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Law and Indigenous Religion: Theorizing a Complex Relationship
Get PDFThis thesis asks what preconditions are necessary to think the relation between law and Indigenous religion without marginalizing perspectives, such as those germane to Indigenous religion, that fall outside law’s frame (often figured, erroneously, as ‘objective’ and ‘neutral’). The research grounds itself in the only Supreme Court of Canada case that, to date, has involved Indigenous religious freedoms and s. 2(a) of the Canadian Charter of Rights and Freedoms (Ktunaxa Nation v British Columbia 2017 SCC) and in the very few lower court decisions that have followed in its not-unproblematic wake. Inspired by several currents of both Indigenous thought and non-Indigenous critical-theoretical work, I advance an approach that imagines law and the stories it tells as deeply entangled, inevitably, with land. Applying this framework to the context of Canadian constitutional law’s encounters with Indigenous religion, I argue that for law to understand what is at stake in Indigenous religious freedoms claims, it must transcend its habit of seeing the world in ways that perpetuate a division between objects and beliefs. Law might thereby open to the perspective, prevalent across Indigenous worldviews, that selves and world are not as separable as Canadian constitutional law’s current religious freedoms framework suggests
Transcending the Impasse: Towards an Indigenous Vision of Legality in Palestine
Get PDFThis thesis attempts to demonstrate that the international legal impasse surrounding Palestine is animated by incommensurable visions of legality. It argues that in portraying the Palestinian struggle for liberation as a struggle for state sovereignty, international law subjects the indigenous worldview to a violent and perpetual erasure. The thesis employs Aaron Mills\u27 theoretical framework to argue for an incommensurability between Palestine\u27s indigenous conception of legality and the dominant conception of legality underlying international law. Further, the thesis offers a reading of Ghassan Kanafani\u27s novel The Other Thing to explore the consequences and normative implications of an impasse characterized by incommensurability. The key finding is that cultural artefacts are important sites of the Palestinian legal memory and are capable of uncovering Palestine\u27s silenced vision of legality. Finally, the paper concludes that acknowledging incommensurability paves a way towards a more holistic legal imagination that contains the seeds of transcending the impasse in indigenous Palestine
A Critique of the Private Law Approach to Tax Interpretation in Brazilian Scholarship
Get PDFIn this paper, I point out that since the late 1960s, Brazilian tax law scholarship has increasingly rejected any attempt to integrate economic perspectives in the interpretation of tax legislation. The prevailing theory suggests that tax jurisdictions established in the Brazilian Constitution should be interpreted based on concepts from private law and should disregard any consideration of the economic context referred to by the constitutional legislator. Building on Luhmann’s systems theory, which suggests that operational closure of the legal system requires cognitive openness to other social subsystems, I argue that the predominant Brazilian tax theory (which I call private law approach) gives rise to two central problems. First, it reinforces an unseemly propensity toward literal interpretation. Second, by repudiating the economic context envisaged by the constitutional legislator, Brazilian tax scholarship fails to fulfill its primary role of describing the law and thereby stabilizing normative expectations
Reconciling Relationships with the Land through Land Acknowledgements
Get PDFOne of the limitations of conventional Canadian conceptions of reconciliation is the underlying assumption that reconciliation applies, virtually exclusively, to relationships among peoples. There are, however, other dimensions to reconciliation that are equally important from an Indigenous point of view. As Mi’kmaq Elder Augustine suggests, “other dimensions of human experience—our relationships with the earth and all living beings—are also relevant in working towards reconciliation” (TRC 2015a, 122). Indigenous conceptions of reconciliation extend beyond people to the natural world and are informed by direct relationships to the Land. In this chapter. an Anishinaabe scholar, living in her own Lands, and a settler planner, moving across the Land, further explain how Land, Spirit and, more fundamentally, relationships have endured through time and can offer profound insights if one can learn to relate to the People and Land. This relation is explored through an examination of the Land Acknowledgement
Bargaining Sectoral Standards: Towards Canadian Fair Pay Agreement Legislation
Get PDFThis paper considers the recently introduced New Zealand Fair Pay Agreement (FPA) sectoral bargaining framework and offers a preliminary series of ideas and proposals setting out how an FPA model for bargaining sectoral standards could work in Canada. It is intended as the beginning of a more detailed discussion on the development of an FPA regime culminating in model legislation that could be adapted to different Canadian jurisdictions. Guided by principles of accountability, integration, and inclusivity, this proposal is intended to apply to all workers in an employment relationship – including dependent contractors and gig and platform workers. The proposed system is to be structured as a new, stand-alone statute, drawing upon existing institutions administering collective bargaining legislation, incorporating some familiar collective bargaining concepts: good faith bargaining, dues check-off, and unfair labour practice protection. It is intended to preserve existing collective bargaining arrangements by excluding specified sectors with existing high union density or existing sectoral bargaining. However, it is also intended to offer a new, sectoral bargaining option based on industry or occupation sectors, producing FPA “sector agreements” containing minimum standards applying to all employees and employers in the sector. This proposed framework would operate in parallel and in conjunction with the existing enterprise-level collective bargaining system
The Comic and the Absurd: On Colonial Law in Revolutionary Palestine
Get PDFAs part of the Special Issue, this article adopts a methodological orientation that works through and with international law’s cultural legal archive. It focuses on one colonial literary artifact that shows the historical tension between colonization and revolution and examines the traces of those constitutive relations in the present. The artifact in question is an intriguing literary excursion by a British colonial-era judge in Palestine entitled Palestine Parodies. It mocks the legal life of Mandate Palestine through the use of comics, puns, and riddles. This raises a number of provocative themes relating to Mandate law, revolution, humor, and humiliation. The article reads this artifact against the history of the Arab revolt in Palestine, which lasted for three years (1936–1939) and was violently crushed by the British forces. It engages in a detailed exegesis of a number of images drawn from this document, arguing that closely parsing these “humorous” illustrations and drawings from a different era assembles and curates two competing stories. One story is about how colonial legal structures, manifested in the form of the comedic, collided with a second story that narrates the history of struggle, refusal, and revolt. Through curating competing images, jokes, and stories, this visual and literary tension in the analysis gazes upon history to recall and rekindle revolutionary possibilities
Procedural Injustice: Indigenous Claims, Limitation Periods, and Laches
Get PDFWhen Indigenous peoples go to court to seek justice for the historical wrongs they have endured, the Crown often tries to prevent their claims from even being heard by pleading statutes of limitations and laches. The application of these barriers raises serious constitution issues that have been taken account of by the Supreme Court only in the context of declarations of constitutional invalidity. Arguments based on the constitutional division of powers and section 35(1) of the Constitution Act, 1982 have not been addressed by the Court. As a result, limitations statutes that vary from province to province have been applied ad hoc by lower courts, with inconsistent and unjust results. In addition to constitutional concerns, there are also convincing policy reasons why limitations statutes and laches should not be available to deny Indigenous claims in most cases. Access to justice has too often been denied to Indigenous peoples in the past through barriers such as sovereign immunity and federal legislation preventing First Nations from hiring lawyers to pursue their claims. Reconciliation is not promoted by time limits on legal action that perpetuate injustice by continuing to deny Indigenous people access to the courts
Competition and Labour Law in Canada: The Contestable Margins of Legal Toleration
Get PDFIn Canada, as elsewhere, the norms of capitalist legality include an aversion to permitting collective action by sellers of commodities to increase their price. Labour law, however, is built on the norm of freedom of association and the right of commodified workers to combine for the purpose of improving the terms of their labour contracts. This gives rise to a recurring regulatory dilemma. In Canada, this conflict has been resolved by granting workers a legal immunity from liability under competition law for engaging in approved collective action to improve or defend their terms and conditions of work. However, the zone of toleration is contestable at three margins, explored in this chapter. First, is the margin between those workers who are covered by the exemption and those who are not; second between the sale of labour power and the sale of the commodities it produces; and the third is between the means that covered workers can lawfully use to make their combinations effective and those that take them out of the zone of toleration. The chapter explores the history of the construction of the zone of toleration and the conflicts over its margins, which are currently stable
Reference Re Genetic Non-Discrimination Act: How to Make Space for Some Certainty
Get PDFIn the Reference re Genetic Non-Discrimination Act (Reference) the Supreme Court of Canada divided three ways, reproducing the divisions from the Reference re Assisted Human Reproduction Act (AHRA), decided a decade earlier. AHRA did not provide a majority statement of the rule for determining what constitutes a valid exercise of the section 91(27) criminal law power. Neither did the Reference. As a consequence, uncertainty in this area of the law persists. This article suggests arguments that, if adopted, would resolve this uncertainty. Part I summarizes the Reference, including the three sets of reasons written by Karakatsanis J., Moldaver J. and Kasirer J., respectively. Part II is organized around three spatial metaphors: the relationship of parts to the whole, breadth, and line-drawing. Part II begins by addressing an apparent disagreement in the federalism jurisprudence and in the Reference about the proper order for pith and substance analyses, when a part of an act is at issue. I argue that in some cases it is necessary to interpret an act as a whole before assessing its parts. Part II then turns to disagreements in the Court about the breadth of the criminal law power. I argue that Karakatsanis J.’s expansive interpretation places in jeopardy federalism principles and that Kasirer J.’s criticisms of that interpretation were justified. Part II concludes by examining a disagreement between Kasirer and Karakatsanis JJ. about whether the test for validity under the criminal law power should include a line-drawing exercise. I argue that this relatively narrow disagreement reveals a deeper debate about the appropriate role of courts in adjudicating disputes about the criminal law power. I conclude that Kasirer J.’s position flows from an understanding of the judicial role that is consistent with the broader federalism jurisprudence