Challenging the monologues: toward an intercultural approach to aboriginal rights
University of British Columbia
Master of Laws - LLM
The author critiques various strands of liberal moral and political theory as they relate to Aboriginal rights. In particular, he rejects the formulation of liberal theory by philosopher Will Kymlicka, as failing to respond to the unique realities and perspectives of First Nations. He then draws on the insights of philosophers Charles Taylor and James Tully to argue for a new approach to Aboriginal rights, premised on principles of dialogue, recognition and the willingness to engage in an "intercultural journey" in which a middle ground of law, informed by Canadian and indigenous norms, is created. In chapters two through four, the author employs Wittgenstein's "perspicuous contrast" in order to reveal the dialogical basis of Gitksan and Wet'suwet'en legal and political structures, as well as to reveal the dominant role that "monologues" play in the Canadian law of Aboriginal rights. He identifies three monologues: discovery, sovereignty and the "authentic Indian," by which Canadian law marginalizes and subjugates First Nations and their legal systems. Such monologues depend for their coherence and success upon Aboriginal silence. In chapter five, the author argues that notwithstanding the persistence of monologues, Canadian law can be open to dialogue and to the broadening of understanding that is required for the construction of an intercultural legal middle ground. He issues a strong call for the legal system to turn to Aboriginal law as a major source for the middle ground, and argues that doing so will help preserve the ability of First Nations to participate in the intercultural dialogue in their own voices and ways of knowing, which is essential to the successful deployment of the approach argued for in chapter one. The author concludes that the middle ground will best be achieved through treaties, backed by an intercultural legal duty on all parties to negotiate in good faith. He also argues that a rethinking of sovereignty is necessary, in order to preserve the ability of First Nations to participate in intercultural dialogue secure in their autonomy and self-determination. To that end, he argues that courts can provide a useful "backdrop" to the intercultural middle ground, by continuously identifying intercultural legal norms which respect bedrock principles of each community's legal system in order to preserve the autonomy and self-determination of each.
Intercultural communication; Indigenous peoples--Legal status, laws, etc.--Canada
Law, Peter A. Allard School of