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Reconceiving the duty to consult and accommodate Aboriginal peoples : a relational approach Manley-Casimir, Kirsten 2016

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 RECONCEIVING THE DUTY TO CONSULT AND ACCOMMODATE ABORIGINAL PEOPLES: A RELATIONAL APPROACH  by  Kirsten Manley-Casimir    A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law)  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  January 2016  © Kirsten Manley-Casimir, 2016   ii Abstract  Duty to consult and accommodate jurisprudence does not live up to the promise of reconciliation that the Supreme Court of Canada has identified as the grand purpose of section 35(1) of the Constitution Acts. I argue that a relational framework to the duty to consult and accommodate would forward reconciliation between Indigenous and non-Indigenous peoples within Canada.  I suggest four bijural principles to ground this framework: respect, recognition, reciprocity and reconciliation – all of which find support in Canadian and Indigenous laws.  The principle of respect situates Indigenous and non-Indigenous peoples within a web of relationships that define our identities and level of self-respect. Practical strategies include making interdependence primary, rejecting colonial attitudes, and creating space for Indigenous communities to foster cultural difference. The principle of recognition involves two aspects: acknowledgement and affirmation.  Acknowledgment involves acknowledging historic wrongs, taking responsibility, and moving forward together in light of the history. Practical strategies include recognizing the value of Indigenous storytelling, creating spaces for meaningful listening, and making a commitment to remember and change.  Affirmation involves formally entrenching in law the inherent rights of Indigenous communities. It involves rejecting the assumption of settler entitlement to Indigenous lands, putting all issues on the table in political negotiations, and creating a sphere of recognition for Indigenous governance and legal systems.   iii  The principle of reciprocity involves engaging with cross-cultural others to create an equally beneficial relationship aimed at mutual understanding.  Practical strategies include dialogical engagement with no hidden agenda, starting from a point of wonder, humility and risk, and striving for embodied connections with cross-cultural others.  The principle of reconciliation involves a long-term process to rebuild damaged relationships between Indigenous and non-Indigenous peoples.  Practical strategies include rebuilding trust, developing a shared vision of the future, creating processes to manage conflicts that arise, and implementing concrete actions to move towards the shared vision. In the context of the duty to consult and accommodate, each principle points to attitudinal shifts and concrete actions that have implications for Canadian judges and governments.  Implementing this relational framework provides a promising pathway forward to rebuild Indigenous/non-Indigenous relationships within Canada.    iv Preface  This dissertation is my original and independent work and therefore I take responsibility for any errors or omissions.  Some parts of this dissertation reproduce and adapt writing from published articles as follows. Permission has been granted to reproduce these articles in this dissertation.   A version of Chapter 2, section 2.1 and some sections in 2.4 have been published in Kirsten Manley-Casimir, “Reconciliation, Indigenous Rights and Offshore Oil and Gas Development in the Canadian Arctic” (2011) 20:1 Review of European Community and International Environmental Law 29.   Some paragraphs in Chapter 1, section 1.6 and a version of Chapter 5, section 5.2.4.1 and some paragraphs in section 8.2.1 have been published in Kirsten Manley-Casimir, “Creating Space for Indigenous Storytelling in Courts” (2012) 27(2) Canadian Journal of Law and Society 231.    Some paragraphs in Chapter 8, section 8.2.1 reproduce and adapt writing from Kirsten Manley-Casimir, “Incommensurable Legal Cultures: A Vision of an Alternative World” (2012) 30(2) Windsor Yearbook Access to Justice 137.     v Table of Contents  Abstract ...................................................................................................... ii Preface ....................................................................................................... iv Table of Contents ......................................................................................... v List of Tables ............................................................................................ xii List of Figures ......................................................................................... xiii List of Abbreviations ................................................................................ xiv Acknowledgements ................................................................................... xv Dedication ................................................................................................ xvi Chapter 1: Towards a Relational Approach to the Duty to Consult and Accommodate .............................................................................................. 1 1.1 Setting the Stage ................................................................................................. 2 1.2 Situating My Work .............................................................................................. 5 1.3 Starting Points .................................................................................................... 6 1.4 Acknowledging My Perspective .......................................................................... 8 1.5 Creating a Common Language: Defining Key Terms ........................................ 9 1.6 Scope and Limitations ...................................................................................... 13 1.7 Theoretical Perspective .................................................................................... 20 1.7.1 A Decolonial Approach to the Duty to Consult and Accommodate ............. 21 1.7.1.1 Using a Decolonial Approach as a Non-Indigenous Scholar ................ 25 1.8 A Bijural Approach to the Duty to Consult and Accommodate ....................... 28 1.9 Methodological Approach ................................................................................ 28   vi 1.10 A Note on Structure .......................................................................................... 34 1.11 Mapping My Path ............................................................................................. 35 Chapter 2: The Divergence Between the Duty to Consult and Accommodate and the Reconciliation Purpose of Section 35 ........................................... 44 2.1 Reconciliation as the Fundamental Purpose of Section 35 ............................. 46 2.2 Movement Towards a Broader Interpretation of Reconciliation .................... 54 2.2.1 Expanding the Circle of Reconciliation: A Double-Edged Sword ............ 55 2.2.2 A Balancing Act: Pitting Indigenous Rights Against the Interests of Larger Canadian Society .......................................................................................... 57 2.2.3 From Balancing to Translation: Further Constraints on the Interpretation of Reconciliation ...................................................................................................... 60 2.2.4 Tethering Reconciliation to Honour and Justice ..................................... 65 2.2.4.1 Reconciliation and the Honour of the Crown ....................................... 66 2.2.4.2 Reconciliation and Justice .................................................................... 70 2.2.5 Shifting the Focus: Reconciliation as Forward-Looking and Prospective…………… ................................................................................................ 79 2.3 The Duty to Consult and Accommodate as a Procedural Requirement of Reconciliation .............................................................................................................. 81 2.3.1 The Duty to Accommodate: A Heavy Burden on Aboriginal Peoples .......... 91 2.4 Limits of the Duty to Consult and Accommodate in Fulfilling the Purpose of Reconciliation: Rio Tinto and Little Salmon .............................................................. 94 2.4.1 Rio Tinto v Carrier Sekani Tribal Council ............................................... 94 2.4.2 Beckman v Little Salmon/Carmacks First Nation .................................. 98   vii 2.5 Concluding Thoughts...................................................................................... 103 Chapter 3: Developing a Relational Framework for the Duty to Consult and Accommodate: A Principles-Based Approach .......................................... 107 3.1 Strengths and Challenges of a Principles-Based Approach ............................ 110 3.2 The Limits of Using Administrative Law to Satisfy the Duty to Consult and Accommodate ............................................................................................................ 120 3.3 Historical and Legal Precedents for Principles-Based Approaches .............. 123 3.3.1 Intersocietal Normative Frameworks in Early and Contemporary Indigenous/Non-Indigenous Relations ................................................................. 128 3.4 Identifying the Four Principles ....................................................................... 131 3.4.1 The Medicine Wheel Framework ............................................................ 135 Chapter 4: The South Door: The Principle of Respect .............................. 144 4.1 Sources for the Principle of Respect ............................................................... 146 4.2 Substantive Content of the Principle of Respect ............................................ 147 4.2.1 The What? ............................................................................................... 148 4.2.1.1 Non-Indigenous Theories of Respect .................................................. 148 4.2.1.2 Indigenous Theories of Respect ...........................................................155 4.2.1.3 Respect Between Cultural Groups....................................................... 162 4.2.2 The Why? ................................................................................................. 166 4.2.2.1 Canada’s History of Disrespect Towards Indigenous Peoples ........... 167 4.2.2.2 Internalizing Disrespect: Indigenous Identities and Self-Respect ......172 4.2.2.3 Restructuring the Relationship to Live Together in Respect ............. 176 4.2.3 The How? .................................................................................................. 177   viii 4.2.3.1 Making Interdependence and Mutual Responsibilities Primary ........ 177 4.2.3.2 Rejecting Colonial Attitudes and Stereotypes ..................................... 180 4.2.3.3 Creating Space to Express and Foster Cultural Difference................. 185 4.3 Visions of Respect ........................................................................................... 189 Chapter 5: The West Door: The Principle of Recognition ......................... 192 5.1 Sources for the Principle of Recognition ........................................................ 195 5.2 Substantive Content of the Principle of Recognition ..................................... 197 5.2.1 Reflections on Misrecognition and Nonrecognition .................................. 198 5.2.2 Critiques of State-Granted Recognition.................................................. 205 5.2.3 Recognition as Acknowledgement .......................................................... 209 5.2.3.1 The What? ............................................................................................ 210 5.2.3.2 The Why? ............................................................................................. 213 5.2.3.3 The How? ..............................................................................................217 5.2.3.3.1 Restorying Canada’s History Through Indigenous Storytelling ... 219 5.2.3.3.2 Creating Conditions for Meaningful Listening ............................. 223 5.2.3.3.3 Making a Commitment to Remember and Change ...................... 226 5.2.4 Recognition as Affirmation ..................................................................... 227 5.2.4.1 The What? ............................................................................................ 228 5.2.4.2 The Why? ............................................................................................. 233 5.2.4.3 The How? ............................................................................................. 237 5.3 Visions of Recognition .................................................................................... 240 Chapter 6: The North Door: The Principle of Reciprocity ......................... 244 6.1 Reciprocity in Non-Indigenous and Indigenous Cultures ............................. 245   ix 6.1.1 The Early Treaties: Reciprocity in Intercultural Relationships ................. 250 6.2 Sources for the Principle of Reciprocity ......................................................... 252 6.3 Substantive Content of the Principle of Reciprocity ...................................... 255 6.3.1 The What? ............................................................................................... 255 6.3.1.1 Power and Reciprocity ......................................................................... 259 6.3.1.2 On Reciprocity: Democratic Moral Theory ......................................... 262 6.3.2 The Why? ................................................................................................. 268 6.3.2.1 Moral Aspects of Reciprocity ............................................................... 268 6.3.2.2 Mutual Understanding ........................................................................ 270 6.3.3 The How? ................................................................................................. 274 6.3.3.1 Dialogical Engagement ........................................................................ 275 6.3.3.2 Wonder, Humility and Risk ................................................................ 277 6.3.3.3 Embodied Engagement and Emotional Connection .......................... 281 6.4 Visions of Reciprocity ..................................................................................... 286 Chapter 7: The East Door: The Principle of Reconciliation ...................... 289 7.1 Sources for the Principle of Reconciliation .................................................... 293 7.2 Substantive Content of the Principle of Reconciliation ................................. 294 7.2.1 The What? ................................................................................................... 295 7.2.1.1 Towards an Intersocietal Interpretation of the Principle of Reconciliation ..................................................................................................... 296 7.2.1.2 Is Reconciliation a Process and/or an Outcome? .............................. 300 7.2.1.3 Indigenous Critiques of Reconciliation ............................................... 303   x 7.2.1.4 Three Key Aspects of the Principle of Reconciliation: Truth-telling, Taking Responsibility and Taking Action .......................................................... 310 7.2.2 The Why? ................................................................................................. 320 7.2.3 The How? ................................................................................................. 322 7.2.3.1 Rebuilding Trust in Damaged Relationships ...................................... 325 7.2.3.2 Linking the Past and Future to Re-envision the Present .................... 329 7.2.3.3 Developing a Shared Vision of an Interdependent Future ................. 330 7.2.3.4 Creating New Patterns, Processes and Structures to Support the Relationship........................................................................................................ 334 7.2.3.5 Implementing Concrete Actions to Move Towards the Shared Vision……. ........................................................................................................... 337 7.3 Visions of Reconciliation ................................................................................ 339 Chapter 8: Applying the Principles-Based Framework to the Duty to Consult and Accommodate ...................................................................... 342 8.1 Implementing the Framework to Guide Consultation Processes: Attitudinal Shifts Coupled with Concrete Actions ....................................................................... 343 8.1.1 Creating New Patterns and Processes: A Relational Framework for Canadian Judges .................................................................................................... 346 8.1.2 Practical Implications for the Development of Duty to Consult and Accommodate Jurisprudence ................................................................................ 356 8.1.3 Implementing the Relational Framework in Government Consultation: Necessary Attitudinal Shifts .................................................................................. 361 8.1.4 Considerations for Government Consultation Processes ....................... 368   xi 8.2 Concluding Thoughts...................................................................................... 375 Chapter 9: Circling Back to the Beginning................................................ 377 Bibliography ............................................................................................ 383    xii List of Tables  Table 8.1 - Attitudinal Shifts and Concrete Actions Necessary to Implement the Framework ..................................................................................................................... 343    xiii List of Figures  Figure 1.1 - Medicine Wheel Framework to Approach Issues in Aboriginal Law .......... 30 Figure 3.1 - A Principles-Based Approach to the Duty to Consult and Accommodate……………………………………………………………………………………………………137 Figure 3.2 - Interrelationships Between the Principles ................................................ 139    xiv List of Abbreviations  BC – British Columbia EPA – Energy Purchase Agreement FIT – Feed-In Tariff  FNCFCS – First Nations Child & Family Caring Society of Canada IRS – Indian Residential Schools IRSSA – Indian Residential Schools Settlement Agreement MMF – Manitoba Métis Federation LARC – Land Application Review Committee LSCFN – Little Salmon/Carmacks First Nation RCAP – Royal Commission on Aboriginal Peoples RCMP – Royal Canadian Mounted Police TRC – Truth and Reconciliation Commission of Canada   xv Acknowledgements  I would like to thank my supervisor Gordon Christie for your insight, engagement and timely comments on various drafts, which have much improved this dissertation. I also want to thank my committee members Douglas Harris and Renisa Mawani for your helpful comments, support and engagement.  Thank you also to my former committee member, Benjamin Richardson for his support and feedback. I also want to acknowledge the support and mentorship of my good friend, Kimberly Murray. I appreciate you sharing her Medicine Wheel approach to organizing papers and for helping me brainstorm ways to effectively use this approach to structure my dissertation and my discussion of the four principles. This has been a great challenge and learning process for me.  I hope I have done justice to your teaching.  I am fortunate to have unconditional support from my family in all my endeavours. Thanks to my parents, Elsie and Michael Manley-Casimir, for your emotional and financial support.  Thanks to my siblings, Rachel, Sean and Naomi, and my in-laws, Liz and Christi, for your unwavering moral support. Thank you to my kids, Taiga and Masami – you are my rays of sunshine and you make me feel more love and joy than ever before.  Last but not least, thank you to my husband and partner in life, Robby Jay. You have supported me emotionally and financially throughout this long process and have taken on more of your share of the work with the kids and around the house to enable me to complete this. I will always appreciate your unconditional love and support. This accomplishment is as much yours as it is mine.   xvi Dedication This is dedicated to Kevin Watson and Ed Gyoba – you brought love, light and laughter to all our lives and we miss you dearly.   1 Chapter 1: Towards a Relational Approach to the Duty to Consult and Accommodate There was such a strong will to disappear us, to disappear us from the places where we lived, the places where we were born.  Our present is informed by our histories and we have to engage with these histories to understand where we are right now.1 In recent years, Canadian courts have increasingly recognized the need to reconcile the pre-existing rights of Indigenous Peoples with the existence and rights of non-Indigenous people within Canada.  Many contemporary disputes arise in the context of resource or other development projects where Indigenous Peoples have established or yet-to-be established claims over their ancestral territories.2 The Supreme C0urt of Canada has begun to elaborate the duty to consult and accommodate and provide a framework for Indigenous peoples and the Canadian government to manage these disputes in accordance with the constitutional protections afforded to Aboriginal rights under section 35(1) of the Constitution Acts.3 In this dissertation, I argue that the duty to consult and accommodate, as it is currently formulated, does not live up to the promise of reconciliation that the Supreme Court of Canada has identified as the grand purpose of s. 35(1).  Building on the case law and academic work to date, I suggest that a relational approach to the duty to consult and accommodate would move Indigenous and non-Indigenous peoples within Canada along the path of reconciliation.  I suggest four bijural principles to                                                    1 Ken Monkman, Cree artist quoted in CBC’s 8th Fire: Aboriginal People, Canada and the Way Forward (2012), online: <http://www.cbc.ca/8thfire/> (retrieved 5 September 2015). 2 A few high profile examples include the Oka crisis, the blockade in Caledonia and the recent anti-fracking protests in New Brunswick. 3 Constitution Acts, 1867 to 1982, Schedule B, Department of Justice (Ottawa: Canada Communications Group, 1989) [Constitution or Constitution Acts].   2 ground this relational approach: respect, recognition, reciprocity and reconciliation – all of which find support in Canadian law and Indigenous legal traditions.  Each principle points to attitudinal shifts and concrete actions that need to take place in the context of intercultural disputes that arise.  Implementing this framework to guide the development and implementation of the duty to consult and accommodate under section 35 provides one promising pathway for rebuilding the relationship between Indigenous and non-Indigenous communities within Canada. 1.1 Setting the Stage More and more frequently, issues of Aboriginal and treaty rights, competing sovereignties and political and economic forces collide as resource extraction companies aim to profit from the development of resources from lands and waters within Indigenous traditional territories.  In addition, global pressures with respect to the increasing demand for commodities, such as oil, continue to exert pressure on both the Canadian government and Indigenous Nations to extract resources from Indigenous traditional territories.  Many Indigenous Nations within Canada find their traditional territories continually being encroached upon or degraded due to such developments.  The pressure and concerns of environmental groups are often aligned with Indigenous resistance to such encroachment, creating more political pressure on the Canadian government to ensure that such interests are taken into account. In addition to political pressure, the Canadian government has legal obligations to consult with Indigenous communities where their interests may be affected by such developments.  Canadian jurisprudence in the area of Aboriginal law has developed rapidly since the inclusion of section 35 in the Constitution Acts in 1982.  Since the late   3 1990s the Supreme Court of Canada has outlined the Canadian government and industry’s legal obligations with respect to consulting and accommodating Indigenous communities.  The Court has clarified that although industry may be called upon to facilitate the consultation and accommodation process, the legal obligation of the duty to consult and accommodate falls exclusively on the Canadian government.4 The Court has specified that the government has legal obligations that include a duty:  to consult with Indigenous communities where an Indigenous community has asserted or proven Aboriginal5 or treaty rights;6  to act honourably in dealing with Indigenous communities;7  of good faith in consultations,8 accommodations9 and negotiations10 and to avoid sharp dealing;11  to substantially attempt to address Indigenous concerns.12  The Court has also clarified that in considering whether the duty to consult and accommodate has been met, the government must balance the interests of the broader Canadian society with those of the affected Indigenous community.13  Although the jurisprudence provides some useful starting points to guide the Canadian government, industry and affected Indigenous communities in what appropriate consultation might look like, the Supreme Court of Canada has failed to                                                    4 Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 [Haida Nation] at para 53. 5 Ibid at para 27. 6 Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), [2005] 3 SCR 388 [Mikisew Cree] at para 7. 7 Haida Nation, supra note 4 at para 17; Manitoba Métis Federation Inc v Canada (Attorney General) 2013 1 SCR 623 [Manitoba Métis Federation] at para 65. 8 Delgamuukw v British Columbia, [1997] 3 SCR 1010 [Delgamuukw] at para 168. 9 Haida Nation, supra note 4 at para 29. 10 Delgamuukw, supra note 8 at para 186. 11 Haida Nation, supra note 4 at para 42. 12 Delgamuukw, supra note 8 at para 168. 13 Haida Nation, supra note 4 at para 50; see also Taku River Tlingit First Nation v British Columbia (Project Assessment Director), [2004] 3 SCR 550 [Taku River] at para 2.   4 articulate a well-developed normative framework to guide the development of the duty to consult and accommodate.  The current legal landscape has resulted in a tendency for the Canadian government and industry to approach their legal obligations to consult in a way that only meets the minimum necessary requirements. The government’s minimalist approach to consultation, coupled with the Court’s insistence on balancing Indigenous interests against the interests of the broader Canadian society has had three clear effects: 1. it elevates the protection of non-Indigenous interests and correspondingly minimizes the constitutionally protected rights of Indigenous communities; 2. it fails to adequately recognize the special constitutional status of Indigenous communities whose rights are enshrined in section 35 of the Constitution Acts; and 3. it fails to recognize the importance and status of the relationships between Indigenous nations and the Canadian government.  As currently formulated, the duty to consult and accommodate fails to provide a substantive mechanism for Indigenous communities to participate in decision-making related to their traditional territories. A central question in duty to consult and accommodate case law is whose experiences, knowledges, and truths’ shape legal practices and interpretations14 in the context of Indigenous/non-Indigenous disputes.  To date, the duty to consult and accommodate jurisprudence relies heavily on common law to the exclusion of Indigenous legal traditions and principles.  In this dissertation, I assert that creating a more balanced approach that draws on both common law and Indigenous legal                                                    14 Emily Snyder, Val Napoleon & John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources” (2015) 48(2) UBC L Rev 593 at 607.   5 traditions is useful to create a normative framework to guide the development of a relational approach to the duty to consult and accommodate. 1.2 Situating My Work Indigenous legal theorists have been undertaking the difficult work of revitalizing Indigenous legal systems and visioning how Canadian courts might consider such systems in developing Aboriginal rights jurisprudence.  John Borrows, for example, translates Indigenous legal traditions for non-Indigenous legal actors through the use of narrative and case law method to break down some of the institutional and intellectual barriers that exist within the Canadian legal system in considering Indigenous laws.  Val Napoleon has created a respectful consultation methodology to create dialogue within Indigenous communities in an effort to document Indigenous legal traditions across Canada.15  Napoleon does this by personally collecting and training other researchers to collect Indigenous stories and analyze those stories collectively using the case law method.  In this way, the researchers are able to identify common themes across stories that illustrate particular Indigenous laws and document a layered, nuanced interpretation of such laws.  Along with Borrows and Napoleon, other Indigenous scholars, such as Gordon Christie, James Sákéj Youngblood Henderson, Lucy Bell, Jaime Battiste, Tracy Lindberg to name a few, critically engage Canadian Aboriginal rights jurisprudence to illuminate the colonial underpinnings of the judicial reasoning and precedents.  Often these scholars engage in these critiques by drawing on Indigenous knowledge and laws.                                                    15 See generally Val Napoleon & Hadley Friedland, “An Inside Job: Engaging with Indigenous Legal Traditions through Stories” in Dale Turner, ed, Oxford Handbook on Indigenous Governance (Oxford: Oxford University Press) [forthcoming] [Napoleon & Friedland, "An Inside Job"].   6 Many non-Indigenous scholars also articulate ways in which the legal systems could work together productively.  These scholars include Patrick Macklem, Mark Walters, Shin Imai, Brian Slattery, Jeremy Webber, and Bradford Morse to name a few. Like these and other scholars, this dissertation is an attempt to articulate an approach for Indigenous legal systems to interact in respectful relationships with the Canadian legal system.  Elsewhere I have critiqued the colonial underpinnings of Canadian Aboriginal rights jurisprudence.16 In this dissertation, I attempt to bridge the gaps between Indigenous legal traditions and the non-Indigenous legal system.  This dissertation builds on the ideas put forth by Borrows, Napoleon and other Indigenous and non-Indigenous scholars, in recognizing their calls to finds ways for Indigenous legal systems to speak within the Canadian legal system. In heeding this call, I attempt to create a new framework based on bijural principles to bridge the current chasm between Indigenous and non-Indigenous legal systems. 1.3 Starting Points My first starting point is that Indigenous communities have developed effective ways to manage disputes that arise both within their own communities and in relationships with non-Indigenous communities.  Further, these Indigenous dispute resolution mechanisms are relevant and useful to contemporary issues and would improve the content and relevance of Canadian Aboriginal law in resolving Indigenous/non-Indigenous disputes.  As Emily Snyder, Val Napoleon and John                                                    16 See e.g. Kirsten Manley-Casimir, “Creating Space for Indigenous Storytelling in Courts” (2012) 27:2 CJLS 231 [Manley-Casimir, "Creating Space"]; and Kirsten Manley-Casimir, “Incommensurable Legal Cultures: A Vision of an Alternative World” (2012) 30:2 WYAJ 137 [Manley-Casimir, "Incommensurable"].   7 Borrows assert “significant intellectual resources … exist within Indigenous communities for thinking about and challenging social problems.”17 Drawing on these resources will enhance and further develop appropriate dispute resolution in the Canadian context. My second starting point is that Canadians value equality and do not believe Indigenous people should be criminalized, have shorter lifespans and live in impoverished conditions based solely on their ethnicity.  As such, it seems reasonable to suggest that many Canadians would like to find appropriate solutions to the issues Indigenous claims raise and that these solutions might require an element of distributive justice. My third starting point is that there is value in diversity.  Diversity of cultures, legal systems, values and ideas create a more interesting world and create the possibility to continue to improve our social and democratic institutions by drawing on the best models from multiple sources.  Indigenous communities form an important part of the diversity within Canada and internationally.  Valuing diversity implies a commitment to encourage the on-going existence of various communities and to enable those communities to flourish.  So far, in the context of Indigenous communities within Canada, I would argue that we are not doing a very good job at creating conditions for on-going existence and flourishing. Creating conditions to support diversity, however, is arguably an important part of Canada’s identity. My fourth starting point is that law is socially constructed.  The values embodied by and replicated within the Canadian legal system emerge from a particular cultural                                                    17 Snyder, Napoleon & Borrows, supra note 14 at 597.   8 medium (namely Eurocentric) and reflect cultural biases.  In the context of Indigenous/non-Indigenous relations, such biases often determine the outcome of intercultural conflicts that arise and operate to the detriment of Indigenous communities and legal systems, creating an uneven playing field from the outset. 1.4 Acknowledging My Perspective As a non-Indigenous person writing in the area of Aboriginal law, I am acutely aware of my positioning as an outsider.  I am aware of the danger of imposing my own culturally biased views of what I think might be a reasonable solution to some of the intractable issues facing Indigenous peoples within Canada.  In approaching issues raised in Aboriginal law, I heed Taiaiake Alfred’s warning that non-Indigenous theorists have something to contribute to the debate but should first consider their own complicity, position, and prejudices in thinking through the issues.18 Further, I heed Alfred’s warning to be wary of positing ideas and solutions that might be imposed upon Indigenous communities and peoples to “solve” their problems.19   I also heed John Borrows’ call to make non-Indigenous institutions more fully reflective of the Indigenous cultures and legal traditions that have helped shape Canada.20  For this reason, I focus on how the Canadian courts and governments might approach the duty to consult and accommodate differently to improve processes to resolve disputes and enhance the relationship between Indigenous and non-                                                   18 Taiaiake Alfred & Glen Coulthard, "A Conversation on Decolonization" (Presentation organized by the Department of History and the First Nations Studies Program at the University of British Columbia, 15 March 2006). 19 Taiaiake Alfred, Wasáse: Indigenous pathways of action and freedom (Peterborough: Broadview Press, 2005) [Alfred, Wasáse] at 111. 20 John Borrows, “Creating an Indigenous Legal Community” (2005) 50 McGill LJ 153 [Borrows, "Creating an Indigenous Legal Community"] at para 41.   9 Indigenous peoples within Canada.  Rather than focusing on what Indigenous peoples might do in response to the existing system, I focus on the weaknesses and limitations of the current conceptualization of the duty to consult and accommodate and consider how to reformulate this duty in a way that enhances Indigenous/non-Indigenous relationships.   I give primacy to Indigenous critical theory where possible. Due to the relatively small number of Indigenous academics, giving primacy to these theorists does not necessarily mean that the majority of my writing references these theorists.  Rather, I have actively sought out relevant articles written by Indigenous theorists and engaged with the ideas such theorists have raised. I rely on Mari Matsuda’s approach of “looking to the bottom,” which involves explicitly seeking out the theories of those who are uniquely able to relate theory to the concrete experiences of oppression.21 Matsuda asserts that “looking to the bottom can lead to concepts of law radically different from those generated at the top.”22 I hope that by engaging with the ideas of critical Indigenous theorists and respecting their contributions and voices, I might mitigate some of the potential dangers of the limitations of my non-Indigenous perspective. 1.5 Creating a Common Language: Defining Key Terms In this dissertation, I use several terms that require clarification.  I use the term “Indigenous” to refer to peoples within Canada who self-identify as First Nations, Métis, Inuit and any related identities.  Although within these communities, most Indigenous peoples prefer to be referred to by the name of their individual community                                                    21 Mari Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations” (1987) 22 Harv CR-CLL Rev 323 at 325. 22 Ibid at 326.   10 or territorial grouping, in order to facilitate my discussion in this dissertation, I use the term “Indigenous” to denote First Nations, Métis and Inuit peoples.  I use the term “Aboriginal” when discussing the area of law that deals with Aboriginal rights and title claims under section 35(1) of the Constitution Acts.  I use the term “Indian” only to refer to that particular legal status under the Indian Act.23 I use the term “non-Indigenous” to refer to peoples, values and institutions associated with non-Indigenous Canadian culture.  I use this term to denote primarily Western liberal theories that have informed the development of the modern Canadian state.  My use of the term “non-Indigenous” does not include other bodies of thought such as Asian or Arab theory and philosophy. I deliberately choose this term to position Indigenous peoples, cultures and institutions as the norm against which the dominant culture is measured.  In positioning Indigenous peoples, cultures, and institutions as the norm linguistically, I decenter Canadian institutions to create more balance in the way Indigenous cultures and peoples are represented. I also use the term “Indigenous worldviews”.  I am aware that there is a great diversity in cultural values and beliefs among Indigenous communities within Canada.24 The worldview and beliefs of Indigenous peoples do not necessarily easily fit within one broad category.  Similarly, there is diversity within the dominant Canadian culture. For the purposes of discussing the issues coherently, however, it is necessary to                                                    23 RSC 1985 [Indian Act]. 24 Gerald R Alfred, Heeding the voices of our ancestors: Kahnawake Mohawk politics and the rise of native nationalism (Oxford University Press Toronto, 1995) [Alfred, Heeding the Voices] at 12; Mary Ellen Turpel, “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” (1989) 6 CHRYb 3 [Turpel, "Interpretive Monopolies"] at 6.   11 have some general terms in order to contrast Indigenous perspectives with those of mainstream Canadian culture. In this article, I use the term “colonialism” to refer to the European expansion into Canada, in which Europeans asserted sovereignty over the land and peoples and justified (and continue to justify) this assertion through a belief in their superiority over the Indigenous peoples already inhabiting the land. In my view, colonialism is an ongoing process that continues to affect the lives of all Canadians, to the detriment of Indigenous communities within Canada.  I use the term “colonial” to denote the attitudes of Eurocentric superiority which were key in dispossessing Indigenous nations of their lands and dismantling Indigenous governance and social systems. I also use the term “Indigenous legal traditions” and “Indigenous laws” interchangeably to describe the wide range of legal systems that Indigenous communities have developed to regulate relationships within their societies and with peoples beyond their own societies.25  These systems emerged from “Indigenous cultures as a contextually specific set of ideas and practices aimed at generating the conditions for greater peace and order.”26  Indigenous legal traditions “were self-complete, non-state systems of social ordering that were successful enough for [Indigenous groups] to continue as societies for tens of thousands of years.”27  These traditions included ways of dealing with disputes, ranging from intersocietal to                                                    25 Here I am using a definition that is similar to that used in the Indigenous Bar Association’s “Accessing Justice and Reconciliation Project,” online: Indigenous Bar <http://www.indigenousbar.ca/indigenouslaw/project-documents> (retrieved 5 September 2015). 26 Snyder, Napoleon & Borrows, supra note 14 at 596. 27 Val Napoleon & Hadley Friedland, “Indigenous Legal Traditions: Roots to Renaissance” in Marcus Dubber, ed, Oxford Handbook of Criminal Law [forthcoming] [Napoleon & Friedland, "Roots to Renaissance"] at 3.   12 interpersonal disputes and often include kinship systems and other ceremonial traditions such as the potlatch and sundance.  Importantly, Indigenous legal traditions have developed over generations through deliberation and debate.28 Furthermore, they have historically evolved and, despite the onslaught of colonialism, have survived or been revived to apply to contemporary circumstances. When drawing on principles supported by Indigenous legal traditions, I also rely upon principles found in cultural and social practices within Indigenous communities.  This broad view of what constitutes law is reflected in my approach that considers law as created not only by the state but also in social spaces to regulate relationships within and between communities.29 Finally, I use the term “intercultural” and “intersocietal” interchangeably to describe the space where Indigenous and non-Indigenous societies meet. I am aware of the longstanding debates on the definition of the term “culture” but do not address this debate in this dissertation.30  For the purposes of this dissertation, I use the term “culture” to describe all the things that have led to where a person is and to the development of that person’s perspective.  This idea of culture includes the social, political and geographical influences that impact a person’s identity.  In this dissertation, I use this term to denote a difference between Indigenous and non-                                                   28 John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) [Borrows, Canada’s Indigenous Constitution] at 35. 29 Robert M Cover, “The Supreme Court 1982 Term Foreword: Nomos and Narrative” (1983) 97 Harv L Rev 4 [Cover, "Nomos and Narrative"] at 4; Patricia J Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge, MA: Harvard University Press, 1991) at 7; Desmond Manderson, “Apocryphal Jurisprudence” (2001) 23 Stud Law Polit & Soc'y 81 [Manderson, “Apocryphal Jurisprudence”]. 30 See e.g. Russel Lawrence Barsh and James Youngblood Henderson,  “The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand” (1997) 42 McGill LJ 993.   13 Indigenous communities due to the different ways that knowledge, identity and values are transmitted within those societies. 1.6 Scope and Limitations As a non-Indigenous legal scholar, I am far removed from the realities on the ground in Indigenous communities.  I echo Hadley Friedland’s insight that “while legal scholarship does have contributions to make, the ‘heavy lifting’ of law will still remain in the hands of practitioners on the ground, acting on their responsibilities.”31 The lawyers working with Indigenous communities, both Indigenous and non-Indigenous, have a tremendous responsibility and key role in influencing changes within section 35 case law.  In addition, Indigenous communities hold the primary responsibility of working through Indigenous legal traditions within their communities to revitalize such traditions and making them responsive to the realities facing their communities.  There are many examples of this happening throughout Canada32 and increases in respectful, collaborative work between academics, practitioners and communities will continue to support everyone’s role in revitalizing and implementing Indigenous legal traditions.  Finally, judges and governments have an important to play in contributing to decolonization.  The cooperation of the judiciary and government in interrogating colonial assumptions, working collaboratively with Indigenous communities, and creating space for Indigenous laws to influence decision-making will be key                                                    31 Hadley Friedland, “Reflective Frameworks: Methods for Accessing, Understanding and Applying Indigenous Laws” (2012) 11:1 Indigenous LJ 1 [Friedland, “Reflective Frameworks"] at 39. 32 See e.g. Native Counselling Services of Alberta, Home/Fire: Ending the Cycle of Family Violence (Hinton, Alberta, 2014), which documents several community justice processes for dealing with family violence within Indigenous communities within Canada.   14 components in restructuring Canada’s institutions to create more justice and fairness for Indigenous nations. Because my dissertation has the potential to become unduly expansive, it is imperative to limit the breadth and scope of the literature that I consider and analyze in developing a relational framework to the duty to consult and accommodate. Each of the four principles of respect, recognition, reciprocity and reconciliation could form a dissertation on its own.  There are many bodies of literature that address each of the four principles and it is not possible for me to consider all of the various relevant literatures in my discussion of each principle.  As a result, one way in which I have scoped the discussion is by starting from the standpoint that what has been largely missing from the development of Aboriginal law generally and the duty to consult specifically is the influence of Indigenous legal traditions and legal theory. As such, where possible, I give significant consideration to what Indigenous theorists say about Indigenous legal traditions to interpret each principle.   Another limitation is that because I spend a lot of time articulating how the four principles in the relational framework might be interpreted when looking through a bijural lens, a main focus of my dissertation is on theory.  Although I deal with some practical actions and models for applying this relational framework, particularly in my discussion of applying the framework in Chapter 8, there is much more work that can be done on how to operationalize the relational framework and apply it to Aboriginal law disputes.  This is work I plan to tackle in the future.  A related limitation stems from the discipline in which I am writing – the discipline of law.  As a legal scholar, for the purposes of this dissertation, I focus on   15 case law emanating from the Supreme Court of Canada and other Canadian courts, as well as Indigenous philosophies and laws.  As a social justice lawyer, I want to believe that judges and lawyers in the Canadian system are capable of learning about and applying Indigenous laws and principles.  The theoretical difficulty that arises is that the Canadian legal system is inherently conservative.  The Canadian legal system’s reliance on precedent makes it difficult to imagine fundamental changes being made within that paradigm.  It is also an institution based on Eurocentric moral and cultural values and its institutions reinforce such values to maintain the status quo.33  The Canadian court system has been heavily criticized for having processes hostile to Indigenous claims34 and for rendering judgments that serve colonial interests. These critiques, in my view, are valid, and court judgments often leave much to be desired with respect to advancing Aboriginal rights in Canada. Recognizing the limits of the Canadian legal system in advancing Aboriginal rights, my purpose here is two-fold:  1. to provide constructive suggestions to judges on how they might approach the interpretation and development of the duty to consult and accommodate in Aboriginal-rights cases, within the structural constraints of the colonial legal system; and   2. to suggest a new approach that the Canadian government might take to rebuild relationships with Indigenous communities through the duty to consult and accommodate.   In addressing how judges and governments might approach the duty to consult and accommodate differently, I do not wish to diminish the agency of Indigenous nations in                                                    33 Roberto M Unger, What Should Legal Analysis Become? (New York, Verso: 1996) at 38. 34 See e.g. Bradley Bryan, “Legality Against Orality” (2011) 9(2) Law, Culture and the Humanities 261 [Bryan, “Legality Against Orality”] (rules of evidence are hostile to Indigenous oral history and force Indigenous claimants to transform their understandings of oral history to support their claims).   16 dismantling colonialism.  Rather, as a legal scholar I focus on changes that can be made within Canadian institutions.  I leave the difficult work of dismantling colonialism while living within it and revitalizing Indigenous governance systems to Indigenous thinkers and leaders. In making suggestions to improve how judges make decisions in Aboriginal rights cases, I remain aware of the very persuasive arguments for establishing separate Indigenous courts or other institutions to decide such cases.35 I share Judge Mary Ellen Turpel’s view, however, that reforming the mainstream legal system and creating separate pathways to justice for Indigenous communities need not be an either/or proposition. Turpel writes, We spent several years in a distracting debate over whether justice reform involves separate justice systems or reforming the mainstream system. This is a false dichotomy and fruitless distinction because it is not an either/or choice. The impetus for change can be better described as getting away from…colonialism and domination. ...Resisting colonialism means a reclaiming by Aboriginal people of control over the resolution of disputes and jurisdiction over justice, but it is not as simple or as quick as that sounds. Moving in this direction will involve many linkages…36 The establishment of separate, culturally appropriate Indigenous justice systems is an ideal.37 Indigenous communities need time to design and establish such institutions, however, as well as to build capacity and resources to support their ongoing                                                    35 This paragraph is reproduced from Manley-Casimir, “Creating Space”, supra note 16 at 233-34. 36 Mary Ellen Turpel, “Reflections on Thinking about Criminal Justice Reform,” in eds. Richard Gosse, James Youngblood Henderson & Roger Carter, Continuing Poundmaker and Riel’s Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (Saskatoon: Purich Publishing, 1994) 206 [Turpel, “Reflections”].  37 In Manley-Casimir, “Incommensurable”, supra note 16, I argue that the Canadian legal system is ill equipped to deal with Aboriginal-rights cases because of the different world views that form the basis of the Canadian legal system and of Indigenous legal orders. Although this argument may seem to contradict my suggestions here, it is my contention that changes still need to be made to the current system in the interim until separate, more culturally appropriate forums can be established and maintained to deal with Aboriginal claims.   17 functioning. I hope the suggestions made in this dissertation on ways to reform the Canadian justice system may enable Canadian judges to make more equitable, fair, and respectful decisions when faced with Aboriginal claims, until such time as more culturally appropriate dispute-resolution mechanisms are set up.  I also rely on critical theorists, both Indigenous and non-Indigenous, who recognize the exclusion of Indigenous voices in the development of Aboriginal law and theorize with this stark absence in mind. Critical legal theory posits that law is not only made by the state but also is found in everyday experiences.38  This approach democratizes law in its insistence that legal knowledge is not the exclusive domain of legal professionals; rather this approach emphasizes that everyone contributes to the creation of law and legal meaning at all levels of society. In accordance with this approach, I do not exhaustively engage with every early influential European theorist in my discussions of each principle although I do acknowledge relevant bodies of literature. Since my approach is focused on reconceiving the duty to consult and accommodate to include Indigenous legal traditions and principles, I create as much space as possible to do so throughout this dissertation.    Further, because this dissertation is legal in nature and I take an interdisciplinary approach, I do not engage in a comprehensive way with philosophical writers or other experts in various other disciplines that might be relevant. I do at points draw on useful theories in relation to the various principles from a variety of                                                    38 See e.g. Cover, "Nomos and Narrative" supra note 29; Desmond Manderson, “In the Tout Court of Shakespeare: Interdisciplinary Pedagogy in Law” (2004) 54 J Legal Educ 283 [Manderson, "Tout Court"]; Davina Cooper, Challenging Diversity: Rethinking Equality and the Value of Difference (Cambridge, UK: Cambridge University Press, 2004).   18 literatures to expand upon how the relationship between Indigenous and non-Indigenous peoples and legal systems might be better formulated. My engagement with such literatures is meant to be illustrative rather than comprehensive. With respect to my critical legal analysis, although I engage with feminist theory and critique, I do not explicitly engage in a gendered analysis of the various principles.  Rather, I focus more broadly on the interpretation of the principles through a lens of non-Indigenous and Indigenous theory and law.  I am mindful of the importance of engaging in a gendered analysis of Indigenous legal traditions and Canadian law.39  Due to space constraints, this type of analysis will be left for future work. My analysis and discussion is focused on the space between Indigenous and non-Indigenous cultures.  As such, I do not address in any particular detail the way in which Indigenous communities might organize their own internal affairs or deal with issues that arise within such communities in relation to the duty to consult and accommodate.  In my view, these decisions and internal issues are best dealt with at a community level with outside expertise being sought when needed and appropriate.  As a result, I focus on what Canadian judges and the Canadian government might do to implement the relational framework I advocate. In addition, because I focus on the space between Indigenous and non-Indigenous cultures, I suggest four principles that find support in many, if not most, Indigenous legal traditions.  I am aware of the emerging debate about the problems with pan-Indigenous approaches and the need to focus more specifically on particular                                                    39 See e.g. Snyder, Napoleon & Borrows, supra note 14 at 598.   19 Indigenous legal traditions.40 Although I do not address this debate specifically in the context of this dissertation, the relational framework I advocate would be improved, in my view, by including a consideration of the specific Indigenous legal traditions relevant to the dispute at hand.  The four principles within the framework provide a starting point for a bijural approach to the duty to consult and accommodate, which actively supports a more specific consideration of individual Indigenous legal traditions within the context of Indigenous/non-Indigenous disputes. Later in this dissertation I advocate for dialogue between Indigenous and non-Indigenous people to come up with appropriate solutions to intercultural disputes. For the purposes of this dissertation, I was not able to complete fieldwork to create dialogue with Indigenous peoples about the choice and interpretation of the principles and the application of the framework.  I did not engage in fieldwork because I hold the view that building relationships with Indigenous communities takes time and needs to be done respectfully and appropriately.41  During the time I had to complete this dissertation, I was not able to ensure that I could spend the amount of time needed to develop and maintain those relationships. This is a shortcoming that I take very seriously, particularly because I try as much as possible to live my theory. Although this does not mitigate this shortcoming fully, this dissertation is in part a result of bijural dialogue since two Indigenous mentors42 have provided input and comments to which                                                    40 See e.g. Napoleon & Friedland, "Roots to Renaissance", supra note 27 at 3; Friedland, “Reflective Frameworks", supra note 31 at 15. 41 Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (New York: Zed books, 1999) at 3. 42 I have relied heavily on Gordon Christie’s detailed comments on this dissertation and done my best to address them.  In addition, I have consulted at several points with Kimberly Murray, who taught me her Medicine Wheel approach, which forms the basis of the relational framework I propose.   20 I have attempted to respond in my analysis. At some point in the future, however, I would welcome the opportunity to create dialogue with Indigenous peoples and communities about the ideas in this dissertation. This leads to a final limitation.  Although more and more Indigenous academics and other allies research and write in a respectful way about Indigenous legal traditions,43 information with respect to and the accessibility of such traditions to non-Indigenous academics remains limited.44  As such, I have relied on what is currently available to support the identification and interpretation of the four principles that form the contours of the relational framework I advocate.  As more research, writing and thinking on Indigenous legal traditions is completed and becomes more accessible, academic thought in relation to principles that might form the contours of a bijural approach will continue to evolve. 1.7 Theoretical Perspective In this dissertation, I reconceptualize the duty to consult using two primary theoretical approaches: (1) a decolonial approach; and (2) a bijural approach.  Using these two complementary approaches deepens my analysis and provides a useful                                                    43 In addition to John Borrows’ extensive work, another key example is the Indigenous Bar Association’s project, in partnership with the Truth and Reconciliation Commission and the Indigenous Law Research Unit at the University of Victoria, which has created syntheses of seven Indigenous legal traditions from across Canada using a culturally respectful research protocol with the participating Indigenous communities. Dr. Val Napoleon leads this project and Hadley Friedland is the Project Coordinator.  Project information and materials are available online: Indigenous Bar <http://www.indigenousbar.ca/indigenouslaw> (retrieved 5 September 2015). 44 Friedland, “Reflective Frameworks", supra note 31 at 12. Friedland points out that the most ideal resources for learning about and accessing Indigenous laws, which require full immersion in a specific culture to access, are the least available resources at this time.  She also points out that the most available resources are those that are publicly available, which includes ethnographic work by outsiders to the communities, fiction by community members and transcripts of legal proceedings.  She notes, however, that these are the least ideal resources as they raise serious questions of bias and legitimacy.  Her article provides a thoughtful way forward to work respectfully and rigorously with Indigenous laws as law.   21 theoretical lens through which to consider how the duty to consult and accommodate jurisprudence might be developed to more fully support the purpose of reconciliation underlying section 35.  Specifically, it enables me to consider not only the legal integrity of the duty to consult jurisprudence but also the purpose of the duty in fostering important societal values. 1.7.1 A Decolonial Approach to the Duty to Consult and Accommodate First, I approach the problem of reconceptualizing the duty to consult using a decolonial lens.  This approach includes critically considering Canadian jurisprudence, unpacking its colonial assumptions and analyzing how to reformulate it in a way that does not perpetuate colonialism.  James (Sákéj) Youngblood Henderson has proposed a three-stage process by which Indigenous legal thinkers might deconstruct Canadian case law and revitalize Indigenous legal principles within the Canadian legal framework.45  Henderson argues that Indigenous scholars and lawyers need to  1. decolonize judicial precedents by interrogating the colonial assumptions upon which such precedents are based;46 2. renew Indigenous ecological orders which have determined the principles and structures of Indigenous societies and laws;47 and  3. recognize diversity as the prime assumption of the legal system while resisting false universality and impartial reasoning.48 Although I approach the dissertation as a non-Indigenous person, Henderson’s process provides a useful perspective on how one might use a decolonial approach to critique Aboriginal law.                                                    45 James (Sákéj) Youngblood Henderson, “Postcolonial Indigenous Legal Consciousness” (2002) 1 Indigenous LJ 1 [Henderson, "Postcolonial"]. 46 Ibid at para 77. 47 Ibid at para 86. 48 Ibid at para 96.   22 Using a decolonial lens, I draw on theorists who work in the area of critical theory generally and specifically in critical Indigenous theory. Indigenous communities within Canada have suffered as a result of the continuing imposition of European culture and values on such communities through colonial structures.  One result of this is the on-going construction of Indigenous Peoples and cultures within Canada as the source of the problem.  By contrast, Indigenous thinkers have effectively pointed out that it is important to deconstruct and interrogate colonial structures and governments to understand the way in which Eurocentric values and assumptions perpetuate the false construction of Indigenous Peoples as inferior, primitive and dependent. Increasingly, Indigenous theorists call into question the legitimacy of colonial institutions to provide justice for Indigenous Peoples on the basis that such institutions are set up to support decision-making that maintains the non-Indigenous status quo.49 In law, many Indigenous scholars critique the decisions of Canadian courts using a decolonial lens to uncover the Eurocentric biases and values underlying Canadian jurisprudence.50 In addition to sound legal and analytic reasoning, such critiques are convincing because they are written by Indigenous thinkers and are infused with their particular Indigenous worldviews and cultural understandings.51 Many theories of                                                    49 See e.g. Alfred, Wasáse, supra note 19 at 155. 50 Gordon Christie, “A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation” (2005) 23 WYAJ 17 [Christie, "A Colonial Reading"]; Turpel, "Interpretive Monopolies", supra note 24; Henderson, "Postcolonial", supra note 45; Alfred & Coulthard, supra note 18. 51 It is important to recognize that Indigenous theories of decolonization reflect the particular cultural viewpoints of the theorist.  Taiaiake Alfred, on one hand, as a Mohawk from Kahnawá:ke, is critical and outspoken - respected attributes within Mohawk culture.  His theory of decolonization reflects his views of his community as sovereign and embodies the Mohawk warrior ethic (Alfred & Coulthard, supra note 18). John Borrows, on the other hand, an Anishinabe of the Chippewas of the Nawash First Nation, purposefully avoids direct confrontation in keeping with the values of his Nation. In Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) [Borrows, Recovering Canada] at 21, John Borrows asserts “that the most important message in First Nations   23 decolonization center on the understanding that this form of critique is both legitimate and powerful because the critique privileges Indigenous ways of knowing, provides a counter-narrative from the viewpoint of the colonized, and considers the difficult questions of how theory will play out on the ground in Indigenous communities.52   Indigenous theorists provide insights on how to bridge two seemingly contradictory worldviews and create dialogue between Indigenous legal traditions and the Canadian legal system.  Because many Indigenous theorists have access to Elders and other with insight on Indigenous laws and ways of thinking, such theorists occupy a leadership position within the project of decolonization.  Decolonization theories, in particular those written by Indigenous thinkers, are important to consider since Indigenous thinkers are uniquely positioned to provide a critique of Canadian legal developments for the following reasons: 1. Indigenous leaders have creative and valuable ideas on avenues towards decolonization;  2. Indigenous thinkers are uniquely positioned53 to think through issues affecting their particular communities and ground their theories in local realities; and  3. Indigenous thinkers are among the few with access to the knowledge particular to their communities, including the cultural knowledge central to community life and the wisdom of Elders to inform their theoretical approaches. In thinking through the issues facing Indigenous communities, Indigenous peoples experience the violence of colonialism in a totally different way than non-Indigenous                                                                                                                                                                   stories may be the least obvious on first hearing.  The speaker may even intentionally bury the primary motivation for relating the story to deflect its directness and thereby avoid confrontation”. 52 Smith, supra note 41 at 2. 53 By giving primacy to Indigenous thinkers, I am subscribing to the notion put forward by critical legal scholars that Indigenous people have a unique voice and position from which to assess Canadian law: see Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction (New York: New York University Press, 2001) at 9.   24 peoples;54 as a result, Indigenous thinkers are undertaking the difficult task of theorizing decolonization while simultaneously living within the realities and systems of colonial violence.55  Decolonization theories are based upon recognition and respect for Indigenous peoples and the need for solutions to be developed in accordance with and from within Indigenous cultural frameworks.  The end goal of such theories is the recognition of Indigenous sovereignty, envisioned in various ways.56  Further, these theories explore the ways in which colonial structures tend to reinforce the status quo and limit the recognition of different cultural values, legal systems and worldviews.   In this dissertation, I rely on theories of decolonization, particularly those written by Indigenous scholars, to provide a lens through which to analyze Canadian case law. Uncovering the colonial assumptions and values that underpin decisions in Canadian courts is important to determine whether or not Canadian courts can provide justice for Indigenous Peoples who choose to litigate their claims within the Canadian legal system.  In examining Canadian jurisprudence through a decolonial lens, I                                                    54 Robert M Cover, “Violence and the Word” (1985) 95 Yale LJ 1601 [Cover, “Violence and the Word”] at 1609. 55 John Paul Lederach, The Moral Imagination: The Art and Soul of Building Peace (Oxford; New York: Oxford University Press, 2005) [Lederach, Moral Imagination] at 59.  For a compelling example, see Larry Chartrand, “The Story in Aboriginal Law and Aboriginal Law in the Story: A Métis Professor’s Journey” (2010) 50 Sup Ct L Rev 89. 56 Indigenous scholars generally envision a significant amount of independence for Indigenous governments with varying degrees of interaction with the Canadian state.  Taiaiake Alfred, for example, relies on the seminal ideas underlying the Two Row Wampum, where two boats, representing European and Indigenous governments, travel side-by-side and do not interfere in each other’s autonomy, freedom, or power {Taiaiake Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (Toronto: Oxford University Press, 1999) [Alfred, Peace, Power, Righteousness] at 52-53}. Other Indigenous scholars envision independent Indigenous governments with more interdependence with the Canadian state.  John Borrows, for example, asserts that Canada should become more Indigenous within its mainstream governance institutions and that more Indigenous people should participate in and inform the development of Canadian institutions (John Borrows, Recovering Canada, supra note 51 at 140).   25 unpack underlying colonial values and assumptions that may have influenced the development of the duty to consult and examine how a decolonized doctrine of the duty to consult might be constructed. 1.7.1.1 Using a Decolonial Approach as a Non-Indigenous Scholar In approaching the problem using a decolonial lens, an important question arises regarding what a decolonial approach looks like for a non-Indigenous person doing this type of work.  While several non-Indigenous theorists have revealed the colonial underpinnings of Canadian law,57 an exploration of some key ways to overcome the difficulties of approaching the issues raised in Aboriginal law from the theoretical perspective as a non-Indigenous scholar might be helpful in justifying and legitimizing the usefulness of such an approach. One key starting point is for non-Indigenous theorists to interrogate their personal history and culture to understand their complicity in the continuing oppression and exploitation of Indigenous peoples perpetuated through colonial structures and ideology.58  Interrogating this positioning is a difficult and uncomfortable task since it causes one to question the truths upon which one’s identity is built.  Undertaking this task is important, however, since colonial ideology has negative effects on both Indigenous and non-Indigenous peoples.                                                    57 See e.g. Douglas C Harris, Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925 (Vancouver: UBC Press, 2008); Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World, 1492-1640 (Cambridge, UK: Cambridge University Press, 1995); Renisa Mawani, “Genealogies of the Land: Aboriginality, Law, and Territory in Vancouver’s Stanley Park” (2005) 14:3 Soc & Legal Stud 315. 58 Alfred & Coulthard, supra note 18.   26 In the context of legal theorizing, such an interrogation involves examining and re-examining one’s own assumptions and perspectives in considering the issues raised by Aboriginal law.  Further, it includes the need to critique the assumptions that underlie colonial institutions, which forces one to rethink his or her view of the world.  In sifting through the legal discourse and reasoning in Aboriginal rights cases, it is necessary to unpack the ways in which Canadian courts reinforce power differentials between Indigenous and non-Indigenous peoples within Canada by making decisions that support Eurocentric values and beliefs.  In doing so, non-Indigenous theorists can deconstruct the ideology underlying colonial institutions and envision new ways to restructure social, political, legal and economic institutions. Non-Indigenous theorists can work in concert with Indigenous thinkers to push people beyond colonial ideologies.59  In doing this important work, non-Indigenous theorists need to recognize the appropriate limits of their contributions.  As Alfred points out, non-Indigenous theorists can act as allies60 in dismantling colonialism if they leave the responsibility of providing solutions to problems facing Indigenous communities to Indigenous thinkers.61  It is up to non-Indigenous people to work at a personal level to decolonize and to work within non-Indigenous communities to decolonize others62 while Indigenous leaders and thinkers appropriately focus on                                                    59 Ibid. 60 Here I use the word “allies” to denote non-Indigenous people who examine their own complicity within colonial institutions, accept their own humility in not knowing the reality facing Indigenous peoples, actively seek to learn in relationship with Indigenous peoples and communities, and most importantly, have earned the trust of Indigenous peoples.  I do not therefore use the term allies lightly. 61 Alfred & Coulthard, supra note 18. 62 Ibid.   27 creating approaches to deal with issues within their own communities, with other Indigenous communities, and with non-Indigenous governments. Another key starting point of using a decolonial critique as a non-Indigenous scholar is being aware that in trying to critique Canadian law through this lens, I do not inadvertently devalue the resistance and influence of Indigenous peoples and legal traditions on the development of Canadian law.  As Craig Womack, a Creek scholar, argues: …it is just as likely that things European are Indianized rather than the anthropological assumption that things Indian are always swallowed up by European culture.  I reject, in other words, the supremacist notion that assimilation can only go in one direction, that white culture always overpowers Indian culture, that white is inherently more powerful than red, that Indian resistance has never occurred in such a fashion that things European have been radically subverted by Indians.63 As I engage in a decolonial critique, I am aware of the need to struggle against the urge to portray Indigenous peoples in a one-dimensional light as victims of the ugly colonial machine.  Indigenous peoples have resisted colonial policies, practices and laws throughout Canada’s history and continue to do so.  Further, Indigenous legal traditions have influenced the development of legal doctrine in the area of Aboriginal law.  In addition to the past influence of Indigenous laws in this developing area of law, I add my voice to the chorus of other scholars who assert that there is both legitimacy                                                    63 Craig S Womack, Red on Red: Native American Literary Separatism (Minneapolis: University of Minnesota Press, 1999) at 12. The Muscogee (or Muskogee), also known as the Creek, are a Native American people traditionally from the southeastern woodlands.  Today Muscogee people live primarily in Oklahoma, Alabama, Georgia, and Florida.   28 and value in more heavily infusing Indigenous legal principles into Canadian jurisprudence on Aboriginal law.64  1.8 A Bijural Approach to the Duty to Consult and Accommodate In advocating for a bijural approach to the duty to consult and accommodate, I draw on both Indigenous and non-Indigenous theories from a variety of disciplines to discuss the content and interpretation of each principle.  My approach is deliberately focused on creating links between Indigenous and non-Indigenous legal traditions.  In addition, I draw on intercultural theories of dispute resolution to frame my analysis.  These theories consider how disputes might be resolved where two cultures come into contact and may reflect different cultural contexts. Intercultural dispute resolution theory also includes theorists who consider such disputes in other countries and cultural contexts. Throughout my analysis, I also draw on other literatures including legal pluralism, legal anthropology and environmental legal theory. 1.9 Methodological Approach In my attempt to further develop the duty to consult, the first and most important way that I draw on Indigenous legal traditions is by using the Medicine Wheel to frame my approach to each principle and to rethink the overall relationship between Indigenous and non-Indigenous peoples within Canada. Kimberly Murray, an accomplished Mohawk lawyer and the current Assistant Deputy Attorney General of the Aboriginal Justice Division, Ministry of the Attorney General of Ontario, taught me                                                    64 See e.g. Borrows, Recovering Canada, supra note 51; Henderson, "Postcolonial", supra note 45; Mark D Walters, “The Morality of Aboriginal Law” (2006) 31 Queen's LJ 470 [Walters, "Morality of Aboriginal Law"]; D’Arcy Vermette, “Dizzying Dialogue: Canadian Courts and the Continuing Justification of the Dispossession of Aboriginal Peoples” (2011) 29 WYAJ 55 [Vermette, “Dizzying Dialogue"].   29 her Medicine Wheel approach to organizing her thoughts in writing papers, creating strategic directions in her professional work and honing her litigation strategies.65 This approach emphasizes the holistic and relational aspects of the processes necessary to move from one reality towards a new vision or outcome.  When sharing her understanding of the teaching, Kim pointed out that this teaching is interpreted in many different ways and this is just her particular interpretation.  In using this approach to frame my discussion of each principle and to organize my argument throughout this dissertation, I have interpreted Kim’s teaching and adapted it to my purpose.  I hope that I have used the framework appropriately and I take responsibility for any errors in interpreting and applying this framework.                                                    65 Kimberly Murray was formerly the Executive Director of the Truth and Reconciliation Commission of Canada. This teaching was given to Kimberly Murray by two Ojibway women, Marian Jacko and Ann Solomon. Kimberly provided me with permission to share and use this approach within my dissertation.  It is worth noting that as a non-Indigenous person, using this framework to try and write this paper has been challenging.  Using this approach rather than the Western approach I am more accustomed to, however, is my way of engaging in an effort to understand across cultures. It also exemplifies the need to take risks, to live with discomfort and to engage cross-cultural others with humility.  As I have written this paper, I have gone back to Kim and my supervisor Gordon Christie for feedback that has furthered this process of cross-cultural engagement and has enhanced my imperfect understanding of Indigenous perspectives and legal theory.   30  Figure 1.1 - Medicine Wheel Framework to Approach Issues in Aboriginal Law  The Medicine Wheel teaching involves Four Directions: at the South Door, the focus is on relationships; at the West Door, the focus is on reflection; at the North Door, the focus is on movement; and at the East Door, the focus is on vision (see Figure 1.1 above).  At the South Door, by which you enter, the focus on relationships prompts consideration of all the relationships that might be affected by the issue under consideration.  At the West Door, the focus on reflection encourages consideration and   31 acknowledgement of the historical context in which the issue arises.  At the North Door, the focus on movement encourages consideration of the ways in which to move forward by keeping in mind the relationships at stake and the history that provides much-needed context.  Finally, at the East Door, the focus on vision provides an opportunity to consider “a vision of how things are and might be…[and understand] the actual in light of the possible.”66 In addition to the Medicine Wheel framework, I draw on Indigenous legal principles and critical Indigenous theory to interpret each principle. I do this in order to rebalance the discussion by infusing it with Indigenous voices and ideas. By drawing on Indigenous legal principles, I hope to highlight the multijuridical and legally pluralistic framework that acknowledges the common law, civil law and Indigenous law roots of Canada.67 Such an analysis provides new perspectives and possibilities for reconceptualizing the duty to consult. Throughout the dissertation I rely primarily on written material for the purposes of my analysis. I consider relevant literature written by non-Indigenous and Indigenous theorists.  Where possible, however, I give primacy to Indigenous theorists. This results from the recognition that Indigenous Peoples, despite the diversity within and among different groups, relate to the world in a significantly different way than non-Indigenous people.  These unique worldviews inform both the way in which ideas are written and orally expressed and the ideas themselves.  In discussing theories of                                                    66 Unger, supra note 33 at 24. 67 In "Creating an Indigenous Legal Community", supra note 20 at para 23, Borrows advocates for the use of this framework for recognition of Indigenous legal traditions within the Canadian legal system.   32 decolonization, therefore, Indigenous peoples are uniquely situated to design and confront the processes of decolonization in culturally appropriate ways. I also take a wide view of the law and what literatures and ideas might be useful in thinking through the complex issues raised in this work.  I follow John Paul Lederach’s lead and am open to ideas that come to me serendipitously and through my peripheral vision.68  Lederach, who works in the area of intercultural dispute resolution on the ground, suggests that often the best ideas come from unexpected places and that sometimes focusing on the problem with tunnel vision excludes legitimate and effective strategies.  He describes peripheral vision as “the capacity to situate oneself in a changing environment with a sense of direction and purpose and at the same time develop an ability to see and move with the unexpected.”69 Following Lederach’s lead, I have remained open to literatures and theories that may not seem central.  This has not distracted from my main focus on decolonial and intercultural theories, but has instead enhanced my analysis throughout. In between each chapter of this dissertation, I have included, in italic type, a hypothetical story about the Yellow Valley First Nation and a development company called Green Co. that aims to develop a mining project on Yellow Valley First Nation’s lands.  The role of this story in my dissertation is to provide an illustration of how to operationalize the relational framework I propose in the context of a dispute involving Indigenous rights and non-Indigenous interests.  On one hand, the story illustrates the pitfalls of the duty to consult and accommodate when it is not focused on building                                                    68 Lederach, Moral Imagination, supra note 55 at 118. 69 Ibid.   33 relationships.  On the other hand, the story illustrates the positive benefits to both parties when the duty to consult and accommodate keeps Indigenous/non-Indigenous relationships as the central focus of consultation and accommodation processes. The Yellow Valley First Nation story illustrates the implementation of a relational framework to the duty to consult and accommodate through fictional storytelling.  By including narratives, I ask the reader to consider the way in which the fictional account of a relationship between a development company and an Indigenous nation relates to the larger discussion of the principles-based framework in this dissertation.  These stories illustrate two contrasting approaches to the duty to consult and accommodate which, on one hand, creates conflict over a resource extraction project and, on the other, creates a collaborative partnership in such a project.  These narratives illustrate the difference between the government’s current checklist approach to consultation and a relational approach to the duty to consult and accommodate. Finally, I attempt to illustrate how a principles-based approach to duty to consult might work in the real world.70  I do this by including a “How” section in my discussion of each principle in which I suggest concrete strategies that could be implemented in relation to each principle.  In the final chapter, I then apply the                                                    70 The importance of grounding my analysis in real world examples has been emphasized to me in various ways throughout my academic career.  At my oral defence of my LLM thesis, the hardest question that I was asked was by Lorena Fontaine, an accomplished Cree and Anishnabe scholar and the only Indigenous person on my committee.  She asked me how my theory would work in a small First Nations community of 50 people made up mainly of women.  In addition, throughout the drafting of this dissertation, Gordon Christie has pushed me to think about how my ideas would actually work in practice and how my ideas might be presented in a way that actually persuades the Supreme Court of Canada to implement this approach in the context of the duty to consult.  Attempting to address these questions has been a difficult yet worthwhile struggle.   34 principles-based framework to the duty to consult and accommodate to demonstrate how this approach might be applied in practice. 1.10 A Note on Structure In writing about the principles, I structured each chapter to address what the principle is and what Indigenous and non-Indigenous perspectives might contribute to the interpretation of each principle.71  I then address why each principle is important to implement and how the principle might be implemented on the ground.  Although each of the chapters focusing on the four principles addresses these questions, I found that in some cases Indigenous conceptions of the principles were more similar to non-Indigenous conceptions (such as reciprocity) than in the context of other principles (such as respect).  As a result, the structure of each chapter dealing with the principles differs somewhat based on my review of the relevant literature. In each of the chapters discussing the principles (Chapters 4 through 7), however, I address the fundamental questions of what, why and how with respect to each principle.                                                    71 I initially tried to use the Medicine Wheel framework within each principle by structuring my discussion of each principle according to the considerations in the Four Directions.  I therefore initially structured the discussion as follows: 1. Relationships – I considered which relationships were implicated in each principle and the considerations that might arise within the various relationships.  For example, I considered respect in the context of Indigenous and non-Indigenous government, between Indigenous and non-Indigenous peoples more generally and among Indigenous peoples and non-Indigenous peoples separately. 2. Reflection – I reflected on whether or not that principle had been implemented in the context of Indigenous/non-Indigenous relations within Canada. 3. Movement – I considered how one might move towards implementing each principle. 4. Vision – I discussed what a world in which each principle was implemented might look like. After writing several chapters, I realized that this structure was repetitive in that the relationships implicated likely would be the same for each principle.  Further, I realized that in approaching the chapters dealing with each principle using this structure, it took too long to get to what the principle I was actually discussing might mean (only in the third section on movement did I start to discuss interpretations of that principle).    35 Finally, I deliberately chose not to set out a concise definition of each principle for the purposes of my framework.  One of the advantages of using principles to guide a relationship-based approach is the flexibility of the principles; as I discuss in Chapter 3, the interpretation of the principles is flexible in that it can evolve over time to adapt to contemporary needs.  As a result, setting out a completely static definition of each principle may be counter-productive.  Since creating a new vision of Canadian society in which Indigenous and non-Indigenous people move along a journey of reconciliation will necessarily be non-linear, unpredictable and treacherous, the principles need to be sufficiently flexible to meet the demands of the journey.  So rather than setting out an authoritative definition of the principles, I sketch the broad contours of what each principle might mean and how it could support a relational approach to the duty to consult and accommodate. 1.11 Mapping My Path  In this Chapter, I have mapped out the dissertation, outlined the relevant terminology, my starting points, and my methodological and theoretical approaches. In Chapter 2, I examine how the Court has interpreted reconciliation in its case law and how that interpretation has evolved over time.  In considering the reconciliation jurisprudence, I conclude that the Court’s interpretation has changed over time in three ways: 1. the Court has moved from a narrower focus on what reconciliation means for the Canadian government in its relationship with Indigenous communities to a broader circle of reconciliation that includes all Canadians; 2. the Court has identified at least two normative values to guide the interpretation of reconciliation: honour and fair treatment; and   36 3. the Court has shifted the focus of reconciliation from backward-looking to forward-looking. I then consider the duty to consult, which the Court has identified as a process that flows out of the purpose of reconciliation.  I examine the duty to consult case law to analyze whether the Court’s jurisprudence in that area promotes the grand purpose of reconciliation at the heart of section 35.  Specifically, I examine Rio Tinto Alcan v Carrier Sekani Tribal Council72 and Beckman v Little Salmon/Carmacks First Nation73 and conclude that the Court’s current approach to the duty to consult is limited in failing to consider historical grievances and the quality and character of the relationship between the government and Indigenous communities. In Chapter 3, I argue that four principles – respect, recognition, reciprocity and reconciliation – may provide a useful framework to guide a new relationship-based approach to the duty to consult and accommodate.  I assert that principles are useful in that they are flexible, adaptable and their interpretations can change over time to fit emerging circumstances.  I then examine historical precedents for the use of principles, including treaties and wampum belts and other areas of law where the Supreme Court of Canada has embraced principles to guide the development of law.  I contrast the use of principles to guide the development of the duty to consult jurisprudence with the court's current reliance on administrative law principles as too limited for several reasons; the administrative law principles that the Court uses:   were not developed to respond to the special constitutional status that Indigenous people have within Canada;                                                    72 [2010] 2 SCR 650 [Rio Tinto]. 73 [2010] SCJ no 53 [Little Salmon].   37  do not support the fostering or improvement of relationships between Indigenous and non-Indigenous peoples; and  do not acknowledge or build upon the sui generis nature of Aboriginal rights. I suggest therefore that, rather than transplanting a developed procedure and area of law that did not contemplate Aboriginal claims in its design, a more appropriate approach identifies principles that (1) draw on both common law and Indigenous legal traditions and (2) are developed specifically to guide the duty to consult in the context of Aboriginal claims. I then introduce the four principles and outline and how I used the Medicine Wheel approach to identify the four principles of respect, recognition, reciprocity and reconciliation for the framework. In Chapter 4, I outline the principle of respect.  Specifically, I focus on respect between individuals and respect between cultural groups.  I discuss the effect of the historically disrespectful treatment of Indigenous peoples on the individual self-respect of Indigenous community members.  I argue that respect involves the valuing of something or someone and the perception that that something or someone is worthy of particular treatment based on that valuing.  I suggest that three ways to implement the principle of respect in the intercultural relationship include making interdependence and relationships primary, rejecting colonial attitudes and stereotypes of Indigenous peoples, and creating political and legal space for the expression and flourishing of cultural difference. In Chapter 5, I outline the principle of recognition. Recognition has two aspects: acknowledgment and affirmation.  ‘Recognition as acknowledgment’ requires a close examination of the history of colonialism and its effect on Indigenous individuals and communities within Canada.  Acknowledgment requires creating spaces for Indigenous   38 and non-Indigenous peoples to come together so that Indigenous peoples can share their counter-narratives and express their stories of peoplehood.  In listening to Indigenous stories, non-Indigenous peoples might experience transformative change through a consideration of how each of us continues to benefit from colonial policies and laws to the detriment of Indigenous communities. I suggest that implementing this aspect of recognition involves restorying Canada’s history through Indigenous storytelling, creating conditions for meaningful listening, and making a commitment to remember and change. The second aspect – ‘recognition as affirmation’ – involves formally entrenching in law the pre-existing, inherent rights of Indigenous communities.  This sense of recognition includes the affirmation of Indigenous sovereignty and jurisdictional capacity.  Affirmation involves rejecting the assumption of settler entitlement to Indigenous lands, being open to all issues during Indigenous/non-Indigenous political negotiations, and creating a sphere of recognition for Indigenous nations to revitalize appropriate forms of governance and legal systems. In Chapter 6, I outline the principle of reciprocity. Building on the writing of Indigenous and non-Indigenous theorists in various disciplines, including democratic moral theory, feminist theory, intercultural dispute resolution and collaborative therapy, I advocate a substantive conception of reciprocity that involves dialogue, humility, embodied engagement and emotional connection. This conception of reciprocity includes a reconceptualization of human relationships within a web of interdependence that includes all life forms, animate and inanimate, as well as past, present and future generations. Embracing the application of reciprocity in the context   39 of Indigenous/non-Indigenous relationships creates opportunities for meaningful engagement in dialogue, which provides the potential for mutual understanding across cultures. In Chapter 7, I outline the principle of reconciliation as developed in academic theory. I revisit my discussion of the Supreme Court of Canada’s interpretation of reconciliation in Chapter 2 and I argue that the Court’s interpretation constitutes a limiting vision of reconciliation.  This is so since although it does require the government to consult, accommodate and negotiate with Indigenous peoples, the Court’s interpretation of reconciliation includes justifying the infringement and limitation of Aboriginal rights. A new and substantive interpretation, I assert, conceptualizes reconciliation as a process aimed at fundamentally rebuilding a damaged relationship.  Reconciliation therefore includes reparations for historical wrongs along with three key components: truth-telling, taking responsibility, and taking action. Practical ways to begin rebuilding Indigenous/non-Indigenous relationships involves rebuilding trust between the parties, linking the past and present to envision the future, developing a shared vision of an interdependent future, creating flexible processes to support the relationship, and implementing concrete actions to move towards that shared vision. In Chapter 8, I apply the principles-based framework to the duty to consult.  First, I discuss how the attitudinal shifts and concrete measures necessary to implement the framework might inform the process of designing effective consultations processes between Indigenous peoples and Canadian governments.  Specifically, I consider how judges within the Canadian legal system might develop the duty to consult   40 jurisprudence using a relationship-based approach framed by the principles.  I then consider how the Canadian government might engage with Indigenous communities using this approach with a view to affecting a more appropriate resolution of disputes outside the court process.  In Chapter 9, I provide a summary of the principles-based approach and my concluding thoughts.   41 The Yellow Valley First Nation is a community inhabiting northern Ontario that has lived in the Valley for as long as anyone can remember.  The First Nation has 453 registered members under the Indian Act.  The community’s oral tradition confirms that the current members are descendants from ancestors with specific stewardship responsibilities to care for those lands. Yellow Valley First Nation is located at the fork of two rivers, which supply the community members with fish.  The community has traditionally relied on animals native to the Valley and continues to hunt and trap in the area.  Hunting and trapping techniques are passed down from parent to child and many laws of the community are instilled in the children through teachings on the land.  The fish and animals in the area have provided for the sustenance needs of the community since time immemorial.  The First Nation has survived many disruptions since the Europeans settled in North America.  These disruptions include the forcible removal of children to residential schools, the imposition of foreign membership provisions which displaced traditional ways of determining who are members of the community, and significant pollution to upstream waters from nearby industry that have damaged the fish stocks.  With respect to nearby industry, a smelting plant was set up in the mid-1990s and over the years, the First Nation has complained to the government and other organizations about the extreme pollution in the river and deformities in fish caught from the river.   The community faces some difficult social problems due to this legacy and due to the rapid change from an active, seasonal lifestyle to sedentary living within the boundaries of the community.  There are high amounts of diabetes and related   42 disabilities among community members, high rates of unemployment due to lack of opportunities in the area and the school within the community burned down in 1985 and has yet to be rebuilt.  There are substance abuse issues and recently the leadership has become aware of increasing use of prescription medications primarily brought into the community by members returning from the big cities. The community has a strong sense of identity and strong leadership working tirelessly to improve the lives of community members.  The leadership has created a ten-year economic development plan, which includes funding for community members to engage in skill development and capacity building to support innovative, community-driven business ideas.  In addition, the leadership has prepared a consultation protocol, which indicates that it is open to development proposals in which it can provide significant input and from which the community can benefit. The Yellow Valley First Nation is situated in the boreal forest, close to densely treed areas, which support moose and caribou populations as well as smaller animals.  The First Nation’s reserve lands encompass approximately 2% of the communities’ traditional territories.  The First Nation is party to a treaty in which its proprietary interest in its larger traditional territory was surrendered for an amount of $12 per person (although this interpretation is subject to controversy) with a residual payment of $5 per person per year thereafter.  Hunting, fishing and trapping rights were preserved.  In recent years, more non-Indigenous people have started to purchase land in the area to keep as summer cottages and community members have noticed a reduction in the amount of wildlife they are able to hunt and   43 trap. In addition, there is more and more interest in mining and cutting down trees in the area by forestry companies.   44 Chapter 2: The Divergence Between the Duty to Consult and Accommodate and the Reconciliation Purpose of Section 35 Reconciliation must be proactive in seeking to create an encounter where people can focus on their relationship and share their perceptions, feelings, and experiences with one another, with the goal of creating new perceptions and a new shared experience.1 Section 35 of the Constitution Act, 1982 enshrines constitutional protection of Aboriginal and treaty rights for Aboriginal peoples within Canada.2 The Supreme Court of Canada in R v Sparrow3 held that section 35 should be interpreted in relation to the purposes for which it was enshrined (what the Court calls “a purposive analysis”).4 The Court has identified reconciliation between Aboriginal and non-Aboriginal Canadians as the “grand purpose” of section 35.5  In its reconciliation jurisprudence, the Court has linked reconciliation explicitly to the normative values of honour and justice.  It links                                                    1 John Paul Lederach, Building Peace: Sustainable Reconciliation in Divided Societies (Washington, DC: United States Institute of Peace Press, 1997) [Lederach, Building Peace] at 30. 2 Constitution Acts, 1867 to 1982, Schedule B, Department of Justice (Ottawa: Canada Communications Group, 1989) [Constitution or Constitution Acts] at sec 35(1). Section 35(1) provides that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”  For the purposes of this discussion of reconciliation I focus on the Canadian Aboriginal law jurisprudence dealing with reconciliation.  Although I engage with some theory related to reconciliation in this Chapter, to avoid repetition, I leave my detailed discussion of theories dealing with reconciliation to Chapter 7, when I discuss the fourth principle of reconciliation. 3 R v Sparrow, [1990] 1 SCR 1075 [Sparrow]. 4 Ibid at para 56. 5 Beckman v Little Salmon/Carmacks First Nation, [2010] SCJ no 53 [Little Salmon] at para 10.  It is worth noting that some Indigenous scholars have criticized the concept of reconciliation as enunciated by the Court as arbitrary and unsupported by precedent: see D'Arcy Vermette, “Dizzying Dialogue: Canadian Courts and the Continuing Justification of the Dispossession of Aboriginal Peoples” (2011) 29 WYAJ 55 [Vermette, “Dizzying Dialogue"] at sec I; see also Russel Lawrence Barsh & James (Sákéj) Youngblood Henderson, “The Supreme Court’s Van der Peet Trilogy: Naive Imperialism and Ropes of Sand” (1997) 42 McGill LJ 993 at sec B.  Although these arguments are persuasive, the focus of my analysis is on the case law as it has developed which includes the concept of reconciliation.  As such, rather than critiquing the concept of reconciliation itself, I am arguing for an interpretation of reconciliation that rebuilds relationships between Indigenous and non-Indigenous communities within Canada through the development of processes and jurisprudence related to the duty to consult and accommodate.  This approach is in keeping with my attempt to create dialogue between the Canadian legal system and Indigenous legal traditions rather than focusing exclusively on critiquing the legitimacy of the Canadian legal system itself in adjudicating Indigenous claims.  I leave that important work for another paper.   45 reconciliation with honour by articulating that the process of reconciliation flows out of the requirement that the Crown deal honourably with Aboriginal claims.6  It links reconciliation with justice by considering the context of settlement and the historical grievances of Indigenous claimants in its decision-making. The Court also elaborated procedural duties arising from the purpose of reconciliation.  Specifically, the Court identified the duty to consult and accommodate as a duty falling on the Canadian government when its decisions have the potential to impact Aboriginal or treaty rights.7  As a constitutional duty grounded in section 35, the duty to consult and accommodate should support and promote the enunciated purposes of that section.  I argue that the Court’s current conceptualization of the duty to consult and accommodate, which set out the government’s minimum legal duties, provides a useful starting point, but without a fundamental shift in focus that gives primacy to the quality of the relationship between Indigenous and non-Indigenous peoples, the purpose of reconciliation underlying section 35 will remain unfulfilled. I first consider the Supreme Court of Canada’s conception of reconciliation and how this has evolved in section 35 jurisprudence. My analysis reveals that the Court has articulated reconciliation in various ways and recent case law points to a broadening interpretation of reconciliation that (a) encompasses a larger circle of participants; (b) links the purpose of reconciliation to normative values such as honour and justice; and (c) is more forward-looking and prospective. Second, I examine the Supreme Court of Canada’s jurisprudence relating specifically to the duty to consult                                                    6 Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 [Haida Nation] at para 32. 7 Ibid at para 27; Taku River Tlingit First Nation v British Columbia (Project Assessment Director), [2004] 3 SCR 550 [Taku River] at para 21.   46 and accommodate Indigenous interests where government decisions may impact proven and claimed section 35 rights. I then analyze two Supreme Court of Canada cases – Rio Tinto and Little Salmon – to illustrate the limitations of the current approach to the duty to consult and accommodate in fulfilling the reconciliation purpose of section 35. 2.1 Reconciliation as the Fundamental Purpose of Section 35 The Supreme Court of Canada has held that section 35 should be interpreted in light of the purpose underlying its enactment – a purpose it has identified as reconciliation.  The Court first considered the purpose of reconciliation in relation to Crown decisions that infringed constitutionally protected Aboriginal rights.  In Sparrow, which dealt with a claim for an Aboriginal right to fish for food, the Court held that “federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights.”8 Here the Court considers the power under section 91(24) of the Constitution Act, 1867 that gives jurisdiction over “Indians and Lands Reserved for Indians” to the federal Parliament.9 In creating the link between the purpose of reconciliation and justifiable limitations on Aboriginal and treaty rights, the Court recognized that where the federal Parliament enacted legislation that interferes with Aboriginal and treaty rights, the government bears the onus of justifying the infringement of Aboriginal rights; the                                                    8 Sparrow, supra note 3 at para 62. 9 Recently Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot'in Nation] at paras 128-52, the Supreme Court of Canada dealt with the division of powers with re