Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference

by Michael Asch

In the last two decades there has been positive change in how the Canadian legal system defines Aboriginal and treaty rights. Yet even after the recognition of those rights in the Constitution Act of 1982, the legacy of British values and institutions as well as colonial doctrine still shape how the legal system identifies and interprets Aboriginal and treaty rights. The eight essays in Aboriginal and Treaty Rights in Canada focus on redressing this bias. All of them apply contemporary knowledge of historical events as well as current legal and cultural theory in an attempt to level the playing field. The book highlights rich historical information that previous scholars may have overlooked. Of particular note are data relevant to better understanding the political and legal relations established by treaty and the Royal Proclamation of 1763. Other essays include discussion of such legal matters as the definition of Aboriginal rights and the privileging of written over oral testimony in litigation.

300 pages, Paperback

First published March 17, 1997

Reviews

[Steve · Rating 4 out of 5]

I should begin by saying I just picked this book up from the library and I am not studying this in any course, so I am looking at this through an uninformed, outsider perspective.

Culture and Anarchy in Indian Culture by Chamberlin

It was an interesting essay, I so rarely get to hear about Matthew Arnold's ideas on culture. I can accept the premise that the oral and written histories are different and that to focus only on the written aspect of the treaties is to miss out on a lot of the meaning. I also really liked the idea of separating cultural laws from sovereignty, although I did think that the essayist was making an assumption on the part of the First Nations.

I guess it created this weird dynamic of talking about the intricacies of oral traditions through the written word, a medium which can't convey the oral. The entire essay felt like an assumption simply because they talked about oral traditions, but couldn't share them, which is understandable, but it does create this feeling of indirectness. An essay like this should be given as a speech.

Challenging Assumptions by Bell and Ashe

The description of a legal theory of culture was very interesting. It reminded me of the essay, Courting Controversy: Strategic Judicial Decision Making by Knopff, Baker, and LeRoy. It was well written although it did require a knowledge on judicial decisions which I did not have. However, the link between evolutionary societal theory and Canadian judicial decisions, and the way that justices pick precedents was well explained. Overall, very informative and well written.

Culturally Appropriate Models in Criminal Justice Applications by LaRocque

A very persuasive article, very well written. Happy to have read it after the Bell and Ashe article since they also talk about drawing upon international precedents, to follow traditional sources while drawing from new contemporary sources. The concept of the white washing of native judicial rulings by a desire to create a cultural difference from Canadian criminal law is brilliant. The focus on the victimhood of women and children that this engenders was very impactful.

Impact of Treaty 9 on Natural Resource Development by Macklem

An interesting article that builds upon the articles by Chamberlin, Bell and Ashe. The fact that it is continually building upon precedent, while also considering the intent behind negotiators on behalf of both the First Nations and the Canadian Government, was a great combination. I also found it interesting the judiciary acts upon the assumption that the arguments used by government to get the First Nations to sign on to the treaties, were done in good faith. In other words, those arguments are used to look into the intent of the signers. Very interesting. I'm always concerned about how much of the knowledge is build upon direct or indirect resources, but it was a good read.

The Meaning of Aboriginal Title by McNeil

A good article. The main take away for me was that most modern judicial interpretations of Aboriginal title are rooted in time and does not allow for growth. It could lead to cultural assimilation, which seems a realistic consequence.

Wampum at Niagara by Borrows

I find it fascinating, and influential, that a natural understanding of treatises, by both participants, is a valid interpretation. I have to acknowledge that I came into this book with a bias against oral histories, which I have to rethink. The aboriginal understanding of the treatises is especially important given the cultural differences. The effect that this has had/will have on judicial decisions on aboriginal relation questions will be great.

Understanding Treaty 6: An Indigenous Perspective by Venne

I'm pretty sure I read this article years ago, it sounds so familiar. I thought this was a great article. I loved the focus on the subjectivity of knowledge, in that an oral tradition allows for different perspectives. A written document is just one perspective, which pretends at objectivity. At least oral histories acknowledge multiple perspectives and describe the creation process, unlike the treatises. This was the article that made me more open to oral traditions as historical evidence.

Affirming Aboriginal Title by Asch and Zlotkin

This was a good article to end the collection with since it builds on so many of the other articles. I should also give credit to the first few article for being the foundation of this collection. I thought this article was very basic, but one idea I did like was that by sharing land through reaffirming aboriginal title, Canada gains historical legitimacy. It is a great way to be able to place us in a point of time, rather than simply as new arrivals who extinguished everything we touched.

[River]

i read this for a project i had to do in my Canadian history course