Culture and the Judiciary: The Meaning of the Culture Concept as a Source of Aboriginal Rights in Canada

Abstract

The author examines the current Canadian approach to the recognition of the rights of Aboriginal peoples. The discussion focuses especially on the conceptual and legal problems at the centre of the Supreme Court's cultural discourse. The Court's approach to culture, “cultural distinctiveness” and “cultural rights” does not concord with current anthropological or historical conceptions of culture. With this approach Aboriginal cultural rights tend to appear “frozen in time”. The Court's cultural ideas are based in part on expert testimony (from the perspective of Aboriginal peoples, amongst others), on human rights and on public opinion, but they also have their own inherent logic. They are essentially oriented toward political questions surrounding the sovereignty of the Crown and the claims of indigenous peoples to self-determination. The cultural discourse of the Court is inseparable from the tension between the liberal politics of equality and the specific rights and claims of distinct peoples. © 2003, Canadian Law and Society Association. All rights reserved.