Lakehead Law Journal

Book Review of "The Right to Be Rural" by Karen R. Foster and Jennifer Jarman, eds.

Jane van Moorsel — 2024-06-07

Book Review of "The Future of the Professions" by Daniel and Richard Susskind

Hailey Hayes — 2024-05-27

Determining Indigenous Identity for the Purposes of Gladue Sentencing Considerations

Adam William Schenk — 2024-04-16

Indigenous identity fraud is a growing concern in Canadian society as the Indigenous heritage of several prominent Canadians has been called into question in recent years. Individuals may falsely assert Indigenous ancestry in the hope of garnering some type of benefit or advantage, including advantages in a legal context. While it is important that the legal system is on guard against Indigenous identity fraud, it also must be cognizant of the dangers inherent in creating overly onerous evidentiary burdens to establishing one’s Indigenous heritage for the satisfaction of the courts given the separation that Indigenous persons may have from their ancestry as a direct result of colonialism. This article explores the issue of Indigenous identity in the specific context of Gladue sentencing considerations, surveying the relevant jurisprudence to identify the various approaches to Indigenous identity in the context of Gladue and the outstanding issues in this challenging area of the law.

Indigenization of Civil Litigation: Barriers and Opportunities

David Rosenberg — 2024-05-22

This paper considers the Indigenization of civil litigation as a means to promote decolonization and reconciliation within the Canadian legal framework. In light of the growing proximity of Indigenous to non-Indigenous communities, the task of Indigenization has taken on a new urgency. However, there are many obstacles to the goal of Indigenization. Two barriers that are examined in this paper are the secrecy and confidentiality that surrounds civil litigation under Canadian law, and a related issue, the seemingly esoteric nature of Indigenous laws—that is, laws that are not well known or easily knowable outside of Indigenous communities. As part of that examination, this paper points to a decision of the Ontario Superior Court of Justice that gives us an early indication of how we might achieve the objective of Indigenizing civil litigation and overcome the obstacles identified. It then briefly discusses the Indigenization of civil disputes in the context of self-governance regimes, followed by a discussion of various other initiatives that promote the settlement of disputes. Settlement is promoted because it is seen as being more aligned with Indigenous legal traditions than litigation. Finally, this paper discusses a key consequence of settlement, being that settlement can cloak the manner and terms of resolution under a veil of secrecy.