Final: Aboriginal Rights & Title

Question 1

Constitution Act of 1982 section 35, what did it do?

Answer 1

affirmed existing aboriginal rights.

Question 2

In terms of the Constitution Act in 1982, what was the view like initially from the government?

Answer 2

governments at first took a narrow view of this clause, arguing it only referred only to fishing, hunting and other traditional activities.

Question 3

1997 - Delgamuukw decision

What did it first start on?

What must governments do now?

Whats the legal vehicle?

Answer 3

First dispute over forestry, first nations didnt like how gov’t was allowing deforestation.

Governments must consult with, and may have to compensate, First Nations whose rights are affected by resource development.

Legal Vehicle: Rights and Title Legislations

Question 4

The Haida case (forestry in 1990s)

Significance?
What did it include?

Answer 4

• foundational in extending the government’s duty to consult.
• included the need to accommodate Aboriginal concerns.

Question 5

Taku case (1990s)
Why from courts perspective? 1

What does the duty to accommodate/consult include? (6)

Was the duty to accomodate/consult finalized in courts?

Answer 5

court’s view - to balance a fair process for aboriginal peoples with numerous public policy objectives

• Giving early notice about proposed action
• Engage in consultation in “good faith”
• Disclose information
• Allow a reasonable time for consultation
• Provide reasons
• Be responsive to issues raised

Not finalized in courts

Question 6

explain “Deep consultation”

When is it required? 2

Answer 6

explore ways of adjusting proposal to accommodate the Indigenous community’s reasonable concerns (environmental impacts, economic compensation, providing the Indigenous community with a decision-making role)

Required when:

1) Right is easily demonstrated.
2) Harm (ie. That endangers right) can be easily demonstrated