The Political Theory of Aboriginal Rights Law in Canada: Prospects for Reconciliation

Abstract

While the thesis will proceed with a step by step development of the core arguments from the political theory literature, followed by a detailed analysis of corresponding issues in the jurisprudence, it may help the reader to have a summary statement of the thesis argument from the very start. The core argument is that the Canadian approach to constitutionalism reflected in the model centered on Section 35 of the Constitution Act, 1982, provides a framework, a methodology and a model for practice that could lead the Crown and aboriginal peoples within Canada towards the elusive goal of reconciliation. This framework, rooted firmly in the obligations of the nation-state, is materially different from most normative and legal literature that tends to gravitate to positions that emphasize either the lack of legitimacy of the nation-state or the lack of legitimacy of efforts to recognize aboriginal claims. In other words, this thesis develops an argument for the practical utility of a “middle-ground” approach. This middle-ground approach will depend on a novel interpretation of the foundational methodology adopted by the Supreme Court of Canada to animate Section 35, a particular interpretation of the “nested” relationship between Canadian domestic law, international law and indigenous legal systems and a development of the embryonic emphasis placed on dialogical processes to resolve deep disagreement about fundamentally disparate ontological and epistemological assumptions about attachments to land. In other words, the thesis attempts to develop a constitutional framework to support a practical blueprint to achieve a morally and politically defensible conception of aboriginal rights. Rather than simply defending the constitutional status quo, the thesis will develop what is intended to be a unified approach to Section 35 that will point the way towards several crucial additions to the jurisprudential framework so it can enable the deep deliberation that lies at the very heart of the best aspirations of Canadian constitutionalism.