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Publisher Description

The content of the constitutionally protected Aboriginal right to self-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 lawmaking 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.

GENRE
Professional & Technical
RELEASED
2009
December 22
LANGUAGE
EN
English
LENGTH
73
Pages
PUBLISHER
Faculty of the Common Law Section, University of Ottawa
SIZE
368.1
KB

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