Aboriginal Rights Flashcards
What was van der peet?
saying that Aboriginal rights exist bc when Europeans arrived in North America,
Aboriginal peoples were already here, living in
communities on the land, and participating in distinctive
cultures, as they had done for centuries
importance of early treaties
guide us in how we approach legal relationships of Indigeneous and non-Indigenous peoples of Canada
connected to Britain, but run our own affairs
Canada is one of the oldest constitutional democracy in the world
represents supreme law of Canada with all of our laws flowing front
multi-juridical legal system
What is a multi-juridical legal system?
Canada has a multi-juridical legal system
- we embrace common law , civil law , and Indigenous legal traditions
- Section 35 of the Canadian Constitution Act 1982
how is our common law (which includes Aboriginal rights law) built?
based on precedence
build from arguments per case
series of arguments
Crown’s Fiduciary Duty to Aboriginal Peoples arising from Constitution different aspects and explanation for each:
Behaviour
- honourable , diligent , purposive
- lead to purposefully engage w Indigenous peoples
Obligations
- many obligations to FN
- stemming from a debt of gratitude to First Nations for sharing lands and resources
Conduct
- consultation, accommodation, and valid justification when infringement occurs
- making decisions on mines, forestry, etc
What is the “grand purpose” of section 35 of the Constitution Act of 1982?
supporting a relationship between Indigenous peoples and other Canadians in this matter
Differences between balance of evidence between the Crown and First Nations: (3 vs 5)
Crown:
- doctrine of discovery
- cultivation
- pristine wilderness
FN:
- Indigenous laws
- stewardship/tenure
- sovereignty
- management/governance
- processing/storage/trade
In order to be an aboriginal right an activity must be an element of a ________ , ________ or ________ integral to the distinctive culture of the aboriginal group claiming the right
practice, custom or tradition
Van der Peet - Distinctive Culture Test elements:
Precision
Centrality
Continuity
Specificity
Not Incidental
Distinctive
Rights arise from prior occupation
Aboriginal Perspective
Evidence
European Influence
Problems with Distinctive Culture Test elements:
incredibly detailed
How can ethnoecology and ethnobotany support title cases? (6)
cross-cultural
quantifiable
enduring
documented historically - archival references
linguistically traceable
refers to tangible entities (rooted in the ground) - reading forests
What’s wrong with resolving these issues through the courts?
put all knowledge into European framework
still in a power relationship
Indigenous involvement is limited - relies all on supreme court
Aboriginal law is strangely silent when it comes to deliberating on Indigenous rights to plants and, more importantly, management of the ecosystems and customary landscapes within which these plants reside.
Problems with Presenting Ethnobotanical Evidence:
- Women’s activities are under- represented in the ethnographic record.
- Specificity of evidence becomes destructive
- Skepticism re: oral evidence
- Freezes practices, traditions and
customs in time and Western concepts - Overlooks rights to self government
Other Problems?
- Why should First Nations have to prove their occupancy? Who cares about agriculture?
- How do questions of Indigenous law and sovereignty fit into this process?
- Legal process has eclipsed other avenues of resolution
- Politics of Distraction (Corntassel 2012)
- Legal process is hugely expensive
