The author critiques various strands of liberal moral and political theory as they relate to
Aboriginal rights. In particular, he rejects the formulation of liberal theory by philosopher Will
Kymlicka, as failing to respond to the unique realities and perspectives of First Nations. He then
draws on the insights of philosophers Charles Taylor and James Tully to argue for a new
approach to Aboriginal rights, premised on principles of dialogue, recognition and the
willingness to engage in an "intercultural journey" in which a middle ground of law, informed by
Canadian and indigenous norms, is created.
In chapters two through four, the author employs Wittgenstein's "perspicuous contrast" in
order to reveal the dialogical basis of Gitksan and Wet'suwet'en legal and political structures, as
well as to reveal the dominant role that "monologues" play in the Canadian law of Aboriginal
rights. He identifies three monologues: discovery, sovereignty and the "authentic Indian," by
which Canadian law marginalizes and subjugates First Nations and their legal systems. Such
monologues depend for their coherence and success upon Aboriginal silence.
In chapter five, the author argues that notwithstanding the persistence of monologues,
Canadian law can be open to dialogue and to the broadening of understanding that is required for
the construction of an intercultural legal middle ground. He issues a strong call for the legal
system to turn to Aboriginal law as a major source for the middle ground, and argues that doing
so will help preserve the ability of First Nations to participate in the intercultural dialogue in their
own voices and ways of knowing, which is essential to the successful deployment of the
approach argued for in chapter one.
The author concludes that the middle ground will best be achieved through treaties,
backed by an intercultural legal duty on all parties to negotiate in good faith. He also argues that
a rethinking of sovereignty is necessary, in order to preserve the ability of First Nations to
participate in intercultural dialogue secure in their autonomy and self-determination. To that end,
he argues that courts can provide a useful "backdrop" to the intercultural middle ground, by
continuously identifying intercultural legal norms which respect bedrock principles of each
community's legal system in order to preserve the autonomy and self-determination of each.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:BVAU.2429/8106 |
| Date | 11 1900 |
| Creators | Duncan, Emmet John |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Relation | UBC Retrospective Theses Digitization Project [http://www.library.ubc.ca/archives/retro_theses/] |
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