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Interpreting Undrip: Exploring The Relationship Between Fpic, Consultation, Consent, And Indigenous Legal Traditions, Jeffrey Warnock

Electronic Thesis and Dissertation Repository

This thesis addresses an interpretive question at the heart of the discourse surrounding the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); the meaning of the principle of Free, Prior, and Informed Consent (FPIC). It argues that interpreting and implementing UNDRIP and specifically the articles requiring FPIC needs to be done in a way that meaningfully engages with and incorporates the laws of Indigenous peoples (Indigenous Legal Traditions or ILTs). This thesis explores why it is essential to discuss UNDRIP through the lens of ILTs, explores the scholarship and major interpretive schools of thought regarding FPIC, and concludes …

What Is Cultural Misappropriation And Why Does It Matter? 03-31-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

An Anishinaabe Tradition: Anishinaabe Constitutions In Ontario, Leaelle N. Derynck

Electronic Thesis and Dissertation Repository

Constitutionalism is an Anishinaabe legal tradition. This thesis explores modern Anishinaabe constitutions in Ontario, as they connect to traditional constitutionalism while meeting the unique governing needs of contemporary Anishinaabe First Nations communities. I address the scholarly and legal context in which these constitutional documents have been produced and shed an empirical light on these understudied legal instruments. Two questions shape this thesis: 1) what are the defining characteristics of Anishinaabe constitutions in Ontario; and, 2) what is their function within Anishinaabe communities? To answer these questions, I review both ratified and draft Anishinaabe constitutional documents of member communities of the …

Conceptions Of Sovereignty, Paul Hansen

Master of Studies in Law Research Papers Repository

This paper explores conceptions of sovereignty held by Canada’s Indigenous and Western cultures. It seeks to determine what sovereignty entails and how the Crown- Indigenous relationship is affected by the judgments of Canada’s courts. The study makes no attempt to compare the relative merits of Indigenous and Western sovereignty conceptions. Similarly, it does not examine nor attempt to reconcile sovereignty-related tensions that may exist between the Crown and Indigenous peoples.

The research is framed by a two-part question: (1) What are the defining characteristics of Indigenous and Western conceptions of sovereignty; and (2) what impact do the sovereignty-related judgments of …

Canada's Residential Schools And The Right To Integrity, Amy Anderson, Dallas K. Miller, Dwight Newman

Dalhousie Law Journal

Apart from characterizations of the residential schools system as imposing cultural genocide, it is possible to understand the system in terms of a legal wrong involving violations of family integrity. The 19th and early 20th centuries saw increasing state intervention in families generally so as to impose compulsory education. However, wrongs in this intervention were recognized, and international law developed toward a right of family integrity that led to changes in non-Indigenous contexts. Evidence from the TRC shows that Canada did not respond as quickly in the Indigenous context, thus permitting an identification of how the residential schools system violated …

Aboriginal Consultation In Canadian Water Negotiations:The Mackenzie Bilateral Water Management Agreements, Andrea Beck

Dalhousie Law Journal

Due to constitutional protection of Aboriginal water rights, the Canadian government has a duty to consult Aboriginal peoples in water-related decision making. In 2015, Alberta and the Northwest Territories signed an agreement for managing their shared waters in the Mackenzie River Basin. In light of Canada's record, observers have praised the preceding negotiation process as pathbreaking due to its high level of Aboriginal involvement. To evaluate such claims, this paper analyzes Aboriginal consultations in the 2011-2015 NWT-Alberta transboundary water negotiation. The comparative case study reaches the following conclusions. In their bilateral water negotiation, the two jurisdictions differed markedly in terns …

The Failure Of The Canadian Human Rights Regime To Provide Remedies For Indigenous Peoples: Enough Time Has Passed, Jeffery Gordon Hewitt

LLM Theses

In 2008, Canada amended the Canadian Human Rights Act to remove s.67, which in essence precluded Indigenous Peoples from bringing complaints as against Canada and Band governments. Since the amendment took effect in 2010, a multi-fold increase has occurred in the number of complaints filed with the Human Rights Commission of Canada from dozens to hundreds. The first such significant complaint to be heard by the Canadian Human Rights Tribunal was filed by the First Nation Child and Family Caring Society along with the Assembly of First Nations (the Complaint). The Complaint alleges Canada's funding with respect to First Nation …

Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss

Publications

This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …

The Allocation Of Burdens In Litigation Between First Nations And The Crown, Michael Wilfred Posluns

LLM Theses

No abstract provided.

Person(S) Of Interest And Missing Women: Legal Abandonment In The Downtown Eastside, Elaine Craig

Articles, Book Chapters, & Popular Press

Women are disappearing. Sixty-nine of them disappeared from the Downtown Eastside of Vancouver between 1997 and 2002. Northern communities in British Columbia believe that more than 40 women have gone missing from the Highway of Tears in the past thirty years. The endangered do not come from every walk of life. Most of these women are Aboriginal. Many of them are poor. To be more precise then, poor women and Aboriginal women are disappearing. Aboriginal women in particular are the targets of an irrefutable epidemic of violence in Canada today. Robert Pickton is thought to have murdered almost 50 of …

Taos Pueblo Indian Water Rights Settlement Agreement, Taos Pueblo, New Mexico, United States, Taos Valley Acequia Assn & Its 54 Member Acequias, Town Of Taos, El Prado Water & Sanitation District, 12 Taos Area Mutual Domestic Water Consumers’ Assns.

Native American Water Rights Settlement Project

Taos Pueblo Indian Water Rights Settlement. Abeyta Water Rights Adjudication Settlement Agreement among the US, Taos Pueblo, NM, Taos Valley Acequia Assn & it s 55 Member Acequias, Town of Taos, El Prado Water & Sanitation District & 12 Taos Area Mutual Domestic Water Consumers’ Assns. (Dec. 12, 2012) (final signatures Dec. 21, 2012) The Settlement Agreement goals are to resolve the water right claims of the Taos Pueblo; protect the non-Pueblos irrigation uses; restore and protect Buffalo Pasture; and foster cooperation among Taos Valley residents regarding the allocation and use of water resources. The agreement addresses ground and surface …

Commonality Among Unique Indigenous Communities: An Introduction To Climate Change And Its Impacts On Indigenous Peoples, Randall S. Abate

Journal Publications

This special Issue of the Tulane Environmental Law Journal explores how climate change affects the rights of indigenous peoples. Climate change is a global environmental problem caused by greenhouse gas emissions. Indigenous peoples generally contribute very limited quantities of greenhouse gases to the global atmosphere. Although the causes of climate change are global, the adverse impacts of this problem are disproportionately burdening indigenous peoples.

In recognition of the growing global problem of climate change, legal strategies to address climate change through mitigation and adaptation have been undertaken. This Issue recognizes that indigenous peoples are particularly vulnerable to climate change, both …

Order Of Determination Of Water Rights For The Owyhee River And Its Tributaries, Including The Rights Of The Shoshone-Paiute Tribes Of The Duck Valley Reservation, Shoshone-Paiute Tribes Of The Duck Valley Indian Reservation, Nevada, United States

Native American Water Rights Settlement Project

Settlement Agreement: Agreement to Establish the Relative Water Rights of the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation and the Upstream Water Users, East Fork Owyhee River (2006) contained, at the 368th page, as Appendix B to In the Matter of the Determination of the Relative Rights in and to the Waters, Both Surface and Underground, Within the Drainage Area of the Owyhee River and its Tributaries Located within the East For Owyhee River Area, Elko County, NV, Order of Determination, From the Office of the State Engineer of Nevada, 2012. Parties: the Shoshone-Paiute Tribes of the Duck Valley …

White Mountain Apache Tribe Water Rights Quantification Act Of 2010, United States 111th Congress

Native American Water Rights Settlement Project

Federal Legislation: Claims Settlement Act of 2010, TITLE III—White Mountain Apache Tribe Water Rights Quantification, PL111-291| 124 Stat 3064, 3073 (Dec. 8, 2010). Parties: White Mountain Apache Tribe, US, AZ. The Act ratifies, authorizes, and confirms the WMAT Water Rights Quantification settlement; authorizes the DOI Secretary to execute the and take all necessary action; to authorize appropriations; and, to permanently resolve certain damages and water rights in the general adjudication of the Gila River System and Little CO River System. The provides for: 1) environmental compliance; 2) tribal water rights; 3) CAP reallocation; 4) tribal leasing, distributing, exchanging or allocation …

A Reply To Professor Pothier's Review Of Power Without Law: The Supreme Court Of Canada, The Marshall Decisions And The Failure Of Judicial Activism, Alex M. Cameron

Dalhousie Law Journal

The Spring 2010 edition of the Dalhousie Law Journal contains an article by Professor Dianne Pothier, discussing my book, Power Without Law: The Supreme Court of Canada, The Marshall Decisions and the Failure of JudicialActivism. In the review, Professor Pothier strongly disagrees with the book's critique of the Supreme Court of Canada's majority decision in R. v. Marshall. In particular, she disagrees with the argument that the alleged treaty right of aboriginals to hunt, fish, gather and trade for necessaries, described in Justice Binnie's majority decision, is constitutionally flawed. Professor Pothier also suggests that the argument is the central thesis …

Understanding The Progression Of Mi'kmaw Law, Jaime Battiste

Dalhousie Law Journal

Over the past 250 years, the recognition and implementation of the aboriginal and treaty rights of the Santi Mawio'mi of the Mi'kmaq has been a hard and bitter struggle for justice. Building on Mi'kmaw Aboriginal knowledge and legal traditions that inform their aboriginal and treaty rights, the Supreme Court of Canada has affirmed a Mi'kmaw right to hunt, fish, and gather in their traditional territory. The author focuses on the progression of Mi'kmaw law, drawing on the original teachings of the Mawio'mi embedded in Netukulimk and then shifting to the current legal strategy that creates a constitutional jurisgensis and a …

Colonialism And The Process Of Defining Aboriginal People, D'Arcy Vermette

Dalhousie Law Journal

It is not uncommon for Aboriginal law students to experience discomfort in studying the law The discomfort is not unique to legal studies, but the law provides a venue where the effects of the imposition of colonial norms are starkly revealed. In law school the author had to confront how Canadian law has attempted to control Aboriginal identity, at first through legislation and then through the courts. While the locus and style of controlling Aboriginal identity has changed over time, the practice of controlling Aboriginal identity is ever present. This process of control dehumanizes individualsand peoples and continues into the …

Not Just The Peace Pipe But Also The Lance: Exploring Different Possibilities For Indigenous Control Over Criminal Justice, David Milward

Dr. David Milward

This article will exploring whether contrasts between restorative and punitive models of criminal justice inform an ideological struggle between Western and Indigenous approaches of criminal justice as Indigenous communities strive for greater control over criminal justice. The answer to this question will be examined in light of considerations for Indigenous control over justice. One concern by Western states is that Indigenous justice must strike the proper balance beteen community safety and offender healing. This paper contends that for self-determination to be effective, Indigenous leaders must include and consider the community at large when making decisions over criminal justice.

Soboba Band Of Luiseño Indians Settlement Agreement, Soboba Band Of Luiseño Indians Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Soboba Band of Luiseño Indians Settlement Agreement of June 7, 2006, (final signatures Oct. 18, 2008) Parties: Soboba Band of Luiseño Indians, US, Eastern Municipal Water District, Lake Hemet Municipal Water District and Metropolitan Water District of Southern California. The Tribe is entitled to 9K acre-feet annually (afy) as a prior and paramount right. The districts agree to supply the Tribe water to the extent that it is not able to produce that amount. However, the Tribe agrees to limit its exercise of the right to 4,100 afy for 50 years. The Tribe may use water made available …

Constitutional Realism About Constitutional Protection: Indigenous Rights Under A Judicialized And A Politicized Constitution, Matthew Sr Palmer

Dalhousie Law Journal

This article assesses the comparative effectiveness of constitutional protection of indigenous rights in Canada and New Zealand using a perspective of "constitutional realism". The two constitutions offer a useful contrast of similar systems distinguished by distinctly contrasting directions over the past twentyfive years. The reality of Canadas constitutional development has seen more power accrue to the judicial branch of government. The reality of New Zealand's constitutional development has seen more power accrue to the political branches ofgovernment. The article considers the reality of the behaviour of these branches of government in each jurisdiction in relation to indigenous rights. It finds …

Indigenous Rights Wronged: Extinguishing Native Title In New Zealand, Geoffrey Wg Leane

Dalhousie Law Journal

This article is an account of a recent controversy in New Zealand regarding the common law native title rights of indigenous Maori people to a possible title in certain areas of the foreshore and seabed. In overturning its own precedent the New Zealand Court of Appeal had opened the door to such claims. However, the legislature, overwhelmingly supported by the majority non-Maori population, moved quickly to extinguish the inchoate rights with no guarantee of fair compensation. The lack of any constitutional protection ofcivil and political rights, and the absence of alternative institutional checks and balances, allowed the legislation to proceed …

Gila River Indian Community Water Rights Settlement Act Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal legislation: Gila River Indian Community Water Rights Settlement of 2004 as Title II found in the Arizona Water Settlement Act of 2004. Title I reallocates 28,200 acre-feet of CAP agricultural priority water; amends the Colorado River Basin Project Act re Lower Colorado River Basin Development Fund making $53M available for the Gila River Indian Community Water OM&R Trust Fund. Title II ratifies the Gila River Indian Community Water Rights Settlement of Feb. 4, 2003. The Secretary will comply with National Environmental Policy Act in executing the Agreement and Reclamation is the lead agency for compliance. The DOI Secretary shall …

Ghosts In The Court: Jonathan Belcher And The Proclamation Of 1762, Eric Adams

Dalhousie Law Journal

History occupies a central place in aboriginal rights litigation. As a result, the circumstances and characters of the distant past play crucial roles in the adjudication of aboriginal treaty, rights and title claims. One such character is Jonathan Belcher. the first chief justice and former lieutenant governor of Nova Scotia. In 1762, Belcher issued a Proclamation reserving the north-eastern coast of Nova Scotia (and what Is now the eastern coast of New Brunswick) for the Mi'kmaq. In R. v Bernard, the accused pleaded a right to log timber on Crown land on the basis of Belcher's Proclamation. This article argues …

Tohono O'Odham Settlement, Tonhono O'Odham Nation Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Tohono O'odham Settlement (Apr. 30, 2003). Parties: Tohono O'odham Nation, AZ, US, Tucson, Asarco Inc., Farmers Investment Co., two allottee classes. The Settlement Agreement has been revised to eliminate any conflicts with PL 108-451. The parties are a part of the Gila River adjudication. The Nation has a water right of 79,200 acre-feet per year, sourced in ground and surface water. This water may be put to any use. The Nation may use the water off-reservation according to the attached contracts or pursuant to state law, but the uses must remain within the state. Provisions are made for …

Self-Government And The Inalienability Of Aboriginal Title, Kent Mcneil

Articles & Book Chapters

Aboriginal title to land, as defined by the courts, has a number of sui generis aspects. Prominent among these is its inalienability, other than by surrender to the Crown. Two explanations are usually given for this: the need to protect Aboriginal peoples from exploitation by unscrupulous European settlers, and the incapacity of the settlers to obtain title to land otherwise than by Crown grant. While acknowledging that the need for protection of Aboriginal lands was important historically, this article argues that it is paternalistic to rely on this explanation for inalienability today. The incapacity of settlers is a more satisfactory …

Shivwits Band Of The Paiute Indian Tribe Of Utah Water Rights Settlement Agreement, Shivwits Band Of The Paiute Indian Tribe Of Ut Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Shivwits Band of The Paiute Indian Tribe of Utah Water Rights Settlement Agreement (Jan. 18, 2001) Parties: Shivwits Band of the Paiute Indian Tribe of UT, UT, US, New Santa Clara Field Canal Co., Ivins Irrigation Co., Gunlock Irrigation Co., Lower Gunlock Reservoir Corp., New Santa Clara Field Canal Co., Washington County Water Conservancy District, City of St. George, St. George Field Canal Co., Bloomington Canal Co., Southgate Irrigation Co,. Edward Bowler. (Shivwitz Band Only, not the other 4 Bands of Utah Paiutes) The Band will have use of a total of 4000 acre-feet per year including 100 …

Aboriginal Rights In Transition: Reassessing Aboriginal Title And Governance, Kent Mcneil

Articles & Book Chapters

In a series of important decisions, the Court has come to grips with a number of issues that it did its best to avoid in the past, involving the identification and definition of Aboriginal rights, the content of Aboriginal title to land and the requirements for proving it, and the relevance of the law of New France to Aboriginal rights today. This paper will focus on these recent developments in the law, as well as attempting to identify areas where the law of Aboriginal rights is incomplete and so requires further judicial elucidation.

Confederated Tribes Of The Warm Springs Reservation Water Rights Settlement Agreement, Confederated Tribes Of The Warm Springs Reservation Et Al

Native American Water Rights Settlement Project

Reservation, and long-term cooperative management of the waters. The Tribes shall not convert any existing non-consumptive use to a consumptive use. The Agreement designates the amounts of instream flows and diverted water for the Tribes. The Tribes have the first priority for their Tribal Reserved Water Right; however, existing State law water rights will not be curtailed in favor of the Tribal Reserved water right. The water right may be obtained from surface or groundwater. A part of the Tribal Reserved Water Right may be used off reservation, subject to federal, state and Tribal Law. While used on Reservation the …

Prosecuting The Fishery: The Supreme Court Of Canada And The Onus Of Proof In Aboriginal Fishing Cases, Peggy J. Blair

Dalhousie Law Journal

In Sparrow and other decisions, the Supreme Court of Canada has outlined certain tests which must be met by the Crown and defence in the trial of aboriginal fishing cases where s.35 rights are at issue. This article describes the shifting burdens of proof which have resulted from those tests. The author argues that the Supreme Court of Canada has imposed procedural and substantive requirements of proof on the defence which may in themselves be unconstitutional.

Reservation Geography And The Restoration Of Native Self-Government, Robert White-Harvey

Dalhousie Law Journal

Recognition of the spatial aspects of Indian settlement on reserves is vital to understanding the potential for Native self-government. In particular, the number and size of reserves, as well as the remoteness, accessibility and dispersal of Native land holdings must be considered. They can impact on the viability and cost of Native courts and institutions, the solidarity of bands, and the economic livelihood of reserve residents. As Native self-government is fleshed out in constitutional reform talks and experiments in limited self-government, it is not widely known that all of the reserves in every province of Canada combined would not cover …