Beyond Charter Applicability: Exploring Challenges and Opportunities for Indigenous Jurisdiction in McCarthy v. Whitefish Lake First Nation
DOI:
https://doi.org/10.29173/alr2783Abstract
The Karen McCarthy and Lorna Jackson-Littlewolfe v. Whitefish Lake First Nation #128 case develops doctrine in two related areas in Aboriginal law. One area is the nature of the relationship between Aboriginal governments and the Canadian Charter of Rights and Freedoms, including the relevance of the question of the source of self-government authority (delegated, constitutional, or inherency) to the application of the Charter. The second area of development flows from the first. It relates to the application of section 25 — specifically, what categories of rights are included in the protection of section 25 and the parameters of its “shielding” function in the context of a challenge to an internal restriction by a member of a self-governing First Nation. The development of doctrine in this area is needed. However, there are concerns about how the courts are moving to apply section 32(1) to Indigenous governments from the perspective of constitutional reconciliation. This concern corresponds to further issues regarding the application of section 25 and the question of the relationship between the Charter and Indigenous jurisdiction more generally. This comment explores these issues in the context of the case.
Downloads
Published
Issue
Section
License
For Editions following and including Volume 61 No. 1, the following applies.
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
For Editions prior to Volume 61 No. 1, the following applies.
Author(s) retain original copyright in the substantive content of the titled work, subject to the following rights that are granted indefinitely:
- Author(s) grant the Alberta Law Review permission to produce, publish, disseminate, and distribute the titled work in electronic format to online database services, including, but not limited to: LexisNexis, QuickLaw, HeinOnline, and EBSCO;
- Author(s) grant the Alberta Law Review permission to post the titled work on the Alberta Law Review website and/or related websites.
- Author(s) agree that the titled work may be used for educational or instructional purposes and/or in educational or instructional materials. The author(s) acknowledge that the titled work is subject to other such "fair dealing" provisions and applicable legislation.
- Author(s) grant a limited license to those accessing the titled work from an electronic database or an Alberta Law Review website to download the titled work onto their computer and to print a copy for their own personal, non-commercial use, subject to proper attribution.
To use the journal's content elsewhere, permission must be obtained from the author(s) and the Alberta Law Review.
