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Item Open Access The Allocation of Burdens in Litigation Between First Nations and the Crown(2014-11-19) Posluns, Michael Wilfred; Scott, Dayna NadineThis thesis is about two inter-related matters: first, the allocation of burdens of proof in litigation between First Nations and the Crown; and, secondly, the reaction or response of the Crown to the Court’s allocations of burdens, as evidenced in the subsequent cases. Since “burdens of proof” refers to matters of fact and evidence, I refer simply to “burdens”, emphasizing that, I mean all the burdens allocated by a Court and which the Court expects the parties to discharge in order for their case to succeed. My initial interest was in the response of the Crown to the allocation of burdens by the Court and related admonitions. In pursuing this matter it became evident that I needed to establish what allocations the Court had set out and what admonitions it had made as regards previous arguments of the Crown. There are two sets of viewpoints that I examine in this paper: The first is the jurisprudential view as to the allocation of burdens in the Aboriginal and treaty rights cases that I discuss here. The second is the more political and policy-based view of the Crown, federal or provincial, as to its burdens of proof and related burdens, such as the duty to consult and to accommodate, previously set out by the Court. This divergence between the Court’s view and the Crown’s and the recurring indications that the Crown does not intend to accept the Court’s view is my primary interest. I will, at times, refer to the Crown’s attitude, exemplified by this divergence as “recalcitrant” and its behaviour as “recidivism”. It is this divergence between the Court’s interpretations and the Crown’s actions and arguments which is my primary interest throughout this discussion. As a lens through which to examine this divergence I review two bodies of literature on theoretical constructs useful in understanding how the Government seeks to shift certain proof burdens onto First Nations parties. The first is the idea of “purposive interpretation” as it is discussed by Chief Justice Dickson and Justice La Forest in Sparrow, and by other leading jurists as well as academic writers who consider this kind of interpretation as one most appropriate for understanding constitutionally entrenched rights. The second is the idea of the “empty box” versus “full box theory” as held by advocates for First Nations and other Aboriginal communities, among others.Item Open Access The Failure of the Canadian Human Rights Regime to Provide Remedies for Indigenous Peoples: Enough Time Has Passed(2016-09-20) Hewitt, Jeffery Gordon; Sossin, Lorne MitchellIn 2008, Canada amended the Canadian Human Rights Act to remove s.67, which in essence precluded Indigenous Peoples from bringing complaints as against Canada and Band governments. Since the amendment took effect in 2010, a multi-fold increase has occurred in the number of complaints filed with the Human Rights Commission of Canada from dozens to hundreds. The first such significant complaint to be heard by the Canadian Human Rights Tribunal was filed by the First Nation Child and Family Caring Society along with the Assembly of First Nations (the Complaint). The Complaint alleges Canadas funding with respect to First Nation child welfare services on-reserves is discriminatory and a service that falls within the meaning of the CHRA. Canada has aggressively denied any discrimination and challenged the Tribunals jurisdiction. The Complaint seeks not only equality with respect to funding but also systemic remedies to address the socio-economic gap that exists between Indigenous and non-Indigenous Peoples in Canada. In addition to examining the Canadian human rights regime, this thesis explores ongoing colonialism in relation to Indigenous Peoples and how colonialism assists in maintaining the status quo. Will Indigenous Peoples with complaints before the Tribunal be able to access meaningful systemic remedies from a Tribunal, which itself derives authority from Canadas colonialist root? If so, what might such remedies look like? This thesis also posits that in addition to ordering substantive equality of funding for child welfare services, in crafting meaningful systemic remedies the Tribunal should make room for and access Indigenous laws in order to both narrow the socio-economic gap and provide access to culturally relevant child welfare services.