Source: (2004) In Catherine Bell and David Kahane, eds, Intercultural Dispute Resolution in Aboriginal Contexts. Vancouver: University of British Columbia Press. Pp. 57-69.

A brief note about what I mean by the Aboriginal-newcomer legal and political dialogue. In this chapter I am mostly concerned with the legal dialogue on the meaning of Aboriginal rights as they have evolved in Canadian law since 1982. The year 1982 represents an important watershed for Aboriginal rights in Canada because with the repatriation of the Constitution, s.35(1) stated that “the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.” Aboriginal peoples have had no say in determining the content and character of their rights in Supreme Court decisions, which is telling since it is through these decisions that the content of s.35(1) is supposed to be determined. Legal disagreements between Aboriginal peoples and the provincial or federal governments have given rise to a field of law that has evolved into a complex set of philosophical discourses. In particular, Aboriginal rights have been subsumed within political liberalism’s language of rights, rights that are foundational to a constitutional democracy. In addition, Aboriginal peoples use their rights to buttress their negotiating positions in non-adversarial contexts. Regardless, a fundamental political problem remains: the content of Aboriginal rights is articulated in the discourse of the dominant culture and therefore if aboriginal peoples want to tell their stories in courts of law, they must engage these discourses. (excerpt)