This thesis explores the significant contribution Walter Rudnicki (1925-2010) made to the pursuit of social justice for Indigenous people in Canada through his use of archival records. Rudnicki took on the role of archivist by acquiring, organizing, disseminating, and keeping records that document government-Indigenous relations. Totaling 90.25 metres in extent, the Walter Rudnicki fonds at the University of Manitoba Archives & Special Collections is an impressive private collection amassed in order to make injustice visible. As a federal public servant working to develop innovative government policies with Indigenous people between the 1950s and 1970s, Rudnicki had bitter personal experience with document creation and access to records practices in the Government of Canada that thwarted Indigenous aims. Thereafter, he stressed that accessing and archiving records play an indispensable role in protecting Indigenous peoples’ interests. He spent the rest of his life creating and employing an archive that would be used in advocacy for Indigenous rights. / October 2016

In this dissertation I argue for the need to develop a Metis Critical Legal Theory, or “MetCrit”, a theory that is particular to the cultures, issues and concerns of Metis people. Suggestions towards the development of MetCrit are proposed in light of the difficulties of Metis rights claimants in British Columbia following creation of the “historic community connection” test in R v Powley, the leading case on the constitutional protection of Metis rights in Canada. Misconceptions about BC Metis history and about Metis communities generally have resulted in legal decisions that hold there are no historic Metis communities in BC, and thus no communities capable of meeting the Powley test. The BC situation reveals that Powley, as it is currently interpreted, cannot adequately deal with the realities of Metis history or with Metis conceptions of community, and that the community connection test itself is flawed. MetCrit is proposed as a possible lens through which to examine BC Metis rights cases in light of the historiography of the Metis of BC, and through which to critique the Powley court’s attempt to concretize Metis community identities. I suggest that MetCrit could provide spectrums of space for avoiding some of the dualities that are reflected in Canadian legal and historical accounts of Metis people and communities. / Graduate / 2020-04-19

The repatriation of Aboriginal human remains is still a debated issue in some forums. However, among many Canadian museums and other institutions, repatriation of ancestral remains is no longer a debate. It has become part of an obligation institutions have to ‘decolonize’ their collections. While the question concerning whether repatriation is ‘the right thing to do’ has been recognized in most North American museums, trying to decide the best method to return the remains is still undecided. In examining how perceptions of human remains have changed in the Anglo-European, Haida and Ojibway cultures, an explanation of the importance of repatriation emerges. This thesis analyses how changes in perception have impacted the acceptance of repatriation among museums and other institutions and produced a discourse concerned with returning all Aboriginal remains back to Native communities. By analysing the experiences and opinions of 14 stakeholders in repatriation (collected during in-person and telephone conversations as well as open-ended questionnaires) I was able to garner a general opinion on the status of repatriation in Canada. It was found that the current method Canadian institutions employ to repatriate Aboriginal human remains adequately addresses the issue. Flaws are found in all methods of repatriation; however, presently, negotiations based on mediation and not litigation produce more valuable consultation relationships, more cooperation between institutions and Native groups, and a more beneficial repatriation experience.

This thesis takes as its focus R. v. Guerin, [1984] 2 S.C.R. 335 and seeks to assess its possibilities as the source of a legal principle to guide the constitutional review of the aboriginal and treaty rights protected by s. 35 of the Constitution Act, 1982.<p>In Chapter 1, the decision and the commentary to which it gave rise is discussed. Chapter 2 reviews the history of the law of aboriginal rights with a particular focus on the Indian law of the United States. Chapter 3 reviews Canadian Native law with a particular stress on the trust obligation. In Chapter 4 the language of trusts is reviewed and the influence of International law is canvassed. After a brief discussion of fiduciary law, the chapter closes with a suggested basis for a constitutional fiduciary principle. Chapter 5 opens with a discussion of s. 35 of the Constitution Act, 1982. The theory is then proposed.<p>The theory would find its origin in the common law recognition of the precontact sovereignty of the aboriginal peoples and its denial by the colonizing nation at the time of colonization. The assumption of legislative power by the Crown came with an obligation, acknowledged by the Crown, that it must use its legislative power so as to protect and promote the interests of the aboriginal peoples in order to assist them through the process of colonization. It is suggested that s. 35 of the Constitution Act, 1982 may have made that obligation justiciable and may require the courts to check the exercise of its legislative power to make certain that any negative effect on the aboriginal peoples is justified. The standard, being a fiduciary one, would be high.<p>The thesis closes with an application of the theory to some past and present issues in Native law.

This thesis takes as its focus R. v. Guerin, [1984] 2 S.C.R. 335 and seeks to assess its possibilities as the source of a legal principle to guide the constitutional review of the aboriginal and treaty rights protected by s. 35 of the Constitution Act, 1982.<p>In Chapter 1, the decision and the commentary to which it gave rise is discussed. Chapter 2 reviews the history of the law of aboriginal rights with a particular focus on the Indian law of the United States. Chapter 3 reviews Canadian Native law with a particular stress on the trust obligation. In Chapter 4 the language of trusts is reviewed and the influence of International law is canvassed. After a brief discussion of fiduciary law, the chapter closes with a suggested basis for a constitutional fiduciary principle. Chapter 5 opens with a discussion of s. 35 of the Constitution Act, 1982. The theory is then proposed.<p>The theory would find its origin in the common law recognition of the precontact sovereignty of the aboriginal peoples and its denial by the colonizing nation at the time of colonization. The assumption of legislative power by the Crown came with an obligation, acknowledged by the Crown, that it must use its legislative power so as to protect and promote the interests of the aboriginal peoples in order to assist them through the process of colonization. It is suggested that s. 35 of the Constitution Act, 1982 may have made that obligation justiciable and may require the courts to check the exercise of its legislative power to make certain that any negative effect on the aboriginal peoples is justified. The standard, being a fiduciary one, would be high.<p>The thesis closes with an application of the theory to some past and present issues in Native law.

One of the defining characteristics of early European colonial endeavours within the Americas is the discursive practice through which Indigenous peoples were transformed into ideological subjects whose proprietary rights and powers to be self-determining were subordinated to those of settler peoples. In this thesis, it is argued that a similar process of misrepresentation and disenfranchisement occurs when it is suggested that the material and financial poverty plaguing many rural First Nations can be eradicated through their direct and extensive involvement in natural resource extraction industries based on capital driven market economies. As is shown by the author’s participatory research conducted with members of Skownan Anishinaabek First Nation involved in local food production practices, the key to overcoming cycles of dependency is not simply the monetary benefit engendered by economic development projects. Rather it is the degree to which community members recognize their own nationhood oriented value systems and governance principles within the formation and management of these initiatives. The thesis concludes with an examination of one such community led enterprise in Skownan, which ultimately coincides with the political aims of the Indigenous food sovereignty movement.

Over the last 30 years, the concept of culture has gained increased ground in Canadian jurisprudence on Aboriginal and Treaty rights under section 35 of the Constitution Act, 1982. This thesis focuses on the gendered nature of the court’s culturalist method of interpreting and adjudicating s.35, arguing that it acts as a containment strategy with respect to Aboriginal and Treaty rights generally, and Indigenous women’s rights in particular. Specific focus is given to the frequent and extreme rights infringements experienced by Indigenous women in Canadian contexts. This project foregrounds Indigenous narratives, Treaty-based and otherwise, as a way of inspiring a s.35 framework that extends well beyond the confines of culture and provides more equitable, comprehensive and substantive protection for a broad range of Aboriginal and Treaty rights within Canadian legal and political institutions. / Graduate

The repatriation of Aboriginal human remains is still a debated issue in some forums. However, among many Canadian museums and other institutions, repatriation of ancestral remains is no longer a debate. It has become part of an obligation institutions have to ‘decolonize’ their collections. While the question concerning whether repatriation is ‘the right thing to do’ has been recognized in most North American museums, trying to decide the best method to return the remains is still undecided. In examining how perceptions of human remains have changed in the Anglo-European, Haida and Ojibway cultures, an explanation of the importance of repatriation emerges. This thesis analyses how changes in perception have impacted the acceptance of repatriation among museums and other institutions and produced a discourse concerned with returning all Aboriginal remains back to Native communities. By analysing the experiences and opinions of 14 stakeholders in repatriation (collected during in-person and telephone conversations as well as open-ended questionnaires) I was able to garner a general opinion on the status of repatriation in Canada. It was found that the current method Canadian institutions employ to repatriate Aboriginal human remains adequately addresses the issue. Flaws are found in all methods of repatriation; however, presently, negotiations based on mediation and not litigation produce more valuable consultation relationships, more cooperation between institutions and Native groups, and a more beneficial repatriation experience.

It has been accepted in the historical discourse that a direct link existed between the participation of Aboriginal people in the Second World War and a new political consciousness of Aboriginal people in Canada generally, and Saskatchewan specifically, immediately after the war. This conclusion has been based on the fact that as soldiers, Aboriginal veterans had gained much experience. They had traveled to various parts of the world, had been treated as equals while fighting alongside non-Aboriginal soldiers and had been celebrated as liberators of Europe. On the return to Canada, they found that the situation of Aboriginal people had not changed. Unwilling to accept the substandard treatment for themselves and their people, it is argued, that the Aboriginal veterans became the focal point for Aboriginal rights' movement. There is in fact no evidence to support the notion that the Aboriginal veterans had a direct role in igniting Aboriginal peoples' political consciousness immediately after the war. In the first five years after the war, Aboriginal veterans were more concerned with readjusting to civilian life. They were young men who possessed few adult civilian life experiences and virtually no political experience. The emphasis on Aboriginal veterans as the political leaders after the war ignores the efforts of the existing leaders who had been involved in politics for many years. Although Aboriginal veterans did not directly influence the political climate, their existence as a group was crucial to the shifting attitude of the Canadian public toward Aboriginal people. The portrayal of Aboriginal veterans by the news media as "progressive Indians" due to their contributions to the war effort, impressed upon Canadians the need for change in the relationship between the Canadian government and Aboriginal people. By the 1950s, as the more socially, economically and to a certain extent, geographically mobile the veterans became the more socially and politically active they became. It is the contention of this research that the impact of their war experience is discernible in two ways. First, immediately after the war, the presence of Aboriginal veterans led to Canadian's re-evaluation of the relationship between Aboriginal people and Canadian government. Second, in the post-war era, Aboriginal veterans became active agents of social and political change. In sum, Aboriginal veterans became, first passive catalysts and, later, engines for social and political change.

It has been accepted in the historical discourse that a direct link existed between the participation of Aboriginal people in the Second World War and a new political consciousness of Aboriginal people in Canada generally, and Saskatchewan specifically, immediately after the war. This conclusion has been based on the fact that as soldiers, Aboriginal veterans had gained much experience. They had traveled to various parts of the world, had been treated as equals while fighting alongside non-Aboriginal soldiers and had been celebrated as liberators of Europe. On the return to Canada, they found that the situation of Aboriginal people had not changed. Unwilling to accept the substandard treatment for themselves and their people, it is argued, that the Aboriginal veterans became the focal point for Aboriginal rights' movement. There is in fact no evidence to support the notion that the Aboriginal veterans had a direct role in igniting Aboriginal peoples' political consciousness immediately after the war. In the first five years after the war, Aboriginal veterans were more concerned with readjusting to civilian life. They were young men who possessed few adult civilian life experiences and virtually no political experience. The emphasis on Aboriginal veterans as the political leaders after the war ignores the efforts of the existing leaders who had been involved in politics for many years. Although Aboriginal veterans did not directly influence the political climate, their existence as a group was crucial to the shifting attitude of the Canadian public toward Aboriginal people. The portrayal of Aboriginal veterans by the news media as "progressive Indians" due to their contributions to the war effort, impressed upon Canadians the need for change in the relationship between the Canadian government and Aboriginal people. By the 1950s, as the more socially, economically and to a certain extent, geographically mobile the veterans became the more socially and politically active they became. It is the contention of this research that the impact of their war experience is discernible in two ways. First, immediately after the war, the presence of Aboriginal veterans led to Canadian's re-evaluation of the relationship between Aboriginal people and Canadian government. Second, in the post-war era, Aboriginal veterans became active agents of social and political change. In sum, Aboriginal veterans became, first passive catalysts and, later, engines for social and political change.