Mark G. Underhill

The applicants applied for judicial review seeking orders in the nature of mandamus, quo warranto, and certiorari related to a forthcoming band council election.

They sought to mandate electronic voting or a community vote and to declare the end of the incumbent council's term.

The Federal Court found no basis for mandamus, as the election had been scheduled according to the Custom Election Code, which did not permit electronic voting.

The Court also held that the term of office under the Code provided for a 30-day extension after the posting of election results, dismissing the request for quo warranto.

The appellant Crown appealed acquittals of the respondent, a United States citizen and member of the Lakes Tribe of the Colville Confederated Tribes, who was charged under British Columbia wildlife legislation after hunting elk in the traditional Sinixt territory in British Columbia.

The majority held that on a purposive interpretation of s. 35(1) of the Constitution Act, 1982, the expression 'aboriginal peoples of Canada' includes the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, even if those groups are now located outside Canada.

Applying the Van der Peet test, the Court found the respondent was exercising a constitutionally protected Aboriginal right to hunt for food, social and ceremonial purposes within the Sinixt ancestral territory in British Columbia.

The Crown's appeal was dismissed, with Moldaver and Côté JJ. dissenting on the grounds that s. 35(1) does not extend to Aboriginal groups located outside Canada and, in any event, that continuity had not been established.

The applicant First Nation sought an interlocutory injunction to prevent the Minister of Fisheries and Oceans from opening a commercial spawn-on-kelp herring fishery in Area 10 pending a judicial review.

The applicant argued that the herring stocks were in decline and that opening the fishery would violate their traditional laws, disrupt reconciliation, and harm the resource.

The Federal Court dismissed the motion, finding that while there was a serious issue to be tried, the applicant failed to present clear, non-speculative evidence of irreparable harm to the herring stocks or to reconciliation.

The Court further held that the balance of convenience favoured the Minister's statutory duty to manage the fisheries in the public interest.

The appellant transit authorities refused to post the respondents' political advertisements on the sides of their buses, citing policies that permitted commercial but not political advertising.

The respondents challenged the policies under s. 2(b) of the Charter.

The Supreme Court of Canada held that the transit authorities are government entities subject to the Charter.

The Court found that the sides of buses are public places where expressive activity is protected, and the policies infringed the respondents' freedom of expression.

The infringement was not justified under s. 1 of the Charter because the blanket ban on political advertising did not minimally impair the right.

The policies were declared of no force or effect under s. 52(1) of the Constitution Act, 1982.

Appeal in a major Aboriginal title claim involving hereditary chiefs asserting rights over a large area of British Columbia.

The Court held that Aboriginal title is a sui generis right in land protected by s. 35(1), conferring exclusive use and occupation for a variety of purposes subject to an inherent limit against uses irreconcilable with the group’s attachment to the land.

The Court also held that oral histories must be given due weight in Aboriginal litigation and that the trial judge erred in his treatment of such evidence, requiring a new trial.

On the cross-appeal, the Court held that the province lacked constitutional authority after 1871 to extinguish Aboriginal rights, either directly or through s. 88 of the Indian Act.