A History of the Modern Jurisprudence of Aboriginal Rights – Some Observations on the Journey so Far

Keyword(s):  
2020 ◽  
Vol 20 (2) ◽  
pp. 214-241
Author(s):  
Erin A Hogg ◽  
John R Welch

Archaeological evidence has been used to assess pre-contact occupation and use of land since the first modern Aboriginal title claim in Canada. Archaeology’s ability to alternately challenge, support, and add substantive spatial and temporal dimensions to oral histories and documentary histories makes it a crucial tool in the resolution of Aboriginal rights and title. This article assesses how archaeological evidence has been considered in Aboriginal rights and title litigation in Canada, both over time and in different types of cases. The examination indicates that archaeological data have been judged to be sufficient evidence of pre-contact occupation and use. However, some limitations inherent in archaeological data, especially challenges in archaeology’s capacities to demonstrate continuous occupation and exclude possibilities for co-occupation, mean that it is best used in conjunction with ethnographies, oral histories, and historical documents. So long as courts affirm that it is the sole material evidence of pre-contact occupation, archaeological data will continue to be considered in future litigation.


2020 ◽  
Vol 119 (2) ◽  
pp. 353-369 ◽  
Author(s):  
Irina Ceric

Claiming that the criminal justice system fails to effectively prohibit protest and civil disobedience, corporate lawyers embrace the pervasive use of injunctions and contempt of court charges in struggles over resource extraction in British Columbia, dubbing this approach the “new normal.” Yet even a cursory review of protest policing in Canada reveals that state intervention in resistance movements is alive and well and that Indigenous peoples and allied social movements are made subject to repression, surveillance, and criminalization through the mechanism of injunctions and contempt, among other legal tools. Based on my direct experience with injunctions and contempt in BC as an activist legal support organizer and a settler ally, this article argues that the reliance on injunctions by extractive industries embroils the courts and police in struggles over public and/or collectively held lands and resources that are nonetheless constructed by the law as private disputes, largely insulated from the reach of constitutionally-derived Aboriginal rights. After tracing the long history of BC’s “injunction habit,” I examine the judicial and policy practices that make the “new normal” claim possible—and show how it is ultimately not accurate. As crucial tools in the legal arsenal of settler-colonial states, injunctions and the subsequent use of contempt charges carve out a distinctly colonial space within Canadian law for the criminalization of Indigenous resistance, facilitating access to resources and lands and easing the operation of extractive capitalism.


2020 ◽  
Vol 119 (2) ◽  
pp. 301-324
Author(s):  
Shiri Pasternak

The history of colonialism in Canada has meant both the partition of Indigenous peoples from participating (physically, politically, legally) in the economy and a relentless demand to become assimilated as liberal capitalist citizens. Assimilation and segregation are both tendencies of colonization that protect the interests of white capital. But their respective prevalence seems to depend on the regime of racial capitalism at play. This paper examines the intersection of settler colonization and racial capitalism to shed light on the status of Indigenous economic rights in Canada. I ask, to what extent are Indigenous peoples understood to have economic rights—defined here as the governing authority to manage their lands and resources—and, how we can we analyze these rights to better understand the conjoined meanings of colonialism and capitalism as systems of power today? In this paper, I look at two sites to address this problem: first, I examine how the Supreme Court of Canada has defined the “Aboriginal right” to commercial economies since the patriation of Aboriginal rights into the Constitution in 1982; and, second, I examine how these rights are configured through state resource revenue-sharing schemes with First Nations, in particular from extractive projects, over the past few years. Each case study provides critical material for analyzing the economic opportunities available to First Nations through democratic channels of state “recognition,” as well as when and why tensions between state policies of segregation and assimilation emerge.


2020 ◽  
Vol 118 (1) ◽  
pp. 55-81
Author(s):  
Jason Gibson

This article presents a history of left-wing ideas and activities in central Australia from the 1920s through to the 1970s. Although the central Australian region, and the Alice Springs district in particular, is now often associated with various Aboriginal rights struggles and other protest movements, little is known about the presence of left-wing influences prior to the 1970s. Working from archival sources, this paper begins to build up a picture of how leftists and, in particularly, those associated with the Communist Party of Australia struggled to make their presence felt in a predominantly conservative socio-economic milieu. The intent of this article is to sketch out the various historical figures, events and ideological contests that came to influence the political identity of Australia’s most isolated and scantily populated heartland over a number of decades. These vignettes also reveal how leftist politics did, and did not, have an effect on the Aboriginal rights campaigns that followed in the 1970s and onwards.


2017 ◽  
Vol 13 (2) ◽  
pp. 101-119 ◽  
Author(s):  
Lyle Hamm ◽  
Carla L Peck ◽  
Alan Sears

Canada is a country with a long history of substantial ethnocultural diversity. Questions about the reasonable accommodation of immigrant groups, the preservation of official language minority rights, and the fostering of Aboriginal rights permeate political and social discourse in Canada. Effective citizenship requires people who understand the subtle differences between and among groups in Canada, and are able to wrestle intelligently and respectfully with difficult questions inherent in these issues. This article reports on a study designed to map the conceptions of ethnic diversity held by grade 6 students in the eastern Canadian province of New Brunswick with a particular focus on the three areas outlined above. Overall, students demonstrated quite superficial understandings of ethnic diversity being able to identify some practices and beliefs as ‘cultural’, but with little knowledge of specific cultural groups or practices or the role of language as a vehicle for cultural enhancement and preservation.


Author(s):  
Thomas E. Flanagan

Abstract This article gives a schematic overview of metis aboriginal rights from the Huron and Superior Treaties of 1850 to the Mackenzie Valley Treaty of 1921. It traces the evolution of federal policy in several stages: treating Metis as Indians, followed by individual grants of land, scrip and money. Pragmatism and expediency led to many inconsistencies in policy, but there were also pressures of administrative precedent favouring rationalization. Awareness of this history is essential in determining what metis aboriginal rights, if any, are still “existing” under s. 25 of the Constitution Act, 1982.


2019 ◽  
pp. 226-241
Author(s):  
John Maynard

Writing in the aftermath of World War I, Marcus Garvey argued, “Never before in the history of the world has the spirit of unrest swept over as it has during the past two years”. He declared the era “the age of unrest, the age of dissatisfaction”. In Australia there emerged a vibrant pan-Aboriginal political movement, typified by Fred Maynard’s Australian Aboriginal Progressive Association, intent on demanding Aboriginal rights to land, opposing the government’s removal policy, defending an Indigenous cultural identity, demanding citizenship rights, and calling for self-determination and autonomy over Aboriginal affairs. This chapter examines Aboriginal political protest during this time of global upheaval, and examines the long-forgotten influence of Garveyism and the United Negro Improvement Association in the genesis of Aboriginal political mobilization during the 1920s.


2000 ◽  
Vol 33 (2) ◽  
pp. 211-243 ◽  
Author(s):  
Paul Rynard

The signing of the Nis[vBar ]ga'a Final Agreement in August of 1998 was an event of singular importance in the history of “First Nations relations” in Canada. It marked the completion of the first treaty negotiations in British Columbia in the twentieth century and will soon be followed by many others as nearly province–wide negotiations redefine the relationship between First Nations, the province and Canada. Given a political climate hostile to Aboriginal rights, the treaty is a significant achievement and deserves the support of fair–minded Canadians. It certainly does not “give too much” to the Nis[vBar ]ga'a Nation as its critics in the Liberal and Reform parties of British Columbia frequently assert.


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