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

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.

ABSTRACT The purpose of this thesis is to assess the Crown’s Constitutional duty of consultation and its application on the holders of Treaty rights. Indigenous legal and Constitutional orders are the underpinning of the consensual Treaties. They were negotiated by sovereign nations through mutual consent and established a distinct Constitutional authority establishing rights, responsibilities and rules of coexistence. Their implementation is a Crown Constitutional obligation. This thesis argues that the duty to consult jurisprudence reveals systemic colonial problems in the common law Treaty rights paradigm by colonial interpretation, unilateral abridgement and justified infringement of the consensual Treaty. Further, judicial and politically created doctrines of the honour of the Crown and reconciliation are rendered meaningless when used as part of the ongoing colonial paradigm and abridgement of Treaties. This thesis argues that Canada must enter a post-colonial era by giving content to Indigenous legal and Constitutional orders by implementing Treaty through Treaty Constitutionalism. This requires Canada to undertake a Constitutional paradigm shift to accord the sacred and inviolable Treaties their proper place as foundational instruments in the building of Canada. This means, as well, that the only forum for proper consultation on the numbered Treaties is through Constitutional conferences with full and equal participation of Treaty First Nations.

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 Ontario Federation of Anglers and Hunters (OFAH) is an influential sport/interest group that has a long history of advocacy and involvement with policies and management related to the conservation of wildlife and outdoor recreation. Since the 1990’s, the OFAH have been outspoken with their criticisms towards particular Indigenous treaty hunting and fishing rights, co-management agreements, and land claims which are perceived to threaten conservation, future recreational opportunities, and the outdoor economy. Using semi-structured interviews with 20 Indigenous and non-Indigenous respondents and a content analysis of the OFAH’s official documents, this thesis analyzes and compares the views surrounding treaty rights between the OFAH leadership and ordinary hunters and fishers inside and outside the organization. Discourse Analysis, Group Position Theory, and Colour Blind Racism theory were used to flesh out how the meanings and perceived legitimacy of treaty rights are constructed and negotiated, and whether opposition to Indigenous harvesting rights reflects a reactionary response to defend settler-Canadians’ sense of superiority, privileges, and access to resources. The results showed that the OFAH and 55% of the respondents expressed feelings of concern, resentment, and in some cases opposition, revealing an established sense of group position. Although the OFAH leaders and 45% of the respondents displayed varying and limited degrees of support for treaty rights, the general pattern showed how OFAH leaders and respondents drew on similar repertoires with arguments and justifications based on equality, fairness, and a concern for wildlife conservation in order to criticize and/or oppose treaty rights. Consequently, these criticisms directly and indirectly work to define and redefine treaty rights and Indigenous treaty hunters and fishers in a negative manner. This case shows how resentment of and opposition to treaty rights within a settler colonial context embodies a perceived threat to settlers’ sense of group position and the status quo. / Thesis / Master of Arts (MA) / The Ontario Federation of Anglers and Hunters (OFAH) is an influential organization that has criticized Indigenous peoples’ treaty hunting and fishing rights and land claims for allegedly threatening conservation, recreational opportunities, and the outdoor economy. This thesis analyzes and compares the views surrounding treaty rights between the OFAH leadership and ordinary hunters and fishers inside and outside the organization. Interviews with 20 (Indigenous and non-Indigenous) respondents and a review of the OFAH’s official sources showed that OFAH leaders and 55% of the respondents expressed feelings of concern, resentment, and opposition. Although OFAH leaders and 45% of the respondents displayed limited degrees of support for treaty rights, the general pattern showed how they drew on similar arguments based on equality, fairness, and a concern for wildlife to criticize and/or oppose treaty rights revealing a defensive reaction to maintain their privileges and access to resources.

abstract: Natural resources management is a pressing issue for Native American nations and communities. More than ever before, tribal officials sit at the decision-making tables with federal and state officials as well as non-governmental natural resource stakeholders. This, however, has not always been the case. This dissertation focuses on tribal activism to demonstrate how and why tribal sovereignty, self-determination, and treaty rights protection are tied closely to contemporary environmental issues and natural resources management. With the Klamath Tribes of southern Oregon as a case study, this dissertation analyzes how a tribal nation garnered a political position in which it could both indirectly influence and directly orchestrate natural resource management within and outside of its sovereign boundaries. The Klamath Tribes experienced the devastating termination policy in the 1950s. Termination stripped them of their federal status as an Indian tribe, the government services offered to recognized tribes, and their 1.2-million-acre reservation. Despite this horrific event, the Klamaths emerged by the 2000s as leading natural resource stakeholders in the Klamath River Watershed, a region ten times larger than their former reservation. The Klamaths used tools, such as their treaty and water rights, and employed careful political, legal, and social tactics. For example, they litigated, appropriated science, participated in democratic national environmental policy processes, and developed a lexicon. They also negotiated and established alliances with non-governmental stakeholders in order to refocus watershed management toward a holistic approach that promoted ecological restoration. This study applies spatial theory and an ethnohistorical approach to show how traditional values drove the Klamaths’ contemporary activism. From their perspective, healing the land would heal the people. The Klamaths’ history illuminates the active roles that tribes have had in the institutionalization of the federal self-determination policy as federal agencies resisted recognizing tribes and working with them in government-to-government relationships. Through their efforts to weave their interests into natural resource management with state, federal, and non-governmental stakeholders, the Klamaths took part in a much larger historical trend, the increased pluralization of American society. / Dissertation/Thesis / Doctoral Dissertation History 2015

Indigenous cartography is based on a relational epistemology that works within a system where "place" and "ways of knowing" are intimately tied to Native communities' notions of kinship, oral tradition, and traditional ecological knowledge acquired over the millennia. It brings to life a place where mapping and geography cease to be simply Cartesian coordinates on a Euclidean plane and instead become storied landscapes. Indigenous cartography can be described as "radical" because it represents a departure from traditional Western ways of mapping and affirms an Indigenous political, economic and cultural sovereignty. As an intensely political act, Indigenous cartography can be an important tool used by Indigenous people to assert sovereignty in a bottom-up approach to land claims, in the management of cultural resources, and even to claim human remains for repatriation and reburial. If Indigenous groups wish to successfully utilize geospatial technologies as legal strategies, it will first require the development of the necessary infrastructure and training of Geographic Information Systems (GIS) specialists from within. In much the same way that colonial practices of the past worked to achieve hegemony through the making of political and cultural boundaries, Indigenous cartography can work to dismantle these same colonial boundaries. A theory and methodology of Indigenous cartographic praxis is in use among some First Nations in British Columbia. However no "best practices" yet exist for the Indigenous use-and-mapping discipline. Consequently in the United States, Indigenous mapping is still considered an emerging approach. Therefore, can American Indian political and cultural sovereignty be supported by the implementation of Indigenous geospatial technologies? This dissertation will examine the British Columbian model and distill principles that can be successfully implemented by U. S. Native American communities who wish to develop capacity for this emerging geospatial technology based on the success of the First Nations model.

The purpose of this thesis is to discuss the constitutional right of the Métis to hunt in the Canadian legal consciousness in the four levels of court that heard the Powley case and comment on the judicial approach and observations. After a comparative analysis of the precedent setting Powley decision, a brief examination is undertaken of two recent cases regarding Métis rights in Canada: Laviolette and Willison. <p>Ultimately, the purpose of this research has been to show the treatment of Métis and First Nations Aboriginal rights have not been treated equally and to confront the challenges that this analysis raises. Section 35 of the Canadian Constitution has not provided the protections to Aboriginal rights that one would expect. In order to make changes to the legal system I have identified some fundamental problems with Aboriginal law in Canada associated with the identification of the source of those rights. <p>Further, I have made some suggestions on the approaches that could be taken to change the direction of the Supreme Court of Canada regarding its interpretations of Métis rights.

The purpose of this thesis is to discuss the constitutional right of the Métis to hunt in the Canadian legal consciousness in the four levels of court that heard the Powley case and comment on the judicial approach and observations. After a comparative analysis of the precedent setting Powley decision, a brief examination is undertaken of two recent cases regarding Métis rights in Canada: Laviolette and Willison. <p>Ultimately, the purpose of this research has been to show the treatment of Métis and First Nations Aboriginal rights have not been treated equally and to confront the challenges that this analysis raises. Section 35 of the Canadian Constitution has not provided the protections to Aboriginal rights that one would expect. In order to make changes to the legal system I have identified some fundamental problems with Aboriginal law in Canada associated with the identification of the source of those rights. <p>Further, I have made some suggestions on the approaches that could be taken to change the direction of the Supreme Court of Canada regarding its interpretations of Métis rights.