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This article draws on debates about the ‘boundary problem’ in democratic theory to consider the normative challenges raised by descent-based Aboriginal membership rules in Canada. The boundary paradox is one of the most intractable puzzles of democratic theory. If a demos is necessarily bounded, so that some people are excluded, what normative principle could justify these exclusions? Liberal theory tends to insist on the primacy of consent as the basis of political society and so fails to explain the reliance of liberal democracies on birthright membership, especially the distribution of citizenship to foreign-born descendants of citizens. Applied to expressly kinship-based polities like Aboriginal communities, liberal approaches prioritize non-discrimination, potentially denying to those communities the capacity to distribute membership by reference to characteristics listed as ‘prohibited grounds’ in human rights law, including, most problematically, race and ethnicity. The article outlines the parallels between Canadian citizenship law, the Indian Act regime, and First Nations’ membership codes, and examines the distinctive role to be played by section 35 of Canada’s Constitution Act 1982 in tempering non-discrimination logics. It concludes that existing justificatory tests (the ‘valid legislative object’ test, and the section 1 ‘reasonable limits’ test) are unlikely to provide a way forward, but that a promising methodology can be discerned in Canadian law and policy, in which the ‘reasonableness’ of Aboriginal descent–based exclusions is assessed relative to the characteristics of a free and democratic Aboriginal community. I suggest that this adaptation of liberal non-discrimination norms is an expression of the continuing importance of kinship and descent boundaries in settler-state constitutionalism. Although many questions remain to be resolved, Canadian human rights laws and methodologies could assist in the primary challenge posed to settler-state political theory: the reconciliation of tribal and liberal forms of political organization.

Aboriginal law disputes are disputes that arise in the spaces between Indigenous and non-Indigenous societies. To date, the Supreme Court of Canada has resolved Aboriginal law disputes under section 35 by relying heavily on the common law to the exclusion of Indigenous legal traditions and principles. In this article, the author argues that applying a bijural interpretation of the principle of respect provides a promising pathway forward in resolving Aboriginal law disputes in a way that supports the grand purpose of section 35 of the Constitution Act, 1982—reconciliation. The author discusses the principle of respect by considering both non-Indigenous and Indigenous theories to propose a robust conception of respect to guide Aboriginal law jurisprudence. She then suggests three ways to implement the principle of respect in the intercultural relationship: (1) making interdependence and relationships primary; (2) rejecting colonial attitudes and stereotypes of Indigenous peoples; and (3) creating political and legal space for the expression and flourishing of cultural difference.

This article presents a study of the main characteristics (actors, values, principles, and rules) of the Quebec and Innu legal traditions with respect to their relationship to territory. This primarily descriptive study is followed by an analysis of the interactions that govern the two legal traditions. The article highlights the process of invalidation of the rules of Indigenous law effectuated by Quebec’s law of public and private property, and land resources more generally.

Disclaimer: This summary was generated by AI based on the content of the source document.

Disclaimer: This summary was generated by AI based on the content of the source document.

Disclaimer: This summary was generated by AI based on the content of the source document.

Disclaimer: This summary was generated by AI based on the content of the source document.

Disclaimer: This summary was generated by AI based on the content of the source document.

Disclaimer: This summary was generated by AI based on the content of the source document.

Disclaimer: This summary was generated by AI based on the content of the source document.

Disclaimer: This summary was generated by AI based on the content of the source document.

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]

TERMINOLOGY AND LEGAL FRAMEWORK Three categories of international rules may govern letters of credit: * The Uniform Customs and Practice for Documentary Credit, 2007 Revision, ICC Publication 600 (UCP), which were prepared by the International Chamber of Commerce; * The International Standby Practices ISP98, 1998, ICC Publication 590 (ISP98), which were prepared by experts in the United States and subsequently endorsed by the International Chamber of Commerce; * The Uniform Rules for Demand Guarantees, 2010 Revision, ICC Publication 758 (URDG), which were prepared by the International Chamber of Commerce. By contrast, a standby letter of credit is generally an undertaking to pay the purpose (but not the legal nature) of which is similar to a guarantee:2 for example, the issuing bank will undertake to make a payment to the beneficiary upon presentation of a demand by the beneficiary stating that the applicant is in default to perform its obligations under a certain contract. [...]letters of credit are frequently used in purely domestic transactions. The leading Canadian case in the area of letters of credit is the Supreme Court of Canada decision in Bank of Nova Scotia v. Angelica-Whitewear Ltd. and Angelica Corporation3 (AngelicaWhitewear).

The notion of confidence, which is the basis of any commercial relationship, is of particular importance in matters of international commercial contracts. This need for security has given rise to two financial instruments of which one is more adapted to the interests of the buyer (contractual guarantee), and the other, to those of the vendor (documentary credit). In spite of these diverging purposes, both have as a common element the aim of strengthening the contractual relationship. It is the requirement of good faith as well as the individual interests of the parties which has lead to the creation of certain juridical instruments capable of ensuring fulfilment of the buyer's or seller's obligations, and which exist independently of the contract of sale itself. However, the fitularies of these rights cannot exercise them in an abusive fashion. In cases of fraud, the separate obligation assumed by a third party, such as a bank or an insurance company, ceases to exist autonomously. Any prestation normally owed may no longer be claimed if the court, rather than the bank (except in certain circumstances), so decides.