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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 article 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 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. It identifies three major pillars of the subject: The honour of the Crown, the Royal Proclamation of 1763 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.

Aboriginal Rights And The Honour Of The Crown, Brian Slattery

Brian Slattery

When the Supreme Court first grasped the nettle of section 35 in the Sparrow case, it held that the constitutional affirmation of Aboriginal rights should be interpreted in the light of the fundamental principle of the honour of the Crown. This principle pointed simultaneously in two different but complementary directions: negotiation and litigation. With respect to the first, the Court noted that the section provided a solid constitutional base for negotiated treaties between Aboriginal peoples and the Crown that would represent a just settlement of their claims. With respect to litigation, the Court held that the section furnished Aboriginal rights …

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

Brian Slattery

Does the guarantee of freedom of expression in section 2(b) of the Charter cover all locations without exception, or do some fall beyond its scope? the Supreme Court of Canada first dealt with this issue in the Commonwealth case in 1991, where it split into three distinct camps, each supporting a different approach. This split remained unresolved until the Montréal case in 2005, where the Court held that certain places — such as private government offices — are categorically excluded from section 2(b) because of their historical or actual function. However, the Court advanced this view only tentatively, in an …

The Hidden Constitution: Aboriginal Rights In Canada, Brian Slattery

Brian Slattery

No abstract provided.

Three Concepts Of Law: The Ambiguous Legacy Of H.L.A. Hart, Brian Slattery

Brian Slattery

No abstract provided.

The Charter's Relevance To Private Litigation: Does Dolphin Deliver?, Brian Slattery

Brian Slattery

The author critically examines the recent decision of the Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. This case holds that the Canadian Charter of Rights and Freedoms only applies to the relations between government and private persons and not to relations between private persons alone, with two exceptions. The author argues that the first exception - when a private person invokes a statute, rather than the common law, against another private person - is untenable because both the common law and the droit civil are grounded in legislative instruments, respectively …

Federal Jurisdiction -- Pendent Parties -- Aboriginal Title And Federal Common Law -- Charter Challenges -- Reform Proposals: Roberts V. Canada, J. M. Evans, Brian Slattery

Brian Slattery

No abstract provided.

Charter Of Rights And Freedoms -- Does It Bind Private Persons, Brian Slattery

Brian Slattery

No abstract provided.

What Are Aboriginal Rights?, Brian Slattery

Brian Slattery

Aboriginal rights in Canada are often viewed as specific rights - rights that are grounded in the specific practices and customs of particular aboriginal peoples and that differ from people to people. This article argues that these specific rights are in fact concrete instantiations of a panoply of generic aboriginal rights that are presumptively held by all aboriginal groups under Canadian common law. They include the right to conclude treaties, the right to customary law, the right to honourable treatment by the Crown, the right to an ancestral territory, the right of cultural integrity, and the right of self-government. These …

Some Thoughts On Aboriginal Title, 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

Brian Slattery

Under section 33 of the 'Canadian Charter of Rights and Freedoms,' Parliament or a provincial legislature may enact a clause exempting legislation from the application of certain Charter provisions. It is commonly assumed that an override clause complying with section 33 takes effect automatically and is not subject to judicial review under the Charter. However, respectable arguments can be made to the contrary. I will set out one such argument here and briefly review the main objections to it.

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 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

Brian Slattery

No abstract provided.

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

Brian Slattery

No abstract provided.

Why The Governor General Matters, Brian Slattery

Brian Slattery

No abstract provided.

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

Brian Slattery

No abstract provided.

Paper Empires: The Legal Dimensions Of French And English Ventures In North America, Brian Slattery

Brian Slattery

No abstract provided.

Making Sense Of Aboriginal And Treaty Rights, Brian Slattery

Brian Slattery

No abstract provided.

Three Concepts Of Law: The Ambiguous Legacy Of H.L.A. Hart, Brian Slattery

Brian Slattery

No abstract provided.

Transcending Community: Some Thoughts On Havel And Bergson, Brian Slattery

Brian Slattery

No abstract provided.

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

Brian Slattery

No abstract provided.

The Myth Of Retributive Justice, Brian Slattery

Brian Slattery

Rights, Communities, And Tradition, Brian Slattery

Brian Slattery

Are Constitutional Cases Political?, Brian Slattery

Brian Slattery

The Constitutional Priority Of The Charter, Brian Slattery

Brian Slattery

Understanding Aboriginal Rights, Brian Slattery

Brian Slattery

No abstract provided.