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Document Type

Article

Abstract

When an Aboriginal right is asserted, questions arise about the nature of the “proper” rights-holder. Canadian jurisprudence has understood Aboriginal claims as culturally grounded (R v Van der Peet). This article tracks how this plays out, looking not just at rights-claims that directly fit the “integral to the distinct culture” test, but also at claims that might be possible should the Supreme Court allow for rights that need not be tied to specific “customs, practices and traditions” following its treatment of Aboriginal title (R v Delgamuukw). Next, this article focuses on Indigenous self-determination. This interpretive lens raises questions about why jurisprudence has been built the way it has, exploring an underlying principled approach (which treats Aboriginal rights as claims of groups accorded weight within the multicultural setting of modern liberal democracy). This analysis highlights why current jurisprudential approaches leave no room for robust forms of Indigenous self-determination. The endgame is predetermined; namely, the authority of Indigenous collectives is severely diminished. If identifying who proper rights-holders are is left to Canadian courts, we fail to engage with fundamentally important matters of Indigenous self-determination.

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