The Canadian state presents itself as tolerant, anti-colonial and self-critical. Yet, the legal justification for the Crown's acquisition of sovereignty and jurisdiction concerning Indigenous peoples and their lands, relies on the colonial era doctrine of terra nullius which is based on the proposition that Indigenous peoples were sufficiently inferior to enable the Crown to presume that their territories were unoccupied. This paper discusses how the doctrine of terra nullius becomes applied in Canadian law and its limitations as an acceptable proposition at this time in history. It then discusses and evaluates alternatives to that doctrine which have been proposed in various quarters in order to determine the possibilities for the conceptualization and establishment of a political and legal relationship between First Nations and Canada that is post-colonial in its approach and practice.

Over the last few decades the Supreme Court of Canada has been working out what the constitutionalization of Aboriginal rights entails. Early jurisprudence took a rights-based approach to the protection of these rights, affording them a significant degree of protection from legislative infringement. In more recent decisions, however, the Supreme Court has markedly reduced the degree of protection these rights will enjoy. The judiciary has developed a set of general principles concerning the justification of judicial activism, principles ultimately grounded in a vision of Canada as a constitutional democracy and the role of the judiciary in such a democratic structure. This work examines the ways by which the judiciary might attempt to deploy the principles, and the vision on which they depend, in efforts to justify its recent activism in the realm of Aboriginal rights.

The debate over the application of the Canadian Charter of Rights and Freedoms to Aboriginal governments remains unresolved. In the author's opinion, insufficient attention has been paid in Canada to the American experience with the application of civil rights guarantees to tribal governments. This experience reveals that for the past forty years American policy-makers and judges have been struggling with this contentious issue, and have attempted to achieve a balance between the protection of individual rights and preservation of tribal sovereignty and traditions. In light of the American experience, the author argues that a simplistic yes or no answer to the Charter's application to Aboriginal governments is inappropriate. In particular, more consideration has to be given to the impact of the Charter on Aboriginal cultures and to the role of Canadian courts in adjudicating disputes that arise within Aboriginal communities.

The administration of the justice system within Native communities went through several transformations in Canada. Under the pressures of First Nations' claims, the model of imposition has left room for others based on adapation of practices, participation, consultation and partial power transfers towards Native communities. Such processes of power transfers within the justice field, which started in the 1990's, are part of a more general movement of communitarisation of the penal system or diversion of some conflicts. They are not specific to native communities and limited by several factors, particularly by the founding premisses of the relations between the State and the First Nations, meaning the principle of incorporation of Native Peoples into the law of the State and the socio-economic conditions of Native communities.

Why are First Nations overrepresented in Canadian prisons? The habitual answer is that the Canadian justice system is not adapted to Aboriginal cultures. This has given rise to various measures of adjustment, which have not, however, contributed significantly to halt the constant increase of overrepresentation. The author argues that this predicament is rather due to the lack of credibility that the Canadian justice system has in the eyes of Aboriginal peoples, given its involvement in the dismantling of Aboriginal institutions of social control since the middle of the nineteenth century. For this reason, first of all, one must dissociate oneself from certain founding myths of present-day Canada. Moreover, all must be set in motion to allow Aboriginal peoples to reappropriate their political institutions, including their own ways of administering justice. Make no mistake: it is not a question of returning to the past, but rather of moving ahead towards the future.

It is the thesis of this paper that the legal principles within pre-contact Aboriginal legal orders affecting individual and collective rights can be articulated and extended to apply to current-day sexual orientation and transgender issues in Aboriginal communities. The conceptual framework for the paper is that (1) pre-contact Aboriginal societies generally accepted sexual orientation and transgenderism diversity, (2) a consequence of colonialism has been widespread intolerance of sexual diversity, (3) recent litigation and political action have raised the profile of sexual orientation and transgender issues within Aboriginal societies, and (4) Aboriginal people can draw on pre-contact legal orders and employ a critical pragmatic approach to build non-oppressive self-governing nations. The paper argues further that the conflict between collective and individual rights is essentially a false dichotomy. The challenge is to figure out how Aboriginal legal systems can coexist with the western legal system in a way that maintains the integrity of each culture and that protects the rights of Aboriginal gay men, lesbians, and the transgendered.