Aboriginal Title and Treaty Rights Quiz
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Questions and Answers

What is the primary test for establishing Aboriginal title as discussed in Delgamuukw v British Columbia?

  • The integral to a distinctive culture test (correct)
  • A test specific for Aboriginal rights
  • The Van der Peet test
  • The common law framework

According to the jurisprudence, what characterizes Aboriginal title compared to Aboriginal rights?

  • Aboriginal title is more limited than Aboriginal rights.
  • Aboriginal title is determined solely by government authorities.
  • Aboriginal title is a broader right than any recognized Aboriginal right. (correct)
  • Aboriginal title does not recognize cultural practices.

What significant problem is faced by nomadic and semi-nomadic peoples regarding the establishment of Aboriginal title?

  • The definition of occupation does not accommodate their lifestyle. (correct)
  • Their claims are prioritized over sedentary groups.
  • Their rights are well-defined in the Royal Proclamation.
  • They are excluded from participating in legal discussions.

In R v Adams, how did the Court view Aboriginal title in relation to Aboriginal rights?

<p>Aboriginal title is a subset of Aboriginal rights as per section 35(1). (C)</p> Signup and view all the answers

What was the primary claim made by the Gitskan or Wet'suwet'en hereditary chiefs in Delgamuukw v British Columbia?

<p>Ownership and jurisdiction of their territory (D)</p> Signup and view all the answers

What does the Royal Proclamation primarily address?

<p>General principles concerning Indigenous rights (D)</p> Signup and view all the answers

What must be proven for a practice to be recognized as an Aboriginal right under the Van der Peet test?

<p>It must be an established custom or tradition integral to the culture of the group. (B)</p> Signup and view all the answers

What did British Columbia argue in response to the claims made by the hereditary chiefs in Delgamuukw?

<p>That the appellants have no right or interest in the territory. (A)</p> Signup and view all the answers

What is the primary claim in the case discussed?

<p>Claim for aboriginal title over the land (B)</p> Signup and view all the answers

What must judges consider when evaluating oral histories for Aboriginal title cases?

<p>Aboriginal perspectives and cultural significance (A)</p> Signup and view all the answers

Why can oral histories pose admissibility issues in trials?

<p>They are considered hearsay evidence (C)</p> Signup and view all the answers

What is one limitation of land use under Aboriginal title?

<p>Uses must not conflict with historical attachment (B)</p> Signup and view all the answers

What does 'sui generis' refer to in the context of Aboriginal title?

<p>Unique legal status of Aboriginal title (B)</p> Signup and view all the answers

What is a requirement for proving Aboriginal title?

<p>Exclusive occupation at the time of sovereignty (C)</p> Signup and view all the answers

Which of the following is NOT a recognized aspect of Aboriginal title?

<p>Limited to agricultural use (C)</p> Signup and view all the answers

How should courts approach oral histories according to the Supreme Court's guidance?

<p>Place them on equal footing with written evidence (D)</p> Signup and view all the answers

What crucial aspect was overlooked by the trial judge in the Aboriginal title cases?

<p>Assessment of oral histories (A)</p> Signup and view all the answers

What condition must exist if present occupation is used as proof of occupation pre-sovereignty?

<p>It must be continuous with past occupation (C)</p> Signup and view all the answers

What is the prime purpose of oral histories in Aboriginal rights claims?

<p>To serve as a cultural repository of historical knowledge (C)</p> Signup and view all the answers

What must Aboriginal groups do if they wish to use their lands inconsistently with Aboriginal title?

<p>Surrender the Aboriginal title (C)</p> Signup and view all the answers

Which case highlighted the need for courts to adapt evidence laws regarding oral histories?

<p>Van der Peet (B)</p> Signup and view all the answers

Which of the following best describes Aboriginal title in Canada?

<p>A right arising from historic occupation and cultural attachment (C)</p> Signup and view all the answers

What type of claim did the Tsilhqot’in file in court in 1998?

<p>Aboriginal title claim (C)</p> Signup and view all the answers

What was the primary outcome of the Tsilhqot’in Nation v. British Columbia case in 2007?

<p>Broad declaration of Aboriginal title (B)</p> Signup and view all the answers

In the Sparrow test for prima facie infringement, which of the following is a criterion used to assess limitation?

<p>Is the limitation unreasonable? (D)</p> Signup and view all the answers

According to the Tsilhqot’in Framework, what must be demonstrated for continuity of Aboriginal title?

<p>Connection to pre-sovereignty practices (D)</p> Signup and view all the answers

What is an inherent limit on Aboriginal title as discussed in the content?

<p>Title must benefit future generations and cannot destroy land value. (A)</p> Signup and view all the answers

What role does the Crown retain concerning Aboriginal title?

<p>Fiduciary duty to Aboriginal peoples (D)</p> Signup and view all the answers

Which of the following best describes the concept of 'terra nullius' in Canada?

<p>Was never affirmed to apply in Canada (A)</p> Signup and view all the answers

What is one of the criteria for establishing Aboriginal title under the Sparrow's justification test?

<p>Is there a valid legislative objective? (C)</p> Signup and view all the answers

In the context of Treaties in Canada, what characterizes modern treaties since 1973?

<p>They cover a significant portion of Canada’s land mass. (A)</p> Signup and view all the answers

What influence have Indigenous peoples had in treaty negotiations in the modern era?

<p>Greater influence compared to the post-Confederation era. (C)</p> Signup and view all the answers

What financial implications do First Nations face related to court recognition of Aboriginal title?

<p>Recognition can be costly and result in significant debts. (A)</p> Signup and view all the answers

In the context of Aboriginal title, what does 'usufructuary rights' refer to?

<p>Limited rights to use land without ownership. (A)</p> Signup and view all the answers

Which of the following represents a critique of the legal framework recognizing Aboriginal title?

<p>It reflects Eurocentric principles marginalizing Indigenous perspectives. (C)</p> Signup and view all the answers

What doctrine operates to prevent provincial laws from infringing on Aboriginal rights?

<p>Doctrine of Interjurisdictional Immunity (D)</p> Signup and view all the answers

Which section of the Constitution Act recognizes and affirms Aboriginal rights?

<p>Section 35 (D)</p> Signup and view all the answers

Before 1982, which level of government held exclusive power to legislate concerning Indians and Indian lands?

<p>Federal Government (D)</p> Signup and view all the answers

In Sparrow, what does the court distinguish between regarding Aboriginal rights?

<p>Rights that are regulated and those that are extinguished (C)</p> Signup and view all the answers

What must the Crown demonstrate if a provincial law infringes on Aboriginal rights?

<p>Consultation and accommodation with the Aboriginal group (D)</p> Signup and view all the answers

What is a criterion of the Sparrow test used to assess the infringement of Aboriginal rights?

<p>Reasonable limitation imposed by the legislation (C)</p> Signup and view all the answers

What has been held to not be included in the core of Indianness?

<p>Labour relations (C)</p> Signup and view all the answers

How are provincial laws of general application treated in relation to Aboriginal title after 1982?

<p>They apply but with constitutional limits (A)</p> Signup and view all the answers

Under what condition can provinces legislate in relation to Aboriginal rights?

<p>If federal jurisdiction does not apply (B)</p> Signup and view all the answers

Which of the following is an example of a provincial law that can apply on reserves?

<p>Highway Traffic Act (A)</p> Signup and view all the answers

What is the core protection for Aboriginal rights derived from?

<p>Section 91(24) of the Constitution Act (C)</p> Signup and view all the answers

What creates constitutional limits on provincial laws pertaining to Indigenous land use?

<p>Section 35 protections (B)</p> Signup and view all the answers

Which factor is not considered by the Sparrow test?

<p>Plan for economic development (D)</p> Signup and view all the answers

Which aspect of Indigenous rights does the principle of cooperative federalism emphasize?

<p>Cooperation while respecting Aboriginal rights (A)</p> Signup and view all the answers

What type of amendments require the unanimous consent of the federal government and all provinces?

<p>Amendments to the House of Commons representation (C)</p> Signup and view all the answers

Which procedure allows the federal government alone to make amendments?

<p>Federal Unilateral Procedure (A)</p> Signup and view all the answers

What must occur before any changes to Indigenous rights and title?

<p>Constitutional conference with First Ministers and Indigenous representatives (A)</p> Signup and view all the answers

Which section allows for amendments that affect only a specific province's legislative powers?

<p>Bilateral Procedure under section 43 (C)</p> Signup and view all the answers

Which type of amendments is described by the 7/50 Formula?

<p>Broad constitutional amendments involving various rights (D)</p> Signup and view all the answers

Which clause allows laws that override certain Charter rights for a limited time?

<p>Notwithstanding Clause (A)</p> Signup and view all the answers

What type of change does the Provincial Unilateral Procedure specifically apply to?

<p>Changes to a specific province's constitution (A)</p> Signup and view all the answers

Which constitutional amendments cannot be opted out of?

<p>Amendments regarding the House of Commons proportional representation (B)</p> Signup and view all the answers

What does Section 35 of the Constitution Act, 1982 ensure regarding Aboriginal rights?

<p>Both federal and provincial governments must respect Aboriginal rights. (D)</p> Signup and view all the answers

In the Saint Catherines Milling Case, what was the key issue at stake?

<p>Provincial regulation of lands covered by treaties. (D)</p> Signup and view all the answers

What did the Supreme Court find in the Grassy Narrows Case regarding Ontario's rights?

<p>Ontario must comply with obligations under Section 35 when taking up lands. (B)</p> Signup and view all the answers

What must governments do according to UNDRIP Article 32.2?

<p>Consult with Indigenous peoples before measures affecting their rights. (A)</p> Signup and view all the answers

What was determined in Haida Nation v. BC regarding the duty to consult?

<p>The Crown has a responsibility to consult regardless of Indigenous claims strength. (C)</p> Signup and view all the answers

How is the Van der Peet Test relevant to Indigenous rights?

<p>It determines if rights existed prior to European contact. (C)</p> Signup and view all the answers

What constitutes a failure in the duty to consult, as seen in Mikisew Cree?

<p>Insufficient consultation process and failure in content. (B)</p> Signup and view all the answers

What is necessary under the General Amending Formula of the Constitution Act, 1982?

<p>Two-thirds of provinces representing 50% of the population need to agree. (C)</p> Signup and view all the answers

What was the focus of the Coastal GasLink Pipeline case regarding Indigenous law?

<p>The recognition of Indigenous law requires executive or legislative acknowledgment. (B)</p> Signup and view all the answers

What was concluded in the Pamajewon Case regarding Aboriginal rights?

<p>Gambling activities were not protected as they weren't integral to the culture. (A)</p> Signup and view all the answers

Which of the following is NOT a pathway for the recognition of self-government rights?

<p>Decrees from international entities. (C)</p> Signup and view all the answers

What does the duty to consult require even for minor infringements?

<p>Consultation must be meaningful and respect Indigenous rights. (A)</p> Signup and view all the answers

What role do administrative boards play in relation to Indigenous rights?

<p>They may be required to perform the duty to consult on behalf of the Crown. (A)</p> Signup and view all the answers

What is one of the main reasons for Quebec's dissatisfaction with the General Amending Formula?

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Which statement best explains the inalienability of Aboriginal title?

<p>Aboriginal title cannot be sold or transferred to anyone but the Crown. (B)</p> Signup and view all the answers

What distinguishes Aboriginal title from normal property interests?

<p>Aboriginal title is a collective right held by all members of an Aboriginal nation. (A)</p> Signup and view all the answers

Which of the following best describes the requirements for proving Aboriginal title?

<p>Continuous physical occupation and communication to third parties of ownership. (D)</p> Signup and view all the answers

What does the Tsilhqot'in Nation case illustrate about Aboriginal title?

<p>Historical occupation can establish the rights of Aboriginal groups. (C)</p> Signup and view all the answers

What was the result of the Haida Nation v. BC ruling?

<p>The Crown had a duty to consult and accommodate the Haida based on the strength of their claim. (D)</p> Signup and view all the answers

Which case determined that gambling activities were not integral to Ojibwa culture?

<p>Pamajewon case (C)</p> Signup and view all the answers

How does Section 35 of the Constitution protect Indigenous peoples?

<p>It protects Indigenous self-governance and land claims. (B)</p> Signup and view all the answers

What does the term 'sui generis' refer to in the context of Aboriginal title?

<p>A unique system that is distinct from the common law. (C)</p> Signup and view all the answers

What principle must the Crown follow when consulting Indigenous peoples?

<p>The Crown must consult honorably, based on the strength of the Indigenous claim. (D)</p> Signup and view all the answers

What is the focus of the Van der Peet test in relation to Aboriginal rights?

<p>Rights must be integral to the culture before European contact and unextinguished by 1982. (B)</p> Signup and view all the answers

What is the basis for the duty to consult Indigenous peoples?

<p>Potential infringement of Indigenous rights and the strength of their claim. (D)</p> Signup and view all the answers

In what way can provincial laws impact Indigenous peoples?

<p>Provinces can enact general laws that impact Indigenous peoples but cannot legislate specifically for them. (C)</p> Signup and view all the answers

What was a key outcome of the Mikisew Cree case regarding consultation?

<p>Insufficient consultation was deemed inadequate even for minor developments. (C)</p> Signup and view all the answers

Which principle must both levels of government respect in relation to Indigenous treaty rights?

<p>Honour of the Crown (B)</p> Signup and view all the answers

What was the main legal issue in the Saint Catherines Milling Case?

<p>Control over timber harvesting (D)</p> Signup and view all the answers

What must consultation with Indigenous peoples ensure, according to Mikisew Cree?

<p>Meaningful consultation even for minor issues (C)</p> Signup and view all the answers

What does UNDRIP Article 32.2 require from states regarding Indigenous peoples?

<p>Consultation before measures affecting their rights (B)</p> Signup and view all the answers

Which of the following was a requirement established by the Van der Peet test?

<p>Activities used before European arrival must be integral (A)</p> Signup and view all the answers

What type of law must the Canadian legal system formally recognize to be applicable?

<p>Indigenous customary law (C)</p> Signup and view all the answers

In the Coastal GasLink Pipeline case, what did the court conclude about Wet'suwet'en law?

<p>It needs legislative or judicial recognition (D)</p> Signup and view all the answers

What factor determines the duty to consult with Indigenous peoples?

<p>The strength of the Indigenous claim (B)</p> Signup and view all the answers

What is a limitation of the constitutional amendment process described in Part V?

<p>Certain amendments have a three-year time limit (A)</p> Signup and view all the answers

What must provinces do if they opt-out of amendments affecting their rights?

<p>Receive compensation (B)</p> Signup and view all the answers

Which aspect of self-government rights can be recognized through judicial acknowledgment?

<p>Cultural practices (C)</p> Signup and view all the answers

What did the Supreme Court rule regarding gambling activities on reserves in the Pamajewon case?

<p>Not all gambling activities are integral to Ojibwa culture (B)</p> Signup and view all the answers

How does the duty to consult apply to modern treaties?

<p>It is critical when Crown lands are transferred for non-native use (D)</p> Signup and view all the answers

What is a crucial observation regarding Section 35's effectiveness?

<p>It has had limited implementation in protecting rights (D)</p> Signup and view all the answers

Flashcards

Aboriginal Title

A broad right, recognized by the Canadian constitution, to land and resources, exceeding the scope of traditional Aboriginal rights.

Delgamuukw v. British Columbia

Landmark Supreme Court case establishing the test for Aboriginal title, focusing on occupation, use, and connection to the land for significant periods.

Van der Peet Test

The criteria used to determine if an activity is an integral part of a group's distinct culture, relevant to proving an Aboriginal right.

Aboriginal Rights

Rights grounded in practices, customs, and traditions integral to a group's distinctive culture, existing alongside Aboriginal title.

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Section 35(1)

Part of the Canadian Constitution (Constitution Act, 1982) dealing with Aboriginal rights and title, defining a subset of Aboriginal rights for particular circumstances.

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Nomadic/Semi-nomadic Groups

Indigenous groups who traditionally move across territories for seasonal resource use, facing complications in proving occupation needed for asserting Aboriginal title given a non-fixed presence.

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Royal Proclamation

A historical document that outlines principles of Indigenous relations but does not cover all Canadian lands

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Tsilhqot'in Nation v. British Columbia

Supreme Court ruling enhancing the understanding of Aboriginal title, building upon the judgment of Delgamuukw.

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Oral histories

Stories passed down through generations, often containing cultural, historical, and legal knowledge.

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Sui generis

Unique; having its own particular nature or character.

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Hearsay rule

A rule in law prohibiting the admission of evidence based on out-of-court statements.

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Van der Peet principles

Guidelines for adapting evidence laws to fairly consider oral histories in Aboriginal title claims.

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Section 35(1) of the Constitution Act

A part of the Canadian constitution that protects Aboriginal title.

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Exclusive use and occupation

The right to control the land and prevent others from using it for most purposes.

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Inalienable except to the Crown

Aboriginal title cannot be sold or transferred to anyone except the government (Crown).

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Collectively held

Decisions about land are made by the community (not individuals).

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Source of title

Rooted in historic occupation and possession

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Continuity of occupation

Present use must show unbroken connection to pre-sovereignty occupation.

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Exclusive occupation

To be shown, occupation that prevented others from using the territory before sovereignty.

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Test for proving title

Requires proving pre-sovereignty occupation, continuity, and exclusivity at sovereignty.

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Historical truth

The factual truth of an event as established through past evidence

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Challenges with oral histories

Difficulty in proving the reliability and accuracy in trial due to conflicts with hearsay rules and traditional court procedures.

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Adapting evidence rules

Requires modification and sensitivity to accommodate uniqueness of Indigenous oral histories.

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Continuity in Aboriginal Title

Proof of Aboriginal title doesn't require an unbroken chain of events, but the present occupation must be rooted in pre-sovereignty times.

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Exclusivity in Aboriginal Title

The group must have intended and had the ability to control the land at the time of sovereignty. Regular use without exclusivity might only support usufructuary rights.

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Crown's Fiduciary Duty

The Crown has a responsibility to protect Aboriginal title and can justify encroachment on it for broader public interest.

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Inherent Limit on Aboriginal Title

Aboriginal title is held for present and future generations, limiting land use to prevent its destruction. Permanent changes are possible, but they shouldn't deprive future generations.

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Doctrine of Terra Nullius

The court confirmed this doctrine never applied in Canada, but the Crown's claim of underlying title upon sovereignty is still controversial.

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Practical Effects of Tsilhqot'in Decision

Limited so far: The BC treaty process is slow, and court recognition of title is expensive. Many First Nations are in debt from negotiations.

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Unproven vs. Established Title

Until recognized through treaty, legislation, or court, unproven title means fewer government obligations. Established title brings more rights and responsibilities.

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Nomadic Title Claims

Nomadic peoples can claim title based on regular use of land, but physical occupation must be sufficient under the law.

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Types of Treaties in Canada

There are pre-Confederation treaties (1764-1867), post-Confederation treaties (1867-1923), and modern treaties (1973-present).

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Power Shifts in Treaties

Pre-Confederation treaties had more Indigenous bargaining power. Post-Confederation, the Crown dominated but Indigenous agency remained. Modern treaties have greater Indigenous influence.

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Compelling and Substantial Objective

To justify infringing on an Aboriginal right, the government needs a valid legal objective. 'Public interest' is too broad and vague.

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Honour of the Crown

Infringing on Aboriginal rights must be consistent with the Crown's promise to respect and protect those rights.

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Justification Examples

Examples of objectives that could justify infringing title include development, infrastructure, environmental protection, and settling populations.

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Provincial Laws and Title

Provincial laws of general application cannot extinguish Aboriginal title. They may only infringe, not wipe out, Indigenous ownership.

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Inalienable

Aboriginal title cannot be sold or transferred to anyone except the Crown (government). Indigenous peoples can't simply sell their land to private buyers.

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What is the source of Aboriginal Title?

Aboriginal title arises from the prior occupation of Canada by Indigenous peoples. This means Indigenous peoples were on the land before British sovereignty was asserted.

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What does 'prior' mean in the context of Aboriginal title?

'Prior' means that Indigenous peoples occupied and possessed the land before British sovereignty was asserted. This signifies their right to the land is based on their earlier presence.

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Communally Held

Aboriginal title belongs to the entire Indigenous community, not to individuals. Decisions about the land are made collectively by the community.

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Content of Aboriginal Title

Aboriginal title gives Indigenous communities the right to exclusive use and occupation of their lands. This means they can use the land for a variety of purposes like hunting, fishing, and traditional activities.

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Inherent Limit

Aboriginal title has an inherent limit: using the land in a way that doesn't destroy its value. It can't be used in a way that makes it impossible for future generations to enjoy.

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Duty to Consult

The Canadian government has a legal duty to consult with Indigenous communities when government decisions might affect their rights and title.

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UNDRIP

The United Nations Declaration on the Rights of Indigenous Peoples emphasizes the rights of Indigenous peoples, including the right to self-determination and the right to free, prior and informed consent. It establishes a global standard for Indigenous rights.

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Self-Government

Indigenous peoples have the right to govern themselves and make decisions about their own affairs. This right is protected under Canadian law.

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Interjurisdictional Immunity

This legal doctrine prevents provinces from making laws that interfere with the federal government's powers, particularly in areas affecting Indigenous peoples.

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Core of Indianness

The core of federal power over Indigenous peoples, including their culture, rights, and land, which provinces cannot intrude upon.

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Provincial Laws of General Application

Laws intended to apply to everyone in a province, even if it has unintended consequences for Indigenous rights.

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Sparrow Test

A test used to determine if a government action unreasonably limits an existing Aboriginal right.

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Justification of Infringement

The government needs to justify interfering with an Aboriginal right, demonstrating it's necessary for a compelling public interest.

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Consultation and Accommodation

Required when governments act in ways that affect Indigenous rights, to find ways to respect those rights.

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Section 35(1) of the Constitution Act (1982)

Part of the Canadian Constitution that recognizes and protects Aboriginal rights and title.

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Section 91(24) of the Constitution Act (1867)

Gives federal government exclusive power to legislate laws regarding Indians and lands reserved for Indians.

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Extinguish vs. Regulate

Provincial laws cannot extinguish Aboriginal rights, like taking them away completely, but they can regulate how those rights are exercised.

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Provincial Power over Land Use

Provinces have the power to regulate land use under their jurisdiction, but this power is limited by the protection of Aboriginal rights.

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Prior to 1982 vs. After 1982

Before the Constitution Act 1982, provincial laws could extinguish Aboriginal rights, but after, this became more difficult.

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Federal and Provincial Cooperation

While the federal government has specific powers relating to Indigenous people, both levels of government should work together to respect their rights.

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What are the ways to amend Canada's Constitution?

There are several ways to amend the Constitution, including the 7/50 formula, unanimity procedure, bilateral procedure, federal unilateral procedure, and provincial unilateral procedure.

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What is the 7/50 Formula?

This process requires approval from at least seven provinces representing at least 50% of Canada's population. It applies to major constitutional amendments like the Charter of Rights and Freedoms and Indigenous rights.

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What is the Unanimity Procedure?

This requires agreement from the federal government and all provinces. It's used for significant constitutional changes like altering the Queen's role or the composition of the Supreme Court.

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What is the Bilateral Procedure?

This involves the federal government and only the provinces affected by the amendment. For example, changes to a specific province's legislative powers.

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What is the Federal Unilateral Procedure?

This allows the federal government to amend its own structure without needing provincial approval. But it can't alter powers protected by other formulas.

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What is the Provincial Unilateral Procedure?

This allows provinces to amend their own constitutions, as long as it doesn't affect broader constitutional issues. For example, changes to the Lieutenant Governor's role.

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What is the Notwithstanding Clause?

This allows the federal government or provinces to override certain Charter rights for up to five years, although it doesn't apply to Indigenous rights.

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How are Indigenous Rights Amended?

Amendments to Indigenous rights require a constitutional conference involving First Ministers and Indigenous representatives. Consent from Indigenous groups isn't mandatory, however.

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Treaty Rights

Constitutional agreements between the Crown and Indigenous nations, often involving land and resource rights.

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What does the 'honour of the Crown' mean in relation to treaties?

It means that the Crown must act in good faith and respect the promises made in treaties with Indigenous peoples, even if they're old.

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What happened in the Saint Catherines Milling Case?

A dispute over timber rights on lands covered by Treaty 3. The Court had to decide who had the power – the province or the federal government.

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Grassy Narrows Case: What did the court decide about Ontario's rights in the Keewatin area?

Ontario has the right to take up lands, but it must follow the Constitution and protect Indigenous rights under Section 35.

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What does the 'duty to consult' mean?

The government must talk meaningfully with Indigenous groups before taking actions that might affect their rights or lands.

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What does UNDRIP Article 32.2 say about consultation?

It states that governments must consult with Indigenous peoples before taking any measures that could affect their rights or territories.

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What's the difference between Indigenous customary law and Canadian law?

Indigenous customary law is based on traditional practices and traditions. Canadian law is a formal system of rules and regulations.

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What happened in Haida Nation v. BC?

The government gave away land rights without properly consulting the Haida people. The Supreme Court ruled the government had a duty to consult.

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What is the Van der Peet Test?

It's a legal test to determine if an activity is a protected Aboriginal right. It must be integral to the group's pre-European culture.

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How can Indigenous self-government rights be recognized?

They can be recognized through cultural practices, land title, modern treaties, inherent rights, and delegated rights.

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Why is the Mikisew Cree case important?

It shows that even minor projects affecting Indigenous lands or rights require meaningful consultation, not just a quick talk.

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What are the general observations about the duty to consult?

Indigenous peoples must act in good faith, but the duty doesn't mean they have to agree. It's a complex process, and Section 35 isn't always enough to protect rights.

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What are the main parts of the general amending formula in the Constitution Act?

It requires agreement from the federal government and two-thirds of the provinces, representing at least 50% of the population. No single province has veto power.

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Why is the amendment process important for Indigenous rights?

Any changes to the Constitution that affect Aboriginal and treaty rights need to be carefully considered and done fairly.

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Study Notes

Aboriginal Title and Treaty Rights

  • Aboriginal title is a broader right than an Aboriginal right; it doesn't require the Van der Peet test.
  • Van der Peet Test: An Aboriginal right must be integral to the distinctive culture, demonstrate pre-contact practice, and be recognizable within the Canadian legal system.
  • R v Adams: Aboriginal title is a subset of Aboriginal rights, distinguishable under the Van der Peet test.
  • Royal Proclamation: Provides principles but doesn't cover all territories (maritime provinces, parts of the north, southern Quebec etc.)
  • Delgamuukw v British Columbia: Indigenous claimed ownership/jurisdiction over 58,000 square kilometers in BC.
  • BC challenged the claim.

Oral Histories in Aboriginal Rights Cases

  • Oral histories are crucial for Aboriginal title claims.
  • Challenges in using oral histories:
    • Traditional courts favor factual evidence; oral histories have broader cultural roles.
    • They often violate hearsay rules (out-of-court statements).
  • Supreme Court guidance: Adapt evidence laws to value oral histories equally. Trial judges need to be generous and consider cultural contexts.
  • Mitchell v. MNR: Principles for admitting oral histories: usefulness and reasonable reliability.

Content of Aboriginal Title

  • Aboriginal title is the right to exclusive use and occupation of land. Uses don't need to strictly match traditional practices but can't irreconcilably conflict with the group's connection to the land.
  • Inalienable: Can only be transferred to the Crown.
  • Collectively held: Land decisions made communally.
  • Source of Title: Rooted in pre-sovereignty occupation and possession.
  • Sui Generis: Unique; arises from pre-existing Indigenous ownership before British sovereignty.

Test for Proving Aboriginal Title

  • Three parts:
    • Must demonstrate land occupation before sovereignty.
    • Continuity between present and pre-sovereignty occupation.
    • Exclusive occupation at the time of sovereignty

Tsilhqot'in Nation v British Columbia

  • The Tsilhqot'in Nation (Athapaskan-speaking group) claimed 438,000 ha as Aboriginal title.
  • Case established continuity & exclusivity criteria for land ownership.
  • Court recognized that the Crown retains a fiduciary duty to Aboriginal peoples. The Crown can infringe upon Aboriginal title if the public interest outweighs the impact on the Indigenous right. Land use changes are possible, but should not destroy the land's value for future generations.
  • The court reaffirmed terra nullius did not apply in Canada and the Crown's claim upon sovereignty didn’t necessarily extinguish preexisting indigenous ownership.

Nomadic and Semi-Nomadic Peoples

  • R v Marshall, R v. Bernard: Nomadic peoples can establish title through regular, defined land use.
  • Title depends on showing sufficient physical occupation.

Treaties in Canada

  • Different periods of treaty making (pre-Confederation, post-Confederation, modern treaties).
  • Shifts in power dynamics between Indigenous peoples and the Crown over treaty negotiations.

Sparrow's Justifiable Infringement Test

  • Test for proving a law infringing upon Aboriginal rights.
  • Measures must be reasonable, not create undue hardship, nor deny the preferred method of rights exercisement.

Impact of Tsilhqot'in Decision

  • Limited immediate practical effects on BC treaty processes.

Aboriginal Title: Key Limitations

  • Lands held under Aboriginal title cannot be used in a way that irreconcilably conflicts with the nature of the land's attachment to aboriginal rights
  • Example: Hunting grounds can't be ruined by mining, cultural or spiritual sites can't be destroyed by development

Other Aspects of Aboriginal Title and Rights

  • Protection under Section 35(1) of the Constitution Act, 1982
  • Balancing modern usage with historical and cultural attachment to land.
  • Flexibility of use: Aboriginal title allows a wide range of uses that respect the land's unique nature.

November 25 Treaty 3 Case Study on Colonial Federalism

  • St. Catherines Milling and Grassy Narrows First Nation: Treaty 3 and dividing jurisdictional powers.
  • Federal jurisdiction over Indigenous peoples is clearly established in section 91(24).
  • Provincial laws must not conflict with the federal power. If they do, doctrine of interjurisdictional immunity can be invoked when federal interests are threatened.
  • Interjurisdictional immunity does not prevent provincial laws of general application from being considered related to existing Indigenous rights.
  • Federalism and provincial laws cannot extinguish Aboriginal rights recognized under Section 35 if the provincial laws are of general application.

November 27 Duty to Consult and Self-Government

  • Duty to consult involves consulting with Indigenous peoples before implementing measures that affect their rights or territories in the process.
  • Cases such as Delgamuukw, Haida Nation, Taku River, Mikisew, Beckman, Chippewas and Clyde River involved the application of these frameworks, highlighting procedural and substantive requirements for consultation.
  • The duty to consult extends to modern treaties as well.
  • Indigenous self-government is recognized via inherent rights, collective land title or modern treaties.

December 2 Constitutional Amendment

  • Part V of the Constitution Act, 1982, outlines procedures for amending the Constitution of Canada, including how to consider Indigenous rights, including amending Indigenous rights and titles.
  • Several amendment formulas exist.

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Test your understanding of Aboriginal title and treaty rights in Canada. This quiz covers key concepts such as the Van der Peet test, important legal cases, and the role of oral histories in claiming Aboriginal rights. Assess your knowledge on these significant topics.

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