Published In

Windsor Yearbook of Access to Justice

Document Type

Article

Publication Date

2005

Subjects

Colonialism; Aboriginal law; Indigenous peoples; Aboriginal peoples; Self-determination; Governance; Sovereignty

Abstract

Throughout Canada's 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's 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's colonial identity.

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