Papers by Janna Promislow
Treaties in History and Law
UBC Law Review Society, 2014
Book Review of Felix Hoehn, Reconciling Sovereignties. Aboriginal Nations and Canada (Saskatoon: Native Law Centre, 2012)
Review of Constitutional Studies / Revue d’études constitutionnelles, 2012
It would only be just': a study of territoriality and trading posts along the Mackenzie River 1800–27
Deference with a Difference: Dunsmuir and Aboriginal Rights
In 2017, the Supreme Court of Canada (SCC) decided two duty to consult cases, heard together: Cly... more In 2017, the Supreme Court of Canada (SCC) decided two duty to consult cases, heard together: Clyde River (Hamlet) v. Petroleum Geo-Services Inc. 1 and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. 2 ("the 2017 cases"). Within the issue of whether the duty to consult had been satisfied, key points of contention focused on who is responsible for discharging the duty to consult Indigenous Peoples, including assessing the adequacy of the consultation. The cases presented the particular situation of a regulatory agency (the National Energy Board or NEB) that had final approval authority, without the involvement of the Crown "proper" (understood as a minister of the Crown or cabinet). In other words, can the duty be satisfied without the Crown participating in the process and assessing its adequacy? The Court's answer: "While the Crown always owes the duty to consult, regulatory processes can partially or completely fulfill this duty." 3 A second, equally contentious issue was about what is required of a regulatory agency in assessing the obligation to consult when this obligation rests with it. Embedded within this issue is the Associate Professor, Thompson Rivers University, Faculty of Law. This paper evolved and was improved through discussions at the Osgoode Constitutional Cases Conference and the National Roundtable on Administrative Law, held by the Canadian Institute for the Administration of Justice. Thanks to Sonia Lawrence for her wise editorial advice and to Scott Robertson and Ben Ralston for their insights and comments. 1
Realizing Administrative Aboriginal Law
THE DUTY TO CONSULT' is a handbook on a part of Canadian Aboriginal law that is in need of furthe... more THE DUTY TO CONSULT' is a handbook on a part of Canadian Aboriginal law that is in need of further explication. Echoing the nascent character of the doctrine in question, the Associate Professor at the University of Saskatchewan College of Law has approached this project as one that will evolve over time.' Newman is known for his strong, theoretically oriented work,' but in this compact volume he undertakes to reach a broader audience, beyond law and academe, on a topic he considers to be of "fundamental importance" for all Canadians.' In The Duty to Consult, Newman strikes a balance between highlighting key issues from the mass of context-specific material that this field has rapidly spawned and shedding light on the big picture. As such, the book is a valuable resource for both consultation practitioners and big picture thinkers alike. The layout of the book demonstrates how the constitutional duty to consult involves many actors and pushes Aboriginal relations into the daily practice of government, especially in the areas of land use and resource development.
History is an essential part of aboriginal law. The two disciplines, however, may produce incompa... more History is an essential part of aboriginal law. The two disciplines, however, may produce incompatible narratives of indigenous-settler relations. In addition, indigenous legal traditions and the fur trade in the old North West have been under-represented in Canadian legal history, a gap that demotes over two centuries of working relationships to a brief preface to the numbered treaties and confederation. This dissertation seeks to bring under-observed normative relations between indigenous and European traders into Canadian legal history. It further considers the relevance of fur trade law to the jurisprudence on aboriginal treaty rights and the significance of history in overcoming historical injustice in settler states. Using an ethnohistorical methodology, three case studies are presented on the law of the fur trade followed by a chapter connecting the interpretation of the intersocietal law of the fur trade to the interpretation of treaties in history and law. Focussing the fur...
Constitutional Forum / Forum constitutionnel, 2013
Haida Nation v British Columbia (Minister of Forests) ushered in a new era in Aboriginal law. In ... more Haida Nation v British Columbia (Minister of Forests) ushered in a new era in Aboriginal law. In contrast to the emphasis on history in section 35’s first 20 years, the Haida Nation era offered a determinedly forward-looking approach to the reconciliation purposes ascribed to Aboriginal rights by the Supreme Court. Under the Haida Nation paradigm, and the duty to consult and accomodate it imposed on the Crown in relation to pre-proof aboriginal rights claims, reconciliation is a process that “begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense.” Nine years after Haida Nation, the legal parameters and the institutional structures involved in implementing the duty to consult and this new direction remain incomplete and formative.
Deciding on the Future
The Limits and Legitimacy of Referendums
Indigenous peoples in Canada, and especially in British Columbia and the northern territories, ha... more Indigenous peoples in Canada, and especially in British Columbia and the northern territories, have been engaged in negotiating land and self-government agreements for many years. These agreements, known as modern treaties, recognize and modify the constitutional rights of Indigenous peoples in a number of ways. To complete an agreement, ratification of the agreement by Indigenous community members is required by negotiations policies. This chapter argues that negotiations policies pay insufficient attention to both the collective ratifying the agreement, and the campaigns leading up to the ratification vote. The context for this argument is set by a brief review of treaty negotiations processes and policies, with particular attention to context in British Columbia. It also canvasses First Nations governments and their role in relation to the individuals and collectives that hold constitutionally protected Indigenous rights. After setting the stage with these discussions, the chapte...
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Papers by Janna Promislow