chapter 3 Flashcards
(37 cards)
What is Indigenous law?
Law and law-making powers that Indigenous Peoples have regardless of the Canadian legal system
Indigenous laws flow from Indigenous Peoples, their systems, their beliefs, and their languages.
What is Aboriginal law?
Law created ABOUT Indigenous Peoples, primarily authored by non-Indigenous Peoples
Includes Canadian statute and common law pertaining to First Nations, Inuit, and Métis.
What does Section 35 of the Canadian Constitution recognize?
Constitutional recognition of existing Aboriginal and Treaty rights
Extends to treaties, self-government agreements, and practices such as hunting and fishing.
What is the significance of the Royal Proclamation of 1763?
recognized “several
Nations or Tribes of Indians” and that “Indian
lands” could only be surrendered to the Crown in order to avoid “frauds and abuses” by settlers
It aimed to prevent provincial exploitation of Indigenous lands.
What is the purpose of treaties in relation to Indigenous Peoples?
Framework for granting rights from Indians, not just to Indians
Treaties are foundational agreements for nation-building and recognize pre-existing Aboriginal title.
What are the key components of the Sparrow Test?
- Is there an existing Aboriginal Right?
- Is the right based on practice, custom, or tradition integral to Indigenous culture?
- Is there a valid legislative objective?
- Has the honour of the Crown been upheld?
Used to determine if infringement of Aboriginal rights is justifiable.
What was the outcome of the Delgamuukw case?
Confirmed that Aboriginal title exists in BC and is a right to the land itself
Established the requirement for consultation and potential compensation when dealing with Crown land.
What did the Supreme Court decide in the Tsilhqot’in Nation case?
Granted a declaration of Aboriginal title and affirmed that the doctrine of terra nullius has never applied to Canada
Confirmed that Aboriginal title holders have rights to benefits associated with the land.
True or False: The Indian Act applies to Inuit and Métis.
False
The Indian Act specifically applies to First Nations.
Fill in the blank: The Constitution Act, 1982 includes section 35(1) which provides that the ‘existing _______ and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’
Aboriginal
This section is crucial for recognizing Indigenous rights.
What is the relationship between environmental law and Indigenous Peoples in Canada?
Environmental law intersects with Indigenous rights, particularly regarding land use and resource management
Indigenous consultations are required for projects that may impact their rights.
What was the significance of the Calder case?
Brought land claims to the attention of governments and initiated the modern federal treaty-making process
Condemned approaches that discounted Indigenous customs and law.
What is meant by the ‘duty to consult’?
Arises whenever the Crown has knowledge that an Aboriginal rights or title claim may be adversely impacted
This duty varies depending on the seriousness of potential adverse effects.
What are the three types of treaties recognized in Canada?
- Historic treaties
- Modern treaties
- Inter-tribal treaties
There are over 500 treaties recognized in Canada.
What does the term ‘Aboriginal title’ refer to?
A property right that exists in relation to land, not just traditional practices
It includes rights to use, enjoy, and profit from the land.
What is the significance of the Haida Nation case?
Established the legal duty of governments to consult and accommodate Indigenous peoples even when title has not been proven
Consultation must be meaningful, but does not require agreement.
What are the benefits of treaties for Indigenous Peoples?
They provide a framework for participation, certainty, and division of powers
Treaties bridge different legal systems and assumptions.
What is the concept of ‘honour of the Crown’?
A principle that underlies the duty to consult and accommodate Indigenous peoples in decision-making
It emphasizes good faith and respect in negotiations.
What did the SCC conclude regarding the Forest Act and Aboriginal title lands?
The legislature intended the Forest Act to apply to land under claims for Aboriginal title until title is confirmed by agreement or court order.
Once Aboriginal title is proven, the beneficial interest in the land, including its resources, belongs to the Aboriginal title holder.
What was the main argument of the Mikisew Cree First Nation regarding Bills C-38 and C-45?
Mikisew argued that it should have been consulted about the legislation as it could adversely affect their treaty rights.
The Mikisew Cree First Nation was not consulted on either bill.
Did the majority of the court find that forming and passing legislation triggers the duty to consult?
No, the majority determined that forming and passing legislation does not trigger the duty to consult.
What power do courts have regarding enacted legislation inconsistent with Canada’s Constitution?
Courts have the power to nullify enacted legislation that is inconsistent with Canada’s Constitution and/or quash executive decisions based on that legislation.
Referenced cases include Sparrow and Haida.
What did some justices argue about the honour of the Crown in relation to legislation?
Some justices argued that the Crown is obligated to conduct itself honourably even in the legislative sphere.
What are the conditions under which Aboriginal title can be infringed by governments?
Governments can infringe Aboriginal title only if they establish a compelling and substantial public interest and uphold their fiduciary duty/honour of the Crown.
