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Domestic Laws versus Aboriginal Visions: An Analysis of the Delgamuukw Decision. The concept most analogous to rights in the natural laws of First Nations is "relationships", whether such relationships are with one another, the land, plants, animals, sun, moon or sky Monture-Angus Fundamental to the harmonious and peaceful existence of relationships is respect.
Simple as this may sound, the laws and customs of First Peoples are embedded in oral teachings which include complex stories, legends, ceremonies and dance. These teachings are shared in the most scared of ways as well as in common, every day kinds of ways.
Today, one of the most difficult problems that First Nations face in striving to have their "rights" or "relationships" respected and recognized in a contemporary manner is, in part, the difficulty in reconciling traditional concepts of "rights" or "relationships" with modern laws rooted in the western colonial legal system.
This system continues to operate so that it is ideologically and conceptually at odds with traditional First Nations laws. This is not a necessary condition. As the specifics of First Nations legal traditions vary from nation to nation and from community to community, law making and the revival of traditions is best left with those communities and in those communities.
It would be impossible to truly teach First Nations law in this printed format and when community connection is not possible. This paper does not attempt to explain these systems of First Nations laws but, rather, we concentrate on the difficult task of justly reconciling two vastly different legal systems. It is absolute, at least from the position of First Nations, that colonialism is tenacious and wrong.
To do otherwise offers no guarantee that colonial impacts are exposed and essentially prevents the conclusion of these kinds of oppressive relations. Moreover, if ending the era of conquest by law is important to Canada, then this kind of analysis must be encouraged and respected. See Young-Ing and Smith for issues related to indigenous research and publishing. In order to accomplish the goals identified, this paper will examine the landmark case of Delgamuukw v.
This discussion illustrates the difficulty for First Nations adjudicating claims 3 options trading myths of the white lands the Canadian judicial system given the continuing institutional, structural and subjective limitations of the Canadian legal system. In our view, there has been insufficient attention paid to this form of legal analysis. However, the dynamics of ongoing legal colonialism prevent this possibility.
The acknowledgment that legal colonization is ongoing, as evidenced in part by the presence of the Indian Act and recent unilateral actions to amend itis one of our fundamental premises. We also acknowledge that the impact of this form of colonization is trans-generational and has multiplied in consequence over time.
Our purpose in writing this paper does not diminish the need to examine a complementary question or purpose which is also very often over looked in discussions or pronouncements about the meaning of Aboriginal rights: What, in fact and in law, is "the source and content of the legal rights of British settlers?
The half-sided analysis of the relationship contributes significantly to the way in which courts have gone astray in defining Aboriginal rights. It is clear that Aboriginal rights as both a linguistic and legal structure is a 20th century phenomenon, primarily 3 options trading myths of the white lands alongside the post-World War II concern with human rights. Historically, law was a tool of colonial oppression used in multiple attempts to acculturate and assimilate First Nations and their citizens, at the same time, it attempted to delegitimize and destroy their laws and traditions of First Nations.
The Eurocentric vision of two founding nations, and the constitutional dogma of exhaustive division of legislative powers in our federal system, simply left no place for Aboriginal governments in the minds of most non-Aboriginal politicians and jurists. The task that First Nations view as fundamental is to step beyond these colonial, Eurocentric and patriarchal visions of the European presence in these territories now known as Canada.
Myths such as the two founding nations must be released. One significant example is the rule that present constitutional provisions as found in sections 91 and 92 of the Constitution Act, formerly known as the British North America Actrequire exhaustive division of powers between federal and provincial governments. This paper documents a number of reasons for our conclusions. The oppression of First Nations peoples in Canada is a study of an interdisciplinary nature which focuses on politics and law.
The law, in its statutory form, was used as an effective and convenient tool to implement a myriad of government policies and rules aimed at assimilation and or disenfranchisement of First Nations while displacing them from their traditional homelands.
To give context to the type of oppression that First Nations have endured, one need only undertake a historical review of the Indian Act which represents the codification of colonial subordination of First Nations and self-serving colonial policy.
It is replete with provisions that suppressed First Nations economies, social organization including gender relationships and political structures Royal Commission Vol. Therefore, the government unilaterally amended the Indian Act and made it unlawful for Indians to engage in traditional ceremonies such as the Potlatch or Sundance: Every Indian or other person who engages in, or assists in celebrating or encourages either directly or indirectly another to celebrate, any Indian festival, dance or other ceremony of which the giving away or paying or giving back of money, goods or articles of any sort forms a part, or is a feature, whether such gift of money, goods or articles takes place before, at, or after the celebration of the same Despite the fact that this section was repealed some time agothe memory of the prohibition is still alive in the minds and hearts of many communities, kinship groups and individuals.
Furthermore Constance Backhouse notes that surviving records suggest that no whites were ever prosecuted under the Aboriginal dance provisions. A number of Indian people were jailed for carrying on these "religious" activities and we have never heard mention of any form of compensation for acts which although permissible under federal legislation clearly violated religious freedoms and caused significant harms to First Nations both individually and collectively.
Furthermore, to prevent First Nations from advancing claims, in the government enacted a provision in the Indian Act which prohibited anyone from 3 options trading myths of the white lands money for the prosecution of a claim".
Margin note to section ]. Sectionof the Act read: Every person who, without the consent of the Superintendent General expressed in writing, receives, obtains, solicits or requests from an Indian any payment or contribution or promise of any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indians to which such Indian belongs, or of which he 3 options trading myths of the white lands a member, has or is represented to have for the recovery of any claim or money for the benefit of the said tribe or band, shall be guilty of an offence and liable upon summary conviction for each such offence to a penalty not exceeding two hundred dollars and not less than fifty best books about binary options or to imprisonment for any term not exceeding two months.
It is essential to note that while limiting the right of Indians to access legal representation and bring forward collective claims, this provision more directly targeted lawyers. 3 options trading myths of the white lands infraction of this section created an offence to which only lawyers or those representing "Indians" could be charged.
In understanding the political and legal struggles of First Nations, it is essential to recognize the degree to which legal oppression has overtly and covertly been imposed upon the self-determining aspirations and rights of First Nations.
This is an important reminder for the descendants of settlers as some believe First Nations ought to just "get over it" and move ahead with the times. For First Nations there is a positive and hopefully encouraging aspect in this short reflection on history. In a relatively short period of time, our people have overcome considerable obstacles which now allows or the possibility of taking our concerns to court. An interesting bilateral consequence arising out of the impairment provided by section of the Indian Act to the advancement of Aboriginal rights 3 options trading myths of the white lands is that the bringing forward of a number of legal actions neatly coincides with the time when First Nations have been able to access post-secondary education in significant numbers including legal education.
This coalesces with a number of other factors including the development of Aboriginal and treaty rights in domestic courts and creates a dynamic tension that has resulted in significant litigation being brought to the high courts in this country. The coalescing of these dynamic factors offers us encouragement, although we still worry that it is insufficient to cause transformative change.
Although this is by no means a justification for the oppressive measures contained in the Indian Act, the analysis does demonstrate that there are a number of catalytic factors at play which 3 options trading myths of the white lands clearly lead to the development of a coherent theory of Aboriginal rights.
This development should be led by First Nations with the assistance of our non-Aboriginal relations who have taken the time and carry the commitment to form a true understanding of who we are. The analysis of the outcome of Aboriginal rights litigation has not often been 3 options trading myths of the white lands in terms of colonial oppression and it is reasonable to conclude as Peter Russell notes: These juridical wins come with a downside - a reminder of the subordinate place of native societies within the larger settler societies in which they are embedded, and of their dependence on the courts that pronounce upon their rights in that larger society.
Litigation, in and of itself, does not have a singularly negative impact or 3 options trading myths of the white lands for First Nations. Colonial relations is this present era are not that linear or explicit. Although we remain cautious about encouraging First Nations to litigate given what we know and have experienced of the Canadian legal system, we understand that litigation is more of a possibility now than it was a mere two decades ago.
To fully understand the impacts of the Delgamuukw decision, a brief acknowledgment of the history of what is now known as Aboriginal and treaty rights litigation is essential.
It is widely recognized that the Calder case in was a turning point in Aboriginal rights litigation in Canada. Among other things, this decision marked the point that Aboriginal people began to become involved in a substantive and proactive way, 3 options trading myths of the white lands litigation against the Canadian state.
There were other attempts before Calder to advance Aboriginal claims through the courts which met with frustration See Sero v Gault Ontario, and Logan v Styres20 D. Since then, litigation has become 3 options trading myths of the white lands clear strategy on which First Nations domiciled in Canada have been compelled to rely on in the last 30 years.
Section 35 calls for a just settlement for aboriginal peoples. It renounces the old rules of the game under which the Crown established Courts of law and denied those Courts the authority to question sovereign claims made by the Crown.
The Supreme Court of Canada was clear in the Sparrow decision that Aboriginal and treaty rights must be "construed in 3 options trading myths of the white lands purposive way" [R. Of equal emphasis, the court found, as follows: When the Court of Appeal below was confronted with the submission that s.
This submission gives no meaning 3 options trading myths of the white lands s. If accepted, it would result in denying its clear statement that existing rights are hereby recognized and affirmed, and would turn that into a mere promise to recognize and affirm those rights sometime in the future To so construe s.
We cannot accept that principle applies less strongly to aboriginal rights that to the rights guaranteed by the Charter particularly having regard to the history and to the approach to interpreting treaties and statutes relating to Indians This unfortunately has most often not been the case and our disappointment with the Delgamuukw decision continues to mount.
If Sparrow truly establishes new boundaries, there is a need to carefully guard the boundaries of this new frontier to ensure we are not sliding back to old colonial law making practices and processes. This need is prefaced on the recognition that 3 options trading myths of the white lands is tenacious. The embedded characteristics of colonial relations ensures it the power to self-perpetuate.
Therefore, the degree to which subsequent Supreme Court of Canada decisions respect the creation of this new frontier is an important consideration. Since the first pronouncement Supreme Court in on the meaning of section 35 1it is clear that there is no coherent and agreed upon conceptual framework for Aboriginal rights on which judicial decision making proceeds.
This void is compounded by another challenge that is discovered when one tries to reconcile the case law since the Sparrow decision. One scholar describes the problem in this way: But then inthe Court, performing like the legendary trickster, moved in the opposite direction with a clutch of decisions narrowing Aboriginal and treaty rights. In the so-called Van der Peet trilogy of case, the Court adopted 3 options trading myths of the white lands understanding of the Aboriginal rights recognized in the Canadian Constitution as reducible to the bundle of activities that could be shown to be integral to the distinctive culture of an Aboriginal people at the time of first contact with Europeans The Court has responded to this claim with a much broader view of native title, as a constitutionally recognized right, than it took to free-standing activity rights untied to traditional lands.
There is an important lesson embedded in this analysis. If the courts behave incrementally and interpret narrowly Aboriginal rights when the claims are for "activity based" interests not directly connected to their view of the land yet act more expansively when confronted by broad-based territorial claims including jurisdiction self-governmentthen First Nations should become hesitant to continue to engaged in the "activities based" approach to litigation such as trials for hunting or fishing infractions.
Of course such an opportunity does not come without a cost. Expansive litigation strategies are more costly, require extensive preparation and take more time. The Delgamuukw decision has been heralded by many as a victory. Before we are willing to join in the applause, it is essential to analyze the degree to which the court was able to "break with the past" as the courts themselves mandated in the Sparrow decision.
The celebration centres on the fact that the courts declared that oral history is equal in weight to written history, overturning the evidentiary framework 3 options trading myths of the white lands would usually have operated to exclude such evidence.
Examination of the oral history victory demonstrates precisely how the decision tastes "bitter-sweet" for many First Nations. They used those histories in an attempt to establish their occupation and use of the disputed territory, an essential requirement for Aboriginal title.
The trial judge, 3 options trading myths of the white lands refusing to admit, or giving no independent weight to these oral histories, reached the conclusion that the appellants had not demonstrated the requisite degree of occupation for "ownership".
Had the trial judge assessed the oral histories correctly, his conclusions on these issues of fact might have been very different. This is, of course, an important accomplishment.
One way of discerning the degree to which the Supreme Court of Canada decision ignores the thresholds enumerated in Sparrow is to look at the language Chief Justice Lamer selected when accepting the validity of oral 3 options trading myths of the white lands in the courtroom.