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ENVR 4650 (2)

ENVR 4650 midterm study.doc

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University of Manitoba
ENVR 4650
Jonathan Scarth

LECTUREONE The rule of the law - no one is above the law - no powers beyond that which given in the Constitution Act Constitutional Law - conforms to jurisdictional constraints set out in SS. 91 and 92 of the BNA Act Resource Law - natural resources: ownership, property rights - mineral, forestry, water resources, etc... - licenses Two Sources of Law 1. Legislation a. Act = skeleton b. regulations = muscle 2. Court decisions a. written decisions on disputes b. interpretation of leg. c. common law Parliamentary Sovereignty: the legislative branch has the ultimate authority to repeal or modify any principles set out by the courts Constitution Act, 1867 (British North America Act) - executive power - legislative power - provincial constitutions - distribution of legislative powers1 - judicature (the administration of justice) - revenue - admission of new colonies 1982 - charter of rights and freedoms - right to equal protection and benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability - rights of aboriginal peoples - existing rights recognized and affirmed - treaty incl. land claims agreements - Prime Minister must consult if amendments are made to the constitution - equalization and regional disparities 1 - procedure to amend Constitution Federal Power (s. 91) - POGG (peace, order, and good governance) - national concern (e.g. uranium) - emergency - regulation of trade and commerce - raising money through tax - navigation and shipping - sea coast and inland fisheries - indians, and land reserved for indians - criminal law (except constitution of courts of criminal jurisdiction, but incl. the procedure in criminal matters) - If it isn’t covered in Provincial it’s federal Provincial Powers (s. 92) - direct taxation (for prov. purposes) or licenses - management and sale of public lands - municipal institutions - timber and wood thereon - local works (other than such that physically connect provinces or countries) - property rights - agriculture and immigration (prov. and fed.) - 92A - exploration of non-renewables - development, conservation, and management of non-renewables, forestry, electric NRG “Spending Power” - parliament can give payments to people or institutions or governments for purposes which they don’t have power - Pierre Elliot Trudeau Distribution of Property - prairie provinces created and kept resource rights - 1930 many transferred via Natural Resource Transfer Agreements - 91(A) Federal law made on federal property - 92(5) and 92(13) Provincial laws made on Prov. property - all property rights except: - legislative restrictions (e.g. land set aside under hospital legislation) - constitutions restrictions (e.g. lands reserved for Indians) Pith and Substance 2 - legislation may create incidental effect on another subject as long as core (pith and substance) remains within jurisdiction - e.g. fisheries act and provincial fish cannery Expropriation - compulsory transfer of land to an expropriating authority - generally in public interest - owner must be compensated Onshore minerals - Provincial owns most - exploration - development, conservation, management - export - Federal - within territories - can tax, direct (income, sales) or indirect (customs, excise(certain goods or commodities or licenses)) - Uranium Offshore minerals - S.C.C. decided fed have legislative jurisdiction and property rights over territorial sea (low water mark to 12 miles) Forestry - owned by province - harvested by private firms, province issues licenses - power to tax - may not authorize obstruction of navigable waters Fisheries - right to fish - common law: owner of water bed - tidal waters: public right Fisheries - federal 91(12) power over propriety and operational aspects - time and manner but not right to fish within waters owned by province - feds can control fish habitat ... if there is a “clear connection” to fisheries - provincial jurisdiction over harvested fish - feds and prov. cooperate to produce seamless jurisdiction (co-operative federalism) Electricity - pro. jurisdiction over hydro dams 3 Environment - divided - co-operative federalism - Federal - criminal law - fisheries - navigation and shipping - international and interprovincial rivers - POGG - EA within federal areas of jurisdiction - Provincial - regulate land use, manufacturing, resource developments - public lands - taxation - municipal institutions (land use, zoning) LECTURETWO Aboriginal Jurisdiction What is an “Indian” - Indian Act: status Indians - 91(24) constitution: - status - non-status - Metis - Inuit - what kind of laws authorized? - “rationally related to the intelligible Indian policies” - e.g. Indian property and education yes, highway laws no - lands - reserves - subject to aboriginal title (Delgamuukw v. BC (S.C.C. 1997)) ← ← Provincial Legislation - general rule: applies as long as within provincial jurisdiction - Medical (R. v. Hill (Ont CA 1907)) - highway traffic laws (R. v. Francis (S.C.C. 1988)) - labour laws (Four B. v. United Garment (SCC, 1979)) - exceptions: - singling out - Indianness - paramountcy (federal law takes president in a conflict) ← 4 - section 88 Indian Act ← - Natural Resource Transfer Agreement (NRTA) - the right to hunt, trap, fish for food in all seasons on all unoccupied crown lands - “merged and consolidated” (partially extinguished) previous treaty rights to hunt/fish commercially - Treaty Land Entitlement - Give more lands to fulfill its obligations under the treaty with the indians of the province - promise in the treaties to transfer more lands beyond original at some point in the future - request of the Superintendent General of Indian Affairs in agreement with the Minister of Mines and Natural Resources ← ← Rights of Aboriginal peoples of Canada - distinct from treaty Rights - Used to pass Indian Act which governs band councils, etc. - Aboriginal Title: a legal right derived from Indian’s historic occupation and possession of their primal lands - Aboriginal Rights: “where his ancestors had fished from time immemorial...” evidence from elders, additional verbal evidence, doesn’t require constant pattern of use ← ← Aboriginal Rights Test “Van der Peet test” - R. v. Van der Peet (SCC, 1996) ← ← Example: - Heiltsuk people habitually sold large quantities of herring to other tribes - AR to commercial fishing - pre-contact practice of harvesting wood for construction of temporary shelter - can use modern technology ← ← AR Metis - Van der Peet test changed to before “time of effective European control” ← ← Aboriginal Self-government - only for activities that took place prior European contact and were “integral” - contrast with (failed) Charlottetown accord ← ← Aboriginal Title - right to exclusive occupation of land - need to demonstrate exclusive occupation of pre-Crown sovereignty 5 - rules of evidence adapted to allow oral history - How is it different than Non-Aboriginal Title? - source is occupation, not Crown grant - range of uses must reconcile with historical use - Inalienable (cannot sell) except to Crown - Held communally - constitutionally protected (province cannot expropriate) - How are AR (AT) / TR extinguished? - Surrender voluntarily to crown or - Constitutional amendment - pre 1982 federal legislation could extinguish - will only find extinguishment when intention is “clear and plain” Treaty Rights "The court has to attempt to transport itself back to the time of signing the treaty to determine whether the Indians had reasonable grounds for believing that they were dealing with an authorized agent of the Crown, and that the resulting document created binding obligations Land Claims agreements - different than treaty rights in its language - in disputes lean in favor of aboriginals - Federal Crown fiduciary duty to aboriginal people: obligation to act on benefit ← ← *mid term question* ← What are the characteristics of a Treaty? 1. Parties: Crown and Aboriginal nation 2. Agency: signatories bind principles; =chief/chiefs and minister 3. Intention to create legal relations 4. Consideration: obligation on both sides (something of value given) 5. Formality: evidence that this was a serious agreement Section 35 of the Constitution protects Indian treaty rights need for constitutional protection: 1. uncertainty as to the precise legal status of the rights 2. right vulnerable to change or abolition by the action of a competent legislative body 3. liberal idea of equality - political clime unsympathetic to the recognition of special rights premolar to a group defied by race 4. could be modified or extinguished by constitutional amendment without consultation Aboriginal peoples: indian, Inuit and Metis, including non-status Indians 6 A person is Metis if: - self-identified - ancestral connection - community acceptance “existing” = as of April 17, 1982 - only extinguishment when intention is clear and plain - rights evolve with modern technology “recognized and Affirmed” - Li
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