LWSO 201 Lecture Notes - Indian Register, Indian Act, Negative And Positive Rights

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Published on 19 Apr 2013
Aboriginal Law
1) Fundamental Premises of Aboriginal Legal Theories
Conception of law is the healing of the perpetrator in order to return to society
Relational connection
a) Aboriginal world views are not reflected in Canadian law in general
b) Canadian law as applied to Aboriginal people is based on patriarchal and colonial
ideas of oppression
2) Examples
a) Delgamuukw v. British Columbia
land claims
b) Aboriginal women who “married out”
women who married non aboriginal men lost their status and their
children's status.
3) Statutory Framework
a) Royal Proclamation 1763
idea that all lands are to be bought by the crown and by treaty and settlers
can only acquire land through and from the crown in North America
b) Constitution Act 1867 - s. 91(24) Indians and lands reserved for Indians fall
under federal legislative jurisdiction
c) Constitution Act 1982 s. 35(1) Existing aboriginal and treaty rights are
recognized and affirmed
4) Canadian Law applied to Aboriginal people
Based on colonial rule
Conflict between aboriginal world view and Canadian world views
a) Aboriginal rights: 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
b) Aboriginal Title: 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
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