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  • Indigenous peoples’ law, while suppressed and fractured by colonial suppression and misrecognition, is an animating source of authority throughout the country. Unfortunately, the Supreme Court’s view of the historical nature of Aboriginal rights has prevented Indigenous norms from enjoying broader force. 

    The Court’s distinction between pre- and post-contact practices of Indigenous peoples should be erased from the country’s constitutional law. Law should not be equated with history, particularly when we live (and lived) in a colonial context. To facilitate the recognition of contemporary Indigenous governance the temporal priority of Indigenous peoples’ “first-ness” should be nuanced. The United Nations Declaration on the Rights of Indigenous Peoples points towards a reorientation in Canada’s jurisprudence dealing with Aboriginal rights, and the rejection of pre and post-colonial distinctions in Canadian law.

Coop Droit de Université de Montréal