Law, Theory and Aboriginal Peoples

To some Aboriginal people domestic Canadian law is alien and oppressive. In this paper one source of this perception is explored, the argument digging below the surface of the law to layers of theory and world-view which conflict with the sensibilities of Aboriginal peoples. I argue that a liberal vision underlies and animates the law, and that while grounded in this vision, the law cannot protect the interests of Aboriginal peoples. In analyzing how the law approaches the protection of Aboriginal interests, an alternative liberal argument focused on group autonomy is also considered. Examining the debate between liberal theorists about how best to protect Aboriginal interests reveals the threat liberalism in general presents to Aboriginal peoples. In adhering to deeper shared visions about the self, the community and the state, and in engaging in the shared mission of transposing these visions onto the lives and worlds of Aboriginal peoples, liberal theorists reveal liberal theory as one source of the perception of oppression. The perception that the law is oppressive ultimately issues, however, from the law’s grounding in a particular intellectual tradition. In exploring an approach highly critical of liberal legal theory, in tracing connections and commonalities between the philosophical groundings of both liberal and critical legal theory, this line of inquiry highlights the cultural divide between Western theorists and the worlds of Aboriginal peoples. Working towards a world in which Aboriginal interests can be appropriately protected does not mean translating these interests into group rights so they can be fit into the matrix of rights in Canada, just as it does not mean understanding these rights as reflective of group autonomy, and does not mean recognizing that the “fluid and dynamic” interests of Aboriginal peoples can be better served through progressive democratic measures. Rather it is essentially a matter of respecting the ability of Aboriginal peoples to continue to define who they are, a potential for self-definition which includes their capacity to project both their own theories and their particular forms of knowledge.

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