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Articles 61 - 87 of 87
Full-Text Articles in Indigenous, Indian, and Aboriginal Law
'In A Settled Country, Everyone Must Eat': Four Questions About Transnational Private Regulation, Migration, And Migrant Work, Amar Bhatia
Articles & Book Chapters
This introduction speaks to one of the questions raised by transnational private regulation: is migration always transnational? One quick answer to this question might be ‘no’. If migration is concerned with the international movement of people, then what has been called the approach of methodological nationalism would force out the ‘trans-‐’ and always substitute the international. Since methodological nationalism is an approach characterized by an overdue emphasis on states and their external borders as the sole arbiters for what registers as movement, then this answer would not surprise anyone. However, if we do not take a monopolistic approach to borders, …
Mabo Misinterpreted: The Unfortunate Legacy Of Legislative Distortion Of Justice Brennan’S Judgment, Kent Mcneil
Mabo Misinterpreted: The Unfortunate Legacy Of Legislative Distortion Of Justice Brennan’S Judgment, Kent Mcneil
Articles & Book Chapters
The High Court's bold decision in Mabo v Queensland [No 2] undoubtedly changed the legal landscape in Australia in very positive ways. For the first time, Australian common law acknowledged that the Indigenous peoples have land rights based on occupation of land in accordance with their traditional laws and customs. The Court denounced the racial discrimination inherent in past denial of these rights and outlined legal doctrines that could be used to resolve Indigenous land claims in present-day Australia. This led to the enactment of the Native Title Act 1993 (Cth) (NTA), by which the Commonwealth Parliament created a complex …
The Duty To Consult And Accommodate: Procedural Justice As Aboriginal Rights, Lorne Sossin
The Duty To Consult And Accommodate: Procedural Justice As Aboriginal Rights, Lorne Sossin
Articles & Book Chapters
This article explores the development and application of the “duty to consult and accommodate” from an administrative law perspective and more broadly con- siders the promise and limitations of procedural justice through the context of ab- original rights. The question addressed in this article is the relationship between procedural justice and substantive outcomes in the context of aboriginal rights in Canada. More specifically, by developing a “duty to consult and accommodate” on the part of the Crown with aboriginal communities who have asserted but not yet proven land claims, has the Court advanced the potential for reconciliation, or provided a …
The Crown's Fiduciary Obligations In The Era Of Aboriginal Self-Government, Kent Mcneil
The Crown's Fiduciary Obligations In The Era Of Aboriginal Self-Government, Kent Mcneil
Articles & Book Chapters
This article confronts the contention that the Crown’s fiduciary obligations are incompatible with Aboriginal self-government. Relying on Supreme Court decisions, it argues instead that the Crown has a fiduciary duty to support Aboriginal autonomy. Consequently, past infringements of the inherent right of self-government by imposition of the band council system violated the Crown’s fiduciary obligations. The appropriate remedy for this breach is restitution, involving federal assistance to enable First Nations to restore and maintain their capacity to govern themselves in accordance with their own traditions and present-day aspirations.
The Generative Structure Of Aboriginal Rights, Brian Slattery
The Generative Structure Of Aboriginal Rights, Brian Slattery
Articles & Book Chapters
Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to "existing aboriginal and treaty rights". In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with …
The Generative Structure Of Aboriginal Rights, Brian Slattery
The Generative Structure Of Aboriginal Rights, Brian Slattery
Articles & Book Chapters
Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to existing aboriginal and treaty rights. In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with …
'Prisoner Never Gave Me Anything For What He Done:' Aboriginal Voices In The Criminal Court, Shelley A. M. Gavigan
'Prisoner Never Gave Me Anything For What He Done:' Aboriginal Voices In The Criminal Court, Shelley A. M. Gavigan
Articles & Book Chapters
Aboriginal people participated in different ways in the criminal process in the early years of the North-West Territories region of Canada, including, as accused persons, as Informants, and as witnesses. Their physical participation was often mediated by interpreters, both linguistic and cultural, and their signatures invariably marked “X” on their depositions. Scholarship that has examined the relationship of Aboriginal peoples to the criminal law has tended to interrogate the criminalization and moral regulation strategies implicit in the process of colonization and domination of the First Peoples. This paper will discuss less visible aspects of the legalized processes of colonization: (1) …
The Metamorphosis Of Aboriginal Title, Brian Slattery
The Metamorphosis Of Aboriginal Title, Brian Slattery
Articles & Book Chapters
Aboriginal title has undergone a significant transformation from the colonial era to the present day. In colonial times, aboriginal title was governed by Principles of Recognition based on ancient relations between the Crown and Indigenous American peoples. With the passage of time, this historical right has evolved into a generative right, governed by Principles of Reconciliation. As a generative right, aboriginal title exists in a dynamic but latent form, which is capable of partial articulation by the courts but whose full implementation requires agreement between the Indigenous party and the Crown. The courts have the power to recognize the core …
Continuity Of Aboriginal Rights, Kent Mcneil
Continuity Of Aboriginal Rights, Kent Mcneil
Articles & Book Chapters
In this chapter from Advancing Aboriginal Claims: Visions, Strategies, Directions, Kent McNeil discusses the Van der Peet and Delgamuukw decisions in the context of the continuity of Aboriginal Rights. His essential question concerns how essential proof of continuity is for establishing Aboriginal rights: is it necessary in all cases, or only in cases concerning specific traditions, or occupation of land, subsequent to European contact or sovereignty?
Self-Government And The Inalienability Of Aboriginal Title, Kent Mcneil
Self-Government And The Inalienability Of Aboriginal Title, Kent Mcneil
Articles & Book Chapters
Aboriginal title to land, as defined by the courts, has a number of sui generis aspects. Prominent among these is its inalienability, other than by surrender to the Crown. Two explanations are usually given for this: the need to protect Aboriginal peoples from exploitation by unscrupulous European settlers, and the incapacity of the settlers to obtain title to land otherwise than by Crown grant. While acknowledging that the need for protection of Aboriginal lands was important historically, this article argues that it is paternalistic to rely on this explanation for inalienability today. The incapacity of settlers is a more satisfactory …
Aboriginal Rights In Transition: Reassessing Aboriginal Title And Governance, Kent Mcneil
Aboriginal Rights In Transition: Reassessing Aboriginal Title And Governance, Kent Mcneil
Articles & Book Chapters
In a series of important decisions, the Court has come to grips with a number of issues that it did its best to avoid in the past, involving the identification and definition of Aboriginal rights, the content of Aboriginal title to land and the requirements for proving it, and the relevance of the law of New France to Aboriginal rights today. This paper will focus on these recent developments in the law, as well as attempting to identify areas where the law of Aboriginal rights is incomplete and so requires further judicial elucidation.
The Nature Of Aboriginal Title, Brian Slattery
The Nature Of Aboriginal Title, Brian Slattery
Articles & Book Chapters
The concept of Aboriginal title is an autonomous concept of Canadian common law that bridges the gulf between Indigenous land systems and imported European land systems. It does not stem from Indigenous customary law, English common law or French civil law. It coordinates the interaction between these systems without forming part of them. In effect, it is a form of inter-societal common law.
Making Sense Of Aboriginal And Treaty Rights, Brian Slattery
Making Sense Of Aboriginal And Treaty Rights, Brian Slattery
Articles & Book Chapters
This paper proposes a basic framework for understanding the decisions of the Supreme Court of Canada relating to aboriginal and treaty rights. It argues that the foundations of these rights lie in the common law doctrine of aboriginal rights, which originated in ancient custom generated by historical relations between the Crown and indigenous peoples, as informed by basic principles of justice. This sui generis doctrine is par t of the common law of Canada and operates uniformly across the country, it also provides the context for interpreting section 35(1) of the Constitution Act, 1982. The doctrine of aboriginal rights has …
From Consultation To Reconciliation: Aboriginal Rights And The Crown’S Duty To Consult, Sonia Lawrence, Patrick Macklem
From Consultation To Reconciliation: Aboriginal Rights And The Crown’S Duty To Consult, Sonia Lawrence, Patrick Macklem
Articles & Book Chapters
The judiciary has repeatedly called on First Nations and the Crown not to tax the institutional competence of the judiciary by excessive litigation of disputes, and instead to attempt to reach negotiated settlements . It has also held that the Crown is under a duty to consult with a First Nation when it proposes to engage in an action that threatens to interfere with existing Aboriginal or treaty rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982. In this Article, the authors argue that the duty to consult requires the Crown, in most cases, to make good …
Aboriginal Lands And Resources: An Assessment Of The Royal Commission's Recommendations, Kent Mcneil
Aboriginal Lands And Resources: An Assessment Of The Royal Commission's Recommendations, Kent Mcneil
Articles & Book Chapters
The Aboriginal peoples have been living on the land in what is now Canada and deriving their livelihood from its natural resources for thousands of years. Elder Alex Stead, at a public hearing held by the Royal Commission on Aboriginal Peoples (RCAP) in Winnipeg on April 22, 1992, put it this way: "We are so close to the land. This is my body when you see this mother earth, because I live by it. Without that water, we dry up, we die. Without food from the animals, we die, because we got to live on that. That's why I call …
Aboriginal Rights In Canada In 1996: An Overview Of The Decision Of The Supreme Court Of Canada, Kent Mcneil
Aboriginal Rights In Canada In 1996: An Overview Of The Decision Of The Supreme Court Of Canada, Kent Mcneil
Articles & Book Chapters
Measured by judicial decisions, 1996 was by far the most significant year for Aboriginal rights in Canada since 1990, when the Supreme Court of Canada, in R v Sparrow, first examined the effect of recognition and affirmation of Aboriginal and treaty rights in section 35(1) of the Constitution Act 1982. The Sparrow decision acknowledged that section 35(1) provides unextinguished Aboriginal rights with constitutional protection against legislative infringement, unless the infringement can be justified by a strict test, outlined below, which the Supreme Court created. However, that decision did not address the vital question of how Aboriginal rights are …
Aboriginal Nations And The Canadian Nation, Shin Imai
Aboriginal Nations And The Canadian Nation, Shin Imai
Articles & Book Chapters
In the winter of 1763, Nipissing and Algonquin messengers were dispatched across Indian country. They carried strings of wampum and spread word of an important conference to be held at Niagara Falls. Two thousand chiefs gathered the next summer. There were Mic Mac from the east coast, Cree from the north, Iroquois from Lake Ontario, Lakota from the west—twenty-four nations in all. They were met by William Johnson, Superintendent of Indian Affairs, who presented wampum belts and gifts to negotiate a peace between the British and the First Nations.
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 …
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 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, …
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.