Category: Indigenous Page 4 of 8

Case Commented On: Ontario (Attorney General) v Restoule, 2024 SCC 27 (CanLII)

PDF Version: Restoule: Tugging on the Rope and the Duty of Diligent Implementation of Treaty Promises

[T]he trial judge found that the Robinson Treaties were motivated largely by the principles of kinship and mutual interdependence, as reflected in the Covenant Chain. This enduring alliance has been depicted using the metaphor of a ship tied to a tree with a metal chain: “The metaphor associated with the chain was that if one party was in need, they only had to ‘tug on the rope’ to give the signal that something was amiss, and ‘all would be restored’” … The Anishinaabe treaty partners have been tugging on the rope for some 150 years now, but the Crown has ignored their calls. The Crown has severely undermined both the spirit and substance of the Robinson Treaties.

Per Justice Jamal at para 286

In a unanimous judgment authored by Justice Jamal, Ontario (Attorney General) v Restoule, 2024 SCC 27 (CanLII), the Supreme Court of Canada has confirmed that the Crown has a duty of diligent implementation of treaty promises that is informed not by fiduciary principles, but by the honour of the Crown. And in this case, the Crown was clearly in breach of that duty since, as Justice Jamal noted in words that will ring down through the decades: “For well over a century, the Crown has shown itself to be a patently unreliable and untrustworthy treaty partner in relation to the augmentation promise. It has lost the moral authority to simply say ‘trust us’” (at para 262).

A Misstep on the Road to Reconciliation

By David Leitch

On July 19, 2024

In Aboriginal, Indigenous, Reconciliation

By: David Leitch

Matter commented on: R c Montour, 2023 QCCS 4154 (CanLII)

PDF Version: A Misstep on the Road to Reconciliation

Critics of the Supreme Court of Canada’s definition of aboriginal rights in R v Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 SCR 507 may applaud the Quebec Superior Court’s decision in R c Montour, 2023 QCCS 4154 (CanLII) that attempts to re-write this definition so that it conforms to the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration). But this post maintains that court-based battles of this kind do little to promote reconciliation. The Declaration will better promote reconciliation by being implemented through new treaties and federal legislation drafted in consultation with Indigenous peoples.

Can the Federal Government Compel Provincial Authorities to Respect an Indigenous Right of Self-Government?

By Robert Hamilton

On June 3, 2024

In Aboriginal, Constitutional, Indigenous

By: Robert Hamilton

Case Commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII)

PDF Version: Can the Federal Government Compel Provincial Authorities to Respect an Indigenous Right of Self-Government?

The Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII) (SCC Reference) is one of the most significant Supreme Court of Canada (SCC) decisions concerning Indigenous Peoples of the past decade. I summarized the decision here, Nigel Bankes and I commented on the Court’s treatment of UNDRIP here, and Nigel Bankes commented on implications for the “lands reserved” head of power under s 91(24) here.

The Dickson Decision, UNDRIP, and the Federal UNDRIP Act

By Nigel Bankes

On April 18, 2024

In Aboriginal, Constitutional, Indigenous

By: Nigel Bankes and Jennifer Koshan

Decision Commented On: Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII)

PDF Version: The Dickson Decision, UNDRIP, and the Federal UNDRIP Act

This post is part of continuing ABlawg commentary on the approach of the courts to legislation implementing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). That commentary includes the decision of the Supreme Court of British Columbia in Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 (CanLII) (ABlawg post here) and, most importantly, the Supreme Court of Canada’s decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII) (FNIM Reference) (ABlawg post here). This post is also the first of multiple posts that ABlawg anticipates on the Dickson decision.

Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

By Nigel Bankes

On March 5, 2024

In Aboriginal, Constitutional, Indigenous

By: Nigel Bankes

Case Commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII).

PDF Version: Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

The Children, Youth and Families Reference is a decision on the “Indians” head of section 91(24), a head that the Supreme Court of Canada has reframed as “Indigeneity, that is, Indigenous peoples as Indigenous peoples” (Reference at para 94). The Court takes a broad view of the scope of this head of federal power. It also reminds us that the double aspect doctrine means that so long as federal legislation is firmly connected to a federal head of power it can compete with and trump provincial legislation grounded on provincial heads of power addressing the same subject area (e.g. child and family welfare), so long as the federal legislation is addressed to the federal aspect of that subject matter. Furthermore, the Reference makes it clear that Parliament may accord the laws of Indigenous Nations the authority of federal law while the Nations await judicial confirmation that section 35 of the Constitution Act, 1982 protects a broad inherent power of Indigenous self-government. This implies that, provided that the federal government has the necessary legal or political motivation, it has the means to back-out provincial laws and create space for Indigenous self-government on a broad range of matters that can be connected to Indigenous peoples as Indigenous peoples.

Category: Indigenous Page 4 of 8

Restoule: Tugging on the Rope and the Duty of Diligent Implementation of Treaty Promises

A Misstep on the Road to Reconciliation

Can the Federal Government Compel Provincial Authorities to Respect an Indigenous Right of Self-Government?

The Dickson Decision, UNDRIP, and the Federal UNDRIP Act

Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)