Publications for F. Matthew Kirchner

The Van der Peet“integral to a distinctive culture” test initially risked missing the mark in seeking to achieve important objectives.

This paper examines some recent developments in aboriginal title. While the body of case law concerning aboriginal law is rapidly growing, there remains only a very small handful of cases that provide specific guidance on aboriginal rights and aboriginal title. Consequently, the case focused on here--R. v. Marshall; R. v. Bernard is not particularly recent.

On November 3, 2009, the B.C. Supreme Court released its judgment in Ahousaht Nation  v. Canada.  Madam Justice Garson (now J.A.) concluded that all five Nuu-chah-nulth plaintiffs have aboriginal rights to fish in their traditional territories and sell that fish into the commercial marketplace.

Aboriginal rights litigation is notoriously complex. It involves proof of facts dating back hundreds of years.

In British Columbia v Okanagan Indian Band, LeBel J stated that negotiation “remains the ultimate route to achieving reconciliation between aboriginal societies and the Crown.” Yet while negotiation is critical to achieving reconciliation, it need not and should not be the exclusive domain of reconciliation.