Histories That Bind: Doctrinal Productivity and Legal Governance in Canadian Aboriginal Law

Abstract

This work applies a sociological lens to juridical practice in order to illustrate the tendency of law to lag behind extra-juridical historical phenomena, and to examine how this has influenced both the occurrence of, and the nature of, moments of doctrinal productivity in Aboriginal law. In effect, historical practices of colonization in the common law world have more often than not outpaced the law which would sometimes be called upon to adjudicate their legitimacy. The result is that the juridical field has been caught in legal-normative binds and left to accommodate history through doctrinally creative means. Using other common law jurisdictions as a springboard for an examination of Aboriginal law in Canada, I argue that the judiciary has made use of the unacknowledged elasticity in the law to manage such dilemmas, and it has done so in a manner which presents this juridical work as fundamentally grounded and self-evident. In Canada, a bind developed in the late twentieth century because the law’s largely unsympathetic legal positivist approach to Aboriginal title and rights became socio-normatively anachronistic. Available jurisprudential adaptations for the resolution of this, however, were just as risk-laden as the bind itself. The jurisprudence presented as offering a new justice was thus also oriented toward managing risk. Two concepts that help conceptualize how that doctrinal productivity has allowed the juridical field to manage risk and navigate historical binds are injusticiability, the rendering of something unavailable for adjudication by articulating it as a political question rather than a legal question, and incommensurability, the inscribing of difference upon the Aboriginal legal subject in order to accommodate exigent circumstances with novel forms of justice. With the aid of these techniques, the SCC has tempered rights and title by deducing for them inherent limitations and implicit overrides, and this in a fashion which preserves the juridical field’s ability to maintain rights and title as objects of continuing legal governance. The profound ambivalence of contemporary Aboriginal law, however, is that rights and title can be won under the new jurisprudence—but only with the tacit acceptance of these limitations as the self-evident manifestations of justice.