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Law Notes Aboriginal Law Notes

Chart Of Tests Notes

Updated Chart Of Tests Notes

Aboriginal Law Notes

Aboriginal Law

Approximately 71 pages

Outline of aboriginal lands, right and title....

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Aboriginal Title

Nature of Right:

-an umbrella concept

-livelihood practices attaching to crown land

- ‘higher order’ right, not tied to particular practices

-harder to ascertain than FN rights

-Delgamuukw:

-title is sui generis: is inalienable and arises from pre-contact occupation and relationship bw CL and FN tenure system; is a right in the land

- aligned w/ concept of reserves

Requirements for Proof of Title

Reqmts for Proof of Title Argument Pro Govt Argument Pro FN
Pre-contact occupation that is exclusive (Delgamuukw)

Exclusive possession in intention to possess and control land (Marshall/Bernard)

- narrows Delgamuukw

 -applies to nomadic and semi nomadic groups

Translate pre-contact right at time of sovereignty into modern day right that corresponds in CL

(Marshall/Bernard)

 Implies a level of self govt (Delgamuukw)> do not need to how specific activity to prove


Framework for Aboriginal Rights

Issue: (identify as specifically as possible)

_____________________________________________________________________________________________________________________________________

Interpretive Approach:

  • Courts should interpret “recognized and affirmed” in s. 35 generously and liberally – rights expansive approach (Sparrow)

    • look at it from FN perspective

    • any doubts should be resolved in favour of aboriginal rights

    • honour of the Crown is at stake – must make sure that the dealings are fair and in good faith

    • Crown has a fiduciary duty, held to a high standard (Guerin)

  • Purposive analysis: two purposes of s. 35 (Van der Peet)

    • recognition of FN prior occupancy

    • reconciliation of prior occupancy with Crown sovereignty

State Framework that will be applied: (e.g. I will identify i) the scope of the right to assess if the right falls under s. 35, ii) if it was extinguished, iii) infringed, iv) justified….)

____________________________________________________________________________________________________________________________________________

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A. SCOPE OF THE RIGHT

Aboriginal Rights

1. Nature of the Right

  1. nature of govt reg is not determinative scope, it can only reg exercising of right (Sparrow)

  2. existing rights must be unextinguished and consistently exercised

  3. spectrum of FN rights claims, depending on the connection of the right to the land (Van der Peet)

    1. freestanding (i.e.: customary adoption)

    2. site-specific rights (i.e.: fishing in a particular fishery)

2. Van der Peet test- is right to distinctive to culture? (Sparrow)

*** only address those that apply to fact pattern, some are redundant

Principle of Test Argument Pro Govt Argument Pro FN

  1. cts must take into account the perspective of FN for reconciliation

 -limit: cannot be antithetical to Cdn framework (Mitchell)

- means placing equal weight on FN and CL perspectives

-important recognition of FN law, but enforces colonial regime

  1. cts must identify precisely the nature of rights claim

 ambit of the claim must reflect the evidence

  1. practice, custom, or tradition must be of central significance, essential, unique

  • “but for” this practice, culture would not be the same

-trade of fish is not a centrally significant practice when the band is too small to have labour division (Van der Peet);

-gaming as it was not done on a large-scale (Pamejawon- but more for context of self govt rights)

-just because the custom is something that any human would do does NOT mean that the activity is not centrally significant to the culture (Sappier)

-cutting wood for shelter or economic survival (Sappier)

  1. practices, customs, and traditions have continuity re pre-contact

- evidentiary difficulties: does not have to be an unbroken chain – some discontinuity is ok, especially if the discontinuity is the result of Crown actions

-post-contact influence can be used to draw influences

  1. cts must approach rules of evidence in light of the evidentiary difficulties

 evidentiary burden remains on FN

  1. claims to right must be adjudicated on a specific, case by case, rather than a general, basis

 - just because one band was successful with a claim does not mean that other bands will automatically enjoy the same rights -recognition that some rights exist thru general application

  1. practice, custom, or tradition must be of independent significance

-cannot be a practice that is incidental to another practice that is more important- needs to be able to stand on its own

> e.g.- trade of fish that is incidental to the practice of cementing family relationships is NOT within the scope of s. 35 (Van der Peet)

  1. practice must be distinctive

 - must be a defining feature of the community (ie: centrally significant) - need not be distinct or unique (Sappier)

  1. cannot be derived from or integral bc of European influence

 -can have expanded bc of Euro influence, e.g. hunting equipment used

10) cts must take into account both the relationship of FN to the land and the distinctive societies and cultures of FN

> identify the right at stake:

_____________________________________

 - s. 35 involves a spectrum of rights, so both cultural and land related rights are included

Metis Rights (Powley)

>Sparrow framework above, applies re interpretive principles

> Van der Peet factors apply to Metis rights but are modified in terms of pre-contact reqmt to “pre-control aspect;” 3 prong test for Metis rights

Principle of Test Argument Pro Govt Argument Pro FN
Self identification
Ancestral connection
Community acceptance


Treaty Rights

-in general: acknowledge land, subsistence rights, some include health, are sui generis

-historic treaties: Marshall- honour of crown must be upheld even if right not explicitly recorded, no strict textual interpretation, relied on implying K’al terms

Factors to Apply in Interpretation of Historic...

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