Aboriginal Right: A Conciliatory Concept

The confusion that persists over Aboriginal claim in North America calls for close examination. The paper begins by sorting out various versions of ‘Aboriginal right’and some of the main factors that govern its use. Confusion is analysed as the result of conflating different frames of reference which determine different sets of expectations by Aboriginal and government representatives. To appreciate the significance of this conflation, it is helpful if not necessary to view the move to use the concept ‘Aboriginal right’as a strategic rather than a legally substantive one. Understanding the move in this way helps to explain why it is that definitions remain elusive. The effect of using the concept has indeed been to enable Aboriginals finally and effectively to table their claim. However, the strategy has its cost. Using the language of the courts places Aboriginal negotiators at a disadvantage, since that language is ineluctably tied to European social and legal sensibilities that militate against understanding Aboriginal claim. If, in the end, we understand that the move to use the language of the courts has been conciliatory, we can better recognise the nature of Aboriginal claim. We can begin to understand that it involves a complex web of responsibilities and commitments, most of which have either been forgotten or perverted to suit government agendas. We can begin to see that it has to do with restoring a relationship of mutual respect and protection.