Brian Slattery, B.A., BCL, D.Phil., F.R.S.C., is a Professor Emeritus of Law at Osgoode Hall Law School, York University, in Toronto, Ontario, Canada. He is a prominent academic in Canadian Constitutional Law and Aboriginal rights discourse. He practices Aboriginal law at Slattery & Slattery.
Education
Slattery holds a Doctorate of Law from Oxford University, a Bachelor of Civil Law (1968) from McGill University, and a Bachelor of Arts (Honours English) from Loyola College of Montreal.
Academic career
Slattery joined Osgoode Hall Law School in 1981. He has previously held academic positions at McGill University, the University of Dar es Salaam (Tanzania) and the University of Saskatchewan, where he was Research Director of the Native Law Centre. Professor Slattery has been Senior Advisor to the Royal Commission on Aboriginal Peoples and was elected to the Royal Society of Canada in 1995 for his work on advancing aboriginal rights. Slattery was inducted as distinguished research professor at York University in 2009.
Professor Slattery has been cited by the Supreme Court of Canada in more than a dozen decisions, including most of the important cases dealing with aboriginal rights. His central thesis is that native Canadians (unlike those in many other countries) were never conquered and have inherent sovereignty from being the first occupiers of the land. The Government of Canada has never acquired a legal or moral right to impose its sovereignty over them. The honourable approach requires the government to recognize the inherent rights of the natives, and to negotiate, consult, and establish treaties where they do not yet exist, rather than force aboriginals to go to court to assert their rights.
Publications
Books and monographs Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (Saskatoon: University of Saskatchewan Native Law Centre, 1983), 45 pages. Monograph analysing judicial theories of aboriginal title as developed by Canadian, American, and Commonwealth courts. The Land Rights of Indigenous Canadian Peoples (Saskatoon: University of Saskatchewan Native Law Centre, 1979), 478 pages. Work dealing with the historical and legal foundations of aboriginal land rights in Canada from the earliest days of contact to the close of the 17th century, and focussing in particular on the Royal Proclamation of 1763 (reprint of Oxford University Doctoral Thesis). Handbook on Sentencing (Nairobi: East African Literature Bureau, 1972), 194 pages. Book dealing with the legal principles of sentencing as expounded by East African and British courts. "Escape to Ponti" (Novel) Slattery's first novel for children.
Edited books Canadian Native Law Cases (University of Saskatchewan Native Law Centre, 1980–91), nine volumes, co-edited with L. Charlton and S. Stelck. Series collecting all reported Canadian legal decisions on native rights from 1763 to 1978, with topical indexes.
Chapters in books
"The Pluralism of the Charter: Revisiting the Oakes Test" in Luc B. Tremblay & Gregoire C.N. Webber, eds., The Limitation of Charter Rights: Critical Essays on R. v. Oakes (Montreal: Editions Themis, 2009) 13-35 (23 pages). "Why the Governor General Matters" in Peter H. Russell & Lorne Sossin, eds., Parliamentary Democracy in Crisis (Toronto: University of Toronto Press, 2009), 79-90 (12 pages). "The Metamorphosis of Aboriginal Title" in Maria Morellato, ed. Aboriginal Law Since Delgamuukw (Aurora, Ont.: Canada Law Book, 2009) 145-73 (29 pages). This paper is a reprint of an article that first appeared in the Canadian Bar Review. "The Generative Structure of Aboriginal Rights" in John D. Whyte, ed., Moving Toward Justice: Legal Traditions and Aboriginal Justice (Saskatoon, Sask: Purich Publishing, 2008) 20-48 (29 pages). This paper is a reprint of an article first published in the Supreme Court Law Review. "A Taxonomy of Aboriginal Rights" in Hamar Foster, Heather Raven & Jeremy Webber, eds., Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver: University of British Columbia Press, 2007) 111-28 (28 pages). This paper proposes a new conceptual scheme for aboriginal rights based on recent trends in Supreme Court decisions. "The Organic Constitution: Aboriginal Peoples and the Evolution of Canada" in Wesley Cragg and Christine Koggel, eds., Contemporary Moral Issues, 5th ed. (McGraw-Hill Ryerson Press, 2005) 317-23 (8 pages). This is a revised and updated version of a paper that was originally published in the Osgoode Hall Law Journal. "Paper Empires: The Legal Dimensions of French and English Ventures in North America", in John McLaren, A.R. Buck and Nancy E. Wright, eds. Despotic Dominion: Property Rights in British Settler Societies (Vancouver: University of British Columbia Press, 2005), 50-78 (29 pages). Paper discussing French and English state practice with respect to indigenous peoples and territories in North America in the 16th-17th centuries. "Our Mongrel Selves: Pluralism, Identity and the Nation", in Ysolde Gendreau, ed. Community of Right/Rights of the Community (Montreal: Editions Themis, 2003) 3-41 (39 pages). Paper criticizing the view that nations@are natural entities, composed of homogeneous linguistic and cultural groups, and argues for a view that takes account of multiple and overlapping identities. "Making Sense of Aboriginal and Treaty Rights", in Joseph Magnet, ed. Constitutional Law of Canada: Cases, Notes and Materials (Edmonton: Juriliber, 2001), I, 809-22 (14 pages). Revised version of "Making Sense of Aboriginal and Treaty Rights" (2000) 79 Canadian Bar Review 196-224 (29 pages), listed below. "The Nature of Aboriginal Title", in Owen Lippert ed., Beyond the Nass Valley: National Implications of the Supreme Court's Delgamuukw Decision (Vancouver: Fraser Institute, 2000), pp. 11–33 (23 pages). Paper discussing the nature and scope of aboriginal title in the light of the Supreme Court's decision in the Delgamuukw case. "The Recollection of Historical Practice", in Andrea P. Morrison, ed., Justice for Natives: Searching for Common Ground (Montreal: McGill-Queen's University Press, 1997), pp. 76–82 (7 pages). Paper surveying alternative approaches to the question of aboriginal rights. "Bringing the Constitution Home", in Andrea P. Morrison, ed., Justice for Natives: Searching for Common Ground (Montreal: McGill-Queen's University Press, 1997), pp. 128–134 (7 pages). Paper arguing for a new model of the Constitution of Canada, one that is grounded in Canadian history and experience and in particular the history of relations between Aboriginal peoples and the Crown. "Transcending Community: Some Thoughts on Havel and Bergson", in M.M. Karlsson, O.P. Jonsson. and E.M. Brynjarsdottir, eds., Law, Justice and the State (Berlin: Duncker & Humblot, 1993), pp. 265–76 (12 pages). Paper discussing the tension between human rights and communal ties, as seen in the writings of Václav Havel and Henri Bergson. "First Nations and the Constitution: A Question of Trust", in R.S. Blair and J.T. McLeod, eds., The Canadian Political Tradition, 2nd ed. (Toronto: Nelson Canada, 1993), pp. 112–36 (25 pages). Edited version of "First Nations and the Constitution: A Question of Trust" (1992), 71 Canadian Bar Review 261-93, listed below. "Aboriginal Sovereignty and Imperial Claims", in B.W. Hodgins, S. Heard, and J.S. Milloy, eds., Co-Existence?: Studies in Ontario-First Nations Relations (Peterborough, Ont.: Frost Centre of Trent University, 1992), pp. 151–70 (20 pages). Reprint of "Aboriginal Sovereignty and Imperial Claims" (1991) 29 Osgoode Hall Law Journal 681-703, listed below. "The Legal Basis of Aboriginal Title", in F. Cassidy, ed., Aboriginal Title in British Columbia: Delgamuukw v. The Queen (Montreal: Institute for Research on Public Policy, 1992), pp. 113–32 (20 pages). Paper considering various approaches to the question of aboriginal land rights in the light of the judgement of the B.C. Supreme Court in the Delgamuukw case. "The Myth of Retributive Justice", in W. Cragg ed., Retributivism and Its Critics (Stuttgart: Franz Steiner Verlag, 1992), pp. 27–34 (8 pages). Paper suggesting that the notion of retribution is intimately connected with our sense of time and narrative, and as such resists conventional philosophical analysis. "Aboriginal Sovereignty and Imperial Claims", in Frank Cassidy, ed., Aboriginal Self-Determination (Halifax, N.S.: Institute for Research on Public Policy, 1991), pp. 197–217 (21 pages). Reprint of "Aboriginal Sovereignty and Imperial (1991) 29 Osgoode Hall Law Journal 681-703, listed below. "Does the Charter Apply to Private Persons?", in Saywell and Vegh, eds., Making the Law: The Courts and the Constitution (Toronto: Copp Clark Pitman Ltd., 1991), pp. 390–401 (12 pages). Reprint of "Does the Charter Apply to Private Persons?" (1985) 63 Canadian Bar Review 148-61, listed below. "Are Constitutional Cases Political?", in Barker, ed., Contending Perspectives (Toronto: Nelson Canada, 1991). Reprint of "Are Constitutional Cases Political?" (1988) 11 Supreme Court Law Review 507-27, listed below. "Aboriginal Language Rights", in Schneiderman, ed., Language and the State, (Cowansville, Que.: Editions Yvon Blais, 1991), pp. 369–74 (6 pages). Paper outlining a general theory of aboriginal language rights under the Canadian Constitution. "Two Models of the Charter", in G. Lafrance, ed., Ethics and Basic Rights (Ottawa: University of Ottawa Press, 1989), pp. 300–05 (6 pages). Adapted excerpt from "A Theory of the Charter", (1988) 25 Osgoode Hall Law Journal 701-47, listed below. "The Constitutional Priority of the Charter", in K. Swinton and S. Rogerson, eds., Competing Constitutional Visions: The Meech Lake Accord (1988), pp. 81–93 (13 pages). Paper arguing that the Charter presumptively takes priority over subsequent constitutional amendments. "Did France Claim Canada Upon 'Discovery'?", in Bumsted, ed., Interpreting Canada's Past (Toronto: Oxford University Press, 1986), Vol. I, pp. 2–26 (25 pages). Revised version of "French Claims in North America, 1500-59", (1978) 59 Canadian Historical Review 139-69, listed below. "The Hidden Constitution: Aboriginal Rights in Canada", in Boldt, Long, and Little Bear, eds., The Quest for Justice: Aboriginal People and Aboriginal Rights (Toronto: University of Toronto Press, 1985), pp. 114–38 (25 pages). Adapted version of "The Hidden Constitution: Aboriginal Rights in Canada" (1984) 32 American Journal of Comparative Law 361-91, listed below.
Journal articles "The Generative Structure of Aboriginal Rights" (2007) 38 Supreme Court Law Review (2d) 595-628 (34 pages) "The Metamorphosis of Aboriginal Title" (2006) 85 Canadian Bar Review 255-86 (31 pages). Paper arguing that we need to distinguish between principles of recognition and principles of reconciliation in applying the constitutional guarantee of aboriginal rights. "Aboriginal Rights and the Honour of the Crown" (2005) 29 Supreme Court Law Review 433-45. Paper arguing that the guarantee of aboriginal rights in section 35(1) of the Constitution Act should be viewed as embodying a generative constitutional order directed at the Crown and Aboriginal peoples, and not simply as a static order directed at the courts. "Making Sense of Aboriginal and Treaty Rights" (2000) 79 Canadian Bar Review 196-224 (29 pages). Paper proposing a general framework for understanding aboriginal and treaty rights, in light of the jurisprudence of the Supreme Court over the past thirty years. "Some Thoughts on Aboriginal Title" (1999) 48 University of New Brunswick Law Journal 19-40 (22 pages). Paper reviewing the status of aboriginal land rights, with particular reference to the Maritime Provinces; Rand Memorial Lecture, Faculty of Law, University of New Brunswick.