Reconciliation 2.0: Resolving Contradictions in the Production of Settler Colonial and Capitalist Space in Canada

Abstract

AbstractThis paper reviews a pair of Canadian legal decisions on the duty to consult to explore the court’s role in reconciling tensions between settler colonial and capitalist space. Following a period of political and economic instability that made energy development vulnerable to Indigenous legal challenge, the court legalised the delegation of Indigenous consultations to corporate and regulatory actors, defined consultation in practical terms, and intensified the remedy for inadequate consultation. The court not only substituted nation‐to‐nation negotiations with corporate engagements, but submitted energy corporations to the work of legitimising and effectuating Canadian sovereignty. The decisions call for an expanded view of “reconciliation” as a judicial practice of Indigenous dispossession, accomplished not only by reconciling Indigenous authority with Canadian sovereignty, but by reconciling capitalist energy development with the legalities of Canada’s modern settler colonial order. The decisions bring into greater focus the state’s increasing reliance on corporations to reproduce Canadian sovereignty.