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A Reply To Professor Pothier's Review Of Power Without Law: The Supreme Court Of Canada, The Marshall Decisions And The Failure Of Judicial Activism, Alex M. Cameron
A Reply To Professor Pothier's Review Of Power Without Law: The Supreme Court Of Canada, The Marshall Decisions And The Failure Of Judicial Activism, Alex M. Cameron
Dalhousie Law Journal
The Spring 2010 edition of the Dalhousie Law Journal contains an article by Professor Dianne Pothier, discussing my book, Power Without Law: The Supreme Court of Canada, The Marshall Decisions and the Failure of JudicialActivism. In the review, Professor Pothier strongly disagrees with the book's critique of the Supreme Court of Canada's majority decision in R. v. Marshall. In particular, she disagrees with the argument that the alleged treaty right of aboriginals to hunt, fish, gather and trade for necessaries, described in Justice Binnie's majority decision, is constitutionally flawed. Professor Pothier also suggests that the argument is the central thesis …
Alex M. Cameron, Power Without Law. The Supreme Court Of Canada, .The Marshall Decisions, And The Failure Of Judicial Activism, Dianne Pothier
Alex M. Cameron, Power Without Law. The Supreme Court Of Canada, .The Marshall Decisions, And The Failure Of Judicial Activism, Dianne Pothier
Dalhousie Law Journal
Alex Cameron's book, Power WithoutLaw, is a scathing critique ofthe Supreme Court of Canada's 1999 decisions in R. v. Marshall upholding Donald Marshall Jr.'s Mi'kmaq treaty claim. Cameron's book has attracted a lot of attention because of the author's position as Crown counsel for the government of Nova Scotia. Cameron was not involved as a lawyer in the Marshallcase itself. As a fisheries prosecution, Marshallwas a matter of federal jurisdiction pursuant to s. 91(12) of the Constitution Act, 1867, and Nova Scotia chose not to intervene. However, Cameron did become involved in a subsequent case dealing with the same series …
Brightening The Covenant Chain: Aboriginal Treaty Meanings In Law And History After Marshall, Mark D. Walters
Brightening The Covenant Chain: Aboriginal Treaty Meanings In Law And History After Marshall, Mark D. Walters
Dalhousie Law Journal
The decision of the Supreme Court of Canada in R. v. Marshall raises some difficult questions about the interpretation of Crown-Aboriginal treaties, especially treaties dating from the eighteenth century. The Court acknowledged that the treaty context is important to establishing the meaning of treaty texts, and Aboriginal and non-Aboriginal perspectives must be considered. As a result, judges must have regard to historical analyses of Crown-Aboriginal relations when interpreting these old treaties. In this article, the author explores some of the complex theoretical problems that such legal-historical analyses create, focusing in particular upon the possibility that lawyers and judges may reach …
Du Dialogue Au Monologue - Un Commentaire Sur I'Arrêt R. V. Marshall, Nathalie Des Rosiers
Du Dialogue Au Monologue - Un Commentaire Sur I'Arrêt R. V. Marshall, Nathalie Des Rosiers
Dalhousie Law Journal
The author develops a model of constitutional dialogue which aims at helping the resolution of majority-minority conflicts. The model is applied to the aboriginal rights context. The author concludes that because of the ambivalences expressed by the Supreme Court of Canada in the Van der Peet case in particular, the federal government has not incorporated the Sparrow-Badger approach in its litigation and has failed even to attempt to comply with the justification requirements. This failure of the federal government to endorse the Sparrow-Badger approach in its continuing litigation strategy is the real tragedy in the Marshall case.
An Empty Shell Of A Treaty Promise: R. V. Marshall And The Rights Of The Non-Status Indians, Pamela Palmater
An Empty Shell Of A Treaty Promise: R. V. Marshall And The Rights Of The Non-Status Indians, Pamela Palmater
Dalhousie Law Journal
One of the difficult issues presented by R. v. Marshall is that of who is a Mi'kmaq person, or more generally who is entitled to claim to be a beneficiary of the Treaties of 1760-61. This paper examines a number of possible approaches to this matter, including ones based on residence (on or off reserve), descent and the terms of the Indian Act. It notes the deficiencies of existing tests and of Canadian case law that has addressed Aboriginal identity in other contexts. It concludes by noting that the negotiations which must follow in the wake of Marshall present the …