Week Six: Karen Drake and Readings From Tsilhqot’in vs. the Crown

On May 24, 2019, Karen Drake, Associate Professor & Director, Indigenous Outreach at Osgoode Hall Law School at York University and citizen of the Métis Nation of Ontario gave a talk to conclude the session. Professor Drake outlines four ways Canada has asserted its right to sovereignty over this territory. They include conquest, prescription (based on the passage of time), cession (based on treaties), and the doctrine of discovery. She argued that from the perspective of Canadian law, the justification for Canada’s asserted sovereignty has only ever been the doctrine of discovery, but that this “lacks normative legitimacy.” In her talk she debunks the other claims to sovereignty.

Anyone wishing to read pertinent background material could consult  Tsilhqot’in vs. Crown (2014) SCC 44 which drew heavily on Delgamuukw. See especially the following paragraphs : 18, 24-25, 27-30, 32-38, 41-97, 153.

100% of the donations collected at this talk were given to the Unist’ot’en Camp Legal Fund.

Questions we had before the talk:

What does the context of asserted crown sovereignty look like?

What are Indigenous rights in the context of crown sovereignty? How do they intervene in that context? How can we support that intervention?

How is the legal system activated/used/implemented in these conflicts?

What is the potential of Indigenous law (as opposed to “Aboriginal law,” which is recognized under the Canadian legal system) to be (a) viable legal system(s) on this land?

Given that common law adapts over time, what is it that doesn’t change? What can we count on in this type of legal regime?

To what degree can Canadian law and the legal system as it stands actually belong to people who are not currently seen as equals or genuinely invited to the table? 

Borrows argues that Indigenous law and Canadian law can collaborate—can it?

To what extent can Indigenous law transform the Canadian legal system.

What does Crown sovereignty in the context of Indigenous law and Indigenous sovereignty look like?

To what extent is the law based on the assumption that Indigenous peoples are outside the law?

Is the potential transformation of Canadian law by Indigenous law becoming more or less possible as the diversity of backgrounds of people in this country increases?

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