The emerging equality paradigm in Aboriginal law
The existing “rights” paradigm in Aboriginal law accepts Crown sovereignty claims grounded in ethnocentric conceptions of terra nullius and discovery, and views Aboriginal rights as arising out of prior occupation. The Supreme Court of Canada has shaken this paradigm by characterizing Crown sovereignty as merely de facto until reconciled with Aboriginal sovereignty and legitimated by a treaty, by developing the duty to consult, and by characterizing reconciliation as a process that is part of a generative constitutional order. The moves the Court toward a new paradigm rooted in the principle of the equality of peoples in which treaties provide a framework for sharing sovereignty. As part of the Canadian federation, Aboriginal sovereignty can strengthen Canada’s territorial integrity and contribute to Canada’s economic development. In the past, courts allowed the “act of state” doctrine to shield Crown assertions of sovereignty from scrutiny. This doctrine protects Canada’s territorial integrity, but does not shield the Crown’s actions from legal and constitutional scrutiny. The fundamental constitutional principle of rule of law and the de facto doctrine will protect interests that relied on assumptions of Crown sovereignty that lacked constitutional legitimacy. The transformation in the fundamental principles of Aboriginal law has parallels to Thomas Kuhn’s description of a paradigm shift in the natural sciences. The rights paradigm is in a “crisis” with moral and practical dimensions. It is incommensurable with the equality paradigm, and therefore the choice of paradigms will depend on normative criteria. Fundamental principles of the Canadian constitution, international standards of human rights and the perspectives of growing numbers of practitioners in the field that are of Aboriginal ancestry are all forces that will complete the shift to the equality paradigm. An equality paradigm will result in the abandonment of some Aboriginal law doctrines, and the modification of others. Aboriginal title is inconsistent with an equality paradigm because it assumes the legitimacy of the Crown’s claims to sovereignty, gives the Crown a superior title, and limits Aboriginal nations to a “burden” of only limited and subordinate rights. The fiduciary relationship rooted in the “honour of the Crown” will grow into a non-hierarchical relationship with reciprocal obligations. Decisions of courts can play a supporting role, but only negotiations and treaties can build a genuine partnership, effective and equitable sharing of sovereignty and ultimately reconciliation between Aboriginal and non-Aboriginal peoples in Canada.
DegreeMaster of Laws (LL.M.)
DepartmentCollege of Law
ProgramCollege of Law
CommitteeZlotkin, Norman; Poitras, Marilyn; Harris, Douglas C.
Copyright DateMarch 2011
de facto doctrine
rule of law
honour of the Crown
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