Supreme Court Law Review (2d). Volume 38 (2007), p. 595-628.
Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to "existing aboriginal and treaty rights". In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only a modest ability to evolve. However, as a brief review of the Court's reasoning reveals, this approach left much to be desired. Nevertheless, in the decade since the Van der Peet case was decided, the Supreme Court has shown mounting signs of discomfort with the test laid down there. In a series of important decisions, it has quietly initiated the process of reshaping the test's basic tenets. This process has taken place on three fronts. First, the Court has relaxed its exclusive focus on specific rights - rights distinctive to particular aboriginal groups - and allowed for the existence of generic rights - uniform rights that operate at an abstract level and reflect broader normative considerations. Second, the Court has recognized that the date of European contact is not an appropriate reference point in all contexts and looked increasingly to the period when the Crown gained sovereignty and effective control. Finally, the Court has placed ever-greater emphasis on the need for aboriginal rights to be defined by negotiations between the parties, tacitly signalling that aboriginal rights are flexible and future-oriented, rather than mere relics of the past. Here I take stock of the matter and argue that these trends presage the birth of a new constitutional paradigm, in which aboriginal rights are viewed as generative and not merely historical rights.
Slattery, Brian, "The Generative Structure of Aboriginal Rights" (2007). Articles & Book Chapters. 2262.
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