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Copyright of Ottawa Law Review is the property of University of Ottawa, Faculty of Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Canadian Review of Sociology is the property of Wiley-Blackwell and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article examines mineral rights and claim staking in northern Canada, with a focus on settler colonialism and how liberal understandings of property are embedded in the legal geography of the right to explore for minerals. The history of these legal systems is explained through the 'free-entry' principle understood as the right to stake a mineral claim without consulting with private landholders or Indigenous peoples. Free-entry debate highlights how ideologies of property are assumed neutral through staking regulations. Based on an analysis of interviews with key informants involved in mining regulation, I analyze the geographic stratification of land into two categories, above and below the surface, as an avenue to understand how dominant ideologies of property reveal a critical site of contestation. [ABSTRACT FROM AUTHOR]

The Canadian government commenced the treaty-making process with the Indigenous peoples of the Athabasca region in 1870, motivated by the Geological Survey of Canada’s reports that petroleum existed in the area. This, in addition to the discovery of gold in the Klondike region, spurred an influx of unregulated settlement and resource extraction in the north. The trajectory of this history has continued to bring the Canadian settler state – and its oil industry stakeholders – into negotiation with indigenous Nations over the Athabasca tar sands. Currently contested is Enbridge Inc.’s Northern Gateway project, which aims to move oil from the Edmonton, Alberta area by way of two massive pipelines covering 1,170km to Kitimat, British Columbia, where it would then be transported to Asia-Pacific markets by super-tankers. This paper examines the widespread criticism of the project from Indigenous and environmental groups, as well as responses to these objections by public/private partnerships between Enbridge, federal and provincial governments and their national security and counter-terrorism forces. It argues that recognising and naming contemporary forms of white settler colonialism, including these types of neoliberal partnerships, is required for new relations to become possible. [ABSTRACT FROM PUBLISHER]

In Canada today, the review and approval of federal linear energy infrastructure projects is a contentious matter. Tension is driven in part by the complex regulatory regime, and this complexity is intensified by the federal government's responsibility to fulfill obligations associated with the rights of Indigenous peoples. Th e federal legal regime is evolving rapidly and is part of a broader policy debate pertaining to energy and climate policy, and interprovincial pipelines in particular. Th is article presents the current legal landscape and then discusses emerging changes in federal law and policy. In doing so, it discusses the rights of Indigenous peoples, summarizes the associated varied legal terrain across the country, describes the legislative scheme for review and approval of federally regulated linear energy projects, and provides in-depth discussion of the duty to consult and accommodate. Th e fi nal part of the paper turns to the current evolving context, setting out recent changes the federal government has put forward for law reform. While acknowledging that there is an important continuing need for analysis and commentary with a normative approach to the fi eld of Aboriginal law and the revitalization of Indigenous law, this article takes the approach of focusing on the current content of federal law in Canada as it pertains to Indigenous peoples. [ABSTRACT FROM AUTHOR]

Constitutional conflicts over energy infrastructure are not confined to questions of law. Th ey are also an object of political conflict among strategic actors pursuing their interests. Th is paper examines how different actors in pipeline disputes have sought to gain strategic advantage by advocating particular positions on constitutional arguments about regulatory jurisdiction, Indigenous rights, and participation in regulatory proceedings. Examples will be taken from the controversies over Line 9, Energy East, Northern Gateway, and the Trans Mountain Expansion Project. [ABSTRACT FROM AUTHOR]

In R v Bernard, 2017 NBCA 48, the New Brunswick Court of Appeal upheld the lower courts' reasoning that a Mìgmaw man living in the traditional Mìgmaq hunting territory of St. John, New Brunswick could not exercise his Aboriginal rights to hunt because he could not prove he descended from the particular subgroup of Mìgmaq who were at St. John at the time of contact with Europeans. In deciding so, the Court of Appeal rejected the argument that the Mìgmaq, as a nation, are the appropriate rights holders and ought to be the body deciding who can exercise the Mìgmaw right to hunt in the province. This argument was rejected based on the evidence of an expert historian who testified that Mìgmaq could not be a "nation" because they had a decentralized form of government and lacked a "Super Chief." The case also exhibits undertones of floodgate fears of over-hunting as a consequence of finding the Mìgmaq nation to be the right-holders. This, however, ignores the role Mìgmaq laws and protocols will play in responsibly regulating Mìgmaq hunting and avoiding overuse of resources (not to mention the Crown's ability to address conservation issues through the Sparrow justification framework). This article tells the story of the Bernard case and provides critical commentary on it. [ABSTRACT FROM AUTHOR]

In 2003, the Supreme Court of Canada (SCC) released its unanimous reasons for judgment in R v Powley. Powley was--and remains--the high court's only consideration of Métis rights, as "[A]boriginal rights," protected by section 35 of the Constitution Act, 1982. In addition to setting out the legal test for the establishment of Métis section 35 rights, Powley slayed a multitude of Métis rights denial dragons that had emerged over the generations, including two of the dragons most often relied on by governments: (1) that difficulties in identifying Métis rights-holders, and, (2) competing Métis representation claims made Crown inaction in relation to Métis rights justifiable. Instead of accepting these arguments, the SCC in Powley recognized a positive Crown duty to negotiate with the Métis. The author, who is a Métis lawyer that has been involved in much of the Métis rights litigation and negotiations that have occurred over the last seventeen years, argues that Powley and this duty have been effectively leveraged by rights-bearing Métis communities from Ontario westward to secure several significant negotiated agreements as well as keep most of the slayed Métis rights denial dragons at bay. This article goes on to review a disconcerting 2016 decision of the Alberta Court of Queen's Bench on Métis consultation, which, if applied further, has the potential to re-invigorate these most duplicitous dragons. In Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta, while the trial judge recognized that Métis harvesting rights had been accommodated in the Fort Chipewyan area, the court accepted the Alberta government's arguments that difficulty in identifying the "proper rights-holder" and the potential of competing Métis claims were justifications for Crown inaction and its position of consulting with no Métis whatsoever. The author argues that the court's flawed reasoning in Fort Chipewyan turns Powley and the Crown's positive duties owing to the Métis on their head as well as has the potential to see the two above-noted Métis rights denial dragons take flight again. [ABSTRACT FROM AUTHOR]

Environmental assessment within the process of regulatory review is recognized as the preferred means for carrying out the duty to consult and accommodate Aboriginal rights in administrative decisions over proposed resource development. Recent evidence suggests that integrating the duty to consult into National Energy Board (NEB) proceedings and subsuming the law of Aboriginal consultation under principles of administrative justice have not advanced the goal of reconciliation. This article considers whether the statutory mandate of the National Energy Board requires it to have sufficient regard to Aboriginal rights in a manner consistent with the adjudication of constitutional issues in administrative law. The article argues, through an examination of the Board's process and recent decisions of the Federal Court of Appeal, that there is good reason to revisit the Supreme Court of Canada's jurisprudence on the role of administrative expertise in effecting reconciliation in the NEB context. In particular, it submits that both reconciliatory and administrative objectives would be better served if the NEB were to perform a formal consultative role with Aboriginal claimants in accordance with prescribed constitutional standards. This would help to ensure that administrative actors reach rights-compliant decisions in the first instance and provide a more reliable basis for judicial deference to tribunal findings regarding Aboriginal rights. [ABSTRACT FROM AUTHOR]

The increasing ‘diversity’ of penal populations in most western countries over the past three decades raises questions as to the fairness and appropriateness of established penal programmes and practices. In some jurisdictions, penal policy-makers and administrators are being forced to deal with the implications of offender diversities, including race, ethnicity, gender, culture and religion, in policy and planning. In Canada, the pervasive over-representation of Aboriginal individuals in prisons has led to calls for change in how the corrections and parole systems deal with Aboriginal prisoners. This article examines the advent of one ‘culturally appropriate’ adaptation of the parole process, the Elder assisted hearing, introduced in 1992 by the Parole Board of Canada as a means of (1) addressing the problem of over-representation and (2) being responsive to Aboriginal difference. It shows that the ‘Aboriginalisation’ of parole hearing formats is by no means a straightforward process, and is illustrative of the broader challenges that racial, cultural and gender differences pose to contemporary penality. [ABSTRACT FROM AUTHOR]

The article explores the challenges to be faced by fetal alcohol spectrum disorder (FASD) affected aboriginal persons of Canada. Topics discussed include risks of criminal behavior in people suffering with FASD, legal scholarship provided to Canadian judges deciding suitable punishment for FASD offenders, and the role of non-custodial sentences to such offenders in preventing future criminal recidivism.

In this article, we argue that the Canadian land claims process is the product of a series of policies and laws directed at indigenous peoples which both denies them consent over the relinquishing of their lands, and is characterised by a lack of attention to the rights vested in indigenous peoples from colonial precedents. As a result, the contemporary Canadian land claims process does not measure up to the United Nations Declaration on Indigenous Peoples (UNDRIP) and other international human rights protocols. It does not meet even rudimentary standards in regard to providing informed consent, requiring indigenous peoples to extinguish their ownership of their lands, dividing indigenous peoples into configurations that are artificial and diminishing their negotiating power, and creating invidiously asymmetric responsibilities between the state and the indigenous party. Our analysis will principally be based on a reading of the Innu Nation Tshash Petapen (New Dawn) land claims agreement and the social and political contexts in which it is situated. We conclude from our readings that expedients used in the past to obtain indigenous peoples' lands and to circumvent the colonial laws governing relationships with indigenous peoples are still evident today in Canada. They survive as a kind of victor's justice worthy of the frontier. [ABSTRACT FROM PUBLISHER]

I argue that the interpretation of Section 15 of the Canadian Charter of Rights and Freedoms expressed by the Supreme Court in R v. Kapp is not entirely satisfactory. While the Court assumes that Sections 15(1) and 15(2) work together to combat discrimination, I show that many affirmative actions programs might be discriminatory within the meaning of Section 15(1). Moreover, I argue that the conflicts are internal to the concept of substantive equality itself. They partly reproduce the tensions between a politics of recognition and a politics of distribution. I suggest that such conflicts must be resolved in accordance with the principle of proportionality. Finally, I suggest that programs designed to ameliorate the conditions of Aboriginal people might find better ground in the concept of "aboriginal rights." [ABSTRACT FROM AUTHOR]

Copyright of Osgoode Hall Law Journal is the property of Osgoode Hall Law School and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)