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Restless Spirits in the Land: Finding a Place in Canadian Law for Aboriginal Civil Disobedience

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This article will argue that Aboriginal use of civil disobedience should be legalised within limited circumstances. Aboriginal peoples have constitutional rights under s. 35(1) of the Constitution Act, 1982. The Supreme Court of Canada decided in Haida that if a Canadian government possesses knowledge, real or constructive, that its actions may affect Aboriginal interests that are potentially protected under s. 35(1), that government then has duties towards the Aboriginal peoples concerned. These duties can include giving prior notice of the proposed action, or even interim accommodation of the Aboriginal interests pending final resolution. If the Canadian state undertakes an action that 1) threatens harm to or interference with an Aboriginal interest and 2) in a manner that reflects a failure to uphold its obligations under Haida and 3) the action is commenced before the interim hearing contemplated by Haida can be initiated, Aboriginal peoples should be allowed to have recourse to civil disobedience to block that action. The idea is that the action reflects a failure by the state to uphold the rule of law with respect to Aboriginal rights and therefore should disentitle the state from enforcing such action through criminal prosecution.

Affiliations: 1: University of British Columbia, Vancouver, BC, Canada

10.1163/157181109X394353
/content/journals/10.1163/157181109x394353
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/content/journals/10.1163/157181109x394353
2009-02-01
2016-12-11

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