Indigenous Legal Issues

Members of a Huron band were prosecuted for cutting trees, camping, and making fires in a provincial park while carrying out ancestral customs and religious rites.

The Court held that a 1760 document signed by General Murray was a treaty within s. 88 of the Indian Act, remained in force, and protected the exercise of the respondents' customs and religion on territory frequented by the Hurons in 1760, so long as the activity was not incompatible with Crown occupancy.

The Court adopted a broad and liberal approach to treaty interpretation, capacity, and extinguishment, and found that provincial park regulation could not be enforced against the respondents in these circumstances.

The appeal was dismissed with costs.

The appellants sued the respondent in the Federal Court, Trial Division for a declaration that they had the status of Indians and that a piece of land in Newfoundland was an Indian reserve.

The respondent successfully moved to strike out the portion of the statement of claim relating to the reserve declaration, which was upheld by the Federal Court of Appeal.

The Supreme Court of Canada dismissed the appeal, agreeing with the Court of Appeal that the Federal Court lacks jurisdiction under s. 17 of the Federal Court Act to grant relief affecting the property rights of a province.

The appellant and respondent, members of an Indian Band, divorced.

The appellant sought a division of family assets under the provincial Family Relations Act, specifically claiming an interest in properties on the reserve for which the respondent held Certificates of Possession under the Indian Act.

The Supreme Court of Canada held that provincial laws regarding the right of ownership and possession of immovable property cannot apply to Indian reserve lands, as this falls under exclusive federal jurisdiction.

Furthermore, the provincial provisions were not referentially incorporated by section 88 of the Indian Act due to actual conflict with the federal statute.

However, the Court affirmed that the appellant could be awarded compensation in lieu of a division of the reserve properties, as a compensation order does not conflict with the Indian Act.

The parties, members of an Indian Band, separated.

The appellant wife was granted interim possession of the matrimonial home situated on the Band Reserve under section 77 of the provincial Family Relations Act.

The respondent husband had acquired the land by way of a Certificate of Possession under section 20 of the federal Indian Act.

The Supreme Court of Canada held that section 77 of the Family Relations Act is not applicable to a family residence located on Indian reserved lands, as it conflicts with the provisions of the Indian Act.

The appellants, Coast Salish Indians, were convicted of hunting deer out of season contrary to the provincial Wildlife Act.

They argued the deer was killed to obtain raw meat for an ancient religious burning ceremony, and that the hunting prohibition interfered with their freedom of religion and aboriginal rights.

The Supreme Court of Canada dismissed the appeal, holding that the killing of the deer was not itself a religious practice, but merely the motive for the offence.

The Court further held that the Wildlife Act is a law of general application that does not impair the status and capacities of Indians.

The appellant, a non-treaty Indian, was convicted of killing a deer out of season contrary to the British Columbia Wildlife Act.

He argued that the Act impaired his status and capacity as an Indian and thus invaded federal jurisdiction under s. 91(24) of the Constitution Act, 1867.

The Supreme Court of Canada held that the Wildlife Act is a law of general application and applies to the appellant either of its own force or by referential incorporation under s. 88 of the Indian Act.

The appeal was dismissed.

The Musqueam Indian Band surrendered valuable reserve lands to the Crown for lease to a golf club on specific terms approved by the Band.

The Crown subsequently entered into a lease on significantly less favourable terms without consulting the Band.

The Supreme Court of Canada held that the Crown's historical responsibility and the statutory scheme of the Indian Act impose a fiduciary duty on the Crown when dealing with surrendered Indian lands.

The Crown breached this fiduciary duty by ignoring the terms approved by the Band, and the Band was awarded $10 million in damages for the lost opportunity to develop the land.

The appellants, a Metis-white couple, took the respondent's infant daughter into their home and cared for her for several years, becoming her psychological parents.

The natural mother, an Indian woman who had struggled with alcoholism, later sought custody.

The trial judge granted the appellants' application for a de facto adoption, finding it was in the child's best interests.

The Court of Appeal overturned the adoption order.

The Supreme Court of Canada allowed the appeal and reinstated the adoption order, holding that the law focuses on the best interests of the child rather than parental property rights.

The Court emphasized that as the bond with prospective adoptive parents grows closer over time, the significance of cultural background and heritage abates.

The Crown in right of Canada brought an action for possession of lands occupied by the appellant, claiming they were part of an Indian reserve.

The lands had been absolutely surrendered by the Indians to the Crown in 1895 to be sold, but were never disposed of.

The Supreme Court of Canada held that the absolute surrender extinguished the Indian interest and removed the burden of section 91(24) of the Constitution Act, 1867.

Consequently, the beneficial interest in the lands reverted fully to the Province, leaving the federal Crown with no enforceable interest or status to bring the action for possession.

The appeal was allowed and the action dismissed.

The appellant, an illegitimate child of an Indian father and a non-Indian mother, was denied registration under the Indian Act on the basis that section 11(1)(c) applied only to legitimate descendants.

The Supreme Court of Canada allowed the appeal, holding that the plain meaning of section 11(1)(c) does not include a requirement of legitimacy.

The Court declined to read the word 'legitimate' into the provision, finding that the appellant met the criteria as a direct descendant in the male line.

The appellant, a registered Indian living on a reserve, was employed by an Indian corporation located on the reserve.

He was paid on the reserve, but the actual work was performed off the reserve.

He objected to the income tax assessment on his wages, claiming exemption under section 87 of the Indian Act, which exempts the personal property of an Indian situated on a reserve from taxation.

The Supreme Court of Canada held that income is personal property, and a tax on income is a tax in respect of personal property.

Therefore, the appellant's wages were exempt from taxation.

The Minister of Indian Affairs and Northern Development appealed a Federal Court of Appeal decision dismissing an application to review a county court judge's order under the Indian Act.

The county court judge had reversed the Registrar's decision to delete the respondents from a Band List.

The Federal Court of Appeal held it lacked jurisdiction because the county court judge was acting qua judge, not as persona designata, and was therefore excluded from the definition of a federal board, commission or other tribunal under the Federal Court Act.

The Supreme Court of Canada dismissed the appeal, explicitly rejecting the concept of persona designata and holding that whenever a statutory power is conferred upon a s. 96 judge, the power is deemed exercisable in an official capacity unless expressly provided otherwise.

The appellant union applied to the Canada Labour Relations Board for certification as the bargaining agent for employees of the St. Regis Band Council.

The Board granted certification, but the Federal Court of Appeal set it aside on the basis that the Band Council lacked corporate status and was therefore not a 'person' or 'employer' under the Canada Labour Code.

The Supreme Court of Canada allowed the appeal, holding that the Band Council, as a statutory creature of the Indian Act with powers to enact by-laws and hire staff, is a designated body of persons that can be considered an employer within the meaning of the Code.

The appellants challenged the validity of a 1908 surrender of Indian reserve lands by the Enoch Band.

At the surrender meeting, a majority of the eligible male members were present, and a majority of those present voted in favour of the surrender, but the assenting members did not constitute an absolute majority of all eligible male members of the band.

The Supreme Court of Canada held that under section 49(1) of the Indian Act, a valid surrender requires only that a majority of eligible members attend the meeting, and that a majority of those present assent to the surrender.

The appeal was dismissed.

The appellant tribal council appealed a decision holding that the Energy Resources Conservation Board lacked jurisdiction to impose an affirmative action program for native employment as a condition of approving a tar sands project.

The Supreme Court of Canada dismissed the appeal, finding that the Board's statutory mandate was limited to the regulation of energy resources and did not extend to social welfare or affirmative action programs.

While not strictly necessary to decide, several justices noted that such an affirmative action program would not violate provincial human rights legislation.

The appellant, a treaty Indian, was convicted of unlawfully hunting in a wildlife management unit contrary to provincial game laws.

He appealed, arguing that paragraph 12 of the Natural Resources Agreement guaranteed his right to hunt for food on unoccupied Crown lands or lands to which he had a right of access.

The Supreme Court of Canada allowed the appeal, holding that because limited hunting was permitted in the unit at certain times, Indians had a right of access to the land.

Consequently, the province could not unilaterally restrict their constitutionally protected right to hunt for food at all seasons.