Neil Montogmery

Topic

Time Immemorial Traditionalism in Canadian Aboriginal Rights Jurisprudence

Department of Political Science

Date & location

• Wednesday, July 22, 2026

• 9:00 A.M.

• Clearihue Building, Room B017

Reviewers

Supervisory Committee

• Dr. Avigail Eisenberg, Department of Political Science, University of Victoria (Supervisor)

• Dr. Matt James, Department of Political Science, UVic (Member) 

External Examiner

• Prof. Mark Walters, Faculty of Law, Queen’s University 

Chair of Oral Examination

• Dr. Anita Prest, Department of Curriculum and Instruction, UVic

   

Abstract

In Canadian Aboriginal rights jurisprudence, claims of tradition are ubiquitous. When Aboriginal rights claimants come before Canadian courts, when Canadian jurists interpret Aboriginal rights claims, and when Canadian governments contest them, claims of continuity with tradition provide the justificatory register in which Aboriginal rights are recognized in Canadian law. This dissertation argues that “traditionalism” best describes the approach of Canadian courts when they interpret Aboriginal rights claims, that recognizing the force of traditionalism within Canadian jurisprudence explains why R v. Van der Peet remains the landmark case for the recognition of Aboriginal rights in Canada, and that traditionalism’s role within the jurisprudence charts a clear and attractive course for the politics of reconciliation today. 

In pursuing these arguments, this dissertation constructs a “three-dimensional” account of traditionalism. These three dimensions account for traditionalism as a constitutional theory, a form of legal reasoning, and a political theology. The dissertation proceeds by tracking how Canadian courts have applied the legal fiction of “time immemorial” in the jurisprudence, working inductively from the practice of Canadian courts when they interpret Aboriginal rights, title, and treaty claims. Through “time immemorial,” Aboriginal rights claims have taken the form of “justification narratives” within Canadian law in which the practices, customs, and traditions of Aboriginal rights claimants inherited in concrete practice today may be projected onto pre-contact pasts as a means of justifying their protection as constitutional rights. 

What emerges from this discussion is a new interpretation of Canadian Aboriginal rights jurisprudence and an account of how that jurisprudence fits within the present demands of the politics of reconciliation. It is an account which takes traditionalism seriously as a language of political thought, the grammar of which is custom, precedent, and fidelity to tradition.