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.
Test:
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.