scholarly journals Thin or Thick Inclusiveness? The Constitutional Duty to Consult and Accommodate First Nations in Canada

2019 ◽  
Vol 34 (1) ◽  
pp. 149-175
Author(s):  
Ian James Urquhart
Keyword(s):  
First Nations ◽  
Oil Sands ◽  
Aboriginal Peoples ◽  
Resource Exploitation ◽  
Judicial Interpretation ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
The Status ◽  
Natural Resource Exploitation ◽  
General Thrust

What has the addition of aboriginal rights to the Canadian constitution in 1982 meant for the place of First Nations’ interests in the Canadian constitutional order? This article considers this question in the context of natural resource exploitation – specifically, the exploitation of the oil or tar sands in Alberta. It details some of the leading jurisprudence surrounding Section 35 of the Constitution Act 1982, the section of the Constitution recognizing existing aboriginal and treaty rights. Arguably, Section 35 represented an important effort to improve the status of aboriginal peoples in Canada, to enhance the extent to which Canada included and respected the values and interests of First Nations. The article specifically considers how the judicial interpretation of the Crown’s duty to consult and accommodate aboriginal peoples is related to the theme of inclusivity. It argues that the general thrust of judicial interpretation has promoted a thin, or procedural, version of inclusiveness rather than a substantive, or thicker, one. Such a thicker version of inclusiveness would be one in which the pace of oil sands exploitation is moderated or halted in order to allow First Nations to engage in traditional activities connected intimately with aboriginal and treaty rights.

scholarly journals First Nations’ involvement in forest governance in Québec: The place for distinct consultation processes

2010 ◽  
Vol 86 (6) ◽  
pp. 730-741 ◽  
Author(s):  
Stephen Wyatt ◽  
Jean-François Fortier ◽  
Catherine Martineau-Delisle
Keyword(s):  
Forest Management ◽  
Public Participation ◽  
First Nations ◽  
Aboriginal Peoples ◽  
Forest Governance ◽  
Aboriginal Rights ◽  
Distinct Process ◽  
Participation Mechanisms ◽  
Special Case

Aboriginal peoples in Canada present a special case of citizen involvement in forest governance, with rights and statusthat go beyond those of other stakeholders and individuals. Increasingly, participation processes aimed specifically atAboriginal representatives are being used to encourage their involvement in forest management. This article asks whatwould be the characteristics of a distinct process that could respond to Aboriginal rights, needs and expectations. We doso by combining the results of a broad Québec-wide study with those from a case study of forestry participation in a singlecommunity. A total of 68 consultation processes are analyzed. These experiences enable the identification of severalcharacteristics of consultation processes used for First Nations. We also note that distinct consultations typically reflectthe same practices that are used more generally for public participation in forestry, raising the question of whether or notthese consultations truly respond to Aboriginal rights, needs and expectations in Québec.Key words: Aboriginal peoples, Aboriginal forestry, forest management, public participation mechanisms, duty to consult,Canada

Assimilation and Partition: How Settler Colonialism and Racial Capitalism Co-produce the Borders of Indigenous Economies

2020 ◽  
Vol 119 (2) ◽  
pp. 301-324
Author(s):  
Shiri Pasternak
Keyword(s):  
First Nations ◽  
Indigenous Peoples ◽  
Supreme Court Of Canada ◽  
Critical Material ◽  
Aboriginal Rights ◽  
Economic Rights ◽  
Racial Capitalism ◽  
The Status ◽  
History Of ◽  
Settler Colonization

The history of colonialism in Canada has meant both the partition of Indigenous peoples from participating (physically, politically, legally) in the economy and a relentless demand to become assimilated as liberal capitalist citizens. Assimilation and segregation are both tendencies of colonization that protect the interests of white capital. But their respective prevalence seems to depend on the regime of racial capitalism at play. This paper examines the intersection of settler colonization and racial capitalism to shed light on the status of Indigenous economic rights in Canada. I ask, to what extent are Indigenous peoples understood to have economic rights—defined here as the governing authority to manage their lands and resources—and, how we can we analyze these rights to better understand the conjoined meanings of colonialism and capitalism as systems of power today? In this paper, I look at two sites to address this problem: first, I examine how the Supreme Court of Canada has defined the “Aboriginal right” to commercial economies since the patriation of Aboriginal rights into the Constitution in 1982; and, second, I examine how these rights are configured through state resource revenue-sharing schemes with First Nations, in particular from extractive projects, over the past few years. Each case study provides critical material for analyzing the economic opportunities available to First Nations through democratic channels of state “recognition,” as well as when and why tensions between state policies of segregation and assimilation emerge.

scholarly journals Who Are the Metis People in Section 35(2)

1969 ◽  
pp. 351 ◽  
Author(s):  
Catherine Bell
Keyword(s):  
Homogeneous Group ◽  
Aboriginal Peoples ◽  
Federal Programs ◽  
Treaty Rights ◽  
Aboriginal Rights

Section 35 of the Constitution Act, 1982 recognizes the aboriginal and treaty rights of the aboriginal peoples. Section 35(2) defines "the Aboriginal peoples of Canada" as Indian, Inuit and Metis peoples. Although s. 35 may appear straightforward, the author points out its ambiguity. This article attempts to clarify it. The ambiguity stems from the fact that the section does not define the term "Metis" nor does it say whether the "Metis" have existing aboriginal rights recognized in s. 35(1). These questions arise because self-identifying Metis are not a homogeneous group that lend themselves to easy definition. Moreover they have traditionally been excluded from federal programs benefiting Indian peoples. The author examines the difficulties involved in defining the term 'Metis ' and analyzes some of the frameworks that have been suggested by various groups, including Metis organizations. She concludes that the term must be defined according to logical and political considerations in addition to self-identification based on racial, cultural and historical criteria.

Research as Reciprocity: Northern Cree Community-Based and Community-Engaged Research on Wild Food Contamination in Alberta’s Oil Sands Region

2017 ◽  
Vol 2 (1) ◽  
pp. 109-124
Author(s):  
Janelle Baker
Keyword(s):  
Land Use ◽  
First Nations ◽  
Oil Sands ◽  
Food Contamination ◽  
Wild Food ◽  
Treaty Rights ◽  
Community Based ◽  
Community Engaged Research ◽  
The People ◽  
Traditional Land Use

  In this paper I suggest that it is possible to participate in research as an act of reciprocity; when a community asks a researcher for help on a specific topic, the application of that researcher’s skills can be one of the ways they show appreciation for being welcomed into a place. I also argue that a researcher needs to be sensitive to, and participate in, systems of respect and reciprocity belonging to the people, ancestors, and sentient landscape of the place they are doing research. I critique the extraction of traditional knowledge in the traditional land use consultation industry in Alberta, Canada that is used in place of the Federal Government’s duty to consult First Nations regarding their Treaty rights. As an alternative to traditional land use assessments I provide a description of the methods used in projects that test Fort McKay First Nation and Bigstone Cree First Nation’s wild foods for contaminants resulting from oil sands activities in northern Alberta’s Treaty No. 8 region.

scholarly journals The Constitution’s Peoples: Approaching Community in the Context of Section 35 of the Constitution Act, 1982

2009 ◽  
Vol 54 (1) ◽  
pp. 1-43 ◽  
Author(s):  
Brent Olthuis
Keyword(s):  
Aboriginal Peoples ◽  
Individual Member ◽  
Canadian Society ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Aboriginal Community ◽  
Legal Principles ◽  
Unilateral Declaration ◽  
Aboriginal Law ◽  
Interpretive Process

Abstract Modern negotiations between the Crown (or private parties) and Canada’s Aboriginal peoples are largely based on the legal principles articulated in major court decisions. Yet those decisions have not yet confronted a fundamental question: how, in the first instance, do we determine which groups can lay claim to the Aboriginal and treaty rights “recognized and affirmed” by section 35 of the Constitution Act, 1982? The author argues that this question ought to form the theoretical cornerstone of the doctrine of Aboriginal and treaty rights. It is also of critical significance to the continuing process of reconciliation between the Aboriginal and non-Aboriginal elements of Canadian society. The interlocutors in this process must be identifiable. The community recognition needed to give effect to section 35’s inherently group-centred approach cannot be purely subjective or purely objective in nature. Neither a process of unilateral declaration nor one of pure observation can accurately identify the communities at issue under section 35. Rather, the inquiry requires an exercise of interpretation. To this end, the author proposes guidelines to focus and assist the interpretive process. This analysis ultimately entails a reconsideration of some of the prevailing orthodoxies in Aboriginal law jurisprudence, including the “test” for determining the existence of Aboriginal rights (from R. v. Van der Peet) and the notion that an individual member of a modern, rights-holding, Aboriginal community must prove an ancestral or genealogical link to a member of the group at some earlier time (from R. v. Powley).

scholarly journals FROM “INDIANS” TO “FIRST NATIONS”: CHANGING ANGLO-CANADIAN PERCEPTIONS OF THE NORTH AMERICAN INDIAN IN THE TWENTIETH CENTURY*

2011 ◽  
Vol 13 ◽  
pp. 2005
Author(s):  
Smith B. Donald
Keyword(s):  
Twentieth Century ◽  
First Nations ◽  
Aboriginal People ◽  
Aboriginal Peoples ◽  
Treaty Rights ◽  
The North ◽  
Academic Conference ◽  
Late Twentieth ◽  
Aboriginal Issues ◽  
Definition Of

A look at three university-organized conferences, the first in 1939, the second in 1966, and the most recent in 1997, reveals an increasing awareness of Aboriginal issues — particularly in the 1990s. From the mid- to the late twentieth century, Indians, now generally known as the First Nations, moved from the periphery into the centre of academic interest. The entrance of Aboriginal people, “the third solitude,” has altered completely the nature of Canada’s unity debate. Section 35 of the Constitution Act, 19821 affirms the existence of Aboriginal and treaty rights. The definition of “Aboriginal peoples of Canada” in the new constitution of 1982 now includes the Métis, as well as the First Nations and Inuit. Today, no academic conference in Canada on federalism, identities, and nationalism, can avoid discussion of Aboriginal Canada.

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.

First Nations, forest lands, and “aboriginal forestry” in Canada: from exclusion to comanagement and beyond

2008 ◽  
Vol 38 (2) ◽  
pp. 171-180 ◽  
Author(s):  
Stephen Wyatt
Keyword(s):  
Forest Management ◽  
First Nations ◽  
Traditional Knowledge ◽  
Aboriginal Peoples ◽  
Aboriginal Rights ◽  
New Form ◽  
Forest Lands ◽  
Forestry Practice ◽  
Forest Managers

The term “aboriginal forestry” is used increasingly to describe the evolving role of First Nations peoples in Canadian forestry over the last 30 years. This paper reviews a diversity of experiences and identifies issues that have important implications for governments, forest planners, and First Nations: a forestry regime that reflects the interests of governments and industry rather than those of First Nations; variable implementation of aboriginal rights in forestry practice; benefits and problems of economic partnerships; limitations on consultation, traditional knowledge, and comanagement in forestry; and finally, different forestry paradigms. Among these experiences and issues, we recognise different visions for the participation of First Nations peoples in Canadian forestry. At one end of the spectrum, “forestry excluding First Nations” is no longer accepted. The most common form may be “forestry by First Nations,” representing a role for First Nations within existing forestry regimes. Other options include “forestry for First Nations,” in which forest managers seek to incorporate aboriginal values and knowledge in management activities and “forestry with First Nations,” in which aboriginal peoples are equal partners in forest management. However, aboriginal forestry is better understood as a potential new form of forestry that uses knowledge and techniques drawn from both traditions and conventional forestry and is based on aboriginal rights, values, and institutions.

scholarly journals Indigenous Environmental Rights in Canada: The Right to Conservation Implicit in Treaty and Aboriginal Rights to Hunt, Fish, and Trap

2010 ◽  
pp. 959 ◽  
Author(s):  
Lynda M. Collins ◽  
Meghan Murtha
Keyword(s):  
Aboriginal Peoples ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Environmental Rights ◽  
Environmental Preservation ◽  
General Law ◽  
Central Argument ◽  
The Right ◽  
Subsistence Activities

This article is an exploration of Aboriginal and treaty rights strategies for protecting Indigenous environmental rights in Canada. The analysis begins with an outline of the problem, and the shortcomings of the available general law avenues. The authors then argue for the existence of a constitutionalized right to environmental preservation implicit in treaty and Aboriginal rights to hunt, fish, and trap. The article explores the theoretical, historical, and precedential support for this proposition. The central argument is that in securing the right to hunt, fish, and trap, Aboriginal peoples were in fact contracting for the continued existence of their traditional subsistence activities. These practices could not survive without the preservation of the ecosystems on which they depend, and the harvesting rights must therefore be seen to encompass a right to such preservation. Examination of the specific histories of treaty-making in Canada reveals that in many if not most cases, both the Crown and the Aboriginal signatories understood this substantive protection to be a part of the treaty guarantees. The authors then present a brief articulation of the corresponding Aboriginal right to conservation.

PRESERVING AND PROMOTING LOCAL KNOWLEDGE IN ENVIRONMENTAL PROTECTION AND NATURAL RESOURCE EXPLOITATION AND USE OF ETHNIC MINORITIES IN THE NORTHERN MOUNTAINOUS REGION

2017 ◽  
Author(s):  
Vu Thi Thanh Minh
Keyword(s):  
Environmental Protection ◽  
Ethnic Minorities ◽  
Natural Resource ◽  
Local Knowledge ◽  
Production Efficiency ◽  
Customary Law ◽  
Mountainous Region ◽  
Resource Exploitation ◽  
Technological Advances ◽  
Natural Resource Exploitation

Ethnic minorities in the Northern Mountainous Region not only use the application of scientific-technological advances but also experiences of the community to enhance production efficiency and environmental protection. Local knowledge (TTDP) of ethnic minorities is useful for environmental protection and natural resource exploitation & use. These are environmental & weather knowledge; farming experiences on sloping and forestry land; knowledge about environmental protection and natural resource exploitation & use especially how to protect precious resources by specific rules/regulations of customary law. In the context of declining natural resources, TTDP is eroded, captured, or illegally exploited. There should be measures in order to preserve and promote TTDP as well as raise the awareness of the community about its important role.

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