Sound Science, Careful Policy Analysis, and Ongoing Relationships: Integrating Litigation and Negotiation in Aboriginal Lands and Resources Disputes

Until recently, both courts and dispute resolvers have viewed negotiation and adjudication as two separate processes. What occurred in one process was considered largely irrelevant to what went on in the other. Recently, however, there has been a growing recognition that both processes must work together to resolve disputes over Aboriginal lands and resources. This paper weaves together the emerging trends in court decisions with the new thinking on dispute system design to set out a framework that maximizes the strengths of each process. In this framework, the courts are responsible not only for adjudicating on the substance of Aboriginal and treaty rights, but also for establishing standards for the negotiation process itself, thereby increasing the likelihood of a fair and durable resolution