Module 7 : Indigenous Law

Question 1

the constitutional rights of Aboriginal peoples are…

Answer 1

collective rights

Question 2

Treaty rights

Answer 2

Promises made by governments in treaty or formal agreement made with Indigenous Peoples in the past

Question 3

Aboriginal title law

Answer 3

the property rights of Indigenous peoples whom the government didn’t bother to negotiate a treaty with before settling on their land

Question 4

The Crown’s duty to consult Aboriginal groups

Answer 4

When they intend to do something that could infringe on those peoples rights

Question 5

Canada’s claim to sovereignty over aboriginal peoples

Answer 5

reflect on the legal issue of sovereignty on the basis for Canada’s claim to have the right to govern Indigenous peoples and to make laws that affect their traditional land

Question 6

Terra Nullius

Answer 6

• means a land of no-one
• but when Europeans arrived, Canada had people to thats a myth

Question 7

Canadian Law divides Aboriginal Peoples into 3 categories

Answer 7

1. Indian (first nations) - entitles to live on reserves & governed by the Indian Act
2. Metis - descended from communities created by intermarriage
3. inuit - Far north

Question 8

treaty rights

Origin of land treaties…

Answer 8

• Indigenous people’s rights to collectively determine the future of their lands was formally recognized in the Royal Proclamation of 1763
• it refers to Indgienous Peoples as Nations
• this prevented individuals from buying land directly from Indigenous peoples but if they dispose of the land it goes to the Crown ONLY

Question 9

treaty rights

Land treaties 1755-1923 followed the royal proclamation

Answer 9

• Treaty of Niagara 1764 (essentially same as ^^)
• then, representatives of the crown negotiated treaties across the country that allowed them to keep on doing thier lives normally
• BUT in Canadian history, the courts declined to recognize that those treaty promises had the effect of law

Question 10

treaty rights

Since the constitution act 1982, courts have ruled…

Answer 10

1. a treaty is any solemn agreement between the Crown & a first nation intended to bind future generations
2. the legal effect of a treaty is to override general laws
3. treaty terms must be interpreted generously
4. governments may nonetheless infringe treaty rights if they can prove that the infringement is justified because of a ‘compelling & substantial’ public purpose & that theier action is consistent with the honor of the Crown

Question 11

Treaty rights

Restoule v Canada Facts…

Answer 11

• 1850 Anishinaabe negotiated 2 treaties with the Crown
• Crown negotiator offered less money per acre than in previous treaties but agreed that annuity will be raised in the future if revenues from land permit
• but its stayed at 4$ per person since 1875 so in 2018 they sued the Crown claiming breach of its treaty promise

Question 12

Treaty rights

Legal issues that the courts had to address in Restoule v Canada

Answer 12

1. how to intepret the parties’ understanding, given the historical context & absence of evidence of oral promises during negotiation
2. does the crown have a legal obligation under the treaty to raise the annuity? (yes if economic circumstances warrant it)
3. If so ^, how should the new amount be determined?

Question 13

Treaty rights

legal prnciples set out by the court that apply to interpretation in Restoule v Canada

Answer 13

• goal of treaty interpretation is to find the parties’ common intention & see both sides’ perspectives
• crown must act honourably in interpreting & implementing treaties
• The crown has to live up to the purpose of the treaty
• ambiguities should be resolved in favour of the Aboriginal Peoples

Question 14

Aboriginal title (to their traditional lands)

Tsilhqot’in case facts

Answer 14

• tsilhqot’in people lived in BC for centuries
• British Crown asserted sovereignty over their territory in 1846 but Crown never entered a treaty to address their land rights
• BC government issued logging licenses on their territory without consent so they sued saying that still have title to 5% of their land
• so then the declaration of aboriginal title was granted (so they did have title to their land) so Crown must get future consent to logging or infringing their title rights

Question 15

Aboriginal title (to their traditional lands)

Tsilhqot’in, the test for proving aboriginal title

Answer 15

• in the absence of a treaty, an aboriginal group that proves it exclusively & sufficiently occupied a territory when Canada asserted sovereignity in the area holds aboriginal title to those lands
• when it comes to sufficient occupation… courts have to consider both comon law property concepts & aboriginal perspectives on territory & the character of the land & nature of Aboriginal society
• they have to prove they regularly used the land

Question 16

Aboriginal title (to their traditional lands)

what aboriginal title means

Answer 16

• aboriginal title is an ownership right (right to control use of land & enjoy its benefits)
• a collective right (for community to share)
• the land can only be sold to the Crown & must not be used in a way that prevents its enjoyment for future generations

Question 17

Aboriginal title (to their traditional lands)

When title can be infringed

Answer 17

• aboriginal title is a constitutionally-protected right, but it is not absolute… if a government seeks to regulate or use Aboriginal title lands & doesn’t obtain consent, it may still infringe the title if…
  1. it consulted with the aboriginal group
  2. it has a compelling and substantial objective &
  3. its action is consistent with the Crowns trust-like relationship with the Aboriginal group

Question 18

Aboriginal title (to their traditional lands)

After Tsilhqot’in…

Answer 18

• this 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
• this case ruled that for other groups until a court declation of title, or a new treaty, their aboriginal title is not recognized

Question 19

crown’s duty to consult

Haida nation v BC… facts

Answer 19

• Haida ppl lived on certain islands for centuries & have formally claimed title to them for over 100 yrs
• Crown declined to enter a treaty
• in 90s BS transferred old growth logging rights on the islands without getting consent so they sued claiming aboriginal title to their traditional lands
• the Haida ppls aboriginal title claim proceeds in the courts but the Crown has a duty to consult them about proposed forestry & other resource decisions affecting their lands

Question 20

Crown’s duty to consult

The duty to consult with Indigenous ppl arises…

Answer 20

1. when the crown knows of a potetional s. 35 right (including treaty rights & title rights)
2. and when the crown contemplates action that may interfere with that right

Question 21

Crown’s duty to consult

more…

Answer 21

• the extent of the consultation depends on the strength of the Aboriginal claim and the severity of the proposed interference
• good faith required on both sides, but crown ordinarily has no duty to obtain the consent of the group affected
• they have a right to be consulted byt do not have a veto over an interference with their rights

Question 22

Crown’s duty to consult

who does the duty to consult apply to

Answer 22

• federal & provincial governments & their ministers

Question 23

Crown’s duty to consult

After Haida

Answer 23

• Haida nation recognized for the first time an important procedural right for aboriginal peoples who object to government decisions affecting their rights

Question 24

Summary of the law so far

Answer 24

• in areas of Canada where treaties were signed, their promises are protected by s. 35 of the Constitution Act
• treaty disputes must be resolved by reference to the parties’ apparent common intent & the honour of the Crown
• In areas where no land treaty was signed, proof of exclusive occupation when sovereignty was asserted gives rise to aboriginal title, also protected by s. 35
• the crown may infringe s. 35 rights only if they can pass the 3-part test of constitutional justification
• whenever the Crown proposes to interfere with claimed s.35 rights it has a legal duty to consult the Aboriginal group affected

Question 25

Sovereignty

The problem…

Answer 25

• indigenous ppl were not consulted when Canada wrote its first constitution in 1867
• so that ^ (BNA act) gives the federal government primary jurisdiction over Indians and land reserved for the indians
• and they have used this jurisdiction to regulate almost every aspect of the Indigenous ppls lives
• when there was an opposition, the RCMP was sent in to evict traditional counsils from their homes
• even today the Canadian courts have rejected Indigenous ppls assertions of sovereignty (that they have the right to make laws for their own territories) and self-government

Question 26

Sovereignty

The legitimacy problem

Answer 26

• Canada’s sovereignty claim and its refusal to recognize Indigenous laws can only be based on a denial of the equality of peoples
• Canada’s claim is also difficult to reconcile with the federal policy recognizing the ‘inherent right’ of Aboriginal self-government
• and with Canada’s approval of the UN Declaration on the Rights of Indigenous Peoples, which affirms their right of self-determination