CA — Aboriginal & Indigenous Law (AI set 1)

All cards in this deck

Tsilhqot'in Nation — what is the test for Aboriginal title to land?

Tsilhqot'in Nation v British Columbia [2014] 2 SCR 257 held that Aboriginal title arises where a group can prove sufficient, continuous (if historical occupation is recent), and exclusive pre-sovereignty occupation of the land; once proven, title confers a beneficial interest in the land itself, not merely a right to engage in specific activities.

Haida Nation — when does the duty to consult arise, and who bears it?

Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511 established that the duty to consult arises when the Crown has real or constructive knowledge of a credible but unproven Aboriginal claim or right, and contemplates conduct that might adversely affect it; the duty rests on the Crown, not third parties, though third parties may have independent accommodation obligations.

Haida Nation — how is the depth of consultation calibrated?

In Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511, the SCC set out a spectrum: where the claim is weak or the impact minor, notice and discussion may suffice; where the claim is strong and the potential impact significant, deep consultation and accommodation, up to and including changes to the proposed action, are required.

Delgamuukw — what kinds of evidence are admissible to prove Aboriginal title?

Delgamuukw v British Columbia [1997] 3 SCR 1010 held that oral histories of Aboriginal peoples must be placed on an equal footing with other forms of historical evidence when proving Aboriginal title or rights; courts must adapt their evidentiary rules to ensure Aboriginal claimants are not unfairly disadvantaged by the common law's reliance on written records.

Calder — what was the constitutional significance of the decision for Aboriginal title in Canada?

Calder v British Columbia (Attorney General) [1973] SCR 313 was the first Supreme Court of Canada decision to recognize that Aboriginal title to land existed at common law prior to Crown assertion of sovereignty, regardless of the Royal Proclamation of 1763, and that it could survive unless validly extinguished — laying the foundation for all subsequent Aboriginal title jurisprudence.

Sparrow — what does 'existing' in s.35(1) mean for Aboriginal rights?

R v Sparrow [1990] 1 SCR 1075 interpreted 'existing' in s.35(1) of the Constitution Act, 1982 to mean rights that were not extinguished prior to April 17, 1982; the Court rejected the argument that regulation amounted to extinguishment, holding that extinguishment requires a clear and plain intention by the Crown to extinguish the right.

R v Van der Peet — what is the 'integral to a distinctive culture' test?

To establish an Aboriginal right under s.35, the claimant must prove the practice, custom or tradition was integral to the distinctive culture of the Aboriginal group prior to European contact. The right must be of central significance to the society, not merely incidental: R v Van der Peet, [1996] 2 SCR 507.

Tsilhqot'in Nation — what legal consequences flow from a declaration of Aboriginal title?

A declaration of Aboriginal title confers the right to exclusive use and occupation of the land, including the right to proactively use and manage it and to benefit from its economic exploitation. The Crown may still infringe title only by meeting the Sparrow justification framework, adapted to title: Tsilhqot'in Nation v British Columbia, [2014] 2 SCR 257.

Haida Nation — does the duty to consult require a proven Aboriginal right or title before it arises?

No. The duty to consult is triggered by the Crown's knowledge of a credible but unproven claim to an Aboriginal right or title, not by its final establishment. The Crown must act honourably whenever it contemplates conduct that might adversely affect that claim: Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511.

Delgamuukw — what is the territorial scope requirement for Aboriginal title?

Aboriginal title attaches to specific land; the claimant group must show sufficient, continuous and exclusive occupation of the particular territory claimed at the time of Crown sovereignty. General presence in a region is insufficient: Delgamuukw v British Columbia, [1997] 3 SCR 1010.

Simon v The Queen — what is required for a treaty right to attract s.35 protection?

A treaty right is protected under s.35 of the Constitution Act, 1982 if the treaty was validly entered into and the right claimed falls within its terms; courts are to interpret treaties generously and in favour of the Aboriginal signatories. The 1752 Mi'kmaq Peace and Friendship Treaty was upheld on this basis: Simon v The Queen, [1985] 2 SCR 387.

R v Sparrow — what does the 'priority' requirement mean in the justification analysis?

Even where Crown infringement of an Aboriginal right is for a valid legislative objective, the Crown must give the Aboriginal group's exercise of that right top priority after conservation goals are met. Failure to give priority is fatal to justification: R v Sparrow, [1990] 1 SCR 1075.

Tsilhqot'in Nation — how does the 'continuity' element of the Aboriginal title test work?

Continuity requires that present-day claimants be the descendants of the group that occupied the land at Crown sovereignty, and that there be substantial maintenance of the connection to the land over time; perfect, unbroken occupation is not required. Tsilhqot'in Nation v British Columbia, [2014] 2 SCR 257 affirmed that regular and exclusive use satisfies continuity.

Van der Peet — how does the 'prior to European contact' threshold apply to Aboriginal peoples with post-contact practices?

The integral practice must have existed before European contact, but courts may recognise evolved or modern expressions of that practice so long as they have a reasonable degree of continuity with the pre-contact practice. A practice that arose solely because of European influence will not qualify: R v Van der Peet, [1996] 2 SCR 507.

Haida Nation — can Aboriginal peoples enforce the duty to consult against third-party permit holders?

No. The duty to consult and accommodate lies with the Crown alone, not with private third parties such as forestry licensees; however, the Crown cannot delegate the duty itself to those parties. Third parties may have procedural obligations but legal responsibility for honourable conduct remains with the Crown: Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511.

Delgamuukw — what standard of occupation must claimants prove to establish aboriginal title?

Claimants must show that, at the time the Crown asserted sovereignty, their ancestors occupied the land in a manner that was sufficient, continuous (where present occupation is relied upon), and exclusive. Delgamuukw v British Columbia [1997] 3 SCR 1010 stated that occupation must be physically sufficient to demonstrate a connection to the land, assessed by the nature of the land and the ways of life of the people.

Tsilhqot'in Nation — what is the nature of the title interest (ownership attributes) once declared?

Aboriginal title confers the right to exclusive use and occupation for a variety of purposes not confined to traditional or historic uses, but is subject to an inherent limit: the group cannot use the land in ways that would substantially deprive future generations of its benefit. Tsilhqot'in Nation v British Columbia [2014] 2 SCR 257 described this as a 'communal, sui generis' interest that is inalienable except to the Crown.

Haida Nation — what procedural obligation accompanies the duty to consult?

The Crown must not only consult meaningfully but must also be prepared to accommodate Aboriginal concerns where consultation reveals a strong claim and the potential for serious impact. Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511 (also cited as 2004 SCC 73) held that accommodation does not mean a veto, but requires good-faith efforts to address legitimate concerns.

Simon v The Queen — what interpretive principle applies to treaty construction?

Treaties with Aboriginal peoples must be interpreted liberally and in a manner that upholds the honour of the Crown, with any ambiguity resolved in favour of the Aboriginal signatories. In Simon v The Queen [1985] 2 SCR 387, the Supreme Court applied this principle to hold that a 1752 Mi'kmaq treaty right to hunt was still operative and protected.

s.35 Constitution Act 1982 — does it apply to Métis peoples, and what is the source of that inclusion?

Section 35(2) of the Constitution Act, 1982 expressly defines 'aboriginal peoples of Canada' to include Indian, Inuit, and Métis peoples, thereby extending s.35 protection to Métis rights. The scope of those rights (including the 'distinctive culture' integral-to-society test from Van der Peet) applies to Métis claims under s.35(1).