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Selected Topics in Law

Aboriginal Law

Indigenous Peoples in Canada consist of three groups, First Nations, Métis, and Inuit. This distinction has been enshrined in the Constitution Act, 1982 under Section 35 (2). It should be noted that Indigenous persons have their own legal traditions outside of the Canadian state law that are of equal importance and are included in our Traditional Indigenous Law subject guide. This guide compiles primary sources, published primary sources, secondary sources, and tertiary sources.

Sources

R. v Drybones, [1970] S.C.R. 282 

 

Summary: a decision holding that a section of the Indian Act is inoperative because it violates the Canadian Bill of Rights. Specifically, if s. 94 (b) of the Indian Act- relating to Indigenous persons  intoxication off of reserves- is rendered inoperative due to the Canadian Bill of rights. 

 

Location: Yellowknife Northwest Territories 

 

Indigenous Communities Involved: 

Not Specified 

 

Attorney General of Canada v Lavell; Isaac v. Bédard, [1973] S.C.R. 1349 

 

Summary: a decision holding that Section 12(1)(b) of the Indian Act did not violate the respondents' right to "equality before the law" under Section 1 (b) of the Canadian Bill of Rights. Loss of both women's Indian Status due to marrying a non-Indian. 

 

Location: Manitoulin Island Ontario 

 

Indigenous Communities involved: Anishinaabe (Ojibwa), and The National Indian Brotherhood (now the Assembly of First Nations)

 

Calder v British Columbia (Attorney General) [1973] S.C.R. 313 

 

Summary:  the first time that Canadian law acknowledged that Aboriginal title to land existed prior to the colonization of the continent and was not merely derived from statutory law. 

 

Location: British Columbia 

Specifically in and around the Nass River Valley in northwestern B.C.

 

Indigenous Communities Involved: the Nishga tribal council,  the Gitlakdamix Indian Band, the Canyon City Indian Band, the Greenville Indian Band, and the Kincolith Indian Band

 

Guerin v. The Queen [1984] 2 S.C.R. 335 

 

Summary: The Musqueam Indian Band was persuaded to surrender reserve land to Canada, who leased the property to a golf club on significantly less advantageous terms than what Canada originally told the band.  The band sued for breach of fiduciary duty. The Court found a breach and awarded the band $10 Million. The Canadian government has a fiduciary duty towards the First Nations of Canada and establishes aboriginal title to be a sui generis right. In so doing, the Court rejected the argument that Canada simply owed the band a non-enforceable “political” duty as opposed to a legal duty.

 

Location: Vancouver British Columbia 

 

Indigenous Communities Involved: Musqueam Indian Band, and The National Indian Brotherhood (now the Assembly of First Nations

 

 

R. v. Sparrow, [1990] 1 S.C.R. 1075 

 

Summary: Aboriginal rights that were in existence in 1982 are protected under the Constitution of Canada and cannot be infringed without justification on account of the government's fiduciary duty to the Aboriginal peoples of Canada.  

 

Location: British Columbia 

 

Indigenous Communities Involved:Musqueam Indian Band 

 

R. v Badger, [1996] 1 S.C.R. 771 -

 

Summary: Three Indigenous men were charged for hunting moose out of season in Alberta, claiming they had a treaty right to hunt for food.  The Court examined the effect of the Natural Resources Transfer Agreement (NRTA) on treaty rights.  The agreement allowed the treaty right to hunt for food to be exercised on all “unoccupied Crown lands” and on lands to which the Indians had a “right of access.”  Lands that are put to a visible use incompatible with hunting are occupied and will not create a right of access to hunt on such lands. 

 

 This case set out a number of principles regarding the interpretation of treaties between the Crown and Aboriginal people of Canada. 

 

Location: Alberta, Treaty 8 territory 

 

Indigenous Communities Involved: Cree status Indians under Treaty 8 (not further specified)

 

Mitchell v Minister of National Revenue, [2001] 1 S.C.R. 911

 

Summary: decision on aboriginal rights under s. 35(1) of the Constitution Act, 1982 

Whether Mohawks of Akwesasne have the right to bring goods across St. Lawrence River (from U.S to Canada) for purposes of trade without paying custom duties. 

 

Location: U.S, Canada, St. Lawrence River 

 

Indigenous Communities Involved: The Mohawk Council of Kahnawake, The Assembly of First Nations, and The union of new brunswick indians 

 

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69

Summary: Conflict over lack of consultation prior to the federal approval of a road which would run through the Mikisew Reserve, land guaranteed by Treaty 8 (1899). Despite qualifications in the treaty about possible development of the land by the government, objections to the road went beyond the closure of hunting/trapping areas to the possible negative effects on traditional lifestyle practices in the area.

Location: The area surrendered to the Crown under Treaty 8 covers 840,000 square kilometres of what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan and the southern portion of the Northwest Territories.

Indigenous communities involved: Big Island Lake Cree Nation, Lesser Slave Lake Indian Regional Council, Treaty 8 First Nations of Alberta, Treaty 8 Tribal Association, Blueberry River First Nations and Assembly of First Nations

Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222

 

Summary: The Ermineskin Nation and the Samson Nation, bands entitled to financial, among other, benefits under Treaty 6 of 1876, filed claims that the Crown had failed in its fiduciary obligations to them. This was based on what they saw as refusal or neglect of the Crown to make prudent investments of the oil and gas royalties it collected and held for the bands under the terms of the treaty.

Location: Samson Reserve and Pigeon Lake Reserves, Alberta

Indigenous communities involved: Ermineskin Nation and Samson Nation 

 

Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, [2014] 2 S.C.R. 447

 

Summary: This case concerned the provisions of Treaty 3, signed in 1873 between the Dominion of Canada and the Ojibway Chiefs. In 2005 the Ojibway signatories' descendents challenged the right of the Ontario government to issue licenses for use of some of the lands protected by the treaty.

Location:Keewatin area, Northwestern Ontario

Indigenous communities involved: Grassy Narrows First Nation (Ojibway)