Rooted Constitution: A look into the Living Tree Doctrine and Indigenous Rights

Abstract

The living tree doctrine is a landmark amendment that transformed how the Constitution was understood. However, it is often not used to its fullest extent in Indigenous rights cases. This paper explores how the underutilization of the living tree doctrine in Indigenous cases has been impacted by Canada’s settler state mentality. This essay argues that the dismissal of the living tree doctrine in Indigenous rights cases has restricted Indigenous self-governance and that this is purposely done by the Canadian state to maintain oppressive colonial power relations. The paper will first explain the reasoning behind not employing the living tree doctrine in Indigenous rights cases and how it is rooted in maintaining colonial power relationships and will then explore why and how the doctrine can help promote Indigenous rights.