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In this chapter, I seek to re-engage with the philosophy of the notwithstanding clause in Canada’s Charter of Rights and Freedoms, and argue that the clause enacts a relatively unique model of constitutionalism attentive to traditions of parliamentary democracy and to respect for distinct national identities within Canada. First, I draw on the history of the clause and the thought of the premiers who advocated for it, linking their ideas on it to their broader theories of constitutionalism and identity. Second, I argue that returning to their conception of the clause allows for a different reading of the text than has been supposed by those who read the clause narrowly, such as Jeffrey Goldsworthy and Jeremy Waldron, whose considerations of the clause relate to more abstract, decontextualized aspects of interpretation. I seek to show that they have missed the potential for more coordinate approaches to rights interpretation. Third, I exposit the clause’s fit with the circumstances of Canada, showing how it opens possibilities going beyond dialogue on rights interpretation to the implementation of principled coordinate approaches to rights interpretation and colocation of rights with other aspects of national identity. I argue that these features of Canadian constitutionalism need to shape interpretation of the clause’s contribution to dialogue theory.
International law on the rights of Indigenous peoples has developed rapidly in recent decades. In the latest phase of this development, international instruments on the rights of Indigenous peoples have increasingly offered universalized statements. However, the reality remains that the implementation of Indigenous rights must take place in particular circumstances in particular states. The form of domestic implementation of Indigenous rights may or may not connect closely to international law statements on these rights, and there may be good reasons for that. This essay takes up a particular example of Indigenous land rights and a significant recent development on land rights in the Supreme Court of Canada.