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77 U. Toronto Fac. L. Rev. 59 (2019)
From Rights Recognition to Reconciliation: Reflecting on the Government of Canada's Proposed Indigenous Rights Recognition Framework

handle is hein.journals/utflr77 and id is 77 raw text is: FROM RIGHTS RECOGNITION TO RECONCILIATION: REFLECTING ON THE GOVERNMENT OF CANADA'S PROPOSED INDIGENOUS RIGHTS RECOGNITION FRAMEWORK JOANNE CAVE* I INTRODUCTION 60 II CURRENT LANDSCAPE FOR INDIGENOUS RIGHTS 62 III LEGAL PROOF TO STATUTORY RIGHTS RECOGNITION 66 IV THE CONSTRAINTS OF STATUTORY RIGHTS RECOGNITION 68 V APPLYING A GENERATIVE APPROACH TO RECOGNITION AND RECONCILIATION 72 VI PATHS FORWARD 74 VII CONCLUSION 80 ABSTRACT In 2018, Prime Minister Justin Trudeau announced the development ofan Indigenous Rights Recognition Framework. The framework is intended to provide a statutory alternative to the time and resource-intensive process of litigating Indigenous rights claims in the courts. The extensive criticisms mounted by Indigenous leaders, activists and legal scholars raise important questions about how Indigenous rights claims are best negotiated and resolved. This article argues that neither judicial nor statutory approaches to Indigenous rights recognition facilitate the substantive, systems-level change that is needed to achieve Canada's objective of meaningful reconciliation. Instead, the Government of Canada can strengthen the proposed approach in the following ways: (1) including proposals for meaningful constitutional amendments; (2) empowering existing judicial processes to incorporate Indigenous legal traditions and harmonize Indigenous, common and civil law traditions; (3) allowing First Nations and Indigenous communities to introduce their own constitutions and giving existing constitutions full legal force and effect; and (4) altering the structure of the alternative dispute resolution body proposed in the framework. KEYWORDS Indigenous rights, Van der Peet, rights recognition, Aboriginal rights, Aboriginal self-governance, juridicial pluralism * Joanne Cave recently completed her second year in the Juris Doctor at the University of Alberta Faculty of Law. She holds a Master's in Comparative Public Policy and a Master's in Public Policy from the Blavatnik School of Government at the University of Oxford, which she attended as a Rhodes Scholar. She intends to practice in Aboriginal, administrative and regulatory law in Edmonton upon graduating.

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