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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PART III: ABORIGINAL LAW AS A SOURCE OF CANADIAN LAW (MARGARET GUIST)
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.
PROTECTIONS UNDER S. 35 OF CHARTER
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
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 process remained paternalistic. The modern expression of honour of Crown is that Crown has to act honourably in all relationships with Aboriginal people – this is used as an interpretive aid for treaties and legislation. The honour principle also militates that statutes ought to be liberally interpreted by the Crown. When a treaty is silent on an issue, honourable behavior ought to be laid out
R v Pamajewon 1996 SCC (GAMBLING)
Facts: appellants were charged with keeping a common gaming house contrary to the Criminal Code. Both Nations were claiming self government to their own economies by way of introducing gambling schemes.
I: Does the regulation of high stakes gambling by the Shawanaga and Eagle Lake Nations fall within the scope of the aboriginal rights affirmed by s. 35(1) of the Constitution Act 1982?
D: appeal dismissed:
Reasons: Claims to self government are no different from other claims to the enjoyment of Aboriginal rights and must be measured against the same standard. Aboriginal right must be activity of practice integral to distinct culture. Gambling is not protected under s. 35(1) of the Charter.
Responsibility of Crown to consult if there is an action that will infringe Aboriginal Rights )
Rio Tinto Alcan Inc v Carrier Sekani Tribal Council 2010 SCC (resource development requires consultation)
Facts: BC government builds dam along Nechako River claimed by respondents. They were not informed, and power generated was sold to appellant.
I: Was the fact that no consultation was made an infringement on s. 35?
D: appeal allowed; BC Utilities Commission approval confirmed
Ratio: Crown has responsibility to consult, not companies, because the Crown issues the permits.
Reasons: Commission did not act unreasonably by approving 2007 EPA. The duty to consult prevails when the Crown has knowledge that Aboriginal title may be adversely affected. That knowledge must be real or constructive. An entity seeking consultation must be expressly or impliedly allowed to do so. There were no physical impacts on the river or fishery that may have created an adverse effect.
Aboriginal Law from Textbook
Conolly v Woolrich (1867) – judge upheld validity of a 1903 marriage under Indian custom and noted that the assertion of British sovereignty did not annual tribal customs
Mitchell v MNR (2001) SCR (Nature of Rights)
Aboriginals were not conquered, but rather were recognized in their continuance through British sovereignty
Common law status of aboriginal rights subjected to unilateral extinguishment until s. 35 of CA 1982
Delgamuukw v BC 1997 SCC
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