Constitutional Realism about Constitutional Protection: Indigenous Rights under a Judicialized and a Politicized Constitution
constitutional law, indigenous, aboriginal, rights, Canada, New Zealand, comparative law, government, public opinion
This article assesses the comparative effectiveness of constitutional protection of indigenous rights in Canada and New Zealand using a perspective of "constitutional realism". The two constitutions offer a useful contrast of similar systems distinguished by distinctly contrasting directions over the past twentyfive years. The reality of Canadas constitutional development has seen more power accrue to the judicial branch of government. The reality of New Zealand's constitutional development has seen more power accrue to the political branches ofgovernment. The article considers the reality of the behaviour of these branches of government in each jurisdiction in relation to indigenous rights. It finds that the factual and cultural context in each of the two nations is crucial to assessing the constitutional implications ofjudicial versus political power It suggests that judicial behaviour in both nations is influenced by politics and public opinion and calls for a more sophisticated unpacking of the modes of inter-branch dialogue that occurs "in the shadow of the people".
Matthew SR Palmer, "Constitutional Realism about Constitutional Protection: Indigenous Rights under a Judicialized and a Politicized Constitution" (2006) 29:1 Dal LJ 1.