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 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).

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 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 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

scholarly journals The Tin Ear of the Court: Ktunaxa Nation and the Foundation of the Duty to Consult

2019 ◽  
Author(s):  
Robert Hamilton ◽  
Joshua Nichols
Keyword(s):  
Conflict Resolution ◽  
Supreme Court ◽  
Bargaining Power ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Similar Relationship ◽  
Aboriginal Rights ◽  
Useful Components ◽  
The Supreme Court ◽  
The Relationship

The recent Ktunaxa Nation decision of the Supreme Court of Canada provides an opportunity to discuss the fundamental legal presumptions that underlie the Crown’s duty to consult and accommodate Aboriginal peoples. The jurisprudence in this area has been based on a “thick” conception of Crown sovereignty as including legislative power and underlying title in relation to Aboriginal lands. This, in the Supreme Court’s view, justifies the possibility of the unilateral infringement of Aboriginal rights. This framework assumes that the relationship between the Crown and Aboriginal peoples is a sovereign-to-subjects one. This assumption, however, lacks a legal and factual basis. Conversely, Aboriginal peoples articulate their claims in the language of inherent jurisdiction within a nation-to nation relationship. If the Supreme Court acknowledged that the relationship between the parties is indeed nation-to-nation, the appropriate doctrine would no longer be a duty to consult and accommodate. Following the approach to a similar relationship outlined by the Supreme Court in the Secession Reference, the appropriate model would be a generative duty to negotiate. This article sets a path to a model that preserves the useful components of the duty to consult while providing a remedy to the distributional inequity in bargaining power created under the current framework, thereby opening avenues for effective conflict resolution.

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.

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.

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