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Indigenous Law Journal >
Volume 8, Issue 1 (2010) >

Please use this identifier to cite or link to this item: http://hdl.handle.net/1807/24663

Title: Whose "Distinctive Culture"? Aboriginal Feminism and R. v. Van der Peet
Authors: Luther, Emily
Keywords: Indigenous Law Journal
Issue Date: 1-Apr-2010
Publisher: Indigenous Law Journal
Abstract: Aboriginal women have been historically disadvantaged through oppression by both the Canadian state and their own communities. While feminism has often been dismissed as a tool for Aboriginal women, a theoretical and activist movement known as Aboriginal feminism has slowly been gaining ground. Its tenets include drawing inspiration from non-Aboriginal forms of feminism; analyzing colonialism and patriarchy together; evaluating Aboriginal traditions on their merits that is to say, on whether the way they are currently practiced benefits or harms women; and being willing to ally with the Canadian state and non-Aboriginal feminists in order to promote the interests of Aboriginal women. This paper draws on Aboriginal feminist ideas and applies them to a leading Aboriginal rights case, R. v. Van der Peet, in which an Aboriginal right is defined as a practice or tradition integral to the distinctive culture of the group claiming the right. This analysis demonstrates that the test set out in Van der Peet is inconsistent with Aboriginal feminist doctrine and that it tends to encourage results that Aboriginal feminists warn against. In particular, it tends to elevate to rights only those practices or traditions that benefit Aboriginal men over women; it encourages the rigid idealization of pre-contact practices; and finally, it indirectly reinforces internal violence and oppression. Therefore, an alternative test is needed, through which traditions that enrich women's roles are celebrated and revived, and ones that oppress women are rejected.
Description: LL.B. University of Saskatchewan, 2009. Emily Luther is currently clerking at the Saskatchewan Court of Appeal
URI: http://hdl.handle.net/1807/24663
ISSN: 1703-4566
Rights: Indigenous Law Journal
Appears in Collections:Volume 8, Issue 1 (2010)

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