Judicial Conceptions of Tradition in Canadian Aboriginal Rights Law

The concept of tradition has, historically, played a significant role in the anthropological understanding of indigenous peoples. Since the 1970s, it has also played a fundamental role in the judicial determination of aboriginal rights claims in Canada and other Anglophonic common law countries, such as Australia and the United States. In order for indigenous practices to be recognised and protected by these legal systems, those practices must be proved to be traditional. This paper offers a lawyer's analysis of the ways in which Canadian judges have interpreted and used the concept of tradition in aboriginal rights claims. It is hoped that this analysis will provide anthropologists with a greater insight into the thought and practice of an institution with which they are increasingly in contact, and stimulate them to engage critically with that institution in relation to the interpretation and use of such concepts as tradition.