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LWSO 203 (56)

Aboriginal Law.docx

6 Pages

Law and Society
Course Code
LWSO 203
Marywyatt Sindlinger

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Aboriginal Law 1) Statutory Framework A) Royal Proclamation 1763 B) Constitution Act 1867 - s. 91(24) Indians and lands reserved for Indians fall under federal legislative jurisdiction -Indian Act Who is considered an “indian”? -anyone of indian descent or any woman married to someone of indian descent Assimilation project: I) Marrying in privileges: non indian women who marry an indian man are considered indian, as well as any progeny Marrying out: an indian woman who marries a non-indian man lose their indian status, as well as any progeny -Women were responsible for educating children and relaying traditions so removing them from reserves helped assimilation, as well as integrating non-indian women into bands who brought their own beliefs and traditions into the culture -Women who married out and their children were given the right to apply for indian status -Indian status doesn’t mean band status and bands control membership, and many bands didn’t want to welcome in people who hadn’t been a part of the culture for years II) Enfranchisment Provisions (until 1960’s): -Indian men became full-british citizens voluntarily or involuntarily -Gained; right to vote and considered a full citizen with all rights -lost culture and indian status -only men, 21 years or older, capable of assuming the duties and responsibilities of citizenship, must be capable of supporting himself, must be literate and moral -the wife of any man who became enfranchised also became enfranchised involuntary enfranchisement: -joining the army -attending university -joining the clergy III) Restrictions: -on traditional ceremonies -languages -costumes -preventing Indians from voting (until 1969) -preventing Indians from buying alcohol -forcing western religions, traditions and values C) Constitution Act 1982 – s. 35( -Existing aboriginal and treaty rights are recognized and affirmed -Constitutionally entrenches the aboriginal rights (highest possible level of protection and recognition possible for rights in system) -acknowledgement of aboriginal’s position in Canadian society and gov’t structure (puts aboriginals on a different pedestal than anyone else) idea of “first in time” -aboriginals were here first CCRF: -Aboriginal rights are part of the constitution but NOT the charter 2) Aboriginal Rights a) Defined: a practice, custom or tradition integral (essential to society) to the distinctive (differentiates it from others) culture of the aboriginal group claiming the right - the right to participate in an activity that is part of the right -they must be consulted before doing anything that infringes on these rights Goal: To reconcile i) Crown sovereignty ii) b) Collective right practised by the individual -a right for each band practiced by each member c) Fact specific: -not all bands have the same rights ie. Fishing rights on east coast vs. west d) Three key aspects: i) What is the specific nature of the right claimed including the specific practice, custom or tradition that is the basis of the right? -must be very specific -must be tied to a historical value or practice ii) Must have existed prior to European contact and have continued in some form to the present -must have existed prior to contact -must have continued to be practiced after iii) Must be integral to the distinctive society claiming the right -defines the individual culture -essential to the culture -Traditions aren’t frozen in time, they can evolve with technologies and they don’t have to follow the traditional method as long as there is still a connection to the original nature 2) Aboriginal Title -special form of aboriginal right a) Defined: the right to the exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those practices, customs, and traditions Aboriginal title vs. reserve lands: -held through collective ownership rather than individuals Reserve lands: specific areas of land held for aboriginals in exchange for aboriginal title (formulas determine the size x amount per person) -set out through treaty rights Aboriginal title: the
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