From Regulation to Recolonization:
Justifiable Infringement of Aboriginal Rights at the Supreme Court of CanadaLisa Dufraimont
ABSTRACT
According to R. v. Sparrow, the first decision of the Supreme Court of Canada on the Aboriginal rights recognized and affirmed in s. 35(1) of the Constitution Act, 1982, government infringement of Aboriginal rights would be permitted only if it passed a stringent justificatory test. Subsequent Supreme Court decisions in R. v. Gladstone and Delgamuukw v. British Columbia have amplified the government’s power to validly infringe Aboriginal rights. An examination of these cases for the concrete doctrinal evolution of the Sparrow test reveals a marked relaxation in doctrine of justification. Changes in the purposive analysis of s. 35(1) have produced a new emphasis on the limitation of Aboriginal rights in the interests of social reconciliation. In addition, the shifting discourse of justification suggests that the justifiable infringements contemplated by the Supreme Court have become increasingly severe since Sparrow. This broadening doctrine of justification has the potential to redefine the scope of Aboriginal rights at the stage of justification. It can also reproduce historical injustices by subordinating Aboriginal rights to majoritarian demands. Finally, a weak justificatory standard undermines the constitutional status of Aboriginal rights. Although not direct authority on the test for justification, the recent decision in R. v. Marshall suggests that the Supreme Court of Canada may be prepared to reinvigorate the Sparrow justificatory standard. This article advocates a return to a stricter doctrine of justification that does not threathen constitutional Aboriginal rights.
--------------------------------------------------------------------Citation: (2000) 58(1) U.T. Fac. L. Rev. 1.
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