Aboriginal Law Flashcards
Reference Re Eskimo
are Eskimo people of Canada in the northern region of the territory considered to be Indian? They were given status by the Eskimo Reference.
Daniels v Canada
recognizes the fact that people that have mixed heritage – Metis – are also considered to have Indian status
Davin Report 1879
avin was summoned by the government to go and study the phenomenon in the United States where they had put together schools to educate the aboriginal people. He recommended a similar school system – what we call in Canada the residential school system. In that particular school system the culture of fear was reinforced.
Davin Report 1879: recommended the creation of a system of schools where children would be separated from their parents to reduce the influence of their aboriginal culture and language.
Residential schools: reinforced culture of fear within aboriginal children and that self-determination would not be tolerated by the Canadian state.
Lovelace v Canada
Discrimination: Indian status was deemed to flow from the father. This led to recourse at the UN in the case Lovelace v Canada
Section 88 Indian Act 1876
“Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act…”
R v Francis (1998)
The province has the right with any law of general application to regulate aboriginal people.
Section 88, Indian Act
Kruger and al v Queen [1978]
We have two defendants, Kruger and Manuel, both of whom are of First Nations people in British Columbia.
They were charged in violation of the Wildlife Act for killing a deer outside of the hunting season.
They appeal the charge by saying that they had an aboriginal right to hunt on this land given to them by the Royal Proclamation 1763.
However, the conviction was upheld by the Court of Appeal, which ruled that the Wildlife Act applies to everyone and does not conflict with any sections of the Indian Act.
The fact that you cannot hunt outside of the season applies to you, me, and the Aboriginal people equally. All of us cannot hunt outside of the season. That is general application.
Kruger and Manuel were not happy and appealed all the way to the Supreme Court with this. The Supreme Court said that even laws which have a disproportional impact on Aboriginal people in comparison to other citizens can still be upheld.
So, this might have more of an impact on them because they cannot hunt, but the Supreme Court said that is okay.
This is a tricky case because it is a pre-1982 case.
Would you expect a different outcome if it was post-1982? Yes, because of Section 35 Constitution Act 1982. This would be protected. You might say that there would be a different outcome from the Supreme Court. The Supreme Court might have had a different point of view because their Aboriginal right is protected under Section 35.
The following cases actually post Charter and post Constitution 1982, and is actually the same outcome as Kruger. However, it is seen as if it is an anomaly. But it is important that you understand that.
A provincial law of General Application is overstepping
1) It singles out Indians or Indian reserves for special treatment.
2) it impairs the “status or capacity” of Indians; if they affect Indianness by limiting the rights available to Indians.
3) it is inconsistent with a piece of federal legislation like the Indian Act. In this case the doctrine of paramountcy applies.
4) It deprives Indians of their rights under the Natural Resource Agreements which allows them to hunt and fish for food.
5) it impairs Aboriginal and Treaty rights which are constitutionally protected under Section 35, Constitution Act 1982.
Dick v The Queen (1985)
You would think that this would come to a different outcome than Kruger, but it did not. The fact pattern is exactly the same.
Here again it is in violation of the Wildlife Act. Kruger was a pre-Charter case. Dick is 1985.
The fact is that the appellant was a non treaty or non status member of a band who was charged with killing a deer out of season. Thereby he contravened Section 3 of the British Columbia Wildlife Act.
The appellant was convicted and on appeal several legal issues were raised.
First was whether the Wildlife Act impaired the status and capacity of Indians. So, is it affecting their Indianness — an infringement of Section 91(24)?
We wanted to know whether or not if that particular Wildlife Act, which was a provincial law, was constitutional or whether there was a conflict of jurisdiction with Section 91(24) of the federal government’s power.
Secondly, if it doesn’t infringe the federal jurisdiction, can the infringement be justified under Section 88 Indian Act?
Is it a law of general application?
That is always what you want to do. You want to look at whether or not it is infringing the federal power, because de facto we know that when we say “Aboriginal people or law” we think Federal power.
Clearly, if there is an act that looks like it is infringing because it tries to regulate Indian people, you will look at whether or not this particular infringement, if there is one, is justified by Section 88. Is the law of general application that can actually be justified?
The Court ended up by dismissing the defendant’s appeal, and the claim that the Wildlife Act was a law of general application had no means to be covered because it was irrelevant.
The reason that Section 88 does not incorporate all provincial laws of general application here… It only incorporates provincial law which cannot apply to Indians without regulating them as being Indians.
So, it is not because it is a law of general application that it is okay, it has to really not affect the “Indianness” of the person.
So, essentially the courts are saying that provincial law cannot affect the aboriginality — the “Indianness” of first nation groups.
It was just a necessary to know whether or not this particular Wildlife Act could be incorporated in Section 88 at that point.
What is very interesting is that here they said that it did not actually affect their “Indianness”. So, Peter Hogg asks, what does then?
This was a very interesting outcome of the courts. It is seen as an anomaly. This would not be considered consistent law from the Supreme Court. I think that the outcome would be different if we had similar litigation today. What they believed was that hunting a dear was not part of Indian status - not part of Indianness — which is actually an activity that defines them in the eyes of the court. So, it is a very controversial outcome.
It is just to tell you that even though we are post Charter here, it didn’t really help the defendant to make a case for them.
There has been, however, case law since this that has reversed this decision. This case is simply to show us the contrast between a few years after the Constitution was entrenched, and a few years before.
St. Catharine’s Milling and Lumber Co v The Queen [1889]
This case is that land currently reserved and occupied by Indians is considered a reservation.
Land surrendered became part of the regular Canadian territory.
Section 25 Charter
Not active.
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty, or other rights or freedoms that pertain to the aboriginal peoples of Canada including:
a) any rights or freedoms that have been recognized by the Royal Proclamation of October 1763
b) any rights or freedoms that may be required by the aboriginal peoples of Canada by way of land claims settlement
Section 91(24) Constitution Act 1867
authorizes the federal government to make laws in relation to Indians, and lands reserved for Indians.
Geurin v Canada 1984
Reaffirms the minority opinion in Calder, because it argues that Aboriginal title is an inherent right to preexisted the Royal Proclamation.
But also it declares that the Crown must respect the terms on which the land was surrendered by the Aboriginal community to the Crown, in the Crown must also administer the land in the best interests of the group who have and hold the title.
A legal right derived from the Indians historic occupation and possession of their tribal lands.
The state is said to have a fiduciary duty to Aboriginal peoples and in relation to Aboriginal peoples lands (negotiate in the best interests of aboriginal groups).
This is the case about the golf course. Essentially the government promised the band that the rental of the Golf course on their land would pay a fair market rate to the band. However, what happened was the Crown renegotiated the contract with the golf course to pay around 10% of the fair market rent for the land, and the crown went ahead and leased it without consulting the aboriginal people.
So, there was a significant reduction in revenue for the band. That was kept secret for 12 years. Eventually the case was taken to court and the band was awarded $10 million in compensation because of the government’s actions.
The bottom line is that there is a fiduciary duty when the government of Canada negotiates on behalf of the aboriginal people – the government has to negotiate in the best interests of them.
There is also a further duty to consult the aboriginal people before entering into any type of agreement.
Calder v British Columbia 1973
This is important to note because it is pre-Section 35 Constitution Act 1982. Section 35 does not apply here.
Not only that, but Calder is a pivoting point for aboriginal rights.
It is very important because it is actually a private dispute. It is not a constitutional dispute, but if it had gone sour, which it did a little bit, it would have been the end of it for aboriginal people. That is how crucial it is.
There is really a pre-Calder and a post-Calder, I would say.
The man in the picture is the chief of the tribe – he is Calder. He brought forth a case on behalf of his Nisga’a Nation Tribe In British Columbia to argue that they had their title given by the Royal Proclamation 1763 had never been surrendered to the Crown, and that they had continuous underlying title to this land, which was about a thousand kilometres of British Columbia territory.
What they were saying was that under the Royal Proclamation they never gave away their title to the land, and that they were still entitled to it, and that the federal and provincial governments were infringing on their rights because they had underlying title.
Both the British Columbia Court, and the Court of Appeal rejected the claim, and in this judgement you can clearly identify some of the “civilized” versus “uncivilized” rhetoric that I referred to at the beginning of the lecture.
The British Columbia Court of Appeal said that the band had no rights/property over the BC lands because Aboriginal people “at the time of settlement [were] a very primitive people with few of the institutions of civilized society, and none at all of our notions of private property”.
So, the band appealed this decision all the way up to the Supreme Court, which dismissed the appeal and upheld the decision of the lower courts.
However, the courts were unanimous in their decision about the pre-existing aboriginal title.
So, here, what is really unusual is that the majority opinion tells you that the Royal Proclamation 1763 did not find British Columbia because this was an area that was not under their control until about 1871.
Therefore, the Band did not live under British control and therefore cannot claim protection of the Royal Proclamation. So, they could not say that they were protected as having pre-existing ownership rights. This is because British Colombia was not under Crown control until 1846.
The Supreme Court did not dismiss the fact that the aboriginal people did have a pre-existing title. They just said that this title was not recognized by the law. That was the majority opinion.
However, what is way more important in this decision is the dissent. Why? Because the dissent in Calder, the minority opinion said that the Court was wrong in believing that after conquest the Aboriginal people had no right unless it was recognized by colonial law.
So, basically the Supreme Court were telling them that if you are not recognized by civilized European people you do not have a right. The minority opinion said no to this and that this was not correct – it is not because we deemed them as not having a right that they don’t have one, they do have one; they said that there is much evidence affirming common law recognition of aboriginal rights to possession as an inherent right.
So, now many have argued that an Appeal to the Supreme Court is a very risky thing to do because they would have failed on this inherent status of an aboriginal right or title to land would have been completely dismissed and it would have been the last episode of potential litigation for title by aboriginal people.
What is very important in this case is the minority opinion. Go read the case.
Why is it so important? Because it gave rise to multiple post-Calder agreements and settlements.
Haida Nation
Haida Nation is another case that says it doesn’t matter – you still have that fiduciary duty to consult even though that right might not have been recognized.
The Court said that the duty to consult even extends to land to which aboriginal title and right has not yet been proven.
