Mark Ebert, “Overcoming the Dispositionism of Aboriginal Rights in Canada: Culture in the Mind versus Life in the World”

Working Abstract

By attributing overt behaviours and practices to underlying, shared dispositions, the Court’s approach to Aboriginal rights creates numerous problems and barriers for Aboriginal peoples. The following article will explore how the courts in Canada manifest dispositionism in Aboriginal rights and the issues that result. In particular, the following will show that it is this dispositionism that placed the notion of culture at the core of the test, and will argue that the Court’s dispositionalized “culture” serves to marginalize and disadvantage Aboriginal peoples and perpetuates the colonial power asymmetry. In the second part of the article, I then explore a relational approach to Aboriginal rights that refocuses determinations of Aboriginal rights on the situation identified by the Court for the existence of the doctrine of Aboriginal rights: prior occupation. My proposed relational approach to Aboriginal rights, I argue, provides a more just and equitable method to meet the reconciliatory goal of Aboriginal rights.

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