PrepTest 118

Topic: Legal Studies

Paragraph 1

• Paragraph note
  • Series of problems/solutions
• Views, minor Meta-Structures, and the author's attitude
  • Problem - Getting legal recognition for aboriginal rights
  • Solution - Canadian government wrote it into constitution
  • Problem with solution - “Necessarily” general constitutional language hard to interpret (provincial courts)
  • Outcome - Inconsistent recognition/establishment of rights
  • (Note the “Necessarily” in there - the Author believes that the constitutional rights need to be generally defined, so that part of the problem can’t be itself resolved)

Paragraph 2

• Paragraph note
  • List of rights; Example of problem with affirming one
• Views, minor Meta-Structures, and the author's attitude
  • Rights - Own land/resources; self-government; legal recognition of customs
  • Problem - Applying broadly conceived right
  • Example - Recognition of customs
    • Intent - Protect long-standing traditions, not recent ones
    • Problem - Needed to be proven with records, but these societies relied on oral tradition

Paragraph 3

• Paragraph note
  • Example of problem with affirming another right
• Views, minor Meta-Structures, and the author's attitude
  • Even if court affirms rights, hard to determine what that means
  • Example - Land claims
    • Problem - Courts interpret ownership in “excessively consertaive” manner (“Regrettably”), as only right to survive on land (not use/sell)
    • Won’t be resolved unless Supreme Court gets involved (Author hopes they’ll give more expansive rights)

Main Point: Aboriginal rights encoded in the Canadian constitution have been difficult to enforce in a satisfactory manner because of the difficulty of interpreting and translating the necessarily general constitutional language protecting those rights.

Lines 1-5 - Initial statement of a problem

Lines 5-8 - Attempt at solution to problem

Lines 11-16 - A problem with this solution

Lines 19-23 - List of rights

Lines 23-25 - Generalization about problem with protection of rights

Line 25 - Example of generalization introduced

Lines 40-43 - Another generalization

Line 44 - Example of generalization introduced

Line 57, 58 - Author shows attitude (“excessively conservative,” “Regrettably”)

Lines 58-63 - Necessary part of solution

Problem/Solution - This passage starts by introducing a problem (“struggle”) - getting legal recognition of aboriginal rights (Lines 1-5). Kicking off the passage with a problem generally suggests a Problem/Solution passage. Here, the Author immediately discusses a solution to the problem - Canada encoded protection of these rights in its constitution (Lines 5-8). However, the Author then notes that there’s a problem with the solution - the constitutional language was “necessarily general,” and so it’s been interpreted inconsistently by lower courts (Lines 11-16). The rest of the passage brings up general aspects of this problem of inconsistency, exploring an example of each. When the Author has an opinion on a solution to a problem, that opinion generally makes up the main point. Here, that means the main point focuses on her issues with interpreting and applying the necessarily vague constitutional language that protects aboriginal rights, as seen in our summary above.

Generalization/Example - The Author uses Paragraphs 2 and 3 to highlight specific aspects of the law and aboriginal rights that have (at best) been only partially realized due to the problems with the vague constitutional language. In each, she starts by bringing up one part of the three-part definition of aboriginal rights (as outlined in Lines 19-23). Paragraph 2 focuses on the problems with applying these rights, as exemplified by how courts have dealt with indigenous customs. Paragraph 3 focuses on the problems with what the rights amount to, as exemplified by aboriginal land claims. Since each of these Generalization/Example structures directly supports the main point and takes up a paragraph, expect them to feature heavily in the questions. That said, they support the main point, and so they don’t need to be explicitly mentioned in the correct answer to that question.

List - There are two lists in the passage. The first is a list of the peoples who received protection under the Canadian constitution. This is a very limited list that doesn’t really impact the passage much, so expect maybe a couple answer choices about it. The second is the list of aboriginal rights under the definition in Canada, as seen in Lines 19-23. Two of these rights serve as examples for the discussions in Paragraphs 2 and 3, so they’re more likely to be featured throughout the questions.

The Author shows up in a few places, and there are two general “threads” of her opinion.

The first is hard to put into words, but it deals with how she feels about the attempts at a solution, and why it failed. While she clearly aligns with those fighting for aboriginal rights (see the next section), she also expresses sympathy towards the courts. The language in the constitution is “necessarily general,” and so that problem can’t be helped, as the language can’t be made less general. She also believes that this places an “enormous burden” on the lower courts, so she’s sympathetic to them getting some rulings wrong.

That said, she’s pretty negative towards the court rulings that she discusses in Paragraph 3. She calls those rulings “excessively” conservative (Line 57), and she notes that it’s “regrettabl[e]” that aboriginal rights won’t be protected without the Supreme Court taking up the issue. So, while she’s sympathetic to the difficult position the lower courts are being put in, she also doesn’t agree with their rulings in at least some cases.

Let’s keep this rather nuanced opinion in mind as we work through the questions!