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Modern negotiations between the Crown (or private parties) and Canada’s Aboriginal peoples are largely based on the legal principles articulated in major court decisions. Yet those decisions have not yet confronted a fundamental question: how, in the first instance, do we determine which groups can lay claim to the Aboriginal and treaty rights “recognized and affirmed” by section 35 of the Constitution Act, 1982?
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In the following paper, the author analyzes the central issues raised by the recognition of aboriginal title under State law. He offers answers to the many unresolved issues concerning the sources of aboriginal title, its conditions of existence and attributes. Concerning the sources of aboriginal title, the author highlights the Supreme Court’s stato-centric approach to the defnition of aboriginal rights and argues, in particular, that the doctrine of continuity of pre-colonial law has more of a metaphoric rather than operational meaning. As for the conditions of the title’s existence, the author concludes that they still remain sufficiently undetermined as to generate legal insecurity and allow judges to conduct, under the guise of an assessment of the historical record, contemporary socio-economic arbitrations between indigenous peoples and the non-indigenous majority. Finally, the analysis of the attributes of aboriginal title brings to light the uncertainty which persists with regard to several fundamental issues, such as, for example, the identity of the holder of title. This uncertainty of the law, as well as the failure of the Supreme Court of Canada to reconcile aboriginal title with modernity, cast doubt on the capacity of indigenous peoples to develop their lands according to their contemporary priorities.
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Weinrib, J. (2014). The Modern Constitutional State: A Defence. Queen’s Law Journal, 40(1), 165–212.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Recent DNA exonerations have shed light on the problem that people sometimes confess to crimes they did not commit. Drawing on police practices, laws concerning the admissibility of confession evidence, core principles of psychology, and forensic studies involving multiple methodologies, this White Paper summarizes what is known about police-induced confessions. In this review, we identify suspect characteristics (e.g., adolescence; intellectual disability; mental illness; and certain personality traits), interrogation tactics (e.g., excessive interrogation time; presentations of false evidence; and minimization), and the phenomenology of innocence (e.g., the tendency to waive Miranda rights) that influence confessions as well as their effects on judges and juries. This article concludes with a strong recommendation for the mandatory electronic recording of interrogations and considers other possibilities for the reform of interrogation practices and the protection of vulnerable suspect populations.
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