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dc.contributor.supervisorPenner, Roland (Faculty of Law)en
dc.contributor.authorMcGilligan, Stephen M.
dc.date.accessioned2005-05-11T14:53:38Z
dc.date.available2005-05-11T14:53:38Z
dc.date.issued2005-05-11T14:53:38Z
dc.identifier.urihttp://hdl.handle.net/1993/117
dc.description.abstractAboriginal rights are rooted in the historical relationship between the Indigenous peoples of Canada and the Crown and attempt to reconcile the prior occupation of lands by the Aboriginal peoples with claims of Crown Sovereignty. Treaty rights, on the other hand, owe their existence to a series of consensual agreements between the signatories and represent an ongoing relationship between the parties. Treaties represent an integral part of the early Indigenous-European relationship, initially offering peace and friendship and later a vehicle through which the Europeans could acquire lands from the Aboriginal peoples for settlement. In the seminal decision R. v. Sparrow, the Supreme Court of Canada for the first time attempted to address the scope and content of these constitutionally protected Aboriginal rights. The court concluded that Aboriginal rights existed at common law and that these common law rights, whatever they may be, received constitutional protection by virtue of s. 35(1) of the Constitution Act, 1982. Thus, any legislative enactment designed to infringe on these rights must meet constitutional standards for justification. Despite strict limitations on infringement, in the period following Sparrow, the Court has watered down the effects of this decision by diluting the legislative intent portion of the test to such a degree that it risks becoming a non-factor in the justification process. In this paper, I contend that the use of the Sparrow test, particularly as that test has been interpreted by the Court in the period following Sparrow is flawed, and to use this test as a tool for determining when constitutionally protected Aboriginal treaty rights might be infringed multiplies this flaw to a critical point.en
dc.format.extent1432147 bytes
dc.format.mimetypeapplication/pdf
dc.language.isoengen_US
dc.rightsinfo:eu-repo/semantics/openAccess
dc.subjectAboriginal Rightsen
dc.subjectR. v. Sparrowen
dc.titleSolemn promises: treaty rights in the shadow of Sparrowen
dc.typeinfo:eu-repo/semantics/masterThesis
dc.typemaster thesisen_US
dc.degree.disciplineLawen_US
dc.contributor.examiningcommitteeWhitecloud, Wendy (Faculty of Law) Guth, DeLloyd (Faculty of Law) McNeil, Kent (Faculty of Law, Osgoode Hall)en
dc.degree.levelMaster of Laws (LL.M.)en_US
dc.description.noteOctober 2004en


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