the way that british imperial law worked, and this was brought into the common law via roman precedent because the romans were the empire that the british had legal documents about and sought information about when conflicts arose, was that if you colonized an area with british subjects (terra nullius) then you introduced british law to rule over them but if you occupied or conquered an area that was already peopled (like india, or french canada) then you had to allow for them to govern themselves under their own laws.
canada was interpreted under british imperial law as a series of conquered french colonies first and foremost, and an area of unceded aboriginal land, second. so, the french colonies came under british dominion and kept their civil law traditions, which were at the time under the napoleonic code. this is why an algonquin claim about unceded territory in ontario would not be recognized under british law - it was conquered from the french. the aboriginal areas, on the other hand, were given a kind of suspended sovereignty. they could keep their land and their traditions, but only on the condition that they refused to cede their land to anybody else. specifically, the proclamation of 1763 gave the british crown the monopoly over land purchases, which american land buyers and sellers did not like one bit. it's still the law in canada, though - the crown, which now means the government in ottawa, still has a monopoly over indigenous land purchases in canada.
and, everywhere was eventually bought except for most of british columbia, which just never was. there have been some "land transfers" since then, but they've been unconstitutional under our own laws! really, the right way to look at the canadian occupation of british columbia is to compare it to the israeli occupation of palestine - people keep moving in, but there's no actual legal basis for it. the correct legal status for these areas remains defined by the 1763 proclamation, which defines them as a part of an "indian reserve", gives them ownership of their own land and denies their right to sell their land to any entity except the crown.
indigenous title in canada is not what these people actually want, as it's just another type of fief; indigenous title is not sovereign land rights, in canada. the nisga'a agreement presents a model that goes beyond "indigenous title" in the sense that it's actually a kind of peace treaty, which carves out a semi-autonomous area for the nisga'a people. i don't know what the various peoples in bc want, but if they want land rights, it's in the nisga'a agreement, and not in these judicial constructions of "indigenous title", which would keep them at the whim of the colonial government. there is not actually a way for the court system to award sovereignty...that has to be done via treaty.
so, this idea that "the white man's law" is oppressing them and allowing for this and they need to rebel against it is actually wrong, in this limited context. again: you can't apply these arguments in new brunswick, or ontario. but, in bc, british imperial law actually should forbid the application of the indian act on unceded territory, at least until a treaty is signed. the judge here is actually wrong, and the supreme court should reverse her ruling.
canada was interpreted under british imperial law as a series of conquered french colonies first and foremost, and an area of unceded aboriginal land, second. so, the french colonies came under british dominion and kept their civil law traditions, which were at the time under the napoleonic code. this is why an algonquin claim about unceded territory in ontario would not be recognized under british law - it was conquered from the french. the aboriginal areas, on the other hand, were given a kind of suspended sovereignty. they could keep their land and their traditions, but only on the condition that they refused to cede their land to anybody else. specifically, the proclamation of 1763 gave the british crown the monopoly over land purchases, which american land buyers and sellers did not like one bit. it's still the law in canada, though - the crown, which now means the government in ottawa, still has a monopoly over indigenous land purchases in canada.
and, everywhere was eventually bought except for most of british columbia, which just never was. there have been some "land transfers" since then, but they've been unconstitutional under our own laws! really, the right way to look at the canadian occupation of british columbia is to compare it to the israeli occupation of palestine - people keep moving in, but there's no actual legal basis for it. the correct legal status for these areas remains defined by the 1763 proclamation, which defines them as a part of an "indian reserve", gives them ownership of their own land and denies their right to sell their land to any entity except the crown.
indigenous title in canada is not what these people actually want, as it's just another type of fief; indigenous title is not sovereign land rights, in canada. the nisga'a agreement presents a model that goes beyond "indigenous title" in the sense that it's actually a kind of peace treaty, which carves out a semi-autonomous area for the nisga'a people. i don't know what the various peoples in bc want, but if they want land rights, it's in the nisga'a agreement, and not in these judicial constructions of "indigenous title", which would keep them at the whim of the colonial government. there is not actually a way for the court system to award sovereignty...that has to be done via treaty.
so, this idea that "the white man's law" is oppressing them and allowing for this and they need to rebel against it is actually wrong, in this limited context. again: you can't apply these arguments in new brunswick, or ontario. but, in bc, british imperial law actually should forbid the application of the indian act on unceded territory, at least until a treaty is signed. the judge here is actually wrong, and the supreme court should reverse her ruling.