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Abstract Building on 'Five Linguistic Methods for Revitalizing Indigenous Laws,' this article explains and analyses six examples of implementation of the 'meta-principle' or 'word-bundle' linguistic method for Indigenous law revitalization. [...]

I. INTRODUCTION Although by-law powers giving First Nation band councils ('First Nation governments') the power to pass laws on a variety of subjects relating to reserve land and band members [...]

This article sketches out the idea of legislative reconciliation: the concept of governments in Canada using their legislative powers to recognize and protect the inherent rights of Indigenous peoples. Legislative reconciliation is needed because the existing approaches to the implementation of inherent rights — negotiation and constitutional litigation — have been insufficient on their own to bring about a mutually respectful relationship between Indigenous and non-Indigenous peoples. Despite the entrenchment of section 35 of the Constitution Act, 1982, state governments have not seen themselves as having a role in its implementation in the same way they do for Charter rights. In particular, Canadian governments have not felt compelled to legislate to promote and protect inherent rights. This is in tension with constitutionalism, the idea that governments ought to live their constitutions by respecting and promoting constitutional rights. For too long, Indigenous peoples have not benefitted from similar respect and promotion of their inherent rights, and this has caused them significant harm. Parliament has only recently started to embrace legislative reconciliation by passing the Indigenous Languages Act and An Act respecting First Nations, Inuit and Métis children, youth and families (FNMICYF Act) in 2019. However, a constitutional reference by Quebec places such initiatives in jeopardy. The province argues that federal legislation recognizing and promoting inherent rights is an unlawful attempt at constitutional amendment if it is not consented to by the provinces or goes beyond the limited interpretation given to section 35 by the Supreme Court of Canada to date. These arguments deeply misconstrue the nature of inherent rights and the roles of courts and governments in interpreting them. Courts do not create these rights, nor do they have a monopoly over interpreting them. Governments, particularly elected lawmakers, have an important role to play in interpreting and implementing these rights as well, just as they do with Charter rights. Here, I unpack the concept of legislative reconciliation and why it is needed and argue that, far from being unconstitutional, legislative reconciliation exemplifies the principle of constitutionalism, and ought to be robustly embraced by Parliament, as well as provincial and territorial legislatures, and encouraged by our courts. [ABSTRACT FROM AUTHOR]

Au Canada, l'interpretation des lois federales, territoriales ainsi que de certaines lois provinciales, imprimees et publiees dans les deux langues officielles du Canada, pose un defi considerable pour les juristes. [...]

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]