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.

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 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 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 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.

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.

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

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.

Culture and the Courts: A New Direction in Canadian Jurisprudence on Aboriginal Rights?

2001 ◽  
Vol 34 (1) ◽  
pp. 109-129 ◽  
Author(s):  
Michael Murphy
Keyword(s):  
Supreme Court ◽  
Legal Status ◽  
Well Being ◽  
Aboriginal Peoples ◽  
Aboriginal Rights ◽  
Aboriginal Communities ◽  
Legal Recognition ◽  
The Right

This article explores the implications of changes in Canadian Supreme Court jurisprudence on Aboriginal rights since the 1990s. While recognizing the Court's valuable contributions in the period from Calder to Sparrow, the author argues that the 1996 Van der Peet decision deals a serious blow to the legal status of Aboriginal rights, particularly the right to self-government. The standard of legal recognition established in Van der Peet constitutes a decided step back from the Court's prior jurisprudence, and is insufficient as a means of securing its stated ends: the survival and well-being of Aboriginal communities and cultures. The author concludes by arguing that the Court can repair the recent damage it has done to Aboriginal rights by revisiting the concept of the quasinational status granted to Aboriginal peoples within the context of the sui generis Crown-Aboriginal relationship.

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).

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