Indigenous, Indian, and Aboriginal Law Commons^™

Bibliography On Indigenous Rights In Canada, 1995-2025, Leslie Haddock, Kent Mcneil

All Papers

No abstract provided.

The Intertemporal Law Doctrine’S Application To The Acquisition Of Colonies In The Americas, Kent Mcneil

All Papers

The intertemporal doctrine provides that international disputes have to be resolved in accordance with the international law that existed at the time the events giving rise to the dispute took place, not at the time the matter is adjudicated.1 It is thought to be impermissible to apply current standards to events that occurred in the past when different legal principles and rules were the norm. This doctrine applies as much to acquisition of colonies as to other international issues.2 So in order to determine whether a European nation acquired sovereignty over an overseas territory, it is necessary to determine and …

Critical Approaches To Jurisdiction: The Struggle For Control Of Indigenous Lands And Resources, Dayna Scott

Articles & Book Chapters

This chapter questions the starting assumptions in thinking through questions of “jurisdiction” in public law, specifically in relation to assertions of inherent Indigenous territorial governing authority. It reviews the common conceptual images of jurisdiction we employ in law schools and offers resources from critical interdisciplinary theory for new conceptions. In highlighting examples of the present exercise of Indigenous territorial jurisdiction, such as the Kunst'aa guu— Kunst'aayah Reconciliation Protocol and the Tsleil-Waututh Sacred Trust Assessment of the Trans Mountain Expansion (TMX) project, the chapter urges public law scholars to adopt an orientation of prefiguration in order to bring into being conceptualizations …

The Power Of ‘Net Zero’: Seductive Dispossession On The Critical Minerals Frontier, Dayna Scott

Articles & Book Chapters

This article draws on insights gained from many years of community-engaged work alongside Neskantaga First Nation, a small remote Anishinaabe community in Treaty No.9, whose Indigenous homelands are being pressured by the global thirst for critical minerals. In line with recent writing on 'green extractivism', I detail how mining's new legitimacy in the boreal peatlands of the far north of Ontario, Canada, gained strength over the past decade from a pitch that associates it with battery metals for electric vehicles, and thus the transition to a 'net-zero' economy. The seduction obscures the social and ecological destruction that mining entails, and …

Book Review: Reclaiming Anishinaabe Law: Kinamaadiwin Inaakonigewin And The Treaty Right To Education By Leo Baskatawang, Karen Drake

Articles & Book Chapters

No abstract provided.

Legal Pluralism In Canada And The Vitality Of Indigenous Law, Kent Mcneil

Conference Papers

State law in Canada consists of the civil law in private law matters in Quebec and the common law in public law matters there and generally in the rest of the country, supplemented by legislation. Legislative authority is divided by the Constitution Act, 1867,1 between the federal government and the ten provinces. In addition, the three territories – Yukon, Northwest Territories, and Nunavut – have legislative authority that has been delegated to them by the Parliament of Canada. This federal division of powers means that there is federal law that is generally uniform throughout Canada (e.g. criminal law) and provincial …

Respect And Submission In Contexts Of Transition: Reviewing Judicial Interpretation From R V Drybones To R V Montour, Joshua Nichols

Osgoode Hall Law Journal

Since the Truth and Reconciliation Commission of Canada's call in 2015 for the adoption and implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), Canada has seen significant legislative developments. Notably, the Declaration of the Rights of Indigenous Peoples Act (DRIPA) in British Columbia, the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA) at the federal level, and subsequent amendments to the Interpretation Act in British Columbia have introduced innovative frameworks for procedural implementation. However, these legislative actions pose unique challenges, particularly in their interpretation by the judiciary.

This paper navigates through …

Social Conflict And Indigenous Consent In Mining: A Primer On Csr, Esg And Social Disclosures To Investors, Shin Imai

All Papers

The transnational corporate structure of mining companies makes it challenging to conduct independent investigations of allegations of social or environmental harm. A parent company can hide behind a multitude of subsidiaries in a multitude of jurisdictions to avoid liability. This article explores one way to bypass these corporate structures through the disclosure requirements of securities legislation. When a parent company fails to disclose social conflict or lack of Indigenous consent at a project, investors may be harmed when the stock price falls. This article describes six empirical studies, supported by extensive macro studies, which show that when social conflict or …

Indigenous Governance And The Charter: What Can Indigenous Constitutionalism Offer?, Karen Drake

All Papers

The question of whether the Charter should apply to Indigenous governance is often presented in terms of a contest between Indigenous self-determination and protections for vulnerable individuals. The two judgments applying the Charter in the Supreme Court of Canada’s decision in Dickson v. Vuntut Gwitchin First Nation exemplify this dichotomy. This approach, however, reflects a false dilemma; it overlooks Indigenous constitutionalism’s ability to resolve the kinds of issues that the Charter aims to resolve, but without sacrificing Indigenous self-determination. To illustrate this point, this article applies one form of Indigenous constitutionalism— Anishinaabe constitutionalism grounded within an Anishinaabe lifeworld—to the fact …

A Home Away From Home For Indigenous Environmental Justice, Deborah Mcgregor

Articles & Book Chapters

No abstract provided.

Indigenous Justice Initiatives: A Summary Current To 2024, Kito Romero, Dara Heravi, Karen Drake, Yanika Mullings-Smith

Commissioned Reports, Studies and Public Policy Documents

This resource is intended to provide a guide to Indigenous justice initiatives across what is now known as Canada, based on publicly available information. The guide includes information on independent Indigenous courts that operate under the authority of an Indigenous people and separately from the Canadian legal system, Indigenous Persons Courts that operate within the Canadian legal system yet apply or uphold Indigenous laws, and restorative justice initiatives available to Indigenous peoples. This resource also includes academic literature on Indigenous laws, Indigenous justice models and practices, evaluations of existing Indigenous justice initiatives, and international comparative works. The focus is on …

How The Settler State Continues To Dispossess: Infrastructural (Dis)Entitlement On The Critical Minerals Frontier, Dayna Nadine Scott

All Papers

The scramble for critical minerals to fuel the energy transition is driving new extractive frontiers across the globe. In Ontario’s far north, settler state authorities and extractive firms are engaged in coordinated tactics to gain ground amidst a growing polarization in positions of Indigenous leadership. There is both a surging resistance to, and a resigned acceptance of, critical minerals mining by First Nations. Drawing on years of community-engaged research, I detail here the contemporary state tactics of infrastructural (dis)entitlement; infrastructural needs are both denied and fulfilled to differential effect. Infrastructural disentitlement is passive; it is not necessarily deliberate, nor is …

Infrastructural (Dis)Entitlement: Tactics Of Dispossession On The Critical Minerals Frontier, Dayna Nadine Scott

Articles & Book Chapters

In Ontario’s far north, settler state authorities and extractive firms are engaged in coordinated tactics to gain ground amid a polarization in the positions of Indigenous leadership. Alongside a surging resistance, we also witness a resigned acceptance of critical minerals mining by some First Nations. Drawing on years of community engaged research, I detail here the contemporary tactics of “infrastructural (dis)entitlement:” in this dynamic, infrastructural needs are both denied and fulfilled to differential effect. Infrastructural disentitlement is passive; it is not necessarily deliberate, nor is it politically or institutionally organized. But infrastructural entitlement is strategic and aggressive: Indigenous prosperity and …

Aboriginal Title, Private Property Interests, And Statutes Of Limitation, Kent Mcneil

All Papers

A major unresolved issue in Canadian law is the status of third-party interests that were allegedly created on Aboriginal title lands in non-treaty areas of Canada. The legal validity of these interests could depend on when and where they were granted by the Crown. Pre-Confederation Crown grants would have been subject to the Royal Proclamation of 1763 and to the limited authority delegated to colonial governments, but not to the division of powers in the Constitution Act, 1867, whereas post-Confederation grants would be subject to the latter. Grants after, but not before, April 17, 1982, would be subject to the …

Tsilhqot’In Nation And Interjurisdictional Immunity: When Are Judicial Decisions Involving Indigenous Claims Retroactive?, Kent Mcneil

Articles & Book Chapters

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 …