Searching for “Superchief” and Other Fictional Indians: A Narrative and Case Comment on R v Bernard
In R v Bernard, 2017 NBCA 48, the New Brunswick Court of Appeal upheld the lower courts’ reasoning that a Mìgmaw man living in the traditional Mìgmaq hunting territory of St. John, New Brunswick could not exercise his Aboriginal rights to hunt because he could not prove he descended from the particu...
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ftyorkunivohls:oai:digitalcommons.osgoode.yorku.ca:ohlj-3591 2023-08-15T12:42:11+02:00 Searching for “Superchief” and Other Fictional Indians: A Narrative and Case Comment on R v Bernard Metallic, Naiomi 2021-01-14T08:00:00Z application/pdf https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/7 https://doi.org/10.60082/2817-5069.3591 https://digitalcommons.osgoode.yorku.ca/context/ohlj/article/3591/viewcontent/uc.pdf unknown Osgoode Digital Commons https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/7 doi:10.60082/2817-5069.3591 https://digitalcommons.osgoode.yorku.ca/context/ohlj/article/3591/viewcontent/uc.pdf http://creativecommons.org/licenses/by-nc-nd/4.0/ Osgoode Hall Law Journal Law text 2021 ftyorkunivohls https://doi.org/10.60082/2817-5069.3591 2023-07-22T23:05:22Z In R v Bernard, 2017 NBCA 48, the New Brunswick Court of Appeal upheld the lower courts’ reasoning that a Mìgmaw man living in the traditional Mìgmaq hunting territory of St. John, New Brunswick could not exercise his Aboriginal rights to hunt because he could not prove he descended from the particular subgroup of Mìgmaq who were at St. John at the time of contact with Europeans. In deciding so, the Court of Appeal rejected the argument that the Mìgmaq, as a nation, are the appropriate rights holders and ought to be the body deciding who can exercise the Mìgmaw right to hunt in the province. This argument was rejected based on the evidence of an expert historian who testified that Mìgmaq could not be a “nation” because they had a decentralized form of government and lacked a “Super Chief.” The case also exhibits undertones of floodgate fears of over-hunting as a consequence of finding the Mìgmaq nation to be the right-holders. This, however, ignores the role Mìgmaq laws and protocols will play in responsibly regulating Mìgmaq hunting and avoiding overuse of resources (not to mention the Crown’s ability to address conservation issues through the Sparrow justification framework). This article tells the story of the Bernard case and provides critical commentary on it. Text Mìgmaq York University Toronto, Osgoode Hall Law School: Osgoode Digital Commons Osgoode Hall Law Journal 57 1 230 264 |
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York University Toronto, Osgoode Hall Law School: Osgoode Digital Commons |
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Law |
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Law Metallic, Naiomi Searching for “Superchief” and Other Fictional Indians: A Narrative and Case Comment on R v Bernard |
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Law |
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In R v Bernard, 2017 NBCA 48, the New Brunswick Court of Appeal upheld the lower courts’ reasoning that a Mìgmaw man living in the traditional Mìgmaq hunting territory of St. John, New Brunswick could not exercise his Aboriginal rights to hunt because he could not prove he descended from the particular subgroup of Mìgmaq who were at St. John at the time of contact with Europeans. In deciding so, the Court of Appeal rejected the argument that the Mìgmaq, as a nation, are the appropriate rights holders and ought to be the body deciding who can exercise the Mìgmaw right to hunt in the province. This argument was rejected based on the evidence of an expert historian who testified that Mìgmaq could not be a “nation” because they had a decentralized form of government and lacked a “Super Chief.” The case also exhibits undertones of floodgate fears of over-hunting as a consequence of finding the Mìgmaq nation to be the right-holders. This, however, ignores the role Mìgmaq laws and protocols will play in responsibly regulating Mìgmaq hunting and avoiding overuse of resources (not to mention the Crown’s ability to address conservation issues through the Sparrow justification framework). This article tells the story of the Bernard case and provides critical commentary on it. |
format |
Text |
author |
Metallic, Naiomi |
author_facet |
Metallic, Naiomi |
author_sort |
Metallic, Naiomi |
title |
Searching for “Superchief” and Other Fictional Indians: A Narrative and Case Comment on R v Bernard |
title_short |
Searching for “Superchief” and Other Fictional Indians: A Narrative and Case Comment on R v Bernard |
title_full |
Searching for “Superchief” and Other Fictional Indians: A Narrative and Case Comment on R v Bernard |
title_fullStr |
Searching for “Superchief” and Other Fictional Indians: A Narrative and Case Comment on R v Bernard |
title_full_unstemmed |
Searching for “Superchief” and Other Fictional Indians: A Narrative and Case Comment on R v Bernard |
title_sort |
searching for “superchief” and other fictional indians: a narrative and case comment on r v bernard |
publisher |
Osgoode Digital Commons |
publishDate |
2021 |
url |
https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/7 https://doi.org/10.60082/2817-5069.3591 https://digitalcommons.osgoode.yorku.ca/context/ohlj/article/3591/viewcontent/uc.pdf |
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Mìgmaq |
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Mìgmaq |
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Osgoode Hall Law Journal |
op_relation |
https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/7 doi:10.60082/2817-5069.3591 https://digitalcommons.osgoode.yorku.ca/context/ohlj/article/3591/viewcontent/uc.pdf |
op_rights |
http://creativecommons.org/licenses/by-nc-nd/4.0/ |
op_doi |
https://doi.org/10.60082/2817-5069.3591 |
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Osgoode Hall Law Journal |
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57 |
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1 |
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230 |
op_container_end_page |
264 |
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