Does Constitutional Change Matter? Canada's Recognition of Aboriginal Title

Abstract

Significant disagreement exists among scholars and practitioners as to the political, legal and social implications of constitutional change. This article evaluates the impacts of constitutional change through an empirical study of Aboriginal title litigation in Canada. Through the historical comparison of Aboriginal title claims brought before and after the constitutional incorporation of Aboriginal rights, it demonstrates how Aboriginal title doctrine and rates of litigation have changed since Aboriginal rights were incorporated into the Canadian Constitution. It suggests that these changes in Aboriginal title litigation should be understood through an evaluation of several possible explanations in addition to textual change, including the evolution of the common law, shifts in judicial personnel, and the rise of legal support networks. It concludes that while the Canadian Supreme Court and Aboriginal title claimants' heavy reliance on constitutional arguments indicates that the constitutional recognition of Aboriginal rights has influenced the development of Aboriginal title litigation since 1982, these changes are best understood as the result of sustained interactions among multiple influences.