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native studies final exam (4)
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native studies final examWhat is Fiduciary Responsibility, 3 examples - ANS-• Responsibility to act in best
interest of Aboriginal peoples
• Paternalistic relationship - Crown has discretion to decide what is in best interest of
Aboriginal people
• Legal obligation - Crown must uphold to protect indigenous people and their rights
What are Aboriginal Rights (court definition) - ANS-• Right includes right to practice and
activities considered to be distinctive to a culture at the time of contact (inherit right) -
ext: fish, hunt, trapping, etc
• Practices/activities central to their way of life - ex: Metis - bison hunt, Inuit - seal
hunting
• Test is applied to determine distinctive culture
R v Van der Peet - ANS-• Mary Van der Peet of Stolo First Nations charged for selling
salmon without a license
• Van Der Peet argues - selling salmon is current modern manifestations of pre contact
practices
• Found guilty - appealed to Supreme Court and still found guilty: selling salmon not
integral to Aboriginal culture but secondary (fishing: integral; selling, trading: not
integral)
Aboriginal title (court definition) - ANS-• Royal Proclamation of 1763 first to recognize
Aboriginal title - protect indigenous people from encroachment of European settlers
• Right to exclusive to occupancy of a traditional territory (property right)
• Aboriginal land cannot be sold to just anyone - must be dealt through the Crown
R v Tsil'qhotin - ANS-• Indigenous nation residing in central BC - never signed treaty or
land claimed with Crown
• 1980 - Government issued logging permits
• Tsil'qhotin attempted to block logging on their land and also ask for recognition for AB
title - back and forth in court - Court ruled in favour of Tsil'qhotin
Treaty rights (court definition) - ANS-• Involve extinguishment of land or exhaustion of
title and culture (yield, cede, surrender)
, • In exchange for: monetary, continue to practice fish, hunting, spiritual practices,
self-government, etc
• From Numbered Treaties to Modern Treaties follow the same guide line with
surrendering land title and exhaustion of culture in exchange for monetary etc but not all
treaties are identical in what was given in exchange for land
R v Marshall - ANS-• Mikmaq commercial fishing rights in the East Coast, Nova Scotia
• Peace and Friendship Treaty - right to trade - Mikmaq interpretation: right to
commercial fishing
• Government argued: Mikmaq did not have right to commercial fishing
• Supreme Court ruled in favour of Mikmaq having the right to commercial fishing
Duty to Consult (court definition) - ANS-• Duty to consult and accommodate - if
Government (Crown) wants to infringe on Aboriginal rights, they must consult and
accommodate Aboriginal group in question first
• Fiduciary responsibility and the honour of the Crown
• Duty to consult lies with the Crown and not the third party
Clyde River et al v PGS et al - ANS-• Dealt with oil and gas permits in the high Arctic,
Nunavut
• National energy board issued permits for seismic surveys (type of exploration of oil
and gas) - massive impact on fishery affecting creatures living in the ocean caused by
impact of seismic surveys
• Still no decision made to date and resulting in 4 years delay on construction of seismic
surveys
Great Whale River Hydroelectric Project - ANS-• In northern Quebec in Cree and Inuit
territory - expansion on James Bay Hydroelectric project to create dams and flooding
areas in the process
• Cree and Inuit people were not happy and suffered from project for their hunting and
fishing
• Cree and Inuit tactic was to travel by water to New York where electricity was to be
sold to in protest of it - Cree and Inuit won in the end as New York withdrew from
purchase agreement in 1992
Matthew Coon Come - ANS-• Spokesperson for opposition in the Great Whale River
Hydroelectric Project
• Grand Chief, Quebec Council of Crees
• Help with protest/campaign to block actions to the dam
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