Alberta law review 

About: Alberta law review is an academic journal published by University of Alberta Library. The journal publishes majorly in the area(s): Supreme court & Legislation. It has an ISSN identifier of 0002-4821. It is also open access. Over the lifetime, 907 publications have been published receiving 3608 citations.

Native Children and the Child Welfare System in Canada

Abstract: This article is comprised of a speech given by Professor Davies at the World Conference of the International Society on Family Law, held in 1991 in Yugoslavia. The professor leads into her discussion by reviewing the dismal statistics that face native people in Canada. The author suggests that the government's past approach, namely that of assimilation, combined with funding squabbles between the federal and provincial governments have been largely responsible for Canada's native child welfare problems. More recently, a new attitude of cooperation has emerged between the government and native leaders. The result has been increased autonomy for native people in the area of child welfare and a greater sensitivity of the government to native concerns and cultural differences. While the author contends these changes are positive, she stresses that the autonomy of the native community must not infringe on the best interests of the child.

The Sui Generis Nature of Aboriginal Rights: Does it Make a Difference

Abstract: The authors trace the development of the use of the term sui generis to describe Aboriginal legal rights, noting that this is not in fact a recent phenomenon. They explain the doctrine as a balance between common law and Aboriginal conceptions, acting as an aid to the development of the common law in a manner which accommodates cultural differences and unique Aboriginal legal rights. The authors critically analyze recent judicial employment of the doctrine, and offer suggestions as to how it could best be employed to reconcile unique Aboriginal issues with the framework of the common law.

Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow

Abstract: The authors articulate the basic elements of two competing theories of aboriginal right. The first, a contingent rights approach, requires state action for the existence of aboriginal rights. This approach dominated early judicial pronouncements on the nature of aboriginal rights. The second, an inherent rights approach, views aboriginal rights as inherent in the nature of aboriginality. This approach came to be embraced by the judiciary in cases addressing the nature of aboriginal legal interests prior to the passage of the Constitution Act, 1982. The authors then assess the Supreme Court of Canada's decision in R. v. Sparrow in light of these two competing theories. In Sparrow, the Court addressed the meaning of s. 35(1) of the Constitution Act, 1982 and, despite other laudable aspects of the judgment, relied on a contingent theory of aboriginal right and an unquestioned acceptance of Canadian sovereignty. The authors offer two alternative approaches to s. 35(1) based on the overarching value of equality of peoples. As a result, the Court severely curtailed the possibility that s. 35(1) includes an aboriginal right to sovereignty and rendered fragile s. 35(1)'s embrace of a constitutional right to self-government.

Equality, Democracy, and Constitution: We the People in Court

Abstract: Commentators have seen the disabling provisions found in the American and Canadian constitutions as undemocratic because they restrict majority powers. Building upon the work of John Hart Ely, this paper puts forward a conception of democracy which nourishes both collective responsibility and individual judgment. The distinguishes between "statistical" and "communal'' conceptions of democracy. Traditional theories, such as Ely's, have relied on the statistical notion which of individuals in a democracy acting each on their own. In the communal conception, decisions are made by the ' 'people'' acting as a distinct and collective unit of responsibility. The author then elaborates on the communal conception by identifying two variations of it, ' 'integrated'' and ' 'monolithic' 'forms of collective action. In the latter, both the unit of responsibility and the unit of judgment are collective, while in the former the unit of judgment resides in the individual. If democracy is understood in the integrated communal sense, then many of the disabling provisions in the American and Canadian constitutions can be seen to democracy rather than contradict it.