07 November 2010

Creating Constitutional Space for Indigenous Peoples: Canada's Ambivalence

What follows is the English abstract for my article (to wit, "Un espacio constitucional para los pueblos indigenas: la ambivalente experiencia canadiense") originally published in Revista internacional de filosofia politica (Ejemplar dedicado a: Justicia Intercultural), 39-70 (No. 3, 2009), (for link to my English version, see below) : 

When Europeans first arrived on North America’s shores, there was present a great variety of indigenous peoples already governing themselves and their territories according to their own political institutions and laws. As Britain began to assert sovereignty over what later became Canada, as elsewhere, it was content – and indeed was committed by Imperial policy and law - to leave indigenous peoples to govern themselves and their territories largely as their forefathers had.  But as the modern Canadian state took shape, it increasingly superimposed its political institutions and laws on indigenous peoples and their territories in disregard not only of indigenous peoples, territories, political institutions, and laws but also of the earlier tradition of political and legal pluralism.  Canada’s enactment of the Constitution Act, 1982 – and particularly Section 35 which raised the aboriginal rights of aboriginal peoples to constitutional status - promised a reversal of the damaging effects of Canada’s colonialism.  Despite its almost three decade old promise, Canada has not yielded significant constitutional space to indigenous peoples, political institutions and laws.  In this paper, I explain why meaningful indigenous political and legal pluralism remains a distant dream.  I do so by way of analysis of the Supreme Court of Canada’s aboriginal rights jurisprudence.  My chief thesis is that indigenous political and legal pluralism remains a distant dream because of the Supreme Court of Canada’s discriminatory focus on indigenous people’s aboriginality and cultural difference to the near exclusion of their peoplehood and the constitutive commonalities they share with non-indigenous peoples.

Here is the English language version of the article: Creating Constitutional Space for Indigenous Peoples: Canada's Ambivalence.

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