Aboriginal Law & Policy

Current Research & Dissemination

Many of our faculty members actively engage in research in the area of Aboriginal law and policy.  The research in this area undertaken at Robson Hall is varied and often includes engagement with Aboriginal communities and other faculties on campus.  These research projects have provided many opportunities for students including paid summer work as Research Assistants.  As well, faculty members researching in this area may be available for LL.M. supervision.

Implementing Gladue in Manitoba

Gladue Symposium: http://law.robsonhall.com/implementing gladue

A free symposium was presented by the Social Justice and Human Rights Research Project and the Centre for Human Rights Research Initiative on March 17, 2011 at Robson Hall on “Implementing Gladue: Law & Policy 20 Years After the Aboriginal Justice Inquiry.”

This year marks the 20th anniversary of the release of the Report of the Aboriginal Justice Inquiry of Manitoba, which found that “The justice system has failed Manitoba’s Aboriginal people on a massive scale. It has been insensitive and inaccessible, and has arrested and imprisoned Aboriginal people in grossly disproportionate numbers.” The 1998 decision of the Supreme Court of Canada in Gladue set out a framework for the sentencing of Aboriginal people meant to address what Parliament and the court recognized as a crisis of overrepresentation.

Some of the questions examined in the symposium include:

  • What principles are articulated in Gladue?
  • What have the courts in Manitoba and throughout Canada been saying about Gladue and its implementation?
  • What does Gladue require of lawyers, judges, and other justice system participants?
  • What is the difference between a pre-sentence report and a “Gladue report”
  • What are some innovations and methods of implementing Gladue that have been undertaken in other jurisdictions?

Brochure

Watch the video here

Gladue Handbook

Brenda Gunn, David Milward, Debra Parkes and Wendy Whitecloud along with two J.D. student Research Assistants (Janine Bird and Steven Keesic) are working collaboratively to create a “Gladue Handbook: A resource for use by justice system participants in Manitoba.”  The idea for this handbook came from faculty and students at the Faculty of Law, University of Manitoba, as well as members of the bench, bar, and Aboriginal communities in Manitoba, following a symposium, “Implementing Gladue: Law and Policy 20 Years after the Aboriginal Justice Inquiry” held at the Faculty of Law, University of Manitoba in March 2011. Twenty years after the AJI, the over-representation of Aboriginal people in Manitoba prisons and jails has got worse, rather than better.  Yet for a variety of reasons, Gladue has not had the impact one might have hoped for in Manitoba.  This handbook is intended as a tool for lawyers, judges and other justice system participants to facilitate awareness about, and practical tools for the implementation of, s. 718.2(e) of the Criminal Code regarding the sentencing of Aboriginal people in Manitoba.

The handbook will provide a guide to the decision of the Supreme Court of Canada in Gladue and its subsequent application and development in courts across Canada.  The handbook will have a particular focus on “frequently asked questions” about the scope and application of s. 718.2(e), as well as summaries of key cases, useful precedents, and relevant literature on Gladue and subsequent developments in the law.  At a broader level, it is hoped that this project will, together with other initiatives, encourage more systemic changes and the infusion of resources into needed programs that can truly make a difference, both in the lives of individuals (and their families and communities) coming before courts but also in reducing the level of Aboriginal over-representation.

Implementing the UN Declaration on the Rights of Indigenous Peoples

Community Legal Education: Implementing the UN Declaration on the Rights of Indigenous Peoples

Through Professor Brenda Gunn, Robson Hall has joined together with the Indigenous Bar Association on a project entitled “Implementing the UN Declaration on the Rights of Indigenous Peoples in Canada.”  This project is funded by the Law for the Future Fund of the Canadian Bar Association.  This community-university research partnership will foster engagement in and between the legal community, Aboriginal communities, academics, and Canadian governments about the potential for the UN Declaration to bring about social and legal change in Canada.

The main objective of the project is to raise awareness among Aboriginal communities, and broader Canadian society, of the standards set out in the UN Declaration and how to apply these standards in Canada.  To achieve this objective, we are producing a 36 page handbook on implementing the UN Declaration.  This handbook will be printed and distributed to Aboriginal communities, lawyers, judges, human rights organizations and educators.  It will also be available online.  The project provides funding for workshops in Ottawa, Manitoba, Vancouver and eastern Canada.  These workshops will run for about 3.5 hours and will provide participants with information on:

– the basics of international (what it is & how it applies in Canada),

– the history of the UN Declaration, what UN Declaration contains & what this means for Aboriginal people in Canada,

– how to implement the UN Declaration in Canada and

– how to push the government to also uphold the rights & standards in UNDRIP.

Overcoming Barriers to Implementing the UN Declaration on the Rights of Indigenous Peoples

Professor Brenda Gunn has funding through the University Research Grant Program to conduct research to illuminate the legal and political barriers to implementing the United Nations Declaration on the Rights of Indigenous Peoples (the UN Declaration) in Canada and explore potential strategies to overcome those barriers.  This project will review existing literature on global strategies to implement the Declaration as a basis for analyzing implementation issues specific to the Canadian context, including the Canadian constitutional framework.  The goal of this project is to identify concrete solutions to overcome existing obstacles to implementing the UN Declaration in Canada.  The end product of this research is a refereed academic publication which addresses a gap in the existing academic literature.

Understanding And Implementing The Un Declaration On The Rights Of Indigenous Peoples – An Introductory Handbook

Aboriginal Peoples and Canadian Justice System

Dr. Milward is an expert on criminal law and Aboriginal justice issues.  He is widely published in a number of international and national journals.  His current research is focused on the Mr. Big investigative technique, and Aboriginal over-representation as dangerous offenders subject to indeterminate detention.

Working with Elders in Educational Institutions

Wendy Whitecloud and Dr. Rainy Gaiwash (coming soon)

Right to Water

Prof. Karen Busby is leading research projects related to the human right to drinking water and sanitation.

Visit the Water Rights Research page to learn more.

Past Research

Truth and Reconciliation: Prairie Conversations

The Faculty was an engaged local partner of the Truth and Reconciliation Commission’s first national event held in Winnipeg June 2010, organizing an interdisciplinary conference. Twenty-five law student volunteers were on hand for the duration of the event to provide legal information and help to anyone who wanted to learn more about Aboriginal law.

Aboriginal Children and Aboriginal Women’s Rights

Anne McGillivray’s research has focused on children and the law and children’s right, with a particular focus on Aboriginal children. She has also worked in the areas of violence against women and Aboriginal women. Her work has been published in many different academic journals and books. Below are some examples of the work she has published in the area.

  • Black Eyes All of the Time: Intimate Violence, Aboriginal Women and the Justice System (1999) with Brenda Comaskey; prefaces by Judge Murray Sinclair and Elder Mae Louise Campbell. Toronto: University of Toronto Press
  • Everybody Had Black Eyes: Intimate Violence, Aboriginal Women and the Justice System (2000) with Brenda Comaskey in S. Pereault and J. Proulx, eds., No Place for Violence: Canadian Aboriginal Alternatives. Fernwood Books
  • Capturing Childhood: The Indian Child in the European Imagination (1999) in M.D.A. Freeman and Andrew Lewis, eds., Law and Literature. Oxford University Press
  • Images of Aboriginal Childhood: Contested Governance in the Canadian West to 1850 (1998) with Russell Smandych) in Rick Halpern and Martin Daunton, eds., The British Encounter with Indigenous Peoples. London: University College London Press
  • Everybody Had Black Eyes? Nobody Don’t Say Nothing (1998) with Brenda Comaskey in Kevin Bonnycastle and George Rigakos, eds. Unsettling Truths, Vancouver: Collective Press
  • Therapies of Freedom: The Colonization of Aboriginal Childhood (1997) in Anne McGillivray, ed., Governing Childhood. Aldershot: Dartmouth
  • Transracial Adoption and the Status Indian Child (1986) 5 Canadian Journal of Family Law 437-67

LLM Thesis supervised:

Ross Gordon Green, Aboriginal Sentencing and Mediation Initiatives: The Sentencing Circle and Other Community Participation Models in Six Aboriginal Communities. University of Manitoba, 1995. Published as Justice in Aboriginal Communities: Sentencing Alternatives. Saskatoon: Purich Publishing, 1998

Aboriginal Law Collection at the E.K. Williams Library

The E.K. Williams Library at the University of Manitoba Faculty of Law houses the most wide-ranging collection of materials on Aboriginal Law and related issues in the country.  In the 1980s the government of Manitoba commissioned the Aboriginal Justice Inquiry (AJI) which was the most exhaustive study of the justice system in relation to aboriginal persons ever undertaken.  The AJI created a hugely significant collection of over 1,200 items comprised of government reports, various studies, and unpublished papers in areas such as self-government, land claims, police, aboriginal courts and sentencing practices, etc.  Most of the material is Canadian and North American, but there are also instructive items from countries such as Australia and New Zealand.   The collection also includes the materials related to the conduct and findings of the Inquiry such as the transcripts of the community hearings, summaries of the 790 presentations to made to the AJI and the final reports of the Commission.  This expansive collection of materials was donated to the E.K. Williams Library in 1991 and has been integrated into its collection.  Subsequently the library has made a concerted effort to build upon this foundation by collecting comprehensively in the area of Aboriginal Law and Justice making the library’s collection on this important topic second to none in Canada.

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