Eliminating Indigenous Jurisdictions: Federalism, the Supreme Court of Canada, and Territorial Rationalities of Power

2016 ◽  
Vol 49 (3) ◽  
pp. 411-431 ◽  
Author(s):  
Michael McCrossan ◽  
Kiera L. Ladner
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
Aboriginal Title ◽  
Judicial Reasoning ◽  
Game Changer

AbstractThis paper examines judicial reasoning in the area of Aboriginal title, paying particular attention to the Supreme Court of Canada's Tsilhqot'in Nation (2014) decision. While the decision has been heralded as a ‘game-changer’ within media circles and legal commentaries for its recognition of a claim to title under section 35(1) of the Constitution Act, 1982, the authors argue that the decision does not depart substantially from prior judicial logics predicated upon the production of Crown sovereignty and the denial of Indigenous legal orders. In fact, the authors argue that the decision displays a clear judicial orientation towards the present jurisdictional divisions of Canadian federalism which not only serves to eliminate Indigenous legal orders and territorial responsibilities, but also provides federal and provincial governments with enhanced powers of ‘incursion’ into Aboriginal title lands.

scholarly journals The Impact of the Supreme Court of Canada on Intergovernmental Relations

Federalism-E ◽  
2018 ◽  
Vol 19 (1) ◽  
Author(s):  
Benjamin Goldlist
Keyword(s):  
Supreme Court ◽  
Intergovernmental Relations ◽  
Democratic Legitimacy ◽  
Supreme Court Of Canada ◽  
Political Resources ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
Constitutional Adjudication ◽  
The Impact

The role of the Supreme Court in the practice of Canadian federalism, specifically the extent of its power and the effects of that power, is a hotly contested issue in Canadian political science. While some scholars have argued that the Court has taken on too political of a role that must be restricted, this paper develops the Court as a constitutional ‘umpire,’ whose rulings serve the important, but limited, functions of allocating political resources to incentivize negotiation, and establishing jurisdictional boundaries for said negotiations, leaving specific policy decisions to political, as opposed to legal, actors. Concerning the net outcome of the Court’s jurisprudence on the distribution of legislative powers, this paper illustrates the Court’s overall balancing approach, with grants of power to one level of government met with increases in authority to the other, in all major policy areas. Thus, ultimately shown to embrace both a limited and impartial approach to constitutional adjudication, the Court has done much to enhance its democratic legitimacy and constitutional utility.

Reconciling Rights and Federalism during Review of the Charter of Rights and Freedoms: The Supreme Court of Canada and the Centralization Thesis, 1982 to 1999

2001 ◽  
Vol 34 (2) ◽  
pp. 321-355 ◽  
Author(s):  
James B. Kelly
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
Administration Of Justice ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Relationship ◽  
Provincial Autonomy

This article considers the relationship between rights and federalism in the Supreme Court of Canada's review of cases invoking the Canadian Charter of Rights and Freedoms. It considers whether the Supreme Court of Canada has compromised provincial autonomy by establishing Canada-wide standards in provincial areas of jurisdiction. It suggests that the centralization thesis associated with judicial review on Charter grounds is inconclusive, and combining several processes under the rubric of centralization, it misrepresents the Charter's effect on Canadian federalism and provincial autonomy. Further, the centralization thesis has lost much momentum during the course of Charter review, and, as a result, is a limited approach to understanding the relationship between rights and federalism in Canada. Specifically, the Supreme Court of Canada has demonstrated sensitivity to federalism in its Charter jurisprudence, most evident in a complex jurisprudence that has served to offset the centralization thesis and its implications for provincial autonomy. This threepart federalism jurisprudence is federalism as gatekeeper, an explicit federalism jurisprudence and an implicit federalism jurisprudence, which is most evident in the relationship between criminal rights and provincial responsibility for the administration of justice. This article demonstrates that the Court's approach to Charter review has seen a reconciliation between rights and federalism, most evident in the declining importance of the centralization thesis and the growing importance of the three-part federalism jurisprudence during Charter review. This sensitivity to federalism has existed since the beginning of the Court's Charter jurisprudence but has largely been overshadowed by the dominance of the centralization thesis in the Charter debate.

Aboriginal Rights and Sustainable Development in Canada

1999 ◽  
Vol 48 (1) ◽  
pp. 176-186
Author(s):  
Jane Matthews Glenn ◽  
Anne C. Drost
Keyword(s):  
British Columbia ◽  
Sustainable Development ◽  
Supreme Court ◽  
Agricultural Area ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Aboriginal Title

This article explores briefly the relation between aboriginal rights and sustainable development in Canada, using as a vehicle for discussion the decision of the Supreme Court of Canada in Delgamuukw v. British Columbia.1 This case involved claims by the Houses of Gitksan and Wet'suwet'en, comprising some 6,000 to 7,000 persons, to aboriginal title over separate portions of approximately 58,000 square kilometres of land in the interior of British Columbia. The territory is a rich agricultural area with vast forests and abundant wildlife.

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.

The Expanded Role of the Judiciary: The Supreme Court and the Charter

Federalism-E ◽  
1969 ◽  
Vol 15 (1) ◽  
pp. 65-77
Author(s):  
Jeremy Cavan
Keyword(s):  
Supreme Court ◽  
Legal Framework ◽  
Supreme Court Of Canada ◽  
House Of Commons ◽  
Supreme Court Ruling ◽  
Stare Decisis ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
Policy Measures

The introduction of the Charter of Rights and Freedoms and the Constitution Act, 1982 marked a decisive moment for Canadian federalism. In particular, it greatly expanded the role of the judiciary and the Supreme Court of Canada. The Charter created a legal framework of rights which changed the role of the courts in the Canadian political landscape. As a result, governments have been dissuaded from policy measures which might invoke legal action as a potential Supreme Court ruling is considered stare decisis 170 and could be potentially damaging to the confidence of the House of Commons and its popular support.[...]

scholarly journals Testing the Waters : Aboriginal Title Claims to Water Spaces and Submerged Lands – An Overview

2005 ◽  
Vol 45 (4) ◽  
pp. 659-692
Author(s):  
Paula Quig
Keyword(s):  
Great Lakes ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Dry Land ◽  
The Supreme Court ◽  
Aboriginal Title ◽  
Aboriginal Groups ◽  
Near Future

This article provides an overview of some of the intriguing issues raised by Aboriginal title claims to water spaces and submerged lands. While the Supreme Court of Canada articulated a test for proof of Aboriginal title in the 1997 Delgamuukw decision, they did not squarely address questions relating to the viability of such claims outside of the “dry land” context. Recently, a number of Aboriginal groups from across Canada have filed claims seeking declarations of Aboriginal title in areas such as the foreshore, the sea, the seabed, and the Great Lakes and their connecting waterways. Similar claims might also surface in Quebec in the near future, in areas such as the St. Lawrence Seaway. The author guides the reader through international developments in this area, highlights some key legal and evidentiary issues which will require serious reflection in the near future, and provides some final thoughts with respect to the fundamental role which the goal of reconciliation and the principle of consultation will undoubtedly play in Aboriginal title cases to water spaces and submerged lands.

Archaeological Evidence in the Tsilhqot’in Decision

2020 ◽  
Vol 44 (2) ◽  
pp. 155-184
Author(s):  
Erin A. Hogg ◽  
John R. Welch
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
Supreme Court Of Canada ◽  
Trial Court ◽  
Archaeological Evidence ◽  
Archaeological Data ◽  
Legal Standards ◽  
The Supreme Court ◽  
Judicial Proceedings ◽  
Aboriginal Title

The 2014 Supreme Court of Canada Tsilhqot’in decision provides the first declaration of Aboriginal title to Canadian soil. Aboriginal title requires evidence of continuous, exclusive, and sufficient occupation of a territory. In the earlier trial before the British Columbia Supreme Court the Tsilhqot’in First Nations presented a substantial corpus of archaeological evidence to complement historical evidence, oral histories, and Tsilhqot’in testimony regarding the locations of Tsilhqot’in villages and the type and duration of their occupations. We examined this body of archaeological data in the context of the judicial proceedings to understand which data were considered favourably by the court and why. We found that the trial court accepted archaeological data as evidence of occupation on definite tracts of land at the time of sovereignty, agreeing with the Tsilhqot’in plaintiffs that the evidence met the legal standards for continuous and sufficient occupation. Because the Supreme Court Tsilhqot’in decision is the paramount statement on Aboriginal title, the treatment and consideration of archaeological data in that decision will likely set standards for and guide improvements to the applications of archaeological data in title cases.

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