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Full-Text Articles in Law
Aboriginal Forestry: Community Management As Opportunity And Imperative, Deborah Curran, Michael M'Gonigle
Aboriginal Forestry: Community Management As Opportunity And Imperative, Deborah Curran, Michael M'Gonigle
Osgoode Hall Law Journal
In recognition that forests are one of their greatest resources, Aboriginal peoples are considering how altered tenure arrangements might uphold traditional values, including ecological integrity, while providing economic and employment opportunities. However, the federal and provincial forest management structures have historically precluded First Nations from helping to define, and participate in, the forest industry. The authors explore the legal and regulatory basis of forest management in Canada, and assess how it facilitates or impedes Aboriginal management of traditional areas. This is done through a legislative and policy analysis, and through the use of case studies from across Canada. The authors …
The Onus Of Proof Of Aboriginal Title, Kent Mcneil
The Onus Of Proof Of Aboriginal Title, Kent Mcneil
Osgoode Hall Law Journal
In the Delgamuukw decision, the Supreme Court of Canada clearly placed the onus on the Aboriginal nations to prove their title by showing occupation of lands at the time the Crown asserted sovereignty. In this article, it is argued that the common law could assist them in this respect. They should be able to rely on present or past possession to raise a presumption of Aboriginal title, and so shift the burden onto the Crown to prove its own title. Moreover, Aboriginal nations may be more successful if they bring an action for trespass or for recovery of possession of …
Sovereignty's Alchemy: An Analysis Of Delgamuukw V. British Columbia, John Borrows
Sovereignty's Alchemy: An Analysis Of Delgamuukw V. British Columbia, John Borrows
Osgoode Hall Law Journal
In Delgamuukw v. British Columbia, the Supreme Court of Canada issued its long-awaited judgment on the status of Aboriginal title under section 35(1) of the Constitution Act, 1982. The decision was regarded as highly significant because it seemed to fundamentally alter the law of Aboriginal rights. This article suggests that while the case has somewhat positively changed the law to protect Aboriginal title, it has also simultaneously sustained a legal framework that undermines Aboriginal land rights. In particular, the decision's unreflective acceptance of Crown sovereignty places Aboriginal title in a subordinate position relative to other legal rights. This article examines …