Procedural Injustice: Indigenous Claims, Limitation Periods, and Laches
When Indigenous peoples go to court to seek justice for the historical wrongs they have endured, the Crown often tries to prevent their claims from even being heard by pleading statutes of limitations and laches. The application of these barriers raises serious constitution issues that have been tak...
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ftyorkunivohls:oai:digitalcommons.osgoode.yorku.ca:all_papers-1343 2023-05-15T16:16:36+02:00 Procedural Injustice: Indigenous Claims, Limitation Periods, and Laches McNeil, Kent Enns, Thomas 2022-02-01T08:00:00Z application/pdf https://digitalcommons.osgoode.yorku.ca/all_papers/336 https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1343&context=all_papers unknown Osgoode Digital Commons https://digitalcommons.osgoode.yorku.ca/all_papers/336 https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1343&context=all_papers All Papers Constitutional Law Indigenous Indian and Aboriginal Law Law text 2022 ftyorkunivohls 2022-03-06T00:00:40Z When Indigenous peoples go to court to seek justice for the historical wrongs they have endured, the Crown often tries to prevent their claims from even being heard by pleading statutes of limitations and laches. The application of these barriers raises serious constitution issues that have been taken account of by the Supreme Court only in the context of declarations of constitutional invalidity. Arguments based on the constitutional division of powers and section 35(1) of the Constitution Act, 1982 have not been addressed by the Court. As a result, limitations statutes that vary from province to province have been applied ad hoc by lower courts, with inconsistent and unjust results. In addition to constitutional concerns, there are also convincing policy reasons why limitations statutes and laches should not be available to deny Indigenous claims in most cases. Access to justice has too often been denied to Indigenous peoples in the past through barriers such as sovereign immunity and federal legislation preventing First Nations from hiring lawyers to pursue their claims. Reconciliation is not promoted by time limits on legal action that perpetuate injustice by continuing to deny Indigenous people access to the courts. Text First Nations York University Toronto, Osgoode Hall Law School: Osgoode Digital Commons Indian |
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York University Toronto, Osgoode Hall Law School: Osgoode Digital Commons |
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Constitutional Law Indigenous Indian and Aboriginal Law Law |
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Constitutional Law Indigenous Indian and Aboriginal Law Law McNeil, Kent Enns, Thomas Procedural Injustice: Indigenous Claims, Limitation Periods, and Laches |
topic_facet |
Constitutional Law Indigenous Indian and Aboriginal Law Law |
description |
When Indigenous peoples go to court to seek justice for the historical wrongs they have endured, the Crown often tries to prevent their claims from even being heard by pleading statutes of limitations and laches. The application of these barriers raises serious constitution issues that have been taken account of by the Supreme Court only in the context of declarations of constitutional invalidity. Arguments based on the constitutional division of powers and section 35(1) of the Constitution Act, 1982 have not been addressed by the Court. As a result, limitations statutes that vary from province to province have been applied ad hoc by lower courts, with inconsistent and unjust results. In addition to constitutional concerns, there are also convincing policy reasons why limitations statutes and laches should not be available to deny Indigenous claims in most cases. Access to justice has too often been denied to Indigenous peoples in the past through barriers such as sovereign immunity and federal legislation preventing First Nations from hiring lawyers to pursue their claims. Reconciliation is not promoted by time limits on legal action that perpetuate injustice by continuing to deny Indigenous people access to the courts. |
format |
Text |
author |
McNeil, Kent Enns, Thomas |
author_facet |
McNeil, Kent Enns, Thomas |
author_sort |
McNeil, Kent |
title |
Procedural Injustice: Indigenous Claims, Limitation Periods, and Laches |
title_short |
Procedural Injustice: Indigenous Claims, Limitation Periods, and Laches |
title_full |
Procedural Injustice: Indigenous Claims, Limitation Periods, and Laches |
title_fullStr |
Procedural Injustice: Indigenous Claims, Limitation Periods, and Laches |
title_full_unstemmed |
Procedural Injustice: Indigenous Claims, Limitation Periods, and Laches |
title_sort |
procedural injustice: indigenous claims, limitation periods, and laches |
publisher |
Osgoode Digital Commons |
publishDate |
2022 |
url |
https://digitalcommons.osgoode.yorku.ca/all_papers/336 https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1343&context=all_papers |
geographic |
Indian |
geographic_facet |
Indian |
genre |
First Nations |
genre_facet |
First Nations |
op_source |
All Papers |
op_relation |
https://digitalcommons.osgoode.yorku.ca/all_papers/336 https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1343&context=all_papers |
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