Aboriginal Peoples and the Law (Gunn)

Course Title:
Aboriginal Peoples and the Law (Gunn)
Course Number:
LAW 3310
Course Description:

The TRC Final Report called for significant actions to change the justice system’s relationship with Indigenous people. These calls to action extended to law societies, lawyers, law schools, and all levels of government, many of whom are responding seriously. How do Indigenous and non-indigenous lawyers practice law and work with Indigenous clients in the age of reconciliation? Is our current case law and legislation compatible with justice and reconciliation for Indigenous peoples? How did we get to where we are today? This seminar is a survey course on legal issues that particularly impact Indigenous peoples in Canada. It focuses on issues that will be relevant and useful to lawyers in a variety of practice areas, through the lens of reconciliation. These issues are presented and discussed in a manner intended to also deepen the knowledge base of those with a particular interest in Indigenous legal issues, justice and reconciliation. Topics will include land rights and jurisdiction, governance, criminal justice, and child welfare. All students are encouraged to think critically about some of the challenging legal, philosophical, practical and human issues that arise in these areas.

Weekly seminars to cover the following topics:

Part 1 Introduction, History and Context

  • Course overview with Indigenous law/Elders/traditions panel
  • Colonialism in Canada; The History of Residential Schools

Part 2 The Legacy

  • Child Welfare; Violence and Victimization and the MMIW Inquiry
  • Criminal Justice

Part 3 The Challenge of Reconciliation: Indigenous Laws, Governance and the Treaty Relationship

  • International Law, UNDRIP, Implementation in Canada
  • Doctrine of Discovery and Terra nullius; Royal Proclamation of 1763 and the Treaty of Niagara
  • Treaty Relationships
  • Revitalization of Indigenous Laws

Part 4 The Challenge of Reconciliation: Section 35

  • Aboriginal Title
  • Aboriginal Rights
  • Honour of the Crown, Fiduciary Relationships and Duties
  • Duty to Consult and Accommodate

Part 5 Conclusion

  • TRC Final Report
Teaching Method:

**Please note: students are not permitted to record (audio or video) class without instructor’s prior written approval.**

Seminar course comprised of written work (research paper), positive contributions during class discussions, presentation of news stories related to course material.


Written Work (75%): A research paper (7500 words) on any topic that relates to the themes and issues discussed throughout the course. The research paper is due by:

Monday, December 3, 2018 at noon. Paper is to be emailed as a pdf entitled “lastname.Aboriginal.paper.pdf” to brenda.gunn@umanitoba.ca.

The research essay should demonstrate a reasonably sophisticated understanding of the topic area. It should be analytical rather than merely descriptive. It should show that the researcher drew on a number of different academic sources identified through research as well as demonstrate facility with some of the materials covered during in class. I encourage students to discuss their paper topic with me well in advance of the deadline.

Written work must be typed-written, 1.5 line spaced in Times New Roman 12 point font, 1-inch margins, left justification. Please include page numbers. You must include a word count on the cover page. All footnotes must comply with the Canadian Guide to Uniform Legal Citation (McGill Guide). Marks will be deducted for failure to comply with each of the formal requirements.

Late essays will be deducted one ½ letter grade for each day late (e.g., B+ to B, B to C+). Deferrals must be sought through the Associate Dean’s office.

To receive comments on drafts, research works must be submitted no later than Monday, November 12, 2018 (please email a word document).

Positive Class Contribution (20%): Seminar courses are ideal forums for discussion and present students with the ability to be actively involved in the learning process. Having read the assigned readings, students should come to class prepared to grapple with the subject matter and the issues arising therein. Students will be graded on their active engagement in and positive contributions to class discussions. Attendance without participating in class will lead to a reduction in student’s grade on this component.

Similarly, disengagement from class discussion through emailing, chatting, surfing the internet, etc. will also lead to a reduction in the student’s grade on this component.

Through participation in class discussion, students demonstrate their preparedness for class and understanding of the materials.

News Story Presentation (5%): Each student must bring at least one news story to class with a nexus to the materials covered in the course. Please email me the story 24 hours before class. The student will spend 5 minutes discussing the article, including a brief overview of the story, how it connects to the course materials, as well as critical commentary. The purpose of this assignment is to encourage connection between course material and current events.

Plagiarism and other academic offences will not be tolerated.

If you have a question about what constitutes plagiarism, please come and speak with me at any point. Please familiarize yourself with the University Regulations concerning these matters, found in the University Undergraduate Calendar:

7.1 Plagiarism and Cheating

Plagiarism or any other form of cheating in examinations, term tests or academic work is subject to serious academic penalty (e.g. suspension or expulsion from the faculty or university). …

To plagiarize is to take ideas or words of another person and pass them off as one’s own. In short, it is stealing something intangible rather than an object. Plagiarism applies to any written work, in traditional or electronic format, as well as orally or verbally presented work. Obviously it is not necessary to state the source of well known or easily verifiable facts, but students are expected to appropriately acknowledge the sources of ideas and expressions they use in their written work, whether quoted directly or paraphrased. This applies to diagrams, statistical tables and the like, as well as to written material, and materials or information from Internet sources.

To provide adequate and correct documentation is not only an indication of academic honesty but is also a courtesy which enables the reader to consult these sources with ease. Failure to provide appropriate citations constitutes plagiarism. It will also be considered plagiarism and/or cheating if a student submits a term paper written in whole or in part by someone other than him/herself, or copies the answer or answers of another student in any test, examination, or take-home assignment.

Working with other students on assignments, laboratory work, take-home tests, or on-line tests, when this is not permitted by the instructor, can constitute Inappropriate Collaboration and may be subject to penalty under the Student Discipline By-Law.

An assignment which is prepared and submitted for one course should not be used for a different course. This is called “duplicate submission” and represents a form of cheating because course requirements are expected to be fulfilled through original work for each course.

Evaluative feedback may not be provided before the voluntary withdrawal deadline.

Course Materials:

Part 1 Intro, History and Context

Friday, September 7

Introduction, Course overview
– Indigenous law/Elders/traditions panel: Dawnis Kennedy, Elder Bone, Norman Meade, Katherine Whitecloud
In discussion with Elders before hand, arrive at a couple of questions that can be discussed by all members
Who we are: What it means to be Anishinaabe, Métis, Dakota, etc.
Community structures: family, Traditional approaches to governance
Relationships to land
Friday, September 14

Colonialism in Canada
The History of Residential Schools
– TRC Final Report, v-vi, 1-22, 37-55,60-67,
– Recommended: TRC Final Report 71-129
Part 2 The Legacy

Friday, September 21

– TRC Final Report, “The Legacy” (Child Welfare), 135 –144
– Borrows and Rotman:
“Child Welfare”, “Contemporary Realities”, 884,
Jurisdiction & Funding, at 889-908
Self-government initiatives, 922-929
Violence and Victimization and the MMIW Inquiry
– TRC Final Report, “The Legacy” (Justice [Criminal Victimization]), 178 –182
– MMIW terms of reference / interim report (D2L)
Borrows and Rotman:
First Nations Matrimonial Real Property Act, 805-812,
Bill C -31 and its Effects, 842-850
Friday, September 28

Criminal Justice
– TRC Final Report, “The Legacy” (Justice [Criminal]), 170 –178
– Borrows and Rotman, 1045 –1070,
Aboriginal Traditions and Justice, 1072 – 1076 and 1133 –1144
Part 3 The Challenge of Reconciliation: Indigenous Laws, Governance and the Treaty Relationship

Friday, October 5, 2018

International Law, UNDRIP, Implementation in Canada
– TRC Final Report, Challenge of Reconciliation,183-191.
– Centre for International Governance Innovation, “UNDRIP Implementation: Braiding Together International, Domestic and Indigenous Law”. Please read any two of the pieces.
Brenda L Gunn, “Overcoming Obstacles to Implementing the UN Declaration on the Rights of Indigenous Peoples in Canada,” (2013) 31 Windsor Y B Access Just 151, 152-155, 163-178
Optional: Indigenous Bar Association, Brenda Gunn, Understanding and Implementing the UNDRIP: An Introductory Handbook.
Friday, October 12, 2018

Doctrine of Discovery and Terranullius
Royal Proclamation of 1763 and the Treaty of Niagara
– TRC Final Report, The Challenge of Reconciliation (Doctrine of Discovery, Terra Nullis, Royal Proclamation of 1763/Treaty of Niagara/ Treaties),191-201.
– Borrows and Rotman, Aboriginal Governance, 1-29, 41-47, 63-74.
Friday, October 19, 2018

Treaty Relationships
– Borrows and Rotman, Introduction, 281-286
– R v. Badger [1996], 343-352
– Métis Treaties – Chartrand piece
– Treaty Relations Commission Elder’s Treaty Teachings Volume 3, 21-45
Revitalization of IndigenousLaws
– TRC Final Report, “The Challenge of Reconciliation” (Indigenous Laws), 202- 207
– Hadley Friedland and Val Napoleon, “An Inside Job: Engaging With Indigenous Legal Traditions Through Stories,” (2016) 61:4 McGill LJ 725.
Part 4 The Challenge of Reconciliation: Section 35

October 26, 2018

Aboriginal Title
– TRC Final Report, “The Challenge of Reconciliation” (Apology to Action, Aboriginal Title) 207 –215
– Introduction, 183-188
– Delgamuukw [1997] 236-251
– Tsihlqot’in Nation v. BC, 266-280
– Métis land rights, 667-679
Research Paper Seminar – bring your thesis statement & 3 potential sources.

November 2, 2018

Aboriginal Rights
– Borrows and Rotman, Introduction, 99-115
R v. Van der Peet (1996), 119-136
R v. Powley [2003], 681-694
Also, pick one of the following cases: v. Côté, 147, R. v. Sappier; R. v. Gray, 154, Lax Kw’alaams Indian Band, 168.
November 9, 2018

Honour of the Crown, Fiduciary Relationships and Duties
– Borrows and Rotman, 399-405
– Borrows and Rotman, Guerin, 407-416
– Borrows and Rotman, MMF, 419-423
– Borrows and Rotman, Daniels, 646-654
– Borrows and Rotman, Grassy Narrows, 753-754?
November 16, 2018 No class

November 23, 2018

Duty to Consult and Accommodate
– Borrows and Rotman:
Haida Nation v. BC, Rio Tinto, Beckman v Little Salmon/Carmacks, 495-544
Clyde River, 549-560
Part 5 Conclusion

November 30, 2018

TRC Final Report, “The Challenge of Reconciliation” (Apology to Action, National Council for Reconciliation, public servants), 215-219.