Indigenous Self-Government and Criminal Law: The Path Towards Concurrent Jurisdiction in Canada

This is a special contribution that has not been peer-reviewed. The past few decades have seen an increase in culturally responsive policies and programs aimed at ameliorating the hardship and disadvantage faced by Indigenous peoples in the Canadian criminal justice system. These policies and programs, however, operate within a criminal justice system that consistently fails Indigenous peoples. What has yet to be tried is a nation-to-nation approach to criminal law jurisdiction where Indigenous peoples have legislative authority to enact and administer their own criminal laws. This paper shows that Indigenous jurisdiction over criminal law is possible within Canada’s constitutional framework. In Part I, I outline the current state of Indigenous self-government over criminal law. Although initiatives such as sentencing circles and Indigenous courts allow Indigenous peoples to exercise greater self-government over the administration of justice, they still do not exercise true criminal law-making authority. In Part II, I analyze existing discussions about separate Indigenous justice systems and identify a framework for how concurrent jurisdiction over criminal law can be exercised. In Part III, I draw on the doctrine of cooperative federalism to argue that Indigenous jurisdiction over criminal law can coexist with the federal government’s jurisdiction over criminal law. Lastly, in Part IV, I discuss four ways Indigenous nations can attain jurisdiction over criminal law: (1) a constitutional amendment; (2) a self-government agreement; (3) a claim under section 35 of the Constitution Act, 1982; and (4) federal legislation. While a constitutional amendment is the preferable solution, I argue that federal legislation informed by Indigenous peoples is the best alternative

CRISPR, Like any Other Technology: Shedding Determinism & Reviving Athens

This article examines current narratives surrounding CRISPR (clustered regularly interspaced short palindromic repeats) and the current Canadian treatment of this novel biotechnology. It argues that Canada’s current approach to genetic research and CRISPR appear to have succumbed to the false narrative of technological determinism. It argues that Canada must buck the narrative and alter the current status quo in two principal ways: Canada should pursue more somatic CRISPR clinical trials in humans and permit pre-clinical germline editing. To design a regulatory regime for clinical germline editing and better guidance on somatic CRISPR clinical trials, Canada should engage Deliberative Polling to ensure Canadians’ views are represented in future legislation and regulations

Digital Surveillance of COVID-19: Privacy and Equity Considerations

In this paper, we examine the potentially deleterious effects of surveillance on vulnerable Canadians. A wide range of digital surveillance technologies have either been deployed or considered for deployment both in Canada and around the world in response to the international emergency created by the COVID-19 pandemic. Some of these technologies are highly effective in predicting or identifying individual cases and/or outbreaks; others assist in tracing contacts or enforcing compliance with quarantine and isolation measures. However, there are necessarily risks associated with their deployment. First are the infringements on privacy rights of citizens and groups. Second, these technologies run the risk of ‘surveillance creep’ in the context of their desired usage for purposes and in time frames other than for fighting a pandemic. Third, some of these technologies impact more severely on members of racialized and socioeconomically disadvantaged groups. We argue that, without addressing the impact that digital technologies have on vulnerable populations in relation to COVID-19, legislators risk deepening the inequalities that create the very conditions for transmission of the virus and that put vulnerable persons at greater risk of contracting the disease

A Human Rights and Legal Analysis of the Understanding Our Roots Report

In October 2023, the University released Understanding Our Roots - Nstikuk tan wtapeksikw Report written by the Task Force on Settler Misappropriation of Indigenous Identity. The Report recommends the creation of a Standing Committee who would verify claims to Indigenous identity by students, faculty and staff seeking to benefit from any opportunity at the University that prioritizes access for Indigenous peoples, as well as investigate and recommend sanction in cases of suspected academic fraud whereby an individual assumes an Indigenous identity. The Report does not address or respond to potential legal issues and rights violations arising from its recommendation. To our knowledge, no legal analysis has been conducted on the implications of the proposed verification process. In the hopes of encouraging more nuance and circumspection on this issue we offer the following analysis, informed by our respective areas of expertise. Our concerns about the Report can be distilled into the following: The Task Force was comprised of members unqualified in the historical and legal complexity of Indigenous identity; The Task Force’s engagement process may have violated research ethics, was grossly inadequate in both scope and timeline, and may be in breach of procedural fairness standards; The proposed verification process conflates self-identification and uncertainty over Indigenous identity with academic fraud; The proposed verification process is underinclusive and discriminatory by overlooking several categories of Indigenous people who have legitimate, legally-supported claims to being Indigenous, including the large and growing Non-Status First Nation population in the region, and members of Indigenous collectives like NunatuKavut Community Council and the Peskotomuhkati Nation at Skutik; The proposed verification process fails to support Indigenous self-determination over identity because it centers Indigenous identity on official federal government recognition, which is not in keeping with constitutional law, domestic and international human rights, including the United Nations Declaration on the Rights of Indigenous Peoples; The proposed verification process exposes Dalhousie to liability, including in relation to labour, employment, and human rights law; Implementation of the verification criteria is already occurring without appropriate review and legal analysis; The verification process will actively cause harm to Indigenous students, faculty, and staff and compromise current and planned work; and The University already has all the necessary tools to address situations of academic fraud of Indigenous identity, as well as to respond to the distinct concern of privileging individuals whose self-identification as Indigenous rests solely on having distant ancestry over those with legitimate, legally-supported claims to being Indigenous. Thus, no new process is necessary

Big Oil Liability in Canada: Lessons from the US and The Netherlands

The number of nuisance and negligence tort claims in the US against “Big Oil” companies have grown significantly in the last five years. The Netherlands case of Milieudefensie et al v Royal Dutch Shell represents the first major success of such a claim internationally. While the US cases and Milieudefensie demonstrate starkly different approaches as to how to seek accountability from Big Oil for climate change harms, the increasing judicial engagement on these issues may mean the time is right for similar lawsuits in Canada. Three Canadian common law causes of action are examined: nuisance, negligence, and unjust enrichment. Defences and arguments which stem from society’s (and any potential plaintiff’s) acquiescence and authorization to allow the defendants’ conduct may present difficult barriers to success. This paper focuses on these types of defences, and argues that the responsibility of Big Oil for climate change harms should not be completely vitiated even if governments and plaintiffs have acquiesced, authorized, and arguably contributed to our climate crisis. Le nombre de plaintes pour nuisance et négligence déposées aux États-Unis contre les « grandes compagnies pétrolières » a considérablement augmenté au cours des cinq dernières années. L’affaire néerlandaise Milieudefensie et al contre Royal Dutch Shell représente le premier succès majeur d’une telle plainte au niveau international. Si les affaires américaines et Milieudefensie témoignent d’approches très différentes quant à la manière de demander des comptes aux grandes compagnies pétrolières pour les dommages causés par les changements climatiques, l’engagement judiciaire croissant sur ces questions pourrait signifier que le moment est venu d’intenter des actions similaires au Canada. Trois causes d’action en common law canadienne sont examinées : la nuisance, la négligence et l’enrichissement sans cause. Les défenses et les arguments qui découlent de l’acquiescement et de l’autorisation de la société (et de tout plaignant potentiel) à permettre la conduite des défendeurs peuvent présenter des obstacles difficiles à surmonter. Cet article se concentre sur ces types de défenses et soutient que la responsabilité des grandes compagnies pétrolières dans les dommages causés par les changements climatiques ne devrait pas être complètement écartée, même si les gouvernements et les plaignants ont acquiescé, autorisé et sans doute contribué à notre crise climatique

Caesar’s Gambit: Coherence, Justification of Legal Rules, and the Duty Test: Towards an Interactional Theory of Government Liability for Negligence in Disaster Management

This article examines barriers posed by the duty of care test for government liability for negligence in disaster management. It argues that various aspects of the test raise concerns about coherence, legitimacy of judicial decision-making, and ultimately how we justify liability in tort law. In examining the coherence of the duty test through multiple prisms, including through theoretical justifications for tort principles, this article contends that the duty test, in its framing and interpretations, fails to meet the formal and substantive demands of coherence, correctness and legitimacy. Arguing that justificatory theories offer necessary theoretical lenses through which to understand, critique, and reform the normative structure of legal rules such as the duty test, this article offers a different moral theory of government liability for negligence—articulated in the idea of an Interactional Theory—that gives expression to the co-efficient relationship between the formal and substantive dimensions of a legal rule. Cet article examine les obstacles posés par le test du devoir de diligence en matière de responsabilité gouvernementale pour négligence dans la gestion des catastrophes. Il soutient que divers aspects du critère soulèvent des préoccupations quant à la cohérence, à la légitimité de la prise de décision judiciaire et, en fin de compte, à la façon dont nous justifions la responsabilité en droit de la responsabilité civile. En examinant la cohérence du critère de l’obligation à travers de multiples prismes, y compris à travers les justifications théoriques des principes de la responsabilité civile, cet article soutient que le critère de l’obligation, dans sa formulation et ses interprétations, ne répond pas aux exigences formelles et substantielles de cohérence, d’exactitude et de légitimité. Soutenant que les théories justificatives offrent des lentilles théoriques nécessaires pour comprendre, critiquer et réformer la structure normative de règles juridiques telles que le critère de l’obligation, cet article propose une théorie morale différente de la responsabilité gouvernementale pour négligence—articulée dans l’idée d’une théorie interactionnelle—qui exprime la relation co-efficiente entre les dimensions formelles et substantielles d’une règle juridique

Exit, Voice and Disloyalty in Open Casebooks

Despite growing attention to open educational resources in higher education, there is little evidence that the move toward open materials has yet been embraced by Canadian law teachers. In this paper, we make an early attempt to compile the available data on open legal casebooks produced for use in Canadian law schools and we engage with the literature on commons-based peer production to develop a theory explaining why collaborative engagement has been slow to date. We then describe how we think Canadian law teachers can overcome current barriers to collaborative open casebook authorship, using an experimental property law casebook project we are developing to illustrate

Re-imagining the Duty to Consult: Requiring a Substantive Outcome to Further Reconciliation

The Crown has a duty to consult with Indigenous peoples on actions that may adversely affect claimed Indigenous interests that have not yet been established as recognized rights. Currently, the duty to consult remains a procedural obligation that does not require the consent of the Indigenous claimants to move forward. The crux of the duty to consult is to reconcile Crown and Indigenous interests. This paper explores how the duty to consult can better promote reconciliation by requiring a substantive outcome. Requiring a substantive outcome enhances the ability of Indigenous claimants to protect their own interests in the face of impactful state action. This paper illuminates the ongoing limitations of the duty to consult in achieving reconciliation, including, amongst other issues, its inherently procedural nature and the limited negotiating power of Indigenous claimants in the consultation process. Next, alternative conceptions of the duty are discussed. This paper concludes by advocating for an altered framework whereby Indigenous claimants negotiate with the Crown and project proponents through a constitutionally entrenched head of power, rather than relying on the courts to substantiate Indigenous interests within the broader authority of the Crown

Comprehensive Right to Repair: The Fight Against Planned Obsolescence in Canada

The comprehensive right to repair—one that addresses overconsumption and enables a circular economy—is an integral part of climate change policy in Canada. Where it is traditionally approached from an economic perspective, this article presents the right to repair as an instrument of environmental law. This reframing looks to France’s Anti-Waste and Circular Economy Law for structural and substantive elements of such legislation. Further, this article examines previous attempts to legislate the right to repair in Canada and explores how an overarching environmental purpose aids in overcoming political and jurisdictional barriers to its implementation. Ultimately, this article advocates for realization of a comprehensive right to repair through the updating of multiple pieces of existing federal legislation