Module 10

Question 1

What has been the historical relationship between Indigenous peoples and the Canadian state?

Answer 1

A long process of recognizing Aboriginal Rights, including military force, assimilation policies, and restrictions in the Indian Act.

Question 2

When were First Nations allowed to vote in federal elections in Canada?

Answer 2

1960

Question 3

What significant change occurred in the Indian Act in 1951?

Answer 3

Removal of the restriction prohibiting First Nations from initiating legal land claim action.

Question 4

What did the Supreme Court ruling in the 1970s affirm regarding Aboriginal Rights?

Answer 4

It recognized the existence of Aboriginal Rights.

Question 5

How are Aboriginal Rights generally defined today?

Answer 5

Inherent, collective rights that flow from original occupation of the land.

Question 6

What is the key difference between ‘Aboriginal Rights’ and ‘special rights’?

Answer 6

‘Aboriginal Rights’ are based on prior occupancy, while ‘special rights’ are often seen as race-based extensions.

Question 7

What does Section 35 of the Constitution of Canada recognize?

Answer 7

It recognizes and affirms existing Aboriginal and treaty rights.

Question 8

What is the primary focus of Aboriginal Law?

Answer 8

The unique constitutional rights of Aboriginal peoples and their relationship with the Crown.

Question 9

What constitutes Indigenous Law?

Answer 9

Legal orders rooted in Indigenous societies, including customs and teachings.

Question 10

What was the significance of the St. Catherine’s Milling Case?

Answer 10

It articulated the existence of Aboriginal title stemming from the Royal Proclamation.

Question 11

What was the outcome of the Calder case regarding Aboriginal title?

Answer 11

The court acknowledged that Aboriginal rights existed prior to European contact.

Question 12

What was the technicality that led to the dismissal of the Calder case?

Answer 12

The case was dismissed due to a technicality, despite the court addressing the source of Aboriginal title.

Question 13

What did the Van der Peet case involve?

Answer 13

A First Nations woman charged with selling salmon caught under a food-fishing license.

Question 14

Fill in the blank: Aboriginal Rights are seen as _______ that flow from original occupation of the land.

Answer 14

[inherent, collective rights]

Question 15

True or False: Aboriginal Rights are considered race-based rights.

Answer 15

False

Question 16

What does the term ‘usufructuary’ refer to in the context of the St. Catherine’s Milling Case?

Answer 16

The right to use the land but not to own it in fee simple.

Question 17

What was the effect of the White Paper on the recognition of Aboriginal Rights?

Answer 17

It led to increased pressure from Indigenous peoples for recognition of their rights.

Question 18

What does Aboriginal Law largely consist of?

Answer 18

Court decisions, colonial instruments like the Indian Act, and sources of Indigenous law.

Question 19

What did the Supreme Court decide regarding the Crown’s authority to extinguish Aboriginal Rights?

Answer 19

The Crown has the power to unilaterally extinguish those rights through legislation.

Question 20

What was the significance of the first court case to recognize Aboriginal title in Canada?

Answer 20

It required Canada to implement a comprehensive claims policy and negotiate with Indigenous groups like the Nisga’a to extinguish their Aboriginal title.

Question 21

Who was Dorothy Van der Peet?

Answer 21

A First Nations woman from the Stó:lō Nation charged with selling salmon caught under a food-fishing license.

Question 22

What was the primary legal issue in the Van der Peet case?

Answer 22

Whether the right to sell fish caught for sustenance was protected under Section 35 of the Constitution Act.

Question 23

What did the Supreme Court of Canada conclude regarding the sale of fish in the Van der Peet case?

Answer 23

The sale of fish did not qualify as an Aboriginal right, even though fishing was recognized as an existing right.

Question 24

What is the ‘Van der Peet Test’?

Answer 24

A test to determine the existence of Aboriginal rights based on whether the right is integral to the culture of the claimant.

Question 25

What are the criteria for the 'Integral to a Distinctive Culture Test'?

Answer 25

Proof that the claimed right is integral to the culture of the claimant.

Question 26

What was a major critique of the Van der Peet decision?

Answer 26

It circumscribes previous rulings on Aboriginal rights and requires proof of centrality to pre-colonial culture.

Question 27

What issue does the Van der Peet Test raise regarding Indigenous cultural practices?

Answer 27

It freezes Indigenous culture to a specific point in time and ignores its dynamic nature.

Question 28

What was the outcome of the Tsilqot’in Nation case in 2014?

Answer 28

The Tsilqot’in Nation was granted a declaration of Aboriginal title over their traditional territory.

Question 29

What rights does the Tsilqot’in Nation have as a result of their title declaration?

Answer 29

Exclusive rights to decide land use and benefit from that use.

Question 30

What does the Tsilqot’in ruling imply about economic development on their lands?

Answer 30

Economic development cannot occur without their consent.

Question 31

What remains a concern regarding the Tsilqot’in ruling?

Answer 31

The underlying sovereignty of the Crown, which allows potential infringement on Aboriginal title.

Question 32

Define Aboriginal rights in Canada.

Answer 32

Inherent rights held by Indigenous peoples due to their long-standing occupation of the land, protected under Section 35 of the Constitution.

Question 33

What is the basis of Canada's claim to sovereignty over Indigenous lands?

Answer 33

The Doctrine of Discovery and the principle of terra nullius.

Question 34

What is the ‘Baker Lake Test’?

Answer 34

A set of four conditions established by the Supreme Court to demonstrate the legal existence of Aboriginal title.

Question 35

List the four conditions of the Baker Lake Test.

Answer 35

* Membership in an organized society * Occupation of specific territory * Occupation to the exclusion of other societies * Established fact at the time of asserted sovereignty.

Question 36

What are Comprehensive Claims?

Answer 36

Claims where Indigenous people never extinguished their Aboriginal title through treaty.

Question 37

What is a tripartite agreement in the context of Comprehensive Claims?

Answer 37

An agreement involving the First Nation, the federal government, and the provincial government.

Question 38

What is the purpose of the Indian Claims Commission (ICC)?

Answer 38

To examine claims and advise on the best way for claims to be adjudicated.

Question 39

What did the Calder decision establish?

Answer 39

That Aboriginal rights, including title to land, exist outside of any legislation.

Question 40

What does Section 35 of the Canadian Constitution protect?

Answer 40

Aboriginal rights held by Indigenous peoples.

Question 41

What are Specific Claims?

Answer 41

Claims based on non-fulfillment of a treaty or breach of statutory responsibilities.

Question 42

What is the impact of Canada's underlying sovereignty on Aboriginal rights?

Answer 42

It allows the government to limit or extinguish Aboriginal rights through legislation.

Question 43

True or False: The Supreme Court has articulated a clear basis for Crown sovereignty over Indigenous lands.

Answer 43

False

Question 44

What does the term 'de facto control' refer to in the context of Canadian law?

Answer 44

British Columbia's historical and current control over Indigenous lands and resources without legal authority.

Question 45

What type of agreements are modern-day treaties related to land claims?

Answer 45

Agreements that are protected by the Constitution and cannot be unilaterally changed.

Question 46

What are the three primary land issues Indigenous people seek in negotiations?

Answer 46

* Maintain traditional hunting, fishing, and trapping lifestyles * Significant role in management of natural resources * Equitable portion of economic opportunities from traditional territories

Question 47

What was the first modern Comprehensive Claim signed in Canada?

Answer 47

James Bay and Northern Quebec Agreement in 1975.

Question 48

How many Comprehensive Claims agreements have been finalized since the James Bay Agreement?

Answer 48

25 more Comprehensive Claims agreements.

Question 49

What is the role of the Office of Native Claims established in 1974?

Answer 49

To address the resolution of land claims.

Question 50

What was the Delgamuukw Decision?

Answer 50

A Supreme Court decision recognizing the importance of oral history in court and reaffirming Aboriginal Title.

Question 51

What did Justice Allan McEachern rule in the original Delgamuukw case?

Answer 51

That Aboriginal Title had been extinguished based on B.C.’s early Colonial Land Ordinances.

Question 52

What key aspect did the Supreme Court affirm in the Delgamuukw Decision?

Answer 52

Oral history must be given the same weight as written history.

Question 53

What does Aboriginal Title stem from according to the Delgamuukw Decision?

Answer 53

Prior occupation, not from Royal Proclamation.

Question 54

What is the significance of UNDRIP in relation to Indigenous rights?

Answer 54

It declares and supports the collective rights of Indigenous peoples.

Question 55

What does Article 32 (2) of UNDRIP state?

Answer 55

States shall consult and cooperate in good faith with Indigenous peoples to obtain their free and informed consent prior to project approval affecting their lands.

Question 56

What was the response of Canada and other colonial countries to UNDRIP in 2007?

Answer 56

They voted no to adopting the Declaration.

Question 57

What is the difference between Wet’suwet’en hereditary governance and Indian Act governance?

Answer 57

Hereditary governance predates colonization and is responsible for decisions about ancestral lands, while Indian Act governance is limited to reserve boundaries.

Question 58

What was the outcome of the negotiations between the Wet’suwet’en hereditary Chiefs and the government?

Answer 58

An MOU was signed to recognize Aboriginal Title and governance over unceded Wet’suwet’en lands.

Question 59

What is the current status of the Wet’suwet’en land claim?

Answer 59

They have not reached a formal land claim agreement recognizing their Aboriginal Title.

Question 60

True or False: The B.C. government supports the Coastal GasLink pipeline project.

Answer 60

True.

Question 61

What major concern did the Wet’suwet’en express regarding the Coastal GasLink pipeline?

Answer 61

Environmental concerns and impact on their ancestral lands.

Question 62

Fill in the blank: The Delgamuukw case emphasized that Aboriginal rights are __________.

Answer 62

proprietary rights.

Question 63

What did the B.C. Environmental Protection Office find regarding Coastal GasLink's construction?

Answer 63

They found non-compliance orders and halted construction near protected wetland areas.

Question 64

What is the significance of the term 'unceded' in relation to Wet’suwet’en territory?

Answer 64

It means their territory has not been formally surrendered or agreed upon by the government.

Question 65

What is the significance of the Coastal GasLink pipeline situation?

Answer 65

It highlights the ongoing conflict over Indigenous land rights and the imposition of Canadian law on Indigenous peoples. ## Footnote The situation is emblematic of a historical pattern of settlers taking Indigenous land without consent.

Question 66

What are Specific Claims?

Answer 66

Claims initiated by First Nations against the government for breaching treaty requirements. ## Footnote These typically arise from issues regarding reserve land.

Question 67

What role does the Indian Act play in land claims?

Answer 67

It allowed for the alienation of reserve lands, leading to illegal or questionable land transfers. ## Footnote Procedures were required to legally transfer land from reserve status.

Question 68

When did the ability to engage in land claims emerge?

Answer 68

After the overhaul of the Indian Act in 1951. ## Footnote This allowed First Nations to negotiate land claims formally.

Question 69

What is the significance of the UNDRIP for Indigenous land rights?

Answer 69

It will impact economic development on Indigenous lands and requires free and informed consent from Indigenous peoples. ## Footnote Its adoption could change the landscape of resource development in Canada.

Question 70

Define Aboriginal Law.

Answer 70

The system of law in Canada dealing with the constitutional rights of Aboriginal peoples and their relationship with the Crown. ## Footnote It includes colonial instruments and Indigenous law.

Question 71

What are Aboriginal Rights?

Answer 71

Inherent rights of Indigenous peoples attributed to their long-standing occupation of the land. ## Footnote These rights include title to land and self-determination.

Question 72

What was the Calder Case about?

Answer 72

A land claims case involving the Nisga’a, which confirmed the existence of Aboriginal title. ## Footnote It led to the establishment of a formal process for addressing comprehensive land claims.

Question 73

What constitutes a Comprehensive Land Claim?

Answer 73

Claims arising where no treaties have been negotiated, indicating Aboriginal Title and Rights have not been extinguished. ## Footnote These claims are based on historical occupation before formal treaties.

Question 74

What is the Doctrine of Discovery?

Answer 74

A doctrine allowing European nations to claim 'uninhabited lands', based on old Christian ideology. ## Footnote It includes the concept of 'terra nullius', asserting land was empty if Indigenous use did not align with European patterns.

Question 75

Define Indigenous Law.

Answer 75

Legal traditions and imperatives arising from Indigenous societies, reflecting their worldviews and philosophies. ## Footnote It is distinct from colonial legal systems.

Question 76

What was the Integral to a Distinctive Culture Test?

Answer 76

A legal test from the Van der Peet decision determining the existence of Aboriginal rights based on cultural significance. ## Footnote It requires proof that a right was integral to the culture of the claimant before European contact.

Question 77

What is a Specific Land Claim?

Answer 77

A claim arising when the provisions of a settled treaty have not been implemented or fulfilled. ## Footnote It addresses breaches of specific treaty agreements.

Question 78

What was the outcome of the St. Catherine’s Milling Case?

Answer 78

It ruled that Indigenous peoples had usufructuary rights to the land, not full title. ## Footnote This case influenced federal government policy for nearly a century.

Question 79

What was significant about the Tsilqot’in Case?

Answer 79

It was the first case where an Indigenous group had their Aboriginal title declared in Canadian law. ## Footnote The Tsilqot’in Nation proved exclusive rights to land use.

Question 80

What does Usufructuary mean?

Answer 80

The right to use land without owning it outright. ## Footnote This concept was solidified in the St. Catherine’s Milling case ruling.