Negotiated vs. judge-made Aboriginal law, bridging the two solitudes

grantor: University of TorontoThis paper examines the two streams through which Aboriginal law is currently being developed--through negotiations, and through court decisions. It then analyzes the interaction between these two streams, both positive and negative. It is my thesis that a greater understanding by courts of modern negotiated agreements will provide them with a source of law, and with an understanding of Aboriginal perspectives, which will help them to better bridge the gap between their stated objectives, and the "on the ground" impact of their decisions. Both negotiated and judge-made Aboriginal law must interact in a more synergistic way if society is to meet the challenges inherent in reconciling preexisting Aboriginal occupation with the current reality of a largely non-Aboriginal population with competing rights and interests. Greater mutual understanding of their respective roles, strengths and weaknesses will help these two streams of law to work together, rather than at cross-purposes.L.L.M