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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R. v. George

Supreme Court of Canada – [1966] S.C.R. 267

Ontario Aboriginal rightsIndian ActTreaties

Summary

The Supreme Court refused to interpret the Indian Act as recognizing the paramountcy of treaties over federal legislation – only the provincial legislation must respect the treaties between the Crown and the Indians. This case is no longer applicable, with the constitutional recognition of treaty rights in 1982.

Issue

Does the Treaty of 1827 subtracted Chippewa Indians from the application of the Migratory Birds Convention Act?


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Sikyea v. The Queen

Supreme Court of Canada – [1964] S.C.R. 642

Northwest Territories Aboriginal rights

Summary

The Court issues a very brief decision in which, with very little discussion, it declares that the treaty is subject to the federal Migratory Birds Convention Act.

Issue

Can Treaty Indians in the Northwest Territories hunt and kill duck for their survival at any time of the year, even if the Migratory Birds Convention Act and its regulations forbid duck hunting during some prescribed periods?


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Prince and Myron v. The Queen

Supreme Court of Canada – [1964] S.C.R. 81

Manitoba Aboriginal rightsJurisdiction over Indians

Summary

As with many cases before 1982, this one is out of date. Hunting at night, with lights, was discussed in 2006 in Morris. However, the Court already recognizes the fundamental importance of hunting for subsistence. It also acknowledges that provinces can limit such rights for safety and environmental purposes

Issue

Is the use of the term “hunt” in the Game and Fisheries Act of Manitoba ambiguous regarding Indians? And are they subject to the prohibitions found in the same 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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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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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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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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R. v. Sappier; R. v. Gray

Supreme Court of Canada – [2006] 2 S.C.R. 686

New Brunswick Aboriginal rightsTrade

Summary

This case was delivered a few days before Morris. It clarifies the criteria of the “distinctive culture” established in Van der Peet in order to recognize the existence of an aboriginal right. The traditional activity must not be unique or exclusive, but rather must be an integral part of the distinctive culture.

To understand what this culture represents, one must study the way of life of an aboriginal community before contact with the Europeans, “including their means of survival, their socialization methods, their legal systems, and, potentially, their trading habits.” (par. 45 of the decision).

Issue

Do the respondents have an Aboriginal right or a treaty right to harvest wood from Crown lands for their personal use?


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