Indigenous Persons Law Flashcards
Significance of Royal Proclamation of 1763
It formally recognized Indigenous peoples’ right to collectively determine the future of their lands
Noted that Indigenous peoples shouldn’t be disturbed on their land unless they had formally agreed to share it with the new British government
Indigenous lands could only be sold to the Crown, not to individuals
s.35 of Constitution
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada
Define treaty
What is the legal effect of treaties
How should treaties be interpreted (high level overview)
When is the government allowed to infringe on treaty rights
Any solemn agreement between the Crown and a First Nation intended to bind future generations
Treaties are intended to override general laws
Treaty promises should be interpreted generously, as they likely favoured the Crown when they were written and didn’t include any oral agreements
Crown may infringe on treaty rights if they can justify it due to a ‘substantive and compelling’ public purpose and that their actions are consistent with the honour of the Crown
Restoule v. Canada 2018
Relating to treaty interpretation
In 1850 under the Robinson treaty in return for ceding a large amount of land to the Crown, the Anishinaabe would be given an annuity of $4 per person and would increase if resource revenue permitted → however, the annuity has not been increased since 1875
Anishinaabe filed a suit claiming that the Crown had breached the treaty
Court held that the Crown has an obligation to increase the annuity when economic circumstances warrant, and Ontario must enter into negotiations with the Anishinaabe to determine increase amount
Principles of treaty interpretation (9)
- Goal of treaty interpretation is to find the parties’ common intention looking at both sides’ perspectives (not just written words of treaty document)
- Crown must act honourably in interpreting and implementing treaties
- Honour of the Crown requires that it live up to the purpose of the treaty (to reflect the value of the territories covered by the treaty)
- Ambiguities should be resolved in favour of the Aboriginal people
- In searching for the common intention of the parties, the integrity and honour of the Crown is presumed
- Court must be sensitive to cultural and linguistic differences between the parties
- Words of the treaty must be given the meaning they would have held when treaty was signed
- technical/contractual interpretation of treaty language should be avoided
- Treaty rights of Aboriginal people must not be interpreted in a static way → need to determine what modern practices now fall under the scope of the core treaty right
Define aboriginal title
Is the right to collectively control the use of the land and enjoy its benefits Land can only be sold to the Crown and it must not be used in a way that prevents its enjoyment for future generations
Test for proving aboriginal title and aboriginal occupation (3 parts)
In the absence of a treaty, and aboriginal group that proves it exclusively and sufficiently occupied a territory when Canada asserted sovereignty in the area holds aboriginal title to those lands
Sufficiency: aboriginal group must show that it historically acted in a way that would communicate to other parties that it held the land for its own purposes
- courts must also consider aboriginal laws/customs on use of territory –> nature of the aboriginal society
Continuity: must prove that present occupation is rooted in pre sovereignty times
Exclusivity of occupation: specific aboriginal group must have had intent and capacity to retain exclusive control of the land
When aboriginal title can be infringed (3 part test)
If a federal or provincial government seeks to use aboriginal title lands and it doesn’t obtain the aboriginal group’s consent, it may still infringe the title if
- it consulted with the group
- it has a compelling and substantial objective
- its action is consistent with the Crown’s trust like relationship with the aboriginal group
If land title is unproven, Crown has duty to consult with the group and accommodate their interests if appropriate
If land title is proven, Crown has duty to consult as well as ensure their proposed actions are consistent with s.35
Tsilhqot’in v. British Columbia 2014
British asserted sovereignty over BC in 1846, but never entered into a treaty with Tsilhqot’in people that lived their → Tsilhqot’in sued for a declaration that they still have title to 5% of their traditional land after BC government issued logging licenses their without their consent
SSC held that Tsilhqot’in had the aboriginal title to the land, Crown must obtain their consent for future logging or constitutionally justify infringement of their title rights
To date, Tsilhqot’in is the only aboriginal title case to have been decided by the courts
Only a handful of title claims have been resolved in BC through negotiation of new treaties
Tsilhqot’in ruled that for other groups, until they obtain a court declaration of title or a new treaty, their aboriginal title is not recognized
When duty to consult arises and how it should occur
Duty to consult arises when Crown knows of a proposed government action that may affect s.35 rights
Extend of consultations depend on strength of Aboriginal title claim and severity of proposed interference
Crown has duty to deal honourably and in good faith with aboriginal peoples
Crown isn’t obligated to obtain consent of Aboriginal group affected (consultation doesn’t have to lead to agreement)
Haida Nation v. British Columbia 2004
Haida people had formally claimed title to Haida Gwaii islands for over 100 years, Haida nation sued to claim aboriginal title after BC transferred logging rights in that area without seeking their consent
SSC held that while Haida people’s aboriginal title claim proceeds in the courts, Crown has a legal duty to consult them about resource decisions affecting their traditional lands
For the first time recognized the procedural right for Aboriginal people to object to government decisions affecting their rights
History of Aboriginal sovereignty
Terra nullis
John Borrows
Indigenous people were not consulted when Canada wrote its constitution in 1867
BNA gave the federal government legal jurisdiction over aboriginal peoples
Historically federal government has limited aboriginal government’s powers and aboriginal lives on reserves
To date, courts have consistently rejected Indigenous people’s assertions of sovereignty
Problem of legitimacy arises when asking how Canadian government because sovereign over Indigenous peoples –> just by asserting that they had this right?
If courts have stated that doctrine of terra nullius (land belonging to no one) never applied in Canada, how did Canada acquire sovereignty over Indigenous people and land?
John Borrows: Canada’s sovereignty claim and refusal to recognize Indigenous laws can only be based on a denial of the equality of peoples
