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Free, Prior, And Informed Consent And Reconciliation In Canada: Proposals To Implement Articles 19 And 32 Of The Un Declaration On The Rights Of Indigenous Peoples, Sasha Boutilier 2017 University of Toronto

Free, Prior, And Informed Consent And Reconciliation In Canada: Proposals To Implement Articles 19 And 32 Of The Un Declaration On The Rights Of Indigenous Peoples, Sasha Boutilier

Western Journal of Legal Studies

Canadian Prime Minister Justin Trudeau has repeatedly promised to meet the Indian Residential School Truth and Reconciliation Commission’s recommendation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as a framework for reconciliation. This commitment is significant as Canada’s position on UNDRIP has been highly contested. In particular, the compatibility of UNDRIP’s Free, Prior, and Informed Consent (FPIC) standard with Canadian law has been repeatedly called into question. This work evaluates the possibility and importance of implementing FPIC in Canada. It begins with an overview of FPIC internationally and of FPIC in relation ...


Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai 2017 Osgoode Hall Law School of York University

Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai

Articles & Book Chapters

Large parts of Canada, from Ontario to parts of British Columbia and north to the Northwest Territories, are covered by the “numbered treaties”, signed between First Nations and the Crown between 1871 and 1929. These treaties provide for the continuation of Indigenous hunting, fishing and harvesting activities until the land is “taken up” by the provincial Crown for activities such as mining, lumbering and settlement. This draft book chapter argues that consent of First Nations should be required before further development that impact on their harvesting rights. The consent standard has already been widely adopted in the private sector both ...


United States V. Washington, Kirsa Shelkey 2016 University of Montana

United States V. Washington, Kirsa Shelkey

Public Land and Resources Law Review

Pacific Northwest Treaties, now known as the Stevens Treaties, were negotiated in the 1850’s between the U.S. and Indian tribes, including the Suquamish Indian Tribe, Jamestown S'Klallam, Lower Elwha Band of Klallams, Port Gamble Clallam, Nisqually Indian Tribe, Nooksack Tribe, Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe, Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribes, Lummi Indian Nation, Quinault Indian Nation, Puyallup Tribe, Hoh Tribe, Confederated Tribes and Bands of the Yakama Indian Nation, Quileute Indian Tribe, Makah Indian Tribe, Swinomish Indian Tribal Community, and the Muckleshoot Indian Tribe (“Tribes”). The Stevens Treaties stated that “the right ...


Nuclear Waste And Native America: The Mrs Siting Exercise, M. V. Rajeev Gowda, Doug Easterling 2016 University of New Hampshire

Nuclear Waste And Native America: The Mrs Siting Exercise, M. V. Rajeev Gowda, Doug Easterling

RISK: Health, Safety & Environment

Drs. Gowda & Easterling provide cross-cultural perspectives on issues of risk perception, equity and policy as they affect nuclear waste storage on Native American sites.


Why Coywolf Goes To Court, Signa A. Daum Shanks 2016 Osgoode Hall Law School of York University

Why Coywolf Goes To Court, Signa A. Daum Shanks

Signa A. K. Daum Shanks

This article is an effort influenced by previous works considered part of "trickster" discourse. But unlike other trickster stories meant to illustrate First Nations’ contents and processes, this presentation creates a Métis-specific example of trickster methodology and knowledge. Similar to the historic role Métis individuals have had in Canadian history, this effort contains a type of "translator" system within its citations so that the main story parallels information about trends in Canadian legal analysis. By having this format, it is hoped that those less familiar with Métis courtroom struggles will gain insight into how the pursuit of Métis constitutionalism both ...


Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai 2016 Osgoode Hall Law School of York University

Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai

Shin Imai

Large parts of Canada, from Ontario to parts of British Columbia and north to the Northwest Territories, are covered by the “numbered treaties”, signed between First Nations and the Crown between 1871 and 1929. These treaties provide for the continuation of Indigenous hunting, fishing and harvesting activities until the land is “taken up” by the provincial Crown for activities such as mining, lumbering and settlement. This draft book chapter argues that consent of First Nations should be required before further development that impact on their harvesting rights. The consent standard has already been widely adopted in the private sector both ...


'In A Settled Country, Everyone Must Eat': Four Questions About Transnational Private Regulation, Migration, And Migrant Work, Amar Bhatia 2016 Osgoode Hall Law School of York University

'In A Settled Country, Everyone Must Eat': Four Questions About Transnational Private Regulation, Migration, And Migrant Work, Amar Bhatia

Amar Bhatia

This introduction speaks to one of the questions raised by transnational private regulation: is migration always transnational? One quick answer to this question might be ‘no’. If migration is concerned with the international movement of people, then what has been called the approach of methodological nationalism would force out the ‘trans-­‐’ and always substitute the international. Since methodological nationalism is an approach characterized by an overdue emphasis on states and their external borders as the sole arbiters for what registers as movement, then this answer would not surprise anyone. However, if we do not take a monopolistic approach to borders ...


We Are All Here To Stay? Indigeneity, Migration, And ‘Decolonizing’ The Treaty Right To Be Here, Amar Bhatia 2016 Osgoode Hall Law School of York University

We Are All Here To Stay? Indigeneity, Migration, And ‘Decolonizing’ The Treaty Right To Be Here, Amar Bhatia

Amar Bhatia

This article examines issues of transnational migration in the settler-colonial context of Canada. First, I review some of the recent debates about foregrounding Indigeneity and decolonization in anti-racist thought and work, especially in relation to critical and anti-racist approaches to migration. The article then moves from this debate to the question of ‘our right to be here’, the relationship of this right to the treaties, and how migrant rights and treaty relations perspectives might interact in a context that must be informed by Indigenous laws and legal traditions.


'Prisoner Never Gave Me Anything For What He Done:' Aboriginal Voices In The Criminal Court, Shelley A. M. Gavigan 2016 Osgoode Hall Law School of York University

'Prisoner Never Gave Me Anything For What He Done:' Aboriginal Voices In The Criminal Court, Shelley A. M. Gavigan

Shelley A. M. Gavigan

Aboriginal people participated in different ways in the criminal process in the early years of the North-West Territories region of Canada, including, as accused persons, as Informants, and as witnesses. Their physical participation was often mediated by interpreters, both linguistic and cultural, and their signatures invariably marked “X” on their depositions. Scholarship that has examined the relationship of Aboriginal peoples to the criminal law has tended to interrogate the criminalization and moral regulation strategies implicit in the process of colonization and domination of the First Peoples. This paper will discuss less visible aspects of the legalized processes of colonization: (1 ...


Oral Tradition And The Kennewick Man, Cathay Y. N. Smith 2016 Alexander Blewett III School of Law at the University of Montana

Oral Tradition And The Kennewick Man, Cathay Y. N. Smith

Faculty Law Review Articles

No abstract provided.


Getches-Wilkinson Center Newsletter, Fall 2016, University of Colorado Boulder. Getches-Wilkinson Center for Natural Resources, Energy, and the Environment 2016 University of Colorado Law School

Getches-Wilkinson Center Newsletter, Fall 2016, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.


Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks 2016 Osgoode Hall Law School of York University

Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks

Sonia Lawrence

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a ...


Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks 2016 Osgoode Hall Law School of York University

Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks

Signa A. K. Daum Shanks

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a ...


Indigenous Territorial Rights In The Common Law, Kent McNeil 2016 Osgoode Hall Law School of York University

Indigenous Territorial Rights In The Common Law, Kent Mcneil

Kent McNeil

This chapter compares Indigenous territorial rights in the United States, Canada, Australia and New Zealand thematically under four headings: the sources, nature and content, proof, and protection of Indigenous rights. The first two are closely linked, as the nature and content of Indigenous rights are determined largely by their sources. Likewise, proof of Indigenous rights also depends on their sources. The protection they are accorded in any particular nation-state depends mainly on its constitution, with recent additional protection emerging in international law. The major premise of the chapter is that Indigenous rights are territorial, encompassing real property rights and governmental ...


Ancestral Lands, Alien Laws: Judicial Perspectives On Aboriginal Title, Brian Slattery 2016 Osgoode Hall Law School of York University

Ancestral Lands, Alien Laws: Judicial Perspectives On Aboriginal Title, Brian Slattery

Brian Slattery

This monograph examines critically the various ways in which Commonwealth and American judges have dealt with the issue of the land rights of Aboriginal peoples in the past. It devotes particular attention to the doctrine of Aboriginal title developed by Chief Justice Marshall of the United States Supreme Court. The nature and legal basis of that doctrine are reviewed in detail, and the relevance of the doctrine to Canadian and Commonwealth jurisdictions is explored.


The Generative Structure Of Aboriginal Rights, Brian Slattery 2016 Osgoode Hall Law School of York University

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 2016 Osgoode Hall Law School of York University

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 ...


Aboriginal Title And Indigenous Governance: Identifying The Holders Of Rights And Authority, Kent McNeil 2016 Osgoode Hall Law School of York University

Aboriginal Title And Indigenous Governance: Identifying The Holders Of Rights And Authority, Kent Mcneil

Kent McNeil

In this paper, I am going to discuss three categories of decisions: (1) Aboriginal title cases; (2) Aboriginal rights cases apart from title; and (3) duty to consult cases. My focus is mainly on Supreme Court decisions involving First Nation Indigenous people arising in non-treaty areas. The issue of the identity of Aboriginal title and rights holders can also arise in cases involving the Inuit and the Métis, but there is a scarcity of case law on the issue where the Inuit are concerned, and the unique circumstances of the Métis and the current length of this paper led me ...


The Jurisdiction Of Inherent Right Aboriginal Governments, Kent McNeil 2016 Osgoode Hall Law School of York University

The Jurisdiction Of Inherent Right Aboriginal Governments, Kent Mcneil

Kent McNeil

Since the recognition of Aboriginal and treaty rights in Canada by section 35(1) of the Constitution Act, 1982, the inherent right of the Aboriginal peoples to govern themselves has become a generally accepted aspect of Canadian constitutional law. But what is the scope of the governmental authority, or jurisdiction, that is exercisable by inherent right Aboriginal governments? And how does the jurisdiction of Aboriginal governments interact with the jurisdiction of other governments in Canada, especially the federal and provincial governments? This research paper will attempt to answer these questions in a general way, without attempting to determine or assess ...


La Relativité De La Souveraineté De Jure Au Canada, 1600-2016, Kent McNeil 2016 Osgoode Hall Law School of York University

La Relativité De La Souveraineté De Jure Au Canada, 1600-2016, Kent Mcneil

Kent McNeil

This paper was presented at the Conference "Les Souverainetés Indigènes" which occurred at the University of Nantes, March 24-26, 2016. A programme is available through perma.cc (link opens in new tab).


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