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Indigenous, Indian, and Aboriginal Law

Schulich School of Law, Dalhousie University

Journal

Treaty

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Articles 1 - 5 of 5

Full-Text Articles in Law

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 Oct 2010

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 Apr 2010

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 …


Understanding The Progression Of Mi'kmaw Law, Jaime Battiste Oct 2008

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 …


Ghosts In The Court: Jonathan Belcher And The Proclamation Of 1762, Eric Adams Oct 2004

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 …


Prosecuting The Fishery: The Supreme Court Of Canada And The Onus Of Proof In Aboriginal Fishing Cases, Peggy J. Blair Apr 1997

Prosecuting The Fishery: The Supreme Court Of Canada And The Onus Of Proof In Aboriginal Fishing Cases, Peggy J. Blair

Dalhousie Law Journal

In Sparrow and other decisions, the Supreme Court of Canada has outlined certain tests which must be met by the Crown and defence in the trial of aboriginal fishing cases where s.35 rights are at issue. This article describes the shifting burdens of proof which have resulted from those tests. The author argues that the Supreme Court of Canada has imposed procedural and substantive requirements of proof on the defence which may in themselves be unconstitutional.