Aboriginal

A person descendant from the original peoples of North America prior to the arrival of the Europeans.

Section 35(2) of the Constitution Act, 1982 recognizes three groups of Aboriginal people: Indians (commonly referred to as First Nations), Métis and Inuit.

Source 
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology. Online. Accessed August 8, 2013; Constitution Act, 1982, Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.)

Aboriginal rights

Rights that some Aboriginal peoples of Canada hold as a result of their historical tie to the land prior to contact with the Europeans.

Source
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology.
Online: www.aadnc-aandc.gc.ca Accessed August 8, 2013

Aboriginal self-government

Government of Aboriginal peoples by Aboriginal peoples as defined by the Constitution, as a result of negotiations with federal and provincial governments.

Source 
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology. Online: www.aadnc-aandc.gc.ca Accessed August 8, 2013

Aboriginal title

An Aboriginal interest in the land. It is based on the use and occupation of the land by today’s Aboriginal peoples as the descendants of the original inhabitants of Canada.

Source: ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology.
Online: www.aadnc-aandc.gc.ca Accessed August 8, 2013

Accommodation

An obligation of the Crown that arises from consultations in good faith with Aboriginal peoples.

In a case where Aboriginal peoples are claiming a right and their claim seems strong at a first glance, the government may be obliged to take measures to avoid irreparable damage to any such right until the Court has decided the case after hearing all of the evidence.

Source : Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511

Ancestral lands

Lands that belonged to the ascendants of today’s Aboriginal peoples.

Appeal

To seek the reversal of a decision by a higher court.

Source: TERMIUM. 2005. Appeal: Rules of Court. In the Government of Canada’s terminology and linguistic data bank. Online: http://www.btb.termiumplus.gc.ca/tpv2alpha/alpha-eng.html?lang=eng&i=&index=alt&__index=alt&srchtxt=appeal&comencsrch.x=-425&comencsrch.y=-288&comencsrch=Launch Accessed August 8, 2013

Appellant

One who appeals a case to a higher court.

Source: TERMIUM. 2006. Appellant: Rules of Court. In the Government of Canada’s terminology and linguistic data bank.
Online: http://www.btb.termiumplus.gc.ca/tpv2alpha/alpha-eng.html?lang=eng&i=1&index=alt&__index=alt&srchtxt=appellant&comencsrch.x=7&comencsrch.y=7&comencsrch=Launch.
Accessed August 8, 2013

Band

A body of Indians,

1. For whom land has been set apart for their collective use and benefit
2. For whom money is held by the Crown for their collective use and benefit
3. Who have been declared to be a band for the purposes of the Indian Act.

Source: ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology.
Online: www.aadnc-aandc.gc.ca Accessed August 8, 2013;  ss. 2 and 90, Indian Act, R.S.C., 1985, c. I-5

Band council

The governing body for a band. It usually consists of a chief and councilors, who are elected to carry out band business under the Indian Act.

Source: ss. 2 and 74, Indian Act, R.S.C., 1985, c. I-5

Band Membership

Admission to a band. If the band has enacted a membership code under the Indian Act, it is responsible for maintaining the list. In this case, Indian status would not grant entitlement to band membership.

If, however, the AANDC is left in charge of the membership list, any person with Indian status has the right to band membership.

Source
FURI, Megan and Jill WHERETT. 1996. Indian Status and Band Membership Issues. In Parliament of Canada – About Parliament. Online. Accessed August 14, 2013

Constitution Act, 1867

The statute which created the Confederation of Canada. It sets out the jurisdiction of the provincial (s. 92) and federal (s. 91) legislatures.

Source: Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.)

Constitution Act, 1982

The statute which includes the Canadian Charter of Rights and Freedoms. At section 35(1), it also protects Aboriginal and treaty rights.

Source: Constitution Act, 1982, c. 11 (U.K.), Schedule B

Consultation

The obligation of the Crown towards the Aboriginal peoples, stemming from the principle of honour of the Crown. It arises when the Crown has real or imputed knowledge of an Aboriginal rights claim and it has the intention to make a decision that may have a negative impact on the right being claimed.

Source: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 S.C.R. 650

Continuum

The range of obligations the Crown may have towards the Aboriginal people during a rights claim.

On one end of the spectrum is a low potential of irreparable damage to the right by the projected government action, which carries with it a limited obligation (for example, to give notice of the government action in advance).

On the other end is a claim that seems to be strong at a first glance. A high potential of irreparable damage to a right that is very significant to the Aboriginal people triggers the obligation to consult and take action to avoid any such damage.

Source: Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511; Guerin v. The Queen, [1984] 2 S.C.R. 335

Crown

The executive branch of Canadian government.

Source: TERMIUM. 2003. Crown: Constitutional Law. In the Government of Canada’s terminology and linguistic data bank.
Online: http://www.btb.termiumplus.gc.ca/tpv2alpha/alpha-fra.html?lang=fra&i=1&index=alt&__index=alt&srchtxt=crown&comencsrch.x=-425&comencsrch.y=-288&comencsrch=Lancer  Accessed August 13, 2013

Crown lands

Publicly owned property. These are distinct from reserve lands.

Source: TERMIUM. 2013. Crown lands: Public Property. In the Government of Canada’s terminology and linguistic data bank.

Online: http://www.btb.termiumplus.gc.ca/tpv2alpha/alpha-eng.html?lang=eng&i=&index=alt&__index=alt&srchtxt=Crown+land&comencsrch.x=-425&comencsrch.y=-288&comencsrch=Launch Accessed August 13, 2013

Discretionary

A type of power that may be exercised in various different ways, depending on the judgement of the party holding the power.

Source: TERMIUM. 2012. Discretionary power: Federal Administration. In the Government of Canada’s terminology and linguistic data bank.
Online: http://www.btb.termiumplus.gc.ca/tpv2alpha/alpha-eng.html?lang=eng&i=&index=alt&__index=alt&srchtxt=Discretionary+power&comencsrch.x=-425&comencsrch.y=-288&comencsrch=Launch Accessed August 13, 2013

Dissent

The opinion of the judge(s) who disagree(s) with the majority decision.

Source: TERMIUM. 1986. Dissenting judgment: Practice and Procedural Law. In the Government of Canada’s terminology and linguistic data bank.

Online: http://www.btb.termiumplus.gc.ca/tpv2alpha/alpha-eng.html?lang=eng&i=&index=alt&srchtxt=DISSENTING%20JUDGMENT Accessed August 13, 2013

Doctrine of discovery

The notion that the first European nation to discover a land in North America has the right to ownership of that land, as it is terra nullius or land without an owner.

Source: Johnson & Graham’s Lessee v. M’Intosh , 21 U.S. 543 (1823); Worcester  v. State of Georgia, 31 U.S. 530 (1832).

Fiduciary duty; fiduciary obligation

The obligation of a trustee to act in the best interest of the beneficiary. The fiduciary relationship is born when the trustee is in a position of authority vis-à-vis the beneficiary, and has discretionary power to make decisions that affect the beneficiary’s interests.

There is a fiduciary relationship between the Crown and the Aboriginal peoples, as the Crown is in a position of authority over Aboriginal interests (such as land). The honour of the Crown demands that it fulfill its duty by guaranteeing Aboriginal and treaty rights and making decisions in their best interest.

HURLEY, Mary C. 2000. The Crown’s Fiduciary Relationship with Aboriginal Peoples. In Parliament of Canada-About Parliament.
Online http://www.parl.gc.ca/content/lop/researchpublications/prb0009-e.htm. Accessed July 22, 2013 ; Guerin v. The Queen, [1984] 2 S.C.R. 335

Governor in Council

The Governor in Council is formed by the Canadian Prime minister and his Cabinet – the Governor General makes decision on their mandatory advice.

Source: Parliament of Canada. Online http://www.parl.gc.ca/About/House/compendium/web-content/c_g_parliamentaryframework-e.htm

Historic treaties

Agreements signed between First Nations and the Dominion of Canada, prior to Confederation.

Source: ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2010. Historic treaties. In Acts, Agreements and Land Claims.
Online: www.aadnc-aandc.gc.ca. Accessed August 13, 2013

Honour of the Crown

The obligation to act honorably, as set out by the Royal Proclamation, 1763. The Crown must aim to reconcile the pre-existence of Aboriginal peoples with its affirmation of sovereignty. The honour of the Crown must be demonstrated when carrying out any obligation to an Aboriginal people mentioned in s. 35 of the Constitution Act, 1982.

Source : Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14
See also: Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511; Guerin v. The Queen, [1984] 2 S.C.R. 335

Indian

Aboriginal people who are not Inuit or Métis. They may or may not have Indian status, or be covered by a treaty.

Source
s. 2, Indian Act, R.S.C., 1985, c. I-5

Indian Act

A statute passed by the federal government; it defines who has the right to Indian status, what obligations the government has as a result, and regulates the management of reserve lands and other resources for the benefit of Indians.

Source: ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology.
Online: www.aadnc-aandc.gc.ca Accessed August 8, 2013

Indian Register

A tract of land set apart for the use and benefit of an Indian band. The Crown retains the legal title to reserve lands.

Source: ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology.
Online: www.aadnc-aandc.gc.ca Accessed August 8, 2013

Indian reserve

A tract of land set apart for the use and benefit of an Indian band. The Crown retains the legal title to reserve lands.

Source
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). Aboriginal peoples and communities. Terminology. Online. Accessed August 14, 2013

Indianness

The content of the federal power over Indians in s. 91(24) of the Constitution Act, 1867. Provincial legislation cannot apply to matters related to the status and rights of Indians, as they touch the “core of Indianness” which is exclusively federal. Any such provincial statute would be ultra vires.

Source: NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union

Inuit

An Aboriginal people living in Nunavut, Northwest Territories, Northern Quebec and Northern Labrador. An individual member of the Inuit people is called an Inuk. The language of the Inuit is Inuktitut.

Source: ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology.
Online: www.aadnc-aandc.gc.ca Accessed August 14, 2013

Judicial review

The power of a tribunal to invalidate a decision that was made while lacking jurisdiction.

Source: TERMIUM. 2010. Judicial review: Rules of Court. In the Government of Canada’s terminology and linguistic data bank. Online. Accessed August 14, 2013

Limitations

The restricted time period in which a complaint must be filed with a court.

Source
TERMIUM. 1998. Limitations period: Rules of Court. In the Government of Canada’s terminology and linguistic data bank. Online. Accessed August 14, 2013

Métis

People of mixed First Nation and European ancestry who identify themselves as Métis. Métis people are Aboriginal people who are distinct from Indians, the Inuit or non-Aboriginal people.

Source
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Acts, Agreements and Land Claims. Historic Treaties. Online. Accessed August 14, 2013

Modern treaties

Treaties negotiated between the Government of Canada and First Nations after Confederation.

Source
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology. Online. Accessed August 8, 2013

Non-status Indian

An Indian person who is not registered as an Indian under the Indian Act.

Source
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology. Online. Accessed August 8, 2013

Off-reserve

Related to Aboriginal peoples without being part of a reserve.

Source
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology. Online. Accessed August 8, 2013.

Oral history

The spoken account of people who have knowledge of past events and traditions.

Source: ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology. Online: www.aadnc-aandc.gc.ca Accessed August 8, 2013

Parliament

The law-making (or legislative) body of the government of Canada.

The Parliament of Canada comprises the following:

1. The House of Commons, made up of members (MPs) elected by popular vote
2. The Senate, made up of senators named by the Governor General on recommendation of the Prime Minister
3. The Queen, represented by the Governor General.

Source
TERMIUM. 2008. Parliament: The Legislature (Constitutional Law) In the Government of Canada’s terminology and linguistic data bank. Online. Accessed July 17, 2013.

Respondent

The party in a dispute that did not initiate an appeal.

Source
TERMIUM. 2011. Respondent: Practice and Procedural Law In the Government of Canada’s terminology and linguistic data bank. Online. Accessed August 23, 2013

Restorative justice

Restorative Justice is a special approach to determine a sentence and/or to fulfill it. It provides the opportunity for both the offender and its victim, and most of the time their relatives, to discuss their pain and travel toward reparation.

Source: Correctional Service Canada. Online. Accessed December 27, 2019.

Royal Proclamation, 1763

A legal document establishing the English Crown’s administration of North American colonies.

It set the constitutional framework for the recognition of Aboriginal rights. It protected Aboriginal land use, although the Crown remained sovereign. It also prohibited the surrender of ancestral lands to anyone but the Crown or a party with Crown authorization.

Source
L’ENCYCLOPÉDIE CANADIENNE. Proclamation royale de 1763. In Histoire- Bas-Canada. Online. Accessed July 22, 2013.

Section 1 of the Canadian Charter of Rights and Freedoms

The reasonable limits clause. This section of the Charter allows rights to be limited by legislation insofar as the limitation can be justified in a free and democratic society.

When there has been a demonstrated violation of a Charter right, the Court sets out to determine whether or not this limitation was reasonable. If the limitation was unreasonable, the legislation must be either invalidated or modified in accordance with the exercise of the right.

The conditions set out by the Oakes case are cumulative. The first condition is whether objective sought by the legislation is important enough to justify a limitation on a Charter right. Secondly, the means chosen to attain that objective must be reasonable and justifiable. There must be a) a rational link between the objective and means chosen, b) the legislation must impair the right as little as possible, and c) the effects of the measures taken must be proportional to the objective of the legislation.

The government must, in such a case, establish that the violation of a Charter right was reasonable and justified.

Source: Constitution Act, 1982 , c. 11 (U.K.), Schedule B, Part I; R. v. Oakes, [1986] 1 S.C.R. 103  

Section 88 of the Indian Act

A legislative provision that allows for provincial legislation of general application to apply to Indians, insofar as the legislation does not violate a treaty or another law. However, this does not allow provinces to infringe on the federal government’s exclusive jurisdiction over Indians set out in s .91(24) of the Constitution Act, 1867 by legislating in matters concerning Indianness.

Source: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

Section 91(24) of the Constitution Act, 1867

The provision that sets out Parliament’s exclusive jurisdiction over Indians and reserve lands.

Pursuant to a ruling by the Federal Court, Métis and non-status Indians are considered to be “Indians” within the meaning of s. 91(24), meaning that they fall under federal jurisdiction.

Source
Daniels v. Canada, 2013 FC 6

Status Indian

A person who is registered as an Indian under the Indian Act, which describes the requirements for determining who is an Indian for the purposes of the Act.

Source
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology. Online. Accessed August 8, 2013

Sui generis

The only one of its kind; unique.

Source: HURLEY, Mary. 1998. Aboriginal Title: The Supreme Court Decision in Delgamuukw v. British Columbia. Parliament of Canada—About Parliament. Online. Accessed August 23, 2013

Surrender

A formal agreement by which a band consents to give up part or all of its rights and interests in reserve lands, either for sale or for lease.

Source
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology. Online. Accessed August 8, 2013

Treaty Indian

A Status Indian who belongs to a First Nation that signed a treaty with the Crown.

Source
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Aboriginal peoples and communities. Terminology. Online. Accessed August 8, 2013.

Treaty rights

Aboriginal rights guaranteed by a treaty between a First Nation and the Crown.

These rights are protected by s. 35 of the Constitution Act, 1982.

Source
ABORIGINAL AFFAIRS AND NORTHEN DEVELOPMENT CANADA (AANDC). 2012. Acts, Agreements and Land Claims. Online. Accessed August 23, 2013

Ultra Vires

Outside of legal jurisdiction.

Source
TERMIUM. 2004. Ultra Vires: Constitutional Law. In the Government of Canada’s terminology and linguistic data bank. Online. Accessed August 23, 2013.