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KENT MCNEIL
Address
Osgoode Hall Law School
York University
4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
Tel: (416) 736-5582
Fax: (416) 736-5736
E-mail: kmcneil@yorku.ca
Brief bibliography
Professor Kent McNeil teaches Property Law, First Nations and the Law, and Trusts. He has been a faculty member at Osgoode Hall Law School since 1987, and was a former Research Director of the University of Saskatchewan Native Law Centre. In 2006, he was awarded a prestigious Killam Fellowship.
Professor McNeil's primary research interest is the rights of Indigenous peoples, particularly in Canada, Australia and the United States. He has written a book, Common Law Aboriginal Title, and a number of monographs and articles on this subject, some of which are now collected in Emerging Justice? Essays on Indigenous Rights in Canada and Australia. Aspects of his work include land claims, hunting and fishing rights, water rights, constitutional issues, and self-government. His expertise in Aboriginal law has led to several requests for Professor McNeil's services as a consultant. Among other things, he has acted as an expert on Aboriginal and treaty rights in the environmental assessment of hydroelectric development, and provided opinions on aspects of Aboriginal land claims.
Publications
Books:
Emerging Justice? Essays on Indigenous Rights in Canada and Australia. Saskatoon: University of
Saskatchewan Native Law Centre, 2001. Winner of Saskatchewan Book Awards for Publishing and
Publishing in Education.
Common Law Aboriginal Title. Oxford: Clarendon Press, 1989
Monographs:
Defining Aboriginal Title in the 90's: Has the Supreme Court Finally Got It Right? Toronto: Robarts Centre for Canadian Studies, York University, 1998
Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, Vol. 2, Domestic Dimensions, with Renée Dupuis. Ottawa: Royal Commission on Aboriginal Peoples, 1995
Indian Hunting, Trapping and Fishing Rights in the Prairie Provinces of Canada. Saskatoon: University of
Saskatchewan Native Law Centre, 1983
Native Rights and the Boundaries of Rupert's Land and the North-Western Territory. Saskatoon: University
of Saskatchewan Native Law Centre, 1982
Native Claims in Rupert's Land and the North-Western Territory: Canada's Constitutional Obligations.Saskatoon: University of Saskatchewan Native Law Centre, 1982
Articles and Chapters in Books:
“Aboriginal Sovereignty and European Colonization of Canada”, submitted for publication
“The Relationship between the Sources and Content of Indigenous Land Rights in Australia and
Canada”, accepted for a book entitled Aboriginal Title and Indigenous Peoples: Comparative Essays on
Canada, Australia and New Zealand, submitted for publication to University of Calgary Press
“Fiduciary Obligations and Aboriginal Peoples”, forthcoming in Mark Gillen and Faye Woodman, eds.,
The Law of Trusts: A Contextual Approach, 2nd ed., Emond Montgomery, Toronto
“Negotiated Sovereignty: Indian Treaties and the Acquisition of American and Canadian Territorial
Rights in the Pacific Northwest”, forthcoming in Alexandra Harmon, ed., The Power of Promises:
Perspectives on Treaties with Native Peoples of the Pacific Northwest, University of Washington Press,
Seattle
“Legal Rights and Legislative Wrongs: Maori Claims to the Foreshore and Seabed”, forthcoming in
Claire Charters and Andrew Erueti, eds., Maori Property Rights in the Foreshore and Seabed: The Latest
Frontier, forthcoming, Victoria University of Wellington Press, Wellington, N.Z.
“Judicial Approaches to Self-Government since Calder: Searching for Doctrinal Coherence”,
forthcoming in Hamar Foster and Jeremy Weber, eds., Let Right Be Done: Calder, Aboriginal Title and
the Future of Indigenous Rights, UBC Press, Vancouver
“Aboriginal Title and the Supreme Court: What’s Happening?” (2006) 69 Saskatchewan Law Review
281-308.
“Aboriginal Rights, Resource Development, and the Source of the Provincial Duty to Consult in Haida
Nation and Taku River” (2005) 29 Supreme Court Law Review (2nd series) 447-60.
“Continuity of Aboriginal Rights”, in Kerry Wilkins, ed., Advancing Aboriginal Claims:
Visions/Strategies/Directions (Saskatoon: Purich Publishing, 2004), 127-50
“The Vulnerability of Indigenous Land Rights in Australia and Canada” (2004) 42 Osgoode Hall Law
Journal 271-301
“Challenging Legislative Infringements of the Inherent Aboriginal Right of Self-Government” (2003)
22 Windsor Yearbook of Access to Justice 329-61
“Culturally Modified Trees, Indian Reserves and the Crown's Fiduciary Obligations” (2003) 21 Supreme
Court Law Review (2d) 105-38
“Reconciliation and the Supreme Court: The Opposing Views of Chief Justices Lamer and McLachlin”
(2003) 2 Indigenous Law Journal 1-26
“Aboriginal Title on the Ground: Establishing and Protecting Occupation”, in Bruce W. Hodgins, Ute
Lischke, and David T. McNab, eds., Blockades and Resistance: Studies in Actions of Peace and the Temagami Blockades of 1988-89 (Waterloo: Wilfrid Laurier University Press, 2003), 147-56
“Aboriginal Governments and the Charter: Lessons from the United States” (2002) 17 Canadian
Journal of Law and Society 73-105
“Self-Government and the Inalienability of Aboriginal Title” (2002) 47 McGill Law Journal 473-510
“Extinguishment of Aboriginal Title in Canada: Treaties, Legislation, and Judicial Discretion”
(2001-2002) 33 Ottawa Law Review 301-46
“Aboriginal Rights in Transition: Reassessing Aboriginal Title and Governance” (2001) 31 American
Review of Canadian Studies 317-29
“Aboriginal Title and Section 88 of the Indian Act” (2000) 34 University of British Columbia Law Review
159-94
“Aboriginal Title as a Constitutionally Protected Property Right”, in Owen Lippert, ed., Beyond the
Nass Valley: National Implications of the Supreme Court's Delgamuukw Decision (Vancouver: The Fraser
Institute, 2000), 55-75
“Fiduciary Obligations and Aboriginal Peoples”, in Mark R. Gillen and Faye Woodman, eds., The Law
of Trusts: A Contextual Approach (Toronto: Emond Montgomery Publications, 2000), 807-65
“Sovereignty on the Northern Plains: Indian, European, American and Canadian Claims” (2000) 39:3
Journal of the West 10-18
“Legalizing Oral History: Proving Aboriginal Title in Canadian Courts”, with Lori Ann Roness, (2000)
39:3 Journal of the West 66-74
“The Onus of Proof of Aboriginal Title” (1999) 37 Osgoode Hall Law Journal 775-803
“Sovereignty and the Aboriginal Nations of Rupert's Land” (1999) 37 (spring/summer) Manitoba
History 2-8
“Social Darwinism and Judicial Conceptions of Indian Title in Canada in the 1880s” (1999) 38:1
Journal of the West 68-76
“Aboriginal Rights in Canada: From Title to Land to Territorial Sovereignty” (1998) 5 Tulsa Journal of
Comparative and International Law 253-98
“Aboriginal Title and the Division of Powers: Rethinking Federal and Provincial Jurisdiction” (1998)
61 Saskatchewan Law Review 431-65
“Aboriginal Title and Aboriginal Rights: What's the Connection?” (1997) 36 Alberta Law Review 117-
48
“Extinguishment of Native Title: The High Court and American Law” (1997) 2 Australian Indigenous
Law Reporter 365-70
“How Can Infringements of the Constitutional Rights of Aboriginal Peoples Be Justified?” (1997) 8:2
Constitutional Forum 33-39
“Co-Existence of Indigenous Rights and Other Interests in Land in Australia and Canada” [1997] 3
Canadian Native Law Reporter 1-18, a shorter version of which appeared as “Co-Existence of
Indigenous and Non-Indigenous Land Rights: Australia and Canada Compared in Light of the Wik
Decision” (1997) 4:5 Indigenous Law Bulletin 4-9
“The Meaning of Aboriginal Title”, in Michael Asch, ed., Aboriginal and Treaty Rights in Canada:
Essays on Law, Equality and Respect for Difference (Vancouver: University of British Columbia Press,
1997), 135-54
“Aboriginal Governments and the Canadian Charter of Rights and Freedoms” (1996) 34 Osgoode HallLaw Journal 61-99
“Racial Discrimination and Unilateral Extinguishment of Native Title” (1996) 1 Australian Indigenous
Law Reporter 181-221
“The Decolonization of Canada: Moving Toward Recognition of Aboriginal Governments” (1994) 7
Western Legal History 113-41
“Envisaging Constitutional Space for Aboriginal Governments” (1993) 19 Queen's Law Journal 95-136
“Aboriginal Nations and Quebec's Boundaries: Canada Couldn't Give What It Didn't Have”, in Daniel
Drache and Roberto Perin, eds., Negotiating with a Sovereign Quebec (Toronto: Lorimer, 1992), 107-23
“The High Cost of Accepting Benefits from the Crown: A Comment on the Temagami Indian Land
Case” [1992] 1 Canadian Native Law Reporter 40-69
“A Question of Title: Has the Common Law Been Misapplied to Dispossess the Aboriginals?”
(1990) 16 Monash University Law Review 91-110
“The Temagami Indian Land Claim: Loosening the Judicial Strait-Jacket”, in Matt Bray and Ashley
Thomson, eds., Temagami: A Debate on Wilderness (Toronto: Dundurn Press, 1990), 185-221
“The Constitution Act, 1982, Sections 25 and 35” [1988] 1 Canadian Native Law Reporter 1-13
“The Constitutional Rights of the Aboriginal Peoples of Canada” (1982) 4 Supreme Court Law Review
255-65
