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
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: Suggested Citation