Unit 3 Test Review - Law PDF

TEST REVIEW: law unit 3 UNDRIP - A list of rights created by the Indigenous population, describes as the minimum standards for the survival, dignity and well-being of Indigenous peoples globally - Emphasizes Indigenous rights to maintain cultures - Free, prior, informed consent: req...

TEST REVIEW: law unit 3 UNDRIP - A list of rights created by the Indigenous population, describes as the minimum standards for the survival, dignity and well-being of Indigenous peoples globally - Emphasizes Indigenous rights to maintain cultures - Free, prior, informed consent: requires states to consult Indigenous peoples because implementing measures that will affect them - UNDRIP is a declaration, ot legally binding document Section 35 - Section 35 of the Constitution Act, 1867 explicitly recognizes and affirms Aboriginal and treaty rights - Section 35 also indicates the term Aboriginal includes First Nation, Inuit, and Métis peoples of Canada. Royal Proclamation - To prevent further conflict between settlers and Indigenous Nations - Defined land west of established colonies as “Indian Territories” where First Nations people “should not be disturbed or molested” by settlers. Terra Nullius - “A territory without a master.” - Used as a term in public international law to describe a space that can be inhibited but does not belong to a state, meaning the land is not owned by anyone Doctrine of Discovery - Established a religious, political, legal justification for colonization and seizure of land not inhabited by Christians Turtle Island - The name for the lands now known as North and Central America Ceded and unceded territory - Ceded- Surrendered land to the crown - Unceded- Surrendered land to the crown Indigenous and Aboriginal Law - Indigenous law refers to systems of rules and traditions that come from within Indigenous communities - Aboriginal law is a set of rules made by courts and lawmakers that deals with the rights of Aboriginal peoples and their connection with the government. Statehood and nationhood - Statehood- The status of being a recognized independent nation - Nationhood- The status of belonging to a nation Sovereignty - Supreme power or authority over itself or another Aboriginal title - The inherent Aboriginal right to land or a territory Métis, Inuit, First Nations, band - Métis- People of mixed European and Indigenous ancestry - Inuit- Indigenous people of the Arctic  - Band- A body of Indigenous people for whom the government had set aside land and money for use - First Nations- Has come to replace the word ‘band’ Dispossession vs. surrender - Dispossession- the action of depriving someone of land, property or other possessions - Surrender- the voluntary termination of treaty right Extinguishment - The termination of a treaty right by a colonial or federal government - this is no longer possible due to s. 35 of the constitution Infringement - Limitation by a government of a treaty right - Infringements are only valid if they can be justified by a test developed by the Supreme Court of Canada Collective rights - Collective rights held by a group of people instead of individual rights Pre-Confederation treaties; Numbered treaties; modern treaties - PRE CONFEDERATION- Two treaties- Robinson-Huron and Robinson-Superior treaties. (1725-1867) - NUMBERED- Eleven treaties in total (1871-1921) - MODERN- Treaties negotiated after the 1970s, Hereditary chiefs - Leader within Indigenous communities in Canada who inherit their titles through family lineage rather than being elected Blockade doc: Gitxsan & Wet'suwet'en - A white family moves into a house on the Gitxsan clan’s territory - The lumber workers were mostly Indigenous peoples Indian Act - The primary law the federal government used to administer Indian status White Paper and Red Paper - The white paper proposed to eliminate Indian status, the department of Indian affairs, and the Indian act and integrate Indigenous peoples into colonized society without any special rights or laws - The Red paper was created as a response to the white paper, basically arguing against getting rid of special rights and laws - The white paper was rejected Bill C-262 - An act to ensure that Canadian laws are in harmony with the rights of Indigenous peoples Fiduciary duty - A nature of trust - The duty a government had to not take advantage of their power during dealings Self-determination - The legal right of individuals to determine their own future within the global system. Duty to consult - When the Crown contemplates a decision that could have an effect on a Aboriginal right or title, the crown must consult the Indigenous groups and take their interests into account. Free, prior, informed consent - FPIC is an inherent right of Indigenous peoples and helps ensure their survival, dignity and well-being Land Back - Land back is reclaiming Indigenous jurisdiction - Land back is an Indigenous led-movement Idle No More  - An Indigenous led social media movement began from the protesting Bill C-45 - 2012 - Represented widespread movement to both safeguard the environment and respect Indigenous sovereignty Cases: R. v. Lavell - In 1970, Jeannette Lavell lost her Indian stautus after marrying a non Indigenous man, due to the Indian act section 12 - Lavell argued the law violated the Canadian bill of rights by discriminating based on sex (men do not lose their status) - The case was initially dismissed in county court but later won in federal court - SCC ruled in 1973 that the Indian act was not valid under the bill of rights - Bill c-31 repealed section 12, restoring Indian status to many women R. v. Badger, 1996 - Three Cree men under Treaty 8 were charged under the Wildlife Act while hunting for food on land surrendered to canada but privately owned - Mr Badger was charged for hunting moose out of season and the other two men were charged for hunting without a license - They argued the Wildlife Act infringed on their constitutional right to hunt food under Treaty 8 - This case applied the sparrow test for infringements on treaty rights, reaffirming that the Crown must honour its treaty promises with Indigenous nations. Calder v. Attorney General of British Columbia, 1973 - Calder case recited Aboriginal title as a common law right, indecent of the 1763 Royal Proclamation - Influenced Canadian and BC governments to start land claim negotiations with the Nisga’a Guerin v. The Queen, 1984 - Negotiation of lease for Musqueam land to be sold to a golf club - Court ruling found fiduciary duty (trust relationship) between the Crown and Indigenous communities - The Fiduciary duty was not upheld in this case R. v. Sparrow, 1990 - Ronald Sparrow was charged for using a fishing net longer than permitted, he argued Indigenous peoples had the right to fish and the net restriction was invalid - The court ruled that doubts about what falls into s. 35 should be resolved in favour of Indigenous peoples. Delgamuukw v. British Columbia, 1997 - Gitxsan and Wet'suwet'en claim for Aboriginal title over their land in BC - The court established criteria for Indigenous peoples to ask for land back - Chief Justice Lamer stated the Crown must recognize oral history as valid evidence for a claim R. v. Marshall, 1999 - Donald Marshall jr, a mi'kmaq fisherman was charged with fishing and selling out of season - He claimed 1760 treaty gave mi'kmaq and maliseet rights to fish and hunt - Supreme court ruling agreed with Marshall Tsilhqot’in decision, 2014 - 1992, construction began on a bridge at Henrys crossing in Tsilhqot'in territory which would damage the habitat of wild horses - The trial began in 2002 and lasted five years - Special sittings were held after sundown for cultural appropriateness - The Tsilhqot’in argued that the logging and construction infringed on their Aboriginal rights to hunt, trap, and use their land - The infringement was deemed not justified - The crown argued the claim was an ‘all or nothing’ approach and the Tsilhqot’in people couldn’t prove full occupation of the land as they lived nomadically before treaties - The Court established the “Postage stamp” theory, which allowed Indigenous groups to claim land they lived and could prove but not the entire area without proof. The court of appeal agreed with this theory but rejected the ‘all or nothing’ argument