Between Principle and Practicality: A Dynamic Realist Examination of Independence in the Canadian Justice System

This work examines independence in the Canadian justice system using an approach adapted from new legal realist scholarship called ‘dynamic realism’. This approach proposes that issues in law must be considered in relation to their recursive and simultaneous development with historic, social and political events. Such events describe ‘law in action’ and more holistically demonstrate principles like independence, rule of law and access to justice. My dynamic realist analysis of independence in the justice system employs a range methodological tools and approaches from the social sciences, including: historical and historiographical study; public administrative; policy and institutional analysis; an empirical component; as well as constitutional, statutory interpretation and jurisprudential analysis. In my view, principles like independence represent aspirational ideals in law which can be better understood by examining how they manifest in legal culture and in the legal system. This examination focuses on the principle and practice of independence for both lawyers and judges in the justice system, but highlights the independence of the Bar. It considers the inter-relation between lawyer independence and the ongoing refinement of judicial independence in Canadian law. It also considers both independence of the Bar and the Judiciary in the context of the administration of justice, and practically illustrates the interaction between these principles through a case study of a specific aspect of the court system. This work also focuses on recent developments in the principle of Bar independence and its relation to an emerging school of professionalism scholarship in Canada. The work concludes by describing the principle of independence as both conditional and dynamic, but rooted in a unitary concept for both lawyers and judges. In short, independence can be defined as impartiality, neutrality and autonomy of legal decision-makers in the justice system to apply, protect and improve the law for what has become its primary normative purpose: facilitating access to justice. While both independence of the Bar and the Judiciary are required to support access to independent courts, some recent developments suggest the practical interactions between independence and access need to be the subject of further research, to better account for both the principles and the practicalities of the Canadian justice system.

An Examination of Current Approaches to Integrative Indigenous and Western Knowledge System Implementation in Water Research and Management: A Case Study Encompassing the Colonized Geographies of Canada, Australia, New Zealand, and the United States

The commodification of natural resources and the pursuit of continuous growth has resulted in environmental degradation, depletion, and disparity in access to these life-sustaining resources, including water. Utility-based objectification and exploitation of water in some societies has brought us to the brink of crisis through an apathetic disregard for present and future generations. The ongoing depletion and degradation of the world’s water sources, coupled with a reliance on Western knowledge and the continued omission of Indigenous knowledge to manage our relationship with water has unduly burdened many, but particularly so for Indigenous communities. The goal of my thesis research is to call attention to and advance the value and validity of using both Indigenous and Western knowledge systems (also known as Two-Eyed Seeing) in water research and management to better care for water. To achieve this goal, I used a combined systematic and realist review method to identify and synthesize the peer-reviewed, integrative water literature, followed by semi-structured interviews with first authors of the exemplars from the included literature to identify the challenges and insights that researchers have experienced in conducting integrative water research. Findings suggest that these authors recognize that many previous attempts to integrate Indigenous knowledges have been tokenistic rather than meaningful, and that new methods for knowledge implementation are needed. Community-based participatory research methods, and the associated tenets of balancing power, fostering trust, and community ownership over the research process, emerged as a pathway towards the meaningful implementation of Indigenous and Western knowledge systems. Data also indicate that engagement and collaborative governance structures developed from a position of mutual respect are integral to the realization of a given project. The recommendations generated from these findings offer support for future Indigenous-led research and partnerships through the identification and examination of approaches that facilitate the meaningful implementation of Indigenous and Western knowledge systems in water research and management. Asking Western science questions and seeking Indigenous science solutions does not appear to be working; instead, the co-design of research projects and asking questions directed at the problem rather than the solution better lends itself to the strengths of Indigenous science.