Leslie Haddock and Kent McNeil, August, 2022 | This bibliography does not purport to be comprehensive, especially insofar as non-legal materials are concerned. Also, although we have done our best to be as accurate as possible, no doubt there are errors, for which we ask your forgiveness. An attempt has been made to include works that deal with more than one topic in the Table of Contents under each of the relevant headings.
Kristen Clark, Leslie Haddock, and Kent McNeil , August 1994, with additions made in September 2022 | This bibliography does not purport to be comprehensive, especially insofar as non-legal materials are concerned. Also, although we have done our best to be as accurate as possible, no doubt there are errors, for which we ask your forgiveness.
An attempt has been made to include works that deal with more than one topic in the Table of Contents under each of the relevant headings.
Kent McNeil for the Centre for First Nations Governance, 2022 | Explore the unbroken history of First Nations right to self-governance, a right rooted in our occupation and our own jurisdiction over the land before contact. In recent years aboriginal and treaty rights and title have been addressed by Canadian courts and, for many First Nation citizens, the movement for self-governance is a way to reaffirm authority in relation to the land.
Centre for First Nation Governance, 2017 | Over 40 First Nations leaders and administrators, academics and other experienced individuals gathered for three days at Carleton University in October 2017 at the Transitional Governance Think Tank. Participants discussed how First Nations in Canada can get beyond the Indian Act and create self-determining governance, including jurisdiction over our territories. On the last half day, participants worked together to summarize the challenges and opportunities around engaging our people, taking back our place on the land, building governance structures, and re-establishing our laws and jurisdiction. Participants also discussed how we can create the capacity, resources, tools and instruments, and other things needed to move forward. Notes taken during roundtable discussions are summarized in this publication
Maria Marletto, 2008 | The Crown’s duty to consult and accommodate Aboriginal and treaty rights is a fundamental matter of social justice that invokes very solemn legal obligations. Reconciliation and win-win situations can be achieved with good faith negotiations if the federal and provincial Crown immediately endorses and commits to a significant change in their current consultation and accommodation policies and practices. Our courts have established and developed legal principles concerning enforceable Crown obligations that provide shape and substance to the consultation and accommodation process. The courts have also underscored the need for reconciliation and negotiated solutions to outstanding aboriginal title and treaty rights disputes
John Borrows, 2008 | Six generations have passed since the Indian Act was introduced and the seventh generation, now rising, will be healthier and our communities will enjoy more freedom if we assist them in getting rid of the Indian Act. Communities and the next generation can overcome the Indian Act’s hold over all aspects of their life by following their own fundamental teachings. Following his own Anishnabe teachings of the Seven Grandfathers, John Borrows demonstrates how these seven principles can guide action towards lessening this hold of the Indian Act on First Nations.
Emmanuel Brunet-Jailly, 2008 | This paper examines the Canadian Aboriginal fiscal inter-governmental system by comparing it to other countries, and also focuses on the key characteristics of the Canadian system. The overarching argument is that inter-governmental relations play a part in maintaining the social and economic underdevelopment of First Nations. These relations, either regulated under the Indian Act or under self-governance agreements, lead to a system of mixed governance that do not allow for a successful articulation of social and economic development of Aboriginal communities into the global economy. In other words, this paper argues that contrary to the recognition of the principle of self-government, administrative Aboriginal-Federal inter-governmental relations actually produce relations of dependence. The data presented in this paper makes the case that these relations of dependence take varied forms of jurisdictional, administrative, and financial dependency, all of which are also used to justify poor funding levels.
Ken Coates, 2008 | It is important to understand both the origins and impact of the Indian Act. The Indian Act reflected the core assumptions held about Indigenous peoples by the dominant Euro-Canadian society in the mid to late 19th century. Its basic premises, summarized as providing for “civilization, protection and assimilation,” were that the Government of Canada viewed Aboriginal people as wards, that Indigenous communities and governments were incapable of managing their affairs, that the nation sought eventually to integrate Indigenous cultures into the Canadian mainstream, and that the First Peoples had to be separated from the rest of Canadian society until they were ready for the transition. The Indian Act was, and is, a powerful tool in the hands of the federal government, giving federal civil servants the authority to manage band affairs, supervise Indigenous lands and trust funds, direct the personal and family lives of individual Aboriginal people, and deny basic Canadian civil and personal rights to hundreds of thousands of “wards” of the federal state.
Dale Turner & Audra Simpson 2008 | We hope to show that Indigenous peoples are part of, indeed integral to, the evolving global community, and that the well being of our communities depends on how well our leaders can effectively participate in this complex, often challenging world.
Tina Dion, 2008 | There are two major components to this paper. In the first part, American and Canadian approaches to treaty making, including the development of Indian policy, are examined. The second part of this paper examines the comparative historical governmental authority and legal justification in respect of Indian nations and their lands. This paper concludes with a brief discussion of how fiduciary duty legal principles may affect Treaty First Nations and their rights.
Robert B. Anderson, Bettina Schneider, and Bob Kayseas, 2008 | Throughout the middle decades of the 20th century, Indigenous people, along with other poor populations of the world, were the target of a wide range of initiatives, efforts and programmes to assist in economic development. In large part, these top-down, externally developed, modernisation-based efforts failed to improve the economic circumstance of the world’s poor including Indigenous people, while at the same time often damaging their traditional economies, leaving communities less self-reliant and therefore worse off than before. Reacting to these circumstances and the centuries of colonisation that caused them, Indigenous peoples are struggling to reassert their nationhood within the states in which they find themselves. For all, claims to their traditional lands and the right to use the resources of these lands are central to their drive to nationhood.
Richard Missens, 2008 | For First Nations people the reestablishment of social governance is an endeavor in finding a balance between First Nations’ culture, custom, tradition and protocol and Canadian social, economic, political and social systems. In a manner of speaking it is the process of “getting the best of both worlds” – whereby the developments create a synergy between First Nations cultural traditions and European Canadian systems. For First Nations communities – and their governments – It is important that the dynamics of finding this balance continue, and once established and implemented it is eventually revisited. Through this process First Nations people will ensure that the rebuilding of their governance (nation-building) ensures their process of self-determination and is better equipped to leverage life in the larger Canadian society.
Patricia Mcguire, 2008 | There are three main topics discussed in this literature review. First, Anishinaabe people have begun to record their stories about clans. Their ideas offer a different understanding dealing with relationships, social order and societal interactions within Anishinaabe communities. Second, colonial ideas about clan relationships are presented. Clans, the social and political nature of Anishinaabe society, are viewed differently. Social scientists studying the Anishinaabe had their own ideas about clans. Some of these ideas, while good, missed the nature of societal relationships that clans represented. Some originated from close relationships with communities studied. In the final section, Anishinaabe restoration of justice and dispute resolution will be discussed in this context.
John Milloy, 2008 | In 1867, with the passage of the British North America Act, Canadians began the process of nation building. Over the next few years, new provinces emerged – Manitoba, British Columbia, Prince Edward Island – and Canada became, by 1873, a nation from sea to sea. At the same time, by way of three legal instruments, the federal government was equipped to function as an imperial power. Section 91:24 of the B.N.A Act assigned to it the responsibility for all “Indians and lands reserved for Indians” – a responsibility that had been carried by the Imperial government for the previous century. The Rupert’s Land Order in Council transferred the vast Hudson’s Bay territories to Canada’s exclusive jurisdiction. And finally, in the Indian Act of 1869, the government set out its own vision of future Canada-First Nations relations: an aggressive colonizing project of assimilation not only of First Nations in those territories but of all First Nations throughout the nation. Successive federal governments, Liberal and Conservative, over the next century, in amendments to the 1869 Act and in new Acts, spelled out, in increasing detail, a colonial structure that passed control of First Nations people and communities into the hands of the Indian Affairs Department. That structure survived without effective opposition or change until 1969.
Martin Cannon, 2008 | This paper is concerned with the history of injustice surrounding the 1985 Indian Act amendments.1 These injustices have attracted the attention of both policy makers and Native women’s organizations in past years. Demographers have also predicted these amendments will lead eventually to the legal assimilation of status Indians in Canada.2 In this paper, I reflect on these matters from an Indigenous and scholarly perspective. I will explore the overall position and responsibility of men in relation to sex discrimination as it is being directed toward Aboriginal women. In doing so, I suggest that status injustices no longer belong exclusively to women. I make this point by exploring scholarly literature with hopes of re-envisioning histories of gender-based exclusion and politics. I suggest that discrimination takes place at the intersection of racism and sexism in Indian policy.
James Hopkins, 2008 | This paper is about looking for every possible opportunity to close the gap, to join ideas on tax policy with First Nations sovereignty, and recognizes that tax policy and sovereignty are intertwined; that finances too, the money used to pay for First Nations governance is directly linked to the capacity of First Nations people to actualize sustainable self-governance. In its current form, Canadian tax policy characterizes First Nations governments as mere public expenditures when it should be looking to develop capacity and resources for First Nations communities.
Wenona Victor, 2007 | The purpose of this current paper is to share what I have come to understand so far in my exploration and application of Indigenous epistemologies with respect to the concept of justice. (Epistemology, by the way is one of my all time favorite English words. It has to do with the acquisition of knowledge and exploring how it is we know what we know.)
Warren Weir, 2007 | This paper can be divided up into five useful and stand-alone packages. Section One: Prevailing Views on Aboriginal Entrepreneurship and Small Business; Section Two: Defining Small Business and Entrepreneurship; Section Three: The Current State of First Nation Small Business & Entrepreneurship in Canada; Section Four: Promoting, Supporting, and Leading First Nation Small Businesses and Entrepreneurs; Section Five: Growth of Small Businesses: Other Opportunities and Challenges
Val Napoleon, 2007 | Where does law come from an what are it functions? How we think about law is shaped by our experiences and history. As Indigenous peoples, we have gained much of our current understanding of law from our experiences with the western legal system in Canada. Many Indigenous peoples have come to associate “law” with power, punishment, hierarchy, and bureaucracy We might think about law so that it is more helpful to Indigenous peoples’ work generally. Thinking about law raises questions about its legitimacy and authority, and how law changes over time. Such rigorous critical thinking can support the building of non-colonial relationships among Indigenous peoples and between Indigenous peoples and Canada.
Paul Chartrand, 2007 | This paper is about Metis and First Nations people, and the relations or relationships between them. I shall call these relations Miyo-W_hk_htowin. The paper tries to assist the Centre’s goal of looking for ideas that may be useful in thinking about political leadership and how ‘self-government’ might be brought about, particularly by cooperative political action. Who will argue against the idea that there is more strength in political unity than in disunity? The paper discusses relations between Metis (or as said in the old way: ‘Michif’) and First Nations people. It looks at relations as they were kay_s ohci, (a long time ago) and as they are anohc (now). This discussion looks for ideas and ways of encouraging cooperative relations so that everyone can benefit as we strive to realize self-government. That is what this paper is about.
Patricia Tait, 2007 | The position, that control over peace making systems must rest with the First Nations, has been reinforced by justice reports authored by Canadian government sectors. Non-Indigenous interventions have impaired the First Nations community’s inherent ability to provide a peaceful and safe environment for all their citizens. The author does not equate non-indigenous understanding of justice with the limited definition attached to criminal justice systems. Rather, the term justice that is used is reflective of wellness, fairness and balance for First Nations and their people within Canadian society. Without a doubt these self-determined forms of justice, First Nations community controlled, community empowered models of intervention, are better equipped to deal with internal issues in a more wholistic way. This justice definition requires recognition of the wisdom of First Nations people to define, address and heal the wounds of their own.
Keith Carlson, 2007 | This paper has three goals: 1) To briefly outline the process through which Shxw’õwhámél came to adopt the Siyá:m System in 1994; 2) to highlight certain concerns about the limitations of that system as articulated by community members in 2006; and 3) to provide a detailed discussion of those historical government and missionary actions that served to isolate and curtail inter-village family relationships.
Gordon Christie, 2007 | This paper offers some thoughts about where energy could be spent in trying to push the law in certain directions, so that self-government rights develop as expansively as possible. Being simultaneously cautious and pro-active about the use of Canadian law must be part of this strategy, and this work must be part of a full-spectrum approach to the issue, with Aboriginal nations applying non-legal arguments and other strategies to bolster legal arguments they will be able to muster around self-government claims.
Evelyn Peters, 2007 | Urban reserves provide considerable opportunities for First Nations economic development. The purpose of this paper is to describe some of the benefits of pursuing this route to economic development, explore different routes available to First Nations wishing to establish urban reserves, and to summarize existing work that addresses one of the major challenges in creating urban reserves – negotiating with municipalities.
Frances Abele, 2007 | This report finds that the Indian Act appears to be a legislative fossil. Its emphasis on the authority of the executive branch of the federal government over individuals and communities shapes virtually every aspect of governance. This limits the ability of Band governments to be responsive to their members.
Shin Imai, 2007 | The Indian Act has been criticized for giving Chief and Council too little power to make their own decisions. The Act has also been criticized for giving Chief and Council too much power to make decisions. Some people point out that Chief and Council do not have enough accountability to members of the community. The fact is, both criticisms are valid. This report shows how the structure of the Indian Act creates this contradictory state of affairs and how to avoid such contradictions when the First Nation moves out of the Indian Act to a more suitable First Nation designed government system. A government system designed by First Nations will see a much reduced or eliminated role for the federal government. But this will not be enough.
Kent McNeil, 2007 | Aboriginal governments have the authority to become engaged on a government-to-government under existing Canadian law and do not have to seek permission to exercise their jurisdiction from the federal government, provincial governments, or Canadian courts.
Tim Raybould, 2006 | First Nations, because of the historical burden that has been placed on them since the Indian Act and the inability to turn assets into capital, have had to overcome extremely burdensome obstacles to reach even the ‘level playing field’ on which to try and start their commercial enterprises that non-aboriginal businessmen and women, entrepreneurs and industrialists take for granted.
Kiera Ladner ,2006 | The important questions that need to be asked today do not concern the pre-existence of Indigenous government but instead raise question of the existence of Indigenous government today. Are Indian Act band councils governments? What about ‘traditional’ governments? What about self-government? This paper responds to such questions concerning the status of Indigenous governments as governments and considers their place in the federal and constitutional order of Canada.
Kent McNeil, 2002 | Parts 1 and 2 of this article focuses on the ways in which Aboriginal title might have been extinguished prior to the enactment of s.35. The first of these was through voluntary surrender of the title to the Crown by means of an agreement in the form of a treaty or modern land claims settlement. Aboriginal title could also have been extinguished unilaterally by or pursuant to legislation. As the legal issues raised by legislative extinguishment are numerous and complex, we will spend the most time on this second means of extinguishment. Finally, Part 3 will be devoted to a critical examination of the Chippewas of Sarnia case and the application of judicial discretion to Aboriginal title claims in the courts.
John Borrows, 2001 | Oral history presents both risk and insight because it simultaneously intermingles the events that took place in the past and the meaning that people ascribe to those events. As the Royal Commission on Aboriginal Peoples noted “oral history is enmeshed with the stories of a lifetime”. The blending of incident and interpretation presents special problems of verification for oral history sometimes different from those contained in a documentary reconstruction of the past.
Beverley K. Jacobs, 2001 Having to write this paper as to Delgamuukw’s effect on treaties in Ontario, a difficulty arises because of the fact that there were no treaty relationships formed between the Gitksan and Wet’suwet’en Nations in British Columbia with European colonizers. What can be reviewed, however, is the relationship to the land, as this is a universal concept that is recognized and understood by all Aboriginal Nations.
Kent McNeil, 2001 | A central tenet of the common law of Aboriginal title is that it is inalienable other than by surrender to the Crown. This rule has been affirmed repeatedly by courts in leading decisions in Canada, Australia, and New Zealand. Indian title has been held to be inalienable in the United States as well,4 where after the American Revolution it could only be extinguished by the United States acting through Congress. But what is the basis for this restriction on alienation?
Donald E. Wakefield, 2000 | The decision of the Supreme Court of Canada in Delgamuukwi has created considerable uncertainty in those areas of Canada where there are unsettled Comprehensive Land Claims. By defining Aboriginal title as the right to the land itself and entitling the Aboriginal titleholder to determine how the lands are used without much guidance on determination of such title, the court has left Aboriginals and non-Aboriginals alike with little assistance on how to resolve land use issues. The court’s declaration that the same lands could have more than one Aboriginal titleholder is a further complicating factor in the case of overlapping land claims. While the court made a strong plea for negotiated settlements, rather than litigation, the court ultimately has little control over whether fruitful negotiations are carried out or litigation is resorted to. On the other hand, the federal government, acting through the federal parliament, can and should shape land claim negotiations with a focus on new treaties as the better alternative to litigation.
Gordon Christie, 2000 | Gordon Christie of Osgoode Hall Law School, argues that the potential gains arising out of the Delgamuukw judgement must be approached very carefully by Aboriginal peoples, particularly within the context of a situation where the possibilities for reaching a real reconciliation between the Crown and First Nations are quite limited. Christie notes that if “an Aboriginal people feels compelled to participate in the modern treaty process, they must work especially hard to bring into the process those doctrine and principles from Delgamuukw they can properly ‘strategize,’ to drive the governments of Canada into moving––however small the distance––towards respecting the deep connection these peoples have had, and continue to have, to their lands.”
Kent McNeil, 2000 | In Delgamuukw v. British Columbia, the Supreme Court of Canada finally addressed the issue of the nature and content of Aboriginal title head on, after dancing around the matter for many years. While not deciding whether the Gitksan (also spelled Gitxsan) and Wet’suwet’en Nations who brought the case to court actually have title to the lands they claim, the Court did provide a definition of Aboriginal title to guide trial courts and negotiators as they grapple with the issue.
Darwin Hanna, 2000 | The highly heralded decision of the Supreme Court of Canada in Delgamuukw v. British Columbia has created a new era of hope for the recognition of Aboriginal rights and title as the Court recognized that Aboriginal rights and title may be established through oral history evidence.
Taiaiake Alfred, 2000 | The emergent consensus of indigenous people involved with the British Columbia TreatyCommission (BCTC) is that the current process has failed. The shared rational and emotionalfoundation of this consensus is a realization that the Treaty Commission process is at its coremorally bankrupt and driven by the twin objectives of placating natural resource industry lobbiesand the coercive imposition of the federal and provincial governments’ shared assimilationistagenda. It is a coherent and general conclusion among indigenous people that the failed attempt tonegotiate a structural recognition of their constitutional rights to land and self-government withinthe BCTC is proof that the federal and provincial governments have neither the determination orsincere desire to resolve the fundamental sources of racial and political conflict that exist in BritishColumbia
John Borrows, ~1999 This paper looks at many of the issues surrounding Delgamuukw decision and treaty making in Canada. He concludes that the situation is by no means a simple one and that treaty relationships between First Nations and the Crown are being diminished and strengthened simultaneously. First Nations, he argues, must be aware of how Delgamuukw can be used in order to strengthen treaty relations and to build better treaties. They also need to be aware of some of the pitfalls involved in relation to what is fundamentally a colonial legal system.
Sakej Henderson, ~1999 | Professor Sakej Henderson of the University of Saskatchewan looks more generally at matters surrounding questions regarding the proof of Aboriginal title in the legal system. In a far-ranging D/GNP paper on “The Proof of Aboriginal Title.” Professor Henderson addresses a theme which runs through much of the Delgamuukw / Gisday’wa National Process research: in the implications of the colonial roots of Crown law.
Kent McNeil,1999 | This paper will examine this issue of onus of proof of Aboriginal title. It will start by discussing possible explanations for placing the onus on Aboriginal peoples. It will then explain how the onus can be met by relying on present or past possession of land, thereby forcing the Crown to prove its own title. Finally, it will suggest alternative ways of protecting Aboriginal title to lands that are presently in Aboriginal possession.
Maria Morellato,, 1999 | In light of the evolving jurisprudence surrounding the Crown’s fiduciary obligation towards aboriginal peoples, one would be hard pressed to identify an area of Crown decision making which is not potentially impacted in some measure by this obligation. This circumstance arises from pronouncements by the Supreme Court of Canada in recent cases which affirm that the Crown’s fiduciary obligation is not only limited to Crown management of reserve lands and resources but also extends to the Crown’s decision making and legislative authority over lands and resources subject to aboriginal rights. Accordingly, this paper will trace the genesis and development of the Crown’s responsibility and accountability as legally enforceable obligations towards First Nations, with particular emphasis on Supreme Court of Canada decisions which have directly addressed the nature and scope of the Crown’s fiduciary duties.
Sheldon Cardinal, ~1999 | A good deal of the research of the Delgamuukw / Gisday’wa National Process has been focussed on treaties and treaty making. Sheldon Cardinal in his research paper on “Delgamuukw: The Implications for Treaty First Nations With Numbered Treaties,” concludes that “the sun has not stopped shining, the rivers have not stopped flowing and the grass has not stopped growing”: the hunting, fishing and trapping rights as well as other rights of treaty First Nations still continue. The federal government, Cardinal asserts, has seriously breached its obligations to Treaty First Nations. Accordingly, he argues, it should provide financial compensation for illegitimately restricting treaty rights.
Kimberly A. Thomas, ~1999 |In order to understand the limitations of Aboriginal title, I will discuss the nature of First Nations’ attachment to their lands, citing traditional values, world view and philosophy regarding the land. As I recognize the uniqueness of each First Nation, I will utilize my own Haudenosaunee4 culture to illustrate traditional Haudenosaunee perceptions of property. I will then discuss two case studies involving two Haudenosaunee Nations5 to illustrate my view on when current economic development activities will likely be perceived by Canadian courts as irreconcilable with the nature of the Haudenosaunee’s attachment to our lands. The paper will conclude with providing practical options for First Nations when pursuing economic development on Aboriginal title lands.
~1999 | The federal and provincial governments are able to rely on the proposition that the onus of establishing both Aboriginal title5 and its infringement lies with the Aboriginal people6 the status quo prior to the Delgamuukw decision is often the status quo today. This is the knot which this paper will attempt to loosen.
Joanne R. Lysyk, 1999 | The first thing to note about Delgamuukw is that compensation for infringements of aboriginal title is dealt with as one element of the overall justification analysis. In order to justify an infringement of aboriginal title, a number of criteria must be satisfied, the two most significant being consultation and compensation.
Marlie Beets, 1999 | In the face of the huge impact that court rulings have on forestry work, many in the forest industry don‚t have a good understanding of aboriginal rights and title issues and feel powerless to deal with them in a constructive way. A presentation by Marlie Beets, Vice President, and Aboriginal Affairs Council of Forest Industries to the Vancouver Section of the Canadian Institute of Forestry & Vancouver Wood Forum.
Wet’suwet’en Hereditary Chiefs, 1998 | December 11, 1998, was the first anniversary of the Delgamuuk -Gisdaywa judgement This historic decision by the Supreme Court of Canada confirmed that Aboriginal title is constitutionally protected and that it is a strong right within law. Aboriginal title has significant cultural, economic, spiritual, political and legal dimensions in this land. It is a right that reflects the prior occupation and possession of Aboriginal peoples in this land we now call Canada. It is a right that the Crown has a responsibility to recognize and affirm.
Kent McNiel,1998 | The Court discussed the issue of the division of powers between the Parliament of Canada and the provincial legislatures in relation to Aboriginal rights. Thisis the focus of this article. I attempt to show that the Court’s pronouncements on this issue result in a fundamental realignment of constitutional jurisdiction within the provinces where Aboriginal title can be established.
Stuart Rush, 1998 | The decision in Delgamuukw has greatly expanded the fiduciary obligations of the governments. It has established the Federal Government as the protector of aboriginal title on off-reserve land. It has imposed a duty to accommodate aboriginal title if it is to be infringed upon. It has imposed a duty to consult with respect to infringement of aboriginal title by enactments and measures taken by the governments. It has imposed a duty to negotiate treaty settlements in good faith with Aboriginal Nations
~1998 | This paper intends to explore the Douglas Treaties and the implications of the Delgamuukw decision on these. What assistance does Delgamuukw provide in determining what lands are subject to aboriginal title? What aboriginal title lands did the Douglas people give up in the treaty process? What, if any, aboriginal title land has survived the treaty process?
Kent McNeil, 1998 The arrival of Europeans in North America had a profound impact on the Aboriginal peoples who had been living here for thousands of years. Virtually everything changed: unfamiliar diseases like smallpox ravished the population; the fur trade and European settlement and resource use decimated the wildlife; new technology such as firearms altered Aboriginal economies and tribal relations; Christian evangelism affected spiritual beliefs and values; European imposition of sovereignty and governmental structures weakened, and in some cases replaced, Aboriginal forms of government; and so on. But more than anything else, the taking of Aboriginal lands by Europeans has probably had the greatest long-term impact on the Aboriginal peoples.
Louise Mandel, 1998 | The Delgamuukw Decision is a victory for aboriginal people as it requires governments to recognize and respect aboriginal title, aboriginal law, and oral histories. It should provide protection and comfort for aboriginal people to affirm and build contemporary legal systems of governance, and to repossess parts of their territories. Moreover, the Court has now affirmed some of the understandings of aboriginal title which the Chiefs and the Elders have been articulating for years. Nevertheless, the Court creates a power in the government to interfere with aboriginal title, subject to fiduciary obligations. Fiduciary obligations include a duty of good faith consultation before interference with title. Some cases may require full consent and there will always be an inescapable economic aspect of aboriginal title requiring fair compensation.
Stuart Rush, 1998 | There is a new duty to negotiate in good faith declared in Delgamuukw and that by looking to the model of labour relations case law. we can give meaning to this duty and how it might be enforced. There are new opportunities arising out of the Delgamuukw decision which can be used to advance negotiations of treaties and to control the process of those negotiations for the benefit of Aboriginal people. These opportunities can provide the foundation for compelling the Governments to deal with Aboriginal Nations in the negotiation of treaty settlements in a fairer way. The scrutiny of negotiations will move the process along and compel more meaningful negotiations.
Albert Peeling, 1998 Delgamuukw ends with the encouragement of negotiations, and one can only agree that successful negotiations are desirable. But in my view those negotiations must be guided by past and future court decisions which gave and will give them their impetus. The courts, it seems to me, must be a significant part of the negotiations, since the constitutional questions involved cannot be negotiated away.
