Law Commons^™

Colonial Fault Lines: First Nations Autonomy And Indigenous Lands In The Time Of Covid-19, Alexandra Flynn, Signa Daum Shanks

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The COVID-19 crisis has exposed the political and economic fault lines in the exercise of power across multiple jurisdictions. This article focuses on the power of First Nations to make enforceable decisions in respect to reserve lands, specifically the powers First Nations have to enforce public health restrictions during the pandemic. We argue that Canadian law both enables First Nations to assert decisionmaking in respect to their lands, and undermines Indigenous authority in relation to enforcement and intergovernmental status. This paper is part of the SPE Theme on the Political Economy of COVID-19.

Johnson V. M'Intosh, Alexandra Flynn

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A title to lands, under grants to private Individuals, made by Indian tribes or Nations northwest of the river Ohio, in 1773 and 1775. The decision of the United States District Court is deemed to be in error. ERROR to the District Court of Illinois. This was an action of ejectment for lands in the State and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a grant from the United States.

R V. Turtle: Substantive Equality Touches Down In Treaty 5 Territory, Sonia Lawrence, Debra Parkes

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Court comes to Pikangikum First Nation through the air. Judges, Crown attorneys, and defence lawyers fly into this Anishinaabe community, located 229 kilometres north of Kenora, Ontario, to hear bail, trial, and sentencing matters involving members of the community. And then they fly out. Many of those provincial court proceedings involve sentencing members of the community to jail in Kenora or to a penitentiary even further away. We suspect that s. 15 of the Charter is rarely discussed in the Pikangikum courtroom (which is sometimes a room in the business development centre and sometimes the Chinese restaurant), a reality that …

Indigenous-Municipal Legal Relationships: Moving Beyond The Duty To Consult And Accommodate, Alexandra Flynn

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This paper examines the path forward for Indigenous-municipal relationships in regard to the land use planning process. While the arguments in the paper apply broadly, I focus on the unique legalities of planning approaches in Ontario. The aim is to argue that municipal planning – using the example of the Ontario planning model more specifically – should not frame its responsibilities with First Nations and Indigenous peoples based on the requirements of the duty to consult, which is a problematic singular framework in grounding a nation-to-nation relationship. The duty to consult as the basis of Indigenous-settler relationships has not led …

With Great(Er) Power Comes Great(Er) Responsibility: Indigenous Rights And Municipal Autonomy, Alexandra Flynn

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This article asks how the dialogue surrounding greater municipal autonomy intersects with Aboriginal rights and title, recognized under section 35 of the Constitution Act, 1982 (Constitution), with a particular focus on Toronto. The first part of this article sets out the ways in which Toronto sought empowerment following the Better Local Government Act or Bill 5, including judicial consideration of the constitutional role of Canadian municipalities, the legislative advances made by provincial governments, and the yet-implemented possibilities of protection through a little-used mechanism within the Constitution. Part II analyzes the obligations of municipalities in respect of Indigenous Peoples …

A Colonial Castle: Defence Of Property In R V Stanley, Alexandra Flynn, Estair Van Wagner

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In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered his farm. Boushie died instantly. Stanley relied on the defence of accident and was found not guilty be an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime), much of which was of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass shaped the trial, yet were not tested by the jury through a formal invocation of the defence of property.

The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey

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Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision making about major development projects with implications for environmental protection and the rights and title of Indigenous peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern environmental assessment can be understood through three public law frames: procedural fairness, public inquiry, and framework for the duty to consult and accommodate. It further …

Rethinking 'Duty': The City Of Toronto, A Stretch Of The Humber River, And Indigenous-Municipal Relationships, Doug Anderson, Alexandra Flynn

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The nation-to-nation relationship between Indigenous peoples and cities remains largely unexplored in the Canadian context. This oversight is especially problematic in light of the significant percentage of Indigenous people who live in urban areas, and the many concerns that Indigenous and non-Indigenous peoples share. These shared concerns include the environment, land use, housing, social services, and much more, and modern municipalities do make attempts to address Indigenous-specific needs in these areas; but Indigenous-municipal relationships have implications that far exceed the technocratic and siloed ways in which Canadian systems generally approach these broad areas of concern - implications not only with …

Building The Aboriginal Conference Settlement Suite: Hope And Realism In Law As A Tool For Social Change, Toby S. Goldbach

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In 2014, the provincial government unveiled a new courthouse in Thunder Bay, Ontario, featuring a conference area designed to emulate an Anishinaabe roundhouse. The “Aboriginal Conference Settlement Suite” epitomizes efforts to support Indigenous justice within the criminal justice system. However, despite similar efforts in the past, the circumstances of Indigenous peoples in Canada have not improved. This ongoing commitment to legal solutions is emblematic of mainstream views of law as a problem-solving instrument. Notwithstanding awareness of its failings, law reformers remain dedicated to using law as a tool for social change. Employing a case study method focusing on the new …

Nagwediẑk’An Gwaneŝ Gangu Ch’Inidẑed Ganexwilagh: The Fires Awakened Us: Tsilhqot’In Report On The 2017 Wildfires, Jocelyn Stacey, Crystal Verhaeghe, Emma Feltes

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This report documents the experiences of the Tsilhqot'in Nation during the historic 2017 wildfire season. It identifies needs and recommendations for moving forward with nation-to-nation emergency management.

Property And Sovereignty: An Indian Reserve And A Canadian City, Douglas C. Harris

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Property rights, wrote Morris Cohen in 1927, are delegations of sovereign power. They are created by the state and operate to establish limits on its power. As such, the allocation of property rights is an exercise of sovereignty and a limited delegation of it. Sixty years later, Joseph Singer used Cohen’s conceptual framing in a critical review of developments in American Indian law. Where the US Supreme Court had the opportunity to label an American Indian interest as either a sovereign interest or a property interest, he argued, it invariably chose to the disadvantage of the Indians. Within Canada, Indigenous …

Wsáneć Legal Theory And The Fuel Spill At Selektel (Goldstream River), Robert Clifford

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SELEK̵TEL̵ (Goldstream River), on Coast Salish territory on Southern Vancouver Island in British Columbia, is an important salmon spawning river and fishing location for the WSÁNEĆ (Saanich) people. On April 16, 2011, it was also the site of a diesel and gasoline spill.

In this article, I explore the processes of revitalizing WSÁNEĆ law and how we might think about the revitalization of WSÁNEĆ law in the context of this fuel spill. While I do not present a definitive statement of the application of WSÁNEĆ law, I explore what is needed in order to understand WSÁNEĆ law on its own …

Contesting Unmodulated Deprivation: Sauvé V Canada And The Normative Limits Of Punishment, Efrat Arbel

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Despite a pressing need for judicial guidance on the legalities of administrative segregation, Canadian courts have yet to outline clear, comprehensive principles by which to assess its deployment. While some courts have rebuked the Correctional Service of Canada for the improper use of administrative segregation in specific cases, the regulation of the practice more broadly has proven elusive. This article turns to the Supreme Court of Canada’s prisoner voting rights decision in Sauvé v Canada for guidance in this regard. Since its release in 2002, Sauvé has been applied largely in cases involving political rights, and rarely in cases involving …

Instrumentalizing The Expressive: Transplanting Sentencing Circles Into The Canadian Criminal Trial, Toby S. Goldbach

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This Article examines reforms to criminal sentencing procedures in Canada, focusing on Aboriginal healing circles, which were incorporated as “sentencing circles” into the criminal trial. Using the lens of comparative law and legal transplants, this Article recounts the period of sentencing reform in Canada in the 1990s, when scholars, practitioners, and activists inquired into Aboriginal confrontation with the criminal justice system by comparing Euro-Canadian and Aboriginal justice values and principles. As a way to bridge the gap between vastly differing worldviews and approaches to justice, judges and Aboriginal justice advocates transplanted sentencing circles into the sentencing phase of the criminal …

Gladue: Beyond Myth And Towards Implementation In Manitoba, Debra Parkes, David Milward

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In the mid-1990s, section 718.2(e) of the Criminal Code of Canada was enacted in response to the alarming over-representation of Aboriginal people in Canada’s prisons and jails. Its admonition to consider “all available sanctions other than imprisonment that are reasonable in the circumstances… with particular attention to the circumstances of Aboriginal offenders” requires, according to the Supreme Court in the leading case of R v Gladue, that justice system participants do things differently in sentencing Aboriginal people. However, in the ensuing years the level of over-representation has got worse, rather than better. There are a number of different explanations that …

Indigeneity And Sovereignty In Canada's Far North: The Arctic And Inuit Sovereignty, Gordon Christie

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As the Arctic “opens up” to exploration and economic development, a new stage in colonization looms. This essay builds toward a vision of Arctic nation-states meeting with the Inuit to work out how they might together come to an understanding of how decisions about the future of the Arctic may be appropriately made. The Inuit are currently actively resisting the new wave of colonization within a framework built on the bedrock of nation-state sovereignty. The notion of “sovereignty” serves as a keystone in a system of controlling narratives, functioning to generate and police ways of thinking about decision-making processes, a …

Sentencing Circles, Clashing Worldviews, And The Case Of Christopher Pauchay, Toby S. Goldbach

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The case of Christopher Pauchay demonstrates some of the differences between predominant Euro-Canadian and First Nations approaches to dispute resolution. The principles of sentencing circles sometimes overlap with the principles of restorative justice and suggest their potential incorporation into the criminal justice system. The use of alternative processes that share some common values is not enough to overcome to chasm between Euro-Western and Aboriginal justice. Where underlying worldviews diff er, those who can choose between competing values amidst limited possibilities will likely choose the values that refl ect the conventional system. A comparison of Euro-Western and Aboriginal approaches to crime …

Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15, Margot Young

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This paper reviews the Supreme Court of Canada’s interpretation of s. 15 as a guarantee of substantive equality focusing on R. v. Kapp, a recent key section 15 case, as seen in perspective of Andrews v. Law Society of British Columbia (1989). R. v. Kapp (2008) brings together a dense complex of issues involving equality, affirmative action, race and Aboriginal rights. This paper takes on only a piece of this tangle – focusing on three issues that speak to the Court’s continuing failure to engage fully with the promise of Andrews’ rejection of a formal equality framework for section 15. …

Food Fish, Commercial Fish, And Fish To Support A Moderate Livelihood: Characterizing Aboriginal And Treaty Rights To Canadian Fisheries, Douglas C. Harris, Peter Millerd

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The Aboriginal peoples of Canada stand in a different legal relationship to the fisheries than non-Aboriginal Canadians. They do so by virtue of a long history with the fisheries that precedes non-Aboriginal settlement in North America, and because of the constitutional entrenchment of Aboriginal and treaty rights in Canadian law. This article describes the characterizations of Aboriginal and treaty rights to fish in Canadian law and discusses what it means for rights characterized in terms of food fishing, commercial fishing, and fishing to support a moderate livelihood, to receive constitutional protection. The article then problematizes these characterizations and suggests that …

Landing Native Fisheries: Indian Reserves And Fishing Rights In British Columbia, 1849-1925, Douglas C. Harris

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Landing Native Fisheries reveals the contradictions and consequences of an Indian land policy premised on access to fish, on one hand, and a program of fisheries management intended to open the resource to newcomers, on the other. Beginning with the first treaties signed on Vancouver Island between 1850 and 1854, Douglas Harris maps the connections between the colonial land policy and the law governing the fisheries. In so doing, Harris rewrites the history of colonial dispossession in British Columbia, offering a new and nuanced examination of the role of law in the consolidation of power within the colonial state. This …

The Boldt Decision In Canada: Aboriginal Treaty Rights To Fish On The Pacific, Douglas C. Harris

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The Oregon Boundary Treaty of 1846 established the forty-ninth parallel as the boundary between British and American interests in western North America. After 1846, Aboriginal peoples to the north of the border negotiated with the British Crown the terms of their coexistence with incoming settlers, those to its south with the United States. As a result, while some of the Coast Salish and Kwak’waka’wakw peoples in what would become British Columbia concluded treaties between 1850 and 1854 with the Crown’s representative, James Douglas, the tribes in the United States settled with the governor of the Washington territory, Isaac I. Stevens, …

Police Powers, Trespass And Expressive Rights Under The Canadian Constitution, W. Wesley Pue

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This paper traces the history of the ancillary police powers doctrine in Canadian police law/ constitutional law over the past 40 years. It identifies a doctrine creep wherein a heading of police power which had modest origins has expanded massively. The expansion is spatial and conceptual and reached its reductio ad absurdum when the entire central area of Quebec city was zoned into no-go areas by police acting without legislative authority, claiming the right to erect barricades in public streets, to issue passes (or not) as necessarily ancillary to police powers. The paper includes the only English translation of the …

Law's Empire, W. Wesley Pue, Rob Mcqueen

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Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, …

Writing The Circle: Judicially Convened Sentencing Circles And The Textual Organization Of Criminal Justice, Emma Cunliffe, Angela Cameron

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Trial court judges who work in remote Northern Canadian Aboriginal communities use judicially convened sentencing circles to gather information and develop sentencing recommendations in some intimate violence cases. Proponents claim that judicially convened sentencing circles are a restorative justice practice that heals the offender, his community, and the survivor of the violence. Proponents also look to sentencing circles as a tool to find a just outcome that minimizes Aboriginal men's incarceration. We use a methodology developed by feminist sociologist Dorothy Smith to consider whether the institutional priorities being established and approved by courts in sentencing circle cases provide adequate protection …

Anywhere But Here: Race And Empire In The Mabo Decision, Emma Cunliffe

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The High Court of Australia's decision in Mabo v. Queensland (No.2) is among the most widely known and controversial decisions the Court has yet delivered. In Mabo, a majority of the Court recognised a common law right to native title subject to certain criteria. In this article, I explore the competing visions of legal history that are implicit within Brennan J's leading judgment and Dawson J's dissent. In particular, I discuss the ways in which both of these judgments render an incomplete and contradictory documentary record more coherent than it really is. Suggesting that neither judgment manages to escape the …

Culture, Self-Determination And Colonialism: Issues Around The Revitalization Of Indigenous Legal Traditions, Gordon Christie

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This paper works from the assumption that the power of the state to determine and regulate debate around the reinvigoration of Indigenous legal traditions must be set aside, and that the path forward must be laid out by Indigenous peoples. Working out the implications of this assumption leads to ruminations on the roles that identity, colonialism, culture and self- determination must play in structuring debate around the rebuilding of these legal traditions. The position that begins to emerge from these ruminations focuses attention on the need to control processes of identity formation. Given the historical and ongoing impacts of colonial …

Developing Case Law: The Future Of Consultation And Accommodation, Gordon Christie

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The aim in this paper is twofold. First, the historical development of the case law around the duty to consult will be laid out (e.g. Delgamuukw v. British Columbia and subsequent cases) and an attempt will be made to make sense of this body of jurisprudence (on both doctrinal and critical levels). Second, an attempt will be made to read out of the current doctrine how future events may unfold 'on the ground' in the legal and political arena in British Columbia and elsewhere in Canada.

Respecting And Protecting The Sacred, Darlene Johnston

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In Canada, many citizens are justifiably proud of our country’s commitment to multiculturalism and respect for diversity. Cultural variations in language, art, law, and religion are not only tolerated but also celebrated. There is a growing appreciation that as human beings we share common, fundamental categories of experience, but that those experiences are mediated by and need to be understood in terms of our particular cultural contexts. Just as different cultures have different approaches to land and property, so too do traditions of sacredness vary. But respect for such variations, particularly as between Aboriginal peoples and newcomers to Canada, has …

Connecting People To Place: Great Lakes Aboriginal History In Cultural Context, Darlene Johnston

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The author was asked to review the historical connection of Aboriginal people to the land that lies between Lake Huron and Lake Erie. She is a descendant of Great Lakes Aboriginal ancestors. Aboriginal history and self-understanding is conveyed across generations by stories and teachings grounded in particular landscapes. As a legally-trained historian, the author is familiar with the methods and protocols used in the document-based tradition. Her research method combines oral tradition and archival materials in order construct historical narratives in their cultural context. The task of connecting particular people to a specific place in a given time period is …

Book Review: Peter H. Russell, Recognizing Aboriginal Title: The Mabo Case And Indigenous Resistance To English-Settler, W. Wesley Pue

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This provides a short review and commentary on Peter Russell's extraordinary new work on aboriginal peoples and settler-colony imperialism in Canada, the USA, Australian, and New Zealand.