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

The sentencing provisions of section 718.2(a)(i) of the Criminal Code of Canada adopt the view that Canadians have the right to live in society without being subjected to hatred. The research has shown, however, that section 718.2(a)(i) misses the opportunity to address hate-motivated offences directed toward Aboriginal people. This is particularly troubling given the high rates of violence experienced by Aboriginal people and Aboriginal women. It is now widely acknowledged that Euro-centric laws and discriminatory policies flourished in Canadian society in an attempt to dismantle formerly organized Aboriginal nations and their strong structures of governance, diverse cultures of language, practices and traditions. Although later laws were entrenched to transform oppressive relationships, this thesis reveals there remains significant gaps in understanding hate motivated crimes directed toward Aboriginal people and Aboriginal women. The patterns of violence directed toward Aboriginal women substantiate the finding that for some men, Aboriginal women are considered prey. However, the sparse data available does not distinguish Aboriginal women as a specific class of people subjected to hatred. Reviewing the current case law, the thesis looks closely at: proving hate motivated offences, ideology, slurs, knowledge, degree of motivation, identity of the victim, the accused and issues surrounding denial of culpability. Several important broad findings and trends of the courts are drawn from the examined jurisprudence and literature. This thesis revels there is little case law giving meaningful attention to the hatred of Aboriginal people. Aboriginal people are rarely found to be victims of hate-motivated crimes. Aboriginal people and Aboriginal women are, with few exceptions, a missing category of protection under section 718.(2)(a)(i) in both the written provisions and case law. The direct and specific inclusion of Aboriginal women as a protected category of protection under s. 718.2(a)(i) and a definition provision of hatred would be consistent with principles of the constitution, human rights law and the provisions of the Criminal Code. Most importantly, it may assist in addressing gaps in addressing hate-motivated crimes directed toward Aboriginal people and Aboriginal women.

This thesis employs postcolonial theory, a case study methodology, semi-structured interviews, and archival research to understand Mi’kmaq and Maliseet peoples’ sporting experiences in the Maritimes region of Canada. Two publishable papers comprise this thesis. The first paper analyzes the obstacles the participants faced and the positive experiences they had in sport. The second paper examines the ways in which the concept of “difference” was reproduced and challenged through the participants’ involvement in mainstream and all-Native sporting environments. Together, these papers bring much needed scholarly attention to Mi’kmaq and Maliseet peoples’ involvement in sport in the Maritimes, while they also make a contribution to the existing body of literature concerning Aboriginal peoples’ sport participation in Canada.

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