scholarly journals Conservation Controversy: Sparrow, Marshall, and the Mi’kmaq of Esgenoôpetitj

2011 ◽  
Vol 2 (4) ◽  
Author(s):  
Sarah J King
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
First Nation ◽  
Scientific Management ◽  
Supreme Court Of Canada ◽  
Management Problem ◽  
Treaty Rights ◽  
The Supreme Court ◽  
Fisheries Policy ◽  
The Government

This paper explores the interplay between the Sparrow and Marshall decisions of the Supreme Court of Canada, and the sovereigntist and traditionalist convictions of the Mi’kmaq of the Esgenoôpetitj/Burnt Church First Nation, as expressed in the conservationist language of the Draft for the Esgenoopotitj First Nations (EFN) Fishery Act (Fisheries Policy). With the Supreme Court of Canada’s decision in Sparrow, conservation became an important justification available to the Canadian government to support its regulatory infringement on aboriginal and treaty rights. Ten years later, in Marshall, the Court recognized the treaty rights of the Mi’kmaq to a limited commercial fishery. The EFN Fishery Act, written to govern the controversial post-Marshall fishery in Esgenoôpetitj (also known as the Burnt Church First Nation) demonstrates that for the Mi’kmaq, scientific management, traditional knowledge, sovereignty and spirituality are understood in a holistic philosophy. The focus placed on conservation by the courts, and the management-focused approach taken by the government at Esgenoôpetitj have led to government policy which treats conservation simply as a resource access and management problem. Conservation, which the Court deems “uncontroversial” in Sparrow, is a politically loaded ideal in post-Marshall Burnt Church.

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 Interpreting Sui Generis Treaties

1997 ◽  
Vol 36 (1) ◽  
pp. 46 ◽  
Author(s):  
James (Sakej) Youngblood Henderson
Keyword(s):  
Supreme Court ◽  
Contextual Analysis ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
Cognitive Diversity ◽  
Treaty Rights ◽  
The Supreme Court

This article explores the interpretive principle of sui generis treaties introduced by the Supreme Court of Canada since the repatriation of the Constitution in 1982. The article proceeds through an analysis of treaty rights as constitutional rights, contextual analysis of Indian Treaties, the intent of the treaty parties and the principles which govern the interpretation of treaty text. The author concludes that the principles articulated by the Supreme Court of Canada are an attempt to affirm and enhance Aboriginal worldviews and cognitive diversity within the Constitution of Canada.

scholarly journals Supreme Court of Canada Cases Strengthen Argument for Municipal Obligation to Discharge Duty to Consult: Time to Put Neskonlith to Rest

2019 ◽  
Author(s):  
Angela D’Elia Decembrini ◽  
Shin Imai
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Provincial Government ◽  
First Nation ◽  
Shopping Mall ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Indigenous Group ◽  
The City ◽  
Court Of Appeal

Can municipalities infringe Aboriginal or treaty rights without consulting the affected Indigenous group? In Neskonlith Indian Band v. Salmon Arm (City), the British Columbia Court of Appeal answered this question in the affirmative, finding that the city of Salmon Arm did not need to consult the Neskonlith First Nation about impacts from the construction of a shopping mall. In what was technically obiter dicta, the Court permitted the municipal project to proceed, and told the First Nation that its only recourse was to complain to the provincial government in a separate proceeding.

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

2019 ◽  
Vol 27 (1) ◽  
pp. 25-34 ◽  
Author(s):  
Ryan Beaton
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
Short Story ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
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.

scholarly journals Unique Public Duties of Care: Judicial Activism in the Supreme Court of Canada

2016 ◽  
Author(s):  
Bruce Feldthusen
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
The Supreme Court ◽  
Open Discussion ◽  
The Government

Typically, government liability in tort depends on whether the government in question, through legislation, has consented to be held liable for its otherwise tortious acts. However, the Supreme Court of Canada has behaved in an activist manner by ignoring or eviscerating this legislation, altering and expanding what governments can be held liable for. This article explains how this process has occurred, providing five specific examples where unique public duties of care were created. An open discussion is needed about whether the Supreme Court ought to continue doing this and, if so, on what basis. This article starts that discussion.

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 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 The supreme court of Canada and the offender’s right to be transferred to serve his sentence in Canada: interpreting the international transfer of offenders act in light of Canada’s national and international human rights obligations

2013 ◽  
Vol 6 (2) ◽  
pp. 102-123
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Emergency Preparedness ◽  
Public Safety ◽  
Federal Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Academic Publications ◽  
The Usa ◽  
The Government ◽  
The Right

ABSTRACT In September 2013 in the case of Divito v Canada (Public Safety and Emergency Preparedness) the Supreme Court of Canada dealt with the issue of whether section 6(1) of the Canadian Charter of Rights and Freedoms, the Charter, which grants Canadians the right to enter Canada was violated in a case where the Minister of Public Safety and Emergency Preparedness declined to consent to the transfer of a Canadian citizen to serve his sentence in Canada where the sentencing state had consented to the transfer. Another issue was whether sections 8(1) and 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act, which granted the Minister the discretion to consent or not to consent to the transfer, were contrary to section 6(1) of the Charter. In resolving the above issues, the Court referred to its earlier jurisprudence, academic publications and international law. Although the Court agreed with the government that the appeal was moot because the appellant had left the USA by the time it was heard, it held that it retained “a residual discretion to decide the merits of a moot appeal if the issues raised are of public importance” and that this case was one of public importance because “[t]he issues are likely to recur in the future and there is some uncertainty resulting from conflicting decisions in the Federal Court.” The purpose of this article is to highlight the interpretative tools invoked by the court and the implications of the judgement.

scholarly journals THE DUNMORE DEPARTURE: SECTION 1 AND VULNERABLE GROUPS

2011 ◽  
Vol 13 (1 & 2) ◽  
pp. 2003
Author(s):  
Caroline Libman
Keyword(s):  
Supreme Court ◽  
Occupational Group ◽  
Agricultural Workers ◽  
Vulnerable Groups ◽  
Supreme Court Of Canada ◽  
Labour Relations ◽  
The Supreme Court ◽  
Complete Exclusion ◽  
The Government ◽  
First Time

In the recent decision Dunmore v. Ontario (A.G.),1 the Supreme Court of Canada held that the complete exclusion of agricultural workers from Ontario’s Labour Relations Act2 was a violation of section 2(d) of the Charter3 that could not be justified under section 1. Dunmore was a novel case; as Bastarache J. noted in the introduction to the majority decision, it represented “the first time” the Court had been called on to review “the total exclusion of an occupational group from a statutory labour relations regime, where that group is not employed by the government and has demonstrated no independent ability to organize.”

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