Module 6 - Indigenous Law

Indigenous Peoples: Preferred term arising from international law and human rights theories.
Aboriginal Peoples: A colonial legal term linked to Canada’s Constitution and legal context.
Indians: An outdated term from the Constitution and Indian Act.
Métis: Distinct Indigenous group formed from European and First Nations ancestry.
- Importance: Always capitalize Indigenous-related terms in legal contexts.
Crown: Represents federal, provincial, and territorial governments of Canada.
Treaty: Solemn agreements made between nations at a high diplomatic level.

Early treaties and proclamations:
- Royal Proclamation of 1763: Respected Indigenous sovereignty.
- Treaty of Niagara of 1794: Established diplomatic relations.
1800s to 1969: Described as a "dark age" for Indigenous-Canadian relations.
- Legislative impacts: Indian Act (1876), assimilation policies, criminalization of Indigenous cultural practices, and amendments (1951).

Calder v British Columbia (AG), [1973] SCR 313: Established that Aboriginal rights survive assertions of sovereignty, existing inherently without government recognition.
Constitution Act, 1982, Section 35:
- Recognizes and affirms existing Aboriginal and treaty rights of Indigenous peoples.

R v Sparrow, [1990] 1 SCR 1075:
- Background: Ron Sparrow, a Musqueam band member, argued a constitutional right to fish versus federal regulations.
- Outcome: Successful in overturning conviction; rights interpretative obligations.
- Interpretation: Section 35 requires a generous and liberal understanding.
R v Van der Peet, [1996] 2 SCR 507: Sets tests for proving Aboriginal rights:
1. Integral practice to the culture prior to European contact.
2. Reasonable continuity between pre-contact practices and contemporary claims.
- Expanded for Métis rights to include "pre-control" concepts.
R v Powley, [2003] 2 SCR 207: Recognized Métis rights in context of historical culture prior to European control.
Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12: Court ruled that Métis and non-status Indians constitute "Indians" under Section 91(24) of the Constitution Act.

Defined as collective rights, unique and sui generis (Latin: of its own kind) due to the special nation-to-nation relationships.

Definition: The Indigenous nation’s ownership and control rights over specific areas within traditional territories.
Ability to extend to stewardship rights over lands and resources.
Historical case: Tsilhqot’in Nation v British Columbia, 2014 SCC 44: Successful establishment of Aboriginal title.

Affirmed Indigenous nations can assert rights to self-government over lands.
Connection to historical cultural customs vital for success in claims, as seen in R v Pamajewon, [1996] 2 SCR 821.

Repeat reference to Constitution Act, 1982, Section 35: Recognition and affirmation of Aboriginal treaty rights.
Nature of treaties:
- Solemn agreements post-contact between Indigenous nations and European powers.
- Established based on mutual respect and ownership rights.
Royal Proclamation of 1763: Protected Indigenous lands from settler encroachment initiating treaty-making era.
Importance of treaty definitions and interpretations such as Simon v The Queen, [1985] 2 SCR 387: Demonstrated requirements of proof for treaty extinguishments; the need for adherence to original terms.
R v Badger, [1996] 1 SCR 771: Rules on interpreting Aboriginal treaty rights; ambiguities resolved in favor of Indigenous signatories, historical contexts considered.
Principles of Treaty Interpretation:
- Large and generous interpretations; ambiguous expressions favor Indigenous perspectives.
- Technical legal reasoning avoided; should reflect natural understanding at the time of treaty signing.

Modern Treaties: Complex agreements like the Nisga’a Final Agreement, define rights in detail and govern various matters.
Infringement of Aboriginal rights occurs when the Crown seeks resources from Indigenous territories, necessitating justification under the Sparrow Framework:
1. Demonstration of a compelling government objective.
2. Adherence to fiduciary duty and duty to consult Indigenous groups adequately.

Established via Indian Residential Schools Settlement Agreement (IRSSA); aims to address the historical harms to Indigenous peoples from residential schools.
Key findings from TRC Final Report (2015): Memorialization of experiences and legacy, with particular attention to Indigenous voices.
Principles include necessary steps towards redress outlined in 94 Calls to Action, affecting government, legal, and educational sectors.
Example initiatives:
- TRC Call to Action #27: Cultural competency training for lawyers.
- Call to Action #41: Inquiry into the missing and murdered Indigenous women and girls, addressing systemic issues and historical legacies.

R v Gladue, [1999] 1 SCR 688: Case highlighting systemic discrimination and over-incarceration of Indigenous peoples.
Amendments to the Criminal Code in 1996: Section 718.2(e) emphasizes considering Indigenous circumstances in sentencing.
Substantive Equality: Legal principle recognizing unequal impacts of uniformly applied laws on distinct populations, allowing tailored justice for the Indigenous.
Gladue Reports: Reports that underscore systemic factors affecting Indigenous offenders; lack of standardized training for report writers noted.

Addressing systemic discrimination requires ongoing attention to laws affecting Indigenous rights, while integrating cultural understanding into legal practices.
Continuous efforts are essential in promoting and supporting Indigenous communities, recognizing their historical context within the Canadian legal framework, and addressing past injustices.