scholarly journals Achieving Certainty in Treaties with Indigenous Peoples: Small Steps Towards Adopting Elements of Recognition

2019 ◽  
Vol 28 (2) ◽  
pp. 1-12
Author(s):  
John Helis
Keyword(s):  
Indigenous Peoples ◽  
Land Claims ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Negotiated Agreements ◽  
Novel Approach ◽  
Indigenous Group ◽  
James Bay Cree ◽  
The Common ◽  
The Government

The Eeyou Marine Region Land Claims Agreement (EMRLCA) with the James Bay Cree of northern Quebec contains a novel approach to achieving certainty in treaties with Indigenous peoples. For the federal government, the certainty of having the rights of an Indigenous nation exhaustively set out in one document is the benefit derived from treaties. Unlike Aboriginal rights, which the government views as ambiguous and hard to define, treaties are negotiated agreements that clearly outline rights. The goal of government when negotiating treaties is therefore to ensure that the Indigenous group can only exercise treaty rights and not their pre-existing Aboriginal rights which are recognized by the common law and the Constitution Act, 1982.

Part III Indigenous Peoples and the Canadian Constitution, C Indigenous Peoples and the Constitution Act, 1982, Ch.15 The Form and Substance of Aboriginal Title: Assimilation, Recognition, Reconciliation

2017 ◽  
Author(s):  
Macklem Patrick
Keyword(s):  
Indigenous Peoples ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Constitutional Order ◽  
Canadian Law ◽  
Aboriginal Title ◽  
Ways Of Life

This chapter highlights law’s participation in the colonizing projects that initiated the establishment of the Canadian constitutional order. Imperial and subsequently Canadian law deemed legally insignificant the deep connections that Indigenous peoples had with their ancestral territories, and imposed alien norms of conduct on diverse Indigenous ways of life. In doing so, law legitimated the manifold political, social, and economic acts of dispossession and dislocation that collectively bear the label of colonialism. The constitutional entrenchment of Aboriginal and treaty rights in 1982 formally recognized a distinctive constitutional relationship between Indigenous peoples and Canada. The judiciary has begun to see the purpose of formal constitutional recognition to be a process of substantive constitutional reconciliation of the interests of Canada and Indigenous peoples. This chapter argues that constitutional reconciliation can only commence by comprehending Aboriginal rights and title as protecting Indigenous interests associated with culture, territory, treaties, and sovereignty in robust terms.

Recent Developments in Canadian Aboriginal Law: Overview of Case Law and of Certain Principles of Aboriginal Law

2008 ◽  
Vol 10 (3) ◽  
pp. 319-350
Author(s):  
Patricia Ochman
Keyword(s):  
Supreme Court ◽  
Indigenous Peoples ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Key Concepts ◽  
Recent Developments ◽  
Aboriginal Law

AbstractThe author reviews the most recent judgments rendered by the Supreme Court of Canada and certain provincial courts, in order to provide an update in the sphere of Aboriginal law practice in Canada, destined mainly for foreign lawyers and academics. Throughout the review of those recent judgments, the author provides an overview of certain key principles and concepts of Canadian Aboriginal law. Besides providing an overview of recent judgments in the sphere of Aboriginal law, the author seeks to illustrate how meaningful the protection and recognition of Aboriginal rights and treaty rights are in practice, through the overview of key concepts and principles of Canadian Aboriginal law and how they were recently interpreted by Canadian courts. The author briefly addresses Canada's vote against the adoption of the U.N. Declaration on the Rights of Indigenous Peoples.

scholarly journals Addressing the Challenge of Overlapping Claims in Implementing the Vancouver Island (Douglas) Treaties

2020 ◽  
Vol 62 (2) ◽  
pp. 295-307
Author(s):  
Brian Thom
Keyword(s):  
First Nations ◽  
Indigenous Peoples ◽  
Land Tenure ◽  
Vancouver Island ◽  
Court Cases ◽  
Land Claims ◽  
Treaty Rights ◽  
Coast Salish ◽  
Legal Principles ◽  
Industrial Forestry

Indigenous social and legal orders are a source for addressing the challenge of overlapping claims in exercising historic treaty rights in the territories of neighbouring non-treaty Indigenous Peoples. The Vancouver Island Treaties (also known as the Douglas Treaties) of the 1850s made commitments that signatory communities could continue to hunt on unoccupied lands and carry on their fisheries as formerly. Today, as urban, agricultural and industrial forestry have constrained where people can exercise their treaty rights locally, individuals from these nations exercise harvesting rights in “extended territories” of their neighbours. Through detailing several court cases where these treaty rights were challenged by the Crown and the texts of modern-day treaty documents, I show how Coast Salish people continue to draw on local values and legal principles to articulate their distinctive vision of territory and community, both engaging and subverting divisive “overlapping claims” discourses. Not only First Nations but the state, through the judiciary, Crown counsel and land claims negotiators, also, at times, acknowledge and recognise the principles of kin and land tenure that are the foundation for addressing the challenges of overlapping claims.

Part III Indigenous Peoples and the Canadian Constitution, B Treaties, Ch.14 Treaties as Constitutional Agreements

2017 ◽  
Author(s):  
Grammond Sébastien
Keyword(s):  
Indigenous Peoples ◽  
Initial Period ◽  
Land Claims ◽  
Treaty Rights ◽  
Constitutional Protection ◽  
Canadian Law ◽  
History Of ◽  
Aboriginal Title ◽  
Oral Evidence ◽  
Domestic Law

This chapter reviews the history of treaty-making with the Indigenous peoples of Canada. After an initial period of roughly equal relationships, colonial authorities increasingly used treaties as a domestic law concept aimed at securing control over Indigenous land. The practice was continued after Confederation, but there appears to be a major misunderstanding as to the terms of those treaties, in particular as to the purported extinguishment of Aboriginal title. After a 50-year hiatus, treaty-making resumed in 1975 with the signing of ‘land claims agreements’ in most of the Canadian north. These agreements not only provide for the sharing of land, they also contain detailed provisions with respect to co-management of natural resources and, in some cases, self-government. Canadian law now affords statutory and constitutional protection to treaty rights, and courts are prepared to take into account extrinsic and oral evidence in interpreting treaties.

scholarly journals Historical Indigenous Peoples' Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title

2007 ◽  
Vol 56 (3) ◽  
pp. 583-611 ◽  
Author(s):  
Jérémie Gilbert
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Land Tenure ◽  
Potential Model ◽  
Legal Theory ◽  
Common Law ◽  
Land Rights ◽  
Land Claims ◽  
Patterns Of Use ◽  
The Common

AbstractWithin common law systems a body of jurisprudence has developed according to which indigenous peoples' land rights have been recognized based upon historical patterns of use and occupancy and corresponding traditional land tenure. Looking at the emerging common law doctrine on aboriginal or native title, this article examines how legal institutions are building a theory on historical land claims through the recognition of indigenous laws deriving from prior occupation. The article analyses how the common law doctrine builds a bridge between past events and contemporary land claims. The aim of this article is to examine to what extent the common law doctrine proposes a potential model for the development of a legal theory on the issue of indigenous peoples' historical land claims. In doing so the article analyses how the common law doctrine compares with international law when dealing with historical arguments by focusing on issues of intertemporal law and extinguishment.

scholarly journals Ibaloys “Reclaiming” Baguio: The Role of Intellectuals

Plaridel ◽  
2017 ◽  
Vol 14 (2) ◽  
pp. 49-73
Author(s):  
Jimmy Balud Fong
Keyword(s):  
Indigenous Peoples ◽  
United States Supreme Court ◽  
The United States ◽  
The Philippines ◽  
Educational Systems ◽  
Land Claims ◽  
Hill Station ◽  
National Heritage ◽  
The Government

The recognition of the United States Supreme Court of “native title” in 1909 has been recognized as a landmark decision for indigenous peoples all over the world. Also called the Cariño doctrine, the ruling honors a Baguio Ibaloy whose ancestral land would eventually be expropriated for the construction of Baguio as an American hill station, later as the Philippines’ unofficial summer capital. Fast-forward to 2014. Descendants of an Ibaloy family reclaim the land on which Casa Vallejo stands. Built in 1909, the building was originally Dormitory 4 for American soldiers. Salvador Vallejo converted it into a hotel in 1923. Persons with fond memories of the hotel claim the refurbished building is a ‘national heritage’ and should not be the subject of ancestral land claims. The year 2014 also saw the largest turnout of Ibaloys in and around Baguio for the celebration on February 23 of Ibaloi Day, at the government-designated Ibaloi Heritage Garden in Burnham Park. Products of colonial and national educational systems, Ibaloy professionals and intellectuals played key roles in the institutionalization and implementation of such activities. Despite their breakthroughs for recognition nationally through certain constitutional provisions, and internationally, are indigenous peoples now trapped in the discourse of nation?

Part III Indigenous Peoples and the Canadian Constitution, C Indigenous Peoples and the Constitution Act, 1982, Ch.16 The Section 35 Duty to Consult

2017 ◽  
Author(s):  
Newman Dwight
Keyword(s):  
Informed Consent ◽  
Indigenous Peoples ◽  
Administrative Law ◽  
International Norms ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Future Directions ◽  
Complex Relationships

This chapter examines the duty to consult doctrine, which is a particularly significant doctrine under Canada’s section 35 Aboriginal rights clause that is triggered hundreds of thousands of times a year. Since a series of cases in 2004, this doctrine has taken a particular proactive form in which the honour of the Crown leads to government duties of consultation when government decisions potentially impact on Aboriginal or treaty rights. This chapter explains the purposes and origins of this duty, considers its relationship to developing international norms on consultation and FPIC (free, prior, and informed consent), and considers a number of controversies that have emerged on the scope of its application. The chapter also examines the complex relationships of the duty to consult to administrative law contexts before turning to some final comments on potential future directions for the duty.

THE THE INDIGENOUS IDENTITY INTERPRETED AS A CATEGORY OF ANALYSIS IN POPULATION STUDIES

2017 ◽  
Vol 6 (Especial) ◽  
pp. 105
Author(s):  
Dante Choque-Caseres
Keyword(s):  
Indigenous Peoples ◽  
Methodological Approach ◽  
Indigenous Communities ◽  
Social Contexts ◽  
Indigenous Identity ◽  
Critical Thought ◽  
Northern Border ◽  
The Social ◽  
The Government ◽  
New Research

In Latin America, based on the recognition of Indigenous Peoples, the identification of gaps or disparities between the Indigenous and non-Indigenous population has emerged as a new research interest. To this end, capturing Indigenous identity is key to conducting certain analyses. However, the social contexts where the identity of Indigenous persons are (re)produced has been significantly altered. These changes are generated by the assimilation or integration of Indigenous communities into dominant national cultures. Within this context, limitations emerge in the use of this category, since Indigenous identity has a political and legal component related to the needs of the government. Therefore, critical thought on the use of Indigenous identity is necessary in an epistemological and methodological approach to research. This article argues that research about Indigenous Peoples should evaluate how Indigenous identity is included, for it is socially co-produced through the interaction of the State and its institutions. Thus, it would not necessarily constitute an explicative variable. By analyzing the discourse about Aymara Indigenous communities that has emerged in the northern border of Chile, this paper seeks to expose the logic used to define identity. Therefore, I conclude that the process of self-identification arises in supposed Indigenous people, built and/or reinforced by institutions, which should be reviewed from a decolonizing perspective and included in comparative research.

Long-term Planning: Its Importance in the Effective Administration of Social Change

1954 ◽  
Vol 13 (2) ◽  
pp. 5-10
Author(s):  
Annette Rosenstiel
Keyword(s):  
Indigenous Peoples ◽  
Large Scale ◽  
Technology Research ◽  
The People ◽  
Effective Administration ◽  
Cultural Pattern ◽  
Modern Knowledge ◽  
Catch Up ◽  
The Government

In its program for underdeveloped areas, the United Nations faces on a large scale the need to effect concrete adaptations of the habits of indigenous peoples to modern knowledge and technology. Research to determine the best methods of procedure has disclosed that, in certain areas, previous attempts on the part of administrators to introduce innovations and make changes which could not be integrated into the cultural pattern of the indigenous people proved unsatisfactory to them and costly to the government concerned. In most cases, changes in diet, crops and habits of work—let alone the introduction of industrial disciplines—may not be pressed down like a cookie-cutter on a going society. The administration of change often proves a disconcertingly stubborn affair, exasperating both to the administrator and to the people whom he seeks to catch up into the ways of "progress."

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