scholarly journals Interpreting Sui Generis Treaties

1997 ◽  
Vol 36 (1) ◽  
pp. 46 ◽  
Author(s):  
James (Sakej) Youngblood Henderson
Keyword(s):  
Supreme Court ◽  
Contextual Analysis ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
Cognitive Diversity ◽  
Treaty Rights ◽  
The Supreme Court

This article explores the interpretive principle of sui generis treaties introduced by the Supreme Court of Canada since the repatriation of the Constitution in 1982. The article proceeds through an analysis of treaty rights as constitutional rights, contextual analysis of Indian Treaties, the intent of the treaty parties and the principles which govern the interpretation of treaty text. The author concludes that the principles articulated by the Supreme Court of Canada are an attempt to affirm and enhance Aboriginal worldviews and cognitive diversity within the Constitution of Canada.

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.

Canada’s Constitution and Courts

2018 ◽  
Author(s):  
Jud Mathews
Keyword(s):  
Supreme Court ◽  
Private Law ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
Provincial Autonomy

This chapter explores the development of Canadian constitutionalism leading up to judicial engagement with the horizontal effect of rights. The Supreme Court of Canada already enjoyed an exceptionally broad jurisdiction when the enactment of the Charter of Rights and Freedoms in 1982 gave it an extensive set of constitutional rights to interpret. At the same time, the very breadth of the Court’s formal powers was a reason to use them carefully, especially because the Charter triggered anxieties about federalism among many advocates for provincial autonomy. This chapter shows how, in this context, the Supreme Court of Canada had little to gain from announcing a far-reaching constitutionalization of private law.

Pluralism, Autonomy and Resistance: A Canadian Perspective on Resolving Conflicts between Freedom of Religion and lgbtq Rights

2017 ◽  
Vol 12 (1) ◽  
pp. 1-37
Author(s):  
Diana Ginn ◽  
Kevin Kindred
Keyword(s):  
Supreme Court ◽  
Law School ◽  
Fundamental Rights ◽  
Freedom Of Religion ◽  
Sexual Intimacy ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
Post Secondary ◽  
The Supreme Court ◽  
Fundamental Rights And Freedoms

Trinity Western University (twu), an evangelical post-secondary institution in Canada, has litigated against three provincial law societies who refused to accredit twu’s proposed law school because of a mandatory University Covenant that prohibits sexual intimacy outside of marriage ‘between one man and one woman’. Leave has been granted to appeal this matter to the Supreme Court of Canada. This litigation involves a conflict between constitutional rights: freedom of religion and lgbtq equality rights. The Supreme Court of Canada mandates a non-hierarchical approach to resolving such conflicts, aimed at ensuring constitutional rights and freedoms do not depend on majoritarian support. Balancing competing fundamental rights and freedoms must be done contextually, with a weighing of harms and benefits on each side. Despite strong moral and theological objections to twu’s stance on same-sex relationships, the authors argue that, in this instance the balancing of harms and benefits weighs in favour of freedom of religion.

scholarly journals A Decade Later: The Legacy of the Supreme Court of Canada's Health Services Decision on Workers' Rights

2019 ◽  
Vol 10 (1) ◽  
Author(s):  
Brad Walchuk
Keyword(s):  
Human Rights ◽  
Health Services ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
Canadian Charter ◽  
The Past ◽  
The Supreme Court ◽  
The Impact ◽  
Financial Penalty

The year 2017 marked the ten-year anniversary of the Health Services case, a precedent-setting decision by the Supreme Court of Canada that ruled collective bargaining is protected by the Canadian Charter of Rights and Freedoms. This article explores the impact and legacy of BC Health Services, and finds that while workers’ constitutional rights have been expanded under the Charter over the past decade, governments nevertheless continue to violate these rights. It concludes that the legacy of the case is not an enhanced level of protection for these rights to be enjoyed fully, but rather that the default option has been and will continue to be a financial penalty for the state in instances in which they violate workers’ rights.  KEYWORDS  labour rights; Canadian Charter of Rights and Freedoms; human rights; health services

On the breach: Identifying infringements of section 35 rights

2021 ◽  
Author(s):  
Kerry Wilkins
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Substitution Effects ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Canadian Law ◽  
The Supreme Court ◽  
Inclusive Approach ◽  
Critical Scrutiny

Section 35 of the Constitution Act, 1982, the Supreme Court of Canada has said, protects existing Aboriginal and treaty rights from unjustified infringement at the hands of federal and provincial legislatures and governments. To give meaningful effect to section 35’s protection, we need, therefore, to understand what counts as infringement of such rights and why. The Supreme Court’s own jurisprudence to date on this question, alas, disappoints; it does not withstand close critical scrutiny. This article calls attention to several shortcomings and inconsistencies in that jurisprudence and proposes for initial consideration a more inclusive approach to infringement identification, one that draws a sharper distinction between the infringement and justification inquiries. Adoption of such an approach, however, could have unwelcome substitution effects, prompting cautious courts to be more selective when asked to authenticate future claims of Aboriginal right, more penurious when construing the constitutionally protected scope of particular treaty or Aboriginal rights and/or more generous to governments during the justification inquiry. If the goal is to optimize the protection that Canadian constitutional law affords to treaty and Aboriginal rights, we shall need to be mindful of the interdependence among the authentication, infringement, and justification inquiries, and we shall need to understand much more clearly than we currently do just where the outer limits are beyond which mainstream Canadian law cannot, or will not, countenance Indigenous ways and why.

scholarly journals Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test

1997 ◽  
Vol 36 (1) ◽  
pp. 149
Author(s):  
Leonard I. Rotman
Keyword(s):  
Supreme Court ◽  
Aboriginal Peoples ◽  
Federal Legislation ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Straightforward Application ◽  
The Supreme Court

In the case of R. v. Sparrow, the Supreme Court of Canada created a justificatory scheme for federal legislation that had the potential to derogate from the rights of the Aboriginal peoples that are protected by s. 35(1) of the Constitution Act, 1982. Since that time, the Sparrow test has been applied to both Aboriginal and treaty rights. The author suggests that the straightforward application of the Sparrow test to treaty rights is inappropriate because of the significant distinctions between Aboriginal and treaty rights. Where there is a need to balance treaty rights with competing rights, any justificatory standard to be applied ought to be consistent with the consensual basis of Crown- Native treaties.

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

2011 ◽  
Vol 2 (4) ◽  
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.

scholarly journals Alberta's Energy and Utilities Board and the Constitution of Canada

2020 ◽  
pp. 369-381
Author(s):  
Nickie Vlavianos
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
The Supreme Court ◽  
Administrative Tribunal

The author explores the jurisdictional ability of an administrative tribunal — specifically, the Alberta Energy and Utilities Board (EUB) — to decide constitutional matters. She focuses particularly on tribunal decisions relating to Charter rights and Aboriginal or treaty rights (s. 35(1)) and examines the recent decisions of Martin and Paul from the Supreme Court of Canada. The author concludes that for questions of law, the EUB has not only the option but the duty to consider constitutional questions.

scholarly journals Life Among the Ruins: Section 91(24) After Tsilhqot'in and Grassy Narrows

2017 ◽  
Author(s):  
Kerry Wilkins
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
The Supreme Court ◽  
Additional Protection ◽  
The Law

In two landmark 2014 decisions — Tsilhqot’in and Grassy Narrows — the Supreme Court of Canada held that section 35 of the Constitution Act, 1982, is all that protects existing Aboriginal and treaty rights from federal or provincial infringement: that such rights derive no additional protection from the doctrine of interjurisdictional immunity. This article examines that conclusion by criticizing the reasoning offered in its support, pointing out its unacknowledged doctrinal implications, and inviting a broader conversation about how the law should address them.

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