Gladstone v. Canada (Attorney General)

Supreme Court of Canada – [2005] 1 S.C.R. 21

Summary

The Court refuses to grant interests to Aboriginals on an amount held for them by the Crown. It states that fiduciary duty does not apply to every situation: “Although the Crown in many instances does owe a fiduciary duty to aboriginal people, it is the nature of the relationship, not the specific category of actor involved, that gives rise to a fiduciary duty. Not every situation involving aboriginal people and the Crown gives rise to a fiduciary relationship.” (para. 53 of the decision).

Issue

Should the Crown have paid the interest to Gladstone for the amount held during litigation in its fiduciary role?

R. v. Decorte

Supreme Court of Canada – [2005] 1 S.C.R. 9

Summary

The Supreme Court of Canada recognizes the role and validity of First Nations’ polices.

Issue

Was Decorte illegally detained when he was stopped by the First Nations constables?

R. v. Marshall; R. v. Bernard

Supreme Court of Canada – [2005] 2 S.C.R. 220

Summary

After their fishing rights were confirmed in the Marshall decisions, the Mi’kmaq tried to have their right to harvest lumber for commercial purposes recognized as well. The Supreme Court, however opened to the evolution of trading rights, did not accept their argument.

Issue

1. Was lumber harvesting part of the Mi’kmaq’s traditional activities at the time of the signing of the treaty?
2. If so, is modern forest harvesting part of the logical evolution of this practice?
3. Also, can the Mi’kmaq claim an Aboriginal title over the Crown lands on which they harvested timber?

E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia

Supreme Court of Canada – [2005] 3 S.C.R. 45

Summary

A victim of Indian residential schools tries to have the responsible order recognized responsible for the actions of its religious congregation for the actions of one of its employees that was not an educator. Although such a claim was successful in Blackwater, it was not in this case.

Issue

Can the Catholic Order operating a residential school be liable for sexual assault committed on site by one of its employee?

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)

Supreme Court of Canada – [2005] 3 S.C.R. 388

Summary

Mikisew is a leading case in aboriginal law. The Court applied the consultation criteria established in Haïda and Taku River for the first time, here in a treaty case. The rules surrounding consultation when a treaty is involved were specified.

The honour of the Crown is omnipresent, and the duty to consult is engaged as soon as the Crown knows of a project that could harm Aboriginal peoples’ interests.

Issue

Did the Crown have a duty to consult the Mikisew Cree First Nation?

Taku River Tlingit First Nation v. British Columbia

Supreme Court of Canada – [2004] 3 S.C.R. 550

Summary

This decision was delivered on the same day as Haïda. It is one of the most referred to cases in Aboriginal peoples’ consultation and accommodation.

The Supreme Court establishes that the Crown does not have to create an independent consultation process for Aboriginals. Consultation can be included in broader environmental evaluation processes.

Issue

Did the province correctly consult and accommodate the Taku River Tlingit First Nation?

Haida Nation v. British Columbia (Minister of Forests)

Supreme Court of Canada – [2004] 3 S.C.R. 511

Summary

Haida is one of the most frequently cited cases regarding aboriginal rights.

Based on the principle of the honour of the Crown, which was elaborated by the Court, this decision affirms that the Crown must consult Aboriginals as soon as it has it has “real or constructive” knowledge “of the potential existence” of an Aboriginal right or title that may be adversely affected by the contemplated conduct.

Issue

What are the Crown’s obligations to consult and to accommodate Aboriginals when they are in the process of establishing an Aboriginal title?

British Columbia (Minister of Forests) v. Okanagan Indian Band

Supreme Court of Canada – [2003] 3 S.C.R. 371

Summary

In this case, the Court considers the financing of Aboriginal law cases, often very expensive. It recognizes that there are situations where it is in the public interest that the government finances the trial.

Issue

What conditions must be fulfilled for the courts to exercise their inherent jurisdiction to award interim costs when dealing in Aboriginal law?

Paul v. British Columbia (Forest Appeals Commission)

Supreme Court of Canada – [2003] 2 S.C.R. 585

Summary

This case concerns the jurisdiction of an administrative tribunal over constitutional issues. The Supreme Court considers that the province could authorize the Commission to hear a defense based on aboriginal rights – to do so did not touch “the core of Indianness”.

Issue

Did the Commission have jurisdiction to consider Paul’s defense that he had an Aboriginal right to cut lumber in order to make improvements on his house?

R. v. Blais

Supreme Court of Canada – [2003] 2 S.C.R. 236

Summary

Delivered the same day as Powley. The Supreme Court refuses to conclude that the Manitoba Natural Resources Transfer Agreement applies to Métis, but notes that they could use section 35 of the Constitution Act, 1982 to have their aboriginal rights recognized.

Issue

Can Métis be considered as “Indians” under the Manitoba Natural Resources Transfer Agreement?