Political Failure, Judicial Opportunity: The Supreme Court of Canada and Aboriginal and Treaty Rights

Abstract

What role do courts play in public policymaking? This article finds that the Supreme Court of Canada revitalized the making of Aboriginal and treaty rights policy from 1990 to 2007. It offers an explanation of the Court’s engagement in this area and suggests that the standard Charter narrative about court power does not explain fully the role of the Court in Aboriginal and treaty rights policymaking. The account highlights how politics affect the Court and how the Court affects politics. The Court emerged as a significant and influential player in policymaking as the political process failed to accommodate Aboriginal and treaty rights, Aboriginal peoples mobilized legally, and the institutional power of the Court grew. The article’s emphasis on political failure provides a more nuanced view of the Court and how it exercises power vis-à-vis political elites and interest groups.