Canadian Law has 2 main sources

1 – Legislation 2 – Court decisions

Canada’s supreme law is found in the Constitution of Canada

Section 35 of the Constitution Act (1982) recognized and affirmed the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada

Landmark Cases

Recognized the existence in law of an aboriginal interest in Canadian land
Terms in Treaty 3 could not be enforced and First Nations could maintain their legal right to the reserves they had agreed upon
The First Nations needed a commitment from the provincial government to honour the Crown’s treaty promises when they gave up 30,000 acres
Took until 1927 for Ontario and the federal government to agree upon which of the selected reserves the First Nations would be entitled to retain
Influenced courts interpretations of Aboriginal rights for 100 years

Aboriginal rights are not dependent on Royal Proclamation but independent
First time Canadian law acknowledged that Aboriginal title to land existed prior to the colonization of the continent
Chief Calder lost his case, but the decision led to federal willingness to develop a new land claims policy and negotiate land claims
Divided land claims into two types : comprehensive and specific

Aboriginal sovereignty and rights were independent and apart form the Crown
Rights flowed from Aboriginal title and occupation and from no other source
Established Aboriginal title to be a one of a kind right
Treaties must be interpreted and viewed in light of the oral negotiations and the promises of the Crown’s agents, rather than solely from the written text
First stated that the government has a fiduciary duty towards First Nations

Court ruled that vast areas in the Northwest Territories are subject to Aboriginal rights and title of the Inuit
The judge laid out the criteria for Inuit to meet in order “to establish Aboriginal title cognizable at common law”
This criteria have become known as the Baker Lake Test of 1980 and is applied in litigation regarding Aboriginal title and rights

The single most important judicial decision on Aboriginal rights in Canada, first decision by the Supreme Court concerning section 35 of the Constitution Act
Attempts to balance the rights and freedoms of Aboriginal people with the rights and freedoms of Canadians
Led to developing a more liberal interpretation of Aboriginal rights in Canada
Aboriginal rights are to be taken seriously in order to maintain the honour of the Crown and in it’s fiduciary relationship

The court directly addressed the issue of Aboriginal title
Aboriginal title is different from land usage rights, acknowledging Indigenous ownership of the land and the right to use in ways it modern ways
Ruling made important statements about the legitimacy of Indigenous oral history

Each treaty must be considered in it’s unique historical and cultural context
External evidence can be used in interpreting Aboriginal treaties
Words of treaties should be examined to determine their factual meaning, noting any ambiguities or misunderstanding from linguistic and cultural differences
Consideration must be given to oral texts
Begins the general trend towards acceptance by Canadian courts in respect to the legitimacy of oral histories

The government has a duty to respect the provisions contained in modern treaties and consult in a way that upholds the Honour of the Crown, and no more
Disputes between governments and First Nations will be handled by the courts like land-use disputes between governments and non-aboriginal Canadians
Complying with the terms of the treaty renounces a paternalistic approach to relations with Aboriginal peoples

Bibliography

Beckman v. Little Salmon/Carmacks First Nation. 3 SCR 103 (Supreme Court of Canada 2010).

Burnett, K., & Read, G. (Eds.). (2012). Aboriginal history: A reader. Don Mills, Ont: Oxford University Press.

Calder et al. V. Attorney-General of British Columbia. (Supreme Court of Canada January 31, 1973).

Delgamuukw v. British Columbia. 3 SCR 1010 (Supreme Court of Canada 1997).

Guerin v. The Queen. 2 SCR 335 (Supreme Court of Canada 1984).

Hamlet of Baker Lake v. Canada (Indian Affairs and Northern Development). (Federal Court November 15, 1979).

R. v. Marshall. 3 SCR 533 (Supreme Court of Canada 1999).

R. v. Sparrow. 1 SCR 1075 (Supreme Court of Canada 1990).

St. Catharines Milling and Lumber Co. V. R. (Court of Appeal for Ontario April 20, 1886).