Research Proposal - Michael Coyle by scl14029

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									                     Edinburgh Research Project, Fall -Winter2008-2009

                              Associate Professor, Faculty of Law
                                University of Western Ontario

 Recognising Indigenous Rights: The Robustness of Interest-Based Negotiation Strategies

BACKGROUND: Recent decisions of the Supreme Court of Canada have made clear that the
court is reluctant to address the question of the existence or scope of broad governance rights for
indigenous peoples in Canada. Instead, the Court has urged the use of negotiation to resolve the
issues. Current federal and provincial governments policies express a commitment to
implementing self-government and settling land claims through negotiations with indigenous
peoples. At present, as in many other nations, indigenous peoples are engaged in lengthy and
complex discussions to determine the appropriate scope of self-government arrangements and to
find a mutually acceptable solution to long-standing land claims.

Thus, negotiation has taken on a new significance in the effort to ascertain and confirm
indigenous rights. In principle, negotiation allows the parties to fashion together creative,
flexible and enduring outcomes, through a process that enhances their future relationship. Such
negotiations clearly face a number of challenges, including resourcing issues and important
differences of view as to the nature of the desired outcome. However, even if those concerns are
resolved, (perhaps by finding mutually acceptable policy guidelines to govern the negotiations)
the critical challenge remains for the parties to find negotiation strategies that will be both
effective and respectful of the cultural differences of the negotiating parties.

FOCUS OF RESEARCH: My research will examine what is frequently considered in public
policy circles to be the most enlightened negotiation strategy: i.e., interest-based (or
“integrative”) bargaining. It will focus, from a theoretical perspective, on the question of whether
interest-based negotiation strategies are capable of serving as a effective framework for resolving
indigenous rights disputes. Does the interest–based approach, with its Euro-American (Harvard)
pedigree and its focus on maximizing the parties’ ability to satisfy their “interests”, create a bias
from the outset against those with indigenous worldviews and traditions of consensus building?
Or, do interest-based negotiation strategies have sufficient inherent flexibility to be used, with
sensitivity to both sides’ perspectives, as an effective tool in bridging the cultural divide? If so,
what factors need to be addressed if the parties are considering using an interest-based approach
to guide their negotiations?

 My research will involve a review of the academic literature supporting the use of interest-based
negotiation strategies (Fisher, Susskind, Menkel-Meadow et al) to examine its premises,
theoretical strengths and purported functional advantages. Key critiques of the approach will also
be reviewed (Condlin, etc)). In particular I will assess critiques that focus on the adequacy of
interest-based strategies in circumstances of gender or cultural difference (Grillo, LeBaron, et al)
and power imbalance. The potential advantages of using interest-based negotiation to develop
frameworks for indigenous governance include its flexibility and its capacity to encourage the
canvassing of imaginative options for resolution. The goal of this research is to determine




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whether there are strong a priori reasons to reject the interest-based model as inappropriate for
the negotiation of indigenous governance rights.

RELATIONSHIP OF THIS PROJECT TO OTHER RESEARCH BY THE WRITER:

The research I will pursue in Edinburgh will further the general research I am pursuing under a
five-year Canada Council (SSHRC) grant which sees a group of Canadian academics from
different disciplines examining diverse aspects of the journey toward indigenous governance.
The Edinburgh research, with its focus on the robustness of interest-based negotiation, flows out
of more particular critiques I have published in relation to specific ADR models now in place in
relation to indigenous rights disputes. The questions to be addressed in the Edinburgh research
are relevant outside the context of indigenous rights, and should be of interest to those analyzing
international efforts to accommodate cultural distinctiveness through the development of new
institutions for governance.

Related publications by the writer:

   “ADR Processes and Indigenous Rights: A Comparative Analysis of Australia, Canada and
    New Zealand” in S. Imai, K. McNeil and B. Richardson, eds., Indigenous Peoples and the
    Law: Comparative and Critical Perspectives (Oxford: Hart Publishing) forthcoming in
    March, 2009.

   “Marginalized by Sui Generis? Duress, Undue Influence and Crown-Aboriginal
    Treaties”(2007) 32(2) Manitoba Law Journal 34-64.

   “Respect for Treaty Rights in Ontario: The Law of the Land?” (2007-8) 39(2) Ottawa Law
    Review 405-438.

   “Power and Negotiation” in C. Hanycz, T. Farrow and F. Zemans, eds., The Theory and
    Practice of Representative Negotiation (Toronto: Emond-Montgomery, 2007) 159 – 187.

   “Addressing Aboriginal Land Rights in Ontario: An Analysis of Past Policies and Options
    for the Future – Part II” (2006) 31 Queen’s Law Journal 796-845.

   “Addressing Aboriginal Land Rights in Ontario: An Analysis of Past Policies and Options
    for the Future – Part 1” (2005) 31 Queen’s Law Journal 75-120.

   “Loyalty and Distinctiveness: A New Approach to the Crown’s Fiduciary Duty Toward
    Aboriginal Peoples” (2003) 40 Alberta Law Review 841.

   “Defending the Weak and Fighting Unfairness: Can Mediators Respond to the Challenge?”
    (1998) 36 Osgoode Hall L.J. 625.

   “Claims Resolution: A Healing Process?” in Jill Oakes et al, ed., Sacred Lands: Aboriginal
    World Views, Claims, and Conflicts (Calgary: Canadian Circumpolar Institute, 1998).



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   Aboriginal Issues Today: A Legal and Business Guide, co-edited with Stephen Smart,
    (Vancouver: Self-Counsel Press, 1997).

   Indian Negotiations in Ontario: Making the Process Work, Indian Commission of Ontario,
    1994 (co-authored).

   Discussion Paper on Land Claims (Toronto: Indian Commission of Ontario, 1990)           (co-
    authored).

   "Traditional Indian Justice in Ontario: A Role for the Present?" (1986) 24 Osgoode Hall L.J.
    605.




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