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LWSO203 - Aborinal Legal History.docx

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Law and Society
LWSO 203
Marywyatt Sindlinger

Historical Development of Canadian Law Aboriginal Influences 1) Aboriginal Political and Legal systems  Reactionary Law – our legal system is responding to events and power struggles Two definitions for Aboriginal Law:  Aboriginal Law – the law and legal systems of aboriginal people  Aboriginal Law – applying Canadian law to Aboriginal peoples  Over 500 groups of First Nations. It is very hard to generalize and talk about them as one (various perspectives, ideas) Political structures:  Varied across country  Some had very hierarchical societies (chiefs)  Some had councils (groups of elders) that made decisions based on best interests of the group  Some had different groups making decisions depending on whether it was a peace issue or aggressive/outside force issue (split government structure)  Family groups decide what is right  Very stable political structure; consistent and did not change much over time. This is because the place sucked to live in, so you needed that stability and cohesion for survival. In order to live, you had to get along.  Most had a stable method of governance and making decisions Legal structures:  Oral legal structures and traditions/teachings  Through the telling of stories and legends, the social norms were passed on from generation to generation; the norms were not direct  Ceremonies were an opportunity to retell and test your story (insure the accuracy and consistency of those stories)  Through these teachings, proper behaviour was emphasized – key difference between non aboriginal legal structure and oral aboriginal structure (emphasized responsibility to your family, rest of the world, the creator; our legal system emphasizes our rights instead of responsibility towards others)  Passing on standards of behaviour by storytelling and through ceremonial rituals  Dispute settlement linked to governance methods and structure 2 key elements: i) focus on responsibility to each other, the group, the Creator as opposed to individual rights  Dispute settlement process – tied to the political structure (council -> take it to the council)  Strong emphasis on consensus and rehabilitation (goes back to the survival aspect). You want to keep them in the group so they can contribute to the survival of the group. ii) collective property focused on stewardship rather than ownership  From an aboriginal perspective, it was the group’s property (ours as a group). In relation to land, it was about using what you needed from the land but also insuring the land will be there for generations to come. You have responsibilities to the land. You are not there to destroy it or use it up. 2) Aboriginal – Colonizer Relations First Agreements: Peace and Friendship treaties and Military alliances Nation to nation agreements  First agreements were on the east coast of Canada  French/English colonies  Peace and Friendship treaties – let’s be allies, don’t fight against me  Military alliances – we will be friends fighting against someone; written agreements  Nation to Nation agreements – these aboriginal nations were independent nations and were to be treated this way  This idea of nation to nation permeates through to this day. The relationship is to the monarch and not just to the government of Canada. Royal Proclamation 1763: All aboriginal lands not preciously transferred to Europeans are reserved for the exclusive use and possession of the Indians Indian lands can only be transferred to the Crown  ROYAL PROCLAMATION 1763 *** KNOW THIS - All aboriginal land not preciously transferred to Europeans are reserved for the use and procession of the Indians for their hunting grounds  Recognition/acknowledgement for rights to land  The aboriginal lands can only be transferred to the land (can’t sell it to Joe Smith) – this still exists (fiduciary duties to Aboriginal people of Canada)  Two key aspects: conquest of English over the French, and Aboriginal lands Historic Treaties: 11 Historic Treaties entered into between 1871-1921 Similar structures with some variations - Ceding lands in exchange for reserve lands - Guarantee of means of subsistence on surrendered lands - Freedom from taxation - Cash payments
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