DOCSLIB.ORG

A Thesis Submitted to the College Of

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
A Thesis Submitted to the College Of La Chaas: The Métis Constitutional Right to Hunt in the Canadian Legal Consciousness A Thesis Submitted to the College of Graduate Studies and Research in Partial Fulfillment of the Requirements for the Degree of Master of Laws in the College of Law University of Saskatchewan Saskatoon By Bradley S. Bellemare Spring 2006 © Bradley S. Bellemare, 2006. All rights reserved. La Chaas:1 The Métis Constitutional Right to Hunt in the Canadian Legal Consciousness 2 Bradley S. Bellemare Masters of Law (LL.M.) Thesis 2006 1 La Chaas is the Michif phrase for ‘The Hunt.’ Translation was provided by Norman Fleury a Métis elder from Brandon, Manitoba. 2 “Métis Flag,” online: Métis Commission <http://www.metiscommission.com/history.htm> (as of August 21, 2005). The Métis Flag: The flag was first used by Métis resistance fighters prior to the Battle of Seven Oaks in 1816. It is the oldest Canadian patriotic flag indigenous to Canada. The Union Jack and the Royal Standard of New France bearing the fleur-de-lis are older, but these flags were first flown in Europe. As a symbol of nationhood, the Métis flag predates Canada’s Maple Leaf flag by about 150 years! The flag bears a horizontal figure eight, or infinity symbol. The infinity symbol represents the coming together of two distinct and vibrant cultures, those of European and indigenous North America, to produce a distinctly new culture, the Métis. The flag symbolizes the creation of a new society with roots in both Aboriginal and European cultures and traditions. The sky blue background of the flag emphasizes the infinity symbol and suggests that the Métis people will exist forever. PERMISSION TO USE In presenting this thesis in partial fulfillment of the requirements for the LL.M. degree from the University of Saskatchewan, College of Law, I agree that the libraries of this University may make it freely available for inspection. I further agree that permission for copying of this 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 Dean of the College Law. It is understood that any copy or publication or use of this thesis or parts thereof for 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 use which may be made of any material in my thesis. i In memory of Tom Jewiss, who always reminded me that what matters is the knowledge you receive; not the grade. For James Sákéj ‘Youngblood’ Henderson, whose guidance and work habits have inspired me to never stop learning. iv ABSTRACT The purpose of this thesis is to discuss the constitutional right of the Métis to hunt in the Canadian legal consciousness in the four levels of court that heard the Powley case and comment on the judicial approach and observations. After a comparative analysis of the precedent setting Powley decision, a brief examination is undertaken of two recent cases regarding Métis rights in Canada: Laviolette and Willison. Ultimately, the purpose of this research has been to show the treatment of Métis and First Nations’ Aboriginal rights have not been treated equally and to confront the challenges that this analysis raises. Section 35 of the Canadian Constitution has not provided the protections to Aboriginal rights that one would expect. In order to make changes to the legal system I have identified some fundamental problems with Aboriginal law in Canada associated with the identification of the source of those rights. Further, I have made some suggestions on the approaches that could be taken to change the direction of the Supreme Court of Canada regarding its interpretations of Métis rights. ii ACKNOWLEDGEMENTS I want to thank the Creator for giving me the gifts that have led me here today. I would like to acknowledge the Indigenous people of Treaty 6 for sharing their territory. Thank you to my parents: Barry and Debbie, my brother Eddie, my sister Renée for their support and my son. I would like to thank the members of my thesis committee; particularly, Glen Luther for having the confidence in me to complete this thesis. Glen’s uncanny ability to push me intellectually and not allow me to settle for anything less than an expansion of my mind is a gift or was it just that I did not do all the reading I was supposed to do in law school? A very special and heart felt thank you to James Sákéj ‘Youngblood’ Henderson for guiding me, not only through my thesis of law, but through law school. Sákéj is my Virgil through the nine rings of law. It is a blessing to be taught by the best mind in Aboriginal law. My most sincere thanks to the Native Law Centre for employing me for nearly five years on the Legal Pleadings Project: the benefit of that knowledge is priceless. Special thank you to Marg Brown for the endless hours of conversations we had about life in law school and outside of it. Marg you are a friend for life. I literally ate, worked, slept and lived in the Native Law Centre at times. Thanks to Diane for always keeping order at the Centre. A thank you to Rae, Wanda, Terri, Ruth, Zandra and Jamie Hammersmith for being friendly spirits around the Centre and Ben for always smiling and having good things to say even when the Riders lost. Thank you to the support staff at the College of Law: Michelle, Pam, and Kris. Particular thanks to the late Tom Jewiss for encouraging me to endure the December blues in first year law. To the professors at the University of Saskatchewan that shaped either half of my legal spirit: Norman Zlotkin, Martin Phillipson, Mark Carter, Paul Chartrand, Dan Ish, Isobel Findlay, Marj Benson, and the Graduate Committee at the U of S for entertaining my application to the LL.M. program at such a late stage in the summer of 2004 – thank-you. A special thanks to the Honourable Eric Cline for the encouragement to consider law school when I was still shipping produce in 1999-2000 and to Professor William Bartley for introducing me to the art of rhetoric. Thank-you to Dr. Frank Tough for the conversations about writing a thesis at the end of this project and to those that supported me at the Métis Archival Project at the U of A. Thanks to my best friends Terence Aubichon, Sterling McCallum, Darcy Singler, Danielle Park, Donald Morin, Patrick Nippi, Michael Reed, Instum Apao Pisim Ew-squoe, David Ristow, Clem Spyglass, Leah Bitternose, Rob Dobrohoczki and Steven Rodrigues. Each of you knows that being a student that I can not pay you back; I hope that this mention of you will be equitable consideration of that debt. Last, by no means least, a special thanks to Lazare and Roberta Whiskeyjack for their spiritual guidance and prayers. Without them I know I would have lost my way in this maze of thought and emotion; their guidance kept me true to love, spiritualism and good medicine in my heart. iii TABLE OF CONTENTS PERMISSION TO USE i ABSTRACT ii ACKNOWLEDGEMENTS iii TABLE OF CONTENTS v INTRODUCTION 1 CHAPTER 1 GENERAL HISTORICAL BACKGROUND TO THE MÉTIS 1.0 Ethnogenesis of the Métis People. 6 1.1 General History of the Métis in Green Lake, Saskatchewan. 9 1.2 General History of the Métis in the Northern Okanagan, British Columbia. 17 CHAPTER 2 THE SUPREME COURT AND THE MÉTIS HUNT 2.0 Background to R. v. Powley. 21 2.1 Issues of law in Powley. 23 2.1.1 The interpretive principles… 23 2.1.2 The process for determining… 28 2.1.3 Historic government recognition… 33 2.1.4 Distinct recognition of an ...…… 35 2.1.5 There is a contemporary Métis… 39 2.1.6 The relevant time/date for …..… 42 2.1.7 Characterization of the constitutional... 46 2.1.8 The right claimed is an integral.… 50 2.1.9 The Métis continue to exercise the……. 53 2.1.10 The Métis right has not been… . 56 2.1.11 The Regulatory scheme infringed……. 58 2.2 Application of the Powley test in other…… 65 v CHAPTER 3 FISHING FOR MÉTIS RIGHTS IN SASKATCHEWAN AND B.C. 3.0 British Columbia Métis Rights. 66 R. v. Willison 3.1 Saskatchewan Métis Rights. 75 R. v. Laviolette CHAPTER 4 EMPTYING THE TRAPS OF THE CANADIAN LEGAL CONSCIOUSNESS 4.0 Introduction. 83 4.1 Adjudication and Legislation. 86 4.2 Adjudication of Aboriginal Law. 88 4.2.1 The distinctness of First Nations… 4.2.2 Nature of the claim being made. 98 4.2.3 Continuity of the rights. 105 4.2.4 Other considerations in Van der Peet. 109 4.2.5 Duty of consultation. 114 4.3 Ideological Principles of Adjudication. 122 4.3.1 General idea of Aboriginal rights. 124 4.3.2 The Métis: distinct societies and… 129 4.4 Theoretical Conclusion. 135 CHAPTER 5 5.0 CONCLUSION 136 BIBLIOGRAPHY 139 vi INTRODUCTION As a Métis person, I see the pre-existing rights of Indigenous peoples being eroded in Canada. I see governments ignoring rulings from the Supreme Court of Canada about the rights that Aboriginal peoples have from our communities, our governments and within the Canadian constitution. Litigation is preferred to negotiation and we are forced into the courtroom to settle issues on a case-by-case basis.
Load more

Recommended publications
  • Who Is on Trial? Teme-Augama Anishnabai Land Rights and George Ironside, Junior: Re-Considering Oral Tradition
    RESEARCH NOTE WHO IS ON TRIAL? TEME-AUGAMA ANISHNABAI LAND RIGHTS AND GEORGE IRONSIDE, JUNIOR: RE-CONSIDERING ORAL TRADITION David T. McNab 14 Howland Road Toronto, Ontario Canada, M4K 2Z6 Abstract/Resume The Teme-Augama Anishnabai have maintained from their oral tradition for almost 150 years that they never signed or participated in the Robinson Huron Treaty of 1850. The Crown has always claimed they did sign, and has produced documents showing that annuities were paid for them. New evidence clearly suggests that the Teme-Augama Anishnabai did not sign or participate in the Treaty, and the annuities may have been pocketed by an Agent ofthe Crown. The author discusses the implications ofthis for the significance of First Nations' oral traditions and land rights in general. Sur la base de leur tradition orale, les Teme-Augama Anishnabai soutien­ nent depuis pres de 150 ans qu'ils n'ont jamais participe au Traite Huron Robinson de 1850 ni ne I'ont signe. La Couronne a toujours pretendu qu'ils I'ont signe et a presente des documents montrant que des indemnites compensatoires leur avaient ete verses. De nouvelles preuves suggerent clairement que les Teme-Augama Anishnabai n'ont ni participe au Traite ni ne I'ont signet et qu'un agent de la Couronne aurait empoche les indem­ nites. L'auteur discute des implications de cette situation en ce qui touche les traditions orales des premieres nations et les droits territoriaux en general. The Canadian Journal of Native Studies XVIII, 1(1998):117-133. 118 David T. McNab In the course of my research I recently found a significant document in the federal Department of Indian Affairs records, which are located in the National Archives ofCanada.
    [Show full text]
  • Stephanie Maclaurin. the Robinson-Superior Treaty of 1850
    Stephanie MacLaurin. The Robinson-Superior Treaty of 1850. Fort William First Nation Stephanie talks about the history of the development of Fort William First Nation’s (FWFN) treaty agreement with the Crown (federal government of Canada). Length: 5:51 minutes Summary: Stephanie introduces herself, she is the Governance Coordinator for FWFN. It is important to look at what led to the Robinson-Superior Treaty (1850). That was the Royal Proclamation of 1763 made by King George III. When he got acquisition of all the French territory, in what is now North America, Canada, specifically, King George wanted to stop the Ojibwe from selling land to whoever and the complications that arose from it, such as selling to more than one person or getting ripped off by the people to whom they were selling. The Royal Proclamation outlined Indian Territory and in Indian Territory, the settlers wouldn’t be able to settle until the land was sold properly to the Crown. The Robinson-Superior Treaty was an agreement made between the Ojibways of Lake Superior (including Stephanie’s ancestors from FWFN) and the Crown who was represented by William B. Robinson, which is why the treaty is called the Robinson-Superior Treaty. There were two Robinson treaties: the Robinson-Superior Treaty and the Robinson-Huron treaty, down by Lake Huron. FWFN was the community who pushed for the Robinson-Superior Treaty. The Canadian government was giving out mining certificates without settling the treaty with FWFN, which was in direct violation of the Royal Proclamation. FWFN representatives understood that and started to push for the treaty.
    [Show full text]
  • 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.
    [Show full text]
  • North Lake Superior Métis
    The Historical Roots of Métis Communities North of Lake Superior Gwynneth C. D. Jones Vancouver, B. C. 31 March 2015. Prepared for the Métis Nation of Ontario Table of Contents Introduction 3 Section I: The Early Fur Trade and Populations to 1821 The Fur Trade on Lakes Superior and Nipigon, 1600 – 1763 8 Post-Conquest Organization of the Fur Trade, 1761 – 1784 14 Nipigon, Michipicoten, Grand Portage, and Mixed-Ancestry Fur Trade Employees, 1789 - 1804 21 Grand Portage, Kaministiquia, and North West Company families, 1799 – 1805 29 Posts and Settlements, 1807 – 1817 33 Long Lake, 1815 – 1818 40 Michipicoten, 1817 – 1821 44 Fort William/Point Meuron, 1817 – 1821 49 The HBC, NWC and Mixed-Ancestry Populations to 1821 57 Fur Trade Culture to 1821 60 Section II: From the Merger to the Treaty: 1821 - 1850 After the Merger: Restructuring the Fur Trade and Associated Populations, 1821 - 1826 67 Fort William, 1823 - 1836 73 Nipigon, Pic, Long Lake and Michipicoten, 1823 - 1836 79 Families in the Lake Superior District, 1825 - 1835 81 Fur Trade People and Work, 1825 - 1841 85 "Half-breed Indians", 1823 - 1849 92 Fur Trade Culture, 1821 - 1850 95 Section III: The Robinson Treaties, 1850 Preparations for Treaty, 1845 - 1850 111 The Robinson Treaty and the Métis, 1850 - 1856 117 Fur Trade Culture on Lake Superior in the 1850s 128 After the Treaty, 1856 - 1859 138 2 Section IV: Persistence of Fur Trade Families on Lakes Superior and Nipigon, 1855 - 1901 Infrastructure Changes in the Lake Superior District, 1863 - 1921 158 Investigations into Robinson-Superior Treaty paylists, 1879 - 1899 160 The Dominion Census of 1901 169 Section V: The Twentieth Century Lake Nipigon Fisheries, 1884 - 1973 172 Métis Organizations in Lake Nipigon and Lake Superior, 1971 - 1973 180 Appendix: Maps and Illustrations Watercolour, “Miss Le Ronde, Hudson Bay Post, Lake Nipigon”, 1867?/1901 Map of Lake Nipigon in T.
    [Show full text]
  • B. Whose Rights Are Environmental Aboriginal and Environmental Treaty Rights?
    MOLESTED AND DISTURBED: ENVIRONMENTAL PROTECTION BY ABORIGINAL PEOPLES THROUGH SECTION 35 OF THE CONSTITUTION ACT, 1982 Brief No. 376 ISBN # 1-894158-35-0 Prepared by: Theresa McClenaghan CANADIAN ENVIRONMENTAL LAW ASSOCIATION 517 College Street, Suite 401 Toronto, Ontario M6G 4A2 Tel: 416-960-2284 Fax: 416-960-9392 E-mail: [email protected] http://www.web.net/cela September 1999 MOLESTED AND DISTURBED: ENVIRONMENTAL PROTECTION BY ABORIGINAL PEOPLES THROUGH SECTION 35 OF THE CONSTITUTION ACT, 1982. And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories, as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds . (Royal Proclamation of 1763.) ABSTRACT The author reviews the jurisprudence and academic commentary as to the protection provided by section 35 of the Constitution Act, 1982, with a view to determining whether aboriginal peoples in Canada can use section 35 as an environmental protection tool. She concludes that section 35 offers promising potential for environmental protection in specific circumstances. The author recommends that aboriginal peoples consider exercise of environmental governance. This recommendation arises out of the conclusion that there are existing environmental aboriginal and treaty rights. Environmental governance would also help with the recognition and protection of those rights under section 35. SECTION 35, CONSTITUTION ACT, 1982 Section 35 of the Constitution Act, 1982 provides: (1)The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
    [Show full text]
  • Lake Superior Study Area’S Mixed European-Indian Ancestry Community
    Historical Profile of the Lake Superior Study Area’s Mixed European-Indian Ancestry Community FINAL REPORT PREPARED BY FOR THE OFFICE OF THE FEDERAL INTERLOCUTOR SEPTEMBER 2007 Lake SuperiorMixed Ancestry Final Report Historical Profile of the Lake Superior Study Area’s Mixed European-Indian Ancestry Community TABLE OF CONTENTS Map: The proposed Lake Superior NMCA 3 Executive Summary 4 Methodology/Introduction 5 Comments on Terminology 6 Chapter 1: Study Region from the 17th Century to the 1840s 8 Ojibway Indians residing on the North Shore of Lake Superior 8 Europeans and the Study Area 9 Royal Proclamation of 1763 and the Quebec Act of 1774 12 Mention of Mixed-Ancestry people in the Study Region 15 Chapter 2: Aboriginal Pressure for a Treaty Relationship 25 Louis Agassiz and the Study Region, 1848 28 Treaty Exploratory Commission 28 Mica Bay, 1849 33 Vidal and Anderson Report 35 Government Instructions about Treaty Terms 37 Robinson Travels to Sault Ste. Marie 38 Request for Recognition of “Halfbreed” rights 40 Negotiation of the Robinson-Superior Treaty 40 Chapter 3: Post-Treaty Government Activity 44 “Halfbreed” inclusion in Robinson-Superior Treaty Annuity Paylists 44 Postal Service in the Study Region 46 Crown Activity between 1853 and 1867 46 Chapter 4: Settlement, Resource Development, and Government Administration within the Study Region, 1864-1901 51 Policing 53 Post Office and Railroad 55 Census Information and the Study Region 58 1871, 1881, and 1891 Censuses – Nipigon 59 1881 Census – Silver Islet 61 1901 Census – Nipigon Township (including Dorion), Rossport (including Pays Plat), and Schreiber 62 Small townships not included in early Censuses 63 Joan Holmes and Associates, Inc.
    [Show full text]
  • Indian Reserves on the Prairies 243
    1985] INDIAN RESERVES ON THE PRAIRIES 243 INDIAN RESERVES ON THE PRAIRIES RICHARD H. BARTLETT~ Indian reserves comprise the only land left to the Indians of the Prairie Provinces. This paper endeavors to examine and explain the rights of ownership and administra­ tion held by the Indians and Governments in such lands. It endeavors to determine what the treaties between the Indians and the Crown promised and to what extent they have been fulfilled. Rights with respect to minerals and timber are examined in the course of the study. I. THE ESTABLISHMENT OF INDIANS RESERVES BY TREATY 1 Alberta, Manitoba and Saskatchewan make up the Prairie Provinces of Canada. The southern reaches of the Provinces were the traditional lands of the plains' tribes: the Plains Cree, the Assiniboine, the Gros Ventre, the Blackfoot and the Sarcee. 2 To the north the forests were the territory of the Chipewyan, Beaver, Slave and Sekani tribes. 3 The traditional title of the Indians to their lands was recognized in the terms of the treaties that were entered into between the Crown in the right of the Dominion and the Indians. The treaties provided for the surrender of the Indian title in return for the establishment of reserves, guarantees as to hunting and fishing rights, annuities and certain social and economic undertakings. The treaties were entered into as the pressure of settlement and development demanded. Indian title in southern Manitoba and Saskat­ chewan was surrendered by Treaties #1 (1871), #2 (1871), #3 (1873) and #4 (1874). Central Manitoba, Saskatchewan and Alberta was surrendered by Treaties #5 (1875) and #6 (1876).
    [Show full text]
  • Approaching Community in the Context of Section 35 of the Constitution Act, 1982
    The Constitution’s Peoples: Approaching Community in the Context of Section 35 of the Constitution Act, 1982 Brent Olthuis* Modern negotiations between the Crown (or private Les négociations contemporaines entre la Couronne parties) and Canada’s Aboriginal peoples are largely based (ou des parties privées) et les peuples autochtones on the legal principles articulated in major court decisions. canadiens reposent largement sur les principes juridiques Yet those decisions have not yet confronted a fundamental articulés dans les principales décisions jurisprudentielles en question: how, in the first instance, do we determine which la matière. Toutefois, ces décisions n’ont pas encore abordé groups can lay claim to the Aboriginal and treaty rights une question fondamentale : comment, à la base, est-il “recognized and affirmed” by section 35 of the possible de déterminer les groupes en mesure de Constitution Act, 1982? revendiquer des droits autochtones et des droits issus de The author argues that this question ought to form the traités «reconnus et confirmés» par l’article 35 de la Loi theoretical cornerstone of the doctrine of Aboriginal and constitutionnelle de 1982 ? treaty rights. It is also of critical significance to the L’auteur affirme que cette question doit constituer la continuing process of reconciliation between the pierre d’assise théorique de la doctrine des droits Aboriginal and non-Aboriginal elements of Canadian autochtones et des droits issus de traités. Elle est également society. The interlocutors in this process must be d’une grande importance à la poursuite du processus de identifiable. réconciliation entre les composantes autochtone et non- The community recognition needed to give effect to autochtone de la société canadienne.
    [Show full text]
  • Treaty Relations in Ontario
    CHAPTER 3 TREATY RELATIONS IN ONTARIO The events that led to the death of Dudley George arose from a longstanding dispute about treaty and Aboriginal rights. Occupations of land and blockades of transportation facilities by Aboriginal people occur when members of an Aboriginal community believe that governments are not respecting their treaty or Aboriginal rights, and that effective redress through political or legal means is not available. It is typical of these events that governments have failed to respect the rights at issue or to provide effective redress, for a very long time, and a deep sense of frustration has built up within the Aboriginal community. Treaty and Aboriginal rights can only be understood in an appropriate histor- ical and legal context. Building a better relationship with Aboriginal peoples requires that governments and citizens recognize that treaties with Aboriginal peoples are the foundation that allowed non-Aboriginal people to settle in Ontario and enjoy its bounty. Nearly all of the lands and inland waters in Ontario are subject to treaties between First Nations and the British and Canadian governments. Beginning in the late 1700s and continuing right up to the 1920s, it was through treaties that the Algonquin, Ojibwe (or Chippewas, to use the British term), Odawa, Cree nations, and the Haudenosaunee (the Six Nation Iroquois Confederacy) and the governments, first of Great Britain and then of Canada, agreed to regulate their relationships and the terms on which land and resources would be shared. These treaties are not, as some people believe, relics of the dis- tant past. They are living agreements, and the understandings on which they are based continue to have the full force of law in Canada today.
    [Show full text]
  • Constitutional Conflict and the Development of Canadian Aboriginal Law
    The University of Notre Dame Australia Law Review Volume 19 Article 5 1-12-2017 Constitutional Conflict and the Development of Canadian Aboriginal Law Guy Charlton Auckland University of Technology, [email protected] Xiang Gao The Eastern Institute of Technology, Auckland, [email protected] Follow this and additional works at: https://researchonline.nd.edu.au/undalr Part of the Constitutional Law Commons, and the Indian and Aboriginal Law Commons Recommended Citation Charlton, Guy and Gao, Xiang (2017) "Constitutional Conflict and the Development of Canadian Aboriginal Law," The University of Notre Dame Australia Law Review: Vol. 19 , Article 5. Available at: https://researchonline.nd.edu.au/undalr/vol19/iss1/5 This Article is brought to you by ResearchOnline@ND. It has been accepted for inclusion in The University of Notre Dame Australia Law Review by an authorized administrator of ResearchOnline@ND. For more information, please contact [email protected]. CONSTITUTIONAL CONFLICT AND THE DEVELOPMENT OF CANADIAN ABORIGINAL LAW GUY C CHARLTON* AND XIANG GAO** ABSTRACT This paper argues that aboriginal rights in Canada have been greatly affected by 19th century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces necessarily impacted the First Nations on the ground while affecting how their legal claims were recognized and implemented. In particular they impacted the legal efficacy of treaty rights, the scope of rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty. As a result, the rights now protected under sec.
    [Show full text]
  • Is There Still “Unceded” Land in Northern Ontario, Canada, with Respect to Treaty No
    The International Indigenous Policy Journal Volume 12 | Issue 1 March 2021 Development on Indigenous Homelands and the Need to Get Back to Basics with Scoping: Is There Still “Unceded” Land in Northern Ontario, Canada, with Respect to Treaty No. 9 and its Adhesions? Leonard Tsuji University of Toronto, Canada, [email protected] Stephen Tsuji University of Waterloo, Canada, [email protected] Recommended Citation Tsuji, L., & Tsuji S. (2021). Development on Indigenous Homelands and the need to get back to basics with scoping: Is there still “unceded” land in Northern Ontario, Canada, with respect to Treaty No. 9 and its Adhesions? The International Indigenous Policy Journal, 12(1). https://doi.org/10.18584/iipj.2021.12.1.8551 Development on Indigenous Homelands and the Need to Get Back to Basics with Scoping: Is There Still “Unceded” Land in Northern Ontario, Canada, with Respect to Treaty No. 9 and its Adhesions? Abstract Scoping includes the establishment of unambiguous spatial boundaries for a proposed development initiative (e.g., a treaty) and is especially important with respect to development on Indigenous homelands. Improper scoping leads to a flawed product, such as a flawed treaty or environmental impact assessment, by excluding stakeholders from the process. A comprehensive literature search was conducted to gather (and collate) printed and online material in relation to Treaty No. 9 and its Adhesions, as well as the Line-AB. We searched academic databases as well as the Library and Archives Canada. The examination of Treaty No. 9 and its Adhesions revealed that there is unceded land in each of four separate scenarios, which are related to the Line-AB and/or emergent land in Northern Ontario, Canada.
    [Show full text]
  • The Williams Treaties
    TREATY RESEARCH REPORT THE WILLIAMS TREATIES by Robert J. Surtees Treaties and Historical Research Centre Indian and Northern Affairs Canada 1986 The opinions expressed by the author in this report are not necessarily those of the Department of Indian and Northern Affairs Canada. Les opinions présentés par l’auteur de ce rapport ne sont pas forcement ceux du Ministère des Affaires indiennes et du Nord Canada. TABLE OF CONTENTS HISTORICAL BACKGROUND.......................................... -1- THE MAKING OF THE WILLIAMS TREATIES............................. -15- APPENDIX A: Report of R.V. Sinclair .................................... -21- BIBLIOGRAPHY .................................................... -30- -1- HISTORICAL BACKGROUND Three separate and large parcels of land in southern and central Ontario were acquired by the Government of Canada in 1923. Known collectively as the Williams Treaties, the agreements which provided for these acquisitions concerned the following areas of land: 1. A Section enclosed by the northern shore of Lake Ontario, about one township in depth between the Trent River and the Etobicoke River; 2. A parcel of land lying between the northern extremity of (1) above and Lake Simcoe and bounded approximately by the Holland River and the boundary between the counties of Victoria and Ontario; 3. A very large tract lying between Lake Huron and the Ottawa River bounded on the north by the Mattawa River-Lake Nipissing and French Line and on the south by earlier treaties concluded in 1818 and 1819. Several points concerning these agreements are noteworthy. 1. The land area is enormous. The first two parcels together contained about 2500 square miles and the third involved approximately 17,600 square miles, a total of 12,944,400 acres.
    [Show full text]