Aboriginal Rights: Creating Disincentives to Negotiate: Mitchell v. M.N.R.'S Potential Effect on Dispute Resolution

23 Pages Posted: 6 Feb 2009

See all articles by Shin Imai

Shin Imai

York University - Osgoode Hall Law School

Date Written: February 6, 2003

Abstract

The Supreme Court of Canada has often encouraged the Crown and Aboriginal parties to find negotiated solutions to their disputes. The complex social, political, economic and legal interests which are embedded in many sectors of the Canadian population are not best resolved in the context of legal proceedings. Courts should, however, do more than lament the lack of negotiations - they should make decisions that create incentives for high quality, effective dispute resolution processes.

This article describes the framework for negotiation set out in R. v. Sparrow (on Aboriginal rights to fish), Delgamuukw v. British Columbia (on Aboriginal title to lands) and Marshall v. Canada (on treaty rights to fish). Those cases would provide incentives for the parties to negotiate. By contrast, in the case of Mitchell v. M.N.R. (exemption from duty on border crossing), the two judgments of the Supreme Court turn on the interpretation of history and the incompatibility with Canadian sovereignty. While it is not inappropriate to take those factors into account, the Court sets those up as threshold issues that need to be resolved before the Court would consider how to balance Aboriginal rights with Crown infringements. Unfortunately, the approach used in Mitchell will provide disincentives to negotiate workable accommodations for contemporary problems.

Keywords: Aboriginal, dispute resolution, indigenous, consultation,courts

JEL Classification: K39, K41

Suggested Citation

Imai, Shin, Aboriginal Rights: Creating Disincentives to Negotiate: Mitchell v. M.N.R.'S Potential Effect on Dispute Resolution (February 6, 2003). Windsor Yearbook of Access to Justice, Vol. 22, 2003. Available at SSRN: https://ssrn.com/abstract=1339002

Shin Imai (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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