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A critical engagement with Nancy Fraser’s theory of bivalent justice : implications for the BC Treaty… Kajlich, Helena 2003

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A Critical Engagement with Nancy Fraser's Theory of Bivalent Justice: Implications for the B C Treaty Commission process by Helena Kajlich B.A. (Hons) University o f Queensland, 2000  A THESIS S U B M I T T E D IN P A R T I A L F U L F I L M E N T OF T H E R E Q U I R E M E N T S FOR T H E D E G R E E OF M A S T E R S OF A R T S in T H E F A C U L T Y OF G R A D U A T E STUDIES (Department o f Political Science)  W e accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA August 2003 © Helena Kajlich, 2003  In presenting this thesis in partial fulfillment o f the requirements for an advanced degree at the University o f British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying o f this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication o f this thesis for financial gain shall not be allowed without my written permission.  Department o f Political Science The University o f British Columbia Vancouver, Canada Date: August 2 7 , 2003 th  Abstract  This thesis explores Nancy Fraser's reconceptualization o f the relationship between claims for recognition and redistribution through an analysis o f her theory o f bivalent justice. Her framework is applied to the B C Treaty Commission process to assess its usefulness. This thesis also critically engages with two of the provincial Liberal government's principles for negotiating treaties with First Nations: first, the provincial government refuses to negotiate compensation for the wrongful infringements of First Nations' rights and second, self-government is recognised as a form o f local government with delegated powers. In applying Fraser's theory o f bivalent justice, which includes the core normative principle o f participation parity and a model of status subordination, it is evident that the provincial government's mandate is inconsistent with the type o f justice Fraser envisages. Rather, not only should compensation be part o f the treaty process, but also, self-government should be negotiated as an inherent right, not as a right delegated from the federal and provincial government. There are, however, two other important challenges to the provincial government's mandate: first, from those First Nations who assert that the inherent right to self-government exists beyond the framework o f the Canadian Constitution. The second challenge arises from an analysis of the trends o f privatization. Such a critique exposes how the provincial government appropriates the objective of self-government for First Nations and represents it as being "municipal-like" in nature. Finally, I conclude that these discursive trends o f privatization may expose an important limitation to Fraser's theory. That is, these discursive practices inhibit the implementation o f transformative remedies that are crucial for working towards the type o f justice Fraser proposes.  T A B L E OF CONTENTS  Abstract  ii  Table o f Contents  iii  Acknowledgements  iv  Chapter One: Fraser's Theory o f Bivalent Justice and the B C Treaty Process Introduction  1  Part One: Defining the Research Problem 1.1  Central Research Questions  3  1.2  Terms/Perameters o f Research  4  Part Two: Literature Review 2.1  Recognition and Redistribution: Towards a Theory of Bivalent Justice  5  2.2  The Recognition/Redistribution Dilemma  6  2.3  A Socialist/Deconstructivist Theory of Justice  8  2.4  Complicating Recognition/Redistribution: Reformulating "The Dilemma"  10  2.5  Critical Engagements with Fraser's Theory  14  2.6  Problematizing Fraser's Bivalent Justice: Materialist  2.7  Feminist Insights  21  The Problem of Incommensurability  23  Chapter Outline  26  Chapter Two: Compensating First Nations: Remedying Injustices of Exploitation and Misrecognition Introduction  28  Part One: Compensation in the Treaty Process 1.1  The B C Treaty Commission Process  29  Part Two: Compensation and the Provincial Liberal Government's Treaty Mandate 2.1  Introduction  35  2.2  Separating Recognition and Redistribution through the Treaty Process . . .  36  2.3  Locating the Dominant Discourse o f Dependency  41  2.4  Applying Fraser's Theory o f Bivalent Justice to Compensation  46  Conclusion  48 - iii -  Chapter Three: Negotiating Local Government Introduction  50  Part One: Self-Government in the Treaty Process 1.1  Negotiating Self-Government  54  Part Two: Identifying Problems with the Government's Negotiating Mandate 2.1  Realizing Bivalent Justice: Negotiating Self-Government  55  2.2  Self-Government as an Inherent Right  57  2.3  Appropriating "Oppositional Discourses"  59  2.3.1  The Valorization o f Self-Sufficiency  61  2.3.2  Reregulating/Reprivatizating First Nations'Politics  66  2.3.3  Indigenization  69  2.3.4  Managing Risk  71  Part Three: Implications for Fraser's Theory o f Bivalent Justice  73  Conclusion  75  Chapter Four: Working Towards Bivalent Justice in British Columbia: Concluding Remarks  77  Bibliography  83  - iv -  Chapter One Fraser's Theory of Bivalent Justice and the BC Treaty Process  Introduction During the last decade a dialogue has emerged among various political and legal theorists that interrogates the relationship between the politics o f recognition and the redistribution o f wealth. Nancy Fraser, one o f the most prominent theorists consistently contributing to this debate, has argued that with the international expansion o f capitalist economies, current concerns with identity politics have failed to address the growing divide in inequalities o f wealth. Fraser 1  argues that the "post-socialist condition" following the demise o f Soviet communism, represents a historical moment where there no longer exists any universal normative frameworks to govern an emancipatory politics that can feasibly challenge liberal capitalism. Fraser critiques the antiessentialist tendencies o f postmodern theory, arguing that the absence o f a universal normative framework undermines the capacity for postmodern politics to be transformative as such an approach continues to exist within, and be reliant upon, a liberal capitalist paradigm. Fraser has called on theorists to develop a comprehensive normative framework that moves outside liberal capitalism by addressing both the politics o f recognition and redistribution and conceptualizing these as interdependent yet distinct. That is, for Fraser, recognition and redistribution are interrelated yet irreducible, requiring an overarching theory o f justice. Fraser develops a theory o f bivalent justice that is founded upon her reconceptualization o f recognition and redistribution as mutually imbricated. She suggests that injustice cannot be characterized as exclusively a matter o f either misrecognition or maldistribution, but because  Nancy Fraser (1997a) 'From Redistribution to Recognition? Dilemmas of Justice in a 'Postsocialist' Age', p. 11-39 in N. Fraser (ed.) Justice Interrupts: Critical Reflections on the 'Postsocialist' Condition. New York: Routledge at 11. Nancy Fraser (1997b) 'Heterosexism, Misrecognition, and Capitalism', Social Text 52/53 15 (3 and 4): 279-89 Fall/Winter at 186. -1 1  2  these are so intricately interwoven, remedies committed to realizing justice must redress both simultaneously. Fraser could be seen as a materialist feminist as she is concerned with redressing the material inequalities that individuals' experience and that arise from both injustices o f recognition and distribution. Other materialist feminists have entered this debate drawing on M a r x i s m to recentre economic concerns. They argue Marxist insights have been overlooked by "ludic" postmodern projects that have focused primarily on the effects o f power on the embodied self, for example, through a politics of aesthetics. Materialist feminists aim to take as their point 3  d'appui individuals' lived experiences as part o f a wider system o f social relations. Therefore, 4  while drawing on the tools provided by postmodernism, materialist feminists move away from considering the embodied subject as the primary site o f power, to consider macro structures of economic relations in liberal capitalist societies. It has been argued, however, that the trends o f privatization pose an important problem for politics. The complex and often contradictory logic of privatization serves to "appropriate 5  oppositional discourses," among other things, and this has regressive implications for realizing justice. Reregulation represents one dominant trend associated with privatization whereby 6  government reinscribes different regulative practices. These trends of privatization employ discursive tactics that legitimate particular remedies being advanced that attempt to redress inequality, but that actually recreate inequality. These trends, while promoted through discursive language, have important material effects. They limit the scope of Aboriginal rights that w i l l be recognized and this has implications for whether economic and cultural justice w i l l be realized.  3  Rosemary Hennessy and Chrys Ingraham (1997) 'Introduction: Reclaiming Anticapitalist Feminism', p. 1-14 in R.  Hennessy and C. Ingraham (eds) Materialist Feminism: A Reader in Class, Difference, and Women's Lives. New York: Routledge at 5. Dorothy Smith (1987) The Everyday World as Problematic. Toronto: University of Toronto Press at 159. Susan Boyd (1999) 'Family, Law and Sexuality: Feminist Engagements', Social and Legal Studies 8(3): 369-390 4  5  at 377.  A n essential part o f materialist feminism is therefore an engagement with these discursive trends as part o f a broader engagement with the implications o f neo-liberalism. Some feminist scholars have critiqued Fraser's failure to address the implications o f these trends for her theory of justice. 1 aim to expand upon these critiques by considering the 7  relationship between Fraser's theory o f justice and the discourses o f privatization through an analysis o f British Columbia (BC) Treaty Commission process. The objective o f this thesis is twofold: first, to critically engage with the provincial Liberal government's mandate i n the B C Treaty Commission process in order to develop strategies that could be advanced to ensure the treaty process works towards bivalent justice; and, second, to examine this mandate in order to expose both the strengths and weaknesses o f Fraser's theory o f bivalent justice.  Part One: Defining the Research Problem 1.1  Central Research Questions Three central research questions guide this thesis.  1)  First, in applying Fraser's theory o f bivalent justice to the B C Treaty Commission process, what strategies could be negotiated to work towards her theory o f justice?  2)  Second, how does an analysis o f the provincial Liberal government's mandate i n the treaty process reveal the benefits o f Fraser's theory o f bivalent justice?  3)  Third, how do the discursive trends o f privatization advanced by the provincial Liberal government through the treaty process problematize Fraser's theory o f bivalent justice?  Marlee Kline (1997) 'Blue Meanies in Alberta: Tory Tactics and the Privatization of Child Welfare', p. 330-359 in S. Boyd (ed.) Challenging the Public/Private Divide. University of Toronto Press: Toronto. Boyd, Supra note 5; Mary Condon (2002)'Privatising Pension Risk: Gender, Law, and Financial Markets', p. 128168 in B. Cossman and J. Fudge (eds) Privatization, Law and the Challenge to Feminism. Toronto: University of Toronto Press at 161.  6  7  -3 -  1.2  Terms/Parameters of Research There are important limitations associated with the methodological approach o f this  thesis. In drawing on the literature surrounding Fraser's theory o f bivalent justice and applying it to the provincial government's mandate for negotiating treaties, I use government documents, such as agreements-in-principle, press releases and other position statements to trace the government's various discursive practices. I do not attempt to represent First Nations' views on these policies, and my critiques are made as a non-First Nations person committed to a process o f decolonization. I draw on the vast resources published by First Nations and also the position statements o f First Nation organisations, such as the Union o f B C Indian Chiefs and the First Nations Summit o f B C , to represent some of First Nations' "oppositional discourses" that contest and challenge the provincial government's mandate. Another important limitation to my research is the terminology and language I use, which exemplify the explanatory power I am invested with as a researcher. Chandra Mohanty urges academics to be aware of the "need to examine the political implications o f our analytic ft  >  • •  strategies and principles." The ways in which I categorize the diverse identities o f "indigenous peoples" have vast political implications. In trying to be more accountable as a researcher, it is important that I explain the terminology I use and consider some of the implications of its use. "Indigenous peoples" is used to refer to the diverse "first peoples" internationally. It is associated with the growing movement of indigenous internationalism. "Aboriginal people" is a legal term used in Canada that encompasses First Nations, Metis and Inuit. This category is used to mean 9  "original inhabitants" or "first peoples." When I employ it as an area o f research I potentially undermine the multiplicity o f experiences o f First Nations, Metis and Inuit. "Indian" was the category first used by colonizers and continues to have legal definitional power through the 8  Chandra Talpade Mohanty (1999) Under Western Eyes: Feminist Scholarship and Colonial Discourses in C.  Mohanty, A. Russo, and L. Torres (eds) Third World Women and the Politics of Feminism, Indiana University Press at 55, emphasis in original. -4-  Indian Act [1985]. In this thesis I use "First Nations" to refer to those nations either involved in, or boycotting the B C Treaty Process and "Aboriginal" when referring to concepts applicable to all o f Canada's first peoples. "Non-First Nation" refers to those who do not identify as Canada's "first peoples."  10  Part Two: Literature Review 2.1  Recognition and Redistribution: Towards a Theory of Bivalent Justice Nancy Fraser's article "From Redistribution to Recognition? Dilemmas o f Justice in a  'Postsocialist' Age," later republished as the first chapter o f her book Justice Interruptus: Critical Reflections on the "Postsocialist" Condition in 1997, initiated what became a larger 11  dialogue around the relationship between a politics o f recognition and redistribution. Since Fraser's first formulation of the dilemma which, she argued, was caused by claims for recognition undermining those for redistribution, there have been numerous theoretical engagements with her work and attempts to clarify the relationship between the two. This literature review traces the shifts within Fraser's own work over the last five years examining her reformulations of her theory o f "bivalent justice." It also traces these theoretical debates through the work o f theorists such as Iris Marion Young, Anne Phillips and Judith Butler. Finally, I identify two challenges to Fraser's theory o f bivalent justice that arise from: first, trends o f privatization; and, second, the tensions caused by incommensurable claims for recognition between those First Nations who reject the legitimacy of the state to determine their status in Canadian society and those who use the institutions of the state to decolonize their relations with the Crown. These tensions w i l l be introduced in this chapter and explored through this thesis.  'Aboriginal people' is a term used in the Constitution Act, 1982 that includes all of Canada's indigenous peoples. Linda Tuhiwai Smith observes that this concept of "first peoples" has, at times, been co-opted by white settlers to distinguish themselvesfrommore recent immigrants. As she succinctly states, however, for these people "their power, privilege, their history are all vested in their legacy as colonizers." Linda Tuhiwai Smith (1999) Decolonizing Methodologies: Research and Indigenous Peoples, Auckland: University of Otago Press at 7. 9  10  -5 -  2.2  The Recognition/Redistribution Dilemma Nancy Fraser argues in Justice Interruptus that theories focused on the recognition o f  difference have privileged cultural issues o f identity, failing to adequately account for the interconnectedness o f recognition and redistribution. While maintaining that the politics o f recognition and redistribution are inseparable, she develops a theory o f justice that attempts to encompass all forms o f oppression within two theoretically distinct categories, injustices arising from lack o f cultural or symbolic recognition and those arising from the distribution o f wealth. Fraser argues that this approach overcomes the problems inherent in existing frameworks that promote divided and incomplete theories o f justice. Within Fraser's theory, all forms o f injustice exist along a continuum she constructs between these two distinct types o f injustice, depending on the "root" or "core" o f the injustice. A t one end, an injustice o f recognition is concerned with cultural injustice, including cultural domination, nonrecognition, misrecognition, and disrespect. A t the other end o f the continuum, an injustice arising from redistribution is concerned with socioeconomic injustice, which includes exploitation, economic marginalization, and deprivation. Theories that approach these types o f injustices as mutually exclusive, Fraser argues, has led to "the recognition/redistribution dilemma" whereby: The politics o f recognition and the politics o f redistribution often appear to have mutually contradictory aims. Whereas the first tends to promote group differentiation, the second tends to undermine it. Thus, the two kinds o f claim stand in tension with each other; they can interfere with, or even work against, each other.  11  Fraser, Supra note 1.  12  Ibid at 16.  -6-  Fraser attempts to reconceptualize the relationship between recognition and redistribution so that a theory o f justice can resolve this tension, redressing injustices arising from both simultaneously. Fraser argues that most groups are not situated at either end o f the spectrum experiencing only one type of justice, but represent what she terms "bivalent" collectivities. Fraser states that "bivalent collectivities, i n sum, may suffer both socioeconomic maldistribution and cultural  misrecognition in forms where neither of these injustices is an indirect effect of the other, but where both are primary and co-original."  Examples she gives o f complexly situated bivalent  collectivities are those based on gender and "race," both requiring enhanced forms o f recognition that would resituate them as respected and valued identities and in so doing, would reinforce these categories through positive recognition. A t the same time, redistributive projects are needed to redress the exploitation and economic marginalization these groups experience. The aim o f redistributive projects, Fraser asserts, is to restructure the economic sphere so that gender and "race" are no longer categories that define sources o f oppression and privilege. It would, as Fraser states, put these identities "out o f business" as such.  14  While Fraser considers most collectivities to be bivalent, that is, experiencing injustices arising from both misrecognition and maldistribution, she argues that some collectivities are located primarily at either end o f the continuum. For example, Fraser argues that exploited working classes within capitalist economies suffer injustices arising exclusively from the political economy and not from cultural non-recognition or misrecognition. In capitalist 15  societies, the mode o f production structures class relations so that the working class is the most exploited, doing most o f the work for the least amount o f money. A t the other end o f this  Nancy Fraser (1998) 'Social Justice in the Age of Identity Politics: Redistribution, Recognition and Participation' p. 3-67 in The Tanner Lectures on Human Values. Salt Lake City: University of Utah Press at 15, emphasis in original. Fraser, Supra note 1 at 22. Ibid at 17. 13  14  15  -7-  recognition-redistribution continuum is sexuality, which Fraser argues, is "rooted wholly in culture, as opposed to political economy."  16  She justifies her characterization o f sexuality as a  matter o f recognition and not redistribution because homosexuals: are distributed throughout the entire class structure of capitalist society, occupy no distinctive position in the division o f labor, and do not constitute an exploited class. Rather, their mode o f collectivity is that o f a despised sexuality, rooted i n the culturalvaluational structure o f society. 17  Injustices experienced by gay/lesbian people are therefore best remedied through recognition, not redistribution. While Fraser assumes that collectivities o f class and sexuality emerge from their respective injustices of redistribution and recognition, she recognizes that it may be problematic to assume that any "pure collectivities o f this sort" actually exist. Fraser observes that exploited 18  working classes may simultaneously experience injustices of misrecognition and disrespect. Fraser maintains, however, that even these injustices arise primarily as a result o f their economic exploitation, concluding again that the appropriate remedy is therefore redistribution, not • •  19  recognition.  2.3  A Socialist/Deconstructivist Theory of Justice Fraser proposes a theory of justice that aims to resolve the emergent tension between  claims for recognition that she argues reaffirm group identities and redistributive projects that dissolve group differentials, distinguishing between affirmative and transformative remedies. Affirmative remedies redress misrecognition by retaining the existing power relations that structure identities, but aim to be more inclusive. In remedying maldistribution, affirmative remedies create greater opportunity for individuals to participate in the market as economic actors. She attributes these affirmative approaches to "mainstream multiculturalism" and "the  16  17 n 19  Ibid at 18, emphasis added.  Ibid at 18. Ibid at 17. Ibid. -8-  20  liberal welfare state," respectively. Fraser argues both are inadequate, as they tend to create further misrecognition and do not address the "root" cause o f these injustices, namely the normalization and privileged positions that marginalize and exploit those "othered." She advances instead a transformative model o f recognition and redistribution, a socialist/deconstructivist paradigm that restructures relations o f production and recognition while destabilizing group differentiation. Fraser argues that a transformative approach "would change everyone's sense o f self."  21  Not only would those collectivities that had been dominated and  exploited be revalued and included, but also the hierarchical structures o f power that normalize certain identities would be destabilized. For example, Fraser argues a transformative recognition politics would not only aim to be more inclusive o f gay/lesbians, but also deconstruct and destabilize the hetero-homosexual dichotomy. A socialist redistributive paradigm would, she 22  argues, be transformative as it radically restructures the existing capitalist relations o f production. Fraser concludes that a socialist/deconstructivist approach is particularly useful when individuals are situated within wider and more complex social relations where they do not belong to one collectivity, but are constructed through "larger field[s] o f multiple intersecting struggles against multiple, intersecting injustices." A s individuals do not experience components o f their 23  identity independently from other aspects, but instead experience these as complex matrices o f oppression and privilege, a theory of justice must account for these multiple, intersecting relations o f power. For example, contemporary theorists have been concerned with addressing the different injustices First Nation women experience as a result of the intersection o f both racialization and gendered norms. Fraser submits that her transformative socialist/deconstructivist framework better accounts for these plural experiences as "affirmative  20  21  Ibid at 23. Ibid at 24.  -9-  remedies work additively and are often at cross-purposes with one another."  Affirmative  approaches associated with liberal multiculturalism tend to structure legal remedies as a matter o f choice between individuals' different experiences o f injustice, such as between being a woman or First Nation. A transformative socialist/deconstructivist model would therefore be preferable to an affirmative, liberal multiculturalist approach by challenging the underlying structures o f power that give rise to these multiple and intersecting experiences o f injustice.  2.4  Complicating Recognition/Redistribution: Reformulating "The Dilemma" Revisiting her theory of justice in The Tanner Lectures on Human Values in 1998, and in  her more recent article "Rethinking Recognition" in 2000, Fraser develops a "status subordination" framework that treats misrecognition and maldistribution as a matter o f social status. The group-specific identity in this framework is not the site o f political recognition, but 25  rather the individual as part o f multiple group identities i n the larger social matrix. A n y injustice arising from misrecognition limits individuals' ability to participate as full members o f society.  26  Fraser evokes an underlying norm o f participation parity whereby all adults are able to interact as full and equal members o f social and political life. Fraser states that focusing on social status allows for a range o f strategies to be employed to redress subordination within and between 97  group identities as it places the subject within the broader context o f social relations. Theorists such as A x e l Honneth and Charles Taylor characterize recognition as a matter of self-realization, which Fraser argues, assumes everyone has equal right to social esteem. Her theory o f bivalent justice ensures instead, that "everyone has an equal right to pursue social  23 24  2 5  26 11  Ibid at 32. Ibid. Nancy Fraser (2000) 'Rethinking Recognition',  New Left Review 3:107-120 (May/June) at 113.  Ibid. Ibid. - 10-  esteem under fair conditions o f equal opportunity."  She identifies this condition o f mutual  respect as an "intersubjective precondition" o f her participatory n o r m . Fraser argues that not 29  only must an intersubjective precondition be present to realize participation parity, but also an "objective precondition." This requires a fair distribution o f resources to ensure that individuals are sufficiently independent to exercise "voice" through their social and political participation. This objective precondition in turn includes three material prerequisites.  31  30  First, that there is  "freedom from deprivation and from the sort o f dependency that renders one susceptible to exploitation."  Second, that vast inequalities in wealth and income must not be institutionalized  -5-3 to create a distinct group o f "second-class citizens."  Finally, vast differences i n leisure time  must not be institutionalized. She considers same-sex marriage laws as an example o f how her model o f status subordination could be employed to promote equality and parity o f participation. She argues 34  the root o f the injustice excluding legally recognized same-sex marriage is the cultural valorization and normalization o f heterosexuality. A s other theorists have argued, Fraser notes that various strategies are available to redress this injustice, including legalizing same-sex marriage and de-institutionalizing heterosexual marriage. She maintains that redistributive 35  projects would also be required to ensure full parity o f access to these participatory processes where these various strategies are discussed and deployed. Strategies that could be advanced include, for example, recognizing gay/lesbian partners as "spouses" and allowing the same  28  Fraser, Supra note 13 at 27.  29  Ibid at 31. Ibid. Ibid at 54.  30 31  3 2 33  /^/.  Ibid.  Fraser, Supra note 25 at 115. Davina Cooper (2001) 'Like Counting Stars?: Re-Structuring Equality and the Socio-Legal Space of Same-Sex Marriage', p 75-96 in R. Wintemute and M. Andenaes (eds) Legal Recognition ofSame-Sex Partnerships. Oxford: Hart Publishing at 86; Fraser, Supra note 25 at 115. 34 35  - 11 -  access to marriage as heterosexuals and second, that gay/lesbians reject inclusion within marriage laws but gain the same entitlements as married heterosexuals.  37  Utilizing Fraser's affirmative/transformative framework, the first strategy is an affirmative remedy as it entrenches a status quo normalizing the institution o f marriage as the site conferring entitlement, but it can also be seen as transformative as it destabilizes heteronormativity as the basis for these entitlements. The second is both affirmative and transformative. It is affirmative as it preserves heteronormativity as the basis for inclusion within the institution o f marriage, while also affirmative o f gays/lesbians' exclusion from marriage. It is also transformative as it challenges underlying structures o f power rejecting the institution o f marriage as the exclusive site investing privilege. Fraser's approach "allows i n principle for what we might call universalist recognition, and deconstructive recognition, as well as for the affirmative recognition o f difference."  38  She argues that this approach does not favour any  particular strategy, but responds to the needs o f the subordinated subjects so that they can participate fully i n social life. A significant shift from Fraser's initial characterization o f the recognition/redistribution dilemma, is her claim that not all redistribution claims "dedifferentiate" between collectivities and not all recognition claims differentiate. Fraser argues instead that redistributive remedies 39  aim not only to abolish collective identities and thereby be transformative, but also may be affirmative. For example, she cites affirmative action policies that reinforce group differentials while working towards redistributive justice. There may, however, still be other alternatives that Fraser does not consider. Taiaiake Alfred argues that First Nations should reject capitalism and  Fraser, Supra note 25 at 115. The first strategy has recently been successful in Canada with court decisions affirming that gay/lesbians should be included within the legal meaning o f spouse' and 'marriage.' See Barbeau v. British Columbia (Attorney General) 2003 BCCA 406. Fraser, Supra note 25 at 115. This strategy has recently been successful in Canada with court decisions affirming that gay/lesbians should be included within the legal meaning o f spouse' and 'marriage.' See Barbeau v. British Columbia (Attorney General) 2003 BCCA 406. Ibid at 116. 3 6  3 7  38  - 12-  advance instead their own indigenous economies.  This would be transformative, but not i n the  socialist model envisaged by Fraser. In contrast to her initial claim that recognition claims tend to reify group differentials, Fraser suggests there are instead four possible outcomes.  41  These include redressing the practice  of "othering," which can be essentializing and dedifferentialist o f collective identities. This approach works to find points o f commonality between different groups identities. Recognition claims can also work to redress claims o f "sameness" and this tends to be differentiating o f collective identities as attempts to reinforce differences between group identities. Fraser argues that a deconstructivist approach, which dedifferentiates between identities, promotes heterogeneity. Finally, Fraser argues the fourth possible outcome o f recognition claims is that o f locating and contesting the privilege of the dominant group, which tends to be differentialist by working to eradicate the basis o f privilege and marginalization o f collective identities. Fraser argues that the "recognition/redistribution dilemma" is no longer an appropriate characterization o f the political problem she is working to overcome because it overlooks the multiplicity o f tensions that she now acknowledges exist.  42  She concludes that the various  remedies that can be pursued through recognition and redistributive politics: belie the postulate o f a single head-on-conflict between a politics o f recognition, which promotes group differentiation, and a politics o f redistribution, which undermines it. They suggest, on the contrary, a multiplicity o f tensions among a variety o f different claims. Equally important, moreover, logical contradictions between claims are not the source of the political difficulties. Practical problems are rooted, instead, in the imbrication o f economy and culture. 43  Fraser demonstrates that her concern is to examine the interconnections between recognition and redistribution by locating how injustices are filtered through both recognition and redistributive  Fraser, Supra note 13 at 44. Taiaiake Alfred (1999) Peace, Power, Righteousness: An Indigenous Manifesto. Oxford: Oxford University Press at 116. Fraser, Supra note 13 at 46.  Jy  4 0  41 42  Ibid at 45, ft 46.  43  Ibid at 47, emphasis added. -13 -  remedies. In order to examine this problem, her prior emphasis on locating the "root" or "core" o f an injustice is replaced with the desire to examine their points o f convergence and intersection. Subsequently, Fraser notes for example, that the effects of the recognition remedies proposed "do not follow a base-superstructure logic, wherein enhancements i n status automatically translate into improvements in economic position." They instead "pass through a 44  second, economic logic that is connected to, but not reducible to, that o f status." concludes that, "it is necessary.. .to trace the interpenetration o f the two logics."  45  46  Fraser A s part o f this  process, both transformative and affirmative remedies w i l l be necessary. Fraser is also aware, however, that these affirmative/transformative remedies may also have negative consequences that result i n different relations o f oppression and dominance being formed  4 7  In order to  adjudicate between these complex and often contradictory remedies, Fraser suggests that two different trade-off scenarios need to be avoided. First, it is important to avoid recognition remedies that impose unreasonable material costs on the claimants. Rather, a remedy should maintain or enhance the claimants' economic well-being. Second, it is important to avoid those remedies that "combat one form o f misrecognition i n ways that exacerbate another."  48  Rather,  she suggests an appropriate remedy should aim to redress different forms o f misrecognition simultaneously.  2.5  Critical Engagements with Fraser's Theory A significant shortcoming o f Fraser's work is that she fails to consider the implications o f  her theoretical framework for indigenous peoples. I argue that using her approach, First Nations  44 45 46 47 48  Ibid at 50. Ibid. Ibid. Ibid. Ibid at 52. - 14-  can be characterized as collectivities that experience cultural and economic injustice. First Nations in Canada experience injustices arising from both misrecognition and maldistribution and so, using Fraser's model, could be considered "bivalent" collectivities. First Nations people experience injustices that result from cultural domination, misrecognition, disrespect and nonrecognition. Forms o f racism continue to privilege "whiteness" and devalue First Nations as "backward," "primitive" and "deviant" from the dominant norm o f "whiteness." In applying Fraser's initial analysis of the recognition/redistribution dilemma to First Nations, the resulting remedy for misrecognition would typically be the valorization of First Nations.  49  The recognition  and promotion o f Aboriginal rights through section 35(1) o f the Canadian Constitution Act [1982] is an example o f such an attempt to redress injustices of misrecognition and disrespect through the promotion and positive affirmation o f Aboriginal peoples and their rights. First Nations, however, also experience injustices arising from maldistribution. A s I argue later, the Canadian political economy depends on the exploitation of First Nations and their lands. Further, the division o f labour in Canada is founded on the marginalization o f First Nations from (as Fraser observes in relation to "race") "higher-paid, higher-status, white-collar, professional, technical, and managerial occupations held disproportionately by 'whites'."  50  A politics of  redistribution aims, Fraser would argue, to abolish "First Nations" as a category of differentiation between those who are economically privileged and those who are marginalized. A redistributive project would therefore also be essential to promote justice. Utilizing Fraser's characterization o f the relationship between recognition/redistribution, First Nations can be seen to be bivalent collectivities, experiencing two distinct forms o f injustice requiring two distinct forms o f remedy: first, positive recognition o f their identities as First Nations peoples; and  Ibid &t 22. Fraser, Supra note 1 at 21. - 15 -  second, equitable redistribution o f wealth. The former reinforces First Nations as a differentiated social group and the latter tends to abolish group differentiation. Theorists have critiqued Fraser's initial characterization o f the relationship between recognition and redistribution, arguing that she perpetuates a false dichotomy causing her to find a tension where in fact none exists. Iris Marion Young notes that this dichotomy is premised 51  upon the assumption that recognition is an end i n itself, and does not consider how some groups assert cultural recognition as a means to economic redistribution. That is, collectivities have 52  worked for greater recognition not only as an important and necessary objective in itself, but to achieve redistributive goals. Fraser agrees that the recognition/redistribution continuum is an artificial theoretical device. It serves only as a useful analytical tool to probe a particular political problem: namely, how a theory o f justice can overcome the apparent contradiction between a politics o f *  •  53  •  recognition and redistribution.  Young argues, however, that the solution Fraser proposes is  flawed as she constructs an overly simplistic dualism that ignores the many different relations o f dominance and oppression. Young insists that as a result o f complex relations o f power there 54  are diverse experiences o f oppression both between and within what Fraser has labelled "recognition" and "redistribution." Young argues further that these are often mutually reinforcing and so, cannot be overlooked by a theory o f justice. Fraser's recognition/redistribution continuum is a useful tool, but as a linear continuum dichotomizing recognition and redistribution it is problematic as it assumes all forms o f oppression originate from injustices arising from either recognition or redistribution. This Iris Marion Young (1997) 'Unruly Categories: A Critique of Nancy Fraser's Dual Systems Theory', New Left Review 222:147-60 (March/April) at 158. Ibid at 148. Fraser, Supra note 1 at 12. Young, Supra note 51 at 151. Young argues this dualism masks the multiple forms of oppression individuals experience, for example, the five "faces" of oppression she identifies, which are: exploitation, marginalization, powerlessness, cultural imperialism, and violence.  5 1  52  5 3  5 4  - 16-  critique does not, however, invalidate Fraser's use o f recognition/redistribution: both Fraser and Young's frameworks should co-exist, but neither should attempt to conclusively define the origins o f all oppression and experiences o f injustice as they risk essentializing and universalizing their own understandings o f power differentials. For example, as Sherene Razack observes, locating the origin o f all women's oppression as patriarchy undermines a complex understanding o f how women in some cultures value their social location and the agency they have within these power structures. She states that, "imperialism demands that we understand women either as victims or agents, as saviours or as saved, but not as complicated subjects acting within several hegemonic systems." A critical theory o f recognition should work to understand 55  how differently situated cultures invest meaning i n different systems o f power without equating all relations o f subordination to oppressive power.  56  Furthermore, as Anne Phillips observes, Fraser's approach is still useful as " i n the political division o f labour, no one can hope to do everything at once, but i f the choices we make block out other issues, it does not help just to say that everything is interconnected."  57  Young's  insistence that all injustices be accounted for because they are interdependent and mutually reinforcing does not in itself assist in developing an approach that can begin to address the sometimes contradictory interplay between remedies o f recognition and redistribution. A s Phillips observes, the importance o f Fraser's approach is that it "enables us to think more CO  precisely about political dilemmas."  Fraser's concern is that without a clear normative  framework, all differences w i l l be affirmed as valuable. In adjudicating between claims for recognition, the broader matrix o f power needs to be considered, so that it is then possible to contest those exploitative and dominating relations that are deemed unjust. Phillips suggests that Sherene Razack (2000)'Your Place or Mine? Transnational Feminist Collaboration' in A. Calliste and G. Dei (eds) Anti-Racist Feminism, Fernwood Publishing 39-53 at 50. Bruce Baum 'Feminist Politics of Recognition' Signs (Forthcoming in 2003). Anne Phillips (July/August 1997) 'From Inequality to Difference: A Severe Case of Displacement', New Left Review 224: 143-53 at 150. 5 5  5 6  5 7  - 17-  Fraser's model could be more dynamically interpreted as a matrix o f interlocking experiences o f power so that the concern motivating Fraser's framework, that o f strategic choice, is not overlooked while also not ignoring the multiple tensions that exist.  59  There is, however, a significant theoretical shortcoming in Fraser's approach that constrains the recognition o f the multiplicity o f struggles that occur. That is, Fraser does not sufficiently address how her transformative framework addresses intersectionality, asserting only that affirmative approaches are inadequate.  60  Fraser is concerned that identity politics has  displaced economic injustices by assuming that processes o f recognition w i l l also fix the maldistribution o f wealth.  61  She assumes, however, that because class is primarily a matter o f  redistributive justice, that economic redistribution w i l l remedy the misrecognition o f the working class. Fraser not only fails to recognize the gendered and racialized dimension o f class, but also she seems to displace the politics o f recognition by privileging projects for economic justice. Judith Butler argues further that Fraser's characterization o f sexuality as "merely cultural," and injustices gay/lesbians experience as a "fairly straightforward" matter o f misrecognition and disrespect, recentres economic concerns to the exclusion o f "cultural" matters despite Fraser's claim that both are important as they are interrelated and injustices arising from both need to be remedied. Fraser does not address the complex and multifarious struggles both between and 62  within recognition and redistributive claims, but perpetuates her initial construction o f the recognition/redistribution dilemma with a new emphasis on the economic. In Fraser's rejoinder to Butler, she re-states her position that the economic and cultural are equally important; however, she insists that some injustices are located at different points o f the continuum and some are more embedded in matters o f recognition or redistribution.  58  Ibid.  59  Ibidat 148. Young, Supra note 51 at 158. Fraser, Supra note 2 at 288. Judith Butler (1997) 'Merely Cultural', New Left Review 227:33-44 at 268.  60 61 62  - 18-  Fraser shifts, however, in her characterization o f class and sexuality, perhaps in response to Butler's critique, or to her own discomfort i n assuming there to be "pure collectivities." She states: virtually all real-world oppressed collectivities are bivalent...To be sure, not all oppressed collectivities are bivalent in the same way, nor to the same degree. Some axes o f oppression, such as class, tilt more heavily toward the distribution end o f the spectrum; others, such as sexuality, incline more to the recognition end; while still others, such as gender and "race", cluster closer to the center.. .As a practical matter, therefore, overcoming injustice in virtually every case requires both redistribution and recognition. This approach represents a more complex appreciation o f the interdependence o f recognition and redistribution for all collectivities, but does still not appear to fully account for the experience o f intersectionality. There is an assumption that the injustices experienced by collectivities are severable and that it is possible to locate the root cause o f injustices along a sliding scale between misrecognition and maldistribution. Butler challenges Fraser's tactical use o f conceptualizing injustice as arising from either recognition or redistribution as it "presumes that the distinction between material and cultural life is a stable one." Butler attempts to destabilize this assumption by demonstrating that 64  sexuality is tied to the mode o f production and the "economic."  65  She argues that the political  economy o f Western liberal capitalist societies reinforces masculinist privilege and heteronormative assumptions. Butler asserts that "to the extent that naturalized sexes function to secure the heterosexual dyad as the holy structure o f sexuality, they continue to underwrite kinship, legal and economic entitlement, and those practices that delimit what w i l l be a socially recognizable person." Heteronormative assumptions structure the political economy by 66  defining "citizen" in accordance with specific legal and economic entitlements based upon their sexuality, for example, in tax and property law and this is a historically locatable experience  63 6 4 65  66  Fraser, Supra note 13 at 22. Butler, Supra note 62 at 267-268. Ibid at 272. Ibid at 276. - 19-  emerging with the industrialization o f liberal economies and society. Butler argues that Fraser's failure to address this relationship ultimately undermines her objective, to find a theory o f justice that addresses both types o f injustice, as her false binary perpetuates assumptions that the cultural and economic are distinct. Injustices cannot be characterized as primarily arising from either cultural misrecognition or economic maldistribution and Butler's discussion o f sexual politics challenges this very distinction. In her response, Fraser maintains, however, that the recognition/redistribution distinction is an important analytical device to overcome the current impasse that has emerged between materialist feminist concerns with economic injustice, and "multiculturalist" concerns with recognition as both must be addressed in working towards bivalent justice.  67  Susan Boyd, in an article that critically discusses this debate between Butler and Fraser, finds that "neither Butler nor Fraser develops an adequate dialectical analysis o f the ways in which discursive challenges (for example, to the heternormativity o f the family) relate to resource distribution in late capitalist societies."  Boyd argues that a critical analysis o f the  interplay between recognition and redistribution must include an examination o f the various tactics employed as part o f the neo-liberalism that increasingly defines Western capitalist economies. While Fraser does not specifically consider these trends i n her own work, such an analysis is consistent with her reformulation o f the relationship between recognition and redistribution through her revised model o f bivalent justice. Recent materialist feminist literature that examines the competing and sometimes contradictory logic o f privatization is therefore useful i n exploring the discursive practices that structure the highly contested terrain where claims for recognition and redistributive justice take place.  67 68  Fraser, Supra note 13 at 24. Boyd, Supra note 7 at 378. 20-  2.6  Problematizing Fraser's Bivalent Justice: Materialist Feminist Insights A s part o f a materialist feminist project that critically engages with neo-liberalism,  Brenda Cossman and Judy Fudge argue that trends o f privatization are filtered through discursive practices. These discursive practices have important material effects as they serve to justify and 69  legitimate particular policy positions being taken that inform current social and political relations. While privatization initially referred primarily to the sale o f government assets, it has increasingly come to also represent the contracting out o f government services and the fundamental restructuring o f government to replicate market logic.  70  Cossman and Fudge define  privatization further as including: deregulation o f some sectors o f economic activity, the marketization (and reregulation) o f others, and the selling off o f government operations with the goal o f increasing opportunities for private profit making, as well as the commercialization o f government services. It also involves a fundamental retrenchment o f the state i n social reproduction, leaving families and charities to shoulder a greater part o f the burden in caring for people. 71  They argue that trends o f privatization have led to a reconstruction o f the public/private divide. Like the recognition/redistribution binary, the public/private divide is not stable. A s Susan Boyd notes, it is an "ideological marker that shifts i n relation to the role o f the state at different historical moments." The indeterminacy o f this divide means that it is constantly being 72  renegotiated. For example, throughout many Western liberal societies after the Second W o r l d War and as a result o f Keynesian economics, the state assumed responsibility to promote a higher standard o f living for citizens while facilitating the accumulation o f wealth.  W i t h the  Judy Fudge and Brenda Cossman (2002) 'Introduction: Privatization, Law, and the Challenge to Feminism' p. 337 in B. Cossman and J. Fudge (eds) Privatization, Law and the Challenge to Feminism. Toronto: University of Toronto Press. 69  70  71  Ibidat 4. Ibid at 18.  Susan Boyd (1997) 'Challenging the Public/Private Divide: An Overview' p.3-33 in S. Boyd (ed.) Challenging the Public/Private Divide. Toronto: University of Toronto Press at 4. Fudge and Cossman, Supra note 69 at 6. 72  73  -21 -  current dominance of neo-liberal market logic both domestically and internationally, such responsibility is increasingly argued to belong in the private sphere.  74  Materialist feminists have analysed the gendered dimensions o f privatization to expose the emerging problems posed by such trends. For example, as part o f this assumption that the welfare o f the citizenry is best delegated to the private sphere, "the family" is being further entrenched as the primary societal unit. It is increasingly burdened with the responsibility for the costs o f social reproduction and it is typically women who assume this responsibility within the family unit.  75  Similar analysis is needed, however, to consider the racialized implications of  these trends o f privatization for First Nations. I explore five neo-liberal trends o f privatization in this thesis. The first trend is the valorization o f self-sufficiency. The provincial government utilizes this concept o f selfsufficiency to negotiate a limited model o f self-government that creates economic independence for First Nations through enhanced market activity, not as a model that creates independence from state structures. The second and third trends I consider are reregulation and reprivatization. These trends are intimately connected and mutually reinforcing. I therefore consider their effects together. Reregulation is the trend through which the state legitimates its ongoing role as a coercive site that both directly and indirectly governs citizens. Reprivatization represents the relocation o f public assets into the private realm and the naturalization o f this relocation as 1ft  inevitable and desirable.  The fourth trend I identify is indigenization, which I argue is the  process o f racializing First Nations' identities through the logic o f privatization. Finally, the fifth trend is the discourse o f risk management. The B C Treaty Commission process is an important and complex site where many of these theoretical debates and tensions are currently taking place. Within the treaty process the Ibid at 4. Ibid at 4; Martha Fineman (2000) 'Cracking the Foundational Myths: Independence, Autonomy, and SelfSufficiency' American University Journal of Gender Social Policy and the Law 8:13-29.  74  75  -22-  federal, provincial and First Nations' governments are attempting to negotiate more just relations by realizing treaties that both recognize First Nations' rights and redistribute wealth. The discursive practices through which remedies are appropriated have, however, proven problematic as not one treaty has been negotiated to date. Exploring Fraser's reconceptualization o f recognition and redistribution, as well as her theory o f bivalent justice through an analysis of the B C Treaty Commission process, reveals both the strengths and weaknesses o f her framework while simultaneously contesting the legitimacy o f the provincial government's negotiating mandate.  2.7  The Problem of Incommensurable Claims for Recognition A second limitation to Fraser's theory o f bivalent justice is the problem o f  incommensurable claims for recognition. This dilemma is particularly relevant to First Nations' politics i n B C as there is a basic tension between those First Nations who reject a recognition politics based on social equality and full participatory rights as Canadian citizens and those First Nations who employ the Constitution and state institutions as a means to gain greater recognition, including to contest the legitimacy o f the state. Contesting the legitimacy o f the basic structures o f society from within those structures may be problematic for those First Nations that reject the state's assertions o f sovereignty over them. There is an incommensurability that precludes some First Nations' willingness to use these structures o f recognition and redistribution to address the injustices they experience. Challenging the legitimacy o f the state through, for example, legal mechanisms, requires an acceptance that the state has jurisdictional power at all, which some First Nations refute. Theorists have offered  Fudge and Cossman, Supra note 69 at 4. -23 -  useful insights into this irreconcilability, proposing that perhaps it should not be "resolved," but that these differences are an inevitable and necessary practice o f freedom.  77  James Tully suggests that it is more valuable "to ensure that eliminable, agonic democratic games over recognition and distribution, with their rival theories o f distribution and recognition, can be played freely, with a minimum of domination."  L i k e Fraser's underlying  norm o f participatory parity, Tully concludes that practices o f agonistic freedom can be enhanced through the democratization o f a participatory politics. Similar to Fraser's status subordination model, Davina Cooper proposes that different strategies be pursued, but that these should all work to contest overarching hegemonic structures of power, such as patriarchy and heteronomativity. A major limitation to both Cooper and 79  Fraser's approach is they assume individuals want to be full participants i n society and transform their social location or that this is a matter o f choice} Defining the origin o f individual's 0  oppression as that which inhibits individuals' ability to be full members o f society is problematic as it first, masks their agency and their own systems o f meaning and second, assumes it is possible to exercise choice to withdraw citizenship which may be crucial for some collectivities, such as First Nations, in order to exercise their freedom. Joan Williams suggests that " a true understanding o f incommensurability requires us to accept with serenity that people o f good faith often w i l l see things differently. The key question is how we avoid letting that undermine our Q 1  ability to work together."  Therefore, it is necessary to examine how recognition claims and  transformative strategies may "empower" while being problematic and constraining.  78 79 80 81  James Tully (2000) 'Struggles over Recognition and Distribution' Constellations 7(4): 469-482. Ibid at 469, emphasis added. Cooper, Supra note 35 at 79. Baum, Supra note 56. Joan Williams (2001) 'From Difference to Dominance to Domesticity: Care as Work, Gender as Tradition' 76  Chicago-Kent Law Review 1441-93 at 1447.  -24-  Donna Haraway emphasizes the importance o f "vision," o f questioning the power inherent i n seeing and in making knowledge claims.  For Haraway, this embodied vision rejects  the "god-trick," that is, making claims to see everything from everywhere, which she argues, is an illusion.  Haraway encourages the production o f an objective knowledge, but this objectivity  is based upon occupying a limited location and being committed to constantly reassessing that location through self-reflexivity and openness to different and sometimes competing ways o f seeing. Joan Williams reminds us that situated knowledge requires us to locate ourselves, not just other peoples' knowledge claims.  Patchen Markell suggests therefore, that perhaps the more  pressing question is, "how do different political strategies and forms open or close down possibilities for citizens to acknowledge and contest the injustices that otherwise emancipatory forms o f recognition also bring with them?"  It is therefore important to consider how  "emancipatory" projects and strategies that cause "transformations" both enable and constrain individuals and collectivities, restructuring different relations o f domination and marginalization through both recognition and redistribution politics. This thesis attempts to embody this practice o f self-reflexivity by considering how Fraser's model o f bivalent justice is both enabling and constraining as well as considering both the limits and the possibilities for realizing justice through the B C Treaty Commission process. Fraser's reconceptualization o f recognition and redistribution as interdependent provides insights into the tensions between and within claims for justice. Her approach is also, however, problematic as she potentially overlooks some o f the more subtle and nuanced tensions that emerge from trends o f privatization and that ultimately inhibit the implementation o f remedies that work towards the realization o f bivalent justice.  Donna Haraway (1991) 'Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspectives' p. 183-201 in Donna Haraway Simians, Cyborgs, and Women, New York: Routledge at 192.  82  83  Ibid at 191.  84  Williams, Supra note 81 at 1489. -25 -  Chapter Outline Nancy Fraser constructs a useful theoretical framework that emphasizes the politics o f recognition and redistribution's interdependence and points o f convergence, while not collapsing one into the other. While her initial formulation o f the recognition/redistribution dilemma is problematic as it assumes a single tension exists between these two spheres o f justice, the reformulation o f her theory that takes as its primary concern individuals' status subordination overcomes some o f these limitations. Fraser's approach accounts for the diverse remedies available both for a politics o f recognition and redistribution, illustrating how, at times, these remedies can be in conflict. Further, the normative framework she advances addresses important issues o f strategic choice. While Fraser's model should not assume to conclusively define all experiences o f injustice, her approach is valuable because she is concerned that, the pursuit o f particular recognition claims may have important redistributive consequences. In working towards social justice, both must be taken into account. There remains, however, an important limitation to her approach as Fraser has not considered the tensions caused by the trends o f privatization advanced as part o f neo-liberalism. These trends o f privatization represent a significant challenge to her framework as they potentially undermine the implementation o f remedies that would work towards bivalent justice. Another limitation to Fraser's model o f recognition/redistribution is the applicability o f her framework for some First Nations who reject the state's legitimacy to determine their status as citizens. The state's exclusive jurisdictional authority to determine its own legitimacy undermines this choice to withdraw or contest citizenship.  Patchen Markell (2000) 'The Recognition of Politics: A Comment on Emcke and Tully' Constellations 7(4): 498506 at 503.  85  -26-  The insights that can be gained from applying Fraser's theory of bivalent justice to the B C Treaty Commission process w i l l be explored in the following chapters. I consider Fraser's theory o f justice specifically in relation to the provincial Liberal government's treaty mandate that precludes the negotiation of compensation for First Nations and negotiates self-government as a form o f local government. Chapter two considers the usefulness o f Fraser's approach and the limitations o f the provincial Liberal government's mandate that does not negotiate compensation by examining how reconceptualizing recognition and redistribution as interdependent exposes the dominant discourse o f dependency. I critically assess the implications o f applying Fraser's theory o f bivalent justice for negotiating compensation as part of the treaty process. The third chapter critiques the provincial Liberal government's negotiating mandate that recognizes selfgovernment for First Nations as a form o f local government. I explore whether negotiating selfgovernment as a type o f municipality is consistent with Fraser's theory o f bivalent justice. I consider two additional challenges to the provincial Liberal government's mandate that arise from an understanding o f self-government as an inherent right. Further, I analyze how the government has appropriated the progressive remedy of self-government for regressive ends through the logic o f privatization. I consider the implications o f this appropriation o f progressive remedies for Fraser's theory o f bivalent justice. Chapter four is a conclusion that discusses the main findings of this thesis.  -27-  Chapter Two  Compensating First Nations: Remedying Injustices of Exploitation and Misrecognition  Introduction This chapter both considers the usefulness o f Fraser's theory o f bivalent justice and critically assesses the provincial government's mandate for negotiating treaties i n the B C Treaty Commission process that refuses to negotiate compensation with First Nations. The provincial government, together with the federal government, are currently involved in a process to negotiate with First Nations and later implement treaties in British Columbia. Despite the federal government's official policy that compensation should be paid to redress the wrongful acquisition o f Aboriginal lands, compensation has been off the negotiating table i n B C . The provincial government offers instead money transfers that simply allocate resources, but that do not recognize this as a remedy to redress historical and ongoing injustices o f misrecognition and maldistribution that First Nations experience. That is, proposing compensation as a remedy would entail not only a transfer o f money or resources, but also an understanding that the basis for this is an admission o f a wrong and an attempt to remedy it through redistribution of, for example, money, resources and/or jurisdictional authority. In exploring the implications o f Fraser's approach for negotiating compensation in the treaty process, this chapter is divided into two parts. In the first part I examine the existing treaty process. I consider the background within which it has emerged and locate some o f the problems and tensions that exist. The second part o f this chapter considers the current provincial Liberal government's mandate i n the B C Treaty Commission process that excludes compensation from being negotiated with First Nations. Drawing on Fraser's arguments, I trace the characterization o f the politics o f recognition and redistribution as distinct and unrelated within the treaty process. I also use her conceptualization o f recognition/redistribution as interdependent and her theory o f -28-  bivalent justice to explore whether the provincial government's refusal to negotiate compensation works towards bivalent justice.  Part One: Compensation in the Treaty Process 1.1  The BC Treaty Commission Process Unlike other provinces in Canada, and with the exception of a few treaties signed on  Vancouver Island and the north-east o f B C , no treaties were signed historically with First Nations in British Columbia. Consequently, many o f the Aboriginal rights cases handed down by the Supreme Court o f Canada have involved First Nations in B C . For example, the  Calder  decision, the first legal precedent set by the Supreme Court recognizing Aboriginal title i n 1973, 1  involved the Nisga'a Nation o f the Nass River Valley in north-western B C . Other precedentsetting cases, such as  Delgamuukw, Sparrow, Guerin and Van der Peet all involved claims 2  3  4  5  for the recognition o f Aboriginal rights in British Columbia. Following the  Calder decision, despite the Nisga'a having lost the case on a technical  point o f law, the federal government entered into bilateral negotiations with the Nisga'a Nation. A process o f negotiation was increasingly seen as essential to avoid costly legal disputes. Both government and First Nations also saw it as necessary in order to achieve certainty with respect to land and resource development throughout the province. The B C government was, at that time, not party to these negotiations as only the federal government has constitutional authority to enter into treaties with First Nations.  6  1  Colder v. A.G.B.C. [1973] S.C.R. 313.  2  Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010.  3  R. v. Sparrow [1990] 1 S.C.R. 1075. Guerin v. The Queen [1984] 2 S.C.R. 335. R. v. Van der Peet [1996] 2 S.C.R. 451. Pursuant to section 91(24) of the Constitution Act, 1867.  4 5 6  -29-  The B C Claims Task Force was formed in 1990 to deliberate on how a wider process o f negotiation might be structured between the federal and provincial government and First Nations in British Columbia. The resulting B C Treaty Commission Agreement was signed in 1992 by the federal and provincial governments, as well as the First Nations Summit o f B C , representing those First Nations willing to negotiate treaties with the Crown. It was agreed that the B C Treaty Commission process would be a tripartite arrangement between the federal, provincial and First Nations' governments. The British Columbia Treaty Commission was created as a result in 1993. A s an independent body to the treaty process, its role is to facilitate negotiations, provide funding to First Nations and raise public awareness o f the treaty process. The B C Treaty Commission process has, to date, been unable to finalize any treaties. Negotiated outside the process, the Nisga'a Treaty or the "Nisga'a Final Agreement," has been the only treaty successfully signed in British Columbia's recent history. It was negotiated outside o f the treaty process, having been initiated prior to the Treaty Commission's inception. The Nisga'a Treaty was negotiated and finalized during the N e w Democratic Party's term in office and came into effect on M a y 11, 2000. It represents the final settlement o f Nisga'a rights and Q  title in perpetuity under s. 35(1) o f the Constitution Act, 1982. Approximately 40% of British Columbia's First Nations are not represented in the B C Treaty Commission process. Some First Nations have criticized the government's refusal to 9  negotiate compensation, but some First Nations also reject the provincial government's 10  involvement i n negotiating treaties and insist that the federal government is the only appropriate  The funding arrangement established to ensure that First Nations can participate more equitably with the Crown in negotiations is that for every $100, 80% is a loan from the federal government, 12% is a contribution from the federal government and 8% is a contribution from British Columbia. Section 35(1) of the Constitution Act, 1982 states that 'the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.' Ministry of Attorney General Treaty Negotiations Office, 'Present Status of the BCTC Process' <available at:http://wvvvv.gov.bc.ca/tno/treatv/status.htni#Qutside>[accessed Februaryl2,2003]. First Nations Summit, 'First Nations Summit Statement on the Treaty Negotiation Process and Other Issues', Presentation to Premier Campbell and Members of the British Columbia Cabinet, September 16, 2002. 7  8  10  -30-  level o f government that can enter into treaties with Aboriginal peoples as sovereign nations.  11  There has been important work written on the B C Treaty Commission process by First Nation academics identifying its role in perpetuating a colonial relationship between First Nations and the Crown. They suggest the B C Treaty Commission process is simply another example o f the Crown defining the conditions under which their relationship with First Nations w i l l be "accommodated." These critiques are important, but many First Nations who reject the B C Treaty Commission process do not reject the potential for treaties to decolonize First Nations-Crown relations. It is the foundational principles that are flawed, they argue. Rather than develop a treaty process that is premised upon the interdependence o f First Nations-Crown relations that 13  formalizes principles o f mutual respect, consent and recognition,  *  some First Nations argue that  any political dialogue should be based on First Nations' independence. For example, Taiaiake Alfred argues that political space should be based upon First Nations being recognized as sovereign nations. He states that "state-sponsored processes such as the one presently underway in B C can never offer an honourable resolution so long as they refuse to demonstrate respect for the nationhood o f our peoples." This tension reflects the broader issue o f how to deal with 14  incommensurable claims for justice. Alfred's insistence that the state must approach First Nations on the basis of recognizing their status as sovereign nations problematizes the approach o f those First Nations who assert remedies are needed from within the state structures in order to destabilize colonial relations. This is the position of the Union of BC Indian Chiefs who represent many of the First Nations boycotting the BC Treaty Commission process. See Taiaiake Alfred (1999) Peace, Power, Righteousness: An Indigenous Manifesto. Oxford: Oxford University 11  12  Press; June McCue (1998) Treaty Making From An Indigenous Perspective: A Ned 'u 'ten-Canadian Treaty Model,  L.L.M. Thesis, Faculty of Law, University of British Columbia; Chief Saul Terry, 'President's Address: Decolonization' UBCIC 26* Annual General Assembly (November, 22-23 & 24, 1994). See James Tully (1999) Strange Multiplicity: Constitutionalism in an Age of Diversity Cambridge: Cambridge University Press. Taiaiake Alfred (1999) Peace, Power, Righteousness: An Indigenous Manifesto. Oxford: Oxford University Press at 128. 13  14  -31 -  In addition to First Nations' critiques o f the B C Treaty Commission process, the Liberal government argue that the N D P had caused the current stalemate i n the treaty process by negotiating from a broad mandate. A s part o f their election platform i n 2000, the provincial 15  Liberals, led by Gordon Campbell, campaigned to get the B C Treaty Commission process "back on track."  16  This included a commitment to hold a referendum to create a more transparent and  democratically accountable process. After being elected, the Campbell government held the referendum that asked the public to define the scope o f the provincial government's negotiating mandate. The negotiating principles underlying each o f the eight referendum questions were not newly established by the Liberal party, but instead were a continuation o f the N D P ' s negotiation policy that had been in place since the formation o f the B C Treaty Commission process.  17  Thus, the provincial N D P , when they were i n power, had committed at the start o f the process to "negotiate treaties which maintain or enhance basic social program standards, as well 18  as comparable justice systems and taxation levels for all British Columbians."  They had also  sought to ensure that these agreements would be affordable to B C taxpayers and avoid disruption to interests held i n Crown land. They maintained that compensation should be paid when infringements occurred to commercial interests. Interestingly, the N D P government was, at the same time, unwilling to negotiation compensation for those Aboriginal rights that had been infringed. Private property was not to be negotiated and province-wide standards o f resource management and environmental protection were to continue to apply. Access to land and resources for hunting, fishing and recreational use were to be guaranteed. Jurisdictional certainty between First Nations and municipalities was to be clear. Finally, the tax-exempt status o f First Cindy Harnett 'B.C to move on stalled treaty issues', Victoria Times-Colonist (July 6, 2002). British Columbia Liberal Party, 'A New Era for First Nations' Ovailable at: http://wvvvv.bcliberals.com/policy7> [ May 23, 2003]. 1 am grateful to Professor Paul Tennant (personal communication, 2002) for insisting on this point. Grant Thornton Management Consultants, 'Financial and economic analysis of Treaty Settlements in British Columbia' (March 16, 1999) <available at http://www.gov.bc.ca/tno/rpts/thomton.htm> [accessed May 23, 2003] at 15  16  17  18  5.  -32-  Nations was to be phased out. A l l these principles are reflected in the eight questions posed to British Columbians through the Liberal government's referendum and each question was answered i n the affirmative by the majority o f respondents. The continuity o f these principles 19  through both the Liberal and N D P mandates demonstrate that criticism exclusively targeting the Liberal government for its unjust negotiating mandate risks overlooking the persistent imbalances o f power that characterize the colonial condition in B C , regardless o f the political party in power. A t the same time, however, the Liberal government has introduced a range o f new policies that have had a profound effect on the social and economic structures o f B C . This represents a significant philosophical shift to the Right and has distinct implications for First Nations' politics. A s I explore in the next part of this chapter, Fraser's work on recognition and redistribution demonstrates that this shift has implications not only for the "economic" goals o f First Nations, but also the politics of recognition. The Liberal government has been committed to revitalizing the treaty process as the process has been struggling to implement treaties that articulate a commitment to a mutually acceptable relationship. Three First Nations are now in the fourth of the six-stage process, reaching an Agreement in Principle (AIP) with the provincial and federal governments. They must still advance, however, through the final two stages.  That is, they must negotiate a final  agreement or treaty and then implement it. The Lhedli T'enneh's A I P has only very recently been signed and they have now entered the fifth stage o f negotiating a final treaty settlement.  It is important to note, however, that only 35.83% of total registered voters' ballots in BC were counted representing 763,480 voters. After an active and well-publicised boycott by both First Nation and non-First Nations people that included burning ballots and returning them with marks of protest, over 26,700 ballots were officially excluded from the count and deemed "spoiled." Elections BC, 'Report of the Chief Electoral Officer on the Treaty Negotiations Referendum', (September 9, 2002) <available at: http://www.elections.bc.ca/referendum/11nalresults.pdf> [accessed September 13, 2002]. The five First Nations that have reached AIPs have not all formalized these agreements. The Sliammon, Maanulth, and Tsawwasen First Nations have reached a draft AIP. The Snuneymaxw First Nation have also concluded a draft AIP, but this is not yet publicly available and the Lhedli T'enneh First Nation AIP was formally signed on July 26, 2003. 19  2 0  -33 -  Each step i n the process must be fully completed before moving on to the next. Excluded from these agreements, as I explore later, is the issue o f compensation for First Nations. Neither the federal nor provincial government currently negotiates compensation as part o f the B C Treaty Commission process, despite the B C Treaty Commission Task Force finding that this "constitutes a serious failure o f the commitment on the part o f Canada and B C "  2 1  and  several court decisions affirming that compensation is required when Aboriginal rights have been infringed. The federal and provincial government are willing, however, to include monetary 22  settlements or "capital transfers" because they argue that these focus on future benefits and do not represent admissions o f past wrongs.  Both levels o f government are reluctant to assume  responsibility for the historical and ongoing injustices First Nations have experienced. It is feared that to do so would set a financially unsustainable precedent i n negotiating treaties with the 53 First Nations currently participating i n the B C Treaty Commission process. This represents both a failure o f recognition and redistributive politics i n British Columbia. The context within which the B C Treaty Commission process emerged and the dynamics that have resulted between and within First Nations, federal and provincial governments have given rise to a particular process o f treaty-making i n B C . This process represents one model o f negotiating treaties with First Nations. A n array o f different strategies could be advanced to transform the existing approach. Needing further analysis, therefore, are the strategies that would help to alter the existing process so that it could realize more just relations between First Nations and the Crown. Fraser's work on recognition and redistribution and her theory o f bivalent justice are useful to consider i n this context.  British Columbia Treaty Commission (2001) Looking Forward, Looking Back: A Review of the BC Treaty Process, Annual Report at 8. Delgamuukw v. British Columbia, [1997] 3 S.C.R 1010 at para 169; R. v. Sparrow [1990] 1 S.C.R. 1075 at para 1119; R. v. Gladstone [1996] 2 S.C.R. 723. Mark Stevenson 'A Commentary on the British Columbia Treaty Process and the Federal Comprehensive Claims Policy', 13* Annual Conference of the Indigenous Bar Association Building Treaties and Restoring Relationships, (October 19-21, 2001) [Unpublished Manuscript] at 18. 21  22  23  -34-  In the next section o f this chapter I apply Fraser's theory o f bivalent justice to the current provincial government's mandate that excludes compensation from treaty negotiations. Such an analysis represents a very specific application o f Fraser's work. (In the next chapter I apply her framework to consider the provincial government's mandate to negotiate self-government.) Her theory could be applied more broadly to consider other aspects of the B C Treaty Commission process. This could include an examination o f the Liberal government's treaty mandate to phase out the tax-exempt status o f some First Nations. Her model o f bivalent justice could further be employed to critique the form and structure o f the process, such as the rigid linearity o f the process. While these projects would offer useful insights into how to further realize justice through the treaty process, they are beyond the scope o f this thesis. Rather, I explore how Fraser's work on recognition and redistribution can be used to examine whether the provincial government's failure to negotiate compensation promotes the type o f justice Fraser proposes, thereby assessing the usefulness o f her framework. I also aim to explore how Fraser's work on recognition and redistribution can be used to examine the appropriateness o f the provincial Liberal government's refusal to negotiate compensation with First Nations.  Part Two: Compensation and The Provincial Liberal Government's Treaty Mandate  2.1  Introduction Fraser's framework can be applied to the mandate o f the provincial Liberal government  that excludes compensation from being negotiated with First Nations to reveal the Liberal government's problematic characterization o f the relationship between the politics o f recognition and redistribution. While the provincial government appears to be committed to recognising First Nations' rights and redistributing wealth through a treaty process, the politics o f recognition and  -35 -  redistribution continue to be characterized as distinct and unrelated. This understanding o f recognition and redistribution has undermined the capacity for the treaty process to redress these injustices. I identify two reasons for this: first, that the Liberal government has attempted to address what they perceive as the effects o f these injustices and not their root causes; and second, that the Liberal government fails to recognize the forms o f misrecognition and maldistribution that First Nations experience that are continued through the treaty process. These ongoing forms o f misrecognition and exploitation are masked by the dominant discourse o f dependency that characterizes First Nations as reliant upon the Crown and these discourses also justify the exclusion o f compensation from the treaty process. I employ Fraser's model o f status subordination to contest the validity o f this dominant discourse o f dependency. Finally, I consider whether compensation as a remedy that redresses both the injustices o f misrecognition and maldistribution, promotes Fraser's model o f bivalent justice.  2.2  Separating Recognition and Redistribution through the Treaty Process B y entering into the treaty process, the Liberal government is committed to redressing  those cultural injustices that resulted in the misrecognition o f First Nations. The provincial government has also been willing to redistribute resources so that First Nations can participate more fully in the liberal capitalist economy. That is, the government acknowledges that remedies that address injustices arising from both recognition and redistribution are necessary. A s I explore later i n this section, they w i l l not, however, critically examine the ways i n which these are interrelated and mutually imbricated. Using Fraser's work on recognition and redistribution, it is clear that the provincial government must not only recognize that both recognition and redistributive remedies are necessary, but that because these remedies are interrelated, that an understanding o f the ways in which these intersect w i l l also be necessary to promote justice. A n  -36-  approach that only deals with each injustice independently results in the perpetuation o f experiences o f misrecognition and maldistribution. The current treaty process attempts to redress injustices o f misrecognition and maldistribution by reallocating resources to First Nations and recognizing Aboriginal rights. For example, the provincial government recognises First Nations' rights to hunt on Aboriginal lands for domestic purposes. They also are committed through the treaty process to recognising Aboriginal title. It is possible to locate Fraser's initial formulation o f the recognition/redistribution dilemma within the B C Treaty Commission process. The Liberal government pursues policies that affirm First Nations as a category by positively revaluing their identities through the recognition o f their rights while also attempting to abolish the differentiation between First Nations and non-First Nations as "unsuccessful" and "successful" market actors by redressing First Nations economic marginalization. Characterizing the recognition of Aboriginal rights as reifying First Nations' identity and redistributive policies as dedifferentiating between First Nations and non-First Nations, the remedies associated with each would therefore appear to be in conflict. Fraser's characterization of the politics o f recognition and redistribution as interdependent demonstrates, however, that it is not enough to simply address cultural injustices o f misrecognition independently, nor is it enough to redistribute wealth by reallocating resources to marginalized groups. A s noted earlier, however, it w i l l also be necessary to examine how these remedies intersect. The construction of the recognition/redistribution dilemma and Fraser's own critique o f the dilemma, exemplify how characterizing these as separate and unrelated fails to examine their points o f convergence. For example, the provincial government has, through the treaty process, been concerned to "materially improve [First Nations'] quality o f l i f e . "  24  The  government does not examine why these remedies are necessary or how economic injustice  -37-  relates to a politics o f recognition. Rather than examine the underlying patterns o f recognition that have given rise to economic inequities, the remedies advanced by the Liberal government are instead committed to redressing maldistribution by enhancing First Nations' market activity. The government has concentrated on policies that allocate funds to viable business ventures,  25  building employment partnerships between First Nations and the business sector and enhancing 26  First Nations' involvement i n resource management i n the province. A l l these would strengthen 27  First Nations' participation in the economy and these remedies are all necessary and desirable. Applying Fraser's construction o f the affirmative/transformative binary, these policies represent both an affirmative liberal multiculturalist and liberal welfare state as they merely reify First Nations' identities by attempting to accommodate them within existing structures o f recognition. This approach is also affirmative as it reinforces the liberal capitalist system o f distribution and does not interrogate h o w injustices may i n fact be perpetuated. A s Fraser notes, both are problematic as they only address the effects o f misrecognition and maldistribution and do not examine the underlying relations o f recognition and production that structure the injustices First Nations experience. Furthermore, because the government is concerned to redress the effects o f injustice, and not the underlying imbalances o f power, the government does not account for how these injustices continue to inform relations o f recognition and production. These relations o f power that structure inequalities are seen to be unrelated to the injustices presently experienced by First Nations. The provincial government thereby rejects assertions that it is responsible for historical injustices by assuming that these injustices no longer inform current relations. The Liberal government's policies also do not account for the ongoing  BC Liberal Party, Supra note 16. Ministry of Attorney General Treaty Negotiations Office, News Release 2003FOR0027-000545, 'Gitxsan Agreement is Economic Step Forward in Northwest' (June 1, 2003). Ministry of Attorney General Treaty Negotiations Office, News Release 2003MCAW0065-000555, 'Partnership to Fuel Job Opportunities for Aboriginals' (June 4, 2003). Ministry of Attorney General Treaty Negotiations Office, News Release 2003EM0007-000492, '$1.9m for First Nations' Oil and Gas Opportunities' (May 16, 2003). 24 25  26  27  -38-  privileges and benefits non-First Nations i n British Columbia enjoy as result o f the historical and continuing exploitation o f First Nations. This exploitation occurs through the ongoing accumulation o f wealth derived from the wrongful acquisition o f First Nations' lands. In demonstrating how the Crown continues to derive benefit from the exploitation o f First Nations, some indigenous commentators have noted that the province o f B C represents "the largest remaining mass o f unceded sovereign Indigenous territory in North A m e r i c a . " Columbia, 95% o f land is designated provincial Crown land.  28  In British  Crown land generates vast  revenue for the province through the natural resource sector, which includes the primary forest industry, mining, hydro, o i l and gas, and fishing and trapping, as well as raw resources processing. George Pedersson notes that not only are provincial employment rates dependent on the natural resource sector, but also "dependence on natural resources extends to the provincial revenue base."  30  Pedersson observes that "2001/2002 estimates show that direct revenues from  [natural] resources [in B C ] represent the largest single item after personal income taxes; 3.3 times that o f corporate profit taxes, and 1.5 times that o f federal transfers. When one includes personal income tax revenue provided by resource employment, it is safe to say that it is the largest single contributor to provincial government revenues." These economic benefits are seen to derive from the natural rights o f the province to Crown lands rather than being dependent upon the illegitimate acquisition o f First Nations' lands. The treaty process was established precisely to recognize this injustice. Both federal and provincial governments recognize that these lands were wrongfully acquired by virtue o f entering into the treaty process. It is difficult to deny that they continue to rely on money  SISIS Bulletin, 'Nisga'a Hereditary Chief Challenges Treaty' (June 2, 1997) Available at http://sisis.nativeweb.ora^clark/iun02nis.html> [accessed April 2, 2003]. Doug McArthur (2002) 'Modern Treaties: Institutional Dynamics and Institutional Change' Department of Political Science, University of British Columbia [Unpublished Manuscript] at 10. George Pedersson 'The Importance of the Natural Resources Sector to the B.C. Economy', BC Business Summit, (May 15, 2001) [Unpublished Manuscript] <available at: http://www.bcbusiness sunimit.com/news/newsr 01 05 15 l.asp> [accessed June 3, 2003] 28  2 9  3 0  31  Ibid.  -39-  generated from these lands. They are willing, however, only to negotiate treaties that return lands to First Nations to the extent that these agreements do not threaten the provincial economy. That is, the government is unwilling to transform the relations of production that rely upon the exploitation o f First Nations because they continue to derive economic stability and wealth from these exploitative relations. In the treaty process, the Liberal government has recently negotiated an A I P with the Lheidli T'enneh First Nation. This Nation w i l l have jurisdictional authority for resources over their lands for domestic purposes.  The provincial government w i l l not, however, recognize how  those lands designated " C r o w n " land, as well as those traditional lands not included as part o f the Lheidli T'enneh's territory within the agreement, continue to be relied upon by the provincial government for their own economic benefit. The provincial government continues to use those resources that continue to be a part o f " C r o w n " lands in order to generate profit and wealth for the provincial economy. The provincial negotiating team cannot discuss the issue o f compensation with the Lheidli T'enneh for these lands not included as part o f the Agreement. Instead, they w i l l receive money transfers totalling $12.8 million and 3,360 hectares o f provincial and federal Crown land. Claims that current generations are not accountable or responsible for "past" wrongs are relied on internationally to distance colonizers from the exploitation o f colonized peoples. Franz Fanon, writing on the "postcolonial" condition o f A f r i c a after liberation from European control, speaks powerfully to the need to recognize the ongoing privilege derived by the colonizers. He states: Europe is literally the creation o f the Third World. The wealth which smothers her is that which was stolen from the underdeveloped peoples. The ports o f Holland, the docks o f Bordeaux and Liverpool were specialized i n the Negro slave trade, and owe their renown to millions o f deported slaves. So when we hear the head o f a European state Ministry of Attorney General Treaty Negotiations Office, News Release 2003TNO0023-000602, 'Backgrounder: Lheidli T'enneh First Nation Agreement-in-Principle' (June 25, 2003). Ibid.  3 2  33  -40-  declare with his hand on his heart that he must come to the aid o f the poor underdeveloped peoples, we do not tremble with gratitude. Quite the contrary; we say to ourselves: "It's a just reparation which w i l l be paid to us." N o r w i l l we acquiesce in the help for underdeveloped countries being a program o f "sisters o f charity." This help should be the ratification o f a double realization: the realization by the colonized peoples that it is their due, and the realization by the capitalist powers that in fact they must pay.  34  The provincial government has not only benefited from the wrongful acquisition o f First Nations' land, but it perpetuates injustices o f misrecognition and maldistribution as it does not recognize that these exploitative relations structure current relations between the C r o w n and First Nations. It is necessary, according to Fraser, for all sides to consider their role in the continuing power relations which structure society.  In advancing bivalent justice this must entail not just  attempting to "empower" those who are marginalized, but also fundamentally contesting those who occupy positions o f privilege. Consequently, i n failing to negotiate compensation with First Nations, the capacity o f the treaty process to fundamentally restructure these relations o f recognition and production by contesting the very basis o f group differentiation is constrained. That is, the Liberal government's refusal to negotiate compensation reflects a liberal multiculturalist agenda o f inclusiveness that ignores the vital process o f challenging colonizers' privilege.  2.3  Locating the Dominant Discourse of Dependency The ongoing misrecognition and maldistribution o f First Nations through the treaty  process is masked by the dominant discourse o f dependency. This discourse characterizes First Nations as dependent, to evoke the wording o f the ruling of the Supreme Court o f British Columbia i n the Delgamuukw case, upon "the pleasure o f the Crown."  This does not account  Franz Fanon (1963) The Wretched of the Earth. New York: Grove Press at 102-103. Nancy Fraser (1998) 'Social Justice in the Age of Identity Politics: Redistribution, Recognition and Participation' p. 3-67 in The Tanner Lectures on Human Values. Salt Lake City: University of Utah Press at 27. Delgamuukw v. BC [1991], 3 W.W.R. 97. 34  3 5  36  -41 -  for the extent to which the " C r o w n " (that is, the sovereign entity o f the nation-state) is dependent upon First Nations and more importantly, upon the exploitation o f First Nations. That is, these discourses o f dependency are not one-directional, but /ww/ridirectional. They are not a form o f dependency that then flows only from the Crown to First Nations, but reflect the different forms o f dependency flowing from the Crown to First Nations and from First Nations to the Crown. Discourses o f dependency also exist within these groups, which is why ww/f/directional as a concept is perhaps more appropriate than characterizing it as /'«/erdependence. Nancy Fraser and Linda Gordon conduct a genealogy of dependency in Western liberal democracies excavating the concept o f dependency within shifting historical and economic contexts. Fraser and Gordon argue that such an inquiry exposes the presuppositions, upon 37  which the discourse is founded, "especially assumptions about human nature, gender roles, the causes o f poverty, the nature of citizenship, the sources of entitlement, and what counts as work and as a contribution to society."  Fraser and Gordon observe that during the early history o f  colonization "the colonial native personified political subjection."  Dependency was seen as a  character trait, First Nations were seen to be lacking the reason and rationality needed to be selfgoverning individuals. In order to facilitate "Indian" development in gaining these attributes common among "men," the colonizers attempted to assimilate First Nations to Western religion, culture, economic and political practices. This attempt at assimilation did not, however, confer acceptance into European society. Those First Nations who mastered European culture were still demarcated as "other." Although at this time, universal human rights were being instituted as fundamental rights o f all individuals, overt forms o f racism rendered First Nations incomplete subjects and therefore in need of guardianship as opposed to citizenship. Ironically, First Nations  3 7  Nancy Fraser and Brenda Gordon (1997) 'A Genealogy of'Dependency': Tracing a Keyword of the U.S. Welfare  State', p. 121-149 in Nancy Fraser Justice Interruptus: Critical Reflections on the 'Postsocialist' Condition. New  York: Routledge. 38  Ibid at 123.  -42-  were initially seen to be dependent because they were colonized and thus required paternal governance structures like the Indian Act, but were later justified as colonized subjects because they were dependent. Their incapacity to be full citizens determined their position as 40  subordinated members o f society. First Nations were further characterized as dependents through their exclusion from wage labour and their failure to develop their lands for agricultural purposes.  41  They were the  antithesis o f the struggling colonizer, toiling the land and working to produce a new nation. The importation o f Lockean liberal ideology in the colony invested individuals with rights by virtue o f their capacity to work, to earn a wage and potentially to better their condition i n life. First Nations' perceived inability to adopt similar ethics resulted in their characterization as lazy and as lacking skill and initiative. First Nations were held to be responsible for their own condition in the colony, their inability to adopt and promote European values validated their relative position o f poverty and justified the Crown acquiring "unused" lands  4 2  In this relation o f dependency,  First Nations were seen as reliant upon the "pleasure o f the C r o w n " for their survival.  43  This characterization o f First Nations as "dependents" is perpetuated in a different, but perhaps a more insidious form through the B C Treaty Commission process. Neither the provincial Liberal government nor the wider British Columbian public explicitly condemn First Nations for their perceived dependency. There is more awareness o f the historical injustices that have resulted i n imbalances of power and an understanding o f why "financial assistance" is necessary. There is not, however, sufficient recognition o f how the provincial government is reliant upon the exploitation o f First Nations. Rather than account for this exploitation, First Nations are instead represented as reliant upon the goodwill o f the government and the charitable  40  41  Ibid at 128. Ibid.  See Barbara Arneil, John Locke and America: The Defense of English Colonialism, Oxford University Press, 1996. Delgamuukw v. BC [1991] 3 W.W.R. 97.  4 2  43  -43-  assistance o f the taxpayers o f British Columbia and Canada. The ongoing benefits accrued through the provincial control of " C r o w n " land are not accounted for. Martha Fineman has provided an important reading of discourses o f dependency, analyzing how discursive practices mask "the dependency of society and all its public institutions on the uncompensated and unrecognized dependency work assigned to caretakers within the private family."  44  Her analysis reveals the need for asserting collective responsibility  for the benefits o f care-taking labour that is typically assumed by women and that has been hidden within the family. While her approach is useful, her conceptualization o f dependency is at times problematic. Fineman notes that "the family is delegated primary responsibility for dependency." B y 45  locating the family as the primary site o f dependency, Fineman risks further masking other discourses o f dependency. She ignores the structures of colonialism upon which North American states are founded. There are other, perhaps even more fundamental and primary sites o f dependency, for example, between the state and indigenous peoples through the wrongful acquisition o f their lands and the persistent refusal to assume responsibility for this exploitation. Another limitation is the distinction Fineman constructs between "inevitable" dependency, which she argues is based on biological and universal need and "non-inevitable" dependency, which are experiences that are not universal but that could be biological such as emotional, psychological as well as forms o f economic dependency. Through the construction o f this binary, Fineman concludes that "caretaking debt is a collective one [as it] is based on the fact that biological dependency is inherent to the human condition, and therefore, of necessity o f collective or societal concern." This dualism between "inevitable" and "non-inevitable" risks, 46  however, naturalizing colonial privilege. The state's dependency upon the exploitation of First Martha Fineman (2000) 'Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency' American University Journal of Gender Social Policy and the Law 8:13-29 at 14. Ibid at 15. 4 4  45  -44-  Nations' lands is not addressed within her approach as it is not a universally experienced form o f dependency nor is it part o f the human condition. A s with Fineman's analysis of caretaking labour, it is instead the social context within which these discourses take place that need to be contested. Projects of decolonization are premised upon identifying and destabilizing the discourses o f colonialism that are perpetuated through the construction o f First Nations as dependents. First Nations, at the same time, use these discourses o f dependency in order to contest the imbalances o f power that they experience. For example, the fiduciary duty owed to them by the Crown causes First Nations to be reliant upon them to uphold this duty.  47  This discourse can be  useful to First Nations asserting the duty o f the Crown to consult them i n matters that affect their interests. Another example o f how First Nations strategically use these discourses o f dependency is by pursuing their interests through the capitalist market economy. First Nations' increased reliance upon market norms as market actors while potentially problematic, can also create opportunity for First Nations to develop their resources and economies. Market activity provides further tools that First Nations can draw upon to assert their independence and autonomy from the Canadian nation-state. These discourses o f dependency can therefore be strategically useful for First Nations. Discourses o f dependency are problematic, however, when they are exploitative and it is these exploitative relations that the government does not recognize when they reject the importance of negotiating compensation with First Nations. In challenging the dominant discourse o f dependency it is important to demonstrate how the Crown can be seen to be, not only reliant upon First Nations, but also on their economic exploitation.  Ibid at 18, emphasis added. R. v. Sparrow [1990] 1 S.C.R. 1075; Guerin v. The Queen [1984] 2 S.C.R.; R. v. Gladstone [1996] 2 S.C.R. 723; R. v. Van der Peet [1996] 2 S.C.R; R. v. NTC Smokehouse Ltd. [1996] 2 S.C.R. 672; Delgamuukw v. British Columbia[\99S] 1 CNLR65.  46 47  -45-  2.4  Applying Fraser's Theory of Bivalent Justice to Compensation Fraser's approach demonstrates that such practices o f unrecognized economic  exploitation fundamentally undermines First Nations' ability to participate fully i n social, political and economic life and thereby undermine any attempt to realize bivalent justice. Her model o f status subordination is useful as it demonstrates that compensation must be paid in order to ensure that these exploitative relations are contested and destabilized and i n order to realize this form o f justice. Fraser's normative condition o f participation parity that she argues underlies her model o f status subordination has two preconditions. First, she sets out an intersubjective precondition o f mutual respect and second, an objective precondition that requires fair distribution o f resources so that individuals can interact freely. The objective precondition has, i n turn, three material prerequisites. First, that individuals not be subjected to experiences o f extreme deprivation and exploitation; second, that there should not be vast institutionalized inequalities in wealth and finally, that there not be vast institutionalized inequalities i n leisure time. A l l these work simultaneously to ensure that individuals have the "equal right to pursue social esteem under fair conditions o f equal opportunity.' The first material prerequisite o f her objective precondition clearly establishes that all relations o f exploitation undermine a participatory norm. The ongoing exploitation o f First Nations' lands and the refusal o f the Liberal government to admit to this relationship o f exploitation would thereby prohibit the realization o f Fraser's model o f bivalent justice. Further, the second material prerequisite outlined is that inequalities in wealth should not be institutionalized. The treaty process would fail this second prerequisite as it risks institutionalizing inequalities i f compensation is not negotiated. The economic privileges that the Crown currently enjoys would be institutionally sanctioned through formalized treaties protected  -46-  by the highest laws of the state, the Constitution. These treaties would institutionally entrench a system o f exploitation and gross inequality and would fundamentally undermine the realization o f bivalent justice. Applying Fraser's approach further, her model of bivalent justice requires a consideration o f how compensation, as a potential remedy that could be adopted through the treaty process, is both constraining and enabling for First Nations. It is enabling as it involves the recognition by the state that it is implicated in relations o f colonization and that it must assume responsibility for the resulting future relations o f exploitation. It is constraining, however, for those First Nations who are not participating in the treaty process. If compensation is only negotiated within the existing treaty process, no alternate processes are available to those First Nations who reject the legitimacy o f the state to determine their inherent rights through the current treaty process. Introducing compensation exclusively within the treaty process as the remedy that comprehensively addresses both injustices o f recognition and redistribution risks entrenching the legitimacy o f the state as the site that "transforms" First Nation-Crown relations. It overlooks sites outside these institutions, such as within and between First Nations themselves, that contest hegemonic colonial structures. For example, it ignores those First Nations boycotting the treaty process and overlooks the significance o f this resistance. In determining whether compensation through the B C Treaty Commission process would be an appropriate remedy to realize justice, Fraser's work suggests that two "trade-off scenarios" should be avoided. First, those remedies that impose unreasonable material costs on the 49  claimants must be avoided and second, remedies that address one form o f injustice, but that worsen other injustices. Rather, she suggests an appropriate remedy should aim to redress 50  multiple forms o f misrecognition and maldistribution simultaneously.  4 8  Fraser, Supra note 35 at 27.  49  Ibid at 52.  -47-  A s a remedy that should be available through the treaty process, compensation would address both misrecognition and maldistribution and would not worsen the economic status o f First Nations in B C . It would instead, contribute to enhancing First Nations' economies while addressing the experiences of poverty and economic marginalization. While compensation would redress some injustices o f recognition by holding the provincial government accountable for its part in perpetuating exploitative relations, compensation could also further reinforce the legitimacy o f the state. For those First Nations that are actively contesting the state's assumed sovereignty by boycotting the B C Treaty Commission process, compensation as a remedy available exclusively through the B C Treaty Commission process is problematic. Rather, other strategies or sites must also offer to compensate those First Nations not involved in the current B C Treaty Commission process. First Nations are involved in different decolonizing processes that attempt to restructure different relationships with the state. Following from Fraser's model o f bivalent justice, it is important to be aware o f how compensating First Nations through the B C Treaty Commission process may benefit some First Nations, but also be problematic for others. It would appear that the vital determinant to realize bivalent justice is to ensure that various strategies are pursued simultaneously so that the many First Nations in British Columbia can structure the form o f relationship each decides is appropriate. Excluding compensation from the provincial government's treaty mandate constrains this choice and limits the possibility for bivalent justice to therefore be realized through the existing treaty process.  Conclusion Fraser's reconceptualization o f the politics o f recognition and redistribution as interdependent and her theory of bivalent justice expose an important limitation to the provincial government's negotiating mandate through the B C Treaty Commission process. That is, by -48-  excluding compensation from being negotiated through this process the experiences o f misrecognition and maldistribution are thereby perpetuated. Fraser's work exploring the interconnectedness o f recognition and redistributive justice assists in locating the ways in which the current government, by characterizing these as distinct and unrelated, fails to account for how they are mutually reinforcing. Further, Fraser's approach can be used to demonstrate that by characterizing recognition and redistribution as distinct, the provincial government justifies its refusal to negotiate compensation insisting instead that these injustices do not structure existing relations between First Nations and the Crown. The dominant discourse o f dependency is employed by the provincial government to further dissociate itself from these historical injustices. This characterizes First Nations as reliant upon the Crown and does not recognize that the Crown is dependent upon the misrecognition and exploitation o f First Nations. Fraser's theory o f bivalent justice demonstrates that i f justice is to be achieved through the treaty process, these relations of misrecognition and exploitation must be addressed not only by advancing the politics o f recognition and redistribution, but by examining how these interrelate. Compensating First Nations is an important remedy that should be negotiated through the B C Treaty Commission process as it responds to the interplay between injustices o f both misrecognition and exploitation that First Nations experience. Therefore, the provincial Liberal government's failure to negotiate compensation severely undermines its commitment to negotiate more just relations with First Nations in B C .  -49-  Chapter Three Negotiating Local Government Introduction In applying Fraser's model o f bivalent justice to the treaty process in the previous chapter, it is evident that her approach can be used to demonstrate why the provincial Liberal government's refusal to negotiate compensation is inadequate. Instead, i n order to work towards the type o f justice Fraser envisages, it w i l l be necessary to negotiate compensation in the treaty process to redress injustices o f misrecognition and maldistribution. Her work can also be employed to contest the appropriateness o f the provincial Liberal government's mandate to negotiate self-government as a form o f local government, and it is this project that w i l l be undertaken i n this chapter. In addition to using Fraser's framework to analyze the provincial Liberal government's mandate, this chapter also identifies two other approaches that challenge it: first, an understanding o f self-government as an inherent right; and second, an analysis o f how the provincial government has appropriated self-government to denote a form o f local government through trends o f privatization. That is, the provincial government has limited the meaning o f self-government, a constitutionally guaranteed Aboriginal right, within the treaty process and further, represents this limited understanding o f self-government as both progressive and desirable for First Nations. In working towards certainty over land claims with First Nations through the treaty process, the current provincial government sets self-government as an objective for First Nations while simultaneously pursuing policies o f privatization. Self-government is promoted, therefore, as a means to achieve economic self-sufficiency for First Nations and as a form o f local government, not as a strategy for realizing First Nations' inherent rights to be self-governing.  -50-  Trends o f privatization that are invoked by the provincial government justify and legitimate this limited form o f self-government being negotiated. To explore these issues this chapter is divided into three parts. First, I introduce the concept o f self-government and briefly situate the provincial Liberal government's treaty mandate within the broader legal/political landscape. The second part critically considers the problems associated with negotiating self-government as a form o f local government. There are three sections to this part. First, I employ Fraser's framework to consider whether the government's mandate is regressive by examining whether negotiating self-government as a type o f local government realizes bivalent justice. I question whether negotiating self-government as an inherent right that is not delegated by both federal and provincial government, but exists within the framework of the Constitution, would be consistent with her theory o f justice. The second section identifies another challenge to the government's mandate. This challenge stems from First Nations' different claims for self-government by exploring the different understandings o f it as an "inherent" right. Finally, I identify a third fundamental challenge to the government's mandate. I examine how the progressive objective o f realizing self-government for First Nations as an inherent right is appropriated by the provincial Liberal government and diluted so that it is negotiated as a form o f local government. That is, I explore the strategies and tactics associated with trends o f privatization employed by the provincial government that justify and legitimate self-government being negotiated as "municipal-like" in nature. Within this third part I identify five discursive practices employed by the provincial Liberal government that are part o f the broader logic of privatization: the discourse o f self-sufficiency, reregulation/reprivatization, indigenization, and the discourse o f risk management. Finally, I consider the implications o f these trends o f privatization for Fraser's theory o f bivalent justice. The overarching objective of this chapter is first, to critically consider the provincial Liberal government's mandate that negotiates self-government as a form of local government. Second, I -51 -  aim to critically engage with Fraser's model o f bivalent justice and to determine whether these trends o f privatization problematize the realization o f bivalent justice.  Part One: Self-Government in the Treaty Process 1.1  Negotiating Self-Government A s a potentially rich and complex source o f First Nations' rights, the fundamental and  inherent right to self-government has been severely limited as it is currently negotiated in the B C Treaty Commission process. The provincial government w i l l only recognize a form o f selfgovernment that is "municipal-like" in character. It is still unclear exactly what components of 1  local government would make self-government for First Nations "municipal-like," but one principle implemented through the treaty process is that self-government for First Nations is to be delegated from both the federal and provincial governments. A n implication o f this is that First Nations w i l l have limited legislative power because most of those law-making powers recognized w i l l be already subject to both provincial and federal laws. There are, however, broader social, political and economic implications for this model o f self-government and I consider these later in the second part o f this chapter. In contrast to the provincial Liberal government's mandate, the federal government has recognized that the right to self-government extends beyond a form o f local government. The federal government, in 1995, recognized that it was an inherent right o f Aboriginal peoples that was constitutionally guaranteed under section 35. The federal government argues that while they do not recognize First Nations as sovereign nations, they have:  Letter from Geoff Plant to Philip Steenkamp, 'Re: Instructions to Negotiators' (31 July, 2002) <available at: http://ww\v.gov.bc.ca/tno/negotiations/instr for negotiators.Htm>[accessed March 20 ,2003] Department of Indian and Northern Affairs, (1995) Aboriginal Self-Government: The Government of Canada's 1  2  Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, Ottawa:  Indian Affairs and Northern Development. -52-  The right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.  3  The federal government has not mandated that this right be delegated from both the federal and provincial government, but states that it already exists within the framework o f the Canadian Constitution.  4  Court decisions have also recognized that the right to self-government is constitutionally guaranteed and that it can be negotiated in the B C Treaty Commission process. Despite these 5  precedents, however, the recent referendum initiated by the provincial Liberal government on the treaty process supported a mandate that limits self-government for First Nations, stating that "aboriginal governments should have the characteristics o f local government, with powers delegated from Canada and B C . "  6  Despite negotiating from a limited mandate, five Agreements in Principle (AIPs) have to date been negotiated through the B C Treaty Commission. Most contain provisions relating to self-government. These Agreements provide for the formalization o f a Constitution that requires that these governments be democratic in their composition, membership and duties, accountable 7  to their citizens through regular elections, and financially accountable "comparable to standards generally accepted for governments in Canada." These AIPs also recognize the law-making 9  authority o f First Nations government, which includes jurisdiction over education, child and 10  family services,  3  4  5  6  11  and citizenship  12  subject to both provincial and federal laws.  13  The Maa-nuth  Ibid. Ibid. Campbell et al. v. A.G.B.C. and Nisga'a Nation et al. [2000] B.C.S.C. 1123.  LetterfromGeoff Plant, Supra note 1.  Draft Sliammon First Nation Agreement in Principle (July 10, 2003, hereinafter SAIP) c.12 s.9(a), Draft Maa-nuth First Nations Agreement in Principle (May 29, 2003, hereinafter MAIP) c.12 s.14(a), Draft Tsawwassen 7  Agreement in Principle (July 9, 2003, hereinafter TAIP) cl3 s.5(a); Lheidli T'enneh Agreement in Principle (May 2, 2003, hereinafter LAIP) 15(a). SAIP c. 12 s.9(b), MAIP c. 12 s. 14(b), TAIP c. 13 s.5(b), LAIP s. 15(b). SAIP c.12 s.9(c), MAIP c.12 s. 14(d), TAIP c.13 s.5(c), LAIP s. 15(c). SAIP c.12 s.23(a), MAIP c.12 s.20(a), TAIP c.13 s.l2(cc), LAIP s. 19(a). " SAIP c.12 s.23(b), MAIP c.12 s.20(b), TAIP c.13 s.l2(i), LAIPs. 19(b). 8 9  10  -53 -  and the Sliammon AIPs both allow for the negotiation o f a "Self-Governance Agreement" and "Governance Agreement," respectively, that may recognize First Nations' jurisdiction over 14  issues such as social services, income support and health services. 15  16  17  These law-making 1R  powers w i l l also, however, be subject to both provincial and federal laws.  Part Two: Identifying Problems with the Government's Negotiating Mandate 2.1  Realizing Bivalent Justice: Negotiating Self-Government Fraser's theory o f bivalent justice can be applied to consider whether negotiating self-  government as a form o f local government, as opposed to recognizing it as an inherent right, is a regressive remedy. Fraser proposes that i f justice is to be realized, both injustices o f recognition and distribution must be simultaneously addressed "without reducing either one o f them to the other." Her "normative core" o f participation parity and her model o f status subordination 19  provide useful conceptual tools to consider whether the remedy o f negotiating self-government as a form o f local government is sufficient to realize bivalent justice. Fraser sets out an intersubjective condition for the norm of participation parity requiring that "institutionalized cultural practices o f interpretation and evaluation must express equal respect for all participants and ensure equal opportunity for achieving social esteem."  20  Negotiating self-government as a form o f local government does not satisfy this intersubjective condition. First Nations do not receive equal respect or equal opportunity to realize social esteem in Canadian society. The ongoing legacy o f colonialism has rendered their structures o f  12  SAIP c.12 s.23(i), MAIP c.12 s. 14(h), LAIPs. 18(c).  13  SAIP c.12 s.22, MIP c.12 s.28, LAIP s.22. SAIP c.12 s.2, MIP c.12 s.2  14  15 16 17 18  Ibid, c.12 s.31(e) Ibid, c.12 s.31(f) Ibid, c.12 s.31(g) Ibid, c.12 .32.  Nancy Fraser (1998) 'Social Justice in the Age of Identity Politics: Redistribution, Recognition and Participation' p. 3-67 in The Tanner Lectures on Human Values. Salt Lake City: University of Utah Press at 30. Ibid at 54, emphasis added. 19  20  -54-  governance subordinate to the state. Recognizing self-government as a form o f local government not only continues to subordinate these to the federal government, but also to the provincial government. Fraser's model o f status subordination is useful to demonstrate that negotiating local government for First Nations would not therefore realize bivalent justice as it does not redress these inequalities, but rather perpetuates them. It has been argued that First Nations' own structures o f governance have been so fundamentally destroyed by colonialism that this justifies the state's intervention to define appropriate structures o f governance.  21  This has implications for both recognition and  redistributive justice as it affects the type o f representation that w i l l be recognized and the resources that are allocated. Anishinabe legal scholar John Borrows' recent book, Recovering Canada: The Resurgence of Indigenous Law, challenges the assumption that First Nations' political and legal systems have been completely undermined by processes o f colonization. H i s insightful analysis demonstrates not only that indigenous legal systems continue to inform First Nations' lives, but also that Canadian law, is itself dependent upon the existence o f these indigenous systems o f law. He examines the ways in which Canadian law is reliant upon, and partly originates from, Aboriginal law. For example, through the legal characterization o f Aboriginal rights as "sui generis," "pre-existing," "un-existingushed," and "customary," the common law cannot be the exclusive source that defines these rights, but that Canadian law in its dealings with Aboriginal peoples, draws upon Aboriginal law to give meaning to Aboriginal rights. Recognizing self-government as a form o f local government does not create space for 22  these indigenous legal and political systems. Rather than ensuring First Nations' "voice" as full  Dara Culhane notes that the Crown in the trial hearing of the Delgamuukw decision made these arguments. She notes further, that arguments that First Nations had voluntarily "acquiesced" to colonial rule further justified the state's justification of the refusal to recognize First Nations' structures of governance. Dara Culhane (1998) The 21  Pleasure of the Crown: Anthropology, Law and First Nations. Vancouver: Talonbooks at 216.  John Borrows (2002) Recovering Canada: The Resurgence of Indigenous Law. Toronto: University of Toronto Press at 9.  22  -55-  and equal members o f social and political life, these legal and political systems continue to be marginalized. Therefore, to be consistent with Fraser's theory o f bivalent justice, it would be necessary to negotiate the right to self-government as an inherent right that is not delegated from the federal and provincial governments. Recognizing the right to self-government as broader than a form o f local government would facilitate First Nations' full and equal participation by redressing the ongoing misrecognition that First Nations do not have their own fully developed and operational governance structures and systems o f law. Further, negotiating this right on the basis that it is not delegated, but that it can exist within the framework o f the Constitution, ensures that there is participation parity. First Nations may be seen as social and political partners in Canadian Constitutionalism and not subordinated members. Fraser's approach can be further employed to contest the Liberal government's claims that, in fact, recognizing self-government as a form o f local government enables First Nations' participation i n social and political life as it creates opportunity for greater involvement than was previously available.  Fraser's work can be used to reject these assertions as she maintains that  for bivalent justice to be realized, the injustices experienced and the remedies proposed must be historicized. She asserts that "the pragmatic approach proposed here...situates claims for the 24  recognition o f difference squarely in the context o f social power."  25  First Nations' current  experiences o f injustice are not exclusively a result o f historical inequality, but these have arisen from the ongoing history o f colonialism. Recognizing First Nations' right to self-government as a form o f local government would increase First Nations' jurisdiction to legislate over some matters not currently available under the existing Indian Act and to institute new structures o f  Ministry of Attorney General Treaty Negotiations Office, News Release 2003TNO0023-000602, 'Backgrounder: Lheidli T'enneh First Nation Agreement-in-Principle' (June 25, 2003). Fraser, Supra note 19 at 32-33 and Nancy Fraser (1997b) 'Heterosexism, Misrecognition, and Capitalism', Social Text 52/53 15 (3 and 4): 279-89 (Fall/Winter) at 287. Fraser, Supra note 19 at 34-35.  2 3  2 4  2 5  -56-  governance other than the band system created through the same piece o f legislation. It would, however, appear also to institute new injustices that are potentially more problematic for First Nations. For example, as a comprehensive land claims process, First Nations are forced to surrender the broader meaning of their rights to self-government in exchange for those selfgoverning rights created through the treaty process.  2.2  Self-Government as an Inherent Right Fraser's model of bivalent justice demonstrates that negotiating self-government as a  form o f local government is inadequate. In negotiating self-government through the treaty process, that right must be understood as a broader right than simply delegated from both the provincial and federal governments. There are, however, tensions within claims for recognizing self-government as an inherent right. That is, while the federal government recognizes selfgovernment as an inherent right, they do not characterize it as a right that invests First Nations with the legitimacy to be sovereign nations. The federal government argues that First Nations' governments must still operate within the Canadian Constitution. Some First Nations reject this assertion, arguing instead that their inherent right originates from outside o f the existing Canadian state and so, this right necessitates that the government negotiates with them on the basis o f their independence.  This complicates the advancement o f any model o f self-  government through the treaty process as it is currently structured. The existing process was created through statute and does not recognize the independence and autonomy o f First Nations. Taiaiake Alfred notes that to claim "sovereignty" for First Nations may be inappropriate as well, however, as it "implies a set o f values and objectives in direct 97  opposition to those found in traditional indigenous philosophies."  He notes that the concept  Taiaiake Alfred (1999) Peace, Power, Righteousness: An Indigenous Manifesto. Oxford: Oxford University Press at 113. Ibid at 57. 26  27  -57-  o f "statehood" is problematic for First Nations' structures of law and governance as it relies on a notion o f absolute authority, legitimate coercive powers, hierarchy and the separation of powers. Alfred suggests that the concept o f "sovereignty" needs to be reconceptualized so 28  that it is more consistent with indigenous values. He suggests that the principles o f T w o - R o w Wampum (or the Kanien'kehaka principle Kaswentha) w i l l be central to developing an indigenous understanding of sovereignty. He traces the meanings o f Kaswentha noting that: The metaphor o f this relationship - two vessels, each possessing its own integrity, travelling the river of time together - was conveyed visually on a wampum belt of two parallel purple lines (representing power) on a background o f white beads (representing peace). In this respectful (co-equal) friendship and alliance, any interference with the other partner's autonomy, freedom, or powers was expressly forbidden. So long as these principles were respected, the relationship would be peaceful, harmonious, and just. 29  This understanding of sovereignty poses important problems for the model o f self-government currently negotiated by the provincial Liberal government. Rather than recognizing it as delegated from federal and provincial governments, this reconceptualization o f self-government that is founded on indigenous values would require a model that respects the integrity and autonomy o f First Nations while seeming not to necessitate that First Nations secede from the Canadian state. These principles would not preclude agreements that articulate mutual commitments to matters that affect both First Nations and the Canadian government (which should be the aim o f a treaty process), but such dialogue would be based on the Canadian government and First Nations being equal and autonomous partners. If this reconceptualization were to become the basis of a treaty process, the existing structure o f the treaty process would need to be changed because it is inappropriate to allow the provincial government to be involved in dialogue on matters that affect First Nations and the Canadian government as equal partners. This approach would appear to contest the very framework o f the B C Treaty Commission process as a tripartite negotiation process. This  28 19  Ibid at 56. Ibid at 52.  -58-  exemplifies the problems that emerge from irreconcilable claims for recognition. Those First Nations who reject the legitimacy o f dominant state structures, are unable to draw on these to contest their marginalized status; this position is incommensurable with those First Nations who employ these state structures as tools to decolonize Crown-First Nations relations. Following Joan W i l l i a m s ' suggestion discussed earlier i n this thesis, the critical aspect w i l l be to ensure 30  that these various strategies do not undermine the capacity for these different approaches to work together to challenge the hegemonic structures o f colonialism.  2.3  Appropriating "Oppositional Discourses" A third challenge to the provincial government's mandate that negotiates self-government  as a form o f local government arises from an analysis o f the discursive trends o f privatization that legitimate the "appropriation o f oppositional discourses."  31  A s part o f a neo-liberal agenda  pursued by the provincial Liberal government, the government appropriates the objective o f selfgovernment for First Nations for regressive ends through these trends. That is, trends o f privatization justify the limited understanding o f self-government being advanced through the treaty process - not as an inherent right founded upon First Nations' autonomy and the continuation o f their structures o f governance, but as "municipal-like" i n nature. The emergence o f neo-liberalism in Canada is typically understood as attempting to "restore the economic and political liberty o f the individual through the promotion o f the free market and the radical reduction o f the state."  Judy Fudge and Brenda Cossman argue,  however, that neo-liberalism represents not the assumed supremacy o f the private sphere and the  Joan Williams (2001) 'From Difference to Dominance to Domesticity: Care as Work, Gender as Tradition' 76 1441-93 at 1447. Marlee Kline (1997) 'Blue Meanies in Alberta: Tory Tactics and the Privatization of Child Welfare', p. 330-359 in Susan Boyd (ed.) Challenging the Public/Private Divide. University of Toronto Press: Toronto at 338. Brenda Cossman (2002) 'Family Feuds: Neo-Liberal and Neo-Conservative Visions of the Reprivatization Project', p. 169-217 in Brenda Cossman and Judy Fudge (eds) Privatization, Law and the Challenge to Feminism. University of Toronto Press: Toronto at 177.  3 0  Chicago-Kent Law Review 3 1  3 2  -59-  withdrawal o f the state, but rather new logics and strategies o f intervention and governance.  As  part o f restructuring these systems of governance and regulation, the logic o f privatization promises to advance both progressive and desirable outcomes. Marlee K l i n e observes that: Privatization has most often been associated with neo-liberal concerns to reduce the size o f government, decrease government spending, and dismantle the welfare state. But such policies have also been promoted to serve more progressive goals to undermine the overly bureaucratic, centralized, universalised, and often fragmented nature o f service delivery, in favour o f grassroots control over and design o f more wholistic and integrated services appropriate to the diversity of local needs. 34  It is by appropriating particular ideological tools such as self-government and filtering these through the language of privatization that self-government becomes a form o f local government. While trends of privatization are not new, there is, however, something distinctive about recent trends o f privatization.  In First Nations politics, the discursive practices surrounding  privatization have only recently attempted to assimilate First Nations within the market economy, while simultaneously shifting responsibility onto First Nations as distinct peoples for their own financial well-being as "self-sufficient" and "self-governing" peoples. A critical engagement with these trends of privatization aims to dismantle the strategies through which this understanding o f First Nations as self-governing, self-sufficient market actors undermines a broader understanding o f the concept o f self-government. It is this project o f identifying the logic o f privatization that I advance in the following part o f this chapter. There are various discursive trends occurring simultaneously within First Nations' politics. Fudge and Cossman identify more broadly numerous trends o f privatization, such as: individualization, decentralization, familialization, commodification, delegation, and depoliticization. While these all in some way inform First Nations' politics, it is beyond the 36  Judy Fudge and Brenda Cossman (2002) 'Introduction: Privatization, Law, and the Challenge to Feminism' p. 337 in B. Cossman and J. Fudge (eds) Privatization, Law and the Challenge to Feminism. University of Toronto Press: Toronto at 19. Kline, Supra note 31 at 331-332. Cossman, Supra note 32 at 171. Fudge and Cossman, Supra note 33 at 20-22.  33  3 4 35  36  -60-  scope o f this thesis to consider them here. Instead, I identify five dominant discursive tactics employed by the Liberal provincial government that legitimate the appropriation o f selfgovernment: the valorization o f self-sufficiency, reregulation/reprivatization, indigenization, and risk management. The following section attempts to trace the discursive logic o f privatization as it affects First Nations' politics and to contest the construction o f self-government as a form o f local government by challenging the assumption that it is a progressive and desirable remedy. Tracing the logic o f these trends opens up "the political imaginary..., revealing some o f its gaps and fissures, and creating more discursive space for oppositional strategies within these ruptures."  37  It renders the B C Liberal government's characterization o f self-government contestable by exposing the flawed assumptions that underlie their understanding o f self-government as local government and the regressive implications o f this appropriation o f self-government for First Nations.  2.3.1  The Valorization of Self-Sufficiency  One o f the central discursive practices o f privatization in First Nations' politics is the valorization o f self-sufficiency. The discourse o f self-sufficiency and dependency can be characterized as "complementary themes."  A s argued in the previous chapter, First Nations are  characterized through the treaty process as reliant upon the Crown for the recognition o f their rights, as well as economically dependent on the state for financial assistance. A s Fraser notes, dependency is constructed "not always [to] refer to a social relation; it could also designate an  38  Cossman, Supra note 32 at 180 Martha Fineman (2000) 'Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency'  American University Journal of Gender Social Policy and the Law 8:13-29 at 17.  -61 -  individual character trait."  To be dependent is stigmatized and pathologized by the government.  It is seen as a personal failing as "dependency is suspect, and independence is enjoined upon everyone." Independence is upheld as both a desirable and necessary goal for First Nations to 40  be achieved through the negotiation o f treaties. A s noted earlier, many First Nations share these goals o f enhanced self-sufficiency and independence. In contrast to a neo-liberal understanding of self-sufficiency, which is individualized, First Nations understanding o f self-sufficiency appears to be more collective. The discursive trends associated with realizing self-sufficiency for First Nations have, however, important regressive implications for First Nations and specifically, for the type o f self-government that is negotiated to realize this objective. In employing the language o f self-sufficiency, the provincial government aims to enhance First Nations' independence through market activity. Philipps attributes this privileging o f economic independence to neo-classical economics where the private is often treated as a "source o f costs" which are to be absorbed by the market.  41  First Nations are increasingly being  held responsible for the costs associated with addressing the economic injustices they experience "at precisely the moment when the welfare state is being dismantled and public  financial  assistance is becoming scarce." That is, the discourse o f economic self-sufficiency masks the 42  multidirectional relations o f dependency and forces First Nations to assume an even greater burden for the injustices they experience. These discursive trends that promote self-sufficiency do not account for the historical injustices First Nations experience, but focus only on the end goal, that is, "independence" through free market activity.  Nancy Fraser and Brenda Gordon (1997c) 'A Genealogy of 'Dependency': Tracing a Keyword of the U.S. Welfare State', p. 121-149 in Nancy Fraser Justice Interruptus: Critical Reflections on the 'Postsocialist' Condition. New York: Routledge at 127. 40  Ibid at 135.  Lisa Philipps (2002) 'Tax Law and Social Reproduction: The Gender of Fiscal Policy in an Age of Privatization', p. 41-85 in Brenda Cossman and Judy Fudge (eds) Privatization, Law, and the Challenge to Feminism. Toronto: University of Toronto Press at 43. Cossman, Supra note 32 at 169.  41  4 2  -62-  Self-sufficiency and independence represent, as Martha Fineman observes, "core components o f America's founding myths... [which] have been ossified, used as substitutes for analysis, and eclipsed rather than illuminated debate." She states that while these concepts have 43  often been employed to mask underlying imbalances o f power, they should not be rejected, but instead they should be situated and historicized. She observes that this must be an ongoing exercise as "justice requires constant mediation between articulated historic values and current realities." The provincial government valorizes self-sufficiency to promote a particular type of 44  self-government and this reveals significant gaps between the continuing practice o f colonialism in British Columbia and attempts to redress this through the "progressive" remedy o f selfgovernment. In the B C Treaty Commission process through the Agreements in Principle recently negotiated, the First Nation governments recognized w i l l have jurisdiction to decide whether goods and services are privatized or whether the government w i l l maintain collective control over these. For example, in accordance with these agreements, First Nation governments can legislate with respect to child and family welfare services. First Nations can collectively 45  manage these services or they can be privatized and contracted out to commercial service providers. A t the same time, the money transfers agreed to under the agreements each set out a finite period within which the money w i l l be distributed. The schedules for these monetary transfers have yet to be finalized as this w i l l form part o f the Final Agreement. In the Nisga'a Treaty, this period was determined to be 15 years, and after this time there w i l l not be monetary support available for First Nations within the provisions of the treaty i f their economies do not capitalize  Fineman, Supra note 38 at 16. Ibid at 17. TAIP, Supra note 7. -63 -  on market conditions and their investments and businesses fail to generate sufficient revenue. This places a great deal of pressure onto First Nations to become successful market actors. The discourse o f dependency has expanded, therefore, to exist not only between the state and First Nations, but also between First Nations and the market. While First Nations' perceived dependency on the state is deemed unnecessary and a burden to be remedied, their dependency on the market is naturalized. The market is portrayed as the appropriate site that w i l l redistribute resources as it rewards entrepreneurial individuals committed to realizing self-sufficiency. Those First Nations who are unsuccessful or who fail to capitalize on economic opportunities are rendered blameworthy. This intense devaluing of a particular form o f dependency occurs simultaneously with the valorization o f independence so that First Nations' increased dependency on the market is not characterized as dependency, but rather represents the realization of self-sufficiency and independence. These discursive practices o f valorizing self-sufficiency have potentially regressive implications for First Nations as "it requires that indigenous people actively participate in their own exploitation." Taiaiake Alfred cites the experience o f indigenous peoples in Alaska under 47  the 1971 Alaska Native Claims Settlement A c t that extinguished indigenous peoples' rights over 90% o f their lands, guaranteeing access to corporations to resources on the land and superficial compensation amounting to three dollars per acre. Alfred notes that this agreement was 48  supported by major indigenous organizations in A l a s k a .  49  It established twelve regional and 200  village-level corporations to facilitate their new role as resource developers and market actors. Alfred observes that the model o f self-government adopted emulates a corporate model where First Nations people are "shareholders," and the governments foremost concern is to generate revenue through profit " i n order to provide the shareholders with returns on the investments  46  4 7  48  Nisga 'a Final Agreement Act, S.B.C. 1999 c. 14 s. 1.  Alfred, Supra note 26 at 116. Ibid.  -64-  made on their behalf."  50  Alfred concludes that this is an explicit example o f the co-optation of  indigenous leaders and the forced assimilation into a market economy that is fundamentally exploitative and that disrespects indigenous peoples. Alfred asserts that First Nations people are not rejecting "modernity,... but forced compliance with an exploitative system and the imposition o f an inappropriate form o f government."  51  This intense pressure to become economically self-sufficient is an affirmative liberal welfarist remedy. A s Taiaiake Alfred argues: A n ideology o f accumulation, even i f it's collective rather than individual, plays right into the consumptive commercial mentality shaped by the state corporatism that has so damaged both the earth and human relationships around the globe. From an indigenous perspective, appropriate economic development consists in taking advantage o f opportunities to build self-sufficiency in order to preserve the essence o f indigenous cultures and accomplish the goals that emerge from the culture. This is quite different from tying a community to an exploitative economy promoting objectives that contravene S9  traditional values. The current economic initiatives promoted by the Liberal government are potentially problematic for some First Nations as they entrench assumptions that business opportunities and economic partnerships with corporations w i l l result in First Nations realizing self-sufficiency as selfgovernment. This discursive practice o f defining self-sufficiency as realized through unconstrained market activity justifies the provincial government's narrowing o f the type o f self-government to be negotiated in the treaty process. It focuses attention on the economic and political "freedom" generated through market activity representing a broader understanding o f self-government as threatening the realization of any form o f self-government. Following the referendum on the treaty process in 2002, Geoff Plant, the Attorney General of British Columbia and Minister responsible for treaty negotiations, stated that i f progress was not made in the treaty process, it  49  50  51  52  Ibid. Ibid at 117. Ibid. Ibid at 114.  -65-  might be necessary to temporarily leave the process so that other more promising strategies could be pursued.  Negotiating a more moderate style o f government ensures that energy is channelled  to "developing" First Nations' economies, and not expended on less pressing issues that might undermine achieving progress in the treaty process, such as negotiating this right as an inherent right.  2.3.2  Reregulating and Reprivatizing First Nations' Politics  T w o other dominant trends of privatization are reregulation and reprivatization. While neo-liberalism is often defined in relation to the withdrawal o f the state from vast sectors o f public life through deregulation, Fudge and Cossman argue that: the concept o f reregulation allows us to highlight better the ways in which privatization is a highly selective process o f shifting some public responsibilities to the private sphere while diligently protecting and intensifying the role o f the state to regulate i n other 54  areas. That is, through reregulation the state shifts its control while simultaneously claiming to have "freed" the economy and economic actors. Applying these reregulative trends to the B C Treaty Commission process, the provincial government can be seen to be committed to enhancing First Nations' self-sufficiency or market freedom while simultaneously restricting the scope o f selfgovernment and the nature o f their economic and political activity. Both the language and discourse o f self-government have been strategically used to decentralize power without ever losing the paternalistic ability to control. Together with these reregulative trends, processes o f reprivatization also affect First Nations' politics. Lisa Philipps notes that reprivatization reflects "a renewed emphasis on the Cindy Harnett 'B.C to move on stalled treaty issues' Victoria Times-Colonist (6 July, 2002). While the Liberal government has not stepped away from the treaty process, they have committed significant resources and focused public attention on those projects that are part of the Economic Measures Fund. See Ministry of Attorney General Treaty Negotiations Office, News Release 2003TNO0020-000511, 'Backgrounder: Economic Measures Fund' (May 21,2003). Cossman and Fudge, Supra note 33 at 20. 53  54  -66-  responsibility o f individuals, families, and communities to secure their own welfare." Reprivatization reveals a fundamental shift where responsibility is reasserted to belong within the private sphere. That is, whereas as part o f Keynesian economics the state was seen to assume responsibility for the collective welfare o f its citizens, increasingly this responsibility is argued to be the exclusive concern o f individuals. Brenda Cossman observes that "assumptions about the 56  role o f government and the rights o f its citizens is emerging, i n which government responsibility for the social welfare o f citizens is being replaced by a political and social order i n which en  governments are only responsible for helping citizens to help themselves."  Promoting "self-  sufficiency" and "economic independence" for First Nations, the government attempts to shift responsibility from the state onto First Nations. The provincial government thereby maintains regulative control, defining the type o f self-government that w i l l be recognized as realizing selfsufficiency, while the associated costs are transferred onto First Nations as autonomous market actors. A contradiction that emerges from these trends o f privatization is that these often take place at the level o f the discursive and do not necessarily inform the lived realities o f many First Nations.  58  Cossman states that:  While the shift from public responsibility to private self-reliance and from social welfare law to family law is a discursive shift, embodied i n legal and political institutions, with real material effects, it does not necessarily operate at the concrete level to actually transfer responsibility. 59  While First Nations are assumed to take responsibility to be successful market actors, they are not transferred the responsibility that would see them develop their own structures o f governance free o f the constraints imposed by the state. That is, there is not a transferral o f control at a practical level. Further, the language o f relocating o f responsibility used by the provincial  55 56  57  58  Philipps, Supra note 41 at 41. Cossman, Supra note 32 at 172. Ibid. Ibid at 170.  -67-  government is also premised on the assumption that the state actually assumed full responsibility for the injustices First Nations experience. A s demonstrated in relation to compensation, the provincial Liberal government has not yet assumed this responsibility. Marlee K l i n e notes that as part o f the privatization trends in Alberta there has been pressure to privatize child welfare services to First Nations under the Progressive Conservative Party. This seemingly progressive approach promotes self-government on the basis that First Nations w i l l regain control of these services. These trends of privatization w i l l have, however, regressive implications for First Nations in Alberta. Under this policy, child welfare services 60  were to be transferred to communities where it was argued service provision could be more efficiently and effectively managed and distributed. K l i n e argues, however, that First Nations' aspiration to self-govern with respect to these services according to traditional practices and values are undermined by the provincial government's reregulation o f First Nations. While empowering First Nations to assume the responsibility o f managing child welfare services, the government has limited the ability o f First Nations to assume responsibility to administer these services as applications for funding are processed through "block" criterion that applies to all community agencies.  61  Furthermore, the government requires First Nations to remain  "integrated" with government departments to ensure that services are not duplicated. The government maintains control o f the nature and scope of these services arguing that they should not occur " i n isolation," as there may be opportunity to coordinate programs for cost saving purposes. Another tactic o f reregulation K l i n e identifies is that the government appropriates First Nations' emphasis on collective responsibility, but not to argue that First Nations' communities are best equipped to address these child welfare problems. Rather, they justify a collective  Ibid. 60  62  Kline, Supra note 31 at 340. Ibid. Ibid.  -68-  response because the government identifies the communities themselves as the source o f these problems. K l i n e ' s analysis o f the effects o f reprivatization and reregulation within Alberta's child welfare system is applicable in the B C government's approach to promoting economic selfsufficiency through the negotiated Agreements in Principle. The government evokes a discourse o f enhanced self-sufficiency and economic independence for First Nations while shifting responsibility from the provincial government onto First Nations through reprivatization. They have not, however, surrendered regulative control. They instead continue to regulate the ways i n which First Nations exercise self-government by subsuming First Nation's legislative powers within provincial governmental structures through reregulation and deregulation. First Nations are unable to draw upon their own practices and values to introduce new and innovative laws and economies. These discursive practices o f reregulation and reprivatization constrain the type o f self-government negotiated as part of the treaty process and justify the appropriation o f selfgovernment as a type o f local government.  2.3.3  Indigenization  The responsibilities that are imposed upon First Nations as part o f reprivatization/reregulation have been entrenched ideologically by being deemed "natural" and "normal." This reveals a third discursive trend o f privatization, that is, "indigenization." This trend reflects the particular practice of racializing First Nations through the logic o f privatization. For example, despite the Liberal government's attempts to promote First Nations' participation i n the economy, the government limits the scope o f Aboriginal rights recognized through the treaty process. This constrains the nature o f First Nations' participation i n the economy based upon particular assumptions about their identity. The logic o f privatization poses a unique  -69-  challenge to First Nations as it perpetuates particular colonial assumptions about First Nations' identities, while simultaneously promoting "progressive" remedies that are argued to enhance the recognition o f these identities by recognizing their right to self-government. In accordance with the Lheidli T'enneh Agreement in Principle, the First Nation government w i l l have authority to legislate with respect to business licenses and w i l l have 64  responsibility for matters o f land-use planning and development. The agreement states that in 65  relation to fisheries, the Lheidli T'enneh can only harvest fish for "food, social and ceremonial purposes." The provision goes further to note that fish that has been harvested by Lheidli 66  T'enneh Citizens may only be traded or bartered either among themselves or with other aboriginal peoples o f Canada who are residents o f British C o l u m b i a . Importantly, the 67  agreement states that fish that is harvested and that is traded or bartered may not be sold.  68  It is  anticipated that after the finalization o f this agreement, that treaty related measures w i l l be entered into that w i l l further clarify the management o f commercial fisheries. This approach does not, however, recognize that the commercial development o f fisheries may be part o f the Lheidli T'enneh's Aboriginal rights protected by section 35(1) o f the Constitution. That is, the Lheidli T'enneh First Nations are unable to develop their own economies based upon a broader recognition o f their Aboriginal rights. Philipps notes that marginalized individuals are often treated as lacking economic agency. In this context, First Nations are characterized as having been dependent upon state 69  support and must therefore become successful economic actors (through the valorization o f selfsufficiency). This ignores, however, First Nations' own economies and economic agency based on a broader understanding o f Aboriginal rights that includes their right to commercially develop  64 65 6 6 67 68  TAIP 'Governance's. 19(e) TAIP 'Lands' s.7 ^//"Fisheries' s.13 M s . 15(a) and 15(b) Ibids. 16(b)  -70-  their economies. Based upon particular assumptions o f what is "integral" to their identities and through reregulative trends, the recognition o f First Nations' identities is constrained. These discursive practices operate through the treaty process to constrain the type o f self-government that is negotiated. The purpose o f the treaty process is to define Aboriginal rights, but these are constrained through the discursive practices o f privatization. Through the trend o f indigenization, the logic o f privatization, together with colonial mentalities, serve to undermine the objective o f economic self-sufficiency for First Nations. Recognizing a broader understanding o f self-government as including First Nations' right to commercially develop their economies would enhance their capacity to be economically self-sufficient. The provincial government's claims that assert this would contravene the "traditional" practices that define First Nations inhibit the realization o f self-sufficiency. These trends serve to impose further constraints on First Nations' right to selfgovernment.  2.3.4 M a n a g i n g R i s k The discourse o f risk management is the final trend to be identified i n the treaty process. First Nations themselves, as well as the provincial and federal governments, employ this discourse o f risk management. For First Nations, this discourse o f risk management accompanies the increased pressure to exercise self-government by realizing economic self-sufficiency. Citing Nikolas Rose, Condon observes that neo-liberalism entails restructuring "the provision o f security to remove as many as possible o f the incitements to passivity and dependence."  70  First  Nations employ this discourse to further their role as entrepreneurial market actors to ensure their  Philipps, Supra note 41 at 48. Mary Condon (2002)'Privatising Pension Risk: Gender, Law, and Financial Markets', p. 128-168 in B. Cossman and J. Fudge (eds) Privatization, Law and the Challenge to Feminism. Toronto: University of Toronto Press at 128. 6 9 7 0  -71 -  economic success and to ensure that an understanding o f self-government includes the recognition that their economies are dynamic and responsive to market changes. In addition to the economic risk managed by First Nations, the state is also engaged in a process o f managing risk. The government is involved in a discursive mode o f risk management to protect against potential "threats" that may undermine its legitimacy and authority. Certainty and stability for the state are paramount principles, and the primary objective o f the B C Treaty Commission process is to ensure certainty i n B C as a result o f First Nations' land claims. The construction o f a looming "crisis" is a powerful discursive practice employed by the government through this process that promotes a limited form o f self-government as progressive while simultaneously inhibiting transformative understandings o f self-government.  71  Self-government  in its more substantive meaning as an inherent right is portrayed as causing great uncertainty for the wider public. It is a security risk; land claims are seen as threatening to undermine nonAboriginal economies and natural resource development. Further, it causes uncertainty for the cohesion o f the nation-state. The recognition o f the inherent right to self-government is portrayed as inevitably leading to the secession o f First Nations from Canada. The B C Liberal government promises safety and certainty through a moderate form o f self-government for First Nations that is contained, manageable and comprehensible to the wider non-First Nations public. Discourses o f risk management and pending "crisis" constrain the recognition o f First Nations' governance structures by presenting broader understandings o f self-government as an inherent right as threatening the stability and security o f the Canadian state. A t the same time, however, a more moderate form o f self-government is supported by both levels o f governments, as well as by other corporate economic actors i n the province. Negotiating self-government as a form o f local government is argued to provide certainty in the province without exacerbating risk  See Dianne Martin (2002) 'Both Pitied and Scored: Child Prostitution in an Era of Privatization' p. 355-402 in B. Cossman and J. Fudge (eds) Privatization, Law, and the Challenge to Feminism. Toronto: University of Toronto Press at 382. 71  -72-  and instability as it recognizes First Nations' authority as only existing within the control o f the provincial government.  Part Three: Implications for Fraser's Theory of Bivalent Justice A s shown in an earlier section o f this chapter, the mandate o f the provincial government in the treaty process embodies principles that are inconsistent with Fraser's model o f justice. Fraser's framework cannot, however, account for the particular logic associated with privatization that promotes a limited understanding o f self-government as a progressive objective. Her model cannot be used to critically analyze the various discursive tactics that appropriate "self-government" and that legitimate it as a form o f local government. A s part o f Fraser's concern to recentre economic injustice, the logic o f neo-liberalism and the trends o f privatization must be exposed and her failure to address these represents an important challenge to her approach. Mary Condon observes that trends o f privatization associated with neo-liberalism pose distinct problems for Fraser's theory o f bivalent justice. Condon focuses on the privatization o f pension schemes, arguing that it has had important implications for achieving the type o f justice that Fraser envisages. She argues that Fraser does not consider how "the opportunity for 72  feminists to push the welfare state in the desired direction is receding under the onslaught o f market-oriented policy making, bringing with it new inequalities i n gender-based risk."  73  Despite  Fraser's explicit concern to recentre redistributive justice and her focus on the interplay between the politics o f recognition and redistribution, an analysis o f the logic o f privatization would seem to expose a limitation in her approach. She does not account for how the transformative capacity o f politics is constrained as a result o f the discursive trends o f privatization. This has  Condon, Supra note 70 at 161. 73  Ibid.  -73  implications for realizing bivalent justice as her model of justice favours a deconstructivist/socialist approach which is a transformative model o f politics. Arguing that Fraser's model account for the discursive tactics that undermine transformative remedies from being implemented in the treaty process may seem too specific a requirement for an overarching theory o f justice that attempts to address all experiences of injustice that stem from misrecognition and maldistribution. Following Haraway's politics of partial perspective, Fraser's approach cannot comprehensively account for the discursive practices that affect the realization of recognition and redistributive justice. Requiring that the discursive trends o f privatization be addressed, however, is consistent with both the objective Fraser defines for her theory of justice and the framework she constructs. Fraser acknowledges that in working towards bivalent justice that it is essential to trace how economic and cultural injustices converge and she is committed to exploring their intersection. Fraser does not, however, explicitly identify how this filtering between recognition and redistribution occurs. That is, she expressly provides for such an analysis within her framework, but does not state that this is a discursive analysis o f the logic o f neo-liberalism. This critique does not dismiss the usefulness o f Fraser's approach. Rather, it suggests that there are additional lenses through which Fraser's model must be applied. Further, in using these lenses, they illuminate an important constraint within her approach. Fraser's theory fails to consider how these discursive tactics undermine the implementation o f progressive remedies that would work towards bivalent justice. For example, within the B C Treaty Commission process self-government becomes negotiated as a form o f local government. Fraser's model recognizes that this is an unsatisfactory remedy as it undermines the norm o f participation parity. Her framework cannot, however, address how selfgovernment, as an inherent right, can be advanced when the discursive tactics advanced by the provincial Liberal government undermine a broader understanding o f self-government. -74-  The discursive tactics o f privatization appear to undermine the implementation of more transformative remedies that would work towards bivalent justice, and Fraser's failure to consider the implications o f this for her model o f justice represents a significant gap in her work. This is a particularly pressing problem as her primary concern has been to develop a normative framework that can challenge liberal capitalism. A n y critical engagement with neo-liberalism must therefore entail an awareness of the constraints created as a result o f the trends o f privatization. The B C Treaty Commission process is an important site where such limitations are evident. It is not enough to apply Fraser's framework, but the logic of privatization must be directly contested.  3.2  Conclusion Negotiating self-government as a form of local government through the B C Treaty  Commission process poses distinct problems for realizing justice. Fraser's model o f bivalent justice is useful as it demonstrates that this appropriation o f self-government is in fact inconsistent with a model of bivalent justice. Applying her norm o f participation parity as well as her model o f status subordination, demonstrates that an understanding o f self-government must move beyond the provincial government's characterization o f it as a form o f local government. Instead, self-government must be negotiated as an inherent right that cannot be delegated from both federal and provincial governments, but that is within the framework o f the Canadian Constitution. A s Taiaiake Alfred notes, this approach would require negotiating with First Nations as co-equal partners, not as subordinated collectivities. This poses an important challenge not only to the mandate o f the provincial government, but to the structure o f the treaty process. In advancing bivalent justice through the treaty process, therefore, the provincial government's participation could arguably be limited and their interests represented through the  -75 -  federal government when negotiating matters that affect both the Canadian government and First Nations. The final important challenge to the provincial government's mandate are the trends o f privatization through which self-government is appropriated as a progressive remedy, but that have regressive implications for First Nations. Trends such as the valorization o f self-sufficiency, reregulation/reprivatization, indigenization and the construction of risk management all serve to legitimate self-government being negotiated as a type o f municipality. This has negative implications for First Nations as it undermines the recognition of their right as an inherent right while simultaneously justifying this appropriation under the guise of realizing "independence" for First Nations. In exposing these complex and often contradictory trends, there is an emergent problem, however, not only for the provincial government's mandate, but also for Fraser's theory o f bivalent justice. While her theory o f justice can be usefully deployed to demonstrate the inappropriateness o f negotiating self-government as a form o f local government, her approach does not account for the appropriation o f progressive remedies as part o f the logic o f privatization that have regressive implications for First Nations. Thus, her model fails to account for the discursive tactics associated with trends o f privatization that limit the transformative capacity o f politics as these discursive trends potentially undermine the implementation of remedies that work towards bivalent justice. The implications o f the appropriation of "oppositional discourses" for Fraser's theory o f bivalent justice poses, therefore, an important challenge to her theory o f bivalent justice.  -76-  Chapter Four Working Towards Bivalent Justice in British Columbia: Concluding Remarks  Fraser's theory o f bivalent justice provides useful insights into the appropriateness o f the provincial Liberal government's negotiating mandate. There are two principles within this mandate that were considered: first, the government's failure to negotiate compensation; and, second, the government's recognition o f self-government as "municipal-like" i n nature. Fraser's reconceptualization o f recognition and redistribution as interdependent yet distinct, her norm o f participation parity and the model o f status subordination all can be deployed as tools to critically examine these principles that are proposed on the basis o f redressing the injustices that First Nations experience, but that simply reinscribe inequalities. In applying her theory o f bivalent justice to the provincial government's mandate that maintains compensation is an inappropriate remedy for First Nations, it is evident that the provincial Liberal government has through its mandate, characterized the politics o f recognition and redistribution as distinct and unrelated. The provincial government is committed to recognizing First Nations' rights (such as to land and self-government) and to redistributing resources, but does not recognize how the injustices that arise from both are mutually reinforcing. That is, the government attempts only to address the effects o f these injustices and not consider the relations o f recognition and production that cause injustice. Further, because there is no attempt to understand how these injustices arise, the provincial government do not consider that they may continue to be entangled in exploitative and marginalizing relations with First Nations. Characterizing these injustices as distinct and unrelated justifies assertions that the Crown is not responsible for the injustices First Nations experience. It is evident, however, that failing to compensate First Nations for those Crown lands that were wrongfully taken from First  -77-  Nations and by continuing to derive benefit from these, constitutes an ongoing injustice that should be rectified through the treaty process. The dominant discourse of dependency serves to mask the dependency o f the Crown on the exploitation of First Nations. Conducting a genealogy of dependency reveals how dependency has historically legitimated state policies o f paternalism and colonialism. Discourses o f dependency justified the Crown's initial acquisition of First Nations' lands. More recently, this discourse o f dependency has shifted so that the wider public increasingly rejects the overt forms o f racism that legitimated the cultural domination of First Nations, but more subtle and insidious tactics and strategies associated with current practices o f colonialism remain hidden. Further complicating these discourses of dependency is the fact that First Nations also use these discourses to contest the injustices they experience. For example, the fiduciary duty the Crown owes First Nations continues to be employed by First Nations to assert the federal and provincial governments' duty to consult them over matters that affect First Nations' interest. While these discourses of dependency may therefore be strategically useful, these discourses of dependency are problematic, however, when they are exploitative. The provincial government has not accepted its role in perpetuating these exploitative relations even through the treaty process by failing to negotiate compensation with First Nations. Fraser's model of bivalent justice is useful as it demonstrates not only that injustices o f misrecognition and maldistribution are intimately connected, but that to redress only one risks undermining the realization o f justice for either. Her framework can also be employed to contest this dominant discourse of dependency that legitimates the provincial government's claim that it is not responsible for the injustices First Nations experience. Fraser argues that in working towards participation parity it w i l l not be enough to simply attempt to "empower" marginalized collectivities, but rather "everyone's sense o f s e l f w i l l need to be challenged. Accordingly, the  -78-  provincial government's assertions that it is disassociated from the injustices First Nations experience w i l l need to be contested. The material prerequisites Fraser advances as part of her norm o f participation parity are also useful as they require that all forms o f exploitation be remedied and that inequalities o f wealth should not be institutionalized. The treaty process represents an institutional site where both these prerequisites would not be satisfied unless compensation was negotiated. Further, Fraser sets out that a remedy advanced to redress injustices of misrecognition and maldistribution should not create inequalities, but should attempt to overcome multiple injustices simultaneously. For those First Nations rejecting the legitimacy of the state to negotiate treaties with First Nations through the current B C Treaty Commission process, advancing compensation solely through this process would be problematic. Rather, because the category o f "First Nations" represents a multiplicity o f nations each structuring their own processes o f decolonization with the state based on their different needs, various strategies should be advanced. Fraser's theory of bivalent justice can be used to demonstrate that compensation is one such strategy crucial to these processes o f decolonization. Compensation is a necessary strategy that should therefore be negotiated as it can begin to redress these ongoing injustices that are perpetuated as part of the B C Treaty Commission and to ensure that the treaty process works towards bivalent justice. The second aspect o f the provincial Liberal government's negotiating mandate is the recognition o f self-government as a form o f local government. Fraser's theory o f bivalent justice can be applied to demonstrate how negotiating self-government as a form o f local government is problematic. The normative principle o f participation parity requires that individuals have equal opportunity to achieve social esteem. Requiring that First Nations' structures o f governance continue to be subordinated to state structures fails to reflect First Nations' equal opportunity for respect. First Nations' own structures o f governance continue to inform their lives, and further, -79-  are relied upon by non-First Nations' legal and political systems. Marginalizing First Nations' own structures o f governance by insisting that these are in fact, forms of local government can be seen to be inconsistent with Fraser's theory o f bivalent justice. Fraser's framework reveals that self-government should be negotiated as an inherent right to promote participation parity and to challenge First Nations' status subordination. There are, however, different understandings o f "inherent" that can mean that the right to self-government exists within the framework o f the Canadian Constitution, but also that this right originates from outside of, and transcends, the state. While neither o f these approaches necessitates that First Nations cede from Canada, both approaches fundamentally contest the existing structure of the B C Treaty Commission process. The challenge posed by those First Nations who reject the legitimacy o f the state to determine the nature of this inherent right may require that the current structure o f the treaty process be changed. Following from the application o f Fraser's theory o f bivalent justice, First Nations should not be subordinated to the interests o f the provincial government, but instead be recognized as partners in Canadian Constitutionalism. Alfred suggests that a true partnership does not mean continuing to subordinate First Nations to the federal government. Rather, as part o f reconceptualizing First Nations' sovereignty to embody indigenous values, their relationship with the Canadian state should be as co-equal, autonomous partners. Accordingly, while compensation should be negotiated in the treaty process and the provincial government should be involved in this process, in dealing with matters that affect both the Canadian government and First Nations, the treaty participants to this process should be restricted to only include federal and the relevant First Nation government. There is a third challenge to the provincial government's mandate in the treaty process and this arises from an analysis o f the trends of privatization. The discursive practices associated with trends o f privatization are used by the provincial Liberal government to appropriate the -80-  progressive objective of self-government for First Nations while limiting the meaning and scope o f this right. While these trends of privatization are not new, more recently, these trends have been advanced in First Nations' politics through the language o f self-government. Selfgovernment, while a mutually shared objective, has been constrained in its meaning through these trends o f privatization and this had regressive implications for First Nations as it is recognized not as an inherent right, but as a form of local government. While there are numerous trends o f privatization that affect First Nations' politics, I identified five: the valorization o f self-sufficiency, reregulation/reprivatization, indigenization and, the discourse o f risk management. Through their use, these trends justify the scope o f selfgovernment being constrained while being presented as both a progressive and desirable remedy. These trends represent the tactical appropriation of progressive strategies for regressive ends. It is these discursive practices that undermine the implementation o f self-government in its more substantive meaning, as an inherent right that is not simply delegated from the provincial and federal government. There is, however, an important limitation to Fraser's theoretical framework. It does not seem to account for these trends o f privatization and how they inhibit the transformative potential o f politics. That is, while her theory can be used to demonstrate why negotiating selfgovernment as form o f local government is inadequate, it does not provide for how this appropriation is to be contested and more transformative remedies advanced. A n analysis o f the trends o f privatisation provides for this method o f contestation. Her failure to address the implications o f these trends o f privatization is a significant critique given that Fraser's concern is to develop a theoretical framework that can stand outside of liberal capitalism and the trends of privatization represent a major barrier to implementing remedies that would work towards bivalent justice. This critique does not undermine Fraser's theory, but suggests that additional discursive analysis needs to occur in order that her theory can challenge liberal capitalism. A -81 -  critical analysis o f the discursive trends associated with privatization that are part o f the logic of neo-liberalism is therefore an essential part o f Fraser's overarching normative project. Fraser's theory o f bivalent justice and the theoretical tools she develops to adjudicate between claims for recognition and redistribution can be employed to critically contest the mandate o f the provincial Liberal government in the B C Treaty Commission process. Utilizing her norm o f participation parity, status subordination and her reconceptualization o f recognition and redistributive justice as interwoven demonstrate that the government's refusal to negotiate compensation and the recognition o f self-government as a form of local government through the treaty process is inadequate. A n analysis o f the B C Treaty Commission also allows for a critical engagement with Fraser's theory o f bivalent justice. While her normative framework can be employed to highlight the problems within the treaty process, there is an important limitation in her approach. That is, the trends o f privatization pose a distinct problem for implementing transformative remedies that could work towards bivalent justice through the treaty process. A critical analysis o f the implications o f these trends is therefore an essential component o f her theory. While such an analysis is not inconsistent with her framework, she does not explicitly identify these discursive trends or recognize the implications o f these for her theory o f justice. In order to further bivalent justice through the B C Treaty Commission process, not only should Fraser's approach be applied, but also as part o f this, the discursive tactics associated with trends o f privatization must be contested.  -82-  Cases Cited Barbeau v. British Columbia (Attorney General) 2003 B C C A 406. Calder et al. v. 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