scholarly journals The Constitution’s Peoples: Approaching Community in the Context of Section 35 of the Constitution Act, 1982

2009 ◽  
Vol 54 (1) ◽  
pp. 1-43 ◽  
Author(s):  
Brent Olthuis
Keyword(s):  
Aboriginal Peoples ◽  
Individual Member ◽  
Canadian Society ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Aboriginal Community ◽  
Legal Principles ◽  
Unilateral Declaration ◽  
Aboriginal Law ◽  
Interpretive Process

Abstract Modern negotiations between the Crown (or private parties) and Canada’s Aboriginal peoples are largely based on the legal principles articulated in major court decisions. Yet those decisions have not yet confronted a fundamental question: how, in the first instance, do we determine which groups can lay claim to the Aboriginal and treaty rights “recognized and affirmed” by section 35 of the Constitution Act, 1982? The author argues that this question ought to form the theoretical cornerstone of the doctrine of Aboriginal and treaty rights. It is also of critical significance to the continuing process of reconciliation between the Aboriginal and non-Aboriginal elements of Canadian society. The interlocutors in this process must be identifiable. The community recognition needed to give effect to section 35’s inherently group-centred approach cannot be purely subjective or purely objective in nature. Neither a process of unilateral declaration nor one of pure observation can accurately identify the communities at issue under section 35. Rather, the inquiry requires an exercise of interpretation. To this end, the author proposes guidelines to focus and assist the interpretive process. This analysis ultimately entails a reconsideration of some of the prevailing orthodoxies in Aboriginal law jurisprudence, including the “test” for determining the existence of Aboriginal rights (from R. v. Van der Peet) and the notion that an individual member of a modern, rights-holding, Aboriginal community must prove an ancestral or genealogical link to a member of the group at some earlier time (from R. v. Powley).

‘The Crown Wears Many Hats’: Canadian Aboriginal Law and the Black-boxing of Empire

2015 ◽  
Author(s):  
Mariana Valverde ◽  
Adriel Weaver
Keyword(s):  
Legal Discourse ◽  
Public Law ◽  
The Body ◽  
Aboriginal Peoples ◽  
Aboriginal Rights ◽  
Legal Doctrine ◽  
Legal Principles ◽  
The Uncanny ◽  
Aboriginal Law ◽  
Bilateral Movement

In this ambitious but earthbound critique of the ‘black-boxing of empire’, Mariana Valverde and Adriel Weaver adroitly trace the construction and deconstruction of the spectral corpus mysticum in Canadian legal discourse. The authors interrogate the weird legal agency of the Crown in aboriginal rights cases, disclosing the relentless production of novelty concealed beneath the conservative image of a continuous, eternal office and recalling the Latourian lesson about law’s soi disant homeostatic character: ‘even in this case [in which legal principles are modified], it will only be a matter of making the body of legal doctrine still more coherent, so that, in the last analysis, nothing will really have budged.’ These cases, Valverde and Weaver show, contract into themselves Canada’s colonial/postcolonial histories and the full weight of its legal tradition’s contradictory commitments. The sovereign gesture of recognition, offered by way of the ‘honour of the Crown’, paradoxically deprives the aboriginal nations so recognised of their very claim to existence, their nationhood: ‘the Canadian state now has obligations of sovereign/royal honour toward all aboriginal peoples … but the naming of those obligations simultaneously performs a kind of re-coronation of the very colonial sovereign whose servants caused so much harm to aboriginal peoples over the centuries’. Valverde and Weaver allow us to linger on this troubling sense of the uncanny, of the historical deja vu or phantasm of repetition that takes on materiality in the bilateral movement of the Crown through the networks of public law. It is a phantasm that reappears in the discursive techniques of judges that are, in fact, elaborating and reinventing precisely the discretionary doctrinal construct (‘honour of the Crown’) that they claim, instead, to merely appeal to, hearkening to an eternal spring of sovereign virtue through the mists of antiquity.

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 Who Are the Metis People in Section 35(2)

1969 ◽  
pp. 351 ◽  
Author(s):  
Catherine Bell
Keyword(s):  
Homogeneous Group ◽  
Aboriginal Peoples ◽  
Federal Programs ◽  
Treaty Rights ◽  
Aboriginal Rights

Section 35 of the Constitution Act, 1982 recognizes the aboriginal and treaty rights of the aboriginal peoples. Section 35(2) defines "the Aboriginal peoples of Canada" as Indian, Inuit and Metis peoples. Although s. 35 may appear straightforward, the author points out its ambiguity. This article attempts to clarify it. The ambiguity stems from the fact that the section does not define the term "Metis" nor does it say whether the "Metis" have existing aboriginal rights recognized in s. 35(1). These questions arise because self-identifying Metis are not a homogeneous group that lend themselves to easy definition. Moreover they have traditionally been excluded from federal programs benefiting Indian peoples. The author examines the difficulties involved in defining the term 'Metis ' and analyzes some of the frameworks that have been suggested by various groups, including Metis organizations. She concludes that the term must be defined according to logical and political considerations in addition to self-identification based on racial, cultural and historical criteria.

scholarly journals Thin or Thick Inclusiveness? The Constitutional Duty to Consult and Accommodate First Nations in Canada

2019 ◽  
Vol 34 (1) ◽  
pp. 149-175
Author(s):  
Ian James Urquhart
Keyword(s):  
First Nations ◽  
Oil Sands ◽  
Aboriginal Peoples ◽  
Resource Exploitation ◽  
Judicial Interpretation ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
The Status ◽  
Natural Resource Exploitation ◽  
General Thrust

What has the addition of aboriginal rights to the Canadian constitution in 1982 meant for the place of First Nations’ interests in the Canadian constitutional order? This article considers this question in the context of natural resource exploitation – specifically, the exploitation of the oil or tar sands in Alberta. It details some of the leading jurisprudence surrounding Section 35 of the Constitution Act 1982, the section of the Constitution recognizing existing aboriginal and treaty rights. Arguably, Section 35 represented an important effort to improve the status of aboriginal peoples in Canada, to enhance the extent to which Canada included and respected the values and interests of First Nations. The article specifically considers how the judicial interpretation of the Crown’s duty to consult and accommodate aboriginal peoples is related to the theme of inclusivity. It argues that the general thrust of judicial interpretation has promoted a thin, or procedural, version of inclusiveness rather than a substantive, or thicker, one. Such a thicker version of inclusiveness would be one in which the pace of oil sands exploitation is moderated or halted in order to allow First Nations to engage in traditional activities connected intimately with aboriginal and treaty rights.

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 THE HARD CASE OF DEFINING “THE MÉTIS PEOPLE” AND THEIR RIGHTS: A COMMENT ON R. V. POWLEY

2011 ◽  
Vol 12 (1, 2 & 3) ◽  
pp. 2002
Author(s):  
Paul L.A.H. Chartrand
Keyword(s):  
Constitutional Reform ◽  
Aboriginal Peoples ◽  
Treaty Rights ◽  
Hard Case ◽  
Substantive Content ◽  
Aboriginal Law ◽  
Charlottetown Accord

Section 35(2) of the Constitution Act, 1982 refers to “the Métis people” as one of the Aboriginal peoples of Canada whose existing Aboriginal and treaty rights are guaranteed by section 35(1).1 The subsequent First Ministers Conference on Aboriginal Constitutional Reform in the 1980s and the Charlottetown Accord in 1992 proved inadequate to the task of addressing the substantive content of these constitutional provisions. The unenviable task of defining a people and their rights has now fallen to the courts. The challenge facing them is the hard case of Canadian Aboriginal law.

scholarly journals Indigenous Environmental Rights in Canada: The Right to Conservation Implicit in Treaty and Aboriginal Rights to Hunt, Fish, and Trap

2010 ◽  
pp. 959 ◽  
Author(s):  
Lynda M. Collins ◽  
Meghan Murtha
Keyword(s):  
Aboriginal Peoples ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Environmental Rights ◽  
Environmental Preservation ◽  
General Law ◽  
Central Argument ◽  
The Right ◽  
Subsistence Activities

This article is an exploration of Aboriginal and treaty rights strategies for protecting Indigenous environmental rights in Canada. The analysis begins with an outline of the problem, and the shortcomings of the available general law avenues. The authors then argue for the existence of a constitutionalized right to environmental preservation implicit in treaty and Aboriginal rights to hunt, fish, and trap. The article explores the theoretical, historical, and precedential support for this proposition. The central argument is that in securing the right to hunt, fish, and trap, Aboriginal peoples were in fact contracting for the continued existence of their traditional subsistence activities. These practices could not survive without the preservation of the ecosystems on which they depend, and the harvesting rights must therefore be seen to encompass a right to such preservation. Examination of the specific histories of treaty-making in Canada reveals that in many if not most cases, both the Crown and the Aboriginal signatories understood this substantive protection to be a part of the treaty guarantees. The authors then present a brief articulation of the corresponding Aboriginal right to conservation.

The Space of Difference in Law: Inquests into Aboriginal Deaths in Custody

Somatechnics ◽  
2011 ◽  
Vol 1 (1) ◽  
pp. 87-123 ◽  
Author(s):  
Sherene H. Razack
Keyword(s):  
Aboriginal People ◽  
The Body ◽  
Police Brutality ◽  
Canadian Society ◽  
Aboriginal Community ◽  
Police Custody ◽  
Homo Sacer ◽  
Clear Sign ◽  
A Site ◽  
Deaths In Custody

Paul Alphonse, a 67 year-old Aboriginal died in hospital while in police custody. A significant contributing factor to his death was that he was stomped on so hard that there was a boot print on his chest and several ribs were broken. His family alleged police brutality. The inquest into the death of Paul Alphonse offers an opportunity to explore the contemporary relationship between Aboriginal people and Canadian society and, significantly, how law operates as a site for managing that relationship. I suggest that we consider the boot print on Alphonse's chest and its significance at the inquest in these two different ways. First, although it cannot be traced to the boot of the arresting officer, we can examine the boot print as an event around which swirls Aboriginal/police relations in Williams Lake, both the specific relation between the arresting officer and Alphonse, and the wider relations between the Aboriginal community and the police. Second, the response to the boot print at the inquest sheds light on how law is a site for obscuring the violence in Aboriginal people's lives. A boot print on the chest of an Aboriginal man, a clear sign of violence, comes to mean little because Aboriginal bodies are considered violable – both prone to violence, and bodies that can be violated with impunity. Law, in this instance in the form of an inquest, stages Aboriginal abjection, installing Aboriginal bodies as too damaged to be helped and, simultaneously to harm. In this sense, the Aboriginal body is homo sacer, the body that maybe killed but not murdered. I propose that the construction of the Aboriginal body as inherently violable is required in order for settlers to become owners of the land.

Part III Indigenous Peoples and the Canadian Constitution, C Indigenous Peoples and the Constitution Act, 1982, Ch.15 The Form and Substance of Aboriginal Title: Assimilation, Recognition, Reconciliation

2017 ◽  
Author(s):  
Macklem Patrick
Keyword(s):  
Indigenous Peoples ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Constitutional Order ◽  
Canadian Law ◽  
Aboriginal Title ◽  
Ways Of Life

This chapter highlights law’s participation in the colonizing projects that initiated the establishment of the Canadian constitutional order. Imperial and subsequently Canadian law deemed legally insignificant the deep connections that Indigenous peoples had with their ancestral territories, and imposed alien norms of conduct on diverse Indigenous ways of life. In doing so, law legitimated the manifold political, social, and economic acts of dispossession and dislocation that collectively bear the label of colonialism. The constitutional entrenchment of Aboriginal and treaty rights in 1982 formally recognized a distinctive constitutional relationship between Indigenous peoples and Canada. The judiciary has begun to see the purpose of formal constitutional recognition to be a process of substantive constitutional reconciliation of the interests of Canada and Indigenous peoples. This chapter argues that constitutional reconciliation can only commence by comprehending Aboriginal rights and title as protecting Indigenous interests associated with culture, territory, treaties, and sovereignty in robust terms.

scholarly journals Earnings implications of person years lost life expectancy among Canada's aboriginal peoples

2003 ◽  
Vol 30 (2) ◽  
pp. 271
Author(s):  
Paul S. Maxim ◽  
Jerry P. White ◽  
Stephen Obeng Gyimah ◽  
Daniel Beavon
Keyword(s):  
General Population ◽  
Life Expectancy ◽  
Economic Consequences ◽  
Aboriginal Peoples ◽  
Differential Mortality ◽  
Labor Income ◽  
Aboriginal Community ◽  
Aboriginal Population ◽  
National Life ◽  
Mortality Differential

Overall, Canada has one of the world’s highest national life expectancies. This benefit is not shared by Canada’s aboriginal population, however, which has a life expectancy approximately seven years less than the general population. The Aboriginal population also differs in that it has a higher fertility rate and higher mortality rates among infants and young adults. One of the consequences of the mortality differential is that the number of person years of lost life (PYLL) expectancy is large for the Aboriginal community in comparison to the general population. While several studies have focused on the causes of differential mortality, this study examines some of the socio-economic consequences of differences in PYLL. Examining wage labor income, for example, we determine that the PYLL differential translates into an expected wage and salary loss of approximately $1.56 billion.

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