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

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.

scholarly journals Policy Forum: In Defence of the First Nations Fiscal Management Act

2021 ◽  
Vol 69 (3) ◽  
pp. 829-833
Author(s):  
André Le Dressay
Keyword(s):  
First Nations ◽  
Financial Management ◽  
Indigenous Rights ◽  
Supreme Court Of Canada ◽  
Administrative Capacity ◽  
Fiscal Management ◽  
Debt Capital ◽  
The Supreme Court ◽  
Governmental Power ◽  
Policy Forum

The debate with respect to the recognition of Indigenous rights, title, and jurisdiction has largely been won. It has now moved to how best to implement those rights, title, and inherent jurisdictions. For Indigenous taxation jurisdiction, implementation must address challenges related to taxpayer representation, concurrent jurisdiction, service agreements with other governments, administrative capacity, financial management, and access to public debt capital at competitive rates. In this article, the author argues that the First Nations Fiscal Management Act (FMA) has been successful in overcoming these challenges. The FMA has protected and expanded Indigenous tax jurisdiction through standards and institutional support. As a result, it represents an effective path for interested Indigenous governments "to exercise [their] inherently governmental power of taxation" affirmed by the Supreme Court of Canada in <i>Matsqui Indian Band</i>, and to expand their use of that power.

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

2019 ◽  
Vol 27 (1) ◽  
pp. 25-34 ◽  
Author(s):  
Ryan Beaton
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
Short Story ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
The Supreme Court ◽  
Shed Light

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.

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.

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

2018 ◽  
Vol 26 (4) ◽  
pp. 25
Author(s):  
Ryan Beaton
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
First Nations ◽  
Short Story ◽  
Attorney General ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Shed Light

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.

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

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.

Archaeological Evidence in the Tsilhqot’in Decision

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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