De facto and de jure Crown Sovereignty: Reconciliation and Legitimation at the Supreme Court of Canada Ryan

This paper offers a short story of Crown sovereignty at the Supreme Court Canada in order to shed light on questions the Court has raised about the legitimacy of Crown sovereignty over territory claimed by First Nations. In skeletal form, the story is simple. The Crown — first Imperial British and later Canadian federal and provincial — asserted sovereignty over what is now Canadian territory, and Canadian courts (and the Judicial Committee of the Privy Council) accepted those assertions without question. Yet the Supreme Court of Canada has lately qualified Crown sovereignty in striking ways, perhaps most notably in speaking of “de facto Crown sovereignty” in reasons released in 2004.The purpose behind this qualification, in line with the Court’s Aboriginal rights and title cases since Calder v British Columbia (Attorney General), seems to be to encourage the Crown to negotiate modern treaties and settle outstandingAboriginal rights and title claims in order to perfect or legitimate Crown sovereignty. As Crown negotiations with First Nations stalled, however, the Court proceeded to develop its own framework for the procedural legitimation of Crown sovereignty, i.e. a framework of procedural safeguards designed to weed out “bad” exercises of Crown sovereignty from legitimate ones.

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L'étanchéité de l'A.A.N.B. est-elle menacée?

Les Cahiers de droit ◽

10.7202/042170ar ◽

2005 ◽

Vol 18 (2-3) ◽

pp. 383-396

Author(s):

Jean-Charles Bonenfant

Keyword(s):

North America ◽

Supreme Court ◽

Supreme Court Of Canada ◽

German Federal Republic ◽

Privy Council ◽

Stare Decisis ◽

British North America ◽

The Supreme Court ◽

Distribution Of Powers ◽

Canada Limited

In his opinion in John A. MacDonald, Railquip Enterprises Ltd and Vapor Canada Limited, Chief Justice Laskin commented that in the future it might be necessary to reconsider the 1937 Labour Conventions Decision which established the « watertight compartments » doctrine applicable to the implementation of treaties concluded by Canada. According to this doctrine as it was set forth by the Privy Council, the fact that Canada can enter into treaties with other countries does not mean that the Federal Parliament of Canada can legislate contrary to the distribution of powers provided for by sections 91 and 92 of the British North America Act. In his article, Professor Bonenfant recalls the criticism which the Privy Council evoked, particularly that which appeared in the June, 1937, issue of The Canadian Bar Review. If the Supreme Court of Canada wishes to revise the decision of the Privy Council, it will not be hampered by the rule of stare decisis. But, Professor Bonenfant writes, whatever the judicial solution may be, it would probably be better to follow the example of other countries, particularly the example provided by article 32 of the Constitution of the German Federal Republic, and seek a political solution. In this domain as in others, if federalism has failed in Canada, he writes that it is perhaps because the interpretation of Canada's Constitution has been left to the intellectual virtuosity of the members of the Privy Council and of the Supreme Court.

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Commentary on Papers Delivered on the Supreme Court of Canada and the Law of Obligations

Alberta Law Review ◽

10.29173/alr2337 ◽

1969 ◽

pp. 160

Author(s):

D. C. McDonald

Keyword(s):

Supreme Court ◽

Civil Code ◽

Supreme Court Of Canada ◽

Privy Council ◽

Appellate Courts ◽

Trial Judge ◽

The Supreme Court ◽

The Law ◽

The Cost

The speaker noted that the Hon. Emmett Hall, for whom he was substituting, had had experience as trial judge, quality he considers desirable in the appellate courts. He then commented on some of the very early cases of the S.C.C., before proceeding to discussion of Dean Friaman's paper. The speaker discussed aspects in the development of the law relating to trespassers and occupier's liability. He was of the opinion that the S.C.C. was not as mechanistic in its approach to the law of tort as Dean Fridman thought it to be. In commenting on Dr. Beaudoin's presentation, Mr. Justice McDonald noted that the blame for the lack of weight given to French decisions in matters concerning the Quebec Civil Code droit de delits should not be attributed to the S.C.C. but to the Privy Council. In concluding, His Lordship observed that the process of applying for have to appeal to the S.C.C. deserves further study, since the present requirement that the Court dispose of applications for leave which are not accompanied by an oral submis sion increases the cost of appeal particularly for Western cases.

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Canada: From Privy Council to Supreme Court

The History and Growth of Judicial Review, Volume 1 ◽

10.1093/oso/9780190075774.003.0006 ◽

2021 ◽

pp. 183-228

Author(s):

Steven Gow Calabresi

Keyword(s):

Supreme Court ◽

Judicial Review ◽

Separation Of Powers ◽

Direct Result ◽

Supreme Court Of Canada ◽

Privy Council ◽

Canadian History ◽

British North America ◽

Court Of Appeals ◽

The Supreme Court

This chapter assesses the emergence of judicial review in Canada. Canadian judicial review emerged as a direct result of federalism and separation of powers umpiring by the Judicial Committee of the Privy Council (JCPC), which was Canada’s highest court from the adoption of the British North America Act in 1867 until Canada ended appeals to the JCPC in 1949. There was also, as Ran Hirschl would argue, an element of elite hegemonic entrenchment by imperial British colonial elites in the retention of the JCPC as the highest court of appeals in Canada from the creation of the Supreme Court of Canada in 1875 until Canada abolished appeals to the JCPC in 1949. Some Canadian elites tried and failed to end JCPC judicial review in Canadian cases in 1875. Canadian judicial review from 1867 to 1982 was exclusively concerned with federalism and separation of powers judicial umpiring because Canada had no constitutional Bill of Rights until 1982. There are thus two founding moments in the judicial review of legislation in Canadian history: firstly, the period from 1867 to 1982 when Canadian federalism and separation of powers law took shape as a result of federalism and separation of powers umpiring; and, secondly, the period from 1982 to the present, when the Supreme Court of Canada began vigorously enforcing the Canadian Charter of Rights and Freedoms. The emergence of judicial review from 1982 down to the present day is partly a rights from wrongs phenomenon, and it is partly the result of constitutional borrowing from the United States’s Warren Court.

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The Supreme Court of Canada, the House of Lords, the Judicial Committee of the Privy Council, and Administrative Law

Alberta Law Review ◽

10.29173/alr2326 ◽

1969 ◽

pp. 5

Author(s):

D. H. Clark

Keyword(s):

Supreme Court ◽

Case Law ◽

Administrative Law ◽

Supreme Court Of Canada ◽

Privy Council ◽

House Of Lords ◽

Mumbo Jumbo ◽

The Supreme Court ◽

The Law ◽

The Individual

The Supreme Court of Canada's contribution to the jurisprudence of administra tive law has been weak and fitful, erratic and lacking in attention to the principles of its own previous decisions. Failure to articulate points of distinction between its decisions has led to uncertainty in the law. The speaker suggested that the insufficiency of the Court's reasoning and the inadequacy of its citation might be reduced if judgments were more often delivered by more members of the Court thus increasing the individual research and writing of the Court so that its earlier fcmons would be kept in view and the case law developed more coherently. Furthermore, the Court should foUow the House of Lords in not considering itself bound by ds own decisions. The speaker regretted the Court's tendency to take mechanically conceptualise approach to substantive administrative law issues- if Canadian courts are to keep pace with those of other jurisdictions, the Supreme Court of Canada cannot continue to use outworn mumbo-jumbo as substitute for identifyltZtJ «»*"*»* societal interests that are the stuff of /hefPe?kfr aho discussed and compared the contributions of the House of Lords and of the Judicial Committee of the Privy Council. Although it has fewer members the House of Lords has more dissenters in administrative law decisions than the Supreme Court of Canada, (whereas the Privy Council until 1966 could not have dissent). While the S.C.C. has been inconsistent and weak, the Privy Council has been consistent and weak. Although there have been occasional achievements, between 1951 and 1971 the Privy Council rendered series of regressive decisions that impaired coherent development of the administrative law in England and in the Commonwealth. ReidZhh^ i*' f" H0USe °f Lof* under the influenc* of the late Lord h^'^nuJf has enjoyed as most creative °n TegreSSiVe period inPrivy relation Council to public decisions> law si™ However *• earlyhaknZd 1960's mnnt rxiicc ft ££Icrt has*eenperfo

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Conservation Controversy: Sparrow, Marshall, and the Mi’kmaq of Esgenoôpetitj

International Indigenous Policy Journal ◽

10.18584/iipj.2011.2.4.5 ◽

2011 ◽

Vol 2 (4) ◽

Cited By ~ 1

Author(s):

Sarah J King

Keyword(s):

Supreme Court ◽

First Nations ◽

First Nation ◽

Scientific Management ◽

Supreme Court Of Canada ◽

Management Problem ◽

Treaty Rights ◽

The Supreme Court ◽

Fisheries Policy ◽

The Government

This paper explores the interplay between the Sparrow and Marshall decisions of the Supreme Court of Canada, and the sovereigntist and traditionalist convictions of the Mi’kmaq of the Esgenoôpetitj/Burnt Church First Nation, as expressed in the conservationist language of the Draft for the Esgenoopotitj First Nations (EFN) Fishery Act (Fisheries Policy). With the Supreme Court of Canada’s decision in Sparrow, conservation became an important justification available to the Canadian government to support its regulatory infringement on aboriginal and treaty rights. Ten years later, in Marshall, the Court recognized the treaty rights of the Mi’kmaq to a limited commercial fishery. The EFN Fishery Act, written to govern the controversial post-Marshall fishery in Esgenoôpetitj (also known as the Burnt Church First Nation) demonstrates that for the Mi’kmaq, scientific management, traditional knowledge, sovereignty and spirituality are understood in a holistic philosophy. The focus placed on conservation by the courts, and the management-focused approach taken by the government at Esgenoôpetitj have led to government policy which treats conservation simply as a resource access and management problem. Conservation, which the Court deems “uncontroversial” in Sparrow, is a politically loaded ideal in post-Marshall Burnt Church.

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Delgamuukw v. British Columbia: When Aboriginal Voices of Law Were Finally Heard

Political Science Undergraduate Review ◽

10.29173/psur46 ◽

2018 ◽

Vol 3 (1) ◽

pp. 32-36

Author(s):

Reid Gomme

Keyword(s):

British Columbia ◽

Supreme Court ◽

First Nations ◽

Supreme Court Of Canada ◽

Land Claims ◽

Bad Faith ◽

Canadian Government ◽

Land Claim ◽

The Supreme Court ◽

Indigenous Land

This essay analyzes the enduring impact of the case Delgamuukw v. British Columbia (1997), in which the Supreme Court of Canada overturned the original ruling by the Supreme Court of British Columbia in 1997 upon appeal by members of the Gitskan and Wet’suwet’en peoples representing the Delgamuukw side. The case set strengthened precedent in Canada’s legal system for the use of indigenous oral history as acceptable evidence in identifying first nations land claims based on their ancestral accounts. As has been shown in more recent indigenous land claims cases such as Tsilhqot’in v. British Columbia (2014), this precedent is finally allowing some first nations communities a legal tool recognized strongly enough within Canadian legal systems, historically entrenched in European common and civil law approaches of justifying evidence, to gain more just land claims settlements. While actions by some levels of Canadian government, such as the British Columbian Liberal government’s 2001 popular referendum on the merits of indigenous land claims, have shown bad faith for the prospects of nation to nation land claim settlement negotiation, the pressure exerted on all levels of Canadian government by decisions such as Delgamuukw and Tsilhqot’in show promise in forcing a shift to more just land claim settlements in future disputes.

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Archaeological Evidence in the Tsilhqot’in Decision

Canadian Journal of Archaeology ◽

10.51270/44.2.155 ◽

2020 ◽

Vol 44 (2) ◽

pp. 155-184

Author(s):

Erin A. Hogg ◽

John R. Welch

Keyword(s):

Supreme Court ◽

First Nations ◽

Supreme Court Of Canada ◽

Trial Court ◽

Archaeological Evidence ◽

Archaeological Data ◽

Legal Standards ◽

The Supreme Court ◽

Judicial Proceedings ◽

Aboriginal Title

The 2014 Supreme Court of Canada Tsilhqot’in decision provides the first declaration of Aboriginal title to Canadian soil. Aboriginal title requires evidence of continuous, exclusive, and sufficient occupation of a territory. In the earlier trial before the British Columbia Supreme Court the Tsilhqot’in First Nations presented a substantial corpus of archaeological evidence to complement historical evidence, oral histories, and Tsilhqot’in testimony regarding the locations of Tsilhqot’in villages and the type and duration of their occupations. We examined this body of archaeological data in the context of the judicial proceedings to understand which data were considered favourably by the court and why. We found that the trial court accepted archaeological data as evidence of occupation on definite tracts of land at the time of sovereignty, agreeing with the Tsilhqot’in plaintiffs that the evidence met the legal standards for continuous and sufficient occupation. Because the Supreme Court Tsilhqot’in decision is the paramount statement on Aboriginal title, the treatment and consideration of archaeological data in that decision will likely set standards for and guide improvements to the applications of archaeological data in title cases.

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Digest of British Columbia Case Law, Being the Cases Determined in the Courts of British Columbia, and on Appeal Therefrom in the Supreme Court of Canada and the Judicial Committee of the Privy Council, and Reported in the British Columbia Reports (Vols. XXI to XLIV Inclusive), and All Current Western Reports, and the Law Reports, the Law Journal Reports and Other English Reports

University of Toronto Law Journal ◽

10.2307/824759 ◽

1936 ◽

Vol 1 (2) ◽

pp. 434

Author(s):

A. M. Whiteside

Keyword(s):

British Columbia ◽

Supreme Court ◽

Case Law ◽

Supreme Court Of Canada ◽

Privy Council ◽

The Supreme Court ◽

The Law ◽

Law Reports

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Ghost Dancing with Colonialism: Decolonization and Indigenous Rights at the Supreme Court of Canada, Grace Li Xiu Woo (Vancouver: UBS Press 2011)

Alberta Law Review ◽

10.29173/alr277 ◽

2012 ◽

Vol 50 (1) ◽

pp. 219

Author(s):

The Honourable John D. Reilly

Keyword(s):

Supreme Court ◽

First Nations ◽

Indigenous Rights ◽

Supreme Court Of Canada ◽

The Supreme Court ◽

Indian Reserve ◽

Nations Community

I write this review at the request of the Alberta Law Review. I assume they asked me for a couple of reasons. First, I sat as a judge for over thirty years, presiding over most of the cases arising on the Stoney Indian Reserve at Morley, Alberta. Second, I have written a book, based on that experience, entitled Bad Medicine: A Judge’s Struggle for Justice in a First Nations Community.

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