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Shifting Boundaries: Aboriginal Identity, Pluralist Theory, and the Politics of Self-Government

[Tim Schouls]' warning of the dangers of "essentializing" or "trait listing" culture in creating policy is actually not far off the mark, it has had a particularly awkward implementation in early federal land-claims policy and legal tests in Canada. Following the 1979 decisi...

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Bibliographic Details
Published in:The American review of Canadian studies 2005, Vol.35 (1), p.190
Main Authors: Schouls, Tim, De Aguayo, Anna (REVIEWER)
Format: Review
Language:English
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Summary:[Tim Schouls]' warning of the dangers of "essentializing" or "trait listing" culture in creating policy is actually not far off the mark, it has had a particularly awkward implementation in early federal land-claims policy and legal tests in Canada. Following the 1979 decision of Justice Mahoney in the Baker Lake Hamlet case in Ontario's federal court, legal tests for the existence of Aboriginal land rights included "traditional" culture check lists. Courts were faced with listening to challenges over testimony about the numbers of skidoos a community did or did not use. Anthropologists, as frustrated expert witnesses in such cases, often resorted to answering Crown's questions about "traditionality" along the lines of "but do Canadians eating pizza make them Italian?" While a highly expensive and time-consuming process, it is interesting to note how many Aboriginal groups, once the federal ban on Aboriginals hiring lawyers to pursue land claims in Canada was lifted in 1951, turned to the courts rather than the political process. Their faith in the power of the Royal Proclamation of 1763 and the rule of law was a triumph of hope over experience until the 1973 Calder Supreme Court decision. Its minority report, speaking of Aboriginal land rights continued existence in untreatied areas, forced then-Prime Minister Pierre Trudeau to create the federal Office of Native Claims. It is this legal pluralistic frameworkbuilt test case by test case-that has allowed Schouls' discussions of relational pluralism, to emerge. So, while I understand his argument that "there need be no rigid list of jurisdiction and powers... if they are to function as communities" (124), I am not quite ready to trust that the processes of mutual accommodation and negotiation, leading to flexible political relationships so important to "relational pluralism" can emerge yet without recourse to a more solid sub-floor of Supreme Court case law. In some ways, it was the confidence generated by Canada's court decisions that gave Aboriginal groups, representing on 3.5 percent of the population, the clout to push for the inclusion of section 35 in the 1982 Constitution, guaranteeing inherent and treaty rights.
ISSN:0272-2011
1943-9954