Between justice and certainty : treaty making in modern-day British Columbia
Creators: name: Woolford, Andrew
Publisher: name: University of British Columbia
Year: 2009

description: The British Columbia Treaty Process was established in 1992 with the aim of resolving the outstanding land claims of First Nations in B.C. Since that time, two discourses have been prevalent within the treaty negotiations taking place between First Nations and the governments of Canada and British Columbia. The first, that of justice, revolves around the question of how to remedy the past injustices that were imposed on B.C.'s First Nations so as to improve their current circumstances. The second, that of certainty, asks whether this historical repair can occur without significantly disrupting the social order, and whether it can be done in a manner that provides a better future for all British Columbians. Each discourse, as it unfolds in the negotiation process, is characterized by competing visions of what justice and certainty should mean. This thesis examines the interplay between Aboriginal and non-Aboriginal visions of justice and certainty and queries: is there a space between justice and certainty in which modern treaties can be made? On the basis of interviews, fieldwork, and a document analysis of treatyrelated materials, I argue that the B.C. Treaty Process, as it currently stands, fails to provide a reliable means for the parties to negotiate 'between justice and certainty'. In particular, the procedural model on which the B.C. Treaty Process is built lacks clear substantive guidelines, leaving it susceptible to the manipulations and 'symbolic violence' of the more powerful parties - i.e. the provincial and federal governments. This has resulted in negotiations that are defined by the visions of justice and certainty forwarded by the non-Aboriginal governments, visions which prioritize the economic and political interests of business and government over a serious reckoning with the past. These 'affirmative reparations' render justice equivalent to achieving certainty in the form of clear and stable business and governance relations between Aboriginal and non-Aboriginal peoples. In opposition to this affirmative perspective, I argue that the Aboriginal and non-Aboriginal peoples, which sharply contrasts with First Nations' demands that non-Aboriginal governments provide a forthright acknowledgement of and apology for infringement on Aboriginal rights and title, significant monetary compensation and land restitution, and recognition of broad powers of Aboriginal self-governance. However, these First Nation justice demands do not meet the economic and political imperatives of neoliberal globalization, and it is on the basis of these broader societal forces that the non-Aboriginal government vision of certainty rests. For them, 'rational' and certain settlements need to be forged through treaty-making to ensure the ability of governments and businesses to operate efficiently in the global marketplace. In opposition to this affirmative perspective, I argue that the negotiation process needs to be redesigned so that the symbolic and material justice demands of First Nations form the basis for treaty-making. Unless the B.C. Treaty Process opens itself to the possibility of transformative justice contained within these demands - that is, to a justice that reconfigures symbolic, political and economic relationships between Aboriginal and non- Aboriginal peoples - the certainty desired by non-Aboriginal governments and businesses is unlikely to prevail. Indeed, the economic and political assimilation that is attempted through affirmative repair is more likely to lead to future conflict than to the trust and mutual respect between Aboriginal and non-Aboriginal societies necessary for certainty to be realized.