“Power imbalances, particularly between indigenous peoples and a state, will always influence their relationships. Trying to eliminate the effects of power, it might be said, is as hopeless as the efforts of King Cnut to halt the tide.” – Michael Coyle
Professor Michael Coyle, aboriginal rights specialist and mediator from The University of Western Ontario asks if we really can get over and beyond our past.
His article: “TRANSCENDING COLONIALISM? POWER AND THE RESOLUTION OF INDIGENOUS TREATY CLAIMS IN CANADA AND NEW ZEALAND”, appearing in the latest NZ University Law Review (2011) 24 NZULR 596) examines the shared history of Canada and New Zealand in respect to resolving indigenous treaty claims.
New Zealand and Canada have both created extra-judicial processes for addressing treaty disputes between the Crown and indigenous claimants. To the extent that the outcomes of those processes rely on direct bargaining between the parties, they offer the advantages of flexibility and opportunities for rebuilding damaged relationships. Reliance on unassisted negotiation, however, raises concerns that treaty settlements will be unduly influenced by imbalances in bargaining power rather than on the merits of treaty claims judged by neutral criteria. Drawing on negotiation theory and comparing the landscapes of legal alternatives to negotiated resolution in Canada and New Zealand, this article assesses the extent to which each country’s treaty dispute process addresses the expected effects of power imbalances between the Crown and indigenous claimants. The author suggests that New Zealand and Canada have each failed, in differing and significant ways, to counterbalance the risk that power imbalances will undermine the settlement process. The article concludes by sketching out practical reforms that could be adopted in each country to address these concerns.
The full article offers a 3 part analysis:
- A brief review of the origins and nature of treaty disputes in New Zealand and Canada;
- An examination of the relative bargaining power of the Crown and indigenous claimants in treaty disputes, and of the expected effects of power imbalances on negotiation outcomes; and
- An assessment of the extent to which each country’s current treaty dispute resolution processes addresses the effects of power imbalances, to ensure that outcomes reflect the merits of treaty claims and promote reconciliation between the parties.
About The NZ University Law Review
The new NZULR online database contains searchable text of all articles from 1997 onwards. Pdf versions of all articles as they appeared in print are also available for download and printing.
NZULR is published in June and December each year and enjoys a strong international reputation. Issues contain refereed articles and book reviews. Articles on a wide variety of subjects are published although preference is given to articles on New Zealand law, general principles of common law and international law.
To find out more click the link to go the Thomson Reuters Catalogue
About Professor Michael Coyle
Professor Coyle ( The University of Western Ontario -LLB (UWO) 1982, LLM (Osgoode) 1998) joined the Faculty of Law in 2000. His primary research interests relate to aboriginal rights and dispute resolution theory.
A grant from University of Western Ontario enabled him to visit New Zealand to research this article. He was assisted by the Faculty of Law at the Victoria University and Jacinta Ruru of the University of Otago.