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.

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.

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.

scholarly journals What has Dunsmuir Taught?

2010 ◽  
pp. 1017
Author(s):  
Alice Woolley ◽  
Shaun Fluker
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Review Process ◽  
Functional Test ◽  
Supreme Court Of Canada ◽  
Review Analysis ◽  
The Supreme Court ◽  
Majority Judgment ◽  
Administrative Tribunal

In Dunsmuir the Supreme Court of Canada reassessed the “troubling question” of how courts should review decisions of administrative tribunals. The majority judgment of Bastarache and LeBel JJ. (writing also for McLachlin, Abella, and Fish JJ.), sought to simplify the judicial review process by reducing the standards of review from three to two, increasing reliance on precedent to determine which standard is appropriate, making explicit the significance of the nature of the question to the determination of the standard in every case, and re-labelling the “pragmatic and functional” test the “standard of review analysis.” In its recent judgment in Khosa the Supreme Court emphasized the simplifying intention of Dunsmuir, suggesting that “Dunsmuir teaches that judicial review should be less concerned with the formulation of different standards of review and more focused on substance, particularly on the nature of the issue that was before the administrative tribunal under review.”

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 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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