Resettlement is one of three durable solutions, which the United Nations High Commissioner for Refugees (UNHCR) uses to achieve refugee rotection. Refugees are assumed to locally integrate, voluntarily repatriate or resettle. Too many of the world's refugees, however, are left to linger in non-durable conditions in countries of first asylum that are often only minimally safer than the countries they have fled. Where neither local integration nor repatriation is possible, resettlement is the only option. Resettlement requires a third country to be willing to accept refugees into its territory. While signatory states to the 1951 Convention relating to the Status of Refugees (1951 Convention) are obliged not to refoule asylum seekers at their borders, they have not committed to accept refugees for resettlement. By geographic distance, presumptions of safety, and a lack of legal obligations, those refugees who fail to make it to the frontiers of safe states are simply not seen. These refugees remain so far removed in a vague, far-off realm that they are rendered invisible. Their invisibility is reflected in the 1951 Convention's silence on obligations to them, the dearth of academic examination of resettlement, and media and government attention only in the celebratory act of making a small number of such refugees visible and legal, through the act of bringing them within a protective state's borders. Despite their invisibility, the protection needs of those refugees left outside the borders of safe states remains. The goals of this thesis are therefore to create visibility and increase resettlement. Resettlement is examined from its theoretical motivations, historical origins, current manipulations, and future possibilities - both generally and through an examination of the Canadian scheme. The thesis closes with recommendations for resettlement reform. They are targeted at UNHCR, the international community, national governments, and Canada in particular. For resettlement to offer a fair mode of protection a comprehensive and global model of resettlement must be designed and, ultimately, implemented. / Law, Peter A. Allard School of / Graduate

This study analyzes variables in the child protection apprehensions and judicial dispositions within the British Columbia child welfare system. The study was based on a 10% sample of children apprehended into care of the B.C. Superintendent of Family and Child Service in 1989. It includes the following specific objectives: 1) To review reasons children were being apprehended into care and develop a socio-economic and demographic profile of these children and their families. 2) To determine percentages of congruence between social workers' recommendations to the court and judicial dispositions at the first two stages of child protection court proceedings. 3) To identify factors which impact case outcomes and account for discrepancies between social workers' recommendations and judicial dispositions. 4. To explore the policy and practice implications of the research findings. The profile of the apprehended children illustrated that a majority came into care for reasons characteristic of neglect by omission rather than abuse by commission. Reasons for admission to care appeared to be related to the age and sex of the child, as well as family constellation. In analyzing the relationships between the reasons for the child's apprehension in comparison to the parents' social, economic and educational status, it was demonstrated that children were predominantly apprehended from households headed by parents with limited education, low income and/or semi-skilled employment. Single female parents, parents on income assistance, aboriginal families, younger families, living in multiple dwellings, were statistically over-represented when compared to the general population. The majority of court hearings proceeded within the time-frames set out in B.C. child protection legislation. The social workers' recommendations to the court were statistically associated with the judicial dispositions at the initial presentation to the court, and only slightly less so at the protection hearing. Whether the parents attended court and had legal counsel played a significant role in influencing the court's disposition, particularly at the protection hearing. Judicial support for the social workers' recommendations varied depending on the order sought, the highest percentage of agreement being when social workers recommended the child be in parental care, and the lowest when recommending the child become a permanent ward. The thesis draws on these research findings, concluding with research and policy recommendations to facilitate child protection practice in British Columbia. / Arts, Faculty of / Social Work, School of / Graduate

Between 1969 and 1985, native Indians in British Columbia have used the courts in a significant number of cases to pursue goals which can be considered particularly Indian in that they have arisen as a result of the Indians' position as one of the indigenous peoples of Canada. Three general questions with respect to the use of the courts are addressed. First, what goals have native Indians pursued in the courts, and how are these related to the objectives which native Indians are pursuing in the political arena? Second, how have these goals been pursued in court; that is, what legal arguments were used, how were these related to the goals pursued, and how do these affect the possible impact of the cases? Third, what have been the consequences of court action? Through an examination of the court cases in which native Indians were involved from 1969-1985, four major goals were identified. First, native Indians used the courts in order to ensure that they received the benefits to which they were entitled under the provisions of the. Indian Act. Second, native Indians challenged the way in which the federal government had administered the Indian Act. Third, Indians have attempted to preserve their traditional way of life by arguing that federal and provincial legislation which regulates hunting and fishing should not apply to them. Fourth, native Indians have used the courts in attempts to prevent damage to land and resources to which they have a claim. Native Indians have not attempted to achieve a recognition of their right to self-government through court action; rather they have pursued goals which can be termed "economic" from the viewpoint of non-native society. Native Indians have used the courts both in order to achieve legal solutions to disputes, and as a means of putting economic and political pressure on governments. In their attempts to use the courts to achieve legal solutions, Indians have achieved some successes. The overall utility of the courts as a means of putting economic and political pressure on governments has yet to be determined, although to date it would appear that native Indians have made some gains by using the courts in this way. / Arts, Faculty of / Political Science, Department of / Graduate

The social organization of Canada's inland refugee determination system is explored in this institutional ethnographic study. First listening to refugee claimants' experience from their vantagepoint on the margins of society, the research then explicates the complementary social relations of the refugee determination system in order to examine the contributing social organization and underlying ideology of the politico-administrative system. Three adult, English-speaking single Nigerian men, seeking Convention refugee status or permanent resident status, were interviewed. Phenomenological methods were utilized to analyze the data. An initial explication of the social relations of the system was conducted through the observation of refugee determination hearings and interviews with knowledgeable informants. Through these interviews and textual analysis, ideology at the politico-administrative level was explored. The findings reveal a contradiction between refugees' expectations based on Canada's international reputation in refugee protection and support of democratic rights, and their reception in Canada. Refugee claimants spoke of their dual experience as characterized by exclusion and marginalization from Canadian society at the very time that they needed to reconstruct their sense of self and adapt; of being held suspect as 'criminals' and 'illegals' by the refugee determination system until proven 'genuine'. Inclusion depended on success in the socially, culturally, and politically constructed Canadian refugee determination system; a process that was foreign to them. Comprehension and successful participation in this process depended in part on the support, resources, and information they accessed during their initial settlement period. The organization of the refugee determination system with a focus on the Immigration and Refugee Board (IRB) revealed complex independent decision-making in a highly decentralized, but hierarchical and non-transparent administrative system. Inconsistencies in decision making and in the degree to which refugees had the opportunity to relate their experience in refugee determination hearings were articulated and observed. Aspects of the system such as selection of members, institutional culture, independence of the IRB, and discourse on refugees in the Canadian media and society were indicators of how the social relations of the system were organized by an underlying ideology. Implications for the profession of social work and for social change were examined. / Arts, Faculty of / Social Work, School of / Graduate

In this work, I introduce the concept of identity, outline its importance, and argue in favour of a post-modem conception of identity, underpinned by the principles of contestation, anti-essentialism and hybridity. This notion of identity, which is supported by both theoretical and case evidence, is in tension with the practices of the courts, which are often asked to make determinations that impact identities. The court's conventions and practices privilege a modernist notion of identity; given these restrictions, how are post-modern identities, such as the Metis, to be recognized? Using the case ofK v. Powley, / explore the possibilities and openings for a post-modern concept of identity to be realized in the courts. While there are conflicts and restrictions, judges, courts and the law demonstrate sufficient flexibility to allow for post-modern principles to be realized. I conclude by arguing that the courts should go further in developing a post-modern conception of identity in their work, and explore the issues and implications of doing so. I also reflect on the broader question this work presents, namely the role of the law and the possibilities for change therein. / Arts, Faculty of / Political Science, Department of / Graduate

This thesis focuses on Aboriginal women as survivors of intimate violence, and as participants in debates about justice and rights in the academic, political and legal spheres. While several federal and provincial reports have documented the adverse impact of the dominant criminal justice system on Aboriginal peoples, most of the reports fail to consider the impact of the dominant system, and of reform initiatives on Aboriginal women, who engage with such systems primarily as survivors of violence. Although feminist legal scholars and activists have focused on survivors of violence in critiquing the dominant justice system, such discourses have also tended to ignore the needs and concerns of Aboriginal women in recommending reforms to the dominant system, as well as in theorizing the causes and sites of intimate violence. Using feminist methods, I explore how the writings of Aboriginal women have begun to fill these gaps. In focusing on gender and racial oppression, Aboriginal women have complicated theories on and reforms around intimate violence, and have demanded that they be included in the shaping of public institutions in both the Canadian legal system, and in the context of Aboriginal self-government. While Aboriginal women largely support the creation of Aboriginal justice systems, some have expressed concerns about the willingness of Aboriginal and non-Aboriginal leaders to include women in the process of creating, implementing and operating such systems. The Canadian Charter of Rights and Freedoms, as well as Aboriginal rights under the Constitution Act, 1982 have been advocated as means of achieving Aboriginal women's participation in this context. This gives rise to a number of fundamental questions which I examine in my thesis. What is the historical basis for the participation of Aboriginal women in the political process, and for survivors of violence in both the dominant and Aboriginal justice systems? What is the significance of the absence of Aboriginal women from dominant discourses on justice and intimate violence? Might a broader level of participation for survivors of violence, both Aboriginal and non-Aboriginal, ameliorate the problematic aspects of the dominant justice system? Does the Canadian Charter of Rights and Freedoms provide a vehicle for survivors of violence who seek a greater level of protection and participation in the dominant justice system? Can the Charter, or Aboriginal rights under the Canadian constitution, assist Aboriginal women in establishing a right of participation in the processes leading to the creation of Aboriginal justice systems, and their participation in such systems once they have been created? What are the limitations of rights discourse in this context? My analysis suggests that the Supreme Court of Canada's conservative approach to rights, as well as more fundamental limitations in rights discourse, make constitutional litigation within the dominant system a sometimes necessary, but not ideal strategy for Aboriginal women in defining their involvement in the political and justice arenas. On the other hand, there is potential for rights discourse to bear more fruit once Aboriginal decision making fora are in place, in keeping with holistic approaches to interpretation, and the traditional roles of Aboriginal women and survivors of violence in justice and in the community. / Law, Peter A. Allard School of / Graduate

The author critiques various strands of liberal moral and political theory as they relate to Aboriginal rights. In particular, he rejects the formulation of liberal theory by philosopher Will Kymlicka, as failing to respond to the unique realities and perspectives of First Nations. He then draws on the insights of philosophers Charles Taylor and James Tully to argue for a new approach to Aboriginal rights, premised on principles of dialogue, recognition and the willingness to engage in an "intercultural journey" in which a middle ground of law, informed by Canadian and indigenous norms, is created. In chapters two through four, the author employs Wittgenstein's "perspicuous contrast" in order to reveal the dialogical basis of Gitksan and Wet'suwet'en legal and political structures, as well as to reveal the dominant role that "monologues" play in the Canadian law of Aboriginal rights. He identifies three monologues: discovery, sovereignty and the "authentic Indian," by which Canadian law marginalizes and subjugates First Nations and their legal systems. Such monologues depend for their coherence and success upon Aboriginal silence. In chapter five, the author argues that notwithstanding the persistence of monologues, Canadian law can be open to dialogue and to the broadening of understanding that is required for the construction of an intercultural legal middle ground. He issues a strong call for the legal system to turn to Aboriginal law as a major source for the middle ground, and argues that doing so will help preserve the ability of First Nations to participate in the intercultural dialogue in their own voices and ways of knowing, which is essential to the successful deployment of the approach argued for in chapter one. The author concludes that the middle ground will best be achieved through treaties, backed by an intercultural legal duty on all parties to negotiate in good faith. He also argues that a rethinking of sovereignty is necessary, in order to preserve the ability of First Nations to participate in intercultural dialogue secure in their autonomy and self-determination. To that end, he argues that courts can provide a useful "backdrop" to the intercultural middle ground, by continuously identifying intercultural legal norms which respect bedrock principles of each community's legal system in order to preserve the autonomy and self-determination of each. / Law, Peter A. Allard School of / Graduate

This thesis argues that the Ned'u'ten, an indigenous people, have the right to decolonize and self-determine their political and legal status at the international level. The Ned'u'ten are currently negotiating a new relationship with Canada and are considering various treaty models to achieve this goal. This thesis advocates principles for a peace treaty model that accomplishes both Ned'u'ten decolonization and self-determination. The first chapter of this thesis demonstrates that indigenous perspectives in legal culture are diverse and not homogeneous. My Ned'u'ten perspective on treaty-making contributes to these perspectives. The second chapter challenges the legitimacy of the Canadian state, over Ned'u'ten subjects and territories. This is accomplished through the rejection of dispossession doctrines that Canada has used to justify colonial and oppressive practices against the Ned'u'ten. Decolonization principles are prescribed in this chapter. The third chapter takes a historical view of the right to self-determination and shows how state practice, indigenous peoples' participation, and international scholars have attempted to articulate the scope and content of this right in the contemporary context of indigenous self-determination. A Ned'u'ten self-determination framework is proposed based on indigenous formulations of the right to self-determination. Self-determination principles are also prescribed in this chapter. The final chapter compares two cases where indigenous peoples in Canada are attempting to create a new relationship with the state: the James Bay Cree and "First Nations" in the British Columbia Treaty Commission Process. This comparison will show that the degree of participation that indigenous peoples have in implementing their rights to self-determination, will determine the parameters of any new relationship that indigenous peoples create with the state. Negotiating principles are prescribed for a Ned'u'ten-Canada relationship as well as a peace treaty process to accomplish this goal. It is my thesis that the Ned'u'ten and Canada can achieve a peaceful and balanced relationship through the peace treaty model I propose. / Law, Peter A. Allard School of / Graduate

The last decade has seen the development of an unprecedented profile for aboriginal concerns over the inadequacies of the criminal justice system. This thesis examines the major commissions of inquiry that were established to address criminal justice reforms for aboriginal Canadians. Through a comparison of these inquiries, it is my intention to provide a greater understanding as to why some commissions have had a more positive role to play in initiating policy change, while others have been less than satisfactory in promoting the needs of aboriginal persons. Analysis reveals that commissions of inquiry are most often established to address more general concerns about the impact of the criminal justice system on aboriginal peoples, rather than to investigate specific cases in which there was a miscarriage of justice. My findings also reveal that the current criminal justice system can and should be improved, without in any way detracting from the movement toward the larger social, political and economic goal of self- determination. Due to the fact that autonomous solutions remain prevalent in the academic literature, future inquiries will be required to acknowledge this perspective. An appreciation of the variety of concerns held by aboriginal individuals can only be made possible through extensive consultation with aboriginal communities and utilizing creative and innovative means of gathering research. By providing an open process, commissions will be able to encompass views that may not be prevalent in academic circles, but accepted at a grass roots level. On the much larger question of the policy impact of commissions of inquiry, they have been useful institutions for opening up the policy debate in regards to criminal justice reforms for aboriginal Canadians. Frequently these inquiries have been faulted because their specific recommendations are not accepted. However, inquiries are valuable because they provide one of the few occasions for defining public issues, including debate about reformist and radical conceptions of the issues. Consequently it is more useful to assess commissions of inquiry for their role in the development of policy debate. / Arts, Faculty of / Political Science, Department of / Graduate

This is a study of whether, in the introduction of Indigenous oral traditions as evidence in court, they are being in the complex cultural interplay that occurs in courts, and whether, given the central role of oral traditions in Indigenous cultures, the nature of Indigenous Peoples are being transformed in the process when their rights are adjudicated before the courts. Chapter 2 discusses the ways that the Supreme Court of Canada has defined s. 3 5 Aboriginal Title, Rights and Treaty Rights (as unlimited or lawless and therefore a danger to general public interests; assimilated into Canadian sovereignty; removing the source of these rights from the land in their legal definition; and, removing Indigenous laws from their definition). Chapter 3 examines the role that history has played in the legal interpretation of oral traditions, and argues that a primarily historical consideration obscures the alive, legal, and dynamic elements of oral traditions. Chapter 4 discusses the ways in which a methodology of suspicion has operated to reduce and diminish Indigenous oral traditions when they are introduced as evidence in court (rating them as faulty, light weight historic evidence while obscuring their legal content) through a survey of cases that have considered oral traditions at the trial level. Chapter 5 explores the devaluation of the Indigenous laws contained in oral traditions through an acceptance of the common sense assumption that Canadian conservation and safety laws are both rational and necessary. Chapter 6 argues that recognition (or denial) of Indigenous laws is politically contingent, and that despite limited legal recognition (in cases such as Delgamuukw v. B.C. and R. v. Van der Peef), these laws have yet to flow back onto the land, and are yet to be invigorated in Canadian law. There remains a lack of recognition of the legal content of oral traditions, and Indigenous jurisprudences risk being subsumed and transformed when they are introduced as evidence in Canadian courts. / Law, Peter A. Allard School of / Graduate