Indigenous, Indian, and Aboriginal Law Commons^™

Aboriginal Title In Former French Colonies: Reaching Back Before The Assertion Of French Sovereignty, Ghislain Otis

Dalhousie Law Journal

A substantial part of Canada was colonized by France well before the British arrival in the mid-eighteenth century. This article examines the effect of the assertion of French sovereignty on the Aboriginal title regime recognized under British-Canadian law.

In Part I, the author identifies a trend in the jurisprudence whereby courts assess the Indigenous territorial situation existing at the time of the British assertion of sovereignty, rather than at the time of French sovereignty, for the purpose of applying the exclusive control criterion underlying the recognition of Aboriginal title. The author then demonstrates that this approach creates significant difficulties for …

Bringing Together The United Nations Convention On The Rights Of Persons With Disabilities And The Declaration On The Rights Of Indigenous Peoples In Canada, Constance Macintosh

Dalhousie Law Journal

This article explores the relationship between the United Nations Convention on the Rights of People with Disabilities (CRPD) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) with regards to the situation of Indigenous persons with disabilities living in Canada. In particular, it considers how the obligations and responsibilities identified under the UNDRIP and the CRPD can be interpreted and realized in a manner that is complementary and may amplify the likelihood of the goals of each instrument being realized. An explicit goal is avoiding the exclusions and erasures which arise when single identity politics dominate, which …

Interveners’ Ideas As Influence: Revisiting Ktunaxa Nation, Danielle Mcnabb, Minh Do

Dalhousie Law Journal

With the patriation of the Constitution in 1982, including the addition of the Canadian Charter of Rights and Freedoms and provisions delineating the rights of Indigenous peoples, the Supreme Court of Canada inherited profound political powers. The number of non-governmental actors “intervening” in cases sharply increased. Judicial review produced a democratizing effect because a new “window of opportunity” for marginalized groups to enact social change through the Court was opened. However, several scholars suggest that in practice, the Constitution has led to “very few gains” for Indigenous peoples. To better understand the nature of Indigenous intervener participation, and to assess …

Jurisdiction Devolution: An Interim Transitional Arrangement On The Road To Indigenous Self-Government, Nicole Spadotto

Dalhousie Law Journal

Indigenous self-government is a key component of reconciliation between Canada and Indigenous Nations. The negotiation of self-government agreements and exercise of self-government should occur on Indigenous Peoples’ own terms. Negotiations, however, can be lengthy. There are more immediate power-sharing alternatives. These include recognition legislation, where federal and provincial governments recognize Indigenous Peoples’ inherent right to self-government over certain affairs, thus creating space for Indigenous Nations to exercise their inherent self-government rights. They also include jurisdictional devolution, a fuller form of delegation, which might include law-making and enforcement powers. This latter option is “somewhat unpalatable” because the source of the governance …

A Human Rights And Legal Analysis Of The Understanding Our Roots Report, Naiomi Metallic, Cheryl Simon

Reports & Public Policy Documents

In October 2023, the University released Understanding Our Roots - Nstikuk tan wtapeksikw Report written by the Task Force on Settler Misappropriation of Indigenous Identity. The Report recommends the creation of a Standing Committee who would verify claims to Indigenous identity by students, faculty and staff seeking to benefit from any opportunity at the University that prioritizes access for Indigenous peoples, as well as investigate and recommend sanction in cases of suspected academic fraud whereby an individual assumes an Indigenous identity. The Report does not address or respond to potential legal issues and rights violations arising from its recommendation. To …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

The Borders Of Responsibility, The Democratic Intellect, And Other Elephants In The Room, Liam Mchugh-Russell

Dalhousie Law Journal

What can André Zucca’s photos, taken during the Nazi occupation of Paris, tell us about the law to come or the challenges it will pose to lawyers, legal scholars and legal educators? In short: Zucca’s photos serve not just as a cipher for a past in need of reckoning but as a caution about abiding a present in which crisis is always just out of frame. In the throes of slow-motion apocalypse, what should an intellectual be? And for whom? In 80 years, when someone is rifling through an attic shoebox of our history, will we appear like the subjects …

Etuaptmumk: A Means To Advance Indigenous Economic Development “In A Good Way”, Frankie Young

Dalhousie Law Journal

A reckoning is required on how Eurocentric laws and economic systems are biased toward Western worldviews while not accounting for Indigenous realities, legal orders, or economic perspectives. Most notably, Eurocentric laws have been instrumental in advancing non-Indigenous economic interests to the detriment of Indigenous interests, largely because Indigenous laws have not been respected. The strengthening of certain Eurocentric property and contract laws have limited Indigenous peoples’ legal and economic interests and continues to constrain positive economic outcomes and advancement for Indigenous nations. This article argues that re-centering Indigenous legal traditions is a means to advance Indigenous economic interests. The principle …

Indigenous Self-Government And Criminal Law: The Path Towards Concurrent Jurisdiction In Canada, Michael Michel

Dalhousie Law Journal

This is a special contribution that has not been peer-reviewed.

The past few decades have seen an increase in culturally responsive policies and programs aimed at ameliorating the hardship and disadvantage faced by Indigenous peoples in the Canadian criminal justice system. These policies and programs, however, operate within a criminal justice system that consistently fails Indigenous peoples. What has yet to be tried is a nation-to-nation approach to criminal law jurisdiction where Indigenous peoples have legislative authority to enact and administer their own criminal laws. This paper shows that Indigenous jurisdiction over criminal law is possible within Canada’s constitutional framework. …

Connecting The Dots To Reveal A New Picture: A Report On Indian Act By-Law Enforcement Issues Faced By First Nations In Nova Scotia And Beyond, Naiomi Metallic, Roy Stewart, Ashley Hamp-Gonsalves

Reports & Public Policy Documents

This report originated as a request by the Mi’kmaq-Nova Scotia-Canada Tripartite Forum to research the challenges facing First Nations in Nova Scotia in assuming jurisdictional control through Indian Act by-laws. In undertaking this research, we identified significant uncertainty, misconceptions and confusion around Indian Act by-laws from all parties with a stake in this issue, including federal and provincial government representatives (Indigenous Services, Department of Justice, Public Safety), the police, the public and First Nations representatives. Consequently, we felt it necessary to comprehensively unpack the various issues relating to Indian Act by-laws, from their nature and legal effect, to their development, …

The Continuing Application Of Gladue Principles In The Professional Discipline Of Indigenous Lawyers: A Comment On Law Society Of Ontario V Mccullough, Andrew Martin

Articles, Book Chapters, & Popular Press

While Gladue principles have previously been applied in the professional discipline of Indigenous lawyers, the recent decision of the Law Society Tribunal in Law Society of Ontario v McCullough affirms and applies those precedents in new and powerful ways. In this case comment, I explain the ways in which McCullough is important in its application of Gladue principles and consider what questions remain to be settled in future decisions.

Five Linguistic Methods For Revitalizing Indigenous Laws, Naiomi Walqwan Metallic

Articles, Book Chapters, & Popular Press

Building on the ground-breaking work on the revitalization of Indigenous laws ongoing over the past decade, this article seeks to contribute to our understanding of how Indigenous languages can be used to recover Indigenous laws. It posits that there is not one single linguistic method, but at least five: 1) the ‘Meta-principle’ method; 2) the ‘Grammar as revealing worldview’ method; 3) the ‘Word-part’ method; 4) the ‘Word-clusters’ method; and 5) the ‘Place names’ method. Using the Mìgmaq language to illustrate, the article explains each method and provides examples of how they can be used to inform Indigenous law revitalization. The …

A Conversation Piece About Implementing Inuit Legal Orders Into The Nunatsiavut Government's Inuit Court, Elizabeth Zarpa

LLM Theses

A majority of Inuit reside above the 55th parallel in 51 communities throughout Nunatsiavut, Nunavik, Nunavut and Inuvialuit. This area is Inuit Nunangat and each of these Inuit regions has their own modern treaty. The political and legal history of the evolution of these modern treaties is under-represented within educational institutions. Breathing life into and contextualizing this history is integral when revitalizing Inuit legal orders. There is space to implement Inuit legal orders into the governing structures throughout Inuit Nunangat. This thesis highlights that published and publicly accessible Inuit stories embodies law. Law from the stories is applicable to governance …

Issue Brief: Impact Assessment And Responsible Business Guidance Tools In The Extractive Sector: An Environmental Human Rights Toolbox For Government, Business, Civil Society & Indigenous Groups, Sara L. Seck, Penelope Simmons, Charlotte Connolly

Responsible Business Conduct and Impact Assessment Law

This issue brief provides an overview of the impact assessment and responsible business conduct toolbox for the extractive sector. The toolbox provides guidance on how governments, businesses, civil society, and Indigenous groups may encourage and adopt a human rights approach to impact assessment (IA). It forms part of a broader research project aimed at highlighting the interrelationship between IA laws and Responsible Business Conduct (RBC) tools, funded by the Social Sciences & Humanities Research Council (SSHRC) Knowledge Synthesis Grant: Informing Best Practices in Environmental & Impact Assessments (the “KSG”).

Checking Our Attachment To The Charter And Respecting Indigenous Legal Orders: A Framework For Charter Application To Indigenous Governments, Naiomi Metallic

Articles, Book Chapters, & Popular Press

The Canadian Charter of Rights and Freedom looms large in our national identity. As a constitutional law professor at a Canadian law school, my experience is that most students and lawyers see the Charter as intrinsically tied to fundamental notions of justice and fairness in our country. Because of this, Canadian lawyers and judges, who believe the Charter to be inherently good, may find it hard to understand why Indigenous peoples resist application of the Charter to their own institutions. But Canadian jurists’ attachment to the Charter, if not kept in check, can easily lead to dismissing important objections …

Doing Better For Indigenous Children And Families: Jordan’S Principle Accountability Mechanisms Report, Naiomi Metallic, Hadley Friedland, Shelby Thomas

Reports & Public Policy Documents

In Part 1 of this report, we attempt to summarize the long history that forms the context of the need for independent accountability measures to meaningfully address the discrimination identified by the CHRT in Caring Society and prevent similar practices in the future. Drawing from this context, in Part 2, we set out what we identify as 10 key accountability needs of Indigenous children and families that must be addressed in order to provide effective accountability. Finally, in Part 3, we discuss features of effective accountability mechanisms and propose three interconnected mechanisms that we believe address the accountability …

Aboriginal Rights, Legislative Reconciliation And Constitutionalism, Naiomi Metallic

Articles, Book Chapters, & Popular Press

This paper sketches out the idea of ‘legislative reconciliation’ – governments in Canada using their legislative powers to recognize and protect the inherent rights of Indigenous peoples. Legislative reconciliation is needed because the existing approaches to the implementation of inherent rights—negotiation and constitutional litigation—have been insufficient on their own to bring about a mutually respectful relationship between Indigenous and non-Indigenous peoples. Despite the entrenchment of s 35, state governments have not seen themselves as having a role in its implementation in the same way they do for Charter rights. In particular, Canadian governments have not felt compelled to legislate to …

Study On The Implementation Of Indigenous Rights Based Fisheries, Constance Macintosh

Reports & Public Policy Documents

Thank you once again for inviting me to speak with you on March 22, 2022. It was an honour. I really appreciated the questions that members posed, and the dialogue. As per your request, I am providing my core recommendations for you to consider as you develop your report on implementing the Indigenous rights-based fishery.

How Icebreaking Governance Interacts With Inuit Rights And Livelihoods In Nunavut: A Policy Review, Breanna Bishop, Jade Owen, Lisette Wilson, Tagalik Eccles, Aldo Chircop, Lucia Fanning

Articles, Book Chapters, & Popular Press

Sea ice is a contested space when it comes to navigation in ice-covered regions. For Inuit in Nunavut, Canada, sea ice is an integral platform of coastal connectivity, allowing access to areas of subsistence and cultural value. For vessels transiting Arctic waters, sea ice poses potential risks to vessel, crew, and passenger safety consequently, icebreaking is considered an essential service. Yet, many communities in Nunavut have described icebreaking as having, or potentially having significant negative impacts on community and ecological wellbeing. Several policies regulate and provide guidance to icebreakers operating in ice-covered waters. With anticipated increases to icebreaking demand in …

Judicial Workbook On Bill C-92 — An Act Respecting First Nations, Inuit And Métis Children, Youth And Families, Hadley Friedland, Naiomi Metallic, Koren Lightning-Earle

Articles, Book Chapters, & Popular Press

Objective: Based on the purpose, history, textual wording and relevant interpretative principles, these are the approaches to the provisions of the Act that we believe will best achieve its purpose, which Canada has identified as “to protect and ensure the well-being of Indigenous children, families and communities by promoting culturally sensitive child welfare services, with the goal of putting an end to the overrepresentation of Indigenous children in child and family services systems."

Human Rights At The Ocean-Climate Nexus: Opening Doors For The Participation Of Indigenous Peoples, Children And Youth, And Gender Diversity, Unwana Udo, Tahnee Prior, Sara L. Seck

Articles, Book Chapters, & Popular Press

No abstract provided.

Indigenous Rights And Interests In A Changing Arctic Ocean: Canadian And Russian Experiences And Challenges, Anna Sharapova, Sara L. Seck, Sarah L. Macleod, Olga Koubrak

Articles, Book Chapters, & Popular Press

The Arctic has been home to Indigenous peoples since long before the international legal system of sovereign states came into existence. International law has increasingly recognized the rights of Indigenous peoples, who also have status as Permanent Participants in the Arctic Council. In northern Canada, the majority of those who live in the Arctic are recognized as Indigenous. However, in northern Russia, a much smaller percentage of the population is identified as Indigenous, as legal recognition is only accorded to groups with a small population size. This article will compare Russian and Canadian approaches to recognition of Indigenous peoples and …

Breathing Life Into Our Living Tree And Strengthening Our Constitutional Roots: The Promise Of The United Nations Declaration On The Rights Of Indigenous Peoples Act, Naiomi Metallic

Articles, Book Chapters, & Popular Press

In 2015, the Truth and Reconciliation Commission of Canada (“TRC”) suggested that, despite over 30 years of interpretation in the courts, section 35 of the Constitution Act, 1982, which “recognizes and affirms” the Aboriginal and treaty rights of the Aboriginal peoples of Canada, is not achieving meaningful reconciliation. The TRC defined reconciliation as being about “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.” According to the TRC, the “reconciliation vision that lies behind Section 35 should not be seen as a means to subjugate Aboriginal peoples to an absolute sovereign Crown,” implying this …

Six Examples Applying The Meta-Principle Linguistic Method: Lessons For Indigenous Law Implementation, Naiomi Metallic

Articles, Book Chapters, & Popular Press

Building on "Five Linguistic Methods for Revitalizing Indigenous Laws," this article explains and analyses six examples of implementation of the 'meta-principle' or 'word-bundle' linguistic method for Indigenous law revitalization. The method refers to using a word in an Indigenous language that conveys an overarching, normative principle of the Indigenous group, and is the most utilized form of the five linguistic methods to date. The examples span its use by judges, public governments as well as Indigenous governments, and these actors employ different methods for identifying and interpreting the meta-principles. The variations between them reveal four categories of approaches to identifying, …

Janice Forsyth, Reclaiming Tom Long Boat: Indigenous Self-Determination In Canadian Sport. With A Foreword By Willie Littlechild., Gwooyim Gyat Hawaaw

Dalhousie Law Journal

Established in 1951, the Tom Longboat Awards seek to “recognize Aboriginal athletes for their outstanding contributions to sport in Canada.” In her meticulous work of cultural history, the Cree kinesiologist Janice Forsyth places this official discourse in settler-colonial context. “The history of sport and physical activity in Canada,” she clarifies for sports scholars and administrators, “is not a history of empowerment or inclusion, or even of opportunity, accommodation, or amalgamation. Rather, it is a history of containment, control, and elimination.” Forsyth’s incisive analysis consequently goes well beyond the fields of sociology and sport history. On my reading, her work makes …

Fiscal Decolonization-Indigenous Fiscal Autonomy And Tax Jurisdiction, Riad Kherallah

LLM Theses

This thesis focuses on the relationship between Indigenous fiscal autonomy and self-determination. Indigenous nations’ ability to achieve self-determination is dependent upon their ability to autonomously finance self-government. Unfortunately, Canada’s colonial policies have weakened Indigenous economies and rendered them dependent upon the Crown. Due to Indigenous nations’ lack of fiscal autonomy, Crown policies designed to promote Indigenous self-government have proven inadequate. This thesis argues for using the United Nations Declaration on the Rights of Indigenous Peoples as a blueprint for developing more equitable economic relations. While there are various elements to Crown-Indigenous economic relations, this thesis focuses on the distribution of …

A Review Of Harold Johnson, Peace And Good Order: The Case For Indigenous Justice In Canada, Haneen Al-Noman

Dalhousie Law Journal

Haneen Al Noman: A Review of Harold Johnson, Peace and Good Order: The Case for Indigenous Justice in Canada (Toronto: McClelland & Stewart, 2019).

Cash Back: A Yellowhead Institute Red Paper, Shiri Pasternak, Naiomi Metallic, Yumi Numata, Anita Sekharan, Jasmyn Galley, Samuel Wong

Reports & Public Policy Documents

Picking up from Land Back, the first Red Paper by Yellowhead about the project of land reclamation, Cash Back looks at how the dispossession of Indigenous lands created a dependency on the state due to the loss of economic livelihood. Cash Back is about restitution from the perspective of stolen wealth.

From Canada’s perspective, the value of Indigenous lands rests on what can be extracted and commodified. The economy has been built on the transformation of Indigenous lands and waterways into corporate profit and national power. In place of their riches in territory, Canada set up for First Nations a …

Wolastoqiyik And Mi’Kmaq Grandmothers - Land/Water Defenders Sharing And Learning Circle: Generating Knowledge For Action, Sherry Pictou, Janet Conway, Angela Day

Reports & Public Policy Documents

This report is a summary of the Grandmothers/Defenders’ stories and are interwoven with corresponding news articles, press releases, and other public documents. This is followed by an overview of some of the critical common issues and importantly, strategies for moving forward proposed by the Grandmothers/Defenders.

The Grandmother’s Report is a collection of stories told by Wolastoqiyik Grandmother/Defenders against the Sisson Mine in New Brunswick and Mi’kmaq Grandmothers against the Alton Gas project in Nova Scotia at the event, Indigenous Grandmothers Sharing and Learning Circle: Generating Knowledge for Action, held at the Tatamagouche Centre in Nova Scotia, January 26 to 27, …

The Quotidian And Constitutive Practice Of Police Brutality Against Indigenous People, Elaine Craig

Articles, Book Chapters, & Popular Press

In Settler Colonialism, Policing and Racial Terror: The Police Shooting of Loreal Tsingine Sherene Razack gives voice to the settler colonial violence perpetrated against Loreal Tsingine, a 27-year-old Navajo women who was shot and killed by Austin Shipley. Shipley, a white male police officer, claimed he was trying to apprehend her for alleged shoplifting. The article, which is brilliantly and compellingly written (as is typical of all of Professor Razack’s work) makes several claims. Most centrally, however, she asserts that racial terror – a violence done at both structural and individual levels – is at the very heart of the …