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Citizenship is a key factor in the development of national identity. Any system for establishing and defining citizenship is meaningless as a tool for the creation of such an identity, however, without control of the mechanisms by which this system is designed and implemented. In this paper I propose to examine the constitutional status of an Aboriginal right to control the design and implementation of citizenship codes. As the judiciary in Canada begins to grapple with questions of Aboriginal self-determination, it must begin to consider the extent to which its own vision of Canada as a constitutional democracy, currently engaged in a project of reconciling Aboriginal peoples to the sovereignty of the Crown, will set out parameters for locating and constructing such a right. Within the confines of constitutional law in Canada, do Aboriginal peoples have a right to design and implement their own citizenship codes, free from interference from Canadian governments? Alternatively, is there such a right, but subject to some measure of control by the Crown, and perhaps subject to other constitutional instruments, such as the Charter of Rights and Freedoms?
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Section 25 of the 'Canadian Charter of Rights and Freedoms' is an important, yet not fully understood, interpretive provision. This section plays an important role in Canada's constitutional framework by shielding the rights of aboriginal people from negative impacts that the 'Charter' may have on such rights. However, the exact scope and significance of the role that section 25 plays in 'Charter' interpretation is uncertain. Through a textual analysis of section 25, this paper attempts to provide guidance on the provision's possible interpretation and application. In particular, the implementation of section 25 and the maintenance of a balance between the individual and collective rights of aboriginal people will be explored Such commentary is required because the role of section 25 will inevitably become more relevant as more aboriginal self-government agreements and arrangements are concluded.
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The regulation of Native identity has been central to the colonization process in both Canada and the United States. Systems of classification and control enable settler governments to define who is “Indian,” and control access to Native land. These regulatory systems have forcibly supplanted traditional Indigenous ways of identifying the self in relation to land and community, functioning discursively to naturalize colonial worldviews. Decolonization, then, must involve deconstructing and reshaping how we understand Indigenous identity.
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The law of abstract payment undertakings fashions a rule that the undertakings are, as their name implies, independent of the transactions out of which they arise. That independence principle admits of an important exception if the beneficiary of the undertaking fraudulently seeks payment when he has no colourable right to payment. The parameters of the fraud exception to the abstraction principle are of necessity imprecise. Although courts have developed a number of limits to the exception, some courts, unaware perhaps of the danger they pose to the commercial efficacy of these undertakings, sometimes engage in wide-ranging fraud inquiry. This article contends that courts must limit the inquiry. The article illustrates the problem with analysis of three cases, one each from Australia, Canada and the United States. [PUBLICATION ABSTRACT]
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