Reconciliation and the Role of the Judiciary: Imperialism, Constitutionalism, and the Question of Aboriginal Title

Canada's constitutional order rests on a legal rupture. Prior to Confederation, Indigenous peoples were treated as nations, allies, and treaty partners.

In the nineteenth century, however, that relationship began to change: Indigenous nations transformed from treaty partners into subjects of Crown jurisdiction.

How can the authority of the Canadian state be brought into a lawful relation with Indigenous peoples as partners in confederation?

In Canada, that task cannot be separated from the legacy of British and Canadian imperialism - not only did Canadian law often fail to recognize Aboriginal and treaty rights, but changes in nineteenth-century constitutional doctrine also helped make that failure appear lawful.

Joshua Nichols asks how constitutional reconciliation can be achieved and what it requires of the judiciary. In a historical survey of the jurisprudence, he shows that courts play a central role in identifying the imperial assumptions that remain embedded in constitutional law.

By removing them from doctrine, courts are helping restore legality to the Crown-Indigenous relationship.

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