ABORIGINAL ENGAGEMENT IN CANADA: SEEKING RECONCILIATION THROUGH ELECTORAL PARTICIPATION AND LAND NEGOTIATIONS JENNIFER E. DALTON A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN LAW OSGOODE HALL LAW SCHOOL YORK UNIVERSITY TORONTO, ONTARIO JULY 2010 Library and Archives Bibliotheque et 1*1 Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington OttawaONK1A0N4 OttawaONK1A0N4 Canada Canada Your Tile Votre reference ISBN: 978-0-494-80540-4 Our file Notre reference ISBN: 978-0-494-80540-4 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distribute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extraits substantias de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission. In compliance with the Canadian Conformement a la loi canadienne sur la Privacy Act some supporting forms protection de la vie privee, quelques may have been removed from this formulaires secondaires ont ete enleves de thesis. cette these. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. 1*1 Canada ABSTRACT Aboriginal reconciliation is a process of healing that seeks to repair and restore the legal, political and socio-cultural relationships that exist between Aboriginal peoples and the rest of Canada. In order to heal these relationships, a new approach to reconciliation that emphasizes active, meaningful Aboriginal engagement may be effective. To this end, it is presumed that positive forms of engagement contribute to reconciliation. However, meaningful Aboriginal engagement can only be a successful mechanism through which to achieve reconciliation if the multifaceted differences that define Aboriginal peoples and their histories, cultures, languages and practices are accepted and respected. Moreover, meaningful engagement means effective outcomes wherein the uniqueness of Aboriginal identities are more fully represented and included, so as to foster greater cooperation, mutual awareness, reciprocity and trust between Aboriginal peoples and Canada. To demonstrate the importance of these factors, a theory of cultural sensitivity is put forward, which posits that respectful, inclusive social interaction that acknowledges Aboriginal distinctiveness may lead to increased social cohesiveness between Aboriginal peoples and Canada. This model is an amalgamation of theories on social capital and social intelligence, only it is broadened to encompass a compassionate awareness and acceptance of Aboriginal distinctiveness in order to promote higher levels of social cohesion, respect and trust across Aboriginal-Canada relations. iv Two specific forms of Aboriginal engagement are evaluated: participation in Canadian elections, particularly voter turnout, and involvement in land negotiations. The dissertation seeks to determine the extent to which elections and land negotiations provide positive opportunities for meaningful Aboriginal engagement, and whether improvements need to be made to the election system and negotiations process in order to promote more positive engagement. Ultimately, it is argued that increased Aboriginal engagement will improve overall social cohesiveness, at the very least by increasing the frequency of positive interactions between Aboriginal peoples and Canada. Where such exchanges are constructive, Aboriginal-Canada relationships should ideally improve through the building of trust and mutual respect. This, in turn, ultimately leads to an increased likelihood of achieving more meaningful Aboriginal reconciliation. v DEDICATION This dissertation is dedicated to my mother, Janet E. Dalton, for continually supporting my dream of becoming an academic, and for never doubting my ability to complete the PhD. She always taught me to love learning, believe in myself and in my ability to accomplish what I set out to complete. Several times throughout the completion of this degree, I found it necessary to draw from this source of confidence that she instilled in me as a child. For this, I am truly grateful. This dissertation is also dedicated to the memory of Kippy, a very wonderful pet and special companion who I dearly miss and will never forget. ACKNOWLEDGEMENTS I am truly thankful to Patrick J. Monahan for infusing an abundance of wisdom and insight into the scope of my dissertation. A few years ago, I wrote two major research papers, one on Aboriginal voter turnout and the other on Aboriginal land claims. At the time that I researched and wrote these two papers, I enjoyed enthusiastic discussions with him, wherein he sharpened and illuminated my ideas. His questions were consistently perceptive, helping to reveal the central research issues at stake. His helpful suggestions were predicated on outstanding discernment and judgment. He provided more unfailing advice than did any other individual, and while he likely does not know it, and may not want to accept credit for it, he contributed far more than anyone else to this dissertation. As he said, writing a dissertation indeed requires "blasting through the side of a mountain," and at times, it seemed like this mountain was fashioned from tungsten steel. There are very few individuals who are as decent or genuine, and his dedication to academic excellence in all areas - research, teaching and administration - are incredible sources of inspiration. The efforts of the supervisory and examining committee members should also be gratefully acknowledged. Particular thanks to Ian Greene for filling the role of supervisor on the examining committee and for providing a great deal of support leading up to and during the defence. I am grateful for his reliably-positive attitude, objectivity and willingness to help. Thanks are also owed to Barbara Cameron for her encouragement vii and interest in my work, along with helpful comments provided at the oral examination. Thanks to Shin Imai for being the longest-serving supervisory committee member and Chair of the examining committee. Thanks to David Szablowski for helpful suggestions on the final draft and especially for coming on board during the final stages of writing. Thanks to external member Michael Coyle for his role as external examiner. Thanks are extended to Lisa Philipps for her willingness to serve on the examining committee with short notice and her subsequent flexibility to become a supervisory committee member at the defence. I would also like to express my gratitude to Susan Warwick for her commendable hard work. While she was not an official committee member prior to the oral examination, she nevertheless read my dissertation as possible preparation, and then subsequently stepped in as an examining committee member the day of the oral examination to ensure that my defence went ahead as scheduled. Sincere thanks to Cristina Del Principe, a very bright student with tremendous potential. It is little wonder that many who seek to complete a PhD at times question their purpose for doing so. During the final editing stages, when my doubts threatened to get the better of me, she helped me remember why I wanted a PhD to begin with: the thrill of teaching and the opportunity to help students achieve their highest potential. I would like to acknowledge the assistance of several other individuals who provided access to data and useful methodological suggestions. Thanks to Marc Boivin of Indian and Northern Affairs Canada (Band Governance Directorate), Herschell Sax of Elections Canada, and Bryn Greer-Wootten of the Institute for Social Research at York viii University for their assistance in my collection of data on Aboriginal voter turnout. Thanks to Jon Averill, Doug Carr, Jill Comerford and Lori Sterling of the Ontario Ministry of Aboriginal Affairs for assistance in providing Ontario land negotiations data. Finally, I want to express my appreciation to York University and Osgoode Hall Law School for providing intellectual environments and opportunities for extensive academic and scholarly growth, including through their support of my scholarship applications. This dissertation benefitted significantly from the financial support I received from the Social Sciences and Humanities Research Council of Canada, the Ontario Graduate Scholarship program and other awards. I am very proud to be a two- time alumna of this great institution. ix TABLE OF CONTENTS