TAKING ORGANIZATIONS SERIOUSLY: RESPONSIBLE AGENCY, ORGANIZATIONS AND THE CRIMINAL LAW

In the post-Enlightenment period, Anglo-American criminal law has been applied with increased force, and an ever expanding scope, to collective actors like corporations and other organizations. Recent scholarship has focused on developing “truly organizational” bases of liability that break with the conventional approach of imputing individual conduct to an organization and instead analyze culpable conduct and intent in a way that reflects the distinct and independent capacity of organizations to pursue their interests or goals collaboratively. In 2004, Canada enacted amendments inspired by these ideas in the hope they would lead to more effective criminal enforcement against organizations. Twelve years later, however, the promise of Bill C-45 is largely unfulfilled. In this thesis, I explore how much of this failure of law reform to deliver transformational change is attributable to an individualist bias that permeates how we think about what it means to be responsible and how this then shapes the responsibility ascription process. Using an analytical framework that combines criminal law theory with selected aspects of rational-structural theory and organization culture, I suggest that a promising way forward may lie in reframing the essential qualities required to be a subject of the criminal law in a way that captures the unique attributes that make organizations different from individuals. The resulting organizational concept of responsible agency allows for an integration of organizational reality into how we assess organizational culpability while keeping the ambit of criminal liability within the limits of what is practicable and fair. This better aligns with the spirit of Bill C-45: to impose criminal liability in a way that takes organizations – and their crimes – seriously.

Strategic Diplomacies: Indigenous Governance, International Politics, and Natural Resources in Canada

International Relations theory would predict that central governments, with their considerable material resources, would be unlikely to face a challenge from a substate government. However, substate governments, and particularly Indigenous governments, are pushing back against central government control in both domestic and international spheres. Indigenous governments are leveraging their local mining sectors to realize their interests and express local identities—interests and identities that may not be congruent with those of the central government. Applying the case study of the resource extraction sector in Canada, this thesis asks: under what conditions are substate governments able to challenge the authority of central governments in the international arena? Canada’s reliance on the global extractive resource sector is a major driver of its international policy preferences, but the increased engagement of Indigenous governments in the sector challenges the control of the federal government. Focusing on the resource extraction sectors in British Columbia, Saskatchewan, and Ontario, this thesis argues that there is a mutually reinforcing relationship between Indigenous governments’ international engagement and their domestic autonomy; both challenge the parameters of state authority. Both force the state to respond to claims of control from multiple sites and to clarify convoluted policy environments. A confluence of factors—including increased Indigenous connections to the globalized economy, new Canadian regulatory frameworks, and recent Supreme Court of Canada cases regarding Indigenous lands—have all altered the space in which Indigenous governments in Canada participate in the resource extraction sector and produce overlapping or multilevel governance structures. This thesis demonstrates that Indigenous international engagement entrenches the authority and political legitimacy manifest in Indigenous governments’ insistence on equitable and horizontal negotiations in Canada’s lucrative resource extraction sector. A cumulative process occurs in which domestic and international expressions of political autonomy reinforce each other, produce further opportunities to express authority in both environments, and trouble the state’s capacity to fully realize its international policy preferences.