Gordon Christie

Canada is on the cusp of an important phase of its nation-building project: the transformation of Crown-Indigenous relationships to give effect to Indigenous peoples’ right to self-determination, and to include First Nations in the Canadian federation as equal partners and a third order of government. However, after nearly three decades and billions of dollars committed to negotiations, few First Nations exercise genuine self-government, and few arrangements reflect First Nations’ aspirations for self-determination. Meta-analysis and gap analysis demonstrate gaps in our understandings and expectations of self-determination and self-government, and between the promises and performance of Canadian governments. Canada’s legal framework is insufficient for the relationship we seek, which requires re-negotiated norms of recognition to acknowledge the continuity of distinct Indigenous nations as equal partners, and a third order of government with their own legal orders. First Nations seek terms of association that are more just, recognize their traditional territories and jurisdiction, and ensure their fair share of the benefits from their traditional territories and membership in the federation. A novel conceptual framework enables a comparative analysis of Western and First Nations’ conceptions of legitimacy, demonstrating important cultural differences in the way we understand legitimacy of governments and legal systems. These differences create difficulties in recognizing the legitimacy of the “other”, and undermine our own legitimacy in the eyes of the other. Legitimacy is important because it leads to compliance with the law, and deference to the rule of law, contributing to stability of political institutions and regimes. Legitimacy influences the extent to which a government is considered worthy to be recognized by others, and the willingness of others to work collaboratively on shared initiatives. Legitimacy is important to Canada and First Nations: it is what we require in order to achieve a constructive working relationship. Absence of legitimacy creates obstacles to effective negotiation of new norms of recognition and terms of association which are essential to achievement of a more fair and just, post-colonial Canada. Recommendations include measures to improve legitimacy, and identify new terms of association consistent with inclusion of First Nations as equal partners in the Canadian federation.

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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.

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This thesis examines the role of law in the establishment of colonial rule in Nigeria in the 19th and early 20th century and argues that the legal imperialism of this period continues to characterize the post- independence modern legal system creating a crisis of legitimacy, relevance and justice which can only be resolved through a process of democratization of law. Focusing on a case study of the development of land law in Southern Nigeria, from 1861 to 2011, and its impact on women’s land rights, the thesis explores the continuities and discontinuities in land use policy, law and practice and options for democratic reform. It demonstrates that there has been a growing centralization and concentration of power over land in this period, which tends to result in widespread abuse and the dispossession of large groups of people of access to land and livelihoods. It shows how women have been disproportionately affected by these developments and how their dispossession has been facilitated by a colonial legal system – through its discourse, legislation and processes of conflict resolution. Colonial conceptions of law and of gender have intersected to produce a dominant discourse and practices relating to “customary” and “modern” law and rights that goes largely unchallenged today. This thesis analyses these intersections adopting an historical and contextual feminist approach, which I have termed an African feminist jurisprudence, using the term jurisprudence here to mean the philosophy of law. It calls for a shift of emphasis from the customary/modern law dichotomy to focus on substantive issues of equality, equity and justice in law reform as well as the active participation of citizens in governance.

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Indigenous peoples in Canada demand self-determination over criminal justice for a number of reasons. Indigenous approaches to justice that resemble restorative justice are thought to be more effective in dealing with Indigenous criminality, to promote the healing of offenders and victims, and to promote relationship reparation in Indigenous communities. Indigenous punitive sanctions such as corporal punishment may also provide a briefer deterrent alternative that avoids the hardening conditions of prisons. Indigenous peoples have little room to pursue these visions of justice. Canadian laws and policies accords only minor accommodations of Indigenous approaches to justice. This is sustained by a political culture that often demands harsher sentences to assure deterrence and public safety. Judicial treatment of the Aboriginal rights provision of the Constitution Act, 1982, provides limited scope for Indigenous peoples to litigate or negotiate for rights to substantive criminal jurisdiction. One approach to overcoming this is to litigate for an Indigenous right of internal autonomy. It gives Indigenous peoples a better position to demand greater accommodation for their justice practices. Another approach is for Indigenous communities to explore avenues for their own economic development, so that they can their own justice systems, free of external influence, to meet their needs. If Indigenous self-determination becomes a reality, there is another issue that is imperative to address. What happens when Indigenous individuals assert their legal rights under the Canadian Charter of Rights and Freedoms against their own justice systems? This engages a tension between Indigenous justice traditions that emphasize collective well-being and individual rights. There is a method for resolving this tension. The Royal Commission on Aboriginal Peoples explored the concept of culturally sensitive interpretation of legal rights, re-interpreting legal rights under the Charter to better reflect Indigenous justice traditions while still leaving in place meaningful safeguards against the abuse of collective power. This dissertation puts culturally sensitive interpretation into action by exploring specific proposals with reference to specific rights in the Charter.

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