Here is that article, intended to be an additional supplement to the FBA Indian Law Section Newsletter for Fall 2010.
US Reviewing Its Policy on UNDeclaration on the Rights of Indigenous Peoples
international law
Robertson v. Canada – Tax Court of Canada Allows Aboriginal Appeal
Interesting case (as far as tax cases can be) out of the Tax Court of Canada – Robertson v. Canada, [2010] T.C.J. No. 432. Two Aboriginal appellants from Norway House First Nation were allowed to maintain their tax exemption in light of the “commercial mainstream” test when they sold their catch through their Aboriginal co-op to a non-Aboriginal, commercial entity (Freshwater Fish Marketing Corp.).
“It has been established on the evidence, that taxing the Appellants would be an erosion of an important economic base that goes far beyond the emergence of an income source brought to the reserve by the outside world of commerce. It is a source that was always there and its present connections are not trappings. The connections to the reserve are genuine and historically based. As such, the subject income warrants protection from diminution by taxation.”
R. v. Morris – B.C. Provincial Court Rejects Treaty and Aboriginal Rights Claims as well as Kinship Reciprocity and Sheltering Defenses
Here’s the decision, which provides a useful breakdown of interpreting aboriginal and treaty rights, kinship reciprocity and sheltering defenses.
It’s been a long time coming, with the events in question having occurred during the Winter of 2001/2002 and after the death of one of the defendants.
Canada endorses the UN Declaration on the Rights of Indigenous Peoples. And itself.
Wow. Big news out of Canada. Or is it? On November 12th, the Government of Canada formally endorsed the United Nations Declaration on the Rights of Indigenous Peoples. Here’s the official declaration, as given by Canada’s Ambassador to the United Nations, John McNee, to the President of the UN General Assembly, Joseph Deiss.
Call me a skeptic, call me a cynic, but something just doesn’t feel right with Prime Minister Harper’s perfect 180 degree half-pirouette on this issue.
Canada endorses UN Declaration on the Rights of Indigenous Peoples
Supreme Court of Canada: An Indian child welfare agency providing services solely to Indian children does not fall within the protected “core of Indianness.”
Late last week, the Supreme Court of Canada released its decision concerning the intersection of Indian child welfare and labor law. Here’s the decision. NIL TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, [2010] S.C.J. No. 45.
ACLU Shadow Report to U.S. Human Rights Report to United Nations
Supreme Court (Canada) – Determining the Adequacy of “Duty to Consult” Doctrine is Within the Purview of Provincial Administrative Tribunals
Last week (Oct. 28), the Supreme Court of Canada, in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, fine-tuned the “duty to consult” doctrine. That doctrine mandates that governments making decisions which may have an impact on Aboriginal or treaty rights have a duty to consult the potentially affected First Nations – even before final proof of the rights in court or ultimate settlement on the rights in negotiation processes. Here’s a good (2009) summary of the doctrine. Duty to Consult
Indian Affairs (Canada) plans on implementing s. 74 of the Indian Act and deposing the customary government of the Algonquins of Barriere Lake
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Prostitution Made Legal in Canada – Aboriginal Women’s Groups Clash
A divisive debate is currently underway among women’s advocate groups after an Ontario court recently struck down some of the laws restricting prostitution in Canada. Even Aboriginal women’s groups are clashing on the matter.
On Sept. 28, in Bedford v. Canada, Justice Himel of the Ontario Superior Court declared three sections of the Canadian Criminal Code pertaining to prostitution as unconstitutional. Here’s the (146 page!) decision. Bedford v. Canada (Attorney General)
Technically, prostitution was never illegal in Canada, in and of itself. Rather, the three sections of the Criminal Code which were struck down, indirectly made it so. They were:
(1) communication for the purposes of prostitution – Section 213(1)(c)
(2) living off of the sex trade – Section 212(1)(j)
(3) the keeping of a “common bawdy house.” – Section 201
In a joint statement by the Aboriginal Women’s Action Network (AWAN) together with Asian Women Coalition Ending Prostitution and South Asian Women Against Male Violence, the authors claimed that the Ontario Court “abandons Aboriginal women and women of colour to pimps.”
Turtle Talk 
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