Chapter 17 Key Terms, Figures, or Sites

Aboriginal rights: A legal term originally signifying the rights that Canada’s Indigenous Peoples hold as a result of their ancestors’ long-standing use and occupancy of land, including the right to hunt, trap, and fish, but now including the right to traditional self-government. It is a retained right from original usage and not a granted right from the government that is affirmed in subsection 35(1) of the 1982 Canadian Constitution Act. See usufructuary right.

Alberta Métis Settlement Act: (2000) An act established to maintain a land base for Alberta Métis at eight settlement communities in support of Métis self-governance and preservation of cultural identity. The Act, however, excluded any community members who had enrolled for status under the Indian Act after 1990. This was tested in court with the result that Cunningham v. Alberta (2011) established that individuals must chose to be status under the Indian Act or Métis. They cannot hold both rights per s. 15(2) of the Charter of Rights and Freedoms.

Attorney General of Ontario v. Bear Island Foundation: (1991) In this case the Supreme Court of Canada ruled that although the federal government was in breach of payments to the Bear Island community, this breach did not nullify the surrender of their lands and Aboriginal rights through the Robinson-Huron Treaty.

Calder v. Attorney General of British Columbia: (1973) Court case in which the Nisga’a of British Columbia claimed continued Aboriginal rights in their traditional territory. The Nisga’a lost on a technicality, but the case led the federal government to negotiate the Nisga’a Final Agreement Act of 2000 based on outstanding Aboriginal title under which the Nisga’a have self-governance.

comprehensive claims: Claims arising in areas where rights of traditional use and occupancy have not been extinguished by treaty or superseded by law.

Delgamuukw v. British Columbia: A court case filed in 1991 in which the Gitxsan and Wet’suwet’en claimed Aboriginal right over traditional lands in northern British Columbia. The BC Court of Appeal rejected their claim, but in 1997 the Supreme Court of Canada overturned the earlier judgment, arguing that the lower courts had not given enough weight to oral tradition or cultural practice. The decision also expanded definitions of Aboriginal title set out in Calder.

duty to consult: A legal obligation under statutory, contractual, and common law according to which federal, provincial, and territorial governments must consult with any Indigenous nations whose Aboriginal rights may be impacted by an action planned by public or private development activity. This duty derives from the recognition in section 35(1) of the 1982 Constitution Act of Indigenous and treaty rights. Examples in which the duty applies would include flood spillways resulting from hydro development, mining operations, rail and road throughways, pipelines, and other such projects. While representatives of industry may be present, the courts have fundamentally perceived that governmental bodies bear the obligation to ensure that consultation has taken place, and any accommodations implemented. It is generally applied in any action that triggers an environmental assessment, so that other government actions, like drafting legislation, do not incur this duty.

genocide: The term “genocide” was coined in 1944, and recognized as a crime under international law by the United Nations in 1946. Codified as a specific crime in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (The Genocide Convention), the Genocide Convention has been ratified by 149 of the 193 member states. Despite the fact that it has not been universally ratified, the International Court of Justice has consistently issued rulings through which it identifies the principles of the Genocide Convention as customary international law applicable to all nations globally. The Genocide Convention defines genocide as any of the following acts committed during war or peace with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group: 1) killing members of the group; 2) causing serious bodily or mental harm to members of the group; 3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part: 4) imposing measures intended to prevent births within the group; or 5) forcibly transferring children of the group to another group. The convention further states that genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempted genocide, and complicity in genocide are all crimes that can be charged. Early drafts of the act also included cultural destruction as a form of genocide, but this was opposed by member states who were or had been colonial powers. As such, cultural genocide, which is still widely condemned as immoral, is not a prosecutable international crime. However, in June of 2021, the International Criminal Court issued new guidelines under which cultural destruction when occurring in tandem with recognized acts of genocide can be corroborating evidence for the intent of the crime of genocide. In July of 2022, the Pope publicly affirmed that the Canadian system of residential schools constituted an attempted genocide.

Manitoba Métis Federation Inc. v. Canada: (2013) This case demonstrated that the Crown had failed to implement in full the land grant provision set out in s. 31 of the Manitoba Act of 1870. The court provided the MMF with full costs to file against the Crown for damages.

Marshall, Donald, Jr: (1953–2009) Mi’kmaw man released from prison in 1983 after spending 11 years in jail for a murder he did not commit; was acquitted in 1999 in a landmark court case involving Aboriginal right to fish out of season and to sell it commercially.

National Inquiry into Missing and Murdered Indigenous Women and Girls: Launched in response to a “Call for Action” in the report of the Truth and Reconciliation Commission, the Inquiry was established in 2015 and began its work in 2016. Prime Minister Justin Trudeau had promised to launch this Inquiry in the 2015 federal election campaign. The commission heard from 2,380 survivors, families, ­experts, and knowledge keepers whose testimony helped the commission to make 231 calls to justice in its 2019 final report.

Nisga’a Final Agreement Act: Legislation ratified by Parliament in 2000 in which the Nisga’a gained self-governing rights to 1,900 km2 of land but gave up the tax-free status they had under the Indian Act.

R. v. Powley: The first major Aboriginal rights case recognizing the rights of Métis people under section 35 of the Constitution. In 2003, the Supreme Court of Canada ruled that the Métis, as a distinct Indigenous People, have the constitutional right protected by section 35 to hunt for food out of season and without a licence. The decision resulted in the “Powley Test,” which laid out the criteria to determine what constitutes a Métis right and who is entitled to them. While this case focused on the right to hunt in the region around Sault Ste Marie, ON, many legal experts and Métis leaders view the case as foundational for the later recognition of additional Métis rights.

R. v. Sparrow: Supreme Court case in 1987 in which the Court ruled in favour of a Salish man of the Musqueam band who had used a fishing net larger than allowed by law. The Court found that section 35(1) of the Constitution Act established that Aboriginal fishing, land, and hunting rights for food, social, and ceremonial purposes had priority over later restrictive legislation.

R. v. Van der Peet: Supreme Court case in 1996 further defined Aboriginal rights as outlined in section 35 of the Constitution Act, 1982 and produced the Van der Peet Test to determine whether a practice is integral to a distinctive culture in order for section 35 to apply to a given use of an Aboriginal resource. Unfortunately, this means that jurists with very static perceptions of Indigenous culture privilege interpretations based on a particular historical moment rather than recognizing that cultures adapt over time. In particular, Van der Peet ruled that sale of salmon was not included in Aboriginal rights despite the significant evidence of economic activity that did not conform to Eurocentric definitions of commerce. R. v. Powley in 2003 revised this interpretation to include all uses of a resource at the time that the Crown gained effective control over a given Indigenous community, allowing recognition of Métis rights.

St Catharines Milling and Lumber Co. v. The Queen: (1885–9) Ontario court case in which the question of federal and provincial jurisdiction was central and which led to a ruling of the Judicial Committee of the Privy Council that the Proclamation of 1763 only recognized a right of occupancy for Indigenous Peoples,. Therefore, land once ceded to the Dominion would revert to the control of the province with the exception of lands reserved for Indigenous Peoples, which per the Proclamation remained under federal jurisdiction. However, the ruling also recognized the sui generis retention of a “personal and usufructuary right” which has led to subsequent court cases asserting the duty to consult when planned changes to the land would impair this right. See duty to consult and usufructuary right.

starlight tours: (scenic tours, going for a ride in the country) The police practice in Prairie provinces of picking up urban Indigenous people for intoxication or disorderly behavior and dropping them off in the country, often without a coat, to walk back to town in order to avoid paperwork from booking them. This has resulted in several deaths since 2000, and likely from before that date as well. While some officers have been disciplined when individuals survive the walk back to the city, no convictions exist in the cases of those who died of exposure.

usufructuary right: In Aboriginal law, the legal right to use the resources of land without the ability to transfer that right to anyone but the Crown with the assurance that the owner will not make the land unusuable for purposes of the usufructary right. This is the basis for the duty to consult. (See duty to consult and St Catharines Milling and Lumber Co. v. The Queen.)