In Sparrow, the Supreme Court of Canada stated that ss. 35(1) is “a solemn commitment that must be given meaningful content” the objective of which is to ensure that Aboriginal rights “are taken seriously.” Despite such a clear directive from the highest court, in Manitoba Métis Federation v. Canada [2007], MacInnes J. of the Queen’s Bench of Manitoba seemed incapable of taking seriously the Aboriginal title of the Métis under s. 31 of the Manitoba Act, 1870, and in no way thought of its explicit recognition as ‘a solemn commitment that must be given meaningful content’. For his part, if Scott C.J. of the Manitoba Court of Appeal was able to find a ‘cognizable Aboriginal interest’ in the expression ‘Indian title’, and thereby recognize to some extent Métis Aboriginal rights, he seemed incapable of conceiving such interests as title. This thesis is basically an attempt to ‘take seriously’ the common law Aboriginal title of the Métis. In order to do so, it first looks at the treatment of the concept of Indian title and the Royal Proclamation, 1763, in the lower courts throughout the infamous St. Catharine’s Milling and Lumber case. Subsequently, the existing common law doctrines of inherent Métis rights, those of the derivative rights doctrine, the empty box doctrine and the distinct Aboriginal people doctrine are all found to be inadequate to the task of providing cogency to the ‘constitutional imperative’ that was evoked in Powley. A fourth doctrine is therefore proposed, that of a Métis Autochthonous or Indigenous rights doctrine. In light of this, it is argued that the recognition of the ‘Indian’ title in s. 31 was not a mere ‘political expediency’ but is rooted in the underlying constitutional principle of the protection of minorities. Furthermore, insofar as the ‘Indian’ title of the Métis is taken seriously, it can be seen as having been extinguished through the federal power over ‘lands reserved for Indians’ under ss. 91(24). The legal implication is that they were, in the logic of the times, basically enfranchised ‘Indians’. Finally, by applying the grid established in Sioui for determining the existence of a ‘treaty’, it is argued that s. 31 is a ‘treaty’ or land claims settlement within the meaning of s. 35.

In Sparrow, the Supreme Court of Canada stated that ss. 35(1) is “a solemn commitment that must be given meaningful content” the objective of which is to ensure that Aboriginal rights “are taken seriously.” Despite such a clear directive from the highest court, in Manitoba Métis Federation v. Canada [2007], MacInnes J. of the Queen’s Bench of Manitoba seemed incapable of taking seriously the Aboriginal title of the Métis under s. 31 of the Manitoba Act, 1870, and in no way thought of its explicit recognition as ‘a solemn commitment that must be given meaningful content’. For his part, if Scott C.J. of the Manitoba Court of Appeal was able to find a ‘cognizable Aboriginal interest’ in the expression ‘Indian title’, and thereby recognize to some extent Métis Aboriginal rights, he seemed incapable of conceiving such interests as title. This thesis is basically an attempt to ‘take seriously’ the common law Aboriginal title of the Métis. In order to do so, it first looks at the treatment of the concept of Indian title and the Royal Proclamation, 1763, in the lower courts throughout the infamous St. Catharine’s Milling and Lumber case. Subsequently, the existing common law doctrines of inherent Métis rights, those of the derivative rights doctrine, the empty box doctrine and the distinct Aboriginal people doctrine are all found to be inadequate to the task of providing cogency to the ‘constitutional imperative’ that was evoked in Powley. A fourth doctrine is therefore proposed, that of a Métis Autochthonous or Indigenous rights doctrine. In light of this, it is argued that the recognition of the ‘Indian’ title in s. 31 was not a mere ‘political expediency’ but is rooted in the underlying constitutional principle of the protection of minorities. Furthermore, insofar as the ‘Indian’ title of the Métis is taken seriously, it can be seen as having been extinguished through the federal power over ‘lands reserved for Indians’ under ss. 91(24). The legal implication is that they were, in the logic of the times, basically enfranchised ‘Indians’. Finally, by applying the grid established in Sioui for determining the existence of a ‘treaty’, it is argued that s. 31 is a ‘treaty’ or land claims settlement within the meaning of s. 35.

The current framework for reconciliation is based on the Court’s accepted the Crown’s assertion of sovereignty, legislative power and underlying title. The basis of this is their interpretation of Section 91(24), which reads it as a plenary grant of power over Indians and their lands. This has led them to simply bypass the question of the inherent right of self-government and to generate a constitutional framework that amounts to little more than a proportionality check on the exercise of Crown sovereignty. I argue that if we are to find a meaningful reconciliation—and not simply one that is assigned by the logic of force that resides behind the unquestioned assumption of sovereignty—then we will need to address the history of sovereignty without assuming its foundations. My project sets out to expose the limitations of the current model by following the lines of descent and association that underlie the legal conceptualization of Aboriginal sovereignty. / Graduate / 2019-01-01

In Sparrow, the Supreme Court of Canada stated that ss. 35(1) is “a solemn commitment that must be given meaningful content” the objective of which is to ensure that Aboriginal rights “are taken seriously.” Despite such a clear directive from the highest court, in Manitoba Métis Federation v. Canada [2007], MacInnes J. of the Queen’s Bench of Manitoba seemed incapable of taking seriously the Aboriginal title of the Métis under s. 31 of the Manitoba Act, 1870, and in no way thought of its explicit recognition as ‘a solemn commitment that must be given meaningful content’. For his part, if Scott C.J. of the Manitoba Court of Appeal was able to find a ‘cognizable Aboriginal interest’ in the expression ‘Indian title’, and thereby recognize to some extent Métis Aboriginal rights, he seemed incapable of conceiving such interests as title. This thesis is basically an attempt to ‘take seriously’ the common law Aboriginal title of the Métis. In order to do so, it first looks at the treatment of the concept of Indian title and the Royal Proclamation, 1763, in the lower courts throughout the infamous St. Catharine’s Milling and Lumber case. Subsequently, the existing common law doctrines of inherent Métis rights, those of the derivative rights doctrine, the empty box doctrine and the distinct Aboriginal people doctrine are all found to be inadequate to the task of providing cogency to the ‘constitutional imperative’ that was evoked in Powley. A fourth doctrine is therefore proposed, that of a Métis Autochthonous or Indigenous rights doctrine. In light of this, it is argued that the recognition of the ‘Indian’ title in s. 31 was not a mere ‘political expediency’ but is rooted in the underlying constitutional principle of the protection of minorities. Furthermore, insofar as the ‘Indian’ title of the Métis is taken seriously, it can be seen as having been extinguished through the federal power over ‘lands reserved for Indians’ under ss. 91(24). The legal implication is that they were, in the logic of the times, basically enfranchised ‘Indians’. Finally, by applying the grid established in Sioui for determining the existence of a ‘treaty’, it is argued that s. 31 is a ‘treaty’ or land claims settlement within the meaning of s. 35.

In light of the recognition of continuing Indigenous sovereignty by the Supreme Court of Canada and the requirement that that sovereignty and de facto Crown sovereignty be reconciled within a shared constitutional order, Canada needs a new approach to negotiating the exercise of Indigenous sovereignty. Any new approach must be built around a coherent understanding of the Constitution as a whole, most importantly the constitutional principle of reconciliation and the other unwritten principles articulated by the Supreme Court of Canada in the Reference re. Secession of Quebec. The four unwritten principles which the Supreme Court of Canada identified in the Quebec Secession Reference do not represent a barrier to the exercise of Indigenous sovereignty, if interpreted in light of the reconciliation principle. Indeed, the principles of federalism and the protection of minorities support the protection of distinct Indigenous political and legal institutions. Because they are exercising a continuing sovereignty, rather than an aboriginal right as that term is currently understood under section 35, Indigenous peoples also need not return to traditional forms of governance in their entirety in a modern self-government regime; they may also adopt more or less of the Euro-Canadian forms with which they have become familiar as citizens of Canada, such that modern Indigenous institutions could be quite consistent with mainstream understandings of the four unwritten principles of the Constitutions. As with other institutions of governance, Indigenous peoples have long traditions of dispute resolution that they could draw upon in the context of the modern exercise of their sovereignty. Nor do Indigenous peoples need to return to these traditional methods in their entirety, either; again, they could adopt elements of Euro-Canadian legal traditions. There are numerous precedents around the world for Indigenous legal institutions that combine elements of Indigenous customs of dispute resolution and common-law judicial structures. What is important is that Indigenous peoples have the right to design their own institutions for the interpretation, as well as the creation, of law and the resolution of disputes if they are to exercise their sovereignty within the Canadian constitutional and political system as a third order of government. / Thesis (Master, Law) -- Queen's University, 2009-09-24 08:41:11.447

This dissertation is shaped by a concern with how the doctrine of Aboriginal and treaty rights in Canada can develop to meaningfully recognize Indigenous self-determination. A number of inherited concepts (e.g. law, sovereignty, state, jurisdiction, and territory) have constrained legal and political imaginations and supported a legal apparatus that confines Indigenous peoples to a subordinate place in the constitutional order. Drawing on scholarship on common law Aboriginal rights, legal pluralism, legal geography, legal history, and political theory, this work develops a novel legal and theoretical critique by historicizing the concepts courts have relied on in mediating Crown-Indigenous relations and demonstrating that the retrospective application of these concepts, which supports the subordination of Indigenous peoples in the present day, is empirically suspect. Using Canada’s Maritime provinces as an example, this is accomplished by describing in detail the legal pluralism that characterized the 17th and 18th centuries in the region, particularly how social and legal spaces were constituted by a plurality of legal and normative orders. By analyzing the territorial reach and subject matters of eight distinct legal systems that were operative in the region during this period, this work demonstrates that absolute jurisdiction through fixed territorial boundaries has never been an accurate way to describe Crown, or later state, authority in the region. Rather, the region’s legal spaces were constituted by a plurality of overlapping, entangled, and hybrid legalities that structured territorial jurisdiction in discrete and unique ways. This challenges Aboriginal rights doctrine that too often relies on unstated presuppositions about the effect of Crown assertions of sovereignty in retroactively applying conceptions of territorial jurisdiction that are tailored to meet the requirements of the contemporary nation-state and have the effect of minimizing Indigenous claims and supporting the unilateral authority of the state. The final chapter applies this legal-historical analysis to the present-day through an analysis of recent treaty fishing rights disputes in Mi’kma’ki/Nova Scotia. / Graduate

In 1987, the Supreme Court of the United States ruled in California v. Cabazon Band of Mission Indians. A landmark decision, the case carried significant ramifications for tribal sovereignty and the creation of the Native American gaming industry. In response to the decision, the United States Congress passed the Indian Gaming Regulatory Act the following year. Since the Supreme Court ruled in Cabazon, Native American gaming has grown into a multi-billion dollar industry and the most significant source of revenue for many tribes across the country. Given the complexity of Native American law and the controversial nature of casino gaming, the industry has resulted in many contentious legal battles between tribes and parties ranging from state governments to private corporations. As the Cabazon decision was the breakthrough for reservation gaming, this thesis will examine the Supreme Court’s rulings regarding tribal gaming and how they affected the Native American gaming industry and the doctrine of tribal sovereignty.

Colonialism is ongoing in Canada and continues to affect Indigenous-state relations in a number of political and social areas, including water governance. Few other studies link colonial and decolonizing concepts to Indigenous water governance including discussions of power as well as structural and political assumptions, which speak to systemic factors and barriers to increased Indigenous water sovereignty. The purpose of this study is to undertake an in-depth decolonial analysis of the dynamics occurring in a legal water management dispute between an Indigenous community and the Canadian state. More specifically, the goal of this investigation is to identify how ongoing colonial factors affect the Halalt First Nation’s sovereignty over their waters. To this end, the research question is: Using an Indigenous resurgence (IR) analysis, what does the Halalt First Nation v British Columbia (Minister of the Environment) (Halalt v BC) caselaw reveal about the state of Indigenous water sovereignty in Canada? I employ a case study methodology where I analyse the Environmental Assessment (EA) and legal court case of Halalt v BC. I seek to provide a decolonial perspective, so in this study I use an IR theoretical framework. I collect data through interviews with ten participants including three Band Council staff members involved in the Halalt v British Columbia EA and court case study. I analyse the findings using three Indigenous resurgence themes of transfer of power from the state to an Indigenous community, increased respect and use of Indigenous worldviews, and Indigenous self-determination in light of the primary data I collected via key informant interviews and case study participants. The data reveals that there was no evidence that Indigenous resurgence is taking place in the case study as per Halalt participants’ experience of the case study nor the other participants’ opinion of the case study. In this thesis, I advocate for decolonization in the form of increased Indigenous political authority for the Halalt and all Indigenous communities in Canada. / Graduate

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.

First Nations in Canada have long struggled to participate effectively in resource development decisions. In 2004, the Supreme Court established that the federal and provincial governments of Canada have a duty to consult First Nations in cases where their treaty rights, land claims, or traditions may be adversely affected by government decision-making or third-party development. To determine whether the duty to consult has made an impact on the empowerment of First Nations in these decisions, I assess three case studies using four criteria. This research finds that, while the duty to consult has made a positive impact on the empowerment of First Nations, it still does not go far enough in truly empowering communities to achieve sustainable development on their own terms. This study concludes that the duty to consult may be supplemented with Aboriginal self-government – signaling the potential for positive change in the empowerment of communities seeking environmental justice.