The Plurality of Meanings Shouldered by the Term "Aboriginality": An Analysis of the Delgamuukw Case
Group-differentiated rights are based on ethnocultural or national membership. They can protect collective identity and are important tools of accommodation available to the state. What happens, though, to the efficacy of these rights as tools of accommodation and their protective capacity if the identity they are meant to protect and accommodate is contested? This paper is an investigation of the intersection of identity contestation and group-differentiated rights in the Canadian context. The investigation focuses on aboriginality, Aboriginal rights and the question of accommodation.
The paper discusses the Supreme Court's decision in the case of R. v. van der Peet and briefly outlines the purpose, the nature and the scope of Aboriginal rights. It traces the extent of the contestation of this collective identity by identifying three different ways of conceptualizing aboriginality. Finally, it turns its attention to the case of Delgamuukw v. British Columbia. An examination of this case exposes how the contested nature of aboriginality places limits on the effectiveness of Aboriginal rights to protect certain versions of aboriginality. In the process, it casts doubt on the degree to which Aboriginal rights, as they are currently constructed in Canada, accommodate this collective identity.
Canadian Journal of Political Science 40:3 September 2007, 591-613