Indigenous, Indian, and Aboriginal Law Commons^™

Synthesis Report: Implementing A Regional, Indigenous-Led And Sustainability-Informed Impact Assessment In Ontario’S Ring Of Fire, Dayna N. Scott, Cole Atlin, Estair Van Wagner, Peter Siebenmorgan, Robert B. Gibson

Articles & Book Chapters

Background: the issue

Development in Ontario’s “Ring of Fire”, a significant deposit of minerals, including chromite, located in the boreal region of the far north of the province, has been on the table for many years. Despite the fact that successive governments have hyped the value of the resources, the remoteness and lack of infrastructure, as well as the inability of governments to obtain the buy-in of all of the First Nations communities in the region, has left the Ring of Fire undeveloped.

Thus, Ontario’s far north remains one of the world’s largest, most intact ecological systems. The boreal forest …

Extraction Contracting: The Struggle For Control Of Indigenous Lands, Dayna N. Scott

Articles & Book Chapters

No abstract provided.

Consultation, Cooperation And Consent In The Commons' Court: "Manner And Form" After Mikisew Cree Ii, Craig M. Scott

Articles & Book Chapters

In Mikisew Cree II, a large majority of the Supreme Court of Canada took the view that the Constitution Act, 1982, section 35 duty to consult and accommodate cannot constrain the legislative process, and that the legislative process includes bill preparation activities carried out by Ministers and by officials in the executive. My limited purpose in this article is to show how the question of participatory constraints on legislative processes that affect Indigenous legal interests has more been deflected than resolved by this ruling -- at the same time as this deflection has productive potential by virtue of how it …

The Contrasting Fates Of French Canadian And Indigenous Constitutionalism: British North America, 1760-1867, Philip Girard

Articles & Book Chapters

In the century after the fall of New France, both Indigenous peoples of Canada and French Canadians could be described as colonised peoples. Yet the treatment of each group's pre-existing laws and the ways in which each found its constitutional demands recognised (or not) varied considerably. In spite of significant rebellions in 1837-1838, French Canadians went on to achieve a high degree of autonomy within the province of Quebec in the British North America Act 1867. Meanwhile, intercultural legal arrangements with Indigenous peoples, such as the Covenant Chain, which could be termed constitutional, were gradually undermined, ignored and forgotten. This …

Covid-19 And First Nations’ Responses, Aimée Craft, Deborah Mcgregor, Jeffery G. Hewitt

Articles & Book Chapters

This chapter considers the federal government’s fettering of jurisdiction through inaction in the areas of clean water and housing. We consider a small sample of First Nations’ responses, taken on the basis of their assertions of jurisdiction and responses to the particular needs and circumstances of their communities. We conclude that First Nations are best positioned to make policy and law in response to COVID-19, and that the federal government can and must work with First Nations communities on resourcing their plans for wellness and emergency preparedness in relation to the pandemic, in accordance with a sui generis application of …

Truth Be Told: Redefining Relationships Through Indigenous Research, Deborah Mcgregor

Articles & Book Chapters

The recently released report of the Truth and Reconciliation Commission of Canada (TRC) contains recommendations which seek to deconstruct the highly colonial relationship between Indigenous peoples and the Canadian state. This chapter explores how the TRC’s findings might be applied in transforming the theory and practice of academic research as part of renewing and re-defining relationships between Indigenous peoples and broader Canadian society. I will address the fundamental bias that exists in the historical and contemporary scholarship that either explicitly or implicitly frames Indigenous peoples as “problems” to be solved.

Supreme Court Of Canada Cases Strengthen Argument For Municipal Obligation To Discharge Duty To Consult: Time To Put Neskonlith To Rest, Angela D’Elia Decembrini, Shin Imai

Articles & Book Chapters

Can municipalities infringe Aboriginal or treaty rights without consulting the affected Indigenous group? In Neskonlith Indian Band v. Salmon Arm (City), the British Columbia Court of Appeal answered this question in the affirmative, finding that the city of Salmon Arm did not need to consult the Neskonlith First Nation about impacts from the construction of a shopping mall. In what was technically obiter dicta, the Court permitted the municipal project to proceed, and told the First Nation that its only recourse was to complain to the provincial government in a separate proceeding.

If There Can Only Be ‘One Law’, It Must Be Treaty Law. Learning From Kanawayandan D’Aaki, Dayna Nadine Scott, Andrée Boisselle

Articles & Book Chapters

The paper stems from a research collaboration with the Anishini community of Kitchenuhmaykoosib Inninuwug (KI), known as the people of Big Trout Lake in the far north of Ontario. In the face of renewed threats of encroachment by extractive industries onto their homelands, our research team visited the community on the invitation of leadership in 2017. The community was engaged in strategic planning and reflection on the work that they have done in recent years to articulate and record their own laws for the territory, and to gain recognition for those laws from settler governments. Between 2008 and 2018, …

The History And Promise Of Shared Space In A Section 35 World, Signa A. Daum Shanks

Articles & Book Chapters

When non-Indigenous people made their way to North America, both conflicting and complementary social norms existed between explorers and the land’s original inhabitants. Capable of agreeing with, often challenging, and regularly borrowing each other’s ideas, people of early post-contact times demonstrated how they could have different values and processes but could still cooperate. So while colonialism certainly stifled, if not terminated, some Indigenous processes, local concepts still often prevailed and governed all those who inhabited a space—including the non-Indigenous. Canada’s post-contact past is as much about the adherence to Indigenous jurisdiction as it is about an external force’s interpretation of …

Book Review: John Borrows, Law's Indigenous Ethics, Karen Drake

Articles & Book Chapters

No abstract provided.

The Louisiana Purchase: Indian And American Sovereignty In The Missouri Watershed, Kent Mcneil

Articles & Book Chapters

Like a historical mantra repeated time and again, it is asserted that the Louisiana Purchase doubled the size of the United States. As this assertion takes for granted that the Purchase included the entire Missouri watershed, it rests on the assumption that France had a valid title thereto because, as a matter of common sense and international law, France could only convey title to territory that it actually owned. But what basis is there for the assumption that France had sovereign title to the vast territory drained by the Missouri River that stretches from the Mississippi River to the Rocky …

Re-Peopling In A Settler-Colonial Context: The Intersection Of Indigenous Laws Of Adoption With Canadian Immigration Law, Amar Bhatia

Articles & Book Chapters

This article examines the intersection of Indigenous and Canadian ways of making and maintaining relations through the specific examples of adoption and immigration. Canada and all Indigenous societies assert the authority to re-people themselves. Unlike Canada, Indigenous peoples must do so in the face of ongoing settler colonialism. I argue that Indigenous peoples and nations have authority to regulate these matters under Indigenous laws and systems of treaty relations. However, Canadian laws and policies have served to obscure this authority. I argue that non-metaphorical decolonization requires the continued exercise of Indigenous authority over “peopling” powers. These powers necessarily include authority …

Indigenous Environmental Justice, Knowledge And Law, Deborah Mcgregor

Articles & Book Chapters

This article is based on a paper prepared for the convening of Over the Line: A Conversation about Race, Place, and the Environment, coordinated by In-grid Waldron; it was thus originally delivered in the context of a community of scholars interested and engaged in environmental justice (EJ) as well as anti-racism scholarship and activism. Conversations at the symposium were rich and deep, introducing novel ideas and generating a synergistic energy among those present. While this article builds upon the knowledge, experiences, and perspectives shared at the event, it also aims to introduce a distinct conception of Indigenous environmental justice (IEJ) …

The Source, Nature, And Content Of The Crown’S Underlying Title To Aboriginal Title Lands, Kent Mcneil

Articles & Book Chapters

The highest courts in Australia, Canada, and New Zealand have consistently held that the Crown has the underlying title to Aboriginal title lands. The United States Supreme Court has likewise concluded that either the federal or state governments have the underlying title to Indian lands. However, the source, nature, and content of this title remain obscure. This article will examine the relevant case law and contend that, in Canada, the Crown’s underlying title is a purely proprietary interest that does not amount to a current beneficial interest and does not entail any jurisdictional authority. It is sourced in the doctrine …

Chapter 8: Indigenous Belonging: Membership And Identity In The Undrip: Articles 9, 33, 35, And 36, Shin Imai, Kathryn Gunn

Articles & Book Chapters

The recognition of Indigenous peoples' right to determine their own membership is crucial for their ability to meaningfully exercise their right to self-determination. The Declaration addresses rights of membership directly in Article 9 (right to belong), 33 (right to determine membership), 35 (right to determine responsibilities of members), and 36 (right to maintain relations across borders). Together, these provisions reinforce the right of Indigenous peoples to define themselves, both in terms of membership and geographic scope.

Towards An Anishinabe Research Paradigm: Theory And Practice., Deborah Mcgregor

Articles & Book Chapters

As this volume attests to, in recent years there has been a remarkable emergence of Indigenous research scholarship both internationally and within Canada. Indigenous theory, paradigms, and methods inform research practices which take on many forms, reflecting the diversity of Indigenous nations. Many scholars, Indigenous and non-Indigenous alike, have sought to decolonize past and current research approaches and advance Indigenous approaches and methods of research (Louis, 2007). Some more recent efforts have focused specifically on the revitalization of Indigenous research traditions (Archibald, 2008; Kovach, 2003; Wilson, 2008). Anishinaabe research is a form of reclaiming our stories and knowledge through personal …

Epilogue: Indigenous Research: Future Directions, Deborah Mcgregor

Articles & Book Chapters

Indigenous research is often viewed as a novel and recently conceived research paradigm with the aim of explicitly and actively supporting the self-determination goals of Indigenous peoples (National Aboriginal Health Organization [NAHO], 2005). While it may be “new” to academia, engaging in Indigenous inquiry, along with its resultant knowledge production and mobilization, is actually far from new. Indigenous societies, like any autonomous and sovereign nations, required regularly updated knowledge to meet existing and emerging challenges. Indigenous peoples have thus been seeking knowledge to support their existence as peoples and nations for millennia (Absolon & Willet, 2004; Cardinal, 2001; Castellano, 2000; …

Finding A Path To Reconciliation: Mandatory Indigenous Law, Anishinaabe Pedagogy, And Academic Freedom, Karen Drake

Articles & Book Chapters

The Truth and Reconciliation Commission has called on law schools in Canada to make Indigenous law a mandatory component of legal education. In its final report, the Commission provides the outline of a rationale in support of this call to action. This paper builds on that outline by grounding the Commission’s rationale in the jurisprudence on section 35(1) of the Constitution Act, 1982. Articulating a comprehensive rationale is useful for at least three reasons. First, such a rationale can underpin a response to the claim that a required Indigenous law course lacks value for those students who do not intend …

Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai

Articles & Book Chapters

Large parts of Canada, from Ontario to parts of British Columbia and north to the Northwest Territories, are covered by the “numbered treaties”, signed between First Nations and the Crown between 1871 and 1929. These treaties provide for the continuation of Indigenous hunting, fishing and harvesting activities until the land is “taken up” by the provincial Crown for activities such as mining, lumbering and settlement. This draft book chapter argues that consent of First Nations should be required before further development that impact on their harvesting rights. The consent standard has already been widely adopted in the private sector both …

Métis Action, Canadian Law And Historical Research: Preliminary Thoughts About Strategies For Current Efforts, Signa A. Daum Shanks

Articles & Book Chapters

Given the chatter and more substantive concern about Indigenous peoples as of late, many different people and institutions are both recalling what they have done (or have not done) in the past and what they will do next. While they do so, and evident in comments from everyone from the Prime Minister (Trudeau 2015) to a rally protester, the subject of how to move forward is also of issue. Within these conversations, non-Indigenous places and peoples have contributed much to the knowledge used to make more informed decisions (Eberts 2014; Slattery 2007). At the same time, Indigenous researchers and activists …

Why Coywolf Goes To Court, Signa A. Daum Shanks

Articles & Book Chapters

This article is an effort influenced by previous works considered part of "trickster" discourse. But unlike other trickster stories meant to illustrate First Nations’ contents and processes, this presentation creates a Métis-specific example of trickster methodology and knowledge. Similar to the historic role Métis individuals have had in Canadian history, this effort contains a type of "translator" system within its citations so that the main story parallels information about trends in Canadian legal analysis. By having this format, it is hoped that those less familiar with Métis courtroom struggles will gain insight into how the pursuit of Métis constitutionalism both …

Sovereignty And Indigenous Peoples In North America, Kent Mcneil

Articles & Book Chapters

This article examines the concept of sovereignty and its application in the context of European colonization of North America. It seeks to define sovereignty so as to avoid Eurocentric notions that denied sovereignty to Indigenous peoples. The article does this by distinguishing between defacto and de jure sovereignty: the former depends on actual possession and control of a territory, whereas the latter depends on the application of a particular legal system. Unlike de facto sovereignty, which is empirical, de jure sovereignty depends on a choice of law. Because more than one legal system can be applied to territories occupied by …

Indigenous Women, Water Justice And Zaagidowin (Love), Deborah Mcgregor

Articles & Book Chapters

I would like to open by saying Chi-miigwech (a big thank-you) to those Elders/Grandmothers who have shared their stories and teachings with me over the years. Some have since passed on and I hope that through my words, their love and generosity will continue the process of healing the people and waters upon which they so integrally depend.

The paper which follows contains many references to notions of love, mutual respect, and responsibility towards the natural world, and water in particular. These ideas may seem a little tenuous for a serious paper on a critical environmental justice issue, but concepts …

Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks

Articles & Book Chapters

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a …

Exclusive Occupation And Joint Aboriginal Title, Kent Mcneil

Articles & Book Chapters

In Tsilhqot’in Nation v British Columbia, the Supreme Court of Canada for the first time issued a declaration of Aboriginal title. The area to which the declaration applies is part of the traditional territory of the Tsilhqot’in Nation, amounting to the land within the claim area that they were able to prove, to the satisfaction of Justice Vickers at trial, had been in their exclusive occupation at the time of Crown assertion of sovereignty in 1846.

The area claimed in the Tsilhqot’in Nation case was not subject to competing claims by other Aboriginal peoples. However, as is well known, …

Fiduciary Obligations And Aboriginal Peoples, Kent Mcneil

Articles & Book Chapters

No abstract provided.

The Obsolete Theory Of Crown Unity In Canada And Its Relevance To Indigenous Claims, Kent Mcneil

Articles & Book Chapters

This article examines the application of the theory of the unity of the Crown in Canada in the context of Indigenous peoples. It reveals a consistent retreat by the courts from acceptance of the theory in the late nineteenth century to rejection of it in the second half of the twentieth century. This evolution of the theory' relevance, it is argued, is consistent with Canada federal structure and eventual independence from the United Kingdom. However, in a startling reversal, the Supreme Court reverted to the theory in its 2014 judgment in Grassy Narrows First Nation v Ontario (Minister of Natural …

Indigenous Rights Litigation, Legal History, And The Role Of Experts, Kent Mcneil

Articles & Book Chapters

Litigation involving the rights of Indigenous peoples in Canada usually involves historical facts and events from a long time ago, sometimes as far back as 400 years. This reality presents significant challenges for proof of the facts upon which these rights are based. In addition to historical documents, the parties have to rely on testimony by Indigenous witnesses who are able to present the oral histories and traditions of their people, as well as on the opinion evidence of experts such as archaeologists, anthropologists, linguists, historians, ethnohistorians, and legal historians. In this paper, I examine the role of legal historians …

We Are All Here To Stay? Indigeneity, Migration, And ‘Decolonizing’ The Treaty Right To Be Here, Amar Bhatia

Articles & Book Chapters

This article examines issues of transnational migration in the settler-colonial context of Canada. First, I review some of the recent debates about foregrounding Indigeneity and decolonization in anti-racist thought and work, especially in relation to critical and anti-racist approaches to migration. The article then moves from this debate to the question of ‘our right to be here’, the relationship of this right to the treaties, and how migrant rights and treaty relations perspectives might interact in a context that must be informed by Indigenous laws and legal traditions.

A Story Of Marguerite: A Tale About Panis, Case Comment, And Social History, Signa A. Daum Shanks

Articles & Book Chapters

Those interested in social history contend that social norms deserve attention due to how they impact and are affected by historical events. This subfield has contributed significantly to how larger historical mosaics are understood, and how themes specific to marginalized groups are appreciated today. By presenting the story of enslaved Indigenous woman in New France who was the first Indigenous civil litigant in Canadian history, and focusing on her representation in the colonial legal system, a number of themes emerge. Canada’s history of slavery becomes better understood, and in so doing, a challenge to social historians is presented. By examining …