Indigenous Peoples, Constitution Act, s 35(1), Canada, Jurisprudence, Stereotyped Aboriginality, Aboriginal Law, Critique, Common Law
In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous person was to be deemed economically assimilated. Before such legislation and policies were repealed, however, the tests crossed into the common law and have since been read into legislation. As a result, the doctrine of precedent has reinforced and continually renewed this oppressive discourse to the present day. This article is, in essence, a call to critically engage and confront the assumptions that underlie our rubrics of analysis.
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Constance MacIntosh, "From Judging Culture to Taxing 'Indians': Tracing the Legal Discourse of the 'Indian Mode of Life'" (2009) 47:3 Osgoode Hall LJ 399.