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Environmental Law > Aboriginal Law and Environment > Flashcards

Aboriginal Law and Environment Flashcards

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1
Q

Which proclamation recognized the rights of Indigenous peoples to their lands, and prohibited any private settlement of those lands?

A

Royal Proclamation of 1763

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2
Q

how many recognized treaties are in Canada?

A

70

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3
Q

What are an exchange of inherent Aboriginal rights and title for specific rights agreed to by the parties

A

Treaties

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4
Q

How many treaty obligations in the past were honoured by the government?

A

Not many.

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5
Q

In modern treaties, what can the crown not do?

A

The crown cannot contract out of its duty of honourable dealing with Aboriginal people.

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6
Q

How do aboriginal rights cases arise?

A

Aboriginal group brings a claim to have their rights declared.

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7
Q

What are the 4 stages of Aboriginal rights analysis?

A

Stage 1: Establishing the Right
Stage 2: Determining Extinguishment
Stage 3: Determining prima facie Infringement
Stage 4: Determining Justification

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8
Q

In stage 1: establishing the right, the onus is on the community claiming the right to provide evidence of:

A

Existence at contact
Integral
Distinctive
Continuity

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9
Q

In stage 2: Extinguishment, the onus is on who to prove extinguishment?

A

The Crown

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10
Q

In stage 2, Extinguishment requires what in the action or legislation to extinguish?

A

A clear and plain intent

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11
Q

In stage 2: If extinguishment is not demonstrated, which stage(s) should be considered?

A

Stage 3: Infringement

Stage 4: Justification

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12
Q

In stage 3: Infringement, the onus is on who to demonstrate that government action has infringed the right in question?

A

First Nation Community

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13
Q

What must First Nations communities demonstrate when claiming Infringement (stage 3)

A
  1. Government action/legislation is interfering with an existing aboriginal right
  2. The interference constitutes a prima facie infringement.
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14
Q

In stage 4: Justification, the onus is on who to demonstrate that the infringement is justified?

A

The Crown

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15
Q

What re the 2 requirements of stage 4: Justification?

A
  1. Valid, substantial and compelling purpose

2. Honour of the Crown

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16
Q

What is “Honour of the Crown”?

hint: 3 principles

A
  1. Crown must act honourably in all of its dealings with Aboriginal peoples
  2. Required to achieve the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.
  3. Gives rise to different duties in different circumstances.
17
Q

What is it called if the Crown fails to justify infringement and damage to the resource or the exercise of the right has occurred?

A

Remedy

18
Q

Where prosecution has been pursued and aboriginal and treaty rights have been raised as a defence, what three remedies take place?

A
  1. The person charged will be acquitted
  2. Conviction overturned
  3. Declaration may be issued
19
Q

Where an Aboriginal group brings an action, the appropriate remedy may be what?

A
  1. Compensation
  2. Declaration
  3. Injunction
20
Q

What is Aboriginal title?

A

A type of Aboriginal right that relates to land

21
Q

The test to meet is whether the First Nation had exclusive occupation of definite tracts of land prior to the assertion of Crown Sovereignty.

What three criteria appy?

A
  1. Occupation
  2. Exclusivity
  3. Continuity since before the assertion of crown sovereignty
22
Q

What is aboriginal title based on?

A

Common law & Aboriginal perspectives

23
Q

What does “Inalienable” mean?

A

cant be transferred, sold or surrendered (except to the Crown by treaty)

24
Q

Is Aboriginal title Absolute?

A

No

25
Q

What does Aboriginal title include a legal interest in?

A

Land itself including timber, water, and minerals

26
Q

How do you prove Aboriginal title?

A
  1. Land must have been occupied prior to assertion of Crown sovereignty
  2. At sovereignty, occupation had to be exclusive
  3. Oral histories on equal footing with other historical evidence
27
Q

If title is established, what right does it confer?

A
  1. Land use decision-making
  2. Enjoyment and occupancy
  3. Possession of the land
  4. Economic benefits from the land
  5. Proactive use and management of the land
  6. Right to control the land means governments and other users must normally obtain consent
  7. Subject to limits and can be encroached by government
28
Q

Does the duty to consult and accommodate Aboriginal communities bind both the federal and provincial Crown legally?

A

yes, it is legally enforceable

29
Q

Can consultation requirements under treaties be different for different situations?

A

yes

30
Q

Even with extensive and relatively clear provisions about when consultation is required, can additional consultation still be necessary?

A

yes

Environmental Law (3 decks)

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