Chapter 3 - Environmental Law and Indigenous Peoples

define the term indigenous peoples

a collective name for the original peoples of North America and their descendents

what are the three groups that the canadian constitution recognizes as indigenous peoples

first nations, inuit, and metis

who do the first nations people include

status and non status indians

what is indigenous law

refers to the laws and law making power that indigenous peoples have regardless of the canadian legal system

• flows from the Creator and existed long before the arrival of europeans

• runs parallel to canadian statue and common law

what is aboriginal law

the body of canadian statute and common law relating to indigenous peoples

• addresses whether someone is a status indian under the indian act

• how the ind. rights of indigenous peoples under the canadian charter of rights and freedoms related to the collective rights of indigenous peoples under the consititution

• hunting and fishing rights

• title to land

collective rights definition

rights held by a group (e.g., aboriginal rights to hunt or gather) as opposed to rights held by an individual (e.g., voting rights)

right definition

the constitutionally protected ability to carry out an activity

what were the key documents that provided the foundation for aboriginal law in canada

• the royal proclamation - 1763

• the constitution act - 1867

• the constitution act - 1982

what is the royal proclamation 1763

issued by king george III. it recognized “several Nations or Tribes of Indians” and that “Indian lands” could only be surrendered to the Crown in order to avoid “frauds and abuses” by settlers

what is the constitution act 1867

outlines the jurisdiction of the fed and prov gov’t. section 91(24) provides that “indians and lands reserved for the indians” falls under federal jurisdiction

what is the constitution act 1982

section 35(1) provides that the “existing aboriginal and treaty rights of the aboriginal peoples of canada are hereby recognized and affirmed”

• collective rights

what are other documents that provided the foundation for aboriginal law

• a number of treaties and other agreements - vary considerably

• a number of statutes (e.g., the Indian Act)

title definition

ownership of land; it’s the right to the exclusive use and occupation of the land, the right to choose the uses, within constraints prescribed by the law (such as zoning)

why was the calder v british columbia (1973) case important for aboriginal law

because it brought the issue of land claims to the attention of governments and launched the federal treaty process

why was the R v Sparrow (1990) case important for aboriginal law

• it was the first court decision to test the scope of section 35(1) of the constitution act 1982

• resulted in the sparrow test - determining infringement on aboriginal rights

what are the four questions in the sparrow test

1. can the aboriginal litigants prove the existence of their aboriginal title or rights

2. was the title or right extinguished before 1982

3. can the aboriginal litigants show infringement

4. can government justify its actions

why was the delgamuukw v british columbia (1997) important for aboriginal law

• it clarified what constitutes aboriginal title

• determined a spectrum of constitutionally protected aboriginal rights

• provided guidance on how aboriginal title can be proven

why was the haida nation v british columbia (2004) case important for aboriginal law

• established that government (the crown) has a constitutional duty to consult, and where appropriate, accommodate indigenous peoples (even before rights or title are proven)

why was the tsilhqot’in nation v british columbia (2014) case important for aboriginal law

• supreme court determined that the tsilhqot’in had established title to the land they claimed and british columbia had breached its duty to consult

• clarified issues related to aboriginal rights and title claims: sufficiency of occupation, continuity of occupation, exclusivity of occupation

why was the mikisew cree first nation v canada (2018) case important for aboriginal law

• considered the obligations of the crown to consult with indigenous peoples before passing laws

• determined that the duty to consult only applies to executive action. a duty to consult does not apply to the law making process

why was the saugeen first nation v the attorney general of canada (2021) important for aboriginal law

• one of the first cases to consider how aboriginal title applies to submerged lands

• rejected SON claims for two reasons:

→ SON’s evidence did not satisfy the test for aboriginal title

→ impact of aboriginal title on the public right of navigation

how many treaties were signed between 1871 and 1921

11 “numbered treaties”, where indigenous peoples were settled on reserves. include agreements about reserve land, schooling, annuities, etc.

what do modern treaties in canada generally involve

agreements between provincial and federal governments, often dealing with land claims

why are modern treaties complex

because consultation requirements vary across treaties, the constitution and common law

what does the united nations declaration on the rights of indigenous peoples address 

it’s an international law document that includes 46 articles which address collective and individual rights of indigenous peoples to self determination, cultural practices, religious practices and other practices and traditions

when did the united nations declaration on the rights of indigenous peoples act (UNDRIP Act) receive royal assent in canada

june 21, 2021

why is the UNDRIP Act important in canada

it advances implementation of the declaration and renews the government of canada’s relationship with indigenous peoples

what is the purpose of UNDRIP Act in canada

to affirm the declaration as an international human rights instrument for interpreting and applying canadian law

what framework does the UNDRIP act provide

a federal framework to advance implementation of the declaration

what does the UNDRIP act require the government of canada to do in consultation with indigenous peoples

ensure canadian laws are consistent with the declaration, prepare and implement an action plan and table an annuel progress report

what key measures must the UNDRIP act’s action plan include

measures to address injustices, combat prejudice and discrimination, promote respect and good relations and ensure accountability for implementing the declaration

• also provide measures for monitoring, reviewing and amending the plan itself