Chapter 3 - Indigenous Peoples Flashcards
What is UNDRIP?
United Nations Declaration on the Rights of Indigenous Peoples,
which includes the right of Indigenous peoples to maintain and strengthen their legal institutions.
Describe Aboriginal Law
As a sub-area of Canadian Public Law, it involves rights , land claims and other legal issues concerning indigenous Peoples in Canada
What is Indigenous Law?
It is the Law of Indigenous peoples themselves - as distinct from states laws in relation to them.
Indigenous legal traditions predate the arrival of Europeans in Canada.
How do you Define the Metis?
Metis has been used to describe persons of mixed Indigenous and European ancestry. (meaning is contentious)
Describe the Concept of Terra Nullius
considered a principle of international law, where it rests on the assumption that the land is unoccupied, deemed to be unoccupied or is not owned - and Indigenous people don’t have ownership rights.
principle argument being that the land is underutilized.
What is Canada’s Experience with Tera Nullius
It was never formally recognized as part of our law.
SCC confirmed that it never applied in Canada, going all the way back to Royal Proclamation of 1763.
Describe the Doctrine of Continuity:
Existing laws and customs of colonized peoples, no matter how their lands have been acquired, remain in effect until taken away by British or Colonial Law.
SCC - this applies to Indigenous peoples, but in somewhat restricted form.
Where the SCC asserted that Indigenous laws and interest were presumed to survive sovereignty and absorbed into common law as rights unless what 3 things happened?
1) They were incompatible with the Crown’s assertion of Sovereignty.
2) they were surrendered voluntarily via the treaty process
3) the gov. extinguished them
How does Call to Action 45 - in TRC strengthen Indigenous Legal Traditions
2 Committments:
- Adopt UNDRIP as framework
- Recognize Indigenous Law & Legal traditions in negotiation and processes involving treaties, land claims and other constructive agreements.
Why did Canada at first vote against adopting UNDRIP?
There were concerns and conflicts with existing Canadian Laws. It would require changes to the Canadian Legal System.
Is Indigenous Law - True Law?
No it is not.
There are hundreds of Indigenous commmunities in Canada and no single indigenous legal tradition. It was not written down.
What are 5 Sources of Indigenous Law
- Devine or Sacred
- Naturalistic
- Positivistic
- Customary Practice
- Deliberative Law.
What are 3 key areas of Indigenous Treaties?
- Surrender of Lands
- User of Resources
- Hunting and Fishing Rights
Under Canadian Law - what is the Basis for recognizing Aboriginal rights?
Constitution Act fo 1982 - Canadian Charter of Rights and Freedoms
it recognizes and affirms Aboriginal rights, treaties, including land claim agreements.
How did the Powley Case affirm Aboriginal Rights?
Under a Hunting Claim - it established Metis had right to hunt but the defendant had to:
- Self Identify as Metis
- Have Ancestral connections with Metis communicity
- Be Accepted by modern commmunity
