Session 3 - Part 1, Chapter 3 – Indigenous Peoples and the Law

Question 1

Aboriginal Title

Answer 1

A unique legal right held by Indigenous peoples to land based on their historical and continuous occupation and use of that land since time immemorial.

Question 2

Act of State Doctrine

Answer 2

A legal principle stating that national courts should not intervene in matters involving the sovereign acts of a foreign state, potentially limiting Indigenous claims related to historical events.

Question 3

Calder Case (1973)

Answer 3

A landmark Supreme Court of Canada case that recognized the existence of Aboriginal title in Canadian law, paving the way for future land claims litigation.

Question 4

Continuity, Doctrine of

Answer 4

A common law principle stating that existing laws and customs of colonized peoples remain in effect until expressly altered by the colonizing power.

Question 5

Historic Treaties

Answer 5

Treaties signed between Indigenous peoples and the British Crown (later Canada) between 1701 and 1923, involving the exchange of Indigenous lands for reserve lands and other benefits.

Question 5

Comprehensive Land Claims

Answer 5

Modern-day treaty negotiations between Indigenous groups and the Canadian government to resolve outstanding land claims and self-governance issues in areas where Aboriginal title has not been extinguished.

Question 6

Discovery, Doctrine of

Answer 6

An international legal principle, originating from papal bulls, granting European nations the right to claim sovereignty over lands not inhabited by Christians, used to legitimize colonization.

Question 7

Honour of the Crown

Answer 7

A legal principle requiring the Crown to act honourably, fairly, and in good faith when dealing with Indigenous peoples, particularly concerning treaty rights and land claims.

Question 8

Indian Act (1876)

Answer 8

Canadian federal legislation that has historically governed the relationship between the government and Indigenous peoples, imposing a Eurocentric system and limiting self-governance. It is widely criticized for its assimilationist policies.

Question 9

Modern Treaties

Answer 9

Treaties negotiated between Indigenous groups and the Canadian government since 1973, recognizing Aboriginal rights, addressing land claims, and often including provisions for self-government.

Question 10

Royal Proclamation of 1763

Answer 10

A British proclamation that recognized Indigenous rights to land and established a process for treaty-making between the Crown and Indigenous nations.

Question 11

Sui Generis

Answer 11

A Latin term meaning “of its own kind” or “unique,” used to describe Aboriginal title and treaty rights as distinct from common law property rights.

Question 12

Tsilhqot’in Nation Case (2014)

Answer 12

A landmark Supreme Court of Canada case that confirmed Aboriginal title for the Tsilhqot’in Nation, setting a precedent for Indigenous land claims and clarifying the Crown’s duty to consult.

Question 13

Terra Nullius

Answer 13

A Latin phrase meaning “land belonging to no one,” used to justify colonization by claiming that the land was unoccupied or unowned, ignoring Indigenous presence.

Question 14

UNDRIP

Answer 14

The United Nations Declaration on the Rights of Indigenous Peoples (2007) outlines the rights of Indigenous peoples worldwide, including self-determination, cultural preservation, and land rights. Canada has committed to implementing UNDRIP.

Question 15

Truth and Reconciliation Commission (TRC)

Answer 15

Established in Canada to investigate and address the legacy of the residential school system.

Question 16

Indigenous Peoples

Answer 16

First Nations, Inuit, and Métis communities in Canada, each with their own unique histories, cultures, and legal traditions.

Question 17

King George III

Answer 17

British monarch who issued the Royal Proclamation of 1763.

Question 18

Royal Proclamation, 1763

Answer 18

This section analyzes the Royal Proclamation, its historical context, its impact on Indigenous land rights and sovereignty, and its enduring significance in Canadian law.

Question 19

Post-Confederation Legislation and Policies

Answer 19

This section examines key legislative and policy developments following Confederation, including the Indian Act, the residential school system, and legal challenges and reforms aimed at addressing their harmful impacts.

Question 20

Gayanashagowa

Answer 20

he Gayanashagowa, meaning “great binding law” in the Iroquois language, is the constitution of the Iroquois Confederacy.
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The Iroquois Confederacy, located south of Lake Ontario, was formed by five nations: the Mohawk, Seneca, Oneida, Onondaga, and Cayuga.

Question 21

key principles in indigenous law

Answer 21

Divine or Sacred Law: This source stems from beliefs about the Creator’s intentions, emphasizing a connection between spirituality and law. The Cree concept of “wahkohtowin”, meaning a general obligation to promote positive relationships, exemplifies this principle.
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Naturalistic Law: Rooted in observations of the spirit world and the physical environment, this source emphasizes the interconnectedness of humans and nature. The Mi’kmaq, for instance, derive legal principles from their ecological environment.
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Positivistic Law: Unlike the previous two sources, positivistic law is human-made and not necessarily connected to external moral systems. It can be formally proclaimed in settings like feast halls or council houses by designated authorities such as chiefs or clan mothers.
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Deliberative Law: This source emphasizes the process of developing law through councils, circles, and informal gatherings. While it can be seen as a method for creating positivistic law, it underscores the collaborative and dialogical nature of Indigenous legal traditions.
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Customary Law: While customary practices are part of Indigenous law, the sources caution against viewing Indigenous law as solely custom-based. Customary law plays a significant role and can supplement codified law, as seen in the Métis Law of the Hunt, which includes unwritten rules about the respectful killing and use of animals.

Question 22

Métis Law of the Hunt

Answer 22

while partially codified, also incorporates customary rules, demonstrating the dynamic interplay between written and unwritten law within Indigenous legal systems.

Question 23

adoption practices of the Carrier people

Answer 23

where grandparents are considered full parents, influenced a legal case in British Columbia, where the court recognized the grandparents’ claim for death benefits based on Carrier customary adoption law.

Question 24

define ceded land and territory

Answer 24

Ceded land and territory refers to Indigenous lands that have been formally surrendered to the Crown through treaties.
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This surrender was often in exchange for reserved lands, also known as reserves, and other benefits outlined in the treaty agreements.

The distinction between ceded and unceded land is central to understanding contemporary Indigenous land claims and self-governance aspirations.
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The Calder case in 1973 marked a turning point as the Supreme Court of Canada recognized Aboriginal rights to land, leading to the modern treaty period

Question 25

IRSSA

Answer 25

The IRSSA, which stands for Indian Residential Schools Settlement Agreement, represents a pivotal moment in addressing the legacy of the residential school system in Canada. The sources highlight this agreement as a culmination of a class action lawsuit against the federal government, seeking redress for the immense harm inflicted upon Indigenous peoples by these institutions.
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The IRSSA was established in 2006 as part of a settlement to compensate survivors of the residential school system.
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This system, authorized under the Indian Act, aimed to assimilate Indigenous children into Euro-Canadian culture, forcibly separating them from their families and traditions.