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- Title
Undoing the Colonial Double-Bind: Interpretation and Justification in Aboriginal Law.
- Authors
Nichols, Joshua; Swiffen, Amy
- Abstract
Aboriginal law in Canada is caught in a colonial double-bind. On the one hand, courts have acknowledged the pre-existing sovereignty of Indigenous peoples as the source of section 35 rights. On the other hand, the courts also nd that Crown sovereignty is bundled together with legislative power and underlying title. ! e latter is treated as a non-justiciable presumption. ! is article aims to provide the judiciary with a way to deal with the double bind using the legal tools they already have at their disposal. We begin by contrasting two interpretive approaches courts use to legally characterize the constitutional relationship between the Crown and Indigenous peoples. We label these approaches as narrow and adaptive. We argue that by embracing an adaptive reading of the constitutional relationship, the courts can help clear the way for an inclusive form of treaty federalism that allows a culture of justi cation to " ourish across diverse legalities in Canada.
- Subjects
CANADA; LEGAL justification; LEGISLATIVE power; INDIGENOUS peoples; JUSTICE administration
- Publication
Review of Constitutional Studies, 2023, Vol 27, Issue 2, p41
- ISSN
1192-8034
- Publication type
Article