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Articles 151 - 172 of 172
Full-Text Articles in Indigenous, Indian, and Aboriginal Law
Mohegan Indians V. Connecticut (1705-1773) And The Legal Status Of Aboriginal Customary Laws And Government In British North America, Mark D. Walters
Mohegan Indians V. Connecticut (1705-1773) And The Legal Status Of Aboriginal Customary Laws And Government In British North America, Mark D. Walters
Osgoode Hall Law Journal
This article examines the eighteenth century case of Mohegan Indians v. Connecticut in order to determine its significance for arguments about the legal status of Aboriginal customary law and government in British North America. The article concludes that the Mohegan case confirms that in certain circumstances native nations on reserved lands in British colonies were subject, not to colonial jurisdictions established for settlers, but to their own traditional customs and institutions. It also concludes that the case is less clear than some recent commentators have suggested about whether British law recognized such nations as having rights of sovereignty.
Canada's Fiduciary Obligation To Aboriginal Peoples In The Context Of Accession To Sovereignty By Quebec, Volume 2: Domestic Dimensions, Renée Dupuis, Kent Mcneil
Canada's Fiduciary Obligation To Aboriginal Peoples In The Context Of Accession To Sovereignty By Quebec, Volume 2: Domestic Dimensions, Renée Dupuis, Kent Mcneil
Books
The Royal Commission on Aboriginal Peoples was established on 26 August 1991 by Order in Council P.C. 1991-1597 with the following mandate: "The Commission of Inquiry should investigate the evolution of the relationship among aboriginal peoples (Indian, Inuit and Métis), the Canadian government, and Canadian society as a whole. It should propose specific solutions, rooted in domestic and international experience, to the problems which have plagued those relationships and which confront aboriginal peoples today. The Commission should examine all issues which it deems to be relevant to any or all of the aboriginal peoples of Canada..." (P.C. 1991-1597)
Regional Agreements For Indigenous Lands And Cultures In Canada, Benjamin J. Richardson, D. Craig, Ben Boer
Regional Agreements For Indigenous Lands And Cultures In Canada, Benjamin J. Richardson, D. Craig, Ben Boer
Commissioned Reports, Studies and Public Policy Documents
No abstract provided.
Provincial Fiduciary Obligations To First Nations: The Nexus Between Governmental Power And Responsibility, Leonard I. Rotman
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."
Shawanaga Bound: The Ontario Court Of Appeal Decides Hopton V Pamajewon, Janet Walker
Shawanaga Bound: The Ontario Court Of Appeal Decides Hopton V Pamajewon, Janet Walker
Articles & Book Chapters
No abstract provided.
Envisaging Constitutional Space For Aboriginal Governments, Kent Mcneil
Envisaging Constitutional Space For Aboriginal Governments, Kent Mcneil
Articles & Book Chapters
When the Supreme Court decided Sparrow, it could have interpreted s. 35 of the Constitution to give Aboriginal peoples absolute power over Aboriginal and treaty rights, a power which neither Parliament nor the Provinces could trump. Instead, the Court interpreted s. 35 to mean that Parliament could still infringe Aboriginal rights if the infringement could be justified by a strict test. Professor McNeil suggests that this interpretation does not originate in the constitutional text so much as in the British constitutional concepts of Parliamentary sovereignty and the rule of law. He argues that the Court maintained Parliament's power to regulate …
A Genealogy Of Law: Inherent Sovereignty And First Nations Self-Government, John J. Borrows
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 …
Child Welfare Law, "Best Interests Of The Child" Ideology, And First Nations, Marlee Kline
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 …
The Legal Basis Of Aboriginal Title, Brian Slattery
The Legal Basis Of Aboriginal Title, Brian Slattery
Articles & Book Chapters
This paper considers a range of differing approaches to the question of Aboriginal land rights in the light of the judgment of the B.C. Supreme Court in the Delgamuukw case.
First Nations And The Constitution: A Question Of Trust, Brian Slattery
First Nations And The Constitution: A Question Of Trust, Brian Slattery
Articles & Book Chapters
This article argues that the fiduciary relationship between Aboriginal peoples and the Crown is a special instance of a general doctrine of collective trust that animates the Canadian Constitution as a whole. This doctrine sheds light on the federal structure of Canada the unique status of Quebec, and the position of First Nations as a self-governing polities within Confederation. The article explores the origins and character of the constitutional trust, and considers its application to issues surrounding the inherent Aboriginal right ofself-government and Aboriginal land rights.
Aboriginal Sovereignty And Imperial Claims, Brian Slattery
Aboriginal Sovereignty And Imperial Claims, Brian Slattery
Osgoode Hall Law Journal
It is commonly assumed that Indigenous American nations had neither sovereignty in international law nor title to their territories when Europeans first arrived; North America was legally vacant and European powers could gain title to it simply by discovery, symbolic acts, occupation, or treaties among themselves. It follows, on this view, that current Indigenous claims to internal sovereignty or a "third order of government" have no historical basis. This paper argues that this viewpoint is misguided and cannot be justified either by reference to positive international law or basic principles of justice. The author's view is that Indigenous American nations …
Aboriginal Rights: The Dispossession Of The Métis, L. A. H. Chartrand
Aboriginal Rights: The Dispossession Of The Métis, L. A. H. Chartrand
Osgoode Hall Law Journal
Section 31 of the Manitoba Act 1870 provided for a land settlement scheme for the benefit of the families of the Métis residents, towards the extinguishment of the Indian title. There are now no Métis reserves in Manitoba; section 31 was implemented in a way which permitted the quick dispossession of the Métis in the nineteenth century. The writer argues that the mode of implementing section 31 was a breach of constitutional obligation. Reference is made to the subsequent history of the western Métis and comments are offered regarding the current significance of the Métis dispossession.
Aboriginal Language Rights, Brian Slattery
Aboriginal Language Rights, Brian Slattery
Articles & Book Chapters
This paper considers several possible foundations for Indigenous language rights in the Constitution of Canada and argues for an approach that grounds these rights in inter-societal common law.
The Demise And Rise Of The Classical Paradigm In Canadian Federalism: Promoting Autonomy For The Provinces And The First Nations, Bruce Ryder
Articles & Book Chapters
The author explores the possibility of employing Canadian consitutional doctrine to develop a more flexible approach that would allow for greater provincial autonomy and First Nation self-government within the existing scheme of ss 91 and 92 jurisprudence. Canadian constitutional doctrine is first interpreted through the competing models of the classical and modem paradigms. The former emphasizes a sharp division of powers and has traditionally been used, the author argues, to invalidate legislation seen to interfere with the market economy. The modem paradigm, on the other hand, recognizes competing jurisdictions and has been used to uphold legislation focusing on morals. The …
Possession And Title To Land In English Law, Kent Mcneil
Possession And Title To Land In English Law, Kent Mcneil
Articles & Book Chapters
The common law relating to land relies heavily on possession as a source of title and proprietary rights. Even a trespasser who wrongfully takes possession of land acquires a title to it that is good against anyone who cannot prove he or she has a better title. This is due in part to the rule that title is presumed from possession, but in addition it relies upon the incapacity of an outside claimant to rely on a jus tertii. In other words, the claimant is barred from pointing to a third party’s title under which he or she does not …
The Crown’S Title To Lands In England, Kent Mcneil
The Crown’S Title To Lands In England, Kent Mcneil
Articles & Book Chapters
A fundamental principle of the common law, stemming from the doctrine of tenures, provides that the Crown has the underlying or radical title to all land within its common law dominions. Private persons and corporations do not “own” land; instead, they hold estates in land that are presumed to be derived from Crown grants. This common law edifice is built on the legal fiction that the Crown once possessed and therefore owned all the lands in England. As this is known to be a fiction, all it does is give the Crown its underlying title and thus a right to …
Understanding Aboriginal Rights, Brian Slattery
Understanding Aboriginal Rights, Brian Slattery
Articles & Book Chapters
The entrenchment of aboriginal rights in the Constitution Act, 1982 and the importance of aboriginal claims now reaching the courts highlight the need to understand these long-ignored rights. This article sets out a general theory of the subject, drawing on the leading cases and the complex history of relations between native peoples and the Crown. Aboriginal rights are based on a set of basic common law principles that operate uniformly across Canada, except where modified by treaty or legislation. Under those principles, native peoples presumptively hold full rights to lands in their possession, and retain their accustomed laws andpolitical institutions, …
Ancestral Lands, Alien Laws: Judicial Perspectives On Aboriginal Title, Brian Slattery
Ancestral Lands, Alien Laws: Judicial Perspectives On Aboriginal Title, Brian Slattery
Books
This monograph examines critically the various ways in which Commonwealth and American judges have dealt with the issue of the land rights of Aboriginal peoples in the past. It devotes particular attention to the doctrine of Aboriginal title developed by Chief Justice Marshall of the United States Supreme Court. The nature and legal basis of that doctrine are reviewed in detail, and the relevance of the doctrine to Canadian and Commonwealth jurisdictions is explored.
The Constitutional Guarantee Of Aboriginal And Treaty Rights, Brian Slattery
The Constitutional Guarantee Of Aboriginal And Treaty Rights, Brian Slattery
Articles & Book Chapters
This paper proposes a workable framework for the application of the constitutional provisions dealing with Aboriginal and treaty rights in Canada.
Native Claims In Rupert's Land And The North-Western Territory: Canada's Constitutional Obligations, Kent Mcneil
Native Claims In Rupert's Land And The North-Western Territory: Canada's Constitutional Obligations, Kent Mcneil
Commissioned Reports, Studies and Public Policy Documents
The final step in the evolution of Canada from colony to sovereign and independent state was taken on April 17, 1982, with the signing of the Constitution Act, 1982. I While the consequences for Canadian society generally of patriation of the Constitution and inclusion of a Charter of Rights and Freedoms are not to be underestimated, the effect on the aboriginal peoples of Canada could be much greater. This is because these peoples are the original inhabitants of this country and as such they have special rights in Canadian law. These rights originate in the common law doctrine of aboriginal …
Evaluation Of The Native Courtworker And Counselling Association Of British Columbia: A Synopsis, Frederick H. Zemans
Evaluation Of The Native Courtworker And Counselling Association Of British Columbia: A Synopsis, Frederick H. Zemans
Books
In April 1973, the Native Courtworkers and Counselling Association of British Columbia held t he first evaluation since its founding in October 1973. The two major objectives of the evaluation were (a) t o provide the Association with a detailed overview of the work of the courtworkers, the head office and the Board of Directors; (b) and to provide information for use in future planning of the Association. The information provided by the evaluation team included such things as statistics concerning the activities of the Association and first hand accounts of the functions of the Association in the field and …
Evaluation Of The Native Courtworker And Counselling Association Of British Columbia, Frederick H. Zemans, Ronni Richards
Evaluation Of The Native Courtworker And Counselling Association Of British Columbia, Frederick H. Zemans, Ronni Richards
Books
In April, 1975 the Native Legal Task Force was approached by the Board of Directors of the Native Courtworkers and Counselling Association of British Columbia for assistance in performing their first program evaluation since the founding of the association in October, 1973. After consultation, · it was agreed that such an evaluation would be undertaken by a Task Force staff researcher in conjunction with a legal consultant having knowledge of para-legals and experience in administration and evaluation.