Indigenous Legal Issues

During constitutional reform discussions, the federal government provided funding to four national Aboriginal organizations but not to the Native Women's Association of Canada (NWAC).

NWAC sought an order of prohibition, arguing that the failure to provide equal funding and participation violated their freedom of expression and equality rights under the Charter.

The Supreme Court of Canada held that the government's decision did not violate ss. 2(b), 15(1), or 28 of the Charter, as freedom of expression does not generally place a positive obligation on the government to fund or consult anyone.

The Court also found no violation of s. 35 of the Constitution Act, 1982, and concluded that the Federal Court of Appeal had jurisdiction to grant declaratory relief.

The appellant, a status Indian and member of the Hiawatha Band, was convicted of fishing out of season contrary to the Ontario Fishery Regulations.

He appealed, arguing that he had an existing treaty right to fish under section 35(1) of the Constitution Act, 1982.

The Supreme Court of Canada dismissed the appeal, upholding the lower courts' findings that the 1923 Treaty, which contained a broad 'basket clause', validly extinguished the Band's fishing rights in the Otonabee River area.

The Court found no ambiguity in the treaty and concluded that the signatories understood its terms.

The National Energy Board granted Hydro-Québec licences to export electricity to the United States, subject to conditions requiring environmental assessments of future generating facilities.

The appellants challenged the licences on grounds of inadequate cost-benefit analysis, procedural fairness, breach of fiduciary duty, and infringement of aboriginal rights.

The respondents cross-appealed the imposition of the environmental conditions.

The Supreme Court of Canada held that the Board properly conducted its review, owed no fiduciary duty in its quasi-judicial capacity, and did not infringe aboriginal rights.

Furthermore, the Court found that the Board acted within its jurisdiction under the National Energy Board Act and the EARP Guidelines Order by considering the environmental effects of future facilities and imposing the conditions.

The appellant, an Indian residing on a reserve, received regular and enhanced unemployment insurance benefits based on qualifying employment located on the reserve.

The Minister of National Revenue assessed these benefits as taxable income.

The Supreme Court of Canada held that the situs of the benefits should be determined by evaluating various connecting factors in light of the purpose of the Indian Act tax exemption.

Because the qualifying employment was located on the reserve, the benefits were also situated on the reserve and thus exempt from taxation under section 87 of the Indian Act.

The appellants, Chief and Councillor of the Shawanaga First Nation, were convicted of unlawfully conducting a bingo contrary to the Criminal Code.

They argued that the lottery provisions of the Criminal Code were unconstitutional and that they had a defence of colour of right, mistakenly believing the laws did not apply to their activities on an Indian reserve.

The Supreme Court of Canada dismissed the appeal, holding that the constitutional questions were resolved in the companion case of R. v. Furtney, and that the defence of colour of right was unavailable because their mistake was one of law, not fact.

The Attorney General for Ontario brought an action against the Bear Island Foundation after cautions were registered against unceded land on behalf of the Temagami Band of Indians.

The Foundation counterclaimed for a declaration of quiet title based on aboriginal rights.

The Supreme Court of Canada found that while the Indians exercised sufficient occupation to establish an aboriginal right, this right was surrendered by subsequent arrangements adhering to the Robinson-Huron Treaty in exchange for annuities and a reserve.

Although the Crown breached its fiduciary obligations under this agreement, the aboriginal right was nonetheless extinguished.

The appeal was dismissed.

The appellants appealed from a judgment of the British Columbia Court of Appeal that dismissed an appeal from a judgment continuing an interlocutory injunction.

The injunction restrained the appellants and members of their bands from fishing in accordance with Tribal Council by-laws.

The Supreme Court of Canada dismissed the appeal, finding no error in the Court of Appeal's decision not to interfere with the Chambers Judge's disposition.

The appellants, who negotiated a tax rebate from the Government of Manitoba on behalf of several Indian bands, sought to garnish the settlement funds before judgment to secure their contingency fees.

The respondent bands argued the funds were protected from attachment under sections 89(1) and 90(1)(b) of the Indian Act.

The Supreme Court of Canada dismissed the appeal, holding that the funds could not be garnished.

While the Court split on whether 'Her Majesty' in section 90(1)(b) includes the provincial Crown, the majority concluded that either the funds were protected by the Indian Act or the provincial Garnishment Act did not apply to the Crown in these circumstances.

The appellant, a member of the Musqueam Indian Band, was charged under the Fisheries Act with fishing with a drift net longer than permitted by the Band's Indian food fishing licence.

He defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the net length restriction was inconsistent with s. 35(1) of the Constitution Act, 1982.

The Supreme Court of Canada established a framework for analyzing s. 35(1) claims, holding that an aboriginal right is not extinguished by mere regulation and that any government regulation infringing upon an aboriginal right must be justified.

The Court dismissed the appeal and cross-appeal, ordering a new trial to determine whether the net length restriction constituted a prima facie infringement and, if so, whether it was justified.

The appellant, a Treaty 8 Indian, killed a grizzly bear in self-defence while hunting for food.

A year later, in financial need, he obtained a licence and sold the hide.

He was charged with trafficking in wildlife under the provincial Wildlife Act.

The Supreme Court of Canada held that while Treaty 8 originally protected commercial hunting, the 1930 Natural Resources Transfer Agreement restricted this to hunting for food.

The sale of the hide was a commercial act, not hunting for food, and therefore the provincial prohibition applied.

The appeal was dismissed, though a stay of proceedings was ordered due to the unique circumstances.

The appellants appealed a decision striking out their statement of claim, which sought a declaration that various federal and provincial statutes were unconstitutional.

The Supreme Court of Canada allowed the appeal, holding that the test for striking out a statement of claim was not met, as the outcome was not 'plain and obvious' or 'beyond doubt'.

The Court found that the issues regarding the interpretation of the Manitoba Act, 1870 and the Constitution Act, 1871 were better determined at trial with a proper factual base, and that the subject matter was justiciable.

The plaintiffs applied for a rehearing of an appeal regarding amendments to pleadings in an aboriginal claim.

The Supreme Court of Canada had previously dismissed the appeal, allowing the amended pleadings to stand because they were not clearly invalid.

The plaintiffs sought a pronouncement on further issues considered by the Court of Appeal, such as the nature of the action and the necessity to establish the continued existence of the Indian nations.

The Supreme Court dismissed the application, finding it premature to pronounce on these questions without evidence at this early stage of the action.

Appeal from an order permitting amendment of pleadings in litigation arising from alleged impacts of railway construction on river habitat and asserted Aboriginal and Indian Act rights.

The appellants argued the proposed amended pleadings were defective because the claims were communal in nature and could not be advanced as personal actions by members of Nations.

The Court held that authority to bring the claims and the personal entitlement of members were questions of fact or mixed fact and law best determined by the trial judge.

The appeal was dismissed and the amendments were allowed to stand.

The plaintiff Indian Band brought a trespass action in the Federal Court against the defendant Indian Band regarding the use and occupation of a reserve, alleging the Crown breached its fiduciary and statutory duties.

The defendant Band moved to dismiss the action for want of jurisdiction.

The Supreme Court of Canada held that the Federal Court has jurisdiction under section 17(3)(c) of the Federal Court Act, as the dispute involves conflicting claims to an obligation owed by the federal Crown, and the claim is based on 'laws of Canada' including the Indian Act and the federal common law of aboriginal title.

The Woodstock Indian Band barricaded a railway right-of-way that crossed their reserve, claiming the railway company had no right to use the land.

The railway company sought a permanent injunction to restrain the Band from interfering with its right-of-way.

The Supreme Court of Canada held that the railway company's predecessor had acquired a statutory easement in the nature of a right-of-way over the land prior to Confederation, with the permission of the Crown.

This valid right-of-way was sufficient to support the award of a permanent injunction against the Band, without needing to determine whether the Band's underlying interest in the fee held by the Crown had been extinguished.

The appellant was convicted under the New Brunswick Motor Vehicle Act for failing to yield the right-of-way while driving on an Indian reserve.

He appealed, arguing that he could only be charged under the federal Indian Reserve Traffic Regulations.

The Supreme Court of Canada dismissed the appeal, holding that provincial motor vehicle laws of general application apply ex proprio vigore on Indian reserves in the absence of conflicting federal legislation.

The Court found no conflict between the provincial Act and the federal regulations, as the federal regulations merely incorporated provincial laws by reference without demonstrating an intent to exclusively cover the field.

The appellants, Treaty Indians, were convicted of hunting wildlife with a spotlight on privately owned land without the owners' permission, contrary to the Saskatchewan Wildlife Act.

They appealed, arguing they had a right of access to the lands for hunting under the Wildlife Act, Treaty No. 6, or custom and usage, which would exempt them from prosecution under the Natural Resources Transfer Agreement.

The Supreme Court of Canada dismissed the appeal, finding that the Wildlife Act does not create a statutory right of access to private lands, no custom or usage was proven, and Treaty No. 6 does not grant a right to hunt on occupied private lands.

The appellant, a registered Micmac Indian, was convicted under the Nova Scotia Lands and Forests Act for possession of a rifle and shotgun cartridges.

He argued that the Treaty of 1752 and s. 88 of the Indian Act provided immunity from prosecution.

The Supreme Court of Canada held that the Treaty of 1752 was validly created, had not been terminated, and constituted a 'treaty' under s. 88 of the Indian Act.

The Court found that the treaty right to hunt included the incidental right to possess a firearm and ammunition safely.

As provincial legislation cannot restrict native treaty rights under s. 88, the appellant was exempt from prosecution.

The appeal was allowed and acquittals entered.