Quebec (Attorney-General) v. Moses

Supreme Court of Canada – [2010] 1 S.C.R 557

Quebec ConsultationEnvironmental assessmentTreaties

Summary

Because of this decision, both federal and provincial environmental assessment processes must be conducted in some cases, sometimes resulting in duplication.

The Court addresses the interpretation of modern treaties such as the James Bay Northern Quebec Agreement. It concludes that since they resemble modern contracts a lot more than historical treaties, they should not be interpreted with the same liberal rules.

Issue

Does the JBNQA exempt a mining project within its territory from an independent environmental assessment inquiry by the federal government?


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Canada (Attorney General) v. Lameman

Supreme Court of Canada – [2008] 1 S.C.R. 372

Alberta Fiduciary dutyIdentityTreaties

Summary

The Court did not decide the case on its merits since it judged that it was statute barred.  The Court noted that the Aboriginals could have filed their application in the 1970s, and because they had failed to do so, it was now too late.

It was not well received by Aboriginal people, since in the 1970s a lot of them thought (or were told) they had no case because the law was not as evolved as it is today.

Issue

Did the Crown breach its fiduciary duty by omitting to clearly inform the Band members of the consequences of “taking script” and pressuring the leadership to surrender their tract of lands, and did it breach its treaty obligations  by not giving the full 48 square miles to the Band and by not distributing a sufficient amount of food?


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R. v. White and Bob

Supreme Court of Canada – [1965], 52 D.L.R. (2d) 481

British Columbia Treaties

Summary

The Supreme Court develops a liberal approach to treaty interpretation, and recognizes the existence of a treaty.

Issue

Was the 1854’s agreement a treaty in the sense of the Indian Act?


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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 This case is no longer applicable, with the constitutional recognition of treaty rights in 1982.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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Simon v. The Queen

Supreme Court of Canada – [1985] 2 S.C.R. 387

Nova Scotia Application of laws to AboriginalsTreaties

Summary

Simon is one of the first cases about peace and friendship treaties in Canada. The Court recognizes that peace and friendship treaties can be considered as treaties within the meaning of section 88 of the Indian Act and, as such, exempt their beneficiaries from the application of certain provincial laws.

Issue

Is the Treaty of 1752 valid and still in force and, if so, does it guarantee hunting rights for the Micmacs? Is it included within the meaning of treaty in section 88 of the Indian Act and can Simon invoke an exemption from prosecution under the Lands and Forests Act of Nova Scotia as a direct descendent of the Micmacs who signed the Treaty with the British in the first place?


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R. v. Badger

Supreme Court of Canada – [1996] 1 S.C.R. 771

Alberta Application of laws to AboriginalsTreaties

Summary

This case summarizes and specifies the legal framework surrounding the interpretation and application of historical treaty rights.

The Court insists on the honour of the Crown in its dealings with Indians, and reiterates that it is up to the Crown to prove, by an absolute evidence, that an aboriginal or treaty right has been extinguished by a clear and plain intention by the government.

Issue

  1. Has the right to hunt on Treaty 8 land been extinguished?
  2. If not, can it be exercised on privately owned lands situated in Treaty No. 8 territory?
  3. Does the Wildlife Act apply to status Indians under Treaty No. 8?


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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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Ermineskin Indian Band and Nation v. Canada

Supreme Court of Canada – [2009] 1 S.C.R. 222

Alberta Fiduciary dutyIndian ActTreaties

Summary

The fiduciary obligation of the Crown is not breached because it paid interest on Indian moneys instead of investing them in a diversified portfolio. The fiduciary obligation of the Crown requires the use of discretion in the best interests of the bands; however this does not necessitate investment.

Issue

Does the fiduciary obligation of the Crown necessitate the investment of royalties received on behalf of the Samson and Ermineskin Indian bands? If not, does its chosen method of calculation and payment of interest constitute a breach of the fiduciary duty?


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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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