Indigenous Peoples and the Law Flashcards
Describe the components of section 35 Constitution Act 1982
s 35: “recognises and reaffirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada”
- it cannot be extinguished by legislation
- any ambiguous expression of a treaty or document must be resolved in favour of the Aboriginal peoples
What is the Sparrow test
A test from the case of R v Sparrow [1990] 1 SCR 1075 which is used to determine whether a state action is rendered unconstitutional for violating section 35 of the Constitution Act 1982
What are the questions within the Sparrow test
- Does the legislation interfere with an existing Aboriginal right?
(a) is the limitation unreasonable
(b) does the regulation impose undue hardship
(c) Does the regulation deny to the holders of the right their preferred means of exercising that right - Justification analysis (justifying infringing on an Aboriginal right)
(a) is there a valid legislative objective
(b) does it involve as little infringement as possible
(c) is fair compensation provided
(d) has the government consulted with the indigenous group
What is the Van der Peet test
A test recognised in R v Van der peet 1996
A test for identifying whether something constituted an Aboriginal right to gain constitutional protection
What is the main component of the Van der Peet test
In order to be an Aboriginal right an activity must be an element of practice, custom, or tradition integral to the distinctive culture of the Aboriginal group claiming the right
What is the Powley test
A test recognised in R v Powley 2003
A test to determine whether an individual is Metis for the purposes of asserting section 35 rights
What are the components of the Powley test
- Identify the alleged right
- Establish that there was a historic rights-bearing Metis community that was formed after contract but before effective European control in the area was “shared customs, traditions and collective identity”
- This historic community has continuity with a contemporary Metis community
What is “Honour of the Crown”
The duty to consult with potentially affected indigenous communities
Manitoba Metis Federation Inc v Canada (AG) 2013 SCC 14
Explains the concept of the crown - it arises from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people
Where did the Aboriginal title test come from
Tsilhqot’in Nation v British Columbia 2014 SCC 44
What is the Aboriginal title test
The test for proving Aboriginal title
1. Requirement of sufficient occupation of the land claimed to establish title at the time of assertion of European sovereignty
2. Requirement of continuity of occupation where present occupation is relied on
3. Requirement of exclusive historic occupation
What is section 91(24) Constitution Act 1887 (UK)
The federal government has exclusive authority over “Indians and lands reserved for Indians”
What is Bill C-15
Canadian domestic law - An act respecting the United Nations Declaration on the Rights of Indigenous Peoples
The Government must take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declarations on the Rights of Indigenous Peoples
What is Corrective Justice
Its a form of justice that aims to put the injured party in the position that he or she would have been in had the injustice not occurred
Three remedies through corrective justice
- The Land Transfer Solution - land must be returned where due, if not possible, then compensation should be paid
- The subsistence Theory - the right to access particular resources
- The Institutional Approach - the right of Indigenous Peoples to choose their form of governance through institutions
