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Articles 31 - 38 of 38
Full-Text Articles in Law
A Colonial Reading Of Recent Jurisprudence: Sparrow, Delgamuukw And Haida Nation, Gordon Christie
A Colonial Reading Of Recent Jurisprudence: Sparrow, Delgamuukw And Haida Nation, Gordon Christie
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Throughout Canada's long colonial relationship with Aboriginal nations, the Crown and the judiciary have worked in tandem. Historically, executive and legislative arms of government developed and implemented dispossessive and oppressive colonial policies and legal regimes, while the courts consciously developed conceptual frameworks meant to justify the taking of lands and the denial of Aboriginal sovereignty. This essay explores judicial attempts to justify the taking of lands and the denial of Aboriginal sovereignty, with the focus on how doctrinal law has conceived the transition from a world in which collective understandings of Aboriginal nations define the nature of their land interests …
Law, Theory And Aboriginal Peoples, Gordon Christie
Law, Theory And Aboriginal Peoples, Gordon Christie
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Some Aboriginal people see domestic Canadian law as alien and oppressive. This paper explores one source of this perception. By examining the layers of theory and world-view upon which the law is based, it finds conflict with the sensibilities of Aboriginal peoples. The author argues that a liberal vision supports and enlivens the law, and because it is grounded in this vision, the law cannot protect the interests of Aboriginal peoples. In analyzing the current legal approach to the protection of Aboriginal interests, an alternative liberal argument based on group autonomy is also considered. By examining the debate between liberal …
Indigenous Territoriality In Canadian Courts, Douglas C. Harris
Indigenous Territoriality In Canadian Courts, Douglas C. Harris
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Territoriality describes the communication or assignment of meaning to particular boundaries in order to assert control over a define space. It encompasses the strategies, used by those attempting to maintain control and those seeking to acquire it, to give meaning to the spatial boundaries that demarcate jurisdiction. This chapter explores the competing territorialities of the Canadian state and indigenous peoples in the context of litigation over Aboriginal rights to fish. Access to and management of the fisheries have been and continue to be one of the principal points of conflict between the state and indigenous peoples. The disputes frequently lead …
The Court's Exercise Of Plenary Power: Rewriting The Two-Row Wampum, Gordon Christie
The Court's Exercise Of Plenary Power: Rewriting The Two-Row Wampum, Gordon Christie
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This paper focuses on the Supreme Court of Canada's decision in Mitchell v. M.N.R., [2001] S.C.R. 911, as an illustration of what is wrong in contemporary jurisprudence on Aboriginal rights. The concurring judgment of Binnie J. is discussed as a potential preview to the Court's approach to claims of Aboriginal self-determiniation. This paper digs into the ruins of Aboriginal law, to make sense of the doctrine of sovereign incompatibility, to come to some sense of how the field of Aboriginal law has come to trap Aboriginal peoples. The paper closes with suggestions about how Aboriginal rights might be resurrected from …
Delgamuukw And The Protection Of Aboriginal Land Interests, Gordon Christie
Delgamuukw And The Protection Of Aboriginal Land Interests, Gordon Christie
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To determine the extent to which Aboriginal title-holders enjoy control over Aboriginal title lands, it is necessary to explore fiduciary doctrine, for the application of this doctrine to the question of legislative infringement determines the limits within which Aboriginal title-holders can expect to see their interests respected. In Delgamuukw the Supreme Court of Canada adopted and applied an understanding of the Crown-Aboriginal fiduciary relationship it developed in Gladstone. In so doing the Supreme Court set out the power of Canadian governments to control the uses to which Aboriginal title lands can be put. Ironically, since Aboriginal title is characterized by …
Territoriality, Aboriginal Rights, And The Heiltsuk Spawn-On-Kelp Fishery, Douglas C. Harris
Territoriality, Aboriginal Rights, And The Heiltsuk Spawn-On-Kelp Fishery, Douglas C. Harris
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In 1988, the Department of Fisheries and Oceans ("DFO') charged two Heiltsuk brothers with attempting to sell herring spawn-on-kelp without a J-license. In 1989, the Heiltsuk Tribal Council initiated legal action to compel the DFO to issue it additional J-licenses and to recognize Heiltsuk jurisdiction to manage the fishery in their traditional territory on the central coast. An analysis of these cases and of the historical regulation of the herring spawn fisheries reveals a continuing conflict between the state and a First Nation over a fishery and over the legitimacy of increasingly intertwined legal systems. The Heiltsuk defense of their …
Aboriginal Rights, Aboriginal Culture, And Protection, Gordon Christie
Aboriginal Rights, Aboriginal Culture, And Protection, Gordon Christie
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There is a common perception that elements of mainstream society are disrespectful of Aboriginal culture. This article argues that developments in the law offer promise for the protection of Aboriginal "intellectual products," manifestations of Aboriginal culture reflecting their world-view. What Aboriginal peoples would like to see protected, however, are not so much words, pictures, or acts but rather the values, beliefs, and principles that give these meaning. Such, the author argues, are best protected by mechanisms internal to Aboriginal communities. Furthermore, the lack of such mechanisms would not justify the intrusion of Canadian law, but rather raises a call within …
Aboriginal Rights And The Constitution: A Story Within A Story?, Darlene Johnston
Aboriginal Rights And The Constitution: A Story Within A Story?, Darlene Johnston
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Proponents of group rights generally point to section 35 of Canada's Constitution Act 1982 as the prime example of legal rights being vested explicitly in groups. Section 35 declares that 'the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.' In this paper, the author examines the 1990 Supreme Court of Canada decision in R. v. Sparrow, a leading case on section 35, and its application to a fishing rights case involving her own community, the Nayaashiinigmiing, a reserve belonging to the Saugeen Ojibway Nation.