LESSON #4: STATE CRIME & ABORIGINAL TITLE

Question 1

the leading case concerning Aboriginal title

Answer 1

St. Catherines Milling and Lumber Co. v. The Queen, decided in 1888

Question 2

St. Catherines Milling and Lumber Co. v. The Queen

(3)

Answer 2

(1) case was part of a dispute between Ontario and Canada over rights to land for timber.
(2) It asserted that land title in Canada remains with the Crown and that Aboriginal rights to the land are allowed only at the Crown’s pleasure and can be revoked by the Crown at any time. (3) An argument made by Ontario’s attorney general in this case disputed Indigenous land claims on the basis that the Indigenous peoples who entered into the various treaties were not nations

Question 3

Royal Proclamation

Answer 3

actually came to be included within the Canadian Charter of Rights and Freedoms under section 25

Question 4

Canadian Charter of Rights and Freedoms under section 25

Answer 4

Royal Proclamation

Question 5

When the Constitution Act was set for a redrafting in the 1980s, for example, Prime Minister Pierre Trudeau’s government had no plans to include Indigenous peoples.

Answer 5

In response, Indigenous peoples held protests in an effort to get their rights protected and enshrined in the Constitution. The result was section 35 of the Canadian Constitution Act of 1982

Question 6

There have been a series of court judgements dealing with Aboriginal rights and title. A notable one is the Supreme Court decision in 1973 referred to as

Answer 6

the Calder decision

Question 7

the Calder decision

(3)

Answer 7

(1) laid the foundation for “modern” land claims and the rectification of treaty breaches.
(2) It was the first court case to recognize Aboriginal title of the land at the Supreme Court level
(3) it is considered to have paved the way in Canada for acceptance of the idea that Aboriginal title pre-existed treaties and other colonial documents acknowledging it.

Question 8

One of the major cases dealing with Aboriginal rights is the 1990 Supreme Court case known as:

Answer 8

The Sparrow case

Question 9

the first case at the Supreme Court of Canada that tested section 35 of the Constitution Act of 1982

Answer 9

The Sparrow case

Question 10

R. v. Sparrow

(2)

Answer 10

(1) member of the Musqueam First Nation Ronald Sparrow was arrested and charged under the federal Fisheries Act for fishing with a drift net that was longer than was permitted by his licence.
(2) He did concede that the net was larger than was permitted by the food fishing licence; however, he argued that he was exercising an existing Aboriginal right to fish, so the restriction in the food fishing licence was void because it was inconsistent with section 35(1) of the Constitution Act, 1982.

Question 11

court ruled in favour of Sparrow

Answer 11

Sparrow was exercising his inherent Indigenous right to fish when he was arrested

Question 12

The court ruled in favour of Sparrow. The ruling by the court resulted in what’s known today as the:

Answer 12

(1) the “Sparrow test,” or the “justification of infringement test.”

Question 13

the “Sparrow test,” or the “justification of infringement test

Answer 13

This test sets out a list of conditions to determine whether a right exists. If a right is found to exist, it outlines how the government may be justified in breaching or limiting that right.

Question 14

A law or regulation might be infringing upon an Aboriginal right if:

(3)

Answer 14

*it is considered “unreasonable” by the court;

*it imposes an “undue hardship” on First Nations;

*it denies right holders their “preferred means of exercising that right

Question 15

Infringing upon an Aboriginal right may be justified if:

(4)

Answer 15

*there is “a valid legislative objective,” such as “conserving and managing a natural resource”;

*there is “as little infringement as possible in order to effect the desired result”;

*the situation is one of expropriation, and “fair compensation” is provided;

*the “aboriginal group in question has been consulted with respect to the conservation measures being implemented

Question 16

Another major case dealing with Aboriginal rights is the 1996

Answer 16

Van der Peet case.

Question 17

Van der Peet case

(2)

Answer 17

(1) was the first of three that became known as the “Van der Peet Trilogy
(2) also included the Gladstone and N.T.C. Smokehouse cases

Question 18

In R. v. Van der Peet

(2)

Answer 18

(1) member of the Stó:lo¯ First Nation Dorothy Van der Peet was charged with selling 10 salmon caught under a food fish licence, contrary to section 27(5) of the British Columbia Fishery (General) Regulations.
(2) he law prohibited the sale of the fish.

Question 19

Van der Peet did not win her case

Answer 19

the Court of Appeal’s ruling, which stipulated that, although fishing constitutes an Aboriginal right, the sale of fish for exchange of money or other goods does not.

Question 20

The “integral to a distinctive culture” test, otherwise known as the:

Answer 20

Van der Peet test

Question 21

Van der Peet test

Answer 21

test outlined 10 criteria that must be met in order for a practice to be affirmed and protected as an Aboriginal right under section 35 of the Constitution Act

Question 22

R. v. Gladstone

(4)

Answer 22

(1) court applied “Van der Peet test
(2) court decided that there was an Aboriginal right to exchange or trade herring spawn on kelp, according to the Van der Peet test
(3) Charges were dropped against the two Heiltsuk brothers William and Donald Gladstone, who had been accused of attempting to sell herring spawn on kelp without a J-licence,
(4) The Supreme Court recognized that they had an unextinguished Aboriginal right to sell herring spawn on kelp and that the J-licencing scheme infringed on their Aboriginal right.

Question 23

R. v. N.T.C. Smokehose Ltd

(3)

Answer 23

(1) members from the Sheshaht and Opetchesaht First Nations caught chinook salmon under the authority of food fishing licences.
(2) They then sold the surplus of their food fishing quotas to the First Nations–owned business N.T.C. Smokehouse Ltd, which then sold the salmon its employees caught to non-Aboriginal fish-processing companies.
(3) N.T.C. Smokehouse Ltd. was charged with the selling and purchasing of fish caught under the Indian food fish licence

Question 24

Applying the Van der Peet test in R. v. N.T.C. Smokehose Ltd

(3)

Answer 24

(1) the Supreme Court determined that the sale of fish did not form an “integral” part of the distinctive cultures of the Sheshaht and Opetchesaht peoples.
(2) Rather, the court declared that, prior to contact, the sale of fish among the Sheshaht and Opetchesaht peoples was “few and far between” and while “Potlatches and other ceremonial occasions may well be integral features of the Sheshaht and Opetchesaht cultures and, as such, recognized and affirmed as aboriginal rights . . . the exchange of fish incidental to these occasions is not, itself, a significantly central, or significant or defining feature of these societies.”
(3) Thus, the appeal was dismissed.

Question 25

Aboriginal Title: The Delgamuukw Decision

Answer 25

A foundational judgement regarding Aboriginal title that happened during the 1997 Supreme Court case

Question 26

What judgment arose from The Delgamuukw Decision?

Answer 26

confirmed that, when dealing with Crown land, the government must consult Aboriginal peoples and may have to compensate those of them whose rights might be affected.

Question 27

A notable aspect of The Delgamuukw Decision (2)

Answer 27

(1) was the court’s acknowledgement and acceptance of the oral histories of the Gitksan and Wet’suwet’en peoples as valid. (2) Chief Justice Lamer recognized that oral histories both exemplify historical knowledge and convey cultural values;

Question 28

In the Delgamuukw Decision what did The Gitksan and Wet’suwet’en both enter as evidence? (2)

Answer 28

(1) Their oral histories (2) which are referred to as the “adaawk” and “kungax

Question 29

adaawk (2)

Answer 29

(1) are the oral histories of the Gitksan houses. (2) Each house, or wilp, has its own set of sacred oral traditions, territories for which it is responsible, histories, and ancestors—all of which are recorded and reaffirmed in the adaawk

Question 30

kungax

Answer 30

is a spiritual song or dance tying the Wet’suwet’en people to their land

Question 31

To establish proof of Aboriginal title, Justice Lamer outlined three standards that had to be reached (4)

Answer 31

(1) were in addition to the 10 criteria previously listed in the Van der Peet test (2) the claimant had to demonstrate occupancy prior to Crown sovereignty being asserted. (3) had to demonstrate the continuity of present and pre-sovereignty occupation, thus, proving that present occupancy is rooted in the past. Continuity can be exhibited through either physical evidence, such as houses, cordoned-off fields, and consistent resource use, or through the continued use of Aboriginal laws governing the area. (4) the test must prove that the site of the land is solely occupied by the group making the claim to the territory

Question 32

Two Supreme Court of Canada cases, in particular, have transformed our understanding of treaty interpretation

Answer 32

(1) R. v. Sioui (1990) and (2) R. v. Marshall (1999)

Question 33

R. v. Sioui (1990) (2)

Answer 33

(1) tested whether the federal government could apply a narrow, literal interpretation to define what treaty obligations must be fulfilled today (2) The Supreme Court held that the treaty was still in effect, and it gave the brothers the right to carry on their customs in the park

Question 34

In the Sioui case, the Supreme Court laid out conditions for what? (2)

Answer 34

(1) the types of documents that could be considered treaties. (2) The decision also stressed that the courts must take a “liberal and generous” interpretation of treaties

Question 35

R. v. Marshall (1999) (2)

Answer 35

(1) The Supreme Court of Canada confirmed that Donald Marshall Jr. had a treaty right to catch and sell fish (2) This treaty right had its origins in the “peace and friendship” treaties signed in 1760 and 1761 between the Crown and the Mi’kmaq and Maliseet peoples.

Question 36

the Marshall case recognized that: (2)

Answer 36

(1) the oral histories of Aboriginal peoples, which often record their understandings of treaties, must be accorded equal weight alongside written records. (2) certainly did tip the scale toward Indigenous understandings of treaties, given that each treaty was to be interpreted according to its intent and spirit rather than to be taken literally.

Question 37

The Marshall and the Sioui cases recognize that

Answer 37

Indigenous interpretations of treaties and of treaty rights deserve a place at the table.

Question 38

The rulings from R. v. Marshall (No 2) added

Answer 38

A “clarification” to the first Marshall decision, outlining that the Crown could limit the exercise of a treaty right if doing so “can be justified on conservation or other grounds.

Question 39

The Crown’s Fiduciary Duty (3)

Answer 39

(1) The Canadian government has a fiduciary duty that was agreed to in the treaties. (2) This “fiduciary duty requires the Crown to act honourably” due to its unique historical relationship with Aboriginal peoples. (3) This duty means that the Crown must not infringe on Aboriginal and treaty rights when passing laws.

Question 40

Some of the Supreme Court of Canada cases that have confirmed the Crown’s fiduciary duty to consult and accommodate Aboriginal peoples include: (4)

Answer 40

(1) Haida Nation v. British Columbia (Minister of Forests), (2) Taku River Tlingit First Nation v. British Columbia, (3) Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), and (4) Beckman v. Little Salmon/Carmacks First Nation

Question 41

Haida Nation v. British Columbia (Minister of Forests) (4)

Answer 41

(1) the Province of British Columbia issued a “Tree Farm License” (TFL) to a large forestry firm authorizing tree harvesting on the Haida people’s land (2) This TFL was renewed in 1981, 1995, and 2000. In 1999, it was transferred to a large forestry firm, Weyerhaeuser Co. No consent was obtained from the Haida Nation, nor was there consultation for any of these actions. (3) Haida Nation consequently challenged these renewed licences, as well as the transfer, because all these actions were taken without their consent and over their objections. (4) in a unanimous decision, Chief Justice McLachlin found that “the government has a legal duty to consult with the Haida people about the harvest of timber from Block 6, including decisions to transfer or replace Tree Farm Licences

Question 42

Taku River Tlingit First Nation v. British Columbia

Answer 42

(1) A mining company, Redfern Resources Ltd., had been trying to get permission from the BC government since 1994 to get an old mine reopened. (2) objected to the mining company’s plan to build this road, as a portion of it would cut right through the heart of TRTFN traditional territory

Question 43

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2)

Answer 43

(1) the federal government approved a winter road without consulting the First Nation (2) In a unanimous decision, the Supreme Court found that the federal government was required to consult with the Mikisew Cree First Nation in “taking up” lands for a winter road in its section of the Treaty 8 territory; the court decided that “the duty of consultation, which flows from the honour of the Crown, was breached.

Question 44

Legal observers declared this case the most significant Supreme Court case on Aboriginal rights in Canadian history

Answer 44

Tsilhqot’in Nation v. British Columbia

Question 45

Tsilhqot’in Nation v. British Columbia

Answer 45

The decision furthered strengthened claims to Aboriginal title and rights and raised the standard of consultation required of governments engaged in dealings with First Nation communities.

Question 46

The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. What If the Aboriginal group does not consent to the use?

Answer 46

the government’s only recourse is to establish that the proposed incursion on the land it justified under s. 35 of the Constitution Act, 1982.

Question 47

Grassy Narrows First Nation v. Ontario (2)

Answer 47

(1) treaty documents did not support the claims of the people of Grassy Narrows (2) In a unanimous decision, the Supreme Court determined that “Ontario has the power to take up lands in the Keewatin area under Treaty 3

Question 48

two foundational cases on Aboriginal “rights” in Canada

Answer 48

Sparrow and Van der Peet

Question 49

What did the Sparrow and Van der Peet cases result in? (2)

Answer 49

(1) both cases actually took rights away from Indigenous peoples rather than granting them. (2) defining a right in law simultaneously limits it

Question 50

The Van der Peet ruling was limiting because:

Answer 50

of its so-called “frozen rights approach,” which ties Aboriginal rights to traditional practices and does not recognize that Aboriginal rights might change over time.

Question 51

Van der Peet case also emphasized: (3)

Answer 51

(1) reconciling Aboriginal rights with Crown sovereignty. (2) It stressed that “the definition of an aboriginal right must, if it is truly to reconcile the prior occupation of Canadian territory by aboriginal peoples with the assertion of Crown sovereignty over that territory, take into account the aboriginal perspective, yet do so in terms which are cognizable to the non-aboriginal legal system. (3) Because of this emphasis on reconciliation, the fact of Crown sovereignty goes unchallenged, and the case fails to recognize inherent Indigenous rights and sovereignty.

Question 52

In his analysis of the Delgamuukw case, Anishinaabe law professor John Borrows argues

Answer 52

although it “somewhat positively changed the law to protect Aboriginal title, it has also simultaneously sustained a legal framework that undermines Aboriginal land rights.

Question 53

Tsilhqot’in decision

Answer 53

include greater security for First Nations future control and ownership of their traditional resources and lands, a stronger relationship between First Nations and the business community, and a move toward First Nations environmental laws serving as requirements for businesses to achieve a harmonious and long-term business relationship with First Nations.

Question 54

Oka Crisis

Answer 54

the Kanien’kéha:ka (or Mohawk) people of Kanehsatà:ke had to defend their sacred burial grounds and sacred pine trees from being taken over to allow for the extension of an 18-hole golf course

Question 55

large (5,120 square kilometres) mineral-rich region which is located in the James Bay lowlands of northern Ontario, where a major chromite mining and smelting development is being planned.

Answer 55

Ring of Fire

Question 56

Bill C-45

Answer 56

(1) Introduced by the House of Commons in Oct 2012

Question 57

What is Bill C-45 also known as?

Answer 57

the Jobs and Growth Act.

Question 58

The new Navigation Protection Act limits:

Answer 58

the ability of First Nations to protect their lands and the water running through those lands because private companies have no duty to consult and accommodate Indigenous peoples when development projects could adversely affect Indigenous peoples and communities.

Question 59

Two strong underlying motives of the Conservative government:

Answer 59

(1) an agenda that emphasized economic development (2) an awareness that Aboriginal treaty rights—which are constitutionally protected—are the last best protection safeguarding resources and lands not yet “developed

Question 60

Idle No More (2)

Answer 60

(1) was first conceived by four women in Saskatchewan—Sylvia McAdam, Sheelah McLean, Jessica Gordon, and Nina Wilson—when they began sharing their concerns about Bill C-45. (2) It turned into a global movement, expanding its focus beyond critiquing Bill C-45 and toward advocating for Indigenous human rights, for the equal treatment of Indigenous peoples, and for recognition of the treaty relationship.

Question 61

Indigenous Law

Answer 61

is in reference to Indigenous peoples own laws and legal systems

Question 62

Aboriginal law

Answer 62

is in reference to the Canadian legal system and the body of law within it that pertains to Indigenous peoples.

Question 63

Who was the first status “Indian” to be elected to a Canadian legislature?

Answer 63

B.C. cabinet minister and Nisga'a chief Frank Arthur Calder

Question 64

In whose favour did the court rule in the Calder case?

Answer 64

court ultimately ruled against the Nisga'a

Question 65

Which case is considered to be the case which tested the scope of Section 35(1) of the Constitution Act, 1982?

Answer 65

R. v. Sparrow (1990)

Question 66

What was Ronald Edward Sparrow charged with, what did he argue, and what was the outcome of his case?

Answer 66

(1) charged with violating fisheries regulations when he used a net that was longer than his fishing licence allowed. (2) argued that his right to fish with the net was an existing aboriginal right protected by Sec. 35 (1) of the Constitution Act. (3) The court agreed but stipulated that the right is not absolute and can be, in certain circumstances, infringed upon.

Question 67

Which case gave a detailed interpretation of what constitutes Aboriginal title?

Answer 67

Delgamuukw v. British Columbia (1997)

Question 68

What ruling was considered to be a key test of Native fishing rights?

Answer 68

R. v. Marshall (1999)

Question 69

Who was wrongfully convicted and ultimately acquitted of murder?

Answer 69

Donald Marshall Jr., a Mi'kmaq man from Nova Scotia

Question 70

Which case involved challenging the Indian Act provision that denied band members who lived off reserve the right to vote in band elections?

Answer 70

Corbiere v. Canada (1999)

Question 71

What was the outcome of the McIvor v. Canada (2009) case?

Answer 71

The appeal court ruled in the plaintiffs' favour and ordered the government to amend the legislation within a year.

Question 72

What did the missionaries tell the Nisga’a peoples to do to their regalia and totem poles?

Answer 72

They had to burn their regalia in order to get into heaven and cut down and burn their totem poles.

Question 73

According to Dr. Frank Calder, what was “the birth of the British Columbia land question”?

Answer 73

Get off my land to the surveyors.

Question 74

What were some of the obstacles the Nisga’a peoples faced in retaining Aboriginal title to their land? (2)

Answer 74

(1) The bureaucracy of England determined the matter must first be dealt with by a Canadian court. (2) Pm Pierre Trudeau who denied land claims.

Question 75

What role did Frank Calder play in this legal journey for Nisga’a peoples? (4)

Answer 75

(1) Visited Lawyer Tom Berger and made it clear they wanted to sue the province that their aboriginal title still existed. (2) Led people into court cases (3) led negotiations in Ottawa with PM Trudeau following SC judgment

Question 76

What did the Supreme Court judges say in regards to whether Nisga’a peoples had Aboriginal title? (2)

Answer 76

(1) 3 judges said rights were extinguished and 3 said no, they still exist today. (2) they lost but they had opened up the question of Aboriginal title

Question 77

What role did “laughter” play in negotiations?

Answer 77

Let off steam and let bad feelings go so they were able to return to the task at hand.

Question 78

What did Governor General Adrienne Clarkson say and do during her official visit to Nisga’a territory?

Answer 78

(1) Stated they were the original people who have been there since time immemorial. Negotiations can only happen between people who are equal and can trust each other. The people have taught them mutual trust. (2) She visited all 4 villages in the valley meeting and talking with chiefs, children and citizens and enjoying drumming and dancing.

Question 79

What were some of the community benefits resultant from the Nisga’a Treaty? (8)

Answer 79

(1) There is growing prosperity (2) encouragement of local entrepreneurs (3) equality and equal opportunities (4) have resources, land, money (5) laws open up the doors for development (6) drive for education (7) economic development (8) up to date technologies in use for careful management of the stocks

Question 80

How did relations with neighbouring non-Nisga’a peoples change after the Treaty?

Answer 80

They improved and there were less hassles because there is an understanding

Question 81

Why were the Norwegian government officials interested in the Nisga’a Treaty operations? (2)

Answer 81

(1) Last year the government passed a bill for the Sami people who were traditional reindeer herders and fishermen. (2) The Norwegian gov't want to give more rights to Sami people and are looking at how Canada has accomplished this.

Question 82

Now that you know more about the B.C Treaty Process, what is the position taken by the Union of British Columbia Indian Chiefs (UBCIC) in regards to this process?

Answer 82

UBCIC feels that having such a process in place is demonstrative of the Canadian colonial government not dealing with the land question in an way that is honourable

Question 83

What has been a vital means of attaining political and social justice for many Indigenous peoples for quite some time when conventional; routes are hindered?

Answer 83

Collective action

Question 84

Collective Action at Elsipogtog (3)

Answer 84

(1) resistance to the shale gas exploration on Elsipogtog First Nation lands (north of Moncton, New Brunswick). (2) This is a community which never gave up their inherent rights to their homelands. (3) So in 2013, they formed a blockade and camp to protect their lands and water against gas exploration by a Texas-based corporation, Southwestern Energy Company (SWN) Resources who planned to conduct hydraulic fracturing (or “fracking”) on their unceded lands.

Question 85

From 1927 to 1951, what was it was illegal under the Indian Act for “Indians” to do?

Answer 85

raise money to advance land claims.

Question 86

the 1973 Calder decision—confirming that Aboriginal historic occupation of land conveyed rights despite European settlement—the federal government declared its new policy for negotiating Aboriginal land claims. In order to put this policy into motion, in 1974, the government created:

Answer 86

a special office within the federal Department of Indian and Northern Affairs (DIAND) called the Office of Native Claims (ONC)

Question 87

Through this office, Indigenous peoples could make two different types of claims: specific claims and comprehensive claims.

Answer 87

Office of Native Claims (ONC)

Question 87

After the “Oka Crisis” in 1990, Prime Minister Mulroney set up the:

Answer 87

Indian Claims Commission (ICC)

Question 87

Indian Claims Commission (ICC) (2)

Answer 87

(1) Its mandate was to review claims independently and provide mediation and facilitation services to help First Nations reach a settlement (2) could only provide suggestions and advice, as it had no powers to make decisions that would be legally binding.

Question 87

Specific claims

Answer 87

were those arising from unfulfilled treaty obligations.

Question 87

Comprehensive claims

Answer 87

were those involving land never ceded by a treaty

Question 88

Specific Claims Tribunal Act

Answer 88

Came into effect in October 2008 and created The Specific Claims Tribunal

Question 89

Specific Claims Tribunal (2)

Answer 89

(1) is a joint initiative between the federal government and the Assembly of First Nations; (2) its purpose is to hear and resolve specific claims, those relating “to the non-­fulfilment of an historic treaty or the mismanagement of First Nation land or other assets

Question 90

Why did the government feel the need to create the Specific Claims Tribunal? (2)

Answer 90

(1) felt something had to be done to address the hundreds of unsettled claims relating to Canada’s failure to fulfil its treaty obligations. (2) The tribunal was also set up as means of speeding up the specific claims process in order to provide “certainty” in relation to Indigenous territory.

Question 90

The Specific Claims Tribunal is comprised of:

Answer 90

is comprised of up to six judges who are appointed from the existing bench of superior court judges in the provinces

Question 91

report to the prime minister by Douglas R. Eyford

Answer 91

entitled Forging Partnerships, Building Relationships: Aboriginal Canadians and Energy Development

Question 92

The first “modern,” comprehensive land claim settlement was

Answer 92

the James Bay and Northern Québec Agreement signed in 1975

Question 93

the James Bay and Northern Québec Agreement

Answer 93

The Québec and federal governments wanted the surrender of Aboriginal title to northern Québec so a major hydroelectric development could go forward

Question 94

Justice A. C. Hamilton concluded in a 1995 report entitled: (2)

Answer 94

(1) Canada and Aboriginal Peoples that, frequently, Indigenous negotiators signed modern treaties under duress (2) Many signed because they needed the funding and other benefits for their impoverished people.

Question 95

Canada’s first “modern” treaty but also as the first modern treaty to be broken

Answer 95

the James Bay and Northern Québec Agreement

Question 96

Only 10 years after signing the treaty OF the James Bay and Northern Québec Agreement:

Answer 96

Cree people presented the government with a list of 65 broken promises

Question 97

the first urban agreement signed in British Columbia

Answer 97

Tsawwassen Final Agreement