R. v. Derriksan

Supreme Court of Canada – [1976] 6 W.W.R. 480

British Columbia Aboriginal rights

Summary

In a one paragraph, delivered on the bench decision, the Supreme Court refused to recognize that a provincial law did not apply where an aboriginal right was claimed. This case is no longer relevant, with section 35 of the Constitution Act, 1982, and the Sparrow case.

Issue

Does the Royal Proclamation, 1763 apply to Okanagan Indians, if so, does it create an Aboriginal right to fish for food in the territory near Peachland, considered their traditional fishing grounds?


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Natural Parents v. Superintendent of Child Welfare and Al.

Supreme Court of Canada – [1976] 2 S.C.R. 751

British Columbia Family lawIndian ActJurisdiction over IndiansStatus

Summary

The Supreme Court found that there a provincial adoption act can apply to aboriginal people, in this case because it created no inconsistency. The child can keep its status even though he is adopted by two non-Natives.

Issue

Was section 10 of the Adoption Act, a provincial statute, incorporated into the Indian Act under section 88 of the same Act?


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R. v. White and Bob

Supreme Court of Canada – [1965], 52 D.L.R. (2d) 481

British Columbia Treaties

Summary

The Supreme Court develops a liberal approach to treaty interpretation, and recognizes the existence of a treaty.

Issue

Was the 1854’s agreement a treaty in the sense of the Indian Act?


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Calder et al. v. Attorney-General of British Columbia

Supreme Court of Canada – [1973] S.C.R. 313

British Columbia Aboriginal titleDoctrine of discovery

Summary

The Calder case is certainly one of the Supreme Court decisions that had the most impact on Aboriginal rights as well as on public policy. Il recognized the possible existence of aboriginal titles in Canada.

In addition, Calder encouraged the federal government to undertake negotiations with Aboriginal communities regardless of the vagueness and uncertainties left by the Supreme Court. The government decided to obtain the cession of the titles in order “to restore the integrity of the state as ‘Self’” (Slowey, 2000).

Issue

Does the Nishga Indian Tribe hold an Aboriginal title to their traditional territory or has this title been lawfully extinguished over the course of time?


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Dick v. The Queen

Supreme Court of Canada – [1985] 2 S.C.R. 309

British Columbia Application of laws to AboriginalsIndiannessJurisdiction over Indians

Summary

Delivered the same day as Jack and Charlie.

The Court describes the essence of “Indianness”, which is of federal jurisdiction. Indianness is what make an Indian “Indian”.

The Court specifies the criteria that a provincial legislation must meet in order to apply to Indians, even though it touches Indianness : it must be of general application, its objective must not be to limit the group’s right, et must not infringe on a treaty or a federal legislation. In this case, the Court considers that the provincial law applies even though it touches Dick’s aboriginal rights and Indianness because it meets the criteria.

The facts in this case happened before the enactment of section 35 of the Constitution Act of 1982. Today, this would prevent a provincial law from infringing on aboriginal rights without justification.

Issue

Is year-long hunting for subsistence central to the culture and lifestyle of the Shuswap so that it cannot be restricted by the Wildlife Act without attacking their core of “Indianness”?

If so, is the Wildlife Act constitutionally inapplicable because it is a provincial legislation affecting the core of “Indianness”, or was it incorporated into federal legislation with the application of sect. 88 of the Indian Act?


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R. v. Van der Peet

Supreme Court of Canada – [1996] 2 S.C.R. 507

British Columbia Aboriginal rightsTrade

Summary

The Van der Peet case was handed on the same day as Gladstone and Smokehouse. It completes Sparrow, in which the court started to explain the content of aboriginal rights as protected by section 35 of the Constitution Act, 1982.

In Van der Peet, the Supreme Court explains what must be considered to define aboriginal rights recognized and affirmed by section 35.

Issue

Do the Sto:lo have an aboriginal right to sell fish caught by them protected by section 35 (1) of the Constitution Act, 1982?


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R. v. Gladstone

Supreme Court of Canada – [1996] 2 S.C.R. 723

British Columbia Aboriginal rightsTrade

Summary

The Gladstone decision was handed on the same day as Van der Peet and Smokehouse. They form what is referred to as the Van der Peet trilogy. The test construed in Sparrow for assessing the infringement upon aboriginal rights was completed, including a clarification of the priority doctrine.

Issue

Do the fisheries regulations infringe on the Gladstones aboriginal right to trade herring spawn on kelp? If so, are they justified for conservation reasons?


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Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture)

Supreme Court of Canada – [2002] 2 S.C.R. 146

British Columbia Application of laws to AboriginalsFiduciary dutyJurisdiction over Indians

Summary

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.

Issue

Are the paragraphs of the Heritage Conservation Act that specifically target Aboriginals unconstitutional, since the legislative jurisdiction over Indians is federal?


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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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Haida Nation v. British Columbia (Minister of Forests)

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

British Columbia ConsultationHonour of the Crown

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?


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