The Form and Substance of Aboriginal Rights: Assimilation, Recognition, Reconciliation

Forthcoming in N. Des Rosiers, P. Macklem & P. Oliver (eds) The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017)

27 Pages Posted: 31 Aug 2016

See all articles by Patrick Macklem

Patrick Macklem

University of Toronto - Faculty of Law

Date Written: August 23, 2016

Abstract

This essay highlights law’s participation in the colonizing projects that initiated the establishment of the Canadian constitutional order. Imperial and subsequently Canadian law deemed legally insignificant the deep connections that Indigenous peoples had with their ancestral territories, and imposed alien norms of conduct on diverse Indigenous ways of life. In doing so, law legitimated the manifold political, social and economic acts of dispossession and dislocation that collectively bear the label of colonialism. The constitutional entrenchment of Aboriginal and treaty rights in 1982 formally recognized a distinctive constitutional relationship between Indigenous peoples and Canada. The judiciary has begun to see the purpose of formal constitutional recognition to be a process of substantive constitutional reconciliation of the interests of Indigenous peoples and those of Canada. This essay argues that constitutional reconciliation can only commence by comprehending Aboriginal rights and title as protecting Indigenous interests associated with culture, territory, treaties and sovereignty in robust terms – terms, if met, which will have profound structural consequences for the constitutional relationship between Indigenous peoples and Canada.

Keywords: Aboriginal rights, Aboriginal title, assimilation, colonialism, Constitution of Canada, Crown sovereignty, Crown title, Indigenous sovereignty, recognition, reconciliation

JEL Classification: K10

Suggested Citation

Macklem, Patrick, The Form and Substance of Aboriginal Rights: Assimilation, Recognition, Reconciliation (August 23, 2016). Forthcoming in N. Des Rosiers, P. Macklem & P. Oliver (eds) The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017), Available at SSRN: https://ssrn.com/abstract=2828307

Patrick Macklem (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-3873 (Phone)
416-978-7899 (Fax)

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
234
Abstract Views
1,207
Rank
237,449
PlumX Metrics