Confounding Concepts: The Judicial Definition of the Constitutional Protection of the Aboriginal Right to Self-Government in Canada
Bibliographic record
Abstract
The content of the constitutionally protected Aboriginal right to seIf-government in Canada is currently determined by the approach established in R. v. Pamajewon. This case applied the test for the constitutional protection of Aboriginal rights as established in R. v. Van der Peet. The test holds that only those practices, customs and traditions that are continuous with and integral to the distinctive culture of an Aboriginal community as it existed prior to European contact will attract constitutional protection.This article examines how the Van der Peet approach is difficult to apply in practice and leads to an indeterminate definition of constitutional protection for Aboriginal self-government rights. The Van der Peet test is particularly indeterminate when applied to self-government rights. Consider self-governance and law making as pre-contact practices, customs or traditions. At their most general, self-governance must have been integral to all pre-contact communities. The power-conferring rules that were customary in historic Aboriginal communities likely came with no evidence of limits to jurisdiction. Moreover, the recognition of customary rules also raises issues about whether any government infringement of the right of Aboriginal communities to set their own boundaries would be unconstitutional.The article concludes by looking briefly at the American approach to the analogous issue and how it avoids the problems with the Pamajewon approach.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.005 | 0.013 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.003 |
| Science and technology studies | 0.018 | 0.023 |
| Scholarly communication | 0.011 | 0.003 |
| Open science | 0.003 | 0.003 |
| Research integrity | 0.004 | 0.006 |
| Insufficient payload (model declined to judge) | 0.002 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".