Constitutional conflict and the development of Canadian aboriginal law
This paper argues that aboriginal rights in Canada have been greatly affected by 19th Century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces, especially Ontario, necessarily impacted aboriginals on the ground while colouring how their legal claims were recognized and implemented. The judicial decisions regarding these disputes the courts assumed colonialist and essentializing assumptions about the nature of indigenous life, settler-indigenous relations and state sovereignty which led to a depreciation of the legal rights and aboriginal sovereignty historically evidenced in state-aboriginal interaction from the first English settlement of North America. The result was that prior to 1982, the legal efficacy of treaty rights, the scope of aboriginal rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty was severely circumscribed or non-recognised in law. Subsequently, the rights now protected under sec. 25 of the Constitution Act 1982 are more restricted than the text of the section would suggest.