Indigenous Peoples Flashcards
What is the root of the Indigenous right to title, according to the majority in Calder?
the right to title is in the historic occupation and possession of lands
In which case did the SCC recognize that there was a common law Aboriginal right to land that exists independent of any treaty or legislation?
Calder
Importance of Calder?
The first SCC case that recognized there in a common law Aboriginal right to land that exists independent of any treaty or legislation
What is the nature of the Aboriginal people’s interest in the land?
it is sui generis
What makes the Aboriginal interest in land unique?
Calder:
- usufructuary in nature
- inalienable, except to the Crown
- extinguishable only by legislation
Guerin:
- when surrendered, there is a fiduciary duty on the part of the Crown
Delgamuukw
- inalienability
- source: aboriginal title arises from prior occupation of Canada by aboriginal peoples
- communal: collective right held by all members of the aboriginal group
Importance of Guerin?
(golf club)
establishes that the Crown owes a fiduciary duty to the Aboriginal people in the context of title claims
What is the content of Aboriginal title (according to Delgamuukw)?
1) encompasses the right to exclusive use and occupation of the land for various purposes
2) lands held pursuant to title cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to the land
What is required for proof of Aboriginal title?
Delgamuukw:
1) sufficient pre-sovereignty occupation (regular use)
2) continuous occupation (no need for unbroken chain)
3) exclusive historic occupation (intention to exclude others)
Importance of Delgamuukw?
(ownership of land)
Outlines the requirements for Aboriginal title and the test for justification of infringement of title
the time period at which title is assessed is not contact, but sovereignty - because Aboriginal title is a burden on the Crown’s underlying title which only came about at sovereignty
What is required to justify infringement of Aboriginal title?
1) is there a valid legislative objective (list of things that allow infringement)
2) did the Crown act in accordance with its fiduciary duty
True or False: Aboriginal title is assessed based on occupation in the pre-contact period?
False, sovereignty is used as the marker.
Because Aboriginal title is a burden on the Crown’s underlying title which only came about at sovereignty
Importance of Marshall/Bernard?
Majority said that the Aboriginal activities needed to be “sufficiently regular and exclusive” to claim title
This was largely reversed by Tsilhqot’in
Importance of Tsilhqot’in?
(hunting/fishing)
Specified the requirements of sufficient, continuous, and exclusive possession - incorporating semi-nomadic groups:
sufficient - nomadic and semi-nomadic groups can establish title if they meet the Delgamuukw standard of “regular use”
continuous - not unbroken chain
exclusive - intention and capacity to retain exclusive control
How is Aboriginal title the same or different from fee simple title?
Aboriginal title confers rights similar to fee simple, bu is restricted in that it is a collective title held for future generations - cannot be used in ways that would prevent future generations from enjoying it (Tsilqhot’in)
What are valid reasons to infringe Ab title?
Development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of BC, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims”
