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 lawCanadian 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
- 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
- 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
- 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
- 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.