indigenous law

Question 1

aboriginal rights

Answer 1

• constitutionally protected rights to carry out certain activities

Question 2

aboriginal title

Answer 2

• ownership on land
• rights to choose uses of land
• within certain limits of law
• not irreconcilable with the nature of FN group’s attachment to land

Question 3

indigenous law

Answer 3

• laws created by and applied within FN

- before european contact

Question 4

aboriginal law

Answer 4

• canadian laws that deal with FN communities and individuals rights and titles

Question 5

grand chief sylliboy

Answer 5

• 1928: charged with illegal trapping in CB
• defended treaty rights of 1752
• judge: guilty, treaties invalid
• 1985: SCC: sylliboy case relfets biases and prejudices of another era

Question 6

how did sylliboy know about treaty rights

Answer 6

• passed on by word of mouth from gen to gen

- oral tradition

Question 7

source of law: royal proclamation

Answer 7

• recognized indigenous people in British NA as belonging to nations

Question 8

what is a nation

Answer 8

• living in a certain territory
• using resources in area
• own legal system
• having some say about people coming onto land

Question 9

source of law: constitution act 1867

Answer 9

• FN fall under federal law ‘head of power’

Question 10

source of law: constitution act 1982`

Answer 10

• existing aboriginal and treaty rights recognized and affirmed (s35)
• legal battles to determine what this actually means (case law defines s35)

Question 11

UNDRIP

Answer 11

• canada adopted may 2016
• recognition that indigeous people have been alienated from use and management of natural resources on their lands
• created basis for co-management of resources

Question 12

R v sparrow facts

Answer 12

• aboriginal rights not fixed in time, can evolve

- charged under fisheries actfor fishing with a net longer than regs allowed

Question 13

R v sparrow SCC statement

Answer 13

• aboriginal rights are those of constitution act 1982
• aboriginal rights evolve over time, interpret with flexibility
• no infringement without justification (sparrow test)
• set framework for how govs can justify infringing rights with test

Question 14

sparrow test part 1

Answer 14

is there an existing right?

• must not have been extinguished
• must be based on practice, custom, tradition integral to specific FN community
• must have some continuity from pre-european contact to present

Question 15

how do rights get established?

Answer 15

• historians, archaeologists testify about practices and continuity

Question 16

sparrow test part 2

Answer 16

does the regulatory action infringe on aboriginal right?

• how?
• unreasonable?
• cause undue hardship?
• deny preferred means of exercising right?

Question 17

sparrow test part 3

Answer 17

infringement justifiable?

• valid legislative objective? (such as conservation or resource management)
• is honour of crown (honouring treaties) being upheld?
• may consider: issues of consultation, compensation, if infringing as little as possible

Question 18

aboriginal title - delgamuukw v BC facts

Answer 18

• claim to large area of land

- court didnt make final decision - 1 judge didnt enter decisions and the others were split yes and no

Question 19

delgamuukw v BC SCC statements (if title exists then:)

Answer 19

• sui generis (legally unique)
• exclusive use and occupation
• FN chooses use of land
• use cant be counter to FN attachemnt to land
• cant be sold or transferred to anyone but crown
• communal
• oral history given weight

Question 20

Delgamuukw test for aboriginal title

Answer 20

• land occupied before sovereignty
• continuity between pre-sovereignty and modern times
• exclusive occupancy (but exclusivity could be shared with more than 1 FN)
• if succeeds, then title exists, if partially fails then less right than full title

Question 21

assimilation vs sui generis

Answer 21

• justice lambert:
• concepts of common law/wester law are separeate from rights of aboriginal peoples (diff from other canadians)
• rights carry through today
• not only aboriginal title that is sui generis - all aboriginal rights are

Question 22

sui generis

Answer 22

• continued existence of pre-canada indigenous legal regimes

- courts attempt to recognize rights and title as legally unique within constitution

Question 23

haida v BC: duty to consult (SCC)

Answer 23

• gov has duty to consult, sometimes accomodate when infringe on right
• arises when gov knows of rights and considers infringing actions
• scope of duties is case by case
• agreement not required but must be meaningful and in good faith
• FN must participate, cant be unreasonable
• doesnt apply to industry - just gov issuing permits, intersection btwn gov, FN, indistry

Question 24

Tsilhqot’in nation v BC

Answer 24

• SCC rules on FN title to specific land
• BC breached constitutional duty to consult
• semi nomadic FN (temp habitation) can establish title on land used regularly for activities provided they exercised some control and show continuity in occupation
• incursion on title land only with consent or if justified by public purpose and not at odds with govs duty to FN
• court allows some exception to rule, must be justified and minimized

Question 25

Mi’kmaq natural resources approaches

Answer 25

• unregulated hunting of moose co-agreement created by communities with gov
• how communities can work with gov

Question 26

Netukulimk:

Answer 26

• use and care of natural resources for well being of individuals and communities
• honouring past, current, future gens

Question 27

Msit No’kmaq:

Answer 27

• all our relations
• spiritual link between Mi’kmaq and world around us
• based on respect for natural world

Question 28

Etuaptmumk:

Answer 28

• 2 eyed seeing

- modern concept of bringing together western science and Mi’kmaq knowledge

Question 29

Toqi’maliaptmu’k

Answer 29

• modern concept of co-management

- we will look after it together

Question 30

clear cutting on crown lands in NB? NS?

Answer 30

• duty to consult
• title and rights
• significant impact on title and rights