Aboriginal Title and Private Property

This article explores the relationship between Aboriginal title and private property. In the case of Tsilhqot’in v. British Columbia the Supreme Court of Canada declared that Aboriginal title erased the Crown’s assumed beneficial interest in such lands. The Court was not asked to consider whether private ownership interests were similarly ousted by a declaration of Aboriginal title. This article explores Tsilhqot’in’s unexamined issue and concludes that Aboriginal title could, at times, affect private interests in land and be reconciled with Aboriginal title. This conclusion is based on the Supreme Court’s Constitutional framework which emphasizes proportionality, fairness, reasonableness and reconciliation. Thus, this article argues, in the face of Crown grants to third parties on unextinguished Aboriginal title lands, these lands might be protected by: Indigenous law and/or future treaties, through the core principles underlying Canada’s Constitution

Aboriginal and Treaty Rights and Violence against Women

Violence against Indigenous women is a crisis of national proportions. Unfortunately, Indigenous peoples have been prevented from arguing that Indigenous communities are a constitutional site of activity for dealing with such violence. This article suggests that Aboriginal and treaty rights under section 35 of the Constitution could play a significant role in ensuring that all levels of government are seized with the responsibility for dealing with violence against women. This article explores how section 35 could be reinterpreted in ways that place issues of gender and violence at the heart of its analysis

(Ab)Originalism and Canada’s Constitution

This paper argues that constitutional interpretation should be non-discriminatory. Unfortunately, Canada’s Constitution contains a particularly deep and troubling interpretive inconsistency. This flaw exists in relation to Aboriginal and treaty rights within section 35(1) of the Constitution Act, 1982. Most constitutional rights are interpreted in accordance with a living tree approach. Conversely, Aboriginal peoples’ rights are largely viewed through an originalist lens. This paper explains the differences in these approaches, highlights their adverse effects for Aboriginal peoples, and identifies non-discriminatory alternatives consistent with Canada’s broader constitutional framework

Aboriginal and Treaty Rights and Violence against Women

Violence against Indigenous women is a crisis of national proportions. Unfortunately, Indigenous peoples have been prevented from arguing that Indigenous communities are a constitutional site of activity for dealing with such violence. This article suggests that Aboriginal and treaty rights under section 35 of the Constitution could play a significant role in ensuring that all levels of government are seized with the responsibility for dealing with violence against women. This article explores how section 35 could be reinterpreted in ways that place issues of gender and violence at the heart of its analysis

Sovereignty\u27s Alchemy: An Analysis of Delgamuukw v. British Columbia

In Delgamuukw v. British Columbia, the Supreme Court of Canada issued its long-awaited judgment on the status of Aboriginal title under section 35(1) of the Constitution Act, 1982. The decision was regarded as highly significant because it seemed to fundamentally alter the law of Aboriginal rights. This article suggests that while the case has somewhat positively changed the law to protect Aboriginal title, it has also simultaneously sustained a legal framework that undermines Aboriginal land rights. In particular, the decision\u27s unreflective acceptance of Crown sovereignty places Aboriginal title in a subordinate position relative to other legal rights. This article examines how this result defeats the Court\u27s own requirements for a just settlement with Aboriginal peoples. This review proceeds through exploring the Supreme Court\u27s treatment of Aboriginal pleadings, evidence, content and proof of title, Aboriginal self-government, and the extinguishment of Aboriginal title in the Delgamuukw case. In investigating these issues, this article concludes by illustrating how a more rigorous application of the rule of law to the Crown in its dealings with Aboriginal peoples could generate greater equality and justice for Aboriginal peoples in their relations with the Canadian state

Sovereignty\u27s Alchemy: An Analysis of Delgamuukw v. British Columbia

In Delgamuukw v. British Columbia, the Supreme Court of Canada issued its long-awaited judgment on the status of Aboriginal title under section 35(1) of the Constitution Act, 1982. The decision was regarded as highly significant because it seemed to fundamentally alter the law of Aboriginal rights. This article suggests that while the case has somewhat positively changed the law to protect Aboriginal title, it has also simultaneously sustained a legal framework that undermines Aboriginal land rights. In particular, the decision\u27s unreflective acceptance of Crown sovereignty places Aboriginal title in a subordinate position relative to other legal rights. This article examines how this result defeats the Court\u27s own requirements for a just settlement with Aboriginal peoples. This review proceeds through exploring the Supreme Court\u27s treatment of Aboriginal pleadings, evidence, content and proof of title, Aboriginal self-government, and the extinguishment of Aboriginal title in the Delgamuukw case. In investigating these issues, this article concludes by illustrating how a more rigorous application of the rule of law to the Crown in its dealings with Aboriginal peoples could generate greater equality and justice for Aboriginal peoples in their relations with the Canadian state

A Genealogy of Law: Inherent Sovereignty and First Nations Self-Government

First Nations self-government in Canada has often been regarded as extinguished or delegated from the British Crown or the Canadian federal government. First Nations self-government among the Chippewas of the Nawash Band in southern Ontario has not been extinguished or delegated, but continues to exist as an inherent exercise of community sovereignty. The idea of existing Aboriginal self-government in modern-day Ontario contrasts with many prevailing notions about Native society in Canada today. The inherent and unextinguished nature of self-government among the Nawash Band is demonstrated by examining the events of the author\u27s ancestors and community in their interactions with foreign settlers. The investigation of this history is undertaken from a Native perspective to access and establish an alternative vision of the political and legal status of First Nations self-government. The particular interactions between Native and non-Native societies that establish a continuing, inherent exercise of sovereignty are: the War of 1812; the acceptance of Christianity; the preservation of traditional Native health care, education and language; the entering into of treaties; and the maintenance of self-government under the federal Indian Act through the exercise of statecraft and economic development. The author argues that recounting these interactive experiences from a Native perspective can infuse legal and political discourse with different alternatives and can grant to First Nations people the liberty that they desire to continue to pursue their aspirations according to their collective goals

(Ab)Originalism and Canada’s Constitution

This paper argues that constitutional interpretation should be non-discriminatory. Unfortunately, Canada’s Constitution contains a particularly deep and troubling interpretive inconsistency. This flaw exists in relation to Aboriginal and treaty rights within section 35(1) of the Constitution Act, 1982. Most constitutional rights are interpreted in accordance with a living tree approach. Conversely, Aboriginal peoples’ rights are largely viewed through an originalist lens. This paper explains the differences in these approaches, highlights their adverse effects for Aboriginal peoples, and identifies non-discriminatory alternatives consistent with Canada’s broader constitutional framework