Aboriginal Peoples and the Law
A Critical Introduction
Can Canada claim to be a just society for Indigenous peoples? To answer the question, and as part of the process of reconciliation, the Truth and Reconciliation Commission urged a better understanding of Aboriginal law for all Canadians.
Aboriginal Peoples and the Law responds to that call, introducing readers with or without a legal background to modern Aboriginal law and outlining significant cases and decisions in straightforward, non-technical language. Jim Reynolds provides the historical context needed to understand relations between Indigenous peoples and settlers and explains key topics such as sovereignty, fiduciary duties, the honour of the Crown, Aboriginal rights and title, treaties, the duty to consult, and Indigenous law. He also discusses key international developments such as the United Nations Declaration on the Rights of Indigenous Peoples. He concludes by considering major questions that need to be resolved, including balancing Aboriginal and non-Aboriginal rights and interests and the benefits and drawbacks of using either litigation or negotiation to resolve Indigenous issues.
This critical analysis of the current state of the law makes the case that rather than leaving the judiciary to sort out essentially political issues, Canadian politicians need to take responsibility for this crucial aspect of building a just society.
This book will find an audience among students taking both introductory and specialist courses in Aboriginal law, Indigenous studies, or the social sciences; lawyers with an interest in Aboriginal law; and journalists, government officials, business people, and other members of the public who want a better understanding of where the law stands today and where it should go in the future.
As an introduction, [Aboriginal Peoples and the Law] offers ample contextualization of contemporary developments within the law—including overviews of historical background, treaties, Crown sovereignty, and Aboriginal rights and title—while keeping legal jargon and technical analysis to a minimum. In its efforts to remain accessible to all readers, Aboriginal Peoples and the Law invites all Canadians to participate in this crucial national discourse.
As a lawyer with several decades behind me, I learned something on nearly every page. Most importantly, I appreciated Reynolds’s explanation of the context in which the law has been made through judges’ decisions and also of the relationships between the history and the present and between various sub-fields of Aboriginal law... My students, I believe, found Aboriginal Peoples a straightforward and easily-comprehensible explanation of the law that enabled them to get up to speed quickly and to begin to analyse current legal issues.
Law is fundamentally about relationships. Over the last 150 years, the Crown has used law as a tool of assimilation, colonization, subjugation, and cultural genocide. Over the next 150 years, Indigenous and Crown laws will be instruments of redress, reconciliation, and Indigenous nation building. Jim Reynolds helps us understand and navigate the complexities of the relationship between pre-existing Aboriginal sovereignty and assumed Crown sovereignty. This matters to all Canadians. We will all remain here. The sky won’t fall.
This is an excellent book. It offers a comprehensive and readable account of the law relating to Aboriginal peoples in Canada. Jim Reynolds’ gift for lucid explanation and analysis is apparent on every page. Whether you know very little or a great deal, you will learn from this book.
1 What Is Aboriginal Law?
2 Historical Background
3 Sovereignty and Aboriginal–Crown Relations
4 Aboriginal Rights and Title
6 Consultation, Accommodation, and Consent
7 Indigenous and International Law
8 A Just Society?
Notes; Cases Cited; Index
A Breach of Duty
Fiduciary Obligations and Aboriginal Peoples
Let Right Be Done
Aboriginal Title, the Calder Case, and the Future of Indigenous Rights
Aboriginal Justice and the Charter
Realizing a Culturally Sensitive Interpretation of Legal Rights
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