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Aboriginal and Treaty Rights in the Maritimes: The Marshall Decision and Beyond

Price: $ 33.00

Thomas Isaac

216 pages, index, bibliography, paper, 6 x 9, fall, 2001
ISBN 1-895830-19-2 / ISBN13 978-1895830-194

1: Historical Overview of Aboriginal and Treaty Rights in the Maritimes
 Introduction
 Early Maritime Treaties
 Royal Proclamation of 1763
 Current Situation in the Maritimes
 Conclusion

2: Legislation and Constitutional Provisions Affecting Aboriginal and Treaty Rights
 Introduction
 The Indian Act
 Section 88, Indian Act
 Constitutional Amendments
 Section 25, Canadian Charter of Rights and Freedoms
 Section 35, Constitution Act, 1982
 Conclusion

3: Judicial Decisions Affecting Aboriginal and Treaty Rights
 Introduction
 Pre-1982 Decisions
 Post-1982 Decisions
 R. v. Simon (1985)
 R. v. Sioui (1990)
 R. v. Sparrow (1990)
 R. v. Horseman (1990)
 R. v. Van der Peet (1996)
 R. v. Adams (1996)
 R. v. Badger (1996)
 Delgamuukw v. British Columbia (1997)
 R. v. Sundown (1999)
 Maritime-Specific Decisions Post-1982
 Conclusion

4: Aboriginal Title and the Maritimes
 Introduction
 Aboriginal Title in General
 Delgamuukw v. British Columbia (1997)
 Proof of Aboriginal Title
 Justifying an Infringement of Aboriginal Title
 Consultation
 Extinguishment of Aboriginal Title
 Related Maritime Decisions
 The Maritimes and Aboriginal Title
 Section 35(3) of the Constitution Act, 1982 and Modern Treaties
 Conclusion

5: The Marshall Decisions
 Introduction
 Nova Scotia Provincial Court
 Nova Scotia Court of Appeal
 Marshall No. 1 (September 17, 1999)
 Marshall No. 2 (November 17, 1999)
 Evidentiary Rules and Historical Evidence
 Conclusion

6: Government Responsibilities Highlighted by Marshall
 Introduction
 Governments' Authority to Regulate
 Ministerial Discretionary Authority
 Provincial Jurisdiction
 Practical Measures
 The Honour of the Crown
 The Federal Perspective
 Conclusion

7: The Impact of Marshall
 Introduction
 Judicial Application of Marshall
 Burnt Church and Indian Brook
 The Federal Perspective
 Conclusion

Appendixes
 Decisions Relating to Maritime Treaties
 Marshall No. 1 (Edited)
 Marshall No. 2 (Edited)

Index

Whether involving the lobster fishery or logging, there are many complex questions surrounding First Nations’ rights in the Maritimes. Unlike areas of Canada where treaties dealt with Aboriginal rights to land and other rights, the Maritime treaties of the 1700s were brief documents of peace and friendship.

In analyzing First Nations’ rights in the Maritimes, the author first reviews Canadian jurisprudence dealing with Aboriginal and treaty rights, rules for the interpretation of treaties, and the effect of constitutional provisions on such rights. He then looks at specific cases dealing with the Maritimes including cases addressing the existence, or not, of Aboriginal title; whether the Royal Proclamation applies in the Maritimes; gathering rights of Aboriginal peoples; their rights in reserve lands; and, most importantly, the effect to be given to the treaties of peace and friendship entered into between the area’s First Nations and the Crown. Of particular importance to this analysis is the Marshall decision in which, the author argues, the Supreme Court of Canada went beyond any of its previous decisions not only by liberally interpreting the treaty but adding rights not specifically mentioned in the treaty. The analytical approach used by the Court in Marshall, and the author’s commentary, will interest all those dealing with resource extraction, including forestry, mining, oil and gas.  

While this book focuses on the Maritime provinces, the principles discussed are equally applicable in all areas of Canada where formal treaties dealing with land and harvesting rights have not been signed. The author takes a multi-disciplinary approach to the subject so as to appeal to First Nations, social scientists, lawyers, researchers, and those seeking to understand Aboriginal issues in Canada today.

Thomas Isaac is the author of Aboriginal Law: Cases, Materials and Commentary (all three editions), two other books, and numerous articles on Aboriginal issues in various legal and social science journals. He has advised provincial, territorial, municipal and First Nations governments on Aboriginal issues, which included serving as chief treaty negotiator for the British Columbia government and as assistant deputy minister responsible for establishing Nunavut in the Northwest Territories government. He practices law with McCarthy Tétrault in Vancouver, BC.

Price: $ 33.00