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The recent Ktunaxa Nation decision of the Supreme Court of Canada provides an opportunity to discuss the fundamental legal presumptions that underlie the Crown’s duty to consult and accommodate Aboriginal peoples. The jurisprudence in this area has been based on a “thick” conception of Crown sovereignty as including legislative power and underlying title in relation to Aboriginal lands. This, in the Supreme Court’s view, justifies the possibility of the unilateral infringement of Aboriginal rights. This framework assumes that the relationship between the Crown and Aboriginal peoples is a sovereign-to-subjects one. This assumption, however, lacks a legal and factual basis. Conversely, Aboriginal peoples articulate their claims in the language of inherent jurisdiction within a nation-to nation relationship. If the Supreme Court acknowledged that the relationship between the parties is indeed nation-to-nation, the appropriate doctrine would no longer be a duty to consult and accommodate. Following the approach to a similar relationship outlined by the Supreme Court in the Secession Reference, the appropriate model would be a generative duty to negotiate. This article sets a path to a model that preserves the useful components of the duty to consult while providing a remedy to the distributional inequity in bargaining power created under the current framework, thereby opening avenues for effective conflict resolution.

This article examines the concept of utopia by focusing on the distance between the utopian myths and the actual city they originate in. While the individual work of utopian fiction offers to the attentive reader a map of the neuroses of the author, when taken in general as a genre or type of social conception, it provides the reader with a map of the city as a neurotic social object. Utopia can thus be read as a type of neurotic psychological topography. From this analytic basis, a different mode of inquiry may be deployed, a mode of inquiry that begins with specific urban artifacts that are omitted from the utopian model. In this analysis, the author focuses on the cemetery and the sewer. These abject or pathological urban sites carry a form of contaminative excess within their structures and as such become at once the focal point of anxiety and irreducible fascination.

This article examines the recent Supreme Court of Canada decision in Mikisew Cree First Nation v Canada (Governor General in Council). There, the Court substantively engaged the question of whether the Crown’s duty to consult and accommodate Indigenous peoples about issues affecting their rights extends to the preparation of legislation. While the Court was unanimous in rejecting the claim, its unanimous opinion was confined to a procedural question. The substantive question concerning the duty to consult resulted in four distinct, and largely irreconcilable, judgments. As a result, uncertainty continues to characterize the law in this area. This uncertainty is the result of an Aboriginal rights jurisprudence that has been developed by the courts on the basis of a set of unexamined constitutional presumptions concerning the place of Indigenous peoples in the constitutional order. The resulting doctrine is unable to effectively mediate constitutional disputes between the Crown and Indigenous peoples. This article examines the Mikisew Cree decision in light of this conclusion, arguing that the decision represents a logical outcome of a doctrine that has been concerned with answering the wrong set of questions. Part II maps the four decisions to provide an overview of the lines of reasoning. Part III outlines the positive aspects of each of the lines of reasoning; it is our view that each has something positive and worthwhile to contribute to the analysis. Despite this, the judgments each have significant problems. Part IV addresses these problems and outlines the nature of the incompatibility between the judgments. Part V argues that the confused state of the decision flows from a fundamental contradiction between a vision of section 35 as often articulated by Indigenous peoples – that is, as jurisdictional in nature – and the more limited conception put forward by the courts. Finally, Part VI articulates how revisiting the Charter-like framework the Supreme Court of Canada has developed for section 35 provides a workable path toward a constitutional order that is both honourable and clearly structured.

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