1. Canadian Legal Inheritances
September 15, 2009

2. First Nations law Legal fiction of “discovery” of Canada
Sunera Thobani (Exalted Subjects: Studies in the Making of Race and Nation in Canada, 2007, at 39):
Claims of sovereign legality in Canada…rest historically upon one elemental ‘truth’: Europe was lawful, Indians were not. European powers claimed sovereignty over the Americas through the power of their law, pronouncing as lawless, anarchic, and even despotic the conditions of existence in the ‘savage’ worlds that Europe was discovering.

3. Aboriginal law versus indigenous law
Some characteristics of indigenous law
Bijuridical nation or legal pluralism?
John Borrows, “Indigenous Legal Traditions in Canada” (2005) 19 J.L. & Pol’y 165 at coexistence of distinct legal systems, such that “different rules of law apply to identical situations.”

4. Some examples of Canadian recognition of indigenous law –
Connolly v. Woolrich (1867), 11 L.C.J 197 (C.S. Qué)
Casimel v. Insurance Corp. of British Columbia, [1993] B.C.J. No (C.A.)
Section 35 of the Constitution Act, 1982: “existing aboriginal and treaty rights of the aboriginal peoples of Canada”
-indigenous law continues to be relevant and important in interpreting the nature and extent of these rights.

5. Mitchell v. Canada – test for aboriginal rights and customary law surviving assertion of sovereignty.
What constitutes an Aboriginal right? R. v. Van der Peet, [1996] 2 S.C.R. 507
Delgamuuk v. British Columbia:
“groundbreaking ruling containing its [SCC’s] first definitive statement on the content of Aboriginal title in Canada” (Hurley, 2000)

6. Reception of European Law
Thobani: Colonizer’s claim of sovereignty is dependent on its ability to legitimately claim that land is under the power of its law.
Conquest/cession
Settlement
Date of reception

7. Nature of common law and civil law
Use of precedent
Not following/distinguishing
Example of distinguishing previous, apparently authoritative case law: Canada Trust Co. v. Ontario Human Rights Commission
Gloss on Re Noble and Wolf

8. Common Law and Equity
Recall rationale for equity – individualized justice in face of harsh application of common law rules
Notion of fiduciary developed under the law of equity
Guerin v. Canada – sui generis fiduciary relationship between indigenous peoples and Crown
K.L.B. v. British Columbia – cannot be extended to foster children suffering sexual abuse. Private law duty only.

9. International Law Importance of International law:
Interpreting statutes, i.e. Baker v. Canada, [1999] 2 S.C.R. 817;
Interpreting Charter rights and remedies: Prime Minister of Canada v. Khadr

10. Treaty law and customary international law
Canada as a dualist jurisdiction
Signature, ratification and implementation
Domestic law always gets the last word…

11. Statute Law Relationship to common law Ambiguities – Bhadauria
Next Class: Halpern and moving into “Constitutional Themes”