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Thesis (Th. M.)--Western Conservative Baptist Seminary, 1987. / Abstract. Bibliography: leaves 130-133.

After falling out of favor during the twentieth century, originalism has returned as a compelling and popular interpretive theory. Modern originalism is typically associated with political conservatives. In Reexamining Originalism, I argue that a progressive form of originalism is both more faithful to the Constitution and more similar to early originalism than conservative originalism. The key difference is that progressive originalism respects the Constitution's status as secondary law, whereas conservative originalism is overly concerned with preserving primary applications of law.

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 general theme of the thesis is a broad examination of the nature and structure of the constitution of the Northwest Territories, including the relationship of the Territorial Government to the Federal Government and an examination of some possible future developments in the area.<p> Following a review of the constitutional history of the Northwest Territories and a summary of relevant legislation, past and present, Chapter Two contains an examination of the status of the Government of the Northwest Territories, concluding that it is a government in the true sense and not simply an agency of the Federal Government. It has powers similar to those exercised by the Provincial Governments but differs from them in its lack of responsible government and its continuing legal and practical domination by the Federal Government.<p> Some examination is made of the forces promoting change in the constitutional structure and status of the Territories. The two dominant forces examined are the existence of major non-renewable resources, particularly hydrocarbons, and the pressure for settlement of native land claims and native self-determination. An examination of the current law concerning control of natural resources and Federal Government policy statements indicates that the Federal Government has, and will endeavor to retain, virtually complete control over all non-renewable resources with a significant economic impact or national demand.<p> A general review of some of the proposals for the settlement of native claims leads to the conclusion that the claims will be settled in the same manner as previous claims by native people in Canada but will be coupled with changes in the governmental structures of the Territories, consistent with Canadian political traditions, designed to promote and guarantee the involvement of native people in government.<p> It is concluded that, for the most part, the constitution of the Northwest Territories will continue to evolve towards responsible government and full participation by the Territories as a member of the Confederation. That evolution will follow a pattern similar to that established by the development of the prairie provinces with the only significant differences being found in the role of native people in the political life of the community and the strengthened determination of the Federal Government to retain control of non-renewable resources for an indefinite period.

This thesis argues that the current Canadian approach to freedom of religion is inconsistent with Canada’s approach to multiculturalism. It begins by placing Canada’s multiculturalism legislation into the broader intellectual context of the leading political theories on the governance of diverse populations. It then examines the Canadian case law regarding freedom of religion, arguing that the prevailing rights-based approach produces consequences inconsistent with Canada’s legislated commitments to multiculturalism. It posits that the individualism of rights-based analysis, the pressure to frame religion in pre-defined ways, and the tendency of courts to speak in the language of tolerance are all troublesome. Further, it argues that when disputes are framed in terms of rights, meaningful dialogue is less likely and compromises are difficult to achieve. It then proposes an alternative, “difference-based” approach to disputes involving religion, which provides a framework more consistent with Canada’s multicultural ideals.

The aim of this thesis is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. I review the jurisprudence of South Africa’s Constitutional Court to illustrate the merits of this approach.

The aim of this thesis is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. I review the jurisprudence of South Africa’s Constitutional Court to illustrate the merits of this approach.

This thesis argues that the current Canadian approach to freedom of religion is inconsistent with Canada’s approach to multiculturalism. It begins by placing Canada’s multiculturalism legislation into the broader intellectual context of the leading political theories on the governance of diverse populations. It then examines the Canadian case law regarding freedom of religion, arguing that the prevailing rights-based approach produces consequences inconsistent with Canada’s legislated commitments to multiculturalism. It posits that the individualism of rights-based analysis, the pressure to frame religion in pre-defined ways, and the tendency of courts to speak in the language of tolerance are all troublesome. Further, it argues that when disputes are framed in terms of rights, meaningful dialogue is less likely and compromises are difficult to achieve. It then proposes an alternative, “difference-based” approach to disputes involving religion, which provides a framework more consistent with Canada’s multicultural ideals.

This thesis examines the consequences of taking a conversational approach to legal interpretation. This is meant to contrast with and improve the argument given in Ronald Dworkin's Law's Empire.