Law Notes Aboriginal Law Notes
Short Notes
Updated Short Notes
Aboriginal Law
Outline of aboriginal lands, right and title....
The following is a more accessible plain text extract of the PDF sample above, taken from our Aboriginal Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
FN LRG CONDENSED OUTLINE
General Themes:
Cases are complex, contradictory and shaped by sociopolitical contexts
Tension bw law as an oppressive force and its utility and limits in terms of social change
Need to make space for FN legal traditions- can this occur in system?
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 and Treaty Interpretation | -treaties played an important role in reciprocal recognition of B and FN governance, sovereignty -treaties recognized inherent independence of each party; relied on FN customary law Historic Treaties that Recognize FN Governance -Covenant Chain, early 1600s
-Treaty of Albany, 1664
-Royal RP of 1763 (RP)
-Treaty of Niagara, 1764
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 Challenges to Governance | -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 |
| Litigating Self Governance | -only recently has the ct addressed governance, which has been interpreted really narrowly -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... |
Buy the full version of these notes or essay plans and more in our Aboriginal Law Notes.
Need instant answers? Our AI exam tutor is here to help.
Ask questions 🙋 Get answers 📔 It's simple 👁️👄👁️
Our AI is educated by the highest scoring students across all subjects and schools. Join hundreds of your peers today.
Get Started