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Possibly one of the most important rulings on Indigenous title in Canadian history. It is dated, but led to many of the more recent rulings concerning Aboriginal Title. Calder v British Columbia was the first time that Canadian Law acknowledged Aboriginal Title to land pre-existed the colonization of the continent and did not arise from statutory law.

The Nisga’a Nation Tribal Council and Frank Arthur Calder brought action against the British Columbia government seeking affirmation of aboriginal title to lands within the province that had never been extinguished. The original ruling, and subsequent appeal, found that if there had been title to the land it had subsequently been extinguished. However, the Supreme Court of Canada found that there was in fact aboriginal title over land that existed prior to, and following, the 1763 Royal Proclamation. Ultimately, the court was split 3 to 3 on the question of whether the land claim was valid. This ruling led to subsequent court decisions such as Delgamuukw v British Columbia.

Possible the most important court case regarding Indigenous jurisprudence in Canadian history. The Supreme Court affirmed the unique nature of Aboriginal rights to the land, and the Crown’s obligation to give adequate weight to those rights in land claim disputes. The Court also found that the common law and Aboriginal perspectives were equally valid, and urged “reconciliation” between assertion of Crown sovereignty and the existence of Aboriginal peoples. The Court did assert the right of governments to override the exclusive use of Indigenous lands as long as sincere efforts were made to consult and accommodate Indigenous rights-holders. The amount of consultation and accommodation was linked to the significance of the infringement on the rights of the land-holders and the strength of their claims to title. Most significantly, the Court gave weight to the validity of oral-history testimony. Ultimately, the court did not decide on the legitimacy of the claim, but instead saw fit to lay the groundwork for best practices in future court decisions regarding such claims.

The Batchewana Indian Band sought a declaration concerning section 77(1) of the Indian Act, which states that only “ordinary resident” band members on reserve are permitted to vote in band elections. This section of the Indian Act was problematic because only one third of registered members actually lived on the reserve, and the case was initiated in an effort to seek clarification on behalf of the non-resident members of the Band.

The court unanimously agreed with the Court of Appeals ruling that the Act violated section 15(1) of the Charter of Rights and Freedoms. The Court was split on the “proper application of the test” , and found that “an analogous ground upon which a section 15 claim can be based must be immutable, either actually immutable, such as race, or constructively immutable such as religion. Furthermore, once a ground identified as analogous it remains analogous for all circumstances.”

The Supreme Court of Canada indicated that the “Honour of the Crown” required the provincial government to consult and accommodate in good faith on issues of resource development where Aboriginal title is asserted but not yet established. The Court did not extend this accommodation to the honouring of First Nations veto requests, but indicated that consent may be required in particular circumstances.

In 2009, Sharon McIvor sought a decision concerning the alleged gender discrimination in section 6 of the Indian Act.

In 1985, McIvor applied for status following the passage of Bill C-31 and the amendment of the Indian Act. Though a lifelong member of the Lower Nicola Band in British Columbia, McIvor was non-status for much of her life because she her ancestry was maternal. In 1985, McIvor applied for status following the passage of Bill C-31 and the amendment of the Indian Act. While Indian and Northern Affairs Canada had given her status under section 6(1)(c) of the Indian Act, her son was found to only be eligible for limited status, and her grandchildren were not entitled at all.

McIvor sought the decision for her grandchildren despite the fact that she had gained status and argued that her inability to pass her status to grandchildren was an act of gender discrimination, as status men in a similar position were able to do so: “[m]ore importantly, she argued that registration as an Indian impacts both individual identity and communal membership and therefore stands for more than just access to programs and services.”

The Court agreed with McIvor and found that section 6 did, in fact, discriminate between descendants of female and male Indigenous peoples born before 1985. This discrimination was found to be in violation of Section 15 of the Canadian Charter of Rights and Freedoms. Ultimately, the decision was appealed and while the Court of Appeal for British Columbia agreed with the trial court, but found that the trial court remedy was too broad. The subsequent appeal to the Supreme Court of Canada was rejected.

The Province of British Columbia issued a licence to Carrier Lumber to harvest in territories claimed by the Xeni Gwet'in band. The Xeni Gwet'in blockaded the land in question and filed suit seeking a declaration that would prevent Carrier Lumber from continued commercial logging in the area, and additionally to establish aboriginal title over the land, which they argued was part of their historic territories. The Federal and Provincial governments both opposed the claim. The initial court decision rejected the land claim for procedural reasons. The BC Court of Appeal also denied title to the band, except in limited situations. The Supreme Court of Canada unanimously allowed an appeal, and contrary to the lower courts, ruled that the Tsilhqot’in did indeed have have a claim to title:

The court held that Aboriginal title constitutes a beneficial interest in the land, the underlying control of which is retained by the Crown. Rights conferred by Aboriginal title include the right to decide how the land will be used; to enjoy, occupy and possess the land; and to proactively use and manage the land, including its natural resources. But, the court set out a Sparrow-style mechanism by which the Crown can override Aboriginal title in the public interest:

1. the Crown must have carried out consultation and accommodation;
2. the Crown's actions must have been supported by a compelling and substantial objective; and
3. the Crown's action must have been consistent with its fiduciary obligation to the Aboriginal body in question. (cite)

In the Daniels ruling, the Supreme Court of Canada declared unanimously that the federal government has constitutional responsibility for both Métis and non-status Indians.

The judgement affirms that the Constitution act of 1867 does not just refer to Status Indians and Inuit Peoples, but to all Indigenous peoples in Canada.

This judgement removes the jurisdictional uncertainty over the provision of services to over half a million Indigenous persons, and clearly places the responsibility for such provision with the federal government.

In this case, the Peoples of Clyde River, Nunavut, requested that the Supreme Court overturn the N.E.B. decision to permit a Norwegian consortium to perform seismic testing in Baffin Bay. The court decided that the N.E.B. had failed in their duty to properly consult the Inuit, and also to adequately assess the impact on treaty and Indigenous rights prior to approval.

The Chippewa of the Thames First Nation was requesting a reversal of the N.E.B. decision to allow Enbridge to reverse pipeline flow and increase heavy crude capacity on the Line 9 pipeline. The Chippewa were in opposition to the proposed pipeline that was planned to pass through their territory between Sarnia and Montreal. The court found that the Chippewa had been given early notice of hearings and invited to participate in N.E.B. hearings, and that the Chippewa had accepted that invitation and appeared at the hearings. Though the court was critical of the Crown’s “failure to provide timely notice that it intended to rely on the NEB’s process to fulfill its duty to consult, its consultation obligation was met.” The court ultimately ruled against the Chippewa of the Thames, and allowed the pipeline development to proceed.

NB: The citation information will be available after the online court records are updated.

In his ruling, Supreme Court Justice Robert Johnston brought to an end a 12-year dispute over the western boundary of Treaty 8. This case is particularly interesting in that the original signatories, the Crown and the Treaty 8 Nations, both agreed upon the original boundaries.

In the early 2000’s, the B.C. government and the Treaty 8 First Nations were involved in revenue-sharing discussions. The province disputed the First Nations claim that the Treaty territories extended to the Pacific Divide, and instead ended at the height of the Rockies. Additionally, the province indicated that no development benefits in those areas would be forthcoming without successful litigation.

In 2005, the West Moberly, Halfway River, Salteau, Prophet River, and Doig River First Nations sued the provincial government aiming to gain a preferential ruling that would ensure their access to development benefits accruing in the disputed areas. In an unusual turn of events, their case was supported by the Government of Canada, while the Dene, Takla Lake, and Tahltan First Nations sought intervenor status because of their modern land claims in the area.

Given the age and inaccuracy of the original Treaty maps, Justice Johnston leaned instead on historical circumstances and the accepted testimony of the First Nations. In the decision, he considered a vast array of research that drew from ethnographic, historic, and linguistic research, ultimately leaning on the Indigenous testimony as a means of interpretation. In a departure from recent rulings in the region, Justice Johnston decided in favour of the Treaty 8 First Nations, declaring “that the western boundary of Treaty 8 is the height of land along the continental divide between the Arctic and Pacific watersheds (the Arctic-Pacific divide).” This decision provides an opportunity for more meaningful Indigenous involvement in regional resource development.