An Empty Shell of a Treaty Promise: R. v. Marshall and the Rights of the Non-Status Indians

One of the difficult issues presented by R. v. Marshall is that of who is a Mi\u27kmaq person, or more generally who is entitled to claim to be a beneficiary of the Treaties of 1760-61. This paper examines a number of possible approaches to this matter, including ones based on residence (on or off reserve), descent and the terms of the Indian Act. It notes the deficiencies of existing tests and of Canadian case law that has addressed Aboriginal identity in other contexts. It concludes by noting that the negotiations which must follow in the wake of Marshall present the opportunity for a new, good faith dialogue to establish the rules for ascertaining First Nations membership

Beyond Blood: Rethinking Aboriginal Identity and Belonging

The traditional Aboriginal Nations in Canada, like the Mi\u27kmaq, Mohawk, or Maliseet, have been divided into multiple Indian bands. Their vast traditional territories have been taken up for settlement and the little land that remains in their possession is concentrated in tiny reserves. Similarly, traditional Aboriginal identities have been divided into so many legal and political units, that even families can be divided along these same lines. Many Aboriginal people now identify as status and non-status Indians, with further sub-categories like 6(1) and 6(2) status Indians, or original members and restored members. Single communities can be bitterly divided along these lines and attempts of reasserting traditional identities often incorporate these same divisions. This thesis looks at the long history of government interference with the identities of Aboriginal peoples and their communities and how that continued interference has resulted in divided communities, lengthy litigation and bitter politics. While Canada has officially rejected assimilation as a goal, the antiquated \u27Indian Act\u27 still imposes Indian identities upon Aboriginal peoples and excludes large groups of Aboriginal people. This issue is legally, culturally, and politically sensitive and solutions are often seen as too controversial to effect much-needed change. My contributions to this issue can be categorised into four main arguments: (1) the preservation of Aboriginal culture identity is not only a worthwhile endeavour, but is a necessary part of ensuring that Aboriginal peoples have access to the good life, (2) Aboriginal Nations have the right to determine their own identities (citizenship criteria), however this right is limited by the rights of others, including the right of individual Aboriginal people to belong, (3) the exclusion of some individuals, like non-status Indians for example, is currently based on discriminatory characteristics like blood quantum/descent, which do not reflect cultural identity, and (4) if band membership and self-government citizenship codes are based on these same discriminatory characteristics, then neither offers solutions for the future, but merely perpetuate the status quo. The solutions that I offer are based on the reinforcement of relationships between individuals, families, communities, and Nations, versus the sole reliance on singular identity markers

In the Path of our Ancestors: The Aboriginal Right to Cross the Canada-United States Border

In this thesis, I will argue that the Aboriginal peoples whose traditional territories straddle the Canada - United States border have the right to pass and repass the border freely. With this right comes the ability to live and/or work in either country without having to apply for permission each time with Immigration officials. I have suggested that instead of litigating these rights, the governments of both Canada and the United States should commence tri-partite discussions on how best to accommodate these rights, both on an interim basis and permanently through legislation. One of the measures that I have suggested is a form of identification that indicates the individual holders of Aboriginal and Treaty rights to pass the border freely. The honor of the Crown demands that fair treatment be afforded to the Aboriginal peoples on this Continent called Turtle Island by its First Peoples. The Crown can not now in good faith refuse to recognize the very rights it promised to uphold so that they could settle this country for themselves. The Aboriginal and Treaty rights with regard to border passage already exist, and it is time the Crown worked in partnership with Aboriginal people to facilitate these rights, instead of rely on litigation

Stretched Beyond Human Limits: Death By Poverty in First Nations

Aboriginal policymakers in Canada have been historically based on the objective of assimilating the Indigenous population. There has been recent movement to create policies that support First Nations’ self-governance. However, the Indian Act and its related policies have not been amended to reflect this change. Thus federal policymakers now hover between the two conflicting objectives. One result is chronic poverty in First Nations, a worsening problem that has stymied federal policymakers-makers. Historiquement, les décideurs politiques autochtones au Canada ont eu pour objectif d’assimiler la population autochtone. Par ailleurs, on a récemment pu observer un mouvement visant à créer des politiques soutenant l'autonomie gouvernementale des Premières Nations. Cependant, la Loi sur les Indiens et les politiques connexes n'ont pas été modifiées pour tenir compte de cette évolution. Les décideurs politiques fédéraux sont à présent tiraillés entre ces deux objectifs contradictoires. L'un des résultats est la pauvreté chronique au sein des Premières Nations, dont l’aggravation laisse les décideurs fédéraux impuissants

Equality Delayed is Equality Denied for Indigenous Women

Ce texte se veut une courte histoire du sexisme présent dans la législation canadienne qui touche le peuple autochtone dans la Loi des Indiens. Depuis son élection en 1876, en dépit des nombreux amendements qui ont suivi, les femmes autochtones n’ont jamais été reconnues comme telles. Elles furent traitées comme citoyennes de seconde classe, moins que des parents, encore moins comme Indiennes. Les auteures sont d’avis que cette loi discriminatoire a grandement contribué au sérieux problème des femmes autochtones perdues et assassinées au Canada. Cet article demande au Gouvernement de cesser ses sursis et de finalement agir vers un changement

Fostering Equity and Diversity in the Nova Scotia Legal Profession

The Province of Nova Scotia has, for many years, attempted, through a variety of means, to address issues of diversity and affirmative action. However, despite the lessons of history there are still those who question the need for programs and policies that promote, encourage and enforce equality. Even though significant advances have been made on many fronts Nova Scotia continues to struggle with issues of inequality. As with many problems faced by society acknowledging the existence of the problem is the first step towards developing solutions

Franchises lost and gained: post-coloniality and the development of women’s rights in Canada

The Canadian constitution is to some extent characterised by its focus on equality, and in particular gender equality. This development of women’s rights in Canada and the greater engagement of women as political actors is often presented as a steady linear process, moving forwards from post-enlightenment modernity. This article seeks to disturb this ‘discourse of the continuous,’ by using an analysis of the pre-confederation history of suffrage in Canada to both refute a simplistic linear view of women’s rights development and to argue for recognition of the Indigenous contribution to the history of women’s rights in Canada. The gain of franchise and suffrage movements in Canada in the late nineteenth and early twentieth century are, rightly, the focus of considerable study (Pauker 2015), This article takes an alternative perspective. Instead, it examines the exercise of earlier franchises in pre-confederation Canada. In particular it analyses why franchise was exercised more widely in Lower Canada and relates this to the context of the removal of franchises from women prior to confederation

Stimulating a Canadian narrative for climate

ABSTRACT: This perspective documents current thinking around climate actions in Canada by synthesizing scholarly proposals made by Sustainable Canada Dialogues (SCD), an informal network of scholars from all 10 provinces, and by reviewing responses from civil society representatives to the scholars' proposals. Motivated by Canada's recent history of repeatedly missing its emissions reduction targets and failing to produce a coherent plan to address climate change, SCD mobilized more than 60 scholars to identify possible pathways towards a low-carbon economy and sustainable society and invited civil society to comment on the proposed solutions. This perspective illustrates a range of Canadian ideas coming from many sectors of society and a wealth of existing inspiring initiatives. Solutions discussed include climate change governance, low-carbon transition, energy production, and consumption. This process of knowledge synthesis/creation is novel and important because it provides a working model for making connections across academic fields as well as between academia and civil society. The process produces a holistic set of insights and recommendations for climate change actions and a unique model of engagement. The different voices reported here enrich the scope of possible solutions, showing that Canada is brimming with ideas, possibilities, and the will to act