Friday 3 November 2017

Questions that Courts ask themselves

1. In America: "Who would imagine that more than 150 years after the Treaty of Olympia (the “Treaty”) was signed between the United States and the Quileute and Quinault tribes, we would be asked to determine whether the “right of taking fish” includes whales and seals? Although scientists tell us sea mammals are not fish, these appeals ask us to go back to the 1855 treaty negotiation and signing and place ourselves in the shoes of two signatory tribes—the Quileute Indian Tribe (the “Quileute”) and the Quinault Indian Nation (the “Quinault”)—to determine what they intended the Treaty to cover." Spoiler alert: whales are fish.

2. In England: "Is the shape of a London taxi a valid registered trade mark?" The judgment has plenty of taxi illustrations.

3. In Australia: "Does a candidate in possession of two conflicting advices on the question know that he or she is a foreign citizen for the purposes of s 44(i) only when the advice that he or she is indeed a foreign citizen is accepted as correct by a court?" (Actually that was a rhetorical question intended to show problems with one contended-for construction of the Constitution.)  Bonus question for you. Here are the facts - was Ms Waters Canadian?
"Ms Waters was born in February 1977 in Winnipeg, Canada to Australian parents who were living in Canada at the time for study and work purposes. Neither was a permanent resident of Canada. Ms Waters' birth was registered with the Australian High Commission in Ottawa in June 1977. It was not in doubt that Ms Waters was an Australian citizen by descent. In January 1978, as an infant aged 11 months, Ms Waters left Canada with her parents, who were returning to live in Australia. Ms Waters has never held a Canadian passport. She has not visited Canada since leaving it in January 1978. She has always considered herself to be an Australian and has never understood that she owes allegiance to any other country. She has not sought or received consular assistance or any other kind of government assistance from Canada and she has not exercised any rights as a Canadian citizen. Her mother had given her to understand that she would be eligible to apply for Canadian citizenship when she turned 21. On turning 21 in 1998, Ms Waters considered applying for Canadian citizenship but she decided against it."
Answer: yes she was Canadian! (Mark Steyn's layman's take on it: "... in Australia everyone's a potential alien mainly in the sense of that John Hurt chestburster scene in which you can be as Aussie as can be chugging along all ticketty-boo and then some creepy Welsh midget great-uncle bursts through your rib cage and leaps out.")

3 comments:

  1. In passing, I enjoyed learning of a legal term which extends the Latin sense beyond any ancient Roman's comprehension, namely (or perhaps I should say ie or even videlicet) " quia timet"

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    1. On the other hand, a Roman would have no difficulty in grasping a debate about the scope of fishing rights granted to a tribe under a treaty recognising the power of the Empire (didn't Sparta become a sort of 'Indian Reservation'? - my history is rather hazy). Nor the debate about the possibility of divided loyalties of a certain "Senator Xenophon".

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