Reconceiving the duty to consult and accommodate Aboriginal peoples : a relational approach
University of British Columbia
Doctor of Philosophy - PhD
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. 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.
Attribution-NonCommercial-NoDerivs 2.5 Canada
Law, Peter A. Allard School of