Elusive Judicial Interpretation of Aboriginal Rights in Canada


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Essay #: 055631
Total text length is 8,543 characters (approximately 5.9 pages).

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The beginning:
Elusive Judicial Interpretation of Aboriginal Rights in Canada
Aboriginal peoples in contemporary Canada are finding themselves in an awkward situation, which is that of living in separately and uniquely identified communities within a larger nation-state. Currently in this country, the constitutional rights of Aboriginal peoples are primarily protected under Section 35 of the Constitution Act, 1982, which has been made explicitly clear, not a Charter right. A series of cases that came to light in a period of several decades, notably cases such as R v. Sparrow, R v. Gladstone, R. v. Marshall, Mitchell v. Canada and R v. Badger, exhibited the Supreme Court’s attempt to interpret and define and reinterpret the rights of Aboriginal peoples....
The end:
..... into dealings with the Crown as at least partially autonomous entities, though living under the Crown (B. Slattery, “The organic Constitution: Aboriginal peoples and the evolution of Canada” (1996) 34:1
Hall L.J. 110). Slattery argues however, “Over the years, this common law status was whittled away by status, and was often ignored by governmental officials and forgotten by the general public” and that “the aboriginal right of self-government does not flow from the Crown and does not depend on governmental grant or recognition. It is an inherent right. However, the right of self-government is not unlimited in scope and it does not support a claim to independence. It operates under the aegis of the Canadian Constitution” (Id. 110).