The respect of Indigenous Peoples’ ancestral land rights constitutes one of the greatest challenges jurists face. The ideal manner of addressing it is through concluding treaties with them. In Canada, this practice is currently impeded by the policy of “exchanging” vague rights for rights that are defined with precision. This policy is deemed disgraceful by Indigenous parties, for whom negotiation must concern the full recognition of ancestral rights. This problem constitutes an aporia for jurists, until its historical contextualization, complemented by a critical reflection on legal thought, highlights that it results from the coming together of two different conceptions, not only of the concept of “ancestral rights” but also of “law” itself. This meeting is that of monism with legal pluralism. Even then, the jurist might feel helpless before the question of the normative meaning of the larger process of progressive recognition, by Canadian and supranational law, of the Indigenous legal orders. The defunct agreement with the Innus recognized their ancestral rights as an expression of their identity. The Royal Commission on Aboriginal Peoples made “mutual recognition” the guiding principle of its recommendations. The “struggle for recognition” theme therefore leads to think that philosophy will play a leading role. Multicultural liberalism and the policy of recognition authorize the formulation of a thesis of a double struggle for legal protection and for the assumption of the value of Indigenous legal cultures. However, it is not with the multicultural issue in mind that, at around the same time as Charles Taylor, Axel Honneth set out to review systematically a theme that passes as Hegelian. The present research presents itself as a philosophical investigation of a legal problem. It also constitutes an investigation of the interest of philosophy to elucidate legal problems.
Professor Maxime St-Hilaire’s thesis is available here.