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Constitutional Law

Osgoode Hall Law School of York University

Indian Rights

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The Generative Structure Of Aboriginal Rights, Brian Slattery Jan 2007

The Generative Structure Of Aboriginal Rights, Brian Slattery

Articles & Book Chapters

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 …


The Metamorphosis Of Aboriginal Title, Brian Slattery Jan 2006

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 Jan 2005

Aboriginal Rights And The Honour Of The Crown, Brian Slattery

Brian Slattery

No abstract provided.


Making Sense Of Aboriginal And Treaty Rights, Brian Slattery Jan 2000

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 Jan 1992

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

Brian Slattery

No abstract provided.


Understanding Aboriginal Rights, Brian Slattery Jan 1987

Understanding Aboriginal Rights, Brian Slattery

Brian Slattery

No abstract provided.


The Hidden Constitution: Aboriginal Rights In Canada, Brian Slattery Jan 1984

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 Land Rights Of Indigenous Canadian Peoples, Brian Slattery Jan 1979

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.