Law Commons^™

The Onus Of Proof Of Aboriginal Title, Kent Mcneil

Osgoode Hall Law Journal

In the Delgamuukw decision, the Supreme Court of Canada clearly placed the onus on the Aboriginal nations to prove their title by showing occupation of lands at the time the Crown asserted sovereignty. In this article, it is argued that the common law could assist them in this respect. They should be able to rely on present or past possession to raise a presumption of Aboriginal title, and so shift the burden onto the Crown to prove its own title. Moreover, Aboriginal nations may be more successful if they bring an action for trespass or for recovery of possession of …

Sovereignty's Alchemy: An Analysis Of Delgamuukw V. British Columbia, John Borrows

Osgoode Hall Law Journal

In Delgamuukw v. British Columbia, the Supreme Court of Canada issued its long-awaited judgment on the status of Aboriginal title under section 35(1) of the Constitution Act, 1982. The decision was regarded as highly significant because it seemed to fundamentally alter the law of Aboriginal rights. This article suggests that while the case has somewhat positively changed the law to protect Aboriginal title, it has also simultaneously sustained a legal framework that undermines Aboriginal land rights. In particular, the decision's unreflective acceptance of Crown sovereignty places Aboriginal title in a subordinate position relative to other legal rights. This article examines …

Of Provinces And S.35 Rights, Kerry Wilkins

Dalhousie Law Journal

It is now well established that federal law and regulatory activity may interfere with the exercise of aboriginal peoples' existing treaty and aboriginal rights, despite s. 35(1) of the Constitution Act, 1982, whenever the federal government can justify the interference. It is not yet clear, though, what power, if any, Canada's provinces have to regulate, even in justified ways, such rights and their exercise. This article argues that the provinces, as a general rule, have no such authority. Except in certain very specific and isolated circumstances, they have no power, even apart from s. 35, to regulate the exercise of …

Aboriginal Rights, Aboriginal Culture, And Protection, Gordon Christie

Osgoode Hall Law Journal

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 …

A Country Within A Country: Redrawing Borders On The Post-Colonial Sovereign State, Suzan Dionne Balz

Michigan Journal of Race and Law

This Essay seeks to identify the conflict that exists between the demands for self-governance by Canada's First Nations and the interests of the Canadian state. The author elucidates this conflict by identifying two major differences between the perspectives of Canada's First Nations' demands for self-governance and the interests of the Canadian state: the privileging of the collective versus the privileging of the individual, and the two very different notions of "territory." The author concludes that the doctrine of sovereign statehood as developed out of European Nationalism stands as an obstacle to the self-determination of non-western peoples such as the First …

What's Law Got To Do With It?: The Protection Of Aboriginal Title In Canada, Patrick Macklem

Osgoode Hall Law Journal

This essay presents and contrasts two narratives on the past and future of the law of Aboriginal title. The first narrative, drawn from the Final Report of the Royal Commission on Aboriginal Peoples, grounds the law of Aboriginal title in inter-societal norms that enabled the mutual coexistence of colonists and settlers in North America. It locates Aboriginal territorial dispossession in colonial policies and practices that failed to conform to the spirit of mutual coexistence, and calls on governments to provide Aboriginal people with lands and resources necessary for self-sufficiency. The counter-narrative describes the law of Aboriginal title as a relatively …

Columbia River Salmon: Are Any Of The Esa Tools Adequate For The Job?, John M. Volkman

Biodiversity Protection: Implementation and Reform of the Endangered Species Act (Summer Conference, June 9-12)

32 pages.

Contains footnotes.

The Organic Constitution: Aboriginal Peoples And The Evolution Of Canada, Brian Slattery

Osgoode Hall Law Journal

Despite recent advances in the law of aboriginal rights, most Canadian lawyers still tacitly view the Constitution as the outgrowth of European legal traditions, transplanted into North America. This article identifies the main features of this model of the Constitution and proposes a more appropriate model to replace it, one that recognizes the Constitution's deep roots in Canadian history and traditions, and acknowledges the distinctive contributions of Aboriginal peoples and their long-standing relations with the Crown.

Aboriginal Governments And The Canadian Charter Of Rights And Freedoms, Kent Mcneil

Osgoode Hall Law Journal

Starting with the premise that the Aboriginal peoples of Canada have an inherent right of self-government which is constitutionally protected, this article analyzes the issue of whether Aboriginal governments exercising that right are subject to the Canadian Charter of Rights and Freedoms. This issue is examined from a legal perspective based on textual analysis and common law principles. It is concluded that, as a matter of Canadian constitutional law, with the exception of the section 28 gender equality provision, the Charter does not apply to Aboriginal governments. This avoids imposition of the Charter generally on these governments by judicial decree, …

Relations Of Force And Relations Of Justice: The Emergence Of Normative Community Between Colonists And Aboriginal Peoples, Jeremy Webber

Osgoode Hall Law Journal

This paper argues that Aboriginal rights are best understood as the product of cross-cultural interaction-not, as is usually supposed, the result of some antecedent body of law (English, international, or Aboriginal). Aboriginal rights are therefore intercommunal in origin. The paper does describe the process by which this body of law emerged, but its primary vocation is theoretical, concerned with the following questions: How can a normative community emerge in the presence of profound cultural divisions? How can relations of justice emerge in a context dominated by power and coercion? How does moral reasoning draw upon the factual relations of the …

A Meeting Of Opposites—Is Sustainable Use Of The Columbia River Possible?, John M. Volkman

Sustainable Use of the West's Water (Summer Conference, June 12-14)

47 pages.

Contains footnotes.

A Note About In The Rapids, Wendy Whitecloud

Dalhousie Law Journal

In The Rapids presents the views of the authors regarding First Nations people in Canada and the issues confronting them as individuals, within their nations, and within their communities. Mary Ellen Turpel and Ovide Mercredi are both First Nations Individuals. They share their own points of view and provide information with respect to these issues in their book. Throughout the book the authors share information by canvassing issues like the significance of Treaties to First Nations people; the provisions of the Indian Act and its effects on First Nations people; disputes over lands and resources; the social consequences of the …

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."

Negotiated Sovereignty: Intergovernmental Agreements With American Indian Tribes As Models For Expanding First Nations’ Self-Government, David H. Getches

Publications

Constitutional issues related to First Nations sovereignty have dominated Aboriginal affairs in Canada for a considerable period. The constitutional entrenchment of Aboriginal self-government has, however, received a setback with the recent failure of the Charlottetown Accord in October of 1992. Nonetheless, day-to-day issues must be accommodated, even while this more fundamental constitutional question remains unresolved. This paper illustrates the American experience with negotiated intergovernmental agreements between tribes and individual states. These agreements have, for example, resolved jurisdictional disputes over taxation, solid waste disposal, and law enforcement between state governments and tribal authorities. The author suggests that these intergovernmental agreements in …

Child Welfare Law, "Best Interests Of The Child" Ideology, And First Nations, Marlee Kline

Osgoode Hall Law Journal

Liberalism has structured legal discourse such that racism is most often unintended and rarely explicit. To understand how and why law has an oppressive and discriminatory impact on First Nations and other racialized groups in Canadian society, one must look at some of its more subtle processes and, in particular, its ideological form. The goal of this article is to provide insight into the origins and operation of "best interests of the child" ideology and to illustrate how it structures and constrains judicial decision making in the context of First Nations child welfare. Best interests ideology serves to portray the …

A Genealogy Of Law: Inherent Sovereignty And First Nations Self-Government, John J. Borrows

Osgoode Hall Law Journal

First Nations self-government in Canada has often been regarded as extinguished or delegated from the British Crown or the Canadian federal government. First Nations self-government among the Chippewas of the Nawash Band in southern Ontario has not been extinguished or delegated, but continues to exist as an inherent exercise of community sovereignty. The idea of existing Aboriginal self-government in modern-day Ontario contrasts with many prevailing notions about Native society in Canada today. The inherent and unextinguished nature of self-government among the Nawash Band is demonstrated by examining the events of the author's ancestors and community in their interactions with foreign …

Improving Access To Legal Education For Native People In Canada: Dalhousie Law School's I.B.M. Program In Context, Hugh Macaulay

Dalhousie Law Journal

This paper is about access to legal education for Native peoples in Canada. It is important at the very outset of this undertaking to explain my interest in this issue and to describe the perspective from which I write. At the beginning of the 1989-90 academic year I returned to Halifax to discover that Dalhousie had implemented a program to increase access for Blacks and Micmacs to legal education. Motivated by my support for this initiative, I applied to be a tutor in the program and was fortunate enough to be selected.

Book Review, Charles F. Wilkinson

Publications

No abstract provided.

The Arctic National Wildlife Refuge: A Case Study In Reconciling Nationally Significant Wildlife Protection, Wilderness And Mineral Potential, Guy R. Martin

The Public Lands During the Remainder of the 20th Century: Planning, Law, and Policy in the Federal Land Agencies (Summer Conference, June 8-10)

28 pages.

Contains 10-page chronology, 1867-1987.

Wolf Recovery In The Northern Rockies: Where Biology Meets Politics [Outline], Hank Fischer

The Public Lands During the Remainder of the 20th Century: Planning, Law, and Policy in the Federal Land Agencies (Summer Conference, June 8-10)

7 pages.

Contains references.

The Law Of The Pacific Salmon Fishery: Conservation And Allocation Of A Transboundary Common Property Resource, Charles F. Wilkinson, Daniel Keith Conner

Publications

No abstract provided.

Indian And Inuit Family Law And The Canadian Legal System, Bradford W. Morse

American Indian Law Review

No abstract provided.

Message Of The President Of The United States Communicating, In Compliance With A Resolution Of The Senate Of December 8, 1869, Information Relating To The Presence Of The Honorable William Mcdougall At Pembina, In Dakota Territory, And The Opposition By The Inhabitants Of Selkirk Settlement To His Assumption Of The Office Of Governor Of The Northwest Territory.

American Indian and Alaskan Native Documents in the Congressional Serial Set: 1817-1899

Affairs on the Red River of the North. 3 Feb. SED 33, 41-2, v1, 52p. [1405] Transfer of the Northwest Territory from the Hudson's Bay Company to the Dominion of Canada; Canadian governor driven into the U.S. by inhabitants of that territory, including Indian forces and halfbreeds.

Management Of Indians In British America. Report On The Management Of The Indians In British North America By The British Government.

American Indian and Alaskan Native Documents in the Congressional Serial Set: 1817-1899

Report on Management of Indians in British America. 27 Jan. HMD 35, 41-2, v3, 38p. [1433] To discover why there have been no major Indian wars there, and why civilization is proceeding well; the "Six Nations" of Mohawks, Senecas, Cayugas, Oneidas, Onondagas, and Tuscaroras; populations increasing.