#9113 - Chart Of Tests - Aboriginal Law

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

Framework for Aboriginal Rights

Issue: (identify as specifically as possible)

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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

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

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 Treaties (Marshall #1, Dissent)

Duty to Consult (Haida)

Nature of Duty:

- duty to consult is triggered at outset

-***note: this is distinct from rights analysis framework- asks if there is a duty in a specific context > often triggered in a development context, where a govt decision can adversely affect community

-rooted in honour of the Crown, reconciliation goals

Test to Assess if Duty is Met (Haida)

Self Government

-framework: do historic treaties imply self- govt rights?

B. EXTINGUISHMENT

-onus is on the Crown

Aboriginal Rights

-“existing” in s. 35 means unextinguished at the date of enactment of s. 35 (1982)

-we will likely not have a pre 1982 extinguished right on exam

-applies to Metis rights (Powely)