Constitutional Realism About Constitutional Protection: Indigenous Rights Under a Judicialized and a Politicized Constitution

Abstract

This article assesses the comparative effectiveness of constitutional protection of indigenous rights in Canada and New Zealand using a perspective of "constitutional realism." The two constitutions offer a useful contrast of similar systems distinguished by distinctly contrasting directions over the past 25 years. The reality of Canada's constitutional development has seen more power accrue to the judicial branch of government. The reality of New Zealand's constitutional development has seen more power accrue to the political branches of government. The article considers the reality of the behavior of these branches of government in each jurisdiction in relation to indigenous rights. It finds that the factual and cultural context in each of the two nations is crucial to assessing the constitutional implications of judicial versus political power. It suggests that judicial behaviour in both nations is influenced by politics and public opinion and calls for a more sophisticated unpacking of the modes of inter-branch dialogue that occurs "in the shadow of the people."

Keywords: Constitutionalism, Comparative Constitutions, Canada, New Zealand, Indigenous Rights