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The Generative Structure Of Aboriginal Rights, Brian Slattery Jul 2019

The Generative Structure Of Aboriginal Rights, Brian Slattery

Brian Slattery

Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to existing aboriginal and treaty rights. In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only ...


The Nature Of Aboriginal Title, Brian Slattery Jul 2016

The Nature Of Aboriginal Title, Brian Slattery

Brian Slattery

The concept of Aboriginal title is an autonomous concept of Canadian common law that bridges the gulf between Indigenous land systems and imported European land systems. It does not stem from Indigenous customary law, English common law or French civil law. It coordinates the interaction between these systems without forming part of them. In effect, it is a form of inter-societal common law.


The Generative Structure Of Aboriginal Rights, Brian Slattery Jul 2016

The Generative Structure Of Aboriginal Rights, Brian Slattery

Brian Slattery

Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to "existing aboriginal and treaty rights". In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only ...


The Generative Structure Of Aboriginal Rights, Brian Slattery Jul 2016

The Generative Structure Of Aboriginal Rights, Brian Slattery

Brian Slattery

Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to "existing aboriginal and treaty rights". In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only ...


The Constitutional Dimensions Of Aboriginal Title, Brian Slattery Jul 2015

The Constitutional Dimensions Of Aboriginal Title, Brian Slattery

Brian Slattery

As the Supreme Court reaffirms in Tsilhqot’in Nation v. British Columbia (2014), Aboriginal title is a sui generis right which cannot be described in traditional property terms. This paper argues that the explanation for this fact is that Aboriginal title is not a concept of private law. It is a concept of public law. It does not deal with the rights of private entities but with the rights and powers of constitutional entities that form part of the Canadian federation. If we look for analogies to Aboriginal title, we find a close parallel in Provincial title – the rights held ...


The Royal Proclamation Of 1763 And The Aboriginal Constitution, Brian Slattery Dec 2014

The Royal Proclamation Of 1763 And The Aboriginal Constitution, Brian Slattery

Brian Slattery

In Manitoba Metis Federation, the Supreme Court of Canada makes a valuable contribution to our understanding of Aboriginal law. Building on the foundations laid down in the Haida Nation case, the Court identifies three major pillars of the subject: the Royal Proclamation of 1763, the Honour of the Crown, and Aboriginal Treaties. These three, taken together, make up the framework of the Aboriginal Constitution, which parallels the Federal Pact between the Provinces and provides the Constitution of Canada with its most ancient roots.


The Paradoxes Of National Self-Determination, Brian Slattery Feb 2014

The Paradoxes Of National Self-Determination, Brian Slattery

Brian Slattery

Some have argued that the right of national self-determination gives every national group the power to decide for itself whether to remain part of an existing state or to secede unilaterally and form its own state. Such a theory underpins the claim that Quebec is entitled to decide on its own whether or not to leave Canada. This paper examines the main philosophical arguments for the theory and finds them one-dimensional and inadequate; they fail to take account of the full range of complex issues arising in actual cases of proposed secession. If the right of national self-determination is understood ...


A Theory Of The Charter, Brian Slattery Feb 2014

A Theory Of The Charter, Brian Slattery

Brian Slattery

No abstract provided.


The Organic Constitution: Aboriginal Peoples And The Evolution Of Canada, Brian Slattery Feb 2014

The Organic Constitution: Aboriginal Peoples And The Evolution Of Canada, Brian Slattery

Brian Slattery

Despite recent advances in the law of aboriginal rights, most Canadian lawyers still tacitly view the Constitution as the outgrowth of European legal traditions, transplanted into North America. This article identifies the main features of this model of the Constitution and proposes a more appropriate model to replace it, one that recognizes the Constitution's deep roots in Canadian history and traditions, and acknowledges the distinctive contributions of Aboriginal peoples and their long-standing relations with the Crown.


The Aboriginal Constitution, Brian Slattery Dec 2013

The Aboriginal Constitution, Brian Slattery

Brian Slattery

In a remarkable series of cases over the past decade, from Haida Nation to Manitoba Métis Federation, the Supreme Court of Canada has thrown a strong light on three basic elements of Aboriginal law: the honour of the Crown, the Royal Proclamation of 1763, and Aboriginal Treaties. This paper argues that these form the framework of the Aboriginal Constitution, which parallels the Federal Pact between the Provinces in the Constitution Act, 1867. Indeed, the Aboriginal Constitution provides the Constitution of Canada with its most ancient and enduring roots.


Expression And Location: Are There Constitutional Dead Zones?, Brian Slattery Dec 2009

Expression And Location: Are There Constitutional Dead Zones?, Brian Slattery

Brian Slattery

No abstract provided.


Why The Governor General Matters, Brian Slattery Dec 2008

Why The Governor General Matters, Brian Slattery

Brian Slattery

No abstract provided.


The Metamorphosis Of Aboriginal Title, Brian Slattery Dec 2005

The Metamorphosis Of Aboriginal Title, Brian Slattery

Brian Slattery

Aboriginal title has undergone a significant transformation from the colonial era to the present day. In colonial times, aboriginal title was governed by Principles of Recognition based on ancient relations between the Crown and Indigenous American peoples. With the passage of time, this historical right has evolved into a generative right, governed by Principles of Reconciliation. As a generative right, aboriginal title exists in a dynamic but latent form, which is capable of partial articulation by the courts but whose full implementation requires agreement between the Indigenous party and the Crown. The courts have the power to recognize the core ...


Aboriginal Rights And The Honour Of The Crown, Brian Slattery Dec 2004

Aboriginal Rights And The Honour Of The Crown, Brian Slattery

Brian Slattery

No abstract provided.


Making Sense Of Aboriginal And Treaty Rights, Brian Slattery Dec 1999

Making Sense Of Aboriginal And Treaty Rights, Brian Slattery

Brian Slattery

No abstract provided.


First Nations And The Constitution: A Question Of Trust, Brian Slattery Dec 1991

First Nations And The Constitution: A Question Of Trust, Brian Slattery

Brian Slattery

No abstract provided.


The Legal Basis Of Aboriginal Title, Brian Slattery Dec 1991

The Legal Basis Of Aboriginal Title, Brian Slattery

Brian Slattery

This paper considers a range of differing approaches to the question of Aboriginal land rights in the light of the judgment of the B.C. Supreme Court in the Delgamuukw case.


Aboriginal Language Rights, Brian Slattery Dec 1990

Aboriginal Language Rights, Brian Slattery

Brian Slattery

No abstract provided.


Aboriginal Language Rights, Brian Slattery Dec 1990

Aboriginal Language Rights, Brian Slattery

Brian Slattery

This paper considers several possible foundations for Indigenous language rights in the Constitution of Canada and argues for an approach that grounds these rights in inter-societal common law.


Are Constitutional Cases Political?, Brian Slattery Dec 1988

Are Constitutional Cases Political?, Brian Slattery

Brian Slattery

To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that ...


The Constitutional Priority Of The Charter, Brian Slattery Dec 1987

The Constitutional Priority Of The Charter, Brian Slattery

Brian Slattery

What rules determine the relative priority of the various Constitution Acts among themselves? In particular, how do the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms stand relative to constitutional provisions enacted after 1982? To what extent do they have the capacity to control later amendments? Various answers might be given to this question. This paper looks first at an answer with strong initial appeal. This invokes a principle of sequential ordering, which maintains that the priority between constitutional enactments is determined simply by the temporal sequence in which they were enacted. While this approach admits that ...


Understanding Aboriginal Rights, Brian Slattery Dec 1986

Understanding Aboriginal Rights, Brian Slattery

Brian Slattery

No abstract provided.


The Hidden Constitution: Aboriginal Rights In Canada, Brian Slattery Dec 1983

The Hidden Constitution: Aboriginal Rights In Canada, Brian Slattery

Brian Slattery

This article reviews the constitutional and historical grounds for Aboriginal and treaty rights in Canada and discusses the legal effects of entrenching these rights in the Constitution of Canada in 1982.


The Independence Of Canada, Brian Slattery Dec 1982

The Independence Of Canada, Brian Slattery

Brian Slattery

No abstract provided.


Canadian Charter Of Rights And Freedoms - Override Clauses Under Section 33 - Whether Subject To Judicial Review Under Section 1, Brian Slattery Dec 1982

Canadian Charter Of Rights And Freedoms - Override Clauses Under Section 33 - Whether Subject To Judicial Review Under Section 1, Brian Slattery

Brian Slattery

No abstract provided.


The Independence Of Canada, Brian Slattery Dec 1982

The Independence Of Canada, Brian Slattery

Brian Slattery

Canada is in independent state and has been for many years. Its sovereign status has long been acknowledged by the international community and the courts. So the constitutional manoeuvres that culminated in the enactment of the Constitution Act, 1982, by the British Parliament, must strike any observer as a somewhat puzzling series of events. How can we explain the fact that a sovereign state should consider itself bound to employ the legislature of another sovereign state to secure for itself a new constitution? Underlying this question are a number of fundamental issues going to the foundations of the Canadian legal ...


The Constitutional Guarantee Of Aboriginal And Treaty Rights, Brian Slattery Dec 1981

The Constitutional Guarantee Of Aboriginal And Treaty Rights, Brian Slattery

Brian Slattery

This paper proposes a workable framework for the application of the constitutional provisions dealing with Aboriginal and treaty rights in Canada.


The Land Rights Of Indigenous Canadian Peoples, Brian Slattery Dec 1978

The Land Rights Of Indigenous Canadian Peoples, Brian Slattery

Brian Slattery

The problem examined in this work is whether the land rights originally held by Canada's Indigenous peoples survived the process whereby the British Crown acquired sovereignty over their territories, and, if so, in what form. The question, although historical in nature, has important implications for current disputes involving Aboriginal land claims in Canada. It is considered here largely as a matter of first impression. The author has examined the historical evidence with a fresh eye, in the light of contemporaneous legal authorities. Due consideration is given to modern case-law, but the primary focus is upon the historical process proper.