scholarly journals Treaty No. 9 and the Question of “Unceded” Land South of the Albany River in Subarctic Ontario, Canada

ARCTIC ◽  
2021 ◽  
Vol 74 (3) ◽  
pp. 372-395
Author(s):  
Stephen R.J. Tsuji ◽  
Leonard J.S. Tsuji
Keyword(s):  
Common Law ◽  
First Nation ◽  
James Bay ◽  
The Common ◽  
The Government

The James Bay Treaty-Treaty No. 9 was unique among the numbered treaties of Canada in that there was a need for the concurrence of the Province of Ontario. Last-minute negotiations by the Dominion of Canada to gain said concurrence led to an agreement with the Province of Ontario, and this agreement became part of the Treaty No. 9 package at Ontario’s insistence. However, since the agreement was not executed until after the Treaty No. 9 expedition had left for the field, an incomplete Treaty No. 9 package that lacked the agreement was presented to and signed by the First Nation groups in 1905. Furthermore, spaces had been left in the vellum copies of Treaty No. 9 and the agreement to add in the date of the agreement when fully executed. In the spaces that were left for this purpose, the date of the agreement was backdated to 3 July. This act of deception was suggested by the Treasurer of the Government of Ontario, A. Matheson in order to date of the agreement earlier than the date in the Treaty. Thus, the common law legality of the Treaty No. 9 package must be questioned, especially since officials of the Governments of Canada and Ontario left documentation of their deception. Without the agreement being attached as specified in the Treaty No. 9 document that left Ottawa in 1905, consideration of the terms of the agreement by the First Nation signatories of the treaty could not have occurred prior to signing. It follows that there exists a question of whether the land south of the Albany River was ever ceded in Treaty No. 9 from a common law perspective, unless documentation can be presented indicating that the complete Treaty No. 9 package was presented to the First Nation signatories; the written record indicates otherwise. In the end, the courts will have to decide the legality of Treaty No. 9 from a common law perspective. 

scholarly journals Akimiski Island, Nunavut, Canada: The Use of Cree Oral History and Sea-Level Retrodiction to Resolve Aboriginal Title

ARCTIC ◽  
2020 ◽  
Vol 73 (4) ◽  
pp. 421-432
Author(s):  
Leonard J.S. Tsuji ◽  
Zachariah General ◽  
Stephen R.J. Tsuji ◽  
Evelyn Powell ◽  
Konstantin Latychev ◽  
...  
Keyword(s):  
Oral History ◽  
Sea Level ◽  
Common Law ◽  
James Bay ◽  
Traditional Use ◽  
Aboriginal Title ◽  
The Common ◽  
The Government ◽  
Government Of Canada ◽  
Akimiski Island

On 1 April 1999, Akimiski Island of the western James Bay region of northern Ontario, Canada, was included in the newly formed territory of Nunavut, Canada—an Inuit-dominated territory—even though the Inuit had never asserted Aboriginal title to the island. By contrast, the Omushkegowuk Cree of the western James Bay region have asserted Aboriginal title to Akimiski Island. The Government of Canada by their action (or inaction) has reversed the onus of responsibility for proof of Aboriginal title from the Inuit to the Cree. In other words, the Government of Canada did not follow their own guidelines and the common-law test for proof of Aboriginal title. In this paper, we documented and employed Cree oral history as well as a sea-level retrodiction (based on state-of-the-art numerical modeling of past sea-level changes in James Bay), which incorporated a modified ICE-6G ice history and a 3-D model of Earth structure, to establish that criterion 2 of the test for Aboriginal title has now been fully met. In other words, Cree traditional use and occupancy of Akimiski Island was considered sufficiently factual at the time of assertion of sovereignty by European nations. As all the criteria of the common-law test for proof of Aboriginal title in Canada, with respect to Akimiski Island, have now been addressed, the Cree have sufficient basis to initiate the process of a formal land claim.

scholarly journals Te ao Māori in a "Sympathetic" Legal Regime: the Use of Māori Concepts in Legislation

2009 ◽  
Vol 40 (2) ◽  
pp. 531 ◽  
Author(s):  
Arnu Turvey
Keyword(s):  
Decision Making ◽  
Cultural Identity ◽  
Common Law ◽  
Legal Regime ◽  
Treaty Of Waitangi ◽  
Decision Making Processes ◽  
Practical Effect ◽  
The Common ◽  
The Government ◽  
Positive Step

The incorporation of Māori concepts into legislation has been one of several methods the government has employed to acknowledge and promote Māori cultural identity and give practical effect to the Treaty of Waitangi within its legislative frameworks.  While legal recognition of Māori concepts may have appeared as a positive step towards the creation of a mutually beneficial level of bicultural discourse in the government's management frameworks, in practice they have been the source of a new set of challenges. By transplanting Māori concepts directly into legislation, Māori ideas must become operational parts of Western regimes; concepts which are to be recognised and given effect to within the decision-making processes of bodies charged with the administration of particular legislation as well as the courts. Drawing on Commons' observations about the nature of artificial selection - the process by which the meaning of ideas and language is consciously or subconsciously manipulated by the group in power in order to advance its own interests, it becomes evident that, in the context of the common law legal system, Māori concepts have become detached from their original purpose and meaning.

Knowing Habeas Corpus When You See It

2018 ◽  
pp. 9-11
Author(s):  
Eric M. Freedman
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Habeas Corpus ◽  
The Supreme Court ◽  
The Common ◽  
The Government ◽  
Enemy Combatant

Viewing habeas corpus through a legal lens frequently misleads. The common law “rule” against controverting the return to writs of habeas corpus was commonly evaded through devices permitting judicial examination of the underlying facts and law. In many cases concluding “writ denied,” the prisoner in fact obtained “habeas corpus without the writ.” Failure to understand this explains why the Fourth Circuit performed so badly in rejecting the challenge of Yaser Hamdi to his detention as an enemy combatant. The Supreme Court very properly reversed that decision in Hamdi v. Rumsfeld (2004), resulting in the prisoner’s speedy release when the government was confronted with having to actually prove in court the claims it had made on paper.

The Rule of Law and Good Governance

2019 ◽  
pp. 75-90
Author(s):  
Henk Addink
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Common Law ◽  
The State ◽  
Fundamental Rights ◽  
The Rule Of Law ◽  
Judicial Control ◽  
The Common ◽  
The Government ◽  
Continental Tradition

The concept of the rule of law has different—common law and continental—historical roots and traditional perspectives. The common law tradition is more focused on limiting the powers of the state, whereas the continental tradition focuses on not just to limit but also to empower the government. But both systems have a focus on the rule of law. The rule of law in the classical liberal tradition is based on four elements: legality, division and balance of powers, independent judicial control, and protection of fundamental rights. The differences between rule of law and rechtsstaat are: different concepts of the state, mixed legal systems and different approaches of a constitution, and different perspectives on human rights. There are two levels of development: a model in which law is a way of structuring and restricting the power of the state, the second level is more subjective and has important individual positions. The concept of good governance related to these developments makes clear the need to broaden the concept of the rule of law.

scholarly journals The Common Law of War

2017 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Natural Law ◽  
Common Law ◽  
Armed Conflicts ◽  
Law Of War ◽  
Early American ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Military Commissions ◽  
The Government

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the "common law of war," which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term "common law of war"in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the "common law of war" referred to a branch of the law of nations that applied during internal armed conflicts, such as civil wars with non-state actors. This body of law was called "common," not because it was extended or elaborated by the common law method of judge-applied law, but rather because it was "common" to all mankind by virtue of natural law, and thus even applied to internal actors, such as rebel forces, who were not otherwise bound by international law as formal states were. By recapturing this lost definition of the common law of war, this Article casts some doubt on the U.S. government's position that military commissions have jurisdiction not only over international offenses, but also domestic violations of the law of war.Published: Jens David Ohlin, "The Common Law of War," 58 William & Mary Law Review (2016)

scholarly journals Fundamental Consumer Rights Under the Consumer Protection Act 68 of 2008: A Critical Overview and Analysis

2017 ◽  
Vol 13 (3) ◽  
pp. 301
Author(s):  
Wenette Jacobs ◽  
Philip N Stoop ◽  
René Van Niekerk
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
Common Law ◽  
Fair Value ◽  
Wide Field ◽  
Business Practices ◽  
Consumer Protection Act ◽  
Consumer Rights ◽  
The Common ◽  
The Government

South Africa was in need of a comprehensive framework of legislation, policies and government authorities to regulate consumer-supplier interaction. The Consumer Protection Act 68 of 2008, which was signed by the President of the Republic of South Africa on 29 April 2009 and published in the Government Gazette on 29 April 2009, now provides an extensive framework for consumer protection and aims to develop, enhance and protect the rights of consumers and to eliminate unethical suppliers and improper business practices. Certain areas of the common law regarding consumer rights have been codified by the Act and certain unfair business practices that were previously unregulated are now governed by the Act. The Act has a wide field of application. It applies to every transaction occurring within South Africa for the supply of goods or services or the promotion of goods or services and the goods or services themselves, unless the transaction is exempted from the application of the Act. The Act also specifically regulates aspects of franchise agreements. In terms of the Act, consumers obtain several new rights and some existing rights are broadened and reinforced. These rights are: the right to equality in the consumer market; privacy; choice; disclosure and information; fair and responsible marketing; fair and honest dealing; fair, just and reasonable terms and conditions; and fair value, good quality and safety. The last right in terms of the Act deals with a supplier's accountability to consumers. The authors critically analyse and discuss these rights. It is clear that the Act is written in favour of the consumer. Various provisions of the Act make inroads into the common-law position to strengthen the position of the consumer vis-à-vis the supplier and suppliers are undoubtedly facing an onerous task to prepare to comply, and eventually attempt to comply, with the Act. Although the Act has its own interpretation clause, which provides that it must be interpreted in a manner that gives effect to the purposes of the Act, the Act poses many uncertainties and interpretational and practical challenges. Many questions are therefore raised, some of which remain unanswered. These questions illustrate some of the uncertainties concerning the scope and possible interpretation of the fundamental consumer rights.

Debt and Contract in the Common Law

1966 ◽  
Vol 1 (1) ◽  
pp. 60-98 ◽  
Author(s):  
A. V. Levontin
Keyword(s):  
Income Tax ◽  
Common Law ◽  
The Real ◽  
Real Nature ◽  
The Common ◽  
The Difference ◽  
The Government ◽  
The Right ◽  
As If

The difference between what a man already owns, or property, and what he is only entitled to claim, or obligation, is fundamental. A debt represents what a man is entitled to claim, but because of its proximity to a claim in detinue and for other reasons to be hereafter discussed, it is for many purposes treated as if it were something that a man already owns. The owner of a debt may not help himself by seizing what he is owed and must, like the owner of any chose in action, implement his right with the cooperation of the debtor or else by resort to the courts. Nevertheless, he who owns a debt enjoys a peculiarly “strong” right. This strength derives in part from the “real” nature of the right; by virtue of this a creditor, such as a lender or an unpaid vendor, is treated in some respects almost as if he were already the owner of what is owed, in particular a lender as if he went on owning the money lent to the borrower. And even in cases where a debt does not originate in a real transaction (as, for instance, a judgment-debt or income tax owed to the government, in which cases the creditor has not previously given that, or the equivalent of that, which he now claims) it is still “strong” because the object in obligatione, viz. money or other fungibles, is “indestructible” and therefore a debt cannot be frustrated by impossibility.

scholarly journals Transfer to hospital under the Mental Capacity Act 2005

2009 ◽  
Vol 33 (12) ◽  
pp. 465-467
Author(s):  
Clare Stephenson ◽  
Robert Baskind ◽  
Christopher Harris
Keyword(s):  
Common Law ◽  
Mental Capacity ◽  
Fractured Neck Of Femur ◽  
Neck Of Femur ◽  
Physical Conditions ◽  
Mental Capacity Act 2005 ◽  
The Common ◽  
The Government ◽  
Mental Capacity Act ◽  
Legal Grounds

SummaryThis paper presents the case of an elderly gentleman who sustained a fractured neck of femur following a fall at home but refused to go to hospital. His general practitioner determined that he lacked capacity but ambulance and police crews refused to escort him due to concerns regarding deprivation of liberty.The legal grounds for treating people who lack capacity in emergencies are discussed and the development of the common law into the Mental Capacity Act 2005 is demonstrated. the Mental Health Act 1983 is inappropriate to treat primarily physical conditions, whereas deprivation of liberty cannot be authorised by the Mental Capacity Act 2005 without a means of challenging the lawfulness of the detention. In response, the government has produced Deprivation of Liberty Safeguards, which came into force in April 2009.

created by the common law rule were addressed by Parliament in the Law Reform (Frustrated Contracts) Act 1943, considered below, but the unjust enrichment principle is also relevant in other respects in determining whether a particular event is capable of frustrating a contract. If the decision to treat a contract as frustrated might give one of the parties an undue advantage this may operate as a justification for refusing to treat the contract as frustrated. For example, in Tamplin SS Co v Anglo-Mexican Petroleum Products Co Ltd, an oil tanker was chartered for a period of five years, but was subject to government requisition when the charterparty still had nearly three years to run. In the circumstances, there was no prejudice to the charterers, since the government compensation payable to the charterers exceeded the agreed hire charges. However, the owners of the ship claimed that the contract was frustrated. The House of Lords held, by a narrow majority, that the contract was not frustrated. One explanation for the action of the owners is that they wanted to secure the increased benefit of the government compensation in replacement for the lower hire charges. In this case, it is readily understandable that the majority of the House of Lords preferred not to allow the owners to benefit in this way at the expense of the charterers. Remedies, unjust enrichment and frustration Money paid or payable before the date of frustration

1995 ◽  
pp. 382-382
Keyword(s):  
Common Law ◽  
Petroleum Products ◽  
Law Reform ◽  
Unjust Enrichment ◽  
House Of Lords ◽  
The Common ◽  
The Law ◽  
The Government ◽  
Undue Advantage ◽  
Oil Tanker

6. The royal prerogative and constitutional conventions

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
The Rule Of Law ◽  
Head Of State ◽  
Constitutional Conventions ◽  
The Common ◽  
The Law ◽  
The Government ◽  
The Uk

This chapter explores the historical, legal, and political nature of the Crown and the royal prerogative. The rule of law requires that the government act according to the law, which means that the powers of the government must be derived from the law. However, within the UK Constitution, some powers of the government are part of the royal prerogative, as recognised by the common law. The concepts of the Crown and the royal prerogative mean that although the Queen is Head of State, it is generally the ministers who form the government that exercise the prerogative powers of the Crown. For this reason, many prerogative powers are often referred to as the ‘ministerial prerogatives’, and the few prerogative powers still exercised personally by the monarch, are referred to as the ‘personal prerogatives’.

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