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Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson
Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson
Osgoode Hall Law Journal
Environmental assessment within the process of regulatory review is recognized as the preferred means for carrying out the duty to consult and accommodate Aboriginal rights in administrative decisions over proposed resource development. Recent evidence suggests that integrating the duty to consult into National Energy Board (NEB) proceedings and subsuming the law of Aboriginal consultation under principles of administrative justice have not advanced the goal of reconciliation. This article considers whether the statutory mandate of the National Energy Board requires it to have sufficient regard to Aboriginal rights in a manner consistent with the adjudication of constitutional issues in administrative law. …
From Judging Culture To Taxing "Indians": Tracing The Legal Discourse Of The "Indian Mode Of Life", Constance Macintosh
From Judging Culture To Taxing "Indians": Tracing The Legal Discourse Of The "Indian Mode Of Life", Constance Macintosh
Osgoode Hall Law Journal
In this article I consider how judicial decision making characterizes Indigenous peoples' culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …
Provincial Fiduciary Obligations To First Nations: The Nexus Between Governmental Power And Responsibility, Leonard I. Rotman
Provincial Fiduciary Obligations To First Nations: The Nexus Between Governmental Power And Responsibility, Leonard I. Rotman
Osgoode Hall Law Journal
The Canadian Crown's fiduciary duty to First Nations is entrenched in Canadian Aboriginal rights jurisprudence. More than ten years after the Supreme Court of Canada's decision in Guerin, however, yet to be ascertained are the various emanations of the Crown bound by that duty. This paper argues that both federal and provincial Crowns are properly bound by fiduciary obligations to First Nations. It also suggests that the basis of this assertion may be found in existing jurisprudence, the Canadian Constitution, the spirit and intent of Indian treaties, and in Aboriginal understandings of "the Crown."