The Indian, the law and the land: An analysis of the Chippewas of Sarnia case using P. W. Kahn's cultural approach to the rule of law.

摘要

This thesis will use P. W. Kahn's cultural approach to law, found in The Cultural Study of Law: Reconstructing Legal Scholarship, as a methodology to examine a recent and important Aboriginal land claim decision---the Chippewas of Sarnia case. After embarking on an explanation of this methodology to be utilised, I will provide a detailed description of the Ontario Superior Court and Court of Appeal decisions in that case. In a doctrinal exploration of the case I will then allege that both decisions rely heavily on a large scope of judicial discretion.; This exercise of discretion, from a cultural perspective, prompts the question of what factors, beliefs and ideologies contribute to the exercise of discretion in this particular case. In order to do this I will ask the question of what conditions make these particular judgments valuable, practical, and acceptable decisions under the rule of law.