Larry Chartrand

University of Ottawa | Université d'Ottawa, Common Law, Emeritus

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Papers and Publications by Larry Chartrand

Applying Dene Law to Genetic Resource Access and Knowledge Issues

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DRAFT Deciding Medical Treatment for a First Nation's Child: Is it Six Nations or Ontario Authority that should Govern

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Metis Constitutional Law Issues

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INDIGENOUS PEOPLES: CAUGHT IN A PERPETUAL HUMAN RIGHTS PRISON

This paper argues that liberal democratic theorists like Habermas and James can support increased... more This paper argues that liberal democratic theorists like Habermas and James can support increased political recognition and inclusion within Canadian democracy. However, such theories fall short of supporting full Indigenous emancipation or addressing the immorality of including Indigenous peoples within the polity of Canada in the first place and in fact they are destructive to Indigenous peoplehood rights because Indigenous rights are interpreted and understood as akin to individual human rights which can be unilaterally diminished by the state.

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Principles of Dene/Metis Dispute Resolution: Implications for the Sahtu Dene and Metis Land Claim Arbitration Panel

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Indigenous Peoples Legal Systems within Canadian Law Schools?

This powerpoint outlines some of the issues and challenges of incorporating Indigenous peoples le... more

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Indigenizing the Law Academy from a Decolonization Perspective

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Eagle Soaring on the Emergent Winds of Indigenous Legal Authority (2013) 18 Constitutional Law Review 49

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Daniels Case Comment (2013) Alta. Law Review 1

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Grace Woo Book Review

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Draft Paper: Natural Law and Liberal Rights: A discussion

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Failure to Protect Tutsi in Rwanada under the Genocide Convention (Draft, 2013)

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The Story in Aboriginal Law and Aboriginal Law in the Story: A Metis Professor's Journey (2010) 50 Supreme Court Law Review 89

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Revue de la recherche sur la victimisation criminelle et les membres des Premières nations, les Métis et les Inuits, 1990 à 2001

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Reconciliation and transformation in practice: Aboriginal judicial appointments to the Supreme Court

Canadian Public Administration-administration Publique Du Canada, 2008

Aboriginal Sentencing as an "Other Right" under s.25 of the Charter

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Aboriginal Justice Systems: Law 599: B5

The Metis Settlement Accord, a Modern Treaty

The Political Dimension of Aboriginal Rights

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Beads and Trinkets Take on New Form in Federal Constitutional Proposals for Aboriginal Peoples in Canada

Const. F., Jan 1, 1991

Notwithstanding the changes in form from beads and trinkets to that of written words, one thing r... more

Applying Dene Law to Genetic Resource Access and Knowledge Issues

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DRAFT Deciding Medical Treatment for a First Nation's Child: Is it Six Nations or Ontario Authority that should Govern

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Metis Constitutional Law Issues

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INDIGENOUS PEOPLES: CAUGHT IN A PERPETUAL HUMAN RIGHTS PRISON

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Principles of Dene/Metis Dispute Resolution: Implications for the Sahtu Dene and Metis Land Claim Arbitration Panel

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Indigenous Peoples Legal Systems within Canadian Law Schools?

This powerpoint outlines some of the issues and challenges of incorporating Indigenous peoples le... more

Download

Indigenizing the Law Academy from a Decolonization Perspective

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Eagle Soaring on the Emergent Winds of Indigenous Legal Authority (2013) 18 Constitutional Law Review 49

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Daniels Case Comment (2013) Alta. Law Review 1

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Grace Woo Book Review

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Draft Paper: Natural Law and Liberal Rights: A discussion

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Failure to Protect Tutsi in Rwanada under the Genocide Convention (Draft, 2013)

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The Story in Aboriginal Law and Aboriginal Law in the Story: A Metis Professor's Journey (2010) 50 Supreme Court Law Review 89

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Revue de la recherche sur la victimisation criminelle et les membres des Premières nations, les Métis et les Inuits, 1990 à 2001

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Reconciliation and transformation in practice: Aboriginal judicial appointments to the Supreme Court

Canadian Public Administration-administration Publique Du Canada, 2008

Aboriginal Sentencing as an "Other Right" under s.25 of the Charter

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Aboriginal Justice Systems: Law 599: B5

The Metis Settlement Accord, a Modern Treaty

The Political Dimension of Aboriginal Rights

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Beads and Trinkets Take on New Form in Federal Constitutional Proposals for Aboriginal Peoples in Canada

Const. F., Jan 1, 1991

Notwithstanding the changes in form from beads and trinkets to that of written words, one thing r... more

Written Presentations to Various Parliamentary Committees

Revitalizing Metis Governance and Legal Tradition

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Daniels Public Law Presentation May 2013

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Interpretation of s.91(24)

A historical and contemporary understanding of the meaning and scope of "Indians and lands reserv... more

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Indigenous Rights to the Electromagnetic Spectrum

When the Crown exercises the right to distribute the exclusive use of certain parts of the spectr... more

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Aboriginal Title Case (Tsilhqot'in)

 The entire doctrine of Aboriginal rights is based on the racist premise that Aboriginal peoples... more

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Emerging Issues in Aboriginal Law: Reconciling International law with Canadian Common Law

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A Section 35 Watchdog: Furthering Accountability of Federal, Provincial and Territorial Governments to Aboriginal Peoples

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Indigenous Rights or Charter Rights Approach to Metis Health Benefits

A Review of Research on Criminal Victimization and First Nations, Métis and Inuit Peoples 1990 to 2001

Social Science Research Network, 2006

However, when one reviews these criminal justice studies and recommendations, one sees that they ... more However, when one reviews these criminal justice studies and recommendations, one sees that they are largely "offender" focused. Significant attention is spent on addressing questions such as how we can make the criminal justice system more relevant and fair for Aboriginal offenders. Concern is focused on how to reduce the levels of over-representation of Aboriginal offenders in the correctional system. Less attention, however, has been focused on Aboriginal victims of crime. The perspective of the victim has often not been well addressed in these studies. This literature review is a step towards addressing this gap in our understanding and subsequent need for research of Aboriginal criminal victimization. 1.1 Scope This research is being completed for the Department of Justice Canada (Policy Centre for Victim Issues and the Research and Statistics Division). The "Terms of Reference for Development of a Multi-Year Research Agenda for Victims Issues among First Nations, Métis and Inuit Populations" sets out the following background for this literature review: During the 1990s, victims of crime and their advocates became more vocal in their call to enhance the role of victims of crime in the criminal justice system, and to achieve more of a balance between the rights of victims and offenders. In response, a comprehensive review of the role of victims in the criminal justice system was undertaken. The report of this review, Victims' Rights-A Voice, Not a Veto, made a number of recommendations, one of which was to establish an office of the Victims of Crime Initiative at the federal Department of Justice. This Initiative set up both the Policy Centre for Victim Issues (including policy development and consultation) and funding to support research, 1 See Appendix A for a list of the various major justice inquires conducted in Canada within the last 15 years. Please note, this review was undertaken in 2002. 2 Statistics Canada reports that in 1998/99 Aboriginal people comprise 2% of the adult population but account for 17% of the admissions to provincial/territorial custody (2001a). 3 Recommendations range from improving the existing system by implementing, for example, cross-cultural programs for justice personnel, to the full recognition of the right of Aboriginal peoples to control and develop their own separate justice systems.

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A Literature Review of Research on Criminal Victimization Among First Nations, Métis and Inuit Peoples 1990 to 2001

Social Science Research Network, 2007

This literature review discusses criminal victimization among First Nations, Metis and Inuit peop... more This literature review discusses criminal victimization among First Nations, Metis and Inuit peoples in Canada in order to identify the research needs of these populations. The review begins with a contextual and statistical overview of the victimization of Aboriginal peoples in Canada. The data shows that Aboriginal victimization is disproportionately higher than for Canadians generally. Moreover, personal violence experienced by Aboriginal women, children and individuals with disabilities is particularly striking. The perpetrators of such violence are most often spouses, relatives and friends of the victims. Studies reporting victimization rates of Aboriginal women in the area of 80-90% are commonplace.The issue of under-reporting victimization by Aboriginal people to criminal justice authorities is also discussed. Rates of under-reporting victimization are considered high in Aboriginal communities ranging from 40-75%. Several factors may contribute to this high rate of under-reporting, such as the “normalization of violence”, lack of victim services to access in order to report victimization and a lack of culturally appropriate services where they do exist. Thus, although there may be high rates of victimization as demonstrated in self-disclosure surveys, the actual reporting of such victimization may be disproportionately low. Some explanations of under-reporting in Aboriginal communities are addressed in the literature.The particularly high rates of victimization among Aboriginal women, youth and people with disabilities are examined individually. Domestic violence, the impact of childhood experiences of abuse, sexual exploitation of Aboriginal youth and youth gang involvement are documented. In particular, some of the research traces a link between childhood experiences of victimization and subsequent involvement in violence either as a perpetrator or as victim in adulthood. In terms of people with disabilities, the particular issues of Fetal Alcohol Syndrome and Alcohol- Related Neurodevelopmental Disorders (Fetal Alcohol Spectrum Disorder or FASD) and people living with HIV/AIDS are examined as they relate to victimization. The literature shows that these groups are especially vulnerable to victimization.Explanations for such high rates of victimization are varied but the predominate view links high victimization to the overall impact of colonization and the resultant collective and individual “trauma” and its impacts that flows from cultural disruption. Furthermore, the need to break the cycle of family violence that has become internalized is identified throughout the literature as a critical step in reducing criminal victimization.The benefits and shortcomings of alternative dispute resolution processes such as Aboriginal diversion and circle-sentencing programs for addressing Aboriginal victimization are identified in this review. Some comprehensive Aboriginal healing processes are examined. From a victim perspective adequate protection of abused Aboriginal women and children are integral to the program design. We also briefly examine the provision of victim services. The need for culturally relevant services, particularly in northern communities, for Aboriginal victims of crime was identified in the literature.The summary of existing research provides a basis on which to develop future research projects that are culturally appropriate for Aboriginal peoples and discusses appropriate methodological best practices. Although there are some national statistics documenting the extent of Aboriginal victimization generally, there are few studies that systematically examine the prevalence community by community or Aboriginal group by Aboriginal group. Mainstream statistics tend to be overly general.There is considerably more information on status Indian victimization than on non-status, Metis or Inuit. Moreover, there is a serious lack of information on certain groups such as youth and those with disabilities. Other needs include a further and more detailed understanding as to why there is such a high level of under-reporting of crime within Aboriginal communities. The impact of Aboriginal alternative justice processes in meeting the needs of victims and their ability to reduce the rate of victimization needs to be assessed. To date, most assessments and analysis have been undertaken from the perspective of the offender.The literature leads to a conclusion that Aboriginal peoples are being re-victimized by colonization – this time indirectly as colonization is turned inside out by Aboriginal peoples victimizing themselves and where women and children bear the brunt of such trauma. We need to get a real handle on the nature and scope of Aboriginal victimization. The existing literature tells us that there is a serious problem in Canada. The levels of Aboriginal victimization are simply unacceptable on any standard. Thus, the need for more reliable and targeted research and knowledge to advance…

Law Students, Law Schools and Their Graduates

Social Science Research Network, 2001

Admission processes have played a part in making legal education more accessible. In addition, we... more

The Métis Right to Health

Applying Dene Law to Genetic Resources Access and Knowledge Issues

Genetic Resources, Justice and Reconciliation

Metis and Aboriginal Rights: Are We Metis or Are We Indians? A Commentary on R. v. Grumbo

R v Grumbo is one of the few cases at the Court of Appeal level in Canada that deals directly wit... more R v Grumbo is one of the few cases at the Court of Appeal level in Canada that deals directly with the rights of the Metis people. In a split decision, the Court of Appeal raised a fundamental question about the source and nature of Metis Aboriginal rights that to date has not been squarely addressed by the courts. The question is: Are the Metis entitled to claim Aboriginal rights because they are “like Indians” or is their entitlement to Aboriginal rights rooted in their own unique and distinctive character? On appeal to the Saskatchewan Court of Appeal, the Crown argued that Laprise is good law and that it ought to be binding on the court. By the time Grumbo was argued before the Court of Appeal, case law from the two other prairie provinces of Manitoba and Alberta had revisited the issue of whether the Metis can benefit from the provisions of the Natural Resource Transfer Agreement (NRTA) but with mixed results. The author first summarizes the majority and minority judgments rega...

Métis Land Claim Participation in the North: Implications for Southern Canada

This article provides an account of the Metis treaty process taking place in the Northwest Territ... more This article provides an account of the Metis treaty process taking place in the Northwest Territories. There are comprehensive agreements that have been entered into or are in the process of coming to a final agreement with distinct Metis communities. This acceptance of dealing with the Metis as a distinct community is different from how the federal government deals with Metis outside of the north. The article examines the legitimacy of the policy differences and critiques the lack of a meaningful comprehensive claims process in the south from both a constitutional and legal perspective.

What Happens When Common Law Duty Conflicts with Fiduciary Duty? Informed Consent in the Context of Fertility Clinic Liability

Social Science Research Network, 2002

This paper will explore some of the factors that a court would consider in determining the standa... more This paper will explore some of the factors that a court would consider in determining the standard of care regarding disclosure of material risks of ART treatments. As we shall see, there are a number of factors that weigh heavily towards applying a very onerous standard of disclosure on Assisted Reproductive Technology (ART) doctors. At the same time, and more controversial perhaps, is my argument that there may be factors present in the ART setting that could very well justify ousting the duty of disclosure altogether. I shall argue that the development and presence of a fiduciary duty by the doctor to the patient may, in certain circumstances, oust the obligation of the doctor to disclose relevant medical risks and thereby exonerate a doctor that is alleged to have failed to comply with a disclosure duty. Admittedly, this is a novel argument and has application beyond the context of ART therapy. However, it is within the context of ART therapy that I examine the inherent conflic...

Indigenous Peoples: Caught in a Perpetual Human Rights Prison

This paper examines liberal theorists such as Habermas and James in relation to Indigenous people... more This paper examines liberal theorists such as Habermas and James in relation to Indigenous peoples inclusion within nations states like Canada. The author argues that although these theorists have much to contribute in terms of increasing Indigenous democratic inclusion and rights, they are more destructive to Indigenous peoples integrity as peoples in the end. This is because they are unable to satisfactorily account for the immoral inclusion of Indigenous peoples as citizens of a state they did not consent to belonging and moreover contribute to a sense of individual human rights characterization of Aboriginal rights that is inconsistent with a true recognition of Indigenous peoples as independent and sovereign with rights that can't be determined fairly by the existing mechanisms of the state such as its courts. Liberalism and the kind of human rights it envisions for Aboriginal peoples becomes a straight-jacket rather than emancipatory.

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Métis Aboriginal Title

This paper argues that the trace theory is problematic on a number of theoretical and practical g... more This paper argues that the trace theory is problematic on a number of theoretical and practical grounds. The preferred approach, the author argues, is for a Metis community to assert Aboriginal title based on its own existence as a separate, autonomous Aboriginal people. Such a conclusion is consistent with Powley, where the Supreme Court of Canada expressly rejected the trace theory in respect of Metis Aboriginal rights claims.Given the serious, and arguably insurmountable, problems with the trace theory, scholars and courts concerned with Metis claims of Aboriginal right have sought to alternative means for the Metis to avoid the consequences of the “European contact” cutoff date. The obvious alterative is resort to a test that would explicitly incorporate a relaxed, more flexible cutoff date specifically for Metis, not for First Nations, claims. This is exactly what the Supreme Court Canada did in Powley. In doing so, the author believes the Court created problems where none real...

Indigenizing the Legal Academy from a Decolonizing Perspective

How can law schools promote the Indigenization of the law school curriculum that is consistent wi... more How can law schools promote the Indigenization of the law school curriculum that is consistent with a decolonization theory and Indigenous sovereignty recognition? Do we risk inadvertently mirroring colonial patterns of power by our very efforts to include Indigenous normative principles in an institution of higher learning that is fundamentally Western in nature? This essay is an exploration of these difficult and related questions. In examining these questions, I am mindful that respectful inclusion of Indigenous legal traditions is potentially not only an effective demonstration of decolonizational reform in itself, but inclusion within the existing legal academy may also result in the law school becoming a liberating place for transystemic post-colonial mediation. I will begin by first making some comments about the decolonization movement of education more generally. I will then briefly describe the University of Ottawa’s Indigenous peoples law stream plan for 2016. I will then...

Part III Indigenous Peoples and the Canadian Constitution, C Indigenous Peoples and the Constitution Act, 1982, Ch.17 Métis Constitutional Law Issues

The Oxford Handbook of the Canadian Constitution, 2017

This chapter provides a review of some of the leading cases on Métis rights and jurisdiction. In ... more This chapter provides a review of some of the leading cases on Métis rights and jurisdiction. In terms of rights, the chapter reviews the Powley decision, critiques its determination of Métis identity, and contrasts this with the Métis right to self-determination and membership determination of Métis communities. This chapter also examines the recent Daniels case and the implications of finding that Métis are “Indians” for the purposes of section 91(24) of the Constitution, which is said to allocate power to legislate over Indians to the federal Parliament. The chapter questions this understanding and in particular the plenary nature of section 91(24) as a head of power and argues that it should be understood differently from all the other heads of power allocated between provincial and federal authority under sections 91 and 92 of the Constitution. This chapter also critically examines the definition of Métis adopted by the Supreme Court of Canada in Daniels as overly broad, result...

UNDRIP Implementation: More Reflections on the Braiding of International, Domestic and Indigenous Laws

This work is licensed under a Creative Commons Attribution-Non-commercial-No Derivatives License.

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Métis Identity and Citizenship

A Literature Review of Research on Criminal Victimization Among First Nations, Métis and Inuit Peoples 1990 to 2001

The Crumbling Wall of Bhadauria: If Not Today, Tomorrow

We Rise Again': Metis Traditional Governance and the Claim to Metis Self-Government

An Opportunity for Healing and Holistic Care: Exploring the Roles of Health Care Providers Working Within Northern Canadian Aboriginal Communities

Journal of holistic nursing : official journal of the American Holistic Nurses' Association, Jan 22, 2016

The purpose of this qualitative study was exploring what the roles and challenges of health care ... more The purpose of this qualitative study was exploring what the roles and challenges of health care providers working within Northern Canadian Aboriginal communities are and what resources can help support or impede their efforts in working toward addressing health inequities within these communities. The qualitative research conducted was influenced by a postcolonial epistemology. The works of theorists Fanon on colonization and racial construction, Kristeva on semiotics and abjection, and Foucault on power/knowledge, governmentality, and biopower were used in providing a theoretical framework. Critical discourse analysis of 25 semistructured interviews with health care providers was used to gain a better understanding of their roles and challenges while working within Northern Canadian Aboriginal communities. Within this research study, three significant findings emerged from the data. First, the Aboriginal person's identity was constructed in relation to the health care provider...

Eagle soaring on the emergent winds of indigenous legal authority

Review of Constitutional Studies Revue D Etudes Constitutionnelles, 2013

Shorter Article: Re-Conceptualizing Equality: A Place for Indigenous Political Identity

Defining Metis Indians: A Critical Analysis of Daniels

The Supreme Court indirectly redefines the purpose of s. 91(24) but at the same time adopts an ov... more

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Larry Chartrand

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