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Full-Text Articles in Law
Canada's Residential Schools And The Right To Integrity, Amy Anderson, Dallas K. Miller, Dwight Newman
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
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 …
Person(S) Of Interest And Missing Women: Legal Abandonment In The Downtown Eastside, Elaine Craig
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 …
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
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
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
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 …
Indigenous Rights Wronged: Extinguishing Native Title In New Zealand, Geoffrey Wg Leane
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 …
Constitutional Realism About Constitutional Protection: Indigenous Rights Under A Judicialized And A Politicized Constitution, Matthew Sr Palmer
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 …
Ghosts In The Court: Jonathan Belcher And The Proclamation Of 1762, Eric Adams
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 …
Prosecuting The Fishery: The Supreme Court Of Canada And The Onus Of Proof In Aboriginal Fishing Cases, Peggy J. Blair
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
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 …
Improving Access To Legal Education For Native People In Canada: Dalhousie Law School's I.B.M. Program In Context, Hugh Macaulay
Improving Access To Legal Education For Native People In Canada: Dalhousie Law School's I.B.M. Program In Context, Hugh Macaulay
Dalhousie Law Journal
This paper is about access to legal education for Native peoples in Canada. It is important at the very outset of this undertaking to explain my interest in this issue and to describe the perspective from which I write. At the beginning of the 1989-90 academic year I returned to Halifax to discover that Dalhousie had implemented a program to increase access for Blacks and Micmacs to legal education. Motivated by my support for this initiative, I applied to be a tutor in the program and was fortunate enough to be selected.