Prisons of Culture: Judicial Constructions of Indigenous Rights in Australia Canada and New Zealand

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Forthcoming, Canadian Bar Review

The article examines the manner in which High Courts in Australia, Canada and New Zealand define indigenous rights in relation to the traditional laws, customs, and practices of pre-contact indigenous societies. One of the great disappointments of this interpretive framework has been its deployment as a means of limiting or denying indigenous rights claims when the laws, customs or practices which are the subject of, or which govern the right in question, have been substantially changed, interrupted or disrupted – regardless of the source of the alteration in question. The article argues that this cultural continuity model of recognition is both unreasonable and discriminatory, and not a particularly effective means of structuring a jurisprudence of state-indigenous reconciliation.

Representing Indigenous Self-determination

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(2008) “Representing Indigenous Self-determination.” University of Toronto Law Journal  LVIII(2): 185-216.

Discussions of indigenous self-determination have traditionally shown little enthusiasm for the idea of indigenous engagement in electoral politics – and for good reasons. Self-determination is usually understood as a means of gaining distance from, rather than inclusion in, state institutions. Legislative bodies are regarded with particular suspicion, even hostility, evoking memories of historic disenfranchisement or strategies of electoral inclusion linked to assimilation and the loss of  indigenous rights. As a means of advancing indigenous objectives, moreover, electoral representation seems at best to offer only a token presence in institutions dominated by non-indigenous majorities, and at worst looks like a strategy for pacifying indigenous representatives while energy and resources are diverted away from the goal of indigenous self-government. In spite of these reservations, this article defends the view that electoral politics can be viewed as part of a broader strategy for advancing indigenous self-determination by targeting a variety of complementary access points to political power. The argument is grounded in a relational model of self-determination that emphasizes the importance of self government and the need for modes of shared decision making capable of governing the complex interdependence characteristic of state–indigenous relationships today. While it is important to acknowledge its many shortcomings, much of the opposition to the electoral route to indigenous self-determination is based on unrealistic expectations regarding what this form of political voice is capable of delivering. Hence, one of the objectives of this article is to clarify the various functions that indigenous electoral representation can and cannot be expected to perform.

Shaping the Constitutional Dialogue on Federalism: The Canadian Supreme Court as Meta-Political Actor

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(2005) “Shaping the Constitutional Dialogue on Federalism: The Canadian Supreme Court as Meta-Political Actor,” with James Kelly. Publius: The Journal of Federalism 35, 217-43.

This article challenges the view that the Supreme Court has become the predominant authority on the constitutional distribution of rights and entitlements among governments in the Canadian federation. By assuming this position of constitutional supremacy, critics continue, the Court has usurped key policy functions that belong to political actors, a move that has undermined democratic governance in Canada. Against this view, we argue that the management of Canada’s federal constitutional architecture is a responsibility the courts share with key political actors. We describe the Court’s role as meta-political, whereby the Court’s federalism jurisprudence supplements rather than subverts the constitutional role of political actors. We develop our thesis in relation to two subnational constituencies with a distinctive constitutional status in Canada: the province of Quebec and Aboriginal First Nations.

Looking Forward Without Looking Back: Jean Chrétien’s Legacy for Aboriginal-State Relations

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(2004). “Looking Forward Without Looking Back: Jean Chrétien’s Legacy for Aboriginal-State Relations,” Review of Constitutional Studies 9, Special Issue: The Chrétien Legacy, 151–69.