Legal pluralism and hybridity in Mi’kma’ki and Wulstukwik, 1604-1779: a case study in legal histories, legal geographies, and common law Aboriginal rights

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dc.contributor.author Hamilton, Robert
dc.date.accessioned 2022-01-10T17:54:33Z
dc.date.available 2022-01-10T17:54:33Z
dc.date.copyright 2021 en_US
dc.date.issued 2022-01-10
dc.identifier.uri http://hdl.handle.net/1828/13683
dc.description.abstract This dissertation is shaped by a concern with how the doctrine of Aboriginal and treaty rights in Canada can develop to meaningfully recognize Indigenous self-determination. A number of inherited concepts (e.g. law, sovereignty, state, jurisdiction, and territory) have constrained legal and political imaginations and supported a legal apparatus that confines Indigenous peoples to a subordinate place in the constitutional order. Drawing on scholarship on common law Aboriginal rights, legal pluralism, legal geography, legal history, and political theory, this work develops a novel legal and theoretical critique by historicizing the concepts courts have relied on in mediating Crown-Indigenous relations and demonstrating that the retrospective application of these concepts, which supports the subordination of Indigenous peoples in the present day, is empirically suspect. Using Canada’s Maritime provinces as an example, this is accomplished by describing in detail the legal pluralism that characterized the 17th and 18th centuries in the region, particularly how social and legal spaces were constituted by a plurality of legal and normative orders. By analyzing the territorial reach and subject matters of eight distinct legal systems that were operative in the region during this period, this work demonstrates that absolute jurisdiction through fixed territorial boundaries has never been an accurate way to describe Crown, or later state, authority in the region. Rather, the region’s legal spaces were constituted by a plurality of overlapping, entangled, and hybrid legalities that structured territorial jurisdiction in discrete and unique ways. This challenges Aboriginal rights doctrine that too often relies on unstated presuppositions about the effect of Crown assertions of sovereignty in retroactively applying conceptions of territorial jurisdiction that are tailored to meet the requirements of the contemporary nation-state and have the effect of minimizing Indigenous claims and supporting the unilateral authority of the state. The final chapter applies this legal-historical analysis to the present-day through an analysis of recent treaty fishing rights disputes in Mi’kma’ki/Nova Scotia. en_US
dc.language English eng
dc.language.iso en en_US
dc.rights Available to the World Wide Web en_US
dc.subject Aboriginal Law en_US
dc.subject Indigenous Law en_US
dc.subject Legal History en_US
dc.subject Treaty Rights en_US
dc.title Legal pluralism and hybridity in Mi’kma’ki and Wulstukwik, 1604-1779: a case study in legal histories, legal geographies, and common law Aboriginal rights en_US
dc.type Thesis en_US
dc.contributor.supervisor Borrows, John
dc.degree.department Faculty of Law en_US
dc.degree.level Doctor of Philosophy Ph.D. en_US
dc.description.scholarlevel Graduate en_US

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