Beyond culture in the courts: re-inspiring approaches to Aboriginal and treaty rights in Canadian jurisprudence.




Starblanket, Gina

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Over the last 30 years, the concept of culture has gained increased ground in Canadian jurisprudence on Aboriginal and Treaty rights under section 35 of the Constitution Act, 1982. This thesis focuses on the gendered nature of the court’s culturalist method of interpreting and adjudicating s.35, arguing that it acts as a containment strategy with respect to Aboriginal and Treaty rights generally, and Indigenous women’s rights in particular. Specific focus is given to the frequent and extreme rights infringements experienced by Indigenous women in Canadian contexts. This project foregrounds Indigenous narratives, Treaty-based and otherwise, as a way of inspiring a s.35 framework that extends well beyond the confines of culture and provides more equitable, comprehensive and substantive protection for a broad range of Aboriginal and Treaty rights within Canadian legal and political institutions.



Culture, Section 35, Constitution Act, 1982, Indigenous Women, Gender, Treaty 4, Aboriginal Rights, Treaty Rights, Motherhood