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Chapter 10 Aboriginal Rights
M10_TELF6850_01_SE_C10.indd Page 185 22/04/14 7:24 PM user /206/PHC00138/9780132546850_PHC00138/PHC00138_AN_INTRODUCTION_TO_CANADIAN_POLITIC ... Chapter 10 Aboriginal Rights Key Points n The rules of the game have always been different for Aboriginal peoples in Canada. n Aboriginal peoples constituted self-governing communities in North America before the arrival of Europeans, and they entered into treaty arrangements with the Crown in many parts of Canada, although not everywhere (particularly British Columbia). n Treaty arrangements with Aboriginal peoples were frequently ignored, and at Confederation Aboriginal peoples were subjected to a form of internal colonialism. n In light of important court decisions in the 1960s and 1970s, the governments of Canada recognized and affirmed Aboriginal rights in the Constitution Act 1982. n But the governments of Canada have been reluctant to negotiate a comprehensive settlement with Aboriginal peoples, so it has fallen to the Supreme Court to define the scope and meaning of Aboriginal rights, including self-government. n The constitutional promises of 1982 are still not fulfilled, but it is clear that Aboriginal peoples constitute unique citizens in Canada. n While Aboriginal rights are now constitutionally protected, many Aboriginal communities are still mired in poverty. For many Canadians, the Charter of Rights and Freedoms is the cornerstone of the Constitution Act 1982, but Part II of the new constitution is potentially even more signifi- cant. Here we find, in one very brief section, the recognition and affirmation of Aboriginal rights. Section 35 was an afterthought for Pierre Trudeau and the provincial premiers, and it reads more like a promissory note than a plan for a new order of government. -
Examining the Provisions of Section 87 of the Indian Act As a Means To
Examining the Provisions of Section 87 of the Indian Act as a Means to Promote Economic Participation and Treaty Implementation by Myra J Tait A Thesis submitted to the Faculty of Graduate Studies of The University of Manitoba in partial fulfilment of the requirements of the degree of MASTER OF LAWS Faculty of Law University of Manitoba Winnipeg Copyright © 2017 by Myra J Tait ii ABSTRACT Canadian courts, despite recognition in the Canadian Constitution, 1982 that treaties are to govern the Crown-Aboriginal relationship, continue to develop principles of interpretation that narrow Aboriginal and treaty rights, including the taxation provisions of the Indian Act. In Robertson, the Federal Court of Appeal, building on Mitchell v Peguis, articulated a “historic and purposive” analysis, by reliance on a distinctive culture test and an ascribed protection rationale, thereby abrogating the fundamental treaty relationship. As a means to fuller implementation of the spirit and intent of Treaties, taxation provisions must be interpreted in a treaty-compliant manner. The potential for economic participation through a proposed “urban reserve” on the Kapyong Barracks in Winnipeg, Manitoba, as part of a Treaty 1 settlement, is discussed as a case study, and compared with similar developments in New Zealand, under a Waitangi Tribunal settlement, as an example of treaty compliance in economic development. Key words: Indian Act s87; Economic development; Historic and purposive; Tax exemption; Numbered Treaties; Treaty interpretation; Treaty implementation; Urban reserves; Native Leasing Services, Kapyong; Waitangi Tribunal. iii Acknowledgements Ehara taku toa, he takitahi, he toa takitini—Success is not the work of one, but of many. -
Aboriginal Title and Private Property John Borrows
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 71 (2015) Article 5 Aboriginal Title and Private Property John Borrows Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Borrows, John. "Aboriginal Title and Private Property." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 71. (2015). http://digitalcommons.osgoode.yorku.ca/sclr/vol71/iss1/5 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The uS preme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. Aboriginal Title and Private Property John Borrows* Q: What did Indigenous Peoples call this land before Europeans arrived? A: “OURS.”1 I. INTRODUCTION In the ground-breaking case of Tsilhqot’in Nation v. British Columbia2 the Supreme Court of Canada recognized and affirmed Aboriginal title under section 35(1) of the Constitution Act, 1982.3 It held that the Tsilhqot’in Nation possess constitutionally protected rights to certain lands in central British Columbia.4 In drawing this conclusion the Tsilhqot’in secured a declaration of “ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land”.5 These are wide-ranging rights. -
The Spirit and Intent of Treaty Eight: a Sagaw Eeniw Perspective
The Spirit and Intent of Treaty Eight: A Sagaw Eeniw Perspective A Thesis Submitted to the College of Graduate Studies and Research in Partial Fulfillment of the Requirement for a Masters Degree in the College of Law University of Saskatchewan Saskatoon By Sheldon Cardinal Fall 2001 © Copyright Sheldon Cardinal, 2001. All rights reserved. PERMISSION TO USE In presenting this thesis in partial fulfillment ofthe requirements for a graduate degree from the University ofSaskatchewan, I agree that the Libraries ofthis University may make it freely available for inspection. I further agree that permission for copying ofthis thesis in any manner, in whole or in part, for scholarly purposes may be granted by the professor or professors who supervised my thesis work or, in their absence, by the Head ofthe Department or the Dean of the College in which my thesis work was done. It is understood that any copying or publication or use ofthis thesis orparts thereoffor financial gain shall not be allowed without my written permission. It is also understood that due recognition shall be given to me and to the University of Saskatchewan in any scholarly use which may be made of any material in my thesis. Requests for permission to copy or to make other use ofmaterial in this thesis in whole or part should be addressed to: The Dean, College ofLaw University ofSaskatchewan Saskatoon, Saskatchewan S7N5A6 1 ACKNOWLEDGEMENTS There are a number ofpeople that I would like to thank for their assistance and guidance in completing my thesis. First, I would like to acknowledge my family. My parents, Harold and Maisie Cardinal have always stressed the importance ofeducation. -
Placing Vulnerability at the Centre of Section 15(1) of the Charter: a Case Comment on Inglis V British Columbia (Minister of Public Safety)
Placing Vulnerability at the Centre of Section 15(1) of the Charter: A Case Comment on Inglis v British Columbia (Minister of Public Safety) Connor Bildfell* In order to advance substantive equality under Afin de faire progresser l'dgalite reelle selon the Charter through the section 15(1) frame- la Charte grdce au cadre de l'rticle 15(1), work, Canadian courts should shift towards les tribunaux canadiens devraient adopter un a vulnerability-centric model that focuses on modile centre sur la vulndrabilitiqui accorde protecting individuals and groups who expe- la prioriti & la protection d'individus et de rience vulnerability based on enumerated or groupes qui connaissent la vulndrabilite selon analogous grounds. In adjudicating claims des motifs inumirs ou analogues. Au mo- under section 15(1), Canadian courts have oc- ment de statuer sur des rilamationsen vertu casionally invoked the notion of "vulnerabili- de l'rticle 15(1), les tribunaux canadiens ont ty. "However, the courts have yet to engage in a parfois invoque la notion de la o vulndrabilite thorough discussion of the term's meaning and ). Cependant, ils nontpas encore entami une implications across specific contexts. This arti- discussion approfondie de la signification et la cle explores the meaning and contours of "vul- porte du terme dans des contextesparticuliers. nerability" and analyzes the prospectofusefully L'uteur de cet article examine la signification integratingvulnerability into the section 150) et les contours de la o vulndrabilite ) et fait framework. This includes a discussion of how l'nalyse de la possibilite d'intigrer utilement the section 15(1) test as currently formulated la vulndrabilitidans le cadrede l'article 15(1). -
R. V. Van Der Peet, [1996] 2 S.C.R
R. v. Van der Peet, [1996] 2 S.C.R. 507 Dorothy Marie Van der Peet Appellant v. Her Majesty The Queen Respondent 1996 CanLII 216 (SCC) and The Attorney General of Quebec, the Fisheries Council of British Columbia, the British Columbia Fisheries Survival Coalition and the British Columbia Wildlife Federation, the First Nations Summit, Delgamuukw et al., Howard Pamajewon, Roger Jones, Arnold Gardner, Jack Pitchenese and Allan Gardner Interveners Indexed as: R. v. Van der Peet File No.: 23803. 1995: November 27, 28, 29; 1996: August 21. Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. on appeal from the court of appeal for british columbia Constitutional law -- Aboriginal rights -- Right to sell fish on non-commercial basis -- Fish caught under native food fish licence -- Regulations - 2 - prohibiting sale or barter of fish caught under that licence -- Fish sold to non-aboriginal and charges laid -- Definition of "existing aboriginal rights" as used in s. 35 of Constitution Act, 1982 -- Whether an aboriginal right being exercised in the circumstances -- Constitution Act, 1982, s. 35(1) -- Fisheries Act, R.S.C. 1970, c. F-14, s. 61(1) -- British Columbia Fishery (General) Regulations, SOR/84-248, s. 27(5). The appellant, a native, was charged with selling 10 salmon caught under the 1996 CanLII 216 (SCC) authority of an Indian food fish licence, contrary to s. 27(5) of the British Columbia Fishery (General) Regulations, which prohibited the sale or barter of fish caught under such a licence. The restrictions imposed by s. -
From Calder to Mitchell: Should the Courts Patrol Cultural Borders? Peter W
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 16 (2002) Article 8 From Calder To Mitchell: Should the Courts Patrol Cultural Borders? Peter W. Hutchins Anjali Choksi Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Hutchins, Peter W. and Choksi, Anjali. "From Calder To Mitchell: Should the Courts Patrol Cultural Borders?." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 16. (2002). http://digitalcommons.osgoode.yorku.ca/sclr/vol16/iss1/8 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The uS preme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. FROM CALDER TO MITCHELL: SHOULD THE COURTS PATROL CULTURAL BORDERS? Peter W. Hutchins* Anjali Choksi** In what sense is an era ever truly finished — who sets the boundaries and how are they patrolled. Do we not have overwhelming evidence, in our time and in every period we study of an odd interlayering of cultural perspectives and a mixing of peoples, so that nothing is ever truly complete or unitary.1 The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.2 ... Constitutional protection of indigenous difference ought to extend beyond pro- tection of certain customs, practices, and traditions integral to Aboriginal cultures to include protection of interests associated with territory, sovereignty, and the treaty process.3 I. -
Appellants – Her Majesty the Queen in Right of Alberta
File No. 33340 SUPREME COURT OF CANADA (ON APPEAL FROM A JUDGMENT OF THE COURT OF APPEAL OF ALBERTA) BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA (MINISTER OF ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT) and REGISTRAR, METIS SETTLEMENTS LAND REGISTRY APPELLANTS (Respondents) -and- BARBARA CUNNINGHAM and JOHN KENNETH CUNNINGHAM, LA WRENT (LAWRENCE) CUNNINGHAM, RALPH CUNNINGHAM, LYNN NOSKEY, GORDON CUNNINGHAM, ROGER CUNNINGHAM AND RAY STUART RESPONDENTS (Appellants) -and- ATTORNEY GENERAL OF QUEBEC ATTORNEY GENERAL OF SASKATCHEWAN ATTORNEY GENERAL OF ONTARIO INTERVENERS APPELLANTS' FACTUM Mr. Robert J. Normey Henry S. Brown, Q.C. Mr. David Kamal Gowling Lafleur Henderson LLP Attorney General of Alberta Suite 2600 4th Floor 160 Elgin Street Bowker Building Ottawa, Ontario 9833 - 109th Street KIP 1C3 Edmonton, Alberta T5K2E8 Tel.: 780422-9532 Tel.: 613 233-1781 Fax: 780425-0307 Fax: 613 788-3433 [email protected] henry. [email protected] Counsel for the Appellants Agent for the Appellants -11- Mr. Kevin Feth Mr. Dougald E. Brown Field LLP Nelligan O'Brien Payne LLP Suite 2000 Suite 1500 10235 - 101 Street 50 O'Connor Street Edmonton, Alberta Ottawa, Ontario T5J 3GI KIP 6L2 Tel.: 780423-7626 Tel.: 613 231-8210 Fax: 780424-7116 Fax: 613 788-3661 [email protected] [email protected] Counsel for the Respondents Agent for the Respondents Ms. Isabelle Harnois Mr. Pierre Landry Attorney General of Quebec Noill & Associes 2nd Floor III Champlain Street 1200 Route de l'Eglise Gatineau, Quebec Ste-Foy, Quebec J8X 3RI GlY 4MI Tel.: 418 643-1477 Tel.: 819771-7393 Fax: 418 646-1696 Fax: 819771-5397 [email protected] [email protected] Counsel for the Intervener Agent for the Intervener Attorney General of Quebec Attorney General of Quebec Attorney General of Saskatchewan Brian A. -
The Supreme Court of Canada and Constitutional (Equality) Baselines
Osgoode Hall Law Journal Volume 50, Issue 3 (Spring 2013) Rights Constitutionalism and the Canadian Charter of Article 7 Rights and Freedoms Guest Editors: Benjamin L. Berger & Jamie Cameron The uprS eme Court of Canada and Constitutional (Equality) Baselines Rosalind Dixon Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Part of the Constitutional Law Commons Special Issue Article Citation Information Dixon, Rosalind. "The uS preme Court of Canada and Constitutional (Equality) Baselines." Osgoode Hall Law Journal 50.3 (2013) : 637-668. http://digitalcommons.osgoode.yorku.ca/ohlj/vol50/iss3/7 This Special Issue Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. The uprS eme Court of Canada and Constitutional (Equality) Baselines Abstract In its approach to defining “analogous grounds” for the purposes of subsection 15(1) of the Charter of Rights and Freedoms, the Supreme Court of Canada has adopted an unusual mix of broad and generous interpretation, and high formalism. This article argues that one potential reason for this is the degree of heterogeneity among the nine distinct enumerated grounds in section 15. Heterogeneity of this kind can produce quite different interpretive consequences, depending on whether a court adopts a direct, “multi- pronged,” or a more synthetic, “common denominator,” approach to the question of analogical development. The ourC t, over time, has implicitly shifted from the first to the second of these approaches. For comparative constitutional scholars, a lesson of Canadian Charter jurisprudence is thus that the number and scope of the analogical baseline categories in a constitution—and how courts approach their relationship to each other—can matter a great deal for the subsequent recognition of new constitutional categories. -
The Law of Native American Hunting, Fishing and Gathering Outside of Reservation Boundaries in the United States and Canada
Canada-United States Law Journal Volume 39 Issue Article 5 January 2014 The Law of Native American Hunting, Fishing and Gathering Outside of Reservation Boundaries in the United States and Canada Guy Charlton Follow this and additional works at: https://scholarlycommons.law.case.edu/cuslj Part of the Transnational Law Commons Recommended Citation Guy Charlton, The Law of Native American Hunting, Fishing and Gathering Outside of Reservation Boundaries in the United States and Canada, 39 Can.-U.S. L.J. 69 (2015) Available at: https://scholarlycommons.law.case.edu/cuslj/vol39/iss/5 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Canada-United States Law Journal by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. THE LAW OF NATIVE AMERICAN HUNTING, FISHING AND GATHERING RIGHTS OUTSIDE OF RESERVATION BOUNDARIES IN THE UNITED STATES AND CANADA Guy Charlton* ABSTRACT: This article examines and compares the law of Native American/Aboriginal hunting, fishing and gathering rights in those areas which are located outside of reserved land area in Canada and the United States. The article argues that despite the differing statutory and constitutional traditions, both states’ law and policy towards the Native American continues to reflect the underlying premises of the colonial project. While indigenous peoples have significant use rights, national, state and provincial power remains the primary locus of regulatory authority. However, there may be opportunities to extend use and co-management rights to allow tribes to be involved in land use and environmental regulatory decisions. -
Genesis of the Duty to Consult & Supreme Court
THE GENESIS OF THE DUTY TO CONSULT AND THE SUPERME COURT The judicial genesis of the legal duty of consultation began with a series of Aboriginal right and title decisions providing the foundational principles of the duty to consult. Guerin Beginning prior to the repatriation of Canada’s constitution, the Supreme Court in Guerin1 found that the Crown had violated its fiduciary duty to the band by failing to consult with them when they accepted a lesser lease and unilaterally changed the legal position of the band, without their knowledge or consent. Justice Dickson stated “In obtaining, without consultation, a much less valuable lease than the promised, the Crown, breached the fiduciary obligation it owed the band.” Sparrow Then in 1990, the Supreme Court in Sparrow2 deliberated its first post 1982 Aboriginal rights case to explore the content of s. 35 of the Constitution Act, 19823 where the court expressly limited Crown power and conduct by affirming a duty to consult with West Coast Salish asserting their inherent and constitutionally protected right to fish through a ‘justification test’ where the duty to consult is one factor to be considered when justifying an infringement on Aboriginal rights. Van der Peet In 1996 the Supreme Court further developed foundational principles on the duty to consult in their adjudication of the definition of an Aboriginal right in R v Van der Peet.4 Van Der Peet is important for proving CHRs off reserve. Nikal Next in 1996, another Supreme Court decision constraining crown power and affirming the duty to consult regarding resources to which Aboriginal peoples make claim was made in Nikal, where Cory J. -
R. V. Sparrow, [1990] 1 S.C.R. 1075 Ronald Edward Sparrow Appellant
R. v. Sparrow, [1990] 1 S.C.R. 1075 Ronald Edward Sparrow Appellant v. Her Majesty The Queen Respondent and The National Indian Brotherhood / Assembly of First Nations, the B.C. Wildlife Federation, the Steelhead Society of British Columbia, the Pacific Fishermen's Defence Alliance, Northern Trollers' Association, the Pacific Gillnetters' Association, the Gulf Trollers' Association, the Pacific Trollers' Association, the Prince Rupert Fishing Vessel Owners' Association, the Fishing Vessel Owners' Association of British Columbia, the Pacific Coast Fishing Vessel Owners' Guild, the Prince Rupert Fishermen's Cooperative Association, the Co-op Fishermen's Guild, Deep Sea Trawlers' Association of B.C., the Fisheries Council of British Columbia, the United Fishermen and Allied Workers' Union, the Attorney General for Ontario, the Attorney General of Quebec, the Attorney General of British Columbia, the Attorney General for Saskatchewan, the Attorney General for Alberta and the Attorney General of Newfoundland Interveners indexed as: r. v. sparrow File No.: 20311. 1988: November 3; 1990: May 31. - 2 - Present: Dickson C.J. and McIntyre*, Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ. on appeal from the court of appeal for british columbia Constitutional law -- Aboriginal rights -- Fishing rights -- Indian convicted of fishing with net larger than permitted by Band's licence -- Whether or not net length restriction inconsistent with s. 35(1) of the Constitution Act, 1982 -- Constitution Act, 1982, ss. 35(1), 52(1) -- Fisheries Act, R.S.C. 1970, c. F-14, s. 34 -- British Columbia Fishery (General) Regulations, SOR/84-248, ss. 4, 12, 27(1), (4). Indians -- Aboriginal rights -- Fishing rights -- Interpretation -- Indian convicted of fishing with net larger than permitted by Band's licence -- Whether or not net length restriction inconsistent with s.