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Brian Slattery, B.A., BCL, D.Phil., F.R.S.C., is a Professor Emeritus of Law at Osgoode Hall Law School, York University, in Toronto, Ontario, Canada. He is a prominent academic in Canadian Constitutional Law and Aboriginal rights discourse. He practices Aboriginal law at Slattery & Slattery.
Slattery holds a Doctorate of Law from Oxford University, a Bachelor of Civil Law (1968) from McGill University, and a Bachelor of Arts (Honours English) from Loyola College of Montreal.
Slattery joined Osgoode Hall Law School in 1981. He has previously held academic positions at McGill University, the University of Dar es Salaam (Tanzania) and the University of Saskatchewan, where he was Research Director of the Native Law Centre. Professor Slattery has been Senior Advisor to the Royal Commission on Aboriginal Peoples and was elected to the Royal Society of Canada in 1995 for his work on advancing aboriginal rights. Slattery was inducted as distinguished research professor at York University in 2009.
Professor Slattery has been cited by the Supreme Court of Canada in more than a dozen decisions, including most of the important cases dealing with aboriginal rights. His central thesis is that native Canadians (unlike those in many other countries) were never conquered and have inherent sovereignty from being the first occupiers of the land. The Government of Canada has never acquired a legal or moral right to impose its sovereignty over them. The honourable approach requires the government to recognize the inherent rights of the natives, and to negotiate, consult, and establish treaties where they do not yet exist, rather than force aboriginals to go to court to assert their rights.
The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all areas and levels of the government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17, 1982, along with the rest of the Constitution Act, 1982.
The Canada Act 1982 is an act of the Parliament of the United Kingdom and one of the enactments which make up the Constitution of Canada. It was enacted at the request of the Senate and House of Commons of Canada to patriate Canada's Constitution, ending the power of the British Parliament to amend the Constitution. The act also formally ended the "request and consent" provisions of the Statute of Westminster 1931 in relation to Canada, whereby the British parliament had a general power to pass laws extending to Canada at its own request.
The legal system of Canada is pluralist: its foundations lie in the English common law system, the French civil law system, and Indigenous law systems developed by the various Indigenous Nations.
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.
Patriation is the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. The process was necessary because, under the Statute of Westminster 1931, with Canada's agreement at the time, the British Parliament retained the power to amend Canada's British North America Acts and to enact, more generally, for Canada at the request, and with the consent, of the Dominion. That authority was removed from the UK by the enactment of the Canada Act, 1982, on March 29, 1982, by the Parliament of the United Kingdom, as requested by the Parliament of Canada.
Section 35 of the Constitution Act, 1982 provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. The section, while within the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms. The section does not define the term "aboriginal rights" or provide a closed list; some examples of the rights that section 35 has been found to protect are fishing, logging, hunting, the right to land and the right to enforcement of treaties. There remains a debate over whether the right to indigenous self-government is included within section 35. As of 2006 the Supreme Court of Canada has made no ruling on the matter. However, since 1995 the Government of Canada has had a policy recognizing the inherent right of self-government under section 35.
Delgamuukw v British Columbia, [1997] 3 SCR 1010, also known as Delgamuukw v The Queen, Delgamuukw-Gisday’wa, or simply Delgamuukw, is a ruling by the Supreme Court of Canada that contains its first comprehensive account of Aboriginal title in Canada. The Gitxsan and Wet’suwet’en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometers in northwest British Columbia. The plaintiffs lost the case at trial, but the Supreme Court of Canada allowed the appeal in part and ordered a new trial because of deficiencies relating to the pleadings and treatment of evidence. In this decision, the Court went on to describe the "nature and scope" of the protection given to Aboriginal title under section 35 of the Constitution Act, 1982, defined how a claimant can prove Aboriginal title, and clarified how the justification test from R v Sparrow applies when Aboriginal title is infringed. The decision is also important for its treatment of oral testimony as evidence of historic occupation.
Section 25 of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the Charter. While section 25 is also the Charter section that deals most directly with Aboriginal peoples in Canada, it does not create or constitutionalize rights for them.
Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.
Section 22 of the Canadian Charter of Rights and Freedoms is one of several sections of the Charter relating to the official languages of Canada. The official languages, under section 16, are English and French. Section 22 is specifically concerned with political rights relating to languages besides English and French.
R v Marshall; R v Bernard 2005 SCC 43 is a leading Aboriginal rights decision of the Supreme Court of Canada where the Court narrowed the test from R. v. Marshall for determining the extent of constitutional protection upon Aboriginal practices. The Court held that there was no right to commercial logging granted in the "Peace and Friendship treaties of 1760", the same set of treaties where the right to commercial fishing was granted in the R. v. Marshall decision. This decision also applied and developed the test for aboriginal title from Delgamuukw v British Columbia.
The discovery doctrine, or doctrine of discovery, is a disputed interpretation of international law during the Age of Discovery, introduced into United States municipal law by the US Supreme Court Justice John Marshall in Johnson v. M'Intosh (1823). In Marshall's formulation of the doctrine, discovery of territory previously unknown to Europeans gave the discovering nation title to that territory against all other European nations, and this title could be perfected by possession. A number of legal scholars have criticized Marshall's interpretation of the relevant international law. In recent decades, advocates for Indigenous rights have campaigned against the doctrine.
Canadian Aboriginal law is the body of law of Canada that concerns a variety of issues related to Indigenous peoples in Canada. Canadian Aboriginal Law is different from Canadian Indigenous law: In Canada, Indigenous Law refers to the legal traditions, customs, and practices of Indigenous peoples and groups. Aboriginal peoples as a collective noun is a specific term of art used in legal documents, including the Constitution Act, 1982, and includes First Nations, Inuit and Métis people. Canadian Aboriginal law provides certain constitutionally recognized rights to land and traditional practices. Canadian Aboriginal Law enforces and interprets certain treaties between the Crown and Indigenous people, and manages much of their interaction. A major area of Aboriginal law involves the duty to consult and accommodate.
Harry Smith LaForme is a Canadian judge.
Alan N. Young is Professor Emeritus of law at Osgoode Hall Law School in Toronto, Ontario, Canada. Young retired July 2018. Prior to starting his teaching career at Osgoode in 1986, Young clerked for Chief Justice Bora Laskin of the Supreme Court of Canada and worked as a criminal lawyer in Toronto.
Joseph James Arvay, was a Canadian lawyer who argued numerous landmark cases involving civil liberties and constitutional rights.
Bruce Allan Clark is a Canadian native rights lawyer, writer and activist. He rose to attention as part of the Gustafsen Lake Standoff and its aftermath.
Marilou McPhedran is a Canadian lawyer and human rights advocate. In October 2016, McPhedran was named to the Senate of Canada by Prime Minister Justin Trudeau to sit as an independent.
Mary Anne Eberts is a Canadian constitutional lawyer and a former University of Toronto Faculty of Law faculty member. She is a founding member of the Women's Legal Education and Action Fund (LEAF)
In Canada, aboriginal title is considered a sui generis interest in land. Aboriginal title has been described this way in order to distinguish it from other proprietary interests, but also due to the fact its characteristics cannot be explained by reference either to only the common law rules of real property, or to only the rules of property found in Indigenous legal systems. The Supreme Court of Canada has characterised the idea that aboriginal title is sui generis as the unifying principle underlying the various dimensions of that title. Aboriginal title is properly construed as neither a real right nor a personal right, despite the fact that it appears to share characteristics of both real and personal rights. Aboriginal title refers to the concept of a sui generis right in land that originates from the exclusive occupation and use of a specific territory by an aboriginal group over which the group has a native historic attachment.
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