CIVE 463 Lecture Notes - Lecture 10: International Labour Organization, Aboriginal Title, Fiduciary
25 May 2018
School
Department
Course
Professor
Class 10: Indigenous Peoples and Legal Procedures
s 35 Constitution Act 1982
• s 35 not part of Charter (as it only goes up to s 33 of the Constitution). Consequences - s.
35 is not modified/qualified by s 1. S. 1 is like God, because judges, if it is not in, bring it
through judicial craft anyways (Sparrow).
• What kind of rights:
o treaty rights (go back in the 1700s or more recent land claims) - relatively
generous approach? Resolved in the favour of the party who did not write the K -
canons of Aboriginal Treaty interpretation. Still, that is not in s 35, comes from
cases in 1990s where the SCC suggest that cases predating the Charter involved
the honour of the Crown and so ambiguities must be determine in favour of
Indigenous peoples.
o Aboriginal rights?
▪ Context:
• Rights belonging specially to aboriginal peoples, but still unclear.
Takes cases to elaborate within a greater movement that is
international (UN)
• By the time s 35 - convention 107 of International Labour
Organisation providing for a number of minority rights for
aboriginal peoples (not in the sense of sovereignty and self-
determination)
• First nations did not like s 35. Wanted thick rights to land
(spiritual, economic, culturally more appropriate). Since feds and
First Nations did not get to a compromise - let it to the courts to
figure it out.
▪ 1) Aboriginal title. Delgamuuk sets conditions to claim. Claim to an
exclusive right to territory so long as this does not destroy the basis to
claim the title.
• Right to exclude attached to the community, as the right holder, the
right has a territorial property (rather than just property- imbedded
political connotation
▪ 2) Aboriginal rights. Show that they have engaged in a certain kind of
activity that is distinctive to their ab way of life and that they have done it
before contact with the Crown. Ex. To hunt and fish, over Crown land
with respect to which Ab peoples
• cannot claim a right to exclude.
o Criticism: this is antiquated and does not respond to realities of modern life.
Recognition of rights
• Sparrow: Muskind band involved in litigation with gvt before and had been swindled
from a part of their reserve to extend a golf course. The Crown acted as an intermediary -
so had to be an agent for the golf course and thus was uphold to judiciary duties. 1990:
can they engage in traditionally fishing for food in that area.
o Crown native relationship is fiduciary in nature rather than adversarial, so all Ab
rights are protected by the fiduciary duty. This means:
find more resources at oneclass.com
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Document Summary
Class 10: indigenous peoples and legal procedures s 35 constitution act 1982: s 35 not part of charter (as it only goes up to s 33 of the constitution). Resolved in the favour of the party who did not write the k - canons of aboriginal treaty interpretation. Still, that is not in s 35, comes from cases in 1990s where the scc suggest that cases predating the charter involved the honour of the crown and so ambiguities must be determine in favour of. Indigenous peoples: aboriginal rights, context, rights belonging specially to aboriginal peoples, but still unclear. Takes cases to elaborate within a greater movement that is international (un: by the time s 35 - convention 107 of international labour. Organisation providing for a number of minority rights for aboriginal peoples (not in the sense of sovereignty and self- determination: first nations did not like s 35. Wanted thick rights to land (spiritual, economic, culturally more appropriate).
