By Thomas Isaac
In this 4th version of Aboriginal legislations, Thomas Isaac highlights an important features of Canadian legislation because it affects on Aboriginal peoples and their courting with the broader Canadian society. in contrast to the former 3 variants, this model doesn't comprise case or legislative excerpts, all of that are available on the net. as a substitute, the writer specializes in statement and research – the extensive photograph of traits which are constructing within the law.
While protecting very important matters similar to Aboriginal and treaty rights, constitutional matters, land claims, collecting rights, and the Indian Act, this e-book can pay specific realization to the obligation to refer to and the $64000 function of governments in reconciling Aboriginal pursuits with the wishes of Canadian society as an entire. In discussing the Crown's responsibility to refer to the writer canvasses while and to whom the obligation applies. He extra argues Canada's excellent court docket has made transparent that the onus to achieve...
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Additional resources for Aboriginal Law. Commentary and Analysis
Treaty rights are those rights that are contained in treaties entered into between the Crown and Aboriginal peoples and can include specific rights such as those relating to hunting, fishing, and trapping. Treaty rights—historic and modern—are discussed in Chapters 3 and 4 respectively. The basic analytical framework for approaching an Aboriginal rights claim involves asking the following questions: (1) Is there an existing Aboriginal right? (2) Has the Aboriginal right been extinguished? (3) Has there been a prima facie infringement of the right?
6 Justification of Infringement If a prima facie infringement is established, the onus shifts to the Crown to demonstrate that the infringement is justified under the two-part test set out in Sparrow:131 (a) Was the Crown pursuing a valid legislative objective? (b) Given the Crown’s trust relationship and responsibility towards Aboriginal peoples, has the honour of the Crown been upheld? ”135 This involves examining the objectives of Parliament, provincial legislatures, and their respective agencies to determine the merits of the government’s justification.
In Ahousaht, BCSC, Garson J. found the preferred means of fishing was a community-based, multi-species fishery, which the regulations prevented the community from practicing. As a result, she found the plaintiffs had established a prima facie infringement. 128 However, in R. v. Catarat,129 Krueger J. held that being able to hunt from and on a particular lake abundant with wildlife was a preferred means, and that being deprived of the ability to hunt at that location was an undue hardship. The Court rejected the Crown’s argument that there was no infringement because other hunting areas were available, concluding that with only a weekend to hunt and with the expense of having to fly to a hunting site it was important that the respondents be assured a successful hunt.
Aboriginal Law. Commentary and Analysis by Thomas Isaac