Eviscerating Historic Treaties: Judicial Reasoning, Settler Colonialism, and ‘Legal’ Exercises of Exclusion

Abstract

This article examines the reasoning of Canadian Supreme Court justices in the area of Aboriginal treaty rights, paying particular attention to the Grassy Narrows (2014) decision. By not only engaging with the internal logics contained within treaty rights decisions, but also by further contextualizing the decisions and comparing them to the transcripts of their respective hearings, it provides an additional perspective on the socio‐cultural relations of power inscribed within the legal field. Ultimately, the article demonstrates that members of the Supreme Court have displayed a consistent orientation towards logics predicated upon the absorption and elimination of Indigenous legal perspectives. In fact, what a reading of the hearing transcripts together with the Grassy Narrows decision reveals is a judicial privileging of established property interests and extractive impulses underpinning the settler‐colonial development of the Canadian state.