LESSON #4: STATE CRIME & ABORIGINAL TITLE Flashcards
the leading case concerning Aboriginal title
St. Catherines Milling and Lumber Co. v. The Queen, decided in 1888
St. Catherines Milling and Lumber Co. v. The Queen
(3)
(1) case was part of a dispute between Ontario and Canada over rights to land for timber.
(2) It asserted that land title in Canada remains with the Crown and that Aboriginal rights to the land are allowed only at the Crown’s pleasure and can be revoked by the Crown at any time. (3) An argument made by Ontario’s attorney general in this case disputed Indigenous land claims on the basis that the Indigenous peoples who entered into the various treaties were not nations
Royal Proclamation
actually came to be included within the Canadian Charter of Rights and Freedoms under section 25
Canadian Charter of Rights and Freedoms under section 25
Royal Proclamation
When the Constitution Act was set for a redrafting in the 1980s, for example, Prime Minister Pierre Trudeau’s government had no plans to include Indigenous peoples.
In response, Indigenous peoples held protests in an effort to get their rights protected and enshrined in the Constitution. The result was section 35 of the Canadian Constitution Act of 1982
There have been a series of court judgements dealing with Aboriginal rights and title. A notable one is the Supreme Court decision in 1973 referred to as
the Calder decision
the Calder decision
(3)
(1) laid the foundation for “modern” land claims and the rectification of treaty breaches.
(2) It was the first court case to recognize Aboriginal title of the land at the Supreme Court level
(3) it is considered to have paved the way in Canada for acceptance of the idea that Aboriginal title pre-existed treaties and other colonial documents acknowledging it.
One of the major cases dealing with Aboriginal rights is the 1990 Supreme Court case known as:
The Sparrow case
the first case at the Supreme Court of Canada that tested section 35 of the Constitution Act of 1982
The Sparrow case
R. v. Sparrow
(2)
(1) member of the Musqueam First Nation Ronald Sparrow was arrested and charged under the federal Fisheries Act for fishing with a drift net that was longer than was permitted by his licence.
(2) He did concede that the net was larger than was permitted by the food fishing licence; however, he argued that he was exercising an existing Aboriginal right to fish, so the restriction in the food fishing licence was void because it was inconsistent with section 35(1) of the Constitution Act, 1982.
court ruled in favour of Sparrow
Sparrow was exercising his inherent Indigenous right to fish when he was arrested
The court ruled in favour of Sparrow. The ruling by the court resulted in what’s known today as the:
(1) the “Sparrow test,” or the “justification of infringement test.”
the “Sparrow test,” or the “justification of infringement test
This test sets out a list of conditions to determine whether a right exists. If a right is found to exist, it outlines how the government may be justified in breaching or limiting that right.
A law or regulation might be infringing upon an Aboriginal right if:
(3)
*it is considered “unreasonable” by the court;
*it imposes an “undue hardship” on First Nations;
*it denies right holders their “preferred means of exercising that right
Infringing upon an Aboriginal right may be justified if:
(4)
*there is “a valid legislative objective,” such as “conserving and managing a natural resource”;
*there is “as little infringement as possible in order to effect the desired result”;
*the situation is one of expropriation, and “fair compensation” is provided;
*the “aboriginal group in question has been consulted with respect to the conservation measures being implemented
Another major case dealing with Aboriginal rights is the 1996
Van der Peet case.
Van der Peet case
(2)
(1) was the first of three that became known as the “Van der Peet Trilogy
(2) also included the Gladstone and N.T.C. Smokehouse cases
In R. v. Van der Peet
(2)
(1) member of the Stó:lo¯ First Nation Dorothy Van der Peet was charged with selling 10 salmon caught under a food fish licence, contrary to section 27(5) of the British Columbia Fishery (General) Regulations.
(2) he law prohibited the sale of the fish.
Van der Peet did not win her case
the Court of Appeal’s ruling, which stipulated that, although fishing constitutes an Aboriginal right, the sale of fish for exchange of money or other goods does not.
The “integral to a distinctive culture” test, otherwise known as the:
Van der Peet test
Van der Peet test
test outlined 10 criteria that must be met in order for a practice to be affirmed and protected as an Aboriginal right under section 35 of the Constitution Act
R. v. Gladstone
(4)
(1) court applied “Van der Peet test
(2) court decided that there was an Aboriginal right to exchange or trade herring spawn on kelp, according to the Van der Peet test
(3) Charges were dropped against the two Heiltsuk brothers William and Donald Gladstone, who had been accused of attempting to sell herring spawn on kelp without a J-licence,
(4) The Supreme Court recognized that they had an unextinguished Aboriginal right to sell herring spawn on kelp and that the J-licencing scheme infringed on their Aboriginal right.
R. v. N.T.C. Smokehose Ltd
(3)
(1) members from the Sheshaht and Opetchesaht First Nations caught chinook salmon under the authority of food fishing licences.
(2) They then sold the surplus of their food fishing quotas to the First Nations–owned business N.T.C. Smokehouse Ltd, which then sold the salmon its employees caught to non-Aboriginal fish-processing companies.
(3) N.T.C. Smokehouse Ltd. was charged with the selling and purchasing of fish caught under the Indian food fish licence
Applying the Van der Peet test in R. v. N.T.C. Smokehose Ltd
(3)
(1) the Supreme Court determined that the sale of fish did not form an “integral” part of the distinctive cultures of the Sheshaht and Opetchesaht peoples.
(2) Rather, the court declared that, prior to contact, the sale of fish among the Sheshaht and Opetchesaht peoples was “few and far between” and while “Potlatches and other ceremonial occasions may well be integral features of the Sheshaht and Opetchesaht cultures and, as such, recognized and affirmed as aboriginal rights . . . the exchange of fish incidental to these occasions is not, itself, a significantly central, or significant or defining feature of these societies.”
(3) Thus, the appeal was dismissed.
Aboriginal Title: The Delgamuukw Decision
A foundational judgement regarding Aboriginal title that happened during the 1997 Supreme Court case
What judgment arose from The Delgamuukw Decision?
confirmed that, when dealing with Crown land, the government must consult Aboriginal peoples and may have to compensate those of them whose rights might be affected.
A notable aspect of The Delgamuukw Decision
(2)
(1) was the court’s acknowledgement and acceptance of the oral histories of the Gitksan and Wet’suwet’en peoples as valid.
(2) Chief Justice Lamer recognized that oral histories both exemplify historical knowledge and convey cultural values;
In the Delgamuukw Decision what did The Gitksan and Wet’suwet’en both enter as evidence?
(2)
(1) Their oral histories
(2) which are referred to as the “adaawk” and “kungax
adaawk
(2)
(1) are the oral histories of the Gitksan houses.
(2) Each house, or wilp, has its own set of sacred oral traditions, territories for which it is responsible, histories, and ancestors—all of which are recorded and reaffirmed in the adaawk
kungax
is a spiritual song or dance tying the Wet’suwet’en people to their land
To establish proof of Aboriginal title, Justice Lamer outlined three standards that had to be reached
(4)
(1) were in addition to the 10 criteria previously listed in the Van der Peet test
(2) the claimant had to demonstrate occupancy prior to Crown sovereignty being asserted.
(3) had to demonstrate the continuity of present and pre-sovereignty occupation, thus, proving that present occupancy is rooted in the past. Continuity can be exhibited through either physical evidence, such as houses, cordoned-off fields, and consistent resource use, or through the continued use of Aboriginal laws governing the area.
(4) the test must prove that the site of the land is solely occupied by the group making the claim to the territory
Two Supreme Court of Canada cases, in particular, have transformed our understanding of treaty interpretation
(1) R. v. Sioui (1990) and
(2) R. v. Marshall (1999)
R. v. Sioui (1990)
(2)
(1) tested whether the federal government could apply a narrow, literal interpretation to define what treaty obligations must be fulfilled today
(2) The Supreme Court held that the treaty was still in effect, and it gave the brothers the right to carry on their customs in the park
In the Sioui case, the Supreme Court laid out conditions for what?
(2)
(1) the types of documents that could be considered treaties.
(2) The decision also stressed that the courts must take a “liberal and generous” interpretation of treaties
R. v. Marshall (1999)
(2)
(1) The Supreme Court of Canada confirmed that Donald Marshall Jr. had a treaty right to catch and sell fish
(2) This treaty right had its origins in the “peace and friendship” treaties signed in 1760 and 1761 between the Crown and the Mi’kmaq and Maliseet peoples.
the Marshall case recognized that:
(2)
(1) the oral histories of Aboriginal peoples, which often record their understandings of treaties, must be accorded equal weight alongside written records.
(2) certainly did tip the scale toward Indigenous understandings of treaties, given that each treaty was to be interpreted according to its intent and spirit rather than to be taken literally.
The Marshall and the Sioui cases recognize that
Indigenous interpretations of treaties and of treaty rights deserve a place at the table.
The rulings from R. v. Marshall (No 2) added
A “clarification” to the first Marshall decision, outlining that the Crown could limit the exercise of a treaty right if doing so “can be justified on conservation or other grounds.
The Crown’s Fiduciary Duty
(3)
(1) The Canadian government has a fiduciary duty that was agreed to in the treaties.
(2) This “fiduciary duty requires the Crown to act honourably” due to its unique historical relationship with Aboriginal peoples.
(3) This duty means that the Crown must not infringe on Aboriginal and treaty rights when passing laws.
Some of the Supreme Court of Canada cases that have confirmed the Crown’s fiduciary duty to consult and accommodate Aboriginal peoples include:
(4)
(1) Haida Nation v. British Columbia (Minister of Forests),
(2) Taku River Tlingit First Nation v. British Columbia,
(3) Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), and
(4) Beckman v. Little Salmon/Carmacks First Nation
Haida Nation v. British Columbia (Minister of Forests)
(4)
(1) the Province of British Columbia issued a “Tree Farm License” (TFL) to a large forestry firm authorizing tree harvesting on the Haida people’s land
(2) This TFL was renewed in 1981, 1995, and 2000. In 1999, it was transferred to a large forestry firm, Weyerhaeuser Co. No consent was obtained from the Haida Nation, nor was there consultation for any of these actions.
(3) Haida Nation consequently challenged these renewed licences, as well as the transfer, because all these actions were taken without their consent and over their objections.
(4) in a unanimous decision, Chief Justice McLachlin found that “the government has a legal duty to consult with the Haida people about the harvest of timber from Block 6, including decisions to transfer or replace Tree Farm Licences
