Class 5 - Lecture ENVI LAW II 2 PDF

Environmental Law II Class 5 Agenda ü Environmental law & Indigenous rights ü Indigenous Treaties Constitutional Framework Indigenous rights, also referred to as Aboriginal rights, are collective rights of distinctive Indigenous communities Aboriginal rights are recognized and affirmed by section 35...

Environmental Law II Class 5 Agenda ü Environmental law & Indigenous rights ü Indigenous Treaties Constitutional Framework Indigenous rights, also referred to as Aboriginal rights, are collective rights of distinctive Indigenous communities Aboriginal rights are recognized and affirmed by section 35 of the Constitution Act, 1982 The Constitution does not define Indigenous rights under section 35, but they can include: Indigenous title or ownership rights to land Rights to occupy and use lands and resources, such as hunting and fishing rights Self-government rights Cultural & social rights Indigenous rights under section 35 vary from group to group depending on the customs, practices and traditions that have formed part of their distinctive cultures Canadian Constitution Act The Canadian Constitution Act has several provisions that directly reference Indigenous peoples: Section 91(24) Section 25 Section 35 Section 35(1) These provisions, in particular section 35(1), set the constitutional framework for the protection of Aboriginal and Treaty rights within Canada Canadian Constitution Act – Section 91(24) Section 91(24) of the Canadian Constitution Act, 1867 grants the federal government jurisdiction to legislate with respect to “Indians, and Lands reserved for the Indians” Although section 91(24) only refers to “Indians”, the Supreme Court of Canada has clarified that the provision applies to all Indigenous people including non-status Indians, Métis and Inuit The federal government has passed several pieces of legislation including: – – – Indian Act Indian Oil and Gas Act First Nations Land Management Act Canadian Constitution Act – Section 91(24) Section 91(24) gives the federal government the jurisdiction to legislate around matters related to the “core of Indianness” This “core” has not been exhaustively defined The minimum content of the core in section 91(24) are those “matters that go to the status and rights of Indians” The Supreme Court of Canada has indicated that the scope of the core of section 91(24) is narrow Canadian Constitution Act - Section 25 Section 25 is the only explicit reference to Indigenous/Aboriginal rights in the Charter of Rights and Freedoms Purpose of section 25 - “protecting the rights of aboriginal peoples where the application of the Charter protections for individuals would diminish the distinctive, collective and cultural identity of an aboriginal group” Section 25 protects three categories of rights and freedoms against Charter claims: (1) aboriginal rights (2) treaty rights (3) other rights or freedoms that pertain to the aboriginal peoples of Canada Canadian Constitution Act – section 35 Section 35 of the Constitution Act, 1982 “recognizes and affirms” the existing Aboriginal and treaty rights of Aboriginal peoples, that is, Indian, Inuit and Métis peoples. Determining what those rights are has been the work of courts across Canada since 1982 The definition does not provide criteria to determine who are the "Indian, Inuit and Metis" peoples Canadian Constitution Act – section 35 Section 35 recognizes two types of rights: Aboriginal rights and treaty rights Aboriginal rights are rights to engage in specific activities in certain places, like hunt or engage in a ceremony, or to occupy land Treaty rights come from agreements between Indigenous groups and the Crown It is important to emphasize that section 35 of the Constitution Act, 1982 only protects Aboriginal rights that existed at the time it came into effect The term, ‘existing’ Aboriginal and treaty rights Prior to 1982, the federal government could extinguish an Aboriginal right through legislation or through signing treaties If the right was extinguished prior to 1982, section 35 cannot revive the right Since 1982, the federal government can no longer extinguish Aboriginal rights Canadian Charter of Rights & Freedoms In the early 1980s, Canada was preparing to create a Charter of Rights and Freedoms Aboriginal leaders and organizations lobbied for the inclusion of Aboriginal rights in the Constitution In 1982 the Canadian government formally recognized Aboriginal rights and enshrined them in Section 35 of the Canadian Constitution The Constitution, however, does not define Aboriginal rights The government stipulated that Aboriginal rights were to be defined in the courts on a case-by-case basis Part II of the Constitution Act, 1982 Part II (section 35) of the Constitution Act recognizes and affirms Aboriginal and Treaty rights Definition of Aboriginal peoples of Canada the Indian, Inuit and Métis peoples of Canada Land claims agreements rights includes rights that now exist by way of land claims agreements or may be so acquired Aboriginal Treaty Rights Agreements between specific groups of First Nations, Métis or Inuit and the Crown (government) Treaties recognize certain rights, such as rights to land and resources Some treaties were signed before Confederation, while others are very recent, but all of them are still in effect Treaty agreements which define specific rights, benefits and obligations for the parties Treaty rights and benefits can include: lands set aside to be used only by a First Nation (reserves) annual payments of money to a First Nation (annuities) hunting and fishing rights on unoccupied Crown lands one-time benefits such as farm equipment, animals, ammunition and clothing Aboriginal Treaty Rights Historic treaties are given a large & liberal interpretation with the sense that would be naturally understood by the Aboriginal group Ambiguities are resolved in favour of Aboriginal group Treaties are interpreted by: Looking at the text of the Treaty Oral history showing the intentions of the parties Documents written at the time as part of the Treaty negotiations Interest of the parties would have been Aboriginal Treaty Rights Non-fulfillment of treaty promises has been the subject of many court cases. There has been debate over how parties have understood the purpose of the treaties The Supreme Court of Canada has said that courts should interpret treaties liberally. Anything that is unclear in the treaty should be interpreted in a way favourable to the Indigenous group In the case of R v Badger (1996) the Court held that oral promises made at the time of the treaty signing were to be considered in interpreting it The Court said in the Ermineskin Indian Band and Nation v Canada(2009) case that it would be “unconscionable” to ignore oral terms of a treaty Environment & Aboriginal Rights Two of the tests laid out by the Supreme Court of Canada in determining whether section 35 protects rights include whether the rights claimed are "integral to the distinctive culture" and whether they are "existing.” For the moment, we are left with the Supreme Court’s requirement to prove that the aboriginal right was “integral” to the culture. The Court has also established tests with respect to the requirement expressed in section 35 that aboriginal and treaty rights are "existing." Modern Treaty Environmental Protection, Regulation & Assessment First Nation Treaty First Nations & Inuit peoples have been practicing environmental protection, regulation and assessment for thousands of years A treaty is an agreement between sovereign nations or states, or international organizations. The treaties we talk about in this course are agreements between the Crown* and Indigenous** peoples in Canada Treaties in Canada include: Historical treaties signed between 1701 and 1923 Modern treaties, also known as comprehensive land claims agreements, signed between 1975 and present day. *What is “The Crown”? The Crown is a term that is used as a convenient symbol for the federal and provincial governments. Historical Treaty Historical treaties were made between 1701 and 1923 Approx. 56 historical treaties were signed between the Crown and Indigenous peoples during this period Historical treaties generally relate to particular territories Include promises to the Indigenous people that the Crown would provide reserve lands and other benefits such as farm equipment and animals, annual payments, ammunition, clothing and certain rights to hunt and fish Treaty Viewpoints: Crown and Indigenous parties often had very different understandings of the purpose and meaning of historical treaties For the Crown, treaties were a way to gain access to land for the purposes of settlement, trade and resource development For Indigenous peoples, treaties were often viewed as instruments of recognition and relationship, whereby the parties agreed to share land and resources Historical Treaty Modern Treaty Known as comprehensive land claim agreements, modern treaties are generally signed in places where Indigenous title and rights had not been settled Treaties provide greater certainty over rights to land and resources Treaties increase the potential for economic development and growth Set out more control by Indigenous treaty holders over the decisions that affect their lives Indigenous leaders often spend decades negotiating treaties Implementing modern treaties so that future First Nation generations will enjoy greater opportunities such as better education, health care, and jobs Modern Treaty Territories Map Modern Treaties Participants Modern treaties are constitutionally recognized and protected in sections 25 and 35 of the Constitution Act, 1982. Constitutional protection means that government cannot interfere with them even by passing a law. Therefore, modern treaties take precedence over other laws and policies in Canada No two treaties manage their environmental priorities in precisely the same way This uniqueness reflects the geographic, cultural and other differences between treaty holders There are generally three parties to modern treaties. Modern treaties are negotiated between: Indigenous peoples Federal government Provincial Crown or a territorial government Modern Treaties Benefits Modern treaties benefit all Canadians Treaties benefit Canada and continue to form a fundamental part of our nation-building. Treaty-making with Indigenous peoples in Canada has altered the political, legal/constitutional, social and economic landscape of the country from coast to coast to coast Treaty implementation has never been more important; negotiated respectfully and implemented meaningfully Modern treaties allow Indigenous governments to become real partners with other governments and industry. Enable Indigenous peoples to ultimately become self-determining and self-sufficient. The positive impact on regional economies has been significant and is happening in all areas or the country. Legal status of modern treaties In legal terms, modern treaties have three separate aspects: They are lists of constitutionally protected rights and obligations They are contracts between Indigenous peoples and the federal Crown, as well as, usually, either the provincial Crown or a territorial government They have the force of statutory law, but prevail over other statutes enacted by the federal, provincial, or territorial governments. Modern Treaties in Different Regions Treaties are negotiated individually and differ from region to region The reason for the differences between them is that each signatory is a distinct people with unique cultural, political, and economic priorities. Canada's modern treaties reflect that uniqueness Indigenous groups can spend years or even decades at the negotiating table, striving for agreement terms appropriate to their specific situations. Unlike historical treaties, with modern treaties Indigenous groups can spend years or even decades at the negotiating table, lobbying for agreement terms appropriate to their specific situations Land Claims Agreement Coalition Land Claims Agreements Coalition (LCAC) is a coalition of modern treaty holders in Canada The LCAC was formed in 2003 Ensures that comprehensive land claims agreements and associated self-government agreements are respected and fully implemented The LCAC is not a legal body/entity or a one-stop shop for modern treaty consultation The LCAC is a coalition of Indigenous governments and organizations that work together The LCAC does not speak for its members; individual members speak for themselves Land Claims Agreements Coalition (LCAC) LCAC formed around 4 principles: 1. Treaties are with the crown, not the federal Department of Indigenous Affairs and Northern Development 2. There must be federal commitment to broad objectives of modern treaties including adequate funding. 3. Implementation of modern treaties must be handled by senior level federal officials representing the entire Canadian government 4. All Independent implementation and review body that would review whether modern realties are achieving their objectives should be established