Wise Practices: Exploring Indigenous Economic Justice and Self-Determination 9781487537494

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WISE PRACTICES Exploring Indigenous Economic Justice and Self-Determination Edited by Robert Hamilton, John Borrows, Brent Mainprize, Ryan Beaton, and Joshua Ben David Nichols Indigenous peoples in Canada are striving for greater economic prosperity and political self-determination. Investigating specific legal, economic, and political practices, and including research from interviews with Indigenous political and business leaders, this collection seeks to provide insights grounded in lived experience. Covering such critical topics as economic justice and self-determination, and the barriers faced in pursuing each, Wise Practices sets out to understand the issues not in terms of sweeping empirical findings but through particular experiences of individuals and communities. The choice to focus on specific practices of law and governance is a conscious rejection of idealized theorizing about law and governance and represents an important step beyond the existing scholarship. This volume offers readers a broad scope of perspectives, incorporating contemporary thought on Indigenous law and legal orders, the impact of state law on Indigenous peoples, theories and practices of economic development, and grounded practices of governances. While the authors address a range of topics, each does so in a way that sheds light on how Indigenous practices of law and governance support the social and economic development of Indigenous peoples. robert hamilton is an assistant professor in the Faculty of Law at the University of Calgary. john borrows is a professor and Canada Research Chair in Indigenous Law at the University of Victoria. brent mainprize is a professor in the Gustavson School of Business at the University of Victoria. ryan beaton is a PhD candidate in the Faculty of Law at the University of Victoria. joshua ben david nichols is an assistant professor in the Faculty of Law at the University of Alberta.

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Wise Practices Exploring Indigenous Economic Justice and Self-Determination

EDITED BY ROBERT HAMILTON, JOHN BORROWS, BRENT MAINPRIZE, RYAN BEATON, AND JOSHUA BEN DAVID NICHOLS

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

©  University of Toronto Press 2021 Toronto Buffalo London utorontopress.com Printed in Canada ISBN 978-1-4875-0807-4 (cloth) ISBN 978-1-4875-3750-0 (EPUB) ISBN 978-1-4875-2565-1 (paper) ISBN 978-1-4875-3749-4 (PDF)

Library and Archives Canada Cataloguing in Publication Title: Wise practices : exploring Indigenous economic justice and   self-determination / edited by Robert Hamilton, John Borrows, Brent   Mainprize, Ryan Beaton, and Joshua Nichols. Names: Hamilton, Robert (Law professor), editor. | Borrows, John, 1963–   editor. | Mainprize, Brent, editor. | Beaton, Ryan, editor. | Nichols, Joshua,   1978– editor. Description: Includes bibliographical references and index. Identifiers: Canadiana (print) 20210168099 | Canadiana (ebook) 20210168587 |   ISBN 9781487508074 (hardcover) | ISBN 9781487525651 (softcover) | ISBN   9781487537500 (EPUB) | ISBN 9781487537494 (PDF) Subjects: LCSH: Indigenous peoples – Canada – Politics and government. |   LCSH: Indigenous peoples – Legal status, laws, etc. – Canada. | LCSH:   Indigenous peoples – Canada – Social conditions. | LCSH: Indigenous   peoples – Canada – Economic conditions. | LCSH: Self-determination,   National – Canada. | LCSH: Sovereignty. | LCSH: Autonomy. Classification: LCC E98.T77 W57 2021 | DDC 323.1197/071–dc23

This book has been published with the help of a grant from the Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario.

Contents

Acknowledgments  vii   1 Indigenous Economic Justice and Self-Determination: Wise Practices in Indigenous Law, Governance, and Leadership  3 the editors Part One: Facilitating and Framing Wise Practices   2 A Wise Practices Approach to Indigenous Law, Governance, and Leadership: Resistance against the Imposition of Law  19 brian calliou   3 Wise Practices: Towards A Paradigm of Indigenous Applied Community Economic Development Research and Facilitation  44 brent mainprize, arthur mercer, libby edwards, and kevin hindle 4  Economic Justice in Practice  78 robert hamilton, ryan beaton, and joshua ben david nichols Part Two: The State of the Law   5 Of Spectrums and Foundations: An Investigation into the Limitations of Aboriginal Rights  115 joshua ben david nichols

vi Contents

  6 The State of Canadian Law on Representation and Standing in Aboriginal Rights and Title Litigation  157 ryan beaton   7 Miyo Pimâtisiwin and the Politics of Ignorance: Advancing Indigenous “Good Living” through Dismantling Our Mediated Relations 196 darcy lindberg Part Three: Alternatives in Practice   8 Accepting Responsibility for Your Nationhood Is Worthwhile for Azny Nation on Earth, Not Just Indigenous People  223 miles richardson   9 Wise Practices in Indigenous Economic Development and Environmental Protection  236 john borrows 10 Looking Inward, Looking Outward: Finding Solutions in Indigenous and International Law  290 robert hamilton 11  Victory Through Honour: Bridging Canadian Intellectual Property Laws And Kwakwaka’wakw Cultural Property Laws  336 vanessa udy Contributors  365 Index  369

Acknowledgments

We would like to recognize and thank the University of Victoria Office of Research for the generous support that made this project possible through a Cooperative and Community-Based Economy Research Grant in 2016 and the National Consortium for Indigenous Economic Development, Brodie Guy (Coast Economic Development Society), and Brian Calliou (Indigenous Leadership and Management, Banff Centre) for their partnership. We would also like to thank Daniel Quinlan at the University of Toronto Press for patiently guiding this project along and the reviewers whose thoughtful comments and critiques helped improve the work. Most importantly, we would like to extend our gratitude to the participants and interviewees in this project whose knowledge and perspectives enriched our understanding and refined our thinking.

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WISE PRACTICES

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1 Indigenous Economic Justice and Self-Determination: Wise Practices in Indigenous Law, Governance, and Leadership the editors

Indigenous peoples in Canada are striving for greater economic prosperity and political self-determination. The research project that gave rise to this book sought to investigate specific legal, economic, and political practices that have furthered these goals. The project involved interviews with Indigenous political and business leaders. They were asked questions about their experiences pushing for economic justice and self-determination. What barriers do they face? What solutions have they found? How do they measure or conceive of success in these contexts? By asking these types of questions, we sought to understand the issues not in terms of sweeping empirical findings, but in terms of the particular experiences of individuals and communities. The findings of that project are summarized in chapter 3 of this book. The remainder of the book has been built around the themes that emerged from this project. This book’s central argument is that self-determination, including jurisdiction over lands and natural resources, is closely linked to social and economic development. Article 3 of the United Nations Declaration on the Rights on Indigenous Peoples (UNDRIP) recognizes this connection: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”1 Colonization has undermined precisely this form of self-determination to the detriment of the social and economic development of Indigenous peoples. As the ­preamble to UNDRIP states: [I]ndigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.2

4  The Editors

Political self-determination is the mechanism that allows Indigenous peoples to pursue sustainable social and economic development “in accordance with their own needs and interests.” Self-determination also ensures that the values and aspirations of particular Indigenous peoples determine how the success of development initiatives is defined. As the most comprehensive empirical studies in the field have shown, this is desirable not only on a principled basis but also because self-determination positively impacts development outcomes.3 The use of the terms “economic development” and “economic justice” throughout this introduction and volume reflects the importance of determining development goals in accordance with Indigenous values and priorities. We use the term “economic development” with some caution. At its most basic, economic development means increasing material wealth. The broader term “social and economic development” connotes not only an increase in material wealth but also a concomitant increase in social well-being, as measured by education, health, employment, and so on. The term “development,” however, carries some baggage. This is owing partly to its use in the international development realm, particularly the “modernization theory” that dominated the post-war period and conceived of development as “an inevitable, evolutionary process of increasing societal differentiation that would ultimately produce economic, political and social institutions similar to those in the West. The outcome of this process would be the creation of a free market system, liberal democratic political institutions, and the rule of law.”4 Modernization theory conceived of development as a linear march towards the development of Western political and economic institutions. As such, modernization theory “proved to be an easy target for charges of ethnocentrism, evolutionism, invalid teleological reasoning, and naivete.”5 Both modernization theory and later market-based approaches associated with neo-liberalism and the Washington consensus attempted to portray development in a value-neutral manner by focusing on economic outcomes. This ignored the fact that “[e]conomic theory is not value-free but rather embodies a worldview that structures the questions it asks, the methods of inquiry it approves, and the answers it sees as appropriate.”6 Owing to its use in these contexts, the term “economic development” has a contentious history that for many calls to mind the imposition of Western values and priorities that simply perpetuate ongoing colonialism and exploitation. The term also recalls the civilizational theses of the nineteenth century, which construed Indigenous peoples as uncivilized and justified the imposition of colonial rule partly on that basis. Peter Fitzpatrick explicitly argues that the coherence of the notion of progress as it relates to law

Wise Practices in Indigenous Law, Governance, and Leadership  5

and economic development depends on the construction of notions of savagery.7 Partly in response to these concerns, development literature in the international context has largely moved away from universal solutions and prescriptions.8 We follow that reasoning in arguing that both the means and ends of development should be understood in light of specific contexts. This more “bottom up” conception of development aligns with that conceived by the drafters of UNDRIP. Article 23, for example, states that “Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development.”9 Preambular clause 16 states: [T]he Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, as well as the Vienna Declaration and Programme of Action, affirm the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development.

The term “economic justice” is more capacious and evokes the material realities of dispossession and marginalization more clearly. The point is not to “develop” to a point of parity with an imposed social and economic order, but to achieve material justice in relation to those orders. Economic justice therefore focuses more on wealth distribution, inequality, and the provision of services than economic development.10 ­Article 20(2) of UNDRIP speaks to this: “Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.”11 Yet we have chosen to use both phrases throughout this volume. To respect the diversity of Indigenous peoples and their beliefs, goals, and aspirations, we cannot impose a notion of what sort of development is appropriate. Brian Tamanaha argues that in the international context, development theorists in the West, from across the political spectrum, have often proposed solutions for the “developing” world in light of their own predetermined theoretical commitments.12 His caution is equally applicable in the Indigenous context. Indigenous Peoples, for practical and principled reasons, will seek various sorts of development that are grounded in their specific contexts and relate to various theoretical and political commitments. Indigenous peoples must be able to define what development means for them and how it relates to their notions of economic justice. To avoid essentializing Indigenous peoples and ensure that their “conceptual mobility” is respected, they themselves must

6  The Editors

guide notions of development and justice.13 Accordingly, there is not a single universal approach to economic development and justice.14 The chapters in this volume are bound together thematically through their emphasis on specific practices that fit within a broader argument and narrative about self-determination. This is one reason we have chosen to focus on the idea of wise practices, rather than best practices, when considering the field. Each chapter can be read as an example of a successful set of practices in law, economics, governance, or leadership, or an articulation of specific challenges to the development of those practices. Political self-determination is a key to successful social and economic development because it allows communities and nations to set their own measures of success and to ensure that economic projects are attentive to local conditions, needs, values, and goals. While the importance of Indigenous political self-determination may seem obvious as a matter of principle, Canadian federal and provincial law (collectively, “Canadian state law”) has struggled to find an appropriate relation to it in practice. On the one hand, Canadian state law, as expressed through the courts, has acknowledged the existence and legitimacy of Indigenous political self-determination; on the other hand, Canadian state law continues to place almost all final public decision-making power in the hands of the Canadian state (Parliament, provincial legislatures, federal and provincial governments, and Canadian courts). In this introduction, we take the opportunity to sketch key features of this tension, which shapes much of the economic landscape in which Indigenous nations and communities currently live. The question mark hanging over Canadian sovereignty is drawn by a fairly simple set of facts. First as the Supreme Court of Canada has repeatedly noted, “Canada’s Aboriginal peoples were here when Europeans came, and were  never conquered.”15 Moreover, the Indigenous peoples whom the Europeans encountered governed themselves according to their own legal systems grounded in their respective territories.16 As a result, the only valid legal basis on which Europeans could settle on Turtle Island and apply their own legal systems here was through negotiated agreements with the Indigenous peoples already here.17 Where treaties were never reached with Indigenous peoples, the Canadian state has no persuasive legal basis for its assertions of sovereignty.18 In those areas without treaties, or where the effect of historic treaties is disputed, it is the Canadian state that must accommodate itself to Indigenous legal systems that have been maintained and developed in spite of centuries of state encroachment.19 The illegitimacy of Crown assertions of sovereignty, in the absence of treaties, is not a radical proposition, but the so-called legal reality from the perspective of Canadian state law itself.20 The Supreme Court of Canada has acknowledged this reality in a number of cases.21

Wise Practices in Indigenous Law, Governance, and Leadership  7

While the Court has thus made clear that negotiated agreements with Indigenous peoples form the only honourable legal basis for European settlement and the establishment of European-derived legal systems,22 its statements at the same time acknowledge the de facto reality of Canadian state control over much economic development and resource extraction on Indigenous territories.23 Where law and fact diverge so drastically, any functioning legal system must have or develop mechanisms to bring factual reality in line, or at least in greater alignment, with legal principle.24 That is, at bottom, the purpose of a legal system; any legal system that lacks the tools for bridging that divide is a broken legal system.25 The Supreme Court of Canada has looked to section 35 of the Constitution Act, 1982 as a “tool kit” with which to help achieve the reconciliation of (de jure) Aboriginal sovereignty with (asserted/de facto) Crown sovereignty. And over the past decade and a half, the Court has settled on the honour of the Crown as the master concept organizing this tool kit. As the Court wrote in Haida Nation: Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.26

Thus, the honour of the Crown requires the Canadian state (federal government and provinces) to enter into treaty negotiations with Indigenous peoples in places where the Crown has asserted sovereignty without any legitimate legal basis for those assertions. Moreover, the honour of the Crown requires consultation and accommodation with Indigenous peoples where the state proposes action that could adversely impact asserted rights that have not yet been established in court or finalized in treaty negotiations. What of situations in which a treaty has been concluded, but disputes arise as to its interpretation and implementation? The Court has stated that the honour of the Crown applies to the implementation of treaties as well, and reconciliation is not a final state, but an ongoing process. Indeed, it should hardly be surprising that Indigenous peoples reject the interpretation of treaties that sees in them an abdication of political

8  The Editors

self-determination and an absolute transfer of land to the Crown. This surely could never be considered a “wise practice” on the part of Indigenous peoples. Rather, as many Indigenous leaders and scholars have insisted, and with due recognition for the particular circumstances of each treaty relationship, Indigenous negotiators generally understood treaties as agreements for welcoming newcomers and sharing the land with them. In some regions, such as the Maritime provinces, the treaties do not even purport to cede land. In other words, treaties provided a legal foundation on which newcomers could establish their own communities on Turtle Island, as the Supreme Court of Canada itself has recognized. Yet the Canadian state has long conducted itself as though it possesses ultimate decision-making authority over all questions of treaty interpretation and implementation and even over the justifiability of its own unilateral “infringements” (i.e., violations) of treaty promises. Surely, however, no Indigenous people ever concluded a treaty with the Crown on the understanding that Crown institutions would hold all final decision-making authority over the proper interpretation and implementation of the treaty, including the power to unilaterally renege on its own treaty commitments whenever it was satisfied that such violations were in the broader public interest. In sum, Canadian assertions of sovereignty run headlong into the immense gulf between, on the one hand, the de facto reality of Canadian state control over Indigenous territories and, on the other, the legal requirement that any such control be exercised only in accordance with negotiated agreements concluded and implemented in good faith by both Indigenous and Crown representatives. This brings us back to the question of mechanisms the Canadian legal system has developed to address this gulf, and to achieve the reconciliation of Aboriginal sovereignty with asserted Crown sovereignty. Unfortunately, the framework developed by Canadian courts under section 35 leaves all final decision-making power in the hands of Canadian state institutions. When the Crown believes it has fulfilled its obligations to consult Aboriginal rights-claimants, it is free to act in the face of disagreement, that is, even if the rights-claimants believe the Crown has not fulfilled its obligations. Even in the case of established section 35 rights, if the Crown believes it can justify actions that would infringe or adversely impact those established rights, it is free to pursue those actions in the face of disagreement with the rights-holders. In such cases, the rights-claimants or rights-holders may ask a court to review the Crown’s actions, arguing that the Crown has failed to fulfil its obligations. However, in every case the onus remains on the rights-claimants or rights-holders to bring the matter before the courts, no small burden

Wise Practices in Indigenous Law, Governance, and Leadership  9

given the cost of litigation, in financial terms as well as time, effort, and, often, political capital. Moreover, the courts in question are themselves, after all, domestic courts of the Canadian state. The political self-determination and economic initiatives of Indigenous nations and communities are thus significantly constrained by an apparatus that places final decision-making authority over lands and resources in Canadian state institutions. These constraints exist despite widespread recognition that political self-determination is a right that belongs to Indigenous peoples. Indeed, UNDRIP explicitly affirms this right. UNDRIP also affirms the right of Indigenous peoples to own, use, develop, and control their traditional lands: Article 26. Significantly, UNDRIP also requires states to develop in conjunction with Indigenous peoples concerned a process to recognize and adjudicate Indigenous rights. ­Article 27 reads: States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.27

The current Canadian process of recognition and adjudication under section 35 cannot be said to satisfy Article 27. Unilateral decision-making by the Crown, followed by possible review in Canadian courts, is not “a fair, independent, impartial, open and transparent process” that has been “establish[ed] and implement[ed], in conjunction with indigenous peoples.” In 2016 Canada announced that it is “now a full supporter of the Declaration [on the Rights of Indigenous Peoples] without qualification.”28 Canadian state law on Indigenous rights as it currently stands thus contains a defining tension, or contradiction: Indigenous peoples have the right to political self-determination (a right they never surrendered), yet all final decision-making authority over the exercise of this right and over Indigenous lands and resources remains in state institutions. Canadian state law contains signposts of possible ways forward. For instance, in 2014, the Supreme Court of Canada recognized the Aboriginal title of the Tsilhqot’in Nation over part of its traditional territory in British Columbia. The Court stated that Aboriginal title included the right of the title-holders (here the Tsilhqot’in Nation) to pro-actively manage

10  The Editors

the land, which must surely mean the right of the Tsilhqot’in Nation to govern the use of the land through Tsilhqot’in law. Unfortunately, to return to the defining tension discussed above, the Court reserved to the Crown the unilateral power to approve economic activity on Aboriginal title land, even contrary to the wishes of the Aboriginal title-holders, if the Crown can justify such activity “in the broader public interest.” Aboriginal title-holders who believe the Crown is engaging in unlawful activity on their land once again bear the burden of bringing the matter before the courts. This defining tension of Canadian Aboriginal law underscores the need for Canada to fulfil its promise to implement UNDRIP, notably Article 27 (quoted above) requiring Canada to establish, in consultation with Indigenous peoples, a process to recognize and adjudicate Indigenous rights. In the meantime, the defining tension of Canadian Aboriginal law looms large as a constraint on economic initiatives in Indigenous communities. Nonetheless, that has not prevented Indigenous peoples from pursuing economic initiatives and political self-determination. The chapters in this book can be understood as illustrations of the way foundations are being laid in Indigenous nations and communities for practising self-determination. Through these practices, Indigenous nations position themselves as politically self-determining relative to Canadian state law, ultimately pushing Canadian state law and actors to accept the reality and legitimacy of Indigenous political self-determination, which Canadian courts have acknowledged while struggling to implement. Part One: Facilitating and Framing Wise Practices Brian Calliou begins this section in chapter 2 by introducing his notion of “wise practices,” an adaptation of the “best practices” model applied to the unique circumstances of Indigenous nations. Calliou argues that the success or failure of given initiatives must be assessed in light of the specific values of given Indigenous peoples. What constitutes a “best” practice therefore must be considered in light of the circumstances in which decisions are being made, circumstances informed by the values and beliefs of the specific peoples in question. This orientation grounds approaches to development, governance, and law not in abstract ideals but in the specific practices of Indigenous peoples operating in a variety of distinct contexts. In chapter 3, Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle develop a paradigm framework for research in the emerging field of Indigenous community economic development. The authors address three principal themes: (1) the need to reconcile traditional

Wise Practices in Indigenous Law, Governance, and Leadership  11

and conventional approaches to economic opportunity drivers, (2) the foundational importance of governance with an understanding of its linkage to resources, rights, title, and institutions and policies, (3) and the need to build capacity in human capital through targeted programming and training relevant to community designed opportunity drivers. The authors draw on a number of theoretical contexts to make sense of diverse sets of empirical data, providing a comprehensive overview of this emerging field. The chapter culminates in the formal articulation of a paradigm for applied research in Indigenous community economic development. The emphasis on particular contexts again draws attention to the need to be attentive to that particular and localized contexts in which conceptions of governance and development are being played out. In this section’s final chapter, chapter 4, Robert Hamilton, Ryan Beaton, and Joshua Nichols address development and governance on the basis of interviews with Indigenous leaders in the political and business spheres and individuals working in Indigenous economic development in various capacities, from training, financing, and planning, to execution. The approach taken to the results of these interviews was not to attempt to extract a single empirical base of knowledge that would represent a pan-Indigenous experience. Rather, it was to gather a range of perspectives from those working in and around the economic development in Indigenous nations, primarily in British Columbia. The chapter articulates a range of perspectives on issues of economic development, looking at questions such as what is working, what is not working, what are barriers to economic development, what future opportunities exist, and what are the keys to taking advantage of those opportunities? While the interviews that informed this chapter identified a number of common themes, particularly in considering the harmful effect of state law and policy on the governance and development of Indigenous peoples, they also detailed how particular nations and communities are responding to those challenges in light of the specific contexts – cultural, economic, historical, geographic, and so on – in which they are operating. Part Two: The State of the Law The second part of the volume focuses on the current state of Canadian law and how that law is reinforcing barriers to Indigenous freedom in relation to Indigenous governance, law, and development. In doing so, it constructively critiques key aspects of legal doctrine while identifying the legal architecture that supports the asymmetrical legal relations identified as barriers to development in part one. In chapter 5, Joshua Nichols

12  The Editors

provides a case study of a lengthy legal battle over an Aboriginal right to fish commercially in British Columbia, the 2013 Ahousat decision. Nichols uses this case study to demonstrate the limits of the contemporary Aboriginal rights framework, illustrating the difficulty Indigenous peoples face in translating rights – even those recognized by the courts – into meaningful control over a resource or territory. This difficulty illustrates the limited utility of the rights regime, as currently constructed, in furthering self-determination and economic self-sufficiency. Ryan Beaton examines the fraught legal question of who has standing to bring Aboriginal rights claims in chapter 6. Who, that is, may speak on behalf of an Indigenous community in a Canadian court of law? The law in this area is unsettled, yet of considerable strategic significance for Indigenous communities and individuals considering advancing their claims through the litigation process. To the extent to which Aboriginal rights may be used as a tool to prevent certain Crown actions or open up space for Indigenous jurisdiction, the question of who, according to the Canadian courts, may direct and wield this tool, is of considerable importance. In chapter 7, Darcy Lindberg examines the relationship between dominant modes of law and the reproduction of forms of social ignorance that contribute to the erasure of Indigenous legal traditions. In examining the effects of this, Lindberg points towards alternative conceptions of law and explores how some of these conceptions could be used to improve the economic prosperity of Yukon First Nations. Part Three: Alternatives in Practice The third and final section of the volume brings together four pieces that examine alternatives to the barriers to Indigenous law, governance, and development outlined in the volume’s first sections. These chapters do not, however, posit alternatives in the abstract. Rather, they identify specific practices of Indigenous peoples that are already being used to challenge unjust relations and reconfigure their relations with state and other actors. Through identifying these practices, opaque structures of colonial rule become transparent and are shown to be a veneer masking a lived reality of diverse practices of legal pluralism in economic affairs. In this way, these final chapters take up Brian Tamanaha’s injunction that “[m]ore than anything else, law and development needs clear-eyed presentations of positive uses of law.”29 In chapter 8, Miles Richardson explores the history and present state of the relationship between Indigenous peoples and the Crown in Canada, and the need to immediately implement the federal government’s

Wise Practices in Indigenous Law, Governance, and Leadership  13

recent policy commitment to a renewed nation-to-nation relationship between Indigenous nations and Canada. Richardson also shares insight into the methods by which Indigenous nations and Canada could move forward in this effort, calling on his experience both with the British Columbia Treaty Commission and as a leader of the Haida Nation, which developed and implemented its own constitution and asserted its ancient jurisdiction with modern legislation, including comprehensive land and marine use plans over their territory. John Borrows in chapter 9 provides an interpretation of the relevant laws and international conventions in Canada, the United States, and Mexico that should be considered within a wise practices regime for companies working with Indigenous peoples. He does so by identifying developing trends related to Indigenous jurisdiction over land and resources and their potential implications for corporate and government activities and by identifying laws related to consultation and/or engagement of Indigenous peoples that can be delegated to corporations that are contradictory or at variance across the three countries. His findings highlight the importance of relationality and attentiveness to the broader contours of specific decision-making contexts. In chapter 10, Robert Hamilton examines how Indigenous nations have overcome some of the challenges identified in earlier chapters by working around or bypassing Canadian law, relying instead on Indigenous law or international law to find legal solutions to the problems faced in their relations with the state and in structuring relations that can lead to positive social and economic outcomes. The chapter identifies three examples of the use of Indigenous law and three examples of the use of international law, arguing that the chosen examples represent viable alternatives to engaging the Canadian legal system through conventional assertions of Aboriginal rights. In the process, this chapter provides an overview of the developing literature on Indigenous law and legal pluralism in Canada. In chapter 11, the volume’s final chapter, Vanessa Udy looks at tensions between existing Canadian intellectual property law and Indigenous property laws regarding the use and protection of intangible cultural property, including crests and formline art. As a case study, Udy examines issues surrounding a totem pole that was gifted by the Kwakwaka’wakw Nation to the University of British Columbia to make good the “Thunderbirds” name for its varsity sports team. Through this study, Udy illustrates how Indigenous legal systems create rights and obligations that not only inform how Indigenous peoples understand particular conflicts, but how those principles may be relied on in mediating relations between Indigenous and non-Indigenous Canadians.

14  The Editors

Conclusion This volume speaks to fundamental issues about the self-determination of Indigenous peoples as it relates to economic justice and sustainability. It strives to do so in a manner that disclaims reference to universals, either as a grounding for political community or as guiding practices for social and economic development. This is one of the reasons most chapters have focused on the contextualized use of wise practices. Considering the distinct lived realities and social circumstances of Indigenous peoples aids in resisting sweeping generalizations. We hope readers will be similarly wary of single-cause explanations or solutions to the questions addressed in this book. At the same time we trust that a few salient observations have emerged to highlight how economic justice might be pursued in specific instances. We would follow Trebilcock in suggesting that “cautious, middle-level generalizations are often possible with respect to particular policy challenges.”30 Our hope is that placing a range of disparate practices in conversation may point to areas where some such cautious conclusions may be drawn. NOTES 1 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR (2007), Article 3, https://www.un.org/development/desa /indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E _web.pdf. 2 Ibid. at preambular clause 6. 3 Stephen Cornell and Joseph P. Kalt, “Where’s the Glue? Institutional and Cultural Foundations of American Indian Economic Development” (2000) 29 Journal of Socio-Economics 443. 4 Brian Tamanaha, “The Lessons of Law-and-Development Studies” (1995) 89:2 American Journal of International Law, 470 at 471. 5 Ibid. at 472. 6 Charles K. Wilber, “Economics and Ethics” in Charles K. Wilber and A ­ mitava Krishna Dutt, eds., New Directions in Development Ethics: Essays in Honor of Denis Goulet (Notre Dame: University of Notre Dame Press, 2010) at 157. 7 Peter Fitzpatrick, “Law’s Infamy by Peter Fitzpatrick” in Sammy Adelman and Abdul Paliwala, eds., Law and Crisis in the Third World (Strathcarron: Hans Zell Publishing, 1993) at 27–50 as cited in Tamanaha, supra note 4 at 476. 8 M.J. Trebilcock, “Between Universalism and Relativism: Reflections on the Evolution of Law and Development Studies” (2016) 66:3 University of Toronto Law Journal 331 at 332.

Wise Practices in Indigenous Law, Governance, and Leadership  15 9 UNDRIP, supra note 1 at Article 23. 10 See Stewart Acuff, “The Struggle for Economic Justice” (2000) 25:1 Labor Studies Journal 7; Charles R.P. Pouncy, “Economic Justice and Economic Theory: Limiting the Reach of Neoclassical Ideology” (2002) 14:1 University Florida Journal of Law & Public Policy 11; Robin Hahnel, Economic Justice and Democracy: From Competition to Cooperation (New York: Routledge, 2013). 11 UNDRIP, supra note 1 at Article 20(2). 12 Tamanaha, supra note 4 at 475, 484–5. 13 The term “conceptual mobility” was coined by John Borrows. See John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016) at 19–49. “There is an emerging consensus among development scholars (and to a lesser extent official development agencies) that contextual factors are of overriding importance in defining both the appropriate ends of development and feasible strategies for attaining them. More specifically, it has come to be widely recognized that the particularities of a given country’s history, culture, geography, political evolution, economic structure, and ethnic, religious, and demographic make-up, as well as a host of other country specific features, will importantly shape what is both desirable and feasible as a set of development strategies.” Trebilcock, supra note 8 at 333. 14 Trebilcock, supra note 8 at 335. 15 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73 at para. 25 (hereinafter Haida Nation). 16 Mitchell v. M.N.R., [2001] 1 SCR 911, 2001 SCC 33 at para. 10. 17 John Borrows, Canada’s Indigenous Constitution (Toronto: University of ­Toronto Press, 2010), see chap. 1 in particular. 18 Haida Nation, supra note 15 at para. 20: “Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty…” 19 This is the thesis in Heidi Stark, “Respect, Responsibility, and Renewal: The Foundations of Anishinaabe Treaty Making with the United States and ­Canada: (2010) 34 American Indian Culture and Research Journal 145. 20 The Supreme Court of Canada recognized that the doctrine of discovery “does not make sense”: “Because it does not make sense to speak of a burden on the underlying title before that title existed, aboriginal title crystallized at the time sovereignty was asserted,” Delgamuukw v. British Columbia, [1997] 3 SCR 1010 at para. 145. For a critique of the Court’s crystallization theory, see John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw v. the Queen” (1999) 37 Osgoode Hall Law Journal 537. 21 Section 35(1) of the Constitution Act, 1982, in particular, “renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown, R. v. Sparrow, [1990] 1 SCR 1075 citing Professor Noel Lyon in “An

16  The Editors Essay on Constitutional Interpretation” (1988) 26 Osgoode Hall Law Journal 95 at 100. 22 Haida Nation, supra note 15 at para. 20: “Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims: R. v. Sparrow, [1990] 1 SCR 1075, at pp. 1105–6.” 23 Ibid. at para. 32: “This process of reconciliation flows from the Crown’s duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people.” 24 The relationship between legality and legitimacy when considering Quebec Secession claims in found in Reference re Secession of Quebec, [1998] 2 SCR 217 at paras. 33. 47, 83, 86, 89, 141–4. 25 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 SCR 388 at para. 1: “The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to aboriginal people’s concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies.” See also Reference re Secession of Quebec, [1998] 2 SCR 217 at para. 108: “… the contention that the law may be broken as long as it can be broken successfully … is contrary to the rule of law, and must be rejected.” 26 Haida Nation, supra note 15 at para. 25. 27 UNDRIP, supra note 1 at Article 27. 28 “Fully Adopting UNDRIP: Minister Bennett’s Speech at the United Nations,” May 2016, Indigenous and Northern Affairs Minister Carolyn Bennett at the 15th session of the United Nations Permanent Forum on Indigenous Issues, http://www.northernpublicaffairs.ca/index/fully-adopting-undrip -minister-bennetts-speech/. 29 Tamanaha, supra note 4 at 476. 30 Trebilcock, supra note 8 at 335.

2 A Wise Practices Approach to Indigenous Law, Governance, and Leadership: Resistance against the Imposition of Law brian calliou

Introduction Indigenous communities today in Canada aspire towards selfdetermination and self-sufficiency. Their leaders are becoming more proactive with strategies that build upon their constitutionally protected rights, which see them organizing, lobbying, negotiating, litigating, and sometimes partnering with external parties in order to advocate for their communities’ interests.1 While some Indigenous communities are becoming very successful in their business development with the result that their unemployment numbers and social issues have declined, there are still many communities that suffer from high unemployment rates, high dropout rates in education, a variety of social problems, and dependency. Furthermore, Indigenous culture and practices have been severely impacted. How did this come about? Why are Indigenous peoples in Canada at the lowest rung of the socio-economic ladder? Why are so many in a state of dependency? And, on the other hand, why are some communities becoming so successful? I will use the concept of the imposition of law to explain how Indigenous people were removed from the land and resources by Canadian laws and policies. Such laws and policies cleared the path so that settlers could exploit the resources for their own benefit, resulting in Indigenous peoples’ marginalization, loss of control of their autonomy, along with the loss of much of their culture and traditions. Furthermore, in this chapter I also want to focus on Indigenous peoples’ agency, that is, the actions they have taken in resistance to external control, as well as the actions they have taken towards economic justice and their own self-determination. I will focus specifically on a wise practices approach to community economic development made up of seven factors that Indigenous peoples have effectively used to achieve positive change and

20  Brian Calliou

economic success. These seven elements of success are completely within local control and, when adapted and acted upon, can lead to positive change. Through a review of literature on best practices in Indigenous community economic development, we established a model or approach called wise practices that sets out these seven factors of success. Indigenous communities or organizations that are competent in implementing these seven factors, are between 400 and 500 per cent more likely to be successful than those who do not.2 This wise practices approach gives agency to Indigenous leaders and also creates the space for Indigenous knowledge and experience to be expressed and practised. Thus, as Indigenous leaders build up capacity within their communities, they are in a stronger position in their struggles for self-government and in their dealings with governments and industry. Imposition of Law The concept of the imposition of law can help explain how Indigenous peoples have been marginalized from our economy and from mainstream Canadian society. Aboriginal law in Canada, along with our recorded history, recognizes that Indigenous peoples were here when European settlers arrived, and were living in organized societies, with their own laws, forms of governance and leadership, and in defined territories.3 The new settlers were a minority at the outset, but with the growth in their numbers, they quickly expanded into new areas and entered into compacts or agreements with the Indigenous peoples they encountered. These peace and friendship agreements were also trade agreements where Indigenous peoples could trade, sell or barter their harvesting products. The new settler population asserted sovereignty over these “new found lands” in the name of their king, asserting jurisdiction and imposing external laws. Imposition of law is a concept used by social scientists to explain many of the relationships between imperial governments and the Indigenous peoples they encountered. It can be defined as imposed law when “it does not reflect the values and norms of … that segment which will be subject to it.”4 Imposition of law encompasses any situation where “fundamental change is contemplated in society through the medium of laws or legal institutions whose content is clearly contrary to the perceived or accepted normative order of those whose behaviour it seeks to regulate or change.”5 Canada is a liberal democracy based upon liberal ideology that values individualism as the basic moral agent whose individual freedoms are paramount over society, a belief in human control over nature, land as a commodity, and private ownership to the exclusion of others.

Resistance against the Imposition of Law  21

Such values do not at all reflect the values of Indigenous peoples who believe in collectivism, sharing of land and resources, a spiritual connection with the land, and coexistence with nature. Imposed laws and policies in Canada also reflected strong Christian ideas that the Indigenous peoples settlers encountered were the “Other” who were incapable of having any kind of ownership of their territories. Indeed, Gail Kellough has argued, “Colonizers needed a set of pseudo-justifications for themselves as well as a stereotyped image of those they were colonizing. In order to justify exploitation, Indians were seen as inferior to Europeans and the development of their lands as an inevitable part of the destiny of mankind.”6 Imposed laws and policies include imposition of the Indian Act, which displaced traditional governance and leadership practices with the European municipal style governance structure of a chief and council. Furthermore, the imposition of the Indian Act also imposed a legal entity of who was and was not an “Indian” thereby excluding many from membership in their own communities.7 Alexandra Witkin argues, in the case of the United States where similar citizenship was also imposed upon Native Americans by an external government, that such imposition of citizenship “can be seen as an ultimate act of domination by a relentless alien power.”8 Hunting, fishing, and trapping laws were also imposed upon Canada’s Indigenous peoples, criminalizing a way of life, even though such imposition breached treaty promises to continue the protection of traditional livelihoods.9 Treaties and private property laws displaced Indigenous peoples from their traditional lands. Economist Irene Sprye lamented the loss of the commons when common lands of the Indigenous peoples was turned into an open access resource for private ownership and led to First Nations’ “economic degradation.”10 Thus, the removal of Indigenous peoples off their lands and onto small reserves opened up the land for settlers to exploit it. As Douglas Sanders argues, the “treaties and the reserves were part of a fascinating piece of social planning designed to shift the economic basis of native people to facilitate non-native settlement.”11 The laws and policies imposed also sought to restrict ceremonial practices such as the Sun Dance and the Potlatch in order to assimilate Indigenous peoples into Christianity.12 The imposition of policies of assimilation also led to the implementation of residential schools and child welfare laws that removed children from their families and communities.13 The imposition of laws and policies by colonial governments have led to significant, negative impacts on Indigenous peoples’ culture, traditional laws, governance, and leadership. Indeed, Indigenous communities suffered under oppressive laws and policies that led to

22  Brian Calliou

their marginalization and therefore their underdevelopment and dependency.14 In other words, as one social scientist argues, in liberal democracies like Canada, the Indigenous peoples have been transformed into “politically weak, economically marginal and culturally stigmatized members” of these national societies.15 This social malaise is the result of the historical trauma experienced as a result of policies and actions of colonial governments.16 However, it must be noted that Indigenous peoples never passively accepted the imposition of laws and policies upon them. In fact, they resisted in a variety of ways and even used the legal and political system to advocate for and protect their interests. Resistance and the Utilization of the Imposed Laws Robert Kidder argued that although the notion of the imposition of laws has generally been used in the colonial context and referred to as “a one way process of commands backed by a superior force,” it should instead be viewed in a more integrated way as “an interactional process affected by power differentials.”17 Thus, Kidder argues that even in the colonial context, the imposition of laws is, in fact, a two-way process that reflects a power relationship and that we can learn more if we adopt “an interactive model that distinguishes between external law and assess the role and sources of power at different levels.”18 In this view, the oppressed in fact react in various ways to the imposed laws, policies, and institutions. The oppressed have power and agency, even though they might be in an unequal power relationship. This view recognizes the agency of Indigenous peoples and provides a lens for us readers to see their actions, including their resistance and their struggles for social justice. Indigenous peoples never did acquiesce to colonial rule and the imposition of laws and policies. For example, right from the start Indigenous leaders voiced their concerns with the imposition of the Indian Act, with one leader noting that it did not meet their views and was an attempt “to break them to pieces,” arguing that it did not meet their desire to maintain their cultural integrity within their customary forms.19 Indeed, Miles Richardson, a Haida leader, essentially states the same thing in chapter 8 of this book. Indigenous peoples also resisted the imposed hunting, fishing, or trapping regulations by continuing their traditional livelihood and protesting that such restrictions were not consistent with the treaty promises made by the government.20 In response to laws and policies restricting cultural and ceremonial practices, many Indigenous peoples resisted by going underground in order to preserve them. Indeed, as Laurie Barron argues, Indigenous leaders “reacted to government

Resistance against the Imposition of Law  23

measures by consciously persisting in their traditional institutions, and in some cases, by devising or adopting counter-innovative techniques as an assertion of Indianness.”21 As part of the resistance and struggles for justice, Indigenous peoples are reclaiming their identity and culture and asserting their right to self-determination. Currently, there is a considerable movement among Indigenous peoples to decolonize and revitalize their nations, reclaim their culture and practices, and assert their place in Canadian society.22 The colonial experience was in many respects similar to Native Americans’ experience. Navajo scholar Manley Begay Jr. has argued that Indigenous leaders are now dealing with the effects of colonialism and they are now “responsible for the tasks of rebuilding, reuniting, reshaping, and revitalizing these nations.”23 Indigenous leaders work hard on reacting to various external factors, which include provincial and federal policies and government actions, globalization and the neo-liberal market driven economy, as well as rapid technological change. Indigenous leaders are now beginning to work internally, within their communities, to lead positive change and growth, while at the same time revitalizing their culture and nationhood. Despite the fact that imposed laws and policies have had negative consequences on Indigenous peoples, they have been resilient and have actually utilized these external institutional structures and systems to protect their unique identities and rights. Indeed as Michael Asch observed Canadian law reflects the culture of the settlers/colonists as it was imposed upon Indigenous peoples, there have been “moments when these institutions and values have been successfully challenged through the application of the rule of law.”24 From at least as far back as the early 1910s and 1920s, Indigenous leaders sought to use the “Whiteman’s law” and political system as illustrated by the Nisga’a Land Committee using the assistance of lawyers to petition the British Crown for their title and by Chief Deskaheh trying to get a hearing for the Six Nations at the world court of the League of Nations to argue for their sovereignty.25 As Indigenous peoples began to organize,26 they also began to lobby and litigate their interests and rights.27 John Borrows in chapter 9 of this book argues for cooperative wise practice relations with respect to economic development based on international law, consultation, environmental law, and Indigenous legal perspectives. The utilization of imposed law and policy has led to significant changes to the law so that Indigenous rights are now protected and governments and corporations are required to deal with Indigenous peoples meaningfully. Indigenous thought leaders are now revitalizing Indigenous legal traditions and philosophies for our contemporary lives.28

24  Brian Calliou

Culture Matters Culture does matter to Indigenous peoples, in all aspects of their work, including economic development.29 They do need to learn the tools of modernity, but also want to combine that knowledge with their own cultural values and knowledge. The knowledge, skills, attitude, and behaviours needed to carry out a specific job competently and that correlate to ones’ performance are known as a competency.30 However, an Indigenous perspective on competencies differs to some degree from mainstream competencies. Differences include a strong belief that an Indigenous leader must be knowledgeable and proficient in their identity and culture, including speaking their language and involvement in ceremonial activities.31 Another important difference is the spirituality that Indigenous leaders carry within themselves. Their spiritual belief and world view see them having a strong connection to the land and animals.32 They believe in the wisdom of their traditional knowledge. Furthermore, values and ethics differ between Indigenous leaders and mainstream leaders, affecting their characteristics and behaviours. Formal Indigenous leaders have a strong belief in the collectivity of their community, which is a claim that Richardson makes in chapter 8 of this book. They believe in a shared ownership of their lands rather than individual ownership.33 They have a passion for public-spirited leadership, that is, to work for the collective good of the entire community. They also practice shared decision-making, where a council of leaders work together, rather than one leader imposing their own perspective.34 These differing values and ethics make up this Indigenous perspective on competencies and have a strong influence on the way formal leadership is carried out in Indigenous communities. Geert Hofstede has argued that the failure of many international development initiatives during the 1960s and 1970s was partly due to the lack of cultural sensitivities in the transfer of work and management ideas.35 He led a movement exploring cultural differences in leadership and management,36 arguing that culture is the mind’s software and it programs the values and behaviours of leaders. The characteristics and competencies of Indigenous leaders differ from Western leaders and applies to all the areas that these formal leaders carry out their work including in community economic development.37 Indigenous Economic Development Indigenous leadership in economic development and social enterprise are important areas of growth and change in Indigenous communities

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across Canada. Scholars are beginning to describe a relatively new phenomenon in Indigenous entrepreneurship as the creation, management, and development of new ventures by Indigenous people for the benefit of Indigenous people.38 These scholars have commented that Indigenous entrepreneurship can be purely for profit or encompass broader social and economic benefits. Indigenous peoples are open to participating in economic enterprises, but they do so in an attempt to improve their social and economic circumstances, while at the same time seek to rebuild their communities on a traditional and culturally grounded foundation.39 Although Indigenous people are willing to move into the market economy, they attempt to do so on their own terms, that is, to be successful at it but also to protect their rights and culture.40 Robert Anderson sets out a contingency theory for Indigenous economic development where he acknowledges that there are world systems at play, where the global affects the local, and that Indigenous peoples’ role is contingent upon several factors, many of which are outside of their control, but many of which are under their control.41 In other words, the contingency theory takes agency and social relations seriously, thus emphasizing community-driven approaches to development. The contingency theory places much of the control into the hands of the community, where it ought to be, and rather than be idle victims, it allows for community leaders to be active agents of change. One important dimension that seems to recur is that many Indigenous businesses are collectively owned and more closely reflect a social enterprise, that is, an enterprise that makes a profit that is used for social purposes. One commentator describes this collective approach for setting social as well as economic goals as “tribal capitalism.”42 Another commentator calls this foray into the business world with band-owned enterprises as “capitalism with a red face.”43 Some scholars view this approach as a community orientation – a holistic approach where the citizens view their membership as part of a living organism where they have a reciprocal role to play for the smooth function of the whole.44 In support of this notion is a view presented by Lindsay Redpath and Marianne Nielsen using the “cultural dimension” of individualism versus collectivism made famous by Hofstede, that Indigenous cultures differ from non-Indigenous cultures by the core belief in collectivism rather than individualism.45 Although some scholars question whether this is a cultural characteristic or just a recent phenomenon resulting from the reserve system with its collective land tenure,46 most scholars agree that Indigenous economic enterprises reflect a collectivist ethos. Successful leadership in Indigenous community economic development is carried out by formal leaders who practise entrepreneurial

26  Brian Calliou

thinking. These successful Indigenous leaders applied what we describe as the business approach to self-government and community economic development.47 Rather than wait for the slow self-government negotiating process, they decided to be pragmatic and get more immediate results by adopting the business approach. They took the business approach to self-government by leading a team to be self-determining and no longer dependent upon transfer payments.48 They took capacity building seriously and worked to establish the institutions, systems, structures, and processes needed to run a stable government, set up community owned businesses and partnerships, and keep politics out of the businesses.49 Indigenous business leaders have expressed the importance of this training and capacity building as discussed in chapter 4 by Hamilton, Beaton, and Nichols, and have taken leadership and management development and training seriously. Educating and training Indigenous leaders, managers, and administrators in the community to be competent in all areas, means Indigenous communities will not be dependent on external experts and consultants. Therefore, Indigenous leaders need to consider ways to develop leadership skills in their communities. Training for leadership is an important element of successful community economic development.50 We know that the competencies contemporary Indigenous leaders need in order to lead their communities in the global market economy include traditional Indigenous knowledge and values, along with the modern knowledge and capabilities. This includes knowledge and skills related to nation rebuilding and community development, but also to economic development and good governance.51 Indigenous peoples face rapid change from external forces. They need to have the competency to adapt to such changes and to deal with increasingly complex problems. In order to have successful self-government, they have to have competency in their leadership, governance, and business development.52 The development of these competencies are within local control. Those Indigenous communities who have taken this notion seriously and invested in the development of their leadership, governance and business competencies are the success stories. By taking a strengths-based approach and developing the competencies within Indigenous communities and their organizations, they become proactive rather than reactive. We will focus on the internal factors that are within Indigenous communities’ control. While much of their leaders’ efforts need to work at influencing external parties as they make decisions that will impact them, many of the external factors are beyond their control. However, there are many factors that are internal that they have control over and when they effectively work such factors, they can be successful in leading positive change. By practising their agency, they can be competent in

Resistance against the Imposition of Law  27

developing their internal factors to be effective in achieving their interests and thereby revitalize their nations, communities, and organizations so that they are meeting their needs and aspirations. We will now turn our attention to what Indigenous leaders ought to have competence in knowledge and skills if they want to develop successful community economic development projects. In developing the wise practices approach to community economic development, we began with a literature review of best practices. We will now just give a sampling of this literature to illustrate how these multiple studies influenced our wise practices model. Best Practices in Indigenous Community Economic Development In order to design programs to develop leadership competencies for successful Indigenous community economic development, it is important to be familiar with the research literature in this area. Cynthia Wesley-Esquimaux and Brian Calliou conducted a literature review of best practices in Indigenous community economic development and produced a report entitled “Best Practices in Aboriginal Community Development: A Literature Review and Wise Practices Approach.”53 This literature review included research carried out by the Harvard Project on American Indian Economic Development, the Institute on Governance, the National Centre for First Nations Governance, the Conference Board of Canada, various federal government commissioned reports, the Royal Commission on Aboriginal Peoples, and other researchers who documented which kinds of factors lead to successful Indigenous ventures. Each of these reports identified certain elements that are believed to be instrumental in the success of Indigenous business, organizational, or community development, and therefore, areas of knowledge and skills that leaders would need to be competent in. I will briefly highlight three sets of this best practices research to give a sense of the factors of success that emerged in these studies. The best known area of research is that of the Harvard Project on American Indian Economic Development that identified the following four elements of success: (1) de facto sovereignty, that is, the exercise of local autonomy; (2) effective institutions that reflect cultural values; (3) strategic direction, that is, long-term strategic visioning and planning; and (4) strong, action-oriented leadership.54 In their later publications, Stephen Cornell and Joseph Kalt actually divide the second element into two: (1) building effective governing institutions; and (2) building governing institutions that match Indigenous political culture.55 Human Resources Development Canada produced a report on Indigenous social and economic development that set out lessons learned.

28  Brian Calliou

It concluded in this study that the important factors that led to successful Indigenous social and economic development included the following: governance; planning and policy development; control over resources and funding arrangements; program delivery and management; accountability; capacity building; and other requirements such as coordination across programs, combining human resources and economic development, and linking education and training to employment.56 The Conference Board of Canada carried out a variety of research into Indigenous business and economic development. In one report examining ten Indigenous communities the Conference Board identified six key factors to success in creating wealth and employment as part of economic development efforts: (1) strong leadership and vision; (2) strategic community economic development plan; (3) access to capital, markets, and management expertise; (4) good governance and management; (5) transparency and accountability; and (6) the positive interplay of business and politics.57 In another report on best practices in Indigenous businesses, the Conference Board isolated the following nine key factors for success: (1) purpose; (2) clear corporate vision; (3) winning attitude; (4) use of creativity to overcome obstacles; (5) good location; (6) experience and expertise; (7) hiring people from outside community if necessary; (8) ­recruitment and retention; and (9) developing partnerships.58 In yet another study, the Conference Board looked at ten case studies and formed a conclusion based on three main key factors to success: (1) leadership; (2) sound business practices; and (3) strong relationships and partnerships.59 This gives an example of the kinds of key success factors that these best practices studies identified. From this literature review, a wise practices model was developed featuring the seven factors of success: identity and culture; leadership; strategic vision and planning; good governance and management; accountability and stewardship; performance evaluation; and collaboration, partnerships, and external relationships. Each of these is explored below. Wise Practices When building our wise practice model, we adopted the term “wise practices” instead of “best practices” since there is a growing scepticism about the universality of best practices. Some commentators argue that it cannot be assumed that what is successful in one situation, context, or culture can automatically work in another completely different one.60 Others argue that the supposed objective, universal standard of best practices may not be able to take into account the differing contexts,

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values, subjectivity, and plurality and may not accommodate “multiple perspectives, interpretations of criteria.”61 Still others have argued that best practices in adult education run the risk of eroding the traditional grounding in an ethic of the common good and of social justice.62 Furthermore, what criteria do we use to determine what is “best” as a practice? It is often a Western corporate standard that reflects a certain ideological lens – that of the neo-liberal market. Cornell argued that Indigenous peoples in the United States have a different view of success than main-stream middle-class persons.63 Material possessions and personal wealth are not necessarily the measure of what is best for Indigenous peoples. Since there is an assumption that a Western standard of success is universal, best practices do not provide for local or Indigenous knowledge and experience. Our adoption of the term “wise practices” does make space for local Indigenous knowledge and experience and therefore resonates with Indigenous leaders. Wise practices can be defined as “locally-appropriate actions, tools, principles or decisions that contribute to the development of sustainable and equitable conditions.”64 Wise practices do not aspire to be universal, but instead are “idiosyncratic, contextual, textured, and not standardized.”65 There is wisdom in every Indigenous community economic development success story. Furthermore, there is wisdom and strength in every Indigenous community, and development should proceed on that basis. There is a growing interest in the study of wisdom by leadership and organizational studies scholars. They see there is a need for wisdom to be learned and practised by current leaders, managers and business persons who have to make important decisions in this period of rapid change, uncertainty, and paradox, while considering the welfare of others and the planet.66 One commentator argued that wisdom requires a leader to respect “tradition and experience” and the issues a leader faces can be “considered reflexively from a cultural-historical perspective.”67 Local Indigenous knowledge and wisdom ought to be part of any leadership development along with the knowledge and skills required of contemporary competencies. We adopt the term wise practices that provides for local knowledge and experience. That is, a wise practices approach makes space for Indigenous knowledge and experiences. There is a recognized need to return to and invigorate ancestral wise practices that reassert fundamental belief structures, values, and practices. This revitalizing traditional ways will ensure that Indigenous peoples will continue to reconnect their traditions and practices to their role in the modern world. Along with the literature review and competency map research we undertook, it is

30  Brian Calliou

this blended approach of local traditional knowledge and best-practices competencies that informs our wise practices model. In what follows, each of these key success factors are explored in relation to some of the literature in each of these areas, and each of these factors of success will be related to three successful Chiefs: Terrance Paul of Membertou First Nation,68 Tammy Cook-Searson of the Lac La Ronge First Nation,69 and Clarence Louis,70 as examples. 1. Identity and Culture The first key factor is identity and culture, which Indigenous leaders and scholars have increasingly expressed is an important area of knowledge that contemporary Indigenous leaders need to be competent in. Leaders must have a strong understanding and grounding in their culture, traditional knowledge and values, and their people’s historical connection to their traditional territories.71 Our competency map research supports this proposition.72 Indigenous scholars have also argued that identity and cultural knowledge are important factors in which Indigenous leaders should have competency.73 Chiefs Terrance Paul, Tammy Cook-Searson, and Clarence Louis are each well taught about their community history, culture, and identity. They also reinvest some of the profits into community cultural programs for the youth to maintain their cultural identity. 2. Leadership The second key factor to success that we identified is leadership, which has no consensus on a definition. Warren Bennis and Burt Nanus define leadership as that which “gives an organization its vision and its ability to translate the vision into reality.”74 In other words, leadership is a verb and refers to action taken by someone who leads others with a vision or a cause and persuades them into action and thus into results. Both Joseph Rost and Gary Yukl who reviewed leadership definitions argue that leadership involves the notion of persuasion and influence over others to get them to act.75 Leaders must therefore be action-oriented in order to motivate others to bring ideas to action, lead change, and achieve results for the organization or community. More scholars are arguing that leadership is not about one great leader, but rather is about shared leadership, or collective approaches to leading social change and social justice.76 Chiefs Terrance Paul, Tammy Cook-Searson, and Clarence Louis all personify successful Indigenous leadership since they have each led the building of their self-government systems along with successful

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community economic development ventures. Each chief along with their teams practices shared leadership. 3. Strategic Vision and Planning The third key factor is strategic vision and planning, which means that leaders need to be systems thinkers who take a holistic approach to setting out a long-term strategic vision and a corresponding strategic plan. Leaders make meaning for the followers through their vision and therefore inspire and motivate them to give maximum effort in implementing the ideas into action and results. Strategic plans also provide a mechanism for decision-making, where decisions made on the use of scarce resources and possible new initiatives must align with the vision and plan.77 It allows community leaders to be proactive rather than reactive. Chiefs Paul, Cook-Searson, and Louis worked with a team to set out a strategic direction and to put long-term plans in place that motivated others to implement and achieve economic and social success. 4. Good Governance and Management The fourth key success factor we identified combines good governance and management. Leaders must establish structures, systems, and processes that provide for good governance and effective management if they want to achieve successful and sustainable organizations and businesses.78 Building effective governing institutions and management processes allows for leaders or managers to come and go, and the government, organization, or business can continue to operate effectively. Stable governance and management sends a strong message to potential external partners that they can rest assured that the Indigenous government, organization, and business operates professionally. Indeed, an excellent example of this is the leadership taken by Chief Terrance Paul and his team of leaders from Membertou First Nation who obtained ISO certification and were thereafter able to secure several partnerships with multinational corporations. Chiefs Tammy Cook-Searson and Clarence Louis also led teams who set up good governance institutions and effective management systems to achieve economic and social success. 5. Accountability and Stewardship The fifth factor for success is accountability and stewardship. Leaders and managers act as stewards of the community resources, making decisions that are in the best interests of the community members. Since they

32  Brian Calliou

are in a powerful role with significant responsibilities, they are accountable to the community or organization for their decisions and actions.79 Leaders and managers are thus expected to meet a high standard of accountability. By being transparent in their decision-making and spending, they build trust among their own staff as well as with the community. By openly reporting regularly on how their decisions are made, how scarce resources are being used, and whether results are achieved, leaders and managers illustrate how they practise stewardship leadership in an accountable way. Chiefs Paul, Cook-Searson, and Louis illustrate this element of success by practising stewardship leadership and accountability with them openly reporting to their members through regular community meetings and newsletters. 6. Performance Evaluation The sixth key factor is performance evaluation and relates to leaders being accountable and practising stewardship of community or organizational resources. Evaluation of performance is a method to track if the decisions made and dollars spent on specific initiatives achieved the desired results. It is a feedback loop that provides data that the outcomes are being achieved and that there is impact of the investment. Performance evaluation of the initiatives undertaken by leaders and managers ensures that they achieve the most value for every dollar spent.80 Evaluation of the performance of human resources is also an important part of performance management of any organization and ensures that staff performance is tied to the strategic objectives and that results are being achieved.81 There is now a growing literature critiquing evaluation approaches and calling for an Indigenous framework that makes room for culturally appropriate evaluations.82 Chiefs Terrance Paul, Tammy Cook-Searson and Clarence Louis have performance evaluation mechanisms in place to ensure they are tracking the implementation of their strategic plans, to ensure programs are effective, and that staff are performing well. 7. Collaborations, Partnerships, and External Relationships Finally, the seventh key factor of the wise practices model to success is collaborations, partnerships, and external relationships. External relationships and partnerships are often necessary for an Indigenous community’s success since they need external financial and other support systems. They would need trading partners, either suppliers or clients, for their business ventures. There is a trend towards more Indigenous

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communities collaborating with each other, including forming cooperatives or entering into partnerships or joint ventures.83 Chiefs Paul, Cook-Searson, and Louis each set up companies through partnerships, but also set up social programs through partnerships in order to achieve social and economic success for their respective community. Indigenous community leaders also expressed the success of their partnerships in the discussion presented in chapter 3 of this volume. Through our literature review of Indigenous best practices, we were able to provide an empirical basis for our wise practices seven elements model. This wise practices model can guide Indigenous leaders into the areas of knowledge and skills that they would have to develop in themselves and their followers in order to achieve successful community economic development. Conclusion As Indigenous communities continue to face rapid change from external forces they are in need of competent leadership to adapt to such change. They are, and have been, working hard at protecting their rights, their lands, and their culture. They have used the imposed laws and policies to litigate, lobby, and negotiate for their interests and for social and economic justice. They are asserting their inherent right to be self-determining and many have begun to revitalize their Indigenous legal traditions. As Robert Anderson argues in his contingency theory for Indigenous economic development, many factors are within Indigenous communities’ control, such as our governance, our laws, our culture and traditional knowledge, and our ability to act in a proactive manner. Change is inevitable, but Indigenous people have been resilient and are always able to adapt. The development and training of leaders is important in this respect. They must learn modern leadership, management and business knowledge, and skills to operate effectively in this global market but they must also continue to learn and practise their own traditional knowledge and cultural practices. Thus, they must learn to become competent as strategic thinkers who set long-term goals for the benefit of their community, take action, and remain focused during the implementation of strategic initiatives, evaluate for performance, all the while supporting and meeting community needs and aspirations, including preservation of their cultural identity. Such leadership development prepares the community, its administrators, and its members to adapt to the external changes they face and to build the internal capacity required to operate their government, businesses, and organizations effectively. For leadership development

34  Brian Calliou

and business development, Indigenous peoples are seeking a blended approach to their training, where traditional Indigenous knowledge is learned along with the knowledge and skills of the modern business world. Furthermore, successful Indigenous leaders used what we refer to as the business approach to self-government, and the chiefs profiled above illustrate the success of this approach. Indigenous business leaders make statements supporting these conclusions in chapter 4 of this volume. We use the concept of wise practices, in contrast to best practices, because best practices tend to present a corporate, neo-liberal model of what is best or what success means. Best practices do not provide for local or Indigenous experience and knowledge. Wise practices allows for Indigenous experience and knowledge to play a prominent role in community economic development. We make the assumption that others can learn from Indigenous case study stories of success and that there is wisdom there to be shared. We also assume that the community leaders reading or learning about such Indigenous success stories will begin to realize that their own community has wisdom, assets and strengths. In other words, each community can take the strengths-based approach to development, building upon the assets they have available. They can be inspired by success stories and develop their knowledge and skills around the wise practices model. The economic success that can be achieved through our wise practices model is not merely for wealth accumulation, but also for the public good, for making the world a better place, and for preservation of the particular Indigenous culture. This quadruple bottom line has been described as “tribal capitalism” and as “capitalism with a red face.” NOTES 1 Brian Calliou, “From Paternalism to Partnership: The Challenges of Aboriginal Leadership” in Olive Patricia Dickason and David Long, eds., Visions of the Heart: Canadian Aboriginal Issues, 3rd ed. (Oxford: Oxford University Press, 2011) at 258. 2 Cynthia Wesley-Esquimaux and Brian Calliou, “Best Practices in Aboriginal Community Development: A Wise Practices Approach” (2010) [unpublished report for the Banff Centre, Indigenous Leadership]; Brian Calliou and Cynthia Wesley-Esquimaux, “A Wise Practices Approach to Indigenous Community Development in Canada” in Cora Voyageur, Laura Brearley, and Brian Calliou, eds., Restorying Indigenous Leadership: Wise Practices in Community Development, 2nd ed. (Banff: Banff Centre Press, 2015) at 31; Brian Calliou, “Leadership and Management: Competencies for Indigenous

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3

4 5

6

7

8

9

10

11 12

Community Economic Development” in Keith G. Brown, Mary Beth ­Doucette, and Janice Esther Tulk, eds., Indigenous Business in Canada: Principles and Practices (Sydney: Cape Breton University Press, 2016) at 38. Brian Slattery, “The Hidden Constitution: Aboriginal Rights in Canada” in Menno Boldt and J. Anthony Long, eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985) at 114; see also Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511; and Mitchell v. M.N.R. [2001] 1 SCR 911; R. v. Van der Peet [1996] 2 SCR 507. Sandra B. Burman and Barbara E. Harrell-Bond, eds., The Imposition of Law (New York: Academic Press, 1979) at xiii. H.W.O. Okoth-Ogendo, “The Imposition of Property Law in Kenya” in Sandra B. Burman and Barbara E. Harrell-Bond, eds., The Imposition of Law (New York: Academic Press, 1979) at 147. Gail Kellough, “From Colonialism to Economic Imperialism: The Experience of the Canadian Indian” in John Harp and John R. Hofley, eds., ­Structured Inequality in Canada (Scarborough: Prentice-Hall, 1980) at 359. Cora J. Voyageur and Brian Calliou, “Various Shades of Red: Diversity Within Canada’s Indigenous Community” (2000–2001) 16 London Journal of Canadian Studies 103. Alexandra Witkin, “To Silence a Drum: The Imposition of United States Citizenship on Native Peoples” (1995) 21:2 Historical Reflections 353; see also Frances Svensson, “Imposed Law and the Manipulation of Identity: The American Indian Case” in Sandra B. Burman and Barbara E. Harrell-Bond, eds., The Imposition of Law (New York: Academic Press, 1979) at 69. Brian Calliou, “The Imposition of State Laws and the Creation of Various Hunting Rights for Aboriginal Peoples of the Treaty 8 Territory” (1999– 2000) 1:1 Lobstick: An Interdisciplinary Journal “Special Premier Issue – Treaty 8 Revisited: Selected Papers on the 1999 Centennial Conference” 151; Frank Tough, “Game Protection and the Criminalization of Indian Hunting in Ontario, 1892–1931” [unpublished research report for the Ontario ­Native Affairs Secretariat], June 1994; Dan Gottesman, “Native Hunting and the Migratory Birds Convention Act: Historical, Political and Ideological Perspectives” (1983) 18 Journal of Canadian Studies 67. Irene Sprye, “The Great Transformation: The Disappearance of the ­Commons in Western Canada” in Richard Allen, ed., Man and Nature on the Prairies (Regina: Canadian Plains Research Centre, 1976) at 21. Douglas Sanders, “Native People in Areas of Internal National Expansion” (1973–74) 38 Saskatchewan Law Review 85. Katherine Pettripas, Severing the Ties That Bind: Government Repression of Indigenous Religious Ceremonies on the Prairies (Winnipeg: University of Manitoba Press, 1994); see also Douglas Cole and Ira Chaikin, An Iron Hand upon the

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13

14

15

16 17

18 19

20

21 22

23

24

People: The Law against the Potlatch on the Northwest Coast (Vancouver: Douglas and McIntyre, 1990). J.R. Miller, Shingwaulk’s Vision: A History of Native Residential Schools ­(Toronto: University of Toronto Press, 1996); John S. Milloy, A National Crime: The C ­ anadian Government and the Residential School System – 1879 to 1986 ­(Winnipeg: University of Manitoba Press, 1999); M. Kline, “Child Welfare Law, ‘Best Interests of the Child’ Ideology, and First Nations” (1992) 30:2 ­Osgoode Hall Law Journal 375; Patricia Monture, “A Vicious Cycle: Child Welfare and the First Nations” (1989) 3 Canadian Journal of Women and the Law 1. James Frideres, “Institutional Structures and Economic Deprivation: Native People in Canada” in B. Sing Bolaria and Peter S. Li, eds., Racial Oppression in Canada, 2nd ed. (Toronto: Garamond Press, 1988) at 71. Noel Dyck, Indigenous People and the Nation State: Fourth World Politics in Canada, Australia and Norway (St. John’s: Memorial University of Newfoundland, 1985). Cynthia Wesley-Esquimaux and Magdalena Smolewski, Historic Trauma and Aboriginal Healing (Ottawa: Aboriginal Healing Foundation, 2004). Robert Kidder, “Toward an Integrated Theory of Imposed Law” in Sandra B. Burman and Barbara E. Harrell-Bond, eds., The Imposition of Law (New York: Academic Press, 1979) at 289. Ibid. at 296. John Milloy, “The Early Indian Acts: Developmental Strategy and Constitutional Change” in Ian A.L. Getty and Antoine S. Lussier, eds., As Long as the Sun Shines and the Water Flows: A Reader in Canadian Native Studies ­(Vancouver: UBC Press, 1983) at 56. Brian Calliou, “Losing the Game: Conservation and the Regulation of First Nations Hunting, 1880–1930” (LLM thesis, University of Alberta, 2000) ­[unpublished]; Calliou, supra note 9 at 151. Laurie Barron, “A Summary of Federal Indian Policy in the Canadian West, 1867–1984” (1984) 1:1 Native Studies Review 28 at 31. Taiaike Alfred and Jeff Corntassel, “Being Indigenous: Resurgences against Contemporary Colonialism” (2005) 40 Government and Opposition 597; James V. Fenelon and Thomas D. Hall, “Revitalization and Indigenous Resistance to Globalization and Neoliberalism” (2008) 51:12 American Behavioral Scientist 1867; John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002). Manley Begay Jr., “Leading by Choice, Not Chance: Leadership Education for Native Chief Executives of American Indian Nations” (EdD diss., ­Harvard University, 1997) [unpublished]. Michael Asch, “Introduction” in Michael Asch, ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver: UBC Press, 1997) at ix.

Resistance against the Imposition of Law  37 25 Hamar Foster, “Honouring the Queen’s Flag: A Legal and Historical Perspective on the Nisga’a Treaty” (1998–99) 120 BC Studies 11; Laurence M. Hauptman, “The Idealist and the Realist: Chief Deskaheh, Attorney George Decker, and the Six Nations’ Struggle to Get to the World Court, 1921–1925” in Laurence M. Hauptman, Seven Generations of Iroquois Leadership: The Six Nations Since 1800 (Syracuse: Syracuse University Press, 2008) at 124. 26 For a sampling of the literature on Indigenous organizing, see Robert ­Galois, “The Indian Rights Association: Native Protest Activity and the ‘Land Question’” in British Columbia, 1902–1916” (1992) 8:2 Native Studies Review 1; Paul Tennant, “Native Political Organization in British Columbia, 1900–1969: A Response to Internal Colonialism” (1982) 55:3 BC Studies 3; Peter McFarlane, From Brotherhood to Nationhood: George Manuel and the Modern Indian Movement (Toronto: Between the Lines, 1993); Laurie ­Meijer-Drees, The Indian Association of Alberta: A History of Political Action (Vancouver: UBC Press, 2002); Joe Sawchuk, The Dynamics of Native Politics: The Alberta Native Experience (Saskatoon: Purich Publishing, 1998). 27 Douglas Sanders, “The Indian Lobby” in Richard Simeon and Keith ­Banting, eds., And No One Cheered: Federalism, Democracy and the Constitution Act (Toronto: Methuen Publications, 1983) at 301; Kerry Wilkins, ed. ­Advancing Aboriginal Claims: Visions/Strategies/Directions (Saskatoon: Purich ­Publishing, 2004). 28 In law, see John Borrows, “Seven Generations, Seven Teachings: Ending the Indian Act” (Research paper for the National Centre for First Nations Governance, Vancouver, 2008); in management training, see Amy Klemm Verbos, Joe S. Gladstone, and Deanna M. Kennedy, “Native American Values and Management Education: Envisioning an Inclusive Virtuous Circle” (2010) 20:10 Journal of Management Education 1; in information systems, see Martin Nakata, “Indigenous Knowledge and the Cultural Interface: Underlying Issues at the Intersection of Knowledge and Information ­Systems” (2002) 28:5–6 IFLA Journal 281; in environmental education, see Julie Kapyrka and Mark Dockstater, “Indigenous Knowledges and Western Knowledges in Environmental Education: Acknowledging the Tensions for the Benefits of a ‘Two Worlds’ Approach” (2012) 17 Canadian Journal of ­Environmental Education 97. 29 Robert Robson, “Rethinking the Community of the Provincial North: Building Communities from the Inside Out” (2014) 38 The Northern Review 65; Kathleen Pickering and David Mushinski, “Making the Case for Culture in Economic Development: A Cross-Section Analysis of Western Tribes” (2001) 25:1 American Indian Culture and Research Journal 87; Wanda Wuttunee, Living Rhythms: Lessons in Aboriginal Economic Resilience and Vision (Montreal: McGill-Queen’s University Press, 2004); Dean Howard Smith, Modern Tribal

38  Brian Calliou Development: Paths to Self-Sufficiency and Cultural Integrity in Indian Country (Walnut Creek, CA: AltaMira Press, 2000). 30 Calliou, supra note 2 at 38; A.D. Lucia and R. Lepsinger, The Art and Science of Competency Models: Pinpointing Critical Success Factors in Organizations (San Francisco: Jossey-Bass Pfeiffer, 1999); R.S. Mansfield, “Building Competency Models: Approaches for HR Professionals” (1996) 35 Human Resources Management 7. 31 Brian Calliou, “The Culture of Leadership: North American Indigenous Leadership in a Changing Economy” in Duane Champagne, Karen Jo ­Torjesen and Susan Steiner, eds., Indigenous Peoples and the Modern State ­(Walnut Creek, CA: AltaMira Press, 2005) at 47. 32 Leroy Little Bear, “Aboriginal Relationships to the Land and Resources” in Jill Oakes, Rick Riewe, Kathi Kinew, and Elaine Maloney, eds., Sacred Lands: Aboriginal World Views, Claims, and Conflicts (Winnipeg: University of Manitoba, 1998) at 15. 33 Cora J. Voyageur and Brian Calliou, “Aboriginal Economic Development and the Struggle for Self-Government” in Les Samuelson and Wayne Antony, eds., Power and Resistance: Critical Thinking about Canadian Social Issues, 4th ed. (Halifax: Fernwood Publishing, 2007) at 135. 34 Grace Ann Rosile, David M. Boje, and Carma M. Claw, “Ensemble Leadership Theory: Collectivist, Relational and Hetroarchical Roots from Indigenous Contexts” (2018) 14:3 Leadership 307. 35 Geert Hofstede, Culture’s Consequences: International Differences in Work Related Values (Newbury Park, CA: Sage Publishers, 1980); Geert Hofstede, “The Cultural Relativity of Organizational Practices and Theories” (1983) 4 Journal of International Business 75. 36 R.J. House, P.J. Hanges, M. Javidan, P. Dorfman, and V. Gupta, Culture, Leadership, and Organizations: The GLOBE Study of 62 Societies (Thousand Oaks, CA: Sage Publishers, 2004); B.L. Kirkman, K.B. Lowe, and C.B. ­Gibson, “A Quarter Century of Culture’s Consequences: A Review of Empirical Research Incorporating Hofstede’s Cultural Values Framework” (2006) 37 Journal of International Business Studies 285. 37 Lindsay Redpath and Marianne O. Nielsen, “A Comparison of Native Culture, Non-Native Culture and New Management” (1997) 14:3 Canadian Journal of Administrative Sciences 327. 38 Leo-Paul Dana, “Indigenous Entrepreneurship: An Emerging Field of Research” (2015) 14:2 International Journal of Business and Globalization 158; K. Hindle and M. Lansdowne, “Brave Spirit on New Paths: Toward a Globally Relevant Paradigm of Indigenous Entrepreneurship Research (2005) 18 Journal of Small Business and Entrepreneurship 131; Ana Maria Peredo and Robert B. Anderson, “Indigenous Entrepreneurship Research: Themes and Variations” in C.S. Galbraith and C.H. Stiles, eds., Developmental

Resistance against the Imposition of Law  39 Entrepreneurship: Adversity, Risk, and Isolation (Oxford: Elsevier, 2006) at 253: Leo-Paul Dana, “Toward a Multidisciplinary Definition of Indigenous Entrepreneurship” in Leo-Paul Dana and Robert B. Anderson, eds., International Handbook of Research on Indigenous Entrepreneurship (Cheltenham: Edgar ­Elgar Publishing, 2007) at 3. 39 D. Vinge, “Native American Economic Development on Selected Reservations: A Comparative Study” (1996) 55 American Journal of Economics and Sociology 427; Emily Dishart, “Tswwassen First Nation – A Case Study for Economic Development in Coexistence with Thriving Indigenous Culture” (2018) 11:1 Journal of Aboriginal Economic Development 22. 40 Wuttunee, supra note 29. 41 Robert B. Anderson, Economic Development Among the Aboriginal Peoples in Canada: The Hope for the Future (North York: Captus Press, 1999); Robert B. Anderson and R.M. Bone, “First Nations Economic Development: A Contingency Perspective” (1995) 39:2 The Canadian Geographer 120. 42 Duane Champagne, “Tribal Capitalism and Native Capitalists: Multiple Pathways of Native Economy” in Brian Hosmer and Colleen O’Neill, eds., Native Pathways: American Indian Culture and Economic Development in the Twentieth Century (Boulder: University Press of Colorado, 2004) at 308. 43 David Newhouse, “Modern Aboriginal Economies: Capitalism with a Red Face” (2000) 1:2 Journal of Aboriginal Economic Development 55. 44 Ana Maria Peredo and James J. Chrisman, “Toward a Theory of Community-Based Enterprise” (2006) 31:2 Academy of Management Journal 309; Jean-Michel Beaudoin, Luc Bouthillier, Janet Bulkan, Harray Nelson, and Stephen Wyatt, “Community-Based Enterprise as a Strategy for Development in Aboriginal Communities: Learning from Essipit’s Forest Enterprises” (2015) 9:2 Journal of Aboriginal Economic Development 24. 45 Redpath and Nielsen, supra 37; Hofstede, supra note 35. 46 C. Galbraith, C. Rodriguez, and C. Stiles, “False Myths and Indigenous Entrepreneurial Strategies” (2006) 8:2 Journal of Small Business and Entrepreneurship 1; C. Galbraith and C. Stiles, “Expectations of Indian Reservation Gaming: Entrepreneurial Activity within a Context of Traditional Land ­Tenure and Wealthy Acquisition” (2003) 8:2 Journal of Developmental Entrepreneurship 93. 47 Brian Calliou, “The Significance of Building Leadership and Community Capacity to Implement Self-Government” in Yale D. Belanger, ed., Aboriginal Self-Government in Canada: Current Trends and Issues, 3rd ed. (Saskatoon: ­Purich Publishing, 2008) at 332. 48 Calvin Helin, Dances with Dependency: Indigenous Success through Self-Reliance (Vancouver: Orca Spirit Publishing, 2006). 49 Edith G.J. Callaghan and Bernd Christmas, “Building a Native Community by Drawing on a Corporate Model” in Dwight Dorey and Joseph Magnet,

40  Brian Calliou eds., Legal Aspects of Aboriginal Business Development (Markham: LexisNexis Butterworths, 2005) at 31. 50 Manley Begay Jr., Designing Native American Management and Leadership Training: Past Efforts, Present Endeavors, and Future Options (Cambridge, MA: ­Harvard Project on American Indian Economic Development, 1991): J. Hassin and R.S. Young, “Self-Sufficiency, Personal Empowerment, and Community Revitalization: The Impact of a Leadership Program on ­American Indians in the Southwest” (1999) 23 American Indian Culture and Research Journal 265. 51 Miriam Jorgensen, ed., Rebuilding Native Nations: Strategies for Governance and Development (Tucson: University of Arizona Press, 2007). 52 Calliou, supra note 47 at 332. 53 Wesley-Esquimaux and Calliou, supra note 2; Calliou and Wesley-Esquimaux, supra note 2 at 31. 54 Stephen Cornell and Joseph P. Kalt, “Sovereignty and Nation-Building: The Development Challenge in Indian Country Today” (1988) 22:3 American Indian Culture and Research Journal 187; Steven Cornell and Joseph P. Kalt, “Pathways from Poverty: Economic Development and Institution-Building on American Indian Reservations” (1990) 14:2 American Indian Culture and Research Journal 89; Stephen Cornell and Joseph P. Kalt, “Where’s the Glue? Institutional Bases of American Indian Economic Development” (2000) 29:3 Journal of Socio-Economics 443. 55 Stephen Cornell and Joseph P. Kalt, “Two Approaches to the Development of Native Nations: One Works, the Other Doesn’t” in Miriam Jorgensen, ed., Rebuilding Native Nations: Strategies for Governance and Development (Tucson: University of Arizona Press, 2007) at 3. 56 Human Resources Development Canada, “Aboriginal Social and Economic Development: Lessons Learned Summary Report” (unpublished report for Evaluation and Data Development, Strategic Policy, Human Resources ­Development Canada, Ottawa, 1999). 57 Stelios Loizides and Wanda Wuttunee, “Creating Wealth and Employment in Aboriginal Communities” (unpublished report for Conference Board of Canada, Ottawa, 2005). 58 Ashley Sisco and Rodney Nelson, “From Vision to Venture: An Account of Five Successful Aboriginal Businesses” (unpublished report for Conference Board of Canada, Ottawa, 2008). 59 Ashley Sisco and Nicole Stewart, “True to Their Visions: An Account of 10 Successful Aboriginal Businesses” (unpublished report for Conference Board of Canada, Ottawa, 2009). 60 Henryk Krajewski and Yvonne Silver, “Announcing the Death of ‘Best Practices’: Resurrecting ‘Best Principles’ to Retain and Engage High Potentials,” accessed 13 November 2020, https://www.scribd.com/document/74161827

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/Announcing-the-Death-of-Best-Practices-Resurrecting-Best-Principles-Human -Resources-Association-of-Calgary. Gunilla Dahlberg, Peter Moss, and Alan Pence, Beyond Quality in Early Childhood Education and Care: Postmodern Perspectives (London: Routledge, 1999) at 4; see also O.L. Davis Jr., “Beyond ‘Best Practices’ Toward Wise Practices” (1997) 13:1 Journal of Curriculum and Supervision 1. Deborah Bartlette, “Are ‘Best Practices’ Hurting Adult Ed: McIntyre and the Globalization of Practice” (Paper presented at the Thinking Beyond Borders: Global Ideas, Global Values 27th National Conference, Online Proceedings of the Canadian Association for the Study of Adult Education, University of British Columbia, Vancouver, 2008). Stephen Cornell, “American Indians, American Dreams, and the Meaning of Success” (1987) 11:2 American Indian Culture and Resarch Journal 63. Wesley-Esquimaux and Calliou, supra note 2 at 19. Davis Jr., supra note 61 at 3. Robert J. Sternberg, “A Model of Educational Leadership: Wisdom, Intelligence, and Creativity, Synthesized” (2005) 8:4 International Journal in Education 347; A. Korac-Kakabadse, N. Korac-Kakabadse, and A. Kouzmin, “Leadership Renewal: Towards the Philosophy of Wisdom” (2001) 67:2 International Review of Administrative Sciences 207; Karl E. Weick, “Organizing for Mindfulness: Eastern Wisdom and Western Knowledge” (2006) 15:3 Journal for Management Inquiry 275; David L. Cooperrider and Shuresh Srivastva, Organizational Wisdom and Executive Courage (San Francisco: New Lexington Press, 1998). Ayse Kok, “Realizing Wisdom Theory in Complex Learning Networks” (2009) 7:1 Electronic Journal of e-Learning 53. Callaghan and Christmas, supra note 49; Keith Brown, Meghan Finney, Mary Beth Doucette, Janice Esther Tulk, Natasha Bernard, and Yu-Ting Isabella Yuan, “‘Membertou Always Wanted to Succeed’: The Membertou Business Model” (2012) 8:1 Journal of Aboriginal Economic Development 32; ­Jacqueline Thayer Scott, “‘Doing Business with the Devil’: Land, ­Sovereignty, and Corporate Partnerships in Membertou” in Terry L. ­Anderson, Bruce L. Benson, and Thomas E. Flanagan, eds., Self-Determination: The Other Path for Native Americans (Stanford: Stanford University Press, 2006) at 242. Robert B. Anderson, Robert J. Giberson, Kevin Hindle, and Bob Keyaseas, “Relating Practice to Theory in Indigenous Entrepreneurship: A Pilot Investigation of the Kitsaki Partnership Portfolio” (2005) 19: 1–2 American Indian Quarterly 1. Richard Missens, Leo-Paul Dana, and Simon Yule, “Indigenous Entrepreneurship in the Wine Industry: A Comparative Study of Two Indigenous Approaches” (2010) 7:1 Journal of Aboriginal Economic Development 29; Robert B. Anderson, S. McGillivray, and R.J. Giberson, “The Nk’Mip Cellars: Wine

42  Brian Calliou and Tourism with an Aboriginal Flavour” in Leo-Paul Dana and Robert B. Anderson, eds., International Handbook of Research on Indigenous Entrepreneurship (Cheltenham, UK: Edgar Elgar Publishers, 2007) at 336. 71 Tracey King, “Fostering Aboriginal Leadership: Increasing Enrollment and Completion Rates in Canadian Post-Secondary Institutions” (2008) 11:1 College Quarterly 1; Linda Sue Warner and Keith Grint, “American Indian Ways of Leading and Knowing” (2006) 2:2 Leadership 225; Carolyn Kenny, “Liberating Leadership Theory” in Carolyn Kenny and Tina Ngaroimata Fraser, eds., Living Indigenous Leadership: Native Narratives on Building Strong Leadership (Vancouver: UBC Press) at 1; David A. Cowan, “Profound Simplicity of Leadership Wisdom: Exemplary Insight From Miami Nation Chief Floyd Leonard” (2008) 4:1 International Journal of Leadership Studies 51. 72 Calliou, supra note 31. 73 Jacqueline Ottmann, “First Nations Leadership Development Within a Saskatchewan Context” (D.Ed dissertation, University of Saskatchewan, 2005); Siemthlut Michelle Washington, “Bringing Traditional Teachings to Leadership” (2004) 28:3/4 American Indian Quarterly 583; Cheryl A. Metoyer, “Leadership in American Indian Communities: Winter Lessons” (2010) 34:4 American Indian Culture and Research Journal 1; Lea Nicholas-MacKenzie, “Lessons From Our Ancestors: A Legacy of Leadership” (PhD dissertation, Royal Roads University, Victoria, 1999). 74 Warren Bennis and Burt Nanus, Leaders: Strategies for Taking Charge (New York: Harper-Row, 1985) at 17. 75 Joseph C. Rost, Leadership for the Twenty-First Century (Westport: Praeger, 1993); Gary A. Yukl, Leadership in Organizations (Upper Saddle River, NJ: Prentice-Hall, 1998). 76 Rosile, Boje, and Claw, supra note 34; Sonia Ospina and Erica Foldy, ­“Toward a Framework of Social Change Leadership” (Wagner University Research Paper No. 2010–05, New York, 2005). 77 Stephen Cornell, “Strategic Analysis: A Practical Tool for Building Indian Nations” (Harvard Project Report No. 98–10, Harvard University, Cambridge, 1998); Joseph S. Anderson and Dean Howard Smith, “Managing Tribal Assets: Developing Long-Term Strategic Plans” (1998) 22:3 American Indian Culture and Research Journal 139; Susan Guyette, Planning for Balanced Development: A Guide for Native American and Rural Communities (Sante Fe: Clear Light Publishers, 1996). 78 Cornell and Kalt, supra note 54; Calliou, supra note 47; and Stephen Cornell, “Remaking the Tools of Governance: Colonial Legacies, Indigenous Solutions” in Miriam Jorgensen, ed., Rebuilding Native Nations: Strategies for Governance and Development (Tucson: University of Arizona Press, 2007) at 57. 79 Morela Hernandez, “Promoting Stewardship Behavior in Organizations: A Leadership Model” (2008) 80 Journal of Business Ethics 121; Peter Block,

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Stewardship: Choosing Service Over Self-Interest (San Francisco: Berrett-Koehler, 1992); J.H. Davis, F.D. Schoorman, and L. Donaldson, “Toward a Stewardship Theory of Management” (1997) 22:1 Academy of Management Review 20; Jonathan Fox, “Democratic Rural Development: Leadership Accountability in Regional Peasant Organizations” (1992) 23:1 Development and Change 1; Kenneth Leithwood, “School Leadership in the Context of Accountability Policies” (2001) 4:3 International Journal of Leadership in Education 217. Wes Martz, “Evaluating Organizational Performance: Rational, Natural, and Open System Models” (2013) 34:3 American Journal of Evaluation 385; Werner Meier, “Results-Based Management: Towards a Common Understanding among Development Cooperation Agencies” (discussion paper prepared for the Canadian International Development Agency, Performance Review Branch, Ottawa, 2003). Robert Bacal, Performance Management (New York: McGraw-Hill, 1990). Jill A. Chouinard and J. Bradley Cousins, “Culturally Competent Evaluation for Aboriginal Communities: A Review of the Empirical Literature” (2007) 4:8 Journal of Multidisciplinary Evaluation 40; Joan LaFrance and Richard Nichols, “Reframing Evaluation: Defining an Indigenous Evaluation Framework” (2010) 23:2 Canadian Journal of Program Evaluation 13; Alice J. Kawakami, Kanani Aton, Fiona Cram. Morris K. Lai, and Laurie Porima, “Improving the Practice of Evaluation through Indigenous Values and Methods: Decolonizing Evaluation Practice – Returning the Gaze from ­Hawai’i and Aotearoa” (2007) 4:1 Hulili: Multidisciplinary Research on Hawaiian Well-Being 319. Wanda Wuttunee, “Partnering Among Aboriginal Communities: Tribal Council Investment Group (TCIG)” (2002) 3:1 Journal of Aborignial Economic Development 9; Sarah Jane Fraser, “An Exploration of Joint Ventures as a Sustainable Development Tool for First Nations” (2002) 3:1 Journal of Aboriginal Economic Development 40; L. Hammond Ketilson and I. MacPherson, “Aboriginal Cooperatives in Canada: A Sustainable Development Strategy Whose Time Has Come” (2002) 3:1 Journal of Aboriginal Economic Development 45.

3 Wise Practices: Towards a Paradigm of Indigenous Applied Community Economic Development Research and Facilitation brent mainprize , arthur mercer , libby edwards , and kevin hindle

Introduction This chapter reports a quest to articulate an applied research paradigm of Indigenous community economic development. In this field, there is an expanding volume of activity in at least five areas: journalistic investigation (we have assembled a database of over 500 non-refereed periodical articles on Indigenous Community Economic Development alone); government policy and program creation; attention from the established business community;1 academic investigation;2 and, most importantly, by Indigenous communities and leaders.3 The absence of an explicit, nationally relevant, research paradigm prevents the achievement of both cumulative effects accruing to applied research efforts and useful comparison between various policy and program initiatives. We can no longer avoid the fundamental research paradigm questions: What are the boundaries of this field? What should be studied within it? We anchor our approach to this task by first acknowledging the innovative, field-defining research that has come before us. Specifically, we draw from and strive to build upon two prominent research developments in the field of Indigenous entrepreneurship: (1) the first stage of a research sequence designed to build a paradigm of Indigenous entrepreneurship in Kevin Hindle and Michele Landsdowne’s article “Brave Spirits on New Paths”4 and (2) the “evidence-based, pre-paradigmatic framework” for the field of Indigenous entrepreneurship developed by Kevin Hindle and Peter Moroz in their article “Indigenous Entrepreneurship as a Research Field.”5 While the seminal work of Hindle and Landsdowne and then Hindle and Moroz mapped a specific area of Indigenous economic development – Indigenous entrepreneurship – the present study endeavours to expand the scope of the map to encompass

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Indigenous economic development in general, of which the field of Indigenous entrepreneurship is a subset. In all nations with significant Indigenous populations, the economic and social deprivation of Indigenous peoples has long been of deep policy concern, but both debate and administration of the issues have not been in Indigenous control. Whether the intentions of non-Indigenous governance and aid agencies have been malicious or benign, the result of taking responsibility out of Indigenous hands has resulted in a culture of paternalistic rule.6 John Borrows discusses this in depth in chapter 9 of this book, noting that “each country’s law has provisions addressing state paternalism and Indigenous empowerment” but that “these must be further developed to help communities better act in their own interests.” In parallel with such development, stimulation of Indigenous designed economies has the potential to repair much of the damage through the creation of an enterprise culture that fully respects Indigenous traditions and empowers Indigenous people as economic agents in a globally competitive modern world. Throughout this chapter, the term “wise practices” will be used to refer to “locally-appropriate actions, tools, principles or decisions that contribute significantly” to sustainable economic development and equitable social conditions.7 In chapter 2 of this book, Brian Calliou outlines a “wise practices model” with seven key success factors that, if competently implemented, ensure that Indigenous communities or organizations “are between 400 per cent to 500 per cent more likely to be successful” in economic endeavours. In this chapter, we seek to develop a framework – a paradigm – of Indigenous community economic development within which a wise practices model can be located. Indigenous community economic development facilitation and applied research is quickly emerging as one of the most important fields within the discipline of management and public policy. However, it is a frontier area that badly needs a map. Definition of Key Terms Nation. “A nation is a cultural territory made up of communities of individuals who see themselves as ‘one people’ on the basis of common ancestry, history, society, institutions, ideology, language, territory, and often, religion. A person is born into a specific nation.”8 State. “A state is a centralized political system within international legal boundaries recognized by other states. Further, it uses a civilian-military bureaucracy to establish one government and to enforce one set of

46  Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle

institutions and laws. It typically has one language, one economy, one claim over all resources, one currency, one flag, and sometimes one religion.”9 Indigenous people. The convention observed in this chapter is to use a capital “I” for every use of the word “Indigenous.” Indigenous people are defined by the United Nations Department of Economic and Social Affairs as follows: Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system.10

Indigenous traditions. Most Indigenous people prioritize resurrecting or strengthening aspects of either their specific/local identity or their ­general/regional, national or global Indigenous identity.11 Indigenous community economic development. Defined as the design, creation, management, and development of an economy by Indigenous people for the benefit of Indigenous people. The initiatives, programs, organizations, and institutions thus created can pertain to either the private, public or non-profit sectors. The desired and achieved benefits of Indigenous Community Economic Development can range from the narrow view of economic profit for a single individual to the broad view of multiple social and economic advantages for entire Indigenous Nations and their communities. Outcomes and entitlements derived from Indigenous created economies may extend to partners and stakeholders who may be non-Indigenous. Paradigm. “A paradigm is made up of the general theoretical assumptions and laws and techniques for their application that the members of a particular scientific community adopt.”12 Research paradigm. “A research paradigm provides a template against which any study purporting to belong to a field may be assessed and, with reference to which, productive comparisons between studies may be made.”13

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Dominant Themes from a Diverse Literature Globally, much interesting work is emerging. The growing volume of what might be classified as “Indigenous community economic development literature” is not yet matched by any strongly emergent structure in that literature. While Hindle and Moroz developed such a structure for the emerging canon of Indigenous entrepreneurship in the aforementioned paper from 2010, a need remains for such a structure in the field of Indigenous community economic development. As of yet, studies in this field rarely build on one another or refer to one another. Seemingly, most “start from scratch.” However, three related themes are strongly evident in the literature: Theme 1: opportunity drivers; Theme 2: governance; and Theme 3: human capacity development. Before exploring each theme in more detail, consider the following illustrative analogy comparing the three related themes to computer processing: the three themes of Indigenous community economic development – opportunity drivers, governance/ legal, and human capacity development – are akin to the three essential elements of a computer – the sources of power, hardware, and software. Opportunity Drivers: “Source of Power” Identifying opportunity drivers sets the entire machine of economic development in motion. Like the electric current needed to power a computer, selecting which opportunities to pursue is a necessary first step in successful community economic development. Once chosen, these opportunities propel the generation of the next two elements. Governance/Legal: “Hardware” Governing structures and legal policy constitute the framework within which communities manage opportunities. Analogous to hardware decisions when building a computer, decisions concerning governance and legal policy are long-term decisions – inflexible and difficult to change after the fact. It may take a number of years for a community to develop the internal governing structures and policies required to optimize community economic development – to develop the ‘hardware’ that will optimize economic operating efficiency. Human Capacity Development: “Software” Human capacity development becomes a priority once opportunity drivers are identified and governance and legal structures are in place. Unlike

48  Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle

decisions related to governance or legal policy, human capacity development decisions are short-term, reactive, and flexible. Like the software on a device, the human capacity development approach can be updated on an as-needed basis in reaction to the needs of the “user” (community). If opportunity drivers change, targeted human capacity building must adapt. Theme 1: Opportunity Drivers: Source of “Power” An opportunity driver is an anchor strategy that provides the foundation for a community to build an economy. Opportunity drivers are anchor institutions that are “assets” for the community and can result in both positive and negative impacts on the sustainable economic well-being of local communities.14 It is critical that communities choose their opportunity drivers wisely.15 In the following section we describe five key opportunity drivers often cited by Indigenous leaders as choices, and conclude the section by identifying the “balancing act” inherent in the selection and development of opportunity drivers within an Indigenous community context. 1.1 Small Business Nations might choose to build their economy by supporting small businesses. This focus places attention on individual economic decisions and entrepreneurial activities as opposed to government programs and larger companies. Small businesses create local jobs, while also spending money locally and making it convenient for consumers to do the same. Developing small businesses encourages community attributes such as self-reliance, creativity, and thriftiness. Entrepreneurship, like any human endeavour, is influenced by the environment, the context, and the community.16 Hindle’s diagnostic framework for “how community context affects entrepreneurial process” provides a visual representation of how community factors influence entrepreneurship and, ultimately, how one can engage in a contextually sensitive entrepreneurial process to ensure success in small business.17 Coined “Hindle’s Bridge” but then later revised by Bob Kayseas to model a more culturally appropriate “Talking Circle,” the framework identifies six categories of community factors that must be assessed in order to properly contextualize the proposed entrepreneurial process: three generic human factors – baseline human resources (demographics and human capital), world views and social networks, and boundary spanning (mandates and possibilities) – and three generic structural factors – baseline physical resources (land and infrastructure), governance and institutions, and property rights and capital management.

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Regardless of individual creativity and drive, small businesses need a friendly environment of consumers, suppliers, credit, investment capital, and appropriate policies in order to succeed. According to the literature review prepared by Indigenous and Northern Affairs Canada and titled Aboriginal Economic Development in Canada: Best Practices, Policies and Strategies, creating such an environment requires consideration of the following four key frameworks: (1) the economic environment; (2) the regulatory environment; (3) the support environment; and (4) the specific business environment.18 Small business ownership not only provides personal freedom, self-confidence, and family pride, it adds value to the Indigenous community within which it is situated. It prevents the loss of community resources and money, and provides employment and career development for community members wishing to remain in their communities or territories.19 Through a series of in-depth case studies with six different Indigenous communities from across Canada, Kevin Hindle, Bob Kayseas, and Robert Anderson found that in order for Aboriginal communities to set upon a path of small business development, they must (1) reject industrial development imposed upon them from outside in favour of strategies originating in and controlled by the community, (2) engage contextual planning based on culture, geography, and resources, (3) understand that venture creation requires dual leadership: cultural/spiritual authority and a practical hard driver that are separated, (4) learn that venture durability requires a long-term governance model that does not allow for swings in electoral cultural leadership that may dismantle or tamper with successful strategies, yet allow for augmentation, redirection, or cancellation of bad ones, and (5) ensure venture adaptability: closure or amendment of enterprises that have exceeded their “due date” for reasons based on business and economics but are continued due to their social mandate having value, although sustainability is questioned.20 1.2 Government Projects Supporting economic development through government projects often involves supporting the construction of community infrastructure or human capacity development programs. These strategies are focused on a dual outcome: (1) building what is needed for the community, and (2) stimulating the economy through reducing “leakage” and benefiting from the economic multiplier effect. This opportunity driver is suited to nations for whom a focus on private business is not suitable until necessary infrastructure is built, or

50  Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle

human capital is developed. Government incentives, such as grants, loans, and lowered taxes, might be considered in order to decrease the investment risk for private businesses. Governments (Indigenous and non-Indigenous) may choose to invest in training services or important infrastructure, such as highways, that would make it easier for businesses to profit. Problems arise when governments are unfamiliar with the specific needs of a community. This can lead to investing resources in the wrong places, developing projects that are not ultimately beneficial to the community. Government initiatives also change, which can mean that incentives and other programs can change or too, or even stop altogether. A reliance on government projects can mean that communities do not have as much control as they would if they were to pursue other opportunity drivers. 1.3 Land/Real Estate Development Land and real estate development emerges as a key theme in the literature on Indigenous economic development. It often appears in relation to a number of other principal themes such as culture, community, rights, resources, sustainability, and self-determination.21 Choosing land or real estate development as an opportunity driver can be a good option for communities that are prosperous, with larger populations or consistent tourist traffic, and located in areas where developers can build housing and retail space to rent. Whatever the approach, establishing title to land is a pre-requisite for any development activities and wealth creation.22 Understanding the “rules of the game” around how land is to be developed is also extremely important, as is the establishment of mutually acceptable land use plans and shared decision-making with regional stakeholders.23 Sometimes land development requires other sacrifices, including accepting damage to the environment or using the land in untraditional ways. In urban areas, depending on where they are constructed, development projects might also take traffic away from other areas in the community and lead to decay in older sections of a town. There is also no guarantee that development projects will succeed, and new buildings risk standing empty. 1.4 Industry Projects Engaging with large industry projects can provide opportunities for nations to significantly boost their economic development. Practically,

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this usually means that a nation-owned corporation becomes directly involved in a project as a service provider by partnering with an industry company working in the region. Hindle, Anderson, Giberson, and Kayseas24 suggest that such partnerships can be fraught with tensions that arise from the push and pull of traditional and untraditional approaches to economic development. They argue that conflict is inevitable and must be managed using twin skills (both Aboriginal community or firm and the non-Aboriginal firm must seek to understand respective cultural underpinnings but agree to do business unadorned).25 For a nation-industry partnership to remain productive and mutually beneficial, both parties need to support and invest in human capacity-building activities. The industry partner then employs community members on the project. The company can also boost the local economy by buying local supplies and services from nation-owned businesses. Industry employees will also drive economic growth by spending their wages at local, community-based businesses. While industry projects might create employment while they are in operation, they can leave community members unemployed when projects are completed. Big companies are often more concerned with profit as opposed to community development and might not consider how project termination might affect a nation. To avoid this outcome, Sarah Jane Fraser suggests entering joint ventures with government partners who have less profit maximizing motives.26 With larger companies, environmental damage is also a risk – one a nation might choose to take on to promote economic development. 1.5 Natural Resource Harvesting Nations that choose natural resource harvesting as an opportunity driver look to find ways to utilize the natural resources, such as timber or fish, available on their traditional land. Community members may build houses, make food and clothing, or provide training for others. This method of economic development often ensures a high level of control, with resource development remaining in the hands of the community as opposed to industry, developers, or government, and places a focus on people as opposed to pure profit. In order for this method to succeed, communities must ensure that they have natural resources that they are capable of harvesting. Finding the funding and expertise to begin harvesting projects can be a challenge.

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Balancing Traditional and Untraditional Approaches to Economic Development when Choosing Opportunity Drivers The process of selecting opportunity drivers is as important as how the opportunity driver is pursued in the context of culture. Indigenous communities are often reconciling traditional ways of pursuing opportunity with untraditional ways. Contemporary mainstream economic development is focused upon the commercialization of invention.27 A prime motive in many Indigenous nations’ desire for self-determination is preservation of cultural ways of knowing and doing. The superficial temptation is to classify the Indigenous traditional orientation as “looking back” and contrast it with the mainstream economic development ethic of “looking forward.” This is a false dichotomy and a real impediment to creating well-grounded study and execution of Indigenous community economic development. The challenge is to understand the dynamic potential inherent in tradition, not simply regard it as a roadblock to future-oriented commercial development. Theme 2: Governance: Hardware The development of strong governance underpins a great deal of the success attributed to Indigenous communities who have ventured into the new economy. To begin to understand what strong governance might look like, we must first define what we mean by governance. Consider Tim Plumptre and John Graham’s point that government and governance are not the same thing: [T]he need for governance as a concept distinct from government began to manifest itself when government became an organization apart from citizens rather than a process... Government became viewed as a discrete entity not only when it assumed an institutional form, but also when representation became necessary. Without representation, government is “us.” Indeed, in some Aboriginal languages, the concept of government means “our way of life” or “our life.”28

The authors go on to say that governance includes but is not limited to government. It incorporates other components such as business organizations, the media, educational institutions, institutions of justice, and the civil sector, including voluntary agencies and non-governmental organizations (NGOs). They define governance as “the art of steering societies and organizations [which involves] interactions among structures, processes and traditions that determine how power is exercised,

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how decisions are taken, and how citizens or other stakeholders have their say.”29 This definition of governance casts an incredibly wide net, capturing complex, multi-level interactions between institutions, community members, and local traditions and values. Practising good governance, therefore, asks a lot of managers of Indigenous public organizations, namely that they always bear in mind and effectively coordinate the various moving parts and processes. Governance leaders thus play a crucial role in the process by which Indigenous peoples govern their own affairs, regardless of the form of government involved. The Harvard Project on American Native Economic Development makes a strong link between good governance and the formation of good government institutions.30 These nation-driven government institutions include the following: public service delivery organizations, economic development institutions and businesses, a variety of institutions associated with land claims, co-management agreements, and so on.31 Key to good governance and good government institutions are nation-tailored agreements such as those in the form of cultural norms concerning the feasibility and legitimacy of governance. These agreements form the foundation of successful economic development.32 Martin Mowbray states good governance matters; policy development should be focused more on sensible principles for the unique needs, opportunities, and resources of a given community.33 Theme 3: Human Capital Capacity Development: “Software” The theme of capacity building is strongly represented in the literature on Indigenous community economic development. It refers to the specific objective of developing competencies and employment skills that are directly related to the facilitation of economic growth.34 Once opportunity driver(s) have been identified (Theme 1) and good governance and good government institutions are in place (Theme 2), a community turns its attention to (1) identifying its unique human capacity needs, (2) taking an inventory of current capacities within the community, and (3) developing locally appropriate programming to address the gap between (1) and (2). David Vinje argues that education is the cornerstone of any economic development plan and that any negative associations between increased educational attainment (in business, development competencies, or other) and decreased cultural protection is mitigated through the influence of self-government and self-determination.35 In other words, self-directed capacity building is a necessary requirement for developing

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what is referred to by Hindle and Lansdowne36 as “twin skills” (understanding the need for both cultural and business based perspectives). Hindle and Lansdowne observe that leadership (especially leadership that encompasses twin skills capacities) can be tenuous at best, and the structures of good governance and institutions cannot succeed without actors who are keenly aware of the delicate nuances of balancing business and culture and that have the social capital to maintain a balance. One of the most effective ways to build capacity is to link community development and business development with ties that build required capacities.37 The process of designing programs to build human capacity in the scope and scale required is ideally done by community members themselves, with assistance from non-community professionals only on an as-needed basis. If non-community professionals are consulted, leaders within the community guide the process and not the other way around. Relevant Theoretical Contexts As a predicate to empirical research design, we drew insight from five theoretical domains: (1) models of community economic development; (2) fourth world theory; (3) Whetten’s hybrid theory; (4) value theory; and (5) the Global Entrepreneurship Monitor (GEM) model. Models of Community Economic Development The Canadian Community Economic Development Network defines community economic development (CED) as “action by people locally to create economic opportunities and better social conditions, particularly for those who are most disadvantaged.”38 Other definitions of CED exist and indeed use different language or emphasize different themes, but the common thread across definitions of CED is an approach to economic development where money is not the only bottom line. More to this point, the Canadian CED Network further defines CED as “an approach that recognizes that economic, environmental and social challenges are interdependent, complex and ever-changing.” Mohammad Rony writes that CED as a concept was borne out of the socio-economic perspective that true economic self-reliance and empowerment happens when community members are active as decision makers in their own economy.39 Thus, successful economic activities within a CED model should prioritize good governance, management, and accountability,40 as well as sustainable community development more generally – building human capital and environmental sustainability at the same time as pursuing economic growth.41

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In Indigenous communities in particular, creating a CED model often means ensuring that the economic development approach is guided by community values that have been recognized as essential to the cultural integrity of the community and necessary for sustainable development. In other words, applying nation-specific cultural knowledge and values to market capitalism.42 This sentiment echoes the context-specific approach to entrepreneurship emphasized in “Hindle’s Bridge” (discussed above).43 Like entrepreneurship, successful CED requires extensive analysis and understanding of the community context, collaboration with community members, and a rejection of any top-down approaches.44 The literature review on Aboriginal economic development in Canada published by INAC in 2009 states that Aboriginal leaders have been advocating for CED models that use a “comprehensive approach to development, or simultaneous political, economic and cultural development.” Models of this type include the following:45 1 Dual economy: resources are poured into job creation and education for employment (Cameco-Dene). 2 Political economy: underdevelopment (part of class capitalism) and thus structural change is required (self-governance). 3 Mixed economy: lands and resources would be used to sustain both an industrial and a traditional economy, with plenty of opportunity for individuals to move freely from one to the other. 4 Cultural model: the goal of development is to revitalize whole communities through renewed relationships involving lands, resources, and the individual members of a community. Money is viewed strictly as a means to an end, but money and what must be done to get money should not dilute the importance of practices consistent with tradition.46 5 Comprehensive development: does not urge a particular way of achieving development, but rather a way of conceiving development that is less prescriptive and absolute than any of the four dominant models. Thus, the comprehensive model is interpreted differently in each community, bringing to the fore the special needs of each community. Fourth World Theory Fourth world theory47 focuses on the formidable challenge that the durable but depressed existence of Indigenous nations poses to a world where thought and action have been dominated by states possessing a

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single, mainstream culture. The Fourth World Journal is available online (www.cwis.org/fourth-world-journal/). Whetten’s Hybrid Theory David A. Whetten is renowned as a pioneer in the field of organizational identity. A lesser-known component of his scholarship may be called Whetten’s hybrid theory.48 Elements from two primary social institutions – such as church, education, government, business, military, or family – may be crossbred to produce a hybrid organization. The essence of the hybrid duality is always the existence of the paradox between ideology and instrumentality. A good example is “family business” – where “family” is a largely ideological concept and “business” is far more instrumental. Indigenous (ideological component) community economic development (instrumental component) may be regarded as a hybrid phenomenon. Whetten’s theory offers practical strategies for fostering coherence among potentially incompatible identity elements. Value Theory Value theory has been a mainstream concern of economics since the eighteenth century and includes a seminal debate between advocates and opponents of state redistributive activity. The focus of the disagreement centres on the opposed views of Rawls’s original position argument49 in favour of a re-distributive role for government and Nozick’s theory of justice in distribution,50 which rejects such a role. The overwhelming failure of government Indigenous welfare programs51 is strong evidence that Rawls has lost the argument. Unfortunately, neither Nozick specifically, nor value theory generally, supply any practical guidelines for either research or policy-making. In order to study the field of Indigenous community economic development better, we need not “value theory” – economic singular – but a theory of values – human plural. Values, as an issue for the field of sociology, was first raised by Pat Duffy Hutcheon who noted that American sociology has tended to develop in isolation from the humanities, and in the form of a highly specialized technique rather than as a broad, philosophically, and historically sophisticated perspective for the study of humanity.52 In common with sociology, economic development research has shown scant interest in values. It has been isolated from the humanities. The discipline’s commendable concern for technical excellence in quantitative methodology may have come at the expense of philosophical and historical sophistication. In

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her most recent book, Hutcheon revisits the values issue and concludes that, if we are ever going to solve the problems of society, we must understand how humans function as both the creators and creatures of an evolving culture.53 Richard Trudgen argues that mutual misunderstanding of values is at the heart of most problems between Indigenous and non-Indigenous cultures.54 Global Entrepreneurship Monitor (GEM) Model All five relevant theoretical contexts converge on one practical necessity: Indigenous people themselves must create the paradigm of the Indigenous community economic development. It cannot be thrust upon them by non-Indigenous scholars as just one more imposition of the dominant culture. Fortunately, there is a generic research method for facilitating this outcome. It involves distilling the collective wisdom of opinion leaders using depth interviews.55 Furthermore, there is a specific, tested application of the technique in the field of entrepreneurship (which is closely related to the field of community economic development) which is known as the Global Entrepreneurship Monitor (GEM) model.56 The GEM model provides, for our intended study, both the fifth theoretical context and a tested method of effective depth interviewing to generate insights about community economic development. Empirical Research Design At a broad level of purpose-focused methodological classification, the empirical component of this study is a blend of ethnography57 and grounded theory.58 Its fundamental purpose is to understand the relationship between behaviour and culture (the realm of ethnography) in order to determine the domain of a field linking participants’ perspectives to general social science theory (the realm of grounded theory). Our empirical research objective was to discover and articulate the essential elements, boundaries, and laws describing a paradigm of applied Indigenous community economic development research from the consensus elements contained in (1) the discourse of eleven, purposively chosen, individually interviewed experts, triangulated with (2) a meta-analysis of 181 academic studies of Indigenous community economic development research, (3) a meta-analysis of seventeen applied research reports containing direct input from Indigenous participants, and (4) a content analysis of the documented outcomes of fifteen in-community workshops.

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Interviews Between February and May 2017, eleven semi-structured depth interviews were conducted with Indigenous economic development leaders from across Canada (an additional interview was conducted with a former CEO of Sealaska Corporation, an Alaska Native Regional Corporation based out of Juneau, Alaska. First, interview questions were created on the basis of decades of experience in Indigenous economic development on the part of the research team. Indigenous leaders Arthur Mercer and Miles Richardson then vetted questions. Working with Indigenous business leaders to determine interview subjects, we created a list of interviewees and cross-referenced this list with published work in the field, selecting oft-cited persons. Arthur Mercer then narrowed this list down further to a set of interviewees that was as diverse as possible with respect to cultural and business background, gender, and age. If similar patterns of opinion could be detected among representatives from such a wide range of cultural and economic backgrounds, the claim for far-reaching relevance of any discoveries would be enhanced. Interviews were conducted in person or over the phone by a team of trained researchers currently completing PhD programs in the field of Aboriginal law. All interviews were audio recorded and transcriptions were produced from the audio recordings. Text transcriptions of the interviews were used as the basis of our content analysis. Every respondent was Indigenous and had to be a person knowledgeable in and respected for all three of the following: • Their wisdom about general, fundamental issues affecting Indigenous economic development in at least one major community; • Their deep knowledge of and experience in government policy and programs affecting Indigenous people; and • Their knowledge of the technical and managerial issues relevant to Indigenous community economic development. Our interview structure utilized nine Indigenous community economic development framework conditions: resource development; tradition and culture guiding opportunity; small business and entrepreneurship; Indian Act barriers;59 legal; band/tribal council governance; education and training; leadership and management policies; and access to funds/ business financing. These describe the most salient features of the opportunity and motivational environment in which Indigenous communities create and build their economies. Construct validity and reliability of results were strengthened by detailed research protocols, archival

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regimes, and adherence to Kevin Hindle and Susan Rushworth’s60 preference that respondents not be cloaked in anonymity. All respondents stand willing to repeat the views contained in their depth interviews in open forums, including media interviews. Many are prominent national and international figures (including the former national chief of the Assembly of First Nations, the former president and CEO of the Tahltan Nation Development Corporation, and Indigenous leaders with global reputations). Academic Wise Practice Research In 2009, the Office of the Federal Interlocutor for Métis and Non-Status Indians at Indian and Northern Affairs Canada (INAC – now Indigenous and Northern Affairs Canada) commissioned a review of the literature on “best practices” in Aboriginal economic development. The result was a ninety-seven-page report presenting a critical analysis of 181 sources on Indigenous economic development. The focus of the review was on academic peer reviewed and non-academic peer reviewed literature, as well as policy and other literature reviews. Of most interest to us in service of the development of a wise practices paradigm is the “Principle Themes and Relevant Best Practices” section of the review. The findings in this section represent a distillation of the academic wise practice research in Aboriginal economic development and as such offer essential insights that must be analysed and integrated into the development of the wise practice research paradigm. The methods employed by INAC to analyse and distill themes in the literature are similar to those used here in the analysis of the eleven interviews. Each publication was reviewed and coded by researchers using themes, and the coded themes that emerged were enumerated, analysed, sorted, and combined into categories. A total of thirty-nine principal themes were identified. Community-Driven Wise Practice Research In addition to the meta-analysis of 181 academic papers focused on Indigenous economic development (from the 2009 INAC report), we also gathered all applied research reports on Indigenous community economic development. This involved a meta-analysis of seventeen applied research papers that involved direct input from Indigenous participants. “Direct input” was defined as primary research involving direct consultation of representatives from Indigenous communities in the form of roundtable discussions, interviews, in-community workshops, or using other direct consultation techniques. Conducting a thorough

60  Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle

meta-analysis of this research, community-driven accounts of wise practices were identified and distilled. The wise practices discussed were contextually specific “actions, tools, principles or decisions” that have had a positive impact on the economic development in a particular region.61 In-Community Workshops Over the past thirteen years, Dr. Brent Mainprize of the Gustavson School of Business at the University of Victoria, and Arthur Mercer, Indigenous business leader, entrepreneur, and former CEO of the Commercial Group of Companies, have been delivering economic development workshops to Indigenous nations and communities across British Columbia. Over a thirteen-month period from February 2016 to March 2017, the team facilitated fifteen workshops in different regions of British Columbia, meeting with and learning from over 220 Indigenous leaders and economic development officers from seventy-three Indigenous communities, which represented over twenty nations throughout the province. The workshops were made possible by a partnership with the BC Ministry of Jobs, Tourism and Skills Training. Discussions in these workshops focused on framing wise practices in the form of specific choices that communities have made and are making as they work towards economic prosperity and economic reconciliation. The findings from these workshops represent a key piece of the puzzle as we generate the wise practices paradigm. Results and Analysis Analytical techniques employed included cognitive mapping,62 content analysis,63 and appropriate techniques of statistical description, especially iterative cross-tabulation of coded data. These techniques were employed as tools in the service of “the constant comparative method.”64 Finally, we selected a formal framework for reporting our findings. Hindle has developed a conceptualization of and system for the articulation of any research paradigm.65 He demonstrates that the research paradigm for any area of science can be succinctly presented as a matrix, illustrated in Table 3.3, where the columns universally represent the four key ingredients common to every paradigm66 and the rows specifically represent the “elemental issues” of the particular field that is under scrutiny.67 Laws, success rules, and instrumentation requirements are accordingly located in “boxes” described by the intersection of rows and columns. An “elemental issue” (see Figure 3.1) is defined as an issue so fundamental to effective study of the field that it must be present (implicitly

Community Economic Development Research and Facilitation  61 Figure 3.1.  Conceptualizing the general paradigm articulation matrix. DOMAIN: What defines and distinguishes the field?

OPERATIONS: How is success obtained within the field?

WHERE DOES IT APPLY?

WHAT MUST BE DONE?

PARADIGM BOUNDARIES

PARADIGM LAWS

PARADIGM SUCCESS RULES

INSTRUMENTATION REQUIREMENTS

ELEMENTAL ISSUE 1

?

?

?

?

ELEMENTAL ISSUE 2

?

?

?

?

?

?

?

?

ELEMENTAL ISSUE 3 et cetera

HOW DO YOU DO WHAT MUST BE DONE?

THEORETICAL JUSTIFICATION. Why does this paradigm contain these prescriptions?

Source: Drawing on the two works by Hindle (1997, 2002), as cited in notes 13 and 65.

or explicitly) in every study that can claim to belong to the field.68 In this study, we focused our analytical attention to the attempt to do five things: (1) to discover the paradigm’s elemental issues; (2) to determine its boundaries; (3) to determine its laws, (4) postulate success rules; and (5) set instrumentation requirements. Stage 1 Analysis: Early Stage Pattern Exploration Data was analysed following a thematic analysis approach,69 and using constant comparative coding methods.70 First, open codes were developed to capture the initial patterns observed and to create axial inductive codes. All codes were collapsed in several rounds and organized into categories based on themes.71 Table 3.1 is just one example of the many ways we coded themes in the early stages of our analysis. It employs the names of themes and the numbers of times they appeared in 181 academic papers that focused on Indigenous economic development. This was a “first round” method of aggregating the literature with a meta-analysis concerning the “most important issue” in the field of Indigenous community economic development. We identified thirty-nine themes as reported in Table 3.1. To facilitate insight as our analysis progressed, we generated broader theme categories using content analysis and pattern matching techniques.

62  Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle Table 3.1.  Classification coding of themes in the literature review of 181 academic papers focused on Indigenous economic development Themes

# of papers with theme

% of total

Culture and Social Norms Economic Development Entrepreneurship Land Community Capacity Building Institutions Government Capital Self-determination Rights Resources Strategic alliances Governance Education Development Corporation Sustainability Social Capital Leadership Politics Management Urban Holistic Global Business Jobs Innovation Other Social Entrepreneurship Research Planning Women Heterogeneity Exclusion Twin Skills Networks Geography Cooperatives Housing

102 87 58 54 49 48 41 38 35 32 31 30 24 24 23 20 19 16 14 14 13 12 12 11 10 9 8 8 7 7 7 7 6 6 5 5 5 4 3

56.4% 48.1% 32.0% 29.8% 27.1% 26.5% 22.7% 21.0% 19.3% 17.7% 17.1% 16.6% 13.3% 13.3% 12.7% 11.0% 10.5% 8.8% 7.7% 7.7% 7.2% 6.6% 6.6% 6.1% 5.5% 5% 4.4% 4.4% 3.9% 3.9% 2.9% 3.9% 3.3% 3.3% 2.8% 2.8% 2.8% 2.2% 1.7%

Source: INAC (2009) at 31–2, as cited in note 18.

Community Economic Development Research and Facilitation  63 Table 3.2.  Classification of nine salient themes and the coding of depth interviews, applied research report meta-analysis, and in-community workshops Depth Interviews SALIENT THEME

Total

Resource Development Tradition and Culture Guiding Opportunity Small Business and Entrepreneurship Indian Act Barriers Legal Band/Tribe Council Governance Education and Training Leadership and Management Policies Access to Funds/Business Financing

9/11 10/11

%

Appied Research Report Meta-Analysis

In-Community Workshops

Total

%

Total

%

82% 91%

10/17 14/17

59% 82%

15/15 15/15

100% 100%

8/11

73%

10/17

59%

15/15

100%

8/11 11/11 11/11

73% 100% 100%

8/17 8/17 13/17

47% 47% 76%

13/15 14/15 15/15

87% 93% 100%

10/11 11/11

91% 100%

8/17 14/17

47% 82%

15/15 15/15

100% 100%

9/11

82%

10/17

59%

12/15

80%

Stage 2 Analysis: Refining Our Salient Themes Domain and matrix analyses were used to examine the relationships between codes and to ensure that they were representative of the data, as well as to compare and contrast between interviews and themes.72 Two researchers on the team completed this process independently and compared findings. Through this process, we were able to distill the thirty-nine themes from stage 1 into nine salient themes (see Table 3.2). Stage 3 Analysis: Collapsing Salient Themes into Final Themes In stage 3 of our analysis we were able to collapse our salient themes into final themes. Final themes from the analysis ultimately form the “elemental issues” in our paradigm. The reliable research methods used to determine the final themes were the following: methods of prolonged engagement (depth interviews with Indigenous), negative case analysis (matrix analysis), checking findings against raw data (constant comparative approach), peer debriefing, and co-generative dialogue through facilitated economic development workshops.73 The final three themes

64  Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle

are (1) opportunity drivers, (2) legal/governance, and (3) human capacity development. Opportunity Drivers A major emergent theme, with many ramifications, was the relative balance of “traditional” and “untraditional” approaches to opportunity drivers that seems to determine how economic and cultural priorities are blended to produce desired outcomes. One interviewee refers to the importance of community “buy-in” on the traditional-untraditional balance when she says: I think we come from a place of knowing that a project isn’t going to get off the ground if it doesn’t have community support. So it’s got to have the support of the people if it’s going to be successful. Because we can sit in our offices and plan all that we want, but if we don’t have the people on board then it’s going to go nowhere.

Another talks about the external influences on this balance, how pursuing an untraditional approach to economic development may not even be an option when the market is already saturated: So there’s a lot of talk about fishery today. Like, I feel there is a big opportunity for value added fish products. Like, and I know that we’ve looked at the markets and we’ve seen that we can’t compete with those big marketing giants out there… We can’t compete with them, but we could probably take our product and put out it out into different niche markets.

One economic development manager demonstrates how opportunity drivers can reveal themselves in surprising ways, in this case through an in-depth study of community spending habits: We have 2,000 members total living on reserves, spending millions of dollars a year on consumables, so we’re doing a leakage study to identify where spending is being done and see if there’s an opportunity to create our own market … The hope is that there are other First Nations that are producing products that need an outlet. So we’re hoping to make those connections with First Nations producing things we need and vice versa. It’s a great avenue to open up those supply chains, as well as to capture some of that leakage.

Community Economic Development Research and Facilitation  65

Legal/Governance Every single interviewee addressed, in some way or another, the legal and/or governance structures within which they are required to work. For example, one CEO stated: “I think that it was the title and rights that brought the spring in the economic development. Without those title and rights cases being fought constantly, I don’t think that anybody would have given First Nations the time of day.” One subtheme that emerged out of this principal theme of legal/­ governance was the relationship between politics and business. A former CEO of an economic development corporation speaks to this: When they asked me to come and take on the job as president … I said, I will do this on one condition, that all of the political leaders resign from [the economic development corporation] and make it a separate entity, free from the politics. And they agreed. Which, to their credit, was very positive. So they all resigned, and then we ended up forming a … board separate from the politics … I could see that the companies that were successful were the ones that separated business from politics, otherwise it’s difficult. When you get political influence and interference in business, it doesn’t work.

Paradigms of Indigenous Community Economic Development Paradigms form the structures within which we make sense of and frame our ideas about the world. They influence perspectives, shape dominant attitudes, and define what is possible. In the following quote, one interviewee proposes a different way of thinking about modern-day Indigenous community economic development – one that could change attitudes and shift perspectives: So the First Nations modern-day economy probably isn’t much older than maybe thirty years, in the sense of using modern-day economic principles. So to many extents we have an advantage in that we can deploy strategies that had worked and not adopt the failed strategies of the non-Indigenous communities that haven’t worked.

Every one of our respondents believe that a blend of Indigenous tradition with sheer, Indigenous “smartness” is an essential key to the future.

66  Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle

Final Analysis (Stage 4): Theoretical Saturation In this final stage, analysis was performed from our primary research involving direct consultation with representatives from Indigenous communities in the form of roundtable discussions, interviews, and in-community workshops. The constant comparative method was the fundamental technique used to distil the core paradigm concepts and relationships from the communication blocs contained in our interview data.74 It was an iterative process of theory development whereby concepts and relationships were formulated as categories and their properties. The data were constantly revisited seeking ever more parsimonious categorization until we believed we had obtained the minimum set of fundamental issues, boundary conditions, and laws capable of defining the paradigm. At this point, the categories were “theoretically saturated” so that further data revisits and new incidents in the data ceased to contribute to our understanding. The grounded theory had “solidified” and it was appropriate to articulate it using the paradigm matrix (see Table 3.3). 3.3 explained The Indigenous Community Economic Development Applied Research/ Facilitation Paradigm Model formulates three essential elements, three boundary statements, and eight laws, seven rules, and six instrumentation requirements. The paradigm of Indigenous applied community economic development is thus described. Following are brief amplifications of the three essential elements of the paradigm. table

1 The Opportunity Driver Balance: Our analysis clearly demonstrates that the process of selecting opportunity drivers is as important as how the opportunity driver is pursued in the cultural context. Indigenous communities often are reconciling traditional ways of pursuing opportunity with untraditional ways as communities identify potential projects under five key opportunity drivers: (a) small business, (b) government projects, (c) land/real estate development, (d) industry projects, and (e) natural resource harvesting. At the heart of this element is a positioning statement, indicating the degree to which the community uses traditional and untraditional” approaches as a lens through which to view and screen opportunity drivers. 2 Nation Defined Governance: From our content analysis and from the respondents in our study, there was a significant emphasis placed on Indigenous autonomy that distinguishes each community’s unique

Community Economic Development Research and Facilitation  67

legal/governance structures to effectively perform and serve as the administrative backbone to the community. All applied Indigenous community economic development research/facilitation must ­address the degree of specialized legal/governance structures, the extent to which the nation/community uses traditions and cultural ways of knowing and doing so on three levels: I. Foundation Level: Describe the legal and governance infrastructure choices made by the nation/community to get/maintain control over lands and resources, II. Policy Level: Describe the legal and governance infrastructure choices made by the nation/community to develop and set nation/community laws and policies, and III. Administration Level: Describe the legal and governance infrastructure choices made by the nation/community to develop and create appropriate governance institutions and structures. 3 The Human Capacity Gap and Fit: Indigenous community economic development is distinguished by a need for practitioners and applied researchers to identify and fully develop the human capacity potential within the community. There are three levels of choices made by communities concerning human capacity development that must be aligned: I. Foundation Level: Describe the nationhood attitudes; unity and a sense of ownership over the decision-making of the nation’s economic future, II. Strategic Level: Describe the strategic choices made by the nation/community to development the human capacity, and III. Empowerment Level: Describe the education, skills, and employment programming decisions made by the nation/community to develop the human capacity that best matches the needs of the opportunity drivers. Element (3), the Human Capacity Gap and Fit, must include the twin skills inventor,75 as there is a need for significant participants in an economic development process to possess a relevant mixture of technical and cultural skills. Discussion Initial Utility of the Paradigm Our investigation into Indigenous applied community economic development research began with two questions: What are the boundaries of

Table 3.3.  Indigenous Community Economic Development Applied Research/Facilitation Paradigm Model RESEARCH DOMAIN: A field comprised of studies focused on three essential issues

OPERATIONS: How is success obtained?

Where does it apply?

What must it be?

How do we do what must be done?

Paradigm Boundaries

Paradigm Laws

Paradigm Success Rules

Instrumentation Requirement

The Opportunity Driver Balance (Power Source)

(1) The relative balance of traditional and untraditional opportunity drivers must be made extant and will determine how economic and cultural priorities are blended to produce desired outcomes

(1) Provide a positioning statement, indicating the degree to which the community uses traditional or untraditional approaches as the lens to view and screen opportunity drivers (2) Identify potential projects under five key opportunity drivers: (a) small business, (b) government projects, (c) land/real estate development, (d) industry projects, and (e) natural resource harvesting

(1) Community leaders take the “pulse” of the community’s position on the traditional/ untraditional spectrum across all five key opportunity drivers (2) Prioritize the sequence of pursuing the five key opportunity drivers

(1) Use a taxonomic visual framework to classify and categorize the elements of applied research and facilitation in the five key opportunity drivers (2) Use “future mapping” as a tool for organizing choices and ultimately making decisions and of how and when to pursue the mix of five opportunity drivers through applied research and facilitation

Nation Defined Governance (Hardware)

(1) All applied Indigenous community economic development research/facilitation must address the degree of specialized legal/governance structures, the extent to which the nation/ community uses traditions and cultural ways of knowing and doing

(1) Foundation Level: Describe the legal and governance infrastructure choices made by the nation/community to get/ maintain control over lands and resources (2) Policy Level: Describe the legal and governance infrastructure choices made by the nation/community to develop and set nation/community laws and policies (3) Administration Level: Describe the legal and governance infrastructure choices made by the nation/community to develop and create appropriate governance institutions and structures

(1) The three overall legal/ governance strategic approaches used by a community/nation are characterized as: (a) constitutional rights litigation, (b) formal negotiated agreements, and (c) assertions of jurisdiction outside the state framework (2) Community leaders take the “pulse” of which of the three strategic approaches is more appropriate

(1) Use a taxonomic visual framework to classify and categorize; “populate” the framework with the choices made to date at each of these three levels of governance (2) Use “future mapping” as a tool for organizing choices and ultimately making decisions for which of the three legal/ governance approaches will dominate through applied research and facilitation

The Human Capacity Gap and Fit (Software)

RESEARCH DOMAIN: A field comprised of studies focused on three essential issues

OPERATIONS: How is success obtained?

Where does it apply?

What must it be?

How do we do what must be done?

Paradigm Boundaries

Paradigm Laws

Paradigm Success Rules

Instrumentation Requirement

(1) Indigenous community economic development is distinguished by a need for practitioners and applied researchers to identify and fully develop the human capacity potential within the community

(1) Foundation Level: Describe the nationhood attitudes; unity and a sense of ownership over the decision-making of the nation’s economic future (2) Strategic Level: Describe the strategic choices made by the nation/community to develop the human capacity, and (3) Empowerment Level: Describe the education, skills, and employment programming decisions made by the nation/community to develop the human capacity that best matches the needs of the opportunity drivers

(1) Three key areas of information must be collected: (a) future needs for specific skills needed in the community created by present and future opportunity drivers, (b) comprehensive inventory of current human capacity and skills held by community members, (c) articulating the human capacity “gaps” by (a) less (b) (2) Community leaders take the “pulse” of which choices in each of the three levels are most appropriate for the nation/ community to address the “gaps” (3) The choices in the three levels of human capacity development must be aligned with one another

(1) Use a taxonomic visual framework to classify and categorize; “populate” the framework with the choices made to date at each of these three levels of human capacity development (2) Use “future mapping” as a tool for: (a) organizing choices and ultimately making decisions that align with each of the three levels through applied research and facilitation, (b) illustrating how the chosen education, skills, and employment programming decisions match the needs of the opportunity drivers and close the capacity gaps

THEORETICAL JUSTIFICATION. Patterns matched in-depth interviews, PAR cycles in communities; content analysis; convergence of five theoretical frameworks

70  Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle

this field? What should be studied within it? The discovered paradigm provides some answers, and the new question becomes: How can the paradigm be used? Initially, its principal utility will be as a taxonomic device. Studies can now be profitably classified and arranged in meaningful clusters. Two brief examples of real-life scenarios as told by two Indigenous leaders we interviewed from Indigenous communities in British Columbia will illustrate. In the first example, the First Nation partnered with, industry projects (Opportunity Driver #4) in respect of “92,000 square kilometres of probably the best mining section in BC.” The Nation has taken advantage of their mineral-rich locale, partnering with a number of industry players to launch and operate mining projects on their traditional territory. This approach has been the driving force behind the nation’s successful economic development story – ultimately bringing the nation’s economic development corporation out of debt. Among other things, IBAs outlined a profit share for the development corporations and training and jobs for citizens. These industry projects have thus generated significant revenue as well as reduced the unemployment rate to essentially zero. The economic development approach demonstrated in this example would fall on the untraditional end of the traditional-untraditional opportunity driver spectrum and would be profitably studied to learn about important issues of partnering, leadership and negotiation. Example 2 involves land/real estate development (Opportunity Driver #3), and an ideal stretch of tourist-attracting beach. Realizing that this stretch of beach in Naikoon Provincial Park was incredibly popular among tourists visiting the island, the Haida recognized a significant socio-economic opportunity and set out to build the Hiellen Longhouse Village. The Village consists of seven traditional 500-square-foot longhouses and one 2,500-square-foot group longhouse where visitors can stay for “a truly unforgettable experience that will bring awareness and understanding of the interconnection of all things” for between $165 and $400/night in high season (Hiellen Longhouse Village, http:// www.haidalonghouses.ca/facilities.html). Attracting visitors to the area in turn creates “off-shoot” economic opportunities for small enterprise development. For example, tree climbing with Toby, learning to surf with Mike and Lucy, catching fish or digging clams with local guides, visiting local cultural attractions, and walking through the park with Haida wildlife stewards. The Hiellen Longhouse Village is thus generating revenue for Old Massett while simultaneously creating jobs and business opportunities for community members. The economic development approach demonstrated in this example would fall on the traditional end of the untraditional-traditional opportunity driver spectrum and would

Community Economic Development Research and Facilitation  71

be profitably studied to learn about issues of infrastructure development and social enterprise. Investigations on both approaches would occupy very different but possibly equally valuable “learning niches” in the Indigenous applied community economic development research “space.” More generally, scholars and practitioners may find the paradigm useful as a device for focusing research interests on specific topics needing urgent investigation. This focus can now be achieved without losing contact with the context that distinguishes Indigenous applied community economic development research from all other fields. Future Research Directions This study was intended as merely the first stage of a research sequence, which we have labelled the Indigenous Applied Community Economic Development Entrepreneurship Paradigm Project (IACEDP).2 Paradigm building will continue through many more interviews embracing many more states and nations. Hopefully, paradigm usage will itself generate feedback and critique. Projects envisaged include a retrofitting study using the paradigm to classify, arrange, and draw cumulative conclusions from many existing studies in the field; replication studies using the same research procedures in other countries with Indigenous populations (other provinces in Canada, the United States, Australia, New Zealand, Africa and Norway have been canvassed); a fully developed toolkit for practitioners of Indigenous community economic development using the paradigm as a framework. Collaboration, extension, and critique by scholars in all branches of the social sciences and humanities are welcome. The utility of the study will best be judged by its contribution to what is not there rather than its comportment with what is. It fills a demonstrable gap in the literature of applied Indigenous community economic development research and the toolkits of practising Indigenous economic development professionals. Communities Using Tradition as a Path to Future Prosperity The major lesson learned in this study is that the three key paradigm elements of Indigenous community economic development can be applied with useful generality out of the vastness of the daunting diversity of the relationship between Indigenous community context and economic development process. In other words, communities can use tradition and culture and they don’t have to lose it when they set out in pursuit of their

72  Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle

self-determined economic development goals. These traditions offer not a closed book of immutable scripture, but an open universe of continuous possibility. The potent allegories of Indigenous tradition can show the way to what might be – as well as what has been. There need be no paradox, no contradiction, no values sacrifice, no false dichotomy between looking back and moving forward. From our primary research (interviews and workshops) we know the teachings of many Indigenous traditions are rich in stories of brave-hearted individual men and women in quest of new knowledge, new ways of doing things, and new discoveries that will lead to a better life for members of their communities.76 Applied researchers and facilitators now have another map to navigate the journey of Indigenous community economic development.77 NOTES 1 Canadian Council for Aboriginal Business, Promise and Prosperity: The 2016 Aboriginal Business Survey (Toronto: CCAB, 2016). 2 Robert B Anderson, “Aboriginal People, Economic Development and Entrepreneurship” (2002) 2:1 Journal of Aboriginal Economic Development 33–42. 3 Anne Daly, “Self-Employed Indigenous Australians in the Labour Market” (1994) Canberra, Australian National University, Centre for Aboriginal Economic Policy Research Discussion Paper No. 67/1994; Boyd Hamilton Hunter, “Indigenous Self-Employment: Miracle Cure or Risky Business?” (1999) Canberra: Centre for Aboriginal Economic Policy Research, Discussion paper No. DP176/1999; Noel Pearson, producer, Rebuilding Communities (Australian Broadcasting Corporation, 1999); Richard I. Trudgen, Why Warriors Lie Down and Die (Darwin, Australia: Aboriginal Resource and Development Services, 2001). 4 Kevin Hindle and Michele Lansdowne, “Brave Spirits on New Paths: Toward a Globally Relevant Paradigm of Indigenous Entrepreneurship Research” (2012) 18:2 Journal of Small Business & Entrepreneurships 139. 5 Kevin Hindle and Peter Moroz, “Indigenous Entrepreneurship as a Research Field: Developing a Definitional Framework from the Emerging Canon” (2010) 6 International Entrepreneurship and Management Journal 378. 6 Pearson, supra note 3. 7 Cynthia Welsey-Esquimaux and Brian Calliou, Best Practices in Aboriginal Community Development: A Literature Review and Wise Practices Approach (Banff, BC: The Banff Centre, 2010). 8 Bernard Neitschmann, “The Fourth World: Nations verses States” in G.J. Demko and W.B. Wood, eds., Reordering the World: Geopolitical Perspectives on the Twenty-first Century (Oxford: Westview Press, 1994) at 226.

Community Economic Development Research and Facilitation  73 9 Ibid. at 227. 10 United Nations, Department of Economic and Social Affairs, “Workshop on Data Collection and Disaggregation for Indigenous Peoples,” Background Paper Prepared by the Secretariat of the Permanent Forum on Indigenous Issues (New York, 19–21 January 2004) at 2. 11 See Gerald Taiaiake Alfred, Peace, Power, Righteousness: An Indigenous Manifesto, 2nd ed. (Oxford: Oxford University Press, 2008); John Borrows, Canada’s Indigenous Constitution (Toronto, ON: University of Toronto Press, 2010); Dennis Foley and Ricky Maynard, Repossession of Our Spirit: Ttraditional Owners of Northern Sydney (Canberra: Aboriginal History, 2001); Ron Laliberte, “Exploring the Construction, Retention and Maintenance of Urban Metis Identity” in E. Peters and C. Andersen, eds., Indigenous in the City: Contemporary Identities and Cultural Innovation (Vancouver: UBC Press, 2014). 12 Alan F. Chalmers, What Is This Thing Called Science? (St. Lucia, Queensland: University of Queensland Press, 1984) at 90. 13 Kevin Hindle, “A Conceptual Framework for Articulation of Research Paradigms” (2002) Australian Graduate School of Entrepreneurship Working Papers at 2. 14 Ira Harkavey and Harmon Zuckerman, Eds and Meds: Cities Hidden Assets (Washington, DC: Brookings Institution, 1999); Tom Murphy, Building on Innovation: The Significance of Anchor Institutions in a New Era of City Building (Washington, DC: Urban Land Institute, 2011); Henry S. Webber and Mikael Karlström, Why Community Investment Is Good for Nonprofit Anchor Institutions: Understanding Costs, Benefits, and the Range of Strategic Options (Chicago: University of Chicago, Report for Chapin Hall, 2009). 15 Rita Alexroth Hodges and Steve Dubb, The Road Half Traveled: University Engagement at a Crossroads (East Lansing: Michigan State University Press, 2012). 16 Kevin Hindle, “How Community Context Affects Entrepreneurial Process: A Diagnostic Framework” (2010) 22:7–8 Entrepreneurship and Regional Development 600. 17 Ibid. at 619. 18 Indigenous and Northern Affairs Canada, Aboriginal Economic Development in Canada: Best Practices, Policies and Strategies (Ottawa: INAC, 2009) at 45. 19 Warren I. Weir, “First Nation Small Business and Entrepreneurship in Canada” (2007) National Center for First Nations Governance Research ­Paper, https://nnigovernance.arizona.edu/first-nation-small-business -and-entrepreneurship-canada. 20 Bob Kayseas, Kevin Hindle, and Robert Anderson, “An Empirically Justified Theory of Successful Indigenous Entrepreneurship” (Paper delivered at the Australian Graduate School of Entrepreneurship, 3rd International

74  Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle Entrepreneurship and Research Exchange, Brisbane, Australia, 6–9 ­February 2007) at 692–5. 21 Indigenous and Northern Affairs Canada, supra note 18. 22 Hernando De Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic Books, 2000) at 167. 23 Ibid. at 199. 24 Kevin Hindle, Robert B. Anderson, Robert J. Giberson, and Bob Kayseas, “Relating Practice to Theory in Indigenous Entrepreneurship: A Pilot Investigation of the Kitsaki Partnership Portfolio” (2005) 29:1/2 American Indian Quarterly 1. 25 Ibid. at 16. 26 S.J. Fraser, “Negotiating for the Future: Joint Ventures and the Economic Participation of First Nations in Canada” (MDE, Dalhousie University, 2007) [unpublished]. 27 Kevin Hindle, “The Fundamental Framework: The Value Creation Trinity,” flowchart from Kevin Hindle, “The Relationship between Innovation and Entrepreneurship: Easy Definition, Hard Policy” (Paper delivered at the 6th AGSE International Entrepreneurship Research Exchange, Adelaide, South Australia, Australia, 2013), http://www.kevinhindle.com/fundamentalframe workthevaluecreationtriniy /. 28 Tim Plumptre and John Graham, Governance and Good Governance: International and Aboriginal Perspectives (Ottawa: Institute on Governance, 1999) at 2. 29 Ibid. at 3. 30 Stephen E. Cornell and Joseph P. Kalt, “Where’s the Glue? Institutional and Cultural Foundations of American Indian Economic Development” (2000) 29:5 Journal of Socio-Economics 443. 31 Ibid. 32 Stephen E. Cornell and Joseph P. Kalt, “Where Does Economic Development Really Come From? Constitutional Rule Among the Contemporary Sioux and Apache” (1995) 33:3 Economic Inquiry 402. 33 Martin Mowbray, “Localising Responsibility: The Application of the Harvard Project on American Indian Economic Development to Australia” (2006) 41:1 Australian Journal of Social Issues 87–103. 34 H. Alan C. Cairns, Stuart M. Jamieson, and K. Lysyk, “A Survey of the Contemporary Indians of Canada” in H.B. Hawthorn, ed., A Report on Economic, Political, Educational Needs and Policies (Ottawa, ON: Indian Affairs Branch, 1996), Part 2, https://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ /STAGING/texte-text/ai-arp-ls-pubs-sci3_1326997109567_eng.pdf. 35 David L. Vinje, “Native American Economic Development on Selected Reservations: A Comparative Analysis” (1996) 55:4 The American Journal of Economics and Sociology 427. 36 Hindle and Lansdowne, supra note 4.

Community Economic Development Research and Facilitation  75 37 Vishal Kapur, “Development in Harmony: The Community Futures Program as a Model of Community Economic Development in Northern Manitoba” (MCP, University of Manitoba, 2000) [unpublished]. 38 Canadian Community Economic Development Network, What Is CED? at para. 1, accessed 4 February 2020, https://ccednet-rcdec.ca/en/what _is_ced. 39 Mohammad Rony, “Impact Investing and Aboriginal Community Economic Development: From Fishing Net to Financial Net” (MA thesis, University of Manitoba, 2016) [unpublished]. 40 Stelios Loizides and Wanda Wuttunee, Creating Wealth in Aboriginal Communities (Ottawa: The Conference Board of Canada, 2005). 41 Maureen Rogers and Roberta Ryan, “The Triple Bottom Line for Sustainable Community Development” (2001) 6:3 Local Environment 279–89. 42 Rony, supra note 39. 43 Hindle, supra note 16 at 619. 44 First Nations Resource Council, Socioeconomic planning model: Tools for Native community economic development planning (Edmonton: Government of Canada, 1990); Art Napoleon, Community-Based Development Planning in Native Communities: A Resource Book for Community Organizers (Salmon Arm, BC: Okanagan College Native Adult Education Resource Centre, 1992). 45 Indigenous and Northern Affairs Canada, supra note 18. 46 The cultural model of CED brings to mind Kevin Hindle’s “Parable of the Teepee,” in which an Indigenous entrepreneur is confronted by community members for creating a business that they believe is exploitative of their cultural heritage. Eventually, the entrepreneur takes to heart the community’s concerns and builds a more socially oriented enterprise – revising his business model to meaningfully engage with the community and their traditions. Just like the cultural model stipulates, this approach revitalizes the whole community, prioritizing cultural preservation (and rejuvenation) and the renewal of relationships between community members over straight wealth accumulation. Kevin Hindle, “The Parable of the Teepee” in S.N. Nielsen, K. Klyver, M.R. Evald, and T. Bager, eds., Entrepreneurship in Theory and Practice: Paradoxes in Play (Cheltenham UK: Edward Elgar, 2012) at 203–6. 47 Bernard Neitschmann, “The Fourth World: Nations verses States” in G.J. Demko and W.B. Wood, eds., Reordering the World: Geopolitical Perspectives on the Twenty-first Century (Oxford: Westview Press, 1994) at 225–42; Kathy Seton, “Fourth World Nations in the Era of Globalisation: An Introduction to Contemporary Theorizing Posed by Indigenous Nations” (1999) 4:1 Fourth World Journal 49–69. 48 David A. Whetten, “Hybrids – A Special Case of Organizational Identity Claims” (Unpublished manuscript, 2002). Draft kindly provided by the author.

76  Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle 49 John Rawls, A Theory of Justice (London: Oxford University Press, 1972); John Rawls, “A Kantian Conception of Equality” (1975) in S. Freeman, ed., John Rawls: Collected Papers (Cambridge MA: Harvard University Press, 1999) at 254–66. 50 Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974). 51 Pearson, supra note 3. 52 Pat Duffy Hutcheon, “Value Theory: Toward Conceptual Clarification” (1972) 23 The British Journal of Sociology at 177. 53 Ibid. 54 Trudgen, supra note 3 at 68–136. 55 Sue Jones, “The Analysis of Depth Interviews” in Robert Walker, ed., Applied Qualitative Research (London: Gower Publishing Company, 1985) at 56–70; Sue Jones, “Depth Interviewing” in Robert Walker, ed., Applied Qualitative Research (London: Gower Publishing Company, 1985) at 45–55. 56 Paul D. Reynolds, Michael Camp, William D. Bygrave, Erkko Autio, and Michael Hay, Global Entrepreneurship Monitor 2001 Executive Report (Kansas City, MO: Kauffman Center for Entrepreneurial Leadership, 2001). 57 John W. Cresswell, Research Designs: Qualitative and Quantitative Approaches (Thousand Oaks, CA: Sage, 1994) at 11. 58 Barney Glaser and Anselm L. Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (Chicago: Aldine Publishing, 1967). 59 For a particularly rich and illuminating account of the continued hegemony of Canada’s Indian Act, see Darcy Lindberg, “Miyo Pimâtisiwin and the Politics of Ignorance,” chapter 7 of this volume. 60 Kevin Hindle and Susan M. Rushworth, Yellow Pages® Global Entrepreneurship Monitor: Australia 2000 (Melbourne, Australia: Swinburne University of Technology, 2000). 61 Welsey-Esquimaux and Calliou, supra note 7. 62 Jones, supra note 55. 63 Klaus Krippendorf, Content Analysis: An Introduction to Its Methodology ­(Beverly Hills: Sage, 1980). 64 Glaser and Strauss, supra note 58. 65 Kevin Hindle, “An Enhanced Paradigm of Entrepreneurial Business Planning: Development, Case Applications and General Implications” (PhD diss., Swinburne University of Technology, 1997) [unpublished]; John M. Legge and Kevin Hindle, Entrepreneurship: How Innovators Create the Future (Melbourne: Macmillan, 1997); Hindle, supra note 13; Hindle and Lansdowne, supra note 4. 66 Thomas Kuhn, The Structure of Scientific Revolutions, 2nd enlarged ed. ­ (Chicago: University of Chicago Press, 1970). 67 Hindle, supra note 65; Hindle, supra note 13. 68 Hindle, supra note 13.

Community Economic Development Research and Facilitation  77 69 Virginia Braun and Victoria Clark, “Using Thematic Analysis in Psychology” (2006) 3 Qualitative Research in Psychology 77–101. 70 Glaser and Strauss, supra note 58; Melanie Birks and Jane Mills, Grounded Theory: A Practical Guide (Thousand Oaks, CA: Sage, 2011). 71 Johnny Saldana, The Coding Manual for Qualitative Researchers (Thousand Oaks, CA: Sage, 2009); Birks and Mills, supra note 70. 72 James P. Spradley, Participant Observation (New York: Holt, Rinchart and Winston, 1980); Graham R. Gibbs, “Comparative Analysis” in G. Gibbs, Analyzing Qualitative Data (London: Sage, 2007) at 73–89. 73 Yvonna S. Lincoln and Egon G. Guba, Naturalistic Inquiry (Newbury Park, CA: Sage, 1985); Max Eldon and Morten Levin, “Co-Generative Learning: Bringing Participation into Action Research” in W.F. Whyte, ed., Participative Action Research (Newbury Park, CA: Sage, 1991) at 127–42. 74 Glaser and Strauss, supra note 58. 75 Hindle and Lansdowne, supra note 4. 76 Ibid. at 140. 77 Hindle and Moroz, supra note 5.

4  Economic Justice in Practice robert hamilton , ryan beaton , and joshua ben david nichols

Introduction This chapter discusses Indigenous economic development in Canada. The research in this chapter is based on interviews with Indigenous leaders in the political and business spheres and individuals working in Indigenous economic development in various capacities, from training, financing, and planning, to execution. We did not to attempt to develop an empirical base of knowledge with the results of these interviews. Rather, we sought to gather a range of perspectives from those working in economic development and governance in – and with – Indigenous nations, primarily in British Columbia. We did not set out to determine universal truths about economic development in Indigenous nations. Instead, we sought to understand the perspectives of those working in the field and to gain insights from individuals well situated to provide valuable knowledge on the basis of their experience. The aim was to gain a range of perspectives on issues of economic development, looking at questions such as what is working, what is not working, what are barriers to economic development, what future opportunities exist, and what are the keys to taking advantage of those opportunities? What we draw out here are a set of common themes and approaches that came out during our interviews. We have taken parts of these interviews that touched on the themes we are dealing with in this chapter and connected them to themes developed in other chapters in this collection. This has the benefit of providing the reader with an overview of themes that came out in all of the interviews. We acknowledge that it is also one that is inevitably skewed by and through the process of interpretation, and we have tried to allow interviewees own voices to come through as much as possible.

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In short, we wanted to understand what challenges and opportunities people are facing and how they are responding, with an emphasis on questions of law, policy, and governance. Our interview style was conversational, as we hoped to avoid excessively leading questions, instead letting the interviewees guide the conversation. This has made it more difficult to summarize the responses, but we hope it will allow the diversity of experiences and knowledge that we encountered to come through. In conversation with the interviewees, we decided to preserve anonymity so that they could talk more freely about challenges facing their nations. From this, we have produced what we hope is an accounting of approaches and perspectives that may be of some value to those working in economic development or those seeking to better understand this important aspect of Indigenous nation-building. As one of our interviewees put it, “The bottom line is, you open that fridge door at the end of the day, and economic development means you either have food or you don’t have food.” Economic development, on this view, starts with basic issues of sustenance and works towards meaningful resurgence and revitalization. Sovereignty and Self-Government Before we set out the various approaches and perspectives that we encountered relating to these issues, we will sketch out the more general features of the legal landscape to provide the reader with some points of orientation. Central to the concerns of all interviewees was the issue of Indigenous autonomy, voiced variously as self-government, sovereignty, and self-determination. The issues of sovereignty and self-government exist on the ground in tightly packed relationships that overlap and crisscross one another in ways that makes them difficult to tease apart. This is unsurprising given that they are related at a conceptual level and exist in a context of active contestation. The concepts of sovereignty and self-government fit together in such a way that it makes it difficult to say that you can have one without the other. A people that is sovereign is, in almost all cases, also considered to be self-governing. Yet the question of whether the inverse is true can lead to severe practical difficulties. We have two particular examples in mind here. First, federal constitutional arrangements exist in which the concept of sovereignty is explicitly shared in such a way that multiple sub-state societies can form a plurinational state where each is largely self-governing and can play a role in determining the direction of the composite whole (e.g., Catalonia within Spain, Scotland within the United Kingdom, and Quebec

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within Canada, among others).1 The second, and decidedly unhappy, example is indirect rule. This concept describes a situation in which a given people believe that they are both sovereign and self-governing, but the actual determining power is held by an outside actor. This form of relation relies on state or imperial power to subdue subject peoples and lend legal legitimacy to expropriate of lands and resources in colonial spheres. This pernicious form of governance can be clearly seen in British imperial policy from the mid-nineteenth century, as well as in the United States and the use of so-called informal imperialism starting in the twentieth century.2 In Canada this colonial relationship was internalized following Confederation with the colonial rule over Indigenous peoples that began the take shape after the War of 1812 being cemented.3 Indigenous peoples, however, have consistently rejected the imposition of colonial authority. The relationship between sovereignty and self-government in Canada, then, is complicated by the fact that the meaning of these concepts in the Canadian context has been actively contested for over 150 years. Like any active conflict, it is difficult to give a clear picture of the positions of the involved parties as they are always in motion, but it is possible to offer a rough sketch. The general position of the Government of Canada is that it is sovereign and Indigenous peoples are a special category of subjects. This part of the picture has been a constant since Confederation and it remains the anchoring point of the current framework of law and governance, including discussions of self-government. By this logic, Indigenous governments, even under negotiated self-government agreements, are confined to the municipal level within the division of powers. The more dynamic part of the picture has been the precise nature of their “special” status or, in other words, the meaning of Aboriginal rights. From Confederation in 1867 to the Calder decision in 1973, the general notion was that these rights were, to use the words of Lord Watson in the St. Catharine’s Milling decision, a “mere burden” that were “dependent upon the good will of the sovereign.”4 The practical meaning of this was that Crown sovereignty was indeed subject to qualification in relation to Indigenous peoples, but it was a self-issued qualification and could therefore be unilaterally removed.5 This picture of Aboriginal rights underwent a dramatic sea-change in Calder when a majority of the Supreme Court of Canada found that the rights of Indigenous peoples were not solely derived from the Crown, but were inherent in the fact that “when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries.”6 This necessarily complicates the

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Crown’s claim to sovereignty. If Aboriginal rights are inherent, how can the Crown unilaterally revoke them? The “clear and plain” intent standard for extinguishment is maintained in Calder, but its actual legal justification is not provided. There is simply the assumption of Crown sovereignty included certain powers in relation to Indigenous interests. The picture post-Calder has largely continued to orbit around this hinge (as John Borrows refers to it, “sovereignty’s alchemy”).7 Within this picture, Indigenous peoples remain fixed within a delegated model of government, but the precise lines of jurisdictional authority are blurry. This is in part because Indigenous claims to jurisdiction are frequently framed as discrete rights claims and partly because a federal policy of recognizing Indigenous self-government has tended to be contingent on subsequent negotiation and delegation. The recognition of inherent authority has not been given tangible expression. The blurry jurisdictional lines result in frequent litigation that is both costly and uncertain. The courts have increasingly recognized that there is a problem of legitimacy at the heart of the constitutional order and that the mere assertion of the Crown’s sovereign authority does not provide a sound legal or normative basis for the elimination of inherent Indigenous political authority. Yet the type of autonomy required to drive social and economic development has developed slowly and been recognized begrudgingly. With that rough sketch in place, we can move on to consider how the Indigenous political actors we interviewed view the current state of sovereignty and self-government and what they understood as the implications of this for economic development. In the interviews, a constellation of related approaches emerged that can be grouped together under the provisional label of de facto self-government. This label will require some unpacking and can be set out on an ends-means type continuum in order to get our bearings. The general end goal was for the Indigenous nation to be able to exercise jurisdiction over their territory. As one of our interviewees put it, “If you take it a step further, which is probably the preferred route, a law that says if you want to cut through our traditional lands – this is the law for environmental assessment, right? If you want to come through our territory, here’s our traditional use map, this is an area where we do not allow any development. There you are asserting authority, you’re exercising power.” Bundled together with this general aim were a set of aims that included the ability to exercise environmental stewardship over lands through Indigenous laws, to make use of a land base for economic development, and to have a determining say over which resource extraction projects

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take place on those lands.8 There were a number of means or practices that were employed to achieve this end, from using signs to assert territorial sovereignty, using blockades to halt projects that they did not consent to, developing Indigenous environmental assessment processes, and using Indigenous governments to generate law and policy governing Indigenous lands. It is possible to read over this set of tactics as not indicative of a significant strategic shift. After all, there is a long history of blockades and other forms of resistance. Why, then, should these moves now be thought of as practices that aim at de facto self-government? The object of comparison that helps us to see the significance here is de jure self-government.9 That is, the struggle over the recognition of the legal legitimacy of Indigenous self-government. While this has always been a feature of the push for Indigenous self-government (going back to the pre-Confederation treaties in the eighteenth century), it gained ascendency as the predominant aim following the passing of the Constitution Act, 1982 and in the decades of legal interpretation that followed. This is by no means surprising as the new constitutional document seemed to offer up the possibility of shifting the deep (and unilaterally drawn) jurisdictional lines set out in what is now the Constitution Act, 1867. As one of our interviewees explained, Before the constitutional table was even set up in 1982, the political movement of the First Nations was already on a different path, anyway. We were already talking about the assertion of our rights, the de facto assertion of our rights. Right? Whether the law allowed it or not, it was immaterial. We were going to assert our autonomy, and we would expand our land base, right? And up until then, it was just rhetorical talk, right? And then the constitutional process started, but I think we need to get back to that conversation about de facto autonomy, you know. Our people taking the steps to begin asserting their authority over their lands and making sure that other people respect that.

This shift in focus that de facto self-government represents is to move from first looking for legitimacy via the recognition of the Canadian state and instead focus on exercising practical jurisdiction on the ground. As another of our interviewees put it, “I think it’s important for the First Nations to really, to take proactive ownership of their traditional territories.” Another told us, “Stage one in enforcement of your sovereignty is to get people to recognize your sovereignty … So we say, start with a sign, then enforce the sign, and the community at large and the world at large will start to acknowledge and recognize the [Indigenous] sovereignty over this particular area we’re talking about.”

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This is not an either/or approach; it is perfectly possible to aim at that legal recognition by exercising practical jurisdiction. It does, however, signal a shift away from using litigation as the primary means to secure the legal recognition of jurisdiction to simply pushing forward with policy and systems of governance on the ground. As one of our interviewees pointed out, “You begin by – you begin that by looking after your land, right? Not just the reserve, but the land outside the reserve as well. To be stewards, you know? Be guardians of your lands.” This ties back to the point made earlier regarding the erosion of the Crown’s claim to de jure sovereignty in the case law after rights were constitutionalized in 1982. There is a sense in which the case law has matured to a point where the outcomes of particular types of conflict can be anticipated. With recent cases like Tsilhqot’in Nation, Grassy Narrows, Clyde River, and Chippewas of the Thames, a general framework for section 35 has been set out that places Indigenous title lands under overlapping provincial and federal jurisdiction and subjects them to a consultation process that is carried out by arm’s-length regulatory tribunals.10 Thus, despite acknowledging that the Crown’s claim to sovereignty over Indigenous peoples is based on a unilateral assertion, the range of the Crown’s de facto sovereignty has been effectively expanded to include Indigenous title lands.11 With the laudable recognition of Aboriginal title in Tsilhqot’in Nation, the Court both maintained the possibility of unilateral infringement and rejected the application of the doctrine of interjurisdictional immunity, effectively subjecting Aboriginal title lands to the overlapping jurisdiction of both the federal and provincial Crowns.12 The strategy of focusing on de facto practices of self-government has the benefit of shifting the optics of conflicts. It can be thought of as a general move away from Indigenous individuals challenging provincial regulatory systems and towards Indigenous governments doing so on the basis of assertions of inherent jurisdiction. This conflict of de facto governments has the benefit of drawing attention to the question of the Crown’s de jure legitimacy and the added benefit of highlighting the fact that the nature of the Crown’s de facto claims to sovereignty over Indigenous lands is also limited. That is, Indigenous territories are often located far beyond the administrative resources of the provinces and/ or the federal government, so much so that the Crown has difficulty enforcing its own environmental laws and land use regulations. This serves to both expose the fact that even de facto claims are uneven at best, and it also opens up areas where co-management relationships can be established that serve to establish de jure legitimacy over time by a process of accretion.13 This, coupled with the general shift in the approach of the Government of Canada on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the recent publication of ten Principles

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Respecting the Government of Canada’s Relationship with Indigenous Peoples, has contributed to a growing sense that a notion of absolute Crown sovereignty that once seemed solid has begun to move in a way that favours de facto self-government as the predominate approach.14 Empirical work in the American context has concluded that the de facto exercise of Indigenous sovereignty is essential to creating viable and sustainable economic development. Stephen Cornell and Joseph Kalt, lead researchers on the Harvard Project on American Indian Economic Development, argue that “shaping [flourishing Indigenous] futures will require not simply the assertion of sovereignty, a claim to rights and powers. It will require the effective exercise of that sovereignty.”15 Accordingly, they argue that the keys to successful economic development in Indigenous contexts have less to do with the presence of resources, education levels, or other indicia often identified in development models than with the ability of Indigenous nations to create environments for successful economic development initiatives through the exercise of autonomy. The key to the development of these environments, in turn, is Indigenous control over their own affairs and an emphasis on “nation-building” as opposed to development per se.16 Cornell and Kalt’s approach has been critiqued as prioritizing the adoption of capitalism and designing criteria for success around the needs of capitalist development.17 While we might question the efficacy of attacking an approach whose conclusions so strongly support the necessity for Indigenous self-determination, it is not necessary to address this critique here. The aim of this chapter is to detail the beliefs of those interviewed – they believe the de facto exercise of sovereignty is essential to the type of development that they themselves want to see. It is not our task here to assess their beliefs on the basis of pre-determined political or theoretical commitments.18 Accordingly, the remaining sections of this chapter identify barriers to development and practices of overcoming them in which the “development” which is understood to be desirable is identified by the interviewees themselves. Barriers to Economic Development As noted above, interviewees stressed in various formulations that it was crucial for Indigenous communities to renew and develop their own governance structures and assert sovereignty over their lands, independent of any authorization by the Canadian state. Taking “proactive ownership of traditional territories” and the need for “a land base for economic development” were key themes that emerged in the interviews. Given this emphasis on asserting ownership and jurisdiction over a land base, it is no surprise that interviewees pointed to the legacies of

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territorial dispossession and oppressive state control of Indigenous life as lasting barriers to economic development. This section of the chapter highlights some of the most significant barriers as described in the interviews: enduring effects of territorial dispossession; oppressive state control and restrictions on self-government; enduring effects of social disruption; and obstacles to accessing capital. a) Overview: “The most racist piece of legislation you can imagine” Spanning almost the full history of Canadian confederation, the Indian Act continues to cast a long shadow over the relationship between Indigenous peoples and the Crown in Canada. The policy animating the Indian Act has had the explicit aim of breaking down and ultimately eliminating the distinct political, social, cultural, and economic fabric of Canada’s First Nations. The anger and depth of feeling provoked by this “most racist piece of legislation” were clearly conveyed by one of our interviewees: So we’re subject to the laws of Canada and BC and the application of those laws, often to the direct detriment of [our] interest in the territory. It’s endemic and systemic and it touches everything that we do. Way beyond just the economic development issues, to issues of governance, I mean we’ve got … this act, the Indian Act, based on ethnicity, and we’ve got a whole industry designed around keeping the Indians subservient and dependent, and that’s basically what the Indian Act is all about. It’s the most racist piece of legislation you can imagine, and it has far reaching and long, generational impacts on such things as requiring the band council structure to operate in a certain way, and requiring you to jump through a bunch of hoops to declare yourself independent from that process, which [we] haven’t done. So they follow the Indian Affairs election process, which is ridiculous because it requires you to have an election every two years, and there’s no jurisdiction anywhere in a democratic society that would have a two year legislative cycle, because that clearly and simply is not long enough for the legislators to begin to understand their role long enough to be effective at doing their job. So it’s designed and intended to keep the chief and council incompetent enough to rely upon and stay dependent upon Indian Affairs. And then they make it worse by tying legislative authority to budget authority. There’s just so much wrong with the Indian Act.

In order to place the discussion of specific barriers to economic development in context, particularly those contained in the Indian Act, it might be helpful to recall very briefly the policy of Imperial Britain

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in the eighteenth century, as articulated notably in the Royal Proclamation of 1763. As explained by the Royal Commission on Aboriginal Peoples (RCAP), the Crown, through the “authoritative statement” of the Royal Proclamation, “offered its protection to the Aboriginal peoples as self-governing nations whose relative political autonomy and land rights it recognized.”19 In particular, the Royal Proclamation was designed to protect the land base of Indigenous peoples by restricting the “purchase” of Indigenous lands to the Crown alone and only with the consent of the Indigenous nation choosing “to dispose of” their lands.20 RCAP characterizes the “early British Imperial system” expressed in the Royal Proclamation as “tripartite: it included the imperial Crown, the colony, and the Indian nations.”21 Referring to the period in which the Royal Proclamation was issued, RCAP notes: “The Supreme Court of Canada has reviewed the nature of relations between the Crown and Indian nations during this period in Canadian history, concluding that for the British it was ‘good policy to maintain relations with them very close to those maintained between sovereign nations.’”22 In the decades leading up to confederation, the imperial Crown and colonial governments started turning away from this nation-to-nation relationship, and in the decades following confederation, the federal government came to fully embrace and unilaterally impose assimilationist policies on Canada’s First Nations, above all through the legislative vehicle of the Indian Act. First Nations have continuously resisted these policies, which continue to present significant barriers to Indigenous economic development. A number of these barriers are reviewed in the following sub-sections. b) Erosion of the Land Base As one interviewee succinctly stated: You definitely need a land base for economic development. That’s the issue. A lot of First Nations, they have a land base, but they’ve never taken the initiative to protect their area. Some have. The ones that have, they’ve done ok. The other ones that haven’t done much to protect their area, they struggle. Because once you try to exercise ownership when you’ve let it lapse for so many years, it’s difficult.

Indeed, the importance of having a land base, in particular one over which the Indigenous people in question can exercise effective decision-making, was stressed by a number of interviewees. The link between having a land base and the ability to exercise effective self-government was also

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explicitly drawn: “And the thing is, a fair amount of jurisdiction over people gets tied to the land base. So if you don’t have a land base, it’s not impossible, and I think the cases have shown it’s not impossible, but it is more limiting.”23 Yet the long history of territorial dispossession has left Indigenous peoples with drastically reduced land bases from which to develop politically and economically. Moreover, as discussed further below, even where First Nations have reserve land or claim Aboriginal title over traditional territories, Crown policies and legislation seriously constrain their ability to exercise effective control over land and resource management decisions. The territorial dispossession of Indigenous peoples took many forms. Extensive territories were “ceded” in historical treaties in the decades following confederation, as those treaties are understood by the Canadian state. However, that interpretation does not accord with Indigenous views.24 As one interviewee noted: The other piece is, when you’re comparing Treaty 8 to the rest of BC, according to the Treaty and according to the government, they’ve ceded the land. Their only ownership is the reserve. From their [First Nation] perspective, they agreed to share the land, not to give them the land. So there’s always this ongoing battle over what land entitlement and treaty entitlement means here in BC. Because there’s this old treaty, the province deals with the First Nations here differently than they do every other nation in BC.

Throughout most of British Columbia, treaties were never concluded.25 Thus many First Nations who never entered into treaties with the Crown continue to assert ownership and sovereignty over their traditional territories. These assertions are interpreted as claims for Aboriginal title in Canadian state law. Although Canadian courts and governments now recognize that Aboriginal title was not extinguished by Crown assertions of sovereignty, they place a heavy burden on First Nations to establish their claims of Aboriginal title, as witnessed by the long, expensive, and arduous process followed by the Tsilhqot’in Nation in finally winning recognition of their claim to Aboriginal title. Another method of reducing the Indigenous land base involved rejection of the Royal Proclamation requirement that Indigenous peoples had to consent to the surrender of their land before the Crown could acquire it. Beginning in 1880, a long series of amendments to the Indian Act gave the federal government increasingly broad powers to expropriate Indigenous lands without the consent of the Indigenous peoples affected. The minister responsible for administering the Indian Act was also given

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increasingly broad powers of supervision and control over the use of lands that were retained as reserve lands.26 c) Oppressive State Control and Restrictions on Self-government Not only has the land base of Indigenous peoples been drastically reduced through these various mechanisms of Crown treaty interpretation, expropriation, and assertions of de facto control, but further legislative and administrative measures have greatly constrained the decision-making powers of Indigenous communities over the land base which they are able to access. Historically, many of these measures were explicitly designed to tear down the traditional social, cultural, political and economic fabric of First Nations in the name of “civilization,” “assimilation,” and later “equality” and “citizenship.” Although these justifications have now been officially abandoned by Canadian courts and governments, many of the measures themselves are still in force, primarily in the Indian Act. On the whole, these measures constitute a major obstacle to Indigenous economic development. In 1869, the Canadian Parliament adopted the Gradual Enfranchisement Act, a legislative precursor to the Indian Act. As the RCAP notes, “[T]he Gradual Enfranchisement Act marked the formal adoption by Parliament of the goal of assimilation. It [introduced] measures that would psychologically prepare Indians for the eventual replacement of their traditional cultures and their absorption into Canadian society.”27 In particular, the act imposed an elected band council system on Indigenous communities, undermining traditional governance structures. Moreover, the act gave sweeping powers to the superintendent general of Indian affairs (at that time the government official tasked with administering the act) and to local Indian agents in supervising and guiding the work of band councils.28 Even the nominal powers of the band councils gave them authority only over “relatively minor matters: public health; order and decorum at public assemblies; repression of ‘intemperance and profligacy’; preventing trespass by cattle; maintaining roads, bridges, ditches and fences; constructing and repairing schools and other public buildings; and establishing pounds and appointing pound keepers. There was no power to enforce this authority.” Ultimately, this “restricted list of powers became the basis for the powers accorded band councils under the later Indian Act.”29 As quoted above, one of the interviewees underscored the intent of Parliament in imposing this system of governance, namely to establish and recognize Indigenous “self-government” only to the extent that

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Indigenous representatives were dependent on the Canadian government and bureaucracy: “So it’s designed and intended to keep the Chief and council incompetent enough to rely upon and stay dependent upon Indian Affairs.” Indeed, the same interviewee stressed that “keeping the Indians subservient and dependent [is] basically what the Indian Act is all about.” Another interviewee expressed similar frustration with the band council system as cultivating a state of dependence and undermining local Indigenous initiatives, pointing to business literacy in particular: The big thing is business literacy. You know with First Nations there’s just this culture that government have created over the years that, you know, the band will do it. And there’s not a lot of self-autonomy given to people, I don’t think. That’s just my personal opinion. There’s just not enough self-autonomy given to people, you know, to go out and do well on their own, everything’s got to be band operated.

Oppressive state control has also made it difficult for First Nations to capitalize on victories in the courts. As one interviewee put it: I think all of the victories in the last few years have been monumental land victories for First Nations. But it’s going to be a lot longer before that translates to working policies. We hear of fisheries cases that have been won 10 years ago but it’s really been no different at the community level than it was 10 years before the case. So government not only has to make a commitment once First Nations win those cases to do better, they have to make a commitment that the policies and procedures will be put in place so that the result of that case is felt at the community level.

In other words, even where a nation is able to meet the high burdens established by the courts to demonstrate the existence of an Aboriginal or treaty right, translating this right to meaningful control over a resource, such that it may be used to spur economic development, has been difficult. Interviewees identified two main causes of this. The first is the court’s narrow interpretation of rights, which makes commercial rights extremely difficult to prove. Even where such rights can be established, the court’s creation of a “moderate livelihood” standard – which establishes a ceiling for protected economic activity – limits the extent to which commercial rights can spur economic activity.30 The second cause is bureaucratic intransigence. As several interviewees stated, government departments are often reluctant to cede control over a resource to Indigenous peoples, even where a right in relation to that resource has been

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won.31 Restrictive licensing regimes and government oversight make it difficult to exercise jurisdiction or de facto sovereignty in relation to judicially recognized rights. d) Obstacles to Accessing Capital and Managing Resources Beyond the general historical intent of the Indian Act and its legislative precursors to undermine Indigenous self-government, the Indian Act today retains barriers to the exercise of specific self-government powers on the part of First Nations. Perhaps most significantly in the context of economic development, the Indian Act continues to grant the minister of Indian Affairs and Northern Development broad powers of oversight and control over how “Indian moneys” are used. As one interviewee stated: A good example of it is that the bureaucrats in Indian Affairs have a significant impact on your budget. They tell you how much money you can get and what you can use it for. Now, that’s completely anathema to me because you’re talking about what’s supposed to be a municipal or provincial style government, and can you imagine the government of BC, for example, having it dictated to them how much money they can raise and what they can spend it on? I mean, that’s totally ridiculous, it would never happen, right. But every day it happens in First Nations. One of the things for example is they give you a budget for your administration and they tell you, “this is how much money you can pay for a Chief Administration Officer.” Well, that’s a pretty significant important role, a pretty significant set of skills, and that person should be fairly well compensated. But they’re not allowed to pay that person what they’re worth from their budget, they have to find other outside sources to supplement that wage if they’re going to pay higher than what the government tells them they can pay.

Indigenous people living on reserve have often had difficulty accessing capital for the specific reason that the Indian Act prevents them from using reserve property as collateral for securing loans. However, one of the interviewees, who worked for a First Nations lending agency, pointed to how First Nations, in part with the help of recent legislative initiatives from Parliament, have begun finding ways around this restriction: interviewer: Have statutory changes, moving beyond the Indian Act a little bit, things like the Land Management Act or the First Nations Financial

Economic Justice in Practice  91 Management Act, have those sorts of statutory changes made a change to the environment you’re working in? interviewee: To a limited degree. We’ve worked with the First Nations on the basis of them being more like a municipality in any event, so we’re not looking from the aspect of what sort of hard security can we take, and obviously with the Indian Act we’re limited in the scope there, but we’ve found that it’s worked well for us, because we realized that the First Nations aren’t going anywhere, they’re not going to pack up and move to Idaho, so we’ve found that’s it’s worked fairly well. And for accessing more conventional financing, especially larger financing, it has had a positive impact. And it’s nice to see. We look at a lot of projects nowadays where the banks are providing them at, financing at a really nice interest rate and taking reasonable security for them, which is what they should be doing, but which is what they weren’t doing.

Other interviewees, however, stressed that difficulty accessing capital remains a significant barrier to economic development: One of our drawbacks is that we don’t have the cash or borrowing power to really get into eco-tourism and the other contracts that we need to. If we had the economic power, if the lending rates were reasonable so that we could get more loans, we would probably have all of our community involved in the eco and cultural tourism.

The interviewee went on to note that at least in some instances the difficulty First Nations face in accessing capital is also in part due to a different set of values and considerations at play when First Nations themselves engage in economic development of local resources, particularly human resources: First Nations economies overall, one of the biggest barriers is that First Nations communities overall have different values for economic development than mainstream communities. So it’s not always like, who can make a million dollars at the end of the year? It’s, how many families have been fed? Are our own people running those businesses? So the values are much different, and those are values that the banks don’t look at. Banks don’t want to hear break even, right, they want to hear major developments.

The state legislative and regulative apparatus laid over Indigenous communities restricts not only their access to capital, but also

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management of their lands and resources. The result can be to erect further barriers to Indigenous economic development. As one interviewee told us: If we run a restaurant right now, like, we can’t even purchase our own fish from our own fishermen to – and then feed, you know, our patrons. We have to go to a facility where they’re certified and so on. … Again, with our sports fishing, like I keep thinking with sports fishing if we just not do the catch and release, but they catch extra fish, and then we can take that fish and process it, and then that fish goes back as food fish to the community or it goes back as food fish – or fish to our local restaurants or something like that. Like, we can use it on a commercial basis. Like that kind of a law I would look at changing.

These explanations provided by interviewees of the obstacles confronting Indigenous economic development underscore the continuing legacy of the Indian Act and other oppressive measures taken by the British colonies and, later, the Canadian state. While government officials may now disavow the racist history behind such legislative and administrative measures, the effects continue to impact Indigenous social and economic development. These effects include, perhaps most notably, the widespread territorial dispossession that has drastically reduced the land base of Indigenous communities and the heavy bureaucratic hand that still weighs on First Nations through the Indian Act in particular. e) Enduring Effects of Social Disruption A further theme that was addressed by a number of interviewees was the legacy of social disruption caused by colonial efforts to dismantle Indigenous social, cultural, political, and economic structures. For many families and entire communities, those efforts brought devastating effects. The recent report of the Truth and Reconciliation Commission has detailed much of that legacy as it pertains to residential schools in particular.32 In our interviews, this legacy was touched upon not only in terms of substance abuse and related difficulties, an issue often highlighted in the media, but also simply in terms of training workers and developing human resources in communities that face considerable challenges in renewing and rebuilding social, cultural, political, and economic

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structures. As one interviewee explained in describing a carpentry training program that was partnered with a local college: We lucked out because we ended up training – we had nineteen in our class and one of the things we found was that because for so many years, you know, a lot of our young guys didn’t have jobs, they slept till like 2:00 in the afternoon, stayed up all night, you know, played games, partied. You know did a lot of drugs, that type of thing. All of them except for two were in the court system.

The interviewee went on to explain how the training program was successfully modified to take into account the life paths of the trainees: We knew that when we started the program we had to, you know, present it in a different way. So they were taking their theory – like they did a math class and this is kind of where we – kind of the “aha moment” for us was, they did a math class and absolutely everybody in the class failed. That’s because they had been out of school for so long. Some of them had dropped out in Grade 10, you know? Like so – or 11 so they weren’t really – we just didn’t prepare them enough. So we ended up running a life skills program and team building and I showed them the secret, you know, to inspire them, but then we also hired a local carpenter and gave him the task of teaching them how to build this – it was a balcony.

On a more general level, another interviewee emphasized the need to tailor the size of projects to the available work force, at least at the outset: A lot of time we can’t find enough workers. So we focused on training … You can have all the plans in the world, but if you can’t afford to operate it, you don’t have the capacity to manage it, it’s never going to be a First Nations entity. So you’ve got to start small, and you’ve got to start building up your people while you build up your projects.

The social, cultural, political, and economic disruption wrought by the Indian Act and other government measures affecting First Nations has created the particular burden, among many others, for Indigenous communities today to develop basic job training to support local businesses, and often to help create those local businesses in the first place. In short, economic development in many First Nations today must begin either from the ground up, so to speak, or in any case at a historical disadvantage caused by a legacy of colonial disruption.

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Overcoming Barriers and Taking Advantage of Opportunities: Lessons Learned and the Path(s) Forward Having considered the barriers to economic development and opportunities for future development, our interviewees also detailed specific responses, ways to move past barriers and take advantage of opportunities. The questions put to them asked them the various ways they have seen these goals achieved. In many cases the responses are case specific: each nation has unique needs and values and there is no set of practices that will be universally applicable. As the RCAP stated, “One of the implications of this diversity is that it is no longer helpful, if it ever was, for economic development policy to be issued from Ottawa or a provincial/territorial capital and applied uniformly to a range of conditions. This is one of the compelling reasons for locating authority and resources to support economic development in the hands of appropriate Aboriginal institutions at the level of the Aboriginal nation and community.”33 Nonetheless, identifying practices that have been successful may assist First Nations in identifying practical solutions to their challenges. The responses can be broken down into four rough categories: training and education, organizational structures, negotiated agreements, and self-sufficiency. Again, our interview style intentionally sought to avoid leading the discussion too much, hoping to be guided by the interviewees themselves. Accordingly, the views provided fit into categories in an imperfect way. a) Training and Education Training and education were repeatedly identified as essential to taking advantage of opportunities for economic development. This took several forms. Some interviewees were of the view that a lack of business expertise in First Nations has often been a barrier to development. On this view, strengthening business training for decision-makers could lead to better development outcomes. Further, having Indigenous people educated in business was seen as being beneficial as it would reduce reliance on non-Indigenous consultants, many of whom are viewed with a degree of suspicion. The need for business education runs both ways, as some interviewees posited that a lack of business knowledge in INAC hampered development opportunities as well. The development of business knowledge within nations and in the bureaucracy were thus identified as essential. Another approach is training for specific job skills. All interviewees voiced the same opinions as the scholarly work in the area, arguing that

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the training of a more skilled labour force would create the ability to take advantage of existing opportunities and create new opportunities. A number of such initiatives were outlined by interviewees. The most successful focused on small scale training, at times one person at a time for specific jobs, and training associated with entrepreneurial undertakings. Small scale training involved projects such as paying forestry contractors to train a First Nation’s member. Another involved training a single individual to participate in several small-scale commercial fisheries, from urchin diving, to herring fishing, to long-line halibut. Such projects allow an individual to diversify their expertise while keeping the nation connected to a number of historical resource uses. The focus here is on building sustainable community development through individual projects and people. As one interviewee put it, “We’re trying one by one, piece by piece, to rebuild the local commercial fishing.” The emphasis in this project was not on formal skills training programs, but “on the job” training through mentorship in specific local industries. The need to build capacity through small scale projects was echoed by others: “you’ve got to start small, and you’ve got to start building up your people while you build up your projects.” This approach was seen as necessary both because the financial resources were only available for small scale projects and because this approach allowed projects and jobs to be community driven. Other benefits cited were the development of work experience. For example, the program outlined above taught the skills required to work in the service industry in the hopes that this would increase people’s chances of finding employment in the field. In these approaches, the individuals interviewed seem to have begun navigating the problem that training dollars are often inefficient at creating long-term employment opportunities, an issue identified in earlier studies.34 A second approach involves entrepreneurship training itself.35 Approaches that have seen success involve mentorship in taking a business idea from the conception stage to financing, through to the operation of a business. This often begins with the development of a business plan, the identification of available funding, funding applications, and so on. Interviewees believed on the whole that there were sufficient funding opportunities for Indigenous entrepreneurs. The challenges they identified involved a lack of knowledge of those programs and lack of capacity to navigate them. Training thus targeted these challenges in several successful situations. Among these, many lenders had higher success rates than the Canadian norm. Interviewees attributed this in part to the level of planning required and assistance provided at the planning stage. As one said: “Our success rate is actually higher than the Canadian average and has been for several years. Main reason to it is that we require in

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each case that there be at least a reasonable business plan, so reasonably effective planning.” This includes planning for change: The thing is that there’s no tribe or First Nation that is immune from a global economy, and unless you’re thinking of the global economy while you’re doing local planning you can get offsided. Plan for change. You can have something that works on the first day and works on the second day, but by the fifth or sixth day, if it really starts growing, one has to be able, from a tribal leadership standpoint, to be able to transform the company as it grows.36

Training was also taken on to deal with labour shortages on First Nations themselves. In several instances, economic development corporations or band governments developed training programs to create a labour pool for themselves. It should be noted that training, while important, was not seen as sufficient in itself to produce economic development. This follows the Harvard Project findings, which found that education levels, for example, did not in themselves predict economic development outcomes, and RCAP, which suggested that to “pretend that economic development can be achieved within the limits of the status quo simply by training entrepreneurs or improving their access to capital is to maintain the cycle of disadvantage of the past two centuries.”37 b) Organizational Structure One feature consistently highlighted was the need for First Nations, both in terms of governance and economic development bodies, to be well structured.38 Much of the discussion here centred on the question of the division between economic development and politics. Different opinions were given on the importance of such a separation. While opinions differed on whether it was necessary, however, most agreed that in the long run it was desirable. Those who hedged on whether or not the political branch should have control over economic development initiatives pointed to examples where such control has not seemed to hinder development. Indeed, there are several examples, including some of the most economically prosperous First Nations in the country, where there is little separation between “business and politics.” Even in these cases, however, it was generally acknowledged that the development success was contingent on the personalities and capacities of particular individuals and that a failure to keep politics separate from business decisions could be detrimental in other situations.39 While there was no clear agreement, then, on the issue of whether, or to what extent, business

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and politics should be separate, it was generally agreed that it was an issue that required attention and that safeguards should be put in place to ensure that political influence did not undermine opportunities for economic growth.40 Where separation has been sought, the most common approach among the First Nations interviewed has been to establish an arm’s-length economic development body, such as an economic development corporation. While such bodies may still be subject to political influence, the legal structure of the corporation provides options for effecting separation. Under one model discussed by interviewees, a development corporation is established which is fully independent of chief and council, including an independent board of directors. To ensure a complete break, the shares of the corporation may be held by a trustee nominated by chief and council. Such arrangements are not always popular with the political branch, who according to some interviewees felt too disconnected from important decisions. Nonetheless, such an arrangement makes it more likely that decisions are taken on the basis of business, rather than political, rationales. Advocates of a strict separation of business and politics point to other important roles for the political branch, such as ensuring access to resources, building infrastructure, strategic planning, emphasizing training, and developing policies which assist the development environment and reflect the desires of the people concerning economic development. While the day-to-day operations of economic development corporations or First Nations businesses remain separate from political decision-makers, the two must ideally work in tandem to create the best environment for economic success, whatever that success looks like in a given nation.41 As the RCAP wrote, “There are important, indeed crucial, roles for political leadership – to create and sustain an appropriate environment, establish guidelines, and make important strategic decisions about the direction of development – but they do not lie in day-to-day decisions about economic development.”42 Another structural feature is to have the businesses operated by development corporations structured as limited partnerships or limited liability companies. As one interviewee explained, “Most of our operating enterprises are operated as limited partnerships, and each one is independent from each other, so that if one particular business should fall it doesn’t drag down the whole organization.”43 This two-tiered approach uses the corporation as a legal form to structure the economic development body itself, distancing it from the political branch while using

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limited partnerships to structure individual businesses.44 An interviewee describes the benefit of this approach in one First Nation: A development corporation is not an Indian, so the limitations that fall on Indians under the Indian Act, in terms of property and so on, don’t apply to the development corporation. So we have a relationship with a lender and we have access to capital and we’ve been able to leverage support from the First Nation and revenues from our operations and generate a nest egg for ourselves so that we do have access to investment capital when we make an investment decision moving forward. So we’re fortunate in that respect. Of course, it also makes us taxable, but that’s another reason why we went to the limited partnership structure, because the First Nation is the majority limited partner and when it comes to distributing the profits, the profits can be distributed back to the First Nation free of tax and we limit our tax exposure through that vehicle. So we have the best of both worlds in that respect. Now, individual First Nations entrepreneurs that we work with, we have developed programming to assist entrepreneurs. Yes, entrepreneurs in First Nations communities have more difficulty in accessing capital then non-First Nations entrepreneurs because of ownership restrictions that are imposed on them by the Indian Act. So we have a fund that we’ve established internally that we utilize to invest in entrepreneurs. There is a whole network of Aboriginal financial institutions that have been established, and so, with a good business plan, an individual should be able to approach an Aboriginal financial institution and get financial support.

These financial institutions play an extremely important role in financing businesses and infrastructure on First Nations.45 Many economic development corporations were established specifically to assist individuals in accessing financing from traditional lenders. Today two other important lenders are community futures organizations and Aboriginal capital corporations.46 The First Nations Fiscal Management Act (FNFMA) process provides another avenue to secure funding for some nations. The FNFMA as originally structured provided First Nations with an avenue to source financing by creating a tax base that could be used as collateral. This has since been expanded so that any steady revenue stream may be used to this end. One of our interviewees, for example, used the funding stream provided through an agreement with BC Hydro to secure financing through the FNFMA framework. This structure is not without its critics. Our interviewees, however, saw it as one tool among many that they could use to finance infrastructure and business development.

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Another legal form discussed was the co-operative model. Some First Nations have looked to co-ops to facilitate the development of a supply chain and employment chain that works as much as possible within First Nations themselves. As one interviewee put it, co-ops can “get the jobs into the communities. The joint ventures don’t do that. Other studies have also highlighted the role that co-ops can play.”47 Thus, the organizational structures play an important role in how First Nations will be able to respond to opportunities and challenges. How financing is sought, how decisions related to business are made, etc. are all impacted by these structural arrangements. While our interviewees recognized that no solution was likely to be applicable in all circumstances, they tended to favour arrangements which established arm’s-length economic development bodies that could deal with lenders in developing infrastructure and assist entrepreneurs in seeking financing for personal businesses. c) Negotiated Agreements Another important tool cited by our interviewees were negotiated agreements such as protocols with business or government, impact benefit agreements, and joint venture agreements. Self-government agreements are also included here. These types of agreements take many forms and are of various sizes and scopes. Protocol agreements, for example, include things such as agreements with fishing lodges operating in traditional territories to employ a certain number of First Nations individuals. As one interviewee explained: We started forestry operations and that includes a lot of sub-contracts, so we have protocol agreements with everyone who comes into the territory, and those protocol agreements are for jobs and services. We have a lot of contacts and protocols with the BC government, the forest and range agreement, timber agreements with them … So to recap: we’ve got a lot of protocols with government, a lot of protocols with NGOs, a lot of protocols with other service providers, small businesses doing operations that have money where we can say, ok, we’re going to piggyback off you and basically struggle by until we get our own economy built up.

These agreements, then, extend to companies operating in the territory and create a benefit for Indigenous nations in the form of employment and economic development. They are not conceived of as permanent solutions, but rather as temporary sources of employment and capacity building.

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Joint ventures are another form of this. Joint venture agreements are agreements entered into between First Nations and companies who want to work in their jurisdictions. They can be developed for various reasons, including “access to capital and resources, sharing knowledge and expertise, and building relationships for future opportunities.”48 These agreements can allow the risks and rewards of business ventures to be allocated between the parties through their contractual arrangements. Perhaps the most well-known collaborative arrangement is the Impact Benefit Agreement (IBA). These are typically negotiated where a resource development company wants to operate on Indigenous territories. The agreements typically include things such as employment and training, preferential contracts for First Nations business or joint venture partners, and so on.49 Though IBAs predate the Supreme Court’s development of the Duty to Consult, they have become an important element of the agreements reached through consultation. In the view of our interviewees, IBAs have become more beneficial to First Nations as their claims have seen more success in the courts. A more robust Aboriginal rights jurisprudence has allowed them to extract more from concessions from industry. These types of agreements also face considerable criticism. First, there are those who object to these on principle. From this perspective, it is argued that Indigenous Nations are unable to effectively block development in their jurisdictions, and IBAs represent a limited concession they are able to extract from developers. Though this is likely true in some circumstances, each circumstance differs, and many nations welcome the agreements. Another critique also focuses on the uneven playing field, arguing that it is exacerbated by the lack of a policy framework around IBAs: The absence of a policy framework makes it very difficult for First Nations to negotiate IBA arrangements that fully reflect their interests. Because they don’t know how they might be forced to use the resources, First Nations are essentially obliged to try to negotiate benefits at a level that takes into account a potential claw back. Industry argues a similar point. The industry perception is very much along the lines of the First Nations, that the communities are very poorly financed, lacking in quality infrastructure, both physical and social. When a resource developer appears in the community to discuss First Nations participation in and support for a project in their region, the First Nation perceives this as the opportunity to deal with all or as much as possible of the cumulative effects of historic underfunding and neglect. Industry tends to hold the view that governments are off-loading public sector responsibilities onto the private sector. The lack of a public policy framework on the downstream treatment of financial benefits leads

Economic Justice in Practice  101 to long and drawn out negotiations limited ultimately by the economics of the project and/or the skill of the negotiators.50

IBAs, then, are limited by the fact that they only benefit First Nations where two conditions are met: first, there clearly must be a resource to be developed.51 Second, the First Nation must have sufficient legal claim to compel a just settlement. Where they do not wish for the development to proceed, this may not be possible. As our interviewees in Treaty 8 territory explained, the view that land was ceded under the treaty has made it much more difficult for them to articulate claims over the resources in their territories. Further, the benefits created are limited to those employed through the projects and often do not provide spinoff development for the nation.52 As one interviewee explained: All these JVs [joint ventures], because they’re in oil and gas and logging, all of the jobs are not in the community, they’re in camps set up around the communities. So [the workers] don’t get to take advantage of the income tax benefit. If you want to work in your community, you either work in the administration building, or you work in the oil field. The other option is welfare.

The joint venture agreements in this context, then, do little to create wealth in the community while nonetheless providing access to resources in Indigenous territories. In other words, they are not always an effective means of ensuring that First Nations benefit from resource extraction in their territories, nor are they a certain means of creating sustainable economic development. Yet, where First Nations are in resource rich areas and are in favour of development, joint ventures and IBAs can bring considerable economic gain and job training to nations. One interviewee was from a nation which was involved in mining and had seen considerable economic development as a result. Another works with a nation that used agreements with smaller businesses to generate income. In both cases, asserted jurisdiction over the territory was central to building the relationships that the nations considered valuable. d) Self-Sufficiency A final category of responses to overcoming barriers to development roughly come under the umbrella of becoming self-sufficient. Self-sufficiency here should be understood not only in economic terms. Our interviewees made clear that economic prosperity was dependent upon other forms of self-sufficiency – cultural, linguistic, political, and so on.

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One way to foster greater economic self-sufficiency which was identified by virtually all interviewees as essential was to find a way “to stop the dollar leakage from their communities.” As an initial building block to economic development, the question is how more dollars can be kept communities rather than flowing outside. Cycling money back through a community causes what economists refer to as the “multiplier effect.”53 As several interviewees pointed out, a starting point for this is often a gas bar and store, which provide jobs in the community and keeps the profits from sales of gas and basic goods in the community. As a next step, “you have to try to figure out, is there something, a skill, or, can they start a business on reserve where they can sell the product off reserve.” The development of small businesses on First Nations can form “the backbone of the community” by not only creating employment, but keeping money in the First Nation and developing local economies.54 Some interviewees have begun to develop training programs with this in mind. As one detailed: “The other thing I looked at when I came to the band was the number of contracts that we gave to outside, so that those contracts could be better serviced inside, so I started a rigorous training program. And rather than having people from the outside, I started training staff to do most of the work on the inside, and that’s worked really well for us.” Under this program, the band money spent on governance services was kept in the community by training staff to perform tasks that had been farmed out to consultants in the past. The spending stays in community, while both individuals and the band government develop important capacity, justifying the training costs.55 Self-sufficiency was also seen by many to be something to be achieved by First Nations working together. Several interviewees emphasized the view that “First Nations are no longer working in silos” and that this provided opportunity for the development of self-sufficient nations. This is true at the political level, as well as in negotiating with industry. Joint ventures and IBAs can be more fruitful if collective negotiating weight is brought to bear. Where First Nations “go it alone,” they are often able to exert less leverage in negotiations. A legal form that can be employed to this end is the co-operative. An interviewee who works on development with a number of First Nations is taking on the idea of a First Nations owned co-operative. The idea is to construct a supply chain that relies to the greatest extent possible on First Nations’ produced goods and services. A co-operative could facilitate the movement of goods and services between First Nations, “to open up those supply chains, as well as to capture some of that leakage.” Thus, while more conventional projects such as gas bars and convention centres remain important, a co-operative structure may have the potential to

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meet demands through the co-operation of more remote communities. As the interviewee explains, “We’re trying to leverage collective buying power. We have 2,000 members total living on reserves they’re spending millions of dollars a year on consumables, so we’re doing a leakage study to identify where spending is being done and see if there’s an opportunity to create our own market.” Conclusion: Defining Economic Development Success in Indigenous Contexts and Charting Paths Forward The varied approaches to economic development outlined above illustrate the distinct circumstances faced by First Nations and the wide range of challenges they must address. They also reflect distinct approaches to what constitutes successful economic development. A question we put to all of our interviewees was, “What, in your view constitutes successful economic development?” Most expressed some variation on the theme that “there’s more than a bottom line involved.” That is, while economic development in non-Indigenous contexts is often conceived of strictly in terms of creating the greatest degree of wealth possible, in First Nations other concerns often prevail. A First Nations’ owned company, for example, may wish to employ more people than absolutely required, valuing the creation of jobs more than its own profit margins. Some First Nations have adopted the language of the “triple bottom line,” which assesses projects on the basis of social, ecological, and economic benefits. As one interviewee explained, “For, us employment is an important metric, and capacity building and training is an important metric, as of course every business needs to be profitable to be sustainable, but we also want to make sure that we have the social licence to continue to operate and that includes following, carefully, [our] traditions in terms of land stewardship.” Thus, several factors become pertinent in assessing economic development. As another interviewee put it, “It’s difficult to take monetary alone as the gauge of success.” Another said that “we might make a profit, but more than likely we’re going to break even. So when we’re looking at these opportunities, it’s really a focus on capacity development, job training, community pride, self-sufficiency, and potentially even sustaining their own well-being through employment opportunities that come as a secondary result of creating these opportunities.” These insights from interviewees showed a symmetry with community economic development models more broadly. As Gretchen Hernandez has outlined, CED frameworks typically have four areas of emphasis: place (focusing on particular local places with which peoples have a particular familiarity and connection, participation (direct engagement

104  Robert Hamilton, Ryan Beaton, and Joshua Ben David Nichols

at all project stages if possible), sustainability (the triple bottom line of environmental, social, and economic sustainability), and assets (CED begins not with an analysis of what a community is missing, but by recognizing what assets currently exist and developing strategies to use them).56 Similarly, participants in Hernandez’s study noted that “[i]t is not about filling out pockets as much as we can.”57 These perspectives were also found in the RCAP’s extensive interview process.58 RCAP identified community economic development models as reflecting these perspectives: CED [community economic development] is more than the stimulation of local businesses to create jobs. It involves a comprehensive program to improve the entire range of social and physical resources in the community: business and jobs but also education, housing, transportation, public infrastructure, and leisure. The key to this approach is the planned integration of social and economic goals. The approach is holistic and has therefore been attractive to Aboriginal people as one that is consistent with their values and world view.59

This expansive understanding of economic development was echoed by our interviewees. The only exception was an interviewee who wished to emphasize that, while economic development goals should focus on nation building and other social concerns, businesses themselves risked failure if they did not focus on their bottom line. Another goal of economic development and self-sufficiency identified by the interviewees was the development of pride in the nation and culture. As one interviewee said: One of the things that we’ve been finding with our tourism venture is that we’ve had a positive impact on our community’s sense of value and worth because they see themselves reflected in the eyes of the visitor and there’s a lot of pride in what we’ve accomplished here as a nation and the fact that there’s so much interests from the outside in the [our] culture, so we’re able to expose the outside world to the [our] culture and, in the process, strengthen that culture and strengthen the use of the language in the community. We’re training more and more professional guides to utilize the songs and the use of the language and integrate that into the experience for the visitors. So there’s been a significant and noticeable improvement in the way the community views itself and values itself as a result of those interactions.

As another put it, “For First Nations, it’s the pride in the ownership, it’s training people to not just be participants but to be leaders within the industry and not to marginalize people.” The RCAP also recognized the importance of pride and self-worth, both as a cause and result of

Economic Justice in Practice  105

development opportunities: “economic development is the product of the interaction of many factors – health, education, self-worth, functioning communities, stable environments, and so on.”60 The role of leadership was identified by several individuals as providing the vision to achieve whatever the self-sufficiency and development goals the community has, “the elected and hereditary chiefs are the ones who understand the needs of the nation and when they look at the resources on the land they can see what the opportunities are that should be pursued.” Effective leadership, then, is that which understands the needs and values of the nation and can effectively chart a path to autonomous self-reliance and self-determination on that basis. Over the past several decades, the foundations of Crown sovereignty in Canada have been questioned not only by Indigenous and non-Indigenous political thinkers, but by Canadian courts themselves, including the Supreme Court of Canada. However, large-scale political efforts at constitutional transformation have stalled. Despite, and perhaps in part spurred by, the failure of these attempts at de jure constitutional transformation, First Nations have continued to increase their capacity for, and exercise of, self-government “on the ground” while also finding some success in gaining recognition of Aboriginal and treaty rights through the courts and incremental victories along avenues of legislation and negotiation. The increasing exercise of self-government by First Nations faces many hurdles, perhaps most significant among them the dramatic erosion of their land base – a legacy of the long expansion and eventual dominance of settler society – and the continuing effects of oppressive and paternalistic treatment by the Canadian state, particularly through the Indian Act. As discussed in the final section above, however, First Nations are finding innovative ways to overcome these hurdles, or at least to mitigate the difficulties they present, all the while developing a distinctive (and varied) Indigenous approach to economic development, often emphasizing importance to the community reaching beyond the corporate bottom line of profitability, to include a focus on the well-being of workers and families in the community and on environmental sustainability. NOTES 1 Stephen Tierney’s work in this area is excellent and, to our mind, shows much promise for application to the struggles of Indigenous peoples. See Stephen Tierney, Constitutional Law and National Pluralism (Oxford: Oxford University Press, 2004).

106  Robert Hamilton, Ryan Beaton, and Joshua Ben David Nichols 2 For an excellent account of the transition to this model of imperial governance in the nineteenth century, see Karuna Matena, Alibis of Empire: Henry Maine and the End of Liberal Imperialism (Princeton, NJ: Princeton University Press, 2010). While this text is invaluable, it does not address how this policy shift affected the settler colonies. For a response that focuses on the importance of the settler colonies, see Duncan Bell, Reordering the World: Essays on Liberalism and Empire (Princeton, NJ: Princeton University Press, 2016). 3 See Peter H. Russell, Canada’s Odyssey: A Country of Incomplete Conquests ­(Toronto: University of Toronto Press, 2017) at 73–210. 4 St. Catharine’s Milling & Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.) at 54–8 (hereinafter St. Catharine’s Milling). 5 For a comprehensive overview of extinguishment, see Kent McNeil, “Extinguishment of Aboriginal Title in Canada: Treaties, Legislation, and Judicial Discretion” (2002) 33:2 Ottawa Law Review 301. 6 Calder et al. v. Attorney-General of British Columbia, [1973] SCR 313 at 328 (hereinafter Calder). 7 This is illustrated, for example, in the assumption of Crown sovereignty that persuades the Court in Sparrow to interpret section 35 via a section 1 style Oakes analysis despite the Court explicitly acknowledging that section 1 does not apply to section 35: R. v. Sparrow, [1990] 1 SCR 1075 at 1108–9. For Borrows’s use of the term “sovereignty’s alchemy,” see John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw v. British Columbia” (1999) 37 Osgoode Hall Law Journal 537. 8 This last sub-aim is frequently mischaracterized as a “veto.” This serves to distort the very nature of the issue at hand because it trades on a set of common assumptions that do not apply in this particular case. Generally speaking the notion of one or more groups within a given state demanding a veto is frowned upon as it seems that these groups are demanding to exercise a kind of authority that compromises balance between equality and liberty that maintains the structural integrity of the body politic. Simply put, a member or set of members of the body politic are demanding to be more equal than the others. The basic presumptions here are that the model of the state is a basic unitary nation-state and that it is already in place (so everyone there has agreed – or would, given the opportunity, rationally accept – to become part of the body politic). This is what gives the notion of demanding a “veto” the affective sting of indignation (the associated phrases being something along the lines of “who do they think they are?”). Even a cursory examination of the history in this case shows that these basic presumptions do not apply. Indigenous peoples did consent to create forms of socio-political association through the formation of treaty relationships, but these were not viewed by them as cede and surrender documents that would fuse them and their lands into a unitary body-politic. Therefore, the

Economic Justice in Practice  107 demand for an ability to have a determining say to what occurs on their lands is not the demand for a veto, but rather it is a demand for the jurisdiction that was unilaterally taken from them by the settler state. It is a demand for the settler state to acknowledge that its sovereignty was never absolute. This is not a contest for who has a “veto” it is a conflict over the nature of the state in Canada and its division of powers. 9 For a critique of asserted European sovereignty on the basis of the de facto / de jure distinction, see Kent McNeil, “Sovereignty and Indigenous Peoples in North America” (2016) 22 UC Davis Journal of International Law and Politics 81. 10 Tsilhqot’in Nation v. British Columbia, [2014] SCC 44; Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, [2014] 2 SCR 447; Clyde River (Hamlet) v. Petroleum GeoServices Inc., 2017 SCC 40; Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41. 11 The Court used the term “de facto” and/or “assertion” to describe the nature of Crown sovereignty in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511 at para. 32; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 SCR 550 at para. 42; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para. 66; and Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257 at paras. 14, 22, 25, 29, 58, 69, 81, and 83. 12 For a detailed analysis of this, see John Borrows, “The Durability of Terra Nullius: Tsilhqot’in Nation v British Columbia” (2015) 48:3 UBC Law Review 701. 13 For another way to frame the de facto and de jure distinction in the context of Indigenous peoples, see McNeil, supra note 9. McNeil frames de jure as a choice of law question and de facto as an empirical question. This is somewhat problematic, as it can only be an “empirical” question in relation to a given definition of sovereignty (he goes with effective control), but it could be of some practical use insofar as it frames the de jure question as a site of contestation between legal systems/practices. This is a helpful step out of the notion that the only way to convert the Crown’s de facto sovereignty to de jure is via the Court’s existing section 35(1) framework, which is a process they have termed reconciliation. This process is predicated on a narrow interpretation of section 91(24), which is read as granting the Parliament unilateral sovereignty over Indians and their lands. As such, in this process the Court uses section 91(24) to effectively fit Indigenous peoples into the existing unitary constitutional order. 14 See Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples, Department of Justice Canada (2018), http://www.justice.gc.ca /eng/csj-sjc/principles-principes.html. 15 Stephen Cornell and Joseph P. Kalt, Sovereignty and Nation-Building: The Development Challenge in Indian Country Today (Cambridge, MA: Harvard

108  Robert Hamilton, Ryan Beaton, and Joshua Ben David Nichols Project on American Indian Economic Development, 1998) at 2. [emphasis added] 16 Ibid. at 6–8. Interestingly, these findings, unlike most in the Canadian context, do not place emphasis on control of land and resources – it is autonomy which is central, and other factors (presence of and access to resources, proximity to urban centres, trained labour force, etc.) are secondary. 17 Samuel Rose, “Comparative Models of American Indian Economic Development: Capitalist versus Cooperative in the United States and Canada” (2014) 34:4 Critique of Anthropology 377 at 378–9. 18 Further, these critiques are often based on an essentialized reading of Indigenous identity. Christina Dowling, for example, writes that “traditional First Nations societies (particularly hunter-gatherers) are essentially opposed to the very conditions of industrial development: the accumulation of wealth, growth and Westernized ‘progress’” and that the “acceptability of these ideals, intrinsic to westernized economic success does not dovetail with First Nations ways of life.” Christina Dowling, “The Applied Theory of First Nations Economic Development: A Critique” (2005) 4:2 The Journal of Aboriginal Economic Development 120 at 125. Such statements ignore Indigenous diversity while assessing the response of Indigenous peoples to modern market economies with reference to their pre-contact history. This mirrors the Supreme Court’s problematic tying of Aboriginal rights to pre-contact activities inherent to their “distinctive culture,” an approach widely criticized as freezing Aboriginal rights in the past: see Bradford W. Morse, “Permafrost Rights: Aboriginal Self-government and the Supreme Court in R. v. Pamajewon” (1997) 42:4 McGill Law Journal 1011. In both instances, Indigenous people are denied the opportunity to evolve and adapt in response to the changes around them, tied instead to a contemporary commentator’s view of the essential characteristics of their culture 400 years ago. While it is undoubtedly true that the values of many Indigenous peoples are at odds with those underpinning capitalist development, in particular the wanton exploitation and destruction of natural resources, this is a matter to be addressed by Indigenous peoples themselves and a matter on which a homogeneous response is unlikely. 19 Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Back, Looking Forward (Ottawa: The Commission, 1996) at 235 (hereinafter RCAP, vol. 1). 20 George R, Proclamation, 7 October 1763 (3 Geo III), reprinted in RSC 1985, App II, No. 1. 21 RCAP, vol. 1, supra note 19 at 241. 22 Ibid., quoting R. v. Sioui, [1990] 1 SCR 1025 at 1053.

Economic Justice in Practice  109 23 This echoes the findings of the Royal Commission on Aboriginal Peoples, see vol. 2, Restructuring the Relationship (Ottawa: The Commission, 1996) at 944–5, 972 (hereinafter RCAP, vol. 2). 24 There is ample published work to this effect. See, for example, Harold Johnson, Two Families: Treaties and Government (Saskatoon: Purich Publishing, 2007). 25 For a comprehensive overview of the history of colonial and Indigenous claims to land in BC, and the historical dispossession of Indigenous peoples, see Cole Harris, Making Native Space: Colonialism, Resistance, and Reserves in British Columbia (Vancouver: UBC Press, 2002). 26 See Darlene Johnston, The Taking of Indian Lands in Canada: Consent or ­Coercion? (Saskatoon: Native Law Centre, University of Saskatchewan, 1989) at 75–88; RCAP, vol. 1, supra note 19 at 259–62. 27 RCAP, vol. 1, supra note 19 at 252. 28 For an account of the sweeping power of local Indian agents in the mid-twentieth century and challenges facing those agents who sought to reform the system, see Stuart Killen, “Memories of an Ex-Indian Agent” in Marie Battiste, ed., Living Treaties: Narrating Mi’kmaw Treaty Relations (Sydney: Cape Breton University Press, 2016) at 83. 29 RCAP, vol. 1, supra note 19 at 253. 30 R. v. Marshall, [1999] 3 SCR 456 (hereinafter Marshall No. 1); R. v. Marshall, [1999] 3 SCR 533. 31 See, for example, R. v. Reynolds, 2017 NBCA 36 where the New Brunswick Court of Appeal held the provincial government in abuse of process for effectively gutting the substance of the commercial trading right recognized in Marshall No. 1, supra note 30, by prohibiting prosecuting an Indigenous rights holder as an accessory to offences committed by a non-Indigenous person who was charged with violating provincial law through the purchase of moose meat. In this the NBCA held that the Crown was “attempting to do indirectly what it could not do directly” (at para. 86) and that “[t]he decision to charge Mr. Reynolds, in view of the admitted treaty right, and to pursue the prosecution of the charges based on weak and then changing theories of his liability is, at the very least, inconsistent with the principles respecting the honour of the Crown” (at para. 107). Thus, eighteen years after the commercial treaty right in New Brunswick was recognized, the province continued to attempt to undermine the exercise of that right. 32 Canada, Truth and Reconciliation Commission, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: The Commission, 2015). 33 RCAP, vol. 2, supra note 23 at 978. 34 Gordon Shanks, Economic Development in First Nations: An Overview of Current Issues (Ottawa: Public Policy Forum, 2005) at 18.

110  Robert Hamilton, Ryan Beaton, and Joshua Ben David Nichols 35 Such an approach was commented on positively in chapter 9, “Economic Development of First Nations Communities: Institutional Arrangements” of the Report of the Auditor General of Canada (Ottawa: Office of the Auditor General, 2003) at 14 (hereinafter Report of the Auditor General), www.oag-bvg .gc.ca. This has also been identified as central to building sustainable local economies in American studies. See Robert J. Miller, Reservation Capitalism: Economic Development in Indian Country (Lincoln: University of Nebraska Press, 2013) at 139–40. 36 This is echoed in other studies, see for example, Shanks, supra note 34 at 12. 37 RCAP, vol. 2, supra note 23 at 946. 38 The opinions of the interviewees on this point, therefore, reflect the empirical findings of studies in the American context; see Miller, supra note 35 at 141. 39 For an analysis of the role leaders play in development processes, see Jamie Baxter, Inalienable Properties: The Political Economy of Indigenous Land Reform (Vancouver: UBC Press, 2020) at 46–108. 40 This is also a common theme in other studies and secondary literature. See Report of the Auditor General of Canada, supra note 35 at 11–12. 41 This again reflects empirical studies, see Miller, supra note 35 at 139, 141. As Miller writes, “[T]he Harvard Project agrees that once tribal governments make the basic strategic business decisions, they need to get out of the daily operation of businesses and allow experts and management who are not controlled by tribal politics to manage these concerns.” 42 RCAP, vol. 2, supra note 23 at 1025. 43 This structure has wide support among those working in Indigenous economic development. Accountant Jim Bennett, for example, writes: “Any Indigenous group serious about setting up a vehicle to create and expand economic opportunities being presented to them will want to seriously consider an Economic Development Corporation structure. It allows for the formation of wholly (or partially) owned Limited Partnerships or Limited Liability Partnerships which are, in turn, owned by the “parent company,” namely the EDC as a holding company. The ability to put all business activity under “one roof” also allows for cost savings on administrative and other costs, talent attraction, capacity building and, ultimately, Nation building.” Jim Bennett, “Indigenous Economic Development Corporations: The ABC’s” (27 June 2016) (blog), Indigenous Corporate Training, https:// www.ictinc.ca/blog/Indigenous-economic-development-corporations -the-abcs. 44 For an overview of the various legal forms that may be employed, see Judith Sayers, “Economic Development Toolkit for First Nations Economic Development Officers, Chiefs and Councils and Community Members – Basic

Economic Justice in Practice  111 Information and Guide” (10 May 2011), Prepared for the Industry Council for Aboriginal Business, Indian and Northern Affairs Canada (BC Region), https://nnigovernance.arizona.edu/economic-development-toolkit-first -nations-economic-development-officers-chiefs-and-councils-and. 45 Infrastructure has been identified as one of the keys to creating development opportunities: Miller, supra note 35 at 144. 46 For information on Aboriginal Financial Institutions, see the National ­Aboriginal Capital Corporations Association at http://nacca.ca/. 47 Gretchen Hernandez, “Indigenous Perspectives on Community Economic Development: A North-South Conversation” (2013) 4:1 Canadian Journal of Nonprofit and Social Economy Research 6 at 14. 48 British Columbia Assembly of First Nations, Indigenous Leaders’ Business Partnership Roadmap Book Two (Vancouver: Corfield and Associates, 2019) at 22, https://www.bcafn.ca/sites/default/files/docs/news/IN-THE-BLACK -Book-2-LR.pdf. 49 IBAs may also include “recognition of Aboriginal and treaty rights, compensation for negative impacts, protection of culture and cultural artefacts, employment and training, access to business opportunities, environmental aspects of project implementation, other financial considerations (sometimes including equity participation and means thereof), implementation and monitoring of the agreement and dispute resolution mechanisms to settle any disputes related to undertakings in the IBA. Industry signatories are also anxious to achieve their principal objective and therefore want to include undertakings from the First Nations that, by virtue of the IBA having been negotiated and agreed to, the First Nations will support the project publicly and not raise objections in the regulatory process.” Gordon Shanks, Sharing in the Benefits of Resource Developments: A Study of First Nations-Industry Impact Benefits Agreements (Ottawa: Public Policy Forum, 2006) at 9–10. 50 Ibid. at 11. 51 Report of the Standing Committee on Aboriginal Affairs and Northern Development, Study of Land Management and Sustainable Economic Development on First Nations Reserve Lands, March 2014, 41st Parliament, Second Session. 52 Other studies have found similar results in regions covered by “land cession” treaties, see Leanne Simpson, Sandra Storm, and Don Sullivan, Closing the Economic Gap in Northern Manitoba: Sustained Economic Development for Manitoba’s First Nation Communities (Ottawa: Canadian Centre for Policy Alternatives, 2005) at 12. 53 Miller, supra note 35 at 135. Some have argued that the multiplier effect can also been seen in terms of entrepreneurial activity itself; see Louis Galambros and Franco Amatori, “The Entrepreneurial Multiplier Effect” (2016) 17:4 Enterprise and Society 763.

112  Robert Hamilton, Ryan Beaton, and Joshua Ben David Nichols 54 This leakage also must be considered in terms of the flow of wealth created by resources development on Indigenous territories. That is, it is not only a matter of keeping spending within the local economy but also of ensuring that more of the wealth generated on Indigenous territories flows to First Nations; see Simpson, Storm, and Sullivan, supra note 52 at 11. 55 This aligns with the suggestion of the National Aboriginal Economic Development Board that recommends increasing “human capacity on reserve” as a means of overcoming barriers to development; see Addressing the Barriers to Economic Development On Reserve (Gatineau: National Aboriginal Economic Development Board, 2013) at 24. 56 Hernandez, supra note 47 at 8–9. 57 Ibid. at 10–11. 58 RCAP, vol. 2, supra note 23 at 948. 59 Ibid. at 1028. 60 Ibid. at 946–7.

5 Of Spectrums and Foundations: An Investigation into the Limitations of Aboriginal Rights joshua ben david nichols

Introduction On 2 July 2013, the British Columbia Court of Appeal released its second decision in the Ahousaht case.1 The court had been asked to reconsider its earlier decision in accordance with the Supreme Court of Canada’s decision in Lax Kw’alaams.2 The issue before the court was, once again, whether or not the trial judge (Madam Justice Garson) had erred in her finding that the plaintiffs had established “aboriginal rights to fish for any species of fish within the environs of their territories and to sell that fish.”3 The result was no different than its previous decision. Once again, Justices Hall and Neilson affirmed the respondents’ (collectively referred to as the Nuu-chah-nulth Nations) right to “fish and sell fish” (with the exception of geoduck) and Justice Chiasson dissented on the characterization of the right arguing that it should be a restricted right to sell fish “for the purpose of attaining the modern equivalent of sustenance, a moderate livelihood, being the basics of food, clothing and housing, supplemented by a few amenities.”4 On 30 January 2014, the Supreme Court of Canada denied the application for leave to appeal the decision.5 Accordingly, Ahousaht now stands as the only case in which the courts have found a multispecies right to fish and sell fish on the commercial market. While this could well be interpreted as a significant advancement for both the law pertaining to Aboriginal rights and a victory for the Nuuchah-nulth Nations, it has been stalled on the question of implementation. The main issue between the parties has been the interpretation of the right itself. At trial, Justice Garson had stated that, … the most appropriate characterization of the modern right is simply the right to fish and to sell fish. I consider the characterization I have chosen to

116  Joshua Ben David Nichols fall within the claim as pleaded and to accord with the evidence. In the circumstances of this case, there is an arbitrariness in endeavoring to impose limits on the scale of sale at this stage of the analysis by quantifying a certain level of sale. Beyond stating that the right does not extend to a modern industrial fishery or to unrestricted rights of commercial sale, I decline to do so. Limitations on the scope of the right are most appropriately addressed at the infringement and justification stages of the analysis, as part of the reconciliation process.6

The intention here was to facilitate negotiations between the parties. In her view, with a judicial decision in place negotiations “must now proceed on a different footing than has heretofore taken place, one that starts with recognition of the plaintiffs’ constitutional rights to fish and to sell that fish.”7 The flaw in this well-meaning strategy was evident from the very beginning. First, the definition of the right lacked specification (Justice Chiassond rightly picks up on this in his dissents) and second, the Supreme Court’s current interpretive framework for s. 35 holds that Aboriginal rights are Charter-like and so subject to justifiable infringements. These flaws are related. Ideally a broadly defined right like the “right to fish and sell fish” would encourage the parties to negotiate the specific details amongst themselves and thus spare the courts the task of determining the precise fit and finish of reconciliation, so to speak. This is an approach the Supreme Court has repeatedly urged and so it is entirely understandable why Justice Garson would attempt it.8 This led her to separate the trial into two stages, first rights and then justification. Now if the right that she had found was something that would fit into previously established fishing rights (e.g., a right to fish for food, social and ceremonial purposes, the right to a “moderate livelihood,” or even a commercial right to a specific species) then I have no doubt the strategy would have succeeded. But, the “right to fish and sell fish” is not like previously established rights, it could be interpreted as being a commercial right. This possibility left the parties unable to negotiate a mutually acceptable form of accommodation and so returned to the Supreme Court of British Columbia to determine whether the infringement was justified.9 This deadlock has changed the colour and character of Justice Garson’s decision to separate the trial into two parts: what began as a well-intentioned attempt to facilitate reconciliation has resulted in a process so lengthy and uncertain that it is now strikingly reminiscent of Jarndyce v. Jarndyce.10 On 19 April 2018 the Supreme Court delivered its decision for this portion of the trial. In the intervening period, Justice Garson was promoted to the British Columbia Court of Appeals (BCCA) and thus Justice Humphries took her place as the trial judge.11 The result is another

The Limitations of Aboriginal Rights  117

exhaustive decision (almost double the length of Justice Garson’s already considerable decision) with even less certainty.12 The decision adds considerable confusion as Justice Humphries elected to recharacterize the right from the broad “right to fish and to sell fish” to the (unbelievably) specific right to “a small-scale, artisanal, local, multi-species fishery, to be conducted in a nine-mile strip from shore, using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation.”13 On its face the very notion of such a narrowly specific right is laughable. Adjectives like “small,” “limited,” “restricted,” and “low-cost” do not have common-sense definitions and so they will take on a new character, they will become terms of art. How could one even begin to render this jumble of words into a clear and functional policy framework? And what of the doctrine of Aboriginal rights? Justice Garson’s definition survived appeals all the way to the Supreme Court only to be recharacterized as being somehow identical with the preferred means of exercising the right? This kind of judicial bait and switch is by no means novel. It is after all, more than somewhat reminiscent of the recharacterization of a right to self-government to “the right to participate in, and to regulate, high stakes gambling activities on the reservation” in R. v. Pamajewon.14 It appears that we have found ourselves back where we started: a long, confusing, costly, and uncertain process of litigation has resulted in a frozen right. All that is certain now is that this suit will indeed drone on in the appellate courts. My own interest in this case concerns the relationship between this decision and the Supreme Court’s current understanding of Aboriginal rights. I argue that Ahousaht presents a hard case for the doctrine of Aboriginal rights that the Court developed in the Van der Peet trilogy.15 It does so by posing the following question: Are commercial Aboriginal rights possible? The simple answer to this question is that they are theoretically possible. That is, the Van der Peet test does not exclude the idea of such rights. It simply maintains that in order to be recognized as an Aboriginal right an activity must be “an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right” that existed “prior to contact between aboriginal and European societies.”16 At first glance this seems to make the existence of a commercial right a question of fact, but this is not entirely accurate. If an Aboriginal claimant can manage to prove the existence of such a right, then the standards for determining what is a justifiable infringement change. This change is clearly detailed in Gladstone and has been subsequently confirmed as a part of test for Aboriginal rights in Lax Kw’alaams. Conceptually the issue can be roughly mapped out as follows. The framework in Van der Peet (in addition being overly restrictive on both

118  Joshua Ben David Nichols

its specified timeframe and cultural analysis) has a kind of invisible ceiling built into it. It can accommodate rights that are “internally limited” (e.g., “food, social and ceremonial purposes” or the vaguely determined standard of “moderate livelihood”) because these can fit into the current theory of Crown sovereignty and so can be accommodated within existing unilateral regulatory frameworks. But, despite appearances to the contrary, it has thus far been unable to accommodate actual commercial rights. Some may point to Gladstone as a counter example to this given the fact that the Court recognized and affirmed the Heiltsuk Nation’s right to “to sell herring spawn on kelp commercially,” but we must remember that Chief Justice Lamer placed this within the existing regulatory framework and considerably expanded the applicable standard of the justification for infringement to one that balances the interests of the Aboriginal group against the interests of the “broader community as a whole.”17 The problem here is that while commercial Aboriginal rights (i.e., rights that extend beyond the “internal” limits of “food, social and ceremonial purposes” and the “moderate livelihood” standard) are theoretically possible within the current framework, the Gladstone standard for justifying infringement will amount to a procedural barrier that will make such rights impossible. I believe that Ahousaht presents a hard case for the current doctrine of Aboriginal rights because it puts this question to the test. This presents us with a curious problem: it seems that even in a case where an Aboriginal claimant can overcome the immense evidentiary burden necessary to satisfy the current test and prove an Aboriginal right to fish on a commercial scale, this right will then simply be limited to the “moderate livelihood” standard at the justification stage. Russell L. Barsh and James Y. Henderson presciently summarized this problem almost twenty years ago, as they put it: If all the hurdles announced by Sparrow, Van der Peet and Gladstone are assembled, they form a formidable and intimidating barrier: the Aboriginal practice at issue must be shown to be preexisting and central; it must be shown never to have been extinguished by the Crown prior to 1982; it must have been infringed by government action after 1982; the government action must be shown to have lacked adequate justification; and it must be shown to go beyond the reasonable discretion enjoyed by the Crown as a “fiduciary” to determine whether the Aboriginal community concerned has been given an adequate “priority” in the enjoyment of the resources it has traditionally utilized. All of this translates into a heavier evidentiary burden at trial, more expense, and greater risk of an adverse ruling, amounting to a present-day extinguishment of the rights asserted.18

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If this is still the case, then what is the purpose of Aboriginal rights? If the most that any claimant can hope to obtain is the recognition of a somewhat higher level of priority within the existing unilateral Crown resource management structure, then what is the point? It seems to me that if this is indeed the case, then Aboriginal rights has amounted to little more than a legal doctrine “full of sound and fury,” but ultimately “signifying nothing.”19 The Court’s reasoning in Sappier and Gray provides us with an example that illustrates my concern. In this case, Justice Bastarache finds that the respondents have “an aboriginal right to harvest wood for domestic uses on Crown lands,” but this right is limited to specific-sites and specific groups.20 In addition, he stipulates that the right has “no commercial dimension,” which means that “the harvested wood cannot be sold, traded, or bartered to produce assets or raise money.”21 The problem here is where exactly this strict limitation comes from? The restrictions are so stringent it is difficult to even imagine what such a right means; does it mean that whatever this wood is used to make can also never be sold, bartered, or traded? This sounds like a riddle or the kind of curious restrictions one only finds on magical items in fairy tales, but, sadly, this example is by no means an exception from the norm. The last twenty years of Aboriginal rights litigation has failed to produce anything more than a haphazard assortment of site and/or species specific rights that have little to no direct practical value for economic development.22 Thus far, it has not resulted in a single meaningful recognition of the rights of Aboriginal people to govern their traditional territories and have a say in the management of resources. Rather, it allows the existing Crown resource management structure to continue with the take-it-or-leave it approach to licensing. When those rights are infringed, say via an unfair distribution of licences, then defending them requires a complicated and costly process of judicial review. The outcome of which is far from certain given that the standard for the justification for infringement is so impossibly vague that it can vary on a case-by-case basis. Given the dire socio-economic conditions faced by most Aboriginal communities in Canada, this is a situation that requires immediate attention. If reconciliation is to mean anything more than a judicial procedure for justifying infringement, then Aboriginal rights need to be redefined. This brings us to what I see as the actual question that the seeming impossibility of commercial rights raises; namely, what does this glass ceiling tell us about the Court’s current definition of Aboriginal rights? In my view, it is the product of the hidden foundational assumptions that ground the existing definition. We can see this in the way the Court has explained the relationship between Aboriginal rights and title. As Chief

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Justice Lamer stated in Delgamuukw, “the aboriginal rights which are recognized and affirmed by s. 35(1) fall along a spectrum with respect to their degree of connection with the land.”23 This presents us with a picture in which Aboriginal rights are based on lesser connections to land and so, seemingly, are of lesser importance. After all, Chief Justice McLaughlin built on this in Hadia Nation by affirming a “spectrum of consultation,” which holds that the Crown’s duty to consult and accommodate the asserted Aboriginal interest “is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.”24 The concept of a spectrum is used here to, as she puts it, “indicate what the honour of the Crown may require in particular circumstances.”25 But, what about cases where the evidentiary record can substantiate a right that is commercial in nature? If such a right were established, it would be absurd to maintain that it would require a lower level of consultation and accommodation than title.26 It simply could not fit into the spectrum model at all. Rather, it would put the very idea that Aboriginal rights and title can be organized on the basis of “degree of connection to land” into question. The possibility of this presents a fundamental challenge to the Court’s understanding of the relationship between Aboriginal rights and title, to the nature of the duty to consult and accommodate, and to the very meaning of reconciliation.27 This brings us to the purpose of this chapter. My aim here is to ask a simple question, namely, what is the value of Aboriginal rights under the current definition? The purpose of the question is to draw our attention to the seriousness of the problem that the commercial Aboriginal rights pose to the existing judicial framework (which, I will refer to as the “spectrum model” or “current definition”). The Supreme Court has consistently held that these rights could exist, but so far this has only resulted in the vague “right to sell” from the trial level of Ahousaht.28 My concern is that the elevated standard for the justification for infringement from Gladstone could be used to unilaterally impose the “moderate livelihood” standard as a cap on all Aboriginal rights. This has two very negative consequences: first, by only granting rights that have an “internal” limit the courts effectively ensure that these rights can be accommodated within existing Crown unilateral resource management systems. This prevents Aboriginal peoples from having a direct and meaningful ability to co-manage resources on their traditional territories with both provincial and federal agencies (which is, in my opinion, what commercial rights would require in order to be effective).29 Second, the imposition of an “internal” limit as a unilateral cap on all Aboriginal rights severely restricts the potential for meaningful economic development and it

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does so on something that looks more like political expediency than legal reasoning.30 If this is as far as the courts are willing to go – no matter what evidence they have before them – then the very value of the doctrine of Aboriginal rights is, to my mind, seriously in question. I will investigate the limitations of the current framework by posing two related questions: 1 Are commercial Aboriginal rights possible within the spectrum model? If not, what does this tell us about the spectrum model? 2 Can we use the idea of commercial Aboriginal rights to question the assumptions that ground the current definition and thereby reimagine it? I will answer these two questions in the following sections. First, I will detail how the courts have dealt with the question of commercial rights thus far. This will require a return to the debates between Justice L’Heureux-Dubé and Justice MacLachlin (as she was then) and Chief Justice Lamer in Van der Peet, as well as an analysis of the legal basis and function of the “public interest” standard in Gladstone. I will then explore how Aboriginal rights and title could be reimagined within the existing constitutional framework and show how current Aboriginal self-governance practices are actively stepping out of the unilateral constraints of the spectrum model. Commercial Rights and the Limits of the Spectrum Model The question of commercial rights was, as we have already noted, first raised in the Van der Peet trilogy, but its position in both the trilogy and the case law that follows from it is difficult to clearly map out. By this I mean that its position seems to be, at one and the same time, possible and impossible. In Van der Peet the majority of the Court held that to be recognized as an Aboriginal right an activity must be “an element of a practice, custom, or tradition integral to the distinctive culture of the Aboriginal group claiming the right” that existed “prior to contact between aboriginal and European societies.”31 This effectively makes the existence of a commercial right a question of fact. As Chief Justice Lamer put it in N.T.C. Smokehouse, The claim to an aboriginal right to exchange fish commercially places a more onerous burden on the appellant than a claim to an aboriginal right to exchange fish for money or other goods: to support the latter claim the appellant needs only to show that exchange of fish for money or other goods was integral to the distinctive cultures of the Sheshaht and Opetchesaht, while to support the former claim the appellant needs to demonstrate that

122  Joshua Ben David Nichols the exchange of fish for money or other goods, on a scale best characterized as commercial, was an integral part of the distinctive cultures of the Sheshaht and Opetchesaht peoples.32

If a claimant can overcome this “onerous burden” and establish an Aboriginal right that has no “internal limitations,” then the standards for determining what is a justifiable infringement change. This additional qualification is clearly detailed in Gladstone and is made up of two components. First, the commercial right is limited by being situated within a unilateral regulatory framework that is subject to judicial review. As Chief Justice Lamer states, Where the aboriginal right is one that has no internal limitation then the doctrine of priority does not require that, after conservation goals have been met, the government allocate the fishery so that those holding an aboriginal right to exploit that fishery on a commercial basis are given an exclusive right to do so. Instead, the doctrine of priority requires that the government demonstrate that, in allocating the resource, it has taken account of the existence of aboriginal rights and allocated the resource in a manner respectful of the fact that those rights have priority over the exploitation of the fishery by other users.33

Second, the right is subject to a broader standard of justification. Aboriginal rights are recognized and affirmed by s. 35(1) in order to reconcile the existence of distinctive aboriginal societies prior to the arrival of Europeans in North America with the assertion of Crown sovereignty over that territory; they are the means by which the critical and integral aspects of those societies are maintained. Because, however, distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are a part of that community), some limitation of those rights will be justifiable. Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation.34

This makes it clear that commercial rights are technically possible, but even when they are factually established they are subject to a standard

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that provides no guidance to the judiciary and so no certainty to Aboriginal claimants. The commercial right is still situated in a unilateral regulatory framework that only constrains the Crown to take the right into account in a “respectful” manner and when this vague standard is clearly infringed the infringement can be justified by reference to the interests of the “broader community.” This means that at both stages the commercial right is subject to limitation via judicial discretion. But, how can this possibly make sense? Even if we bracket the question of the constitutional legitimacy of all of this (this aspect is taken up later on), it is difficult to see how this provides meaningful guidance to judges. After all, the test set out by the majority in Van der Peet requires that judges exercise an extraordinary degree of discretion at almost every stage from characterizing the right, to determining if the practice was “integral to the distinctive pre-contact Aboriginal society,” and then determining the continuity between the “integral” pre-contact practice and the modern right. This alone would be a list of tasks more suitable for Hercules than a judge, but it does not stop there. After that has been done, the judge must then determine what a “respectful” allocation is within the relevant regulatory scheme and, if that level is infringed, what could possibly limit the interests of the “broader community as a whole.” This places the judiciary in a position where it is unclear what part of all of this is actually based in law and what is simply a product of their discretion. It is no wonder that Justice Garson characterized the right in such a vague manner, and it is similarly no wonder that Justice Chiasson viewed this outcome as a legal error in both of his dissents.35 No matter how exacting a judge is in applying the law, the outcome will be uncertain, but this uncertainty is not due to the facts of the case. Rather, it is a product of an overbroad ambit of discretion within the exiting test. John Selden famously captured the problem with this undetermined degree of judicial discretion in his criticism of the English Court of Chancery in the seventeenth century. As he put it, Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ’Tis all one as if they should make the standard for the measure we call a foot, a Chancellor’s foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot: ’tis the same thing in a Chancellor’s conscience.36

The point being that for law to be recognized as law it must be subject to some reasonable degree of measure. It must provide some ascertainable

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degree of certainty to the parties. If it cannot do so then it becomes an “uncertain measure” that is little better in the end than simply rolling the dice. Justice MacLachlin’s Empirical-Historical Approach This problem of indeterminacy brings us directly to Justice MacLachlin’s dissent in Van der Peet. She maintained that the very possibility of commercial rights was indicative of a serious problem with the reasoning of the majority. In her words, Whether something is integral or not is an all or nothing test. Once it is concluded that a practice is integral to the people’s culture, the right to pursue it obtains unlimited protection, subject only to the Crown’s right to impose limits on the ground of justification. In this appeal, the Chief Justice’s exclusion of “commercial fishing” from the right asserted masks the lack of internal limits in the integral test. But the logic of the test remains ineluctable, for all that: assuming that another people in another case establishes that commercial fishing was integral to its ancestral culture, that people will, on the integral test, logically have an absolute priority over non-aboriginal and other less fortunate aboriginal fishers, subject only to justification. All others, including other native fishers unable to establish commercial fishing as integral to their particular cultures, may have no right to fish at all.37

According to her view, the very possibility of commercial rights points to a problem with the “integral-incidental” test itself. It is, as she maintains, overly broad, indeterminate, and too categorical.38 These problems result in a test that imposes no internal limits and so one needs to compensate for this problem by introducing “a broad justification test which would go beyond limiting the use of the right in ways essential to its exercise as envisioned in Sparrow.”39 She views the justification test in Gladstone as a kind of safety valve or check on the problem of indeterminacy, but she maintains (rightly to my mind) this standard of justification is not supported by precedent, is indeterminate, and is “ultimately more political than legal.”40 Her solution to the problems introduced by the “integral-incidental” test was to adopt what she refers to as the “historically based test.” She outlines this approach as follows, Rather than attempting to describe a priori what an aboriginal right is, we should look to history to see what sort of practices have been identified as aboriginal rights in the past. From this we may draw inferences as to the sort

The Limitations of Aboriginal Rights  125 of things which may qualify as aboriginal rights under s. 35(1). Confronted by a particular claim, we should ask, “Is this like the sort of thing which the law has recognized in the past?” This is the time‑honoured methodology of the common law. Faced with a new legal problem, the court looks to the past to see how the law has dealt with similar situations in the past. The court evaluates the new situation by reference to what has been held in the past and decides how it should be characterized. In this way, legal principles evolve on an incremental, pragmatic basis.41

While this “incremental and pragmatic” approach does indeed fit within the general modus operandi of the common law, it is difficult to see how this alone could serve to provide the certainty that the “IntegralIncidental” test lacks. After all, on its own it does not serve to cap all Aboriginal rights with the internal limit of “moderate livelihood.” That limiting function is provided by the combination of two propositions that are presented as historical facts: 1 We are told that no Aboriginal society “accumulated wealth” that exceeded a “sustenance lifestyle.”42 2 The doctrine of discovery (via Calder and Guerin) gives ultimate title in the land to the discovering nation and thereby diminishes Aboriginal rights to being derived from occupancy and possession (as opposed to sovereignty and self-government).43 These occupancy rights exist as a “burden” on Crown title that can only be removed by “solemn treaty with due compensation to the people and its decedents.”44 Together these propositions provide a more certain degree of measure by freezing the economic value of Aboriginal rights to the internally limited standard of “moderate livelihood.” This resolves the regulatory question regarding Aboriginal rights as the internally limited rights can easily be integrated into the existing unilateral resource management structures. The problem with this so-called empirical historic approach is (paradoxically) its lack of historical basis.45 The question that allows us to see this is a rather simple one, namely, why would Aboriginal peoples be limited in all cases to a “moderate livelihood”? The claim (noted above) that no Aboriginal society “accumulated wealth” is based on little more than a thin description of vastly different cultures.46 The reference to the doctrine of discovery is not simply historical claim (i.e., that the British made use of this doctrine) but an argument for its continued application and legitimacy. There seems to be some effort to present this legal fiction as being somehow beneficial to Aboriginal peoples by

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contrasting it with terra nullius. As Justice MacLachlin maintains, “The assertion of British sovereignty was thus expressly recognized as not depriving the aboriginal people of Canada of their pre-existing rights; the maxim of terra nullius was not to govern here.”47 This argument requires close attention: what is being said here is that terra nullius (i.e., the claim that Aboriginal peoples have no rights because they do not qualify as people) does not apply but discovery does.48 Discovery is presented as the basis of the Crown’s assertion of sovereignty and, while it does indeed leave some rights in place, it diminishes others (viz., it removes Aboriginal sovereignty and leaves a set of land rights based on their occupation of lands, which can then be further qualified by degree on an “incremental and pragmatic” basis). The actual substance of the distinction between terra nullius and discovery is that the former is a complete negation whereas the latter is an “incremental and pragmatic” diminishment. It seems to me the function of proclaiming that terra nullius does not apply in Canada (a statement that is repeated in Tsilhqot’in Nation)49 has a rhetorical dimension. By pointing to the pernicious doctrine of terra nullius, it seems possible to speak of the comparative virtues of the doctrine of discovery. What is left unsaid here is that these legal fictions are, in fact, related; both are based on the unilateral claim of European superiority.50 This is (pace Justice MacLachlin) the actual Grundnorm of settlement in Canada.51 The question of commercial Aboriginal rights serves to highlight the fact that the models of Aboriginal rights that are provided by Chief Justice Lamer and Justice MacLachlin are both based on the doctrine of discovery. They differ significantly on application, but both exclude the possibility of commercial Aboriginal rights. Chief Justice Lamer does so via a procedural negation. That is, there is technically no limitation within the test itself, but if and when a claimant manages to meet the various hurdles (i.e., characterization of the right, evidence that the practice was integral to the distinctive pre-contact Aboriginal society, and continuity between that practice and its current manifestation), then the standard for the justification of infringement is elevated so that the right of Aboriginal peoples can be “reconciled” with the “interest of all Canadians.”52 Justice MacLachlin rightly criticizes this definition of Aboriginal rights for being “ultimately more political than legal.”53 The critical thrust of this being that it is far too dependent upon judicial discretion and so has (as Selden argues contra equity) effectively lost its legal character. Her solution is to reconcile Aboriginal rights to Crown sovereignty via the so-called empirical historic approach, but this is, as we have seen, just as dependent upon judicial discretion. Its only possible advantage is that it sets the limitation of what an Aboriginal right can be at the outset.

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It thus provides certainty for the parties, but it does so to the detriment of Aboriginal peoples. The basis of this extraordinary degree of judicial discretion (and it is extraordinary to flatly state that no Aboriginal society “accumulated wealth”; what is the criterion that could possibly establish this as an objective judgment?54) and Crown sovereignty is the doctrine of discovery. What kind of foundation is this exactly? If the criteria for determining a good foundation is its stability (viz., in legal terms its capacity to provide certainty), then the doctrine of discovery is ill suited to this purpose. Its function is to diminish the legal rights of those that it is applied to, but it does not do so on a consistent basis. It is an “uncertain measure.” Once the user asserts sovereignty, the target population is stripped of its independence. Their pre-existing sovereignty is reduced to an undetermined measure of residual rights that are derived from their occupancy of land. This is, at least in part, a virtue as it lends itself to a kind of “incremental and pragmatic” approach. That is, it can be applied tactically in relation to local resistance. In other words, it can be adjusted on the fly. The final measure of diminishment does not need to be known in advance by the either the user or those that it is applied to. This indeterminacy has practical value as it can serve to delay or defer resistance. The process of application is incremental and so its actual character may not be immediately clear to those that it is applied to. Despite these tactical virtues, it has some very obvious strategic flaws: first and foremost, it cannot produce lasting consent and so cannot offer long-term stability. Once it is used to legitimize the user’s assertion of sovereignty, it limits the range of actions that can be used to respond to challenges. Chief Justice John Marshall noted just this vulnerability in Worcester v. Georgia when he stated that the doctrine of discovery was based on the “extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea.”55 The courts naturally feel constrained to offering nothing beyond an incremental adjustment of rights, because a full and transparent enquiry naturally exposes the empty fiction that maintains the legal order. It is this extravagance and absurdity that constrains the courts ability to respond directly to challenges of constitutional legitimacy. In effect, it is left with little but the theatrical slight in hand that John Borrow’s evocatively refers to as “sovereignty’s alchemy.”56 This is where the reference to the language of rights suddenly “crystalizing” comes from. According to the reasoning of the courts, the assertion of sovereignty spreads throughout the territory like a wave stripping Aboriginal peoples of their claim to sovereignty and self-determination.

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The Crown acquires sovereignty, legislative right, and underlying title. It leaves only the internal components of government (land use practices that are not disconnected from the regulatory functions of governance and law) like a collection of organs left on the ground after an animal is skinned. The courts come onto the scene after this has occurred. They do not doubt or question the Crown’s claim. Rather, they confine themselves to using the spectrum model to determine which of these organs persist. Those that survive are then fitted into the Crown’s unilateral regulatory systems. I believe that the courts know (or at least sense) that at its base all that this sovereign alchemy boils down to is “might makes right,” which is to effectively abandon legal justification as being nothing more than theatre. After all, within the normal (i.e., the non-Aboriginal) constitutional order they would agree with James Tully’s claim that reads, If the Constitution does not rest on the consent of the people or their representatives, or if there is not a procedure by which it can be so amended, then they are neither self-governing nor self-determining but are governed and determined by a structure of laws that is imposed on them. They are unfree. This is the principle of popular sovereignty by which modern peoples and governments are said to be free and legitimate.57

But, this simply does not hold in the Aboriginal constitutional order that has persisted for the last 150 years (Borrows rightly refers to this as Canada’s “Colonial Constitution”).58 The issue of consent is by-passed as soon as the courts refuse to question the Crown’s claims to sovereignty, legislative power, and underlying title. When the courts continue to act as if s. 91(24) granted Parliament unlimited power over Indians and their lands, they subject Aboriginal peoples to a constitutional prison and explain its difference as stemming from the fact that Aboriginal rights are sui generis and so cannot “be defined on the basis of the philosophical precepts of the liberal enlightenment.”59 By placing all of the emphasis on the term “aboriginal,” the courts have effectively jumped over the inherent rights of “peoples.” It is somehow acceptable to avoid the question of the legitimacy of Crown sovereignty (i.e., consent) and instead force Aboriginal peoples to prove their rights in a framework that precludes any consideration of their rights as peoples. Simply put, by retaining the doctrine of discovery, the court finesses rather than faces the challenge of constitutional legitimacy. Any constitutional order that is based upon this foundation will be as stable as a house built upon sand. A full-fledged crisis of legitimacy is always possible. It is an awareness of this (conscious or otherwise) that is,

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at least to my mind, behind Justice Binnies metaphor in Beckman v. Little Salmon/Carmacks First Nation: “The future is more important than the past. A canoeist who hopes to make progress faces forwards, not backwards.”60 Looking backwards poses a risk to the existing constitutional order because its foundation is an “extravagant and absurd” legal fiction. This is, to my mind, the primary reason why the Supreme Court has opted to never doubt or question the Crown’s claims to sovereignty, legislative power, and underlying title. These claims have about as much legitimacy as unilateral assertions and forged contracts can have. But, their fears of a crisis of legitimacy – the legal analogue of this concept being the dreaded legal vacuum – have led them to continue to use the doctrine of discovery. It is what explains the introduction of the s. 1 Oakes analysis for the justification of infringement to a provision of the Constitution Act, 1982 that is clearly not covered by this provision (Sparrow and Gladstone); it explains why Aboriginal rights magically “crystalize” at the moment of contact with Europeans and must be determined to be “integral to the distinctive culture” (Van der Peet); it explains why the Crown is said to be a trustee who could (prior to 1982) simply extinguish the trust by simply passing clear and plain legislation to that effect (Calder and Guerin); and, it explains why Aboriginal rights and title “fall along a spectrum with respect to their degree of connection with the land” instead of arising from their inherent right of self-determination (Delgamuukw).61 This body of jurisprudence has been a madhouse for too long. It has grown from the split in Calder into some kind of labyrinthine hall of mirrors. In each case the measure of Aboriginal rights and title shifts, but the foundations do not move. This is because it has based itself on the doctrine of discovery and it has attempted to use this legal fiction as the means to achieve reconciliation. Justice L’Heureux‑Dubé’s Dynamic Rights Approach There is, despite appearances to the contrary, a way out of this predicament that does not involve simply dissolving the existing constitutional order. In fact, Justice L’Heureux‑Dubé’s “dynamic right” approach helps to point out some avenues for changing this area of law. While it is clear that she also maintains certain aspects of the doctrine of discovery (i.e., the power of extinguishment prior to 1982, the language of a right to “occupancy and use” as opposed to self-government or selfdetermination, the unquestioned power of s. 91(24) to authorize the Indian Act), but there is also an active questioning of the legitimacy of this via a reference to international law. For instance, she cites Chief ­Justice Marshall’s description of Aboriginal societies in Worcester:

130  Joshua Ben David Nichols America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws.62

And then notes the fact that this passage was cited with approval by Hall J. in Calder and resonates with Justice Judson’s (who wrote for the majority) observation that: Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries.63

Justice L’Heureux‑Dubé’s use of Worcester and Calder places the emphasis decidedly on the fact that Aboriginal peoples were self-governing peoples. This emphasis strongly contrasts with both Chief Justice Lamer and Justice MacLachlin who lay the emphasis on the doctrine of discovery (viz., on “aboriginal” as opposed to “peoples”).64 This emphasis leads her to make the following observation: In the eyes of international law, the settlement thesis is the one rationale which can most plausibly justify European sovereignty over Canadian territory and the native people living on it although there is still debate as to whether the land was indeed free for occupation.65

This directly puts the foundation of the existing constitutional framework for both s. 35 and s. 91(24) into question. There is a bracketing effect here; by noting the contestability of the settlement thesis (viz., the doctrine of discovery), she opens up the possibility of future cases shifting the foundations of the current legal framework. There is value in this as the framework within the existing case law is by no means settled and uniform in structure. The unilateral components that radiate out from the unquestioned assumption of Crown sovereignty, legislative power and underlying title (i.e., extinguishment, infringement, and the various unbalanced legal tests) are in constant tension with another set of legal principles that are grounded in inherent right, mutual recognition and consent (i.e., the inherent source of rights in Calder, the so-called large, liberal, and generous interpretation of treaties in Simon, the continued emphasis on the need to place equal weight on Aboriginal perspective and the common law in Sparrow and Van der Peet).66 As I see it, this tension within the case law stems, in turn, from the divided nature of the

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history of colonization in Canada, which ranged (in an ad hoc manner) from the consent based practices of treaty making to the unilateral legal fiction of discovery. The benefit of this divided nature is that there is room within the existing law to shift the emphasis and change the constitutional framework. Justice L’Heureux‑Dubé does move on from this shifted emphasis to rehearse the basic structure of the existing unilateral framework, but she parts company (again) from both Chief Justice Lamer and Justice MacLachlin when she moves to how Aboriginal rights are to be defined. She objects to the terminology of “distinctive culture” – which is an objection Justice MacLachlin also makes – but her concern is not with the potential for overbreadth and the need for internal limitation. Rather, the concern is that it is too narrow. The concern with narrowness relates to the meaning and purpose of s. 35. As she puts it, … an approach based on a dichotomy between aboriginal and non-aboriginal practices, traditions and customs literally amounts to defining aboriginal culture and aboriginal rights as that which is left over after features of non-aboriginal cultures have been taken away. Such a strict construction of constitutionally protected aboriginal rights flies in the face of the generous, large and liberal interpretation of s. 35(1) of the Constitution Act, 1982 advocated in Sparrow.67

The concern here is that by placing the emphasis on “aboriginal” and not on “peoples” the court is fundamentally altering the basis of Aboriginal rights. The approach that the majority (and Justice MacLachlin) takes begins from the unquestioned operation of the doctrine of discovery – which diminishes Aboriginal peoples as peoples – and then, once the skin is removed, it sets to work cataloguing the individualized practices, traditions, or customs. Justice L’Heureux‑Dubé refuses that model and, as she puts it, places the emphasis “on the significance of these activities to natives rather than on the activities themselves.”68 The full implication of this departure is, to my mind, made clear in the following paragraph: Although I do not claim to examine the question in terms of liberal enlightenment, an analogy with freedom of expression guaranteed in s. 2(b) of the Charter will illustrate this position. Section 2(b) of the Charter does not refer to an explicit catalogue of protected expressive activities, such as political speech, commercial expression or picketing, but involves rather the protection of the ability to express. In other words, the constitutional guarantee of freedom of expression is conceptualized, not as protecting the possible

132  Joshua Ben David Nichols manifestations of expression, but as preserving the fundamental purposes for which one may express oneself, i.e., the rationales supporting freedom of expression.69

By refusing Chief Justice Lamer’s (circular) argument for the “aboriginality” of s. 35, she is able to clearly articulate that it relates to “peoples.” Her analogy with the freedom of expression clearly illustrates this point. The model is not a spectrum that can sort practices in accordance with connection to land, but one that is grounded on the fundamental connection of those practices to Aboriginal peoples as peoples.70 There is not simply a difference of degree that separates Justice L’Heureux‑Dubé’s dissent from the majority (and Justice MacLachlin), but a difference in kind. The latter creates a framework that is designed to precisely define, catalogue, and constitutionally protect a set of limited rights. It is suited to protecting an ethnic minority (in Kymlica’s sense of the term) whose aspirations are to preserve their unique cultural practices. In other words, its interpretation of s. 35 places the emphasis on the term “aboriginal,” whereas the former views Aboriginal rights as a set of practices that only have meaning when they are related to the “organized society” that they are a part of. This makes this approach suited to protecting a national minority (again in Kymlica’s sense) who “demand various forms of autonomy and selfgovernment to ensure their survival as distinct societies.”71 In other words, its interpretation of s. 35 places the emphasis on the term “peoples.” The serious nature of the problem with the definition of Aboriginal rights that Chief Justice Lamer sets out can be clearly seen in its formulation in Gladstone: Aboriginal rights are recognized and affirmed by s. 35(1) in order to reconcile the existence of distinctive aboriginal societies prior to the arrival of Europeans in North America with the assertion of Crown sovereignty over that territory; they are the means by which the critical and integral aspects of those societies are maintained. Because, however, distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are a part of that community), some limitation of those rights will be justifiable. Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation.72

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The meaning of reconciliation hinges on the legal consequences that flow from the claim that Aboriginal peoples are a part of the “broader social, political and economic community, over which the Crown is sovereign.”73 This finding effectively jumps from what seems to be a simple factual statement akin to “Aboriginal societies exist within Canada” to a legal finding that they are thereby subject to Crown sovereignty. The significance of this is difficult to overstate as it assumes the legitimacy of Crown sovereignty without a legal justification. This assumed legitimacy is then used to apply a standard of justification that is, as the Court rightly maintained in Sparrow, “so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights.”74 By continuing to make use of this standard, the Court is necessarily maintaining that Aboriginal rights are contingent in nature and subject to even less protection than Charter rights.75 Furthermore, it subjects Aboriginal peoples to a system that amounts to little more than, to borrow the words of Jeremy Bentham, “non-sense on stilts.” This may well seem to be a rather flippant dismissal, but consider the situation from the perspective of a claimant in this system. If an Aboriginal group makes it through the costly and time consuming process of providing the court with a factual record that satisfies all of the (unilaterally determined and deeply flawed) standards and establishes that a right to trade commercially exists, this right is then subject to a standard that can justify any and all infringements. This is not a judicial process; it is a trial by ordeal. Justice L’Heureux‑Dubé’s dynamic rights approach radically reimagines the definition of Aboriginal rights. The whole spectrum model that Chief Justice Lamer sets out (and Justice MacLachlin attempts to internally limit with her “historical” claims) is premised on the assumption that the doctrine of discovery stripped away the Aboriginal people’s rights as peoples (viz., self-determination). What it left was a collection of “left over features” that are based on the degree of occupancy and use of land (or, in my analogy, a collection of organs without a body). They do not give Aboriginal peoples the ability to regulate or manage the resources of the traditional territories. Rather, they are translated into a form or priority that can be unilaterally regulated and indeed infringed by the Crown. The absurdity of this spectrum model is clearly exposed by the question of commercial rights. Either they are theoretically possible but procedurally negated by a justification standard that is “so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights.”76 Or, they are simply excluded by some vast subjective historical description dressed up as “fact.” In either case the alchemy of sovereignty is the only

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possible explanation. The problem is that (despite all of the continued protests to the contrary) the spectrum model results in the creation of a set of relics, not rights. The rights in s. 35 should not arise out of the distinctness of Aboriginal peoples (as Justice L’Heureux‑Dubé rightly argues), but out of “the reality that, despite British sovereignty, aboriginal people were the original organized society occupying and using Canadian lands.”77 The emphasis here being on “organized societies” and not the “occupancy and use” of land. The purpose of Aboriginal rights in s. 35 is to protect the fundamental purpose of these land use practices, which means protecting Aboriginal peoples as peoples that have the inherent right of self-determination.78 Reimagining Aboriginal Rights via Self-determination This brings us to the second question that we set out to address at the beginning of the chapter, namely, can we use the idea of commercial Aboriginal rights to question the assumptions that ground the current definition and thereby reimagine it? My answer to this question is yes, but, naturally this answer, taken on its own, does not help to clarify matters. Given that my aim is to provide a more perspicacious perspective on the problems that limit the current definition and thereby open up avenues for us to move beyond it (to let the fly out of the fly bottle, so to speak), this answer requires a bit of unpacking. I will start this section by showing how commercial rights serve as a heuristic that exposes the (hidden) assumptions that ground the current definition. This will involve summarizing some of the material we have already covered. With this in mind we can then move forward and begin to point towards how the definition can be reimagined. This latter aim should not be understood as being simply a theoretical or speculative exercise that substitutes one a priori model for another so as to make a prescription about how things ought to be. Rather, my aim is to make the current a priori assumptions that inform the current definition of Aboriginal rights surveyable so that we are able to see things from a more situated perspective. In other words, I want to remind the court that they are wearing spectacles that can be taken off. Once they are removed it becomes possible to see the existing institutions, practices, and legal rules from another angle, under a different light, so that we can begin to use them differently.79 Commercial Rights and the Problem of Crown Sovereignty The concept of commercial rights serves as a kind of measuring rod or heuristic for exposing the assumptions that ground the current definition

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of Aboriginal rights. This is because commercial rights expose what is at stake in the problem of regulation. What I mean by this is simply that the internally limited rights (i.e., “food, social, and ceremonial purposes” or “moderate livelihood”) can be accommodated within the existing Crown regulatory apparatus. If we think of the basic hierarchy of interests that the Crown regulates in the fisheries, we can see how “internally limited” Aboriginal rights can be slotted in as being the priority after conservation. This does not require any change in the managerial structure of fisheries. But, a set of constitutionally protected commercial rights pose a very different problem. The lack of an “internal limit” means that there are no clear criteria that the regulatory body can impose to determine whether or not they are fulfilling their constitutional obligations in a way that will satisfy judicial review. This problem is at the heart of Justice MacLachlin’s dissent in Van der Peet. As she puts it, once a right manages to pass the “incidental-integral” test, “the right to pursue it obtains unlimited protection, subject only to the Crown’s right to impose limits on the ground of justification.”80 It is not that she believes that Chief Justice Lamer was unaware of this risk, but that his solution to it (viz., the “public interest” standard from Gladstone) “is indeterminate and ultimately more political than legal.”81 What both are responding to is the fact that commercial rights raise the question of jurisdiction over resources. In other words, they cannot be meaningfully accommodated within the existing regulatory bodies without substantially modifying their management structure. This is by no means a radical proposition. There are many examples of co-management structures from other jurisdictions.82 But, the Court has consistently adopted an all-or-nothing view of Crown sovereignty and this has left it stranded on the horns of a false dilemma. In the Court’s view, Aboriginal rights are either “internally limited” or entirely “unlimited.” The problem of the so-called unlimited rights is a direct product of the continued use of a concept of Crown sovereignty that arises from the doctrine of discovery. It is, figuratively speaking, as if the courts have put on a set of spectacles that only allow them to view Aboriginal rights as a burden on the Crown’s (unquestioned) sovereignty, legislative power, and underlying title. The Court seemingly cannot conceive of qualifying Crown sovereignty in terms of degrees and so it cannot recognize the inherent right of Aboriginal peoples to govern themselves. It can only determine and define the nature of their rights as a burden or limit; it is, at best, a procedural shield that is designed to protect a set of cultural practices.83 With these spectacles in place, the Court can only ever conceive of commercial rights as being the bugbear of “unlimited” rights (just as in Tsilhqot’in Nation, the Court is unable to

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imagine that were it to exclude provincial jurisdiction over Aboriginal title lands, it could result in “legislative vacuums”).84 This can be seen in the way reconciliation is first articulated in the case law. In Sparrow, the majority stated that: There is no explicit language in the provision that authorizes this Court or any court to assess the legitimacy of any government legislation that restricts aboriginal rights. Yet, we find that the words “recognition and affirmation” incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power. Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights.85

The view adopted here is fundamentally imbalanced. The Court is basing its reading of s. 35 on s. 91(24), but it is not actually subjecting the later to any direct interpretive questioning. There is similarly no “explicit language” in s. 91(24) that would grant the Crown undoubted sovereignty, legislative power, and underlying title. Since Lord Watson’s decision in St. Catherine’s Milling, the courts have consistently read s. 91(24) as an unlimited grant of power of Indians and their lands, but even in the limited positivistic terms of constitutional interpretation, this is clearly an interpretation.86 But, the Court simply treats this as a given (as a kind of self-interpreting provision). This is what they refer to in Sparrow as “federal power,” and its ultimate foundation is the doctrine of discovery.87 This form of “reconciliation” is one that is unilaterally imposed on Aboriginal peoples. It begins from the premise that the assertion of Crown sovereignty diminished their rights as peoples and then sets to work to determine the degree of diminishment via a set of judicially constructed tests whose measures are, at best, uncertain. This interpretation of the nature of Crown sovereignty is, to my mind, exposed by the question of commercial rights because, as I stated above, these rights require some degree of jurisdiction so as to enable Aboriginal peoples to exercise meaningful self-determination and practical self-government. The current view of Crown sovereignty prevents the courts from being able to imagine the middle ground that exists between “internally limited” and “unlimited” Aboriginal rights. This “middle ground” is also not something that is entirely novel or foreign.

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Rather, it is already there, hiding in plain sight. It can be seen in Justice L’Heureux‑Dubé’s dynamic rights approach. Her definition of Aboriginal rights places the emphasis on the fact that the various land use practices that are in question can only acquire their meaning and purpose when they are seen in relation to the “organized societies” they are grounded in. The rights that are “recognized and affirmed” in s. 35 are not merely a set of sui generis Aboriginal relics that can be fit into existing unilateral regulatory systems and curated by judicial review, but rather they are the rights of Aboriginal peoples. This is why there is no “pre-contact” requirement in her vision of the test and no sweeping historical claim regarding the “accumulation of wealth.” Her approach is, as we have seen, by no means free of the colonial assumptions that have subjected Aboriginal peoples to a system of governance that is fundamentally despotic for over 150 years now. But, it does openly question their legitimacy and practically opens up a middle ground that can be used to move beyond the false dilemma of “internally limited” or “unlimited” Aboriginal rights. It does so by opening up the possibility that s. 35 is designed to “recognize and affirm” the inherent right of Aboriginal peoples to self-determination. This move from the current system of Aboriginal rights (which Murphy evocatively refers to as “prisons of culture”) to a nation-to-nation relationship has also been extensively surveyed within the academic literature.88 There is a wide array of examples that could be used to guide this transition. For example, Barsh and Henderson’s “treaty federalism,” Slattery’s concept of “generative rights,” Borrows’s vision of Indigenous constitutionalism, and Tully’s articulation of diverse and democratic constitutionalism with its conventions of mutual recognition, consent, and continuity.89 There are also the recommendations of the Royal Commission on Aboriginal peoples and of key government studies such as the Penner Report.90 This move does not require an additional provision of the Constitution to become a legal reality; it simply requires the Court to fulfil its duty as the guardians of the Constitution and interpret s. 91(24) without the legal alchemy supplied by that archaic and racist fiction known as the doctrine of discovery. Simply put, the move away from the all-or-nothing concept of sovereignty (one that is based on the magical idea that the Crown has unilateral power over Indians and their lands) and towards a more relational and interdependent concept of internal self-determination (i.e., one that bases the Crown-Aboriginal relationship on holding power with Aboriginal peoples within a diverse federal system with plural sources of sovereignty) is already a possibility within the existing constitutional order; it simply requires us to reimagine and rearrange the current configuration.91

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Practices of Self-determination This may sound to be (and, in many ways, is) a significant change in the law. There are many who would concede that this nation-to-nation model is a better version of the constitutional order, but that it is somehow impossible. The general structure of this response is to present this as being beyond the limits of the Courts own jurisdiction. In my view, Chief Justice Marshall captured the strongest version of this argument in Johnson v. M’Intosh when he stated: Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government and whose rights have passed to the United States, asserted title to all the lands occupied by Indians within the chartered limits of the British colonies. It asserted also a limited sovereignty over them and the exclusive right of extinguishing the title which occupancy gave to them.92

There are more than a few problems embedded in this reasoning. Part of it is the very absurdity that Chief Justice Marshall himself will go on to acknowledge ten years later in Worcester v. Georgia (viz., he dismissed the doctrine of discovery as being “extravagant and absurd idea”).93 Once the legitimacy of the legal alchemy of discovery is questioned, the only remaining leg of this argument seems, in my mind, to rely on the idea that the concept of sovereignty is based on the right of the strongest and, further, that the courts lack the jurisdiction to question this. The seemingly pragmatic act of weighing the interests of a minority against that of the majority trades on an argument that effectively reduces the law to being little more than a force in fancy dress (viz., this is why Justice MacLachlin objects to the standard in justification in Gladstone as being “ultimately more political than legal”).94 In my view, this position is tacitly grounded on a metaphysical claim of human nature that is captured in the Latin proverb Homo homini lupus est (man is a wolf to another man) and, like all such claims, its legitimacy rests on us accepting this pessimistic view.95 If we accept it then it seems that there is little point in continuing to concern ourselves with the inner working of the courts at all and content ourselves with finding the best means to measure force so as to become some kind of “objective” political meteorologists. There are a number of political philosophies that adopt this position, but it seems to me that this standpoint has more to do with what Wittgenstein refers to as the “craving for generality” than it does with actual legal and political

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struggles. So, if we can set these overinflated metaphysical claims aside, then we can actually begin the actual work of considering how particular cases can and do result in significant changes. Once we move away from abstract generalities and begin to consider actual cases, we can begin to see things from a more situated or groundlevel perspective. If we adopt this perspective and reconsider the actual struggles over governance and resource management among Aboriginal peoples, the Crown, and industry, we quickly see that the current unilateral approach to Aboriginal rights has failed to provide certainty to all parties. The balances of the legal tests are, as we have seen, skewed in favour of the Crown by the Court’s unquestioning adoption of Crown sovereignty, legislative power, and underlying title, but the labyrinth of tests and procedures that have grown out of s. 35 mean that projects that do not gain the consent of the Aboriginal peoples impacted by them will be caught up in lengthy and complicated litigation. So even if we attempt to bracket the question of justice and place the emphasis on the pragmatic “realities” of economic development, the current model is unable to provide the certainty that it promises; by effectively by-passing the need for consent, it simply alters the pattern of resistance. While the federal government and the provinces largely continued to take a unilateral approach to project planning and approval (viz., focusing their energies on a model of consultation and accommodation that excludes the need for free, prior, and informed consent), industry has begun to reconsider the wisdom of this approach due to its high cost and lack of predictability. It seems that the “uncertain measure” of the current approach to Aboriginal rights has led industry to consider a more direct method of engagement with Aboriginal peoples; one that obtains consent and so avoids litigation.96 Likewise, Aboriginal peoples themselves have not internalized the Court’s perspective on the nature of their rights.97 In other words, just because the Court has made “prisons of culture,” this has not translated into Aboriginal peoples accepting these limits as binding. Rather, this narrow view has led to a more strategic approach to litigation within the domestic sphere, the development of more sophisticated protest techniques and renewed efforts to shape international legal norms. Litigation in the Canadian courts can serve as a tactic to delay proposed projects and thereby achieve the desired outcomes indirectly. By this I mean that what Aboriginal claimants may seek by utilizing the current Aboriginal rights framework is not necessarily the Court’s recognition and protection for a given cultural practice, but a way of gaining some additional leverage in an unbalanced process. Simply put, the current framework attempts to finesse the need for mutual consent by limiting the purpose of Aboriginal rights to the protection of

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cultural practices, but the practical success of this approach hinges on Aboriginal peoples accepting this outcome. While the framework may well be able to legally constrain Aboriginal rights to a narrow band of site and species-specific practices, this does not necessarily determine the reality on the ground. Rather, it simply changes the unsatisfied parties’ approach to the problem. An unsatisfactory outcome from the courts does not simply end there. It is simply one outcome within a struggle that involves numerous parties and fronts. As such, while the limitation of a right may seem to be a legal advantage to the Crown, this legal advantage does not necessarily translate into a favourable practical outcome. For example, the narrow characterization of the right claimed in Pamajewon has certainly discouraged Aboriginal peoples from using the Aboriginal rights framework to pursue the recognition of their inherent right to self-government, but has by no means served to end the struggle itself; it has merely altered its course. As Wittgenstein reminds us, no game, no matter how detailed, is bounded on all sides by rules; it is always possible to find another way of making a move. Let us consider two more recent examples of practical self-governance taking place outside of the bounds of the existing framework. The Costal First Nations created the Guardian Watchman Network (GWN), which has monitored and protected the lands and waters of the mid and north coast since 2005.98 As government cutbacks have served to decrease the capacity of the Department of Fisheries and Oceans (DFO) to protect the valuable and fragile environmental resources in the area, the GWN has actively filled that gap. While the GWN does co-operate with DFO officers, it does not see itself as being authorized by federal law. Rather, the GWN maintains that “First Nations have the authority and responsibility under traditional laws to protect important wildlife species, food sources, and significant cultural resources.”99 Likewise, the Tsilhqot’in Nation has taken a similar inherent right approach to resource protection within their traditional territory. On 4 October 2014 (less than six months after the Supreme Court’s decision that recognized their Aboriginal title to a portion of their traditional territory), the Tsilhqot’in Nation announced the creation of the Dasiqox Tribal Park on lands that are within their traditional territory, but are outside of those they now possess title to. The purpose of the park itself is clearly set out in a draft position paper dated June 2016: Dasiqox Tribal Park is an expression of governance initiated by the Xeni Gwet’in and Yunesit’in Government and supported by the Tsilhqot’in National Government. The leadership of both communities recognizes a pressing need to construct an alternative vision and land governance system

The Limitations of Aboriginal Rights  141 that reflects the values of the local people who live from the land. The Dasiqox Tribal Park is also called Nexwagwez?an – literally meaning “there for us” – to describe an area that prioritizes Tsilhqot’in values, ensuring that it remains of benefit to future generations.100

As they maintain, The Dasiqox Tribal Park initiative incorporates three interconnected themes: Ecosystem Stewardship, Economic Sustainable Livelihoods, and Cultural Revitalization. The three themes demonstrate a divergence from the Crown’s approach because it involves the Tsilhqot’in perspective of culture and economy in relation to the ecosystem.101

Like the example of the GWN, this clearly articulates an inherent rights approach to the question of economic development. Moreover, the question of economic development is explicitly recognized as being interconnected with both environmental stewardship and cultural revitalization. This is seen as a direct contrast with the Crown’s approach, which has, through the Court’s interpretive framework, served to strictly delimit and contain Aboriginal rights as cultural practices. As Michael Murphy argues, this approach to Aboriginal rights “has proven to be both a shield and a sword in relation to Indigenous claims – a shield which protects Indigenous rights, but also a sword that cuts them down to a size more palatable to the state and the wider society in which they exist.”102 This approach has effectively taken Aboriginal land use practices and translated them into a set of modern group rights that can then be governed by the existing unilateral resources management structures. This definition of their legal rights has left Aboriginal peoples in a dependent position where the federal and the provincial governments ultimately determine how resources are developed and allocated. Aboriginal peoples have actively resisted this narrow approach to their rights by exercising de facto sovereignty (i.e., sovereignty in fact and practice) over their traditional territories. This move towards de facto sovereignty is a direct rejection of the Court’s “prison of culture.” It addresses Aboriginal rights as a set of land use practices and territorial interests that require governance. This governance is seen as being inherent in nature. This is counters the current approach to Aboriginal rights, which relies on litigation to define a right and then situates it within existing Crown resource management structures. While the “food, social and ceremonial” licences and the somewhat wider “moderate livelihood” standards have played a role in cultural resurgence, they have done so by actively excluding Aboriginal

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governance over their traditional territories. It has perpetuated a system in which the federal and provincial governments continue to make decisions for Aboriginal peoples, control the use of resources on their traditional lands, and maintain veto power over all of their actions. This model has grounded itself in the idea that the purpose of s. 35 is to protect Aboriginal rights. This assumes that Aboriginal peoples are an ethnic minority who are generally motivated by a desire to preserve their culture. But, this has simply never been the case. Aboriginal peoples have continually resisted this despotic administrative interference in their inherent right to govern themselves and their traditional territories. The current model is grounded in a 150-year-old constitutional tradition that presumes an all-or-nothing model of Crown sovereignty, legislative power, and underlying title, but its only possible claim to legal legitimacy rests on the magical claims of the doctrine of discovery. This model has failed on all fronts; it lacks legitimacy in law and it cannot even manage to provide the certainty required for economic development. The Ahousaht case is a testament to both the resilience of Aboriginal resistance and to the failure of the existing definition of Aboriginal rights. The law is simply unable to make sense of the facts that are presented to it in any consistent manner. The law has constructed a labyrinth in which each step of the test requires an almost impossibly broad exercise of judicial discretion and while this modus operandi is not necessarily foreign to the common law, it certainly cannot be expected to produce the kind of certainty and acceptance that serves to resolve conflicts. The current justification trial in Ahousaht clearly illustrates this; the applicable standard for the justification of infringement is as the Court in Sparrow rightly maintained, “so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights.”103 This means that everything is dependent upon the “uncertain measure” of judicial discretion. If the infringement is simply justified, then the Nuu-chah-nulth Nations will continue their struggle for self-determination by strategically pressing their case on different fronts. This legal outcome will not provide the DFO with the de facto certainty and stability it needs to provide a viable regulatory environment for the fishery. If the court finds that the infringement is not justified, then the question will be what kind of remedy can possibly address the conflict. The most stable outcome would be to establish a territorial boundary in which the Nuu-chah-nulth Nations can laterally co-manage the fishery with the DFO under the shared and overriding limitation imposed by the need to ensure sustainability. But, given the results of previous Aboriginal rights case law this outcome is highly unlikely. In my mind, the fact that this is so unlikely is simply

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further evidence that the current definition of Aboriginal rights needs to be fundamentally changed. As soon as we adopt a more situated perspective the nation-to-nation relationship quickly begins to look like the more realistic approach for all parties involved. This is consistent with the developing norms of international law as the United Nations Declaration of the Rights of Indigenous Peoples clearly shifts the basis to self-determination and the need for free, prior, and informed consent. It is also consistent with the leading social science research on Aboriginal economic development: the Harvard Project on American Indian Economic Development has concluded that the only approach that has produced results is “nation-building. As Stephen Cornell and Joseph Kalt put it, … “de facto” sovereignty is an essential precondition for reservation economic development. A decade of Harvard Project research has been unable to uncover a single case of sustained development that did not involve the recognition and effective exercise of tribal sovereignty: the practical assertion by tribes of their right and capacity to govern themselves. There is a major policy lesson here. The lesson is that sovereignty is one of the primary development resources any tribe can have. The reinforcement of tribal sovereignty should be the central thrust of public policy. One of the quickest ways to bring reservation development to a halt and prolong the impoverished condition of reservations would be to undermine tribal sovereignty. Furthermore, tribal sovereignty works not only for Indians; it has benefits for non-Indians as well. Around the country, economically successful Indian nations are becoming major players in local and regional non-Indian economies.104

This requires that Aboriginal peoples have governing institutions that can provide the following: (1) stable institutions and policies; (2) fair and effective dispute resolution; (3) separation of politics from business management; (4) a competent bureaucracy; and (5) a cultural match.105 These requirements cannot be met within the existing model as any governing institutions that Aboriginal peoples establish are subject to multiple and (frequently) conflicting administrative structures. At its basis, it requires the recognition of jurisdiction over territory and this is precisely what the current definition of Aboriginal rights actively obstructs. This obstruction has led all involved parties to seek other extra-juridical (at least in terms of the Canadian courts) methods for resolving conflicts arising from competing interests over resources. Aboriginal peoples have put renewed efforts into exercising de facto self-government over their territories and defining international legal norms. The resource

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industry has been developing its own models of consultation in an effort to by-pass (or augment) the Crown practices that have so frequently left their projects stranded in the courts. These trends should serve as a signal to the Canadian courts that the existing definition of Aboriginal rights has failed and that it needs to be addressed soon. Without a substantive change in the law, parties will continue to pursue their own ends and this will in all likelihood result in more confrontational approaches being taken outside of the courts as seen in the recent Dakota Access Pipeline protests. This is a failure of the law that can be addressed; it merely requires that the judiciary correct its current course and renounce the doctrine of discovery, so that an actual nation-to-nation relationship can be built on even constitutional grounds. NOTES 1 Ahousaht Indian Band and Nation v. Canada (Attorney General), 2013 BCCA 300 (hereinafter Ahousaht III). 2 Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011 BCCA 237 (hereinafter Ahousaht II); Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 (hereinafter Lax Kw’alaams). 3 Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494 at para. 489 (hereinafter Ahousaht I). 4 Ahousaht III, supra note 1 at para. 44; Ahousaht II, supra note 2 at para. 90. 5 SCC docket 34387; leave denied 30 January 2014. 6 Ahousaht I, supra note 3 at para. 487. [emphasis added] 7 Ibid. at para. 875. 8 For example, see Delgamuukw v. British Columbia, [1997] 3 SCR 1010 at para. 207 (hereinafter Delgamuukw). 9 At trial, Justice Garson found that Canada’s legislative objectives were valid, but that the evidence put forward was insufficient to make a finding demonstrating minimal impairment. She then gave the parties two years to negotiate and find a way of accommodating the rights of the Nuu-chahnulth Nations. On 9 March 2015 the case returned to the Supreme Court of British Columbia to determine whether or not the infringement was justified. 10 The similarity I have in mind can be found in Charles Dickens’s vivid description of the case in chapter one of Bleak House: “Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as

The Limitations of Aboriginal Rights  145 to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out.” Charles Dickens, Bleak House, ed. Stephen Gill (Oxford: Oxford University Press, 2008) at 14. 11 Ahousaht Indian Band and Nation v Canada (Attorney General), 2018 BCSC 633 (hereinafter Ahousaht IV). 12 Ahousaht I came to a considerable 910 paragraphs, but Ahousaht IV easily surpasses it with its 1,783 paragraphs. 13 Ahousaht IV, supra note 11 at para. 441. 14 R. v. Pamajewon, [1996] 2 SCR 821 at para. 26. 15 R. v. Van der Peet, [1996] 2 SCR 507 (hereinafter Van der Peet); R. v. N.T.C. Smokehouse Ltd., [1996] 2 SCR 672 (hereinafter N.T.C. Smokehouse); R. v. Gladstone, [1996] 2 SCR 723 (hereinafter Gladstone). 16 Van der Peet, supra note 15 at paras. 46 and 60. 17 Gladstone, supra note 15 at paras. 57, 73–4. 18 Russell Lawrence Barsh and James Youngblood Henderson, “The Supreme Court’s Van der Peet Trilogy: Naive Imperialism and Ropes of Sand” (1997) 42 McGill Law Journal 993 at 1004. 19 The quote is from Macbeth, Act V, Scene V. 20 R. v. Sappier; R. v. Gray, [2006] 2 SCR 686 at para. 72 (hereinafter Sappier and Gray). The right was limited to members of the Pabineau and Woodstock First Nations. 21 Ibid. at para. 25. It is interesting to note that at para. 74, Justice Binnie (rightly) dissented on this point arguing that the right should permit trade within the Aboriginal communities who possess the right. 22 By this I mean that the rights that have been recognized by the Court lack economic significance and do not allow Aboriginal peoples to manage the resources in their traditional territories. They do, undoubtedly, have value for cultural resurgence and it is possible to argue for their legal value as a kind of shield to unfettered Crown resource extraction. This has certainly been one of the main driving forces of this area of litigation as once a right is proven then there is a duty to consult in place, but the current understanding of Aboriginal rights (i.e., as being as lesser species of property right) means that it is merely a procedural protection and not a substantive constitutional one.

146  Joshua Ben David Nichols 23 Delgamuukw, supra note 8 at para. 138. 24 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511 at para. 39 (hereinafter Haida Nation). 25 Ibid. at para. 43. 26 Counsel for the Nuu-chah-nulth Nations rightly argued this exact point at trial. See Ahousaht I, supra note 3 at para. 499. 27 This foundational challenge to the definition of Aboriginal rights in Van der Peet is by no means a new one. The wave of critical scholarship that followed the release of the decision has defined how the case is read – examples include John Borrows, “The Trickster: Integral to a Distinctive Culture” (1997) 8:2 Constitutional Forum 27; Leonard I. Rotman, “Hunting for Answers in a Strange Kettle of Fish: Unilateralism, Paternalism and Fiduciary Rhetoric in Badger and Van der Peet” (1997) 8:2 Constitutional Forum 40; Bradford W. Morse, “Permafrost Rights: Aboriginal Self-Government and the Supreme Court in R. v. Pamajewon” (1997) 42 McGill Law Journal 1011; Barsh and Henderson, supra note 18; Kent McNeil, “How Can Infringements of the Constitutional Rights of Aboriginal Peoples Be Justified?” (1997) 8:2 Constitutional Forum 33; Michael Asch, “From “Calder” to “Van der Peet”: Aboriginal Rights in Canadian Law, 1973–1996,” in Paul Havemann, ed., Indigenous Peoples’ Rights in Australia, Canada and New Zealand (Oxford: Oxford University Press, 1999); and for a more recent comparative analysis of Aboriginal rights see Michael Murphy, “Prisons of Culture: Judicial Constructions of Indigenous Rights in Australia, Canada and New Zealand” (2008) 87 Canadian Bar Review 357. But, the Court has seemingly reduced the critical thrust of this scholarship to a limited consideration of the problem of “frozen rights” (i.e., the question of the meaning of “distinctive culture”). This reduces a critique of the very definition (or, perhaps more precisely, the hidden premises that ground this definition) of Aboriginal rights to being little more than a critique of the technical details of its application. In my view the actual thrust of many of these critiques is far more general. Avigail Eisenberg clearly articulates this more general problem when she states that the distinctive culture test is designed to “protect Indigenous ways of life but only by de-linking this protection from the recognition of Indigenous claims for sovereignty and self-determination” in “Indigenous Cultural Rights and Identity Politics in Canada” (2013) 18:1 Review of Constitutional Studies at 92. My own view is that the problems with the current definition of Aboriginal rights stem from this “de-linking” and, further, that the only basis for this “de-linking” is the doctrine of discovery. This explains the magical power of the moment of contact and how Indigenous claims to sovereignty and selfdetermination are suddenly diminished, leaving only this crystalized spectrum of land-based rights. This has lead the Court to treat Aboriginal

The Limitations of Aboriginal Rights  147 peoples as if they were simply a number of “ethnic groups” who were seeking recognition of their ethnic identity. When in actuality they are (to borrow Will Kymlica’s helpful distinction) “national minorities” that “wish to maintain themselves as distinct societies alongside the majority culture, and demand various forms of autonomy and self-government to ensure their survival as distinct societies” in Will Kymlica, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995) at 10. In order to remedy this problem, we have to begin from the premise that Aboriginal peoples are peoples and so have a right of self-determination. And, furthermore, this right of self-determination is the foundation from which all Aboriginal rights spring; examples of scholarship that take this position – or, at least, one that I see as being similar in kind and strongly influencing my own interpretation – include those already listed above in addition to Brian Slattery, “The Generative Structure of Aboriginal Rights” (2007) 38 Supreme Court Law Review (2d) 595; John Borrows, “(Ab)Originalism and Canada’s Constitution” (2012) 58 Supreme Court Law Review (2d) 351; and James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995). 28 Thus far the Court has made it clear that it is comfortable with granting “internally limited” rights (e.g., the standards of food, social and ceremonial purposes or “moderate livelihood”), but beyond that it has expressed concern that rights that do not have an internal limitation could be effectively unregulatable; see Justice MacLachlin concern with rights that would have “unlimited protection” in Van der Peet, supra note 15 at para. 258, or Justice Garson’s stipulation that “the right is not an unlimited right to fish on an industrial scale” in Ahousaht I, supra note 3 at para. 489. This concern with so-called unlimited rights is similar to the concern with “legislative vacuums” in Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257 at para. 147 (hereinafter Tsilhqot’in Nation). The only way these become concerns is if Aboriginal peoples are presumed to lack any and all forms of jurisdiction over their traditional territories. I would argue that both are bugbears, which are produced by all all-or-nothing conception of Crown sovereignty. If Aboriginal peoples have some degree of jurisdiction over their territories, then there is no such thing as “unlimited” rights or “legislative vacuums” as such rights would have territorial limits and would be regulated by the Aboriginal group in question through some type of lateral co-management structure. 29 The negotiations between the Nuu-chah-nulth Nations and the Department of Fisheries and Oceans (DFO) effectively broke down due to the fact that the DFO made unilateral planning decisions and then would make take-it-or-leave-it licencing offers. This lack of including the Nuuchah-nulth Nations at the planning stage effectively meant that there was

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30

31 32 33 34 35

36

little or no real change in policy and it was done while the Crown was continuing to litigate the case in order to overturn the trial decision. This outcome was by no means necessary. The vagueness of the “right to fish and sell fish” is not necessarily a barrier to finding creative co-management options (such as the Boldt fishery in Washington State), but it can be if one of the parties is insisting on a legal decision that draws bright lines in order to come to the table and restructure the relationship. Justice Humphries’s absurdly narrow characterization of the right effectively extends the foundational doctrinal confusion at the heart of s. 35 and in so doing it blocks the path to meaningful reconciliation. For some Indigenous perspectives on how the existing framework creates roadblocks and can be used differently see the chapter 4 entitled “Economic Justice in Practice” in this volume. It is helpful to remember that this was precisely Justice MacLachlin’s concern with the introduction of the “public interest” standard for the justification for infringement that was introduced in Gladstone. As she put it, this “large view of justification … cuts back the right on the ground that this is required for reconciliation and social harmony” and it does so in a way that (in her view) “runs counter to the authorities” and “it is indeterminate and ultimately more political than legal.” See Van der Peet, supra note 15 at para. 302. Van der Peet, supra note 15 at paras. 46 and 60. N.T.C. Smokehouse, supra note 15 at para. 20. [emphasis added] Gladstone, supra note 15 at para. 62. [emphasis added] Ibid. at para. 73. [emphasis added] I should clarify that there is a legal disagreement in Justice Chiasson’s dissents. The ambit of discretion in the exiting test makes Justice Garson’s vague “right to fish and sell fish” a possible outcome. He is objecting to this possibility by effectively arguing along the lines of Justice MacLachlin’s dissent in Van der Peet (i.e., that commercial rights are impossible). This line is (as he notes) repeated by Justice Binnie in R. v. Marshall, [1999] 3 SCR 456 at paras. 7–8, when he writes that treaty rights are limited to securing “necessities” and so cannot extend to the “open-ended accumulation of wealth.” The problem (strictly in terms of the law) is that (as the majority notes) Marshall is a treaty case, so it is by no means clear that this applies to the facts in Ahousaht. Even if it did, this line of reasoning reduces the ambit of discretion and so provides more certainty, but it does so by arbitrarily limiting Aboriginal rights (as I detail in my criticism of Justice MacLachlin’s reasoning further on). John Selden, Table Talk, quoted in M.B. Evans and R.I. Jack, eds., Sources of English Legal and Constitutional History (Sydney, Australia: Butterworths, 1984) at 223–4.

The Limitations of Aboriginal Rights  149 37 Van der Peet, supra note 15 at para. 258. [emphasis added] 38 Ibid. at paras. 255–9. 39 Ibid. at para. 259; for the justification limit, see R. v. Sparrow, [1990] 1 SCR 1075, note 15 at 1113. 40 Van der Peet, supra note 15 at para. 302. 41 Ibid. at para. 261. [emphasis in original] 42 Ibid. at para. 259; Gladstone, supra note 15 at para. 41. 43 Van der Peet, supra note 15 at 265–75. There is an extensive body of literature on the legal doctrine of discovery and terra nullius, see Andrew Fitzmaurice, “The Genealogy of Terra Nullius” (2007) 38:129 Australian Historical Studies 1; Patrick Macklem, “What Is International Human Rights Law? Three Applications of a Distributive Account” (2007) 52 McGill Law Journal 575 at para. 36; Patrick Macklem, “First Nations Self-Government and the Borders of the Canadian Legal Imagination” (1991) 36 McGill Law Journal 382 at 399–406; and Tracey Lindberg, “The Doctrine of Discovery in Canada” and “Contemporary Canadian Resonance of an Imperial Doctrine” in Robert J. Miller, Larissa Behrendt, and Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford: Oxford University Press, 2010) at 89–125, 126–70. 44 Van der Peet, supra note 15 at para. 275. 45 In effect, Justice MacLachlin objects to the a priori reasoning of Chief Justice Lamer, but her historical claim is actually an a priori determination dressed up as a factual observation. 46 By the term “thin description” (which I am borrowing from Gilbert Ryle), I mean a unilateral and acontextual description of human behaviour. This is in direct contrast with a “thick description,” which takes into account the stratified, crisscrossing, and overlapping nature of context. For a clear articulation of this distinction, see Clifford Greetz, The Interpretation of Cultures (New York: Basic Books, 1977). The problem is effectively highlighted as we ask what would constitute evidence of “wealth accumulation”? In other words, what is the criteria that determines the distinction between sustenance and “wealth accumulation” and are these criteria universally applicable? It seems that the very possibility of this is predicated on the stages view of history that was prevalent in the historiography of the Scottish Enlightenment (e.g., a universal linier progression from hunting and gathering, to pasturage, agriculture and, finally, commerce). 47 Van der Peet, supra note 15 at para. 270. 48 This feature of Justice MacLachlins reasoning in Van der Peet is often overlooked by commentators. It is especially concerning when we consider the vague, but suggestive qualification of Crown sovereignty as being an “assertion” or “de facto” in nature; see Haida Nation, supra note 24 at para. 32; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director),

150  Joshua Ben David Nichols [2004] 3 SCR 550 at para. 42; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para. 66; and Tsilhqot’in Nation, supra note 28 at paras. 14, 22, 25, 29, 58, 69, 81, and 83. On a liberal reading these statements open up a number of possible arguments around the constitutional status of treaties and the nature of Crown sovereignty: see Mark D. Walters, “The Morality of Aboriginal Law” (2006) 31 Queen’s Law Journal 470 at 515; Felix Hoehn, Reconciling Sovereignties: Aboriginal Nations and Canada (Saskatoon: Native Law Centre, 2012). But, if they are read in light of her dissent in Van der Peet, then it seems that discovery is not questioned. Rather, it is accepted holus bolus as legitimate legal doctrine. This means that all that is being reconciled is (as the Court in Sparrow maintained) the power of s. 91(24) with the (self-imposed) duty of s. 35. 49 Tsilhqot’in Nation, supra note 28 at para. 69. 50 I believe the absurdity of the doctrine of discovery can be exposed by a simple thought experiment. If it is the case that the doctrine enables one group to acquire sovereignty via unilateral assertion and what it leaves is a set of occupancy rights, which are, in turn, only preserved by virtue of the fact that they are sui generis in nature – viz., as Chief Justice Lamer emphasizes in his circular assertion: “Section 35(1), it is true, recognizes and affirms existing aboriginal rights, but it must not be forgotten that the rights it recognizes and affirms are aboriginal”: see Van der Peet, supra note 15 at para. 17 [emphasis added] – what would occur if the Aboriginal group (group A) exhibited no differences from the settlers (group B)? While this is highly improbable, it is at the very least conceivable. And by this logic outlined above, group B could simply legally absorb group A entirely by simply “discovering” them. In other words, group A would simply become members of group B by virtue of unilateral assertion. How could this be the case? What kind of law or legal fiction could explain such a transaction? Again, we find ourselves confronting a kind of fairy tale logic, but if this strikes us as patently absurd (as it well should) it is hard to see why introducing the concept of gradational diminishment saves this legal fiction. 51 In Van der Peet, Justice MacLachlin makes use of Hans Kelson’s concept of the Grundnorm. Kelson argued that the Grundnorm (i.e., basic norm or rule) forms the underlying basis of a legal system and so acts as the ultimate source of constitutional legitimacy; see Hans Kelson, General Theory of Law and State (Cambridge, MA: Harvard University Press, 1949). She uses it to argue that the “fundamental understanding … was that the aboriginal people could only be deprived of the sustenance they traditionally drew from the land and adjacent waters by solemn treaty with the Crown, on terms that would ensure to them and to their successors a replacement for the livelihood that their lands, forests and streams had since ancestral times provided them” (see Van der Peet, supra note 15 at para. 272). But,

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52 53 54

55 56

57 58

59

these agreements are made on the basis of a diminished set of rights to occupancy. This means that the actual foundation is the doctrine of discovery and so its claim to legitimacy is different in kind than those the Court recognizes in the Reference re Secession of Quebec, [1998] 2 SCR 217 (i.e., federalism, democracy, the protection of minorities, constitutionalism and the rule of law). Gladstone, supra note 15 at para. 83; cited with approval in Lax Kw’alaams, supra note 2, at para. 46. Van der Peet, supra note 15, at para. 302. I feel like this simply Locke’s argument concerning property and labour. It relies on the capacity of one party to determine the actions of the other in some neutral or objective fashion and due to the lack of criteria for this judgment it has no limits. In the end, it is little better than saying “what is yours is now mine because you do not know how to use it” and attempting to stave off resistance by allowing the other to use it under certain (unilaterally determined) constraints. Worcester v. Georgia, 6 Pet. 515 (U.S. 1832) at 517 (hereinafter Worcester). John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw v. British Columbia” (1999) 37 Osgoode Hall Law Journal 537. Also see the recent continuation of this in John Borrows, “The Durability of Terra Nullius: Tsilhqot’in Nation v British Columbia” (2015) 48:3 UBC Law Review 701. James Tully, Public Philosophy in a New Key, vol. 1, Democracy and Civic Freedom (Cambridge: Cambridge University Press, 2008) at 286. See John Borrows, “Canada’s Colonial Constitution” (Paper delivered at the Faculty of Law, University of British Columbia, Vancouver, 19 January 2016), [unpublished], and Brian Slattery, “The Aboriginal Constitution” (2015) 67 Supreme Court Law Review (2d) 319. Van der Peet, supra note 15 at para. 19. This interpretation of s. 91(24) has stood since St. Catharine’s Milling & Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.) (hereinafter St. Catharine’s Milling), but its basis is obscure. The courts continue to uphold it as if the provision itself was self-interpreting. In order to maintain that it is legally consistent we would have to indulge in some rather extensive historical and legal fiction. We would have to argue that the British Imperial Crown was free to unilaterally reinterpret all of the existing treaties it had made in its favour, acquire unlimited sovereignty over those it had not made agreements with, and then gift them to the newly formed Dominion which could then play the part of the bona fide purchaser for value. The wording of the provision does permit other constructions. In fact, the wording of the Constitution Act, 1867 holds that the provision grants power “in relation to” (not “over”) Indians and their lands. This wording could support an interpretation that grants Parliament the exclusive power to make and honour

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60 61 62 63

64

65

66

agreements with Aboriginal peoples who govern themselves free from interference from the Legislatures. This makes the principle of consent the foundation of the Canadian constitutional order and allows us to dispense with sovereignty’s alchemy. This is the position of “treaty federalism” articulated by Russel Lawrence Barsh and James Youndblood Henderson in The Road: Indian Tribes and Political Liberty (Berkeley: University of California Press, 1980) and, more recently, by Michael Asch in On Being Here to Stay: Treaties and Aboriginal Rights in Canada (Toronto: University of Toronto Press, 2014). Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 SCR 103 at para. 10. Delgamuukw, supra note 8 at para. 138. Worcester v. Georgia, supra note 55 at 542–3 cited in Van der Peet, supra note 15 at para 107. Calder et al. v. Attorney-General of British Columbia, [1973] SCR 313 at 328 [emphasis added by Justice L’Heureux‑Dubé] cited in Van der Peet, supra note 15 at para. 107. For Chief Justice Lamer’s use of the Marshall trilogy, see Van der Peet, supra note 15 at paras. 35–7, and for Justice MacLachlin’s use, see her citation of Guerin v. The Queen, [1984] 2 SCR 335 cited in Van der Peet, supra note 15 at para. 267. Van der Peet, supra note 15 at para. 109. I omitted the following references from the citation. The references are as follows: Patrick Macklem, “Normative Dimensions of an Aboriginal Right of Self-Government” (1995) 21 Queen’s Law Journal 173; Brian Slattery, “Aboriginal Sovereignty and Imperial Claims” (1991) 29 Osgoode Hall Law Journal 681; and Michael Asch, Home and Native Land: Aboriginal Rights and the Canadian Constitution (Toronto: Methuen Publications, 1984). The inherent source of Aboriginal rights and title (as opposed to the theory that such rights were devolved from the Crown, which had stood as the law in Canada from Lord Watson’s decision in St. Catharine’s Milling in 1888) entered the law in Canada with the Calder decision in 1972. The interpretative principles applicable to treaties are covered in a number of cases: Simon v. The Queen, [1985] 2 SCR 387 at 404; R. v. Sioui, [1990] 1 SCR 1025 at 1043; R. v. Badger, [1996] 1 SCR 771 at para. 78; and R. v. Sundown, [1999] 1 SCR 393 at para. 24. See also J. (Sákéj) Youngblood Henderson, “Interpreting Sui Generis Treaties” (1997) 36 Alberta Law Review 46; L.I. Rotman, “Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test” (1997) 36 Alberta Law Review 149. In regards to the Aboriginal perspective, it is useful to cite Chief Justice Lamer’s words from Van der Peet, supra note 15 at para. 49: “The definition of an aboriginal right must, if it is truly to reconcile the prior occupation of Canadian territory by aboriginal peoples with the assertion

The Limitations of Aboriginal Rights  153 of Crown sovereignty over that territory, take into account the aboriginal perspective, yet do so in terms which are cognizable to the non-aboriginal legal system.” 67 Van der Peet, supra note 15 at para 153. 68 Ibid. at para. 157. 69 Ibid. at para. 158. [emphasis in original] 70 The distinction between Justice L’Heureux‑Dubé’s account of Aboriginal rights and that of the majority (and Justice MacLachlin) is caught nicely in Brian Slattery’s contrast between “specific” and “generic” rights in Slattery, supra note 27. 71 See Kymlica, supra note 27. In his concurrent decision in Mitchell v. M.N.R., [2001] 1 SCR 911 at para. 132, Justice Binnie (joined by Justice Major) unequivocally states that Aboriginal rights “are projected into modern Canada where they are exercised as group rights in the 21st century by modern Canadians who wish to preserve and protect their aboriginal identity.” [emphasis added] 72 Gladstone, supra note 15 at para. 73. [emphasis added] 73 Ibid. 74 Sparrow, supra note 39. 75 The Oakes test (upon which the test in Sparrow is obviously based) does not begin with a reverse onus and holds the Crown to a much stricter standard of proportionality. Conversely, Aboriginal rights require that the Aboriginal claimant first prove the existence of the right, but it does not require the Crown to prove its claim to sovereignty, legislative power, and underlying title. It simply assumes this without question. 76 Sparrow, supra note 39. 77 Ibid. at para. 159. 78 Justice L’Heureux‑Dubé’s account of Aboriginal rights is consistent with the conclusion reached by José R. Martinez Cobo in his 1983 Study of the Problem of Discrimination against Indigenous Populations for the United Nations Economic and Social Council, which stated that “self-determination, in its many forms, must be recognized as the basic precondition for the enjoyment by Indigenous peoples of their fundamental rights” (cited in Roger Normand and Sarah Zaidi, Human Rights at the UN: The Political History of Universal Justice [Indianapolis: Indiana University Press, 2008] at 274). The only way that the spectrum model can maintain this is by arguing that the doctrine of discovery automatically (i.e., regardless of consent) makes Aboriginal peoples citizens of the Canadian state (or before 1948 subjects of the British Empire). This, obviously, unilaterally diminishes the character of their rights to claims for ethnic distinctness and not self-determination. For more on the international and comparative aspect of Aboriginal rights, see chapter 9, “Wise Practices in Indigenous

154  Joshua Ben David Nichols Economic Development and Environmental Protection,” and chapter 10, “Looking Inward, Looking Outward: Finding Solutions in Indigenous and International Law” in this volume. 79 My debt to the work of Ludwig Wittgenstein is difficult to overstate. My use of terms such as reminders, perspicaciousness, and surveyability and the metaphors of spectacles and the fly bottle are grounded in his work and in James Tully’s illuminating reading of it. 80 Van der Peet, supra note 15 at para 258. [emphasis added] 81 Ibid. at para. 302. 82 I believe that one could reasonably argue that the existing definition of rights and the litigation that (continually) arises from it constitutes a very costly, uncertain, and ineffective co-management structure. 83 This should be surprising given that federalism is a constitutive principle of Canada’s constitutional order and that the Royal Proclamation, 1763 and treaties provide ample grounds for the continued existence of the so-called third order of government. After all, complicated federal systems are by no means exceptional within the history of the common law. Despite the ample resources at their disposal, the courts have adopted a view of Crown sovereignty in relation to Aboriginal peoples that is radically inconsistent with the history of the relationship between the Crown and Aboriginal peoples, its own constitutional principles, and international legal norms (e.g., the values and principles expressed in the United Nations Declaration of the Rights of Indigenous Peoples). 84 Tsilhqot’in Nation, supra note 28 at para. 147. 85 Sparrow, supra note 39 at 1109. [emphasis added] 86 It is useful to cite the specific language of s. 91: “It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say.” It is patently clear that the phases “in relation to” and “extends to” in combination with “Indians, and Lands reserved for the Indians” cannot simply be read as an unequivocal grant of unilateral power over Indians and their lands. See the Constitution Act, 1867, 30 & 31 Vict., c. 3 [emphasis added]; St. Catharine’s Milling, supra note 59. 87 This is, to my mind, what John Borrows’ has in mind when he refers to the (Ab)originalism that can be seen and moves on to reduce s. 35 to little

The Limitations of Aboriginal Rights  155 more than a procedural burden on Crown sovereignty. See Borrows, supra note 27. 88 Murphy, supra note 27. 89 See Barsh and Henderson, supra note 59; Slattery, supra note 27; John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016); and Tully, supra note 27. 90 See Report of the Royal Commission on Aboriginal Peoples, Restructuring the Relationship, vol. 2 (Ottawa: Minister of Supply and Services, 1996); and, Parliament of Canada, Special Committee on Indian Self-Government, Indian Self-Government in Canada (Ottawa: Ministry of Supply and Services, 1983). 91 For more on this conception of federalism and democratic constitutionalism, see Tully, supra note 27, and Stephen Tierney, Constitutional Law and National Pluralism (Oxford: Oxford University Press, 2004) and “Enlightening Federalism” (Paper delivered at the Civic Freedom in an Age of Diversity: James Tully’s Public Philosophy colloquium, UQAM, Montreal, April 2014) [unpublished]. 92 Johnson v. M’Intosh 21 U.S. 543 (1823) at 21. 93 Worcester, supra note 55 at 517. 94 Van der Peet, supra note 15 at para. 259. [emphasis added] 95 This view of human nature has always been puzzling to me. It is not that I do not see that there are grounds for such a deeply pessimistic view; rather, I just have difficulty seeing the point of it. That is, once this picture of the world is adopted, it seems that all that remains is the “wisdom of Silenus” (viz., “It is best not to be born at all; and next to that, it is better to die than to live…”), which seems to just cancel the motivation to do anything at all. See Aristotle, “Fragments,” in Jonathan Barnes, ed., The Complete Works of Aristotle, vol. 2, trans. Jonathan Barnes and Gavin Lawrence (Princeton: Princeton University Press, 1984) at 2401–2. 96 For a legal practitioner’s perspective on this, see Bill Gallagher, Resource Rulers: Fortune and Folly on Canada’s Road to Resources (Waterloo, ON: Bill Gallagher, 2012). Also, Brian Calliou’s work on “wise practices” offers a similar message to industry; namely, there is a need for an alternative to best practices, which emphasizes the need for a context sensitive approach to reach mutual consent. See Brian Calliou, “Wise Practices in Indigenous Community Economic Development” (2012) 4 Inditerra Revue internationale sur l’authochtonie 14. Also see, chapter 3, “Wise Practices Approach to Indigenous Law, Governance, and Leadership: Resistance against the Imposition of Law,” in this volume. 97 What this points to is that you cannot resolve a conflict with a national minority by treating them as if they were an ethnic minority seeking to preserve and protect their cultural identity. As Kymlica helpfully points out,

156  Joshua Ben David Nichols one of the fundamental distinguishing features between these two groups is the categorical difference in the ends that they are seeking (i.e., selfgovernment vs. cultural protection). Offering one the outcome that the other is seeking does not achieve resolution or, to use the term chosen by the courts, reconciliation. It simply alters the shape of the struggle (e.g., transferring it from the domestic courts to the international legal and political arenas). 98 The Coastal First Nations are made up of a group of eight First Nations: Gitga’at, Haida, Haisla, Heiltsuk, Kitasoo/Xai’Xais, Metalkatla, Nuxalk, and Wuikinuxv. 99 Ecotrust Canada, “Aboriginal Guardian and Watchmen Programs in Canada” (10 January 2013) at 2, https://wahkohtowin.com/wp-content /uploads/2017/10/Aboriginal-Guardian-and-Watchmen-Programs-inCanada-2013-with-recommendations.pdf. 100 Draft Position Paper, Nexwagwez?an Dasiqox Tribal Park (March 2016) at 1, https://dasiqox.org/wp-content/uploads/2018/03/DasiqoxPositionPaper -March2016.pdf. 101 Ibid. at 4. 102 Murphy, supra note 27 at 358. 103 Sparrow, supra note 39. 104 Stephen Cornell and Joseph P. Kalt, “Sovereignty and Nation-Building: The Development Challenge in Indian Country Today” (1998) 22:3 American Indian Culture and Research Journal 187 at 210–11. 105 Ibid. at 196.

6 The State of Canadian Law on Representation and Standing in Aboriginal Rights and Title Litigation ryan beaton

Introduction Who may speak on behalf of Indigenous peoples in Canadian courts of law? Who is allowed to assert Aboriginal rights and title in proceedings before Canadian courts? As litigation over Aboriginal rights and title continues to pick up steam across the country, questions of representation and standing are turning into some of the thorniest that courts have to grapple with. They are questions that go to the heart of promises of reconciliation, for instance to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada, because the fulfilment of such promises depends on an honest reckoning with the colonial legacy of unevenly fragmented, amalgamated, and disrupted Indigenous communities.1 Canadian courtrooms should not be the primary forums for resolving the many difficult issues of, for example, who constitute the “Indigenous peoples” identified as rights-bearers in UNDRIP and who their legitimate representatives are.2 However, Canadian courts are inevitably being asked to play a – not insignificant – role in addressing these issues, and this chapter focuses on that role, without losing sight of the serious limitations on courtrooms as forums for reconciliation. Notably, questions of representation and standing before Canadian courts are of great strategic importance to Indigenous communities contemplating assertions of Aboriginal rights and/or title.3 If there is dissent or if there exist competing leadership groups within such communities, questions of representation and standing become particularly pressing. The aim of this chapter is to show how these issues play out when they tumble into Canadian courts. More broadly stated, my aim in this ­chapter is to map the current legal landscape on questions of representation and standing in the Canadian law of Aboriginal rights and title.

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An initial note on this terminology as I use it here: questions of representation (or authority) deal with who may speak on behalf of the relevant community when asserting rights or title before the courts, for instance when asking a court to grant a declaration that the community has title to a certain territory. Questions of standing deal more generally with who may assert an Aboriginal right or title before the courts, not necessarily in a representative capacity – a typical example here is that of a defendant in a criminal or regulatory prosecution who asserts an Aboriginal right or title as a defence; in doing so, the defendant need not ask the court to grant any declaration recognizing Aboriginal rights or title, but may simply be seeking to defend against a conviction. Technically speaking, then, questions of representation are a narrower category of questions of standing. My use of the terms here might be somewhat idiosyncratic. However, for the purposes of the discussion below, it will prove useful to distinguish representation and standing, in line with the definitions just given. The courts have not always kept these different issues (representation vs. standing in a more general sense; seeking a declaration of rights vs. defending against conviction) as clearly distinct as they might have, which has led to some confusion, as explained below. The courts have also occasionally bemoaned the use of criminal proceedings as a vehicle for litigating claims of Aboriginal rights or title.4 Clarifying the distinction between, and the different rules that govern, representation and standing is one of the tasks currently facing the courts. Most of the discussion that follows applies both to assertions of Aboriginal title and to assertions of Aboriginal rights other than title. Much of the discussion also applies to assertions of treaty rights, though my focus is primarily on non-treaty Aboriginal rights and title. Collectively, Aboriginal title, Aboriginal rights other than title, and treaty rights are referred to as section 35 rights, and for the most part the principles governing representation and standing apply similarly across these different categories of section 35 rights. That said, there are some variations. My aim here is to provide a road map through these principles and the puzzles that currently arise from them, not a comprehensive tour of the rules that apply to each category of section 35 rights. Thus I focus primarily on Aboriginal rights and title below, though I draw on cases dealing with treaty rights as well. In some sections, the discussion is more applicable to Aboriginal title, in others to Aboriginal rights other than title. I will do my best to point out any significant differences between these categories, insofar as the differences are relevant to the discussion in each section. However, as noted, my goal here is to provide a lay of the land, not a comprehensive survey.

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I also want to stress that the entire discussion below deals with issues of representation and standing that arise when assertions of rights and title are addressed to the Canadian legal system. Thus I do not deal with questions of authority as these are viewed from within Indigenous legal systems themselves, except to the extent that Canadian law treats this internal Indigenous legal viewpoint as relevant to Canadian law on representation and standing in the Aboriginal rights and title context. In sum, my orientation is pragmatic: I want to lay out the current legal landscape facing any group asserting an Aboriginal right or title in Canadian courts and/or to federal or provincial governments.5 Issues relating to representation and standing have the potential to bog down an Aboriginal right or title claim in heavy legal muck at the preliminary stages of court proceedings or of discussions with government. I hope the discussion below will prove helpful in highlighting the most common forms of legal wrangling over representation and standing. I will also highlight areas of uncertainty and ways in which that uncertainty might be resolved. The complexity and uncertainty in this area of law flow from the fact that diverse issues of law collide on questions of representation and standing. I structure this chapter by laying out six of the most significant legal issues at play in this area, and highlighting some of the most common puzzles generated as a result. Here is a brief summary of these six legal issues, which are discussed in detail below in the remaining sections of this chapter: First, there is the collective nature of Aboriginal rights and title. From the point of view of Canadian law, Aboriginal rights and title vest in the appropriate Aboriginal collective as such, that is, they are “communal” or “collective” rights. The collective nature of Aboriginal rights and title underlies all the issues and complications related to the questions of who may represent or otherwise assert them in court. Second, there is the distinction – muddy in some cases – between asserting an Aboriginal right or Aboriginal title as a defence against criminal charges and asserting it in order to obtain a judicial declaration of the right or title. Speaking in general terms that will have to be qualified in the discussion below, the courts have indicated that individuals have standing to assert Aboriginal rights or title as a defence to prosecution, without having to establish a mandate from the relevant community, but that anyone seeking a judicial declaration of Aboriginal rights or title will need to establish a mandate to speak on behalf of the community. In the context of criminal proceedings, courts have struggled to balance the interests of individuals charged with offences and of communities whose

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rights are asserted; discussion of these points will make this second section the longest of the chapter. Third, there is the nature of representative actions, generally speaking, in Canadian law. The application of the general criteria for representative actions to the context of Aboriginal rights and title gives rise to a number of issues in litigation, most notably the question of whether claimants represent an objectively identifiable Aboriginal people. In a number of cases, the federal and/or provincial governments have argued that the asserted Aboriginal collective is ill-defined for purposes of a representative action. The case law reveals some uncertainty as to whether the representative status of a claimant needs to be established as a preliminary matter before trial, or through evidence submitted at trial itself. Fourth, we have the question of the nature of the collective that Canadian law cognizes as the proper rights-holding entity. This question has been particularly salient in cases dealing with claims of Aboriginal title. Often claims are brought by band councils on behalf of Indigenous collectives that constitute “bands” under the Indian Act. However, claimants need not seek a declaration on behalf of a collective that has band status, or any other legal status under federal or provincial legislation. While Canadian law on this point is still in early stages of development, the emerging principle is that the proper title-holder is an Indigenous people that is united by common social, political, and linguistic ties and common traditions and customs. Fifth, there is the requirement of continuity between the modern collective on whose behalf an Aboriginal right or title is asserted and the historical collective from whom the claimed right or title derives. Legal puzzles relating to this requirement of continuity are currently proliferating and have a tendency to drag each of the above issues back into the picture in complicated ways. Sixth, there is the nature of Aboriginal title as the product of the interaction between common law and Indigenous legal systems.6 Where an Indigenous community effectively governed territory under its own legal system at the time of Crown sovereignty assertion, Canadian courts have stated that the interaction between this pre-existing Indigenous legal system and the common law may give rise to Aboriginal title over the territory concerned. If the Indigenous legal system in question lodges authority over territory in an individual or group, that might be considered as evidence of a mandate for that individual or group to represent the Aboriginal collective in question when asserting a title claim in Canadian courts. Many disputes relating to representation turn on this question of which group or individual is the proper authority, as determined by the

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Indigenous community’s own political and legal system, to represent a claim for Aboriginal rights or title before Canadian courts. The sections below unpack these brief summaries in greater detail. 1. Aboriginal Rights and Title Are “Communal” or “Collective” Rights The overall aim of this chapter is to clarify Canadian law on issues of representation and standing to assert Aboriginal rights and title. This requires us to be clear, first of all, on who precisely holds Aboriginal rights and title. On this point, the courts have plainly stated that Aboriginal rights and title vest in the relevant Aboriginal community, that is, they are “communal” or “collective” rights. In this section, I highlight some of the relevant court pronouncements, and try to clear up a point of confusion that sometimes arises when the distinction between holding and asserting a right is not kept clear. Chief Justice Lamer clearly stated the communal nature of Aboriginal title in Delgamuukw: “A further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation.”7 More recently, Chief Justice McLachlin affirmed this point in Tsilhqot’in, making explicit that the beneficial interests held under Aboriginal title are themselves held communally: “The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group.”8 The same generally holds true of Aboriginal rights other than title, as well as treaty rights – in other words, all section 35 rights. The Supreme Court stated broadly in Powley that “Aboriginal rights are communal rights: They must be grounded in the existence of a historic and present community, and they may only be exercised by virtue of an individual’s ancestrally based membership in the present community.”9 As discussed in greater detail below, the Court in Behn v. Moulton Contracting Ltd. recently reaffirmed that “s. 35 rights … are collective in nature.”10 The Court has often made the same point while describing specific Aboriginal rights. For instance, in R. v. Sappier; R. v. Gray, at issue was an Aboriginal right to harvest wood.11 Writing for eight of nine justices, Justice Bastarache stated: “The right to harvest wood for domestic uses is a communal one … The right to harvest (which is distinct from the right to make personal use of the harvested product even though they are related) is not one to be exercised by any member of the aboriginal community independently of the aboriginal society it is meant to preserve.”12 In his brief concurring reasons, Justice Binnie agreed that the

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Aboriginal right at issue “is communal in nature.”13 In sum, the case law has on the whole been clear and consistent in stating that section 35 rights are held collectively by the relevant Aboriginal group (though, as discussed in detail in sections below, the precise identity of that group is often a matter of contention).14 That said, the Supreme Court recently seemed to leave open the possibility that some Aboriginal and treaty rights might “belong to” individuals or “have an individual aspect regardless of their collective nature.”15 This statement is from Behn, decided in 2013, the Court’s most recent extended discussion of standing to assert Aboriginal rights.16 In Behn, the Court noted “[s]ome interesting suggestions in respect of the classification of Aboriginal and treaty rights.”17 The Court made particular note of the following: For example, the interveners Grand Council of the Crees and Cree Regional Authority propose in their factum, at para. 14, that a distinction be made between three types of Aboriginal and treaty rights: (a) rights that are exclusively collective; (b) rights that are mixed; and (c) rights that are predominantly individual.18

The Court declined to adopt or develop this point in any detail, but did make the following general comments: It will suffice to acknowledge that, despite the critical importance of the collective aspect of Aboriginal and treaty rights, rights may sometimes be assigned to or exercised by individual members of Aboriginal communities, and entitlements may sometimes be created in their favour. In a broad sense, it could be said that these rights might belong to them or that they have an individual aspect regardless of their collective nature.  Nothing more need be said at this time.19

However, these two paragraphs of the Court’s reasons immediately follow this narrower statement: “It may well be that, in appropriate circumstances, individual members can assert certain Aboriginal or treaty rights, as some of the interveners have proposed.”20 A careful reading of the above passages in context leads, I believe, to the conclusion that the Court was (at least primarily) suggesting that individuals sometimes have standing to assert Aboriginal or treaty rights, not that the rights themselves are held individually. This conclusion is supported, notably, by the Court’s broad statement, in the same reasons, that “s. 35 rights … are collective in nature.”21 I will return below to the distinction between who holds and who may assert an Aboriginal right. For the moment, here is a quick recap of the

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communal or collective nature of Aboriginal rights and title as canvassed thus far: in Canadian law, Aboriginal title vests collectively, as do the beneficial interests held under it. As a general principle, treaty rights and Aboriginal rights other than title also vest collectively, though the Supreme Court has (perhaps) indicated that there may be exceptions. Finally, for the purposes of this section, we should also note the collective nature of the right to consultation and accommodation that accompanies any “credible but unproven” claim of Aboriginal right or title.22 The Supreme Court first declared in Haida Nation v. British Columbia (Minister of Forests) that the Crown cannot simply ignore claims of Aboriginal rights and title on the basis that they have yet to be proven in court or recognized by government.23 That is, “[t]he Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.”24 Thus, where proposed Crown action may adversely impact the interests protected by claimed Aboriginal rights or title, the Crown owes a duty to the rights- or title-holders to consult and, where appropriate, accommodate their concerns relating to the proposed action. The content of this Crown duty varies with the facts of each case, but its scope, in general terms, “is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.”25 Given the expense, uncertainty, and grindingly slow pace of comprehensive treaty negotiation and of rights and title litigation, the Crown duty of consultation and accommodation is proving to be an increasingly important tool for Indigenous communities looking to challenge proposed Crown action that may impact their claimed rights and/or title.26 Accordingly, it is important to properly identify to whom the Crown duty of consultation is owed. In Behn the Court held, without qualification, that the Crown duty to consult was owed to collective Aboriginal rights-holders, not to individuals: The duty to consult exists to protect the collective rights of Aboriginal peoples. For this reason, it is owed to the Aboriginal group that holds the s. 35 rights, which are collective in nature … But an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s. 35 rights.27

This paragraph draws the distinction, once again, between holding rights collectively and the possibility of individuals asserting them. The Court

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noted in Behn that all but one of the defendants was a member of Fort Nelson First Nation, which the Court accepted as the rights-holding group under the treaty at issue in the case. That they were members of the rights-holding collective and, in this sense, rights-holders themselves was never in dispute. Although the Court could have been clearer on this point, the issue it is trying to resolve in the passage quoted above is not who the proper rights-holder is but rather who may properly assert the right in the case before it. Thus, despite the Court’s guarded suggestions that Aboriginal rights may sometimes be held individually, I think the better view – at least of the current state of the law – is that they are always held collectively, but may be asserted by individuals in certain circumstances. So the real question is – who, in Canadian law, may properly assert section 35 rights, given that they are held collectively? The following section traces a key distinction between asserting an Aboriginal right or title as a defence in regulatory or criminal proceedings, on the one hand, and seeking a judicial declaration recognizing the asserted right or title, on the other. 2. Asserting Aboriginal Rights or Title as Defences versus as Requests for Judicial Declaration A number of major Aboriginal rights and title cases have come before the courts by way of regulatory or criminal proceedings, often by way of charges relating to fishing, hunting, or timber. In these cases, defendants were charged with offences relating to these activities, and sought to defend themselves by claiming Aboriginal rights and/or title to engage in them. That is, these defendants have typically conceded that their conduct amounted to a violation under the relevant regulation or criminal law, but argued that this regulation or law was inapplicable to them because they belonged to an Indigenous community whose right to engage in that conduct was constitutionally protected under section 35. Some of the most significant cases defining section 35 rights came to the courts in this way: for example, Sparrow,28 Van der Peet,29 Powley,30 Marshall; Bernard,31 Sappier; Gray,32 Morris.33 It does not appear that the issue of standing was raised in any of these cases, nor that there was any question raised as to whether the defendants had the authorization of their respective communities to assert the Aboriginal and/or treaty rights they raised as defences. The issue has, however, begun to pop up in more recent cases, both at the Supreme Court and in lower courts. In the following paragraphs, this section of the chapter addresses the question: how have courts balanced (1) the interests of individual defendants in raising

Representation and Standing in Aboriginal Rights and Title Litigation  165

Aboriginal rights and title as defences, with (2) the need to adjudicate assertions of Aboriginal rights and title in the appropriate forum? On the one hand, if an Aboriginal person engages in an activity that is constitutionally protected by an Aboriginal or treaty right under section 35 and finds himself/herself charged with an offence for doing so, surely he/she shouldn’t have to seek anyone else’s authorization to defend himself/herself against a fine and/or jail time. It would be a questionable rule of regulatory or criminal law that required a defendant to obtain community authorization to assert his/her rights. On the other hand, the complication arises, of course, because very often the Aboriginal right or title at issue has never clearly been established in court or recognized by the Crown. In that case, the defendant will first have to establish the right he/she raises as a defence. Since section 35 rights are communal, as explained in section 1 above, the court will have to rule on the existence and scope of any claimed right or title belonging to the relevant community as a whole. Thus the defendant’s right to assert any relevant defences confronts the community’s right to choose who will speak on its behalf, particularly where the stakes are so high. This situation is less than ideal, to say the least. As Justice LeBel stated in Marshall; Bernard, we should “re-think the appropriateness of litigating aboriginal treaty, rights and title issues in the context of criminal trials.”34 A review of the cases in which Aboriginal rights or title have been raised as defences against regulatory or criminal charges reveals that the parties and the courts in these cases have largely ignored or left implicit issues relating to the defendants’ standing to assert rights or title on behalf of their communities, and judges have often been unclear on the identity of the communities whose rights or title were being asserted. Kent McNeil has canvassed these cases in some detail in a recent paper, drawing the following conclusions. He states that “[i]t is clear from the cases we have already examined that individuals can successfully rely on Aboriginal rights as a defence to prosecutions.”35 At the same time, “[s]ince the issue for the courts in these cases is deciding whether the accused is entitled to the benefit of the claimed Aboriginal right, it is generally not necessary for the judges to specify precisely the collective entity that holds the right today.”36 It might not always be necessary for the judges to specify precisely the collective rights-holder in order to resolve such cases, but, as McNeil himself goes on to explain, it can introduce confusion into the analysis of the asserted right or title if the courts are unclear on the identity of the proper rights-holder.37 Moreover, if a defendant successfully makes out a claim of an Aboriginal right or title, then it seems to follow that

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every other member of the collective rights-holder “would have the benefit of that right.”38 In other words, any judgment issued by a court in such cases may have important consequences on the legal interests of everyone who arguably belongs to the collective whose Aboriginal rights are at issue. And though judges need not always specify precisely the collective rights-holder when an accused raises an Aboriginal right as a defence, there are cases in which the issue cannot be avoided. In R. v. Bernard, the defendant was charged with unlawfully hunting deer without a valid licence contrary to provincial law. On 16 November 2004, Mr. Bernard was approached by conservation officers in the northern part of the city of Saint John, New Brunswick. He admitted that he was hunting deer. When asked to produce a hunting licence, Mr. Bernard handed the conservation officers a status card indicating his status as a Mi’kmaq Indian and as a member of the Indian Brook Band of Mi’kmaq. The Indian Brook Indian Reserve is located near Shubenacadie, Nova Scotia, about 200 km from the mouth of the Saint John River. The Crown did not accept this status card as a valid hunting licence that would entitle Mr. Bernard to hunt for deer in the Saint John area where he admitted to doing so. Mr. Bernard was charged on 16 March 2005, though the trial was repeatedly adjourned over several years “as it appeared that the Provincial government promised to enter into negotiations with New Brunswick’s First Nations on a range of issues, including hunting rights.”39 The negotiations broke down and the trial eventually concluded in December 2009. In his defence, Mr. Bernard asserted an Aboriginal right to hunt in the Saint John area. He claimed this right as a member of the Mi’kmaq community as a whole, not as a member of the Indian Brook Band or any other subgroup of the Mi’kmaq people. The trial judge summarized the crux of the issue as follows: Recognizing that an aboriginal right is a communal right, the Defendant must demonstrate that hunting for food was specific to the history of the Mi’kmaq community with which he claims the right. There is a question of what constitutes a community in the context of this claimed right. The Crown argues that there is no evidence of a settlement or defined group of Mi’kmaq in the subject area where the Defendant was hunting which could be identified at the time of pre-contact as a community. Further the Crown argues that the Defendant’s failure to identify with any modern day Mi’kmaq community in the subject area or the province is indicative of the absence of a communal tie. The Defendant asserts that the Mi’kmaq did use the subject area for hunting and that it is the Mi’kmaq people in general which constitute the

Representation and Standing in Aboriginal Rights and Title Litigation  167 community. He does so notwithstanding the evidence that from post contact sources the Mi’kmaq identified themselves by seven separate tribes located in modern day Nova Scotia and New Brunswick.40

The trial judge ultimately accepted the evidence put forward by Mr. Bernard to establish Mi’kmaq presence in the Saint John River valley: “I would accept that as to the traditional hunting grounds in the lower St. John River valley and in particular in the Saint John area, there is compelling evidence that there was a Mi’kmaq (Souriquois) presence in the mouth of the St. John River, a coastal region and in all probability it existed at the time of contact.”41 However, the trial judge reached two further conclusions that prevented him from finding that Mr. Bernard could establish an Aboriginal right to hunt on the basis of that historic Mi’kmaq presence. First, the trial judge concluded “that the Mi’kmaq at least in the period post control, did identify and group themselves into bands, voluntarily maintaining those distinctions in their dealings with the authorities.”42 In other words, “it appears that there were recognizable administrations by the Mi’kmaq of distinct hunting areas for members of bands”43 such that these bands, and not the Mi’kmaq as a whole, would be the historic rights-holding communities. Second, the trial judge concluded that Mr. Bernard had not established that he belonged to a present-day Mi’kmaq community that (1) descended from the relevant historic Mi’kmaq band(s) occupying the Saint John area at the time of contact, and (2) had exercised the historic hunting rights with sufficient continuity from the time of contact to the present. Indeed, the trial judge concluded that Mr. Bernard had not established any such community existed: “There is not compelling evidence to support the position that for 250–300 years thereafter that there was a community of Mi’kmaq in the area exercising the aboriginal right to hunt for food. It may exist, but it is not before me.”44 In sum, the trial judge found that Mr. Bernard “has neither shown the existence of nor his belonging to that community of Mi’kmaq in whom the right to resume the practice still rests.”45 He thus convicted Mr. Bernard on the charges laid against him. The trial judge made clear at the very outset of his reasons that he found the proceedings an unfortunate venue in which to adjudicate the existence of Aboriginal rights: This is one of those cases which cause criminal courts great concern. It illustrates the need to find a more effective, timely and fair method to resolve questions between aboriginals and the state over aboriginal rights. Such

168  Ryan Beaton questions lend themselves to civil resolutions, perhaps in the mode of a civil[,] or administrative, order or finding so that the parties can determine their respective rights.46

He then quoted Justice LeBel’s statement in Marshall; Bernard, to the same effect.47 On appeal, the summary conviction appeal judge upheld the conviction, but noted the trial judge’s concern about adjudicating Aboriginal rights in summary conviction proceedings, noted also the statement of Justice LeBel, and noted finally the trial judge’s regret at having to impose a mandatory minimum sentence on Mr. Bernard.48 As a result, the summary conviction appeal judge exercised his inherent jurisdiction as a superior court judge to stay the sentence: Here in this case of Mr. Bernard the trial judge, a Judge of the Provincial Court was powerless to avoid imposing a minimum statutory jail sentence and fine but anxious “to avoid an injustice.” Thus he seems to have arranged for an immediate application for a stay of the sentence to this Court. I interpret that as a request for assistance by the Provincial Court to this Court “to avoid an injustice”. In these unique circumstances I dismiss the appeal but exercise the inherent jurisdiction of this Court to permanently stay or suspend the minimum statutory sentence imposed on Mr. Bernard of seven days imprisonment and a fine of $2,000.49

The decision of the summary conviction appeal judge was upheld by the New Brunswick Court of Appeal, which also added its voice in support of Justice LeBel’s warning “to the effect that there has to be a more appropriate way to litigate aboriginal treaty, right and title issues than through the prosecution of summary conviction offences.”50 This case well illustrates the competing interests at play when an accused asserts an Aboriginal right as a defence to criminal charges, and the difficulties judges face in trying to balance these interests. In another recent case out of New Brunswick, R. v. Reynolds, the accused raised an Aboriginal right in defence against a charge of illegally possessing and selling a moose carcass. The trial judge went further than the summary conviction appeal judge in Bernard and entered a stay of the charges themselves. While the trial judge entered the stay on various grounds, including that Crown prosecution was an abuse of process in the circumstances of the case, the summary conviction appeal judge upheld the stay on only one of these grounds, namely the concerns expressed by Justice LeBel at paras. 142–4 of Marshall; Bernard. After quoting those

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paragraphs from Justice LeBel’s reasons, the summary conviction appeal judge stated: The frailties and inadequacies of the summary conviction process for adjudicating aboriginal treaty rights identified in R. v. Marshall/R. Bernard, supra, are applicable in this case. The limitations of the Provincial Court processes with respect to broad fact-finding (i.e. no provision for examination for discovery, document discovery etc.) are an impediment to thorough consideration of the often complex social and legislative facts presented in constitutional cases. This is particularly concerning given the high degree of deference which is to be accorded to a trial judge’s finding on these facts by reviewing courts (R. v. Bedford 2013 SCC 72 at paras. 48–56). In my view, the trial judge properly concluded that a summary conviction prosecution in the Provincial Court is not the appropriate forum for determining the aboriginal treaty issues in this case and he was justified in granting the stay of proceedings on that basis. Accordingly, the appeal is dismissed.51

In May 2016, the Court of Appeal of New Brunswick dismissed a motion by the Crown for a stay of the precedential value of the summary conviction appeal judge’s reasons.52 In August 2017, the Court of Appeal dismissed the Crown’s appeal of the stay of charges against Mr.  Bernard, “largely for the reasons given by the Provincial Court judge.”53 While agreeing with the sentiments of Justice LeBel echoed by the summary conviction appeal judge, the Court of Appeal found that, taken alone, they would not be a sufficient ground to enter a permanent stay of charges, though they would perhaps justify a temporary stay.54 Nonetheless, the Court of Appeal upheld the permanent stay because “the Provincial Court judge was correct to conclude, in the circumstances, the prosecution of Mr. Reynolds amounted to an abuse of process.”55 These recent cases out of New Brunswick show that courts are beginning to act on the concerns expressed by Justice LeBel in Marshall; Bernard, resisting the use of criminal proceedings to test assertions Aboriginal rights and title.56 These cases, and the concerns that judges express about using criminal proceedings to adjudicate Aboriginal and treaty rights, could provide useful resources for both individual defendants and affected Aboriginal communities. In particular, community leaders who do not want to see their communities’ rights adjudicated through such proceedings could seek leave to intervene and point to these recent developments in the case law to argue that charges should be stayed until relevant issues relating to asserted rights or title can reach negotiated settlement or resolution through appropriate civil proceedings.

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McNeil notes, as quoted above, that individual defendants may rely on Aboriginal rights as defences to prosecution.57 However, communities may also press their demands to have their Aboriginal rights determined in a forum more appropriate than a forum that hears criminal proceedings. If the courts are receptive to such demands, then we may see an increasing number of stays entered in cases where the accused asserts Aboriginal rights or title in defence.58 Before closing this section, it is worth taking a closer look at Behn, in which the Supreme Court of Canada considered the assertion of an Aboriginal right in defence to a civil cause of action. This case provides some guidance on when defendants may assert an Aboriginal right in defence in non-criminal cases. In Behn, British Columbia had issued Moulton Contracting “two timber sale licences and a road permit (the ‘Authorizations’)” that “entitled Moulton to harvest timber on two parcels of land within the FNFN’s [Fort Nelson First Nation’s] territory, both of which are within the Behn family trapline.”59 Neither the FNFN nor the Behn family sought to challenge the issuance of the licences by way of judicial review. However, when Moulton attempted to move equipment in to begin its logging operations, members of the Behn family had established a “protest camp” or a “blockade” with the aim of preventing the logging. Moulton then brought a tort action against the Behns for intentional interference with contractual relations. The defendants “argued in their defence that the licences were void because they had been issued in breach of the constitutional duty to consult and because they violated the community members’ treaty rights.”60 The Supreme Court addressed three issues on appeal, the first two relating to standing: “First, can the Behns, as individual members of an Aboriginal community, assert a breach of the duty to consult? … Second, can treaty rights be invoked by individual members of an Aboriginal community?”61 The third issue was whether it was “an abuse of process for the Behns to challenge the validity of the Authorizations now that they are being sued by Moulton after having failed to take legal action when the Authorizations were first issued even though they objected to their validity at the time.”62 The Court ultimately decided the appeal on the third issue, holding that it was an abuse of process and that the relevant defences raised by the Behns had to be struck from the pleadings on that basis. However, the Court also offered some discussion of the first two issues. On the first issue, the Court stated that in order for the Behns to “assert a breach of the duty to consult on their own,” they would, at a minimum, have had to plead that they had authorization from the FNFN to make such an assertion on behalf of the First Nation, to whom the Crown owes the

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duty to consult as a collective.63 The Court’s discussion of the second issue – whether the Behns could assert treaty rights as part of their defence – was touched on briefly in section 1 above. The Court reiterated that Aboriginal and treaty rights were held collectively, but that in some circumstances individuals may be able to assert these collectively held rights. However, the Court did not offer any extended discussion of the circumstances in which individuals may properly assert these rights, as it concluded that “a final decision on this issue of standing is not necessary in this appeal, because another issue will be determinative, that of abuse of process.”64 The Crown, though, argued in its written submissions to the Court that the circumstances in the Behn case had to be distinguished from those of regulatory prosecutions: Regulatory prosecutions involve situations in which the individual is charged, by the Crown, in relation to the purported exercise of a collective right and the rights of the collective are defined in the ensuing defence to the charge. In the present case the Appellants were not exercising their treaty rights. Rather, they were deliberately interfering with Moulton’s operations.65

The Crown also distinguished prosecution cases on the ground that the relevant rights-holding First Nations had not been parties in those cases, whereas in Behn the FNFN took part in the proceedings (as an intervener). The Crown summarized its position on the standing issues as follows: The Province does not dispute that, if the FNFN was not a party to these proceedings, the Appellants might, with proper authority, raise a treaty rights or duty to consult claim or defence, so long as that claim or defence was not, as here, an abuse of process. However, as the rights of the community would be defined by the outcome of the proceeding, the Appellants must demonstrate that they are authorized by the community to pursue a claim or defence grounded in treaty rights and in keeping with the collective’s views.66

As the province argued, this reasoning was in line with what the Court of Appeal had stated in its reasons: In the pleadings struck, the Behns do not assert a First Nations right to engage in the “blockade” activity of which Moulton complains. Instead they challenge instruments issued by the Crown and say they are invalid.

172  Ryan Beaton To succeed in these defences they require a declaration of invalidity. Such an attack on a non-Aboriginal party’s rights, on the basis of treaty or constitutional propositions, requires authorization by the collective in whom the treaty and constitutional rights inhere.67

In sum, to the extent that guidance may be drawn from the judgments of the British Columbia Court of Appeal and the Supreme Court of Canada in Behn, these judgments suggest that, while individual defendants may assert Aboriginal rights in defence to prosecutions without seeking authorization from the relevant rights-holding community, the same cannot always be said of defendants in civil cases. As a general rule, then, apart from defendants to prosecutions, individuals will normally require community authorization in order to assert an Aboriginal right or title in court. This general rule is not without exceptions. The Court of Appeal of Quebec recently released its decision in Rice v. Agence du revenu du Québec,68 in which a number of Kanien’kehá:ka owners of gas stations on the Kahnawake Reserve sought a declaratory judgment that would exempt them “from the obligation to collect various taxes upon the sale of gasoline and to remit same to the Minister of Revenue.”69 As formulated by the trial judge and taken up by the Court of Appeal, one of the questions before the court was the following: “Do the Petitioners, who are of Aboriginal origin, have the Aboriginal right to trade freely and openly, given the trading activities they engaged in before contact with Europeans?”70 The Court of Appeal explained that during oral argument at trial, the Attorney General of Canada argued that the petitioners lacked standing “since the rights they were invoking were not individual rights, but rather collective ancestral rights that belonged to the Aboriginal community at large. In this respect, a distinction was made with criminal proceedings, in which an accused status Indian could properly assert an Aboriginal right as a ground of defence.”71 The trial judge agreed, in the context of discussing the petitioners’ argument that the federal government had violated its duty to consult grounded in the honour of the Crown.72 Citing the Supreme Court’s ruling in Behn, the trial judge noted that Aboriginal rights are collective in nature, and found that the petitioners were “merchants [who] do not represent their community and nothing in their proceedings indicates that they received a mandate from the members of their group to represent them concerning the supposed violation of their Aboriginal rights.”73 He concluded that “[e]ven if there had been an obligation to consult, which there was not, it would have been with the community in general, not with a few merchants in particular.”74

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The Court of Appeal disagreed, finding that the petitioners (appellants before the Court of Appeal) did have standing to assert the Aboriginal right they claimed. The court did so on the ground that the position of the petitioners was sufficiently analogous to that of a criminal defendant: If anything, an analogy exists with respect to the right of an accused to invoke collective rights as a ground of defence to a criminal charge. These appellants are or have been called upon to apply the impugned provisions, not the other status Indians who live on the Reserve and for whom the Band Council speaks. The appellants are also the ones who may become subject to the financial consequences of non-compliance with those provisions, a factor that makes the analogy with criminal proceedings all the more apt.75

Thus, while the Court of Appeal finds that the appellants may assert Aboriginal rights even though they are not defendants to prosecution and do not have a mandate from their community, the court does so on the grounds of an analogy between the appellants and criminal defendants. In Behn, the Supreme Court similarly seemed to accept that a defence to criminal charges provides the paradigm case of an individual having the right to assert Aboriginal rights without a community mandate. However, the Supreme Court distinguished the position of the Behn appellants from that of defendants to criminal charges. The current state of the case law, then, would seem to leave it open to individuals in non-prosecution proceedings to assert Aboriginal rights even without a community mandate, if they can convince the court that their position is sufficiently analogous to that of defendants to criminal charges. In this way, Rice illustrates the uncertainty left by Behn. Indeed, like the trial judge, the Court of Appeal cites Justice LeBel’s reasons in Behn, but focuses on his reference to the “individual aspects” of at least some Aboriginal rights: So it is with the appellants – the rights they assert “have an individual aspect regardless of their collective nature”. Such aspects give them the necessary interest to enjoy standing. Indeed, as gasoline retailers they come from amongst the principal traders on the Reserve. Accordingly, they have a greater interest, juridical or otherwise, than other members of the community or the community as a whole. The Court therefore concludes that the appellants had the necessary standing to initiate their declaratory proceedings in order to determine whether the Aboriginal rights they asserted applied to them in the particular circumstances they alleged.76

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To conclude this section: the current state of the case law, then, would seem to leave it open to individuals in non-prosecution proceedings to assert Aboriginal rights even without a community mandate, if they can convince the court that their position is sufficiently analogous to that of defendants to criminal charges and that they have a particular interest in the rights being asserted. As discussed in the first part of this section, in actual criminal cases, some courts have granted stays of charges or sentences in order to balance (1) the rights of the accused to assert Aboriginal rights as grounds of defence, with (2) the interests of communities whose rights are at stake to have the existence and scope of those rights determined in a proper forum. While the option of granting such stays is not available in civil cases, other solutions may be worth contemplating in cases where courts allow individuals to assert Aboriginal rights against the wishes of the community or communities concerned (or where a mandate from the community has not been established). Courts may be receptive, for instance, to arguments that rulings in such cases should make clear that they do not constitute final determinations of the existence and scope of the rights asserted. These are developments to watch for in the coming years. The remaining sections of this chapter will focus on issues raised by the question of who may represent an Aboriginal community when its rights are asserted in court proceedings –that is, when are parties entitled to assert Aboriginal rights or title, not on their own behalf, but on behalf of the community whose rights or title are at issue? I will focus my discussion in particular on cases from British Columbia, as that is arguably the most active jurisdiction in Canada as far as Aboriginal rights and title claims are concerned. 3. General Rules on Representative Actions as Applied in Aboriginal Rights and Title Cases Individuals, if they satisfy certain criteria, may assert claims for Aboriginal rights and title in a representative capacity on behalf of Aboriginal collectives. Each province has its own rules governing representative actions, but for the purposes of Aboriginal rights and title claims, the courts in at least several provinces have embraced the guidance of the Supreme Court in Western Canadian Shopping Centres Inc. v. Dutton.77 In Western Canadian Shopping, the Court dealt with a challenge to a classaction certification under the Alberta Rules of Court. However, the guidance provided by the Court has been applied to representative actions more broadly. This section of the chapter shows how courts have applied Western Canadian Shopping in cases dealing with Aboriginal rights and title.

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In Campbell v. British Columbia (Forest and Range),78 the petitioners filed for judicial review seeking to quash British Columbia’s issuance of a timber licence to Sunshine Logging (2004) Ltd. The licences authorized Sunshine Logging to harvest Crown timber from blocks located within a territory to which the petitioners asserted Aboriginal title on behalf of the Sinixt Nation. Justice Willcock explained that the petitioners claimed to “speak for the Sinixt by authority of their de facto assumption of leadership roles, by virtue of their longstanding recognition by a community as its leaders, and pursuant to accepted practices, including their approbation by a council of elders and hereditary chief.”79 Justice Willcock noted that there was, however, “a cloud hanging over both the underlying claim they seek to advance and to protect by injunction, and their claim to speak for the Sinixt.”80 He described that cloud as follows: [T]he Indigenous group now known as the Sinixt is ancestrally related to a community once known as the Arrow Lakes Indians or the Lakes Indians, a community that is said to have assimilated with other aboriginal collectives and the non-Indigenous population or to have left Canada and to have thereby become extinct. The petitioners seek through their community activity to revive the group’s culture and traditions, and in this and other litigation to establish the status and claims of the Sinixt.81

Citing the relevant rule governing representative proceedings under the Supreme Court Civil Rules of British Columbia, Justice Willcock stated: I regard it as settled law that representative proceedings under this rule will only be sanctioned where, in the words of Davies J. in Komoyue Heritage Society at para. 35: “... the putative representative proceeding and representative plaintiff meet the four criteria established by the Supreme Court of Canada in Western Canadian Shopping.”82

The Supreme Court of Canada identified these four criteria as follows: “(1) the class is capable of clear definition; (2) there are issues of fact or law common to all class members; (3) success for one class member means success for all; and (4) the proposed representative adequately represents the interests of the class.”83  Justice Willcock noted that “[t]hese criteria have been used to analyze claims brought on behalf of First Nations in British Columbia in Komoyue Heritage Society v, British Columbia (AG), 2006 BCSC 1517, and Te Kiapilanoq v. British Columbia, 2008 BCSC 54.”84 (I discuss Komoyue in detail below.) The application of these criteria to analyze representation in Aboriginal rights and title cases was

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recently reaffirmed by the British Columbia Court of Appeal in Hwlitsum First Nation v. Canada (Attorney General), 2018 BCCA 276. Of these four criteria, the first, third, and fourth are most often the source of dispute in the context of Aboriginal rights and title claims. Campbell is a particularly useful case for anyone wanting to get an overview of how the Canadian Western Shopping criteria play out in this context, as the Crown raised objections based on all three of these criteria: The Minister relies on those criteria to identify the following objections to the representative proceedings: first, the class of rights-bearers on behalf of whom the petitioners purport to act, the Sinixt First Nation, is incapable of clear definition; second, there are conflicts between potential s. 35 rights-bearers and the petitioners, and success for some of the members of the community the petitioners say they represent may not mean success for all; and, third, the proposed representatives do not adequately represent the interests of the alleged rights-bearers.85

In sections 4, 5, and 6 below, I discuss the three criteria relied on here by the Crown. My aim is to highlight the kinds of objections that have been raised on the basis of these criteria; I do not pretend to give each an exhaustive treatment. Before moving on to a discussion of these criteria, however, let me note that there is some disagreement in the case law as to whether questions relating to claimants’ representative capacity are to be decided when the case is heard on the merits or on an interlocutory application. Justice Willcock noted that in Nemaiah Valley Indian Band86 – in which Justice Vickers held that Chief Roger Williams had standing to sue on behalf of all members of the Tsilhqot’in Nation – Justice Vickers held that the question of Chief Williams’s representative capacity should be considered after hearing evidence on the merits of the claim, that is, at trial. Justice Vickers stated: “The issue of authority to bring the action, like the issue of personal entitlement, is a question of mixed fact and law, best determined by the trial judge.”87 As noted by Justice Willcock, Justice Vickers relied on Oregon Jack Creek88 in reaching this conclusion. In Oregon Jack Creek, the court held: In my opinion, the date at which it must be shown that there was an organized society occupying the specific territory over which the plaintiffs, as descendants of the members of that society, now assert aboriginal title is the date at which sovereignty was asserted by the Europeans. The society need not have been what we now regard as a legal entity, and the descendants of that society need not, in order to have status to bring an action, prove

Representation and Standing in Aboriginal Rights and Title Litigation  177 that such a legal entity now exists. Whether the plaintiffs can establish the necessary criteria and show that they are descendants of the members of a society who in common held such aboriginal rights is a matter to be determined on evidence.89

However, as Justice Willcock goes on to point out, in many more recent cases, “standing [to assert a claim in a representative capacity] has regularly been addressed as a preliminary issue.”90 Ultimately, whether the court will decide a challenge to claimants’ standing to bring a representative claim as a preliminary matter or instead decide it after hearing evidence on the merits will turn on the specifics of the dispute over claimants’ representative status. As Justice Willcock noted with respect to the Tsilhqot’in litigation: Chief Williams was a member of the Tsilhqot’in and had the same interests as all other members, and his claims could benefit all members of the class equally. The issue of standing in that case was not whether the underlying claim was being advanced by an identifiable group or whether that group was potentially entitled to advance a claim for a collective, but the authority of the named plaintiff to act for that collective.91

Justice Vickers determined that it was necessary to hear the evidence at trial in order to properly resolve that issue. In other cases, the challenge to the claimants’ representative status might turn on whether the relevant asserted rights-holding collective, as described by the claimants, is “determinable by stated objective criteria,” or whether there exist conflicts of interest within the collective identified by the claimants, or whether the pleadings make out sufficient continuity between the asserted historic rights-holding collective and the asserted modern collective.92 In a number of cases in which such issues have formed the basis for a challenge to the claimants’ representative status, the courts have held that the issue should be resolved as a preliminary matter: for example, Campbell v. British Columbia (Forest and Range), 2011 BCSC 448; Cowichan Tribes v. Canada (Attorney General), 2016 BCSC 420; Komoyue Heritage Society v. British Columbia (Attorney General), 2006 BCSC 1517. In sum, once again the case law is still in the early stages of development on these issues. Potential litigants should be aware that questions of representative status may be addressed either as a preliminary matter or at trial, with the courts showing a preference, for the sake of “judicial economy,”93 for dealing with such questions as a preliminary matter if at all possible. I turn now to some of the specific ways in which representative status has been challenged.

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4. Identifying the Proper Aboriginal Rights- or Title-Holding Entity In many cases, band councils recognized under the Indian Act have been the parties to bring Aboriginal rights and title claims to court. The courts have recognized the legal status of bands to bring such claims on behalf of the communities they represent. This does not mean, however, that Aboriginal rights and title claims may only be brought by First Nations that are recognized under the Indian Act, nor even that the Indian Act band is necessarily the proper party to assert such a claim on behalf of a First Nation that is recognized under the Indian Act. Indeed, in Tsilhqot’in Nation, the only case thus in which the Supreme Court of Canada has granted or upheld a declaration of Aboriginal title, the courts recognized the Tsilhqot’in Nation as the proper title-holding entity. The British Columbia Supreme Court and Court of Appeal both rejected British Columbia’s argument that the proper title claimants were the six bands registered under the Indian Act whose members belonged to the Tsilhqot’in Nation. At the trial level in the Tsilhqot’in litigation, Justice Vickers addressed in detail the question of the proper title-holding entity. He stated his conclusion as follows: While band level organization may have meaning to a Canadian federal bureaucracy, it is without any meaning in the resolution of Aboriginal title and rights for Tsilhqot’in people. I conclude that the proper rights holder, whether for Aboriginal title or Aboriginal rights, is the community of Tsilhqot’in people. Tsilhqot’in people were the historic community of people sharing language, customs, traditions, historical experience, territory and resources at the time of first contact and at sovereignty assertion. The Aboriginal rights of individual Tsilhqot’in people or any other sub-group within the Tsilhqot’in Nation are derived from the collective actions, shared language, traditions and shared historical experiences of the members of the Tsilhqot’in Nation.94

A unanimous Court of Appeal upheld Justice Vickers conclusion on this point: “the evidence clearly established that the holders of Aboriginal rights within the Claim Area have traditionally defined themselves as being the collective of all Tsilhqot’in people. The Tsilhqot’in Nation, therefore, is the proper rights holder.”95 The issue was not addressed by the Supreme Court of Canada, as British Columbia seems to have dropped its argument on this point when the case reached that Court. Justice Vickers’s conclusion may fairly be taken as the most definitive statement to date on the identity of the proper rights- or title-holder in an Aboriginal right or title case.

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In representative actions, this definition of proper rights-holder will interact with the criteria from Western Canadian Shopping, discussed in section 3 above. In particular, where individual claimants (or claimants who form a sub-group of the alleged rights-holding collective) seek a declaration of Aboriginal rights or title on behalf of a collective satisfying the characterization given by Justice Vickers, they must also ensure that they define that collective such that membership is determinable by objective criteria. As Chief Justice McLachlin explained in Western Canadian Shopping: Class definition is critical because it identifies the individuals entitled to notice, entitled to relief (if relief is awarded), and bound by the judgment. It is essential, therefore, that the class be defined clearly at the outset of the litigation. The definition should state objective criteria by which members of the class can be identified. While the criteria should bear a rational relationship to the common issues asserted by all class members, the criteria should not depend on the outcome of the litigation. It is not necessary that every class member be named or known. It is necessary, however, that any particular person’s claim to membership in the class be determinable by stated, objective criteria.96

This statement was quoted and applied in the context of Aboriginal treaty rights in Komoyue.97 In Komoyue, the petitioners were seeking to challenge British Columbia’s issuance of an environmental assessment certificate with respect to a sand-and-gravel project in the vicinity of Port McNeill. As Justice Davies explained: Some or all of the land required for the development of the Project is subject to two Douglas Treaties (the “Queackar-Douglas Treaty” and the “Quakeolth-Douglas Treaty”) that were entered into in 1851 by the Hudson’s Bay Company with the “chiefs and peoples” of those two named aboriginal tribes. In addition, the respondent ’Namgis First Nation which is one of the limited partners in the Project claims at least some of the land on which the Project will be situated as part of its traditional territory.98

The petitioners in Komoyue claimed to represent the QueackarKomoyue First Nation, who they said were “the descendants of the signatories of the Queackar-Douglas Treaty.”99 One of the issues addressed in Justice Davies’s reasons is “whether the petitioners have (or should be granted) standing to bring this petition as a representative proceeding.”100 Justice Davies noted that “[b]y 1904 the Queackar peoples were amalgamated with other Kwakiutl people as one Indian Band under

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the provisions of the Indian Act … and have, since that amalgamation, been known as the Kwakiutl Indian Band.”101 The petitioners conceded the fact of this amalgamation and that they had never initiated formal de-amalgamation proceedings under the Indian Act, though they said they had contemplated them. Justice Davies noted, moreover, that “the collective membership of both the Kwakiutl Indian Band and the ’Namgis First Nation voted to ratify the Project.”102 On the facts before him, Justice Davies held that the petitioners had not provided objective criteria by which it was possible to determine which members of the Kwakiutl Indian Band belonged to the collective the petitioners claimed to represent (“the descendants of the signatories of the Queackar-Douglas Treaty”): What is also plainly obvious from the entirety of the evidence submitted by the petitioners is that while it may be theoretically possible to establish (by genealogical evidence) that a particular individual may be a descendant of a signatory of the Queackar-Douglas treaty, the interrelationship of all of the successor groups to those whom the original signatories represented will make it virtually impossible to ascertain whether that descendant is one who now supports the objectives of the petitioners or, indeed, favours the positions advanced by the Band of which he or she is a member. That is especially so given that the collective membership of both the Kwakiutl Indian Band and the ’Namgis First Nation voted to ratify the Project. … I am accordingly satisfied that the class identified by the petitioners as those entitled to assert rights under the Queackar-Douglas Treaty or other aboriginal rights relating to the lands that are the subject of the Project is for practical purposes not determinable by stated, objective criteria. The petition should therefore be dismissed as a representative proceeding.103

It seems to me there is a logical gap in Justice Davies’s reasoning here. He concedes that it might be “theoretically possible” to determine by objective criteria who is a descendant of a signatory of the QueackarDouglas Treaty. This is the collective the petitioners claim to represent, according to Justice Davies’s own reasons. Thus they are, at least theoretically according to Justice Davies, a collective whose membership can be determined by objective criteria. Justice Davies’s real objection in the passage quoted above is that “the interrelationship of all of the successor groups to those whom the original signatories represented will make it virtually impossible to ascertain whether that descendant is one who now supports the objectives of the petitioners.” In other words, Justice Davies concludes that it would be impossible to determine whether the

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petitioners actually have the mandate they need from the collective they claim to represent. Yet, if the collective can be objectively identified, it would seem open to the petitioners to seek the necessary mandate from its members and provide evidence thereof to the court. Justice Davies’s reasons don’t appear to contemplate this possibility. In any case, whether or not we accept the details of Justice Davies’s reasoning here, the judgment illustrates the ways in which the first criterion from Western Canadian Shopping may be applied in the context of representative proceedings involving assertions of Aboriginal rights. This same criterion was at issue in Cowichan Tribes v. Canada (Attorney General),104 in which the plaintiffs brought a “representative action for declarations relating to aboriginal title of lands in what is now the City of Richmond, including at Tl’uqtinus and the south shore of Lulu Island, and relating to aboriginal fishing rights in the south arm of the lower Fraser River.”105 In Cowichan, Justice Power ruled on the Crown’s application for further and better particulars relating to the identity of the represented plaintiff collective. The dispute on this point turned on the phrase “all other descendants of the Cowichan Nation” in the plaintiffs’ descriptor in the style of cause: Cowichan Tribes, Squtxulenuhw, also known as William C. Seymour Sr., Stz’uminus First Nation, Thὀlmen, also known as John Elliott, Penelakut Tribe, Suliisuluq, also known as Earl Jack, Halalt First Nation, and Sulsimutstun, also known as James Thomas, on their own behalf, and on behalf of all other descendants of the Cowichan Nation.106

British Columbia argued that “the phrase ‘all other descendants of the Cowichan Nation’ falls short of the stated objective criteria required in Western Canadian Shopping Centres by leaving undeterminable the identity of the remaining membership of the represented group.”107 Part of the problem, according to the province, was that the Cowichan Nation was the “alleged historic entity defined by the plaintiffs as the historic rightsholder to lands at Tl’uqtinus and Lulu Island at the time of Crown assertion of sovereignty,” while the province denied “the existence of a single historic Cowichan Nation.”108 In the province’s view, then, the plaintiffs were claiming to represent “all descendants” of a historic entity which the province did not recognize, making it impossible to assess the membership of the modern collective the plaintiffs claimed to represent. The plaintiffs countered that: the pled rights-holder in an aboriginal claim is “a matter to be determined primarily from the viewpoint of the Aboriginal collective itself” and need

182  Ryan Beaton not align with the structures of juridical persons such as bands. The plaintiffs said that British Columbia was repeating its argument which failed on appeal in Tsilhqot’in, namely that the aboriginal collective was not the proper rights-holder because the trial judge had found that it traditionally lacked a national governing structure (Tsilhqot’in BCCA, para. 145).109

Justice Power agreed with the province on this issue: I accept British Columbia’s description of the current definition of the plaintiff collective as a tautology that does not give the stated, objective criteria required of Western Canadian Shopping Centres and Rule 20–3. As the plaintiffs’ collective identity currently stands, an incomplete modern descriptor refers back to an incomplete historic descriptor of a nation whose existence is in dispute in these pleadings. The defendants cannot reasonably determine membership in the collective based on these descriptors even when read together, and I agree that the scope of the claim itself may therefore be undeterminable. In the context of this representative action, the defendants need to be able to determine the case to meet with respect to, among other issues, the plaintiffs’ collective identity. In these circumstances, this is not evidence but material fact.110

As a result, Justice Power ordered the plaintiffs to provide various particulars as sought by the defendants. These two cases, Komoyue and Cowichan, illustrate the ways in which courts have insisted that membership in the collective asserted by claimants must be determinable by objective criteria, that is, the ways in which courts have applied the first criterion from Western Canadian Shopping. These cases also bring into stark relief the question whether it is appropriate to have Canadian courts developing a definition of Indigenous nationhood, or of “Aboriginal peoples” under section  35, by applying the general criteria of representative actions.111 5. Continuity between the Historical and Modern Aboriginal Rights- or Title-Holding Communities Both Komoyue and Cowichan highlight a second way in which the Western Canadian Shopping criteria become entangled with the distinctive features of Aboriginal rights and title claims – namely, the requirement that there be sufficient continuity between the collective rights-holding entity that the claimants purport to represent and the historic collective whose existence and activity at the time of European contact or sovereignty assertion grounds the modern-day claim of an Aboriginal right or title.

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This requirement is at the heart of Campbell as well, the case involving the Sinixt Nation (described as “extinct” by the Crown) discussed in section 3 above. In Marshall; Bernard, Chief Justice McLachlin described the requirement of continuity as follows: The requirement of continuity in its most basic sense simply means that claimants must establish they are right holders. Modern-day claimants must establish a connection with the pre-sovereignty group upon whose practices they rely to assert title or claim to a more restricted aboriginal right. The right is based on pre-sovereignty aboriginal practices. To claim it, a modern people must show that the right is the descendant of those practices. Continuity may also be raised in this sense. To claim title, the group’s connection with the land must be shown to have been “of a central significance to their distinctive culture”: Adams, at para. 26. If the group has “maintained a substantial connection” with the land since sovereignty, this establishes the required “central significance”: Delgamuukw, per Lamer C.J., at paras. 150–51.112

This requirement of continuity may interact with different criteria from Western Canadian Shopping. For instance, at issue in both Cowichan and Campbell is the way in which the claimants articulate the continuity between the modern collective they claimed to represent and the historic collective from which the rights or title derived. According to the Court in each case, the way the claimants had articulated this continuity made it impossible to objectively determine membership in the modern collective, or at least that the way continuity was articulated contributed to the lack of objective criteria found by the court. (See the discussion of Campbell in section 3 above, and the discussion of Cowichan in section 4.) In Komoyue, Justice Davies concluded that the way in which the petitioners traced the connection between the Queackar-Komoyue First Nation (the modern collective they claimed to represent) and the signatories of the Queackar-Douglas Treaty (from whom the Queackar-Komoyue First Nation was descended, according to the petitioners) led to at least two problems fatal to the representative status of the petitioner. First, he concluded that the petitioners were unable to state objective criteria by which membership in the Queackar-Komoyue First Nation could be determined. As explained above, however, I would give a slightly different characterization of the problem Justice Davies identifies here. It seems to me his real point is that defining the Queackar-Komoyue First Nation as the descendants of the signatories of the Queackar-Douglas Treaty makes it impossible, on the particular facts of the case, for him to determine whether the petitioners have a proper mandate to represent

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the collective they describe as the Queackar-Komoyue First Nation. On this characterization of the problem, it is the fourth criterion from Western Canadian Shopping that is left unsatisfied. The second problem identified by Justice Davies is perhaps more convincing, or at least more logically sound. He notes the long-standing amalgamation of the descendants of the signatories of the Queackar-Douglas Treaty into the Kwakiutl Indian Band, together with other Kwakiutl peoples. He notes also the vote (by secret ballot) of the collective membership of the Kwakiutl Indian Band in favour of the project that the petitioners seek to challenge. He concludes that there are divergent interests within the collective that the petitioners claim to represent, or at least that he cannot rule out to the possibility of conflicting interests. Hence Justice Davies concludes that the petitioners have failed to satisfy the third criterion from Western Canadian Shopping. These three cases – Campbell, Cowichan, and Komoyue – thus illustrate some of the ways in which the criteria from Western Canadian Shopping interact with the requirement of sufficient continuity between the modern-day rights-holding collective on whose behalf a claim is advanced and the historic entity from which the claimed rights are said to derive. In a recent development involving the Sinixt Nation also at issue in Campbell, the British Columbia Court of Appeal held that Richard Lee Desautel, a member of the Lakes Tribe of the Colville Confederated Tribes in Washington State, was not foreclosed from claiming an Aboriginal right to hunt in British Columbia, even though he is not a resident or citizen of Canada.113 The Court of Appeal accepted the trial judge’s finding that the Lakes Tribe were descended from the Sinixt and that there was sufficient continuity between the pre-sovereignty hunting practices of the Sinixt and those of the Lakes Tribe to support Mr.  Desautel’s claimed Aboriginal right.114 6. Interaction between Indigenous Legal Systems and the Canadian Legal System on Issues of Representation Finally, this section addresses the ways in which courts have dealt with “rival factions,” that is, competing claims to represent the same Aboriginal collective, where at least one faction grounds its claims in Indigenous law or customs. When different groups or individuals advance competing claims to be the proper representatives of a single Aboriginal community or of Aboriginal communities with overlapping membership, courts often address the dispute through the lens of the third and fourth criteria from Western Canadian Shopping – that is, whether success for one member of the community means success for all, and whether the proposed representatives

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adequately represent the interests of the community as a whole. These issues were notably at play in Komoyue and Quinn v. Bell Pole.115 As explained in section 4 above, the petitioners in Komoyue claimed to represent the Queackar-Komoyue First Nation, who they said were “the descendants of the signatories of the Queackar-Douglas Treaty.”116 Justice Davies noted that “some of the alleged descendants of the signatories of the Queackar-Douglas Treaty are members of the Kwakiutl Indian Band and some are members of the ’Namgis First Nation, all of whom enjoy rights of membership in their respective Bands.”117 He noted also that the Crown and the project proponent had consulted with “the Kwakiutl Indian Band Council as well as the councillors of the ’Namgis First Nation concerning the development of the Project.”118 Justice Davies further noted that “the collective membership of both the Kwakiutl Indian Band and the ’Namgis First Nation voted to ratify the Project.”119 The petitioners sought various forms of relief on grounds of the alleged failure of the Crown and project proponent to consult also with the Queackar-Komoyue First Nation.120 The Kwakiutl Indian Band, through its council, opposed the relief sought by the petitioners.121 As explained in section 4 above, Justice Davies found that it would be “virtually impossible to ascertain” whether a member of the asserted Queackar-Komoyue First Nation “now supports the objectives of the petitioners or, indeed, favours the positions advanced by the Band of which he or she is a member.”122 Thus, Justice Davies concluded that the petitioners could not satisfy the third criterion – success for one member of the community meaning success for all – because “it is obvious that success for one (those who assert a right to special or additional consultation and accommodation) will not be success for others (who assert that they have already been appropriately consulted and accommodated).”123 Thus, in Justice Davies’s determination, the petitioners’ claim to represent the Queackar-Komoyue First Nation competed with the representative claims of the Kwakiutl Indian Band Council and of the ’Namgis First Nation councillors in such a way that the petitioners could not satisfy the Western Canadian Shopping criteria. In Quinn v. Bell Pole, the dispute arose out of a timber sales licence granted to Bell Lumber & Pole Canada, ULC. The licence “was for one cut block of second growth timber situated on land within the asserted traditional territory of the Sechelt Nation.”124 The plaintiffs, including David Quinn, sought an injunction to stop logging and damages for environmental harms.125 In response, British Columbia argued, among other things, that the plaintiffs lacked standing. Consultation had taken place with the Sechelt

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Indian Band as the representative of the Sechelt Nation, and the Band subsequently “entered into a Forest and Range Consultation Sharing Agreement with the Province.”126 David Quinn argued that he represented “a group of Elders of the Sechelt Nation, and [said] that they have the authority to assert aboriginal rights on behalf of all the Sechelt people.”127 Justice Fisher noted that the plaintiffs grounded their claims in “their assertion of aboriginal rights and title by the Sechelt Nation through its Elders” and that “[a]s communal rights, any claims based on aboriginal rights and title may only be brought by authorized representatives on behalf of the First Nation.”128 The province provided Justice Fisher with a letter from the Sechelt Indian Band stating in part that the plaintiffs “do not have the authority to make any representations on behalf of the Sechelt people.”129 David Quinn, for his part, “does not accept the authority of the Sechelt Indian Band to speak on behalf of the Sechelt Nation and says that the Band’s authority is limited to matters within the Band office. He says only the Elders have the authority to assert aboriginal rights as the land of the Sechelt people is held by the Elders.”130 Justice Fisher was thus faced with competing claims to represent the Sechelt Nation. For purposes of pursuing the relief they sought from the court, the plaintiffs had the burden of establishing that they were the proper representatives of the Sechelt Nation. Justice Fisher noted that they submitted a document signed by five Elders indicating, in part, that the Elders were “the sovereign leaders of the Sechelt peoples.”131 Justice Fisher found that this could not establish that the plaintiffs were properly authorized to speak on behalf of the Sechelt Nation: This document is not proper evidence, and even if it were, it does not properly establish that David Quinn as speaker for the Elders is authorized to speak on behalf of the Sechelt Nation. As I read this document, it is apparent that within the Sechelt Nation is a debate about the Elders taking back the lands. An assertion that the Council has, by acquiescence, “given up their negotiating rights to Aboriginal rights and Title of our Lands to our Elders” does not establish this to be so, particularly in light of the Sechelt Indian Band’s assertion of authority and its active role in the consultation process with the Province.132

Justice Fisher concluded that the plaintiffs lacked standing to bring their claims. While she referred133 to the four criteria from Western Canadian Shopping as the criteria the plaintiffs must satisfy to establish standing, she did not explicitly specify which criterion the plaintiffs failed to

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meet. However, her reasoning makes clear that she found the plaintiffs had failed to establish standing because the fourth criterion wasn’t satisfied – that is, without proper authorization to speak for the Sechelt Nation, they could not adequately represent the community in the eyes of the court. These two decisions, Quinn and Komoyue, provide an indication of how courts have dealt with competing claims to represent a single Aboriginal community or asserted Aboriginal communities with overlapping membership. The court in each of these cases declined the invitations by petitioners and plaintiffs to question the representative authority of existing Indian Act bands on the basis of appeals to particular histories and internal customs or laws of the communities involved. In Spookw v. Gitxsan Treaty Society, 2017 BCCA 16, the British Columbia Court of Appeal similarly upheld the representative authority of the Gitxsan Treaty Society (“GTS”), legally established under British Columbia’s Society Act, when certain Gitxsan hereditary chiefs (among other petitioners) argued that the GTS was conducting negotiations in ways that were inconsistent with traditional governance. In Spookw, however, the Court of Appeal did engage in substantive analysis of the traditional governance structures of the Gitxsan, notably concluding that “[t]he constitution of the GTS … reflects important elements of traditional governance in the Gitxsan nation.”134 It seems inevitable that Canadian courts will increasingly be drawn into such analysis of internal Indigenous governance structures in resolving competing claims to represent Aboriginal rights- or title-holding collectives. The cases reviewed in this chapter suggest, however, that the courts will generally be reluctant to analyze and adjudicate issues of governance structure, traditions, or laws internal to Indigenous communities. Conclusion The discussion above gives a sense of the complexity of the issues tied to standing and representation when Aboriginal rights are asserted in Canadian courts. I hope that the sections above provide a helpful overview of the legal landscape related to these issues. The first question to ask in relation to standing is whether the individual or group asserting an Aboriginal right is doing so as a defence to prosecution or in a way sufficiently analogous to such defence for the court to consider it as such for purposes of standing. If the answer is yes, then that individual or group has standing to assert the Aboriginal right, regardless of any mandate to speak on behalf of the rights-holding community. If the answer is no, then the individual or group must establish its representative capacity to

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speak for the community whose rights are being asserted, in accordance with the criteria of Western Canadian Shopping as applied in the Aboriginal law context. This chapter has attempted to trace the major twists and turns that adjudication of these questions is likely to take. No doubt the road ahead will be just as winding. NOTES 1 In chapter 9 of this volume, under the heading “Who to Consult,” John Borrows in part addresses this legacy of colonial impact by offering an excellent summary of the complexity that emerges when we take seriously, and pursue in good faith, the question of Indigenous identities and representation. 2 For one possible alternative to Canadian courts, consider Miles Richardson’s proposal for “a First Nation definition tribunal appointed by the Crown and involved First Nations,” as discussed in chapter 8 of this volume. For examples of the use of Indigenous and international law to bypass Canadian state law, see chapter 10 by Robert Hamilton in this volume. 3 Brent Mainprize, Arthur Mercer, Libby Edwards, and Kevin Hindle in chapter 3 of this volume highlight the important role Aboriginal rights and title have played in Indigenous economic revitalization (“the spring in the economic development”). Note, however, that a number of the interviewees quoted in chapter 4 by Robert Hamilton in this volume, while highlighting the importance of rights and title, also stressed that court victories alone do not create economic well-being. The development of autonomy in self-government was repeatedly raised as a crucial factor for greater economic health. In chapter 5 of this volume, Joshua Ben David Nichols explores in detail one sequence of litigation illustrating the difficulty of translating court victories into tangible economic benefit. 4 Perhaps most notably, Justice LeBel commented in R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 SCR 220 at para. 142: Although many of the aboriginal rights cases that have made their way to this Court began by way of summary conviction proceedings, it is clear to me that we should re-think the appropriateness of litigating aboriginal treaty, rights and title issues in the context of criminal trials. The issues that are determined in the context of these cases have little to do with the criminality of the accused’s conduct; rather, the claims would properly be the subject of civil actions for declarations. Procedural and evidentiary difficulties inherent in adjudicating aboriginal claims arise not only out of the rules of evidence, the interpretation of evidence and the impact of the relevant evidentiary burdens, but also out of the scope of appellate review of the trial judge’s findings

Representation and Standing in Aboriginal Rights and Title Litigation  189 of fact. These claims may also impact on the competing rights and interests of a number of parties who may have a right to be heard at all stages of the process. In addition, special difficulties come up when dealing with broad title and treaty rights claims that involve geographic areas extending beyond the specific sites relating to the criminal charges.

5

6

7 8 9 10 11 12

Lower courts have recently cited this passage in granting defendants stays of prosecution and of sentencing, as discussed in section 2 of this chapter. Canadian law in this area has been developed primarily by the courts. The federal and provincial governments have been largely reactive. As a result, I draw the substantive content on representation and standing from judgments issued by the courts. This description does not seem to apply equally to Aboriginal rights other than title. As defined by Canadian courts, “in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right”: R. v. Van der Peet, [1996] 2 SCR 507 at para. 46. This definition focuses more tightly on the historical fact of actions and activities performed by Indigenous people, less on the legal systems by which they governed themselves. In R. v. Pamajewon, [1996] 2 SCR 821, the Supreme Court rejected an attempt to read the definition more openly to include broad powers of self-government. This is not to say that the matter is settled once and for all. The courts today (or in the future) would perhaps be somewhat more receptive to a broader understanding of Aboriginal rights. The Supreme Court’s treatment of Aboriginal title has itself vacillated between a stricter focus on exclusive occupation as a question of historical fact (see, for example, the majority reasons in Marshall; Bernard, supra note 4) and a broader view that cognizes Indigenous legal systems as a source of Aboriginal title (see, for example, the reasons of Chief Justice Lamer in ­Delgamuukw v. British Columbia, [1997] 3 SCR 1010; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 SCR 257 [hereinafter Tsilhqot’in Nation]). Delgamuukw, supra note 6 at para. 115. [emphasis in original] Tsilhqot’in Nation, supra note 6 at para. 86. R. v. Powley, 2003 SCC 43, [2003] 2 SCR 207 at para 24. Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 SCR 227 at para. 30 (hereinafter Behn). R. v. Sappier ; R. v. Gray, 2006 SCC 54, [2006] 2 SCR 686 (hereinafter Sappier). Ibid. at para 26. The parenthesis in the above quotation is noteworthy, as it suggests individual aspects to communally held Aboriginal rights. I’ll touch on this again briefly in this section. Arguably, these individual aspects are governed solely by the internal Indigenous law of the community

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13 14

15 16

holding the Aboriginal right – in which case it would be more accurate to say that the Aboriginal right itself (as understood in Canadian law) is communal, but that the exercise of the right within the community is governed by the community’s own laws and customs. For a general discussion of this distinction between “internal” and “external” (or “generic”) aspects of Aboriginal rights and title, see Brian Slattery, “Understanding Aboriginal Rights” (1987) 66 Canadian Bar Review 727; Brian Slattery, “Making Sense of Aboriginal and Treaty Rights” (2000) 79 Canadian Bar Review 196. I think it is undoubtedly a positive development for Canadian law to recognize that Aboriginal rights and title are governed “internally” by Indigenous law. However, this development raises questions as to how far, if at all, Canadian law should reach into the Indigenous legal systems in order to state its view on (or to adjudicate) the correct interpretation of Indigenous law in any given case. Perhaps Canadian courts should simply accept expert fact evidence on Indigenous law, as they would on foreign law? The latter approach was adopted by Justice Hennessy with respect to Anishinaabe law and legal principles in Restoule v. Canada (Attorney General), 2018 ONSC 7701. At para 13, she writes: “The role of Anishinaabe law and legal principles presented at trial was part of the fact evidence into the Indigenous perspective. The Plaintiffs did not ask the court to apply Anishinaabe law. Rather, the Plaintiffs and Canada submit that the court should take respectful consideration of Anishinaabe law as part of the Anishinaabe perspective that informs the common intention analysis [of treaty interpretation].” If Canadian courts accept fact evidence on Indigenous law, this need not mean, of course, that they must treat Indigenous law like foreign law for other purposes, for example, conflicts-of-laws analysis. See also Brian Caillou, in chapter 2 of this volume for a brief discussion of the colonial imposition of law on Indigenous peoples in Canada, and of the resistance to and use of imposed law by Indigenous peoples. Sappier, supra note 11 at para. 74. On the collective nature of section 35 rights generally, see Kent McNeil, “Aboriginal Title and Indigenous Governance: Identifying the Holders of Rights and Authority,” Osgoode Legal Studies Research Paper Series, vol. 12, no. 14, 2016: 50. Behn, supra note 10 at para 35. On 8 October 2020, the Supreme Court of Canada heard oral arguments in R. v. Desautel, SCC File No. 38734, on appeal from the British Columbia Court of Appeal’s judgment in R. v. Desautel, 2019 BCCA 151. The Supreme Court has yet (as of 19 April 2021) to issue its judgment in the case. Desautel raises the specific question whether someone who is neither a resident nor citizen of Canada can hold Aboriginal rights under section 35

Representation and Standing in Aboriginal Rights and Title Litigation  191 of the Constitution Act, 1982. The Supreme Court may take the opportunity presented by Desautel to provide broader guidance as to who has standing to assert section 35 rights. 17 Behn, supra note 10 at para. 34. 18 Ibid. at para. 34. 19 Ibid. at para. 35. 20 Ibid. at para. 33. [emphasis added] 21 Ibid. at para. 30. 22 Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 at para. 37. 23 Ibid. 24 Ibid. at para. 27. 25 Ibid. at para. 39. 26 Another recently emerging tool is the possibility of suing third parties, for example, mining corporations, directly for violation of Aboriginal rights and title, without first seeking either a judicial declaration of rights and title or a treaty with the Crown. Courts in both British Columbia and Quebec have allowed such suits to proceed: Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154, leave to appeal dismissed by the SCC, 15 October 15, 2015, no. 36480; Uashaunnuat (Innus de Uashat et de Mani-Utenam) c. Compagnie minière IOC inc. (Iron Ore Company of Canada), 2014 QCCS 4403, leave to appeal dismissed, 2015 QCCA 2, leave to appeal dismissed by the SCC, October 15, 2015, no. 36332. 27 Behn, supra note 10 at para. 30. 28 R. v. Sparrow, [1990] 1 SCR 1075. As the Court explained, at para. 1083, the appellant in this case, Ronald Edward Sparrow, “was charged under s. 61(1) of the Fisheries Act [RSC 1970, c F-14] of the offence of fishing with a drift net longer than that permitted by the terms of the [Musqueam Indian] Band’s Indian food fishing licence.” 29 Van der Peet, supra note 6. Like the appellant in Sparrow, the appellant in this case, Dorothy Van der Peet, was charged under s. 61(1) of the Fisheries Act, RSC 1970, c F-14. 30 Powley, supra note 9. As the Court explained at para. 5, Steve Powley and Roddy Charles Powley “were charged with unlawfully hunting moose and knowingly possessing game hunted in contravention of the Game and Fish Act, R.S.O. 1990, c. G-1.” 31 Marshall; Bernard, supra note 4. The majority explained, at paras. 2–3, that “[i]n the Marshall case, Stephen Frederick Marshall and 34 other Mi’kmaq Indians were charged with cutting timber on Crown lands without authorization, contrary to s. 29 of the Crown Lands Act, R.S.N.S. 1989, c. 114,” while “[i]n the Bernard case, Joshua Bernard, a Mi’kmaq Indian, was charged with unlawful possession of 23 spruce logs he was hauling

192  Ryan Beaton from the cutting site to the local saw mill in contravention of s. 67(1)(c) of the Crown Lands and Forests Act, S.N.B. 1980, c. C-38.1, as amended.” 32 Sappier, supra note 11. This case arose from charges of unlawful possession or cutting of Crown timber against Dale Sappier and Clark Polchies (R. v. Sappier in the lower courts) and Darrell Joseph Gray (R. v. Gray in the lower courts). 33 R. v. Morris, 2006 SCC 59, [2006] 2 SCR 915. As the majority explained, at para. 2, “Ivan Morris and Carl Olsen, both members of the Tsartlip Band of the Saanich Nation, were charged, among other charges, under s. 27(1) (d) and (e) of British Columbia’s Wildlife Act, S.B.C. 1982, c. 57, for doing what the Tsartlip have done, as the trial judge noted, ‘from time immemorial’: hunting for food at night with the aid of illuminating devices.” 34 Marshall; Bernard, supra note 4 at para. 142. See supra note 4 for a full quotation of this paragraph. 35 McNeil, supra note 14 at 29. 36 Ibid. at 19. 37 Ibid. at 20–5. 38 Ibid. at 31. 39 R. v. Bernard, 2010 NBPC 30 at para. 12 (hereinafter Bernard). The summary of facts is drawn from these reasons of the trial judge at para. 14, except for the approximate distance from the mouth of the Saint John River to Shubenacadie, which is given in the reasons of the summary conviction appeal judge, 2016 NBQB 21 at para. 8. Note that the summary conviction appeal judge describes Mr. Bernard as a member of the “Shubenacadie Band,” not of the “Indian Brook Band” as the trial judge states. Indigenous and Northern Affairs Canada lists the First Nations official name as “SIPEKNE’KATIK” (verified 19 April 2021). The First Nation’s website greets visitors as follows: “Welcome to Sipekne’katik First Nation (Indian Brook), which in Mi’kmaq means, ‘where the wild potatoes grow.’ […] Sipekne’katik First Nation includes the communities of Indian Brook (IR #14), New Ross, Pennal, Dodd’s Lot, Wallace Hills and Grand Lake.” See http://sipeknekatik .ca (accessed 19 April 2021). 40 Bernard, supra note 39 at paras. 39–41. [emphasis in original] 41 Ibid. at para. 101. 42 Ibid. at para. 125. 43 Ibid. 44 Ibid. at para. 127. 45 Ibid. at para. 138. 46 Ibid. at para. 2. 47 Ibid. at para. 3; see supra note 4 for quotation of part of Justice LeBel’s statement. 48 R. v. Bernard, 2016 NBQB 21, at paras. 29–30, 35.

Representation and Standing in Aboriginal Rights and Title Litigation  193 49 Ibid. at paras. 38–9. 50 R. v. Bernard, 2017 NBCA 48 at para. 66. 51 R. v. Reynolds, 2016 NBQB 18 at para. 25. 52 R. v. Reynolds, 2016 NBCA 25. 53 R. v. Reynolds, 2017 NBCA 36 at para. 14. 54 Ibid. at para. 13. 55 Ibid. at para. 108. 56 In another recent case, R. v. Lamb, 2020 NBCA 22, the Court of Appeal of New Brunswick reinstated the conviction of Rosemary Lamb for hunting moose during the closed season. Ms. Lamb did not dispute the facts alleged in the charge against her. In her defence, she claimed an Aboriginal right to hunt moose. Ms. Lamb, who “is Caucasian,” had “married Gerald Augustine, an Aboriginal person and member of the Burnt Church (now Esgenoôpetitj) Mi’kmaq First Nation, in 1979” (para. 2). Ms. Lamb and Mr. Augustine later divorced, but Ms. Lamb retained her status as Indian under the Indian Act and her membership in Burnt Church. Ms. Lamb did not identify as Aboriginal and offered no clear evidence of Aboriginal ancestry (paras. 14 and 22). The Court of Appeal reinstated the trial judge’s conviction (which had been overturned on summary conviction appeal) and made the determination that Ms. Lamb’s status under the Indian Act and her First Nation membership did not, in the circumstances, establish that she belonged to an Aboriginal rights-holding collective for purposes of section 35 of the Constitution Act, 1982. 57 McNeil, supra note 14 at 29. 58 Indeed, this was the concern raised by the Crown in R. v. Reynolds, 2016 NBCA 25, in which the Attorney General sought “a stay of the precedential value of the decision of the summary conviction appeal court” (para. 4). 59 Behn, supra note 10 at para. 6. 60 Ibid. at para. 1. 61 Ibid. at para. 18. 62 Ibid. at para. 19. 63 Ibid. at paras. 30–1. 64 Ibid. at para. 36. 65 Ibid., Factum on Appeal of the Respondent Her Majesty The Queen in Right of the Province of British Columbia at para. 45. 66 Ibid. at para. 31. 67 Moulton Contracting Ltd. v. Behn, 2011 BCCA 311 at para. 39. 68 Rice v. Agence du revenu du Québec, 2016 QCCA 666 (hereinafter Rice). 69 Ibid. at para. 1. 70 Ibid. at para. 18. 71 Ibid. at para. 114.

194  Ryan Beaton 72 Leclaire v. Agence du revenu du Québec, 2013 QCCS 6083 at paras. 394–409. (This is the trial judgment under appeal in Rice v. Agence du revenu du Québec, 2016 QCCA 666.) 73 Ibid. at para. 407. 74 Ibid. 75 Rice, supra note 68 at para. 121. 76 Ibid. at para. 126. 77 Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 SCR 534 (hereinafter Western Canadian Shopping). 78 Campbell v. British Columbia (Forest and Range), 2011 BCSC 448 (hereinafter Campbell). 79 Ibid. at para. 2. 80 Ibid. 81 Ibid. 82 Ibid. at para. 130. 83 Western Canadian Shopping, supra note 77 at para. 48. 84 Campbell, supra note 78, at para. 11. 85 Ibid. at para. 131. 86 Nemaiah Valley Indian Band v. Riverside Forest Products (1999), 37 CPC (4th) 101. 87 Ibid. at para. 13. 88 Oregon Jack Creek Indian Band v. Canadian National Railway, [1989] 56 DLR (4th) 404 (BCCA), aff’d [1989] 2 SCR 1069. 89 Ibid. at 412. 90 Campbell, supra note 78 at para. 90. 91 Ibid. at para. 89. 92 Ibid. at para. 139. 93 Ibid. at para. 133. 94 Tsilhqot’in Nation, supra note 6 at paras. 469–70. 95 William v. British Columbia, 2012 BCCA 285 at para. 150. 96 Western Canadian Shopping, supra note 77 at para. 38. 97 Komoyue Heritage Society v. British Columbia (Attorney General), 2006 BCSC 1517 at para. 37 (hereinafter Komoyue). 98 Ibid. at paras. 3–4. 99 Ibid. at para. 6. 100 Ibid. at para. 9. 101 Ibid. at para. 14. 102 Ibid. at para. 41. 103 Ibid. at paras. 41, 45. 104 Cowichan Tribes v. Canada (Attorney General), 2016 BCSC 420 (hereinafter Cowichan). 105 Ibid. at para. 1.

Representation and Standing in Aboriginal Rights and Title Litigation  195 106 Ibid., “style of cause.” 107 Ibid. at para. 22. 108 Ibid. at para. 4. 109 Ibid. at para. 37. 110 Ibid. at para. 56. 111 For one possible alternative, consider Miles Richardson’s proposal for “a First Nation definition tribunal appointed by the Crown and involved First Nations” in chapter 8 of this volume. In chapter 9, under the heading “Who To Consult,” Borrows offers an excellent summary of the complexity that emerges when we take seriously, and pursue in good faith, the question of Indigenous identities and legitimate representation. 112 Marshall; Bernard, supra note 4 at para. 67. 113 R. v. Desautel, 2019 BCCA 151. Note that the Supreme Court of Canada granted leave to appeal this decision and has now heard oral arguments on appeal, reserving judgment. See supra note 16. 114 Ibid. at para. 56. 115 Quinn v. Bell Pole, 2013 BCSC 892 (hereinafter Quinn). 116 Komoyue Heritage Society v British Columbia (Attorney General), 2006 BCSC 1517 at para. 6. 117 Ibid. at para. 40. 118 Ibid. at para. 16. 119 Ibid. at para. 41. 120 Ibid. at para. 7. 121 Ibid. at para. 34. 122 Ibid. at para. 41. 123 Ibid. at para. 49. 124 Quinn, supra note 115 at para. 6. 125 Ibid. at para. 3. 126 Ibid. at para. 7. 127 Ibid. at para. 9. 128 Ibid. at paras. 16–17. 129 Ibid. at para. 24. 130 Ibid. at para. 27. 131 Ibid. at para. 28. 132 Ibid. at para. 30. 133 Ibid. at para. 19. 134 Spookw v. Gitxsan Treaty Society, 2017 BCCA 16 at para. 63.

7 Miyo Pimâtisiwin and the Politics of Ignorance: Advancing Indigenous “Good Living” through Dismantling Our Mediated Relations darcy lindberg

“Would you be happier if I told you that the perpetrators were crazy?” Historian Raul Hilberg, describing the Holocaust1 “First of all, they gave us numbers, we had no names, we were numbers, and they cut our hair. They took away our clothes, and gave us clothes … and so our identity was immediately taken away when we entered those schools.” Doris Young, describing the Elkhorn Residential School in Manitoba2

I. Re-measuring “Transitional Justice” for Indigenous Peoples With the completion of the formal work of Canada’s Truth and Reconciliation Commission (TRC) and the release of their calls to action, there has been renewed focus on reconciliation between Indigenous nations and the Canadian citizenry. “Nations themselves are narrations.”3 The stories citizens tell is an integral part of their nations’ constitutive process.4 Prior to its current turn towards “reconciliation,” the narration of Canada’s colonial history, in relation to its effect on Indigenous freedoms, was often spoken like a ghost story, told in hushed tones as though to not raise the dead. The TRC’s report – in its position alongside the Royal Commission on Aboriginal Peoples, the Report of the Aboriginal Justice Inquiry of Manitoba, as well as other inquiries – is arguably the most important of these interventions in terms of the breadth of its unflinching observation of the terror and devastation of the residential school experience, as well as the earnest considerations that many individuals and institutions have taken towards implementing its recommendations. Part of the impact of the TRC has been its voice. The TRC allowed residential school attendees5 to speak their own narratives, causing us to look at Canada’s national myth through new eyes.

Advancing Indigenous “Good Living”  197

Without undercutting its contribution to the individual healing of survivors and its educational potential in its truth-seeking, this chapter will continue a line of critique that, as a form of transitional justice, the TRC is limited to achieve as it addresses only a small, albeit vital, segment of the reparations that must take place towards residential school attendees and their communities. Its trajectory is event-focused, not structural. As the TRC finds, the residential school history is still mirrored in contemporary policies that harm Indigenous people today.6 Rather than limiting our action to the TRC, reparative justice towards Indigenous peoples, as a reconciliatory project, needs to focus on colonialism in Canada generally. As such, a “politicization of ignorance” is necessary to understand the social forces that led to the development of the residential schools. I will explore how the recognition of social ignorance in this politicized manner will allow us to identify where it is structurally held and reproduced in Canada society today. Thus this chapter does not intend to further raise the spectre of Indigenous experiences to provoke more dedications to reconciliation; rather, it seeks to continue to draw away the ghost of Canada’s national myth from the settler-colonial project at large. In considering such reconciliatory action as genuine, we must move beyond just listening, describing, and comprehending the residential school system to advance the justice that “reconciliation” purports to strive for. The traditional measures of “transitional justice” – like Canada’s ability to engage in truth-speaking events, produce reports, and give national apologies – should be resisted as the bellwethers for the success of our reconciliatory projects in Canada. Reparative and retributive measurements, such as the restoration of social, legal, cultural, and economic prosperity of Indigenous communities provides a realistic gauge that requires a shift in Canadian constitutionalism. Politicizing ignorance is a key action towards this version of reconciliation. It necessarily shifts away from a focus on the pathology of Indigenous peoples and points towards the structural ignorance embedded within Canadian constitutional and legal ordering. To do so, this chapter calls for the illumination of how relations between Indigenous peoples and societies and the non-Indigenous Canadian public are mediated, and the negative impact this mediation has on our social and legal relationships. In this manner I am using “ignorance” and “relationality” as rough goalposts on opposite ends of a spectrum, in which instruments and systems of mediation influence our relationship, or conversely ignorance, towards each other. Legal structures like the Indian Act have historically mediated lifeworld interactions between Indigenous peoples and non-Indigenous Canadians to the very often devastating detriment of Indigenous people(s). While the law has such

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negative capabilities, it also has the potential to ensure ongoing symmetrical relationality as well. Thus, this illumination is necessary to advance the good living envisioned by Indigenous societies, and by the reconciliatory rhetoric within the Canadian polity. Removing our mediated relations has significant effects on the social, legal, economic, and spiritual well-being of Indigenous societies. This chapter will move through seven brief sections. Beyond this introduction, the second section will examine the TRC’s work to identify its limits as an avenue for reparative justice, namely for its limited treatment of the systemic qualities within Canadian law and constitutionalism that led to the harms created by the schools. Drawing from this, the third section will look at how politicizing the ignorance created by Canadian colonialism at large can draw us away from event-focused justice towards systemic transformation. Key to this is the recognition of the role of law in the social reproduction of moral invisibility and indifference, which will be explored in the fourth section. The fifth section examines Canada’s Indian Act for its hegemonic position as instigator and protector of societal ignorance between Indigenous and non-Indigenous peoples in Canada. The sixth section turns towards an ethic of relationality to offer an alternative to the reproduction of ignorance within Canadian socio-legal practice. This chapter concludes with a brief example of how collapsing the mediating forces that have historically influenced legal relationships in the Yukon Territory has improved the potential for prosperous living for some Yukon First Nations. II. Resituating Lessons from Canada’s Residential Schools Canada’s residential school system was comprised of 130 schools, funded by the federal government, and largely run by churches. Running from the 1840s until 1996, the residential schools were the product of sustained policies by successive Canadian governments seeking the assimilation of Indigenous people(s) into the Canadian body politic.7 It is estimated that 150,000 Indigenous children attended residential schools.8 Justice Murray Sinclair estimates that the death rate at some residential schools was as high as 60 per cent.9 The residential schools were locations of widespread physical, sexual, mental, and spiritual abuse, as well as the location of pandemics of illness caused by preventable disease, and widespread malnutrition.10 Further, the residential school system can be linked to the loss of cultures and languages, and the root of a myriad of other factors that have caused irreparable harm to the political economy of many Indigenous communities. Of the many instruments recording the stories of residential school attendees, the TRC is the most comprehensive, due to its national scope

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and broad mandate. In doing so, it has mapped out the schools’ “legacy” of destruction on Indigenous kinship and parenting models, and their link to high rates of substance abuse, the loss of cultural practices and Indigenous languages, the continuation of inter-generational abuse and neglect, and high rates of suicide.11 The use of the term “legacy” to describe the residential school experience notes our collective incomprehension of these experiences. We have no term to accurately describe the totality of these abuses done on such a wide scale for such a long period of time, to such a large group of people. Carrying the sentiment of many others, Supreme Court of Canada Chief Justice Beverley McLachlin has stated that Canada attempted “cultural genocide” through these assimilative efforts.12 Globally, the use of truth and reconciliation commissions began four decades ago with the recent two decades seeing their widespread use as instruments for transitional justice.13 The model of Canada’s TRC is similar to other commissions internationally. Amongst other nation-states, Argentina, Afghanistan, Iraq, Nicaragua, Brazil, Colombia, Chile, the Czech Republic, Ecuador, El Salvador, Guatemala, Haiti, Kenya, Liberia, Nepal, Nigeria, Panama, Peru, Rwanda, Sierra Leone, South Africa, South Korea, Sri Lanka, Uganda, and Tunisia have all implemented a truth and reconciliation commission in some form.14 The emergence of these commissions as the favoured mechanisms for transitional justice is the product of a “global industry” that is dependent on forgiveness and reconciliation being viewed “as an important precondition” to resolve historical injustices, atrocities, and violence occurring within nation states.15 As Dene writer Glen Coulthard suggests, the use of mechanisms of transitional justice in Canada is unique, as such mechanisms are usually used in states where a “formal transition from violent history of openly authoritarian regimes to more democratic rule” has taken place.16 As Canada remains a “stable, liberal democratic settler polit[y]”, it must “ideologically manufacture such a transition by allocating the abuses of settler colonization to the dustbins of history, and/or purposely disentangle processes of reconciliation from questions of settler – coloniality.”17 This particularity can be traced to the TRC’s originating process. It is a product of legal action, the result of negotiations between residential school attendees and the federal government. The TRC was an essential term of the largest settlement of a class-action lawsuit in Canadian history, with 10,000 attendees listed as plaintiffs in the suit.18 Along with the TRC, the 2007 Indian Residential School Settlement (IRSSA) provided individual reparations to attendees in the form of “common experience” payments.19 The IRSSA also set up an independent assessment process

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where attendees could seek quasi-adjudication of abuse claims.20 Finally, as the settlement aims to promote healing, the IRSSA provided funding to various healing programs across Canada related to the residential school experience.21 Although it instigated a wealth of contemporary reconciliatory work within Canada, the litigated and individual origins of the TRC should not be dismissed. Compelled through the threat of continuing litigation (rather than from a genuine desire to repair the harms of the residential schools generally), the Canadian state’s sanctioning of the TRC has an undoubtedly political element.22 The legal and political dimensions of the TRC limit its effect as a mechanism of restorative and reparative justice. Augustine Park notes that the TRC is “a limited accountability mechanism that risks a depolitizing pathologization of survivors.”23 Coulthard contends that the TRC engages in historicism as it “address[es] the problem of settler-colonialism … as an ‘event’ and not a ‘structure.’”24 In doing so, it threatens to close the conversation around a “much broader system” of “political domination and cultural genocide of which the residential school system formed only a part of.”25 Rosemary Nagy echoes the concern that the TRC’s limited trajectory fails to address systemic oppression as she states the TRC “must contend with settler views of truth and reconciliation that resonate all too easily with the transitional justice truism of ‘dealing with the past’ in response to acute but not structural violence.”26 The TRC’s wide ranging calls to action address many of the structural elements of colonialism. Further, there have been significant moves to adopt these calls, at the very least in an aspirational context, by many Canadian legal, political, and educational institutions. However, the lack of formal structural change to Canadian legal and political systems by in large leaves reconciliation as an optional and often individual activity. Thus, both Park and Coulthard suggest a further politicization of the affective states of residential attendees as strategies for decolonization. Addressing the tendency of Canadian assimilative policy to deny, silence, or ignore Indigenous grief, Park contends that to enact a fuller version of transitional justice we must engage in the “politics of grief.”27 Rejecting the view of a “purely emotional or affective understanding of grief,” Park contends that grief “must be understood as a political resource that calls for an agenda of decolonizing structural justice.”28 Similarly, Coulthard calls for the “politicization of resentment.” He contends that the TRC diffuses the resource potential of Indigenous resentment. Coulthard states that “the emergence of reactive emotions like anger and resentment can indicate a breakdown of colonial subjugation and thus open the possibility of developing alternative subjectivities and anticolonial practices.”29 For Coulthard, pathologizing and dismissing resentment as merely the

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negative by-product of suffering must be resisted. Such a dismissal would deny the full exploration of resentment’s transformative potential within a decolonization project. What Coulthard and Park suggest is the reclamation of agency by Indigenous people to determine what time and in what form they express these emotions. They commonly suggest that, through diversion or denial of these emotions, Indigenous grief and resentment have become political. While I agree that the positioning of the TRC as an instrument of transitional justice treats the colonial experience as an event rather than structure, I caution against the specific direction of the politicization that Park and Coulthard suggest. The use of the TRC as a focal point for “reconciliation” continues to tie Canadian decolonization processes on to the backs of the individuals, societies, and nations who were the most subjugated by the Canadian colonial experience. The importance of the TRC within the “national narrative” of Canada often eclipses or forgets that the TRC first and foremost is a site of individual healing, restoration, and retribution for residential school attendees, however limited that may be. As Anishinaabe legal scholar John Borrows states, there is a collective struggle to identify our “responsibilities to those who are affected by the residential schools,”30 which, I offer, undoubtedly includes respecting the human agency of residential school attendees in their choice of the TRC as a healing process. Similarly, Nagy cautions against “dismissing the TRC outright as an instrument of the state or an exercise in futility, especially since so many survivors fought for the IRSSA.”31 III. Unsettling Emotions: The Politics of Grief, Resentment, and Ignorance In light of the limited trajectory of the TRC as addressing events rather than structures, and the fraught concern about continuing to politicize the healing journeys of residential school attendees, we must shift the mirror that the TRC provides. While the TRC’s Calls to Action can still serve as referential points towards a reconciliatory relationship, it does not require the experience of residential school attendees (and their emotions) as the furnace that fires reconciliatory processes in Canada. Our political gaze pulls outwards from the residential school experience. We must politicize ignorance. Shifting the burden of the politicization of “emotional states” towards the non-Indigenous polity provides a balance in the reconciliatory process. It is engaging in, as Paulette Regan reminds us, a process of “unsettling the settler within.”32 In light of the deep concern I have shared that “resourcing” the affective state of Indigenous people for social change, the politicization of the emotive and

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affective states of non-Indigenous people should be the priority. We need to discuss a “politics of ignorance” in Canada. At this point I should provide two cautions before I proceed. First, what I am suggesting does not preclude the historic and contemporary presence of explicit malice, prejudice, racism, oppression, and manipulation in Canada towards Indigenous peoples. By and large, these have generated the type of violence and oppression practised in the residential schools. However, for the purposes of this chapter, I am concerned with the locations of implicit oppression and aggression, not regularly caught by our ordinary and formal practices of seeking justice and fairness. It is easy to recognize and call out bigoted or prejudiced practices. What is more elusive is recognizing and addressing systemic and structural ignorance, as it often resides in hidden or sheltered parts of our relational structures and ordering. The second point of caution is my use of the word ignorance. My use of the word is not to charge or implicate individuals, classes, nations, or communities. My focus here is abstracted from the individual or particular. While I am cognizant that there is a state of ignorance that is malicious and intended, in this context I am concerned with ignorance as a state of being. Like happiness or grief, we perform or embody ignorance at various times. We are all ignorant in this sense. Another way of thinking of this type of ignorance is harmful unknowing. Removing its pejorative connotation as a fixed state allows us to see transformative possibilities away from its production. In doing so, we are able to see how structural ignorance allows for a normative, personal ignorance to persist. In terms of politicizing ignorance, post-apartheid writing in South Africa provides a firm starting ground. In her study of the structures of racial hierarchy in apartheid South Africa, Melissa Steyn describes a “politics of ignorance” as a latent characteristic in South African apartheid society. During the apartheid period, Steyn contends that “white” South Africans33 engaged in an ignorance contract. Observing South Africa’s truth and reconciliation experience, she notes a willful blindness to the moral dilemmas that racial discrimination should have engaged.34 She notes the existence of an “ignorance contract – the tacit agreement to entertain ignorance – lies at the heart of a society structured in racial hierarchy.”35 Steyn calls us to view ignorance as a positivistic presence – that is, its presence is not simply the product of the absence of knowledge. Ignorance “must be studied as a social accomplishment, not just as a failure of individual knowledge acquisition.”36 Doing so allows us to view ignorance as a unit in our normative communication practices, and to trace its reproduction. Steyn notes its connection to domination as “ignorance and domination are often interrelated” in that “the

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management of ignorance … is a technique of control.”37 Assertive ignorance is important to the domination of one class over another. IV. Social Production of Ignorance and Residential Schools The residential school experience provides a mirror into the identification of the social production of ignorance. This allows us to see the invisible structures that allowed for its construction and longevity. Further, it makes these structures contemporarily visible. We can view how they continue to thrive. The work of sociologist Zygmunt Bauman provides key insights into how we can view areas where ignorance is reproduced. In “Modernity and the Holocaust,” Bauman points to two ways the Holocaust can be mischaracterized. The first is to view it as an event localized in Jewish history. This mischaracterization relieves society from making a broader interrogation of its structural causes. The second is to view the Holocaust as modernity’s failure to prevent German societal collapse into primitive aggression and violence. Bauman holds the field of sociology to task for its failure to view the Holocaust as a product of modernity, as “a rare, yet significant and reliable, test of the hidden possibilities of modern society.”38 Bauman’s contention that the Holocaust is one of the many potential products of modernity has important implications when we view the Canadian response to residential schools. Bauman notes that the search for a common element of delinquency or pathology of madness within the perpetrators of the horrors of the holocaust has turned up futile. Although ideologically rooted, the vast majority of Holocaust atrocities were committed by rational actors. To Bauman, elements significant to the “success” of the Holocaust are common tendencies of modernity: it relied on the efficiency of organization, modes of production, and the mediation of actions. As Bauman states, “Modern civilization was not the Holocaust’s sufficient condition; it was, however, certainly its most necessary condition” as “[w]ithout it, the Holocaust would be unthinkable.”39 Bauman explains how the orchestration of the Holocaust was a master class in the social production of moral indifference. This meant “overcoming … the animal pity by which all normal men are affected in the presence of physical suffering.”40 Key to this is modernity’s increasing moralization of organizational discipline as a positive attribute. In this sense, the organizers of the Holocaust replaced or overcame a “human morality” with “organizational morality.” Another key tendency of the Holocaust was the social production of moral invisibility. This was achieved through the separation of perpetrators from situations where human morality is engaged. The multiple examples of this are terrible. One of

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the more notorious examples is an execution process that required its orchestrator to simply deliver a sack of chemicals into a small compartment atop a building they never have to enter, preventing them from having to interact with their victims. As Bauman explains, “[T]he struggle over moral issues never takes place, as the moral aspects of actions are not immediately obvious or are deliberately prevented from discovery or discussion.”41 Another important concept is the mediation of action.42 Related to the production of moral invisibility and indifference, mediation of action occurs when an individual’s action is mediated through someone else. As Bauman explains, the further the physical and psychic distance between the action and its consequences, the further the suspension of human morality. Mediated action is a fundamental characteristic of modern society. The implications of the mediation of our actions are implicit but astounding. Quick thought experiments are instructive when we think about how mediated our lives are. Reflect on your actions today and think about how many were mediated. This includes the tea you may have drank (unless you bought the leaves straight from their producer), the chicken you may have had for lunch (unless you shook hands directly with farmer making the deal, and butchered the chicken yourself), or the text messages you receive (unless you procured the thousands of components to your smartphone directly from each producer). The mediating person is necessary in modern life. We all mediate each other, and we are all lost without this mediation. The consequences of this mean an age of unprecedented moral invisibility that is only increasing. Commodity fetishization is underpinned by mediated action, as our labour is mediated through market exchange, causing us to view the exchange as non-relational and purely economic. The mediated person creates large emotional contradictions where we can dually feel deep grief and empathy for the victims in a factory fire in Bangladesh while implicitly gaining satisfaction of buying clothing at abnormally low costs.43 It allows us to demand social protection from our governments (like the Canadian Pension Plan benefits), while simultaneously maintaining moral positions against resource development and wars.44 The mediation that occurs within our lifeworlds keeps the two emotional and spiritual states from relating; thus our actions (informed by socially reproduced ignorance) go unchecked. All of these are signifiers of social ignorance. Steyn’s concept of an “ignorance contract” allows us to view ignorance as a positivistic element that can be traced in our societal practices and institutions. Using Bauman’s exploration of moral indifference, moral invisibility, and mediation of action, we can begin to locate areas where structural ignorance is

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produced. In doing so, we can come to the same conclusions regarding the residential schools as Bauman does regarding the Holocaust. We cannot consider residential schools as merely a “local” experience to Indigenous people nor as a failure of modernity to prevent them. We need to implicate modernity in the length and breadth of the residential school system. It is beyond the scope of this chapter to explore the multitude of situations where moral indifference and moral invisibility are produced in contemporary Canadian society. However, within the Canadian settler-colonial context, reframing ignorance as a social achievement allows us to view the instruments that lead to its reproduction. We can also view its social reproduction as a strategic move historically employed by the Canadian state. For example, ignorance has been strategically reproduced in the Canadian education systems (through the omission of fundamental teachings about residential schools, and Indigenous issues generally), child welfare systems (through historical omission of education on Indigenous cultural practices related to parenting and kinship), legal systems (through the failure to acknowledge Indigenous legal orders), and justice systems (through the failure to adopt Indigenous forms of social ordering and justice). As Brian Calliou notes in chapter 2 of this volume, the failure to recognize Indigenous legal orders provided the “pseudo-justifications” for the imposition of the common and civil laws upon Indigenous jurisdictions. V. The Hegemony of Ignorance: Canada’s Indian Act When we think in practical terms of how we can counteract the social reproduction of ignorance and employ an ethic of relationality, Canada’s Indian Act looms large between healthy non-Indigenous and Indigenous relations. Structural ignorance is manifested in the Indian Act. The act embodies the historical governmental domination of the human agency of Indigenous peoples that still wields its heavy weight today.45 With its authority and responsibility resting solely within the federal government, the Indian Act has served as a body of total regulation of Indigenous lives since its initial enactment.46 For “status Indians,” it regulates areas of education, health care, child welfare services, governance, community membership, among other areas. If not its longevity, one of the Indian Act’s defining characteristics has been its malleability. It has served successive Canadian governments – either Conservative or Liberal – in their respective political motives towards Indigenous people. It’s long line of historical amendments each fulfilled the political and racial ideals of the governments at the time: in 1885 prohibiting Indigenous ceremonies

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like potlaches, sweat lodges, and sun dances; in 1905 providing the power to remove Indigenous people from reserves near towns with 8,000 people or more; in 1911 relocating entire reserves away from settlements; in 1914 requiring Indigenous people to get permission from Indian agents to appear in public in traditional dress; in 1918 allowing the government to lease out uncultivated reserve land for farming or pasture; and in 1927 prohibiting the solicitation of funds for legal claims without a special licence.47 The Indian Act remains an enigmatic contradiction in terms of governmentality, as it has served as both the totality of governance over the lives of status Indians while at the same time employing policies intended to legislate status Indians “out of existence” and make the act temporary.48 It has erroneously categorized a collectivity of peoples and cultures as diverse as continental Europe as one, and in doing so has created new classes of people (status-Indians and non-status Indians) and the growth of new cultures. A particular pernicious example of the act’s absurdity is that the laws that allowed the forcible removal of children from Indigenous communities remain written within the sections of the Indian Act today.49 Despite its ideological incoherence (in that it carries on despite being based on assimilative goals that are no longer socially valid), the Indian Act still holds potency within the lives of Indigenous people. The thinking of Antonio Gramsci on cultural hegemony helps describe the dominating force of the Indian Act on the social, constitutive, and legal lives of Indigenous peoples. In addition to economic and political control, the ruling class also relies on its ability to project its world view upon subordinate classes to maintain its hegemony. Gramsci describes this as a “common-sense” view of the world, as the dominant world view becomes the normative practice of a society without deliberation, and is viewed as a natural product of the world. To do so the dominant class must show “leadership.” Or as Gramsci describes it: “[T]he supremacy of a social group manifests itself in two ways, as ‘domination’ and as ‘intellectual and moral leadership’... it subsequently becomes dominant when it exercises power, but even if it holds it firmly in its grasp, it must continue to ‘lead’ as well.”50 For Gramsci such leadership “mean[s] the formation and organization of consent,” as the hegemony requires the consent of its subordinates to continue.51 Thus, the common sense is not a fixed state. As John Fiske states, “[C]onsent must be constantly won and re-won, for people’s material social experience constantly reminds them of the disadvantages of subordination and thus poses a threat to the dominant class.”52 Douglas Litowitz states, “In a hegemonic regime, an unjust social arrangement is

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internalized and endlessly reinforced in schools, churches, institutions, scholarly exchanges, museums and popular culture.” 53 As a hegemonic instrument, the Indian Act preserves latent myth-truths,54 of which the dominant class in Canadian society relies upon to maintain its “common sense.” Such myth-truths the Indian Act relies on (and reproduces) include the falsities that (1) Indigenous people are all “Indians” (and represent one homogenous culture), (2) Indigenous people agreed to Indian Act subjugation by entering into treaties, (3) Indigenous people receive a greater amount of social protection in relation to non-Indigenous Canadians, (4) treaty obligations are historical oddities and contemporarily irrelevant, (5) Indigenous people were unable to conceptualize “land ownership” and thus have no rights to land based on pre-sovereignty occupation, and (6) many of the social problems on reserves are due to lack of accountability and transparency.55 As a hegemonic instrument, the Indian Act allows these myth-truths to go generally unchallenged by the greater Canadian public. And here are the two faces of the Indian Act. Its hegemonic status means that the status Indian is constantly aware of the act’s omnipresence in their systematic and lifeworld.56 To the non-status person, the Indian Act serves as a dark curtain between them and the life of the Indigenous person. It is a dark space where the Indigenous person persists in and gets lost from view, yet somehow survives. This allows the Indigenous person to become and remain the “Other.” Roger Epp describes his experience with Indigenous people growing up in Alberta: “I have lived most of my life on Treaty 6 land. I grew up in a small town in the southeast corner of that vast tract of 120,000 square miles, though I would have no significant contact with Aboriginal people before brief stints in young adulthood as a daily newspaper journalist and a government bureaucrat.”57 The silence leaves the non-Indigenous person to imagine the “Other” – filling the space where the real should be with the imaginary. The “Imaginary Indian” is created.58 The Imaginary Indian is made of the stuff of myth-truths as the hegemonic “common sense” fills in the blank space within the consciousness of the person who never has a necessity or a want to search behind the Indian Act’s veil. Through its production of structural ignorance, the Indian Act is a hegemonic mechanism working towards the oppression, albeit in a different form, of the non-Indigenous person as well. It removes the necessity to make allowances for Indigenous world views and practices to inform Canadian social institutions. It has allowed the creation of a moral vacuum towards these institutional needs of Indigenous communities, as individuals and organizations subscribe to the organizational morality that the state-centred government has asked of them. It is the ultimate

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mediating actor, historically preventing Indigenous and non-Indigenous communities their full agency in relating to each other. Any widespread project of transitional justice to settler-colonialism is bound to fail if the Indian Act remains, as it continues to act as the ultimate anathema to potential cultures of Indigenous-settler relationality. VI. Becoming Treaty People: Unmediated Relations and Miyo Pimâtisiwin59 In 1930, gold prospectors discovered deposits of radium on the eastern shore of the Great Bear Lake in the Northwest Territories. Located within the traditional territory of the Sahtu Dene (“the people of the water”), the discovery prompted the development of several mines in the area, as radium was highly valuable due to its use in cancer treatments. The area of the land, known to the Dene as Sombe Ke’, became the settlement known as Port Radium. Twelve years later, after most of the mines closed because of decreasing productivity, one mine was reopened for its uranium deposits. Under an order from the United States during the Second World War, the men of Sahtu Dene were hired by the Canadian government as “coolies” to carry ore concentrates in cloth bags out of the mine. The miners were exposed to high amounts of radiation, yet were never told of the danger. The uranium mined by the Sahtu Dene was shipped directly to New York and was used as part of the Manhattan Project, which was the secret project developing the atomic bomb. The project was successful as the Dene-mined uranium was used in the atomic bombings of Hiroshima and Nagasaki in August 1945.60 The miners were the embodiment of the mediating actor. They did not know about the harmful effects of the mineral they pulled out of the ground every day, nor did they know about its “usefulness” in the machinations of the war. It was only years afterwards, when many of the miners started to fall sick and succumb to cancers, that the community sought answers to their treatment in the uranium mines. Many of the remaining wives in the “village of widows” (a name brought on due to a large number of the men working in the mines who passed away prematurely) have brought claims against the Canadian government concerning this treatment. This story does not serve this chapter as an example of Indigenous exploitation. It is here as a story of forgiveness and redemption, relatedness, and understanding. Upon learning that the mineral from their traditional territory had been used in the atomic bombs that fell on Hiroshima and Nagasaki, the Sahtu Dene were distraught. They took actions to make amends for their role in this mass atrocity. In 1998, a

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delegation of Sahtu Dene attended a peace conference in Hiroshima, to make contact with survivors of the bombing, and to begin to reconcile their role in this unimaginable harm.61 What we see in this experience of the Sahtu Dene is an acknowledgment of their role in a tragedy, and active steps taken to remove the mediation between them and the tragedy. Acknowledging the relations of their actions to the bombing of Hiroshima and Nagasaki, the redemptive steps of the Sahtu Dene were direct action against the production of moral indifference and moral invisibility. The Sahtu Dene employed an oppositional ethic to moral indifference, one we can describe as relationality. As an ethic, relationality is a common practice of many Indigenous communities. To the Cree this is miyo wicehtowin (to have good relations),62 to the Sioux, mitakuye oyasin (all my relations), and to the Anishnaabek, nikanisitook (all my relatives in life).63 A second story relating to removing the mediation of our actions is a story we tell about the nê hiyaw (Plains Cree) chief Maskepetoon.64 He was known for his ability to procure peace between the Cree and the Blackfoot – two nations whose relationship was often precarious. At one point, his father was killed by a Blackfoot man. Not too long after, when the Cree and Blackfoot were making a treaty with each other near Wetaskiwin, Alberta,65 Maskepetoon learned that his father’s killer was amongst the Blackfoot group. As part of the process, he called for this man to be presented before him. While all expected Maskepetoon to take revenge through violence, he exacted revenge in a much different way. Presenting his father’s clothes and his father’s horse to the man, Maskepetoon instead adopted him as his new father. This reminds us that, though grief and resentment may be powerful transformative forces, transformation relies on the many ways we use it. It also speaks to how Plains Cree law calls for a greater relationality, even with those things and peoples that threaten us. By adopting a new father, Maskepetoon was addressing ignorance by creating a literal family relationship. The ethic of relationality is not limited to relating to each other as individuals and communities, but may include the ecological world. Jurist James Youngblood (Sakej) Henderson abstracts on this, calling it an “autochthonic ecology”: These autochthonic ecologies taught our peoples that everything is interrelated and all life forms and forces are in a process of flux or circular interaction. The belief that the ecological order is connected through relationships with the keepers of life is the premise of our worldviews. By knowing our relationships with the natural order, our shared relationships can sustain harmony and balance. Coming to know is not located outside

210  Darcy Lindberg one’s self but is founded upon the interconnectedness and interdependent relationship one has with the sources of life.66

Similarly, jurist Costas Douzinas suggests the proper response to “modernity” is a movement towards a “communism of the heart.” Douzinas states: Our essence is our becoming in the infinity of encounters with others, encounters that compel us to keep re-interpreting what the world is for us, and who we are in the world. In this sense, identity is constituted in social existence as a set of infinite, non-totalisable encounters with others who themselves are different worlds.67

Finally, Epp, inflecting his thought with Plains Cree principles on good relationships, describes this ethic in a settler-Indigenous context. Understanding “we are all treaty people,” he calls for the recognition of the “common ground for treaty peoples whose inheritance is filled with mixed blessings, and includes obligations of memory and relationship on all sides” as it can “nourish tentative steps in the ‘art and practice of neighbourliness,’ in miyowicehtowin (good relations) and witaskewin (living together on the land).”68 A turn towards relationality does not discount other important aspects of the reparative project in the wake of the settler-colonial experience. Other reparative goals, including monetary reparations,69 inquiries into the high level of violence experienced by Canadian-Indigenous women and girls,70 the repatriation of sacred items,71 the return of territorial lands,72 and the recognition of Indigenous legal traditions,73 are highly important aspects to be addressed in the overall decolonization project. However, I suggest that the dismantling of structural ignorance through an ethic of relationality may be a necessary precondition for these to take place. Further, it must occur in lockstep with normative ignorance between Indigenous and non-Indigenous peoples. In this sense, we can recognize that the transitional justice project in Canada is not solely an Indigenous project (that only interacts with federal and provincial governments) involving the voluntary participation of non-Indigenous peoples, but a shared project that calls upon Canada’s non-Indigenous citizenry. VII. Removing Ignorance for Prosperous Living In the pages above, I have explored the use of the TRC as an instrument of transitional justice in the wake of the settler-colonial project

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experienced by Indigenous people. Though I caution against losing sight of the large positive movements towards individual healing and calls for structural changes, I have highlighted common concerns of the TRC’s performance of transitional justice. Sharing the belief that transitional justice should be focused on “unsettling the settler within” through a wider projection towards latent settler-colonial structures, I have explored ways we can politicize the “settler ignorance.” In doing so, we can view where ignorance is produced and is structured. Finally, using the Sahtu Dene and nêhiyaw experiences as examples, I have explored how a turn towards relationality employs ways to tangibly work against the social production of moral invisibility and moral indifference. Using the TRC as a starting point, this chapter has engaged in an exploration of the usefulness of transitional justice as an instrument to dismantle the settler-colonial project’s numerous harmful effects on Indigenous people. A focus solely on Indigenous experiences will not be fully effective until we can develop similar instruments of justice that focus on settler-colonialism at large as the subject of healing. Politicizing ignorance gives us the tools to identify the social production of moral indifference and invisibility. A turn to relationality removes the mediated actor and, by connection, the production of ignorance. The Indian Act, in its dual hegemonic faces – the monolithic legislator to Indigenous people and the supreme veil to the non-Indigenous – is bound to prevent any movement towards widespread justice and reconciliation of our collective settler-colonial history. Removing structures of ignorance, especially when they are embedded within legal or constitutional structures, is not as simple as rewriting law, policy, regulations, or even constitutions. Such structural action must be supported congruently with normative action. As John Borrows notes in chapter 9 of this volume, along with “enhancing Indigenous authority and responsibility” through legislation, normative acts like centring Indigenous well-being in the creation of economic directives is just as important in developing and maintaining good relations. Miles Richardson notes further in chapter 8 of this volume that one of the straightest routes to the removal of structures of ignorance is to provide Indigenous nations with the space and authority to determine their own nationhood. Further, unilateral restructuring, without Indigenous peoples authoring such changes, may be simply restating hegemonic structures. The action around various “attempts” at the transformation of the Indian Act is instructive. With its White Paper (formally known as the “Statement of the Government of Canada on Indian Policy”) in 1969, the Pierre Trudeau government attempted to dismantle the protections of the

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political and legal distinctions Indigenous people had under the Indian Act. The widespread opposition by many First Nation communities to the White Paper displays the complexities in dealing with Indian Act reformation.74 Fifty-two years later, this unilateral attempt at blanket assimilation still sits like an open wound on the political landscape of Indigenous-government relations. Finally, the Indian Act remains “deeply interwoven into the fabric of First Nations over seven generations” and thus, in all its faults, is relied upon by First Nation communities in the absence of viable alternatives that facilitate the relationship between First Nations and the federal government.75 For its hegemonic position within Canadian and Indigenous citizenries, the Indian Act is an obvious target towards the politicization of ignorance as a decolonizing strategy. However, there are other areas where structural ignorance implicitly sits within our legal ordering that requires careful examination and explicit moves towards unmediating our interactions. For example, modern legal dealings continue to be hampered by the ghosts of structural, systemic, and normative ignorance in the relations between Indigenous peoples and provincial and territorial governments. The Final Agreements between eleven of the fourteen Yukon First Nations and the Yukon and federal governments, and the subsequent interpretation of the terms of these agreements, has provided numerous examples of the potential and challenges in renewing closer legal relationships.76 One example is found in the efforts to make the common-law land tenure systems compatible with Indigenous interests in lands in the territory. As per the Final Agreements, lands retained by Yukon First Nations are categorized into three types of tenure: (1) fee simple lands, whose title was previously subject to a Crown grant and registered within the Yukon Land Titles Registry, (2) Category A lands, and (3) Category B lands.77 Category A and Category B lands are unique as their property interests have not arisen through a Crown grant, as opposed to fee simple lands. Thus their form of land tenure is sui generis in nature. This provides a unique challenge in bringing Category A and Category B lands into the marketplace. In 2013, the Kwanlin Dun First Nation (KDFN), some of whose Category A and Category B lands were in the urban areas of Whitehorse, were seeking a way to register these lands within the Yukon land titles system without transferring the lands to a fee simple title (and thus losing the rights that are incremental to potential Aboriginal rights upon these lands).78 This was not only a practical challenge but had and continues to have political dimensions as well, as it is not politically attractive to be the leader who surrenders a nation’s rights and title to the Crown.79 To make these lands more marketable by

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providing certainty to potential leaseholders, KDFN wished to register these lands within the Yukon Land Titles Registry. The Yukon government faced a similar practical challenge, as under the old Land Titles Act of the Yukon, Category A and Category B lands were barred from registration within the Yukon Land Titles Registry, due to the lack of origins as a property interest through a Crown grant. In addressing this, structural, systemic, and normative ignorance needed to be overcome. The structural ignorance – the inability for the Lands Title Act to relate to Indigenous land tenure – had instrumental solutions, namely the territorial government had the full ability to amend the Land Titles Act to make Category A and Category B land tenure cognizable. This also made visible an instance of how asymmetrical power can uphold systemic ignorance – as the broad interpretation of section 5.9.1 of the Kwanlin Dun First Nation Final Agreement that allowed for such registration that KDFN advanced was tempered by the Yukon government’s more restrictive approach. Such an approach was in line with a relational tact the Yukon government had taken in interpreting the Final Agreements in other instances.80 In such scenarios, there may also be an implicit, normative ignorance at play, created by the lack of normative practice and trust in the legal relationship between the Crown and Yukon First Nations. For example, it was raised that there were concerns over respective First Nation governments’ powers to enact their own legislation that could affect interests charged on the registered titles of their land, ultimately affecting the confidence in the Land Titles Registry as a whole. It is not difficult to understand from a perspective of a Yukon First Nation that such concerns are ghost stories, bred from a void of legal relationality structured by over a century of legal asymmetry in the Yukon territory. The marketization of Yukon First Nations’ lands would require public trust; any move that would affect the certainty and stability of their lands within the Land Titles Registry would be an unrecoverable breach of trust that undoubtedly would destruct any future dealings with the Yukon government and the marketable public. In this instance, the barrier of structural and normative ignorance was overcome through the steady, trusting dialogue between KDFN and the Yukon government. Legislative changes in 2015 allowed First Nations to register Category A and Category B lands within the Land Titles Registry, while allowing them to retain Aboriginal rights and title on the registered lands.81 In my observations of this process, I noted that such ignorance was not personal or individual. The people representing Yukon, Canadian, and the First Nations governments all lived and interacted with each other regularly. It was an ignorance posited through the social

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force of past mediated relations, reinforced by the asymmetrical powers of the Canadian and territorial government in relation to Yukon First Nations. As this specific legal relationship forges trust through the gains of normative action over time, a greater conception of living on the land together is realized. VIII. Conclusion: Upward over the Mountain The example from the Yukon that I have provided above is just one example of how addressing socially reproduced ignorance can serve our communities through prosperous living. While this example is economic, such potential exists within the social, legal, cultural, and spiritual fields of Indigenous peoples’ lives. Ignorance is well entrenched in our legal and constitutional ordering in Canada. With respect to Indigenous lifeworlds, section 91(24) of the Canadian Constitution constitutionalizes the foundation for such ignorance to persist. While it can feel vast and perhaps negative, politicizing ignorance in this manner is positive and hopeful – it correctly identifies that such movement away from “harmful unknowing” is needed in many aspects of our lives. While it is needed in our legislative and constitutional areas, our movements towards relationality in our educational, social, economic, spiritual, and cultural work provides us with greater relations and advances fuller versions of freedom and prosperity for Indigenous peoples. Ekosi. NOTES 1 Zygmunt Bauman, Modernity and the Holocaust (Ithaca, NY: Cornell University Press, 1989) at 83. 2 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa: TRCC, 2015) at 145, http://publications .gc.ca/collections/collection_2015/trc/IR4-7-2015-eng.pdf. 3 Edward Said, Culture and Imperialism (New York: Vintage Books, 1994) at xiii. 4 See Eric Adams, “Canadian Constitutional Identities” (2015) 38:2 Dalhousie Law Journal at 3; J. Edward Chamberlin, If This Is Your Land, Where Are Your Stories? Finding Common Ground (Toronto: Alfred A. Knopf Canada, 2003). 5 I use the term “attendees” here, not to sanitize the experience of residential school attendees but to recognize there are attendees who passed away during the residential school experience or afterwards, whose stories (or their absence) make up a large part of the collective story caught by the TRC.

Advancing Indigenous “Good Living”  215 To ensure I am describing all attendees, I will refrain from using the word “survivor.” 6 Truth and Reconciliation Commission of Canada, supra note 2 at 135. 7 See, generally, John Milloy, A National Crime (Winnipeg: University of ­Manitoba Press, 1999). 8 Augustine Park, “Settler Colonialism and the Politics of Grief: Theorising a Decolonising Transitional Justice for Indian Residential Schools” (2015) 16:3 Human Rights Review 273 at 275. 9 Connie Walker, “New Documents May Shed Light on Residential School Deaths,” CBC News, 7 January 2014, https://www.cbc.ca/news/indigenous /new-documents-may-shed-light-on-residential-school-deaths-1.2487015. 10 Park, supra note 8 at 275. 11 Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The Legacy: The Final Report of the Truth and Reconciliation Commission of Canada, vol. 5 (Montreal: McGill-Queen’s University Press, 2015). 12 APTN National News, “Canada’s Top Judge Says Country Committed ‘Cultural Genocide’ against Indigenous Peoples,” 29 May 2015, http://aptn.ca /news/2015/05/29/canadas-top-judge-says-country-committed-cultural -genocide-Indigenous-peoples/. Although there is debate on whether the residential schools were “genocide” according to legal definitions, this debate obscures the point that the residential school project should be thought about as a mass atrocity. 13 Michal Ben-Josef Hirsch, “Ideational change and the emergence of the international norm of truth and reconciliation commission” (2014) 20:3 European Journal of International Relations 810 at 811. 14 Ibid., and Michal Ben-Josef Hirsch, Megan MacKenzie, and Mohamed Sesay, “Measuring the Impacts of Truth and Reconciliation Commissions: Placing the Global ‘Success’ of TRCs in Local Perspective” (2012) 47:3 Cooperation and Conflict 386. 15 Glen Coulthard, Red Skins, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2015) at 106. 16 Ibid. 17 Ibid. at 108. 18 Park, supra note 8 at 275. 19 Attendees received $10,000 for the first year of attendance at a residential school, and $3,000 for each subsequent year. See Park, supra, note 8 at 275. 20 Park, supra note 8 at 275. 21 Ibid. at 275–6. 22 As evidenced in 2008 when then prime minister Stephen Harper was able to deliver an apology to residential school attendees in one season, and claim that Canada had no history of colonialism in the next. 23 Park, supra note 8 at 276.

216  Darcy Lindberg 24 Coulthard, supra note 15 at 106. 25 Ibid. 26 R.L. Nagy, “The Scope and Bounds of Transitional Justice and the Canadian Truth and Reconciliation Commission” (2012) 7:1 International Journal of Transitional Justice 1 at 3. 27 Park, supra note 8 at 274. 28 Ibid. 29 Coulthard, supra note 15 at 115. 30 John Borrows, “Residential Schools, Respect, and Responsibilities for Past Harms” (2014) 64:4 University of Toronto Law Journal 486 at 487. 31 Nagy, supra note 26 at 53. 32 See, generally, Paulette Regan, Unsettling the Settler Within: Indian Residential Schools, Truth Telling, and Reconciliation in Canada (Vancouver: UBC Press, 2010). 33 I only use the term “white” for consistency with Steyn’s writing. She notes in her study that she uses it in the manner the participants in her study use it, in its apartheid context. 34 Mellisa Steyn, “The Ignorance Contract: Recollections of Apartheid Childhoods and the Construction of Epistemologies of Ignorance” (2015) 19:1 Identities: Global Studies in Culture and Power 8. 35 Ibid. at 8. 36 Ibid. at 10. 37 Ibid. 38 Bauman, supra note 1 at 12. 39 Ibid. at 13. 40 Bauman uses Hannah Arendt’s well known words here. Ibid. at 20. 41 Ibid. at 24. 42 Ibid. 43 David Harvey, Seventeen Contradictions and the End of Capitalism (New York: Oxford University Press, 2014) at 249–50. 44 Amy MacPherson, “Your CPP Is Funding War Crimes” (2015), Huffington Post, http://www.huffingtonpost.ca/amy-macpherson/cpp-war-crimes _b_2487424.html. 45 It is not within the scope of this chapter to explore the complexities in who is governed by the Indian Act, considering modern-day treaties and the high number of Indigenous people residing in urban centres. Nonetheless, the Indian Act has continued to have far reaching effects on the lives of Indigenous people. 46 See generally, Richard Bartlett, “Indian Act of Canada: An Unyielding Barrier” (1980) 6:4 American Indian Journal 11. This article is forty years old, yet amazingly is completely relevant, aside from amendments in the Indian Act regarding the loss of status through marriage for women, and entitlements for bands to determine their membership.

Advancing Indigenous “Good Living”  217 47 See Thomas King, The Inconvenient Indian: A Curious Account of Native People in North America (Toronto: Anchor Canada, 2012) at 70–1. 48 Ibid. at 167–70n54. King notes, as many other academics, that section 6 of the Indian Act will eventually eliminate status Indians due to the restrictive nature of requirements for an individual to gain and retain Indian status. 49 Indian Act, RSC 1985 c. 1–5., ss. 115 to 122. 50 Antonio Gramsci, Selections from the Prison Notebooks of Antonio Gramsci, edited and translated by Quintin Hoare and Geoffrey Nowell Smith (New York: International Publishers, 1971) at 57. 51 Peter Ives, Language and Hegemony in Gramsci (Winnipeg: Fernwood Publishing, 2004) at 2. 52 John Fiske, Television Culture (New York: Routledge Press, 2010) at 292. 53 Douglas Litowitz, “Grasmci, Hegemony, and the Law” (2000) 2 Brigham Young Law Review 515 at 519. 54 I am using this term to describe falsities that are widely held beliefs about Indigenous people in society. Their falseness makes them “myths,” while their widespread belief makes them “truths.” 55 This is a small selection of a much longer list. For a comprehensive look, see Chelsea Vowel, ed., Indigenous Writes: A Guide to First Nations, Metis & ­Inuit Issues in Canada (Winnipeg: Portage and Main Press, 2016). 56 An example of this hegemonic status is the tension of status Indians in marital choices – the consequences of marrying a non-status person can be the loss of Indian status for their potential children. This puts individuals in the absurd position of having to consider the Indian Act when deciding with whom to engage in relationships. 57 Roger Epp, “We Are All Treaty People” in C. Prager and T. Govier, eds., Dilemmas of Reconciliation: Cases and Concepts (Waterloo, ON: Wilfrid Laurier University Press, 2003) at 236. 58 For a broader discussion on the “Imaginary Indian,” see Daniel Francis, The Imaginary Indian: The Image of the Indian in Canadian Culture (Vancouver: ­Arsenal Pulp Press, 1992). 59 Plains Cree for “a good life.” 60 See, generally, Peter Van Wyck, The Highway of Atom (Montreal: McGill-Queen’s University Press, 2010). 61 See, generally, Gordon Edwards and Robert Del Tredici, “The Secret Life of the Atom,” The Indigenous World Uranium Summit, Window Rock, AZ, 30 November to 2 December 2006, http://www.ccnr.org/Secret_Life_of _the_Atom.pdf. 62 Sylvia McAdam, Nationhood Interrupted: Revitalizing Nê hiyaw Legal Systems (Saskatoon: Purich Publishing, 2015) at 47. 63 See, generally, “The Great Binding Law (Statement of Manitoba Elders),” 28 November 2015, Turtle Lodge: International Centre for Indigenous

218  Darcy Lindberg Education and Wellness, http://www.turtlelodge.org/2015/12/the-great -binding-law-statement-of-manitoba-elders/. 64 Maskepetoon was also known as Broken Arm. This story was recorded by John MacDougall and recounted in Rudy Wiebe, My Lovely Enemy (Toronto: McClelland & Stewart, 1983). 65 Wetaskiwin is a corruption of the Cree word witaskewin (living on the land together), referred to earlier in this chapter. 66 James Youngblood (Sakej) Henderson, “Postcolonial Indigenous Legal Consciousness” (2002) 1 Indigenous Law Journal 1 at 45. 67 Costas Douzinas and Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice (Portland: Hart Publishing, 2005) at 16. [emphasis added] 68 Epp, supra note 57 at 241. 69 See Konstantin Petoukhov, “Recognition, Redistribution, and Representation: Assessing the Transformative Potential of Reparations for the Indian Residential Schools Experience” (2013) 3 McGill Sociological Review 73. 70 See the Native Women’s Association of Canada for information on the deaths and disappearances of Canadian Indigenous women and girls, https://www.nwac.ca/. 71 See, generally, Karolina Kuprecht, Indigenous Peoples’ Cultural Property Claims: Repatriation and Beyond (New York: Springer, 2014). 72 See Coulthard, supra note 15 at 168. 73 See, generally, John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002). 74 Coulthard, supra note 15 at 4. 75 Merle Alexander, as quoted in Doug Beazley, “Decolonizing the Indian Act,” CBC/ABC National Magazine, 18 December 2017, para. 13, https:// www.nationalmagazine.ca/en-ca/articles/law/in-depth/2017/decolonizing -the-indian-act. 76 The individual Final Agreements closely follow an Umbrella Final Agreement, negotiating the exchange of traditional lands for the maintenance of a breadth of proprietary, governing and access rights, as well as compensation towards the First Nations for ceding portions of their traditional territories. See Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon (1993), Council of Yukon First Nations, https://www.rcaanc-cirnac.gc.ca/DAM/DAM -CIRNAC-RCAANC/DAM-TAG/STAGING/texte-text/al_ldc_ccl_fagr _ykn_umb_1318604279080_eng.pdf. 77 Category A and Category B lands provide rights equivalent to fee simple, without surrendering potential Aboriginal rights on the land. Category B lands provide for specific substances rights that are absent in Category A lands. For one example, see chapter 5 of the Kwanlin Dun First Nation Final Agreement among the Government of Canada, the Kwanlin Dun First Nation and

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78

79

80

81

the Government of the Yukon (Ottawa: Minister of Indian Affairs and Northern Development Canada, 2004), https://www.rcaanc-cirnac.gc.ca/DAM /DAM-CIRNAC-RCAANC/DAM-TAG/STAGING/texte-text/al_ldc_ccl _fagr_ykn_kdfn_1316106821210_eng.pdf. In section 5.10.0 of the KDFN Final Agreement, a mechanism is provided for the transformation of Category A and Category B lands to fee simple. Section 5.10.1 deems all “aboriginal claims, rights, titles and interests” to have been “ceded, released and surrendered” to the Crown upon the event of transformation to fee simple. Ibid., KDFN Final Agreement at 65. The KDFN Final Agreements foresaw such a situation, as aside from providing terms for the transfer of Category A and Category B lands to fee simple, the Final Agreement in section 5.9.1 also provided for ways these lands could be registered within a lands title system, and potential “aboriginal claims, rights, titles and interests” to be deemed less in priority “for all purposes” in relation to a registered interest in the land, essentially parking the exercise of these rights while the land remains registered within the lands title system. Ibid., KDFN Final Agreement at 64. For example, see First Nation of Nacho Nyak Dun v. Yukon 2017 SCC 58, where the Supreme Court struck down the Yukon Ggovernment’s position that it had a broad authority to implement changes to a land use plan that would affect the Peel River basin in northeast Yukon. In Beckman v. Little Salmon/ Carmacks First Nation 2010 SCC 53, [2010] 3 SCR, where the SCC stated that the honour of the Crown still remains in modern-day treaty relationships. In both cases, the Yukon government took an aggressive position with regard to treaty relationships, stating that it had a paternal authority in their interpretation and implementation. Julien Gignac, “Kwanlin Dun First Nation Receives Certificate of Title for Settlement Land,” Yukon News, 30 November 2018, https://www.yukon -news.com/news/kwanlin-dn-first-nation-receives-certificate-of-title-for -settlement-land/.

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8 Accepting Responsibility for Your Nationhood Is Worthwhile for Any Nation on Earth, Not Just Indigenous People miles richardson

Introduction In May 2017, I presented to the Standing Committee on Aboriginal Peoples a detailed examination of the history and present state of the relationship between Indigenous peoples and the Crown in Canada. In my presentation I explored the necessity of immediate implementation of the federal government’s policy commitment to a renewed nation-to-nation relationship between the Indigenous Nations and the Government of Canada. I shared my insights into the methods by which Indigenous Nations and Canada can move forward in this effort, based not only on my experiences with the British Columbia Treaty Commission but also as a leader of the Haida Nation. Our nation, the Haida, successfully developed and implemented our own Constitution and asserted its ancient jurisdiction with modern legislation, including extensive land and marine use planning over our territory. What follows is a detailed examination of the ideas, issues, and concepts discussed in the presentation. A Personal Perspective My experiences as president of the Haida Nation give me a broad perspective on the often contentious relationship between the Crown and Indigenous peoples. In the 1980s, as the Haida attempted to assert Indigenous title and to protect our homeland from destruction, we increasingly found ourselves in conflict with the Canadian government. In the midst of this turmoil, we saw a glimpse of hope in a unique opportunity to build a proper relationship between the government and Indigenous people. This belief led me to leave my leadership position with the Haida to join the British Columbia Treaty Commission1

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from 1996 to 2004 – the last five years of which I served as Chief Commissioner. The Commission started off with lots of high expectations, as there was political will to resolve ongoing title disputes in British Columbia. Because of this impetus, the federal and provincial governments joined with the British Columbia First Nations Congress to form a government-togovernment committee called the British Columbia Claims Task Force.2 Over the span of six months, our seven-member task force designed the treaty-making process for British Columbia. This process was ratified by all levels of government and by the First Nations of British Columbia. I see this as the model of an appropriate treaty negotiation process today. It was intended as the “Bible” for treaty negotiations in British Columbia. After the signings by the prime minister of Canada and the premier of British Columbia, and a sacred solemn ceremony in Squamish Nation in Vancouver, we thought that we’d turned the corner. Yet, even with all that was accomplished, the promise of renewed nation-to-nation relationships fell short. We thought that we’d finally established the beginnings of a nation-to-nation relationship, at least in British Columbia; but before the ink was dry, the policy apparatus and the legislative apparatus of both governments quickly forgot their commitments and we reverted to the same situation that we are still trying to get out of today. The Historical Treatment of Indigenous Rights It is important to understand the historical reasons for these difficulties. The Royal Proclamation of 1763,3 a founding document at the Treaty of Fort Niagara in 1764, is still a part of the Canadian Constitution. It’s still a part of the law of Canada. Over the years the courts have, without question, established that Aboriginal title, our original titles, continue to exist today. If they existed at the assertion of Canada’s sovereignty, then Canada’s highest law, our Constitution, protected those laws as they then existed. So why, then, does the Crown still have such difficulty in establishing, recognizing, and embracing the idea of Aboriginal title? The problem is that the treaties and laws have constantly been rebuffed by various levels of government. This dismissive attitude has roots in actions stemming from commissions such as the McKenna-McBride Royal Commission,4 which forced our leaders to testify and to attempt to name lands that we needed for our communities without ever addressing the title question. Our leaders stated: “Why are you telling me you’re going to give me land? That’s my land. You can’t give me my land. The Queen cannot give me my land. It’s all my land. If you want to talk about the title dispute, let’s sit down and negotiate treaties. That’s what your

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law bids. That’s what your integrity bids. Let’s get on with that.” They forced band councillors and leaders of the day, under threat of jail, to testify and demarcate the lands. This has never been viewed as a legitimate process by our people. These actions eventually led to a 1924 trip by several allied tribes of British Columbia to Ottawa. The purpose of the trip was to address the title disputes through negotiations at a joint sitting of the Senate and the House of Commons. The delegation, led by Haida leader Godfrey Kelly and Salish leader Andrew Paul, expressed an eloquent case for addressing these issues through treaties. Despite their eloquence, Parliament decided to abandon an equitable and lawful relationship with Indigenous peoples. Instead, the House of Commons began banning the fundamental institutions of our nation’s strength, outlawing the potlatch and our very governance systems as an aggressive response to our entreaties for dialogue. Yet, even in the face of this conflict, the laws of Canada started increasingly recognizing the rightness of the Indigenous people’s position over the years. Substantial progress was made towards recognition of Indigenous title with the Calder case5 in the early 1970s. In that decision, the Supreme Court of Canada split on the existence of Aboriginal title, and since that time numerous court decisions have consistently reasserted the existence of Aboriginal title. The challenge, through all of this, is to recognize what we’ve done wrong for the past 150-plus years. Denial of fundamental human rights is wrong. Assimilation and trying to make Indigenous people something they’re not is wrong. Canada formally and officially apologized for that in Parliament in 2008. Now we need to change that approach as a country and put in place the correct relationship. I submit that the correct relationship is what the new Trudeau government has announced as their central policy of establishing a nation-to-nation relationship. We have to begin with recognition of Indigenous nationhood and build the steps from there, step by step. The Historical Relationship between Indigenous Peoples and the Crown (Three Phases) I see three essential phases in the relationship between Indigenous people and the Crown: the colonial, dark, and reconciliation periods. The first phase was the colonial period where the various colonial powers of Europe and Russia, in our case on the West Coast, were vying for a leg up in establishing their authority in what has become Canada. That was a period when Britain came to the First Nations at Niagara

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Falls with a royal proclamation that would underpin their policy: any relations with Indigenous people, as described in their Royal Proclamation of 1763, would be conducted on a nation-to-nation basis. The Treaty of Fort Niagara was intended to broker an appropriate standard between the First Nations and the colonial peoples. They talked about living side by side and respecting each other on a government-to-­ government basis but going down the river of daily life as partners and supporters of each other, which those of us on the West Coast always saw as an appropriate standard and which informed our intentions in concluding the British Columbia treaty process and the commitments therein. That was the first phase and it included good intentions, but it didn’t last long. Then we experienced phase two, in which the Indigenous peoples were denied their fundamental rights, which I think of as the dark period. Around the time of the Treaty of Fort Niagara, Canada started negotiating treaties One to Eleven6 across Canada, east to west. By the time they got to British Columbia, they severely, obviously, and starkly changed their mind. This policy of nation-to-nation treaty-making turned to one of denial of the fundamental legal and human rights of Indigenous peoples, denying, denying, and denying those rights while putting in place an operative policy to assimilate Indigenous people into the body politic, attempting to eradicate them as a people. The third phase is the present political reality, where genuine attempts at treaty negotiation are beginning to take place, and this is reflected by a new phase of reconciliation, where we’re attempting to build a new and appropriate relationship going forward after 150-plus years of doing the wrong thing. Certainly, the leaders of Indigenous peoples have consistently stated and restated the existence of our title, the recognition in British and Canadian common law of our title, and the need to negotiate treaties to figure out how we are to live together in our homelands. Even though the relationship is defined by an unequal power relationship, Indigenous people have still exercised power and agency in a variety of ways.7 The Present State of Relations between First Nations and the Crown The evolution of the treaty process in British Columbia rests on the recognition of our ongoing societal existence. We made fourteen treaties on southern Vancouver Island and a little extension of Treaty 8 in northern British Columbia, but we recognize that the rest of British Columbia was without treaties. Aboriginal title, in whatever form it existed throughout

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history, still fully existed and was protected by Canada’s highest law. We recommended in the British Columbia Claims Task Force that the governments of the day begin the negotiations by recognizing the Indigenous people. If you read the fundamentals ABCs of law in the Calder case, you will read what the Supreme Court of Canada recognized, and it certainly wasn’t a bombshell: “Your title exists because you still exist in organized societies and are functioning much as you always have, long before we showed up and after we showed up. You continue to exist as societies.”8 This recognition is the starting point for any constructive and ongoing relationship between First Nations and the Crown: that there must be a fundamental belief in the mutual recognition that both the First Nations and the nation state of Canada exist, and will continue to exist for the foreseeable future. Indigenous nations recognize Canada is here and, in the later words of a wise Supreme Court judge, “It is here to stay.” First Nations never argued with that. We have never asked people to leave but we have asked the Crown, in right of Canada and British Columbia, to recognize that our nations continue to exist and that, by agreement, we all acknowledge they are here to stay. We need to sit down, as people with integrity, and finally negotiate these fundamental issues, which we’ve neglected for too long. Even though we understand the need for mutual recognition, we have never acquiesced to the imposition of colonial rule, laws, and policies. As I previously noted, concerns were expressed by many Indigenous leaders over the years concerning the imposition of the Indian Act. Indigenous peoples have seen the act as a method to fracture and fragment self-determination. It has also had a significant impact on our ability to maintain cultural integrity within our customary forms. In many cases, the imposition of colonial resource regulations led to resistance through a continuation of traditional activities. In many instances, these regulations and laws led to a renewal of cultural and ceremonial practices as reaction against such heavy-handed tactics. As many others have noted, this led to continued persistence in their traditional institutions through active resistance as “an assertion of Indianness.”9 What Is a True Nation-to-Nation Relationship? An authentic nation-to-nation relationship occurs through a series of steps. To begin, we must establish mutual recognition, and then move towards consultation and agreement with each other. We must take cautious steps forward, interim measures, but right now our whole system is set up under statutes, under federal and provincial authorities,

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none of which have contemplated the existence of First Nations, of Indigenous people. The only way these issues can be addressed is at the treaty table, by figuring out how Indigenous rights, interests, and realities, will be included in any federal and provincial jurisdiction. It also requires a conscious restoration of First Nations jurisdiction over land that is integral to our existence, and anything else we choose to continue to wield. Treaty-making is a process, not an event. The methods by which these relationships will be strengthened and repaired will take time, and will not occur in one symbolic moment. It’s going to take building the new relationship. It’s going to take building trust for each other. It’s going to take working out our future together, step by step, which is going to take time. How a True Nation-to-Nation Relationship Will Be Established There are three ways in which a true nation-to-nation relationship will be established. • The first is through a sincere commitment to the process by all parties. Both the First Nations and the Government of Canada need to show an ongoing commitment to the completion of treaties. • The second is that Canada must formalize that commitment. Through modern governmental proclamations or formal binding statements, on behalf of the Canadian people, the commitment would be signalled to all and would indicate the sincerity of the process. • Third, I suggest the establishment of a working group at a pan-federal government level that has no departmental silos. It would need to be a working group that represents the entirety of the government. The Indigenous peoples would also establish a similar working group, to flesh out the step-by-step implementation needed. The complexities of these arrangements would be considerable, but forward momentum is necessary. If you look at the Royal Commission on Aboriginal Peoples,10 it identifies sixty to seventy nations across the country; most of those are in British Columbia. By “nations” I mean peoples who have ancient common identities, who share a similar language, who share a territory, who share cultural traditions, and who are related. It’s been made much more complicated by 150 years of colonialism. It’s a tough job, but we’re never going to get there without the commitment.

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The Mutual Recognition of the Right to Exist It may seem strange that our peoples should need to establish our right to exist, but there are still outdated policies that undermine such recognition. Historically, the treatment of Indigenous peoples by explorers was set in place through papal canons that gave them two options if they ran into new people. First, they had to convert, or reconcile, them to Christianity. That’s why a lot of Indigenous people today don’t like the word “reconciliation,” because there’s a definition for reconciliation that means to bring back under the authority of the church, and that’s certainly not what we’re talking about here. The historical reality of the papal canons is an obstacle towards forward progress. The authority of the papal canons authorized explorers to first attempt to Christianize Indigenous people, and if they couldn’t Christianize them, it was okay to kill them. Those are still on the books of the Catholic Church.11 Those must be done away with. That should precede any apology. The apology is empty if those papal canons still exist. Without officially rejecting the notion of extinguishment, any nation-to-nation recognition is complicated if not impossible. The main purpose of federal government negotiations was to extinguish any legal entitlements held by those people. That was the number one purpose of their negotiations. In return, they provided a little package of goodies: some land, some money, and, later, through the insistence of First Nations, recognition of some governance powers. The British Columbia Claims Task Force rejected the extinguishment approach and decided instead that certainty of jurisdictions was the only way to move forward with negotiations. The bargaining in good-faith of jurisdictional responsibilities would allow First Nations, and the various levels of government, to determine where their best interests were. We need to get to a sufficient level of detail to cause action. Action by the Office of the Prime Minister and at the cabinet level is not sufficient. We need to get down and rejig the whole policy mechanism of government and put in place these relationships and agreements on a pan-government basis. That’s what nation to nation must mean. A Divided Sovereignty In some instances, negotiation is made more complex through the historical existence of jurisdictional peculiarities. In British Columbia, the Crown is a divided sovereignty. The provinces hold constitutional sovereignty over their areas of jurisdiction, but under section 91(24) of the Constitution, they say the federal government has authority for Indians

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and lands reserved for Indians. That was the colonial approach. That was just shuffling us off into the corner. The lands and territories of the First Nations in British Columbia are under Crown authority of the province, meaning that if the province isn’t at the table, we can’t effectively deal with lands and resources. Despite these complexities, the responsibility of jurisdictional authority forced the provincial government to negotiate. In British Columbia, there was a lot of discomfort with that, but in recognizing the jurisdictional division of the Crown, the province had to be there. That is the importance of the nation of Canada, through the federal Government of Canada, making a policy about a nation-to-nation relationship. The government needs then to spend the resources of this nation, the authority of this nation to make that reality, and use whatever power it has to persuade, to encourage, to cajole the provinces to toe that line, and to step up to the plate in that nation-to-nation commitment. My experience in British Columbia is that the provinces will. It’s the federal government that has been the laggard. How Heritage Sites Lead to Functional Indigenous Governance In the 1980s, my nation, Haida Gwaii, was combating rampant destruction of the natural resources in our lands. The intent of some corporations to drill for oil and gas in the waters of Haida Gwaii forced us to take action. It drove us to resume, such as we were able, our jurisdictions and our responsibility for our homeland – our life source. We were no longer going to go hat in hand and try to lobby the federal and provincial governments that never listened to us. The result of this action was the creation of a modern constitution that took our rich, strong oral tradition, which had a very strong traditional government, and put it into writing. Anybody who came to our homelands and had any dealings with us could see it. If you go to the Haida Nation’s website, you can read our nation’s Constitution.12 This new Haida Constitution led to legislation over land and marine use. This legislation was written in the absence of any meaningful input from the provincial and federal governments. Piece by piece, as we had the ability, we legislated in our annual House of Assembly all necessary land designations. In 1981, we designated the Duu Guusd Tribal Park13 as a Haida heritage site. In 1985, we designated Gwaii Haanas14 as a Haida heritage site under Haida legislation. In 2010, two decades after we had legislated these heritage sites, the provincial government finally signed a respect protocol that brought all our land designations in line with each one another. British Columbia put in place legislation to match the Haida legislation that had been put in place twenty years before. It all came from Haidas saying, “Enough

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is enough. This is our homeland. We are the owners and we make the rules.” Though it took decades, the federal and provincial governments have finally seen the wisdom of the Haida legislation. We asserted it according to our means and things seem to be working just fine now. The resolution of the nation-to-nation relationship is important if First Nations are to build modern economies, and land and marine use planning are at the centre of that evolution. Every First Nation has different priorities, and far from the monolithic and generic way in which we have been treated, the various First Nations are as different as the nation states of Europe and Asia. We have a lot of common traditions, but the realities of where we live and conduct our lives are quite different. The opportunities are different. Land and marine use planning allows First Nations to accept responsibility for their future. Accepting responsibility for your nationhood is worthwhile for any nation on earth, not just Indigenous people. Though the Indigenous peoples of Canada have experienced a weakening of control over our lands and lives, our strength is in our governing systems. We’re a collective people. Our assets, our rights, and our title are held collectively. We need functional governance processes to make those work. Reassertion of legislative control over our lives and land is a necessity for the Indigenous peoples of Canada. The levers of influence over our own lives are in other hands. The Haida stood up and we’ve taken them back. I would encourage other people to do that. Health care is in the balance. The education or the well-being of your children is in the balance. Many of us read and watch the news every night. We see how precarious that situation is in most of the country. Is Canada willing to deal with every nation as they’ve dealt with the Haida Nation? A Modern Definition of Nationhood Ultimately, the definition of what constitutes nationhood for any specific First Nation should be determined by the peoples themselves. I see a First Nation definition tribunal appointed jointly by the Crown and involved First Nations. This tribunal would work with all those within the realm of rights and title holders of any nation to work out their definition of nationhood. Upon commitment of a true nation-to-nation relationship, and following adoption of the Truth and Reconciliation Commission’s recommendation for a new modern state, a modern royal proclamation would be instituted. Following that, a group of representatives from First Nations and the various levels of government would begin defining the nations. However, it is ultimately up to each and every First Nation to define and govern themselves.

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Having said that, there will still be some communities that will not give up on what they have now. That’s a reality we will have to deal with. Perhaps Indian Affairs will have to continue in some form as it continues to diminish, and as more nations choose the nation-to-nation relationship. It is what needs to be done, and we should start with the willing. There are many nations in Canada that are serious about surviving and prospering in the future, and they understand that if there’s any place on Earth that such an outcome can be accomplished it’s within the framework of Canada. Using the experience of my fellow Haida peoples as an example, I have seen that land use plans are an effective method to build momentum towards nationhood. In British Columbia, more than half of the province is under government-to-government agreements concerning land use. No one else in Canada, or even the wider world, seems to know that we’ve accomplished this, but when we first started down the road we asked all the stakeholders to agree to having any disputes resolved at a government-to-government level between First Nations in their territory and the Province of British Columbia. The business community and the municipalities were running around saying, “The sky is going to fall,” but has it? In those areas where land use plans are in effect, many would argue that there is more stability and certainty for the business community and a clear blueprint for the municipalities as they grow and evolve. This can be seen in the modern approaches of many Indigenous peoples to revitalize our nations, our cultures, and our practices. In order to have successful self-government, we must have competency in leadership, governance, and business development – competencies that are within our control. Many Indigenous communities have taken this idea very seriously and have invested significantly, in a proactive way, in these areas. There are external factors that are outside of local Indigenous control; however, there are many internal factors that can be self-determined and can affect positive change in our communities. Culture is an important matter to Indigenous peoples, and this extends to areas of economic and business development. We need to learn and use modern tools, but it is important to combine that knowledge with our own cultural knowledge and values. In so doing, stronger nations and communities will naturally emerge and flourish. Defining Nationhood – the Haida Example There are many complexities when defining nationhood. In the Haida Nation’s example, we brought together a consensus of modern communities and ancient communities. For 500 years the entity of the Haida

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Nation as a governing authority didn’t properly exist. There were alliances and common actions that happened as a result of our governing process, but there wasn’t an annual House of Assembly for an entity called the Council of the Haida Nation. We created that in our lifetime. The Haida Nation was initiated with a proclamation that signalled, to both ourselves and the outside world, our place in our territories and the greater world. It’s just a timeless statement of who we are. To get to that moment, there was considerable discussion amongst our two modern Haida communities, in Hydaburg, Alaska, and also in Haida Gwaii. All the clans from each of those communities came together to form a consensus for our nation. Every step had to be done formally, and there had to be formal notice given. There had to be agendas drawn up that gave people time to prepare, and we had to be disciplined about how we conducted the discussions and how we gave everyone a chance to participate. The standard for ratification for this process was incredibly high: a standard of 75 per cent. This was necessitated by the need to establish consensus amongst the thirty or more clans and across the two major communities. There are many ways of doing it. Our way of doing it was one. It took a long time. It took a lot of confrontation, loving, and good facilitation, through the process to get us there. Though we’re largely there, we still have a lot of work to do. This process is an example of Anderson’s work on contingency theory. In this theory, he acknowledges that there are larger global systems involved that affect local strategies. Yet he explains that many of these factors are within the control of Indigenous people. These ideas place control in the hands of the communities, where it should be, and allow for community leaders to be active agents of change.15 As I write this, my people in Haida Gwaii are sitting in a constitutional assembly evolving our Constitution to the next plateau. It’s constant work. All the aforementioned tribunal would need to do is make sure, in terms of the needs of Canada, that we are harmonized and that we reflect the real needs of each nation. This would mean that those needs are respected and that the process put in place to develop their nationhood would have a fair chance at success. However, it must be done by the nation and it must be supported by the Crown in right of Canada. Modern Treaties and Economic Prosperity As I mentioned before, contrary to the concern of some, the land use plans and modern treaties have proven to be beneficial to those regions where they have been implemented. Each nation is unique and it would be a mistake to extrapolate the results from one region to another but,

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through perhaps the best known example of a modern-day treaty, the Nisga’a have shown that economic prosperity is achievable. The chorus from their neighbours in Nisga’a, the non-Nisga’a, the non-Indigenous, and that whole region of the province overwhelmingly seems to be that it was a win-win situation economically for everyone. There’s certainly no question about that, it is there for everyone to see on the Nisg’a’ government’s website.16 As Brian Caillou mentions in his writing on wise practices in chapter 2 of this volume, there is a common thread that binds the Indigenous business experiences of the many seemingly disconnected First Nations in Canada – social enterprise. Caillou, citing Duane Champagne, explains that an “important dimension that seems to recur is that many Indigenous businesses are collectively owned and more closely reflect a social enterprise, that is, an enterprise that makes a profit that is used for social purposes. One commentator describes this collective approach for social as well as economic goals as “tribal capitalism.”17 Another commentator calls this foray into the business world with band-owned enterprises as “capitalism with a red face.”18 Indigenous economic enterprises often reflect a socially collective outlook and approach. This approach reveals the entrepreneurial mindset of the Indigenous approach to business, but also to government. Successful leadership in these communities have adopted an innovative entrepreneurial approach to self-government and community development. If you look at the five modern treaties that have been concluded, they reflect this process, with each of those nations progressing forward economically. They’re seeing a brighter day. Over the years, I think the consensus is strong that nation-to-nation results in win-win situations. A happy, prosperous neighbour is much preferred to an ornery, poor neighbour. In this year, in which 150 years of colonial rule was celebrated across Canada, it is important to reflect on the reality of this legacy. Indigenous people should celebrate that we’re still here, and are still strong, vibrant, and alive. The intention over the last 150 years has been to snuff us out and absorb us into the body politic. That we’re still here, that we’re still identified as being who we are in our homelands, in the places on Earth where our Creator put us, is a testament to the strength of the human spirit. That’s worth celebrating. NOTES 1 See the British Columbia Treaty Commission, http://www.bctreaty.ca/. 2 Joe Mathias, Miles G. Richardson, Audrey Stewart, Murray Coolican, ­Edward John, Tony Sheridan, and L. Allan Williams, The Report of the British

Accepting Responsibility for Your Nationhood  235 Columbia Claims Task Force (Ottawa: Ministry of Aboriginal Affairs, Crown Publications, 1991). 3 King George II, The Royal Proclamation (7 October 1763), accessed 20 ­December 2020, https://www.solon.org/Constitutions/Canada/English /PreConfederation/rp_1763.html. 4 McKenna-McBride Royal Commission, Report of the Royal Commission on Indian Affairs for the Province of British Columbia (1916), accessed 20 December 2020, https://www.ubcic.bc.ca/mckenna_mcbride_royal_commission. 5 Calder et al. v. Attorney-General of British Columbia, 1973 SCR 313. 6 Michelle Filice, “Numbered Treaties,” The Canadian Encyclopedia, 2 August 2016, https://www.thecanadianencyclopedia.ca/en/article/numbered -treaties. 7 G.D. Caillou, “Urban Indians: Reflections on Participation of First ­Nation Individuals in the Institutions of Larger Society” in J.R. Ponting, ed., First Nations in Canada: Perspectives on Opportunity, Empowerment, and Self-­Determination (Toronto: McGraw-Hill Ryerson, 1997) at 222–34. 8 Ibid. at 5. 9 Ibid. at 7. 10 Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (1996) https://www.bac-lac.gc.ca/eng/discover/aboriginal -heritage/royal-commission-aboriginal-peoples/Pages/introduction.aspx. 11 Vinnie Rotondaro, “Doctrine of Discovery: A Scandal in Plain Sight,” ­National Catholic Reporter, 5 September 2015, https://www.ncronline.org /news/justice/doctrine-discovery-scandal-plain-sight. 12 Constitution of the Haida Nation (October 2018), https://www.haidanation .ca/wp-content/uploads/2018/10/Constitution-2018-10-signed.pdf. 13 Duu Guusd Management Plan (July 2011), http://www.haidanation.ca/wp -content/uploads/2017/03/duu-guusd-july292011-mp.pdf. 14 See “Gwaii Haanas National Park Reserve, National Marine Conservation Area Reserve, and Haida Heritage Site,” Government of Canada, 4 March 2019, https://www.pc.gc.ca/en/pn-np/bc/gwaiihaanas. 15 Caillou, supra note 7. 16 See Nisga’a Lisims Government, http://www.nisgaanation.ca/. 17 See Duane Champagne, “Tribal Capitalism and Native Capitalists: Multiple Pathways of Native Economy” in Brian Hosmer and Colleen O’Neill, eds., Native Pathways: American Indian Culture and Economic Development in the ­Twentieth Century (Boulder: University Press of Colorado, 2004) at 308. 18 See David Newhouse, “Modern Aboriginal Economies: Capitalism with a Red Face” (2000)1:2 Journal of Aboriginal Economic Development 55.

9 Wise Practices in Indigenous Economic Development and Environmental Protection john borrows

Introduction Indigenous people, governments, and corporations find themselves within legal landscapes that emphasize the need for consultation, dialogue, and consent with respect to activities that impact land and resources. Successfully navigating this terrain requires understanding the broader field. In the international realm, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) calls upon states to secure the free, prior, and informed consent of Indigenous peoples when undertaking projects affecting Indigenous lands and resources.1 Some states are striving to implement these obligations in the domestic sphere. For example, Canada has previously experimented with implementing UNDRIP at a national level with Bill 262: An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of In‑ digenous Peoples.2 This bill’s preamble recognizes “that the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples should be enshrined in the laws of Canada.”3 Unfortunately, the bill did not pass. Even without such national legislation, the Supreme Court of Canada has established the primary rules for engagement between Indigenous peoples and the Crown where economic development impacts constitutionally protected Aboriginal and treaty rights under section 35(1) of the Constitution Act, 1982. These standards have developed “organically,” on a case-by-case basis. Unfortunately, without reference to overarching standards, the Canadian Parliament, legislatures, and courts have struggled to identify and apply coherent principles and procedures for working with Indigenous peoples. There is no overarching legislative plan for enabling Indigenous peoples to flourish when it comes to dealing with corporations and governments throughout the country. Corporations also face obstacles,

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and governments have generally failed to create the conditions for positive change. There is significant room for critique on all sides, as corporations, governments, and Indigenous communities have identified considerable problems in their engagement. This chapter argues that (in addition to implementing UNDRIP) the parties must seize the initiative from the courts and co-develop their own relational rules for engaging in economic development to achieve better results. We need extra-legal solutions to address the problems identified within and flowing from the law of consultation and accommodation in Canada. At the same time, it must be recognized that the co-creation of wise practices in relation to economic development will always occur within the law’s shadow. The courts have the final word in constitutional democracies like Canada and this requires a measure of deference to their rulings. This can be problematic when Indigenous interests are overlooked because they have much less political, economic, or social power in society. Yet, despite these challenges, Indigenous peoples are not completely powerless. Judicial review is available and there is significant room for innovation and creativity. Fortunately, the courts have only identified the floor and not the ceiling of what is possible for the parties. This chapter contends that the courts’ minimum standards on consultation and accommodation should not characterize the contours of Indigenous/Crown/corporate relationships. In the light of UNDRIP, the parties should go beyond the courts’ minimal rules and co-generate their own procedures for excellence in economic, environmental and social terms. This is a call for creating wise practices for engagement and mutual benefit in ways which are attentive to the power imbalances in the field. Specifically, state and corporate parties should work with Indigenous peoples to maximize their agency to create healthier economic and environmental relationships. Thus, this chapter provides an interpretation of the relevant laws and international standards that could be considered within a “wise practices” regime in Canada. After examining the wider legal framework, the chapter considers questions related to (1) who should be consulted, (2) what characterizes adequate consultation, and (3) how Indigenous self-determination influences the field. When discussing wise practices in an Indigenous context, this chapter draws on the research insights developed by Brian Calliou and Cora Voyageur at the Banff Centre for Indigenous Leadership. They write: “Wise practices are best defined as ‘locally-appropriate actions, tools, principles or decisions that contribute significantly to the development of sustainable and equitable conditions.’”4 They have further found that these locally oriented approaches interact with broader contextual

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factors to produce wealth accumulation for the public good (which specifically includes the Indigenous public). These broader factors (which facilitate wise practices) include “1. Identity and culture, 2. Leadership, 3. Strategic vision and planning, 4. Good governance and management, 5. Accountability and stewardship, 6. Performance evaluation, 7. Collaborations, partnerships, and external relationships.”5 While I have not divided my analysis along these seven axes, they represent measures that underlie my use of the phrase “wise practices” in this chapter. Two general findings emerge from this chapter’s review. First, the development of any wise practices for dealing with Indigenous peoples should highlight the importance of developing good relationships. This requires levelling the playing field between the parties by constraining Crown and corporate power and enhancing Indigenous authority and responsibility. Healthy inter-societal and interpersonal relationships require greater measures of dignity, respect, and symmetry. Relationships will not be productive and reciprocal if Indigenous peoples are perpetually subordinated. Well drafted legislation or finely crafted contracts are inadequate if Crown and corporation influence overwhelm Indigenous decision-makers. The parties must work to ensure that Indigenous peoples’ power is significantly enhanced in practical ways. Fortunately, despite legislative inaction, Canada’s juridical framework includes doctrines that hold the potential for strengthening Indigenous peoples. Of course, there are many contrary themes.6 Moreover, the available protections are much too weak and foundationally unstable.7 Nevertheless, at the broadest level, Canada’s law has provisions addressing state paternalism and Indigenous empowerment.8 These must be further developed to help communities better act in their own interests. In this light, from a legal, economic, and environmental perspective, support for the building of stronger Indigenous communities should be at the centre of any corporation’s or state’s relationships with Indigenous peoples. Facilitating Indigenous resurgence is a wise practice in the broader economic context. Second, parties need to do a better job of distinguishing between governments and proponents when developing wise practices in relation to Indigenous communities. Most developments in Canada’s legal frameworks focus on the role of governments in consulting and accommodating Indigenous peoples. However, governments have delegated most of the specific elements of consultation/accommodation to corporations. There are asymmetrical advantages and disadvantages to this approach for governments, corporations, and Indigenous communities. However, one emerging challenge is the failure of the parties to keep their eye on the distinct nature of governmental versus corporations’ roles in the

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process of economic development and environmental protection. This has led to confusion in the field which potentially undermines the development of better relations which simultaneously facilitate Indigenous resurgence and corporate goals. Expectations for each party become unrealistic if corporations are obligated to fulfil government responsibilities, or if Indigenous communities are expected to act like corporations. Great caution must be exercised to ensure that the parties remain clear about the distinctions between the parties’ roles. A First Nation or Metis hamlet is not a corporation, and a corporation does not have the same kind of social welfare and accountability mechanisms which a state possesses. Consultation and Accommodation: The Broader Legal Framework Aboriginal and treaty rights were recognized in Canada’s Constitution in 1982. Section 35(1) of the document reads, “The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and confirmed.” When the Supreme Court of Canada first interpreted this section in the leading case of R. v. Sparrow in 1990, it held that Aboriginal rights constrained Crown sovereignty.9 This occurred in at least two ways. First, the Crown could no longer unilaterally extinguish Aboriginal rights once they were constitutionalized. Second, the Crown could only infringe Aboriginal rights if the Crown had a valid legislative objective and it acted honourably. In 1996 in a case called R. v. Badger, the Court applied this same test to Indigenous treaty rights and held the Crown could justify treaty breaches if it met the two criteria identified in the Sparrow case.10 This put in motion a legal process that has slowly evolved over the past thirty years. The Supreme Court subsequently identified standards that the Crown must follow if it infringes Aboriginal or treaty rights. These standards extended to instances where Aboriginal rights and treaty rights were asserted but not proven in a court of law. In 2004 the case of Haida Nation v. British Columbia held that when Aboriginal rights were asserted, the Crown had to analyse the strength of the Aboriginal claim and the impact government action would have on that claim in determining the level of consultation and accommodation necessary to justify a rights infringement.11 The Mikisew Cree First Nation v. Canada extended this analysis to a historic treaty context.12 Recent cases from the Supreme Court have tested the Crown’s obligations to Aboriginal peoples in administrative law settings, modern treaties, and freedom of religion contexts.13 For example, recent developments in this area of the law have recognized that legislatures are empowered to enable regulatory bodies to fulfil the

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Crown’s duties under section 35(1).14 In July 2017 the Supreme Court of Canada held that the National Energy Board (NEB) could act on behalf of the Crown when considering treaty rights. The two cases that reached this conclusion are the Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.15 and Clyde River (Hamlet) v. Petroleum Geo‑Services Inc.16 In the first case the Court found that the Chippewa of the Thames had been adequately consulted and accommodated through participation in an independent decision-making process (the NEB), which accounted for and mitigated impacts on their Aboriginal and treaty rights.17 In the second case, the Court found that the Clyde River Inuit did not receive adequate consultation and accommodation in relation to their rights.18 Despite the need for “deep consultation,” the NEB did not provide oral hearings, participant funding, translation of documents, or written reasons for their decision. The Court thus held, “No mutual understanding on the core issues – the potential impact on treaty rights, and possible accommodations – could possibly have emerged from what occurred here.”19 The Chippewa of the Thames and Clyde River cases stand within a broader context. In the shadow of pipeline protests, oil and gas development is increasingly being scrutinized for its local and international effects.20 Disputes like those related to Keystone XL,21 Trans Mountain,22 Northern Gateway,23 and Energy East24 have raised significant concerns for whether wise practices are being followed in pursuing economic and environmental justice in this field.25 In 2018, the Supreme Court of Canada further explored governmental duties related to consultation and accommodation of Indigenous peoples and ruled that these duties do not apply to the law-making process. In a case called Mikisew Cree First Nation v. Canada (Governor General in Council) a majority of the Supreme Court concluded that the “Federal Court was not validly seized of an application for judicial review in this case” because the “Federal Courts Act does not allow for judicial review of parliamentary activities.”26 This problem could be fixed if Parliament amended the Federal Courts Act to require governmental consultation on legislative development where Aboriginal and treaty rights would be affected. Beyond the Supreme Court’s narrow jurisdictional ruling, it was significantly divided on the question of whether legislation that does not infringe section 35 rights but may “adversely affect” them might be found to be inconsistent with the honour of the Crown and thus open a future door for judicial review in the legislative process.27 While it is possible to conclude that five judges on the Court would be willing to entertain a future action questioning whether a legislative development could breach an Aboriginal or treaty rights in some circumstances, it is also clear that seven judges of the Court were not willing to conclude that such a duty was broadly available to Indigenous claimants.

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Problematic Aspects of the Legal Framework for Indigenous Peoples and Corporations The largest issue Indigenous peoples have with the consultation and accommodation regime is that it is premised on the diminishment or suspension of their constitutionally protected rights. Imagine how you would feel if a corporation knocked on the door of your church, workplace, or home and said: “Hello. You might not know us, but we are building an X project through your neighbourhood. In order for us to make money we would like to consult with you about potentially infringing your constitutional rights to religion, conscience, speech, assembly, mobility, life, liberty, security, equality, or other rights and freedoms you might possess.” After the shock of this declaration wore off you would not likely be mollified, at least initially, if the corporation’s representations said: “Don’t worry, we will accommodate your concerns about your rights being eroded.” As corporations are designed to operate in their own best interests, which primarily involves maximizing their own investors’ wealth, you might be suspicious about whether accommodation was possible and what it might accomplish in these circumstances. Furthermore, you will already be busy doing other things. You might find the sudden intrusion of the corporation’s objectives on your time and other priorities to be very taxing. You might not want to support the corporation’s activities in your church, workplace, home, or environment. This example demonstrates that we must never lose sight of the fact that consultation and accommodation exercises are designed to take away rights that are protected under Canada’s highest laws (our Constitution), even if the process can be designed to give something in return. Moving further into the jurisprudence we can take our hypothetical situation one step further. Imagine the corporation’s representative next says to you: “Governments have allowed us, the corporations, to work with you to determine how much we can cut back your rights, even though governments possess the ultimate responsibility for what we are doing.” When you hear this, you might think the government has put the fox in charge of the hen house. While analogies are never perfect, this scenario may convey some of the challenges involved in working with Indigenous consultation and accommodation issues under section 35(1) of Canada’s Constitution. Corporations, not governments, are the main actors who deal with Indigenous peoples in this area of law. They are not generally trusted by many Indigenous communities. They derive their power from legislatures and are often seen as government-like agents deployed to do the government’s dirty work of further eroding Indigenous rights.

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This is to say the Supreme Court has held that while the Crown is ultimately responsible for justifying potential breaches of Aboriginal and treaty rights, proponents are often delegated procedural aspects of Crown consultation.28 In this respect they are government-like agents; as noted, they receive both their general powers to operate and their specific responsibilities for consultation from government bodies. Since governments rely heavily on proponents in carrying out the lion’s share of engagement with Indigenous peoples, corporations have created processes for dealing with Indigenous peoples. As a result, most corporations have internal processes for determining the appropriate level of engagement with Indigenous communities. When the results of their engagement are submitted to the Crown for approval they are often “rubber-stamped” for approval after a formal or informal review. In addition to their own policies, companies usually engage Indigenous people who self-declare their interests in projects. It is most companies’ experience that the scope and scale of the delegation of procedural obligations continue to expand through Indigenous activism and the law’s slowly growing recognition of different dimensions of Aboriginal rights. On the face of their engagement, most companies are committed to being good neighbours and acting on company policies and strategies. At the same time the changing nature of regulatory boundaries has made it challenging to determine what constitutes meaningful, adequate consultation. While companies are very far from being blameless, one of the challenges corporations face is that their activities can become a “lightning rod” for Indigenous peoples who are frustrated with the government’s failure to adequately deal with Aboriginal and treaty rights. Corporations sometimes become scapegoats for government failures in setting basic ground rules related to whether a specific type of development is acceptable and how such development should proceed. Thus, Aboriginal peoples and proponents engage in protracted processes trying to arrive at appropriate consultation and accommodation regimes, or alternatively, the parties spend too little time and money on these issues raising uncertainty later in the development process. As a result, it is becoming increasingly difficult for companies to manage consultation/engagement processes within reasonable time lines. Corporations are frequently caught between Indigenous peoples’ legitimate expectations and complicated government regulatory processes that pass along government obligations without the concomitant resources. Indigenous peoples also feel like they are in a catch-22 situation when dealing with issues of consultation and accommodation. As noted,

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corporate and government goals often align in ways that frustrate Indigenous aspirations. When corporations pay royalties and taxes, this enriches Crown coffers. This money also enhances the government party in power’s political fortunes in the media and general electorate. This also causes Indigenous peoples to treat corporations as being largely the same as governments. In the process, Indigenous communities seek to extract benefits that governments should normally provide to them as citizens of the province or nation. These communities use rhetorical strategies with corporations that are often aimed at broader government neglect, abuse, or incompetence to either stop development or extract benefits. As the above points suggest, there are significant structural barriers to creating healthy relationships between Indigenous peoples and corporations. Trust is unlikely to flourish in the legal atmosphere within which these issues circulate. The effect of this confusion is that proponents can be painted as the “bad guys” when, in fact, in the first instance it has been the governments that failed to adequately address Indigenous issues. While proponents can themselves be aggressively abusive or dismissive of Indigenous interests, many corporations that are interested in implementing wise practices proclaim they are merely following government rules. In their pursuit of legitimate shareholder interests, corporations can be blamed or confused as being the party mainly responsible for Indigenous peoples’ challenges. This is a problem for environmental protection and economic development. It is vital that industry, Indigenous peoples, and governments understand these dynamics as they relate to the legal frameworks operating within Canada. One way to address this problem is for governments, in partnership with Indigenous peoples, to create broader principles for economic development and environmental protection on traditional territories or Aboriginal title, treaty, or reserve lands. Let Indigenous peoples set the framework. Use UNDRIP as a guide in this process. Then, let the government provide the support for implementing Indigenous self-determination. Corporations could then act within the framework set by Crown and Indigenous governments. Proponents are the junior partner in the relationship in this regard and they should not be responsible for forging resource policy on a case-by-case basis with ­specific communities, merely because governments have failed to act in the field. In other words, corporations require greater certainty from Indigenous communities and governments about the context in which corporations operate. Proponents do not always know who they should accommodate when proposing developments. They do not have clear

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guidelines about whether their consultation is adequate. They do not have a clear enough sense of those policies necessary to facilitate the resurgence of Indigenous communities in their relationships. In absence of a broader legislative and policy framework supportive of Indigenous self-determination, we are left with a legal regime that prioritizes ad hoc efforts towards consultation and accommodation for the infringement of rights. Thus, parties must find ways to move beyond this framework even as they abide by its minimum standards. In light of these limitations (which I have written about rejecting, resisting, or changing in other contexts),29 I next explore the legal principles that industry must currently consider in order to determine the following questions: A. Who to consult? B. How can adequate consultation and accommodation be determined? C. How does Indigenous self-determination effect consultation and accommodation? As these issues are addressed from a contemporary jurisprudential perspective, I trust readers will be mindful of the law’s inadequacy for the reasons canvassed up to this point. I would continue to argue for its rejection and replacement with regimes that place the Indigenous resurgence of law and governance at the centre of our efforts.30 At the same time, given the framework that currently exists, I will suggest ways that wise practitioners can enhance Indigenous self-determination while simultaneously meeting and exceeding the minimum standards found in our present legal regime. A) Who to Consult? Determining who to consult when development within section 35(1) of the Constitution Act, 1982 is considered is complicated by many factors, including colonial impositions related to identity, and the broader human phenomenon of multiple identities and fluid identities. Quite simply: Indigenous peoples can have many identities. This often makes it difficult for corporations or governments to know who to consult. It also creates conflict within Indigenous communities, leading to unhealthy competition, acrimony, and confusion. In considering who to consult in this section, the following broad categorizations are relevant: (i) fluid and multiple identities, (ii) treaty rights, and (iii) Aboriginal rights and title.

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i) Fluid and Multiple Identities: The Continuing Relevance of Colonialism Canadian law and policy has fractured and reconfigured Indigenous communities.31 This process has been partial and incomplete. Older Indigenous identities intermingle with imposed, invented, or reformulated identities. Thus, when proponents consult with Indigenous communities, they may find that communities are not organized in a clear fashion. Who to consult becomes confusing: Indigenous communities draw on different aspects of their identities in varied situations. Indigenous peoples have a “menu” of options to advance when presenting their identity to proponents. Individuals, clans, families, bands, tribal councils, and linguistic groups may all claim the right to be consulted. This leads to doubt about the “scale” of Indigenous social organization and “who” might be relevant for consultation. Recent Canadian governments have not helped matters. They have not facilitated effective governance structures within First Nations, Metis, and Inuit communities. As a result, Indigenous authority may be diffuse, centralized, contested, and ambiguous – sometimes within a singular community. They have not been permitted to express their laws in a fashion that would enable them to authoritatively resolve these disputes. This situation is made even more complex when considering relationships across communities. The kaleidoscope of identity has significant implications related to the question of “who to consult” in the case of environmental protection and economic development. The high-profile 2018 conflict between the Unist’ot’en Wet’suwet’en hereditary chiefs and the Wet’suwet’en Band Council in relation to pipeline approval in unceded traditional territories in what is now called British Columbia is an example of these challenges.32 The federal government’s creation of localized entities called Indian bands, Inuit hamlets, and Metis settlements (for assimilatory purposes)33 might be “artificial” in the eyes of some community members. In such instances they orient their political affiliation towards bigger or smaller groupings. Since Indian bands are not necessarily organic, this creates the problem of “who” to consult for development purposes. Bands, hamlets, or settlements do not necessarily correlate with Indigenous peoples’ own views of their constitutional rights, citizenship, and membership. The situation has some similarities to how Africa was carved up by European powers during earlier colonial eras. Artificial borders were drawn. Political jurisdictions were created without sufficiently attending to the linguistic, cultural, social, and other distinctions. This occurred in Canada during the country’s colonization and its implications

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continue today, making colonialism a living reality for peoples who live under these structures.34 Politicians incentivized small band-based communities. Many linguistic, filial, or other Indigenous identity-units were carved up through placing a chief and council over the smallest “band” unit of society. When proponents consult with First Nations, they encounter this fractionalization. Canadian law has created and/or further stimulated multiple membership loyalties in First Nations and Metis communities.35 This has led to a simultaneous rejection and internalization of imposed identities created through the Indian Act or other federal or provincial structures. This complicates consultation. When a proponent interacts with these communities, they never really know which Indigenous identity will be advanced or rejected by individuals and groups. The availability of these multiple identities can even be strategically employed in shifting ways in an attempt to maximize their power.36 For example, First Nations or Metis people might stress the smallest unit of membership as the appropriate party for consultation in some circumstances. In other instances, they “scale up” and insist that a much wider group is relevant for consultation purposes. While varied appeals to identity are employed, they are not necessarily inauthentic. Indigenous claims to consultation are not necessarily formed for the purpose of obstructing or manipulating the Crown or proponents (though this is always a possibility). Bad faith should not be assumed merely because different Indigenous voices claim the right to be consulted (though bad faith might be present in rare circumstances). Indigenous divisions regarding who has the right to be consulted have many sources and explanations. While these divisions might lead to claims that exclude some people (because such sharing could dilute their financial or political advantage in dealing with a proponent), other divisions might seek to further share the benefits across a wider sphere. In the eyes of Indigenous peoples, “who” to consult may be contingent on a host of factors that a proponent may have to untangle with the communities’ help in order to arrive at an answer about who is the proper unit to consult. Like all peoples, First Nations, Metis, and Inuit individuals have both multiple and fluid identities. Canadians may understand this if viewed in other contexts. Canadians may claim political rights to participate at different scales, at national, provincial, and municipal levels. They might also hold citizenship in other nations, as dual citizens. In other instances, Canadians might see their families, employment, or churches as the most relevant unit of social organization. Furthermore, they may not always prioritize the same identity. Choices about how people identify themselves often depend on the context in which they are asked to participate. If proponents had to “consult” with a category of people

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labelled “Canadians,” it might be similarly difficult to determine the relevant “who.” They might emphasize political, social, religious, economic, family, ethnic, or other deeply held identities depending on the circumstances. With these analogies in mind, it should come as no surprise that Indigenous consultation has seemed to expand. Indigenous peoples have many affiliation options. These options have increased as courts have (albeit selectively and haphazardly) peeled back layers of colonialism through constitutional recognition. Therefore, in consultation exercises, First Nations, Metis, or Inuit peoples might emphasize their wider or narrower regional, linguistic, cultural, or social identity depending on complex socio-economic and political contexts. This can lead to confusion amongst parties who are asked to consult and accommodate Indigenous peoples when their rights may be infringed. Fortunately, the Supreme Court of Canada has provided some limited guidance about who to consult in these complex circumstances. Here is a wise practice: in approaching the question of who to consult it is important to distinguish between treaty and Aboriginal rights contexts, as will be described in the next two subsections (ii and iii). In other words, companies have to make an assessment as to whether they are dealing with treaty or non-treaty people. It is also important to remember that this area of law is sui generis and draws on both the Crown and common law’s perspective of these rights, as well as Indigenous peoples’ own conceptions of the “meaning of the rights at stake.”37 ii) Treaty Rights In deciding who to consult in treaty contexts and in order to develop wise practices, proponents should (a) liberally apply Indigenous perspectives, (b) determine agents of consultation on a case-by-case basis, (c) enquire of the group whether a subgroup or individual has been authorized to conduct consultation, (d) look beyond immediate residency in an area, and (e) draw reasonable inferences about groups who are treaty beneficiaries. Each of these issues will be very briefly canvased to identify the types of principles that proponents should apply if they want to successfully develop relationships with Indigenous peoples, and that have a greater chance of preserving the development and protection process throughout. a. who to consult must liberally apply indigenous perspectives

Who to consult about a project in a treaty area can first be determined by remembering that treaties must be given a large, liberal, and generous

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perspective, resolving ambiguities in favour of the Indigenous peoples, and seeing them as the Indigenous peoples would naturally understand them.38 This implies that Indigenous peoples should be treated in a manner that maximizes their interpretive agency in the development and protection enterprise. Large, liberal, and generous approaches should lead to broader consultation possibilities, with more rather than fewer people and communities. While this may cost more in the initial stage of developing the relationship, it should pay off down the road when development and protection plans are implemented because there is a broader base of information in place to support the future processes. Furthermore, the Supreme Court has observed that a treaty must be interpreted in a way that best reconciles the intention of the parties at the time it was formed.39 Reconciliation should also revitalize Indigenous law.40 The implications about who to consult that flow from this framework illustrate the importance of giving deference to non-Crown or non-corporation Indigenous perspectives, particularly as these perspectives are pluralistic and come from many sources within Indigenous communities. Consultation in these instances places a premium on self-identification, and allows for a diversity of voices to be expressed in relationship to economic development and environmental protection. Liberal perspectives of who may be the Aboriginal or treaty rights holder is a wise practice in this field. b. who to consult determined on a case-by-case basis

The courts have said that treaties should “never be interpreted in a vacuum.”41 This means that consultation and accommodation requirements must account for local context and cannot always be determined on a more generalized or universalized basis. The Taylor and Williams case held: “It is of importance to consider the history and oral traditions of the tribes concerned, and the surrounding circumstances at the time of the treaty, relied on by both parties, in determining the treaty’s effect.”42 The Horseman case held that the Court “must be prepared to look at that historical context in order to ensure that they reach a proper understanding of the meaning that particular treaties held for their signatories at the time.”43 It also wrote, “to put it simply, Indian treaties must be given the effect the signatories obviously intended them to have at the time they were entered into even if they do not comply with to-day’s formal requirements.”44 Marshall adopted the point of view of a seventeenth-century “officious bystander” to ensure that modern treaty interpretations accord with their original public meaning.45 The Morris case held that “promises in the treaty must be placed in their historical, political, and cultural

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contexts to clarify the common intentions of the parties and the interests they intended to reconcile at the time.”46 The implication of these holdings for consultation is that each treaty enquiry about who to consult must proceed on a treaty-by-treaty basis. Corporations and proponents must be prepared to be innovative in every negotiation in which they are involved. There is no “one size fits all” in the consultation and accommodation process. The “who” to consult cannot be universalized beyond a specific treaty context. For example, the procedures for determining who is the relevant body for the purposes of Treaty 8 consultation cannot be automatically applied to Treaty 6. Each treaty must be approached on its own terms when discerning which Indigenous parties have a right to consultation. The recognition of local distinctiveness is another wise practice in the field of economic development and environmental protection when dealing with Indigenous peoples. c. who to consult is group-based; however, families or individuals may be authorized as consultation agents

The right to consultation is group-based, though this point may be further nuanced in specific circumstances. The Behn case held: “The duty to consult exists to protect the collective rights of Aboriginal peoples. For this reason, it is owed to the Aboriginal group that holds the section 35 rights, which are collective in nature.”47 In the Behn case the Court held that the individual citizens or members of a Treaty 8 First Nation in the circumstances of that case were not separately authorized by their First Nations to consult with proponents.48 Despite the failure of the Behn claimants to establish a right to consultation, the Supreme Court of Canada left open the possibility that consultation might be delegated to smaller subunits or individuals within the community. The Court wrote in paragraphs 33 and 34: … It may well be that, in appropriate circumstances, individual members can assert certain Aboriginal or treaty rights. Some interesting suggestions have been made in respect of the classification of Aboriginal and treaty rights. For example, the interveners Grand Council of the Crees and Cree Regional Authority propose in their factum, at para. 14, that a distinction be made between three types of Aboriginal and treaty rights: (a) rights that are exclusively collective; (b) rights that are mixed; and (c) rights that are predominantly individual.49

This framing leaves open the possibility that in some circumstances the collective right to consult and accommodate may be delegated to

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a subunit with the First Nation or Indigenous group. Thus, in other instances, proponents must enquire whether a First Nation, Metis, or Inuit group has authorized a subunit or individual as the appropriate agent for consultation purposes. A wise practice in dealing with Indigenous peoples would enquire into whether a family, clan, or smaller unit is empowered to deal with economic development and economic protection in dealing with proponents or corporations on this field. d. residence in an area not necessary to trigger a duty of consultation

In the Mikisew (2005) case a Treaty 8 group who trapped but did not live in an area were found to have the right to be consulted about development in their territory.50 Thus, wise practices in Indigenous economic development and environmental protection should not just search out the group closest to the proposed development. People who live further afield and who use the land for other purposes might have an interest in development and protection which should form part of any strategy to create stronger proponent/Indigenous relationships. e. courts draw reasonable inferences regarding whether a group or person is a treaty beneficiary

Proponents must draw reasonable assumptions in a treaty context about whether a group or person is a treaty beneficiary. To include a group in consultation it seems to be enough if a band or person has Indian Act recognition in an area covered by a treaty.51 This means that proponents can act with a degree of certainty if the people with whom they deal are treaty beneficiaries in any way. iii) Aboriginal Rights and Title When corporations/proponents consider who they should consult they must recognize that treaty rights are considered to be distinct from Aboriginal rights in Canadian law. They have a different source. This can lead to the scope of these rights also being different. Treaties are formed through negotiation and these agreements form the basis for potential rights. On the other hand, Aboriginal rights are formed through Indigenous peoples’ own law and historical connections to land and practices. The common law recognizes these rights when British contact or sovereign assertions were made, and these rights are now constitutionally protected unless they were extinguished by clear and plain government action before 1982. In other words, in determining who to consult in an Aboriginal rights context a proponent cannot just look to a set of past

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negotiations. Aboriginal rights and title protections flow from the very nature of Aboriginal society itself. Thus, in following wise practices in the Aboriginal rights and title ­context the parties need to be aware of the social and political organization of Indigenous communities and accommodate themselves to this. In deciding who to consult in an Aboriginal rights and title context, proponents must do the following: a. Reference section 35(1) of the Constitution; b. Reference Indigenous self-identification; c. Determine historic, continuing, and unextinguished Aboriginal resource and title relationships; d. Be mindful of potential concurrent claims between nation and subunit band claims; e. Be mindful of joint or overlapping claims; and f. Be mindful of claims that may exist but are not proven before the courts. This level of analysis is not something you would ordinarily think a corporation would pursue. Ideally governments and Indigenous peoples would have worked these issues out between themselves and then let proponents know who qualifies for consultation when Aboriginal title and resources are at issue. However, this has not generally occurred. If corporations want to ensure governments that their consultation and accommodation efforts are adequate, they themselves must make judgments using these criteria. Thus, as part of identifying wise ­practices, these issues will be briefly canvased to further understand what proponents should consider in creating better relationships with Indigenous peoples when development is being proposed. a. who to consult must be correlated to section

35(2) Section 35(2) of Canada’s Constitution Act, 1982 states: In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit, and Métis peoples of Canada. At a minimum, proponents need to consider the following groups of people as being entitled to consultation and accommodation if their rights might be impacted by a corporation’s proposal. • Proponents must consult with “Indians.” Among other sources, the category of Indian is a legal term created by Parliament and is generally defined in sections 5–7 of the Indian Act.52 • Indigenous people who are not registered as Indians may also be entitled to be consulted and accommodated. These people have

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sometimes been called non-status Indians. The Supreme Court of Canada recently granted a declaration that “Métis and non-­ status Indians are ‘Indians’ under s. 91(24)” of the Constitution Act, 1867.53 • The Court refused to grant a declaration that “Métis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples.”54 But it did so on the basis that such a declaration “would be a restatement of the existing law” and therefore “lacks practical utility.”55 • Metis people have consultation rights if they can meet the criteria discussed in the Powley case below.56 The honour of the Crown is also relevant in meeting Metis concerns.57 • Inuit are circumpolar people and their Aboriginal rights may be extinguished or modified by contemporary land claims agreements.58 Thus, any rights to consultation they possess would be determined by examining the precise language of their land claims agreements. b. who to consult must include indigenous self-identification

In the Aboriginal rights context, “who” to consult is determined on an intersocietal basis. This means understanding who must be consulted requires looking at the issue from both Indigenous and non-Indigenous perspectives. The Supreme Court of Canada has written that Aboriginal rights must be determined by reconciling Indigenous and Crown perspectives on the meaning of Aboriginal rights.59 This means that a proponent cannot solely apply the Crown’s rules or perceptions in understanding who should be consulted. The development of wise practices means Indigenous peoples’ own views must be given a significant degree of deference as to whether they are entitled to be consulted when development is being proposed. As in the treaty context this ensures that self-identification is relevant in determining whether a proponent is speaking with the proper subjects of consultation. Self-identification as a principle of who is entitled to consultation is reinforced in a Metis context. R. v. Powley held that three principles are necessary for an individual to claim Metis rights: (1) self-identity, (2) an ancestral connection to a Metis community, and (3) acceptance by a modern Metis community.60 An individual within a modern Metis community can claim rights if a distinct group “emerged [in an area] between first contact and the effective imposition of European control.”61 Thus, a wise practice in Metis consultation and accommodation would recognize the necessity of self-identification.

Indigenous Economic Development and Environmental Protection  253 c. who to consult is determined by historic, continuing, and unextinguished aboriginal relationships with resources and territories

When corporations/proponents work with Indigenous peoples, they must understand that groups of persons claiming consultation rights must have historic, continuing, and unextinguished rights to title. Corporations are not academic or Indigenous cultural institutions, and thus must rely on others (primarily Indigenous peoples themselves) to help them understand who historically lived in the area where development is being proposed, whether those people are still present, and whether anything might have happened since historic times which no longer entitles them to their traditional land and resources. This is no easy task. Therefore, a corporation would be wise if it worked with communities and experts to understand who has these kinds of connections. A corporation is unlikely to have developed these resources in-house. When corporations receive reports, they must understand the following categorizations. Historic and Continuing Rights: Aboriginal rights for Indians are based on practices, customs, and traditions that were integral to a distinctive culture prior to European contact.62 Metis rights arise from their integral practices, customs, and traditions that arose after European contact but prior to effective European control in a territory. In an Aboriginal title context, rights are dated from the assertion of Canadian sovereignty in a territory.63 Groups who are entitled to consultation can trace their rights from these dates, and can show a continuity in their practices or connections to the present day.64 Unextinguished Rights: Aboriginal rights and titles must be unextinguished for Indian, Metis or Inuit groups to claim consultation. Extinguishment is determined by the Crown showing that it clearly and plainly intended to extinguish the right or title prior to 1982.65 The standard for what constitutes clear and plain extinguishment is neither clear nor plain, though the Crown must meet a high standard to prove extinguishment.66 Making an assessment about the continuing and unextinguished nature of Aboriginal rights or title requires deference to those with expertise that are outside the corporation, and often outside the government too. Thus, working with Indigenous peoples, consultants, and academics puts the corporation into a situation which they cannot necessarily control. It is easy to see why proponents express frustration with the consultation/accommodation process when external forces drive investment agendas. Risking financial capital when assessments are necessarily contextual does not provide the kind of certainty corporations generally prefer. A wise practice in these circumstances involves

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engaging communities and trusted advisers who are generally not in an adversarial relationship with Indigenous communities. Building on the relationships of trust they have established is the best way to ensure the information received does not skew or hide analysis which is necessary to understand whether continuity and non-extinguishment have been met. d. who to consult may be first nation wide, not merely band-based

As in the treaty rights context, another wise practice in working towards economic development and environmental protection is to understand that Indian bands are not the only parties that may be the proper rights holder. In the Tsilhqot’in Nation case of 2014 the Supreme Court of Canada issued a declaration of Aboriginal title to a group not recognized under the Canadian Indian Act – the Tsilhqot’in Nation. The Crown fought and lost a declaration of title being issued in favour of this heretofore formally unrecognized group. The group is made of up six bands formally registered under the Indian Act.67 Thus, proponents must be mindful that a larger nation may hold exclusive or concurrent rights with bands in a region. e. who to consult could be multinational

It is also important to highlight that consultation and accommodation with Indigenous peoples may transcend specific nations. This is an expansion of the last point made above. In the specific case of Aboriginal title the Supreme Court of Canada has held that it could be held jointly with other First Nations.68 Aboriginal title might also be exclusive to one group but others are entitled to share or use the land.69 Furthermore, Aboriginal resource rights might also be shared on a site specific basis.70 To determine who to consult with, proponents must determine whether other nations have rights to consultation through joint or shared used. Again, this will best be understood by drawing on the insights of Calliou and Voyageur mentioned earlier in this chapter. Attention to local context (rather than standardized and universalized principles and checklists) is more likely to lead to better information which is necessary in making consultation and accommodation decisions which thereby foster healthier relationships. f. who to consult may involve nations or subunits who do not have proven rights

Finally, when it comes to considering Aboriginal rights and title, a proponent must not assume that Aboriginal title or rights do not exist in the absence of a court declaration of legislative recognition.71 The courts have been clear that Aboriginal rights and title are not created by the legislatures or courts.72 They can exist without Crown accreditation. Aboriginal rights are pre-existing rights which have survived since contact

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and the assertion of Crown sovereignty.73 They are based in Aboriginal legal systems and flow from these sources.74 In this respect the source of Aboriginal and treaty rights is independent of the Crown or government recognition and affirmation.75 Thus, it is not always possible to determine in advance whether a specific party possesses an Aboriginal right or title since no Imperial or Canadian authority may have recognized their existence. At the point a proponent approaches an Indigenous group there may be no written formal record or recognition of Aboriginal or treaty rights in an area. Thus, in the Haida Nation case, the Supreme Court of Canada held that the duty to consult may arise “pre-proof.”76 This means that a duty to consult might exist before they are proven in non-Aboriginal forums. It is for these reasons that courts may require proponents or governments to hold back from developing an area until consultation with potentially affected is completed. The Court wrote: “To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.”77 A wise practice in this context is to proceed humbly, given that western or governmental sources may not have the information necessary to determine whether rights may exist in an area subject to future development.78 Listening to Indigenous peoples in these circumstances is a key to understanding the strength of their possible claim and its potential impact of their asserted rights. B) How Can Adequate Consultation and Accommodation Be Determined? Now that we have discussed questions related to who should be consulted and accommodated when economic development and environmental protection are discussed in the context Aboriginal rights, we can now more fully turn our attention to criteria that are being developed to determine the adequacy of consultation. These standards are guides to wise practices because they put proponents in touch with many of the most salient issues that communities, governments, and courts will consider when judging the appropriateness of a corporation’s action. Determining whether consultation/accommodation/engagement is adequate includes the following considerations: a. Remembering corporations are separate from government; b. Remembering engagement is required to avoid or minimize infringement;

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c. Ensuring engagement substantially addresses Indigenous concerns; d. Engagement varies in the circumstances; e. When consent is required; f. Provincial law and/or policy standards; and g. Compensation. a. Remembering Corporations Are Separate from Government When determining adequate compensation and accommodation, the separate roles of government and corporations should be kept in mind. This issue was identified at the outset of this chapter as one of the most salient findings within it. Corporations cannot and should not be burdened with the entire responsibility for building economically healthy communities. True, corporations can play a strong role in avoiding, mitigating, or compensating for environmentally based loss or damages, but governments are the primary parties responsible for long-term rights and title losses. As noted earlier, courts have also been clear that governments, not corporations, bear the ultimate responsibility for consulting and accommodating Indigenous peoples where their rights may be infringed. In the Haida Nation case, the Supreme Court wrote in paragraphs 52 to 56: 52 The Court of Appeal found that Weyerhaeuser, the forestry contractor holding T.F.L. 39, owed the Haida people a duty to consult and accommodate. With respect, I cannot agree. 53  It is suggested (per  Lambert J.A.) that a third party’s obligation to consult Aboriginal peoples may arise from the ability of the third party to rely on justification as a defence against infringement. However, the duty to consult and accommodate, as discussed above, flows from the Crown’s assumption of sovereignty over lands and resources formerly held by the Aboriginal group. This theory provides no support for an obligation on third parties to consult or accommodate. The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments. Similarly, the terms of T.F.L. 39 mandated Weyerhaeuser to specify measures that it would take to identify and consult with “aboriginal people claiming an aboriginal interest in or to the area” (Tree Farm Licence No. 39, Haida Tree Farm Licence, para. 2.09(g)(ii)). However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated. ….

Indigenous Economic Development and Environmental Protection  257 55 Finally, it is suggested (per Finch C.J.B.C.) that third parties should be held to the duty in order to provide an effective remedy. The first difficulty with this suggestion is that remedies do not dictate liability. Once liability is found, the question of remedy arises. But the remedy tail cannot wag the liability dog. We cannot sue a rich person, simply because the person has deep pockets or can provide a desired result. The second problem is that it is not clear that the government lacks sufficient remedies to achieve meaningful consultation and accommodation … 56 The fact that third parties are under no duty to consult or accommodate Aboriginal concerns does not mean that they can never be liable to Aboriginal peoples. If they act negligently in circumstances where they owe Aboriginal peoples a duty of care, or if they breach contracts with Aboriginal peoples or deal with them dishonestly, they may be held legally liable. But they cannot be held liable for failing to discharge the Crown’s duty to consult and accommodate.79

The effect of these paragraphs is to separate government from corporate responsibility when dealing with questions of consultation and accommodation. To help ensure that these distinctions remain clear, consultation/accommodation could be framed as engagement when dealing with third-party delegated responsibilities. The paragraphs above embody the following principles: • The Crown is solely responsible for consultation and accommodation. • Procedural aspects of consultation and accommodation can be delegated to corporations. • A corporation’s profitability should not be responsible for all aspects of consultation and accommodation merely because it has “deep pockets.” • Corporations may have liabilities/obligations to Indigenous peoples for general matters which arise from the course of dealings between the parties – which is why a focus on building good relationships is so important. To summarize: dangers arise when the parties think corporations should act like governments. Indigenous peoples can be misled into thinking the company will solve all their problems. Governments can act as if they are entitled to download all their responsibilities onto corporations when, in fact, legally speaking, they are prevented from doing so. Corporations must ensure that they keep their separateness from governments alive. When governments or communities lose track of this reality, this

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threatens corporate and other business interests. Unrealistic expectations can seriously threaten the company’s relationship with communities when governments do not perform their role, and companies are left “holding the bag” for the governments’ derogation of duty. b. Consultation Is Required to Avoid or Minimize Infringement Corporations and proponents choose a wise course of action when they strive to avoid or mitigate infringement of Aboriginal or treaty rights. This may require substantially adjusting or changing plans if information is received that overburdens Aboriginal or treaty rights practices. Thus, it is important to recognize that co-creating plans for development in certain contexts is a wise path forward. To know whether an infringement is likely, a court would ask whether the Crown activity empowered a proponent to undertake an activity which a. Denies Aboriginal people the preferred means of exercising a right, b. Causes them undue hardship, and c. Is unreasonable.80 While these are formally governmental responsibilities, proponents should ask themselves the same questions when enquiring about the impact of their planned activities. This is because governments will have to be satisfied that proponents have addressed these questions in order to approve a proponent’s consultation processes when the governments delegate this power to them. They should ask these questions in the presence of Indigenous peoples and seek their help when the answers are affirmative. Consultation/accommodation/engagement is required whenever the activities of a proponent would infringe an Aboriginal right. As has been emphasized throughout this chapter, the answers to these questions are discovered by talking with Indigenous communities through consultative processes. c. Consultation Must Substantially Address Indigenous Concerns The courts have written that adequate consultation is determined by “substantially addressing the concerns” of the Indigenous group in question.81 There is no pre-determined objective standard to measure when Indigenous concerns have been substantially addressed. This knowledge is only gained from the potentially affected Indigenous community themselves. Thus, the courts have determined that some guidance about the adequacy of consultation may be taken from the fact

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that the reconciliation of Indigenous sovereignty with the assertion of Crown sovereignty is the goal of consultation.82 This means that the framework of reconciliation should be paramount when engaging with Aboriginal communities. Sharp dealing with Indigenous peoples is not permitted.83 At the same time there is no duty for the parties to agree and hard-bargaining is permitted.84 The determination of whether these standards are met occurs on a case-by-case basis and adequacy will be determined by the idea of “honourable” conduct. A wise course of action would see proponents taking the “high road” in working with Indigenous peoples, and avoiding conduct that later may be characterized as bad faith. d. Varies with the Circumstances Adequate consultation is also determined on a sliding scale before Aboriginal rights or title are proven.85 A proponent (and ultimately the Crown) must examine the strength of the Indigenous group’s claims and the seriousness of the proponent’s project’s impact on that claim.86 Determining the strength of a group’s claim and a projects impact on that claim is an assessment that requires applying the intersocietal standards discussed earlier. Furthermore, adequacy of consultation is determined by “talking together” and being responsively flexible as information from Indigenous communities about strength and impact comes to light. In the Haida Nation case, the Supreme Court placed Aboriginal rights along a spectrum as noted in paragraphs 43 to 44: 43 … At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. “‘[C]onsultation’ in its least technical definition is talking together for mutual understanding”: T. Isaac and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev. 49, at p. 61. 44 At the other end of the spectrum lie cases where a strong prima fa‑ cie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact

260  John Borrows they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases. 45 Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake … Balance and compromise will then be necessary.87

e. When Consent Is Required One of the questions corporations/proponents ask is whether they need the consent of an Indigenous group to undertake development. The answer to that question is: it depends. This question is particularly pressing in light of UNDRIP’s requirement that Indigenous peoples must give free, prior, and informed consent (FPIC) when development affects Indigenous lands and resources. While the Court has not yet considered FPIC standards in its judgments, the Court has placed consultation and accommodation along a spectrum.88 At the low end of the spectrum is a weak claim to Aboriginal and treaty rights in circumstances where the development’s impact would also be non-existent or meagre. At the high end of the spectrum are cases where development would have a high impact and the rights claimed are also very strong. At the high end of the spectrum consent would likely be required, where it would not be necessary (according to the courts) on the low end of the spectrum. Consent is required when a project infringes on Aboriginal title which has been proven in the Court.89 The fact that title might be proven subsequent to a project being approved by the Crown could lead to the cancellation of a project if Aboriginal consent was not obtained.90 “Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”91 Unfortunately, since a government or individual proponent can never be sure if Aboriginal title will be declared after a project’s approval, there is no way to guarantee consultation is adequate absent such consent. Thus, to ensure a project is “litigation-proof” when dealing with lands

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where Aboriginal title might be declared, a wise practice would see proponents seeking consent whenever possible. Of course, there will be instances where Indigenous positions will be unreasonable for economic or other reasons given the profit-margins of the development. However, there will also be many cases where the standard of consent will be more reasonable for all parties concerned because it builds relationships in ways that are more economically and environmentally sustainable. f. Provincial Laws and/or Policies Standards Another way to determine whether proponent consultation is adequate is to follow provincial laws and/or policies that permit proponents to engage with Aboriginal communities as a step towards consultation and accommodation. The Crown has also set policies in each jurisdiction that must also be considered to determine adequate consultation. Federal and provincial policies concerning the delegation of engagement to a third party are not currently at the cutting edge of contemporary legal and policy trends. Governments have been largely reactive to court decisions. The also tend to interpret consultation and accommodation in the narrowest possible way believing that the standards represent both a “floor and ceiling” in the field. The lack of creativity in these instances is astounding. To cede to the courts all authority for setting standards in this field perverts the democratic thinking that we are ruled by courts rather than by reason, persuasion, and judgment, which the courts are supposed to represent. In the absence of sound legislative action, the troubling policies are likely to be continually revised. It is true that jurisdictions are examining the applicability of the United Nations Declaration on the Rights of Indige‑ nous Peoples and that this may enhance legislative action in the field in a way which encourages wise practices. However, it is still too early in the process to determine the focus and enforceability of a legislative agenda driven by UNDRIP. Thus I will not discuss federal and provincial policies in this part of the chapter, where the focus is on describing the existing legal landscape of consultation requirements with Indigenous people. For the moment, I will simply note, at a high level, that governmental consultation/engagement frameworks are driven by the following project participation factors: 1 Preparation 2 Engagement 3 Accommodation 4 Decision and follow-p

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For example, British Columbia has produced a “Guide to Involving Proponents When Consulting First Nations.” The Guide identifies the following steps to engaging in adequate consultation:92 Consultation Procedures Phase One: Preparation 1 Identify First Nation 2 Identify treaties or process agreement(s) 3 Review readily available information 4 Consider consultation levels 5 Decide who will engage First Nation Phase Two: Engagement 1 Provide information and seek input 2 Engage First Nation(s) 3 Complete consultation at appropriate level Phase Three: Accommodation 1 Assess consultation and need to accommodate 2 Identify accommodation options 3 Propose accommodation measure and attempt to reach agreement Phase Four: Decision and Follow-Up 1 Assess consultation and accommodation record 2 Provide decision to First Nation 3 Ensure implementation This Guide has been supplemented with an updated review of legal obligations for the Crown in 2010.93 Other provinces also have guidelines for proponents to follow in determining whether their consultation is adequate.94 The National Energy Board has created procedures for dealing with Indigenous consultation.95 Some jurisdictions have legislation in place which proponents would have to comply with in order to achieve adequate consultation.

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g. Compensation Compensation can be required to adequately consult and accommodate the infringement of Aboriginal and/or treaty rights. Proponents who are prepared to “put money on the table” when dealing with Indigenous economic development and environmental protection will find this is a wise practice. Some of the ways that proponents might deal with these issues include ownership equity participation, which could provide Indigenous groups with a direct stake in the project. “Companies have used various forms of equity participation including: linking participation to project milestones; providing an equity loan to the First Nation; purchasing equity where an external investor provides money through a separate and transparent arrangement with the First Nation; and, loan guarantees.”96 Furthermore, profit or benefit sharing might occur as proponents promise to provide revenues to Indigenous groups for development within their traditional territories.97 Of course, the expenditure of this money has to be justified from both a corporate and Indigenous perspective. The amount of compensation required to secure adequate compensation is a multifactored determination. There is no objective formula to be applied in determining adequacy. In R. v. Sparrow the Supreme Court wrote: Within the analysis of justification, there are further questions to be addressed, depending on the circumstances of the inquiry. These include the questions of whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and, whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented.98

In Delgamuukw the Supreme Court wrote: The economic aspect of aboriginal title suggests that compensation is relevant to the question of justification as well, a possibility suggested in Sparrow and which I repeated in Gladstone. Indeed, compensation for breaches of fiduciary duty are a well-established part of the landscape of aboriginal rights: Guerin. In keeping with the duty of honour and good faith on the Crown, fair compensation will ordinarily be required when aboriginal title is infringed. The amount of compensation payable will vary with the nature of the particular aboriginal title affected and with the nature and severity of the infringement and the extent to which aboriginal interests were accommodated.99

These cases demonstrate that compensation for the infringement of Aboriginal title, rights, or treaties will vary. The factors that must be

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analysed to determine appropriate compensation concern the nature of the right being infringed and the severity of the impact as a result of infringement. Importantly, though the courts rarely mention this, compensation also has to make economic sense and align with the business case that justifies the proponent seeking development in the first place. As noted, compensation is ordinarily a governmental responsibility in Canadian jurisprudence. However, as one of the repeated themes of this chapter notes, confusion arises and relationships between corporations and Indigenous communities can be eroded when the separate roles of corporations and governments are blurred. Nevertheless, governments have been happy to delegate compensation issues to corporations in the procedures they have created to manage their obligations. By “passing the buck” in this fashion corporations have been left with “unexpected burdens” when Indigenous peoples seek compensation. Despite the problems with this allocation of responsibility, it is nevertheless important to consider compensation analogies with non-corporate forms. The Canadian government has some experience dealing with compensation. While the magnitude of financial transfers to Indigenous communities will be much larger than corporations are often prepared to negotiate, public sector examples do tend to show the value of the resource from another perspective. Proponents will operate in the shadows of these examples and their influence on Indigenous and broader public perceptions should not be overlooked. For instance, the James Bay Agreement was concluded in 1975 between the Government of Quebec, the James Bay Energy Corporation, the James Bay Development Corporation, Hydro-Quebec, the Grand Council of Crees, the Northern Inuit Association, and the Government of Canada. The total compensation package was set at $225 million to be paid over twenty years by the Canadian and Quebec governments to the Cree Regional Authority and the Makivik Corporation. Canada and Quebec further provided a total of $9 million in compensation to the Naskapi of Quebec under the Northeastern Quebec Agreement.100 International principles of compensation could be also be a useful resource when resolving compensation actions in the Canadian context. The right of citizens to fair compensation for arbitrary deprivation of property is enshrined under Article 17 of the Universal Declaration of Hu‑ man Rights. Furthermore, it is likely at some point in the future that Indigenous peoples will initiate actions for loss of use and accounting for the profits of their Aboriginal and treaties rights which were misused and appropriated by the Crown.101 This has recently occurred in Australia, where questions of economic and non-economic loss and interest were

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considered.102 While corporations will not likely have to pay damages for unjust enrichment or other such losses, Indigenous peoples’ experience of this looming possibility of such actions against governments will obviously affect the business climate and broader field. The kinds of future questions that will arise may be somewhat similar to the issues considered in this chapter – to whom obligations should be owed, and how these obligations are best met. Some of the future ­questions related to accounting for loss of use might involve: a. To whom should compensation be paid? (Claimants) b. On what basis should compensation be paid? (Formula) c. How should compensation be paid? (Mechanism) d. Who should administer/adjudicate the claims process? (Process) International principles of compensation will likely become a useful resource when considering compensation actions in the Canadian context. The right of citizens to fair compensation for arbitrary deprivation of property is enshrined under Article 17 of the Universal Declaration of Hu‑ man Rights. These issues will soon be on the minds of Indigenous peoples because it is from their territories that vast resources have been drawn, often in unjust ways and through circumstances that are contrary to Aboriginal and treaty rights, or at the least did not uphold the Crown’s honour. Some basic principles of compensation that are useful in the Canadian context are included in an article by John Sheehan, who is summarizing the work of Rost and Collins, Land Valuation and Compensation in Australia. These principles will be quoted at some length to give a flavour of the types of issues that Indigenous peoples might raise when considering the value of their lands and resources that flow from them when dealing with other parties. Sheehan, citing Rost and Collins, provides this overview of these principles: a. The value attributed to the land taken must have regard to the highest and best use to which it can be put. In determining that value, consideration has to be given to all potentialities possessed by the land which contribute to the price it may be expected to realize in free negotiations between willing but not anxious parties to the transaction; it being assumed that each party is fully cognizant of all circumstances which might affect the value either advantageously or prejudicially. b. The amount of compensation payable is to be the value of the land to the owner. That value is not necessarily limited to the market value of the land itself, nor to its value to an acquiring authority; it must

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include all consequential losses suffered by the dispossessed owner as a result of the compulsory acquisition. c. A potentiality to be taken into account is the possibility that the acquiring authority, in friendly negotiation, might be prepared to purchase the land at a higher price than could be expected to be paid by a prospective purchaser unable to take advantage of any special adaptability the land may have which is capable of being exploited only by the acquiring authority. This does not mean that the compensation payable is the value of the land to the acquiring authority. d. Compensation must exclude any enhancement or reduction in the value of the land taken due to the execution or proposed execution of the public work or purpose for which the land has been acquired. e. An amount based on the market value of the property, plus an amount to cover all consequential losses, represents the value of the land to the owner. f. Compensation for losses incurred is abated by the extent of enhancement (if any) in the value of other lands of the owner arising from the construction or proposed construction of the public work for which the land has been taken. Consequential losses may, according to circumstances of particular acquisitions, include various matters of which those set out below are common although not exhaustive examples. i. Adverse effect of the acquisition upon the utility and value of other lands of the owner caused by injurious affection and severance. ii. Loss of profits due to increased working costs. iii. Loss of business goodwill and loss resulting from forced sale of stock, appliances, fixtures and fittings. iv. Removal costs. v. Abortive expenditure incurred for development. vi. Loss of growing crops and the residual value applied to the land. vii. Legal fees and Stamp Duty in connection with the purchase of comparable property.103 One sees in this list the economic considerations that may be involved in Indigenous peoples’ own assessment of their lands and resources. These issues should not be overlooked by any proponent who wishes to conduct business in a manner that potentially infringes Aboriginal and treaty rights. Moreover, Indigenous peoples will bring their own particular economic and non-economic valuations of land and resources to bear when considering compensation.

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It is conceivable that Indigenous peoples’ own unique values will form part of the law of compensation in this field. I draw this conclusion in two ways. First, Canadian law has held that courts should make allowance for any special attachment to the land.104 Second, Canadian law considers Aboriginal and treaty rights to be sui generis, which means they are unique. Their uniqueness derives from the fact that they are formed from both Indigenous and common law sources. As the Court wrote in R. v. Van der Peet: The challenge of defining aboriginal rights stems from the fact that they are rights peculiar to the meeting of two vastly dissimilar legal cultures; consequently there will always be a question about which legal culture is to provide the vantage point from which rights are to be defined … a morally and politically defensible conception of aboriginal rights will incorporate both legal perspectives.105

Indigenous legal perspectives on the value of their lands and resources for compensation purposes will form part of Canada’s future law if the courts continue to apply this case’s framework. It therefore must be something that is at least on the radar for proponents as they deal with economic development when Indigenous rights are at play. C) How Does Indigenous Self-Determination Effect Consultation and Accommodation? One of the most important trends for proponents to consider when dealing with Indigenous peoples concerns how Indigenous peoples are advancing their own governmental and managerial oversight and/or control over their lands and resources. This is the issue of self-determination. While Canadian case law has not explicitly recognized Indigenous self-determination, there is a reasonable case to be made that self-determination is implicit in the recognition of many Aboriginal and treaty rights cases. Thus, corporate wise-practice policy would be most effectively applied if it made an explicit commitment to recognizing Indigenous self-determination. a) The Jurisprudence This is not the venue for detailing the right to self-determination. I have discussed this in greater detail in other publications.106 However, to make this point in an Aboriginal title context we can see possibilities for governance recognition in the Tsilhqot’in case given the evidence it accepted

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related to the proof of title. The sui generis nature means that Aboriginal title cannot be simply a common law property interest. As mentioned in the last section, the sui generis nature of Aboriginal title means that Aboriginal title is composed of both common law and Indigenous legal interests. In the Tsilhqot’in Nation case of 2007 the courts accepted that the testimony of elders and other lawkeepers was an integral dimension of the proof of Aboriginal title’s elements.107 Specifically, Tsilhqot’in Elders testified about the continuity of their ways of life in their own language using their legal traditions.108 Tsilhqot’in law has a pre-existing and continuing force that was prominent in establishing title.109 Indigenous law was key to establishing a sufficiency of Indigenous social organization that was necessary to prove title.110 Tsilhqot’in rules of conduct were central to proving that they historically and presently occupied land in the contested region.111 In making these statements, the Supreme Court implicitly affirmed that Indigenous legal traditions can give rise to enforceable obligations within Canadian law.112 Social organization should be treated as a synonym for self-government.113 When a nation organizes itself socially on a territorial basis, and through its own laws controls land, makes decisions about its use, and excludes others, we should conclude that such a nation governs itself.114 First Nations governance is an important dimension of Aboriginal title. It cannot be proven or exercised without this broader dimension being present. This implicit recognition of Indigenous governance is a developing trend I see in Canada’s law. The Tsilhqot’in Nation case of 2014 built on an earlier case, Delgamuukw, in which the Supreme Court held: “Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes”115 and that “the title-holding group has the right to choose the uses to which the land is put and to enjoy its economic fruits.”116 This law-making power can be exercised before, during, and after Courts or Canadian governments deal with Aboriginal title. b) Examples of Indigenous Economic/Environmental Governance Even more important than the formal law, however, are the steps that Indigenous peoples are taking of their own accord to govern the land and resources that they consider to be associated with their rights. In British Columbia, Indigenous peoples are increasingly running their own economic and environmental assessments.117 For example, the Skeetchestn Indian Band and the Tk’emlúps te Secwépemc around Kamloops, BC, created a single group to represent

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them in dealing with economic development and environmental protections. The Stk’emlúpsemc te Secwépemc Nation (SSN), as they called themselves, formed an assessment body within their governing institutions. SSN empowered a panel of twenty-sixth youth, elders, and individuals from both First Nations, composed from the community’s thirteen historic family groupings, to review mining development around Kamloops Lake. This was an area without a treaty, meaning Aboriginal title and rights are live considerations. The panel considered many issues in their deliberations relating to the proposed Ajax Mine, hearing from fishers, hunters, and elders alongside experts in ethnobotany, hydrology, geology, and other scientific disciplines. Traditional ecological knowledge also played a key role in their work. The SSN panel also heard from accountants, doctors, and lawyers. SSN law was prominent in the process, with a story about the community’s relationship to the Trout Children forming important principles related to the health of the waters in the lake. After an eighteen-month review, the panel rejected the development of the Ajax Mine because it would not be economically and ecologically sustainable in their view. It is not that the community is unalterably opposed to mining. In fact, they have a $30-million agreement with the New Afton Mine, which represents a significant benefit to many in the community. While the development is not without critics, the New Afton Mine operates with an SSN Environmental Monitoring Board in place, with participation from Indigenous community members, industry officials, and government regulators in their work. Thus, proponents should not conclude that Indigenous peoples will not be amenable to development under the right circumstances, but this example demonstrates that Indigenous governance processes will become an increasingly important part of how consultation and accommodation proceed. Taking account of Indigenous law-making processes is a wise practice in economic and environmental terms. The Tsleil-Waututh Nation (TWN) have also exercised a measure of their self-determination in their territory around the Burrard Inlet in Vancouver in matters related to economic development and environmental protection. An environmental assessment was conducted under TWN’s Stewardship Policy to review Kinder Morgan’s pipeline expansion through their traditional territory. The review concluded: [The] proposal does not represent the best use of Tsleil-Waututh territory and its water, land, air, and resources to satisfy the needs of our ancestors, and the needs of present and future generations. It has the potential to deprive past, current, and future generations of our community control and benefit of the water, land, air, and resources in our territory.118

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The process received evidence and testimony from Indigenous, industry, and academic parties, through Kinder Morgan was singled out in the report for not adequately providing requested information. It is another demonstration of the kind of issues proponents must consider when their proposals potentially impact Aboriginal and treaty rights. It shows that the expansion of Indigenous governance has implications for how consultation and accommodation are pursued. The Nisga’a Nation on the Skeena River in northern British Columbia provides another example of the kinds of governance initiatives that corporations and proponents should consider in working with Indigenous peoples. The Nisga’a Nation entered into a comprehensive land claim agreement with the federal and provincial governments in 1999, which provides for a measure of constitutionally protected governance within the treaty. The power to assess projects for their environmental and other impacts is one of the powers they possess under their agreement. In 2014 the Nisaga’a approved a potential liquified natural gas (LNG) project within their territory under their process and rules. While the details are fascinating, what is important to highlight for this chapter’s purposes is that Indigenous governance decisions can lead to arrangements with proponents that consider the relationship between environmental and economic issues in their work. To provide a final example of Indigenous governance as it relates to consultation and accommodation we can turn our attention to the Chippewa of the Thames, south of London, Ontario. As noted at the outset of this chapter, in 2017 the community lost a case before the Supreme Court of Canada dealing with consultation and accommodation in their territory.119 In November of 2016, the Deshkan Ziibiing/Chippewas of the Thames First Nation passed the “Wiindmaagewin Consultation Protocol” for the protection of their lands.120 This is a strong statement of governance in relation to the protection of their lands and resources. Through this document, the First Nation asserts that it shares responsibility for maintaining healthy environments under headings related to government, communication, co-existence, and economy. Principles of environmental governance in the document are as follows: Gdinawendim, Mno-bmaadiziwin, Naaknigewin, Anishinaabe dbendizawin. Principles of environmental communication are outlined as Zgaswediwin, Ginoondiwin, Gii-nenmaasiinaawaan, and Chi-dibaakinigewin. Finally, principles of environmental co-existence and economy are identified as Gdoonaaganinaan, Maatookiiwin, Gnawenjigewin, and Niigaan-inaabiwin. After a detailed discussion of these principles, the Consultation Protocol identifies consultation processes, requirements, and dispute resolution principles. The protocol

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law is twenty-one pages long, with an additional eleven pages of maps and appendices. These principles reveal the contours of a legal tradition that uses land and relationships with that land as resources for regulatory and dispute resolution structures. While it is true that these principles were released to the public after the Chippewa of the Thames First Nations case was decided; they are not new principles. Anishinaabe self-determination as a vehicle for environmental sustainability must be considered by proponents seeking to work with them. A brief excerpt from the document reveals the depth of these convictions: 1 Gdinawendimi: “We are all related.” A basic truth of our creation story is that we are related to everything that shares the world with us. Our original Anishinaabe doodem ancestors: Ajijaak “Crane,” Waabizhesh “Marten,” Bneshiinh “Bird,” Wawashkesh “Deer,” Maang “Loon,” Giigoonh “Fish,” Mko “Bear;” all demonstrate that we humans are related to, that is, are family with, beings who are other than human. That our ancestors shaped our treaties with Britain by inscribing many of those same doodemag on treaty texts indicates that they extended the web of kinship relations to include settlers. We expect that all consultation and discussion with governments and third parties will focus on how the proposed project will foster this relatedness. 2 Mno-bmaadiziwin: “The good life.” We understand that the Creator placed us within our world’s web of spiritual and bio-physical relationships in order for life to flourish, for all to enjoy the world. Life flourishes when we base our relationships on the gifts of the Seven Grandfathers: Nbwaakaawin “wisdom,” Zaagidiwin “love,” chi “respect,” Aakde’ewin – or Zoongide’ewin “bravery,” Gwakwaadiziwin “honesty,” Dbaadendiziwin “humility,” Debwewin “truth.” We expect that all proposals from and discussions with governments and third parties will demonstrate how the proposed project enhances the good life for all our relations. 3 Naaknigewin: “Law”. This measure for our decisions and determinations is the gift of the Creator. We expect that all consultation and discussion with governments and third parties will aim to respect and embody law as the measure for our decisions provided by the Creator. 4 Anishinaabe dbendizawin: “Anishinaabe independence,” or “self-­ determination.” Some of our elders overcame their repressive years spent within the local residential school, and were able to play crucial roles in entrenching the recognition of our rights into sec. 35(1) of Canada’s Constitution Act, 1982. Their personal struggles have

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taught us that we were created to live as an independent people, and are therefore able to ally with, but not to become subject to, other independent peoples. Many British treaty negotiators failed to understand this. Canada’s unilateral imposition of regulations on our people, and its presumptuous administration of our lands, stems from its own consistent failure to understand this. Nevertheless, we have seen in some settler leaders, such as Sir William Johnson and his work at Niagara in 1764, the enduring possibility that our peoples might finally create a relationship of equality. William Johnson’s Two Row Wampum embodies this alliance of equals, each party free to follow its own way without interference, but each also attentive to the wellbeing of the other. We expect that all proposals from governments will respect this most basic tenet of the Two Row Wampum.121 The Wiindmaagewin Consultation Protocol represents another way of engaging with proponents when economic and environmental decision is at issue. As the Protocol demonstrates, Anishinaabe law and governance aspires to embed sustainability in its very structure.122 Parties who are wanting to proactively develop wise practices in working with Indigenous peoples should enquire about both the formal and informal ways that Indigenous laws and values might impact on the community’s decision-making. This will enable corporations and proponents to develop better relationships when they are respectful of a specific community’s own laws. c) UNDRIP and Its Potential Effect on Corporate Indigenous Policy Finally, in applying general observations from our legal framework analysis to understand wise practices when dealing with questions of Indigenous economic and environmental engagement, it is worth reflecting on the place in Canadian law of UNDRIP. Canadian law has not referenced UNDRIP in the Supreme Court. Likewise, Canadian statutory and regulatory provisions have also largely ignored UNDRIP. At the same time, from a future-oriented viewpoint, UNDRIP has a growing relevance for corporate policy in Canada. While there does not seem to be a trend in the judicial realm towards implementing UNDRIP, the Canadian government and the Province of British Columbia have promised to implement its provisions. However, it must be said that UNDRIP is not an international treaty; as a declaration it is not binding on Canada in terms of implementing its provisions123 (though some would strongly argue UNDRIP represents international customary law and as such has force).124

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Nevertheless, Canada has adopted UNDRIP along with other nations in the world (not as a treaty but as a statement of future commitment). Moreover, many Indigenous communities, independent of governments, expect governments and third parties to create relationships with them in accordance with the principles found in UNDRIP. Finally, some corporations in the Canadian context have promised Indigenous peoples that they would operate in accordance with UNDRIP principle in relation to them. There thus seems to be a broader trend towards UNDRIP in an applied context though it is by no means certain how these contours will develop. However, the following UNDRIP Articles will be relevant in pursuing economic and environmental relationships with Indigenous peoples: • Article 18 – participation in decision-making in matters that would affect rights. This article will likely have a relationship to consultation, accommodation from the Haida Nation and Mikisew cases discussed above. • Article 19 – free, prior, and informed consent. This provision will likely have a relationship to forms of consultation and accommodation discussed above – though Indigenous peoples do not generally have a right of veto in Canadian law until after Aboriginal title is recognized as discussed in the Tsilhqot’in Nation cases, and even then the courts have held that it open to the provincial or federal government to justify infringements of Aboriginal title against the wishes of the title-holders. • Article 26 – ownership, use, develop, and control the lands, territories, and resources and state recognition and protection of the same. This provision will likely have a relationship to the principles in the Tsilhqot’in Nation cases described above. • Article 28 – restitution, redress, or compensation. These issues have not been addressed by Parliament, provincial legislatures or the courts, except in the limited way concerning compensation as described above. • Article 29 – conservation and protection of the environment. The Sparrow, Van der Peet, Haida, Mikisew, Delgamuukw, and Tsilhqot’in Nation cases have implemented aspects of these issues, though it is likely that much more will eventually be required for government to reconcile their relationships with Indigenous peoples in appropriate fashions. • Article 37 – recognition, observance, and enforcement of treaties, agreements, and other arrangements concluded with states. So far, Canadian courts or legislatures have not referenced these provisions.

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• Article 40 – access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with states or other parties, as well as to effective remedies for all infringements of individual and collective rights. First Nations have challenged Canadian actions in the Inter-American Commission on Human Rights. An article from the Ha-Shilth-Sa newspaper describes one of these cases as follows: … the Inter-American Commission on Human Rights of the Organization of American States (OAS) will hear a human rights complaint brought by six British Columbia First Nations, charging Canada with the uncompensated taking of their ancestral territory for the benefit of private forestry and development corporations on Vancouver  Island. The Hul’qumi’num Treaty Group (HTG), comprised of the Cowichan Tribes, Lake Cowichan First Nation, Halalt First Nation, Penelakut Tribe, Lyackson First Nation and the Stz’uminus First Nation, has accused Canada of violating the human rights of its 6,400 members by failing to recognize and protect their rights to property, culture and religion, as recognized under the OAS’ principal human rights instrument, the American Declaration of the Rights and Duties of Man.125

A review of these articles demonstrates areas where Canadian law may and may not be compliant with UNDRIP. Therefore, proponents cannot be sure how these provisions might eventually affect them, if at all. UNDRIP is what is called “soft” law and thus UNDRIP only has a persuasive role in public life, but it is not necessarily binding on the state. As a result, it is not generally binding on corporations, either. Yet, as a persuasive document, it should signal to proponents the kinds of action they might undertake to develop best practices. Furthermore, UNDRIP might one day be formally recognized as law by Parliaments, legislatures, and courts in Canada. While companies can be considered separate from the state, companies may have to anticipate and abide by UNDRIP’s precepts at some future date when they are given responsibilities by the state for development activities.126 Former UN Special Rapporteur on the rights of indigenous peoples, Rodolfo Stavenhagen, encouraged the government to give UNDRIP constitutional protection. Subsequent Indigenous Rapporteur James Anaya advocated the same thing. Over the course of his eight-year term, Anaya’s team sent multiple allegation letters to governments with various recommendations to apply UNDRIP in a more express fashion. Governments often respond to these recommendations by arguing that they have already implemented UNDRIP in domestic law. For example, in 2011, the Canadian company First Majestic Silver Corp. received disciplinary letter

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from Special Rapporteur Anaya.127 It was alleged by the tribe and Indigenous rights organizations that First Majestic was mining on sacred land of the Wirikuta people in the hills of San Luis Potosí in Mexico. While this example is extra-territorial from a Canadian perspective, the pressure brought to bear against First Majestic shows the potential effectiveness of soft law to alter development. When people learned about First Majestic’s activities and its alleged contravention of UNDRIP, numerous newspaper articles, documentaries, and protests occurred. It is arguable that the publicity generated by the UN system and UNDRIP forced First Majestic to change its course of action in the region. This is generally how “soft” law works – through indirect means. Canadian proponents would do well to acknowledge these examples. Companies will face the power of UNDRIP as an instrument of soft law. In addition, Indigenous peoples will likely continue to insist government and corporate actions are compliant with UNDRIP. As a result, companies can plan on UNDRIP being used against them if there are challenges to their actions. While there may be dispute about whether UNDRIP is binding in a legal sense, it is nonetheless persuasive and companies will build stronger relationships with communities to the extent that they act consistently with it. In this light, former Special UN Rapporteur James Anaya published an annual/thematic report on extractive industries as it relates to indigenous peoples. It presents far-reaching interpretations regarding best practices for proponents when dealing with the issue of free, prior, and informed consent.128 A key point of the UN report is that Indigenous peoples should have the ability to negotiate with proponents according to their own laws. Paragraphs 26 through 36 discuss the principle of free, prior, and informed consent in this regard. The general rule he encourages is that consent is required for extractive projects within Indigenous territories. Given the invasive nature of many extractive endeavours, Anaya argues that Indigenous rights will likely be infringed upon and thus will require the free, prior, and informed consent of Indigenous peoples under UNDRIP, which he argues is binding on states as customary international law. In his report, Anaya outlines a narrow scope of permissible exceptions to the general rule of acquiring consent. For example, if it cannot be proven that the activities will substantially affect Indigenous peoples or if a valid public purpose can be established along with consideration of necessity and proportionality, the scope of the doctrine of consent will change. It should be noted that in the Canadian context a number of companies have endorsed calls to adopt free, prior, and informed consent as a corporate policy.129 This might be an example of a best practice

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that could be emulated by other proponents. As an example, the Boreal Leadership Council published a report “as part of its ongoing effort to express multi-stakeholder support for the concept of Free, Prior, and Informed Consent (FPIC) in Canada and to promote understanding of, and progress towards, its successful negotiation”: FPIC is commonly used as a short-hand expression to describe the right of Indigenous peoples to offer or withhold consent to developments that may have an impact on their territories or resources. To be true to its definition, FPIC must be obtained without force, coercion, intimidation, manipulation, or pressure from the government or company seeking consent (free); with sufficient time to review and consider all relevant factors, starting at the inception stage, in advance of any authorization for, and continuously throughout the planning and implementation of activities (prior); based on an understanding of adequate, complete, understandable, and relevant information relative to the full range of issues and potential impacts that may arise from the activity or decision (informed); and can be given only by the legitimate representatives of the people affected, with any caveats or conditions stipulated by the people whose consent is given (consent). It must be noted that FPIC cannot exist where a people does not have the option to meaningfully withhold consent.130

The report also reviewed the consideration of corporate policies relevant to FPIC. Several key industry organizations with influence in Canadian extractive sectors have developed guidelines that are influencing the application of FPIC principles in Canada. Some key guiding documents and position statements are summarized below: • The International Council of Metals and Mining (ICMM) has committed to work “to obtain the consent of Indigenous peoples for new projects (and changes to existing projects) that are located on lands traditionally owned by, or under customary use of, Indigenous peoples, and that are likely to have significant adverse impacts on Indigenous peoples.” • The Mining Association of Canada (MAC), has issued a protocol providing guidance on meaningful dialogue with communities, requiring companies to self-report on “community of interest identification,” engagement and dialogue, response mechanisms, and reporting. MAC has also developed an Aboriginal Affairs forum for sharing experiences and developing practical strategies for issues on the ground.

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• The Prospectors and Developers Association of Canada (PDAC) has prepared guidance documents on Aboriginal engagement, but these do not require consent. PDAC provides both a guide and a trainer’s manual for exploration companies. • The Canadian Association of Petroleum Producers (CAPP) notes that the duty to consult and accommodate Aboriginal peoples lies with the Crown, and that ultimately this duty cannot be delegated. CAPP has published a document that provides guidance for industry proponents to take action to reduce the risk of legal challenges on the basis of a failure to consult.131 Finally, the report considered the role of industry as follows: The role of industry in the consultation process is defined in large part by what the government’s regulatory agencies delegate to industry partners. However, some industry organizations and individual companies go above and beyond the legal requirements to ensure that consent is obtained. As Pierre Gratton, President of the Mining Association of Canada, has noted, “companies that do not strive to build healthy relationships with Aboriginal communities do so at their peril.”

The roles that industry representatives may take on to build such relationships and potential consent include: • Supporting Indigenous communities to advance key policy issues, such as resource revenue sharing, with the government. Gratton makes specific reference to this issue in his speech: “BC’s Resource Revenue Sharing policy should be seriously considered by other Canadian governments. And we need to improve and expand policies and programs that take us beyond legal requirements that provide genuine opportunities for participation in mining and other sectors.” • Engaging with Indigenous communities to understand their preferred engagement protocols, culture, values, and rights. Jointly defining the engagement and consultation processes, as early as possible in project planning (e.g., at project exploration phase). • Working to obtain community consent through IBAs may be included in this engagement. Consent does not (as indicated by the ICMM) confer veto rights to individuals or sub-groups. Indeed, IBAs include specific clauses for those instances in which individuals or sub-groups reject a project. • Supporting the review of the project through community controlled research, in particular on the Traditional Knowledge and Use of the

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Indigenous peoples in the region. In addition, social and economic impact assessments are commonly led, or jointly defined, by the Indigenous community in order that the nature and extent of impacts have local resolution. • Financially supporting Indigenous communities’ engagement and participation in negotiations, and their internal technical reviews of project and consultation documents.132 These examples demonstrate how proponents might analyse and implement UNDRIP to enhance their economic relationships with Indigenous communities in ways that respect their environments. While companies may have difficulty committing to principles of free, prior, and informed consent, the foregoing illustrations demonstrates that such uptake is not impossible. Conclusion This chapter has offered an overview of the legal terrain that corporations must navigate in developing wise practices in dealing with Indigenous communities. In Canada, despite the possibility of UNDRIP’s implementation through Parliament, the courts have been the most important player in establishing government obligations to consult with Indigenous peoples, to accommodate their concerns and demands with respect to use of land and resources, and to secure the consent of Indigenous groups in certain circumstances prior to authorizing activities on Indigenous territory. While the courts have clearly stated that these obligations are binding on the federal and provincial governments, not on industry proponents or other third parties, these governments in practice often delegate many of these obligations to proponents. Thus, this chapter has focused on how proponents might act to work wisely with Indigenous peoples when development could affect their rights. While the legal landscape detailed above is complicated, the most effective guiding principle for proponents developing wise practices in engaging Indigenous communities is to build healthy relationships with those communities and to work at securing their consent for any activities that affect lands and resources over which they claim Indigenous rights or title. Again, the overriding message in this work is twofold. First, the development of any wise practices for dealing with Indigenous peoples should highlight the importance of developing good relationships. Second, parties need to do a better job of distinguishing between governments and proponents when developing wise practices in relation to Indigenous

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communities. These points, as wise practices, are summarized in point form as follows: RELATIONALITY: • Highlight the importance of good relationships. • Canada’s legal framework should aim replacing state paternalism with Indigenous empowerment to better act in their own interests. • From a legal perspective, building good relationships should be at the centre of a corporation/proponent’s work with Indigenous peoples. DISTINGUISHING BETWEEN GOVERNMENT AND PROPONENTS: • Overcome failure of the parties to keep their eye on the distinct nature governmental versus corporations’ roles. • Confusion between roles undermines good relations. • Expectations for parties are unrealistic if corporations are expected to fulfil government responsibilities, or if Indigenous communities are expected to act like corporations. • Ensure that the parties remain clear about the distinctions between the parties’ roles. I have argued that corporations will be able to be more responsive to local context if they place their work in this broader light. They must know who to consult with, what constitutes adequate consultation, and how self-determination affects the field. The ideas explored herein should provide proponents with a range of options and the necessary flexibility to respond to local Indigenous conditions in each specific case. Furthermore, the pursuit of these policies in a broad and generous way would also facilitate the resurgence of Indigenous governance, making it possible to determine which economic opportunities First Nations would like to pursue on their own terms, while attending to the necessary environmental protections. This is the basis of wise practice. To return to Calliou and Voyageur’s observation, which has been the basis for this chapter: “Wise practices are best defined as ‘locally-appropriate actions, tools, principles or decisions that contribute significantly to the development of sustainable and equitable conditions.’”133 This is what I have tried to outline in this work. I believe the suggestions I have offered can help produce wealth accumulation for the public good and enhance the following: (1) identity and culture, (2) leadership, (3) strategic vision and planning, (4) good governance and management, (5) accountability and stewardship,

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(6) performance evaluation, and (7) collaborations, partnerships, and external relationships.134 NOTES I would like to thank Lindsay Borrows whose advice and research significantly helped with the initial formulation of this chapter. My co-editors in this book also receive a special thank you for their excellent assistance and ideas. All faults and errors are mine. 1 Article 32.2 at G.A Res. 61/295, annex, United Nations Declaration on the Rights of Indigenous Peoples (13 September 2007) (hereinafter UNDRIP), https://undocs.org/A/RES/61/295: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.” 2 Bill 262, First Session, Forty-second Parliament, 64–65–66–67 Elizabeth II, 2015–2016–2017–2018 HOUSE OF COMMONS OF CANADA, An Act to ­ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. 3 Ibid. 4 Brian Calliou and Cora Voyageur, “A Wise Practices Approach to Indigenous Community Development in Canada” in Cora Voyageur, Brian Calliou, Laura Brearley, eds., Restoring Indigenous Leadership: Wise Practices in Community Development, 2nd ed. (Banff: Banff Centre, 2015) 31 at 43. 5 Ibid. at 45. 6 John Borrows, “Canada’s Colonial Constitution” in Michael Coyle and John Borrows, The Right Relationship: Reimagining the Implementation of His‑ torical Treaties (Toronto: University of Toronto Press, 2017). 7 Josh Nichols, A Reconciliation without Recollection? An Investigation of the Founda‑ tions of Aboriginal Law in Canada (Toronto: University of Toronto Press, 2019). 8 Dwight Newman, Revisiting the Duty to Consult Aboriginal Peoples (Vancouver: UBC Press, 2019). 9 R. v. Sparrow, [1990] 1 SCR 1075 at 1112 (hereinafter Sparrow). 10 R. v. Badger [1996] 1 SCR 771. 11 Haida Nation v. British Columbia (Minister of Forests), 3 SCR 511 (hereinafter Haida Nation). 12 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 SCR 388 (hereinafter Mikisew). 13 Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 (hereinafter Chippewas); Clyde River (Hamlet) v. Petroleum Geo‑Services Inc.,

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14

15 16 17 18 19 20

21

22

23

24 25

26 27

28

29 30

2017 SCC 40 (hereinafter Clyde River); Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54; First Nation of Nacho Nyak Dun et al. v. Government of Yukon 2017 SCC 58. Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 SCR 650; Haida Nation, supra note 11 at para. 51; Paul v. British Columbia (Forest Appeals Com‑ mission), [2003] 2 SCR. Chippewas, supra note 13. Clyde River, supra note 13. Chippewas, supra note 13 at paras. 50–60. Clyde River, supra note 13 at para. 4. Ibid. at para. 49. Peter Forrester, Kent Howie, and Alan Ross, “Energy Superpower in ­Waiting: New Pipeline Development in Canada, Social Licence, and ­Recent Federal Energy Reforms” (2015) 53 Alberta Law Review 419. Cindy Woods, “The Great Sioux Nation v. the Black Snake: Native American Rights and the Keystone XL Pipeli” (2015–2016) 22 Buffalo Human Rights Law Review 67–94. Alastair Lucas Chidinma Thompson, “Infrastructure, Governance and Global Energy Futures: Regulating the Oil Sands Pipelines” (2016) 28 Jour‑ nal of Environmental Law and Practice 355. Terri-Lee Oleniuk and Jeremy Barretto, “Recent Regulatory and Legislative Developments of Interest to Energy Lawyers” (2015) 53 Alberta Law Review 529–82. Brooke Neal, “The Economy, Environment, and Politics in the Canadian Pipeline Regulatory Process” (2016) 22 Law & Business Review of the Americas 425. Martin Papillon and Thierry Rodon “Proponent-Indigenous Agreements and the Implementation of the Right to Free, Prior, and Informed Consent in Canada” (2017) 62 Environmental Impact Assessment Review 216–24. Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 (CanLII), [2018] 2 SCR 765 at paras. 17–18. Ibid. at para. 104: “My colleague would, however, go further, raising – and then leaving open – the possibility that legislation which does not infringe section 35 rights but may “adversely affect” them, might be found to be inconsistent with the honour of the Crown. (paras. 3 and 25).” Behn v.Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 SCR 227 at para. 27 (hereinafter Behn): “The Crown cannot in a treaty contract out of its duty to consult Aboriginal peoples, as this duty ‘applies independently of the expressed or implied intention of the parties; Beckman v. Little Salmon/Car‑ macks First Nation, 2010 SCC 53, [2010] 3 SCR 103, at para. 61.” John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016). John Borrows, “Earth Bound” in Michael Asch, John Borrows, and Jim Tully, eds., Resurgence and Reconciliation (Toronto: University of Toronto

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31

32

33

34

35 36

37

38 39 40

41

Press, 2018) at 49–82; John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002). Sebastien Grammond, Identity Captured by Law: Membership in Canada’s In‑ digenous Peoples and Linguistic Minorities (Montreal: McGill-Queen’s University Press, 2009). Sam Bliss and Leah Temper, “The Indigenous Climate Justice of the ­Unist’ot’en Resistance” in Stefan Gaarsmand Jacobsen, ed., Climate Justice and the Economy (New York, Routledge, 2018) at 87–101. The Wet’suwet’en Nation has five clans: the Gilseyhu (Big Frog), the Laksilyu (Little Frog), the Gitdumt’en (Wolf), the Laksamshu (Fireweed), and the Tsayu (Beaver). Within each clan, houses independently manage their territory through hereditary chiefs. There are thirteen houses within the five clans. At the same time, there are five Indian Act bands located on the territories: Wet’suwet’en First Nation, Hagwilget Village First Nation, Nee-Tahi-Buhn Bandm and the Skin Tyee First Nation. John Tobias, “Protection, Civilization and Assimilation: An Outline History of Canada’s Indian Policy” in James Miller, ed., Sweet Promises: A Reader on Indian-White Relations in Canada (Toronto: University of Toronto Press, 1991) at 127. “The colonizers come to stay – invasion is a structure not an event.” See Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology (London: Continuum International Publishing Group, 1998) at 2. Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 SCR 670. Examples of shifting and stable identities in a Metis context are discussed in Chris Andersen, Métis: Race, Recognition and the Struggle for Indigenous Peo‑ plehood (Vancouver: UBC Press, 2014); Kerry Sloan “Always Coming Home: Metis Legal Understandings of Community and Territory” (2016) 33 Wind‑ sor Year Book of Access to Justice 125. Sparrow, supra note 9 at 1112: “While it is impossible to give an easy definition of fishing rights, it is possible, and, indeed, crucial, to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake.” R. v. Marshall, [1999] 3 SCR 456 at para. 78 (hereinafter Marshall). Ibid. at 14. Indian Truth and Reconciliation Commission, Honouring the Truth, Recon‑ ciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015) at 16: “Establishing respectful relationships also requires the revitalization of Indigenous law and legal traditions. It is important that all Canadians understand how traditional First Nations, Inuit, and Métis approaches to resolving conflict, repairing harm, and ­restoring relationships can inform the reconciliation process.” R. v. Taylor and Williams (1981) 34 O.R. (2d) 360 (Ont. C.A.) 367.

Indigenous Economic Development and Environmental Protection  283 42 Ibid. 43 R. v. Horseman, [1990] 1 SCR 901 at 907. 44 Ibid. 45 Marshall, supra note 38 at para. 43. 46 R. v. Morris, [2006] 2 SCR 915 at para. 18. 47 Behn, supra note 28 at para. 30. 48 Ibid. at para. 31: “But, given the absence of an allegation of an authorization from the FNFN, in the circumstances of this case, the Behns cannot assert a breach of the duty to consult on their own, as that duty is owed to the Aboriginal community, the FNFN.” 49 Ibid. at paras. 33–4. 50 Mikisew, supra note 12 at para. 3: “The modified road alignment traversed the traplines of approximately 14 Mikisew families who reside in the area near the proposed road, and others who may trap in that area although they do not live there, and the hunting grounds of as many as 100 Mikisew people whose hunt (mainly of moose), the Mikisew say, would be adversely affected.” 51 Simon v. The Queen, [1985] 2 SCR 387 at paras. 43–4: “The appellant admitted at trial that he was a registered Indian under the Indian Act, and was an ‘adult member of the Shubenacadie Indian Brook Band of Micmac Indians and was a member of the Shubenacadie Band Number 02.’ The appellant is, therefore, a Shubenacadie Micmac Indian, living in the same area as the original Micmac Indian tribe, party to the Treaty of 1752. “This evidence alone, in my view, is sufficient to prove the appellant’s connection to the tribe originally covered by the Treaty. True, this evidence is not conclusive proof that the appellant is a direct descendant of the Micmac Indians covered by the Treaty of 1752. It must, however, be sufficient, for otherwise no Micmac Indian would be able to establish descendancy. The Micmacs did not keep written records. Micmac traditions are largely oral in nature. To impose an impossible burden of proof would, in effect, render nugatory any right to hunt that a present day Shubenacadie Micmac Indian would otherwise be entitled to invoke based on this Treaty.” [emphasis added]

52 Indian Act, R.S.C., 1985, c. I-5. 53 Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 at paras. 2, 50. 54 Ibid. at para. 54. 55 Ibid. at para. 56. 56 Daniels seems to reaffirm the Powley criteria for purposes of identifying ­ Métis who have consultation rights under section 35; see ibid. at para. 49. 57 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 SCR 623.

284  John Borrows 58 Jennifer Keith, John B. Zoe, and Peter Kulchyski, “An Introduction to the Special Issue on Modern Treaties North of 60” (2015) 35 The Canadian Journal of Native Studies 1. 59 R. v. Van der Peet, [1996] 2 SCR 507 (hereinafter Van der Peet) at para. 42: “...the essence of aboriginal rights is their bridging of aboriginal and non-aboriginal cultures: “The challenge of defining aboriginal rights stems from the fact that they are rights pe‑ culiar to the meeting of two vastly dissimilar legal cultures; consequently there will always be a question about which legal culture is to provide the vantage point from which rights are to be defined … a morally and politically defensible conception of aboriginal rights will incorporate both legal perspectives.” ­[emphasis added] Similarly, Professor Brian Slattery has suggested that the law of Aboriginal rights is “neither English nor aboriginal in origin: it is a form of intersocietal law that evolved from long-standing practices linking the various communities” (“The Legal Basis of Aboriginal Title” in Frank Cassidy, ed., Aboriginal Title in British Columbia: Delgamuukw v. The Queen [Montreal: Institute for Research on Political Policy, 1992], at 120–1) and that such rights concern “the status of native peoples living under the Crown’s protection, and the position of their lands, customary laws, and political institutions” (“Understanding Aboriginal Rights” [1987] 66 Canadian Bar Review 727–83 at 737).

60 61 62 63

R. v. Powley, [2003] 2 SCR 207 at paras. 31–3. Ibid. at para. 17. Van der Peet, supra note 59 at paras. 45–7. Delgamuukw v. British Columbia, [1997] 3 SCR 1010 at para. 114 ­(hereinafter Delgamuukw). 64 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 SCR 256 at para. 45 (hereinafter Tsilhqot’in Nation, 2014); Van der Peet, supra note 59 at paras. 59–65. 65 Sparrow, supra note 9. 66 John Borrows, “Unextinguished: Rights and the Indian Act” (2016) 67 ­University of New Brunswick Law Journal 1. 67 Tsilhqot’in Nation, 2014, supra note 64 at para. 3. 68 Delgamuukw, supra note 63 at para. 158. 69 Ibid. 70 Ibid. at para. 159. 71 Calder v. Attorney-General of British Columbia. [1973] 3 SCR 313 at 318 ­(hereinafter Calder). 72 Guerin v. The Queen, [1984] 2 SCR 335 at 377–8. 73 Sparrow, supra note 9. 74 Delgamuukw, supra note 63 at paras. 112–15.

Indigenous Economic Development and Environmental Protection  285 75 76 77 78

Van der Peet, supra note 59 at para. 119. Haida Nation, supra note 11 at paras. 41, 49. Ibid. at para. 27. For a discussion of humility in dealing with Indigenous issues, see Lindsay Borrows, “Dabaadendiziwin: Practices of Humility in a Multi-Jurdical Landscape” (2016) 33 Windsor Yearbook of Access to Justice 149. 79 Haida Nation, supra note 11 at paras. 52–6. 80 Sparrow, supra note 9. 81 Haida Nation, supra note 11 at para. 40; Delgamuukw, supra note 63 at para. 168. 82 Haida Nation, supra note 11 at para. 20. 83 Ibid. at para. 42. 84 Ibid. 85 Behn, supra note 28 at para. 29: The duty to consult is triggered “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it”: Haida Nation, supra note 11 at para. 35. The content of the duty varies depending on the context, as it lies on a spectrum of different actions to be taken by the Crown: Haida Nation, at para. 43.  86 Haida Nation, supra note 11 at para. 68: “… the scope of the consultation required will be proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.” 87 Ibid. at paras. 43–5. 88 Ibid. at paras. 30, 43–5. 89 Tsilhqot’in Nation, 2014, supra note 64 at para. 2: “Once Aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the Aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group” 90 Ibid. at para. 92: “For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.” 91 Ibid. at para. 97. 92 See Government of British Columbia, “Guide to Involving Proponents When Consulting First Nations” (2014) at 4, https://www2.gov.bc.ca/assets /gov/environment/natural-resource-stewardship/consulting-with-first -nations/first-nations/involving_proponents_guide_when_consulting_with _first_nations.pdf. 93 See Province of British Columbia, “Updated Procedures for Meeting Legal Obligations When Consulting First Nations” (7 May 2010), https://www2

286  John Borrows .gov.bc.ca/assets/gov/environment/natural-resource-stewardship /consulting-with-first-nations/first-nations/legal_obligations_when_consulting_with_first_nations.pdf. 94 For example, Government of Alberta, “Indigenous Relations,” https:// www.alberta.ca/indigenous-relations.aspx; Government of Saskatchewan, “Proponents Guide” (June 2014), http://www.environment.gov.sk.ca /EAProponentConsultationGuidelines; Government of Manitoba, “Indigenous and Northern Relations,” http://www.gov.mb.ca/ana/crown _consultations.html. 95 See Canada Energy Regulator, “Consultation with Aboriginal People (Aboriginal Consultation),” https://apps.neb-one.gc.ca/REGDOCS/Item/ View/522930. 96 Government of British Columbia, Building Relationships with First Nations: Respecting Rights and Doing Good Business at 10, accessed 20 December 2020, https://www2.gov.bc.ca/assets/gov/environment/natural-resource -stewardship/consulting-with-first-nations/first-nations/building _relationships_with_first_nations__english.pdf. 97 Ibid. 98 Sparrow, supra note 9. 99 Delgamuukw, supra note 63 at para. 169. 100 Government of Quebec, James Bay and Northern Quebec Agreement and Com‑ plementary Agreements, 1998, http://www.ainc-inac.gc.ca/pr/agr/que /jbnq_e.PDF. 101 See generally Robert Mainville, An Overview of Aboriginal and Treaty Rights and Compensation for their Breach (Saskatoon: Purich Publishing Ltd., 2001). See also UNDIRP: Article 32 1 Indigenous people have the right to determine and develop priorities and strategies for the development or use of their lands or territories and resources. 2 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and information consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3 States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact. 102 Northern Territory v. Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples (D1/2018), Commonwealth v. Griffiths (deceased) and

Indigenous Economic Development and Environmental Protection  287 Jones on behalf of the Ngaliwurru and Nungali Peoples (D2/2018) and Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples v. Northern Territory (D3/2018) (Australia High Court). 103 John Sheehan, “Towards Compensation for the compulsory Acquisition of Native Title Rights and Interests” (paper delivered at the FAO/USP/RICS Foundation South Pacific Land Tenure Conflict Symposium, University of the South Pacific, Fiji, 10–12 April 2002) at 22–3, http://citeseerx.ist.psu .edu/viewdoc/download?doi=10.1.1.203.4071&rep=rep1&type=pdf. 104 Gerhardy v. Brown (1985) 159 CLR 70. 105 Van der Peet, supra note 59 at para. 42. [emphasis in original] 106 John Borrows, “Tracking Trajectories: Aboriginal Governance as an Aboriginal Right” (2005) 38 University of British Columbia Law Review 285. 107 The argument in the next paragraph closely follows the contours of an argument made in John Borrows, “The Durability of Terra Nullius: Tsilhqot’in v. the Queen” (2015) 48 University of British Columbia Law Review 701. 108 Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700 (CanLII) (hereinafter Tsilhqot’in Nation, 2007) at paras. 149, 167, 176, 360, 362, 381, 397, 399, 403, 431–5. 109 Continuity of Aboriginal of Aboriginal traditions and customs is an integral part of Aboriginal rights law Mitchell v. M.N.R., [2001] 1 SCR 911 at para. 12, and Connolly v. Woolrich (1867), 17 R.J.R.Q. 75 at 79 (Québec Superior Court), affirmed as Johnstone v. Connelly (1869), 17 R.J.R.Q. 266 (Québec Queen’s Bench). Continuity of occupation as part of this broader doctrine is necessary to prove Aboriginal title, Tsilhqot’in Nation, 2014, supra note 64 at paras 45–6, 57. 110 Tsilhqot’in Nation, 2007, supra note 108 at para. 429. 111 Ibid. at paras. 433–4. 112 A similar point is made in Val Napoleon, Tsilhqot’in Law of Consent (on file with author). See also Jeremy Webber, “The Public-Law Dimension of Indigenous Property Rights” in Nigel Bankes and Timo Koivurova, eds, The Proposed Nordic Saami Convention: National and International Dimensions of Indigenous Property Rights (Oxford: Hart, 2013) 79. 113 In Delgamuukw, supra note 63 at para. 159, Chief Justice Lamer observed: “… the foundation of “aboriginal title” was succinctly described by Justice Judson in Calder, supra note 71, where, at p. 328, he stated: “the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries.” [emphasis added] 114 For a discussion of contemporary Tsilhqot’in legal traditions as they relate to governance, see Hadley Friedland, Jessica Asch, Maegan Hough, Renee McBeth, Al Hanna, from the Indigenous Law Research Unit, Tsilhqot’in Le‑ gal Traditions Report (2014) [unpublished, archived with Val Napoleon and

288  John Borrows Tsilhqot’in National Government]. For related materials, see the Indigenous Bar Association, http://indigenousbar.ca/indigenouslaw/. 115 Delgamuukw, supra note 63 at paras. 117 and 166. 116 Tsilhqot’in Nation, 2014, supra note 64 at para. 67. 117 The examples in the following section are also written in John Borrows, “Indigenous Diversities in International Trade and Development” in John Borrows and Risa Schwartz, eds., Indigenous Peoples and International Trade: Building an Equitable and Inclusive International Trade and Investment Agree‑ ment (Cambridge: Cambridge University Press, 2019). 118 Treaty, Lands & Resources Department, Tsleil-Waututh Nation, Assessment of the Trans Mountain Pipeline and Tanker Expansion Proposal at 3, accessed 20 December 2020, https://twnsacredtrust.ca/wp-content/uploads/2015 /05/TWN-Assessment-Summary-11x17.pdf. 119 The next three paragraphs draw, in part, on John Borrows, “This Is How Colonialism Works in Canada: Consultation, Clyde River and the Chippewas of the Thames Cases” (unpublished). 120 Deshkan Ziibiing/Chippewas of the Thames First Nation, “­ Wiindmaagewin Consultation Protocol, Final,” 26 November 2016, https://www.cottfn .com/wp-content/uploads/2016/02/Wiindmaagewin-CONSULTATION -PROTOCOL-Final-Nov-2016–2.pdf. 121 Ibid. at 8. 122 Ibid.; see also, John Borrows, “Anishinaabe Language and Law” (in progress). 123 United Nations Treaty Collections, Definitions, at “Declarations,” https:// treaties.un.org/Pages/overview.aspx?path=overview/definition/page1 _en.xml#declarations “The term ‘declaration’ is used for various international instruments. However, declarations are not always legally binding. The term is often deliberately chosen to indicate that the parties do not intend to create binding obligations but merely want to declare certain aspirations. An example is the 1992 Rio Declaration. Declarations can however also be treaties in the generic sense intended to be binding at international law. It is therefore necessary to establish in each individual case whether the parties intended to create binding obligations. Ascertaining the intention of the parties can often be a difficult task. Some instruments entitled ‘declarations’ were not originally intended to have binding force, but their provisions may have reflected customary international law or may have gained binding character as customary law at a later stage.” 124 James Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 1996). 125 Human Rights Commission Grants Hearing on Hul’qumi’num Land Claim, Ha-Shilth-Sa, 5 October 2011, para. 1, http://www.newswire.ca /news-releases/oas-human-rights-commission-grants-hearing-on -hulquminum-land-claim-508845081.html.

Indigenous Economic Development and Environmental Protection  289 126 Non-binding UN declarations such as UNDRIP are considered “soft law.” Soft law may be used as a source to prove what is required under customary law, however it is not actual or enforceable law. It may indicate what law should become. In order to become law, it needs to meet the requirements of state practice and opinio juris necessary to become customary international law. 127 United Nations General Assembly, “Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya” (A/HRC/18/35), 11 July 2011, https://www.ohchr.org/Documents/Issues/IPeoples/SR/A-HRC -18-35_en.pdf. 128 United Nations General Assembly, “Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya” (A/HRC/24/41), 1 July 2013, http://unsr.jamesanaya.org/docs/annual/2013-hrc-annual -report-en.pdf. 129 Shawn McCarthy, “Resources Firms Endorse Call for Aboriginal Veto Rights to Project,” Globe and Mail, 20 September 2015, http://www .theglobeandmail.com/report-on-business/industry-news/energy-and -resources/resources-firms-endorse-call-for-aboriginal-veto-rights-to -projects/article26447800/. 130 Boreal Leadership Council, Understanding Successful Approaches to Free, Prior, and Informed Consent in Canada. Part I: Recent Developments and Effective Roles for Government, Industry, and Indigenous Communities (September 2015) at 5, 8, http://borealcouncil.ca/wp-content/uploads/2015/09/BLC_FPIC _Successes_Report_Sept_2015_E.pdf. 131 Ibid. at 14. 132 Ibid. at 19. 133 Calliou and Voyageur, supra note 4 at 43. 134 Ibid. at 45.

10 Looking Inward, Looking Outward: Finding Solutions in Indigenous and International Law robert hamilton

The devastating historical and contemporary impacts of colonization on Indigenous peoples in Canada have been widely canvassed.1 These effects are visible in all major social indicators. As the United Nations Special Rapporteur on the human rights and fundamental freedoms of Indigenous people wrote in 2004: “Economic, social and human indicators of well-being, quality of life and development are consistently lower among Aboriginal people than other Canadians.”2 This remains the case despite what the Rapporteur acknowledged to be a vast number of policies and programs aimed at ameliorating the situation. Despite these efforts, governments have not succeeded in the manner many hope and expect they will.3 There are many factors that contribute to this, one of the most important being historic and ongoing suppression of Indigenous autonomy: in the largest group of studies on social and economic development in Indigenous nations, researchers for the Harvard Project on American Indian Economic Development found that economic development outcomes for Indigenous peoples improve where those peoples have a greater degree of self-governing autonomy.4 This is especially true where such autonomy is not only characterized by formally independent institutional structures, but where the constitutional structures of Indigenous Nations reflect “Indigenous norms of political legitimacy.”5 This empirical work confirms what has long been argued by Indigenous peoples themselves.6 State legal systems, however, have circumscribed Indigenous self-determination, imposing invasive legislation and other forms of colonial rule that undermine local decision-making, self-rule, and Indigenous legal traditions. As a result, the extent of Indigenous self-government is determined in many respects by the legal regimes of the states in whose borders Indigenous nations exist. Much of the research focusing on how a greater degree of self-governing authority can facilitate positive social and economic

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development has focused on instances where the state has withdrawn its legal interference. The question of how law can facilitate economic development, then, has primarily been conceived of in terms of how state law can be modified to remove barriers to Indigenous selfdetermination and economic self-sufficiency. This is undoubtedly an important part of the story; the legal apparatus in settler-colonial contexts has limited the ability of Indigenous peoples to be self-governing in many respects. Changing state law, however, can be a slow process and, even where that law has moved beyond its most visibly colonial tendencies, state law continues to exert unilateral authority over many aspects of Indigenous peoples’ lives and control over Indigenous lands and resources. Indigenous peoples have, therefore, often grown impatient with the inability of state law to meaningfully constrain state power despite embracing the rhetoric of rights and equality.7 In response, they have often turned to other sources and bodies of law. The question of the relationship between law, self-determination, and economic justice, then, must not focus only on state law. Canada is a legally pluralistic society.8 Within the territorial bounds of the state, there exist multiple overlapping and intertwined legal orders. Three of these include state law (federal and provincial, municipal, legislative, common and civil), Indigenous law (in its varied and heterogeneous forms), and international law. This chapter reviews examples of Indigenous peoples using Indigenous law and international law in seeking legal solutions to problems in their communities and in structuring relations that can lead to positive social and economic outcomes. Part one analyses three examples of Indigenous law being turned to as alternatives to state law. Part two identifies three examples of Indigenous use of international law. Taken together, these examples illustrate some of the ways that Indigenous peoples displace or challenge state law in furthering Indigenous autonomy and self-determination. They also illustrate how the social and legal spaces where contests over governance occur are shaped by multiple legalities. The strategic identification, articulation, and use of plural legal orders is both a means to achieve, and an expression of, self-determination and agency. The use of Indigenous and international law resists the imposition of state law as the sole determinant of the legal character of given territories. Where multiple legal orders are drawn on, multiple legalities constitute the shared social spaces in which determinants of social and economic justice – such as land and recourse use and modes of governance – are worked out. The examples drawn on in this chapter illustrate how Indigenous peoples negotiate and contest their relationships with the state through the use and deployment of alterative normative and legal orders and, in so doing, constitute spaces

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of Indigenous legality and shared legal spaces where the historical dominance of state law is weakened. 1. Looking to Indigenous Law Before discussing some examples of Indigenous legal traditions being turned to as alternatives to state law, there is a prior question of how Indigenous law can be identified. Defining Indigenous law can be a precarious exercise. There are some fifty distinct Indigenous cultural groups living in about 1,000 communities in Canada.9 There are twelve distinct language families and over fifty languages.10 This vibrant cultural variation gives rise to equally vibrant and distinct legal and normative variation. Further, within any Indigenous nation there exist a range of competing articulations and interpretations of social and legal norms.11 There is no single identifiable body of Indigenous law; the phrase refers, in the Canadian context alone, to a vast array of traditions grounded in a range of specific contexts. The term “law” itself may be inappropriate in some situations, its application prone to skewing the nature of the norms in question.12 Thus, attempts to define Indigenous law may be counterproductive and lead to problematically essentialized and context-blind definitions.13 A more appropriate way to frame the question might be to focus not on what Indigenous law is but, rather, how Indigenous law has been described, understood, and practised, looking to characteristics typical of Indigenous law rather than defining it in the abstract or on the basis of a prior convictions. James (Sákéj) Youngblood Henderson explains some of the features he sees as characteristic of Indigenous law: Across countless generations, comforted in the safety of Indigenous languages, Elders, knowledge keepers and storytellers have continued Indigenous teachings and law. In different languages, at greater length and with more details than I can ever hope to grasp, these teachings have given form to a sacred creation. These teachings reveal the animate processes of creativity in implicate sacred terrestrial consciousness and its ecological forces. These teachings have illustrated a consensual order that is based on endless interrelated transformations that involve all life forms. These oral teachings and symbolic literacies communicate many choices, paths, or roads. They impart the stories of Indigenous life, of our experience, our creativity, and our realizations. They manifest the noblest understanding of why we live with doubt and uncertainty. They are also the stories of our lodges, our villages, our homes, and our families. Most importantly they contain intergenerational solutions and remedies to many of our contemporary quandaries.14

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There is much that can be taken from this passage, from the relationship between law and language to the extension of law to sacred and nonhuman spheres. Of particular interest for this chapter, however, is the final sentence: Indigenous law cannot be considered as tethered to the past. Rather, it is present-oriented and can provide solutions to contemporary problems by drawing on intergenerational legal principles and reasoning.15 Put otherwise, “Indigenous people’s laws hold contemporary relevance for themselves and others, and can be developed through contemporary practices.”16 Like the common law, Indigenous law has ties to the past but is not determined by it. Deviations from past practice do not undermine its legitimacy.17 Indeed, the ability to modify and adapt to changing circumstances is a strength of a legal tradition, and static, inflexible systems of law are unlikely to be able to do the work communities need them to do.18 Given the variation, both between Indigenous nations and within given nations through time, Indigenous law must be considered in light of specific contexts.19 Attention to specific contexts can allow the researcher to move beyond their own preconceptions about what constitutes law, instead adopting an empirical approach to understanding how law is defined, shaped, and practised in discrete cultural contexts.20 As Borrows writes, “[J]udges are susceptible to the danger of only recognizing law within Indigenous societies if they find analogies to concepts within English law.”21 Understanding the limitations of such analogies requires attentiveness to the context from which legal traditions emerged and in which they are situated. The temptation to romanticize Indigenous law or downplay the extent of the damage caused by colonialism also must be avoided.22 On one view, if Indigenous law is to be considered law, it must be able to manage or resolve problems in contemporary society. As Hadley Friedland and Val Napolean write: The logical first step to achieving more specific research outcomes from our engagement with Indigenous laws is to ask more specific research questions of Indigenous laws. This is both practical and in keeping with our commitment to approaching Indigenous laws as laws. When researching Canadian state laws, we bring questions to it that we need answers to. For the most part, these are practical questions about managing or solving problems. Why would we not do the same with Indigenous laws? After all, if these laws are not relevant and useful to real life, why bother?23

This chapter looks at three examples of Indigenous legal traditions being turned to manage or resolve particular problems. This turn inward can take place in response to specific issues, as a solution to

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particular problems, or as an explicit part of a political project in itself as in Leanne Simpson’s formulation calling for a reorientation from “the colonial outside into a flourishment of the Indigenous inside.”24 This articulation of resurgence should be kept in mind as an important aspect of what may be going on, whether as a conscious emphasis or not, in the examples discussed. As Simpson writes, Indigenous resistance and resurgence must be conceived of broadly, as encompassing not only direct action or traditional civil disobedience, but ways of living which protect or reinvigorate Indigenous “languages, cultures, and systems of governance.”25 The examples discussed here were chosen because they are examples of the assertion of Indigenous law in both of these registers: through explicitly legal and political resistance to oppressive state law and through the regeneration of Indigenous social and cultural fabrics in which Indigenous legal traditions are embedded. They are not meant to exhaustively illustrate modes of resistance or ways of practising Indigenous law, nor do they claim to fully represent the views of the nations discussed. Rather, they are singular examples, meant to illustrate some of the myriad ways Indigenous legal traditions are being revived, rearticulated, and regenerated, in opposition to, but also in complex entanglements with, state law.26 The three examples are the establishment of Tribal Parks as an exercise of Indigenous jurisdiction and model of governance, the Secwepmc Lands and Resources Law Project, and the revitalization of the WSÁNEĆ reef net fishery. a) Tribal Parks Tribal Parks are a sui generis form of property ownership and jurisdiction asserted by Indigenous peoples in Canada. They are not parks under Canadian law. They are areas where Indigenous peoples assert authority and jurisdiction to manage lands and resources. Development is not necessarily precluded, but, according to the Indigenous peoples who assert the existence of the parks, any development requires their consent.27 The most well-known Tribal Park in Canada developed in response to a highly publicized dispute over logging in the Cloyoquot Sound area on the west coast of Vancouver Island. The park, which covers the whole of Wah-nuh-jus – Hilth-hoo-is (Meares Island), was created in 1984. It has never been formally recognized by the provincial government. Nonetheless, it was created to stop logging on the island and has been successful in that for over thirty years. In 1985, the British Columbia Court of Appeal granted an injunction in favour of the Clayoquot [Tla-o-qui-aht] and Ahousaht First Nations.28 Justice Appeal Seaton held that:

Finding Solutions in Indigenous and International Law  295 If logging proceeds and it turns out that the Indians have the right to the area with the trees standing, it will no longer be possible to give them that right. The area will have been logged. The courts will not be able to do justice in the circumstances. That is the sort of result that the courts have attempted to prevent by granting injunctions.29

The injunction, which prohibited logging until claims to Aboriginal title were resolved, has had the effect of preventing logging on the island ever since. Though the Court of Appeal did not speak to the existence of the Tribal Park, it recognized that the courts have a responsibility to protect rights from being effectively destroyed before the substance of the claims is litigated. The island continues to be managed as a Tribal Park under the authority of the Tla-o-qui-aht. The Tla-o-qui-aht have since declared three more tribal parks: there are now four tribal parks in Tla-o-qui-aht territory.30 The second park, Haa’uukim, was declared in 2009 in the ­Tofino area.31 The third park, the Tranquil Valley tribal park in Clayoquot Sound, was declared over lands where a possible mine development was being explored by Imperial Metals.32 The fourth park is Esowista Tribal Park. The parks include “a patchwork of different tenures, including Crown (government owned) land, British Columbia Provincial Parks, forest tenures, private lands, and portions of Pacific Rim National Park Reserve.”33 As a result, governance of the parks must be attentive to a number of different perspectives and concerns. The challenges posed by the governance of the parks are addressed through Indigenous law. As Murray and King explain: This group has taken some unique steps to begin to integrate some of the values held within the Tla-o-qui-aht First Nation into the governance of Haa’uukimun [the second park] including 1) the development of specific tools (a land-use plan and zoning); 2) the adoption of guiding principles based on traditional teachings; 3) the building of linkages between the Tribal Parks initiative and other nodes of governance within the larger Tlao-qui-aht First Nation; and 4) the development of partnerships and relationships with actors outside of the First Nation.34

Indigenous law is relied on not only to assert jurisdiction over the territory by creating the park, but also in developing the governance model of the lands. While drawing on traditional teachings and values, it also addresses contemporary issues and incorporates contemporary norms. The first tribal park in Canada, Duu Guusd, was established in 1982 when the House of Assembly of the Haida Nation passed a resolution

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to protect over 227,000 hectares from logging. The park was not recognized as a park by British Columbia until May 2008.35 The Haida retain ongoing “traditional use” rights, including “monumental cedar and cedar bark harvesting, seaweed harvesting, medicinal plant harvesting, hunting, fishing, trapping and food gathering” in Duu Guusd.36 Additionally, the conservancy may be the site “for the physical expression of culture through monumental art such as totems or establishment of traditional style infrastructure such as longhouses.”37 The management plan for the park was created and approved by both BC Parks and the Haida Nation. That is, Duu Guusd is protected and managed by both provincial and Haida law. As the co-created management plan states, “Duu Guusd is now formally protected by both the Haida Nation as a Haida Heritage Site and the Province of British Columbia as a conservancy.”38 The park/conservancy is protected under two separate, overlapping jurisdictions, as a conservancy under provincial law and as a Haida Heritage Site under Haida law. The management plan makes clear that “[t]he Haida Nation and the province through their respective authorities are now working together in managing this area … The Haida Nation and the Province of British Columbia have agreements on land use and reconciliation and use their respective lawmaking authorities to enact this management plan.”39 While the tribal park was created by an exercise of Haida authority over land nearly thirty years before being formally acknowledged by the province, it was eventually recognized in provincial law and came to be co-managed under co-existing jurisdictions. In 2011, the Doig River First Nation announced plans to develop a 90,000 hectare tribal park spanning the British Columbia and Alberta borders in in Treaty 8 territory. The park, which is called K’ih tsaa?dze, is situated in an area with significant oil and gas deposits, primarily accessed by hydraulic fracturing (“fracking”).40 The signs that the Doig River First Nation placed marking the boundaries of the park state that the park is used to “hunt, trap, camp, and teach our youth about our culture.”41 The provincial governments at first declined to enter into negotiations on the project.42 In fact, in 2013 the Government of Alberta ordered the signs marking the park’s boundary taken down and, when the Doig River First Nation refused, the province removed them.43 After a change of government in Alberta, Doig River began negotiations with both the British Columbia and Alberta governments about the park.44 As of this writing, it is unclear what form the park will take and whether the Indigenous jurisdiction exercised in creating the park will be recognized by provincial authorities. Since the park was declared, there has been a drop in development applications from industry. No new development in the park has occurred on the British Columbia side.45

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Dasiqox Tribal Park is an initiative of governments from two Tsilhqot’in Nation communities, Xeni Gwet’in and Yunesit’in. The initiative is supported by the Tsilhqot’in National Government.46 The park is just outside the lands that were recognized as Aboriginal title lands in the Supreme Court’s Tsilhqot’in Nation decision, covering an area over which the Court recognized Tsilhqot’in hunting and fishing rights but not title.47 The park, which covers some 3,000 square kilometers, is governed by Tsilhqot’in law.48 It was created to “construct an alternative vision and land governance system that reflects the values of the local people who live from the land.”49 That is, the governance of the park is to be developed in relation to the practices and values of those who occupy the territory. The park was announced in October 2014 with the raising of a totem pole at Teztan Biny (Fish Lake). The raising of the pole was a celebration both of the Tsilhqot’in victory at the Supreme Court in June 2014 and of the success the Tsilhqot’in Nation had in “protecting this profound culturally and spiritually significant region from a proposed open-pit mining project.”50 The raising of the totem pole that marked the celebratory declaration of the tribal park was also a legal enactment. As explained in a position paper released by the Tsilhqot’in National Government: The totem pole, delivered as a gift to the Tsilhqot’in Nation by renowned Nuu-Chah-Nulth Master carver Tim Paul, is central to the creation of Nexwagwez?an. For the Nuu-Chah-Nulth, the woman, the wolf and the serpent carved in the totem pole represent creation. For many Tsilhqot’in, this is a reminder of Lhin Desh’oysh – a creation story, which highlights how the land was formed. To both the Nuu-Chah-Nulth and Tsilhqot’in, the symbol of the salmon captures a commonality in our approach to maintain clean water in perseverance of our main food source and respective cultures. The gesture of the gift was reciprocal in support of each other’s struggles over the years. It remains a meaningful reflection of the change that is occurring and the event itself is testimony to the importance of our collective relationship to the land and the people who belong to it.51

One of the central elements of the totem pole is the creation story describing how the land was formed. Recalling the relationship between stories of creation and Indigenous legal traditions, the legal import of the pole is clear. Further, the symbol of the salmon speaks to ongoing maintenance of clean water, a social and legal imperative. The raising of the totem pole, then, is a legal declaration. It draws on the past, pulling on stories and traditions (precedents) to find standards and principles and articulates those through a new legal text (the totem itself).

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The park was brought into being by an articulation of legal principles and a solemn legal undertaking. As Councillor Marilyn Baptiste of Xeni Gwet’in First Nation stated, the tribal park is an area that “we are setting aside as a tribal park, to lay down the laws, our traditional laws and laws of the land, in policy.”52 Thus, the park is not a one-time exercise of jurisdiction but the implementation of a “model of governance.”53 The relationship to Canadian law is still being worked out, as the Crown and the Tsilhqot’in Nation are still negotiating how lands will be managed and shared.54 The Nenqay Deni Accord, signed between the Province of British Columbia and the Tsilhqot’in on 11 February 2016, laid out a five-year “reconciliation framework” under which these negotiations are to take place. It is expected that the land will be managed through a system of shared or joint decision-making.55 The park, then, while reflecting and emerging from Indigenous law, does not seek to oust Canadian authority all together. Rather, it seeks to create a reconciliatory framework informed by Indigenous as well as Canadian law. The Tsilhqot’in understand the Supreme Court’s Tsilhqot’in Nation decision to have been the beginning of a new “reconciliatory context between the Tsilhqot’in and the Crown.”56 The Dasiqox Tribal Park is construed as a “reconciliatory pathway” that will reshape the Tsilhqot’in relationship with the Crown. This new relationship, in their view, will be based on an acknowledgment of Tsilhqot’in authority over the land and will recognize “the potential to arrange a new means of governance based on the Tsilhqot’in value-system and higher expectations of legitimacy.”57 As Roger Williams, vice-chair of the Tsilhqot’in government and chief of Xeni Gwet’in, stated in a press release: “In many of our internal discussions we are trying to understand what reconciliation means and how we will live on our territory with the Crown. This is our attempt to acknowledge the history of dispossession, exclusion, displacement on reserves, and the removal of children to residential schools and ultimately set forth a new course.”58 There are three core elements to this approach: “Ecosystem Stewardship, Economic Sustainable Livelihoods, and Cultural Revitalization. The three themes demonstrate a divergence from the Crown’s approach because it involves the Tsilhqot’in perspective of culture and economy in relation to the ecosystem.”59 Tribal parks are sui generis. They are not “parks” as traditionally defined and established by state law and do not fit neatly within current land management frameworks. The parks propose an alternative form of land management which is informed by and gains its legitimacy from Indigenous law. It does not turn away from Canadian law entirely but seeks to engage in a renewed relationship with the Crown. This relationship, however, is to follow an Indigenous framework. The terms of

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reconciliation and recognition are to be formed with Indigenous input. Fundamental to this view is that exclusive Crown control has been held illegitimately. As legal spaces, or spaces constituted through law and legal practices, tribal parks are mutually constituted rather than unilaterally imposed. They are a reflection of multiple, overlapping legalities and a reflection of how legal pluralism can be practised in non-hierarchical ways. b) Secwépemc Lands and Resources Law Project In 2015–16, the Shuswap Nation Tribal Council (SNTC) engaged with the Indigenous Law Research Unit (ILRU) at the Faculty of Law at the University of Victoria to “develop a comprehensive report of principles relating to Secwépemc lands and resources law.”60 Through this process, the SNTC sought to establish a basis for the management of lands and resources in their territory which would be based on Indigenous law but could be easily communicated to non-Indigenous peoples and governments. To this end, the SNTC engaged the ILRU, drawing on the ILRU’s methodology for identifying and articulating principles of Indigenous law. Engaging the ILRU is one distinct approach to revitalizing Indigenous legal traditions so that they may be looked to as an alternative to Canadian law. The ILRU has developed a unique methodology for identifying and articulating principles of Indigenous law. Val Napoleon – founder of the ILRU – writing with Hadley Friedland, frame their research as follows: “How do we begin to engage constructively with Indigenous legal traditions to substantively identify and articulate these Indigenous laws?”61 While recognizing that Indigenous legal traditions are an ongoing and meaningful presence in many peoples’ lives, Friedland and Napoleon also acknowledge that many Indigenous laws are not completely intact, formally employed, “or even in conscious or explicit use.”62 Thus, an important part of their methodology for identifying and articulating Indigenous laws involves an explicit emphasis on recovery and revitalization.63 Borrowing a phrase from Gordon Christie, they describe the process as “gathering up the threads.”64 This calls to mind Leanne Simpson’s description of her project of resurgence as planting and nurturing the seeds of “culture and political systems” that had been left by her ancestors, packed “away, so that one day another generation of Michi Saagiig Nishnaabeg might be able to plant them.”65 Starting from the view that “Indigenous communities do not need any more idealized, romanticized, or simplified representations of Indigenous law,”66 Friedland and Napoleon argue that research into

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Indigenous legal traditions should respond to what communities need “to fulfill their aspirations to use Indigenous laws today.”67 This, they write, requires that the full impact of colonialism and the extensive interdependence between Indigenous and non-Indigenous peoples, governments, and legal orders, be acknowledged. From this starting point, they articulate a four-part research methodology as follows: “(1) Starting with a Specific Research Question, (2) Case Analysis, (3) Creating a Framework – Primer, Synthesis, and Legal Theory, and (4) Implementation, Application, and Critical Evaluation.”68 Through this methodology, the ILRU identifies specific research questions that must be asked of Indigenous law, looking for answers it can provide to specific problems in the world. Friedland and Napoleon are particularly concerned with specific applications of Indigenous law. Canadian law operates in general and particular registers: an abstract normative principle or right, to equality or speech, for example, has little substantive meaning until it is applied by a court in response to particular disputes. Similarly, insufficient attention to the particular application or lived reality of Indigenous law risks Indigenous law becoming “a collection of philosophical generalities” with the result that “the very resources that we desperately need today will be too stunted and overly simplified to use.”69 In identifying sources of Indigenous law, the ILRU looks to law “recorded in many different kinds of stories, in songs, dances and art, in kinship relationships, in place names, and in the structures and aims of the institutions.”70 In this, the methodology draws on John Borrows’ work framing Indigenous stories as “legal cases”,71 building on his approach using an “adapted common-law analysis” to frame specific research questions, such as who authoritative decision-makers are, what procedures are relied on to determine a legitimate response to problems, what principles govern the resolution of conflict between individuals, etc.72 This is the methodological framework that the ILRU used in identifying and articulating Secwépemc law in this project. The Shushwap Tribal Council engaged the ILRU in order to articulate Indigenous law – Secwépemc law – in such a way that it may be applied to resolve specific disputes in their territory. The project developed in response to the Secwepemc Elders Council request that the SNTC “establish a national Secwepemc law to protect our natural resources in a way that would be useful for us today.”73 The project envisions a shift in law and governance within the territory that is geared towards both developing something new and revitalizing something old. The report is a “starting place for a nation-wide governance project.”74 The ILRU’s research analysed thirty stories and conversations with twenty-three Secwépemc witnesses.75 The

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research was broken into eight phases, geared towards two research questions: (1) “How do people within the Secwépemc legal tradition respond to disputes or conflicts concerning lands or resources?” and (2) “Where there aren’t clear disputes or conflicts concerning lands or resources, what relationships, responsibilities, and rights do people within the Secwépemc legal tradition have to land, water, animals used and plants?”76 In response, the ILRU developed “(1) an analysis, (2) a casebook containing all the stories analyzed by the ILRU team, and (3) a glossary of key Secwépemc terms relating to lands and resources.”77 Secwépemc law was articulated in four areas: (1) general underlying principles, (2) Secwépemc legal processes, (3) relationships, responsibilities and rights, and (4) consequences, enforcement, and teaching.78 Further to this, the SNTC is developing a Code of Ethics for environmental decision-making in the nation on the basis of the report.79 As the ILRU notes, the SNTC “recognized that it is critical to also articulate and (re)build Indigenous governance principles and institutional forms to support the actual practice and application of all law.”80 In other words, this type of process represents the beginning of a generative engagement with Indigenous legal traditions which can, over time, restructure law and governance in the nation. c) Reef Net Fishery and WSÁNEĆ Legal Theory The WSÁNEĆ (Saanich) are a Coast Salish people whose traditional territory includes the modern-day Saanich Peninsula on Vancouver Island and many of the surrounding islands. They are signatories to two of the fourteen Vancouver Island Treaties, or “Douglas” Treaties.81 They are currently organized into four First Nations. The “Reef Net” (SXOLE) is a traditional fishing practice of the WSÁNEĆ peoples. Historically, the practice was central to not only their livelihood but also their social and political organization, as outlined below. In the Vancouver Island Treaties, it was agreed that the WSÁNEĆ would be permitted “to carry on our fisheries as formerly.”82 Many WSÁNEĆ people argue that this phrase protects a right to carry on the reef net fishery, that being their primary mode of salmon fishing when the treaty was signed. WSÁNEĆ fishing rights under the Vancouver Island Treaties were recognized by the British Columbia Court of Appeal in 1989, where the court held that a proposed marina development would unjustifiably interfere with the ability of the WSÁNEĆ, specifically of the Tsawout First Nation, to exercise their treaty-protected right in the Saanichton Bay.83 The reef net fishing technique itself, however, includes much more than the bare act of fishing. Historically, the practice was fundamental to

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the WSÁNEĆ way of life and to their identity as a people.84 In WSÁNEĆ teachings, the reef net technique was a gift from the Salmon People, exchanged for a WSÁNEĆ princess.85 Salmon, and the techniques of fishing them, are prevalent in WSÁNEĆ stories of creation. As Nicholas Xumthoult Claxton writes: The Saanich reef net fishery, which was the most important means of subsistence for the Saanich, was more than just a fishing method. The reef net fishery was not only founded on a deep and spiritual respect for the salmon, it also created, fostered, and maintained this relationship with the salmon, and the environment. In addition, it formed the core of Saanich traditional society and was an integral component of Saanich governance. Even more than this, the reef net fishery is representative of the Saanich worldview.86

Thus, reef net fishing not only provided sustenance and trade goods, it was also directly related to WSÁNEĆ modes of governance and principles of WSÁNEĆ law. The fishery as an instantiation of WSÁNEĆ law can be seen in at least two ways. First, the logistics of the fishery required the development of rules governing the use of land, waters, and trade. For example, as Earl Claxton Sr. and John Elliot Sr. write, “a SWÁLET or fishing location of the reef net was not owned. Rather, the families belonged to the location. The location of such a fishery within Saanich territory was a birthright of the Saanich people. SWÁLET was passed down in a traditional way along with the ancient family names. All close relatives belonged to the SWÁLET.”87 The importance of place to WSÁNEĆ identity is articulated by WSÁNEĆ legal scholar Robert Clifford. Of the place where his family traditionally gaffed for salmon (another traditional fishing technique used in shallow waters during the fall salmon runs), Clifford writes: “Goldstream will always be tied to my family and to part of who I am personally, and as a WSÁNEĆ person.”88 Communal fishing regimes require a number of organizational aspects: who can fish, when and where they can fish, what they do with the catch, and so on. All of these require community standards to guide the understanding of accepted and expected modes of behaviour. Those community standards require deliberation, decision-making, and modes of articulation. That is, they require law. As Clifford notes, “Indigenous law and governance is necessarily a community practice.”89 Principles of land and water use at WSÁNEĆ law were developed in part through the regulation and practice of the fishery. A second way that WSÁNEĆ law can be seen in the reef net fishery is in the stories surrounding the fishery. As mentioned, the WSÁNEĆ have stories of creation and cosmology associated with the fish and the

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fishery.90 Clifford explains the relationship between stories and Indigenous law: “they can be used to create a framework for understanding relationships and obligations, decision-making processes, and deviations from accepted standards.”91 The story about the origin of the reef net fishery is particularly instructive. Here there is an exchange between the “salmon people” and the WSÁNEĆ, illustrating extended relations of reciprocity between the human and non-human beings and the agency of the non-human world. As Clifford writes, “[o]f central importance is having an open mind to the effect cosmology may have on conceptions of proper relationships – whether it is to each other, the Earth, the ancestors, or otherwise. This is because (at its most general) law is about relationships.”92 Clifford describes WSÁNEĆ stories as “a framework for thinking and relating.”93 As such, the fact that the origin story of the reef net technology involves a reciprocal exchange akin to kinship between the WSÁNEĆ and the salmon signals the story as a source of legal reasoning and principles concerning the use of the resource. Legal principles governing the use of resources and the interaction between WSÁNEĆ peoples and their broader environment are embedded in these stories.94 In these two distinct ways, the relationship between WSÁNEĆ law and the reef net fishery can be seen. It can also be seen why WSÁNEĆ people argue that the treaty protection of the right to fish “as formerly” included much more than a bare right to access fish, but included the right to engage in all of the various activities, including governance activities, that the WSÁNEĆ would have associated with reef net fishing when the treaty was signed. As Nick Claxton argues: The Douglas treaties explicitly state that those First Nations groups have the “liberty to carry on their fisheries as formerly”. If taken literally, those First Nations’ peoples had a system in place, a system of governance over their fisheries, which indeed formed the core of their traditional societies. With the promise that their fisheries systems were to be protected, First Nation’s leaders likely saw no reason not to enter such agreements.95

The courts have recognized the potential breadth of the fishing right in the treaty and, indirectly, the relationship between the fishery and WSÁNEĆ law. As Justice Hinkson wrote: … it is clear that the word “fishery” may be used to denote not only the right to catch fish but also the place where the right can be exercised. The Indians do not claim in this case any proprietary interest in the sea bed of the bay or a right, contractual or otherwise, to a fishing ground in the bay. The sui generis right they claim is to carry on the fishery as formerly in the bay.96

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In holding that the right to fish included specific locations where that right is practised – and rejecting a proposed development on that basis – the court made an important move. While not acknowledging that the WSÁNEĆ held a proprietary right to the shores or seabed in question can be construed as problematically limiting the Aboriginal title interest, the construction of the fishing right leaves open room for the incorporation of WSÁNEĆ law. Justice Hinkson held that, despite not having claimed a proprietary right to the lands in question, the WSÁNEĆ fishing right was attached to a specific place in such a manner that any interference with the exercise of the right in that particular spot could not be justified. Put another way, the nature of the fishing right incorporated distinct place-based elements that had no correlative in Canadian property law, yet allowed the WSÁNEĆ to prohibit development in the location. As Justice Hinkson stated, it was the sui generis nature of the right which tied its exercise to a specific location. In Canadian law, the sui generis concept is used as a bridge between Indigenous law and common law. Thus, the Court of Appeal recognized that WSÁNEĆ law governing their own fishery could influence the common law to protect that fishery from settler intrusion. Invoking the sui generis nature of the fishing right in question points to the importance of WSÁNEĆ law in shaping the content of the right, including in this case its quasi-proprietary elements. Put simply, “the right to fish, unlike the right to hunt, is not qualified or limited to unoccupied lands or qualified in any other respect.”97 As the trial judge held: “I would hold against any contention that the words “carry on fisheries” mean simply that the Indians would have the right to fish in common with everyone else. I think the words must mean that the Indians will have resort to traditional fishing grounds.”98 More than protecting only a place to fish, the trial judge recognized that “[t]he pursuits of the band, both spiritual and cultural, centre and have centred on the bay” and that, therefore, it is “highly probable that members of the tribe living on Saanichton Bay in 1852 were justified in concluding that Sir James Douglas gave his word that those pursuits would remain unimpaired after what the white man chose to label the ‘sale’ of the Saanich Peninsula.”99 This was echoed by the Court of Appeal, which recognized that the treaty “does protect the Indians against infringement of their right to carry on the fishery, as they have done for centuries, in the shelter of Saanichton Bay.”100 In effect, the Court of Appeal recognized a sui generis proprietary interest whose content was informed by both WSÁNEĆ and Canadian law. It is not the recognition of WSÁNEĆ fishing rights or law by the Canadian courts that is the emphasis of this chapter, however; rather, it is the exercise of WSÁNEĆ law outside the context of Canadian law. In light of

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this, Nicholas Claxton’s work to revive the reef net fishery is of particular interest. Claxton has sought to revitalize the fishery by working with elders to learn the traditional techniques. He has built model size reef nets that he uses in demonstrations, and full size nets that have been used in ceremonial fishing outings. In his view, WSÁNEĆ knowledge can be taught through exploring the physical and spiritual connection to the territory that is embedded in the reef net fishery.101 As he explains: This project is about bringing the reef net fishery back to life in the WSÁNEĆ community and homelands. It is about revitalizing the practices, philosophies, knowledge and belief systems, and spirituality associated with the reef net. It is about making it living again. The project to revitalize the reef net fishing practice was the result of three related initiatives, the construction of a ceremonial reef net, the construction and fishing of a full size modern reef net, and my learning throughout the whole process (and also the learning of all who was involved), which all together comprised the reef net revitalization project.102

The revitalization of the reef net fishery is explicitly linked to the revitalization of WSÁNEĆ law, in part through the revitalization of languages, stories, and ways of knowing associated with the fishery.103 Accepting the importance of both stories and practice to the revitalization of Indigenous law, the revitalization of the reef net fishery and associated language, worldview, and place-based practices, is central to the revitalization of WSÁNEĆ law. d) Conclusions These three examples are a small illustration of the diversity of Indigenous law. They present very different approaches to researching, understanding, articulating, and practising Indigenous law. There are also important commonalities between them. Each, for example, turn away from the state as a source of legal authority and prioritize Indigenous thought and practice as sources of legal and practical reasoning. Each turn to Indigenous law to challenge state law, but also consciously to reinvigorate Indigenous legal traditions. Each does so by emphasizing the linguistic, cultural, spiritual, and epistemological context of the traditions they are working within, as well as the attachment of those traditions to particular physical places. In the case of tribal parks, Indigenous peoples explicitly look to their own political and legal authority as superseding that of the state in respect of the lands in question. Similarly, the Secwepemc nation is working to articulate legal principles governing

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the use of lands and resources within its traditional territory. In the case of the reef net fishery and the revitalization of WSÁNEĆ law, the turn is towards grounded practices that rely on Indigenous stories, language, and knowledge that embody that law. In each case, Indigenous law is living and dynamic, relying on tradition but crafting novel new responses to contemporary issues. As Robert Clifford writes, “Indigenous law (like all law) is a living law that is not static.”104 Indigenous peoples never stopped living on the land and by their own laws, values, and traditions. Therefore, “Indigenous law is not rooted in originalism or fixed on returning to something that once was.”105 As Napoleon and Simpson point to through metaphors of “threads” and “seeds,” the reality of the damage inflicted by colonialism is that Indigenous legal traditions and systems of governance were extensively undermined. The current period, then, is one of regeneration, of “gathering up the threads” or the planting and nurturing of seeds left behind. Each of the approaches outlined above approach this task in distinct ways. In doing so, they present possibilities for alternative ways of conceptualizing and practising Indigenous law and governance. As Glen Coulthard writes, “[T]the best of today’s Indigenous movements … are attempting to critically reconstruct and deploy previously disparaged traditions and practices in a manner that consciously seeks to prefigure a lasting alternative to a colonial present.”106 In this, these approaches represent what John Borrows refers to as Indigenous “conceptual mobility” – the capacity to think about Indigenous laws in ways that challenge the imposition of conceptual boundaries on Indigenous movement, both physical and intellectual.107 Recalling the empirical link between Indigenous social and economic prosperity and the autonomous operation of Indigenous governance structures informed by “Indigenous norms of political legitimacy,”108 the practices outlined above can be seen as laying the foundations for social and economic justice for Indigenous peoples. The development of practices of Indigenous law not only reshape spaces as spaces of Indigenous legality, but they compel the development of shared legal spaces in which governing norms are informed by Indigenous law in the way the literature suggests is essential to the revitalization of Indigenous nations. 2. International Law Another source of law that Indigenous peoples have looked to as an alternative to state law is international law. Historically, international law has not benefited Indigenous peoples. As a Eurocentric body of norms applicable only among mutually recognized sovereign states, international

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law facilitated the dispossession of Indigenous peoples by undermining their status as nations and supporting European claims to sovereignty on the basis of “discovery.”109 This has gradually changed, as international norms have developed that have the capacity to protect Indigenous interests, first in the form of generalized human rights codes, and later in the form of Indigenous-specific rights. As Nigel Bankes has noted, “There have been two parallel streams in the development of international norms recognizing the rights of Indigenous peoples over the last several decades.”110 Bankes explains: One stream has emphasized the development of norms that speak specifically to the situation of Indigenous peoples. The relevant instruments here include the International Labour Organization’s Convention 169 on Indigenous and Tribal Peoples in Independent Countries (hereafter ILO 169), the United Nations Declaration on the Rights of Indigenous Peoples, the complementary draft Inter-American Declaration, and other instruments such as the World Bank safeguards. The second stream has tended to emphasize the application of the general body of human rights norms to the situation of Indigenous peoples. This stream is largely implemented through the creative interpretation and the pro-active application of existing human rights norms rather than the development of new norms.111

In the first stream, international bodies have sought to develop a range of norms that apply directly to the relationship between states and Indigenous peoples, in essence seeking to articulate a common set of Indigenous rights – for example, the right to self-determination – that provide Indigenous peoples a level of protection from states or state sponsored activities (e.g., extractive industries). The second stream deploys existing human rights norms that have developed in the post-war period to Indigenous contexts. While there is overlap between these approaches – the United Nations Declaration on the Rights of Indigenous Peoples (hereinafter the Declaration), for example, can be seen as an example of both – there remains a helpful conceptual distinction between the two. Another distinction is in where these substantive streams are applied. One approach seeks out an international tribunal or institution to arbitrate a dispute on the basis of these norms. A second approach attempts to have international law applied in a domestic context. This section proceeds by first looking at an example of Indigenous use of international tribunals. The second example details the use of international instruments in the domestic sphere, drawing on the Declaration as an example. The third example looks at Indigenous participation in the development of international norms. As with part one, these examples

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are intended to illustrate how the strategic use of non-state law by Indigenous peoples can be seen as a resistance to legal spaces constituted by state law alone. International law, in each of the three ways explored below, can be relied on to mutually constitute shared legal spaces in ways that make room for Indigenous self-determination. a) The Hul’qumi’num Treaty Group The Hul’qumi’num Treaty Group (HTG) is a group of six Coast Salish First Nations (Cowichan, Chemainus, Penelakut, Lyackson, Halalt, and Lake Cowichan) on Vancouver Island.112 In the nineteenth century, upwards of 80 to 85 per cent of their traditional territory was sold by the government without consultation or consent.113 The HTG describes the loss of their traditional territory as the “Great Land Grab.”114 The HTG was formed in 1993 with a mandate to negotiate with Canada and British Columbia through the formal modern treaty negotiation process. Thus, the group has worked, and continues to work, within Canadian law. The group has also looked to international law. In 2007 the HTG, along with the Indigenous Peoples Law and Policy Program of the University of Arizona, lodged a complaint against Canada with the Inter-American Commission on Human Rights (IACHR). The scope of authority of the IACHR and the sources of law it may draw on have expanded considerably since its inception in 1959. In 1965 the commission was authorized to examine complaints or petitions regarding specific cases of human rights violations.115 The American Convention on Human Rights was adopted in 1969 and entered into force in 1978. It has been ratified by the vast majority of countries in South and Central America.116 The sources of law applicable at the IACHR include the American Declaration of the Rights and Duties of Man (ADRDM) and the American Convention on Human Rights (ACHR).117 With respect to Indigenous territorial rights, Article XXIII in the ADRDM 118 and Article 21 in the ACHR119 are particularly relevant. These documents are interpreted “in light of the provisions of the International Labour Organization (ILO) Convention No. 169, the United Nations Declaration of the Rights of Indigenous Peoples, the Draft American Declaration of the Rights of Indigenous Peoples and other relevant sources.”120 In the view of the IACHR, these sources of law all “compose a coherent corpus iuris that defines the obligations of OAS Member States with regard to the protection of Indigenous property rights.”121 This extends to Canada, in the commission’s view, even though Canada has not signed or ratified the ACHR (despite having been a member of the OAS since 1990).122 The IACHR also considers ILO Convention 169 pertinent in interpreting American

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human rights norms even where the state in question is not a party to the convention.123 These sources of law formed the basis of the claim brought by the HTG. In the petition to the IACHR, the HTG alleged that Canada violated the human rights of the HTG because of the absence of demarcation, established boundaries and recording of title deed to their ancestral lands; the lack of compensation for HTG ancestral lands currently in the hands of private third parties; the granting of licenses, permits and concessions within ancestral lands without prior consultation; and the resulting destruction of the environment, the natural resources and of those sites the alleged victims consider sacred.124

Specifically, the HTG asserted that Canada violated Article XXIII (right to property), Article XIII (right to benefits of culture), Article III (right to religious freedom and worship), and Article II (right to equality before the law) of the American Declaration of the Rights and Duties of Man. Against the requirement of Article 31 of the Rules of Procedure of the Inter­American Commission on Human Rights, which requires that all domestic remedies be exhausted as a matter of standing, the petitioners argued that domestic legislation provides no adequate remedies and that other modes of redress are prohibitively costly.125 These other remedies include litigation and the British Columbia Treaty Process. The HTG specifically targeted three aspects of domestic remedies: the cost of both pursuing remedies in both litigation and negotiation, the “extinguishment clauses” in modern treaties, and the lack of remedies where traditional territories are held by private parties. The commission summarized the HTG’s objections: [T]he process has not been able to produce any results due to the fact that the State is not willing to conduct negotiations involving lands in private hands or to discuss compensation for the loss of ancestral lands. The petitioners allege that the State makes reaching these agreements contingent on the Indigenous peoples not filing lawsuits based on any issue object of the negotiations while the negotiations are being conducted or after a treaty has been ratified; otherwise, the process of negotiation would end or the Indigenous peoples would have to compensate the State for any lawsuit filed afterwards. The petitioners explain that the imposition of those conditions is part of the policy of “extinguishment” or “renouncement” pursued by the State, which they consider discriminatory toward Indigenous peoples due to the fact that, under this government policy, the benefits they gain through negotiated treaties are obtained in exchange for recognition of

310  Robert Hamilton the rights of the Indigenous peoples to only a reduced portion of the ancestral lands in question, and without any possibility of reclaiming the rest of their ancestral lands in the future.126

On top of this, the HTG argued that the high cost of seeking legal remedies in the domestic context makes it functionally impossible.127 The state argued that the allegations against it were not violations of human rights, that the HTG had not exhausted available domestic remedies, and “that the Hul’qumi’num peoples have sufficient legal remedies to secure the lands necessary to preserve their culture and their way of life” in domestic Canadian law.128 The state emphasized the British Columbia Treaty process as an important, and ongoing, domestic legal solution. In respect of traditional lands held by private owners, the state posited that such lands could be purchased where owners were willing to sell, an arrangement the state construed as allowing “for consideration of the interests of third parties who may be affected.”129 Further, the state argued that Aboriginal title litigation was a viable option for the HTG, that the availability of judicial review of decisions affecting their lands and resources was evidence of the availability of domestic remedies, and that petitions for compensation where lands were wrongly taken were a possibility.130 Finally, the state contended that many of the allegations were inadmissible as they were based not on the American Declaration of the Rights and Duties of Man but on international instruments which Canada was not a party to (such as the American Convention on Human Rights, the United Nations Declaration on the Rights of Indigenous Peoples, and the Draft American Declaration on the Rights of Indigenous Peoples).131 The commission found that it was competent to hear the petition.132 The commission noted that the Article 31(2) of the Rules of Procedure of the Commission lay out three instances where the requirement that the remedies available in domestic law be exhausted: (1) where domestic legislation “does not afford due process of law for the protection of the right or rights that have allegedly been violated,” (2) where the petitioning party has been denied access to available remedies or otherwise prevented from accessing and exhausting them, and (3) if there has been “unwarranted delay” in providing a final judgment on the remedies available at domestic law.133 The commission began its analysis by looking at the treaty negotiation process, arguing: With regard to the negotiation of treaties under the BCTC, the Commission notes that the State promotes that process as an ideal mechanism to address, in a comprehensive manner, the territorial claims of Indigenous

Finding Solutions in Indigenous and International Law  311 peoples without having to incur the high financial costs or meet the legal and technical requirements necessary to carry out litigation. Therefore, the IACHR considers that the HTG’s use of this resource is an important reference point to evaluate the exhaustion of remedies by the petitioners.134

In this, the IACHR noted that the HTG had been engaged in the treaty negotiation process since 1994. The commission noted that the central elements of HTG’s petition, which sought 1) legal recognition and/or restitution of traditional territories, including lands in the possession of private parties and, 2) the creation or implementation of a process of prior consultation to protect lands and resources from the actions of third parties, had been brought to the attention of official parties through the treaty negotiation process.135 Thus, the commission concluded that the BCTC process has not allowed negotiations on the subject of restitution or compensation for HTG ancestral lands in private hands, which make up 85% of their traditional territory. Since 15 years have passed and the central claims of the HTG have yet to be resolved, the IACHR notes that the third exception to the requirement of exhaustion of domestic remedies applies due to the unwarranted delay on the part of the State to find a solution to the claim. Likewise, the IACHR notes that by failing to resolve the HTG claims with regard to their ancestral lands, the BCTC process has demonstrated that it is not an effective mechanism to protect the right alleged by the alleged victims.136

The treaty process was determined not to be an effective domestic remedy as it failed to provide a remedy in a timely manner. The commission further held that Indigenous groups faced considerable difficulties in accessing the domestic legal remedies purportedly available to them.137 This was based in part on the fact that at the time of the decision, no judgments of the Canadian courts had “resulted in a specific order by a Canadian court mandating the demarcation, recording of title deed, restitution or compensation of Indigenous peoples with regard to ancestral lands in private hands.”138 It should be noted that this was prior to the judicial declaration of title in Tsilhqot’in Nation.139 It is not clear, however, that this would modify the position of the commission. There are at least two reasons for this. First, the commission notes the considerable cost of litigation coupled with the uncertainty of achieving a result that would provide remedies that were “effective under recognized general principles of international law.”140 Second, the commission noted that domestic Canadian law has few remedies available where lands are held by third parties. On this later point, in

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particular, there is considerable reason to be sceptical that Tsilhqot’in Nation has meaningfully shifted the law. The “third party interest” problem was not dealt with in decision, as the Tsilhqot’in left privately held lands out of their title claim. As a result, the reasoning in the Ontario Court of Appeal’s decision in Chippewas of Sarnia decision, where the Ontario Court of Appeal (ONCA) relied on principles of equity to dismiss the Chippewas’ claim, may still prove persuasive in barring a title claim to privately held lands. There are a number of reasons to question the applicability of the decision.141 Yet the Supreme Court’s seeming support for the decision in Weywaykum means there is considerable uncertainty surrounding the availability of remedies in the circumstances. The reasoning of the IACHR and the IACtHR (Inter-American Court of Human Rights) regarding lands held by third parties is the clearest reason to lodge claims in those venues rather than in domestic Canadian courts. In particular, the IACtHR has explicitly discussed the balancing of interests between Indigenous title claimants and third parties. The Supreme Court has recognized that it is possible for third-party interests to legitimately infringe on Indigenous land rights. In the Yakye Axa case, the Court held that such infringements “must be based in law, be strictly necessary, serve “a legitimate goal in a democratic society” and “be proportional to that goal.”142 This requires a “case by case” assessment of “the consequences that would result from recognizing one right over the other.”143 This is a similar proportionality analysis as would be undertaken by a Canadian court in assessing an infringement.144 The IACtHR jurisprudence is more robust than its Canadian counterpart in its explicit emphasis that private interests do not necessarily need to be protected at the expense of Indigenous interests. That is, “the Court has affirmed that the rights of third parties should not be assumed to take precedence simply because the state has granted them a concession to the disputed land or because they are currently in possession of land from which the Indigenous claimant has been dispossessed.”145 Though the black letter of the Canadian case law would seem to suggest a similar approach, at least insofar as Aboriginal title is a constitutionalized interest derived from prior occupation that could not have been extinguished by inconsistent Crown grant,146 there is considerable uncertainty regarding the Courts’ approach on account of the Chippewas of Sarnia decision. Nowhere have the Canadian courts explicitly addressed the potential need to balance private property and Aboriginal title interests.147 This point has been made explicit by the IACtHR. In particular, the IACtHR has held that the abstract legal recognition of Aboriginal title does not constitute a legal remedy if it is rendered meaningless in application. The Court held:

Finding Solutions in Indigenous and International Law  313 … both the private property of individuals and communal property of the members of the Indigenous communities are protected by Article 21 of the American Convention. However, merely abstract or juridical recognition of Indigenous lands, territories, or resources, is practically meaningless if the property is not physically delimited and established.148

As mentioned above, the IACtHR relies on a proportionality analysis similar to that developed in common law jurisdictions in assessing what constitutes a “legitimate” infringement of an Aboriginal title interest.149 Crucially, however, the Court states that the same analysis should apply to third-party interests: when Indigenous communal property and individual private property are in real or apparent contradiction, the American Convention itself and the jurisprudence of the Court provide guidelines to establish admissible restrictions to the enjoyment and exercise of those rights, that is: a) they must be established by law; b) they must be necessary; c) they must be proportional, and d) their purpose must be to attain a legitimate goal in a democratic society.150

In assessing the competing claims, states must take into account the fact that Indigenous land rights “encompass a broader and different concept that relates to the collective right to survival as an organized people, with control over their habitat as a necessary condition for reproduction of their culture, for their own development and to carry out their life aspirations.”151 As a result, states must consider not only the unique importance that land holds to many Indigenous peoples in assessing the proportional impacts on the parties, but also that, owing to this unique importance, a number of other basic rights be at issue where land is concerned.152 As a result “restriction of the right of private individuals to private property might be necessary to attain the collective objective of preserving cultural identities in a democratic and pluralist society, in the sense given to this by the American Convention; and it could be proportional, if fair compensation is paid to those affected pursuant to Article 21(2) of the Convention.”153 The IACtHR is careful to note that this does not mean that Indigenous interests will prevail in every case.154 Where it is determined that existing third-party interests cannot be disturbed, however, compensation must be provided and must be guided by considerations of the meaning of the land for the Indigenous peoples in question. Thus, the payment of compensation or provision of alternative lands is not to be done at the absolute discretion of the state, but must be guided by “a comprehensive interpretation of ILO Convention

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No. 169 and of the American Convention” and “there must be a consensus with the peoples involved, in accordance with their own mechanism of consultation, values, customs and customary law.”155 Here again is an important supplement to Canadian law. While Canadian law requires consultation, it does not require that consultation meet the standards of Indigenous law. In Chippewas of Sarnia, the ONCA held that to compel negotiation would be a “novel remedy.”156 The IACtHR does not share this concern.157 In the Yakye Axa case, the Court ordered both the return of a substantial tract of land and the establishment of a community development fund and program to focus on the “implementation of education, housing, agricultural and health programs for the benefit of the members of the Community” and the creation of an “implementation committee” tasked with guiding the fund. The committee was to include three people, one appointed by each party, the third agreed to by the appointees.158 This type of judicial oversight is well within the purview of domestic courts if they have the desire to seek sustainable remedies. The issue in the cases before the IACtHR was not necessarily that the outline of the domestic legal regime was inadequate. The problem was implementation. The Court cited the commission as saying “Paraguayan laws in force make up a favorable legal framework for Indigenous peoples; however, they cannot by themselves guarantee the rights of such peoples.”159 This is especially true where conflict with third-party interests are concerned. The position of the IACHR is clear. It states that “Indigenous and tribal peoples have a right to be protected from conflicts with third parties over land, by acquiring prompt title, delimitation and demarcation of their lands without delays” and a right to “the establishment of special, prompt and effective mechanisms to solve legal conflicts over ownership.”160 Indigenous peoples have the right not only to have their “title” recognized as an abstract legal right that may someday be made out, but also “have a right to have their territory reserved for them, and to be free from settlements or presence of third parties or non‐Indigenous colonizers within their territories. The State has a corresponding obligation to prevent the invasion or colonization of Indigenous or tribal territory.”161 Two important practices can be drawn from this example. First, there may be benefits to seeking decisions from international tribunals such as the IACtHR, even though such bodies cannot resolve conflicts between Indigenous title and private ownership at the domestic level without formal jurisdiction.162 In the HTG case, we see an attempt to move around Canadian law by seeking out a decision-maker, in this case the IACHR, who can exert influence on the Canadian state to meaningfully apply its

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domestic law to comply with international obligations. It is an attempt to have Canada held to account for its failure to translate abstract land rights into the actual recognition and implementation of those rights on the ground and, in so doing, to create normative and political pressure on the Canadian state. Second, the IACtHR laid out reasoning that could be adopted by Canadian courts. The Court argued in Sawhoyamaxa Indigenous Community v. Paraguay, for example, that: the Court considers that the fact that the claimed lands are privately held by third parties is not in itself an “objective and reasoned” ground for dismissing prima facie the claims by the Indigenous people. Otherwise, restitution rights become meaningless and would not entail an actual possibility of recovering traditional lands, as it would be exclusively limited to an expectation on the will of the current holders, forcing Indigenous communities to accept alternative lands or economic compensations.163

Such a statement from the Canadian courts would put governments on notice and encourage the fair and timely negotiation of claims. John Borrows has argued for just such an approach from Canadian courts, an approach which would carefully balance competing interests while moving away from an understanding of private property interests as sacrosanct and inviolable, a characterization which inevitably derogates from Aboriginal title interests.164 Similarly, Kent McNeil has argued that the courts should work to facilitate negotiated solutions to such conflicts and that Indigenous peoples must be compensated where it would be unjust to dispossess third parties.165 Moving disputes to the international arena can result in the development of legal reasoning that can be drawn on domestically, either by courts or, perhaps more likely, those trying to convince courts of a particular position. Thus, even where there are no specifically enforceable remedies, legal reasoning, principles, and rhetoric may be developed internationally that can be used to shape discourses at the domestic level. Further, international law can create political and moral pressure on domestic governments, pressuring state legal systems from above. b) The United Nations Declaration of the Rights of Indigenous Peoples and International Law in the Domestic Arena A second approach to the use of international law is to work to have it applied in the domestic context to reshape domestic law. The most powerful international norms pertaining to Indigenous peoples are those laid out in the United Nations Declaration on the Rights of Indigenous Peoples.166

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The implementation of the Declaration at the domestic level has been the subject of much discussion and debate. It is widely agreed that the Declaration will have limited impact domestically “unless actions are taken to fully implement it at national legal and policy levels.”167 Much of the discussion in Canada has centred on the questions of the extent of the legally binding obligation the Declaration places on Canada and what the most effective modes of implementation would be. This section outlines two distinct routes that have been taken: attempts to have the Declaration applied domestically in the courts and moves to have it implemented through legislation. Before moving into that discussion, it will be helpful to briefly outline some of the legal issues that provide the background to disputes over implementation through judicial and legislative avenues. On one view, as a resolution of the UN General Assembly, the Declaration is not “binding” international law. This type of legal instrument is not, unlike a treaty or convention, binding at international law upon parties who have supported it. As a result, nothing in the Declaration compels parties who have adopted it to take steps to implement it at the domestic level. Further, the Declaration cannot be received in domestic courts by way of “the interpretive presumption of conformity with international law” or by the “incorporation of customary international law by the common law.”168 The terms of the Declaration would only be applicable within Canada if given force through legislation.169 Competing arguments suggest that this is an unduly narrow approach that neglects the fact that many of the individual provisions of the Declaration are drawn from existing international law instruments which may well be binding international law, that individual provisions may have acquired the status of customary international law and are therefore enforceable in common law courts, and that, while resolutions of the UN General Assembly may not be binding, declarations have a a special significance and are given more normative and interpretative weight than other resolutions. I return to this line of argument below. To date, courts in Canada have adopted the narrower approach. As the British Columbia Supreme Court noted in 2014, the federal government had, upon signing, “stated that the Declaration is aspirational only and is legally a non-binding document that does not reflect customary international law nor change Canada’s domestic laws.”170 The clear and long-standing position of the courts is that international instruments are not a part of Canadian law, such that they are applicable by the courts, until such time as they are incorporated by statute.171 The presumption of conformity, an interpretive guide whereby Canadian courts presume domestic law to be in conformity with Canada’s international obligations,

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and the doctrine of incorporation, through which common law courts recognize customary international law, do not apply to the Declaration on this reading. As a result, provisions of the Declaration are not enforceable in domestic Canadian courts under conventional reception doctrine.172 Thus, it is held that the Declaration creates no substantive rights cognizable at Canadian law.173 The is not to say the Declaration been held to be without impact. As courts have repeatedly noted, the “values reflected in international instruments, while not having the force of law, may be used to inform the contextual approach to statutory interpretation and judicial review.”174 The Declaration may be relied on to inform the interpretation of domestic law, even where no doctrine compels that it be. Whether this applies only to the interpretation of statutory law, or also to constitutional law, appears unsettled. In Nunatukavut Community Council Inc. v. Canada (Attorney General), the Federal Court held that the plaintiffs had not brought any evidence to support their argument that the constitutional duty to consult needed to be interpreted in light of the Declaration.175 The Yukon Supreme Court, however, held that “Although not enforceable against Canada, the Supreme Court has confirmed the Declaration’s usefulness in interpreting Canada’s Constitution.”176 Other courts have disagreed on this point, but it is not clear what principled legal distinction is available to justify using the Declaration to inform the interpretation of legislation but not the constitution. In Simon, the Federal Court simply stated the principle applies to “a provision of domestic law,” which would seemingly include the Constitution.177 In a pair of cases, provincial courts in Ontario and Nova Scotia held that the Declaration can inform the sentencing of Indigenous offenders.178 These approaches, however, may understate the current relevance of the Declaration (even before considering the effect of domestic implementation statutes). As mentioned briefly above, there are three reasons for this. First, the Declaration does not create new rights. Many of its provisions rearticulate rights that are recognized in existing international law instruments, both universal in nature and pertaining specifically to Indigenous peoples. The question of whether, or to what extent, such provisions are binding, then, must be assessed with the originating instrument in mind.179 Second, some of the Declaration’s provisions may be, or may yet acquire the status of, customary international law.180 While Canada has historically denied that the Declaration represented customary law, that is not dispositive. Should any rights or principles in the Declaration be positively identified as customary law, they would be enforceable in common law courts in Canada without legislative implementation or incorporation.181 Third, declarations, while “soft-law,”

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are considered particularly important soft-law as articulations of international norms of considerable significance. Further, the Declaration enjoys broad international support, contributing to its importance.182 These arguments suggest that a view of the Declaration as having no impact domestically should be nuanced and, perhaps, subject to change over time. Gib van Ert has offered another line of argument. Though conventional approaches to reception may suggest that the Declaration is not binding domestically, the honour of the Crown requires the Crown to act in accordance with the promises it has made and obligations it has assumed under the Declaration and in its subsequent, and repeated, support for implementation. As van Ert notes, Canada’s actions in the international arena regarding the Declaration are unquestionably Crown actions.183 Indeed, it is owing to the fact that these are executive acts that they are not considered binding domestically – the executive is not a lawmaking branch of government.184 Given that the honour of the Crown, which presumes that the Crown fulfil its promises, is at stake in all of its dealings with Indigenous peoples, one might rightly ask how the Crown can “be heard to say in court or elsewhere that Canada’s endorsement of the Declaration is an act without domestic legal significance.”185 The question of whether a failure to implement the Declaration is a breach of the honour of the Crown was raised at the Yukon Supreme Court in Ross River Dena Council v. Canada.186 The court described the endorsement of the Declaration as political in nature, emphasizing the view that “as a declaration, it is a nonbinding international instrument.”187 The court did not explicitly address the question of whether failure to implement the Declaration may ground a claim for a failure to uphold the honour of the Crown, relying on the government’s repeated statements of its intention to implement the Declaration to reject the proposition that it was refusing to implement.188 While acknowledging that the Declaration has not yet been implemented, the court held that the evidence suggests a clear intention to do so. This could not, in the court’s view, amount to a failure to uphold the honour of the Crown. A second approach to implementation focuses on legislation. In April 2016, NDP MP Romeo Saganash tabled “An Act to Ensure that the Laws of Canada Are in Harmony with the United Nations Declaration on the Rights of Indigenous Peoples”189 with the purported support of the majority Liberal government. The bill passed the House of Commons but was held up in the Senate until it died on the order paper. The Liberal government has promised to introduce a similar bill as a government initiative should it win another mandate, a result which is uncertain as of this writing.190

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In November 2019, British Columbia passed the Declaration on the Rights of Indigenous Peoples Act (BC Act),191 becoming the first jurisdiction in Canada to pass implementation legislation. The approach taken in both Bill C-262 and the BC Act are telling and may provide guidance on future legislative approaches. In both instances, legislators avoided explicitly “incorporating” the Declaration into Canadian law. The BC Act’s stated purpose is “to affirm the application of the Declaration to the laws of British Columbia.” Section 3 of the BC Act outlines the approach: “In consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.”192 This echoes the language of Bill C-262, which would have required “[t]he Government of Canada, in consultation and cooperation with Indigenous peoples in Canada, must take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples.”193 Under this legislative approach, the Declaration is not incorporated into Canadian law in full. Rather, the laws of British Columbia and Canada would be gradually modified to ensure that they are consistent with the Declaration. What “consistent” with the Declaration means in this context would still be subject to ongoing interpretation, negotiation, and contestation. If these clauses are justiciable, and, if so, to what extent, it may cause the courts to have to begin to give substantive interpretation of the Declaration. Taken together, these two approaches to the Declaration – recognition in the courts and legislative implementation – are two examples of how Indigenous peoples are seeking to restructure their legal relationships with the state through appeals to non-state forms of law. c) Participatory A third mode of engaging international law is what I will call “participatory.” In this model, Indigenous peoples engage international institutions in the development of international norms.194 Here I will look at what can be referred to as the “modern era” of international law. It should be recalled that Indigenous peoples have for centuries sought to gain influence and exercise agency beyond the colonial governments with whom they were in immediate contact. This often took the form of appealing to supra-national norms. In 1644, for example, the Narranganset appealed to Charles I, requesting that he intervene in their ongoing dispute with Massachusetts.195 Such appeals were common throughout the eighteenth and nineteenth centuries and continued into the twentieth. As Frank Wilmer notes, “Between 1882 and 1925, Indigenous

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leaders from North America and New Zealand sent six delegations to England to seek British assurances to honour treaties and respect aboriginal sovereignty in the colonies. The Nishga nation forwarded a petition of complaint to the Privy Council in 1913.”196 Appeals to the imperial Crown are notable in part because in the nineteenth century imperial law was, as much as positive “international law,” the body of law that governed relations between the imperial and colonial worlds across much of the world.197 As with contemporary appeals to international law, appeals to the imperial Crown represented attempts by Indigenous peoples to invoke the protections of a supra-national legal order that could bind the settler-colonial governments with whom they were in direct contact and frequent conflict. The developments in international law regarding Indigenous peoples in the past several decades have been well canvassed.198 The aim here is not to repeat those developments. Rather, in keeping with the theme of this chapter, the aim is to identify instances where Indigenous peoples, particularly those in Canada, have used international law to their advantage or as an alternative to state law. This last section deals specifically with instances where Indigenous peoples have not only made recourse to international law but also have taken active steps in shaping it. One of the earliest examples of this approach in the modern era was the World Council of Indigenous Peoples.199 The WCIP had a secretariat based in Canada and observer status at the UN.200 The council was formed by George Manuel, a member of the Shushwap First Nation in British Columbia and head of the National Indian Brotherhood of Canada for three terms, from 1970–6.201 Under Manuel’s leadership, “the National Indian Brotherhood of Canada was the first Indigenous organization to receive official NGO status at the United Nations in 1975.”202 The emphasis on the international arena was based on the belief that “if self-determination was to become a reality for Indigenous peoples, then Indigenous peoples must start practicing it by speaking for themselves at international forums such as United Nations.”203 The WCIP had a considerable impact in organizing Indigenous peoples at the international level and in pushing the discourse of rights forward in that sphere. This included, for example, pushing the shift from ILO Convention 107 to Convention 169.204 Pōkā Laenui described the achievements of the council in 1990: What have we achieved? ... we’ve played a major role in contributing to the drafting of a United Nations Declaration of Rights of Indigenous Peoples. That drafting process is still proceeding, but it is important to appreciate that to have given this process serious thought fifteen years ago would have

Finding Solutions in Indigenous and International Law  321 been considered preposterous. Today, Indigenous rights are given very serious consideration in international circles. The WCIP has been a major contributor not only through our interventions placed before that UN working group but also by our process of consulting with our member organizations on Indigenous rights issues and by encouraging and supporting their attendance at these United Nations functions.205

Thus, while the WCIP drew on a long tradition of Indigenous political and legal activism that sought to challenge features of local or domestic colonialism by appealing to superordinate authorities, its approach was new insofar as it sought to engage international organizations in the development of international norms. It was also part of a wave of Indigenous alliance building that went beyond state or regional levels.206 In the wake of this initial wave of collaborative activity and activism at the international level, a vast number of initiatives have been undertaken. The establishment of the United Nations Working Group on Indigenous Populations in 1982 and the Expert Mechanism on the Rights of Indigenous Peoples in 2008 have provided a foundation for ongoing involvement.207 There are a range of such initiatives today, including the International Indigenous Forum on Biodiversity (IIFB), the International Indigenous Peoples Forum on Climate Change (IIPFCC), the Global Indigenous Women’s Caucus, and the Indigenous Peoples’ and Community Conserved Territories and Areas Consortium. The Indigenous Network on Economies and Trade focuses on the economic aspect of Indigenous rights, making submissions to international trade tribunals regarding Indigenous rights. As Arthur Manuel, son of George Manuel and founder of INET, writes: “INET is open to Indigenous nations that want to assert and protect their rights to their lands and resources. As a platform that focuses on the macro-economic dimension of Indigenous rights, INET is working towards the fair and equitable recognition of Indigenous proprietary interests in the global economy.”208 The INET, then, targets the development of international norms respecting Indigenous rights, emphasizing a particular set of issues, in this case related to economic interests. Similarly, the Inuit Circumpolar Council, formed in 1977, represents “approximately 160,000 Inuit of Alaska, Canada, Greenland, and Chukotka (Russia).”209 The council holds consultative status at the UN. The ICC advocates on policy issues affecting Inuit peoples while pushing for a greater autonomy.210 These examples illustrate a movement beyond state law through active engagement and participation in the international arena, not only in an advocacy role, but in shaping international norms. They show Indigenous agency and

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reveal the fiction that Indigenous peoples act only as subjects of state governments. 3. Conclusion The six examples outlined above may seem disparate. Yet their similarities are important. Each example shows Indigenous peoples making use of varied legal resources, using distinct legal concepts, rationales, and frameworks to fashion tools that can be deployed to further their goals. This speaks to Indigenous self-determination and the realization of Indigenous freedom in that it challenges the notion of a unilateral state operating an exclusive legal system through well-defined territorial bounds. Instead, this picture is replaced with one in which a given territory contains a multiplicity of legal resources. Indigenous peoples, exercising agency and autonomy, make strategic decisions about how best to engage with the plurality of legal norms and practices at their disposal. In so doing, they revitalize and adapt Indigenous legal traditions while enacting new modes of constitutional relationships with nation states. Indigenous norms of constitutional legitimacy, which the opening of this chapter described as being central to social and economic justice, are being shaped in an ongoing process of engagement with varied legal norms. The social and economic development of Indigenous peoples is dependent in part on the continued development of Indigenous legal traditions through complex processes of interaction with other varieties of law. NOTES 1 See, for example, James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya: The Situation of Indigenous Peoples in Canada, A/HRC/27/52/Add.2 (4 July 2014); UN Commission on Human Rights. Human Rights and Indigenous Issues: Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen, Addendum: Mission to Canada, UN Doc. E/CN.4/2005/88 /Add.3 (2 December 2004); James Daschuck, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life (Regina: University of Regina Press, 2013). 2 UN Commission on Human Rights, supra note 1. 3 As Special Rapporteur Anaya wrote, “It is difficult to reconcile Canada’s well-developed legal framework and general prosperity with the human

Finding Solutions in Indigenous and International Law  323 rights problems faced by Indigenous peoples in Canada, which have reached crisis proportions in many respects.” Anaya, supra note 1 at para. 14. 4 See, for example, Stephen Cornell and Joseph P. Kalt, “American Indian Self-Determination: The Political Economy of a Successful Policy” JOPNA Working Paper No. 1, November 2010, http://hpaied.org/sites/default /files/publications/jopnacornellkaltpolitics.pdf. 5 Stephen Cornell and Joseph P. Kalt, “Where’s the Glue? Institutional and Cultural Foundations of American Indian Economic Development” (2000) 29 Journal of Socio-Economics 443. 6 See, for example, Harold Cardinal, The Unjust Society (Toronto: Douglas & McIntyre, 1999) at 143 [original printing 1969]. 7 See Patricia Monture-Angus, “Standing Against Canadian Law: Naming Omissions of Race, Culture and Gender” (1998) 2 Year Book New Zealand Jurisprudence 7. Many Indigenous scholars have suggested that the role of the state should be minimized, emphasizing that the path to the reinvigoration of Indigenous legal traditions and self-governing autonomy must be shaped by Indigenous peoples themselves: Gordon Christie “Culture, Self-Determination and Colonialism: Issues Around the Revitalization of Indigenous Legal Traditions” (2007) 6 Indigenous Law Journal 13; Taiaiake Alfred, Peace, Power, and Righteousness: An Indigenous Manifesto (Don Mills: Oxford University Press Canada, 1999); Leanne Simpson, Dancing on Our Turtle’s Back (Winnipeg: Arbeiter Ring, 2011). 8 John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 239–41. 9 Anaya, supra note 1 at para. 2. 10 John Borrows, “Indigenous Legal Traditions in Canada” (2005) 19 Washington University Journal of Law and Policy 167 at 176. 11 Val Napoleon, “Tsilhqot’in Law of Consent” (2015) 48 University of British Columbia Law Review 873 at 876. For an example of the practical challenges associated with internal contests over Indigenous law in the context of opposition to a pipeline project, see Coastal GasLink Pipeline v. Hudson, 2019 BCSC 2264. 12 Aaron Mills, “The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today” (2016) 61:4 McGill Law Journal 847. 13 John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016) at 19–49. 14 James (Sákéj) Youngblood Henderson, “Postcolonial Indigenous Legal Consciousness” (2002) 1 Indigenous Law Journal 1 at 1–2. 15 On this point, see also John Borrows, who argues that “Indigenous law remains relevant as long as there is discord and dissension in the world and the desire to address its consequences.” Borrows, supra note 8 at 11.

324  Robert Hamilton 16 Ibid. at 10 [emphasis added]. See also Hadley Friedland and Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions” (2015–2016) 1:1 Lakehead Law Journal 16 at 16. 17 As Borrows writes, “Indigenous legal traditions are inextricably intertwined with the present-day Aboriginal customs, practices, and traditions that are now recognized and affirmed in section 35(1) of the Constitution Act, 1982. In this respect, they are also a part of Canadian law.” Borrows, supra note 8 at 11. 18 Ibid. at 23. 19 Emily Snyder, Val Napoleon, and John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources” (2015) 48:2 University of British Columbia Law Review 593 at 596, 597. 20 See, for example, Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983) at 167–234. 21 Borrows, supra note 8 at 16. 22 Friedland and Napoleon, supra note 16 at 24. 23 Ibid. at 20. 24 Simpson, supra note 7 at 17. See also Glen Coulthard, Red Skin, White Masks (Minneapolis: University of Minnesota Press, 2014) at 154. 25 Simpson, supra note 7 at 16. I have in mind here what James Tully refers to as the “vast repertoire of arts of infrapolitical resistance” employed by Indigenous peoples. As Tully writes, “[T]here is always a range of possible comportments – ways of thinking and acting – that are open in response, from the miniscule range of freedom exercised in hidden insubordination in total institutions such as residential schools to the larger and more public displays.” James Tully, Public Philosophy in a New Key, vol. 1, Democracy and Civic Freedom (Cambridge: Cambridge University Press, 2008) at 265. 26 The emphasis on specific examples is based on the belief that “proposals to positively change societies must eventually move beyond generalities. We must move from focusing on general claims of culture to considering which specific aspects of Indigenous legal traditions can be deployed to more effectively address this problem.” Snyder, Napoleon, and Borrows, supra note 19 at 595. 27 In one framing, “Tribal Parks can be understood as a projection of sovereignty over contested terrain.” See Grant Murray and Leslie King, “First Nations Values in Protected Area Governance: Tla-o-qui-aht Tribal Parks and Pacific Rim National Park Reserve” (2012) 40:3 Human Ecology 385 at 389. 28 MacMillan Bloedel Ltd. v. Mullin, 1985 CanLII 696 (BC SC). 29 Ibid. at para. 71. 30 “Welcome to Tla-o-qui-aht Tribal Parks” (Summer 2013), https://www .wildernesscommittee.org/sites/all/files/publications/2013_tla-o-qui-aht _Paper-Web-2.pdf.

Finding Solutions in Indigenous and International Law  325 31 Murray and King, supra note 27 at 390. 32 Gordon Hoekstra, “Vancouver Island First Nation Declares ‘Tribal Park’ to Protect Land,” Vancouver Sun, 13 April 2014, https://www .wildernesscommittee.org/news/vancouver-island-first-nation-declares -tribal-park-protect-land. 33 Murray and King, supra note 27 at 389. 34 Ibid. at 390. 35 “On May 29, 2008, Bill 38 – 2008 (the Protected Areas of British Columbia (Conservancies and Parks) Amendment Act, 2008) established Duu Guusd. On December 17, 2008, the Province of British Columbia passed Order in Council No. 977/2008 which added 6,793 hectares and established revised boundaries for Duu Guusd that included Langara Island and an area of land in Rennell Sound.” Protected Areas of British Columbia Act, SBC 2000, c. 17, Part 8. 36 BC Parks, Duu Guusd Heritage Site/Conservancy, “Nature and Culture” (drop-down menu) at para. 5, http://www.env.gov.bc.ca/bcparks/explore /cnsrvncy/duu_guusd/. 37 Ibid. 38 BC Parks, “Duu Guusd Management Plan” (July 2011) at 1, https:// bcparks.ca/explore/cnsrvncy/duu_guusd/duu-guusd-july292011-mp. pdf?v=1613417933441. 39 Ibid. at 1. [emphasis added] 40 Emma Gilchrist “‘It’s the Last Place We Have for Our People’: Doig River’s Last Stand Amidst Fracking Boom,” The Narwhal, 14 April 2016, https:// thenarwhal.ca/it-s-last-place-we-have-our-people-doig-river-s-last-stand -amidst-fracking-boom/. 41 Ibid. 42 Mark Hume, “Huge ‘Tribal Park’ with Stunning Ecosystem to Span B.C. -Alberta,” Globe and Mail, 2 October 2011, http://www.theglobeandmail .com/news/british-columbia/huge-tribal-park-with-stunning-ecosystem -to-span-bc-alberta/article4351016/. 43 Gilchrist, supra note 40. 44 Ibid. 45 Ibid. 46 “Draft Position Paper Nexwagwez?an Dasiqox Tribal Park” (March 2016), https://dasiqox.org/wp-content/uploads/2018/03/DasiqoxPositionPaper -March2016.pdf. 47 Emma Gilchrist, “‘It’s No Longer about Saying No’: How B.C.’s First Nations Are Taking Charge with Tribal Parks,” The Narwhal, 29 March 2016, https://thenarwhal.ca/it-s-no-longer-about-saying-no-how-b-c-s-first -nations-are-taking-charge-through-tribal-parks/. 48 Ibid.

326  Robert Hamilton 49 Ibid. For an overview of Tsilhqot’in legal principles, especially governing issues of consultation and consent, see Napoleon, supra note 11. 50 “Draft Position Paper,” supra note 46 at 4. 51 Ibid. 52 Dasiqox Tribal Park, Part 1: Dasiqox Tribal Park – Nexwagwez?an: There For Us [video] at 0:19, accessed 15 February 2021, http://www.dasiqox.org/. 53 “Draft Position Paper,” supra note 46 at 7. 54 Ibid. at 4. 55 Ibid. 56 Ibid. at 5. 57 Ibid. As Val Napoleon writes: “It is time for the Province of British Columbia and Canada to learn Tsilhqot’in law, but not to practise it; that remains the business of Tsilhqot’in people under authority of their law. Rather, the Province of British Columbia and Canada are responsible to get to a place in their understanding of Tsilhqot’in law to see it as law and to accept the legitimate operation of Tsilhqot’in law on Tsilhqot’in lands as a part of multijuridical Canada.” Napolean, supra note 11 at para. 44. 58 “Draft Position Paper,” supra note 46 at 5. 59 Ibid. at 6. 60 ILRU Case Note: Application of Secwepemc Lands and Resources Law (Victoria: Indigenous Law Research Unit, 2016). On file at the University of Victoria Indigenous Law Research Unit. 61 Friedland and Napoleon, supra note 16 at 16. 62 Ibid. 63 Ibid. 64 Ibid. at 18. 65 Simpson, supra note 7 at 15. 66 Friedland and Napoleon, supra note 16 at 19. 67 Ibid. 68 Ibid. at 20. 69 Ibid. 70 Ibid. at 21. 71 See, for example, John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002). 72 Friedland and Napoleon, supra note 16 at 28. 73 Shuswap Nation Tribal Council, “Secwepmc Lands and Resources Law Analysis Project Summary,” 21 June 2016, at 2. http://www.skeetchestn.ca /files/documents/Governance/secwepemc-lands-and-resources-law -analysis-summary.pdf. 74 ILRU Case Note, supra note 60. 75 Shuswap Nation Tribal Council, supra note 73 at 3. 76 Ibid. at 4.

Finding Solutions in Indigenous and International Law  327 77 Ibid. at 3. 78 Ibid. at 5. 79 ILRU Case Note, supra note 60. 80 Ibid. 81 Hamar Foster, “The Saanichton Bay Marina Case: Imperial Law, Colonial History and Competing Theories of Aboriginal Title” (1988–89) 23 University of British Columbia Law Review 629 at 630. 82 Saanichton Marina Ltd. v. Claxton (1989) 36 B.C.L.R. (2d) 79, 57 D.L.R. (4th) 161 (B.C.C.A.) at para. 3. 83 Ibid. 84 This aspect of the reef net fishery was discussed in Robert Hamilton, “Indigenous Legal Traditions, Inter-Societal Law, and the Colonization of Marine Spaces” in Stephen Allen, Nigel Bankes, and Oyvind Ravna, eds., The Rights of Indigenous Peoples in Marine Areas (Oxford: Hart Publishing, 2019) at 22. 85 Earl Claxton Sr. and John Elliot Sr., Reef Net Technology of the Saltwater People (Brentwood Bay, BC: Saanich Indian School Board, 1994). 86 Nicholas XEMŦOLTW Claxton, “To Fish as Formerly: A Resurgent Journey Back to the Saanich Reef Net Fishery” (PhD diss., University of Victoria, 2015) [unpublished] at 69–70. See also Nicholas Xumthoult Claxton, “ISTÁ SĆIÁNEW, ISTÁ SXOLE ‘To Fish as Formerly’: The Douglas Treaties and the WSÁNEĆ Reef-Net Fisheries” in Leanne Simpson, ed., Lighting the Eighth Fire: The Liberation, Resurgence, and Protection of Indigenous Nations (Winnipeg: Arbeiter Ring, 2008). 87 Claxton Sr. and Elliot Sr., supra note 85. 88 Robert Clifford, “WSÁNEĆ Legal Theory and the Fuel Spill at SELEK-TEL(Goldstream River)” (2016) 61:4 McGill Law Journal at 758. 89 Ibid. at 764n30. 90 Claxton Sr. and Elliot Sr., supra note 85. 91 Clifford, supra note 88 at 769. 92 Ibid. at 768. 93 Ibid. at 770. 94 Ibid. at 771–5. 95 Claxton, “To Fish as Formerly: A Resurgent Journey,” supra note 86 at 103. 96 Saanichton Marina Ltd. v. Claxton (1989) 36 BCLR (2d) 79, 57 DLR (4th) 161 (BCCA) at para. 19. 97 Ibid. at para. 33. 98 Saanichton Marina Ltd. v. Claxton 1987 CanLII 2805 (BC SC). 99 Ibid. at para. 13. 100 Saanichton Marina Ltd., supra note 96 at para. 34. [emphasis added] 101 Claxton, “To Fish as Formerly: A Resurgent Journey,” supra note 86 at 75–6.

328  Robert Hamilton 102 Ibid. at 141. 103 “The revitalization and resurgence of WSÁNEĆ knowledge systems are necessary for the re-establishment of traditional WSÁNEĆ governance, resource management, reconnection and re-establishment of WSÁNEĆ relationships to the territory, and for restructuring the relationships between the WSÁNEĆ Nation and Canada.” Ibid. at 71. 104 Clifford, supra note 88 at 766. 105 Ibid. 106 Glen Coulthard, “Beyond Recognition: Indigenous Self-Determination as Prefigurative Practice” in Leanne Simpson, ed., Lighting the Eighth Fire: The Liberation, Resurgence, and Protection of Indigenous Nations (Winnipeg: Arbeiter Ring, 2008) at 199. 107 Borrows, supra note 13 at 19–41. 108 Cornell and Kalt, supra note 5. 109 See, for example, Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, eds., Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford: Oxford University Press, 2010). 110 Nigel Bankes, “The Protection of the Rights of Indigenous Peoples to Territory through the Property Rights Provisions of International Regional Human Rights Instruments” (2001) 3 Yearbook Polar Law 57 at 58. 111 Ibid. 112 BC Treaty Commission, Hul’qumi’n num Treaty Group, accessed 16 February 2021, http://www.bctreaty.ca/hulquminum-treaty-group 113 Inter-American Commission on Human Rights, Report No. 105/09, “Admissibility: Hui’Qumi’num Treaty Group – Canada” (2009) 13 Australian Indigenous Law Review 134 at 134. 114 See Robert Morales, The Great Land Grab: Colonialism and the Esquimalt & Nanaimo Railway Land Grant in Hul’qumi’num Territory (Ladysmith, BC: Hul’qumi’num Treaty Group, 2007). 115 “What Is the IACHR?” Inter-American Commission on Human Rights, accessed 22 December 2020, http://www.oas.org/en/iachr/mandate/what. asp. 116 Ibid. 117 Inter-American Commission on Human Rights (IACHR), Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, OEA/Ser.L/V /II. Doc. 59/06, 2010, at para. 5. 118 Article XXIII: “Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.” American Declaration of the Rights and Duties of Man (Bogotá, Colombia, 1948), Chapter One, Rights.

Finding Solutions in Indigenous and International Law  329 119 Article 21: “Right to Property. 1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. // 2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. // 3. Usury and any other form of exploitation of man by man shall be prohibited by law.” American Convention on Human Rights (San José, Costa Rica, 22 November 1969), Chapter 1 – General Obligations. 120 IACHR, supra note 117 at para. 6. 121 Ibid. 122 See Canada’s Human Rights Commitments, http://humanrightscommitments.ca/. 123 See IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), 12 October 2004, footnote No. 123, where the commission stated, “While the Commission acknowledges that Belize is not a state party to ILO Convention (No 169), it considers that the terms of that treaty provide evidence of contemporary international opinion concerning matters relating to Indigenous peoples, and therefore that certain provisions are properly considered in interpreting and applying the articles of the American Declaration in the context of Indigenous communities.” 124 Inter-American Commission on Human Rights, Report No. 105/09 Petition 592­07, Admissibility Hul’qumi’num Treaty Group Canada, October 30, 2009. 125 Ibid. para. 4. 126 Ibid. 127 Ibid. at para. 16 128 Ibid. at paras. 17, 18 129 Ibid. at para. 19. 130 Ibid. at para. 21. 131 Ibid. at para. 25. 132 Ibid. at para. 27. 133 Ibid. at para. 31. 134 Ibid. at para. 35. 135 Ibid. at para. 37. 136 Ibid. at paras. 37, 38. 137 Ibid. at para. 39. 138 Ibid. 139 Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257, 2014 SCC 44 (hereinafter Tsilhqot’in Nation). 140 Inter-American Commission on Human Rights, supra note 124 at para. 41.

330  Robert Hamilton 141 John Borrows, “Aboriginal Title and Private Property” (2015) 71:2 Supreme Court Law Review 91 at 93; Robert Hamilton, “Private Property and Aboriginal Title: What Is the Role of Equity in Mediating Conflicting Claims?” (2018) 51:2 University of British Columbia Law Review 347. 142 Amnesty International Canada, “Amicus Curae Case of the Hul’qumi’num Treaty Group v. Canada: Submitted before the Inter-American Commission on Human Rights (Ottawa: AIC, 2011) at 24. 143 IACtHR, Case of the Indigenous Community Yakye Axa v. Paraguay, Final Decision, Judgment of June 17, 2005, paras. 144, 146, 145. Article 21(1) of the Convention provides that “[t]he law may subordinate [the] use and enjoyment [of property] to the interest of society.” The necessity of legally established restrictions collective objectives that, because of their importance, clearly prevail over the necessity of full enjoyment of the restricted right will depend on whether they are geared toward satisfying an imperative public interest; it is insufficient to prove, for example, that the law fulfills a useful or timely purpose. Proportionality is based on the restriction being closely adjusted to the attainment of a legitimate objective, interfering as little as possible with the effective exercise of the restricted right. 144 Tsilhqot’in Nation, supra note 139 at para. 125. 145 Amnesty International Canada, supra note 142 at 24; IACtHR, Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations and Costs, Judgment of March 29, 2006 at para. 139 (hereinafter Sawhoyamaxa Indigenous Community). 146 As Kent McNeil writes, “[A]s a matter of law, Aboriginal title ought to prevail over provincially created interests that are inconsistent with it.” “Reconciliation and Third-Party Interests: Tsilhqot’in Nation v British Columbia” (2010) 8:1 Indigenous Law Journal 7 at 17–18. 147 The exception to this is Justice Vickers’s brief discussion at the trial level in Tsilhqot’in Nation, where he noted that in either case an injustice would be done, and expressed his hope that such disputes could be resolved through “honourable negotiation.” Tsilhqot’in Nation v. British Columbia 2007 BCSC 1700, [2008] 1 C.N.L.R. 112 at para. 1368. 148 IACtHR, Case of the Indigenous Community Yakye Axa v. Paraguay, Final Decision. Judgment of June 17, 2005, at para. 143 (hereinafter Case of the Indigenous Community Yakye Axa). See also Sawhoyamaxa Indigenous Community, supra note 145 at para. 120, where the Court held that: “Likewise, this Court considers that Indigenous communities might have a collective understanding of the concepts of property and possession, in the sense that ownership of the land “is not centered on an individual but rather on the group and its community.” This notion of ownership and possession of land does not necessarily conform to the classic concept of property, but deserves equal protection under Article 21 of the American Convention.

Finding Solutions in Indigenous and International Law  331 Disregard for specific versions of use and enjoyment of property, springing from the culture, uses, customs, and beliefs of each people, would be tantamount to holding that there is only one way of using and disposing of property, which, in turn, would render protection under Article 21 of the Convention illusory for millions of persons.” 149 Unlike Aboriginal Rights in the Canadian context, the limitations are explicitly included in the provisions themselves, at least in the American Convention on Human Rights. See supra note 119. 150 Indigenous Community Yakye Axa, supra note 148 at para. 144. 151 Ibid. at para. 146. 152 Ibid. at para. 147. 153 Ibid. at para. 148. 154 Ibid. at para. 149. 155 Ibid. at para. 151. See also Sawhoyamaxa Indigenous Community, supra note 145 at para. 135, where the court stated explicitly that the state “must surrender alternative lands of equal extension and quality, which will be chosen by agreement with the members of the Indigenous peoples, according to their own consultation and decision procedures.” 156 Chippewas of Sarnia Band v. Canada (Attorney General), 2000 CanLII 16991 (ON CA) at para. 282. 157 Indigenous Community Yakye Axa, supra note 148 at para. 181. Reparation of the damage caused by infringement of an international obligation requires, whenever possible, full restitution (restitutio in integrum), which consists of re-establishing the situation prior to the violation. If this is not possible, the international tribunal must order a number of measures that, in addition to ensuring respect for the rights abridged, redress the consequences caused by the infringements and order payment of compensation for the damage caused. The obligation to provide reparations, which is regulated in all aspects (scope, nature, modes, and establishment of the beneficiaries) by International Law, cannot be modified by the State that is under this obligation, nor can it avoid complying with it, by invoking domestic legal provisions. 158 Indigenous Community Yakye Axa, supra note 148 at paras. 205–6, 217. 159 Sawhoyamaxa Indigenous Community, supra note 145 at para. 113; Indigenous Community Yakye Axa, supra note 148 at para. 140. 160 IACHR, Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, OEA/Ser.L/V/II. Doc. 59/06. 2010 at para. 113. 161 Ibid. at para. 114. See also IACHR, Report on the Situation of Human Rights in Brazil, OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29, 1997 at paras. 33, 40. 162 Sawhoyamaxa Indigenous Community, supra note 145 at para. 137.

332  Robert Hamilton 163 Ibid. at para. 138. 164 Borrows, supra note 141. 165 McNeil, supra note 146. 166 For a review of the development of the Declaration, see Claire Charters and Rodolfo Stavenhagen, eds., Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (Copenhagen: International Working Group on Indigenous Affairs, 2009). 167 Brenda L. Gunn, “Overcoming Obstacles to Implementing the UN Declaration on the Rights of Indigenous Peoples in Canada” (2013) 31:1 Windsor Yearbook Access to Justice 147 at 148. 168 Gib van Ert, “Three Good Reasons Why UNDRIP Can’t Be Law – And One Good Reason Why It Can” (2017) 25 Advocate 29 at 30. 169 Ibid. 170 Snuneymuxw First Nation v. Board of Education – School District #68, 2014 BCSC 1173 (CanLII) at para. 59. 171 Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para. 69 (hereinafter Baker). 172 van Ert, supra note 168 at 29–31. 173 Simon v. Canada (Attorney General), 2013 FC 1117 (CanLII) at 121 (hereinafter Simon). 174 Nunatukavut Community Council Inc. v. Canada (Attorney General), 2015 FC 981 (CanLII) at 103 (hereinafter Nunatukavut); Baker, supra note 171 at paras. 70–1; Canada (Human Rights Commission) v. Canada (Attorney General), 2012 FC 445 (CanLII) at para. 353. 175 Nunatukavut, supra note 174 at para. 105. 176 Taku River Tlingit First Nation v. Canada (Attorney-General), 2016 YKSC 7 (CanLII) at para. 100. 177 Simon, supra note 173 at 121. 178 R. v. Francis-Simms, 2017 ONCJ 402 (CanLII) and R. v. Christmas, 2017 NSPC 48 (CanLII). 179 Gunn, “Overcoming Obstacles,” supra note 167 at 161. 180 The position that many individual articles of the Declaration may reflect existing customary law was stated by the International Law Association, Sofia Conference (2012), Rights of Indigenous Peoples, Final Report, at 29, http://www.ila-hq.org/index.php/committees; Gunn, “Overcoming Obstacles,” supra note 167 at 161. See also Mauro Barelli, Seeking Justice in International Law: The Significance and Implications of the UN Declaration on the Rights of Indigenous Peoples (New York: Routledge, 2016) at 44, attributing this argument to James Anaya and Siegfried Weissner. 181 Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at para. 86; R. v. Hape, 2007 SCC 26, [2007] 2 SCR 292; Gibran van Ert, Using International Law in Canadian

Finding Solutions in Indigenous and International Law  333 Courts, 2nd ed. (Toronto: Irwin Law, 2008) at 208; Gunn, “Overcoming Obstacles,” supra note 167 at 164. 182 Gunn, “Overcoming Obstacles,” supra note 167 at 162–3. For a review of this argument, see also Robert Hamilton “The United Nations Declaration on the Rights of Indigenous Peoples and the Division of Powers: Considering Federal and Provincial Authority in Implementation” (2021) UBC Law Review [forthcoming]. 183 van Ert, supra note 168 at 33. 184 Ibid. 185 Ibid. at 34. 186 Ross River Dena Council v. Canada, 2017 YKSC 59 (CanLII). 187 Ibid. at para. 302. 188 Ibid. at paras. 307–11. 189 1st Session, 42nd Parliament, Bill C-262, An Act to Ensure that the laws of Canada are in Harmony with the United Nations Declaration on the Rights of Indigenous Peoples. 190 Bill Curry, “Liberals Promise Government Law on Indigenous Rights as High-Profile Bills Die in Senate,” Globe and Mail, 9 June 2019. 191 Declaration on the Rights of Indigenous Peoples Act, SBC 2019 c44. 192 Ibid. at s. 3. 193 Ibid. at s. 4. 194 Important institutions engaged in this way include, the “Commission on Human Rights, the Working Group on Indigenous Populations, the Sub-Commission on Prevention of Discrimination and Protection of Minorities, the Conference of the Parties to the Convention on Biological Diversity, UNESCO, and the Commission on Sustainable Development…the International Labor Organization (ILO), the United Nations World Conferences, the International Union for the Conservation of Nature (IUCN), and the World Archeological Congress.” Reyes Garcia, “International Indian Treaty Council” in Suzanne Oboler and Deena J. González, eds., The Oxford Encyclopedia of Latinos and Latinas in the United States (Oxford: Oxford University Press, 2005). For a review of the history of Indigenous involvement in the development of Indigenous-specific international norms, see Augusto Willemsen Diaz, “How Indigenous Peoples’ Rights Reached the UN” in Claire Charters and Rodolfo Stavenhagen, eds., Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (Copenhagen: International Working Group on Indigenous Affairs, 2009) at 16–31. 195 Jenny Hale Pulsipher, Subject unto the Same King: Indians, English, and the Contest for Authority in Colonial New England (Philadelphia: University of Pennsylvania Press, 2005) at 30. 196 Franke Wilmer, The Indigenous Voice in World Politics: Since Time Immemorial (New York: Sage, 1993) at 127.

334  Robert Hamilton 197 See Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (Cambridge. MA: Harvard University Press, 2016). 198 See, for example, James S. Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford: Oxford University Press, 2004); Siegfried Wiessner, “Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis” (1999) 12 Harvard Human Rights Journal 57; Joshua Castellino and Niamh Walsh, eds., International law and Indigenous Peoples (Leiden: Martinus Nijhoff, 2005); Luis Rodríguez-Piñero, Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime, 1919–1989 (Oxford: Oxford University Press, 2005). 199 See Peter McFarlane, Brotherhood to Nationhood: George Manuel and the Making of the Modern Indian Movement (Toronto: Between the Lines Press, 1993); Deidre Cynthia Duquette, “The World Council of Indigenous Peoples: The Study of an International Indigenous Organization” (MA thesis, University of Victoria, 1996) [unpublished]. For a copy of the Declaration of Principles of the WCIP, see Pōkā Laenui, Hayden Burgess, and TCP, “The World Council of Indigenous Peoples: An Interview with Pōkā Laenui (Hayden Burgess)” (1990) 2:2 The Contemporary Pacific 336 at 345–8. The first Indigenous organization to gain consultative status at the UN was the International Indian Treaty Council (IITC), which gained status with the Economic and Social Council (ECOSOC) in 1977. The IITC “was founded in 1974 at a gathering of the American Indian Movement (AIM) in Standing Rock, South Dakota, attended by more than five thousand representatives of ninety-eight Indigenous nations” and “focuses on building Indigenous Peoples’ participation in key United Nations organizations and agencies” (Garcia, supra note 194). For an account of the IITC role in the drafting of the Declaration, see Andrea Carmen, “International Indian Treaty Council Report from the Battle Field – the Struggle for the Declaration” in Charters and Stavenhagen, supra note 194 at 86–95. 200 Douglas E. Sanders, The Formation of the World Council of Indigenous Peoples (Copenhagen: International Working Group for Indigenous Affairs, 1977) at 6. 201 Ibid. at 10; Arthur Manuel, Unsettling Canada: A National Wake-up Call (Toronto: Between the Lines Press, 2015) at 17, 49; Wilmer, supra note 196 at 127. 202 Wilmer, supra note 196 at 136. 203 Laenui, supra note 199 at 336. 204 Ibid. at 338. 205 Ibid. 206 Wilmer, supra note 196 at 136.

Finding Solutions in Indigenous and International Law  335 207 Jonathan Crossen, “Safe Haven for an Indigenous Fugitive: Indigenous Internationalism and Illegal Protests” (2016) 40:2 American Indian Culture and Research Journal 51. 208 Arthur Manuel and Nicole Schabus, “Indigenous Peoples at the Margin of the Global Economy: A Violation of International Human Rights and ­International Trade Law” (2005) 8 Chapman Law Review 229 at 258. 209 Inuit Circumpolar Council, “About ICC,” accessed 22 December 2020, https://www.inuitcircumpolar.com/about-icc/. 210 Jessica Shadian, Rethinking Westphalian Sovereignty: The Inuit Circumpolar Council and the Future of Arctic Governance (Toronto: Munk School of Global Affairs, University of Toronto, 2013); Gary N. Wilson and Heather A. Smith, “The Inuit Circumpolar Council in an Era of Global and Local Change” (2011) 66:4 International Journal 910.

11  Victory Through Honour  : Bridging Canadian Intellectual Property Laws and Kwakwaka’wakw Cultural Property Laws vanessa udy

On 30 October 1948, an unusual ceremony took place at the University of British Columbia’s Thunderbirds’ homecoming game. During the halftime break, a Kwakwaka’wakw delegation, led by the first known female totem pole carver, Ellen “Ka’kasolas” Neel, and Chief William Scow, took to the field to present the University of British Columbia (UBC) with a gift: a painted totem pole, crested with a mythical thunderbird (Figure 11.1). In front of a crowd of approximately 6,000 spectators,1 with as much pomp and fanfare as they could risk with the potlatch ban still in effect, Neel and Scow dedicated the pole to “make good” the use of the thunderbird name by the school’s varsity football team. Until that moment, the team had used the name without the permission of the Kwikwasut’inuxw, a Kwakwaka’wakw tribe who claim Kolus the thunderbird as their ancestor. The pole, named The Four Tests of Tsi-Kumi or Victory Through Honour, depicts Kolus and associated stories set in the traditional territory of the Kwikwasut’inuxw. According to their oral traditions, the Kwikwasut’inuxw are descendants from Kolus and maintain ties to the territory from which the story originates. As will be further explored in this chapter, the oral histories of the Neel family tell of how the pole, the stories, and the crests were passed down to Neel by a grandparent through birthright and marriage.2 At the time, not only was the legal order of the Kwakwaka’wakw unrecognized under Canadian law, it had been largely suppressed by the criminalization of one of its key institutions, the potlatch. Though ties between UBC and the Kwakwaka’wakw had been strengthened by the gifting of the pole, traditional restrictions on the use of Kwakwaka’wakw crests were unknown to the average student, staff, or faculty member. It would seem that Neel did not trust the university to treat the crest with respect. This was, after all, an institution that would have allowed the

Bridging Intellectual Property and Cultural Property Laws  337 Figure 11.1.  Victory Through Honour

student society to use totem poles as goal posts, an undignified pursuit, had it not been for her intervention.3 In the absence of a practicable recourse under her own legal traditions, due to their suppression by the state, Neel turned to the Canadian law to attempt to gain a measure of control over the story and crest depicted in the pole. In 1951, Neel was issued a copyright registration certificate evidencing the vesting of the copyright to the pole in herself and in her husband and collaborator, Ted Neel.4 The protections afforded under Canadian intellectual property laws do not map well onto cultural property such as crests and stories, however. Such laws were developed in a cultural context foreign to the Kwakwaka’wakw and serve different goals than do the Kwakwaka’wakw legal traditions governing cultural property. As this article will further demonstrate, copyright is an imperfect solution to the concerns of the Neel family, and the Kwakwaka’wakw generally, surrounding the misuse of cultural property. In this chapter, I intend to shed light on the differences between the treatment of cultural property under the Kwakwaka’wakw legal order and Canadian intellectual property laws. I will do so by examining the differences between Kwakwaka’wakw legal traditions surrounding the

338  Vanessa Udy

Victory Through Honour pole, as articulated by members of Neel’s family, and Canadian copyright law and trademark law. I will then turn to enquire whether the legal approaches to the Neels’ cultural property can be reconciled despite their divergences. This analysis will conclude with thoughts on how the gap between the Canadian law and Kwakwaka’wakw legal traditions may be bridged, seeking guidance from the “wise practices” model as articulated by Cynthia Wesley-Esquimaux and Brian Caillou.5 It bears mentioning that learning an Indigenous legal tradition as an outsider, a settler in my case, is not without its challenges. In this chapter, I refer as much as possible to teachings directly from nogad, or Kwakwaka’wakw elders and knowledgeable people,6 as expressed in their own words.7 While this chapter holds up the teachings of nogad, the reader should be cautioned that the ideas contained herein were not developed in consultation with community members. As such, any misinterpretations of Kwakwaka’wakw laws or culture remain my own. The contents of this chapter are not intended as a definitive description of Kwakwaka’wakw laws governing cultural property, but rather as an outsider’s perspective on a small slice of Kwakwaka’wakw legal traditions. My hope is that this chapter leaves enough room or even opens up space for Kwakwaka’wakw voices. I also acknowledge the potential irony in this chapter: to educate outsiders on Indigenous laws risks unjust appropriation of such knowledge.8 For these reasons, my conclusions remain open to contestation, dialogue, and debate. Deep community consultation must occur before implementing any solution to the misappropriation of Kwakwaka’wakw cultural property, including my own prescriptions, in order to keep Indigenous laws under community control.9 Defining Cultural Property Ellen Neel’s connection to the Victory Through Honour pole is a deep, ancestral one.10 The story represented by the pole is the Kwikwasut’inuxw origin story of the five tests of Tsikumayi, the magician of the red cedar bark from whom the Kwikwasut’inuxw are said to be descended. According to some versions of the oral tradition, Tsikumayi is Kolus’s earthly human form after having removed his mask. He is also considered the ancestor of Neel’s ’namima, a type of extended kinship group in the Kwakwaka’wakw legal tradition capable of communally owning property. According to the story depicted by the pole, Tsikumayi proved himself to the mystic Khanekelaq and the creatures of the ocean’s depths through supernatural feats. In recognition of his status, Tsikumayi was gifted

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a totem pole bearing the very same crests depicted on Victory Through Honour. The following is an account of the story published in a church circular: Tsikumayi was the great magician of the Red Cedar Bark when Khanekelaq, a great mystic character, came to visit Metap on Viner Sound. At that time Khanekelaq cut off Tsikumayi’s head, but the head and body came together again. Tsikumayi was then pushed into a box and thrown into the fire. Again he came to life. At last a heavy weight was fastened to his feet and he was thrown into the sea. He sank down, down to the domain of Konigwis the great lord of the wealth of the deep, where he saw all about him the people and things of the ocean’s depths. The earthly visitor was recognized as Tsikumayi and was shown the great mystic cradle dance and was given the choice of all things for himself and his heirs. Tsikumayi was also told to take the totem pole he saw there and commemorate his great future Yawkwas with it. On this pole were the denizens of the deep – Nannis the great monster ocean grizzly bear; Maukinuk, a powerful man; Waakees the frog; Kuuma the bull head. When Tsikumayi came to the surface again with outstretched arms – as is done in the Red Cedar dances – Khanekelaq was there waiting for him. The great mystic one recognized Tsikumayi as immortal and presented him with the frog and its power for his dance. This Tsikumayi cast out from him at Metap in order to show his supernatural attainments. There a monster stone shaped in the form of a frog marks the spot. Kolus, the great spiritual thunder bird which was the ancestor of Tsikumayi adorns the top of the totem pole.11

According to oral histories of the Neel family, the rights to the Four Tests of Tsikumayi stories and the ownership rights to any pole depicting the stories were brought into their lineage through marriage. By the account of Lou-ann “Ikw’ega” Neel, Ellen Neel’s granddaughter and a repatriation specialist at the Royal BC Museum, the rights were passed down through one of Ellen’s grandfathers.12 In speaking with Carolyn Butler Palmer, who conducts research with the Neel family on Ellen Neel’s life work and contributions to Northwest Pacific Coast art, one of Ellen’s daughters informed her that the rights were passed down through Ellen’s grandmother, Sara Nina “Neg’ega” Finlay, whose dowry may have included those rights.13 According to the family’s oral history, while ownership of the poles is attributed to the Neel family, the rights to the Four Tests of Tsikumayi stories are shared or communally owned by Neel’s ’namima.14 The family views the totem pole, and associated crests and stories, as intrinsically bound together. This is consistent with the wholistic

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understanding of cultural property which emerged from a study led by Catherine Bell and conducted in consultation with Andrea Sanborn, the U’mista Cultural Society and the ‘Namgis Nation. The Kwakwaka’wakw Elders interviewed for the study took the term “cultural property” to mean a very wide variety of things. Their use of the term did not ­distinguish between the tangible and intangible; rather, it was used in a wholistic fashion. Elder Andrea Sanborn explained: [M]y whole existence as Andrea is cultural property. It’s who I am. It’s all the traditions of the Kwakwaka’wakw that belong to me and belong to our people. It’s the language, the Kwak’wala language and, most importantly, our values we have as a people, maya’xala, which means respect or treating someone good or something good. It’s protecting all our songs and dances and history. It’s protecting our land because all the land base comes out of our creation stories in this area. That’s cultural property. So those are the things. It’s family passing on family values and the history of each family and all the treasures they own culturally.15

What are conceived as different types of property under Canadian law (tangible/intangible, personal/real) are considered to be interconnected in Kwakwaka’wakw culture.16 The Kwakwaka’wakw don’t distinguish between tangible/intangible, personal/real.17 Different types of cultural property are inseparable from a larger whole. In her thesis on ownership rules surrounding cultural property, Kwakwaka’wakw scholar Lucy Bell argues: “[Y]ou cannot arbitrarily separate the land from its resources or from the stories or songs and corresponding dances that arise from the land or its resources.”18 When asked what is meant by “cultural property,” participants in interviews identified a wide range of things, both tangible and intangible, including “land, medicines, songs, history, values and language.”19 Unlike the common law, Kwakwaka’wakw legal traditions do not make divisions between types of property and they connected cultural property with values and spirituality (gifts from the Creator that are meant to be used). Cultural property is seen as part of a whole and bears little meaning when disembedded from context. Cultural property is connected to rights and responsibilities of a certain group or individual.20 The Kwakwaka’wakw concept of cultural property is not to be confused with Canadian understandings of “intellectual property” with their commercial connotations.21 Whereas the ability of an individual to alienate her rights to her intellectual property is a cornerstone of intellectual property laws, not all cultural property may be alienated or commodified under Kwakwaka’wakw laws.22 Further, when such property is alienable,

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it is within the context of a system of exchange that is very different from Western capitalism, the economic system within which intellectual property rights were developed. When looking at Indigenous economies such as the Kwakwaka’wakw one, it is important to understand that wealth is defined differently, not as capital accumulation, but as networks of relationships that connect people and enhance their lives.23 The Neel family’s understanding of ownership of their cultural property is also relational. It is closely tied to their identity as a family and anchors them in time and place to Metap (also called Meetup) on Gilford Island.24 This is illustrative of the Kwakwaka’wakw understanding of their relationship to cultural property as one of belonging. Some of the attributes of the “owning as belonging” relationship25 resemble the rights of a property owner: the right to restrict third-party access and the right to be associated with the object. Other elements of the relationship more closely resemble the principle of guardianship.26 Owners and users of cultural property also have responsibilities in relation thereto. Rights may be given to use the cultural property, but this permission may create new and ongoing responsibilities for the owner, the transferee, their family, a group within the community, or the community as a whole. These responsibilities can include maintaining the integrity of the cultural property, giving proper acknowledgment, or using it in the appropriate context, to give but a few examples.27 Under the potlatch system, the integrity of this type of cultural property is protected thanks to common knowledge of the attribution of ownership. This knowledge is achieved by the public recital of stories and oral histories, or, as the anthropology literature terms it, the display of privileges, at potlatches.28 Permission is required for the use of such cultural property by third parties and failure to comply with protocols on use and responsibility is considered a disrespectful and wrongful form of appropriation.29 Copyright – A Primer In registering a copyright over the Victory Through Honour pole, it is possible that Neel was attempting to wield a tool of Western modernity, the copyright, in a creative manner informed by her Kwakwaka’wakw culture. This course of action would have been a wise practice indeed, as Wesley-Esquimaux and Caillou argue that successful Indigenous economic leaders must ground their decisions and actions in their identity and culture. Copyright law may help approximate the legal protections which flow from Neel’s ownership of the Victory Through Honour pole and the crests and stories embedded within it under Kwakwaka’wakw legal traditions. It prohibits the unauthorized reproduction (as well as the performance

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and telecommunication) of literary, dramatic, musical, and artistic works. This entails that, during the term of the copyright, any person would be prevented from using the image of the pole or replicas thereof without the permission of Neel. Further, as the holder of the copyright, Neel would have been entitled to request at least a share of any profits made from the use of the image of the pole. In addition to copyright, an artist also benefits from moral rights, which protect, among other things, the right to the integrity of the work. This means that Neel’s work was protected from distortion, mutilation, or other modifications that would be prejudicial of her honour or reputation.30 Presumably, as the carver of Victory Through Honour, Neel could have invoked her moral rights to prevent unauthorized and inappropriate use of the pole, for example as a goal post. Copyright and moral rights would have been a useful legal tool for Neel in her quest to prevent use of the pole that would have been deemed inappropriate or unauthorized under Kwakwaka’wakw legal traditions. However, intellectual property laws are also at odds with aspects of Neel’s rights under Kwakaka’wakw law, which she sought to enforce through the 1948 ceremony. Differences between Neel’s rights under Canadian law and Kwakwaka’wakw law include the object benefiting of protection, the people able to invoke protection and the length of protection. a) What Does Copyright Protect? One difference between Canadian copyright laws and Kwakwaka’wakw legal traditions is the elements of the pole which benefit from protection. Copyright laws only protect the expression of an idea (in this case, the image of the pole in two and three dimensions) and not styles or themes. This is because the latter are neither in fixed form nor an original creation of an artist, having been passed down through generations.31 As a consequence, anybody, including the student union, would be free to appropriate the styles, stories, themes and crests depicted in the pole and use them in a fashion contrary to the customs of the Kwakwaka’wakw. Currently, copyright laws are viewed as facilitating, rather than preventing, wrongful appropriation.32 Moreover, the copyright does not cover the Thunderbirds’ name. In fact, in 1972, UBC registered THUNDERBIRDS as a trademark,33 which provides it with the exclusive right to market and sell goods and services using that name. This has a few implications for the Neels and other members of the ’namima who share the right to the thunderbird crest under Kwakwaka’wakw legal traditions. The first is that UBC could use

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the THUNDERBIRDS name to sell products that the Neels might deem inappropriate.34 The second is that UBC could, in theory, prevent other members of the ’namima from providing goods or services under the THUNDERBIRDS name. This could negatively affect people and companies having ties with these traditions by making it difficult for them to establish distinct trademarks of their own in the future.35 It could limit potential licencing and endorsement opportunities for the Kwakwaka’wakw, if that is an economic avenue they wish to pursue. Third, UBC has no obligation to account to the Neels, the ’namima, or anyone else for that matter, for profits made from the use of the trademark, which may be used as the basis of lucrative product franchising arrangements. All three of these scenarios may be in direct contradiction to the laws of the Kwakwaka’wakw. b) Who Benefits from Copyright? The second discrepancy between Canadian and Kwakwaka’wakw laws concerns the owner of the rights in the totem pole and the other elements embedded therein. Canadian intellectual property rights (or IPRs), including copyright and trademarks, place emphasis on individual ownership.36 For instance, a copyright is vested in an individual and identifiable author. Therefore, under Canadian law, the registered owners of the copyright in Victory Through Honour were Ellen Neel and her husband, not the ’namima. In the case of the trademark in the THUNDERBIRDS name, the owner, too, is an individual, this time a corporate one, UBC. While it would be too simplistic to assert that all Kwakwaka’wakw cultural property is communally owned, the emphasis in Kwakwaka’wakw legal traditions in this specific case is on communal ownership and control of access to cultural property.37 Under Kwakwaka’wakw law, the thunderbird crest is communally owned by the ’namima.38 Intellectual property rights, such as the Neels’ copyright or UBC’s trademark, are assigned to the individual artist or registrant.39 Only Neel and her husband, and not her ’namima, held an enforceable IPR under Canadian law. This illustrates the tension between the communal values inherent in Kwakwaka’wakw legal traditions and the private property logics underlying Canadian intellectual property law, and how the latter may actually sanction practices that would otherwise be prohibited under the former.40 c) Temporal Scope of Copyright and Public Domain A third discrepancy between the rights extended by Canadian copyright laws and Kwakwaka’wakw legal traditions is that they do not have the same temporal scope. Whereas the rights to use a crest under Kwakwaka’wakw

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law may, in theory, benefit from a temporally unlimited protection and be passed down through generations, copyright is limited in time. Copyright and moral rights only subsist for a period of fifty years ­ ­following the death of the artist. In this case, 2017 marked the fiftieth anniversary of Neel’s death. Her heirs therefore no longer have recourse under Canadian intellectual property law for the unauthorized use, reproduction, defacement, or destruction of the totem pole. Liberalism and Capitalism as Contrasted to Kwakwaka’wakw World Views Ultimately, the conflict between Kwakwaka’wakw legal traditions and Canadian intellectual property laws arises due to ontological differences between the philosophy underlying Canadian intellectual property law and Kwakwaka’wakw world views. The values and end goals of each are distinct and at times conflicting. The law of copyright emerged within the context of the proliferation of liberalism and capitalism in the West.41 It is designed to incentivize ­innovation by rewarding individual artists and authors with a special bundle of exclusive economic rights to their original work, which they may sell or licence for profit.42 These rights are limited in time; once an IPR expires, its subject matter enters the public domain and becomes available for public use, inspiring future generations of inventors and artists and reenergizing the cycle of creativity.43 Framing the question as one of intellectual property eclipses the sacred, non-economic values that underpin Kwakwaka’wakw art. Though many Kwakwaka’wakw, including Ellen Neel, have made a living through art, they also produce art to express relationships of belonging. As IPR systems fail to recognize that humans are not always driven by profit, these other objectives fall to the wayside. In the words of Vandana Shiva, [IPRs will] inevitably lead to intellectual and cultural impoverishment by displacing other ways of knowing, other objectives for knowledge creation, and other modes of knowledge sharing … Central to the ideology of IPRs is the fallacy that people are creative only if they can make profits and guarantee them through IPR protection. It negates the creativity of those not spurred by the search for profits. It negates the creativity of traditional societies.44

As a knowledge protection system, the Kwakwaka’wakw legal order does not typically seek to achieve the same profit goal as Canadian intellectual property laws. It is worth reiterating that the Kwakwaka’wakw conception

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of ownership is relational and its focus is on the development and preservation of group identity for the benefit of future generations. Moreover, IPRs are based on the ability to divorce an idea from its material expression, a concept that is foreign to the Kwakwaka’wakw wholistic understanding of cultural property. 45 Intellectual property law is concerned with the legal rights that arise in relation to intellectual activity as distinct from the tangible objects in which knowledge is associated. In other words, IPRs protect the material expression or embodiment of an idea, not the idea itself.46 For example, copyright requires that a protected work exist in a fixed material form. The oral versions of the story in Victory Through Honour do not meet the requirement of fixation inherent in IPRs. Though the version of the story printed in the church circular was covered by copyright, that copyright was vested in the author of the circular, not in Neel’s ’namima. In addition, the copyright would not have prohibited the retelling of the story in different words. As for the crests depicted in the pole, they might have benefited from the protection of copyright, so that exact replicas could not be made by unauthorized third parties. However, Neel’s copyright did not restrict third parties from using the creatures that the crests represent in their artwork, provided that the latter are sufficiently distinguishable from Neel’s. Now that Neel’s copyright has expired, the image of the totem pole is in the public domain. When it comes to cultural property, the Kwakwaka’wakw do not appear to have a concept equivalent to a public domain that may be accessed and used in an unregulated manner. Cultural property usually belongs to a family or group in perpetuity.47 As these discrepancies between intellectual property laws and Kwakwaka’wakw legal traditions illustrate, intellectual property laws can create a situation where Indigenous groups are excluded from the management of their cultural property according to their traditions, all while facilitating its appropriation by outsiders. This double move has been likened to the expropriation of Indigenous land by colonial powers. The late Greg Younging, who was a scholar at UBC from the Opaskwayak Cree Nation, delivered a paper to the WIPO in 2010 regarding the failure of intellectual property laws to protect traditional knowledge (or “TK”), in which he stated, “Just as Indigenous territories were declared as Terra Nullius in the colonization process, so too has TK been treated as Gnaritas Nullius (Nobody’s Knowledge) by the IPR system and consequently flowed into the public domain along with Western knowledge.”48 Grounding herself in the wise practice of staying true to her identity and culture, Ellen Neel supplemented the lacunae of the copyright legislation by drawing on her nation’s legal traditions. The 1948 naming ceremony pushes back against this idea that the Thunderbirds’ name

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is in the public domain by reinscribing it within Kwakwaka’wakw legal traditions as the property of Neel’s ’namima. The Potlatching Functions of the 1948 Ceremony In light of the Kwakwaka’wakw understanding of cultural property as being tied to belonging, what was the purpose of the 1948 naming ceremony, other than reiterating the Thunderbirds’ name as the property of a ’namima? To understand what Neel was attempting to achieve, one must look to the potlatching traditions of the Kwakwaka’wakw, which govern transfers of cultural property, including names. Though it was not officially named a potlatch and it is unclear from written resources whether witnesses were feasted or received gifts, the ceremony was a formal affair. Certain ceremonial elements that are present in potlatching were on display at the event: Chief Scow came dressed in full regalia carrying a talking stick; lengthy speeches were made; and guests of honour were identified and seated accordingly. Neel’s goals in conducting the ceremony therefore may have been inspired by the potlatch. It appears she may have intended to forge relationships bearing reciprocal responsibilities with UBC, the Student Council, and the witnesses present. Much of the literature on the potlatch places it at the centre of Kwakwaka’wakw legal, political, economic, and spiritual life.49 It is an institution through which laws, values, rights, and responsibilities in relation to cultural property of the Kwakwaka’wakw find their expression.50 Laws regarding the ownership and use of cultural property are embedded within this ceremonial context.51 It is the forum for displaying the cultural property found in a family’s “box of treasures” and for disputing ownership claims.52 More specifically, among the Kwakwaka’wakw, a potlatch is an event during which a host group formally invites one or more guest groups to engage in song, dance and feasting, the whole following elaborate etiquette patterns and tied into the Kwakwaka’wakw system of protocol and rank.53 Potlatches are typically held to commemorate an event of importance to the community, such as a death, a marriage, the naming of children, or a pole raising. During the ceremony, the host group displays its traditional privileges (hereditary rights to dances, songs, stories, carvings, etc.) that form the basis of their status and recounts the story of their origins and the history of their transfer.54 Guests are called upon to witness and validate those claims in exchange for gifts.55 Anthropology literature is mostly concerned with the role of the potlatch in the construction of social standing, which was traditionally of great importance in the highly stratified Kwakwaka’wakw society. Homer

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G. Barnett proffered that the potlatch “had as its purpose the identification of an individual as a member of a certain social unit and the defining of his social position within that unit,”56 a thesis supported by the subsequent work of Philip Drucker and Robert F. Heizer.57 The importance of rank, however, has changed over time. With the changes to the ranking system in the late 1800s, which are described later in this chapter, rank took on a different significance. Today, though rank is still considered in deciding the value of gifts and the order in which they are given,58 its importance has diminished in other ways. One notable change is that seating arrangements have been democratized and people are no longer seated according to rank.59 Attendance is also now open to the whole community, whereas guest lists used to be restricted to those having received traditional names.60 Rank should not, however, be confused with political authority.61 Lucy Bell warns of this: “It strikes me that despite having a ranking system that we don’t live our lives in a hierarchical manner. As I have mentioned before our ranking system helps to determine who speaks first or who is served food first; it does not dictate a hierarchy of leaders and subjects.”62 Rather than viewing the potlatch as a hierarchical system of title and social standing, Indigenous Elders and authors, including Coast Salish business scholar Dara Kelly, propose an alternative reading of the potlatch. Kelly emphasizes the role of the potlatch in structuring affinal relationships and kinship behaviour forms. In other words, the purpose of the potlatch in this way of thinking is relational and fosters a sense of belonging.63 Chiefs holds potlatches to maintain ties with other ’namimas through the distribution of property.64 Relationships of belonging are expressed through song, dance, stories and names, in which individual and community identities are grounded, and validated by the practice of witnessing.65 It is through the potlatch that the type of cultural property discussed in this chapter finds its full expression as a node through which relationships of belonging are expressed. One of the ways people foster a sense of belonging in the wider community in the potlatch system is through the tradition of naming. In many Indigenous cultures of the Pacific Northwest, in order to obtain the right to use a name, one must have had it bestowed upon them through ceremony, usually during a feast or potlatch.66 The Kwakwaka’wakw are no exception to this practice.67 Potlatching is in fact a prerequisite for the community to recognize the assumption of a name by an individual. According to Drucker and Heizer, “An Indian might be entitled by birth to a noble name, a name that defined his position in native society as one entitled to honour and respect. Yet he could never use that name or any of the accompanying privileges unless he gave a potlatch at which

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he testified publicly to his hereditary right to assume it.”68 Traditional names were therefore unrecognized by the larger community unless validated and communicated to members through a potlatch. Once the ceremony took place, the recital of oral histories, the assumption of hereditary rights and other transactions occurring or recognized during the potlatch were considered to be legally binding. As Elder Andrea Sanborn reported to Catherine Bell, “Anything that is conducted, any ceremonies that are conducted and information given to the people, that is the law. If, if a song is being identified as being passed down from a chief to his son, or from whomever, and it’s done in a potlatch ceremony, that’s the law.”69 In short, in engaging UBC in a modified potlatch, Ellen Neel was ­drawing on wise practices grounded in her culture and identity as a ­carrier of the thunderbird crest to form a relationship or partnership of sorts with UBC. Reciprocal Responsibilities of Neel and UBC This sense of belonging, the foundation of the relationship or partnership Neel was attempting to forge with UBC through the 1948 ceremony, has reciprocal responsibilities attached to it. In Kwakwaka’wakw culture, names carry “a range of roles, responsibilities, and obligations, balanced with rights, privileges, and prerogatives.”70 At the feast, a person thus receiving a name must “know the account of the name, understand his or her upcoming responsibility as a name holder, and be responsible and respectful to his or her namesake.”71 Relationships and responsibilities extend beyond the naming ceremony. They extend far into the past, as Kelly explains within the context of Coast Salish gatherings: [It] allows one’s community to make a direct connection between an ancestor who carried the name previously, and the individual who receives the name in the ceremony. Through this connection, the name serves to unleash the potential of individuals, or of the current generations of Coast Salish people, to unfold in relationship with their ancestors. It is also a way in which the ancestors have ongoing roles in the ceremonial life of the community.72

Relationships and responsibilities are also forward-looking. Ultimately, there is an assumption that “you always owe something in exchange for the freedom to be a part of the community and to share in the greater pool of resources (wealth), including having access to knowledge and

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genealogy.”73 Reciprocal responsibilities in the potlatch system are thus conceived as reaching both indefinitely into the past and the future.74 The potlatch and, more broadly, Kwakwaka’wakw legal traditions are concerned with economic justice: they focus on wealth distribution, equity, and strengthening relationships one can rely upon for material or spiritual aid in times of need. In exchange for “making good” UBC’s use of the Thunderbirds’ name, there was perhaps an expectation on Neel’s part that UBC would return that generosity, not necessarily to her personally or even to her ’namima, but to a larger community of Indigenous students. Indeed, there were responsibilities that came with the Thunderbirds’ name, to which Chief William Scow alluded during the ceremony, when he announced, “The totem has been carved for you by our two best tribal carvers. It has a long and an honourable history, a totem of which your teams have every right to be proud. It is yours now. If you follow the precepts accepted with it, you cannot fail.”75 In an interview conducted after the ceremony, Neel elaborated, To the Native people of the whole province we can give our assurance that your children will be accepted at this school by the Staff and Student Council, eager to smooth their paths with kindness and understanding. We need now only students to take advantage of the opportunity, so that some day our doctors, lawyers, social workers and departmental workers will be fully trained University graduates of our own race.76

Both Neel’s and Scow’s quotes are engraved on a plaque next to the totem pole’s current location, outside Brock Hall, where many of UBC’s administrative services are housed. Neel’s and Scow’s choice to make these statements in a public ceremonial forum, and the memorialization of their words on a commemorative plaque in a public space, could be read as creating a responsibility on the part of UBC faculty and e­ mployees and the Student Council to break down systemic barriers that hamper Indigenous students’ access to education. As previously mentioned, responsibilities attaching to a name are intergenerational.77 Though Neel has since passed and her copyright has expired, the responsibilities which come attached with the Thunderbirds’ name do not end there; they are owed to future generations as well. There is a sense among the Neel family that UBC has perhaps not lived up to its ongoing responsibilities. The family has expressed to Butler Palmer a desire to see a scholarship fund created in Neel’s name.78 Another way UBC could fulfil its responsibilities is in assisting the Kwakwaka’wakw in creating their own higher education institution. Though not expressly calling upon UBC for help, Elder Andrea Cranmer has

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highlighted the need for a community-based school where Kwakwaka’wakw adults can reconnect with their traditions: [W]e need a college. We need a First Nations college that teaches history, that teaches language, that teaches the beliefs and values … going back to the land … going on the canoes, going to the rivers, bathing in the rivers. We need a cultural university in this community because we are educating our young people. They get singing. They get dancing. They get Kwak’wala once in a while. They have community members go in and share their story about legends and all those kinds of things. But the adults aren’t getting it. The adults don’t have the opportunity to learn.79

Such a place-based initiative would build upon the idea that reciprocity isn’t just between people, it is embedded within a larger web of interactions between people, place and other elements of creation.80 Reciprocal Responsibilities of Witnesses In displaying her privileges and conferring rights of use upon UBC, Ellen Neel was deploying another of Wesley-Esquimaux and Caillou’s wise practices in creating a system of accountability to hold UBC to its responsibility of reciprocity. In addition to being the forum in which a relational form of ownership and constitution of responsibilities unfold, the potlatch also serves an important educational purpose.81 Recent literature by Indigenous thinkers places emphasis on the role of the potlatch in knowledge creation.82 According to Haisla scholar Kundoqk Jacquie Green, “Witnessing is a method of gathering and recording historical and statistical knowledge of our people, such as who has passed on to the spirit world, which families have newborns, and who will inherent chieftainship names.”83 Potlatches are also a way to share and preserve history. They remind participants of family histories behind names and their connections to the land.84 Elders participating in Catherine Bell’s study confirmed the role of the potlatch in the constitution and preservation of knowledge among the Kwakwaka’wakw. According to Vera Newman: “It’s supposed to give an example, a record – the history of each of those dances and the names that go with it – in front of our people because they are there to witness the property that belongs to the family.”85 Elder William Wasden Jr. elaborated: [The chiefs are] inviting the people to publicly show them whether it’s just through songs, or song and dance, relaying their history through, you know,

Bridging Intellectual Property and Cultural Property Laws  351 song and dance. [A]nd that’s what it is. And the speaker gets up and tells the history. So what the host is doing is sharing that family’s history with the people that have come to witness and, in the end, paying them according … to what … their standing is. [Giving them] gifts, so that they will remember that forever … and … be able to repeat the story. And that’s why the speaker in the Big House is so key, because he is the one who relates the stories of the dances, relates the name that’s associated with the dance, [tells] who is assuming the dance and where it comes from. And always, with everything that is done, the speaker is retelling the history that goes along with these specific ceremonies and different activities that are going on.86

In addition to informing guests of previously constituted or new knowledge, potlatching brings witnesses into the fold of reciprocal relationships. The ceremony creates a reciprocal relationship between the host and the guests: in exchange for the receipt of food and gifts, guests are expected to witness and remember the details of the happenings at the ceremony, including the social status associated to names bestowed and privileges displayed.87 The guests and the host are therefore responsible and accountable for the creation, validation, and remembering of the historical knowledge constituted during the potlatch.88 Gifts are given so that witnesses will remember and recount the stories told.89 The potlatch also served as an occasion to remind participants of previously constituted knowledge about social relationships, connections to the land and the environment and hold people accountable to their responsibilities in respect of such knowledge.90 Kwakwaka’wakw laws surrounding cultural property rely upon common knowledge and respect of ownership and protocol for use. In Catherine Bell’s study, Andrea Cranmer revealed the importance of having knowledgeable members of the community present to remind others of protocol surrounding cultural property: [J]ust ’cause a young person is learning how to sing songs, it doesn’t give them the right to be in any public forum to be singing inappropriate[ly] or out of turn, kind of thing. So I believe that older members and wise people and knowledgeable people need to be present during the sharing of these songs so that the beliefs and values go along with what they are doing, and it’s not just something cool to do.91

During his interview for the same study, William Wasden Jr. recounted the story of a woman, Elsie, who played a tape of a sacred song that belonged to her family in the Big House in order to inform people of its origin and sacred nature. She said, “This is my mother’s song and I would

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appreciate it if people would stop just getting up and singing it freely.” Wasden viewed this interaction as an attempt on Elsie’s part to fulfil her responsibilities towards the song.92 With respect to the general public, the purpose behind the 1948 ceremony may have been twofold: first, to educate the public as to the proper protocol for use of cultural property under Kwakwaka’wakw law; second, to position UBC in the Indigenous community and foster an understanding of that position by others, 93 creating accountability. During the ceremony, Chief Scow announced to the crowd, “On behalf of Ellen and Edward Neel, and with full consent and approval of our tribal council and our people, I present this Totem to the Alma Mater Society of this University. I give to you also the right to use the name Thunderbird for your teams. This is according to the laws of my people, and is hereby legal for the first time.”94 Implicit in this statement is that the use of the Thunderbirds’ name was not legal prior to the ceremony. Scow was communicating that community consent is necessary to use Kwakwaka’wakw cultural heritage. Seeking permission and acknowledging original entitlements are particularly important to the Kwakwaka’wakw when it comes to outsider use of cultural property. Failure to do so is frowned upon and viewed as wrongful appropriation and disrespectful.95 Further, statements were made to the crowd that faculty, staff, and the Student Society would from that time on make UBC a welcoming environment to Indigenous students. In his response to Scow’s speech, Dave Brousson, then the president of the Alma Mater Society, affirmed, “[I]t is my hope that when this totem has been erected in a place of honour in front of our own Brock Hall, that it will be a constant reminder to every person of Native descent at the University, that this institution is peculiarly his. I hope also that it will be a constant reminder to this and future Student Councils to make Native students especially welcome on our campus.”96 If those responsibilities were to be unfulfilled, then Neel and her community could rely on the public to remind UBC of its responsibilities towards Indigenous students. Students, faculty, and other visitors on campus are also informed by the pole and its accompanying commemorative plaque of their ongoing role in holding UBC accountable for fulfilling its responsibilities. Sui Generis Legislation These observations could be of value for Canadian law. Canada is reaching a turning point in its relationship with Indigenous legal orders. The federal government has committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples,97 which provides at Article 5

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that “Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.” Article 31 provides that “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.” Also of relevance is Article 34, according to which, “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.” In addition to international pressure to recognize the relevance and applicability of Indigenous legal orders, there is also pressure from within the country for such recognition. The Truth and Reconciliation Commission has called upon the federal government to recognize and implement “Aboriginal justice systems.”98 Further, there is judicial precedent for the recognition of the applicability of Indigenous laws within Canada.99 In particular, courts now must look to Indigenous laws to inform their decisions on Aboriginal rights and title under section 35 of the Constitution.100 Both Darcy Lindberg (chapter 7) and Miles Richardson (chapter 8) argue in this volume that, in order to be truly transformative, the process of reconciliation must involve a shift in the conception and performance of Indigenous-settler relationships, including the ways in which legal systems interact. Though Richardson states that a true nation-to-nation requires the restoration of Indigenous jurisdiction over territory and other matters, he also accepts the proposition that Canada will continue to exist and, presumably, so will its jurisdiction. The question becomes, how can we envision the co-existence of two jurisdictions in a same territory, regarding the same subject matter? Though daunting, the question is not without answer. Settler society has managed to answer this question for itself in resolving matters arising from intersecting and sometimes conflicting federal and provincial jurisdictions through constitutional principles and jurisprudence. Given their divergences, the question remains how Canadian and Kwakwaka’wakw laws surrounding cultural property will interact once the latter is recognized. Respectful interactions between Canadian and Kwakwaka’wakw laws could be fostered through positive enactment by the state of legislation that mirrors or recognizes Indigenous laws.101 “Sui generis” is the term commonly used to describe regimes designed to

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protect traditional knowledge and traditional cultural expressions outside of conventional intellectual property law systems.102 Most international instruments that call for the protection of traditional knowledge and traditional cultural expressions contemplate the adoption of sui generis laws by signatory states.103 If this solution is to be appropriate, it must be grounded in wise practices informed by the specific cultures and identities of nations, communities, and families. Though laws can be reconciled and harmonized through the adoption of legislation that provides for the recognition of Indigenous law by the Canadian state and the enforcement of such laws within Canadian courts, there exist several disadvantages to this approach. One difficulty in integrating Indigenous law into binding state law is Anthony Taubman’s “paradox to globalise diversity,” which begs the question: “How can an international instrument consider the countless customs and customary law of indigenous peoples with regard to their cultural heritage?”104 Given the diversity of Indigenous peoples within Canada, the question retains its relevance in the Canadian context. National legislation must resist the urge to adopt a general, pan-Indigenous solution to the problem. Sui generis legislation must be carefully tailored to address the concerns of a specific people in a given place. The solutions I suggest in this chapter bear that in mind and are made with the intention to further solutions to legal problems identified by the Kwakwaka’wakw by drawing on their own legal traditions. Though these solutions might be transposable to culturally similar communities, they may not be relevant to communities whose legal traditions do not include potlatching. Second, incorporating Indigenous laws into national laws risks the misinterpretation of customs by settler legislators and courts.105 It is therefore important that the legislative drafting process and the creation of new institutions with decision-making power engage local knowledge keepers, including Elders, in a meaningful way. Disputes in the Kwakwaka’wakw big house, where the potlatch and other gatherings take place, are resolved by nogad (knowledgeable people, usually Elders) who have knowledge of nuyem (Kwakwaka’wakw stories).106 These people are identifiable by the community and should be consulted in coming to a solution. On the one hand, there is resistance within the community to sui generis laws. Such laws are solutions imposed from outside Indigenous legal orders and have little resonance within structures of Indigenous governance. In discussing laws surrounding Kwakwaka’wakw cultural property, Lucy Bell reflects on calls for sui generis laws to protect traditional knowledge and expresses her hesitance with respect to Canadian laws as a solution to unauthorized appropriation. She feels that Kwakwaka’wakw law

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is best suited to address infringement.107 None of the Elders she interviewed thought state law could offer protection to cultural property.108 Bell’s uncle Peter Knox reasoned that outsiders don’t understand where cultural property comes from or how it functions in a Kwakwaka’wakw person’s everyday life, so a sui generis law developed by those same outsiders can’t be of help.109 Likewise, participants in Catherine Bell’s study preferred to look to traditional values, beliefs, and principles taught by elders to find the tools to protect cultural property.110 On the other hand, not all Kwakwaka’wakw are opposed to the idea of a sui generis law to protect cultural property. Employees and board ­members of U’mista called for the reinforcement of existing laws to protect ­material culture.111 A common sentiment among participants in Catherine Bell’s study is that outside laws need to respect Kwakwaka’wakw ­concepts of belonging and ways of life. Elder Ethel Alfred says, “We want laws in place by the government so that people will not disturb our things that are sacred to our people.”112 Third, there is the risk of flattening Kwakwaka’wakw law by nailing down norms, beliefs, and societal orders that ought to be able to smoothly develop and evolve within their traditional and lived contexts.113 To reduce Kwakwaka’wakw law to writing could risk stripping it of dynamism and fluidity by confining it to a singular context. Separated from the land, law becomes voided of its spatial relationships that people on the land maintain amongst themselves.114 This could perhaps be avoided if interpretation and enforcement is left in the hands of the Kwakwaka’wakw. Also, should Kwakwaka’wakw laws be recognized by Canadian legislation, it would be important not to codify them too heavily so as to leave the community with flexibility in interpreting and applying their own legal traditions. Parallel Recognition Spaces Examples of sui generis legislation from other jurisdictions envisage the creation of new institutions based on Western ones.115 It is questionable whether this is necessary or desirable, when the already existing institution of the potlatch has been deployed with success as a response to these issues within the community. Perhaps legislation should focus instead on the wise practice of drawing from Indigenous nations’ pre-existing identities and cultures, and confirm the potlatch system’s jurisdiction over outsiders. Certain members of the community, including Lou-ann Neel, feel the potlatch system is an appropriate forum for outsiders wanting to acquire permission to use Kwakwaka’wakw cultural property.116 Such legislation could be inspired by anthropologist Brian Noble’s suggestion for what he calls “parallel recognition spaces.” These involve

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a strong translegal reciprocity between Canadian and Indigenous legal systems, one which works to resolve conflict without the need for one system to trump the other. “In this concept of paralleling,” he explains, “each and every Western legal action, definition, or differentiation is set against the alternative culturally based rights or legal practice of a First Nation.”117 Disputes would be adjudicated simultaneously in Canadian courts and in their Indigenous counterparts, each formally recognizing and respecting the authority of the other’s laws.118 Though it is unclear how extreme divergences between or lack of equivalent concepts within Canadian and Indigenous laws would be resolved, this should not necessarily be viewed as a fatal flaw to this approach. A multiplicity of opinion with respect to a problem can foster democratic debate and spur new and innovative solutions.119 An appropriate sui generis law would be crafted together with the Kwakwaka’wakw, bearing these criticisms in mind, all while recognizing Kwakwaka’wakw laws and their implementation through the institution of the potlatch. This is not to say that there can be no intellectual property rights in cultural property. Rather, in addition to intellectual property rights, cultural property can and should be subject to other legal rules, ones which derive from a Kwakwaka’wakw understanding of owning as belonging and which promote public education concerning Kwakwaka’wakw cultural property. Conclusion Though many people believe that intellectual property would be a natural instrument to turn to for the protection of Indigenous art from cultural appropriation, a closer analysis of copyright shows that it is ill-suited for such a purpose. Cultural appropriation is generally found to occur when it violates Indigenous legal principles concerning the use of cultural property. Those laws are very different from intellectual property laws. The scope of their protection differs from that of intellectual property in that they seek to protect ideas, whereas intellectual property laws seek to protect only the material expression of those ideas; rights which flow from property relations are often communally held whereas that is not the case in intellectual property law, which privileges individual ownership; and rights and responsibilities under Indigenous laws surrounding cultural property are often perpetual, whereas intellectual property rights are limited in time, in the case of copyright to the lifetime of the author plus fifty years. These differences are due to diverging and at times conflicting world views of the societies from which each legal system has emerged. Whereas intellectual property systems emerged from liberal and capitalist ideologies that privilege individual freedom premised on ownership, Kwakwaka’wakw laws surrounding cultural property are influenced by an

Bridging Intellectual Property and Cultural Property Laws  357

understanding of the individual as part of a larger community with which the individual is engaged in a reciprocal relationship. A relational account of the Victory Through Honour pole allows us to understand how the different parties involved in the 1948 totem dedication ceremony exercised their agency to form reciprocal responsibilities. In making right the use of the Thunderbirds’ name, Ellen Neel was likely fulfilling responsibilities towards her ancestors and her ’namima by controlling and regulating its use. She was also bringing UBC into the fold of reciprocal relations. In accepting the gift that was the pole, UBC was exercising its own agency and forming new legal relationships which bound it to Neel and the wider Indigenous community. Going forward, UBC would have the responsibility to break down systemic barriers and make Indigenous students feel welcome on campus. The crowd in attendance also played an active role in the ceremony. The pole serves as a reminder of their own responsibilities to tell the stories that were shared at the ceremony, to hold UBC accountable for its responsibilities towards Indigenous students, and to hold outsiders generally accountable for their appropriate use of Indigenous cultural property. In summary, in the wake of the potlatch ban, there is not only a need to revive Kwakwaka’wakw legal traditions but to determine how such laws must relate to Canadian laws. The notion of parallel recognition spaces could be a legitimate alternative to the current misrecognition of the Kwakwaka’wakw legal order, as it involves a robust and respectful engagement with both Canadian and Indigenous legal traditions, without privileging one over the other. It is this kind of relationship that must be taken into account if the Canadian government decides to adopt sui generis laws regarding the protection of Kwakwaka’wakw cultural property, and such laws must be carefully crafted in consultation with Kwakwaka’wakw nogad. NOTES I would like to thank Lou-ann Neel for the valuable information she provided regarding the history of the Neel family and the rights to the Victory Through Honour pole, the Four Tests of Tsikumayi stories, and the thunderbird crest. I am also indebted to Professors John Borrows and Carolyn Butler Palmer for their gentle guidance and encouragement while I was writing this chapter. Gilakas’la, miigwech, and thank you. 1 “Art and Crafts,” The Native Voice, November 1948, at 11. 2 Author’s personal conversation with Lou-ann Neel in June 2019. 3 Ibid. 4 Canadian Patent Office, The Canadian Patent Office and Register of Copyrights and Trade Marks (Ottawa: Edmond Cloutier, 1951) 79:17 at x.

358  Vanessa Udy 5 Cynthia Wesley-Esquimaux and Brian Caillou, Best Practices in Aboriginal Community Development: A Literature Review and Wise Practices Approach (Banff: The Banff Centre, 2010). 6 Lucy Mary Christina Bell, “Kwakwaka’wakw Laws and Perspective Regarding Property” (MA thesis, University of Victoria Faculty of Human and Social Development, 2005) [unpublished] at xi (hereinafter L. Bell). 7 One strategy for decolonial research practices identified by Elizabeth Carlson is to draw upon work from Indigenous scholars: Elizabeth Carlson, “Anti-Colonial Methodologies and Practices for Settler Colonial Studies” (2016) Settler Colonial Studies, at 6, http://mra-mb.ca/wp-content /uploads/ElizCarlsonAnti-colonial-methodologies-and-practices-for -settler-colonial-studies1-copy.pdf. 8 John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 25. 9 Ibid. 10 Crests are representative of a historic bond between the Kwakwaka’wakw and ancestral spiritual beings: supra L. Bell, note 6 at 85. Similarly, stories connect the Kwakwaka’wakw to their ancestors: Catherine Bell, Heather Raven, and Heather McCuaig, in consultation with Andrea Sanborn, the U’mista Cultural Society, and the ‘Namgis Nation, “Recovering from Colonization: Perspectives of Community Members on Protection and Repatriation of Kwakwaka’wakw Cultural Heritage” in Catherine Bell and Val Napoleon, eds., First Nations Cultural Heritage Law: Case Studies, Voices, and Perspectives (Vancouver: UBC Press, 2008) at 56 (hereinafter C. Bell). 11 Ronald W. Hawker, Yakuglas’ Legacy: The Art and Times of Charlie James (Toronto: University of Toronto Press, 2017) at 149. 12 Neel, supra note 2. 13 Author’s personal conversation and emails with Carolyn Butler Palmer in March 2017. 14 Ibid. 15 C. Bell, supra note 10 at 39–40. 16 L. Bell, supra note 6 at 5. 17 C. Bell, supra note 10 at 75. 18 L. Bell, supra note 6 at 41–2. 19 Ibid. at 39. 20 Ibid. 21 Lyndel V. Prott and Patrick J. O’Keefe, “‘Cultural Heritage’ or ‘Cultural Property’?” (1992) 1:2 International Journal of Cultural Property 307 at 310. 22 Lucy Bell’s work sets out basic principles that govern talking sticks, songs, dances, names, crests, and stories, stating who can own them and whether and how they may be transferred. See L. Bell, supra note 6 at 75–86.

Bridging Intellectual Property and Cultural Property Laws  359 23 Dara Kelly, “Feed the People and You Will Never Go Hungry: Illuminating Coast Salish Economy of Affection” (PhD diss., University of Auckland Business School, 2017) [unpublished] at 109. 24 “Traditional Kwakwaka’wakw territory extends from Comox to the north end of Vancouver Island and the adjacent mainland inlets from Smith Inlet south to Toba Inlet.” C. Bell, supra note 10 at 35. 25 I borrow the term “owning as belonging” coined by Canadian anthropologist Brian Noble. This is in contrast to “owning as property,” where property is commodified for exchange on a market: Brian Noble, “Owning as Belonging/Owning as Property: The Crisis of Power and Respect in First Nations Heritage Transactions with Canada” in Catherine Bell and Val Napoleon, eds., First Nations Cultural Heritage and Law: Case Studies, Voices, and Perspectives (Vancouver: UBC Press, 2008) at 465. 26 Robert K. Paterson, “Canadian and International Traditional Knowledge and Cultural Expression Systems” (2017) 29 Intellectual Property Journal 191 at 269. 27 Catherine Bell and Caeleigh Shier, “Control of Information Originating from Aboriginal Communities: Legal and Ethical Contexts” (2011) 31:2 Études Inuit Studies 35 at 41. 28 On the topic of potlatches and feasts as a method of knowledge creation and preservation, see Lee Maracle, My Conversations with Canadians (Toronto: BookThug, 2017); Kundoqk Jacquie Green, “Transforming Our Nuuyum: Contemporary Indigenous Leadership and Governance” (2014) 12:1 Indigenous Law Journal 33. 29 Philip Drucker and Robert F. Heizer, To Make My Name Good: A Reexamination of the Southern Kwakiutl Potlatch (Berkeley: University of California Press, 1967) at 66. 30 See Snow v. Eaton Centre Ltd., 70 CPR (2d) 105, [1982] OJ No 3645. 31 Simon Brascoupé and Karin Endemann, “Intellectual Property and Aboriginal People: A Working Paper” (1999) Minister of Indian Affairs and Northern Development, Working Paper, No R32–204/19991E at 10, http:// publications.gc.ca/collections/Collection/R32–204–1999E.pdf; Robert K. Paterson and Dennis S. Karjala, “Looking Beyond Intellectual Property in Resolving Protection of the Intangible Cultural Heritage of Indigenous Peoples” (2003) 11 Cardozo Journal of International and Comparative Law 633 at 640; Rosemary J. Coombe, “The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy” (1993) 6:1 Canadian Journal of Law and Jurisprudence 249 at 259. 32 C. Bell, supra note 10 at 82. 33 “THUNDERBIRDS,” The University of British Columbia, Canadian registration TMA189322, 16 March 1973.

360  Vanessa Udy 34 For examples of such undesirable products, one need only think of the lawsuit brought by the Navajo Nation against Urban Outfitters in 2012 for trademark infringement. The retailer made unauthorized use of the Navajo trademark to sell items that included socks, underwear, and whiskey flasks emblazoned with Navajo-inspired motifs. See Courtney Doagoo, “Navajo Nation Sues Urban Outfitters Inc.,” IP Osgoode, 7 June 2012, http://www.iposgoode.ca/2012/06/navajo-nation-sues-urban -outfitters-inc/. 35 Brascoupé and Endemann, supra note 31 at 22. 36 Bell and Shier, supra note 27 at 41. 37 Jo Recht, “Hearing Indigenous Voices, Protecting Indigenous Knowledge” (2009) 16 International Journal of Cultural Property 233 at 241; Paterson, supra note 26 at 239. 38 Neel, supra note 2. In fact, communal ownership is a common feature of many Indigenous intellectual property regimes: Joseph Githaiga, “Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge” (1998) 5:2 Murdoch University Electronic Journal of Law at para. 14. Lucy Bell’s MA thesis has been indispensable to informing my understanding of Kwakwaka’wakw cultural property laws. Bell identifies a lacuna in the literature with respect to Indigenous laws regarding property and knowledge. Her thesis contributes to filling that space by “shar[ing], within cultural boundaries, how ceremonies and stories reflect those laws.” L. Bell, supra note 6 at 8. She asserts in her thesis that cultural property is typically owned by a family. The chief is responsible for both the family and the property. Bell lists certain types of property, including talking sticks, songs, dances, names, crests, and stories, stating who can own them and whether and how they may be transferred (75–86). 39 Brascoupé and Endemann, supra note 31 at 15. 40 Royal Commission on Aboriginal Peoples, Report, vol. 3, Gathering Strength (Ottawa: The Commission, 1996) at 554; Rosemary J. Coombe, “First Nations Intangible Cultural Heritage Concerns: Prospects for Protection of Traditional Knowledge and Traditional Cultural Expressions in International Law” in Catherine Bell and Robert Patterson, eds., Protection of First Nations’ Cultural Heritage: Laws, Policy and Reform (Vancouver: UBC Press, 2009) at 252; Brascoupé and Endemann, supra note 31 at 11. 41 For a critique of the liberal framework on which responses by international law to issues surrounding the appropriation of local knowledge rely, see Chidi Oguamanam, “Local Knowledge as Trapped Knowledge – Intellectual Property, Culture, Power and Politics” (2008) 11:1 The Journal of World Intellectual Property 29. 42 Mohsen al Attar, Nicole Aylwin, and Rosemary J. Coombe, “Indigenous Cultural Heritage Rights in International Human Rights Law” in

Bridging Intellectual Property and Cultural Property Laws  361 Catherine Bell and Robert Patterson, eds., Protection of First Nations’ Cultural Heritage: Laws, Policy and Reform (Vancouver : UBC Press, 2009) at 320; Brascoupé and Endemann, supra note 31 at 2, 25. 43 Paterson, supra note 26 at 236. 44 Erin M. Genia, “The Landscape and Language of Indigenous Cultural Rights” (2012) 44 Arizona State Law Journal 653 at 669–70, citing Vandana Shiva, Biopiracy: The Plunder of Nature and Knowledge (New York: South End Press, 1997). 45 L. Bell, supra note 6 at 75. Bell avoids the use of the term “intellectual property” when describing cultural property, as it is a foreign concept which does not refer to the things which are owned by the Kwakwaka’wakw, such as “crests, songs, dances and the relationship that each has with a story” (39). 46 Brascoupé and Endemann, supra note 31 at 8, 14. 47 William Wasden Jr. identifies the family as the unit that controls cultural property: C. Bell, supra note 10 at 39. 48 Cited in Andrea Bear Nicholas, “Who Owns Indigenous Cultural and Intellectual Property?” Policy Options, 27 June 2017, at para. 4, http:// policyoptions.irpp.org/magazines/june-2017/who-owns-indigenous -cultural-and-intellectual-property/. See also Maracle, supra note 28. 49 See C. Bell, supra note 10 at 46. 50 Ibid. at 34. 51 L. Bell, supra note 6 at 97. 52 Ibid. at 96. 53 Drucker and Heizer, supra note 29 at 141; Wayne Suttles, “Streams of Property, Armor of Wealth: The Traditional Kwakiutl Potlatch” in Aldona Jonaitis, ed., Chiefly Feasts: The Enduring Kwakiutl Potlatch (Seattle: University of Washington Press, 1991) at 104. 54 Drucker and Heizer, supra note 29 at 8. 55 Aldona Jonaitis, “Preface” in Aldona Jonaitis, ed., Chiefly Feasts: The Enduring Kwakiutl Potlatch (Seattle: University of Washington Press, 1991) at 11. 56 Drucker and Heizer, supra note 29 at 8. 57 Ibid. at 136. 58 Gloria Cranmer Webster, “The Contemporary Potlatch” in Aldona Jonaitis, ed., Chiefly Feasts: The Enduring Kwakiutl Potlatch (Seattle: University of Washington Press, 1991) at 246. 59 Ibid. at 232. 60 Ibid. 61 Alan D. McMillan and Eldon Yellowhorn, First Peoples in Canada, 3rd ed. (Vancouver: Douglas & McIntyre, 2004) at 216. 62 L. Bell, supra note 6 at 60. 63 C. Bell, supra note 10 at 60.

362  Vanessa Udy 64 Suttles, supra note 53 at 88. 65 C. Bell, supra note 10 at 64. 66 See, for example, L. Bell, supra note 6 at 83–4; Kelly, supra note 23, generally; and Green, supra note 28. 67 Suttles, supra note 53 at 90. 68 Drucker and Heizer, supra note 29 at 33. 69 C. Bell, supra note 10 at 51. 70 Carolyn Butler Palmer, Lou-ann Neel, and David A. Neel, “Ellen Neel: The First Woman Totem Pole Carver – Gallery Guide” (Victoria: Legacy Art Gallery, 2017) at 1. 71 Green, supra note 28 at 50. 72 Kelly, supra note 23 at 272. 73 Ibid. at 260. 74 Ibid. at 85. 75 “Art and Crafts,” supra note 1. 76 Ibid. 77 Kelly, supra note 23 at 263. 78 Butler Palmer, supra note 13. 79 C. Bell, supra note 10 at 62. 80 L. Bell, supra note 6 at 5. 81 C. Bell, supra note 10 at 50. 82 See supra note 25. 83 Green, supra note 28 at 53. 84 C. Bell, supra note 10 at 49; Green, supra note 28 at 55. Respect for all things is a central value in Kwakwaka’wakw culture. Loosely translated, maya’xala means respect for all living beings, human, animals or plants, for things and for oneself. In the Kwak’wala language, maya’xala, or respect, is not a term that is reserved to interactions among humans; it refers to a value that guides Kwakwaka’wakw behaviour in their relationships with cultural property and the natural world. See Irene Isaac, “Understanding Traditional Ecological Knowledge Through Kwakwaka’wakw Story” (MA thesis, University of Victoria, 2010) [unpublished]; Donna Cranmer, “Kwakwaka’wakw Dzaxwan: The Development and Evaluation of a Cross-cultural Oolichan Fisheries Curriculum” (MEd thesis, University of Victoria, 2009) [unpublished]. 85 C. Bell, supra note 10 at 40. 86 Ibid. at 50. 87 Drucker and Heizer, supra note 29 at 8. 88 Green, supra note 28 at 53; C. Bell, supra note 10 at 49. 89 C. Bell, supra note 10 at 50. 90 Green, supra note 28 at 53, 55; C. Bell, supra note 10 at 46, 49. 91 C. Bell, supra note 10 at 61.

Bridging Intellectual Property and Cultural Property Laws  363 92 93 94 95 96 97

Ibid. at 68. Kelly, supra note 23 at 273. “Art and Crafts,” supra note 1. C. Bell, supra note 10 at 66. “Art and Crafts,” supra note 1. United Nations Declaration on the Rights of Indigenous Peoples (New York: United Nations, 2007), http://www.un.org/esa/socdev/unpfii/documents /DRIPS_en.pdf. 98 See Truth and Reconciliation Commission of Canada, Calls to Action (Winnipeg: Truth and Reconciliation Commission of Canada, 2016) at Call to Action #42, http://www.trc.ca/websites/trcinstitution/File/2015/Findings /Calls_to_Action_English2.pdf. 99 Connolly v. Woolrich (1867), 17 R.J.R.Q. 75 (Que. Ct. Q.B.). 100 R. v. Van der Peet, [1996] 2 S.C.R. 672; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. 101 See Terri-Lynn (gid7ahl-Gudsllaay) Williams-Davidson, “Weaving Together our Future: The Interaction of Haida Laws to achieve respectful coexistence” (Paper delivered at a CLE BC conference, Indigenous Legal Orders and the Common Law in Vancouver, 16 November 2012); John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016) at 45. 102 Paterson, supra note 26 at 209. It is one of the main strategies considered in the literature on the topic of protecting traditional knowledge and traditional cultural expressions. See, for example, Robert G. Howell and Roch Ripley “The Interconnection of Intellectual Property and Cultural Property (Traditional Knowledge)” in Catherine Bell and Robert K Paterson, eds., Protection of First Nations Cultural Heritage: Laws, Policies and Reform (Vancouver: UBC Press, 2009) 223 at 224; Coombe, supra note 40 at 262–71. 103 For example, Article 12(1) of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (2010) states that, in the context of adopting national laws, states must consider “‘indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources.” 104 Karolina Kuprecht, Indigenous Peoples’ Cultural Property Claims: Repatriation and Beyond (Lucerne, Switzerland: Springer, 2013) at 165. 105 Ibid. at 168. 106 L. Bell, supra note 6 at 104–5. 107 Ibid. at 2–3, 10. 108 Ibid. at 22. 109 Ibid. at 86.

364  Vanessa Udy 110 C. Bell, supra note 10 at 80. 111 Ibid. at 81. 112 Ibid. at 82. 113 Ibid. 114 Leanne Simpson, “Anticolonial Strategies for the Recovery and Maintenance of Indigenous Knowledge” (2004) 28:3 American Indian Quarterly 373 at 380. Simpson similarly argues that when traditional knowledge is reduced to writing, its interpretation becomes locked “in a cognitive box delineated by the structure of a language that evolved to communicate the worldview of the colonizers.” 115 Examples of new institutions include clearing houses and public registries. For an excellent survey of such new institutions, see Paterson, supra note 26. 116 Lou-ann Neel and Dianne Biin, “By Design: The Protection of Intellectual and Creative Rights” (Paper delivered at the UBCIC Protection Knowledge-Traditional Resources Rights in the New Millennium Conference, February 2000) at 5. 117 Noble, supra note 25 at 479. 118 Ibid. at 481. 119 See Robert Rubinson, “The Polyphonic Courtroom: Expanding the Possibilities of Judicial Discourse” (1996) 101:1 Dickinson Law Review 3; Robert M. Cover, “The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation” (1981) 22 William and Mary Law Review 639.

Contributors

Ryan Beaton works as a lawyer at Juristes Power in Vancouver. He p ­ ractices law in the areas of Aboriginal law, constitutional law, and administrative law. He is currently pursuing a PhD in law at the University of Victoria. His research focuses on the evolving conceptions of Aboriginal title and Crown sovereignty in Canadian case law. He clerked for Chief Justice Beverley McLachlin at the Supreme Court of Canada in 2014–15, prior to which he clerked at the Court of Appeal for Ontario. Originally from Montreal, he studied mathematics at McGill University and philosophy at the University of Toronto, before completing his JD at Harvard Law School in 2013. John Borrows, BA, MA, JD, LLM (Toronto), PhD (Osgoode Hall Law School), LLD (Hons., Dalhousie University, York University, Simon Fraser University, Queen’s University, and the Law Society of Ontario), DHL (Toronto), FRSC, is the Canada Research Chair in Indigenous Law at the University of Victoria Law School in British Columbia. His publications include Recovering Canada: The Resurgence of Indigenous Law (Donald Smiley Award for the Best Book in Canadian Political Science, 2002); Canada’s Indigenous Constitution (Canadian Law and Society Best Book Award, 2011); Drawing Out Law: A Spirit’s Guide; Freedom and Indigenous Constitutionalism (Donald Smiley Award for the Best Book in Canadian Political Science, 2016); The Right Relationship (with Michael Coyle, ed.); Resurgence and Reconciliation (with Michael Asch, Jim Tully, eds.); Law’s Indigenous Ethics (Best Subsequent Book Award from Native American and Indigenous Studies Association, 2020, and W. Wes Pue Best Book Award from the Canadian Law and Society Association, 2020). In 2017 he won the Killam Prize in Social Sciences; in 2019, the Molson Prize from the Canada Council for the Arts; and in 2020, the Governor General’s Innovation Award. He was appointed as an Officer of the Order of Canada in

366 Contributors

2020. He is Anishinaabe/Ojibway and a member of the Chippewa of the Nawash First Nation in Ontario, Canada. Brian Calliou is Cree and a member of the Sucker Creek First Nation in north central Alberta, in Treaty 8 territory. He received his BA, LLB, and LLM from the University of Alberta. He practised law in Edmonton then Calgary for eight years before taking on a full-time position as the director of Indigenous Leadership training programs at the Banff Centre for Arts and Creativity. He has published on Indigenous issues such as treaties, economic development, leadership, governance, and management. He is currently a PhD student in law and society at the University of Victoria. Libby Edwards is an alumnus of the University of Victoria and is currently completing her Master of Arts degree in Adult Education and Community Development at the Ontario Institute for Studies in Education (OISE) at the University of Toronto. Robert Hamilton is an assistant professor at the University of Calgary’s Faculty of Law, where he lives with his partner and two children. He is a PhD candidate at the University of Victoria Faculty of Law and holds a BA (Hons.) in Philosophy from St. Thomas University, a JD from the University of New Brunswick Law School, and an LLM from Osgoode Hall Law School. He has published on a range of legal issues concerning Indigenous peoples and the state and the contemporary doctrine of Aboriginal rights. He has also worked closely with First Nations on treaty rights, title, and governance issues. Kevin Hindle, BA Hons Div. 1, MBA, CPA, PhD, has been a committed entrepreneurship researcher, teacher, consultant, and practitioner for more than thirty years. He is the founder and CEO of Mentor Entrepreneurship Group (MENTREG), a consultancy that applies frameworks and tools developed in the peer-reviewed research of a range of leading-edge scholars in the field of entrepreneurship. He was also the foundation designer of the Master of Entrepreneurship and Innovation Degree at Swinburne University of Technology in Melbourne, where he worked for eighteen years. He is the co-author of three textbooks and numerous monographs and articles on the teaching of entrepreneurship. Darcy Lindberg is an assistant professor with the University of Alberta’s Faculty of Law, where he teaches courses on constitutional law, Indigenous legal traditions, treaties, and Indigenous environmental legal

Contributors 367

orders. He is mixed-rooted Plains Cree, with his relations coming from Samson Cree Nation in Alberta and the Battleford-area in Saskatchewan. His research focuses on Plains Cree law and constitutionalism, and ecological legal orders. Brent Mainprize is a professor and 3M National Teaching Fellow at the University of Victoria’s Gustavson School of Business, where he teaches entrepreneurship, strategy, and Indigenous economic development. He has been invited into over forty-five Indigenous communities to codesign and co-lead the delivery of more than sixty in-community ­economic development programs, including the award-winning ­Indigenous Advancement of Cultural Entrepreneurs (I-ACE) program. Arthur Mercer, whose Nisga’a name is Simoogit Galga, is a hereditary Chief, past CEO of the Nisga’a Commercial Group, and past economic development coordinator for the Nisga’a Lisim’s Government. His broad experience over three decades includes building strategic economic development partnerships that increase business accessibility and capacity building for the Nisga’a Nation. He is currently the Director of Community Initiatives for the National Consortium for Indigenous Economic Development (NCIED), an initiative of the Peter B. Gustavson School of Business and the Faculty of Law at the University of Victoria, and runs his own company, Tseax Development Group Ltd., which provides strategic business and economic development advisory services. Joshua Ben David Nichols is an assistant professor in the Faculty of Law at the University of Alberta. His work has been published in several leading journals, including the University of Toronto Law Journal, Osgoode Hall Law Journal, UBC Law Review, Alberta Law Review, and the Journal of Historical Sociology. His latest book is entitled A Reconciliation without Recollection: An Investigation of the Foundations of Aboriginal Law (University of Toronto Press, 2019). He is a research fellow at the Wahkohtowin Law and Governance Lodge at the University of Alberta and a member of the Law Society of British Columbia. Miles Richardson is a prominent Indigenous leader with an extensive background in Indigenous and Canadian government relations. In 1984, he was the youngest person to be elected President of the Council of the Haida Nation, a position he held until 1996. In 2007, he was named an Officer of the Order of Canada. He currently serves as Chair of the National Consortium for Indigenous Economic Development (NCIED), an initiative of the Peter B. Gustavson School of Business and Faculty of Law

368 Contributors

at the University of Victoria. He also operates his own strategy and advisory firm and is on the board of directors for Canadians for a New Partnership, the advisory board for the Indigenous Leaders Initiative, and the steering committee for the BC Indigenous Clean Energy Initiative. Vanessa Udy holds a BCL/LLB from McGill University (2008) and a LLM from the University of Victoria (2018). She is a lawyer called to the Barreau du Québec (2009) and the British Columbia Law Society (2018). In her role as a solicitor, she works exclusively with Indigenous communities across Canada on corporate and commercial matters, as well as community trusts.

Index

Aboriginal and treaty rights: collective vs. individual, 162, 169, 171. See also Behn v. Moulton Contracting Ltd.; section 35(1), Constitution Act, 1982 Aboriginal rights: claimants, 8; claims, 12, 187, 191n26; commercial, 116–18, 120–3, 126, 134–5, 188n3; framework, 12, 139–41, 239, 242, 244, 267, 284n59; litigation, 119, 188n4 Aboriginal law (contemporary), 10, 20, 188 Ahousaht Indian Band and Nation v. Canada (AG): 2009 BCSC, 115–16, 120, 147n28, 148n35; 2013 BCCA, 12, 115; 2018 BCSC, 116–17; First Nation, 294 American Convention on Human Rights (ACHR), 308, 310, 329n119, 331n149 American Declaration of the Rights and Duties of Man (ADRDM), 274, 308–10, 328n118 Anaya, James (UN Special Rapporteur on the rights of Indigenous peoples), 274–5 Anishinaabe: law and legal principles, 190n12, 271–2

autonomy: de facto sovereignty, 27; distinction, as, 132, 147n27; as a driver, 81–2, 84, 108n16, 322; loss of, 19, 290; respecting governance, 66, 79, 86, 89, 188n3, 290, 323 band council: dependence, 89; elected system, 88; powers, 88; representative, as a, 160, 173, 178, 185, 225, 245; structure, 85; work, 88 Banff Centre for Indigenous Leadership, 237 Bankes, Nigel, 307 Beckman v. Little Salmon/Carmacks First Nation, 219n80; quoted, 129 Behn v. Moulton Contracting Ltd.: civil actions, 170–2; classification of rights, 162; collective nature of rights, 161, 163–4, 173, 249; consultation, 249, 281n28, 285; criminal actions, 173; quoted, 161–3, 170–2, 249 Bell, Catherine, 340, 348, 350–1, 355 Bentham, Jeremy, 133 best practices, 6; defining success, 34; development of, 274; and Indigenous knowledge, 34 Binnie, Justice Ian, 129, 161–2

370 Index Borrows, John, 201, 293, 300, 306, 315 British Columbia: consultation, 262; Declaration on the Rights of Indigenous Peoples Act, 319; economic development, 60, 78, 268, 270; historical treaties and, 87, 226; modern treaties and, 226–7, 229–30; Treaty Commission, 223–4; Treaty Process, 309–10. See also Ahousaht Indian Band and Nation v. Canada (AG); Behn v. Moulton Contracting Ltd.; Calder v. AG British Columbia; Campbell v. British Columbia (Forest and Range); Delgamuukw v. British Columbia; Haida Nation v. BC (Minister of Forests); Hul’qumi’num Treaty Group (HTG); Komoyue Heritage Society v. British Columbia (AG); Kwakwaka’wakw; Saanichton Marina Ltd. v. Claxton (WSÁNEĆ); Spookw v. Gitxsan Treaty Society; Tsilhqot’in v. British Columbia; Xeni Gwet’in v. British Columbia British Columbia Claims Task Force, 224, 227, 229 British Columbia First Nations Congress, 224 British Columbia Treaty Commission, 13, 223 business: community, 25, 34, 44, 51; governance, as a component of, 26, 34, 52–3; leaders, 3, 26, 31, 33–4, 54, 58, 60; perspectives, based, 54 Calder v. AG British Columbia, 80–1, 225, 227; quoted, 130, 287n113 Campbell v. British Columbia (Forest and Range), 175, 183–4; quoted, 176 Canadian Aboriginal law, 10 Canadian state law, 6, 9–10, 87, 188n2, 293

Chippewa of the Thames, 240, 271 colonial constitution, 128, 151, 280 colonialism: effects of, 23, event, as an, 200; exploitation, and, 4; Indian Act, and, 208, 211; reparative justice, and, 197; structural, as, 200, 246; systemic transformation, and, 199 co-management, 53, 84, 135, 147n28, 148n29, 154n82 commercial rights, 90, 118–22, 124, 133–6, 148n35 common law: Indigenous legal systems, and, 160, 250, 268, 293, 304, 340; juridical discretion and the, 142 consent: environmental stewardship, and, 82, 256, 260–1, 275–8, 280n1, 294; Indian Act, and, 87; treaties and, 131. See also free, prior, and informed consent (FPIC); UN Declaration on the Rights of Indigenous Peoples conservation, 122, 135, 166. See also R. v. Sparrow ; UN Declaration on the Rights of Indigenous Peoples Constitution Act, 1867, section 91(24). See section 91(24), Constitution Act, 1867 Constitution Act, 1982, section 35(1). See section 35(1), Constitution Act, 1982 constitutionalism, Indigenous, 137 consultation and accommodation: Supreme Court of Canada on, 120, 163, 239–40, 248, 254, 257, 260. See also Chippewa of the Thames; Haida Nation v. BC (Minister of Forests) consultation vs. consent, 236, 260–1 contingency theory, 25, 33, 233 Cook-Searson, Chief Tammy (Lac La Ronge First Nation), 30–3

Index 371 Cowichan Tribes v. Canada (AG), 181–3; quoted, 181 Cowichan Tribes, 181, 274 Dasiqox Tribal Park, 140–1, 297–8. See also parks, tribal decolonize, 23; decolonization, 200–1, 210 de facto self-government, 81, 82, 84, 143 de facto sovereignty, 27, 83, 90, 107, 141 Delgamuukw v. British Columbia, 273; quoted, 120, 129, 161, 183, 263, 268, 287n113 Department of Indian Affairs. See Indian Affairs, department of disease, effects of on Aboriginal peoples, 198 dispute resolution, 111n49, 143, 260, 271. See also impact benefit agreements (IBAs) domination, 21, 200, 202–3, 205, 206 dynamic rights approach, 133, 137 Duu Guusd, 230, 295–6, 325n35. See also parks, tribal economic: degradation, 21; justice, 3–5, 14, 19, 33, 291, 306, 349; opportunity drivers, 11; prosperity, 3, 12, 60, 101, 197, 233–4, 306 elders, Indigenous: claimants, as, 186; expert witnesses, 268–9; legal tradition, on, 338, 340, 347, 350, 354–5; modern negotiations, in, 269, 271, 300; entrepreneurship, 38–9, 41, 48, 54, 57, 62–3, 71–6 ethnocentrism, 4 evolutionism, 4 Expert Mechanism on the Rights of Indigenous Peoples, 321

exploitation, 4, 21, 108, 208, 280, 286, 329 extinguishment of rights. See rights, extinguishment of federalism, 154n83. See also treaty federalism fiduciary (obligations of Crown), 118, 136, 263, 285n89 Finch, Chief Justice Lance (BC), 257 First Nations Fiscal Management Act (FNFMA), 98 Fitzpatrick, Peter, 4 Fort Nelson First Nation (FNFN). See Behn v. Moulton Contracting Ltd. fourth world theory, 54–6 free, prior, and informed consent (FPIC): about, in UN Declaration on the Rights of Indigenous Peoples, 236, 260, 275; Canadian stance on, 260, 276; corporate policies relevant to, 276. See also consent funding (entrepreneurship), 95, 98, 100 generative rights, 137 Gladstone, R. v., 117–18, 120–2, 124, 135, 138, 148n30; quoted, 132 Global Entrepreneurship Monitor (GEM) model, 54, 57 “good faith” negotiation (Canadian law), 8, 229, 252. See also Delgamuukw v. British Columbia; UN Declaration on the Rights of Indigenous Peoples Grand Council of the Crees and Cree Regional Authority (GCCEI/CRA), 156–7 Grassy Narrows First Nation v. Ontario (Natural Resources), 83, 107n10 Guerin v. The Queen, 125, 129. See also Delgamuukw v. British Columbia

372 Index handout culture, 45 Haida Nation, 13, 22, 70, 223, 225, 230–3, 295–6 Haida Nation v. BC (Minister of Forests), 107n11, 163, 239, 255, 273; quoted, 7, 16n23, 256, 259 Harvard Project on American Indian (Native) Economic Development, the, 27, 53, 84, 96, 110n41, 143, 290 Henderson, James (Sákéj) Youngblood, 118, 137, 292 “honour of the Crown” principle, 7, 16n22, 109n31, 120, 172, 219n80, 240, 252, 156, 318. See also Haida Nation v. BC (Minister of Forests); Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) Hul’qumi’num Treaty Group (HTG), 274, 308–11, 314 human rights. See Inter-American Commission on Human Rights (IACHR); Inter-American Court of Human Rights; UN Declaration on the Rights of Indigenous Peoples human rights laws, international, 264–5, 290, 307–10, 322n3, 329n119 hunting laws, 21–2, 166–7 hunting rights, 164, 166–7, 184, 193n56, 296. See also Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage); R. v. Morris; R. v. Powley; Tsilhqot’in Nation v. British Columbia immunity, interjurisdictional, 83 impact benefit agreements (IBAs), 99–102, 111n49, 277 Indian Act (1876), 21–2, 87–8; barrier, as a, 58, 63, 85–6, 89–93, 98, 105, 197–8, 216nn45–6, 246;

non-Indigenous and Indigenous relations, 205–8, 211–12, 217n56. See band council: representative, as a Indian Affairs, department of, 85, 88, 89–90, 232 Indigenous norms: constitutional legitimacy, of, 323; political legitimacy, of, 290, 306 Indigenous Law Research Unit (ILRU), 287n114, 299 Indigenous legal: perspectives, 23, 267; systems, 6, 13, 159–60, 184, 189n6, 190n12, 356 Indigenous legal traditions: 324, 357; alternative to state law, as, 293–4; revitalization of, 23, 33, 299–301, 305–6, 322, 323n7; Supreme Court of Canada, recognition by the, 268 inequality, structural, 5 infringement: compensation, 263–4; justification, and, 116–23, 126, 133, 142, 148n30, 239, 312–13; minimize, 258–60; unilateral, 8, 83, 131. See also UN Declaration on the Rights of Indigenous Peoples Inter-American Commission on Human Rights (IACHR), 274, 308–9, 311–12, 314, 329n123 Inter-American Court of Human Rights, 312–15 International Council on Mining and Metals (ICMM), 276–7 International Labour Organization (ILO), 307–8, 313, 320, 329n123 international law: countering doctrine of discovery, 129–30; Indigenous rights, 275; norms, 143, 315. See also Hul’qumi’num Treaty Group (HTG); UN

Index 373 Declaration on the Rights of Indigenous Peoples Inuit Circumpolar Council, 321 James, Florence, 294 James Bay and Northern Quebec Agreement (1975), 264 Johnson, Sir William, 272 jurisdiction, Indigenous conception of, 81–4, 86–7. See also commercial rights. justice: economic, 3–6, 14, 19, 33, 291, 306, 322, 349; social, 22, 29–30; transitional, 197, 199–201, 208, 210–11 Kelly, Dara, 347, 348 Komoyue Heritage Society v. British Columbia (AG), 175, 177, 179, 182–5, 187 Kwakwaka’wakw: contention with the University of British Columbia, 336, 348–9 Kwanlin Dun First Nation (KDFN), 212–13, 219nn78–9 Lamer, Chief Justice Antonio, 118, 120–2, 126, 130–3, 135, 150n50, 152n66, 161, 187n113 Land Management Act, 90 land, surrender of. See surrender of land land claim, 53, 252, 270 land treaties. See treaties, Vancouver Island law, Aboriginal. See Aboriginal law law, international. See international law legal pluralism, 12, 13, 299 legal rights (Indigenous), 141, 314 legal traditions (Indigenous) 271, 293–4, 299–300, 322, 324nn17,

326; colonialism, and, 306; Kwakwaka’wakw, 337–8, 340–6, 349–57; Supreme Court, 268 logging (projects and industry), 101, 170, 185, 194–6. See also Behn v. Moulton Contracting Ltd.; Campbell v. British Columbia (Forest and Range); oil and gas (industry) leadership: definition, 24–5, 30–1, 105, 206; competencies, 27; governance, and, 20–1. See also Banff Centre for Indigenous Leadership Louis, Chief Clarence, 30–3 management: resource, 87, 92, 119–20, 125, 139, 298–9, 328n103; structures, 135, 141, 147n28, 148n29, 154n82, 238. See also First Nations Fiscal Management Act (FNFMA); Land Management Act Manitoba Metis Federation Inc. v. Canada, 107n11, 150n48, 283n57 Marshall, Chief Justice John, 127, 129, 138. See also R. v. Marshall McLachlin, Chief Justice Beverley, 161, 179, 183, 199 Mikisew Cree v. Canada (Minister of Canadian Heritage), 239, 250, quoted, 16n25, 239, 281n27, 283n50 Miller, R.J., 110n35, 110n41, 111n45, 111n53 Mining Association of Canada (MAC), 276–7 mining projects: agreements concerning, 70, 101, 269, 275; conflicts over, 191n26, 297. See also International Council of Metals and Mining (ICMM); Mining Association of Canada; Tsilhqot’in Nation v. British Columbia modernization theory, 4

374 Index moral invisibility, 203–5, 209, 211 multiplier effect, 49, 102, 111n53 nation-to-nation relationship: in international law, 143; policy, 13, 223–5, 230–2; process, 227–8 negotiated agreements, 6–8, 68, 94, 99 negotiation with industry, 101–2. See also treaty negotiation; “good faith” negotiation Nenqay Deni Accord, 298 nogad (Kwakwaka’wakw elders elders), 338, 354, 357 Nunatukavut Community Council Inc. v. Canada (AG), 317 oil and gas (industry), 101, 230, 240, 296. See also logging (projects and industry); Haida Nation v. BC (Minister of Forests) parks, tribal (as distinct from Canadian law), 294–5, 298–9 Paul, Chief Terrance (Membertou First Nation), 30–3 power dynamics: in historical land cession treaties, 87–8; imbalance in, 10, 22, 137, 154n86, 226. See also Indian Act private ownership, 20–1, 314 Prospectors and Developers Association of Canada, 277 provincial governments, 296; rights and colonialism, 159–60, 189n5 provincial laws of general application, 109n31, 166, 261, 296 Quebec: treaties and, 264 Quinn v. Bell Pole, 185, 187, 195 reconciliation: colonialism and, 136, 199–201, 211; as constitutional goal, 16n25, 116; of

constitutional orders, 7–8, 107n13; through honourable negotiation, 259–60, 298–9; nature of, 7, 119–20, 129, 229, 248; process of, 16n23, 132–3, 136, 148n30, 196–7. See also Truth and Reconciliation Commission of Canada remedies: in Indigenous law, 292; in international law, 274, 309–11, 315; and the responsibility of corporations, 257, 312 respectful interactions between legal orders, 353, 357 responsibilities, public sector vs. private sector, 100, 239, 242, 257–8, 279; Kwakwaka’wakw culture, in, 348–50, 352, 357. See also remedies: and the responsibility of corporations rights, collective vs. individual, 163, 165–6, 173, 249, 274 rights, extinguishment of, 81, 118, 129–30, 229, 253–4, 309 rights and responsibilities, 340, 356 Ross River Dena Council v. Canada, 318 Royal Proclamation (1763), 86–7, 224, 226 R. v. Horseman, 248 R. v. Marshall, 248; quoted, 165, 183, 187n4, 191n31 R. v. Morris, 192n33, 248 R. v. Pamajewon, 140, 189n6; quoted, 117 R. v. Powley, 252; quoted, 161, 191n30 R. v. Sparrow, 106n7, 239; quoted, 133, 136, 142, 191n28, 263, 282n37 R. v. Taylor and Williams, 248 R. v. Van der Peet: test, 117, 121, 123; quoted, 267, 284n59 Saanichton Marina Ltd. v. Claxton (WSÁNEĆ), 301, 304 section 35(1), Constitution Act, 1982: Aboriginal and treaty rights

Index 375 under, 158, 161–2, 164, 165; potential benefits, 7, 353; potential drawbacks, 8–9, 83 section 91(24), Constitution Act, 1867: “Indians and lands reserved for Indians,” 107n13, 214, 229 self-government: as autonomy, 79, 132, 188n3; business approach, 26, 30, 34, 234; implications for economic development, 81–6 self-government agreements (SGAs), 80, 100 settlers, 19–21, 23, 80, 130, 271 Seymour, William C., 181 Simon v. The Queen, 130; quoted, 283n51, 317 Simpson, Leanne, 294, 299, 306, 364n114 Sinixt Nation, 175, 183, 184 social and economic development, 3–4, 6, 14, 27–8, 81, 92, 290 social ignorance, 12, 197, 204 sovereignty’s alchemy, 81, 127, 152n59 Spookw v. Gitxsan Treaty Society, 187 St. Catharines Milling & Lumber Co. v. The Queen, 136 state paternalism, 45, 238, 279 Stavenhagen, Rodolfo (UN Special Rapporteur on the rights of Indigenous Peoples), 274 Supreme Court of Canada. See individual cases surrender of land, 87, 212, 218n77, 219n78 sustainable economic development, 45, 84, 101 terra nullius, doctrine of, 126, 345 territories, surrender of. See surrender of land territorial dispossession, 85, 87, 92 training (for leadership), 26, 33, 94

treaties: Crown assertions of sovereignty, 6–8, 15n19, 150n48, 151n59; renegotiating, 16n22, 224; underlying principles of, 152n66 (see also constitutionalism, Indigenous) Treaties, Vancouver Island, 301 Treaties, Douglas, 179–80, 183–5, 301, 303 Treaty 6, 207, 249 Treaty 8, 87, 101, 226, 249–50, 296 treaty disputes, forums for resolving, 105, 263–4, 309. See also under international law treaty federalism, 137, 152n59 treaty interpretation, 8, 88, 233, 247–8 treaty-making: Indigenous pre-contact history of, 8, 209; modern, 228, 234, 239, 248–9, 308–9; in British Columbia, 226 treaty negotiations, 7, 163, 224, 226, 272, 308, 310–11 Treaty of Fort Niagara, 224, 226 Treaty of Greenville (1795) Treaty of 1752, 283n51 treaty promises, breach: 21, 23 treaty relationships: Indigenous conceptions of, 106; inherent responsibilities of, 319 treaty right, commercial, 109n31. See also commercial rights tribal capitalism, 25, 34, 234 triple bottom line, 103–4 Trudeau, Prime Minister Pierre, 211 Trudeau government (modern), 225 Truth and Reconciliation Commission of Canada (TRC), 92, 196–201, 211, 231, 282n40, 353 Tsilhqot’in: law, 10, 268, 297, 326n57; nation, 9–10, 87, 140, 297–8 Tsilhqot’in v. British Columbia, 83, 273, 312; quoted, 161, 178, 254, 285n89

376 Index Tully, James, 128, 324n25 Two Row Wampum belts (Gus-WenTah), 272 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), 3, 5, 9, 260–1, 280n1, 307; Canada’s stance on, 10, 157, 236–7, 272–5, 310, 316–19 Universal Declaration of Human Rights, 264–5 value theory, 54, 56 venture, 49, 99–101, 102, 104 veto vs. consent, 142, 273, 277 violence, structural (of social contract), 200, 202

Western Canadian Shopping Centres Inc. v. Dutton, 174, 181–6, 188; quoted, 179 White Paper on Indian Policy (1969), 211–12 Williams, Chief Roger (Xeni Gwet’in), 176–7, 298 Wilmer, Frank, 319 World Council of Indigenous Peoples (WCIP), 320–1, 334n199 Xeni Gwet’in government, 140, 297–8 Yunesit’in Government, 140, 297 Yukon, 198, 213 Yukon Final and Self-Government Agreements, 212 Yukon First Nations, 12, 198, 212–14 Yukon Land Titles Registry, 212–13