Law Commons^™

Bibliography On Indigenous Rights In Canada, 1995-2023, Leslie Haddock, Kent Mcneil

All Papers

No abstract provided.

Writing And Resisting Colonial Genocide, Heidi Matthews, Luann Good Gingrich, Joel Ong

Articles & Book Chapters

Canada has pursued policies of Indigenous assimilation and annihilation, many of which continue today. Among others, these include ‘Indian residential schools’, the Indian Act, welfare-state child removals, the Sixties Scoop, the prohibition of cultural practices, forced sterilization and environmental destruction. We are scholars co-leading a large interdisciplinary programme of research studying ‘colonial genocide’. Our research seeks to understand how historic colonialism and its contemporary manifestations rely on genocidal logic for power and profit. While we begin in Turtle Island, our work has global application. The act of naming is a powerful analytical and political tool, and ‘genocide’ is one of …

Book Review: Canadian Justice, Indigenous Injustice: The Gerald Stanley And Colten Boushie Case, F. Tim Knight

Librarian Publications & Presentations

No abstract provided.

Infrastructure, Jurisdiction, Extractivism: Keywords For Decolonizing Geographies, Shiri Pasternak, Deborah Cowen, Robert Clifford, Tiffany Joseph, Dayna Nadine Scott, Anne Spice, Heidi Kiiwetinepinesiik Stark

Articles & Book Chapters

No abstract provided.

Impact Assessment In The Ring Of Fire: Contested Authorities, Competing Visions And A Clash Of Legal Orders, Dayna Nadine Scott

Commissioned Reports, Studies and Public Policy Documents

In 2007, a significant mineral deposit dubbed the “Ring of Fire” was discovered in the boreal peatlands in Treaty No.9 territory in the far north of Ontario. The original project proposal submitted to the Canadian Environmental Assessment Agency was for a chromite mine and an associated infrastructure corridor to connect the remote location to the provincial high-way system. As years went by without progress on the regulatory approvals, the proponent sold its claims at a loss. In the period that followed, Ontario negotiated with the Matawa First Nations (the nine most proximate First Nations) who were, as a united block, …

Operationalizing Indigenous-Led Impact Assessment, Dayna Scott, Jennifer Sankey, Laura Tanguay

Commissioned Reports, Studies and Public Policy Documents

Recent years have ushered in an explosion of interest and expertise in place-based, Indigenous-led impact assessment models. Across Canada and beyond, Indigenous communities have been developing and engaging with alternative approaches to “environmental assessment” (EA) or “impact assessment” (IA) in response to proposed developments in their homelands. These efforts are borne out of deep dissatisfaction and frustration; Indigenous peoples have repeatedly pointed to the inability of settler law on EA to protect their constitutionally recognized Aboriginal and Treaty rights, and to meaningfully engage with Indigenous laws, values, and perspectives regarding the socio-ecological risks posed by resource development projects. The inability …

The Role Of Traditional Environmental Knowledge In Planetary Well-Being, Deborah Mcgregor, Danika Billie Littlechild, Mahisha Sritharan

Articles & Book Chapters

No abstract provided.

Indigenous Peoples In Canada: A Bibliography Of Legal And Other Works To 1994, Kristen Clark, Leslie Haddock, Kent Mcneil

All Papers

No abstract provided.

Wise Practices: Indigenous-Settler Relations In Laurentian Great Lakes Fishery Governance And Water Protection, Kate J. Mussett, Susan Bell Chiblow, Deborah Mcgregor, Rod Whitlow, Ryan Lauzon, Kaitlin Almack, Nicholas Boucher, Alexander T. Duncan, Andrea J. Reid

Articles & Book Chapters

Ongoing tensions between Indigenous and non-Indigenous communities working in support of the protection and management of fish and water in North America have necessitated a shift from current structures towards relationships built upon and driven by respect, relevance, reciprocity, and responsibility. Similarly, the cumulative and evolving effects of climate change, industrialization, resource extraction, and displacement of Indigenous Peoples from their traditional and contemporary lands and waters requires purposeful application of decolonizing methods in aquatic systems management and protection, which in turn aids in the re-establishment of agency to Indigenous Peoples. This article endeavors to outline critical differences in ‘best …

Law, Labour And Landscape In A Just Transition, Adrian A. Smith, Dayna Nadine Scott

Articles & Book Chapters

Taking conflicts over new solar energy projects on the agricultural landscape in the global North as its backdrop, the chapter demonstrates how work and labour (including that performed in the North by workers from the global South) are erased both by the opponents and the proponents of such projects. The erasure is consistent with prevailing ways of knowing the human-environment nexus, shaped by an underlying political economy derivative of how international law has constructed and maintained the foundational liberal mythology that separates labour from land. Grounded in our commitment to pursuing a ‘just transition’ to decarbonisation – that is to …

Zaagtoonaa Nibi (We Love The Water): Anishinaabe Community-Led Research On Water Governance And Protection, Nicole Latulippe, Deborah Mcgregor

Articles & Book Chapters

This paper presents Indigenous community-led, collaborative, and community-engaged water governance research with a First Nations community in the Georgian Bay and Lake Huron region in northeastern Ontario, Canada. The methodology draws on Indigenous approaches to understanding and developing knowledge and is designed to build community capacity in research and in water protection and governance. This approach recognizes existing community strengths, including traditional knowledge, experiences, perspectives, and associated cultural perspectives and values, laws, responsibilities and lived experience in relation to water. Results identify and contextualize community-held responsibilities and legal principles pertaining to water that support culturally relevant water governance and strategic …

Book Review: Creating Indigenous Property: Power, Rights, And Relationships, F. Tim Knight

Librarian Publications & Presentations

No abstract provided.

From “Trust” To “Trustworthiness”: Retheorizing Dynamics Of Trust, Distrust, And Water Security In North America, Nicole J. Wilson, Teresa Montoya, Yanna Lambrinidou, Leila M. Harris, Benjamin J. Pauli, Deborah Mcgregor, Robert J. Patrick, Silvia Gonzalez, Gregory Pierce, Amber Wutich

Articles & Book Chapters

Assumptions of trust in water systems are widespread in higher-income countries, often linked to expectations of “modern water.” The current literature on water and trust also tends to reinforce a technoscientific approach, emphasizing the importance of aligning water user perceptions with expert assessments. Although such approaches can be useful to document instances of distrust, they often fail to explain why patterns differ over time, and across contexts and populations. Addressing these shortcomings, we offer a relational approach focused on the trustworthiness of hydro-social systems to contextualize water-trust dynamics in relation to broader practices and contexts. In doing so, we investigate …

Toward Indigenous Visions Of Nature-Based Solutions: An Exploration Into Canadian Federal Climate Policy, Graeme Reed, Nicolas D. Brunet, Deborah Mcgregor, Curtis Scurr, Tonio Sadik, Jamie Lavigne, Sheri Longboat

Articles & Book Chapters

Political traction for nature-based solutions is rapidly growing as governments recognize their role in addressing the simultaneous climate and biodiversity crises. While there has been recognition of the role of Indigenous Peoples in nature-based solutions, there has also been limited academic review on their relationship. This paper explores how the Government of Canada’s conceptualization of nature-based solutions either support or prevent Indigenous sustainable self-determination. Drawing on past policy frameworks, we construct a novel four-dimensional sustainable self-determination policy lens focused on: Indigenous knowledge systems; Indigenous jurisdiction over land; the full and effective participation of Indigenous Peoples; and Indigenous Peoples as rights-holders …

Procedural Injustice: Indigenous Claims, Limitation Periods, And Laches, Kent Mcneil, Thomas Enns

All Papers

When Indigenous peoples go to court to seek justice for the historical wrongs they have endured, the Crown often tries to prevent their claims from even being heard by pleading statutes of limitations and laches. The application of these barriers raises serious constitution issues that have been taken account of by the Supreme Court only in the context of declarations of constitutional invalidity. Arguments based on the constitutional division of powers and section 35(1) of the Constitution Act, 1982 have not been addressed by the Court. As a result, limitations statutes that vary from province to province have been applied …

The Legal Relations Of ‘Private’ Forests: Making And Unmaking Private Forest Lands On Vancouver Island, Estair Van Wagner

All Papers

While the vast majority of forestlands in Canada are considered ‘Crown land’, there are key areas of private forestland. On private land the incidents of fee simple ownership mean the owner emerges as land use decision maker – the “agenda setter” for the land. Yet a richer set of legal relations exists in these forests.

Indigenous legal orders derived from an enduring relationship with the land and place also govern forestlands. Using the case of the Esquimalt and Nanaimo Railway lands in British Columbia, this article explores the intersection between historical and contemporary human-forest relations upheld by Anglo-Canadian law and …

Welcome Home: Aboriginal Rights Law After Desautel, Kent Mcneil, Kerry Wilkins

All Papers

In R v Desautel, decided April 23, 2021, a majority of the Supreme Court of Canada held, for the first time, that an Indigenous community located in the United States, whose members are neither citizens nor residents of Canada, can have an existing Aboriginal right, protected by section 35 of the Constitution Act, 1982, to hunt a specified area within Canada. This will be so, the Supreme Court majority held, where the community can show that it descends from (is a successor of) an Indigenous community that was present in what is now Canada at the time of …

The Resilience Of Métis Title: Rejecting Assumptions Of Extinguishment, Karen Drake, Adam James Patrick Gaudry

Articles & Book Chapters

For many years, the Crown disputed Métis title claims by contending that any previously existing Métis rights, including title, had been extinguished. We argue, however, that this is not the case in at least some areas of the Métis homeland. In this chapter, we review the three means by which Aboriginal rights can be extinguished in Canadian law: by surrender, by legislation prior to 17 April 1982, and by constitutional amendment. This chapter builds on our previous work, in which we argue that historical Métis land use patterns can satisfy the test for Aboriginal title. The relevant case law here …

Who Are The Métis? The Role Of Free, Prior And Informed Consent In Identifying A Métis Rights-Holder, Karen Drake

Articles & Book Chapters

The rise of the duty to consult and accommodate has generated an increase in Indigenous-industry agreements. For proponents tasked with carrying out the procedural aspects of the duty, Indigenous-industry agreements offer relative certainty compared to the ambiguity involved in determining whether the duty has been legally satisfied. For Indigenous peoples, although the drawbacks of Indigenous-industry agreements are well documented, these agreements can potentially instantiate the principle of free, prior and informed consent. Compared to First Nation and Inuit peoples, though, Métis rights-holders are entering into comparatively fewer Indigenous-industry agreements.One cause of this phenomenon is the supposed uncertainty surrounding the question …

The Factual Basis For Indigenous Land Rights, Kent Mcneil

Articles & Book Chapters

Groundbreaking judgments in Australia and Canada in the 1990s reveal that Indigenous land rights depend on evidence of Indigenous occupation and law when the British Crown asserted sovereignty. Looking back at earlier Indigenous rights decisions, it is apparent that they were not based on facts, but on prejudicial and erroneous assumptions about Indigenous peoples. In St. Catherine’s Milling (1888), Lord Watson said the rights of the Ojibwe Indians were based solely on the goodwill of the Crown, a conclusion that evidently stemmed from the trial judge’s racist assessment of Ojibwe society. In Cooper v Stuart (1889), Lord Watson wrongly described …

Indigenous Law And The Common Law, Kent Mcneil

Articles & Book Chapters

Indigenous law does not need to be incorporated into Canadian law by treaty, statute, or judicial pronouncement to be part of the domestic law of Canada. Indigenous law exists and is followed in Indigenous communities. It is living law that predated European colonization and has continued up to the present. However, Canadian judges generally are not familiar with it in the way they are with the common law and civil law. Consequently, when relied upon in court evidence of it has to be presented by the testimony of experts, such as Elders and Indigenous knowledge keepers. This is simply a …

Indigenous Environmental Justice And Sustainability, Deborah Mcgregor

Articles & Book Chapters

This chapter offers an alternative vision for sustainable futures involving self-determined Indigenous environmental justice (EJ). It builds upon a distinct understanding of Indigenous EJ which asserts that the components necessary for Indigenous EJ are Indigenous knowledge systems, legal orders, and conceptions of justice that have existed for thousands of years.1 This contribution will also offer preliminary thoughts on the need to decolonize internationally adopted conceptions of sustainable development expressed more recently through the post-2015 United Nations sustainable development agenda. Indigenous environmental injustice is very much an outcome of “unsustainable” and detrimental “development,” as well as gross violations of human and …

Notes From The Periphery: Finding More Than (Non)Ownership In Property Law?, Estair Van Wagner

Articles & Book Chapters

Property law structures the way we make decisions about how we live together and with the world around us. In doing so, it shapes, but is also shaped by, our relationships with the places we inhabit and encounter. Traditionally, non-owners are defined by their distance and exclusion from the primary legal relationship and their lack of enforceable interests. Yet, land use conflicts continue to arise because people routinely assert relationships with land and resources that they are not formally recognised as owning but with which they are deeply entangled. This chapter touches briefly on three examples: the relations of Indigenous …

Extracting Indigenous Jurisdiction On Private Land: The Duty To Consult And Indigenous Relations With Place In Canadian Law, Estair Van Wagner

Articles & Book Chapters

Indigenous relations with land are grounded in place-based legal orders which have been regulating the territories now making up Canada for millennia (Borrows 2010, 2018; McGregor 2010). Judicial consideration of Indigenous relations with place has focused on the duty to consult and accommodate with respect to ‘Crown land’ – lands for which federal and provincial governments are the deemed owners. This emphasis on Crown lands is logical – 89 per cent of land in Canada is held by either the federal or provincial Crown (Neimanis 2013). Indigenous claims often expressly exclude private land, wary of courts’ willingness to unsettle third-party …

R V Sparrow, Kent Mcneil

Articles & Book Chapters

On appeal from the Supreme Court of Canada.

In 1984, Ronald Sparrow was charged under the federal Fisheries Act with fishing in the Fraser River in British Columbia with a drift net longer than permitted by the Musqueam First Nation’s food fishing licence. He admitted to fishing with such a net, but raised s 35(1) of the Constitution Act, 1982, as a defence. As a member of the Musqueam Nation, he claimed that he has an Aboriginal right, protected by that subsection, to fish for food, and that the restriction on net length interferes with this right and is …

Concluding Remarks: Miyo-Wîcêhtowin, R V Stanley, And Our Future As Lawyers, Signa A. Daum Shanks

Articles & Book Chapters

Miyo-wîcêhtowin. It is a term I have learned to express the idea of good behaviour; responsibility to others; and not forgetting those who are the most forgotten, the most in need of help, those whose ways we most benefit from. It is Cree, but its nature and scope is not necessarily unique to Cree circles. It is reinforced by religious references, standards for professional certification and volunteer groups, and personal choices. It is also woven into Canada’s legal system, whether in judicial decisions or in academic or professional discussions. So while we can see it when appreciating cultural tenets or …

Shared Indigenous And Crown Sovereignty: Modifying The State Model, Kent Mcneil

Articles & Book Chapters

When European nations colonized North America, their dealings with one another were based on the state model of territorial sovereignty. At the same time, they acknowledged the independence of the Indigenous nations and entered into nation-to-nation treaties with them, whereby sovereignty was to be shared. Consequently, the Westphalian concept of absolute state sovereignty has never applied in North America. While the European nations acquired sovereignty vis-à-vis one another in the international law system that they created, the Indigenous nations retained internal sovereignty and the right to continue governing themselves. This modified concept of state sovereignty has been acknowledged by the …

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

Articles & Book Chapters

In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered Stanley’s farm. Boushie died instantly. Stanley relied on a hangfire defence, rooted in the defence of accident, and was found not guilty by an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime) that raised much evidence of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass, without formerly raising the defence of property or trespass, shaped the trial by providing a racist, anti-Indigenous-tinged …

Indigenous Constitutionalism And Dispute Resolution Outside The Courts: An Invitation, Karen Drake

Articles & Book Chapters

The Supreme Court of Canada's jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facilitates dispute resolution between Canadian governments and Indigenous peoples grounded in Indigenous constitutionalism. To avoid a pan-Indigenous approach, this article focuses on Anishinaabe constitutionalism as one example of Indigenous constitutionalism. It highlights points of contrast between Anishinaabe constitutionalism's and liberalism's foundational norms and dispute resolution procedures. This article argues that a hybrid institution—combining features of both liberalism and Indigenous constitutionalism—would merely reproduce …

Truth, Reconciliation, And The Cost Of Adversarial Justice, Trevor C. W. Farrow

Articles & Book Chapters

That Indigenous people in Canada were victimized for well over a century by the residential schools system for Aboriginal children is not in question. The system, which amounted to an “assault on child and culture,” was designed to “kill the Indian in the child.” Whether the legal system – purporting to provide some form of compensation in the context of claims by survivors and their families – has provided justice is a much more open question. The costs – financial, social, health, time, and so on – associated with pursuing the resolution of residential schools claims through the justice system …