Ghost dancing at the Supreme Court of Canada: indigenous rights during the first quarter century of s.35.of Canada's constitution act, 1982
Titre de la page de titre additionnel: Ghost dancing at the Supreme Court of Canada : indigenous rights during the First quarter century of s.35.of Canada's Constitution Act, 1982.
Many people believe that Canada became fully decolonized in 1982 with the "patriation" instituted by the Constitution Act, 1982, whose s.35 (1) explicitly recognized and affirmed "existing Aboriginal and treaty rights". Yet, a quarter century later, Indigenous critics continue to complain that their rights are being denied by the Supreme Court of Canada. This study has approached such questions by drawing on international law to establish legal definitions for "colonialism" and "postcolonialism". In this optic, it becomes clear that there has been a significant change in Euro-Canadian norms during the past century. Colonial concepts, like the English jurist John Austin's definition of "law" as "command" have been superseded by the ideal of informed, popular consent, yet modes of conduct that are consistent with the colonial paradigm persist. According to Kuhn's theory of scientific revolutions this is predictable because changes from one paradigm to another are normally characterized by intensified assertions of the impugned orthodoxy and no change is complete until new models and procedures have emerged to replace established habits. In order to determine where the Supreme Court of Canada actually stands in relation to the decolonization process, Part I of this study examines the nature of paradigmatic function, including the metaphoric construction of language. It then reviews the colonial phenomenon, the emergence of decolonization in international law and postcolonialism to define the colonial and postcolonial paradigms in terms of specific indicia that can be used to classify institutional performance. Part II adapts this analytical framework to the specific circumstances of judicial decision making and applies it to the reasoning of over 60 Supreme Court of Canada cases concerned with section 35 (1) of the Constitution Act, 1982. This dual colonial/postcolonial analysis makes it possible to identify some of the ways in which colonial metaphors and modes of thought have persisted during the past quarter century despite the Court's firm commitment to postcolonial ideals. Though the judges themselves are aware of some of the institutional limitations that constrict their ability to validate Indigenous rights, many of the concepts that structure their reasoning induce them to perpetuate the colonial paradigm. Further reflection on the structure of our rational processes and on the problems predictably associated with paradigm change might make it easier for judges, practitioners and Indigenous peoples to develop the agreements that are necessary to implement the egalitarian ideals ascribed to by all.
Advisor:Noreau, Pierre; Morin, Michel
Source Type:Master's Thesis
Date of Publication:07/01/2007