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| There is a law inherent in existence, waiting to be discovered. Contemporary understanding - fundamental human rights. Historically natural law was christian law. |
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| What is legal, backed by the state - NOT what is right. Secular authority, independent from the church. |
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1) right to own property
2) Right to own a person's behaviour - superior |
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| empty land without people or ownership. If people, they do not 1) have a legal system, 2) incapable/cannot organize one. |
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| some are born to be ruled, others born to rule |
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| those who are fit, do what they can |
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| pope gives men of god control and right to the sword. Infidel has no right to fight - not given to him by pope. |
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| Infidel not inherently wrong, can be made to understand Christ. Continues to reject, then he can be punished. Barring Christian missionaries is wrong, barring Muslim ones is fine. |
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| Indians first, so they get land. Accepting Christ through fear would be sacrilege. If they bar missionaries, they can be punished. If unable to govern, the Spanish can help. |
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| 1600: Prince discovers lands which may or may not be occupied, but belong to him because he is christian. |
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| 1690: Humans need to use land to potential, Indians didn't, so they didn't mix labour with it. They had no law because there were no disputes, Thus it was wasted and Europeans could take it. |
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| 1763: Only crown can negotiate with natives for occupancy and use of any land. Crown is negotiator and retains underlying title, Indians can occupy it. |
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| 1823: Indians cannot transfer their title to land, accepts doctrine of discovery and government holds title to land. Treaties about limited right to occupancy and use. Crown didn't legally have to buy land from them. Entitled occupancy. |
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| 1876: Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves - assimilative. 91-24, federal government legislates indians and lands reserved for indians. |
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| St. Catherine Milling v Queen |
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| 1888: Federal government gave lumber permit to company on treaty land, but province claims (s. 109) they had jurisdiction. Conclusion: treaty eliminated all indian title, thus federal government lost jurisdiction and it was provincial land (they got the money). |
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| 1929: Aboriginal people did not in fact have the capacity to enter into an enforceable treaty |
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| Section 35: all existing treaties and aboriginal rights are protected in the constitution and cannot be unilaterally extinguished. (Cannot be Metis and Indian) |
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| Government understood cede, surrender, release. Cree agreed to share the land. Brings into question the honour of the crown. |
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1887: citizenship qualifications for Indians, Privatized reserves so in 25 years an Indian could sell - very successful. By 1934 - 60% reserve land sold.
1924: Instant citizen. |
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| Created and recognized by Indian Act, land owned by the crown, previously shared a life, annuities and negotiated with the crown. |
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| Male person of Indian blood, belonging to band. His children and wife. Woman member of husbands band. |
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| Indian granted letters patent. Compulsory: women marrying out, degree programs. Voluntary: being deemed worthy upon request. |
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| major changes - Most compulsory enfranchisement eliminated (except marrying out) |
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| compulsory enfranchisement eliminated (C-31) |
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| Certificate of possession |
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| 1951: sell usage rights of parcel of land with CP. Government retains title, can mortgage CPs.Only transferable to other members, but slower because minister signs off on transfered (to limited people). |
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| Shortened process to lease land. Majority of people who show up to meeting + minister of Indian Affairs. Increased privatization. |
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1996: lower transaction costs by cutting out government, bands can develop their own land codes.
Scugog Island: Helped develop economically
Muskoday: didn't strengthen individual property rights
Not all codes equal, no template |
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| indigenous assertion using their own laws to govern their own sovereignty. Insecure system relying on community approval. |
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| member of non-member leasing land help by a certificate of possession. |
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| Payment to FN by government for which no goods or services are received. Primary leverage of the government, they have conditionality. Two types: grants and contributions. Banks don't like these as only revenue. |
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| type of transfer: 19%, need to meet eligibility criteria |
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| type of transfer: 81% highly conditional, requires more resources to manage, shorter term. |
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| First Nation Finance Authority |
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| BC and West Bank First Nations pushed for designated lands to pool resources and make it easier for FNs to borrow. Members are subject to financial oversight - not charity. |
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separated membership from status, allowed women who married out to reattain status as 6(1). Set up rules about passing on status. Critique: band loses membership control.
Sawridge example. McIvor, disadvantages children of marrying out mothers. |
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| legislative void in Indian Act, now not all Indians are entitled to live on reserve, which risks children losing ties to their native community. |
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| Provincial laws apply on reserve if they do not affect the core of indian-ness (traffic) thus provincial matrimonial property laws cannot apply. |
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| recommended 2006 - 2007 allowing provincial rule to apply with specific provisions, or staying with federal laws. There was a lot of objection, influenced S-2. Addressed chronic housing shortage, and need for matrimonial property laws. |
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| Federal and provincial rules apply after one year if band doesn't enact its own rules about matrimonial property. Pro: legislative void, protects women. Con: bad consultation, no inherent indigenous control, band-aid solution to housing shortage, no funding to build codes. |
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| if mother and paternal grandmother are non-indian, you lose status |
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6 - Genetic math
10 - Band list: band can control who can be a member, but not an indian under the
11 - Department list |
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| 1880 - 1990: schools to get indian out of child, assimilative, abhorrent conditions: poor funding, abuse, tuberculosis, cultural genocide. 25% died of disease. Christian mission. 1969: ended partnership with church, 1970s secularization, Children on reserve have more needs. |
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| 2005: common experience (10.000 + 3.000 a year), special compensation for abuse, healing fun, TRC, educate the popualtion |
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| controversial: self-determination? Difference? |
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| Blackfoot political structure, bundle-keepers and spatially organized, used kinship and women - division of labour respected.Bands were hunting units. |
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| The only way forward is treaty rights, difference, and separate. Alfred agrees |
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| Better inclusion and more equal inclusion and citizenship, and was against economic and physical segregation |
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| people changing how they self-identify - huge increase, legislation, legal definition, stigma, urban population |
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| Aboriginal title exists and was from aboriginal law, not the royal proclamation. But this failed on a technicality |
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| Comprehensive Land Claims Policy |
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| continuation of treaties: crown looking for finality. 1973: federal government started the negotiation process. They could have moved on Section 35 to eliminate all title, but didn't (Calder, Political mobilization) |
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| Comprehensive Land Claims |
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| aboriginal rights no extinguished through other means. 1) demonstrate case, 2) government accepts, 3) framework agreement, 4) agreement and principle stage, 5) final agreement/ratification, 6) implementation. Cost comes out of settlement agreement. |
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| claims against infringement on an existing obligation. |
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| Government settlement offer depends on strength of the claim - which the government decides. Both party and judge. |
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1.4 million acres given to children of metis. Given in Scrips or money for scrip.
Manitoba Act: Section 31 -> feds divided 1.4 million acres, Section 32 -> feds got part of the title |
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1996: Aboriginal right 3 conditions:
1) Marked as distinctive (characteristic)
2) Ancestral practice
3) continuity between pre-post contact
Discounts adaptability, Metis identity is only post-contact.Violates self-determination. |
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| 2003: Altered van der peet to include post contact. To be metis, need to self-identify, have ancestral connection and be accepted.Their rights can be defended by Section 35 |
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| One party holds interest for the benefit of the other with a duty of loyalty. 1) Trustee has administrative power, 2) beneficiary doesn't have power or discretion, 3) Trustee has a right to the legal interest |
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| 1872: Metis got scrips and could sell them, thus they have no land base |
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| History of Fiduciary duty |
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1982: hunting now right
1982: Guerin: crown had fiduciary duty in land surrender
1990: Sparrow: general fiduciary duty fo the crown
2002: fiduciary only with specific recognizable interests
2013: No fiduciary duty, has a honour of the crown - obligation to act diligently |
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S 91.24 - Metis and Non-status are indians for the purposes of S.91.24 (federal responsibility) but no fiduciary duty
So are eskimos |
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| Indians for the purposes of S. 91.24 |
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| Major inuit mobilizing voice in the 1960s, first President of Inuit Tapitisat of Canada |
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to meet copyright standards:
1) original
2) fixed form
3) life of author + 50 |
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| Natural and Legal slavery |
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| Pope gave Portuguese dominion over africa if they spread the word of Christ. |
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Treaty making:
American: easier to feed them than fight them, treaty making was pragmatic.
Canada: treaties unquestioned practice, Ojibway were politically active, pushed crown to negotiate.
Railway and Budgets were motivators for both sides |
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Bill C-31 violates bands right to control membership (S. 35).
Sawridge: Reacquired women less concerned with community welfare. debate over 'original' versus 'acquired' values of bands. C-31 act of colonialism. |
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| C-31: Mothers must disclose paternity to qualify their children for full status - which is cultural trauma and assault on matrilineal culture. Law makes persons and it is attempting to remake aboriginal identity. |
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| Enduring injustices need to be addressed by collective memory. It is key to group pride and dignity, raises collective versus individual debates and raises the question of who is really responsible? |
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| Politics of care were used to advance colonial objectives of assimilation through residential schools. Now aboriginal mothers are learning the culture as they teach it to their children. Should christianity be banned? Individual versus community autonomy. |
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| Not every experience in residential schools was negative. The whole truth is the real truth and selective memory is not a building block of harmony |
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Calihoo: play into existing governmental structures, fuller and more equal citizenship
Tootoosis: No future outside treaties and they should remain separate from non-status or metis, who would make them closer to the colonizer. |
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| Collaboration with colonial government not supportable in traditional society. Cultural ills are from the colonizer, the rights of the individual are threatening to the rights of the collective |
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1991: British Columbia Claims Task Force, 19 recommendations. NOT about historical wrongs, 1996: BC treaty commission act, only had moral suasion. Meant to be neutral funding for aboriginal groups pursuing land claims.
1) present claim, 2) assessing readiness, 3) negotiate on issues, 4) agreement happens, 5) finalization, 6) implementation
Treaties are reconciliatory or future facing? Process only as strong as political will, definition of FN, vagueness of recommendations, loan based funding... |
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| Legibility of claimant groups impacts success of ongoing negotiations. Band council system gave recognized political structures, social service delivery strengthened self-management. Treaty making, Indian Act, reserve policy, social services and land claims solidified identity of claimant. |
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| Aboriginal service providers through UAS should group together to operate legislative/jurisdictional authority over urban aboriginal populations. |
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| Huge increase in aboriginal identity population: fertility, legal changes, ethnic mobility. Youth are most mobile, women and men face different migratory issues. Low income, low home ownership and marginalization |
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| Aboriginality isn't about urban or reserve, Congres of Aboriginal Peoples represents urban aboriginals more than AFN |
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1927: illegal to engage in claims activity (allowed 1951)
1969: white paper - large political organizational response - largely dependent on government funding. Leaders became out of touch at local level thus BC Association fo Non-Status Indians - again largely based on government funding. |
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85% Inuit - government wanted to be established based on aboriginal membership and priorities
They need better programs of bilingualism in north so people can get educated in the south and have capacity to work in the north - language key to culture. Need to build the bureaucracy into the culture. |
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| Manitoba Metis Federation v Canada |
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| Crown didn't exercise duty well in children's grant, don't owe them fiduciary duty because it is statute barred by laches and limitations |
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| 1991, the first nation refused to accept the building of a golf course, violent, led to federation inquiries act |
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| specific claims tribunal act |
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| 2008: cash only, dictates who the parties can be, and the kinds of claims. 6 full time members, decisions are binding, minister appoints judges, 150 million maximum, decisions can be appealed. Choose between courts or tribunal. |
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| Colonialism destroyed natives, and impeded their ability to participate in the economy, took away fishing rights, and trap lines, kept them segregated and led to 10 times higher infant mortality. Historically, the troubles were blamed on the natives themselves. |
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| Tom Flanagan, Christopher Alcantara, and Andre Le Dressay |
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| FNLMS (1999): to allow FN to develop locally sensitive land codes that mitigated the economic drag associated with the Indian Act. Hope to make reserves attract more investment |
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| Metis is a colonial census construction. What having a racial rather than indigenous national construction for the Metis means is that an individual can self-identify regardless of the terms their ancestors would have collectively used to self identify - looking at them as a race strips them of national political or historical roots. |
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| , addressing rights between spouses during marriage and upon marriage breakdown. Two main categories: Real property which are things permanently attached to land such as a house and Personal Property which are movable things like cars, furniture and money |
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| Marie Battise + James Henderson |
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| indigenous: 1) priority in time, 2) distinctive, 3) self-identification, 4) experience of subjugation. Ownership of heritage should include both individual and collective components, be retroactive, multigenerational and descendants of the authors own the knowledge. It should be based on customs of group involved, and it essential for perpetuation. |
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| culturally recognized ceremony of spatial, oral and singing to transfer rights to: names, songs, hunting, resources, bundles, payed for by SIIKAPISTAAN |
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| culturally recognized ceremony of spatial, oral and singing to transfer rights to: names, songs, hunting, resources, bundles, payed for by SIIKAPISTAAN |
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