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Lecture 19

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Peter Morrow

Lecture 19: Nova Scotia case study: constitutional rights, oral traditions and the Mi’kmaq From lecture 18: Akwesane: Grand Chief Michael Mitchell v. Minister of National Revenue − Test case − About the cross –border trade where Michael had some kind of right to trade across the border. Back to lecture 19… Constitution Act 1982: − Original act was the BNAact but was replaced by our own constitution − In this constitution, it gives special rights for the aboriginal people − Highest law in Canada, cannot be changed by the supreme court of Canada Section 35(1): − The existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed − This section did not create the rights but affirmed already existing rights − The aboriginal were not seen as equals to Canadian by the government Section 35(2): − In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada − The word Indian is part of the legal language of Country − So the Indian, Inuit and Metis peoples of Canada have existing rights Rights 1. Aboriginal rights (Van der Peet test) − The constitution didn’t not specify what the rights were, so the Supreme court decided who were aboriginals and what their rights are − These rights involved fishing, hunting or right to do something on land. − The test was done to see if the aboriginal had the right and were able to do it legal − Van der Peet was an original that was caught fishing without a license, and the case was taken to supreme court where they came up with the test 2. Aboriginal title (Delgamuukw test) − This right was about the ownership of the land − Again the test is named after a court case 3. Treaty Rights (Marshall test) − Rights that flow from the decision that the aboriginal’s ancestor made with colonial leaders Aboriginal rights (Van der Peet test): − Integral to distinctive culture, ex: if the aboriginal party would try to prove that hunting moose was part of their culture − Prove that they were hunting at the time of European contact − Prove the continuity between past and present practices − Note that evolutionary changes were allowed, so using guns instead of bow and arrows − Be mindful of evidentiary difficulties − In the end, if there were any ambiguities the court must always decide in the favor of the aboriginal people Aboriginal title (Delgamuukw test): − Exclusive use or occupancy of subject lands, ex: 2 native groups living on same land, one group can claim not both − Prove that they were living on land at the time of British assertion of sovereignty − Oral traditions to be placed on “equal footing” with written documents Treaty Rights (Marshall test): − The test name was named after a famous case, where Marshall was wrongly convicted of murder and spent time in jail − He was released when proven innocent but was caught again for fishing eels without a license and he won the case − Determine what was in the contemplation of the parties at the time the treaty was signed…so how would have the aboriginals understood the treaty? What was the government thinking when they made the treaty? − Do not give treaty strict legal meaning…so the judges have no say in what the treaty means, the judge has to go with what the aboriginals say − Ambiguit
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