Journal articles on the topic 'Aboriginal treaties'

Thomas Flanagan's article on adhesion to Indian treaties in this issue of the Canadian Journal of Law and Society is a bold foray into a virtually unexplored area of aboriginal rights. Although adhesions to most of the eleven Numbered Treaties in northern and western Canada were common, as Flanagan points out, not much attention has been paid to them. The matter is nonetheless of major importance for many aboriginal peoples, as was demonstrated by the decision of the Supreme Court of Canada last year that the Teme-Augama Anishnabai had surrendered their aboriginal title by adhesion to the 1850 Robinson-Huron Treaty. There can be little doubt that the issue is going to arise more frequently as other aboriginal peoples challenge the application of treaties to their ancestral lands.

The Eeyou Marine Region Land Claims Agreement (EMRLCA) with the James Bay Cree of northern Quebec contains a novel approach to achieving certainty in treaties with Indigenous peoples. For the federal government, the certainty of having the rights of an Indigenous nation exhaustively set out in one document is the benefit derived from treaties. Unlike Aboriginal rights, which the government views as ambiguous and hard to define, treaties are negotiated agreements that clearly outline rights. The goal of government when negotiating treaties is therefore to ensure that the Indigenous group can only exercise treaty rights and not their pre-existing Aboriginal rights which are recognized by the common law and the Constitution Act, 1982.

Abstract The 1999 Supreme Court of Canada decision in the case of R. v. Donald Marshall Jr. brought about a dramatic change in Aboriginal (First Nations) fishing and harvesting rights in Canada’s Maritime Provinces. Marshall argued that a series of eighteenth-century treaties signed between the Mi’kmaq and the British government guaranteed his right to fish for commercial purposes. The British and, later, the Canadian governments accorded little priority to these treaties, despite repeated protests by the Mi’kmaq. The Supreme Court’s decision caught most observers by surprise, particularly because of the sweeping provisions it made for Aboriginal participation in the commercial fishery. Political controversy followed, sparked by the absence of decisive action by the federal government, by the First Nations’ determination to commence commercial fishing, and by growing anger at "judicial activism" by the Supreme Court. The resulting tensions exacerbated long-standing ethnic tensions in the region. The Marshall decision represented a major turning point in Aboriginal harvesting rights in Canada. The Supreme Court’s judgment gave new power to treaties that non-Aboriginal governments had chosen to ignore. At the same time, the decision provided Aboriginal Maritimers with assured access to important fisheries (particularly the lucrative lobster trade) and therefore a key role in the evolving regional economy.

Abstract This article gives a schematic overview of metis aboriginal rights from the Huron and Superior Treaties of 1850 to the Mackenzie Valley Treaty of 1921. It traces the evolution of federal policy in several stages: treating Metis as Indians, followed by individual grants of land, scrip and money. Pragmatism and expediency led to many inconsistencies in policy, but there were also pressures of administrative precedent favouring rationalization. Awareness of this history is essential in determining what metis aboriginal rights, if any, are still “existing” under s. 25 of the Constitution Act, 1982.

This article explores the interpretive principle of sui generis treaties introduced by the Supreme Court of Canada since the repatriation of the Constitution in 1982. The article proceeds through an analysis of treaty rights as constitutional rights, contextual analysis of Indian Treaties, the intent of the treaty parties and the principles which govern the interpretation of treaty text. The author concludes that the principles articulated by the Supreme Court of Canada are an attempt to affirm and enhance Aboriginal worldviews and cognitive diversity within the Constitution of Canada.

In the case of R. v. Sparrow, the Supreme Court of Canada created a justificatory scheme for federal legislation that had the potential to derogate from the rights of the Aboriginal peoples that are protected by s. 35(1) of the Constitution Act, 1982. Since that time, the Sparrow test has been applied to both Aboriginal and treaty rights. The author suggests that the straightforward application of the Sparrow test to treaty rights is inappropriate because of the significant distinctions between Aboriginal and treaty rights. Where there is a need to balance treaty rights with competing rights, any justificatory standard to be applied ought to be consistent with the consensual basis of Crown- Native treaties.

This article examines two problems faced by the Canadian population: the current conditions of Aboriginal children and the lack of concrete course of action established to improve the dire conditions and lack of access to basic resources. This article proposes that a human rights framework can be utilized to address the disparities between Aboriginal and non-Aboriginal children in Canada. An integrated human rights framework acknowledges the complexity of the relationship between universal, natural and legal rights and provides a system of accountability to track the quality and success of the improvements made by the government of Canada. Due to the complex and systematic nature of the problem, a human rights framework provides a way to supplement the treaties and agreements that the government of Canada has often used as reasons for not taking responsibility. This paper concludes that an integrated human rights framework is an effective way to address the significant gaps between Aboriginal and non-Aboriginal children in terms of access and funding for social, health and educational services.

The Constitution of Canada is a prismatic hodgepodge of treaties, royal instructions and proclamations, and UK legislation. The unifying factor is the constitutional monarchy that holds together a topocratic and collegiality federation. Treaties with Aboriginal nations created treaty federalism; subsequent UK legislation created provincial federalism. Both of these imperial documents are more prismatic than systematic. Prismatic thought is reflective of an infinite variety of perspectives of the same core of truth, which is simultaneously solid and shifting. This has been recognized as representing the federation called “the ironic confederation.”

In recent years, the development in Canada of a constitutional duty to consult Indigenous communities has had ramifications on government decision-making that are widespread, far-reaching, and potentially expansive. The modern duty to consult doctrine developed in a series of cases in 2004-2005, ensuring that governments have a duty to consult proactively with Aboriginal communities whose Aboriginal or treaty rights may be adversely impacted by a particular administrative decision, even in the face of uncertainty about the scope of asserted rights in the absence of a final settlement or court decision. Case law development on the duty later established that the duty is also triggered in the context of an early, strategic decision that may determine later administrative decisions. Some have put forth the argument that the duty may be triggered prior to the adoption of legislation; adjudication on that issue is currently making its way forwardthrough the courts. The Hupacasath First Nation case, recently decided at the Federal Court of Appeal, raised another question, that of whether or not consultation was owed to Aboriginal communities in the context of international treaty negotiations. Although the federal government has actually engaged in such consultation in some instances so as to avoid infringing Aboriginal and treaty rights, the case raised the complex question of whether it is constitutionally required to do so in order to comply with the duty to consult doctrine. On the particular facts of the case, the issue concerned the Canada-China foreign investment treaty, which the Hupacasath First Nation argued was apt to lead to later infringements on Aboriginal rights. Both the Federal Court and the Federal Court of Appeal rejected these arguments. Their rejection has broader implications, but we shall argue that it leaves open the possibility that the negotiation of some internationaltreaties may trigger the constitutional duty to consult, thus opening a complex nexus between constitutional and international law.

The rights of aboriginal peoples may vary from one part of the country to the other. This stems from the origin of Canada, its history, its Imperial and the Constitutional Statutes which have determined the territorial evolution of Canada. The terms of the Quebec Act seem to limit the hunting territories of the Indians to that part of Quebec which was not a part of the Colony in 1763. While a federal law extinguished all aboriginal rights in the territory covered by the James Bay agreements, the amendment of 16 March 1983 may have, for Quebec, important legal consequences in that these agreements may be held to be treaties.

There are many accounts of the history of the treaties between the Crown and the Indigenous peoples in Canada. This paper summarizes and analyses two of them. J.R. Miller, history professor emeritus at the University of Saskatchewan, gives an account of treaties one through seven in his article, “The Southern Numbered Treaties,” which is contained in his book Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada. Sharon Venne, an accomplished First Nations lawyer and member of the Cree Nation, also writes about the treaties in southern Canada, focusing particularly on treaty six, in “Understanding Treaty 6: An Indigenous Perspective.” These two articles analyze the processes of treaty making, and offer perspectives contrary to the popular narrative, as well as arguing that the popular narrative does not include the entire history. This paper starts by summarizing each article separately, then analyses some of the main points. The analysis will argue in favour of the arguments put forth by Venne and Miller.

Canada has an important responsibility for the research, conservation, and management of polar bears ( Ursus maritimus Phipps, 1774) because the majority of polar bears in the world occur within the nation’s borders. Two fundamental and recent changes for polar bears and their conservation have arisen: (1) the ongoing and projected further decline of sea-ice habitat as a result of climate change and (2) the implementation of aboriginal land claims and treaties in Canada’s North. Science has documented empirical links between productivity of polar bear population and sea-ice change. Predictive modeling based on these data has forecast significant declines in polar bear abundance and distribution of polar bears. With the signing of northern land claims and treaties, polar bear management in Canada has integrated local aboriginal participation, values, and knowledge. The interaction of scientific and local perspectives on polar bears as they relate to harvest, climate change, and declining habitat has recently caused controversy. Some conservation, management, and research decisions have been contentious because of gaps in scientific knowledge and the polarization and politicization of the roles of the various stakeholders. With these ecological and governance transitions, there is a need to re-focus and re-direct polar bear conservation in Canada.

From every State and Territory of Australia, including the islands of the Torres Strait over 200 delegates gathered at the 2017 First Nations National Constitutional Convention in Uluru, which has stood on Anangu Pitjantjatjara country in the Northern Territory since time immemorial, to discuss the issue of constitutional recognition. Delegates agreed that tokenistic recognition would not be enough, and that recognition bearing legal substance must stand, with the possibility to make multiple treaties between Aboriginal peoples and Torres Strait Islanders and the Commonwealth Government of Australia. In this paper, we look at the roadmap beyond such a potential change. We make the case for a redistributive approach to capital, and propose key outcomes for social reconstruction, should a voice to parliament, a Makarrata[1] Commission and multiple treaties be enabled through a successful referendum. We conclude that an alteration of the Commonwealth Constitution (Cth) is the preliminary overture of a suite of changes: the constitutional change itself is not the end of the road, but simply the beginning of years of legal change, which seeks provide a socio-economic future for Australia’s First Peoples, and the oldest continuing cultures in the world. Constitutional change seeks to transform the discourse about Aboriginal and Torres Strait Islander relations with the Australian state from one centred on distributive justice to one that is primarily informed by retributive justice. This paper concerns the future generations of Aboriginal and Torres Strait Islander children, and their right to labour in a market that honours their cultural contributions to humanity at large. [1] Yolŋu ceremony for coming together after a struggle.

A commitment in applied anthropological policy work to maximising cultural appropriateness or even to supporting what indigenous people say they want is not always possible. This proved to be the case in connection with formulating recommendations for land rights legislation in Australia's Northern Territory. Until 1992 the only rights in land that Aboriginal people had as the original occupiers of the continent were statutory (that is, through acts of state and federal parliaments). No treaties were signed with Aboriginal people and until that date the continent was treated as terra nullius, unowned, at the time of colonisation in 1788. From early on in the history of European colonisation, however, areas of land had been set aside for the use and benefit of Aboriginal people. These reserves were held by the government, or by one of a number of religious bodies that ministered to Aboriginal people, usually supported by government funding. Beginning with South Australia in 1966 all of the states, except Tasmania, have passed legislation that gives varying degrees of control of these reserves to land trusts governed by Aboriginal people. Each of these pieces of legislation had/have different shortcomings which included some or all of the following: the total area that had been reserved was small; the powers granted over the land were limited; the majority of the Aboriginal population did not benefit from the legislation; and none of them addressed the issue of self-determination. In 1973 a Royal Commission into Aboriginal Land Rights, with a single Commissioner, Mr. Justice Woodward, was established by the newly elected Federal Labor government, the first in 23 years. It was planned that it would deal with the continent but that it would begin by focusing on the Northern Territory which until 1978 was administered by the Federal government. At the time there were 25,300 Aboriginal people in the Territory making up 25% of the population.

The 1997 Supreme Court case Delgamuukw v. British Columbia was groundbreaking in its recognition of oral histories as evidence of Aboriginal title. Brought forth by the Wet’suwet’en and Gitxsan nations, the trial would decide the title to territory in northern British Columbia, a jurisdiction which notably had never signed any treaties with the Canadian government. The Supreme Court overturned an earlier judgement from lower B.C. courts that had claimed Aboriginal title did not exist in law, allowing an appeal and leading to a retrial. The Supreme Court’s ruling not only defined the scope of Aborginal title, but ensured it was a constitutionally protected right that cannot be extinguished by the provinces, although it could be “infringed upon.” Additionally, it set the precedent for all future cases that Indigenous oral history must be given the same weight as written colonial history.

AbstractIn 1973, the federal government of Canada invited Aboriginal groups to enter into comprehensive land claims negotiations to settle outstanding claims not addressed by historical treaties. After eight years of negotiations, the Inuvialuit became the second group in Canada to sign a modern treaty, doing so in 1984. Missing from that agreement, however, was a self-government chapter, which was not open to negotiation at that time. In 1996, the Inuvialuit initiated self-government negotiations with the Crown but have yet to conclude an agreement despite increased institutional capacity. What explains this puzzle? Drawing upon the existing literature on land claims negotiations, Aboriginal self-government and historical institutionalism, we analyze a variety of primary and secondary sources to argue that a number of institutional and non-institutional factors have prevented the Inuvialuit from successfully completing self-government negotiations with the Crown.

Murri Courts are a specialist criminal law practice that includes Elders and respected persons of the local Community Justice Group in the sentencing of Aboriginal and Torres Strait Islander defendants. Drawing on an ethnographic study of two southeast Queensland Murri Courts, this article explores the impact of State ordered out-of-home care on Aboriginal and Torres Strait Islander defendants and their children. We show how Community Justice Groups and specialist courts help to address the intergenerational impacts of child protection interventions. The rights of Australian Indigenous peoples to enjoy, maintain, control, protect and develop their kinship ties is recognised under the Human Rights Act 2019 (Qld) and international human rights treaties. We suggest that policymakers and legislators should better recognise and support Community Justice Groups and specialist courts as they provide an important avenue for implementing the rights of Australian Indigenous peoples to recover and maintain their kinship ties.

In September, 1999, the Supreme Court of Canada (SCC) released its decision inR v. Marshall. Donald Marshall Jr., no stranger to Canadian law, had been convicted of catching eels out of season, without a licence, and selling them, contrary to the federalFisheries Act. He admitted the offences, but appealed his conviction to the Nova Scotia Court of Appeal and then to the SCC on the grounds that the 1760–61 treaties between the Mi'kmaq and the British recognized his right, as a Mi'kmaq, to catch and sell fish, and that this right was protected under the guarantee of Aboriginal and treaty rights in the Canadian constitution. Justice Binnie, writing for the majority of the SCC, overturned the convictions. The Mi'kmaq, he held, did have treaty rights based on the 1760–61 treaties to catch and sell fish, including eels.The Mi'kmaq were delighted. After many years and many appearances before Canadian judges (R. v. Syliboy, R. v. Issac, andR. v. Simon), it appeared that the courts were finally prepared to recognize what the Mi'kmaq had long believed: that the eighteenth century treaties were the foundation of their relationship with Canada, that the treaties were still in force, and that they guaranteed commercial hunting and fishing rights in their traditional territories.

AbstractResearch shows that adhesions to the numbered treaties were of two types: “internal” and “external.” In an internal adhesion, a band living within the previously ceded area agreed to the terms of the treaty, and no new transfer of land was involved. In an external adhesion, a band living outside the previously ceded area agreed to the terms of the treaty, thus adding a previously unceded piece of territory to the treaty area.This distinction is essential to understanding the long-running Lubicon Lake dispute. From the federal government's point of view, all of northern Alberta was ceded in Treaty Eight; so the Lubicons, who live within this area, are entitled to make only an internal adhesion. In contrast, the Lubicons claim to live on unceded land and thus demand to make an external adhesion. Their claim to possess unextinguished aboriginal title to a specific tract of land is used to justify demands for compensation that would not be paid in the case of an internal adhesion.

Over the past few years there has been an increase in scholarly attention to the politics, the theorization and the logic of difference as a site of contestation; as a cultural value, as a measure of liberalism's capacity for tolerance and inclusion, and as a subject of state action for protection. The debate has been joined by two contributors to this JOURNAL: Avigail Eisenberg in 1994 and Katherine Fierlbeck in 1996. Their thinking is fairly representative of the important debate about the political significance of difference, especially in view of Aboriginal rights and contemporary treaties in Canada, and deserves closer scrutiny.

The Great Bear Rainforest (GBR) agreements are heralded as one of the most important conservation initiatives in the world. They are intended to result in the protection of eighty-five per cent of the coastal temperate rainforest landscape on the British Columbia coast and to see seventy percent of the rainforest returned to old-growth forest. A clear terrestrial environmental success, the negotiation process and agreements are equally important for their enlivenment of Aboriginal rights and the governance authority of the Indigenous communities of the central and north coasts within a colonial law context. After stakeholders wrangled largely over the details of ecosystem-based management, First Nations and the provincial government engaged in government-to-government negotiations that are yielding agreement on the exercise of Aboriginal rights across an intact landscape, funding and priority access for First Nations’ ventures as part of a conservation economy, and enhanced roles in decision making. In the absence of treaties and in a common law Aboriginal rights and title context, these agreements are a robust example of the movement toward reconciliation. The purpose of this article is to describe how the protection of the GBR and the expression of Aboriginal rights in that process has manifested in colonial law, and to examine these agreements in the context of reconciliation in Canada. While unique and ongoing, as all reconciliation efforts will be, the GBR agreements locate land-based protection and governance at their core. As an applied, ongoing initiative, these agreements give life to the concepts of joint decision making and underscore the nation- and place-specific context of any reconciliation process that must adapt over time.

In the Tokyo Olympics, Raven Saunders, Bao Shanju and Zhong Tianshi were questioned by the IOC and got warnings due to their “performance of political demonstration” at the Olympic podium. We saw something similar during the 2012 London Olympic Summer Games when an indigenous boxer of Australia, Damien Hooper, was nearly disqualified from the Olympic competition for entering the ring wearing the Aboriginal flag shirt of Australia. The Olympics has had a history of maintaining a hypocritical form of political neutrality over the years. The Olympic Charter talks about sport being an essential medium in advancing the human rights of various individuals from different countries. However, it also chooses to stay neutral and gives preference to host nations. “Freedom of opinion and expression”, is a fundamental right enshrined in core international and regional human rights treaties and national laws. But it is also to be taken note that this freedom is restricted due to the “legitimate aims” of these treaties and laws. The Olympic Charter has followed suit and enacted a certain rule that prevents athletes from making demonstrations at the Olympic sites under the threat of disciplinary sanctions.

Abstract. Ziel dieses Artikels ist es, am Beispiel der Red-Squirrel-Straßenblockade in Temagami, Ontario, die vermeintliche Allianz aufzuschlüsseln, die Umweltschutzgruppen und Indianer (First Nations) zum Schutz kanadischer Urwälder eingehen. Kanada gehört weltweit zu den Hauptexporteuren von Holzrohstoffen. Die Forstwirtschaft ist an der Ausbeutung des knappen Weichholzes (softwood) und der Erschließung neuer Waldgebiete ineterssiert. Für Umweltschutzgruppen steht der Schutz von noch ungenutzten Wäldern (old-growth-forests) im Vordergrund, wenn sie angesichts des fortschreitenden Kahlschlages (clear-cut) eine Forststraße blockieren. First Nations dagegen haben umfassendere Ziele als Umweltschutzgruppen, wenn sie auf derselben Straße eine Blockade errichten: Oft findet die Ausbeutung der Wälder auf Gebieten statt, die derzeitigen indiaschen Landrechtsforderungen (land claims) unterstehen. Landrechtsforderungen gehen auf die Landrechtsverträge (treaties) zurück, welche First Nations mit der Regierung im letzten Jahrhundert abgeschlossen haben. Heute sind Landrechtsforderungen mit Rückforderungen von Landtitel und (aboriginal title) und Ressourcen verbunden, mit dem Wunsch nach ökonomischer Unabhängigkeit und Selbstverwaltung indianischer Reservate (self government) und mit der Anerkennung der Indianer als eigenständige Nation (distinct society). Intakte Wälder sind sowohl Vorraussetzung als auch ein Beitrag zur Erlangung ökonomischer Unabhängigkeit. Am Beispiel der Red-Squirrel-Straßenblockade in Temagami werden Gegensätze zwischen First Nations und Umweltschutzgruppen deutlich. Die Wälder in Temagami sind schutzwürdig, zugleich auch wertvoller Rohstoff für die Wirtschaft, stehen aber auf Land, das zur Zeit der Blockade indianischen Landrechtsforderungen unterstand. Die Positionen der Terme Augama Anishnabai First Nations (TAA) und der Temagami Wilderness Society (TWS) während der Red-Squirrel-Straßenblockade zeigen die Schwierigkeit beider Parteien, eine gemeinsame Sprache zu finden, die den Schutz bestehender Wälder gewährleisten könnte.

While it is clear that international treaties become part of Australian domestic law only once implemented by domestic legislation, it is less certain whether implementing legislation is required to incorporate customary international law into Australian law. This question is assuming a new importance as international law moves beyond dealing simply with relationships between sovereign nations to protecting the human rights of groups and individuals within states. Since the arrival of Europeans, indigenous Australians have witnessed enormous violations of their human rights. InNulyarimmav.Thompson, members of the Aboriginal community alleged that certain Commonwealth Ministers and Members of Parliament had committed genocide, and sought various remedies. Since Australia has not implemented the Convention on the Prevention and Punishment of the Crime of Genocide by legislation, the case squarely raised the issue of whether customary international law, and in particular international criminal law, could become part of Australian law without the assistance of Parliament.

Many states offer constitutional protection to the traditional lands of indigenous peoples. International treaties protecting ethnic minorities and indigenous peoples also require protection of the rights of indigenous communities with respect to traditional territories. States have followed different routes in identifying the ownership and resource rights of indigenous communities. In Norway, the Courts have traditionally applied the rules on prescription and immemorial usage, developed through centuries in the farming societies of Scandinavia. The legislature has chosen to follow the same approach in the Finnmark area of Norway under the terms of the Finnmark Act (2005). By contrast, in Canada, a settled colony with an English common law tradition, the Courts have developed a sui generis approach to the recognition of Aboriginal title. This article examines the rules for identifying and legally recognising the traditional lands of indigenous people in Norway and Canada with a view to reflecting on similarities and differences.

How is it determined who is prime minister? Does the leader of the party that wins the most seats in the House of Commons, or that gets the most votes in the election automatically become prime minister? Who appoints cabinet ministers? Do cabinet ministers have to be MPs? Who appoints deputy ministers? What are deputy ministers? What are parliamentary secretaries? What is the PCO? What is the PMO? How is the Governor General selected? What are the Governor General’s powers? What is the role of the Queen in governing Canada? What contact, if any, can senior civil servants have with opposition parties? What contact, if any, can government leaders have with judges? How are treaties with foreign countries ratified? Why does Canada have treaties with Aboriginal peoples? Are there any constraints on federal spending in areas of provincial responsibility? What is the constitutional status of the northern territories and how does the federal government’s relationship with them differ from its relations with the provinces?A Canadian citizen who wants to know how her country is governed should be able to get clear, authoritative answers to these questions without much trouble; so should a civics teacher in a school classroom or a person preparing immigrants for Canadian citizenship. These are not small technical questions — they are basic to knowing how Canadian government and democracy work — yet the citizen who looks for answers to these questions in the written text of Canada’s Constitution will look in vain.

Los derechos humanos de los pueblos originarios, entre ellos, el derecho a la salud, son reconocidos por la Constitución Argentina, por tratados internacionales ratificados por nuestro país, por la normativa interna y por las constituciones provinciales. La Corte Suprema de Justicia de la Nación, mediante el fallo en análisis, establece que la protección de estos derechos debe asegurarse por la vía más idónea, y que, al existir una acción de amparo en curso, la medida cautelar de interposición más reciente, debe ser rechazada. The Argentinian Constitution, the international human rights treaties ratified by Argentina, the argentine internal regulations and the constitution of several provinces, recognize the aboriginal´s human rights, including the right to health. In the judgment in analysis, the Argentinian Supreme Court of Justice, states that the protection of those rights needs to be accomplish by the most suitable way. When a legal protection action is in curse, the most recently filed action must be rejected.

Abstract.Disagreement over how and between whom power should be shared has led to competing conceptions of federalism in Canada. The model of federalism adopted in theConstitution Act 1867divides power between the provinces and the federal government to the exclusion of Aboriginal peoples. However, pre-Confederation documents such as the Royal Proclamation of 1763 and the early treaties suggest that federalism is founded on the coexistence of self-governing nations. This paper presents a case study of how one Aboriginal people, the Métis, are reviving the pre-Confederation vision of federalism founded on mutual recognition by carving out a space for themselves in Canada's political and institutional landscape. We argue that by delivering an expanded array of programs and services to their citizens, creating innovative governance structures, adopting legislation in key areas of Métis interest and fostering economic self-sufficiency, the Métis are reshaping federalism from the bottom up.Résumé.Deux visions antagoniques du fédéralisme canadien existent en raison de conceptions divergentes de la séparation des pouvoirs. Le modèle de fédéralisme adopté par la Loi constitutionnelle de 1867 divise les pouvoirs entre les provinces et le gouvernement fédéral, en dépit des peuples autochtones. Or, la Proclamation royale de 1763 et les premiers traités proposent une vision du fédéralisme fondée sur la coexistence de nations autonomes. Cet article présente une étude de cas qui démontre comment un peuple autochtone, les Métis, fait renaitre la vision originale du fédéralisme fondée sur la reconnaissance mutuelle en se taillant une place au sein du paysage politique et institutionnel canadien. Les Métis prennent une approche ascendante pour façonner le fédéralisme canadien à cette image par le biais du développement de programmes et services, la création de structures de gouvernance innovatrices, l'adoption de politiques dans des domaines clés et la poursuite de l'autosuffisance économique.

Canadian Indigenous scholars valiantly search for stores of resilience and strength in contemporary Canada to demystify the tragic place of Indians in Canada. It is very much a journey of self-discovery and recovery of a positive identity and lost human dignity that allows the restoration of pride to succeed with the gifts Creation provides to Indigenous peoples. Cook- Lynn (2007) addresses this quest to locate safe places of connecting to those stories in her important work Anti-Indianism in Modern America: Voice from Tatekeya’s Earth, where she writes about the obligation of Indigenous scholars to project strong voices to people who “believe in the stereotypical assumption that Indians are ‘damned’.. vanished, or pathetic remnants of a race” and “let’s get rid of Indian reservations” or “let’s abrogate Indian treaties.” Instead of feeling inspired to find places of good will far too much energy is sapped escaping spaces of hate, indifference and inexcusable innocence. The cultural, historical and social confusion of a one-sided portrayal of Canadian colonization creates for researchers/witnesses at all levels of education huge gaps in understanding the unresolved pain and injury of Canada’s colonial past on Canada’s First Nations. Indigenous peoples are invisible in most areas of academic study, normally relegated to special programs like Aboriginal Studies as if Indigenous world-views, knowledge, culture and vision for Canada’s future required mere comma’s in course material that feel like “oh yea, then there are aboriginal people who feel” that stand for inclusion but feel like after thoughts only if a visible “Indian” finds a seat in the class. Indigenous students’ experience within the academy has is often a ‘Dickenish’ tale. It is a tale of two extremes; the best of times and the worst of times mostly simultaneously as each glorious lesson learned carries the lonely burden of responsibility to challenge the shame and humiliation of each racist, ignorant and arrogant colonial myth perpetuated. Like Oliver Twist we want more. This paper was conceived out of an invitation by Indigenous author Lee Maracle at the 2009 University of Toronto SAGE (Supporting Aboriginal Graduate Enhancement) writing retreat where Lee and the Cree Elder Pauline Shirt spun webs of stories to encourage Indigenous scholars to explore and express our survival of vicious, traumatic and intentional cultural upheavals.

The Ngaliwurru and Nungali Peoples of the Country known in white law as Timber Creek commenced three proceedings under the Native Title Act 1993 (Cth) (NTA) in 1999 and 2000. The final judgment in the High Court was hailed as progressive. It was the first time that the Court had awarded damages inter alia for cultural loss under the NTA. The article contends that the compensation awarded was inadequate, being based on white, neo-liberal notions of property that do not acknowledge Aboriginal sovereignty, the depth of connection to country and loss suffered. The case also denied that a fiduciary obligation existed on behalf of the Crown, a possibility that was raised in Mabo and other cases but allowed to atrophy. Given this, it is argued that the judgment is a continuation of the colonial project based on the ‘ terra nullius’ doctrine and can be critiqued from the perspective of the white cultural privilege embedded throughout. The judgment does not disturb the skeleton of white Australia's claims to sovereignty: the taking of the land without consent, the failure to recognise First Nations sovereignty, the neglect to enter into treaties or to provide compensation in any meaningful sense.

The ignorance of many Canadians regarding residential schools and their traumatic legacy is emphasised in the reports of the Truth and Reconciliation Commission (TRC) as a foundational obstacle to achieving reconciliation. Many of the TRC's calls to action involve education that dispels and corrects this ignorance, and the commission demands ‘age-appropriate curriculum on residential schools, Treaties, and Aboriginal peoples' historical and contemporary contributions to Canada’ to be made ‘a mandatory education requirement for Kindergarten to Grade Twelve students’ (Calls to Action 62.i). How to incorporate the history of residential schools in kindergarten and early elementary curricula has been much discussed, and one tool gaining traction is Indigenous-authored picturebooks about Canadian residential schools. This article conducts a close reading of Margaret Pokiak-Fenton and Christy Jordan-Fenton's picturebook When I Was Eight (2013). The picturebook gathers Indigenous and settler children together to contest master settler narratives regarding the history of residential schools. Using Gerald Vizenor's concept of ‘survivance’ and Dominick LaCapra's notion of ‘empathic unsettlement’, the article argues that picturebooks work to unsettle young readers empathetically as part of restorying settler myths about residential schools and implicating young readers in the work of reconciliation.

The Right Honourable Sir Kenneth Keith was the fourth speaker at the NZ Institute of International Affairs Seminar. In this article he describes and reflects upon the role of courts and judges in relation to the advancement of human rights, an issue covered in K J Keith (ed) Essays on Human Rights (Sweet and Maxwell, Wellington, 1968). The article is divided into two parts. The first part discusses international lawmakers attempting to protect individual groups of people from 1648 to 1948, including religious minorities and foreign traders, slaves, aboriginal natives, victims of armed conflict, and workers. The second part discusses how from 1945 to 1948, there was a shift in international law to universal protection. The author notes that while treaties are not part of domestic law, they may have a constitutional role, be relevant in determining the common law, give content to the words of a statute, help interpret legislation which is in line with a treaty, help interpret legislation which is designed to give general effect to a treaty (but which is silent on the particular matter), and help interpret and affect the operation of legislation to which the international text has no apparent direct relation.

This paper offers a short story of Crown sovereignty at the Supreme Court Canada in order to shed light on questions the Court has raised about the legitimacy of Crown sovereignty over territory claimed by First Nations. In skeletal form, the story is simple. The Crown — first Imperial British and later Canadian federal and provincial — asserted sovereignty over what is now Canadian territory, and Canadian courts (and the Judicial Committee of the Privy Council) accepted those assertions without question. Yet the Supreme Court of Canada has lately qualified Crown sovereignty in striking ways, perhaps most notably in speaking of “de facto Crown sovereignty” in reasons released in 2004.The purpose behind this qualification, in line with the Court’s Aboriginal rights and title cases since Calder v British Columbia (Attorney General), seems to be to encourage the Crown to negotiate modern treaties and settle outstandingAboriginal rights and title claims in order to perfect or legitimate Crown sovereignty. As Crown negotiations with First Nations stalled, however, the Court proceeded to develop its own framework for the procedural legitimation of Crown sovereignty, i.e. a framework of procedural safeguards designed to weed out “bad” exercises of Crown sovereignty from legitimate ones.

This article examines the debate relating to reparations for ‘past’ human rights violations, with particular focus on the case of the indigenous ‘Stolen Generation’ in Australia. The ‘Stolen Generation’ is a term used to describe the government-sanctioned practice of forced removals of part-Aboriginal children from their indigenous parents and placement into non-indigenous institutions and homes, which occurred in Australia from approximately 1910–1970. The ‘Stolen Generation’ violations present a unique and difficult legal question for international human rights law because they straddle the divide between ‘historic’ violations and contemporary acts, that is, they were committed by Australia after Australia signed key agreements such as the UN Charter, the Universal Declaration on Human Rights, the Declaration on the Rights of the Child and the Declaration on the Elimination of All Forms of Racial Discrimination, but prior to its ratification of international human rights treaties such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. This means that bringing a claim under international human rights law in relation to the violations raises a number of problems. The object of this article will be to explore whether Australia can be held responsible under international human rights law for the ‘Stolen Generation’ violations and possible avenues of redress. In this regard, the focus of the article will be on the possible claims victims could make to relevant treaty monitoring bodies and the types of obstacles they would face in doing so. These legal questions are also relevant to the wider debate that is taking place in relation to reparations, namely the extent to which a State can be held legally responsible to provide reparations for past violations.

Purpose: The purpose of this qualitative study was exploring what the roles and challenges of health care providers working within Northern Canadian Aboriginal communities are and what resources can help support or impede their efforts in working toward addressing health inequities within these communities. Design: The qualitative research conducted was influenced by a postcolonial epistemology. The works of theorists Fanon on colonization and racial construction, Kristeva on semiotics and abjection, and Foucault on power/knowledge, governmentality, and biopower were used in providing a theoretical framework. Methods: Critical discourse analysis of 25 semistructured interviews with health care providers was used to gain a better understanding of their roles and challenges while working within Northern Canadian Aboriginal communities. Findings: Within this research study, three significant findings emerged from the data. First, the Aboriginal person’s identity was constructed in relation to the health care provider’s role of delivering essential health services. Second, health care providers were not treating the “ill” patient, but rather treating the patient for being “ill.” Third, health care providers were treating the Aboriginal person for being “Aboriginal” by separating the patient from his or her identity. The treatment involved reforming the Aboriginal patient from the condition of being “Aboriginal.”

Full TextThe first law enacted in Canada to protect existing Aboriginal rights was section 35 of the Constitution Act, 1982.2 The first law in Canada to recognize the rights of non-human animals as anything other than property has yet to be enacted. The first Supreme Court of Canada (hereafter referred to as the Court) case to interpret section 35 was R. v. Sparrow.3 The 1990 case confirmed an Aboriginal right of the Musqueam peoples of British Columbia to fish for food, social and ceremonial purposes. Since this precedent-setting case, many similar claims have been brought before the courts by way of the fluctuating legal space created by s.35. Many of these cases have been about establishing rights to fish4, hunt5, and trap non-human animals (hereafter referred to as animals). The Court has developed, and continues to develop tests to determine the existence and scope of Aboriginal rights. These tests primarily embody cultural, political and, to a surprisingly lesser degree, legal forces. One of the principal problems with these tests is that they privilege, through the western philosophical lens, the interests of humans. Animals are, at best, the resources over which ownership is being contested. The Euro-centric legal conceptualization of animals as 'resources' over which ownership can be exerted is problematic for at least two reasons. First, the relegation of animals solely to a utilitarian role is antithetical to Indigenous-animal relationships and therefore demonstrates one of the fundamental ways the Canadian legal system is ill equipped to give adequate consideration to Indigenous law. Second, failure to consider animals' inherent value and agency in this context reproduces the human-animal and culture-nature binaries that are at the root of many of western Euro-centric society's inequities. This paper argues that Aboriginal peoples' relationships with animals are a necessary, integral and distinctive part of their cultures6 and, therefore, these relationships and the actors within them are entitled to the aegis of s.35. Through the legal protection of these relationships, animals will gain significant protection as a corollary benefit. If the Court were to protect the cultural relationships between animals and Aboriginal groups, a precondition would be acceptance of Indigenous legal systems. Thus, this paper gives a brief answer to the question, what are Indigenous legal systems and why are animals integral to them? The Anishinabe (also known Ojibwe or Chippewa) are Indigenous peoples who have historically lived in the Great Lakes region. The Bruce Peninsula on Lake Huron is home to the Cape Croker Indian Reserve, where the Chippewas of Nawash First Nation live. The people of this First Nation identify as Anishinabe. The Anishinabek case of Nanabush v. Deer is a law among these people and is used throughout the paper as an example of Indigenous-animal relationships. Making the significant assumption that s.35 has the capacity to recognize Indigenous law, the subsequent section of the paper asks why we should protect these relationships and how that protection should be achieved. Finally, the paper concludes that both the ability of s.35 to recognize Indigenous-animal relationships, and the judicial and political will to grant such recognition, are unlikely. Indigenous-animal relationships are integral to the distinctive culture of the Anishinabek, however the courts would be hesitant to allow such an uncertain and potentially far-reaching right. This is not surprising given that such a claim by both Indigenous and animal groups would challenge the foundations upon which the Canadian legal system is based. There are many sensitive issues inherent in this topic. It should be noted the author is not of Indigenous ancestry, but is making every effort to learn about and respect the Indigenous legal systems discussed. While this paper focuses on a number of Anishinabek laws; it is neither a complete analysis of these practices, nor one that can be transferred, without adaptation, to other peoples. Finally, Indigenous peoples and animal rights and Indigenous law scholars, such as Tom Regan and Mary Ellen Turpel-Lafond, respectively, may insist on an abolitionist approach to animal 'use' or reject the legitimacy of s.35 itself.7 These perspectives are worthy and necessary. This paper positions itself amongst these and other sources in order to reflect upon the timely and important issue of the legal status of Indigenous-animal relationships. I:WHAT ARE INDIGENOUS LEGAL SYSTEMS? The Law Commission of Canada defines a legal tradition as “a set of deeply rooted, historically conditioned attitudes about the nature of law, the role of law in the society and the polity, the proper organization and operation of a legal system, and the way law is or should be made, applied, studied, perfected and taught.”8 Indigenous legal traditions fit this description. They are living systems of beliefs and practices, and have been recognized as such by the courts.9 Indigenous practices developed into systems of law that have guided communities in their governance, and in their relationships amongst their own and other cultures and with the Earth.10 These laws have developed through stories, historical events that may be viewed as ‘cases,’ and other lived experiences. Indigenous laws are generally non-prescriptive, non-adversarial and non-punitive and aim to promote respect and consensus, as well as close connection with the land, the Creator, and the community. Indigenous laws are a means through which vital knowledge of social order within the community is transmitted, revived and retained. After European ‘settlement’ the influence of Indigenous laws waned. This was due in part to the state’s policies of assimilation, relocation and enfranchisement. 11 Despite these assaults, Indigenous legal systems have persevered; they continue to provide guidance to many communities, and are being revived and re-learned in others. For example, the Nisga’a’s legal code, Ayuuk, guides their communities and strongly informs legislation enacted under the Nisga’a Final Agreement, the first modern treaty in British Columbia.12 The land and jurisdiction claims of the Wet’suwet’en and Gitxsan Nations ultimately resulted in the Court’s decision in Delgamuukw,13 a landmark case that established the existence of Aboriginal title. The (overturned) BC Supreme Court’s statement in Delgamuukw14 reveals two of the many challenges in demonstrating the validity of Indigenous laws: “what the Gitxsan and Wet’suwet’en witnesses[es] describe as law is really a most uncertain and highly flexible set of customs which are frequently not followed by the Indians [sic] themselves.” The first challenge is that many laws are not in full practice, and therefore not as visible as they could be and once were. What the courts fail to acknowledge, however, is that the ongoing colonial project has served to stifle, extinguish and alter these laws. The second challenge is that the kind of law held and practiced by Indigenous peoples is quite foreign to most non-Indigenous people. Many Indigenous laws have animals as central figures. In Anishinabek traditional law, often the animals are the lawmakers15: they develop the legal principles and have agency as law givers. For instance, the Anishinabek case Nanabush v. Deer, Wolf , as outlined by Burrows, is imbued with legal principles, lessons on conduct and community governance, as well as ‘offenses’ and penalties. It is not a case that was adjudicated by an appointed judge in a courtroom, but rather one that has developed over time as a result of peoples’ relationships with the Earth and its inhabitants. An abbreviated summary of the case hints at these legal lessons: Nanabush plays a trick on a deer and deliberately puts the deer in a vulnerable position. In that moment of vulnerability, Nanabush kills the deer and then roasts its body for dinner. While he is sleeping and waiting for the deer to be cooked, the Wolf people come by and take the deer. Nanabush wakes up hungry, and out of desperation transforms into a snake and eats the brains out of the deer head. Once full, he is stuck inside the head and transforms back into his original shape, but with the deer head still stuck on. He is then chased and nearly killed by hunters who mistake him for a real deer. This case is set within the legal context of the Anishinabek’s treaty with deer. In signing the treaty, the people were reminded to respect beings in life and death and that gifts come when beings respect each other in interrelationships.16 Nanabush violated the rights of the deer and his peoples’ treaty with the deer. He violated the laws by taking things through trickery, and by causing harm to those he owed respect. Because his actions were not in accordance with Anishinabek legal principles, he was punished: Nanabush lost the thing he was so desperately searching for, and he ended up nearly being killed. This case establishes two lessons. The first is that, like statutory and common law, with which Canadians are familiar, Indigenous law does not exist in isolation. Principles are devised based on multiple teachings, pre- vious rules and the application of these rules to facts. That there are myriad sources of Indigenous law suggests that the learning of Indigenous law would require substantial effort on the part of Canadian law-makers.17 The second is that animals hold an important place in Indigenous law, and those relationships with animals – and the whole ‘natural’ world – strongly inform the way they relate to the Earth. II: CAN CANADIAN LAW ACCEPT INDIGENOUS LEGAL SYSTEMS? If there were a right recognized under s.35 concerning the Indigenous-animal relationship, what would it look like? Courts develop legal tests to which the facts of each case are applied, theoretically creating a degree of predictability as to how a matter will be judged. Introduced in Sparrow, and more fully developed in Van der Peet, a ‘test’ for how to assess a valid Aboriginal right has been set out by the Court. Summarized, the test is: “in order to be an Aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right.”18 There are ten, differently weighted factors that a court will consider in making this assessment. The right being ‘tested’ in this discussion is the one exemplified in Nanabush v. Deer: the ability of Indigenous peoples to recognize and practice their laws, which govern relationships, including death, with deer and other animals. The courts have agreed that a generous, large and liberal construction should be given to Indigenous rights in order to give full effect to the constitutional recognition of the distinctiveness of Aboriginal culture. Still, it is the courts that hold the power to define rights as they conceive them best aligning with Canadian society19; this is one way that the Canadian state reproduces its systems of power over Indigenous peoples.20 The application of the Aboriginal right exemplified in Nanbush v. Deer to the Sparrow and Van der Peet tests would likely conclude that the Anishinabek do have an integral and distinctive relationship with animals. However, due to the significant discretion of the Court on a number of very subjective and politically sensitive factors, it is uncertain that the Nanabush v. Deer case would ‘pass’ Van der Peet’s required ten factors.21 This is indicative of the structural restraints that s.35 imposes. 22 The questions it asks impair its ability to capture and respect the interrelationships inherent in Indigenous peoples’ interactions with animals. For example, the Court will characterize hunting or fishing as solely subsistence, perhaps with a cultural element. Shin Imai contends these activities mean much more: “To many…subsistence is a means of reaffirming Aboriginal identity by passing on traditional knowledge to future generations. Subsistence in this sense moves beyond mere economics, encompassing the cultural, social and spiritual aspects for the communities.”23 Scholar Kent McNeil concludes that: “regardless of the strengths of legal arguments in favour of Indigenous peoples, there are limits to how far the courts […] are willing to go to correct the injustices caused by colonialism and dispossession.”24 It is often not the legal principles that determine outcomes, but rather the extent to which Indigenous rights can be reconciled with the history of settlement without disturbing the current economic and political structure of the dominant culture. III:WHY PROTECT THE ANIMAL-INDIGENOUS RELATIONSHIP? Legally protecting animal-Indigenous relationships offers symbiotic, mutually respectful benefits for animals and for the scope of Aboriginal rights that can be practiced. For instance, a protected relationship would have indirect benefits for animals’ habitat and right to life: it would necessitate protecting the means necessary, such as governance of the land, for realization of the right. This could include greater conservation measures, more contiguous habitat, enforcement of endangered species laws, and, ideally, a greater awareness and appreciation by humans of animals and their needs. Critical studies scholars have developed the argument that minority groups should not be subject to culturally biased laws of the mainstream polity.24 Law professor Maneesha Deckha points out that animals, despite the central role they play in a lot of ‘cultural defences,’ have been excluded from our ethical consideration. Certainly, the role of animals has been absent in judicial consideration of Aboriginal rights.26 Including animals, Deckha argues, allows for a complete analysis of these cultural issues and avoids many of the anthropocentric attitudes inherent in Euro-centric legal traditions. In Jack and Charlie27 two Coast Salish men were charged with hunting deer out of season. They argued that they needed to kill a deer in order to have raw meat for an Aboriginal religious ceremony. The Court found that killing the deer was not part of the ceremony and that there was insufficient evidence to establish that raw meat was required. This is a case where a more nuanced consideration of the laws and relationships with animals would have resulted in a more just application of the (Canadian) law and prevented the reproduction of imperialist attitudes. A criticism that could be lodged against practicing these relationships is that they conflict with the liberty and life interests of animals.28 Theoretically, if Indigenous laws are given the legal and political room to fully operate, a balance between the liberty of animals and the cultural and legal rights of Indigenous peoples can be struck.29 Indeed, Indigenous peoples’ cultural and legal concern for Earth is at its most rudimentary a concern for the land, which is at the heart of the challenge to the Canadian colonial system. If a negotiated treaty was reached, or anti-cruelty and conservation laws were assured in the Indigenous peoples’ self government system, then Canadian anti-cruelty30 and conservation laws,31 the effectiveness of which are already questionable, could be displaced in recognition of Indigenous governance.32 Indigenous peoples in Canada were – and are, subject to imposed limitations – close to the environment in ways that can seem foreign to non-Indigenous people.33 For example, some origin stories and oral histories explain how boundaries between humans and animals are at times absent: Animal-human beings like raven, coyote and rabbit created them [humans] and other beings. People …acted with respect toward many animals in expectation of reciprocity; or expressed kinship or alliance with them in narratives, songs, poems, parables, performances, rituals, and material objects. 34 Furthering or reviving these relationships can advance the understanding of both Indigenous legal systems and animal rights theory. Some animal rights theorists struggle with how to explain the cultural construction of species difference: Indigenous relationships with animals are long standing, lived examples of a different cultural conception of how to relate to animals and also of an arguably healthy, minimally problematic way to approach the debate concerning the species divide.35 A key tenet of animal-Indigenous relationships is respect. Shepard Krech posits that Indigenous peoples are motivated to obtain the necessary resources and goals in ‘proper’ ways: many believe that animals return to the Earth to be killed, provided that hunters demonstrate proper respect.36 This demonstrates a spiritual connection, but there is also a concrete connection between Indigenous peoples and animals. In providing themselves with food and security, they ‘manage’ what Canadian law calls ‘resources.’37 Because of the physical nature of these activities, and their practical similarity with modern ‘resource management,’ offering this as ‘proof’ of physical connection with animals and their habitat may be more successful than ‘proving’ a spiritual relationship. Finally, there are health reasons that make the Indigenous-animal relationship is important. Many cultures have come to depend on the nutrients they derive from particular hunted or fished animals. For example, nutrition and physical activity transitions related to hunting cycles have had negative impacts on individual and community health.38 This shows the multidimensionality of hunting, the significance of health, and, by extension, the need for animal ‘resources’ to be protected. IV: HOW SHOULD WE PROTECT THESE ABORIGINAL RIGHTS? If the Anishinabek and the deer ‘win’ the constitutional legal test (‘against’ the state) and establish a right to protect their relationships with animals, what, other than common law remedies,39 would follow? Below are ideas for legal measures that could be taken from the human or the animal perspective, or both, where benefits accrue to both parties. If animals had greater agency and legal status, their needs as species and as individuals could have a meaningful place in Canadian common and statutory law. In Nanabush v. Deer, this would mean that the deer would be given representation and that legal tests would need to be developed to determine the animals’ rights and interests. Currently the courts support the view that animals can be treated under the law as any other inanimate item of property. Such a legal stance is inconsistent with a rational, common-sense view of animals,40 and certainly with Anishinabek legal principles discussed herein.41 There are ongoing theoretical debates that inform the practical questions of how animal equality would be achieved: none of these in isolation offers a complete solution, but combined they contribute to the long term goal. Barsh and James Sákéj Youngblood Henderson advocate an adoption of the reasoning in the Australian case Mabo v. Queensland,42 where whole Aboriginal legal systems were imported intact into the common law. Some principles that Canada should be following can also be drawn from international treaties that Canada has or should have signed on to.43 Another way to seek protection from the human perspective is through the freedom of religion and conscience section of the Charter. Professor John Borrows constructs a full argument for this, and cites its challenges, in Living Law on a Living Earth: Aboriginal Religion, Law and the Constitution.44 The strongest, but perhaps most legally improbable, way to protect the animal- Indigenous relationship is for Canada to recognize a third, Indigenous order of government (in addition to provincial and federal), where all three orders are equal and inform one another’s laws. This way, Indigenous laws would have the legal space to fully function and be revived. Endowing Indigenous peoples with the right to govern their relationships would require a great acquiescence of power by governments and a commitment to the establishment and maintenance of healthy self-government in Indigenous communities. Louise Mandell offers some reasons why Canada should treat Aboriginal people in new ways, at least one of which is salient to the third order of government argument: To mend the [E]arth, which must be done, governments must reassess the information which the dominant culture has dismissed. Some of that valuable information is located in the oral histories of Aboriginal Peoples. This knowledge will become incorporated into decisions affecting the [E]arth’s landscape when Aboriginal Peoples are equal partners in decisions affecting their territories.45 V: CONCLUSION A legal system that does not have to justify its existence or defend its worth is less vulnerable to challenges.46 While it can be concluded that s.35 has offered some legal space for Indigenous laws and practices, it is too deeply couched in Euro-centric legal traditions and the anthropocentric cultural assumptions that they carry. The most effective strategy for advancing Indigenous laws and culture, that would also endow many animals with greater agency, and relax the culture-nature, human-animal binaries, is the formal recognition of a third order of government. Lisa Chartrand explains that recognition of legal pluralism would be a mere affirmation of legal systems that exist, but which are stifled: “…this country is a multijuridical state, where the distinct laws and rules of three systems come together within the geographic boundaries of one political territory.” 47 Revitalizing Indigenous legal systems is and will be a challenging undertaking. Indigenous communities must reclaim, define and understand their own traditions: “The loss of culture and traditions caused by the historic treatment of Aboriginal communities makes this a formidable challenge for some communities. Equally significant is the challenge for the Canadian state to create political and legal space to accommodate revitalized Indigenous legal traditions and Aboriginal law-making.”48 The project of revitalizing Indigenous legal traditions requires the commitment of resources sufficient for the task, and transformative change to procedural and substantive law. The operation of these laws within, or in addition to, Canadian law would of course cause widespread, but worthwhile controversy. In Animal Bodies, Cultural Justice49 Deckha argues that an ethical relationship with the animal Other must be established in order realize cultural and animal rights. This paper explores and demonstrates the value in finding legal space where cultural pluralism and respect for animals can give rise to the practice of Indigenous laws and the revitalization of animal-Indigenous relationships. As Borrows writes: “Anishinabek law provides guidance about how to theorize, practice and order our association with the [E]arth, and could do so in a way that produces answers that are very different from those found in other sources.”50 (see PDF for references)

This prospective study was designed to describe problems that arise when Aboriginal people undergo anaesthesia, in order to develop guidelines for anaesthetists who are not accustomed to treating Aboriginal people. Data were collected on 1122 consecutive different individuals undergoing anaesthesia at Royal Darwin Hospital, 24.5% of whom described themselves as Aboriginal. Aboriginal patients were in a poorer physiological state than were non-Aboriginal patients. The prevalence of diabetes mellitus, renal disease and rheumatic heart disease reported in Aboriginal patients was very high. Communication difficulties were more commonly reported in Aboriginal patients; the most common difficulty was apparent shyness or fear, rather than actual language difficulty. The results suggest that the treatment of Aboriginal people involves diagnosis and management of diverse pre-operative medical problems, and that better management may be achieved by learning simple cultural strategies and by adding Aboriginal interpreters and health workers to the anaesthetic team.

The present study examined the predictive properties of Violence Risk Scale–Sexual Offender version (VRS-SO) risk and change scores among Aboriginal and non-Aboriginal sexual offenders in a combined sample of 1,063 Canadian federally incarcerated men. All men participated in sexual offender treatment programming through the Correctional Service of Canada (CSC) at sites across its five regions. The Static-99R was also examined for comparison purposes. In total, 393 of the men were identified as Aboriginal (i.e., First Nations, Métis, Circumpolar) while 670 were non-Aboriginal and primarily White. Aboriginal men scored significantly higher on the Static-99R and VRS-SO and had higher rates of sexual and violent recidivism; however, there were no significant differences between Aboriginal and non-Aboriginal groups on treatment change with both groups demonstrating close to a half-standard deviation of change pre and post treatment. VRS-SO risk and change scores significantly predicted sexual and violent recidivism over fixed 5- and 10-year follow-ups for both racial/ancestral groups. Cox regression survival analyses also demonstrated positive treatment changes to be significantly associated with reductions in sexual and violent recidivism among Aboriginal and non-Aboriginal men after controlling baseline risk. A series of follow-up Cox regression analyses demonstrated that risk and change score information accounted for much of the observed differences between Aboriginal and non-Aboriginal men in rates of sexual recidivism; however, marked group differences persisted in rates of general violent recidivism even after controlling for these covariates. The results support the predictive properties of VRS-SO risk and change scores with treated Canadian Aboriginal sexual offenders.

AbstractColonisation and subsequent policies targeting Aboriginal peoples in Australia have had devastating consequences, including trauma, disadvantage and marginalisation. These effects have passed from generation to generation and continue to manifest in poor health and well-being outcomes, particularly mental health disorders. Innovative and culturally relevant techniques are needed to remedy inequality and address intergenerational trauma. Equine-assisted psychotherapy (EAP)—an experiential therapy involving horses—is a new and increasingly evidence-based treatment approach, which offers potential for working with Aboriginal peoples. This article reviews the literature on outcomes of EAP to consider its potential as a culturally responsive therapy to treat trauma and increase well-being for Aboriginal people in Australia.

Introduction The assessment of social and emotional wellbeing (SEWB) among Aboriginal people in Australia and elsewhere is complex and challenging task. A culturally appropriate tool for screening SEWB among Aboriginal adults known as the Here and Now Aboriginal Assessment (HANAA) has been developed and evaluated. The HANAA is based on exploring key domains of Aboriginal concept of SEWB and is based on a yarning process aimed to initiate a semi-structured interview that covers each domain. Over the last ten years the HANAA has been widely used by Aboriginal mental health service providers around Australia and elsewhere. Objectives There have been multiple requests by service providers for a similar tool to be developed for young Aboriginal people. The aim of this study was to develop a youth version of the HANAA. Methods A Working Group was established to guide the development of the youth HANAA. This work included discussion of assessment domains, prompt words and other adolescent specific considerations that were needed. The evlauation process was also discussed. Results The adult version of HANAA was well accepted by participants. Reliability was good with kappa agreements between Aboriginal and non-Aboriginal interviewers ranging from 0.5 to 1.0. Agreement between interviewers and treating clinicians on ecommended course of action was good. Conclusions Based on the previous field test results, it is expected that the youth HANAA will also be a culturally appropriate and useful tool which can be used by a range of service providers with differing levels of mental health training to assess SEWB among young Aboriginal people. Disclosure No significant relationships.

Fetal Alcohol Spectrum Disorders (FASD) are caused by consumption of alcohol during pregnancy and the prevalence of these disorders in Canada is not well established. Statistics Canada’s Aboriginal Children’s Survey (2006) was used in the current study to assess the prevalence of FASD among Aboriginal children living off reserve across Canada. Characteristics of Aboriginal children with or without a diagnosis of FASD and living in Western Canada were also assessed. Rates of FASD were higher in Alberta and Manitoba than other provinces and territories. For these children who were diagnosed with FASD half received treatment for FASD and treatment rates did not vary across provinces. In Western Canada, FASD was more common among children identified as First Nations, and among older children. Rates of FASD were also higher for Aboriginal children who lived in low income situations, who had experienced food insecurity, or who lived with foster parents. Therefore, Aboriginal children with FASD likely experience other life challenges and these factors should be considered when treating these young children.

Communitarianism acknowledges and values, and not just instrumentally, the bonds that unite and identify communities. Communitarians also value community per se. This paper argues that trust is likely to be stronger in communities where these bonds are greater. Equity in health care is a social phenomenon. In health care, it is apparent that more communitarian societies, such as Scandinavia and within Aboriginal Australia, are likely to value more equity-orientated systems. Where, as in the latter case, this desire for equity takes place against a background of the powerful dominant (white) society treating the minority (black) society as dependent, Aboriginal trust in Australian society and in its public institutions is eroded. Lack of trust and inequity then come to the fore. This paper discusses institutional trust as a facilitator of equity in health care in the specific context of Indigenous health. The example used is Australian Aboriginal health but the principles would apply to other Indigenous populations as in for example South America.

The systems of education in the world have adopted many philosophies of education that are either skewed toward change or committed to conservancy. African philosophy and African philosophy of education form an activity and a process which is context-sensitive, whereby the relativity factor defines the peculiarity of thinking about education. However, alien philosophies have permeated the systems of education in Africa. The fulcrum of this treatise is to initiate thought which is necessary to avert this contemporary situation facing education theory, policy, and practice in Africa by interleaving African ontology and epistemology to augment the systems of education. Additionally, this treatise brings to the frontline the essence of African thought in education. This treatise underlines that education that teaches the learner about learning is insufficient, because the focal point of such education is to draw its attention only to the essentials for the longevity of an alienated pedagogy itself as well as to perpetuate the supremacy of foreign influence.

IntroductionSkin is important in Australian Aboriginal culture informing kinship and identity. In many remote Aboriginal communities, scabies and impetigo are very common. Untreated skin infections are painful, itchy and frequently go untreated due to under-recognition and lack of awareness of their potential serious complications. We hypothesise that the skin infection burden in remote Aboriginal communities can be reduced by implementing streamlined training and treatment pathways integrated with environmental health and health promotion activities, tested in the See, Treat, Prevent (SToP skin sores and scabies) trial.Methods and analysisSToP will evaluate a skin control programme using a stepped-wedge, cluster randomised trial design with three intervention components (the ‘SToP activities’): (1) seeing skin infections (development of training resources implemented within a community dermatology model); (2) treating skin infections (employing the latest evidence for impetigo, and scabies treatment); and (3) preventing skin infections (embedded, culturally informed health promotion and environmental health activities). Four community clusters in the remote Kimberley region of Western Australia will participate. Following baseline data collection, two clusters will be randomly allocated to the SToP activities. At 12 months, the remaining two clusters will transition to the SToP activities. The primary outcome is the diagnosis of impetigo in children (5–9 years) at school-based surveillance. Secondary outcome measures include scabies diagnosis, other child health indicators, resistance to cotrimoxazole in circulating pathogenic bacteria, determining the economic burden of skin disease and evaluating the cost effectiveness of SToP activities.Ethics and disseminationThis study protocol was approved by the health ethics review committees at the Child and Adolescent Health Service (Approval number RGS0000000584), the Western Australian Aboriginal Health Ethics Committee (Reference number: 819) and the University of Western Australia (Reference RA/4/20/4123). Study findings will be shared with community members, academic and medical communities via publications and presentations, and in reports to funders. Authorship for all publications based on this study will be determined in line with the Uniform Requirements for Manuscripts Submitted to Biomedical Journals published by the International Committee of Medical Journal Editors. Sharing results with organisations and communities who contributed to the study is paramount. The results of the SToP trial will be shared with participants in a suitable format, such as a single summary page provided to participants or presentations to communities, the Kimberly Aboriginal Health Planning Forum Research Subcommittee and other stakeholders as appropriate and as requested. Communication and dissemination will require ongoing consultation with Aboriginal communities to determine appropriate formats.Trial registration numberACTRN12618000520235.

Objective. To determine rates and risk factors for self-discharge by Aboriginal medical inpatients at Alice Springs Hospital. Methods. Prospective cohort study. Interviews were conducted in primary language by Aboriginal Liaison Officers, from July 2006 to August 2007. Topics included understanding of diagnosis, satisfaction with services and perceptions of staff and environment. Risk factors for self-discharge were then determined prospectively. Results. During the study period 202 (14.7%) of 1380 patients admitted to general medical units at Alice Springs Hospital, were interviewed. Self-discharge rates for all admissions were significantly lower during the study period than they had been previously (pre-study, mean 22.9 ± standard error 0.3%; study, 17.0 ± 0.2%) (P < 0.001). Most interviewees (73.4%) did not know their reason for admission (73.4%) or estimated length of stay (82.3%). Forty interviewees (19.8%) self-discharged. Mean monthly self-discharge rates differed between the three medical units (Unit A, 13.9 ± 0.3%; Unit B, 17.3 ± 1.37%; Unit C, 20.0 ± 0.4%) (P = 0.005). Multivariable predictors of self-discharge included male sex (hazard ratio (HR) 2.4; 95% confidence interval (CI) 1.1, 5.2), a past history of self-discharge (HR 3.2; 95%CI 1.5, 6), planned transfer to a tertiary referral centre (HR 3.8; 95%CI 1.3–7.4) and a desire to drink alcohol (HR 4.5; 95%CI 1.8–10.2). Conclusions. Physician, institutional and patient factors all contribute to self-discharge. Improving cultural safety may be the key to lowering self-discharge rates. What is known about the topic? Rates of self-discharge by Aboriginal adults in Central Australia are the highest reported worldwide. Previous studies have been retrospective and focussed on patient demographics without addressing the environmental and cultural contexts in which self-discharge occurs. What does this paper add? In this acute care setting, we found a pervasive failure to communicate effectively with Aboriginal patients. Consequently, most patients were unaware of their diagnosis or length of stay. Self-discharge was a common practice; nearly half of all previously admitted patients had self-discharged in the past. We demonstrate that physician, hospital and patient factors all contribute to this practice. Prospectively determined risk factors included the treating medical team, the need for transfer outside Central Australia, and patient factors such as male gender and alcohol dependence. Self-discharge rates fell significantly with Aboriginal Liaison involvement. What are the implications for practitioners? Cross-cultural communication skills must be markedly improved among medical staff caring for this marginalised population. Critical to reducing rates of self-discharge are improvements in institutional cultural safety by involving Aboriginal Liaison Officers and family members. However, persistently high self-discharge rates suggest a need to redirect medical services to a more culturally appropriate community-based model of care.