Arthur Pape

The Little Salmon/Carmacks First Nation entered into a modern comprehensive land claims agreement with the federal and territorial governments.

Under the treaty, members have a right of access for hunting and fishing for subsistence in their traditional territory.

A non-Aboriginal resident applied for an agricultural land grant within this territory, which was approved by the territorial government.

The First Nation sought judicial review, arguing the government failed to consult and accommodate them.

The Supreme Court of Canada held that the Crown has a duty to consult Aboriginal peoples before making decisions that might adversely affect their treaty rights, even in the context of a modern comprehensive land claims agreement.

However, on the facts of this case, the duty to consult was at the lower end of the spectrum and was discharged by the government.

There was no duty to accommodate.

The Province of British Columbia granted a project approval certificate to a mining company to reopen a mine, which included building an access road through the traditional territory of the Taku River Tlingit First Nation (TRTFN).

The TRTFN objected, arguing their unproven Aboriginal rights and title claims were not adequately accommodated.

The Supreme Court of Canada held that the Crown has a duty to consult and, where indicated, accommodate Aboriginal peoples prior to proof of rights or title claims, grounded in the honour of the Crown.

However, the Court found that the environmental assessment process engaged in by the Province fulfilled this duty, as the TRTFN was consulted and its concerns were reasonably accommodated in the project approval conditions.

The respondents, members of a Métis community near Sault Ste.

Marie, were charged with hunting a moose without a licence and possessing game in contravention of the Game and Fish Act.

They argued they had an aboriginal right to hunt for food under s. 35 of the Constitution Act, 1982.

The Supreme Court of Canada modified the Van der Peet test to account for the post-contact ethnogenesis of the Métis, establishing a pre-control test.

The Court found that the Sault Ste.

Marie Métis community had a historically continuous practice of subsistence hunting, and the respondents were accepted members of this community.

The provincial hunting regulations unjustifiably infringed their aboriginal right to hunt for food.

The respondents, who are Métis, shot and killed a bull moose without a licence and were charged under the Game and Fish Act.

They claimed an aboriginal right to hunt for food under s. 35 of the Constitution Act, 1982.

The trial judge and the Superior Court judge found that the respondents had an aboriginal right to hunt for food that was infringed by the Act, and that the infringement was not justified.

The Court of Appeal dismissed the Crown's appeal, holding that the Van der Peet test must be modified for Métis claims to account for their post-contact ethnogenesis.

The Court found that hunting was an integral practice of the historic Métis community at Sault Ste.

Marie, that a contemporary community exists in continuity with the historic one, and that the respondents are members.

The infringement was not justified, but the Court granted a one-year stay of the judgment to allow the government to develop a new regulatory regime.

The appellants, members of the Shawanaga and Eagle Lake First Nations, were convicted of gambling-related offences under the Criminal Code for conducting high stakes bingo and other gambling activities on their reserves.

They appealed, arguing that their activities were protected by an inherent aboriginal right to self-government under s. 35(1) of the Constitution Act, 1982, which included the right to regulate gambling.

The Supreme Court of Canada applied the Van der Peet test and held that the claimed right must be characterized as the right to participate in and regulate gambling activities.

The Court dismissed the appeal, finding no evidence that gambling or its regulation was an integral part of the distinctive cultures of the First Nations at the time of contact.

The Beaver Band surrendered the mineral rights on its reserve to the Crown in 1940 to lease for its benefit.

In 1945, the Band surrendered the reserve to the Crown to sell or lease.

The Crown subsequently sold the land to the Director of The Veterans' Land Act, inadvertently including the mineral rights.

The Supreme Court of Canada held that the Crown did not breach its fiduciary duty regarding the surrender and sale of the surface rights.

However, the Crown breached its fiduciary duty by transferring the mineral rights and failing to correct the error when it learned of it.

The action was not barred by limitation periods as the running of time was postponed until the Band discovered the facts.

The appellant Indian bands enacted property tax assessment by-laws under the Indian Act, which included appeal procedures to band-appointed tribunals.

The respondents, who owned a railway right-of-way through the reserves, sought judicial review to challenge the assessments, arguing their lands were not 'in the reserve'.

The motions judge struck the judicial review application, finding the band appeal procedures provided an adequate alternative remedy.

The Supreme Court of Canada dismissed the bands' appeal, holding that the band tribunals lacked sufficient institutional independence (due to lack of financial security and security of tenure), and therefore did not constitute an adequate alternative remedy, allowing the judicial review to proceed.

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 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.