Histories That Bind: Doctrinal Productivity and Legal Governance in Canadian Aboriginal Law

This work applies a sociological lens to juridical practice in order to illustrate the tendency of law to lag behind extra-juridical historical phenomena, and to examine how this has influenced both the occurrence of, and the nature of, moments of doctrinal productivity in Aboriginal law.In effect, historical practices of colonization in the common law world have more often than not outpaced the law which would sometimes be called upon to adjudicate their legitimacy.The result is that the juridical field has been caught in legal-normative binds and left to accommodate history through doctrinally creative means.Using other common law jurisdictions as a springboard for an examination of Aboriginal law in Canada, I argue that the judiciary has made use of the unacknowledged elasticity in the law to manage such dilemmas, and it has done so in a manner which presents this juridical work as fundamentally grounded and self-evident.In Canada, a bind developed in the late twentieth century because the law's largely unsympathetic legal positivist approach to Aboriginal title and rights became socionormatively anachronistic.Available jurisprudential adaptations for the resolution of this, however, were just as risk-laden as the bind itself.The jurisprudence presented as offering a new justice was thus also oriented toward managing risk.Two concepts that help conceptualize how that doctrinal productivity has allowed the juridical field to manage risk and navigate historical binds are injusticiability, the rendering of something unavailable for adjudication by articulating it as a political question rather than a legal question, and incommensurability, the inscribing of difference upon the Aboriginal legal Preface: A Duck, and Other Motivations While there are more than eighty cases which figure in this critical history of Canadian Aboriginal law, there is at least one pivotal case which goes uncited.In our youth, my cousin and I were charged with the illegal hunting of a duck on one of the lakes adjacent to our family farm.The farm is on the outskirts of Lake Manitoba First Nation, in the western portion of the Interlake region of Manitoba, and has been for all my life a joint venture between my grandparents, parents, uncles, and aunts.It still is for those still living.Spences, Monkmans, Pottingers, and Dumas-the maternal side of my family has roots that run deep in the region, reaching back to before Manitoba or Canada were created.Each of these family lines had signed Métis scrip in the nineteenth century, after Manitoba was brought into existence through negotiations between the Red River Métis and the Crown in right of the Dominion of Canada.(As per Nicole St-Onge's suggestion,however, we would do well to be mindful of the diversity, complexity, and fluidity of Métis identity and history.Many of the Métis in the region of Lake Manitoba and Lake Winnipegosis had close ties to the Saulteaux or Cree populations and often shared with them both language and lifestyle 1 -to this I would even add a number of shared surnames and portions of family trees.Our Spences and Monkmans, for their part, were speakers of Saulteaux, or Anishinaabemowin.)The region is somewhat northern for farming, boasting at times more forest, lake, or wetlands than open prairie or meadow.No cash crops are sown, it is mostly wild hay 1 Nicole St-Onge, "Variations in Red River: The Traders and Freemen Métis of Saint-Laurent, Manitoba," Canadian Ethnic Studies 24, no. 2 (1992).

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