8 Aboriginal Title in Tsilhqot’in: Exploring the Public Power of Private Property at the Supreme Court of Canada

2020 ◽  
pp. 287-308
Keyword(s):  
Supreme Court ◽  
Private Property ◽  
Supreme Court Of Canada ◽  
Public Power ◽  
The Public ◽  
The Supreme Court ◽  
Aboriginal Title

The Charter of Rights and Freedoms: Undermining Parliamentary Sovereignty and Federalism

Federalism-E ◽  
2019 ◽  
Vol 20 (1) ◽  
pp. 57-65
Author(s):  
Joshua Nahmias
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Political Environment ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Public ◽  
Public Purse ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Core Concepts

This article explores the Canadian Charter of Rights and Freedoms and its role in altering two core concepts of Canadian democracy: parliamentary sovereignty and federalism. The author argues that the Charter has undermined these concepts through the empowerment of Canada's judiciary, namely the Supreme Court of Canada. The article explores ways in which the powers of parliament have been superseded by the courts, specifically through the establishment of "charter proofing," parliament's loss of power over the "public purse," and the erosion of the provinces' policy autonomy. Ultimately, the article seeks to demonstrate that the Charter has "legalized" Canadian politics to the extent that the judiciary unwieldy an unacceptable amount of power in Canada's political environment. Cases explored in the essay include Morgentaler v. the Queen (1988), Schachter v. Canada (1992), and Attorney-General of Québec v. Association of Québec Protestant School Boards (1984).

Deepening counter institutions: Property, lands, relations, and the economic future of the Tŝilhqot’in

2021 ◽  
pp. 026377582110634
Author(s):  
Anthony W Persaud
Keyword(s):  
First Nations ◽  
Private Property ◽  
Well Being ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Land Relations ◽  
Aboriginal Title ◽  
Cultural Ecological ◽  
Economic Future ◽  
The Relationship

The recognition of Aboriginal title by the Supreme Court of Canada in 2014 affirmed the existence and relevance of a Tŝilhqot’in legal order governing the relationship that Tŝilhqot’in people have with their lands, with each other, and with outsiders. The challenge now for the Tŝilhqot’in is to articulate and enact these laws in ways that respond to their modern socio-economic and cultural-ecological needs and goals without betraying their fundamental principles. Complicating this is a dominant narrative which rationalizes First Nations compliance with liberal institutions of British common law, property, and market-based economic growth as requirements for socio-economic improvements and well-being within First Nations communities. This article interrogates some of the logics and fundamental assumptions that underpin the arguments of liberal property rights enthusiasts, questioning their applicability to the values and aspirations of the Tŝilhqot’in people and First Nations broadly. The Tŝilhqot’in, empowered through title, at once resist liberal private property while at the same recognize the need for institutional developments in relation to lands, housing, and ‘ownership’. This indicates a need for new legal conceptualizations of property that are more comprehensively rooted in, and reflective of, Indigenous laws and land relations.

Eliminating Indigenous Jurisdictions: Federalism, the Supreme Court of Canada, and Territorial Rationalities of Power

2016 ◽  
Vol 49 (3) ◽  
pp. 411-431 ◽  
Author(s):  
Michael McCrossan ◽  
Kiera L. Ladner
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
Aboriginal Title ◽  
Judicial Reasoning ◽  
Game Changer

AbstractThis paper examines judicial reasoning in the area of Aboriginal title, paying particular attention to the Supreme Court of Canada's Tsilhqot'in Nation (2014) decision. While the decision has been heralded as a ‘game-changer’ within media circles and legal commentaries for its recognition of a claim to title under section 35(1) of the Constitution Act, 1982, the authors argue that the decision does not depart substantially from prior judicial logics predicated upon the production of Crown sovereignty and the denial of Indigenous legal orders. In fact, the authors argue that the decision displays a clear judicial orientation towards the present jurisdictional divisions of Canadian federalism which not only serves to eliminate Indigenous legal orders and territorial responsibilities, but also provides federal and provincial governments with enhanced powers of ‘incursion’ into Aboriginal title lands.

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.

scholarly journals Judges and Religious-Based Reasoning: A Response to Ginn and Blaikie

2012 ◽  
Vol 21 (1) ◽  
pp. 15 ◽  
Author(s):  
Sarah E Hamill
Keyword(s):  
Public Sphere ◽  
Supreme Court ◽  
Recent Article ◽  
Religious Discourse ◽  
Religious Practices ◽  
Supreme Court Of Canada ◽  
The Public ◽  
Public Square ◽  
The Supreme Court ◽  
The Public Sphere

The Canadian jurisprudence on freedom of religion has tended to focus on the accommodation of religious practices rather than exploring the constitutionality of judicial reliance on religious-based reasoning. A recent article by Diana Ginn and David Blaikie seeks to argue that, in certain circumstances and under certain conditions, it would be acceptable for judges to rely on religious-based reasons in their judgments.  Ginn and Blaikie see their recent article as being a continuation of sorts to their earlier piece, "Religious Discourse in the Public Square." While I found their earlier piece to be a persuasive defence of the use of religious-based reasoning in the public sphere, I have serious doubts over the constitutionality and applicability of their argument with regard to judges. It is the purpose of this paper to refute Ginn and Blaikie’s argument and to show that, in Canada, the use of religious-based reasons by judges is likely precluded by decisions of the Supreme Court of Canada. 

scholarly journals Commentary on “Adhesion to Canadian Indian Treaties and the Lubicon Lake Dispute”

1992 ◽  
Vol 7 (2) ◽  
pp. 207-212
Author(s):  
Kent McNeil
Keyword(s):  
Supreme Court ◽  
Canadian Journal ◽  
Law And Society ◽  
Aboriginal Peoples ◽  
Western Canada ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Unexplored Area ◽  
Aboriginal Title

Thomas Flanagan's article on adhesion to Indian treaties in this issue of the Canadian Journal of Law and Society is a bold foray into a virtually unexplored area of aboriginal rights. Although adhesions to most of the eleven Numbered Treaties in northern and western Canada were common, as Flanagan points out, not much attention has been paid to them. The matter is nonetheless of major importance for many aboriginal peoples, as was demonstrated by the decision of the Supreme Court of Canada last year that the Teme-Augama Anishnabai had surrendered their aboriginal title by adhesion to the 1850 Robinson-Huron Treaty. There can be little doubt that the issue is going to arise more frequently as other aboriginal peoples challenge the application of treaties to their ancestral lands.

scholarly journals Testing the Waters : Aboriginal Title Claims to Water Spaces and Submerged Lands – An Overview

2005 ◽  
Vol 45 (4) ◽  
pp. 659-692
Author(s):  
Paula Quig
Keyword(s):  
Great Lakes ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Dry Land ◽  
The Supreme Court ◽  
Aboriginal Title ◽  
Aboriginal Groups ◽  
Near Future

This article provides an overview of some of the intriguing issues raised by Aboriginal title claims to water spaces and submerged lands. While the Supreme Court of Canada articulated a test for proof of Aboriginal title in the 1997 Delgamuukw decision, they did not squarely address questions relating to the viability of such claims outside of the “dry land” context. Recently, a number of Aboriginal groups from across Canada have filed claims seeking declarations of Aboriginal title in areas such as the foreshore, the sea, the seabed, and the Great Lakes and their connecting waterways. Similar claims might also surface in Quebec in the near future, in areas such as the St. Lawrence Seaway. The author guides the reader through international developments in this area, highlights some key legal and evidentiary issues which will require serious reflection in the near future, and provides some final thoughts with respect to the fundamental role which the goal of reconciliation and the principle of consultation will undoubtedly play in Aboriginal title cases to water spaces and submerged lands.

Archaeological Evidence in the Tsilhqot’in Decision

2020 ◽  
Vol 44 (2) ◽  
pp. 155-184
Author(s):  
Erin A. Hogg ◽  
John R. Welch
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
Supreme Court Of Canada ◽  
Trial Court ◽  
Archaeological Evidence ◽  
Archaeological Data ◽  
Legal Standards ◽  
The Supreme Court ◽  
Judicial Proceedings ◽  
Aboriginal Title

The 2014 Supreme Court of Canada Tsilhqot’in decision provides the first declaration of Aboriginal title to Canadian soil. Aboriginal title requires evidence of continuous, exclusive, and sufficient occupation of a territory. In the earlier trial before the British Columbia Supreme Court the Tsilhqot’in First Nations presented a substantial corpus of archaeological evidence to complement historical evidence, oral histories, and Tsilhqot’in testimony regarding the locations of Tsilhqot’in villages and the type and duration of their occupations. We examined this body of archaeological data in the context of the judicial proceedings to understand which data were considered favourably by the court and why. We found that the trial court accepted archaeological data as evidence of occupation on definite tracts of land at the time of sovereignty, agreeing with the Tsilhqot’in plaintiffs that the evidence met the legal standards for continuous and sufficient occupation. Because the Supreme Court Tsilhqot’in decision is the paramount statement on Aboriginal title, the treatment and consideration of archaeological data in that decision will likely set standards for and guide improvements to the applications of archaeological data in title cases.

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