R. v. Marshall

Supreme Court of Canada – [1999] 3 S.C.R. 456 - “Marshall I”

Nova Scotia Honour of the CrownTreaties

Summary

The Marshall decision is a leading case for treaties, in particular for historical and peace and friendship treaties. The Court summarizes the main principles in interpretation adopted so far (see par. 78) and confirms that the Mi’kmaq have a right to hunt, fish, gather and trade for subsistence.

Issue

Did Marshall have a treaty right to catch and sell fish under the treaties signed by the Mi’kmaq in 1760-61?


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

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

Alberta ConsultationHonour of the CrownTreaties

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?


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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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Manitoba Métis Federation Inc. v. Canada (Attorney General)

Supreme Court of Canada – 2013 SCC 14

Manitoba Fiduciary dutyHonour of the CrownMétis

Summary

This decision determined whether the Crown had breached its obligations towards the Métis in its implementation of the Manitoba Act. The Court recognizes that there can be a breach of the honour of the Crown because of accumulated faults, and rejects a defense based on the passing of time.

 A constitutional and solemn obligation of the Crown with the objective to reconcile its sovereignty with aboriginal interests gives rises to the honour of the Crown. However, since the Manitoba Act does not grant discretionary power to the Crown on aboriginal interests, there is no fiduciary duty.

Issue

  1. Is Canada in breach of its fiduciary duty to the Métis?
  2. Did Canada fail to comply with the honour of the Crown in the implementation of ss. 31 and 32 of the Manitoba Act?
  3. Is the claim for a declaration barred by limitations or by the doctrine of laches?


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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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Beckman v. Little Salmon/Carmacks First Nation

Supreme Court of Canada – [2010] 3 S.C.R. 103

Yukon ConsultationHonour of the CrownTreaties

Summary

This decision defines the Crown’s duty of consultation and accommodation in the context of modern treaties. Although modern treaties may be more detailed and precise than historic treaties, the honour of the Crown can dictate that there be consultation and accommodation in the instances where rights are affected and the treaty has no procedural provision.

In this manner, “recent” treaties can “evolve” according to the applicable law in Canada. “Reconciliation in the Yukon, as elsewhere, is not an accomplished fact. It is a work in progress.” (par. 52 of the decision)

Issue

Does the Government of Yukon have a duty to consult the First Nation of Little Salmon/Carmacks pursuant to a treaty before approving the land grant of 65 hectares to a resident, Larry Paulsen? If yes, what is the scope of this obligation?


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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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Taku River Tlingit First Nation v. British Columbia

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

British Columbia ConsultationEnvironmental assessmentHonour of the Crown

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?


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R. v. Sparrow

Supreme Court of Canada – [1990] 1 S.C.R. 1075

British Columbia Aboriginal rightsHonour of the Crown

Summary

The Sparrow case is a major aboriginal law case. It marks the beginning of a new era in Supreme Court jurisprudence. The Court was examining for the first time the scope of section 35 of the Constitution Act, 1982. It starts to explain the strength of this disposition as a promise towards aboriginal peoples in Canada.

This case is mostly known for its “test”, that determines whether the Crown is infringing on aboriginal peoples’ constitutional rights, and whether this breach is justified and upholds the honour of the Crown.

Issue

Is Canada’s jurisdiction to regulate fisheries limited by section 35 of the Constitution Act, 1982, which protects existing Aboriginal rights?

Was the restriction on the length of the net inconsistent with section 35?


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