Normative Dimensions of an Aboriginal Right of Self-Government

Abstract

This article criticizes justifications for an Aboriginal right of self-government which simply point to international or domestic legal sources as support for the recognition of the right. Rather than solely relying on positivist rationales, it identifies five philosophical or normative justifications commonly put forward in support of an Aboriginal right of self-government; namely, claims to prior occupancy, prior sovereignty, treaties, self-determination, and preservation of minority culture. After assessing the strengths and weaknesses of each, it concludes that none of these perspectives alone can fully support an Aboriginal right of self-government, as distinct from a right of self-determination. What is required is a synthesis of these justifications understood by reference to principles of formal and substantive equality.