This topic is of great interest to me because I was fortunate enough to grow up in a community, surrounded by five First Nations reserves. I chose this case because in my community, an RCMP officer pled guilty to assault causing bodily harm to an Indigenous man and abandoning him 10 kilometres outside of town. Similar to the R v Mann case, race was also neglected from the case in my community.
n response to the criticisms of those who are anti-judicial activism, “supporters of judicial activism say such activism through judicial review is necessary because it allows the courts to step in and fill gaps in the law where minorities are not protected because of political pressures and where politicians are afraid to legislate” . This raises the argument that judges and the judiciary play a balanced activist legislative role in such a way that it protects the rights of minorities from legislation or regulation imposed by the government. Within our democratic system, legislators will pay attention to what the majority wants and they will pursue public policies, which favour the majority. This leaves minority interests vulnerable to the legislations and regulations imposed by the government. By playing an active role, the judiciary ensures that the rights of the minorities are protected and that law does not contravene with the Charter of Human Rights and the Constitution of Canada. Through this kind of judicial activism, the courts strike a balance with the legislatures role. This is not to say that the judiciary takes on the role of policymaking and the legislature, but rather that both institutions embrace what is referred to as a “dialogue” where there is a balance between judicial decision-making and legislative-executive decision making . However, according to MacKay, “it is legitimate for the courts to engage in a form of judicial policy making so long as they do
After the strangling claws of the Indian Act were felt, the Canadian government began to issue more laws that intruded with the aboriginals lives and took away their rights. The first of these was the “Potlatch Law” (Hanson, n.p.). It banned potlatches and other ceremonies of the aboriginals, all for the purpose of forcing the
Nobody deserves to be a ‘nobody’: unrecognized and unappreciated for their uniqueness. This is the reason why throughout history, Canada has been working to make sure that the Métis are not ‘nobodies’. Canada has provided enough recognition for Métis culture and rights through existing legislation. Historically, the Canadian government, or Dominion of Canada, has acted upon efforts to protect Métis land through legislation. Furthermore, Métis inherent rights to land, hunting, fishing and autonomy have been met with current and improved legislation. The Métis are now recognized as Aboriginal peoples and share the same rights through Section 35 of the Constitution. These pieces of legislation make it possible
According to the Indian Act (1876), we determined someone’s status by one’s parentage of blood quantum to know how much Indian were they? A First Nations woman, who married with white man, lost her entitlements as Indian, so did her children. However, regardless of race or ethnicity, if another raced woman married a First Nations man, she gained “status” under the terms of the Indian Act. I feel that was completely unfair, and obviously discriminatory, that horrific situation continued until 1985.
For several hundreds of years, Aboriginals have been impacted by the Indian Act in many ways. They have dealt with numerous challenges that have changed their lives forever. Laws were created by the Canadian government with the purpose of controlling Natives and assimilating them into Canadian culture.For multiple years,
My first reason to support the fact that Canada hasn’t affirmed collective rights for the Aboriginal group is the Indian Act and how poorly it treated the Aboriginals. The Indian Act is a federal legislation that is related to the rights and status of First Nations peoples (“status Indians”), which was first passed in 1867. During this time, the government thought that is was appropriate/acceptable to make laws for the First Nations peoples without consulting them. This move connected to Canada’s colonial past, the part where people of European descent strongly believed that their culture and way of life was way more superior to any other culture existing. In other words, they were ethnocentric. Within the Indian Act, it defied who may be registered as a “status Indian” with treaty rights. This meant that the Federal government were the ones who mostly made
The Effectiveness of the Law in Achieving Justice for Indigenous People In relation to Australia, the term ‘Indigenous peoples’ refers to two distinct cultures of people who inhabited the land prior to European settlement – The Aboriginals and the Torres Strait Islanders. This population declined dramatically over the 19th and early 20th century due to the introduction of new diseases from European settlement, Government policies of dispersal and dispossession, the era of protection, assimilation and integration causing a cultural disruption and disintegration of the Indigenous peoples. In the 20th century the recognition and protection of Indigenous peoples land rights and human rights have been
The Persons case was heard by the Supreme Court of Canada and went on to be heard by the JCPC, where it was ruled the women were in fact “persons .” This was decided because the JCPC established the living tree doctrine. While at the time of the Founders women may not have been seen as persons, had the original intent of the definition of persons been used, there is a possibility that the development of women’s rights in Canada would have been severely delayed. While there is a possibility that Canada would have a more centralized government had the JCPC not been the final court of appeal these decisions by the JCPC still serve as precedent to this day even though the decisions are not
Thomas Flanagan disapproves the idea of Native sovereignty ever coexisting with Canadian sovereignty. Flanagan identifies the flaws in Townshend’s arguments referring to them as a theoretical approach and not a practical approach. It is true that the sharing of jurisdictional power is the essence of the Canadian state but this cannot apply to the Aboriginals of Canada. One reason a third level of government cannot work in Canada is “In the 10 provinces, Canada has over six hundred Indian bands living on more than 2200 reserves, plus hundreds of thousands of Métis and non-status Indians who do not possess reserves,” (Flanagan 44). Flanagan draws the fact that “No one has proposed a workable mechanism by which this far-flung archipelago could
In addition to the relocation of the natives, the dominant group justifies this action by the paternalistic model. The reasoning by the government is that the aboriginals are “Childlike and immature”, and can not conduct themselves in a civilized manner. (Kallen, 1995) Furthermore, the aboriginals are not expected to reach maturity, and they are regarded as permanent children. They can not self-govern themselves and will always be dependant on the dominant group for support. (Kallen, 1995) The dominant group makes the aboriginals believe that they are less than human, and can not do things for their self, and will continually be dependant on the dominant group. To help ensure this, the government proposed the Indian act, where the federal minister of Indian affairs, has had ultimate authority over all decisions affecting the lives and destinies of the Indians residing on the reserves. (Kallen, 1995) Throughout the years the Indian act has abled the minister to control resources which include, land, housing, income, etc. basically all aspects of Indian life. This was just another way for the dominant group to have total control of everything in Canada. This helps ensure that that the control of dominant powers is not threatened by minorities, and that the individual and collective rights of the dominant population
Many scholars in the constitutional legal field for numerous reasons have argued the conceptualisation of standing. The law of standing establishes a series of rules that ultimately determine whether a person who starts legal proceedings is the proper person to do so. Scholars including Patrick Keyzer, Simon Evans as well as Grand Chief Charles Grand Chief Fox all have individual standpoints on how standing can be altered to for a greater constitutional justice. Throughout this essay it shall be argued that the standing tests that are prevalent in today’s constitutional environment limit those that could have grounds for standing but are unable to seek constitutional justice, and how it specifically affects indigenous Australians. When approaching standing from Keyzer and Evans’ standpoints and expanding upon their notions, it can be observed that slightly altering the definition of standing and the tests that insinuate individuals have special interest within cases broadens the scope to allow for an inclusion of the indigenous populations and interest groups. This is one of the ways in which standing can be modified to be more lenient and allow for a broader approach to standing. Additionally, the arguments that Keyzer and Evans push highlight standing within Australia, while on the other hand Grand Chief Fox investigates the effects that standing has and its impact within Canada, these ideas assessed to investigate if Australia can follow the model of standing Canada has
Because of the heavy reliance on oral history, the court had to confront the tension between the common law rules of evidence and Aboriginal culture. Problematically, most oral histories are made up of out-of-court statements that are passed on through generations, but when admitted as evidence conflict with the rules of hearsay. It was noted that aboriginal rights are sui generis, and as a result require a special approach when dealing with evidence as long as it is done in a way that doesn’t strain the “Canadian legal and constitutional structure.”
Over the past years, Canadian courts have repeatedly urged that aboriginal title conflicts should be resolved through negotiation, rather than litigation. The primary reason being that litigation is costly and time-consuming. For example, the decision for the Delgamuukw case took a duration of thirteen years. Furthermore, litigations that deal with the issue of aboriginal rights and title are “generally narrowly focused” and “ultimately leaves the question [posed about] how aboriginal rights and title apply unwarned.” For instance, the courts of Canada repeatedly failed to come up with a clear definition on the legal scope of Aboriginal rights despite the fact that they have several opportunities to do so. The Delgamuuku case clearly illustrates this when the Court “did not define how aboriginal title applied for the First Nations involved.” Instead, the Court came to the conclusion that a new trial was required, which ultimately will be more expensive and take longer.