Environmental Law and Indigenous Peoples

What is Indigenous Peoples

Collective name for the original peoples of North American and their descendants

3 groups of indigenous peoples recognized by the Canadian Constitution

First nations

Inuit

Metis

First nations people include:

Status and non-status indians

How many first nations communities are in Canada? How many people?

Over 630 first nations communiteis whicgh represent more than 50 nations and indigenous languages

1.8 million people, 5% of total pop

What is indigenous law

the laws and law-making powers that indigenous people have regardless of the Canadian legal system

Indigenous laws flow from the creator and existed long before colonization, run parrellel to Canadian statute and common law

Aboriginal Law (different from indigenous law)

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

• Whether someone is status Indian under the Indian Act

• How individual rights of Indigenous peoples under the Canadian Charter of Rights and Freedoms relate to collective rights of indigenous peoples under the constitution????

• hunting and fishing rights

• title to land

Key constitutional, statutory, and treaty documents

Royal Proclamation - 1763

Constitution Act 1867

Constitution Act 1982

Other treaties and agreements

Other statutes (eg. the Indian Act)

What is the royal proclamation 1763

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

Constitution act 1867 regarding ingienous peoples

provides that “indians and land reserved for the indians” falls under federal jurisdiction

constitution act 1982 regarding indigenous people

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

Common law things?

• Calder v British Columbia (1973)

• R v Sparrow (1990)

• Delgamuukw v British Columbia (1997)

• Haida Nation v British Columbia (Minister of Forests) (2004)

• Tsilhqot’in Nation v British Columbia (2014)

• Mikisew Cree First Nation v Canada (2018)

• Saugeen First Nation v the Attoerny General of Canada (2021)

Calder v BC (1973)

Brought the issue of land claims to the attention of gocts AND launched the ferderal treaty process

R v Sparrow (1990)

First court decision to test the scope of section 35(1) of the Constitution Act 1982

Result: the “sparrow test” determining infringement on aboriginal rights

Sparrow Test 4 pieces

1. Can the Aboriginal Litigants prove the existance of their Aboriginal Title or Rights?

2. Was the Title or Right Extinguished before 1982

3. Can the Aboriginal litigants show infingement?

4. Can the govt justify its actions?

Delgamuukw v British Columbia (1997)

• Clariified what constitutes Aboriginal title

• determined a spectrum of constitutionally protected aboriginal rights exists

• provided guidance on how aboriginal title can be proven

Haida Nation v British Columbia (Minister of
Forests) (2004)

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

Tsilhqot’in Nation v British Columbia (2014)

Supreme court determined that the Nation had established title to the land they claimed, and BC had breached its duty to consult

Clarified issues related to aboriginal rights and title claimes

• sufficiency of occupation

• continuity of occupation

• exclusivity of occupation

Mikisew Cree First Nation v Canada (2018)

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.

Saugeen First Nation v The Attorney General of
Canada (2021)

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

• Rejected SON claim for two reasons

  • SON evidence did not satisfy the test for aboriginal title

  • impact of Aboriginal title on the public right of navigation

How many numbered treatires were signed between 1871 and 1921

11 were signed between then when indigenous peoples were settled on reserves, incliding agreements about reserve land, schoolign, annuities. etc.

What do modern treaties look like?

Entered into by provincial and federal governments, tend to deal with land claim agreements

Important to consider consultation requirements in different treaties, the constituion, and common law, which can be extremely complex.

What did UN declaration on the rights of indiegnous people address?

collective and individual rights of indigenous peoples

• to self-determination

• cultural practices

• religous practices

• other practices and traditions

International Law and indigenous peoples

On June 21, 2021, the UN declaration on the Rights of Indigenous Peoples Act recieved Royal Assent and immideiatly came into force

This legislation advances the implementation of the declaration as a key step in renewing the govt of Canada;s relationship w indigenous peoples

What does The UNDRIP act purpose?

Purpose is to affirm the declaration as an international human rights instrument that can help interpret and apply canadian alw

also provides a framework to advance the implementation of the declaration at the federal level

What does the UNDRIP act require the govt of canada to do in consultation and cooperation with indigenous peoples?

• ensure laws of Canada are consistent with the declaration

• prepare/implement an action plan to achieve the declarations objective

• table an annual report on progress to align the laws of canada and on the action plan

What does the UNDRIP act make sure that action plans include?

measures to:

• to address injustices, combat prejudice and eliminate all forms of violence, racism and discrimination against Indigenous peoples, including elders, youth, children, persons with disabilities, women, men and gender-diverse and two-spirit persons
  • to promote mutual respect and understanding, as well as good relations, including through human rights education
  • related to the monitoring, oversight, follow up, recourse or remedy or other accountability with respect to the implementation of the Declaration
  • This action plan must also include measures for monitoring the implementation of the plan itself and for reviewing and amending the plan