The intersection of aboriginal law and aboriginal rights in the common law frameworks of Canada and Australia


University of British Columbia

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Master of Laws - LLM




This thesis is concerned with how Aboriginal law is accommodated within the common law frameworks of Canada and Australia (and thereby producing "Aboriginal rights" within those frameworks). Chapter one is a brief introduction to the topic and the methodology employed. The methodology justifies the approach and methods of this thesis that include the use of Michel Foucault's work, cultural studies and critical human geography. Chapter two is a summary of liberal rationales and arguments for Aboriginal rights. It is also a critique of liberal practice as it pertains to the discipline of law. It is argued that it is not enough to accommodate the substance of Aboriginal law in liberal forms of law, but rather it is necessary to accommodate the substance and form of Aboriginal law. Chapter three is a summary and critique of legal pluralism. It is argued that legal pluralism as traditionally conceived is not capable of providing a suitable model. However, this is not due to the concept of legal pluralism, but because of how law has been conceived in the states of Canada and Australia. Chapter 4 provides an historical account for the issues posed in chapter 3. It is argued that the merger, or assumed merger, of four spaces (sovereign space, national space, economic space and juridical space) has made it very difficult to argue for the notion of legal pluralism within Canada and Australia. However, this is not to say that the hegemony of dominant discourse has been complete. Indeed, there have been marked changes since the Second World War. It is suggested that the spatial dimensions of this change have been ignored. Chapter 5 provides an analysis of why the spatial dimensions to Aboriginal law and Aboriginal rights are important. It is argued that making of an Aboriginal juridical space is underway and that a more post-modern conception of law utilizing a re-configured notion of legal pluralism may provide further insights into processes involved the settlement of land claims (in Canada) and Aboriginal land rights (in Australia), and also the notion of Aboriginal self-government in Canada.

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