Behn v. Moulton Contracting Ltd.

Supreme Court of Canada – 2013 SCC 26

British Columbia Aboriginal rightsAbuse of processConsultation

Summary

The Supreme Court tackles a long standing issue in aboriginal law: can Aboriginal individuals assert ancestral rights?

The Court decided that unless an individual was appointed to represent its First Nation as an ensemble in the defense of its rights, he or she can not assert a breach to the Crown’s duty to consult.

Individuals can nonetheless, in some instances, ask the government to discuss with them directly or assert their rights before the court when they have interest in an aboriginal or treaty right with an individual aspect

Issue

  1. Can the Behns, as individual members of an Aboriginal community, assert a breach of the duty to consult?
  2. Can the Behns, as individual members of an Aboriginal community, assert treaty rights?
  3. Did the Behns commit an abuse of process in contesting the legality of the licenses only as a defense to the lawsuit initiated by Moulton and not after their delivery?


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Manitoba Métis Federation Inc. v. Canada (Attorney General)

Supreme Court of Canada – 2013 SCC 14

Manitoba Fiduciary dutyHonour of the CrownMétis

Summary

This decision determined whether the Crown had breached its obligations towards the Métis in its implementation of the Manitoba Act. The Court recognizes that there can be a breach of the honour of the Crown because of accumulated faults, and rejects a defense based on the passing of time.

 A constitutional and solemn obligation of the Crown with the objective to reconcile its sovereignty with aboriginal interests gives rises to the honour of the Crown. However, since the Manitoba Act does not grant discretionary power to the Crown on aboriginal interests, there is no fiduciary duty.

Issue

  1. Is Canada in breach of its fiduciary duty to the Métis?
  2. Did Canada fail to comply with the honour of the Crown in the implementation of ss. 31 and 32 of the Manitoba Act?
  3. Is the claim for a declaration barred by limitations or by the doctrine of laches?


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R. v. Ipeelee

Supreme Court of Canada – [2012] 1 S.C.R. 433

Nunavut Criminal law

Summary

This decision determines the principles to be taken into account with regards to sentencing Aboriginal offenders for breach of long-term supervision orders (LTSOs).

In order for a sentencing decision made with regards to an Aboriginal offender to be upheld by a higher court, it must take into account his or her special circumstances as mandated by s. 718.1(e) of the Criminal Code.

Issue

  1. What are the principles governing the sentencing of Aboriginal offenders?
  2. How do those principles apply to the breach of an LTSO?
  3. Are the sentences imposed on either Mr. Ipeelee or Mr. Ladue unfit or made in error?


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Bastien Estate v. Canada

Supreme Court of Canada – [2011] 2 S.C.R. 710

Quebec Indian ActTaxation

Summary

This case was delivered on the same day as Dubé. It determines the location of immaterial personal property relative to a reserve. If the location is determined to be on the reserve, the interest income generated from the personal property is also located on the reserve and is exempt from taxation.

Issue

Is the interest income earned by Bastien’s term deposits at the the Caisse populaire Desjardins du Village Huron (Wendake) considered to be “personal property of an Indian situated on a reserve” to the effect that it is exempt from taxation?


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Dubé v. Canada

Supreme Court of Canada – [2011] 2 S.C.R. 764

Quebec Indian ActTaxation

Summary

This case was delivered on the same day as Bastien. It determines the location of immaterial personal property relative to a reserve. The tax exemption applies to all personal property of an Indian situated on any reserve, and not one reserve in particular.

Issue

Is interest earned on term deposits considered to be “personal property of an Indian situated on a reserve” to the effect that it is exempt from taxation?


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Alberta (Aboriginal Affairs and Northern Development) v. Cunningham

Supreme Court of Canada – [2011] 2 S.C.R. 670

Alberta Canadian Charter of Rights and FreedomsGovernance (self-determination, self-government)IdentityMétis

Summary

The Court determined that Métis could be refused rights guaranteed by the Metis Settlement Act upon registering as status Indians.

 This treatment could be considered a violation to the right to equality guaranteed by the Canadian Charter of Rights and Freedoms, as it creates a distinction between Métis with Indian status and those without, but it comes from an ameliorative program with the goal of enriching the culture, identity and autonomy of the Métis.

Issue

Do the Métis Settlements Act violate the Charter? If yes, is this violation a reasonable limit imposed by a rule of law that is justified in a free and democratic society?


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Lax Kw’alaams Indian Band v. Canada (Attorney General)

Supreme Court of Canada – [2011] 3 S.C.R. 535

British Columbia Aboriginal rightsHonour of the CrownTraditional territory

Summary

The Supreme Court refused to recognize an extended aboriginal right to trade fish on ancestral territory. The possible evolution of Aboriginal rights is acknowledged, but within qualitative and quantitative limits that do not permit the creation of a new right.

Issue

Do the practises, costumes, and traditions of the Lax Kw’alaams allow for the recognition of the modern right to commercial harvesting and sale of all varieties of fish?


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Osoyoos Indian Band v. Oliver (Town)

Supreme Court of Canada – [2001] 3 S.C.R. 746

British Columbia Indian ActLands reserved for IndiansTaxation

Summary

This decision confirms that Band Councils have the power to adopt property tax by-laws on expropriated reserve land, unless the Crown has stated in a clear and plain way its intention of extinguishing the aboriginal title.

Issue

Can an Indian band assess and impose a property tax on expropriated land located within the limits of its reserve?


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Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council

Supreme Court of Canada – [2010] 2 S.C.R. 650

British Columbia Aboriginal rightsConsultationHonour of the CrownTraditional territory

Summary

This decision confirmed that First Nations can obtain compensation for lack of consultation. Any effect on an Aboriginal right must be harmful and novel in order to trigger a duty to consult. If the resource was modified a long time ago and the government action poses no new threat, the obligation is to compensate and not to consult.

Issue

Is the British Columbia Utilities Commission (the “Commission”) required to consider the issue of consultation with the CSTC First Nations in determining whether the sale of excess power from a dam to a Crown corporation is in the public interest? Does the duty to consult apply in situations where a land claim is pending?


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Beckman v. Little Salmon/Carmacks First Nation

Supreme Court of Canada – [2010] 3 S.C.R. 103

Yukon ConsultationHonour of the CrownTreaties

Summary

This decision defines the Crown’s duty of consultation and accommodation in the context of modern treaties. Although modern treaties may be more detailed and precise than historic treaties, the honour of the Crown can dictate that there be consultation and accommodation in the instances where rights are affected and the treaty has no procedural provision.

In this manner, “recent” treaties can “evolve” according to the applicable law in Canada. “Reconciliation in the Yukon, as elsewhere, is not an accomplished fact. It is a work in progress.” (par. 52 of the decision)

Issue

Does the Government of Yukon have a duty to consult the First Nation of Little Salmon/Carmacks pursuant to a treaty before approving the land grant of 65 hectares to a resident, Larry Paulsen? If yes, what is the scope of this obligation?


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