Part III Indigenous Peoples and the Canadian Constitution, C Indigenous Peoples and the Constitution Act, 1982, Ch.15 The Form and Substance of Aboriginal Title: Assimilation, Recognition, Reconciliation

2017 ◽  
Author(s):  
Macklem Patrick
Keyword(s):  
Indigenous Peoples ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Constitutional Order ◽  
Canadian Law ◽  
Aboriginal Title ◽  
Ways Of Life

This chapter highlights law’s participation in the colonizing projects that initiated the establishment of the Canadian constitutional order. Imperial and subsequently Canadian law deemed legally insignificant the deep connections that Indigenous peoples had with their ancestral territories, and imposed alien norms of conduct on diverse Indigenous ways of life. In doing so, law legitimated the manifold political, social, and economic acts of dispossession and dislocation that collectively bear the label of colonialism. The constitutional entrenchment of Aboriginal and treaty rights in 1982 formally recognized a distinctive constitutional relationship between Indigenous peoples and Canada. The judiciary has begun to see the purpose of formal constitutional recognition to be a process of substantive constitutional reconciliation of the interests of Canada and Indigenous peoples. This chapter argues that constitutional reconciliation can only commence by comprehending Aboriginal rights and title as protecting Indigenous interests associated with culture, territory, treaties, and sovereignty in robust terms.

Part III Indigenous Peoples and the Canadian Constitution, B Treaties, Ch.14 Treaties as Constitutional Agreements

2017 ◽  
Author(s):  
Grammond Sébastien
Keyword(s):  
Indigenous Peoples ◽  
Initial Period ◽  
Land Claims ◽  
Treaty Rights ◽  
Constitutional Protection ◽  
Canadian Law ◽  
History Of ◽  
Aboriginal Title ◽  
Oral Evidence ◽  
Domestic Law

This chapter reviews the history of treaty-making with the Indigenous peoples of Canada. After an initial period of roughly equal relationships, colonial authorities increasingly used treaties as a domestic law concept aimed at securing control over Indigenous land. The practice was continued after Confederation, but there appears to be a major misunderstanding as to the terms of those treaties, in particular as to the purported extinguishment of Aboriginal title. After a 50-year hiatus, treaty-making resumed in 1975 with the signing of ‘land claims agreements’ in most of the Canadian north. These agreements not only provide for the sharing of land, they also contain detailed provisions with respect to co-management of natural resources and, in some cases, self-government. Canadian law now affords statutory and constitutional protection to treaty rights, and courts are prepared to take into account extrinsic and oral evidence in interpreting treaties.

Canadian Supreme Court: Delgamuukw V. British Columbia

1998 ◽  
Vol 37 (2) ◽  
pp. 261-333
Author(s):  
Catherine Bell
Keyword(s):  
British Columbia ◽  
Legal Reasoning ◽  
Legal Rights ◽  
Aboriginal Rights ◽  
Canadian Law ◽  
Aboriginal Title ◽  
British Colonial ◽  
Potential Impact ◽  
British Colonies

Delgamuukw v. B.C. is a pivotal decision in the evolution of Canadian law on Aboriginal rights.Numerous meetings, round-tables, workshops and conferences have been held to discuss its potential impact on litigation and negotiation.1 Delgamuukw has also served as a vehicle for discussion of more fundamental issues such as the appropriateness of selecting the judicial forum to resolve Aboriginal title claims and the role of legal reasoning in furthering the process of colonization.2 Given the influence of British colonial law on the development of Aboriginal rights jurisprudence in former British colonies and the restrictions placed by evidentiary presumptions originating in English courts, Delgamuukw may also have persuasive precedential value outside of Canada. In particular, the Supreme Court's elaboration of the concept of Aboriginal rights and its discussion of the weight to be given to oral histories may influence other commonwealth courts which face the demanding task of accommodating the rights of colonized peoples within a contemporary political and legal rights regime.3

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.

On the breach: Identifying infringements of section 35 rights

2021 ◽  
Author(s):  
Kerry Wilkins
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Substitution Effects ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Canadian Law ◽  
The Supreme Court ◽  
Inclusive Approach ◽  
Critical Scrutiny

Section 35 of the Constitution Act, 1982, the Supreme Court of Canada has said, protects existing Aboriginal and treaty rights from unjustified infringement at the hands of federal and provincial legislatures and governments. To give meaningful effect to section 35’s protection, we need, therefore, to understand what counts as infringement of such rights and why. The Supreme Court’s own jurisprudence to date on this question, alas, disappoints; it does not withstand close critical scrutiny. This article calls attention to several shortcomings and inconsistencies in that jurisprudence and proposes for initial consideration a more inclusive approach to infringement identification, one that draws a sharper distinction between the infringement and justification inquiries. Adoption of such an approach, however, could have unwelcome substitution effects, prompting cautious courts to be more selective when asked to authenticate future claims of Aboriginal right, more penurious when construing the constitutionally protected scope of particular treaty or Aboriginal rights and/or more generous to governments during the justification inquiry. If the goal is to optimize the protection that Canadian constitutional law affords to treaty and Aboriginal rights, we shall need to be mindful of the interdependence among the authentication, infringement, and justification inquiries, and we shall need to understand much more clearly than we currently do just where the outer limits are beyond which mainstream Canadian law cannot, or will not, countenance Indigenous ways and why.

scholarly journals The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today

2016 ◽  
Vol 61 (4) ◽  
pp. 847-884 ◽  
Author(s):  
Aaron Mills
Keyword(s):  
Indigenous Peoples ◽  
Constitutional Law ◽  
Legal Education ◽  
Law Schools ◽  
Constitutional Order ◽  
Indigenous Law ◽  
Recent Interest ◽  
Canadian Law ◽  
Liberal Constitutionalism ◽  
Intensive Course

What ultimately counts as law and as the legitimate processes of its generation, adjustment, and destruction are both empowered and constrained by the constitutional order from which they derive life. A constitutional framework, in turn, reflects unique understandings about what there is and how one can know: a lifeworld. Reflecting on his own experience, the author emphasizes how legal education harms when it fails to acknowledge and to begin to articulate the lifeworld beneath any system of law it aims to impart. There are serious questions to be taken up in considering whether we may move law between constitutional contexts without subjugating the law of one community to the lifeworld of another. The author asserts this is particularly important with respect to Canadian law schools’ recent interest in teaching Indigenous peoples’ own systems of law. He argues that Canadian (liberal) and Indigenous (what he calls “rooted”) constitutionalisms are not only different, but different in kind. As such, efforts to articulate Indigenous law within the forms of liberal constitutionalism ignore or trivialize the ongoing significance of Indigenous lifeworlds to governance of Indigenous lives today. Many Indigenous legal scholars are adverting to this tension, moving on from simply making space for Indigenous law in the academy to asking whether and how this may be done. The author briefly canvasses Indigenous theorists (students, professors, lawyers, and elders) whose works present Indigenous systems of law within their own lifeworlds. Tracking the lifeworld-law relationship, he proposes three reforms to legal education in Canada: (1) teach that all law is storied; (2) teach that Canadian constitutional law is a species of liberal constitutionalism; (3) require students to enrol in a prerequisite on an Indigenous people’s constitutional order before enrolling in a course on their law. By way of example, he concludes with the syllabus for an intensive course he designed and taught on Anishinaabe constitutionalism.

scholarly journals Achieving Certainty in Treaties with Indigenous Peoples: Small Steps Towards Adopting Elements of Recognition

2019 ◽  
Vol 28 (2) ◽  
pp. 1-12
Author(s):  
John Helis
Keyword(s):  
Indigenous Peoples ◽  
Land Claims ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Negotiated Agreements ◽  
Novel Approach ◽  
Indigenous Group ◽  
James Bay Cree ◽  
The Common ◽  
The Government

The Eeyou Marine Region Land Claims Agreement (EMRLCA) with the James Bay Cree of northern Quebec contains a novel approach to achieving certainty in treaties with Indigenous peoples. For the federal government, the certainty of having the rights of an Indigenous nation exhaustively set out in one document is the benefit derived from treaties. Unlike Aboriginal rights, which the government views as ambiguous and hard to define, treaties are negotiated agreements that clearly outline rights. The goal of government when negotiating treaties is therefore to ensure that the Indigenous group can only exercise treaty rights and not their pre-existing Aboriginal rights which are recognized by the common law and the Constitution Act, 1982.

Part III Indigenous Peoples and the Canadian Constitution, C Indigenous Peoples and the Constitution Act, 1982, Ch.16 The Section 35 Duty to Consult

2017 ◽  
Author(s):  
Newman Dwight
Keyword(s):  
Informed Consent ◽  
Indigenous Peoples ◽  
Administrative Law ◽  
International Norms ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Future Directions ◽  
Complex Relationships

This chapter examines the duty to consult doctrine, which is a particularly significant doctrine under Canada’s section 35 Aboriginal rights clause that is triggered hundreds of thousands of times a year. Since a series of cases in 2004, this doctrine has taken a particular proactive form in which the honour of the Crown leads to government duties of consultation when government decisions potentially impact on Aboriginal or treaty rights. This chapter explains the purposes and origins of this duty, considers its relationship to developing international norms on consultation and FPIC (free, prior, and informed consent), and considers a number of controversies that have emerged on the scope of its application. The chapter also examines the complex relationships of the duty to consult to administrative law contexts before turning to some final comments on potential future directions for the duty.

The Impact of Aboriginal Interests Upon Proposed Pipeline Projects

2004 ◽  
Author(s):  
Tara L. Campbell ◽  
Heather L. Treacy
Keyword(s):  
British Columbia ◽  
Aboriginal People ◽  
Third Party ◽  
Development Projects ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Consultation Process ◽  
Judicial Decisions ◽  
Aboriginal Title ◽  
The Impact

This paper will seek to address the rapidly evolving issues relating to the impact of aboriginal interests upon resource development projects. In particular, this paper will address the interaction between aboriginal interests and pipeline projects and recent judicial decisions that have impacted upon this interaction. This paper will specifically discuss the extent of consultation obligations with aboriginal people and strategies that may be employed by proponents of pipeline projects. More specifically, this paper will address the following: Distinctions between various types of constitutionally protected aboriginal interests, including, treaty rights (both historic treaties and comprehensive land claim agreements), aboriginal rights, including aboriginal title, and Me´tis rights; Understanding the obligations of government and third party resource developers to consult with aboriginal people, including consultation and accommodation of aboriginal interests and compensation issues; - Consultation as part of the regulatory approval processes for both provincially and federally regulated pipelines, including both National Energy Board requirements and provincial requirements (British Columbia and Alberta); and - The practical realities of consultation, including the scope of remedies for the unjustified infringement of aboriginal interests; and how to create a more effective consultation process and protect the interests of proponents of pipeline projects.

Extreme weather highlights longer-term Canada concerns

2022 ◽  
Keyword(s):  
Climate Change ◽  
Indigenous Peoples ◽  
Clean Energy ◽  
Focused Attention ◽  
Content Type ◽  
Weather Patterns ◽  
Extreme Cold ◽  
The Impact ◽  
Ways Of Life ◽  
Impacts Of Climate Change

Significance The extreme cold comes as the province is still dealing with the damage caused by unprecedented levels of heat and wildfires last summer and then record levels of rainfall and flooding in November. Its experience has focused attention on Canada’s wider vulnerability to the impact of shifting weather patterns and climate change. Impacts The natural resource sectors that are vital to Canada’s economy face an increasingly difficult environment for extraction. Indigenous peoples across the country will see their traditional ways of life further disrupted by climate change. The increasingly evident impacts of climate change on day-to-day life will see voters demand greater action from government. Significant investment in green initiatives, clean energy and climate resiliency initiatives will boost green industries.

Aboriginal rights and title for archaeologists: A history of archaeological evidence in Canadian litigation

2020 ◽  
Vol 20 (2) ◽  
pp. 214-241
Author(s):  
Erin A Hogg ◽  
John R Welch
Keyword(s):  
Sufficient Evidence ◽  
Oral Histories ◽  
Aboriginal Rights ◽  
Archaeological Evidence ◽  
Archaeological Data ◽  
Different Types ◽  
History Of ◽  
Aboriginal Title ◽  
Temporal Dimensions ◽  
Material Evidence

Archaeological evidence has been used to assess pre-contact occupation and use of land since the first modern Aboriginal title claim in Canada. Archaeology’s ability to alternately challenge, support, and add substantive spatial and temporal dimensions to oral histories and documentary histories makes it a crucial tool in the resolution of Aboriginal rights and title. This article assesses how archaeological evidence has been considered in Aboriginal rights and title litigation in Canada, both over time and in different types of cases. The examination indicates that archaeological data have been judged to be sufficient evidence of pre-contact occupation and use. However, some limitations inherent in archaeological data, especially challenges in archaeology’s capacities to demonstrate continuous occupation and exclude possibilities for co-occupation, mean that it is best used in conjunction with ethnographies, oral histories, and historical documents. So long as courts affirm that it is the sole material evidence of pre-contact occupation, archaeological data will continue to be considered in future litigation.

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