When rules impede Indigenous engagement

What is it about?

In Canada, governments must consult Indigenous communities on resource projects. When a government agency believes in a project’s necessity, it has the institutional power to impose a dominant discourse for the project. A dominant arguer produces the dominant reasoning discourse by imposing the authority rules to which others must submit to participate in the reasoning exchanges structured by this dominant arguer. For example, in determining the evidence availability and allocating the burdens of proof in consultations, rules of dominant discourse often make it easy for the dominant arguer (the agency) not to engage with the Indigenous arguers opposing the project but rebut their opposing arguments with an Argument Continuity (AC). AC is a set of arguments and counterarguments repeatedly produced and reproduced by the same arguer through an adversarial reasoning process to dismiss unfavorable arguments without considering their merits. ACs are a new strategy of fallacious reasoning contingent upon motivated criticism – a hidden reasoning practice of dominant discourse. Reconstructing the motivated criticism in the sequential development of reasoning goals, practices, and outcomes, ACs detect it and let us know that disagreement has been suppressed. The paper evolves around answering whether ACs are contingent upon the authority rules or the dominant agency of the reasoning discourse. Firstly, I test ACs in two institutionally diverse cases of controversial Indigenous consultations – over the Trans Mountain Pipeline Expansion project and the Site C Clean Energy project. I found that ACs are the fallacious reasoning outcome contingent upon the rules of consultative exchanges. They are most likely to be produced under certain rules of reasoning exchanges rather than by a certain agency. Secondly, applying the logic of increasing returns and the process-tracing method, I uncover how the rules of those consultations distribute the resources (evidence sources) and attach different incentives (costs/benefits) to the reasoning exchanges between the Crown’s officials, industry proponents, and Indigenous communities, determining which evidence can be accepted and which epistemic procedures can be applied for testing evidence. I found that different rules produce different contextual capacities of the same powerful Crown to pursue different reasoning strategies (directional v. deliberative) and reach different reasoning outcomes (ACs v. compromise) in two institutionally diverse cases of consultations with Indigenous communities. In the Trans Mountain case, the National Energy Board's rules of hearing procedures determining evidence availability and allocating the burdens of proof made it highly costly for Indigenous communities to participate in the Indigenous hearings – articulate the arguments and bring the evidence inconsistent with the TM proponent’s assessments. In the Site C case, the Agreement rules establishing the Joint Review Panel for coordinating the Site C hearings made it easy for Indigenous communities to bring their evidence in an epistemically affordable way and challenge the Site C proponent. Making Indigenous participation too costly, the rules of the Trans Mountain hearings made it extremely easy for the agency's officials to rebut Indigenous evidence inconsistent with the TM proponent’s assessments with ACs. Otherwise, making Indigenous participation less costly, the rules of the Site C hearings made it hard for government officials to avoid critical engagement with Indigenous arguers over compelling facts. As a result, a compromise has been reached between the evidence brought by Indigenous communities and the Site C proponent on some reasoning issues (the Site C project's cumulative effects). The paper concludes that the rules of Indigenous consultations should preserve the argumentative, two-way nature of reasoning exchanges for and against the controversial project by securing an equal reasoning capacity for Indigenous arguers to express their disagreement and bring their evidence in the most available way.

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Photo by Roman Serdyuk on Unsplash

Photo by Roman Serdyuk on Unsplash

Why is it important?

ACs are not specific to the Crown-Indigenous relationships. However, this fact does not undermine ACs’ usefulness in studying the dominant discourse of motivated criticism in any context of public policy reasoning structured by authority rules. ACs are a specific tool for tracing the effects of institutional power in reasoning interactivity by sequencing the reasoning moves of dominant arguers to make it obvious how dominant arguers respond to disagreement from less powerful arguers. ACs signal dominance, learning avoidance, and a limited argument pool. Firstly, this knowledge can tremendously benefit Indigenous arguers in recognizing and resisting the fallacious moves by the Crown’s officials over outstanding Indigenous concerns. Secondly, the knowledge of the resource incentive mechanism underlying the production of ACs can tremendously benefit policymakers in designing rules contributing to the use of argumentation in Indigenous consultations. Generally, rules bring stability to human interactions by ordering exchanges and outcomes. However, too much stability threatens argumentation, an epistemic practice of exchanging diverse arguments to approach an indeterminate reasoning outcome. Indigenous hearings are a unique legal venue for Indigenous communities to articulate their epistemically diverse resource development concerns. Therefore, the rules of Indigenous hearings are primarily communication rules that should preserve the argumentative nature of consultative exchanges, especially in cases when the Crown's officials rely upon the environmental assessment process of an agency to discharge the Crown's duty to consult. No space for the Indigenous disagreement resolution is left when rules prescribe each step in reasoning interactivity: what, when, and how inconsistent and epistemically diverse arguments should be exchanged. In such a case, hearings will lose their argumentative nature. The epistemic success of Indigenous hearings depends on whether agencies would avoid dense regulations of hearings and recognize the epistemic egalitarianism of Indigenous arguers in articulating resource development concerns.

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