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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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As with many cases before 1982, this one is out of date.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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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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Smith v. The Queen

Supreme Court of Canada – [1983] 1 S.C.R. 554

New Brunswick Jurisdiction over IndiansLands reserved for IndiansProperty

Summary

The Supreme Court applies St. Catherine’s Milling and confirms that the surrender of lands reserved for Indians extinguishes federal jurisdiction. The federal government has jurisdiction over reserved lands until they are surrendered.

Issue

Does the 1895 surrender of reserve lands by the Indians to the Crown prevent the application of s. 91(24) of the Constitution Act, 1867, and repeal the rights of the Indians?


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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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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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Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto

Supreme Court of Canada — [2010] 2 S.C.R. 737

Ontario Jurisdiction over Indians

Summary

This decision is about the labour relations of an agency operating with an aboriginal clientele fall under federal jurisdiction. Since the essential nature of the agency’s activities is to give children’s aid, it is provincial, not federal.

If the aboriginal character of agency’s activities is predominant, Native Child would be considered as a federal undertaking and would be subject to federal laws.

Issue

Do the labour relations of the Native Child and Family Services of Toronto (“Native Child”) fall under federal or provincial jurisdiction?


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Paul v. British Columbia (Forest Appeals Commission)

Supreme Court of Canada – [2003] 2 S.C.R. 585

British Columbia Aboriginal rightsJurisdiction over IndiansTribunal jurisdiction

Summary

This case concerns the jurisdiction of an administrative tribunal over constitutional issues. The Supreme Court considers that the province could authorize the Commission to hear a defense based on aboriginal rights – to do so did not touch “the core of Indianness”.

Issue

Did the Commission have jurisdiction to consider Paul’s defense that he had an Aboriginal right to cut lumber in order to make improvements on his house?


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Cardinal v. Attorney General of Alberta

Supreme Court of Canada – [1974] S.C.R. 695

Alberta Application of laws to AboriginalsJurisdiction over IndiansLands reserved for Indians

Summary

In this decision, the Supreme Court varied from U.S. law regarding the application of laws to Indian lands. In Canada, under certain conditions, provincial laws of general application can apply to Indians and on reserve lands.

Issue

Can a provincial law, in this case, the Wildlife Act, apply to Indians on an Indian reserve?


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Daniels v. White

Supreme Court of Canada – [1968] S.C.R. 517

Manitoba Aboriginal rightsJurisdiction over IndiansTreaties

Summary

Accused of hunting migratory birds in violation of a federal law, Paul Daniels argued that the Manitoba Natural Resources Act, which provided that the province could not limit the Indians’ right to hunt, gave him immunity.

The Supreme Court found that the Act only limited the application of provincial laws, not federal ones.

Issue

Does s. 13 of the Manitoba Natural Resources Act exempt Indians from the terms of the Migratory Birds Convention Act and its Regulations?


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