Challenging Historical Frameworks: Aboriginal Rights, The Trickster, and Originalism

Abstract

The Supreme Court of Canada has created a narrow framework for recognizing Aboriginal and treaty rights in Canada's Constitution by reference to historic moments of contact, assertions of sovereignty, and negotiated agreements. This approach has placed historical inquiries that search for “original” understandings at the centre of the court's jurisprudence. This article argues that law should not be equated with history in this way. It has severely disadvantaged Indigenous peoples. As a “living tree,” Canadian constitutional law should regard the “past” as a grab bag of possibilities for present reasoning, rather than as a constraint on present developments, because they do not have analogues in a bygone era.