|
First Nations Jurisprudence and Aboriginal Rights
by James Youngblood Henderson, I.P.C.
|
 |
"The Supreme Court of Canada has declared that the Grundnorm, or first principle, of Aboriginal rights resides in the simple fact of First Nations living in distinctive societies and cultures. These diverse spontaneous or organic orders of First Nations stretch back through the ages and provide the ultimate reason for accepting First Nations jurisprudence and law as well as the claims of Aboriginal rights. Intimately connected to First Nations jurisprudence and law, Aboriginal rights are reference points to the underlying, resourceful, and effective First Nations legal system or system of law. The processes and principles of First Nations jurisprudence and law inform right behavior and sustain Aboriginal rights; they are the vital unstated assumptions upon which Aboriginal rights are based. These processes and principles of First Nations jurisprudence transform the constitutional framework of both Eurocentric jurisprudence and Aboriginal rights." - From Chapter 4
Temporarily Out of Stock
Order Now!
|
| The patriation of the Constitution of Canada in 1982 profoundly changed the level of consideration given to the claims and rights of Aboriginal peoples. With the enactment of the Constitution Act, 1982 substantive protection was given to Aboriginal and treaty rights, and First Nations jurisprudence, developed across countless generations by Elders, knowledge keepers, performers and storytellers, was revitalized. The constitutionalization of Aboriginal rights, while receiving heightened political and legal attention, has also created difficulty and, perhaps unnecessary, tension in adjudication.
In this text, James Youngblood Henderson explores the crisis of interpretation that eventually confronted the courts in the constitutional guarantee of Aboriginal rights to First Nations. He examines how the Supreme Court of Canada has struggled in attempting to develop the underlying principles and theory of Aboriginal rights, in defining the nature and content of Aboriginal rights, while ignoring the relation of First Nations jurisprudence to Aboriginal rights.
|
|
The author’s approach is not only to review the Court’s guidelines and holdings as informed by the constitutional traditions of legal positivism and legal reasoning, but also to explore understandings and operations within the sui generis framework and analysis articulated by the Court in addressing constitutional issues. Henderson takes an interpretative approach in presenting a vision of Aboriginal rights from a First Nations law and jurisprudence perspective, a perspective that may offer some resolution to the many intricate issues of interpretation and definition and shows how First Nations jurisprudence strengthens the underlying unity of the sui generis framework for Aboriginal rights and resolves issues in the judicial analysis of these rights. While recognizing that a reconceptualization of the framework of Aboriginal rights poses difficulty from any standpoint, Henderson emphasizes that Canadian law must make constitutional space for the inclusion of First Nations jurisprudence and legal traditions if the constitutional language of “existing aboriginal rights” is to have full meaning in Canada.
First Nations Jurisprudence and Aboriginal Rights provides an informative and insightful perspective, which will be of interest to a wide range of readers.
|
Table of Contents
Preface
Table of Cases
Prologue
1. The Repatriation of Aboriginal Rights
2. Underlying Principles of Aboriginal Rights
3. Theory of Aboriginal Rights
4. Nature of First Nations Jurisprudence
5. Judicial Definition of Aboriginal Rights
Epilogue: Conceptions and Implications
|
About the Author
James (Sákéj) Youngblood Henderson, a member of the Bear Clan of the Chickasaw Nation and the Cheyenne Tribe, is the research director of the Native Law Centre of Canada and teaches Aboriginal law at the College of Law, University of Saskatchewan. A recognized authority in Aboriginal jurisprudence, constitutional rights, human rights, and federal law concerning Indians, his published work in these areas has been widely cited. In 2005 Mr. Henderson was awarded the Indigenous Peoples’ Counsel and in 2006 he received the National Aboriginal Achievement Award for Law and Justice.
Temporarily Out of Stock
Order Now!
|
|
|
|
|
