Dispute Resolution in Modern Treaties: Evolutions, Observations and Next Steps

• Author: David Wright
• Position: Professor, Natural Resources, Energy & Environmental Law, Faculty of Law
• Pages: 316-345

© 2020 David V. Wright. This is an Open Access article distributed under the terms of the Creative Commons Attribu-

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Citation: David V. Wright. “Dispute Resolution in Modern Treaties: Evolutions, Observations and Next Steps” Arctic Review on

Law and Politics, Vol. 11, 2020, pp. 280–309. http://dx.doi.org/10.23865/arctic.v11.2519

Arctic Review on Law and Politics

Vol. 11, 2020, pp. 280–309

280

Peer-reviewed article

*Correspondence to: David V. Wright, email: david.wright2@ucalgary.ca

Dispute Resolution in Modern Treaties:

Evolutions, Observations and Next Steps

David V. Wright

Natural Resources, Energy & Environmental Law, Faculty of Law, University of Calgary,

Canada

Abstract

In Canada, comprehensive land claims agreements – often called modern treaties – between the

government and Indigenous nations include provisions prescribing how disputes between treaty

parties are to be resolved. Experiences with these dispute resolution mechanisms vary across

treaty contexts and there is substantial variance in the terms of these treaties. To date, this dimen-

sion of modern treaty implementation has received minimal scholarly attention, despite calls for

such research. Drawing on specic examples, this article sets a foundation for further research by

examining the signicant variation across different treaties’ dispute resolution mechanisms and

commenting on key differences, similarities and other notable features. A key focus of the analysis

is on the observable evolution of these mechanisms from a relatively narrow arbitration board

model to a more exible “staged approach”. The analysis suggests that the latter may provide a

stronger basis for joint problem-solving and integrative bargaining, notwithstanding open ques-

tions about the extent to which such approaches are warranted in fraught Crown-Indigenous

relationships in Canada. The article also discusses the conspicuous absence of dispute resolution

mechanisms that accommodate, let alone require, approaches rooted in the traditional or cultural

practices of Indigenous treaty parties. Observations throughout are contextualized in relation to

a growing body of jurisprudence and a broader context of fast-changing federal law and policy in

Canada, which may set the stage for amendments to the dispute resolution provisions of modern

treaties.

Keywords: dispute resolution, conict resolution, ADR, modern treaties, Indigenous law,

land claim agreements

Responsible Editor: Nigel Bankes, Faculty of Law, University of Calgary, Canada

Received: July 2020; Accepted: September 2020; Published: December 2020

Dispute Resolution in Modern Treaties

281

1 Introduction

Canada continues to enter into treaties with Indigenous peoples. After a hiatus

lasting several decades, the federal government re-engaged in treaty making in

the wake of the 1973 Calder decision.1 Today, there are 26 “comprehensive land

claims agreements”, or “modern treaties”2 as they are often called,3 that are being

implemented across the country, with approximately 100 more under negotia-

tion.4 Most of these modern treaties are in Canada’s three northern territories,

although some exist in parts of Quebec, Labrador, and smaller areas of British

Columbia.5

Unlike historical treaties in Canada, which were “typically expressed in lofty

terms of high generality and were often ambiguous”,6 modern treaties are lengthy,

sophisticated legal agreements that include chapters on heritage resources, land

management, wildlife management, development assessment, land use planning,

economic development, resource royalties, parks and protected areas, expropria-

tion, and more.7 Modern treaties also include provisions for dealing with dispute

resolution.8 While the treaties themselves resolve, or at least represent attempts to

resolve, longstanding disputes between the Crown and Indigenous peoples about

rights of land ownership and associated benets, as well as governmental authority

and jurisdiction, these agreements anticipate further disputes during the treaty

implementation process. Typically, the dispute resolution provisions take the form

of a stand-alone chapter setting out specic processes, institutions and jurisdiction

for managing disputes.9

To date, the dispute resolution aspect of modern treaty implementation has

received minimal scholarly attention, despite calls for such research,10 ndings

from the Ofce of the Auditor General regarding treaty implementation short-

comings,11 and litigation by Indigenous treaty parties.12 This article represents a

modest rst step in addressing this gap in the literature. It is primarily descrip-

tive and explanatory in nature, setting a foundation for further research. Spe-

cically, this article looks at the dispute resolution mechanisms of different

treaties, commenting on key differences, similarities and other notable features.

A core focus of the analysis is on the observable evolution in these provisions

from a relatively narrow arbitration board model to a more exible “staged

approach”. The analysis presented in this article recognizes that dispute reso-

lution between different cultures is inherently complex,13 and that such com-

plexity is intensied by Crown-Indigenous relations in Canada that have been

shaped by the extremely negative impacts of colonization and persistent power

imbalances.14

The article proceeds as follows. Part II of this article sets out the legal and pol-

icy context within which modern treaties exist, including characterizations from