New Scholarship on Court Power and Aboriginal and Treaty Rights in Canada

The American Review of Canadian Studies has published Political Failure, Judicial Opportunity: The Supreme Court of Canada and Aboriginal and Treaty Rights, available at  

Here is the abstract:  What role do courts play in public policymaking? This article finds that the Supreme Court of Canada revitalized the making of Aboriginal and treaty rights policy from 1990 to 2007. It offers an explanation of the Court’s engagement in this area and suggests that the standard Charter narrative about court power does not explain fully the role of the Court in Aboriginal and treaty rights policymaking. The account highlights how politics affect the Court and how the Court affects politics. The Court emerged as a significant and influential player in policymaking as the political process failed to accommodate Aboriginal and treaty rights, Aboriginal peoples mobilized legally, and the institutional power of the Court grew. The article’s emphasis on political failure provides a more nuanced view of the Court and how it exercises power vis-à-vis political elites and interest groups.

An earlier version of the article is available on SSRN at