Aboriginal Rights Cases
Flanagan’s models of aboriginal sovereignty
I:  complete sovereignty, and it’s  not given up
II:  Aboriginal concepts do not count, therefore no sovereignty
III:  Usufructuary rights
Relevant constitutional provisions
91(24) of CA 1867
s. 25 of Charter
s.35(1) of CA 1982

Calder (1973)

Nishga claimed 1000 sq. miles in NW B.C.
Judson & 2: no title for Aboriginals.  They are wards of state (Mod II)
Laskin & 2:  Model III:  Usufructuary rights.
Pigeon:  Nishga can’t sue without crown’s permission

Sparrow (1990)

Issue:  Sparrow was fishing with drift net too big for regulations
Court’s Decision:
Regulated rights are not extinguished, therefore still exist under 35(1).
Valid regulation must be justified as honouring trusteeship duty.
1) Does impugned regulation interfere with aboriginal right?
2) Justification:
Is the legislative objective valid?
Is trustee relationship honoured?
Is infringement as little as necessary?
If expropriation, is compensation fair?
Have aboriginals been consulted?

Van der Peet  (1996)

Issue:  Is selling fish protected by s. 35(1)?
Supreme Court majority:  NO
for a practice to be protected by 35(1), it must be integral to the aboriginal culture, and exist prior to European contact.
L’Heureux-Dube and McLaughlin dissented:
Practice must exist for a substantial period either before or after contact.
L’Heureux-Dube:  send Van der Peet back for new trial.
McLaughlin:  set aside conviction.

Delgammukw (1997)

Issue:  Gitksan and Wet’suwet’en claimed 58,000 sq. km. of land in northern B.C.
Questions to be resolved:
1) whether the claims were properly before the court.  Yes, but new trial required.
2) whether the SCC can interfere with the trial judge’s factual findings:  Yes.
3) what aboriginal title is protected by 35(1), and is infringement acceptable?
4) can Gitksan and Wet’suwet’en claim self-government?
5) has aboriginal title been extinguished?

Marshall (1999)

First case:  Sept 17
Issue:  status of 1760-61 treaties guaranteeing ability to trade through truck houses.
How important is extrinsic evidence about Mi’kmaq understanding of the treaty?
Majority: Mi’kmaq understanding of treaty must be respected.
Dissenting:  Evidence of Mi’kmaq view supports Crown’s arguments.
Second case:  Nov 17
Motion for rehearing rejected.  Governments can regulate.