Culture and the Courts: A New Direction in Canadian Jurisprudence on Aboriginal Rights?

2001 ◽  
Vol 34 (1) ◽  
pp. 109-129 ◽  
Author(s):  
Michael Murphy
Keyword(s):  
Supreme Court ◽  
Legal Status ◽  
Well Being ◽  
Aboriginal Peoples ◽  
Aboriginal Rights ◽  
Aboriginal Communities ◽  
Legal Recognition ◽  
The Right

This article explores the implications of changes in Canadian Supreme Court jurisprudence on Aboriginal rights since the 1990s. While recognizing the Court's valuable contributions in the period from Calder to Sparrow, the author argues that the 1996 Van der Peet decision deals a serious blow to the legal status of Aboriginal rights, particularly the right to self-government. The standard of legal recognition established in Van der Peet constitutes a decided step back from the Court's prior jurisprudence, and is insufficient as a means of securing its stated ends: the survival and well-being of Aboriginal communities and cultures. The author concludes by arguing that the Court can repair the recent damage it has done to Aboriginal rights by revisiting the concept of the quasinational status granted to Aboriginal peoples within the context of the sui generis Crown-Aboriginal relationship.

Political Participation of Aboriginal People (Orang Asli) in Peninsular Malaysia: Examining the Compatibility of the Aboriginal Peoples Act 1954 with Undrip Standards

2020 ◽  
pp. 1-21
Author(s):  
Muhamad Sayuti Hassan ◽  
Rohaida Nordin
Keyword(s):  
Political Participation ◽  
International Law ◽  
Aboriginal People ◽  
Well Being ◽  
Peninsular Malaysia ◽  
Self Determination ◽  
Aboriginal Peoples ◽  
Orang Asli ◽  
The Right

The main objective of this article is to critically evaluate the compatibility of the ‘right to political participation’ of the Orang Asli by looking at international law standards. The present study utilises a qualitative socio-legal approach, which analyses the political participation of the Orang Asli under Malaysian law and determines whether the Aboriginal Peoples Act 1954 (apa) can provide for the protection, well-being, and the advancement of the Orang Asli. Arguably, the existing provisions of the apa are not in conformity with the recognition in undrip and in no way guarantee the Orang Asli’s right to self-determination as recognised by international law. Thus, the current study recommends an amendment to the apa and introduces guidelines to empower political participation of the Orang Asli by incorporating the principles of undrip. The amendment is necessary to ensure that the protection of the right to self-determination of the Orang Asli is compatible with international law standards.

Courts, the Law, and LGBT Politics in India

2020 ◽  
Author(s):  
Saatvika Rai
Keyword(s):  
Supreme Court ◽  
Legal Reform ◽  
Well Being ◽  
Legal Rights ◽  
Lgbt Rights ◽  
High Court ◽  
The Supreme Court ◽  
Lgbt Community ◽  
The Right ◽  
Hiv Aids

In India, Section 377 of the Indian Penal Code (IPC) criminalized sodomy (penile nonvaginal sexual acts) in 1860 during British colonial rule. Under this law and the traditional cultural norms, the LGBT community faced harassment and violence from the police, medical establishment, religious and conservative organizations, and families. The Indian queer movement mobilized in the early 1990s, primarily through activism for legal reform. Criminalization of sodomy prevented the LGBT community from freely mobilizing in public spaces, reporting acts of violence and harassment, and coming forth for testing and treatment of HIV/AIDS, and therefore was an impediment to their health and well-being. LGBT rights groups challenged the constitutionality of Section 377 on the basis of violating the right to equity (Article 14), nondiscrimination (Article 15), freedom (Article 19), and life and privacy (Article 21). Decriminalization of Section 377 has been a long, three-decade battle in the courts involving multiple judicial rulings. In 2009, the Delhi High Court decriminalized sodomy and declared Section 377 unconstitutional. The ruling was challenged by conservative and religious groups in the Supreme Court for going against social norms, threatening the institution of marriage, and promoting homosexual practices that would increase the spread of HIV/AIDS. In 2013, the Supreme Court heard the case, overturned the High Court ruling, and recriminalized Section 377. The Court declared that Section 377 was constitutional and applied equally to all persons. Thereafter, the Supreme Court passed three other judgments that directly impacted Section 377: It expanded the rape laws under Section 375 of the IPC to include penile nonvaginal acts (2013), provided legal rights to the transgender community as a nonbinary third gender (2014), and established the right to privacy under the Constitution (2017). The Supreme Court reassessed its decision, and on September 6, 2018, decriminalized Section 377 in a historic judgment. Legalizing queer sexuality was a positive step forward., yet considerable legal reform is still needed. The LGBT community still lack civil rights such as marriage, adoption, tax benefits, inheritance, and protection in the workplace. LGBT rights mobilization through the Indian courts has evolved from a focus on HIV/AIDS and health to broader human rights and privileges as equal citizens.

scholarly journals Dizzying Dialogue: Canadian Courts and the Continuing Justification of the Dispossession Of Aboriginal People

2011 ◽  
Vol 29 ◽  
pp. 55 ◽  
Author(s):  
D’Arcy Vermette
Keyword(s):  
Supreme Court ◽  
Aboriginal People ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Peuples Autochtones

Since Aboriginal rights have found protection within Canada’s Constitution, a new relationship has emerged between Canada’s Aboriginal Peoples and the Crown. This relationship is characterized by the need for “reconciliation.” In its growing jurisprudence, the Supreme Court of Canada applies reconciliation doctrine to several important Aboriginal claims. Each application, however, brings with it a restriction on Aboriginal rights. This paper argues that the Court’s conception of reconciliation is designed to facilitate the integration of Aboriginal peoples into larger society rather than to protect their collective interests. To demonstrate this argument, this paper examines the Supreme Court’s discussion of the doctrine of reconciliation from Sparrow (1990) to Little Salmon (2010).Depuis que les droits des autochtones sont protégés par la constitution canadienne, une nouvelle relation, ayant comme caractéristique le besoin de « réconciliation », a vu le jour entre les peuples autochtones du Canada et la Couronne. La Cour suprême du Canada a appliqué la doctrine de la réconciliation dans la série d’arrêts où elle s’est penchée sur plusieurs importantes revendications autochtones. Dans chaque cas, l’application de la doctrine de la réconciliation a cependant abouti à une restriction des droits des autochtones. Dans cet article, l’auteur soutient que, dans l’esprit de la Cour, la réconciliation vise à faciliter l’intégration des peuples autochtones dans la société en général plutôt qu’à protéger leurs intérêts collectifs. Pour étayer cette opinion, il examine l’analyse qu’a faite la Cour suprême de la doctrine de réconciliation de l’arrêt Sparrow (1990) à l’arrêt Little Salmon (2010).

Gut Reactions

2009 ◽  
Vol 20 (9) ◽  
pp. 1059-1063 ◽  
Author(s):  
Daniel C. Wisneski ◽  
Brad L. Lytle ◽  
Linda J. Skitka
Keyword(s):  
Supreme Court ◽  
Assisted Suicide ◽  
Legal Status ◽  
Controversial Issues ◽  
Physician Assisted Suicide ◽  
Moral Conviction ◽  
Nationally Representative ◽  
The Right ◽  
The U.S ◽  
Moral Convictions

Theory and research point to different ways moral conviction and religiosity connect to trust in political authorities to decide controversial issues of the day. Specifically, we predicted that stronger moral convictions would be associated with greater distrust in authorities such as the U.S. Supreme Court making the “right” decisions regarding controversial issues. Conversely, we predicted that stronger religiosity would be associated with greater trust in authorities. We tested these hypotheses using a survey of a nationally representative sample of Americans (N = 727) that assessed the degree to which people trusted the U.S. Supreme Court to rule on the legal status of physician-assisted suicide. Results indicated that greater religiosity was associated with greater trust in the U.S. Supreme Court to decide this issue, and that stronger moral convictions about physician-assisted suicide were associated with greater distrust in the U.S. Supreme Court to decide this issue. Also, the processes underlying religious trust and distrust based on moral convictions were more quick and visceral than slow and carefully considered.

scholarly journals Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test

1997 ◽  
Vol 36 (1) ◽  
pp. 149
Author(s):  
Leonard I. Rotman
Keyword(s):  
Supreme Court ◽  
Aboriginal Peoples ◽  
Federal Legislation ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Straightforward Application ◽  
The Supreme Court

In the case of R. v. Sparrow, the Supreme Court of Canada created a justificatory scheme for federal legislation that had the potential to derogate from the rights of the Aboriginal peoples that are protected by s. 35(1) of the Constitution Act, 1982. Since that time, the Sparrow test has been applied to both Aboriginal and treaty rights. The author suggests that the straightforward application of the Sparrow test to treaty rights is inappropriate because of the significant distinctions between Aboriginal and treaty rights. Where there is a need to balance treaty rights with competing rights, any justificatory standard to be applied ought to be consistent with the consensual basis of Crown- Native treaties.

scholarly journals Commentary on “Adhesion to Canadian Indian Treaties and the Lubicon Lake Dispute”

1992 ◽  
Vol 7 (2) ◽  
pp. 207-212
Author(s):  
Kent McNeil
Keyword(s):  
Supreme Court ◽  
Canadian Journal ◽  
Law And Society ◽  
Aboriginal Peoples ◽  
Western Canada ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Unexplored Area ◽  
Aboriginal Title

Thomas Flanagan's article on adhesion to Indian treaties in this issue of the Canadian Journal of Law and Society is a bold foray into a virtually unexplored area of aboriginal rights. Although adhesions to most of the eleven Numbered Treaties in northern and western Canada were common, as Flanagan points out, not much attention has been paid to them. The matter is nonetheless of major importance for many aboriginal peoples, as was demonstrated by the decision of the Supreme Court of Canada last year that the Teme-Augama Anishnabai had surrendered their aboriginal title by adhesion to the 1850 Robinson-Huron Treaty. There can be little doubt that the issue is going to arise more frequently as other aboriginal peoples challenge the application of treaties to their ancestral lands.

scholarly journals No Middle Ground: Ad Medium Filum Aquae, Aboriginal Fishing Rights, and the Supreme Court of Canada's Decisions in Nikal and Lewis

2014 ◽  
Vol 31 (3) ◽  
pp. 515-597
Author(s):  
Peggy J. Blair
Keyword(s):  
Supreme Court ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Middle Ground ◽  
Aboriginal Rights ◽  
Fishing Rights ◽  
The Supreme Court

This article will argue that in two decisions of the Supreme Court of Canada which considered the ad medium filum aquae presumptions, the Court wrongly concluded that exclusive aboriginal fishing rights were not "granted" by the Crown and therefore did not exist in waters adjacent to reserves. It will show that in both Nikal and Lewis, the Court relied on highly technical European laws which are inappropriate where aboriginal laws and perspectives are required to be taken into account. By accepting historically discriminatory policies of the Crown to prove the existence of aboriginal rights, it will be argued that the Court ignored the pre-existing rights and title of aboriginal peoples.

scholarly journals Fiduciary Relationship as Contemporary Colonialism

2012 ◽  
Vol 3 (2) ◽  
pp. 98-115
Author(s):  
Christina Yui Iwase
Keyword(s):  
North America ◽  
Supreme Court ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
Constitutional Protection ◽  
The Supreme Court ◽  
Recent Tendency

Aboriginal rights as inherent rights deriving from Aboriginal peoples’ historical occupation of North America (i.e. sovereignty) are recognized and affirmed in Section 35(1) of the Canadian Constitution Act, 1982. Despite the fact that this constitutional protection recognizes the sui generis nature of the Crown-Aboriginal relationship, there is a recent tendency in the Supreme Court of Canada to comprehend Aboriginal rights by characterizing the Crown-Aboriginal relationship as fiduciary. This paper discusses the danger of recognizing Aboriginal rights through the lens of a Crown-Aboriginal fiduciary relationship. This type of recognition entails: (1) authorizing excessive fiduciary discretion by the Crown, as opposed to focusing on its obligations; (2) failing to reflect the Aboriginal perspective on Aboriginal rights, which are derived from Aboriginal sovereignty; (3) fundamentally distorting the nature of Aboriginal rights by creating a myth that Aboriginal rights were created by the Canadian constitution; and (4) as a result, creating vulnerability on the Aboriginal side by making Aboriginal peoples tacitly consent to the Crown’s de facto sovereignty. If the Court’s characterization of the Crown-Aboriginal fiduciary relationship remains as it is now, the gap between the Crown’s understanding of Aboriginal rights and that of Aboriginal peoples may constitute a form of contemporary colonialism.

scholarly journals Aboriginal Title and Aboriginal Rights: What's the Connection

1997 ◽  
Vol 36 (1) ◽  
pp. 117 ◽  
Author(s):  
Kent McNeil
Keyword(s):  
Supreme Court ◽  
The Body ◽  
Legal Issues ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
Aboriginal Title ◽  
Judicial Treatment

The author presents an analysis and critique of the current law and judicial treatment of legal issues relating to the rights of Aboriginal peoples. His focus is an examination of the connection between Aboriginal rights and Aboriginal title to land. The author analyzes recent Supreme Court of Canada decisions which attempt to clarify the body of law in this area. R. v. Van der Peet, R. v. Adams, and R. v. C

The Right to Avoid Procreation and the Regulation of Pregnancy

2020 ◽  
Author(s):  
Elizabeth Sepper
Keyword(s):  
United States ◽  
Pregnant Women ◽  
Supreme Court ◽  
Legal Status ◽  
The United States ◽  
Constitutional Rights ◽  
Reproductive Freedom ◽  
American Perspective ◽  
Statutory Law ◽  
The Right

This chapter considers the right to avoid procreation and the regulation of pregnancy from an American perspective. In the United States, the right to avoid procreation finds protection in constitutional and statutory law. The Supreme Court’s decisions to recognize contraception and abortion as constitutional rights have permitted generations of women a measure of reproductive freedom. However, the constitutionalization of contraception, and abortion in particular, has brought to the fore deeper contestation about the moral (and legal) status of the fetus, women’s place in society, and the meaning of motherhood. These same issues play out in decisions about the protection and regulation of women during their pregnancies. Within the framework of Supreme Court precedent, the fifty states have adopted varying approaches to the right to abortion. The trend, however, has inclined toward greater restrictions in a growing number of states. At the same time, the current Court seems likely to dilute or reject the right to abortion, with consequences for contraception, protections for pregnant women at work, and criminal intervention during pregnancy.

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