Throughput Legitimacy and the Duty to Consult: The Limits of the Law to Produce Quality Interactions in British Columbia's EA Process

2020 ◽  
Vol 53 (3) ◽  
pp. 577-595
Author(s):  
Minh Do
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Indigenous Peoples ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
Environmental Assessments ◽  
The Supreme Court ◽  
The Law

AbstractThe duty to consult mandates that the Crown must consult affected Indigenous parties when Crown action may negatively impact Aboriginal rights or title claims. The Supreme Court of Canada (SCC) has emphasized that the duty should be characterized by honourable dealings and good faith negotiations. This article argues that the concept of throughput legitimacy can help evaluate the Crown's conduct in consultation. By analyzing 131 British Columbia Environmental Assessments (BC EAs), this article finds that the Crown struggles to uphold throughput legitimacy from the perspective of Indigenous peoples, particularly in the areas of transparency, accountability and effectiveness.

scholarly journals Settling the Fisheries: Pre-Confederation Crown Policy in Upper Canada and the Supreme Court's decisions in R. v. NIKAL and LEWIS

2014 ◽  
Vol 31 (1) ◽  
pp. 87-172
Author(s):  
Peggy J. Blair
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Upper Canada ◽  
Aboriginal Rights ◽  
Fishing Rights ◽  
The Supreme Court ◽  
The Subject

Although a casual reading of the Supreme Court of Canada's decisions in R. v. Nikal and R. v. Lewis might suggest otherwise, this article will argue that Court's decisions in two recent British Columbia aboriginal fishing cases do not apply in Ontario. In doing so, it will be shown that the Supreme Court of Canada relied on evidence of historic Crown policies towards aboriginal fishing rights in Upper Canada in the absence of appropriate context as to when, how and why those policies evolved. As a result, the Court wrongly concluded that fisheries could not be the subject of exclusive aboriginal rights.

Recent Developments in Canadian Aboriginal Law: Overview of Case Law and of Certain Principles of Aboriginal Law

2008 ◽  
Vol 10 (3) ◽  
pp. 319-350
Author(s):  
Patricia Ochman
Keyword(s):  
Supreme Court ◽  
Indigenous Peoples ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Key Concepts ◽  
Recent Developments ◽  
Aboriginal Law

AbstractThe author reviews the most recent judgments rendered by the Supreme Court of Canada and certain provincial courts, in order to provide an update in the sphere of Aboriginal law practice in Canada, destined mainly for foreign lawyers and academics. Throughout the review of those recent judgments, the author provides an overview of certain key principles and concepts of Canadian Aboriginal law. Besides providing an overview of recent judgments in the sphere of Aboriginal law, the author seeks to illustrate how meaningful the protection and recognition of Aboriginal rights and treaty rights are in practice, through the overview of key concepts and principles of Canadian Aboriginal law and how they were recently interpreted by Canadian courts. The author briefly addresses Canada's vote against the adoption of the U.N. Declaration on the Rights of Indigenous Peoples.

scholarly journals Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan

2018 ◽  
Author(s):  
Jason Chin
Keyword(s):  
British Columbia ◽  
Property Rights ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Experience ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

Proprietary estoppel provides one of equity’s most powerful remedies. Estoppel is an equitable doctrine which arises when one party acts on the reliance of the promise of another. The promise and corresponding reliance creates a quasi-contract with reliance acting as an alternative to the consideration usually required in contracts. Proprietary estoppel is distinct from other equitable estoppels in that a proprietary estoppel can act as a ‘sword’ and form the basis of a cause of action. If all of the parts of proprietary estoppel are made out, a court can modify or create property rights to satisfy the equity.With regard to the Canadian experience, the Court of Appeal for Ontario recently noted that proprietary estoppel has received “somewhat uneven treatment in Canada.” It is within this context that the Court of Appeal for British Columbia split on the proper scope for the Supreme Court of Canada. In Cowper-Smith v Morgan, the Supreme Court of Canada has both clarified the test for — and arguably expanded the scope of — proprietary estoppel in the context of promises exchanged between children over their mother’s care during her lifetime. The fact that a party lacks an interest in the disputed property at the time of the promise does not negate the obligation of fulfilling the promise. Instead, when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attach to that interest and protect the equity. This article will discuss the law of proprietary estoppel in other jurisdictions and how the Supreme Court of Canada has infused this remedy with greater flexibility to satisfy the equity.

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.

De facto and de jure Crown Sovereignty: Reconciliation and Legitimation at the Supreme Court of Canada

2018 ◽  
Vol 26 (4) ◽  
pp. 25
Author(s):  
Ryan Beaton
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
First Nations ◽  
Short Story ◽  
Attorney General ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Shed Light

This paper offers a short story of Crown sovereignty at the Supreme Court Canada in order to shed light on questions the Court has raised about the legitimacy of Crown sovereignty over territory claimed by First Nations. In skeletal form, the story is simple. The Crown — first Imperial British and later Canadian federal and provincial — asserted sovereignty over what is now Canadian territory, and Canadian courts (and the Judicial Committee of the Privy Council) accepted those assertions without question. Yet the Supreme Court of Canada has lately qualified Crown sovereignty in striking ways, perhaps most notably in speaking of “de facto Crown sovereignty” in reasons released in 2004.The purpose behind this qualification, in line with the Court’s Aboriginal rights and title cases since Calder v British Columbia (Attorney General), seems to be to encourage the Crown to negotiate modern treaties and settle outstandingAboriginal rights and title claims in order to perfect or legitimate Crown sovereignty. As Crown negotiations with First Nations stalled, however, the Court proceeded to develop its own framework for the procedural legitimation of Crown sovereignty, i.e. a framework of procedural safeguards designed to weed out “bad” exercises of Crown sovereignty from legitimate ones.

scholarly journals Protecting Aboriginal Rights and Title in Canada: A Growing Space for the United Nations Declaration on the Rights of Indigenous Peoples

2021 ◽  
Vol 18 ◽  
Author(s):  
Fumiya Nagai
Keyword(s):  
United Nations ◽  
Supreme Court ◽  
Indigenous Peoples ◽  
The Political ◽  
Supreme Court Of Canada ◽  
International Human Rights Law ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
The United Nations ◽  
United Nations Declaration

Abstract In 2014, the Supreme Court of Canada issued a landmark decision in Tsilhqot'in Nation v. British Columbia. In this decision, the Supreme Court recognised Aboriginal title to a specific territory for the first time, along with Aboriginal rights to hunt, trap, and engage in other practices. While international human rights law relating to Indigenous peoples, notably the United Nations Declaration on the Rights of Indigenous Peoples, was not directly relied upon in this decision, the subsequent negotiations and outcome documents have gradually included the UN Declaration into the discussion, in conjunction with the political and legal shift towards recognition and acceptance of it in Canada. By exploring the political and legal struggles of the Tsilhqot'in, particularly after the 2014 decision, this paper considers a growing space for the UN Declaration in defining the declared Aboriginal rights and title.

scholarly journals A Choice among Values: Theoretical and Historical Perspectives on the Defence of Necessity

1969 ◽  
pp. 848 ◽  
Author(s):  
Benjamin L. Berger
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Historical Perspectives ◽  
Theoretical Approaches ◽  
A Value ◽  
Canadian Law ◽  
The Supreme Court ◽  
History Of ◽  
The Law ◽  
The Way

The author explores various theoretical approaches to the defence of necessity, rejecting both excusatory conceptions of the defence and those based on the notion of moral involuntariness. Rather, the author argues that necessity is properly understood as a justificatory defence based on a lack of moral blameworthiness. After extensively surveying the history of the defence in Canadian law, the author critiques the way in which the Supreme Court of Canada has restricted the defence. He contrasts the current Canadian approach with the treatment of the defence in other jurisdictions and concludes that Canadian law would be served best by a robust defence of necessity, which would acknowledge that, in some circumstances, pursuit of a value of greater worth than the value of adherence to the law can be justified.

scholarly journals Feu la D.C.D. L'arrêt Miller et la peine de mort

2005 ◽  
Vol 18 (2-3) ◽  
pp. 567-576
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Right To Life ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
First Time

The Miller case, decided by the Supreme Court of Canada on October 5, 1976, puts the death penalty under the light of the Canadian Bill of Rights which formulates the right to life and the right to protection against cruel and unusual treatment or punishment. The following comment on the case relates to the interpretation given specific clauses of the Bill of Rights by the Court on that occasion. But it stresses especially the law that flows from the case about the compelling weight of the Bill of Rights over acts of Parliament enacted after the Bill came into force. In Miller, the Supreme Court expressed itself on the subject for the first time.

scholarly journals Was the Supreme Court right to change the law on the right to a speedy trial?

2017 ◽  
Vol 26 (3) ◽  
pp. 1
Author(s):  
Leonid Sirota
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Reasonable Time ◽  
Canadian Charter ◽  
The Supreme Court ◽  
The Law ◽  
The Right ◽  
Speedy Trial

In R v Jordan, the Supreme Court of Canada held, by a 5-4 majority and over the vigorous disagreement of the concurrence, that criminal prosecutions in which a trial does not conclude by a set deadline will be presumed to breach the right to be tried within a reasonable time, protected by section 11(b) of the Canadian Charter of Rights and Freedoms. The acceptable length of proceedings set out in the decision is of 18 months from the day charges are laid for cases that proceed without a preliminary inquiry, and 30 months otherwise. The Crown can still show that exceptional circumstances outside of its control have arisen and can explain — and excuse — a case taking longer than that, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but only by demonstrating not only that the delay is “markedly” greater than reasonable, but also that he or she diligently sought to have the case heard sooner.

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