Paulette et al. v. The Queen

Supreme Court of Canada – [1977] 2 S.C.R. 628

Northwest Territories Aboriginal title

Summary

The Supreme Court refuses to acknowledge that Indians can present their aboriginal right interest as a caveat against unpatented Crown lands. The Court does not close the door for all future land claims from the chiefs based on an Aboriginal right in the Northwest Territories, but states that the registering of a caveat is not the appropriate procedure to do so.

Issue

Can the Indians present a caveat on unpatented Crowns lands subject to the Land Titles Act in the Northwest Territories, claiming they have an interest in the land, by way of aboriginal right?


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St. Ann’s Island Shooting and Fishing Club Ltd. v. The King

Supreme Court of Canada – [1950] S.C.R. 211

Ontario Aboriginal titleFiduciary dutyLands reserved for Indians

Summary

Even though it does not mention it, in a way, the St. Ann’s Island Shooting & Fishing Club was the first Supreme Court’s decision to recognize and examine fiduciary relationship between the Crown and Aboriginal (Rotman, 2003: 370). The Crown must act with diligence and care when dealing for the Indians – in this case, an Order in Council authorizing the lease cannot by constructed as giving the Superintendent-General the power to negotiate with the Club for another lease, with new conditions, more than fifty years later. If the need arise for a new lease, a new Order-in-Council on the Governor in Council’s part is needed.

Issue

Did Superintendent-General of Indian Affairs have the power to conclude a new lease with the St. Ann’s Shooting and Fishing Club, and was the surrender of the Chippewas and Pottawatomie Indians of Walpole Island total and definitive?


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Ontario Mining Company Ltd. and Attorney-General for Canada v. Seybold et al. and Attorney-General for Ontario

Judicial Committee of the Privy Council – [1903] A.C. 73

Ontario Aboriginal titleLands reserved for IndiansProperty

Summary

This decision confirms the earlier St. Catherine’s Milling ruling. Once the title is surrendered the province becomes the sole owner of the land. The Dominion had no right to grant licenses.

Issue

After the surrender of Indian lands to the Crown, can the province, in which they are situated, dispose of them without the consent of the federal government?


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St. Catherine’s Milling Co. v. The Queen

Judicial Committee of the Privy Council – [1888] 14 A.C. 46

Ontario Aboriginal titleJurisdiction over Indians

Summary

This decision from Canada’s highest court had monumental impacts on the relation between Canada and Aboriginal peoples. It governed Canada’s policy over Indian title for almost a century, until Calder, in 1973.

The Council recognized that the Royal Proclamation of 1763 gave the Indians only a right of occupancy, which encroached on the Province’s title. Once this right is ceded to the Dominion, full proprietary interest reverts to the province.

Issue

When a parcel of land ceased to be part of an Indian reserve, which jurisdiction owns the title: the provincial or the federal government?


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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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R. v. Marshall; R. v. Bernard

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

New BrunswickNova Scotia Aboriginal titleTradeTreaties

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?


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R. v. Adams

Supreme Court of Canada – [1996] 3 S.C.R. 101

Quebec Aboriginal rightsAboriginal titleSeigniorial law

Summary

This case was delivered on the same day as Côté. The Court found that aboriginal rights could exist independently from the existence of an exclusive aboriginal title.

Issue

Can we consider land claims as a type of Aboriginal rights claims or are Aboriginal rights rooted in claims to the land?


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Delgamuukw v. British Columbia

Supreme Court of Canada – [1997] 3 S.C.R. 1010 – “Delgamuukw”

British Columbia Aboriginal title

Summary

Without a doubt one of the most known and quoted aboriginal law cases in Canada, Delgamuukw clarifies the nature and scope of the constitutional protection granted by section 35(1) of the Constitution Act, 1982 to aboriginal title.

The justices confirmed that aboriginal title is a right to the land itself, that it allows activities other than customary, and that Aboriginals must be compensated in the event of a breach to this right. They also allowed for oral evidence.

Issue

How can an Aboriginal title be defined under section 35 (1) of the Constitution Act, 1982, and how can it be proven?


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Johnson & Graham’s Lessees v. M’Intosh

US Supreme Court – 21 U.S. (8 Wheat.) 543 (1823)

USA Aboriginal titleDoctrine of discoveryLands reserved for IndiansProperty

Summary

The decisions rendered by the “Marshall court”, including this one, marked the starting point for a judicial discussion about Aboriginals.

According to the doctrine of discovery, which binds the Aboriginals, the discoverer holds a title to the lands and an exclusive right to acquire Indian lands.

Issue

Does an Indian nation have the capacity to cede parcels of the land they occupied to private individuals?


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Guerin v. The Queen

Supreme Court of Canada – [1984] 2 S.C.R. 335

British Columbia Aboriginal titleFiduciary dutyLands reserved for Indians

Summary

The Guerin decision is one of the most significant in the history of Aboriginal law. It recognized that the Crown has a fiduciary duty towards Aboriginals and their lands, and reaffirmed the existence of Aboriginal title in Canada subsequent to Calder.

Issue

Did the Crown breach its fiduciary duty to the Musqueam Band of Indians by agreeing to a lease with conditions less favourable than those accepted by the band members, and if so, this breach be sanctioned in a court of law?


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