indigenous law Flashcards
aboriginal rights
- constitutionally protected rights to carry out certain activities
aboriginal title
- ownership on land
- rights to choose uses of land
- within certain limits of law
- not irreconcilable with the nature of FN group’s attachment to land
indigenous law
- laws created by and applied within FN
- before european contact
aboriginal law
- canadian laws that deal with FN communities and individuals rights and titles
grand chief sylliboy
- 1928: charged with illegal trapping in CB
- defended treaty rights of 1752
- judge: guilty, treaties invalid
- 1985: SCC: sylliboy case relfets biases and prejudices of another era
how did sylliboy know about treaty rights
- passed on by word of mouth from gen to gen
- oral tradition
source of law: royal proclamation
- recognized indigenous people in British NA as belonging to nations
what is a nation
- living in a certain territory
- using resources in area
- own legal system
- having some say about people coming onto land
source of law: constitution act 1867
- FN fall under federal law ‘head of power’
source of law: constitution act 1982`
- existing aboriginal and treaty rights recognized and affirmed (s35)
- legal battles to determine what this actually means (case law defines s35)
UNDRIP
- canada adopted may 2016
- recognition that indigeous people have been alienated from use and management of natural resources on their lands
- created basis for co-management of resources
R v sparrow facts
- aboriginal rights not fixed in time, can evolve
- charged under fisheries actfor fishing with a net longer than regs allowed
R v sparrow SCC statement
- aboriginal rights are those of constitution act 1982
- aboriginal rights evolve over time, interpret with flexibility
- no infringement without justification (sparrow test)
- set framework for how govs can justify infringing rights with test
sparrow test part 1
is there an existing right?
- must not have been extinguished
- must be based on practice, custom, tradition integral to specific FN community
- must have some continuity from pre-european contact to present
how do rights get established?
- historians, archaeologists testify about practices and continuity
sparrow test part 2
does the regulatory action infringe on aboriginal right?
- how?
- unreasonable?
- cause undue hardship?
- deny preferred means of exercising right?
sparrow test part 3
infringement justifiable?
- valid legislative objective? (such as conservation or resource management)
- is honour of crown (honouring treaties) being upheld?
- may consider: issues of consultation, compensation, if infringing as little as possible
aboriginal title - delgamuukw v BC facts
- claim to large area of land
- court didnt make final decision - 1 judge didnt enter decisions and the others were split yes and no
delgamuukw v BC SCC statements (if title exists then:)
- sui generis (legally unique)
- exclusive use and occupation
- FN chooses use of land
- use cant be counter to FN attachemnt to land
- cant be sold or transferred to anyone but crown
- communal
- oral history given weight
Delgamuukw test for aboriginal title
- land occupied before sovereignty
- continuity between pre-sovereignty and modern times
- exclusive occupancy (but exclusivity could be shared with more than 1 FN)
- if succeeds, then title exists, if partially fails then less right than full title
assimilation vs sui generis
- justice lambert:
- concepts of common law/wester law are separeate from rights of aboriginal peoples (diff from other canadians)
- rights carry through today
- not only aboriginal title that is sui generis - all aboriginal rights are
sui generis
- continued existence of pre-canada indigenous legal regimes
- courts attempt to recognize rights and title as legally unique within constitution
haida v BC: duty to consult (SCC)
- gov has duty to consult, sometimes accomodate when infringe on right
- arises when gov knows of rights and considers infringing actions
- scope of duties is case by case
- agreement not required but must be meaningful and in good faith
- FN must participate, cant be unreasonable
- doesnt apply to industry - just gov issuing permits, intersection btwn gov, FN, indistry
Tsilhqot’in nation v BC
- SCC rules on FN title to specific land
- BC breached constitutional duty to consult
- semi nomadic FN (temp habitation) can establish title on land used regularly for activities provided they exercised some control and show continuity in occupation
- incursion on title land only with consent or if justified by public purpose and not at odds with govs duty to FN
- court allows some exception to rule, must be justified and minimized
Mi’kmaq natural resources approaches
- unregulated hunting of moose co-agreement created by communities with gov
- how communities can work with gov
Netukulimk:
- use and care of natural resources for well being of individuals and communities
- honouring past, current, future gens
Msit No’kmaq:
- all our relations
- spiritual link between Mi’kmaq and world around us
- based on respect for natural world
Etuaptmumk:
- 2 eyed seeing
- modern concept of bringing together western science and Mi’kmaq knowledge
Toqi’maliaptmu’k
- modern concept of co-management
- we will look after it together
clear cutting on crown lands in NB? NS?
- duty to consult
- title and rights
- significant impact on title and rights
