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
John Ralston Saul at home: ‘Just transfer the power and money, and get on with it.’Joe Friesen | The Globe and MailIn the winter of 2012-13, John Ralston Saul watched as the Idle No More movement swept across the country, bringing thousands of aboriginal people into the streets to draw attention to a wide range of issues.When the round dances stopped and the media moved on, he decided to write something – a pamphlet or manifesto that would help explain to a non-aboriginal audience what had just happened. According to Mr. Saul, when aboriginal leaders speak, many Canadians tend to misinterpret what they are saying.The result is his new book The Comeback, the story of a movement that has been building from a low point a little more than a century ago to where it’s now poised, he says, to reclaim a central place in Canadian affairs.The author begins by dismissing sympathy, the lens through with which many Canadians view aboriginal issues. That’s just soft racism, he argues. Sympathy is fine as a point of entry, but it obscures why things are the way they are.“The actual problem is they have rights, and they’ve been removed,” he says during a conversation in his Toronto living room this week. “If they had their rights back in the full sense of the word, you wouldn’t have to feel sympathy. Sympathy is a way of not dealing with the central issues of the treaties.”The treaties are at the heart of The Comeback. The opening page is dedicated to an image of the Peace of Montreal of 1701, signed by the Iroquois, more than 30 other first nations and New France, which Mr. Saul calls the beginning of the Canadian idea of “treaty.” These agreements to share the land are what make modern Canada possible. “We are all treaty people,” Mr. Saul says. “Every Canadian is a signatory to those agreements, and those agreements have a meaning.”
“When you read the document closely it shows an intimate surveillance,” said Monaghan. “The documents show the breadth of and the normalization of the regular systematic surveillance of protest groups, of people who criticize government policy and critics of energy policy. You have national security bureaucracies, agencies, focused on domestic protest groups and it has nothing to do with terror, but with the energy economy.”
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.”
John Borrows is an Anishinabe scholar and expert in Indigenous law. He presents a lecture on the connections between First Nations and human rights. Its from a series called Fragile Freedoms: the Global Struggle Human Rights presented at the new Canadian Museum for Human Rights, in Winnipeg.
Gitxaala Thanks Tsilhqot’in and Calls on Crown to Live Up to Its Own Lawsby ahnationtalk on June 27, 2014June 26, 2014KITKATLA, BRITISH COLUMBIA–June 26, 2014 – Gitxaala extends its thanks to the Tsilhqot’in for bringing the important issue of aboriginal rights and title to the forefront and gaining a significant victory for aboriginal people – especially for nations such as ours who have not ceded their aboriginal title.In its decision today, the Supreme Court of Canada has made it clear that aboriginal title is very much like private property rights – at its core it is the right to decide what use is made of our land and waters.
The uber right-wing billionaire Koch brothers, owners of the U.S.’s largest private company, are some of the country’s most influential Tea Party supporters, climate change deniers and anti-union activists.
Now Canadian oil is on the cusp of adding to their empire.
Already the largest foreign leaseholder in Alberta’s controversial oilsands, a Koch Industries subsidiary has filed an application to start development on the Dunkirk commercial scale oil project.
Koch Oil Sands Operating ULC, on behalf of Koch Canada Exploration submitted an application late last month for development to the Alberta Energy Regulator, and has also filed terms of reference for an environmental impact assessment to Alberta Environmental and Sustainable Resource Development.
“The only thing I can see is they are buying time. They’re putting the project on life support,” said Chief Joe Alphonse of the Tletinqox-t’in and the tribal chairman of the Tsilhqot’in National Government, over the phone from his office in northern B.C.
On life support is Taseko Mines’ latest effort to open a gold-copper mine in B.C.’s northern interior, in the heart of Tsilhqot’in & Secwepemc Nations’ traditional territory. The Vancouver-based company has been attempting to get the mine up and running for over five years now, and has faced strong opposition along the way.
The project has been rejected by the federal government twice, both times after negative findings from a federal environmental assessment panel. The latest rejection, this past October, found that the mine’s adverse effects greatly outweighed any economic benefits.
These negatives include impacts on the water quality in the area, including Fish Lake (known by the Tsilhqot’in as Teztan Biny), on fish populations and ecosystems, and on the traditional and cultural use of the land by First Nations people. There would also be significant impacts on the South Chilcotin grizzly bear population.
But the company isn’t done yet and has filed two judicial reviews, both asking the Federal Court of Canada to throw out the latest decision. While the first request hinges on a dispute about the science behind the panel’s finding, a review filed in late March is challenging the fairness of the review process itself, and could impact how the federal government consults with First Nations and what projects would be subject to future federal environmental assessments.