Aboriginal rights, reconciliation and respectful relations

Date

2010-05-26T22:26:32Z

Authors

Kennedy, Dawnis Minawaanigogiizhigok

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Abstract

Several ways of understanding aboriginal rights surfaced in the wake of section 35 of the Constitution Act, 1982, which recognizes and affirms aboriginal and treaty rights. During my Masters’ studies, I journeyed these ways, propelled by a troubling dream that came to me while I was in law school. The dream prompted me to reconsider rights and to choose my words with caution and with care. And yet when I thought of what my dream might be trying to tell me, I was afraid. I was afraid to question rights, especially aboriginal rights. There seemed to be so much of me tied up in the cause and construction of aboriginal rights. All through law school I wanted there to be an answer I could find and defend. I wanted there to be a right way to think about aboriginal rights, something that would guarantee me a protected space to be. I wanted to continue pursuing that protection. And yet, there was my dream. Among the Anishinabe, dreams are considered gifts, for they lead us toward our greatest laws and teachings. Though I was loath to question aboriginal rights, I was not willing to question my dream. So I readied myself, preparing to put aboriginal rights into question. To my thesis, I brought all the learning I had done in and outside of law school. I also brought a question to guide me. To give me courage, I carried my faith in who I am, as Anishinabe. Knowing for all that I am Dawnis Kennedy, I am also Minawaanigogiizhigok, I set out to see what I would see. The question that led me through understandings of section 35 is this: do recent understandings of aboriginal rights within Canadian law enable Canadian courts to transform adverse relations with indigenous legal orders? The answer I found is, not yet. The interpretations of aboriginal rights I encountered have effected considerable change within Canadian law. However, my journey shows more is needed before the aboriginal rights framework can support respectful engagements with indigenous law. Indeed, without fundamental reorientation, I believe aboriginal rights jurisprudence will further entrench, rather than transform, Canadian law’s adverse relations with indigenous peoples. I would ask judges, lawyers, legislators, and all who shape Canadian law, to break away from attempts to reconcile indigenous and Canadian law within Canadian legal orders and reorient themselves towards fostering respect between indigenous and Canadian legal orders. In writing my thesis, I found cause for my concern with rights. And yet, this is not all that I found. Also, I found myself able to engage the world beyond the protective limits aboriginal rights provide. I found the ability to trust in another form of law, Anishinabe inaakonigewin, to understand my relations and actions in the world. This trust helped me to find the will to move beyond critiquing systems, toward engaging people.

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Keywords

Native peoples, Indians of North America, Laws, Legal status, Treaties

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