Acceso usuarios
Avigail Eisenberg
This paper explores how the recognition and protection of Indigenous cultural practices became one of the central ways in which courts use the Constitution Act, 1982 to recognize and protect Indigenous rights. It considers the Court’s 1996 ‘distinctive culture test’ as a response to issues about cultural identity and citizenship raised in the Canadian politics and scholarship in the 1970s and 1980s. Whereas serious challenges and risks can develop when judges attempt to assess the cultures of Indigenous people, these challenges are a conventional part of co-existence in diverse societies to which there are effective responses. These challenges ought to be viewed as ones that public institutions are obligated to address in order to develop just and fair relations between Indigenous peoples and the Canadian state. That they have not done so effectively is uncontested, but that they don’t have the capacity to do so, I argue, is mistaken and can be misleading in seeking a solution to problems found in the jurisprudence. The key problem with the distinctive culture test is the specific message it conveys that Indigenous culture can be protected by courts without the state recognizing the right to self-determination, rather than the fact that it sanctions the legal interpretation of Indigenous cultural practices.
