Posts Tagged https://www.canlii.org/en/ca/scc/doc/2020/2020scc4/2020scc4.html

Indigenous rights and qualification under conflict of laws. Newfoundland and Labrador v Uashaunnuat (Canada) and Love v Commonwealth (Australia).

Fasken alerted me to, and have good review of Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of Uashat and of Mani‑Utenam) 2020 SCC 4. The Canadian Supreme Court held that Quebec has jurisdiction over aboriginal rights claims in a neighburing province. This assertion of jurisdiction hinges on the qualification of rights under section 35 of the Constitution Act, 1982 (the section which deals with aboriginal and treaty rights) as rights sui generis. A qualification as rights in rem erga omnes, as the dissenting opinion suggested, would have kept the case outside of Quebec jurisdictional reach.

The case came a week after the decision of the High Court of Australia in Love v Commonwealth[2020] HCA 3 which as Michael Douglas analyses here, is a case about personal status and whether an aboriginal may be considered an ‘alien’ for immigration purposes. Judges split as to the required approach to the issue.

Indigenous rights and conflict of laws for sure will continue to exercise one or two minds (ia in view of the UNSDGs) and these two cases seem to anchor a number of issues. Not something a short blog post can do justice to.

Geert.

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