scholarly journals “Irreconcilable? The Duty to Consult and Administrative Decision Makers”

2013 ◽  
Vol 22 (1) ◽  
pp. 63 ◽  
Author(s):  
Janna Promislow
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Decision Makers ◽  
Usual Sense ◽  
Aboriginal Rights ◽  
New Era ◽  
Legal Remedy ◽  
Institutional Structures ◽  
The Supreme Court ◽  
Aboriginal Law

Haida Nation v British Columbia (Minister of Forests) ushered in a new era in Aboriginal law. In contrast to the emphasis on history in section 35’s first 20 years, the Haida Nation era offered a determinedly forward-looking approach to the reconciliation purposes ascribed to Aboriginal rights by the Supreme Court. Under the Haida Nation paradigm, and the duty to consult and accomodate it imposed on the Crown in relation to pre-proof aboriginal rights claims, reconciliation is a process that “begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense.” Nine years after Haida Nation, the legal parameters and the institutional structures involved in implementing the duty to consult and this new direction remain incomplete and formative.

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.

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.

Throughput Legitimacy and the Duty to Consult: The Limits of the Law to Produce Quality Interactions in British Columbia's EA Process

2020 ◽  
Vol 53 (3) ◽  
pp. 577-595
Author(s):  
Minh Do
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Indigenous Peoples ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
Environmental Assessments ◽  
The Supreme Court ◽  
The Law

AbstractThe duty to consult mandates that the Crown must consult affected Indigenous parties when Crown action may negatively impact Aboriginal rights or title claims. The Supreme Court of Canada (SCC) has emphasized that the duty should be characterized by honourable dealings and good faith negotiations. This article argues that the concept of throughput legitimacy can help evaluate the Crown's conduct in consultation. By analyzing 131 British Columbia Environmental Assessments (BC EAs), this article finds that the Crown struggles to uphold throughput legitimacy from the perspective of Indigenous peoples, particularly in the areas of transparency, accountability and effectiveness.

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

2018 ◽  
Vol 26 (4) ◽  
pp. 25
Author(s):  
Ryan Beaton
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
First Nations ◽  
Short Story ◽  
Attorney General ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
Aboriginal Rights ◽  
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.The purpose behind this qualification, in line with the Court’s Aboriginal rights and title cases since Calder v British Columbia (Attorney General), seems to be to encourage the Crown to negotiate modern treaties and settle outstandingAboriginal rights and title claims in order to perfect or legitimate Crown sovereignty. As Crown negotiations with First Nations stalled, however, the Court proceeded to develop its own framework for the procedural legitimation of Crown sovereignty, i.e. a framework of procedural safeguards designed to weed out “bad” exercises of Crown sovereignty from legitimate ones.

scholarly journals The Alchemy of Equality Rights

2021 ◽  
Vol 30 (2) ◽  
pp. 53-84
Author(s):  
Joshua Sealy-Harrington
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Precise Definition ◽  
Canadian Charter ◽  
Equality Rights ◽  
The Supreme Court ◽  
Legal Test ◽  
Elusive Concept

A clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms1 recognized equality as “an elusive concept” that “lacks precise definition.”2 Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics. 1 s 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164, 56 DLR (4th) 1 [Andrews].

The Courts

2007 ◽  
Vol 40 (1) ◽  
pp. 249-250
Author(s):  
Ran Hirschl
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Judicial Review ◽  
Political Institutions ◽  
Supreme Court Of Canada ◽  
Court System ◽  
University Of British Columbia ◽  
The Supreme Court

The Courts, Ian Greene, The Canadian Democratic Audit Series; Vancouver: University of British Columbia Press, 2006, pp. xvii, 182.This book is another welcome addition to the Canadian Democratic Audit Series. It sets out to assess the democratic credentials of Canada's judiciary—a most significant branch of government in post-1982 Canada. The book's approach is refreshing in several respects. Instead of the traditional focus on the well-rehearsed debate over the questionable democratic credentials of judicial review, the book attempts to evaluate the adequacy of the Canadian court system in relation to three basic tenets of democracy: participation, inclusiveness, and responsiveness. Unlike most accounts of Canadian political institutions, it pays due attention to elements of the court system beyond the Supreme Court of Canada. In so doing, Greene is able to assess more accurately whether the Canadian judiciary as a whole is living up to that set of reasonable democratic expectations.

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).

scholarly journals BC Teachers’ Federation v British Columbia: The Supreme Court Takes a School Holiday

2018 ◽  
Vol 73 (3) ◽  
pp. 603-616
Author(s):  
Eric Tucker
Keyword(s):  
British Columbia ◽  
Political Economy ◽  
Public Sector ◽  
Supreme Court ◽  
Industrial Relations ◽  
Supreme Court Of Canada ◽  
Labour Rights ◽  
The Supreme Court ◽  
Public Sector Workers

Summary Constitutional labour rights in Canada now protect workers’ freedom to organize and bargain collectively and to strike. These associational freedoms are especially important for public sector workers, the most frequent targets of legislation limiting their freedoms. However, the Supreme Court of Canada judgments recognizing these rights and freedoms have also introduced important ambiguities about their foundation, scope and level of protection. This brief comment locates these ambiguities in the context of Canada’s political economy and industrial relations regime, which are beset by contradiction and conflict. It then explores the origins and development of the jurisprudential ambiguities in constitutional labour rights through a survey of recent Supreme Court of Canada’s labour rights judgments, including most recently British Columbia Teachers’ Federation and British Columbia (2016).

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