#9114 - Short - Aboriginal Law

-FNs never intended to give up authority or power

-governance existed for centuries prior to colonialism

-concept of rights given by creator; inherent

-debates: agents v. subjects; treaty interpretation and implementation, multiple sources of law, scope of rights: governance as an inherent FN right (s. 35) vs. narrow conception; differing conceptions of governance, self government and sovereignty

-diverse legal traditions, contrary to trope of FN as lawless, existing outside of reason, law

-multiple sources of law recognized in Connolly

-need for judiciary to make space for FN legal traditions- but can this occur w/in system?

-sovereignty, self govt and self determination are distinct concepts but also are fluid and overlap: unanimity in asserting an inherent right of self determination arising from their status as sovereign peoples

-sovereignty: both political and legal; principle of self-determination; inherent but also has a historical basis in colonial relations; an original freedom; some wary of using the term bc of its Euro meaning

-self govt: one aspect of self determination; ability to meet needs wo outside influence, wide range of defs from culturally separate institutions to land claims to guaranteed rep, among others

-governance: ability to organize community; distribution of authority, decision making power; reflects societal values/norms, collective history via control of institutions; Delgamuukw: flowing from presence on the land; disrupted by IA,

child apprehension

-2 lines of cases: IA (self govt challenged, but not extinguished) and s. 35 (ct evades right to self governance (e.g Delga, Pamejewon) but recognizes internal autonomy via treaties (Sioui)

-unlikely to be resolved: tension bw recognizing FN jurisdiction and extinguishment; cts treatment of two sovereignties

-inherently challenges all governance structures bc it vests authority in govt to heavily regulates all aspects, is racist and outmoded; however, doesn’t entirely extinguish self governance

-IA: s. 2(1) defines a band; s. 20: land allocation and possession; s. 81: band can exercise governance in extremely ltd circumstances; bylaws cannot conflict w Ab Affairs and ND

-historically, potlatch and sundance, forms of governance (e.g. Haudenosaunee), were outlawed by IA

-Logan (ON 1959): recognizes Haudenosaunee but positions FN as subjects of Cr- thus unable to control governance

-need to change IA- but elimination may lead to loss of rights, amendment inadequate

-govt resistance to changing IA and allowing for self govt

-part of Cdn constitutional law: Campbell: part of unwritten cons principles; preamble in BNA; now enshrined in s. 35

-failure of Cdn constitution to limit govt interference w FN rights has resulted in harm

-many FN groups view constitution w suspicion

-1968-advanced assimilationist White Paper (was never passed)- spurned resistance

-Ref re Amendment of Constitution (SCC 1981): unilateral patriation of the constitution was legal - sent back to bargaining table w promise to include FN rights

-1981- rights were dropped from the accord- spurned protests

-shift from NIB to Ab Rights Coalition (ARC)> fed govt responded it could not act w/o prov consent; FN protest, resistance to constitution, yet these ironically enshrined them

-constitutional entrenchment:

-s. 35: substantive guarantee of rights: affirms and recognizes existing rights and treaty rights; defines Ab ppls

-s. 25: context for s. 35, affirms rights from RP, rights not affected by CH

-s. 37: mandates for a constitutional conference; added s. 35(3) (treaty rights includes land claims agreements), (4), 25(b), 37.1(1)

-now these sections are primary means for id rights in addition to 91(24)

-too early to tell if these rights will be meaningful for FNs

-positively, s. 35 affirms that rights are not extinguished but it is problematic that the Cr has broad power to infringe

-sacredness and centrality of land to communities

-differing historical and contemporary conceptions about land, ownership:

- both settler and FN: land, property as integral to identity; as a resource, commodity

-FN: land of central importance to id, animate, part of spiritual understanding, stewardship, not owned in Euro sense, land given political citizenship

-Euro: bundle of rights, ability to alienate, destroy, exclusively use/occupy

-historically: when FN shared land did not conceive that it would be viewed as surrender of title

-Man Justice Inquiry: settler society must acknowledge is theft of land > linked to CJS

-highlights lack of legitimacy of legal system: based in assumed dominance of Cr title, inferiority of FN, improper use of int’l law, difficulty of ct in setting a date for sovereignty, contrary to rule of law

-for settlers: basis of legal system in protecting property rights

-originally doctrine of title reflected goal to maintain peaceful relations

-modern law reflects competition for land and interaction bw parties

-shift in jurisprudence: originally title viewed as personal (St. Catherines); now seen as stemming from historical occupation, didn’t originate from RP (Delgamuukw)

-sub issues: exclusion, nomadism, continuity (VDP, Nikal, Adams, Cote)

-inconsistent dealing w title by the courts- evaded issues such as legitimacy of Cr title