The Judicial Conceptualization of Culture after Delgamuukw and Van der Peet
- Autores: Michael Ash
- Localización: Review of constitutional studies = Revue d'études constitutionnelles, ISSN 1192-8034, Vol. 5, Nº. 2, 2000, págs. 119-137
- Idioma: inglés
- Enlaces
-
Resumen
The author examines the current Canadian approach to the resolution of claims concerning Aboriginal rights and title. Discussion focuses on the Canadian law as enunciated by the Supreme Court of Canada in R . v. Van der Peet and Delgamuukw v. British Columbia, as well as its historical development through selected Canadian and English jurisprudence.
The author finds the central feature of the Supreme Court of Canada's approach to be the recognition of Aboriginal rights and title on the basis of "cultural distinctiveness." However, it is argued that the approach utilizes antiquated logic, which conflicts with contemporary anthropo-logical conceptions of culture. Furthermore, the author argues that the Supreme Court of Canada's emphasis on cultural components detracts from political issues surrounding Crown sovereignty in the context of Aboriginal rights. Consequently, the current Canadian approach to Aboriginal rights and title may lead to future results that are unpredictable and inconsistent.
Finally, the author suggests an alternative framework in which claims regarding Aboriginal rights and title may be resolved. Specifically, it is contended that the equitable resolution of Aboriginal claims may ultimately require the recognition of political rather than cultural rights.
