Aboriginal Rights and the Rule of Law

(2019) 92 Supreme Court Law Review (2d) 159

26 Pages Posted: 25 Sep 2019

See all articles by Malcolm Lavoie

Malcolm Lavoie

University of Alberta Faculty of Law

Date Written: September 16, 2019

Abstract

Through a process of judicial policy-making, Canadian Aboriginal law has been fundamentally transformed over the past three decades. This chapter evaluates two key doctrines, Aboriginal title and the duty to consult, according to the vision of the rule of law espoused by liberal theorists John Rawls and F.A. Hayek. This liberal vision emphasizes the value of laws that are universal, known and certain, and apply equally to all. The chapter argues that the law relating to Aboriginal title and the duty to consult fails to adhere to these standards, to the detriment of Indigenous and non-Indigenous Canadians alike. The state of this jurisprudence, it is suggested, reflects the diminished place of the rule of law in the Canadian legal imagination.

Keywords: Aboriginal law, legal theory, rule of law

Suggested Citation

Lavoie, Malcolm, Aboriginal Rights and the Rule of Law (September 16, 2019). (2019) 92 Supreme Court Law Review (2d) 159, Available at SSRN: https://ssrn.com/abstract=3454836

Malcolm Lavoie (Contact Author)

University of Alberta Faculty of Law ( email )

Law Centre (111 - 89 Ave)
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

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