Your search
Results 23 resources
-
Disclaimer: This summary was generated by AI based on the content of the source document.
-
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.
-
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.
-
Article 3136 C.c.Q. is a departure from the general rules of jurisdiction applicable to a Quebec authority. Based on the principle of necessity and in the absence of an appropriate forum, it authorizes an authority to exercise jurisdiction in relation to a matter not subject to its direct jurisdiction when it is impossible or unreasonable for the parties to access a foreign authority and when the litigation has a sufficient connection with Quebec. Article 3136 thus confers a discretionary jurisdiction on a Quebec authority. This discretion is limited by the definitional elements expressed in article 3136 and has been further narrowed by an inappropriate interpretation by the Court of Appeal in Lamborghini. The critical factor is that necessity jurisdiction implies that the litigation is subject to an effective remedy in the Quebec forum. Availability of an effective remedy renders reasonable the exercise of necessity jurisdiction and the requirement that foreign litigation be instituted, unreasonable. However, the factor of remedy is ignored, or without expression, in both doctrine and jurisprudence. Supported by a comparative approach between the civil law and the common law, the first part presents a general analysis of this exceptional rule with particular attention to the Swiss law which inspired the drafters of article 3136. In the second part, article 3136 is considered in context with the general provisions of the Code and the legislative history of the provision is clarified. The third part analyzes the definitional elements of the article and the last part examines its application as reflected in the relevant jurisprudence.
-
The Preliminary Provision of the Civil Code of Québec refers to the concept of jus commune. Yet to just which jus commune is it referring ? The author reviews the historic multiplicity of jura communia in Europe, including the jus commune, the common law and the general law of France. The latter has become transnational in character with the French Civil Code as an important contemporary element, but also including the general principles of law. As such, the Civil code should thus take its place within the framework of a much broader transnational legal tradition.
-
Disclaimer: This summary was generated by AI based on the content of the source document.