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Aboriginal Legal Issues - Cases, Materials and Commentary, 5th Edition

This comprehensive casebook surveys the most important issues in Canadian law concerning Aboriginal people, contextualising them within their larger cultural, political and sociological framework. Includes new case law including seminal Williams Lake case handed down by the Supreme Court of Canada in early 2018.
Publication Language: English
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ISBN/ISSN: 9780433491644

Product details

Includes seminal Williams Lake case handed down by the Supreme Court of Canada in early 2018.

This comprehensive casebook surveys the most important issues in Canadian law concerning Aboriginal peoples, contextualising them within their larger cultural, political and sociological framework.

Also intended to be a general reference work for lawyers, judges, Indian chiefs and council members, Metis and Inuit leaders, and policy makers for governments and businesses who work with Aboriginal people, it surveys the most important issues in Canadian law concerning Aboriginal people.

The materials also contain insights into questions courts have left unanswered, providing readers with ideas about how the law will develop in the future.

New in this edition

  • Case analysis and discussion on new Supreme Court of Canada Williams Lake case
  • New questions relating to the material to encourage academic discourse and engage critical thinking
  • New case law Sga'nism Sim'augit (Chief Mountain) v. Canada (Attorney-General)
  • Article titled "Indian Act By-Laws: A viable means for First nations to (re)assert control over local matters now and not later" discusses the complications of an amendment to the Indian Act for Indian Band governmental powers
  • Information about the development and passage of the Indigenous Languages Act proposed by the federal Trudeau government
  • Discussion of Tsilhqot'in Nation v. British Columbia, [2014] 2 S.C.R. 256 case dealing with Aboriginal Title
  • Insightful commentary on R. v. White and Bob and the change in judicial approach towards Aboriginal treaty interpretation
  • New case called Grassy Narrows First Nation v. Ontario (MNR) [2014] 2 S.C.R. 447 dealing with Aboriginal treaties
  • New case First Nation of Nacho Nyak Dun et al v. Government of Yukon is the most recent case showing consideration of modern treatises
  • Brand new section about spirituality and the duty to consult featuring 2-17 case Ktunaxa nation v BC (Forests, Lands and Natural Resource Operations)
  • New section on obligation to consult using cases: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council; Clyde River (Hamlet) v. Petroleum Geo-Services Inc.; and Behn v. Moulton Contracting Ltd.
  • New Excerpt titled "The lands belonged to Them, Once by the Indian Title, Twice for having Defended Them…and thrice for having Built and Lived on Them: The Law and Politics of Métis Title"
  • New case and commentary - Brown v. Canada (Attorney General)
  • First Nations Child and Family Caring Society of Canada et. A; V.A.G. of Canada (Minister of Indian Affairs)
  • New case R v. Kokopenace [2015] 2 SCR 398, 2015 SCC 28

Featured authors

Table of contents

Chapter 1: Governance
A. Introduction
B. Aboriginal Views on Governance
C. The Courts' View on Aboriginal Governance
D. The Historical recognition of Aboriginal Governance
E. The Indian Act's Challenge to Aboriginal Governance
F. Contemporary Cases: Litigating Governance
G. Negotiating Governance Agreements
H. Conclusion

Chapter 2: Aboriginal Rights
A. Introduction
B. Aboriginal Peoples Canada and the Constitution
C. The Characterization of Aboriginal Rights by the Courts
D. Aboriginal Rights; inherent Rights or Contingent Rights
E. Post-Sparrow Considerations of Aboriginal Rights
F. Conclusion

Chapter 3: Aboriginal Title
A. Introduction
B. The Importance of Land to Aboriginal Cultures
C. The Doctrine of Aboriginal Title
D. The British Crown's Response
E. Early Canadian Aboriginal Title Jurisprudence
F. The Beginnings of Modern Canadian Aboriginal Title
G. More Recent Judicial Considerations of Aboriginal Title

Chapter 4: Treatises
A. Introduction
B. Treaty Interpretation Prior to 1982
C. Post-1982 Treaty Jurisprudence
D. Treaties, Treaty Interpretations, and the "Honour of the Crown"
E. Treaties and Federalism
F. Modern treaties and Land Claims Agreements
G. Conclusion

Chapter 5: Crown Obligations
A. Introduction
B. The Honour of the Crown
C. Fiduciary law
D. The Duty to Consult
E. Who is the Crown? Who has the Obligation to Consult?
F. Spirituality and the Duty to Consult
G. Conclusion

Chapter 6: Inuit Rights
A. Introduction
B. Inuit Law in Cultural Context
C. Inuit as "Indians" under Section 91(24) of the Constitution Act, 1867
D. Inuit Land Claims and Self-Government Agreements
E. Inuit Traditional Law and the Creation of an Inuit-focused Jurisprudence
F. Challenges Implementing the Nunavut Land Claim Agreement
G. Conclusion

Chapter 7: Métis Rights
A. Introduction
B. Métis Identity
C. Métis Land Rights
D. Métis Aboriginal Rights
E. Conclusion

Chapter 8: Federalism/Constitutional Issues
A. Introduction
B. The Implications of the Division of Powers on Aboriginal Peoples
C. Section 88 and Indian Act
D. Ex Propric Vigore the Direct Application of Provincial Law to Indians
E. Interjurisdictional Immunity and the Core of Indianness
F. Abrogating or Derogating from Aboriginal and Treaty Rights: The Natural Resources Transfer Act (NRTA)
G. The Charter and Aboriginal Peoples
H. Conclusion

Chapter 9: Aboriginal Women
A. Introduction
B. Matrimonial Property
C. Denial of Status under the Indian Act
D. Amendments to the Indian Act: Bill C-31 and Its effects
E. Conclusion

Chapter 10: Child Welfare
A. Introduction
B. Historical Treatment
C. Contemporary Realities
D. Best Interests of the Child
E. Self-Government Initiatives
F. Challenges of Aboriginal Control
G. Customary Child and Family Relations
H. Conclusion

Chapter 11: Taxation
A. Introduction
B. History and Context
C. Sovereignty and the Customs and Excise Tac
D. Income Taxation and Personal Property Tc
E. Sales Tax
F. Investment Income
G. Aboriginal Taxation Powers
H. Conclusion

Chapter 12: Aboriginal Peoples and Criminal Justice
A. Introduction
B. The Failure of Criminal Law for Aboriginal Peoples
C. Aboriginal Traditions and Justice
D. Reforming the Criminal Justice System
E. Aboriginal Justice Systems
F. Conclusion