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VOL. 78 PART 4 JULY 2020
field from Indigenous scholars42—particularly from the Americas—are few
and far between.”43 I expected to find detailed discussion of Canada’s status
(like Australia’s) as a settler colony and the difficulties this poses to regarding
Indigenous peoples and authorities as independent, self-determining
and sovereign and not merely as subgroups of individuals within Canada—
a key claim of the book. Can this claim really be meaningful when the
Indigenous population is a tiny percentage of the total Canadian population;
Indigenous groups are relatively small in size; their lands are now
largely settled or exploited by non-Indigenous peoples; the remaining lands
under their control (primarily reserves) are essentially tiny colonies of
Canada, which delegates powers to their governments (the “indirect rule” of
the British Empire) or claims paramountcy over them (as in the test to justify
infringements of Aboriginal and treaty rights); and they have no
prospect of being independent, unlike the peoples of Asia and Africa who
gained independence decades ago?44 Detailed discussion of these practical
issues seems to be required in any book on Canadian law and Indigenous
self-determination, including one devoted to theorizing.45
1. For other recent works on Aboriginal law with much
philosophical content, see Brenna Bhandar, Colonial
Lives of Property: Law, Land and Racial Regimes of
Ownership (Durham, NC: Duke University, 2018);
Joshua Nichols, A Reconciliation Without Recollection?:
An Investigation of the Foundations of Aboriginal
Law in Canada (Toronto: University of Toronto
2. Cole Harris, Making Native Space: Colonialism,
Resistance, and Reserves in British Columbia (Vancouver:
UBC Press, 2002) at xvii.
3. At 387.
4. At 411.
5. Details, including a link to a preview on Google
Books, can be found at <utorontopress.com/ca/
6. Professor Christie distinguishes between Indigenous
peoples and Aboriginal peoples, but I will use
“Indigenous” for consistency and simplicity. It does
not appear to me that the distinction is critical to the
main points of the analysis.
7. At 9.
8. R v Sparrow, 1990 1 SCR 1075 Sparrow.
9. R v Van der Peet, 1996 2 SCR 507 Van der Peet.
10. R v Gladstone, 1996 2 SCR 723.
11. His inaugural lecture as a full professor in 2017 contained
some of the key components and can be
viewed at <www.youtube.com/watch?v=3Q7p2tOI
12. At 5.
13. Sparrow, supra note 8 at 1104.
14. At 35.
15. At 38.
16. At 32.
17. At 353.
18. At 356.
19. At 357.
20. At 359.
21. At 363.
22. At 339–41.
23. At 339.
24. At 121.
25. At 271, 351.
26. At 361.
27. At 353.
28. At 322.
29. At 372, 381.
30. At 381.
31. At 387.
32. Delgamuukw v British Columbia, 1997 3 SCR
33. Tsilhqot’in v British Columbia, 2014 SCC 44.
34. At 387.
35. At 388.
36. Joel Bakan, Just Words: Constitutional Rights and
Social Wrongs (Toronto: University of Toronto Press,
1997) at 61–62.
37. See Van der Peet, supra note 9 at paras 18–19; PG
McHugh, Aboriginal Title: The Modern Jurisprudence
of Tribal Land Rights (Oxford: Oxford University
Press, 2011) at 311–27; Jim Reynolds, Aboriginal
Peoples and the Law: A Critical Introduction (Vancouver:
UBC Press, 2018) at 3–5, 16, 212–13.
38. Reynolds, supra note 37 at 197–99.
39. Ibid at 16–17, 197–99.