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
Nishga claimed 1000 sq. miles in NW B.C.
Judson & 2: no title for Aboriginals. They are wards of state
Laskin & 2: Model III: Usufructuary rights.
Pigeon: Nishga can’t sue without crown’s permission
Issue: Sparrow was fishing with drift net too big for regulations
Regulated rights are not extinguished, therefore still exist under
Valid regulation must be justified as honouring trusteeship duty.
1) Does impugned regulation interfere with aboriginal right?
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
L’Heureux-Dube: send Van der Peet back for new trial.
McLaughlin: set aside conviction.
Issue: Gitksan and Wet’suwet’en claimed 58,000 sq. km. of land in
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:
3) what aboriginal title is protected by 35(1), and is infringement
4) can Gitksan and Wet’suwet’en claim self-government?
5) has aboriginal title been extinguished?
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
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.