The story of how and why the Canadian government negotiated Treaty 8 with First Nations living in north-western Canada, and its attitude toward the people whom it casually left out of treaty, provide an excellent example of how the Canadian government approached treaty negotiations in the late nineteenth and early twentieth centuries. Treaty 8 is both typical of the other numbered treaties negotiated with First Nations in the late nineteenth century in western Canada as well as different, in that it was the first of the "northern" numbered treaties negotiated with First Nations.<p> This thesis looks at Treaty 8 in both ways: how it illustrates a common approach to treaty making on the part of the Canadian government, and how it differs from other treaties and other treaty negotiation processes. The thesis also tells the story of the people left out of Treaty 8 negotiations in northern Alberta and north-western Saskatchewan, as well as their struggles to obtain justice for this governmental oversight.<p> This thesis looks at a number of issues related to Treaty 8 which earlier historians have either not focused on or overlooked. The first is that the territory covered by Treaty 8 is greater than the area into which treaty commissioners were sent in 1899 and 1900. The second related point is that the government policy of the time that treaties should be negotiated at as little expense and cost to the government as possible meant that people were left out of treaty negotiations.

On April 1, 1999, Akimiski Island, Northwest Territories, Canada, became part of the newly created Inuit-dominated territory of Nunavut, even though the Inuit never asserted Aboriginal title to this island. This is why the Omushkegowuk Cree of the western James Bay region of Ontario, Canada, assert Aboriginal title over this island. Essentially, the Government of Canada has reversed the onus of responsibility for proving Aboriginal title from the Inuit to the Cree. In this paper, we examined whether the Omushkegowuk Cree fulfill all the criteria of the common law test of Aboriginal title with respect to Akimiski Island, utilizing all available printed and online material. All criteria of the common law test of Aboriginal title were met; however, the written record only alludes to the Cree using Akimiski Island at the time of first contact and prior, Cree oral history was consulted to illuminate upon this matter. I documented and employed Cree oral history to establish that Cree traditional use and occupancy of Akimiski Island was “sufficient to be an established fact at the time of assertion of sovereignty by European nations” (INAC, 1993:5; INAC, 2008); thereby, fulfilling criterion 2 of the test for Aboriginal title. As the Cree have now met all criteria of the common law test for proof of Aboriginal title in Canada, with respect to Akimiski Island, a formal land claim should be considered by the Cree.

The story of how and why the Canadian government negotiated Treaty 8 with First Nations living in north-western Canada, and its attitude toward the people whom it casually left out of treaty, provide an excellent example of how the Canadian government approached treaty negotiations in the late nineteenth and early twentieth centuries. Treaty 8 is both typical of the other numbered treaties negotiated with First Nations in the late nineteenth century in western Canada as well as different, in that it was the first of the "northern" numbered treaties negotiated with First Nations.<p> This thesis looks at Treaty 8 in both ways: how it illustrates a common approach to treaty making on the part of the Canadian government, and how it differs from other treaties and other treaty negotiation processes. The thesis also tells the story of the people left out of Treaty 8 negotiations in northern Alberta and north-western Saskatchewan, as well as their struggles to obtain justice for this governmental oversight.<p> This thesis looks at a number of issues related to Treaty 8 which earlier historians have either not focused on or overlooked. The first is that the territory covered by Treaty 8 is greater than the area into which treaty commissioners were sent in 1899 and 1900. The second related point is that the government policy of the time that treaties should be negotiated at as little expense and cost to the government as possible meant that people were left out of treaty negotiations.

On April 1, 1999, Akimiski Island, Northwest Territories, Canada, became part of the newly created Inuit-dominated territory of Nunavut, even though the Inuit never asserted Aboriginal title to this island. This is why the Omushkegowuk Cree of the western James Bay region of Ontario, Canada, assert Aboriginal title over this island. Essentially, the Government of Canada has reversed the onus of responsibility for proving Aboriginal title from the Inuit to the Cree. In this paper, we examined whether the Omushkegowuk Cree fulfill all the criteria of the common law test of Aboriginal title with respect to Akimiski Island, utilizing all available printed and online material. All criteria of the common law test of Aboriginal title were met; however, the written record only alludes to the Cree using Akimiski Island at the time of first contact and prior, Cree oral history was consulted to illuminate upon this matter. I documented and employed Cree oral history to establish that Cree traditional use and occupancy of Akimiski Island was “sufficient to be an established fact at the time of assertion of sovereignty by European nations” (INAC, 1993:5; INAC, 2008); thereby, fulfilling criterion 2 of the test for Aboriginal title. As the Cree have now met all criteria of the common law test for proof of Aboriginal title in Canada, with respect to Akimiski Island, a formal land claim should be considered by the Cree.

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The existing rights paradigm in Aboriginal law accepts Crown sovereignty claims grounded in ethnocentric conceptions of terra nullius and discovery, and views Aboriginal rights as arising out of prior occupation. The Supreme Court of Canada has shaken this paradigm by characterizing Crown sovereignty as merely de facto until reconciled with Aboriginal sovereignty and legitimated by a treaty, by developing the duty to consult, and by characterizing reconciliation as a process that is part of a generative constitutional order. The moves the Court toward a new paradigm rooted in the principle of the equality of peoples in which treaties provide a framework for sharing sovereignty. As part of the Canadian federation, Aboriginal sovereignty can strengthen Canadas territorial integrity and contribute to Canadas economic development.<p> In the past, courts allowed the act of state doctrine to shield Crown assertions of sovereignty from scrutiny. This doctrine protects Canadas territorial integrity, but does not shield the Crowns actions from legal and constitutional scrutiny. The fundamental constitutional principle of rule of law and the de facto doctrine will protect interests that relied on assumptions of Crown sovereignty that lacked constitutional legitimacy.<p> The transformation in the fundamental principles of Aboriginal law has parallels to Thomas Kuhns description of a paradigm shift in the natural sciences. The rights paradigm is in a crisis with moral and practical dimensions. It is incommensurable with the equality paradigm, and therefore the choice of paradigms will depend on normative criteria. Fundamental principles of the Canadian constitution, international standards of human rights and the perspectives of growing numbers of practitioners in the field that are of Aboriginal ancestry are all forces that will complete the shift to the equality paradigm.<p> An equality paradigm will result in the abandonment of some Aboriginal law doctrines, and the modification of others. Aboriginal title is inconsistent with an equality paradigm because it assumes the legitimacy of the Crowns claims to sovereignty, gives the Crown a superior title, and limits Aboriginal nations to a burden of only limited and subordinate rights. The fiduciary relationship rooted in the honour of the Crown will grow into a non-hierarchical relationship with reciprocal obligations.<p> Decisions of courts can play a supporting role, but only negotiations and treaties can build a genuine partnership, effective and equitable sharing of sovereignty and ultimately reconciliation between Aboriginal and non-Aboriginal peoples in Canada.

The existing rights paradigm in Aboriginal law accepts Crown sovereignty claims grounded in ethnocentric conceptions of terra nullius and discovery, and views Aboriginal rights as arising out of prior occupation. The Supreme Court of Canada has shaken this paradigm by characterizing Crown sovereignty as merely de facto until reconciled with Aboriginal sovereignty and legitimated by a treaty, by developing the duty to consult, and by characterizing reconciliation as a process that is part of a generative constitutional order. The moves the Court toward a new paradigm rooted in the principle of the equality of peoples in which treaties provide a framework for sharing sovereignty. As part of the Canadian federation, Aboriginal sovereignty can strengthen Canadas territorial integrity and contribute to Canadas economic development.<p> In the past, courts allowed the act of state doctrine to shield Crown assertions of sovereignty from scrutiny. This doctrine protects Canadas territorial integrity, but does not shield the Crowns actions from legal and constitutional scrutiny. The fundamental constitutional principle of rule of law and the de facto doctrine will protect interests that relied on assumptions of Crown sovereignty that lacked constitutional legitimacy.<p> The transformation in the fundamental principles of Aboriginal law has parallels to Thomas Kuhns description of a paradigm shift in the natural sciences. The rights paradigm is in a crisis with moral and practical dimensions. It is incommensurable with the equality paradigm, and therefore the choice of paradigms will depend on normative criteria. Fundamental principles of the Canadian constitution, international standards of human rights and the perspectives of growing numbers of practitioners in the field that are of Aboriginal ancestry are all forces that will complete the shift to the equality paradigm.<p> An equality paradigm will result in the abandonment of some Aboriginal law doctrines, and the modification of others. Aboriginal title is inconsistent with an equality paradigm because it assumes the legitimacy of the Crowns claims to sovereignty, gives the Crown a superior title, and limits Aboriginal nations to a burden of only limited and subordinate rights. The fiduciary relationship rooted in the honour of the Crown will grow into a non-hierarchical relationship with reciprocal obligations.<p> Decisions of courts can play a supporting role, but only negotiations and treaties can build a genuine partnership, effective and equitable sharing of sovereignty and ultimately reconciliation between Aboriginal and non-Aboriginal peoples in Canada.

This dissertation identifies institutional positivism and historically grounded pluralism as interpretive trends in the Canadian case law on Indigenous-state relations, and explores tensions between these trends. These are tensions between practices of judicial interpretation, not between theories of interpretation or legal concepts. They are practices developed case- by-case, with interpretive trends emerging over time through series of cases addressing similar issues in related contexts. Institutional positivist approaches insist that judicial recognition of Indigenous legal orders and accommodation of Indigenous interests must take place within established constitutional forms founded on state sovereignty. Historically grounded pluralist approaches show greater willingness to balance principles of state sovereignty against principles of popular sovereignty and of Indigenous priority in Canadian territory. While the two approaches overlap significantly, their differences sometimes lead to contrasting legal conclusions on key issues of, e.g., treaty interpretation, the relationship between Indigenous legal orders and the state legal system, and the jurisdictional dimension of Aboriginal title. This dissertation examines these positivist-pluralist tensions in the context of the current period of ideological transition and rapidly evolving imaginaries of Indigenous-state relations. Chapters 1 and 2 explore the case law to highlight concrete ways in which this ideological transition finds doctrinal expression in both positivist and pluralist modes. Chapters 3 and 4 offer broader reflections on philosophical debates relating to legal positivism and the role of popular sovereignty in constitutional interpretation by Canadian courts. The final chapter then considers the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law, with a focus on implementing legislation recently adopted by British Columbia and on two recent judgments that split the Supreme Court of Canada on the proper role of the Canadian judiciary in coordinating Canadian state law with non-state legal orders (Indigenous in one case and international in the other). This concluding chapter explains how the ongoing interplay of positivist and pluralist concerns will inevitably shape the reception of UNDRIP in Canadian law and the ongoing elaboration of Canadian Aboriginal law more generally. / Graduate / 2022-08-26

Legal decisions on Aboriginal rights and title and treaty negotiations with First Nations in British Columbia (BC) are inextricably linked. While much has been written on the impacts of a small number of such legal decisions, there has been very little research that critically examines how legal decisions on Aboriginal rights and title, in general, influence the way the parties to the BC treaty process conduct treaty negotiations. In-depth interviews with ten First Nations, provincial, and federal chief negotiators/advisers, together with British Columbia Treaty Commission (BCTC) commissioners and senior-level program staff, suggest that legal decisions on Aboriginal rights and title influence the conduct of treaty negotiations in an indirect and serpentine manner. Further to this, the results suggest that legal decisions on Aboriginal rights and title may act to simultaneously facilitate and constrain the conduct of negotiations.

Legal decisions on Aboriginal rights and title and treaty negotiations with First Nations in British Columbia (BC) are inextricably linked. While much has been written on the impacts of a small number of such legal decisions, there has been very little research that critically examines how legal decisions on Aboriginal rights and title, in general, influence the way the parties to the BC treaty process conduct treaty negotiations. In-depth interviews with ten First Nations, provincial, and federal chief negotiators/advisers, together with British Columbia Treaty Commission (BCTC) commissioners and senior-level program staff, suggest that legal decisions on Aboriginal rights and title influence the conduct of treaty negotiations in an indirect and serpentine manner. Further to this, the results suggest that legal decisions on Aboriginal rights and title may act to simultaneously facilitate and constrain the conduct of negotiations.