Major Case Summaries: Building on UBC Indigenous Foundations Blog

Building on the work of UBC’s Indigenous Foundations initiative and hoping to fill in more recent gaps, the following case summaries will provide a comprehensive overview of various legal cases and legislation that relates to Aboriginal Peoples and the law within Canada. Case summaries aim to summarize the relevant facts, legal reasoning, and outcome a legal decision.

This particular set of cases is meant to be read alongside UBC Indigenous Foundations Case Summaries found here.

R v Pamajewon, [1996] 2 SCR 821

Delivered just one day after R v Van der Peet, the Pamajewon case focuses on whether the specific Aboriginal right to self-government exists under section 35 of the Constitution Act, 1982.

The case involves members of two First Nations in Ontario who argued that their inherent right to self-government allows them to pass laws related to gambling. Howard Pamajewon and Roger Jones, members of the Shawanaga First Nation in Ontario, were charged for keeping a common gaming house under the Criminal Code. The charges came from gambling and other betting activities happening on reserve. The case also involved Arnold Gardner, Jack Pitchenese, and Allan Gardner, members of the Eagle Lake First Nation in Ontario, who were charged criminally for allowing property to be gambled through bingo games.

Under section 81 of the Indian Act, band councils can only pass by-laws related to specific listed purposes. Both First Nations band councils passed lottery laws that fell outside of this list. They were found guilty at both the trial court and the court of appeal. Both groups argued that they passed these laws pursuant to a broad inherent right to self-government over reserve lands under section 35(1) of the Constitution Act, 1982.

The Supreme Court turned to the recently decided Van der Peet test to frame whether this right exists. Instead of framing the activity as the broad right to use and manage reserve lands, the Court decided the right that had to be proved was specifically the right to high stakes gambling. The Court then went on to see if this was “integral to the distinctive culture” before European contact. They concluded that, while Ojibwa People did gamble pre-contact, high-stakes gambling was not integral and upheld the decisions of the lower courts.

One significant feature of this case is that the Supreme Court left refused to say whether the right to self-government exists, both leaving open the possibility and perpetuating its legal uncertainty. Despite this, many similar flaws from the Van der Peet test apply here. Critics argue that the right to self-government is inherently different from rights to sell fish or hunt and that, by fragmenting the right to self-government into smaller components, Indigenous groups will be forced to fight for their rights in a piecemeal fashion [1]. Other critics propose that the Supreme Court’s specificity requirement stems from a problematic belief that Aboriginal rights are “extra” or special entitlements against the problematic assumption of Crown sovereignty, which requires applicants to prove small individual rights rather than challenging larger issues of reconciliation [2].

Resources

[1] Kent McNeil, “The Jurisdiction of Inherent Right Aboriginal Governments: Research Paper for the National Centre for First Nations Governance” (2007)

[2] Karen Drake, “R v Pamajewon” in Kent McNeil & Naiomi Metallic, eds, Judicial Tales Retold: Reimagining Indigenous Rights Jurisprudence (Saskatoon: Indigenous Law Centre, 2021).

R v Pamajewon, [1996] 2 SCR 821. Available online: scc-csc.lexum.com/scc-csc/scc-csc/en/item/1411/index.do

Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257

Tsilhqot’in Nation v BC was the first judgement where the Supreme Court found that a group had Aboriginal title and rights over a specific portion of their lands. The case clarified previous tests and established new interpretative approaches for title claims.

The Province of British Columbia issued a licence to clear-cut a remote area of land without consulting the Xeni Gwet'in community, who claimed the land and are part of the broader Tŝilhqot'in Nation. The band resisted the project through protests and blockades, eventually applying for a title claim to the land in question. At the trial court, they were successful in proving title, but a declaration was not granted due to a procedural error. The appeal court did not find a sufficient claim to title.

The Supreme Court took the opportunity to summarise the developments in Aboriginal case law, including the test for title set out in Delgamuukw. The test requires that prior occupation was sufficient, continuous, and exclusive. The Xeni Gwet’in were semi-nomadic peoples. The approach by the Court of Appeal for sufficient occupation was narrow and strict; it ignored the Xeni Gwet’in way of nomadic ways living by seeking to create isolated “islands” of land with title surrounded by a sea of Crown sovereignty. The Supreme Court held that the factors of the test must be considered together alongside the Aboriginal perspective to translate pre-contact rights into modern ones.

The test clarifies that Aboriginal title includes various rights similar to ownership held by the collective, including “the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”

The Supreme Court emphasized that in title cases there exists a requirement on the Crown to consult and accommodate, similar to the test laid out in the Haida case. However, they uphold the infringement justification test from the Sparrow case, which allows governments to infringe on title if there is a “compelling and substantial objective” and the use is not inconsistent with the fiduciary duty of the Crown. An example of a compelling and substantial objective could be  conservation, and the fiduciary duty would mean that the Crown must act in good faith and disclosure with the impacted Aboriginal group.

This case created a five-part test for infringement justification:

1. The Crown must fulfil its duty to consult and accommodate;

2. There must be a “compelling and substantial” government objective;

3. There must be a “rational connection” between the infringement and the government objective;

4. The infringement must minimally impair the Aboriginal title in question; and

5. The courts must weigh the proportionality between the infringement and the impact on the Aboriginal rights holders.

Critics have challenged the Supreme Court’s perspective in this case that Aboriginal title is a unique right that is not the same as ownership or sovereignty because that treats it as a lesser interest in the land [3]. Other scholars believe that Aboriginal title has more in common with provincial title than with private ownership regimes and should be considered through this lens [4].

In this case, the Supreme Court did reject that Canada gained automatic sovereignty when explorers encountered an “empty” land (or terra nullius). However, they upheld that the Crown acquired underlying title to all lands upon their assertion. The assertion of sovereignty and terra nullius is linked to the Doctrine of Discovery, which is the idea that colonial powers could claim lands through discovering uninhabited areas. Critics have argued that the mere incantation of words halfway around the planet is not enough to undermine Indigenous title and jurisdiction [5]. As most of BC is unceded land, a similar critique is that cases such as Tsilhqot’in should begin with the assumption of pre-existing Aboriginal title and the Crown needing to establish their claims before any possible infringements [6].

In March of 2022, the Nuchatlaht First Nation’s trial against British Columbia began. They are the first group to bring a claim to the courts similar to the Tŝilhqot'in Nation and also in the context of Canada and British Columbia implementing the United Nations Declaration on the Rights of Indigenous Peoples. The case will decide whether they have title to 200 square kilometres of land on BC’s west coast.

Resources

[3] Brian Donovan, “The Evolution and Present Status of Common Law Aboriginal Title in Canada: The Law’s Crooked Path and the Hollow Promise of Delgamuukw” (2001) 35:1 UBC L Rev 43.

[4] Brian Slattery, “The Constitutional Dimensions of Aboriginal Title,” (2015), 71 SCLR (2d) 45.

[5] John Borrows, “The Durability of Terra Nullius: Tsilhqot’in Nation v British Columbia” (2015) 48 UBC LR 701.

[6] Felix Hoehn, “Tsilhqot’in Nation v British Columbia” in Kent McNeil & Naiomi Metallic, eds, Judicial Tales Retold: Reimagining Indigenous Rights Jurisprudence (Saskatoon: Indigenous Law Centre, 2021).

Tsilhqot’in Nation v British Columbia, 2014 SCC 44. Available online: scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do

Heather L Treacy, QC, ICDD, “ The landmark Tsilhqot’in Nation decision: What it means for project developers in Canada” (2014). Available online: www.dlapiper.com/en/canada/insights/publications/2014/07/the-landmark-tsilhqotin-nation-decision-what-it-__/

UNDRIPA

This section picks up where UBC Indigenous Foundations left UNDRIP: the 2010 qualified adoption of UNDRIP by the Harper Government.

The United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA) is Canada’s federal legislation assented to in 2021 that officially adopts the UN Declaration and provides for its implementation. In 2019, British Columbia ratified UNDRIP through its own provincial legislation. The Act offers new tools and potentially broader rights for Indigenous Peoples in Canada than those available under section 35 of the Constitution Act. It will likely reframe how Indigenous rights are currently interpreted by Canadian courts as it clearly renounces the Doctrine of Discovery underpinning the current case law and views Aboriginal rights as human rights.

UNDRIP contains 24 Preambles and 46 articles of rights belonging individually, collectively, or both to Indigenous Peoples. Signatory states must uphold these rights and use the text of UNDRIP to redress conflicts. It contains various rights that previously Canadian courts have limited in their interpretations and the Canadian government has limited through legislation, like the Indian Act, and policy.

History of the Act 

Canada had endorsed UNDRIP with qualifications in 2010 under the Harper government. Following the release of the Truth and Reconciliation Commission’s Calls to Action in 2015 that canvassed the experiences of Indigenous Peoples with residential schools across Canada and with the election of the Trudeau government in 2015, Canada endorsed UNDRIP without qualifications and announced their plan to support legislation to officially adopt and implement it. Since 2013, NDP Member of Parliament, Romeo Saganash, repeatedly tried to pass legislation for federal implementation UNDRIP. In December 2020, the Minister of Justice introduced Bill C-15 that led to the Act finally passing in June 2021.

Impacts of UNDRIPA

The UN Human Rights Commission defines declarations as “a solemn instrument resorted to only in very rare cases relating to matters of major and lasting importance where maximum compliance is expected.” [7] While the Declaration does not create specific binding obligations on states, it does have legal effect and obligations.[8] The expectation to abide by and implement UNDRIP is even higher, as a majority of the international community passed the Declaration and it is written in the language of the law. It is further elevated due to the presumption of conformity with international law and UNDRIP’s role as a human rights instrument.

The document is structured by asserting rights and then clarifying the state's duty to implement, promote, or redress that right. Some important articles include:

• Article 3: The right to self-determination, including the right to freely determine political status and pursue economic, social and cultural development.

• Article 4: The right to self-government relating to internal and local affairs.

• Article 7: The right to live in freedom, peace and security as distinct peoples who shall not be subjected to any act of genocide, forced assimilation, destruction of their culture, religion, education, media, or any other act of violence, including forcibly removing children of the group to another group.

• Articles 11-18 and 19-25: Contain rights related to maintaining, protecting, accessing and strengthening political, legal, economic, educational, medicinal, social and cultural institutions and knowledge.

• Article 19: The right to free, prior and informed consent.

• Article 26: The right to traditional or acquired lands and to own, use, and control them.

• Article 33: The right to determine their own identity and membership statuses.

• Article 34: The right to maintain and create institutional structures, including judicial systems.

• Article 45: Nothing in the declaration diminishes or extinguishes rights acquired now or in the future.

• Article 46: Nothing in the declaration may “dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent State.”

These sweeping rights can dramatically alter the legal landscape in Canada by overturning policies such as the Indian Act and forcing the state to address existing legislative gaps affecting Indigenous people. One current example is the federal Bill C-92 that allows Indigenous groups to partially or fully self-govern on issues related to child, youth, and family welfare. This represents a dramatic change in approach by Canada. The 2022 Quebec Court of Appeal decision specifically references the importance of UNDRIP for judicial interpretation.

UNDRIPA is already beginning to influence interpretation in the courts. The 2022 BC Supreme Court decision of Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc is one of the first cases to begin applying UNDRIPA [9]. Although the BC Supreme Court relied on other law to make the final decision, various articles from UNDRIPA aided the Court’s interpretation of the right of Indigenous people to own, control, and use their traditional territories. In his decision, the judge asked the Supreme Court of Canada to clarify how lower courts should decide in situations where the case law directly conflicts with UNDRIPA. On appeals, this case may shape future case law.

Academics have commented that a full implementation of UNDRIPA will require not only a top-down approach from federal and provincial governments, but also for Indigenous Peoples to rise to the aspirations of the rights by restoring their own governments, laws, languages, and cultures to reach self-determination and self-government [10]. Others have critiqued UNDRIPA, as it does not provide forums for international redress, lacks explanations for conflicting interests and the relationship between public and Indigenous lands, as well as leaves various implementation issues open [11]. As of 2022, only British Columbia has adopted UNDRIP in provincial legislation with an implementation plan.

Resources

[7] Report of the Commission on Human Rights on its eighteenth session (E/3616/Rev1) at para 105.

[8] Brenda Gunn, “Legislation and Beyond: Implementing and Interpreting the UN Declaration on the Rights of Indigenous Peoples,” (2020) 53:4 UBC LR 1065.

[9] Saik’uz First Nation and Stellat’en First Nation v Rio Tinto Alcan Inc, 2015 BCCA 154.

[10] John Borrows, “Foreward” 53:4 UBC L Rev 957.

[11] Kerry Wilkins, “So You Want to Implement UNDRIP…” 53:4 UBC L Rev 1237.

Canada: Department of Justice, “Backgrounder: United Nations Declaration on the Rights of Indigenous Peoples Act” (last modified 10 December 2021). Available online: www.justice.gc.ca/eng/declaration/about-apropos.html

United Nations Declaration on the Rights of Indigenous Peoples, UNGAOR, 2007, Supp No 61, UN Doc A/61/295.

United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14.

Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44.