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Dalhousie Law Journal

Articles 31 - 43 of 43

Full-Text Articles in Indigenous, Indian, and Aboriginal Law

Getting Their Feet Wet: The Supreme Court And The Practical Implementation Of Treaty Rights In The Marshall Case, Phillip Saunders Apr 2000

Getting Their Feet Wet: The Supreme Court And The Practical Implementation Of Treaty Rights In The Marshall Case, Phillip Saunders

Dalhousie Law Journal

Judicial decisions which recognize aboriginal or treaty rights to natural resources inevitably lead on to a process of negotiation, as governments and aboriginal and other users of the resource define the access and management regimes which allow for practical implementation of the legal rights. Courts should be cognizant of the impact of their decisions on such negotiations, and provide adequate clarity and substantive guidance to negotiators. This article considers the decisions of the Supreme Court of Canada in the Marshall case from this perspective, and details the shortcomings which made the prospects for successful negotiations less favourable. The weaknesses in …

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Marshalling Principles From The Marshall Morass, Leonard Rotman Apr 2000

Marshalling Principles From The Marshall Morass, Leonard Rotman

Dalhousie Law Journal

The Marshall case is the latest in a long series of Supreme Court of Canada decisions concerned with the interpretation of treaties between the Crown and aboriginal peoples in Canada. While the majority and minority judgments agreed on the principles of treaty interpretation to be applied in the case, the significant divergence in opinion between the majority and minority decisions provides important commentary on the differences between articulating and applying these principles. The Marshall case is also noteworthy for the manner in which it addresses similarities and differences pertaining to aboriginal and treaty rights. Because of these various traits, the …

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An Empty Shell Of A Treaty Promise: R. V. Marshall And The Rights Of The Non-Status Indians, Pamela Palmater Apr 2000

An Empty Shell Of A Treaty Promise: R. V. Marshall And The Rights Of The Non-Status Indians, Pamela Palmater

Dalhousie Law Journal

One of the difficult issues presented by R. v. Marshall is that of who is a Mi'kmaq person, or more generally who is entitled to claim to be a beneficiary of the Treaties of 1760-61. This paper examines a number of possible approaches to this matter, including ones based on residence (on or off reserve), descent and the terms of the Indian Act. It notes the deficiencies of existing tests and of Canadian case law that has addressed Aboriginal identity in other contexts. It concludes by noting that the negotiations which must follow in the wake of Marshall present the …

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Du Dialogue Au Monologue - Un Commentaire Sur I'Arrêt R. V. Marshall, Nathalie Des Rosiers Apr 2000

Du Dialogue Au Monologue - Un Commentaire Sur I'Arrêt R. V. Marshall, Nathalie Des Rosiers

Dalhousie Law Journal

The author develops a model of constitutional dialogue which aims at helping the resolution of majority-minority conflicts. The model is applied to the aboriginal rights context. The author concludes that because of the ambivalences expressed by the Supreme Court of Canada in the Van der Peet case in particular, the federal government has not incorporated the Sparrow-Badger approach in its litigation and has failed even to attempt to comply with the justification requirements. This failure of the federal government to endorse the Sparrow-Badger approach in its continuing litigation strategy is the real tragedy in the Marshall case.

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Was Amerindian Dispossession Lawful? The Response Of 19th-Century Maritime Intellectuals, D G. Bell Apr 2000

Was Amerindian Dispossession Lawful? The Response Of 19th-Century Maritime Intellectuals, D G. Bell

Dalhousie Law Journal

In the half-century ending about the time of Confederation a dozen writers addressed awkward questions about an earlier generation's dispossession of Maritime Amerindians from land and resources: had it been lawful; if so, how; if not, what should be done? In the main they approached it as an abstract question, divorced from those particulars of local history that would become the focus of late-20th-century investigation. Those who theorized that English tradition made dispossession lawful did so with reference to the doctrine of "discovery" or to the proposition, grounded in Locke and accepted widely in colonial public opinion, thatAmerindian possession of …

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Of Provinces And S.35 Rights, Kerry Wilkins Apr 1999

Of Provinces And S.35 Rights, Kerry Wilkins

Dalhousie Law Journal

It is now well established that federal law and regulatory activity may interfere with the exercise of aboriginal peoples' existing treaty and aboriginal rights, despite s. 35(1) of the Constitution Act, 1982, whenever the federal government can justify the interference. It is not yet clear, though, what power, if any, Canada's provinces have to regulate, even in justified ways, such rights and their exercise. This article argues that the provinces, as a general rule, have no such authority. Except in certain very specific and isolated circumstances, they have no power, even apart from s. 35, to regulate the exercise of …

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Prosecuting The Fishery: The Supreme Court Of Canada And The Onus Of Proof In Aboriginal Fishing Cases, Peggy J. Blair Apr 1997

Prosecuting The Fishery: The Supreme Court Of Canada And The Onus Of Proof In Aboriginal Fishing Cases, Peggy J. Blair

Dalhousie Law Journal

In Sparrow and other decisions, the Supreme Court of Canada has outlined certain tests which must be met by the Crown and defence in the trial of aboriginal fishing cases where s.35 rights are at issue. This article describes the shifting burdens of proof which have resulted from those tests. The author argues that the Supreme Court of Canada has imposed procedural and substantive requirements of proof on the defence which may in themselves be unconstitutional.

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Mikmaw Tenure In Atlantic Canada, James [Sákéj] Youngblood Henderson Oct 1995

Mikmaw Tenure In Atlantic Canada, James [Sákéj] Youngblood Henderson

Dalhousie Law Journal

The Supreme Court of Canada has characterized aboriginal title to land as a sui generis legal interest. This essay describes the sui generis interest of Mikmaw tenure in Atlantic Canada from a Mikmaq linguistic perspective. The author argues the prerogative treaties and legislation of the eighteenth century suggest it is a reserved and protected tenure, which in Eurocentric law might be reconceptualized as allodial tenure.

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Reservation Geography And The Restoration Of Native Self-Government, Robert White-Harvey Oct 1994

Reservation Geography And The Restoration Of Native Self-Government, Robert White-Harvey

Dalhousie Law Journal

Recognition of the spatial aspects of Indian settlement on reserves is vital to understanding the potential for Native self-government. In particular, the number and size of reserves, as well as the remoteness, accessibility and dispersal of Native land holdings must be considered. They can impact on the viability and cost of Native courts and institutions, the solidarity of bands, and the economic livelihood of reserve residents. As Native self-government is fleshed out in constitutional reform talks and experiments in limited self-government, it is not widely known that all of the reserves in every province of Canada combined would not cover …

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A Note About In The Rapids, Wendy Whitecloud Oct 1994

A Note About In The Rapids, Wendy Whitecloud

Dalhousie Law Journal

In The Rapids presents the views of the authors regarding First Nations people in Canada and the issues confronting them as individuals, within their nations, and within their communities. Mary Ellen Turpel and Ovide Mercredi are both First Nations Individuals. They share their own points of view and provide information with respect to these issues in their book. Throughout the book the authors share information by canvassing issues like the significance of Treaties to First Nations people; the provisions of the Indian Act and its effects on First Nations people; disputes over lands and resources; the social consequences of the …

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Justification And Cultural-Authority In S.35(1) Of The Constitution Act, 1982: Regina V. Sparrow, Chris Tennant Oct 1991

Justification And Cultural-Authority In S.35(1) Of The Constitution Act, 1982: Regina V. Sparrow, Chris Tennant

Dalhousie Law Journal

Regina v. Sparrow is the first decision of the Supreme Court of Canada under s.35(1) of the Constitution Ac 1982. The case has wide-reaching implications for the recognition and limitation of aboriginal rights. This case comment will explore some of the implications of Sparrow, with a focus on the test developed by the Court for the justification of government regulation of aboriginal rights. In particular, the question of the cultural authority of non-aboriginal judges to justify legislation regulating aboriginal rights will be addressed.

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Improving Access To Legal Education For Native People In Canada: Dalhousie Law School's I.B.M. Program In Context, Hugh Macaulay May 1991

Improving Access To Legal Education For Native People In Canada: Dalhousie Law School's I.B.M. Program In Context, Hugh Macaulay

Dalhousie Law Journal

This paper is about access to legal education for Native peoples in Canada. It is important at the very outset of this undertaking to explain my interest in this issue and to describe the perspective from which I write. At the beginning of the 1989-90 academic year I returned to Halifax to discover that Dalhousie had implemented a program to increase access for Blacks and Micmacs to legal education. Motivated by my support for this initiative, I applied to be a tutor in the program and was fortunate enough to be selected.

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The University Of Saskatchewan Native Law Centre, Ruth Thompson Mar 1988

The University Of Saskatchewan Native Law Centre, Ruth Thompson

Dalhousie Law Journal

In the minds of many, the Native Law Centre is identified with the Program of Legal Studies for Native People, a prerequisite orientation program for native students admitted to law school in the discretionary category. The association of the two is inevitable since the Native Law Centre has its origins in the Program of Legal Studies for Native People and continues to offer the course each summer. However, the Centre provides other resources and conducts several activities other than the "summer program" (as the Program of Legal Studies for Native People is often called). This note will give a brief …

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