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Full-Text Articles in Law
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 …
Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa Daum Shanks
Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa Daum Shanks
Dalhousie Law Journal
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 …
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 …
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 …
Indigenous Self-Determination And Research On Human Genetic Material: A Consideration Of The Relevance Of Debates On Patents And Informed Consent, And The Political Demands On Researchers, Constance Macintosh
Indigenous Self-Determination And Research On Human Genetic Material: A Consideration Of The Relevance Of Debates On Patents And Informed Consent, And The Political Demands On Researchers, Constance Macintosh
Articles, Book Chapters, & Popular Press
Genetic research involving indigenous populations provokes many legal, ethical and cultural issues. Arguably, of these issues, two dominate the literature. The first is whether human genetic materials are or ought to be patentable, which is often argued against on the basis that such patents offend human dignity generally and are culturally offensive to many indigenous peoples. The second is whether researchers must obtain informed consent from representatives of indigenous groups as a whole before attempting to obtain consent for participation from individual members of that group. I argue that there is limited benefit in continuing to debate the patentability of …
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 …
Getting Their Feet Wet: The Supreme Court And The Practical Implementation Of Treaty Rights In The Marshall Case, Phillip Saunders
Getting Their Feet Wet: The Supreme Court And The Practical Implementation Of Treaty Rights In The Marshall Case, Phillip Saunders
Dalhousie Law Journal
Judicial decisions which recognize aboriginal or treaty rights to natural resources inevitably lead on to a process of negotiation, as governments and aboriginal and other users of the resource define the access and management regimes which allow for practical implementation of the legal rights. Courts should be cognizant of the impact of their decisions on such negotiations, and provide adequate clarity and substantive guidance to negotiators. This article considers the decisions of the Supreme Court of Canada in the Marshall case from this perspective, and details the shortcomings which made the prospects for successful negotiations less favourable. The weaknesses in …
Of Provinces And S.35 Rights, Kerry Wilkins
Of Provinces And S.35 Rights, Kerry Wilkins
Dalhousie Law Journal
It is now well established that federal law and regulatory activity may interfere with the exercise of aboriginal peoples' existing treaty and aboriginal rights, despite s. 35(1) of the Constitution Act, 1982, whenever the federal government can justify the interference. It is not yet clear, though, what power, if any, Canada's provinces have to regulate, even in justified ways, such rights and their exercise. This article argues that the provinces, as a general rule, have no such authority. Except in certain very specific and isolated circumstances, they have no power, even apart from s. 35, to regulate the exercise of …