Aboriginal Law

The authors question whether the Supreme Court of Canada has a grander agenda in its formulation of Aboriginal Title in Tsilhqoti'n Nation v. British Columbia than that of merely ensuring financial utility. While private ownership certainly does not reflect the territorial nature of Aboriginal title, it is pertinent to ask if the decision aims to satisfy more than the financial goals of private ownership. Is the Court in Tsilhqot’in attempting to indirectly politically empower Indigenous peoples as collectives by recognizing their private control over vast tracts of lands? The clarity of the court regarding the beneficial interest in Title land, the scope of territory to be included, the commonality of holding, and the right to decide on its uses are key themes that could indicate this intention. Taken together with its overall trend towards conceptualizing reconciliation through consultation that ensures compensation, these characteristics authorize titleholders to directly exclude non-consensual users and indirectly imposes a cost on government infringement so high as to be prohibitive or, at least, a serious disincentive to unilateral action by governments or industry proponents

PREFACE Per Section 35 of the Canadian Constitution, which provides constitutional protection of indigenous and treaty rights, the Government of Canada has a fiduciary duty to the indigenous people of Canada. This duty is compounded by contractual settlement agreement obligations and international laws. Sadly, Inuit Elders who have chronic health needs are removed and relocated to distant non-Inuit communities and institutions for long-term palliative and hospice care. There is an obvious systemic problem where governments with limited funding, in harsh and complex environs, are unable to provide the requisite health care, housing, and other social services and infrastructure Inuit communities and people direly need. Reminiscent of subjugation and oppression, these socioeconomic failings show that vestiges of colonialism still exist. This essay does not intend to appropriate the voice of Inuit people. It seeks to incorporate the views of Inuit people from their documents and external sources to describe the tragic irony that the system of Inuit Elder long-term residential care represents. It is only they who can truly judge, in the wake of Residential Schools and the Truth and Reconciliation Commission, how well they have progressed or achieved their goals of self-determination and self-governance.

Keith G. Brown, Mary Beth Doucette and Janice Esther Tulk (eds.), Indigenous Business in Canada: Principles and Practices. Sydney, Nova Scotia: Cape Breton UP, 2016. 303 pages. ISBN 978-1-77206-004-7. $27.95 paperback.This text book is full of useful information for those Indigenous students seeking to understand how to approach business from within Indigenous communities. It not only addresses the stumbling blocks encountered by those attempting to start a business, but it approaches those issues through standard business principles. Barriers that might be encountered are explained and various options are presented for overcoming them. This teaching could be perceived by some Indigenous communities as favouring government imposed laws that overrule their informal leadership structures. However, knowledge and understanding are the keys to moving forward.Explanations of the governances, laws, Native rights, and differences between Nations and non-Indigenous people are well presented. This background provides an understanding as to why there are obstacles and differences and opens the mind to possibilities that avail themselves for Indigenous people within the business world. History has taught Indigenous peoples to see themselves as segregated from other Canadians, when in fact they need to see themselves as a real part of the modern world and as self-sustaining and productive contributors to the economy.On page 30, the authors state that "A goal shared by most Indigenous communities in Canada is for their lands to be places where community members-their own citizens-want to live". It is my experience that traditionalists often view education and success in the outside business world as threats to the preservation of culture and identity. Often, young people who have obtained a good education and work off the reserve are drawn back into the isolation of their reserve and traditional practices because elders tell them "to shed the ways of the white world".... a step backwards. Derek's story in chapter four is a great motivational example of success that can be experienced while living on a reserve. Stories like his can help initiate positive thinking in young Native entrepreneurs. Important benefits and economic advantages are shown for both those on-reserve and off-reserve. Business financing, training, business plans and mentors are discussed - all important points necessary when starting any business. Old stereotypical beliefs that "an Indigenous person cannot get financing to help start a business" are put to rest when options for help are made known with real examples.Fear of change is real (41). Self-government agreements allow Aboriginal governments substantial land-management authority. However, they are often not finalized due to the lingering mistrust of past government influences (23). Traditional chiefs compete with the formal chief-and-council system imposed by the Indian Act (42). Even so, the growing youth population on reserves must be taught to see business success and ambition as non-threatening and the way to become self-determining: "Motivations by parents and elders must change from the 'Wards of State' past attitudes that relied on transfer payments." "They cannot isolate themselves into their traditions."There is a limited understanding of Aboriginal circumstances by non-Aboriginal firms and individuals (69). …

The Canadian Crown's constitutional duty to consult aboriginal peoples has been extensively canvassed - but the accommodation arm of that duty has not been elaborated on in case law with the Courts ordering additional negotiations with affected peoples.

This paper covers project approvals, connected to Alberta issued before December 31, 2017, to ascertain what, if any, affects the incorporation of proposed Aboriginal accommodation measures had on the conditions attached to those project approvals.  A set of standard approval conditions for projects in Alberta has been developed - to provide guidance for the Courts, industry, Crowns and Indigenous Peoples living in Canada.

In this paper, the author looks at the impact of the policy of federal recognition on a Los Angeles basin Native community: the Gabrielino Tongva. The first section, the literature review focuses on the difficulties of defining “indigenousness” in the academic and political realms, as well as looking at Native scholars’ conceptualization of this unique and multifaceted identity. After a consideration of the theoretical framework of the study, the crossroads between anthropology and public policy analysis, the author presents the tools she used in her study, namely: participant observation, key-informant interviews, and the analysis of published documents and personal files. The section ends with a review of ethical concerns pertaining to doing research with indigenous people.
The historical section comprises an analysis of archives and published works about the Tongva and the federal recognition process. Starting by a brief report of major policies that have impacted Native American rights in the U.S. and the evolution of government relations with indigenous communities, the author looks at the legacy of the Tongva people in L.A. today, paying special attention to past efforts at obtaining federal recognition and political divides within the tribe. The analysis is structured according to the different levels of recognition that the author perceived through her research. “Capital R”, or federal recognition is explored through its impact on the individual and the group, and followed by an account of current efforts towards community recognition – “lower-case r.” The paper ends on recommendations for future policies and a personal reflection about the research and its results.

Cet ouvrage collectif est le premier consacré au défi que pose au Québec, mais aussi à d’autres sociétés, la demande autochtone de reconnaissance de l’adoption coutumière. Phénomène largement inconnu de la société majoritaire, l’adoption, ou le transfert, d’enfant selon la coutume autochtone est néanmoins restée une réalité bien vivante dans plusieurs communautés. Le système juridique québécois n’a pas à ce jour validé le régime autochtone d’adoption. La question de sa reconnaissance fait toutefois dorénavant l’objet d’un dialogue constructif entre les autochtones, l’État et la société civile. Cet ouvrage vise à éclairer les enjeux juridiques, mais aussi sociaux et culturels, de ce dialogue alors que la perspective d’une reconnaissance de l’adoption coutumière se dessine plus clairement que jamais.

Des experts universitaires, juristes et anthropologues, ainsi que des avocates de terrain travaillant au sein des communautés autochtones ou pour la protection des droits et libertés de la personne, expliquent au lecteur en quoi consiste l’adoption coutumière autochtone, comment elle se démarque du modèle dominant, quelles sont les justifications de sa reconnaissance et les problèmes soulevés par celle-ci. Certains modèles existants de reconnaissance sont aussi présentés pour faciliter la comparaison. Universitaires, professionnels et praticiens des domaines juridique, administratif et social trouveront dans cette collection d’études les clefs d’une meilleure compréhension d’un important dossier susceptible de conduire le Québec sur le chemin d’un pluralisme juridique mieux assumé.

This paper considers the relationship between the Charter of Rights and Freedoms and Indigenous self-determination in the context of constitutional reconciliation in Canada. It begins by reviewing case law and legal scholarship on the application of the Charter to Aboriginal governments, with a particular focus on the debates over the interpretation of section 25, which stipulates that Charter rights cannot "abrogate or derogate" from Aboriginal and treaty rights. I show that, while different options have been suggested for how the Charter could be interpreted in the case of a conflict between Charter rights and Aboriginal rights, each of these possibilities creates problems of its own. Fundamentally, the seemingly irresolvable tensions that emerge between the various interpretations of section 25 reflect a deeper problem that it is necessary for a project of constitutional reconciliation to address: the underlying assumptions of Crown sovereignty and the place of Indigenous legal cultures in Canadian federalism. Ultimately, the paper argues that the Charter does have a role in the articulation of a nation-to-nation relationship between Canada and Indigenous peoples because it imposes a duty on courts to develop interpretations that are cognizable within Indigenous legal traditions.

To predict what is on the horizon of the Métis legal landscape, we can look to jurisprudence on First Nations’ rights, given that Métis rights cases are typically ten to fifteen years behind those of First Nations. With the release of the Supreme Court of Canada’s decision in Tsilhqot’in, the next big issue in Métis law may be Métis title. Scholars have doubted the ability of Métis to establish Aboriginal title in Canada for two reasons: first, Métis were too mobile, and second, Métis were too immobile. This paper critically analyzes these positions and argues that the case for Métis title in Canada is a strong one. As such, governments in Canada would do well to focus on resolving outstanding Métis title claims.

This essay compares the different institutional mechanisms that have been set up by three major federations – Australia, the United States and Canada - to accommodate aboriginal peoples’ claim to self-government in order to draw lessons that will help Canada in moving forward with the recognition and implementation of aboriginal self-government. I will compare those mechanisms through the theoretical lens of federalism, by looking at criteria such as the division of competences among constitutive units, central authority and aboriginal governing institutions, the design of the aboriginal governing structures, the objectives this design is meant to achieve, as well as the participation of aboriginal peoples within central and constitutive institutions. Through this exercise, I hope to identify ways in which the inherent flexibility of federalism will allow to fulfill and respect the right to internal self- determination and self-government of aboriginal peoples.

Bois-Brûlés is a translation of the book by the same name that was awarded the 2020 "Prix de Canada" for the best French-language book receiving funding from the Federation for the Humanities and Social Sciences' (FHSS) Awards to Scholarly Publications Program. Immediately following the announcement, the Indigenous Advisory Circle of the FHSS resigned in protest, pushing the FHSS to release a statement distancing itself from the jury's decision.

Opposition to the authors' research by Indigenous peoples continued throughout 2020, when the four provincial Mi'kmaw Councils and the Métis National Council wrote a public letter to the SSHRC protesting the funding agency's awarding of a $203,999 Insight Grant to Malette, Bouchard, and anthropologists Denis Gagnon and Siommon Pulla for research that supports the political claims of a self-proclaimed Métis group in New Brunswick. The well-documented and active opposition to the authors' research by Indigenous scholars and governments means that reviewing this book requires careful attention.

At first glance, one may be impressed by the number and range of excerpts from archival documents identified by the authors in Bois-Brûlés. Nonetheless, what is at issue is that the authors' historical method eschews rigour for political expediency. Every time authorities in the nineteenth century use either "métis," "halfbreed" or "bois-brûlés" to describe a mixed-race individual, they automatically become the founders of a distinct Métis community in a region north of Ottawa, regardless of their family life, cultural and linguistic practices, historical experience, and sense of self. The result of their approach is that First Nations people-in this case, Algonquins, whose territory spans the Ottawa River watershed-are erased from the historical record.

What follow are two salient examples of the type of evidence that animates the book's approach: on page 116, there is an image that first appeared in the magazine Opinion publique in 1882, with the caption, "Winter house of Noui Icipaiatik, Algonquin Métis." In their subsequent analysis, the authors draw two key conclusions based on the image and caption. First, they claim that the use of the term "Algonquin Métis" by ...

In this short response to Daniels v. Canada, we set out to accomplish two tasks. First, we provide an overview of the decision, with a focus on clarifying its limited reach. In particular, we distinguish between jurisdictional questions under section 91(24) of the Constitution Act, 1867, which Daniels addresses directly, and Aboriginal rights as encoded in section 35 of the Constitution Act, 1982, which is outside the
reach of Daniels. Second, after confronting the confusion brought forth by Daniels, we examine several different cases of nascent organizations in Québec claiming Aboriginal rights as either self-declared Métis or non-status Indians, and analyze some of their responses to the Daniels decision. We proceed to argue that in their reliance on antipathy towards Indigenous peoples, these organizations exemplify settler nativist tactics that ultimately undermine Indigenous self-determination.

The honour of the Crown requires good faith negotiations to resolve land claims of Indigenous peoples in Canada, and litigation is not consistent with the ethos of reconciliation.  Negotiations require a collaborative approach and must include mechanisms to address power imbalances. Treaties are essential to creating a just foundation for Crown sovereignty and for determining how Canada and sovereign Indigenous peoples share jurisdiction. Courts best promote the objective of reconciliation by enforcing the Crown’s obligation to negotiate and providing remedies for failing to meet this obligation. Substantive terms governing the treaty relationship must be determined though negotiations between political representatives, not courts. At the same time, courts must scrutinize Crown conduct to ensure constitutional compliance. In the absence of treaties, courts can temporarily use the de facto doctrine to uphold constitutionally deficient laws. The Crown has the onus of demonstrating that the rule of law requires the continued application of this doctrine. Combined with an enforceable duty to negotiate, this will mitigate the imbalance in bargaining power, will add to the Crown’s incentives to negotiate, and will bring the process closer to the principles of the United Nations Declaration on the Rights of Indigenous Peoples.

This paper argues that liberal democratic theorists like Habermas and James can support increased political recognition and inclusion within Canadian democracy.  However, such theories fall short of supporting full Indigenous emancipation or addressing the immorality of including Indigenous peoples within the polity of Canada in the first place and in fact they are destructive to Indigenous peoplehood rights because Indigenous rights are interpreted and understood as akin to individual human rights which can be unilaterally diminished by the state.

This paper investigates how the classical Westphalian model of the state has set, and continues to set, the boundaries of Aboriginal treaty interpretation. It argues that the conceptual presuppositions of this model have served to distinguish the treaties with Aboriginal peoples from international treaties. It maps out how these presuppositions are built into the Canadian case law on Aboriginal treaty interpretation and goes on to point out that these presuppositions do not fit the historical facts. By drawing out the conceptual underpinning of this thread, this paper shows how the Aboriginal treaties (as documents of inter-societal law) present a conceptual challenge to the Westphalian model that renders it inapplicable to the Canadian context and calls for a plurinational model of the state as an alternative.

Resume: The authors review the basis of Metis legal traditions as derived from Plains Indian customary law and social control mechanisms. The underlying values, principles and basic concepts of Metis legal traditions are discussed. First we examine the customary law of the Plains Cree and Plains Ojibwa as it developed in the Old Northwest of North America. Second, there is an examination of Metis customary law as it developed in the same area.

This essay charts the shifting assemblage of the conduct of state, corporate, and Indigenous authority through four historical moments: mercantilism, settler colonialism, Indigenous resurgence, and corporate reconciliation. With reference to Gitxsan territories, it makes a series of interrelated arguments. The development of colonial territorial claims and regimes of governance overlapped pre-existent and ongoing Indigenous territorial relationships. The historical division between the political and economic domain reshaped the relationship between state and corporate authorities, the state deferring to corporate actors to manage relations in the economic domain. The conduct of state and corporate authorities has constrained and modified the exercise of
Indigenous jurisdiction. Nevertheless, Indigenous resurgence has opened space for renegotiating the colonial legal order, including relations between extractive resource companies and Indigenous authorities. Emergent corporate practices of contracting with Indigenous authorities over development, however, reflect a reconfiguration rather than rupture of the settler colonial legal order. Corporate-Indigenous agreements rely upon colonial modes of organizing lawful political and economic conduct, and continue to block more radical and anti-colonial expressions of Indigenous jurisdiction. To expand possibilities for articulating forms of Indigenous jurisdiction that refuse the categories of
colonial political economy, it is necessary to problematize the relationship between colonial state and corporate authority.

In its recent decisions in Tsilhqot'in Nation and Grassy Narrows, the Supreme Court of Canada has significantly altered the position of Indigenous peoples within the structure of Canadian federalism. This article sets out to investigate the basis for the Court's jurisdiction to change this structure. Its approach is historical, as it covers judicial treaty interpretation from St Catharines Milling to Grassy Narrows. By contextualizing the most recent change in light of the last 250 years of treaty making, we can see how the notion of Crown sovereignty has become entangled with the Westphalian model of the state (i.e., the state as a politically self-contained and legally autonomous unit for a single "people" or "nation") and how this entanglement has served to set the boundaries of treaty interpretation. By drawing out how these legal fictions continue to inform the way in which the courts have interpreted treaties, we can begin to explore the possibilities that have been hiding in plain sight. Namely, that the treaties (as documents of inter-societal law) present a conceptual challenge to the Westphalian model and its coupling together of the terms "nation" and "state." More specifically, the treaties challenge this coupling by pluralizing the idea of the nation, which, in turn, requires us to reimagine the structure of the state. This decoupling of nation and state brings us back to a deeper engagement with the idea of federalism in Canada. This means that the treaties are constitutional documents that offer us a way to reimagine both what Canadian federalism could be and how this particular case could assist in reimagining a post-Westphalian international order.

Since the Jay Treaty of 1794, indigenous groups in the United States and Canada have both enjoyed the right of “free passage” across the U.S.-Canadian border.  The treaty protects and provides a secured means of transportation and travel via the Mississippi River for all citizens of the U.S. and Canada, a former British colony. However, from a Native American development perspective, the rite of passage, trade, and commerce of resident U.S. native groups with Canada and Mexico, respectively as riparian  and littoral  states to the United States, has been under-utilized by Native Americans. This paper argues that the current United States and international legal framework provides for much more use of connected U.S. watercourses by Native Americans and greater movement and trade across the Canada-U.S. border than the groups are currently utilizing.

Through an examination of the Supreme Court of Canada’s decision in R. v. Powley (2003), I argue that the Canadian state plays a significant interpretive role in defining Métis identity within the Canadian public discourse. Further, the reactions to this decision by the Canadian public, Métis and otherwise, reveal the processes by which Métis and other Aboriginal persons continue to navigate cultural dispossession within the historical context of Canadian colonialism.

The Enbridge Northern Gateway pipeline (NGP) is a proposed twin pipeline system running from near Edmonton, Alberta, to a new proposed marine terminal in Kitimat, British Columbia to export petroleum and import condensate.  This pipeline either directly or indirectly affects the asserted or established rights of close to one hundred Aboriginal groups in Canada.  Indeed, after an initially meager consultation with 44 First Nations within an 80 km radius of the pipeline, Enbridge has now sent out 92 letters to different Aboriginal groups inviting consultation.

Ultimately it is the National Energy Board (NEB) that is responsible for providing the regulatory permissions to construct the pipeline.  The NEB, in this instance has been tasked as a Joint Review Panel, with powers pursuant to the National Energy Board Act and the Canadian Environmental Assessment Act.  The panel is therefore responsible for reviewing the environmental impacts of the proposal, as well as whether it is in the public interest.  A significant part of this mandate is Aboriginal consultation, and fulfilling what is generally referred to as the ‘honour of the Crown’.  This means that the panel must assess the impact of the pipeline on asserted and established aboriginal rights.

In a flurry of recent cases, the courts have been considering the content and meaning of ‘consultation’.  After treaty rights have been settled, what is the obligation of the Crown?  Does the Crown have the duty to consult, or is this purely the obligation of the company pursuing the project?  Is there a duty to accommodate?  Are tribunals such as the NEB the appropriate forum for Aboriginal consultation? If accommodation is impossible should treaty nations have the power to ‘veto’ the project?

This paper will examine the ongoing Enbridge Northern Gateway process in light of these difficult and contentious issues.  This paper will ultimately ask whether, in a post treaty world, is consultation enough?

In the 1990s the Supreme Court of Canada developed two models for reconciling the demands for internal self-determination. The first was put forward in R. v. Sparrow and it sets out a Charter-like approach to Aboriginal rights in s. 35 of the Constitution Act, 1982. The second can be found in the Secession Reference. We argue that these models contradict one another. While the court has worked to preserve the coherence of the constitutional order, they have done so by depending upon a categorical distinction between Aboriginal rights and the right of self-determination. This distinction between Indigenous peoples and sub-state national groups is based on 19th century colonial legal fictions regarding the legal standing of uncivilized peoples. This dependency on colonial legal fictions has left the court in the unhappy position of attempting to encourage negotiations between Indigenous peoples and the Crown while continuing to use colonial frameworks that ensure that Indigenous peoples cannot address the actual basis of the conflict. We provide put forward a critical reassessment of the Court’s understanding of the constitutional order by exploring the foundations of these two processes of reconciliation. We believe that once the similarities and differences of these cases are seen clearly, they offer a clear and judicially navigable route between colonialism and constitutionalism. In short, we suggest that once the colonial legal fictions are removed the model for reconciliation set out in the Secession Reference provides a meaningful path forward in the project of decolonizing the Canadian constitutional order.

This article identifies an innovative procedural approach that recognizes the mental health impacts of sacred site loss for Indigenous peoples in environmental assessment. Drawing on two recent environmental assessments, the paper explores the consideration of sacred site loss in environmental assessment from a risk perspective as problematic but argues that technocratic approaches to risk may be helpful in addressing constitutional frameworks that use consequentialist decision-making

This article addresses the Supreme Court’s recent decision in Manitoba Metis Federation v. Canada (Attorney General), the Court’s interpretation of section 31 of the Manitoba Act, 1870, and the ways in which the ruling seems guided by, or at least concurs with, the works and opinions of Thomas Flanagan. The author highlights various cases which have dealt with Métis rights, established canons of statutory interpretation, Crown obligations, opposing scholarly views, and the distinction between historical contextual analysis and historical legal analysis. In doing so, the
author argues that the decision is essentially an invocation and resuscitation of the “empty box” doctrine. This doctrine serves both to recognize Métis rights and revoke them of any tangible substance that such recognition might bring, and seemingly
obfuscates the plain meaning rule of interpretation applied to the section 31 phrase: “towards the extinguishment of the Indian Title.”

The Economist recently reported, "Australians should soon get the chance to vote on [a] constitutional amendment concerning aboriginal rights…, in some way acknowledging aborigines as the first Australians. But just how far it should go is a matter of intense debate." A “First Nations National Constitutional Convention” at Uluru put forward the proposal in May 2017, when delegates called for "Makarrata"—"coming together after a struggle"—accomplished by a "First Nations voice enshrined in the constitution."
The Uluru Statement reproduces sovereignty conundrums. It asserts, "Aboriginal and Torres Strait Islander…sovereignty…has never been ceded or extinguished, and co-exists with the sovereignty of the Crown." The Statement then asks, "How could it be otherwise?" But, I ask, how can Aboriginal sovereignty—from "time immemorial"—coexist with British sovereignty created 200 years ago? What does co-existing sovereignty mean?

"ANU’s Mary Spiers Williams breaks down the findings of a cost-benefit analysis of the Yuendumu Mediation and Justice Committee, an initiative that draws upon traditional Warlpiri dispute-resolution practices, and in doing so extracts a financial argument not just for local and grounded responses as solutions for problems in communities, but also for justice reinvestment and diversion across the board." Editor, ILB.