scholarly journals THE HARD CASE OF DEFINING “THE MÉTIS PEOPLE” AND THEIR RIGHTS: A COMMENT ON R. V. POWLEY

2011 ◽  
Vol 12 (1, 2 & 3) ◽  
pp. 2002
Author(s):  
Paul L.A.H. Chartrand
Keyword(s):  
Constitutional Reform ◽  
Aboriginal Peoples ◽  
Treaty Rights ◽  
Hard Case ◽  
Substantive Content ◽  
Aboriginal Law ◽  
Charlottetown Accord

Section 35(2) of the Constitution Act, 1982 refers to “the Métis people” as one of the Aboriginal peoples of Canada whose existing Aboriginal and treaty rights are guaranteed by section 35(1).1 The subsequent First Ministers Conference on Aboriginal Constitutional Reform in the 1980s and the Charlottetown Accord in 1992 proved inadequate to the task of addressing the substantive content of these constitutional provisions. The unenviable task of defining a people and their rights has now fallen to the courts. The challenge facing them is the hard case of Canadian Aboriginal law.

scholarly journals The Constitution’s Peoples: Approaching Community in the Context of Section 35 of the Constitution Act, 1982

2009 ◽  
Vol 54 (1) ◽  
pp. 1-43 ◽  
Author(s):  
Brent Olthuis
Keyword(s):  
Aboriginal Peoples ◽  
Individual Member ◽  
Canadian Society ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Aboriginal Community ◽  
Legal Principles ◽  
Unilateral Declaration ◽  
Aboriginal Law ◽  
Interpretive Process

Abstract Modern negotiations between the Crown (or private parties) and Canada’s Aboriginal peoples are largely based on the legal principles articulated in major court decisions. Yet those decisions have not yet confronted a fundamental question: how, in the first instance, do we determine which groups can lay claim to the Aboriginal and treaty rights “recognized and affirmed” by section 35 of the Constitution Act, 1982? The author argues that this question ought to form the theoretical cornerstone of the doctrine of Aboriginal and treaty rights. It is also of critical significance to the continuing process of reconciliation between the Aboriginal and non-Aboriginal elements of Canadian society. The interlocutors in this process must be identifiable. The community recognition needed to give effect to section 35’s inherently group-centred approach cannot be purely subjective or purely objective in nature. Neither a process of unilateral declaration nor one of pure observation can accurately identify the communities at issue under section 35. Rather, the inquiry requires an exercise of interpretation. To this end, the author proposes guidelines to focus and assist the interpretive process. This analysis ultimately entails a reconsideration of some of the prevailing orthodoxies in Aboriginal law jurisprudence, including the “test” for determining the existence of Aboriginal rights (from R. v. Van der Peet) and the notion that an individual member of a modern, rights-holding, Aboriginal community must prove an ancestral or genealogical link to a member of the group at some earlier time (from R. v. Powley).

Recent Developments in Canadian Aboriginal Law: Overview of Case Law and of Certain Principles of Aboriginal Law

2008 ◽  
Vol 10 (3) ◽  
pp. 319-350
Author(s):  
Patricia Ochman
Keyword(s):  
Supreme Court ◽  
Indigenous Peoples ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Key Concepts ◽  
Recent Developments ◽  
Aboriginal Law

AbstractThe author reviews the most recent judgments rendered by the Supreme Court of Canada and certain provincial courts, in order to provide an update in the sphere of Aboriginal law practice in Canada, destined mainly for foreign lawyers and academics. Throughout the review of those recent judgments, the author provides an overview of certain key principles and concepts of Canadian Aboriginal law. Besides providing an overview of recent judgments in the sphere of Aboriginal law, the author seeks to illustrate how meaningful the protection and recognition of Aboriginal rights and treaty rights are in practice, through the overview of key concepts and principles of Canadian Aboriginal law and how they were recently interpreted by Canadian courts. The author briefly addresses Canada's vote against the adoption of the U.N. Declaration on the Rights of Indigenous Peoples.

The Duty to Consult and Accommodate Aboriginal Peoples: A Primer for Ontario Surveyors Working in Resources Development

GEOMATICA ◽  
2014 ◽  
Vol 68 (1) ◽  
pp. 15-24 ◽  
Author(s):  
H.W. Roger Townshend ◽  
Michael McClurg
Keyword(s):  
Resource Development ◽  
Aboriginal Peoples ◽  
Resource Extraction ◽  
Government Decision ◽  
The Common ◽  
The Government ◽  
Aboriginal Law ◽  
Natural Resource Development ◽  
Common Understanding

Aboriginal law has developed to require Aboriginal peoples to be “consulted and accommodated” if their rights may be impacted by a government decision, including a government permit or approval of a project of a private proponent. For example, hunting rights often exist throughout a First Nation’s treaty or traditional territory (i.e. far beyond the limits of reserves), and the duty to consult and accommodate can be triggered by mining and other resource development. Contrary to the common understanding of some of those unfamiliar with this area of law, this duty applies not only to activities undertaken under federal authorization, but also to those under provincial authorization. The Crown’s “duty to consult and accommodate” Aboriginal peoples has become a central theme in the discussion of natural resource development in Canada. In response to various decisions of Canadian courts, the Government of Ontario significantly overhauled its Mining Act in 2009 to provide for some consultation with Aboriginal communities. Those changes came in to effect in the spring of 2013. This paper will describe the constitutional duty to consult as it has been described and elaborated on by courts in Canada and some of the implications it has for resource extraction in Ontario. It will then undertake a case study discussing Ontario’s attempt to respond to its duty to consult by amending the Mining Act regime. Finally, the paper will consider the flaws in the Mining Act and the reasons that exploration companies and surveyors working for them should be prudent and pro-active when undertaking intrusive activities in the traditional territories of Aboriginal peoples.

scholarly journals Who Are the Metis People in Section 35(2)

1969 ◽  
pp. 351 ◽  
Author(s):  
Catherine Bell
Keyword(s):  
Homogeneous Group ◽  
Aboriginal Peoples ◽  
Federal Programs ◽  
Treaty Rights ◽  
Aboriginal Rights

Section 35 of the Constitution Act, 1982 recognizes the aboriginal and treaty rights of the aboriginal peoples. Section 35(2) defines "the Aboriginal peoples of Canada" as Indian, Inuit and Metis peoples. Although s. 35 may appear straightforward, the author points out its ambiguity. This article attempts to clarify it. The ambiguity stems from the fact that the section does not define the term "Metis" nor does it say whether the "Metis" have existing aboriginal rights recognized in s. 35(1). These questions arise because self-identifying Metis are not a homogeneous group that lend themselves to easy definition. Moreover they have traditionally been excluded from federal programs benefiting Indian peoples. The author examines the difficulties involved in defining the term 'Metis ' and analyzes some of the frameworks that have been suggested by various groups, including Metis organizations. She concludes that the term must be defined according to logical and political considerations in addition to self-identification based on racial, cultural and historical criteria.

scholarly journals Thin or Thick Inclusiveness? The Constitutional Duty to Consult and Accommodate First Nations in Canada

2019 ◽  
Vol 34 (1) ◽  
pp. 149-175
Author(s):  
Ian James Urquhart
Keyword(s):  
First Nations ◽  
Oil Sands ◽  
Aboriginal Peoples ◽  
Resource Exploitation ◽  
Judicial Interpretation ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
The Status ◽  
Natural Resource Exploitation ◽  
General Thrust

What has the addition of aboriginal rights to the Canadian constitution in 1982 meant for the place of First Nations’ interests in the Canadian constitutional order? This article considers this question in the context of natural resource exploitation – specifically, the exploitation of the oil or tar sands in Alberta. It details some of the leading jurisprudence surrounding Section 35 of the Constitution Act 1982, the section of the Constitution recognizing existing aboriginal and treaty rights. Arguably, Section 35 represented an important effort to improve the status of aboriginal peoples in Canada, to enhance the extent to which Canada included and respected the values and interests of First Nations. The article specifically considers how the judicial interpretation of the Crown’s duty to consult and accommodate aboriginal peoples is related to the theme of inclusivity. It argues that the general thrust of judicial interpretation has promoted a thin, or procedural, version of inclusiveness rather than a substantive, or thicker, one. Such a thicker version of inclusiveness would be one in which the pace of oil sands exploitation is moderated or halted in order to allow First Nations to engage in traditional activities connected intimately with aboriginal and treaty rights.

Law, Culture and Decolonisation: The Perspectives of Aboriginal Elders on Family Violence in Australia

2021 ◽  
pp. 096466392110461
Author(s):  
Harry Blagg ◽  
Victoria Hovane ◽  
Tamara Tulich ◽  
Donella Raye ◽  
Suzie May ◽  
...  
Keyword(s):  
Family Violence ◽  
Theory And Practice ◽  
Aboriginal Peoples ◽  
Public Attention ◽  
Systemic Racism ◽  
Aboriginal Women ◽  
Carceral Feminism ◽  
Aboriginal Law ◽  
Traditional Patterns ◽  
Aboriginal Elders

Family violence within Aboriginal communities continues to attract considerable scholarly, governmental and public attention in Australia. While rates of victimization are significantly higher than non-Aboriginal rates, Aboriginal women remain suspicious of the ‘carceral feminism’ remedy, arguing that family violence is a legacy of colonialism, systemic racism, and the intergenerational impacts of trauma, requiring its own distinctive suite of responses, ‘uncoupled’ from the dominant feminist narrative of gender inequality, coercive control and patriarchy. We conclude that achieving meaningful reductions in family violence hinges on a decolonizing process that shifts power from settler to Aboriginal structures. Aboriginal peoples are increasingly advocating for strengths-based and community-led solutions that are culturally safe, involve Aboriginal justice models, and recognises the salience of Aboriginal Law and Culture. This paper is based on qualitative research in six locations in northern Australia where traditional patterns of Aboriginal Law and Culture are robust Employing a decolonising methodology, we explore the views of Elders in these communities regarding the existing role of Law and Culture, their criticisms of settler law, and their ambitions for a greater degree of partnership between mainstream and Aboriginal law. The paper advances a number of ideas, based on these discussions, that might facilitate a paradigm shift in theory and practice regarding intervention in family violence.

scholarly journals FROM “INDIANS” TO “FIRST NATIONS”: CHANGING ANGLO-CANADIAN PERCEPTIONS OF THE NORTH AMERICAN INDIAN IN THE TWENTIETH CENTURY*

2011 ◽  
Vol 13 ◽  
pp. 2005
Author(s):  
Smith B. Donald
Keyword(s):  
Twentieth Century ◽  
First Nations ◽  
Aboriginal People ◽  
Aboriginal Peoples ◽  
Treaty Rights ◽  
The North ◽  
Academic Conference ◽  
Late Twentieth ◽  
Aboriginal Issues ◽  
Definition Of

A look at three university-organized conferences, the first in 1939, the second in 1966, and the most recent in 1997, reveals an increasing awareness of Aboriginal issues — particularly in the 1990s. From the mid- to the late twentieth century, Indians, now generally known as the First Nations, moved from the periphery into the centre of academic interest. The entrance of Aboriginal people, “the third solitude,” has altered completely the nature of Canada’s unity debate. Section 35 of the Constitution Act, 19821 affirms the existence of Aboriginal and treaty rights. The definition of “Aboriginal peoples of Canada” in the new constitution of 1982 now includes the Métis, as well as the First Nations and Inuit. Today, no academic conference in Canada on federalism, identities, and nationalism, can avoid discussion of Aboriginal Canada.

Constitutional Paralysis: Why Canadian Constitutional Initiatives Are Doomed to Fail

1994 ◽  
Vol 27 (4) ◽  
pp. 747-771 ◽  
Author(s):  
Michael Lusztig
Keyword(s):  
Empirical Support ◽  
Constitutional Reform ◽  
Theoretical Argument ◽  
Divided Societies ◽  
Canadian Context ◽  
Elite Level ◽  
The Creation ◽  
Charlottetown Accord ◽  
Constitution Making

Abstract. The primary lesson to be learned from the failed Charlottetown Accord is that substantive constitutional reform in Canada is not possible, and will not be for some time. This claim is structurally grounded—a reflection of inherent limitations to successful constitutional negotiations. Specifically, it contends that the requirement of mass input/legitimization of constitutional bargaining in deeply divided societies is incompatible with successful constitution making. There are two reasons for this conclusion. First, mass legitimization serves to undermine effective elite accommodation. The degree of compromise necessary to forge a constitutional agreement at the elite level among different societal groups alienates too many mass supporters of each group. As a result, elites cannot deliver the support of their constitutional constituents. Second, constitution making, by virtue of providing certain groups with almost perpetual special privileges, provides an incentive for groups to seek constitutional status. Mass input into the constitutional process lowers the costs associated with seeking constitutional status, thereby facilitating the creation of new constitutional orientations. In this article, a theoretical argument about the incompatibility of consociational constitutionalism and mass input/legitimization is developed. This argument applies to the Canadian context, detailing the prevailing “mega-constitutional” orientations (MCOs) in Canada, emphasizing their inherent irreconcilability. Based on evidence from the Charlottetown referendum campaign, empirical support is provided for the argument developed. Finally, the conclusion summarizes the findings and forecasts failure for constitutional initiatives, in Canada and elsewhere, where consociational constitutionalism occurs in tandem with the requirement of mass input/legitimization.Résumé. La première leçon à tirer de l'échec de l'Accord de Charlottetown, c'est qu'une réforme constitutionnelle en profondeur n'est pas possible, et ce pour un avenir prévisible. Cette prémisse s'appuie sur des éléments structured, reflétant des limites inhérentes aux négotiations constitutionnelles. Plus précisément, cela présume que l'exigence de légitimation par les masses du marchandage constitutionnel dans des sociétés profondément divisées représente un obstacle majeur pour le succès des négotiations. On invoquera deux motifs pour justifier cette conclusion. D'abord, la légitimation populaire contribue à empêcher les accommodements entre les élites. L'ampleur des compromis nécessaires à l'émergence d'un accord au niveau des élites entre différents groupes sociaux aliène trop de citoyens dans chacun des groupes. Conséquemment, les élites ne peuvent garantir l'appui de leurs mandants. En deuxième lieu, le bricolage constitutionnel, qui procure à certains groupes des privilèges sociaux perpétuels, encourage les groupes à rechercher un statut constitutionnel. La participation des masses au processus diminue les coûts associés à la quête de statut constitutionnel, facilitant ainsi la création de nouvelles orientations constitutionnelles. Cet article propose une argumentation théorique à propos de l'incompatibilité entre le constitutionnalisme consociationnel et la légitimation par la participation populaire. La thèse est appliquée au cas canadien, approfondissant les orientations macro-constitutionnelles dominantes ou pas, et en en faisant ressortir l'irréconciliabilité. En s'appuyant sur l'expérience référendaire d'octobre 1992, l'article étoffe ensuite concrètement l'argumentation. Par-delà le résumé des principaux résultats, la conclusion prédit l'àchec des initiatives constitutionnelles, au Canada et ailleurs, partout où le constitutionnalisme consociationnel sera accompagné par l'exigence d'une légitimation par la participation populaire.

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