The progress of Indigenous peoples in Canada has been fought in the face of colonization, discriminatory laws, and many provincial and Federal hurdles. While change has been incremental, landmark cases have expanded aboriginal rights.
It’s difficult to choose the most significant Indigenous law cases in Canada’s recent history. But these three landmark court decisions established important precedents and reshaped rights related to land title, the history of discrimination against native peoples in our criminal justice system, and the duty to consult Aboriginal groups.
Calder et al. v. Attorney General of British Columbia (AG) [1973] S.C.R. 313.
Calder was a ground-breaking case on Aboriginal Title. In 1967, Frank Calder and other Nisga’a elders sued British Columbia declaring the Nisga’a title had never been lawfully extinguished through treaty or by any other means.
Frank Calder took action in the face of the newly created White Papers which outlined Canada’s attempt to eliminate the special status Canada’s Indigenous peoples had and denied the concept that they had “inherent rights,” including land title. Calder, the first status Indian elected to the Canadian legislature, led the action against British Columbia to determine that the aboriginal title to more than 2,500 square kilometres in and around the Nass River Valley was still legally valid, and that “their ancient tribal territory… has never been lawfully extinguished.”
The claim was rejected in both the BC Supreme and Appeals Courts with both courts dismissing the existence of Aboriginal title. The Nisga’a appealed. In 1973, the Supreme Court of Canada ruled Aboriginal title existed at the time of the Royal Proclamation of 1763. This was the first time that Aboriginal title was acknowledged by the Court as having existed before colonization and thus also acknowledged that such title existed outside of, and was not simply derived from, colonial law.
While the Nisga’a did not win their case (the Court split 3-3 on whether Nisga’a aboriginal title had been extinguished and the 7th judge dismissed the case on a technicality), the case laid the groundwork for the Federal Government’s Comprehensive Claims process and the eventual adoption of the ground-breaking Nisga’a Treaty. This was the first contemporary land claims agreement in British Columbia, giving hope to other bands across Canada. Future cases, such as R. v. Sparrow and Delgamuukw v. British Columbia, set further aboriginal rights and title precedents.
R v. Gladue, [1999] 1 S.C.R. 688
R v. Gladue clarified the role of the courts in addressing the historical and current problem of the over-representation of Indigenous people within the criminal justice system. The decision examined how courts should approach sentencing in light of the Criminal Code provision introduced in 1994 which made clear Parliament’s intention to alleviate the higher rate of incarceration for Indigenous offenders and to implement restorative justice. Section 718.2(e) of Canada’s Criminal Code provides: “all available sanctions, other than imprisonment… should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”
In this case, Jamie Tanis Gladue pleaded guilty to manslaughter for the killing of her common-law husband. The court sentenced her to three years in prison and in its decision noted that s. 718(e) of the Criminal Code did not apply as, at the time of the murder, Ms. Gladue was not living on reserve. Although the sentence was ultimately upheld on appeal to the Supreme Court, the country’s highest court clarified the purpose and intent of s.718(e). Instead of incarceration, a court may consider restorative justice practices, where agreed to by the offender and based on community beliefs. These practices may involve the use of a healing circle, for instance, and such approaches may help to heal historic injustices. These measures do not constitute a rejection of Criminal Code sentencing but rather, Indigenous communities may, where appropriate, choose the remedial action.
In their decision, the Supreme Court of Canada made it clear that the trial judge had approached s.718.2(e) too narrowly. Judges may not excuse an Indigenous offender from consideration based on residence. A judge must consider an Indigenous community in a broad sense and apply this section to “all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area.”
The Gladue principle was reaffirmed and expanded in R. v. Ipeelee, where the Supreme Court stated the sentencing judge has a statutory duty imposed by s. 718(e) to consider the unique circumstances of aboriginal offenders and the failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation warranting appellate intervention.
Gladue led to the development of both “Gladue Courts”, legal systems tailored to Indigenous peoples and “Gladue Reports”, which are personal histories outlining mitigating factors to consider in sentencing.
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511
The Supreme Court’s decision in Haida Nation is a seminal decision on the Crown’s duty to consult Aboriginal peoples. In its decision, the SCC held first that asserted aboriginal rights can trigger the government’s obligation to consult. This duty arises when the government knows about or ought to know about the potential existence of an aboriginal right or title and contemplates a decision that might affect it. The SCC’s decision thereby alleviated the previous burden on aboriginal groups to prove the existence of rights before the duty to consult arises. Second, the SCC did not attempt to define how much consultation would be required. Rather the Court held the scope of the duty to consult would be proportionate to the strength of the claim supporting the existence of the right or title and, to the seriousness of the potentially adverse effect of the proposed decision. In the 7-0 unanimous decision, the Supreme Court held: “the government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honour of the Crown, which must be understood generously.”
While the dispute between Haida Nation and British Columbia has a robust history, this action was initiated when the province authorized a transfer of a tree farm license to Weyerhauser in 1999 over an area on the archipelago of Haida Gwaii, over which the Haida Nation claimed title. These actions were performed unilaterally, without consent from or consultation with the Haida Nation. The potentially impacted area contained old-growth forest that was culturally important to the Haida people. Additionally, they wanted to protect the forest from clear-cutting and the effects it would have on the surrounding land, watershed, and wildlife. The Haida Nation had asserted its aboriginal rights and title claims but had not proven them through either treaty or litigation. Haida challenged the Provincial issuance of the license, asserting aboriginal rights and title to the lands and resources affected and claimed that the decisions related to the license were made without their consent and over their objections.
While the courts initially dismissed the petition, finding that the government had a moral duty to negotiate with the Haida rather than a legal one, the Court of Appeals reversed this decision and agreed with the First Nation that the Province should have consulted with them even though they had not proven their claims regarding aboriginal rights and title. The Court of Appeal held that Weyerhauser shared the Province’s duty to consult. The BC Court of Appeal’s decision was appealed to the SCC.
The Supreme Court settled the controversial issue on who shouldered the duty to consult and made it clear that the duty to consult is not shared by industry, holding that the “ultimate legal responsibility for consultation and accommodation rests with the Crown and cannot be delegated.” However, the SCC also made clear, it is open to governments to delegate the “procedural aspects” of consultation to third parties.
The SCC distinguished between the duty to consult and the duty to accommodate. Where there is a strong prima facie case for the claim and the adverse effects of the Crown’s actions impact the community in a significant way, the Crown may be required to accommodate. This may require taking steps to avoid irreparable harm or minimize the effects of the infringement. Each case will be determined on its own set of facts with reference to the strength of the asserted right and the potential adverse impact on those rights; and in every case, regardless of what the scope of the duty is determined to be, consultation must always be meaningful.
Haida underscored the need for reconciliation and negotiated solutions to outstanding aboriginal title and treaty rights disputes. Aboriginal people are entitled to have a clear voice every time a Crown decision potentially impacts the use and disposition of traditional lands and resources or their social and cultural well-being.
