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Archive For Entries On Aboriginal Law

Canada (Attorney General) v Cold Lake First Nations: Transparency is Not a Top-Down Approach

First Nations and the Harper Government First Nations in Canada have reason to be hopeful in light of national and legal developments this past week. In the federal election on 19 October 2015, some First Nations communities saw their voter turnout increase by as much as 270%. This increase in turnout happened despite the Conservative […]

Live from the Supreme Court of Canada: Canada’s Forgotten People Have Hope in Harry Daniels v The Queen

The Metis and non-status Indians of Canada have fallen through the cracks of this country. Yesterday, the Supreme Court of Canada livestreamed their hearing of Harry Daniels v The Queen [Daniels], a case that may bring some relief to Canada’s “forgotten people” (in the words of Ian Cowie, one of the appellants’ witnesses). Daniels has […]

A Web of Instinct: Kahkewistahaw First Nation v Taypotat

Kahkewistahaw First Nation v Taypotat, 2015 SCC 30, is the Supreme Court of Canada’s (“SCC”) most recent decision on equality. Coming in at a brief 35 paragraphs, this decision does not alter the law of section 15 of the Charter in any substantial way. Using the test laid out in Quebec v A, [2013] 1 SCR 61, Justice Abella […]

R v Kokopenace: Missed Opportunity for Action

Overrepresented in Jails, Underrepresented in Juries Since the 1970s, Grassy Narrows First Nation reserve has become synonymous with mercury poisoning and the associated health effects. By any measurement, the residents of the reserve have had a rough deal handed to them. In 2007, Grassy Narrows was also the site of a murder, the details of […]

Foreign Affairs Prerogative and the Federal Court: Hupacasath First Nation v Canada

Ever since the Supreme Court of Canada confirmed the Crown’s duty to consult with Aboriginal peoples in Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511, courts have been tasked with determining precisely when the duty is triggered, and against which government actors the duty applies. In Hupacasath First Nation v Canada […]

Aboriginal Underrepresentation in Jury Roll Construction: Her Majesty the Queen v Kokopenace

The Supreme Court of Canada’s (“SCC”) upcoming decision in Her Majesty the Queen v Kokopenace [Kokopenace] will clarify what steps provinces need to take in order to ensure that Aboriginal persons facing criminal charges are afforded the chance to have their cases tried by a representative jury.

Grassy Narrows v Ontario: A Legal Battle Against Logging Lost, The Political Fight Continues

In Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48, the Supreme Court of Canada (“SCC”) unanimously determined that Ontario has the jurisdiction under the Crown to take up land covered by the Ontario Boundaries Extension Act, SC 1912, c 40, s 2, Treaty No. 3 (1873) (“Treaty 3”), thus limiting First Nation […]

Aboriginal Status, Mandatory Minimums, and Prosecutorial Discretion: R v Anderson

Back in June, the Supreme Court of Canada (“SCC”) dealt with the issue of whether Crown prosecutors are constitutionally required to consider the Aboriginal status of accused persons when deciding to pursue a mandatory minimum sentence in R v Anderson, 2014 SCC 41 [Anderson]. The respondent, Frederick Anderson, was charged with impaired driving pursuant to section […]

Revisiting Aboriginal Title Part III: SCC Clarification in Tsilhqot’in Nation v British Columbia

This comment is the third in a series detailing the ongoing development of Aboriginal title in Canada. Part I and Part II focused on the British Columbia Court of Appeal decision William v British Columbia, 2012 BCCA 285 [William]. This third part aims to provide an exegesis and analysis of the Supreme Court’s resolution of the appeal from William in Tsilhqot’in Nation v British Columbia, 2014 […]

Revisiting Aboriginal Title Part II: An Alternative View of Sufficient Occupancy

This commentary is the second in a series detailing the ongoing development of Aboriginal title in Canada. It follows a discussion of the British Columbia Court of Appeal’s decision, and is drawn from a larger essay, available in full, on SSRN. Part I of this series rehearsed and critiqued the BCCA’s decision in William. The goal […]