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Lecture 8

POLB30H3 Lecture Notes - Lecture 8: Fiduciary, Judiciary Of Australia, Canadian Aboriginal Law


Department
Political Science
Course Code
POLB30H3
Professor
Margaret Kohn
Lecture
8

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Lecture 8: Aboriginal Rights [Tsilhquot’in Nation v. British Columbia and
Mabo v. Queensland]
Aboriginal title
Definition: Aboriginal title is a legal right derived from the Indians historic occupation and
possession of their tribal lands”. It is exclusive and collective right. It cannot be sold and must be
developed in a manner that preserves the use and enjoyment of the land for future generations.
Tsilhquot’in Nation v. British Colombia: Aboriginal title gives Aboriginal groups the exclusive
right to decide how the land is used and to benefit from those uses. it rejects the postage stamp
approach. It does not mean that provincial and federal laws cease to apply; The government can
authorize infringements of Aboriginal title if the infringement can be justified. They can be
justified when there is a “compelling and substantial” public purpose.
Mabo v. Queensland: in the Mabo case the traditional rights of the Meriam people to their
islands in the eastern Torres Strait were recognized. The Court also held that native title existed
for all Indigenous people in Australia prior to the establishment of the British Colony. This led
Australia to pass the Native title Act in 1993. Recognized the Aboriginal title for the first time in
Australia. Rejecting terra nullius, held that native title exists.
Honour of the crown
Definition: Bilaterial relationship with the crown. A phrase of Canadian aboriginal law in
reference to the sometimes generous attitude the law takes to the definition of aboriginal rights.
... "The government's duty to consult with Aboriginal peoples and accommodate their interests is
grounded in the honour of the Crown.
Mikisew Cree v. Canada: When establishing the Omnibus bills, the Court found that the Mikisew
were owed a duty to consult and this duty had not been fulfilled by the Crown, only declaratory
relief was granted. This case established the duty to consult and accommodate. Honour of the
Crown ensures that the Crown is required that these rights be determined, recognized and
respected. So the Crown must act honourably to participate in processes of negotiation. While
this process continues, the honour of the Crown may require it to consult and, accommodate
Aboriginal interests. The Crown has in turn responded to cases where Europeans claimed
Aboriginal land by negotiating treaties.
Fiduciary Responsibility/Duty
Definition: A fiduciary duty is a legal duty to act solely in another party's interests. A fiduciary
obligation exists whenever the relationship with the other involves a special trust, confidence,
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