Category Archives: Aboriginal

Today’s Word on the Street – “Consent”, Brought to You by the Supreme Court of Canada

By: Sharon Mascher

PDF Version: Today’s Word on the Street – “Consent”, Brought to You by the Supreme Court of Canada

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

 On June 26, 2014, the Supreme Court of Canada (SCC) granted the Tsilhqot’in Nation a declaration of Aboriginal title over 1,750 square kilometres of its territory.  That the SCC has granted the first ever declaration of Aboriginal title in Canada, in and of itself, makes this a decision of great significance (see Jonnette Watson Hamilton’s post on that issue here). However, through its unanimous decision, the SCC has done much more than this – it has refocused the discussion around the infringement of Aboriginal title away from its current pre-occupation with consultation towards consent.  In this respect the decision is momentous – not only for Aboriginal title holders but for all Canadians.  For this reason, this decision may indeed mark, in the words of Tsilhqot’in Nation Tribal Chair Joe Alphonse, the beginning of a “new Canada” (see here). Continue reading →

Tsilhqot’in: What Happened to the Second Half of Section 91(24) of the Constitution Act, 1867?

By: Nigel Bankes and Jennifer Koshan

PDF Version: Tsilhqot’in: What Happened to the Second Half of Section 91(24) of the Constitution Act, 1867?

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

The Delgamuukw decision of the Supreme Court of Canada, [1997] 3 SCR 1010 was an important decision both on aboriginal title and also on the division of powers under the Constitution Act, 1867– in particular for its robust reading of the “lands reserved” head of s.91(24) and the companion language of s.109 (provincial title subject to “any interest other than that of the province in the same”): see Bankes, “Delgamuukw, Division of Powers and Provincial Land and Resource Law: Some Implications for Provincial Resource Rights” (1998), 32 UBC L Rev 317-351 and Kent McNeil “Aboriginal Title and the Division of Powers: Rethinking Federal and Provincial Jurisdiction” (1998) 61 Sask L Rev 431-465. The Tsilhqot’in decision is also an important decision on both issues; but it will be remembered (if it too does not go the way of Marshall and Bernard, [2005] SCC 43 – read into nothingness as our colleague Jonnette Watson Hamilton points out here) on the division of powers issues as the decision that, in extended obiter dictum (see paras 98 and 126), eviscerated the lands reserved head of s.91(24).

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Establishing Aboriginal Title: A Return to Delgamuukw

By: Jonnette Watson Hamilton

PDF Version: Establishing Aboriginal Title: A Return to Delgamuukw

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

The declaration of Aboriginal title by the Supreme Court of Canada on June 26, 2014 — a first in Canada — is a momentous decision that should have long-lasting significance for the Tsilhquot’in Nation, other Aboriginal groups, and the rest of Canada. The unanimous Supreme Court decision made new law in the areas of the duty to consult and accommodate, governments’ justification of infringements of Aboriginal title, and federalism — matters that my colleagues Nigel Bankes, Sharon Mascher and Jennifer Koshan will be writing about. On the law of Aboriginal title — the focus of this post — the decision is extremely important for at least two reasons. First, as part of its return to principles set out in the Court’s 1997 decision in Delgamuukw v British Columbia, [1997] 3 SCR 1010, Tsilhqot’in Nation includes a return to an equal role for Aboriginal perspectives that includes Aboriginal  laws, instead of the exclusive focus on Aboriginal practices that was a feature of R v Marshall; R v Bernard, 2005 SCC 43, [2005] 2 SCR 220, the Court’s second post-1982 decision on Aboriginal title. Second, Tsilhqot’in Nation clarifies an understanding of occupation that accords with a territorial approach to Aboriginal title, one that does not require and piece together intensive use of well-defined tracts of land. In doing so, the Court turned its back on the approach it took in Marshall/Bernard, an approach that was the source of the arguments made by the governments of Canada and British Columbia in Tsilhqot’in Nation and the basis of the British Columbia Court of Appeal decision in this case (William v British Columbia, 2012 BCCA 285). The June 26 decision therefore brings increased certainty to the law of Aboriginal title by clarifying the type of occupation that will ground Aboriginal title. It also increases the likelihood of more successful Aboriginal title claims and, hopefully, more intensive and good faith negotiations in modern land claims and treaty processes.

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Court of Appeal Confirms the Availability of a Disgorgement Remedy as a Possible Means of Assessing Damages for Breach of a Modern Land Claim Agreement

By: Nigel Bankes

PDF Version:Court of Appeal Confirms the Availability of a Disgorgement Remedy as a Possible Means of Assessing Damages for Breach of a Modern Land Claim Agreement

Case commented on: Nunavut Tunngavik Incorporated v Canada (Attorney General), 2014 NUCA 02

The Nunavut Court of Appeal has confirmed the availability of a disgorgement remedy as a possible means of assessing damages for breach of a modern land claim agreement. However, the majority of the Court (Justices Slatter and O’Brien) ruled that summary judgment was not available to the Nunavut Tunngavik Inc (NTI) in this case and that consequently damages must still be assessed following the trial. Justice Hunt (dissenting on this point) concluded that summary judgment was available. All members of the Court were agreed that nominal damages would not be appropriate in this sort of case even if NTI were unable to prove actual damages. To allow an award of nominal damages for breach of a land claim agreement would not foster the overall goal of reconciliation.

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“The Feather and the Fiddle”: The Meaning of ‘Indian’ in s 91(24)

By: Geoff S. Costeloe

PDF Version: “The Feather and the Fiddle”: The Meaning of ‘Indian’ in s 91(24)

Cases commented on: Daniels v Canada, 2013 FC 6; Canada v Daniels, 2014 FCA 101.

A decision by the Federal Court of Appeal has largely upheld a trial judge’s finding on just who exactly is encompassed by the word ‘Indian’ in s 91(24) of the Constitution Act, 1867. The section gives the federal government the power to regulate

24.       Indians, and Lands reserved for Indians.

The argument brought by the plaintiffs is that the word ‘Indian’ is broad enough to include both Métis individuals and non-status Indians. The trial judge found that both of these groups were ‘Indians’ under s 91(24) while the Federal Court of Appeal upheld the inclusion of Métis, but it rejected the inclusion of non-status Indians. Both of these decisions will be discussed below. The trial decision was the subject of the Alberta Court of Appeal moot this year, in which I participated as co-counsel for the plaintiffs (with Dex Zucchi, who dealt with issues on fiduciary duty that will not be addressed here).

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