legal issues

Question 1

describe the content of section 35 of the consitution act of 1982

Answer 1

• neither confirms nor creates absolute aboriginal rights, it does confirm existing aboriginal or treaty rights that had not been extinguished by surrender or legislation by 1982
• ab. and treaty rights existing after proclamation of constitution act now receive significant legal protection under sec. 35
• existing ab. land rights cant be extinguished without consent of those ab peoples holding interest in those lands
• ab. consent may be required to give effect to legislation purpoting to extinguish ab. land rights, even if compensation is paid

Question 2

calder vs supreme court of canada-1973

Answer 2

• Nass Valley, Bc
• Nisga’a asked courts so support claim that ab. title never extinguished in nass valley
• supreme court ruled against based on technicality
• historic because it was the first time that supreme court rule ab. title was rooted in the long time occupation, possession and use of traditional territories
• afterwards, cdn gov’t agreed to begin negotiation with nisga’a and northern ab. peoples on treaties to define rights to lands and resources

Question 3

Guerin vs. supreme court of canada, 1984

Answer 3

• Musqueam first nation approved surrender ‘in trust’ of some lands to city of Vancouver, to lease to Shaughnessy golf and country club
• crown concluded a lease not based on terms previously agreed upon with band, true terms not disclosed until 1970
• judge extended Calder to describe ab. interest in land as “pre existing legal right not created by the royal proclamation..indian act..any other exec. order or legislative provision”
• court ruled gov’t had fiduciary responsibility(responsibility to safeguard aboriginal interests)
• awarded $10 million to musqueam
• significant because it recognized pre existing rights both on and off reserve

Question 4

Sparrow and supreme court, 1990

Answer 4

• appeal of fishing ruling with oversized net
• went to supreme court
• highly controversial to parts of cdn. public
• court defined protections under sec. 35 of constitution guaranteeing ab. rights
• gov’t can infringe on those rights, but must meet sparrow test
• sparrow test: must have legislative objective for infringement; must do least infringement possible (must consult meaningfully, must accomodate or compensate)
• 1st right to fish after conservation
• methods can evolve

Question 5

Delgamuukw 1984-1997, supreme court of canada

Answer 5

• several nations challenged through courts to have aboriginal land rights granted to them for their territories
• courts advised gov’t and first nations to negotiate rather than litigate
• oral histories were main form of evidence and gave precedence for non written history admission in court
• defined the exclusive and non exclusive use to ab. title