The Constitution…cont’d

The Constitution…cont’dThe Constitution…cont’d

the living tree doctrine: a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times.

must be read within the context of society to ensure that it adapts and reflects changes

A house built on a foundation of sand is unstable, A house built on a foundation of sand is unstable, no matter how beautiful it may look no matter how beautiful it may look

and how many people rely on it. and how many people rely on it. It would be better to lift the house It would be better to lift the house

and place it on a firmer foundation, even if this and place it on a firmer foundation, even if this would create some real challenges for people in would create some real challenges for people in the house. Ultimately, this would benefit all within the house. Ultimately, this would benefit all within the house, by prolonging the life of the structure the house, by prolonging the life of the structure

and creating benefits for its inhabitants for and creating benefits for its inhabitants for generations beyond what would be possible if it generations beyond what would be possible if it collapsed because of its unsupported weight.collapsed because of its unsupported weight.11

John Borrows, “Questioning Canada’s Title to Land: The Rule of Law, Aboriginal Peoples and Colonialism” in John Borrows, “Questioning Canada’s Title to Land: The Rule of Law, Aboriginal Peoples and Colonialism” in Law Commission of Canada & British Columbia Treaty Commission, eds., Speaking Truth to Power: A Treaty Law Commission of Canada & British Columbia Treaty Commission, eds., Speaking Truth to Power: A Treaty

Forum (Ottawa: Law Commission of Canada, 2001) [hereinafter Speaking Truth] 35. as quoted in Forum (Ottawa: Law Commission of Canada, 2001) [hereinafter Speaking Truth] 35. as quoted in Treaties vs. Treaties vs. Terra Nullius: “Reconciliation,” Treaty-Making and Indigenous Sovereignty in Australia and CanadaTerra Nullius: “Reconciliation,” Treaty-Making and Indigenous Sovereignty in Australia and Canada (as (as

citation 1), Angela Pratt, Indigenous Law Journal, Vol.3, Fall2004, p.44citation 1), Angela Pratt, Indigenous Law Journal, Vol.3, Fall2004, p.44

https://tspace.library.utoronto.ca/bitstream/1807/17116/1/ILJ-3-Pratt.pdf https://tspace.library.utoronto.ca/bitstream/1807/17116/1/ILJ-3-Pratt.pdf

Royal Commission on Royal Commission on Aboriginal Peoples (RCAP)Aboriginal Peoples (RCAP)

The Royal Commission on Aboriginal The Royal Commission on Aboriginal Peoples (RCAP), in its preamble to its Peoples (RCAP), in its preamble to its summary of recommendations, urges that summary of recommendations, urges that a a "renewed relationship between "renewed relationship between Aboriginal and non-Aboriginal people in Aboriginal and non-Aboriginal people in Canada be established on the basis of Canada be established on the basis of justice and fairness."justice and fairness."11

Terra NulliusTerra NulliusDoctrine of DiscoveryDoctrine of Discovery

RCAP recommends that Canadian RCAP recommends that Canadian governments acknowledge that the governments acknowledge that the "concepts ... of terra nullius and the doctrine of "concepts ... of terra nullius and the doctrine of discovery are factually, legally, and morally discovery are factually, legally, and morally wrong.“wrong.“

Urges Canadian governments to declare "that Urges Canadian governments to declare "that such concepts no longer form part of law such concepts no longer form part of law making or policy developments by Canadian making or policy developments by Canadian governments.governments.44

Natural and Roman lawNatural and Roman law55 and included in and included in European common law traditions, "continuous European common law traditions, "continuous use and possession of the land from time use and possession of the land from time immemorial"immemorial"66 legitimated land title. legitimated land title.

The doctrine of discovery, consequently, The doctrine of discovery, consequently, gave the discovering power, or party, the first gave the discovering power, or party, the first right of occupation if there were no previous right of occupation if there were no previous inhabitants. Secondly, if there were inhabitants. Secondly, if there were inhabitants, the discovering power had the inhabitants, the discovering power had the first right to trade with, and to negotiate with, first right to trade with, and to negotiate with, the newly discovered people(s) issues of the newly discovered people(s) issues of allegiance, sovereignty, and land sharing. allegiance, sovereignty, and land sharing.

Canadian Canadian Journal Journal of Law of Law and and SocietySociety

Volume 17 No. Volume 17 No. 2, 20022, 2002ContentsContents

Michael AschMichael AschFrom Terra From Terra Nullius to Nullius to Affirrmation : Affirrmation : Reconciling Reconciling Aboriginal Aboriginal Rights with the Rights with the Canadian Canadian ConstitutionConstitution

http://www.utpjournals.com/http://www.utpjournals.com/cjls/CJLS-172.html cjls/CJLS-172.html

AbstractAbstract

The Canadian state presents itself as tolerant, The Canadian state presents itself as tolerant, anti-colonial and self-critical. anti-colonial and self-critical. Yet, the legal Yet, the legal justification for the Crown's acquisition of justification for the Crown's acquisition of sovereignty and jurisdiction concerning sovereignty and jurisdiction concerning Indigenous peoples and their lands, relies on Indigenous peoples and their lands, relies on the colonial era doctrine of terra nullius which the colonial era doctrine of terra nullius which is based on the proposition that Indigenous is based on the proposition that Indigenous peoples were sufficiently inferior to enable the peoples were sufficiently inferior to enable the Crown to presume that their territories were Crown to presume that their territories were unoccupied.unoccupied. This paper discusses how the doctrine This paper discusses how the doctrine of terra nullius becomes applied in Canadian law and its of terra nullius becomes applied in Canadian law and its limitations as an acceptable proposition at this time in limitations as an acceptable proposition at this time in history. It then discusses and evaluates alternatives to history. It then discusses and evaluates alternatives to that doctrine which have been proposed in various that doctrine which have been proposed in various quarters in order to determine the possibilities for the quarters in order to determine the possibilities for the conceptualization and establishment of a political and conceptualization and establishment of a political and legal relationship between First Nations and Canada legal relationship between First Nations and Canada that is post-colonial in its approach and practice. that is post-colonial in its approach and practice.

Age of ‘Discovery’Age of ‘Discovery’Because most of the new found lands had inhabitants, Because most of the new found lands had inhabitants, and the traditional legal doctrine hindered expansion, and the traditional legal doctrine hindered expansion, the term "terra nullius" the term "terra nullius" changedchanged to mean lands that to mean lands that were uncultivated according to European standards were uncultivated according to European standards i.e., where the inhabitants had no fixed residences but i.e., where the inhabitants had no fixed residences but roamed the territory like "wild beasts in a forest”roamed the territory like "wild beasts in a forest”– Spanish colonizers drew upon Aristotle's teaching on 'natural Spanish colonizers drew upon Aristotle's teaching on 'natural

servitude.‘servitude.‘– some settlers denied the very humanity of the Indigenous some settlers denied the very humanity of the Indigenous

populationspopulations

Australian film, online, Terra NulliusAustralian film, online, Terra Nullius– http://www.nfsa.gov.au/digitallearning/mabo/mabo_03.shtml http://www.nfsa.gov.au/digitallearning/mabo/mabo_03.shtml

Laws have to……….Laws have to……….

Meet legal challenges and approval of Meet legal challenges and approval of citizens.citizens.They must be enforceable.They must be enforceable.Should present a balance between Should present a balance between competing interests.competing interests.Should do what they are intended to do.Should do what they are intended to do.Be within the jurisdiction of the authority Be within the jurisdiction of the authority making the law.making the law.Must be constitutional!Must be constitutional!

Canada: Canada: Written and Unwritten ComponentsWritten and Unwritten Components

WrittenWritten components include the Constitution Act components include the Constitution Actss, , 1867 & 1982, including the Charter of Rights and 1867 & 1982, including the Charter of Rights and FreedomsFreedoms

– Two parallel acts: Two parallel acts: Canada Act, 1982 (UK) and Canada Act, 1982 (UK) and the the Constitution Act, 1982 (Canada)Constitution Act, 1982 (Canada)

Canada could now amend without UK approvalCanada could now amend without UK approval

full political and constitutional independencefull political and constitutional independence

UnwrittenUnwritten conventions are also important, and conventions are also important, and influence some of the most vital aspects of governance influence some of the most vital aspects of governance in Canadain Canada

Canada’s ConstitutionCanada’s Constitution

The British North America Act was passed by The British North America Act was passed by the British parliament in 1867 and was the British parliament in 1867 and was proclaimed into law on July 1proclaimed into law on July 1stst

It established Canada as a country with John A. It established Canada as a country with John A. Macdonald as its first Prime Minister.Macdonald as its first Prime Minister.

While the BNA act recognized Canada as a While the BNA act recognized Canada as a separate political entity, it still couldn’t make separate political entity, it still couldn’t make changes without Britain’s approval. changes without Britain’s approval.

Unwritten traditions +Unwritten traditions +

Written textWritten text

Fundamental Organizing PrinciplesFundamental Organizing Principles

1) Federalism1) Federalism

2) Democracy2) Democracy

3) Rule of Law3) Rule of Law

4) Protection of Minorities4) Protection of Minorities

CHARACTERISTICS OF CANADIAN CONSTITUTIONAL SYSTEM

Source: Dr. John Borrows

the four principles, up closethe four principles, up closeFederalismFederalism– Division of powersDivision of powers– federalism as a response to political & social realities (indeed, we federalism as a response to political & social realities (indeed, we

wouldn’t have Canada without it)wouldn’t have Canada without it)

DemocracyDemocracy– associated with majority ruleassociated with majority rule– evidence: popular franchise as the basis for selecting governmentsevidence: popular franchise as the basis for selecting governments– problems: executive dominance, PM’s undelivered “democratic reform” problems: executive dominance, PM’s undelivered “democratic reform”

proposalsproposals

Constitutionalism/Rule of LawConstitutionalism/Rule of Law– all public power must find its source in a legal ruleall public power must find its source in a legal rule

Protection of minoritiesProtection of minorities– limited protections in 1867 (religion, language)limited protections in 1867 (religion, language)– CharterCharter, 1982 (aboriginal rights, s. 15), 1982 (aboriginal rights, s. 15)

limits: reasonable limits (s. 1), “notwithstanding (s.33)limits: reasonable limits (s. 1), “notwithstanding (s.33)

big role for courtsbig role for courts

Federal SystemFederal System

While deciding what system to use in Canada, the While deciding what system to use in Canada, the Federal system seemed the best choice.Federal system seemed the best choice.– Sir George Etienne CartierSir George Etienne Cartier

Under a Federal System, the responsibilities for Under a Federal System, the responsibilities for governing were divided between two levels of governing were divided between two levels of government, the central government and the government, the central government and the provincial government.provincial government.Each government had their own jurisdictions but Each government had their own jurisdictions but the Feds could override a provincial law if it was the Feds could override a provincial law if it was seen as not in the best interest of all Canadians.seen as not in the best interest of all Canadians.Because it came from the BNA Act, it includes the Because it came from the BNA Act, it includes the monarch as the head of state and the principle of monarch as the head of state and the principle of the rule of law.the rule of law.

Division of Powers in CanadaDivision of Powers in Canada

Section 91 of the BNA act outlined the Section 91 of the BNA act outlined the federal government’s powers, usually federal government’s powers, usually matters that applied to everyone, such as matters that applied to everyone, such as postal service or currency.postal service or currency.

Section 92 outlined the provincial Section 92 outlined the provincial governments powers, such as education.governments powers, such as education.

Provinces delegated their responsibilities Provinces delegated their responsibilities to municipal governments for local to municipal governments for local matters.matters.

Federal ____ ProvincialFederal ____ Provincial

BankingBanking

Foreign affairsForeign affairs

Criminal LawCriminal Law

Public debtPublic debt

DefenceDefence

Trade and commerceTrade and commerce

Postal servicePostal service

PenitentiariesPenitentiaries

EducationEducation

Health careHealth care

Labor and Trade Labor and Trade unionsunions

Property and civil Property and civil rightsrights

Compensation to Compensation to injured workersinjured workers

MarriageMarriage

Doctrine of Ultra ViresDoctrine of Ultra Vires

Government may make laws only in its Government may make laws only in its own jurisdiction.own jurisdiction.

Called Called Intra ViresIntra Vires, within the power of , within the power of government to pass laws.government to pass laws.

If a government attempts to pass laws out If a government attempts to pass laws out of its jurisdiction it would be said to be of its jurisdiction it would be said to be Ultra ViresUltra Vires, beyond the power of , beyond the power of government to pass laws.government to pass laws.

A house built on a foundation of sand is unstable, A house built on a foundation of sand is unstable, no matter how beautiful it may look no matter how beautiful it may look

and how many people rely on it. and how many people rely on it. It would be better to lift the house It would be better to lift the house

and place it on a firmer foundation, even if this and place it on a firmer foundation, even if this would create some real challenges for people in would create some real challenges for people in the house. Ultimately, this would benefit all within the house. Ultimately, this would benefit all within the house, by prolonging the life of the structure the house, by prolonging the life of the structure

and creating benefits for its inhabitants for and creating benefits for its inhabitants for generations beyond what would be possible if it generations beyond what would be possible if it collapsed because of its unsupported weight.collapsed because of its unsupported weight.11

John Borrows, “Questioning Canada’s Title to Land: The Rule of Law, Aboriginal Peoples and Colonialism” in John Borrows, “Questioning Canada’s Title to Land: The Rule of Law, Aboriginal Peoples and Colonialism” in Law Commission of Canada & British Columbia Treaty Commission, eds., Speaking Truth to Power: A Treaty Law Commission of Canada & British Columbia Treaty Commission, eds., Speaking Truth to Power: A Treaty

Forum (Ottawa: Law Commission of Canada, 2001) [hereinafter Speaking Truth] 35. as quoted in Forum (Ottawa: Law Commission of Canada, 2001) [hereinafter Speaking Truth] 35. as quoted in Treaties vs. Treaties vs. Terra Nullius: “Reconciliation,” Treaty-Making and Indigenous Sovereignty in Australia and CanadaTerra Nullius: “Reconciliation,” Treaty-Making and Indigenous Sovereignty in Australia and Canada (as (as

citation 1), Angela Pratt, Indigenous Law Journal, Vol.3, Fall2004, p.44citation 1), Angela Pratt, Indigenous Law Journal, Vol.3, Fall2004, p.44

https://tspace.library.utoronto.ca/bitstream/1807/17116/1/ILJ-3-Pratt.pdf https://tspace.library.utoronto.ca/bitstream/1807/17116/1/ILJ-3-Pratt.pdf

Plural Legal OrdersPlural Legal Orders‘‘Legal orders’ may be understood as the norms, Legal orders’ may be understood as the norms, rules and institutions formed by a society or group rules and institutions formed by a society or group of people to ensure social stability.of people to ensure social stability.

found in every part of the world, North and South, found in every part of the world, North and South, and in all types of political systems, democratic as and in all types of political systems, democratic as well as authoritarianwell as authoritarian

Example of state legal orders: Example of state legal orders: – Indigenous peoples’ legal orders are recognised as lawIndigenous peoples’ legal orders are recognised as law

Latin America, Scandinavia and South Asia, as well as states Latin America, Scandinavia and South Asia, as well as states such as Canada, the United States, Australia and New such as Canada, the United States, Australia and New ZealandZealand

John BorrowsJohn Borrows

First Nations (FN) law is a fact of life that First Nations (FN) law is a fact of life that has persistedhas persisted

Canadian law on Aboriginal peoples Canadian law on Aboriginal peoples evolved from “inter-societal” lawevolved from “inter-societal” law

FN law FN law forms part of the family of legal forms part of the family of legal traditions in Canada, can be a more traditions in Canada, can be a more general resourcegeneral resource

FN legal sources can be translated to be FN legal sources can be translated to be accessible to outsidersaccessible to outsiders

Unwritten traditions +Unwritten traditions +

Written textWritten text

Fundamental Organizing PrinciplesFundamental Organizing Principles

1) Federalism1) Federalism

2) Democracy2) Democracy

3) Rule of Law3) Rule of Law

4) Protection of Minorities4) Protection of Minorities

CHARACTERISTICS OF CANADIAN CONSTITUTIONAL SYSTEM


Orally basedOrally based

CustomaryCustomary

Kin and ClanKin and Clan

StoriesStories

CeremoniesCeremonies

Elders or recognized keepersElders or recognized keepers

Restorative/Retributive aspectsRestorative/Retributive aspects

CHARACTERISTICS OFABORIGINAL LEGAL SYSTEMS


PeacePeace

TradeTrade

ReligionReligion

SettlementSettlement

Intermittent WarsIntermittent Wars

Preservation of Way of LifePreservation of Way of Life

Early Aboriginal History


ABORIGINALABORIGINAL

1)1) Peace and Peace and FriendshipFriendship

2)2) GiftsGifts3)3) Regularized Regularized

meetingsmeetings4)4) Wampum Wampum

exchangedexchanged

NON-ABORIGINALNON-ABORIGINAL

1)1) Peace and Peace and FriendshipFriendship

2)2) GiftsGifts

3)3) Regularized Regularized meetingsmeetings

4)4) ProclamationsProclamations

EARLY CONSTITUTIONAL RELATIONS


Archeological Archeological evidenceevidence

11,000 years11,000 years

rules in place to regulate rules in place to regulate everything from sports to everything from sports to politicspolitics

cooperative economic cooperative economic systemsystem

seven autonomous seven autonomous districtsdistrictsTimeline: Timeline: http://www.muiniskw.org/pgHistory2.htm http://www.muiniskw.org/pgHistory2.htm

Wampum beltsWampum beltsThe Mi’qmaq were part of the Wabanki Confederacy The Mi’qmaq were part of the Wabanki Confederacy of independent clans led by patrilineal chiefs who of independent clans led by patrilineal chiefs who met at intervals for regional consultationsmet at intervals for regional consultations

used wampum belts of rows of coloured beads to used wampum belts of rows of coloured beads to record consultations and transactions. record consultations and transactions. – Council discussions were recorded on Wampum Belts by Council discussions were recorded on Wampum Belts by

each tribe to record its history. each tribe to record its history. – Rows of coloured beads were used to record meeting Rows of coloured beads were used to record meeting

transactions. transactions. – Reading Wampum belts demanded special skills in Reading Wampum belts demanded special skills in

decodingdecoding

Royal Proclamation of 1763Royal Proclamation of 1763 A source of Aboriginal title to land in Canada stems A source of Aboriginal title to land in Canada stems

from King George III’s “Royal Proclamation” of 1763. from King George III’s “Royal Proclamation” of 1763. – designed to “normalize conditions in [the new designed to “normalize conditions in [the new

British] colonies … and to avoid a costly Indian war British] colonies … and to avoid a costly Indian war on the frontier.”on the frontier.”1717

– ““decreed that Indian peoples should not be decreed that Indian peoples should not be disturbed in their use and enjoyment of the land,” disturbed in their use and enjoyment of the land,” and that land held by Indians was to be purchased and that land held by Indians was to be purchased by the Crown only (not by individuals), and only by the Crown only (not by individuals), and only with the Indian peoples’ consent.with the Indian peoples’ consent.18 18

– constitutes an important example of constitutes an important example of mutual mutual recognition recognition on the part of Indigenous people and on the part of Indigenous people and British colonizers of each other’s status as British colonizers of each other’s status as independent and self-governing nations.independent and self-governing nations.1919

– Watch: http://wn.com/Royal_Proclamation_of_1763 Watch: http://wn.com/Royal_Proclamation_of_1763

http://www.bloorstreet.com/200block/rp1763.htm

The Royal Proclamation is still The Royal Proclamation is still often referred to by often referred to by

First Nations as First Nations as a “positive guarantee a “positive guarantee

of First Nation self-government.”of First Nation self-government.”

John BorrowsJohn Borrows

Burying the Burying the Hatchet CeremonyHatchet Ceremony

On June 25, 1761, a On June 25, 1761, a “Burying of the Hatchet “Burying of the Hatchet Ceremony” was held at the Ceremony” was held at the Governor’s farm in HalifaxGovernor’s farm in Halifax. .

During the ceremony, During the ceremony, treaties of peace treaties of peace and friendshipand friendship were signed between were signed between Governor Jonathan Belcher, President Governor Jonathan Belcher, President of His Majesty’s Council and of His Majesty’s Council and Commander-in-Chief of the province, Commander-in-Chief of the province, and the Chiefs from the Mi’kmaq and the Chiefs from the Mi’kmaq Nations called “Merimichi,” “Jediack,” Nations called “Merimichi,” “Jediack,” “Pogmouch,” and Cape Breton, on “Pogmouch,” and Cape Breton, on behalf of themselves and their people: behalf of themselves and their people:

TreatiesTreatiesProvisionsProvisionsNon-Aboriginal assertivenessNon-Aboriginal assertivenessand dominanceand dominanceConfederation passed without Confederation passed without Aboriginal input (except in case Aboriginal input (except in case of Manitoba’s entry into the of Manitoba’s entry into the Dominion; Peter Cope Mikmaq)Dominion; Peter Cope Mikmaq)

CONSTITUTIONAL RELATIONS CIRCA 1867


SECTION 91 (24)CONSTITUTION ACT, 1867

…the exclusive Legislative Authority of the Parliamentof extends to…

Indians, and Lands reservedfor the Indians.


Constitutional FrameworkConstitutional FrameworkThe Constitution Act, 1867The Constitution Act, 1867, (U.K.) 30 & 31 Vict., c.3., (U.K.) 30 & 31 Vict., c.3.

91.91. It shall be lawful for the Queen, by and with the Advice and It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and the House of Commons, to make Consent of the Senate and the House of Commons, to make Laws for the Peace, Order and good Government of Canada, Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures Subjects by this Act assigned exclusively to the Legislatures of the Provinces, and for greater Certainty, but not so as to of the Provinces, and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Canada extends to all Matters coming within the Classes of Subject next hereinafter enumerated; that is to say, – Subject next hereinafter enumerated; that is to say, –

……24.24. Indians and Lands reserved for Indians.Indians and Lands reserved for Indians.

1867-1973: Discontinuities

Indian Act 1876

Limited Political Participation

Outlawed Religious Freedoms

Outlawed Economic Pursuits

Residential Schools

Limited Access to Courts

Waning of treaty signing & fulfillment of promises

Explicit Assimilation Policies

Relocation Reserve & Membership Cut-off

Abo. Women lose power

Mistreatment of veterans

Inuit relocations

1951 Indian Act Amend.

Over-Incarceration

Child welfare 60’s scoop


1867-1973: Continuities

Continuation of Customary Law

Treaty Making & Recognition

Resistance

Political and Legal Advocacy

Spirituality & Language

Cultural Adaptations

Underground Practices

White Paper Rejected

Calder


Increased awareness of civil rightsIncreased awareness of civil rightsRise of Aboriginal political powerRise of Aboriginal political powerComprehensive & Specific claims policyComprehensive & Specific claims policyInternational Pressure (Lovelace)International Pressure (Lovelace)Patriation of Constitution Patriation of Constitution

1973-1982


Every individual is equal before and Every individual is equal before and under the law and has the right to under the law and has the right to equal protection and benefit of the equal protection and benefit of the law without discrimination…law without discrimination…

SECTION 15, CHARTER OF RIGHTSAND FREEDOMS


Charter Rights not to be construed toCharter Rights not to be construed to

abrogate or derogate from Aboriginal,abrogate or derogate from Aboriginal,

Treaty or other rights and freedomsTreaty or other rights and freedoms

that pertain to Aboriginal peoplesthat pertain to Aboriginal peoples

SECTION 25, CONSTITUTIONACT, 1982


Constitutional FrameworkConstitutional FrameworkCanadian Charter of Rights and FreedomsCanadian Charter of Rights and Freedoms, Being , Being Schedule B to the Schedule B to the Canada Act, 1982Canada Act, 1982, (U.K.) 1982, c.11., (U.K.) 1982, c.11.

25.25. The guarantee in this The guarantee in this Charter Charter of certain rights and freedoms of certain rights and freedoms shall not be construed so as to abrogate or derogate from any shall not be construed so as to abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to the aboriginal treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada includingaboriginal peoples of Canada including

((aa) any rights or freedoms that have been recognized by the ) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; andRoyal Proclamation of October 7, 1763; and

((bb) any rights or freedoms that now exist by way of land ) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.claims agreements or may be so acquired.

(1)(1) The existing Aboriginal and treaty rights of the The existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby Aboriginal Peoples of Canada are hereby recognized and affirmed.recognized and affirmed.

(2)(2) …“…“Aboriginal peoples of Canada” includes the Aboriginal peoples of Canada” includes the Indian, Inuit, and Metis peoples of Canada. Indian, Inuit, and Metis peoples of Canada.

(3) …“treaty rights” includes rights that now exist by (3) …“treaty rights” includes rights that now exist by way of land claims agreements or may be so way of land claims agreements or may be so acquired. acquired.

(4) …the Aboriginal and treaty rights referred to in (4) …the Aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male subsection (1) are guaranteed equally to male and female persons.and female persons.

SECTION 35, CONSTITUTIONACT 1982


1)1) ExistingExisting

2)2) Aboriginal RightsAboriginal Rights

3)3) Treaty RightsTreaty Rights

4)4) Aboriginal Peoples of CanadaAboriginal Peoples of Canada

5)5) Recognized and AffirmedRecognized and Affirmed

5 RELEVANT TERMSOF DEFINITION


Ngurrara Canvas, 1997"Home... Telling the Court about our Country"

Australia. Colossal size (measuring eight by ten metres) :ten careful, colourful harmonised patchworks, each denoting a different story, a different place, a different piece of evidence of connection and attachment to land.

In 1997, the canvas was presented to the National Native Title Tribunal as evidence of ancestral, social, economic and personal connections to land.The idea of painting the canvas was that of Ngarralja Tommy May's: "... we were wondering how to tell the court about our country. I said then if kartiya [Europeans] can't believe our word, they can look at our painting. It all says the same thing. We got the idea of using our paintings in court as evidence.“

Source: http://www.aboriginalartdirectory.com/news/feature/ngurrara-the-great-sandy-desert-canvas.php

The Constitution…cont’d

Documents

Transcript of The Constitution…cont’d