Aboriginality, existing aboriginal rights and state accommodation in Canada
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ABORIGINALITY, EXISTING ABORIGINAL RIGHTS AND STATE ACCOMMODATION IN CANADA: ABSTRACT The central focus of this dissertation is the relationship between aboriginality, aboriginal rights and state accommodation in Canada. The work considers how the existence of a plurality of conceptions of aboriginality impacts the capacity of aboriginal rights to protect and accommodate this collective identity. This dissertation takes the position that aboriginal rights, as they are currently constructed in Canada, cannot account for the existence of this definitional multiplicity, and so impose serious limits on the degree to which aboriginality is accommodated and protected by the state. This case is built by looking at Supreme Court cases that deal with Section 35(1) of the Constitution Act, 1982. The investigation contained herein examines the written legal submissions of the aboriginal and non-aboriginal participants in these cases, as well as the Court’s decisions, in an effort to trace the various articulations of aboriginality put forward by the parties. The dissertation demonstrates that, even though there is a multiplicity of conceptions of aboriginality – in other words, the aboriginal litigants, the provinces, the federal government and the Supreme Court justices advance different and often competing conceptions of aboriginality – aboriginal rights are constructed to protect and accommodate a single, particular vision of this collective identity. Moreover, this version of aboriginality does not coincide with the version of this collective identity advanced by the aboriginal litigants themselves. Consequently, the work in this dissertation argues that aboriginal rights fail to accommodate and protect aboriginal peoples’ collective identities and pose a substantial threat to these identities.
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