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ANT241Y5 (28)
Lecture 20

Lecture 20

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Alexander Von Gernet

Lecture 20 – Nova Scotia Case Study: Constitutional Rights, Oral Traditions and the Mi’kmaq - Constitution Act 1982 o Section 35: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed o So, the Indian, Inuit, and Metis peoples of Canada have existing rights. (rights over and above any rights they have as Canadians) o Rights:  1. Aboriginal rights (Van der Peet test)  the test as to whether you have such a right or not:  Integral to distinctive culture  Time of European contact  Continuity between past and present practices  Be mindful of evidentiary difficulties  2. Aboriginal title – an actual right to the land itself. (Delgamuukw test):  Exclusive use or occupancy of subject lands – (your people and nobody else use that land that’s in dispute)  At time of British assertion of sovereignty  Oral traditions to be placed on “equal footing” with written documents  3. Treaty rights (Marshall test):  Determine what was in the contemplation of the parties  At the time the treaty was signed  Do not give treaty strict legal meaning  Ambiguities resolved in favour of Indians o Evidence used (for the tests)  Archaeological data  Eg. Highland lake site
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