Protest for New Protocols: What the Debate on the Duty to Consult Says about the State of Indigenous-settler Relationships

Abstract

Indigenous-settler relationships in Canada are grounded in constitutional obligations. When actors dispute the terms of Indigenous-settler relationships, these actors are seeking to change the nature and scope of existing constitutional obligations. The Crown’s duty to consult Indigenous peoples is a constitutional obligation that is disputed between Indigenous and non-Indigenous peoples. The practices that guide actors’ behaviours when contesting constitutional obligations, such as the duty to consult, influence the development of Indigenous-settler relations. Two main groups of actors portray different behaviours and practices when disputing constitutional obligations. Actors within institutions and actors engaging in collective mobilization interact with each other to change the character of Indigenous-settler relationships. A case study analysis portrays the dialogical interactions between institutions and social movements. The results reveal that actors confront their differences in a manner that prevents Indigenous-settler relationships from improving. For instance, institutions do not consider Indigenous interpretations of proper consultation before articulating consultation protocols. Consequently, only crisis situations, which are often provoked by Indigenous social movements, signal to institutions that different interpretations of consultation exist. However, using crises to initiate engagement with constitutional disputes results in parties treating other perspectives with distrust. Hostility between parties is communicated within dialogical processes, preventing Indigenous-settler relationships from respecting differences and reconciling interests. A new advisory institution that respects and articulates different interests may facilitate reconciliation between Indigenous and non-Indigenous perspectives. Implementing this reform would transform the contestation of constitutional obligations into a regular practice of engaging with different perspectives to improve Indigenous-settler relationships.