Imperious Temptations: Democratic Legitimacy and Indigenous Consent in Canada

Abstract

AbstractCanadian courts and governments increasingly invoke principles of mutual consent and nation-to-nation negotiation as central to the goal of addressing colonial injustices in a democratic society. However, Canada continues to interpret its obligations according to the Crown's fiduciary obligation to merely consult and accommodate Aboriginal peoples on infringement of their rights. In this article, I argue that there are conceptual resources available within existing Canadian law and politics for reconstructing a democratic consensual resolution to the problem of Indigenous exclusion and dispossession. I demonstrate that meeting the basic threshold of mutual consent would first require Canadian institutions to abjure the imperious temptation to impose parochial standards of free, prior and informed consent. Second, the Crown would refuse to ensnare Indigenous communities in unconscionable bargains, agreements that they would not otherwise view as reasonable, fair or equitable. And finally, Canada would accept rights of jurisdiction over land rooted in vital relations of health and well-being, as well as a corollary right of refusal or veto over decisions deemed by affected parties to be unwanted.