Contractual and Covenantal Conceptions of Modern Treaty Interpretation

The Aboriginal rights discourse of recent decades has sought to foster negotiation processes and a new wave of treaty-making. Two decisions of the Supreme Court of Canada, Moses and Little Salmon, speak directly to principles of interpretation applicable to modern treaties with Aboriginal communities that differ from those applicable to historical treaties. This paper seeks to show the commonalities on this issue between the positions of the different judgments in the two cases. It also draws out the contract-oriented interpretation methods to which the judges adhere, arguing that some of these methods are not necessarily wrong in principle but should preferably be couched within a different “covenantal” conception of modern treaty interpretation. The paper argues that the contract-oriented discourse present in these first Supreme Court of Canada pronouncements on modern treaty interpretation may risk unforeseen consequences, but these judgments at this point have not yet foreclosed the somewhat reoriented conception of modern treaties as covenants rather than mere contracts

The Economic Characteristics of Indigenous Property Rights: A Canadian Case Study

I. Introduction II. The Nature of Aboriginal Title within the Canadian Judicial Interpretation ... A. Background … B. The Aboriginal Title Test ... C. The Contents of Aboriginal Title ... D. Inherent Limits on Scope of Aboriginal Title ... E. The Security and Insecurity of Aboriginal Title ... F. The Implications of Unsettled Aboriginal Title Claims III. The Property Rights Characteristics of Aboriginal Title ... A. Theoretical Characteristics of Title ... B. The Real Costs of Uncertain Economic Characteristics of Aboriginal Title: Examples of Practical Consequences for Mining Development IV. Why Common Law Judicial Development May Not Work with Aboriginal Property Rights V. Potential Policy Approaches to Further More Economically Functional Indigenous Property Right

Contractual and Covenantal Conceptions of Modern Treaty Interpretation

The Aboriginal rights discourse of recent decades has sought to foster negotiation processes and a new wave of treaty-making. Two decisions of the Supreme Court of Canada, Moses and Little Salmon, speak directly to principles of interpretation applicable to modern treaties with Aboriginal communities that differ from those applicable to historical treaties. This paper seeks to show the commonalities on this issue between the positions of the different judgments in the two cases. It also draws out the contract-oriented interpretation methods to which the judges adhere, arguing that some of these methods are not necessarily wrong in principle but should preferably be couched within a different “covenantal” conception of modern treaty interpretation. The paper argues that the contract-oriented discourse present in these first Supreme Court of Canada pronouncements on modern treaty interpretation may risk unforeseen consequences, but these judgments at this point have not yet foreclosed the somewhat reoriented conception of modern treaties as covenants rather than mere contracts

Review of \u3ci\u3eAboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand.\u3c/i\u3e Edited by Louis A. Knafla and Haijo Westra.

This volume contains a number of intelligent, insightful essays that, as a collection, are meant to offer comparative perspectives on Aboriginal title issues in Canada, Australia, and New Zealand. A relatively limited number of the essays actually engage in direct comparison, although David Yarrow\u27s examination ofthe place ofIndigenous jurisdiction in Australia and Canada, Kent McNeil\u27s scrutiny ofthe source and content ofIndigenous land rights in Australia and Canada, and Louis Knafta\u27s superb introduction are welcome exceptions. Most of the other chapters frame a set of comparisons by engaging with issues in a single jurisdiction, although some are also devoted to specific topics farther removed from the book\u27s main thrust. Many of these are nonetheless interesting, and there are chapters by seasoned academics as well as new writers in the field. Significantly, the book crosses disciplinary boundaries: law, history, anthropology, and other disciplinary approaches are represented, with some chapters addressing the intersections of these disciplines

Review of \u3ci\u3eAboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand.\u3c/i\u3e Edited by Louis A. Knafla and Haijo Westra.

This volume contains a number of intelligent, insightful essays that, as a collection, are meant to offer comparative perspectives on Aboriginal title issues in Canada, Australia, and New Zealand. A relatively limited number of the essays actually engage in direct comparison, although David Yarrow\u27s examination ofthe place ofIndigenous jurisdiction in Australia and Canada, Kent McNeil\u27s scrutiny ofthe source and content ofIndigenous land rights in Australia and Canada, and Louis Knafta\u27s superb introduction are welcome exceptions. Most of the other chapters frame a set of comparisons by engaging with issues in a single jurisdiction, although some are also devoted to specific topics farther removed from the book\u27s main thrust. Many of these are nonetheless interesting, and there are chapters by seasoned academics as well as new writers in the field. Significantly, the book crosses disciplinary boundaries: law, history, anthropology, and other disciplinary approaches are represented, with some chapters addressing the intersections of these disciplines

A Contextualized Account of General Principles of International Law

This Article examines general principles of international law through the innovative means of comparing their use in four different, novel areas of international law—international environmental law, international investment law, international criminal law, and international indigenous rights. By doing so, the Article is able to make the distinct claim that there is no one, single methodology for analysis of general principles of international law. Rather, each area of international law tends to use a methodology suited to its policy objectives and overall characteristics as a specific area of law. The Article characterizes two predominant academic approaches to general principles: a purely “domestic approach” and a “hybrid approach”. The Article argues that international environmental law has tended to use a hybrid approach, whereas international investment law has limited itself to a domestic approach, manifesting immediately the differentiated analysis in different areas. International criminal law and international law on indigenous rights manifest more mixed approaches to analysis, again based on the needs of these different areas. These areas, however, also manifest some criticisms of the use of general principles that have led sometimes to restraints on them in the service of policy needs of different areas of international law. The Article ultimately puts the novel argument that this contextual analysis is not simply descriptively accurate but is a manifestation of an appropriate contextually-differentiated development of international law in light of concerns for its legitimacy in regulating actors other than state entities

Canada\u27s Residential Schools and the Right to Integrity

Apart from characterizations of the residential schools system as imposing cultural genocide, it is possible to understand the system in terms of a legal wrong involving violations of family integrity. The 19th and early 20th centuries saw increasing state intervention in families generally so as to impose compulsory education. However, wrongs in this intervention were recognized, and international law developed toward a right of family integrity that led to changes in non-Indigenous contexts. Evidence from the TRC shows that Canada did not respond as quickly in the Indigenous context, thus permitting an identification of how the residential schools system violated international law at least in its latter decades. Focus on this international law right of family integrity has potential application to other contexts ofinterference with Indigenous families and is thus a helpful legal approach that should be adopted