Unequal Under the Law: Indigenous Originalism and the Living-Tree Approach within Canadian Constitutional Jurisprudence

Abstract

This paper examines the use of two contrasting doctrines of judicial interpretation utilized within Canadian constitutional jurisprudence. On one hand, the Supreme Court of Canada interprets cases involving non-indigenous claimants with a living-tree approach, allowing for the modernization of rights into the 21st century. In a contrasting sense, the highest court in Canada has continually rooted indigenous rights in the past, through utilizing the doctrine of originalism, in turn, preventing the flourishing of indigenous rights within Canada. This paper will further examine the fact that, not only does this divergence in approaches exist, it permeates as a precedent through succeeding Court decisions and, in turn, hinders the ability of indigenous communities and indigenous rights to move forward and progress into the 21st century.