Recognized but Infringed

• Author / Creator

  Pentland, Eric L

• In Mikisew Cree First Nation v Canada, 2018 SCC 40 a majority of the Justices on the Court agreed that the duty to consult does not arise in the legislative process. Running up against the limit of consultation the Justices turned to consider whether the doctrine of justified infringement, which has included consultation as a substantive consideration from its inception and as a preliminary procedural step since Tsilhqot’in Nation v British Columbia, 2014 SCC 44, provided sufficient and effective protection to Aboriginal and Treaty rights in circumstances where the duty to consult did not arise. The Justices were split five to four signaling that there is doctrinal reform or entrenchment on the horizon.

  In this thesis I analyze the doctrine of the justified infringement of Aboriginal and Treaty rights to assess whether it is internally consistent, fit for its purported purposes, and sufficiently protects Aboriginal and Treaty rights independently of the procedural duty to consult and accommodate. In my analysis: the doctrine is not internally consistent, fails to hold up to a number of its purported purposes, and does not provide sufficient protection to Aboriginal and Treaty rights.

  The scope of the thesis is restricted to doctrinal analysis, where shortcomings are identified only doctrinal reform that might be accomplished within the judicial process is advocated. As a rule, calls for reform are implicit in the identification of legal and logical inconsistencies. As an exception, I argue for the development and extension of the Tsilhqot’in principle that Courts must take the Aboriginal perspective on whether an objective is compelling into account to include a requirement of Nation-to-Nation reciprocity. This requirement is intended to respond to the uneven balancing of the public’s interest in dispossession and the interests of Indigenous communities.

• Subjects / Keywords

  • Aboriginal rights
  • Treaty rights
  • justification
  • justified infringement

• Graduation date

  Spring 2021

• Type of Item

  Thesis

• Degree

  Master of Laws

• DOI

  https://doi.org/10.7939/r3-nn52-jd62

• License

  This thesis is made available by the University of Alberta Libraries with permission of the copyright owner solely for non-commercial purposes. This thesis, or any portion thereof, may not otherwise be copied or reproduced without the written consent of the copyright owner, except to the extent permitted by Canadian copyright law.