Constitutional change is relentless. Today, states jockey with regional associations, international organizations, transnational networks and sub-state authorities to define the scope of legitimate political conduct and establish rival bases for political affiliation. Constitutional theorists must be resolute but they should not be rigid. Especially in such uncertain conditions, theories are best understood not as plans to be implemented but as hypotheses to be tested. Charles Sabel and David Dyzenhaus write separately but share this pragmatic orientation, in which doubt is indispensable and truth is the end of public inquiry. They also share a distinctive belief that constitutionalism serves a moral end: it is the project of cultivating citizens who conceive their political community in terms of the commitments revealed by its practices. Their position, which is well suited for contemporary challenges, warrants elaboration and examination. British Columbia offers an ideal constitutional laboratory for that test. During the 1970s and 1980s, doubts mounted about the legitimacy of the constitutional settlement imposed by the Crown in the westernmost province of Canada. Legal, political and constitutional decisions raised the possibility that aboriginal rights and title survived colonization and Confederation. Since 1990, their existence has been confirmed in a cascade of constitutional experiments. Those initiatives can be distilled into four procedures: litigation, negotiation, consultation and collaboration. Although they have delivered practical benefits to some indigenous peoples, these procedures have not transformed provincial politics into a moral endeavour. The constraints on constitutionalism in British Columbia are both conceptual and institutional. Despite marginal improvements, those constraints endure and constitutionalism remains for now the sporadic pursuit of a small elite. To conceive constitutionalism as a project is to set a sound but exacting standard. Although British Columbia falls short, its failure is informative: the theory is useful.

In July 1997 Selkirk First Nation Citizens or Selkirk First Nation Peoples in the community of Pelly Crossing, Yukon signed the Selkirk First Nation Final Land Claims Agreement (Modern Day Treaty) and the Selkirk First Nation Self-Government Agreement with the Government of Yukon and the Government of Canada. Prior to 1997 they were under the auspices of the Department of Indian and Northern Affairs (DIAND) and did not have the autonomy to create policy and law for land management. Rather, they were required to adhere to regulations that were mandated by the Yukon Wildlife Act and other institutions created by the Yukon or Federal Governments. The methodology employed in this study was aimed at providing an accurate assessment of change while at the same time ensuring that Selkirk First Nation perspectives remained uppermost. To achieve this, community and personal insights were gained through interviews, family group discussions and the observation of community activities. To ensure that these perspectives were positioned in an accurate historical and political context an examination of public, private, and government records were also undertaken. This research has provided the platform upon which I formed my conceptualizations that Selkirk First Nation Peoples are benefiting both culturally and traditionally. The significance of this research will provide alternatives for other First Nations who pursue land claims and who are building their hunting and fishing laws or Wildlife Acts upon cultural values and traditional pursuits that are distinct from those mandated federally, provincially, or territorially. It is also anticipated that First Nations who are in the process of negotiating Comprehensive Land Claims Agreements acknowledge that certainty regarding Aboriginal rights and title go above and beyond what is defined by the dominant Governments and the Courts.

In July 1997 Selkirk First Nation Citizens or Selkirk First Nation Peoples in the community of Pelly Crossing, Yukon signed the Selkirk First Nation Final Land Claims Agreement (Modern Day Treaty) and the Selkirk First Nation Self-Government Agreement with the Government of Yukon and the Government of Canada. Prior to 1997 they were under the auspices of the Department of Indian and Northern Affairs (DIAND) and did not have the autonomy to create policy and law for land management. Rather, they were required to adhere to regulations that were mandated by the Yukon Wildlife Act and other institutions created by the Yukon or Federal Governments. The methodology employed in this study was aimed at providing an accurate assessment of change while at the same time ensuring that Selkirk First Nation perspectives remained uppermost. To achieve this, community and personal insights were gained through interviews, family group discussions and the observation of community activities. To ensure that these perspectives were positioned in an accurate historical and political context an examination of public, private, and government records were also undertaken. This research has provided the platform upon which I formed my conceptualizations that Selkirk First Nation Peoples are benefiting both culturally and traditionally. The significance of this research will provide alternatives for other First Nations who pursue land claims and who are building their hunting and fishing laws or Wildlife Acts upon cultural values and traditional pursuits that are distinct from those mandated federally, provincially, or territorially. It is also anticipated that First Nations who are in the process of negotiating Comprehensive Land Claims Agreements acknowledge that certainty regarding Aboriginal rights and title go above and beyond what is defined by the dominant Governments and the Courts.

ABORIGINALITY, EXISTING ABORIGINAL RIGHTS AND STATE ACCOMMODATION IN CANADA: ABSTRACT The central focus of this dissertation is the relationship between aboriginality, aboriginal rights and state accommodation in Canada. The work considers how the existence of a plurality of conceptions of aboriginality impacts the capacity of aboriginal rights to protect and accommodate this collective identity. This dissertation takes the position that aboriginal rights, as they are currently constructed in Canada, cannot account for the existence of this definitional multiplicity, and so impose serious limits on the degree to which aboriginality is accommodated and protected by the state. This case is built by looking at Supreme Court cases that deal with Section 35(1) of the Constitution Act, 1982. The investigation contained herein examines the written legal submissions of the aboriginal and non-aboriginal participants in these cases, as well as the Court’s decisions, in an effort to trace the various articulations of aboriginality put forward by the parties. The dissertation demonstrates that, even though there is a multiplicity of conceptions of aboriginality – in other words, the aboriginal litigants, the provinces, the federal government and the Supreme Court justices advance different and often competing conceptions of aboriginality – aboriginal rights are constructed to protect and accommodate a single, particular vision of this collective identity. Moreover, this version of aboriginality does not coincide with the version of this collective identity advanced by the aboriginal litigants themselves. Consequently, the work in this dissertation argues that aboriginal rights fail to accommodate and protect aboriginal peoples’ collective identities and pose a substantial threat to these identities. / Thesis (Ph.D, Political Studies) -- Queen's University, 2008-07-09 23:23:43.659

Abstract This thesis explores the important role that archivists can and have played in the expansion of Aboriginal rights in Canada. It situates and explores the roles played by British Columbia Provincial Archivist Willard E. Ireland (1914-1979) and the Provincial Archives of British Columbia in two pivotal Aboriginal rights legal cases of the 1960s and 1970s in the larger context of the relationship between Aboriginal rights and archives from the late 1800s to today, arguing that the role of archivists and archives in the pursuit of Aboriginal rights is neither passive nor neutral, and as such, deserves greater awareness and study than it has received in the past.

Abstract This thesis explores the important role that archivists can and have played in the expansion of Aboriginal rights in Canada. It situates and explores the roles played by British Columbia Provincial Archivist Willard E. Ireland (1914-1979) and the Provincial Archives of British Columbia in two pivotal Aboriginal rights legal cases of the 1960s and 1970s in the larger context of the relationship between Aboriginal rights and archives from the late 1800s to today, arguing that the role of archivists and archives in the pursuit of Aboriginal rights is neither passive nor neutral, and as such, deserves greater awareness and study than it has received in the past.

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.

Constitutional change is relentless. Today, states jockey with regional associations, international organizations, transnational networks and sub-state authorities to define the scope of legitimate political conduct and establish rival bases for political affiliation. Constitutional theorists must be resolute but they should not be rigid. Especially in such uncertain conditions, theories are best understood not as plans to be implemented but as hypotheses to be tested. Charles Sabel and David Dyzenhaus write separately but share this pragmatic orientation, in which doubt is indispensable and truth is the end of public inquiry. They also share a distinctive belief that constitutionalism serves a moral end: it is the project of cultivating citizens who conceive their political community in terms of the commitments revealed by its practices. Their position, which is well suited for contemporary challenges, warrants elaboration and examination. British Columbia offers an ideal constitutional laboratory for that test. During the 1970s and 1980s, doubts mounted about the legitimacy of the constitutional settlement imposed by the Crown in the westernmost province of Canada. Legal, political and constitutional decisions raised the possibility that aboriginal rights and title survived colonization and Confederation. Since 1990, their existence has been confirmed in a cascade of constitutional experiments. Those initiatives can be distilled into four procedures: litigation, negotiation, consultation and collaboration. Although they have delivered practical benefits to some indigenous peoples, these procedures have not transformed provincial politics into a moral endeavour. The constraints on constitutionalism in British Columbia are both conceptual and institutional. Despite marginal improvements, those constraints endure and constitutionalism remains for now the sporadic pursuit of a small elite. To conceive constitutionalism as a project is to set a sound but exacting standard. Although British Columbia falls short, its failure is informative: the theory is useful.

In this dissertation, I explore how, in Canada, Indigenous people’s relationships with culturally-significant plant species are an expression of Aboriginal rights, and I ask how these rights can be affirmed and exercised using a form of intersocietal law within and between First Nations and state governments. I examine how my own and others’ ethnobotanical and ethnoecological research can help to decolonize the Crown legal systems that limit Indigenous peoples in regenerating their relationships with native plant species and the ecosystems within which they are situated. In order to explore how Indigenous people’s relationships with native plant species can be expressed in law, my dissertation is grounded in a case study, developed and carried out in collaboration with the T’Sou-ke Nation, members of which have lived on southern Vancouver Island since time immemorial as part of the Straits Salish language group. Using the T’Sou-ke case study as an example, I explain how this evidence of knowledge and use of plants helps to root contemporary First Nations’ rights throughout their territories, which is essential to establishing the basis of land and resource rights that have legal force to be claimed today.I indicate current challenges faced by T’Sou-ke Nation in exercising plant-associated rights throughout their territory and outline how the current legal test for proving Aboriginal rights is problematic. The T’Sou-ke have an abundance of rich evidence of their use of 100 native plant species and of Indigenous laws and governance associated with the same. I contend that the obvious and long-standing Indigenous management of these plant species and various ecosystems on southern Vancouver Island supports a very significant claim of legal rights and I believe that my research is broadly applicable to other First Nations in BC and beyond. The T’Sou-ke Nation, historically and today, are norm creating, generating and interpreting people as reflected in their distinct social organization adapted and adjusted by their members through many changing social and ecological variables over centuries. The re-examination of the values, rules, protocols, customs and practices associated with markers of Indigenous plant use throughout Straits Salish landscapes, specifically with the assistance of Indigenous knowledge holders, as well as ethnohistorical, ethnobotanical, and traditional ecological knowledge, re-frames how evidence of land use and occupancy is presented, and, ultimately, how we might all govern these resources together. For the T’Sou-ke, laws around plants are not limited to certain traditional practices, or to specific sites or places; law also rests in species and in the long-term relationships that people have with culturally important plant species. As such, the normative ordering of T’Sou-ke laws relating to their plant use and management must be judged on T’Sou-ke terms, not by Canadian legal terms. My hope is that this research contributes to the larger discussion of acknowledging Indigenous peoples’ distinct and culturally relative rights and principles with respect to native plants, while strengthening and growing the ties that bind all British Columbians together. / Graduate / 2023-09-07

Chief Justice Lamer has stated that the doctrine of Aboriginal rights exists and is recognized by section 35(1) of the Canadian constitution because of the “one simple fact” that Aboriginal peoples were already here, living in what became Canada when Europeans arrived. As a result, the purpose of Aboriginal rights is to reconcile the pre-existence of Aboriginal peoples with the Crown. Yet both the conception of reconciliation and the test Lamer C.J. developed to fulfil the purpose underlying s. 35(1) are fraught with numerous problems and contradictions. This thesis adapts the relational approach in anthropology to create a trans-systemic legal framework for Aboriginal rights that allows a more equitable reconciliation than that advanced by Lamer C.J. and avoids the pitfalls of the courts’ current approach. I begin by exploring how the Court’s conceptions of society and culture, in particular, are the source of the problems in their approach to Aboriginal rights. Focusing in on the Court’s use of “culture,” I then discuss the intellectual foundations of the notion and go through the three phases of the test for Aboriginal rights showing how those foundations have influenced it and the dilemmas and barriers “culture” creates for both the courts and Aboriginal claimants. One of my major, continuing criticisms of the Court’s approach is that by focusing on culture, the lives and perspectives of Aboriginal claimants and their ancestors are marginalized, and so my proposed trans-systemic framework is based on “re-enlivening” Aboriginal rights. By focusing on life, rather than culture, I argue that this more ably meets the goals and purposes of s. 35(1). This refocusing also results in a different relationship between Aboriginal peoples, the Court and the Crown, and I conclude this thesis with a discussion of how the convergence of Aboriginal legal systems and the common law in Canada may occur.