Legal History

Lecture 2

John Allen, copyright

Indigenous First Nations (review)
● Economy based on hunting, agriculture, and trading
● To defend itself, traded fur for guns and made alliances
● Tried to preserve land and hunting grounds - fur animals over-hunted
● Different concept of land rights - owned by community, not by individuals
(though complicated by families and relations within community)
● European diseases such as smallpox, bubonic plague, and cholera killed
large populations. Estimated 90% in highly populated Mexico and Peru. Large
percentage in North America, though may have taken longer.
● Germ warfare used by the British in 1760s - blankets infected with smallpox
Britain after the conquest of New France (review)
● Britain conquered French Canada in the 1750s, Britain borrowed heavily,
hiring tens of thousands of German soldiers. Britain was facing a credit crisis.

After Britain gained control of North America - Link

● Most of the First Nations wanted to continue to trade with the French, which
was more profitable. British originally tried to dominate/conquer First Nations.

● Confederacy of First Nations started in 1763, attacking the forts in New York,
Detroit and Ohio - Called Pontiac’s War - link
Royal Proclamation of 1763 / Treaty of Niagara 1764
● Royal Proclamation 1763: “...essential to Our Interest and the Security of Our
Colonies, that the several Nations or Tribes of Indians, with whom We are
connected, and who live under Our Protection, should not be molested or
disturbed in the Possession of such Parts of Our Dominions and Territories
as, not have been ceded to, or purchased by Us, are reserved to them, or any
of them, as their Hunting Grounds…”
● Treaty of Niagara 1764 - see Borrows article saved in folder
● Crown representative met with 2,000 Chiefs representing 24 First Nations
from all over, from Nova Scotia, to Mississippi, to Hudson Bay
● Oral promises made at the public meeting which then became a treaty
Royal Proclamation and Treaties
● Treaty of Niagara - covenant chain - an alliance, friendship, two vessels,
travelling down the river together…
● How should the Royal Proclamation be interpreted by the court?

● Discussion -
● St. Catharines Milling 1887 link / Bear Island case 1984 link
● Calder (Nishga) case 1973 link, and discussed below
● Restoule case Trial / Ontario CA / SCC / Settlement?
● A “living tree”? Heads Up - we will discuss this method of interpreting a
Constitution in the second half of the course
Indigenous Property Rights & Governance
● P.48 of text: “Indigenous law is difficult to classify because there are hundreds
of Indigenous peoples in Canada and no single Indigenous legal tradition.”
● Although procedural laws were not written, “[m]any have a deliberative aspect
and are developed ‘through councils, circles, and other informal meetings and
gatherings.” (p.50)
● Generally, land was owned by the community, and so, land treaties must be
approved by the community at a public meeting.

● Semester 6 - Indigenous Legal Perspectives, PLBA 3506

Indian Act, 1876
● 1876 Indian Act (113 years after the Royal Proclamation) intended to:
1. Remove Aboriginal people from their homelands
2. Suppress Aboriginal nations and their governments
3. Undermine Aboriginal cultures
4. Stifle Aboriginal identity
● Residential schools, beginning in the 1800s, and ended in 1996
○ Truth and Reconciliation 2015 / comparison to reform schools
○ Canadian government apologized in 2008 (Stephen Harper)
○ As part of the 2006 Indian Residential School Settlement Agreement, the
Truth and Reconciliation Commission was created
White paper - 1969
● (“White paper” means a policy document)
● PM Pierre Trudeau and Minister of Indian Affairs Jean Chretien
○ Aware that First Nations had higher poverty rates, higher infant mortality, lower life
expectancy, lower levels of education, contaminated water, poor living conditions, etc.
○ Started a national program of consultation, then ignored it -
● Solution? White paper would (i) eliminate Indian status, (ii) convert reserve
land to private property, (iii) transfer responsibility to the provinces, (iv)
address outstanding land claims and gradually terminate treaties, (v) provide
gov’t funding for a transition period. Goal: Assimilate First Nations.
● First Nations opposed the White Paper and organized politically in 1970s
Report of the Royal Commission, 1996
● Canada was founded on a series of bargains with Aboriginal peoples
● Bargains that Canada never fully honoured
● Treaties between Aboriginal and non-Aboriginal governments were
agreements to share the land
● They were replaced by the Indian Act
● Truth and Reconciliation - what does it mean?
● Humber Land acknowledgement - Why does Humber have this? What does it
say? Does it go far enough?
Have treaties been honoured?
● Constitution preserves these treaties
● Section 25 of the Constitution 1982: “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 or freedoms that pertain to the
aboriginal peoples of Canada including (a) any rights or freedoms that have
been recognized by the Royal Proclamation of October 7, 1763.”
● Section 35 of the Constitution: The existing aboriginal and treaty rights of the
aboriginal peoples of Canada are hereby recognized and affirmed

● Kahoot
Debate
Wealth and education (2015) link

Discussion:

Canada’s treatment of our First Nations - will Truth and Reconciliation happen in
Canada?
Important cases
● 1973 Calder (Nisga’a) case: In a split decision, the SCC recognized the
Aboriginal title to unceded land (contrary to the St. Catharines mining of 1887)
● 1984 Guerin: Fed Gov’t has a fiduciary duty to First Nations
● 1990 Sparrow: Aboriginal rights are protected under s.35 of Charter, and
infringement must be justified - reasonable and for a legitimate purpose
● 1997 Delgamuukw - how evidence must show First Nations title to land,
including oral evidence - can be owned jointly with another First Nation
● 2004 Haida - Fed gov’t duty to consult pending treaty
● 2014 Tsilhqot’in Nation - land claim proved; duty to consult discussed
United Nations Declaration
● The General Assembly adopted United Declaration of the Rights of Indigenous
Persons (“UNDRIP”) in 2007. Canada voted against UNDRIP in 2007.
“Affirming that indigenous peoples are equal to all other peoples…”
● Political concern? Article #26: Indigenous peoples have the right to the lands,
territories and resources which they have traditionally owned, occupied or
otherwise used or acquired. Article #28: Indigenous peoples have the right to
redress, by means that can include restitution…
● Canada publicly committed to UNDRIP in 2016 link
● Fed legislation in June 2021 adopted and required federal gov’t to take all
measures necessary to make Canadian law consistent with UNDRIP.
● So far, only province of BC has adopted it. link