04 Jan Culture and the Courts: A New Direction in Canadian Jurisprudence on Aboriginal Rights?
This article explores the implications of changes in Canadian Supreme Court jurisprudence on Aboriginal rights since the 1990s. While recognizing the Court’s valuable contributions in the period from Calder to Sparrow, I argue that the 1996 Van der Peet decision deals a serious blow to the legal status of Aboriginal rights, particularly the right to self-government. The standard of legal recognition established in Van der Peet constitutes a decided step back from the Court’s prior jurisprudence, and is insufficient as a means of securing its stated ends: the survival and well-being of Aboriginal communities and cultures. I conclude by arguing that the Court can repair the recent damage it has done to Aboriginal rights by revisiting the concept of the quasi-national status granted to Aboriginal peoples within the context of the sui generis Crown-Aboriginal relationship.
(2001). “Culture and the Courts: A New Direction in Canadian Jurisprudence on Aboriginal Rights?” Canadian Journal of Political Science 34, 109-29.