Malcolm Lavoie (University of Alberta Faculty of Law) has posted Aboriginal Rights and the Rule of Law ((2019) 92 Supreme Court Law Review (2d) 159) on SSRN. Here is the abstract:
Through a process of judicial policy-making, Canadian Aboriginal law has been fundamentally transformed over the past three decades. This chapter evaluates two key doctrines, Aboriginal title and the duty to consult, according to the vision of the rule of law espoused by liberal theorists John Rawls and F.A. Hayek. This liberal vision emphasizes the value of laws that are universal, known and certain, and apply equally to all. The chapter argues that the law relating to Aboriginal title and the duty to consult fails to adhere to these standards, to the detriment of Indigenous and non-Indigenous Canadians alike. The state of this jurisprudence, it is suggested, reflects the diminished place of the rule of law in the Canadian legal imagination.