Aboriginal Peoples and the Law

Aboriginal Peoples and the Law

EDITED BY Bradford W. Morse
Copyright Date: 1985
https://www.jstor.org/stable/j.ctt9qf405
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  • Book Info
    Aboriginal Peoples and the Law
    Book Description:

    Aboriginal Peoples and the Law by Morse, Bradford.

    eISBN: 978-0-7735-8355-9
    Subjects: Sociology

Table of Contents

  1. Front Matter
    (pp. iii-iv)
  2. Acknowledgements
    (pp. v-viii)
  3. Table of Contents
    (pp. ix-xviii)
  4. Preface
    (pp. xix-xx)
    Bradford W. Morse
  5. Introduction
    (pp. xxi-xxvi)
    BRADFORD W. MORSE

    The position in Canadian law of the Indian, Inuit and Metis peoples (hereinafter referred to collectively as the “Aboriginal Peoples”) is a unique one. More importantly, their experience with colonialism and their relationship to white society occupies a central role in the political, social, military, and economic history of the territory now known as Canada.¹

    That the Aboriginal Peoples are still a force in present Canadian society was shown by the patriation process, the terms of the Canadian Constitution,² the First Ministers and Aboriginal leaders constitutional conferences of March 1983 and 1984,³ the special 1982-83 inquiry of the Parliamentary Standing...

  6. TABLE OF CASES
    (pp. xxvii-xxxii)
  7. TABLE OF STATUTES
    (pp. xxxiii-xxxviii)
  8. Chronology of Key Events
    (pp. xxxix-xlvi)
  9. 1. Aboriginal Peoples and the Law
    (pp. 1-15)
    BRADFORD W. MORSE

    Although this subheading appears to pose a very simple question, it cannot be answered without a definition of the term “Aboriginal People”. A lack of precision and consistency in the use of this term has created a continual problem and source of confusion. This author is using the phrase “Aboriginal People” to encompass all people who trace their ancestors in these lands to time immemorial. This means that the term subsumes all Indians, whether registered under the Indian Act¹ or not, the Metis, and all Inuit (also known as “Eskimos”).

    The Government of Canada has received the authority under s....

  10. 2. Aspects of Aboriginal Rights in International Law
    (pp. 16-47)
    MAUREEN DAVIES

    We the Indigenous Peoples of the world, united in this corner of our Mother the Earth in a great assembly of men and wisdom, declare to all nations:

    We glory in our proud past:

    when the earth was our nurturing mother,

    when the night sky formed our common roof,

    when Sun and Moon were our parents,

    when all were brothers and sisters,

    when our chiefs and elders were great leaders,

    when justice ruled the Law and its execution.

    Then other peoples arrived:

    thirsting for blood, for gold, for land and all its wealth,

    carrying the cross and the sword, one...

  11. 3. Aboriginal Title
    (pp. 48-121)
    DAVID W. ELLIOTT

    Long before the arrival of John Cabot on the shores of eastern North America in the late fifteenth century, the native people were here. They had been here for many thousands of years. Recent excavations in the extreme north-western parts of Canada are providing evidence that indigenous people used and occupied this continent at least 80,000 years ago.**

    The fact that the Aboriginal People were here first is at the core of the notion of aboriginal rights or aboriginal title. Building on this idea of original use and occupancy, Peter A. Cumming has defined aboriginal rights in “Native Rights and...

  12. 4. Pre-Confederation Treaties
    (pp. 122-271)
    BRUCE H. WILDSMITH

    Indian treaties are written documents. Although they may be incomplete in the sense that all spoken promises, representations and interpretations may not have been reduced to writing, in the final analysis words were committed to paper and signed by British colonial or Canadian federal government representatives, and Indian representatives. Bodies of law have been developed which apply to written documents, and in some respects different principles or rules apply, depending upon how the document in question is classified. What is the nature of or classification applying to Indian treaties?

    Excerpt from P.A. Cumming and N.H. Mickenberg (eds.),Native Rights in...

  13. 5. Post-Confederation Treaties
    (pp. 272-407)
    NORMAN K. ZLOTKIN

    After the Treaty of Paris of February 1763 which confirmed Britain’s acquisition from France of Canada, Florida, and the Ohio Valley, the British Government set about pacifying the Indian Tribes. On 7 October, King George III issued the Royal Proclamation of 1763, establishing governments in Quebec and Florida, and outlining future methods of dealing with Indian nations. No settlement was to be allowed west of the American colonies “on pain of our Displeasure”. These “Lands and Territories” were to be reserved to the Indians. Within the various “Colonies,” lands could only be acquired from the Indian tribes at a public...

  14. 6. Constitutional Issues in Native Law
    (pp. 408-451)
    NOEL LYON

    Section 91(24) of the Constitution Act, 1867 gives the Parliament of Canada exclusive legislative authority over “Indians, and Lands reserved for the Indians.” Such authority gives rise to federal questions about the scope of the power so conferred and about the applicability of provincial laws to Indians and on reserve lands. These questions are the easiest to define because they involve the interpretation of a familiar legal text that fits into an established body of interpretative case law.

    But the federal division of powers is only one feature of the constitution, however well litigated, and its consideration should be set...

  15. 7. The Application of Provincial Laws
    (pp. 452-466)
    DOUGLAS SANDERS

    Federal jurisdiction over “Indians, and Lands reserved for the Indians” both permits federal legislative action and excludes the application of certain provincial laws. In Canadian constitutional law, provincial laws can be held inapplicable to a federal subject matter in two different situations: (1) if the provincial law is in conflict with valid federal legislation, and (2) if the provincial law affects the character of the federal subject. This second proposition is put in differing ways in the cases: does the provincial law affect Indians “as” Indians? Does the provincial law affect the “status” and capacity” of the federal entity or...

  16. 8. Reserve Lands
    (pp. 467-578)
    RICHARD H. BARTLETT

    “In [Lower Canada] the native tribes had, from a period as remote as the middle of the 17th Century up to the Conquest, been under the especial care and direction of the Jesuit Missionaries, who collected some of them in settlements which now exist, obtained grants of land for them from the French Crown, to be applied to their education and civilization, and became themselves their instructors in so much of the knowledge and arts of life as they thought it advisable to impart to them.”

    1845 Report on Indian Affairs

    In 1829 the need in Upper Canada was suggested:...

  17. 9. Taxation
    (pp. 579-616)
    RICHARD H. BARTLETT

    The material in this chapter examines the powers of an Indian band to levy taxation and the extent to which Indians are subject to taxation under federal or provincial authority. Neither the Inuit nor the Metis are generally possessed of power to impose taxation or to be exempt therefrom.

    The significance of the power to tax should be clear. In modern society it is an essential attribute of government, without which policies of social and economic development cannot be pursued. The denial of the ability ofothergovernments to tax a community, such as an Indian band, may secure the...

  18. 10. The Resolution of Land Claims
    (pp. 617-683)
    BRADFORD W. MORSE

    It should be clear from the preceding chapters that the indigenous people were the sole original owners and occupants of what is now known as Canada. English common law has recognized the validity of this ownership for some three centuries, acknowledging that it gave rise to a legally recognized interest in the land possessed by the individual Indian nation or Inuit community. This interest has been generally described as “aboriginal title” and has been defined as analogous to a usufructuary interest in land.

    British recognition of aboriginal title resulted in the necessity for purchasing this interest, which was done in...

  19. 11. The Implementation of the James Bay and Northern Quebec Agreement
    (pp. 684-694)
    WENDY MOSS

    The federal policy of settling outstanding native claims based on Indian title and Aboriginal rights has, since it was announced in 1973, produced only one significant concluded settlement — the James Bay and Northern Quebec Agreement.¹ Although the James Bay Agreement is essentially a modern version of the treaties concluded one hundred years ago between the Government of Canada and the prairie Indian peoples, it is otherwise an unprecedented chapter in Indian-government relations in Canada. For example, unlike the older treaties, the James Bay Agreement unquestionably has the legal status of a contract, and most — if not all —...

  20. 12. Canada’s North and Native Rights
    (pp. 695-744)
    PETER CUMMING

    Canada is at least the equal of any of the advanced societies in the world. It has all the technological benefits of the industrial society with the attendant high standards of living. This growth has meant that the public sector has been able to provide Canadians with all kinds of social services. However, the growth of the Canadian industrial state has not yet so changed the social and physical environment as to compromise traditional values. Canada is a free society with the traditional core values and institutions remaining intact.

    True, the forces of significant economic and cultural change constitute a...

  21. 13. Aboriginal Rights in International Law: Human Rights
    (pp. 745-794)
    MAUREEN DAVIES

    Since World War II, the community of nations has become increasingly concerned with developing standards of conduct in the field of human rights to which all nations aspire. This concern has been manifested in the Charter of the United Nations, the International Bill of Rights, and an ever increasing number of conventions, declarations and covenants. In addition to the activities of the United Nations, regional systems have established codes of conduct and legal machinery to deal with violations of human rights. There can be no doubt that human rights considerations have become a legitimate concern of the World Community legally,...

  22. Supplement to the Revised First Edition
    (pp. 795-884)

    Litigation has occurred at a phenomenal rate over the last five years as Aboriginal people turned to the courts in unprecedented numbers to assert their special legal rights. It is only possible here, however, to include a few of the most significant judicial pronouncements. This collection begins with the Supreme Court of Canada decision inGuerinv.The Queenin which the Court rendered a landmark decision by declaring the Crown to constitute a fiduciary in relation to its administration of reserve lands on behalf of status Indians. This case is also extremely important for its analysis of aboriginal title...

  23. Back Matter
    (pp. 885-890)