Table 1. Major documents related to Canadian Aboriginal law.


International Agreements ratified by Canada

International Convention on the Elimination of All Forms of Racial Discrimination 1970 (Office of the United Nations High Commissioner for Human Rights 1969) The Convention requires all signatory states to “take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.” In the view of many First Nations, the policy that Aboriginal title needs to be proved violates the requirements of this convention (First Nations Leadership Council 2007). Examples of cases dealing with racial discrimination of Aboriginal peoples include McKinnon v. Ontario 2004 (Hadibhai 2004) and Frank v. A.J.R. Enterprises Ltd. 1993 (Ontario Human Rights Commission 2001).

International Covenant on Civil and Political Rights 1976 Office of the United Nations High Commissioner for Human Rights 1976a); International Covenant on Economic, Social and Cultural Rights 1976 (Office of the United Nations High Commissioner for Human Rights 1976b)

Article 1 of the Covenants demands self-determination of all peoples, which applies to the determination of the political and institutional status and the pursuit of economic, social, and cultural development. Although official Canadian reports to the United Nations do not include discussion of Article 1 (Government of Canada 2004), First Nations have focused on the need to establish Aboriginal governments and to develop an independent legal system to regulate land, resources, and culture, which falls under the notion of Article 1.

UN Convention on Biological Diversity 1992 (Secretariat of the Convention on Biological Diversity 1993) Article 8(j) requires respecting, preserving, and maintaining “knowledge, innovations, and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.” The Article further demands “approval and involvement of the holders of such knowledge, innovations and practices” and suggests fair sharing of the benefits arising from the utilization of such knowledge.

Federal Legislation

Royal Proclamation 1763 (Virtual Law Office 1998) Treaties between the British Crown and Aboriginal peoples are a method of extinguishing Aboriginal title to the land. The Crown has fiduciary duty for the land under the treaty.

Constitution Act 1867 (Canadian Legal Information Institute 1867) Canadian Confederation deals with, and has obligation to legislate on, matters of Aboriginal peoples and “land reserved for Indians.”

Constitution Act 1982, Section 35 (Canadian Legal Information Institute 1982) The section recognized and affirms existing Aboriginal and treaty rights. The Section applies to all Aboriginal people, including Metis, as was upheld in Powley, SCC 2003 (Canadian Legal Information Institute 2003).

Indian Act 1985 (Canadian Legal Information Institute 1985) Provides rules on Indian status and management of reserve lands. Although the Act presents some provisions for local governance and communal collection of monies, it has so far failed to address the issue of self-government.

Court Cases

Jim 1915 26 C.C.C. 236 (Resources for Aboriginal Studies 2006) Hunting and fishing on reserves are regulated by federal, rather than provincial, legislation.

Calder [1973] S.C.R. 313, [1973] 4 W.W.R. (Canadian Legal Information Institute 1973) The Supreme Court held that Aboriginal title exists as a concept of common law. It is based on the “long-time occupation, possession and use” of traditional territories.

Kruger and Manuel [1978] 1 S.C.R. 104. (Canadian Legal Information Institute 1978)

Provincial Wildlife Act is applicable to Aboriginals hunting outside the reserve by referential incorporation under s. 88 of the Indian Act.

Haines [1981] 495 BCCA (Canadian Legal Information Institute 1981) The right to hunt is not extinguished. Hunting can happen at times outside the designated seasons.

Guerin [1984] 2 S.C.R. 335 (Canadian Legal Information Institute 1984) Confirmed “fiduciary responsibility ”of the Crown for Aboriginal peoples, and recognized pre-existing aboriginal rights on-reserve and off-reserve.

Dick v. the Queen [1985] 2 S.C.R. 309 (Canadian Legal Information Institute 1985) The Supreme Court of Canada upheld the decision in Kruger 1976 that the Provincial Wildlife Act is applicable to Aboriginals, and that they need hunting permits, as required by the Act.

Sparrow [1990] 1 S.C.R. 1075 (Canadian Legal Information Institute 1990) Traditional activities can be performed in a modern manner. The Crown is responsible for proving that the infringement on those rights serve a “valid legislative objective.”

Van der Peet [1996] 2 S.C.R. 507 (Canadian Legal Information Institute 1996)

Used as a test as to whether the identified right constitutes an essential, integral part of Aboriginal identity.

Delgamuukw [1997] 3 S.C.R. 1010 (Canadian Legal Information Institute 1997) The case distinguished between Aboriginal rights and title. Title represents a connection between the First Nation and the land. Aboriginal rights and title can be proved, and the proof can include oral sources. Infringement of Aboriginal rights can be compensated.

Halfway River First Nation 1999 BCCA 470 (Canadian Legal Information Institute 1999)

The Aboriginal side also has a duty to consult, and it is prohibited to impose unreasonable conditions or refuse to consult.

Kitkatla Band 2002 SCC 31, [2002] 2 S.C.R. 146 (Canadian Legal Information Institute 2002) The Supreme Court of Canada decided that Provinces can legislate acts of destruction of heritage sites, if the acts do not affect the “core of Indianness.”

Haida 2004 SCC 73, [2004] 3 S.C.R. 511 (Canadian Legal Information Institute 2004a) and Taku 2004 SCC 74, [2004] 3 S.C.R. 550 (Canadian Legal Information Institute 2004b) These cases oblige the Crown to consult and possibly accommodate Aboriginal interests even where title has not been proven. Third parties are exempt from the duty to consult, but may be delegated some “procedural” aspects. Other cases that followed the Haida 2004 decision include: Gitanyow BCSC 2004 (Canadian Legal Information Institute 2004c), Tzeachten FC 2008 (Canadian Legal Information Institute 2008a), Klahoose BCSC 2008 (Canadian Legal Information Institute 2008b), Carrier Sekani Tribal Council BCCA 2009 (Canadian Legal Information Institute 2009a), and Kwikwetlem First Nation BCCA 2009 (Canadian Legal Information Institute 2009b).

Marshall and Bernard 2005 SCC 43, [2005] 2 S.C.R. 220 (Canadian Legal Information Institute 2005a) This case sets limits to Aboriginal title: title requires evidence of exclusive and regular use of land for traditional activities. New activities are not protected by treaties. Claims of Aboriginal title are specific to the Aboriginal group and their relationship with the land.

Mikisew Cree Nation 2005 SCC 69, [2005] 3 S.C.R. 388 (Canadian Legal Information Institute 2005b)

Existing treaty rights are included in the Crown obligation to consult and accommodate Aboriginal interests.

Huu-ay-aht 2005 BCSC 697 (Canadian Legal Information Institute 2005c)

The Supreme Court of Canada ordered the Province to consult in good faith, which does not allow for a decision made by a population-based approach. The approach based on the Nation's population used in the Forest and Range Agreements failed to account for the individual nature of the claim.

Morris 2006 SCC 59, [2006] 2 S.C.R. 915 (Canadian Legal Information Institute 2006a)

The Supreme Court of Canada decided that the Provincial Wildlife Act cannot preclude the traditional way of hunting that constitutes a treaty right.

Gray and Sappier 2006 SCC 54, [2006] 2 S.C.R. 686 (Canadian Legal Information Institute 2006b)

The Supreme Court of Canada held that Aboriginal people can harvest timber on the traditional territory for domestic purposes.

Dene Tha’ 2006 FC 1354 (Canadian Legal Information Institute 2006c) The Federal Court of Appeal held that the Crown has a duty to consult with First Nations when establishing environmental and regulatory review processes. The duty to consult arises when the Crown possesses constructive and actual knowledge of an Aboriginal or treaty right that might be adversely affected by a planned activity.

Tsilhqot’in First Nation (“Xeni”) 2007 BCSC 1700 (British Columbia Courts 2007) This case demonstrated the type and degree of evidence sufficient to prove the existence of Aboriginal title to a large tract of land a First Nation claimed belonged to them.