Social & Global Studies

Unit 3 Rights & Freedoms: Aboriginal Law — Indigenous Law

Indigenous Lands, Rights and Law 

Terminology Web Quest

When we imagine history, we imagine a grand structure, a national chronicle, a closely organized and guarded record of agreed-upon events and interpretations.” Thomas King in The Inconvenient Indian. 

That kind of history becomes especially prevalent during big anniversary years such as the recent Canada 150, when attempts are made to unite the population around a simple narrative of exploration, settlement and diversity.

Alternate Unit Title → Land Back: Challenges to Canada’s Sovereignty Claims

This unit explores major legal issues, and in particular land title, concerning Indigenous Peoples (First Nations, Inuit, and Métis) in Canada. Students will explore the development of Canadian case law relative to these groups and the simultaneous preservation and dispossession of Indigenous people’s rights through recognition, reconciliation, and recolonization.

The Assertion of Sovereignty

LEGAL CHALLENGE  Prove (or Disprove) the Crown’s Assertion of Sovereignty in (so-called) Canada.


I.C.J. Advisory Opinion 1975

Western Sahara Case Ratio

The International Court of Justice specifically rejected the notion that lands inhabited by nomadic peoples may be acquired on the basis of occupation as terra nullius. In the Mabo decision, Justice Brennan quoted from the 1975 majority judgment of the International Court of Justice in its Advisory Opinion on Western Sahara. The International Court said:

Occupation being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of a valid ‘occupation’ that the territory should be terra nullius — a territory belonging to no-one — at the time of the act alleged to constitute the “occupation” …  In the view of the Court, therefore, a determination that Western Sahara was a “terra nullius” at the time of colonisation by Spain would be possible only if it were established that at that time the territory belonged to no-one in the sense that it was then open to acquisition through the legal process of “occupation”…. Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or people having a social or political organisation were not regarded as terra nullius.”


Overturning the Doctrine of terra nullius: The Mabo Case

The Mabo decision altered the foundation of land law in Australia by overturning the doctrine of terra nullius (land belonging to no-one) on which British claims to possession of Australia were based. This recognition inserted the legal doctrine of Aboriginal title into Australian law. The judgments of the High Court in the Mabo case recognized the traditional rights of the Meriam people to their islands in the eastern Torres Strait. The Court also held that Aboriginal title existed for all Indigenous people in Australia prior to the establishment of the British Colony of New South Wales in 1788. In recognizing that Indigenous people in Australia had a prior title to land taken by the Crown since Cook’s declaration of possession in 1770, the Court held that this title exists today in any portion of land where it has not legally been extinguished. The decision of the High Court was swiftly followed by the Native Title Act 1993 which attempted to codify the implications of the decision and set out a legislative regime under which Australia’s Indigenous people could seek recognition of their Aboriginal title rights.


Recognition, Reconciliation, & Recolonization

READ FORWARD  Red Skin White Masks: Rejecting the Colonial Politics of Recognition Glen Sean Coulthard
WATCH → 2005 Interview of Taiaiake Alfred on Indigenous Governance (Allan Gregg in Conversation TVO)
ARTICLE  Don’t Just Resist. Return to Who You Are by Taiaiake Alfred

History Lesson

CASE 1  Ktunaxa Nation v. British Columbia (S.C.C. 2017)

WATCH DOCUMENTARY → Last Resort (Jennifer Bowen-Allen NSI IndigiDocs)

The Supreme Court of Canada, which has expanded aboriginal rights in groundbreaking rulings in recent years, will hear a novel religious-freedom case called Ktunaxa Nation v. B.C.  The case involves a proposed year-round ski resort to be built with the province’s permission on Crown land that the Ktunaxa Nation calls Qat’muk and says is spiritually important for its people as home of the Grizzly Bear Spirit.  (A Ktunaxa Nation website describes their beliefs this way: “Qat’muk is where the Grizzly Bear Spirit was born, goes to heal itself and returns to the spirit world.  For Ktunaxa, Grizzly Bear Spirit is a unique and indispensable source of collective as well as individual guidance, strength and protection, and a necessary part of many Ktunaxa spiritual practices and beliefs.“)  Establishing permanent overnight accommodations on that site would destroy the Ktunaxa’s relationship with the spirit, the group says, and render their religious practices meaningless.  The Ktunaxa Nation lost in the lower courts.  The Crown says there should be no religious veto over development.

The case “represents the first opportunity for the Supreme Court of Canada to consider whether the destruction of an Aboriginal sacred site constitutes a violation of freedom of religion,” University of Ottawa law professors Natasha Bakht and Lynda Collins state. “Sacred sites are as necessary to Aboriginal religions as human-made places of worship such as churches, temples and mosques are to other religious traditions.”

Crown & Glacier Resorts ARGUMENTS

ABORIGINAL LAW — The Constitution, Statutes, and Court Decisions

INDIGENOUS LAW — Knowledge, Perspectives, & Realities

     1)  Natural Law
     2) Sacred Law
     3) Deliberative Law
     4) Customary Law

Wampum Diplomacy Between Nations

Aboriginal Rights & Title

Section 35 of the Canadian Constitution Act, 1982

It is important to understand that Section 35 recognizes Aboriginal rights, but did not create them?Aboriginal rights have existed before Section 35.

Section 35 states →

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 Métis 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 male and female persons.

Further Reading

CASE 2 → Delgamuukw v. British Columbia (S.C.C. 1997)

The name Delgamuukw is a hereditary chief name, passed down from generation to generation to new Gitxsan chiefs. Earl Muldoe, a cited claimant in the case, held the title of Delgamuukw when the trial began in 1987. Another commonly cited claimant is Dini ze’ Gisday’ wa (also known as Alfred Joseph) of the Wet’suwet’en nation.
Hereditary Chief Delgamuukw →

A clearcut in Gitksan territory, British Columbia, from the film Blockade, by Nettie Wild.

READ EXCERPTS FROM → If This Is Your Land, Where Are Your Stories? by J. Edward Chamberlin

The appellants, Gitksan and Wet’suwet’en chiefs, claimed Aboriginal title, or ownership, to 58,000 square kilometres of land in B.C. on behalf of their “houses”. This claim was based on their legal system of property rights and their pre-contact ownership of the land.

The Supreme Court of Canada recognized for the first time that First Nations held title to their land prior to European arrival on the continent. The decision discusses the unique nature and characteristics of Aboriginal title. The court decided that that there was not enough evidence to determine if this land was historically owned by the Gitksan and Wet’suwet’en Nations, or whether the Nations had ceded, or given up ownership to the land. However the court did discuss what kind of evidence could be used to establish a land claim. This case creates the legal possibility of a successful claim to Aboriginal title under Canadian law. This case is also notable because it recognizes the importance Aboriginal people attach to oral histories and demonstrates how Canadian legal rules of evidence can accommodate oral histories during trial.

CASE 3  LANDMARK TITLE CASE Tsilhqot’in Nation v. British Columbia (S.C.C. 2014)

b) READ & STUDY  the Tsilhqot’in Case Resource  Link by Tsilhqot’in Legal Counsel Woodward & Company.

d) READ & STUDY → Tsilhqot’in Nation v. British Columbia (2014) SCC DEBRIEF