Deepening counter institutions: Property, lands, relations, and the economic future of the Tŝilhqot’in

The recognition of Aboriginal title by the Supreme Court of Canada in 2014 affirmed the existence and relevance of a Tŝilhqot’in legal order governing the relationship that Tŝilhqot’in people have with their lands, with each other, and with outsiders. The challenge now for the Tŝilhqot’in is to articulate and enact these laws in ways that respond to their modern socio-economic and cultural-ecological needs and goals without betraying their fundamental principles. Complicating this is a dominant narrative which rationalizes First Nations compliance with liberal institutions of British common law, property, and market-based economic growth as requirements for socio-economic improvements and well-being within First Nations communities. This article interrogates some of the logics and fundamental assumptions that underpin the arguments of liberal property rights enthusiasts, questioning their applicability to the values and aspirations of the Tŝilhqot’in people and First Nations broadly. The Tŝilhqot’in, empowered through title, at once resist liberal private property while at the same recognize the need for institutional developments in relation to lands, housing, and ‘ownership’. This indicates a need for new legal conceptualizations of property that are more comprehensively rooted in, and reflective of, Indigenous laws and land relations.

What Has Changed Since 2015? A New and Expanded Update on Copyright Practices and Approaches at Canadian Post-Secondaries

Objective – The aim of this study is to update our understanding of how Canadian post-secondary institutions address copyright education, management, and policy matters since our last survey conducted in 2015. Through the new survey, we seek to shed further light on what is known about post-secondary educational copying and contribute to filling some knowledge gaps such as those identified in the 2017 statutory review of the Canadian Copyright Act. Methods – In early 2020, a survey invitation was sent to the person or office responsible for oversight of copyright matters at member institutions of five Canadian regional academic library consortia. The study methods used were largely the same as those employed in our 2015 survey on copyright practices of Canadian universities. Results – In 2020, respondents were fewer in number but represented a wider variety of types of post-secondary institutions. In general, responsibility for copyright services and management decisions seemed to be concentrated in the library or copyright office. Topics covered and methods used in copyright education remained relatively unchanged, as did issues addressed in copyright policies. Areas reflecting some changes included blanket collective licensing, the extent of executive responsibility for copyright, and approaches to copyright education. At most participating institutions, fewer than two staff were involved in copyright services and library licenses were the permissions source most frequently relied on “very often.” Few responded to questions on the use of specialized permissions management tools and compliance monitoring. Conclusion – Copyright practices and policies at post-secondary institutions will continue to evolve and respond to changes in case law, legislation, pedagogical approaches, and students’ learning needs. The recent Supreme Court of Canada ruling on approved copying tariffs and fair dealing provides some clarity to educational institutions regarding options for managing copyright obligations and reaffirms the importance of user’s rights in maintaining a proper balance between public and private interests in Canadian copyright law.

On the breach: Identifying infringements of section 35 rights

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.

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

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.

The notwithstanding clause: Legislatures, courts, and the electorate

This article interprets the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms. When a legislature activates the notwithstanding clause, subsection 33(2) temporarily ensures a protected law’s ‘operation’ by preventing it from being ‘inconsistent’ with the Constitution of Canada in the sense of the supremacy clause, thereby precluding judicial remedies such as striking down. Construed in the light of its components (some never considered by the Supreme Court of Canada) and other constitutional features, the notwithstanding clause does not make rights irrelevant or strip them of their legal character. Nor does it confide the assessment of trade-offs about rights to the legislature alone. Instead, subsection 33(3) indicates a framework for such assessments in which the voting public plays a crucial evaluative role. The courts, as interpreters and guardians of the Constitution, can, and in some circumstances should, support the public’s constitutional role by declaring the extent to which a protected law unjustifiably limits Charter rights. The public’s ability to take such declarations into account in evaluating rights trade-offs would advance the democratic purpose of subsection 33(3), a purpose that underpins our constitutional framework more broadly.

A Crisis in National Unity?: The Chicken and Egg War, 1970–1971

This article examines the now largely forgotten, but then important, “Chicken and Egg War” of 1970–71. The chicken and egg war began when the Quebec government established the Fédération des producteurs d’œufs de consommation du Québec (FPOCQ) in 1970, a marketing board that began to restrict the price, grading, and sale of all eggs in Quebec, including egg imports from other provinces. The new board disrupted egg sales in Manitoba and Ontario, and it was not long before a series of legislative retaliations among the provinces took place, including strict import controls on broiler chickens and eggs and the seizure of out-of-province produce. Although predominantly contained to the neighbouring provinces of Manitoba, Ontario, and Quebec, this event was significant because it resulted in appeals to the Supreme Court of Canada, claims made concerning the rights of provinces vis-à-vis the federal government, and the restriction of agricultural goods, in this case, poultry and eggs, across provincial boundaries. This episode also had serious political ramifications, including fractured relationships among farmers, consumers, other industry stakeholders, and politicians and heightened tensions surrounding the legality and authority of provincial agricultural marketing boards. Ultimately, this “war” provided a significant impetus for the federal government to establish a national system of supply management in the egg and poultry sectors, a system which remains today.

The Shifting Pendulum: Foreign Investors’ Liability Under Canada’s Common Law for Breaches of Customary International Law

In February 2020, the Supreme Court of Canada rendered a decision—Nevsun Resources Ltd. v. Araya, 2020 SCC 5—that can properly be described as revolutionary. In Nevsun, the court found that a Canadian corporation operating in a host state, Eretria, could be liable under Canadian domestic law for human rights abuses committed in Eritrea under customary international law, as incorporated into Canadian domestic law. The decision merits special attention because it is likely to fundamentally change the relationship between foreign investors, host states and the residents of host states adversely affected by investors’ unlawful conduct which amount to modern slavery.

Re Resolution to Amend the Constitution of Canada [1981] 1 SCR 753, also known as the Patriation Reference, Supreme Court of Canada

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Re Resolution to Amend the Constitution of Canada [1981] 1 SCR 753, also known as the Patriation Reference, Supreme Court of Canada. This case considers the identification of constitutional conventions using the Jennings test, and the legal enforceability of conventions. The document also includes supporting commentary from author Thomas Webb.

CURRENT ISSUES OF CONSTITUTIONAL DAMAGES LITIGATION: A CONTEXTUAL ANALYSIS OF RECENT COMMONWEALTH DECISIONS

The Privy Council judgments in James v Attorney General [2010] UKPC 23 and Graham v Police Service Commission [2011] UKPC 46 have advanced the constitutional damages jurisprudence not only in Trinidad and Tobago but also the Commonwealth since Attorney General v Ramanoop [2005] 2 WLR 1324 (PC). In their recent decision in Seepersad v Attorney General [2012] UKPC 4, their Lordships answered two crucial questions hitherto not contested in South Africa or any other Commonwealth court relating to a right to a constitutional remedy and a constitutional right to damages. They held that constitutional damages were the appropriate relief as against those cases where constitutional relief were sought in non-constitutional circumstances. The Supreme Court of Canada has equally contributed to the subject by holding in Canada (Attorney General) v TeleZone Inc [2010] 3 SCR 585 (SCC) that a claimant for Charter damages does not have to obtain judicial review before seeking such relief. This article argues that, while TeleZone has restored the citizen’s right of access to the courts by removing unnecessary procedural obstacles to Charter damages claim, the Privy Council has, through Seepersad, once more laid down principles which South African and other Commonwealth courts may freely refer to if and when similar issues arise in constitutional damages litigation in their jurisdictions.