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A critical engagement with Nancy Fraser’s theory of bivalent justice : implications for the BC Treaty Commission process Kajlich, Helena

Abstract

This thesis explores Nancy Fraser's reconceptualization of the relationship between claims for recognition and redistribution through an analysis of her theory of bivalent justice. Her framework is applied to the B C Treaty Commission process to assess its usefulness. This thesis also critically engages with two of the provincial Liberal government's principles for negotiating treaties with First Nations: first, the provincial government refuses to negotiate compensation for the wrongful infringements of First Nations' rights and second, self-government is recognised as a form of local government with delegated powers. In applying Fraser's theory of bivalent justice, which includes the core normative principle of participation parity and a model of status subordination, it is evident that the provincial government's mandate is inconsistent with the type of justice Fraser envisages. Rather, not only should compensation be part of the treaty process, but also, self-government should be negotiated as an inherent right, not as a right delegated from the federal and provincial government. There are, however, two other important challenges to the provincial government's mandate: first, from those First Nations who assert that the inherent right to self-government exists beyond the framework of the Canadian Constitution. The second challenge arises from an analysis of the trends of privatization. Such a critique exposes how the provincial government appropriates the objective of self-government for First Nations and represents it as being "municipal-like" in nature. Finally, I conclude that these discursive trends of privatization may expose an important limitation to Fraser's theory. That is, these discursive practices inhibit the implementation of transformative remedies that are crucial for working towards the type of justice Fraser proposes.

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