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

• Published in: Arctic Review on Law and Politics
• Main Author: David Wright
• Format: Article in Journal/Newspaper
• Language: English; Norwegian
• Published: Cappelen Damm Akademisk NOASP 2020
• Subjects: dispute resolution; conflict resolution; adr; modern treaties; indigenous law; land claim agreements; Law; K; Canada; Arctic; Arctic review on law and politics
• Online Access: https://doi.org/10.23865/arctic.v11.2519; https://doaj.org/article/ad0b8cbbd721474da42bcdfdbfb3544e

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 dimension of modern treaty implementation has received minimal scholarly attention, despite calls for such research. Drawing on specific examples, this article sets a foundation for further research by examining the significant 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 flexible “staged approach”. The analysis suggests that the latter may provide a stronger basis for joint problem-solving and integrative bargaining, notwithstanding open questions 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.