Modernity, Resource Development and Constructs of Indigeneity: A Summary Analysis of Canadian Jurisprudence and Aboriginal Rights

Abstract

Stereotypes and constructs of indigeneity have social, legal and economic implications for Aboriginal communities in Canada. In particular, essentialist constructs of indigeneity, whether they are manipulated by Aboriginal people themselves or used by judges as legal tests, significantly inform the making of judicial decisions. This paper explores how essentialist constructs of indigeneity both influence judicial decisions and restrict the economic self-determination of Aboriginal peoples in Canada. In the first chapter, a conceptual framework is developed to examine the appropriation of essentialist constructs by those at the margins of society while being explicitly critical of the various essentialisms embedded in modernisation theory, i.e. the tradition-modernity polarity. An analysis of the 1973 Kanetewat v. James Bay Development Corp. in the next chapter highlights the benefits of the strategic use of essentialist constructs of indigeneity by Aboriginal people: opposing hydroelectric development on the grounds that it would harm their traditional way of life, the James Bay Cree successfully brought the James Bay Project to a halt. Finally, my last chapter demonstrates the limited effectiveness nowadays of strategic essentialism in the judicial system. Through my analysis of the impact of the 1982 Canadian Constitution on certain subsequent Supreme Court cases, the most noteworthy of which is the 2005 Marshall R. v.; Bernard R. v. Supreme Court decision, this chapter shows that legal constructs of indigeneity embedded in the legal system (i.e. “frozen” rights approach to Aboriginal rights) block Aboriginal people from engaging in resource development. In sum, Aboriginal people in Canada do not have the liberty to assert their right to self-determination since they can only legally engage in traditional and customary practices: not only does this imply that they have less than full ownership of their traditional lands, it also means that Canadian jurisprudence restricts them from being modern Aboriginal communities, i.e. to assume both modern and traditional identities. Key Words: economic self-determination, modernity, Aboriginal rights, resource development.