Chapter 3 - Environmental Law and Indigenous Peoples

Question 1

Define Indigenous Law:

Answer 1

The laws and law-making powers that Indigenous peoples have regardless of the Canadian legal system.

Question 2

Define Aboriginal Law:

Answer 2

The body of Canadian statue and common law that concerns issues related to Indigenous peoples in Canada.

Question 3

What three key things does Aboriginal Law encompass?

Answer 3

1. Treaties
2. Self-government agreements
3. Common law rights of Indigenous peoples

Question 4

What does it mean to be a Status Indian?

Answer 4

A First Nations person who is registered under the Indian Act on the Indian Register, which is maintained by Crown-Indigenous Relations and Norther Affairs Canada.

Question 5

What are Collective Rights?

Answer 5

Rights held by a group, as opposed to rights held by an individual.

Question 6

What is a Right?

Answer 6

The constitutionality protected ability to carry out an activity.

Question 7

What is a Title?

Answer 7

Ownership of land; it is the right to exclusive use and occupation of the land, and the right to choose the uses of the land.

Question 8

Define a Treaty:

Answer 8

A formal agreement between an Indigenous group and the provincial and federal governments regarding rights and title; treaties with Indigenous groups are considered unique are constitutionally protected.

Question 9

What is one of the key foundational documents for Aboriginal Law in Canada?

Answer 9

The Royal Proclamation 1763

Question 10

The federal government stated that “Indian lands” could only be surrendered to the Crown in order to avoid “_____________” by settlers

Answer 10

frauds and abuses

Question 11

What is the second key document in Aboriginal Law in Canada?

Answer 11

Constitution Act (1867)

Question 12

What does the Constitution Act (1867) set out?

Answer 12

I outlines the jurisdiction of the federal and provincial governments. Section 91(24) pro-vides that “Indians, and Lands reserved for the Indians” fall under federal jurisdiction.

Question 13

What is the third most important document in Aboriginal Law in Canada?

Answer 13

Constitution Act (1982), Section 35(1)

Question 14

What did the Constitution Act (1982, Section 35(1) set out?

Answer 14

Provides that the “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Question 15

Why is the Trans Mountain Pipeline an example of Aboriginal Law?

Answer 15

The Duty to Consult (Haida Nation v. BC)

Question 16

What are some of the key Federal Statutes?

Answer 16

• Indian Act
• First Nations Commercial and Industrial Development Act
• First Nations Land Management Act

Question 17

True or False: A modern treaty may have both a federal and a provincial statute giving it effect. Why?

Answer 17

True.
Because Provincial statutes have been used to outline processes and requirements for consultation with indigenous peoples.

Question 18

What is the Calder v. BC (1973) case an example of?

Answer 18

It brought the issue of land claims to the attention of governments and launched the federal treaty process to attempt to reach agreements between the federal and provincial governments and First Nations.

Question 19

What is the R vs. Sparrow (1990) an example of?

Answer 19

R v Sparrow10 was the first court decision to test the scope of section 35(1) of the Constitution Act.

Question 20

What is the Extinguishment of Aboriginal Title?

Answer 20

When Aboriginal title to land no longer exists.

Question 21

When does Extinguishment of Aboriginal Title occur?

Answer 21

• It can occur through surrender of the land to the Crown as part of a treaty or by a clear and competent legislative authority.
• Aboriginal title may be extinguished by the Crown when the intention of the Crown is clear and plain . The onus of proving extinguishment lies with the Crown.

Question 22

What is the “Sparrow Test”?

Answer 22

The court outlined a series of questions that must be addressed to determine whether a regulation infringes Aboriginal rights and whether the infringement can be justified

Question 23

What are the three questions laid out in the “Sparrow Test”?

Answer 23

1. Is there an existing Aboriginal right?
2. Does the proposed regulatory action interfere with the rights.. for certain reasons?
3. Does infringement of an existing Aboriginal right is justifiable.

Question 24

What are the two grounds for justification of rights?

Answer 24

1. Determining whether a valid legislative objective exists.
2. Whether the honour of the Crown has been upheld.

Question 25

Write out all features of the Sparrow Test:

Answer 25

1. Is there an existing Aboriginal right?
2. Is the proposed regulatory action an interference with the right because it’s:
   a. unreasonable
   b. imposes undue hardship, or
   c. denies holder of the right preferred means of exercising the right?
3. If the right exists and is infringed, can this be justified because:
   a. There is a valid legislative objective, and
   b. the honour of the Crown has been upheld?

Question 26

What is the significance of the Delgamuukw vs. BC (1997)?

Answer 26

It clarified what constitutes Aboriginal title.

Question 27

What case constituted Aboriginal Title?

Answer 27

the Delgamuukw vs. BC

Question 28

Aboriginal title is a legal interest in the land itself, including ____________, _____________ and _____________.

Answer 28

Timber, water, minerals

Question 29

Aboriginal title is not absolute, and may be infringed if justified under the ______________.

Answer 29

Sparrow test

Question 30

What three ways can Aboriginal title be proven?

Answer 30

1. Land must have been occupied prior to assertion of Crown sovereignty.
2. The occupation must have been exclusive
3. Occupation must have been continuous

Question 31

What is the Taku River Tlingit First Nation vs. BC (2004) an example of?

Answer 31

To help with understanding what constitutes adequate consultation.

Question 32

What did the Haida Nation vs. BC (2004) establish?

Answer 32

The Duty to Consult with the Duty to Accommodate

Question 33

Define Accommodation:

Answer 33

Measures taken to address concerns related to Aboriginal rights and title.

Question 34

What is the Tsilhqot’in Nation vs. BC (2014) an example of?

Answer 34

Logging companies logged on lands protected under a Land Claim agreement from 1983 - 2014.

Question 35

What court case solidified the Crowns obligations to consult with Indigenous people before passing laws?

Answer 35

Mikisew Cree First Nation v. Canada (2018)

Question 36

How many numbered treaties are there in Canada?

Answer 36

11

Question 37

When were the numbered treaties signed across Canada?

Answer 37

1871 - 1921

Question 38

Treaty 1 and 2 are in ______________.

Answer 38

Manitoba

Question 39

Treaty 3 is in _____________ and ____________.

Answer 39

Manitoba and Ontario

Question 40

When did the Canadian government give Royal Assent to the UNDRIP?

Answer 40

June 21, 2021: Bill C-262

Question 41

How many principles did the government of Canada set up to guide a respectful relationship with Indigenous peoples?

Answer 41

10

Question 42

The ____________ recognizes existing Aboriginal and Treaty rights.

Answer 42

Constitution (Section 35)

Question 43

The Crown is required to _______________ and _____________ with and for Indigenous peoples.

Answer 43

consultation and accommodation

Question 44

What did the Haida vs. BC case clarify?

Answer 44

That the obligation to consult rests with the Crown (not third parties) and exists even before title is proven

Question 45

What did the Tsilhqot’in Nation vs. BC clarify?

Answer 45

Where title is proven, it may only be impinged with the consent of the First Nation, or to meet a pressing and substantial public purpose .

Question 46

Treaties and the common law should be reviewed to determine the nature of ____________ required on a project .

Answer 46

consultation

Question 47

True or False: Older treaties are often more descriptive when discussing consultation.

Answer 47

False, they say very little of consultation.