Aboriginal Peoples and the Law

Course number: LAW 3310

A study of the laws relating to Aboriginal Peoples in North America from the colonial period to the present. Special emphasis will be given to aboriginal rights, hunting and fishing rights, the legal aspects of Indian Treaties and the Indian Act. A more general treatment will be given to a study of Aboriginal Peoples’ relationship to civil and criminal law in modern Canadian society.

COURSE CONTENT

A study of the laws relating to Native Peoples in North America from the colonial period to the present. Special emphasis will be given to aboriginal rights, hunting and fishing rights, the legal aspects of Indian Treaties and the Indian Act. A more general treatment will be given to a study of Native Peoples’ relationships to civil and criminal law in modern Canadian society.

PRACTICAL IMPORTANCE OF THE SUBJECT

As you may be aware, the Canadian Constitution confers a unique constitutional status on Canada’s Aboriginal people.

1. For example, s.91(24), of the Constitution Act, 1867, confers on Parliament legislative jurisdiction over “Indians, and lands reserved for the Indians.” Pursuant to this authority the federal parliament has enacted the Indian Act, a statute of more than 120 sections which deals with a myriad of matters which would otherwise be dealt with for other people pursuant to provincial law – e.g. devolution of estates and education. In addition, there are literally thousands of regulations promulgated pursuant to the Indian Act dealing with various matters such as, Indian Band elections, Indian Band Council procedures, Indian referenda, Indian reserve traffic regulations, Indian timber regulations, Indian health regulations, Indian mining regulations, and the like.

2. In 1982, the Constitution Act, 1982 made express provision as follows:

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and MJtis peoples of Canada.
(3) For greater certainty, in subsection (1), “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to make and female persons.

35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the “Constitution Act, 1867”, to section 25 of this Act or to this Part,

(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and,
(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.

Section 35 of the Constitution Act, 1982 has generated literally hundreds of law suits both Civil and Criminal. (To date, only one – R. v. Sparrow – has been decided by the S.C.C.; but the `line-up’ is a long one.)

3. In addition, Indians on the Prairie Provinces are entitled to special hunting and fishing rights as granted by the Natural Resource Transfer Agreements as follows:

In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them of hunting, trapping and fishing game for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.

4. There are several treaties entered into between the Imperial government and Indian Bands, and the federal government and Indian Bands, which treaties are of major legal significance.

As a practitioner (barrister or solicitor), it is important that you have a basic understanding of the complicated and somewhat obscure set of laws which govern the lives and lands of aboriginal peoples – not only because you might act for aboriginal clients, but also in the event that you act for non-aboriginal clients who have dealings with aboriginal people or organizations.

TEACHING METHOD: Seminars comprising presentation of papers and general discussion.

ASSESSMENT: Each student will make one major presentation to the class. The presentation in written form will constitute 75% of the grade. In addition, each student will be responsible to act as primary critic for some other student’s presentation. Class participation including this critique will be worth 25% of the grade. Attendance is compulsory.

COMPULSORY ATTENDANCE: If a student misses two classes, then his/her grade will drop by half a letter grade. For each additional class missed, the student’s grade drops a further half a letter grade, e.g. for three classes missed, a grade of B will be dropped to a grade of C, four classes missed to a D, etc. A legitimate reason for missing a class will not be counted as a missed class, as long as the student informs the instructor of the intended absence in advance of the scheduled class.

ENROLMENT: LIMITED TO 16.

INSTRUCTOR: Wendy Whitecloud

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