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Aboriginal Law As A Source Of Canadian Law Margaret Guist Notes

Updated Aboriginal Law As A Source Of Canadian Law Margaret Guist Notes

Public Law Notes

Public Law

Approximately 55 pages

This course was taken with Professor Michelle Flaherty at the University of Ottawa. It is a mandatory first year course for J.D. students....

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Under the umbrella of Aboriginal Peoples, the First Nations is the larger group (ex. Cree), then there are the Inuit (arctic circle) and the Metis (historically, they are the descendants of the children of Indian women and French men).

There is a fair distinction between common law and Aboriginal law. The customs were intertwined with legal systems, as there were a number of treaties that had been agreed to with the British to reflect this. Oral history is a large aspect of culture and Aboriginal law. Customs are even proven through oral evidence in the courtrooms and have informed Aboriginal law. Initially, the customs were absorbed into the common law as long as they were not incompatible with Crown sovereignty/common law.

Under the Royal Proclamation Act 1763, ownership of land rests with the Crown. There were some paternalistic measures involved insofar as the land was inalienable, but could only be transferred to the Crown. Aboriginals see a direct relationship to the Crown by way of this Proclamation, although it asserted British sovereignty. The Crown considers it a statement of its fiduciary duty and holds it to be akin to a statutory creature. Part of the logic was to preserve Aboriginal lands because colonizers were taking them away.

Indian Act: Defines Indian status. It was a means by which the Crown could deal with certain rights of Aboriginal peoples. The first definition of Indian in this Act was very broad because it included all persons of Indian blood belonging to a tribe, persons married, and adopted by them or living amongst them to be Indian. There was a lot of litigation that surfaced from this definition as a result. Under s. 6, there is a cut off for second-generation children. So if you are the child of 1 non-Indian, and your child is a product of you and 1 non-Indian, your child cannot claim Indian status, but if you have a child with an Indian then your child can. You have to be a direct descendant (need to be able to trace bloodline to tribes). S. 1(c) allows for someone to be reinstated if they were stripped of their status (invoked when Charter was passed).

There’s been significant controversy around those who have been reinstated. Now, you cannot marry in; ancestry must come from birth.

The Indian Act governs the definition of a band (which must be accepted by Minister), sets out band rules for management of land, and regulations for wills, estates, taxation, and by-laws.


  • Granted Aboriginal rights and customs under the Charter. Existing cultural rights could not be changed by legislation, but they are very narrowly defined

  • Right to self-government still has not been proven (through policy, the feds have recognized inherent self-government to negotiate modern day treaties and land claims)

  • Most rights come up in process of prosecution (Ex. Hunting out of season, in wrong area, with wrong weapon, etc.)

R v. Sparrow 1990 SCC (FISHING RIGHTS)

Holding: If a customary practice existed before contact with settlers, then modern context is protected (if there is a reasonable continuity between practice and modern context) – if the practice was integral to culture, then it would be retained

  • Rights are subject to infringement by Crown where that infringement is justifiable

  • Ex. Trapping, hunting and fishing rights

ABORIGINAL TITLE (subset of Aboriginal rights)

  • Courts have been reluctant to define Aboriginal title; title rests with the Crown

  • Government has looked to land claims agreements, but they do not acknowledge that there is title to land, but rather that land claims have created regimes re: territories and how first nations manage the system

  • The Delgamuukw case introduced the sui generis title


  • Were negotiated with chiefs of tribes and representatives of Crown

R v Badger 1996 SCC – major interpretation of historic treaty # 8 (Northern Alberta and North Eastern British Columbia)

Facts: appellants were status Indians hunting on privately owned lands within tracts of surrendered territory under treaty. Each was charged.

I: Do status Indians under treaty 8 have the right to hunt for food on privately owned land which lies within the surrendered territory under that treaty?

  • Do ss. 26 and 27 of the Natural Resources Transfer Agreement 1930 apply to the appellants such that they’d require a license and can only hunt during certain seasons?

  • Have hunting rights been extinguished or modified by NRTA?

D: appeal dismissed

Reasons: treaty 8 gave rights to hunting subject to geographic limitations and the right of government to make regulations for conservation purposes. They did not have the right of access to the land and so their treaty to hunt for food did not extend there. NRTA extinguished commercial hunting, but not hunting for food. Treaties called for hunting on visible and compatible use, but the appellants used it incompatibly. Wildlife Act violates their right to hunt and cannot be justified.

Historic v. Modern treaties

  • If there is a misunderstanding in lack of clarity re: interpretation, favour is to be given in Aboriginal interpretation

  • Modern treaties are much longer than historic treaties and are enacted by legislation

Fiduciary Relationship

  • Relationship of trust and responsibility involving money

  • This is imported into Aboriginal law; Crown having intervened as fiduciary

  • Law still exists under Crown responsibility for reserved lands (Guerin case)

R v Guerin 1984 SCC (Fiduciary Relationship)

Facts: Surrendering of land for lease of golf. Crown entered in lease on behalf of band; terms of lease favoured golf course and the government but was not relayed to band. The band won the case as a result of fiduciary duty

Held: The government owes a fiduciary duty to Aboriginal peoples; title is sui generis

COMMENTARY: many cases have been brought against the Crown on this charge). The cause of action is brought by First Nations but the...

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