Potential Aboriginal Rights-holders: Canada and Cultural Communities versus Indigenous Peoples and Socio-political Bodies

When an Aboriginal right is asserted, questions arise about the nature of the “proper” rights-holder. Canadian jurisprudence has understood Aboriginal claims as culturally grounded (R v Van der Peet). This article tracks how this plays out, looking not just at rights-claims that directly fit the “integral to the distinct culture” test, but also at claims that might be possible should the Supreme Court allow for rights that need not be tied to specific “customs, practices and traditions” following its treatment of Aboriginal title (R v Delgamuukw). Next, this article focuses on Indigenous self-determination. This interpretive lens raises questions about why jurisprudence has been built the way it has, exploring an underlying principled approach (which treats Aboriginal rights as claims of groups accorded weight within the multicultural setting of modern liberal democracy). This analysis highlights why current jurisprudential approaches leave no room for robust forms of Indigenous self-determination. The endgame is predetermined; namely, the authority of Indigenous collectives is severely diminished. If identifying who proper rights-holders are is left to Canadian courts, we fail to engage with fundamentally important matters of Indigenous self-determination

The Ipperwash Inquiry - Symposium on Government/Police Relations: Police-Government Relations in the Context of State-Aboriginal Relations

Common debates over government-police relations share a certain structure – the main realm of contention revolves around questions about how to resolve tension between the concern that the police should be free to act independent of political interference and the concern that the police should, in a liberal democracy, be held accountable for their actions. This paper looks at this tension in the context of state- Aboriginal relations, a process of contextualization that casts a critical eye on the efficacy of the typical forms of analysis that arise from this debate. The first stage of analysis provides a contrast for the process of critical contextualization, as the question of police-government relations in the context of Aboriginal policing issues is treated as if the context introduced no particular or unique problems. At this first stage Aboriginal peoples in Canada are conceptualized as ‘minority populations’ within a liberal democracy, possessed of the rights enjoyed by other disadvantaged minority groups. The second two stages progressively critique this position, introducing first factors related to Aboriginal people’s unique legal and constitutional status in Canada, and then factors relating to Aboriginal people’s distinctive historical (and thereby necessarily political) status in relation to the Canadian state. This form of contextual analysis is critical to making sense of the appropriate relation between the police and the Canadian government when these two bodies intersect with the interests of both Aboriginal nations and Aboriginal individuals within Canada. It is also critically important when attention is turned to particular disputes, for no scenario played out in the arena of Canadian-Aboriginal relations can be adequately understood apart from its place within the larger legal, constitutional, historical and political landscape

Developing Case Law: The Future of Consultation and Accommodation

The aim in this paper is twofold. First, the historical development of the case law around the duty to consult will be laid out (e.g. Delgamuukw v. British Columbia and subsequent cases) and an attempt will be made to make sense of this body of jurisprudence (on both doctrinal and critical levels). Second, an attempt will be made to read out of the current doctrine how future events may unfold \u27on the ground\u27 in the legal and political arena in British Columbia and elsewhere in Canada

A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation

Throughout Canada\u27s long colonial relationship with Aboriginal nations, the Crown and the judiciary have worked in tandem. Historically, executive and legislative arms of government developed and implemented dispossessive and oppressive colonial policies and legal regimes, while the courts consciously developed conceptual frameworks meant to justify the taking of lands and the denial of Aboriginal sovereignty. This essay explores judicial attempts to justify the taking of lands and the denial of Aboriginal sovereignty, with the focus on how doctrinal law has conceived the transition from a world in which collective understandings of Aboriginal nations define the nature of their land interests to a world in which Crown sovereignty is asserted over Aboriginal peoples and their lands. A jurisprudential colonial narrative is thereby illuminated. This colonial narrative is then traced through the trajectory of recent Supreme Court of Canada decisions (moving from Calder to Delgamuukw, and culminating in the recent decision in Haida Nation concerning the Crown\u27s duty to consult). The key question is whether these decisions demonstrate a shift away from the colonial mentality, which the Court has fostered and worked within for so many years. In unpacking recent choices the Supreme Court has made, maintenance of a steady colonial course is revealed. To fully appreciate what it means to say that contemporary jurisprudence is essentially colonial in nature (and thereby to begin to envision paths toward a post-colonial existence), attention must be fixed upon the manner in which the judiciary is revealed as playing a central role in formulating visions of lands, peoples, and their interrelationships. The Supreme Court continues to privilege non-Aboriginal visions of land and land use. In doing so it denies Aboriginal sovereignty, as Aboriginal nations find themselves forced to welcome the opportunity to be consulted about how their own lands will be exploited. In choosing thereby to write another chapter in the colonial narrative, the Court continues the project of constructing a national identity, one that has as its core a central vision of Canada as a colonial state. A post-colonial world will only be realized if Canadian courts rethink the role they play in defining Canada\u27s colonial identity

Indigeneity and Sovereignty in Canada\u27s Far North: The Arctic and Inuit Sovereignty

As the Arctic “opens up” to exploration and economic development, a new stage in colonization looms. This essay builds toward a vision of Arctic nation-states meeting with the Inuit to work out how they might together come to an understanding of how decisions about the future of the Arctic may be appropriately made. The Inuit are currently actively resisting the new wave of colonization within a framework built on the bedrock of nation-state sovereignty. The notion of “sovereignty” serves as a keystone in a system of controlling narratives, functioning to generate and police ways of thinking about decision-making processes, a notion deriving much of its power from its being interwoven with notions of legitimacy and “right.” This concept functions at a deep level, not only upholding decision-making processes but going into the very structuring of meaning, thereby defining ranges of possible thought and action. The central thesis in this work is that the Inuit, occupying a vantage point defined by their Indigeneity (marked by the power they possess to build and maintain their own worlds of meaning through and about themselves, and their relationship to the world around), can advance a second form of resistance, challenging the new wave of colonization by placing their “stories” directly against those built around nation-state sovereignty

Culture, Self-Determination and Colonialism: Issues Around the Revitalization of Indigenous Legal Traditions

This paper works from the assumption that the power of the state to determine and regulate debate around the reinvigoration of Indigenous legal traditions must be set aside, and that the path forward must be laid out by Indigenous peoples. Working out the implications of this assumption leads to ruminations on the roles that identity, colonialism, culture and self- determination must play in structuring debate around the rebuilding of these legal traditions. The position that begins to emerge from these ruminations focuses attention on the need to control processes of identity formation. Given the historical and ongoing impacts of colonial policies and practices, regaining and exercising control over these processes will be challenging in its own right, but only through this sort of strategy will Indigenous nations find that their efforts hold promise of a \u27post-colonial\u27 world for subsequent generations

Law, Theory and Aboriginal Peoples

Some Aboriginal people see domestic Canadian law as alien and oppressive. This paper explores one source of this perception. By examining the layers of theory and world-view upon which the law is based, it finds conflict with the sensibilities of Aboriginal peoples. The author argues that a liberal vision supports and enlivens the law, and because it is grounded in this vision, the law cannot protect the interests of Aboriginal peoples. In analyzing the current legal approach to the protection of Aboriginal interests, an alternative liberal argument based on group autonomy is also considered. By examining the debate between liberal theorists, the author reveals the danger liberalism in general presents to Aboriginal peoples and the protection of Aboriginal interests, thus revealing liberal theory to be one source of the perception of oppression. The law\u27s grounding in a particular intellectual tradition creates the perception that the law is oppressive. In exploring an approach highly critical of liberal legal theory, in tracing the similarities between the philosophical basis of both liberal and critical legal theory, of the author\u27s inquiry highlights the cultural rift between Western theorists and the worlds of Aboriginal peoples. Working towards a world in which Aboriginal interests can be appropriately protected does not mean translating these interests into group rights within the array of rights in Canada, nor does it mean understanding these rights as mirroring group autonomy, and it also does not mean recognizing that the fluid and dynamic interests of Aboriginal peoples can be better served through progressive democratic measures. In essence, it is a matter of respecting Aboriginal peoples\u27 ability to continue to define who they are, recognizing that their potential for self-definition includes their capacity to project both their own theories and their particular forms of knowledge