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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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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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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Mitchell v. M.N.R.

Supreme Court of Canada – [2001] 1 S.C.R. 911

Quebec Aboriginal rightsGovernance (self-determination, self-government)Trade

Summary

This was a test case of the Akwesasne Mohawks’ right to carry goods across the border between Canada and the United States without having to pay customs duties because of an aboriginal right to trade on this axis. The Court unanimously rejected this possibility, guided in part by considerations of sovereignty and foreign relations.

Issue

Do the Akwesasne Mohawks hold an aboriginal right which exempts them from paying customs duties on US merchandise brought into Canada? If so, what is the nature of this right?


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R. v. N.T.C. Smokehouse Ltd.

Supreme Court of Canada – [1996] 2 S.C.R. 672

British Columbia Aboriginal rightsThird PartyTrade

Summary

This decision was delivered on the same day as Van der Peet and is part of the Van der Peet triology, which includes three cases concerning the claim of an Aboriginal right to fish commercially by three different First Nations in British Columbia. It gives details about the way to define aboriginal rights recognized and confirmed by section 35 of the Constitution Act, 1982.

Here, the burden of proof imposed on the Aboriginal party is heavy. Dissidence criticized the “frozen” interpretation of aboriginal rights.

Issue

Did the Sheshaht and Opetchesaht bands have an Aboriginal right to sell Chinook salmon and did the Fisheries Act and its Regulations infringe unjustifiably upon that right?


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