Tuesday’s Federal Court decision recognizing Métis and non-status Indians as Indians under Section 91(24) of the Constitution Act is just one of several landmark court decisions over the years that have helped define and shape aboriginal rights in Canada.Below is a selection of some key court rulings.Calder et al. v. B.C. attorney general (1973) — The split Supreme Court of Canada decision in this case opened the door to negotiations between the government and First Nations to establish rights to land and resources and launched the land claims process that continues to this day. B.C. cabinet minister and Nisga’a chief Frank Arthur Calder, the first status Indian to be elected to a Canadian legislature, and the Nisga’a tribal council took the B.C. government to court, arguing that the aboriginal title to about 2,600 square kilometres of Nisga’a land in and around the Nass River Valley in northwestern B.C. had never been extinguished.Although the court ultimately ruled against the Nisga’a, the decision was the first time the courts acknowledged that aboriginal title to land existed prior to colonization and the Royal Proclamation of 1763. The judges could not agree, however, on whether that title extended to the modern day, with three of them saying it did and three arguing the title was extinguished when the laws of the B.C. colonial government took effect. A seventh judge ruled against the Nisga’a on a technicality, but the case laid the groundwork for the adoption of the groundbreaking Nisga’a Treaty in 2000, the first contemporary land claims agreement in B.C., and other land agreements.R. v. Sparrow (1990) — This case is considered the first Supreme Court test of the scope of Section 35(1) of the Constitution Act, 1982, which recognizes and affirms the “existing aboriginal and treaty rights” of the aboriginal people of Canada and has been at the centre of many court battles over land and resource rights. In its decision, the court for the first time set out criteria for determining whether a right can be considered to be an “existing” right and whether the government is justified in curtailing such a right.The case stems from the 1984 arrest of Ronald Edward Sparrow, a member of the Musqueam band in B.C., who was charged with violating fisheries regulations when he used a net that was longer than his fishing licence allowed. Sparrow argued that his right to fish with the net was an existing aboriginal right protected by Sec. 35 (1) of the Constitution Act. The court agreed but stipulated that the right is not absolute and can be, in certain circumstances, infringed upon.Delgamuukw v. British Columbia (1997) — Although the Supreme Court of Canada never ruled on the question at the heart of this case, the statements it made about aboriginal land title were precedent setting for future land rights cases and the land claims process. The court confirmed that aboriginal title entails rights to the land itself, not just the right to extract resources from it. The court also ruled that the government has a duty to consult with First Nations on issues concerning Crown land and in some instances may have to compensate them for infringing on their rights to that land. The case was launched by Chief Earl Muldoe, known as Delgamuukw, and other hereditary chiefs of the Gitxsan and Wet’suwet’en First Nations in B.C., who took the provincial government to court in an effort to establish ownership and jurisdiction over 58,000 square kilometres of territory in the Skeena watershed in northwestern B.C. The Supreme Court did not rule on the question of ownership, saying the issue had to be decided at a new trial, but gave a detailed interpretation of what constitutes aboriginal title, laying out guidelines for how the issue should be approached in future disputes.R. v. Marshall (1999) — This court battle over fishing rights in Nova Scotia inflamed tensions between aboriginal and non-native fishermen in the Maritimes and Quebec. Donald Marshall Jr., a Mi’kmaq man from Nova Scotia who decades earlier had been wrongfully convicted — and ultimately acquitted — in a high-profile murder case, had been charged with fishing eels out of season, fishing without a licence and fishing with an illegal net but argued that aboriginal rights stemming from 18th-century treaties with the British Crown exempted him from fisheries regulations.After the Supreme Court ruled in his favour, upholding the Mi’kmaq and Maliseet people’s rights to earn a “moderate livelihood” from commercial fishing and hunting, native lobster fishermen interpreted the ruling as granting them rights to catch lobster out of season and clashed with their non-native counterparts, who feared lobster stocks would be jeopardized. After a particularly heated showdown in Burnt Church, N.B., the court was forced to issue a clarification of its ruling, which underlined that the ruling applied to fisheries only and not to all natural resources and that the government could rest
The Canadian government is increasingly worried that the growing clout of aboriginal peoples’ rights could obstruct its aggressive resource development plans, documents reveal.
Since 2008, the Ministry of Aboriginal Affairs has run a risk management program to evaluate and respond to “significant risks” to its agenda, including assertions of treaty rights, the rising expectations of aboriginal peoples, and new legal precedents at odds with the government’s policies.
Yearly government reports obtained by the Guardian predict that the failure to manage the risks could result in more “adversarial relations” with aboriginal peoples, “public outcry and negative international attention,” and “economic development projects [being] delayed.”
“There is a risk that the legal landscape can undermine the ability of the department to move forward in its policy agenda,” one Aboriginal Affairs’ report says. “There is a tension between the rights-based agenda of Aboriginal groups and the non-rights based policy approaches” of the federal government.
The Conservative government is planning in the next ten years to attract $650 billion of investment to mining, forestry, gas and oil projects, much of it on or near traditional aboriginal lands.
Critics say the government is determined to evade Supreme Court rulings that recognize aboriginal peoples’ rights to a decision-making role in, even in some cases jurisdiction over, resource development in large areas of the country.
“The Harper government is committed to a policy of extinguishing indigenous peoples’ land rights, instead of a policy of recognition and co-existence,” said Arthur Manuel, chair of the Indigenous Network on Economies and Trade, which has lead an effort to have the economic implications of aboriginal rights identified as a financial risk.
“They are trying to contain the threat that our rights pose to business-as-usual and the expansion of dirty energy projects. But our legal challenges and direct actions are creating economic uncertainty and risk, raising the heat on the government to change its current policies.”
A spokesperson for the Ministry of Aboriginal Affairs declined to answer the Guardian’s questions, but sent a response saying the risk reports are compiled from internal reviews and “targeted interviews with senior management in those areas experiencing significant change.”
“The [corporate risk profile] is designed as an analytical tool for planning and not a public document. A good deal of [its] content would only be understandable to those working for the department as it speaks to the details of the operations of specific programs.”
Last year Canada was swept by the aboriginal-led Idle No More protest movement, building on years of aboriginal struggles against resource projects, the most high-profile of which has targeted Enbridge’s proposed Northern Gateway pipeline that would carry Alberta tar sands to the western coast of British Columbia.
“Native land claims scare the hell out of investors,” an analyst with global risk consultancy firm Eurasia Group has noted, concluding that First Nations opposition and legal standing has dramatically decreased the chances the Enbridge pipeline will be built.
In British Columbia and across the country, aboriginal peoples’ new assertiveness has been backed by successive victories in the courts.
According to a report released in November by Virginia-based First Peoples Worldwide, the risk associated with not respecting aboriginal peoples’ rights over lands and resources is emerging as a new financial bubble for extractive industries.
The report anticipates that as aboriginal peoples become better connected through digital media, win broader public support, and mount campaigns that more effectively impact business profits, failures to uphold aboriginal rights will carry an even higher risk.
The Aboriginal Affairs’ documents describe how a special legal branch helps the Ministry monitor and “mitigate” the risks posed by aboriginal court cases.
The federal government has spent far more fighting aboriginal litigation than any other legal issue – including $106 million in 2013, a sum that has grown over the last several years.
A special envoy appointed in 2013 by the Harper government to address First Nations opposition to energy projects in western Canada recently recommended that the federal government move rapidly to improve consultation and dialogue.
To boost support for its agenda, the government has considered offering bonds to allow First Nations to take equity stakes in resource projects. This is part of a rising trend of provincial governments and companies signing “benefit-sharing” agreements with First Nations to gain access to their lands, while falling short of any kind of recognition of aboriginal rights or jurisdiction.
Since 2007, the government has also turned to increased spying, creating a surveillance program aimed at aboriginal communities deemed “hot spots” because of their involvement in protest and civil disobedience against unwanted extraction on their lands.
Over the last year, the Harper government has cut funding to national, regional and tribal aboriginal organizations that provide legal services and advocate politically on behalf of First Nations, raising cries that it is trying to silence growing dissent.
TORONTO – Aboriginal people in Ontario are prepared to lay down their lives to protect their traditional lands from any unwanted development, a group of First Nations chiefs said Tuesday.Five aboriginal chiefs served notice on the Ontario and federal governments, developers and the public that they’ll assert their treaty rights over their traditional territory and ancestral lands.That includes the rights to natural resources — such as fish, trees, mines and water— deriving benefit from those resources and the conditions under which other groups may access or use them, which must be consistent with their traditional laws, said Ontario Regional Chief Stan Beardy.“All those seeking to access or use First Nations lands and resources have, at a minimum, a duty to engage, enquire and consult with First Nations with the standards of free, prior and informed consent,” he said.“We will take appropriate steps to enforce these assertions.”