Law

This article analyses the apparent tensions between the current Canadian law on the Crown's duty to consult with Indigenous peoples, which generally refuses an Indigenous veto over proposed land uses in traditional lands, and the principle of prior informed indigenous consent, as enshrined in the recent U.N. Declaration of the Rights of Indigenous Peoples. The tension between these competing visions of the rights of Indigenous communities has given rise not just to theoretical legal conflicts, but also to destructive conflicts on the ground. The author argues that attention to the dialogic framework within which Indigenous concerns are addressed during consultations, and particularly to indigenous peoples' participation in developing that framework, is key to managing those conflicts effectively and to reconciling current Canadian law and practice with the principles of the U.N. Declaration. Next it examines a question on which Canadian consultation law is largely silent: the allocation of benefits derived from developments on Indigenous traditional lands. Finally, the analysis turns to the principle of free, prior and informed consent to the substance of proposed developments on traditional lands. The article concludes that the objective of obtaining such consent is a salutary one that has been wrongly marginalized in both the jurisprudence and Canadian government practice. The food we get from the land, which includes fish, moose, caribou, geese, ducks and other fowl, provides us with much-needed nutrients and protein. This food from the land also serves a central role in our culture. It is brought to our elders for distribution amongst our people... Anything that may disrupt this fragile system, our sacred relationship with and stewardship of the land, the safety of our drinking water, or our ability to hunt, fish and trap is of great concern to our people, who live in circumstances best described as marginal. 1

... in Ontario to identify and enforce the terms of treaties with Aboriginal peoples, it is necessary to consider briefly the his-tory of treaty ... 187; Michael Coyle, "Addressing Aboriginal Land Rights in Ontario: An Analysis of Past Policies and Options for the Future-Part I" (2005) 31 ...

Part One of this paper, published separately in the Queen's Law Journal, described the nature and legal basis of aboriginal land claims in Ontario and historical barriers that impeded their resolution. This second part reviews the adequacy of existing federal and provincial negotiation processes for addressing aboriginal claims in Ontario. In light of the rising number and the age of unresolved claims within existing processes, the author proposes five criteria for measuring the effectiveness of claims resolution processes in Canada, and identifies practical options for the design of improvements to the current model. While reforms to Canadian land claims processes will require substantial investment, continued deferral of the rsolution of these claims will also have high costs in both financial and human terms.

Whether Indigenous peoples have a right to withhold their consent to proposed resource developments on their traditional lands is a topic of much debate at the moment. Canada’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples raises questions about Canada’s existing consultation law, which generally does not require Indigenous peoples’ advance consent to proposed uses of their traditional lands. While the issue of consent is important, the author argues that focusing only on the end point of consultations misses important questions about the capacity of existing consultation processes to promote consensus-building between the state and Indigenous peoples. This article takes a critical look at the structure of current consultation processes in Canada and proposes changes that would strengthen their capacity to manage conflicts effectively, to respect Indigenous values and legal orders, and to advance the long-term relationship between the Canadian sta...

The vast majority of indigenous rights disputes are currently advanced, and resolved, outside domestic courts. This paper, which will appear in the upcoming book, "Indigenous Peoples and the Law: Comparative and Critical Perspectives", (Hart Publishing, Oxford), compares the out-of-court ("ADR") processes that have been created to address indigenous land rights disputes in each of Australia, Canada and New Zealand. In contrast to the U.S. Indian Claims Commission model, each of Australia, Canada and New Zealand have developed "hybrid" ADR processes that leave considerable space for negotiation between the state and indigenous nations. Collectively, these ADR processes have produced a quantity and variety of outcomes not previously available through the courts in any of the countries. Drawing on dispute resolution theory, this paper suggests a possible framework for assessing the suitability and effectiveness of existing ADR regimes in addressing indigenous grievances. A major concern is the efficacy of the processes in responding to power and cultural differences. Whether any of the processes reviewed adequately protects indigenous claimants from outcomes dominated by the parties' power relations is a question that merits closer investigation.