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LWSO 203 - Aboriginal Law April1,3,5.docx

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Law and Society
LWSO 203
Marywyatt Sindlinger

Aboriginal Law Among all different groups of aboriginals there was more emphasis on rules and customs revolving around responsibility. Having to consider other people in the community instead of considering your own self. What constitutes a legal system? -A group of 15 people related to kinship ties out in a village, and they have a custom of ways of (who does what in the community), does this make it a legal system? Do the first nations qualify in our legal systems (European based, western ideal ology)? Settler’s law, Colonizers lawCanadian law applied to the aboriginal peoples of Canada: 1.) Statutory Framework: a) Royal Proclamation 1763 - War between England and France, the English win, and this act was made of king George the 3 . It imposed English law on the French colony. It said that any lands that did not been taken from the first nations yet, are reserved for those first nations. These were lands for exclusive use and possession of those first nations. Those lands can only be transferred to the Crown (this stays true to this day). This land cannot be sold to traders, settlers or anyone else except the Crown. The Crown becomes the guardian of these lands and gets to decide what happens to this land. A lot of the decisions move from the first nations to the government. The government in this case gets to choose whether this lands is leased or sold. All land in Canada belongs to the Crown, and lands reserved to first nations are a burden on top of this. Fiduciary term: one party must act in the benefit of the other party. The crown must act for the benefit of the first nations in the relation to these lands. - The crown started treating first nation of groups and aboriginals as incompetent individuals not capable of making their own decision and they needed to be taken care of. Out of this idea came a policy of assimilation. The goal was to assimilate aboriginal people into the broader and more civilized society. This included change in language, religion, manner of dress, and naming. Assimilation took part as aboriginal women married out. b) Constitution Act 1867 - s. 91(24) Indians and lands reserved for Indians fall under federal legislative jurisdiction - There was heads of power, the provincial and government had power divided among them. S.91 sub 24, Indians and lands reserved for Indians is a federal power controlled by the government in Ottawa. Federal government has power over military, natural resources, health care and aboriginals. This is the only racial group that has been singled out under the federal government. - Every aspect of the aboriginals lives is under federal authority and the receive different laws than everyone else under government legislation. The include property rights, taxation, marriage, healthcare, education. No laws of divorces on reserves c) Indian Act - Through the Indian Act the federal government exercises assimilation through residential schools (taking children out of culture), reservation system (reserves, lands set aside. Houses they live in, they do not own the land, the land is held by the band, this makes it hard to get a mortgage since they don’t own the land), voting, and ceremonies. - Banning of religious ceremonies. There culture was passed on through ceremonies and songs, and stories. The government made this illegal in order to stop culture transfer of ideas. - Banned governments, who gets to govern and how they will be governed. Under the Indian act has been a western view of governance, democratic principles, democratic accountability principals involved. These societies were usually based on consensus not vote. Birth, registration, healthcare, education, marriage, death all covered by Indian act. - Who’s an Indian? An Indian was anyone who was of Indian decent or any women married to a man of Indian decent. The women become an Indian in this case. The children of the Indian man and non-native Indian women are also Indians and so are their grand children. In another case where a Indian women marries a non-Indian man, the women will loose her Indian status. This idea was apart of assimilation since it is the women who are the sole transferors of knowledge and cultural customs. This marrying out law lasted until 1985. - The government then changed things allowing women and children to re-apply for their Indian status. But the bands still had control of their band membership and did not grant membership to a lot of Indian women and children who had re-applied for Indian status. - Enfranchisement divisions: this is the idea that Indian men can become full British citizens in society voluntarily or involuntarily. This meant that they got to vote, and giving up cultural and legal identity as an Indian in order to join mainstream society. Only men could choose to be enfranchised, had to be 20years old, and had to be capable of assuming duties of citizenship and financially supporting themselves. The women became automatically enfranchised with her husband’s involvement. They also had to be literate and moral. You could be involuntarily enfranchised if you jrdned the army, went to university or became a member of the clergy. - 3 aspects of assimilation project, cultural tradition were regulated in respect to ceremonies and potlatches. - The Indian act is still valid and applied to Indians across the country of Canada. d) Constitution Act 1982 – s. 35(1) Existing aboriginal and treaty rights are recognized and affirmed - Canadian Charter of Rights and Freedoms: aboriginal rights are not apart of this charter. They are apart of the constitution act of 1982. S.35 (1) Recognizes and affirms existing aboriginal treaty rights, of aboriginal and Inuit peoples in Canada. Two most common sections of constitutions act are (1) all those legal rights for offender, and (2) s.35sub1. - Constitutionally entrenches aboriginal rights. This means it is the highest level of legal and political recognition and protection that our laws can give to rights in our system. Since they were here first they have a role in our constitutional framework. Fundamental part of our government structure. This makes aboriginal on a different level of than other people from society. 2.) Aboriginal Rights -The purpose of these rights are to reconcile two facts. (1) Prior occupation: they were here first. (2) Crown sovereignty: the British crown said they were in charge of the government. a) Defined: a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right - the right to participate in an activity that is part of the right -Custom: Hunting trapping fishing, ceremonies -Integral: must be something central to society. -Distinctive: gives the culture what it is and gives it its central flavour. - Since they are protected it means the government cannot infringe on these activities. Highways
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