Module 10 Flashcards
What has been the historical relationship between Indigenous peoples and the Canadian state?
A long process of recognizing Aboriginal Rights, including military force, assimilation policies, and restrictions in the Indian Act.
When were First Nations allowed to vote in federal elections in Canada?
1960
What significant change occurred in the Indian Act in 1951?
Removal of the restriction prohibiting First Nations from initiating legal land claim action.
What did the Supreme Court ruling in the 1970s affirm regarding Aboriginal Rights?
It recognized the existence of Aboriginal Rights.
How are Aboriginal Rights generally defined today?
Inherent, collective rights that flow from original occupation of the land.
What is the key difference between ‘Aboriginal Rights’ and ‘special rights’?
‘Aboriginal Rights’ are based on prior occupancy, while ‘special rights’ are often seen as race-based extensions.
What does Section 35 of the Constitution of Canada recognize?
It recognizes and affirms existing Aboriginal and treaty rights.
What is the primary focus of Aboriginal Law?
The unique constitutional rights of Aboriginal peoples and their relationship with the Crown.
What constitutes Indigenous Law?
Legal orders rooted in Indigenous societies, including customs and teachings.
What was the significance of the St. Catherine’s Milling Case?
It articulated the existence of Aboriginal title stemming from the Royal Proclamation.
What was the outcome of the Calder case regarding Aboriginal title?
The court acknowledged that Aboriginal rights existed prior to European contact.
What was the technicality that led to the dismissal of the Calder case?
The case was dismissed due to a technicality, despite the court addressing the source of Aboriginal title.
What did the Van der Peet case involve?
A First Nations woman charged with selling salmon caught under a food-fishing license.
Fill in the blank: Aboriginal Rights are seen as _______ that flow from original occupation of the land.
[inherent, collective rights]
True or False: Aboriginal Rights are considered race-based rights.
False
What does the term ‘usufructuary’ refer to in the context of the St. Catherine’s Milling Case?
The right to use the land but not to own it in fee simple.
What was the effect of the White Paper on the recognition of Aboriginal Rights?
It led to increased pressure from Indigenous peoples for recognition of their rights.
What does Aboriginal Law largely consist of?
Court decisions, colonial instruments like the Indian Act, and sources of Indigenous law.
What did the Supreme Court decide regarding the Crown’s authority to extinguish Aboriginal Rights?
The Crown has the power to unilaterally extinguish those rights through legislation.
What was the significance of the first court case to recognize Aboriginal title in Canada?
It required Canada to implement a comprehensive claims policy and negotiate with Indigenous groups like the Nisga’a to extinguish their Aboriginal title.
Who was Dorothy Van der Peet?
A First Nations woman from the Stó:lō Nation charged with selling salmon caught under a food-fishing license.
What was the primary legal issue in the Van der Peet case?
Whether the right to sell fish caught for sustenance was protected under Section 35 of the Constitution Act.
What did the Supreme Court of Canada conclude regarding the sale of fish in the Van der Peet case?
The sale of fish did not qualify as an Aboriginal right, even though fishing was recognized as an existing right.
What is the ‘Van der Peet Test’?
A test to determine the existence of Aboriginal rights based on whether the right is integral to the culture of the claimant.
What are the criteria for the ‘Integral to a Distinctive Culture Test’?
Proof that the claimed right is integral to the culture of the claimant.
What was a major critique of the Van der Peet decision?
It circumscribes previous rulings on Aboriginal rights and requires proof of centrality to pre-colonial culture.
What issue does the Van der Peet Test raise regarding Indigenous cultural practices?
It freezes Indigenous culture to a specific point in time and ignores its dynamic nature.
What was the outcome of the Tsilqot’in Nation case in 2014?
The Tsilqot’in Nation was granted a declaration of Aboriginal title over their traditional territory.
What rights does the Tsilqot’in Nation have as a result of their title declaration?
Exclusive rights to decide land use and benefit from that use.
What does the Tsilqot’in ruling imply about economic development on their lands?
Economic development cannot occur without their consent.
What remains a concern regarding the Tsilqot’in ruling?
The underlying sovereignty of the Crown, which allows potential infringement on Aboriginal title.
Define Aboriginal rights in Canada.
Inherent rights held by Indigenous peoples due to their long-standing occupation of the land, protected under Section 35 of the Constitution.
What is the basis of Canada’s claim to sovereignty over Indigenous lands?
The Doctrine of Discovery and the principle of terra nullius.
What is the ‘Baker Lake Test’?
A set of four conditions established by the Supreme Court to demonstrate the legal existence of Aboriginal title.
List the four conditions of the Baker Lake Test.
- Membership in an organized society
- Occupation of specific territory
- Occupation to the exclusion of other societies
- Established fact at the time of asserted sovereignty.
What are Comprehensive Claims?
Claims where Indigenous people never extinguished their Aboriginal title through treaty.
What is a tripartite agreement in the context of Comprehensive Claims?
An agreement involving the First Nation, the federal government, and the provincial government.
What is the purpose of the Indian Claims Commission (ICC)?
To examine claims and advise on the best way for claims to be adjudicated.
What did the Calder decision establish?
That Aboriginal rights, including title to land, exist outside of any legislation.
What does Section 35 of the Canadian Constitution protect?
Aboriginal rights held by Indigenous peoples.
What are Specific Claims?
Claims based on non-fulfillment of a treaty or breach of statutory responsibilities.
What is the impact of Canada’s underlying sovereignty on Aboriginal rights?
It allows the government to limit or extinguish Aboriginal rights through legislation.
True or False: The Supreme Court has articulated a clear basis for Crown sovereignty over Indigenous lands.
False
What does the term ‘de facto control’ refer to in the context of Canadian law?
British Columbia’s historical and current control over Indigenous lands and resources without legal authority.
What type of agreements are modern-day treaties related to land claims?
Agreements that are protected by the Constitution and cannot be unilaterally changed.
What are the three primary land issues Indigenous people seek in negotiations?
- Maintain traditional hunting, fishing, and trapping lifestyles
- Significant role in management of natural resources
- Equitable portion of economic opportunities from traditional territories
What was the first modern Comprehensive Claim signed in Canada?
James Bay and Northern Quebec Agreement in 1975.
How many Comprehensive Claims agreements have been finalized since the James Bay Agreement?
25 more Comprehensive Claims agreements.
What is the role of the Office of Native Claims established in 1974?
To address the resolution of land claims.
What was the Delgamuukw Decision?
A Supreme Court decision recognizing the importance of oral history in court and reaffirming Aboriginal Title.
What did Justice Allan McEachern rule in the original Delgamuukw case?
That Aboriginal Title had been extinguished based on B.C.’s early Colonial Land Ordinances.
What key aspect did the Supreme Court affirm in the Delgamuukw Decision?
Oral history must be given the same weight as written history.
What does Aboriginal Title stem from according to the Delgamuukw Decision?
Prior occupation, not from Royal Proclamation.
What is the significance of UNDRIP in relation to Indigenous rights?
It declares and supports the collective rights of Indigenous peoples.
What does Article 32 (2) of UNDRIP state?
States shall consult and cooperate in good faith with Indigenous peoples to obtain their free and informed consent prior to project approval affecting their lands.
What was the response of Canada and other colonial countries to UNDRIP in 2007?
They voted no to adopting the Declaration.
What is the difference between Wet’suwet’en hereditary governance and Indian Act governance?
Hereditary governance predates colonization and is responsible for decisions about ancestral lands, while Indian Act governance is limited to reserve boundaries.
What was the outcome of the negotiations between the Wet’suwet’en hereditary Chiefs and the government?
An MOU was signed to recognize Aboriginal Title and governance over unceded Wet’suwet’en lands.
What is the current status of the Wet’suwet’en land claim?
They have not reached a formal land claim agreement recognizing their Aboriginal Title.
True or False: The B.C. government supports the Coastal GasLink pipeline project.
True.
What major concern did the Wet’suwet’en express regarding the Coastal GasLink pipeline?
Environmental concerns and impact on their ancestral lands.
Fill in the blank: The Delgamuukw case emphasized that Aboriginal rights are __________.
proprietary rights.
What did the B.C. Environmental Protection Office find regarding Coastal GasLink’s construction?
They found non-compliance orders and halted construction near protected wetland areas.
What is the significance of the term ‘unceded’ in relation to Wet’suwet’en territory?
It means their territory has not been formally surrendered or agreed upon by the government.
What is the significance of the Coastal GasLink pipeline situation?
It highlights the ongoing conflict over Indigenous land rights and the imposition of Canadian law on Indigenous peoples.
The situation is emblematic of a historical pattern of settlers taking Indigenous land without consent.
What are Specific Claims?
Claims initiated by First Nations against the government for breaching treaty requirements.
These typically arise from issues regarding reserve land.
What role does the Indian Act play in land claims?
It allowed for the alienation of reserve lands, leading to illegal or questionable land transfers.
Procedures were required to legally transfer land from reserve status.
When did the ability to engage in land claims emerge?
After the overhaul of the Indian Act in 1951.
This allowed First Nations to negotiate land claims formally.
What is the significance of the UNDRIP for Indigenous land rights?
It will impact economic development on Indigenous lands and requires free and informed consent from Indigenous peoples.
Its adoption could change the landscape of resource development in Canada.
Define Aboriginal Law.
The system of law in Canada dealing with the constitutional rights of Aboriginal peoples and their relationship with the Crown.
It includes colonial instruments and Indigenous law.
What are Aboriginal Rights?
Inherent rights of Indigenous peoples attributed to their long-standing occupation of the land.
These rights include title to land and self-determination.
What was the Calder Case about?
A land claims case involving the Nisga’a, which confirmed the existence of Aboriginal title.
It led to the establishment of a formal process for addressing comprehensive land claims.
What constitutes a Comprehensive Land Claim?
Claims arising where no treaties have been negotiated, indicating Aboriginal Title and Rights have not been extinguished.
These claims are based on historical occupation before formal treaties.
What is the Doctrine of Discovery?
A doctrine allowing European nations to claim ‘uninhabited lands’, based on old Christian ideology.
It includes the concept of ‘terra nullius’, asserting land was empty if Indigenous use did not align with European patterns.
Define Indigenous Law.
Legal traditions and imperatives arising from Indigenous societies, reflecting their worldviews and philosophies.
It is distinct from colonial legal systems.
What was the Integral to a Distinctive Culture Test?
A legal test from the Van der Peet decision determining the existence of Aboriginal rights based on cultural significance.
It requires proof that a right was integral to the culture of the claimant before European contact.
What is a Specific Land Claim?
A claim arising when the provisions of a settled treaty have not been implemented or fulfilled.
It addresses breaches of specific treaty agreements.
What was the outcome of the St. Catherine’s Milling Case?
It ruled that Indigenous peoples had usufructuary rights to the land, not full title.
This case influenced federal government policy for nearly a century.
What was significant about the Tsilqot’in Case?
It was the first case where an Indigenous group had their Aboriginal title declared in Canadian law.
The Tsilqot’in Nation proved exclusive rights to land use.
What does Usufructuary mean?
The right to use land without owning it outright.
This concept was solidified in the St. Catherine’s Milling case ruling.
