[MUSIC] Since 1973, a number of key court cases have recognized Aboriginal title and other rights to land and resources. These cases have set the terms of engagement between the Crown and Indigenous peoples around subsistence harvesting and access to, and development of, land. Here, we give four examples of some of the most prominent Canadian legal cases. Before we do so however, it is important to provide a little background on Aboriginal title. Aboriginal title refers to the right that Indigenous peoples have to land, as opposed to mere privileges to certain practices such as hunting and fishing. Canadian law has recognized Aboriginal title as a unique right held by constitutionally recognized Aboriginal peoples over the use and jurisdiction over specific parcels of land. Like all Aboriginal rights, Aboriginal title is an inherent right. This means that it exists because Indigenous peoples have occupied and used their territories since time immemorial, according to their own legal systems. Thus, Aboriginal rights are not granted by the Canadian state, but recognized and affirmed by it. The Calder case, was a landmark case led by Frank Calder and other Nisga'a Elders. They sued the Government of British Columbia, claiming that title to their lands had never been extinguished by treaty or any other means. The B.C. Court of Appeal rejected the claim. However, the appeal to the B.C. Supreme Court ruled that Aboriginal title to land had existed at the time of the Royal Proclamation in 1763. The court further found that First Nation's claim to title did not have to find their source in the Royal Proclamation. This finding effectively overturned law that had existed since 1888 when the Judicial Committee of the Privy Council, one of the highest courts in the United Kingdom, affirmed a ruling by the Supreme Court of Canada. The Privy Council affirmed, that Aboriginal title existed at the goodwill of the Crown, as was evidenced by the Crown setting aside Aboriginal hunting territories in the Royal Proclamation in 1763. The ruling in Calder held that Indian title was rooted in occupation, position, and land use. Specifically, Indian title was a legal right, independent of any form of enactment, and rooted in Aboriginal peoples’ historic occupation, possession and use of traditional territories. As such, title existed at the time of first contact with Europeans, whether or not it was recognized by them. This was a significant improvement in the law, but the Supreme Court also indicated that the Crown could extinguish Aboriginal title. In 1956, the Musqueam Indian Band was approached by the Department of Indian Affairs, to get consent for the lease of reserved lands to a golf course. The band was told that they would receive revenue from the lease, and agreed to the deal. After the agreement was made, the DIA went back to the golf course and renegotiated very different terms than what Musqueam had agreed to. These changes were kept from the band for 12 years. When the band found out what had happened, they began looking for a lawyer to take on the case. The case was finally filed in 1975, and went through three courts before a ruling in favour of Musqueam resulted in the compensation of $10 million to the band. The government appealed the ruling, and compensation was withheld. The band then appealed to the Supreme Court. In 1984, the Supreme Court ruled that the Crown did not fulfill its fiduciary duty to the band. Fiduciary duty is the responsibility that the government has to act in the best interest and in a trust-like relationship with Indigenous peoples. Future Aboriginal rights cases and the protection of Aboriginal rights has been subsequently influenced by the concept of fiduciary duty as set out in this case. The Sparrow Case was another precedent setting court ruling by the Supreme Court of Canada. It determined the criteria for proving the existence of an Aboriginal right, and whether or not government infringement of Aboriginal rights was justifiable. It is important to understand that Section 35(1) of the Constitutional Act of 1982 granted an additional constitutional layer of protection to Aboriginal rights over and above any recognition by the Canadian common law. Infringement means that the government is impacting these constitutionally protected rights. Violating constitutional rights is not a light matter and the government must prove that it is absolutely necessary. The Sparrow test includes the criteria for both proving an Aboriginal right and justifying an infringement. In 1984, Musqueam band member, Ronald Sparrow, was caught fishing with an illegal net and was arrested for fishing with a net longer than his subsistence fishing license permitted. The band went to court to defend Sparrow and outlined five main arguments. (1) the band retained the right to fish on territories they had inhabited and fished on for centuries; (2) Musqueam's rights to land and resources had never been extinguished by a treaty; (3) Section 35 of the Constitution Act of 1982 reinforced Musqueam's right to fish; (4) that any infringement on Aboriginal fishing rights was invalid unless justified as being a measure of conservation, and; (5) that a restriction on the net length infringed upon Musqueam's fishing rights and was not justified by reason of conservation. After initially losing, the band appealed, and the Supreme Court of Canada, eventually heard the case in 1988. In 1990, the Supreme Court ruled that at the time of his arrest, Sparrow had an existing right to fish. Specifically, prior to the 1982 Constitution, the Aboriginal right to fish had not been extinguished. In the final Supreme Court decision, the justices argued that while "Section 35(1) does not promise immunity from government regulation in contemporary society, it does hold the Crown to a substantive promise". In this case, there was a government onus to prove extinguishment of Aboriginal rights. In addition, the case required the government to justify any legislation that infringed on any Aboriginal right protected under Section 35(1). The Sparrow test allows the Crown to infringe upon existing Aboriginal rights, provided that its actions are consistent with the fiduciary relationship with Aboriginal peoples and that certain conditions are met. An Aboriginal right may be infringed upon if: (1) the infringement serves a valid Legislative objective, such as the conservation of natural resources; (2) there has been as little infringement as possible to meet the government's goal; (3) fair compensation was provided, and; (4) Aboriginal groups were consulted, or at the very least, informed. Sparrow did not set out clear guidelines for identifying the nature of an Aboriginal right. This was determined in a case called Van der Peet in 1996, that also involved fishing rights in B.C. The Van der Peet Case outcome helps determine if an Aboriginal right exists first by characterizing the right. To understand the nature of the claim, the court will look at the actions of Aboriginal peoples and the nature of the Crown legislation that gave rise to the dispute. The purpose is to identify a particular activity, custom, or tradition. Once the right is properly characterized, the Aboriginal litigant is responsible for showing that the right is integral to their distinctive culture. Finally, the court will ask if there was a continuity between the claimed right and the pre-contact practice upon which it is based. In most of British Columbia, neither historical nor contemporary treaties were ever signed with First Nations. Exceptions include the historical treaties, Treaty 8 in north eastern British Columbia and the Douglas Treaties on Vancouver Island, and the modern agreements including the Tsawwassen Treaty and the Nisga'a Final Agreement. This is important because the Canadian Constitution states, that the Crown can only acquire a land from First Nations through treaty making. Otherwise, First Nations are not to be disturbed in their use of the land. In 1984, a group of Gitksan and Wet'suwet'en hereditary chiefs claimed ownership of and jurisdiction over 58,000 square kilometres in British Columbia, an area which encompassed traditional territories of the Wet'suwet'en peoples and much of that of the Gitksan. They argue that since they had not signed treaty, they'd never given up their rights. As governments usually do, the provincial government of British Columbia argued for exclusive ownership of the contested territories. They ask the court for a declaration that the Gitksan and Wet'suwet'en had no rights to the territory. The case, at the time the largest in Canadian legal history, was eventually heard by the Supreme Court. When they handed down their decision, they made no decision on whether Gitksan or Wet'suwet'en had Aboriginal title, indicating that a new trial must be held. However, although the land claim was not decided, the Delgamuukw court made a number of significant statements about Aboriginal title to guide future courts in shaping how future cases might be approached. Delgamuukw acknowledged that Aboriginal title is a communal right based on First Nations’ cultural relationship to the land. The Supreme Court also stated that not enough consideration of the First Nations oral histories was given in the first trial, raising its status as a legitimate form of legal evidence. The framework established in the Delgamuukw Judgement was relied upon to establish a right to Aboriginal title in 2014. In a case called Tsilhqot'in Nation vs. British Columbia, the Supreme Court of Canada declared that the Tsilhqot'in had title to an area of land approximately 1,600 square kilometres. The declaration, the first of it's kind in Canada, comprised 40% of the area claimed by the Tsilhqot'in in that case. Achieving the first declaration of Aboriginal title and, at the same time, having 60% of its claim rejected serves to illustrate both the potential and the significant risks to First Nations peoples when pursuing rights through Canadian law. [MUSIC]
