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Negotiating Indigenous Peoples’ Exit From Colonialism: The Case for an Integrative Approach

Published online by Cambridge University Press:  20 July 2015

Michael Coyle
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Extract

New institutions of indigenous governance will be the product of negotiations, negotiations that will take place against a background of colonial structures and relationships. Having examined the challenges of structuring a negotiation process that takes due account of pre-existing cultural and power differences between the parties, the author analyzes the significance of their choice of negotiation strategy on the negotiation process and outcome. In particular, this paper reflects on the promise and limitations of the parties’ adopting interest-based, or “integrative”, negotiation strategies and the potential for fruitful entanglements between those strategies and indigenous diplomatic traditions.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 27 , Issue 1 , January 2014 , pp. 283 - 303
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Copyright © Canadian Journal of Law and Jurisprudence 2014 

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References

The writer gratefully acknowledges the assistance of the Social Sciences and Humanities Research Council of Canada, which provided funding for this research. Thanks are also owed to Jonathan Marin, UWO JD 2010 and current UWO JD student, Daniel Zulauf, for their very capable research assistance.

1. See “The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government”, online: Aboriginal Affairs and Northern Development Canada http://www.aadnc-aandc.gc.ca (“The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982“) [“AANDC Policy”]. On the distinction between “self-government” and “self-determination” see Christie, Gordon, “Aboriginal Nationhood and the Inherent Right to Self-Government” (2007) Research Paper for the National Centre for First Nations Governance”, online: http://fngovernance.org/publications/research/aboriginal_nationhood_and_the_inherent_right_to_self_government Google Scholar.

2. Ibid.

3. See Indian Act, RSC 1985, c I-5 ss 81-85.1. Through these sections of the Indian Act, First Nations band councils are granted bylaw-making powers including “the destruction and control of noxious weeds” (s 81(j)), “the regulation of bee-keeping and poultry raising” (s 81(k)), and “the regulation of the conduct and activities of hawkers, peddlers or others who enter the reserve to buy, sell or otherwise deal in wares or merchandise” (s 81(m)). Any such bylaws are subject to the approval of the Minister of Aboriginal Affairs and North Development (ss 82 and 83(1)).

4. See, e.g., Canada, House of Commons Special Committee on Indian Self-Government, “Indian Self-Government in Canada: Report of the Special Committee” (Ottawa: Queens Printer for Canada, 1983)Google Scholar; Macklem, Patrick, “Normative Dimensions of an Aboriginal Right to Self-Government” (1995) 21 Queen’s LJ 173 Google Scholar; Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, vol. 2 (Ottawa: Minister of Supply and Services Canada, 1996) [RCAP] at 163-419Google Scholar; Macklem, Patrick, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) at 281-85CrossRefGoogle Scholar; Ladner, Kiera, “Indigenous Governance: Questioning the Status and the Possibilities for Reconciliation with Canada’s Commitment to Aboriginal and Treaty Rights” (15 September 2006), online: National Centre for First Nations Governance http://fngovernance.org Google Scholar; Wiessner, Siegfried, “Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous People” (2008) 41:4 Vand J Transnat’l L 1141 Google Scholar; Borrows, John, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010).Google Scholar

5. If, for example, First Nations act unilaterally to assert, develop and implement new vehicles of governance, there will be a relatively high potential for institutions to emerge that reflect their own social norms and aspirations, with relatively less protection for those institutions in the face of legal challenges under Euro-Canadian law and relatively less opportunity for the development of dramatically new fiscal and economic capacities to support those new institutions. Proceeding through constitutional amendment, on the other hand, opens the way for robust forms of governance under Canadian law but may lead to a more uniform menu of governance structures.

6. Coyle, Michael, “Transcending Colonialism? Power and the Resolution of Indigenous Treaty Claims in Canada and New Zealand” (2011) 24:4 NZULR 596 Google Scholar [Coyle, “Transcending Colonialism”]; Coyle, Michael, “Les négoçiations sur la gouvernance autochtone au Canada: pouvoir, culture et imagination” (2009) 15:3 Télescope 14 Google Scholar [Coyle, “Les négoçiations”].

7. Coyle, Michael, “Establishing Indigenous Governance: The Challenge of Confronting Mainstream Cultural Norms” in Otis, Ghislain & Papillon, Martin, eds, Federalism and Aboriginal Governance (Quebec City: Presse de l’université Laval, 2013).Google Scholar

8. See, e.g., Ury, William, Fisher, Roger & Patton, Bruce, Getting to Yes: Negotiating Agreement Without Giving In, 2d ed (New York: Penguin Books, 1991)Google Scholar; Menkel-Meadow, Carrie, “Toward Another View of Legal Negotiation” (1984) 31 UCLA L Rev 754 Google Scholar [Menkel-Meadow, “Toward Another View”]; Lax, David A & Sebenius, James K, The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain, (New York: The Free Press, 1986)Google Scholar; Susskind, Lawrence & Cruikshank, Larry, Breaking the Impasse: Consensual Approaches to Resolving Public Disputes (New York: Basic Books, 1987)Google Scholar.

9. See Sander, Frank EA & Goldberg, Stephen B, “Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure” (1994) 10 10:1 Negotiation J 49 CrossRefGoogle Scholar (recommending that the choice of process used to address a particular dispute (the forum) be tailored to the nature of dispute and likely obstacles to settlement).

10. An obvious source of such normative disagreements is the presence of cultural differences between the parties, but there is also room for conflict over whether the dialogue should be guided by a forward-looking orientation aimed at meeting the parties’ fundamental interests in relation to governance or by a retrospective approach aimed at reconciling the rights claims of the parties. Normative disagreements have also arisen, and will continue to arise, on the question of whether governance negotiations should be focused on establishing more just, but fexible relationships for the future, or whether they should be aimed at achieving certainty through the establishment of fixed frameworks for dividing jurisdictions between federal and provincial governments and Aboriginal peoples.

11. See “Frequently Asked Questions—A Results-Based Approach to Treaty and Self-government Negotiations” (4 September 2012), online: Aboriginal Affairs and Northern Development Canada http://www.aadnc-aandc.gc.ca.

12. See Indian and North Affairs Canada, Evaluation of the Federal Government’s Implementation of Self-Government and Self-Government Agreements, (Ottawa: AANDC, 2011), online: Aboriginal Affairs and Northern Development Canada http://www.aadnc-aandc.gc.ca Google Scholar [AANDC Evaluation]. The evaluation cites longer than anticipated resolution times and higher than anticipated costs as two key issues in relation to the efficiency and economy of the self-governance negotiation process. See also “Negotiation Tables”, online: Aboriginal Affairs and Northern Development Canada http://www.aadnc-aandc.gc.ca for details. See also Aboriginal Affairs and North Development Canada, News Release, 2-3703, “Harper Government Responds to Calls for More Efficient Results-Based Approach to Treaty and Self-government Negotiations” (4 September 2012) online: AANDC http://www.aadnc-aandc.gc.ca (Currently, “[n]egotiations can take up to 30 years to conclude an agreement, and the average negotiating time is approximately 15 years”).

13. See BC Treaty Commission, Annual Report (Vancouver: BC Treaty Commission, 2012) at 1 Google Scholar for a reference to the Commission’s comment in 2011 that “if the three parties cannot harness the effort necessary to finalize treaties … then perhaps it’s time to consider shutting down the process.” 60 First Nations in British Columbia are participating in self-governance negotiations with Canada and the province under the BC treaty negotiation process. Of those First Nations, only two have thus far managed to implement a final agreement. See “Negotiation Update”, online: BC Treaty Commission http://www.bctreaty.net. For critiques of the British Columbia treaty negotiation process, see Tully, James, “Reconsidering the B.C. Treaty Process” in Speaking Truth to Power: A Treaty Forum (Ottawa: Law Commission of Canada, 2001)Google Scholar; Woolford, Andrew, Between Justice and Certainty: Treaty Making in British Columbia (Vancouver: UBC Press, 2005)Google Scholar [Woolford, “Between Justice”]; Alcantara, Christopher, “To Treaty or Not to Treaty? Aboriginal Peoples and Comprehensive Land Claims Negotiations in Canada” (2008) 38:2 Publius J Federalism 343 CrossRefGoogle Scholar.

14. A group that has in the past consisted almost entirely of non-indigenous scholars—an issue that will be explored in Part III. There is now a dynamic group of Canadian indigenous scholars (including John Borrows, Val Napoleon, Hadley Friedland and André Boisselle) who are beginning to investigate traditional indigenous approaches to legal ordering and to dispute resolution. However, this writer is unaware of any sustained analysis of negotiation theory written to date from an indigenous perspective.

15. Other terms applied to the same approach are “principled bargaining” (Ury, Fisher & Patton, supra note 8) and “problem-solving negotiation”(Menkel-Meadow, “Toward Another View”, supra note 8).

16. See, e.g., Lewicki, Roy J, Saunders, David M & Barry, Bruce, Negotiation, 5th ed (New York: McGraw-Hill Irwin, 2006) at 71 Google Scholar; Ury, Fisher & Patton, supra note 8 at 4-5.

17. See Menkel-Meadow, “Toward Another View”, supra note 8 at 799-806 and Lax & Sebenius, supra note 8 at 18-30.

18. For examples of the importance of framing and reframing in negotiation see Ury, William, Getting Past No (New York: Bantam Books, 1991) at 76-104Google Scholar; Felstiner, William LF, Abel, Richard L & Sarat, Austin, “The Emergence and Transformation of Disputes: Naming, Blaming and Claiming…” (1981) 15:3/4 Law Soc Rev 631 at 634Google Scholar; Kahneman, Daniel, Thinking, Fast and Slow (Toronto: Doubleday Canada, 2011) at 363-74Google Scholar.

19. See Ury, Fisher & Patton, supra note 8 at 81-94; Menkel-Meadow, supra note 8 at 818-29; Lewicki, Saunders & Barry, supra note 16 at 75-89.

20. See, e.g., Ury, Fisher & Patton, supra note 8 at 107-28; Ury, supra note 18 at 6-9.

21. See, e.g., Menkel-Meadow, “Toward Another View”, supra note 8 at 833-34; Lewicki, Saunders & Barry, supra note 16 at 98-100. For interest-based negotiation theory applied to the American-Iranian hostage crisis between December 1979 and January 1981, see Ury, Fisher & Patton, supra note 8 at 44-46. Several studies have also suggested that the use of integrative tactics, particularly information sharing, leads to higher levels of joint gains. See, e.g., Thompson, Leigh L, “Information Exchange in Negotiation” (1991) 27:2 J Exp Soc Psychol 161 Google Scholar (joint outcomes improved “significantly” when at least one party provided or sought information); Kemp, Katherine E & Smith, William P, “Information Exchange, Toughness, and Integrative Bargaining: The Roles of Explicit Cues and Perspective-Taking” (1994) 5:1 Int’l J Conf Mgmt 5 CrossRefGoogle Scholar (exchange of outcome information led to higher joint profits); Schneider, Andrea, “Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style” (2002) 7 Harv Neg L Rev 143 Google Scholar (lawyers ranked negotiators exhibiting traits associated with an integrative orientation as more effective negotiators than those exhibiting traits associated with an adversarial style). But see Paquet, Renaud, Gaétan, Isabelle & Bergeron, Jean-Guy, “Does Interest-Based Bargaining (IBB) Really Make a Difference in Collective Bargaining Outcomes?” (2000) 16:3 Negotiation J 281 CrossRefGoogle Scholar (in the context of labour collective bargaining, negotiations using integrative bargaining achieved more joint gains, but the unions in those cases also made more unilateral concessions and achieved fewer unilateral gains than in negotiations involving adversarial bargaining).

22. See, e.g., Dockstator, Mark, “Alternative Dispute Resolution Experiences in Canada” (Paper delivered at the Victoria Conference Centre, 1 May 1996), UVic Institute for Dispute Resolution, Making Peace and Sharing Power: A National Gathering on Aboriginal Peoples and Dispute Resolution (Victoria: University of Victoria Press, 1997) at 164-70Google Scholar; Blair, Peggy J, “Aboriginal Dispute Resolution: Conflicting Values in Co-Management Negotiations” in ADR and Aboriginal Rights: A Creative Solution for Complex Problems… Or Just Another Trend? (Toronto: Canadian Bar Association, 1998)Google Scholar; Kahane, David, “What is Culture? Generalizing about Aboriginal and Newcomer Perspectives” in Bell, Catherine & Kahane, David, eds, Intercultural Dispute Resolution in Aboriginal Contexts (Vancouver: UBC Press, 2004) at 33-42Google Scholar [Kahane, “What is Culture?”]; Avruch, Kevin, “Toward an Expanded Canon of Negotiation Theory: Identity, Ideological, and Values-Based Conflict and the Need for a New Heuristic” (2006) 89:3 Marq L Rev 567 Google Scholar [Avruch, “Expanded Canon”]; Victor, Wenona, Alternative Dispute Resolution (ADR) in Aboriginal Contexts: A Critical Review (Ottawa: Canadian Human Rights Commission, 2007).Google Scholar

23. A number of articles and studies have concluded that use of adversarial negotiation techniques tends to lead to higher levels of impasse than employing an integrative strategy. See, e.g., Post, Frederick R, “Adversarial Collective Bargaining: An Anachronism” (1991) 6:2 Mid-Am J Bus 55 at 58-59CrossRefGoogle Scholar; Chandler, Timothy D & Judge, Timothy A, “Management Chief Negotiators, Bargaining Strategies, and the Likelihood of Impasse in Public Sector Collective Bargaining” (1998) 28 Am Rev Public Adm 146 at 158CrossRefGoogle Scholar; Olekalns, Mara & Smith, Philip L, “Understanding Optimal Outcomes: The Role of Strategy Sequences in Competitive Negotiations” (2000) 26:4 Hum Commun Res 527 Google Scholar.

24. Menkel-Meadow, “Toward Another View”, supra note 8 at 838-39.

25. One obvious exception, as discussed below, is the negotiation of financial transfers to support new Aboriginal institutions, a subject matter that appears to be zero-sum.

26. Consistent with an integrative orientation. See supra note 21.

27. The language of the federal policy on the inherent right of Aboriginal self-government suggests that there are only two overarching federal objectives in self-governance negotiations: to ensure “good governance” and “accountability” within the existing “Canadian constitutional framework.” See “AANDC Policy”, supra note 1. Many Aboriginal leaders and scholars reject any dialogue premised on the incontestability of Canadian sovereignty and Western liberal values. See, e.g., Alfred, Taiaiake, Peace, Power, Righteousness: An Indigenous Manifesto (Don Mills: Oxford University Press, 1999) at 119-28Google Scholar; Turner, Dale, This is Not a Peace Pipe (Toronto: University of Toronto Press, 2006) at 57-70Google ScholarPubMed. See also RCAP, vol 1, supra note 4 at 248-63 and 678-97; Tully, supra note 13 at 9-12; Christie, Gordon, “Judicial Justification of Recent Developments in Aboriginal Law” (2002) 17 Can J Law Soc 41 at 65-67CrossRefGoogle Scholar. On the impact of negotiators’ perceptions and frames on negotiation outcomes, see the sources cited in infra note 34.

28. R v Sparrow, [1990] 1 SCR 1075 at para 49Google Scholar.

29. Quoted in Dickason, Olive Patricia, A Concise History of Canada’s First Nations (Don Mills, ON: Oxford University Press, 2006) at 159.Google Scholar See also the comment made in 1920 by Duncan Campbell Scott, Deputy Superintendent of the federal Department of Indian Affairs, quoted in Miller, JR, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada, 3d ed (Toronto: University of Toronto Press, 2000) at 281-82Google Scholar: “Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian Department.”

30. An armed confrontation occurred between the Iroquois and the RCMP in 1922 when the federal government determined to close the Six Nations traditional longhouse and seize its symbols of government. See Dickason, Olive Patricia, Canada’s First Nations: A History of Founding Peoples from Earliest Times, 2d ed (Don Mills, ON: Oxford University Press, 1997) at 332-33Google Scholar.

31. Several amendments to the original Indian Act, SC 1876, c 18 were aimed explicitly at sup Pressing traditional Aboriginal cultural practices. In 1884 a provision was passed by Parliament, which became Indian Act, SC 1886, c 43, s 114, that banned “[e]very Indian or person” from “engag[ing] in or assist[ing] in celebrating the Indian festival known as ‘Potlach’ or the Indian dance known as the ‘Tamanawas’” on penalty of two to six months imprisonment. An amendment, passed in 1914, barred western Indians from participating in “Aboriginal costume” in any “dance, show, exhibition, stampeded or pageant” without official permission. The “Aboriginal costume” requirement was dropped in 1933 so that simple participation became sufficient to attract the penalty, regardless of dress. During the time these provisions were in force they led to several arrests and imprisonments, including, in 1902, a 90-year-old nearly blind man being sentenced to two months’ imprisonment with hard labour for participating in a prohibited dance. See Woodward, Jack, Native Law (Toronto: Carswell, 2001) at 341-42Google Scholar and RCAP, supra note 4 at 291-93 for details.

32. See Canada, Indian and Northern Affairs, Statement of the Government of Canada on Indian Policy (Ottawa: Department of Indian and Northern Affairs, 1969).Google Scholar

33. For a discussion of Canada’s recent history of Aboriginal occupations, see Report of the Ipperwash Inquiry: Policy Analysis, vol 2 (Toronto: Queen’s Printer for Ontario, 2007) at 19 Google Scholar, which reported that more than 100 “Aboriginal critical incidents” were dealt with by the Ontario Provincial Police between 1995 and 2006.

34. See Lewicki, Saunders & Barry, supra note 16 at 16; Bazerman, Max H, Magliozzi, Thomas & Neale, Margaret A, “Integrative Bargaining in a Competitive Market” (1985) 35:3 Organ Behav Hum Dec 294 CrossRefGoogle Scholar; Neale, Margaret A & Bazerman, Max H, “The Effects of Framing and Negotiator Overconfidence on Bargaining Behaviors and Outcomes” (1985) 28:1 Acad Manag J 34 Google Scholar; Thompson, Leigh, “Negotiation Behavior and Outcomes: Empirical Evidence and Theoretical Issues” (1990) 108:3 Psychol Bull 515 CrossRefGoogle Scholar; Neale, Margaret A & Northcraft, GB, “Behavioral Negotiation Theory: A Framework for Conceptualizing Dyadic Bargaining” in Cummings, LL & Staw, BM, eds, Research in Organizational Behavior, vol 13 (Greenwich, CT: JAI Press, 1991)Google Scholar; Pinkley, RL, “Dimensions of Conflict Frame: Relation to Disputant Perceptions and Expectations” (1992) 3:2 Int’l J Conf Mgmt 95 CrossRefGoogle Scholar.

35. See Lewicki, Saunders & Barry, supra note 16 at 98.

36. Ury, Fisher & Patton, supra note 8 at 17-39.

37. See Mnookin, R, Peppet, S & Tulumello, A, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Cambridge: Belknap Press of Harvard University Press, 2000)Google Scholar; Menkel-Meadow, Carrie, “Why Hasn’t the World Gotten to Yes? An Appreciation and Some Reflections” (2006) 22:4 Negotiation J 485 at 488CrossRefGoogle Scholar [Menkel-Meadow, “Gotten to Yes”]; Sargent, Neil, Picard, Cheryl & Jull, Marnie, “Rethinking Conflict: Perspectives from the Insight Approach” (2011) 27:3 Negotiation J at 347-52CrossRefGoogle Scholar.

38. Avruch, “Expanded Canon”, supra note 22 at 578. See also Sargent, Picard & Jull, supra note 37 at 356: “[T]ranslating the language of values into the language of interests, we argue, fails to capture the dynamic between them, the experience of the threat and the intensity of attachment to particular outcomes”; Kahane, David “Dispute Resolution and the Politics of Cultural Generalization” (2003) 19:1 Negotiation J 5 at 8 and 21CrossRefGoogle Scholar [Kahane, “Dispute Resolution”].

39. See ibid at 8, 12-13; Picard, Cheryl A & Melchin, Kenneth R, “Insight Mediation: A Learning-Centered Mediation Model” (2007) 23:1 Negotiation J 35 at 36-37CrossRefGoogle Scholar. For Picard and Melchin, when integrative negotiators “probe for issues underlying the conflict, they tend to focus on information related to the problem itself, rather than on exploring broader issues related to the parties’ identities and relationships.”

40. See, e.g., Avruch, Kevin, “Culture and negotiation pedagogy” (2000) 16:4 Negotiation J 339 at 342-43CrossRefGoogle Scholar [Avruch, “Culture”]; Kahane, “What is Culture?”, supra note 22 at 33-39.

41. Ury, Fisher & Patton, supra note 8 at 44-46.

42. Menkel-Meadow, “Toward Another View”, supra note 8 at 838-39.

43. For a useful discussion of the application of interest-based negotiation to disputes involving divergent cultural values, see Barkai, John, “Cultural Dimension Interests, the Dance of Negotiation, and Weather Forecasting: A Perspective on Cross-Cultural Negotiation and Dispute Resolution” (2008) 8:3 Pepp Disp Resol LJ 403 Google Scholar.

44. Atran, Scott & Axelrod, Robert, “Reframing Sacred Values” (2008) 24:3 Negotiation J 221 at 235CrossRefGoogle Scholar.

45. As noted, this is not to say that such a resolution will always be found. [In some cases, it may be impossible to find an outcome that respects both sets of values (consider, for example, proposals to remove a Haudenosaunee burial ground, a proposition anathema to certain Haudenosaunee spiritual beliefs).] The argument here is simply that the presence of value conficts and identity concerns does not preclude express efforts to address those concerns alongside the other concerns of the parties.

46. See, e.g., Mannix, Elizabeth A & Neale, Margaret A, “Power Imbalance and the Pattern of Exchange in Dyadic Negotiation” (1993) 2:2 Group Decis Negot 119 CrossRefGoogle Scholar; Friedman, Raymond A, “Missing Ingredients in Mutual Gains Bargaining Theory” (1994) 10:3 Negotiation J 265 CrossRefGoogle Scholar; McCallum, Andrea Gaye, “Dispute Resolution Mechanisms in the Resolution of Comprehensive Aboriginal Claims: Power Imbalance between Aboriginal Claimants and Governments”, online: (1995) 2:1 E LAW http://worldlii.austlii.edu.au Google Scholar; Montminy, Joëlle, The Search for Appropriate Dispute Resolution Mechanisms to Resolve Aboriginal Land Claims: Empowerment and Recognition, (LLM Thesis, University of British Columbia, 1996) [unpublished] at 97-103Google Scholar; Lax & Sebenius, supra note 8 at 250-52.

47. See, e.g., Fiss, Owen M, “Against Settlement” (1984) 93 Yale LJ 1073 CrossRefGoogle Scholar (criticizing the use of negotiation in general where power imbalance exists); Pirie, Andrew J, Alternative Dispute Resolution: Skills, Science, and the Law (Toronto: Irwin Law, 2000) at 299.Google Scholar

48. See Coyle, “Les négoçiations”, supra note 6; Coyle, “Transcending Colonialism”, supra note 6. See also Woolford, “Between Justice”, supra note 13; Alcantara, supra note 13.

49. See Rubin, JZ & Brown, BR, The Social Psychology of Bargaining and Negotiation (San Diego: Academic Press, 1975) at 2 Google Scholar; Lax & Sebenius, supra note 8 at 250; Adler, Robert S & Silverstein, Elliot M, “When David Meets Goliath: Dealing with Power Differentials in Negotiations” (2000) 5 Harv Neg L Rev 1 Google Scholar.

50. See, e.g., Wolfe, Rebecca J & McGinn, Kathleen L, “Perceived Relative Power and Its Influence on Negotiations” (2005) 14:1 Group Decis Negot 3 at 6CrossRefGoogle Scholar; Lax & Sebenius, supra note 8 at 165-66; Lewicki, Saunders & Barry, supra note 16 at 36-38.

51. See, e.g., Greenhalgh, Leonard, Neslin, Scott A & G, Roderick Wilkey, “The Effects of Negotiator Preferences, Situational Power, and Negotiator Personality on Outcomes of Business Negotiations” (1985) 28:1 Acad Manag J 9 at 12, 29Google Scholar; Lawler, EJ, “Power Processes in Bargaining” (1992) 33:1 Sociol Quart 17 at 26-28CrossRefGoogle Scholar; Kim, Peter H, Pinkley, Robin L & Fragale, Alison R, “Power Dynamics in Negotiation” (2005) 30:4 Acad Manage Rev 799 at 803-04CrossRefGoogle Scholar.

52. For a fuller exposition of this analysis, see Coyle, “Transcending Colonialism”, supra note 6 and Coyle, “Les négoçiations”, supra note 6. For scholars who have reached a similar conclusion in the context of other Crown-Aboriginal negotiations, see Imai, Shin, “Sound Science, Careful Policy Analysis, and Ongoing Relationships: Integrating Litigation and Negotiation in Aboriginal Lands and Resources Disputes” (2003) 41 Osgoode Hall LJ 587 at 610-11Google Scholar; Montminy, supra note 46 at 97-103.

53. See, e.g., R v Pamajewon, [1996] 2 SCR 821 at para 27Google Scholar: “The appellants themselves would have this Court characterize their claim as to ‘a broad right to manage the use of their reserve lands’. To so characterize the appellants’ claim would be to cast the Court’s inquiry at a level of excessive generality. Aboriginal rights, including any asserted right to self-government, must be looked at in light of the specific circumstances of each case and, in particular, in light of the specific history and culture of the aboriginal group claiming the right.” See also Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 170Google Scholar.

54. The most recent initiative, the 1992 Charlottetown Accord, would have provided that “aboriginal peoples of Canada have the inherent right to self-government within Canada.” A majority of Canadians opposed the Accord in a general referendum, with most First Nations members also rejecting the proposal out of hand.

55. See supra note 2.

56. See Coyle, “Les négoçiations”, supra note 6; Kahane, “What is Culture?”, supra note 22 at 38; Young, Iris Marion, Inclusion and Democracy (Oxford: Oxford University Press, 2000) at 37-51Google Scholar.

57. See, e.g., McAlister, Leigh, Bazerman, Max H & Fader, Peter, “Power and Goal Setting in Channel Negotiations” (1986) 23:3 J Marketing Res 228 at 235-36CrossRefGoogle Scholar; Rubin & Brown, supra note 49 at 213-33; Lawler, supra note 51 at 27 and 30.

58. See Kim, PH & Fragale, AR, “Choosing the Path to Bargaining Power: An Empirical Comparison of BATNAs and Contributions in Negotiation” (2005) 90:2 J Appl Psychol 373 CrossRefGoogle ScholarPubMed; Wolfe & McGinn, supra note 50.

59. See Rubin & Brown, supra note 49 at 221-23; McAlister, Bazerman & Fader, supra note 57 at 235-36; Wolfe & McGinn, supra note 50 at 6.

60. See Kim, Pinkley & Fragale, supra note 51 at 813-14; Lawler, supra note 51 at 30.

61. Adler & Silverstein, supra note 49 at 4-5 describe such resistance as the “power paradox”, arising from four primary causes: 1) parties with greater power may adopt coercive tactics, leading to resistance by the weaker party; 2) those with less power may view agreements as demeaning even if they result in greater gains than their BATNA; 3) weaker parties may respond to coercive tactics with more rigid positions; 4) weaker parties may be suspicious of their counterpart’s intentions, leading them to refuse terms that might otherwise seem reasonable.

62. See studies cited in supra note 27.

63. See AANDC Evaluation, supra note 15 at 33, which finds that the bargaining “relationship continues to be unequal, with Canada possessing more power in negotiations while attitudes remain adversarial and inflexible instead of working towards mutually beneficial and community-specific partnerships.”

64. See, in the context of indigenous negotiation, Pirie, supra note 47 at 299; Woolford, Andrew, “Negotiating affirmative repair: Symbolic violence in the British Columbia treaty process” (2004) 29:1 Can J Sociol 111 Google Scholar[Woolford, “Negotiating Affirmative Repair”] at 119-20 and 135. More generally, see Avruch, “Expanded Canon”, supra note 22 at 577.

65. For other analyses that support thoughtful efforts to implement integrative tactics in the context of power imbalance, see Fisher, Roger, “Negotiating Power: Getting and Using Influence” (1983) 27:2 Am Behav Sci 149 CrossRefGoogle Scholar; Menkel-Meadow, “Toward Another View”, supra note 8 at 833; Mayer, Bernard, “The Dynamics of Power in Mediation and Negotiation” (1987) 16 Conflict Resol Q 75 at 79Google Scholar; Susskind & Cruikshank, supra note 8 at 135.

66. On the concern that minority world views may be misrecognized or subordinated in intercultural negotiations, see Tully, James, “The Struggles of Indigenous Peoples for and of Freedom” in Ivison, Duncan, Patton, Paul & Sanders, Will, eds, Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press, 2000)Google Scholar (marginalization referred to as “internal colonization”); Kahane, “What is Culture?”, supra note 22 at 29-45; Woolford, “Negotiating Affirmative Repair”, supra note 64 at 135.

67. LeBaron, Michelle, “Learning New Dances: Finding Effective Ways to Address Intercultural Disputes” in Bell, Catherine & Kahane, David, eds, Intercultural Dispute Resolution in Aboriginal Contexts (Vancouver: UBC Press, 2004) at 22-23Google Scholar; Imai, supra note 52 at 618; Pirie, supra note 47 at 302; Victor, supra note 22 at 30-32.

68. See, e.g., ibid; Blair, supra note 22 at 4-14.

69. LeBaron, supra note 67 at 22; Kahane, “What is Culture?”, supra note 22 at 39-52.

70. See Kahane, “What is culture?”, supra note 22 at 46; Dockstator, supra note 22; Blair, supra note 22 at 14-18.

71. Pirie, supra note 47 at 110 citing Avruch, “Culture”, supra note 40 at 343. See also Blair, supra note 22 at 14-18.

72. Dockstator, supra note 22 at 168.

73. For focusing on general goals and on processes to strengthen and restore relationships, see Arbaugh, Matt, “Making Peace the Old Fashioned Way: Infusing Traditional Tribal Practices in Modern ADR” (2002) 2:2 Pepp Disp Resol LJ 303 Google Scholar; Yazzie, Robert, “Navajo Peacemaking and Intercultural Dispute Resolution” in Bell, Catherine & Kahane, David, eds, Intercultural Dispute Resolution in Aboriginal Contexts (Vancouver: UBC Press, 2004) at 107-15Google Scholar.

74. I have adapted here the words of Carrie Menkel-Meadow in relation to the compatibility of integrative negotiation theory and feminism. See Menkel-Meadow, “Gotten to Yes”, supra note 37 at 495.