Law, Theory and Aboriginal Peoples

Some Aboriginal people see domestic Canadian law as alien and oppressive. This paper explores one source of this perception. By examining the layers of theory and world-view upon which the law is based, it finds conflict with the sensibilities of Aboriginal peoples. The author argues that a liberal vision supports and enlivens the law, and because it is grounded in this vision, the law cannot protect the interests of Aboriginal peoples. In analyzing the current legal approach to the protection of Aboriginal interests, an alternative liberal argument based on group autonomy is also considered. By examining the debate between liberal theorists, the author reveals the danger liberalism in general presents to Aboriginal peoples and the protection of Aboriginal interests, thus revealing liberal theory to be one source of the perception of oppression. The law's grounding in a particular intellectual tradition creates the perception that the law is oppressive. In exploring an approach highly critical of liberal legal theory, in tracing the similarities between the philosophical basis of both liberal and critical legal theory, of the author's inquiry highlights the cultural rift between Western theorists and the worlds of Aboriginal peoples. Working towards a world in which Aboriginal interests can be appropriately protected does not mean translating these interests into group rights within the array of rights in Canada, nor does it mean understanding these rights as mirroring group autonomy, and it also does not mean recognizing that the "fluid and dynamic" interests of Aboriginal peoples can be better served through progressive democratic measures. In essence, it is a matter of respecting Aboriginal peoples' ability to continue to define who they are, recognizing that their potential for self-definition includes their capacity to project both their own theories and their particular forms of knowledge