The central objective of this study is to examine the politics and policies regarding the development and operation of Aboriginal controlled post-secondary institutions, especially First Nations initiated post-secondary institutions in Western Canada. Toward that end, this study focuses on the politics and policies regarding the development and operation of two such institutions -- the Nicola Valley Institute of Technology in British Columbia and the Saskatchewan Indian Federated College in Saskatchewan. Among the key research questions addressed by this study are the following: <ul> <li>Why have Aboriginal controlled post-secondary institutions been established? <li>What have been the general positions of the Aboriginal, federal and provincial governments on Aboriginal control of post-secondary education in Canada, and what are the key factors that account for their respective positions? <li>What is the value of Aboriginal post-secondary institutions for their respective Aboriginal and non-Aboriginal communities? <li>What is likely to happen to the existing Aboriginal post-secondary institutions over time and are any others likely to be established in the future? </ul> The key findings of this study on each of those questions can be summarized as follows. First, in terms of the factors that contributed to the creation of the Aboriginal post-secondary institutions the thesis reveals that four factors were particularly significant: (a) problems associated with the existing educational systems for Aboriginal students and educators (b) the international Aboriginal rights and self-governance movement; (c) the domestic Aboriginal rights and self-government movement; and (d) the interests of the Aboriginal, federal and provincial governments. Second, in terms of the positions of the various orders of government on the creation of such institutions this study reveals the following: (a) the general position of the Aboriginal governments has been, and continues to be, that they have both inherent and treaty rights to create and operate such institutions; (b) the general position of successive federal governments has changed from one of indifference to one of cautious support; and (c) the general position of provincial governments has varied not only from province to province but to some extent even among governments within the same province, as some provincial governments have been more proactive than others on this matter. Third, in terms of the value of Aboriginal controlled post-secondary institutions, this study reveals that they provide valuable educational opportunities for Aboriginal learners by exposing them to Aboriginal instructors, pedagogy, course content, cases, and support from elders. Fourth, in terms of the future of such institutions, the study suggests that they will continue to exist and new ones are likely to emerge because they provide an important focal point not only for the development of individuals of Aboriginal descent, but also for the development of individuals who can make a contribution to the political, economic and social development of Aboriginal communities.

Treaty 7 First Nations, who have occupied the South Saskatchewan River Basin since time immemorial, have water rights protected by s.35 of the Constitution, Treaty 7, and the Natural Resources Transfer Agreement, 1930. This thesis suggests that Alberta has devised a legal regime that circumvents the treaty relationship between the Crown and Treaty 7 First Nations. Section 52 of the Constitution and the principles of constitutionalism and the rule of law require that Crown legislation and action must be consistent with the Constitution. Because Aboriginal and treaty rights are protected under s.35(1) of the Constitution, Albertas consultation guidelines must address the protection of existing Aboriginal and treaty rights. This thesis examines whether the treaty or any subsequent Crown legislation or Crown action has extinguished the Aboriginal and treaty rights of Treaty 7 First Nations and draws the conclusion that the Aboriginal rights of Treaty 7 First Nations not only continue to exist, but are afforded additional protection by Treaty 7 and the Natural Resources Transfer Agreement. This leads to the conclusion that Albertas consultation policy fails to recognize and affirm Aboriginal and treaty rights in their entirety as they currently exist. To the extent that Albertas Aboriginal consultation policies and regulations are inconsistent with s.35(1) they are null and void.

Aboriginal rights are rooted in the historical relationship between the Indigenous peoples of Canada and the Crown and attempt to reconcile the prior occupation of lands by the Aboriginal peoples with claims of Crown Sovereignty. Treaty rights, on the other hand, owe their existence to a series of consensual agreements between the signatories and represent an ongoing relationship between the parties. Treaties represent an integral part of the early Indigenous-European relationship, initially offering peace and friendship and later a vehicle through which the Europeans could acquire lands from the Aboriginal peoples for settlement. In the seminal decision R. v. Sparrow, the Supreme Court of Canada for the first time attempted to address the scope and content of these constitutionally protected Aboriginal rights. The court concluded that Aboriginal rights existed at common law and that these common law rights, whatever they may be, received constitutional protection by virtue of s. 35(1) of the Constitution Act, 1982. Thus, any legislative enactment designed to infringe on these rights must meet constitutional standards for justification. Despite strict limitations on infringement, in the period following Sparrow, the Court has watered down the effects of this decision by diluting the legislative intent portion of the test to such a degree that it risks becoming a non-factor in the justification process. In this paper, I contend that the use of the Sparrow test, particularly as that test has been interpreted by the Court in the period following Sparrow is flawed, and to use this test as a tool for determining when constitutionally protected Aboriginal treaty rights might be infringed multiplies this flaw to a critical point. / October 2004

Treaty 7 First Nations, who have occupied the South Saskatchewan River Basin since time immemorial, have water rights protected by s.35 of the Constitution, Treaty 7, and the Natural Resources Transfer Agreement, 1930. This thesis suggests that Alberta has devised a legal regime that circumvents the treaty relationship between the Crown and Treaty 7 First Nations. Section 52 of the Constitution and the principles of constitutionalism and the rule of law require that Crown legislation and action must be consistent with the Constitution. Because Aboriginal and treaty rights are protected under s.35(1) of the Constitution, Albertas consultation guidelines must address the protection of existing Aboriginal and treaty rights. This thesis examines whether the treaty or any subsequent Crown legislation or Crown action has extinguished the Aboriginal and treaty rights of Treaty 7 First Nations and draws the conclusion that the Aboriginal rights of Treaty 7 First Nations not only continue to exist, but are afforded additional protection by Treaty 7 and the Natural Resources Transfer Agreement. This leads to the conclusion that Albertas consultation policy fails to recognize and affirm Aboriginal and treaty rights in their entirety as they currently exist. To the extent that Albertas Aboriginal consultation policies and regulations are inconsistent with s.35(1) they are null and void.

The central objective of this study is to examine the politics and policies regarding the development and operation of Aboriginal controlled post-secondary institutions, especially First Nations initiated post-secondary institutions in Western Canada. Toward that end, this study focuses on the politics and policies regarding the development and operation of two such institutions -- the Nicola Valley Institute of Technology in British Columbia and the Saskatchewan Indian Federated College in Saskatchewan. Among the key research questions addressed by this study are the following: <ul> <li>Why have Aboriginal controlled post-secondary institutions been established? <li>What have been the general positions of the Aboriginal, federal and provincial governments on Aboriginal control of post-secondary education in Canada, and what are the key factors that account for their respective positions? <li>What is the value of Aboriginal post-secondary institutions for their respective Aboriginal and non-Aboriginal communities? <li>What is likely to happen to the existing Aboriginal post-secondary institutions over time and are any others likely to be established in the future? </ul> The key findings of this study on each of those questions can be summarized as follows. First, in terms of the factors that contributed to the creation of the Aboriginal post-secondary institutions the thesis reveals that four factors were particularly significant: (a) problems associated with the existing educational systems for Aboriginal students and educators (b) the international Aboriginal rights and self-governance movement; (c) the domestic Aboriginal rights and self-government movement; and (d) the interests of the Aboriginal, federal and provincial governments. Second, in terms of the positions of the various orders of government on the creation of such institutions this study reveals the following: (a) the general position of the Aboriginal governments has been, and continues to be, that they have both inherent and treaty rights to create and operate such institutions; (b) the general position of successive federal governments has changed from one of indifference to one of cautious support; and (c) the general position of provincial governments has varied not only from province to province but to some extent even among governments within the same province, as some provincial governments have been more proactive than others on this matter. Third, in terms of the value of Aboriginal controlled post-secondary institutions, this study reveals that they provide valuable educational opportunities for Aboriginal learners by exposing them to Aboriginal instructors, pedagogy, course content, cases, and support from elders. Fourth, in terms of the future of such institutions, the study suggests that they will continue to exist and new ones are likely to emerge because they provide an important focal point not only for the development of individuals of Aboriginal descent, but also for the development of individuals who can make a contribution to the political, economic and social development of Aboriginal communities.

Aboriginal rights are rooted in the historical relationship between the Indigenous peoples of Canada and the Crown and attempt to reconcile the prior occupation of lands by the Aboriginal peoples with claims of Crown Sovereignty. Treaty rights, on the other hand, owe their existence to a series of consensual agreements between the signatories and represent an ongoing relationship between the parties. Treaties represent an integral part of the early Indigenous-European relationship, initially offering peace and friendship and later a vehicle through which the Europeans could acquire lands from the Aboriginal peoples for settlement. In the seminal decision R. v. Sparrow, the Supreme Court of Canada for the first time attempted to address the scope and content of these constitutionally protected Aboriginal rights. The court concluded that Aboriginal rights existed at common law and that these common law rights, whatever they may be, received constitutional protection by virtue of s. 35(1) of the Constitution Act, 1982. Thus, any legislative enactment designed to infringe on these rights must meet constitutional standards for justification. Despite strict limitations on infringement, in the period following Sparrow, the Court has watered down the effects of this decision by diluting the legislative intent portion of the test to such a degree that it risks becoming a non-factor in the justification process. In this paper, I contend that the use of the Sparrow test, particularly as that test has been interpreted by the Court in the period following Sparrow is flawed, and to use this test as a tool for determining when constitutionally protected Aboriginal treaty rights might be infringed multiplies this flaw to a critical point.

Aboriginal rights are rooted in the historical relationship between the Indigenous peoples of Canada and the Crown and attempt to reconcile the prior occupation of lands by the Aboriginal peoples with claims of Crown Sovereignty. Treaty rights, on the other hand, owe their existence to a series of consensual agreements between the signatories and represent an ongoing relationship between the parties. Treaties represent an integral part of the early Indigenous-European relationship, initially offering peace and friendship and later a vehicle through which the Europeans could acquire lands from the Aboriginal peoples for settlement. In the seminal decision R. v. Sparrow, the Supreme Court of Canada for the first time attempted to address the scope and content of these constitutionally protected Aboriginal rights. The court concluded that Aboriginal rights existed at common law and that these common law rights, whatever they may be, received constitutional protection by virtue of s. 35(1) of the Constitution Act, 1982. Thus, any legislative enactment designed to infringe on these rights must meet constitutional standards for justification. Despite strict limitations on infringement, in the period following Sparrow, the Court has watered down the effects of this decision by diluting the legislative intent portion of the test to such a degree that it risks becoming a non-factor in the justification process. In this paper, I contend that the use of the Sparrow test, particularly as that test has been interpreted by the Court in the period following Sparrow is flawed, and to use this test as a tool for determining when constitutionally protected Aboriginal treaty rights might be infringed multiplies this flaw to a critical point.

Are Aboriginal rights defensible within the framework of liberalism? Liberalism's commitment to individual equality seems to preclude Aboriginal rights insofar as these rights are exercisable by only a sub-set of the Canadian population and not by all Canadians equally. Instead of asking how Aboriginal rights can be justified within the liberal state, we need to question the legitimacy of the state's assertion of sovereignty over Aboriginal peoples and territories. Of the four potentially applicable modes of acquiring sovereignty - discovery, conquest, cession and prescription - only treaties have the potential to provide a liberally-compelling basis for the legitimacy of Crown sovereignty. But historical treaties did not purport to transfer sovereignty. As such, Canadian sovereignty suffers from a normative lacuna. Aboriginal rights, as set out in mutually consensual treaties addressing the sharing of sovereignty, have the potential to fill this lacuna and thereby to ground the legitimacy of Crown sovereignty.

Are Aboriginal rights defensible within the framework of liberalism? Liberalism's commitment to individual equality seems to preclude Aboriginal rights insofar as these rights are exercisable by only a sub-set of the Canadian population and not by all Canadians equally. Instead of asking how Aboriginal rights can be justified within the liberal state, we need to question the legitimacy of the state's assertion of sovereignty over Aboriginal peoples and territories. Of the four potentially applicable modes of acquiring sovereignty - discovery, conquest, cession and prescription - only treaties have the potential to provide a liberally-compelling basis for the legitimacy of Crown sovereignty. But historical treaties did not purport to transfer sovereignty. As such, Canadian sovereignty suffers from a normative lacuna. Aboriginal rights, as set out in mutually consensual treaties addressing the sharing of sovereignty, have the potential to fill this lacuna and thereby to ground the legitimacy of Crown sovereignty.

Aboriginal urbanization has increased dramatically in Canada over the last half century. Aboriginal rights may be an important factor in shaping Aboriginal peoples’ experiences of urbanization, as they are largely restricted to those living on reserves. Through their impacts on social determinants of health, these differences in spatial access to Aboriginal rights may have implications for the health of Aboriginal peoples living in urban areas. Using mixed quantitative (statistical analysis of the Aboriginal Peoples Survey) and qualitative (in-depth interviews with Aboriginal women and men in Toronto) methods, this thesis explores relationships between Aboriginal urbanization and Aboriginal rights, focusing on how they may differentially impact the health of Aboriginal women and men living in urban areas. Findings suggest that the perceived lack of respect for Aboriginal rights in urban areas is negatively related to health, and that Aboriginal women and men may experience these impacts differently.