Law 340 Outline: Part 2 - Social Issues

Table of Contents

Constitutional Sections

Inuit Rights

Introduction

Constitutional Status

Reference re Eskimos” [1939] SCR 104

Inuit Challenges

Inuit Land Claims and Self Government Agreements

Inuit Traditional Law and the Creation of an Inuit Focused Jurisprudence

Continuing Challenges Facing Inuit Government

Contemporary Cases Concerning Inuit Rights

Metis Rights

Metis Identity

Cases on Metis Identity

Harry Daniels v Canada – currently at SCC

R v. Blais [2003] 2 SCR 236 (SCC) (643-650)

Alberta v. Cunningham [2011] SCC (650-663)

Metis Rights: Land Rights

Cases on Metis Land Rights

Dumont v. Canada (AG) 1988 M.J. No. 327 (665-668)

Manitoba Metis Federation Inc. v. Canada [2013] SCC

Cases on Metis Aboriginal Rights

Excerpt from R v. Van Der Peet [1996] SCJ No. 77 (673-674)

R v. Powley [2003] SCC (674-682)

Federalism: s. 88 Indian Act

Cases on Section 88

Dick v. R [1985] SCC (702-710)

Tsilhqot’in on IJI – Provincial Law & Ab Title

Grassy Narrows

Aboriginal Women: Abuse/Land

Discrimination: Matrimonial Property

Derrickson v. Derrickson [1986] 1 SCR 285

Aboriginal Women: Membership

Indian Act History

Indian Act v. Bill of Rights

Canada (AG) v. Lavell [1973] SCR 1349 (820-829)

International Law & Indian Status

Lovelace v. Canada 36 UN GOAR (No. 40) (pp. 830-835)

Legislative Reform

Litigated Reform

Child Welfare

Introduction

Indigenous Child Welfare

Indigenous Child Welfare: Contemporary Realities

Indigenous Child Welfare: Best Interests of the Child Test

Racine v. Woods [1983] 2 SCR 173

H. (D.) v. M. (H.) [1999] 1 SCR 761 (pp. 903-904)

Lavoid v. Lavoie Isaac

Child Welfare: Self Governance

Constitution: s. 35 & Child Welfare

Federal Legislation: Why not occupy the Field

Band By-Laws & Paramountcy

S. (E.G.) v. Spallumcheen Band Council (pp. 914-918)

Provincial Law & Delegated Agencies in BC

Challenges of Aboriginal Control

Case Illustrating Challenges of Aboriginal Control

Jane Doe (Public Trustee of) v. Awasis Agency of Northern Manitoba [1990] (937-939)

Customary Child and Family Relations

Casimel v. Insurace Corp of BC [1993] BCJ No. 1834 (942-952)

Criminal Justice: Discrimination

Historical Realities

Contemporary Realities

Systemic Racism

R v. Williams [1998] 1 SCR 1128 (pp. 1060-1069)

Criminal Law: Aboriginal Traditions and Justice (1072-1104)

R v. Machekequonabe [1897] S.J. No 98 (pp. 1076-1078)

R v. Jacko [1997] O.J. No. 2472 (pp. 1078-1084)

Reforming the CJS

R v. Moses [1992] Y.J. No. 50 (pp. 1085-1104)

Criminal Justice: Reform

R v. Gladue [1999] SCC (pp. 1105-1115)

R v. Ipeelee [2012] SCJ No. 13 (pp. 1119-1135)

Aboriginal Self Government & Justice Systems

Constitutional Sections

Section / Subsections
35 / (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 Metis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons
25 / The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty, or other rights of freedoms that pertain to aboriginal peoples of Canada including
a)any rights or freedoms that have been recognized by the Royal Proclamation of October 7th, 1763; AND
b)Any right or freedoms that now exist by way of land claims agreement or may so be acquired
S. 25 of the Charter ensures that s. 35 is exempt from charter scrutiny, and also entrenches the Royal Proclamation
91(24) / 24. Indians, and Lands reserved for the Indians

Importance of S. 35

Reference re: Secession of Quebec (1998) SCC / “The “promise” of s. 35, as it was termed in R v. Sparrow recognized not only the ancient occupation of land by aboriginal peoples, but their contribution to the building of Canada, and the special commitments made to them by successive governments. The protection of these rights, so recently and arduously achieved . . . reflects an important underlying constitutional value”
-> Recognizes that s. 35 is a bridge b/w crowns historic and contemporary relations with aboriginal peoples; also blueprint for future interaction of parties in manner tat recognizes importance of historic relations

Inuit Rights

Introduction

Basics /

Distinct group of people in Canada
51,000 in Canada; 22,000 are located in Nunavut
Distinguishing characteristic of these people is their way of life

enabled them to live year round on the tundra, north of the tree line, in conditions demanding resourcefulness, strength and patience
Allowed them to fashion a technology more complex than that of any other pre-industrialized culture, which allowed economically efficient and comfortable way of life throughout North America

Locations of Distinct Groups /

Labrador
Artic Quebec
Southern Baffin Island
Northern Baffin Island
Foxe Basin
Southampton Island
Western Hudson bay
Barren Grounds
Central Arctic Coast
Mackenzie Delta

Constitutional Status

35 / 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.
Inclusion of Inuit in 35(2) indicates / 1)Aboriginal and treaty rights in 35(1) are not restricted to “Indians” but to any aboriginal people in Canada
2)The Inuit are recognized as separate and distinct by the constitution

Many Inuit groups have entered into land claim agreements in last 25 years
Provides good opportunity to incorporate traditional law and legislative power into contemporary agreements

Section 91(24) of the Constitution Act

Uncertain surrounding provincial or federal responsibility for Inuit

Reference re Eskimos” [1939] SCR 104

“Indian” in 91(24) includes “Eskimo”

Facts / Provinces of Quebec, Nova Scotia, New Brunswick are in a debate with federal government regarding who has the legislative responsibility for the Inuit during the depression
Issue / Are “Eskimo” included under “Indians” in 91(24) of the Constitution?
Held / Yes.
Why? / Question: when Canada was formed in 1867, what did “Indian” mean? Were Eskimos and Indians considered the same? Originalism
Variety of documents and formal correspondences from around the time of confederation which use the term “Eskimo Indian” or some variation thereof, or use the term Eskimo as interchangeable with aboriginal, or Indian, or as representing one tribe of Indians. Both referred to as savages.including:

1856 Committee of House of Commons report
1867 resolution of senate
1867 presentation by senior officials of Hudson’s Bay company to HC
1762 report of Government of Quebec
1849 report of Bishop of Newfoundland
1879 correspondence b/w John A. Macdonald and Sir Dector Langevin

Rule / The term “Indians” in the Constitution includes “Eskimos” or Inuit.

Inuit Exclusion from Indian Act

s.4(1) of Indian Act / A reference in this Act to an Indian does not include any person of the race of aborigines referred to as Inuit

Inuit Challenges

1. High Arctic Relocations

What were they? /

Government of Canada, acting under guise of paternalism and assuming that this was best for the Inuit, relocated many of the Inuit of Baffin Island to remote places of the arctic
1950’s another round of relocations occurred – forcibly removed from northern Quebec to places around arctic

Motivated by Cold War and a desire to have presence in northern Canada

People were divided into different places, forcibly moved from homes, tales of isolation
Evidence that bearcats in Ottawa expressed concerns

Result /

Resulted in distrust of government action by Inuit
The relocations hardship, as the Inuit did not have a good understanding of their new surroundings and suffered as a result:

Lack of amenities
totally different food source (now had to rely on seals and other marine mammals)
no communication
lack of transportation
RCMP the only support

1996 Apology for artic relocations /

Federal Government placed 10 million dollars in high arctic relocation trust fund with hope of reconciling Inuit relocates with the government of Canada
Did not apologize at the time the trust was issued

2010 Formal apology for arctic relocations /

“on behalf of the Government of Canada and all Canadians we would like to offer a full and sincere apology to Inuit for the relocation of families from Inukjuak and Pond Inlet to Grilse Fiord and Resolute Bay during the 1950s”
“government failed to act on its promise to return anyone that did not wish to stay in the high arctic to their old homes”

2. Numbers as Inuit Names

Facts /

In the 1940’s the Inuit were given disc numbers, recorded on a special leather ID tag, like a dog tag
Government aided by churches missionaries, who saw their traditional names as shamanism/paganism
Encouraged people to take Christian names
Many contemporary Inuit carvers artists sign art w/ their number to recall this dark chapter of Canada’s past
Kikkik is an example of this (she was assigned a numbered name)

3. RCMP Sled Dog Slaughter

Facts /

Inuit allege that RCMP slaughtered hundreds of their sled dogs between 1950 and 1975
Led to starvation and further urbanization of Inuit people, further dependence on HBC
2010 report by Judge Ames Igloiorte, head of Qikitani Truth Commission concluded that these dogs could be hazardous to the public, but that the government response to these problems (killing the dogs) was disastrous to the Inuit

Apology and aftermath /

Quebec government has apologized and paid compensation
Federal government has yet to apologize

Inuit Land Claims and Self Government Agreements

Background / Negotiation of land claims and self-government agreements with the federal government has been part of the Inuit reality for more than two decades
James Bay and Northern Quebec Agreement (1975) /

Agreement is btw Inuit of Nunaki, Provincial and Federal Governments
Has 31 sections which define special rights, such as:

Inuit land ownership and use
Harvesting rights
Environmental protection
Creation of regional public institutions, including government, school and hospital boards

Additionally, Inuit received $90 million in compensation

Inuvialuit Final Agreement (1984) /

First comprehensive land claim agreement in North West Territories
Provides:

Surface rights to 90,650 square km of land
subsurface rights to 12,950 square kilometers of land
harvesting privileges
environmental protection
social development fund
$45 million in compensation

Nunavut Land Claims Agreement (1993) /

Largest land claims agreement in Canadian history
41 articles include:

Title to some 352,240 square km of land

Clear rules of ownership, rights and obligations towards land, water and resources of Nunavut
$1.14 billion in compensation

Also called for the creation of Nunavut

Nunavut Territory /

85% percent Inuit -> allows for the Inuit to pursue self-government through a public government structure
Has incorporated Inuit values and beliefs into a modern system of government-> examples such as:

Working language is Inuit language
Each department has Inuit employment plan to increase number of Inuit in public service
Number of departments involved in preserving and promoting Indian culture and values (school curriculum and economic development)

Labrador Inuit Land Claims Agreement Act (2005) /

Original land claim filed in 1977, negotiations did not begin until 1990

Inuit will own and govern 15,800 square km of Labrador
Will also co-manage 72,520 square km
Also receive 3% of prominent mining project
$140 million up front and $115 through implementation

Inuit Traditional Law and the Creation of an Inuit Focused Jurisprudence

Inuit Law: 4 Core Concepts

Piqujaq /

“Things that have to be done”
Relational term which focuses on wish of an authorized person

Obligation to respect oral, non-codified, rules of Inuit society
Only authorized persons have the right to make these rules

Maligaq /

“Things that have to be followed”
Relational term which focuses on result of request

What had to be followed in an inherent manner
The obligation to obey and do what is asked of you rather than trying to be a leader

Tirigusuusiit /

“Things that have to be avoided”
Face consequences for transgressing them

Observance of special rules, usually with respect to game
Refraining from doing what is not allowed (taboos)

Inuit Qaujimajauqangit /

Includes unwritten traditional knowledge, as well as family and political structures, learning and social development schemes and even the understanding of local weather patterns

Living technology for rationalizing through and action, organizing tasks, resources, family and society into a coherent whole

The Gifts of Sedna: Cultural Maliqaq

Story /

Sedna rejected advances from Inuit youth to marry a raven and go live with him
The raven promised her a beautiful metropolis
When she arrived it was not so, he house was full of holes and she slept on walrus hides
Father comes to visit her and killed the raven after hearing of the outrages; takes Sedna home
The other ravens chased after the boat and were gaining; her father tried to throw Sedna overboard to save himself
Sedna clung to the edge of the boat, dangling, and her Father cut off her fingers, which fell into the ocean and became whales and seals
They made it home, but Sedna wanted revenge, so she let her dogs gnaw off the hands and feel of her father while he slept
After this the earth opened up and swallowed the son, the daughter and the dogs

Possible Themes to take out /

Piqujaq –
Maligaq- obligation to love and respect others
Tirigusuusiit – don’t harm the animals

Nunavut as Living Laboratory for Development and Application of Inuit Law

In 2008, Nunavut legislative assembly passed four acts that develop Inuit law in democratic setting:

Midwifery Profession Act
Education Act
Official Languages Act
Inuit Language Protection Act

S. 27.1(1) of the Language Protection Act(*note – Wildlife Act, Family Abuse Prevention Act contain similar provisions / (1) The following general principles and concepts of Inuit Qaujimajatuqangit
apply in respect of the exercise of the powers and performance of the duties of the
Languages Commissioner under sections 28 to 35 and section 37:
a)Inuuqatigiitsiarniq (respecting others, relationships and caring for people);
b)Tunnganarniq (fostering good spirit by being open, welcoming and Inclusive)
c)Pijitsirniq (serving and providing for family or community, or both);
d)Aajiiqatigiinniq (decision making through discussion andConsensus)
e)Piliriqatigiinniq or Ikajuqtigiinniq (working together for a common cause);
f)Qanuqtuurniq (being innovative and resourceful).

Oral Traditions Project: Perspectives on Traditional Law

Respect for wildlife is marked feature of Inuit culture – plays important role as new and old traditions clash
Respect for wildlife implies that people do not kill for fun

Continuing Challenges Facing Inuit Government

Conciliators Final Report: Nunavut Land Claims Agreement Implementation Planning Contract Negotiations for the Second Period /

Canada and Nunavut have been unable to agree on terms of continuing implementation
Article 23 calls for increasing Inuit participation in government employment in the Nunavut area to a representation level
However, only 45% of the public sector in Nunavut are Inuit (compared to the 85% of the population that is Inuit)
Problem is with education and language, only 25% of Inuit graduate high school – are not qualified for higher level positions
For 75% of Inuit, they speak their native tongue at home, 15% don’t even know English. But English is official language
We need to implement a real bilingual system (as opposed to one where they learn a little in their native tongue and a little in English)

Contemporary Cases Concerning Inuit Rights

Kadlak v. Nunavut (Minister of Sustainable Development) [2001] Nu. J. No. 1

Application of Sparrow Principles to Inuit Right under Nunavut Land Claims Agreement

Rule / Infringement of aboriginal right that does not comply w/ principle of minimal interference cannot be justified.
Facts /

Π is a hunter in the eastern arctic and is beneficiary under the Nunavut Land Claims Agreement
Wishes to hunt polar bear using traditional methods and technology – this is very dangerous
Applied to Nunavut Wildlife Management Board
Denied because Δ deemed it to be an unwarranted risk to public safety

Issue / Was the denial of π request on the grounds of public safety justified by Δ?
Held / No.
Why? / Inuit Land claims agreement provides that Inuk shall have right to harvest; may employ any method or technology to do so, so long as it does not conflict with laws of general application; had years to adapt system of hunting that reflects traditional patters [10]
Inuit right of harvest proclaimed in Nunavut Land Claims agreement is protected under s. 35…. Provisions of land claim agreement are to be given large, liberal and purposive interpretation [13]
Ministers action constituted prima facie infringement of aboriginal right [16]
Broad definition of public safety is accepted – allows for regulation of risks assumed by individual hunters as members of public
However, this does not meet the principle of minimal interference articulated in Sparrow. Would represent outright prohibition of traditional Inuit harvesting activity

Nunavut Tunngavik Inc v. Canada (AG) [2003] Nu. J. No. 2

Administrative Law Interfering with Protected Inuit Right

Rule / Government act that potentially infringes protected aboriginal right should be read in harmony with aboriginal right and the detrimental effects minimized as much as possible.
Facts /

Federal government enacted Firearms Act which calls for universal licensing and registration scheme for firearms
Π resist the application of this to beneficiaries for the Nunavut Land Claims Agreement [NLCA] as they say it is inconsistent with rights guaranteed under NLCA
Protection of individuals right to harvest is particularly important in Inuit culture – protected under s. 35 of the constitution
Scheme under the NLCA raises confusion, one provision seems to accord with Firearms while another could, under a broad interpretation of it, make the Firearms Act inapplicable to beneficiaries of the NLCA

Issue / Should beneficiaries of the NLCA be required to register firearms for harvesting food under the Firearms Act?
Held / No.
Why? / Difficulties with compliance:Significant numbers of Inuit do not speak English or French. The paperwork for registering guns is only available in English or French [30]
Prosecution for non-compliance: beneficiaries who risk non-compliance with the act in order to carry out harvesting activities would face potential prosecution [31]
Not feasible for Inuit to simply not hunt for food and live on commercial supplies due to the inflated price of commercial supplies [35-39]
Providing Inuit opportunity to avoid the universal licensing scheme for gathering food would not frustrate public safety purpose of Firearms Act– would still have to comply when purchasing new firearms – would not affect public safety – very limited exception [48]

Metis Rights

Metis Identity

35 / 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.
35(2) / 1)Aboriginal and treaty rights in 35(1) are not restricted to “Indians” but to any aboriginal people in Canada

Metis Identity Generally

Report of Royal Commission /

“Metis” were result of intermarriage of aboriginal women and European settlers
Distinct cultures emerged combining European and First Nations or Inuit heritages in unique ways

Metis were Important Economic Partners /

Economics: the special qualities and skills of the Metis made them indispensable members of the Aboriginal/non-Aboriginal economic partnerships and that association contributed to the shaping of their cultures
Extended non-aboriginal contacts deep into north America as interpreters, guides, diplomats, guides, couriers, freighters, traders and suppliers

What sets Metis Apart from other Aboriginal Peoples? /

Primarily culture that sets the Metis apart from other aboriginal peoples
Metis people associate themselves with a culture that is distinctly Metis
Grew out of industry roles

distinct language (Michif) combined French and Indian languages
need to travel inspired unique travelling songs, dances, fiddle music and decorative clothing
in all cases the unique culture developed organically, their characteristics determined by social and economic circumstances that germinated and nourished them

Metis Dispersal into Western Canada & Western Treaties /

As their rights continued to not be recognized in Manitoba, there was armed conflict and they generally migrated west
But there was racism from aboriginal peoples as well and they generally became a people without a land not recognized by anyone

Two Views of Metis Identity

Red River
Western Canada Based - diaspora / 4 Unique Aspects
1)Michif Language

Aspects of French, English and Ojibwa
More than a pigeon language
Becomes very prominent in red river area

2)Songs

Distinctive songs were important part of their religion

3)Stories
4)Buffalo Hunt/Law

Declarative based on Law, in addition to culture/stories
This was a significant economic activity and they had special laws concerning it

Inter-marriage
Canada-Wide View / Criteria(Pauley):
1. Self-Identifying
2. Ancestral Connection
3. Community Acceptance / Metis genesis outside Red River area (e.g. Great Lakes region)
Borrows:
- Courts typically not hospitable to these claims
- We see this distinction manifesting in Metis politics (below)

Metis Citizenship & Problems

The debate about the true nature of Metis identity (whether they are confined to Red River area vs. Metis people as a distinct homogenous nationwide group) has led to several problems
Metis Political Representation in Canada / - There are several Metis organizations in Canada and debate has arisen as to what is true Metis identity and which of the organizations is legitimate
- 2 national organizations:

Metis National Council
Congress of Aboriginal Peoples

- Also a Metis Settlements General Council that represents Metis who are situated on land settlements in northern Alberta (unique to Alberta)
Problems due to fragmentation & debates about identity /

Don’t have fishing and trapping rights due to lack of treaties
Hard to get financial backing, as they really don’t have a land base
Popular understandings for Metis are even more fragmented than for Inuit
Sometimes claim to face double discrimination from both prov/fed gov. and from Indians

Social Cultural and Economic Circumstances /

404,000 in Canada as of 2006
Generally same SES problems as first nations
Very hard hit by assimilation practices – many tried to pass as white, communities went underground
Especially “scrip” program required them to be split up individually and get their own land plots

Destroyed any sense of community or continuity
Now a landless people – social and political institutions are often poorly funded

Debate about whose jurisdiction they fall under – federal or provincial

Neither side has taken ownership (with exception of Alberta)
No uniform social services for Metis people
The same benefits that aboriginal groups get do not extend to metis
Excluded from both relevant federal and provincial policies

Metis in Relation to First Nations