Delegation, Deference and Difference: In Search of a Principled Approach to Implementing and Administering Aboriginal Rights

In 2017, the Supreme Court of Canada (SCC) decided two duty to consult cases, heard together: Clyde River (Hamlet) v. Petroleum Geo-Services Inc. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (“the 2017 cases”). Within the issue of whether the duty to consult had been satisfied, key points of contention focused on who is responsible for discharging the duty to consult Indigenous Peoples, including assessing the adequacy of the consultation. The cases presented the particular situation of a regulatory agency (the National Energy Board or NEB) that had final approval authority, without the involvement of the Crown “proper” (understood as a minister of the Crown or cabinet). In other words, can the duty be satisfied without the Crown participating in the process and assessing its adequacy? The Court’s answer: “While the Crown always owes the duty to consult, regulatory processes can partially or completely fulfill this duty.” A second, equally contentious issue was about what is required of a regulatory agency in assessing the obligation to consult when this obligation rests with it. Embedded within this issue is the question: what is the degree of specificity or formality with which the existing or claimed Aboriginal or treaty rights must be treated for the duty to assess adequacy to be discharged

I smooth\u27d him up with fair words : Intersocietal law, from fur trade to treaty

History is an essential part of aboriginal law. The two disciplines, however, may produce incompatible narratives of indigenous-settler relations. In addition, indigenous legal traditions and the fur trade in the old North West have been under-represented in Canadian legal history, a gap that demotes over two centuries of working relationships to a brief preface to the numbered treaties and confederation. This dissertation seeks to bring under-observed normative relations between indigenous and European traders into Canadian legal history. It further considers the relevance of fur trade law to the jurisprudence on aboriginal treaty rights and the significance of history in overcoming historical injustice in settler states. Using an ethnohistorical methodology, three case studies are presented on the law of the fur trade followed by a chapter connecting the interpretation of the intersocietal law of the fur trade to the interpretation of treaties in history and law. Focussing the fur trade as conducted by the Hudson\u27s Bay Company and the North West Company, the case studies investigate the normative expectations of the indigenous and company traders around particular aspects of the trading relationship. These aspects include institutions of leadership, the formation and maintenance of friendships, negotiations of trading post location, and the exchange of provisions and support in times of famine and illness. In these case studies, the intersocietal law of the trade is interpreted as incomplete and often laden with misunderstanding. It involved competition between normative systems and harboured persistent disagreements, even while sufficient shared obligations and occasional shared meanings emerged to support robust working relationships. This interpretation of the intersocietal law of the fur trade demands a shift in the characterization of treaties in history and law. I argue that to better serve the aims of justice and reconciliation, both the classification of treaties in history and the interpretive focus of the treaty rights jurisprudence must change to allow the complexity of the historical relationship - including the disagreements and injustices buried in simpler narratives - to emerge

"""I smooth'd him up with fair words"": Intersocietal law, from fur trade to treaty"

History is an essential part of aboriginal law. The two disciplines, however, may produce incompatible narratives of indigenous-settler relations. In addition, indigenous legal traditions and the fur trade in the old North West have been under-represented in Canadian legal history, a gap that demotes over two centuries of working relationships to a brief preface to the numbered treaties and confederation. This dissertation seeks to bring under-observed normative relations between indigenous and European traders into Canadian legal history. It further considers the relevance of fur trade law to the jurisprudence on aboriginal treaty rights and the significance of history in overcoming historical injustice in settler states. Using an ethnohistorical methodology, three case studies are presented on the law of the fur trade followed by a chapter connecting the interpretation of the intersocietal law of the fur trade to the interpretation of treaties in history and law. Focussing the fur trade as conducted by the Hudson's Bay Company and the North West Company, the case studies investigate the normative expectations of the indigenous and company traders around particular aspects of the trading relationship. These aspects include institutions of leadership, the formation and maintenance of friendships, negotiations of trading post location, and the exchange of provisions and support in times of famine and illness. In these case studies, the intersocietal law of the trade is interpreted as incomplete and often laden with misunderstanding. It involved competition between normative systems and harboured persistent disagreements, even while sufficient shared obligations and occasional shared meanings emerged to support robust working relationships. This interpretation of the intersocietal law of the fur trade demands a shift in the characterization of treaties in history and law. I argue that to better serve the aims of justice and reconciliation, both the classification of treaties in history and the interpretive focus of the treaty rights jurisprudence must change to allow the complexity of the historical relationship - including the disagreements and injustices buried in simpler narratives - to emerge

Delegation, Deference and Difference: In Search of a Principled Approach to Implementing and Administering Aboriginal Rights

In 2017, the Supreme Court of Canada (SCC) decided two duty to consult cases, heard together: Clyde River (Hamlet) v. Petroleum Geo-Services Inc. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (“the 2017 cases”). Within the issue of whether the duty to consult had been satisfied, key points of contention focused on who is responsible for discharging the duty to consult Indigenous Peoples, including assessing the adequacy of the consultation. The cases presented the particular situation of a regulatory agency (the National Energy Board or NEB) that had final approval authority, without the involvement of the Crown “proper” (understood as a minister of the Crown or cabinet). In other words, can the duty be satisfied without the Crown participating in the process and assessing its adequacy? The Court’s answer: “While the Crown always owes the duty to consult, regulatory processes can partially or completely fulfill this duty.” A second, equally contentious issue was about what is required of a regulatory agency in assessing the obligation to consult when this obligation rests with it. Embedded within this issue is the question: what is the degree of specificity or formality with which the existing or claimed Aboriginal or treaty rights must be treated for the duty to assess adequacy to be discharged

I smooth\u27d him up with fair words : Intersocietal law, from fur trade to treaty

History is an essential part of aboriginal law. The two disciplines, however, may produce incompatible narratives of indigenous-settler relations. In addition, indigenous legal traditions and the fur trade in the old North West have been under-represented in Canadian legal history, a gap that demotes over two centuries of working relationships to a brief preface to the numbered treaties and confederation. This dissertation seeks to bring under-observed normative relations between indigenous and European traders into Canadian legal history. It further considers the relevance of fur trade law to the jurisprudence on aboriginal treaty rights and the significance of history in overcoming historical injustice in settler states. Using an ethnohistorical methodology, three case studies are presented on the law of the fur trade followed by a chapter connecting the interpretation of the intersocietal law of the fur trade to the interpretation of treaties in history and law. Focussing the fur trade as conducted by the Hudson\u27s Bay Company and the North West Company, the case studies investigate the normative expectations of the indigenous and company traders around particular aspects of the trading relationship. These aspects include institutions of leadership, the formation and maintenance of friendships, negotiations of trading post location, and the exchange of provisions and support in times of famine and illness. In these case studies, the intersocietal law of the trade is interpreted as incomplete and often laden with misunderstanding. It involved competition between normative systems and harboured persistent disagreements, even while sufficient shared obligations and occasional shared meanings emerged to support robust working relationships. This interpretation of the intersocietal law of the fur trade demands a shift in the characterization of treaties in history and law. I argue that to better serve the aims of justice and reconciliation, both the classification of treaties in history and the interpretive focus of the treaty rights jurisprudence must change to allow the complexity of the historical relationship - including the disagreements and injustices buried in simpler narratives - to emerge

Realizing Aboriginal Administrative Law

Situated near the beginning of this textbook, this chapter introduces an area of administra-tive law that is both distinctive and that we aspire to have embedded throughout this book. Aboriginal administrative law is defined by intersections and in particular the intersection of three areas of Canadian public law: administrative law, constitutional law, and Aboriginal law. These areas, in turn, intersect with Indigenous law, which encompasses multiple Indigenous traditions of public law-making, legality, fairness, and accountability. None of these areas of law or traditions exist in isolation from each other, and all continue to evolve both separately and in relation to each other. Our task is not to define the boundaries of the field as much as to gather the issues and areas that can benefit from being understood in conversation with each other

Realizing Aboriginal Administrative Law

Administrative Law in Context, 4th Edition examines the latest developments in the field of administrative law, relating to the important and contemporary contexts that shape legal ideas. This authoritative casebook provides a collaborative analysis of key principles and seminal cases by leveraging the voices of Canada’s leading scholars and practitioners.The fourth edition includes a practical and in-depth analysis of the Supreme Court of Canada’s 2019 Vavilov trilogy. Bell, NFL, and Vavilov’s seminal decisions generated fundamental changes to the appellate standards of review. This edition also includes updated chapter questions, discussions, commentary, and practice tips.This text employs an experiential teaching approach to the Canadian doctrine of administrative law, combining theory and applied learning to provide a text that students can take with them, from the classroom to the courtroom

Realizing Administrative Aboriginal Law

Administrative Law in Context, 3rd Edition roots its approach to administrative law in the important contexts that shape legal ideas and doctrines in this field. It offerss a fresh examination of key principles and cases by leveraging the distinct voices of leading scholars and instructors from across Canada. This detailed, collaborative analysis gives students a better sense of how administrative boards and tribunals work in practice. To offer a more comprehensive understanding of subject matter, resources like practice tips, checklists, and a companion website have also been included in the text. This combination of theory and applied learning has resulted in a highly effective teaching tool that students can take from the classroom into practice

Realizing Administrative Aboriginal Law

Administrative Law in Context, 3rd Edition roots its approach to administrative law in the important contexts that shape legal ideas and doctrines in this field. It offerss a fresh examination of key principles and cases by leveraging the distinct voices of leading scholars and instructors from across Canada. This detailed, collaborative analysis gives students a better sense of how administrative boards and tribunals work in practice. To offer a more comprehensive understanding of subject matter, resources like practice tips, checklists, and a companion website have also been included in the text. This combination of theory and applied learning has resulted in a highly effective teaching tool that students can take from the classroom into practice