scholarly journals The National Energy Board as Intermediary Between the Crown, Aboriginal Peoples, and Industry

2015 ◽  
pp. 837
Author(s):  
Morris Popowich
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
Regulatory Process ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Legal Requirements ◽  
Regulatory Review ◽  
Legal Standard ◽  
Policies And Procedures ◽  
Near Future

Recent Supreme Court of Canada decisions have forced the National Energy Board to reconsider its responsibilities with respect to Aboriginal peoples.  This has impacted the Board's ability to clearly articulate its policies and procedures, specifically in the area of consultation with Aboriginal peoples, as the legal standard for consultation seems to change from year to year and stakeholders on all sides of the regulatory process press the Board to interpret these legal requirements in a way that suits their interests best. This article outlines challenges facing the Board with respect to consultation with First Nations and identifies strategies through which it has attempted to address them. Specifically, it describes the Board's policies on consultation and its administrative response to the MacKemie Valley pipeline regulatory review. The article assesses the viability of these strategies in light of challenges the Board is likely to face in the near future.

scholarly journals Dizzying Dialogue: Canadian Courts and the Continuing Justification of the Dispossession Of Aboriginal People

2011 ◽  
Vol 29 ◽  
pp. 55 ◽  
Author(s):  
D’Arcy Vermette
Keyword(s):  
Supreme Court ◽  
Aboriginal People ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Peuples Autochtones

Since Aboriginal rights have found protection within Canada’s Constitution, a new relationship has emerged between Canada’s Aboriginal Peoples and the Crown. This relationship is characterized by the need for “reconciliation.” In its growing jurisprudence, the Supreme Court of Canada applies reconciliation doctrine to several important Aboriginal claims. Each application, however, brings with it a restriction on Aboriginal rights. This paper argues that the Court’s conception of reconciliation is designed to facilitate the integration of Aboriginal peoples into larger society rather than to protect their collective interests. To demonstrate this argument, this paper examines the Supreme Court’s discussion of the doctrine of reconciliation from Sparrow (1990) to Little Salmon (2010).Depuis que les droits des autochtones sont protégés par la constitution canadienne, une nouvelle relation, ayant comme caractéristique le besoin de « réconciliation », a vu le jour entre les peuples autochtones du Canada et la Couronne. La Cour suprême du Canada a appliqué la doctrine de la réconciliation dans la série d’arrêts où elle s’est penchée sur plusieurs importantes revendications autochtones. Dans chaque cas, l’application de la doctrine de la réconciliation a cependant abouti à une restriction des droits des autochtones. Dans cet article, l’auteur soutient que, dans l’esprit de la Cour, la réconciliation vise à faciliter l’intégration des peuples autochtones dans la société en général plutôt qu’à protéger leurs intérêts collectifs. Pour étayer cette opinion, il examine l’analyse qu’a faite la Cour suprême de la doctrine de réconciliation de l’arrêt Sparrow (1990) à l’arrêt Little Salmon (2010).

scholarly journals The Métis and the Courts: Interrogating Métis-Focused Supreme Court Decisions in Canada

2019 ◽  
Vol 4 (1) ◽  
pp. 40-48
Author(s):  
Thomas Feth
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
Court Decisions ◽  
Supreme Court Of Canada ◽  
New Era ◽  
Indigenous Activism ◽  
Equality Rights ◽  
Supreme Court Decisions ◽  
Primary Focus ◽  
Aboriginal Groups

This paper is broadly concerned with the politics of the Canadian constitution, with its primary focus being the relationship between the Métis and the Supreme Court of Canada. The Métis are one of three Aboriginal groups in Canada that are officially recognized in the Constitution Act, 1982, along with the First Nations and the Inuit. The Act sparked a new era of Canadian jurisprudence and Indigenous activism through the courts. Despite the hopes of the Métis, major Supreme Court decisions vis-à-vis Métis issues since 1982 have been questionable if not problematic. This paper discusses Métis identity, jurisdiction, equality rights, and the question of Métis title in relation to four Supreme Court decisions. The paper aims to provide an overview of the most pertinent issues and cases in Métis constitutional law, while arguing that Métis-focused Supreme Court decisions have done little to improve the position and status of the Métis people in Canadian society, while some judgements have even undermined them.

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 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 Commentary on “Adhesion to Canadian Indian Treaties and the Lubicon Lake Dispute”

1992 ◽  
Vol 7 (2) ◽  
pp. 207-212
Author(s):  
Kent McNeil
Keyword(s):  
Supreme Court ◽  
Canadian Journal ◽  
Law And Society ◽  
Aboriginal Peoples ◽  
Western Canada ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Unexplored Area ◽  
Aboriginal Title

Thomas Flanagan's article on adhesion to Indian treaties in this issue of the Canadian Journal of Law and Society is a bold foray into a virtually unexplored area of aboriginal rights. Although adhesions to most of the eleven Numbered Treaties in northern and western Canada were common, as Flanagan points out, not much attention has been paid to them. The matter is nonetheless of major importance for many aboriginal peoples, as was demonstrated by the decision of the Supreme Court of Canada last year that the Teme-Augama Anishnabai had surrendered their aboriginal title by adhesion to the 1850 Robinson-Huron Treaty. There can be little doubt that the issue is going to arise more frequently as other aboriginal peoples challenge the application of treaties to their ancestral lands.

scholarly journals Aboriginal Title and Aboriginal Rights: What's the Connection

1997 ◽  
Vol 36 (1) ◽  
pp. 117 ◽  
Author(s):  
Kent McNeil
Keyword(s):  
Supreme Court ◽  
The Body ◽  
Legal Issues ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
Aboriginal Title ◽  
Judicial Treatment

The author presents an analysis and critique of the current law and judicial treatment of legal issues relating to the rights of Aboriginal peoples. His focus is an examination of the connection between Aboriginal rights and Aboriginal title to land. The author analyzes recent Supreme Court of Canada decisions which attempt to clarify the body of law in this area. R. v. Van der Peet, R. v. Adams, and R. v. C

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 No Middle Ground: Ad Medium Filum Aquae, Aboriginal Fishing Rights, and the Supreme Court of Canada's Decisions in Nikal and Lewis

2014 ◽  
Vol 31 (3) ◽  
pp. 515-597
Author(s):  
Peggy J. Blair
Keyword(s):  
Supreme Court ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Middle Ground ◽  
Aboriginal Rights ◽  
Fishing Rights ◽  
The Supreme Court

This article will argue that in two decisions of the Supreme Court of Canada which considered the ad medium filum aquae presumptions, the Court wrongly concluded that exclusive aboriginal fishing rights were not "granted" by the Crown and therefore did not exist in waters adjacent to reserves. It will show that in both Nikal and Lewis, the Court relied on highly technical European laws which are inappropriate where aboriginal laws and perspectives are required to be taken into account. By accepting historically discriminatory policies of the Crown to prove the existence of aboriginal rights, it will be argued that the Court ignored the pre-existing rights and title of aboriginal peoples.

scholarly journals Fiduciary Relationship as Contemporary Colonialism

2012 ◽  
Vol 3 (2) ◽  
pp. 98-115
Author(s):  
Christina Yui Iwase
Keyword(s):  
North America ◽  
Supreme Court ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
Constitutional Protection ◽  
The Supreme Court ◽  
Recent Tendency

Aboriginal rights as inherent rights deriving from Aboriginal peoples’ historical occupation of North America (i.e. sovereignty) are recognized and affirmed in Section 35(1) of the Canadian Constitution Act, 1982. Despite the fact that this constitutional protection recognizes the sui generis nature of the Crown-Aboriginal relationship, there is a recent tendency in the Supreme Court of Canada to comprehend Aboriginal rights by characterizing the Crown-Aboriginal relationship as fiduciary. This paper discusses the danger of recognizing Aboriginal rights through the lens of a Crown-Aboriginal fiduciary relationship. This type of recognition entails: (1) authorizing excessive fiduciary discretion by the Crown, as opposed to focusing on its obligations; (2) failing to reflect the Aboriginal perspective on Aboriginal rights, which are derived from Aboriginal sovereignty; (3) fundamentally distorting the nature of Aboriginal rights by creating a myth that Aboriginal rights were created by the Canadian constitution; and (4) as a result, creating vulnerability on the Aboriginal side by making Aboriginal peoples tacitly consent to the Crown’s de facto sovereignty. If the Court’s characterization of the Crown-Aboriginal fiduciary relationship remains as it is now, the gap between the Crown’s understanding of Aboriginal rights and that of Aboriginal peoples may constitute a form of contemporary colonialism.

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