ALBERTA LAW REVIEW最新文献

{"title":"Adoption Constitutionalism: Anishinaabe Citizenship Law at Fort William First Nation","authors":"Damien Lee","doi":"10.29173/ALR2523","DOIUrl":"https://doi.org/10.29173/ALR2523","url":null,"abstract":"This article explores familial jurisdiction over citizenship, using the study of Anishinaabe citizenship practices in the Fort William First Nation, through the lens of adoption stories. The author highlights how families are able to use adoption to regulate citizenship, bringing new citizens into the nation, while also selecting those who do not belong. The familial system of affirmation is different than a Certificate of Indian Registration and requires collective action, rather than individual self-determination. Belonging at Fort William is further argued to not depend solely on blood quantum, Indian status, or band membership but, rather, depends on active community determination and accountability to the community on an on-going basis. Seen this way, adoption narratives reveal a citizenship order that challenges Canada’s claimed jurisdiction to discern who belongs with First Nations.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44751989","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Tin Ear of the Court: Ktunaxa Nation and the Foundation of the Duty to Consult","authors":"R. Hamilton, J. Nichols","doi":"10.29173/ALR2520","DOIUrl":"https://doi.org/10.29173/ALR2520","url":null,"abstract":"The recent Ktunaxa Nation decision of the Supreme Court of Canada provides an opportunity to discuss the fundamental legal presumptions that underlie the Crown’s duty to consult and accommodate Aboriginal peoples. The jurisprudence in this area has been based on a “thick” conception of Crown sovereignty as including legislative power and underlying title in relation to Aboriginal lands. This, in the Supreme Court’s view, justifies the possibility of the unilateral infringement of Aboriginal rights. This framework assumes that the relationship between the Crown and Aboriginal peoples is a sovereign-to-subjects one. This assumption, however, lacks a legal and factual basis. \u0000Conversely, Aboriginal peoples articulate their claims in the language of inherent jurisdiction within a nation-to nation relationship. If the Supreme Court acknowledged that the relationship between the parties is indeed nation-to-nation, the appropriate doctrine would no longer be a duty to consult and accommodate. Following the approach to a similar relationship outlined by the Supreme Court in the Secession Reference, the appropriate model would be a generative duty to negotiate. This article sets a path to a model that preserves the useful components of the duty to consult while providing a remedy to the distributional inequity in bargaining power created under the current framework, thereby opening avenues for effective conflict resolution.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43573855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reconciliation Through Relationality in Indigenous Legal Orders","authors":"Alan Hanna","doi":"10.29173/ALR2524","DOIUrl":"https://doi.org/10.29173/ALR2524","url":null,"abstract":"Canada’s reconciliation with Indigenous peoples and groups in Canada is an ambitious goal with little in the way of clear direction. Canadian courts have provided limited direction in their decisions, yet the result of litigation has imposed a concept of reconciliation based on First Nations remaining subordinate to state authority and interests. Reconciliation will be confounded without gaining a shared understanding with Indigenous peoples. Different Indigenous groups will have their own interpretation of what reconciliation may require to be successful. One approach to seeking common understandings is for Canadians to learnhow relationality operates as a function of disparate Indigenous legal orders. While substantive research into Indigenous legal orders is relatively new in Canadian scholarship, there is much knowledge to be gleaned from interdisciplinary research, particularly in anthropology, from the early twentieth century. At the risk of presenting an abrupt shift in disciplinary paradigms in this article, the author follows a thread of relationality from Canadian courts through the lens of doctrinal jurisprudence into relationality within various Indigenous legal orders through anthropological study. Combined, the article offers a potential path to reconciliation through relationality within Indigenous legal orders.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42823612","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cannabis, Reconciliation, and the Rights of Indigenous Peoples: Prospects and Challenges for Cannabis Legalization in Canada","authors":"Konstantia Koutouki, K. Lofts","doi":"10.29173/ALR2519","DOIUrl":"https://doi.org/10.29173/ALR2519","url":null,"abstract":"The provisions of the federal Cannabis Act came into force on 17 October 2018, opening a new era of cannabis management in Canada. We examine cannabis in Canada through the lens of reconciliation and the rights of First Nations, Métis, and Inuit peoples. There is potential for Indigenous communities to benefit from cannabis legalization, but also a very real risk that the new legal framework will simply perpetuate existing injustices. We show that the new legislation is inadequate both in terms of lack of consultation with Indigenous communities, as well as in terms of substantive provisions — and omissions — in the legislation itself.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45075512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Harms Caused: A Narrative of Intergenerational Responsibility","authors":"M. Hough","doi":"10.29173/ALR2526","DOIUrl":"https://doi.org/10.29173/ALR2526","url":null,"abstract":"Born out of the Indian Residential Schools Settlement Agreement, the Independent Assessment Process is a program that provides monetary compensation to former students who suffered sexual and physical abuse at Indian Residential Schools. As “Canada’s Representative” during hearings of the Independent Assessment Process, this author, a young lawyer at the time, bore witness to grizzly accounts of acts perpetrated against claimants that left her unsettled. Unsettled by what was heard, yes, but also in her observations that the process did not satisfy the needs of all claimants, nor did it engage with her own sense of responsibility as a non-Indigenous Canadian. \u0000The author weaves together her experiences and observations as “Canada’s Representative” to explore intergenerational justice in a Canadian setting, and what processes might offer a more complete approach in handling the Indian Residential Schools legacy. First, shecanvasses the existing framework of dispute settlement in the context of Indian Residential Schools, namely criminal, tort, and alternative dispute resolution mechanisms. While pointing out the strengths these mechanisms do have to address some of the harms of Indian Residential Schools, she ultimately suggests their inherent legal limitations make them inadequate tools to provide redress to victims and engage society more broadly. \u0000The author goes on to define transitional justice, set out its established tenets and themes, and begins to map out a Canadian application of these principles to the Indian Residential Schools policy by drawing on examples from Australia, New Zealand, and the United States. These principles take shape as innovative instruments for advancing the goals of reconciliation and of Canadian society. They are not without their own flaws, however, as the author also points out, that may affect how Canadians—in particular, non-Indigenous Canadians—view their legitimacy. \u0000Lastly, the author analyzes prevailing views of societal responsibility to provide a normative underpinning for intergenerational justice in a Canadian context. She concludes by advocating Canadians move from a stance of guilt and blame toward one of a broad assumption of responsibility as they continue to grapple with the legacy of Indian Residential Schools.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45451765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Envisioning Indigenous Community Courts to Realize Justice in Canada for First Nations","authors":"A. EagleWoman","doi":"10.29173/ALR2516","DOIUrl":"https://doi.org/10.29173/ALR2516","url":null,"abstract":"Recognition continues to grow both within Canada, as well as the wider worldwide community, of the unique issues facing Indigenous people within Canada’s justice system. We see this in the recent wholesale adoption by the Canadian Government of the United Nations Declaration on the Rights of Indigenous Peoples, as well as the Truth and Reconciliation Commission Calls to Action. \u0000This article examines the potential development of a system of Indigenous community courts as a way to end colonial suppression of Indigenous self-governance. The article suggests as a model for these courts the tribal courts in the United States, as a means by which Indigenous peoples can re-instate Indigenous law and legal principles.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45542503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Novel Science or Oral History? The Admissibility of Co-Produced Information in Canadian Courts","authors":"D. Isaac","doi":"10.29173/ALR2528","DOIUrl":"https://doi.org/10.29173/ALR2528","url":null,"abstract":"Co-production is an emerging source of information about the world, but it is one that has not been adequately theorized in the legal literature. Because co-production contains aspects of both novel science and oral history, it is not clear how it can be admitted. I argue that coproduced information does not clearly fit into either of the admissibility frameworks. With respect to the novel science framework, co-produced information fits into the criteria of testability, peer review, and standards with only a few problems, but would likely fail the general acceptance criterion of the test. However, if scientists are educated about co-production, or if it is possible to delineate a group of scientists who are more likely to accept co-production as the “relevant group,” then it may be possible for co-production to be admitted as evidence through the novel science framework. Turning to the oral history framework, co-produced information is less likely to be admitted because oral history is only a part, and not a necessary part, of co-produced information. As such, courts will likely be reluctant to bend the rules of evidence to admit it. Further research is needed to determine whether co-produced information can be admitted under the novel science framework.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41565468","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Introduction","authors":"C. Bell, Hadley Friedland","doi":"10.29173/alr2532","DOIUrl":"https://doi.org/10.29173/alr2532","url":null,"abstract":"The articles in this special issue all take up some of the many challenges and opportunities that the Truth and Reconciliation Commission of Canada (TRC) identified as crucial for reconciliation in its 2015 Final Report. Some engage with the current Canadian political and legal system’s impact on Indigenous peoples, while others acknowledge these but focus more on the enduring principles and possibilities of Indigenous legal traditions and the potential for operationalizing jurisdictional spaces for implementation. All speak to the importance of developing a narrative and understanding of intergenerational responsibility and relationality at the core of any enduring reconciliation.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43433516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“We the North” As the Dispossession of Indigenous Identity and a Slogan of Canada’s Enduring Colonial Legacy","authors":"Daniel W. Dylan","doi":"10.29173/ALR2522","DOIUrl":"https://doi.org/10.29173/ALR2522","url":null,"abstract":"As the only Canadian team in the professional United States’ National Basketball Association, the Toronto Raptors adopted the slogan “We the North.” The new slogan is designed to invoke historical myths and narratives of what or who Canada is. The slogan emblematically assumes, as a metanarrative, the mythologized national identity of Canada as distinctly “northern,” revealing itself to be a reproduction of banal nationalism in Canada in the process. It is, however, more than that: it is the appropriation of an imagined northern Canadian, and specifically Inuit or authentic northern (indigenous) identity. Something as seemingly innocuous and banal as a Canadian sports team’s slogan can manifest the enduring colonial legacy of Canada. Banal nationalism in Canada is anything but benign, and in the case of the Raptor’s highly appropriative slogan, dispossessive of Inuit identity and an enduring symbol of Canada’s colonial legacy. In the process of attempting to encapsulate the imagined Canadian national identity and fashion it into a metanarrative, the slogan appropriates the uniqueness that makes northerners and northern indigenous peoples what they are, northerners, and dispossesses them of facets of their identity.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45361866","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Supreme Court of Canada Cases Strengthen Argument for Municipal Obligation to Discharge Duty to Consult: Time to Put Neskonlith to Rest","authors":"Angela D’Elia Decembrini, Shin Imai","doi":"10.29173/ALR2530","DOIUrl":"https://doi.org/10.29173/ALR2530","url":null,"abstract":"Can municipalities infringe Aboriginal or treaty rights without consulting the affected Indigenous group? In Neskonlith Indian Band v. Salmon Arm (City), the British Columbia Court of Appeal answered this question in the affirmative, finding that the city of Salmon Arm did not need to consult the Neskonlith First Nation about impacts from the construction of a shopping mall. In what was technically obiter dicta, the Court permitted the municipal project to proceed, and told the First Nation that its only recourse was to complain to the provincial government in a separate proceeding.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47683092","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}