Ministry
of Aboriginal Affairs, Province of British Columbia
Landmark Court Cases
In British Columbia, the courts have played an important role in
the ongoing efforts of aboriginal people to have their rights recognized.
Frustrated by the refusal of past provincial governments to recognize aboriginal
rights, and to negotiate treaties that would define those rights, First
Nations began turning to the courts for justice. These decisions underscore
the need for the Province to avoid prolonged, expensive legal battles and
resolve disputes through negotiation, rather than litigation.
Calder decision, Supreme Court of Canada, 1973
In the Calder case, the Nisga’a Tribal Council asked the courts to support
their claim that aboriginal title had never been extinguished in the Nass
Valley, near Prince Rupert. Although the court ultimately ruled against
the Nisga’a on a technicality, the case is important because in Calder
the Supreme Court of Canada ruled that aboriginal title is rooted in the
“long-time occupation, possession and use” of traditional territories.
As such, title existed at the time of original contact with Europeans,
regardless of whether or not Europeans recognized it.
After the Calder decision, Canada agreed to begin negotiating treaties
to define aboriginal rights to land and resources.
Guerin decision, Supreme Court of Canada, 1984
In the Guerin case, the Musqueam Indian Band sued the federal Crown for
breach of trust concerning the leasing of reserve land to a golf club in
the late 1950s. The Supreme Court of Canada ruled that the federal government
had a “fiduciary responsibility” for aboriginal people - that is, a responsibility
to safeguard aboriginal interests - which it had breached. Chief Justice
Brian Dickson described First Nations’ interests in their lands as a “pre-existing
legal right not created by the Royal Proclamation...the Indian Act...or
any other executive order or legislative provision.” The ruling was especially
significant because it recognized pre-existing aboriginal rights both on
reserves and outside reserves.
Meares Island case, B.C. Supreme Court, ongoing
In 1984, Nuu-chah-nulth people and other protesters blocked the access
of MacMillan Bloedel to Meares Island. The Province regarded the vast majority
of the island as Crown land, but the protestors claimed allowing logging
on Meares Island interfered with aboriginal title. A court injunction was
sought to halt MacMillan Bloedel’s operations until the claim had been
resolved.
The B.C. Supreme Court denied the request, but the B.C. Court of Appeal,
which does not usually hear appeals in such injunction cases, overturned
that ruling. The court indicated that aboriginal claims should be resolved
by “negotiations and by settlement ... in a reasonable exchange between
governments and the Indian nations.”
The Meares Island case is adjourned by agreement of the Nuu-chah-nulth,
MacMillan Bloedel, the Province and Canada. The injunction on logging is
still in effect and none of the parties has requested the trial resume.
Sparrow decision, Supreme Court of Canada, 1990
In the Sparrow case, a member of the Musqueam Indian band appealed his
conviction on a charge of fishing with a longer drift-net than permitted
by the terms of the band's fishing license under the Fisheries Act.
He based his appeal on the argument that the restriction on net length
was invalid because it was inconsistent with Section 35 of the Constitution
Act, 1982 -- the section of the Act that recognizes and affirms existing
aboriginal and treaty rights.
The Sparrow case was the first in which the Supreme Court of Canada
was called on to interpret what Section 35 actually meant. In overturning
Sparrow's conviction, the court ruled that the Constitution Act
provides "a strong measure of protection" for aboriginal rights. Any proposed
government regulations that infringe on the exercise of those rights must
be constitutionally justified. It further ruled that:
-
aboriginal and treaty rights are capable of evolving over time and must
be interpreted in a generous and liberal manner;
-
governments may regulate existing aboriginal rights only for a compelling
and substantial objective such as the conservation and management of resources;
and,
-
after conservation goals are met, aboriginal people must be given priority
to fish for food over other user groups.
Delgamuukw case
In 1984, 35 Gitxsan and 13 Wet'suwet'en Hereditary Chiefs asked the B.
C. Supreme Court to recognize their ownership of 57,000 square kilometres
of land near Hazelton, as well as their right to govern their traditional
territories, and to receive compensation for loss of lands and resources.
In 1991, the court ruled that the Crown had extinguished aboriginal
rights at the time of Confederation, but the Province has a legal obligation
to permit aboriginal sustenance activities on unoccupied Crown land until
the land is dedicated to another purpose. The Gitxsan and Wet'suwet'en
chiefs then took their case to the B.C. Court of Appeal.
In 1993, the appeal court reversed much of the earlier decision and
ruled instead that the Gitxsan and Wet'suwet'en peoples do have
"unextinguished non-exclusive aboriginal rights, other than a right of
ownership," to much of their traditional territory. In addition, the justices
strongly recommended that the scope and content of those rights would best
be defined through negotiation rather than litigation.
In June 1997, the chiefs appealed to the Supreme Court of Canada
and a ruling was made December 11, 1997.
Negotiations to resolve the issue through the treaty process continue
with the Wet’suwet’en and the Gitxsan.
Recent legal developments
Recent decisions by the Supreme Court of Canada have largely been consistent
with the findings of the B.C. Court of Appeal in Delgamuukw. Three
cases, Van der Peet, N.T.C. Smokehouse and Gladstone
(1996) raised the issue of an aboriginal right to sell fish. In Van
der Peet, the Court defines the scope of aboriginal rights. Claims
to aboriginal rights “must be looked at in the light of the specific circumstances
of each case and, in particular, in light of the specific history and culture
of the aboriginal group claiming the right.” In order to be recognized
as an aboriginal right an activity must be an integral part of the distinctive
culture of that First Nation that existed before European arrival.
These decisions are largely consistent with the test for aboriginal
rights adopted in Delgamuukw, and provide further guidance on how
that test is to be applied. In the Supreme Court of Canada decision in
Pamajewon, which dealt with aboriginal gaming, it was determined
the same test should be applied to claims of aboriginal rights to self-government.
For further information on this or other topics, contact:
Ministry of Aboriginal Affairs
Communications Branch
PO Box 9100 Stn Prov Govt
Victoria BC V8W 9B1 |
Telephone: (250) 356-0330 or
Toll-free at: 1-800-880-1022
Fax: (250) 387-1785
Internet site: http://aaf.gov.bc.ca/aaf/ |
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Last Update: 1997 December by Webmaster