WET 219 - Applied Water Law - Indigenous Rights

James Youngblood Henderson, professor of law (University of Saskatchewan) calls the case "the first major legal test of indigenous tenure." This article examines the eighteenth-century case of Mohegan Indians v. Connecticut in order to determine its significance for arguments about the legal status of Aboriginal customary law and government in British North America. The article concludes that the Mohegan case confirms that in certain circumstances native nations on reserved lands in British colonies were subject, not to colonial jurisdictions established for settlers, but to their own traditional customs and institutions. It also concludes that the case is less clear than some recent commentators have suggested about whether British law recognized such nations as having rights of sovereignty.

Frank Calder et al., suing on their own behalf and on behalf of All Other Members of the Nishga Tribal Council, and James Gosnell et al., suing on their own behalf and on behalf of All Other Members of the Gitlakdamix Indian Band, and Maurice Nyce et al., suing on their own behalf and on behalf of All Other Members of the Canyon City Indian Band, and W.D. McKay et al., suing on their own behalf and on behalf of All Other Members of the Greenville Indian Band, and Anthony Robinson et al., suing on their own behalf and on behalf of All Other Members of the Kincolith Indian Band Appellants.

As a result of Hamlet of Baker Lake v. Minister of Indian Affairs,' aboriginal title has come closer to gaining recognition in Canada as a common law right existing independently of the Royal Proclamation of 1763. As several aspects of this decision of the Trial Division of the Federal Court show, the judicial development of aboriginal title has not been easy and the concept will face more growing pains in the years to come. Nevertheless, throughout the decision Mahoney J. makes a serious effort to deal with several of the unanswered or partly answered questions surrounding aboriginal title. In doing so he has removed some of the uncertainty clouding this elusive concept.

R v. Sparrow was a precedent-setting decision made by the Supreme Court of Canada that set out criteria to determine whether governmental infringement on Aboriginal rights was justifiable, providing that these rights were in existence at the time of the Constitution Act, 1982. This criteria is known as “the Sparrow Test.”

Musqueam have inhabited the Fraser River delta and neighbouring areas since time immemorial. As coastal peoples, the Musqueam have depended on this river and fishing for sustenance for generations. Following European settlement in the Lower Mainland, the Musqueam saw their rights to the land and its resources infringed upon as non-Aboriginal fishers took increasing control of the fishing industry. New regulations set up by the government introduced fishing licenses and restricted Aboriginal peoples to “food fishing,”– fishing strictly for their own personal consumption. Despite these restrictions, the Musqueam continued to exercise what they deemed to be their inherent and unextinguished right to maintain their culture and ways of life, particularly in relation to fishing.

For more than 100 years, the Haida people have claimed title to all the lands of Haida Gwaii and the waters surrounding it, but that title has not yet been legally recognized. The Province of British Columbia issued a "Tree Farm License" (T.F.L. 39) to a large forestry firm in 1961, permitting it to harvest trees in an area of Haida Gwaii designated as Block 6. In 1981, 1995 and 2000, the Minister replaced T.F.L. 39, and in 1999, the Minister approved a transfer of T.F.L. 39 to Weyerhaeuser Co. The Haida challenged in court these replacements and the transfer, which were made without their consent and, since at least 1994, over their objections. They asked that the replacements and transfer be set aside. The chambers judge dismissed the petition, but found that the government had a moral, not a legal, duty to negotiate with the Haida. The Court of Appeal reversed the decision, declaring that both the government and Weyerhaeuser Co. have a duty to consult with and accommodate the Haida with respect to harvesting timber from Block 6.

The Supreme Court of Canada decision in the Delgamuukw case in late 1997 was widely seen as a turning point for treaty negotiations. The decision confirmed aboriginal title does exist in British Columbia, that it’s a right to the land itself — not just the right to hunt, fish or gather — and that when dealing with Crown land, the government must consult with and may have to compensate First Nations whose rights are affected. Everyone involved in treaty negotiations recognized the decision could have major impacts on policies, positions and mandates.

The Delgamuukw case (1997) (also known as Delgamuukw v. British Columbia) concerned the definition, the content and the extent of Aboriginal title (i.e., ownership of traditional lands). The Supreme Court of Canada observed that Aboriginal title constituted an ancestral right protected by section 35(1) of the Constitution Act, 1982. Influenced by the Calder case (1973), the ruling in the Delgamuukw case had an impact on other court cases about Aboriginal rights and title, including in the Tsilhqot’in case (2014).

The Supreme Court of Canada (SCC) rendered an absolutely groundbreaking decision on June 26, 2014 in the case Tsilhqot'in Nation v. British Columbia (Tsilhqot'in Nation).' The decision quickly attracted massive publicity 2 as it is the first time in Canadian history in which the highest court issued a specific declaration that Aboriginal title continues to exist today. The ruling effectively removes the power of the province to authorize logging without the consent of the Aboriginal title holders unless it can justify its actions under s. 35(1) of the Constitution Act, 1982. It is worth noting that the Government of British Columbia (B.C.) has yet to seek to do this since the Court unanimously pronounced that the Tsilhqot'in Nation held Aboriginal title over 1700 km2 of land in a relatively remote area of south central British Columbia 200 km west of the town of Williams Lake. This land forms a significant part of the traditional territory of the Tsilhqot'in Nation, which consists of six distinct First Nations recognized as "bands" under the Indian Act with approximately 3000 members.