Title: Rights-based judicial review and subtantive equality for aboriginal peoples: The case of Canada
Abstract:In their attempts to obtain differential treatment under the law, Aboriginal peoples are increasingly choosing rights-based judicial review as a promising alternative to political negotiations. Howeve...In their attempts to obtain differential treatment under the law, Aboriginal peoples are increasingly choosing rights-based judicial review as a promising alternative to political negotiations. However, it remains to be seen to what extent, and under what conditions, rights-based judicial review will live up to the expectations Aboriginal people have vested in choosing this route. In order to measure the effectiveness of rights-based judicial review for Aboriginal peoples, this article proposes to study Canadian case law. More specifically, it reviews the constitutional jurisprudence of the Supreme Court of Canada pertaining to five key Aboriginal rights issues: fishing and hunting rights, institutional representation, welfare policies, land rights and self-government. It also considers how this jurisprudence was received and applied by governmental authorities. The article reveals that the constitutional recognition of specific Aboriginal rights, which go beyond fundamental political and civil rights brings about positive political change for Canada's Aboriginal communities, even though these rights have been given a narrow interpretation. However, in this climate of positive political change, the inability for Aboriginal peoples to obtain self-government through judicial review emerges as a clear problem. The article comes to the conclusion that institutional nation-building objectives may limit judicial review's potential for recognising a deep level of substantive equality for Aboriginal peoples.Read More
Publication Year: 2013
Publication Date: 2013-01-01
Language: en
Type: article
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