BCFN 12 Hawthorn Report 1966 90 White Paper

BCFN 12 Hawthorn Report 1966 90 White Paper 1969

What is the Hawthorn Report? • Canadian awareness of the plight of Native peoples was not widespread before a public investigation was undertaken into the lives of the nation's Aboriginals. In 1963, anthropologist Harry 90 B. Hawthorn was appointed to head the commission • The investigation of the economic and social conditions under which Natives lived revealed some shocking statistics.

What is the Hawthorn Report? • Native communities experienced high school dropout rates as high as 94 per cent. Among the recommendations that Hawthorn made to address this specific problem was that Aboriginal peoples be 90 taught in their own languages. The most significant point that Hawthorn made, however, focused on the empowerment of local band government.

What is the Hawthorn Report? • In most regions, the Indian Department still held veto power over band council decisions (the government could and did say NO) • Many bands did 90 not control a significant proportion of the revenues generated from the lease of reserve property and resources. The consequence was the frequent absence of effective local government on reserves.

What is the Hawthorn Report? • The report also focused public attention on the unacceptable social conditions in which many Natives lived. • This forced Canadians to think about how aboriginal people 90 were treated and how this was not how they generally viewed themselves and their country.

What is the White Paper? • The government's response to the Hawthorn Report and the general climate of social reform in the 1960 s was a document called the White Paper. • The White Paper 90 proposed that the British North America Act be amended to eliminate any distinctions between Natives and other Canadians. There would be STATUS INDIANS!

What is the White Paper? • The Indian Act should be repealed altogether, the Department of Indian Affairs be scrapped, and that Natives should take over complete administration of their reserves. Federal responsibilities 90 were to be passed on to the provinces, and Natives henceforth were to be considered as individual citizens. • No STATUS INDIANS!

What is the White Paper? • In effect, any special status that Natives had possessed was to be revoked, and treaties were to be abandoned as irrelevant. Native peoples viewed these proposals both as an abandonment of 90 treaty rights as compensation for lands and as another attempt at assimilation. • The federal government eventually abandoned the White Paper in the face of almost unanimous and forceful opposition from Aboriginal communities.

BCFN 12 Calder Case 90 (1973)

What is the Calder Case? • In 1967, Frank Calder and other Nisga’a elders sued the provincial government of British Columbia, declaring that Nisga’a title to their lands had never been lawfully extinguished through treaty or by any 90 other means. While both the BC Supreme Court and the Court of Appeal rejected the claim, the Nisga’a appealed to the Supreme Court of Canada for recognition of their Aboriginal title to their traditional, ancestral and unceded lands.

What is the Calder Case? • Their appeal was a landmark move that posed considerable risk not only to the Nisga’a, but to all Aboriginal peoples hoping to have their rights and title affirmed and recognized. 90 • Why? ? ?

What is the Calder Case? • What the Supreme Court concluded was groundbreaking. While the lower levels of court had denied the existence of Aboriginal title, the Supreme Court ruled in 1973 that Aboriginal title had indeed 90 existed at the time of the Royal Proclamation of 1763. The decision was the first time that the Canadian legal system acknowledged the existence of Aboriginal title to land that such title existed outside of, and was not simply derived from, colonial law.

What is the Calder Case? • However, the Court was split on whether the Nisga’a’s claim to their lands was valid. Three judges ruled that while Aboriginal title may have existed at one point, it had since been extinguished by 90 virtue of Confederation and colonial control over the land. Three other judges affirmed the Nisga’a’s Aboriginal title, arguing that it had never been extinguished through treaty or statute. The seventh judge dismissed the case on a technicality.

What is the Calder Case? • The Nisga’a did not win their case and the ruling did not settle their land question, but it did pave the way for the federal government’s Comprehensive land claims process. The province of British 90 Columbia, however, refused to acknowledge Aboriginal title until 1990, when the British Columbia Claims Task Force was established. This led to the settling of the first modern land claim in British Columbian history, the Nisga’a Final Agreement in 1998.

What is the Calder Case? • The Supreme Court’s acknowledgement of the existence of Aboriginal title also opened the door for other Aboriginal rights cases, most notably Delgamuukw v. British Columbia (1997), which further 90 defined Aboriginal title. As a landmark case, the Calder decision continues to be cited in modern Aboriginal land claims across Canada, as well as internationally in Australia and New Zealand.

BCFN 12 R v. Sparrow (1996) 90 Delgamuukw (1997)

What is Sparrow? • In 1990, a Musqueam man named Sparrow was charged under the federal Fisheries Act with using a drift net larger than that allowed by the fishing license under which his band operated. 90 • In 1996, the Supreme Court ruled in Sparrow's favour, asserting that Aboriginal rights to fish could not simply be eliminated by provincal regulations; such rights had to be extinguished explicitly and only for good reason.

What is Sparrow? • The court also reiterated the Crown's responsibility toward Native peoples, noting that the relationship was supposed to be one of trust. These elements were to govern how Natives were dealt with 90 under the law. • The Sparrow case was the first time section 35 of the Constitution was used to affirm "existing aboriginal rights”.

What is Delgamuukw? • The Gitksan-Wet'suwet'en land claims challenge, Delgamuukw v. British Columbia, reached the Supreme Court in 1997. The decision, handed down in December of 1997, overturned much of 90 the ruling made by Justice Mc. Eachern six years earlier.

What is Delgamuukw? • The Gitksan-Wet'suwet'en land claims challenge, Delgamuukw v. British Columbia, reached the Supreme Court in 1997. The decision, handed down in December of 1997, overturned much of 90 the ruling made by Justice Mc. Eachern six years earlier.

What is Delgamuukw? • Judge Mc. Eachern had made an error in dismissing relevant and significant testimony, the Supreme Court ordered a new trial on the specific claim to lands in northern B. C. 90 • The testimony Mc. Eachern had refused to consider was oral history offered by the Gitksan-Wet'suwet'en chiefs as evidence of their long-standing use and occupancy of the territory.

What is Delgamuukw? • The court went further than this, however, in considering the question of Aboriginal title, which was designated among those "existing aboriginal rights" guaranteed in the constitution. The court 90 ruled that although Aboriginal title was not ownership, it did convey certain rights to the Native claimants.

What is Delgamuukw? • The court expanded these rights from straightforward use of the land for fishing or hunting purposes to an acknowledgment of a particular interest in the land. Therefore, the court said that the 90 Crown should use these lands only in ways that were acceptable or compatible with the interests of the relevant Native peoples.

What is Delgamuukw? • So, when the government wanted to do something, like issue logging permits, or build a dam, the courts said the federal or provincial government might infringe on such title 90 • The court established that the Natives concerned would have to be consulted and compensated.

Elements of Negligence • Negligence is proven by using a series of criteria: 1. 2. 3. 4. 5. Duty of care The reasonable person 90 Foreseeability Causation Burden of proof

Duty of Care • In a negligence lawsuit, the plaintiff must demonstrate the defendant owed him or her a duty of care—a specific legal obligation to not harm others or their property. • Duty of care can be highly specific or apply more generally to the 90 public. • Example: each motorist owes everyone a duty of care while driving. • If the court decides the defendant did not meet his or her duty of care, the defendant can be found in “breach of duty of care. ”

The Reasonable Person • When determining if a defendant is in breach of duty of care, the court uses the “reasonable person test” to determine the level or standard of care that should be expected. • A reasonable person is defined as an “ordinary adult” without any disabilities. 90 • Although this person does not actually exist, the reasonable person is thought to be careful and considerate. • The definition of a reasonable person may also depend on location. For example, what is considered reasonable in a rural area may not be so in an urban area and vice versa.

Youths • Similar to the Youth Criminal Justice Act, a young person is not judged in the same manner as an adult for negligence. • There is no legislation regarding youth and torts in Canada. Courts deal with torts that involve youth on a case by 90 case basis. • Children who are 6 or 7 years old are not held liable for any negligent actions. • However, if youth participate in an adult activity, such as hunting, they are generally held to an adult’s standard of care.

Foreseeability & Causation • Part of the reasonable person test involves foreseeability—a person’s ability to anticipate the specific result of an action. • If a court decides that a reasonable person should have been able to predict, or foresee, the injury created, the 90 defendant can be found liable, or in breach of his or her duty of care. • Causation occurs when the defendant was in breach and the defendant’s actions directly led to the plaintiff’s injuries or loss.

Proving Harm or Loss • • For a negligence suit to be successful, plaintiffs must prove they suffered real injury or economic loss. The following questions are asked to prove negligence and harm: 1. Does the defendant 90 owe the plaintiff a duty of care? 2. Did the defendant breach the standard of care? 3. Did the defendant’s actions cause the plaintiff’s injury or loss? 4. Was there a direct connection between the defendant’s actions and the plaintiff’s injury or loss (causation)? Furthermore, was it foreseeable? 5. Did the plaintiff actually suffer harm or loss?

Burden of Proof • In a civil trial, the plaintiff is responsible for proving that negligence occurred. • Similar to a criminal trial and any other civil trial, defendants do not have to actually prove anything, though many decide to present evidence on their behalf regardless. 90 • Proof is determined using the balance of probabilities. • If a plaintiff successfully meets the burden of proof for negligence, it means the court believes the plaintiff’s version over the defendant’s.

Defences for Negligence • There are three common defences to negligence: 1. Contributory negligence 2. Voluntary assumption of risk 90 3. Inevitable accident ***The best possible defence to negligence is to argue that no negligent action occurred at all.

Contributory Negligence • If both the plaintiff and defendant are found to be negligent, any damages or blame will be divided between them. • Contributory negligence occurs when the alleged victim created at least part of the harm that he or she ended 90 up suffering. • This defence is often used in lawsuits involving motor vehicle accidents. For example, if one driver was speeding and another ran a stop sign, both drivers are negligent. • Courts use actual percentages to determine responsibility in contributory negligence cases.

Voluntary Assumption of Risk • Knowingly accepting factors that may cause harm or injury leads to this defence. • In certain situations and activities, people are aware of the risks involved. • Common examples include contact sports, 90 stunts. extreme sports, and • For many high-risk activities, a waiver is required to minimize potential lawsuits. • A waiver is a document that releases or excuses a party from liability if an accident or injury occurs (e. g. a hockey league makes players sign a waiver).

Inevitable Accident • Also referred to as “act of God, ” this defence is used to argue that although an accident occurred, it was not anyone’s fault. • Example: If an accident occurs after a vehicle or plane is struck by lightning, it is difficult to assign blame or argue that 90 the resulting harm was foreseeable. • Inevitable accident means that the harm could not have been reasonably prevented.

Motor Vehicle Negligence • There are several possible negligent acts that involve motor vehicles. • Violating any section of a provincial Highway Traffic Act can be seen as negligence. • In motor vehicle accidents, the burden of 90 to the defendant. For proof can be shifted example, once the plaintiff has proven that he or she was hit by a car, it is then up to the defendant to argue why the defendant is not liable. • If contributory negligence exists, any damages awarded to the plaintiff will be reduced.

Vicarious Liability • This type of liability occurs when a person is held responsible for another person’s actions. • Example: If a father allows his son to drive the family car and the son causes an accident, the father may also be held partially responsible because he owns the 90 car. • Parents are commonly found to be vicariously liable for their children’s torts. • Vicarious liability is very common in the workplace as employers are usually held responsible for their employees’ actions.

Occupiers’ Liability • An occupier is a person who controls and supervises an establishment or property. • A duty of care is owed by an occupier to any guests who may enter or visit the property. • A licensee is someone who visits a property for social reasons (e. g. dinner, a party). 90 • An invitee is someone who visits a property for more formal reasons (e. g. work, school, to shop). • Licensees and invitees have permission to enter a property and as a result are owed a duty of care by the occupier. • Most provinces have Occupiers’ Liability Acts.

Commercial Hosts • In tort law, there are two types of hosts: commercial and social. • A commercial host usually operates a hospitality business, such as a bar or restaurant. • Commercial hosts have a specific duty of care 90 customers. to monitor intoxicated • If a customer appears to be drunk, the host becomes responsible for protecting that customer’s safety (e. g. not letting him or her drive, cutting him or her off from further liquor service).

Reducing Liability • There are several measures commercial hosts can take to try and reduce their liability: – ensure that all servers are properly trained (e. g. Smart. Serve certified) – monitor patrons’ consumption of alcohol – cut people off from liquor service if they are drunk 90 – arrange transportation home for a patron – take away a patron’s car keys – alert the police – contact the patron’s family members or friends

Social Hosts • A social host has many of the same liabilities as a commercial host, but does not receive any financial benefit. • Example: If a couple throws a party at their house, they are social hosts who are responsible for their 90 guests in the same way that commercial hosts are responsible for their paying customers. • Similar precautions must be taken regarding the guests’ safety.

Medical Malpractice • Malpractice occurs when someone receives improper or negligent professional treatment. • The most common type is medical malpractice, which occurs when a health care professional fails to provide appropriate treatment. • It may also occur if 90 the patient has not agreed to a particular treatment or action. This is known as informed consent. A patient must completely understand the risks involved. • The only exception is a life-threatening emergency.

Trespassing • Torts can be unintentional, like negligence, or they can be intentional. • The main intentional torts are: – Trespass to another person (assault and battery; false imprisonment) – Trespass to land 90 – Nuisance • Trespass can be defined as being present or interfering with another’s property without that person’s consent or legal right.

Trespass to Person: Assault and Battery • In civil law, an assault occurs when there is a simple threat of danger or violence. • A person may be sued for assault if he or she intended to create fear in someone else. • Example: John tells Hilary that he will stab her. 90 • Battery is the intentional physical contact or harm caused to another person. • A person may be sued for battery if he or she directly touches someone without that person’s permission (similar to the way assault is treated in criminal law). • Example: John grabs Hilary after she asks him to stop.

Trespass to Person: False Imprisonment • If someone is falsely confined or restrained in a specific area, that peron may file a lawsuit for being falsely imprisoned. • The confinement may involve being held in a prison, but is not limited to that. 90 • Common false imprisonment lawsuits involve people who have been falsely arrested. They may sue for wrongful/false arrest and false imprisonment at the same time. • Being falsely detained may also be interpreted as false imprisonment. Physical restraint does not have to exist.

Negligent Investigation • The newest type of tort in negligence, this tort allows someone to sue police for conducting an improper investigation. • Negligent Investigation was established in Canada following the Supreme Court precedent in the case Hill v. Hamilton-Wentworth Regional 90 Police Services Board, 2007. • In that case, Jason Hill was falsely convicted in a series of bank robberies. He spent nearly two years in jail before new evidence cleared his name and he was released. He filed a negligence suit against police for the way in which they conducted their investigation.

Trespass to Land • The act of entering or crossing onto another person’s land without that person’s permission or legal authority is trespass to land. • This includes throwing an object onto someone’s land or bringing an object onto his or her land then not removing it. 90 • In rental situations, occupier or tenant rights are enforced by provincial landlord and tenant laws, which prohibit landlords from entering tenants’ residences without their permission unless there is an emergency.

Nuisance • In civil law, a nuisance occurs when a person’s unreasonable use of land interferes with the enjoyment of adjoining land by others. • Nuisance may be intentional or unintentional. • A private nuisance involves personal property. If someone’s property is being interfered with 90 consistently in a way that produces harm, the property holder may initiate a lawsuit for nuisance. • A public nuisance involves the rights of the public. It is not necessary to prove that everyone is being harmed, just a majority. • Public nuisance suits are usually brought forward by the government on behalf of citizens.

Defences for Trespass • There a number of common defences used against trespass lawsuits: 1. Consent 2. Self-defence, defence of others, and/or 90 property 3. Legal authority 4. Necessity

Consent • A common defence in trespass lawsuits, particularly trespass to person cases, is consent. • A defendant must establish that he or she had consent to physically touch someone (like in contact sports, for 90 example) or enter onto someone’s land. • This defence is very similar to voluntary assumption of risk.

Self-Defence • As in criminal law, self-defence may be used in trespass cases if the defendant can establish that his or her use of force was reasonable, necessary, and not excessive. • Defendants may also come to the defence of others or defend their property using the same 90 criteria for the use of force. • In defending their property, people cannot set traps or harm trespassers on purpose.

Legal Authority & Necessity • Similar to the criminal law defence of legal duty, a police officer may use the defence of legal authority in lawsuits for assault and battery or false imprisonment. • This includes having to use force against people (arrests, detainments) 90 or entering onto their property (search warrants). • Certain situations may exist in which a defendant can argue that an act of trespassing occurred out of necessity. • This includes emergencies (going for help) or reclaiming his or her belongings.

Defamation • Injuring a person’s character or reputation is known as defamation. • There are two basic types of defamation in civil law: slander and libel. • There also several basic defences used in defamation cases: 90 truth, absolute and qualified privilege, and fair comment. • In a defamation case, a plaintiff must prove: – – The words used by the defendant were false. The words used referred specifically to the plaintiff. The words were read or heard by a third party. The words caused harm and/or economic loss.

Slander & Libel • Slander occurs when a person’s character has been defamed verbally. • This includes spoken words, gestures, sounds, and even facial expressions. • Slander is often difficult to prove as the action is not recorded in any way. 90 • Libel occurs when a person’s character has been defamed in written form. • This includes permanent visual and audio recordings, publications, and memos. • Over the past several years, there has been a significant increase in libel cases as a result of the Internet.

Truth & Fair Comment • If a defendant can prove that the comment he or she made or wrote about the plaintiff was in fact true, the defendant may be found not liable in a defamation case, even if the plaintiff’s reputation was damaged. 90 • Many media critics may also use the defence of fair comment, which allows them to criticize the work of artists for the general public (e. g. movie or food critics). • Critics are supposed to focus on the work and avoid personal attacks on the artist.

Privilege • Absolute privilege is a defence against defamation that is used by people in public roles, such as politicians and judges. • Example: Politicians cannot be sued for comments they make inside the House of Commons, even if they accuse other politicians 90 of lying. • Qualified privilege is a defence against defamation that is used by people who express an honest opinion as part of their job. • Example: A teacher writes a negative comment about a student’s progress on the student’s report card.

Liability Insurance • Injury costs associated with motor vehicle accidents are usually very high. • As a result, it is the law in Canada that all motorists must purchase liability insurance to cover potential liabilities that they may not be able to personally afford. 90 • Many businesses and doctors also purchase their own versions of liability insurance to protect themselves against personal bankruptcy if they are sued by clients, employees, or patients.