Aboriginal and Environmental Law

Question 1

***What are the three questions the Court must answer for The Sparrow Test?

Answer 1

1. Is there an existing Aboriginal right?
2. Is the regulatory action unreasonable, impose undue hardship, deny preferred means of exercising the right?
3. Is the infringement on the Aboriginal right justifiable?

Question 2

***The Crown has a Duty to Consult by in what two ways?

Answer 2

1. In good faith

2. To maintain the “honour of the Crown” in reconciling the interests of the Crown and Aboriginal Peoples

Question 3

True or false: The Crown is under obligation to reach an agreement.

Answer 3

False

Question 4

What are 3 groups of Aboriginal people in Canada?

Answer 4

• “Indian”
• Inuit
• Metis

Question 5

How is Aboriginal Title to Land Proven?

Answer 5

• Land was occupied prior to Crown sovereignty – i.e. B.C. 1846
• Exclusive occupation
• Continuous occupation

Note: oral history has equal footing as other historical evidence

Question 6

True or false: Aboriginal Title to Land may be infringed if justified by the Sparrow Test?

Answer 6

True

Question 7

What Constitutes Aboriginal Title to Land?

Answer 7

• Right to continued occupation, exclusive use, and choice of uses.
• Crown must consult when Aboriginal title exists.
  
  • land title held communally
  • title can be transferred or sold to the Crown only

Question 8

Is Aboriginal Title to Land held by community, individuals, or both?

Answer 8

Communally

Question 9

Who may Aboriginal Land title be transferred or sold to?

Answer 9

The Crown only

Question 10

What are the Phases of the Crown’s Duty to Consult?

Answer 10

1) Pre-Consultation Analysis and Planning
2) Crown Consultation process
3) Accommodation
4) Implement decisions, monitor and evaluate

Question 11

True or false: Municipalities have legal duty to consult.

Answer 11

False.

However, “establishing and maintaining peaceful relationships is essential…”

Question 12

What onus is on Aboriginal communities?

Answer 12

1. Make concerns known in a timely manner
2. Respond to ministries’ attempts to resolve those concerns
3. Attempt to reach some mutually satisfactory solution

Question 13

True or false: Aboriginal communities do not have veto power over projects through duty to consult.

Answer 13

True

Question 14

*Supreme Court decisions must be followed by lower courts. What is the name of this legal principle?

Answer 14

Parliamentary Supremacy

Question 15

The Crown’s Duty to Consult is under ______ Law.

Answer 15

“Common” law