Landmark Cases

Section 35 of the Constitution Act, 1982 recognizes and affirms aboriginal and treaty rights, providing constitutional protection to those rights that were in existence when the act came into force on April 17, 1982:

35

  1. The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
  2. In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
  3. For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
  4. Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Recent court decisions have both helped clarify the nature of aboriginal rights and redefined the legal relationship between British Columbia and Aboriginal peoples.

For example, since section 35 provides general protection but does not define or set out particular aboriginal rights, the courts have established tests for proving Aboriginal rights. (Aboriginal rights, which have been recognized in several cases across Canada, are distinct from treaty rights, which flow from particular treaties with various Aboriginal peoples.)

The courts have also determined that the constitutional protection of aboriginal and treaty rights provided by section 35 means that governmental action can only infringe or extinguish aboriginal and treaty rights according to strict legal criteria. The tests for justifying an infringement are set out in the case law on section 35.

The following list directs you to key court cases that deal with current aboriginal and treaty rights issues. The cases listed fall into five categories:

Legend

BCSC - BC Supreme Court
BCCA - BC Court of Appeal
SCC - Supreme Court of Canada
SCR - Supreme Court Reports

The cases referred to are:

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Aboriginal Rights

Because section 35 of the Constitution Act, 1982 provides general protection but does not define or set out particular aboriginal rights, the courts have established tests for proving aboriginal rights. The courts have also established tests for proving aboriginal title (a sub-category of aboriginal rights, which, if proven, provides an Aboriginal people with the right to exclusive use and occupation of the land in question) and for justifying infringements of aboriginal rights.

The following cases deals with these tests:

Treaty Rights

Although the majority of First Nations in Canada have treaties with the federal or federal and provincial governments, British Columbia is unique among Canadian jurisdictions in that it has very few treaties. While there are some 200 Indian bands in British Columbia, there are currently only three sets of treaties:

The rights and territories of treaty First Nations are defined in their treaties. The scope of treaty rights is generally determined by the wording of the treaty but may also be defined by the context in which the treaty was made and other promises made by the Crown.

Existing treaty rights have constitutional protection under section 35 of the Constitution Act, 1982 and cannot be infringed unjustifiably. The courts have applied the justification test to infringements of treaty rights, and government decision-makers consult for potential infringements of treaty rights.

The following cases provide further discussion on treaty rights:

Consultation

The following are recent cases from the British Columbia Supreme Court and British Columbia Court of Appeal that discuss when consultation is necessary and the scope of consultation required:

Jurisdictional Issues

The relationship between federal and provincial authority is very complex. The following discussion provides a very general overview of some key jurisdictional issues.

Federal authority for Aboriginal peoples comes from section 91(24) of the Constitution Act, 1867, which gives the Parliament of Canada the legislative authority over "Indians, and Lands reserved for the Indians." The scope of federal authority is very wide, and includes authority over matters that would otherwise be in the legislative authority of the provinces.

Provincial laws that attempt to regulate Indians in an area of exclusive federal authority are invalid. However, provincial laws that fall short of invading the area of exclusive federal authority may apply to Indians. Provincial laws of general application that do invade the area of exclusive federal jurisdiction may be incorporated into federal law through section 88 of the Indian Act. However, if these general application laws are inconsistent with another federal law, the federal law is paramount.

Under section 109 of the Constitution Act, 1867, http://laws.justice.gc.ca/en/const/c1867_e.html the Province has ownership of the lands of British Columbia. aboriginal title is a burden that rests upon Crown title. All aboriginal rights are under exclusive federal authority and only the federal government has jurisdiction to accept a surrender or to extinguish those rights. However, provinces can infringe aboriginal rights as long as such infringements can be justified under the Sparrow test.

The following cases provide further discussion on the jurisdictional powers of the Federal and Provincial governments with respect to aboriginal issues:

Other Cases