native studies
Sparrow:
Aboriginal rights will never infringe: Sovereignty, Underlying title, underlying power. Paragraph 47 of decision. Self government is not a rights in itself, it's practices that are rights. Sparrow was charged under the Fisheries Act for fishing with a drift net that was longer than was permitted with his Indian fishing license. Sparrow admitted the facts, but claimed that he had an existing aboriginal right to fish and thus the Act is inconsistent with 35(1) of the Constitution Act, 1982 and invalid. He was unsuccessful in the lower courts which he appealed to the Supreme Court.
Calder v. British Columbia (Attorney General) [1973]
was a landmark case. Although the court was evenly split on whether or not Aboriginal title continued to exist, it was unanimously agreed that Nisga'a title had existed. This significant agreement would pave the way for addressing Aboriginal title in Canada.
Mitchell
was a member of the Mohawk First Nation. He attempted to bring goods back across the border from the United States and refused to pay duty, claiming that he had an aboriginal right to trade that exempted him from having to pay duty on the goods. The goods were intended as gifts to another First Nation as a gift of friendship. The Crown argued that there is no aboriginal right that excludes Mitchell from having to pay duties at the border, and that even if there is it is inconsistent with Canadian sovereignty and therefore necessarily invalid. Mitchell was successful at trial and on appeal. Sovereign incompatibility. Defines rights in a restrictive way. Binnie and the two row wampum belt - where the two boats eventually converge and is represented as a merged sovereignty. ie Aboriginals trying to get across international border without paying duty and taxes : merged sovereignty. Represents assimilation.
What is prescriptive law ?
prescriptive rules (like legal rules) seek to influence, and ultimately control, the interactions between people.
What is an ideology? Why is it important to consider ideology when identifying and addressing social problems?
Opinions and beliefs that lead an collective. Find the root of motivation for peoples' actions. D'Arcy: Page 11, Ryan, Blaming the Victim. Read the first part. Set of ideas and concepts derived from systematically motivated but unintended 1) Belief system it self, way of looking at the world 2) Systematic distortion of reality reflected in those ideas 3) Must maintain status quo as prescribed by specific group
What does the Harvard Project tell us about the central features of economic development in First Nations?
Practical sovereignty -decision making Good Governance - Governing institution Cultural Reference -cultural understanding
Is it possible that through the recognition of Aboriginal rights and identities, the Crown can further entrench colonialism? Explain your answer by addressing relevant examples (a thorough answer to this can go well beyond the Coulthard reading).
"The politics of recognition in its cotemporary liberal form promises to reproduce the very configurations of colonialist, racist, patriarchal state power that Indigenous peoples' demands for recognition have historically sought to transcend" (Coulthard, 2014, p. 3) Aims to recognize self-governance within Settler-state erases self-governance and reproduces state. Who's deciding these rights? The courts Who's defining these duties? The courts Freire: This is similar to banking method because all the power lies within the institution. There is no mutually respectful dialogue. There is no equity in validation.
Take the position that, in our colonial context, Crown sovereignty = assimilation of Aboriginal peoples. Now prove it using specific examples from case law.
"Crown sovereignty has equated Aboriginal assimilation for the last few centuries. In 1888,➡️ St. Catherine's Milling case interpreted the Royal Proclamation's (1763) stance on Aboriginal title by referring to the "goodwill" of the sovereign. This implies that the sovereign can have "ill will" and can deny Aboriginal title to land, thereby making Aboriginal peoples subject to his decisions. This is assimilative because it denies their distinctiveness as nations separate from European sovereignty and control. ➡️In the case of Mitchell (2001), the Supreme Court decided that an Aboriginal right can be extinguished or limited if it conflicts with Canadian sovereignty (ex. military, international border crossing). As a result, one can argue that Aboriginal peoples are being assimilated base on their inability to maintain certain distinctive rights. Furthermore, in this case, Justice Binnie argued that Aboriginal peoples aren't Aboriginal in all contexts. For example, he argued than an Aboriginal man watching TV is no longer Aboriginal. This reflects the idea of the courts that authentic Aboriginal culture only exists in "pre-contact" times. Binnie also used the two-row wampum to argue that the two distinctive, parallel lines (representing Aboriginal peoples and colonial gov't respectively) have merged. This suggests Canadian sovereignty has resulted in Aboriginal assimilation.Finally, as seen in "Is the Crown at War with Us?", despite efforts of the Aboriginal community to maintain and protect their rights, the over-powering sovereignty of the Crown eventually resulted in their acceptance of gov't fishing liscenses; their assimilation was essentially unavoidable if they wanted to keep fishing."
In Sparrow, the court had a legal tension to solve between section 35(1) and Section 91(24). Explain these sections of the constitution and how the court resolved this tension.
"Section 35(1) is the section on Aboriginal rights, included in 1982. It says that "existing Aboriginal rights and treaties are recognized and reaffirmed." Section 91(24), on the other hand, says that the government has jurisdiction over "Indians and the lands reserved for Indians". The tension then arises on how to balance Aboriginal rights and gov't jurisdiction. The Court resolved this tension with the Justification test, which was introduced in 1990's Sparrow Case. In essence, its steps require Aboriginal people to prove how the infringement is unreasonable, causing undue harm, or preventing them from exercising the right how they please. The gov't then needs to justify its infringement by presenting a valid legislative objective (ex. conservation), and demonstrating how it has upheld its trust-like relationship while pursuing non-exhaustive factors like consultation, compensation etc. Ultimately, this test allows the court to protect Aboriginal rights, yet also let the gov't infringe if "need be"".
Explain how Pamajewon seems to foreclose the possibility of "self-government" being recognized as an Aboriginal right.
"The Pamajewon case seems to foreclose this possibility because it reaffirmed the statement made in Sparrow, that "sovereignty, legislative power, and underlying title of lands is vested in the Crown." The Court simply decided that the Pamajewon claim to self-gov't was too broad and therefore impossible to deal with (despite colonial sovereignty not being considered "too broad"), and changed the claim to one of regulating high stakes gambling instead. It essentially shut down the idea of self-gov't as an Aboriginal right on the grounds of it being too broad a topic."
What is the duty to consult and accommodate? When is it used?
"The duty to consult and accommodate is used when government legislation or action threatens to infringe upon a confirmed or claimed Aboriginal right. The duty itself is a sliding scale, depending on the strength of the claimed right, as well as how adverse of an impact the infringement will have. The stronger the claim, or the worse the impact, the more the gov't has to consult with Aboriginal peoples. If it's truly strong, they might also have to accommodate or change their plans. Importantly, this duty only applies to the government, not to third parties."
What is included in Section 35 of the Constitution Act, 1982:
(1) The existing aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, Aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada. (3) Treaty rights includes rights that already exist and those that may be acquired. (4) Ab and treaty rights guaranteed equally to male and female persons.
What is the duty to consult and accommodate ?
- The duty means that Aboriginal peoples must be consulted if there is potential infringement upon their rights. - Accommodation can occur where the claim is strong or the impact is large - When there is a potential infringement of a right.
what are the steps to the Aboriginal rights test ?
1. Identify the claimed right by looking at government legislation and the Aboriginal activities. 2. Prove that the right exists by looking at practices, customs and traditions as they existed pre-contact. 3. Justify an infringement of the right by showing that the Crown balanced the Aboriginal right with the needs of broader society.
Provide a functional definition of racism and explain its main parts.
Chris John: Provide a functional definition of racism and explain its main parts. "Ideology of dehumanization designed to conceal or deny material content of dispossession." Main components: Ideology: A way of thinking, motivation for actions, basis of policy and theory, creates unity, a way of making sense, distortion of reality Dehumanization: Take away basic human rights, human qualities, treat them like animals, Ex: Land being taken away and children being taken away Material content: Land, resources, lasting effect: fishing, hunting, gathering rights Discrimination: Differential treatment based on factors pertaining to an ideology. Dispossession: Taking away something which belongs to another Material content, culture, language sometimes means discrimination, sometimes means prejudice, sometimes meaning both
What is colonialism?
Colonialism: Structural and Psychological relationship - look up definition Psychological in that average people have become accustomed to asking for rights. Structures are firmly in place. Courts and good governance embedded within the Crown. Colonization is a pervasive structural and psychological relationship between the colonizer and the colonized and is ultimately reflected in the dominant institutions, policies, histories and literatures of occupying powers. The main focus is through education and law. Section 35 is not what it was envisioned. It is not self-governance. It is infringement tests and how to determine rights. It becomes about activities, customs, and traditions; not about self-governance. It's about behavior. Montour: Degrees of disconnection, institution is important to dislocate people.
Manitoba Metis Federation:
Court is willing to use Honour of the Crown to hold court to a certain behavior. Crown must abide by fundamental values of the law. Crown failed to live up to their honor when distributing Metis land.
Honour of the Crown
Crown has to keep its promises when related to treaties and treaty-like relationships. It is used as a way to justify legal interpretation. If there are multiple ways of enacting legislation, then whichever benefits FN most must be enacted. Is it enforceable? Can it be used for duties? It's enforceable enough to get a declaration that the Crown violated its code of conduct. Interpretative. Enforcable. Crown must keep promises.
What are descriptive LAW
Descriptive rules (like the law of gravity) describe things as they are in the world
Three kinds of duties are
Fiduciary duties Duty to Consult Honour of the Crown
Fiduciary duties
Fiduciary duties are specific to circumstance and enforceable. This is when the government must act in the best interests of First Nations. Examples include avoiding conflicts of interest, accounting for all property held on behalf of FNs, duty to consult and accommodate.
What is a fiduciary duty
Fiduciary obligations stem from the Crown enforcing First Nation surrender of lands to them ensuring that they would best protect FN rights. Because of this, Canada has a fiduciary relationship with First Nations. This fiduciary relationship is a general guiding principle that calls upon the Federal government to act in the best interests of First Nations.
Tsilqot'in:
First recognized claim to title, lost more than they gained. Crown upholds claim to title. First recognized claim to title. 5% claimed, but only 40% holds title of claim which adds up to only 2%. Title can also be infringed upon. Title proven through occupation. Government wins by default 98%.
Van der Peet:
Fishing rights, creates test for establishing Aboriginal rights = pre-contact. Dorothy Van der Peet, a member of the Stó:lō Nation, was charged for selling ten salmon that Charles Jimmy (her common-law husband) and his brother Steven had caught under their native food fishing licence. Under the licence Jimmy was forbidden from selling his catch. At trial, the judge held that the aboriginal right to fish for food did not extend to the right to sell fish commercially. This was overturned at summary appeal but the conviction was restored at the Court of Appeal.
Duty to Consult
Formal and Legal obligation for government to consult with aboriginal peoples in cases where aboriginal rights, claims, or titles are known and may be affected by a development or decision, even in cases where those rights, claims, or titles have not yet been proven in court
What is the Standard Account and what are the consequences of using it?
Government and churches had best intention. Abuses in Residential Schools was not the norm. Legacy is Residential School Syndrome. Consequences: Blame is firmly placed on the survivor. People have suffered trauma, because of that they need to be healed. Once healing is done, there is no problem. Responding to symptoms and not the cause.
How can Capitalistic values inform responses to Aboriginal social ills?
Ills: Economic exploitation, Assimilation, Domination, Racial violence, "Indian problem," Progress, Retributive vs Restorative justice, Displacement Capitalistic Values: Private ownership, individualism, accumulation of wealth, competitive market, retributive justice Responses examples: Responses that blame the victim, Money is power and control: creating consumer citizens,
What might an Aboriginal group have to show to prove a broad right to regulate their own lives?
It's not possible. They have to prove jurisdiction of Aboriginal rights. Because of Pamajewon there are limits, the opening is through title. Pamajewon: Creates bubbles of jurisdiction. Does it ever add up to a broad right? D'Arcy doesn't think it looks like a broad right. The fundamental problem is that Nations could be given jurisdiction over whatever they like, only right to regulate certain areas granted by government, not a broad right. Continuously having to prove their jurisdiction. Incredible burden on the courts.
What is the Alternate Account and what are the consequences of using it?
Residential Schools were a project of a colonial social machine. One attempt of genocide. Standard account attempts to conceal reality, there is no Residential School Syndrome Consequences: Changes focus, challenges institutional colonial violence, calls out epistemicide Likely to be longer answer:
Explain how residential schools might be viewed as a symptom of a greater process?
Residential schools were a part of a larger process of epistemicide.( a war on knowledge). They removed Aboriginal children from their families, removing them from being within a cycle of Indigenous knowledge reproduction. This erased Indigenous knowledge and practiced in several generations, stopping their reproduction in consequential generations. This reduces the knowledge of Indigenous peoples relating to their own rights, stopping them from claiming rights that challenged Canada as a neoliberal capitalist state. If we're really talking about dispossession people of their stuff, one way to do that is to get the owners of that stuff to not recognize they're the owners anymore. One of the ways to do this is residential schools, normal-by-default education, not forcing people into it but giving them no other option.
What is the rule of law? How can it be used to both undermine and strengthen oppression?
Rule of law (Every body is bound by law and equal before it. Government needs to act on legal authority, or courts step in.) 1) Law creates paramaters in which power bestowed upon government officials can be enacted, providing predictability for that society 2) Ability to seek remedy in independed court, should government act illegally 3) All are equal before law Law can be used to undermine oppression because people can use it to force their governments to follow the law. Law can strengthen oppression if laws do not protect rights properly (ex: Indigenous rights) or courts are not independent (ex: government controls them). The rule of law also strengthens oppression because it serves to erase the distinctness of Aboriginal cultures.
Explain how First Nations lives can be over bureaucratized.
Section 91(24) of the 1982 Constitution Act states the Federal government had jurisdiction over Indians and lands reserved/held in trust for Indians. This jurisdiction is held by the ministry of Indian and Northern Affairs, requiring many aspects of First Nations life to need federal approval. INAC is in charge of implementing the Indian Act and ensuring policies respond to court decisions and federal and provincial governments. These policies affect areas of First Nations and Inuit life like economic development, resource management, land development, community by-laws, etc. INAC also deals with land claims and Indian status. Because INAC is a federal ministry, their actions must respond to and consult with other ministries, mostly consulting with the Department of Justice and Treasury Board. Ex: Land claims must first go through Department of Justice, Policies on scholarships must go through Treasury board
Pamajewon:
The First Nations of Shawanaga and Eagle Lake passed laws allowing high stakes gaming to take place on reserve. The laws were not validly enacted under the Indian Act, however, the bands justified the laws as an exercise of their power of self-government. The bands were charged for keeping a common gaming house under s. 201 of the Criminal Code. They were convicted at trial and the convictions were upheld on appeal. Self-government is not a right in itself. Too broad. Self-government exists on piecemeal - particular types of behaviours.
What does the Harvard Project tell us about the central features of economic development in First Nations?
The Harvard Project indicates that viable economic development in FN communities depends on three conditions: 1) Practical Sovereignty (genuine decision making power over internal affairs such as governance, resources, and institutions) 2) Good Governance (Governing institution capable of exercising power effectively, responsibly, and reliably) 3) Cultural Reference (Cultural understanding between Government and FN conceptions of how authority should be organized and exercised) Practical sovereignty, capable governing institutions, and matching conceptions of authority enactment between government institutions and First Nations are needed for viable economic development in First Nation communities. These three core factors are Nation-building as they allow for self-rule and self-governance. The limitation of the Harvard Project is land. It does not view land as a big deal. It says that land is irrelevant unless these three conditions are met.
How can Capitalistic values inform responses to Aboriginal social ills?
The ills of Aboriginal peoples stem from an epistemicide which replaced their ways of knowing and being with colonial neoliberal capitalism. When responses to these ills act within the limitations of contemporary Settler-state governance, they are reproducing the neoliberal capitalist colonial system which perpetuates harm to Indigenous peoples. These responses are not only influenced by capitalistic values, they are limited by them. Ills: Economic exploitation, Assimilation, Domination, Racial violence, "Indian problem," Progress, Retributive vs Restorative justice, Displacement Capitalistic Values: Private ownership, individualism, accumulation of wealth, competitive market, retributive justice Responses examples: Responses that blame the victim, Money is power and control: creating consumer citizens,
What are prescriptive vs. descriptive rules? How does this relate to law?
The legal system sets up legal rules, and they are perpetuated and protected by government institutions, thereby affecting all aspects of life. Some refer to prescriptive rules as a set of tests, in that if the correct conditions are met, people's relationships will be controlled. Law does this, especially to Aboriginal peoples, as they have little control over their own lives due to different legislation."
St. Catherine's Milling and Lumber Co. v the Queen [1888]
] was a court case that for years prevailed as the dominant "guide" for Aboriginal title, until the Calder decision in 1973. St. Catherine's Milling ruled that title was a usufructory right for Aboriginal people, and existed (and could be extinguished) at the pleasure of the Crown. The St Catherine's Milling decision claimed that Aboriginal title was granted by the Crown through the Royal Proclamation.
What is a fiduciary duty?
legal duty to act in others interests
