Can Aboriginal values be reconciled with Canadian jurisprudence? How important is gender in litigation strategy? What is the role of Aboriginal jurisprudences in the development of treaty and Aboriginal rights? Are Aboriginal claims purely legal in nature or do they involve broader issues of defining societal relationships? Can Canadian law and courts provide real justice for Aboriginal peoples?
The eleven contributors to this collection of essays present innovative ideas for advancing Aboriginal claims as seen from the perspective of Aboriginal and non-Aboriginal social scientists and legal scholars. Other legal and philosophical issues addressed include: do the decisions of the Supreme Court of Canada in Delgamuukw and Marshall advance Aboriginal claims or hinder them; how to ensure the interests of Aboriginal women are addressed; the relative merits of litigation versus negotiation; strategies for Aboriginal peoples interested in greater access to resources; the legal significance of continuity in proving Aboriginal claims; and possible legal arguments for ascertaining the date of Crown sovereignty, and for advancing Metis rights.
The mix of policy, philosophy, strategy, and legal arguments make this book valuable as a resource for thoughtful discussion, and action, on the future of Aboriginal claims. Some authors provide clear, innovative strategy and/or legal arguments for use in advancing Aboriginal claims, while others ask us to question how best to ensure all interests are well represented in so doing. First Nations leaders, government policy makers, social scientists, lawyers, judges, and anyone interested in the broader picture of Aboriginal issues will benefit from reading this book.
Published in cooperation with the Centre for Constitutional Studies, University of Alberta.
Kerry Wilkins is a Toronto lawyer and sometime adjunct professor of law at the University of Toronto, whose practice has focused in recent years principally on constitutional issues arising from the Canadian law about Aboriginal peoples. He has published articles on legal education, the division of federal-provincial powers, section 88 of the Indian Act, inherent rights of Aboriginal self-government, and the relationship between provincial capacity under the constitution and treaty and Aboriginal rights, and book reviews on a wider range of legal subjects.
Russel Barsh gained an interest in British imperial law at Harvard Law School. He has taught at the University of Washington, University of Lethbridge, and New York University. His areas of specialization include international law, traditional ecological knowledge, and issues of intellectual and cultural property. He has been involved with the international movement of Indigenous peoples at the United Nations, as well as the World Intellectual Property Organization and the World Trade Organization. In 2002, he returned to his intellectual roots in paleontology and ecology as founding director of the Center for the Study of Coast Salish Environments, a program in marine ecology sponsored by the Samish Indian Nation.
Larry Chartrand is currently director of the Aboriginal Self-Governance Program at the University of Winnipeg. Prior to this appointment, he was an associate professor of Law at the University of Ottawa. His main research efforts are in the field of Aboriginal rights, including self-government, treaty rights, Métis rights, Aboriginal health issues, and international human rights as they pertain to Indigenous peoples. He obtained his B.Ed. from the University of Alberta in 1986 and his LL.B from York University in 1989, was called to the Bar of Upper Canada in 1990, and obtained his LL.M from Queen's University in 2001. He is the past president of the Indigenous Bar Association and an arbitrator for the Sahtu Dene and Métis Land Claim Agreement.
Gordon Christie is a professor of Law at the University of British Columbia, teaching in the areas of tort law, jurisprudence, and Aboriginal law, and conducting research primarily in the field of Aboriginal law. He has taught at a number of institutions in Canada and the United States, in both faculties of Law and departments of Philosophy. He is Inuvialuit.
Gurston Dacks received his B.A. from the University of Toronto and his Ph.D. from Princeton University. He is professor of Political Science and associate dean of Arts (Research) at the University of Alberta, on whose faculty he has served since 1971. For the past twenty-five years, he has studied the political development of the Canadian North and in particular constitutional issues, division of the Northwest Territories, and Aboriginal claims and self-government. More recently, his research has broadened to examine issues related to Aboriginal rights and governance in southern as well as northern Canada.
Born to the Bear Clan of the Chickasaw Nation and Cheyenne Tribe in Oklahoma in 1944, James (Sákéj) Youngblood Henderson is married to Marie Battiste, a Míkmaw educator. They have three children. In 1974, he received a Juris doctorate in law from Harvard Law School and became a law professor who created litigation strategies to restore Aboriginal culture, institutions, and rights. During the constitutional process (1978-1993) in Canada, he served as a constitutional advisor for the Míkmaw nation and the National Indian Brotherhood-Assembly of First Nations. He is now working at the Native Law Centre of Canada, College of Law, University of Saskatchewan. His latest books are Aboriginal Tenure in the Constitution of Canada (2000), Protecting Indigenous Knowledge and Heritage (2000), and Indigenous Jurisprudence and Aboriginal Rights and Treaty Rights in the Constitution of Canada.
Leroy Little Bear is a member of the Small Robes Band of the Blood Indian Tribe of the Blackfoot Confederacy. After graduating from the University of Utah with a Juris Doctor degree in 1975, he was a professor in the Native American Studies department at the University of Lethbridge. After his retirement in 1997, he was director of the Harvard University Native American Program until 1999. He has served as a consultant and as a member of various committees, commissions, and boards, including the Task Force on the Criminal Justice and Its Impact on the Indian and Métis Peoples of Alberta in 1990-91. He is the author of many articles, including "A Concept of Native Title," which has been cited in a Supreme Court of Canada decision, and has coauthored books including Pathways to Self-Determination, The Quest for Justice, and Governments in Conflict with Dr. Menno Boldt and Dr. Anthony Long. His current interests include North American Indian science and Western physics and exploring Blackfoot knowledge expressed in songs, stories, and landscape.
Christopher P. Manfredi, Ph.D., is professor of Political Science at McGill University, specializing in Canadian public law and comparative legal systems. He is the author of Feminist Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund (2004), Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (2d ed., 2001), and The Supreme Court and Juvenile Justice (1997). His research on constitutional and legal issues has been published in many prestigious journals.
Kent McNeil teaches at Osgoode Hall Law School in Toronto. He specializes in Indigenous rights in Canada, Australia, and the United States. He is the author of numerous works on this subject, including Common Law Aboriginal Title (1989) and Emerging Justice? Essays on Indigenous Rights in Canada and Australia (2001). He advises First Nations on Aboriginal land claims, treaty negotiations, and fiduciary obligations.
Patricia Monture is Mohawk from Grand River Territory. Her legal education was completed at Queen's University and Osgoode Hall Law School. She is also a graduate of the University of Western Ontario. At present, she is a full professor in the department of Sociology at the University of Saskatchewan. Her academic interests are varied and include issues of constitutional law and Aboriginal peoples, the rights of women, critical race theory, and other issues of social justice, including the rights of prisoners.
Leonard Rotman, B.A. (Toronto) (With Distinction), LL.B. (Queen's), LL.M. (Osgoode Hall), S.J.D. (Toronto), of the Ontario Bar, is a professor at the Faculty of Law, University of Windsor. He is the author of Parallel Paths: Fiduciary Doctrine and the Crown-Native Relationship in Canada (1996), co-editor of Aboriginal Legal Issues: Cases, Materials & Commentary (1998) and Canadian Corporate Law: Cases, Notes & Materials (second edition, 2001), author of "Remedies" (with J. Berryman) and "Fiduciary Law" in F. Woodman and M. Gillen, eds., The Law of Trusts: A Contextual Approach (2000), and author of numerous law review articles covering topics in the Aboriginal law, fiduciary law, trusts, and corporate law fields. An inaugural recipient of the University of Windsor Award for Excellence in Scholarship and Research, he has received awards and grants from the Social Science Federation of Canada, the Foundation for Legal Research, the Centre for Innovation Law and Policy, and the Law Societies of Alberta and Ontario. He has been cited by broadcast and print media, by various courts, including the Supreme Court of Canada, acts as a peer reviewer for a variety of law and law-related journals and book publishers, and serves as a consultant to the private bar and government.
Introduction / Kerry Wilkins
Part I: Validating Aboriginal Experience
Aboriginal Paradigms: Implications for Relationships to Land and Treaty Making / Leroy Little Bear
The Right of Inclusion: Aboriginal Rights and/or Aboriginal women? / Patricia Monture
Aboriginal Jurisprudences and Rights / James Youngblood Henderson
Part II: Substantive Arguments
Indigenous Rights and the Lex Loci in British Imperial Law / Russel Lawrence Barsh
Continuity of Aboriginal Rights / Kent McNeil
Métis Aboriginal Title in Canada: Achieving Equality in Aboriginal Rights Doctrine / Larry N. Chartrand
Part III: Practical Consequences and Choices
Fear, Hope and Misunderstanding: Unintended Consequences and the Marshall Decision / Christopher P. Manfredi
"Let Us Face It, We Are All Here to Stay" But Do We Negotiate or Litigate? / Leonard I. Rotman
Aboriginal Resource Rights After Delgamuukw and Marshall / Gordon Christie
First Nations-Crown Relations in British Columbia in the Post-Delgamuukw Era / Gurston Dacks
Conclusion: Judicial Aesthetics and Aboriginal Claims / Kerry Wilkins
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