitably bound to compensate the tribes who inhabited the district now settled and farmed by white people equally with those in more remote and uncultivated portions. Our Indians are sufficiently satisfied and had better be left alone as far as a new system toward them is concerned" (quoted in Coates, 1998: 13). Despite Trutch's assurance that the Indians were "sufficiently satisfied", this issue would occupy the Dominion and provincial governments over the next 50 years. Over this time, different formulae would be devised to try to reach agreement between the two governments on appropriate reserve size. c) The Joint Review Committee After Confederation, the Dominion government appointed I. W. Powell and James Lenihan as its two Indian Superintendents in B.C. Neither man possessed extensive experience in dealing with First Nations peoples, and Lenihan proved to be incapable of engaging in Q discussions with First Nations leaders without offending them. The Dominion government initially hoped to establish a board for managing Indian affairs in the province that would consist of these two men and the Lieutenant Governor for B.C, who, at this time, was Joseph Trutch. However, Trutch was not interested in serving on such a board unless he was empowered to control its activities since he, in his mind, was the only member who had sufficient knowledge about the Indians of B.C. (Fisher, 1977: 180-183). The government of Canada was reluctant to hand over this power to Trutch because an awareness was forming amongst Canadian officials that there was great discontent in B.C. with regard to Indian land policy. Powell became convinced that if the furor over the land question was not addressed it would prove to be troublesome for both the Dominion and provincial governments. He managed at one point to negotiate an agreement between Canada and B.C. that 43 would have seen reserves increased to 20 acres per family, but B.C. backed out of this arrangement before it could be implemented. As the conflict between the two governments grew, William Duncan, a respected missionary in the northwest of the province who was regaled for 'civilizing' a group of Tsimshian, recommended that the two governments form a commission to allocate reserves based not on any pre-defined acreage but rather on the particular needs of the First Nation in question. The Dominion and provincial governments agreed to Duncan's plan and appointed A.C. Anderson and Archibald McKinlay respectively to represent each government on the Joint Indian Reserve Commission. A third commissioner, Gilbert Sproat, was appointed jointly by the two governments (Fisher, 1977: 183). In his instructions to McKinlay, the Deputy Provincial Secretary, Charles Good, speaks of the "...anxious desire of local government to deal justly and reasonably with them [the Indians], and to see them raised both morally and physically until they are in a position to enjoy all the privileges and advantages belonging to their white brethren" (Memorandum of Instructions to Archibald McKinlay, 1876). While this statement suggests that provincial motivations for endorsing the Commission were located within a liberal discourse of equality (no matter that this was an extremely ethnocentric conception of equality),9 Good, later in his instructions, betrays just how limited this notion of equality was. He stresses to McKinlay that every indulgence should be shown in creating the reserves—so long as these concessions are "compatible with the welfare and advancement of the rest of the community". Moreover, Good tells McKinlay to avoid apportioning any "...unnecessarily large reserves such as would interfere with the progress of white settlement" (Memorandum of Instructions to Archibald McKinlay, 1876). Thus, the discourse of equality that prefaced these instructions is exposed as 44 contradictory, if not a sham. In effect, Good asks McKinlay to act in the best interests of both First Nations and Euro-Canadians, a feat that could not realistically be accomplished if the Commission truly accepted the best interests of First Nations to be those presented by the Indians themselves - namely, the return of their lands. Indeed, colonial justice proceeded to address the land question by making First Nations a peripheral participant in policy discussions, ignoring Aboriginal understandings and interpretations of their 'needs'. This said, commissioner Sproat did demonstrate some respect for the Indian peoples he spoke with during the Joint Indian Reserve Commission hearings. He remarks after his meeting with the Mission band of the Burrard Inlet that they appear " . . .a vigorous, intelligent race, capable of considerable improvement if they are judiciously encouraged in the efforts they seem willing to make to overcome many of their old habits" (B.C. Provincial Secretary, Records Relating to Indian Affairs, 1876-1878). His is more the liberal perspective described by Cairns (2000) as representing, in that historical period, an antidote to the harsher racism possessed by Trutch and others who viewed Aboriginal peoples as inherently inferior. In fact, Sproat went further in his liberalism than many of his contemporaries, contending that the province had committed a great injustice against its First Nations and that more needed to be done to understand Aboriginal ways of life before reserves were simply imposed on Aboriginal peoples. Neither of the non-Aboriginal governments were prepared to engage in the sort of mutual understanding recommended by Sproat. If their views were liberal at all, they reflected a type of liberalism that Samson (1999: 5) describes as a "magical, yet ethnocidal, tool of colonization and land appropriation". Liberalism, according to Samson, achieves these ends by abstracting from the historical reality of the other and by refusing to engage in meaningful discourse with the 45 other, instead motioning toward a general equality that denies the worldview and previous existence of the other.10 Thus, despite some of the progressive beliefs of Sproat, the justice sought through the Commission's hearings was one that tended toward the pre-defined justice standards of European universalism. The meetings to determine the reserve size took the form of Chiefs and band members presenting their needs to enlightened commissioners who translated these needs into terms understandable to European sensibilities, and who decided whether, in the end, First Nations requests were meritorious or not. In this sense, the justice pursued through the Commission is what might be described as "monological" rather than "dialogical"; that is, justice was to be administered and meted out to First Nations by virtue of a singular Eurocentric cultural rationality rather than constructed in concert by the differing parties. The Joint Indian Reserve Commission was short-lived. The provincial government lobbied vigorously for its dissolution because there was little public support for the commission and many inland settlers felt that the Commission was too generous with regard to the land it distributed to the Indians. By 1878, the Commission no longer existed as a three member body. In its place, Sproat continued on as the lone commissioner (Fisher, 1977; UBCIC, 1998). In 1880, Trutch's brother-in-law, Peter O'Reilly, replaced Sproat, who resigned under great pressure from both the provincial and federal governments. d) The McKenna-McBride Royal Commission By the mid to late 1880s, colonial interests had eclipsed those of First Nations in the minds of both Dominion and provincial government representatives. In B.C., Trutch and O'Reilly together worked toward eliminating the Indian land question. By 1884, a resolution 4 6 was passed in the Canadian legislature recommending that Indian reserves be rearranged so that unused agricultural and resource-rich lands could be pre-empted by Euro-Canadians (Fisher, 1977: 200). Then in 1886, the Trans-Canada railway was completed and included land from First Nations reserves that were taken without compensation. In general, the hopes of First Nations with regard to having their title recognized appeared to be lost. Optimism regarding First Nation land claims was renewed, however, when in 1910 Prime Minister Wilfred Laurier toured British Columbia. During his travels he was approached by many First Nations delegations who complained about the manner in which their land claims had been addressed. Laurier became concerned about this discontent amongst B.C.'s First Nations, and the Dominion began once again to place pressure on B.C. to allot larger reserves. This debate raged anew until Laurier was defeated by Robert Borden and Borden's conservative government appointed J.A.J McKenna as the Special Commissioner of Indian Affairs. By September of 1912, McKenna reached an agreement with Premier McBride of B.C. on a procedure to settle the conflict between the Dominion and the province. This agreement called for the formation of a five member commission to address the 'reserve' situation in B.C. However, no mention was made of Aboriginal title or treaties; in effect, the issues of prime importance to First Nations were disregarded (Tennant, 1990: 88-89). Thus began the Royal Commission on Indian Affairs for the Province of British Columbia, which became known as the McKenna-McBride Commission. Its role was to assess the reserves laid out by the Indian Reserve Commission, to allot new reserves where deemed necessary, to add to existing reserves where land was insufficient, and to reduce or cut-off land from reserves if it was felt a First Nation had more land than it could use (Coates, 1998; UBCIC, 47 1997). The agreement that launched the McKenna-McBride Commission also stated that any change made would require the permission of the First Nation affected (Tennant, 1990: 88) Over three years, from 1913 to 1915, the McKenna-McBride Commission held hearings with First Nations in B.C. In the lower mainland, the bands in the region welcomed the commissioners. Although some were clearly anxious that the Commission might take land away from their already small reserves, they were, at the same time, pleased to finally receive an opportunity to discuss with government officials their grievances with regard to the expropriation of their lands. For example, on April 28, 1914 Chief Harry Joe of the Tsawwassen First Nation told the Commission: ".. .Indeed I have a grievance—I have been speaking to the men appointed to look after our interests in British Columbia but all of our words seem to go unheard; therefore I shall repeat the same words that I have spoken in former days. ...I am going to speak to you gentlemen and to tell you that we have been in this place from time immemorial and I am going to explain to you gentlemen how our ancestors were created in this place right over at the high land there known as 'Scale Up' or English B lu f f (Royal Commission on Indian Affairs for the Province of British Columbia, 1913-16). In response, the commissioners deftly side-stepped the moral argument concerning the Tsawwassen's rightful ownership of the land granted to them by the Creator and shifted the focus of the 'hearing' toward gathering the bureaucratic data on which the commissioners would base their recommendations. This data included issues of population size, reserve land used for farming purposes, stock owned by Tsawwassen members, and other information the commission felt necessary to determine the band's 'needs'. When Tsawwassen representatives pressed the issue of title, the commissioners questioned them on why they were interested in possessing title and inquired whether they intended to sell some of their land. However, after showing this brief interest in the Tsawwassen desire to possess title to their lands, the Commission concluded, as it 48 often did, by telling the Chief and band members that they would take the grievances they heard that day back to Victoria for further consideration. The text of the McKenna-McBride hearings with the First Nations of British Columbia reveals that the Commission represented less a dialogical conversation between First Nations and government representatives directed toward resolving the land question, and more a fact gathering mission through which information deemed relevant for assessing First Nation's needs was obtained to be considered later. During the hearings, when First Nations expressed their needs as they saw them, they were met with paternalistic admonitions about how the world is changing (see Tennant, 1990: 97) or vague promises that the First Nation's concern would be presented to officials in Victoria. The latter was the case when Chief George of the Inlailawatash Sqaumish Indian Reserve stated to the Commission that he wanted clear title to the land on his reserve and presented the problem his reserve was having in getting permission to sell timber they had cut on their land. The Chairman responded with a statement typical of McKenna-McBride commissioners: "A l l we can do, if we think anybody has been unfair to the Indians, is to make recommendations to the Government in the hope that our recommendations will be carried out" (Royal Commission on Indian Affairs for the Province of British Columbia, 1913-1916). In this manner, First Nations only received the semblance of being heard by the commissioners in the manner that Chief Harry Joe of the Tsawwassen had hoped. They could raise concerns, but there was no way for them to be certain that these concerns would actually be addressed. No system of accountability was in place to ensure that the Commission would give adequate consideration to all concerns. Moreover, the First Nations received little opportunity to convince the governments of the justice of their demands, or to even broach the issue of title in a 49 meaningful fashion. Instead, they were required to put their faith in the McKenna-McBride Final Report. This report was made public in June of 1916. Although the report recommended that 87,291 acres be added to reserves and that 47,058 be cut, many First Nations were displeased with these changes since the land added was valued at only $5.10 per acre in contrast to the $26.52 per acre price tag on the land that was cut (Tennant, 1990: 98). These recommendations, however, were not immediately implemented. Premier McBride retired in 1915 and his replacement, H. C. Brewster, was unfamiliar with Indian concerns in the province and, therefore, felt no urgency to put the recommendations into effect. Brewster died in 1918, but the Dominion and provincial government continued to disagree on the implementation of the McKenna-McBride Final Report. To resolve this impasse it was decided that a two-person review should be made of the information collected by the McKenna- McBride Commission. W.E. Ditchburn was appointed by the Dominion, and J.W. Clark was appointed by the province to carry out this review. Between 1920 and 1923 they examined all of the McKenna-McBride transcripts and Final Report, and, in the end, accepted the report's recommendations. In sum, during the early stages of British Columbia's colonial existence various strategies were implemented to try to obtain more certain access to valuable lands and resources for European settlers and the emerging resource industries. However, First Nations never simply accepted these paternal policies, and government officials were forced to devise new ways to try to legitimate the expropriation of First Nations lands. To counteract First Nation discontent, the governments sought to concoct new strategies geared toward controlling and reshaping Aboriginal identities. 50 2.3 Regulating Certainty: From Control to the Manufacture of Consent The government land policies and commissions on which the expropriation of Aboriginal territory was legitimated cannot be separated from other colonial policies directed toward regulating Aboriginal people in B.C. In addition to land policies that denied the societal status of First Nations and their occupation of the lands on which they based their livelihood, policies were developed that effectively denied the humanity and devalued the culture of Aboriginal peoples. In particular, the administrative control of Aboriginal persons through the Indian Act served to destroy traditional structures of Aboriginal governance, deny Aboriginal peoples the right to mount effective political action (especially with regard to land claims), and prevent economic development within Aboriginal communities. At the same time, assimilative policies were put in place that portrayed Aboriginal lifeworlds as savage and profane. This assault on Aboriginal identity took the form of residential schools which sought to teach the 'savage' out of the Indian, rewarded those who renounced their Indian identity, and cultivated a broad disrespect for the customs and practices of Aboriginal cultures. The effects of such administrative and assimilative control on the Aboriginal psyche has been discussed elsewhere (Adams, 1995; Duran, 1995, Fanon, 1963), but it is worth noting that these actions remain a great source of bitterness in the collective memory of the First Nations of B.C., and, combined with the anger over the long denial of Aboriginal title, produce a sense of injustice in the modern Aboriginal consciousness that cannot be easily placated. 51 a) Administrative Control The first act of controlling a population is to define them. From the time of Columbus's 'discovery' of North America and his mis-identification of the peoples he encountered as 'Indians', Europeans, and later, North Americans, have engaged in a project of imagining, naming, and characterizing the Indigenous peoples of the 'new world' (Stevenson, 1992). In British Columbia, the racial classification 'Indian' preceded the activities of the colonial government and served as an already established basis for creating targeted policy to manage this imagined grouping. Early colonial and provincial policy directed at Indians centred upon removing First Nations from lands viewed as desirable for resource exploitation and settlement (Coates, 1998b; Knight, 1996). In this vein, the Land Ordinance Act of 1860 acknowledged Indian villages and the lands they had cultivated, but did not recognize their hunting and fishing grounds, thus opening these lands to pre-emption. Initially, Indians were permitted to pre-empt this land; however, this aspect of the Act changed in 1865 with the passing of An Ordinance for Regulating the Acquisition of Land in B.C. With this later ordinance, Aboriginal persons were only permitted to pre-empt land with the special permission of the Lieutenant Governor— permission that was rarely granted (Knight, 1996; UBCIC, 1998). After confederation, Indian 'affairs' in the province became the responsibility of the Dominion government. In 1876, the Indian Act was passed and officially codified the definition of who was Indian and who was non-Indian (Manuel and Posluns, 1974: 22). This piece of legislation, despite its many revisions, is still in place and applies to Aboriginal persons in Canada today. Section 6 of the Act defines a person of "Indian status" as one who is registered as such in the federal registry and belongs to a group declared to be a band by the Governor in Council (Indian Act, R.S.C. 1985, Chap. 1-5, S. 6). Thus, through this legislative instrument the 52 government of Canada identifies a population to regulate. Perhaps even more telling of this regulatory naming is the fact that, until the 1951 revisions of the Indian Act, a legal person in Canadian Law was defined as an "individual other than an Indian". Alluded to in this definition of Indian status is the fact that the Indian Act empowers the Canadian government to define Aboriginal communities according to their own perceptions, rather than in accordance with Tribal or other self-selected criteria. However, the creation of bands actually preceded the Indian Act, as the Canadian government's 1871 Annual Report created the 'band council' system of political control to replace traditional forms of Aboriginal governance which were perceived to be irresponsible (Dyck, 1991). For the most part, the non- Aboriginal governments used local Aboriginal communities as the basis for forming band councils, although there were also instances where communities were merged (Tennant, 1990: 9). These councils were charged with attending to matters of public health, maintaining order and decorum at assemblies, preventing the trespass of cattle, caring for roads, bridges, fences and public buildings such as schoolhouses, and establishing pounds and supplying pound keepers (La Violette, 1961: 32-33). In effect, this severe limitation of the powers of Aboriginal governments transferred much of the control over daily affairs to Indian Agents working on behalf of the Canadian government. The Indian Act regulates the lives of First Nations individuals and communities in their near entirety (Calliou & Voyageur 1998; Culhane, 1997). The Act restricts the commercial usage of much of a First Nation's property; for example, in the case of land which is open to commercial development, the Canadian Governor in Council holds the power to determine whether or not the monies gained from this development are being used in the best interests of the First Nation's members (Mathias, 1986). Indian persons can step out of the provisions of this 53 Act by surrendering their special status, but this would also mean stepping away from the basic protection of Indian rights and lands provided by the Act (Manuel and Posluns, 1974). Thus, Aboriginal persons are in a "Catch-22" situation with regard to the Act and their lands: they could only protect their land by remaining under the powers of a piece of legislation that restricted their ability to use these lands. Two of the most infamous provisions of the Indian Act are the 1884 ban on the Potlatch and the 1927 prohibition of Aboriginal groups organizing in pursuit of land claims. With regard to the former, prior to 1884, missionaries in B.C. had fought against the "heathenism" of the Potlatch. In European eyes, this ritualistic redistribution of goods was perceived to be horribly wasteful and was associated with a number of other vices such as drunkenness and prostitution. Indian Agents also became involved in discouraging the Potlatch, which they saw as a barrier to Indian progress and civilization. However, both of these parties were powerless to stop a practice that was kept alive by Aboriginal traditionalists and encouraged by traders who saw an opportunity to profit by selling the goods to be given away during the Potlatch. In the words of La Violette (1961:37): "The potlatch was more than immoral; it had come to be defined as the grossest of obstacles to the Christian development of the Indians. Opinions, which were also explanations and conclusions, emerged to the effect that if European ideas of progress were to be imposed upon the aboriginals, then much more forceful action would have to be taken. A profound problem of morality had become defined as significant to Indian administration as well as to churches. Legislation had come to be considered the only means for solving the moral problem of the religionists and the administrative difficulties of Indian officials." On April 19, 1884, the Indian Act was amended. Potlatching was prohibited in Section 3, and those found guilty of participating in a potlatch, or of encouraging others to take part, were to be 54 sentenced to two to six months in jail. This amendment would remain in place for nearly 70 years (until 1951) imposing a European morality on First Nations persons. The prospect of a sudden cessation of potlatches alarmed many in Aboriginal communities. They feared that debts would not be repaid and honour would be lost.11 The architects of the potlatch ban had failed to consider the complexity of this Indian social institution; what they perceived to be an excessive waste was in fact a method of investing in the future whereby gift-giving today could ensure one of receiving gifts tomorrow. Moreover, the potlatch, according to Manuel and Posluns (1974: 49) is a "...system of kinship, of the inter- relatedness of all people present, that is being celebrated." For these reasons, the potlatch proved to be more persistent than officials had expected. Government agents lacked the resources to properly enforce the ban, and could do nothing more than turn a blind eye to the continuation of the potlatch. As well, Aboriginal groups found ways to hide potlatching activity from the gaze of government agents, such as by holding these events in hard-to-reach places (Cole and Chaikin, 1990). The potlatch ban went virtually unenforced for almost 30 years. But, in 1914, Indian Agents began to make a concerted effort to put a stop to illegal potlatching. It was felt, at this time, that potlatches were becoming increasingly competitive and were part of the reason why Indians were perceived to have made so little 'progress' since contact. With Indian Agent William Halliday leading the charge amongst the Kwakiutl on Vancouver Island, arrests began to be a more frequent occurrence (La Violette, 1961). In actuality, many First Nations experienced little disruption to their potlatching practices; however, this is not to say that the symbolism of the potlatching law did not have a general effect. The ban on the potlatch designated an entire way of life "intolerable to the Christian Conscience" (Manuel and Posluns, 55 1974: 46). In this sense, it not only disrupted important cultural practices that had implications for Aboriginal governance and wealth distribution; it also constructed a vision of Aboriginal cultural inferiority. In 1927, The Indian Act was further amended to prohibit Aboriginal peoples from hiring legal council to pursue their rights and title. In Section 141 of the revised Indian Act it was stated: 141. Every person who, without the consent of the Superintendent General expressed in writing, receives, obtains, solicits, or requests from an Indian any payment or contribution of promise of any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indians to which such Indian belongs, or of which he is a member, has or is represented to have for the recovery of any claim or money for the benefit of the said tribe or band, shall be guilty of an offence and liable upon summary conviction for each such offence to a penalty not exceeding two hundred and not less than fifty dollars or to imprisonment for any term not exceeding two months (quoted in Mathias, 1986). This amendment made it impossible for organizations such as the Allied Indian Tribes of B.C. and the Nisga'a Land Committee, both of whom were mobilizing around the land claims issue at the time, to continue on in their activities (Tennant, 1990: 112). Thus, the government had found a new and effective way to silence the Indians and to avoid hearing that which they did not want to hear. b) Control through Assimilation Since the 'advantages' available to Indians for renouncing their Indian status were insufficient to transform the Aboriginal individual into a model Canadian citizen, the answer to the 'savagery' of traditional Aboriginal life was thought to be education. Around 1876, government officials singled out education as "the primary vehicle in the civilization and 56 advancement of the Indian Race" (Canadian Department of the Interior, quoted in Redford, 1979-80: 41). Catholic schools12 were already present in many regions of the province, and their number and enrollment increased in the 1880s when the Department of Indian Affairs assumed part of their operating costs (Knight, 1996). These schools got hold of the Indian children when they were young, and therefore, it was believed that they would have better success in 'civilizing the Indian'. However, up until the early 1890s, most of the schools were day schools, which meant that after the school day and during holidays Indian children would return to their families and communities and be exposed to all of the customs that their schoolmasters were attempting to have them leave behind (Redford, 1979-80). In 1895, residential schools housed 1300 pupils, approximately one third of Indian children of school age (Knight, 1996: 101). At these schools, Indian children were beaten for speaking their own languages, dancing, and for acting in any way deemed inappropriate for proper 'civilized' children. Meanwhile, some of the authority figures who were meant to be icons of 'civilization' were not above sexually and mentally abusing a number of the children. By 1920, attendance at the schools was made mandatory for children under the age of 14, exposing an even broader array of Aboriginal children to these institutions (Knight, 1996: 101). As well, the day schools were transformed into boarding schools, meaning Aboriginal children were removed from their families for nine to ten months of the year, denying an entire generation of Aboriginal children familiarity with their traditional practices. Often hardest for these children was the experience of coming home to their communities and being received as strangers, as 'white', yet feeling no identification with their tormentors at the schools (Haig- Brown, 1988). 57 Residential schools continued to be used into the 1960s. Their impact on First Nations peoples across Canada has been drastic and various processes are in place to try to rectify this historic wrong and to begin a 'healing process' for those Aboriginal persons who experienced suffering at the hands of these schools.13 This injustice is not unrelated to the injustices associated with the denial of Aboriginal title because the schools exacted a toll on First Nations communities, leaving many disconnected from their cultures and traditions, and therefore distanced from a strong sense of their Aboriginal rights. Indeed, it is not uncommon in the modern context of treaty-making for the First Nations involved to raise issues about the legacy of residential schools as a grave historic wrong from which their communities still need time to heal. c) Seeking Consent By 1938 there are signs that government officials began to question the logic of trying to police First Nations communities through the prohibition of activities. Individuals within government circles argued that trying to prevent potlatching was costly and ineffective and that Indians would be better directed through "wise council" and other less prohibitive policies (La Violette, 1961: 94). These discussions eventually manifested in the 1951 amendments to the Indian Act, when the bans on the potlatch and on hiring legal council for land claims were removed. Sanders (1995) suggests that the effort of Indian fighters during World War II may have been part of the reason why these changes were made, as Indians had the highest enlistment rate of any group in the country. This factor, as well as the eye-opening realization about the danger of race-based policies brought forward by the German atrocities against the Jews and other minorities, quite likely played a role. However, it should also be recognized that these 58 policy shifts coincided with a post-World War II transformation in the logic of governance. The hegemony of liberal democracy had become solidified to the point where it no longer seemed as necessary to rule by force; instead, more effective political control could be wrought through winning the consent of the subjugated. In this atmosphere, policies designed to prohibit activities seemed anachronistic and ineffective. The greatest challenge faced by this triumphant liberalism in the Canadian context was the Indian Act itself. This restrictive document seemed to fix Indians in a particular social status, as 'wards' of the state rather than as willing participants in the liberal capitalist enterprise. In a move that would prove disastrous, Indian Affairs Minister Jean Chretien of Pierre Trudeau's Liberal government, released in 1969 the "Statement of the Government of Canada on Indian Policy" which came to be known as the "white paper". This policy document was an attempt by the federal government to repeal the Indian Act, transfer Indian services to the provinces, transform reserve lands into fee simple property, and redefine Aboriginal persons as Canadian citizens, equal to all others in the eyes of the law (Armitage, 1995). Although these changes appeared common sense to the liberal mindset, they were viewed as an assault on Aboriginal rights by First Nations across the country, particularly since the government completely disregarded the consultation process that had preceded the "white paper" and had acted unilaterally. This development motivated the formation of several large pan-First Nation organizations that had been in embryonic form until that point. These groups successfully convinced the Liberal government to reconsider its policies (see Chapter 3). Thus, the liberal attempt to transform its relations of rule from control to consent failed when Aboriginal peoples refused to exchange their rights for 'equality'. This forced the 59 government to devise new approaches to try to deal with the pressing Aboriginal issues in the country, in particular, the rising clamor over land claims in British Columbia. 2.4 Defining Certainty: From Liberal Universalism to Identity Politics The discourses of Aboriginal rights and title, as legal concepts, were marginalized until the early 1960s. The aforementioned policies of denial and control allowed the government to circumvent these challenges up to this point. For example, in the St. Catherine's Mil l ing and Lumber case (1885), which would be a precedent setting case for Canadian Aboriginal law for years to follow, First Nations concerns were not represented even though the case had great impact on the notion of Aboriginal legal title. Instead, the Federal government and the government of Ontario were viewed to be the parties in conflict because the former wished to lease a parcel of Ojibway land to a timber company. The Federal government argued that the land had been ceded by the Ojibway to Canada through Treaty Three, and therefore, it was not transferred to Ontario through the signing of the British North America Act (Culhane, 1997). The judicial Committee of the Privy Council disagreed, stating that in accordance with the doctrine of discovery the Ojibway did not possess 'ownership' of the land in a manner consistent with the European conception of the term. Furthermore, the Committee added ".. .that the tenure of the Indians was a personal and usufructary right, dependent upon the good will of the sovereign" (quoted in Indian Claims Commission Research Resource Centre, 1975). Thus, Aboriginal persons had little voice in determining the extent of their rights and title. However, after the Canadian government made a shift toward liberal strategies of winning consent, which were designed to enfranchise and co-opt Indians, a portal of opportunity was opened for Aboriginal groups to advance an alternative vision to that of assimilation. Indeed, as 60 Canada pursued greater inclusion of Aboriginal persons by providing them with voting and citizenship rights, as well as legal personhood, these tools were employed by Aboriginal movements to pursue recognition of their uniqueness. As Peter Kulchynski (1995: 60) has noted, the discourse of Aboriginal rights "marks a shift... in the universalist discourse of human rights toward culturally specific rights."14 Chapter 3 will explore in greater detail the mobilization of Aboriginal movements and their creation of a new frame of Aboriginal rights and title. In the present chapter, I will continue to concentrate on governmental strategies for dealing with the land question, which from the 1970s onward moved slowly away from the ideology of liberal universalism toward a limited identity politics directed toward the full definition of Aboriginal rights in order to secure 'certainty'. The first modern Aboriginal rights case was R. v. White and Bob (1963). In this case, two Indians were charged with violating provincial hunting laws. White and Bob argued that hunting and fishing rights were guaranteed in the Douglas treaties. Their claim was rejected in the B.C Supreme Court, but upheld upon appeal to the Supreme Court of Canada in 1965. The Supreme Court of Canada ruled on the basis of Section 87 of the Indian Act that the treaty did indeed provide hunting and fishing rights, therefore, affirming the pre-existence and continuation of Aboriginal rights (see Culhane, 1997: 84). This case was not as significant, however, as the Calder case in which the Nisga'a took the Government of British Columbia to court, arguing that Nisga'a title to their lands preceded British Sovereignty, that this title had never been extinguished, and that such title continued to exist as a legal right (Culhane, 1997: 78-82). In the B.C. Supreme Court, the argument put forward by the province was accepted by the majority of justices, who agreed that the Royal Proclamation did not apply to First Nations in B.C., that the actions of the Crown since contact 61 demonstrated that there was no legal recognition of the Nisga'a, and that, according to Mr. Justice Charles Tysoe, the Nisga'a were too primitive at the time of contact to have had proprietary rights (Calder v. The Attorney General of British Columbia, 1970). The Nisga'a appealed this decision to the Supreme Court of Canada, and in 1973 the court delivered a technical defeat to the Nisga'a case, but a moral victory for First Nations across Canada (Sanders, 1990). Here, the court justices divided evenly on the issue of whether or not Nisga'a title had been extinguished, some agreeing with the assessment of the B.C. Supreme Court, while others acknowledged a continuing Aboriginal interest in lands, arguing that this interest could only be extinguished through formal legislative enactment, and not merely through ignoring Aboriginal claims (Calder v. The Attorney General of British Columbia, 1973). However, the case was, in the end, dismissed because the Chief Justice with the deciding vote ruled against the Nisga'a on the basis of a technicality, claiming they had not followed the provincial Crown's Procedure Act, which required them first to obtain the permission of the provincial government prior to bringing an action against the provincial Crown (Tennant, 1990: 220). This ruling did, however, mark a major change in Canadian policy toward First Nations, and in the Supreme Court's attitudes toward land claims. In response to Calder, the Trudeau government saw a need to address Aboriginal land claims in a manner that provided some certainty to governments, protecting them from the increasing unpredictability of the Courts. Until this time, Trudeau had remained unconvinced of the need for 'special rights' (Sanders, 1995: 8), as his views were firmly entrenched in a liberal worldview. But, only six months after the decision in Calder, the federal government announced its plans to negotiate land claims across Canada. For First Nations without treaties, such as those in B.C., the federal government devised what is referred to as their "Comprehensive Claims" policy. 1 5 This policy, outlined in 62 the document In All Fairness (1981), recognizes that Aboriginal peoples possess inherent interests in their traditional lands and acknowledges that claims can be negotiated in areas where those interests had been left unsettled (Boldt and Long, 1985). As Trudeau (1985: 150) would himself later state, "[f]he treaty-making process and the land claims settlement process in which we are now engaged have the same goal: the transformation of uncertain, ill-defined aboriginal rights that have proved to be difficult to enforce into clearly stated, justiciable, written rights." The Comprehensive Claims policy began a trend toward a new regulatory ethos of governance with regard to Aboriginal persons, a stage in which the government of Canada returns to the historic policy of treaty-making, once again with the goal of obtaining consensual extinguishment of Aboriginal title from First Nations. It did not, however, fully embrace the conciliatory strategy described by Weaver (1990) as a "new paradigm" approach to relationships with First Nations. This "new paradigm" found its expression in government-sponsored, but largely ignored, reports such as the Penner Report and the Coolican Report, both of which stressed the need to create permanent, yet flexible, relationships with First Nations in which Aboriginal and non-Aboriginal governments work cooperatively with one another in a direct, honest and honourable fashion. In contrast, the Comprehensive Claims policy imposes a liberal universalism on First Nations, constructing negotiations as political rather than legal, and thereby continuing to deny the legal basis of Aboriginal claims. In doing so, it uses the language of 'extinguishment', requiring Aboriginal groups to 'cede, surrender, and release' their Aboriginal title in exchange for well-defined treaty rights and title, thus seeking finality rather than promoting an ongoing and flexible relationship. As well, this negotiation policy places several preconditions upon Aboriginals, such as requiring Aboriginal groups to accept the existing rights of non-Aboriginal Canadians, including permitting rights of access through settlement areas for 63 Canadian citizens, rights of way for government purposes, and ensuring rights of access for those possessing subsurface rights in the region (thus not acknowledging tribal nationhood) (Dacks, 1985:255). In contrast to the federal government, the province of B.C. was not ready for this brave new world of seeking consent. They remained firmly located in the politics of denial and determined to continue the legal battle against Aboriginal land claims in the province.1 6 The Social Credit government that held power in B.C. from 1975 until 1991 was resolute in fear mongering about the comprehensive claims process, which through the 1970s and 1980s produced agreements in Quebec, Inuvialut, and the Yukon. Ignoring the fact that in these treaties Aboriginal peoples ceded the majority of their traditional lands, members of this government argued that if such a process were to be instituted in B.C., First Nations would try to claim ownership to the entire province and would demand a sum of money well beyond any reasonable amount (Tennant, 1990). Vaughn Palmer of the Vancouver Sun has succinctly summarized the position of the Socred government on Aboriginal title during this period: "Its first position is that aboriginal title never existed. The second holds that if it ever existed, it was extinguished. Then government will argue that even if title still exists it has little meaning in terms of compensation... The next fallback is that even if the natives are entitled to substantial compensation, the federal government must provide it under the terms that brought B.C. into Confederation. And the fifth and final position, though seldom articulated, is that the public will never stand for the level of compensation expected by native leaders, and therefore little risk attaches to the effort to defeat the claim in court" (Palmer, quoted in Tennant, 1990: 232-233). Thus, the provincial government believed that the courts would eventually rule in B.C.'s favour and therefore elected not to join the federal government when the latter began negotiations with the Nisga'a in 1976. 64 The next major development in terms of Canadian Aboriginal policy came in the form of Section 35 of the 1982 Charter of Rights and Freedoms which was part of the Canadian Constitution Act. In this section, it is stated that the "...existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed". A further clarification adds that treaty rights in this section refer to already existing treaty rights, or those that may be acquired through land claims (Canadian Charter of Rights and Freedoms, 1982). This section was initially dropped from the draft constitution, with B.C. as one of the provinces pressing to have it removed; however, it was re-inserted in response to public pressure by native organisations (Slatterly, 1985: 116; Tennant, 1990: 225). While this legal recognition of Aboriginal rights set Canada apart from other settler societies that do not possess constitutional acknowledgement of Aboriginal rights, as Sanders (1990: 125) has argued, the "box" of rights defined by S. 35 is really an "empty box" since these rights were not legally defined. Indeed, these rights are qualified in the Charter as "existing" Aboriginal rights, a restriction specified at the suggestion of Premier Lougheed of Alberta and others to prevent the expansion of rights that had already been legally terminated (Sanders, 1990). Thus, while S. 35 is clear in its protection of Aboriginal rights, the question remains as to how these Aboriginal rights will be defined. In terms of Aboriginal title, one of the legal tests for determining whether or not Aboriginal title exists was set out in the case of Hamlet of Baker Lake et al. v. Minister of Indian Affairs and Northern Development (1980). Here, Justice Mahoney of the Supreme Court laid out a four part test for Aboriginal Title, which included the need to demonstrate that the Aboriginal groups claiming title were organised societies and made exclusive use of the territory prior to British Sovereignty (Culhane, 1997: 92-96). This test was further defined in the Bear Island Case, in which the Crown was claiming unencumbered title to 4000 square miles of territory in 65 Northern Ontario. Requirements were added specifying that Aboriginal groups arguing for title had to submit proof of the nature of rights possessed prior to the date that British Sovereignty was declared, alongside evidence that some form of land-holding system was in place from this period up until the first day of the court action. With such tests, the appearance of attending to Aboriginal rights was given, yet the bureaucratic complexity of pursuing these rights made them an arduous challenge. In the British Columbia context a number of cases advanced the land claims of First Nations in this province. In Guerin v. the Department of Indian Affairs and Northern Development (1984) the Musqueam First Nation brought the federal government to court for the mismanagement of surrendered reserve lands. In 1957, the Musqueam surrendered 162 acres of reserve land to the federal government on the assumption that the lands would be leased to a golf club on terms and conditions that had been agreed to by the band. Instead, the federal government leased the land on terms less favourable to the Musqueam, and later kept the documentation of the transaction from the Musqueam, delaying their ability to launch court action. The federal government argued in its defence that there could be no federal trust responsibility in this case because the property at issue belonged to the government and not to the First Nation, and that any trust that did exist was purely political and therefore could not be enforced in the higher courts (Sanders, 1995). This case became significant to the broader issue of Aboriginal title because Justice Dickson's ruling presented Aboriginal title as being based upon pre-existing occupation and control of the land, and not solely upon the pleasure of the Crown. In R. v. Sparrow (1990) the defendant was charged under the Fisheries Act with using a drift net larger than that permitted under Canadian law. The defendant responded that the right 66 to fish was an unextinguished Aboriginal right. Canada argued that the Aboriginal right to fish had been extinguished by the comprehensive system of regulations, permits and licenses instituted under the Fisheries Act; that is, that the creation of Canadian law had nullified the Aboriginal right to fish (Sanders, 1995: 16). The Supreme Court, however, rejected the idea that extinguishment could occur through the act of regulation and ruled that i f an Aboriginal right were to be extinguished it would have to be through "clear and plain" means whereby the Crown explicitly shows its intention to extinguish the Aboriginal right (R. v. Sparrow, 1990; Culhane, 1997: 28). At the time that the Sparrow decision was being handed down, one of the most important cases in Canadian Aboriginal law was being decided in the B.C. Supreme Court. In Delgamuukw v British Columbia (1989), the Gitskan and Wet'suwet'en originally had claimed ownership to portions of 58,000 square kilometres of land in B.C. In the course of the trial, the claim was changed into one for Aboriginal title over this area. British Columbia argued firstly that the Aboriginal groups had no legitimate claim to title over this region, and that i f they had any claim whatsoever, it was for compensation from the federal government (thus following the path of argument laid out by Palmer). The Gitskan and Wet'suwet'en position was rejected by Chief Justice McEachern based on his assessment that Aboriginal title existed at the "pleasure of the Crown" (see Culhane, 1997 for a thorough overview of this case). Also of import in this trial was the Chief Justice's dismissal of the oral evidence presented by the First Nation plaintiffs on the grounds that it was not a reliable source of historical information. The Gitskan and Wet'suwet'en appealed McEachern's decision to the Supreme Court. In the higher Court, Chief Justice Antonio Lamer ruled that McEachern had erred in rejecting the oral histories of the Gitskan and Wet'suwet'en and ordered that a re-trial should be held to take 67 this information into account. Lamer also went on to clarify the test for identifying Aboriginal title, specifying that Aboriginal title is a pre-existing right to the land based on occupancy, but which does not directly correspond to conceptions of ownership held in British common or French civil law. According to Lamer, to understand it correctly we need to view it from both an Aboriginal and a non-Aboriginal perspective. First, Lamer suggested that this title is inalienable and therefore only surrenderable to the Crown. Second, in contrast to positions that present Aboriginal title as something transferred to First Nations by the Royal Proclamation, Lamer argued that Aboriginal title arises from the prior occupation of Canada by Aboriginal peoples. Finally, Lamer identified Aboriginal title as a communally held right and therefore held collectively rather than individually. Based on these principles, the Delgamuukw ruling connects Aboriginal title to Aboriginal people's historic occupation of traditional lands, but also suggests that limits exist on the use of these lands (Slatterly, 2000). In doing so, the clarity provided by this court was minimal since the content of Aboriginal title remained undefined and further Court cases would be required to delineate this title. However, Lamer stressed negotiations as the best route available for attending to these complex and potentially divisive issues. In sum, recent court cases on Aboriginal rights and title have challenged the logic of liberal universalism, forcing it to find a way to admit the particularity of specific Aboriginal rights. This realization has come slowest to the province of British Columbia, which has tried in some of these court cases to continue to challenge the existence of Aboriginal title and to fend off Aboriginal land claims in general. This approach has at last proven itself bankrupt and has forced the province to join the federal government in the pursuit of treaties with the First Nations of British Columbia. 68 2.5 Conclusion In this brief historical overview, several trajectories of justice frame construction can be identified. In the early days of the colony, the need to protect the certainty of the fur trade gave way to a desire to administer a clear and orderly process of colonization. This move led to the development of justice frames employed by the non-Aboriginal governments to characterize their relationships with the Aboriginal peoples of B.C., which permitted them to manage Indian affairs with the goal of assimilating First Nations and preventing them from disrupting colonial intentions for the region. Initially, this paternal management consisted of strategies intended to control First Nations, which served to prevent broad challenges to Euro-Canadian moral hegemony in B.C. In this manner, bourgeois European visions of correctness were enforced and legitimated a certainty based primarily upon a denial of First Nations land claims. When procedures of justice were implemented to address First Nation complaints, these took a 'monological' form that imposed colonial visions of justice, rather than a 'dialogical' form that engaged in a mutual discourse with First Nations. Gradually, however, strategies of control were replaced by those of consent, yet with the protection of control always looming in the background. As First Nations became more organized and more vociferous in their claims, and seemed more resistant to leaving behind the 'Indian lifestyle', strategies of control became less effective and a drain on the resources of government. The first manoeuvre attempted by the non-Aboriginal governments was to seek consent by offering First Nations enfranchisement in the Western liberal project through the mechanism of the White Paper. When this assimilatory offer was resoundingly rejected, the non-Aboriginal governments began to seek consent by extending minor concessions to First 69 Nations through mechanisms such as the federal comprehensive claims policy. At the same time, however, both provincial and federal governments continued to present arguments in courts that denied Aboriginal claims to the land in B.C. This vision of justice would need to face the challenge of First Nation counter-visions before the land claims of First Nations in B.C. would be squarely addressed. In the next chapter, an examination is provided of the role played by First Nations in contesting the justice frames that legitimized the historical expropriation of First Nations' lands in B.C. and the assault on their cultures. It will be argued that the legal and protest activities undertaken by First Nations in British Columbia contributed to a heightened sense of 'uncertainty' within the province, forcing the governments of Canada and British Columbia to take First Nation justice claims more seriously. Endnotes 1 It is important to differentiate between the various groups of Europeans (e.g., traders, politicians, settlers, missionaries and explorers) who had contact with First Nations (Clayton, 2000). Each of these groups held distinctive visions of justice and had varying impacts on First Nations' communities. This chapter primarily focuses on the visions of justice imposed by the colonial governments of B.C. and Canada, which sought to control and assimilate First Nations in order to secure political stability and economic development. 2 The use of the term 'Indians' in this thesis is not intended in the same vein as the derogatory misrecognition placed upon the indigenous peoples of Western Hemisphere by colonizing peoples. 3 The charge of 'presentism' suggests that an author is judging the actions of a previous generation based upon today's moral standards. 4 See Chapter 1 for a quotation from the text of the Royal Proclamation. 5 Clayton (2000) reinforces that relations between First Nations and Europeans in this early period after contact were not entirely peaceful. As well, he notes that First Nations gained a capitalist spirit of competition from this early interaction 6 'Chief Factor' was the title bestowed on the head of HBC operations in a colony. The HBC initially hoped to present the colony as being more than just a fur-trading post by placing Blanshard in the position of Governor. However, the colony was still largely organized around the fur trade, despite its recent decline, therefore, Douglas was the individual who clearly held most sway with regard to the colony's affairs. Douglas continued to carry out the dual roles of chief factor and governor until 1859, when he was offered the position as governor of New Caledonia on the condition that he resign as chief factor (Fisher, 1977). 7 The treaty signed between the Songhees of Vancouver Island and Douglas has recently become a subject of controversy. The Songhees have launched a case in the B.C. Supreme Court, arguing that the land currently occupied by the B.C. Parliament building was in fact designated as treaty land by the Douglas Treaty. The Songhees contend that this land was arbitrarily taken from them and that they should be compensated for their loss (Lunman, 2001). 70 Lenihan was soon discharged from this position due to his inadequacies, and Powell became the sole Indian superintendent. 9 Menno Boldt (1993) refers to this form of 'equality' as an attempt to destroy Indians as Indians. 1 0 The literature of 'postcolonialism' emphasizes the exclusionary character of liberal colonial policies. See, for example, Said (1979). 1 1 The connection between gift-giving and debts is clarified in Mauss's (1967) discussion of the moral economy of the 'gift' which carries with it an obligation of later repayment. 1 2 A number of Protestant-based schools were also introduced later. 1 3 Processes include civil lawsuits against the churches that ran the schools, demands for apologies from the government, such as the one delivered to the Nuu-chah-nulth on December 9, 2000 by the Canadian government, and even a proposed South African' Truth Commission' -like process that would allow Aboriginal persons to express their suffering and have it publicly acknowledged. 1 4 It will be argued later in this dissertation that scholars such as Kulchynski (1995) and Weaver (1985) tend to overemphasize the struggle for Aboriginal rights as an instance of identity politics that is completely absent of any notion of 'sameness'. This ignores the extent to which the demand for recognition of Aboriginal title, an element of Aboriginal rights, contains a notion of resource redistribution which would create conditions under which First Nations would have the opportunity to pursue economic equality. In this sense, Aboriginal politics might be better considered as 'bivalent' (Fraser, 1997), attending simultaneously to goals of'sameness' and 'difference'. 1 5 The Comprehensive Claims procedure is a multi-staged procedure, similar to that employed in the BCTC Process. In the first stage, the First Nation presents a statement of its claim and DIAND determines on the basis of this claim whether it accepts the claim as negotiable. Therefore, power in this process is firmly located in the hands of the federal government, which has the power to determine the merit of the claim prior to any negotiation. In the second stage, if the claim is accepted, the First Nation researches its land claim, acquiring further evidence to serve as a basis for negotiations. Then, the parties begin to negotiate. If negotiations are successful, this brings the parties to a third stage, Agreement in Principle (AIP) negotiations. These negotiations flesh out the specifics of the treaty and, once agreed to, ends in legislation (Dacks, 1985: 255). 1 6 In some ways, the B.C. government feels it has more at stake in the treaty negotiations, fearing the loss of revenues of lands signed over to the First Nations. 71 CHAPTER 3: FIRST NATIONS JUSTICE FRAMES Thus far, my analysis of justice frames in B.C. has focused primarily on those frames employed by the governments of British Columbia and Canada to disregard or dismiss the land claims forwarded by First Nations. In the past 20 years, these settler justice frames have increasingly come under attack in political discourse, in the courts, and in the media. In opposition, First Nation justice frames have been mobilized by Aboriginal social movements to forward the cause of land claims. This chapter will outline the emergence and development of the First Nations land claims movement in British Columbia, identifying both the political and discursive openings that have created a space for First Nations persons to counter non- Aboriginal justice frames and the forms First Nation justice frames have taken. I argue that First Nation justice frames should not be regarded solely as an expression of identity politics (or a politics of recognition); instead, these frames most often combine concerns with protecting and revitalizing First Nations cultures with demands for material equality. 3.1 The Land Claims Movement as a Social Movement In this section, a distinction will be drawn between the First Nations 'movement' and First Nations social movement organizations (SMOs). Moreover, a particular subsection of First Nations SMOs—the First Nation band or tribe-based bodies directed with pursuing a particular land claim—will be highlighted as key actors in the land claims struggle. The terminology used here is borrowed from both Resource Mobilization Theory (RMT) and the New Social Movements (NSM) literature; however, this analysis should not be interpreted as an unqualified application of either approach. Instead, my objective is to conceptualize 'social movements' in a 72 manner that is amenable to both of these approaches since neither, by itself, is adequate for understanding the First Nations movement. Resource mobilization theory arose in response to the limitations of the 'collective behavior' perspective, which until the 1970s dominated the American literature on social movements. According to Turner and Killian (1987), the main exponents of the collective behavior approach, informal group activity often emerges in situations where norms are poorly defined, leaving those within the group to navigate this confused normative terrain. Given this normative uncertainty, individual behavior is less rigidly defined than it would be in a more organized, formal group setting. However, 'social movements' often arise in such circumstances to provide individuals with direction and to attempt a reconfiguration of the normative order. The heightened social movement activity of the 1960s soon demonstrated the insufficiencies of the collective behavior approach. First and foremost, the 'psychologism' of the collective behavior understanding of social movement formation suggested that movements were 'irrational' and poorly planned affairs that emerged in response to conditions that lay beyond participants' collective understanding (Donati, 1992; Gamson, 1990). In contrast, resource mobilization theorists sought to portray social movements as rationally motivated collective action directed toward defined goals (McCarthy and Zald, 1973; Zald and McCarthy, 1987). Proponents of RMT argue that social movements do not simply arise in response to a particular grievance or social uncertainty since these two factors are ubiquitous in any societal period; instead, they suggest that social movements develop when the resources necessary for mobilization (e.g. human, economic, and political resources) become available (Tilly, 1978). While RMT has made a valuable contribution to the social movements literature by demonstrating the importance of the more mundane requirements of collective action, its focus 73 on the instrumental rationality of collective actors (Scott, 1990:118) is inappropriate in the context of this study on two counts. First, although rational calculations are obviously made by First Nations actors about whether or not to participate in the First Nations movement, in a movement that touches on a number of emotionally-charged and symbolic issues it is unlikely that constituents are attracted to this cause solely by virtue of a measured cost-benefits analysis. Second, some would argue that the 'instrumental rationality' RMT identifies is a European precept. First Nations groups often claim adherence to a rationality contrary to this 'Western' rationality which dominates Canadian society. Boldt (1993:176-7) describes this other rationality as a traditional cultural philosophy that stresses concerns with mutuality, community, and equality rather than the 'selective incentives' usually seen to characterize movement participation. While it would be naive to assume all First Nations actors participate on the basis of such a traditional cultural philosophy, it is important not to close off the possibility that alternate rationalities may exist to motivate First Nations collective actors. RMT has also been criticized for focusing on the 'how' rather than the 'why' of social movements (Melucci, 1989); that is, for ignoring the reasons why actors construct and attach themselves to a collective identity in favor of questions about resource acquisition. In contrast, N S M theorists do not take the existence of the collective identity of a movement for granted and instead seek to explain how the movement constructs itself symbolically (see Cohen, 1985; Eyerman and Jamison; 1991); that is, in the words of Melucci (1996: 16), to understand " a 'we' can become a we". The modern breed of social movement is said to operate in an environment where issues of group specificity and identity politics are of primary importance. As Habermas (1981) states, for NSMs "...the question is how to defend or reinstate endangered 74 life styles, or how to put reformed life styles into practice. In short, the new conflicts are not sparked by problems of distribution, but concern the grammar offorms of lifer The application of the term 'new social movement' to First Nations collective actors who have carried out their struggle for centuries would amount to a misidentification, however, since this terminology erases First Nations collective action that has been present from the time that Europeans arrived in North America. Furthermore, the tendency amongst N S M theorists to minimize the political aspects of social movements by locating the activities of these movements primarily in the sphere of 'civil society' (Scott, 1990:16-7) is problematic when addressing the First Nations movement. Although there is a strong desire for cultural revitalization that motivates different First Nations collectivities, this is a desire that can only be met by directly challenging the Canadian state, by achieving a redistribution of resources, and by amassing political power in order to determine their futures.1 Given the problems with both RMT and N S M approaches as applied to First Nations movements, I will attempt to arrive at a definition of the First Nations movement by borrowing ideas from both approaches. a) Defining the First Nations Movement First Nations collectivities often engage in activities that would lead to them being defined as part of a 'social movement'—that is, they mobilize their supporters in order to effect social change or, in some cases, to prevent social change. However, there are some difficulties in applying this label to First Nations groups and organizations. Although it has become somewhat commonplace to speak of a First Nations 'movement' or even of an "international indigenous movement" (see Barsh, 1991), there have been few attempts to clarify the use of this 75 terminology. First and foremost, it is necessary to clarify what is meant by the term 'social movement'. Often this term is used to refer to specific organizations such as Greenpeace or the Sierra Club (Marx and McAdam, 1994:2); however, this becomes confusing when the same label is also applied to a broad array of groups that have formed around a particular issue or set of issues, such as the environmental movement. This same confusion exists in the study of First Nations collectivities where one may use the term 'movement' to refer to both specific organizations such as the Union of British Columbia Indian Chiefs (UBCIC) and as a general label under which all First Nations groups can be placed. To avoid this conceptual confusion the term 'social movement' is not used here to refer to individual organizations. Instead, it refers to a broader, structural organizing principle under which any number of groups may be placed (Diani, 1992:14). In this sense, a social movement is a network of informal interactions between a plurality of individuals, groups and/or organizations, engaged in political or cultural conflict on the basis of a shared collective identity (Diani, 1992:13). Thus, a 'movement' is constituted by various individual and collective actors who engage in activities that are cultural and/or political. Collective identity can be understood here as an "interactive and shared definition produced by several interacting individuals who are concerned with the orientations of their actions as well as the field of opportunities and constraints in which their action takes place" (Melucci, 1989: 34). The production of a collective identity is a continuing process, often marked by conflict amongst actors within the social movement, through which a group must actively construct and reproduce itself as a collectivity. Diani (1992:8-9) adds that external definitions play a role in the construction of collective identity. Johnston et a/.(1994:18) use the term "public identity" to refer to the influence public 76 perceptions of and attitudes about a particular group have on the group's self-definition and on the options that are made available to resolve a particular grievance. The 'public definition' of First Nations movements is particularly relevant to the land claims conflict in B.C., where the state and other groups have sought to minimize First Nations' claims to nationhood and, instead, represent them as either ethnic groups or communities (see Chapter 5). Given that the formation of collective identity is a process, to speak of a First Nations "movement" we must not assume that a primordial homogeneity exists amongst the First peoples of this continent, or even in the province of B.C. Instead, we must look at how their collective identity is constructed by referencing a common history. Even the most stable of groups needs to engage in a process of self-definition and redefinition. In the case of First Nations groups in British Columbia, their existence as 'nations' prior to 1849 was no guarantee of the maintenance of this identity. Gradually the nationhood of various First Nations peoples was challenged by the colonial government and they found themselves isolated on small reserves, separated from their larger nations and from 'mainstream' society (see Fisher, 1977:49-72 or McKee, 1996:11-9 for a description of this process). In turn, the eventual attempts to redefine themselves as 'nations' has led to the construction of a broader collective identity based not only on the histories of particular cultural units, but on shared 'pan-Indian' experiences as First Nations peoples. Thus, although these were originally "culturally diverse" (McKee, 1996:3) groups, I concur with Long (1997:151) that it is not surprising that there are similarities between different First Nations groups given their common historical experiences. Furthermore, the First Nations movement operates to highlight these similarities and construct a 'pan-Indian' identity that can serve as a basis for a common conception of selfhood. As Boldt (quoted in Frideres, 1988:272) writes of the First Nations movement in Canada, 77 [fjhis pan-Indian concept and the emergent political and cultural movement with which it is associated is serving to identify new boundaries and to create new over-arching Indian loyalties at the national level. It is a movement to enhance a sense of commonality and group consciousness which goes beyond mere political organizations to include recognition of a shared history of oppression, cultural attitudes, common interests, and hopes for the future. In this sense, the First Nations movement provides what may be referred to as a "collective action frame" (Snow et al. 1986; Snow and Benford, 1988, 1992) since it calls attention to certain injustices, assigns responsibility for these injustices to certain parties, and unites a variety of experiences under a particular theme or "frame". However, the collective action frame does not serve to homogenize the ideas and orientations of the various collective actors comprising the movement. Rather, a wide variety of preferences exist within a particular "frame", and this can lead to conflict amongst various SMOs. Therefore, the process of collective identity formation requires constant negotiation amongst the plurality of movement actors (Diani, 1992:9) In sum, we can understand the multitude of First Nations groups positioning themselves on the issue of land claims as part of a social movement—be they bands, lobby groups, or other First Nations associations—since there is a shared collective identity that has been formed and which allows members of these various groups to understand themselves as part of a larger collectivity. A particular group of actors acting in concert over a sustained period of time may more appropriately be termed a Social Movement Organization (SMO). That is, it can be understood as "a complex, or formal, organization which identifies its goals with the preferences of a social movement or a countermovement and attempts to implement those goals" (McCarthy and Zald, 1977:1218). Therefore, such a group falls under the aegis of the larger movement that "frames" the issues and preferences with which the SMO identifies. 78 b) First Nations SMOs1 Within the broader First Nations 'movement' there exists an array of First Nations SMOs concerned with both general and specific First Nations grievances. Aside from the bands and tribal groupings directly involved in relationships with the Federal and Provincial governments, there are many other First Nations SMOs active in voicing their concerns. Such groups include: national lobby organizations, such as the Assembly of First Nations, which are bureaucratic in their organizational structure and represent a diversity of cultural groups; 'Red Power' (or radical) organizations, such as the Union of British Columbia Indian Chiefs and the Native Youth Movement, who are most concerned that First Nations cultural groups be viewed as nations and are accorded the rights of nations; multi-ethnic organizations, which are temporary coalitions of bands and/or groups which link together to advance a common grievance or to resolve a perceived problem; and finally, local organizations, such as the First Nations Summit and organizations for urban First Nations persons (e.g., the United Native Nations), First Nations women (e.g., the Native Women's Association of Canada), or groups dealing directly with First Nations health issues (e.g., Healing Our Spirit), that have formed around and are focussed on specific grievances (Frideres, 1988:270-5). A l l of the groups listed above are involved either directly or indirectly in the land claims struggle. First Nations SMOs frame their justice visions with respect to the larger movement. These preferences can be roughly identified as fitting one of four ideal-typical categories. First, groups that aim for political independence from, and nation-state status in relation to, the Canadian government hold "nationalistic preferences". Second, "autonomous preferences" are expressed by groups also seeking to establish an independent Aboriginal state, but within 79 Canadian political structures rather than outside of them. Third, "departmentalist preferences" are shown by groups who wish to retain the existing structures of Aboriginal administration, but with more input from Aboriginal groups. Finally, "integrationist preferences" are exhibited by groups who desire the full and equal assimilation of First Nations peoples into Canadian society. The rest of this chapter will be devoted to examining the different justice frames presented by various First Nation SMOs in B.C. which eventually culminated in the establishment of the B.C. Treaty Process. 3.2 The Emergent Movement: Colonization and Social Change4 Following Turner and Killian (1987), Marx and McAdam (1994) argue that social movements typically emerge in response to broader societal changes. One could hardly imagine a more dramatic social change than the arrival of a new people who impose an entirely different way of life. Although First Nations initially adapted to the spread of the fur trade and incorporated this activity into their traditional practices, the colonization of B.C. placed First Nations peoples in direct competition with Europeans over the lands on which First Nations cultural practices were based. Moreover, First Nations increasingly found themselves and their cultures socially derided as 'savage', 'uncivilized', and 'heathen'. In response to these public imaginings of Indians and Indian society, many First Nations sought to counteract this portrayal and to combat its effects - the legitimized theft of First Nations lands. At times, they rose up to contest the expropriation of their lands; however, the brutal reprisals organized by the early Colonial government demonstrated the futility of any single First Nation or Tribal grouping attempting to use physical force to displace settlers from traditional lands or to chase off surveyors. As well, geographical isolation and linguistic differences prevented First Nations 80 from banding together in a multi-nation body to respond to aggressive settlement. This left First Nations with few options for reacting to colonial encroachment on their traditional lands. Given these circumstances, the primary avenues of protest in the early days of colonization were through the band councils established by the settler society and through the missionaries who had placed themselves within First Nation societies in attempts to bring 'religion' to the Indians. In this sense, although there existed an implicit pan-Indian justice frame - since nearly all saw the increased settler encroachment on Indian land as an injustice - this vision was only articulated in a fragmentary form. As Melucci (1994) reminds us, grievances may remain submerged in the everyday lives of groups before they are articulated; therefore, one should not assume that there exists no common grievance simply because no movement has formed to articulate it. Moreover, implicit resistances employed at the local level to combat perceived injustices often demarcate a submerged justice frame. For example, an implicit resistance in the history of B.C. First Nations, and First Nations across Canada, was their general refusal to accept the offer of the Enfranchisement Act (1869) which encouraged them to exchange their Indian status for the rights of citizenship. Similarly, First Nations practiced implicit resistance to assimilation by continuing to speak their Aboriginal languages and by carrying out potlatches, despite the legal and religious prohibitions against doing so (Kulchynski, 1995). Although these implicit resistances helped preserve a sense of injustice that eventually animated a broader justice frame, they were, at this early stage of movement development, largely defensive in character and therefore carried little political force. A First Nation social movement and justice frame began to emerge more coherently in the late 1800s/early 1900s . Prior to 1909, the year when two pan-Indian movements formed in B.C., protest actions were typically organized by a single band or tribal group and were directed 81 locally toward Indian agents, although occasionally petitions were made or delegations were sent to higher-ranking officials in Victoria, Ottawa, or London. For example, one of the most influential multi-party petitions was sent to Indian Commissioner Powell in 1874 by the Chiefs from First Nations on and around the Bute Inlet. In this petition they stated: "For many years we have been complaining of the land left us being too small. We have laid our complaints before the government officials near to us. They sent some others; so we had no redress up to the present; and we have felt like men trampled on, and are commencing to believe that the aim of the white men is to exterminate us as soon as they can, although we have been always quiet, obedient, kind and friendly to the whites" (quoted in LaViolette, 1961: 115-116). The Chiefs also pointed out in this letter that they required 80 acres per family - the amount typically allotted by the federal government - in order to survive. As well, they attempted to counter the settler caricature of Indians as being "lazy and roaming-about people", citing their dedication to societal improvements and to starting the path toward "civilization". However, the petition does not formulate First Nations' grievances in the terms that would later come to define protests - title, treaties, and self-government - nor do they locate their complaints in the broader discourse of Aboriginal rights. These notions were all present in embryonic form, and were touched upon in many First Nation statements, but they had not as yet achieved the currency they soon would. A more thorough historical analysis would be needed than that provided here to trace the genealogy of the First Nations use of such terms as Aboriginal rights and title; however, it is evident that in the 1880s, First Nations began to develop a clearer set of demands that centred upon the issues of title, treaty, and self-government that were ignored in the 1874 petition. Slowly a discourse was emerging with which First Nation grievances could be framed in a manner comprehensible to non-Aboriginal governments - even if these governments made only 82 symbolic gestures toward addressing these issues.5 For example, the Nisga'a and Tsimshian of the Northwest Coast were two of the most active groups in the emerging land claims movement. Together both groups sent a delegation to Victoria in 1887 who told Premier Smithe, "[w]e want you to cut out a bigger reserve for us, and what we want after that is a treaty" (quoted in Raunet, 1996: 95). Furthermore, the delegation was clear about their ownership of traditional lands, although they did not state this precisely as a claim to title. To gain any measure of success in their actions, First Nations were from early on required to translate their traditional sense of ownership and possession into terms understandable to white officials, and to make their presentations in a manner that, in the minds of white officials, appeared 'civilized'. The political and legal rationality of European civilization had become universalized on the basis of white hegemony in this region, leaving any alternative rationality particularized beyond communication. As Bourdieu (1998: 45) states, "[cjulture is unifying: the state contributes to the unification of the cultural market by unifying all codes, linguistic and juridical, and by effecting a homogenization of all forms of communication...". In this manner, the framing tools available to the emerging land claims movement were prescribed by the dominant European culture, and carried the threat of an initial totalization, imposing European forms of rationality on First Nations seeking the return of their traditional lands. This said, totalization is never complete, and even within the restrictive discourses of European legality, First Nations in B.C. were able to devise resistive frames that served to turn European discourses of justification upon themselves and point out their contradictions. In 1909, the First Nations movement started to take a more organized shape. The Nisga'a had already formed the Nisga'a Land Committee to pursue their land claims, and they 83 encouraged other Coastal First Nations in B.C. to meet with them in Victoria in December of 1909 to discuss their common cause. Through their discussions, the Coastal First Nations agreed to form the Indian Rights Association. Similarly, the Interior Salish tribes had met in the summer of 1909 and had created the Interior Tribes of British Columbia to address their grievances. Unfortunately, neither of these pan-Indian bodies had the resources or the organizational structure to allow them to present a serious challenge to government views on the land claims issue. They would hold assemblies to develop policy statements and to approve delegations to be sent to meet with non-Aboriginal government representatives, but they were unable to achieve much in terms of concrete successes. In all fairness, these bodies were developing their agendas during a period when anti-land claims policies were firmly entrenched and government officials such as Joseph Trutch were adamant in imposing colonial justice. Nevertheless, in contrast to these pan-Indian bodies and their growing pains, the Nisga'a Land Committee continued to make minor gains. In 1913, the Nisga'a Land Committee sent a petition to authorities in London, stating outright the issues of title, treaty, and self-governance. Furthermore, in their letter they pointed to the 1763 Royal Proclamation issued by King George, a document that was to become of fundamental importance to First Nations in B.C. since it would offer a legal loophole through which they could pursue their land claims. 3.3 Seeking Political and Discursive Openings It is not enough for an emerging movement to construct a collective identity for potential constituents or to begin fashioning an interpretive frame for directing the actions of these constituents, there is also a need for political opportunities for collective action to arise (Tarrow, 1994; Tilly, 1978) and for ample resources to be available to make sustained action possible 84 (Garrison, 1990; Jenkins, 1993). As well, a discursive opening that provides a new political "nodal point" around which a movement can articulate its justice frame is needed (Laclau and Mouffe, 1984; see also Eyerman and Jamison, 1991). Thus, although the nascent land claims movement was beginning to establish itself in a rudimentary way, the channels available to the movement were limited and the predominant discourses of title, treaties, and self-government were yet to resonate with the larger Aboriginal and non-Aboriginal population. The Nisga'a petition signaled an important shift in the justice framing of the land claims issue employed by First Nations in B.C. Up until this time, few First Nations in the province were aware of the Royal Proclamation and fewer still were using it as a basis to pursue their Aboriginal title. As Tennant (1990: 90) states, "[k]nowledge of the proclamation gave a powerful boost to pan-Indian sentiments. Each Indian could see his or her tribal group as one of the 'nations or tribes' recognized and promised justice by the proclamation but denied it by the actions of provincial officials." The Nisga'a, through their petition to London, fully expected that the Privy Council would right this historic wrong once they became aware of the Dominion's oversight. Around the time of the Nisga'a petition, the McKenna-McBride Royal Commission was beginning to hold hearings with First Nations across B.C. The Nisga'a sought assurance from government authorities that their appearance before the commission would not be interpreted as a discontinuation of their claim to ownership of their lands. Many other First Nations impressed upon the commission their feelings that the issue of Aboriginal title was of foremost importance to them. This includes many of the First Nations of the lower mainland, such as the Tsleil Waututh, Musqueam, Squamish, and Tsawwassen, all of whom told the commissioners that they desired title to their lands. The McKenna-McBride Commission, however, was not prepared to 85 deal with this issue and steered First Nations representatives away from discussing these issues and instead toward providing demographic information about the band (see Chapter 2). Dissatisfaction with the Commission's reluctance to tackle issues such as Aboriginal title resulted in a renewed interest in pan-Indian organizing in B.C., as First Nation leaders were pessimistic that the Commission's report would address their concerns. This dissatisfaction found its voice in two individuals, Andrew Paull and Peter Kelly. Paull was a member of the Squamish Nation and had served as an interpreter for the Mckenna-McBride Commission. One can only suppose that this position exposed him to a broad array of First Nation grievances and made him sensitive to the general issues confronting First Nations in B.C. as a whole. Kelly was a Haida and was an ordained Minister (initially with the Methodist Church, but later with the United Church). In 1916, these two men organized a conference at Paull's Squamish reserve which was attended by leaders from 16 tribal groupings, with representatives from all geographical areas of the province. The end product of this meeting was the formation of the Allied Tribes of British Columbia (hereinafter 'All ied Tribes'), a province-wide political organization designated with the task of forwarding land claims. Within days of the formation of the Allied Tribes, the McKenna-McBride Commission released its final report. First Nations in B.C. were angered by the recommendations put forward by the commissioners. Fortunately for them, these recommendations were not immediately implemented due to the retirement of Premier McBride, and the unfamiliarity of his replacement, H.C. Brewster, with Indian matters. Brewster died in 1918 and John Oliver became premier. Oliver took an interest in settling issues regarding Indian reserves with the federal government and looked toward implementing the recommendations of the commission's report. He decided in 1919 to consult the First Nations of the province with regard to their feelings about the report, 86 since the mandate for the Commission had provided First Nations with veto power over any land cut-offs. This was not a popular decision with his federal counterpart, Superintendent of Indian Affairs Duncan Campbell Scott, who felt that the Indians should not have a say in the implementation of the Commission's report. The group Oliver selected to hold his consultation with was the recently formed Allied Tribes. To formulate a response to the McKenna-McBride report, the Allied Tribes held a general meeting at Spences Bridge in June of 1919. Until this point, the leaders of the Allied Tribes, Paull and Kelly, had been busy lobbying against the proposed cut-offs, but the larger Allied Tribes body had undertaken few projects in concert. However, given this opportunity to present their views, the Allied Tribes responded by organizing consultations with First Nations across the province. By December of 1919 they had assembled this information in a 6000 word report that made a strong claim to Aboriginal title and rejected the final McKenna-McBride report on the basis that it ignored the issue of Aboriginal title. This political opening was short-lived, however, as the Federal government chose to deal with these complaints by rescinding the veto power it had promised the Indians. Indeed, the federal government was becoming increasingly frustrated that those amongst the Indians who had received a western education often chose to apply this education toward the pursuit of land claims. The federal government's assimilationist policies had clearly failed, as these new Indian leaders refused to trade in their Indian identity for the rights of British subjects. In reaction, the federal government stepped up its efforts to repress First Nations cultures. In 1920, they passed Bi l l 14 which allowed the government to enfranchise any Indian person, with or without his or her consent. They also strengthened the laws requiring Indian children to attend residential schools and became more persistent in their efforts to enforce the potlatch ban (Tennant, 1990). 87 During this period, the Allied Tribes were prevented from accessing information necessary to the pursuit of land claims, such as the Papers Connected with the Indian Land Question, 1850-1875, which contained evidence of Douglas's acknowledgement of Aboriginal title, and of Trutch's efforts to counter this acknowledgement (Tennant, 1990). Furthermore, the Allied Tribes lacked sufficient economic resources to carry out their objectives (LaViolette, 1961). In effect, their ability to force a discursive opening to allow for the broad articulation of their grievances had been closed by the lack of a complementary political opening which would provide them channels through which they could pursue their land claims. For this reason, the Allied Tribes began to crumble from internal dissension in 1922. A slight improvement in this situation developed when Mackenzie King's Liberals replaced the Conservatives in Ottawa. Bi l l 14 was repealed soon after the change in government, and in 1923 new hope was brought to Coastal First Nations when Indians were given the right to possess commercial ocean fishing licenses, which provided them with an opportunity to raise much needed funds for organizations like the Allied Tribes. But in 1924, the McKenna-McBride cut-offs were implemented, forcing the Allied Tribes to change their strategy. They elected to pursue their case for land claims with the Privy Council in London. When they pressed vigorously for permission from the government of Canada to bring their case to the Privy Council, 6 the federal government decided that it would be preferable to establish a special joint committee to attend to land claims issues in B.C. rather than allowing these matters to be brought to the Privy Council. In 1927, this newly formed committee heard from both the representatives of the Allied Tribes and two leaders representing the tribes from B.C.'s interior. Paul, Kelly and Arthur O'Meara spoke on behalf of the Allied Tribes, laying out for the committee the principles of the Royal Proclamation and stressing the 88 need for treaties and compensation for lost lands. In this sense, they appealed to European legal rationality as they pointed to the contradictions apparent in British/Canadian policy. Kelly summed up this challenge nicely: "Why not keep unblemished the record of British fair dealing with native races? Why refuse to recognize the claim of certain tribes of Indians in one corner of the British Dominion, when it has been accorded to others of the same Dominion?" (quoted in Tennant, 1990: 106) The representatives from the tribes of the interior, in contrast, appealed more directly to traditional arguments, providing the committee with oral-history recountings of the promises they had received from the Queen.7 However, neither approach was successful in moving the committee to address First Nation grievances. The committee rejected the arguments of the First Nations representatives, claiming that title had been extinguished by the exertion of sovereignty by the British Crown, that the activities of the Hudson Bay Company constituted a form of conquest, that there were contradictions between the claims made by First Nations from the Coast and those of the Interior (demonstrating that there was no unified position on these matters), that white agitators such as O'Meara were responsible for leading the Indians astray and building their hopes, and that the Indians were not deserving of serious consideration since they had declined the conditions offered to them in the 1914 order-in-council and yet still persisted in wasting government time with these "irrelevant issues" (Tennant, 1990: 109). The committee concluded the proceedings by making two recommendations: 1) that an annual allotment be made to B.C. First Nations since they do not receive treaty payments, and 2) that land claim agitation should be prevented by prohibiting Indians from paying lawyers or other agents to pursue land claims without government approval. Both recommendations were implemented, with the latter making the organization of land claims impossible. Thus, another 89 brief opening of political opportunity was again abruptly closed, and the Allied Tribes were forced to discontinue their activities. With the banning of land claims in 1927, the Nisga'a Land Committee became the only active First Nations organization in the province. However, in 1931 the Native Brotherhood of B.C. formed to reinvigorate the ideals of the Allied Tribes, except without explicitly using the language of land claims. Both organizations were quiescent throughout the 1930s as the depression, in combination with the land claims prohibition (which was part of what Joe Mathias [1982] describes as a "conspiracy of legislation"), made all but the smallest efforts difficult. The 1940s, in contrast, provided more opportunity for First Nations to pressure the government with regard to their grievances. With the onset of World War Two, First Nations individuals enlisted at a rate surpassing that of any other group in Canada. Furthermore, as the horrors of Nazi policy toward the Jews became more widely known, a more critical gaze was cast internationally upon race-based policies that limited the rights of certain groups within national borders. Finally, Keynsian welfare policies began to filter more state funds toward economically marginalized groups in western societies, and these funds created new opportunities for financing political action (Hirsch, 1988). At this pivotal juncture, significant political and discursive openings revitalized the heretofore-frustrated land claims movement. 3.4 Master Frames and Land Claims In 1951, the federal government repealed both its ban on the potlatch and its restrictions on land claims organizing. The fact that in 1949 the Privy Council in London had ceased to be the highest court in Canada, made this decision seem more politically palatable to the federal 90 government since they felt there would be less uncertainty faced if Indians brought their land claims before Canadian courts. But at this stage, so soon after the harnessing of the emergent land claims movement, the First Nations were not yet ready to bring their land claims to court. Before this could happen, they had to face the difficult project of re-establishing their collective identity and developing a new collective action frame to correspond to recent political changes. In the mid to late 1950s, Native leaders began to reappear on the scene to continue the pursuit of the goals of the Allied Tribes. One such leader was George Manuel, who hailed from the interior of the province, but dedicated himself to promoting coastal-interior co-operation amongst First Nations in B.C. Manuel was a tireless organizer who was known to hitchhike his way around the province to consult with and mobilize various First Nations groups. In 1959, Manuel represented his fledgling group, the Aboriginal Rights Committee, at a convention of the Native Brotherhood, which was under the leadership of Peter Kelly. Also present at this meeting was Frank Calder, who was becoming a prominent figure in B.C. land claims politics as the leader of the Nisga'a Land Committee. Calder and Manuel both saw this convention as an opportunity to forge province-wide unity amongst First Nations in B.C. with regard to land claims, but they were opposed by Peter Kelly, who seemed uninterested in leading the Native Brotherhood in a renewed quest for land claims (Tennant, 1990). Disappointment with the results of this convention led Calder and Manuel to focus their energies elsewhere: Calder and the Nisga'a stepped away from seriously dedicating themselves to province-wide coalitions and concentrated instead on their own independent land claim, while Manuel formed a new political organization based amongst the interior First Nations which he called the North American Indian Brotherhood. As Tennant (1990) has documented, the land claims social movement was once again divided along traditional lines with coastal and interior 91 First Nations finding it difficult to coordinate their activities. However, events in the 1960s would eventually lead them to recognize their common ideational goals. In 1960, status Indians were given the right to vote in federal elections, making them one of the last minority groups in the democratic world to receive enfranchisement (Kulchynski, 1995). This belated inclusion of Aboriginal persons brought some hope to First Nations groups in B.C. that their land claims would soon be addressed. Indeed, in 1963 the newly elected Liberals, led by Lester Pearson, promised that they would form a land claims commission to address First Nation grievances. They followed through on this promise in 1965 when Bi l l C- 123 established the Indian Claims Commission and provided funding to Aboriginal groups to aid them in preparing and presenting their claims. However, many First Nations in British Columbia did not like the idea of negotiating with an appointed government body and instead wanted negotiations to take place directly with the government. This proposition was put forth by the Confederation of the Native Indians Of British Columbia (CNIBC), a newly formed body that did not intend to replace any of the already existing bodies, such as the Native Brotherhood, but instead hoped to better coordinate their activities. The Indian Affairs Minister, Arthur Laing, said he would accept this provision if the CNIBC could clearly demonstrate that it represented 75% of status Indians in B.C. The assumption made by both parties in this arrangement was that the negotiations would cover the entirety of the province in contrast to the nation-by-nation negotiations that are currently taking place through the B.C. Treaty Process. However, given that the membership of the CNIBC was predominantly made up of Salish from Vancouver Island, the mainland coast and the interior, it was difficult for them to establish that they in fact did represent a clear majority of First Nations in the province. 92 In the following years, Frank Calder would also attempt to promote unity amongst First Nations in the province by trying to form a new organization, the Indian Land Claims Committee. But Calder's efforts faced resistance from the CNIBC, who were more and more behaving like an independent, rather than a coordinating body, and who felt Calder and his associates were acting in too unilateral a fashion. Infighting and schisms such as these are not uncommon in situations where a broad movement is forming across several interest groups. While the First Nations of B.C. shared many common interests, these interests had not yet been articulated in a resonant justice frame (Carroll and Ratner, 1996a) that could articulate a common interpretive schema for the First Nations of B.C. and that would allow them to act in a coordinated fashion without impinging on their cultural and political distinctiveness.8 Indeed, infighting of this nature is often part of the "meaning-work" (Snow and Benford, 1992: 136) that is involved in the struggle to produce and maintain new meanings contrary to those professed by dominant societal institutions. What was required was a broader grammar of protest that could punctuate the seriousness of First Nations grievances in a manner that would resonate with both potential Aboriginal constituents and non- Aboriginal policy-makers; however, a discursive opening as such, through which the justice frame of Aboriginal title could be advanced, was not yet available. Indeed, rather than address the First Nation demand for the consideration of their group rights, the Canadian government tabled the 'White Paper' in 1969, which attempted to impose the individual rights of Canadian citizens upon Aboriginal persons. This policy decision, taken by the Pierre Trudeau Liberal government, seemed so contrary to statements made by First Nations leaders in the consultations prior to the release of the document, it immediately galvanized Aboriginal persons in B.C. and across the country. Most saw this policy as 93 equivalent to a form of cultural assimilationism intended to destroy the Indian way of life. Thus, forced into a defensive position, First Nation groups saw little option but to band together in c pursuit of their common cause. After the release of the White Paper, Dennis Alphonse, the Chief of the Cowichan band, proposed a province-wide conference. While not all of the major First Nations organizations in B.C. responded to Alphonse's suggestion - groups such as the Native Brotherhood, the Nisga'a and Nuu-chah-nuulth did not reply - the Southern Vancouver Island Tribal Federation, the Indian Homemakers, and the North American Indian Brotherhood immediately took up his idea and managed to secure provincial and federal funding to hold a conference in Kamloops from November 17 to 22. The Chiefs of individual bands within the province also responded and sent representatives to the conference. In what would prove to be the most broadly attended assembly of First Nations in the history of the province to this point, the First Nation representatives made speeches about the need for unity in pursuing their Aboriginal rights to the land. As Tennant (1990: 153) summarizes, "...the speakers believed that the white paper's promise of equality meant simply the denial of aboriginal rights and the right to legislative protection." The reinvigorated First Nations movement took organizational form in British Columbia when the conference concluded with the establishment of the Union of British Columbia Indian Chiefs, which was chaired by Don Moses, although its structure was designed so that decision- making would be the collective endeavor of the Chiefs rather than the prerogative of a single leader. After the chiefs had decided on a particular resolution it would be the role of the Chiefs' Council, a group of Chiefs representative of the various regions of the province, to direct the Executive Committee to carry it out. In this sense, an institutional structure was developed to try 94 to overcome the infighting that usually resulted when a single leader was in charge of decision- making. Furthermore, the new organization became more adept at finding government sources of funding to maintain the activities of the UBCIC, a problem that plagued previous attempts to unite First Nations in B.C. On a broader level, however, the UBCIC was emerging at a point of intense social movement activity. Decolonization movements in other parts of the world had spread the discourse of the injustice of colonialism and its impact on indigenous peoples (Barkan, 2000). In the U.S., the civil rights movement had made advances for African Americans, and throughout the western world, women, gays and lesbians, ethnic minorities, and other 'identity' groups were mobilizing in pursuit of their 'rights'. But these rights were not necessarily the same as the individual rights offered to Aboriginal people in Canada through the white paper. Instead, they often reflected what Barkan (2000: 161) terms the "neo-Enlightenment," which refers to "...the universalization of the Enlightenment tradition of individual rights and its expansion to include group rights, as well as to the tension created by the frequent collision of each of these categories. ... [I]n their efforts to survive in the modern world, indigenous peoples have turned to advocacy of Enlightenment principles as both a political agenda and a strategy." In essence, a new master frame was becoming available to the land claims movement in British Columbia through which the First Nations of the province could articulate their demands for Aboriginal title in a manner comprehensible to the broader liberal society. 3.5 The First Nations Tactical Repertoire: Legal and Direct Action Alongside the pan-Indian mobilization in response to the white paper, the Nisga'a launched a landmark legal case to pursue their land claims. As mentioned in Chapter 2, although the decision in Calder v. R. (1973) did not technically favour the Nisga'a, the reasons for 95 judgement given by the Supreme Court Justices did recognize that Aboriginal title is not something granted by the Crown but rather pre-exists European settlement. This amounted to a symbolic victory for First Nations involved in the land claims struggle in B.C., and it further solidified the coalescence of First Nations groups around the justice frames of Aboriginal rights and title. Following Calder and the white paper, and throughout the 1970s, First Nations in B.C. carried out a heightened level of political organization and activity, inspired by the success gained through both legal and direct action. First Nations also continued their traditional protest activities of lobbying and petitioning the federal and provincial governments, but there is little doubt that their major successes were the result of battles fought in the courts or through collective action. Indeed, they even began to influence Prime Minister Trudeau to back away from his staunch individualistic and universalistic conception of equality, moving him to consider the importance of group rights (an accomplishment all the more surprising given Trudeau's virulent opposition to the protest activity of Quebec separatists). The increase in legal challenges and direct action on the part of B.C. First Nations can be in part attributed to the funding that became available at this time. The provincial First Citizen's Fund and the Federal Department of the Secretary of State, Department of Indian Affairs, and the Canadian Mortgage and Housing Corporation supplied B.C. First Nations social movement organizations such as the UBCIC and the B.C. Association of Non-Status Indians with core funds (Tennant, 1990).9 In this sense, we see in the 1970s a convergence of factors contributing to the greater visibility and potency of the land claims movement in B.C. These include: a greater availability of resources for and an improvement in communication networks amongst B.C. First Nations; the solidification of Aboriginal rights and title as justice frames for 96 articulating a pan-Indian collective identity; political and discursive openings that permitted these justice frames to reach beyond the movement's Aboriginal constituency; and, a resonant master frame of group rights that emanated from the burgeoning social movement activity of identity groups in liberal-democratic nations. With these factors in place, the 1970s and 1980s would prove to be a time of major accomplishments for First Nations both across Canada and in B.C. specifically. At the national level, First Nations received an important form of recognition when existing Aboriginal and treaty rights were affirmed and recognized in the 1982 Constitution Act. With this development, the justice frame of Aboriginal rights received broader legitimacy than it had previously enjoyed, even if the Constitution was silent on the nature of these rights. With this acknowledgement in hand, First Nations could now present their land claims as congruent with the foundational codification of the rights and liberties of citizens of the Canadian state. Moreover, the Constitution Act required that a series of four First Minister's Conferences be held to discuss the issue of Aboriginal rights. In the first of these meetings, First Nations organizations in B.C. made the argument that Aboriginal title is a crucial element of their Aboriginal rights and should also be entrenched within the Constitution. However, they did not succeed in convincing the federal government on this point, in part, because the government of B.C. opposed this notion. The Federal government also initiated its comprehensive claims policy to address outstanding land claims in Canada. According to Trudeau, the Calder decision was one of the factors that influenced him to direct his government toward this policy. However, the comprehensive claims policy requires a First Nation to invest an exorbitant amount of time and money since the policy obliges them to perform extensive research to justify their claim. Furthermore, as the Nisga'a soon discovered after their land claims negotiations began in 1976, 97 there was only so far that a First Nation in B.C. could go in negotiations with the federal government so long as the province continued to refuse to recognize Aboriginal title. In maintaining its traditional attitude toward land claims, the provincial government - the body responsible for Crown lands in B.C. - refused to be a party to any land claims negotiations, making it difficult for First Nations to negotiate for a treaty land settlement. Thus, instead of participating in negotiations, the provincial government selected to battle with First Nations in the courts and on the highways and roads of the province. This said, the land claims movement in B.C. did achieve one minor success in its struggles with the provincial government. In 1981, the Social Credit government agreed that lands cut-off by the McKenna-McBride Royal Commission should either be returned to First Nation reserves if undeveloped, or that First Nations should be compensated monetarily if these lands had since been developed. Although this change in policy righted a longstanding injustice, it failed to satiate First Nations' desires to have their land claims settled. The reluctance of the provincial government to address the land claims issue was interpreted on the part of First Nations organizations as a willful denial of both history and Canadian law, and these organizations were motivated to direct their protest and legal challenges directly at Victoria. One protest tactic, the blockade, which had, since the 1970s, been part of the First Nation protest repertoire in B.C., was perfected during this period. Whereas previous blockades were directed at disrupting the everyday activities of white citizens, the modern leadership employed the blockade as a tool of economic disruption. Now the activities of resource-based industries and railway and highway developers were the primary targets. In particular, forest companies were singled out for blockades since this industry was so crucial to the economy of B.C. and frequently required access through reserves and to nearby logging roads to get to timber stands 98 deep within First Nation traditional territories (see Blomley, 1996). In addition to hurting the provincial economy through the interruption of forest activity and creating an uncertain business environment, these blockades also found for First Nations a new ally in the growing environmental movement, which often acted as an advocate for First Nations stewardship over traditional lands. In the courts, cases such as Sparrow and Delgamuukw (see Chapter 2) pressed forward the legal claim to Aboriginal title. In the Supreme Court of Canada, both Sparrow and Delgamuukw, like Calder before them, signaled a shift in the attitude of the Chief Justices toward the legal status of Aboriginal title. The argument that explicit or implicit extinguishment had occurred, or that Aboriginal title was provided to First Nations at the 'pleasure of the Crown,' began to lose its force. Thus, with the economic effects of blockades hampering the B.C. economy, with Court judgements increasingly unfavourable, and with public opinion shifting increasingly toward support for government being responsive to the claims of First Nations, the provincial government had little option but to move away from its refusal to negotiate. The key word for the provincial government in making this transition became 'certainty' - the desire to negotiate clear and final arrangements with First Nations to put an end once and for all to the court battles and civil unrest in B.C. In Chapter 7,1 will argue that this shift in thinking about Aboriginal title was not just a result of these pragmatic pressures, but was also enabled by a change in the logic of governance (from a liberal to a neo-liberal approach) which permitted the provincial government to adapt to these pressures and to enter into land claims negotiations. For now, I would like to focus on how the efforts of the land claims movement contributed to the formation of the B.C. Claims Task Force. 99 3.6 Movement Success? The Formation of the B.C. Claims Task Force Alan Scott (1990) argues that movement success can be measured by the extent to which the collective actor is incorporated into the system from which it has heretofore been excluded. In other words, movement success means no longer needing to exist as a movement, but rather becoming an integrated member of the political system. In these terms, the activism of the land claims movement of the 1970s and 1980s achieved a modicum of success when the B.C. and Canadian governments agreed to form the B.C. Claims Task Force, and agreed to the subsequent recommendations of this task force, which served as the basis for the B.C. Treaty Process (see Chapter 4 for a description of the formation of the B.C. Treaty Process and the BCTC). In the aftermath of the 1983 First Ministers' Conference, the First Nations of British Columbia formed the Aboriginal Peoples Constitutional Conference (APCC). This body continued to meet regularly, even after the First Ministers' Conferences failed to address the issue of Aboriginal title in a manner satisfactory to First Nations in B.C. However, Joe Mathias and other members of the A P C C felt that a new coordinating body was needed to carry the land claims struggle further. It was proposed that a 'parliament' of sorts be developed that would be comprised of representatives from First Nations throughout the province. At the 1988 meeting of the A P C C this proposal was put into effect; however, the name of the body under which the First Nations were to gather was changed to the First Nations Congress (FNC) to denote the equality of all of the nations comprising this group. One of the most important actions undertaken by the FNC was the organization of two conferences in 1989 at which First Nations met privately with representatives from B.C.'s largest resource industries. At these meetings, First Nation leaders, such as Bi l l Wilson, impressed upon 100 the business representatives that land claims negotiations were imperative, and, in the end, many business people came to agree with this view and advised the province that negotiations should begin as soon as possible so that certainty could be achieved. This, in fact, was the same message that the courts had been giving to the provincial government, warning them that political negotiations rather than litigated rights were the most promising means for dealing with the land question. At last, the Social Credit government relented and Premier Bi l l Vander Zalm established a native affairs advisory council. The Premier and the council together toured the province, visiting the major tribal groupings to consult with them on the land claims issue. These meetings energized the Premier with the idea that the land claims issue could be resolved. Now motivated to bring about changes, the Premier agreed to meet with Prime Minister Mulroney and the FNC later in 1989 to discuss the establishment of a treaty process. At these meetings, the three parties agreed to form a task force comprised of representatives from the province, Canada and the FNC that would be charged with devising a treaty-making process. This was the beginning of the B.C. Claims Task Force and a step toward fulfillment of the promise that First Nations would at last be included in deciding the fate of the land claims question. 3.7 Conclusion As the treaty process began to unfold, several First Nations refused to participate or later withdrew, upset with some of the compromises that were made by First Nations leaders to get the process underway. In particular, nations under the aegis of the UBCIC felt that the province should not be part of the negotiations since it was the federal government that had responsibility for First Nations and these negotiations, they argued, should take place on a nation-to-nation 101 basis. As well, they disagreed with the 'political' nature of the process, which to them meant that the two non-Aboriginal governments did not have to admit to or acknowledge the existence of Aboriginal title in order to engage in negotiations. Finally, they felt that the B.C. treaty Process, despite the involvement of First Nations representatives in its creation, was too similar to the federal comprehensive claims process and shared its focus on extinguishment. Thus, the pan-lndianism that seemed to be developing in the land claims movement again proved to be fragile. In this sense, the success of the land claims movement was a limited one. The justice frame uniting the movement was beginning to tear apart as those First Nations with nationalist preferences began to show clear signs of disagreement with those who simply sought a degree of autonomy from the non-Aboriginal governments. Whereas the former hold out for a process that will do more to recognize their nationhood and to provide them with commensurate governmental powers, the latter view the treaty process as a pragmatic opportunity for rescuing their communities from poverty and dependency. But, in either case, the parties are necessarily embroiled in a relationship with the state in order to achieve their desired ends, since they are reliant on the state for funding and only the state can provide them with the powers of self-government and self-determination that they require. This fact often leads both groups to formulate their visions of justice within what Carroll and Ratner (1996a) refer to as a "liberal justice frame". In their view: "The fulcrum of contemporary Aboriginal politics is the conjoint struggle for land claims and self-government: the project is one of resisting an oppression that has been maintained in great part through state practices around the Indian Act, and (developing?) ostensibly new states under Aboriginal control. It is not surprising that a liberal justice frame - with its emphasis upon state-centred politics - might be a useful interpretive resource for Aboriginal activists engaged in this struggle" (Carroll and Ratner, 1996a: 420). 102 However, the potential hazard presented by this frame is the tendency to present the individual First Nation as being in direct relationship to the state in attempt to negotiate powers of government for that First Nation, thus fragmenting the hard fought coalition of the land claims movement even further. Indeed, as the B.C. Treaty Process has developed, the First Nation Summit (the body that evolved out of the FNC) has become more and more of a loose confederation than a unified and coordinated coalition. Within these negotiations, band and tribal social movement organizations have become the primary units of activity, making it increasingly difficult for the general body to orchestrate broad-based collective action. The importance of the state to the First Nation land claims movement in B.C. prevents any simple characterization of this movement as based solely in 'identity politics'. 1 0 Indeed, the political aims of the land claims movement include objectives that would typically be associated with identity movements, such as a demand for recognition of a previously disvalued identity and the right to cultural survival in the face of the totalizing and universalizing tendencies of western capitalism, as well as objectives that reflect a concern with the need for economic redistribution, such as a desire to repossess valuable resources in order to bring an end to economic marginalization and to fund a greater degree of cultural autonomy. In this sense, the land claims movement is less an instance of a New Social Movement, as defined by Habermas, Melucci, and others, and is better described by Nancy Fraser's (1997) terminology, as a "bivalent community" with interest both in gaining redistribution and recognition (this will be discussed in greater detail in Chapter 5). In sum, the First Nations land claims movement made major gains in the latter half of the th 20 Century, now embodied in the formation of the B.C. Treaty Process. In the next chapter, I explore the formation and operation of the B.C. Treaty Process, arguing that the procedural 103 guidelines instituted with this process do not succeed in laying the basis for fair and equal negotiations between Aboriginal and non-Aboriginal governments. Endnotes 1 For approaches that try to overcome these deficiencies in NSM theory, see Adam, 1993; Boggs, 1986; Carroll and Ratner, 1994; and Epstein, 1990. 2 One of the dangers of examining First Nations collective action around the issue of land claims solely through a social movement framework is that, in categorizing the groups involved as 'SMOs' and as part of a 'social movement', one risks inadvertently minimizing their claim to nationhood. While 'nationalistic preferences' may be only one of the four preferences listed in this chapter, it would be wrong to dismiss this option from the beginning with the very terms of our analysis. That is, by subsuming First Nations collective action under the label of 'social movement' and 'SMOs' they may become associated with movements whose aims are to gain recognition and/or the redistribution of resources within a particular society. However, some First Nations would see themselves as legitimately outside the present social order (those holding 'nationalistic preferences') and their collective action as that of an occupied population rather than that of an identity group seeking to gain recognition. It may even be questionable to paint their forms of collective action with the same brush used for other movements. Consider, for example, the use of blockades by First Nations to advance their concerns in British Columbia. Examination of this tactic does allow for comparisons to be made between these groups and social movements that use similar tactics, such as the picket lines used by unions and the road blockades occasionally used by environmental groups. However, one crucial difference that must be kept in mind is that the blockade is not always an act of civil disobedience or protest—it is often a legitimate denial of trespass onto First Nations lands (Blomley, 1996:19). Roads blocked most often run through reserves. Thus the right of way on this property, in law, may be considered to be at the discretion of the band. Therefore, although these actions may operate on similar principles as the blockades used by other movements—blocking the movement of people and/or commodities— different meanings may be the basis for such action since First Nations blockades tend to revolve around the issue of proprietorship. Furthermore, the label 'SMO', if left unqualified, may wrongly limit the scope of options available to such a group. If Aboriginal SMOs are too facilely placed in the same category as other (non-First Nations) SMOs, both new and old, one risks precluding their claim to nationhood. While this focus on definition may seem to be 'hair- splitting' one should keep in mind that ...the distinction between [North] American Indians being identified as members of peoples understood to constitute nations in [their] own rights, and being cast as members of groups commonly perceived as comprising something less—a community, say, or a family, a clan, a "minority group", or a "tribe"—incurs a decisive meaning (Churchill, 1994:293). Therefore, when using the tools of social movement theory, whether NSM or RMT, it is crucial to qualify our definition of First Nations groups as part of a 'social movement'. For this reason, I will follow Jenson (1993:337) in arguing that there is an affinity between national movements and social movements; that is, SMOs are required at the initial stages of national movements in order to promote and self-define the group as a nation. At the basis of this perspective is the understanding that any nation is an 'imagined community' (Anderson, 1991) that is the product of a collective construction of nationhood. Social movements are part of this process in that they often play a role in the imagining of new or previously unrecognized communities as 'nations'. In this imagining, the act of self-naming is crucial since it is the foundational act in strategizing the boundaries, formation, and resources of the new nation. That is, the act of naming defines not only who the potential constituents of the social movement will be, but also the goals of this movement, and the relations the movement should expect to have with social institutions and government. 3 These terms are adapted from concepts used in Menno Boldt's unpublished dissertation, "Indian Leaders in Canada: Attitudes Toward Equality, Identity, and Political Status" (1973, Yale University) as cited in Frideres, 1988. 4 Much of the work that follows owes a major debt to Paul Tennant's (1990) comprehensive study of Aboriginal politics in British Columbia. 104 5 By 'symbolic gesture' I am referring to the Joint Reserve and McKenna-McBride commissions discussed in Chapter 2, which only provided the appearance of redress. 6 First Nations were not able to bring an issue before the Privy Council unless the government of Canada permitted them to do so. 7 One of the challenges faced by traditionalist/ nationalist groups such as the UBCIC is that they often refuse to employ the discourse of European rationality to forward their claims. While this provides them with the legitimacy of maintaining a moral connection with First Nation practices and traditions, it also results in them being dismissed, misrecognized and misunderstood by non-Aboriginal governments. 8 Snow and Benford (1992) refer to such a master frame as an 'elaborated' one since it allows for a greater degree of ideational amplification to take place across seemingly different movement groups. 9 A 'status Indian' is a First Nations person who is registered under the Indian Act as an Indian. If a First Nation person is a 'non-status Indian' it is likely because his or her ancestors were never registered or lost their status for one of various reasons. 1 0 Kulchynski (1995) and Weaver (1990) both locate First Nations movements under this designation. 105 CHAPTER 4: THE BCTC PROCESS It is commonplace in the theory of negotiations to suggest that the substance of justice - the achieved end we intend as a resolution of an injustice - is predicated on the means, or procedure, developed to reach this end. It is the procedure selected as a means of redress that sets the parameters of justice: What issues will be discussed? What resources will be redistributed? What forms of recognition will be made available to the maligned party? Moreover, it is argued that the means to justice must meet the requirements of procedural fairness to ensure that the parties in conflict are provided the opportunity for equitable communication and that power imbalances are minimized to prevent any party or parties from resorting to forms of what Bourdieu (1991) refers to as 'symbolic violence' whereby they can mobilize various forms of capital (e.g. economic, cultural, linguistic, etc.) to the disadvantage of the other parties involved in the conflict. In this chapter I will outline the formal elements of the B.C. Treaty Process and their contribution to a system of procedural fairness, while also considering some of the informal elements of the negotiations that impact the perceived fairness of the process. I will also examine some of the changes being made to expedite and improve the B.C. Treaty Process. However, it will be argued that, in contrast to the philosophy of procedural fairness, these procedural changes may not have their desired effect until more is done to clarify the substantive goals of the B.C. Treaty Process. 106 4.1 The Report of the B C Claims Task Force The advent of the British Columbia Claims Task Force was motivated by the concerns discussed in Chapter 3: the activism of First Nations in British Columbia, the court cases favourable, or somewhat favourable, to First Nation land claim arguments, and growing public support for First Nations issues. A l l of these factors arose in a period during which changing philosophies of governance and increased economic globalization made Canada's and British Columbia's former policies appear cumbersome and untenable.1 The requests of First Nations were at last heeded by the federal and provincial governments and a tri-partite (Canada, BC , and First Nations) task force was established to develop a process through which land claim negotiations could be pursued. The British Columbia Claims Task Force came into being on December 3, 1990. The Progressive Conservative government of Prime Minister Brian Mulroney and the Social Credit government of Premier Bi l l Vander Zalm were the two governments that responded to the request made by the First Nations Congress that a tripartite process be initiated. Each party selected representatives to serve on the committee. The federal government appointed Murray Coolican, who had earlier chaired a task force to review Canada's land claims policy, and Audrey Stewart, who had experience negotiating specific claims as an official with the Department of Indian Affairs and Northern Development. The province selected Tony Sheriden, who was the deputy minister of Native affairs, and Allan Williams, a former minister of labour and attorney general in British Columbia (McKee, 1996). The First Nations chose three representatives: Joe Mathias, a later member of the First Nations Summit Task Force and a hereditary chief of the Squamish First Nation; Ed John, a hereditary chief of the Tl'azt'en First Nation who would also become a member of the First Nations Summit Task Force; and Miles 107 Richardson, currently the Chief Commissioner of the BCTC and former president of the Council of the Haida Nation. These representatives also received advice and information from Gary Yabsley, a Vancouver lawyer who had represented several First Nations in their land claims, and Paul Tennant, a professor of political science at the University of British Columbia and an expert in First Nations politics in British Columbia (British Columbia Claims Task Force, 1991). The Task Force began meeting on January 1, 1991. Much of the initial meetings consisted of reaching agreement as to the nature of the problem they were setting out to resolve. This included coming to a common understanding of the historical record of provincial and federal governments in B.C. and their shared failure to fully address issues of Aboriginal rights and title. However, the Task Force was careful not to politicize the historical record and risk alienating the two non-Aboriginal governments. Instead, they thematized their report around the issue of "creating future relationships" as a means to acknowledge that the past relationships between Aboriginal and non-Aboriginal peoples had been unacceptable and that new relationships would need to be forged to repair these historic wrongs. However, although the federal and provincial representatives on the Task Force accepted the historical record as it was laid out in the report, the final report did not require the federal or provincial governments to agree to or confirm its historical retelling of injustices against First Nations in B.C. The two non-Aboriginal governments simply needed to accept the 19 recommendations put forward by the Task Force (see Appendix A), and these recommendations did not require them to recognize the existence of Aboriginal title nor the detrimental effects ignoring Aboriginal title has had on First Nations in B.C. Within six months of its formation, the Task Force produced its report outlining the strategy for treaty negotiations in British Columbia. This was a remarkable accomplishment 108 given that this was the first time First Nations, provincial, and federal representatives had worked in concert to address the land question in B.C.; thus, at last, resembling a dialogical rather than monological approach to dealing with First Nation land claims (see Chapter 2). The work of the Task Force was aided by the fact that there were pre-existing linkages between some of its members - for example, Joe Mathias had worked previously with Murray Coolican on the Coolican Report and was also familiar with Allan Williams and Tony Sheridan. Indeed, at only one point during their discussions did a party get up and leave the table. This occurred when the First Nations representatives left the meetings one afternoon because they were unhappy with the extent to which the federal Department of Justice would be involved in influencing Canada's negotiation strategy.4 Over the weekend, the First Nations representatives engaged in private discussions with the government of Canada, and the following week they returned to the Task Force.5 In interviews conducted with people involved in the BCTC process, the report issued by the Task Force on June 28, 1991 was referred to both as the 'bible' of the BCTC process and as a politically motivated paper with little grounding in the actualities of negotiations. In all fairness, the report is neither of these things. The members of the task force discussed amongst themselves and consulted with interested individuals and parties with regard to the process through which land claims negotiations would be carried out, the issues to be discussed within this framework of negotiations (i.e. governance, land, resources, certainty, etc.), and the importance of interim measures and public education for ensuring the success of the treaty process (British Columbia Claims Task Force, 1990). In a short time period, they produced the groundwork for the development of the British Columbia Treaty Commission (BCTC), the organization that was to serve as the "keeper of the process", as well as nineteen 109 recommendations that were eventually agreed to by all three parties and which provided the "rules of the process", so to speak. In this sense, the Task Force succeeded in envisioning a process whereby treaty negotiations could be conducted in a manner acceptable to all parties and they provided this process with some basic, yet flexible, rules. However, the vision of the Task Force underestimated four key factors that would later contribute to difficulties experienced by the BCTC in trying maintain the treaty process. First, the Task Force was limited by the political necessity of getting the process started. For this reason, it was unable to be more definite in its 19 recommendations, leaving many of these open to self-interested interpretation. This became problematic as the parties came to take contrary interpretations on recommendations such as recommendation 16 - that the parties agree to interim measures sometime during the negotiations - and recommendation 2 - that the parties be permitted to introduce any issue at the negotiation table (British Columbia Claims Task Force, 1991: 36). Second, the Task Force misjudged the number of First Nations that would join the BCTC process. It was thought, based on the number of First Nations that had filed land claims under the existing federal comprehensive claims policy, that there would be "as many as thirty separate negotiations throughout the province" in the initial stages (British Columbia Claims Task Force, 1991: 36). However, given the very permissive definition of what constitutes a 'First Nation' established in the Task force report,6 the BCTC received 41 statements of intent within the first six months, many coming from smaller units than initially expected (including a rejected submission from the two-member New Westminster First Nation). Third, the Task Force merely stated that all parties in the process should be adequately funded without clarifying the form this funding would take. This matter was left to the 110 judgement of the provincial and federal governments who, in their Memorandum of Understanding (MOU), determined that the majority of funds would be distributed through loans (80%) rather than grants (20%). Finally, the Task Force provided the BCTC with no powers other than moral suasion for enforcing the nineteen recommendations. In effect, the recommendations were the rules of the game, but the referee was left without any strong means for ensuring fair play. These matters and others will be elaborated further in this chapter. A l l of these decisions were made out of political necessity. Without them, it would have been difficult to get the process underway. However, these political compromises would present some major challenges to the workability of the process, and, currently, participants in the process are hoping that the initial framework designed by the B.C. Task Force will prove to be flexible enough to allow these issues to be addressed. 4.2 The British Columbia Treaty Commission On the basis of the Task Force report, the British Columbia Treaty Commission Agreement was signed at the Squamish longhouse on September 21, 1992. Legislation to support this agreement was passed by the provincial government in 1993 through the Treaty Commission Act and by the federal government in 1995 through the British Columbia Treaty Commission Act (1995, c. 45).7 A l l three parties, Canada, B.C., and the First Nations Summit jointly proclaimed the B.C. Treaty Commission Act (RSBC 1996, c. 46) on March 1, 1996. The main purpose of the BCTC, according to the 1996 B.C. Treaty Commission Act, is to facilitate negotiations. This purpose consists of assessing the readiness of First Nations in B.C. to begin negotiations, allocating funds to First Nations to enable their participation in the treaty process, 111 encouraging timely negotiations, assisting in the provision of dispute resolution services where all parties agree to their necessity, preparing and maintaining a public record of the treaty negotiations, and performing any other tasks perceived to be consistent with the purposes of the Act. A l l of the aforementioned Acts provide legislative support for the establishment of a committee of five commissioners responsible for the operation of the BCTC. One of the five commissioners is the Chief Commissioner, who is appointed jointly by Canada, B.C., and the First Nations Summit. Of the remaining commissioners, one is appointed by Canada, one by B.C., and two by the First Nations Summit. A Chief Commissioner can only be removed from office by the agreement of the three parties whereas the individually appointed commissioners can be removed at any time by the appointing party. Other than this basic information about the structure of the Commission, however, the Acts provide little detail as to how the BCTC is to meet its purpose. In terms of direct guidance, the Acts merely state that the BCTC must produce an annual report on the status of treaty negotiations. When the first commissioners and Chief Commissioner (Chuck Connaghan) of the BCTC were appointed in April of 1993, they faced the difficult challenge of formulating just how they would go about meeting the requirements of the Task Force report and the B.C. Treaty Commission agreement. Although the BCTC had been established and the costs of its operation had been split 60-40 between the federal government and the province, an agreement was not yet in place for funding the negotiations between specific First Nations and the two non-Aboriginal governments. The provincial and federal governments appeared to be in no rush to undertake these difficult negotiations. In response to this hesitancy, the BCTC opened the process without funding and began accepting statements of intent from interested First Nations on December 15, 112 1993. This action persuaded the province and the federal government to complete their negotiations on cost-sharing (discussed below). Within 45 days of receiving a statement of intent, the Commission must give written notice to each of the parties to convene a meeting at which the parties will formally commit themselves to negotiations. After the initial influx of statements of intent that coincided with the BCTC officially opening its doors, the commissioners were kept busy facilitating and attending these meetings. These were exciting times for the young commission, as many of the meetings bordered on the cathartic as their rich symbolism combined with the excitement experienced by First Nations of at last being able to address long-standing injustices.8 After spearheading this initial phase of the negotiations, Chuck Connaghan retired as Chief Commissioner in December of 1994. Commissioner Barbara Fisher temporarily held the role of Chief Commissioner until the three parties to the negotiations could agree upon a new Chief Commissioner. On May 15, 1995, they selected Alec C. Robertson, Q. C. Robertson set out to 'institutionalize' the processes of the BCTC during his tenure. The Commission had to this point succeeded in getting the negotiations underway, but now faced the challenge of attending to the more difficult task of facilitating the parties in dealing with the actual substance of negotiations. Robertson and his fellow commissioners felt that the BCTC could best attend to this task by cementing their own internal systems and policies. First and foremost, decision- making mechanisms needed to be installed so that the BCTC could function more efficiently. Each commissioner was responsible for a portion of the tables, with the Chief Commissioner in charge of trouble-shooting throughout the province. However, BCTC meetings tended to get bogged down as each commissioner presented to the general group the numerous challenges faced at specific negotiation sessions. To better orient its meetings, the BCTC established 113 various committees responsible for attending to different areas of treaty-making, such as communications and funding. These committees were responsible for examining the facts with regard to certain issues and for generating recommendations to be brought to the general BCTC meetings.9 Miles Richardson, one of the architects of the B.C. Treaty Process, replaced Alec Robertson as Chief Commissioner November 19, 1998. Robertson had succeeded in pressing the government to consider interim measures and to improve their communication and public information strategy (by handing these responsibilities over to the BCTC); however, Richardson had to contend with the reality that the treaty process was still not moving as quickly as had been hoped. Under his guidance, the BCTC became active in trying to further address some of the more problematic issues that had been stalling negotiations: certainty, compensation, and interim measures. Meetings at the principals' level, between B.C., Canada, and the First Nations Summit, which had begun earlier in the process, were intensified to better address these issues, and the BCTC became more involved in these meetings. However, despite offering some clarity as to what each party meant in their use of these terms, they failed to advance the negotiations.10 At the current juncture, First Nations' debt loads have risen well above $150 million, yet few benefits have been experienced by their communities, resulting in a growing discontent with the treaty process. Similarly, in non-Aboriginal communities individuals are becoming more concerned about the money spent in negotiating treaties without achieving any tangible results. These concerns, and many others, have led Richardson and the BCTC to re-evaluate the treaty process, suggesting that the parties take an incremental approach to treaty-making through which they work to build agreements piece by piece rather than waiting to reach a comprehensive settlement (BCTC, 2001). 114 The establishment of the BCTC as the "keeper of the process" marked a significant change from earlier approaches to treaty negotiations in Canada, and around the world. It was felt that by creating such a body, some of the power imbalances witnessed in previous negotiations would be avoided. In particular, the BCTC would be in a position to monitor the playing field to help alert the parties to any potential imbalances. However, the BCTC was given no adjudicatory powers in performing this role; instead, it was required to rely entirely on 'moral suasion'. This power consists of attempts to influence the parties to remain faithful to the recommendations of the Task Force report. For example, if a party does not fulfill its promise to obey a recommendation, the BCTC will typically write a letter to or meet with the party to alert them of their transgression. As well, the other two principals will be alerted to the infraction in hopes that the transgressing party will not wish to lose 'face' 1 1 in front of its co-negotiators. However, if this tactic fails to persuade the transgressing party, the BCTC will then consider going public with this information, although it has rarely taken this step since the BCTC's inception. In general, most commissioners, both former and current (especially those appointed by the non-Aboriginal governments), suggest that moral suasion is the most effective tool available to the BCTC and that the Commission should not seek more "teeth". Their reasoning is that so long as the BCTC maintains its integrity and is regarded by all parties and the public as being 'fair', it wil l be capable of influencing the three parties to the negotiations. Having more "teeth", in their view, would likely bring the parties to resent the BCTC and to perceive it as a threat, thus leading the principals to close their doors to the commissioners and their influence.12 Another way in which it was hoped that the BCTC would help minimize power imbalances within the negotiation process was by taking funding responsibilities out of the hands of the non-Aboriginal governments. It was feared that if the non-Aboriginal governments had 115 control over funding they would be able to use this leverage to influence activities at certain tables. Therefore, it was decided that a neutral body such as the BCTC would be a less controversial allocator of funds. However, this also meant that the BCTC would be saddled with the difficult and time-consuming work of orchestrating funding, not to mention the resentments that can arise in a situation where there is not enough funding available for all those making requests. This potentially detracts from the respect and trust the BCTC has sought to establish amongst the parties involved in the treaty-making process. The BCTC faces this challenge by being candid about its limitations and by making the effort to address face-to-face any funding concerns voiced by First Nations.1 3 The discourse of integrity and consensus-building that is drawn upon to describe the nature of the BCTC's influence in the B.C. Treaty Process, however, masks the impotence of this organization. While the concern that having more 'teeth' could push the negotiating parties to tune out the BCTC may be legitimate, the assumption that an appeal to moral rationality will somehow sway an intransigent party is naive in the context of negotiations where manipulation and guile are not uncommon in pursuit of broader political ends. Indeed, federal and provincial negotiators are often able to construct 'communicative blockades' whereby they will close progress to a discussion by saying, "we understand your position, but we have a different interpretation." In mobilizing this discursive technique, the governments are able to portray a First Nation interest as a hard 'position', and their own position as a reasonable response.14 However, by drawing the battle lines on an issue in this intractable manner, they also curtail the possibility of considering creative options - something they only attempt to do when appropriate pressure is placed upon them.15 116 4.3 The Treaty-Making Process Like the federal Comprehensive Claims approach to treaty making, the B.C. Treaty Process is a multi-staged system. It begins, as noted above, with the First Nation submitting a statement of intent to the BCTC. Unlike the Comprehensive Claims policy, however, the First Nation is not required to demonstrate their Aboriginal title to the lands claimed (Molloy, 2000). As federal and provincial negotiators often mention, the process is meant to be a political, as opposed to legal one. Therefore, it is held that an initial compromise is made by all parties - the non-Aboriginal governments do not require the First Nations to prove their Aboriginal title and the First Nations do not attempt to hold the non-Aboriginal governments liable for infringement of title.16 The problem is that this supposed compromise represents more the interpretation of the non-Aboriginal governments than an explicitly stated pre-negotiation exchange. While it is broadly accepted amongst the parties that negotiations are a more realistic path toward reaching agreement than the courts, Aboriginal representatives have rarely accepted their entrance into negotiations as a means for absolving the federal and provincial governments of their historical guilt for divesting their lands and imposing themselves on First Nations cultures.17 The guidelines of the BCTC specify that the statement of intent is to be made by an Aboriginal governing body representing a 'nation' - that is, a group that shares a collective sense of identity as a nation, that has historically exercised control over an area or region, that has existed historically as a governing body, and that represents a sizeable number of Aboriginal persons (B.C. Claims Task Force, 1991). The governing body of the nation could be a traditional government based on a hereditary system, a band established under the Indian Act, or a tribal council comprised of a political alliance of bands or tribes. In making its statement of intent, the First Nation governing body needs to demonstrate that it has received a mandate from 117 the people it represents to negotiate a treaty. To meet this obligation, it is required that the governing body give clear notice to all of its constituents of its intentions to negotiate a treaty, as well as provide them with the opportunity to participate in the decision-making process.18 With regard to their territory, the governing body must attach a map marking its traditional territory to its statement of intent.19 Furthermore, the governing body is required to notify the BCTC of any territories that may potentially 'overlap' with neighboring Aboriginal groups.20 Once the statement is submitted, the BCTC will review the statement to ensure that all of the requirements are met, then it will forward copies to the federal and provincial governments and schedule a meeting between the three parties to take place within 45 days of the filing of the statement. The second stage of the process involves preparing for negotiations and assessing the readiness of the parties. This stage officially begins with the meeting of the parties organized by the BCTC. This meeting is chaired by the BCTC, who use this opportunity to explain to the parties the criteria for readiness and to assess the length of time it wil l take each party to ready themselves. The parties to the negotiations are also expected to publicly state their commitment to negotiating a treaty with one another. Finally, the parties may also begin at this stage a discussion about the issues for which they feel negotiations are required (BCTC 1997b). As mentioned above, these are often symbolically potent gatherings that can build a sense of promise and hope for treaties amongst all who attend. The potential downfall of this is, however, that it can unduly raise expectations in First Nations communities about the commitment of the government to the process and give the impression that change is on its way. Once the meeting is over, the parties begin the work of preparations, with each party filing a readiness submission with the BCTC when they are sufficiently prepared. To be considered 'ready' the parties must meet the following criteria: a) the First Nation must make a 118 formal commitment in writing to negotiating with Canada and B.C.; b) each party must appoint a Chief Negotiator to head their negotiations and liaise with the B C T C 2 1 ; c) each party must confirm that it has a mandate to negotiate a treaty on behalf of its constituents as well as an effective process by which this mandate can be adapted and developed as they proceed through negotiations; d) each party must demonstrate that they have the financial and human resources to negotiate a framework agreement; e) each party must describe the ratification procedure it intends to follow if it succeeds in concluding a final treaty; f) each party must identify procedural and substantive issues it wishes to negotiate; and, g) First Nations must identify and begin to address overlap issues, while the federal and provincial governments must identify non- Aboriginal interests in the region and identify mechanisms for consulting these non-Aboriginal third parties. If the BCTC accepts each party's claim to readiness, the parties are permitted to advance to stage 3, the framework agreement negotiations (BCTC 1997b). It is during stage 3 framework agreement negotiations that the parties begin to confront the true challenges of treaty-making. Stage 3 negotiations set the agenda for the eventual Agreement in Principle (AIP) negotiations, which serve as the basis for the final agreement. Thus, it is the framework agreement stage at which the parties must come to a common understanding of what issues will be on the table for negotiation (BCTC 1997b). This presents a problem with an issue such as 'compensation', which some First Nations demand be on the table, while the provincial and federal governments refuse to discuss the matter. First Nations such as the Musqueam, whose traditional territory covers much of the lower mainland, have been unable to progress beyond stage 3 in negotiations because they are unable to reach an agreement with the non-Aboriginal governments to address this issue, though it is imperative to the Musqueam. Furthermore, it is at stage 3 that the parties must define the procedural arrangements 119 they will implement for their negotiations (BCTC 1997b). These arrangements can include difficult questions of 'openness' and 'confidentiality' as the parties seek to determine to what extent they need to get the general public involved, and to what extent they need in camera negotiations where they can brainstorm without fear of raising alarm in the community. As well, the three parties must establish the structure of their negotiations: What purpose will be served by the public main tables? What will the role of negotiators and chief negotiators be at the private side tables? What working groups need to be established? How frequently will these various bodies meet? The developments at this stage of the negotiation process help determine the specific character of the negotiations, and it is here that the negotiators' maxim that "no two tables are alike" begins to ring most true. Each table differs slightly procedurally from the next, with some placing more emphasis on open and public negotiations, while others feel the need for greater privacy. Some may need to establish numerous working groups to deal with the complexity of issues at the table, while others may be more reliant on side tables. Nonetheless, despite these preferences, each table is required to pass through this stage of the rigid six-stage process in order to arrive at stage four, the negotiation of the AIP. Stage four has proven thus far to be the toughest stage of all, with only one First Nation in the province successfully completing this stage, the Sechelt. To make matters worse for proponents of the process, the Sechelt have recently stepped back from their AIP to re-assess some of its elements. While they are still in communication with the federal and provincial governments, what was expected to be the first success story of the B.C. Treaty Process seems an ever more distant hope. 120 The BCTC (2001) recently referred to stage four AIP negotiations as part of a 'big bang' theory of negotiations. This stage requires the parties to make a thorough examination of the substantive issues outlined in the framework agreement and to work toward developing 'chapters', or sub-agreements, on each of these issues. The substantive issues typically include matters such as land, wildlife, cash settlements, cultural heritage, self-government, access, sub- surface mineral rights, foreshore harvesting, municipal servicing agreements etc (see, for example, the Sechelt Agreement in Principle, 1999). The work of developing chapters on these issues begins with the "technical working groups", comprised typically of assistant negotiators and analysts, who consult with various experts and interested parties in the community to arrive at a common understanding amongst the three parties to the negotiations as to what the 'facts' are in relation to a specific issue. This group will feed information to the "main table working group" comprised of the negotiators for the three parties, who review these facts, examine points of agreement and disagreement, and present recommendations to the "main table". The "main table" refers to the periodic gatherings of chief negotiators who are the key decision makers at the local level, who are responsible for communicating treaty issues within this public forum, and who, in the case of the chief negotiators for Canada and B.C., consult and negotiate within their own governments to gain approval for drafted chapters. The structure of these negotiations are by no means linear, however. The main table also plays a role in directing the activities of the main table working group and of the technical working groups. As well, there is also a "legal drafting group" made up of negotiators and legal counsel who are charged with translating the issues from negotiation language to legal language. At the end of all of this, the negotiations hope to achieve a document that compiles all of the chapters, in which each respective chapter is consistent with all related chapters. 121 Before the AIP can be considered fully complete, the First Nation must settle all 'overlap' issues with neighboring First Nations. This can be a challenging requirement if the neighboring First Nations have a history of poor relations. It can also be challenging if the neighboring band is at an early stage of its negotiations and has not fully clarified what lands it wil l propose be transferred to it in the event of a treaty. Thus, the AIP negotiations are derided as being part of a 'big bang' approach to treaty- making because they attempt to address virtually all issues of land and resources, governance, and fiscal relations in one extended round of intense negotiations, aiming to lay the basis for the entire final agreement. In contrast to this process, the BCTC now recommends that an incremental approach be used whereby the parties attempt to create "sl im" AIPs that leave some issues aside to be discussed in higher level negotiations between Canada, B.C., and the First Nations Summit, while simultaneously reaching substantial agreements on issues particular to the First Nation engaged in treaty negotiation, such as land and resources, that will allow the First Nation to begin preparation for its post-treaty existence (BCTC, 2001). The BCTC (2001) also points out that the funding arrangements agreed to by Canada and B.C. create a powerful disincentive for First Nations to reach an AIP. Until the point of signing the AIP, the debts that a First Nation has amassed are interest-free; however, funds borrowed after the signing the AIP are subject to interest. The logic of this funding policy is likely that this wil l inspire the First Nation to make quick progress toward final agreement and ratification after signing the AIP. But the policy has backfired and, in fact, leads to First Nations being more hesitant to sign an AIP. Less can be said about the final two stages of the BCTC process since no First Nation has yet made it to through to the end of the process. In stage five, it is envisioned that negotiations 122 will take place to finalize the treaty laid out in the AIP. Here, technical or legal issues that were not resolved in the AIP discussions will be resolved. At the end of stage five, the parties will sign and ratify the final agreement. This effort will bring the parties to stage six, at which point they will begin to implement the treaty. This implementation may take place at once, or be implemented over time, depending on the arrangements agreed to by the three parties (BCTC 1997b).22 The report of the B.C. Claims Task Force simply laid out the skeleton for the negotiation process. Over time, flesh has been added to this process, as the parties define the procedural requirements they see as necessary to achieve workable treaties. However, there has been a tendency for the parties to get locked in proceduralism, whereby, at times, the procedure appears to be an end in itself. This weighing down of the treaty process in part stems from a lack of clarity as to what treaties are supposed to be about. One person will tell you that treaties are a vehicle for justice and for dealing with the past, while another will insist they are about certainty and creating a better, common future. The lack of a common end goal often leaves the parties at cross-purposes, unable to come to agreement on key issues because they are unable to reach an understanding about the direction in which the agreement is to lead them. The breadth of the issues to be covered in treaty negotiation also contributes to the mounting proceduralism. With treaties potentially affecting such a broad array of interests, a multitude of parties are scrambling to be heard within the treaty process. The consultation process, described below, sets out to organize the involvement of these parties, but it nonetheless takes a great deal of time to examine and assess the particularities of each treaty decision and its potential impact. More insidiously, as with any project to which a great deal of government funding is directed, a treaty negotiation "industry" gets under way, and many lawyers, 123 consultants, and experts of various stripe are scrambling to get a piece of the pie. The cynical would suggest that these individuals lack motivation for settling treaties since this would mean an end to their pay cheques. But even barring the potential for self-interested misuse of the treaty process, the ever-expanding division of labour within the treaty process can lead to a fetishization of the means of negotiations with little regard for reaching substantive ends. As more parties become involved in the negotiations, the likelihood grows that they will seek to solidify their involvement by arguing for the importance of the role they play. For example, within the federal government bureaucracy of treaty-making, no document can change hands between negotiation parties until it has been read by upwards of six people from various departments, each charged with protecting a particular vital interest. A single item can take months to crawl through this institutional structure. Under these circumstances, individuals tend to concentrate most on the role they are assigned, rather than on the over-arching purpose for which this role has been created - in short, they seek to competently follow and reproduce the rules of the bureaucratic game.23 4.4 The Memorandum of Understanding on Cost Sharing Perhaps even more difficult for the provincial and federal governments than agreeing to the overall structure of the B.C. treaty process was coming to an agreement between themselves as to how they would divide the costs of treaty-making. In the discussions between the three parties leading up to the British Columbia Treaty Commission Agreement (1992), there was noted disagreement between the federal and provincial governments with regard to how the costs of negotiating and settling treaties would be divided. However, both non-Aboriginal governments did agree that some sort of funding arrangement was necessary, otherwise 124 individual negotiation tables would bog down under the weight of funding disagreements. The First Nations Congress representatives told the non-Aboriginal governments that it was up to them how they split the costs, although they also stressed that First Nations should not be forced to pay for a process designed to overcome their past victimization.24 Thus, a bilateral process for negotiating costs was established after the signing of the British Columbia Treaty Commission Agreement. At this point in time, Michael Harcourt and the NDP had replaced Vander Zalm's Socreds in the provincial capital. The NDP had campaigned in 1991 with a promise to address the long-standing land claims issue, and in their pre-election position document on land claims (NDP, 1990) they promised to recognize Aboriginal title and the right to self-government. Unlike the Socreds, who felt that under the terms of union the federal government was responsible for all costs of treaty-making, the NDP felt that since the province was the 'owner' 2 5 of most of the lands in B.C., the province would have to make some contribution to the costs of treaties. Harcourt went so far as to acknowledge publicly that the province would cover as much as 25% of the total costs of treaty-making. The federal government, in contrast, wanted to create the impression that the cost-sharing was split 50-50 between the two parties. Thus, the negotiations for the M O U turned on this crucial disagreement, and the compromise the parties sought was to find a means whereby they could both represent themselves as having lived up to their public statements on costs. In this sense, the M O U negotiations were an example of what Goffman (1967: 12) describes as "face work"; that is, the parties took actions to prevent the M O U negotiations from resulting in a loss of face, giving the impression that the end results were consistent with the line they each publicly established. 125 The parties were aided in achieving this goal by the mathematical models they established to determine the costs for which each party was responsible. These models were fairly simple with regard to matters such as pre-treaty costs, negotiation costs, and the funding of self-government, where the parties agreed to have the federal government cover 60% of the costs, while the provincial government would cover 40%. 2 6 However, it was a greater challenge to devise a formula for settlement costs. The difficulty stemmed from two key elements. First, the parties disagreed with regard to what the province's contribution to the cash settlement would be. The federal government maintained its position that everything should be split 50-50. The province, on the other hand, argued that this question was related to the second element, the question of determining land values. Since much of the province's contribution to final settlements would be through land transfers, the province felt that the difficult issue of valuing land had to be addressed before decisions about splitting the cash settlement could be made. It was eventually agreed that land would be valued against so-called "representative land". Through this system, lands in the province are reduced to measurements of average land. For example, urban lands in Vancouver would be valued according to the measure of high value representative land. They also had to take into consideration the value of the resources located on any plot of land and it was determined that the value of these resources would be assessed and considered part of the cash settlement, which would be determined by a sliding scale cost- sharing formula. The sliding scale cost-sharing formula was designed based on the assumption that First Nations, depending on the region in which they lived, would receive different combinations of land and cash. In particular, it was expected that First Nations situated in or near urban areas would receive most of their settlement in cash rather than land. Depending on the land/cash ratio 126 being distributed to a First Nation, Canada's share of the cash settlement costs would vary- between 75% and 90%. Their contribution would be higher in cases where a significant amount of land was distributed and lower where the settlement was primarily cash-based. Similarly, the province's share of any cash settlement varies between 10% and 35% according to this formula - lower in cases where the province provides substantial value in land, and higher in settlements where little land is involved. Based on these figures, each party was able to present to their constituents that the costs were being divided according to their initial projections - 50-50 according to the federal government and 25-75 according to the province. The federal government was able to emphasize the province's contributions in land to support their argument, while the province referred to the cost-sharing formula for cash settlements to give the appearance of having met their goal. The provincial and federal governments on June 21, 1993 finalized the M O U , nine months after the signing of the British Columbia Treaty Commission Agreement. While these negotiations were termed a political success for the two governments involved, problems have arisen with regard to their impact on First Nations involved in treaty negotiations, leading some to question the initial decision made by the First Nations' leadership not to involve themselves in these talks. For example, based on the Memorandum of Understanding, urban lands redistributed in treaty are to be valued in relation to 'high value representative land'. In densely populated regions such as Vancouver, where the price of property is extremely high, the addition of a small parcel of land to a treaty settlement package could then account for a significant portion of the final agreement. This has led some First Nations, such as the Musqueam - who have had much of their traditional territory swallowed by the city of Vancouver - to demand quid pro quo that lands lost should be compensated in a manner that reflects their current value. 127 4.5 The Consultation Process Critics of the Nisga'a treaty, which was negotiated outside of the B.C. Treaty Process, charged that it lacked adequate consultation mechanisms. Tom Molloy (2000), chief federal negotiator for the federal government at Nisga'a, suggests that in the later stages of the Nisga'a negotiations, consultation was carried out on a scale on par with the consultation mechanisms of the B.C. Treaty Process, but critics feel they were not provided enough opportunity for input in the earlier stages, largely due to the private nature of the federal government's comprehensive claims policy. The B.C. Treaty process, in contrast to Canada's comprehensive claims policy, was designed to be an open process. Thus, it was determined that a portion of the negotiations at every table would occur in public (the main tables), that sectoral interest groups would be consulted at the local and provincial level, that local government would be involved both through consultation and through membership on the provincial negotiating team, and that the parties would endeavor to keep the general public informed and educated on treaty matters. Each set of negotiations, therefore, begins with a protocol agreement on openness. The extent to which the negotiation table is open will depend on the sensitive nature of the matters to be discussed. In some instances, where it is felt the negotiators require the flexibility to brainstorm outside of public ear-shot, more side table discussions will be held to provide a degree of confidentiality and to avoid alarming the public with negotiations that are more exploratory than substantive. However, there is a growing sense at many treaty tables that once negotiations reach a certain stage, it is to their advantage to conduct more of the negotiations in public. Public meetings usually take place in the form of main tables, although there are 128 instances where side tables, main table working groups, and technical working groups are open to the public. These meetings are often long, dry, and rarely garner much in the way of public attendance. The consultation process began with the Treaty Negotiations Advisory Committee (TNAC), which was established by the provincial and federal governments and is comprised of 31 members representing all major provincial interest and industry groups, including forestry, organized labour, business community, fish, wildlife, and environmental groups. T N A C is a forum through which these representatives can advise and counsel both non-Aboriginal governments, although it often serves also as an opportunity for provincial and federal representatives to present information to the interest and industry groups. This group meets once a month for a period of two to three days. During this period, TNAC will divide into sub-groups to discuss specific matters, such as land and forestry or compensation for businesses affected by treaty settlement. However, they also meet as a general forum to present their views to senior members of the provincial and federal governments. These views are not based upon consensus amongst those present; instead all are welcome to present their advice, and the two non- Aboriginal governments will typically respond to this advice in chart form, either demonstrating how the advice was incorporated, or explaining why they were unable to use a certain piece of advice.2 9 In order to demonstrate their readiness at specific tables, the provincial and federal governments are required by the rules of the B.C. Treaty Process to establish mechanisms to consult with local, non-Aboriginal interests. The two non-Aboriginal governments fulfill this requirement bilaterally by establishing Regional Advisory Committees (RACs) and Local Advisory Committees (LACs) to represent the range of community interests. The primary 129 difference between the RACs and the LACs, in areas where both exist side-by-side, is that the R A C is the consultation body for a broader region in which several sets of treaty negotiations may be underway (the Lower Mainland R A C would be an example), whereas the L A C deals with issues concerning a specific set of negotiations (the Tsawwassen Consultation Group is a L A C in this sense). Frequently, these bodies are comprised primarily of individuals with specific sectoral interests, such as in fishing, agriculture, hunting, or forests, but they also include representatives from environmental organizations and, in some cases, religious groups. The reasons provided for why these committees are largely made up of groups with material interests, as opposed to social interests, are that individuals who have a material interest at stake tend to be more concerned about these issues and therefore more willing to participate on an advisory body, and, also, that these individuals often wear "many hats" in the community and are able to represent social interests in addition to material interests. Still, it should be noted here in anticipation of the discussion of 'justice' and 'certainty' (Chapters 6 and 7) that all of the advisory bodies providing input to the negotiation policies of the federal and provincial government are heavily weighted toward issues of pragmatic or instrumental import (i.e. certainty). As we shall see, although this provides the non-Aboriginal governments with useful technical advice with regard to specific economic circumstances within the areas they are negotiating, non-Aboriginal voices with a concern for moral issues are less often heard. In September of 1994, a protocol agreement was signed between the province and the Union of B.C. Municipalities (UBCM), spelling out a formal relationship between the two parties that would guarantee representation for each municipality in the province on a Treaty Advisory Committee (TAC). Furthermore, each TAC was empowered to assign one of its members to serve as a representative on the provincial negotiation team at a specific set of 130 negotiations. This representative would be permitted to provide input to the provincial negotiating team, although he or she would possess no decision-making power with regard to the negotiations. Prior to this development, it was assumed that municipal representation would occur through the RACs, but municipal governments pushed hard for stronger representation in treaty negotiations, given that they are the governments that will be working and living alongside First Nations governments in a post-treaty environment. This development was controversial, however, because, from a First Nations' perspective, it appeared to weigh the negotiation table more heavily in favour of non-Aboriginal parties. Already the First Nations found themselves negotiating against two non-Aboriginal governments who had the advantage of extensive resources and personnel. With the addition of a TAC member to the table, the First Nation found itself facing three potential adversaries in treaty-making.30,31 Based on recommendations 17, 18, and 19 of the British Columbia Claims Task Force Report, Canada, B.C., and the First Nations were required to jointly undertake a public education process, to provide public information at each individual table, and to prepare resource materials for use in schools and by the general public (B.C. Claims Task Force, 1991). Initially, they responded to these recommendations by creating a Tri-partite Education Committee that was responsible for devising a province-wide education/information campaign. As well, once the negotiation tables were up and running, the three parties appointed consultation managers to attend to the business of public information and education at the local level. However, the Tri- partite Education Committee soon proved to be ineffective, as its members had trouble agreeing to a joint information strategy. The BCTC expressed concern that the parties were not fulfilling the Task Force recommendations, and in 1997 it was decided that the BCTC would be provided with extra funding to carry out public education and information. It was felt that the perceived 131 neutrality and integrity of the BCTC made it the ideal source for information about the process. But in taking this responsibility, the BCTC reminded the three parties that they were not absolved of their public education and information responsibilities.32 Keeping the public informed has remained a challenge, however. After the Nisga'a treaty was finalized in 1997 there was a great deal of media attention to the subject of treaty- making in B.C., but this glut of information soon led the general public into a state of 'treaty exhaustion'. Moreover, despite this brief, intense period of public awareness, public information and education has failed to shake the deeply entrenched historical denial that is prevalent amongst the general public of B.C. The "white founding myth" of B.C. (Tennant, 1990) and the myth of white benevolence (Furniss, 1997) continue to cast a powerful spell over the province. School-based programs, where they actually exist, and limited public debate have done little to increase the knowledge everyday British Columbians possess about the past injustices suffered by First Nations in B.C. While a general sense exists in the mainstream public that wrongs were committed, the specific nature of these wrongs is often left undiscussed, and the thematic frame of the B.C. Treaty process, "creating future relationships", has been used as a rationale for forgetting the past. In the lower mainland, First Nations such as the Tsleil-Waututh have taken the initiative to do their own public education amongst the non-Aboriginal population. Often this involves speaking in schools, where students may learn about the Haida, but not about any other First Nation in the province. Indeed, in Vancouver, students are often unaware that First Nations live on the boundaries of and within the city and have claims to city property. The only time non- Aboriginal students hear anything about these local First Nations is when a controversy arises with regard to their lands. For example, the Tsawwassen became a topic of public concern when 132 they decided to erect a condominium unit called Tsatsu shores near the Tsawwassen Ferry Terminal. In response to their plans, people from the Delta community erupted in protest, arguing that this development would threaten bird habitats and encroach on public beach access. However, in making this argument, they conveniently ignored that the ferry terminal, as well as a coal port, had been arbitrarily imposed on Tsawwassen lands, killing most of the shell fish life which was a source of food for the Tsawwassen people.33 Recently, the B.C. Liberal party, who came to power in the province in 2001, have argued that a referendum on treaty issues will serve many purposes, including public information (see Chapter 8). The idea is that all British Columbians will be provided the opportunity to have input into the provincial government's negotiation mandate through responding to a series of questions concerning key treaty issues. The B.C. Liberals feel that this effort will re-spark interest in the treaty process and create a broad dialogue about treaty-making amongst members of the general public. In this manner, it is held that a wider variety of voices will be heard than is currently possible through the RACs, LACs and TACs. However, this strategy has been severely criticized by individuals from all parts of the political spectrum in B.C. First Nations view the idea of the referendum as a unilateral act of bad faith since, in their eyes, the B.C. Liberals are not living up to the negotiating conditions agreed to by the previous government. As well, they argue that it is unacceptable that the majority would be given the power to decide the rights of the minority. Even representatives from the business community fear that the referendum might increase uncertainty in the province by angering First Nations and further slowing down the treaty process. The call for a referendum does, however, point to a definite problem with the current state of public education. As the process currently stands, those with vested material or 133 economic interests are becoming more educated about the past and the current need for treaty, while others are left uninformed and uninvolved. This said, a referendum is far too blunt an instrument to deal with such a complicated matter. A referendum is only likely to further polarize parties rather than create mutual understanding and positive relationships between Aboriginal and non-Aboriginal communities.34 4.6. The Processes within the Treaty Process Each of the three principal parties to the negotiation—Canada, B.C. and the First Nation Summit—possesses distinct internal processes that shape their treaty mandates and present limitations to the effectiveness of their negotiations. a) The Federal Government After the formation of B.C. Treaty Process, the federal government felt it necessary to create a separate body responsible for negotiations in B.C., the Federal Treaty Negotiation Office (FTNO). The official reasoning for establishing the FTNO was that the issues being discussed at treaty tables went beyond the interests of the Department of Indian Affairs and Northern Development (DIAND); therefore, it was deemed preferable to have a separate office that could better foster cooperation amongst various federal departments (e.g. Fisheries and Justice). The FTNO, nonetheless, is integrated with DIAND and many of the executive members of the FTNO have DIAND experience. The FTNO is also part of the B.C. Regional Office of Indian and Northern Affairs Canada. Until December 15, 1993, when the BCTC opened its doors to statements of intent from First Nations, the FTNO was a small office undertaking preparation work for treaty negotiation. 134 However, once the treaty process was underway, the FTNO became bigger and more bureaucratized. Negotiators and staff were recruited to attend the 41 negotiation tables that had been established. The federal government was in a better position to deal with the sudden influx of First Nations into the process since they entered the negotiations with a great deal more experience in negotiating treaties than the other parties. As well, the FTNO was well-resourced and able to hire ample consultants, negotiators, and staff. However, these advantages held by the federal government do have negative consequences for the negotiations as a whole since the federal government's past experience with treaty negotiations contributes to its inflexibility with regard to what is possible through treaty-making, and the ample resources enable the increased bureaucratization and proceduralization of the treaty process. It is commonplace for Chief Federal Negotiators to say that they are engaged in three sets of negotiations: one with the parties at the table, a second with the public, and a third within their own bureaucracy. The process for internal negotiations begins with the federal negotiation team at a specific treaty table. This team is supplied with general and specific treaty negotiation mandates that are approved by the federal cabinet in Ottawa. However, in the course of negotiations, it is often necessary for the negotiation team to clarify or seek greater flexibility from their mandates. The first step in the process of seeking mandate accommodation is to approach the director of the FTNO, John Watson, and ask him to champion the issue with other federal departments and DIAND to gain their support. The next order of review for getting any change accepted is to present the issue to the federal caucus in B.C. If approval is achieved here, the matter will be forwarded to the federal caucus and steering committee in Ottawa for their approval. Finally, ultimate approval for the accommodation comes from the federal cabinet.35 135 The concern of the federal government in this extensive process is to ensure that all government interests are considered before the federal government commits itself to any particular direction. There is also a need to ensure that the federal government does not commit itself to any arrangement that might cause problems elsewhere in the province, or in the country. For this reason, the federal government displays an actuarial attention to detail in order to determine that every document produced for treaty purposes is meticulously reviewed by all concerned departments, as well as by the Department of Justice which scans each document to ensure that the language does not jeopardize government interests. b) The Provincial Government In general, the provincial government has fewer resources and fewer staff members at its disposal than the federal government. Some within the process charge that the province has not committed sufficient resources to the job of getting treaties done; however, at tables where the province has committed its resources, such as the Tsawwassen table, the fact that the province is less bureaucratized can permit them more efficient turnover in terms of dealing with issues presented at the treaty table. In 1987, the Socred government created the Native Affairs Secretariat, establishing a body within the B.C. government committed to Aboriginal issues. In 1988, the Secretariat was transformed into the Ministry of Native Affairs. Under the Socreds this Ministry maintained a policy that was against acknowledging Aboriginal title and undertaking treaty negotiations, but they did demonstrate an openness to discussing these issues with First Nations (Tennant, 1990). After the NDP was elected in 1991, they renamed the ministry the Ministry of Aboriginal Affairs to reflect a new direction whereby more resources were to be committed to addressing 136 Aboriginal issues of self-governance and treaty-making. However, under both governments the Ministry lacked power in the provincial cabinet in comparison to the power held by DIAND in Ottawa. Since it is not a line Ministry, and since it does not possess a hefty budget like DIAND (approximately $6 billion), the Ministry of Aboriginal Affairs does not by itself command a great deal of influence amongst the other ministries. This said, the Ministry has enjoyed strong backing from government leaders such as Mike Harcourt (NDP), which has allowed it to overcome some of its structural limitations. Another concern about the Ministry of Aboriginal Affairs was that it was spread too thin and lacked the resources to adequately deal with treaty-making, let alone the other responsibilities it had with regard to "Aboriginal Affairs" (e.g. health and community development). For this reason, after their spring 2001 election the B.C. Liberals divided the Ministry of Aboriginal Affairs, locating responsibilities for treaty negotiations with a specially designed Treaty Negotiation Office in the Ministry of the Attorney General. Other Aboriginal services were off-loaded to the newly created Minister of Community, Aboriginal and Women's Services. It is too soon to tell whether or not this new organizational strategy will assist in expediting the province's ability to negotiate treaties. As with their federal cohorts, however, the provincial negotiating teams need to engage in a series of internal discussions prior to negotiating. These negotiations begin within their own ministry to gain the support of those in charge (the deputy minister and minister), and continue with negotiations with the line ministry caucuses to ensure that these ministries do not feel threatened by the issue under consideration and to explore options for meeting First Nation demands. Finally, the negotiating teams receive their ultimate approval from the provincial cabinet. Also, similar to the federal government, the provincial negotiation teams are guided by 137 both general and specific mandates. The general, province-wide, mandates identify provincial interests on key treaty issues, but leave open the possibility of local considerations. These mandates are developed by the treaty mandate branch of the provincial government through consultation with interested provincial agencies and ministries. Moreover, the treaty mandate branch consults with TNAC to ensure that the interests raised by this body are represented in the mandates. The principles that guide the province-wide mandate include keeping private property off the table, ensuring that the Canadian Constitution applies to all citizens in B.C., and jurisdictional certainty between First Nations and municipalities. The specific mandates provide more detailed direction to the provincial negotiating teams to help them achieve "fair and acceptable settlement packages that address unique circumstances" (Ministry of Aboriginal Affairs, 2000). These mandates, however, often prove to be too rigid and tend to lack clear definition, causing negotiators to seek clarification. This results in slowdowns at the negotiating tables as provincial and federal negotiators are forced to engage in complex internal negotiations within their bureaucracies in order to achieve progress at the treaty table.36 c) The First Nations Summit The First Nations Summit grew out of the demise of the First Nations Congress. Chief Bi l l Wilson was at the helm of the former organization, which was instrumental in the formation of the B.C. Treaty Process and which designated the First Nation representatives for the Task Force. However, Wilson's outspoken and controversial style alienated some of the members of the Congress. Wilson was soon impeached and the organization changed its name to the First Nations Summit. Wilson has returned as a member of the Summit executive task force in recent 138 years, after Ed John left the task force to pursue a position with the provincial NDP and Joe Mathias passed away unexpectedly. The First Nations Summit is made up of representatives from the majority of the bands and tribal councils in the province. Each of these 'First Nations' is understood to be an autonomous negotiating body, and the Summit does not claim to hold any negotiating power. Instead, the Summit is a forum for First Nations to meet and arrive at resolutions for the Summit Task Force to carry out. This focus on First Nations autonomy prevents the Summit Task Force from striking any agreements with the other two principals on province-wide issues of concern, such as certainty, interim measures, and compensation. In discussing these matters, the Summit Task Force is limited to drawing parameters for table negotiations. The Summit also provides an opportunity for information sharing amongst First Nations involved in the treaty process, allowing them to learn from the research and experiences of other tables. The Summit is complemented in this latter task by regional bodies such as the south- coast-based First Nation Treaty Negotiation Alliance, which fosters cooperative research and mutual assistance amongst First Nations around common issues. Of the three principals, the Summit faces the most severe resource limitations. Indeed, the FTNO's communication staff of nine people alone outnumbers the entire staff of the First Nations Summit, which at the time of writing was seven people, two of whom were on temporary contracts. Whereas the FTNO and the former Ministry of Aboriginal Affairs have expanded since the initiation of the treaty process, the Summit has not received a single funding increase since its inception, leaving it at a disadvantage in its discussions with the other two principles since it does not have the capacity to carry out the research needed to counter the arguments made by the non-Aboriginal governments. 139 The Summit also faces the challenge that, although it represents a majority of First Nations in the province, approximately 30% have either boycotted the B.C. Treaty Process or are strategically waiting on the sidelines to see if adequate settlements will be reached (Ratner et al., 2002). As well, the Summit to date has not been sufficiently inclusive of youth, elders and women. With these voices relatively scarce at Summit discussions, this body lacks a legitimate claim to representativeness when speaking on First Nation issues. Moreover, the fissures evident amongst the First Nation population are open to exploitation by anti-treaty forces seeking to disrupt the negotiations. This problem was evident in the Nisga'a settlement, when community members opposed to the final agreement were co-opted by B.C. Liberal opposition forces to speak out against and attempt to destroy the legitimacy of the Nisga'a treaty. 4.7 The Process Outside of the Process Negotiations do not occur in a vacuum. Myriad actions are enacted outside of the official negotiation process to try to affect what occurs within the process. This can include informal discussions between interested parties, lobbying, direct action protest activity, legal action, the media, and policy development in related areas. The First Nations involved in the treaty process, given the inevitable power imbalances faced when negotiating with two non-Aboriginal governments, have been most active in seeking means outside the official process to increase their leverage at the treaty table. One important strategy for First Nations groups has been to foster relationships with businesses, environmental groups, municipalities, and labour organizations. By winning the support of these so-called "opinion leaders" in the province, the First Nations hope to encourage broader public support for treaty negotiations that will place more pressure on non-Aboriginal governments to commit to 140 the treaty-making process. As well, by arranging meetings between First Nation leaders and vested interests in the province, such as the "Business at the Summit" meetings organized by the First Nations Summit, new opportunities for social and economic development are made available to individual First Nations. Through an expanded dialogue between First Nations and businesses, some First Nations have successfully negotiated joint-management and cooperative economic arrangements with businesses that serve to provide economic and social benefits to First Nations on the ground. For example, these arrangements may take the form of permitting resource extraction activities on traditional land in exchange for jobs for local Aboriginal persons and a portion of the revenue. An arrangement of this sort not only helps improve the economic situation on a particular reserve, it can also provide much needed funds and governance experience that the First Nation can apply to its treaty negotiations. First Nations also have in their action repertoire pressure tactics that can be implemented to try to gain a quick response from governments. These include the tactics that played an instrumental role in the formation of the B.C. Treaty Process: direct action protests (e.g., blockades) and legal action. With regard to the former, at various points during the treaty process individual First Nations have elected to "exercise their Aboriginal rights" by cutting timber on their traditional land in response to non-Aboriginal government procrastination on reaching interim measures to protect these stands of timber. Other First Nations have blockaded roads to distribute information and to raise public awareness about particular treaty issues. The First Nations Summit also has a "war council" comprised of chiefs and First Nations representatives seeking to orchestrate coordinated First Nations protests in response to non- Aboriginal government inactivity. However, the war council is a recent development and has not yet succeeded in mobilizing the First Nations of the Summit in a unified manner. Part of the 141 difficulty they face may stem from the resolute focus on autonomy possessed by the First Nations Summit, and the fragmenting nature of the Treaty Process which deals with First Nations on a nation-by-nation basis. With these factors in place, the First Nations of the Summit appear less likely to make common cause with one another. This may change, however, depending on the actions of the B.C. Liberal government with regard to the treaty process. With regard to legal action, First Nations involved in the treaty process have typically avoided engaging in legal battles over Aboriginal rights and title, since the federal and provincial governments have stated they will cease negotiations with any First Nation that takes them to court. However, the First Nations Summit reserves the right to intervene in court cases that might have implications for First Nations' interests in the province. For example, when prior to their election the B.C. Liberal party took the Attorney General to court, arguing that the Nisga'a treaty was unconstitutional, the Summit intervened to ensure that the interests of First Nations involved in the B.C. Treaty Process would be protected. As well, the Haida have stepped away from the treaty process to present their claim to Aboriginal title to Haida Gwaii (the Queen Charlotte Islands) to the courts. It is not expected that, if successful, this case will answer all the questions of interest to the Haida - governance and fiscal arrangements would still need to be negotiated; however, it is hoped that it will clarify the nature of Aboriginal title and pressure the Aboriginal governments to proceed with negotiations. Such tactics are not solely the prerogative of First Nations. Municipal politicians and industry representatives have also been active in using the resources and political channels at their disposal to pursue their interests outside the treaty process. Many municipal representatives feel that their position on the provincial negotiation team is too limited; therefore, they endeavor to use their political connections to make sure that their concerns are heard. Informal 142 discussions are held with Members of Parliament, Members of the Legislative Assembly, Ministers and Deputy Ministers to ensure that important issues of municipal concern are brought to the attention of cabinet members and others with decision-making power in the treaty process. Similarly, TNAC representatives do not restrict their activity to advising within the formal T N A C body; instead, they use their networks and resources to make presentations and statements to politicians in Victoria and Ottawa in hopes of influencing the political agenda. None of these activities should come as a surprise and all should be expected to occur in almost any broad negotiating context. However, they do signify the frustration many feel with the limitations of the formal treaty process. Indeed, since the federal and provincial governments possess an inordinate amount of power within the process, and the BCTC is not empowered with the means to motivate the governments, the non-Aboriginal governments are placed in a position where they can manipulate the process to delay settlement. At times, manipulation of this nature may not be a conscious political strategy but instead reflect a fetishization of the procedure of internal wranglings, through which bureaucrats concentrate more on the procedural rules than the end results the process is intended to accomplish.38 4.8 The Challenges Faced in the B.C. Treaty Process At every stage of the B.C. Treaty Process, from its formation by the B.C. Task Force to recent proposals for a revision of the process, problems are evident. These problems include the specific issues mentioned in the course of this chapter: the problematic definition of 'First Nation', the vagueness of some of the Task Force recommendations, the loan-based funding arrangements, the costs of negotiations to both First Nations and governments, the lack of 'teeth' on the part of the BCTC, the rigidly defined mandates, the lack of political will of the parties, the 143 bureaucracy, the limitations of the consultation process, and so on. Each matter represents a specific difficulty that must be addressed to help expedite the treaty process. But from a sociological standpoint, one wonders if there are broader, structural problems that may prove recent efforts to address some of these problems to be nothing more than an attempt to bail water from a rapidly sinking ship. Indeed, several fundamental problems may lay the conditions for these specific disruptions. First, the B.C. Treaty Process lacks clearly defined goals. This claim is not intended as a critique from a managerial standpoint, but rather as an observation on the fragmented focus of the process. At different times, and by different sources, the treaty process is described as being about certainty, justice, reconciliation, Aboriginal rights or equality. It is most likely about some or all of these things, but this vision is yet to be clearly articulated. Of course, the goal of negotiations is that the parties will define the meaning of the process through their discussions; however, once locked into the struggle over issues of economic and political importance, the parties find themselves already chained to stances that are not amenable to meaning creation. This limits the symbolic resonance of the treaty negotiations and leads to negotiations more reflective of business arrangements than justice. This issue is particularly evident with regard to the historical narrative, or lack thereof, developed through treaty negotiation. Although the B.C. Task Force Report contains a section on the history of non-Aboriginal/Aboriginal relations in B.C., this narrative had little social or political impact. Since the non-Aboriginal governments were not asked to agree to the Task Force's historical retelling of the events leading up to the formation of the B.C. Treaty Process, they were not required to express any remorse or sense of guilt for the injustices placed upon Aboriginal peoples. Instead, they were able to attend to the Task Force's theme of "creating 144 future relationships", an expression that has been employed by non-Aboriginal government representatives to avoid discussing the past. It is not uncommon to hear at treaty tables, following a First Nation's presentation on the hardships they experienced due to the policies of the federal and provincial governments, one of the non-Aboriginal government representatives remark: "we are here to talk about the future, not the past."3 9 With this statement, the non- Aboriginal government representative performs, however unwittingly, an act of symbolic violence, using a position of power and discursive competence to attempt to 'name' or define the negotiation context in terms suitable to government interests (Bourdieu, 1991). This act is arbitrary since it does not reflect any definite principle of the negotiation guidelines but instead a non-Aboriginal government interpretation of the meaning of negotiations. Based on this imposition of meaning, the process more and more falls into conditions of historical blindness. Stories of hardship and suffering are termed inappropriate and extraneous to the important work of building pragmatic agreements.40 (The fact that the treaty process has been in place for a ten year period without achieving any AIP agreements, despite the fact that the parties have been focusing on their 'future relationship', is disregarded here.) However, an opportunity is lost in this process to learn about and from the past, and to use this knowledge for improving the future. The contention here is not that the B.C. Treaty Process should serve to help the parties write a shared, singular history describing the events - a history of that nature is not likely possible; instead, the argument is that the parties need to discuss and open their narratives of the past to one another, exposing them to contradiction and contention, to arrive at a point where it is at least possible to tolerate the narrative possessed by the other.41 Without a learning process of this nature, the historical denial that is the source of much intercultural 145 conflict in B.C. will continue unabated. Furthermore, consultation processes will continue to be mired in positional debate and self-interested posturing. A second broad issue has to do with the process itself. The B.C. Treaty Process represents the admirable effort of three parties to come together and define a process for negotiations. However, as one First Nation Chief has stated, "a process is a process is a process...". 4 2 In other words, a process is only as strong as the political will of the participants involved. Instead of stepping back to review the reasons why negotiations are occurring and to recommit themselves to the process, the parties are more often redeveloping their internal systems for negotiation. The ambitious and complex task of negotiating treaties with First Nations in B.C. has led to the need for further institutionalization and bureaucratization to attend to the multiple negotiation tables and the multitude of issues under discussion. But this need to systematize often occurs at a distance from the vaguely defined goals of the process. Like a 'language game' (Wittgenstein, 1994), the process becomes an assemblage of written and unwritten rules that serve to reproduce the process. Moreover, the process becomes an end in itself, as more professionals and experts seek to get involved. As the system expands, new levels of accountability and consultation are presented as 'necessary steps' based on a logic that these actions will present a line of defense against any mistakes being made. However, these additions more likely contribute to the process falling into a state of endless self-justification and systems- maintenance where the end goals appear less and less essential. Finally, the process has failed to overcome the serious power imbalances that have historically hampered relations between Aboriginal and non-Aboriginal governments. Intercultural negotiations are always problematic since linguistic and cultural differences 146 exacerbate the likelihood of parties misunderstanding one another. Attempts were made through the design of the treaty process to address potential imbalances deriving from cultural differences and relations of power by setting up a neutral, facilitative body, the BCTC, to be the "keeper of the process". But, as demonstrated above, the BCTC does not possess the adjudicatory or political power needed to correct the long-existing imbalances evident in the negotiation process. Indeed, engagement in the process of treaty negotiation has removed some of the traditional sources of power possessed by First Nations in B.C and left them struggling for their rights within what has become a singularly impotent process. The B.C. Treaty Process has the unfortunate side-effect of removing or discouraging traditional First Nations points of leverage—direct and legal action. As mentioned above, the non-Aboriginal governments have a policy of discontinuing negotiations with any First Nation engaging in legal action; therefore, any First Nation that turns to the courts for clarification on an issue related to Aboriginal rights will find themselves cut off from the negotiations. Through this action, the First Nation would also lose access to the loan funding it receives through the process since the BCTC would no longer be able to provide these monies to the respective First Nation. The federal and provincial governments, in contrast, do not formally prohibit direct action. However, the nature of the process discourages unified First Nations action, and maintains a focus on the individual band. This fragmentation of First Nations is partially the result of the autonomy focus of the First Nations Summit, but it also results from First Nations being dealt with on a First Nation by First Nation basis which masks their common interests and does not facilitate collective action since each First Nation is too immersed in the complexities of its negotiations. Whether this results from an intentional 'divide and conquer' strategy, or is an unfortunate consequence of the 147 process, the end result is that First Nations are deprived of the political and legal sources of leverage they have historically possessed in their dealings with non-Aboriginal governments, leaving them more susceptible to the power imbalances of the B.C. Treaty Process. In the next chapter, I offer a critical evaluation of procedural models of justice, suggesting that the problems identified here are not merely the result of the poor design of the B.C. Treaty Process, but rather stem from a failure to address the substantive issues underlying the project of treaty-making. An alternative conceptual model, based on the work of Nancy Fraser (1997), will be offered. Endnotes 1 See Chapter 7 for a more thorough treatment of these factors. 2 Three representatives were selected from First Nations because it was felt that an extra First Nations representative would help counteract a potential power imbalance between Aboriginal and non-Aboriginal representatives. As well, to be considered truly 'representative' of First Nations in B.C. it was decided that Aboriginal representatives should be selected from each of the key regions: the lower mainland, the north coast, and the interior. 3 For the federal government reaction to the recommendations of the Task Force, see Canada (1991). 4 The Department of Justice has been the institution within the Canadian government most adamant about 'extinguishment', viewing this as the safest and most time-tested way for the Canadian government to achieve legal certainty. 5 Interview with Task Force member, April 23, 2001. 6 The Task Force surmised that it was inappropriate to impose a definition of group identity on First Nations since these communities had already suffered through many years of having their identity denned by the Indian Act. However, it was not expected that so many First Nations would choose to define themselves according to the 'band' criteria imposed by the Indian Act rather than in accordance with larger tribal groupings. 7 First Nations groups involved in the formation of the treaty process were insistent that legislation be passed to support the B.C. Treaty Process. It was felt that without legislation the First Nations would have less power to ensure that the non-Aboriginal governments honoured the BCTC agreement. 8 Information garnered from interviews with BCTC commissioners and staff members 2000-2001. 9 Information garnered from interviews with BCTC commissioners and staff members 2000-2001. 1 0 Information garnered from interviews with BCTC commissioners and staff members 2000-2001. 1 1 The term 'face' is used here in Goffrnan's (1967) sense of the word; that is, it reflects the "positive social value" parties hope to maintain by keeping their behavior congruent with the particular "line" they have taken in the course of the interaction. 1 2 Information garnered from interviews with BCTC commissioners and staff members 2000-2001. 1 3 Information garnered from interviews with BCTC commissioners and staff members 2000-2001. 1 4 Again, we can turn to the work of Goffman (1967) to gain more insight into this technique. In an effort to 'save face' the non-Aboriginal governments work hard to define the situation as one in which the other party is acting 'out of line'. The goal, in this regard, is to make oneself appear reasonable and the other as making 'unreasonable' demands. For a fuller application of the work of Goffman to a negotiation context, see Keith Doubt (2000). 1 5 This strategic positioning is exemplified by the pressure pro-land claims forces had to muster just to get the process underway. The logic of governance was to deny the existence of Aboriginal title and rights until forced to 148 do so for economic and legal reasons. Bad publicity can have some influence, but governments tend to respond to such publicity first by trying to manufacture their own spin on the issue. 1 6 Information garnered from interviews with federal Chief negotiators, negotiators, and staff members, 2000-2001. 1 7 Members of the Union of B.C. Indian Chiefs objected to this aspect of the Treaty Process early on and today feel their concerns are vindicated by the position of the non-Aboriginal governments on these issues. 1 8 There have been complaints within individual First Nations that the leadership has failed to live up to this requirement and instead make unilateral decisions to involve the community in negotiations. For