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General Themes: o Cases are complex, contradictory and shaped by sociopolitical contexts o Tension bw law as an oppressive force and its utility and limits in terms of social change o Need to make space for FN legal traditions- can this occur in system?
o Underlying prioritization of crown sovereignty TOPIC THEMES, PRINCIPLES, CASE LAW GOVERNANCE Overview
-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 Governance
-treaties played an important role in reciprocal recognition of B and FN governance, sovereignty and Treaty
-treaties recognized inherent independence of each party; relied on FN customary law Interpretation Historic Treaties that Recognize FN Governance
-Covenant Chain, early 1600s
-series of treaties and military, political, social and economic alliances that existed
-basis was Treaty of Albany
-est the parameters of B-FN relations in N America
-Treaty of Albany, 1664
-1st formal alliance bw FN and B (w Iroquois)
-guaranteed free trade, political alliances, protection from English
-Royal RP of 1763 (RP)
-main document for treaty interpretation, continues to be relevant today, e.g. Sioui
-declared to demarcate boundaries bw FN and Crown
-increased dominance of GB but neg still cont'd on nation-nation basis, foundational principles of respect and friendship continued; protection of lands, rights and peoples
-Treaty of Niagara, 1764
-Borrows: -views as a more accurate reflection of RP's intent than RP itself:
-promises made have never been repealed and remain in effect, e.g. permission needed to settle territory

Jurisprudence Addressing Historic Treaties and Governance
-SCC has recognized autonomy of FN in early period and contemporarily protected treaties from this period:
-Sioui (1990): inherent autonomy of FN > entered into nation to nation agreements
-Chippewas of Sarnia (OCA 2000): parties viewed as sovereign, RP recognizes this but also protects Cr control re settlement and surrender IA and
-inherently challenges all governance structures bc it vests authority in govt to heavily regulates all Challenges to aspects, is racist and outmoded; however, doesn't entirely extinguish self governance 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 Litigating Self
-only recently has the ct addressed governance, which has been interpreted really narrowly Governance
-sovereignty has been applied un= bw FN and C
-2 lines of cases: IA (e.g. taxation, etc.) and s. 35
-lack of recognition but also lack of extinguishment of self govt
-respect for self govt difficult to accomplish, despite historical precedent and legal instruments which could implement and accommodate it: IA is assimilationist
-means in which it could be recognized:
-RP, direct action, litigation, etc.
-s. 35(1):interpreted broadly to recognize an inherent jurisdiction for governance
-Pamajewon (1996): no general inherent right to self-governance to s. 35 (narrow characterization)
-Delga (1997): failed to be considered by the ct; cannot be claimed broadly- no general right
-Mitchell (2007): FN sovereignty cannot be incompatible w Cr- Cr trumps it
-negotiated self govt agreements: e.g. Nisga'a, James Bay, Tsawassen, Metis
-Campbell (BCSC 2000): Nisgaa agreement constitutional; self govt constitutional via: federalism (ss. 91/02 do not exhaust legislative powers- what remains are treaty rights which includes self govt powers), unwritten principles, preamble, s. 35; but it is a limited right RIGHTS AND TITLE Overview
-rights derive from FN law, governance, customs, traditions
-key debates: limits of the ct; strategies: litigation v. negotiation; evidentiary standards needed to prove a claim; rels bw FN legal perspectives and the CL
-cts treatment of rights and title:
-doctrine of continuity- based in historic practices (Connoly; VP)
-presumed to survive sovereignty (Mitchell)
-recognize FN sovereignty (Haida)
-have independent existence (need not have colonial recognition) (Calder, Cote, Adams)
-link bw rights and title: spectrum of rights: customs and traditions flow from land, however, finding of rights is not dependent upon a finding of title; rights are site specific (Adams; Cote)
-narrative of reconciliation: used to justify infringements History,
-part of Cdn constitutional law: Campbell: part of unwritten cons principles; preamble in BNA; now Constitutional enshrined in s. 35 Treatment
-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 TITLE Overview

Doctrine of Title

-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
-at contact, sharing of resources w Euro, concept of title arose from disputes which formed as Euro dominance grew
-colonizers relied on doctrines below to justify title, but colonizers and cts have misapplied doctrines so that dispossession is affirmed (Man Justice Inquiry)
-thus suggests that basis of Cr ownership is fraudulent Doctrines
-i) doctrine of discovery: sovereignty acquired thru terra nullis; for initial and incomplete title ; not based in intl law as substantive enough to base a claim (Island of Palmas); W Sahara (ICJ 1975): rejected terra nullis
-ii) doctrine of occupation: legitimizes title under doctrine of discovery if land was terra nullis; now held by int'l law that it doesn't apply in an area lived in by FN (Island of Palmas); FN would have title under this doctrine
-iii) adverse possession: claim to title is based in occupation for an extended period of time and original owner acquiesces, presence is peaceful and unchallenged; yet much in historical record that documents how FN resisted Cdn occupation
-iv) doctrine of conquest: allows use of force if states security forces are threatened, leads to full right to colonize, only operated if land was annexed and possessed by the conqueror; distinct from discovery: serves to determine what law applies to newly acquired territory, as opposed to ascertaining the legitimacy of the process of acquisition itself; doctrine largely irrelevant in Can, rejected by the cts (Simon); Can is a settled colony
-v) doctrine of cession: requires consent, treaties fulfill consent but their effect is ambiguousproblems w uncertainty, interpretation, fraudulence, did not really occur in BC
-vi) application of int'l law: lack of respect for intl law during treaty making period, ignored aspects that called for protection of FN interest in the land; above doctrines were not applied in their true form according to intl law; reified by domestic cts interp vii) use of Symbolic Acts: e.g. crosses, recitation of words conquest to legitimize claims, not a reasonable basis to claim land as purpose was concealed, not part of intl law

Modern Jurisprudence

Recent Considerations

RIGHTS Overview, Main Themes

-viii) real politik: contemporarily construed as moving on from the past, seen to be a historical event, rests on examples of inter-European conflict
-Marshall trilogy: extended fed supremacy over FN ppls; justification of taking of lands (fictive, created in case law)
-Johnson and McIntosh (1823): title is subject to crown sovereignty, title eroded bc of discovery or conquest, but FN retained rights as occupants and to continue possession
-Worcester (US 1832): Cherokee a distinct, but dependent nation (not fully sovereign); classic judgments on nature of title: power, war, conquest, doctrine of discovery all give rights to possession; no cession of land wo FN consent
-inconsistencies on colonial reliance on int'l law: reliance on terra nullis problematic as land wasn't empty; doctrine of discovery requires purchasing of title> this implies that FN owned land
-Cr response: acquiring land was a quest for inter-Euro dominance, caused wars
-RP, 1763: Cr assertion of sovereignty est title w the Cr; FN title is personal, usfructrary (only a right to use, but not own the land), it exists only at goodwill of the Cr; affirmed pre-existing FN rights
-St. Catherine's Milling (1888):
-1st important consideration of title
-reified Marshall trilogy: extended federal legislative supremacy over FN ppls
-narrow characterization of title: it is personal or usufructary, dependent upon good will of Cr; title is a burden on Cr title, so that when title is extinguished, Cr title is supreme
-Calder (1973): recognition of title in BC, shift in jurisprudence to allow centralization of FN perspective, prior occupation + possession at CL = title, burden rests on Cr to disprove; extinguishment must be clear and plain
-Baker Lake (1979): formulated reqmt for title, supercede by Delga
*** see separate framework sheet: Delgamuukw, Bernard/Marshall
-affirmed title rights in s. 35(1)
-RP recognition of rights incorporated into s. 25
-Guerin (1984): -affirms title which predates RP, title is a burden on the crown; title = beneficial interest, is sui generis, characterized by i) general inalienability and ii) cr obligated to deal w land on FN behalf when surrendered; change in sovereignty doesn't change title; title doesn't solely stem from RP; it exists on reserve; FN have beneficial interest in reserves (not ownership) Opetechsaht (1997): legal reqmts of surrender are restrictions on alienability of title: band can only alienate to the Cr, who owns land subject to sui generis interest
-Blockade, Wild: human, on the gorund experience of title claim (Gitsxan)
-Delgamuukw: title is different from fee simple; it is communally held; only alienable to the Crown; sources are historic occupation and possession, rels bw CL and FN law; gives new test for title: occupation prior to sovereignty, continuity in occupation if present occupation is proof; rights test used for infringement- valid objectives are broad, most under prov jurisdiction; oral histories accepted by ct but cannot strain CL
-Marshall/Bernard: standard of evidence re occupation; translate historic practice into modern right
-FN can rely on:
- i) title is presumed from possession;
-ii) possession is title against anyone who cannot prove better title
-where past possession is relied on, action for recovery for land may be more appropriate than title
-where present protection is sought, an action for trespass may be preferable bc it secures possession in the present and acts as a deterrent
-est title: would be advisable to continue traditional uses of land and mark land as possessed, exercise self govt
-current test doesn't accommodate FN understandings of land (Tshilqot'in 2007)
-Tshilqot'in: some recognition of nomadic rights re title (still a live issue)
-Ahousat (BCCA 2007): claim to title in the water
-sources of rights: means in which constitution recognizes prior occupation and differing sovereignties are reconciled
-affirmed in treaties and historical practices

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