Session 3 - Part 1, Chapter 3 – Indigenous Peoples and the Law Flashcards
Understanding Legal Doctrine, International Law, and Indigenous Rights
Aboriginal Title
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.
Act of State Doctrine
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.
Calder Case (1973)
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.
Continuity, Doctrine of
A common law principle stating that existing laws and customs of colonized peoples remain in effect until expressly altered by the colonizing power.
Historic Treaties
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.
Comprehensive Land Claims
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.
Discovery, Doctrine of
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.
Honour of the Crown
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.
Indian Act (1876)
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.
Modern Treaties
Treaties negotiated between Indigenous groups and the Canadian government since 1973, recognizing Aboriginal rights, addressing land claims, and often including provisions for self-government.
Royal Proclamation of 1763
A British proclamation that recognized Indigenous rights to land and established a process for treaty-making between the Crown and Indigenous nations.
Sui Generis
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.
Tsilhqot’in Nation Case (2014)
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.
Terra Nullius
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.
UNDRIP
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.
Truth and Reconciliation Commission (TRC)
Established in Canada to investigate and address the legacy of the residential school system.
Indigenous Peoples
First Nations, Inuit, and Métis communities in Canada, each with their own unique histories, cultures, and legal traditions.
King George III
British monarch who issued the Royal Proclamation of 1763.
Royal Proclamation, 1763
This section analyzes the Royal Proclamation, its historical context, its impact on Indigenous land rights and sovereignty, and its enduring significance in Canadian law.
Post-Confederation Legislation and Policies
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.
Gayanashagowa
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.
key principles in indigenous law
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.
Métis Law of the Hunt
while partially codified, also incorporates customary rules, demonstrating the dynamic interplay between written and unwritten law within Indigenous legal systems.
adoption practices of the Carrier people
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.
