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Spring 2020 (Update July 2021)

Resolving Territorial Boundary Issues: Preliminary Considerations for Creating an Indigenous Institution

Table of Contents

Resolving Territorial Boundary Issues: Preliminary Considerations for Creating an Indigenous Institution.............................................................................................................................. 1

Introduction ...................................................................................................................................2

Why Create an Indigenous Institution? ...........................................................................................2

Exploring the Development of Indigenous Institutions Regarding Territorial Boundaries (Examples).4

Contexts and Foundations for Designing an Indigenous Institution ..................................................7 Relevant Legal Context .......................................................................................................................................... 7 Guiding Principles and Foundations for Designing an Institution ....................................................................... 11

Questions for Exploration ............................................................................................................. 16 Topic 1: Establishment of the Institution ............................................................................................................ 16 Topic 2: Purpose and Functioning of the Institution........................................................................................... 17 Topic 3: Qualifications and Appointments .......................................................................................................... 18

Advancing an Indigenous Institution ............................................................................................. 19

Bibliography ................................................................................................................................. 21

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Introduction The purpose of this short paper is to provide a survey of some background information, as well as preliminary concepts and perspectives, that may inform dialogue and development by First Nations in BC of approaches to the establishment of an Indigenous institution that may assist with the resolution of inter-Nation territorial boundary issues, such as shared territories and overlaps. This paper does not advocate for a specific type of institution such as a “commission”, “tribunal”, or “board”, or recommend the development of any particular model of institution. That is work that must unfold over time led by First Nations in BC. As well, a starting premise of this paper is that an Indigenous institution to support First Nations to resolve territorial boundary issues will necessarily be a unique type of institution, unlike those we have seen before – it will be created by First Nations in BC to meet specific aspects of the work of decolonization at this moment in time. Depending on the decisions made by First Nations, an institution may well have features or aspects that are associated with certain “commissions”, “tribunals”, or “boards” that we already see, or it may look significantly different. As well, it is important to remember that “commission”, “tribunal”, and “board” are not terms of art. They are often used by people to mean different things, and sometimes used interchangeably. Though, generally speaking, they are each western concepts of institutions, built on western (non-Indigenous) laws and perspectives. As such, this paper focuses on preliminary ideas regarding themes, principles, and questions – some of the initial substance that has to be considered in developing an institution – and does not engage questions about how such an institution may be categorized.

Why Create an Indigenous Institution?

The need for structural supports for resolution of territorial boundary issues between First Nations has been discussed and examined for many years. The need is well-recognized, and is grounded in the basic historical reality of the extent to which colonialism in Canada relied upon the use of law, policy, and the power of the State to weaken Indigenous governments, institutions, and structures, and to create division between and amongst Indigenous peoples. Through such divisive practices, colonial plans for land settlement, economic growth, and social control were facilitated. At the same time, disempowerment and division of Indigenous peoples were aligned with moralistic and assimilationist cultural agendas, as Indigenous peoples were removed from their ancestral lands, and their territorial sovereignty ignored. There have long been, and continue to be, vast concerns about how the Crown continues to exploit the colonially imposed divisions among First Nations, in particular boundary issues generally referred to as shared territories and overlaps. This includes how the Crown uses territorial boundary issues to delay or avoid establishing proper relations; justify avoiding obligations to consult and accommodate or complete agreements and understandings; and to support outcomes with some First Nations that may infringe the rights of others.

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As well, to state it bluntly, overlap and shared territory disputes are also all hindrances to the full recognition and implementation of Title and Rights – that is, the full achievement of this goal is at least partially dependent upon the pace and scale of addressing and resolving any such disputes. Aboriginal Title, as confirmed by the Supreme Court of Canada in decisions such as Delgamuukw1 and Tsilhqot’in Nation2, extends to large areas, carries with it jurisdictional authorities and the necessity to meet the standard of consent, and includes the Title-holder having the full beneficial interest in lands and resources. In the trial decision in Tsilhqot’in Nation, the test for proper Title and Rights holder was articulated by the Court as being the “historic community of people sharing language, customs, traditions, historical experience, territory and resources at the time of first contact and at sovereignty assertion”3, and one indicia of Title, as affirmed later by the Supreme Court of Canada, is that historically a Nation occupied the land exclusively, meaning it had jurisdictional control over it. Aboriginal Title is not dependent upon Crown recognition nor Court declaration for its existence, and does not emanate from the Constitution of Canada.4 It exists because of the sovereignty of Indigenous peoples who have owned and governed the land and resources that now comprise British Columbia for countless generations. Given this character of Aboriginal Title, its full implementation – expressing the full promise and reality of Title in all of its dimensions – is advanced when First Nations are organized as proper Title and Rights holders, with their systems of governance and law continuing to evolve and where territorial boundaries, and relations with neighbouring Nations, are clear, structured, and understood. In acknowledgement of these complexities, First Nations in BC have long identified the need for institutional supports in doing critical work such as the resolution of shared territory and overlap issues. While colonial laws, policies, and practices are largely responsible for this challenge, the reality is that a significant burden has been placed on First Nations to address it in order to ensure that the outcomes are consistent with the furtherance of Indigenous protocols, history and laws and self-determination. As well, while at times the court system has been asked to weigh in on boundary resolution matters, the experience has been highly problematic. In addition to the inappropriateness of many aspects of adversarial court procedures for addressing issues of inter-Nation relationships, there also exist substantive and important differences between how common law and Indigenous legal orders envision, interpret, and express relationships to land and resources.5 The reality is that are very few, if any, instances where the courts have played a constructive role in territorial boundary disputes that have resulted in outcomes that are harmonious, constructive, and reinforce peace and cohesion. Given this, there has been a broad consensus from First Nations, experts and,

1 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do. 2 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do. 3 See paragraph 470 in https://www.bccourts.ca/jdb-txt/sc/07/17/2007bcsc1700.pdf. 4 See paragraphs 60 -66 in https://www.canlii.org/en/bc/bcca/doc/2015/2015bcca154/2015bcca154.html. 5 Many of these complexities can be seen in court challenges regarding modern treaties, where legal technicalities and the use of legal language and devices, have led to scenarios where outcomes that are constructive and build cohesion and understanding for all First Nations involved are not achieved.

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increasingly, Crown governments that conventional, adversarial, court processes are not the best or appropriate venues for the resolution of territorial boundary disputes.6

Exploring the Development of Indigenous Institutions Regarding Territorial Boundaries (Examples) There have been many approaches, and discussion of models and supports, for the resolution of territorial boundary issues over many years. And of course, on the ground, First Nations in BC are advancing the work of resolution in a range of ways every day. Recommendation 8 of the Report of the British Columbia Claims Task Force (1991) was that “First Nations resolve issues related to overlapping traditional territories among themselves”.7 Over many years, the role of the BC Treaty Commission has been a subject of much examination and commentary since it was first created in 1993 regarding how it can play a more active role in pressing issues related to the BC Treaty Process, including assisting in implementing Recommendation 8 and First Nations resolving territorial boundary disputesF.8 For example, over the past few decades there have been multiple reports, analyses, commentaries, as well as resolutions from the First Nations Summit identifying the need for more authority, role definition, as well as supports for the BCTC Commission to play roles such as directly mediating boundary disputes.9 These evidence the broadly held view that greater institutional and structural supports are needed. In 2005, the New Relationship Vision endorsed by the FNLC and BC included an Action Plan with multiple new institutional components including:

1. Develop new institutions or structures to negotiate Government-to-Government Agreements for shared decision-making regarding land use planning, management, tenuring and resource revenue and benefit sharing;… 2. Identify institutional, legislative and policy changes to implement this vision and these action items;…

6 There is some discussion of this point in http://www.bctreaty.ca/sites/default/files/BCTC-Annual-Report-2014.pdf. 7 https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations/report_british_columbia_claims_task_force_full.pdf.

8 http://www.bctreaty.ca/sites/default/files/BCTC-Annual-Report-2014.pdf. See also: Multilateral Engagement Process to Improve and Expedite Treaty Negotiations in British Columbia” endorsed by the Principals (Canada, BC and the FNS) on May 24, 2016, accessible at https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/multilateral_engagement_process_for_treaty_-_june_7_2016.pdf. 9 For example, see discussion regarding “overlapping claims”. https://sencanada.ca/content/sen/Committee/411/appa/rep/rep08jun12-e.pdf.

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5. Establish funding and distribution structures/institutions to support First Nations’ capacity development and effective participation in the processes established through these action items;….10

In 2009 the most progress towards such an institution was probably achieved as part of the effort to develop a BC Recognition and Reconciliation Act. The Discussion Paper on Instructions for Implementing the New Relationship11 that described the proposed Act identified two purposes of the legislation as:

-set out a vision of re-building Indigenous Nations and establish a new institution to support and facilitate the process; -establish processes, mechanisms or a new institution to assist in resolving any disputes that may arise regarding the interpretation or implementation of the legislation, regulations or any agreements concluded pursuant to the legislation.

It was further proposed that the Act would create an Indigenous Nation Commission:

The legislation will establish the Indigenous Nation Commission, developed collaboratively with the First Nations Leadership Council. The Commission will facilitate the identification, formation or reconstitution of the political structures of Indigenous Nations and confirm that such political structures have mandates from the proper title and rights holders to enter into shared decision-making and revenue and benefit sharing agreements with the Crown. The Commission could also work with Indigenous Nations to resolve issues of overlaps and shared territories.

While the proposed commission did not move beyond the conceptual stage in 2009, it was understood at the time that the main role of BC in the commission would be related to funding – and that the commission would be First Nations controlled, led, and operated. Since 2009, advocacy for an Indigenous Institution has continued. The idea of forming a commission was included in the original version of the Commitment Document completed in 201512, and maintained in the final (2018) version. All of these versions were supported and endorsed by First Nations through resolution at the BCAFN, FNS, and UBCIC. The Commitment document described a commission in the following terms:

10 https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/other-docs/new_relationship_accord.pdf. 11 http://www.mwpr.ca/cgi-bin/show_article_attachment.cgi?ID=3644&F=implementing_the_new_relationship_0309.pdf&X=1523853872000/implementing_the_new_relationship_0309.pdf. 12 https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/commitment_document_work_plan__2016.pdf.

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Establish an Indigenous commission: designed, established and driven by First Nations, to provide certain supports to First Nations, respectful and reflective of, and consistent with, First Nations’ rights of self-government and self-determination. The commission would provide a range of processes and options that First Nations may opt-in to use, from non- binding to binding outcomes. The commission would support First Nations upon request with respect to: 1. boundary resolution, in accordance with First Nations’ respective laws, customs, and traditions; and 2. nation and governance building including:

a. constitution development, b. territory decision-making and land use/ territory planning, c. law-making, d. policy development, and e. development of political institutions, consistent with principles of the proper title and rights holder.

Once established, it is expected that both the federal and BC provide the necessary, sustainable resources/funding for the effective functioning of the independent commission.

In recent years, the development of new Indigenous institutions also gains support from the Calls to Action of the Truth and Reconciliation Commission13 and the United Nations Declaration on the Rights of Indigenous Peoples14 (UN Declaration), and efforts First Nations are leading for their implementation. Call to Action 50 highlights the necessary roles for Indigenous laws, and the creation of law institutes.15 Call to Action 53 re-enforces the roles that new institutions can play, such as a National Council for Reconciliation.16 The UN Declaration affirms a number of standards that must be respected by new Indigenous institutions, and could include roles and responsibilities that may be played by such institutions. The standards of self-determination and self-government are clear in the UN Declaration in articles 3, 4, and 5. Various articles also speak to work that could be done through institutions,

13 http://trc.ca/assets/pdf/Calls_to_Action_English2.pdf. 14 https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf. 15 Call to Action 50 states: “In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.” 16 The National Reconciliation Council identified in Call to Action 53 is in the process of being established, and currently has an interim Board: https://www.rcaanc-cirnac.gc.ca/eng/1524503926054/1557514163015.

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presuming they are properly aligned with the standards of the UN Declaration such as article 27 which states that:

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.

The endorsement of the UN Declaration by First Nations, as well as the federal and provincial governments – including through the co-development and passage of the Declaration on the Rights of Indigenous Peoples Act in BC – illustrates how central the UN Declaration is to all reconciliation work into the future. In all of these efforts, studies, and foundational documents, one finds a constant reiteration of the core rationale for new Indigenous institutions that may support resolving territorial boundary matters: that the transition from colonial patterns and relations to ones grounded in Indigenous self-determination, and recognition and implementation of Title and Rights, can be aided and advanced through new institutional and structural supports.

Contexts and Foundations for Designing an Indigenous Institution

If it is structured, designed, and implemented poorly, an institution could do more harm than good. As such, it is fundamental to examine some foundations which are consistent with the overarching rationale of supporting First Nations in transitioning from patterns grounded in colonialism to new paths rooted in Indigenous self-determination, the inherent right of self-government, and recognition and implementation of Title and Rights.

Relevant Legal Context To inform development of guiding foundations for Indigenous institutions, it is important to briefly note aspects of the legal context in which it will be built, and in particular how Indigenous legal orders may inform the design, development, and operation of an Indigenous institution to help resolve territorial boundary issues. Indigenous legal orders laws and customs guide governance, conflict resolution, and peace-making within and between First Nations.17 These legal orders are diverse, dynamic, and

17 While the primary sources for First Nations laws and conflict resolution processes are First Nations themselves, there is a growing body of expert and scholarly research, much of it developed in partnership with First Nations. In the bibliography to this Paper a number of particular sources are noted.

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distinct, and were a foundation for how relations between neighbouring Nations, including territorial relations, were governed and resolved for millenia. Discussions of creating new Indigenous institutions, including for shared territory and overlap matters, have always emphasised the necessary role of Indigenous legal orders. Any institution that will have legitimacy in resolving and repairing colonially perpetuated divisions that interfered with the operation of these legal orders, must be structured to operate in a manner that supports, respects, aligns with, and appropriately accesses these legal orders and customs, and does not simply reproduce western, colonial, or imposed worldviews, approaches, and practices. For example, the Commitment Document identifies assisting with territorial boundary resolution as a critical function of a commission. Of course, “territorial boundary resolution” is a subject of extensive legal and political attention historically, and today, in many contexts around the world. Between nation-states, in addition to war and conflict, there are legal processes established for resolving boundary disputes at international law, such as through the International Court of Justice that can pass judgement on these issues as a court applying international law .18 However, little within these formal international court processes would appear particularly relevant to the context of First Nations territorial boundary dispute resolution in British Columbia. Rather than looking at external contexts, what must be understood is how a new institution can support and play a role within the distinct environment of Indigenous worldviews and legal orders that encourage and mandate different norms and approaches for addressing such matters. As one expert notes:

The worldviews that underlie Western and Indigenous cultures are starkly different from one another. For example, Indigenous approaches to addressing conflict are more accurately described as conflict transformation in that they seek to address the conflict in ways that heal relationships and restore harmony to the group. In contrast, Western conflict resolution methods prioritize reaching an agreement between individual parties over mending relationships that have been damaged by the conflict.19

Interlinked with these different perspectives of conflict, are different notions of justice and democracy, which are also influenced by the experience of colonization and injustice that Indigenous peoples have experienced and the importance of self-determination:

The dominant western political vocabulary has a readily available story about how to resolve disputes between groups over perceived conflicts of interests, aspirations, or ac- cess to resources: let each side make its case before a neutral third party, who will

18 A good summary of the International Court of Justice is at https://www.britannica.com/topic/International-Court-of-Justice. It should be noted that the ICJ can also provide advisory opinions. 19 Polly Walker, “Decolonizing Conflict Resolution: Addressing the Ontological Violence of Westernization,” 528.

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decide objectively on a just settlement. This common-sense story of adjudication has deep roots in western cultural, legal, and philosophical traditions, and is closely tied to accounts of political legitimacy. In its common-sense version, this story about neutrality and justice has tremendous currency in North America: it is seen as describing not only the aspirations of our legal and political systems, but even their typical operation. Seen from the standpoint of Aboriginal struggles for survival, equality, and self-determination, however, the dominant western account of justice looks deeply corrupt.20

There is also the need to keep in the forefront the relationship between colonialism and patriarchy, and the essential role of Matriarchs and women in most, if not all, Indigenous legal orders historically and in their revitalization. A new institution must make sure to affirm, respect, and reflect this in its design, development, and functioning.

Indigenous legal orders are also plural and diverse, something which the design of a new institution must specifically be able to reflect, make space for and be responsive to. As one study of modes of Indigenous legal traditions across Canada identified from working with a number of communities, including Elders, Matriarchs and knowledge-keepers:

(1) There is no ‘one size fits all’ approach within or among Indigenous legal traditions.There are a wide variety of principled legal responses and resolutions to harm andconflict available within each legal tradition....(2) Indigenous legal traditions reveal both consistency and continuity over time, andresponsiveness and adaptability to changing contexts.21

While models of institutions that resolve disputes in manners grounded in Indigenous legal orders have not been previously the subject of systematic development by the collective of First Nations in British Columbia, there have been a few helpful examples of how dispute resolution may be designed to operate through Indigenous legal orders that are useful as background to thinking about how an institution may be designed.

For example, Dr. Val Napoleon has developed and championed the model of the Indigenous Legal Lodge for over the past decade, including through academic study, presentations, and practical work on the ground with First Nations. As Dr. Napoleon described in 2007, the “Lodge” could operate through a combination of:

• The First Nations involved in the dispute (the Parties);

20 David Kahane, “Dispute Resolution and the Politics of Cultural Generalization” 6. 21 Hadley Friedland and Val Napoleon, "Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions" 34 and 37, https://www.uvic.ca/law/assets/docs/ilru/Gathering%20the%20Threads%20Lakehead%20Law%20Journal%202015%20Friedland%20Napoleon%20.pdf

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• An appointed panel of three individuals from a neutral First Nation who work with parties to draft agreements;

• Three facilitators with knowledge and experience with Indigenous legal orders and law to work with leadership and members of the First Nations to articulate their Indigenous laws, frame legal perspectives, define legal obligations and principles, and consider their approach to the issues; and

• an expert in Canadian law to advise and support the panel working with parties to draft agreements.22

The stages in resolving a conflict, such as a territorial boundary conflict, in the Lodge framework might, depending on the context, include:

1. An initial meeting of the parties to determine process design;

2. A feast confirming the commitment of each party to the agreed upon process; 3. The Lodge itself would sit for a minimum of five days to hear from community

representatives who speak to the nature and scope of the overlap area as well as their experiences of the land, current uses, and kinship;

4. The panel works with parties to draft non-binding agreements on managing joint

interests in the area and on future political affirmation and commitment requirements for each generation; and

5. If there is no consensus around the agreement, the facilitator makes a non-binding recommendation to the parties.23

While an institution to help resolve shared territory and overlap matters must be grounded in Indigenous legal orders, it is also important to recognize that the resolution of territorial boundary matters also has implications within the constitutional order of Canada, and common law. As discussed earlier, resolving such matters has linkages and implications for the broader work of reconciliation, respecting and implementing Title and Rights, and the Crown meeting its constitutional obligations. It has implications for treaty and agreement-making, redress for historic wrongs, the effectiveness of negotiations, and how Crown and First Nations laws and jurisdictions will make decisions together, consistent with the standard of free, prior, and informed consent.

22 Val Napoleon, Indigenous Bar Association Annual Conference: Indigenous Legal Lodge.This summary is also taken from Jessica Dickson, “Addressing Disputes Between Indigenous Nations: An Exploration of the Indigenous Legal Lodge” https://pdfs.semanticscholar.org/c166/3beb903a2b9397f25682ccf56614a30def15.pdf. 23 This summary is also taken from Jessica Dickson, “Addressing Disputes Between Indigenous Nations: An Exploration of the Indigenous Legal Lodge”. https://pdfs.semanticscholar.org/c166/3beb903a2b9397f25682ccf56614a30def15.pdf.

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For these reasons, it is important for First Nations – as well as the Crown and third parties – that the outcomes of resolutions to shared territory and overlap matters are cognizable to and recognized by the common law. To be clear, this does not mean that ultimately a “court-like” process grounded in common law approaches to evidence and legal standards is required; nor does it mean that processes must be dominated by lawyers, or judge-like decision-makers. It does not mean processes must be adversarial in nature, or that the Crown must be a party to resolution efforts. What is important, however, is that there are mechanisms and understandings that help ensure that the outcomes of resolution processes through an institution may be relied upon for processes of reconciliation and agreement-making, be recognizable by courts and, further, that the Crown and others will respect and acknowledge the outcomes that may be reached. This can be facilitated in many ways, including through Crown acknowledgement and agreement to recognize the outcomes of processes through the institution, the recording of outcomes in certain forms of agreements, the maintenance of accessible databases and other sources of information that reflect aspects of the understandings reached by First Nations regarding territorial boundaries, and how First Nations choose to state the foundation on which they reached a resolution, including the information, knowledge, evidence and experience relied upon. Ensuring these things is also aligned with article 27 of the UN Declaration, which as noted earlier speaks to proper processes for adjudicating Indigenous rights.

Guiding Principles and Foundations for Designing an Institution With these contexts as background, what are some foundations or principles on which a Institution may be designed? Some preliminary foundations to consider are the following.

• First Nations Control: Indigenous control of an institution is essential. Control, in this context, means that full responsibility for the establishment, administration, and operations of the institution must be at the direction of the First Nations of BC, through structures, processes, directives, and mechanisms that they have endorsed. This also includes control over the processes for appointment of those responsible to lead the institution. Such control is essential to ensuring basic minimum standards of the UN Declaration are met, including provisions that emphasise the autonomy of Indigenous institutions. Such control is also essential to ensuring the institution can properly be seen as advancing and supporting the work First Nations are already doing, often guided by their own Indigenous legal orders and customs, to resolve territorial boundary disputes.

• Independence from the Crown: The role of the Crown in the institution should be extremely limited – such as to funding support - to ensure its independence and ability to play an effective role. It is imperative that the Crown be fully arms length from the institution, its operations, and functioning. Core to the institution playing a purposeful role is that it is an

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agent of supporting self-determination, which cannot be achieved where there is a perception or reality of hidden Crown agendas or involvement. This principle is also integral to positioning the institution to be an agent of supporting transition from patterns of colonialism to those of self-determination. Reflected in this as well is the reality that the work of resolving territorial boundary matters, is, as described earlier, work that can ultimately only be led by Indigenous peoples through Indigenous jurisdictions and laws, while also having elements of fairness, independence, and autonomy, which help assure that outcomes are recognizable within the common law.

• Trust: A central element of the design and operations of the institution is that it must engender growing trust in the First Nations it seeks to work with in resolving shared territory and overlap matters. This has many implications for models of institutions, including how it is structured, how it brings transparency to its work, and the design of the actions and services it might offer. Absent high trust amongst First Nations, an institution will never be able to play an effective role. For this reason, it must be designed and implemented by First Nations for First Nations, in a way that we have rarely, if ever, seen before. Its legitimacy will rest upon how it stands apart from the institutions and mechanisms that have been agents of colonialism in Canada’s history, and how it has the space and flexibility to offer processes and supports that are shaped with and by the First Nations who participate in them.

• Voluntariness: Voluntariness of participation is essential. It is difficult to imagine how a resolution process for shared territories and overlaps could be legitimate, successful, and supported if a First Nation was forced to engage in it (such as like when one is sued in a court). As a general principle, it is suggested that no First Nation should be forced to use an institution by another First Nation (or anyone else), or required to have to turn to the institution. Such a principle of voluntariness aligns with self-determination. It is also broadly supported in theories and approaches to dispute resolution, in both Indigenous and non-Indigenous traditions, including as discussed earlier. As well, specifically with respect to issues of “overlaps” there are lessons to be learned from approaches in other parts of the world24, such as Australia and Nicaragua, where a lack of voluntariness can be seen to contribute to situations of conflict, and have the counter-productive result of allowing state action that impacts Indigenous peoples to continue unchecked.

To be clear, voluntariness does not mean that an institution won’t have processes that result in binding outcomes. First Nations could choose to utilize, by agreement, a process with a binding result that is from a decision-maker. An institution may also have established or fixed processes which, should First Nations choose to access them, necessarily result in a binding outcome through established decision-makers. As such, in the language of dispute resolution, an institution’s processes may not merely be meditative or facilitative in nature

24 See a recent analysis of approaches around the globe in Ermin Isic, Addressing Overlapping Territorial Disputes Amongst First Nations, https://pdfs.semanticscholar.org/d9fe/0b15c0e96661b2a7ee1451e57c5dfea74eb9.pdf.

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– they could include what may be understood as forms of arbitration (where binding outcomes by a decision-maker are the result).

• Flexible, Adaptable and Integrative: Consideration should be given to procedures and mechanisms established and implemented by an institution being somewhat non-prescriptive and responsive in character, as distinct from those that may be overly prescribed, fixed, and limited. Perhaps the simplest way to describe this distinction is to say that an institution maybe should not be structured with procedures and mechanisms that are fixed like that of a court, where First Nations are expected to step into a rigid process, with strict rules, that is established apart from expertise and consideration of their own laws, traditions, and protocols. If an institution were to function in this way, and in effect become a “court” by another name, then why create it?

Moreso, an institution must have an orientation towards the processes and supports it offers which accepts distinctiveness and uniqueness between and amongst First Nations as a starting point. In the lexicon of conflict resolution, the orientation towards processes and mechanisms must “elicitive” and “integrative”.25 At its core, this means the local knowledge and expertise – the ‘indigenous’ knowledge of the Indigenous peoples involved in the conflict – is a foundation for articulating the process and mechanisms through which resolution will be set. The institution must be designed and trained in the expertise of eliciting and supporting this use of local knowledge and expertise. One example of such an approach was in the example of the Indigenous Legal Lodge given earlier. Such an approach places culture, and cultural distinctiveness, at the forefront and ensures it is respected.

To be clear, there are established methods and models of using, and training people, in elicitive and integrative approaches to supporting the resolution of conflicts. The reality is, however, that in Crown-Indigenous relations, and sometimes in relations between Indigenous groups on matters related to issues of Title and Rights as understood in the common law, these are not explored and used to the degree they should. Rather, for

25 As one expert has summarized:

In response to a growing need for more multifaceted approaches to resolving conflict, many practitioners have begun the project of re-crafting conventional processes. In general, they are shifting their focus to identifying and accommodating multidimensional values at stake in disputes and securing outcomes that are accepted not simply because they are “win-win”, but because they are reflective of broader cultural realities (LeBaron 1992; Kahane, 2003). This shift in focus is largely based on the work of conflict transformation theorist John Paul Lederach and others who share the basic assumption that in order for a DR process to deal meaningfully with the root causes of a dispute and satisfy people’s needs in a comprehensive way, they must be respectful, inclusive, and rooted in culture (Lederach, 1995; LeBaron, 2004; Osi 2008-2009; Bell, 2004; MacGinty, 2008). As an outgrowth of this assumption, these authors share the view that external conflict “experts” do not hold a monopoly on understanding DR processes and skills, and draw attention to the importance of community participation in the work of process design. (Jessica Dickson, Addressing Disputes Between First Nations: An Exploration of the Indigenous Legal Lodge, https://pdfs.semanticscholar.org/c166/3beb903a2b9397f25682ccf56614a30def15.pdf?_ga=2.209687314.1478552177.1566328502-992500085.1566328502).

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reasons of Eurocentric bias and laziness, there is a reliance on more prescriptive models, such as those labeled ‘interest-based’ that are not designed for this complex and distinctive context. A foundation for the institution should be the privileging of Indigenous methods and models, as well as the use of hybrid models (that draw on multiple traditions, including potentially common law traditions), that are grounded in building approaches and processes with the First Nations they support. Another aspect of being flexible and adaptable, however, is that an institution can have multiple tracks and models of processes that it offers and supports. Some may be more formal, binding, and established in character – with procedures, including ways of using evidence, that will apply if First Nations choose that track. Others may be more far more informal, where a resolution process is co-designed, within certain parameters, with the First Nations seeking to use it. A final aspect of being flexible and adaptable is timeliness. Court processes are often interminable – and the implementation of court decisions is even slower. The impacts of colonialism – however – are ever-present, and the need for change that leads to new patterns that positively impact the lives of children, families, and communities is urgent. Addressing shared territory and overlap issues, and through that accelerating the work of true implementation of title and rights, is an imperative that needs to happen now, and not await some distant future.

• Indigenous Legal Orders and Legal Pluralism: As discussed earlier, Indigenous legal orders must be central to the institution. Relatedly, an institution must have legal pluralism at the foundation of how it is designed and structured, and how it operates. An institution must be able to navigate and support the utilization of multiple legal traditions, and the relationships between legal orders. Further, it must be able to do this both amongst diverse Indigenous legal orders, and also between Indigenous legal orders and the common law. In this regard, some lessons may be drawn from examples around the world, such as how systems of laws are utilized in the Waitangi Tribunal26, but with a clear focus that what is needed in BC is a distinctively made-in-BC approach.

• Uniqueness: No institution of this nature has ever been built in Canada, by and for First Nations. For example, most models of commissions across Canada adopt an approach of having one or a number of standing, permanent commissioners. This is true in human rights commissions, and also in new institutions such as the Office of the Indigenous Languages Commissioner.27 But, in designing an institution, First Nations in BC could decide to pursue other models of who acts as commissioners or leads the institution, including, for example creating opportunities for appointments to be made in relation to specific matters or topics, or for different tracks or models of resolution process. Such locally driven opportunities for

26 For an overview of the Waitangi Tribunal see https://waitangitribunal.govt.nz/about-waitangi-tribunal/past-present-future-of-waitangi-tribunal/. 27 https://www.parl.ca/DocumentViewer/en/42-1/bill/C-91/first-reading.

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roles and appointments - which could be designed in any number of ways – could play a role in supporting responsive processes and mechanisms that are viewed as legitimate. In addition, as already articulated, there is no institution that utilizes Indigenous laws and legal orders in relation to shared territories and overlaps.

• Non-Adversarial or Court-like: While an institution should be viewed as supporting outcomes that may be relied upon by First Nations, the Crown, and stakeholders and, indeed, may provide binding outcomes in certain contexts that may have legal force and effect (such as through agreements), it is challenging to see how the institution may be conceived of as a formal, lawyer-driven, adversarial body, such as a court or many administrative tribunals.

To be clear, as noted earlier, terms such as “tribunal”, “commission”, or “board” are not terms of art – they are sometimes used interchangeably and are also often used in a range of different ways. However, in general, in Canada, the term “tribunal” connotes something that is distinct, but not that dissimilar, from a court. Administrative tribunals in Canada are created by Crown governments, through legislation, to independently address certain conflicts that arise between governments and citizens, or between citizens themselves. Typically, tribunals share many features with courts – they have more formal procedures, rules of evidence, use of witnesses, binding decision-makers, and roles for lawyers and experts. While there is a wide range of tribunals, and some differences in how they function, they will typically still reflect many aspects of adversarial processes seen in courts. As well, in many instances citizens or governments can be required to use a Tribunal, and there are necessary legal requirements for the availability of appeals to the court system. First Nations, of course, have experience with tribunals. A prime example is the Specific Claims Tribunal created in 2008 through the Specific Claims Tribunal Act. Many of the features of tribunals noted above are reflected in the Specific Claims Tribunal. While not as formalized or adversarial as a Court, it is quite different than, for example, processes of dispute resolution designed to foster collaboration and consensus, responsive to Indigenous laws, and with proper space and roles for protocol, tradition, and ceremony. It is also different than a process that may be designed to result in a binding outcome, by a binding decision-maker, where the First Nations have voluntarily chosen to participate, and to agree to be bound to the outcome. As well, even though the Specific Claims Tribunal is intended to be a more accessible, effective, and efficient forum the settlement of historic claims, significant concerns remain about its accessibility, the conduct of the Crown within the process, the standards that are applied, and the use and availability of appeals. Ultimately, thinking through the development of an institution solely through the specific lens of creating a new administrative tribunal is unlikely to prove particularly helpful. They are a model of institution that necessarily impose process, standards, and decisions on those who use them, and bring certain common law requirements, and use of the common law system, in ways that will not necessarily be supportive of First Nations undertaking the work of resolving shared territories and overlaps. As mentioned throughout this paper,

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however, many aspects that some First Nations may wish to see that might be more typically associated with a tribunal – such as tracks for binding outcomes, and Crown and stakeholder acceptance and reliance upon the outcome of a process – can still be a part of many models of Indigenous institutions.

• Educative: One of the challenges that First Nations have faced in dealing with territorial boundary matters is the lack of understanding amongst the Crown, stakeholders, and the general public of the colonial roots of these divisions, the work that is being done to resolve them, and how other actors can support efforts at resolution. Many of the TRC Calls to Action relate to the need to continue to educate governments, organizations, and Canadians about these realities, and the work that must be done. While First Nations are undertaking the work of addressing these matters, with support from an institution, there is the opportunity for an institution to play additional supportive roles. Amongst other things, the institution will be an institution with significant expertise in the work and complexities of Indigenous dispute resolution, and have a platform and public visibility through which to help explain these issues to all British Columbians. First Nations should consider providing a mandate to the institution to play a role in educating the public more broadly about territorial boundary matters, self-determination and self-government, their importance, how they are advanced, the work First Nations are doing, and the ways in which governments, stakeholders, and British Columbians can be constructive and supportive.

Questions for Exploration With these rationales, contexts, and foundations as a guide, there are certain topics First Nations in British Columbia will have to explore in developing an institution. In this paper, three topic areas are identified. High-level questions are raised for exploration, with a few general starting ideas briefly offered to help start dialogue. Detailed and specific answers to the questions below, and others, need to be developed through on-going work amongst and between First Nations.

Topic 1: Establishment of the Institution The institution must be established through an instrument, or series of instruments – such as an agreement, statute, resolutions from First Nations or First Nations organizations, or otherwise. Key questions that need to be answered are:

• How will First Nations establish the institution?

• What will the role of the Crown be in the establishment of the institution?

• Are there comparable entities or analogies to the institution?

• Is Crown legislation necessary or a good idea? In answering these questions, the following ideas may be considered as a starting point for discussion:

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• The strongest and most effective institution would be one that is created by the collective of First Nations in British Columbia. Such collective creation could be affirmed in multiple ways, through internal First Nation processes, as well as processes and resolutions of the BCAFN, FNS, and UBCIC, such as have been used in other instances by the First Nations of BC;

• One approach to ensuring First Nations direction may be the development of a consensus set of “guidance and direction” to guide all aspects of the development of the institution, and be incorporated into all founding instruments/mechanisms. The guidance and direction could reflect the critical legal context, principles, and foundations for the institution. It is where the design of a model of a unique institution – that may have some features that are more “commission” like and some that are more “tribunal” like – could be worked out at a high-level.

• It may be considered that some form of co-developed legislation and an agreement with the Crown may be needed to establish the institution, including for the purposes of confirming sustainable and steady funding, confirming the independence of the institution, clarifying the relationship of the Crown to outcomes and resolutions reached through the institution, and clarifying the limits of any Crown role. Full consideration should be given to how legislation may be one of multiple instruments to establish the institution (or give the institution legal recognition by governments and others), while ensuring the Crown does not have control or inappropriate roles in the work of the institution.

Topic 2: Purpose and Functioning of the Institution The specific role and mode of functioning of the institution will need to be defined as part of its creation. This includes clarifying what kind of role the institution may play with First Nations in resolving shared territory and overlap conflicts. Key questions that need to be answered are:

• What are the specific purposes of the institution?

• What powers does the institution need over its own functioning?

• What structures will support the institution in meeting its purposes?

• How will the institution remain accountable? In answering these questions, the following ideas may be considered as a starting point for discussion:

• The core purpose of the institution may be defined as to assist First Nations in addressing territorial boundary disputes which are related to First Nations rights through voluntary processes. Consideration needs to be given to the scope of

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authority of the institution to also have processes with binding outcomes and decision-makers.

• First Nations may wish to consider how an institution may be capable of evolving its roles, and structured to allow for this evolution to occur. For example, First Nations may want the institution to be available to play a role in other types of disputes in the future, or to expand how it has paths that are binding. Similarly, consideration should be given to the institution offering multiple tracks of dispute resolution, from those that are have more binding outcomes and formal roles, to those that are less so.

• First Nations may wish to collectively develop a specific statement of purposes of the institution that serve as guidance in its development. Examples of purposes would include those related to developing and implementing voluntary processes for territorial boundary dispute, developing research and recommendations to assist in First Nations resolving such disputes, identifying policy, legislative and other obstacles and barriers to resolution, the relationship of the Crown and stakeholders to the institution, doing public education regarding territorial boundary disputes and their roots in colonialism, and accountability and reporting to First Nations.

• Consideration should be given to the institution having a sphere of autonomy and control over its own structure, administration, and processes, so that it can act properly as an independent agent of dispute resolution.

• First Nations should consider the development of roles for advisory councils to the institution, specifically with regard to the role and use of Indigenous laws, customs, and traditions, such as an Elders/Matriarchs/Knowledge-Keepers council and an Indigenous legal experts’ council.

Topic 3: Qualifications and Appointments The utility and effectiveness of the institution will depend significantly on how individuals are appointed, and the qualifications that individuals are required to have. Key questions that need to be answered are:

• What are the qualifications for appointment?

• What are their specific roles?

• How many appointments will there be?

• How will individuals be appointed? In answering these questions, the following ideas may be considered as a starting point for discussion:

• First Nations need to set clear criteria and qualifications for appointments that are grounded in the vision that First Nations set for the institution. If this vision is one of conducting dispute resolution for territorial boundary matters, then

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particular forms of expertise will be required, including in Indigenous laws, customs, and traditions, knowledge of the common law, as well as expertise in conflict resolution.

• Consideration should be made about how to ensure that a wide range of expertise and individuals may be drawn on to assist with the institution. Criteria and qualifications that may be set cannot be overly prescriptive so that they exclude forms of experience that are relevant, and limit the pool of potential candidates. For example, limiting the pool of appointments to those with certain types of legal training could result in excluding extremely valuable and necessary forms of expertise and knowledge.

• Consideration should be given to how the institution may include local expertise and knowledge, whether through the flexible appointment of individuals to play roles in certain disputes because of the knowledge and experience they bring, or the establishment of rosters of supports for this purpose.

• Appointments should be made by First Nations through a process they establish. Consideration should be given to the use of an appointments committee made up of experts, leaders, and others, as well as formally structured application and vetting processes.

Advancing an Indigenous Institution Establishing an institution to support resolution of territorial boundary disputes is a large and complex undertaking. In many respects, it involves imagining a new type of institution that can play new types of roles related to self-determination and the recognition and implementation of Indigenous rights. This will inevitably be a new type of institution utilizing Indigenous legal orders. First Nations must define, design, and build the institution – with the involvement and support of Crown partners – on their own terms. While much of this paper has reviewed points of dialogue and consideration around elements of the institution, the starting point for the work that must be done is to confirm consensus around core foundations and principles for the institution. Once these are set, the parameters for the details of the elements of an institution will come more into focus and be easier to set. As highlighted in this paper, core principles and foundations are around First Nations control, independence, the role of Indigenous laws, customs, and traditions, and trust-building, amongst others. In terms of moving forward with the work of defining and designing an institution, there are a number of strategies and approaches First Nations may wish to consider. In particular the following are highlighted:

• First Nations in British Columbia could work to articulate and affirm consensus on core foundations and principles for a institution, including potentially, some of those

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identified in this paper. The consensus foundations and principles could then form a starting point for broader engagement with the Crown about design and development of the institution.

• First Nations in British Columbia could consider the establishment of a committee of experts in Indigenous laws and legal orders who could provide guidance and input in all stages of the development of the institution. This could include drawing on Indigenous legal experts at local post-secondary institutions (e.g. UVIC and UBC), as well as others who have specific expertise in Indigenous dispute-resolution, and governance and nation-building. Drawing on expertise from the outset of this work could provide substantial support to the deliberations and dialogue amongst First Nations leadership.

• First Nations in British Columbia could consider collectively establishing a “process roadmap” for the development of an institution. This would support participation, transparency, and building constructive momentum towards the launching of the institution. Some of the core stages in the process roadmap may include:

o Stage 1: Development of First Nations consensus foundations and principles o Stage 2: Preliminary design of proposed institution elements between First

Nations and the Crown o Stage 3: Development of First Nations consensus on institution elements o Stage 4: Development of founding instruments of institution (including, for

example, resolutions, legislation, agreements) o Stage 5: Establishment of institution

The process roadmap could include identification of the plan for province-wide and regional forums, as well as opportunities for other forms of dialogue, feedback, and consensus-building amongst First Nations about the design and development of the institution.

Finally, it is important to reiterate, as was done at the beginning of this paper, that the goal of this paper is to inform initial dialogue amongst First Nations about the design and development of the institution. Many issues and considerations that will need to be addressed have not yet been touched on, as First Nations begin to define the parameters of an institution new research will need to be done to inform how to best achieve the vision that is established.

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Bibliography

This bibliography provides a cross-section of relevant reports, studies, expert commentary, and case law regarding issues that are raised in this Paper, including ones utilized in development of this paper. It is not a comprehensive bibliography of sources relevant to questions of Indigenous legal orders, Indigenous conflict resolution, and examples of institutions around the globe. It is intended to provide a starting point for examining the research that has contributed to ideas in this Paper, and is relevant to the dialogue regarding establishing an institution. Links have been provided where works are available online.

Reports, Agreements, and Studies

Assembly of First Nations. Pursuing First Nation Self-Determination: Realizing Our Rights and Responsibilities. http://www.afn.ca/uploads/files/aga/pursuing_self- determination_aga_2011_eng%5B1%5D.pdf

British Columbia Assembly of First Nations. The BCAFN Governance Toolkit. https://bcafn.ca/about/governance-toolkit/. British Columbia Treaty Commission Agreement. https://www.solon.org/Aboriginal/Canada/bctca.html

British Columbia Treaty Commission. Recommendation 8: First Nations resolve issues related to overlapping traditional territories among themselves. http://www.bctreaty.ca/sites/default/files/BCTC-Annual-Report-2014.pdf

Calls to Action of the Truth and Reconciliation Commission. http://trc.ca/assets/pdf/Calls_to_Action_English2.pdf

Commitment Document, 2015. https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/commitment_document_work_plan__2016.pdf Commitment Document, 2018. https://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/reconciliation-other-agreements.

Discussion Paper on Instructions for Implementing the New Relationship. http://www.mwpr.ca/cgibin/show_article_attachment.cgi?ID=3644&F=implementing_the_new_relationship_0309.pdf&X=1523853872000/implementing_the_new_relationship_0309.pdf

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Law Commission of Canada. Justice Within: Indigenous Legal Traditions. http://publications.gc.ca/site/eng/9.667883/publication. Multilateral Engagement Process to Improve and Expedite Treaty Negotiations in British Columbia” endorsed by the Principals (Canada, BC and the First Nations Summit). https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/multilateral_engagement_process_for_treaty_-_june_7_2016.pdf. New Relationship Vision. https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/other-docs/new_relationship_accord.pdf Report of the British Columbia Claims Task Force. https://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations/report_british_columbia_claims_task_force_full.pdf

Royal Commission on Aboriginal Peoples. https://www.rcaanc-cirnac.gc.ca/eng/1307458586498/1534857991723

Report of the Standing Committee on Aboriginal Peoples, Senate of Canada, “A Commitment worth Preserving: Reviving the British Columbia Treaty Process”. https://sencanada.ca/content/sen/Committee/411/appa/rep/rep08jun12-e.pdf

Union of British Columbia Indian Chiefs. Discussion Paper from ‘08 Chiefs Forum: Shared Territories/Overlap Resolution Mechanism. http://www.ubcic.bc.ca/files/PDF/Doc9SharedTerritoriesOverlapResolutionMechanismFinal .pdf Union of British Columbia Indian Chiefs. Canada’s Conduct at the Specific Claims Tribunal and the Need for Reform. https://d3n8a8pro7vhmx.cloudfront.net/ubcic/mailings/2625/attachments/original/SCTnational_report_FINAL.pdf?1562621669.

Expert Commentary

Behrendt, L. (1995). Aboriginal Dispute Resolution. Sidney: The Federation Press.

Behrendt, L., and Kelly, L. (2008). Resolving Indigenous Disputes: Land Conflict and Beyond. Sidney: The Federation Press.

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Bell, C., and Kahane, D. (Eds.). (2004) Intercultural Dispute Resolution in Aboriginal Contexts. Vancouver: UBC Press. Borrows, John. (2006). Indigenous Legal Traditions in Canada. Law Commission of Canada. Borrows, John. (2016). Freedom and Indigenous Constitutionalism. Toronto: University of Toronto Press. Borrows, John. (2016). “Legislation and Indigenous Rights”, in Patrick Macklem and Douglas Sanderson eds., Section 35 @ 25 Toronto: University of Toronto Press. Borrows, John. (2017). “Indigenous Legal Systems and Governance: Eliminating Pre and Post-Contact Distinctions in Canadian Constitutional Law” in Nathalie Des Rosiers, Patrick Macklem, Peter Oliver., eds. The Oxford Handbook of the Canadian Constitution. Oxford: Oxford University Press. Browne, Murray. (2009). “Discussion Paper from ’09 CBA National Aboriginal Law Conference: Negotiating Protocol Agreements for Treaty Overlap Areas”. Victoria, BC: CBA. Chartrand, Lisa. (2005). “Accommodating Indigenous Legal Traditions”. https://www.indigenousbar.ca/pdf/Indigenous%20Legal%20Traditions.pdf

Coyle, Michael. (2009). “ADR Processes and Indigenous Rights: A Comparative Analysis of Australia, Canada and New Zealand”. In B. Richardson, S. Imai, & K. McNeil (Eds.), Indigenous Peoples and the Law: Comparative and Critical Perspectives. Oxford and Portland: Hart Publishing.

Danesh, Roshan and Dickson, Jessica. (2015). “Alternative Dispute Resolution and Aboriginal-Crown Reconciliation in Canada”. https://e-archivo.uc3m.es/bitstream/handle/10016/20429/contemporary_2015.pdf?sequence=3&isAllowed=y.

Devlin, Christopher and Thielmann, Tim. (2014). “Overlapping Claims: In Search of ‘A Solid Constitutional Base’”. http://www.dgwlaw.ca/wp-content/uploads/2014/12/Overlapping_Claims.pdf

Dickson, Jessica. (2012). “Addressing Disputes Between First Nations: An Exploration of the Indigenous Legal Lodge”. https://pdfs.semanticscholar.org/c166/3beb903a2b9397f25682ccf56614a30def15.pdf

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Dunnigan, C. and Price, R.. (1995). Toward an Understanding of Aboriginal Peacemaking. Victoria: UVic Institute for Dispute Resolution.

Kahane, David. (2003). “Dispute Resolution and the Politics of Cultural Generalization.” Negotiation Journal, January, 27. Isic, E. (2018). “Addressing Overlapping Territorial Disputes Amongst First Nations”. https://pdfs.semanticscholar.org/d9fe/0b15c0e96661b2a7ee1451e57c5dfea74eb9.pdf

LeBaron Duryea, M., and Potts, J. (1993). “Story and Legend: Powerful Tools for Conflict Resolution”. Mediation Quarterly , 10 (4), 387-395. Lederach, John Paul. (1995). Preparing for Peace: Conflict Transformation Across Cultures. Syracuse, NY: Syracuse University Press. LeResche, D. (1996). Making Peace and Sharing Power: A National Gathering on Aboriginal Peoples & Dispute Resolution: Tradtional Governance and Peacemaking. Victoria: UVic Institute for Dispute Resolution. Napoleon, Val. (2007). “Thinking About Indigenous Legal Orders. Research Paper for the National Centre for First Nations Governance”. http://www.fngovernance.org/ncfng_research/val_napoleon.pdf

Napoleon, V. (2007). Indigenous Bar Association Annual Conference: Indigenous Legal Lodge.

Napoleon, V. (2009). “Living Together: Gitksan Legal Reasoning as a Foundation for Consent” in Jeremy Webber & Colin McLeod, eds., Challenges of Consent: Consent as the Foundation of Political Community in Indigenous/Non-Indigenous Contexts. Vancouver: UBC Press. Napoleon, V. And Friedland, H. (2015) “Gathering the Threads: Indigenous Legal Methodology”. https://www.uvic.ca/law/assets/docs/ilru/Gathering%20the%20Threads%20Lakehead%20Law%20Journal%202015%20Friedland%20Napoleon%20.pdf Osi, C. (2008-2009). “Understanding Indigenous Dispute Resolution Processes and Western Alternative Dispute Resolution: Cultivating Culturally Appropriate Methods in Lieu of Litigation”. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1473449 Sikka, N., Wong, G., and Bell, C. (2015). “Indigenous Centered Conflict Resolution Processes in Canada”. http://www.coemrp.ca/wp-content/uploads/2015/12/report-on-indigenous-centred-conflict-resolution-processes-in-canada.pdf Victor, Wenona. (2007). “Alternative Dispute Resolution (ADR) in Aboriginal Contexts: A Critical Review.” http://www.chrc- ccdp.ca/research_program_recherche/adr_red/toc_tdm-eng.aspx

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Walker, Polly. (2004). “Decolonizing Conflict Resolution: Addressing the Ontological Violence of Westernization.” https://www.jstor.org/stable/4138930?seq=1#page_scan_tab_contents

Law, Legislation, and Institutions

The Constitution Act, 1867. https://laws-lois.justice.gc.ca/eng/const/

The Constitution Act, 1982. https://laws-lois.justice.gc.ca/eng/const/

Delgamuukw v. British Columbia (SCC). https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do. British Columbia Human Rights Commission. https://engage.gov.bc.ca/govtogetherbc/impact/b-c-human-rights-commission-results/ British Columbia Human Rights Tribunal. http://www.bchrt.bc.ca British Columbia Treaty Commission. http://www.bctreaty.ca First Nations Financial Management Board. https://fnfmb.com/en/about-fmb/about-first-nations-fiscal-management-act-fma First Nations Health Council. http://fnhc.ca First Nations Tax Commission. https://fntc.ca/en/home/ International Court of Justice. https://www.icj-cij.org MediateBC. https://www.mediatebc.com/about-us. National Centre for First Nations Governance. http://www.fngovernance.org National Native Title Tribunal. http://www.nntt.gov.au/Pages/Home-Page.aspx. New Relationship Trust. https://www.newrelationshiptrust.ca. Office of the Indigenous Language Commissioner. https://www.canada.ca/en/canadian-heritage/campaigns/celebrate-indigenous-languages/legislation.html Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan (BCCA). https://www.canlii.org/en/bc/bcca/doc/2015/2015bcca154/2015bcca154.html. Specific Claims Tribunal. https://www.sct-trp.ca/hom/index_e.htm

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Tsilhqot’in Nation v. British Columbia (BCSC), https://www.bccourts.ca/jdb-txt/sc/07/17/2007bcsc1700.pdf Tsilhqot’in Nation v. British Columbia (SCC). https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do. United Nations Declaration on the Rights of Indigenous Peoples. https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf Waitangi Tribunal. https://www.waitangitribunal.govt.nz