Finding Your Allies Where You Can: How Canadian Courts Drive Aboriginal Policy in Canada

Abstract

While it has been valuable to Aboriginal peoples to have the courts as allies in their fight for state recognition, it is worth asking whether the slow, expensive, incremental process of achieving recognition through litigation is really the most efficient, let alone just, policy development process. Metis, Non-Status Indians, and Aboriginal women have all determined that litigation can be a useful strategy for achieving state recognition of their Aboriginality in the face of government intransigence. Yet the courts have proven to be imperfect, inconsistent, and not always reliable allies. This article reviews the cases in which Aboriginal women, Non-Status Indians, Metis, and urban Aboriginal people have sought to use litigation to drive the reform of rules for state recognition of Aboriginal peoples in Canada. These cases include not only successful litigation, but also occasions of which last resort to the courts has failed, revealing the difficulties and frustrations that Aboriginal peoples can face in having to rely on litigation to change government policy.