Aboriginal Law - LGS2040 Exams Practice Guide 2025-2026, Exams of Law

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Aboriginal Law - LGS2040 Exams Practice Guide 2025- 2026

history - party of the treaty - first nation has selfgov't -ratified at Niagara - Niagara had been often overlooked - proclamation ircaty of Niagara rights persisted throughout the carly colonization of Canada CORRECT ANSWER - proclamation als that one cannot interpret its meaning using the written words of the document Legal History from a First Nation Perspective alone - proclamation got reconstructed due to their symbols - changed proclamation to a culture aspect rather than agreements Historical Background to the Royal Proclamation & the Treaty of Niagara - CORRECT ANSWER-- mix belweon native & non-native lead Lo the formation Lo regulate land, resourees & jurisdiction - principles were developed through experience - lifestyle for aboriginals in relation to the great lakes was altered - supported the French in their fight to take over - aboriginals were threatened by the English but would fight for their rights - English failed to associale some of the fundamental rights of the first nations - co-existence between the two The Constitution Act 1982 in regard to aboriginals their land CORRECT ANSWER— rights to - ability to govern themselves - aboriginals went to British Courts - what is an aboriginal right? Section 33 (1) - CORRECT ANSWER-the existing aboriginal and treaty rights of the aboriginal peop ecognized & affirmed Section 3 (2) - in this act “aboriginal peoples of Canada" ineludes the Indian, Innit. & peoples of Canada - section of the constitution for aboriginal peoples rights - outside the chartor rights Section 35 only protects what? - C' ER -- oxisling rights -ex. regulate the amount of fish caught What is an existing right? - ER--a right that arises from a previous practice Lhal. hasn’L been taken away -aright that has been proved prior to 1982 & not taken away by a statute - right to carry on about aboriginal custom or practice - lots of protection - Sparrow Case ORRECT ANSWER-gov't can still override aboriginal and another one? Fundamental Questions - CORR! aboriginal people? - is this fair? race-based law? - what is the extent of aboriginal rights? - do they override others’ legal rights (property & equally rights)? - why should the courts address decades or centuries old rights claims today? - back in 1850 we set aside land for the first nations but it can not be proven that they did not get the fill amount that they were promised Fundamental Q's: Why “different” legal rights for aboriginal people? - A. don’t. ‘ER-some rights in the constitution thal Aboriginals got thal. olhor Canadians Fundamental Q's: What is the oxtent of Aboriginal rights? - CORRECT ANSWER-what do the rights in section 35 of the constitution act amount to? Fundamental Q's: Why should the courts address decades or centuries old rights claims today? - CORRECT ANSWER-rights that were long in the pa violated & wrong doings that happened Fairness Questions from Indigenous Perspectives - C ER -- by what legal right does Canada exercise jurisdiction over indigenous peoples? - by what legal right did settlers obtain land in areas where no treaties ever signed? - where treaties were signed, has Crown fulfilled their spirit & intent? - is the current sharing of resources just? -are Ab. rights processes fair & timely? - generally indigenous people don’t get a share of the resources that are taken off their land Faimess Questions from Indigenous Perspectives: By what legal right does Canada EC indigenous people were concurred so we are not ruling them based off of conquest, no exercise jurisdiction over indigenous peoples? - --no war were ircaty was signed - from an indigenous perspective, why does someone in Ottawa get to make these decisions and why can’t we? Fairness Questions [rom Indigenous Perspectives: Aro Ab. rights proce: - CORRECT ANSWER — usually take: 3.9 years - this leads Lo people gelung upset & frustrated The Different. Legal Status of First Nations People in Canada? - CORRECT ANSWER-- aboriginal peoples are 4% of Canada’s population & rising: 1.5 million in 2011 - among these, some 315,000 live on reserve - legal handicaps imposed by federal gov't: (under the law) -all restricted by the Indian Act RSC 1985 (first created in 1876) Different Legal Status of First Nations People in Canada: Legal Handicaps Imposed by Federal Gov't - autonomy to write last will & testament? - freedom to sell house to any buyer? ses fair & timely? Aboriginal Life Chances Today - CORRECT ANSWER —- 6x the chance of being incarcerated in federal prison (2013) - suicide rate for Ab. boys 5x as high, for girls 7x as high - life expectancy 5 years less for Ab. women, 6 years less for men - reserve schools receive 35% less tax money per student (for books, teachers & other resources) - UN Human Development Index 2013L Canada ranked 8th Indian reserve communities 7énd (lower than Libya) Canadian law has a key role in what? - -bringing about current situation Until 1952: The Indian Act- CORRECT ANSWER -- defined “person” as anyone other than an indian - prohibited traditional ceremonies - prevented bands from hiring lawyers for land claims - lead to the largest tort law suit-- survivors of residential schools Canadian Laws Also - C (until 1960) ‘R -- denied the federal vote to status indians - permitted aboriginal children to be forced to attend boarding (residential school) where not allowed to speak their language & abuse rife Law's Evolution: Now Recognize Historical Promises - CORRECT ANSWER -- since don original occupation of Canada 1982, constitution and case law recognize rights bas - to understand why, need to understand Canada’s historical relations w/ aboriginal peoples Canada at Contact - CORRECT ANS empty country - they arrived to communities and people who had survived there for centuries Fur Trade Routes - Early 1609s - trades ‘R-- first nations selling a lot of fur - there were not only people here, but there were thriving economies as well Treaty of Magara: 2 Row Wampum Belt pt. 1 - { ANSWER -- Britain takes control over Canada - British invited first nations leaders to come to a meeting at Niagara to make an agreement of co-existence - British crown made these wampum belts, which are traditional indigenous memorabilia that represent co-existence - purpose rows running in parallel, meaning that Britain & First Nations would co-oxist with each other w/out running into conflict (vould not try to control the other) - Brilain’s inucntions were originally pure, wanted Lo pcacchully co-exist - military reasons & practical reasons for Britain to realize they needed to have a peaceful relation w/ people of these lands Treaty of Niagara: 2 Row Wampum Belt pt. 2- CORRECT ANSWER --+ Aboriginal Relations in Canada- Royal Proclamation 1763 + And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests... We do... strictly enioin and require, thal no private Person do presume Lo make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where We have thought proper to allow Settlement While treaty making continues, Canadian courts decided that Canada’s treaty promises are what? - unenforceable if they conflicted w/ any statute or regulation (hunti While Homestead Acts provided free land to immigrants, property interests of Ab. people were what?- CORRECT ANSWER-frequently ignored -- freeing their land for n BC wher peoples who lived there setllement c of the provinee was scltled w/out the consent of the Ab. obligations but held no legal effect - Canada looked at is as better to have Europeans on the land than first nations -all changed w/ constitution act. 1982 Gov't say these trealics as moral obligations bul icld no legal effee ANSWER-- parliament can do what they want -not paying attention to treaty promise All changed w/ Constitution Act 1982 and... - CORR got legal affect .NSWER-- when the treaty -up until 1982 it was unjust Geurin v Canada (1984) - { ¢-* Musqueam (first nations) surrender land for lease o Wanted to lease out the land as a gold course o Government agreed with firstnations what the terms would be o First nations surrendered the land to the government o Government did no stay with the treaty, and the first nations ended up owing the government 10 million o First nations can not talk to the gold cource directly o Government didn’t even tell the first nations that the agreement changed, and didn't even give the first nations a copy of the lease o The government can make decisions on the first nations behalf * Canada signs much less valuable lease + Musqueam say Canada violated legal duty * Canada says it has no legal duty, only political duty re lands surrendered + Does the government have the ability to act in the best interest when a first nations surrendered land to them? o Can they do what ever hey want with the land or do they have a legal obligation » What is the legal principle that the government sets out? Guerin v Canada Ruling - CORRECT ANSWER- + Gov't must act with utmost loyalty 1o (cannal oxploit) Band in dealing with surrendered land + It has trust-like, fiduciary duty + CFido*: I trust) reserve government not allowed to ignore oral terms agreed with Band in dealing with » Gov't behavior was unconscionable + Didn't scck Band’s approval re changes + Didn't provide lease until 12 yrs later + Liable for $10 million in damages + The ratio of the cause: court ruling - Fido": I trust) Guerin Ruling pt. 2 Smaller - CORRECT ANSWER -- Here, government not allowed to ignore oral terms agreed with Band in dealing with reserve - Gov't behavior was unconscionable - Didn’t seek Band's approval re changes - Didn’t provide lease until 12 yrs later - Liable for $10 million in damages What is an “existing aboriginal right"?- CORRECT ANSWER - R v Sparrow the first. case to answer this question - An “existing right” is the right to carry on an aboriginal custom or practice ina conlomporary inanner, provided: - Integral to the group's culture at time of first contact with Europeans - Nol clearly extinguished by plain legislation before 1982 What was the first case lo answer the question of whal an “cxisling aboriginal right” is - R v Sparrow Can Gov't Violate Rights?- CORRECT ANSWER - R v Sparrow: - yes, if they prove they met a 2-part Lest” - That they had valid legislative objective (“compelling and substantial") not just “in public interest”; and =v acted consistently with their trust-like relationship with the Aboriginal group, lhal is, hey interfered with the right as litllc as possible, consistent wilh the honour of the Crown. - Later cases - and govt must show it consulted in advance with the Aboriginal group claiming a right and, if appropriate, accommodated their interests and concerns. According to the 2-part test the federal and provincial gov't's must what? - CORRECT Sparrow said Section 35 Rights must be proved... .- CORR. ER -- case by case and community by community - thus far, mainly hunting and fishing practices have been recognized by the courts -not just First Nations, but Metis and Inuit communities enjoy aboriginal rights protected by s. 35. Aboriginal Title: A Special Kind of Aboriginal Right - English Common Law - CORRECT ANSWER -adverse possession over longthy time ercated Lille Aboriginal people when Crown asserted sovereignty in area - Where no treaty ever signed, Aboriginal title may still exist, as found in the Tsilhgot’in case Where no treaty ever signed, may aboriginal title still exist? - C as found in the Tsilhgot’in case Effects of Aboriginal Title - CORRECT ANSWER -- aboriginal title is a s 35 Aboriginal right. - it gives right to control land and enjoy its benefits - sill only transferable lo the Crown, and musi. be kept intact for future generations - estimated federal liability:* $9.4 billion ( March 2006) Outstanding Land Claims - C Aboriginal and Treaty right - clarifying jurisdictions over Aboriginal peoples (fed., prov., Aboriginal) -cans. 35 and SCC jurisprudence provide tools for survival of Aboriginal societies? Indigenous “Common Law"? - CORRECT ANSWER McLachlin J in Van der Peet (1996 SCC): "running through this hista a golden d—the recognition by the common law of the ancestral laws and customs of the aboriginal peoples who occupied the land prior to European settlement Resolving Rights Dispute - CORRECT ANSWER -3 possible options Resolving Rights Dispute - 3 Possible Options - -- litigation -negotiation - slalulory proc: ox. resolve negolialion impasses through noutral rulings of tripartite body Advantages and disadvantages of each, given agreed goals? (previous q card) - Ci ANSWER -noates?