A field reshaped

The constitutional architecture of Indigenous law in Canada is grounded in s.35(1) of the Constitution Act 1982 and a sequence of SCC decisions stretching from Calder (1973) to the present. Tsilhqot''in (2014) is the high-water mark to date — the first declaration of Aboriginal title to a specific tract of land.

This guide traces the major doctrinal threads.

Aboriginal title

Calder v BC (1973) first recognised that Aboriginal title exists at Canadian common law independently of statute or proclamation. Six judges agreed title once existed; they split on extinguishment, with the case dismissed on procedural grounds.

Delgamuukw v BC (1997) articulated the content of title:

Sui generis — distinct from common-law fee simple.
Includes the right to exclusive use and occupation for a variety of purposes.
Collective — held by the community, not by individuals.
Alienable only to the Crown.
Subject to an inherent limit — uses must not be irreconcilable with the group''s attachment to the land.

The proof requirements:

Occupation prior to assertion of European sovereignty.
Continuity between present and pre-sovereignty occupation (where presently asserted).
Exclusivity at sovereignty.

Delgamuukw also established that oral histories must be placed on equal footing with documentary historical evidence — a major procedural development for s.35 litigation.

Tsilhqot''in adopted a territorial approach to occupation. Site-specific occupation is not required for semi-nomadic peoples. Regular use of definite tracts for hunting, fishing, otherwise exploiting resources, and excluding others suffices.

Aboriginal rights

R v Sparrow (1990) sets the framework for analysing s.35(1) infringement and justification:

Existing rights survive in their unencumbered, not regulated, form.
Step 1: prima facie infringement.
Step 2: justification — valid legislative objective and consistency with the honour of the Crown (priority, minimal impairment, consultation, possible compensation).

R v Van der Peet (1996, not in our beta library) added the test for what counts as an Aboriginal right: an activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the group claiming the right, predating European contact.

Métis rights

R v Powley (2003, not in our beta library) extended s.35 to Métis rights with a modified Van der Peet test pegged to effective European control rather than first contact.

Daniels v Canada (2016) declared that Métis and non-status Indians fall within s.91(24) — federal jurisdiction over "Indians and Lands reserved for the Indians". The federal Crown is the appropriate constitutional negotiating partner.

The duty to consult

Haida Nation v BC (2004) recognised a duty to consult and accommodate triggered before Aboriginal rights are proven. The duty arises from the honour of the Crown when:

The Crown has actual or constructive knowledge of the potential existence of an Aboriginal right or title; AND
The Crown contemplates conduct that may adversely affect the right.

The scope of the duty is proportionate to the strength of the case for the right and the seriousness of the potentially adverse effect — a spectrum from notice and information sharing through to deep consultation and possibly accommodation.

The duty is owed by the Crown. Procedural aspects may be delegated to project proponents, but the constitutional obligation always remains with the Crown.

Subsequent decisions extend the framework:

Mikisew Cree (2005) — applies to treaty rights as well as Aboriginal rights.
Rio Tinto Alcan (2010) — addresses what constitutes "contemplated conduct" and the meaning of "adverse effect".
Clyde River (2017) and Chippewas of the Thames (2017) — regulator-led environmental assessments can satisfy the duty if procedurally adequate.
Mikisew Cree (2018) — duty does not apply to the legislative process.

Treaties

Treaty interpretation principles (R v Marshall 1999, not in our beta library):

Treaties are read liberally, in favour of Indigenous interpretations.
Ambiguities are resolved against the Crown.
The honour of the Crown is engaged in treaty negotiation, interpretation, and implementation.

Modern treaties (e.g. Nisga''a Final Agreement 2000) implement comprehensive land claims and self-government arrangements.

UNDRIP and FPIC

The United Nations Declaration on the Rights of Indigenous Peoples was adopted by Canada in 2010 and implemented federally by the United Nations Declaration on the Rights of Indigenous Peoples Act (2021). British Columbia''s Declaration on the Rights of Indigenous Peoples Act (DRIPA) preceded it (2019).

Both statutes commit governments to align legislation with UNDRIP and consult on action plans. Free, prior and informed consent (FPIC) — UNDRIP''s consent standard — features prominently in the framework but is not yet implemented as a hard veto in Canadian law.

Where the field is going

Indigenous self-government — modern treaties continue to expand the constitutional and statutory architecture.
Restitution — claims for past breaches of treaty and fiduciary duty are working through the courts in larger and longer trials (e.g. the Robinson treaty annuity litigation, Restoule).
Free, prior and informed consent — the question of how UNDRIP-anchored consent maps onto the Sparrow/Haida architecture is unresolved.
Indigenous laws — the recognition and enforcement of Indigenous legal orders, alongside common law and civil law, is a growing scholarly and practical concern (Borrows, Friedland, Napoleon).

Key cases to know

Calder v BC (1973) — title exists at common law.
R v Sparrow (1990) — s.35 infringement and justification.
R v Van der Peet (1996) — Aboriginal-rights test.
Delgamuukw v BC (1997) — content and proof of title; oral histories.
Haida Nation v BC (2004) — pre-proof duty to consult.
R v Powley (2003) — Métis rights.
Tsilhqot''in v BC (2014) — first declaration of title; territorial occupation.
Daniels v Canada (2016) — Métis and non-status Indians within s.91(24).
Mikisew Cree v Canada (2018) — limits of duty in legislative process.