Weaving, Sawing and Houses: A Trans-Systemic Aboriginal Rights Framework

Abstract

Chief Justice Lamer has stated that the doctrine of Aboriginal rights exists and is recognized by section 35(1) of the Canadian constitution because of the “one simple fact” that Aboriginal peoples were already here, living in what became Canada when Europeans arrived. As a result, the purpose of Aboriginal rights is to reconcile the pre-existence of Aboriginal peoples with the Crown. Yet both the conception of reconciliation and the test Lamer C.J. developed to fulfil the purpose underlying s. 35(1) are fraught with numerous problems and contradictions. This thesis adapts the relational approach in anthropology to create a trans-systemic legal framework for Aboriginal rights that allows a more equitable reconciliation than that advanced by Lamer C.J. and avoids the pitfalls of the courts’ current approach.

I begin by exploring how the Court’s conceptions of society and culture, in particular, are the source of the problems in their approach to Aboriginal rights. Focusing in on the Court’s use of “culture,” I then discuss the intellectual foundations of the notion and go through the three phases of the test for Aboriginal rights showing how those foundations have influenced it and the dilemmas and barriers “culture” creates for both the courts and Aboriginal claimants.

One of my major, continuing criticisms of the Court’s approach is that by focusing on culture, the lives and perspectives of Aboriginal claimants and their ancestors are marginalized, and so my proposed trans-systemic framework is based on “re-enlivening” Aboriginal rights. By focusing on life, rather than culture, I argue that this more ably meets the goals and purposes of s. 35(1). This refocusing also results in a different relationship between Aboriginal peoples, the Court and the Crown, and I conclude this thesis with a discussion of how the convergence of Aboriginal legal systems and the common law in Canada may occur.