Reclaiming Indigenous Governance: Reflections and Insights From

RECLAIMING INDIGENOUS GOVERNANCE

Edited by WILLIAM NIKOLAKIS,

STEPHEN CORNELL, and HARRY NELSON

Foreword by Sophie Pierre

RECLAIMING INDIGENOUS GOVERNANCE

Reections and Insights from Australia, Canada, New Zealand, and the United States e University of Arizona Press www .uapress .arizona .edu

ISBN- : - - - - (paper)

Cover design by Nicole Hayward Cover image: iStock/Alexei Derin

Publication of this book is made possible in part by support from the Native Nations Institute at the Udall Center for Studies in Public Policy at the University of Arizona, and by the proceeds of a permanent endowment created with the assistance of a Challenge Grant from the National Endowment for the Humanities, a federal agency.

Library of Congress Cataloging- in- Publication Data are available at the Library of Congress.

Printed in the United States of America ♾ is paper meets the requirements of ANSI/NISO Z .– (Permanence of Paper). CONTENTS

Foreword vii

Introduction , , 3

PART I. STRATEGIC ISSUES 1. From Rights to Governance and Back: Indigenous Political Transformations in the CANZUS States 15

2. The Shareholder Who Never Dies: The Economics of Indigenous Survival and the Development of Culturally Relevant Governance 38 ’

3. The Evolution of Indigenous Self- Governance in Canada 55

4. Ngarrindjeri Nation Building: Securing a Future as Ngarrindjeri Ruwe/Ruwar (Lands, Waters, and All Living Things) 71 , , PART II. BUILDING INSTITUTIONS 5. Ancient Spirit, Modern Mind: The Huu-ay-aht Journey Back to Self- Determination and Self- Reliance 107

6. From Little Things, Big Things Grow: Exercising Incremental Self- Governance in Australia 130

7. Whānau Ora: Building Māori Self- Determination in Aotearoa / New Zealand 155

8. Indigenous Commercial Codes: Sovereignty and International Trade Agreements 172

PART III. LANDS AND RESOURCES 9. Place of the Falling Waters: How the Salish and Kootenai Tribes Dealt with Settler Colonialism to Acquire and Name Se̓liš Ksanka Qĺispe̓ Dam 193 .

10. Natural Resources and Aboriginal Autonomy: Economic Development and the Boundaries of Indigenous Control and Engagement 228

11. Creating Space: Comanagement Considerations in Kakadu National Park 269 ’

12. Land, Public Trust, and Governance: A Nez Perce Account 296 .

Conclusion: Building Yourself and Your Community 306

Contributors Index FOREWORD

“If you can remember the taste, you can rebuild the recipe.” ere is a common, consistent theme in conversations across the Indigenous world of North America that in order to go forward, we must look backward. In order to rebuild successful governance, we have to remember what that looked like through our own cultural lens, not as “Indigenous people” but as Ktunaxa, Blackfoot, Cree, Anishinabe, and so forth. Terms like indigenize and decolonize are like ice cream; everyone has a favorite ¢avor until they taste something new. e taste that the Ktunaxa people long for is the taste of our own identity. As the original peoples of Turtle Island, we and so many others have been hidden under the blanket identities that the colonial governments covered us with. Many of us have su¤ocated, or are near death. In the forty-plus years that I have been actively involved in what is often known as Indian politics, I have been many things. I have been an Indian, a Native person, an Aboriginal person, a First Nations person, an Indigenous person . . . and these are just the “politically correct” terms. But I am Ktunaxa, a citizen of the Ktunaxa Nation. is identity lives in my heart, not on a piece of paper. e culture of the colonizers is a paper-based culture where relationships are likely to be negotiated and written down, not built in the process of being lived. e spirit of the law is forgotten and the focus is on the letter. e Ktunaxa Nation recognizes the Syilx, the Secwepemc, the Blackfoot, and VIII F OREWORD other nations with whom we have shared thousands of years of interactions. e Ktunaxa Nation recognizes its own citizens. If you can trace your Ktunaxa roots backward into the past, then you are Ktunaxa, and it does not matter what some other government says you are. When we accept the labels that are gener- alizable and portable to accommodate other governments, we chip away at our own identity. e time has come to remember, reclaim, rebuild. Remembering is rebuilding. Less than one hundred years ago, the Ktunaxa Nation was, for the most part, self-su©cient. We still lived a life that re¢ected our own understandings of the world and our long-established relations with each other. ere are tribal citizens alive today who can still recall those days with clarity and purpose. We want to get back to that, but sometimes we get in our own way. Over the years, elders have acknowledged that it is often our own internal struggles that hold us back in our ªght to rebuild systems of our own for governing our lands and communities. e Canadian courts and the governments of Canada increasingly recognize our rights, but the hard part is the internal e¤ort to put meaning to those rights, to give them practical e¤ect on the ground. at requires leadership. Politics and leadership are not the same. Today we need fewer politicians and more leaders. Many of the people who are actively involved today in Ktunaxa nation rebuilding are descendants of Ktunaxa hereditary chiefs, of men and women who knew how to be leaders. ose nations that have replaced politics with leadership and who are remembering what self-government is in terms of cultural beliefs and practices—they are the ones most likely to win the support of their citizens. ey are the ones most likely to advance in spite of the uncer- tainties of the broader environment that we have to live in. To me, nation building or rebuilding is about nations reclaiming their identities. It is about nations reclaiming their own version of the relationship between individual and community. Call it citizenship or whatever you like, but that relationship is rooted in what we share—our culture, our obligations to each other, the understanding of our roles in our communities, our roots in the past. Nation rebuilding is about getting out from under the Indian Act in Canada or, in another country, getting out from under whatever colonial mechanism keeps you accountable to someone else’s idea of who you are or who you should be. When the Ktunaxa Nation entered into the British Columbia Treaty process in , we decided that our purpose was to create our own government, something that re¢ected our people’s vision and could bring it into being. We F OREWORD I X wanted internal recognition of the authority that the nation has by virtue of inherent right, and then to build culturally legitimate institutions that could e¤ectively exercise that right and represent us in interactions with the other governments around us. Self-determination through self-government was our ªrst priority; if that led to a treaty with the other two levels of government, that would be good too. For two years we held meetings, most of them in our own citizens’ homes, sitting at the kitchen table, talking about what our people wanted, searching for that vision. Our people focused in particular on four things: our land, our language and culture, our people, and our government. ose were the things we wanted to be in charge of and to take care of. We talked a lot to the young people during those two years, because we knew they would have to live with whatever we created. ere was one young woman on our sta¤ who met often with young people to talk about the future of the nation. One of the things that came out of her conversations was an idea of the nation as a kind of a tipi—a wide circle of multiple poles that meet together at the top. Each pole was one element or activity that our young people felt was important for the nation, a critical piece of the picture. A tipi is a strong structure because of that circle of poles, their feet on the ground, joined at the top. It is a sturdy structure that can protect you. As you strengthen each pole, you strengthen the structure. In the course of conversations like those, we began sharing our ideas and rebuilding our nation. We began building a government of our own, a government of laws. e concept of law is not foreign to the Ktunaxa; living within the natural law that was given to the Ktunaxa by the Creator is at the core of our being. e Ktunaxa creation story is the source of the Ktunaxa Nation’s responsibility; Ktunaxa citizens were entrusted with the responsibility to act as stewards within their homelands. e Creator owns the world and we are to care for it accordingly. e Ktunaxa creation story has been handed down for thousands of years and is a comprehensive, multilayered accounting of how human beings, including the Ktunaxa, came to be. It describes relationships. e Ktunaxa language describes concepts of how humans relate to our environments: social, spiritual, and physical. ese relationships are what we would describe as our culture. e concepts embedded in the Ktunaxa language inform us of how we are to behave, how we are to govern ourselves. is shared language, our stories, our history, and our concepts of relationship make us unique. We live and act within the natural law, developing structures, systems, policies, procedures . . . X F OREWORD governing. e Ktunaxa Nation has created a shared vision of our future, and our citizens are collaboratively working toward it. is strategic approach to nation rebuilding has relieved our leadership from having to be politically reactive. ey can act on behalf of the vision. at has given the Ktunaxa government and Ktunaxa citizens purpose and legitimacy. ese are pieces of the Ktunaxa Nation’s story, but there are other stories in this book, stories of nations and communities in di¤erent parts of the world engaged in a similar e¤ort to rebuild, to improve the welfare of their peoples, and to take responsibility for their futures. Some of the stories here are like our story; some are very di¤erent. Some are about Indigenous peoples achieving their goals, while others are about the di©culties involved and the frustration that many of us often feel. And there are important discussions here, too, and analyses of the factors involved, the opportunities we face, and some of the strategies available to us. All of this has value for our peoples. We have to recognize that we are not the same, but we also have to recognize that many of us are trying to accomplish the same things and have to deal with many of the same challenges. We are di¤erent peoples, but we can learn from each other—from our successes and our mistakes. My mother used to say, “Knowledge that is not shared has no power.” is book is about sharing knowledge and gaining power, about looking backward and forward at the same time, about governing for ourselves.

?is nini ku qalwiynala (is is what is in our hearts)

Taxa, Hereditary Chief Sophie Pierre with Governance Director Gwen Phillips RECLAIMING INDIGENOUS GOVERNANCE

INTRODUCTION

ª«¬¬«®¯ °«±²¬®±«³, ³ ´µ¶·µ° ¸²¹° µ¬¬, ®°º · ®¹¹» °µ¬³²°

NDIGENOUS PEOPLES have governed themselves since time immemorial. Long before Europeans arrived on the North American continent or in Ithe Southwest Paciªc—in what are now often referred to as the CANZUS countries or states (Canada, Australia, Aotearoa / New Zealand, and the United States of America)—the Indigenous peoples in those regions made law, made collective decisions, settled disputes among themselves, and established rules by which to organize their lives and communities. ere were laws that governed their ways of interacting with each other, with other peoples, and with the natural and spirit worlds. ey orchestrated the use of resources, provisioned their families, organized trade, educated their children, moved in groups across lands and seas, and made war and peace. rough collective e¤ort they sustained themselves—physically, socially, and spiritually—for generations. European colonialism brought much of that activity to an end. e colonizers, unfamiliar with ways so di¤erent from their own, were often skeptical that Indigenous peoples governed at all, but even if they did, the imperatives of colonization left little time or inclination for understanding. As the colonizing states expanded their control over space, they gradually dismantled, violently suppressed, or simply ignored Indigenous governing structures, replacing many of them with the administrative apparatuses of colonial power. ¼ I NTRODUCTION

In the latter half of the twentieth century, the tide of colonial control began to turn as a politics of Indigenous resistance and revitalization gained increased traction in all four countries. By century’s end, and much earlier in some cases, Indigenous peoples in all four countries were fully engaged not only in reclaiming the right to govern themselves, their lands, and their a¤airs but in various ways were putting that right—recognized or not—to work on behalf of their own visions of the future. eir e¤orts are the subject of this book. e book originated from a symposium organized by the Peter Wall Institute at the University of British Columbia. e symposium brought together a small group of Indigenous and non-Indigenous practitioners and researchers to discuss some of the insights, challenges, and lessons of the last few decades of Indigenous governance initiatives in the CANZUS states. Some of the authors included in this book were participants in that symposium; others subsequently agreed to provide chapters relevant to the symposium’s themes. In focusing on these four countries, we do not mean to downplay Indigenous governance projects elsewhere, but the CANZUS states constitute a distinctive comparative set. All four are primarily English settler states that share largely English legal and political heritages. All four are liberal democracies and highly developed economically. In these countries, as in many other parts of the world, European colonization proceeded through and produced extraordinary Indige- nous losses of lives and lands and the systematic, often violent subordination of Indigenous peoples and cultures to colonial agendas. In recent decades, however, not only have Indigenous political activism and demands in these countries challenged the old assumptions but, along with hard-won decisions in national courts, legislatures, and international venues, they have altered the policy dynamic. It would be too much to suggest that the fundamental distribution of power has changed, but since the s Indigenous peoples in all four countries have been shifting much of their attention away from what central governments do (or do not do) and toward their own, self-determined tasks, including the task of governing. As a result, central governments have lost much of their once taken-for-granted control of the policy debate and have found themselves increasingly having to respond to Indigenous initiatives and changed Indigenous facts-on-the-ground. It may be that similar developments are underway under other circumstances in other countries that we know less well. Perhaps some of the accounts o¤ered here will resonate with Indigenous communities elsewhere, struggling in their own ways for the right not only to govern themselves but to be themselves in the contemporary world. I NTRODUCTION ½

What we have in this book is a diverse set of perspectives on a more or less common set of themes. Despite some signiªcant legal and political di¤erences among the CANZUS states, the challenges Indigenous peoples face within those states tend to echo each other: the importance of strategic clarity in preventing Indigenous governance from inadvertently replicating the assimilation- ism of colonial control; the role that Indigenous cultural institutions can play in governance and collective action; the role of economic development in free- ing Indigenous nations from crippling dependence on external resources and decision-makers; decisions about the forms that economic development should take; the centrality of land and animal relationships to Indigenous governance; and the di©culty of expanding Indigenous jurisdiction in the face of the constraints, assumptions, and policy reversals of central governments. Behind both the symposium and this book lies our belief that as Indigenous peoples in the CANZUS states address these and related themes, they can learn from each other in a growing international network of Indigenous innovation. At the same time, the book o¤ers no blueprint either for the achievement of governing power or for how it should be put to use; nor do the authors share a single view of what Indigenous governance should look like or how it should be accomplished. Our objective is simpler: to bring together experiences, re¢ections, and insights both from practitioners who are confronting the challenges of governing and from researchers who are trying to understand what Indigenous governing involves in these contexts. e result is a mix of the personal, the practical, and the analytical, often in a single chapter. What emerges is the enormity of the Indigenous governance task, the creativity and agency of Indigenous peoples determined to pursue their own objectives, and the diversity of the paths they take. As several chapters also suggest, not all the obstacles these peoples face are to be found in the structures and limits of external control. Some lurk as well in the legacies colonialism has left within Indigenous communities and nations: its e¤ects on their own thinking, relationships, institutions, and imaginations. And some are inherent in the tasks Indigenous peoples have undertaken; capable governance everywhere is hard work. ese are human communities searching for e¤ective ways to organize themselves and act on behalf of their own aspirations. Being nations within nations may complicate that e¤ort, but the world provides ample daily evidence that the process is nowhere simple. ere is another underlying theme, apparent in several of these chapters: the fragility of Indigenous peoples’ gains. Indigenous governance in the CANZUS ¾ I NTRODUCTION countries is part of an ongoing relationship between Indigenous peoples and settler states. It is a vigorously contested relationship that ebbs and ¢ows; hard-won gains can be swiftly lost. But Indigenous peoples are no strangers to setbacks. Both the growing movement for Indigenous governance and its achievements provide ample evidence of resilience and resourcefulness—and of the determination of Indigenous peoples to take back, for future generations, control of their own destinies.

THE CHAPTERS

e chapters in this book are multidisciplinary, and we have organized these into three clusters: strategic issues, building institutions, and lands and resources. e boundaries among these clusters are by no means bright lines, and some chapters range across all three. Within this book are four chapters from Canada (as well as a foreword by Sophie Pierre from the Ktunaxa Nation), three from Australia, and two chapters each from Aotearoa / New Zealand and the United States. In addition, an introductory chapter and a concluding one consider patterns in Indigenous governance across the CANZUS states. Stephen Cornell’s chapter, “From Rights to Governance and Back: Indig- enous Political Transformations in the CANZUS States,” captures a central theme of the book. Cornell argues that in all four countries, many Indigenous nations are transitioning from the battle for rights and recognition—sometimes won, sometimes lost—to the challenge of governance. is transition shifts the focus from what central governments can or should do to a focus on what Indigenous nations can do for themselves. e governance challenge requires di¤erent approaches and skills from those of the rights battle, and it is leading to innovative Indigenous models of governance. Using these models, some nations are also building track records in self-government that in turn support the battle for rights. Following Cornell’s chapter, the remaining chapters in part I raise some strategic issues that Indigenous peoples face as they take up the governance challenge. Māori elder Sir Tipene O’Regan provides a slightly modiªed version of his Vincent Lingiari Memorial Address, given at Charles Darwin University in Australia. “ e Shareholder Who Never Dies: e Economics of Indigenous Survival and the Development of Culturally Relevant Gover- nance” traces the recent history of his own people, the Ngāi Tahu, on the South I NTRODUCTION ¿

Island of Aotearoa / New Zealand, and the path of grievance, contention, and resolution they have traveled. O’Regan draws on his lived Ngāi Tahu experience and re¢ects on the current economic, political, and social success of Ngāi Tahu to raise some critical points about the importance of strategic purpose and economic development for Indigenous peoples moving forward. e key question he believes his iwi (tribal nation) and other Indigenous nations have to answer is: “What do we want to be as a people?” Part of the task is to gain—and sustain— clarity on that question and then organize and act in support of it over time. In “ e Evolution of Indigenous Self-Governance in Canada,” William Nikolakis reviews the state of self-governance in Canada, documenting how it has evolved through negotiations between the Crown and First Nations. Within this negotiated dynamic, Indigenous Canadians are selecting among three strategies: maintaining the status quo (remaining with the Indian Act); adopting incremental governance pathways, such as electoral or ªscal and land management reforms; or choosing transformative pathways, which includes either negotiating self-governance with Canada through comprehensive claims, Aboriginal title, and other self-governance tables or simply adopting a “just- do-it” approach, where First Nations design and implement their own governing institutions across matters important to them, and without formal support from Canada. ese strategies have varying outcomes, and empirical evidence suggests that choosing transformative pathways can help rebuild interpersonal, social, and political trust within First Nations, with positive beneªts for collective action (see Nikolakis and Nelson ). Steve Hemming, Daryle Rigney, and Shaun Berg explore the nation- building activities of the Ngarrindjeri people in South Australia. eir chapter, “Ngarrindjeri Nation Building: Securing a Future as Ngarrindjeri Ruwe/ Ruwar (Lands, Waters, and All Living ings),” details how private contract law is being used as a novel approach for negotiating with the Crown, providing greater ¢exibility for the parties on their political commitments and responsibilities, in lieu of broader e¤orts to resolve a treaty. Advancing Ngarrindjeri Ruwe/ Ruwar is an important aim for the Ngarrindjeri Nation, particularly because the connection between healthy country and healthy people is fundamental to the Ngarrindjeri world view. Hemming, Rigney, and Berg provide a narrative of Ngarrindjeri resistance and strategic transformation over the last two decades, framing it in part as a process of “identiªcation, organization, and action,” where new forms of organization and engagement with the Crown have helped reori- ent power relations. À I NTRODUCTION

e second group of chapters is focused on building institutions and the work that is involved in doing this. is section begins with Angela Wesley’s account of her own nation’s e¤orts to rebuild its institutions. Her chapter, “Ancient Spirit, Modern Mind: e Huu-ay-aht Journey Back to Self-Determination and Self-Reliance,” draws on Wesley’s personal experience on institution building with her nation, Huu-ay-aht, on the west coast of Vancouver Island, British Columbia, Canada. Huu-ay-aht concluded a treaty with Canada in and through this process created a constitution. Building a constitution was highly participatory, engaging citizens to think about how Huu-ay-aht should govern themselves, and through this a living constitution was produced that prescribes how the Huu-ay-aht people intend to govern themselves and their lands. An important focus in constitution building was rebuilding the hereditary governance institutions, the Ha’wiih, and integrating these into modern governance. Wesley re¢ects that the participatory creation of the constitution and discussion about the Haawih created an important social foundation for nation building and ensuring that contemporary Huu-ay-aht governance will have its roots in the Huu-ay-aht people. Diane Smith’s chapter, “From Little ings, Big ings Grow: Exercising Incremental Self-Governance in Australia,” documents how “grassroots” e¤orts to grow self-governance are e¤ective, even where self-governance is contested by the state. Smith’s chapter draws on case studies to illuminate the collective e¤orts of Indigenous communities to meet their local and regional needs, which are both intercultural and customized for speciªc objectives (like service delivery). ese collective e¤orts are incremental reforms for rebuilding Indigenous governance, from the scale of individual communities to regional bodies, and Smith concludes that in the constrained Australian context, secure rights are not a precondition for e¤ective self-governance; rather, incremental social learning, cooperation, and creativity can sometimes accomplish at least some of what the battle for rights has yet to achieve. Sacha McMeeking emphasizes the role of Whānau Ora (or family well- being) in rebuilding Māori governance. In her chapter, “Whānau Ora: Building Māori Self-Determination in Aotearoa / New Zealand,” she distinguishes two primary recent drivers for Māori self-determination. One is treaty settlements that restore some economic resources to Māori iwi, or tribes, and facilitates the development of tribal or nation-level governing institutions. e other factor— and the subject of her chapter—is Whānau Ora, a set of devolutionary initiatives “anchored in whānau (family) self-determination” and focused on building I NTRODUCTION Á capacity and well-being at the family or community level. While the emphasis in New Zealand has been on catalyzing self-governance through treaty settlements, she describes Whānau Ora in detail and concludes that it is an essential part of the path to self-determination, designed to transform the lived realities of Māori communities. In their chapter, “Indigenous Commercial Codes: Sovereignty and Interna- tional Trade Agreements,” Douglas Sanderson and Bradon Willms consider the potential for commercial codes as vehicles for self-determination and self- government by First Nations in Canada. ey argue that First Nations can use commercial codes to create their own rules for doing business on reserve or treaty lands, placing Indigenous concerns at the forefront of development, nesting commercial relationships in Indigenous development strategies, and employing local mechanisms for dispute resolution to address con¢icts. is potential, however, is being undermined by state commitments in bilateral and multilateral trade agreements that supersede Indigenous commercial codes and can become obstacles to Indigenous self-government. While Indigenous nations are becoming signiªcant players in international trade through the reclaiming of their lands and resources, as well as through careful assertions of their own commercial law, at the same time they are encountering the limits on such assertions posed by global policies and supranational agreements. e third group of chapters is focused on lands and resources. ese chapters show how greater access to lands and resources both drives and is shaped by self-governance. In Ronald L. Trosper’s chapter, “Place of the Falling Waters: How the Salish and Kootenai Tribes Dealt with Settler Colonialism to Acquire and Name Se’liš Ksanka Qĺispe’ Dam,” he provides a rich narrative of the Con- federated Salish and Kootenai Tribes (CSKT) of the Flathead Reservation in Montana and reclaiming what is now known as the Se’liš Ksanka Qĺispe’ Dam in . Built by the U.S. government on CSKT lands but never under their tribal control, the dam became a major symbol and driver in the CSKT’s e¤orts to reverse some of the e¤ects of colonialism and reclaim control not only of their lands but of their future. Today, fully owned and renamed by CSKT as the Se’liš Ksanka Qĺispe’ Dam, the dam now generates millions of dollars in revenues that support social, ecological, and economic initiatives for the tribal nation. In “Natural Resources and Aboriginal Autonomy: Economic Devel- opment and the Boundaries of Indigenous Control and Engagement,” Ken Coates and Carin Holroyd analyze impact beneªt agreements (IBAs) in Canada, and they show how these agreements can spur institution building ÂÃ I NTRODUCTION and self-governance. While these IBAs are private agreements between First Nations and companies, they can provide the resources and space to build institutions and pursue self-governance. However, Coates and Holroyd caution that while IBAs can provide revenues and jobs for Indigenous communities, the natural resources involved are often nonrenewables that will one day be exhausted. In rural and remote regions of Canada, the challenge is to use this resource-development opportunity to create capable systems of governance that can achieve a transition to an economy that is not dependent on those resources. In “Creating Space: Comanagement Considerations in Kakadu National Park,” Justin O’Brien examines the dynamics of comanagement in Kakadu National Park in northern Australia, the world’s longest running comanagement arrangement over a protected area between the state and Indigenous peoples. Comanagement has been touted as a way to build the capacity of Indigenous peoples through engagement with the state as well as to give expression to the self-governance ambitions of Indigenous peoples. O’Brien argues, however, that in practice these outcomes have not been met in Kakadu. Comanagement in Kakadu is characterized by the “territory of di¤erence” between Indigenous peoples, or Bininj, and the Australian polity, where Eurocentric visions of governance and “good governance” are imposed on Bininj, in e¤ect rendering them powerless in the comanagement arrangement. ere are cultural divides in this territory of di¤erence that are di©cult to bridge and can undermine intercultural collective action and state-sponsored self-governance initiatives. O’Brien concludes that what is needed is governance models that bridge the intercultural space as well as greater autonomy for Bininj in land management and a reori- ented engagement with the state. In the ªnal chapter in this section, “Land, Public Trust, and Governance: A Nez Perce Account,” Jaime A. Pinkham draws on his experience as a tribal councillor and forester to explore complex relationships among the Nez Perce people, colonizers, and the natural world, viewed in part through the lens of governance. Pinkham touches on the history of how the Nez Perce lost their lands to the United States but emphasizes the continuity of Nez Perce engagement with the natural world, drawing on the controversial s reintroduction of the gray wolf to the state of Idaho, an e¤ort that the Nez Perce successfully managed when the state of Idaho refused. is reintroduction e¤ort had wide-ranging ripple e¤ects on Nez Perce governance and community, and brought into focus the pillars of Nez Perce well-being: kinship, language and culture, governance, and the relationship to the natural world—pillars critical to the Nez Perce future. I NTRODUCTION ÂÂ

Garry Merkel concludes the book with his chapter, “Building Yourself and Your Community,” where he weaves together his own lived and professional experience with his re¢ections on the chapters in this book. Merkel emphasizes that self-governance starts with the individual and then builds up to the collective. He draws on the various chapters in the book to emphasize four factors in the success of governance, and ultimately the success of Indigenous societies. e ªrst is personal and collective discipline. Second is incremental institution building, through a “learning by doing” approach. ird is mobilizing around a nation-building narrative. Fourth is taking a holistic perspective on success. Rebuilding the institutions of self-governance means navigating uncharted waters—strong governing institutions underlie much of the resilience that communities need if they are to deal e¤ectively with the challenges of the contemporary world, and remain true to themselves.

SUMMARY

ese chapters o¤er a diverse set of perspectives on the e¤orts of Indigenous peoples to reclaim governance in the CANZUS states. ese nations are addressing strategic issues that have to do with identity and long-term goals. ey are working to bring their own values and worldviews into their governance structures and practices, often under di©cult, even hostile, conditions. ey are exploring the mechanics of building institutions capable not only of expressing their values but of achieving their goals. ey are restoring relationships with lands and resources that are central to community identity and well- being but that also o¤er opportunities to engage in a vibrant natural resources economy. ese issues are interdependent—decisions or actions in one area a¤ect the others, re¢ecting the dynamic nature of Indigenous governance as it adjusts to a complex and globalized world. ere are other recurrent themes in the book: the importance not so much of governing as of governing in the service of core values and intergenerational purpose, and sometimes the di©culty of doing so; cross-country variation among the CANZUS states, leading to frustration, incrementalism, and creativity in Australia compared to the advantages of more substantial, if fragile, Indigenous rights regimes in Canada and the United States; the necessity and power of community education and engagement in governmental strategy and design; and the e¤ective use by some Indigenous nations of non-Indigenous tools to pursue their own purposes. ÂÄ I NTRODUCTION

Finally, our intent as editors of this book has been to seek a more comprehensive overview of Indigenous governance in the CANZUS states by bringing together in one volume the perspectives of practitioners and academics. Our hope is that through the interaction and collaboration of the practical and the theoretical, the rights of Indigenous peoples and the practical exercise of those rights can be strengthened and advanced.

REFERENCE

Nikolakis, W., and H. Nelson. . “Trust, Institutions, and Indigenous Self‐Gover- nance: An Exploratory Study.” Governance (): – . PART I

STRATEGIC ISSUES

FROM RIGHTS TO GOVERNANCE AND BACK

Indigenous Political Transformations in the CANZUS States

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DOZEN YEARS ago, Satsan (Herb George), hereditary chief of the Frog Clan of the Wet’suet’en Nation, wrote about the challenges facing A Indigenous nations. His focus was governance: the e¤ort by Native nations to rebuild their governments, restore control of their lands and a¤airs, and make “our own new stories.” We have done enough talking, he suggested, “now we need to get on with it” (Satsan , – ). With those words, Satsan captured the changing arc of the Indigenous ªght for self-determination and self-government. Over the last three decades, at least in the so-called CANZUS countries (Canada, Australia, Aotearoa / New Zealand, and the United States), much of Indigenous politics has been transformed. For most of the twentieth century, those politics in all four countries focused primarily on recognition and rights: recognition by central governments of Indigenous peoples as self-determining political entities and the acknowledgment of Indigenous rights to their lands and related resources, to self- government, to the maintenance of cultural practices, and more. Much of this was a politics of resistance. Indigenous peoples demanded change in the attitudes, policies, and actions of CANZUS governments. ey did so in marches, site occupations, and blockades; with intensive lobbying; and with a host of legal cases that often reached the highest courts of these countries. A central objective was to force CANZUS governments to abandon fundamentally Â¾ S TEPHEN C ORNELL assimilationist policy agendas and support Indigenous visions of their desired relations with settler states. While that e¤ort was more successful in some cases than in others, it altered the political and legal landscape in all four countries. In the last two decades of the twentieth century, another politics began to gain prominence alongside resistance: what might be called an Indigenous politics of self-government (Cornell ). at politics is still emerging, albeit to di¤erent degrees and in di¤erent ways across the CANZUS states. e focus on central government attitudes, policies, and actions has by no means disappeared: major rights battles remain to be fought; gains already made have to be defended against resurgent opposition; and—particularly in Australia and Canada—the ªght for recognition and rights still dominates much of Indigenous action. But a lot of political energy has been moving past the rights and recognition agenda to a primary concern with how to enact rights, how to use them—including rights not yet recognized by settler states. In then UN Special Rapporteur on the rights of Indigenous peoples James Anaya referred to this emerging era as “the implementation phase” of self-determination—putting it to work—and it is engaging a growing number of Indigenous peoples.· While this change has been most apparent in North America, there is growing evidence of it in Aotearoa / New Zealand and, at a more nascent stage, in Australia as well. is chapter brie¢y reviews this development in the four CANZUS countries and then turns to its e¤ects on Indigenous politics. e logic of the comparative scope is simple. ese four settler states have in common largely English political and legal heritages. In all four, in the aftermath of European arrivals, Indigenous peoples were systematically and often violently dispossessed of the vast bulk of their lands and subjected to tutelary and assimilationist administrative controls over their lives and a¤airs, with catastrophic consequences for those peoples. Yet in all four, many Indigenous peoples managed to survive and have been engaged in a continuing struggle to secure perceived rights and exercise substantive self-governing power in their a¤airs. But ªrst: what do I mean by these two terms, self-determination and self- government? e available deªnitions are multiple, and some di¤ering conceptions appear in this book. But in the argument I am making here, Indigenous self-determination refers to the right of Indigenous peoples—and I refer here speciªcally to peoples, to collectives—to govern their own a¤airs according to their own values and designs and to determine their own futures. Obviously both nature and extent of that right vary; while Indigenous peoples in the CANZUS F ROM R IGHTS TO G OVERNANCE AND B ACK Â¿ states have long sought to expand the scope of self-determination and secure ever greater control over their lives, the scope is broader in some cases than in others. Whatever its extent, however, to have practical e¤ect the right of self- determination has to be put to work. It has to be exercised. Rights make things possible, but without organized action they do not make much happen. is is the realm of governance. By Indigenous self-governance I refer here to the enactment of self-determination through the exercise of governing power: Indigenous peoples making and implementing collective decisions according to their own rules, values, and, ideally, law. is is a matter of degree; after all, these are nations within nations, limited to one extent or another by the laws of the nations they are within—that is, by recognized rights. But the ability to assert their own rules, expand the reach of their own law, and place their own values at the center of decision-making: these are measures of the degree to which they can move toward self-government and away from self-administration or self-management, both of which may accord Indigenous peoples some decision-making power but do so within rules set by others—typically central governments—and in the service of goals those others have set for Indigenous peoples.¸ While their success varies, many Indigenous peoples in the CANZUS states seek not only to increase their decision-making power but to do so according to rules of their own making and on behalf of their own values and goals. In talking about governance, I also wish to resist the e¤ort, so often apparent in central government policies toward Indigenous peoples in the CANZUS states, to idealize the Eurocentric “good governance” mantra common in international development circles in recent decades. e principles often embedded in various versions of “good governance” are generally laudable—for example, the rule of law, fairness, governmental e¤ectiveness, governmental accountability— and a number of them are amply apparent in Indigenous governance traditions. But we should make no assumption that capable Indigenous governance will conform to that mantra’s boilerplate or to models of governance derived from contemporary liberal democracies. What Indigenous legal scholar Angela Riley calls “‘good Native governance’ . . . does not require that Indian nations either fully depart from or emulate the developed West” (a, ; emphasis added). As she points out, for example, “A number of tribes in the United States do not select their leaders through direct democracy, but nevertheless maintain functioning, capable governments” (). In short, capable, Indigenously designed governments may or may not resemble the ideal put forward in the good governance discourse.º ÂÀ S TEPHEN C ORNELL

PATTERNS OF CHANGE

ere are both commonalities and di¤erences in the patterns of change across the CANZUS states. Once Indigenous resistance to invasion had been overcome, with enormous losses of Indigenous lives and lands, both law and policy in all four countries became fundamentally assimilationist. Twentieth-century e¤orts to detribalize Indigenous peoples proceeded through such frequently coercive, sometimes violent policies as residential schooling, the suppression of cultures, and the individualization of tribal lands. Where collective organization was allowed to continue, it typically had to follow Western models of the sort prescribed, for example, by the Indian Reorganization Act in the United States and the Indian Act in Canada, thus continuing the assimilationist project through Western organizational forms imported to the tribal arena.» But in the ªnal third of the century, decades-old Indigenous resistance to central-government agendas began to gain traction. A capsule comparison risks simplifying both complexity and variation, but brief summary accounts can capture some key details.

UNITED STATES

In the United States, a sea change in what is generally known as Indian policy began to take form in the s, stimulated by Indigenous political unrest and militancy and hastened by the obvious failure of prevailing Indian policies as vehicles for improving the socioeconomic welfare of American Indians; the more general movement among minority populations for civil rights; and the desire, captured in the Lyndon Baines Johnson administration’s Great Society programs, to empower local communities (Castile ).¼ e change eventually received its most explicit formalization in the Indian Self-Determination and Education Assistance Act of , in which the U.S. Congress committed itself to an expanded form of Indigenous self-government, including “an orderly transition from Federal domination of programs for and services to Indians to e¤ective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services” (U.S. Congress , ). It seems unlikely that the federal government knew what it was letting loose when Congress passed that legislation. As the above quote clearly suggests, what the government had in mind was less tribal self-determination than tribal self-administration: American Indian nations could take over the management F ROM R IGHTS TO G OVERNANCE AND B ACK ÂÁ of programs designed for them by Washington bureaucrats (Barsh and Trosper ; Castile , ch. ).½ Be that as it may, not only did the new initiative put substantial new funds and authority in the hands of tribal governments (see, for example, Schusky ; Bee ), but a number of Indian activists and tribal leaders took the legislation at its word—self-determination—which is what they were after all along: the right of Native nations to decide for themselves how to manage their lands, communities, and lives. Some tribal leaders in particular interpreted the act as long overdue federal recognition of their right to make their own collective decisions, and they proceeded not only to articulate that right in an invigorated discourse of tribal sovereignty but also to put it into action, moving forcefully over the latter part of the s and the early s to take control not only of federal programs but of as much of what happened on their lands as they could, often using creative strategies to do so (see, for example, Cornell ; Nagel ; Steinman , ; Evans ). And they made headway. By the end of the s, American Indian nations were becoming primary decision-makers in a great deal of what happens on their lands and were working to further expand their e¤ective jurisdiction (Kalt and Cornell ; Pevar ). Over the next two decades, as tribes increasingly put themselves in the driver’s seat in their a¤airs and in their relations with the federal government, much of their attention began to shift from claiming power to enacting it in practical decision-making: designing their own governing institutions, developing their own policies, passing and enforcing laws, operating courts of signiªcant civil and some criminal jurisdiction, regulating land and environmental matters, using taxing powers, determining tribal citizenship, and running their own businesses and, in some cases, their own health programs and schools.¾ Not all such initiatives are equally successful. e learning curves are steep, the resources to support self-government are generally slim, and tribes are as susceptible to mistakes and institutional dysfunction as other polities are. None- theless, as a practical matter, American Indian nations today have e¤ectively reclaimed a signiªcant degree of self-governing power. Much of their political energy now is devoted to the challenges accompanying that power.

CANADA

A similar shift has been taking place in Canada, although the change has come less through legislative than judicial action. Nationwide political activism again was involved, especially in the aftermath of the infamous “white paper” of the ÄÃ S TEPHEN C ORNELL

Pierre Trudeau government in conªrming that government policy sought the complete assimilation of Canada’s Aboriginal peoples into the Canadian mainstream. But much of the Indigenous political movement was organized locally and over decades as Native peoples tried, through on-the-ground protests and appeals to parliament and the courts, to protect their lands from continuing encroachment and make their claims for self-governing power in the face of dogged resistance by Commonwealth and provincial governments.¿ One result of these e¤orts was a remarkable series of decisions in the Supreme Court of Canada, beginning with the complex and divided Calder decision in , in which six of seven judges concluded that “Aboriginal occupation amounted to a form of title that was enforceable at common law, whether the government acknowledged this or not” (Foster /, ). It continued through, among others, Sparrow (), Delgamuukw (), Haida Nation (), Taku River Tlingit (), and Tsilhqot’in (). ese cases not only conªrmed Aboriginal title to lands but acknowledged, if sometimes only implicitly, an Indigenous right to self-governance over those lands (see the discussion in McNeil ). ey also established the principle that Native nations had to be consulted and their interests accommodated in decisions that other governments made regarding those lands. is recognition began to move some signiªcant decision-making power into Indigenous hands, putting pressure on First Nations to increase their own governance capacities. As Satsan (Herb George), founder of the National Cen- tre for First Nations Governance and quoted at the start of this chapter, put it in , “If we have the right to use the land in our own way, we need to be organized to do it. When the [Canadian or provincial government] has to consult with us, we have to be organized and capable of consulting. We have to know what we want and be able to make our vision e¤ective. . . . is is a governance issue.”Â As they have tried to address this issue, however, First Nations in Canada have found themselves often crippled by the Indian Act, the legislation that was designed to control and assimilate Indigenous peoples, keeping them on the Canadian “road to homogeneity” (Cairns , ). As Indigenous legal scholar John Borrows points out, the Indian Act “imposed a normative structure on Aboriginal communities that was largely inconsistent with their own legal and political systems” (, ; see also McHugh , ). According to Frances Abele, even within mainstream governance traditions the act is “a legislative fossil” that o¤ers little room for such things as “collegial decision-making and F ROM R IGHTS TO G OVERNANCE AND B ACK ÄÂ policy development, policy research, human resource development, management accounting systems, and citizen engagement” (, ). In the last couple of decades, growing numbers of First Nations have recognized these and other problems with the Indian Act and have begun to invest time and energy in rethinking how they govern themselves, rejecting nineteenth-century prescriptions and proscriptions in search of governance structures and processes that better re¢ect their own normative orders and are capable of e¤ective decision-making in contemporary times. Some have moved to adopt constitutions or other governing instruments, ignoring the Indian Act and looking to their own customary law or traditions for guidance or ideas, or have taken advantage of opportunities such as the British Columbia Treaty Process to create governments of their own design.·Ã While rights issues remain prominent in the courts of Canada and in national political activism, both the conversation about governance and actions to implement e¤ective self-governing power are vibrant and growing within and among First Nations.

AOTEAROA / NEW ZEALAND

In Aotearoa / New Zealand, as in North America, much of twentieth-century Indigenous political resistance involved supratribal mobilization, often around local con¢icts, with Māori protesting land and other resource expropriations, racial discrimination, challenges to Māori culture, and other issues (Walker ). As the century proceeded, that resistance also increasingly involved forms of proactive Indigenous co-optation in which Māori took advantage of externally imposed organizational models to pursue their own collective ends, including the preservation of whakapapa (genealogy), hapuu (subtribe), and iwi (tribe) as fundamental building blocks of Māori society.·· By the early s, these e¤orts were having an impact. Among other things, a newly elected New Zealand government, responding to Māori political mobilization, began to listen to Māori aspirations. In the Waitangi Tribunal was established to hear contemporary Māori claims against the Crown under the Treaty of Waitangi; and in Māori led a massive march from the northern tip of the North Island to the capital of Wellington, at the island’s southern end, against further land losses and on behalf of tribal self-determination and other goals, while other forms of Māori protest kept pressure on the government to rethink its policies and positions. e s saw further developments, including a more expansive brief for the Waitangi Tribunal, allowing ÄÄ S TEPHEN C ORNELL it to consider historical claims as well as contemporary ones, and legislation recognizing Māori rights to natural resources including forests and ªsheries (Nettheim, Meyers, and Craig ). In the s these developments, combined with continuing Māori pressure, led to direct negotiations between the Crown and some iwi for the settlement of long-standing claims for expropriated lands and other resources (Hill ; Mutu ). While this process has been contentious and its parameters have varied, it has produced a number of settlements that have restored to some iwi modest portions of these lands and have provided some with substantial ªnancial resources, allowing them to become major players in local and even national economies.·¸ Some of those settlements and related legislation, such as the Te Runanga o Ngāi Tahu Act of , included explicit recognition of the tribal collective as a legal personality with, in e¤ect, at least partial governing authority over tribal lands, activities, and relationships. A predictable further result of these developments has been a ¢urry of Māori institution building, based less on external recognition of iwi as self-governing political actors than on the reality of iwi ownership of critical assets and the necessity for e¤ective management and growth of those assets. Not only did the Crown insist on certain forms of organization as a condition of settlement (McHugh ), but Māori themselves felt the pressure to organize, manage, and distribute newly won resources in productive, sustainable, beneªcial ways. e resulting corporate organizational forms echo mainstream models, but some iwi have pursued new or hybrid governance structures as well, infused to one degree or another with Māori values and ritual. For example, in the aftermath of a major settlement with the Crown, Tainui put in place a parliamentary structure with representation from each of the more than sixty local communities, or marae, that had signed the settlement and took other steps to facilitate collective decision-making about their assets, their relationship with the Crown, and related matters (McCan ; Hill ). On the South Island, Ngāi Tahu’s structure links eighteen papatipu runanga, or regional collectives, who are represented in an overall and authoritative decision-making body (Cant ). Such arrangements remain works in progress; their externally recognized jurisdictional powers are limited; and signiªcant issues have yet to be fully addressed or resolved, among them the progressive corporatization of some iwi, the representation of subtribal groups in some of these tribal structures, building culturally appropriate methods of dispute resolution, and the role of urban Māori in settlements and their resulting organizations. And, as one might F ROM R IGHTS TO G OVERNANCE AND B ACK ÄÅ expect, settlements with the state have produced their own issues as iwi face major decisions about what to do with the fruits of their labors and how to fully engage their people in major decisions about the future.·º But this underlines the point: governance issues are drawing more and more Māori attention.

AUSTRALIA

Change has been slower to come in Australia than in the other CANZUS countries and, with the important exception of Native title, often has had less to do with decisions in the courts and policy arena than with sheer frustration. To quote an Indigenous acquaintance in Australia, “If we wait for government to recognize our rights, we’ll die waiting. So why not just get on with our own agendas?”·» is re¢ects the fact that Australia has been far less willing than other CANZUS countries—in particular Canada and the United States—to recognize Indigenous communities as political entities. In summarizing the relevant legal regimes of the various Australian colonies and eventually the federated states of Australia, Paul McHugh () points out that Australian statutory codes simply ignored Indigenous customary political organization: “None of the statutes recognized the existence of ‘tribes’ or ‘chiefs,’ but took an implicit view of Aborigines as an unorganized collection of individuals.” He goes on to say, “ ere was never any sustained attempt to constitute the Aboriginal polity through law even for the purposes of convenience—such as getting their land—or control” (). It was in this general context that the Australian High Court, in , handed down its breakthrough decision in the Mabo case, rejecting the terra nullius argument that Australia belonged to no one prior to European arrival, conªrming the existence of Native land title—something the Australian government had long denied—and responding at last, in e¤ect if not in explicit terms, to decades of Indigenous political activism and claims. e Australian government moved quickly to try to limit the e¤ects of Mabo and of the subsequent and related Wik decision (), which held that Native title rights could coexist with pastoral leases. But a fundamental change had occurred. Despite the e¤orts to limit them, these decisions precipitated an at least partial shift in the focus of Indigenous a¤airs “away from adjudication towards issues of institutional design. ese are, in the end, inseparable from native title, given the need to determine precisely what entity holds the land and how that entity makes valid decisions about it” (Webber , ). In short, the issue of the Ä¼ S TEPHEN C ORNELL organization of Aboriginal interests and authority found much of its way into the political process on the shoulders of the Native title process. In the aftermath of these decisions, various Aboriginal groups in Australia have entered into a wide variety of agreements and other relationships with local, state, territorial, and national governments, and with corporations, particularly in the area of land and resource comanagement or cooperation. ese agreements vary signiªcantly in their details, outcomes, and the distributions of authority within them, but they constitute de facto recognition of Indigenous communities as decision-making entities (Vivian ).·¼ However, with few exceptions,·½ Australian governments continue to resist recognizing the Indigenous peoples of Australia as collective political actors. What Marcia Langton calls “the denial at law of Indigenous sovereignty and, indeed, the very existence of Aboriginal polities” (, ix) has left Indigenous peoples without the rights frameworks, whether based on treaty, legislation, or judicial decisions, that have been important to Indigenous assertions of governing power in the other three CANZUS states. Even in Native title, those peoples are treated primarily as holders of assets, not as political entities. Australian governments still prefer to deal with Indigenous people instead of peoples, to focus on Aboriginal individuals as a social welfare challenge, and to maintain the policy goal of their eventual assimilation into the more general Australian population and life. “We’re all Australians,” as a former prime minister, John Howard, liked to say. While Indigenous organization is permitted and even encouraged, its purposes are conceived as limited, and it takes place under imposed rules and through imposed models: governance by someone else’s design. But this has had an intriguing e¤ect. It has forced some communities that are determined to exercise greater control over their own a¤airs to develop creative strategies for governing, co-opting some structures to serve their own purposes or ªnding other ways to get around imposed rules. e range of responses is broad, from strengthening or resuscitating older Indigenous governance practices that may have been in retreat; to strategies of resistance, circumvention, or delay; to forms of shadow or stealth governance that may foreground compliance with external organizational or process requirements while very di¤erent but more congenial and e¤ective decision-making happens behind the scenes and in accordance with Indigenous law or governance practices; to the incrementalism highlighted by Diane Smith (this volume). ese are communities searching for, and ªnding, ways to expand governance, assuming responsibility wherever they can, establishing rules for collective decision-making, resolving disputes themselves, F ROM R IGHTS TO G OVERNANCE AND B ACK Ä½ entering into agreements with local, non-Indigenous governments, enacting strategic plans, and so forth. Such communities may lack a speciªed right to self- government, but they engage in governance nonetheless, searching out openings in the constraint regime that they can exploit to push against the limits on self- governing power.·¾ e result is a vibrant arena of innovation and change.

TRANSFORMATIONAL EFFECTS

ese developments, while re¢ecting the particular Indigenous circumstances in each country, together constitute a major transformation in Indigenous politics in the CANZUS states. Several dimensions of that transformation are implicit in these capsule accounts. We are seeing a shift in the focus of a good deal of political activity from self-determination to self-government; that is, from pursuit of a collective right to determine the future of the community toward an e¤ort to put that right— recognized or not—to work by asserting and exercising governmental power. As a senior o©cial in one Indigenous Australian community said in reference to his own people, “[ e Australian government] may not recognize us as a nation, but we are going to act like a nation in every way we can.”·¿ is also has shifted the locus of a good deal of Indigenous political activity, moving it from nation-state political arenas and the hands of national actors, including supratribal Indigenous organizations, into local political arenas and the hands of tribal or community entities. In all four countries the national political arena remains active and a crucial space for the assertion and defense of rights, but much of the creative action is happening locally where communities are taking responsibility for their own a¤airs, searching for the organizational means to exercise that responsibility, and—as much as possible—displacing or circumventing external decision-makers. Such changes decenter national policy and politics. e national politics of Indigenous self-determination, including Indigenous protest movements, has tended to center the governments of these countries. Its focus is on what they do or do not do; its generalized goal is to put pressure on central governments to change. at politics has been essential to the emergence of Indigenous governance as an arena of creative activity; its success has been to crack open the door to expanded, localized, organizational, and governmental action by Indigenous communities, tribes, and nations. But that politics itself is now changing; the Ä¾ S TEPHEN C ORNELL result in many places is vibrant local political movements that instead center Indigenous agendas and actions with an emphasis not on what “they” (non- Indigenous governments) do but on what “we” (Indigenous communities, groups, or nations) are going to do, regardless of developments in the national political arena. Part of this is a strategic approach to national policy change, an e¤ort to use local issues to force national decisions.·Â But it also re¢ects an attitudinal change especially apparent among some younger leaders who have tired of discussions of “what they did to us” or “what we think they should do for us now” and are asking instead, “What are we going to do for ourselves?”¸Ã is also gives increased prominence to a particular set of strategic questions. As Indigenous communities move into the driver’s seat in their own a¤airs, nationwide political strategies remain crucial, but as Sir Tipene O’Regan, Māori elder and architect of one of the major settlements in Aotearoa / New Zealand, puts it (this volume), the key and transgenerational task is to decide “what we want to be as a people.” What does the community, tribe, or nation value most, and how will its core values and intergenerational goals be translated into action, including its approach to governance? Without strategic clarity of this magnitude, some Indigenous actions, made in the name of self-government, are likely either to fail or to inadvertently advance the assimilationist project. Another strategic question has to do with the collectives involved: who is the collective “self ” in self-governance?¸· One of the devastating e¤ects of colonial control has been to undermine Indigenous collectives, fragmenting some groups, forcibly consolidating others, and in general imposing on Indigenous peoples not only physical but administrative boundaries of colonial convenience, including boundaries with a rigidity that has often been at odds with more ¢exible, porous, or multilayered collective identities that preceded colonial control.¸¸ As Indigenous groups reclaim self-governing power, many of them have to grapple with the results, among them fragmented communities and lands, broken relationships, dispersed populations, interrupted cultural practices, and inter- and intragroup con¢icts. For some communities, restoring such broken relationships and notions of nationhood has become a central governmental task. For others, because of either size limitations or other current circumstances, neither past nor present versions of the collective “self ” may provide adequate bases for future assertions of identity, form, and purpose, requiring creative approaches to nation building or rebuilding. e social organizational consequences of colonialism may be the starting point for Indigenous organization and action, but they need not limit it. F ROM R IGHTS TO G OVERNANCE AND B ACK Ä¿

Answers to such strategic questions as “What do we value? What are our long-term goals?” and “Who are we? How shall we constitute ourselves as a nation or community?” prompt in turn a set of practical organizational issues: How should the nation or community govern to achieve those ends? Are Indian Act governments (Canada), Indian Reorganization Act governments (the United States), the organizational requirements of the O©ce of the Registrar of Indigenous Corporations (Australia), or the corporate models o¤ered to iwi (Aotearoa / New Zealand) adequate tools for building the futures Indigenous peoples imagine? Many Indigenous peoples are answering “no.” But one of the most di©cult challenges facing those who assert rights of self-government is not only to escape some of the organizational legacies of colonialism but to come up with organizational forms that have legitimacy with their own communities and at the same time can deliver e¤ective governance on behalf of contemporary, intergenerational goals. E¤orts to address this challenge are increasingly evident in Indigenous political and organizational innovation in all four countries: a ¢urry of activity as tribes, nations, and communities search for more e¤ective tools of governance. At one end of a continuum, some are resuscitating or strengthening older governmental forms and normative orders that served them well long before Euro- pean arrivals; at the other, some are turning to non-Indigenous models and traditions but then ªtting them to their own purposes. In Marshall Sahlins’s terms, these are Indigenous peoples using non-Indigenous organizational forms “to become more like themselves” ([ ] , ). In between lies a wide range of Indigenous governance initiatives and solutions as Indigenous peoples in all four countries address, partly through trial and error, the tasks of making—in some cases restoring—and enforcing their own law, resolving disputes, managing and sustaining natural resources, revitalizing language and culture, addressing community social and economic issues, building new relationships with non-Indigenous governments, and more.¸º An inevitable result is institutional diversity. As Indigenous peoples assert the right to govern themselves, including the right to build or revitalize their own governing systems and systems of law, the results often depart from colonial conceptions of how the colonized should govern, instead re¢ecting Indig- enous circumstances, experiences, and political cultures. ese nations may face a common set of governance tasks: how to keep politics from undermining strategic priorities, how to assure fairness in dispute resolution, how to build economies that serve both economic and noneconomic goals, how to not only ÄÀ S TEPHEN C ORNELL make decisions but implement them, how to not only make law but enforce it, and so on. But their methods of meeting those tasks vary. e Ngarrindjeri people in Australia (Hemming, Rigney, and Berg, this volume) will not build the same governing system or use the same organizational models as the Huu- ay-aht First Nations in Canada (Wesley, this volume), nor even as other Indig- enous peoples in Australia. Even within nation-states diversity will be the rule, re¢ecting the peoples and cultures within those states. is frustrates central governments, which would prefer to deal with familiar, consistent, boilerplate structures, ideally ones of their choosing. But diversity has unmatched advantages. Among other things, it means Indigenous peoples are building governments of their own design that therefore have legitimacy with the governed—something colonial impositions, with their message that “we know how you should govern,” seldom achieve. e likely result is more capable and e¤ective governance. Diversity in Indigenous governing systems, it turns out, is not a problem: “On the contrary, it is a solution” (Begay et al. , ). It also is not easy. e conceptual and organizational tasks of governance faced by every human community can be complicated enough on their own. ey are made all the moreso in the Indigenous case by the physical, social, and psychological legacies of colonialism—legacies that vary across peoples and space—by the opposition of central governments, by often severe economic disadvantage, and by the challenges of building new capacities for new times (for example, Trosper, this volume). As a result Indigenous governance, as opposed to self-administration or self-management, is more advanced and successful in some places than in others, both across the four CANZUS countries and within them. Much remains to be overcome. But despite their di¤erences, these e¤orts share a common theme: the Indigenous enactment of self-governing power. us one struggle leads to another. e ªght for self-determination eventually yields the challenge of governance.

LOOKING AHEAD

Of course, the self-determination ªght does not always succeed. e treaty is broken, the court decision goes the other way, the legislation fails, the settlement is rejected, and the right to govern themselves is once again denied to Indigenous peoples—or perhaps the Indigenous government falters or implodes, or squanders its legitimacy with its own people, calling self-determination itself into question. F ROM R IGHTS TO G OVERNANCE AND B ACK ÄÁ

Indeed, the last three decades have shown the fragility of Indigenous gains. In Canada, the change from the Stephen Harper government to the Jus- tin Trudeau government saw a shift from policies designed to severely limit the powers of First Nations to policies at least open to expanding them. is was positive, but it showed how quickly change can come. When might another election have the opposite e¤ect? In the United States, some American Indian nations have beneªted from a distinctive legal situation. As McHugh points out (, ), Indian Reorganization Act governments “contained a mechanism for constitutional revision”; that is, for Indigenous governmental redesign. e other CANZUS countries “lacked a similar common law principle empowering aboriginal polities in a self-executing manner. In those countries indigenous peoples have had to rely, instead, upon permissive settler-state legislation” (McHugh , ). Yet recent U.S. Supreme Court decisions have undermined the governmental powers of American Indian nations, and congressional support for what is commonly known as tribal sovereignty is in decline (Williams ; Cornell and Kalt ; Duthu ; Ball ). In Australia, the Commonwealth government and the governments of most states and territories continue to resist the idea of Indigenous nations as political entities with substantive jurisdiction in their own a¤airs, while a chronically unstable policy environment, ricocheting from one supposed solution to another, keeps Indigenous peoples guessing about future possibilities. And in Aotearoa / New Zealand, it remains to be seen whether iwi or hapuu can consistently expand their decision-making powers beyond the economic arena. In all four countries, Indigenous nations may be creative in their strategies for asserting governmental power, but state and nonstate actors resisting those assertions can be creative, too, ªnding new ways to resist (see, on both forms of creativity, the chapters in this volume by Hemming, Rigney, and Berg; Sander- son and Willms; and O’Brien). e battle for rights goes on, and the governance winnings are hardly secure. But the fragility of rights is no argument against an Indigenous focus on governance. On the contrary, capable governance may turn out to be crucial to the defense of rights, including those not yet acknowledged by central governments. As an Indigenous leader in the United States once commented to some colleagues and me, one of the best defenses of what is known there as tribal sovereignty is to exercise it e¤ectively. Capable governance is, among other things, a defense mechanism. Assertions of governmental power, thoughtfully conceived and e¤ectively executed, can expand the jurisdictional envelope within which Indigenous nations operate, encouraging other governments to treat them as ÅÃ S TEPHEN C ORNELL peers or partners or, at the very least, with respect.¸» What the evidence seems to say is this: govern where you can; govern on your own terms but with strategic acumen; govern well; and you will move closer to the recognition and freedom you desire. e relationship between governance and rights goes both ways, and it is transforming Indigenous politics.

NOTES

Early versions of this chapter were delivered as lectures at the Joseph A. Myers Center for Research on Native American Issues at the University of California, Berkeley, in April ; at the Center for Aboriginal Economic Policy Research at the Australian National University in Canberra in October ; and at the symposium on “Donning the Regalia” at the University of British Columbia in Vancouver in December . At all three I received helpful audience commen- tary. I am indebted also for discussions with colleagues Steve Hemming, Miriam Jorgensen, Mark Macmillan, Daryle Rigney, and Alison Vivian on an Australian Research Council (ARC)-funded research project titled “Indigenous Nationhood in the Absence of Recognition,” headquartered at the Jumbunna Institute for Indigenous Education and Research at the University of Technology, Sydney. I am grateful to the ARC for its support of that project. Finally, thanks to Joseph Kalt, Sir Tipene O’Regan, Diane Smith, Neil Sterritt, and Sarah-Jane Tiakiwai for insightful discussions of these topics. James Anaya, unpublished keynote presentation, “Common Roots, Common Futures: Di¤erent Paths to Self-Determination. An International Conversation” (conference, Tucson, Ariz., February , ). See Nikolakis (this volume) for a somewhat di¤erent but complementary conception of Indigenous self-governance that sees it as variously pursuing one of three goals: the status quo, incremental change, or transformative change. ere is a large literature on “good governance” but see, for example, the discussions by Martin Doornbos () and Rachel Gisselquist (). e latter also o¤ers (–) a capsule comparison of how a number of major international development agencies variously deªne good governance; for another detailed example, see United Nations Economic and Social Commission for Asia and the Paciªc . As her quotes suggest, Angela Riley (a) engages the issue for Indigenous nations, at least in the United States, in detail, while a second article (Riley b) provides highly relevant context. McHugh () provides a comprehensive comparative review of the legal developments involved. On the continuation of assimilation through Western organizational forms, see, for example, Edward Spicer (), who remarks of the federal Indian Reorganization Act (IRA) in the United States that “the basic idea of the IRA policy was that the cultural assimilation of Indians, individual F ROM R IGHTS TO G OVERNANCE AND B ACK ÅÂ

by individual, as conceived in the former policy of land allotment and boarding- school education, disorganized both Indian personality and communities, and that in¢uences from Anglo culture could be best assimilated through the medium of the tribe as an organized entity set up to deal as a unit with the outside in¢uences. It was in a sense a concept of transitional community” ( ). See also Prucha ; Cornell ; Nagel . On the Great Society programs, see Levitan and Hetrick and more generally Greenstone and Peterson . As one reviewer reminded me, by the s a number of these bureaucrats were themselves Native people as the federal government moved to indigenize its Indian A¤airs workforce. Examples of some of the more successful of these initiatives can be found on the website of Honoring Nations, a program that identiªes and celebrates innovative cases of tribal governance in the United States. See http://hpaied .org/ honoring -nations. ere are numerous sources on these matters, but on the “white paper,” see Weaver and Cairns ; on localized political e¤orts, see Wilkes ; and for some examples of speciªc campaigns, see the accounts in Richardson and the discussion of Gitxsan and Wet’suet’en e¤orts culminating in the Delgamuukw decision in Sterritt . Satsan, personal conversation, in a meeting with visiting Aboriginal and Torres Strait Islander Australians, Vancouver, B.C., May , . See, for example, Rose ; Roundpoint ; Tlicho Government ; Palmer and Tehan ; Brimley et al. ; National Centre for First Nations Governance ; National Centre for First Nations Governance and Native Nations Institute ; Beaudrie, Phillips, and Dolan, forthcoming; and many others. Richard Hill (, ), with reference to observations by Joan Metge (), remarks along these lines about the post– World War II period that “a number of [Māori] social, organisational and cultural forms which had remained virtually intact in the pre- war period of ‘resistive acculturation’ were being reasserted through o©cial bodies intended, ultimately, to usurp them.” On the terms whakapapa, hapuu, and iwi, see the discussions in Benton, Frame, and Meredith . See Durie (ch. ); Goodall ; Hill (ch. ); and, for accounts of two of the major settlements, see McCan (ch. ) and O’Regan, Palmer, and Langton . For some re¢ections on these outcomes, see O’Regan (this volume). See, for example, Cant ; Mutu ; O’Regan (this volume); and the discussion in Erueti . Personal conversation, November . See, for example, the cases in Baker, Davies, and Young and in Altman and Kerins . Some such relationships preceded Mabo, re¢ecting distinctive local circumstances and con¢icts and the practices of some Australian states that, beginning in the s, recognized some limited Aboriginal land rights in reserves or in vacant Crown land (McHugh , – ; see also, for example, Doohan ). e states of Victoria and South Australia moved in to consider new relationships with Indigenous peoples, including possible forms of Indigenous political orga- ÅÄ S TEPHEN C ORNELL

nization and self-government, although South Australia soon backed away. See, for example, Government of South Australia ; Aboriginal Victoria, “Treaty,” accessed November , https:// www .vic.gov .au/ aboriginalvictoria/ treaty .html. Alison Vivian () provides a detailed examination and analysis of two cases, one in Victoria, one in South Australia; see also (among others) Hemming and Rigney ; Hemming, Rigney, and Berg ; Smith (and this volume); dé Ishtar and the Women Elders of Kapululangu Aboriginal Women’s Law and Culture Centre ; Hemming, Rigney, and Berg (this volume). Kathryn orburn (), without putting it in so many words, ªnds a kind of shadow Indigenous governance operating in the West Kimberly. Personal conversation, May . See, for example, Neil Sterritt’s account (, –) of the decision to move forward with what became the Delgamuukw case. is attitudinal shift has been increasingly evident over the last two decades in some of the governance- related work of the University of Arizona’s Native Nations Institute with American Indian nations and First Nations in Canada. See discussions of this point, sometimes using di¤erent terms, in Peters ; Taylor ; Hunt and Smith ; Cornell . See Borrows ; McHugh ; Bauman ; Cornell . e examples are legion but see several of the chapters in this volume as well as, among many others: Mohawk Council of Akwesasne ; Tlicho Government ; Cant ; Goodall ; Joseph ; Hunt and Smith ; Lemont ; Brimley et al. ; Jorgensen ; National Centre for First Nations Governance and Native Nations Institute ; Smith ; Barcham ; Hemming, Rigney, and Berg ; Maddison and Brigg ; Dennison ; Vizenor and Doer¢er ; Cornell ; Tatum et al. ; Vivian ; Ruru ; Beaudrie, Phillips, and Dolan, forthcoming. is idea ªts with Métis attorney Paul Chartrand’s () notion that practices can crystallize into rights. See also Vivian .

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THE SHAREHOLDER WHO NEVER DIES

The Economics of Indigenous Survival and the Development of Culturally Relevant Governance

³«¹ ´ «¶µ°µ ²’¹ µÇ®°

This chapter is drawn from my Vincent Lingiari Memorial Address, Charles Darwin University, Darwin, Northern Territory, Australia, Au- gust 21, 2014. The address was preceded by a formal greeting in te reo Māori (Māori language) paying tribute to some of the great gures of the Australian Aboriginal rights struggle of my generation, many of whom I have known well and with whom our people have had productive association. These greetings concluded with acknowledgment and greetings to the Larrakia people on whose ancient lands we were gathered.

“Mo tātou, mo ka uri i muri ake nei”: “For us and our children after us.” In our history, this aspiration was connected to our seven-generation struggle with the Crown as the titular emblem of the New Zealand State, over the Ngāi Tahu land and resource claims. It manifested our purpose. It told why we were engaged. is motto of ours is still aspirational. It has a nice pious ring to it, and it decorates almost everything we undertake, from cultural festivals to exhibitions, to tribal superannuation saving schemes. It is all over our tribal and subsidiary company websites. But now that we have settled our claims and made peace with the Crown, just what is that aspiration? What is our new purpose? What does the motto mean now? I propose to bring to your attention the very important issue of Indigenous governance of Indigenous capital for Indigenous purposes. General governance principles proceed from, and sit within, a broader mesh of cultural ethics. e national economies and national cultures that have evolved to manage the Western model of liberal capitalism surround Indigenous minorities. From my T HE S HAREHOLDER W HO N EVER DIES ÅÁ experience I postulate that such governance models are inappropriate for the distinctive needs and aspirations of Indigenous minorities who, if they are to maintain and control their own cultural integrity, must develop their own ethic of Indigenous governance. I do not have a prescription for that new model of Indigenous governance, but I accept that it will almost certainly incorporate (by reverse colonization, you might think) a range of concepts and ideas taken from the power cultures. Rather than prescribe, then, I will urge the advancing of a conversation aimed at evolving models of this Indigenous governance but one in which the Indige- nous minorities are themselves the autonomous managers of their own futures. Such an ethic of Indigenous governance needs to be congruent with the aims and aspirations of the culture to which it belongs and ultimately directed to the survival and continuing evolution of that culture. I make no apology for viewing the matters I propose to discuss with you through the prism of my own Ngāi Tahu tribal identity and experience. But, as I have observed, the issues that I raise in this chapter confront almost every Indigenous minority in various forms across the United States, Canada, Austra- lia, and even the Saami and Inuit in Scandinavia and Northern Europe.

THE NGĀI TAHU JOURNEY

I want to tell you something of this tribe from which I descend through my Ngāi Tahu mother and to draw from our experience the challenges we face in developing a culturally relevant model of governance as we assume command of our own future. is future rides on the back of our own capital, for which we are now responsible—responsible both to protect and to grow. As a consequence of settling our historic claims against the state, we have deprived ourselves of the consolations of grievance, but how do we rid ourselves of its smell? Who is there, now, to blame? We are, after all, very much like most citizens in most liberal democracies—we know in ªne detail what we do not want and what we do not want to be. We are far less clear on what we do want, and on what and how we want to be. Until we have come to terms with the question of what we want to be as a people, there is no horizon of purpose, no need for any strategic direction beyond making cash and distributing it more or less e©ciently and more or less equi- tably. If that is all the membership of an Indigenous culture amounts to, if it is nothing more than privatized welfare, then why bother? ¼Ã S IR T IPENE O’R EGAN

First, though, before I attempt the big questions, I need to introduce this tribal people to which I belong and which I am using as my metaphor. My mother’s people are Ngāi Tahu. We are the tribe that holds manawhenua—in Māori terms, traditional authority—over the greater part of Te Waipounamu, the South Island of New Zealand. We are formed of three broad streams of descent: the most ancient arriving in the north of our island in the remote past; the other two migrating southward from the East Coast of the North Island in the second quarter of the seventeenth century. From our traditional histories we know that by the late eighteenth century, these three originating streams of descent had melded into a relatively cohesive single identity as a people, calling itself Ngāi Tahu. I am deliberate in my choice of the expression “relatively cohesive.” I choose it because I should not like you to think that the process of establishing “relative cohesion” over the seventeenth and eighteenth centuries would meet with the approval of today’s Human Rights Commission or even our current community consultation standards. On the contrary, the traditional accounts o¤er us a richly textured history of retributive warfare between the groups that were to become Ngāi Tahu—warfare over claims to resources of land and coast, over women, over issues of mana (honor or authority)—all the myriad causes that people everywhere have ever gone to war about. Our vast tribal territory was matched with a small population of about three thousand living in far-¢ung, largely coastal settlements. is diverse collection of closely related but vigorously autonomous communities, spaced out over large distances, traveled and communicated incessantly. ey were all connected by a reinforced mesh of whakapapa (genealogy or kinship) constantly refreshed by intermarriage. e seasonal availability of resources dominated everything, including warfare. Seasonality controlled the East/West trade movement; indeed, it controlled all trade movements such as that in titi (preserved shearwater-mutton birds), in pounamu (nephrite jade), in taramea (perfume), in tikumu (scented grasses), and in a large inventory of preserved foods. Seasonality controlled the annual intragroup exploitation of inland areas where weka (bush- hen) was hunted and processed and where so much intergroup ªghting and intermarriage took place. Warfare—as with our contemporary rugby, netball, and politics—had its appropriate season. From time to time these more northerly relations of ours indulged in their own internal orgies of self-destruction. One such event, the Kai Huaka feud in the early nineteenth century, left the central region of our people exhausted and T HE S HAREHOLDER W HO N EVER DIES ¼Â open to genocidal invasion by the musket-armed North Island Ngāti Toa and their Māori and Pākehā allies (Pākehā is a Māori term for New Zealanders of European descent). e slaughter of the musket-less Ngāi Tahu was massive. Ngāi Tahu’s upoko ariki, or paramount chief, was captured and most cruelly murdered by the invaders. Death and destruction abounded. is new violence, though, was di¤erent. It was intrusive; the aggression was from outside. It was not the ordinary business of interkin feuding. In most kin groups external aggression or threat unites the most discordant households. So, too, with the Ngāi Tahu in the s. e southern Ngāi Tahu of Otākou and Murihiku had been developing extensive trading relationships with the Australian cities of Sydney and Hobart. ey were well equipped and militarily competent. ese musket-armed southern Ngāi Tahu with their modern whaleboats and cannons, their supply lines stocked with the newly adopted potatoes and farmed meat, had clear lines of battle-ready and militarily experienced leadership. ey rapidly overcame their familial discontents and tribal discord. ey rallied to the tribal call to defend the tribal realm and by the mid- s had driven the invaders from Ngāi Tahu’s traditional territories. e tribe was beginning its healing reuniªcation. is meant, of course, the return to a relatively normal climate of interregional, intergroup and interpersonal tension. But Ngāi Tahu’s southern world had changed forever. Muskets, whaleboats, and war—and potatoes—had changed everything. So, too, had the dramatically exploding phenomenon of literacy, later to become a powerful weapon of recovery. e kinship remained but the institutions and structures of tribal and subtribal authority, the alliances and relationships built up over a couple of centuries of shared experience, were shattered. But our people’s identity, woven in whakapapa, survived, and the closely connected culture of māhika kai (customary food exploitation) reinforced their old sense of being and functioning. While the base unity of kinship remained, it had lost its form and structure and, importantly, its authority. At the very time Ngāi Tahu needed new and visionary leadership to steer them into the new global economy and political culture that was surging, tsunami-like, over them, their old internal tensions— freed from the traditional restraints of chie¢y marriage and relationships— constrained them from cohering into a new unity to meet the new challenges. ere was su©cient cohesion, though, to allow for transactions with the Brit- ish Crown following the Treaty of Waitangi of . Between and , the whole of the Ngāi Tahu territory passed to the Crown subject to provision for reserves and various other requirements. Within short order, however, it became ¼Ä S IR T IPENE O’R EGAN clear that the Crown (rapidly transforming itself into a settler state) was failing to honor its own contracts with regard both to land reserves and māhika kai, or food resource zones, and the long battle for the Ngāi Tahu claims had begun. Ngāi Tahu now had a new external enemy, a new threat from a common foe. A fresh and emergent basis for unity had been found: the emergent New Zealand state. e history of that struggle, on which I was to become engaged in the late s, to amend the Waitangi tribunal legislation and the subsequent marathon hearings and Ngāi Tahu Report; the further eight years of litigation (some of it at the Privy Council in London); and the negotiation and ªnal agreement is another whole chapter in the Ngāi Tahu saga. Su©ce to say that when the Ngāi Tahu Claims Settlement Act was ªnally passed into law in , the struggle with the Crown had absorbed some seven generations of Ngāi Tahu. e language of the debate was changing and our history had become much less contested. Our position was largely conªrmed by tribunals, judges and parliament. e gatekeepers of the “power culture” had conceded. For my mother’s generation and those before her, being Ngāi Tahu was synonymous with Te Kereeme, or “ e Claim.” All the things that are today seen as culturally iconic in the Māori world—tangi (our funerals), hui (our gatherings), the arts, the language—were ordinary, normal parts of her everyday life. e thing that made them Ngāi Tahu, that made them distinctive from other Māori, that bound them into their whole sense of tribal being, was their shared consciousness of dispossession and grievance against the Crown. Over the course of that long struggle, our identity as a people had become rooted in grievance, in a sense of collective loss. When one’s identity is rooted in grievance, it is di©cult to conceive of a future that is not resistant, not characterized by its deªance of the oppressor, not marked by what the poet Roy Campbell ( ) described as “the timeless, surly patience of the serf.” What was there in that old heritage that could ªre a transformation to a notion of the future, of a new way of being as a people, of an identity fueled by optimism and aspiration, that could reach beyond the mere removal of misery to a sense of cultural growth and well-being? In the years of the “ e Claim”—from to —Ngāi Tahu had endured, like other iwi (tribal nations), all the grinding misery imposed by colonization. eir legal personality as a people had been deliberately vaporized by the settler parliament. ey had been decimated by disease and poverty, deprived of their capital base in land and ªsheries, and had no means to take up the opportunities presented by the new global economy that now surrounded them. T HE S HAREHOLDER W HO N EVER DIES ¼Å

What is extraordinary about that years is that this disparate grouping of far-¢ung Ngāi Tahu communities was able to maintain, let alone grow, any sense of tribal community at all. All the forces of demography, geography, and history were in numerous ways conspiring against any survival of that identity. Yet it did persist and it continues to persist, despite some commentators who suggest that the concept of the tribe is both archaic and anarchic, and has no place in this new millennium of liberal democracy. And it does not just persist; it ¢ourishes today in ways my own generation, let alone my mother’s, could not have dreamed of.

BUILDING AND MAINTAINING LEGITIMACY FOR NGĀI TAHU TODAY

Ngāi Tahu is now the third largest of all Māori iwi. e , individual New Zealanders (and Australians) who identify as Ngāi Tahu clearly wish to continue doing so. What is it, though, that moves them to maintain this distinctive element in their identity, to pursue their historic and cultural heritage, to maintain their connection? Despite our now substantial tribal wealth and assets, no more than a handful of Ngāi Tahu will ever gain employment within our economic structure. Prob- ably no more than three thousand of them would be actively in communion with our marae (meeting grounds) communities—feeding visitors, ªxing urupa (Māori burial grounds), painting fences or attending tangi (our funeral ceremonies). e enrolled tribal membership vastly exceeds the number of those actively involved in tribal life and a¤airs. ere is evidence aplenty, however, of this great passive membership retaining a high degree of adhesion to their Ngāi Tahu identity and making ample assertion to that e¤ect. Minus the adhesive grievance of past generations, the sense of collective identity just seems to want to keep on keeping on. New Zealand itself is a mere minnow in an ocean of global economics and culture. It survives as a distinct cultural and economic identity by dint of geographic isolation combined with global and economic irrelevance. Is that the answer to my question of Ngāi Tahu and their adhesion to identity? Do Ngāi Tahu people continue to identify as Ngāi Tahu because they threaten no one? Perhaps they are like New Zealand: free by dint of irrelevance? But Ngāi Tahu is not just a minority within a larger ethnic Māori minority. It is also southern. It is rooted within Te Waipounamu, the South Island of New Zealand. ¼¼ S IR T IPENE O’R EGAN

A sense of geographic and numerical disadvantage is not enough to explain how a distinctive minority identity such as that of Ngāi Tahu persists through generations even when the circumstances giving rise to it are virtually reversed. at is what has happened. Peace has now broken out, relatively speaking. e Crown and local government now increasingly talk of “partnering” with our tribal structures on everything from marine reserves to the Christchurch earthquake rebuild. We are now “consulted” on place-names, water conservation orders, irrigation projects, and all manner of regional plans and schemes. Our traditional marae facilities routinely host gatherings at the request of the local and regional government, and marae visits by schools have grown exponentially as Māori studies becomes increasingly normalized in the curriculum. And we are, relatively, now wealthy with total assets of nearly NZÇ billion (and rising) with a tribally managed superannuation scheme of more than twenty-ªve thousand members and more than Ç million of funds under management. We are a signiªcant force in the tourism, ªshing, and farming industries. We are major property developers and investors. We own a number of large government properties within our traditional southern territory that are leased back on commercial terms. Since our settlements in we have distributed more than Ç million of funds back into our tribal structure, communities, and to individuals. All this is widely seen to be successful and very worthy and there is a substantial level of self-satisfaction permeating the Ngāi Tahu community. at self-satisfaction is not unvarnished, though. ere remains among the wider leadership a su©cient comprehension of reality to understand that there are huge tasks before us in fully establishing that new foundation, a new base, for this reborn Ngāi Tahu nation. Some of these challenges are demanding. How do you insulate your cultural and historical knowledge base from the power culture surrounding you? How do you create your own search engines, your own archives, commission your own histories, your own analyses? How do you take command, as a people, of your own heritage and identity and insulate it from all the gatekeepers of the arts councils, libraries and academia, the lottery boards, and all the other caring agencies? e people and organizations by whom we are surrounded are not bad people; they are not malevolent. Some of them know more about us than we know ourselves. Some of them care more about our history than do many of our own. But command of your own culture and heritage and being the primary proprietors of your own history are ªrst priorities of cultural autonomy, T HE S HAREHOLDER W HO N EVER DIES ¼½ of actually owning who you are. How do you develop within this reborn nation the intellectual infrastructure to nourish that identity you say you want to hold? More important, perhaps, is the question that follows. Just how do you establish processes within that disparate and dispersed sixty-four thousand-odd individuals that allow them access to the underpinning knowledge base of this identity? How best do you assist them to the recovery of their ancestral reo— their language, their waiata (chant poetry), their korero pūrakau (traditional histories)? How do you ensure their access to the tribal story of Ngāi Tahu’s culture contact history of the nineteenth and twentieth centuries or to the extraordinary history of the Ngāi Tahu claims and their resolution? How do you enliven their attention to the tasks yet to be undertaken in the areas of customary rights in the forest and on the coasts and in the rivers? ere are, obviously, more questions here than answers. We have a solid group of young, culturally competent professionals wrestling with those questions, and those charged with the business of tribal governance are slowly becoming seized of them. is last group is important because they are the ones who are ultimately responsible for the assets of our people and the distributions arising from them. One’s political leadership does not need to have all the answers, but it is important that they have some notion of the questions! ere is, of course, a need for social expenditure, generated o¤ the back of the recapitalization I have referred to, on a range of social objectives in health and education and other good works. ese subsidize the beneªts of citizenship to which we, as individual taxpayers, are as entitled as our fellow citizens. ere is a need, too, for ongoing expenditure in “defending the realm,” the constant and ongoing struggle with the state in its various forms, even just enforcing the agreements so recently and solemnly entered into. We have already learned something of the cost of defending the peace!

GOING FORWARD: TAKING COMMAND OF NGĀI TAHU CULTURE AND ECONOMY, AND THE SHAREHOLDER THAT NEVER DIES

Assuming, then, that matters of political legitimacy are suitably and adequately provided for, I turn to the sustaining of that heritage and identity and how it is best and most appropriately funded. As a consequence of that overriding intergenerational purpose, our capital assets are typically not for sale. Many ¼¾ S IR T IPENE O’R EGAN of them are seen as intergenerational cultural assets. For various cultural and historic reasons they are, in addition, generally weighted toward land and natural resources: the primary sector. Within the Māori frame, the ªrst question is typically not Ko wai koe?—“What is your name?” It is No hea koe?—“Where are you from?” Geography and place are central to identity. e word for the umbilicus is whenua; it also is the word for land. Place, then, is an important marker of who you are in tribal and cultural terms. My point is that this intergenerational capital supporting an intergenerational heritage should not be seen just as a cash generator funding arts festivals and scholarships. How the wealth is generated should be congruent, to some degree at least, with the purpose it serves. Traveling a highway past tribally owned lands and forests or taking food ªsh from your own coast can be as much a cultural imperative as knowing the meaning of your own place-names and speaking Māori. e word I used in my opening greetings to the Larrakia people, manawhenua, or “authority over place,” is a concept that ultimately requires a signiªcant measure of actual proprietorship over assets that are, themselves, part of an intergenerational culture. It helps that land and natural resources are also usefully important vehicles for containing capital on an intergenerational basis. Ask Warren Bu¤et or the Harvard University Endowment Fund (!). For the moment, though, I only note that while we are doing increasingly well in advancing the maintenance of our heritage and identity in our new spending, that is not much re¢ected yet in how we invest to underpin the future. A considerable proportion of Māori collective capital is in Māori incorporations and trusts in which shareholdings are privately held. eir purpose and, consequently, their governance are little di¤erent in structure and requirements from the corporately owned assets in the wider economy. eir ownership is in kin-based Māori entities, but the only thing that is structurally distinctive about them is the Māoriness of their ownership. eir aim is private beneªt. eir governance ethic is essentially that of the surrounding economic culture. e governance ethic that I referred to at the beginning of this chapter relates to a quite di¤erent economic and cultural entity. It is that of the collectively owned economic enterprises—owned by tribal, or iwi, collectives. ese Māori enterprises are not held in individual private share ownership. ey are owned and governed by Māori tribes and subtribal entities. Although these tribally owned businesses may swim in the same pool and compete in similar markets to comparable businesses in the general economy, T HE S HAREHOLDER W HO N EVER DIES ¼¿ they are of a fundamentally di¤erent character to other enterprises in that economy. at essential di¤erence lies in the intergenerational purpose for which they are owned and the intergenerational character of their ownership. e singular di¤erentiating characteristic, and the one that makes it di¤erent from individually owned Māori enterprise, is that it has a shareholder who never dies. On the other hand, general democratic capitalism may be said to be premised on the notion of “shareholder death.”· Democratic capitalism, moreover, has a second premise beyond shareholders who die. is is that assets will be sold, broken up, subdivided, regrouped, and rearranged at least once, and often much more frequently, in every generation. It is called “the market.” is continuous breaking up and redistribution of capital, which is the hallmark of democratic capitalism, is the very antithesis of the maintenance of capital on an intergenerational basis. Yet such a basis is the only possible way in which an iwi can ensure its existence as an economically autonomous entity into the next thirty, forty, or ªfty years. I note that an iwi economy cannot ignore the market; neither should it. We will always be surrounded by it and, to some extent, we must participate in it simply to pay the grocery bills. Being surrounded by it and having a limited participation in it is one thing, but being a fully paid up, subscribing, and committed member of it is entirely another. is is so because the basic task of an iwi economy is di¤erent and distinct from the economy it sits within. An iwi economy has a multigenerational time horizon and thus a fundamentally di¤erent requirement from its capital. It must produce wealth over the long term and not just for the generation in which it ªnds itself. In the case of Ngāi Tahu, for instance, it has essentially guaranteed some of its infant members that their tribally supplemented savings will be there for them when they arrive at their ªfty-ªfth birthday, but the tribe cannot securely promise this on the basis of exposure to the turbulent shifting market. When the tribe takes the decision that it actually wants to exist in two or three generations’ time as a culturally identiªable, kinship- or whakapapa-linked community in a context of its traditional territory, it has to take decisions now as to how it is going to fund, protect, and develop that culture over time. It is that underlying strategic requirement that must inform Ngāi Tahu’s economic governance. Having established, I hope, that an Indigenous minority is di¤erent in long- term economic purpose and, consequently, has a need for a di¤erent form of economic strategy and governance, I turn to the question of what such an economy and its governance might look like. ¼À S IR T IPENE O’R EGAN

NGĀI TAHU GOVERNANCE: WHO AND HOW WE WANT TO BE

Most of the general prescriptions for economic and administrative governance have been evolved within the framework and ethic of Western capitalism, humanized to some degree by a range of variants of liberal democracy. ere exists an international government and business subculture of regulators, con- trollers, and analysts who make a very good living analyzing the achievements of others. eir adjuncts are think tanks and university business schools. From time to time the whole economic structure stalls, stumbles, gathers itself, and stumbles on, generally following taxpayer-funded interventions. It all works well enough for a market-based system made up of continuous cycles of buying and selling, trading and short-term investing. It accommodates failure, losses, and collapse—and stumbles on. It is driven, though, by an ethic that has never been able to accommodate a notion of intergenerational capital maintenance. Without indulging myself in that whole subtext represented by in¢ation, I hope I have said enough to make plain my view that the norms of governance one encounters at management seminars verge on the irrelevant in a context of such a concept as a tribally based intergenerational economy. Su©ce to say that implementing an overriding aim of intergenerational wealth maintenance is a tall order. ere are very few examples worldwide of this being achieved successfully, especially by communities existing as minorities surrounded by larger capitalist environments, whether dominated by state capitalism or private capitalism or a blend of both. ere are no satisfactory examples in which the shareholding community is expanding generation on generation and in which capital wealth is being expanded at a similar rate or in the same proportion. Even the most successful examples of economic longevity—the overseas Chinese and the Basque Mondragon Cooperative— depend, ultimately, on a reduction in numbers. To return to the problem: the primary requirement in formulating this more suitable paradigm of Indigenous governance is a sense of purpose, a clear notion of what and how the group wants to be. Formulating and articulating such a sense is the necessary prerequisite of any developed strategic direction. In the case of Ngāi Tahu, as I have earlier recounted, we spent six or seven generations persisting with a sense of identity built around a grievance. We have historically persisted in our identity as a tribal nation, and that made it possible for us to overcome the grievance, or at least to set it aside. We could T HE S HAREHOLDER W HO N EVER DIES ¼Á not have done that unless our forebears actually wanted their world and that of their mokopuna (descendants) to be di¤erent. In their time, though, they did not articulate a vision beyond the end of the war or beyond achieving justice in Te Keereme, the Claim. ey left us no inheritance of aspiration beyond a settlement. All they have left us is the clear demonstration that survival is possible. But what kind of survival? Some years ago now, our tribal structure faced that question in an attempt to give itself focus and strategic direction. It produced and promulgated a document called “Ngāi Tahu .” at document has now passed its half-life. It was well intentioned and carefully considered. It contains some very ªne aspirations together with ªve-year and twenty-ªve-year targets. It was put to the annual Hui-a-Tau (gathering) of the tribe in . ere was great enthusiasm. All formal decisions by the governing body since that time have been required to carry a signed assurance that the decision is consistent with Ngāi Tahu . We describe this document on our website as “our tribal map that in the year will have carried us to the place where we are empowered (in our various manifestations) to realise our dreams.”¸ e di©culty is that maps do not carry you anywhere. At best they can only assist with directions. I can only observe that the aspirations remain intact at the halfway mark but I remain deeply skeptical that they can be achieved on the basis of present settings. Today we own less than half the quantum of tribal land than we did following settlement in ; we rent out to others the bulk of our ªsheries quota, and our Māori language revitalization e¤ort, despite some extraordinary gains, cannot yet be said to be winning. To be fair, though, we are vastly wealthier and making some great strides in a variety of worthwhile operational and commercial directions. We are doing some things, especially on the cultural and heritage side, better than we ever envisaged in drafting the roadmap. And, again to be fair, we have endured in our heartland one of the world’s more destructive recent earthquakes. at has been hugely preoccupying while at the same time providing a unique economic opportunity. us we can look at ourselves and say we have a heritage of persistence that we want to transform with a new sense of direction, and we have dreamed and articulated that direction. We have collectively concluded that we want to continue to be and we have some notion of how we want to be. We have established the foundations of that intergenerational self-concept of which I have been speaking, and we have adopted a horizon for its achievement. But, just as maps are only a guide to direction, horizons, of their very nature, recede as you move toward them. ½Ã S IR T IPENE O’R EGAN

We still have a substantial disconnect between this intergenerational dream of a Ngāi Tahu heritage and identity and the economic structure we have established to fund it. at structure, our Ngāi Tahu Holdings Corporation, has good directors and management, all selected by tidy conventional governance processes. Its standing in the surrounding economy and its reputation among the denizens of those surroundings is one of good repute, and we are collectively happy to receive the approbation of the business media and o©cialdom. We constructed (during my own time at the helm of our diminutive Ngāi Tahu Nation) a high level of separation between our commercial arm and our political arm. e management convention of that period was to depoliticize the commercial function, and we took it to heart. We followed, in quite a large measure, the precepts being developed in New Zealand of that time for state- owned enterprises (SOE). We failed, though, to appreciate that an SOE has a quite speciªc commercial function in a deªned area: electricity generation, roads, statistics, and so on. An enterprise does not constitute a nation. We created a structural ethic of separation very successfully. So successful that, as owners, we now have di©culty in placing any constraints or giving any direction to those charged with wealth generation on our behalf. is is not necessarily the fault of the directors. Our own political representative structure has absorbed this ethic of separation. It sends letters of expectation to its commercial directors on an annual basis but refrains from imposing its wider policy aspiration on them. To some extent that re¢ects a quite understandable unwillingness to have to grapple with big visionary questions. at requires a level of intellectual commitment that few politicians, of any ilk, manifest. It is far easier to deal with minutiae and say “no” to proposals. is quite normal form of political myopia that I describe avoids debating the form and implication of a long-term intergenerational strategy in case it might ªnd itself wanting to impose it and then be confronted with tensions. I personally suspect that the directors might welcome a clearly articulated long- term economic strategy with some expression of preference for areas of activity or investment. I am sure they would welcome debate on the merits of alternative strategies. For the moment, then, there is an amiable relationship but an intellectual distance between these two key elements in our structure. And that distance has already resulted in the diminution of our land footprint and our ªsheries involvement, notwithstanding our enhanced wealth. Such questions need to be resolved at the outset as groups pursue nation-building. T HE S HAREHOLDER W HO N EVER DIES ½Â

I have given more than su©cient indication, then, that I believe an intergenerational aim requires an intergenerationally aligned economy. Such an economy requires an aligned form of governance, and that is not to be found in the churn of Western market economics and its conventions of governance. Indigenous economies that are funding their own futures require governance designed to manage and contain assets in the very long term. is all requires a measure of deliberate intent. It will not happen without that. e intent requires substance in terms of identiªable and clear policy goals. I am not conscious of such goals being abundantly evident in the Māori organizations with which I am familiar or in a developed form, at least among my North American con- tacts. ere is, though, no shortage of pious aspiration. But it is without a great deal of evident substance. e challenge of intergenerational capital maintenance within an iwi group must be seen, then, as very much a work in progress. In many ways the opportunity for thinking di¤erently has never been better in my lifetime. e past few years, and especially the recent tectonic economic shifts, have clearly demonstrated the fragility of the underlying concepts of Western capitalism and Western socialism. e vaunted statuary of both lie shattered all around us. e fashionable economic mantras of the chattering classes and their media commentariat have been reduced to negative equity. eir patronizing oversight of Indigenous economic development and its aspirations can now be politely set aside while we chart a di¤erent course toward building an economic paradigm that is consistent with our dream of what we want to be. at paradigm is a work in progress. Its most fundamental requirement is that we are clear, iwi by iwi, tribe by tribe, nation by nation, on what and how we want to be. To the extent that I have reported on Ngāi Tahu, I can say that we, along with many other Indigenous communities, are still some distance from the political, cultural, and economic alignment that such governance requires.

PARTING THOUGHTS

All federally organized groupings—and especially those with a high degree of geographical separation such as Ngāi Tahu—are subject to a constant pressure to desegregate, be they national rugby unions, automobile associations, or tribal groupings seeking greater autonomy for their constituent parts. ere is a constant process, akin to oscillation, shifting to and then from regional to ½Ä S IR T IPENE O’R EGAN centralized control or in¢uence. Keeping the group united is relatively easy when under external threat. In times of peace or relative prosperity, it is more di©cult. Constant political attention will be required of Indigenous groups to maintain their cultural and kin-based cohesion as their relative economic position improves. One of the key ways to ensure such unity is to avoid an overcentralization of wealth that renders the constituents mere recipients of privatized welfare. Dependency on one’s own center is still dependency. And all dependency is ultimately resented. ere is no glue like the glue of equity. An active strategy of shared or joint economic enterprise between center and region with a strong sense of mutual beneªt might go a long way to minimizing the tendency to desegregate. And a strategically informed policy or investment, spread across the regions, will counteract desegregation and reduce the risk of parochial resentment. is may well be counterintuitive to the commercial rationale of a tribe’s investment advisors, who might criticize such a policy as political. However, if the alternative is a possible political breakup of the shareholder and its assets by desegregation, then an active strategy on behalf of the alignment I have spoken of would need to be emphatically presented. We also have to consider the huge impact of demographic change. By midcentury the Māori and Paciªc Island community in New Zealand will be third in the queue behind Pākeha and Asian. e Pākeha will be aging rapidly and the core taxpayers supporting them will be largely of non-European descent. e society will be dramatically more culturally and ethnically diverse. e young- est in my family, a great-grand-daughter, will be thirty-eight. Her adult world will be inªnitely more complex in a cultural sense than ours has been. At that midcentury there will be close to twice as many New Zealanders as there are now. What does this mean for Ngāi Tahu as a minority within a minority within a minority? What will be the political status of our settlement contracts with the Crown or of the Crown apology based around the principles of the Treaty of Waitangi? Will those things still matter? Do we formulate a strategic policy for our wider relationships beyond other Māori, beyond the Crown? With a wider world? On this last query, it is worth remembering that our own Ngāi Tahu relationships with Poihākena (Sydney) and China were fundamental to our ability to repel those northern invaders in the nineteenth century. Is that precedent enough for a more independent future? Is that where we are heading? We are already participating in trade missions to China and Japan and sending our T HE S HAREHOLDER W HO N EVER DIES ½Å own delegations to communities in other countries, both on our own as Ngāi Tahu with other Māori and sometimes as a component in government missions. What might this future duality of citizenship look like: New Zealand citizens, participating fully in the life of the nation-state, and citizens of the Ngāi Tahu nation, maintaining a distinct identity within a broader ethnic minority? I am comfortable enough with that duality. Will our successors feel the same? It is clear that I will have much to ponder from the comfortable security of my urupa, my graveyard on the hill! All the foregoing, though, begs the larger question. It is a question posed by our past experience that I have been recounting. It is inevitable that our successors will ªnd themselves in a comparable situation to that in which we found ourselves following the historic settlements of my generation. In , in , in , our children after us, and their children, will ªnd themselves in a di¤erent context. e demographic frame in which they exist and our traditional tribal culture will have further evolved. e majority culture surrounding them will be as di¤erent, as in our own case, from the world of our parents and grandparents. A quite di¤erent view of all that heritage and identity may then exist. Just as we found ourselves searching for ways to transform our concept of ourselves as a tribal nation, di¤erent from that which we had inherited, so might they. Our prescription for the future will by then be the past. We ourselves will be mere footnotes in their history, archival artifacts, framed photos on a meeting house wall. Will they still want to identify as Ngāi Tahu, to exist as a tribal people? Will they still cleave to their Ngāi Tahu identity and the heritage it carries? With reasonable attention to their ªnancial accounts in the interim, however, our successors will be able to address those issues from even better fortiªed positions. I trust that those positions will have been more strategically selected than ours were. We had no choice but to ªght from where we found ourselves. But in our time, we have gifted them with a power of choice denied to our own ancestors. At the very least, they should be able to wrestle with the challenges of their future unworried about a potential shortage of muskets! I have raised numerous questions here, and I have answered very few with any certainty. I am consoled a little by my awareness that many of these questions are being wrestled with by Indigenous minority communities around the world. From the perspective of what are generously described as one’s autumn years, it is comforting to know that we are not the only ones wondering whether or not our generation has been wasting its time. ½¼ S IR T IPENE O’R EGAN

Aristotle’s injunction “First, know thyself!” seems to have some resonance, but it remains, still, just a preliminary prescription. It is, however, a useful point from which the conversation I propose might be advanced.

NOTES

I am a supportive member, and a distinguished fellow, of New Zealand’s Institute of Directors, to whom, in the past, I have addressed papers titled “Managing the Shareholder Who Never Dies.” “Ngāi Tahu Review,” accessed September , , https:// ngaitahu .iwi .nz/ communications/ publications/ ngai -tahu - -review/.

REFERENCES

Campbell, R. . “ e Serf.” All Poetry. Accessed March , . https://allpoetry .com/ e -Serf. Te Rūnanga o Ngāi Tahu. . “Ngāi Tahu .” Christchurch. https:// ngaitahu .iwi .nz/ wp -content/ uploads/ / / NgaiTahu _ .pdf.

THE EVOLUTION OF INDIGENOUS SELFÈ GOVERNANCE IN CANADA

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OR CENTURIES, Indigenous peoples across Canada have struggled to reclaim their powers to make decisions, free from outside control, for Ftheir people, land, and water. Today, self-governance o¤ers a practical way for First Nations, Inuit, and Métis peoples (Indigenous Canadians) to assert more control over their own futures. In practice self-governance can provide the tools for Indigenous nations to rebuild their institutions, and to achieve collective outcomes in line with their own values. Self-governance is not an end point—the task of governing and adapting institutions to successfully govern in an increasingly complex world is an ongoing project. is chapter traces the development of self-governance in Canada, demon- strating that it is an ongoing negotiation, with the Crown seeking to a©rm its sovereignty and to locate Indigenous self-governance and sovereignty within Canada’s constitutional framework—and Indigenous nations asserting their own laws and agency, and actively rebuilding their institutions and legal orders to govern in their own ways. Within this dynamic context, Indigenous nations are pursuing one of three institutional strategies: maintaining the status quo (remaining with the paternalistic Indian Act legislation that has long governed much of their lives); adopting incremental governance pathways away from the Indian Act, such as focusing on electoral, taxation, and land management reforms; or choosing transformative pathways to achieve self-governance, such ½¾ W ILLIAM N IKOLAKIS as those approaches to be free from the Indian Act, like title claims, more comprehensive negotiations of the treaty process, and “just-do-it” approaches, where Indigenous nations are creating their own institutions and jurisdiction (with or without Canada). is chapter demonstrates that transformative approaches to self-governance are catalyzing new forms of institutions—which challenge Western political norms and values but o¤er promise for Indigenous nations to govern e¤ectively in a complex world. ere are constraints imposed by the Crown on what governance institutions should look like, and in seeking to shape Indigenous self-governance in the image of the liberal-democratic state, questions of legitimacy emerge: will those externally encouraged institutions have legitimacy with the governed, and how will the legitimacy issue a¤ect the work of governance? Chapters in this book by Stephen Cornell, Angela Wesley, and Garry Merkel (among others) document how complex a task institution building is—as nations painstakingly (and patiently) work toward a vision and design institutions to meet their collective objectives.

SOVEREIGNTY AND SELF¢ GOVERNANCE

Sovereignty and self-governance are important terms in pan-Indigenous politics, but these have di¤erent yet interdependent meanings in theory and practice. Sovereignty is a social, legal, and political construct—the term conveys absolute power over people, land, water, and natural resources, typically residing in the head of state. Self-governance is an arrangement where a collective governs its own a¤airs, as a unit or subunit of sovereign power. Self-governance has emerged through the struggles of Indigenous peoples for greater autonomy, and in turn, self-governance has reshaped sovereignty and governance theory. Sovereignty is a concept rooted in classical European political theory. e sovereign represents the fabric of European governance. e sovereign approves and enforces the law, and the sovereign is beyond reproach (“sovereign immunity”). Sovereignty is a valuable resource, to be held on to, and sometimes carefully delegated. While sovereignty was traditionally held by a monarch, over time this concept has evolved into a “sovereignty of the people.” Sovereignty is now interwoven into the liberal-democratic state, re¢ected in institutions like the democratically elected legislature (which gives expression to the “peoples’ sovereignty”), the executive branch (which exercises sovereign power), and an independent judiciary E VOLUTION OF I NDIGENOUS S ELFÈ G OVERNANCE IN C ANADA ½¿

(which both gives e¤ect to and provides checks on sovereign power) (R. Jackson ). e concept of sovereignty continues to evolve, and with the growth in power of multinational corporations and globalization, sovereignty is increasingly shared between the state and nonstate actors ( J. H. Jackson ). Gerry Stoker () describes this power sharing as the “new governance paradigm,” where instead of retaining decision-making power, the sovereign steers and coordinates a diverse range of private and public actors to achieve collective outcomes (using incentives rather than coercion to achieve these goals). Indigenous nations across Canada had exercised powers through their own institutions that resemble what political and legal theory considers to be sovereignty: they waged war and secured peace, created currencies, exercised foreign policy and treaty making, and more generally governed their own a¤airs and tried to deliver welfare outcomes to their peoples. In the course of colonization, these powers were annexed by the Crown, and Indigenous nations found themselves left out of the prevailing political order. Reclaiming some of these powers and reclaiming their right to be “self-governing,” free of outside interference, are central ambitions for many Indigenous peoples across the world. Self-governance could on the face of it be captured within this “new governance paradigm,” as the state devolves its powers to more decentralized “nodes” of power. However, self-governance is a process where Indigenous nations reclaim some of their sovereign powers and are not simply delegated powers. As Indig- enous nations reclaim self-governance within the ambit of the Canadian state, they are building their own institutions to exercise powers over matters important to them. It is important to note, however, that the powers exercised by Indige- nous Canadians through self-governance are distinct to those exercised by tribal nations in the United States, where their status as “domestic dependent nations” accords “tribal sovereignty” (like that described by Cornell earlier in the book) over lawmaking and law enforcement on-reservation (among other powers).

INDIGENOUS SELF¢ GOVERNANCE IN CANADA

FROM COLONIZATION TO MODERN TREATIES

During the sixteenth century, European settlers took root on the eastern seaboard of modern Canada. e Royal Proclamation, , issued by King George III, asserted the British Crown’s claims to sovereignty over parts of modern Canada and the United States, following the surrender of France and her ½À W ILLIAM N IKOLAKIS

American colonies in the Treaty of Paris. e Royal Proclamation provided that Indigenous peoples could continue to live on and use their lands but that the Crown, and only the Crown, could acquire these lands. is transfer of lands to the Crown could only occur after the relevant Indigenous peoples agreed to this transfer through their own collective decision-making processes. is collective agreement, and the ceding of land to the Crown, was typically documented in a written treaty. Around seventy recognized historic treaties cover much of Canada, concluded from the eighteenth century to (Government of Canada, n.d.). As European settlement moved westward across Canada toward modern British Columbia and the Paciªc Coast, fewer treaties were signed, and the Crown, driven by legal decisions and colonial policy, assumed sovereignty to these lands without settling with Indigenous nations through written treaty. Because of this, hundreds of Indigenous nations across British Columbia and other parts of Canada still to this day have their land claims unresolved. is situation was partially corrected by the Supreme Court of Canada in the Calder decision in , which brought into question the Crown’s sovereignty to those lands not already ceded to the Crown through treaty. In response, the federal government set in motion the modern treaty process to resolve this uncertainty.

THE INDIAN ACT

Canada assumed federal jurisdiction over the now pejorative term Indians and the lands reserved for these peoples at Confederation in (in section [] of the Constitution Act, ).· e Indian Act (), a federal statute still in existence today, consolidated earlier statutes governing First Nations peoples (and not Inuit or Métis peoples); it deªnes who is an “Indian” and prescribes what constitutes a designated collective or “Band.” e Indian Act speciªes an elected chief and council (band council) system for governing on-reservation lands (those lands set aside for the beneªt of First Nations through treaty or another assignment). e chief and council have a statutory mandate to make decisions for land use on-reservation and for preparing local bylaws. ese elected chief and council bodies usurped governing institutions that had been built over millennia in many Indigenous nations, and in the process disrupted local power structures and the social fabric of communities recovering from colonialism. Under the Indian Act, bands and their members are governed by federal government policies (which had included local Indian agents in the past to enforce E VOLUTION OF I NDIGENOUS S ELFÈ G OVERNANCE IN C ANADA ½Á these policies). Federal policies have been paternalistic and assimilationist, including restrictions on an individual’s movement o¤-reservation, and the prohibition on Potlach and other ceremonies that were important for the institutional fabric of communities.¸ For many Indigenous nations, escaping the Indian Act is a powerful goal that has spurred collective action and institutional reforms toward self-governance (Anderson, Dana, and Dana ; Alcantara ).

CONSTITUTIONAL RECOGNITION AND PROTECTION OF ABORIGINAL AND TREATY RIGHTS

In Canada repatriated the Constitution from the United Kingdom and created new provisions in a revitalized constitution, including a recognition and protection of Aboriginal and treaty rights (section [], Constitution Act, ).º ere are no clear deªnitions in the Constitution of what Aboriginal rights are, meaning there is uncertainty on what rights exercised by Indigenous peoples are a¤orded constitutional protection. ere were unsuccessful e¤orts to deªne and constitutionalize an “Aboriginal right to self-governance” from to in several Constitutional Conferences, as well as in the Meech Lake and Charlottetown Accords.» Canada penned an “inherent right” to self- government policy in , which deªnes this as a “right [for Aboriginal Peo- ples] to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, tradition, languages and institutions, and with respect to their special relationship to their lands and their resources” (Indian and Northern A¤airs Canada ). e Canadian government’s stated aim is not to develop a legal deªnition for what self-governance is but instead to negotiate agreements with Indigenous peoples on a case-by-case basis, to give practical e¤ect to self-governance and the powers to be exercised by these collectives. e courts, despite being relatively active in shaping constitutional Aboriginal and treaty rights, have given little expression to the inherent right of self-governance. In Campbell et al. v. British Columbia (Attorney General) et al., a trial court decision of the British Columbia Supreme Court held that the self-government provisions in the Nisga’a treaty were constitutionally valid as the Nisga’a have inherent rights to self-government that are constitutionally protected.¼ is decision, which enun- ciated the inherent right to self-government, has not been appealed and remains law. e most authoritative decision addressing the character of the right to self- governance is R v. Pamajewon, which e¤ectively limited the governance powers of ¾Ã W ILLIAM N IKOLAKIS

Aboriginal governments to those activities that predated European contact—in e¤ect, freezing these powers in time (Christie ).½

THREE INSTITUTIONAL PATHWAYS

Indigenous nations in Canada are responding to this evolving but uncertain self-governance context in three ways: sticking with the status quo Indian Act and trying to make it work; pursuing incremental approaches to the expansion of self-governing power; and pursing more comprehensive transformative approaches that imagine Indigenous developed governing institutions that are more responsive to Indigenous agendas.

STATUS QUO

e Indian Act is the status quo for many First Nations and their governance institutions. It provides broad control to the responsible minister over First Nations, their a¤airs, and their lands. Despite its pretensions to self-government, facilitating the creation of chief and council systems, few view it as genuine self- governance but rather a limited form of self-administration. For instance, Shin Imai () documented nearly ninety provisions that gave the minister for Indian A¤airs powers to make decisions for the band and council. For example, the minister can veto decisions of band councils, terminate band councils, and impose restrictions for on-reservation land use. Various amendments to the Indian Act have tried to limit the discretionary powers of the responsible minister. Some changes have allowed bands to take greater control over their a¤airs, such as elections and band membership, as well as legislative changes to allow First Nations to take greater control over land management on-reservation. But such changes are modest. e Indian Act remains an intrusive piece of legislation that strictly limits the governing power of First Nations. None- theless, it provides a form of governance with which many First Nations are familiar, and some have been reluctant to let it go.

INCREMENTAL

ere are at least two incremental pathways to increasing Indigenous governing power. e ªrst allows First Nations to take greater control of elections and E VOLUTION OF I NDIGENOUS S ELFÈ G OVERNANCE IN C ANADA ¾Â increase the terms of elected o©ce, which can potentially foster more political legitimacy and stability for these governments. e second provides First Nations greater control over land management and opens up more ¢exible ªscal arrangements on reserve. In regard to the ªrst of these, in the s nearly all First Nations came under the Indian Act. Every two years band members elected band councillors through a secret ballot, and the candidates with the most votes were elected to chief and council. Disputes over elections were considered by the minister, who then made recommendations to federal cabinet. Cabinet could then make a decision about whether to call another band election (Imai ). Many bands across Canada have now removed themselves from the election provision of the Indian Act (section ), implementing custom election codes approved through a community referendum. ese codes typically provide that the First Nation, not the minister, hears election disputes. ¾ Many custom election codes also extend the terms of chief and council from two to three or four years. rough these codes, some First Nations have also integrated customary practices into their election processes, such as the use of more traditional means of selecting a chief.¿ Joseph Quesnel and Kayla Ishkanian () found in that percent of First Nation communities across the country use custom election codes, while percent hold Indian Act elections. First Nations can also choose to run their elections through the First Nations Elections Act, which came into force in ; while the Indian Act still applies, the First Nations Elections Act replaces two-year terms of band councillors with four-year terms. e second incremental approach is focused on removing on-reservation land management from the onerous provisions of the Indian Act. First Nations adopting the First Nations Land Management Act of can increase their governing power over their lands by creating and implementing their own land codes. Among other things, these codes allow for more ¢exible lease- hold tenure arrangements on inalienable reserve lands, facilitating some forms of development. More than one hundred Aboriginal groups across Canada have signed on to this new land management regime. e First Nations Fis- cal Management Act of also provides more robust ªscal arrangements for First Nation governments, including access to real property taxes and to infrastructure funding. Under this incremental approach, the Indian Act remains in place on certain issues. In theory, however, nations using these provisions can achieve greater independence and ¢ex at least some political muscle by reducing their economic reliance on Canada, particularly from ¾Ä W ILLIAM N IKOLAKIS natural resources revenues (Nikolakis, Nelson, and Cohen ; Nikolakis and Nelson ). For o¤-reservation lands where band councils may not have jurisdiction, some First Nations have collectively authorized traditional institutions, such as hereditary chiefs, to make decisions on certain land management and business-related issues. An example of this is the Maaqutusiis Hahoulthee Stewardship Society, an entity composed of hereditary chiefs who represent all the houses (or family political units) of Ahousaht, on Vancouver Island’s West Coast. Here, a protocol agreement with the band council sets out how power is to be exercised and shared between the two entities, mitigating con¢ict.Â

TRANSFORMATIVE

Transformative approaches involve the creation of new Indigenous governance models that go beyond Canada’s incremental legislative provisions. For example, some Indigenous nations have engaged in self-governance negotiations where they can propose institutions of their own design. Such negotiations include the Comprehensive Land Claims process and other self-government tables (as of this writing, twenty-six such negotiations have been concluded); the Tsilhqot’in Nation are also negotiating self-governance after a declaration of Aboriginal title by the Supreme Court of Canada in ; ·Ã and First Nations are adopting “just-do-it” approaches, where they exercise governance over issues important to them, with or without the formal recognition of Canada. Transformative approaches often involve the formal sharing of powers between the Crown and Indigenous nations. ere are two forms of powers negotiated by the Crown and Indigenous nations: exclusive and concurrent powers. Exclusive powers are those essential to the operation of a government and at the core of sovereignty; for instance, the Crown views the exercise of military and foreign policy as exclusive to Crown sovereignty while powers related to culture and band memberships are typically viewed as exclusive to Indigenous nations, as these are integral to their distinct cultures and essential to the operation of their governments. Concurrent powers are those the Crown and Indigenous nations can exercise jointly, sharing jurisdiction on governance matters, courts and tribunals, policing, marriage, social services, taxation, property laws, education, health E VOLUTION OF I NDIGENOUS S ELFÈ G OVERNANCE IN C ANADA ¾Å services, and natural resources management, among others (Indian and Northern A¤airs Canada ). A harmonization of laws may be required for concurrent powers, or the Crown may simply recognize Aboriginal jurisdiction over these matters. Canada has shown a willingness to explore concurrent self-governance powers over ªsheries, gaming, environmental protection, and justice administration, although federal and provincial laws would prevail in any con¢ict with Aboriginal laws (Indian and Northern A¤airs Canada ). Transformative pathways for self-governance typically involve the design of new governance institutions that vary across nations and are increasingly becoming more pluralistic over time. Table . tracks the evolution of transformative governance institutions from the ªrst modern self-government arrangement in that produced the Cree Regional Authority in Quebec to the Dél˛ınę Got’˛ınę self-government agreement in the Northwest Ter- ritories. In table . there is a focus on three institutional domains.

e ªrst domain is elections and customary appointments of political o©cials, where citizen ballot and appointment of traditional leaders are being carefully integrated. e second domain is institutional design, where “blended Westminster models” are being developed that integrate traditional institutions with Westminster forms of governance (i.e., executive, legislative, and independent judiciary). An example of this blended approach is the inclusion of hereditary chiefs as permanent seats in the legislature. e third domain is participatory processes designed to facilitate more citizen engagement with government and to deepen democracy. For example, this is being achieved through People’s or Citizen’s Assemblies, where Indigenous governments can collectively adopt resolutions from citizens that inform the mandate of government. Such initiatives, by bringing Indigenous ideas about the appropriate organization of governmental authority into the reform process, have the potential to signiªcantly increase governmental legitimacy within the governed community and to enhance community cooperation with its own government. Empirical work in British Columbia by William Nikolakis and Harry Nelson () documented a positive bidirectional relationship between trust and transformative institutional development among First Nations governments. Participatory institutional building processes, they observed, likely helped rebuild the nation from the grassroots up and created positive interpersonal and political trust in the process. ¾¼ W ILLIAM N IKOLAKIS

TABLE .. Examples of negotiated institutions for self- governance, –

ELECTIONS/ GOVERNMENT PARTICIPATORY FIRST NATION APPOINTMENTS INSTITUTIONS PROCESSES

CREE NATIONAL Citizen ballot.1 Corporate representative No. 3 GOVERNMENT, model.2 QUEBEC ¥¦§¨

YUKON FIRST Citizen ballot Blended Westminster Yes.6 NATIONS, YUKON 5 and customary models. UMBRELLA FINAL 4 AGREEMENT ¥¨ appointment.

NISGA’A, BRITISH Citizen ballot.7 Blended Westminster Yes.9 COLUMBIA ¥§¨ model.8

NUNAVUT ¥¨ Citizen ballot.10 Westminster model.11 Yes.12

MAA¢ NUULTH: Citizen ballot Blended Westminster Yes.15 HUU¢ AY¢ AHT, 14 and customary model. BRITISH COLUMBIA 13 ¥¨ appointment.

DÉLĮNĘ GOT’ĮNĘ, Citizen ballot.16 Blended Westminster Yes.18 NORTHWEST model.17 TERRITORIES ¥¨

1 Directors are elected by secret ballot. 2 The Grand Council of the Crees (Eeyou Istchee) is the political representative body for eighteen thousand Crees, or “Eeyouch.” The Cree Regional Authority (CRA), created by statute, administers economic and community development, traditional pursuits, and culture and language programs. The board of directors of the CRA is the same as Eeyou Istchee and is made up of an elected grand chief (on four-year terms), as well as elected chiefs from nine Cree communities, and one elected representative from each of the nine Cree communities (on three-year terms). 3 There are no participatory governance processes, but each year the directors of the Cree Regional Authority present financial statements and their activities to members. 4 In Yukon there is variation in elections (Dacks 2004). Citizens elect councillors by ballot at the Selkirk First Nation. At the Teslin Tlingit their five clans appoint one representative each to the executive council (which also includes the CEO, a youth, and an elders representative) and five representatives each to the general council, for four-year terms. 5 At the Selkirk First Nation, the government consists of a council, which includes elected members as well as elected clan, elder, and youth councillors; an elder’s council, which is open to anyone over fifty-five years and appoints a principal elder; and family heads council, which has representatives of each major family who appoint spokespersons. At Teslin Tlingit Council, the government consists of an executive council, a general council (legislature), a justice council, and an elders council (which provides advice on laws). The five Teslin Tlingit Clans— Kukhhittan, Ishkitan, Yanyedi, Deshitan, and Dakhlawedi— are represented in and central to Teslin Tlingit Council governance. E VOLUTION OF I NDIGENOUS S ELFÈ G OVERNANCE IN C ANADA ¾½

6 Most Yukon First Nations have annual general assemblies where citizens can engage with leadership on a range of issues and set the political direction for their governments. Collectively, the Council of Yukon First Nations has a three-day general assembly each year, attended by delegates from each of the Yukon’s fourteen First Nations. 7 Members of Nisga’a Lisims Government (NLG) are elected. 8 NLG is composed of five parts: the Wilp Si’ayuukhl Nisga’a (an elected legislature); the executive; four village governments; a council of elders; and three urban locals (for those who live off treaty lands). The council of elders chairperson is elected and is a member the legislature and executive. 9 There is a biennial “special assembly” where government reports to citizens. The assembly is webcast to enable full citizen participation. An unelected council of elders provides advice to NLG on Ayuukhl Nisga’a (traditional law) and includes hereditary chiefs (Simgigat), matriarchs (Sigidimhaanak), and other prominent elders. 10 Government representatives are elected by Inuit and non-Inuit resident citizens (most of whom are Inuit peoples). 11 Self-governance in Nunavut is expressed through public administration, where individuals can be elected to the unicameral legislature or legislative assembly. There are no political parties and decisions are made through consensus. The Nunavut Court of Justice is the superior court of the territory. A council of eleven to fifteen elders, the Inuit Qaujimajatuqangit Katimajiit, are nominated for appointment and selected by the cabinet. This council advises the Nunavut government on Inuit Qaujimajatuqangit, or Inuit cultural and traditional knowledge. 12 The Plebiscites Act 2012 was created to encourage direct democracy in Nunavut. Voters can cast a ballot on important issues decided by a plebiscite authority, which includes the Nunavut government, a cabinet minister, a municipal council, an education authority, or any other person entering into an agreement with Elections Nunavut to conduct a plebiscite. 13 Huu-ay-aht First Nations Council (HFNC) members are elected. A permanent Ha’wiih (or hereditary chief) position is made available on the executive council. 14 HFNC is composed of an executive council, a legislature, and a tribunal. A Ha’wiih council determined through custom represents the seven houses of Huu-ay-aht, and the legislature must seek their advice before passing any law. A single Ha’wiih representative sits on the executive council. 15 An annual three-day “People’s Assembly” allows citizens to engage their government and propose motions that may be considered by the executive council. Travel and accommodation costs are provided to citizens to support attendance. 16 Citizens elect Délı̨nę Got’ı̨nę government representatives. One elder, or ʔǫhda, is appointed to Délįnę K’aowǝdó Kǝ (legislature). 17 Délı̨nę Got’ı̨nę government includes four parts: the Délįnę K’aowǝdó Kǝ (the legislature), which includes a council of six elected members on four-year terms, as well as the elected Ekw’atide (the “highest honest leader”), and a representative from the elders council; the elders council, or Délı̨nę ʔǫhda K’áowǝ Kǝ, is selected by the legislature from all Délı̨nę elders; a justice council, the Dene K’ǝ Dats’eredı Kǝ, hears disputes made up of three members; and a beneficiaries council made up of five members gives direction on land claim matters andmonies. 18 An annual general assembly is held for citizens to directly engage with the Délı̨nę government. ¾¾ W ILLIAM N IKOLAKIS

Table . shows that over time, governing institutions have become more integrated, and increasingly “Blended Westminster models” are being developed. In these blended models, traditional institutions are becoming more than simply advisory, and more substantive powers are available to clans, elders, or hereditary chiefs in their governance. “Blended” traditional and liberal-democratic models may achieve a version of what Stephen Cornell and Joseph P. Kalt () describe as a “cultural match” that, by organizing self-government along Indig- enous preferred lines, can produce more e¤ective governments that prioritize Indigenous goals and support a shared national identity among constituents. is shared identity can spur cooperation among actors to better achieve collective outcomes, such as political stability and economic development, which in turn can generate source revenues that can support growing populations. Indigenous nations engaged in transformative approaches are also increasingly engaging their citizens through more participatory processes, like peoples assemblies. However, rebuilding the nation from the citizen up requires more than simply meeting once a year, and in her chapter in this volume, Angela Wesley describes the process of building a shared identity among Huu-ay-aht people through a seven-year process for creating their Constitution. is face- to-face process of constitution building created ownership for citizens in their government, and it can support trust and better cooperation. ese negotiated or blended institutions do have their critics. Taiaiake Alfred (), for example, argues that self-governance agreements do nothing to address the broader power inequities in Canadian society but instead legitimate Crown sovereignty. Alfred views the modern treaty process as a continuation of the assimilationist Indian Act, which imposes these blended or modiªed liberal- democratic institutions on peoples that had developed their own governance institutions over millennia. Other critics of the transformative approach adopt an economic e©ciency lens, concluding that the political and economic costs of self-governance out- weigh the beneªts (Flanagan, Alcantara, and Le Dressay ). Tom Flanagan, Christopher Alcantara, and André point out that the Council of Yukon First Nations Self-Government Agreements took nearly eighteen years to conclude because of protracted negotiations and cost over CÇ million, while the Nisga’a treaty took twenty-four years to negotiate and cost over Ç million. Many of these costs are borne by the First Nations that are reclaiming self-governance. Flanagan and his co-authors observe that the Yukon and Nisga’a groups have not been able to e¤ectively engage with markets to achieve the desired economic E VOLUTION OF I NDIGENOUS S ELFÈ G OVERNANCE IN C ANADA ¾¿ outcomes to support self-governance, and that First Nations implementation of concurrent or shared powers in the Yukon have been di©cult, chie¢y because of a lack of institutional support from Canada and within the First Nations themselves (Flanagan, Alcantara, and Le Dressay ). Flanagan, Alcantara, and Le Dressay argue that incremental approaches focused on property rights and ªscal reforms may be more e©cient for groups than more transformative approaches. Alcantara () also agreed that incremental approaches are likely more appropriate for First Nations who have not already made real progress with self-governance. ese are critical issues, but one would have to ask whether the problem is the transformative approaches or the lack of su©cient support for those choosing to pursue transformative pathways, and Canada’s reluctance to get out of the way of Indigenous decision-making. Transformative approaches have the advantage of giving greater expression to Indigenous governmental norms and values, thereby increasing internal legitimacy and, potentially, governmental e¤ectiveness. Institutions that are legitimate and that deliver collective outcomes can promote cooperation and generalized trust in constituents, which in turn bolsters collective action and institution building (Delhey and Newton ). It may be that increased case study research can address some of these issues and inform the further evolution of Indigenous governance in Canada. In addition to the negotiated institutions presented in table ., there are “just-do-it” approaches where Indigenous nations go out and develop their own institutions to govern on issues important to them. is approach is considered transformative in this chapter, despite the Indian Act still being retained in some form. Just-do-it models are typically self-authoritative (like that described by Webber ), and Canada may not formally recognize these institutions. An example of this “just-do-it” approach is the Council of the Haida Nation, which is an entity that sits outside Canadian law. e Haida Constitution provides that fourteen members are elected by Haida citizens and includes two councillors from village band councils. A council of hereditary chiefs provides oversight on major issues. Law-making authority rests with Haida citizens, who can propose resolutions to the council at quarterly assemblies. e Haida Nation has co- governance with the Crown over tracts of Haida territory, including the Gwaii Haanas National Park reserve. Across Canada there are other nations designing and implementing their own institutions—how these develop is an important area for future research. ¾À W ILLIAM N IKOLAKIS

CONCLUSION

Self-governance is an important goal for Indigenous Canada to better support nation building, citizen well-being, economic independence, and for people to have greater control over their land and water. I have argued that we are seeing three institutional pathways—one retains the status quo or the Indian Act, and two of these are toward self-governance: incremental and transformative approaches. Why groups pursue one or another of these pathways may be in¢uenced by a range of factors. ese factors include their recent experience of governance, particularly under the Indian Act; the speciªc circumstances they face; the costs and beneªts of each pathway; and internal discussions and views of what is possible and appropriate for them. Institutions are developed to meet particular goals that may be culturally driven in part as well as context speciªc. Over time, communities are likely to reªne their institutions and their components to meet changing goals; changing legal, political, and economic conditions; and their own evolving cultures. Additionally, the actors involved in the design of such institutions are themselves diverse and bring diverse experiences and cultural perspectives to the task. Negotiated institutions are mediated in their design by divergent ideologies and worldviews, from liberal-democratic perspectives held by the state to perspectives on Indigenous identity and sovereignty held by Indigenous peoples. e end product is likely a political compromise that may or may not ªt the purpose. What is most important is for institutions to produce outcomes desired by Indigenous peoples themselves, in ways consistent with their norms and values. at demands both strategic clarity on the part of those peoples—what do they want?—and the freedom to design (and redesign) institutions so they can achieve what they want. Creating the space to think strategically, and the support to design, implement, and evaluate institutions, is fundamental for the success of self-governance going forward.

NOTES

Earlier versions of this chapter were reviewed by Gordon Christie, Peter A. Allard School of Law, University of British Columbia. I acknowledge this support and insight. E VOLUTION OF I NDIGENOUS S ELFÈ G OVERNANCE IN C ANADA ¾Á

Only after court challenges were Inuit ( ) and Métis peoples () brought within the ambit of section () of the Constitution Act, ; they do not fall within the ambit of the Indian Act. Section of the Indian Act () prohibited collective ceremonial gatherings and lasted from to . In R v. Sparrow [] S.C.R. , at , the Supreme Court of Canada ruled that section () of the Constitution shapes the exercise of legislative power, and the Crown bears the burden of justifying any legislation that negatively impacts Aboriginal rights protected under this provision. e Charlottetown Accord, Draft Legal Text, October , , provided proposed additions to section () of the Constitution, including the “authority of duly constituted legislative bodies of the Aboriginal peoples, each within its own jurisdiction, (a) to safeguard and develop their languages, cultures, economies, identities, institutions and traditions, and (b) to develop, maintain and strengthen their relationship with their lands, waters and environment” ( – ). Campbell et al. v. British Columbia (Attorney General) et al. [] B.C.S.C. . R v. Pamajewon [] S.C.R. . Note that these disputes are also reviewable by the courts. For example, the Mowachaht/Muchalaht First Nation on Vancouver Island appoints ªve hereditary chiefs to their band council. See Maaqutusiis Hahoulthee Stewardship Society, “Protocol,” October , , http:// www .mhssahousaht .ca/ protocol. e Nenqay Deni Accord (or the “People’s Accord”) was concluded between the Tsil- hqot’in National Government and British Columbia and outlines commitments by parties to negotiate and to reach agreement on the following priority areas (or the “Eight Pillars of Reconciliation”): governance, economic development, justice, health, education, social issues, and land and resource management. e parties committed to negotiating and reaching agreement, and that the Tsilhqot’in Nation would be recognized as a government within Canada, with lawmaking jurisdiction over Tsilhqot’in citizens, lands, and resources.

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Christie, G. . Aboriginal Nationhood and the Inherent Right to Self-Government. West Vancouver: National Centre for First Nations Governance. Cornell, S., and J. P. Kalt. . “Where’s the Glue? Institutional and Cultural Foun- dations of American Indian Economic Development.” Journal of Socio- Economics (): – . Dacks, G. . “Implementing First Nations Self- Government in Yukon: Lessons for Canada.” Canadian Journal of Political Science ( ): – . Delhey, J., and K. Newton. . “Who Trusts? e Origins of Social Trust in Seven Societies.” European Societies (): – . Flanagan, T., C. Alcantara, and A. Le Dressay. . Beyond the Indian Act: Restoring Aboriginal Property Rights. Montreal: McGill- Queen’s University Press. Government of Canada. n.d. “Treaties and Agreements.” Ottawa. Accessed March , . https:// www .rcaanc -cirnac.gc .ca/ eng/ / . Imai, S. . “ e Structure of the Indian Act: Accountability in Governance.” Research paper for the National Centre for First Nations Governance, Ottawa, Canada. Indian and Northern A¤airs Canada. . “ e Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self- Government.” Government of Canada, Ottawa. https:// www .aadnc -aandc .gc .ca/ eng/ / . Jackson, J. H. . “Sovereignty-Modern: A New Approach to an Outdated Concept.” American Journal of International Law (): – . Jackson, R. . “Sovereignty in World Politics: A Glance at the Conceptual and His- torical Landscape.” Political Studies ( ): – . Nikolakis, W., and H. Nelson. . “To Log or Not to Log? How Forestry Fits with the Goals of First Nations in British Columbia.” Canadian Journal of Forest Research (): – . Nikolakis, W., and H. Nelson. . “Trust, Institutions, and Indigenous Self-Governance: An Exploratory Study.” Governance, : –. Nikolakis, W., H. Nelson, and D. Cohen. . “Are Indigenous Peoples Important to Sustainable Development? Evidence from Socially Responsible Investment Mutual Funds in North America.” Organization and Environment (): – . Quesnel, J., and K. Ishkanian. . Custom Election Codes for First Nations: A Double- Edged Sword. Vancouver: Fraser Institute. Stoker, G. . “Governance as eory: Five Propositions.” International Social Science Journal (): – . Webber, J. . “We Are Still in the Age of Encounter: Section and a Canada Beyond Sovereignty.” In From Recognition to Reconciliation: Essays on the Constitu- tional Entrenchment of Aboriginal and Treaty Rights, edited by P. Macklem and D. Sanderson, – . Toronto: University of Toronto Press. ¬

NGARRINDJERI NATION BUILDING

Securing a Future as Ngarrindjeri Ruwe/Ruwar (Lands, Waters, and All Living Things)

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Ngarrindjeri Vision for Country Kungun Ngarrindjeri Yunnan (Listen to what Ngarrindjeri people have to say) Our Lands, Our Waters, Our People, All Living ings are connected. We implore people to respect our Ruwe (Country) as it was created in the Kaldow- inyeri (the Creation). We long for sparkling, clean waters, healthy land and people and all living things. We long for the Yarluwar-Ruwe (Sea Country) of our ancestors. Our vision is all people Caring, Sharing, Knowing and Respect- ing the lands, the waters and all living things. NGARRINDJERI NATION ,

HE NGARRINDJERI Nation in southern South Australia is working toward a secure future for Ngarrindjeri Ruwe/Ruwar (lands, waters, Tand all living things). Ngarrindjeri Ruwe/Ruwar is the term for the fundamental interconnection between Country, body, and spirit. Ngarrindjeri believe that for the people to be healthy, the lands and waters need to be healthy. At the start of the new millennium, South Australia was plunged into a serious drought that severely restricted the ¢ow of water through Ngarrindjeri Country, massively impacting the health of the lower River Murray, Lakes Alexandrina and Albert, and the Coorong. e entire River Murray estuary here is identi- ªed as a Ramsar Wetland of International Importance and part of the broader Murray-Darling Basin (see Phillips and Muller ). is region supports a fragile ecology where the “Meeting of the Waters” takes place, as fresh water combines with ocean saltwater in the tidal ¢ows of the river mouth (see Bell ¿Ä S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG

; Hemming, Trevorrow, and Rigney , ). is area is a vital creation place for Ngarrindjeri and a habitat and breeding ground for many Ngarrindjeri ngartji (totems—friends). In , in the midst of the Millennium Drought, Ngarrindjeri elders and leaders developed a public “Vision for Country” as part of the ªrst “Ngarrindjeri Nation Yarluwar-Ruwe Plan: Caring for Ngarrindjeri Sea Country and Cul- ture”—a document that provides a plan for the Ngarrindjeri Nation in pursuit of self-determination and a secure and healthy future (see Hemming, Rigney, and Pearce ; Ngarrindjeri Nation ; Hemming and Rigney ). A community-appointed Ngarrindjeri governance working party led the development of the “Yarluwar-Ruwe Plan” with guidance and input from key elders.· e plan was endorsed at a Ngarrindjeri Nation meeting and is formally recognized by the South Australian government in regional policies and planning.¸ e Ngarrindjeri “Vision for Country” and related goals informed the historic Kungun Ngarrindjeri Yunnan Agreement (KNYA) (“listen to Ngarrindjeri people talking”) negotiated in by Ngarrindjeri leaders and the state of South Australia (see KNYA ; Hemming and Rigney , ; Hemming, Rigney, and Berg ). e inaugural “KNYA Taskforce Report –” begins with the following acknowledgment of the Ngarrindjeri as traditional owners of Ngarrindjeri lands and waters.

e South Australian Government acknowledges Ngarrindjeri are the Traditional Owners of the land and that according to their traditions, customs and spiritual beliefs its lands and waters remain their traditional country. e State also acknowledges and respects the rights, interests and obligations of Ngarrindjeri to speak and care for their traditional country, lands and waters in accordance with their laws, customs, beliefs and traditions. (DEWNR and NRA , )

In this chapter we tell the story of Ngarrindjeri resistance and strategic transformation since the mid-s, which led to the development of a new peak governance body in , the Ngarrindjeri Regional Authority (NRA), and the unique KNYA agreement-making strategy (listen to what Ngarrindjeri are saying). We have published aspects of this story in other spaces, but in this chapter our focus is on Ngarrindjeri Nation (re)building in the context of water and natural resource management, and the development of new engagement mechanisms in what we characterize as a reassembled contact zone (see, for example, Pratt ; Hemming and Rigney , , ; Hemming, Rigney, and Berg N GARRINDJERI N ATION BUILDING ¿Å

; Rigney, Bignall, and Hemming ; Bignall, Hemming, and Rigney ; Hemming et al. ; Hemming et al. ). To structure our narrative of Ngar- rindjeri nation building, we draw on Paciªc Rim Indigenous nation-building principles identiªed in the work of the Harvard Project on American Indian Economic Development: identify, organize, act (see Cornell a, b). Apply- ing these principles to the South Australian context, we identify key features of the Ngarrindjeri Nation’s pathway to securing a future in the face of intense and complex forms of colonization. Crucial in the Ngarrindjeri choice of pathways is an acute awareness of the “cunning of recognition” embedded in the state’s existing processes for “protecting” Aboriginal heritage, managing natural resources, and legally recognizing Native title claims (see Povinelli ; Hemming and Rigney ). By this we are referring to the debilitating authenticity tests contained in legislative forms of protection or recognition of Indigenous “rights” in Australia. For Ngarrindjeri to identify, organize, and act as a sovereign First Nation requires a theorization of contemporary forms of South Australian settler colonialism, the identiªcation of their genealogies, and a clear understanding of the actor networks or assemblages that reinforce colonizing relations of power (see, for example, Deleuze and Guattari ; Smith ; Latour ; Wolfe ; Hemming ; Bignall , ; Byrd ). Ngarrindjeri agreement-making strategies, for example, resist the paternalism and Aboriginalism of Australian forms of protection and recognition, beginning with a requirement that non-Indigenous parties to KNYAs recognize the Ngarrindjeri Nation as the “traditional owners” of Ngarrindjeri lands and waters. is recognition is required as the foundation of a new respectful and collaborative relationship between Ngarrindjeri as an Indigenous First Nation and external parties such as the Australian settler state. Ngarrindjeri are proud that the only treaty they have signed is with other Indigenous nations, as parties to the treaty forming the United League of Indigenous Nations.º

Ngarrindjeri Nation goals— Our Goals are:

For our people, children and descendants to be healthy and to enjoy our healthy lands and waters. To see our lands and waters healthy and spiritually alive. For all our people to bene£t from our equity in our lands and waters. ¿¼ S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG

To see our closest friends—our Ngartjis (special animals)—healthy and spiritually alive. For our people to continue to occupy and bene£t from our lands and waters. To see all people respecting our laws and living in harmony with our lands and waters.(Ngarrindjeri Nation , )

SOVEREIGN ACTS OF RESISTANCE AND IDENTIFICATION

Central to the Ngarrindjeri story is the political and legal battle to be “recognized” by the state of South Australia as the “traditional owners” of Ngarrindjeri lands and waters.» Ngarrindjeri have been declared extinct by generations of settlers, written out of South Australian histories or relegated to the designation of “half-caste fringe dwellers” with no authentic Aboriginal culture (see Jenkin ; Hemming ). e struggle to overturn narratives of extinction, erasure, and “indigenocide” intensiªed in the s and included a Royal Commission into Ngarrindjeri traditions; a High Court case; the lengthy negotiation of a whole-of-government contract law agreement; a Speaking as Country Deed; and ongoing, settled and unsettled, Native title claims (see Stevens ; Hem- ming ; Bell , ; Evans and orpe ; Simons ; Berg ; Hemming et al. ; White ). From these struggles, Ngarrindjeri leaders and key advisers have developed a theorized, legally based strategy for reconstituting the relationship between the Ngarrindjeri Nation and the state of South Australia. is strategy is built on the essential, fundamental interconnection between Ngarrindjeri, the lands, waters, and all living things. It emerges from a holistic approach to “Caring as/for Country” that resists Western constructions of natural and cultural resource management as separate domains and insists that Caring as Country is a sovereign expression of Ngarrindjeri lawful responsibility and contemporary nation (re)building (see Bignall, Hemming, and Rigney ; Hemming et al. ). Early in its inception, the NRA developed a Ngarrindjeri Yarluwar-Ruwe (Sea Country) program to take responsibility for this Ngarrindjeri transformative strategy, acting as a contact point for all non-Indigenous projects and engagements associated with Ngarrindjeri Yarluwar-Ruwe. e work of this program is guided by the “Yarluwar-Ruwe Plan” that encapsulates the Ngarrindjeri approach to identifying as a nation, organizing as a nation, and acting as a nation. e following key statements and goals guide the actions of the NRA as the peak body of the Ngarrindjeri Nation. N GARRINDJERI N ATION BUILDING ¿½

ÔÕÖ××ØÙÚÛÜ×Ø ÝÜÕØÞÙÖß àáâãÞ×Øâä Caring for our people, lands, waters and all living things Building our nation Securing our future

åÞÖßæ Strong Culture Sovereign First Nation Secure Future Healthy Country Con£dent People Creative Economy Respected History Regional Leader Working together for a strong, healthy and sovereign Ngarrindjeri nation Honouring our People

In this chapter we focus our attention on what we term Indigenous nation- (re)building strategies in water and natural resources management (NRM) and cultural heritage management (CHM), led by Ngarrindjeri elders and leaders in the South Australian Murray-Darling Basin (SAM-DB) (see Hemming and Rigney , ; Hemming et al. ; Hemming et al. ).¼ In pursuit of increased understanding and materialization of what can be “translated” as Ngarrindjeri “onto-epistem-ology,” the NRA negotiated a “posthuman” legal recognition through a “Speaking as Country Deed” with the South Australian government (see Barad ; Braidotti ; NRA and MSEC ). is deed further operationalizes a Ngarrindjeri philosophy of being in local and national management plans “governing” the Lower Murray region. “Speaking lawfully as country” (yannarumi) is a sovereign act of identiªcation and a form of “expres- sivist philosophy” that materializes the fundamental interconnections between people, nation, and country. Yannarumi foregrounds Ngarrindjeri authority and decision-making practices (see Bignall, Hemming, and Rigney ; Hemming et al. ; Hemming et al. ). An important example of the transformative reach of the Ngarrindjeri nation-building strategy can be found in the Lower Lakes, Coorong and Murray Mouth Environmental Water Management Plan (M-DBA ). is in¢uential national government plan recognizes the NRA as the peak body of the Ngar- rindjeri Nation, the “Yarluwar-Ruwe Plan” as a crucial planning document, and ¿¾ S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG the KNYA as foundational to the state’s relationship to the Ngarrindjeri Nation. Fundamental to Ngarrindjeri methodologies for interacting with non- Indigenous agencies is the development of the contract law, a KNYA strategy (see Hemming, Rigney, and Berg , ). Once legally sound relationships are established using contract law rather than through memoranda of understanding or restrictive legislated processes, then productive partnerships have burgeoned with government agencies, in particular the Alexandrina Council and the South Australian Department of Environment, Water and Natural Resources (DEWNR) and its forbears (see Hemming and Trevorrow ; Hemming and Rigney ; DEWNR and NRA , ). Building internal capacity is an urgent priority in the nation-(re)building goals of the NRA, and the KNYA strategy expects resourcing as an active, researching, planning, and implementing partner in projects that impact Ngar- rindjeri country. is means that Ngarrindjeri develop the institutional form required to act collectively. Resisting settler engagement methodologies that use language such as stakeholders and consultation and tools such as “heritage” surveys is vital to asserting and maintaining Ngarrindjeri agency as a creative, resilient First Nation. rough major partnership projects with South Australian government agencies and federally funded programs such as Mur- ray Futures, resources have been secured and directed at building Ngarrindjeri capacity to sustain ongoing responsibilities to Caring as Country, including water-related research, policy development, planning, and management (see DEH ; Hemming and Rigney ). is capacity is essential for Ngarrind- jeri to exercise cultural responsibilities as a First Nation within a settler state, like that discussed by Ronald Trosper in this volume. It is important to remind international readers that in southern South Australia there are no treaties and only limited land rights attainable through Native title claims. What is clear from a preliminary assessment of relevant Australian and international literature is that Ngarrindjeri nation-building strategies share characteristics with other First Nations in Paciªc Rim settler democracies (see Cornell b; Rigney, Bignall, and Hemming ; Vivian et al. ).½ Ngarrindjeri resistance and transformative strategies are also, however, “situated knowledges,” with unique characteristics, making them useful as a source of ideas for Indige- nous engagements with “environmental management” in Australia and overseas (Haraway ). Rather than beginning with treaties to secure “rights” from the settler nation-state, Ngarrindjeri have developed transformational technologies that assert sovereignty, extend and establish jurisdiction, and develop governance as a pathway to securing rights. It is also clear that recognition of the N GARRINDJERI N ATION BUILDING ¿¿ existing and developing programs in South Australia is partial but growing through the work of the KNYA task force, and the public programs of the NRA (see KNYA ; Hemming and Rigney , ; Cosens and Cha©n ). is includes a long-term partnership between Flinders University and the NRA in promoting innovations through joint research projects, publications, conference presentations, and input on new policy development. For the purposes of understanding the trajectories of reception of Indigenous nation building, we ªnd that national and international knowledge of South Australian innovations is growing in some sectors but surprisingly limited in the burgeoning Australian literature on Indigenous people and water management issues (see Hemming et al., forthcoming).¾ We have argued elsewhere that this can be partially explained by the strong Indigenous nation-building approach argued in Ngarrindjeri publications rather than the more usual focus on improved government mechanisms for “incorporating” Indigenous knowledge and values into water planning (see Hemming et al. ). ere is also a signif- icant knowledge gap in state and federal Indigenous a¤airs of the contribution of major federally funded environmental management programs such as Mur- ray Futures to the development of Indigenous-led, collaborative innovations in Indigenous “comanagement” of “country”—including environmental water management, wetlands planning, Ramsar Icon Site research and management, and barrage manipulation.¿ We argue in this chapter that South Australia has developed a form of what can be described as “partial Indigenous comanagement” that has been Indigenous-led and characterized by Ngarrindjeri nation building.Â Moving toward comanagement provides Ngarrindjeri with stronger “recognition” of lawful responsibilities for Ruwe/Ruwar and the opportunity to consolidate programs focused on Caring for/as Country that contribute directly to a healthy Ngarrindjeri Nation.

INDIGENOUS ENGAGEMENTS WITH WATER MANAGEMENT IN THE SOUTH AUSTRALIAN MURRAY¢ DARLING BASIN

Since South Australia’s establishment as a British colony in , Indigenous peoples have struggled to protect their cultures, communities, land, and water (see Mattingley and Hampton ; Berg ; Trevorrow et al. ). In southern South Australia, colonization has perhaps been the most intense, but Indig- enous nations such as the Ngarrindjeri have maintained a strong connection ¿À S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG to country and a cultural tradition of Ruwe/Ruwar. As a result of this colonial history of dispossession and oppression, Ngarrindjeri and other Indigenous nations have very limited “rights” to water and other natural resources except indirectly through a weakened Native title regime and even more indirectly through the Aboriginal Heritage Act () (South Australia) (see McFarlane ; Hattam, Rigney, and Hemming ; Weir and Ross ; Weir , ; Jackson ; Jackson et al. ; Neale and Turner ). Historically, when water licenses became available along the River Murray, Ngarrindjeri people were still living under protectionist legislation on former missions or in fringe camps and could not legally apply. In comparable settler democracies such as Canada, the United States, and New Zealand, there is much stronger recognition of Indigenous rights to land and water (see Veeder ; Langton et al. ; Strelein ; Hemming et al. ; Tan and Jackson ). From the earliest years of invasion Ngarrindjeri have drawn attention to the damaging changes being made to Ngarrindjeri country (see Walker ; Ngarrindjeri Nation ). For example, Ngarrindjeri argue that the draining of South Australia’s South-East has had damaging e¤ects on the ¢ow of water into the Coorong and into the Lower Murray region more generally. Along the River Murray there have been a series of interventions with devastating ecological impacts and consequences for the lives of Ngarrindjeri people. ese interventions include the draining of wetlands/nurseries, the overallocation of water for industrial use and human consumption, and the building of levee banks and barrages to facilitate industries such as dairy farming and fruit growing. In the early twenty-ªrst century, during the decade-long Millennium Drought, Ngarrindjeri leaders made the following statement of unique identity regarding the health of the Coorong, Lower Lakes, and Murray Mouth Ramsar sites (Hemming, Trevorrow, and Rigney , ).

e land and waters is a living body. We the Ngarrindjeri people are a part of its existence. e land and waters must be healthy for the Ngarrindjeri people to be healthy. We are hurting for our country. e Land is dying, the River is dying, the Kurrangk (Coorong) is dying and the Murray Mouth is closing. What does the future hold for us? N GARRINDJERI N ATION BUILDING ¿Á

With changing freedoms after the famous federal referendum, which gave the federal government constitutional powers to legislate for Aboriginal people, Ngarrindjeri began a new strategy of building better “race” relations with the non-Indigenous community. e Ngarrindjeri (re)conciliation strategy has continued to the present and became a focus in the s with the establishment of Camp Coorong: Race Relations and Cultural Education Centre (see Hemming and Rigney ; Rigney and Hemming ). Central to this Indigenous communication and educational program are Ngarrindjeri stories, histories, and lessons with a message for non-Indigenous people to develop a respectful, health-giving relationship with Ngarrindjeri land and water. In the early s, using new Aboriginal heritage legislation, Ngarrind- jeri men and women argued that the water around Kumarangk (Hindmarsh Island—near the mouth of the River Murray) is spiritual and crucial for the life of the Ngarrindjeri Nation. ey argued that building a bridge between the mainland at Goolwa and Kumarangk would do irreparable damage to the spiritual context of the region and, therefore, the health of the river, the lakes, the Coorong, and all connected living things (see Stevens ; Bell , ; Saunders ; Hemming and Trevorrow ). In a Royal Commis- sion was established to investigate these traditions, and its ªndings rejected the validity of the Ngarrindjeri traditions (see Stevens ; Simons ). In response, Ngarrindjeri leader Tom Trevorrow (now deceased) asked at the time:

What gives people the right to forcefully dominate another race of people, humil- iating them and then attempting to destroy their way of life, their beliefs, their heritage? Is it greed? Power? Ignorance? Racism? Or politics? Whichever, it seems there are still two laws in this country, one for the Blackfella, another for the Whitefella. (Trevorrow , – )

Subsequently, in a decision by Justice John von Doussa, the Federal Court of Australia supported the Ngarrindjeri claims to the cultural and spiritual signiªcance of the “Meeting of the Waters” and the Kumarangk area (von Doussa ). e Meeting of the Waters “site” has been registered under the Aboriginal Heritage Act () and is becoming recognized as signiªcant to NRM and water planning in South Australia and the broader M-DB (Hem- ming ; M-DBA ). Indigenous nations and their interests in water, for example, have only recently received recognition from non-Indigenous ÀÃ S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG governments and agencies across the broader M-DB (see Morgan, Strelein, and Weir ; M-DBC ; Hattam, Rigney, and Hemming ; Hem- ming, Rigney, and Pearce ; Jackson, Moggridge, and Robinson ; Weir , ; Jackson ; M-DBA , ). While recognition is slow, the continuing work of Indigenous regional alliances, organizations, and leaders has led to the inclusion of requirements for Indigenous engagement in water planning in the new Murray-Darling Basin Plan (see M-DBA ; MLDRIN ; NBAN ; NRA ; Weir ). Always included in Indigenous calls for a just recognition of rights is an appeal for non-Indigenous researchers and natural resources managers to shift their understandings of the relationship between humans and nonhumans—conceived in Western terms as the divide between “nature” and “culture” (see Latour ; Morgan, Weir, and Strelein ; Dhimurru ; Langton ; Ngarrindjeri Nation ; Hemming and Rigney ; Weir ; Birckhead et al. ; FPWEC ; MLDRIN ; NBAN ; NRA ; Braidotti ; Bignall, Hemming, and Rigney ). Ngarrindjeri philosophies of being and histories of dispossession are re¢ected in some M-DB policy and planning. e following quote provides an important example.

Since the arrival of Europeans the Ngarrindjeri witnessed the draining of their wetlands along the rivers, and in the south east, and the disconnection of the living body of the River Murray, Lower Lakes and Coorong through the installation of locks, levee banks and barrages. ey have watched their ngartjis (totems) diminish, their lands cleared and the degradation of Yarluwar-Ruwe. (M-DBA , )

IDENTIFY, ORGANIZE, AND ACT: NGARRINDJERI SPEAKING AS COUNTRY

From the s on, Indigenous people in Australia began to pursue an agenda of self-determination, land rights, and treaties. Ngarrindjeri leaders prioritized a process of nation identiªcation, internal organization, and collective action directed toward the development of a healthy future for Ngarrindjeri people and for Ngarrindjeri Ruwe/Ruwar (see Ngarrindjeri Nation ; Hemming and Rigney ; Cornell b). Since the well-being of the Ngarrindjeri Nation has been the responsibility of the NRA as the nation’s peak body. From N GARRINDJERI N ATION BUILDING ÀÂ the early twenty-ªrst century, the KNYA model for negotiated engagement between Ngarrindjeri and the settler state became a central strategy. is model developed from engagement in what is characterized in Australia as Indigenous “Caring for Country” and cultural heritage management—legislative, policy, and bureaucratic regimes that address claims of Indigenous rights, responsibilities, and interests in their lands and waters. KNYAs are based on the principle that Ngarrindjeri Yarluwar-Ruwe (Sea Country—all Ngarrindjeri land and water and living things) encompasses a unique responsibility to “Caring for/as Country.” rough entering into KNYAs, the settler state’s approach to “environmental management” becomes connected to, and “resources,” a holistic nation-building project designed to create healthy Ngarrindjeri futures. e NRA’s guiding responsibility, “caring for our people, lands, waters and all living things,” frames its goals as the peak body for the Ngarrindjeri Nation. is Indigenous governance model, combined with the high-level KNYA engagement model, provides this part of Australia’s M-DB with well-developed structures and practices designed to support just and e¤ective Indigenous engagement in water research, policy development, and management. Importantly, this reshaping of contemporary “contact zone relations” has created new opportunities for Ngarrindjeri to transform water research, policy, and planning through initiatives such as the M-DBA’s Living Murray Program, regional Ramsar wetland site management, South Australian environmental water planning, South Australian Murray Futures projects, and the broader South Australian response to the recent drought (see Hemming, Rigney, and Berg ; DEWNR and NRA ; Hemming and Rigney , ; Kirby et al. ; Hemming et al. ).·Ã Radical changes to the character of contact zone relations has required high-level agreements between the state of South Australia and the Ngarrindjeri Nation to begin to set the terms of a new partnership between what Ngarrindjeri assert are two sovereign parties. An indication of the nature of this new partnership can be found in the inaugural “KNYA Taskforce Report –,” which begins with the following acknowledgment of the Ngarrindjeri lawful responsibility as traditional owners of Ngarrindjeri land and water.

acknowledges and respects the rights, interests and obligations of Ngarrindjeri to speak and care for their traditional country, lands and waters in accordance with their laws, customs, beliefs and traditions. (DEWNR and NRA , )

is recognition is repeated in the recent M-DBA’s Environmental Water Man- agement Plan for the Ramsar Icon site that covers the Ngarrindjeri “Meeting of the Waters.” It states that the “Ngarrindjeri Nation is acknowledged as the traditional owner of the country that includes the Lakes, Kurangk (Coorong) and Murray Mouth” (M-DBA , ). Federally and locally the NRA is acknowledged by non-Indigenous governments as the peak representative body for the Ngarrindjeri Nation. Inspired by its success, the state government introduced a new policy direction in Indigenous a¤airs aimed at establishing Aboriginal Regional Authorities across South Australia (see Department of Premier and Cabinet ). e establishment of the NRA emerged from the Ngarrindjeri leadership’s long-term aim of continually improving the well-being of Ngarrindjeri Ruwe/ Ruwar. Much of the energy in this process has been directed toward improving governance, caring for country programs with associated economic development opportunities, and creating new relationships with government at all levels to achieve these objectives.·· e NRA is critical to a program of Indig- enous nation (re)building, providing a centralized point of contact between non-Indigenous interests and the Ngarrindjeri Nation. is is a new way of doing business formally recognized by non-Indigenous governments at local, state, and federal levels. For the settler state to recognize the NRA as a peak Indigenous body, it has been required to exhibit good representative governance. e NRA Board is broadly constituted with representation from key Ngarrindjeri community organizations, formal representation of key bodies and committees such as the Tendi (traditional governance body), and heritage and Native title, and it includes annual elections of community members to the board. Before the NRA was established, the Ngarrindjeri Native Title Management Committee, the Ngarrindjeri Heritage Committee, and the Ngarrindjeri Tendi worked together to represent the Ngarrindjeri Nation. In the NRA negotiated a whole-of-government KNYA between the Ngarrindjeri and the South Australian government to formalize the Ngar- rindjeri strategy for negotiating Ngarrindjeri interests in NRM, and to frame N GARRINDJERI N ATION BUILDING ÀÅ

Ngarrindjeri engagement in the South Australian government’s long-term plan for the Coorong, Lower Lakes, and Murray Mouth (see KNYA ; DEH ; Hemming, Rigney, and Berg ; Hemming and Rigney ). is is a legally binding agreement entered into between Ngarrindjeri and the Crown in South Australia. e KNYA provides for the establishment and funding of a joint taskforce that creates a formal context for the NRA to negotiate regarding government programs on Ngarrindjeri Yarluwar-Ruwe. e agreement includes a recognition of Ngarrindjeri traditional ownership; the NRA as the Ngarrind- jeri peak body; and an agreement to negotiate on key, long-held Ngarrindjeri objectives, such as the handing back of national parks. e NRA continues to reinforce the need for a shift in the use of government resources for Indige- nous NRM programs to prioritizing the provision of long-term support to develop the NRA’s capacity to e¤ectively respond to government demands on Ngarrindjeri “informed consent,” and Ngarrindjeri “participation” in the state’s environmental programs.·¸ e KNYA and the KNYA Taskforce have provided the primary Indigenous engagement mechanism for “environmental” water planning in the SAM-DB region. Membership of the KNYA Taskforce includes relevant state government departments, the South Australian Water Corporation, and the Environmental Protection Authority.·º

TRANSFORMING CROWN¢NGARRINDJERI RELATIONS THROUGH CONTRACT LAW

e KNYA Taskforce is a radically new kind of interaction with Indigenous people for South Australian government employees and politicians—it is conducted on Ngarrindjeri terms and incorporates sovereign performance, authoritative Indigenous speaking positions, and transformative and educative processes. is “site” of contact zone relations is constructed to provide a managed engagement between government and Ngarrindjeri leadership—it has the potential to slow, channel, and unsettle the colonization of Ngarrindjeri Ruwe/ Ruwar. Along with other mechanisms and strategies, it also fundamentally revitalizes Ngarrindjeri agency and resists the old paternalistic practices found in interactions between the settler state and Indigenous people. Negotiating, writing, and performing Ngarrindjeri into a position of increasing power in the policy, planning, and management of Ngarrindjeri land and water gives À¼ S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG

Ngarrindjeri an increasing role in the development of healthy Ngarrindjeri futures, where being Ngarrindjeri and making a living the Ngarrindjeri way have become positive regional factors (see Rigney, Bignall, and Hemming ; Hemming et al. ). We see feminist theorist Karen Barad’s concept of “agential realism” useful here when considering KNYA Taskforce meetings as legally constituted, performative, and transformative “apparatuses” (Barad ). is transformation or “(re)conªguring of the world” involves the hard work of changing the “habits of the colonial heart” (Barad , –; Stoler ). It requires research, pedagogical engagements, di©cult negotiations, and rewrit- ing the “colonial archive” through policy writing, new management plans, and formal agreements (see Hemming and Rigney ). e KNYA Taskforce was a crucial part of a multifaceted strategy addressing the limitations of the usual pedagogic direction of Indigenous/non-Indigenous relations, the negotiation of intimate and local relations, and decisions crucial to the exercise of agency and authority in processes of social construction and transformation. ese kinds of agency and authority are in turn constrained (but never completely) by the pressure exerted by the quasi-stable “macrostructure” of colonizing contact zone relations with their established networks of action and relation. But assemblages are constructions: they can always be deconstructed and reconstructed when their composing relations take on new direction or are negotiated in accordance with new expressions of agency and authority (see Bignall ). is is what Ngarrindjeri are currently achieving through making KNYAs. KNYAs rely on contract law to allow the parties to agree, essentially, with whatever they want to agree, and they provide the ability to create a relationship that counters past inscriptions of powers and wrongs (see Hemming, Rigney, and Berg ; Bignall, Hemming, and Rigney ). e application of contract law by Ngarrindjeri is a strategy developed to ªll the vacuum of Australian legal protections for Indigenous nations. e logic is that contracts, which are essentially private arrangements, allow for individual party-to-party acceptance of key legal principles, even if those principles do not form part of the normative Australian legal system. Examples include the primacy of Indigenous control over land, ¢owing from the position of traditional ownership; the ownership and protection of cultural knowledge and materials; and the primacy of control over burials and burial places. Douglas Sanderson and Bradon Willms, in their chapter in this volume, demonstrate this same legitimation process occurring through the adoption of commercial codes, which prescribe the responsibilities N GARRINDJERI N ATION BUILDING À½ and duties of parties operating on Indigenous lands and also include arbitration clauses to settle disputes according to Indigenous laws. KNYAs are “spoken” performatively in the normative language of contract law, but they also introduce a fresh element—a new voice and a new way of speaking— into that language, which e¤ectively shifts the discourse itself toward a new kind of cultural reciprocity. is involves negotiation partners in a politic that moves beyond recognition or achievement of a shared standard of humanity, toward mutual sensitivity to cultural di¤erences, in experiences of human coexistence, and in relation to “nonhuman” worlds. Conceived as part of a broad movement for social change that works through a range of legal, political, and cultural registers, the KNYA negotiation regime is a signiªcant opportunity for the responsible transformation of the colonial history of domination and assimilation that has so far characterized relations between Ngarrindjeri and the settler community (see Bignall, Hemming, and Rigney ). We suggest that Ngarrindjeri political practice involves “acting sovereign” through redeveloping structures of nationhood and political authority, which has created new conditions of possibility for sustaining a contemporary Indigenous political subjectivity in contemporary contact zone relations (see Rigney, Bignall, and Hemming ). A secondary form of agreement, statements of commitments (SOC), have been developed as crucial “tools” for articulating the KNYA principles with speciªc projects and programs. SOCs have been developed for a variety of “environmental” projects, such as Ruppia tuberosa (Swan weed) translocation; CLLMMP (Coorong, Lower Lakes and Murray Mouth Program) Research and Monitoring; Vegetation Management Planning for the CLLMMP; and updating a major regional Ramsar wetland’s ecological character description (see Hemming et al. ). SOCs ensure a clarity of process and protect Ngar- rindjeri “cultural” knowledge through a Ngarrindjeri-developed cultural knowledge protection regime. Speciªc clauses and deªnitions are included in project agreements, research agreements, and other documents. e following is an example of a key deªnitional clause.

Cultural Knowledge means all and any cultural knowledge, whether such knowledge has been disclosed or remains undisclosed of the Indigenous group, including but not limited to: (a) traditions, observances, customs or beliefs; (b) songs, music, dances, stories, ceremonies, symbols, narratives and designs; (c) languages; (d) spiritual knowledge; (e) traditional economies and resources management; (f ) À¾ S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG

scientiªc, spatial, agricultural, technical, biological and ecological knowledge; and includes documentation or other forms of media arising there from including but not limited to archives, ªlms, photographs, videotape or audiotape. (Hemming, Rigney, and Berg , )

Crucial to the success of the KNYA strategy is the foundational Ngarrindjeri management planning document—the “Ngarrindjeri Nation Yarluwar-Ruwe Plan: Caring for Ngarrindjeri Sea Country and People” (Ngarrindjeri Nation ). It articulates a broad vision and a set of strategic directions for caring for Ngarrindjeri country, emphasizing that “the river, lakes, wetlands/nurseries, Coorong estuary and sea have sustained us culturally and economically for tens of thousands of years” (Ngarrindjeri Nation ). It was developed by a governance working party established at a Ngarrindjeri Nation meeting. is working party was tasked with the development of a proposed structure for a new Ngarrindjeri Nation governance model—this became the NRA. It also worked on the Ngarrindjeri Yarluwar-Ruwe Plan, and the ªnal plan was endorsed at a Ngarrindjeri Nation meeting.

CARING AS/FOR COUNTRY: THE NGARRINDJERI YARLUWAR¢ RUWE PROGRAM ¥® ¦¨

In , following in the footsteps of earlier Ngarrindjeri NRM and cultural heritage programs, the NRA established a Caring for Country Program (later renamed the NRA Yarluwar-Ruwe Program) to implement and further develop the visions of the groundbreaking “Yarluwar-Ruwe Plan” (see Hemming et al. ). e NRA is working with government and local communities to develop new forms of NRM and CHM that recognize Ngarrindjeri values and privilege Ngarrindjeri expertise and capacity. e Yarluwar-Ruwe Program facilitated a series of objectives that include coordinated development and implementation of Caring for Country, strategies and activities within Ngarrindjeri country; a forum for engagement, discussion, and innovation; the provision of advice and formal responses to requests from the Ngarrindjeri Nation and external bodies such as governments at all levels, education and research organizations, and the business sector; promotion of the NRA and its activities; and support for the NRA in achieving its goals to build its capacity and create increasing opportunities to manage Ngarrindjeri Yarluwar-Ruwe. N GARRINDJERI N ATION BUILDING À¿

Importantly, the Yarluwar-Ruwe Program provided a culturally appropriate and strategic Indigenous engagement mechanism supporting a number of complex regional NRM partnership projects. It extended an ongoing and developing partnership between the NRA and the four regional NRM Boards and the NRM programs of the regional local councils. As a program, it was the conduit for all external and internal projects and programs associated with Ngarrindjeri Yarluwar-Ruwe. First contact from outside organizations was made via the NRA Board and the KNYA Taskforce. Once ideas, projects, and programs were presented through these channels, they were referred to the Yarluwar-Ruwe Program for detailed assessment, engagement, and consideration. It was a successful mechanism for discussion, analysis, and decision-making, in¢uenced by best practices in leading First Nation contexts internationally (see Hemming, Rigney, and Berg ; Hemming et al. ). In the NRA won the Australian River Prize for best practice in water management in recognition of the innovative Yarluwar-Ruwe Program and the partnership developed with DEWNR. is was the ªrst win by an Indigenous-led program. Importantly, the Yarluwar-Ruwe Program brought NRM, CHM, and other related issues together, avoiding the violent dissection of Ngarrindjeri Ruwe/ Ruwar into separate domains of “culture,” “nature,” “politics,” and “economy.” e NRA’s negotiation and engagement frameworks are ªrst and foremost underpinned by a clear political positioning as a sovereign First Nation. is positioning is strongly expressed in the following statement regarding a priori rights to “water” in the NRA’s submission to the M-DBA.

Ngarrindjeri consider they have the ªrst right, a right attached to the exercise of their cultural rights, interests and responsibilities, that precedes all other rights including but not limited to the legislative function of the MDBA to allocate water for particular uses. e rights and interests of the Ngarrindjeri require that water ¢ows into, through, and from, their country from up river. is is a right a priori to all others and the MDBA should commence their consideration of allocations without interference or diminishment of these rights. (NRA , )

Ngarrindjeri argue, for example, that this legal and political positioning of Indigenous rights/responsibilities to country needs to be recognized when non- Indigenous researchers, policy makers, and others address the issue of Indig- enous engagement. Native title issues are now part of this legal context, but ÀÀ S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG the slowness of processes involved in the resolution of Native title claims has not signiªcantly interrupted the development of a number of interrelated and successful Ngarrindjeri strategies for engagement in domains such as water planning in the South Australian M-DB.·» ese include innovations in water planning such as developing the SAM-DB Indigenous water planning agreement, Indigenous inputs into annual water planning, wetland planning (through the Living Murray Program and the Riverine Recovery Project), federal environmental water plans and water allocations, and water quality planning (see Collings ; DEWNR and NRA , ; Hemming and Rigney , ; M-DBA ).

NGARRINDJERI RESEARCH STRATEGIES: REASSEMBLING CONTACT ZONE RELATIONS

Steve Hemming and Daryle Rigney, two of the co-authors of this chapter, led the research e¤orts of the NRA’s Yarluwar-Ruwe Program during the period of the Murray Futures Program (–), developing a formal Ngarrindjeri yannarumi (speaking lawfully as country) assessment process for transforming the approach to “environmental character” descriptions and “cultural health” assessments for areas such as the Lower Lakes, Coorong, and Murray Mouth and wetlands along the River Murray south of Morgan (see Bignall, Hem- ming, and Rigney ; Hemming and Rigney , ; Hemming et al. , , ). is work has parallels in Aotearoa / New Zealand, where the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act () (NZ) incorporates Indigenous values and interests and a “cultural health index” into a co-management regime (see Aho ). Ngarrindjeri yannarumi assessments have been applied at the local level through wetland management planning and on a broader scale in risk assessment and large-scale management planning (see Birckhead et al. ; Liedlo¤ et al. ; Hemming et al. ). Since Hemming and Rigney have focused research activities in the ecological and water research projects managed by the South Australian Goy- der Institute for Water Research (see Kirby et al. ). is organization has been established with state government funding to directly support the policy development and practices of South Australia’s NRM bureaucracy. Goyder is a partnership between the state’s three universities and the peak research agencies Commonwealth Scientiªc and Industrial Research Organisation (CSIRO), and N GARRINDJERI N ATION BUILDING ÀÁ the South Australian Research and Development Institute (SARDI). Indige- nous research, knowledge, and interests were excluded from the original focus of Goyder. Hemming and Rigney made the case for the inclusion of the Ngar- rindjeri/Flinders Indigenous research unit and have completed three projects and have one in progress (Kirby et al. ; Hemming and Rigney , ; Hemming et al., forthcoming). e current project addresses the challenge of connecting Indigenous risk management strategies to non-Indigenous risk management policy central to the settler state’s water management regime.·¼ We argue that this research/policy engagement was essential for Ngarrind- jeri to transform the network of relations that produce the fundamental policy directions that construct conceptualizations of Ngarrindjeri Yarluwar-Ruwe, disconnecting Ngarrindjeri from the land and water through a Western separation of nature, culture, and politics. e relationships between scientists, bureaucrats, and politicians in the construction of Ngarrindjeri Yarluwar-Ruwe was poorly understood and largely obscured from Ngarrindjeri leaders. By the time new proposals for “managing” Ngarrindjeri country were presented by government representatives to Ngarrindjeri leaders, the scientiªc research had already been done, the policy makers had adapted it, and the politicians had made decisions about its strategic political use. We wanted to bring Ngarrindjeri knowledge and interest into collaboration with scientiªc research at the very beginning of the process—attempting to articulate scientiªc research and policy development with the comparatively new principles incorporated into KNYAs. is engagement with scientiªc research work has in part produced the basis for negotiating the more recent “Ngarrindjeri speaking as country” agreements. ese later agreements are a result of Ngarrindjeri e¤orts to explain the core principles of Ngarrindjeri identity, political philosophy, and contemporary “nation building” (see Rigney, Bignall, and Hemming ; Bignall, Hemming, and Rigney ; Hemming et al. ). Ngarrindjeri, since British invasion in the early nineteenth century, have told the colonizers that Ngarrindjeri are the land and water and that Ngarrindjeri need to speak as country for Ngarrind- jeri well-being. e concepts of Ruwe/Ruwar, miwi (overarching Ngarrind- jeri concept of spirit and well-being), ru(we)pelli, and yannarumi encapsulate and embody this Ngarrindjeri philosophy of being that we have attempted to bring into play with the fundamentally scientiªc research that Australian settler state apparatuses deploy to make decisions about sustainability of the land and water, and therefore the people. Ngarrindjeri leaders George Trevorrow, Matt Rigney, and Tom Trevorrow (all deceased) led a nation-building strategy ÁÃ S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG based on Ngarrindjeri philosophy and ways of being passed down to them by their elders. As researchers, we worked with older and younger Ngarrindjeri leaders to translate these principles into strategies of engagement designed to create Ngarrindjeri well-being and to assess/realign “intra-actions” with non- Indigenous interests (the continuities of colonialism) toward health-giving potential for Ngarrindjeri Yarluwar-Ruwe (see Barad ).·½ What we have been working on in all our projects, political interventions, and nation-building work is a reassembling of contemporary contact zone relations in a form that provides increased agency for Ngarrindjeri interests. ese interests require an inclusion of the lands, waters, and all living things, and the Ngarrindjeri philosophy of Ruwe/Ruwar—this is a new assemblage that moves away from colonizing practices and supports Ngarrindjeri creative agency. is approach could be understood in terms of actor networks as life-giving assemblages rather than death-giving webs of entrapment. For Ngarrindjeri, the contact zone has traditionally shaped Ngarrindjeri’s colonized relationship with Yarluwar-Ruwe, transforming Ngarrindjeri into museum specimens; anthropological and missionary accounts of “culture”; “fringe dwellers”; human remains as scientiªc objects; bounded, past-oriented heritage sites; and as people out- of-place in the white, settler space of South Australia’s southeast. In these actor networks, Ngarrindjeri are “captured” as data to be sources of information for the colonizers to better manage the land and water. Ngarrindjeri have no agency, no “expertise,” no force, and are conceptually and often physically disconnected from Yarluwar-Ruwe. If the ¢ows between spirit, land, water, and all living things are not healthy and “appropriate,” then there will be unhealthy outcomes for Ngarrindjeri. e character of these ¢ows, and the relationships that produce them, can be assessed and adjusted using a yannarumi methodology enabling Ngarrindjeri leaders to identify the changes that are needed to support a healthy Ngar- rindjeri Nation. What has been the case in recent times is an uninterrupted ¢ow of requests, requirements, and expectations into Ngarrindjeri Yarluwar- Ruwe by non-Indigenous organizations. In these contexts, Indigenous people are expected to be readily available and have the capacity to engage in solicited “consultation.” When the response is not satisfactory from the perspective of the outside organization, then the engagement is characterized as a negative re¢ection on Indigenous nations. is colonizing relationship conªrms and per- forms the narrative of failure and demise that is implicit in the usual relationship between the state and Indigenous nations in Australia. N GARRINDJERI N ATION BUILDING ÁÂ

We often use the Ngarrindjeri metaphor of weaving as an enactment of the connectedness of Ngarrindjeri with each other, ancestors and descendants, the land and water, and all living things (see Bell , ). Weaving can be understood as the work of assembling and connecting—the KNYAs are forms of weaving; they are also contemporary forms of Ngarrindjeri shields providing protection, a redirection of ¢ows, a space for Ngarrindjeri to heal and develop nation building based on Ngarrindjeri traditions and reassembled actor networks.·¾ ey also act like spears and awls connecting and weaving the philosophy of Ngarrindjeri Ruwe/Ruwar into a transforming and newly assembled set of contact zone relations that are becoming life-giving rather than colonizing in contemporary South Australia. is is the kind of work that is required for Indigenous nations to achieve well-being in deeply colonized places like South Australia. ese decolonial, nation-building programs can be understood as a form of “neo-abolitionism” directed at the abolition of colonizing assemblages or actor networks formed in the interests of “white” settler societies (see Leon- ardo ). In South Australia the founding documents “ e Letters Patent” were drafted by British abolitionists, with clauses that sought to protect the rights of the “Natives” of South Australia. Instead, Ngarrindjeri have been declared extinct, not modern, and for too long “enslaved” in death-giving actor networks that fail to provide any opportunity for Ngarrindjeri to be Ngarrindjeri in a Ngarrindjeri way (see Berg ). Ngarrindjeri are working hard to reassemble these colonizing relationships and to abolish the ongoing erasure of Ngarrindjeri Yarluwar-Ruwe. e KNYAs o¤er a philosophy and pedagogy of engagement, centered in Indigenous knowledge, culture, and experience, and “looks outward to engage European philosophical, legal, and cultural traditions in order to build upon all the allied tools available” (Byrd , xxix–xxx). We see here, then, that our approach brings together insights from Ngar- rindjeri/Indigenous theorizations, “philosophy,” and political action with aspects of recent “posthuman” theory, such as actor-network theory and assemblage theory, that address conceptualizations of constructivism, nonhuman agency, and the interactivity of “micropolitical” events and systemic processes (see Bignall, Hemming, and Rigney ; Hemming et al. ). We do this as a conscious response to the work of international Indigenous scholars such as Linda Tuhiwai Smith (), Jodi Byrd (), Audra Simp- son (), Mark Rifkin (), and many others. Ngarrindjeri are involved ÁÄ S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG in what could be characterized as a form of decolonization that centers the project of self/nation deªnition in terms of “speaking as country.” is is a project that is grounded in resistance, refusal, transformation, and nation building that requires the formation of new relationships with the colonizers of Ngarrindjeri Yarluwar-Ruwe.

CONCLUSION

In Australia, Indigenous and non-Indigenous researchers are beginning to argue that Indigenous capacity is crucial to just and equitable Indigenous engagement in mainstream NRM and water management (see Hemming, Trevorrow, and Rigney , Birckhead et al. ; Jackson ; Howitt et al. ; Barber et al. ). It is, however, very rare that environmental management resources are available directly to Indigenous nations to address Indig- enous priorities. For a fundamental change of mind-set to occur, Ngarrindjeri have argued that radical changes are required in non-Indigenous government NRM policies and processes to prioritize the well-being, goals, and capacity of Indigenous nations (see Ngarrindjeri Nation ). Fundamentally, what is at stake is the question of agency and authority over Indigenous “country”—often translated by settler societies into natural resources available for industry or to be managed by scientists and government bureaucrats. For Ngarrindjeri, nation (re)building is the critical starting point for negotiating a just relationship between the state of South Australia and Ngarrindjeri as a sovereign First Nation. is political, social, cultural, and economic project is part of an international First Nations movement working toward healthy futures for land, water, and people often devastated by colonization (see UN ; Whyte ). In this chapter we have traced the Ngarrindjeri nation-building story as it connects with NRM on a major Australian river system. is story shares much with other First Nations, particularly in Paciªc Rim settler democracies. Ngar- rindjeri nation (re)building has required a strategic and researched program of identiªcation, organization, and action (Cornell b; Hemming et al. ; Whyte ). For Ngarrindjeri, living in Australia’s supposedly “settled southeast,” e¤ective negotiations with the settler state must be theoretically informed with complex understandings of the tools and practices of ongoing colonization. One way of naming the decolonial changes needed to produce healthy N GARRINDJERI N ATION BUILDING ÁÅ outcomes for Ngarrindjeri is to identify, as a priority, neo-abolitionist strategies designed to abolish “whiteness” and practices of erasure in the bureau-political system governing NRM and water management in the broader Murray-Darling Basin (Hemming ; Hemming and Rigney ; Hemming, Rigney, and Berg ). e Kungun Ngarrindjeri Yunnan Agreement–making strategy uses contract law to reassemble relations between the settler state and Ngarrindjeri, as a First Nation, to create the possibilities for new just relations founded on the concepts of Ruwe/Ruwar and yannarumi. We have explained how KNYAs operate as recalibration platforms, guiding relations and decision-making in new ways to materialize new forms of conduct and to generate new hopeful assemblages. e KNYA negotiation strategy has its philosophical moorings in Ngarrindjeri traditions of ethics, law, and governance. NRA chair Tom Trevor- row commented on the success of this strategy in the inaugural “KNYA Task- force Report –.”

Looking back at the past year as the Chair of the Ngarrindjeri Regional Authority, I am pleased to be able to say that the Kungun Ngarrindjeri Yunnan Agreement (KNYA) has been a success. e KNYA has provided opportunities for the Ngar- rindjeri people to extend the work that we are doing as a Nation that otherwise would not have been possible. e negotiation of the KNYA between the NRA and the Government assisted us to address the terrible e¤ects of the drought on our Ruwe Ruwar, which had caused great stress to the Ngarrindjeri people. We have achieved a number of positive outcomes through the KNYA that have helped to heal our Country and our people. Another of the positive outcomes has been the opportunity to get to know Government people and to begin the process of creating a respectful relationship between them and the Ngarrindjeri people. My hope is that we can extend the KNYAs and respectful relationships we have begun with the current members of the Taskforce to all areas of Government. With great sadness I also want to acknowledge and honour the contribution to the establishment and progress of the KNYA made by brothers George Trevorrow, Matt Rigney, and Robert Rigney, my nephew Steven Walker, and the many other Ngarrindjeri Elders, leaders and community members who have passed in recent times. (DEWNR and NRA , ) Á¼ S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG

NOTES

is chapter was produced with support from the Australian Research Coun- cil for projects titled “Negotiating a Space in the Nation: e Case of Ngarrind- jeri” (DP) and “Indigenous Nationhood in the Absence of Recognition: Self- Governance Insights and Strategies from ree Aboriginal Communities” (LP ). Additional support was provided by the Melbourne School of Gov- ernment Indigenous Nation-Building Project and the Goyder Institute for Water Research. e NRA Yarluwar-Ruwe program has received substantial support from the Coorong Lower Lakes and Murray Mouth (CLLMM) Ngarrindjeri Partner- ship Project and Riverine (Murrundi) Recovery Project—components of the South Australian government’s Murray Futures Program funded by the Australian government’s Water for the Future initiative. e authors thank the Ngarrindjeri Regional Authority; the South Australian Department for Water and Natural Resources; the Australian government Department for the Environment; Berg Lawyers; the O©ce of Indigenous Strategy and Engagement, Flinders University; Jumbunna Indige- nous House of Learning, UTS; the Native Nations Institute, University of Arizona; and all the research partners involved in Ngarrindjeri nation building and Caring as Country programs. In particular, the authors thank our colleagues Larissa Beh- rendt, Stephen Cornell, Robert Hattam, Miriam Jorgenson, Alison Vivian, Mark McMillan, Peter Bishop, Robin Boast, Belinda McGill and Julie Matthews, Grant Rigney, Luke Trevorrow and Amy Della-Sale, and all our research partners. We acknowledge the intellectual work of past and present Ngarrindjeri leaders and elders who have consistently and courageously applied Ngarrindjeri values to engagements with government agencies concerning Ngarrindjeri Yarluwar-Ruwe. Finally, we pay our respects to the leadership of George Trevorrow (rupelli), Matthew Rigney, Tom Trevorrow, Richard Hunter, and Colin Cook (all deceased). e Ngarrindjeri governance working party’s primary role was to develop a proposal for the Ngarrindjeri Nation to establish a new peak body. is led to the establishment of the Ngarrindjeri Regional Authority as the nation’s peak body. e working party was chaired by the Ngarrindjeri rupelli, George Trevorrow (now deceased). e rupelli is the head of the traditional Ngarrindjeri government called the Tendi. e Tendi was formally reestablished in the mid- s, making public the Ngarrindjeri processes of decision-making that had continued to function from the time of European invasion and colonization. South Australia was established in as a British colony and became a state of the newly formed Commonwealth of Australia in . In the Ngarrindjeri Nation began a process of treaty negotiation with the South Australian government. It has only been in the last few years that state governments such as South Australia and Victoria have entertained the possibilities of treaties with Indigenous peoples. In a conservative government was elected in South Australia and this government has declared that it will not negotiate treaties with First Nations. N GARRINDJERI N ATION BUILDING Á½

Traditional owners is a term that has become acceptable to the settler state and tends to limit the legal recognition of contemporary jurisdiction. e authors of this chapter are directly involved on a day- to- day basis in the development of engagement and negotiation strategies relating to Ngarrindjeri interests in water planning, management, and research. e NRA established a Research, Policy and Planning Unit (RPPU) to lead a strategic research program, and the authors of this chapter were co- directors of this unit (– ). Rigney is a citizen of the Ngarrindjeri Nation, a Ngarrindjeri leader, a member of the NRA, and a board member of the Ngarrindjeri Native title representative body. Ngarrindjeri also maintain a commitment to national and international First Nations justice promoting international treaties and agreements such as United League of Indigenous Nations (), Ramsar Convention on Wetlands (), and the United Nations Declaration on the Rights of Indigenous People (). e research team has conducted a preliminary survey of recent Australian literature dealing with Indigenous peoples and NRM and water management issues. e South Australian government’s Murray Futures Program is a Commonwealth- funded program that seeks to address the impact of the Millennium Drought. ere was an AÇ million allocation to South Australia, which included the Ç million Coorong Lower Lakes and Murray Mouth (CLLMM) Recovery Project and the Ç million Riverine Recovery Project (RRP). e Ngarrindjeri Partnership Project and the Murrundi Recovery project were signiªcant projects under this banner. In the NRA’s Yarluwar- Ruwe Program won the prestigious Australian River prize for best practice in river management in recognition for its Murray Futures partnership with the South Australian Department of Environment, Water and Natural Resources (DEWNR). We borrow the term contact zone from the work of Marie Louise Pratt () and deploy it in the South Australian context in recognition of the ongoing colonial relations between Indigenous nations and the settler state. e idea of “reassembling” is taken from the work of Bruno Latour () and takes into account the complex “actor networks” that require theorization to support strategic Indigenous agency. Similar programs and strategies are developing across Indigenous nations in Australia (see, e.g., Dhimurru ; Morrison ; NAILSMA ; Hunt et al. ). e South Australian Murray-Darling Basin Natural Resource Management Board (SAM- DBNRMB) is encompassed by the whole- of- government KNYA (). It funded a project aimed at developing the research capacity of the NRA— Developing Ngarrindjeri Research Capacity: Ngarrindjeri Yarluwar- Ruwe Insti- tute for Research, Education and Training (– ). is project was jointly conducted by Flinders University, the SAM- DBNRMB, and the NRA. Steve Hemming and Daryle Rigney carried out the research as part of the NRA’s Research, Policy and Planning Unit. e KNYA taskforce met monthly from to . Á¾ S TEVE H EMMING, D ARYLE R IGNEY, AND S HAUN B ERG

Ngarrindjeri Native title rights to the River Murray, Lakes and Coorong were recognized by the federal court on December , . See Ngarrindjeri and Others Native Title Claim, SCD/; SAD/. Goyder Project H- E-- , “Translating Ngarrindjeri Yannarumi into Water Risk Assessment.” We borrow Karen Barad’s ( ) term intra- actions to better represent the complex refractive relationships in contact zone relations. is concept speaks to Ngarrind- jeri understandings of interconnection and destabilizes actor networks that repress Ngarrindjeri agency. In thinking about the connection between Ngarrindjeri material culture/practices from the pre- European period through contemporary settings, we are interested in the genealogies of these creative and defensive strategies. Indigenous artists such as Jonathon Jones (Wiradjuri/Kamilaroi) are thinking through and experimenting with these genealogies in exhibitions such as the nd Kaldor Public Art Project, barrangal dyara (skin and bones), a vast sculptural installation incorporating ªfteen thousand white shields.

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PART II

BUILDING INSTITUTIONS FIGURE 5.1. Huu-ay-aht First Nations citizens gather immediately prior to e¤ective date of the Maa-nulth Treaty to burn pages of the Indian Act, March . Photo courtesy of Huu-ay- aht First Nations.

ANCIENT SPIRIT, MODERN MIND

The Huu-ay-aht Journey Back to Self-Determination and Self- Reliance

®°Çµ¬® ªµ³¬µ»

HORTLY BEFORE midnight on March , , citizens of the Huu-ay-aht First Nations gathered around a ceremonial ªre on Huu-ay-aht lands, Slocated on Vancouver Island on the Paciªc Coast of Canada, and proceeded to burn—page by page—copies of the infamous Indian Act (), the Canadian legislation that for more than a century had controlled our lives, as many say, “from cradle to grave.”· Following cheers, drumming, and tears, we entered our House of Huu-ay-aht, and at : a.m. on April , , the Maa- nulth Treaty, the ªrst modern-day treaty to be concluded on Vancouver Island and the ªrst multi–First Nation treaty concluded under the modern-day British Columbia Treaty Process, came into e¤ect.¸ Our Tyee Ha’wilth (head hereditary chief ), the most recent in a long line to carry the traditional name Tlii’shin, swore in our newly formed Huu-ay-aht legislature, which then proceeded to enact a set of Huu-ay-aht First Nations laws designed to provide a foundation for our future and the future of generations of Huu-ay-aht citizens to come.º ese events were the culmination of ªfteen years of negotiations in the modern-day treaty process, preceded by a generations-long struggle for recognition of our territories and jurisdictions and of our journey back to self- determination and self-reliance. On that early spring morning, the Huu-ay-aht First Nations began once again to exercise our own authority and jurisdiction in relation to the preservation of our culture, the management of our lands and ÂÃÀ A NGELA W ESLEY resources, the exercise of our rights, and the operation of our own government. But we learned that the treaty itself does not create the reality; it contains the tools and resources for achieving our collective goal and vision; most importantly, it provided the governing authority to allow us to take back control of our own lives. at reality is only coming to life through hard work. is chapter tells the story of how Huu-ay-aht is rebuilding our self-determined governance and describes the sometimes hard solutions we devised along the way in order to turn the promise of the treaty into tangible outcomes for our people. Today our government is guided by our own supreme law: the Huu-ay-aht Constitu- tion, a document that was built in our nation, by our citizens, grounded in our culture and traditions.

OUR HISTORY

e Huu-ay-aht First Nations, like many Indigenous peoples around the world, lived within a complex society where oral history and teachings pre- vailed. Strict laws were not written, but they were deeply understood by all. Our Tyee Ha’wilth was invested with rights to the lands, resources, and waters of our territories and had the responsibility to be the guardian of all that was contained in those territories. at responsibility was bestowed upon our Tyee by Naas, the Creator. Within our society, every individual had a role to play and was raised from birth and before to learn the requirements of fulªlling that role. Our beach-keepers, ªshermen, whalers, speakers, warriors, artisans, canoe builders, spiritual people, healers, hunters, and many others understood that if they did not fulªll their role, the entire community might su¤er. e sacred laws that governed our territories were strictly enforced; consequences for breaking those laws could be severe. ese laws and sacred principles brought us through countless generations and, in one form or another, have survived. We know what they are. In the context of our treaty implementation and especially our renewed self-governance, they now need to be strengthened and used once again. For Huu-ay-aht, the connections between people, nature, and the spiritual world are clearly evident and very strong. e sky, sea, forest, mountains, and earth are said to be inhabited by supernatural creatures such as the underbird, Giant Sharks, and the ya’i spirits of the mountains. Tribal and family histories recount numerous adventures of our ancestors’ encounters with such creatures, A NCIENT S PIRIT, M ODERN M IND ÂÃÁ where they received spirit powers and treasures, and have since been passed down through many generations. Over the centuries our ancestors grew strong and came to number in the several thousands. ey learned from keen and patient observation of the natural world. is traditional wisdom was accumulated by our Ha’wiih (hereditary chiefs), who were responsible for the welfare of their people and for the stewardship of the abundant resources in their domain. In the late s and early s, during the period of colonization, nearly percent of the Huu-ay-aht population was lost to a series of diseases and at one point we numbered less than . Despite the losses and challenges experienced during the period of colonization, Huu-ay-aht have survived, grown, and today continue to work to retain and revive the ancient and proud traditions of our ancestors.» Today we feel the responsibility that comes with survival. We feel the weight of countless generations of our ancestors in every square inch of our territories and within our own being. We are aware of the responsibility we bear for our children of today and those of the future. We also are aware of the legacies of colonialism that we have to overcome. A report of the British Columbia Claims Task Force () describes some of those legacies.

e colonial society was an immigrant society whose values were very di¤erent from those of the aboriginal peoples. e new society distrusted communal values, exalted the enterprising individual, favoured progress over tradition, and believed that the betterment of humankind lay not in harmony with nature but in its conquest and transformation. e British Columbia society saw itself as the successor of European explorers, who believed they had “discovered” an unknown, even empty, land that was free for the taking. ousands of years of aboriginal habitation in the area were ignored. First Nations were accorded no place in colonial British Columbia. Individual aboriginal people were denied recognition, respect, dignity, and even the minimal opportunity that was implicit in the policy of assimilation. When British Columbia joined Canada in , aboriginal people, who were the majority of the population in British Columbia, had no recognized role in political decision- making. e Terms of Union made no mention of aboriginal title, but ensured provincial control over the creation of further Indian reserves. Canada assumed responsibility for “Indians and lands reserved for Indians.” e ÂÂÃ A NGELA W ESLEY

government of British Columbia considered the “Indian land question” to have been resolved. ereafter, it regarded the federal government as responsible for all matters pertaining to the aboriginal peoples.

Aboriginal people in British Columbia were restricted by law to “using and occupying” small portions of their traditional territories set aside as Indian Reserves and became wards of the federal government, ruled by a single piece of federal legislation, the Indian Act. Under that single piece of legislation, still in force today, the lives of aboriginal people residing on Indian Reserve lands are under the control of the Canadian government “from birth to death.” Numerous decisions—whether you are a citizen (or “member”) of your First Nation, what can be done with your lands and resources, how your money can be spent, how your children can be educated, how your health care will be provided, how your estate will be managed when you pass to the next world, and so on—are subject to the approval of the government of Canada through the federal minister of Indian a¤airs. at same legislation at various times and through its history of amendments and related acts outlawed cultural practices such as the potlatch (our feasting system that governed our economies and enshrined and a©rmed our social and governmental practices). It imposed a residential school system that stole our children, separating them from their families, their territories, their languages, and their cultures. at same system of governmental controls left us reliant on federal support programs simply to survive, and we were sometimes barely able to do so. Of the approximately , acres of Huu-ay-aht traditional territories, only about , acres—. percent—had been set aside in the s as “Indian Reserve lands” for the “use and beneªt” of our people. Ownership of those lands and authority over them were held by Her Majesty the Queen in Right of Canada. Before doing anything on those lands—social, cultural, or economic— permission was required from the minister of Indian a¤airs, a changing list of politicians who were ignorant of us, our values, and our history, working in an o©ce nearly three thousand miles away in Canada’s capital city, Ottawa. Our citizens—and especially the elders of our nation—found it unacceptable that we were forced to sit back and watch as valuable resources, and especially the resources of our forests, were removed from our territories year after year while we were denied any say in what happened to those resources and received no beneªt from their removal and use. In e¤ect our future economic and cultural development was not in our own hands. A NCIENT S PIRIT, M ODERN M IND ÂÂÂ

We knew that if we were not only to survive but to ¢ourish, we needed to get rid of the Indian Act and the power that the Department of Indian A¤airs and the government of Canada held over our lives.

INCREMENTAL STEPS TO A MODERN¢DAY TREATY AND SELF¢ GOVERNMENT

We had resisted these developments as best we could. Archives and oral histories conªrm that, since the time of ªrst European settlement of our territories and the establishment of small Indian Reserves, our ancestors fought for the return of our lands and other resources and tried to reclaim the authority to govern ourselves. In the early twentieth century, delegations of First Nations people from across British Columbia traveled to the province’s capital city (Vic- toria), Canada’s national capital city (Ottawa), and even London, England, to protest the intrusion of settlers, the dispossession of First Nations from their territories, and their relegation to tiny parcels of reserved lands. In the s and s First Nations on the west coast of Vancouver Island shared political strategies and coordinated their actions through provincial organizations such as the Allied Tribes of British Columbia and the Native Brotherhood of BC. Our population in our homelands was diminishing around the same time when citizens who resided in the main Huu-ay-aht settlement of Sarita were displaced by the establishment of a logging camp on those lands. With no other settlement available and no funding to build a new community, many Huu-ay- aht moved away from our territories; many of those who were removed by law from their homes and families as children to be placed in residential schools never returned home. e tragedy and heartache created by the abuse su¤ered by many in those schools left a population largely lost and su¤ering. With no housing, jobs, services, or opportunity, only a small percentage of citizens were able to remain in our territories. ey only began to return in the mid-s when a new community was established in our territories at Pachena Bay. Huu-ay-aht First Nations is one of fourteen First Nations on the west coast of Vancouver Island that in formed a political alliance known as the West Coast District Council of Chiefs (now called the Nuu-chah-nulth Tribal Coun- cil). e alliance was based on family, cultural, and historic ties as Nuu-chah- nulth people (formerly known as “Nootka”). is organization, which was one of the most powerful and progressive of its type in the country, began assuming ÂÂÄ A NGELA W ESLEY increased jurisdiction in areas such as health, capital and infrastructure, child protection, block funding arrangements, education, and others.¼ Although the authority gained was delegated from provincial and federal authorities, the taking on of more and more authority was part of an overall, long-term, tribal council strategy that saw those delegations as stepping stones toward the eventual return of full self-governance to our nations and institutions. We had to start somewhere. ese steps, taken with other First Nations, created the solid foundation for Huu-ay-aht to begin to realize our own vision of a future in our homelands. But year by year it became obvious that even with increased delegated authority, there was little hope of achieving a much improved quality of life for Huu-ay-aht as long as the Indian Act was the rule of the day. While some First Nations elsewhere in British Columbia have situations or locations that allow them to survive and in some cases even prosper despite the impositions of the Indian Act, we knew that we did not have the economic potential that existed in those other parts of the province. While our location, a small seasonal ªshing village on the west coast of Vancouver Island, is one of beauty, it is remote: access to the nearest populated area is by a sixty-mile gravel logging road. In the s approximately percent of the then Huu-ay-aht citizens lived “at home.” e community had few jobs, opportunities, or basic services; our language was approaching extinction; our resources were being overhar- vested by others with no beneªt to Huu-ay-aht; our lands and environment were threatened; drug and alcohol and other social problems were growing. We were no longer the strong, independent, free people we once had been. e situation for our people was dire. e British Columbia Treaty Process that resulted from the BC Claims Task Force report o¤ered us an opportunity to negotiate for tools (governance authorities, lands, resources, cash) that we could use to change our world in a positive way and regain some control of our destiny. So we began to move in that direction. It was our chance to begin the work of rebuilding our First Nations and reclaiming and reasserting ourselves in our territories. We knew it was time to govern ourselves again. It was time to ªnish what our ancestors had begun. It was time to rebuild our nation and its governing capacity from the ground up, beginning with the people and creating a government that re¢ects who we are, where we come from, and what we want to be. e treaty process required that First Nations citizens provide approval and a mandate to become involved in the negotiation process. Huu-ay-aht leadership A NCIENT S PIRIT, M ODERN M IND ÂÂÅ called a “band meeting,” as it was then called, so that citizens could discuss the option of pursuing our goals via a modern-day treaty negotiated with the governments of Canada and British Columbia. Overwhelmingly, the decision was to involve ourselves in that process.½ Our citizens chose a negotiating committee of ªve persons: our Tyee Ha’wilth Tlii’shin (head hereditary chief ), Arthur Peters; the next person in line for that position, Spencer Peters; and three other individuals (I was honored to be one of them), including another hereditary chief, Tom Happynook, and one of our Huu-ay-aht historians, Robert Dennis Sr. is team of negotiators was strongly committed to engaging and informing citizens throughout the process so that the end result would be shared by all. One of the ªrst tasks undertaken by the team was to work with citizens to document the vision of the Huu-ay-aht Nation. It was recognized that the vision was not a new one but one that was passed on to this generation by those who came before us, and one that we would leave for our future generations as well. e vision statement that was developed and endorsed by the citizens of the Nation in the early s, and which remains our vision today, says:

Huu-ay-aht First Nations envisions a strong, self-governing and self-reliant Nation. Iisaak will guide us as we work together to foster a safe, healthy, and sustainable community, where our culture, language, spirituality, and economy ¢ourish for all.¾

Being unsure of where treaty negotiations would go and how long it might take to reach a ªnal agreement, Huu-ay-aht searched for and took advantage of every opportunity to have a say in what happened in our homelands and to arm ourselves with the knowledge we would need. Among other things, we knew we needed to deªne our traditional place in our territories, territories that we had never abandoned but that had been taken from us. at process of researching and documenting our own history; the ways we had used our lands and waters; the place-names; and the family stories helped us relearn and enlarge our collective understanding of our own relationship with these lands, and especially our governance history. For our elders, it was both a painful reminder of what had been taken and a joyful celebration of the land itself; for our young people, it was an education in who we are as Huu-ay-aht. All of this took years, and none of it was easy. We experimented and made mistakes, and not everything worked as well as we would have liked. But we per- severed in a broad set of initiatives, some still underway today in the post-treaty ÂÂ¼ A NGELA W ESLEY environment. For example, we completed a detailed study of the traditional uses of lands and waters within our territories, identifying close to one thousand traditional use sites, traditional place names, historic sites, and more. We also conducted a study of the most valuable resources in our territories: the forests. As of , the time of the study, literally billions of dollars worth of timber already had been removed from Huu-ay-aht territories without our participation, consent, or beneªt (and this was only one of the resources being similarly extracted from our homelands). Furthermore, it was clear that existing harvest plans of the tenure-holders would result in the loss of much of the remaining timber resource while treaty negotiations went on. As a result, we sought and established new relationships with the government of British Columbia in our forest-rich territories, requiring forest companies to consult with us prior to harvesting forest resources and subjecting proposed harvest areas to more intense study where our traditional use was known or still evident. We also began to take back control of some of our forest lands by acquiring tenures and licences directly. rough treaty and other means, we now either control or have a decision-making role in forests and other resources in approximately percent of our territories. e total is growing—and we will continue to grow it. is is governance at work. We have also worked with industry to begin restoration of a major salmon- bearing river in our territories, a river we call “the heart of the people,” and we produced two ªlms about the river and its place in our lives.¿ Recognizing that others also have interests in Huu-ay-aht territories, we have pursued and achieved, both pre-treaty and post-treaty, joint management arrangements that place us at decision-making tables with other entities such as Parks Canada, which has a large national park—the Paciªc Rim National Park Reserve—in our territories. We are not yet where we want to be in some of these new relationships, but we see them as critical steps toward regaining the ability to have a genuine say over decisions and protect our territories for the beneªt of our people. For example, we came to agreement with Parks Canada for the commemoration of Kiix?in, our ancient capital, as a National Historic Site, so that all of Canada and all the world can learn of our deep history in our territories. Using the treaty process and other means, we have worked on several fronts to preserve sacred places and restore the original names of key geographic features in our territories. Recognizing the importance of our own cultural A NCIENT S PIRIT, M ODERN M IND ÂÂ½ spaces and knowledge transmission, we built the “House of Huu-ay-aht” with welcome ªgures that replicate those that historically stood at our ancient capital of Kiix?in. We established an immersion “language nest” where our young preschool children and their parents can learn our language and our history directly from the elders of our nation. We launched a revival and strengthening of our potlatch and feasting system.Â We also built a new administration building for our own government. In order to forge a self-determined direction for our future, we established an economic development corporation to promote business and entrepreneurship within our nation and among our citizens. As part of that process we are developing long-term plans to house, employ, and care for our people, allowing those who wish to do so to return home. Perhaps most importantly, we undertook the work of setting a foundation for Huu-ay-aht governance—a Huu-ay-aht Constitution—that would recognize who we are and where we came from and would incorporate the values and principles by which we could govern in a way that is meaningful for Huu-ay-aht.

THE HUU¢AY¢AHT CONSTITUTION: ASSURING MEANINGFUL GOVERNANCE

In the early twenty-ªrst century we started work on a written Huu-ay-aht constitution.·Ã Treaty negotiations required that each nation under treaty draft and ratify a constitution that would include matters speciªed in the treaty. While the treaty process required it, each of the ªve First Nations that are part of the Maa- nulth Treaty realized that a written constitution was something we needed, a way of laying out a government structure and a set of governing processes that would work for us in the contemporary context. Each nation undertook the work to develop their own constitutions to guide them into the future; the ªve First Nations negotiated a single treaty together, but negotiations provided for each to remain autonomous and have its own constitution and governments, lands, and resources.

CONSTITUTIONMAKING

In Huu-ay-aht, and indeed among all of the Maa-nulth First Nations, constitution-making was an opportunity for our citizens to rethink how we ÂÂ¾ A NGELA W ESLEY govern and to envision a way of governing that would make more sense to us culturally and historically. If we were successful in reclaiming, through treaty, the right to rebuild our community and govern ourselves in our own ways, a constitution would give us the practical tools we needed to put that right to work. A constitution could articulate our own highest law based on our own idea of who we are and on our own view of the world. We could use it to teach and reestablish the governing roles of our Ha’wiih; to deªne not only the rights but the responsibilities of citizenship; to teach and reestablish our own principles and values; to take the best of the governance practices that worked for us for thousands of years and translate them into governance tools that could be e¤ective in today’s context. So we set to work. To begin, our elected chief and council of the day (led by Robert Dennis Sr.) decided that the process of developing a constitution must not be perceived as council-driven or as protecting the interests of that council or any future council. It had to be an e¤ort made by citizens on behalf of the nation. Leadership invited nominations for a Huu-ay-aht Constitution Com- mittee before appointing a small committee of trusted citizens, including Je¤ Cook and Tom Happynook, both of whom happened to be hereditary chiefs, and Stella Peters, a member of council. I was also appointed to the committee and served as its chair. At the committee’s request, chief and council later added an elder, Benson Nookemus, and a youth representative, John Jack. e committee started by educating ourselves on all aspects of a constitution. Legal counsel Gary Yabsley, a constitutional expert who had spent many years working with First Nations, spent hours helping us understand the “how and why” of constitutions and helping us identify the questions we needed to answer; never trying to answer those questions for us. e committee then drafted a questionnaire as a ªrst step in seeking Huu-ay-aht citizens’ thoughts and input.

COMMUNICATING WITH OUR CITIZENS

e ªrst challenge was to ªnd the many citizens who had not maintained contact with the nation over the years. As mentioned previously, the logging industry had displaced people from our Indian Reserve communities in the s and s, and many of those who attended residential schools brought their pain from that experience into urban areas and were temporarily lost or disconnected from our nation and their families. With no other housing available, and with the ªshery upon which our people depended depleted by industry, Huu-ay-aht A NCIENT S PIRIT, M ODERN M IND ÂÂ¿ people had been forced to disperse throughout the region and to distant urban centers. Only in the late s did some people start to move back home as Huu-ay-aht was able to reestablish a village in our territories at Anacla or Pachena Bay. Others had lived away from home for decades, completely losing touch with the nation. Finding them was challenging and took time. Furthermore, memories of having been removed from the community, some by industry, some by residential schools, others for personal reasons, remained painful for many of our people. Some, not understanding how the Indian Act had constrained us over the decades, carried a lot of anger toward the nation for things that had happened to them or to their parents or grandparents, or felt let down by a nation that had shown little interest in them in the past. For many, the e¤ort to reconnect to discuss a constitution was the ªrst time the nation had reached out to them. As a result, not only was making contact di©cult, but our ªrst interactions often were dominated by anger and venting. We had sent one of our young and aspiring citizens, Trudy Warner, as our communication worker in search of our citizens, near and far, armed with our constitution questionnaire. We counseled her not to try to defend or dispute any comments made by our people, and our chief councillor committed to following up with anyone who wanted to speak with him directly. at young woman deserves huge credit for perseverance, patience, persistence, and a good ear. She let people talk, ªnding that once citizens had said their piece, they then became interested in the reason for the visit, and the door to two-way communication began to open. is process of listening and then building a conversation in turn began to build a level of trust and connection within our community that had not existed for decades. Most citizens’ ªrst response to the questionnaire was that they did not know anything about constitutional development or the initiatives of our nation and that they had no input to o¤er. But as the practical nature of the questions emerged, the topic began to seem less intimidating, and citizens began to speak out. Once the conversation got going, they discovered that they indeed held strong opinions about how their government should operate! Among our topics and questions were the following.

What does it mean—to you—to be Huu-ay-aht? What are our traditional values/practices? What role, if any, should our Hereditary Chiefs play in modern- day governance? ÂÂÀ A NGELA W ESLEY

What are your views on numbers and terms for councillors, gender equality, decision- making and process, elections? What are your views on ªnances and budgets— approvals, reporting requirements? What are your views on ethical conduct and expectations? What restrictions should we have on the use and allocation of our lands and other assets? What are your views on collective and individual rights and responsibilities? What should require approval from our government? From our citizens?

e most important question we asked, however, was a very simple one: “Do you want to be visited again?” e answer, over and over, was a resounding “yes.” It is hard to convey just how important this ªrst step of face-to-face contact has been to all our subsequent governance work. e community engagement and communication process was time consuming and costly, but it was a critical ªrst step in building trust and unity within our nation. It was a valuable lesson learned and helped us understand the necessary level of citizen engagement if we were to meet the high threshold of approval that would be required for ratiªcation of both constitution and treaty. If we truly wanted to rebuild our community from the ground up, it was critical that citizens be informed and provide input on a regular basis. Without that trust there would be little hope of strengthening the nation. As the questionnaire process went on, a number of repeated themes emerged. Citizens wanted to see some recognition of our traditional governing system. ey wanted a say in decisions a¤ecting the community, no matter where they lived. ey were looking for strong leadership that would provide accountability and fairness in our government. ey wanted control over membership/citizenship, and they were looking for vision for the future that all of us could share. e Constitution Committee spent six years, o¤ and on (there was no consistent funding for this important work so there was competition with the many other priorities of the nation), gathering and analyzing information about what our citizens wanted and how our government should operate, learning about what it might take for us to govern ourselves once again, talking about how we might use some of our traditional governance practices that had worked for us and sustained our communities for generations prior to contact. We talked about how our values, principles, and the best of our traditional governance practices could be translated in a meaningful way and incorporated into our A NCIENT S PIRIT, M ODERN M IND ÂÂÁ modern-day government. We talked about how to overcome the impacts of operating for years under the Indian Act, the colonizers’ version of governance. We talked not only to each other but to other First Nations, looking at what they had done in their constitutions. And we had ongoing dialogue with our citizens, reporting what we were learning and the progress we were making, and then listening again to their views.

A ROLE FOR TRADITIONAL LEADERSHIP

One of the key issues that was discussed at length was the role of our Ha’wiih in our future government. Huu-ay-aht is an amalgamation of a number of smaller tribes that once occupied the territories. As a result, there is a head chief as well as subchiefs who hold responsibilities in di¤erent parts of the territory. Tradi- tionally, decisions were ultimately made by the head chief, who would take the time to consult with each of the subchiefs. Any resources that were extracted from the land or sea were ªrst taken to the head chief, who would ensure that the bounty was shared among all, and that everyone was cared for. e system of government was complex and there were many roles and responsibilities divided among citizens to ensure that both the people and the resources were cared for and the history, culture, and traditions maintained. Despite the fact that our community had lived for more than a century under the Indian Act, and despite the fact that generations of our people had grown up in residential schools, denied access to our language, culture, and families, many of us still maintained a strong belief in our traditional governing institutions, feeling that they could still form the basis of a strong nation and a strong government. On the other hand, many of those who had not lived at home for many years, or not at all, saw only the dysfunction in our Indian Act government and had little faith that either the traditional system or those who currently held hereditary seats could work for us again. Yet there was still strong support to include an advisory role for our Ha’wiih in the constitution. But once that was decided, we struggled to ªgure out how to deªne that role in our highest law, until one day we realized what should have been obvious long before, that it was not up to our committee to tell our Ha’wiih what their role should be, nor was it within our role or capacity to tell our citizens that they should once again be governed by a hereditary system. What we did instead was create a Ha’wiih Council as an arm of our newly constituted government with enough responsibility in the Constitution and subsequently ÂÄÃ A NGELA W ESLEY within our laws to provide the hereditary chiefs themselves with the ability to prove to citizens, through whatever level of involvement they chose, that they could be a governing force in our community once again. e Huu-ay-aht Constitution provides for the Ha’wiih Council to appoint an individual of their choice, from among their ranks or otherwise, to be a standing member of the council. at position is not subject to election or a speciªed length of term. It is up to the Ha’wiih Council who the individual will be and how long they choose to have that person serve. In the Huu-ay-aht Council role, the Ha’wiih representative has the same authority as elected council members. All Huu-ay- aht laws include provisions that require that the Ha’wiih Council be consulted on essentially all matters of government, laws, and so on. e Ha’wiih Council does not have veto powers nor are they obliged to provide feedback, but the council cannot be overlooked in the consultation process. is approach was accepted by the Ha’wiih at the time. ey agreed that it would likely be the next generation of Ha’wiih who would determine just how our hereditary chiefs and our traditional governing system could most meaningfully be incorporated into our modern governance structure. In practice, however, Huu-ay-aht Councils both before and after the e¤ective date of the treaty have increasingly involved our hereditary leaders in the activities and decisions of government. During the process of treaty negotiations, our elected chief councillor recognized that citizens would need to understand that the involvement of hereditary leadership was not a threat to the nation in any way, and that the hereditary leaders themselves would need to be exposed to the kinds of decision-making required of a modern-day government if they were to become more involved in government. Having the hereditary chiefs at the table, particularly in discussions and negotiations around the lands and resources for which they held responsibility to preserve for future generations, helped not only Huu-ay-aht citizens but also the governments and industry across the table to understand the importance that Huu-ay-aht placed on our hereditary system and the sacredness of our territories, which we are bound to protect. e ªrst elected Huu-ay-aht Council after the e¤ective date of the treaty consisted of seven members: our Tyee Ha’wilth, who holds an automatic voting seat on council; and six elected council members, three of whom hold hereditary chief seats of our nation. Today the council, led by our Tyee, is becoming increasingly involved in the governance decisions of the nation and continues to work on strengthening their role in modern governance. A NCIENT S PIRIT, M ODERN M IND ÂÄÂ

APPROVING THE HUU AYAHT CONSTITUTION

An excerpt from the preamble to the Huu-ay-aht Constitution reads:

As self-determining peoples, we accept the responsibilities inherent in governing ourselves and seek, with the assistance of Naas (the Creator), to govern with wisdom and respect for all people. rough the act of governing, we assume the power to preserve our natural world and enhance our identity.··

Our draft constitution included declarations of Huu-ay-aht identity and values; it conªrmed the rights of the nation and the individual rights, freedoms, and responsibilities of our citizens; and it outlined the structure and authorities of our government, including how our hereditary chiefs and our citizens could have a voice in government. It speciªed how our land system would work and how our government would be required to manage our ªnances and be accountable to Huu-ay-aht citizens. It speciªed the conduct that our citizens expect of our governing o©cials and placed limits on con¢icts of interest. It required the nation to put in place a process of our own for resolving disputes that would end the expectation that the Department of Indian A¤airs would resolve disputes for us—an approach that had often failed in the past, leaving decades of disharmony and resentment in its wake. Some of what was included in the constitution—especially relating to the jurisdiction and authority for lawmaking—was dependent on concluding a treaty. But the Huu-ay-aht Councils that were in place during the long development of our constitution made a commitment that, regardless of what happened in treaty, we would govern in the spirit and with the intent of our constitutional work. After all, while the Indian Act might require accountability to the government of Canada, there was nothing in the act that would prevent us from being accountable to our own citizens. In other words, we had every intention of acting in a self-determining way. When the Constitution Committee and the council of the day felt we had done all we could in drafting a Huu-ay-aht constitution, we turned to the community for ratiªcation of the ªnal document. It was a requirement of the impending treaty that a constitution be approved prior to the treaty coming into e¤ect, and in April the citizens approved the Huu-ay-aht First Nations ÂÄÄ A NGELA W ESLEY

Constitution. Sixty-ªve percent of voters turned out, and of those, percent voted in favor of the Huu-ay-aht Constitution.

PREPARING FOR TREATY, MAKING LAW

With the citizens’ approval of the Huu-ay-aht Constitution, community attention refocused on treaty, bolstered now by the knowledge of how we intended to govern ourselves.·¸ Nonetheless, our citizens still had questions. ey were especially concerned about three matters. e ªrst had to do with what protections we could put in place to assure that the nation’s present and future assets would be both productive in service to our people and, at the same time, protected so as to beneªt future generations. is was an issue that would be critical for our future development agenda. e second had to do with leadership selection: how would we assure that we have capable leaders who would serve the nation’s interests and not their own? e third had to do with practical daily matters: how would things like housing, health care, education assistance, and family services work under treaty and the new constitution? Speciªc answers to these questions would have to wait; this was a large part of the work yet to be done. But it was both daunting and empowering to realize that the answer to all such questions was: “It’s up to us!” Self-government means that the nation and its citizens now had the power to set our own priorities, choose our leaders, create our own governing procedures, and generate revenues in ways that both protect our assets and serve our citizens. ese things will no longer be dictated by an imposed piece of legislation or by non-Native agencies located thousands of miles away with no concept of our circumstances or priorities. In July , three months after adoption of the Huu-ay-aht Constitution and following an intense community communication process, percent of eligible voters and percent of those voting showed their faith in Huu-ay-aht’s future under treaty and constitution by agreeing to move forward with the treaty, making Huu-ay-aht the ªrst of the ªve Maa-nulth First Nations to approve our Final Agreement. e other four Maa-nulth First Nations ratiªed the Final Agreement in October of that year. A four-year period of delays in ªnalizing the ratiªcation process with our treaty partners ensued, but that provided time for Huu-ay-aht to prepare ourselves for the shift to self-government and drafting Huu-ay-aht laws that would come into force on the e¤ective day of the treaty. A NCIENT S PIRIT, M ODERN M IND ÂÄÅ

e treaty recognizes a broad range of Huu-ay-aht lawmaking powers in areas ranging from citizenship and the structure and procedures of Huu-ay- aht government to land management and environment, from child protection services to economic development, from education to the protection of culture and language. All ªve of the nations signing the Maa-nulth Treaty decided to assume their lawmaking authority in a slow, deliberate, and pragmatic way. Out of our lengthy experience in treaty negotiation and constitution building, our leadership in each community understood that returning to self-government was a big step. While citizens had high expectations of early beneªts, change would not be easy, and it would take time. It would be important to lay careful foundations for a government that was accountable to citizens, was ªscally responsible, and could function as an e¤ective steward of our lands, resources, and heritage. Based on that thinking, the nations decided that the ªrst laws to be put in place—and to be enacted on the day the treaty became e¤ective— would be in three general categories: governance and operational laws to ensure good governance practices within our institutions; laws that provided citizens a voice in government such as elections, citizenship, and access to information laws; and ªnally, laws around lands and resources that will provide for the protection and use of Huu-ay-aht lands and natural resources.·º To make Huu- ay-aht laws user-friendly for citizens, the introduction to each law includes a plain-language explanation of its purpose and meaning. Other areas of lawmaking, many involving sensitive social issues, would be addressed once the nation had rebuilt its governing capacity and once citizens had conªdence that the new government could be e¤ective at pursuing its goals. When the Maa-nulth Treaty came into e¤ect on April , , the ªrst act of our new government was to enact these foundational laws. At that point the Huu-ay-aht First Nations realized the dream of our grandparents, our great- grandparents, and preceding generations. We became a self-governing nation once again.

THE ROAD AHEAD

e Maa-nulth Treaty acknowledges the right of our peoples to govern ourselves and provides additional resources and opportunities we can use to create a new reality for ourselves and for future generations. But the treaty does not create that reality; it is really only a document. e reality will only come to ÂÄ¼ A NGELA W ESLEY life through hard work. e treaty is a toolbox. What we build with the tools is up to us. More than seven years have passed since Huu-ay-aht became self-governing and began using the tools of treaty. Although it has not been as quick as we all would like, there has indeed been progress. In our initial years we had to spend considerable time understanding how our laws would work and how to make them work for us. We have made small but signiªcant changes in how we do business and how we tend to the needs of our citizens. It is safe to say that anyone wishing to further their education or skills is supported by the Huu-ay-aht government in doing so. Elders are provided with generous monthly payments in recognition that they will not see the full beneªts of the treaty, although their e¤orts were such a large contribution to achieving that milestone. A special panel was appointed to review and make recommendations about the high numbers of Huu-ay-aht children in care; as a result the federal government has committed CÇ million over three years to act on the recommendations of that panel (Huu-ay-aht First Nations ). Attention and resources are provided to enhance our language and the increased revival and practice of our culture; citizen engagement in homelands and in urban areas is ongoing and consistent; traditional foods are provided on a regular basis to citizens, whether they live at home or away from home. Our nation-owned businesses are experiencing an upward growth trend despite the need to continue to build the economy of the region by bringing more people into the territory. Although we remain reliant on forestry activities, the e¤orts to diversify our economy are constant and we have added tourism and hospitality enterprises to forestry and other resource- related businesses. We continue to operate and are expanding our successful Pachena Bay campground operation, located at the head of the world-renowned West Coast Trail. ree years into the treaty, the nation purchased a market/café in the neighboring village of Bamªeld (population approximately two hundred) within our territory, and in the nation purchased eleven additional properties, including an airstrip, a motel and pub, a ªshing lodge and moorage, and a bed and breakfast facility. e nation has been putting itself on the Indigenous tourism map by o¤ering free guided tours of our ancient village site of Kiix?in. We are exploring partnerships in the tourism industry. Huu-ay-aht has a unique partnership with Steelhead LNG; we are working together to develop the Kwis- paa LNG facility on Huu-ay-aht lands. rough that partnership Huu-ay-aht has been able to continue watershed restoration and ªsheries enhancement work on one of our most valued river systems, the Sarita River. Development A NCIENT S PIRIT, M ODERN M IND ÂÄ½ of a run-of-the-river energy facility is underway. I believe that most if not all of this would not have been possible without the tools provided through the treaty, coupled with the determination of our citizens and our leadership. Years ago, we articulated a collective goal and vision: to see the Huu-ay-aht people return to our homelands and see them live in healthy communities where they have access to education and health services, where they have opportunities to be gainfully employed, where we have an economy that can support us, and where the practice of our culture and language will once again be a daily part of our lives. We have adopted a motto: Ancient Spirit, Modern Mind.

We must look back to how our ancestors walked and it will help us to take the right steps today. . . . We have been disconnected from our home, from our resources, from our food, our language, our songs. Everything that distinguishes us as Huu-ay- aht has almost been taken away, but we are now a modern treaty nation and we have the ability to govern and care for ourselves in a way that we see ªt in a modern day. For as long as there is a sun in the sky, we believe that there must be Huu- ay- aht in the land. We’re always going to have that deep-rooted connection to our home, and now it is going to be up to us to ªnd that balance between our Ancient Spirit and our Modern Mind. (Wish-key [Robert Dennis Jr.], traditional speaker for Tyee Ha’wilth Tlii’shin, quoted in Munro ompson Communications )

at vision drives our story, but the story is unique only in its details. ere are many other nations doing what we have been doing, struggling to reclaim self-governing power and protect their homelands and the future of their children. For pragmatic and practical reasons, we chose to use the treaty process as part of our solution, but we did not put all our eggs in that one basket. Develop- ing our constitution, for example, may have been occasioned by treaty, but it did not depend on it, nor did many of the other things we have been doing. We were going to rebuild our governing system and take control of our lives regardless of what happened in treaty. We did not wait for treaty implementation before moving toward self-governance. But at every step, we tried to do two things. First, we tried to engage as many of our people as we could in the decisions about how to move forward. We did it better at some points than at others, but it remained an important goal. Second, we tried to make sure that our own values stayed at the center of our plans and ÂÄ¾ A NGELA W ESLEY actions, guiding us along the way: ?iisaak (respect—for the community and its people, traditional knowledge, the natural world, the metaphysical world, and other peoples and communities), ʔuuʔałuk (taking care of—not only the land and the natural world but future generations), and hišuk ma cawak̕ (everything is one—the physical, social, and spiritual interdependencies of people, land, water, and the wider world).

e principles by which our ancestors lived and led their people are the principles that will inform how we as leaders today in the modern day should be engaging with our people. Because it’s the tradition by which our leaders led in the past that informs the expectations of our people. ey know when it’s there and they know when it’s not there. So we have to demonstrate that good governance according to those three principles. ey’re core to the identity of Huu- ay- aht. ( John Jack, elected council member, Huu-ay-aht First Nations, quoted in Munro ompson Communications )

Some other nations are taking approaches very di¤erent from ours, and we know we can learn not only from our experiences but from theirs. Now in our seventh year of self-government, we are reassured to hear from our friends the Nisga’a Nation from northern British Columbia, now in their eighteenth year, that their work also continues. It has been more than a century since we governed ourselves, and the impacts of colonialism will not be reversed overnight. It is an ongoing task, but each nation has to ªnd its own way and then o¤er what it has learned to the wider Indigenous world. In our constitution we declare:

We, the people of Huu-ay-aht, by this Constitution declare our unique identity as a Nation and claim our rightful place as equal participants in Canadian society. We have existed from time immemorial and have occupied and used the lands, waters and resources of our traditional territory throughout history, a traditional territory that extends from the mountaintops to the o¤- shore areas. . . . We draw our identity from our relationship to our land and from our rich heritage, culture, language and stories, myths and oral traditions. We honour our ancestors and our elders and commit ourselves to the values that they have preserved for us, values that provide us dignity and enhance our humanity. We honour our children in our determination to see these values carried into the future. A NCIENT S PIRIT, M ODERN M IND ÂÄ¿

As self-determining peoples, we accept the responsibilities inherent in governing ourselves and seek, with the assistance of Naas (the Creator), to govern with wisdom and respect for all people. rough the act of governing, we assume the power to preserve our natural world and enhance our identity.·»

It is now the responsibility of our leadership and our citizens, today and tomorrow, to work together to make this vision come true. Our journey back to self-determination and self-reliance has just begun. We have a long way yet to go before we can claim to have realized our vision. In , when our treaty began its ratiªcation stage in the Legislative Assembly of British Columbia, my uncle and long-time chief councillor Robert Dennis said, “We each need to ask ourselves: What can I do to make our way of life better? We have a lot of catching up to do.” is challenge was posed to all the parties to the treaty: to the citizens and leadership of the ªve Maa-nulth First Nation signatories, to British Columbia, and to Canada. But the greatest burden of responsibility now rests with us: the citizens of our nations. We have chosen to govern and have forged a means of doing so. Now we have to put it to work on behalf of those who are yet to come.

FIGURE 5.2. e sign that greets visitors to Huu-at- aht First Nations territory. Photo courtesy of Huu- ay- aht First Nations. ÂÄÀ A NGELA W ESLEY

NOTES

First Nation is a term used to identify Indigenous peoples of Canada who are neither Métis nor Inuit. is term came into common usage in the s to replace the Indian Act terminology of “Indian” and “Indian Band,” which many ªnd o¤ensive. e Huu- ay- aht First Nations changed its name in the early s from the name prescribed by the Department of Indian A¤airs (“Ohiaht Indian Band”) to the more traditional pronunciation and re¢ection of the nation as an amalgamated group of nations that once occupied our traditional territories. e ªve First Nations signatories to the Maa-nulth First Nations Treaty are Huu- ay- aht First Nations, Ka:’yu:’k’t’h’ and Chek’tleset’h’ First Nations, Toquaht Nation, Uchucklesaht Tribe, and Yuułuʔiłʔatḥ. For further information on the Maa-nulth Treaty, see “First Nations Negotiations,” British Columbia government, accessed March , , http:// www .treaties .gov .bc .ca/ treaties _maa -nulth .html; and a short video on the Maa- nulth Treaty accomplishment by New Journey Produc- tions (). Leading up to and after the e¤ective date of the treaty, much of our terminology changed. Citizens of our nation were previously referred to as members. Today we commonly use the term citizens. I use the term citizens throughout this chapter as I ªnd it di©cult to revert to the use of member. Huu- ay- aht First Nations, “Traditions,” accessed March , , https:// huuayaht .blog/ about/ history/. See the following history of the development and growth of the council: Nuu- chah- nulth Tribal Council, “History,” accessed March , , https:// nuuchahnulth .org/ history. Originally twelve of the fourteen First Nations members of the Nuu- chah- nulth Tribal Council negotiated together in the treaty process. However, in , in a vote on the “Agreement in Principle,” six First Nations voted in favor and six were opposed. Unable to reconcile their di¤erences, ªve of the First Nations that voted in favor of the Agreement in Principle agreed to continue negotiations together as the “Maa- nulth First Nations” (“Maa- nulth” being a selected name for the group of ªve, simply meaning villages along the coast). ose ªve Nations still remain part of the Nuu- chah- nulth Tribal Council for matters outside the treaty. Huu- ay-aht First Nations, “Mission & Vision,” accessed March , , https:// huuayaht .org/ about/ mission/. See Lasky ; HFNCommunications , plus the remaining three parts of this ªlm, available at https:// www .youtube .com/ user/ HFNCommunications/ videos. Recently my mother, the matriarch of her family, held a feast where seventy-ªve individuals— four generations of our family— received traditional or tribal names. See Huu- ay- aht First Nations, Constitution Act, enacted April , , accessed March , , https:// huuayaht .ªles .wordpress .com/ / / constitution -act - -o©cial -consolidation .pdf. A NCIENT S PIRIT, M ODERN M IND ÂÄÁ

Huu-ay-aht First Nations, Constitution Act. Because the Huu- ay- aht Constitution was drafted and approved prior to approval and implementation of the Maa- nulth Treaty, that constitution would have to be “truthed” with the treaty once the treaty was approved. In any event, only minor changes to the Constitution were required after the e¤ective date of the treaty. For a complete list of current Huu-ay- aht legislation, see Huu-ay- aht First Nations, “Leg- islation,” accessed March , , https://huuayaht .org/ government/ legislation/. Huu-ay- aht First Nations, Constitution Act.

REFERENCES

British Columbia Claims Task Force. . “ e Report of the British Columbia Claims Task Force.” June . http:// www .bctreaty .ca/ sites/ default/ ªles/ BC _Claims _Task _Force _Report _ .pdf. HFNCommunications. . “Return of the River.” Part . YouTube, February . https:// www .youtube .com/ watch ?v = vcimzaqs. Huu- ay- aht First Nations. . “Huu- ay- aht First Nations Social Services Project: Safe, Healthy and Connected, Bringing Huu-ay- aht Children Home.” May . https:// huuayaht .ªles .wordpress .com/ / / - - -report -of -the -hfn -social -services -panel - .pdf. Lasky, Darcy. . “Huu- ay- aht: Heart of the People.” YouTube, June . https://www .youtube .com/ watch ?v = nkan ifAyI. Munro Thompson Communications . “Ancient Spirit, Modern Mind ()— Huu- ay- aht First Nations.” YouTube, November . https://www .youtube .com/ watch ?v = nrjiOdg. New Journey Productions. . “Maa Nulth Treaty Celebration.” YouTube, June . http:// www .youtube .com/ watch ?v = EQeCOugKlJg. ¯

FROM LITTLE THINGS, BIG THINGS GROW

Exercising Incremental Self-Governance in Australia

º«®°µ ³ ¯«´·

VER RECENT years it has become clear that Indigenous peoples in the CANZUS states are paying increased attention to the links between Otheir governance institutions and achieving sustained development outcomes. An important commonality between the Indigenous peoples of each of these countries is their shared goal of establishing and exercising the right to govern themselves, and in doing so, to achieve greater economic independence. But it is also apparent that there are signiªcant di¤erences across these countries in the extent to which the right to self-governance has been legally recognized and how Indigenous peoples, in turn, are exercising those rights. is chapter considers contemporary Indigenous self-governance in Austra- lia as it is being asserted in practice within diverse cultural contexts and invariably within highly constrained wider legal and jurisdictional environments. A series of brief organizational and community case studies are presented in this chapter to highlight the diverse contexts in which Indigenous Australians are working to assert their governance priorities, and how they are doing so in spite of often limited jurisdictional powers of the kind more commonly associated with Indigenous self-government in Canada, New Zealand, and the United States. e case study examples range from mature incorporated organizations representing regional and community Indigenous constituencies to more informally organized new initiatives that have arisen out of customized governance F ROM L ITTLE T HINGS, B IG T HINGS G ROW ÂÅÂ solutions, and others where governance has been adapted over longer periods of time in order to better re¢ect changing circumstances and priorities. A common element that can be drawn out of the studies is that a strategic Indigenous response to governance building in Australia is often one of incrementalism, where the very fact of having limited recognition and rights has spurred on Indigenous Australians to design innovative governance formations that progressively maximize their opportunities for greater decision-making control on matters that are important to them. In doing this, Indigenous groups and their organizations are also creating intercultural governance arrangements that are not only meaningful to them but have also been crafted to be ªt for diverse social, economic, and political purposes.

GOVERNING UNDER CONSTRAINED RIGHTS

Unlike Canada, the United States, and New Zealand, there has been no formal national recognition in Australia of Indigenous peoples’ rights as autonomous political actors with binding exclusive powers over land, resources, or jurisdictional matters.· ere has also been no constitutional recognition of Indigenous rights, although contested campaigns and debates are in progress to win public and political support.¸ British colonial control gave no recognition to Indigenous sovereignty—or even occupancy—in Australia. It was not until the High Court’s decision in the Mabo case—more than twenty-ªve years ago—that Australia abandoned terra nullius, the legal ªction that the continent was unowned land when British colonists arrived and that consequentially, its Indigenous peoples had no Aborig- inal right to it. An adjunct colonial ªction was that Indigenous Australians supposedly had no leaders, institutions, systems, or structures of self-governance, and so by default could be made subject to Western law and regulation. With British colonization, the governance and administration of Indigenous nations was progressively carved up by Australian governments asserting imposed federal and state/territory jurisdictions, and often taking quite di¤erent policy and legal directions to each other in respect to Indigenous rights. As a consequence, the exercise of self-governance by Indigenous peoples has been severely constrained in Australia. e most substantive statutory recognition (upon proof of claim) of Aboriginal title to land has been that of inalienable freehold in the Northern Territory (NT) via the Aboriginal Land Rights ÂÅÄ D IANE SMITH

Act (ALRA) of , enacted by the federal government. While the ALRA constitutes a signiªcant legal recognition that has led to substantial inalienable Aboriginal freehold ownership for successful claimants over lands in the NT, it does not acknowledge an Aboriginal right over resources on the land (providing only a right to veto developmentº); nor does it recognize Indigenous traditional owners as lawmaking bodies. Subsequent to the ALRA, Indigenous land rights statutes of di¤erent kinds were enacted in ªve states: South Australia (, ), New South Wales (NSW) ( ), Victoria (, ), Queensland (), and Tasmania () (Nettheim, Meyers, and Craig ). Common law “native title” was recognized in Mabo () and then codiªed in the Native Title Act ( ), which led to an underlying national system of Indigenous claims to Native title in land. After the Wik case, the coexistence of Native title rights with other land tenures was also seen as possible, prompting substantial amendments to the Native Title Act in . While the High Court decision in Mabo and the subsequent Native Title Act in a©rmed Native title, it was only as a right-in-practice to be consented to by multiple registered parties (via mediation of a claim), or to be contested and proven in the Australian federal court. Any eventual “consent determination” has largely required that Native title “coexist” with the rights and interests of others in the same area of land. As a coexisting right, exclusive Aboriginal ownership of resources is inevitably precluded. Exclusive possession can only be recognized over limited parts of Australia, such as unallocated or vacant Crown land and certain areas already held by, or for, Indigenous Aus- tralians. is means that the Indigenous Australians by and large lack both the political rights held by Indigenous nations in Canada and the United States and the economic rights regained by Māori in recent years. e extent of Indigenous-speciªc rights to land continues to be determined through claims processes overseen by externally operated tribunals and courts. Nevertheless, such determinations have steadily resulted in Indigenous peoples holding percent of the Australian continent, and having some say over land use in a further percent (see Altman, Buchanan, and Larsen ). is Indigenous “estate” covers some of the highest conservation priority lands in Australia. ough their various property rights are signiªcantly constrained, Indige- nous Australians have nevertheless used those rights to strategically leverage major resource development and land protection agreements, negotiate regional F ROM L ITTLE T HINGS, B IG T HINGS G ROW ÂÅÅ and business partnerships with governments and the private sector, and to establish business enterprises across the country. Furthermore, many groups use their royalty monies, negotiated agreement beneªts, and business proªts to subsidize the delivery of a wide range of self-determined cultural, benevolent, and essential services to their own members (like that described in the Canadian context by Ken Coates and Carin Holroyd in this book).

CONTESTED GOVERNANCE

Australian governments at the national and state/territory levels, along with private sector interests, have consistently attempted to “read down” the content of Native title and land rights, making it di©cult for Indigenous Australians to generate economic value from the hard-won rights they have secured. For example, in , in a High Court decision, Justice Harry Gibbs said the idea “that there is in Australia an Aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain” (quoted in Reynolds , ). More recently, Australian governments at all levels have even retreated from the modest policy commitments to self-determination of the s and s, which had encouraged Indigenous expectations for the implementation of culturally informed self-governance (M. Dodson and Pritchard ; Smith ). National Indigenous calls for treaty rights and constitutional recognition have likewise been met with stonewalling by Australian governments. e concept of “governance” itself has only entered into prominence in Aus- tralia as a political discourse in Indigenous a¤airs over the past ªfteen years. During that time, Australian governments have been intent on reducing the scope of its meaning to self-management of local service delivery with an emphasis on corporate governance and ªnancial compliance. Indigenous Aus- tralians nevertheless persist in engaging in broader governance e¤orts to achieve goals such as economic self-su©ciency and self-determination. At the same time, since the s there has been an explosion of legally incorporated Indigenous organizations. Many are the result of government policy or legislative pressure on Indigenous groups to establish incorporated organizations speciªcally in order to receive government funding and hold forms of land title. But organizational incorporation has also been actively deployed by Indigenous groups as a way of rea©rming local and regional collective identities, and securing greater local control over decision-making. ÂÅ¼ D IANE SMITH

Today it is estimated there are between six thousand and eight thousand formally incorporated Indigenous organizations across Australia, created under both federal and state/territory government legislation. Some are extremely e¤ective in their governance, service delivery, and proªtability (see ORIC , ). Others are small, with few resources and ªghting for their viability. A consequence of the legal process of incorporation is that it places the governance and ªnancial arrangements of Indigenous organizations under external regulation and oversight by the O©ce of the Registrar of Indigenous Corporations (ORIC), an Australian government statutory agency. Operating alongside these incorporated organizations in Indigenous communities are also a multitude of consultative structures; for example, committees, councils, working groups, reference groups, task forces, executives, and other informal representative mechanisms. e great majority of these have been set up at the behest of government departments, nongovernmental organizations (NGOs), and private sector agencies for their purposes of “engaging” and “consulting” with Indigenous people, and gain their participation in externally determined initiatives and agenda. In e¤ect, Australian governments have been systematically inserting their own institutional architecture of fragmented departmental governance (and its associated territorialism) into the very fabric of Indigenous community life and modes of governance. e sheer number of these informal structures, and the signiªcant “voluntary” governing work that is undertaken by the Indigenous community members who are enlisted onto them, generally goes unnoticed. But when seen in their totality, it is clear they have major, often negative, ramiªcations for day- to-day Indigenous governance at the local community level. For example, a recent “mapping” exercise and governance evaluation carried out by the Central Land Council (see Chapman et al. ; Roche and Ensor ) in a small, remote Central Australian Aboriginal community of just people recorded more than thirty of these informal structures. In a population where there are Aboriginal adults over twenty-four years of age, approximately were working as “representatives” on such consultative structures. In other words, percent of the adult Aboriginal population is undertaking governance roles and responsibilities that have been largely determined by external agencies, in so-called community institutions that in fact deliver little in the way of genuine decision-making or control to the community. In the same year, this same small community recorded visits from government department bureaucrats and private sector agencies for the purposes of their F ROM L ITTLE T HINGS, B IG T HINGS G ROW ÂÅ½

“consultation” and “engagement” with the community. is resulted in , o©- cial “visitor days” for the year (i.e., days stayed in the community). is constitutes not just a heavy workload for a small community but a signiªcant external imposition of priority-setting. e overall e¤ect has been to fragment people’s own collective agency and energy in respect to self-determined governance initiatives. Fractured, disabling governance environments of this kind can be seen operating in many Indigenous communities across Australia. When such conditions are combined with the small population size of many Indigenous groups, their geographic dispersal, and entrenched low levels of education, employment, and health, one might well question the extent to which cohesive models of Indig- enous self-governance are even possible in Australia. Yet increasingly we are seeing Indigenous communities and groups having their own internal conversations about governance and nation building. And what is especially signiªcant is that some are succeeding in reframing the challenges they face into “unfortunate opportunities,” responding in strategic ways in order to progressively activate more robust content and collective agency into their preferred governance arrangements. is strategic approach is often characterized by forms of incrementalism—that is, by gradual iterations of experimenting with ways to acquire and exercise control over discrete and tangible areas of community life. Rather than waiting for comprehensive legal recognition or rights to be delivered to them by external governments, people are taking control over smaller matters and building upon them.

INCREMENTAL SELF¢ GOVERNANCE

Self-governance does not refer to self-administration or self-management of programs and services on behalf of outside authorities. But neither does it require the full suite of political rights, legislative recognition, or jurisdictional powers that are more common in the other CANZUS countries in order to have practical e¤ect. Self-governance does not rely on having jurisdictional self- government. Indeed, arguably a full suite of Indigenous rights has been rarely achieved in any country, and always has to be vigilantly defended once gained. Rather, self-governance has to do with how a group of people collectively decide for themselves what they want for their future, and how they go about translating what may be meagre or highly constrained rights into valued meaningful governing practices and outcomes for themselves. ÂÅ¾ D IANE SMITH

It’s important for Aboriginal people to propose their own governance priorities and share ideas about what works. But it’s also time to do the practical governance work that is needed to turn rights into outcomes. Governments will come and go, but Aboriginal people will still be here. (Ross )

From this perspective, rights and related structures are a means to an end, not the entire precondition for self-determined governance. Indeed, the case study research conducted for the Australian Indigenous Community Gover- nance (ICG) Project between and concluded that Indigenous cultural geographies, social relationships, and values are more important ªrst-order governance foundations for Indigenous people than are “structures,” especially when they start rebuilding their governance arrangements (Hunt et al. ). Today, many Indigenous groups in Australia are reimagining their governance models by placing greater emphasis on rea©rming their collective identities, and acquiring decision-making authority and responsibility over matters that will deliver practical results for them. Not surprisingly in that rebuilding, Indigenous organizational governance has become a hotly contested intercultural ground that brings issues of e¤ectiveness, legitimacy, accountability, and power to the fore, and in ways where di¤erences in Indigenous and non-Indigenous standards of governance are stark. In this intercultural arena, Indigenous groups are seeking to maximize their own design choices and promote culturally credible solutions for their local governance. As they do so, they push the institutional boundaries and regulatory constraints imposed by mainstream governments in order to give shape to and assert maximum governing powers where they can. is incremental rebuilding can be seen across diverse societal and organizational scales: for example, from representative arrangements that seek to respond to di¤erent cultural and geographic scales; in the creation of enterprises, legal contracts, and agreements that progressively build economic independence; in local mechanisms created to facilitate consensus decision-making and dispute resolution procedures; in the establishment of local law and justice groups; and in the design of intercultural governance solutions that privilege Indigenous knowledge systems and ways of governing. Arguably, these all constitute pathways to self-governance that exemplify what can be called “strategic incrementalism.” A common motivation behind these incremental initiatives was identiªed by Patrick Dodson () when he noted that in North Western Australia, “the challenge for traditional owners, like the Yawuru, is how do we, as a people, F ROM L ITTLE T HINGS, B IG T HINGS G ROW ÂÅ¿ leverage our native title rights so as to promote our own resilience and reliable prosperity in the modern world?” On the other side of the country, in South Australia, Daryle Rigney (in Hemming, Rigney, and Berg , ), also a contributor to this book, similarly commented that the Ngarrindjeri Nation “has, as a matter of priority, pursued recognition and protection of their interests through negotiation and speciªc contractual arrangements rather than reliance on legislative protection.” Under an incremental approach to self-governance, a community or group might select a single project or initiative as its initial priority, and then develop the governing institutions, organizational structures, and capabilities to ensure it achieves outcomes under those priorities. Mistakes are made, but learning happens, both collectively and individually from these mistakes, and so adaptive changes can be made that are critical to building resilient governance. Once a community or group has consolidated one strategic priority, it can set another priority, and hopefully be successful with it, then move on to another, and so on. e aim of incrementalism in governance is to proceed at a considered pace, whereby next steps can continue to be locally determined and controlled. It also builds governing conªdence, along with the trust of community members.

NOTABLE SUCCESSES IN INCREMENTAL GOVERNANCE

Under adverse legal and political circumstances, there has been a growing and diverse Indigenous experimentation with incrementally e¤ective governance across the country, with some notable successes. is strategy is evident across a wide range of circumstances—within discrete communities and social groups in remote, rural, and urban locations; in regional alliances and multiparty partnerships; and in diverse incorporated and informal organizations. ere are di¤erent pressures and leverage points for these, and this diversity in¢uences governance solutions. But it is evident in each that incrementalism has been adopted as a strategy, as an active response to adverse conditions or a one- o¤ opportunity to promote success and assert greater local self-determination in respect to very speciªc matters. Set out below are several examples from across Australia that overview how this is occurring. ese are based on my research conducted for the ICG Project, and a governance review report for ÂÅÀ D IANE SMITH the Aboriginal Governance and Management Program of the Aboriginal Peak Organisations of the Northern Territory (Smith ).»

ARNHEM LAND PROGRESS ABORIGINAL CORPORATION ALPA

In ALPA was incorporated as an Aboriginal organization in East Arnhem Land, Northern Territory, by a group of Yolngu leaders who worked together with resident non-Aboriginal church advisors to create store cooperatives in several of their communities. e aim of the initiative was to enhance the economic development of its Yolngu members, giving primacy to their cultural heritage and desire for equality with their fellow Australians. e initial members were seven dispersed Yolngu communities in East Arnhem Land who wanted to revitalize their community stores, to provide a wider range of retail services including fresh food, general merchandise, and other community beneªt programs to their own residents. Today ALPA is one of the oldest incorporated organizations in Australia, and percent owned by the Aboriginal residents of its member communities in Arnhem Land. Since , ALPA has expanded its operations and now takes on the function of remote employment and services; provides accommodation with a tourist lodge as a joint venture at Milingimbi community; and operates a mechanic workshop, accommodation, and homeland services at another community known as Ramingining. In addition to its own stores and associated businesses, ALPA now also manages additional stores (and two clubs) for its respective Indigenous owners across the “Top End” of the Northern Territory. In – overall annual turnover was in the order of AÇ million spread across eighteen trading businesses. Now with more than twenty-ªve stores in , the annual turnover across the ALPA group is about Ç million. e success of its retail and business ventures allows ALPA to be reasonably ªnancially independent, and not reliant on government funding or subsidies. Apart from funds reinvested (either in trading or investing activities), sur- pluses are distributed to Yolngu members through community benevolent programs including funerals, ceremonies, education assistance, and approved community projects such as a credit advisory program, small business monitoring program, business partnership fund, freight subsidization, youth programs, and for medical escorts and emergencies to Darwin hospital. In –, ALPA had , employees, of which percent were Aboriginal. F ROM L ITTLE T HINGS, B IG T HINGS G ROW ÂÅÁ

is makes ALPA one of the largest ªnancially independent employers of Aboriginal people in Australia. Given its longevity, sustained business viability, and cultural credibility, there is much to be learned from ALPA’s incremental building of governance experience and resilience. ALPA’s administration is centralized but its governance is based on a model of networked subsidiarity, which allows the dispersed Yolngu communities to have strong local representation, decision-making voice, and participation. is is not the usual “hub and spokes” model. It is more innovative in that authority and responsibility for speciªc components of ALPA’s governing roles and decision-making responsibilities are devolved across the structure—from the board members being residentially dispersed across several communities, to the individual community store committees, which adopt a broadly inclusive representative model. All directors on the governing board and individual store committees are Aboriginal. Directors are recognized as local leaders in the ªve member communities who each select two directors (a community member representative and a traditional landowner representative). e traditional owner representatives are selected by the Yolngu landowners, and the community representatives via the store committees, which themselves generally constitute a cross-section of community members. Importantly, there is great stability in ALPA’s board membership with many directors having served on the board for considerable periods; for example, the current chairperson has occupied that position for twenty-two years. ere are no non-Aboriginal directors. e board and CEO have, however, established an investment committee composed of external business and ªnance experts with the function of providing the board with independent investment advice and risk management assessment. e capacity to progressively review its approach and adapt to changing circumstances has been critical to the organization’s continued viability at critical times. e ALPA chairperson writes that capacity has been based on a strong commitment to its underlying purpose and direction, namely its founding vision of promoting a strong Yolngu identity and contributing to Yolngu self-determined aspirations, well-being, and economic independence.

ALPA has grown a vision with purpose and direction for forty years. It has the capacity to support the aspirations of many of its members who themselves have embarked on their own journey. ALPA has become a contemporary business Â¼Ã D IANE SMITH

underpinned and driven by Yolgnu aspiration, quite a balancing act. (ALPA – , )

From its inception, ALPA has sought to respect both Yolngu and Australian law and values within its governance arrangements. In order to build conªdence and capacity in that approach, it provides cross-cultural mentoring to non- Yolngu sta¤, and a range of governance and ªnancial training to board members.

ALPA Board Meetings are held in Arnhemland. At each Board meeting, ALPA engages an independent interpreter to assist in the explanation of ªnancial matters, policy, legal requirements, matters of organisational structure and issues relating to governance. e approach uses relevant language and concepts from traditional Aboriginal economic and legal parallels. e interpreter is there to promote - way understanding between Directors and Management. ALPA has developed a unique method to give a visual hands on and readily understood explanation of proªt and loss statements and budget planning sessions.¼

is cultural vision is constantly expressed as the basis for periodically reviewing its direction and e¤ectiveness. Whenever new opportunities arise or project evaluation is needed, they are assessed against whether they will positively contribute to, or undermine, core Yolngu identity and goals. is has given the organization a strong governance foundation from which to incrementally build on its successes, readjust ªnancial strategies and programs, and make strategic choices between competing opportunities. And it does so in ways that facilitate Yolngu engagement consistent with their expectations and priorities.

WESTERN DESERT NGANAMPA WALYTJA PALYANTJAKUWESTERN DESERT DIALYSIS

Western Desert Dialysis (WDD) is an initiative begun in by the Pin- tupi Luritja Aboriginal people who live in several communities in the remote Western Desert of Australia.½ eir aim in establishing WDD was to improve the lives of their members who were su¤ering from end-stage renal failure, and to strengthen a¤ected families by helping ill people on dialysis stay at home in their communities. e Aboriginal name Nganampa Walytja Palyantjaku means “making all our families well,” in recognition that when people are relocated to the distant F ROM L ITTLE T HINGS, B IG T HINGS G ROW Â¼Â town of Alice Springs in order to receive dialysis treatment, not only are they sick and homesick but they are missing from community life. e intention of WDD was that by establishing dialysis and medical support “out bush,” people could continue to contribute to their families and receive the support of kin, look after country, and pass on cultural knowledge. WDD has a unique “getting started” story that demonstrates innovative lateral thinking and learning around its incremental approach to dealing with diabetes in these communities. Unable to secure government funding for a proposal to deliver dialysis for people in their remote communities, a group of Pintupi Luritja senior leaders decided to hold an auction of their own artists’ extraordinary dot paintings at the Art Gallery of New South Wales. ey raised more than a million dollars. is was su©cient to start their own unincorporated organization of dialysis services within their communities. is independent money allowed community leaders who were eventually to be called “directors” to design a service that was groundbreaking: the way they wanted it for their communities rather than the way a similar mainstream service would have had to operate. From to , the WDD project entirely self-funded the establishing and managing of all its dialysis services. Since then it has sought philanthropic and government funding to support its self- determined solutions. From the start, the strategic approach was to take things slowly. Community leaders trialled their approach and service-delivery model for the ªrst three years before they went on to become legally incorporated. is meant they were able to build mechanisms for strong local control in the early establishment phase. It also meant that the founding Aboriginal community members had time to build local capabilities and conªdence in their own approach to governing the initiative. As a consequence, WDD has now grown into an Aboriginal community-controlled health organization delivering a comprehensive range of integrated services over a geographic region that has emerged naturally and slowly in response to its success. As the organization proved it could e¤ectively deliver high-quality dialysis services within one community, it was approached to extend operations to other surrounding communities. But before taking up potential expansion opportunities, a full feasibility study was carried out, assessing the likely risks, costs, and workload implications that would need to be considered and addressed. e incremental expansion of WDD has meant that the expanding service “region” has largely developed as a result of self-determined, informed decisions by the Â¼Ä D IANE SMITH

Aboriginal directors, based on their consideration of cultural relations as well as community need and ªnancial risk. Its early self-funded and self-determined creation means that WDD is a locally driven governance model informed by a strong vision of cultural legitimacy. According to its website, “We will ensure that Walytja (family), Tjukurrpa (dreaming), Ngurra (country), and Kuunyi (compassion) are central to all that we do and say.” at vision has had to address intercultural issues of medical practice and service delivery.

Our biggest challenge has been to develop a model of care which fulªlled cultural imperatives as well as fulªlling the expectations of mainstream health service delivery. en the challenge was to gain government support and sustain high levels of excellent service delivery. We did this by constant dialogue with stakeholders, embedding cultural priorities in everything we do and involving patients and their families in designing models of care.¾

e organization has been prepared to take the time to widely discuss issues and consider how best to continue to prioritize Aboriginal cultural values in its governance while at the same time meeting intercultural service standards. An important factor in its success has been the measured incremental approach it has adopted to expand operations from the local community to a wider regional scale. at has also been instrumental in achieving the sustained support of community members.

YARNTEEN ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATION

Incremental approaches by Indigenous groups in their governance development are also apparent in urban areas. e Yarnteen Aboriginal and Torres Strait Islander Corporation (Yarnteen) is a collective of community organizations established in the large urban center of Newcastle, on the coastal seaboard of New South Wales. Yarnteen has been an exceptionally successful community initiative over a long period of time—in its governance, cultural outcomes, and business ventures—and has done this without any of the supports of land rights or legislated recognition. e core objectives for Yarnteen have remained consistent since its establishment in by several Newcastle extended Aboriginal families. F ROM L ITTLE T HINGS, B IG T HINGS G ROW Â¼Å

Build wealth through sustainable enterprises and investments to increase opportunities for greater Aboriginal participation in the business sector; Create pathways and opportunities for skills development and contribute to “closing the gap” in unemployment between Indigenous and non- Indigenous Australians; Enhance Aboriginal youth cultural leadership and increase appreciation in Aboriginal culture for all Australians; Develop respectful relationships between non- Aboriginal Australians and Aboriginal people for shared outcomes and beneªts.¿

In pursuing these goals over a period of twenty years, the family members of the Yarnteen Board have progressively built up a conglomerate or network of closely related commercial initiatives, cultural projects, and incorporated organizations known as the Yarnteen Group. ese entities have each been incubated into existence and then mentored by the founding “mother” organization, Yarnteen Aboriginal and Torres Strait Islander Corporation, which was itself established through a similar incubation process by an earlier community organization. Some have remained as project initiatives. Others have changed their governance and organizational structures as they have grown in e¤ectiveness and expanded their functional scope. Today, the Yarnteen group of entities includes separately incorporated organizations, wholly owned business subsidiaries, and nonincorporated centers and projects. e Yarnteen group demonstrates a cultural design principle that is familiar across Indigenous Australia, namely, where organizational and project governance arrangements are structured as if they are part of an extended family. Accordingly, their internal cultures emphasize Indigenous family values of mutual support, responsibility, accountability, and respect. Relation- ships between component entities, for example in a network of organizations, a regional alliance, or a community partnership, are similarly framed around family kin expectations of “working together” and “looking after” each other. Some of Yarnteen’s “younger” projects and organizations have been incubated by the older, apical organization, and have then gone on to incubate other initiatives that have become independent over time. e result is to forge a “genealogical connection” between the various entities that are committed to supporting each other’s goals. e connection is further facilitated by having some board members in common across the di¤erent layers of the network. Â¼¼ D IANE SMITH

is incremental development has worked extremely well and led to particularly resilient and adaptive governing structures across the group.

An important strategy to achieve the long-term objectives and economic self- su©ciency of the organization . . . was to have a governance structure that was sensitive to and compatible with the cultural diversity and interests of our community, but importantly that o¤ered stability and contributed to good governance rather than undermining it. (Leah Armstrong, quoted in Smith )

Over the years as the main Yarnteen organization has grown and ¢edged other smaller projects and organizations, it has retained operational ¢exibility by routinely reviewing the strategic direction of the overall group, implementing robust risk management, and by being prepared to make hard decisions to regroup or diversify accordingly. To support considered growth, the Yarnteen Board early on demonstrated a strong commitment to building the professional and business capacity of its own members, managers, and sta¤. To do this it established in-house training expertise to service the entire network. An important beneªt of its progressive development has been in sharing resources, experience, and solutions in times of crisis and adverse changes in the wider environment. Another has been the ability to take advantage of particular opportunities by sharing workload and risk.

THE MURDI PAAKI REGIONAL ASSEMBLY

e Murdi Paaki Regional Assembly (MPRA) is a legacy of the former Aborig- inal and Torres Strait Island Commission (ATSIC) Regional Council, and its e¤orts to transform into a regional authority. After the unilateral abolition of ATSIC by the Australian government in , a group of regional leaders who had been involved with the ATSIC Regional Council legally took over the name Murdi Paaki and proceeded to consult with government about the design of a regional assembly. Today, MPRA is the peak structure that represents the interests of a total population of approximately eight thousand Aboriginal people from sixteen di¤erent communities across rural western New South Wales. e MPRA sees self-determination as key to the success of its unique governance model.

e key to the way forward is in the concepts and rights that we have implied into the terms “self- determination” and “sovereignty” when we use those words to F ROM L ITTLE T HINGS, B IG T HINGS G ROW Â¼½

describe a vision of what we would like our communities to be like and the way we want to live our lives as Indigenous peoples. e starting point for self- determination and Aboriginal sovereignty is the way in which it is expressed by Indigenous peoples at a grass-roots level. It is a bottom- up, rather than top- down approach. . . . e focus of our commitment is to strengthen the role and participation of the major and seven smaller communities in regional decision- making and service delivery in ways more directly relevant to the circumstances of the region’s Aboriginal people and to improve outcomes for them.Â

A major focus of the MPRA, and its sixteen di¤erent working parties from each of the communities, is to provide an interface for strategic engagement with the Australian and NSW governments and private sector stakeholders for the delivery of services and programs based on priorities determined by Aboriginal peoples in the region. As it has grown in conªdence and e¤ectiveness, the MPRA has taken on an increasingly extensive range of functions from political and cultural to social and economic. Over time, other MPRA organizations have subsequently been created as a result of these expanding functions. e underlying aspiration in all this has been the incremental assertion and practical exercise of jurisdiction and self-governance. e assembly’s structure is a customized solution to the desire of Aborigi- nal peoples in the region to have a united and independent voice. e multiple layers of diverse community structures and entities makes it an important study of governance innovation and strategic networking. e peak structure has remained nonincorporated but rests on a foundation of close alliance to its member incorporated community organizations and representative community working parties. e progressive development of a regional network that includes both incorporated and unincorporated structures has given a unique governance and organizational identity to the MPRA. In the absence of legislated powers or rights, a Charter of Governance provides the internal regulation, objectives, and principles under which MPRA operates. e charter expresses the MPRA’s resolve, on behalf of its member communities and organizations, to manage their own a¤airs, build sustainable communities, and determine their own future. Each of the sixteen community working parties has in turn developed its own terms of reference and a code of conduct to guide them, as well as a Community Action Plan that they negotiate with governments to deliver Â¼¾ D IANE SMITH in partnership. Each plan is used to inform the MPRA’s “Regional Strategic Action Plan.” e MPRA made a deliberate decision to remain unincorporated in order to focus on advocacy, governance, and leadership, which it believes are the corner- stones to self-determination and building strong service delivery partnerships. Its vision is to establish Aboriginal jurisdiction in the Murdi Paaki region based on its recognition that “real power rests in determining how and where resources and services are to be allocated. e Assembly seeks to negotiate as a full and equal partner in any new government arrangements.”·Ã In addition, “We will never be abolished and never have administrators appointed. e community set the structure, not the government. It is traditional governance” (Ferguson ). e MPRA commenced with a strong initial vision of securing regional and community self-determination and economic well-being. at vision has continued to provide it with stability as it progressively expanded functions and its authority.

THE MARTU HOUSEHOLD SURVEY

e Martu people in the remote Western Desert region of Western Austra- lia (WA) have long been involved in legal negotiations to have their native title recognized and used that process as leverage to bring various stakeholders together to sign o¤ on the Wiluna Regional Partnership Agreement (WRPA). e WRPA was signed in under a memorandum of understanding (MOU) between representatives of the Marta Aboriginal peoples, the Minerals Council of Australia, the Australian government, the WA government, Wiluna Shire, a number of mining companies in the region, the Central Desert Native Title Services, Technical and Further Education or TAFE (in Wiluna, the Durack Institute of Technology), and the Wiluna Remote School. Wiluna is a small town kilometers north of Kalgoorlie in WA’s Goldªelds Region, which has a predominantly Aboriginal population. e purpose of the MOU was to contribute to the development of self- sustaining and prosperous Aboriginal communities in the Wiluna region, an area with a high level of mining exploration and production. e focus is on employment, training, and business opportunities. In negotiating their participation and priorities in the MOU, Martu leaders formed the Muntjiljtarra Wurrgumu Group (MWG), which bought together a representative group of Martu families who live in Wiluna, Bondinni, Kutkububba, Ngurra Yuldoo, and Windidda communities. F ROM L ITTLE T HINGS, B IG T HINGS G ROW Â¼¿

e idea of conducting a household survey in the Wiluna region arose during WRPA stakeholder consultations with Wiluna Martu community members. It was suggested that documenting the views of youth and adults about their aspirations for employment, training, and business creation, and identifying the major barriers to those aspirations, would better inform the WRPA. To give greater voice to Martu, the MWG considered it essential that any survey to understand the opportunities and challenges to employment and enterprise creation should be conducted for Martu by Martu. at priority was supported by the MOU partners. e desire for genuine local decision-making control over the process was a strong motivation behind what was to become an innovative research initiative.

Our project is controlled percent by Aboriginal people. All of the decisions are made by the MWG Aboriginal members. We do not have a chairperson but rather we work as a collective to make our decisions as a group. . . . We wanted to have a voice and be part of the decision-making of our community and not be told what will be done to us. We want to tell government and employers what we want to do and how. We especially want people to respect us and how we live and our cultural backgrounds and ways.··

Between May and September , the survey was researched, planned, tested, and administered to more than one hundred Martu people across the communities, and the results were analyzed by Martu people themselves. at process ensured Martu community participation, ownership, and skills development in a direct and immediate way: “ at Martu people designed and carried out the household survey is, in itself, a breakthrough. Too often, communities are forced to rely on what experts from faraway places say about their situation, and if the residents disagree with the experts their views are rarely acknowledged” (Langton ). e outcome has been a dramatically increased perception and actual experience of enhanced Martu self-determination.

Martu did not have proper leverage on the RPA Steering Committee but now with the new RPA we have a proper and stronger voice and we are together as one working together. Our greatest success was that the survey was conducted and controlled by Martu . . . like computer work, researching, interviewing and public speaking. We are proud we did it. We also found out exactly what is holding Martu back from getting work.·¸ Â¼À D IANE SMITH

A key to governance e¤ectiveness, as the Martu people demonstrated, has been to exercise self-determination here and now, in the real world, over what may be considered mundane but are practical things that matter to people. Another key to success was to have the initiative conducted by respected leaders who were able to bring others along on the journey. Especially signiªcant is that their success in e¤ectively governing and implementing a small research initiative has given the MWG and Martu people a considerably stronger voice within the MOU and with its partners. ese partners now look to the MWG as a source of authoritative opinion and decision-making on behalf of Martu about particular matters. For example, the survey results spurred one mining company to run its own pilot project, to provide future employment opportunities in the mine for the local community.

INSIGHTS FROM INCREMENTAL GOVERNANCE

E¤ective self-governance does not follow a recipe, nor does it automatically have to be linked to jurisdictional government or ¢ow from securing legal rights and recognition. In the real world, self-governance operates along a continuum, adopting many guises. In short, there is no simple formulae for building and sustaining successful governance. ere are as many “intangible” subjective qualities involved as there are “hard” indicators. But the brief case studies in this chapter suggest that in the absence of substantive jurisdictional powers and rights, a critically important factor in maximizing self-determined governance is to take a strategic incremental approach, developing “ªt for purpose” governance structures and related governing skills that closely align with speciªc priorities and group expectations. In that way, collective social learning and consensus are strengthened, enabling groups to pursue bigger goals over time. Perhaps even more signiªcantly, an incremental approach facilitates the consideration of some centrally important matters by Indigenous Australians.

THE INTANGIBLES OF CULTURE

Perhaps the most important intangible consideration when designing governance arrangements that will be judged as being credible by group members is that of “culture” itself. e Australian case study research indicates that F ROM L ITTLE T HINGS, B IG T HINGS G ROW Â¼Á

Indigenous Australians share a deep desire to ensure that their diverse cultures continue to have a place in their governance arrangements, a place that is both respected and practically workable (Dodson and Smith ; Hunt et al. ; Smith ). However, a major challenge that follows from this is that groups have to work through the extent to which di¤erent aspects of their culture, such as laws, beliefs, relationships, values, ways of doing things, should—or should not—be integrated into their governance; and how that can be done in ways that governance is both credible and delivers practical outcomes. In Australia, it appears that there are several variables that help Indige- nous groups achieve the delicate balancing of cultural legitimacy and practical e¤ectiveness in their governance solutions. One is the use of their own cultural geographies of identity as the basis for rebuilding governance arrangements and mobilizing group support. But the extent to which cultural geographies are successfully used to build governance also depends on the proposed development objectives and functions. For example, cultural geographies are relevant for small-scale heritage protection and larger land, sea, and conservation initiatives but may be incompatible or inappropriate for a business or peak body working across several regions or jurisdictions. Also, industry-speciªc initiatives can have speciªc governance needs. Health organizations have very particular clinical health governance standards and practice frameworks that mean there is a need for medical expertise on their governing boards. ere is no simple fast-track answer to working out the place of culture in governance arrangements. Culture needs to be considered in each situation. However, a fundamental principle upon which the process must be based is that of informed Indigenous choice. In other words, Indigenous groups have to generate the solutions on the bases of their own informed decision-making and priorities. e Australian experience suggests that incremental approaches are especially conducive to promoting informed consent and designing culturally credible solutions that work in practice. Designing such solutions takes time—time to consider issues, consult widely and inclusively, build consensus, and get feedback from community and regional members. And importantly, people need to be able to experiment, reªne, and adapt solutions as they go. What works at one point in time may have to be reconsidered at a later date. Incremental changes and experiments can be ªnessed, and invariably do less harm if they do not work, than radical proposals that are hastily implemented. Â½Ã D IANE SMITH

GOVERNANCE THAT IS FIT FOR PURPOSE

Another critical factor that comes into play from the very beginning of a governance-building initiative is the extent to which a proposed arrangement is “ªt for purpose.” In other words, is the governance model appropriate and well equipped to achieve the particular vision, activity, and goals sought by people? Being ªt for purpose includes governance arrangements also having a good “cultural ªt” or resonance, and alignment with social scale. In Australia, incremental approaches to rebuilding governance seem to commence with a strong preference among groups to remain local and unincorporated in order to retain maximum autonomy, decision-making ¢exibility, and strong cultural ways of governing. But this motivation can also change as group priorities change, and as conªdence grows in governing ability. A group or community’s governance may “ªt” its particular purposes now but may not be equally as e¤ective if priorities or the external environment change. An important issue to then consider is whether there is su©cient ¢exibility to enable adaptation, reªnement or remedial action to be taken in respect to governance arrangements when needed, while also sustaining the stability of core vision and robust institutions. An insight from the Australian case studies is that Indigenous groups are extremely innovative at maximizing ¢exibility by adapting their governance—experimenting and reªning to create customized solutions that do a particular job more e¤ectively. For example:

People consistently design and adapt structures to better align with their culturally based network of relationships and a©liations, or to accommodate new members, communities, and groups. is can be seen in small local organizations where the governance structure has been constructed to re¢ect kin, family, or land ownership connections. It can be seen in large peak bodies that service massive regional networks of communities and groups, or represent a diverse mix of di¤erent types of organizations. It can be seen in innovative models that are an amalgamation of several dif- ferent component structures that do di¤erent things; for example, where a number of nonincorporated groups enter into alliance with an incorporated organization or stakeholders to auspice the ªnancial and administrative aspects of the group’s operations. F ROM L ITTLE T HINGS, B IG T HINGS G ROW Â½Â

It can also be seen at work in the emergence of organizations that are incubated structures that have been mentored and “grown up” by a “parent” or host organization.

CONCLUSION: SELF¢DETERMINATION IN PRACTICE

While it is important, nations and communities do not need to have legislated rights or treaties in order to be able to govern well and achieve outcomes. But a critical factor is having governance arrangements that are capable of supporting the daily and often mundane practice of self-determination. For that to occur, people need to be fully engaged, have a voice in decisions, and be supported to think di¤erently about their options for the future. In Australia, this has meant dealing with the “dark side” of governance building; namely, addressing unresolved issues of who is the “self ” in self-governance, and dealing with the consequences of poorly considered actions where groups have tried to generate fast-track governance solutions in order to get economic development happening. In such circumstances, members can be left behind with little information and a growing distrust of their leaders. Today many Indigenous groups are extremely strategic about tactics for incrementally building the scope of their governing powers: by attempting to quarantine their decision-making and solutions from external intervention, avoiding government funding that comes with unwelcome strings attached, prioritizing customized “two-way” initiatives that reinforce their cultural identities alongside business acumen, and exercising governance in measured steps. It is in the daily practice of governance that self-determination is actually generated as a lived reality rather than a distant future goal. In Australia, examples of incremental governance-in-action include the renegotiation of group identities and intergroup relationships; entering into agreements and contracts on joint ventures and partnerships with external stakeholders; resolving cross- boundary and membership issues; designing workable policies, regulations, and structures; and redesigning governance models and constitutions. ese are all acts of self-governance. From this viewpoint, the practice of exercising capable governance on a mundane daily basis is actually the work of asserting and sustaining rights. Â½Ä D IANE SMITH

It is from collective social learning and the accumulation of incremental authority and ability over these “little things” that big governance can grow. As a strategy, it permits people to learn through a process of trial and error, converg- ing gradually on a workable solution through a process of successive experiences. It also allows experimentation to proceed at a more considered pace, with time to assess and adapt chosen design solutions. ese insights from the Australian experience are instructive for Indigenous peoples where the colonizing state is less than supportive of their rights to self-governance.

NOTES

I am deeply indebted to Neil Sterrit’s original insights into the potential advantages of incremental approaches to governance both in Australia and Canada, which he laid out in an insightful keynote presentation titled “ e Trials and Legacies of Mabo and Delgamuukw: Converting Rights into Outcomes for Indig- enous Australians and Canadians” (Australian Institute of Aboriginal and Torres Strait Islander Studies, Native Title Conference, Cairns, North Queensland, ). In Australia the term Indigenous is used to refer to either and both Aboriginal and Torres Strait Islander peoples. In the national census reported there were approximately , Indigenous Australians. See http://www .recognise .org .au. e Australian “Recognise Campaign” was hosted by Reconciliation Australia and the Australian government. at public campaign has been superceded in recent years by fragmenting debates and initiatives; some by governments at di¤erent jurisdictions, and by a diverse range of Indigenous organizations and advocates. Hence, the website is no longer available. is right has been exercised by Northern Territory “Aboriginal traditional owners,” in order to negotiate major resource development agreements that have delivered substantial royalty ¢ows and other beneªts to them. But it has also been a hotly contested right that has met with substantial public and Northern Territory government opposition whenever it has been asserted, usually with traditional owners being characterized as “anti- development.” is veto right of traditional owners can also be overridden by the Australian government in the “national interest.” On the ICG Project, see http:// caepr .cass .anu .edu .au/ indigenous -community -governance; on the governance report, see http:// aboriginalgovernance .org .au/ resources/ from -research. ALPA, “Board of Directors,” accessed April , , https:// www .alpa .asn .au/ board/. In the several years since the conference at which this chapter was originally presented, Western Desert Dialysis has expanded substantially, extending its services to more than fourteen remote communities and their medical clinics. As part of that expansion, WDD renamed itself “Purple House” to resonate with its graphic use of colorful purple desert-style dot paintings on the original mobile dialysis vehicle (the F ROM L ITTLE T HINGS, B IG T HINGS G ROW Â½Å

Purple Truck). e newly established building for the organization’s main o©ce in Alice Springs was called the Purple House and followed the same colorful pattern. For further information on the history and current role of the organization, see Purple House, accessed April , , https://www .purplehouse .org .au/. Western Desert Dialysis, accessed October , , http:// www .westerndesertdialysis .com/ (site discontinued). See “About Yarnteen,” accessed March , , http:// www .yarnteen .com .au/; see also Smith . Murdi Paaki Regional Assembly, “Charter of Governance,” September , pp. , , http:// www .mpra .com .au/ uploads/ documents/ MPRA èCharter èof èGovernance .pdf. Murdi Paaki Regional Assembly, “Charter of Governance,” . MWG representatives speech, Indigenous governance awards, . MWG representatives speech, Indigenous governance awards, .

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Hemming, S., D. Rigney, and S. Berg. . “Researching on Ngarrindjeri Ruwe/Ruwar: Methodologies for Positive Transformation.” Australian Aboriginal Studies (): – . Hunt, J., D. Smith, S. Garling, and W. Sanders, eds. . Contested Governance: Cul- ture, Power and Institutions in Indigenous Australia. CAEPR Research Monograph . Canberra: ANU E Press. Langton, M. . Foreword to “Martu Attitudinal Survey.” http: issuu .com/ wilunapartnership/ docs/ martu _survey _part _a. Nettheim, G., G. Meyers, and D. Craig. . Indigenous Peoples and Governance Struc- tures: A Comparative Analysis of Land and Resource Management Rights. Canberra: Aboriginal Studies Press, Australian Institute of Aboriginal and Torres Strait Islander Studies. ORIC (O©ce of the Registrar of Indigenous Corporations). . “Analysing Key Char- acteristics in Indigenous Corporate Failure.” ORIC research paper, O©ce of the Reg- istrar of Indigenous Corporations, Canberra. http:// www .oric .gov .au/ publications/ other -report/ analysing -key -characteristics -indigenous -corporate -failure. ORIC (O©ce of the Registrar of Indigenous Corporations). . “ e Top Aboriginal and Torres Strait Islander Corporations –.” ORIC research paper, O©ce of the Registrar of Indigenous Corporations, Canberra. http:// www .oric .gov .au/ publications/ top - -report/ top - -aboriginal -and -torres -strait -islander -corporations - -. Reynolds, H. . Why Weren’t We Told. London: Penguin. Roche, C., and J. Ensor. . “Independent Evaluation of the Central Land Council’s Community Development and Governance Programmes.” Central Land Council, Alice Springs, N.T., March. https:// www .clc .org .au/ ªles/ pdf/ CLC _CDU _Eval _Report _Update_small .pdf. Ross, D. . “Introduction.” Presentation to the Tennant Creek Governance Sum- mit, Aboriginal Peak Organisations Northern Territory (APO NT), Alice Springs, N.T., April – . http:// www .amsant .org .au/ apont/ our -work/ summits/ governance -summit-th -th -april - /. Smith, D. E. . “Networked Governance: Issues of Policy, Power and Process in a West Arnhem Land Regional Initiative.” Nigya: Talk the Law, Governance in Indig- enous Communities :– . Smith, D. E. . “ e Business of Governing: Building Institutional Capital in an Urban Enterprise.” In Contested Governance: Culture, Power and Institutions in Indig- enous Australia, edited by J. Hunt, D. Smith, S. Garling, and W. Sanders, – . CAEPR Monograph . Canberra: ANU E Press. Smith, D. E. . “Organising Aboriginal Governance: Pathways to Self- Determined Success in the Northern Territory, Australia.” Research report to the Aboriginal Governance and Management Program, Aboriginal Peak Organisations of the NT, Darwin, N.T. ¦

WHĀNAU ORA

Building Māori Self-Determination in Aotearoa / New Zealand

³®¸·® ¯¸¯µµ±«°Ç

HE CONTEMPORARY regeneration of self-determination in Aotearoa / New Zealand has been spearheaded by two initiatives: treaty settle- Tments and Whānau Ora. Treaty settlements repatriate some economic resources to tribal organizations as recognition of historical injustices, and in doing so enable tribal organizations to self-determine their development trajectory both in how they manage signiªcant commercial resources and how those resources are used to fund tribal rejuvenation according to their own aspirations. Treaty settlements and tribal governance have tended to capture the academic limelight because these are the primary driver of tribal/nation rebuilding that catalyzes the reconstitution of formal institutions of tribal self-governance and economic growth for the purpose of futures making. Whānau Ora is an equally important companion initiative that contributes to self-determination from the “ground up,” rebuilding capability at the whānau (family) and community level to be self-determining. is chapter argues that Whānau Ora and initiatives of its kind are critical to self-determination moving beyond the normative right and constitutional rebuilding at a tribal level into a lived reality within Indigenous communities. After describing the concept and practice of Whānau Ora, this chapter demonstrates the contribution it makes to self-determination and the importance of partnering these types of initiatives with tribal-level self-determination. Â½¾ S ACHA M CM EEKING

WHĀNAU ORA: THE CONCEPT, PHILOSOPHY, AND PRACTICE

Whānau Ora is a culturally embedded concept of “family well-being” that is now the rubric for a compendium of nationwide initiatives, including public policy reforms, the redesign of social service delivery, and new opportunities for “bottom-up” transformation. At its simplest, Whānau Ora is a devolution policy philosophically anchored in whānau self-determination that aims to transform the lived realities that accompany the disproportionate social disadvantage experienced by Māori, in common with Indigenous peoples globally. Importantly for this chapter, Whānau Ora considers that whānau well-being will be achieved through growing whānau self-determination, which is consistent with the view that increased personal agency and command over one’s life contributes to positive health and social outcomes (Murphy a, b). e genesis of Whānau Ora can be traced to the convergence of three signif- icant forces: the visibility of enduring and pressing disadvantage experienced by Māori, academic validation of Māori models of social transformation, and timely political patronage. Māori, the original inhabitants of New Zealand, are a Polynesian people who migrated across the Paciªc Ocean between AD and . Traditional societal structures were anchored in the whānau (extended family), hapū (clan or subtribe) and iwi (tribe). New Zealand was colonized by the British in the s, and in common with Indigenous peoples globally, the contemporary socioeconomic experiences of Māori have a causal relationship with colonization. e widespread expropriation of land, which is critical to cultural identity, community cohesion, and economic sustainability, was combined with overt assimilationist programs that criminalized and otherwise discouraged the retention of cultural identity, language, and practice. e intergenerational legacy of colonization is, as described by a United Nations Special Rapporteur, that Māori experience extreme disadvantage in social and economic con - ditions, which manifests across a range of indicators including education, health, and income ( J. Anaya ). As Māori now comprise percent of New Zealand’s population, the scale of the socioeconomic position of Māori and the known cycle of interdependency between elements of disadvantage have ensured that the position of Māori within the nation has high political visibility, albeit rarely constructively portrayed. Whānau Ora was in part cat- alyzed by these persistent trends indicating pervasive Māori disadvantage and W HĀNAU ORA Â½¿ the manifest ine©cacy of existing government-led responses to bring about material or enduring change. e premise and architecture of Whānau Ora is arguably grounded in the academic work of Sir Mason Durie, a distinguished Māori academic. His body of work, stretching over decades, has propounded a key thesis that Māori transformation must be led by Māori, premised in Māori knowledge and infused with belief in the capability of Māori to develop sustainable change on their own terms. is thesis re¢ects an inherent and critical value being placed on self-determined approaches that are founded in Māori values, knowledge, and philosophies (Durie , ). Equally, his work elegantly reframes the popu- lar positioning of Māori as a “problem people” who experience challenges, many of which have a chain of causation rooted in colonization, and have the requisite resources and capabilities to forge solutions. e corollary of Durie’s work is that government-led solutions are conªned to limited e©cacy, unless and until they are reconceptualized from within Māori cultural knowledge and involve signiªcant Māori leadership in their design and delivery. Whānau Ora is such a reconceptualization that emanates from Māori knowledge to include descriptive, aspirational, and instrumental elements. Whānau Ora, while literally translated as family well-being, draws upon deeper tradition- based understandings of the role of collective well-being in enabling individual quality of life and the holistic interdependency of cultural, social, economic, political, and environmental facets to well-being. In a descriptive sense, Whānau Ora conceptualizes what well-being means within a Māori framework, which has been articulated as follows.

e mental, emotional, physical and spiritual state is shaped, maintained and contained in the context of whānau [family] relationships. erefore, when an individual is not well, a whānau is not well. Conversely, when a whānau is not well, individuals are adversely impacted. Whānau ora is a state of collective wellbeing that is integrated, indivisible, interconnected and whole. (Lawson- TeAho , )

is holistic concept of collective well-being has been crystallized into seven outcome areas that Māori leaders have endorsed as re¢ecting culturally based understandings of well-being: that whānau (families) are

self-managing and empowered leaders; living healthy lifestyles; Â½À S ACHA M CM EEKING

participating fully in society; participating conªdently in Te Ao Māori (the Māori world); economically secure and successfully involved in wealth creation; cohesive, resilient, and nurturing (Durie et al. ); and responsible stewards of their living and natural environments. (TPK , )

Within a Whānau Ora framework, the presence, experience, and signiªcance of each of these outcome areas is expected to vary between whānau, recognizing that a critical element of well-being is self-determining the meaning of quality of life and the form in which it manifests. In an aspirational sense, Whānau Ora represents more than merely social gains. While positive advancements in Māori health, education, criminal justice, and income-level outcomes is to be celebrated, Whānau Ora represents a more expansive, purposive agenda of rebuilding Māori self-determination from the platform of whānau aspirations. One of the key actors in designing the Whānau Ora framework emphasized the importance of achieving social, economic, cultural, and collective gains, within a broader aspiration of strengthening reciprocal commitments between and across generations, as well as between individuals and the collectives they belong to by genealogy and identity (families, hapū, tribes, and other communities) (Durie et al. ). Whānau Ora is in equal measure focused on short- to medium-term gains for Māori, as well as a social change movement that seeks to rebuild collective capabilities and resources to be self-determining as a people. Instrumentally, the holistic and family-centered essence of Whānau Ora generates two signiªcant departures from the dominant government-led approach to addressing social disadvantage. First, Whānau Ora is premised on a “whānau-centered” approach to achieving social gains: the focus should be on working with the collective holistically rather than solely with an individual. Second, Whānau Ora resolutely advances a “strengths-based” approach to working with whānau: recognizing and building on the existing capabilities and aspirations within whānau to generate their own solutions and pathways. ese two critical elements of Whānau Ora stand in marked contrast to the positivist, expert-led interventionist approach of mainstream approaches to social needs. e New Zealand government has recognized the dissonance between existing government-led services and Whānau Ora, and importantly realizes that the existing approach is not achieving social gains for Māori. W HĀNAU ORA Â½Á

Government health and social services for Māori have not typically been designed to take a whānau centred approach, focusing instead on individuals and single- issue problems. As a result, delivery of services to whānau has often been fragmented, lacking integration and coordination across agencies and social service providers, and unable to address complexities where several problems coexist. (TPK , )

In composite, Whānau Ora is both a critical framework that challenges mainstream approaches to social need and a culturally embedded model that aims to achieve social, economic, and cultural gains, while pursuing an aspirational purpose of rebuilding Māori self-determination, from an originating point of whānau-centered, strengths-based, and holistic family well-being. Whānau Ora has, remarkably and with remarkable speed, transitioned from a philosophical and conceptual approach into substantial public policy reforms, the redesign of service delivery and practice models, and the creation of new ªnanc- ing mechanisms that intentionally advance whānau-initiated transformation. e public policy reforms commenced with greater integration and alignment of government departments, particularly in the areas of health, social services, and Māori development. e rationale was that, to achieve a genuinely whānau- centered approach, traditional silos need to be broken down so that government can be responsive to whānau aspirations and challenges, which rarely, if ever, align with prescribed departmental responsibilities. Government agencies were also directed to adopt approaches driven by outcome rather than output to procuring and evaluating investments in social change within Māori communities. e outcomes adopted by the government were the seven outcome areas described above as re¢ecting Māori concepts of whānau well-being. More profound public policy changes followed after the evolution of service delivery models. Service delivery models transitioned into a whānau-centered approach in three prominent ways: a whānau-centered practice model was recognized; in partnership with government, integrated contracting was adopted to support this new practice model; and a new role was created termed a “Whānau Ora Navigator.” e whānau-centered practice model encourages service providers to work with the whole whānau and engage with the holistic, interdependent facets of well-being across cultural, social, economic, and environmental domains. Many social service providers working with Māori communities stridently, and with cause, argue that they have always worked from a base of Māori knowledge Â¾Ã S ACHA M CM EEKING and, in doing so, have implicitly adopted a whānau-centered practice model (Dormer ). ey assert that the primary barrier to this form of holistic engagement with whānau are prescriptive, fragmented, and compliance-driven contracting arrangements with government (Durie et al. ). To varying degrees, the new approach of integrated contracting for social service delivery has lessened but not cured these barriers to whānau-centered models. e most tangible expression of the whānau-centered, strengths-based approach was the creation of Whānau Ora Navigator roles across the country. Navigators work directly with whānau as a holistic support, broker, facilitator, and advocate. e navigator practice model centers on working with whānau to create whānau plans: collectively developed realistic and aspirational plans to build whānau capability to make sustainable changes. rough whānau planning, Navigators work with whānau to identify their strengths, nurture their aspirations, and provide multidisciplinary support to access relevant resources and broker or advocate for access to services and opportunities relevant to the whānau plan. e process of goal setting, skills building, and achievement toward aspirations is considered a critical contribution to building whānau self-determination, and through that, whānau well-being (TPK ). e latter stage of Whānau Ora has focused on new ªnancing mechanisms that intentionally enable whānau-led, bottom-up transformation. Initially, the Ministry of Māori Development, the government agency with principal responsibility for Whānau Ora, administered a fund that families could apply to for support in developing a whānau plan or making progress toward goals contained in a whānau plan. Known as the Whānau Integration, Innovation and Engage- ment Fund (WIIE Fund), this was a direct ªnancing model for whānau aspirations. During the period it was operative, –, the WIIE Fund supported two thousand families, reaching approximately thirty-three thousand people, with microgrants (from NZÇ, to Ç,) to develop and progress goals pertaining to education, health, employment, housing, and homeownership (TPK ). An example of a whānau plan supported by the WIIE Fund is an extended family that decided they would jointly rebuild their papakāinga (homestead on their ancestral land). Some of the younger generation wanted to return from urban centers to their ancestral land, but the existing papakāinga was not habitable. With help from a Whānau Ora Navigator, the whānau prepared a three-year plan to redevelop and reoccupy the papakāinga, including ªnancing strategies, surveying the land, and managing the relevant legal processes (OAG ). is example re¢ects both the aspirational nature of Whānau Ora and the value placed W HĀNAU ORA Â¾Â on cultural, social, and economic gains: returning to ancestral lands reconnects whānau with their cultural identity, a source of resilience, while also strengthening whānau cohesion and creating economic security from existing assets. e second stage of the ªnancing reform is a bold devolution program. ree new entities, known as Whānau Ora Commissioning Agencies, were established in with responsibility for commissioning Whānau Ora outcomes using government monies. ese entities are independent of government and have a reasonable degree of latitude in their model of commissioning and priorities for investment. ese characteristics enable a localized, responsive approach to whānau-centered, strengths-based initiatives that generate social, cultural, and economic gains by and for Māori communities. e Whānau Ora Commis- sioning Agencies are now collectively responsible for approximately Ç million per annum, comprising a quantum of ongoing Whānau Ora–tagged commissioning funds and ad hoc amounts of additional government funds transferred for speciªed areas of social gain. In New Zealand terms, funds of this quantum are notable. e scale and relative autonomy in commissioning has enabled signiªcant advances in whānau-led transformation initiatives and novel service models, producing social change within Māori communities that is both critical to address known disparities and inspiring in its courage, diversity, and impact. e devolution model itself is arguably one of, if not the most, signiªcant transfers of responsibility from the government to Māori in New Zealand’s history, as it allows Māori to lead their own transformation journeys, premised on cultural knowledge and holistic concepts of well-being. e magnitude of this reform cannot be overstated and is attributable to the leadership of many people, but paramount in warranting recognition is Dame Tar- iana Turia, the former co-leader of the Māori Party and ªrst minister of Whānau Ora. Without her fortitude, vision, and resolute belief in the transformative potential of both whānau and Whānau Ora, Whānau Ora would likely not have been birthed, let alone grown into a comprehensive reform program that has devolved signiªcant government monies and responsibilities to Māori communities to lead their approach to rebuilding whānau self-determination and well-being.

WHĀNAU ORA AND SELF¢ DETERMINATION

In the twenty-ªrst century, self-determination is increasingly an implementation challenge more than a normative contest. e grand debate about whether Â¾Ä S ACHA M CM EEKING

Indigenous peoples have the right to self-determine their political, social, and cultural futures has been ostensibly, if imperfectly, “won” for now, re¢ected in the adoption of the United Nations Declaration on the Rights of Indigenous Peo- ples (UNDRIP) and various domestic advances. e next phase in regenerating self-determination for Indigenous peoples will be largely reliant on the creativity and acuity of Indigenous peoples to be self-determining on their own terms, albeit within the conªnes of state policy and legislation, again, for now. ere is no “how-to” guide on being self-determining, but two strategies are particularly prominent in the literature: rebuilding the institutions of governance aligned to cultural values (Cornell and Kalt ), and enacting everyday practices of resurgence such as reconnecting with ancestral lands, revitalizing language, and reincorporating traditional foods into our diet (Corntassel ). Whānau Ora embraces both strategies and o¤ers further insights into an integrated approach to practicing self-determination, including greater autonomy and empowering communities to drive their own destinies in all spheres of life. e political essence of self-determination is autonomy over development, in the sense of both possessing decision-making authority and having the requisite institutions in place to make decisions. Whānau Ora, through the devolution of funding and decision-making over investment in whānau well-being, vests a signiªcant degree of autonomy in the Whānau Ora Com- missioning Agencies. Consistent with commissioning models globally, the agencies are responsible for procuring initiatives that contribute meaningfully toward whānau well-being. To do so, they are responsible for a cycle of strategic commissioning activities that involves identifying community aspirations through initial and ongoing community engagement, and developing investment streams and strategic planning for investment to achieve whānau well-being outcomes (TPK ). e agencies have each developed distinctive approaches to their commissioning but share the most important commonality of responding to developmental priorities identiªed by their communities in determining what they invest and how they invest (TPK ). is ability for Māori to control when, how, and on what funding formerly held by the Crown is invested in, for, and by Māori communities is an unparalleled expression of self-determination in Aotearoa / New Zealand. It is important to recognize this as the government transferring substantive real authority to Māori, but more so, that the commissioning agencies have autonomy over supporting Māori to self-determine their own destinies, which is surely the most important means to realize self-determination. W HĀNAU ORA Â¾Å

e formation of Whānau Ora policy and the establishment of the commissioning agencies was also important as it re¢ected S. James Anaya’s “constitutive self-determination” (a). Constitutive self-determination recognizes that Indigenous peoples’ participation in, and consent to, the development of governing institutions is an expression of self-determination, as well as fundamental to the legitimacy of the resulting institutions (S. J. Anaya a). Whānau Ora was designed by Māori experts and leaders through the initial taskforce, which engaged extensively with Māori communities across the country to distil the philosophical tenets and policy architecture that re¢ected broad-based Māori aspirations and consensus (Durie et al. ). As Whānau Ora evolved, there were layers of Māori governance at local, regional, and national levels to ensure it remained representative of Māori views and connected to the community it is designed to serve (TPK ). e commissioning agencies formalized Māori governance at a subnational level by dividing the country into two geographical regions (North Island and South Island). e two Māori commissioning agencies were selected through an open tender process that enabled Māori to explore and constitute the entities they wished to be responsible for commissioning, albeit with the ªnal selection being made by the government. e outcome was that an urban Māori coalition became responsible for commissioning in the North Island and a tribal partnership for the South Island. Both entities are governed by Māori and accountable to their communities through formal and informal channels, as well as being ultimately responsible to government through their contracting arrangements for the annual transfer of funds. ere is also a national level Māori partnership group that advises the responsible government minister on the wider transformation agenda of Whānau Ora, including the work of the commissioning agencies and cross-government implementation of whānau-centered policy and service design (TPK ). e extensive involvement of Māori across the development, governance, and implementation of Whānau Ora is signiªcant because it is a notable departure from traditional government policy development in procedural and substantive respects. Procedurally, the customary policy process is for government to design the proposed framework to a high level of detail and then consult on it through asymmetrical processes under which the government retains decision-making power. Whānau Ora in contrast was led by Māori from conception, with the apparatus of government marshaled to give e¤ect to Māori aspirations. Sub- stantively, power has progressively shifted from the government to Māori in real terms and it can be hoped that as the commissioning agencies demonstrate Â¾¼ S ACHA M CM EEKING whānau well-being outcomes, further powers may be transferred. is constitutive approach to self-determination has important precedent value for reframing government policy development processes, and perhaps serves as a transferrable method for increasing the implementation of self-determination. Whānau Ora illustrates the potential value, to borrow language from the business domain, of “vertically integrated” self-determination, across macro, meso, and micro levels. When considering systemic transformation, there is value in considering the loci and relationship between di¤erent levels of institutional actors (Grimm et al. ). e macro level encompasses national institutional arrangements as well as social and economic policy and regulatory frameworks. Whānau Ora has instituted macro-level institutional and normative changes, respectively through the devolution approach, better integration of government departments’ responsibilities through increased collaboration, and the deeper level promulga- tion of attitudinal shifts to recognize preexisting strengths and capabilities within Māori communities. At the meso level, the commissioning agencies reinforce the normative shifts occurring at a macro level and create an institutional infrastructure for Māori to hold and responsibly discharge decision-making authority over investment in whānau transformation. At the micro level, Whānau Ora engages directly with whānau, individuals, and communities through the Whānau Ora Navigators, who have a critical role in working with whānau to lift their aspirations and become self-determining as well as providing direct ªnancing and capability building for a range of initiatives identiªed and led by whānau that may include, but are not limited to, Māori forms of social entrepreneurship. is vertical connectivity is arguably a critical success factor for Whānau Ora, and may be of precedent value for progressing Indigenous people’s self-determination, particularly given the strategic sequencing within the program. Initially, focus was contemporaneously on macro and micro levels, reshaping government systems and piloting direct ªnancing for bottom-up innovation, with the institutional redesign of new meso-level institutions being the ªnal stage of transition, when palates had become accustomed to the normative agenda and conditioned for devolution (TPK a, b, c). is method may have transferrable value across jurisdictions for cultivating the transfer of powers from government to Indigenous communities. Perhaps the more important, but less tangible, precedent value of Whānau Ora is how it seeks to enable Anaya’s concept of ongoing self-determination, which is concerned with empowering individuals and communities to lead and deªne their own development in all spheres of life, on a continuous basis (S. J. W HĀNAU ORA Â¾½

Anaya b). e real ability to be self-determining, to be an active agent in futures making, is arguably the ultimate objective of self-determination.

e true test of self-determination is not whether Indigenous Peoples have their own institutions of self- determination. . . . e true test . . . is whether Indigenous Peoples themselves actually feel they have choices about their way of life . . . [and therefore] to live well and humanly in their own ways. (Ferrell , –)

Whānau Ora is philosophically anchored in empowering whānau. Since inception, the initiative has used the rhetoric of “strengths-based,” which means believing in and building on the existing capabilities of whānau and communities. Mark Solomon describes this approach as follows.

e key to Whānau Ora is in local solutions and that whānau know best what works for them. . . . We ªrmly believe our way of working and empowering whānau to ªnd the solutions themselves is the right approach. We envisaged that change could and would come from the ¢ax [grass] roots and that the pathway of change to greater self-determination and choice would be created by whānau entrepreneurs and leaders operating on the ground and prepared to take their wider communities with them. We saw Whānau Ora as an opportunity to . . . foster a pipeline of investment in whānau capability. (quoted in TPK , )

is approach positions self-determination as a journey for Indigenous peoples that necessitates building the capability to be self-determining. In the context of generations of colonial disempowerment, it is intuitively right to expect that there will need to be a bridge between the intentional deconstruc- tion of Indigenous self-determination and being actively self-determining and futures-making as a people. e relationship between capability development and being self-determining is well established in community development literature, which positions capability development as having both an intrinsic and an instrumental value in development (Sen , , , ; Murphy a, b). Capability development is seen as a process of increasing the command people have over their lives; on a collective basis, it increases the community’s ability to determine and enact for themselves their own priorities (Murphy a, b). Whānau Ora has contributed to capability development within Māori communities at macro, meso, and micro levels. At the macro level of the national Â¾¾ S ACHA M CM EEKING policy framework, Whānau Ora has enabled Māori participating in the transformation agenda to build and leverage their capability, but more importantly, the macro-level architecture has created the space for micro-level capability development within whānau and communities. e commissioning agencies, to varying degrees, are investing directly in whānau and community initiatives rather than solely investing in established expert-led health and social service organizations. e South Island Whānau Ora Commissioning Agency, Te Pūtahitanga o Te Waipounamu, is particularly committed to investing in whānau and community innovation (Savage et al. ). e agency is explicitly committed to growing whānau and community capability to design and sustain the initiatives those change agents believe are the most meaningful contributions to their whānau and community. Participants recognize the capability development they have been exposed to as building their ability to be self- determining by increasing their personal knowledge, power, and courage to continue innovating on behalf of their whānau and community (Savage et al. ). In this sense, capability development is both an intrinsic and instrumental contributor to self-determination: the initiatives that are being invested in have an intrinsic value for the community because they deliver an outcome the community desires—in acting on community priorities, they are practicing self- determination. In delivering the initiative and building capability by doing so, they are growing the individual and collective ability within the community to aspire to further, bolder horizons and have the knowledge, skills, and resources to know how to reach those horizons, which in a self-determination frame is the ability to create their own destinies. A recent evaluation of Te Pūtahitanga’s work found that

[self-determination] is about whānau driving the change towards social, economic and cultural improvement and developing the skills and securing the resources to ensure these improvements are sustainable. . . . Te Pūtahitanga has been pivotal in bringing about collective rangatiratanga [self-determination] through an emancipatory (bottom up) approach. (Savage et al. , )

A practical example of this is the investment in Omaka Marae. Marae within precontact Māori society were the community hub and remain a fundamentally important cultural and community institution. rough a combination of colonial policies and geographical isolation, many marae have limited descendants living close by and are less active as a community hub. W HĀNAU ORA Â¾¿

ere is a strong drive to rejuvenate marae and grow the number of active participants in marae activities, as an intrinsic good that contributes to whānau and community well-being. Omaka marae sought investment from Te Pūta- hitanga for a combination of initiatives designed to bring children and young people back to the marae to learn language and cultural practices, as well as a boutique food business drawing on traditional food to contribute to economic growth and job creation within the marae (Savage et al. ). ese initiatives are self-determination in action because they re¢ect the priorities and aspirations of Omaka marae being made real. Equally, by the proponents growing their capability through delivering these projects, they are strengthening their ability to continue dreaming, designing, and delivering future projects that further their community aspirations. is type of example, of which there are many from Whānau Ora investment, would also likely satisfy Taiaiake Alfred and Je¤ Corntassel’s () view of “everyday resurgence” as a means for enlivening self-determination. ey encourage Indigenous peoples to engage in everyday practices that re¢ect and grow self-determination, such as reconnecting with ancestral landscapes, revitalizing Indigenous language, and reincorporating traditional foods into contemporary diets. e capability development enabled by Whānau Ora, therefore, can be seen to contribute to self-determination at all levels, from national advocacy to everyday practice, with particular importance on nurturing individuals and groups of change agents who are committed to making practical advances in our collective self-determination. ere is also an emerging view that Whānau Ora could be building a social movement for enacting self-determination, distinct from the political movements that were so critical in the twentieth century for advancing the recognition of Indigenous rights (Savage et al. ). e characteristics of social movements include a common cause, visible constituency with some degree of collectivization in formal or informal organizations, and engagement in collective actions with some continuity and clarity of purpose over time (Batiwala ). Whānau Ora has a galvanizing, prominent cause of advancing whānau self-determination that unites a wide spectrum of activity across commissioning agencies, the government, whānau, and communities. Whānau Ora, if it crystal- lizes into a social movement, will be powerful because it will promulgate belief in Māori capability to be aspirational and self-determining of our collective futures, and in doing so, it may have the potential to lift collective aspirations and agency in a tangible if not directly attributable way. A social movement of Â¾À S ACHA M CM EEKING this kind may have wider precedent value for Indigenous peoples as a bridge from colonial disempowerment to contemporary self-determination.

CONCLUDING THOUGHTS

Whānau Ora aims to enable individuals, whānau, and communities to create their own destinies through a simple recipe that has a high degree of nuance in its architecture. e simple recipe is to create whānau well-being by building whānau self-determination, and to create self-determination by building whānau capability. Building capability is an important addition to the current body of work on Indigenous people’s self-determination because it bridges the two strategies of Indigenous peoples’ self-determining governance institutions that embody cultural values and practices of everyday resurgence. In creating that bridge, Whānau Ora demonstrates the importance of capability development at all levels: macro, meso, and micro. At the macro level, space must be carved out for meso- and micro-level autonomy over development aspirations, supported by meso-level decision-making autonomy that is aligned to micro- level aspirations and innovation to enact the priorities of the community in tangible initiatives. is vertical integration, or stacking, of the mechanisms of self-determination is perhaps the most transportable insight from Whānau Ora that may be of relevance to tribal/nation development pathways. In Aotearoa / New Zealand, tribal/nation development is largely driven by the Treaty Settlement process which transfers signiªcant assets to tribes, catalyzing the strengthening of tribal governance institutions and enabling tribes to self-direct how their commercial return will support tribal futures-making. Many signiªcant achievements have come from contemporary tribal governance, including pioneering language, cultural, educational, and environmental initiatives, among others. What tribal-led self-determination seems to lack, however, in New Zealand is coherency in two spheres: () how tribes will progressively gain decision-making autonomy over matters of relevance to the tribe and () how tribal-level development contributes to strengthening whānau and community self-determining ability in real and aspirational terms. In Aotearoa / New Zealand, tribes do not have a comparable political autonomy as seen in the legislative and judicial powers in Indigenous territories in North Amer- ica. Whānau Ora encourages tribes without or with limited political autonomy to actively in¢uence national-level policy to gain greater decision-making W HĀNAU ORA Â¾Á autonomy similar to, and greater than, the autonomy granted to commissioning agencies. Equally, Whānau Ora should provide impetus for tribes to consider the relationship between meso-level tribal governance and collective capability to be self-determining at individual, whānau, and community levels. Most importantly, Whānau Ora demonstrates the relevance of coordinated multilevel self-determination. Whānau Ora, like any initiative, is imperfect. Despite the institutional infrastructure, Whānau Ora is still a government policy that is subject to political vagaries, making it vulnerable to erosion or removal as the political currents of the day dictate. e quantum of funds under the commissioning agencies is a fraction of the whole of government expenditures proportionate to the Māori population, and the authority of the commissioning agencies is conªned to funds under their management, leaving wider government health and social services policy and investment under the troublesome status quo. e macro-level architecture remains, therefore, a work in progress that is inevitably tethered to the political appetite for creating more fulsome and visible space for Māori self-determination. e future of Whānau Ora is likely to depend on the impact generated by the commissioning agencies: the greater the positive transformation achieved, the more likely it is that the sphere of autonomy and funds under management will grow, and the reverse, should that transpire. In this sense, Whānau Ora re¢ects the realities of being self-determining: we become responsible for our own decisions and their consequences, and when we do it well, more self-determination begets more self-determination.

REFERENCES

Alfred, T., and J. Corntassel. . “Being Indigenous: Resurgences Against Contempo- rary Colonialism.” Government and Opposition (): – . Anaya, J. . “Report of the Special Rapporteur on the Rights of Indigenous Peoples: e Situation of Māori People in New Zealand.” UN Human Rights Council, New Zealand. Anaya, S. J. a. Indigenous Peoples in International Law. New York: Oxford University Press. Anaya, S. J. b. “International Human Rights and Indigenous Peoples: e Move Toward the Multicultural State.” Arizona Journal of International and Comparative Law (): – . Â¿Ã S ACHA M CM EEKING

Batiwala, S. . Changing eir World: Concepts and Practices of Women’s Movements. Toronto: Association for Women’s Rights in Development. Cornell, S., and J. P. Kalt. . “Where’s the Glue? Institutional and Cultural Foun- dations of American Indian Economic Development.” Journal of Socio- Economics (): – . Corntassel, J. . “Re- envisioning Resurgence: Indigenous Pathways to Decoloniza- tion and Sustainable Self- Determination.” Decolonization: Indigeniety, Education and Society (): – . Dormer, R. . “Whānau Ora and the Collaborative Turn.” International Journal of Public Administration (): – . Durie, M. . Ngā Kāhui Pou: Launching Māori Futures. Wellington: Huia. Durie, M. . Ngā Tini Whetū: Navigating Māori Futures. Wellington: Huia. Durie, M., et al. . Whānau Ora: Report of the Taskforce on Whānau-Centred Initiatives. Wellington: Minstry of Health. Ferrell, S. J. . “ e Concepts of Self-Determination and Autonomy of Indigenous Peoples in the Draft United Declaration on the Rights of Indigenous Peoples.” St. omas Law Review (): – . Grimm, R., et al. . “Social Innovation, an Answer to Contemporary Societal Chal- lenges? Locating the Concept in eory and Practice.” Innovation: e European Journal of Social Science Research (): – . Lawson- TeAho, K. . De£nitions of Whānau: A Review of Selected Literature. Welling- ton: Families Commission. Murphy, M. a. “Self-Determination and Indigenous Health: Is ere a Connection?” In Restoring Indigenous Self-Determination: eoretical and Practical Approaches, edited by M. Woods, – . Leuven, Belgium: Ku Leven. Murphy, M. b. “Self- Determination as a Collective Capability: e Case of Indige- nous Peoples.” Journal of Human Development and Capabilities (): – . O©ce of the Auditor General (OAG). . “Whānau Ora: e First Four Years.” Pre- sented to the House of Representatives under section of the Public Audit Act , May. https:// www .oag .govt .nz/ / whanau -ora/ docs/ whanau -ora .pdf. Savage, C., et al. . e Evaluation of Wave One Initiatives: Te Pūtahitanga o Te Waipounamu. Wellington: Government of New Zealand. Sen, A. . Commodities and Capabilities. Amsterdam: Elsevier. Sen, A. . “Capability and Well-Being.” In e Quality of Life, edited by M. Nussbaum and A. Sen, – . New York: Oxford University Press. Sen, A. . “Development as Capability Expansion.” In Readings in Human Devel- opment: Concepts, Measures, and Policies for a Development Paradigm, edited by S. Fukuda- Parr and A. K. S. Kumar, – . New York: Oxford University Press. Sen, A. . “Capabilities, Lists, and Public Reason: Continuing the Conversation.” Feminist Economics ( ): – . TPK (Te Puni Kōkiri). . WIIE Fund Media Report and Queries About Whōnau Ora Performance Reporting. Wellington: Te Puni Kōkiri. W HĀNAU ORA Â¿Â

TPK (Te Puni Kōkiri). . Formative Evaluation of the Whānau Ora Commissioning Agency Model. Wellington: Te Puni Kokiri. TPK (Te Puni Kōkiri). a. More Eective Social Services. Wellington: New Zealand Productivity Commission. TPK (Te Puni Kōkiri). b. Understanding Whānau Centred Approaches. Wellington: Te Puni Kōkiri. TPK (Te Puni Kōkiri). c. Whānau Ora Annual Summary Report July — June . Wellington: Te Puni Kokiri. TPK (Te Puni Kōkiri). . e Whānau Ora Outcomes Framework. Wellington: Te Puni Kōkiri. §

INDIGENOUS COMMERCIAL CODES

Sovereignty and International Trade Agreements

º²ËÇ¬®³ ³®°ºµ¹³²° ®° º Ì¹®º²° ª«¬¬¯³

ESEARCH SHOWS that an important pillar of good Indigenous governance is self-rule, or sovereignty (Cornell and Kalt ). However, for Rthose Indigenous peoples in settler states, their ability to act as sovereigns without the interference of the state is highly constrained. is chapter proposes that commercial law holds an implicit promise of more sovereignty for Indigenous peoples and can give e¤ect to their customary laws and values. Commercial codes created by Indigenous groups can set the ground rules for contractual relations in Indigenous communities and set the parameters for development in their territories. Where Indigenous jurisdiction over commercial law is already recognized, such as in U.S. tribal nations, commercial codes bind economic actors within the legal framework of tribal codes. In countries such as Canada, where there is currently no recognized Indigenous jurisdiction over commercial law, arbitration legislation permits entities to enter into commercial agreements that specify a particular set of rules under which contracts will be executed, and these rules may have the formality of an Indigenous commercial code. us, whether via inherent jurisdiction or through explicit agreement, Canada’s Indig- enous nations can exercise a form of sovereignty over commercial relations in their communities through the form of commercial codes, and reliance on such codes may provide better protection of Indigenous interests than would exercise I NDIGENOUS C OMMERCIAL CODES Â¿Å of the Crown’s duty to consult and accommodate. While commercial codes o¤er promise for reasserting an Indigenous ethic for commercial activity in Indigenous territories, nation-states are increasingly bounded by free trade and investor protection agreement, and these international agreements restrict the ways in which Indigenous communities can exercise their sovereignty through commercial law. In this chapter, we consider the ways in which international investment agreements intersect with the lawmaking power of Indigenous nations in Can- ada and the United States, and the ways in which they have attempted to utilize existing investment agreements to protect their economic and cultural interests. We conclude with an examination of the modern treaty-making regime and the ways in which state actors have sought to limit the exercise of Indig- enous sovereignty by requiring treaty signatories to exercise their authority in a manner consistent with the states’ international agreements. ese insights o¤er useful lessons for Indigenous peoples across the globe, who are seeking to reassert sovereignty and self-governance over their territories.

COMMERCIAL LAW AND SOVEREIGNTY

Commercial law governs contractual relations, and the regulation of commercial actors is the exercise of a form of sovereignty. Commercial relations are valid only so far as they occur within the ambit of commercial law. In other words, the state will only act to enforce contractual agreements if those agreements are legal. e role of the state in regulating commercial relations is one aspect of state sovereignty. But the common law world has long provided commercial actors considerable latitude to agree between themselves what set of laws will apply to a given contract, and in what forum disputes, should they arise, be heard. e choice of law or forum provisions are provided for in Canada via the various provincial Arbitration Acts.· Since commercial law is the backbone of economic development and impacts social and ecological systems, it is surprising how little attention has been paid by First Nations in Canada to the possibility of regulating economic activity through commercial codes. In the United States, tribal nations are assigned the status of “domestic dependent nations”: semisovereign entities existing within the geographic space of the United States. As such, state law does not reach into the boundaries of tribal communities, and this lacuna must be ªlled, and has been ªlled, by Â¿¼ D OUGLAS SANDERSON AND BRADON W ILLMS tribal commercial codes.¸ For the most part, these codes echo the Uniform Commercial Code (UCC)—a comprehensive set of laws governing commercial transactions, including the borrowing of money, leases, contracts, and the sale of goods.º It is worth noting that the UCC is not itself law but rather a template set of laws for governing commercial transactions that each jurisdiction adopts independently and, by doing so, creates a uniform set of commercial law in and between U.S. states, territories, and tribal entities. U.S. tribal entities enact tribal commercial codes that comply with the UCC because doing so provides contractual uniformity. Nothing is expected of commercial actors in tribal communities that is not expected when doing business in nontribal communities: the tribal commercial codes do not just level the playing ªeld; they ensure that the playing ªeld is uniform and seamless for commercial actors. By creating commercial environments that mimic those of o¤-reservation transactions, tribal communities can, via tribal commercial codes, limit economic leakage to o¤-reservation communities and transactions. Commercial disputes arising on U.S. tribal lands governed by a tribal commercial code are heard by local tribal courts, and so the regulation of commercial law and the resolution of commercial disputes are just part of the normal day-to-day exercise of U.S. tribal sovereignty.» is is not the case in Canada. e governmental powers provided to First Nation communities in Canada are delegated to those communities via the Indian Act (), and the powers (such as they are) do not extend to the regulation of commercial activities beyond the licensing of local vendors.¼ Instead, provincial powers of “general application” are, by operation of section of the Indian Act, extended to and throughout Indian country. e commercial law that regulates transactions on an Indian reserve are the provincial laws that regulate transactions in that jurisdiction. e fact that provincial statutes of general application apply on Canadian Indian Reserves opens the door to the creative use of Arbitration Acts to develop uniquely First Nation (or, as we term them, Indigenous) commercial codes. Elsewhere, we have argued that the development and implementation of Indigenous commercial codes can represent the exercise of Indigenous sovereignty (Sanderson ). Communities that develop such codes could require all commercial contracts entered into by the community (and in respect of intra- and intermember contracts) to include a choice of laws provision that utilizes the local commercial code, and indeed could choose a locally comprised form of arbitration that included local Indigenous customary law. In this way, Cana- dian First Nations could exercise a form of sovereignty over local commercial I NDIGENOUS C OMMERCIAL CODES Â¿½ transactions. is approach should be considered by Indigenous groups across the globe to exercise greater sovereignty in their territories. In the remainder of this chapter, we turn to consider tribal and Indige- nous communities in the broader context in which commercial law increasingly operates: the global and international landscape of investment treaties. After examining the purpose, general operation, and e¤ect of international investment treaties, we consider the e¤ect of international law on Indigenous commercial codes. As will be seen, international investment agreements can have the e¤ect of excluding or limiting the ability of Indigenous groups to exercise sovereignty over commercial activity in their territories. We then examine a few of the ways that tribal and Indigenous communities have sought to utilize international investment instruments and fora to advance their own economic and cultural interests. We then consider the ways in which Aboriginal and treaty rights may come to interact with state actors and international investments and expectations.

INTERNATIONAL TRADE AND INVESTMENT AGREEMENTS

e regulation of international trade, or the ¢ow of capital, goods, and services across borders, often takes the form of multilateral, plurilateral, and bilateral agreements between nations. e primary purpose of these agreements is to liberalize international trade and investment by removing regulatory and competitive barriers to the ¢ow of goods, services, and capital in order to facilitate a well-ordered international marketplace (Trebilcock and Howse ). Fur- ther, investment agreements create a framework for formal and binding dispute settlement mechanisms. Perhaps the most eponymous of these instruments is the World Trade Organization (WTO) Agreement, to which nations are party.½ is multilateral agreement now includes instruments that regulate trade in goods, services, and intellectual property, and addresses a wide range of trade restrictions and distortions such as tari¤s, subsidies, investment measures, taxes, regulatory schemes, and price dumping. Con¢icting goals among developed and developing countries have led to a recent stalemate in WTO negotiations, and so the last decade has seen a proliferation of alternative plurilateral and bilateral agreements between nations ( Johnston and Trebilcock ). ese agreements have the advantage of being Â¿¾ D OUGLAS SANDERSON AND BRADON W ILLMS more directly tailored to the needs and goals of each party and are more easily negotiated than a multilateral agreement that binds di¤erent states. e WTO Agreement is limited to the regulation of trade. It addresses international investment only insofar as investment measures may pose a barrier to the trade market.¾ As a result, international investment is regulated almost exclusively through bilateral and plurilateral investment agreements between groups or pairs of states. While many agreements relate solely to investment, states have the freedom to negotiate comprehensive terms that regulate both trade and investment within the same agreement. e North American Free Trade Agreement (NAFTA) between Canada, the United States, and Mexico is a benchmark example of this strategy.¿ e fundamental principle of all international trade and investment agreements is nondiscrimination. is principle is realized in two ways. First, according to the national treatment (NT) principle, no party may treat foreign products or capital less favorably than similar domestic products or capital. is prohibits states from acting to confer a competitive market advantage on domestic producers or investors relative to foreign producers or investors. Second, according to the most-favored nation (MFN) principle, each party may not treat products or capital from agreeing parties less favorably than products or capital from other nations. is prohibits states from “playing favorites” with its trade or investment partners and restricting one’s market access more than another. e NT and MFN principles have important implications for the protection of foreign investors from state expropriation, which is perhaps the clearest point of intersection between international investment agreements and Indigenous peoples rights. Broadly, expropriation is the taking of economic rights by a state for the value of those rights.Â Investment agreements clearly protect investors from direct expropriation, that is, direct seizure or transfer of title from the investor to the state without compensation.·Ã However, the more contentious cases are those of alleged indirect expropriation—indirectly limiting the economic rights of an investor through state regulation. In order to preserve parties’ legislative sovereignty, most investment agreements allow the state to regulate in the public interest without compensating a¤ected investors, provided the regulation pursues a valid public purpose, is nondiscriminatory (according to NT and MFN), and occurs by due process of law. Investors frequently attack each of those requirements in claims for compensation. Indigenous land claims, and state regulations that limit the available uses of land because of Indigenous rights and interests, expose the state to claims for compensation by a¤ected I NDIGENOUS C OMMERCIAL CODES Â¿¿ investors for the diminished value of their rights or assets. For example, declar- ing certain lands to be an archaeological site and restricting surface disturbances may trigger litigation if the regulation prohibits a foreign investor from extract- ing subsurface resources. To avoid paying compensation, the state must show that the rights-limiting regulations pursue a valid public purpose and are not a disguised restriction on investment, that they do not discriminate between investors, and that they were implemented through due administrative process. Importantly, the parties to investment agreements are national governments. e consequence is that national governments are liable for all the actions of their constituent subnational government entities. Investment agreements will often explicitly require parties to take “necessary measures” to ensure compliance by subnational governments.·· While this problem is particularly acute for federally structured nations such as the United States and Canada, it also imposes responsibility on national governments for regulations implemented by municipal, local, and Indigenous governments.·¸ If a subnational government breaches the nation’s treaty obligations, and the national government is found liable, any monetary responsibility of the subnational government is a matter to be determined domestically. is has important implications for the sovereignty of each government: the national government must take care to ensure that agreements can be complied with by subnational government actors, while these same subnational governments are politically bound by national negotiations in which they did not participate.

INTERSECTION BETWEEN INTERNATIONAL AGREEMENTS AND INDIGENOUS SOVEREIGNTY

e sovereignty implications of international investment agreements for Can- ada’s First Nations were recently explored by the Federal Court of Appeal in Canada. After nearly two decades of negotiations between Canada and China, the two countries signed a Foreign Investment Promotion and Protection Agreement (FIPA) in . is agreement provides very similar investor protection as NAFTA, includes the NT and MFN principles, imposes a minimum standard of investor treatment, prohibits expropriation except for a public purpose, and contains certain economic and regulatory transparency provisions.·º Canada’s public consultations prior to ratiªcation of FIPA did not include First Nations. As a result, the Hupacasath First Nation (HFN) in British Â¿À D OUGLAS SANDERSON AND BRADON W ILLMS

Columbia brought judicial proceedings claiming that the federal government had a duty to consult with its community because of the potential adverse impact of the FIPA on unresolved Indigenous land claims. In Hupacasath First Nation v. Canada (Attorney General),·» the HFN asserted land rights to about , hectares of land that contain exploitable natural resources such as forests, ªsheries, and subsurface resources. is claim remains unresolved.·¼ e HFN argued that they have a constitutional right to be consulted even without a proven claim of Aboriginal title to their lands. Under prior Canadian case law, the Crown has a constitutional duty to consult with a¤ected Aboriginal collectives when contemplated Crown conduct may adversely a¤ect their proven or potential Aboriginal rights.·½ e required scope of consultation depends on the strength of the Indigenous claim and the potential severity of the impact of the Crown conduct.·¾ At a minimum, consultation requires that the Crown make a good faith e¤ort to address the concerns of the a¤ected Indigenous community.·¿ us, the HFN asserted that their title claim is su©cient to trigger the duty to consult because the FIPA provided protection of Chinese investors seeking to exploit or develop parts of the HFN’s disputed territory. Because the HFN had not yet reached an agreement with Canada with respect to the HFN land claim, the HFN argued that their ability to protect their lands and resources from investor capitalization would be hindered by Canada’s con¢icting FIPA obligations. Canada’s commitments under FIPA, it was argued by HFN, would have a chilling e¤ect on their rights and title. At trial, the Federal Court of Canada held that Canada did not have a duty to consult because the alleged impact on Aboriginal rights from the FIPA was nonappreciable and too speculative to trigger the duty to consult.·Â According to the court, any appreciable and nonspeculative impact was only adverse to HFN’s future negotiating position with respect to Canada and not to its asserted land rights. e Federal Court of Appeal upheld the original decision of the Federal Court and HFN’s claim was dismissed. Several Canadian First Nations had anticipated the concerns faced by HFN when they negotiated and ratiªed modern treaty agreements with the Crown. A number of modern treaties between Canada and First Nations in British Columbia include speciªc provisions imposing a duty for Canada to consult when any new “international legal obligation” is contemplated by Canada that may a¤ect the First Nation’s interests.¸Ã If the First Nation asserts rights that may impede Canada from performing its international obligations, another provision in these modern treaties requires negotiation between the Crown I NDIGENOUS C OMMERCIAL CODES Â¿Á and First Nations to identify possible remedial measures that would enable Canada to perform its obligations. If no agreement can be reached, then the con¢ict is subjected to formal arbitration. To date, there are no instances of a First Nation relying on these treaty provisions, so it is unclear how successful they will be at preserving Indigenous interests in the face of competing international obligations. Canada also appears to have anticipated the possibility of First Nations enacting laws or regulations on their territories that are at odds with Canada’s international investment treaty obligations. A number of recent treaties concluded with First Nations included provisions requiring that the First Nations’ exercise of law making authority be consistent with Canada’s international law obligations, and where a con¢ict is found, requires the First Nation to remedy the law to the extent of the con¢ict.¸· Indigenous commercial codes may o¤er a more positive alternative for protecting Indigenous interests than relying on the Crown’s duty to consult in the face of Canada’s international agreements. On the other hand, the capacity of First Nations to assert sovereignty over unproven rights through commercial codes may be limited by Canada’s obligations in international investment and trade. e following section explores the potential interaction between international investment and trade agreements and future Indigenous commercial codes, highlighting how commercial codes may help facilitate Indigenous economic development in the global marketplace and how the implementation of commercial codes may be constrained by international agreements.

ADVANTAGES OF INDIGENOUS COMMERCIAL CODES IN INTERNATIONAL MARKETS

e possible beneªts of commercial codes for First Nations engaging with international businesses are much the same as with domestic businesses. In the Hupacasath case, and in all claims regarding the Crown’s failure to consult, the fundamental loss su¤ered by the First Nation is the inability to e¤ectively participate in governmental decision-making that a¤ects its interests and to have those interests accommodated. Rather than framing Indigenous participation as a struggle between the community and the Crown about the quality and quantity of participatory rights, Indigenous commercial codes may provide a more positive forum for participation. ÂÀÃ D OUGLAS SANDERSON AND BRADON W ILLMS

Instead of ªghting against the Crown’s terms of investment and business, commercial codes would facilitate and promote international investment and business done on Indigenous terms. Because the duty to consult only applies to the Crown and not to private businesses, commercial codes can augment consultation by increasing direct Indigenous participation with investors. Rather than being an obstacle for international investors to overcome, First Nations would become vital business partners. In this way, First Nations can exercise a right to governance and take a more active approach in how business is conducted in their territories. When a First Nation engages an international investor to do business with proven Indigenous rights and assets, commercial codes may provide an opportunity for First Nations to regulate investor conduct in ways that the Crown is unwilling. A possible implication of international investment agreements is that they may cause a regulatory “chilling e¤ect” on governments, who may become afraid of regulating in the public interest because of exposure to expropriation claims (Vadi ). In the Hupacasath case, it was argued by the HFN that this chilling e¤ect may inhibit regulatory protection of Indigenous cultural interests. Because commercial codes would be consented to through private contract rather than imposed by state regulations, First Nations may be able to overcome some of the inhibitions faced by the Crown. Commercial codes may include cultural or environmental protections and provide for novel remedies that may otherwise expose a regulator to claims of indirect expropriation. For example, commercial codes may expressly provide for the protection of Indigenous traditional knowledge and traditional cultural expressions or environmental standards that exceed those of provincial or federal regulation.¸¸ In this manner, Indigenous communities may be able to exert increased sovereignty over business dealings with their own resources instead of relying on governmental regulators. e inherent limit of commercial codes is that they may only apply to proven Indigenous rights and assets. Like in the Hupacasath case, unproven claims remain susceptible to exploitation by international businesses that gain access and protection through international agreements. If a First Nation does not have proven rights to the resources at issue, then its participation in the consultation process may be at the lower end of the consultation spectrum, and the accommodations o¤ered may be minimal. Given this low threshold of consultation and accommodation required of the Crown, international investors may rely on expropriation protections in order to protect the value of their I NDIGENOUS C OMMERCIAL CODES ÂÀÂ investments against asserted but unproven Indigenous claims. ere is some economic incentive for international businesses to respect unproven claims by First Nations and to negotiate resource extraction on contentious lands in order to avoid future litigation. However, absent regulatory limits imposed by the state (which may be inhibited by the regulatory chilling e¤ect), unproven Indigenous rights remain largely unprotected.

HOW INDIGENOUS GROUPS ARE UTILIZING INVESTMENT AGREEMENTS TO PROTECT THEIR ECONOMIC AND CULTURAL INTERESTS

EFFORTS TO USE THE WTO AND NAFTA

ere are a limited number of cases in which Indigenous groups have sought to protect their cultural and economic interests within the WTO and NAFTA frameworks. While these cases demonstrate only a marginal role for Indige- nous interests at the WTO, NAFTA dispute arbitrators have upheld Indige- nous interest regulations as a valid public purpose that does not o¤end investor expropriation protections. Indigenous groups participated in WTO litigation for the ªrst time in the US—Softwood Lumber IV dispute between Canada and the United States.¸º In this dispute, the United States alleged that Canada was granting subsidies to its domestic lumber producers, which distorted international trade. e Inte- rior Alliance of British Columbia, which represented several First Nations in British Columbia, ªled an amicus curiae brief with the WTO Appellate Body. e brief argued that the Canadian government had circumvented its duty to consult with several First Nations about lumber harvesting that a¤ected their land interests. According to the brief, avoiding the costs associated with consultation constituted an actionable subsidy given by the Crown to Canadian lumber producers. e Appellate Body did not comment on this submission in its decision, and despite initial optimism that the amicus curiae strategy could open a new forum for Indigenous advocacy, no similar argument has since come before the WTO. In the recent EC—Seal Products case,¸» Canada and Norway challenged the European Communities’ (EC) ban on the importation of seal products. Speciª- cally, Canada and Norway alleged that an exception allowing Inuit seal products ÂÀÄ D OUGLAS SANDERSON AND BRADON W ILLMS from Greenland was de facto discrimination against Canada and Norway. Because the majority of seal products in Canada and Norway are made by non-Indigenous commercial enterprises, while the majority of seal products from Greenland are made by Indigenous groups, Canada and Norway contended that Greenland’s seal industry beneªted from privileged market access due to the exception under the regime. e WTO Appellate Body held that discriminating between Inuit seal products from di¤erent countries was impermissible, and that Canadian Inuit should be granted the same privileged market access as Greenland Inuit. is case is important for trade regulation because it demonstrates that the principle of nondiscrimination can allow international Indigenous communities to beneªt by “piggybacking” on trade and investment initiatives that promote the cultural and economic interests of similarly situated communities. In Glamis Gold Ltd v. United States of America,¸¼ a dispute under the NAFTA Chapter investment measures, Glamis (a Canadian mining company) alleged that its investment in mineral resources on federal lands in California had been indirectly expropriated through regulation. Because of the proximity of the project to sacred Quechan tribal lands, California enacted regulations that required Glamis to backªll all its open-pit mines to restore the land. Glamis argued that this deprived the project of its economic value and constituted expropriation that entailed compensation. e arbitral tribunal agreed with the United States that mining is a heavily regulated industry, and businesses reasonably expect those regulations to be extended from time to time. Further, the new regulations were rationally connected to the valid public purpose of preserving sacred Indig- enous and archaeological lands. Finally, given Glamis’ reasonable expectations, the tribunal held that the regulations did not have a severe enough economic impact on Glamis to deny it the beneªt of its investment. Because natural resources and mineral rights are international investors’ primary interest in Indigenous lands, and because those industries are all highly regulated, Glamis Gold sets an important benchmark for public regulators. Resource businesses reasonably ought to expect to be subject to regulatory extensions when they invest abroad. Further, the protection of Indigenous cultural heritage is a valid regulatory objective under the NAFTA expropriation measures. However, NAFTA Chapter arbitral decisions are not subject to stare decisis. erefore, while persuasive, the Glamis Gold decision does not bind future arbiters that may deal with similar disputes. Indigenous groups have also acted as complainants under NAFTA Chapter . In Grand River Enterprises Six Nations, Ltd v. United States,¸½ a Canadian I NDIGENOUS C OMMERCIAL CODES ÂÀÅ

Indigenous tobacco producer alleged that U.S. health regulations, which required tobacco companies to contribute funds toward health-care expenses, constituted an indirect expropriation. Again, because tobacco companies ought to expect to be subject to extensive state regulation, the tribunal rejected this claim. Further, there were no assurances or representations that Indigenous companies could expect di¤erent regulatory measures than non-Indigenous companies. e arbitrator found that Grand River remained proªtable and was not denied the substantial beneªt of its investment. Grand River was unsuccessful in arguing that the regulations infringed a historical cultural activity protected by international minimum standards of Indigenous law. e tribunal did note that international Indigenous customary law could in theory ground a defense of di¤erential treatment. However, the claimant in Grand River failed to lead appropriate evidence to substantiate their claim that Mohawk traditional laws required consultation with the claimant personally. e claimant failed to prove his contention that, contrary to instruments and jurisprudence establishing that Indigenous title and treaty rights are held collectively, Mohawk sovereignty resided in the individual rather than the tribe or band.¸¾ One implication of the Grand River decision is that Canadian Indigenous corporations that invest abroad are not o¤ered any competitive advantages under NAFTA in virtue of their identity, even if the business constitutes a cultural practice that may be privileged under instruments such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Interest- ingly, Canada negotiated reservations for di¤erential treatment of Indigenous investors under NAFTA. Neither the United States nor Mexico negotiated similar reservations. In Canada’s NAFTA Annex II schedule of reservations, “Canada reserves the right to adopt or maintain any measure denying investors of another Party and their investments, or service providers of another Party, any rights or preferences provided to aboriginal peoples.” is reservation also speciªcally provides that it applies to “national treatment” and “most-favored- nation treatment” commitments. erefore, Canada may provide preferential investment treatment to its own or foreign Aboriginal groups without extending the same preferences to other groups.¸¿ To date, this reservation remains unexplored and has not resulted in any litigation. As described by Ken Coates and Carin Holroyd, in their chapter in this volume, the primary intersection of international corporations and Canadian First Nations occurs through contracts known as impact beneªt agreements (IBAs). IBAs are agreements between corporations (domestic or international) ÂÀ¼ D OUGLAS SANDERSON AND BRADON W ILLMS who win the support (or at least acquiescence) of the First Nations on whose territory the corporations wish to work. Resource extraction companies are the most common types of corporations signing IBAs with First Nations. e agreements may set out conditions such as annual, monthly, or onetime transfers of cash from the resource company to the First Nation, provisions for the preferential hiring of Aboriginal suppliers, and training or employment guarantees. A First Nation entering into an IBA can, as a matter of domestic law under the Arbitration Act, have the IBA specify that the First Nations’ own commercial code and system of arbitration will be used as a dispute resolution mechanism should a legal issue arise with respect to the contract (or IBA).¸Â In this way, First Nations can even bind international resource companies to environmental standards that meet or exceed federal and provincial law, provided that those standards are set out in the IBA itself. Performance of the contract according to its terms thus becomes a matter of Indigenous law as set out in the relevant commercial code and IBA, and as a matter of Canadian federal and provincial law under the enforcement mechanism of the various Arbitration Acts.

A THUMB ON THE SCALE°CANADIAN FIRST NATIONS ABORIGINAL/TREATY RIGHTS VERSUS INVESTOR EXPECTATIONS

e federal and provincial Crowns in Canada ªnd themselves in a di©cult position when it comes to balancing the constitutionally protected rights of Aboriginal peoples of Canada and the Canadian state’s commitments under international investment agreements. Aboriginal rights form a spectrum in Canada. On one end of the spectrum are the asserted and proven Aboriginal title rights: rights to the ownership of land similar to fee simple, and necessarily the legal jurisdiction to determine land use over title lands. Crown action on these lands is greatly constrained to the point of requiring Aboriginal consent, unless the Crown action is able to pass a justiªcatory test for the trenching of Aboriginal title rights. Where the Crown meets the justifactory test, then its use of Aboriginal title lands is legal expropriation, and compensation must be paid. Even where Aboriginal title has not been proven, Canadian law requires that Aboriginal people be consulted and accommodated where their I NDIGENOUS C OMMERCIAL CODES ÂÀ½ constitutional rights may be a¤ected.ºÃ is duty applies even where Aborigi- nal title is merely asserted and neither negotiated nor proven in court.º· Where a right for Aboriginal title is unproven, consultation and accommodation is not coextensive with consent; a¤ected First Nations have a say in the decision, not a veto.º¸ e question of how much consultation is enough to pass constitutional muster is left to the Crown to answer for itself. Charged with the constitutional duty to consult and accommodate, it is the Crown who must determine if the consultation and accommodation process was adequate to the circumstances of the governmental decision and the a¤ected First Nations. ºº Where an IBA is successfully negotiated between a corporate proponent and the First Nation on whose land the proponent will operate, the Crown can be reasonably assured that the duty to consult and accommodate has been adequately discharged. But what of decisions on First Nations’ traditional territory where there is no proven title right, no IBA, and no consent from a First Nation to the proposed development or resource extraction? In these circumstances, it is the Crown that determines whether or not su©cient consultation has occurred such that the constitutional duty has been discharged. It is at this stage of the consultation process that litigation is likely to occur, with First Nations arguing that the consultation process was insu©cient, and the court deciding if this is so. e Crown’s position with respect to consultation and accommodation of constitutional Aboriginal and treaty rights is thus inherently con¢ictual. On the one hand, the Crown must determine how much consultation is required, how that consultation should be conducted, and whether the duty to consult has been accommodated. On the other hand, the Crown stands to beneªt ªnancially and politically from permit approval of resource extraction on lands where there is an asserted, but unproven, Aboriginal title claim. e Crown’s desire to promote economic development through resource extraction runs headlong into the Crown’s legal duty to adequately consult and accommodate First Nations about decisions that a¤ect Aboriginal communities, territories, and rights. Government policy promoting economic development and foreign investment in Canadian industries collides with the Crown’s ªduciary obligation to adequately consult and accommodate First Nations, and as conªrmed in Haida Nation, this duty is grounded in the honor of the Crown. e same Crown that issues licenses and collects royalties also determines if its own process of consultation and accommodation was su©ciently discharged. ÂÀ¾ D OUGLAS SANDERSON AND BRADON W ILLMS

e inherent con¢ict of interest in which the Crown ªnds itself is made still more dubious given the rights foreign investors may have in Canadian development projects. Where a resource company applies for, say, a renewal of timber license, the Crown must ªrst run through its process of consultation with Aboriginal peoples in the a¤ected area, and then potentially accommodate the Aboriginal rightsholders. If the proponent applicant is Canadian, and after a thorough consultation process with a¤ected First Nations the Crown decides not to reissue the timber license, then the Canadian proponent has little to no recourse in domestic law. However, if the proponent is a foreign investor, and protected by a foreign investment protection treaty, then the foreign investor may bring suit under the terms of the treaty, arguing that the company’s reasonable expectations of proªt have been undermined by Canada (Schneiderman , , ).º» So while the Crown ªnds itself in a con- ¢ict of interest under the regular rules of consultation and accommodation, the existence of FIPA provides an extra layer of property rights protection to foreign investors and puts the Crown’s thumb and ªngers on the decision- making scales knowing, as the Crown must, that failure to approve resource extraction licenses can result in litigation under international treaty, litigation that occurs behind closed doors and according to the rules of international arbitration, not Canadian domestic or constitutional law (Schneiderman , , ). What this means is that before an international arbitral panel, the Canadian constitutional context does not play a role in adjudication; valid governmental duties such as the honor of the Crown, and the duty to consult and accommodate, are irrelevant to the determination of whether a foreign investor’s expectations of return were breached, or whether the Canadian government’s attention to its constitutional duties constitute expropriation under international investment treaties. Should the Crown shirk its consultation and accommodation duties, it will be sued by the a¤ected First Nations, and if the First Nations win, damages will be owed, and injunctions issued to stop the project, at which point the federal government could be sued by the foreign investor under the investment agreement for a de facto expropriation. On the other hand, if the Crown upholds its constitutional duties and refuses to issue permits required by the proponents, then the federal government will be sued for de facto expropriation. In other words, the government’s commitment to foreign investment agreements, at least as these agreements are currently structured, binds the federal government in a no-win situation. I NDIGENOUS C OMMERCIAL CODES ÂÀ¿

One way out of this bind is for future investment protection agreements to explicitly provide a carve-out for governmental actions that are required in order to uphold the honor of the Crown in respect to Aboriginal rights and title. A narrow form of this carve-out was included in NAFTA, and provides that Canadian governments can express a preference for Aboriginal suppliers in procurements without o¤ending the investment treaty.º¼ A similar carve- out could be made in the future, though changes will be di©cult in existing investment protection agreements—it is impossible to imagine what foreign investors would demand in return for this concession. Requiring a carve-out to protect Aboriginal rights and title should not be an anathema to future trade agreements because what Canada would be asking for is nothing more than compliance with existing international norms regarding Indigenous peoples, such as the UNDRIP.

CONCLUSION

Indigenous peoples in Canada, and to greater or lesser degrees in Australia, New Zealand, and the United States, exist in worlds of extremely constrained sovereignty. While their lawmaking powers may be very limited, commercial codes o¤er the promise of Indigenous sovereignty over commercial law in their communities, even where political sovereignty is otherwise extremely limited. As globalization increases, Indigenous peoples have already begun to assert their authority against not only domestic but international investors as well. Con- stitutionally protected domestic interests in lands and rights related to those lands are beginning to interact with international trade and investment treaties, and Indigenous peoples are increasingly in the driver’s seat, exercising an e¤ective veto over international development—a veto that, if ignored, provides a cause of action against domestic governments, and the very real possibility of development projects being shut down by court order if Indigenous interests are ignored. In some ways, this is just a return to the early and middle contact period, when First Nations negotiated their way through international agreements (treaties) with actors such as the French, English, Dutch, and Spanish, all of whom were in competition for Indigenous lands, resources, and alliances. e current landscape of international investment in Indigenous territories is, thus, nothing more than a return to the past—and to a time when Indigenous nations understood their prominent role in the events of the day. ÂÀÀ D OUGLAS SANDERSON AND BRADON W ILLMS

NOTES

See, for example, Arbitration Act, , S.O. , c. . For examples of U.S. tribal codes, see Blackfeet Commercial Code, Ordinance no. , http:// www .narf .org/ nill/ codes/ blackfeetcode/. See also Navajo Uniform Com- mercial Code, Title a, http:// www .navajonationcouncil .org/ Navajo èNation èCodes/ V .pdf. e Uniform Commercial Code is a product of negotiation and deliberation between the National Conference of Commissioners on Uniform State Laws and the American Law Institute. For example, portions of the Uniform Commercial Code have been adopted by the Cherokee Nation, the Crow Tribe of Montana, and the Navajo, Sac, and Fox Nations, to name just a few tribal communities who have adopted portions of the UCC to align their commercial laws with those of the states. See Indian Act, R.S.C., , c. I- , s. , “Trading with Indians.” Marrakesh Agreement Establishing the World Trade Organization, April , , UNTS (entered into force January , ). Agreement on Trade- Related Investment Measures, April , , UNTS (entered into force January , ). North American Free Trade Agreement Between the Government of Canada, the Government of Mexico, and the Government of the United States, December , , Can TS no. (entered into Force January , ) [NAFTA]. Expropriation by the state is a very ancient state power and is regarded as an ancillary function of the state required to e¤ect public policy. To be legal, expropriation must be accompanied by fair compensation; otherwise the result is theft. In the United States, and increasingly via investment protection treaties, the test for expropriation is increasingly entrenched. e U.S. courts view almost any denial of right as expropriation requiring compensation, whereas the Canadian view is that the state’s ability to regulate activities is vast, and therefore property owners must expect considerable regulation that falls short of compensation. See, for example, NAFTA, art. . See, for example, NAFTA, art. . Indigenous governments in North America, to the extent they exercise sovereign powers, now do so as subnational actors. We therefore center our discussion on the current state of international a¤airs, while recognizing that in decades past, and up to the present day, many Indigenous nations have pressed their claims for recognition as nation-states, but claims from Canada, Australia, New Zealand, and the United States have thus far failed to achieve the necessary recognition by the existing body of international state actors. Examples in Canada include the Nisga’a right to self-government, Haudenosaunee sovereignty, and Passamaquoddy’s ªght for First Nations status. Agreement Between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments, September , , Can TS no. (entered into force October , ). I NDIGENOUS C OMMERCIAL CODES ÂÀÁ

Hupacasath First Nation v. Canada (AG), FC , C.R.R. (d) . Hupacasath First Nation v. Canada (AG), FCA , D.L.R. (th) . Rio Tinto Alcan Inc v. Carrier Sekani Tribal Council, SCC at paras – , [] S.C.R. ; Haida Nation v. British Columbia (Minister of Forests), SCC at para. , [] S.C.R. . Tsilhqot’in Nation v. British Columbia, SCC at paras. –, [] S.C.R. . Tsilhqot’in Nation, SCC , [] S.C.R. . Hupacasath First Nation, FC , C.R.R. (d) . See, e.g., Aboriginal A¤airs and Northern Development Canada, Maa- Nulth First Nations Final Agreement, sections ..– .. , https:// www .aadnc -aandc.gc .ca. Maa- Nulth First Nations Final Agreement, sections ..– ... For a comprehensive treatment of Indigenous intellectual property issues in the international market, see Graber, Kuprecht, and Lai . United States— Final Countervailing Duty Determination with respect to certain Softwood Lumber from Canada (Complaint by Canada) (), WTO Doc WT/DS/AB/R (Appellate Body Report) [US— Softwood Lumber IV], http:// docsonline .wto .org. European Communities—Measures Prohibiting the Importation and Marketing of Seal Products (Complaint by Norway) (), WTO Doc DS/AB/R (Appel- late Body Report) [EC— Seal Products], http:// docsonline .wto .org. See, e.g., Glamis Gold Ltd v. United States of America (), Award (NAFTA Arbitral Tribunal), https:// www .state .gov/ documents/ organization/ .pdf. Grand River Enterprises Six Nations, Ltd v. United States of America (), Award (NAFTA Arbitral Tribunal), https:// www .state .gov/ documents/ organization/ .pdf. See, for example, United Nations Declaration on the Rights of Indigenous Peoples, GA Res /, UNGAOR, st Session, Supp. no. , UN Doc A// (), art [UNDRIP], where the text uses the plural “consult . . . with . . . indigenous peoples” (emphasis added). See also Behn v. Moulton Contracting Ltd, SCC at para , [ ] S.C.R. . For additional discussion of Mohawk individual and collective sovereign rights, see Pertusati , – . See, for example, NAFTA, art. . e precise mechanics of the signing of the agreement are tricky. First Nations governments in Canada created by the Indian Act are not, strictly speaking, legal persons capable of entering into contracts. Many First Nations have created development corporations to imbue their political branch of government with legal personality for the purposes of contract law. is poses no particular di©culty for IBAs and commercial codes, because any two (or more) legal entities may enter into contract under the Arbitration Act, and it is no consequence that one actor is an international resource company and the other a First Nations development corporation. See also British Columbia Assembly of First Nations, “Governance Toolkit,” accessed March , , https:// bcafn .ca/ about/ governance -toolkit/. Section () of the Canadian Constitution of reads: “ e existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and a©rmed.” ÂÁÃ D OUGLAS SANDERSON AND BRADON W ILLMS

Haida Nation, SCC , [] S.C.R. . Haida Nation, and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), SCC , S.C.R. . See, for example, Tsilhqot’in Nation, SCC , [] S.C.R. . is occurs in part because Canadian domestic law of expropriation provides governments with considerable latitude to regulate virtually any and all activities and incidents of ownership, few of which rise to the level of expropriation. In contrast, investment treaties use the U.S. standard of expropriation, which considers almost any limitation on use of property to constitute a government “taking.” See, for example, NAFTA, art. .

REFERENCES

Cornell, S., and J. P. Kalt. . “Where’s the Glue? Institutional and Cultural Foun- dations of American Indian Economic Development.” Journal of Socio- Economics (): – . Graber, C., K. Kuprecht, and J. Lai. . International Trade in Indigenous Cultural Her- itage. Cheltenham: Elgar. Johnston, A. M., and M. J. Trebilcock. . “ e Proliferation of Preferential Trade Agreements: e Beginning of the End of the Multilateral Trading System?” In Preferential Trade and Investments, edited by S. Schill, –. Baden- Baden: Nomos. Pertusati, L. . In Defense of Mohawk Land: Ethnopolitical Con²ict in Native North America. Albany: State University of New York Press. Sanderson, D. . “Commercial Law and Indigenous Sovereignty: It’s a Nice Idea, but How Do You Build It in Canada.” Canadian Business Law Journal :– . Schneiderman, D. . “Exchanging Constitutions: Constitutional Bricolage in Can- ada.” Osgoode Hall Law Journal ( /): – . Schneiderman, D. . “Taking Investments Too Far: Expropriations in the Semi- periphery.” In Governing Under Stress: Middle Powers and the Challenge of Globaliza- tion, edited by M. G. Cohen and S. Clarkson, – . Toronto: Fernwood. Schneiderman, D. . “Property Rights and Regulatory Innovation: Comparing Con- stitutional Cultures.” International Journal of Constitutional Law (): –. Trebilcock, M. J., and R. Howse. . e Regulation of International Trade. London: Routledge. Vadi, V. S. . “When Cultures Collide: Foreign Direct Investment, Natural Resources, and Indigenous Heritage in International Investment Law.” Columbia Human Rights Law Review :– . PART III

LANDS AND RESOURCES

PLACE OF THE FALLING WATERS

How the Salish and Kootenai Tribes Dealt with Settler Colonialism to Acquire and Name Se̓liš Ksanka Qĺispe̓ Dam

¹²°®¬º ¬ . ´ ¹²³¶µ¹

HEN THE Confederated Salish and Kootenai Tribes (CSKT) purchased and named the Se’liš Ksanka Qĺispe’ Dam in the fall of , Wthey accomplished a major step in reversing settler colonialism on the Flathead Indian Reservation, Montana. e dam produces more than a million megawatt hours (one thousand kilowatt hours) of electricity a year, and the wholesale price in of a megawatt hour in the Paciªc Northwest was approximately twenty-ªve U.S. dollars; it had been as high as sixty dollars. Acquiring a hydroelectric dam whose construction o¤ended their main river and changed Flathead Lake was monumental, historic, and unprecedented, according to a speaker at the celebration of the purchase. How did the tribes stop the logic of elimination in settler colonialism? Have they succeeded in opposing and reversing setter colonialism, or have they capitulated? What changes have they made in their own governance in order to contend with the settlers? In answer to the ªrst question, the CSKT came together for more than a century to ªght the consequences of opening their reservation to settlement in . Most rallied behind the Hell Gate Treaty of , which deªned the reservation and should have been honored to give them the right to the land and resources. ey organized as the Confederated Salish and Kootenai Tribes under the Indian Reorganization Act in . When the tribe was the ªrst of many listed for termination in , their leaders rallied allies outside the tribes ÂÁ¼ R ONALD L. T ROSPER to assist their ªght, as they had done in the s to preserve at least a modest rental for the dam site, and avoided termination. By , the Department of the Interior had moved to support the tribes’ calculation of a fair rental for the dam. In fear of paying that rental, the Montana Power Company (MPC) agreed to a joint ªfty-year license starting in , in which the company would operate the dam for thirty years and the tribes could purchase the dam at book value and operate it for the last twenty years. e Federal Energy Regulatory Commission approved and then enforced the terms of the license, ruling that the tribes had shown their ownership of the dam would be in the public interest. Deregulation of wholesale electric markets will enable the tribes to capture the full value of the power generated, something that would have been di©cult under rate of return regulation that required sharing part of that value with ratepayers. In answer to the second question, the license also provided for mitigation of the impact of the dam on the reservation. Starting in the tribes convinced the Department of the Interior to impose baseload operation on the dam, enact ªsheries improvement, and purchase lands to create alternative habitat for wildlife. ese actions reduced the destruction of nature that usually accompanies capitalist development, and the rental from the dam has helped the tribes protect their forested lands as well. In answer to the third question, the tribal government has a stable tribal council, which built a modern, capable sta¤ while also sharing revenue with the membership through annual per capita payments. Salish Kootenai College trains the membership, and the tribal corporation, which became co-licensee for the dam, is sta¤ed by tribal members as well as by others hired to provide the needed expertise.

BACKGROUND AND CONTEXT

On September , , tribal chairman Vernon Finley announced the name of the dam that controls the level of Flathead Lake: Salish-Kootenai Dam. Soon after, the tribal council amended the name to Se’liš Ksanka Qĺispe’ Dam, to honor all three main groups that comprise the Confederated Salish and Koo- tenai Tribes (Robinson ). e tribes purchased the dam for Ç. million dollars from its previous owner, Northwestern Energy. e dam had been constructed in the s by Montana Power Company and was named Kerr Dam after the president of Montana Power Company, Frank Kerr. e chairman P LACE OF THE F ALLING W ATERS ÂÁ½ suggested that the story of the dam is like a coyote story: both positive and negative. During the celebration, the event was described as monumental, historic, and unprecedented. Why is such an event regarded as unusual? How did it come to pass that a confederated group of tribal people came to own a major hydroelectric dam? e main reason for it being unusual is the long history of dispossession for American Indians. e literature on settler colonialism provides the main analysis: settlers have come to stay; they have taken the land and resources of the Indigenous peoples, and they have established a legal system that prevents recognition of Indigenous land rights or rights of jurisdiction over their former lands. A “logic of elimination” governs the process, with the expectation that the original inhabitants will either disappear or become part of the settler society (Wolfe ). Settler colonialism as a process or as a structure supposedly cannot be reversed (Wolfe ; Veracini a, b). is story shows that the process of taking valuable property can be slowed and eventually reversed. To do this, Indigenous peoples need to ªght hard, ªnd some allies, and win close contests along the way. As Fred Hoxie emphasizes, the idea of settler colonialism also needs the idea of a red continent. “Native people did more than simply ‘resist’”; they changed both themselves and the settlers. Contrary to the “ªxed images and rigid categories” created by scholarship that simply evaluated the morality of the invasion, Indigenous peoples innovated as they dealt with the settlers (Hoxie , –). e Confederated Salish and Kootenai Tribes have taken back the major single resource on their reservation: the dam that can make the top ten feet of Flathead Lake serve as a reservoir is no longer owned by any of the settlers. In addition, the full value of the electricity generated by the dam will be sold by a subsidiary company the tribes have created, Energy Keepers Inc. e ownership is not symbolic, with control remaining with the dominant society through a leasing mechanism. e control of the dam is provided by the fact that the tribes and their company hold the license to operate the dam until . ey can apply for the subsequent ªfty-year license. Another reason that owning and operating the dam appears unusual is that many are surprised an Indian tribe would have the capacity to operate the dam. A common consequence of settler colonialism is that the dispossessed peoples are unable to obtain the education or experience that would make them able to operate a complicated facility, let alone go through the steps needed to obtain ÂÁ¾ R ONALD L. T ROSPER the license. While traditional tribal knowledge may be useful for managing a resource such as wilderness areas, forests, or ªsheries, a hydroelectric dam is not a traditional resource. Contrary to this expectation, the Confederated Tribes have demonstrated capacity to obtain and operate the dam.

SUMMARY OF THE STORY

is chapter provides an analytic history of the Flathead Indian Reservation in order to explain how the Confederated Tribes were able to obtain the license to operate the dam and to purchase the structure, using causal process tracing for a case study (Kay and Baker ). In process tracing, one explains how one event led to another; the ªnal outcome is a result of each of the steps in the process. e tribes were uniªed in their desire to obtain income from the hydroelectric site from the beginning of interest in construction of a dam. Even before the tribes had any formally recognized tribal government, they had a tribal council, which engaged in a lobbying campaign in Washington, D.C. Although there was an attempt to take the dam site completely, the fact that the federal government wanted a share in the output of the dam in order to pay for an irrigation project assisted in convincing the relevant o©cials to keep the dam site as a “trust” resource, with the federal government holding title and control. In addition, a powerful senator from Montana, Burton Wheeler, sided with the Indians. e original license, issued in , contained a clause providing rental to the Indians, with the rental to be adjusted twenty years after the dam began operation. When the dam was not constructed in time, the license was subject to cancellation. By then, the tribes had a formally recognized tribal council. In return for not cancelling the license, the council negotiated for a larger rental, for an additional clause to increase the rental when a new turbine was installed, and for tribal preference in building and operating the dam. e tribes were challenged in , when a Republican Congress introduced legislation to terminate the Flathead Indian Reservation and sell its assets. Once again uniªed, the tribes recruited allies in the state of Montana, including the governor, both senators, and important civic associations. An e¤ective presentation of the tribal case in a two-day hearing before Congress, with many other Indians in the audience giving support, added to the pressure to kill the bill, and it never passed. A small minority of the tribal membership had favored termination, but they were never able to obtain substantial support from others in the tribes. P LACE OF THE F ALLING W ATERS ÂÁ¿

Coincident with the victory in preventing termination, the tribes hired e¤ective lawyers in order to enforce the license provision that rental for the dam site would increase both when a third power generating unit was added in , and twenty years after the ªrst operation of the dam, in . e Montana Power Company fought hard to prevent any increase in annual rental, and their opposition succeeded in delaying the rent increases. As a result of the expert testimony of both its own witnesses and the witnesses for the federal government, the tribes learned just how valuable the dam was. In the rental case involving the third power generating unit, the Secretary of the Interior exercised his authority to raise the rental to a level higher than the Federal Power Commission (FPC) had authorized. By the s, the Department of the Interior was clearly in support of the e¤orts of the tribes to obtain a fair rental. e power of the secretary of the interior to impose conditions on the license became increasingly important. Because the dam was a private dam, not one owned by the federal government, no con¢ict of interest arose in the secretary’s determination to support the tribes.· In the tribes applied to obtain the license to operate the dam, as did the Montana Power Company. is set the stage for a pivotal event in the history of acquiring the dam, a negotiation in in which the tribes and Montana Power Company agreed to obtain the license jointly. In agreeing, the company assured itself of a moderate rental, and the tribes assured themselves of eventually acquiring the dam. Montana Power Company would operate the dam for thirty years, paying Ç million a year beginning in and escalating with the Consumer Price Index (CPI) each year. ( e annual rental reached Ç million in .) e tribes would have the option to operate the dam for twenty years by purchasing the facility at book value: original cost less accumulated depreciation. e tribes accepted a substantially lower rental than the secretary would have imposed, had the secretary heeded the advice of its expert witness, or had the Federal Energy Regulatory Commission provided for an in-kind rental consisting of half the generated electricity, which its witness recommended. e opportunity to own and control the dam was very important to the tribal council. During this negotiation, the tribes again remained uniªed. One tribal councilman had advocated agreeing to an immediate large payment that was obviously too small, given the value of the dam. Having obtained the right to purchase the dam, the tribes set aside Ç, a year to build up enough cash to purchase the dam and pay for initial expenses of creating a company to operate it. ey also increased the ÂÁÀ R ONALD L. T ROSPER annual per capita payment from Ç to Ç,. While the amount needed to purchase the dam and cover initial expenses was underestimated, the existence of a cash reserve made the prospect of borrowing the rest very likely. Unex- pectedly, an additional infusion of cash occurred because of the settlement of the Cobell case regarding the management of tribal trust resources. ¸ With additional funds, the tribes were able to lend their subsidiary, Energy Keepers Inc., the funds needed to purchase the dam and start operation. In addition, many tribal members had obtained the training and education needed to sta¤ the new company. Further expertise was hired on the open market. As a consequence, the Federal Energy Regulatory Commission readily approved the proposal of the tribes to have their new subsidiary, Energy Keepers Inc., replace the power company as co-licensee. Some parties in Montana tried to intervene to halt the turnover; those e¤orts failed because the decision to allow the tribes’ purchase of the dam had been made when the Federal Energy Regulatory Commission approved the license in . e tribes complied with the provisions of the license and bought the dam for Ç. million on September , . On September , , they began to sell electricity on the wholesale market. e rest of this chapter provides details on the long struggle to obtain the dam. e story begins with the opening of the reservation to settlement, when the ªrst proposal occurred to build a hydroelectric facility, and continues from there for years before the tribes obtained full control and ownership.

OPENING THE FLATHEAD INDIAN RESERVATION TO SETTLEMENT

In settler colonialism, the settlers acquire the property of Indigenous peoples, usually without adequate compensation to the original owners. Once acquired, the property is not returned. If the Indians seek compensation for the land taken, only money is available. is pattern applied to the Flathead Indian Reservation, with one exception: the hydroelectric site was leased for ªfty years rather than taken. e Hell Gate Treaty of created Flathead Reservation and ceded the rest of western Montana to the U.S. government for settlement. Although the treaty had provided that no non-Indians could enter the reservation without approval from the chiefs, the story of the dam begins with the opening of the P LACE OF THE F ALLING W ATERS ÂÁÁ

Flathead Indian Reservation to non-Indian settlement in . Prior to allowing homesteaders to claim farming land and others to purchase residential lots on Flathead Lake, people on the tribal roll were allowed to select allotments. Many of these allotments were irrigable land, and the Bureaus of Indian A¤airs and Reclamation cooperated to build the Flathead Indian Irrigation Project. Many of the homesteaders expected to have the irrigation project serve them, and eventually it did. Indian owners of irrigable allotments were persuaded to sell them to settlers after the reservation was opened for settlement. Some of the persuasion took the form of giving an allottee his “patent in fee” without his or her consent, thus making the land taxable by the county as well as eligible for mortgage to local banks. How the irrigation project came to serve primarily non-Indians is a separate story from the story of the hydroelectric dam, except for the fact that the power from the dam eventually assisted in paying for the costs of constructing the irrigation project.º e legislation authorizing the irrigation project in also withdrew ªve hydroelectric sites from acquisition by the settlers entering the reservation. Site number became the site of the large dam that eventually became Se’liš Ksanka Qĺispe’ Dam. In the managers of the irrigation project used funds from the sale of tribal lands to start construction of a tunnel at site that would lead to installation of an electric generator to provide power to the irrigation project. Construction was suspended for lack of funds. Subsequently, this e¤ort of the irrigation project to utilize site gave it a way to claim ownership, even though the work was ªnanced by money from selling lands under the Allotment Act and Congress had not authorized the tunnel work (Voggesser , ). To ªnd funds for a power plant, the project obtained congressional approval in the act of May , , which authorized a power plant with the net revenues to be designated to repay the construction costs of the irrigation project. Two years later, in , another act authorized construction of a power distribution network on the reservation.» Using other generating facilities, the project started that network in (Barrett ). But the project did not build a generator at site number , because the Montana Power Company o¤ered a better option. In Congress passed the original Federal Water Power Act, and shortly thereafter a subsidiary of the Montana Power Company, Rocky Mountain Power Company, applied for a federal license to construct and operate a dam at site . e company proposed to the irrigation project that the new dam would provide more power at less cost to the irrigation project than the facility that the irrigation project was authorized to build. is o¤er of a “low-cost block ÄÃÃ R ONALD L. T ROSPER of power” was accepted, and it became a subject of much con¢ict between the tribes, the irrigation project, and the company as years progressed. In leaders of the company met in private with the secretary of the interior and reached a deal regarding leasing the hydroelectric site; this deal included having Montana Power Company provide the low-cost block of power to the irrigation project and apparently did not involve the tribes owning the site or obtaining rental, since the Montana Power Company argued no rental should be paid to the Indians (Voggesser , ). Part of the capacity of the dam, . megawatts, would be devoted to generating power all the time for a cost of ªfteen cents per kilowatt-hour. Whether the license would also include a rental of the site to the tribes was not clear. is backroom deal provided a basis for creating a public furor opposing the license. John Collier, then a young activist, took up the cause of granting the license to Montana Power Company over the objection of tribal leaders. Senator Burton Wheeler, representing Montana, was also not pleased and he organized a hearing to look into the matter. At the hearing, Senator Wheeler sided with the Indians, and he also noted that the Federal Water Power Act authorized the government to purchase a dam at the end of the ªfty-year license (U.S. Congress , ). e hearing revealed that the leadership of the tribes had been opposing the dam in many ways. ey had encouraged another developer of the site. ey had hired a lawyer to assist and had unsuccessfully asked the Bureau of Indian A¤airs for permission to pay the lawyer. Both the lawyer and the engineer who would help the tribes testiªed at the hearing (U.S. Congress , – ). Traditional elders in the tribes opposed the concept of blocking the falls, which were regarded as a place of great power. To limit the ability of the river to ¢ow would be a great a¤ront to it. Both the spiritual power of the river and the passage of ªsh were important. e ªshery of the lake and the river were of great signiªcance to the tribes, and they knew the connection between these systems mattered. Under traditional beliefs, blocking the “place of the falling waters” was not acceptable. But powerful people in Montana and in the eastern United States wanted to build a dam for the income it would produce, and for the manufacturing facilities the electric power could support. at the dam would harm the river and lake was a small issue, and little understood by the development interests.¼ Before the granting of the ªrst license, an issue had arisen regarding repayment of the construction costs for the irrigation project. While the company may have wished to have had the site conveyed to it, the federal government was P LACE OF THE F ALLING W ATERS ÄÃÂ interested in having the low-cost block of power available to power the project and, more importantly, to provide a mechanism for repayment of the construction costs. is formula, having power revenues pay for irrigation, was by already a common strategy in Western irrigation projects (Wilkinson , ). O©cials in the Bureaus of Reclamation and Indian A¤airs would have a reason for the site of the dam to stay in trust ownership, that is, under the control of the Department of the Interior. ey were supported by non-Indian irrigators on the reservation, who wanted a mechanism to have someone else pay for the cost of constructing the irrigation project (Carlson ).½ e tribes had no chance to stop the licensing of the dam site, given its obvious value for electricity generation and the authority of the secretary of the interior and the other two o©cials of the Federal Power Commission to issue the license. Once the license was issued, a ceremony occurred at the dam site to commemorate the event; a sound ªlm of that event provides a view of the rapids that would be inundated, statements by the chiefs, and a statement by the president of the Montana Power Company. Kootenai chief Koostatah presented Frank Kerr a buckskin with Kerr’s name and the date of the ceremony.¾

ALLIES CHANGE THE BUREAU OF INDIAN AFFAIRS’ ROLE

During the height of the allotment policy, the Indian Bureau usually sided with the settlers (McDonnell ). On the Flathead Reservation, this is evident in the growth of the Flathead Indian Irrigation Project: by more than percent of the irrigators were non-Indian (Trosper , ). In , when the tribes organized a new tribal council, the superintendent asked for federal marshals to break up the meeting. Burton Wheeler, then the federal attorney in Butte, refused this request, and cited the U.S. Constitution’s protection of the right of assembly (Wheeler and Healy ). Because of the reevaluation of the impacts of the allotment policy, pressure had arisen to change the orientation of the Indian Bureau. is had an e¤ect when new leadership was appointed to the Bureau of Indian A¤airs (McDon- nell , –; Rusco , – ). As a result, by the time of the negotiations for the ªrst license of the dam, the Indian Bureau had assumed a more neutral position. In addition, Congress had authorized payments of rentals to Indians in section (e) of the Federal Water Power Act of .¿ e assistant ÄÃÄ R ONALD L. T ROSPER commissioner of the Bureau of Indian A¤airs, J. Henry Scattergood, authored a thorough analysis of the distribution of beneªts of the proposed project (Scat- tergood ). is report was submitted to the Federal Power Commission on December , . e “Scattergood Report” demonstrated competent analysis of the situation and a clear recognition that the beneªts from the dam, after the developing company received a fair rate of return, were to be divided among the Indians, the irrigators, and the people of Montana.Â He had data on the cost of construction for two proposals, that of the Rocky Mountain Power Company and of Walter H. Wheeler, who was supported by the leadership of the tribes. e purpose of the report was to describe the distribution of beneªts for the two proposals and to “ªx the proper rental basis for the use [of ] Indian lands” (Scattergood , ). In doing so, he used information provided by eleven days of hearings before the FPC. To determine the value of the dam, Scattergood calculated the cost of generation on the Montana Power Company’s system in , the last year for which data was complete. He allowed the company a return of percent on its invested capital both in the data and in the calculations for the dam. In testimony at the FPC, Frank Kerr provided the price that the Rocky Mountain Power Com- pany should charge the Montana Power Company, Ç per average horsepower generated. Scattergood calculated that the cost of generation on the Montana Power Company’s system was Ç.. He averaged these two and subtracted from them the estimated cost of generation at the dam: Ç . . e di¤erence was the value of the dam, which he split ªfty/ªfty between the Indians and the general public, giving a value of “Ç. per horsepower as a fair rental for the Indians” (Scattergood , ).·Ã Since he calculated the dam would average , horsepower per year, the resulting rental estimate was Ç,.·· Scattergood assigned the cost of the low-cost block of power to the Rocky Mountain Power Company, to be taken from the public’s share of the value of the dam. e surprising result is that the rental assigned to the tribes was not unreasonable! e actual rental turned out to be more, based on subsequent events. e Scattergood Report was published by the Senate on May , , in a document that contains two other reports and a copy of the license, issued to the Rocky Mountain Power Company.·¸ e “Supplemental Memorandum of May , ” recounts the results of four months of negotiations between the Department of Interior and the Rocky Mountain Power Company, to which the FPC had awarded the license, subject to agreement on the Indian rental. When negotiations commenced, the company proposed a ¢at rental of Ç,. P LACE OF THE F ALLING W ATERS ÄÃÅ

e Bureau of Indian A¤airs proposed that a ¢at rental should be Ç, per year. But the Army Corps of Engineers also proposed a second alternative, that the rental have two parts, a ªxed annual rental and an energy charge based on actual generation at the dam. e proposed ªxed rental was Ç, per year for the ªrst ªve years and Ç, per year for the next ªfteen, and the energy charge could vary from a low of Ç, to a high of Ç ,.·º e memorandum reports, “Four months of negotiations were consumed in discussing those various plans and the variables upon which they were passed and we were never able to reach an agreement” (Scattergood , ).·» In his supplemental memorandum, Scattergood described the agreed-upon rental as follows.

( ) Flat Rental.— e third plan of a ¢at rental basis was ªnally agreed to on terms as set forth below. is plan of rental has the advantages of () reducing all risks to the Indians and providing an assured, deªnite and uniform rental regardless of the amount of use of the plant by the licensee; () it avoids the di©culties of assuring to the Flathead plant its fair proportion of system load; ( ) it avoids any induce- ment that Flathead be used for peaking purposes, or that it be starved unduly at high water periods when other plants of the system could carry an increased share of the load; () it avoids all problems arising from any form of partnership of the Indians with the licensee; and () it eliminates subjecting the Indians to the ups and downs of business and to industrial depressions, a feature which especially exists in Montana, where the electric demand is so largely industrial in character.

is summary of the virtues of a ¢at rental raises issues that would remain important for future negotiations and considerations about sharing the value of the dam. at no attention is given to the environmental impacts of the dam is noteworthy. e comment regarding peaking is puzzling but does reveal that varying the output of the dam on a daily basis was contemplated. at varying the output of the dam might have negative consequences on the river is not part of the consideration. at the government was interested in a rental arrangement that had the chance of sharing the value of the dam in a ¢exible way contradicts the idea that the Bureau of Indian A¤airs was always opposed to Indian interests.·¼ e ¢exibility was focused on the amount of generation rather than price, for the obvious reason that under rate of return regulation, the price would not vary too much. is description of the advantages of a ¢at rental raises issues that would again become relevant when the tribes applied for renewing the license, when the sta¤ ÄÃ¼ R ONALD L. T ROSPER of the Federal Energy Regulatory Commission (FERC) proposed an “in-kind” rental, where the tribes would obtain a share of generation rather than a ¢at rental. e supplemental memorandum also approved of having the plant run by a subsidiary company, because such separation “is a very important consideration in the simpliªcation of the accounting and future calculations for Indian rental readjustments” (Scattergood , ). Not only was Scattergood concerned about the initial rental; he wanted that rental to be adjusted as conditions would change. is separation did not last long, as Montana Power Company absorbed the Rocky Mountain Power Company in . Changes in the amount of rental became subject to much litigation in the years that followed, as explained in the next section. Because the Department of the Interior insisted that a low-cost block of power be assigned to the irrigation project, tribal recollection of this event focused on the government siding with the non-Indian irrigators rather than the tribes. is ªnancing of the construction of the irrigation project, which used lands that were transferred to settlers, and which used water that Indians had been diverting for irrigation, greatly upset the tribal leaders and is a focus of the hearings in and in subsequent litigation. Although tribal leaders opposed the use of power from Kerr Dam to subsidize the irrigation project, in retrospect the government’s desire to ªnd a way to repay the cost of the irrigation project gave it a reason to oppose giving the site to the Montana Power Company outright. In addition, the Flathead Indian Irrigation Project had made a claim to the site if the reasoning of “prior appro- priation” is applied somewhat out of context. In western U.S. water law, people could claim consumptive uses of water by being the ªrst to divert the water and by continuing to use it after diversion. Power generation is an instream use. Scattergood summarized the bureau’s position as follows: “ e Indian Bureau has the double responsibility of protecting fully the tribal rights of the Indians in the matter of power rentals and also of doing everything possible to make a success of the Flathead Indian Irrigation Project committed to its care” ( , ). In the following paragraphs, Scattergood portrays the cost of the low- cost block of power as relatively minimal in comparison to the dam’s generation capacity, further justifying the Indian Bureau’s position. In the license, the rentals agreed to were below that of Scattergood’s estimates; however, those rentals were not scheduled to reach the level of Ç, until ªfteen years after the start of the dam’s operation. But those beneªts to the tribes increased in the next ten years as a result of changes that are described in the next section. P LACE OF THE F ALLING W ATERS ÄÃ½

THE TRIBAL COUNCIL OBTAINS OFFICIAL STATUS

Although construction of the dam was supposed have begun after the ceremony on May , , the Great Depression caused enough economic disruption to cause the company to cease construction. e company defaulted on the license’s promise to build the dam, and the license lapsed. is delay helped the tribes because the legal and political situation changed after the election of Franklin Roosevelt. Roosevelt appointed Harold Ickes as secretary of the interior and John Collier as the commissioner of Indian a¤airs. e Indian Reorganization Act, passed in , authorized tribal governments to obtain o©cial recognition. e Confederated Salish and Kootenai Tribes’ new constitution was the ªrst to be approved under the Indian Reorganization Act (Puisto , ). e Fed- eral Power Act was also altered in major ways in , and one provision of the amendments required that tribes approve hydroelectric licenses on their lands. e tribal council required two amendments to the dam project. e ªrst amendment reduced the authorized number of generation units from three to two, providing for an increase in rental if a third unit was added. e second amendment changed the rental schedule and required Indian preference in employment both in construction and in operation of the new dam. e rental adjustment schedule was changed to be as high as Ç, per year once the dam became operational, to be adjusted if a third unit was constructed. Although the license was reinstated, its term remained as it had been, ªfty years starting in .·½ at the tribes obtained an increase in annual rental for the period from to is signiªcant, as is the employment in the construction and operation of the dam. Because in¢ation caused the dollar to fall by a factor of /th in the seventy-ªve-year period, adjusted for the value of the dollar in , that Ç, in would be the equivalent of Ç . million in . Scattergood may have been right to emphasize the beneªts of a stable rental; with predictable, steady income, the tribal council was able to develop its skills over time. Several key characteristics of the situation when the dam was constructed would prove to be signiªcant later: the Confederated Tribes had a government with authority. e license contained provisions for adjusting the rental. e license also contained the low-cost block of power for the irrigation project, which angered the tribes because that block of power was to be used for paying the construction cost of an irrigation project that provided water primarily to non-members of the tribes. e license provided for Indian preference in construction and in operation of the dam (Voggesser , ). ÄÃ¾ R ONALD L. T ROSPER

e tribal constitution provided for a stable tribal council by staggering the terms of the councilmen. Five of the ªrst ten elected served for two years, and then after that all terms lasted four years with elections every two years.·¾ Two chiefs also provided continuity, as Chiefs Charlo and Koostatah were given life terms without successors (Puisto , ). e tribal council elects its o©cers from among themselves. One of the ªrst actions of the tribal council was to pursue litigation in the Federal Court of Claims for the unfair dealings in the Hell Gate Treaty and in the opening of the reservation for settlement in .·¿ Tribal leaders had cited the provisions of the treaty many times and were well aware of the violations. e tribal council earned political legitimacy through other actions; among them was the institution of per capita payments. e tribes had substantial income from the dam’s rental and from the sale of timber. ese revenues were shared with the electorate. As the story of the dam continues, one can see that the tribal council was ªghting hard for achieving a good rental and for keeping the site of the dam in tribal ownership.

TERMINATION

After the end of World War II, the mood in Congress turned against the e¤orts John Collier had made to empower tribes. In the late s and early s the logic of settler colonialism gripped the U.S. Congress, where a program to end the Indian problem by eliminating reservations and the expenses of the Bureau of Indian A¤airs threatened the Flathead Reservation and many others with elimination. e idea that reservations should be terminated, and that Indians should be liberated from the tyranny of the Indian Bureau, became a strong movement in Congress. In , the year the third unit started operation and rental for the dam should have increased, the tribes faced a much bigger issue. House Concur- rent Resolution , passed on August , , listed ªve large reservations to be eliminated. e Flathead Reservation was ªrst on the list. e termination of reservation status would “free” Indians from federal supervision and would dispose of their assets in some manner. While the motivation of the senators and congressmen who advocated termination appear to have been primarily ideological in character, a desire to eliminate Indians as “others” that did not ªt the American ideal, some suspected that there were interests in the background P LACE OF THE F ALLING W ATERS ÄÃ¿

(such as Montana Power Company) that would like to acquire the assets of the reservations listed for termination (Puisto , ). To hold on to the Kerr Dam site, the tribes had to stop a subsequent bill introduced to terminate the Flathead Reservation’s trust status. e bill was not a surprise, as one had previously been introduced in , and the idea of termination of the Flathead Indian Reservation had been a topic of discussion since the end of World War II.·Â e tribes were informed very early on about what was occurring, for a tribal member, D’Arcy McNickle, had a high position in the Bureau of Indian A¤airs, working for John Collier. McNickle and other Indians in the bureau had facilitated the organization of the National Congress of American Indians in . McNickle had met with the tribal council in , warning of the change in direction of federal policy, and other government o©cials met with the tribal council between then and , when the termination bills were introduced in Congress. e tribes saw the termination policy as a repeat of the opening of the reservation: a grab of tribal property without adequate compensation. e Kerr Dam site and the forest were the two main valuable resources that would be taken. e termination bills (identical in the Senate and House) would abolish the tribal government organized under the Indian Reorganization Act and also terminate the corporation organized under that act. en the disposition of tribal assets would be under the control of the secretary of the interior, who would be authorized to approve any trustees of tribal assets and guardians of the children of tribal members. While the rhetoric supporting termination was to “free” Indians from federal supervision, its actual operation would also free them from the power to organize their own government and would appoint private people to obtain the trustee role held by the federal government. e report of the secretary of the interior regarding the bills stated the following about Kerr Dam.

“Power Site and water rights lease to Montana Power Company” In the event the members of the Tribes decide to liquidate their tribal assets, some di©culty may be encountered in disposing of this contract which was subject to renegotiation with the Montana Power Company. It would appear that this company would be the logical purchaser of the contract and water rights if satisfactory terms could be agreed upon. (U.S. Congress , ) ÄÃÀ R ONALD L. T ROSPER

Mr. Richard Shipman, vice president of the Montana Farmer’s Union, also tes- tiªed that the fear was the Montana Power Company would be the only bidder on the dam; he also pointed out that the legislation instructed the Indians to create a corporation under state of Montana law: “ e best corporation the Flat- head Indians could devise will never be an even match for the Montana Power Co.” (U.S. Congress , ). A lawyer for the Association on American Indian A¤airs laid out most of the problems with the law in a memo to Congress. Both Mr. Arthur Lazarus, testifying for the Association on American Indian A¤airs, and Mr. Shipman were introduced to the committee by Senator James Murray of Montana at the start of the hearings. is indicated to Senator Arthur Watkins, chairing the hearings, the general direction he would need to contend with. e termination bill was a broadside attack on the tribal government, since it provided for elimination of the tribal government, removed that government’s ability to consent to any sale of tribal assets, and described a manner by which the secretary of the interior could liquidate tribal assets. Under the leadership of tribal chairman Walter MacDonald, the Confederated Tribes convinced leadership in Montana that the state would ªnd itself responsible for caring for Indians impoverished by the termination bill. ey also convinced both Senator Murray and Senator Mike Mansªeld that termination was a bad idea; Senator Murray testiªed at the hearing and introduced others who also testiªed. Because of this opposition, the bill to terminate the Flathead Indian Reserva- tion never was approved by the committee, and it died (Puisto , ).

FIGHTS FOR RENTAL ADJUSTMENT

Enforcement of the rental adjustment clauses of the license was far from automatic. e tribes had to ask the Federal Power Commission to enforce the provision, and it ruled in favor of the tribes. e Montana Power Company appealed to the U.S. District Court of Appeals. e tribes used income from the site rental, and from timber sales, to hire excellent lawyers to contest with the company. at obtaining rental increases was so di©cult helped motivate the tribes to apply for the license when it came up for renewal. e ªrst of the dam’s units was placed in service on May , , the second unit in , and the third unit in December . e date of the ªrst unit sets the beginning of the twenty-year period for readjustment of the rental, and the date of the third unit was an occasion also to increase the rental. Each of the ªrst P LACE OF THE F ALLING W ATERS ÄÃÁ two adjustments in rental were subject to litigation, which went all the way to the U.S. Court of Appeals for the District of Columbia; both took e¤ect when the Supreme Court declined to hear an appeal. A decision on January , , increased the rental to Ç , .¸Ã In , when the third unit went into service, the annual rental was Ç,.¸· Because the original license had been amended to include only two units, this new unit allowed the Federal Power Commission to adjust the rental as if the third unit was actually a new license. e secretary of the interior, as provided in section (e) of the Federal Power Act, had authority to approve any increase in rental. e Federal Power Commission proposed an increase of Ç,; the secretary insisted on Ç , .¸¸ e secretary based his estimate on a method called “Sharing the Net Beneªts.” In the decision upholding the new rental, the U.S. Court of Appeals for the District of Columbia quoted a description of the method as follows.

A Sharing of the [Net] Beneªts Method . . . simply means . . . a division or allocation between the owner of the hydroelectric facilities on the one hand and the owner of the lands and dams of the other of the di¤erence between the cost of operating a hypothetical, non-existing and non-proposed, steam plant and the cost of operating the proposed plant.

It appears that all testimony agreed on the net beneªts but disagreed on the proper proportions to use in dividing them up. e secretary of the interior used ªfty-ªfty to get Ç , ; the examiner for the commission felt the investment of the company deserved more credit and changed the additional rental to only Ç,. e Court of Appeals ruled that the view of the secretary determined the ªnal result.¸º Before the decision on the e¤ect of the third unit, the tribes had gone to court again to enforce the provision for an increase in rental after twenty years. ey ªled a case for that increase on May , , the day before the rental was due to be adjusted. e Federal Power Commission delayed taking up the case until . Montana Power Company fought against having the FPC set the rental, arguing that a clause in the original license that mandated arbitration had not been overruled by the law that signiªcantly changed the power of the commission. A decision on February , , increased the rental to Ç, and set the start date for that rental at May , . e decision also reduced the interest charged on the increase in rental from percent to percent.¸» ÄÂÃ R ONALD L. T ROSPER

Why did the company ªght so hard? Probably because it thought its legal arguments were strong, and because the federal government would not assign a high-quality lawyer to argue the cases. Since each decision occurred with a one-vote margin, the company’s lawyers were probably justiªed in making the e¤ort. e company did manage to delay rental increases and did not have to pay compound interest on the delayed rental payments. e reason that the company fought is not as important as the fact that it did ªght rental increases at each step. e company’s intransigence encouraged the tribes to seek any leverage they could; applying to become the licensee provided such leverage as well as o¤ering a way out of the continual ªghting over the annual rental. In an expert witness for the Department of the Interior reported data from MPC’s annual reports to the Federal Energy Regulatory Commission (Dibble ). ese rentals di¤ered signiªcantly from what one would expect from reading the court decisions. I suspect that the company agreed to stretch its retroactive payments and interest for the period – over the next ten years by increasing the annual rental above the amount the court ordered. e company could increase its rates with the Montana Public Service Commission in order to pass the cost along to its ratepayers. In dollars the annual rentals were just under Ç million until , when they increased to about Ç million. e rental increased to an average of about Ç million from to , and above Ç million until the license was renegotiated in .

FEDERAL ENERGY REGULATORY COMMISSION CONSIDERS APPLICATIONS FOR THE SECOND LICENSE

e company applied for renewal of its license on June , , and the tribes applied for the license on July , . Due to the backlog of cases before the Federal Energy Regulatory Commission, the process to determine who would receive the license was started in . In the interim, the commission renewed the license annually without changing the annual rental from the amount determined in .¸¼ e tribes originally applied for the second license to gain leverage for an annual rental increase.¸½ e tribes’ application created a dilemma for the company. To convince the public and the Montana regulators that transfer of the dam to the tribes would be a bad idea, the company needed to stress the value P LACE OF THE F ALLING W ATERS ÄÂÂ of the dam to the ratepayers in terms of low electricity rates. But to minimize the annual rental, the company needed to say the dam was not very valuable. e contest over the correct annual rental for the dam changed dramatically when Montana Power Company invested in large coal generation facilities at Colstrip in eastern Montana. Increases in the use of electricity in Montana required that the company expand production. All the good large hydroelectric sites already had dams; the only way to increase production was to build a fossil fuel burning facility. A great deal of coal was available in western Montana, on and near the Crow and Northern Cheyenne Indian Reservations. is coal could supply the fuel needed for the additional generation. Rather than using a ªctitious thermal alternative, as the court had described the net beneªts method in , the construction of the Colstrip facilities provided data on a real alternative to generation at Kerr Dam.¸¾ Under rate of return regulation, the cost of such additional generation had to be paid for by the ratepayers. us, the company had to reveal the cost of that generation to the Montana Public Service Commission. e avoided cost of new generation was the actual cost of the “Colstrip generators” in eastern Montana. e cost of generation at Colstrip provided solid evidence about the avoided cost of current generation. Any generation that was not fossil fuels, such as hydro, would be judged by whether or not it would allow consumers to “avoid” the cost of Colstrip generation. e commission held hearings regarding the two applications. e evidence about the proper annual rental for the dam is signiªcant. In approving the order for settlement after the negotiations, FERC summarized the testimony regarding the rental as follows.

e main issue arising only if a renewed license were granted to MPC [Montana Power Company] is the amount of the annual charge payable under Section (e) of the Act to the Tribes for the use and occupancy of their land. MPC submitted testimony, based both on indexing of the present Ç. million annual charge and on the “net beneªts” method, that the annual charge should be set at Ç . million for , escalating annually with in¢ation thereafter. e Tribes submitted testimony of one witness in support of a charge of Ç million, and of another witness supporting a charge of some Ç million, each of , and each to escalate thereafter with in¢ation. Both witnesses based their testimony on “net beneªts” analysis. e Secretary submitted testimony also based on “net beneªts” calculations advocating an annual charge of some Ç million, while the commission sta¤ ÄÂÄ R ONALD L. T ROSPER

witness recommended that the annual charge be paid to the Tribes in-kind, in the form of . percent of the project’s output.¸¿

e parties also contested what price the tribes would pay to the company if the tribes were granted the license. e tribes argued for original cost less accumulated depreciation, which would amount to Ç million. e company estimated the book value to be Ç. million, close to its original cost. e company also asked for “severance damages” in the amount of Ç million dollars, which would be the cost of replacing the project, less whatever they were paid in terms of net investment. e other parties said severance damages would be negligible; paying the book value of the dam would cover the company’s costs. If the company did not have the dam, it would not need to rebuild it; neither did the company have a right over the future income of the dam. Interestingly, the secretary of the interior asserted the right given by the Act of March , , to impose a requirement that a block of power be provided to the Flathead Indian Irrigation Project, to cost mills (Ç.) per kilowatt-hour. at ªgure depended on an annual charge of Ç million. e secretary appears to have been hinting to the parties that he would use his authority to impose conditions on any license that would be granted to the company. In this regard, the testimony of Barry Dibble for the secretary is particularly important; he recommended the Ç million ªgure. us, the o¤er of joint settlement summarized the various potential outcomes should the Federal Energy Regulatory Commission be asked to resolve the matter. ose alternatives contained many negative aspects for each party. In particular, the company might have to pay Ç million a year in annual charges, and the tribes would either not get the license or, if they obtained the license, have to pay over Ç million to the company for the dam. When the administrative law judge recommended negotiation, both the tribes and the company found an incentive to agree to a negotiated solution to the con¢ict.¸Â

NEGOTIATIONS FOR A JOINT LICENSE: RENTAL AND OWNERSHIP CONCERNS

Because of the relatively dire consequences potentially occurring for the company or the tribes, and as a consequence of the authority of the secretary of P LACE OF THE F ALLING W ATERS ÄÂÅ the interior to impose conditions, the three parties negotiated to see if some mutually agreeable outcome was possible. ese negotiations occurred in the fall of , in Missoula, Montana.ºÃ Early in the proceedings, the president of Montana Power Company proposed a joint license in which the tribes could acquire the dam for the last twenty years of the license if they were willing to accept an annual charge much below the ones that were potentially facing the company.º· e prospect of obtaining the dam was so appealing to the tribal council that they ended up agreeing to a smaller charge. e Ç . million initially o¤ered by the company was too low. In a series of exchanges, that rental was raised to Ç million, which the tribal council accepted. is rental was considerably below the Ç million supported by the testimony of the expert for the secretary of the interior, and by one of the tribes’ experts.º¸ Part of the deal was that the conveyance price for the dam would be the original cost less accumulated depreciation. at number had been estimated at Ç million in by the tribes’ and the government’s witnesses. Many other details were agreed to in order to settle disputes among the parties. e tribes agreed to the rights of way for the company’s transmission lines that they could contest; both Montana Power Company and the tribes agreed to the low-cost block of power for the ªrst thirty years of the license, with determination of that block of power when the tribes acquired the dam to be settled in the next ªfteen years. Lengthy attention was given to environmental issues, with the company agreeing to more than double the minimum ¢ow from the dam from , to , cubic feet per second of water.

NEGOTIATIONS FOR AND ENFORCEMENT OF THE ENVIRONMENTAL CONCERNS IN THE JOINT LICENSE

When the two parties both applied for the second license, the main focus of the dispute was about the rental value of the dam. e tribes, in addition, did not like the existence of the low-cost block of power, which the company included in their proposal. Neither party originally focused on the environmental costs of the dam, although the tribes understood that both Flathead Lake and Flat- head River had deteriorated as a consequence of the dam’s operation. Erosion on the shore of the lake as well as the ªsheries in the lake had been a¤ected. e ªsheries and wildlife in and along the river below the dam had also been ÄÂ¼ R ONALD L. T ROSPER a¤ected. e National Environmental Policy Act (NEPA) could require that the licensing of a hydroelectric dam would be classiªed as a major federal decision, triggering the need for an environmental impact study, along with the public participation and comments that such studies require. In addition to the requirements of NEPA, the Supreme Court’s decision in Escondido v. La Jolla Band of Indians had established that the secretary of the interior’s authority to prescribe operation conditions on hydropower licenses could not be overruled by FERC.ºº All the parties to the license negotiation were in agreement that compliance with NEPA and the secretary’s discre- tion under section (e) of the act could be postponed until after issuance of the license. e license embodied the results of the Escondido decision in the license. A reason for delaying environmental issues was to allow already funded studies to complete their research. Prior to the negotiations, the tribes had obtained funding from the Bonneville Power Administration to study the impact of both Kerr Dam and Hungry Horse Dam on Flathead Lake and Flat- head River. FERC ruled that an environmental impact study was not required for the license; it did ask its sta¤ to complete an “Environmental Impact Statement” in after the environmental studies were complete and both the Department of the Interior and the tribes conducted economic analyses of the operational options for Kerr Dam. Discussion and litigation about the environmental conditions for Kerr Dam operation occurred from to .º» e tribes’ in-house legal department coordinated sta¤ e¤orts to deal with the issues, relying particularly on the experts in the Natural Resources Department of the Confederated Tribes. Once agreement was reached, the provisions of the license that addressed mitigation gave the tribes and its Natural Resources Department the task of carrying out the provisions. All this demonstrates that the tribes had developed signiªcant capacity in legal matters, ªnancial management, and natural resources management. is was part of the general strengthening of the tribes’ administrative capacity, aided in great part by the implementation of a personnel policy in the late s. e policy gave tribal preference in hiring decisions; but once people were hired, promotion and annual reviews were based on job competence. e administrative capacity of its sta¤ allowed the tribes to work toward improving ecosystem conditions on the reservation, a way to implement their concern for those systems. Other actions during this period included establishment of a wilderness area in the Mission Mountains in and reconceptualizing the Forest Management Plan, based on the role of ªre in the reservations’ forest. e P LACE OF THE F ALLING W ATERS ÄÂ½ tribes also contracted to operate the electric distribution system of the Flathead Indian Irrigation Project, which they renamed Mission Valley Power. During negotiations about mitigation of the e¤ects of Kerr Dam, two main issues were considered: () would Kerr continue to be used for peaking and load following, and () how much money would Montana Power Company pay to provide for mitigation measures, primarily the purchase of land for wildlife purposes and actions to assist the ªsheries in the lake and river? e tribes worked hard to advocate that the dam change from a peaking facility to a baseload facility, in order to improve the conditions in the lower river. e company did not want to give up the additional revenue from using the facility to generate more power during peak energy demand periods in days. In addition, the company used the dam to regulate the load on its electric grid. is “load following,” now called “ancillary services,” consisted of using one of the three generators at Kerr to oscillate within each hour of the day to balance the load on the system, as the company purchased generation from other suppliers and as demand for power di¤ered from generation on an instantaneous basis. Such load following meant that when the facility was running at full power during spring runo¤, some water would be spilled over the dam while that one unit oscillated its amount of generation on an instantaneous basis. e facility would not reduce generation on o¤-peak hours during spring runo¤, because the value of electric generation even in nonpeak hours was high. e extent to which peaking was feasible depended on the ¢ow designated to Kerr by the Paciªc Northwest Power Agreement in each month of the year. Generally, peaking was valuable only during the autumn months when daily water releases could be adjusted to peak levels in the daytime and much lower levels in the nighttime. During these periods, the ¢ow of water to the lower river would ¢uctuate between the minimum required ¢ow, , cubic feet per second, and the maximum capacity of the generators, , cubic feet per second. During periods of low water ¢ow in the summer and winter, peaking is not possible. At the end of the discussions, litigation, and negotiation, Kerr’s operations did change to baseload; limits were placed on the speed with which ¢ows could change from day to day (“ramping rates”), and the company had to pay for the purchase of lands and for ongoing mitigation measures each year. e parties did not agree on the extent to which the company’s mitigation expenses would go into the conveyance price, although a provision was included in the ªnal agreement that if the Montana Public Service Com- mission allowed the company to charge mitigation costs to its customers, ÄÂ¾ R ONALD L. T ROSPER those costs could not be included in the conveyance price. e agreement on mitigation was in¢uenced by the sale of Kerr Dam and other Montana Power Company generation units to Pennsylvania Power and Light Montana in (approved by FERC on July , ). e need to complete the sale led Montana Power Company to wish to complete a settlement regarding the mitigation measures and costs.º¼ e struggle over environmental provisions allowed the tribes to improve the knowledge and capacity of its sta¤ regarding the processes followed by the Federal Energy Regulatory Commission, the rules that governed the coordination of power generation on the Columbia River, and many other matters that would a¤ect acquisition of the license. is development of the capacity of the tribes contributed to establishment of an energy department in and the creation in of a tribal company, Energy Keepers Inc., under section of the Indian Reorganization Act.

CHANGE IN STRUCTURE OF THE ELECTRICITY INDUSTRY

Of particular importance in the tribes’ ability to obtain the full value of the dam is the deregulation of wholesale power production in the United States. e parties to the negotiations did not consider the possible e¤ects of deregulation of wholesale electricity generation on the provisions of the license, even though other industries such as the airlines were in the midst of removal of price regulation by government agencies. e order that approved the joint license anticipated that wholesale electricity regulation would continue with the following statement.

For the ªrst years, MPC’s ratepayers will receive part of the beneªts of Kerr’s relatively low cost generating capability, with the Tribes’ members receiving a part of such beneªts through the annual charge. For the last years, the Tribes’ members will share such beneªts with the ratepayers of the utility with whom the Tribes negotiate a sale of the output; the Tribes also will have the beneªt of controlling the resource.º½

is statement assumes that the tribes would be subject to rate of return regulation upon purchasing the dam, and that such regulation would involve some P LACE OF THE F ALLING W ATERS ÄÂ¿ sharing with ratepayers. e new, higher rental of the dam was a cost that Mon- tana Power Company could pass to its ratepayers, because the tribes were a third party and the rental is a clear cost to the company. If the tribes were operating the dam, care would have needed to be taken to establish a combination of institutions that would allow the continuation of the annual charge. Under rate of return regulation, one could anticipate considerable jousting for position and ªghts over the proper rental. In a report to the tribal council, I expressed concern about this possibility regarding how much to set aside to save up for eventual purchase (Trosper ). e risk was that if the tribes purchased the dam for its original cost less depreciation, and if a regulating entity were to insist that rates be set under the rules of rate of return regulation, then the tribes would be eligible for a return that would consist of an interest rate applied to the capital cost of the dam. Because the dam would be purchased for only about Ç million, the annual return would be a low number; at a percent interest rate, it would be Ç. million a year. Such a decrease in the annual amount paid to the tribes would transfer all the economic value of the dam to the ratepayers of the utility that would purchase the output. One way to avoid this outcome might have been to set up a separate, tribally owned company that would operate the dam, pay the tribes the annual charge, and include that cost in what ratepayers would pay. e service commission supervising the utility would of course notice that if the tribes’ subsidiary paid a high rental, then rates would be high. ere would be an argument over the proper level of the rental rate. e content of this argument would be very similar to the testimony to FERC regarding the proper rental for Montana Power Company to pay the tribes. One likely outcome would be to leave the rental at the rate set in the license, thus limiting the ability of the tribes to realize the full economic value of the dam after . ese puzzles and problems created by rate of return regulation were removed from consideration when the state of Montana moved to deregulate the wholesale price of electricity in . After deregulation, the price paid to a generator of electricity would be determined by a market in which all the owners of generation would compete. e wholesale price of electricity would depend on the supply of generation and the demand from companies that distribute electricity to consumers. Because hydroelectric generation with an existing facility is low cost, the owner of a hydroelectric dam is in a very good position to earn an excellent rental when competition with fossil fuel generation determines the wholesale price of electricity. ÄÂÀ R ONALD L. T ROSPER

e managers of Montana Power Company determined that it was in the best interest of the company to sell its generation facilities; Pennsylvania Power and Light bought them and began to operate them with a subsidiary, Pennsyl- vania Power and Light Montana. is allowed the wholesale price of electricity to increase in Montana after an adjustment period. Montana Power Company sold its distribution facilities to Northwestern Energy, invested the proceeds of both sales in a ªber optic network, and went bankrupt. Deregulation eliminated all arguments about what share the tribes would obtain under rate of return regulation. Instead, deregulation made it possible for the tribes to capture the entire rent of the site if they could obtain the license. To do that, they needed to pay the “conveyance price.” Determining that price turned out to be a matter of dispute with Pennsylvania Power and Light Montana.

THE FINAL FIGHT OVER THE CONVEYANCE PRICE

e license provided a process for determining the conveyance price. By September , , the company sharing the license was required to provide an estimated price, and to update that price on September , . e Confeder- ated Tribes could then negotiate the price, followed, if necessary, by arbitration. e goal of the provisions of the license was to assure the tribes that they would know the conveyance price in time to assemble the funds and pay it by September , . In the testimony supporting the tribes’ license application, economist Gor- don Taylor estimated that the value of original cost less accumulated depreciation, the conveyance price, would be Ç million if the tribes were to become the licensee in . After the license was issued, I was working as sta¤ for the tribes. I was asked to advise the council regarding what the conveyance price might be. Based on testimony in the license case and using the depreciations records shared by the Montana Power Company, I estimated that there would be substantial investment in turbines and generators, and the book value of the dam was likely to rise from Ç million in to Ç. million in . is calculation was part of a general report to the tribal council, which decided to set aside Ç, a year into a fund that would grow su©ciently to pay for the costs of acquiring the dam (Trosper ). P LACE OF THE F ALLING W ATERS ÄÂÁ

In September , Pennsylvania Power and Light Montana, the operator of the dam, presented an estimated conveyance price of approximately Ç million. In September , they revised the estimate to Ç. million. e tribes indicated serious disagreement with the estimated cost, and eventually an arbitration panel was selected to settle the dispute. In their ªnal presentations to the arbitration panel, Pennsylvania Power and Light Montana, estimated that the conveyance price should be Ç. million. e tribes disputed this estimate, and they presented an estimated conveyance price of Ç. million. Most of the dispute was about Ç . million in environmental costs, which the company wanted included in the book value of the dam. e arbitration panel determined that most of the costs of environmental mitigation had not been entered into Penn- sylvania Power and Light Montana’s accounts and thus did not comply with the requirements of the license. A small portion had been entered properly into the accounts. e arbitration panel ruled that the conveyance price should be Ç,,. As of March , , the tribes knew the price of purchasing the dam.º¾ eir power company, Energy Keepers Inc., paid that price on September , , and began to sell electricity from the dam at : a.m. on September , .

ENERGY KEEPERS INC. REPLACES NORTHWESTERN ENERGY AS CO¢ LICENSEE

During the tussle over the conveyance prices, Pennsylvania Power and Light Montana, sold Kerr Dam to Northwestern Energy, and that company received the conveyance price. Early in , the tribes proposed that Energy Keepers Inc. replace Northwestern Energy as the utility that was co-licensee of the dam in its license. On September , , the Federal Energy Regulatory Commission agreed to place Energy Keepers Inc. as the co-licensee of the dam.º¿ e Con- federated Salish and Kootenai Tribes remained the other licensee. is structure allowed FERC to supervise Energy Keepers as it would any utility operating a federally licensed dam. It also allowed the Confederated Tribes to insulate its other assets from those of Energy Keepers Inc. Operation of the dam would involve some market and other risks that Energy Keepers would manage while providing a steady income to the tribes with continuation of the conveyance price. e low international prices of oil and gas reduced the wholesale price of electricity, in , to approximately Ç per megawatt hour. is low price demonstrated that market risk was an important matter concerning Kerr Dam. ÄÄÃ R ONALD L. T ROSPER

But even at such a low price, the annual net revenue of the dam would amount to nearly Ç million a year, and the purchase price, Ç. million, was the bargain that had been anticipated when the joint license was agreed to. e tribes ªnanced the purchase by lending tribal funds to Energy Keepers at competitive capital market rates. Since Energy Keepers became the co-licensee, it has paid the annual charge as determined by the rules of the license, and it also repays the tribes’ loan. Most of the tribal funds came from the account that had been built up with the Ç, set aside every year, plus a contribution from the tribe’s portion of the settlement of the Cobell case for mismanagement of trust assets. e petition to make Energy Keepers co-licensee with the Confederated Tribes was opposed by some parties in western Montana who had a record of ªghting the tribes on other issues, especially water rights. FERC dismissed the arguments used for being untimely, as the decision that the tribes would acquire the license had been made in . All that mattered to the Federal Energy Reg- ulatory Commission was two issues: “a transfer may be approved on a showing that transferee is qualiªed to hold the license and operate the project, and that transfer is in the public interest.” e commission went on to rule, “ ere is no substantial evidence in the record suggesting that Energy Keepers does not satisfy the Commission’s transfer standard.”ºÂ In the FERC administrative law judge had notiªed the tribes that he considered them unqualiªed to acquire a hydroelectric license. By that issue had been set aside and the tribes’ subsidiary, Energy Keepers Inc., had demonstrated its capacity to operate the dam. e tribes had demonstrated their intention and capacity by having su©cient funds to ªnance their own company, by many years of operating the mitigation measures prescribed by the license and by operating Mission Valley Power, which serves residential and business customers on the reservation. Every objection to taking over the dam had been satisªed to the standards of the Federal Energy Regulatory Commission.

CONCLUSION

As this history demonstrates, the acquisition of Kerr Dam and the subsequent renaming of it to Salish Kootenai Dam, on September , and then to Se’liš Ksanka Qĺispe’ Dam on October , , was no easy task. What in the s was known as the “Flathead Tribe” had to join with allies in Washington, D.C., P LACE OF THE F ALLING W ATERS ÄÄÂ to ensure it kept ownership of the site and that it would obtain annual rentals and employment from the dam. In the tribe had to prevent termination of the Flathead Reservation, which would have allowed the Montana Power Company to attempt to purchase the dam. As with the ªght over the original license, the ªght to prevent termination involved work with allies, primarily with sympathetic senators from Montana. Senator Wheeler in the ªght and Senators Murray and Mansªeld in the ªght proved to be very helpful, as were external allies such as the American Indian Defense Association, headed by John Collier in , and the Association on American Indian A¤airs and the National Congress of American Indians in . In protecting themselves and their part of the red continent, the Indians of the Flathead Indian Reservation used political divisions and the legal system of the settlers to advance their interests. Settler colonialism is not a monolithic process; there were ways for Indigenous peoples to deal with the many challenges they faced. e Flathead Tribe, whose name changed to the Confederated Salish and Kootenai Tribes, had to ªght to have the rentals increased periodically as provided for in the license. Arguments over the rental allowed the tribes to hire excellent lawyers and to learn the true value of the dam. Although Senator Wheeler and J. Henry Scattergood thought that the federal government would be able to acquire the dam in on behalf of the Salish and Kootenai Tribes, that option proved not to be possible. e ªght over rentals between and had moved the Department of the Interior to the tribes’ side, and in evidence presented in testimony to determine who would obtain the license demonstrated that department would support a large rental if Montana Power Company acquired the license. e company avoided that result by agreeing to a joint license with provision that the Confederated Tribes would be able to purchase the dam for a bargain price after thirty years of operation. e tribes agreed to a lower rental in order to obtain that option. Negotiations to enforce environmental conditions in the license led to considerable expenditure by Montana Power Company to mitigate the e¤ects of the dam, and the tribes successfully resisted having those costs included in the conveyance price. e tribes prepared themselves to acquire the license by setting aside half a million dollars a year to build up a fund to ªnance the purchase, and they created a subsidiary company that could hire the technical experts needed to operate the dam. Many of those experts were tribal members, because the tribes also supported education and training of their members. Some members obtained training on their own, intending to apply to work for the new company. A son ÄÄÄ R ONALD L. T ROSPER of one of the tribal members who operated the dam in the s and s had been employed in the electricity industry; upon his retirement, he was appointed chairman of the board of directors of the tribes’ subsidiary, Energy Keepers Inc. Having acquired the dam, the tribes now face a new set of issues. One is that wholesale electricity prices are volatile; the tribal government needs to avoid becoming dependent on a ¢ow of funds that is above the long-term capacity of the dam to provide revenue. Perhaps fortunately, the tribes acquired the dam during a period of low wholesale prices; they will know what the low part of the price cycle involves. e environmental impacts of the dam will remain issues; now that the tribes have control of the dam, they can address those issues as they arise. Further development possibilities exist, as there are four other sites on the river that could become “run of the river” dams generating electricity but harming the river. To date, the tribes have rejected consideration of those potential dams. Perhaps other unforeseen issues will arise; certainly, if the world decides to limit climate change through measures to limit fossil fuel use, owning a hydroelectric facility will be advantageous. Because solar and wind generation may become strong competitors, the value of a hydroelectric site will remain uncertain as fossil fuel use diminishes.

NOTES

e author is a member of the Confederated Salish and Kootenai Tribes. He receives an annual per capita payment, which was Ç, in . He also has worked for the tribes on projects relating to the topic of this chapter, namely on estimating the eventual cost of purchasing the dam, on the generation from the dam, and on the organizational structure of Energy Keepers Inc. From to , the tribes employed him as tribal economist; subsequently, he worked as a consultant, – . As a condition for writing about the dam, sta¤ of the tribes have reviewed this document to protect the tribes’ interests. Many federal dams are operated by the Bureau of Reclamation, which reports to the secretary of the interior. Daniel McCool () discusses this and other con¢icts of interest in the trust relationship between Indians and the federal government. e settlement followed the settlement of the court case in the United States District Court for the District of Colombia, Cobell v. Salazar, a class action suit against two federal government departments for mismanaging Indian trust funds. is settlement followed a decision by the D.C. Court of Appeals to remand an earlier decision of the district court, Cobell v. Salazar (Cobell XXII), F. d (D.C. Cir. ). P LACE OF THE F ALLING W ATERS ÄÄÅ

at irrigators could not pay the construction cost debt was a pattern across reservations (Carlson ). An Act Making Appropriations for the Department of the Interior for the Fiscal Year Ending June , , Stat. (May , ) at –; An Act Making Appropriations for the Department of the Interior for the Fiscal Year Ending June , , and for Other Purposes, PL – Stat. (March , ) at – . D’Arcy McNickle, a tribal member, has the construction of a dam as one of the major plot elements in his book Wind from an Enemy Sky (). e developers in the novel have poor understanding of Indians’ viewpoints. e dam, however, is more of an irrigation than a hydroelectric dam, as it “stopped” the water and diverted the entire river to a canal. But Kerr Dam does stop the river for a short distance when all the ¢ow goes through the generators, and the rapids that were at the site are gone. See also the video e Place of the Falling Waters (Bigcrane and Smith ). See also the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana v. e United States, F.d (). Re²ections on Salish Kootenai Dam, edited by Frank Tyro, Salish Kootenai College productions, Pablo, Mont., . A solicitor’s opinion on March , , clariªed that the provision applied to Flathead. e history of the Scattergood report is recounted by the Court of Claims: Con- federated Salish and Kootenai Tribes, F.d . Scattergood had served on the Pennsylvania public service commission and was quite knowledgeable about power values and rate of return regulation (U.S. Congress , ). Scattergood stated the price of Ç. per horsepower-year would be equal to Ç. per kilowatt- hour as the wholesale price. A horsepower- year is percent of a kilowatt-year (more precisely, .). Scattergood used an estimated average annual output of ,, kilowatt- hours for all his calculations. A dollar in would be worth Ç. in , using the Consumer Price Index for All Urban Consumers (CPI- U) of –. e value of Ç. per kilowatt- hour in dollars is Ç. . e total rental for the dam, rounded to Ç,, would be Ç. million in dollars. Both the Federal Power Commission and the Army Corps of Engineers also proposed rental rates. e low energy charge corresponded to annual generation of million kilowatt- hours; the high energy charge assumed million kilowatt-hours per year. e sta¤ of the Federal Power Commission also proposed a variable rental, with both the demand charge and the energy charge varying depending on conditions. eir total rentals varied from Ç, per year to Ç, per year, based on annual energy varying between million and million kilowatt- hours. ere is no evidence that the Indians were consulted regarding the proposals; the Indian Bureau represented them in all negotiations. In his ªrst memorandum, Scattergood proposed that a sinking fund be set up to accumulate funds to enable the government to purchase the dam for the Indians ÄÄ¼ R ONALD L. T ROSPER

at the end of the ªfty-year license. He relied on language in the Federal Power Act authorizing amortization funds. In his second memorandum, Scattergood revealed that the amortization provisions could not be used to justify creation of such a sinking fund. at he sought to have such a sinking fund set up shows signiªcant consideration of the long-term interests of the tribes. Although the license for the dam included a clause about creation of an amortization fund, that clause did not mandate the actual creation of a sinking fund, even though it is easy to interpret that clause as requiring the creation of an actual fund. Order Approving Settlement and Issuing License, FERC ¶ , ( July , ). Because staggered terms are rare in early Indian Reorganization Act constitutions, many have wondered where the idea originated for the CSKT constitution. Per- haps the staggered terms on the boards of independent federal commissions such as the Federal Power Commission were a source. By , tribal leadership would have been aware of the approach, which the FPC had used since . Congress gave the tribes authority to sue the United States in the Court of Claims for many aspects of the opening of the reservation in . e tribes also sued in the Indian Claims Commission for the unfairness of the Hell Gate Treaty (G. Wilkinson ). See Jaakko Puisto (, ); his chapter reports the discussions and the termination hearings. e Montana Power Company v. Federal Power Commission, F.d (D.C. Cir. ). Both testimony at the termination hearings and the data reported by Dibble () support this annual rental ªgure. Apparently, the scheduled rental after was Ç, and the increased rental would be Ç , , which is close to what Dibble () found in Montana Power Company’s Form reports for through . Montana Power Company, F.d (). e Montana Power Company v. Federal Power Commission et al., F.d (Feb- ruary , ). e argument over the authority of the commission was decided in favor of the commission in e Montana Power Company v. Federal Power Commission et al., F.d ( July , ), which then sent the case back to be argued on the merits regarding the correct rental. Unlike the third unit case, and unlike the subsequent testimony in , this case did not use the sharing of the net beneªts method, because for some reason the imaginary steam plant had to be calculated for ; the decision used a “proªtability” analysis. For instance, the dissent states that one would reduce the rental but leave it retroactive; the other would remove the retroactivity but not change the rental. But they disagreed, and the third judge was in favor of both the rental increase (to Ç,) and the retroactivity (to ). Order Approving Settlement and Issuing License, FERC ¶ ,. Fred Houle, the tribes’ executive secretary, told me in that the surge in tribal members’ interest in acquiring the license was contrary to the original purpose of the application, to increase the tribes’ rental. e outcome of the negotiations in P LACE OF THE F ALLING W ATERS ÄÄ½

, described below, conªrms Houle’s view, that acquiring the license did reduce the rental that the tribes would receive. e two rental adjustment cases had become esoteric arguments about the provisions of the original license and its amendment in . For the determination of rentals in the new license, all those arguments become irrelevant and the testimony focused on the value of the dam for a new license. Order Approving Settlement and Issuing License, FERC ¶ , at – . Because of his authority to approve a license, the secretary of the interior was also represented at the negotiations. Once completed, the joint o¤er of settlement was signed by all three parties. e Montana Consumer Counsel and the three irrigation districts also signed the ªnal agreement. Order Approving Settlement and Issuing License, FERC ¶ ,. I was present at these negotiations as an observer on the tribes’ sta¤, where I worked from to . Nick Fels, attorney for Montana Power Company, has told me twice that the idea for the joint license came from Frank McIlwain, president of Montana Power Company. e second occasion was on September , , at the celebration for the tribes’ acquisition of the dam. e company wanted to avoid a high rental, and the tribes valued obtaining the dam. Because the company was paying more than percent for its cost of capital, it would treat the value of the dam thirty years from the agreement as very low. At percent, in a dollar realized in would be seen as worth only /(.)^ , about . cents. One can make several calculations, each dependent on a guess as to what the company would be giving up in rental for the past twenty years. If Barry Dibble’s numbers are used, then the total value of the dam according to avoided cost was Ç million. If one deducts a rental of Ç million from this, then the annual value of the dam would be Ç million. By accepting the deal, the company was avoiding paying an additional Ç million for the ªrst thirty years, and then was giving up that Ç million and the rest of the value, a total of Ç million in for the next twenty years. Discounted back to the present at an percent interest rate, the annual value in would be worth only Ç. million. us an immediate savings of Ç million per year for thirty years in would be o¤set by giving up a future beneªt of the discounted values of Ç. million in the thirty-ªrst year, declining in present value for twenty years. e tribal council may not have believed it was giving up that much in rental per year, but the council did know that it would obtain the full value of the dam in , probably for perpetuity. e present value of that opportunity at the tribes’ low rate of discount was much larger than what they were giving up. We know now that the value of electricity did not hold constant at its value and has fallen in real terms. e high rentals the Department of the Interior was considering would have been very advantageous to the tribes. Escondido Mutual Water Company v. La Jolla Band of Mission Indians, U.S. (). I served as a consultant to the tribes during this litigation and associated settlement negotiations, as well as during the creation of Energy Keepers Inc., described below. ÄÄ¾ R ONALD L. T ROSPER

According to the testimony of Brian Lipscomb in the arbitration case, the two power companies spent about Ç million for purchase of land and habitat restoration. ey also supported annual expenses of implementing mitigation, escalated by the CPI. is amount was Ç million in . Order Approving Settlement and Issuing License, FERC ¶ ,, section III. American Arbitration Association, In the Matter of Arbitration between Confeder- ated Salish and Kootenai Tribes of the Flathead Reservation, Claimant, and PPL Montana, LLC, Respondent, ªnal award, AAA No. - - - (March , ). Confederated Salish and Kootenai Tribes et al., FERC ¶ , (). Order Denying Rehearing, FERC ¶ , (November , ) at paras. and . e Montana Land and Water Alliance, Senators Verdell Jackson and Bob Keenan, and the Montana Public Service Commission immediately requested a rehearing of the FERC sta¤ ’s order. FERC denied the request. FERC’s main point was that the issues being raised were collateral attacks on the license issued in ; hence they were untimely. ese e¤orts represented a last attempt by some of the settlers to prevent the tribes’ acquisition of a major asset that had been taken from them.

REFERENCES

Barrett, P. M. . Final Report on the Flathead Irrigation Project. n.p.: Flathead Resource Organization. Bigcrane, R., and T. Smith. . e Place of the Falling Waters. Pablo, Mont.: SKC Media. Carlson, L. A. . “ e Economics and Politics of Irrigation Projects on Indian Reser- vations, – .” In e Other Side of the Frontier: Economic Explorations into Native American History, edited by Linda Barrington, – . Boulder, Colo.: Westview. Dibble, E. F. . “Answering Direct Testimony of Edward Fitzgerald Dibble for the Secretary of the Interior on the Issue of an Annual Charge for the Confederated Salish and Kootenai Tribes. Filed with Federal Energy Regulatory Commission on April , .” Exhibit in Project No. - and - , FERC archives. Copy in author’s possession. Hoxie, F. E. . “Retrieving the Red Continent: Settler Colonialism and the History of American Indians in the US.” Ethnic and Racial Studies (): –. Kay, A., and P. Baker. . “What Can Causal Process Tracing O¤er to Policy Studies? A Review of the Literature.” Policy Studies Journal (): – . McCool, D. . Command of the Waters: Iron Triangles, Federal Water Development, and Indian Water. Tucson: University of Arizona Press. McDonnell, J. A. . e Dispossession of the American Indians, ¨¨ –³ . Bloomington: Indiana University Press. McNickle, D. . Wind from an Enemy Sky. Albuquerque: University of New Mexico Press. P LACE OF THE F ALLING W ATERS ÄÄ¿

Puisto, J. . “‘ is Is My Reservation, I Belong Here’: e Salish Kootenai Struggle Against Termination.” PhD diss., Arizona State University. Robinson, N. . “Dam Renamed at Quarterly Meeting.” Char- Koosta News, October . Rusco, E. R. . A Fateful Time: e Background and Legislative History of the Indian Reorganization Act. Reno: University of Nevada Press. Scattergood, J. H. . Flathead Power Development. Senate Document , st Con- gress, nd session. Washington, D.C.: U.S. Government Printing O©ce. Trosper, R. L. . “ e Economic Impact of the Allotment Policy on the Flathead Indian Reservation.” PhD diss., Harvard University. Trosper, R. L. . Kerr Recapture Report. Pablo, Mont.: Confederated Salish and Koo- tenai Tribes. U.S. Congress. . Survey of Conditions of the Indians in the United States. Part , Hearings Before a Subcommittee of the Committee on Indian Aairs, United States Senate, Seventieth Congress, Second Session. Washington, D.C.: Government Printing O©ce. U.S. Congress. . Termination of Federal Supervision over Certain Tribes of Indians. Part , On S and HR . th ed. Washington, D.C.: Government Printing O©ce. Veracini, L. a. “Introducing: Settler Colonial Studies.” Settler Colonial Studies (): – . Veracini, L. b. “Isopolitics, Deep Colonizing, Settler Colonialism.” Interventions (): – . Voggesser, G. . “Of Woods, Wilderness, and Water: Negotiating Natural Resources on the Blackfeet, Flathead, and Fort Peck Reservations –.” PhD diss., Uni- versity of Oklahoma. Wheeler, B. K., and P. Healy. . Yankee from the West. Garden City, N.Y.: Doubleday. Wilkinson, C. F. . Crossing the Next Meridian: Land, Water, and the Future of the West. Washington, D.C.: Island Press. Wilkinson, G. A. . “Indian Tribal Claims Before the Court of Claims.” Georgetown Law Journal :– . Wolfe, P. . “Settler Colonialism and the Elimination of the Native.” Journal of Geno- cide Research (): – .

NATURAL RESOURCES AND ABORIGINAL AUTONOMY

Economic Development and the Boundaries of Indigenous Control and Engagement

±µ° ¸²®´µ³ ®° º ¸®¹«° ·²¬¹²»º

HE PAST forty years have seen a veritable revolution in Indigenous business and economic development. Long dominated by the government Tof Canada through Indian agents and the Department of Indian A¤airs, Indigenous peoples fought for autonomy and recognition of their rights over traditional territories and the resources located thereon. e transformation has been dramatic. Several Indigenous economic development corporations now have assets counted in the hundreds of millions of dollars. First Nations in Western Canada, of which currently produce oil and gas, have seriously contemplated investing in the Trans Mountain Expansion Project, one of a growing number of Indigenous investments active or under consideration in the resource sector. Capitalizing on favorable court decisions, Indigenous groups have formed new and extensive relationships with resource companies, largely through impact and beneªt agreements (IBAs) that have been instrumental in securing Indigenous participation in the resource economy. Following the Supreme Court of Canada decisions in Haida in , Taku River also in , and Tsilhqot’in Nation in , it is now obvious that Aborig- inal rights are front of mind for any resource projects in Canada, and engaging with Aboriginal governments is a priority for resource companies (Coates and Newman ; Newman ). An important mechanism for engaging Aborig- inal groups in resource activity is through IBAs and collaboration agreements. N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY ÄÄÁ

ese organizations owned and controlled by the community re¢ect a uniquely Indigenous perspective on economic development, in which Indigenous governments use these commercial vehicles to pursue a variety of local business, employment, social, and cultural ends. As a consequence, the relationship between Indigenous governments and administration and the operations of Aboriginal economic development corporations has become a central feature of the pursuit of Indigenous autonomy in Canada. e Harvard Project long ago made a compelling case that Indigenous governance and economic development are intricately linked. Indeed, it has become well established in the analysis of Indigenous governance that the separation of government and community-run business operations is central to the viability of commercial activity. Analysis of the Canadian situation, while still at an early stage of development and without the depth of analysis that characterizes the Harvard Project research, suggests that Indigenous communities with strong business operations also have solid local governance and e¤ective government- community relations. At this stage, and subject to veriªcation through additional research, it appears that several successful Indigenous governments and business have close government-business relations at the local level, including joint membership on councils and the boards of Indigenous economic development corporations. ere are other elements that favor sustainable economic development, including such obvious aspects as “geographic luck” (proximity to a natural resource site or commercial opportunity) and historic involvement in business activities. More generally, however, it seems increasingly clear that Indigenous communities with active economic engagements share strong leadership at the governance level, a clear understanding of Indigenous legal and treaty rights (particularly in the case of modern treaties), and an open attitude to entrepreneurial activities. In the end, stability and capacity in governance are strongly connected to economic development, if not, in the Canadian situation, as much systematic evidence of the need for separation between Indigenous governments and business operations as in the United States. e IBAs have emerged as a major public policy tool for Aboriginal governments in their relationships with industry; they are not the only option, and Aboriginal groups have explored everything from rejection of development projects to gaining equity or ownership in resource development. In this chapter we argue that involvement in the natural resources sectors, through IBAs and other means, is helping expand the jurisdiction of Canada’s Aboriginal peoples and is enabling communities to pursue innovative governance approaches to ÄÅÃ K EN C OATES AND C ARIN H OLROYD achieve a broad range of Aboriginal objectives (Gibson and O’Faircheallaigh ; Northern Alberta Development Council ; Vermette ). To start, it is important to recognize that IBAs are not a cure-all for Indig- enous communities. Almost every Aboriginal group has members who oppose resource development, to a greater or lesser degree. Many worry that the Aborig- inal to corporate relationship absolved provincial and federal governments from their duty to be engaged with Indigenous peoples and the application of their rights to resources. e secrecy involved with many IBAs—with both the community leadership and the companies agreeing to keep the terms and conditions of the development plans conªdential, ostensibly for reasons of competitiveness and future negotiations—has been a serious bone of contention. Moreover, the complexity of some of the agreements and the di©culties inherent in monitoring and enforcing the accords, particularly if the property in question is transferred to another development ªrm, create signiªcant governance and political challenges for the Aboriginal communities. ese agreements are one strategy for Indigenous-corporate engagement, and these are not inevitably the only e¤ective means of determining how Aboriginal communities engaged with the private sector in the development process. Analysts of the growing use of IBAs are quite uniform in seeing the process as absolving provincial and federal governments of their legal responsibilities related to development. e private sector, faced with government reluctance to get involved in speciªc projects, stepped in to the IBA process for the simple reason that their development projects would stall otherwise. e broader question of government responsibility for resource engagement, addressed in part through the spread of resource revenue strategies, remains unresolved and a matter of contention. Where governments (particularly in areas covered by modern treaties, like the Yukon, Northwest Territories [NWT], and Nunavut) have established resource revenue sharing, IBAs become an addition to, rather than a replacement for, government involvement, a situation that holds in both Alberta and Saskatchewan. e open question of government responsibility for project-speciªc engagement remains to be dealt with. ere are other signiªcant questions. IBAs often include millions of dollars in valuable considerations (discussed below). Some Aboriginal groups have the political and internal capacity to deal e¤ectively with the negotiations with what are often large multinational corporations. If not, they have trusted consultants and advisors who can assist them with the work. Other communities, particularly remote, small, and isolated settlements, have neither the internal expertise N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY ÄÅÂ nor experience with external consultants. Given the scale and importance of the agreements, this can lead to a serious professional imbalance in negotiating ability or professional background. Enforcement of the terms of these agreements to date has focused largely on local monitoring—with some companies being excellent at providing public (i.e., to the Aboriginal people) reports on their progress in meeting agreed-upon targets. In other instances, particularly following the transfer of ownership from the initial developer to a larger mining operator, it is much harder to ensure that the original terms—and the spirit of the initial agreement—are maintained. Aboriginal communities can resort to the courts to uphold the agreement, but many of the terms, such as Aboriginal employment, are complicated to assess and di©cult to implement, resulting in instances where good faith corporate e¤orts are not matched by established targets. Furthermore, IBAs are designed to address economic priorities, particularly infrastructure, business development, and employment. ese clear and legitimate objectives are often at odds with other, equally important Aboriginal priorities, such as language and cultural retention, improvement of reserve conditions, and traditional harvesting activities. It is up to the Aboriginal governments to decide which of their priorities, especially when these are competing, take precedence within the community. IBAs are a relatively new part of the Canadian Aboriginal-government- corporate landscape. While there is no doubt that the IBAs represent a substantial improvement over the historical pattern of neglecting Aboriginal interests, it is not yet clear how the agreements work for the Aboriginal party. For example, many ªrms are close to meeting regional Aboriginal employment targets. But current research shows that between and percent of regionally employed workers leave the region for towns and cities, while maintaining their jobs with the company and joining the ranks of ¢y-in, ¢y-out workers. Compa- nies have generally met their ªnancial contribution commitments (occasionally struggling to do so when market conditions change) and are doing reasonably well on employment targets. When they fall short on the latter, it is often due as much to challenges with the local workforce and educational regimes as corporate e¤ort. ere are positive and constructive examples of IBAs, from the diamond mines in the NWT and Nunavut to Voisey Bay in Labrador, Tahltan First Nations’ projects in northwest British Columbia (BC), and Cameco and Areva operations in northern Saskatchewan. In these instances, and in contrast to the formidable challenges facing De Beers in its relationship with Attawapiskat and ÄÅÄ K EN C OATES AND C ARIN H OLROYD the First Nations in the “Ring of Fire” development zone in northern Ontario, Aboriginal communities and corporations report positively on the relationship, show ¢exibility in the application of the agreements, adjust to the cultural needs and interests of Indigenous peoples, and look to long-term improvement in socioeconomic and cultural outcomes. is remains, however, a key area for future research, particularly to determine if the signing of these agreements produces substantial and sustainable outcomes for Aboriginal communities and constructive corporate-government-Indigenous relationships. IBAs do not protect Aboriginal communities from the vicissitudes of the commodity sector. First Nations, as in the Ring of Fire in Ontario, devoted considerable e¤ort to developing an agreement with resource companies, particularly Cli¤ Resources, only to have the projects delayed and then canceled. Indeed, the IBAs tie the Aboriginal communities to the fortunes of individual ªrms and global demand and prices. As many Aboriginal communities realize, IBAs are not a quick or secure solution to the local economic and employment challenges and, instead, ensure that the Indigenous peoples are connected to the well-being of the natural resources economy. ere are, by various counts, more than IBAs between Canadian resource companies and Aboriginal communities or governments.· ere are, equally, hundreds of joint venture operations, many procurement and employment deals involving Indigenous communities, and hundreds of negotiations currently underway. While attention has focused on spectacular failures—the Ring of Fire controversy in Ontario and the Enbridge Northern Gateway Pipeline project across northern British Columbia (Coates and Crowley ; McKie ; Koven )—analysts are increasingly intrigued by the potential of IBAs to help transform Aboriginal nations. Many of the deals run into the millions of dollars and can include outcomes such as skills training, preferential hiring for Aboriginal and regional residents (particularly in the North), preferential contracts to Aboriginal ªrms, and various community beneªts. IBAs lack the proªle and attention-grabbing nature of the protests. Coverage of the controversy surrounding the Ring of Fire is far more extensive than that given to the extensive cooperation between Voisey’s Bay and the Innu in Labrador (Cox ; Newfoundland Labrador Government ).¸ e former involves height- ened Indigenous expectations, extensive and controversial negotiations, and the collapse of development plans; the latter, in Labrador, includes extensive training and employment, speciªc commitments to support Indigenous cultural activities and land use priorities, and several mutually beneªcial procurement and service FIGURE 10.1. Resource company collaboration agreements with Aboriginal communities, by project status, . Natural Resources Canada, n.d. Map by Petr Baranovskiy.

FIGURE 10.2. Resource company collaboration agreements with Aboriginal communities, by agreement type, . Natural Resources Canada, n.d. Map by Petr Baranovskiy. ÄÅ¼ K EN C OATES AND C ARIN H OLROYD agreements, and the Diavik Mine’s comprehensive and long-term collaborations with Aboriginal groups in the NWT (Missens, Dana, and Anderson ; see also Rio Tinto ). e negotiation and impact of these agreements, in turn, will re¢ect the intersection of political structures, including modern treaty agreements, self-government agreements, localized political arrangements, and relationships with mining companies. e experience of Indigenous communities over the past decade has shown that they can, with or without the beneªts of modern treaties and self-government agreements, negotiate favorable IBAs, collaboration accords, joint ventures, and other partnerships with resource companies. In signiªcant and sustained ways, the foundations of Canada’s relationships with Aboriginal people are being recast through resource agreements. As Douglas Sanderson and Bradon Willms illustrate in their chapter in this book, Aboriginal groups can negotiate clauses in IBAs that give preference to their own commercial codes (such as arbitration clauses). ese codes enhance the potential for Indigenous values to shape development in their territories. e courts have expanded the jurisdiction of Aboriginal peoples in Canada, extending their rights and elaborating on the duties owed by the Crown to First Nations. But while these rights and duties are a catalyst for Aboriginal participation, they cannot alone achieve all the objectives of Aboriginal people. Governance remains of fundamental importance to the socioeconomic and cultural vitality of Aboriginal communities. IBAs are one of the contemporary factors that are driving innovations in Indigenous governance.

ABORIGINAL PARTICIPATION IN RESOURCE DEVELOPMENT

Observers looking for clear patterns in Indigenous approaches to participation in resource development will be perplexed by the diversity of experiences and relationships (Coates and Crowley ). It is vital to remember that the variables in this regard relate to the multiple players involved in each resource project. In the following sections we discuss some of the major elements in the relationship matrix (each of which, of course, has several subelements).

ROBUST GOVERNANCE

One of the key elements is the nature of the Indigenous community or government, with a particular emphasis on human capacity (and local skills and N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY ÄÅ½ educational attainment). For example, the James Bay Cree have, since their mid- s land claims settlement, developed considerable commercial and entrepreneurial expertise, have a network of professional specialists to draw upon, and have a formidable reputation as negotiators. Attawapiskat, in contrast, has had well-publicized administrative and governance di©culties highlighted by Chief Teresa Spence’s prolonged fast in Ottawa, and has struggled to capitalize on a multimillion-dollar impact and beneªt agreement with De Beers. Attawapiskat, which operates under age-old and colonial Indian Act rules, stands in stark contrast to the James Bay Cree, who have much greater political autonomy and self-governance systems under a land claims agreement (Coates a). e Harvard Project speaks directly to the challenges being faced by communities like Attawapiskat, deªning sovereignty or self-rule as a foundational element in e¤ective governance, as well as the cultural match between institutions and Indigenous values and the e¤ectiveness of administration (Cornell and Kalt ).

LOCAL ATTITUDES TO ECONOMIC ACTIVITY

Indigenous leadership and, speciªcally, its orientation in favor of or opposed to development, has been crucial in shaping the nature of economic engagement. One of the best examples here is the Tahltan, in Northwest British Columbia. eir political leadership was eager for substantial Indigenous engagement in resource development and pushed hard for collaboration agreements. When community elders protested—to the point of occupying the council o©ces—the elected leadership persisted and produced some e¤ective long-term arrangements with the resource sector. Despite the con¢ict, it is important to note that families play a crucial role in Tahltan political culture, which uses a customary election code, providing what the Harvard Project refers to as cultural legitimacy, a foundation for good governance (Davis ).

TRUST

History matters to Indigenous people. e receptiveness to new business proposals often re¢ects the communities’ historical experiences with major resource development projects. Poor historical experience colors community perceptions on contemporary opportunities. e Kaska First Nations of southeast Yukon and north central British Columbia are actively engaged in negotiations with resource companies. Past di©culties, particularly with the community of Ross ÄÅ¾ K EN C OATES AND C ARIN H OLROYD

River and the Cyprus Anvil mine at Faro, caused considerable disruption among the Kaska and has led them to approach new opportunities with great caution and concern for the long-term impacts and beneªts (INAC ; Morin ).º

BUSINESS EXPERIENCE

A key predictor of economic engagement relations is the communities’ commercial and business capabilities, speciªcally their available skills and resources to capitalize on business opportunities. e First Nation at La Ronge, in north central Saskatchewan, has long been an active commercial center. e La Ronge Indian Band, one of the largest First Nations communities in Canada, has a history of commercial engagement that goes back to the eighteenth-century fur trade. ey have capitalized, through the Kitsaki Management Limited Part- nership, on opportunities in the northern mining sector and run close to a dozen companies associated with the regional resource economy.» In this instance, the commercial organization, which arose out of an e¤ective partnership with regional mining companies, has been an important element in encouraging e¤ective governance throughout central Saskatchewan.

ENVIRONMENTAL RISK

Indigenous communities are a¤ected strongly by the perceived environmental risks associated with a resource project, including the availability of an acceptable management and remediation plan. e best contemporary example of this process relates to the now defunct Northern Gateway Pipeline, which would have carried unreªned bitumen from the oil sands in Alberta to tidewater near Prince Rupert or Kitimat in British Columbia. First Nations concerns about the safety of the project, particularly in terms of potential leaks at river crossings or a possible grounding of a tanker o¤ the West Coast, have stalled the multibillion- dollar project (Coates and Crowley ; Eyford ; Gunton and Broadbent ; see also West Coast Environmental Law ).

GOVERNMENT POLICY

Context also matters. e attitudes of policy makers toward resource development and the resulting policy environment is crucial in terms of encouraging or discouraging such activity. e former federal conservative government had N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY ÄÅ¿ placed a high priority on natural resources development, urging regional governments and Aboriginal communities to pursue substantial projects. When Canada held the chair of the Arctic Council ( –), the Canadian ambassador to the council, Leona Aglukkaq, pursued strongly harry prodevelopment policy that supported Nunavut’s attempts to jump-start several substantial resource developments (English ; Foreign A¤airs, Trade and Development Canada ). roughout the ªrst decades of the twenty-ªrst century, most provincial and territorial governments have been very active in the promotion of resource projects but have been less successful in responding to Aboriginal politics and governance systems. e nuances of Canadian federalism have been an impedi- ment to systematic recognition of Aboriginal rights and approaches to resource development. e liberal government of Prime Minister Justin Trudeau, after the federal election, has erected signiªcant barriers to resource development generally, often generating considerable opposition from Indigenous communities in the process.

EQUITY

Indigenous communities are eager to gain a better share of the returns from development. ey are keen, in particular, to expand resource revenue sharing arrangements between governments and Aboriginal communities. For Aborig- inal communities, the opportunity to capitalize on a fair return from natural resources development is key to their enthusiasm for such understandings. e government of British Columbia, long resistant to recognizing Aboriginal rights and title, made an abrupt shift in , when the province agreed to provide, on a project-by-project basis, resource revenue sharing arrangements as a means of securing greater Aboriginal support for the sector.

NATURE OF THE RESOURCE

Companies that are developing high-grade deposits over many years will need to focus on matters such as social license and community engagement. Resource development is notoriously variable, responding to everything from global price and demand changes to technical challenges at the development sites and environmental and political shifts. e nature of the deposits themselves is a crucial factor in the nature of relationships with Aboriginal communities and governments. Small and short-term gold properties, including several in northern ÄÅÀ K EN C OATES AND C ARIN H OLROYD

Ontario and British Columbia, have comparatively short lives (ªve to ten years in full operation). e nature of investments and community collaborations is dramatically di¤erent from, say, the twenty-year Ba©nland iron ore property operating with substantial Inuit engagement at Mary River on Ba©n Island.¼ e larger diamond mines, starting with Ekati (Dominion Diamond) and Dia- vik (Rio Tinto), likewise provide substantial continuity and decent returns to nearby communities over the reasonably long life span of the projects. Collapses of the magnitude experienced in the iron ore mines in Labrador in – worry Aboriginal people who are attempting to build long-term economic stability based on natural resources. e more stable and multigenerational uranium mines in northern Saskatchewan, in contrast, provide the Dene, Cree, and Métis communities of the region with a much more solid foundation for economic and social planning, and encourage more sustained participation in the resource sector (Sandlos and Keeling ; Cater and Keeling ; Boutet, Keeling, and Sandlos ; LeClerc and Keeling ).

SOCIAL LICENSE

It is also increasingly clear that the nature of the ªrm involved and the project in¢uence the quality of social licence or community support for the project (Crowley and Sinclair ). Two of the best examples of the role of the companies in encouraging Aboriginal participation include Cameco, which operates uranium mines in northern Saskatchewan and has a long history of large-scale, integrated collaborations with Indigenous communities; and the oil sands companies active in northern Alberta.½ While some groups oppose oil sands development, particularly from the Fort Chipewyan, the companies actually have extensive partnerships with First Nations communities, including Fort Chipewyan. ese companies also o¤er Aboriginal skills, training, and employment programs, and promote substantial Indigenous participation in environmental monitoring and remediation.¾ e point of this list is simple: the ability to achieve a viable, mutually ben- eªcial resource relationship with Aboriginal communities is determined by a wide variety of factors, only one of which is the attitude of community members toward development. Indeed, given the complex forces weighing on the Canadian development process, and the generally unfavorable experience of Aboriginal communities with the pre- resource frontier, it is surprising that so many agreements have been concluded (see ªgures . and .). is, in FIGURE 10.3. Agreements signed between mining companies and Aboriginal communities or governments, – . Natural Resources Canada, n.d.

FIGURE 10.4. Distribution of active agreements across the provinces and territories of Canada as of December . Natural Resources Canada, n.d. Ä¼Ã K EN C OATES AND C ARIN H OLROYD turn, is a testament to the e¤ectiveness of local and regional Aboriginal governments, changing regulatory and legal environment, the openness of Aboriginal communities to constructive relationships with resource companies, and the willingness of the resource companies to seek and secure appropriate arrangements with Aboriginal communities and governments. Given the complexities of the resource development environments, it is far from surprising that there are substantial variations in Aboriginal engagement with the resource economy in Canada. Twenty years ago, con¢ict and confron- tation were more common. Resource companies, armed with appropriate regulatory and environmental permits, proceeded with developments, even over the opposition of local Aboriginal groups. Before the Haida and Taku River decisions in , which established the Crown’s “duty to consult and accommodate” Aboriginal peoples for activities impacting their rights, Aboriginal groups relied on moral suasion and the nonlegislative requirement for a “social license” for the project to proceed (Newman ). Signiªcant con¢icts, particularly in northern British Columbia, made it clear that Aboriginal interests had to be accommodated if development was to move forward (Land ). Companies responded, even with legal or political concerns expressed by Indigenous communities, particularly in cases of high-value properties, like the Diavik diamond mine. Con¢ict has not disappeared, as the stando¤s in New Brunswick over fracking and shale gas development in – demonstrated, and extended Aboriginal resistance to the Ring of Fire projects in northern Ontario brought home. e duty to consult and accommodate was not, on its own, su©cient to bring Aboriginal groups to the negotiating table. At the same time, the negotiation of hundreds of IBAs makes it clear that Aboriginal people are far from uniformly opposed to resource development. Even Attawapiskat, a northern Ontario community known for its confron- tational relationships with the government of Canada, signed a multiyear agreement with DeBeers mining company (Barrera ). Aboriginal peoples from Ba©n Island to the Yukon, and from Labrador to British Columbia, have worked with mining companies and governments to negotiate mutually agreeable processes for resource development. While con¢ict is real, collaboration is commonplace in the relationship between Indigenous peoples, resource companies, and governments. e Voisey’s Bay partnership with Vale, for example, has been a cornerstone of Innu and Inuit regional economic development and has been marked by a high level of cooperation, enabling a high-quality mine to operate successfully (Fugmann ). is is not to say that all Aboriginal N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY Ä¼Â communities are equally enthusiastic about development but rather illustrates the variability of Aboriginal responses. Engagement with resource companies and even IBAs are not complete indicators that Aboriginal communities have fully embraced resource development. Community visions are often strong and public, as members balance the prospect of jobs and local beneªts, and the inevitability of environmental change—potentially substantial in nature—and social disruptions. Participating in resource development creates the possibility for employment and Aboriginal business creation. Rejecting such activities can continue economic marginalization and community poverty, likely spurring continued outmigration from communities. But passing on the prospect of engaging with resource development may also preserve key cultural values and traditional activities, and may even provide more stable and reliable economic activity in other, nonintrusive sectors. In other words, opting out of a resource project does not mean that the community is opposed to business development or broader economic engagement. e tense debates, which occur in virtually every community (Aboriginal and non-Aboriginal) entering into negotiations with resource companies, can leave sharp divisions in the local population. Aboriginal communities in remote locations, where the vast majority of the mines and other resource activities are based, recognize that there are few if any other market economy opportunities in their region. E¤ective governance plays a crucial role in these collective deliberation processes, for the involvement of a strong Aboriginal administration with substantial community engagement legitimates the trade-o¤s that are necessary in accommodations with the resource sector (Nikolakis and Nelson ; Niko- lakis, Akter, and Nelson ). is is clearly the case with the Kaska First Nations, who are proceeding cautiously in their discussions with industry; they are formulating a Kaska Resource Law to deªne their engagement and have been able to understand, in full, the potentially positive and negative aspects of resource development (Kaska Dena Council ). e Kaska, to a degree, are unusual, in that they are integrating resource development systems into their governance and have developed strategies for sharing resource revenues among member communities. is helps explain, in turn, the strong support of the Inuvialuit (Mackenzie Delta and Western Arctic) and many of the Dene and Métis people of the Mackenzie Valley for a natural gas pipeline, a project that they strongly opposed in the s when Aboriginal people had little control over development plans. For these communities in the Mackenzie Valley, the Ä¼Ä K EN C OATES AND C ARIN H OLROYD returns, oversight, and engagement they would have over the contemporary project, which potentially included percent Aboriginal equity ownership, were deemed su©cient by most to o¤set the potential downsides from development (INAC , ; AANDC ). Aboriginal engagement with the resource sector is uncertain in almost all cases and is approached cautiously by people who see few other opportunities for economic engagement beyond the development of natural resources. An additional element in the decision-making dynamic has been the unexpected emergence of resource revenue sharing as a feature in provincial- territorial resource management. ere is no uniform pattern across the country—Alberta and Saskatchewan remain outside the system, Ontario and Manitoba are studying the idea, as are the Maritime Provinces, with solid examples in place in Labrador, northern Quebec, British Columbia, and the three territories. Governments have quickly come to appreciate the symbolic and ªnancial value of sharing government revenue with Aboriginal com - munities. In Saskatoon and with the New Democratic Party (NDP) elected in Alberta in , the provincial governments make clear that Aboriginal peoples should beneªt from resource development, even if they do not get their own source revenue in the form of a portion of resource revenues. e availability of resource revenues, typically as a percentage (ªxed or negotiated) of total provincial/territorial resource revenues, provides an additional incentive for Aboriginal peoples to become involved in the sector. e comparison with the not-so-distant past, when almost the entire sum of revenue from resource projects passed out of the immediate vicinity and into the hands of corporations and governments, is well understood by Indigenous leaders. Knowing that a signiªcant sum, ranging from a few million dollars for the smaller projects to well over a billion dollars for the largest, long-term initiatives (such as the Mary River property in Nunavut), will come directly to Aboriginal governments and development corporations as their own source revenues has made it much easier for Aboriginal people to contemplate and accept collaborations (Coates b).

VARIATIONS IN ABORIGINAL GOVERNANCE

Aboriginal communities govern themselves in diverse ways, with the structure, values, and processes of Indigenous governance and administration in¢uencing N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY Ä¼Å relations with the resource sector. e governance structures employed by Aboriginal Canadians include the dimensions we describe in the following sections.

INDIAN ACT GOVERNMENTS

Most Aboriginal communities in Canada are governed under the provisions of the federal government’s Indian Act and remain in in¢exible and often di©cult arrangements with Aboriginal A¤airs and Northern Development Canada. e Indian Act, passed initially in and amended numerous times since then, established the elected chief and council band system and formalized First Nations to government relations. e Indian Act was deliberately paternalistic, treating First Nations as wards of the state and requiring extensive—even into the twenty-ªrst century—approval processes for band council decisions (McNeil ; Frideres ).

NONINDIAN ACT GOVERNMENTS

Several dozen First Nations in Canada have opted out of the Indian Act, primarily through the negotiation of modern treaties, and another ªfty or so communities are at various stages of getting out from under the Indian Act. Signatories of modern treaties are, by way of these self-government agreements, removed from the Indian Act provisions. As described by William Nikolakis in his chapter in this volume, these governments often have explicit recognition of traditional governance structures, including hereditary leaders or family and clan systems, and have more ¢exibility in managing their own a¤airs. is autonomy is particularly important over commercially sensitive matters such as control of lands, community funds, and decision-making processes (Coates ).

CHIEF AND COUNCIL GOVERNANCE

Most Aboriginal communities in Canada are governed by elected chief and council systems, with regular voting by members (on- and o¤-reservation) for their political leaders. Communities vary dramatically in their inclusion of o¤-reservation members, from inclusive systems of engagement to signif- icant restrictions on o¤-reservation voting, even after the Corbiere decision, Ä¼¼ K EN C OATES AND C ARIN H OLROYD which legally required the chief and council to take o¤-reservation people into their deliberations.¿ In the high-proªle case of Attawapiskat, for example, o¤-reservation members can participate in elections but have to return to the community to vote. e inclusion of o¤-reservation people, half or more of the total population in many instances, has potential ramiªcations for community management of resources, as members balance economic returns, community beneªts, and environmental questions.

TRADITIONAL GOVERNANCE

ere are a signiªcant number of Aboriginal communities, inside and outside treaty, and inside and outside the Indian Act, that operate according to traditional Indigenous structures and processes. In communities like Nisga’a (Northwest British Columbia) and Teslin (Southern Yukon), First Nations have reintroduced traditional governance systems and processes. e Nisga’a Lisims, as the Nisga’a describe it, are

a modern, forward-thinking administration based on traditional culture and values. Nisga’a Government has the authority to pass laws on a broad range of matters. At the same time, Nisga’a lawmaking authority is concurrent with federal and provincial authority. Designed to assure democracy, transparency, and accountability, Nisga’a Government is comprised of NLG [Nisga’a Lisims Government], the four Nisga’a Village Governments, and three Urban Locals.Â

In some communities, elders councils serve a Senate-like function, providing a secondary review of major decisions. Among the Maa-nulth, hereditary leaders have a speciªc place in governance—the Ha’with—that serves in an advisory capacity to government (described in more detail by Nikolakis in this volume). eir system protects democratic rights while providing for appropriate and substantial impact from traditional leaders.·Ã Communities that have opted to reintroduce traditional governance arrangements typically have extensive consultative processes, a substantial reliance on elders, and clan or community- based structures. TABLE .. Representative Aboriginal governance arrangements

INDIGENOUS TREATY ARRANGEMENTS GOVERNANCE ABORIGINAL ECONOMIC GOVERNANCE OF AEDC LOCATION COMMUNITY SYSTEM DEVELOPMENT CORP

Lac La Ronge Indian Historical treaty Chief and council Kitsaki Management Limited Chief and council of Lac La N. Sask. Band Partnership Ronge Indian Band Nisga’a Modern treaty Self- governing, Nisga’a Commercial Group of Arms- length NW BC blended traditional Companies White Cap Dakota Non- treaty Chief and council Whitecap Development Integrated Central Sask. First Nation Corporation Nunavut Nunavut Agreement Public government Nunavut Development Territorial corporation of Nunavut Corporation government of Nunavut St. Mary’s First 18th century peace and Chief and council St. Mary’s Economic St. Mary’s First Nation New Nation friendship agreement Development Corporation Brunswick Selkirk First Nation, Modern treaty, Yukon Self- governing, chief Selkirk Development Corp Selkirk First Nation Yukon Council of Yukon Devolution (11 Yukon First and council First Nations Nations under the Umbrella Final Agreement) Norway House Cree Historical treaty Chief and council Norway House Community Chief and council of Norway Manitoba Nation Development Corporation House Cree Nation Flying Post First Historical treaty Chief and council Flying Post First Nation Economic development o©cer Ontario Nation economic development of Flying Post First Nation Cree Nation of Non- treaty Chief and council Eeyou Economic Group/ Economic development o©cer Quebec Nemaska CFDC Inc. from Cree First Nation of Nemaska Source: Aboriginal Affairs and Northern Development Canada, First Nation Profiles, http:// fnpim -cippn .aandc -aadnc .gc .ca/index -eng .asp. Ä¼¾ K EN C OATES AND C ARIN H OLROYD

MANAGEMENT OF ABORIGINAL RESOURCES ENGAGEMENTS

Indigenous communities also vary signiªcantly in how they manage their participation in the resource sector. At one extreme, the people of Nunavut manage the resource sector through the Nunavut public government ( percent of the population is Inuit, which ensures that Indigenous interests are well considered). e Nunavut Development Corporation handles the commercial relationships and the funds received by the Indigenous peoples of Nunavut.·· Other Aborigi- nal communities, in contrast, integrate the relationships with commercial interests into the regular operations of the Indigenous governments, an arrangement that has worked well for some and caused enormous di©culties for others. Some of the engagement is managed through local or community-owned enterprises or regionally owned enterprises. Over the past twenty years, Aboriginal economic development corporations (AEDCs) have emerged as the major organizational actor in the natural resources sector. e AEDCs act, in the main, as a combination of a holding company—managing land claim payments, treaty land entitlements, corporate contributions, and/or resource revenues—and an operator of Aboriginal companies. Several of the most successful, none with extensive engagements with natural resources developments, are Osoyoos First Nation, Squamish First Nation, Westbank First Nation (all in British Columbia), White Cap First Nation (Saskatchewan), and Membertou First Nation (Nova Scotia). ·¸ It is not uncommon for an AEDC, like Kitsaki, to manage a dozen or more independent companies. In most instances, the AEDC ªrms were started as joint ventures or as companies with preferential arrangements with the regional resource company or companies. Over time, and building o¤ the success of the initial ªrms, the AEDCs have often started other companies, not related to the resource sector but contributing nonetheless to the economic and social well-being of their host communities. AEDCs, in turn, are operated in di¤erent ways: through direct oversight by the selected chief and council or in an arm’s length manner, through a separate and independent corporate structure. TABLE .. Management of Aboriginal economic development corporations

ïØââßÜ ðØÙÜ ñØ×æâ ÔÖâØÞÙ: ïØââßÜ ðØÙÜ òáæØÙÜææ óÜôÜßÞõöÜÙâæ ïð “ e company, owned by the Little Pine First Nation, has been established with the goal of enhancing the self- sustenance of the Nation through economic development as well as by making available work opportunities for its members. e company has taken a business- ªrst approach to its development in the structure of its board of directors and is committed to empowering the business by separating politics from business decisions.”

÷ÞÞæÜ ø×ÜÜ ñØ×æâ ÔÖâØÞÙ: ÷ÞÞæÜ òÖÙÚ óÜôÜßÞõöÜÙâ øÞ×õÞ×ÖâØÞÙ “ e program operates under the auspices of the Moose Cree First Nation Economic Development Committee and the said committee is directly accountable to the Moose Cree First Nation Council. Currently, the Committee consists of seven members; three are members of MCFN Council and four are from the general membership.”

ðÜÕáØæ ñØ×æâ ÔÖâØÞÙ: ðÜÕáØæ óÜôÜßÞõöÜÙâ øÞ×õÞ×ÖâØÞÙ “Peguis caters to its economic sustainability through the Peguis Development Corporation which is responsible for promoting, planning, and developing Peguis First Nation with a sound economic development strategy. ere are many services o¤ered to members of Peguis that assists both individuals and the community. Health programs supports prevention, screening and treatment and case management initiatives that are community based and culturally appropriate. ese services are located within the Peguis Health Centre and operate through departments such as the Peguis Home and Community Care, Long Term Care, Community Health and Community Wellness programs.”

ùÖ×ù×Þææ âÖÕØæã úØ×æâ ÙÖâØÞÙ: ùÖ×ù×Þææ âÖÕØæã öÖÙÖÕÜöÜÙâ ùÞ×õÞ×ÖâØÞÙ “As a self- governing ªrst nation with complete control over its own destiny, CTFN is looking for ways to advance the business potential that exists in the Carcross region. e CTMC is the economic development branch of CTFN and therefore acts on behalf of the CTFN and its citizens in the areas of business development and economic sustainability.”

Sources: Quotations are from the respective websites of the nations: Little Pine Business Developments, https:// www .eaglefeathernews .com/ business/ border -tribal -council -and -siga -break -ground -on -lloydminster -casino -development; Moose Cree First Nation, http:// www .moosecree .com/ departments/ economicdevelopment _overview .html; Lakehead University, Peguis First Nation, http:// eolfn .lakeheadu .ca/ the -communities/ peguis -first -nation; Invest Carcross, http:// www .investcarcross .ca/ about/ about _us .html, all accessed March 9, 2019. Ä¼À K EN C OATES AND C ARIN H OLROYD

WHAT IS AN IBA?

It will be many years before it is possible to describe the shape and complexity of the IBAs in a comprehensive manner. For commercial and political reasons, most of the agreements are conªdential, at least in part. ese arrangements can be found across the country, ranging from exploration agreements to those covering reclamation e¤orts. It is axiomatic that the presence or absence of an agreement relates to resource activities and not to the existence of a First Nation. What is clear is that these arrangements have emerged as major elements in the twenty-ªrst-century economy of northern regions and Aboriginal communities across the country. e agreements, often presented to the public as major accords with a single and often substantial sum associated, are actually quite diverse. ey typically include cash payments, in the form of a community beneªt fund. Public attention typically focuses on the size of the community beneªt ªnancial arrangements. e Cameco agreements with northern Saskatchewan communities get a lot of attention for the announced ªnancial quantum—some CÇ million over ten years for Pinehouse and Ç million for English River—and much less for the more speciªc elements in the agreements. In both of these cases, the total sum incorporated much more than a ªnancial transfer, a fact that was obscured in the public reporting. e funds are often attached to a particular community project, such as a skating rink or improvement to a high school or community facility. ere are also company commitments to skills, training, and employment, often including speciªc targets for the recruitment and retention of regional Aboriginal employees. In most cases, there are few local residents able to move into middle and upper management or to assume more technical posts. e focus, then, is typically on entry-level and low-skill work, with company programs and commitments to training and upgrading Aboriginal workers to assume more managerial and remunerative positions. Community members often place particular priority on this aspect of the development process, hoping that work with the company will provide employment and personal ªnancial well-being. Ironically, research done in the territorial north of Canada shows that – percent of the Aboriginal people hired under these arrangements subsequently relocated away from the community (Finnegan and Jacobs ). Among Cameco’s workforce in northern Saskatchewan, close to percent of northern-hired workers left the region within two years but remained with the ªrm as employees. In a surprisingly important element, the agreements include preferential arrangements for Aboriginal businesses, which, if they meet cost and quality N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY Ä¼Á standards, are assured of access to company supply and service contracts. Oppor- tunities for joint ventures with the main company or related ªrms are also commonplace. In many instances, Aboriginal communities and companies are given preferential access to service and supply contracts, with the provision that the contracts have to be competitive on price and quality. In some instances, as with the Diavik and Etaki diamond mines in the Northwest Territories, the companies worked with Aboriginal communities to create joint venture ªrms, providing the Aboriginal partners with professional expertise, training, and other support, until such time that the community forms could assume control of the operation. ese business operations have, over time, taken on much greater prominence in the sector, producing hundreds of companies, providing thousands of jobs, and giving Aboriginal communities a much greater return from resource development than in the past. Importantly, the Kitsaki Management Corporation in Saskatchewan, the James Bay Cree in northern Quebec, and the Fort McKay First Nation group of companies in the oil sands are among the best examples of Aboriginal communities that have established a major commercial presence in the resource sector.·º As these relationships evolve, Aboriginal ªrms have expanded their operations from their initial engagement with services and preparatory work to professional services, environmental assessment and evaluation, and the actual mining operations. Public commentaries on IBAs typically make limited discussion of this aspect of the accords. Over the past ten years, these provisions have proven to be signiªcant, sparking Aboriginal entrepreneurship and company formation and supporting the emergence of Aboriginal economic development corporations as major commercial interests across Canada.

FIGURE 10.5. Beneªts agreements by attribute. Northern Alberta Development Coun- cil . TABLE .. Representative Aboriginal resource agreements

AGREEMENT TITLE COMPANY / FINANCIAL COMMITMENT EMPLOYMENT BUSINESS ARRANGEMENTS YEAR INDIGENOUS GROUP COMMITMENT SIGNED

Apple Bay Electra Gold Ltd. and Royalty payments— $1.00 for Employment and Requires company to provide 2003 Quarry: Mining Quatsino First Nation each metric ton of production training services of community Participation and (BC) development consultant Royalty Agreement Kwagis Power Brookªeld Power and Revenue sharing Employment and Joint venture for 40 megawatt 2006 Ltd., Kokish River, Namgis First Nation training; commitment micro hydro- project Limited Partnership (BC) to working with First Nations and local stakeholders Voisey’s Bay Newfoundland Revenue sharing: the Preferential employment Joint venture arrangements 2002 Environmental Crown, federal Crown, province shall pay to the Innu and contracting and Management and Labrador Inuit government an amount equal training Agreement and Association and the to 5 percent of any revenue IBAs Innu Nation (NL) received by the province from the Voisey’s Bay Project; funding for Labrador Inuit and Innu Nation participation provided by provincial and federal Crown is $450,000 (max.) annually AGREEMENT TITLE COMPANY / FINANCIAL COMMITMENT EMPLOYMENT BUSINESS ARRANGEMENTS YEAR INDIGENOUS GROUP COMMITMENT SIGNED

Victor Project: De Beers Canada and Not available Employment and IBA based on business 2005 Syncrude Oil Sands Attawapiskat First training: De Beers funded opportunities, employment, Impact and Beneªt Nation (ON) an $800,000 training and training Agreement center in Attawapiskat to help prepare for employment at the Victor Mine and additional training facilities Millennium Project Cameco Corp. and Cooperation agreement: direct $600 million in business $600 million in business 2013 English River First payments to the community for contracts and employee contracts and employee wages Nation (SK) education, health, sports, and wages over the next ten over the next 10 years. recreation programs years. NorSask Lake Miller Western and All revenues go to MLTC Hiring priorities for area NorSask owned by MLTC; a 1998 Forest Management Meadow Lake Tribal residents and securing 50/50 joint venture between License Agreement Council (MLTC) (SK) hardwood capacity NorSask and Miller Western; owns harvesting rights and reforestation responsibilities for softwood and hardwood; requires extensive consultation with northern communities TABLE .. continued AGREEMENT TITLE COMPANY / FINANCIAL COMMITMENT EMPLOYMENT BUSINESS ARRANGEMENTS YEAR INDIGENOUS GROUP COMMITMENT SIGNED

Nunavut Land BC and Canada and Revenue sharing: $1.15 billion Employment training: Not available 1993 Claims Agreement Inuit (NU) capital transfer payments to $13 million in a training the Inuit over fourteen years; trust fund to work in a share of federal government oil, gas, and mineral royalties (oil, gas, and mineral development development on Crown lands); some $1.17 billion over ªfteen years was compensation for Crown lands that are not Inuit property; 50 percent of the ªrst $2 million royalties and 5 percent of additional royalties Siksika Golder Associates and First Nations owned Golder supplies Golder is a ªrm of anthro- 2001 Environmental Ltd. Siksika (AB) professional support to pological and environmental Company / Joint IMG- Golder; priority consultants that is committed Venture for First Nations training to working with First Nations; and employment Siksika Environmental Ltd. is wholly owned and run by Siksika with Golder support; Golder is involved with a project where six companies sponsored traditional land use and knowledge study of north- eastern Alberta AGREEMENT TITLE COMPANY / FINANCIAL COMMITMENT EMPLOYMENT BUSINESS ARRANGEMENTS YEAR INDIGENOUS GROUP COMMITMENT SIGNED

IMG- Golder Golder Associates and Partnership/Joint venture Golder supplies Jointly owned; Inuvialuit 2001 Inuvialuit (NWT) professional support to owners are the majority IMG- Golder; priority for shareholders with Golder Inuit and First Nations holding remaining shares training and employment Ketza River Veris Gold and Kaska Socioeconomic: Yukon- Nevada Training and employ- Not available 2012 First Nation (YU and will provide ªxed and variable ment opportunities BC) payments. available to the local First Nations; some of the payments will be made into a scholarship fund for qualiªed Kaska citizens; the company will hire an Aboriginal liaison o©cer and participate in a management advisory committee to oversee the employment program TABLE .. continued

AGREEMENT TITLE COMPANY / FINANCIAL COMMITMENT EMPLOYMENT BUSINESS ARRANGEMENTS YEAR INDIGENOUS GROUP COMMITMENT SIGNED

Raglan Mine Makivik Corp., Compensation and proªt- Priority in employment Priority in contracts to 1995 Northern Village sharing payments to the beneªt to qualiªed Inuit residing competitive Inuit enterprises Corp. of Kangiqsujuaq, of Salluit, Kangiqsujuaq, and in Salluit and Kangiqsu- for work required during the Northern Village Corp. Nunavik region inhabitants; the juaq, in the region, and mine’s operating phase of Salluit, Nunaturlik package is estimated at $60– to other Nunavik Inuit; a Landholding Corpora- $100 million over the life of the joint committee to over- tion of Kangiqsujuaq, project see training programs. Qaqqalik Nunaturlik Landholding Corpora- tion of Salluit (QC) Joint Keeyask Manitoba Hydro and e MOU provides for federal/ Employment and Up to 25 percent ownership 2009/12 Development Keeyask Cree Nations provincial/First Nation training contracting preferences for the Keeyask Cree Nations Agreement (Tataskweyak Cree funding of up to $45 million Nation, War Lake First Nation, Fox Lake Cree Nation, and York Factory First Nation) (MB) Source: Woodward and Company 2013. N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY Ä½½

THE INTERSECTION OF ABORIGINAL¢ GOVERNMENT AND ABORIGINAL GOVERNANCE ARRANGEMENTS AND RESOURCE DEVELOPMENT COLLABORATION

Participation in natural resources development projects is not tied as ªrmly as might be expected to Aboriginal-government relationships, or to the nature of Indigenous governance itself. Indeed, Aboriginal groups operating in a wide variety of political and legal contexts have forged workable arrangements with corporations and governments. Further, Indigenous communities governed in many di¤erent ways have been able to develop local support for participation in resource development and to manage the subsequent legal and commercial relationships. ere does not, at this juncture, appear to be any direct relationship between governance structures and decisions to proceed with resource collaborations. As a brief reminder of the variety of circumstances across the country, consider the following Aboriginal-government relationships.

HISTORIC TREATY ARRANGEMENTS

e numbered treaties and the Robinson Treaties (nineteenth-century agreements in what is now Ontario) established the framework for Aboriginal- government relationships in much of the country (Miller ). e situation in the Atlantic region is more ¢uid, as a series of eighteenth-century peace and friendship agreements have been shown to have continuing legal force, particularly through the Marshall decision of (Coates ).·» ey have not yet emerged as the framework for Aboriginal-provincial relations, despite e¤orts to move in this direction by the First Nations.

MODERN TREATY ARRANGEMENTS

Negotiated agreements, commencing with the James Bay settlements of the s, have redeªned Aboriginal-government relationships across much of the Canadian North. ese complex legal agreements, still encountering implementation di©culties, establish clear frameworks for government engagement with Aboriginal peoples, including deªning relationships a¤ecting resource developments in such areas as development approval, project oversight, and postdevelopment remediation (AANDC ). Ä½¾ K EN C OATES AND C ARIN H OLROYD

NONTREATY ARRANGEMENTS

Substantial portions of the country, including most of British Columbia, parts of the Yukon and Northwest Territories, and Newfoundland, are not covered by historical or modern treaties. New agreements, designed to supersede the peace and friendship accords in the Maritime Provinces, are under discussion/negotiation but remain some distance in the future. In these areas, existing federal legislation, speciªcally the Indian Act, deªnes the Aboriginal-government relationships. In these areas, the absence of a formal treaty has created considerable uncertainty, particularly in British Columbia, where Supreme Court decisions have added to the legal and practical power of First Nations (Penikett ).

NUNAVUT: A UNIQUE TERRITORIAL EXAMPLE

e Territory of Nunavut, created in , represents a very di¤erent case. In this large and sparsely populated jurisdiction, with approximately percent of the people being Inuit, the interests of Aboriginal people and the public government of Nunavut overlap. ere is a modern treaty covering this area, and the Nunavut government embodies many principles and values of Indigenous governance. Inuit communities do not have the same kind of political and legal role as do First Nations in other jurisdictions, with the task of negotiating with resource companies falling primarily to the government of Nunavut, the Nunavut Tunngavik Incorporated (NTI, with responsibilities for managing the Nunavut land claim settlement), and the Nunavut Development Corporation (White ).

EARLY OUTCOMES: ABORIGINAL GOVERNMENTS AND RESOURCE DEVELOPMENT

ere is no readily discernable pattern to the relationship between Aborigi- nal governance and resource development. e most successful collaborations are, at this point, tied to prominent and talented Aboriginal leaders who have shown extraordinary commitment in capitalizing on business development opportunities. Some companies—Vale (Voisey’s Bay), Cameco, and Suncor are good examples—have made particular e¤orts to collaborate with Aboriginal communities, to considerable and constructive e¤ect.·¼ e human element, N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY Ä½¿ clearly, is important. As the Harvard Project has shown, there is real value— both economic and political—in separating government and business but not in a simple, one-size-ªts-all manner (Cornell and Kalt ). e nuances of government-business relationships are many, complicated by the small size of Aboriginal communities in Canada, the “politics of smallness” that intensiªes community relations, and capacity issues that typically put political and business responsibilities in the hands of a small number of individuals. While the relationships between Indigenous peoples, resource development, and Aborig- inal governments are comparatively new, a case could be made—somewhat controversially—that Aboriginal participation in the resource economy is the most important platform for Indigenous engagement with the non-Aboriginal people in Canada, re¢ected in the level of activity, involving more than three hundred collaboration agreements, over Aboriginal economic development corporations, and the emergence of several thousand Aboriginally owned businesses in the resource sector. e sector will continue to be the focus for intense community debates, as Aboriginal people struggle to ªnd the right balance between environmental and cultural sustainability and the urgent need for economic development and regional employment opportunities. Indeed, many communities in high activity resource zones—northern Ontario and northern British Columbia—struggle with high political expectations in terms of jobs and local prosperity, often out of step with what is likely to emerge if the planned development projects proceed. On a national scale, the resource sector is a signiªcant employer of Aborig- inal people (particularly in the service and supply areas), so there is reason for optimism. e combination of land claims settlements, treaty land entitlements, and ªnancial returns from large-scale resource projects has provided Aboriginal communities with unprecedented amounts of investment capital, which a growing number of Indigenous governments have converted into long-term assets. is, in turn, has raised expectations that resource development will, indeed, address the systemic poverty that has engulfed most Aboriginal communities across the country. To this point, the business returns are signiªcantly larger than most Canadians realize, but the anticipated transformative impacts on communities remain somewhat elusive. Nonetheless, Indigenous communities and governments continue to look to the sector with cautious optimism. More speciªcally, the e¤ort continues to identify the approaches to resource development that will maximize the return to the people and minimize the disruptive e¤ects on the communities. Ä½À K EN C OATES AND C ARIN H OLROYD

DISCUSSION AND CONCLUSIONS

ose looking to understand the relationship between Aboriginal governance and resource activities have a great deal of work to do. e emergence of consistent and extensive Aboriginal engagement in resource development, combined with the growing proªle of Aboriginal economic development corporations and the complexity of Indigenous governance arrangements, creates a matrix of relationship possibilities that are comparatively new and still in transition. Comments on the nature of this relationship are, by necessity, tentative and remain to be tested through extensive case study and comparative analysis. Sev- eral key observations emerge from contemporary best practice and Aboriginal experience over the past twenty to thirty years. First, while there is considerable evidence, most notably from the Harvard Project in the United States, of the importance of good governance in supporting Aboriginal economic development, it is not clear that legal and political structures are a key determinant of Aboriginal engagement and commercial success. ere is still no ªxed pattern of governance over communities, Aborig- inal economic development corporations, or company-community relationships among Indigenous peoples in Canada. It is important that analysts monitor this topic in the coming years. is said, there is growing evidence that arms-length arrangements, which separate the management of commercial interests and AEDCs from regular governance a¤airs, are useful in supporting Indigenous relationships with the resource sectors. e companies appear to prefer the separation of band governance and commercial a¤airs and worry about working with communities where business and Aboriginal governance are intertwined. But there are a signiªcant number of Indigenous communities that comingle governance and business, and achieve considerable success at both. e challenges that emerge, particularly the uncertainty about political continuity given regular band elections, are signiªcant. at said, the companies work with the corporate and AEDC arrangements established by individual communities. Gaining real separation from Aboriginal business and governance operations is likely to be di©cult. Most Indigenous communities have small populations, with half of the members living o¤-reservation. As a consequence, Aboriginal business and political leadership are closely intertwined in terms of the per- sonalities and interests involved. Political interference with business operations remains a signiªcant issue in many communities. e “politics of smallness,” N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY Ä½Á which refers to the inherent tensions involved with public a¤airs in small communities, e¤ects the management of band councils and commercial interests. is political reality is not unique to Aboriginal a¤airs but rather is commonplace in small population environments. is means, in turn, that issues such as hiring, the letting of contracts, investment decisions, and the like are in¢uenced signiªcantly by personal relationships, con¢icts, and tensions. Aboriginal communities have options when faced with the prospect of natural resources development. ey can protest against the project, using legal and, occasionally, extralegal means to slow or stop development. While this has been done, it remains rare in Canada. ey can pressure governments to withhold the necessary permits and approvals, citing Indigenous interest and/ or cultural values. is approach has worked on several occasions. Alternatively, the communities can participate as direct investors or even owners of resource projects, an approach that has gained adherents in the oil and gas sector (with the connected economic downturn, as occurred with the collapse in energy prices). ere are other ways to participate short of a full IBA, typically through direct discussions with the resource companies and the establishment of procurement, employment, and other arrangements without the comprehensive nature of an IBA. No one approach is automatically better than the others; the priorities and capacities of the economic situation of the Aboriginal community determine which option is most appropriate. In addition, the location and nature of the project (particularly the anticipated duration and quality of the resource play), the anticipated dislocation, and the environmental impact play key roles in determining the best means of proceeding. at so many Aboriginal communities have opted for IBAs suggests that this approach has numerous Aboriginal supporters. If one of the fundamental elements in Aboriginal self-government and autonomy is the opportunity to make choices that best suit their community, then the ability to negotiate an IBA—or not—is clearly an important element in twenty-ªrst-century Aboriginal economic development. at Aboriginal communities are opting for equity positions in resource projects, particularly in the oil and gas ªeld, suggests that the IBAs are not the only solution. Given the potential returns on equity investments, and given the rapid accretion of investable assets by Aboriginal communities and AEDCs, it is likely that equity participation will expand. is approach, importantly, also gives the Aboriginal people more say in project design, implementation, and operations, thus providing greater assurance for real and sustained in¢uence of project management. Equity holdings, in fact, Ä¾Ã K EN C OATES AND C ARIN H OLROYD address one of the shortcomings of IBAs, which connect Aboriginal communities to resource companies and projects but leave them with little oversight of the developments. Finally, the development of nonrenewable resources carries the inevitability of resource depletion and, in turn, the end of related employment and business activity. For a community that has not taken the short-term nature of nonrenewable resources development into account and that has not utilized the IBA resources and opportunities to prepare for the future, the winding down of a resource project can bring economic disruption and distress to the communities. A well-managed, thoughtful Aboriginal community, one with the governance structures and planning processes in place to anticipate such eventualities, pre- pares for the closure of the project and uses the short-term investment and employment to build additional opportunities. It should be noted that many non-Aboriginal communities fail to make appropriate investments or to plan for postdevelopment economic realities, which is why boom and bust cycles remain such an integral part of the Canadian natural resources economy. But to return to the main theme of the chapter, it is clear that Indigenous communities and leaders see a direct connection between enhanced economic development and autonomy and self-determination. Close to a decade ago, when the University of Saskatchewan was setting up a professional master’s degree for northern communities, extended consultations with communities led to the decision to create a masters in northern governance and development, in keeping with Indigenous leaders’ strong encouragement for an integrated study program that linked political autonomy and great ªnancial well-being.·½ At the level of government–First Nation relations, the signing of a government resource revenue sharing agreement between First Nations and the government of Ontario in May was hailed a major achievement, in substantial measure because it reset the government-to-government relationship in favor of the Indigenous communities (Kitching ). Jason Gauthier, lead negotiator on resource revenue sharing and chief of Missanabie Cree First Nation, Mushke- gowuk Council, commented:

Resource revenue sharing is a step in the right direction towards reconciliation. Our communities are continuing to take steps towards the long term goals to achieve ªnancial independence and sovereign wealth. We as communities can be ambitious in achieving our goals while retaining our position as the stewards of the land and the First peoples of Turtle Island.·¾ N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY Ä¾Â

At the community level, the connections are often explicit. At an April meeting of the Indian Resource Council, board members spoke extensively about the primary beneªts of engaging in the oil and gas economy: a greater ability to provide basic services to their communities and the opportunity to ªnance increased autonomy from the government of Canada.·¿ e growth of collaborative economic activities is a case in point. e First Nations Major Project Coalition (FNMPC), an association of more than forty First Nations from British Columbia, sees an explicit link between economic development and broader societal aims.

e purposes of the FNMPC are to work collaboratively, cooperatively and cohesively towards the enhancement of the economic well-being of its members, understanding that a strong economy is reliant upon a healthy environment supported by vibrant cultures, languages and expressions of traditional laws.·Â

Ellis Ross, former chief counsellor of the Haisla (BC) and now Liberal Member of the Legislative Assembly for the area, argued that the primary reason for economic activity, including liqueªed natural gas and pipeline development, was to free Haisla government from dependence on federal government transfers.¸Ã English River First Nation, which owned the Des Nedhe Corporation, has capitalized on commercial opportunities associated with regional mining activity to expand its portfolio into investments. ¸· is community, too, sees its growing ªscal autonomy as being central to its shift toward self-government. An early example of the coordination of commercial and governance interests was provided by the James Bay Cree and the Inuit of northern Quebec, who parlayed successful business operations into a creative and e¤ective regional governance system (Rodon and Grey ). e development of the Voisey mine in Labrador has produced substantial employment, business development, and ªnancial beneªts for the Innu Nation and the Nunatsiavut. e arrangements are seen to be in¢uential in supporting Indigenous steps toward self-government (Felt, Natcher, and Procter ). In a recent overview study, focusing on the Arctic, ierry Rodon () demonstrates that the beneªts in terms of institutional development associated with resource development have, to date, been limited. In other words, engagement with the resource economy is seen by many Indigenous communities as an important contributor to self-government but o¤ers no assurance of long- term independence from the government of Canada. Ä¾Ä K EN C OATES AND C ARIN H OLROYD

At this stage of fast-evolving relationships between Aboriginal governments and resource development activities, it is obvious that political systems, external commercial interests, the politics of resource development, and local business activities are closely intertwined. e complexity of these relationships across the country make it di©cult to discern general patterns in how governance relates to resource decision-making and commercial operations. From the perspective of corporations and governments, the quality of governance systems and, speciªcally, Aboriginal political leadership matters and appears to a¤ect decision-making and the long-term commitments needed to sustain resource development. At this point, little is known about the backstories behind the several hundred resource development agreements in the country, the several hundred Aboriginal economic development corporations, and the thousand or more recently established Aboriginal businesses involved in the sector. Indig- enous communities and the country at large have a great deal riding on the relationship between Aboriginal governance systems and the resource sector. e country has many models, with many di¤erent variables, in operation. It remains to be seen which of the systems and which set of relationships work out the best for Indigenous peoples and their communities. A follow-up study, currently launched in conjunction with Indigenous Works, a Saskatoon-based Indigenous human resources management organization, expands on this investigation. rough a comprehensive comparison of resource development, corporate-Indigenous relations, and community governance strategies in as many as forty Indigenous communities, it will provide the detailed evidence needed to expand on the preliminary analysis provided here. e project will examine IBAs, resource revenue sharing, and other economic relationships as a means of determining how these various instruments a¤ect Indigenous governance. It is clear that resource development is seen, by Indigenous leaders and governments, as a key element in the Indigenous pursuit of autonomy and self-governance. High-proªle stories, like that of Fort McKay First Nation, the Champagne-Aishihik First Nation, and the James Bay Cree, suggest that the promise of governance autonomy linked to resource development has been realized, at least in part. e more extensive study, sparked by the workshop that resulted in this collection, will allow for the comparative and detailed studies needed to determine how, when, and if resource development is sparking a resurgence in Indigenous autonomy and self-government. N ATURAL R ESOURCES AND A BORIGINAL AUTONOMY Ä¾Å

NOTES

Natural Resources Canada, “Table of Agreements,” , accessed April , , https:// www .nrcan .gc .ca/ mining -materials/ aboriginal/ . See also Natural Resources Canada, “Indigenous Mining Agreements,” accessed April , , http:// atlas.gc .ca/ imaema/ en/. See also “Voisey’s Bay,” Vale, accessed April , , http:// www .vale .com/ canada/EN/ aboutvale/ communities/ voiseysbay/ Pages/ default .aspx. See also “Remediating Faro Mine in the Yukon,” Government of Canada, last mod- iªed December , , accessed April , , http://www .faromine .ca/ project/ challenges .html. See Lac La Ronge Indian Band’s website, http://llrib .com, and Kitsaki’s website, http:// www .kitsaki .com/. See, for example, “ e Mary River Project: Inuit Impact and Beneªt Agreement,” Sep- tember , , http:// www .miningnorth .com/ _rsc/ site -content/ best -practices/ QIA -Ba©nland -IIBA .pdf. See Cameco Corp, “Strength in Depth: Sustainable Development Report,” , http:// www .cameco .com/ sustainable _development/ /; Syncrude, “Sustain- ability Reports,” accessed April , , https:// www .syncrude .ca/ environment/ sustainability -reports/. Athabasca Tribal Council, “Employment & Training,” accessed April , , http:// atcfn .ca/ our -services/ employment -training/. Corbiere v. Canada (Minister of Indian and Northern A¤airs) [] S.C.R. . Nisga’a Lisims Government, “Governance,” accessed April , , http:// www .nisgaanation.ca/ governance. See also the websites of these nations: Nisga’a Lisims Government, http://www .nisgaanation .ca/; Teslin Tlingit Council, http://www .ttc -teslin .com/. See, for example, the Maa- nulth Final Agreement, Ministry of Aboriginal Rela- tions and Reconciliation, British Columbia, April , , https:// www .aadnc -aandc .gc .ca/ DAM/ DAM -INTER -BC/ STAGING/ texte -text/ mna _fa _mnafa _ _eng .pdf. Nunavut Development Corporation, “NDC Investment,” accessed April , , https:// ndcorp .nu .ca/we -invest/ areas -of-investment/. See Osoyoos Indian Band, http:// oibdc .ca/; Squamish Nation, http:// www .squamish .net/; Westbank First Nation, http://www .wfn .ca/; White Cap First Nation, http:// www.whitecapdakota .com; Membertou First Nation, http://www .membertou .ca/. See Fort McKay First Nation, accessed April , , http:// www .fortmckay .com/; “Suncor and Fort McKay First Nation Celebrate Business Incubator Open- ing,” June , , http:// www .suncor .com/ en/ newsroom/news -releases/ ; Makivik Corporation, “JBNQA,” accessed April , , http:// www .makivik .org/ history/ jbnqa/. Ä¾¼ K EN C OATES AND C ARIN H OLROYD

e case details can be found in R v. Marshall [] S.C.R. and R v. Marshall [] S.C.R. . See Vale, “ Sustainability Report,” http:// www .vale .com/ canada/ en/ aboutvale/ sustainability/ pages/default .aspx; Cameco, “Strength in Depth: Sustainable Devel- opment Report,” , http:// www .cameco .com/ sustainable _development/ /; Suncor, “Report on Sustainability ,” http:// sustainability .suncor .com/ / en/ default .aspx. is program is now in abeyance. A new program, with similar aspirations, was created with the University of Tromso, Norway’s Arctic University. It is called Governance and Entrepreneurship in Northern and Indigenous Areas. e program description can be found here: https:// uit .no/ utdanning/ program/ / governance _and _entrepreneurship _in _northern _and _i. “Ontario Partners with First Nations to Share Forest and Mining Revenues,” May , , https:// news .ontario .ca/ mndmf/ en/ / / ontario -partners -with -ªrst -nations -to -share -forestry -and -mining -revenues .html. Personal observations, board meeting, Indian Resource Council, April . See First Nations Major Projects Coalition, accessed April , , http://www .fnmpc .ca/. In their meetings, the FNMPC members make strong connections between economic development, sustainable revenue, and greater governance independence. Ellis Ross shared these impressions in a series of interviews and public meetings in – . Details can be found at Des Nedhe Development, accessed April , , http:// desnedhe .com/.

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CREATING SPACE

Comanagement Considerations in Kakadu National Park

ÎË³´«° ²’Ì¹«µ°

AKADU NATIONAL Park is regularly (and rightly) described as “iconic.” Its notoriety rests upon a range of notable pillars, including it being Khome to its Aboriginal (Bininj) landowners, who with more than sixty- ªve thousand years of occupation represent one of the world’s longest continuing cultural traditions.· Kakadu is listed as a World Heritage site for both cultural and natural values, being Australia’s largest terrestrial national park, and the “ªrst national park in the world to depart from the strict Yellowstone model, where the land is owned by the state” (Haynes , ).¸ At odds with its national park status, Kakadu is also the site of signiªcant and highly contested mining development at the Ranger uranium mine, which was imposed on the Bininj community by the Australian government from the s. A subsequent attempt to impose a second uranium mine at Jabiluka in the s failed. Lesser known but equally important, especially to Bininj, is the fact that Kakadu was also the site of the world’s ªrst national park formally comanaged by Indige- nous peoples and the state. e relationship between the state and landowners, characterized by the asymmetrical power relations that facilitated the imposition of uranium development and continued with the joint management of the park from the early s, today provides more than thirty years of experience in Aboriginal governance and Aboriginal-state relations. is is a signiªcant and well-documented resource for analysis, particularly regarding the interplay Ä¿Ã J USTIN O’BRIEN between Aboriginal landowners beset with an imposed mining agenda (and the community division that comes with it) and the Euro-Australian managers of a national park located in “one of the most studied places on the planet” (How- itt , ). In tracing the history of Aboriginal-state relations, in particular Aboriginal accommodation to the realpolitik of comanagement, a distinct pattern can be discerned—that of Aboriginal people, following a distinct turning point or paradigm shift in power relations with the state and industry, enabling an assertion of Aboriginal control over local a¤airs via state-sanctioned structures and in doing so carving out what Arturo Escobar () has termed a “territory of di¤erence.” is trajectory is not unique, but the manner in which a three-decade stability in governance at the Gundjeihmi Aboriginal Corporation (GAC) has supported this assertion and how the “political learning” underpinning it has been sustained may well provide salient lessons for Aboriginal groups worldwide.º Kakadu is at a crossroad today, as Bininj push for greater autonomy and control over their land and livelihoods. In seeking a new relationship with the state, Bininj groups are buttressed by decades of political experience and buoyed by early signs that the federal government (which formally manages Kakadu via the Department of the Environment) may respond in kind, with an increasing emphasis on direct Aboriginal management of the park. Signiªcant hurdles to Aboriginal agency remain, however, with historic paternalistic Euro-Australian attitudes toward Aboriginal a¤airs remaining ªrmly entrenched in discussion and negotiation.» What follows is not an examination of Aboriginal governance as existing in a domain separate to the broader social ªeld within which it exists. It is, rather, an appraisal of the interface between Bininj and the Australian government and how, within that intercultural space distinguished by asymmetrical power relations, Bininj have articulated and deployed an authority separate to the dominant, state-controlled paradigm and advanced their interests and may continue to do so.¼ e emphasis of this inquiry is on the political learning of an Aboriginal organization rather than an examination of the appropriateness and utility of largely imposed (and often contested) models of “good governance.”½ To appreciate the context of this political adaptation and the audacity of the paradigm shift facilitated by the Mirarr and GAC, it is necessary to examine both the regional setting and the broader Australian policy environment as it applies to Aboriginal peoples. C REATING S PACE Ä¿Â

STUDY CONTEXT: NATIONAL PARK AND URANIUM

Kakadu National Park covers some , square kilometers, is roughly kilometers due east of Darwin in Australia’s Northern Territory, and ranges across the traditional homelands and waters of a number of what have become known to anthropology as Aboriginal “clans.” Bininj traditionally lived in small and highly autonomous extended family units within these typically exogamous social groups and shared country to a signiªcant degree, showing “a preference for spending much of their time . . . [on their father’s country] and in immediately adjoining areas” (Berndt and Berndt , ). It has been reliably estimated that prior to their contact with European and Chinese Australians in the late nineteenth century, the Bininj population of the Kakadu area was more than two thousand people. By that ªgure had “been reduced to, at most, è of the population at the time of contact” (Keen , ).¾ Today some three hundred Bininj permanently reside in thirteen “outstation” communities ranging in size from one or two families to sixty or more people. Services, including essential services and housing maintenance, are largely funded by the Northern Territory government and are today provided by a local service provider—the Warnbi Aboriginal Corporation Kakadu.¿ Living conditions on most of the outstations are consistently depressed, with decades of infrastructural neglect and substandard management (see Kakadu Region Social Impact Study , , ). Unfortunately, these problems persist to the present day. ere have been varying and at times competing anthropological interpretations of the essential social structure of Bininj life and the best means of articulating it. Much of Bininj religious life, which traditionally extended right throughout society, comprises a highly complex set of interrelationships between people and place and various totemic signiªers, on a number of bases and levels. For the purposes of administering land rights granted from the s and for the operation of the national park, certainty is required by government as to which Bininj possess which interests. is political imperative has usually led to restrictive and simplistic interpretations of the multiple and shifting patterns that comprise Bininj society. In land claim hearings from the s, such as the Ranger Uranium Environment Inquiry, which occurred (like Kakadu’s two other land claims) within the context of contested uranium mining, security of tenure was sought and secured via a near-exclusive focus on the patrilineal basis of association with land (Australian Parliament , ). Ä¿Ä J USTIN O’BRIEN

e driving emphasis from the state was to secure non-Aboriginal interests to land, for mining and the national park, via settlement with “landowners” whose ownership arose via their father. While this approach accurately re¢ected the fact that “each territory is associated with a named unit of patrilineal descent, the gunmugugur” (Berndt and Berndt , ), it also excluded governing moiety principles, inherited from the matrilineal side, that fully pattern social relations and people’s association with country and each other.Â Complementing the non-Aboriginal analysis and representation of Bininj society was the subcategorization of gunmugugur groups via language names. By the s, Bininj connection to country was customarily reduced to and represented by Euro-Australian observers as “primarily through two forms of social organisation, membership of which are ideally determined patrilineally. . . . ese are the language group, and a form known as the gunmogurrgurr” (Brock- well et al. , ). is simplistic focus on the “landowning” group e¤ectively excised Bininj from the complex and informative moiety system, which properly governs relationships to people and land and which, in the Kakadu and West Arnhem context, was underpinned by a twofold moiety (totemic) system, with “all living things and numerous inanimate entities, tracts of land, cultural practices and natural phenomena . . . a©liated with either of the moiety systems, one pair being matrilineal (-ngarradjku and -mardku) and the other patrilineal (duwa and yirridjdja)” (Garde , ). With the near exclusive emphasis on the patrilineal basis of a©liation to land, whole sets of fundamental totemic relationships to country and people were bracketed out, with the e¤ect that much traditional authority, founded upon these very relationships, had no function in the relationship with the state. e nature and extent of that relationship was determined by the state itself, based on its Euro-Australian value sets.·Ã is rendered age-old Aboriginal authority and governance mechanisms void in the power relation with settler Australia. A similar structural downside of Aborig- inal engagement in land claims was noted by Paul Nadasdy in the Canadian context, wherein land claims and comanagement are clearly a mixed blessing for Indigenous peoples (see Nadasdy , ). At Kakadu, the all-weather road to the region, the Arnhem Highway, was only constructed in . Prior to the establishment of the mining town of Jabiru in , Bininj vastly outnumbered non-Aboriginal people across the region, which was described as having a “fossicking economy” of occasional opportunistic economic activity (in safari tourism, small-scale mining, and bu¤alo hunting) by small numbers of Euro-Australians and Aboriginal workers (Levitus , ). Before the signiªcant changes of the early s, due to uranium mining, C REATING S PACE Ä¿Å notwithstanding earlier periods of violence, disease, and Christian missionaries, Bininj life and resources in the Kakadu area were predominantly managed by Bininj themselves. at social reality was to abruptly end with the imposition of uranium mining and the establishment of the township of Jabiru.

ESTABLISHMENT OF THE PARK

e Kakadu area was ªrst suggested as a national park in , when the Northern Territory Reserves Board sought its declaration (Lawrence , ). e park was ultimately declared under federal legislation in three stages—, , and —with additional proclamations in and (Press et al. , ). World Heritage inscriptions of the declared areas followed respectively in , , and . Grants of Aboriginal freehold under federal law, the Aboriginal Land Rights (Northern Territory) Act (), were steadily made in stages across the region such that today some percent of the national park is Aboriginal land. Kakadu was steeped in controversy from its inception, with Aboriginal land rights, conservation, and uranium mining all competing for primary jurisdiction. e established park was ultimately a compromise between these three and amounted to what a peak environmental organization, Friends of the Earth, described as a “controlled disaster zone” (Lawrence , ). e political backdrop to the park’s creation, marked by the coordinated coercion of government and the mining industry, is well documented elsewhere.·· Su©ce to say, “the very con¢icts that have been so instrumental in shaping the political history of Kakadu have helped to shape the nature of the joint management in the Park” (Lawrence , ) and continue to do so.·¸ e present comanagement arrangement is a daily reminder to many local Bininj of the coercive power of the state and the imbalance in their relationship with authorities. e imposition of uranium mining in Kakadu and the Eurocentric wildlife management model deployed by the government in managing the park are ongoing expressions of the relatively very recent colonization of the region.·º

JOINT MANAGEMENT

In the Kakadu National Park Board of Management met for the ªrst time following legislative amendments introduced by the Bob Hawke federal Labor government in (Haynes , ). e Bininj majority membership of the Ä¿¼ J USTIN O’BRIEN board arose from “one of the largest meetings of Aboriginal people ever held in Kakadu, with representatives of four areas of the park elected to make up the majority of members of the Board” (Levitus , ). A world ªrst, the mere existence of the Aboriginal majority on the board of management was then and has been regularly since considered evidence of formal “Aboriginal management of the Park . . . [representing] a new locus of Aboriginal authority” (Levitus , ). Establishing the grounds for genuine Aboriginal inclusion, of course, is far more complex than simply providing for an Aboriginal majority on the board. e imposition of a representative democratic system to constitute this majority, for a start, raises serious questions as to the legitimacy of the putative Aboriginal authority. is is especially so when the perªdious manner of the park’s establishment remains practically unquestioned o©cially and the dominance of Euro-Australian rationality and management practice goes e¤ectively unchallenged in practical terms.·» Compounding di©culties is the fact that the Eurocentric bureaucratic nature of the park’s administration is all-pervasive and that the poor socioeconomic conditions of the local Bininj community regularly undermine genuine (although invariably misplaced) e¤orts by the state to provide for greater Bininj agency. Senior Bininj regularly ªnd themselves confronted by an overwhelming challenge of attending frequent meetings on a wide range of often complex and contested matters, usually exclusively in English, with little to no administrative support and scant policy engagement from their communities. Coupled with typically poor education and ceaseless community stressors, this arrangement is exasperating and exhausting for Bininj and often deemed irrelevant to their everyday life. In reports spanning three decades, both before and after the advent of formal joint management (via the board majority), commentators have consistently highlighted the disengagement of local Bininj in the administration and operation of the park.·¼ David Lawrence, after an exhaustive and widespread survey of Kaka- du’s joint management in the s, found that generally, “Western, bureaucratic working practices constrain Aboriginal people within the management agency” (, ). Lawrence found that the board of management was mostly sidelined politically in the park structure and that the Western mode in which board meetings are conducted privileges state bureaucrats, which “serves only to dominate and alienate unskilled Board members” (). Chris Haynes, who served twice as park manager over an extended period, describes “the members of the Board’s Aboriginal majority [sitting] in polite dis-attention” and explains that “Board meetings seemed to bring about . . . the kind of sullen boredom that shows that participants are there against their better judgement” (, ). C REATING S PACE Ä¿½

BUREAUCRACY AND POWER

At Kakadu, Bininj very often experience bureaucracy and its underlying technical rationality as a power imbalance that both privileges the state and erodes Bininj role and function in land management. is dynamic is fueled by an information asymmetry, with state actors managing much information about country and with Bininj largely relegated to function as “the consulted.” e busy application of a seemingly mundane set of land management policies and practices in the park inadvertently denies Bininj separateness, and (ironically) such denial of di¤erence ultimately drives the marginalization of Bininj from decision-making.·½ e conclusions of Haynes with respect to the park’s much- touted board of management illustrate this power dynamic in stark relief.

In the case of the Board, all evidence points to the state having achieved, and maintained, an upper hand on most issues. From the way the Board’s charter was deªned by parliament through to how agendas are set and meetings are conducted, almost all structures are dominated by white means of knowing and doing. Although there are examples of minor resistance, the Board’s frustrated and disillusioned Aboriginal members have not been able to break the state’s grip on the Board’s modus operandi and activities. (Haynes , )

e disingenuous nature of the application of bureaucratic power does not sit easily with Bininj. State actors are often viewed as deploying the objectivity of science and bureaucracy to suit very subjective, invariably Eurocentric ends, similar to what Nadasdy observed in the Yukon, where, “although modern Euro-Canadian bureaucrats pursue their objectives ‘rationally,’ those objectives are themselves based on subjective values and non-rational assumptions about the world” ( , ). As a national park, Kakadu is administered according to the Environment Protection and Biodiversity Conservation Act (a federal statute), its regulations, and a plan of management. e area is rightly regarded as overly complex and overgoverned, with “an extraordinary array of government departments, community and public interest groups, private interests, and regulators or various sorts. Surveillance and supervision is probably more intense in this locality than anywhere else in Australia, and its administration and enforcement is complex and demanding” (Howitt , ). A legislative requirement, the plan of management is the key administrative instrument for the park, laying out policy and procedure for all activities within its boundaries. is includes Ä¿¾ J USTIN O’BRIEN every aspect of Bininj life, from where and how Bininj may live in the park, to hunting and other traditional pursuits, as well as the regulation of all commercial activity, including that conducted by Bininj landowners. ere are two key considerations regarding the plan that require speciªc mention. First, Bininj engagement in the plan’s development and its ongoing use (plans are multiyear) is very limited, with Bininj several steps removed from the legalistic and policy- driven framing of their life in Kakadu. is marginalization is cemented by the Eurocentric mode in which “consultations” with Bininj occur and the (intrinsic) political expediencies often driving state actors. Second, the very nature of the plan ªxes an administrative control of place, where the primary organizing principal for country and interpersonal relations is a bureaucratic instrument. is has the e¤ect of dissociating land from its spiritual context with a consequential dispiriting e¤ect on Bininj landowners and managers. To the casual Euro-Australian observer, on the surface there is nothing notable about any of this. It is simply how national parks operate, drawing on the wildlife management approach deployed in similar parks across the globe. Kakadu simply has an added layer of complexity with the requirement to consult with Aboriginal landowners. As far as much of the world knows, this is all going very well. For example, in a piece otherwise critical of the “Edenic,” “pre-lapsarian” portrayal of Kakadu as an international tourism destination, the administration of the park is praised as “an example of harmonious joint management between a European-style parks management system and the Bininj and Mungguy, the indigenous people of the park” (Harris , ).·¾ From the Bininj perspective, however, things are not, of course, harmonious in Kakadu’s joint management when there is consistent wrangling between park management and Bininj and where the much-touted Aboriginal majority on the park’s board of management, often described as the linchpin of joint management, is, in fact, according to Haynes, “a location of state hegemony over traditional owners” rather than a partnership (, ). e “ordinariness” of the park’s administration, along with aspirational sum- mations of its joint management, masks the alienation Bininj experience as their worldview and agency are routinely sidelined. Bininj disengagement from the administration of the park, understandable given the imbalanced power relations at play, is regularly portrayed by state actors (albeit often informally) as indolence or disinterest.·¿ Such power imbalance and unfair accusations of apathetic Bininj provide markers of the road to avoid when planning for a fairer, more robust governance arrangement at Kakadu. C REATING S PACE Ä¿¿

WHOSE GOVERNANCE?

It is a mainstay of Australian race relations that settler emotion and ideology crowd out logic when it comes to Euro-Australians’ policy and practice toward Indigenous Australia. So-called evidence-based policies are pursued in accordance with predominant policy paradigms administered by Euro-Australians, in ways recognizable to and controlled by them, usually in isolation of genuine and ongoing engagement with a¤ected communities on their terms.·Â is naturally excludes Aboriginal worldviews, values, and agency, and signiªcantly privileges the Euro-Australian outlook. e lack of Indigenous take-up of policies and programs arising from this Euro-Australian mind-set and practice, although understandable from the perspective of the subaltern as a genuine “weapon of the weak” (or everyday form of resistance; see Scott , ), is predictably prob- lematized by Euro-Australians, termed “disengagement,” and then, invariably, linked to “poor governance” in Indigenous communities. Diane Smith and Janet Hunt e¤ectively describe “a preoccupation with Indigenous governance failure and dysfunction . . . among policy makers and commentators alike,” to the point that Indigenous Australia is “commonly seen through the lens of a deªcit model of, and a problem for, ‘good governance’” (, ). Political necessity and the broader colonial settlement narrative mask out Indigenous agency repeatedly and almost entirely.¸Ã Even seemingly well- meaning policies, such as “self-determination,” are in the Australian setting largely founded on an unwillingness to genuinely acknowledge and engage with the “territory of di¤erence” of Aboriginal Australia.¸· So much of state policy with respect to Bininj has been focused on welfare, recast as “practical reconciliation” by Australian policy makers in recent years, at the expense of an acknowledged distinct political identity, the recognition of real property rights, and the meaningful engagement with Bininj in economic development as partners. is mirrors the experience of Alaskan Iňupiaq with the state’s problematization of Indigenous poverty coupled with coercive measures that denied Iňupiaq agency over resources, as succinctly captured by a prominent Iňupiaq activist, the late Etok Edwardsen, in a statement following the withdrawal of the Arctic Slope Native Association from the Alaska Feder- ation of Natives in .

It is our land. And now the white man comes upon our land to devastate it and to exploit its natural resources. What are we receiving in return for this treatment? Ä¿À J USTIN O’BRIEN

We are being allowed to participate in a settlement whose framework is not based on rights in land, but rather hinged on social welfare. (Gallagher , )

During the height of the campaign against the proposed Jabiluka uranium mine, Mirarr senior traditional owner Yvonne Margarula expressed a similar sentiment toward state actors, although in somewhat starker terms: “You treat me like an animal. at is my country, I have dreaming for that country, what do you have, what do you know?” (GAC ).¸¸ In Australia the problematizing of Aboriginal people and Aboriginal poverty is endemic. Assessments of Indigenous governance made from within this doggedly unchanging paradigm, isolated from all cultural context and exclusive of economic and political rights, are patently inadequate.¸º e question arises as to whose governance is referred to in the preoccupation of Australian state and federal governments with Indigenous governance, which today, as Diane Smith argues, “has become synonymous with western democratic, neo-liberal ideas of what is supposed to constitute ‘good’ governance” (, ). ere can be today no consideration of any agreement between Aboriginal Australians and government or industry without a mandatory, even if meaningless, reference to “good governance.” is would be satisfactory were it not for the fact that the emphasis on “good governance” masks all other considerations, including (irrationally) whether agreements are culturally sustainable. Governance has become a by-word for a vast ªeld of neocolonial relations between black and white Australia, spanning the spectrum from re¢ecting Aboriginal ideas and aspirations to yet another encoded means of expressing state coercion. is coercion may manifest itself directly or indirectly, where this discourse is rooted in European history and expresses its journey to a post- Enlightenment administered society founded on bureaucracy and technical rationality, as well as fundamental notions of self and society, invariably marked by “the idea of the rational, self-interested individual,” distinctly at odds with Indigenous tradition (Roscoe , ). Elsewhere Smith notes “another sig- niªcant factor limiting Indigenous transformation of governance” is the fact that many contemporary Indigenous governance initiatives “are embedded in, not separate from, the institutions and power of the state and its culture of governance”: “In Australia, the state exercises overwhelming jurisdictional, institutional and ªnancial powers through which it governs Indigenous culture and seeks to make Indigenous governance and people ‘good’ in western terms” (, ).¸» In modern Australia the manner of Aboriginal management or C REATING S PACE Ä¿Á

“leadership” mostly preferred and rewarded by the state is one that recognizes and parleys with Euro-Australian power, that “manages up” in the realpolitik sense. is is because, ªrst, traditional Aboriginal systems of leadership have largely remained imperceptible to Euro-Australia and, second, the Euro- Australian political system mostly seeks to exclusively engage with Aboriginal people on its own terms. While such “managing up” may seem perfectly reasonable to Euro-Australians (simply re¢ecting the modes of delegated authority underpinning European conventions), it has debilitating consequences for Aboriginal communities whose traditional decision-making structures are typically marginalized while the power play occurs between “community leaders” and the state. At Kakadu, for the purposes of government liaison, putative Aboriginal leadership is established through the arcane electoral process to the Kakadu National Park Board of Management, where deliberations with the state are conducted within a hierarchical frame and linguistic mode alien to most Aboriginal community life. After some thirty years of such policy imposition, invariably within the “self- determination” paradigm, these formal solutions have largely been deemed to have failed, as described by Diane Smith elsewhere in this book. It is a bitter irony that Aboriginal Australians are invariably held responsible for these failures, whereas in truth what has failed is non-Indigenous imposed management, primed by a failure of the colonial imagination and ideologies and an attendant unwillingness to recognize the obscured decision-making structures and processes of Aboriginal Australia itself.¸¼

SELF¢DETERMINATION IN AN AUSTRALIAN CONTEXT

Prior to the federal Australian Labor Party (ALP) assuming o©ce in , under the leadership of Prime Minister Gough Whitlam, the o©cial federal policy with respect to Aboriginal Australians was “assimilation,” which “envisaged a future in which the forms of indigenous authority would continue their irreversible decline” (Rowse , ). e Whitlam administration stated it would reverse that trend and “restore to the Aboriginal people . . . their lost power of self-determination” (Batty , , quoting from Whitlam’s policy speech). Under the policy of self-determination, declared Whitlam’s ªrst minister for Aboriginal a¤airs, Gordon Bryant, the government would not “make decisions ÄÀÃ J USTIN O’BRIEN on behalf of Aborigines” or allow Aboriginal people to be “pawns in a game played by non-Aboriginals” (Batty , quoting Bryant). e policy was enacted via key legislative mechanisms and a range of institutions, notably the new federal Department of Aboriginal A¤airs (DAA). e DAA was established by and ultimately controlled by non-Aboriginal actors in the federal and state political spheres, such that “contemporary formations of indigenous authority [were] thus articulated with the processes of the state” (Rowse , ). During the term of the conservative coalition government of Prime Min- ister Malcolm Fraser, immediately after the Whitlam government, the “somewhat provocative” term self-determination was changed “to the slightly more restrained ‘self-management’” (Altman and Sanders , ). During this time, it was clear that consideration “of governance, sovereignty and autonomy, while current in Aboriginal discourse . . . was not countenanced in policy discourses” (Howitt , ). For practical purposes the policy of self-determination, the primary vehicle for which was the “Aboriginal corporate body” managed in typical bureaucratic mode (Batty , ), was in large part re¢ective of the ongoing formation of the settler state rather than any genuine expression of Aboriginal sociopolitical identity. In Australia, at least, management and governance have su¤ered from a con¢ation where what are in truth often simply service delivery organizations have become synonymous with institutions of self-government, as e¤ectively highlighted by Patrick Sullivan: “Management is about the e©cient implementation of programs, while governance concerns the distribution of authority throughout a community. . . . Both need to be integrated with each other, but they should not, as they have in Australia, be con¢ated” (, ). In practical terms, the policies of self-determination neither envisaged nor enabled the administration of an Indigenous domain distinct from the Australian state, as they “were not designed to enable Aboriginal people to achieve political autonomy” (Lawrence , ). Such separateness is deeply problematic in settler Australia. For starters, the dominant Euro-Australian settlement narrative (and its legal, economic, and sociocultural foundations) comprehensively precludes the emergence of any genuinely separate Aboriginal polity. Further, the promulgated policy of self-determination, in the Australian setting, unlike in the United States, has never in any real sense related to Indigenous sovereignty.¸½ Irrespective of its legal standing, self-determination, like other Aboriginal policy as determined by the Australian government, bears the mark of the European, C REATING S PACE ÄÀÂ post-Enlightenment tradition—the administered society, marked by rationality, bureaucracy, and capitalism. Much contemporary mainstream discourse on Australian Aboriginal governance is that it has failed to deliver on the promises of the s, that Aborigi- nal people are “incapable of governing themselves,” thus justifying government intervention (Australian historian John Hirst, quoted in Smith , ). While it is true that many Aboriginal entities have failed to deliver on the hope of land rights, this construction ignores the fact that the essentials of what might inform good management were swept aside in the ongoing colonization of Australia. is situation was dogged by a lack of recognized di¤erence and charged by historical forces and poor race relations in which no consideration or space was given to Aboriginal ways of decision-making and organizing. It is naïve to think that e¤ective Aboriginal governance, in this context, could ever ¢ourish.¸¾ Rights may have been granted and entities established, but while the essential di¤erences between Aboriginal and Euro-Australian societies remain unexamined in a practical and everyday sense, little real progress can be made in deªning and developing a robust Aboriginal governance model in its own right.

THE TURNING POINT

In this Australian setting, then, Aboriginal entities (replete with legislated “non- replaceable” rules and the like) are not, of themselves, expressions of political sovereignty—they are an extension of state authority into Aboriginal lives.¸¿ In and of themselves they o¤er no panacea to the ills of political marginalization and enduring disadvantage. Yet such organizations can carve out Aboriginal authority separate but complementary to the mainstream.¸Â For this to occur there must typically be a transformative moment that allows this opportunity to emerge. In the case of the Mirarr People of Kakadu, that galvanizing moment came via their discontent at the operations of the Ranger uranium mine and the attempt to develop from the s the proposed Jabiluka uranium mine, which had been mothballed by federal policy during the thirteen years ( –) of the Hawke–Keating Labor Party dominance of Australian federal politics.ºÃ Sig- niªcantly, this dispute over mining occurred entirely outside the jurisdictional concerns of the national park authorities as it related to mining enclaves outside (although surrounded by) the proclaimed national park area. ÄÀÄ J USTIN O’BRIEN

e imposition of the Ranger mine forcefully ªxed the disempowerment of Kakadu Bininj. Little was done by the then royalty-receiving entity, the Gagudju Association, to genuinely counter the marginalization, founded and funded as it was by the pro-mining agenda.º· Until the mid-s the traditional owners of Ranger, the Mirarr (who were and remain members of the Gagudju Associ- ation), were largely at a remove from the locus of Aboriginal power in Kakadu. It is outside the scope of this chapter to detail the mismanagement of the Ranger uranium mine income stream by the Gagudju Association and the social upheaval it triggered. Su©ce to say, by the mid-s the association’s ªnancial di©culties as well as ongoing community con¢ict prompted the Northern Land Council (NLC) to intervene and establish the GAC, the membership of which comprised only Ranger’s traditional owners—the Mirarr Clan. One critical part of the shift was that the NLC almost immediately redi- rected the Ranger income to the new corporation.º¸ is coincided with a political shift as well. In the newly elected conservative Liberal-National Coalition government of Prime Minister John Howard put uranium mining squarely on the national and international agenda, indicating its strong support to see the proposed Jabiluka uranium mine proceed. is triggered Mirarr opposition (primarily on the grounds of the threats the development posed to their cultural heritage) and the establishment of a comprehensive network of nongovernmental organizations (NGOs) across Australia and the world against the development, coordinated by the GAC. e senior traditional owner of the Mirarr landowners of the site of the Ranger uranium mine, Yvonne Mar- garula, decried the Gagudju Association as unrepresentative and unaccountable and controlled by the mining company agenda, to which she was opposed. In establishing GAC, Margarula and the Mirarr necessarily “broke rank” with the development paradigm that had e¤ectively dominated Kakadu since the s. Of necessity she broke away from the collectivist Gagudju Association model and established her traditional authority in a truer community of interest among her fellow Mirarr Clan members in the GAC. In addition to heading a prominent and ultimately successful campaign to protect her people’s country from the Jabiluka development, winning international acclaim along the way, Margarula has provided almost a quarter of a century of stable leadership to her immediate clan and the broader Bininj community of Kakadu. Since its establishment the GAC has maintained a vigilant watch on the environmental performance of mining operations at the Ranger uranium mine, managed a complex and enduring campaign via national and C REATING S PACE ÄÀÅ international advocacy, and established and maintained an ambitious socioeconomic agenda. Today GAC is leading the industry, community, and government in both paving the way for the transition of the regional economy postmining (set to end by ) and the satisfactory and timely rehabilitation of the Ranger mine.ºº Margarula is neither elected in a state-sanctioned election nor appointed pursuant to state policy. Her authority derives entirely from her standing as the senior traditional owner of the Mirarr Clan. is initial head of power, so to speak, is buttressed by a strong and abiding administrative accountability on the part of GAC management and key expert advisers, a strength that, prima facie, misleads many observers to consider this “good governance” the cornerstone of the corporation’s enduring stability. It is, oddly enough, merely good management practice—the authority and stability of corporation, which allows it to undertake its ambitious program, stems entirely from the cultural standing of the Mirarr and of Yvonne Margarula. e stability of the corporation, the bedrock upon which innovation can occur, is due to the unanimity of the membership in following the leadership of Yvonne Margarula. In stepping away from the Gagudju Association and protesting the Jabiluka proposal, Margarula has e¤ectively carved out the territory of di¤erence and, in the space created, reasserted an agency founded exclusively on Aboriginal cultural authority. Under the guidance of its Mirarr Board of Directors, the GAC directed its independent income (via mining royalties) to developing a strong internal policy and political campaign capacity, to provide practical e¤ect to the turning point.

NEW APPROACHES: COMPLEMENTARITY AND INTEGRATION

is turning point for the Mirarr is manifesting itself in new approaches toward how the territory is to be managed, including the economic beneªts ¢owing from that management for the Bininj. Regional economic development has been a focus of Bininj organizations in the Kakadu region since the early s, with the “activities of the Gagudju Association in managing . . . mining payments, acquiring long-term investments, and delivering a range of community services within the region . . . a much-admired model for dealing with ªnancial aspects of mining impacts in Aboriginal communities” (Howitt , ). is economic development was primarily centered on tourism—two hotels and a ÄÀ¼ J USTIN O’BRIEN boat cruise. To that extent, such Bininj-led economic activity did not substan- tively impact the Australian government’s management of the national park. While these tourism businesses drove increasing visitation to the park, this activity occurred in a domain entirely separate from the state’s formal management ethos, particularly during the establishment years of the park. In recent years, however, Bininj organizations have sought to derive greater value from their country and its resources inside the park, with ecotourism development outside developed areas, land management contracts with the state, and the proposed commercialization of bush foods. Given the extent of state regulation of Bininj land and life in Kakadu, that “their [Bininj] current lives are framed by how the park is administered” (Haynes , ), this has invariably led to arguments between Bininj groups and the Australian government.º» Across the region, Bininj are seeking new, cooperative arrangements with the Australian government, whereby they might fully realize the economic value of their land and waters in sustainable ways. Bininj traditional owners and their families are increasingly interested in developing a more sustainable and socially inclusive regional economy, utilizing opportunities in tourism and environmental services, particularly weed and feral animal management and carbon farming (Whitehead , xvi–xvii). e commercialization of native bush foods such as the Kakadu plum (Terminalia ferdinandiana) is also of increasing interest to Bininj groups (Gorman, Gri©ths, and Whitehead , –). It is hearten- ing that notwithstanding the challenges these prospective developments pose to the traditional land management model of the Australian government, the government has commenced high-level discussions with Bininj groups. Underpinning the state’s engagement with Bininj, whether explicitly stated or not, is a concern that local Aboriginal organizations genuinely represent the will of Kakadu’s traditional owners and their families (as determined by the Northern Land Council, itself a federal statutory body, as well as the Australian government’s Department of the Environment) and that these organizations have “good” governance in place. To avoid the blanket imposition of Eurocen- tric notions of good governance, it is essential that Bininj groups take concrete steps to ground their governance on sources of Aboriginal authority outside the exigencies of government policy and settler Australia imaginings, as in the case of Yvonne Margarula and the Mirarr Clan in the GAC. Signiªcant work in this regard from a land management perspective has already been undertaken in Australia’s “Caring for Country” movement. Exam- ples of this, including those in areas outside the national park and away from its C REATING S PACE ÄÀ½ control, provide a practical guide for Bininj. e Caring for Country movement in Australia has grown exponentially over the past ten to ªfteen years, such that in there were more than seven hundred Indigenous rangers working in more than eighty sites across Australia (Kerins ). Immediately to Kakadu’s east, in West Arnhem Land, Aboriginal rangers have formally conducted the West Arnhem Land Fire Abatement (WALFA) Project in partnership with government and industry since , although the project to reduce carbon emissions from savanah burning commenced some ten years earlier (NAILSMA, n.d.). e WALFA Project, conducted by Warddeken Land Management Ltd., was the ªrst such carbon abatement project to utilize restored traditional Aboriginal burning practices to generate carbon credits (Warddeken Land Management , ).º¼ e project is an integral aspect of a broader return to country by Bininj who left their traditional homelands for life in settled areas in large numbers from the s. ese Bininj have determined that, “without people doing customary management, especially of ªre, the Indigenous estate was physically and spiritually ‘sick’” (Cooke , ). WALFA represents, in practical form, a guide for other Bininj groups in the Kakadu and West Arnhem region who similarly aspire to return to sustainably working on their traditional lands. e WALFA governance arrangements provide for reduced administrative governance (as compared to most Aboriginal corporations) and maximum opportunity for Bininj members to set the agenda and processes in ways sympathetic to their customs, outside government control. In Kakadu itself the Bininj Manbolh project, documenting traditional walking routes through the Mirarr estate in northeast Kakadu, commenced in and involves a partnership between Bininj and other NGOs and government participants. A small team of linguists (led by a long-term interpreter for and associate of GAC) and archaeologists documented these routes with Bininj and Bininj youth, recording sites of signiªcance, stories along the route, and the social histories of the regions in a variety of forms, including written reports and video. While the management of the project was the responsibility of academics administering grant funds, the engagement of Bininj and their design and content has signaled a clear interest and capacity to further such cultural heritage opportunities in the park.º½ Such working on country and cultural heritage initiatives are not free from challenges, in actual implementation. ey also risk alienating Bininj people if conducted in an overly bureaucratic manner. Irrespective, the problems are not insurmountable, and in the ªnal analysis bureaucratic processes, which currently ÄÀ¾ J USTIN O’BRIEN otherwise dominate Aboriginal life (particularly in the Northern Territory), are most likely best turned to greater signiªcance to Aboriginal life and for Aborig- inal beneªt in the case where Bininj priorities and values are paramount, such as with Working on Country projects. Working on Country projects, naturally, greatly vary in their management practices but are generally underpinned by an assertion of Aboriginal authority, derived from connection to country as the integral driver, as distinct from a Euro-Australian precept of good governance. is foundation, and the fact that the locus of control is “on country,” privileges Aboriginal knowledge and practice. In Kakadu, there are presently three Aboriginal ranger groups associated with Aboriginal corporations. Another two Aboriginal organizations aspire to establish ranger groups. All of these groups are currently, in some form or another, in negotiation with the state managers of the national park to secure contracts for working on country. While these activities must still report to (mostly) government funding agencies in a manner determined by the state, the preservation of the Aboriginal domain as a distinct sphere, unhampered by Eurocentrism, and based on being on country, holds out hope for their long- term sustainability.

CONCLUSION

It is critical that Indigenous Australians and Euro-Australian policy makers break with the tendency to blindly equate “good governance” with Indigenous socioeconomic advancement and con¢ating it with “good” management. Hon- estly recognizing the fundamental distinction between e¤ective and accountable organizational management and “governance” in the broader sociopolitical sense needs to occur. is recognition must develop irrespective of ideological allegiances, whether liberal or conservative. Respecting Aboriginal di¤erence and preserving, to the greatest extent possible, an Aboriginal domain might allow attention to be focused, as a ªrst principle, on mutually understood and agreed administrative procedures and communication. In terms of the ongoing broader debate on Indigenous governance, an open-eyed gradualism may well deliver the best results. It would be better to not, as stated throughout this chapter, con¢ate management with the governance of political rights but instead to free Indigenous peoples up from C REATING S PACE ÄÀ¿ imposed Eurocentric “governance” values and allow political learning to occur in an “Aboriginal domain.” at space would allow for the growth of political rights, without confusing the agenda with the management of service delivery. Meanwhile, policies and procedures in Aboriginal corporations and councils, and government agencies in liaison with Indigenous people, must be honestly appraised, reevaluated from an intercultural perspective, and based on a sound anthropological and legal basis. e hope from today is that the state is willing to yield in the power struggle that, although masked, constitutes Bininj life in Kakadu, for the government to grant control over country to Bininj in a spirit of partnership. is would allow Bininj to dictate their own terms of engagement and management, to facilitate a discussion on “governance.” In this way, it may be possible for Bininj to conceive and develop, in partnership with non-Indigenous Australians, ways of making decisions that re¢ect tradition and its adaptations, to be alive to the power relations within which Indigenous and non-Indigenous peoples interact, and to purposefully avoid absurd impositions of Eurocentric value and practice. As discussed by William Nikolakis in his chapter on the Canadian context, this design should no longer focus on meeting, either primarily or exclusively, the political needs of the colonizer or easily slotting into the nation-state settlement narrative—Australia’s imagining of itself—but to construct foundations upon which a genuine partnership might be founded. is partnership would be distinguished by recognition and respect for di¤erence.

NOTES

Bininj—denoting () person, human being; () Aboriginal person; and ( ) man—is pro- nounced bi- niny or binning, or biniŋ in the International Phonetic Alphabet. See Bininj Kunwok Project, n.d. e corresponding term, from the Jawoyn language, for the south of Kakadu is Mungguy. e term Mirarr denotes an individual clan within this broader Bininj public sphere. Kakadu is listed as a World Heritage site against the following “Cultural Criteria”: (i) represent a unique artistic achievement, a masterpiece of a creative genius; and (vi) be directly or tangibly associated with events or with ideas or beliefs of outstanding universal signiªcance; and the following “Natural Criteria”: (ii) outstanding examples representing signiªcant ongoing geological processes, biological evolution, and man’s interaction with his natural environment; (iii) unique, rare, or superlative natural phenomena, formations, or features or areas of exceptional natural beauty; and (iv) the most important and signiªcant habitats where threatened species of plants and animals of outstanding universal value ÄÀÀ J USTIN O’BRIEN

from the point of view of science and conservation still survive. See UNESCO World Heritage Centre, n.d. is notion of political learning from a subaltern perspective is drawn from Eva Poluha and Mona Rosendahl (, ). ey, in turn, borrow the description from Nancy Bermeo (, ), who employs the term under di¤erent circumstances. is control is marked by a near total focus on welfare matters in the wake of a dramatically described “national emergency” in , involving Indigenous children in the Northern Territory as justiªcation for a host of relatively disproportionate intrusions into Aboriginal peoples’ civil and political rights. Francesca Merlan () includes a detailed discussion of the intercultural in the town of Katherine, just south of Kakadu. is analysis is highly localized. ere are many examples of Aboriginal organizations across a wide range of activities e¤ectively managing in ways recognizable and agreed to by government. My focus is on the contestation at Kakadu of the state’s role as regulator and the fact that such management is not readily adopted. I draw from my personal experience working for and on behalf of Mirarr traditional owners to demonstrate the ways in which they have manifested a new political opportunity based on cultural authority and deployed “good governance” to fulªll their aims and objectives. ere are a variety of explanations for this massive population decline, including spo- radic violence by Euro- Australians (several massacres are recorded in Aboriginal oral histories) and voluntary migration to Darwin in the west and to the Church Missionary Society mission at Kunbarlanja to the east. However, it is widely considered that “the most potent cause of the reduction of the Aboriginal population was the transmission of introduced diseases,” with the “aggregation of Aborigines in town and settlements . . . [hastening] the transmission of disease” (Keen , ). In the ethnologist Baldwin Spencer spent several weeks in the region with the Euro- Australian bu¤alo hunter Paddy Cahill and, “with the help of his host, who spoke the local language, [he] recorded rituals, customs, mythology and aspects of the social organisation of the Gagudju and adjacent peoples” (Chaloupka , ). Spencer called the dominant local population “Kakadu,” describing it as “one of a group, or nation of tribes inhabiting an unknown extent of country. . . . Its eastern extension is not known. For this reason, I propose the name Kakadu, after that of the tribe of which we know most” (Chaloupka , , quoting Spencer). From the early s, outstations were serviced by the Gagudju Association Inc., from funds derived from the Ranger uranium mine. Facing increasing ªnancial di©culty, the association divested itself of this responsibility beginning in the mid- s. e devaluation of “mother’s country” association with and decision- making for country has had a deeply disruptive and divisive in¢uence on Bininj society across the region. is type of “closed” power distinguished by self-reference is recognized by Marxists, particularly following Antonio Gramsci, as a form of “symbolic hegemony,” by C REATING S PACE ÄÀÁ

which “elites control the ‘ideological sectors’ of society—culture, religion, education, and media—and can thereby engineer consent for their rule” (Scott , ). For example, see O’Brien ; Trebeck ; Altman ; Scambary . It is now known, for instance, that the federal government purposefully stalled the establishment of the national park in order to pressure Bininj to conclude the delayed Ranger uranium mine agreement. During the passage of the Aboriginal Land Rights (Northern Territory) Act (), the right of the traditional owners to veto the mine, a right otherwise enjoyed by recognized traditional Aboriginal owners in the Northern Territory, had been expressly denied. See the cabinet submission from then deputy prime minister and resources minister, Doug Anthony (Anthony ). Colonization is here considered an ongoing cultural process rather than a historical event, as discussed by Gaynor Macdonald (). It is noteworthy that the all- weather road to the Kakadu region was only constructed in . Elections to the board of management, coordinated by the Northern Land Council (the statutory authority responsible for administering the Aboriginal Land Rights Act and formally representing traditional Aboriginal owners under the act), are held every four years. e management of these elections is distinctly arcane, with regular confusion as to who is eligible to both stand for election and to vote. e process is guided by an NLC anthropologist’s interpretation of clan groupings and hierarchy within them, the unquestioned application of a poorly articulated variant of representative democracy, and, ªnally, appointment of successful candidates by the federal minister for the environment following various police checks. See, for example, Lawrence – , ; Weaver . ese references cite the work of Sally Weaver in the mid- s and David Lawrence’s assessments from the s. See also Christopher Haynes (, ), where the ªrst use of the term joint management is attributed to the Northern Land Council, in its submission to the Aboriginal Land Rights Commission in . Escobar has noted in other contexts that this denial can act as an instrument of colonization: “Di¤erence is what deªnes being, and as di¤erence is always in the process of being transformed, so is being. e oppressor, the colonizer, the dominant seek to occupy the time and energy of the subaltern to preclude di¤erence from becoming an active social force” (, ). Kakadu is widely recognized internationally as a tourist destination and is the subject of an estimated , Google searches every month. Alternatively, this disengagement is shown in ways typical as “weapons of the weak” (Scott ), such as nonattendance at board meetings, avoidance of park consultations, and contradictory behavior and messaging to park administrators. Examples of this in practice in the Northern Territory can be found in Bill Ivory’s work at Wadeye regarding the amarrurr Region Council (see Ivory ) and Smith’s work in the Kakadu / West Arnhem region regarding the West Arnhem Land Regional Authority Interim Council (see Smith ). ÄÁÃ J USTIN O’BRIEN

Appropriately enough, it appears that for Euro-Australian actors there is a regularly convenient convergence of the end of reasoning in relation to Aboriginal people with the political and economic needs of “mainstream” (non-Indigenous) Australia; that is, reason assuredly ends where overarching political need arises. is is especially seen in the regional and remote areas of the country, with a mostly untrammeled state application of Eurocentric visions of modernity, of the rational and the measurable, no matter how ill- ªtted they are to Indigenous Australian social realities. Margarula was addressing the members of the Alligator Rivers Region Advisory Committee, an entity established under federal law as a stakeholder forum regarding the e¤ects of uranium mining on the Alligator Rivers Region environment, which includes Kakadu. e starkest example of this disjunctive policy approach is the so- called Northern Territory Emergency Response of (see Altman ). e “Intervention,” as it is popularly known, saw the military enter Aboriginal communities and herald a new era of welfare- centered paternalistic policy, at the expense of Aboriginal agency and rights. e federal Racial Discrimination Act of , for example, was suspended for the purposes of the Intervention so as to allow it to proceed. e U.S.-based Harvard Project, with its emphasis on “cultural match,” has a degree of bearing in the Australian context, although how it is interpreted within Australia has been problematic, with some viewing its focus on Indigenous sovereignty as making it irrelevant in the Australian context. It is often instructive to consider earlier treatments of recurring or endemic policy problems. For a variety of reasons this is nowhere clearer than in the case of Aboriginal a¤airs. A review of Aboriginal communities of Central Austra- lia underscored the di¤erences between traditional Aboriginal and Eurocentric management. Australia’s ªrst Indigenous federal parliamentarian, Senator Neville Bonner of Queensland, clearly articulated the essential di¤erence: e management of collectively- held resources [in non- Aboriginal society] is undertaken by representative political structures. In Aboriginal society no such structures emerged. Rather, access to the natural resources was largely unrestricted and determined by individual skill and knowledge of the country. Management of the traditional productive system did not require the establishment of public goals and a capacity to take collective decisions that would bind all parties. ose principles that were to universally apply were objectiªed beyond human decision-making (which could involve a clash of private interests) in the Law—the Dreaming or the Tjukurpa. is system did not require a political structure to resolve competing claims and govern distribution of resources. No executive to set policy or bureaucracy to administer rules and procedures was needed. (quoted in Gilmour , ) e absence of any consideration of genuine Indigenous political autonomy in the Australian use of the term self-determination fundamentally distinguishes it from the use of the term in international law, linked as it is to elemental human C REATING S PACE ÄÁÂ

rights regarding political status, economic, social, and cultural development (see Gardiner-Garden ). at self- determination did not equate to any form of sovereignty was made abundantly clear by a later ALP minister of Aboriginal a¤airs, Clyde Holding, who in emphasized:

I have made it clear to Aboriginal people that neither the grant of land rights, nor the recognition of Aboriginal prior occupation and ownership, in any way puts Australian sovereignty in question. . . . Sovereignty is vested in the Crown and parliaments, for a single people united in the Commonwealth. e people who are so united under the Crown are all Australians. ese matters are not in question. (quoted in Gardiner- Garden , ) An indication of this naïveté was the suggestion by the federal government in that once the Aboriginal organisations introduced by the Aboriginal Councils and Associations Act were managed and operated by Aboriginals, “the Depart- ment itself should disappear” (Batty , ). is analysis is also advanced by Philip Batty (for example, Batty , –). It is my perspective that the adoption of unrealistic notions of sovereignty and “ªrst nation” status implicitly accepts European political parlance such as the use of the term nation (as in the term £rst nations in the United States) and rather than legitimating Aboriginal agency actually achieves an opposite e¤ect—by diminishing tradition in favor of European terminology founded on centuries of political history. is may well be another example of what prominent Aboriginal broad- caster Stan Grant— a Wiradjuri man— has described as being “trapped in the imaginations of white Australians” (, ). e Labor Party achieved this by denying the owners of the Jabiluka mine a permit to export uranium. Gagudju was established under Northern Territory law in and comprised a broad- based membership of more than members from more than eleven clans across a wide region. e NLC decided that providing Bininj from across a wide region with indeterminate instructions about the need for the entity and allowing succes- sively larger meetings to greatly expand the grounds for membership—in what one contemporary observer described as an “ad hoc and opportunistic” manner—would be an exercise in “self- determination” (see Levitus , ). e GAC continues to receive the so-called Ranger uranium mine royalty equivalents to the present day. Over the past decade the GAC has increased its equity more than tenfold, established a burgeoning future fund, and expanded its Aboriginal workforce via the establishment of vocational and educational training pathways, the construction and operation of a boarding school, the operation of a ranger group, the opening of three local retail businesses, and a host of socioeconomic/sociocultural programs. e GAC has also positioned itself well to adapt to the downturn in the regional economy post-mining. ese disagreements primarily relate to the negotiation of tenure arrangements suitable for Bininj groups to attract outside investment and to legal constraints on the commercialization of Kakadu’s plant and animal resources. ÄÁÄ J USTIN O’BRIEN

e Warddeken constitution was developed by a lawyer who subsequently became the long- term legal and policy adviser to senior Mirarr traditional owners and GAC management. In more recent times the GAC has moved away from Kakadu’s near- exclusive focus on research-oriented cultural heritage projects in favor of a more active role in managing cultural heritage. is involves the establishment of a cultural heritage management unit in the GAC to engage in activities that provide employment and income beneªts to members and their families and allow for transmission of cultural heritage across generations.

REFERENCES

Altman, J. . “Indigenous Rights, Mining Corporations, and the Australian State.” In e Politics of Resource Extraction: Indigenous Peoples, Multinational Corporations, and the State, edited by S. Sawyer and E. T. Gomez, –. London: Palgrave Macmillan. Altman, J. . “Arguing the Intervention.” Journal of Indigenous Policy :–. Altman, J., and W. Sanders, W. . “From Exclusion to Dependence: Aborigines and the Welfare State in Australia.” Discussion Paper . Centre for Aboriginal Economic Policy Research, Australian National University, Canberra. http://caepr .cass .anu .edu .au/ sites/ default/ ªles/ docs/ _DP _ .pdf. Anthony, J. D. . “Ranger Uranium—Agreement with the NLC: Options for Early Conclusion.” Cabinet submission by J. D. Anthony, chairman, Ad Hoc Committee (Uranium), and minister for Trade and Resources, Canberra. Australian Parliament. . Ranger Uranium Environmental Inquiry: Second Report. Can- berra: Australian Government Publishing Service. Batty, P. . “Private Politics, Public Strategies: White Advisers and eir Aboriginal Subjects.” Oceania ( ): – . doi:. / . Bermeo, N. . “Rethinking Regime Change.” Comparative Politics : – . Bermeo, N. . “Democracy and the Lessons of Dictatorship.” Comparative Politics : –. Berndt, R. M., and C. H. Berndt. . Man, Land, and Myth in North Australia: e Gunwinggu People. East Lansing: Michigan State University Press. Bininj Kunwok Project. n.d. “Bininj.” Accessed March , . https:// bininjkunwok .org .au/ ma -karri -wokdi -kundjeyhmi/ bininj/. Brockwell, S., R. Levitus, J. Russell- Smith, and P. Forrest. . “Aboriginal Heritage.” In Kakadu: Natural and Cultural Heritage Management, edited by T. Press, D. Lea, A. Webb, and A. Graham, – . Darwin: Australian Nature Conservation Agency. Chaloupka, G. . Journey in Time: e World’s Longest Continuing Art Tradition; e ,- Year Story of the Australian Aboriginal Rock Art of Arnhem Land. Sydney: Reed New Holland. Cooke, P. . “A Long Walk Home to the Warddewardde.” In People on Country: Vital Landscapes, Indigenous Futures, edited by J. Altman and S. Kerins, –. Annandale: Federation Press. C REATING S PACE ÄÁÅ

Escobar, A. . Territories of Dierence: Place, Movements, Life, Redes. Durham, N.C.: Duke University Press. Gallagher, H. . Etok: A Story of Eskimo Power. Clearwater, Fla.: Vandamere. Garde, M. . Culture, Interaction and Person Reference in an Australian Language. Phil- adelphia: John Benjamins. Gardiner- Garden, J. . “Aboriginality and Aboriginal Rights in Australia.” Back- ground Paper . Department of the Parliamentary Library, Canberra. Gilmour, S. . Mayatja Manta Nyangaku Kutju: Local Government for Aboriginal Com- munities. Alice Springs: Pitjantjatjara Council. Gorman, J. T., A. D. Gri©ths, and P. J. Whitehead. . “An Analysis of the Use of Plant Products for Commerce in Remote Aboriginal Communities of Northern Australia.” Economic Botany (): – . Grant, S. . “ e Politics of Identity: We Are Trapped in the Imaginations of White Australians.” Guardian, December , . Gundjeihmi Aboriginal Corporation (GAC). . is Is Bullshit. Jabiru: Gundjeihmi Aboriginal Corporation. Harris, J. . “Kakadu and Edenic Idealization.” In Community Development rough World Heritage, edited by M.- T. Albert, M. Richon, M. J. Viñals, and A. Witcomb, – . Paris: World Heritage Centre. Haynes, C. D. . “Deªned by Contradiction: e Social Construction of Joint Man- agement in Kakadu National Park.” PhD diss., Charles Darwin University. Haynes, C. D. . “Seeking Control: Disentangling the Di©cult Sociality of Kakadu National Park’s Joint Management.” Journal of Sociology (– ): – . Howitt, R. . “Aboriginal Social Impact Issues in the Kakadu Region: Report Prepared for the Kakadu Region Social Impact Study and Northern Land Council.” Sydney, June. Ivory, B. . “Indigenous Leaders and Leadership.” In Contested Governance: Culture, Power and Institutions in Indigenous Australia, edited by J. Hunt, D. Smith, S. Garling, and W. Sanders, –. CAEPR Research Monograph . Canberra: ANU E Press. Kakadu Region Social Impact Study. . “Kakadu Region Social Impact Study: Com- munity Action Plan. Report of the Study Advisory Group.” Canberra, July. http:// www .environment .gov .au/ science/ supervising -scientist/ publications/ krsis -reports/ krsis -community -action -plan -report -study -advisory -group. Keen, I. . “ e Alligator Rivers Stage II Land Claim.” Northern Land Council, Darwin. Kerins, S. . “Caring for Country to Working on Country.” In People on Country: Vital Landscapes, Indigenous Futures, edited by J. Altman and S. Kerins, – . Annandale: Federation Press. Lawrence, D. – . “Managing Parks / Managing ‘Country’: Joint Management of Aboriginal Owned Protected Areas in Australia.” Research Paper . Department of the Parliamentary Library, Canberra. Lawrence, D. . Kakadu: e Making of a National Park. Melbourne: Miegenyah Press of Melbourne University Press. Levitus, R. . Everybody Bin All Day Work: A Report to the Australian National Parks and Wildlife Service on the Social History of the Alligator Rivers Region of the Northern Territory, ¨– . Canberra: Australian Institute of Aboriginal Studies. ÄÁ¼ J USTIN O’BRIEN

Levitus, R. . “ e Boundaries of Gagudju Association Membership: Anthropology, Law and Public Policy.” In Mining and Indigenous Peoples in Australasia, edited by J. Connell and R. Howitt, – . Sydney: Sydney University Press. Levitus, R. . “Land Rights and Local Economies: e Gagudju Association and the Mirage of Collective Self-Determination.” In Culture, Economy and Governance in Aboriginal Australia, edited by D. Austin- Broos and G. Macdonald, – . Sydney: University of Sydney Press. Macdonald, G. . “Colonizing Processes, the Reach of the State and Ontological Violence: Historicizing Aboriginal Australian Experience.” Anthropologica (): – . doi:. /. Merlan, F. . Caging the Rainbow: Places, Politics, and Aborigines in a North Australian Town. Honolulu: University of Hawai’i Press. Nadasdy, P. . Hunters and Bureaucrats: Power, Knowledge, and Aboriginal- State Rela- tions in the Southwest Yukon. Vancouver: University of British Columbia Press. NAILSMA (North Australian Indigenous Land and Sea Management). n.d. “Carbon/ Fire Management.” Accessed March , . https:// nailsma .org .au/ programs/ economic -development -and -employment/ carbon -ªre -management. O’Brien, J. . “Canberra Yellowcake: e Politics of Uranium and How Aboriginal Land Rights Failed the Mirrar People.” Journal of Northern Territory History :– . Poluha, E., and M. Rosendahl, eds. . Contesting “Good” Governance: Crosscultural Perspectives on Representation, Accountability and Public Space. E-reader version. New York: Routledge. Press, T., D. Lea, A. Webb, and A. Graham, eds. . Kakadu: Natural and Cultural Heritage Management. Darwin: Australian Nature Conservation Agency. Roscoe, P. . I Spend, erefore I Am: e True Cost of Economics. London: Viking. Rowse, T. . “Indigenous Citizenship and Self- Determination: e Problem of Shared Responsibilities.” In Citizenship and Indigenous Australians: Changing Con- ceptions and Possibilities, edited by N. Peterson and W. Sanders, –. Cambridge: Cambridge University Press. Scambary, B. . My Country, Mine Country: Indigenous People, Mining and Develop- ment Contestation in Remote Australia. Canberra: ANU Press. Scott, J. C. . Weapons of the Weak: Everyday Forms of Peasant Resistance. New Haven, Conn.: Yale University Press. Smith, D. E. . “Cultures of Governance and the Governance of Culture: Transform- ing and Containing Indigenous Institutions in West Arnhem Land.” In Contested Governance: Culture, Power and Institutions in Indigenous Australia, edited by J. Hunt, D. E. Smith, S. Garling, and W. Sanders, – . Canberra: ANU Press. Smith, D. E. . “Cultures of Governance and the Governance of Culture: Indigenous Australians and the State.” PhD diss., Australian National University, Canberra. Smith, D. E., and J. Hunt. . “Understanding Indigenous Australian Governance— Research, eory and Representations.” In Contested Governance: Culture, Power and Institutions in Indigenous Australia, edited by J. Hunt, D. E. Smith, S. Garling, and W. Sanders, – . Canberra: ANU Press. C REATING S PACE ÄÁ½

Sullivan, P. . Indigenous Governance: e Harvard Project on Native American Eco- nomic Development and Appropriate Principles of Governance for Aboriginal Australia. Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies. Trebeck, K. . “Corporate Responsibility and Social Sustainability: Is ere Any Connection?” In Power, Culture, Economy: Indigenous Australians and Mining, edited by J. Altman and D. Martin, – . Canberra: ANU Press. UNESCO World Heritage Centre. n.d. “ e Criteria for Selection.” Accessed March , . https:// whc .unesco .org/ en/ criteria/. Warddeken Land Management Ltd. . “Annual Report – .” Warddeken Land Management, Darwin. Weaver, S. . “ e Role of Aboriginals in Management of Australia’s Coburg (Gurig) and Kakadu National Parks.” In Resident Peoples and National Parks, edited by P. C. West and S. R. Brechin, – . Tucson: University of Arizona Press. Whitehead, P. J. . “A Savanna Burning Project for Kakadu? A Preliminary Exam- ination of Issues and Challenges.” North Australian Indigenous Land and Sea Man- agement Alliance, Darwin.

LAND, PUBLIC TRUST, AND GOVERNANCE

A Nez Perce Account

Î®«¯µ ®. ¶«° ±·®¯

CIENTISTS AND anthropologists have relied on carbon and mathematics to estimate that the Nez Perce people have lived on this continent for Swell over ten thousand years. Our own opening chapter clocks us in even earlier: since time immemorial. Long before written history, long before Europeans came to this continent, we had exclusive use and occupancy on a homeland spread over thirteen million acres of North American land, consisting of high mountain peaks, prairies, and deep river canyons. It is a landscape that still stirs the soul. Our villages were scattered across portions of what today are the American states of Idaho, Ore- gon, and Washington. While we were united by blood and language, each of our bands was autonomous, exercising its own judgment independently of the others. Our world was large. We traveled east to the plains to hunt bison and ªshed for salmon far down the Columbia River to the west, forging alliances with other tribes, alliances that exist to this day. When the French fur traders ªrst encroached on our homeland more than two hundred years ago, they called us Nez Perce because they mistakenly thought we pierced our noses. e name stuck, and today that is how we are recognized by the United States. e European settlers who followed came for the abundant natural resources on our lands, including the gold that eventually was discovered there. We resisted these encroachments on our lands, but we L AND, P UBLIC T RUST, AND G OVERNANCE ÄÁ¿ could not stop every intrusion. rough a series of treaties our reservation was reduced to its present size of , acres, but we still retain ancestral rights to hunt, ªsh, and gather traditional foods and medicines across our homeland. e United States was not done with us—it divided our reservation into pieces and opened up much of it to homesteaders, making us a minority landowner and minority resident on our own lands. Today, our political boundary remains intact, but it is not without jurisdictional and, at times, racial con¢ict.

WHO MANAGED WHOM?

We all live in a natural world. For us, as for so many tribes, the natural world remains a mainstay of tribal existence and identity, from the Keepers of the Forests in the Midwest hardwoods to the western rain forests where the canoe builders still practice their craft; from Sierra Blanca, the snowcapped birth- place of the Mescalero Apache, to the spruce forests that wrap life-sustaining resources around the Village of Galena in the deep interior of Alaska. Some people say that the American Indian was the ªrst natural resource manager on this continent, long before Europeans arrived. Perhaps so, but I often wonder: who managed whom? For thousands of years, our ancestors kept a special relationship with the land, knowing that our livelihood depended on the bounty of the rivers and seas, the prairies, tundra, and forests. e land nourished us with food and water, healed us with medicines, gave us the tools we used every day, gave us the places where we could strengthen our spirits and educate our children, and taught us who we were. We responded to the turning cycles of the lands and waters. We did not make the salmon run or the berries and medicines grow. When the salmon returned to the healing waters of their birth, we followed. When the roots and berries returned to the high country, so did we. e animals and the seasons told us when it was time to hunt. ey told us where. We watched and listened and learned, and our observations and interactions shaped our relationship to the land. In other words, nature managed us. Our interaction with nature in¢uenced how we organized ourselves, through the allocation of roles and responsibilities in our communities. Stephen Cor- nell () describes the three core processes of nationhood as identifying as a nation, organizing as a nation, and acting as a nation. Our relationship with nature shaped our organization and actions, such as compliance with the laws of ÄÁÀ J AIME A. P INKHAM when to harvest; it directed our external relationships with other tribes through commerce and the development of political alliances to share and protect our territories. I imagine the early explorers who visited our homelands took back tales of how the land was both full and empty: ªlled with limitless resources yet empty in appearance, with plenty of room for expansion. It prompted a rush of indulgence that outstripped nature’s capacity to deliver. Instead of letting nature manage them, the newcomers undertook not only to manage nature but to dominate it, to force it to submit to their purposes. Fish and wildlife were devastated without regard for future generations. Logging, mining, and agriculture tore into the earth, poisoning waters and destroying habitat. Tribal people were driven from their homes and clustered on reservations that shrank over time. Ironically, the explorers eventually proved right. e lands became full but now with industrialization, urbanization, and toxins. And our lands have become empty as resources diminished, some of them withering toward extinction. Tribes themselves remained targets as non-Natives attempted to ¢eece our lands and restrict tribal resource consumption, including uses protected by treaties with the United States. A long winter settled over the tribes. But the connection to the land never diminished. In time, this very connection to the land helped fuel a turnabout in the destinies of American Indian nations.

MAKING COMMUNITIES WHOLE

Native nations have various pillars that support the welfare of our citizens and our homelands. One, for example, is kinship: family and clan, our relationships with each other. Another is the pillar of language and culture, the understanding we share about who we are and how we should behave. One is the pillar of governance: our ability to act as a collective, to develop the rules and roles through which the nation can pursue its dreams and protect its interests. Yet another pillar is our relationship to the land, our connection to place and to all our relatives, human and nonhuman, who share this place with us. We depend on these and other pillars as keys to our survival and success as peoples. I am a onetime forester who strayed from home. I wore suspenders etched with “Loggers World” and “Stihl Chainsaws.” I laid out logging roads and clear- cuts, burned the slash, sprayed the weeds, and put out the ªres. L AND, P UBLIC T RUST, AND G OVERNANCE ÄÁÁ

As I grew weary of practicing industrial forestry, the Nez Perce Tribe entreated me to return home to assist with the natural resources issues that play such an important part in our lives. On November , , the chairman of our tribal council ¢ew in to visit me at my o©ce in Portland, Oregon. at morning at the Lewiston, Idaho, airport, he had picked up a copy of the local newspaper, the Lewiston Tribune. He walked into my o©ce, tossed it on my desk, and asked, “You willing to deal with this?” e front page reported how LSD—acid—was making inroads on the reservation (Pettit ). A forester might ask, “What’s the connection?” What he was testing was my understanding that a healthy, sustainable, natural environment is intimately tied to a healthy, functioning, human community. I accepted his challenge and moved home to manage the nation’s natural resources department. At the time, the tribal unemployment rate hit percent in the winter. About percent of those who worked earned less than USÇ, a year. I realized that we needed to look to our forests as a mainstay of our survival, as essential to our future. ey were essential to our nourishment, education, spiritual connectivity, and recreation. Timber and grazing revenues could fuel tribal government while the land itself could help make our communities whole again. e Center for Whole Communities describes success in land conservation as action that fosters “active lifestyles; informs the social, emotional and spiritual development of our children; provides democratic gathering spaces that build community” and a “sense of fairness”; “creates economic opportunity; ensures the healthy systems of life upon which humans depend”; and helps deªne “what it means to be a citizen” (). You can apply these ideals to all the pillars I have mentioned above, and others as well. Our oral history tells us that we encountered hardships long ago and that life sometimes was burdened by stress and scarcity. But we responded to these hardships, and our community was never less than whole. We relied on social and cultural infrastructures to help us through the hard times—factors that contribute to the highest measure of wealth for a Native society. A friend of mine, Mary Wood, teaches natural resources and federal Indian law at the University of Oregon. She has written widely about the public trust doctrine—the idea that there are certain natural resources such as air, water, sea- shore, and others that government has a responsibility to preserve and manage in the public interest and for public use. Wood describes this doctrine as one of the oldest and most fundamental governing principles connecting people to the ÅÃÃ J AIME A. P INKHAM natural world. She writes, “As the world has understood since time immemorial, a government that fails to protect its natural resources sentences its people to misery” (Wood , ). She also pointed out that, as the ªrst sovereigns on this land, tribes at one time performed as trustees on behalf of the collective interest, providing for the welfare of both people and land. In other words, there was a time when tribes were the sole trustee, carriers of the public trust. We tend these days to look to federal or state governments to carry that public trust, to ªx whatever is wrong with our natural resources. But we, as Native nations, need to demand more of ourselves. We need to ask, “What is our trust responsibility to our citizens? What is our trust responsibility to the natural world?” is is not to say that the federal and state governments should be let o¤ the hook. I am saying that we have a timeless and moral obligation to assume a Native public trust. Rebuilding our Native nations has to include a resurgence in that trust, relying on our rights of self-rule to address the needs and expectations of our citizens and of the land, and the relationship between them.

RESTORING THE LAND AND THE PEOPLE

One of the ªrst projects we launched when I moved home was the reintroduction of gray wolves to Idaho. In the mid-s, the U.S. government moved to reintroduce gray wolves to parts of their historic range, including a majority of the Nez Perce ancestral homeland in central Idaho. Typically in such species- recovery actions, the federal government partners with state agencies in implementation. But in Idaho, the state wildlife agency had to get legislative approval for any recovery plan, and Idaho is a conservative state. e legislature moved to halt this nonsense about returning wolves to the state. e Nez Perce were on the other side of this debate, favoring wolf reintroduction. After all, the history of the Nez Perce and the history of the wolf mirrored each other. As the Euro-American trailblazers sought to tame and bring order to the frontier, they attempted to rid the land of barriers and threats to their way of life. e Nez Perce and the wolf were obstacles. We both were dispossessed. roughout the discussion of wolf recovery, the Nez Perce—a potential partner to the federal government—had wanted a place at the table, but we had been ignored. But when Idaho said no, the federal government could no longer look away. An obvious option was to deal with us. L AND, P UBLIC T RUST, AND G OVERNANCE ÅÃÂ

We began exploring a relationship with the federal government to take on the task. Originally we attempted to reach a partnership through the Indian Self-Determination and Education Assistance Act of (Public Law - ), since we were dealing with an agency within the Department of the Interior. However, the agency was taking a very limited interpretation of how the Self- Determination Act applied to wolf recovery, their trust authority, and the scope and territory involved. When we encountered restrictions around their authority, we relied on our tribal authorities instead to design a di¤erent relationship. We crafted a cooperative agreement outside the Self-Determination Act that enabled us to manage reintroduction across the state versus being limited in task and territory. Despite initial federal skepticism, we not only put together a partnership agreement but took responsibility for managing a controversial task in a hostile political landscape. It was the ªrst time in the United States that a Native nation took the statewide lead in the recovery of a species under the federal Endan- gered Species Act—not just any species but an apex predator. We had to build the capacity to introduce, monitor, manage, and protect gray wolf populations in a vast wilderness region. We succeeded. We proved that we could gear up enough capable science, technology, and political savvy to manage the e¤ort. With an abundance of habitat, the wolf population grew rapidly toward the target recovery goals. In less than ªve years we had healthy packs and the target level of breeding pairs. e Nez Perce had brought our relative—the wolf—back to our homelands. Twenty years later, the tribe remains involved with the program. Yet, to me, the greatest outcomes were justice and equity. Both the wolf and the Nez Perce regained our rightful place not just physically but also socially, politically, and spiritually as occupants on lands from which we both were once removed. We made ourselves felt in other areas as well. Our treaty-reserved rights include access to and use of land, water, ªsh, wildlife, and air, and we have taken an active management role wherever we could. Because salmon are fundamental to our lifestyle, we deliver tribally run, state-of-the-art salmon recovery and protection programs that include research, habitat restoration, production facilities, and harvest management. Our ªsheries program manages two salmon hatch- eries and multiple acclimation sites, to help another endangered species whose spawning runs have been devastated by overharvesting in international waters, the loss of habitat, and drastic changes to the river through hydro-energy development, pollution, irrigation, and ¢ood control. e tribe has led the ongoing ÅÃÄ J AIME A. P INKHAM recovery of the Chinook salmon, with fall Chinook runs on the Snake River recovering from a low of around adult returns in to sixty thousand in . We can tell a similar story about Coho salmon. anks in large part to tribal e¤orts, these salmon have rebounded in the Snake River to such an extent that, for the ªrst time in living memory, both Natives and non-Natives can ªsh the Snake for Coho again. We have been aggressive as well in land acquisition, ignoring both reservation and state boundaries and buying land across a three-state area for wildlife habitat and to reestablish tribal access to traditional sites.

THE PILLAR OF GOVERNANCE

Our relationship to the land is not the only key to what we have done and try to do for our people. Our ability to do these things has depended on a fundamental pillar of survival and success: governance. When we decided to take the lead in the gray wolf recovery program in the state of Idaho, we knew we had our work cut out for us. is was an exercise in self-determination and a statement about sovereignty: we had entered into a government-to-government relationship with the United States on behalf of the wolf and ourselves. In doing so we asserted our right to manage our lands and our relationships with the wildlife, other resources, and spirits within those lands. But the challenges were enormous. Some were technical, having to do with hands-on processes of animal transfer and introduction, breeding, monitoring, and so forth, and the skills required by those processes. Some were organizational and managerial, about building the organizational capacity within the tribe to sustain a major wildlife management e¤ort. Some were political, having to do with our relationships with a hostile state government and skeptical publics, including some of our own citizens. We tackled them all. In the Harvard Project on American Indian Economic Development, which took a close look at the program, awarded the tribe high honors in a program called Honoring Nations, which identiªes and celebrates examples of excellence in tribal governance. Among other things, their case account noted:

e Tribe . . . has adeptly addressed the political sensitivities of wolf recovery. rough an e¤ective combination of outreach, communication, and coalition building, the Tribe’s recovery program has been able to make substantial progress L AND, P UBLIC T RUST, AND G OVERNANCE ÅÃÅ

in responding to livestock producers’ concerns. In its work with these and other stakeholders, the Tribe has e¤ectively coupled a neutral political position with an active commitment to answer concerns, develop solutions, and defuse con- ¢icts— an accomplishment that has won the Nez Perce respect in many circles. Similarly, in its work with the general public, the Tribe’s goal has been to educate and assuage concerns. (Harvard Project on American Indian Economic Devel- opment , )

ere were cultural e¤ects as well. As the wolf returned, so did some of the cultural practices that, in the absence of the wolf, had been fading. Naming ceremonies began to include wolf-related names again; the old stories that for generations had told of the relationship between wolves and the Nez Perce, stories that had nearly disappeared, were being told again. All of this, as well as the work we did on salmon, on land acquisition, on forest management, and a dozen other things, required focused work. It was not enough to simply claim the right to do things our own ways. We had to be good at it, as good as—if not better than—those who had displaced us. We had to be able to build new relationships both within the tribe and with outsiders, and deliver on our promises. e problem we faced was a messy system of governance and management. When I was on tribal council, the council hired and ªred people. It approved travel, purchases, and pay raises. We were the arbitrator of grievances among employees. We were the problem solver of choice for everyone. At the same time we were defenders of treaty rights and sovereignty. Whatever the problem or task, people expected the tribal council to do it. Nobody could do it all, but we tried, and often the results were not pretty. Previous tribal councils had become accustomed to overseeing day-to-day operations across the whole of the tribe’s activities. is was retail politics: one- constituent-at-a-time management decisions that ate up enormous amounts of council energy. ere is comfort in micromanagement, but it stole precious time and attention away from the bigger policy issues facing the nation. For- tunately, as tribal government expanded and grew more complex, Nez Perce citizens began to demand that the council quit micromanaging. Two changes were needed: we had to change our expectations of ourselves as councillors; and we had to change the community’s expectations of the council. We needed to allocate responsibilities to those most qualiªed to carry them and clarify roles as leaders and as sta¤. ÅÃ¼ J AIME A. P INKHAM

We overhauled the tribal bureaucracy and delegated more management decisions to program managers. We created a new management structure with an executive director overseeing the governmental side and an executive o©cer handling the nation’s enterprises. We revamped our ªscal and human resources manuals to delegate the routine responsibilities to senior managers. We delegated, strengthened rules, assigned accountability, and spelled out the consequences for doing it wrong. e reforms created a system that was by no means problem-free, but it helped clarify roles, streamlined decisions, rewarded skill and enterprise, and was more e¤ective at retaining talent, including our own: Nez Perce citizens with skills to o¤er in service to the nation’s goals. We learned that ¢exing our sovereignty muscles required us to develop our governance muscles as well. Otherwise, we would squander opportunities to expand the nation’s power and authority. We needed to become experts in ªsh- eries science and the biology of wolf recovery. We became e¤ective managers of the rivers and the habitat and built state-of-the-art ªsheries programs that rival those of other states. We created capable institutions, including laws and a court system, that could back up our treaty interests and our claims to the land. When we did these things, it put us on a more level playing ªeld in the courts, in the marbled halls of policy, and in the rivers and on the land itself. It was an e¤ective defense of sovereignty and of the relationships that our people cherish. We also have had to learn how to negotiate. American Indian nations often have responded to con¢ict by looking to the courts to protect their interests. ere is a time for litigation, but we should not be afraid to negotiate to resolve our di¤erences. Negotiation and litigation are both tough routes to take, but the di¤erence can be found in the outcomes. Negotiation can help us harmonize our di¤erences, build relationships, and secure mutual beneªts compared to the winner-takes-all outcomes of litigation. I was engaged in two strenuous negotiations that resulted in outcomes beyond what a courtroom could produce. One was a long-term settlement with a private utility whose hydro operations had depleted our ªshery, and the other was one of the largest Native water settlements in the United States, the Snake River Basin Adjudication. e outcomes not only beneªted the tribe but had a positive impact on our neighbors as well. One of my takeaway lessons from this is that we cannot view ourselves solely as leaders of our tribal nations. Non- Native citizens also can learn to look to us for leadership. L AND, P UBLIC T RUST, AND G OVERNANCE ÅÃ½

LOOKING BACK, LOOKING FORWARD

When I look back to my days on the tribal council and as a natural resources manager for my nation, I recognize that everything we accomplished had purposes not found on a spreadsheet. Building casinos was not only about revenues, as much as we needed those. It was also an expression of sovereignty and an e¤ort to provide jobs so that tribal citizens could care for their families. Bringing wolves home to Idaho was not just about biology. It also was about restoring a tribal voice to the land. Regaining lands in northeast Oregon was not just about wildlife mitigation but about rebuilding a homeland. Salmon recovery was not just about science or ªsh. It was about a strong will to preserve a culture. And hunting bison again was not just about the exercise of a treaty right. It was about renewing tradition and preparing our youth to declare their allegiance to the land and to the generations yet to come. It has all been about the same thing: saving a homeland and rebuilding a strong, stable, tribal nation.

REFERENCES

Center for Whole Communities. . “Whole Measures: Transforming Our Vision of Success.” http:// wholecommunities .org/ wp -content/ uploads/ / / WholeMeasures .pdf. Cornell, S. . “Processes of Native Nationhood: e Indigenous Politics of Self- Government.” International Indigenous Policy Journal (): – . doi:./ iipj..... Harvard Project on American Indian Economic Development. . Honoring Contri- butions in the Governance of American Indian Nations: Tribal Governance Success Stories. Cambridge, Mass.: Harvard Project on American Indian Economic Development. Pettit, D. . “Acid Comeback: Teens Turn Again to Drug of the ’s.” Lewiston (Idaho) Morning Tribune, November . Wood, M. C. . “EPA’s Protection of Tribal Harvests: Braiding the Agency’s Mis- sion.” Ecology Law Quarterly (): – . CONCLUSION

Building Yourself and Your Community

Ç®¹¹» ¯ µ¹±µ¬

HIS CHAPTER was written from my experience (thus the notable lack of references), which has been very rich and re¢ects a positive lifetime Tof being and living as an Indigenous person (Tahltan from the Etzenlee family and a member of the wolf “Ch’ioyone” Clan), as well as a professional forester, an entrepreneur, an organizational developer, but mostly a social engineer. One of our realities is that when you work with the Indigenous community, where you start often ends up being a very small piece of where you end up. While I have done a lot of personal research on building community, studied many other people’s journeys, and have been directly involved in building and running most aspects of community and government, I still feel like I mostly just fumble in the dark. at is the nature of this beast: learn, make it up as you go, get smarter at dealing with the unknown, and try to pass on what you can. is discussion is organized into two parts. e ªrst talks about how to build yourself—after all, everything starts from there. e second o¤ers thoughts about how to approach the task of community building and governance development. I will probably say a lot of the same things that have been said in this book; however, I o¤er it in the hope that some of this might ring true from a practitioner’s perspective. C ONCLUSION ÅÃ¿

HOW DID WE GET HERE?

Most Indigenous populations of the world have been colonized by others. is process of colonization has generally followed a very similar pattern, but I will use Canada as an illustrative example since it is what I am most familiar with. Canada was originally settled as a large economic enterprise; namely, the fur industry through the Hudson’s Bay Company and the Northwest Fur Trading Company. ere was a deep, interdependent, and mutually respectful relationship between the settlers and the Indigenous peoples: in Canada a new tribe of people emerged from this relationship—the Métis. However, when Can- ada confederated something changed. Perceptions toward Indigenous societies changed to people who are “less than,” “not capable of integrating into society,” and “not capable of building an organized and sophisticated society.” is “dumb Indian” stereotype became a societal norm and shaped Indigenous government, intergovernmental relationships, public policy, programs and services, and pretty much every other aspect of Canadian-Indigenous society. In Canada, we are now moving through a phase in our growth as a country where we are collectively beginning to understand and expose this paradigm, and it is frankly an embarrassment to Canadian society. ose of you familiar with the fable “ e Emperor Has No Clothes” can probably see the parallels. It is embarrassing when you ªrst see it but you do not know what to say; then someone says it and once it is exposed you cannot go back—you cannot “unsee” it. Canada is in the process of decolonizing, but it is a di©cult and windy path. Two hundred years of history do not change overnight. It is engrained so deeply that it is almost like the air we breathe. Everyone shares this air; therefore, we must all grow out of this paradigm together. e ironic aspect is that the transition to a new paradigm may take longer among much of the Indigenous population. Entrenching and breathing life into the belief that we are capable—changing our imposed dependency mind-set, ridding ourselves of feelings of victimhood and marginalization, and building our abilities to create new society—is a di©cult and often elusive task. But this is the path—it must start with believing and shifting our collective paradigm to this new reality. Self-government happens in the mind long before it becomes reality. ÅÃÀ G ARRY M ERKEL

BUILDING YOURSELF

Man is an animal therefore is subject to certain and predictable behaviors at an individual and mass scale. UNKNOWN

e path to self-determination and self-government starts with individuals who make the e¤ort to develop a new paradigm, acquire the necessary skills, and learn to put those skills into practice. is is mostly a human process— professional skills simply support the process. As humans, as much as we try and want to believe that we are di¤erent, at the root level we are all the same. Everyone must go through their own parallel processes and yet each follows a similar path to grow out of this paradigm, including those whom you perceive as your enemy. Enlightenment and personal development cannot be imposed— they must be earned. e current situation that we ªnd ourselves in took generations to become daily reality; therefore, moving to a new place will likely also take generations. Your children will become what they see so the best thing you can do for them (and the overall process) is to model the behavior that you aspire your society to become. is is the true manifestation of the old saying “Fake it till you make it.” One big advantage that we have as Indigenous peoples is that we understand that we have the power of time on our side. Outside governments are run by people who are measured by and are continually striving toward maintaining short-term power or achieving short-term goals. We have our roots; and my reading of what Sir Tipene O’Regan writes in this book is that culture and roots survive regardless of change. Another beneªt of the value of time and grounding is that each of us can take comfort in the fact that there will always be another me. Almost every Indigenous leader that I know understands that what they say and what they do will be picked up by another when it is time. As much as the process of colonization and associated marginalization makes us angry, we must get back to our understanding that life is not always fair. Life is real, and what happens is often exactly what we did not plan or want to happen. is is an important perspective that we all should remember from our survival-based lives before we were colonized or civilized. Nature does not know good or bad—these are scales that we humans created to help us understand and justify our existence. Injustices will always happen, and people will always C ONCLUSION ÅÃÁ

ªght these injustices. However, when we combine this understanding of nature with a sense of time, we can see that winning the war often involves losing the odd battle (if you are strategic you can pick which ones to win for self-serving reasons), that winning the war is only a step to starting the real work, and that when we win or lose we will still need many allies on the other side (including many who may have been our enemies). One of the more limiting components of this colonization paradigm is the associated feelings of guilt and blame. We must move beyond these feelings and gain understanding and acceptance to make real progress. We cannot get stronger by making someone else weaker, and it is generally easier to be critical and to confuse progress with winning battles. Sustainable societal change requires either a complete conquering by one party, or all sides buying in to a deep, collaborative process. Anything in-between creates a breeding ground for continued resentment, sympathy, guilt, and blame. E¤ective policy makers know that these emotions will inevitably result in unbalanced social policy that must be eventually realigned to re¢ect a more balanced approach. is is not to say that critical thinking and being critical are not needed— they are essential. We must uncover and expose the truths, but we must expose the whole truth. As humans, we are skilled at de¢ecting our own responsibilities by blaming others and only exposing their truths. External governments often blame Indigenous peoples for being obstructionists, inept, and not willing to cooperate. Indigenous peoples often blame outside governments for being paternalistic, condescending, and not willing to cooperate. e real truth lies somewhere in the middle but neither side will acknowledge their truths, so we end up in a never-ending stand-o¤ that hinders our collective progress. In most areas of the planet (except those that are still under forceful occupation), there is more than enough room for Indigenous peoples to build e¤ective governance and community. Indigenous groups may not gain formal recognition from others as bona-ªde governments, but most of the real work is internal anyway. e stronger an Indigenous group’s governance becomes, the more voice that the Indigenous group gains and the more able that group is to gain formal recognition. As we move through our development process, we must understand that almost all humans thrive on positive relationships. It is our responsibility to do our part to foster positive relationships, foster allies, and support others through their enlightenment process. We will need our enemies once we get to the other side, and there are allies everywhere—even in the enemy’s camp. ere is a ÅÂÃ G ARRY M ERKEL saying that applies in this situation, “Be hard on issues—be soft on people.” We grow from positive relationships and we lose huge opportunities by not listening to others, regardless of who and what they are. As we create our new mind-set, we must also develop our experience and skills. You may be the expert or you may be the expert on experts. Whatever your situation, you need to develop both soft and hard skills. ere is no substitute for skills and hard work—the individuals who contributed to this book are prime examples of that adage. One of the most important skills that a person can have in the business of community and governance development is the ability to chart a path through the unknown. is is a skill that is learned from a history of working in the unknown. When you are faced with a choice of taking the comfortable or taking the choice that is going to stretch your boundaries, choose the stretch. Over time your ability to chart a path through the unknown will improve and your associated organizational development, relationship building, human understanding, and management skills will also develop. Like a blind person who is skilled at learning new environments, your ability to use your “uncertainty” toolbox will become an essential skill. As you move through these uncharted paths, take every opportunity available to surround yourself with experts and to develop new skills (writing, computers, analysis, facilitation, personnel, organizational design, personal development— the list is immense). If you ªnd yourself thinking that you know everything, then it is time to reset. e irony is that the more you know, the more you understand that you do not know. One of the sure signs that a person does not know something is when their lack of conªdence manifests in portraying that they know everything and are above learning.

GETTING THERE

DISCIPLINE

Beyond developing yourself, there are many considerations when building community and governance; one of the most important is the development of discipline from both a governance and a personal perspective. It is quickly becoming common knowledge that governance is the most important factor for success in developing communities; however, it is important C ONCLUSION ÅÂÂ

FIGURE C.1. e role of governance disipline.

to drill down into the elements of governance to help us focus our priorities in the right places. Governance can be viewed as three major components as illus- trated in ªgure C.: the tools or instruments of governance; the processes that use the tools of governance; and the discipline applied in the use and ongoing development of tools and processes. Discipline is the most important component. A government can operate extremely e¤ectively with a high level of governance discipline and relatively poor tools, while another government can operate extremely ine¤ectively with a low level of governance discipline and the best tools in the world. In the perfect world, a fulsome governance system has built-in measures to ensure that the system continuously develops and applies its discipline at a high level. ere is also a high degree of personal discipline required in creating e¤ective governance. Building government is not sexy work—it is grunt work that involves an obsessive attention to detail and process, developing what often seems like endless governance instruments, and continually pushing and rethinking everything. Consider the sports analogy where good is about talent and equipment—and great is about adding work and discipline.

PATHS

You often hear the saying “Rome wasn’t built in a day.” is rings so true when rebuilding Indigenous communities. e numerous side e¤ects of colonization— such as the sense of victimhood, marginalization, and associated hopelessness; ÅÂÄ G ARRY M ERKEL very limited access to organizational and personal development opportunities; lack of opportunity to build experience at governance, exercise authority, and build economies; high negative social impacts, including abuse in all forms plus many other obstructive factors—present a task that is daunting to even the most skilled leaders and social engineers. e task is so overwhelming, and the path is so unclear that almost all Indig- enous communities need to pick one (or possibly a few) areas that they can focus on while spending much less e¤ort on other areas. Some are so overwhelmed that they become paralyzed and ªnd it hard to even focus on one area. A community’s choice of focus depends on its cultural history (what its members are inherently good at), the community’s perception of what is needed right now, the priorities and skills of the people involved in making these decisions, and what the community can ªnancially support (which is often hugely in¢uenced by outside parties in the early stages). e following are the more common major areas on which a community focuses its e¤orts. Nation Building: is essentially involves ªnding and rebuilding yourselves as a people. is is often di©cult because many communities have become so used to the external deªnition that their colonizers have imposed. Everyone’s path is di¤erent, and this book provides many ªrsthand accounts from groups who are working their way along this path, including the Huu-ay-aht, Salish and Kootenai Tribes, Ngāi Tahu, and Nez Perce. Common activities include understanding and making it a priority to practice historical governance (structures and ways of making decisions), ties to lands, beliefs, and traditions. Community Wellness: is involves moving beyond simply dealing with the unhealthy symptoms in a community through various counseling programs or taking a more holistic community wellness approach. Communities often combine a series of initiatives such as reintegrating traditional cultural teachings and practices, providing various types of individual counseling (e.g., substance abuse, anger management), teaching parenting skills (which have often been weakened through the colonization process), developing individuals into meaningful lives and livelihoods, and fostering physical activity and sports. Land Stewardship: is involves rebuilding the community’s historic relationship to its traditional lands by gaining authorities, developing intergovernmental land stewardship relationships, and building internal land stewardship capacity. Most communities that choose this path continuously improve their skills and abilities to blend traditional and contemporary land management C ONCLUSION ÅÂÅ

FIGURE C.2. Vision. systems through clear articulation of their land values, integrating these values into land management policy and practices, blending local and scientiªc knowledge, adopting historic communal land law (sometimes called natural law or Indigenous law), and developing e¤ective ways of gathering and using wisdom from the community at large. Economy: is involves building a self-reliant economy by maintaining a clear focus on the overall economy and ¢ow of goods and services within the community (although it still often includes a signiªcant economic development component). Many communities use their land rights as leverage to underpin the development of their economy through agreements with government and industry. More comprehensive versions of these agreements foster development certainty and positive e¤ective working relationships between the parties, provide direct beneªts to the community (e.g., revenue, equity participation, jobs, contracts, secondary goods and services opportunities, capacity funding), and directly involve the community in minimizing impacts to the community and its traditional lands. In this book, Ken Coates and Carin Holroyd provide a good summary of the various types of these agreements. Some communities choose more contemporary approaches such as developing their fee simple lands or building business ventures. Regardless of their approach, communities that experience the least internal con¢ict ªnd a way to develop their economy in a way that remains grounded in community-approved development principles. ÅÂ¼ G ARRY M ERKEL

Governance: is essentially involves the subject matter of this book, although it is surprising how few communities have chosen to make this a priority. However, as the knowledge that e¤ective governance is the primary determining factor for success in developing communities becomes more widespread, more and more communities are adding governance development to their list of priorities. We can lump and split these categories—like whether education is a major category or a part of community wellness—but the important point in this discussion is that rebuilding colonized Indigenous communities is a multidimen- sional and complex task. e most successful communities that I have been involved with have dealt with many, if not all, of these major areas. It is inter- esting that a lot of outside literature will hail certain communities as full-blown models of success because they have excelled in one of these areas, but in many cases, there are serious deªciencies in one or more of these major categories that lie just below the surface and that continue to plague those communities. e critical understandings are that without e¤ective governance it is di©cult to maintain focus on any priority area for enough time to make enduring change; and that it is almost impossible to try to tackle all these areas simultaneously, even in a limited manner. One commonly accepted convention for describing the ways that self- governance is achieved, including by William Nikolakis in this book, is to separate the general paths into the following approaches:

incremental (the group builds bit by bit over time), transformative (major transformation generally arising from self-government agreements or treaties), or “just- do- it” (the Indigenous community simply organizes itself according to its governance model and somehow the world just conforms).

ese categories are more accurately used to describe how the Indigenous government’s authorities are recognized by the outside world. In practice the actual institution-building process is always incremental. Formal or legal recognition is a bonus, but the real work is in the incremental and di©cult work of building e¤ective governance—there are no shortcuts to doing that work. All the agreements and recognition in the world will not help a group that has not built the necessary governance capacity to e¤ectively exercise its recognized authority. C ONCLUSION ÅÂ½

I am often reminded of how much it takes just to create and e¤ectively implement something as simple as a dog bylaw. e tasks to build this bylaw can include community consultation (often heated), drafting regulation, multiple readings of the regulation and formal adoption; then we move to implementation of the bylaw, which means having the necessary infrastructure in place to accommodate licensing, enforcement, and fee collection while ensuring that the new regulation does not infringe on any higher levels of authority, for example, human rights or animal cruelty. I mentioned earlier that “self government happens in the mind long before it becomes reality.” You must believe, live the belief, build the tools, and repeat until you become an e¤ective self-governing entity. First comes belief, then practice, then possibly recognition. Without belief there is no starting point.

Man often becomes what he believes himself to be. If I keep on saying to myself that I cannot do a certain thing, it is possible that I may end by really becoming incapable of doing it. On the contrary, if I shall have the belief that I can do it, I shall surely acquire the capacity to do it, even if I may not have it at the beginning. MAHATMA GANDHI

e last point I would like to make on the path is that I have met the odd community that is in such a di©cult stage that it cannot even start to compre- hend the need for, let alone focus on, building its governance ability. In these situations, I try to ªnd a core group of individuals who can be converted and use them to help spread and infuse the message into the community. is group must be supported in many ways as its members are often also very fragile and can collapse individually or as a group with little notice. Patience, building a vision, establishing rudimentary governance instruments, and implementing governance discipline are precursors to implementing nation building and community wellness strategies. As the nation-building and community wellness strategies become more e¤ective, you ªnd that the community gets more and more capable of building better and better governance. It is bit like a chicken and egg situation, but the process can be managed with slow and purposeful steps. ÅÂ¾ G ARRY M ERKEL

THE FIT

Mobilizing around a common enemy to a common cause is often a di©cult transformation. We have every right to be angry as colonized Indigenous communities, and it is easy to choose the approach of building a new community and governance system that is purposefully di¤erent from the colonizer’s systems, just because of our resentment for them. We must rise above this tempta- tion and understand that there are many positive ideas and tools in every society, including in the colonizers. Not even considering their ideas or tools without giving them serious and objective consideration amounts to entrenching your victim syndrome into the heart of your community or government. Our own intolerance can become our greatest limitation.

Intolerance betrays a lack of faith in one’s cause. MAHATMA GANDHI

Groups who have had the most success with this transition come to realize that one of their biggest limitations is themselves. Not that there is not still a certain amount of residual resentment but, as stated earlier, moving beyond guilt and blame is essential to healing and becoming your own grounded self. Nikolakis speaks about the di¤erence and attainability of self-government versus sovereignty. Self-government is a very attainable goal whether it is formally recognized or not. A self-governing group with high governance discipline has the tools to shape its society into almost anything that it desires. How- ever, full sovereignty, where a community is like another autonomous country within a country, is extremely di©cult to attain beyond what the host country’s constitution allows. ere have been situations where this has happened— one of the more notable was when India became a separate dominion in the Commonwealth—but those are very unique and isolated situations. Again, one must also ask oneself why one would want to choose this course of action. Is this desire driven by something that makes sense beyond a doubt, in India’s case having a miniscule percentage of non-Indians rule a clear majority of peoples they knew nothing about, or is this purely an expression of anger fueled by unhealed victim thinking? Regardless of the driver, the bottom line is that gaining any level of sovereignty is much more attainable if the group has attained a high level of self-government and has governance discipline. C ONCLUSION ÅÂ¿

ere are also commonly held mantras in the community and governance development ªelds that things must be completely partitioned—one common example is that we must completely separate business and politics—but this principle applies to other areas, including community wellness and government, cultural practices and economics, land stewardship and economics. While this ªrm partition rule is true to a certain extent, the more accurate and e¤ective approach is not a complete separation but rather a respectful, e¤ective, and often deep collaboration between these somewhat indepenspheres. is is done by articulating how these spheres will interact through formal protocols that capitalize on the strength of each and build synergies that help both to achieve their larger community goals, while allowing each to adhere to their individual mandates and avoid crossing over into each other’s spheres of operations and authorities.

SUCCESS AND CHANGE

Famous U.S. country singer Dwight Yoakam is known for his views on success, which I will paraphrase: “You dream your whole life about becoming successful but when you get here it is a lot harder than you ever imagined to manage success than to allow success to manage you.” Managing success and change are essential in community and governance development. Change creates stress, which can create many negative impacts if not done in an inclusive, steady, and systematic way. e more inclusive the process, the more stable and steep the growth curve becomes over the long term. e less inclusive the process, the more likely you are to see major ups and downs and slower growth rates over the long term—dictatorships being the classic example of this highly cyclical slow-growth trend. However, a certain amount of tension is sometimes necessary. O’Regan makes the point that it is more di©cult to make major strides in times of peace. It is often easier to rise to a common enemy than a common cause, and it is much easier to work with passion than it is to work with apathy. At certain points in the development process, particularly in the early stages, it may be necessary to manufacture a common enemy. Some of my more experienced community development friends have learned to purposely create a common enemy, which then provides the fuel (passion) to drive the community development engine. It sounds a bit manipulative, but they do this in as transparent of a manner as possible and they fully disclose what happened afterward. ÅÂÀ G ARRY M ERKEL

One must maintain one’s grounding through this process: grounding in one’s culture, land, family, community, and community-approved principles. ese principles are essentially a checklist that re¢ects the values of one’s community. Many communities develop principles, but very few take them to the next level and use them as a checklist that is continually assessed and the results of the assessment reported publicly to ensure that the community remains accountable to its principles. Applying the full range of community development tools to create an informed citizenry, to fully engage the community, and to remain true to yourself are the most e¤ective means to help manage the tensions associated with success and change.

CLOSING

I will reiterate that this chapter’s thoughts are based on my own experience, but I fully acknowledge that my experience is built on the backs of others, just as the experience of any community who moves through the process of community and governance development will be. A professor acquaintance of mine gives students in his Critical inking course an assignment to write a term paper containing an original thought. He muses about the anxiety and struggle that this creates for his students and is gratiªed when they ultimately learn that there is no such thing as an original thought. We learn from others who have learned as much as they could from those before them. ose who precede us could only see as far as their imagination allowed from the platform where they started, just as our vision will be limited by our imagination and what our predecessors left us. It is sometimes easy to fall into the trap of saying, “ ose predecessors don’t know anything”; however, the truth is that they probably knew a lot in their time—just as you will in your time. Yesterday’s wise are today’s fools when you allow your personal lack of humility and self-conªdence to guide your thinking. Probably the most prominent theme in this piece is that this journey is mostly personal—this is a human process. I have mostly o¤ered ways of thinking and approaching the task but have not provided much information on the associated set of tools that one can use to turn these into reality. My toolbox is limited by my experience just as any other community developer’s toolbox is. Anyone in this business who is worth their salt knows this and makes a con- certed e¤ort to talk to their acquaintances on a regular basis to gain insights C ONCLUSION ÅÂÁ and ªnd new tools for the situations they are facing: “Learn, make it up as you go, get smarter at dealing with the unknown, and try to pass on what you can.” Your e¤ectiveness (and frankly your ability to survive in this ªeld) comes from your ability to adapt and your ability to help others adapt.

It is not the strongest of the species that survive, nor the most intelligent, but the one most responsive to change. CHARLES DARWIN

You can control and manage your path or even your community’s path to some extent, but there will always be things that are out of your control, like climate and world markets. Your resiliency and ability to adapt to change are your biggest strengths when faced with these unforeseen factors. e level of community resiliency is determined by many factors, and almost all of these factors can be tied back to the level of governance discipline, understanding of community development, amount of community engagement, and how well the community is tied into and has built e¤ective relationships with the rest of the world. e community and governance development journey is a long, confusing, and sometimes arduous journey, but the e¤ort is well worth the rewards. I hope that the ideas in this book help you in some small way and wish you only the best in your journey. Meduh.

CONTRIBUTORS

William Nikolakis, PhD, LLB, BBus, is a qualiªed lawyer in both Australia and Canada. He is a lecturer in the Faculty of Forestry, University of British Colum- bia, and the executive director of the Gathering Voices Society, a Vancouver- based foundation focused on building land management partnerships between Indigenous communities and the natural resources sector. His work is focused on Indigenous governance, and sustainability in the natural resources sector. Nikolakis has published in several scholarly journals, including Governance and Organization and Environment, and he is the co-editor of Forests and Globaliza- tion: Challenges and Opportunities for Sustainable Development ().

Stephen Cornell is the faculty chair of the Native Nations Institute at the University of Arizona, where he also is emeritus professor of sociology, emeritus director of the Udall Center for Studies in Public Policy, and a©liate faculty in the College of Law. In , at Harvard University, with economist Joseph Kalt, he founded the Harvard Project on American Indian Economic Development, and he led the development in of the Native Nations Institute at the Uni- versity of Arizona. He has spent most of his career working with Indigenous nations and organizations in the United States, Canada, Australia, and Aotearoa / New Zealand on governance, development, and related issues. ÅÄÄ C ONTRIBUTORS

Harry Nelson is an economist who has worked on forest and natural resources issues with an emphasis on policy and a focus on Canada. He has also had the opportunity to work with Indigenous peoples since becoming involved with researchers while pursuing a graduate degree at Harvard University and examining how certain American Indian tribes were pursuing self-determination strategies. at research led him to the Harvard Project on American Indian Economic Development, where he has continued to work with those researchers since as a research associate; he has also pursued research in British Columbia, where Indigenous collectives have been reasserting their decision- making authority over their a¤airs. is has provided not only an opportunity to explore the applicability of the Harvard Project ªndings in a Canadian context but also to extend that work. Since he has also been a faculty member in the Faculty of Forestry at the University of British Columbia.

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Shaun Berg is a commercial lawyer specializing in the areas of intellectual property and Aboriginal rights. He is currently the principal of Berg Lawyers and has a broad range of experiences in legal practice. Aboriginal rights is one of Berg’s passions and he currently represents two main Native Title groups in South Australia. Berg has researched and written on numerous topics related to Aboriginal rights, most notably in his book Coming to Terms: Aboriginal Title in South Australia (), which reassesses our understanding of the legal mechanisms of dispossession, following the Mabo and Wik judgments, and discusses actions governments must take to overcome the injustice. Berg is currently supporting a community to negotiate the ªrst treaty between the state of South Australia and an Aboriginal Nation.

Ken Coates is the Canada Research Chair in Regional Innovation, Johnson- Shoyama Graduate School of Public Policy, University of Saskatchewan, and Munk Senior Fellow, MacDonald Laurier Institute. He has published extensively on Indigenous rights, Indigenous engagement in the resource economy, and the evolution of Indigenous governance in the Canadian North, including A Global History of Indigenous Peoples: Struggle and Survival (), Arctic Front: Defending Canada in the Far North (), e Marshall Decision and Native Rights (), and From Treaty Peoples to Treaty Nation: A Road Map for All Canadians (). C ONCLUSION ÅÄÅ

Steve Hemming is an associate professor in the College of Humanities, Arts and Social Sciences at Flinders University in South Australia. His teaching and research is interdisciplinary, traversing areas such as treaty negotiations, Australian society, environmental studies, politics, Indigenous studies, and cultural studies. His career began as a curator in the South Australian Museum’s Anthropology Division and since this time he has worked with Indige- nous nations in Australia and internationally. More recently his research has focused on Indigenous nation building, settler colonialism, and environmental management.

Carin Holroyd is an associate professor in the Department of Political Studies at the University of Saskatchewan. She holds a PhD from the Uni- versity of Waikato in New Zealand. Holroyd specializes in national innovation strategies and has been working on aspects of northern governance and Asian engagement with the Arctic. Her most recent book is Green Japan: Environmental Technologies, Innovation Policy, and the Pursuit of Green Growth ().

Sacha McMeeking is Head of School of Aotahi—School of Māori and Indig- enous Studies at the University of Canterbury in Christchurch, Aotearoa / New Zealand. Before assuming this position, she was general manager for strategy and in¢uence with Te Rūnanga o Ngāi Tahu, responsible for government relations on behalf of the iwi. She is also an entrepreneur, having run a successful consultancy working with Māori iwi on strategy development and asset management, as well as cofounding a social enterprise dedicated to growing Maori leadership and entrepreneurial capability.

Garry Merkel is primarily a builder. He works with others to build relationships, organizations, and processes tailored to the unique characteristics and needs of the groups that he works with. He has helped numerous groups better shape their futures through the creation of governments, businesses, schools, various land management arrangements, foundations/trusts, working relationships, and public policy. Garry is often sought out to help groups work through di©cult situations in unknown territory. He adapts a variety of tools, including negotiating, brokering, planning, facilitating, chairing, mediating, strategizing, managing, teaching, or any other professional skill required for each unique situation. ÅÄ¼ C ONTRIBUTORS

Justin O’Brien has been an executive o©cer of the Gundjeihmi Aboriginal Cor- poration since , returning to the corporation after a three-year period away. He was previously the senior policy adviser to the Northern Land Council and a senior policy adviser with the Northern Territory Department of the Chief Minister. O’Brien holds a bachelor of arts degree from Monash University. From to he was the communications manager for the Gundjeihmi Aborig- inal Corporation. O’Brien has worked extensively with Aboriginal communities and has experience in advocacy and media relations and as a journalist.

Sir Tipene O’Regan is a senior kaumatua (elder) of the Ngāi Tahu Tribe in the South Island of New Zealand and the upoko runaka (traditional head) of the Awarua Runaka and Marae, one of eighteen Runaka communities that make up Te Rūnanga o Ngāi Tahu—the shareholding parliament of the Ngāi Tahu Nation. He became involved in his people’s seven-generation-old Land Sea Fisheries claims in the late s. He was the architect of the national Treaty Fisheries Settlements of and and led his people through a long process of litigation and negotiation to the Ngāi Tahu Treaty Claims Settlement of . He is a hugely experienced company director, academic historian, and thought leader who still leads wananga (study groups) within Ngāi Tahu on traditional history and tribal heritage. He founded the internationally recognized Ngāi Tahu Archive in the late s. He lives in Christchurch, New Zealand.

Gwen Phillips is a protégé of Sophie Pierre’s and, in the true fashion of protégés, has far exceeded her mentor through her present-day work in governance both nationally and internationally.

Sophie Pierre served her community of ‘Aqam (St. Mary’s Indian Band) of the Ktunaxa Nation for thirty years, twenty-six as elected chief, and was adminis- trator of the Ktunaxa/Kinbasket Tribal Council for twenty-ªve years. She was recognized with the Order of British Columbia in , the National Aborigi- nal Achievement Award in the business category in , and was inducted into the Order of Canada in . From to her retirement in , she served as chief commissioner of the British Columbia Treaty Commission. She serves on several foundations, including the Pierre Elliott Trudeau Foundation as a mentor, the British Columbia Achievement Foundation, the Vancouver Foun- dation, and the BC Parks Foundation. A hereditary chief and grandmother of four, she spends much of her time as an elder advisor to her community and to the Ktunaxa Nation. C ONCLUSION ÅÄ½

Jaime A. Pinkham is a citizen of the Nez Perce Tribe. He has spent most of his career advocating for tribal sovereignty, self-determination, and treaty rights. He is currently the executive director of the Columbia River Inter-Tribal Fish Commission. From to , he was vice president of the Bush Founda- tion, helping design and implement its program supporting tribes across North Dakota, South Dakota, and Minnesota in strengthening their governing institutions. is work led to the creation of the Native Governance Center, where he was loaned as an executive to assist in its startup. He worked for the Nez Perce Tribe from to and was elected twice to the tribe’s governing body and led the tribe’s natural resources programs.

Daryle Rigney, a citizen of the Ngarrindjeri Nation, is a professor in the College of Humanities, Arts and Social Science at Flinders University in South Austra- lia. He is a board member of the Australian Indigenous Governance Institute and a member of the Indigenous Advisory Council, Native Nations Institute, University of Arizona. Daryle’s academic and community work currently focus on developments in Indigenous nation building and governance following colonization. He has published widely and in¢uentially on these topics.

Douglas Sanderson (Amo Binashii) is a member of the Beaver Clan of the Opaskwayak Cree Nation. He is an associate professor in the Faculty of Law at the University of Toronto. Sanderson earned his juris doctor at the Univer- sity of Toronto and his master of laws at Columbia University, where he was a Fulbright Fellow. He is the decanal advisor on Indigenous Issues at the Faculty of Law.

Diane Smith is an anthropologist with more than four decades of experience working with Indigenous Australian nations, communities, and organizations in remote, rural, and urban locations. She is currently a senior research fellow at the National Centre for Indigenous Studies at the Australian National Uni- versity and a board member of the Australian Indigenous Governance Institute. Smith has carried out ªeld-based research and published widely on Indigenous cultural foundations and jurisdictions of governance, Native title, land rights, development, and organizational governance. She led the groundbreaking Aus- tralian Indigenous Community Governance Research Project and subsequently wrote the learning content for the Indigenous Governance Toolkit—an Austra- lian web-based resource for Indigenous peoples working to build e¤ective and culturally legitimate governance (http://toolkit.aigi.com.au/). ÅÄ¾ C ONTRIBUTORS

Ronald L. Trosper is a professor of American Indian studies at the University of Arizona. His latest work has been on Indigenous economic theory, traditional ecological knowledge, and community-based research methods. He examined the institutions that provided stability for the peoples of the Northwest Coast in his book Resilience, Reciprocity and Ecological Economics: Northwest Coast Sus- tainability (). He co-edited Traditional Forest Knowledge: Sustaining Com- munities, Ecosystems and Bio-cultural Diversity () with John Parrotta. He has worked for the Council of Energy Resource Tribes, the Confederated Salish and Kootenai Tribes, Northern Arizona University, and the University of British Columbia. He is a member of the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation, Montana.

Angela Wesley is a citizen of the Huu-ay-aht First Nations (Nuu-chah- nulth). She has worked extensively within her own community and throughout British Columbia providing advisory and facilitation services in the areas of strategic planning, community development, communications, community engagement, and governance capacity building. When both the Maa-nulth Treaty and the Huu-ay-aht First Nations Constitution came into e¤ect in , she became an active participant in her nation’s transition to self-government. Wesley acts as legislative chairperson for the Huu-ay-aht First Nations Legis- lature and Annual People’s Assemblies and has been the board chair/president for the Huu-ay-aht First Nations Group of Businesses since .

Bradon Willms is a lawyer and associate at Borden Ladner Gervais LLP in Calgary, Alberta, practicing in the areas of commercial and intellectual property litigation, energy and environmental regulation, and administrative law. Willms holds a juris doctor from the University of Toronto Faculty of Law, where he collaborated with his co-author for this publication, Douglas Sanderson. Fol- lowing his graduation, Willms served as a judicial law clerk for the Court of Appeal of Alberta. INDEX

Aboriginal economic development corpora- – ; authority of, , – , , tions (AEDCs), – , – ; autonomy of, ; colonialism and, Aboriginal Heritage Act, , , ; cultural preservation of, – Aboriginal Land Rights Act (ALRA), – ; deªnition of, n; demographics , , n of, – ; disempowerment of, ; Aboriginal title claim, – , , , – , economic development of, – ; education and, ; foodways of, ; agential realism, Kakadu National Park and, – , Apple Bay Quarry: Mining Participation , – ; land claims of, – ; lan- and Royalty Agreement, guages of, ; politics and, ; poverty Arbitration Acts, – , , n and, ; priorities of, – ; religious Areva, – life of, ; social services and, n; assimilation, , , , – n, , , traditional ways of, , , ; values Association of American Indian A¤airs, of, – ; Western land management , policies and, – Attawapiskat, – , , , British Columbia Treaty Process, , Australian Indigenous Community Gover- Bureau of Indian A¤airs, – , , , nance (ICG) Project, – n Bureau of Reclamation, , , n Bininj: Aboriginal land management policies and, – ; Aboriginal- Calder v. British Columbia (Attorney Gen- state relations and, – , , ; eral)[ ] SCR , accusations of disinterest in Kakadu of, Cameco, – , , , 328 INDEX

Campbell et al. v. British Columbia (Attorney hydroelectric dam of, ; Indigenous General) et al., knowledge systems and, – ; land Canada: colonialism and, ; con¢ict of and resource management and, ; land interest of, – ; Constitution of, – rights of, , , – ; membership , n , n, – ; decolonization of, n; non- Indian homesteaders on of, – ; duty to consult of, , – , reservation of, – , , n; pur- – , , – ; Indigenous peoples chase of, –; purchase plan of, – , and, , ; Indigenous peoples of, – ; Se’liš Ksanka Qĺispe’ Dam and, ; ; laws of, ; self- governance in, – ; Se’liš Ksanka Qĺispe’ Dam of, – ; sovereignty of, termination of reservation of, – , capitalism, , – , , – – , – ; treaties of, – ; value Carcross Tagish First Nation, of, – ; water rights of, – “Caring as/for Country,” , , , –, constitutions; of Australia, , ; of , – Canada, , – , n, n , n, , Champagne- Aishihik First Nation, – – ; of the Confederated Salish and Charlottetown Accords, , n Kootenai Tribe, – , n; of the Cobell, , , n Haida, , of the Huu- ay- aht, , , , collaboration agreements, , – , – , n, n, n; Collier, John, , , Indian Act and, ; of Indigenous peo- colonialism: anger and, ; Bininj and, ples, , , , – , , , , –, , ; blame and, ; in Canada, n, n, n , ; of the U.S., ; Confederated Salish and Kootenai ; of the Warddeken, n Tribes (CSKT) and, , , ; decol- Constitution Act (Huu- ay- aht), , , , onization and, – ; guilt and, ; – , – , n, n, n Huu- ay- aht and, – , ; Indige- Constitution Act (Canada), , n nous peoples and, – , – , , ; Constitution Act section () (Can- Kakadu National Park and, ; Māori ada), and, – ; marginalization and, , Council of Yukon First Nations, n, – ; Ngāi Tahu and, – ; Ngarrind- Cree, – , n, , , , jeri and, , , , – , ; resentment Crow Tribe, n, and, ; self- determination and, Columbia River, De Beers, – , , commercial codes, , – , – Delgamuukw v. British Columbia [] Confederated Salish and Kootenai Tribes S.C.R. , , n (CSKT): abolition of tribal council Délınę Got’ınę, , n, n, n of, – ; agency of, ; authority of, Department of Aboriginal A¤airs (DAA), , – ; colonialism and, , , ; constitution of, – , n; Department of Indian A¤airs, dispossession of, ; distribution of Department of the Interior, , , , beneªts from, – , ; education , , and, ; employment and, , –; Des Nedhe Corporation, environmental protections and, , – ; ªnancial protections for, – ; EC- Seal Products, – INDEX 329

Eeyou Economic Group/CFDC Inc., Glamis Gold Ltd. v. United States of America, electricity, –, – , . See also hydroelectric dams; Selis Ksanka Qlispe Grand River Enterpises Six nations, Ltd v. employment: Arnhem Land Progress United States, – Aboriginal Corporation and, –; gray wolves, , – , Confederated Salish and Kootenai Gundjeihmi Aboriginal Corporation, Tribes (CSKT) and, , – ; Huu- Gwaii Haanas National Park, ay- aht and, , – ; impact and beneªt agreements (IBA) and, , – Haida Nation v. British Columbia (Minister , ; Indigenous peoples and, – , of Forests) [] S.C.R. , , , ; Māori and, ; Nez Perce and, ; , self- governance and, – Harvard Project on American Indian Energy Keepers Inc., , , , – , Economic Development, , , – , , n n, English River First Nation, Hell Gate Treaty of , , , n Escondido v. La Jolla Band of Indians, hereditary chiefs: of the Huu- ay- aht, , , , , – ; self- governance and, , Federal Energy Regulatory Commission, – , n, n , – , n , –, –, – , , Honoring Nations, n, Federal Power Commission (FPC), , House Concurrent Resolution , – – , – Hupacasath First Nation (HFN), – Federal Water Power Act, , – Hupacasath First Nation v. Canada (Attorney First Nations: deªnition of, n; sov- General), – ereignty of, , . See also Indigenous Huu- ay- aht: authority of, – , , ; peoples citizenship of, – , , ; claims of, First Nations Major Project Coalition ; colonialism and, – , ; coman- (FNMPC), agement and, ; community engage- ªsheries, – , – , – , , – , , ment and, – , – ; constitution of, , , , , , , – , – , n, n, Flathead Indian Irrigation Project, –, n; cultural preservation of, – , , , , – , , n; culture of, ; dis- Flathead Reservation, – , – , eases and, ; displacement of, , – – , ; dispute resolution and, ; duty to Flying Post First Nation, consult with, , economies of, , , Foreign Investment Promotion and Protec- ; education and, – , , – ; tion Agreement (FIPA), elections and, – , ; employment Fort McKay First Nation, , – and, ; employment of, – ; erasure Free trade agreements, , , n. See of, – ; exploitation of resources also international trade; North America and, – , – , , ; foodways of, Free Trade Agreement (NAFTA) ; genealogies of, – ; goal setting by, , – , , – ; governance Gagudju Association, – , n, n structures and, – ; health care and, Gitxsan, n ; health of, – ; hereditary chiefs 330 INDEX

of, , , , , , –; history of, ; mining and, ; monitoring of, – , , ; housing and, ; Indian ; nation rebuilding and, – ; natural Act of and, , – , , , ; resource development and, – ; natu- Indigenous knowledge systems of, – ral resources and, – ; negotiations , ; land and resource management and, – , ; nonrenewable resources by, ; land rights of, – ; language and, ; resource economy and, ; of, , , , – ; laws of, , ; risks of, , ; self- governance and, leadership and, ; location of, ; – , – , – , – ; successes membership of, , ; motto of, ; of, ; training and, – myths of, ; nation rebuilding by, , Indian Act is : as assimilation, ; the – , , n; natural resources of, Attawapiskat and, ; constitutions and, – , , ; negotiations and, – ; ; Huu- ay- aht and, , – , , , negotiations of, ; priorities of, , ; Indigenous sovereignty and, n; – ; properties of, ; reservations as intrusive, ; limitations imposed and, – ; residential schools and, – by, – , , ; power structure of, ; , – , ; self- governance, – ; prohibitions within, n, ; purview self- governance and, , – ; social of, n; self- administration and, ; services and, , ; stories of, ; self- governance and, , – , – , territory of, ; traditional beliefs of, – , , ; terminology of, n; – ; traditional uses by, – ; treaties treaties and, of, , – , – ; tribal identity and, Indian Reorganization Act, – n, , , , , n Huu- ay- aht First Nations Council Indian Self- Determination and Education (HFNC), n Assistance Act of , , hydroelectric dams, – , – , – Indigenous peoples: Aboriginal land , , . See also electricity; Se’liš management policies and, ; Aboriginal Ksanka Qĺispe’ Dam title claims of, – , – , –; agency of, n; anger of, , – ; impact and beneªt agreements (IBA): in Australia, , , , , n, ; Aboriginal businesses and, –; authority of, , – , , n, – , Aboriginal objection to, – ; Aborig- – , , , , n; autonomy inal priorities and, – ; commercial of, , , – n; broken relation- codes, – ; community support and, ships and, – ; business partnerships – ; conªdentiality of, ; con¢icts of, – , ; in Canada, – , , with, ; deªnition of, , – ; – , – , ; Canadian courts and, distribution of, ; distribution of , n, , ; capability develop- beneªts from, – ; education and, ment and, ; claims of, n, – ; , – ; employment and, – , collaborations and, ; collective rights , – , ; examples of, – ; of, ; colonialism and, – , – , , , failures of, , – ; ªnancing of, ; community engagement and, – ; – ; history of, ; impact of, – community management of resources ; increased use of, ; joint ventures and, ; constitutions of, , , , and, – ; local attitudes concerning, – , , , , – , n, n, INDEX 331

n , ; consultations imposed on, , – , , , , – , , n; – ; creativity of, ; cultural preser- traditional governance structures of, – ; vation and, – , , ; culture of, treaties of, , , , , , ; tribal , , n; diseases and, n; duty to identity and, , – , , , n; trust consult with, , – , – , , – and, – ; in the United States, –, ; economic development by, , –, , – , – , n; values of, –; n, n, , , – ; education violence and, ; violent dispossession of, and, , n, ; employment and, – , ; voluntary migrations of, n; – , – , ; environmental warfare and, . See also Bininj; First protections and, , ; exploitation of Nations; Māori; Nez Perce; Ngāi Tahu ; resources and, – , – ; external Ngarrindjeri decision making and, – , – , ; Indigenous Works, – goal setting by, – , , , n, Innu Nation, ; “good governance” and, , , n , international trade: Canadian law and, ; , , , n; health and, – ; commercial codes and, – ; con¢ict- health care and, n; Indigenous ing within, – ; dispute resolution organizations and, , – ; injustices and, , – ; Indigenous land claims and, – ; international trade and, and, ; Indigenous peoples and, – – ; justice and, n, n; land ; investment agreements and, – ; and resource management by, n, most- favored nation (MFN) and, – n ; land rights of, – , – , – , ; national treatment (NT) principle n, n, , n, , – , , and, – ; regulations for, – , ; – ; land titles and, ; language self- governance and, of, , n; laws and, ; long term Inuit, , n, n, planning by, – ; marginalization of, Inuit Qaujimajatuqangit Katimajiit, n , – ; nation rebuilding by, , ; Inupiaq, natural resource development and, , Inuvialuit, n, – , – ; negotiations and, investment agreements: cultural preserva- ; networking and, ; of New Zealand, tion of, – ; dispute resolution and, – , ; obstacles to, – ; paternalism ; environmental protections and, and, n ; political activity of, – ; – ; international trade and, – ; politics of, , – ; positive relation- regulations for, – ; sovereignty and, ships and, – , – ; poverty and, – , , ; priorities of, – , , ; pro- Ishkitan, n tests by, – , , , ; recognition of, , , ; resentment of, , – ; Joint Keeyask Development Agreement, resistance by, , – , – ; rights of, , , , –, – ; risk management Kai Huaka feud, – strategies of, ; self- determination Kakadu National Park: Aboriginal land and, ; self- determination of, –, management policies and, , , ; self- governance and, – , , , , – ; accusations of Bininj disen- , – , – , – ; social issues gagement and, , ; Bininj and, and, n, , n; sovereignty of, , – , , – ; colonialism and, 332 INDEX

; cultural preservation and, –; Māori: agency of, – ; ancestral lands description of, ; disempowerment of, , – , – ; authority of, ; of Bininj and, ; economic develop- autonomy of, ; colonialism and, – ment and, – ; establishment of, ; community engagement and, – ; , n; exploitation of resources education and, – , ; employment and, – ; importance of, ; land and, ; ªnancial resources of, , – claims and, ; management of, , ; ªsheries of, – ; foodways of, ; – ; non- Aboriginal interests in, forests of, – ; genealogy of, ; hapuu – ; traditional walking routes and, of, ; health and, – , ; history of, ; Western land management policies ; income and, – ; incorporations and, , – ; as a World Heritage of, ; Indigenous knowledge systems site, – n and, , – ; institution building Kaska First Nation, – , of, ; iwi of, ; land rights of, –; Ketza River, language of, , ; membership and, Kiix?in, – , – ; nation rebuilding by, ; natu- Kitsaki, ral resources of, – ; New Zealand Kitsaki Management Limited Partnership, government and, – ; politics of, , , , ; protests by, ; recognition of, ; Koostatah, , self- determination of, ; settlement Kungun Ngarrindjeri Yunnan Agreement of, – ; social gains of, – ; social (KNYA): contract law and, ; descrip- units of, ; treaties of, , ; tribal tion of, ; history of, ; importance of, identity and, , ; trusts of, ; values – ; land and resource management of, , ; whakapapa of, and, ; land ownership and, ; negotia- Margarula, Yvonne, , – , n tions by, – ; self- governance and, Martu Household Survey, – Kwagis Power Ltd., Kokish River, Limited McNickle, D’Arcy, , n Partnership, Meech Lake Accords, “Meeting of the Waters,” , , Lac La Ronge Indian Band, , Membertou First Nation, Lake Albert, – Métis, , n, n, , Lake Alexandrina, – Milingimbi community, – Lake Coorong, – , , , , n Millennium Drought, – , , , , n Liberal Member of the Legislative Assem- mining: diamonds, , – , , , bly, ; environmental protections and, Little Pine Business Developments LP, ; impacts of, – ; as imposed on Little Pine First Nation, Indigenous peoples, – , – , Living Murray Program, – , , – ; Indigenous peoples and, ; logging, , , – , , – , – in the Kakadu National Park, – , – , , – , n; on the Nez Maa- nulth, – , , – , Perce reservation, ; partnerships Maa- nulth Final Agreement, n around, ; royalties from, – , , Maa- nulth Treaty, , , n, n , n Mabo, , n, Mirarr People of Kakadu, , – INDEX 333

Mission Valley Power, , ; capitalism and, – ; challenges Mohawk, of, , ; claims of, , , – , ; Montana Power Company (MPC), , , community engagement and, – , ; – , , – , , , – cultural preservation of, – ; culture Montana Power Company v. Federal Power of, , – , ; demographic changes Commission, n, n within, ; desegregation and, – ; Moose Band Development Corporation, diseases and, ; economic governance and, – , ; external decision making Muntjiljtarra Wurrgumu Group (MWG), and, ; external relationships and, – – ; ªsheries of, – , – ; foodways Murdi Paaki Regional Assembly (MPRA), of, – ; genealogy of, – ; global – economy and, – ; goal setting by, , Murray Futures, – , , , n – , – ; iwi of, ; kinship ties of, Mushkegowuk Council, – ; land rights of, , – , ; language of, , ; membership and, – , National Environmental Policy Act , ; nation building by, – ; natural (NEPA), resources and, , – ; of New Zea- natural gas, , , – , – land, ; poverty and, ; priorities of, , Nenqay Deni Accord, n – ; relationship with the Crown of, Nez Perce: ancestral lands of, , , ; , ; size of, – ; trading and, , ; authority of, – ; capability devel- tribal identity and, , – , , – , opment and, – ; Chinook salmon ; warfare within, – ; wealth of, – and, – , ; cultural preservation of, ; welfare and, ; culture of, ; dispossession of land Ngāi Tahu Claims Settlement Act, of, , – , – ; education and, Ngarrindjeri: Aboriginal title claim and, ; employment and, ; fur traders – , , , n; agency of, ; and, ; governance structures of, agreements of, ; in Australia, – , – ; gray wolf reintroduction by, , , n; authority of, – , –, – , ; health of, ; hydroelec- – ; burials of, ; colonialism and, , tric dams and, ; as Keepers of the , , – , ; comanagement and, ; Forests, ; kinship ties of, ; land conservation by, ; contact zone rela- and resource management by, – ; tions and, ; contract law and, , – ; land rights of, , ; language of, ; the Crown and, – , – ; cultural logging and, – ; mining and, ; preservation of, , – ; culture of, , natural resources of, – ; poverty ; economic development by, – ; and, ; reservation of, – ; as economy and, , – ; .economy of, resilent, ; self- governance and, – ; ; as extinct, , – , – ; geneal- Snake River and, – ; sovereignty ogy of, , n; goal setting by, – ; of, – ; treaties and, – ; tribal goals of, – ; health and, , – , – identity and, ; U.S. government and, , ; health of, ; heritage of, – , – ; welfare and, ; Indigenous knowledge systems of, Ngāi Tahu : authority of, – ; autonomy ; land and resource management by, of, – ; broken relationships and, – , , – , – , ; land rights of, 334 INDEX

–, , –, n; lands of, – ; Pennsylvania Power and Light, – language of, ; nation rebuilding by, Peter Wall Institute at the University of , , , – ; partnerships and, ; British Columbia, paternalism and, , , ; politics of, , place- names, , – , – , ; priorities of, ; projects of, Plebiscites Act , n , , n, n; recognition of, –, politics of resistance, – , – – , ; resistance by, – , ; rights potlatches, n, of, , – ; self- determination of, ; poverty, , , – , self- governance of, – ; sovereignty public trust doctrine, – of, , , , – , – ; statements Purple House, – n. See also Western of commitments (SOC) of, – ; Desert Dialysis (WDD) traditional beliefs of, , , – , ; treaties of, , – ; tribal identity and, Quechan, , – ; water rights of, – Ngarrindjeri Native Title Management Ramsar Wetland of International Impor- Committee, tance, , , , n Ngarrindjeri Regional Authority (NRA), Ranger Uranium Environment Inquiry, , , , , , , – , – , n, n, n Ngarrindjeri Yarluwar- Ruwe program, – reservations: of the Confederated Salish , – , , – , , n, n and Kootenai Tribes (CSKT), – , Nisga’a, , , , – – , – , ; Huu- ay- aht and, Nisga’a Commercial Group of Companies, – ; of the Nez Perce, – ; non- Indian homesteaders on, – , , NorSask Lake Forest Management License n; termination of, – , – , Agreement, – North American Free Trade Agreement residential schools, , – n, –, (NAFTA), – , – , – – , Northern Land Council, , , n Ring of Fire, , Norway House Community Development River Murray, , , Corporation, Robinson Treaties, – Nunavut, , n, n, – , , – R. v. Marshall [] S.C.R. and R. v. , Marshall [] S.C.R. , , n Nunavut Development Corporation, – R v. Pamajewon [] S.C.R. , – Nunavut Land Claims Agreement, Nuu- chah- nulth people, Sarita, , , – Satsan (Herb George), , O©ce of the Registrar of Indigenous Cor- Scattergood, J. Henry, – , , n porations (ORIC), self- determination: colonialism and, ; oil, , , , , – constitutive self- determination, – ; historical injustices and, – ; imple- paternalism, , , mentation phase of, ; of Indigenous Peguis Development Corporation, peoples, – ; Indigenous peoples Peguis First Nation, and, ; of Māori, ; realities of, ; INDEX 335

self-administration and, –; self- Act of and, , – , – , – , governance and, – , – , –; , ; Indigenous knowledge systems self- management and, – , ; sover- and, , , ; Indigenous organi- eignty and, , – n; territory of zations and, n; Indigenous peoples di¤erence and, ; Whānau Ora and, and, , , , , , – ; individuals , – and, , – , – ; international self- governance: Aboriginal land manage- trade and, ; jurisdiction and, ; Kun- ment policies and, – ; Aboriginal- gun Ngarrindjeri Yunnan Agreement state relations and, – ; Aboriginal (KNYA) and, ; land and resource title claim and, – ; accountability management by, – ; land rights and, and, , ; adaptability and, , , – ; legitimacy and, ; limitations – , ; authority and, – , , ; of, , – ; litigations and, ; long autonomy and, ; in Canada, – , term planning for, ; memorandum – , , ; capability development of understanding (MOU) and, –; and, – , – , ; claims for, ; col- mentoring and, ; models of, – ; laborations and, ; comanagement and, nation rebuilding and, , – , – , – , , – ; commercial codes and, ; nation rebuilding by, , ; natural ; community building and, ; com- resource development and, – , – munity engagement and, , – , , , – , negotiations and, , n, – ; community wellness and, – , – , ; networking and, , ; ; constraint of, – ; constitutions origins of, , – ; partnerships and, and, ; court cases and, ; creativity in, ; positive relationships and, – , – ; cultural preservation and, – ; – ; priorities and, – ; as a prior- deªnition of, , – ; development ity, ; pursuit of, – ; recognition and, of, ; di©culties with, – ; discipline , , ; resistance and, – ; rights and, – , – , ; dispute resolu- and, – , – ; self- determination tion and, , , ; diversity in, – , and, – , – , – ; self- reliance , – ; economic governance and, and, ; self- su©cient communities and, , , – , – ; education and, ; ; shadow, , n; sovereignty and, e¤ectiveness of, – , , ; elections , , – , – , ; structures of, and, –, – , ; employment , , , n, – , – , , –; and, –; ethics of separation and, successes in, , – , ; success of, ; expansion of, , – ; external – ; tension and, ; tools for, ; decision making and, , – ; ªght traditional models and, ; transforma- for, – ; goal setting and, – , , tion of, ; transformative pathway to, – , – , , – ; governmental , – , – , – , ; tribal identity support of, ; hereditary chiefs and, , and, , – , , – ; values and, – , n, n , – , n, –; – , , – ; Western critiques of, Huu- ay- aht and, – ; impact and – . See also Arnhem Land Progress beneªt agreements (IBA) and, – , Aboriginal Corporation – , – ; importance of, , ; Se’liš Ksanka Qĺispe’ Dam: comanagement incremental pathway to, – , , –, of, ; construction of, ; distribution , –, , – , – , ; Indian of beneªts from, , –; environ- 336 INDEX

mental protections and, , , –, Tahltan First Nations, – , , , n ; expansion of, ; ªght over Taku River Tlingit First Nation v. British rental rates of, –; ªnancial risks Columbia (Project Assessment Director), of, –; ªnancing of, ; Flathead SCC , , , Indian Irrigation Project and, –; territory of di¤erence, , Flathead Reservation termination and, Teslin, n, –; former names of, –, ; his- tourism, , – , , , –, tory of, –, –; Indigenous objec- n tions of, –; as an irrigation project, trade, , . See also international trade n; joint licensing for, , n ; Trans Mountain Expansion Project, licensing of, –, –, –; treaties: Canadian con¢ict of interest and, Montana Power Company (MPC) and, – ; historic, – ; of the Huu- , , –; negotiations for, –; ay- aht, , – , – , n, n ; peaking and, , ; purchase of, , – of Indigenous peoples, , , , ; , –, , –; rental negotiations Indigenous peoples and, ; of the for, –, – , , n, n , Māori, ; modern, , – , –, –n ; rental of, ; rental price of, n, n , , , – , – ; of –; second licensing for, –; value the Nez Perce, – ; of Ngarrindjeri, of, , –, –, –, –n . , – ; of Nunavut, ; sovereignty See also electricity; hydroelectric dams and, ; Whānau Ora and, Selkirk First Nation, n, Treaty of Waitangi, , “Sharing the Net Beneªts,” – , Trevorrow, George, , , n Siksika Environmental Ltd. Company/Joint Trevorrow, Tom, – , , Venture, Tsilhqot’in Nation, , , n, Snake River Basin Adjudication, social services, – , , – , United Nations Declaration on the Rights sovereignty: of Canada, ; commercial of Indigenous peoples (UNDRIP), , codes and, ; commercial law and, , – ; defense of, ; deªnition of, U.N. Special Rapporteur on the Rights of – ; of First Nations, ; Indian Act Indigenous peoples, , of and, n; of Indigenous US- - Softwood Lumber IV, peoples, , , , , – , , n; investment agreements and, – , ; Victor Project: Syncrude Oil Sands Impact litigations and, ; negotiations and, and Beneªt Agreement, ; of Ngarrindjeri, , , , – ; Voisey’s Bay Environmental Management self- determination and, , – n; Agreement and IBAs, self- governance and, , – , – , ; treaties and, Warddeken Land Management Ltd., R. v. Sparrow [] S.C.R. , Warnbi Aboriginal Corporation Kakadu, Squamish First Nation, St. Mary’s Economic Development Corpo- West Arnhem Land Fire Abatement ration, (WALFA), St. Mary’s First Nation, Westbank First Nation, INDEX 337

West Coast District Council of Chiefs. See Whānau Ora Commissioning Agencies, Nuu- chah- nulth Tribal Council – , , Western Desert Dialysis (WDD), – , Whānau Ora Navigator, – , – n. See also Purple House White Cap Dakota First Nation, – Western Desert Nganampa Walyja Palyant- Whitecap Development Corporation, jaku, – Wik, Wet’suet’en, , n Wiluna Regional Partnership Agreement Whānau Integration, Innovation and (WRPA), – Engagement Fund (WIIE Fund), Whānau Ora: capability development and, Yarnteen Aboriginal and Torres Strait – ; deªnition of, ; ªnancing of, Islander Corporation (Yarnteen), – – , ; goals of, – ; implemen- Yawuru, – tation of, – ; importance of, – , Yolngu, – – ; outcomes for, ; outcomes of, Yukon First Nations, , n, ; self- determination and, , – ; Yukon Umbrella Final Agreement, social services and, ; as a strength based approach, ; treaties and, ; vulnerability of,