Eliminating Indigenous Jurisdictions: Federalism, the Supreme Court of Canada, and Territorial Rationalities of Power

Abstract

AbstractThis paper examines judicial reasoning in the area of Aboriginal title, paying particular attention to the Supreme Court of Canada's Tsilhqot'in Nation (2014) decision. While the decision has been heralded as a ‘game-changer’ within media circles and legal commentaries for its recognition of a claim to title under section 35(1) of the Constitution Act, 1982, the authors argue that the decision does not depart substantially from prior judicial logics predicated upon the production of Crown sovereignty and the denial of Indigenous legal orders. In fact, the authors argue that the decision displays a clear judicial orientation towards the present jurisdictional divisions of Canadian federalism which not only serves to eliminate Indigenous legal orders and territorial responsibilities, but also provides federal and provincial governments with enhanced powers of ‘incursion’ into Aboriginal title lands.