Supreme Court of Canada –  2 S.C.R. 146
The Supreme Court confirmed that a provincial law is not unconstitutional simply because one or some of its provisions specifically refer to Aboriginals. We must assess the provision, and the general scheme of the Act, to determine whether they apply or not.
First Nations are not enclaves of federal power in a sea of provincial jurisdiction… The mere mention of the word “aboriginal” in a statutory provision does not render it ultra vires the province. (para. 66 of the decision).
Are the paragraphs of the Heritage Conservation Act that specifically target Aboriginals unconstitutional, since the legislative jurisdiction over Indians is federal?
The provisions specifically aimed at Aboriginal people are legal, since the province can specifically mention Aboriginals in its laws. They can have justified purpose and effect, without creating a special treatment for Aboriginals and without touching the essential of their Indianness, and thus without affecting the federal jurisdiction (unanimous).
Between: Chief Councillor Mathew Hill, also known as Tha-lathatk, on his own behalf and on behalf of all other members of the Kitkatla Band, and the Kitkatla Band
And: The Minister of Small Business, Tourism and Culture, the Attorney General of British Columbia and International Forest Products Limited
Interveners: Canada, Ontario, Quebec, New Brunswick, Manitoba, Alberta, the Council of Forest Industries and the Truck Loggers Association
The International Forest Products Limited (Interfor) company was the holder of a forest licence to exploit forest resources in the central coastal area of British Columbia, an area claimed by the Kitkatla Band in its treaty negotiations with the federal and provincial governments.
When the Company was informed of the Band’s claim, it set out to verify the substance of these contentions. Accordingly, Interfor reported its development plans to the Band. Of particular interest was the existence of culturally modified trees within the vicinity to be exploited by Interfor.
The Heritage Conservation Act of British Columbia provided that permits were required in order to “damage, alter, cover or move an aboriginal rock painting or aboriginal rock carving that has historical or archaeological value”, and to “damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of human habitation or use before 1846”.
Consequently, the Company submitted an application for a permit for “site alteration” that would authorize it to cut down the trees under the Heritage Conservation Act. Pursuant to its provisions, the minister asked the Band to submit its views, but the latter failed to reply within the prescribed term. Hence, the permit was issued. The Band challenged the legality of the permit issuance by initiating judicial review proceedings in the B.C. Supreme Court.
The Kitkatla Band: The provincial legislation directly affected its core Indianness, thus interfering with the federal jurisdiction as provided in sect. 91 (24) of the Constitution Act, 1867. The Heritage Conservation Act of British Columbia is, therefore, ultra vires (outside) of the province’s jurisdiction.
British Columbia: The “pith and substance” of the Heritage Conservation Act of British Columbia (the protection of cultural heritage) does not affect the federal jurisdiction over “Indians, and Lands reserved for Indians.”
British Columbia Supreme Court (1998): The Heritage Conservation Act is constitutionally valid as it does not single out Indians and falls under the province’s legislative powers since it is a matter of “property and civil rights.” The minister has breached his fiduciary duty towards the Band by not taking into consideration the special aspects of the decision.
British Columbia Supreme Court (1999): In the second decision, the Band sought an order to instruct the minister to reconsider his decision in light of the considerations of sect. 8 of the Heritage Conservation Act regarding Aboriginal rights.
British Columbia Court of Appeal (2000): The “pith and substance” of the Heritage Act was legislation regarding “Indians, and Lands reserved for Indians.” The Heritage Conservation Act of British Columbia affects the Band’s core Indianness. The Court rejected the appeal on the second decision.
McLachlin, Gonthier, Iacobucci, Major, Binnie, Arbour, LeBel
In order to assess whether the Heritage Conservation Act of British Columbia fell under the province’s jurisdiction or not, we must analyze its “pith and substance”. This analysis centers on the object of the law, and its legal and practical effects.
First, we must examine the litigious provisions. The test to apply is the following (para. 58):
In this case, the object of the disposition is to protect aboriginal heritage. The law protects the heritage of all British Columbians, and Aboriginal culture is protected as an element of this shared heritage. Its effects are positive, and no restriction can be absolute. The law established a balance between preservation and exploitation of natural resources. It also provides that the consent of title owners must be obtained, and does not prevent Aboriginal rights from being respected.
An examination of the legislation reveals that it does not single out Aboriginal people or weaken their status as Indians. The Court insists on numerous occasions on the weakness of the evidence that would show how the trees at issue were essential to the Nation’s Indianness, and therefore subject to federal jurisdiction. It does not exclude the possibility that another Nation would be successful in proving so.
Therefore, the relevant sections of the Heritage Conservation Act of British Columbia were judged intra vires (within the jurisdiction) of the province. There is no infringement on the federal government’s jurisdiction.
This case clarifies the jurisdiction of provinces towards Aboriginal peoples. Section 88 of the Indian Act states that provincial laws of general application apply to Indians.
The Kitkatla decision confirms that a law of general application that would touch the essential of Indianness could however apply to Aboriginal peoples, even if it specifically mentions them, so long as its object and effects are positive.
However, if the act had infringed aboriginal rights, they would have had priority.
Dick v. La Reine,  2 S.C.R. 309