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Papers by Gordon Christie
Osgoode Hall Law Journal
The choice of discourse-how we describe where we are and how we got here-has a major effect on wh... more The choice of discourse-how we describe where we are and how we got here-has a major effect on what we define as problems and the kind of solutions we seek.
University of Toronto Press eBooks, Dec 31, 2019
https://commons.allard.ubc.ca/books/1050/thumbnail.jp
University of Toronto Press eBooks, Dec 31, 2019
Canadian courts have taken a more liberal approach through the presumption of conformity to devel... more Canadian courts have taken a more liberal approach through the presumption of conformity to develop Canadian law in line with the values and principles underlying Canada's human rights obligations.
This work is licensed under a Creative Commons Attribution-Non-commercial-No Derivatives License.
Osgoode Hall Law Journal, 2021
When an Aboriginal right is asserted, questions arise about the nature of the “proper” rights-hol... more When an Aboriginal right is asserted, questions arise about the nature of the “proper” rights-holder. Canadian jurisprudence has understood Aboriginal claims as culturally grounded (R v Van der Peet). This article tracks how this plays out, looking not just at rights-claims that directly fit the “integral to the distinct culture” test, but also at claims that might be possible should the Supreme Court allow for rights that need not be tied to specific “customs, practices and traditions” following its treatment of Aboriginal title (R v Delgamuukw). Next, this article focuses on Indigenous self-determination. This interpretive lens raises questions about why jurisprudence has been built the way it has, exploring an underlying principled approach (which treats Aboriginal rights as claims of groups accorded weight within the multicultural setting of modern liberal democracy). This analysis highlights why current jurisprudential approaches leave no room for robust forms of Indigenous self-determination. The endgame is predetermined; namely, the authority of Indigenous collectives is severely diminished. If identifying who proper rights-holders are is left to Canadian courts, we fail to engage with fundamentally important matters of Indigenous self-determination
Critical Review of International Social and Political Philosophy, 2022
ABSTRACT Arguments about the supersession of historic injustice often use the dispossession of In... more ABSTRACT Arguments about the supersession of historic injustice often use the dispossession of Indigenous lands as an example of the sort of injustice in the past that can be superseded in certain circumstances. This article aims not to directly challenge the content of such arguments but to place them into a different context, wherein they are seen playing a role in ongoing efforts to remove Indigenous understandings of law, justice, and morals from discussions about state-Indigenous histories and interactions. The normative narrowness of these arguments is explored alongside developments within Canadian law that purport to respond to the historic denial of substantive Indigenous interests in lands by colonial and Canadian authorities. While the analysis predominantly takes a bird’s-eye view of the interaction of varied normative systems, the conclusion advances a normatively charged argument, as I speculate about why courts – and academics writing about the passage of time – seem intent on developing arguments that displace Indigenous understandings.
The author's intent is to consider the place of critical theory in relation to the analysis o... more The author's intent is to consider the place of critical theory in relation to the analysis of Aboriginal rights in Canada. Rather than parachute into the heart of the form of critical theory he explores and questions its utility in this context, and works his way to these concerns about certain critical approaches as he explores other theoretical approaches. The journey reaches a rich landscape before this end point, at the place where theory challenges superficial understanding of Canadian Law as it applies to Aboriginal peoples, before it transforms into theory that becomes too culture-specific. The journey reveals that the destination is a potentially dangerous and energy-sapping location. Indigenous scholars are warned to tread carefully if they follow this path to its conclusion.
This paper focuses on the Supreme Court of Canada\u27s decision in Mitchell v. M.N.R., [2001] S.C... more This paper focuses on the Supreme Court of Canada\u27s decision in Mitchell v. M.N.R., [2001] S.C.R. 911, as an illustration of what is wrong in contemporary jurisprudence on Aboriginal rights. The concurring judgment of Binnie J. is discussed as a potential preview to the Court\u27s approach to claims of Aboriginal self-determiniation. This paper digs into the ruins of Aboriginal law, to make sense of the doctrine of sovereign incompatibility, to come to some sense of how the field of Aboriginal law has come to trap Aboriginal peoples. The paper closes with suggestions about how Aboriginal rights might be resurrected from the ruins of Aboriginal law
The Canadian Journal of Law and Jurisprudence
Many contemporary Indigenous communities in Canada assert an ability to make fundamental authorit... more Many contemporary Indigenous communities in Canada assert an ability to make fundamental authoritative decisions about what is acceptable use of their territories. I focus on the question of legal obligations that might befall the Crown in its relationships with these communities and their claims. I argue that any such obligations must be seen as culturally and contextually specific, not only in the sense that particular Crown obligations take on content and form within the context of the culture within which the Canadian legal system has emerged but also in the sense that this non-Indigenous culture and history generate the very meaning of the notion of ‘obligation’ here at play. This culturally determined meaning functions to make it extremely difficult to make sense of the notion the Crown actually has legal obligations in relation to Indigenous assertions of authority over territories. This suggests decolonization in this context should be focused on discursive colonization and ...
... visioning how this particular nation-state, (first a colony, then a parliamentary democracy, ... more ... visioning how this particular nation-state, (first a colony, then a parliamentary democracy, now ... of Delgamuukw v. British Columbia" (1999) 37 Osgoode Hall LJ 537 [hereinafter "Sovereignty's Alchemy"]; Taiaiake ... on the matter, so we can all learn from the ensuing dialogue on the ...
Tout au long de la longue relation coloniale entre le Canada et les nations autochtones, la Couro... more Tout au long de la longue relation coloniale entre le Canada et les nations autochtones, la Couronne et l'organisation judiciaire ont travaill depair. Historiquement, les branches exjcutive et ligislative du gouvernement ont divelopp et mis en vigueur des politiques ...
Supreme Court Law Review, 2002
Osgoode Hall Law Journal
The choice of discourse-how we describe where we are and how we got here-has a major effect on wh... more The choice of discourse-how we describe where we are and how we got here-has a major effect on what we define as problems and the kind of solutions we seek.
University of Toronto Press eBooks, Dec 31, 2019
https://commons.allard.ubc.ca/books/1050/thumbnail.jp
University of Toronto Press eBooks, Dec 31, 2019
Canadian courts have taken a more liberal approach through the presumption of conformity to devel... more Canadian courts have taken a more liberal approach through the presumption of conformity to develop Canadian law in line with the values and principles underlying Canada's human rights obligations.
This work is licensed under a Creative Commons Attribution-Non-commercial-No Derivatives License.
Osgoode Hall Law Journal, 2021
When an Aboriginal right is asserted, questions arise about the nature of the “proper” rights-hol... more When an Aboriginal right is asserted, questions arise about the nature of the “proper” rights-holder. Canadian jurisprudence has understood Aboriginal claims as culturally grounded (R v Van der Peet). This article tracks how this plays out, looking not just at rights-claims that directly fit the “integral to the distinct culture” test, but also at claims that might be possible should the Supreme Court allow for rights that need not be tied to specific “customs, practices and traditions” following its treatment of Aboriginal title (R v Delgamuukw). Next, this article focuses on Indigenous self-determination. This interpretive lens raises questions about why jurisprudence has been built the way it has, exploring an underlying principled approach (which treats Aboriginal rights as claims of groups accorded weight within the multicultural setting of modern liberal democracy). This analysis highlights why current jurisprudential approaches leave no room for robust forms of Indigenous self-determination. The endgame is predetermined; namely, the authority of Indigenous collectives is severely diminished. If identifying who proper rights-holders are is left to Canadian courts, we fail to engage with fundamentally important matters of Indigenous self-determination
Critical Review of International Social and Political Philosophy, 2022
ABSTRACT Arguments about the supersession of historic injustice often use the dispossession of In... more ABSTRACT Arguments about the supersession of historic injustice often use the dispossession of Indigenous lands as an example of the sort of injustice in the past that can be superseded in certain circumstances. This article aims not to directly challenge the content of such arguments but to place them into a different context, wherein they are seen playing a role in ongoing efforts to remove Indigenous understandings of law, justice, and morals from discussions about state-Indigenous histories and interactions. The normative narrowness of these arguments is explored alongside developments within Canadian law that purport to respond to the historic denial of substantive Indigenous interests in lands by colonial and Canadian authorities. While the analysis predominantly takes a bird’s-eye view of the interaction of varied normative systems, the conclusion advances a normatively charged argument, as I speculate about why courts – and academics writing about the passage of time – seem intent on developing arguments that displace Indigenous understandings.
The author's intent is to consider the place of critical theory in relation to the analysis o... more The author's intent is to consider the place of critical theory in relation to the analysis of Aboriginal rights in Canada. Rather than parachute into the heart of the form of critical theory he explores and questions its utility in this context, and works his way to these concerns about certain critical approaches as he explores other theoretical approaches. The journey reaches a rich landscape before this end point, at the place where theory challenges superficial understanding of Canadian Law as it applies to Aboriginal peoples, before it transforms into theory that becomes too culture-specific. The journey reveals that the destination is a potentially dangerous and energy-sapping location. Indigenous scholars are warned to tread carefully if they follow this path to its conclusion.
This paper focuses on the Supreme Court of Canada\u27s decision in Mitchell v. M.N.R., [2001] S.C... more This paper focuses on the Supreme Court of Canada\u27s decision in Mitchell v. M.N.R., [2001] S.C.R. 911, as an illustration of what is wrong in contemporary jurisprudence on Aboriginal rights. The concurring judgment of Binnie J. is discussed as a potential preview to the Court\u27s approach to claims of Aboriginal self-determiniation. This paper digs into the ruins of Aboriginal law, to make sense of the doctrine of sovereign incompatibility, to come to some sense of how the field of Aboriginal law has come to trap Aboriginal peoples. The paper closes with suggestions about how Aboriginal rights might be resurrected from the ruins of Aboriginal law
The Canadian Journal of Law and Jurisprudence
Many contemporary Indigenous communities in Canada assert an ability to make fundamental authorit... more Many contemporary Indigenous communities in Canada assert an ability to make fundamental authoritative decisions about what is acceptable use of their territories. I focus on the question of legal obligations that might befall the Crown in its relationships with these communities and their claims. I argue that any such obligations must be seen as culturally and contextually specific, not only in the sense that particular Crown obligations take on content and form within the context of the culture within which the Canadian legal system has emerged but also in the sense that this non-Indigenous culture and history generate the very meaning of the notion of ‘obligation’ here at play. This culturally determined meaning functions to make it extremely difficult to make sense of the notion the Crown actually has legal obligations in relation to Indigenous assertions of authority over territories. This suggests decolonization in this context should be focused on discursive colonization and ...
... visioning how this particular nation-state, (first a colony, then a parliamentary democracy, ... more ... visioning how this particular nation-state, (first a colony, then a parliamentary democracy, now ... of Delgamuukw v. British Columbia" (1999) 37 Osgoode Hall LJ 537 [hereinafter "Sovereignty's Alchemy"]; Taiaiake ... on the matter, so we can all learn from the ensuing dialogue on the ...
Tout au long de la longue relation coloniale entre le Canada et les nations autochtones, la Couro... more Tout au long de la longue relation coloniale entre le Canada et les nations autochtones, la Couronne et l'organisation judiciaire ont travaill depair. Historiquement, les branches exjcutive et ligislative du gouvernement ont divelopp et mis en vigueur des politiques ...
Supreme Court Law Review, 2002
Key findings: • The environmental assessment process chosen by the federal and provincial govern... more Key findings:
• The environmental assessment process chosen by the federal and provincial governments
for the Site C Project did not consider or determine whether or not an approval of the Site
C Project would constitute an infringement of First Nation rights under Treaty No. 8.
• At no point in the process, even when the Site C Project was before the federal and
provincial governments for environmental approval, did any government decision-maker
indicate publicly its consideration or determination, if any, of whether its decision to
approve Site C would infringe Treaty rights.
• The same assessment process also did not comprehensively assess cumulative
environmental effects and related cumulative impacts to First Nation rights under the
Treaty.
• Given the large scale of development activity in the Peace River watershed, these matters
are subject to ongoing litigation.
• This has raised a range of significant issues, including whether any Treaty infringement
resulting from the project could be justified according to the Sparrow test.
• Considering the importance of these issues, the Federal Government’s stated commitment
to reconciliation with First Nations and the Supreme Court’s invocation of the ‘honour of
the Crown’ as a key element of Crown-Indigenous relations, the report concludes that it
would inappropriate to proceed with the Site C Project, including issuing any further
permits related to construction and operation of the Project, before a review has been
conducted by the BC Utilities Commission, and before decisions have been rendered by
the courts.
This report was prepared by a team of researchers led by UBC’s Program on Water Governance, incl... more This report was prepared by a team of researchers led by UBC’s Program on Water Governance,
including Dr. Karen Bakker, Dr. Gordon Christie, and Richard Hendriks.
• The Site C Project is large, costly and complex, which necessitates that it be subject to
the highest level of review available provincially and federally.
• This did not occur. In particular, the Project was entirely exempted from any review by
the BC Utilities Commission.
• The regulatory review was limited to an environmental assessment Joint Review Panel
conducted over a compressed nine-month period by a three-person panel.
• As acknowledged by the Panel, the review process was characterized by insufficient time,
resources and information that compromised the potential for a well-informed,
comprehensive decision-making process.
• The Joint Review Panel stated explicitly in their report that they did not have sufficient
time or resources to properly assess certain key issues, including the costs of the Site C
Project, and thus recommended that the Site C Project be referred to the BC Utilities
Commission, which has not occurred
This report finds that the number and scope of significant adverse environmental effects arising... more This report finds that the number and scope of significant adverse environmental effects
arising from the Site C Project are unprecedented in the history of environmental
assessment in Canada.
• The Joint Review Panel (commissioned by the federal and provincial governments) for
the Site C Project determined that there were significant adverse environmental effects
for dozens of species, as well as for aquatics, vegetation, wildlife, Aboriginal use of lands
and resources, and cultural heritage.
• The alternative portfolio proposed by BC Hydro for meeting the needs for electrical
energy and capacity in British Columbia would have no significant adverse
environmental effects (and a lower overall level of adverse environmental effects),
including in relation to greenhouse gas emissions.
• The sources of the data used in this analysis are public documents, including those
provided by BC Hydro and the environmental assessment Joint Review Panel, as well as
documents from the Canadian Environmental Assessment Agency.