Respect and Submission in Contexts of Transition: Reviewing Judicial Interpretation from R v Drybones to R v Montour
Bibliographic record
Abstract
Since the Truth and Reconciliation Commission of Canada's call in 2015 for the adoption and implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), Canada has seen significant legislative developments. Notably, the Declaration of the Rights of Indigenous Peoples Act (DRIPA) in British Columbia, the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA) at the federal level, and subsequent amendments to the Interpretation Act in British Columbia have introduced innovative frameworks for procedural implementation. However, these legislative actions pose unique challenges, particularly in their interpretation by the judiciary. This paper navigates through the interpretive challenges posed by DRIPA and UNDRIPA, contextualizing them within the broader framework of Canadian law. While these acts do not give the UN Declaration direct force of law, they establish legal frameworks requiring governmental cooperation and consistency with Indigenous rights. The central question revolves around the judiciary's role in this process of procedural implementation: whether courts should have discretionary authority or be obligated to consider the UN Declaration in relevant matters. Drawing upon the work of David Dyzenhaus as well as legal pragmatism and historical precedents, the paper argues against the discretionary construction of implementation legislation, advocating instead for a coherent legal approach that mandates judicial consideration of the UN Declaration where relevant. By examining the Supreme Court’s response to the Canadian Bill of Rights in R. v. Drybones, the British Columbia Supreme Court’s decision in Gitxaala v British Columbia (Chief Gold Commissioner), and the Quebec Superior Court in R. v. Montour, the paper provides an analysis of principles of legal interpretation that inform the current contrasting approaches to the interpretation of implementation legislation. Through a principled understanding of the judiciary's role in procedural implementation, the paper concludes that courts must engage with the UN Declaration as part of Canada's ongoing process of constitutional reconciliation. It counters the argument that the UN Declaration is incompatible with Canadian constitutional law by illustrating how judicial interpretation can align with both the UN Declaration and existing constitutional frameworks. Ultimately, the paper offers guidance for the judiciary in navigating the complexities of implementing Indigenous rights legislation, emphasizing the importance of consistency and principled legal interpretation in achieving reconciliation.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.059 | 0.116 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.002 | 0.002 |
| Bibliometrics | 0.004 | 0.006 |
| Science and technology studies | 0.035 | 0.064 |
| Scholarly communication | 0.025 | 0.009 |
| Open science | 0.009 | 0.009 |
| Research integrity | 0.021 | 0.036 |
| Insufficient payload (model declined to judge) | 0.002 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".