This work applies a sociological lens to juridical practice in order to illustrate the tendency o... more This work applies a sociological lens to juridical practice in order to illustrate the tendency of law to lag behind extra-juridical historical phenomena, and to examine how this has influenced both the occurrence of, and the nature of, moments of doctrinal productivity in Aboriginal law. In effect, historical practices of colonization in the common law world have more often than not outpaced the law which would sometimes be called upon to adjudicate their legitimacy. The result is that the juridical field has been Preface: A Duck, and Other Motivations While there are more than eighty cases which figure in this critical history of Canadian Aboriginal law, there is at least one pivotal case which goes uncited. In our youth, my cousin and I were charged with the illegal hunting of a duck on one of the lakes adjacent to our family farm. The farm is on the outskirts of Lake Manitoba First Nation, in the western portion of the Interlake region of Manitoba, and has been for all my life a joint venture between my grandparents, parents, uncles, and aunts. It still is for those still living. Spences, Monkmans, Pottingers, and Dumas-the maternal side of my family has roots that run deep in the region, reaching back to before Manitoba or Canada were created. Each of these family lines had signed Métis scrip in the nineteenth century, after Manitoba was brought into existence through negotiations between the Red River Métis and the Crown in right of the Dominion of Canada. (As per Nicole St-Onge's suggestion, however, we would do well to be mindful of the diversity, complexity, and fluidity of Métis identity and history. Many of the Métis in the region of Lake Manitoba and Lake Winnipegosis had close ties to the Saulteaux or Cree populations and often shared with them both language and lifestyle 1-to this I would even add a number of shared surnames and portions of family trees. Our Spences and Monkmans, for their part, were speakers of Saulteaux, or Anishinaabemowin.) The region is somewhat northern for farming, boasting at times more forest, lake, or wetlands than open prairie or meadow. No cash crops are sown, it is mostly wild hay 1 [1992] HCA 23, 175 C.L.R. 1 [Mabo (No 2)]. 2 The reader may have already noticed that I use the term Indigenous and Aboriginal interchangeably when describing those groups colonized and dispossessed within former British colonies such as Australia, Canada, and the United States. There is generally a distinction, however, when employing these terms as adjectives to describe types of law. I offer in this work a critique of Aboriginal law, a body of common law jurisprudence which engages with and purports to resolve the controversies and conflicts that arise between colonizer and the colonized in the settler state. Indigenous law, on the other hand, is often used to refer to customs, institutions, and systems of regulation within Indigenous societies which are analogous in function to the Western concept of law yet culturally distinct in their specific manifestations. 3 Ibid., at para 97. 4 However, it should be noted, and will be discussed below, that no title claims were directly litigated by an Aboriginal plaintiff until the 1970s. The earlier history of Aboriginal rights and title jurisprudence in former British colonies contains numerous examples of the legal-political fate of Aboriginal peoples being radically altered by the obiter dicta and rationes decidendi of someone else's litigation.
This work applies a sociological lens to juridical practice in order to illustrate the tendency o... more This work applies a sociological lens to juridical practice in order to illustrate the tendency of law to lag behind extra-juridical historical phenomena, and to examine how this has influenced both the occurrence of, and the nature of, moments of doctrinal productivity in Aboriginal law. In effect, historical practices of colonization in the common law world have more often than not outpaced the law which would sometimes be called upon to adjudicate their legitimacy. The result is that the juridical field has been Preface: A Duck, and Other Motivations While there are more than eighty cases which figure in this critical history of Canadian Aboriginal law, there is at least one pivotal case which goes uncited. In our youth, my cousin and I were charged with the illegal hunting of a duck on one of the lakes adjacent to our family farm. The farm is on the outskirts of Lake Manitoba First Nation, in the western portion of the Interlake region of Manitoba, and has been for all my life a joint venture between my grandparents, parents, uncles, and aunts. It still is for those still living. Spences, Monkmans, Pottingers, and Dumas-the maternal side of my family has roots that run deep in the region, reaching back to before Manitoba or Canada were created. Each of these family lines had signed Métis scrip in the nineteenth century, after Manitoba was brought into existence through negotiations between the Red River Métis and the Crown in right of the Dominion of Canada. (As per Nicole St-Onge's suggestion, however, we would do well to be mindful of the diversity, complexity, and fluidity of Métis identity and history. Many of the Métis in the region of Lake Manitoba and Lake Winnipegosis had close ties to the Saulteaux or Cree populations and often shared with them both language and lifestyle 1-to this I would even add a number of shared surnames and portions of family trees. Our Spences and Monkmans, for their part, were speakers of Saulteaux, or Anishinaabemowin.) The region is somewhat northern for farming, boasting at times more forest, lake, or wetlands than open prairie or meadow. No cash crops are sown, it is mostly wild hay 1 [1992] HCA 23, 175 C.L.R. 1 [Mabo (No 2)]. 2 The reader may have already noticed that I use the term Indigenous and Aboriginal interchangeably when describing those groups colonized and dispossessed within former British colonies such as Australia, Canada, and the United States. There is generally a distinction, however, when employing these terms as adjectives to describe types of law. I offer in this work a critique of Aboriginal law, a body of common law jurisprudence which engages with and purports to resolve the controversies and conflicts that arise between colonizer and the colonized in the settler state. Indigenous law, on the other hand, is often used to refer to customs, institutions, and systems of regulation within Indigenous societies which are analogous in function to the Western concept of law yet culturally distinct in their specific manifestations. 3 Ibid., at para 97. 4 However, it should be noted, and will be discussed below, that no title claims were directly litigated by an Aboriginal plaintiff until the 1970s. The earlier history of Aboriginal rights and title jurisprudence in former British colonies contains numerous examples of the legal-political fate of Aboriginal peoples being radically altered by the obiter dicta and rationes decidendi of someone else's litigation.
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