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Supreme Court of Canada cases involving Indigenous peoples

 

This guide presents a number of Supreme Court of Canada decisions dealing with Indigenous law and First Nations rights. Note that this is not a comprehensive list, but one that endeavours to cover the most representative, impactful Supreme Court cases dealing with these issues over the past several decades.
 
Each case entry includes:
  • A stable link to the case on CanLII
  • A brief summary of the case
  • The location of the events discussed in the case
  • The names of the Indigenous communities involved in the case (most common and/or recent term for each community)

 

On June 26, 2014 the Supreme Court of Canada issued an unprecedented decision on indigenous land rights in Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, granting the first declaration of Aboriginal Title in Canadian history.     Chief Roger William (the representive plaintiff, centre), standing next to Chief Judy Wilson (Secwepemc) and Chief Wayne Christian (Secwepemc) and the Tsilhqot'in Legal team (David Rosenberg, Jay Nelson) and the Secwepemc, Okanagan, UBCIC legal team (Louise Mandell, Ardith Walkem and Prof. Nicole Schabus - far left in the picture).  Photo reproduced from Thompson Rivers University under Creative Commons license.

On June 26, 2014 the Supreme Court of Canada issued an unprecedented decision on indigenous land rights in Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, granting the first declaration of Aboriginal Title in Canadian history.   

Chief Roger William (the representive plaintiff, centre), standing next to Chief Judy Wilson (Secwepemc) and Chief Wayne Christian (Secwepemc) and the Tsilhqot'in Legal team (David Rosenberg, Jay Nelson) and the Secwepemc, Okanagan, UBCIC legal team (Louise Mandell, Ardith Walkem and Prof. Nicole Schabus - far left in the picture).

Photo reproduced from Thompson Rivers University under Creative Commons license.

Cases by category

Fishing & hunting

Lax Kw'alaams Indian Band v. Canada (Attorney General), [2011]

Lax Kw'alaams Indian Band v. Canada (Attorney General), [2011] 3 SCR 535, 2011 SCC 56

Summary:
This case concerns the distinction between pre- and post-contact practices of First Nations in a particular region of the B.C. coast. While some of their fishing and trading practices were held to be distinctive of and integral to their pre-contact culture, some of the commercial activities involved were not, and so the group appealed.

Location:
Northwest coast of British Columbia between the estuaries of the Nass and lower Skeena rivers

Indigenous communities involved:
Lax Kw'alaams

R. v. Kapp, [2008] 

R. v. Kapp, [2008] 2 SCR 483, 2008 SCC 41

Summary:
The appellants, non-aboriginal commercial fishers, were charged with fishing at a prohibited time. They argued that this prohibition, based on the Aboriginal Fisheries Strategy and the issuance of communal fishing licenses to three aboriginal bands which permitted aboriginal-only fishing periods, constituted racial discrimination.

Location:
Fraser River, British Columbia

R. v. Morris, [2006]

R. v. Morris, [2006] 2 SCR 915, 2006 SCC 59

Summary: 
Two members of the Tsartlip Nation shot a hunting decoy set up to catch illegal hunters. They were found to have been hunting at a prohibited time in a prohibited manner (at night, with illumination), but challenged this finding based on their rights under the North Saanich Treaty of 1852. 

Location: 
​Saanich, southern Vancouver Island, British Columbia

Indigenous communities involved: 
​Tsartlip Indian Band of the Saanich Nation 

R. v. Marshall, [1999] 

R. v. Marshall, [1999] 3 SCR 456 and R. v. Marshall, [1999] 3 SCR 533

Summary:
A member of the Mi'kmaq community was charged with fishing out of season without a license, and selling his catch without a license. The case deals with the modern applicability or lack thereof of laws put in place by Canadian settlers to regulate trade.

Location:
New Brunswick

Indigenous communities involved:
​Mi'kmaq

R. v. Côté, [1996]

R. v. Côté, [1996] 3 SCR 139

Summary:
Algonquin members of an expedition to teach traditional fishing methods were charged and convicted of entering a controlled harvest zone without adherence to proper procedure, as well as an additional charge for one of the members of the expedition for fishing without a license. The Algonquins challenged these convictions under the Constitution Act, maintaining that they were exercising rights to fish on ancestral land.

Location:

  • ​Kitigan Zibi, Quebec
  • Quebec ZEC (zone d'exploitation contrôlée)

Indigenous communities involved:

  • Algonquin Nation
  • Desert River Band
  • Maniwaki reserve

R. v. Gladstone, [1996] 

R. v. Gladstone, [1996] 2 SCR 723

Summary: 
The appellants were charged with attempting to sell fish caught without the proper license. At issue was 1) whether their inquiry as to the buyer's "interest" in their goods constituted intent to sell and 2) whether the fishing and subsequent sale were covered by existing aboriginal rights under section 35 of the Constitution Act. PART OF THE VAN DER PEET TRILOGY OF CASES.

Locati​on:
Vancouver, British Columbia

Indigenous communities involved:
​Heiltsuk

R. v. N.T.C. Smokehouse Ltd., [1996]

R. v. N.T.C. Smokehouse Ltd., [1996] 2 SCR 672

Summary:
The question in this case was whether the appellant's conviction for selling and purchasing fish not caught under the authority of a commercial fishing licence was an infringement of aboriginal rights under Section 35 of the Consitution Act. The appellant did posess a food fishing license, but this did not cover commercial activity at the time.  PART OF THE VAN DER PEET TRILOGY OF CASES.

Location:
British Columbia

Indigenous communities involved:

  • Sheshaht
  • Opetchesah

R. v. Van der Peet, [1996]

R. v. Van der Peet, [1996] 2 SCR 507

Summary:
The appellant was charged and convicted of selling fish without a proper license. The issue facing the court was whether the British Columbia Fishery (General) Regulations, which prohibited the sale of these fish under the appellant's existing Indian food fishing license, infringed upon her rights under section 35 of the Consitution Act. PART OF THE VAN DER PEET TRILOGY OF CASES.

Location:
British Columbia

R. v. Nikal, [1996]

R. v. Nikal, [1996] 1 SCR 1013

Summary:
A member of the Moricetown Band was convicted of fishing without a license. He appealed on the grounds that the requirement for a license to fish on the river running through his community's land infringed his aboriginal rights.

Location:
​Moricetown, British Columbia

Indigenous communities involved:

  • Moricetown Indian Band
  • Wet'suwet'en

R. v. Lewis, [1996]

R. v. Lewis, [1996] 1 SCR 921

Summary:
Members of the Squamish Indian Band engaged in "net fishing" just outside the boundaries of the Cheakamus Reserve. The case dealt with the issue of reserve boundaries as well as with the use of public waters and the duty of the Crown to provide fishing states.

Location:
​Squamish, British Columbia

Indigenous communities involved:
​Squamish

R. v. Badger, [1996] 

R. v. Badger, [1996] 1 SCR 771

Summary:
The appellants were status Indians under Treaty 8 who had been hunting for food on privately owned lands surrendered by Treaty 8. The question at hand was whether their right to hunt extended to these lands, and whether that right was negated by subsequent legislation (the National Resources Transfer Agreement).

Location:
Treaty 8 First Nations territory, northern Alberta

R. v. Sparrow, [1990] 

R. v. Sparrow, [1990] 1 SCR 1075

Summary:
The appellant, charged with fishing with larger net than allowed under his Band's Indian food fishing license, appealed on the basis that the restrictions of the license conflicted with his Aboriginal rights under the Constitution Act.

Location:
British Columbia

Indigenous communities involved:
​Musqueam

R. v. Horseman, [1990] 

R. v. Horseman, [1990] 1 SCR 901

Summary:
The appellant in this case was charged with unlawfully trafficking in wildlife. While hunting moose, he killed a bear in self defence. At the time he did not hold a license to hunt grizzly bears; however, a year later, he obtained one, and sold the bear's hide. At issue is whether the man's rights under Treaty 8 supercede his conviction.

Location:
Treaty 8 First Nations territory, northern Alberta

Land title

Tsilhqot'in Nation v. British Columbia, [2014]

Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256

Summary:
A semi-nomadic grouping of six bands objected to the granting by the B.C. government of a commercial logging license on land they consider part of their traditional territory. The case dealt in part with the issue of whether Aboriginal land title claims required regular occupation of the land in question.

Location:
Central British Columbia

Indigenous communities involved:
​Tsilhqot'in Nation

Beckman v. Little Salmon/Carmacks First Nation, [2010]

Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103

Summary:
This case concerns whether the territorial government of the Yukon proceeded without proper consultation or regard to First Nations concerns when they granted a parcel of Little Salmon/Carmacks hunting/fishing/subsistence lands to a non-member of the Little Salmon/Carmacks nations. 

Location:
​Carmacks, Yukon

Indigenous communities involved:
Little Salmon/Carmacks

Haida Nation v. British Columbia (Minister of Forests), [2004]

Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73

Summary:
The Minister of Forests allowed the transfer of a "Tree Farm License" from one firm to another, prompting Haida to renew their objections to the license's coverage of the lands of Haida Gwaii, which had not been titled to them in any treaty, but to which they had long laid claim. The case considers the moral, if not legal, obligation for consultation with First Nations groups in this type of situation.

Location:
​Haida Gwaii, British Columbia

Indigenous communities involved:
​Haida

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004]

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74

Summary:
The Taku River Tlingit First Nation ("TRTFN"), which participated in the environmental assessment process engaged in by the Province under the Environmental Assessment Act in response to a mining company's petition, objected to the company's plan to build a road through a portion of the TRTFN's traditional territory. The Province granted the company road building rights, but the TRTFN brought a petition to quash the decision on grounds based on administrative law and on its Aboriginal rights and title. 

Location:
Northwestern British Columbia

Indigenous communities involved:
​Taku River Tlingit First Nation

Ross River Dena Council Band v. Canada, [2002]

Ross River Dena Council Band v. Canada, [2002] 2 S.C.R. 816, 2002 SCC 54

Summary:
An issue around a tax refund for the purchase of tobacco in a First Nations community led to disagreement over the community's status and whether it could be treated as a reserve legally, even though the village had been "set aside" but never formally created as a reserve.

Location:
Ross River, Yukon Territory

Indigenous communities involved:
​Kaska-Dene

Delgamuukw v. British Columbia, [1997] 

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

Summary:
​Gitksan or Wet'suwet'en hereditary chiefs claimed, among them, that over 58,000 square kilometers of British Columbia land should be under their jurisdiction. The government counterclaimed that the land should not be ceded, and instead the appellants should be pursuing compensation from the federal government.

Location:
British Columbia

Indigenous communities involved:

  • ​Gitksan
  • Wet'suwet'en

Opetchesaht Indian Band v. Canada, [1997] 

Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119

Summary:
In the 1950s the band authorized BC Hydro to use some of their land to install hydro lines, and the agreement did not specify an exact termination date; in the 1990s, the band appealed to the BC Supreme Court and later to the SCC, claiming that the part of the Indian Act under which the agreement was made was not intended to continue the agreement indefinitely.

Location:
​Alberni Valley, Vancouver Island, British Columbia

Indigenous communities involved:
​Opetchesaht

St. Mary's Indian Band v. Cranbrook (City), [1997] 

St. Mary's Indian Band v. Cranbrook (City), [1997] 2 S.C.R. 657

Summary:
The Band handed over control of some of their land for municipal use, on the condition that the land would be returned to them if it was no longer needed for those purposes. However, at issue was the question of whether the land continued to be part of the reserve for property tax purposes, having been "otherwise than absolutely" surrendered.

Location:

  • Kamloops, British Columbia
  • Cranbrook, British Columbia

Indigenous communities involved:

ʔaq'am (also known as St. Mary's Indian Band; member of the Ktunaxa Nation)

R. v. Adams, [1996] 

R. v. Adams, [1996] 3 S.C.R. 101

Summary:
The appellant, a Mohawk, was charged with fishing without a license. There was no regular license available for the area, however, there may have been a special license available, for which the appellant did not apply. The question facing the supreme court was that of overturning his conviction under the land title sections of the Constitution Act -- a question which led to consideration of whether aboriginal title only applies to land, or to a broader range of rights.

Location:
Lake St. Francis, Quebec

Indigenous communities involved:
Mohawk

Religion & culture

R. v. Sappier; R. v. Gray, [2006]

R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686, 2006 SCC 54

Summary:
The respondents were charged with harvesting Crown timber from Crown lands - lands which were traditionally harvested by their communities. The case hinged on whether the respondents' aboriginal rights allowed the use of this timber for personal purposes.

Location:
New Brunswick

Indigenous communities involved:

  • Maliseet
  • Mi'kmaq

Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 

Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31

Summary:
Conflict between Interfor and the Gitksan over areas Interfor intended to develop which contained a significant number of culturally, historically, and scientifically significant Culturally Modified Trees (CMTs). The case considers the relative weight of sections of the Heritage Conservation Act which prohibit this type of development and which allow exceptions to the prohibition.

Location:
British Columbia central coast

Indigenous communities involved:
​Gitksan/Gitxaala/Kitkatla Band

R. v. Sioui, [1990] 

R. v. Sioui, [1990] 1 S.C.R. 1025

Summary:
Members of the Huron Band were charged with cutting down trees, camping in making fires in a park. The case explored whether the regulations they were charged under were applicable, and whether agreements made in the 18th century constituted a treaty that protected their rights to these activities.

Location:
​Gatineau, Quebec

Indigenous communities involved:
Huron

Self-government

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham,  [2011]

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670

Summary:
The claimants in this case were members of a Metis community in Alberta, but when they registered as status Indians under the Indian Act in order to obtain medical benefits, their membership in the Metis settlement was revoked. They sought a declaration that this dismissal was unconstitutional.

Location:
​Peavine Métis Settlement, Alberta

Indigenous communities involved:
​Peavine Métis Settlement

R. v. Pamajewon, [1996]

R. v. Pamajewon, [1996] 2 S.C.R. 821

Summary:
Members of both the Shawanaga and Eagle Lake First Nations were convicted of criminal offenses for conduction gambling operations on reserve lands. They appealed to the Supreme Court of Canada citing the right to self-government granted in the Constitution Act, and it fell to the Court to decide whether the Criminal Code sections that had been violated were applicable to these appellants and these activities.

Location:
Southern Ontario, on the Shawanaga and Eagle Lake reserves.

Aboriginal communities involved:

  • Shawanaga First Nation
  • Eagle Lake First Nation

Taxation

Bastien Estate v. Canada, [2011]

Bastien Estate v. Canada, 2011 SCC 38

Summary:
A status Indian belonging to the Huron-Wendat Nation, who has invested income in a bank on the Wendake Reserve, considered his income from this investment exempt from taxation under the Indian Act. However, his 2001 taxes were assessed to include this investment, holding that the bank generated its revenues outside of the reserve. 

Location:
​Wendake Reserve, near Quebec City, Quebec

Indigenous communities involved:
​Huron-Wendat Nation

Williams v. Canada, [1992]

Williams v. Canada, [1992] 1 S.C.R. 877

Summary:
The issue at question was whether the appellant's regular and "enhanced" unemployment benefits should be taxable, given his status and the source of his income (which was his Band). This case established new ways of assessing whether such benefits should be taxable, including the locations of the employer, employee, work, and payment.

Location:
Saskatchewan

Treaty rights

Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 

Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, [2014] 2 S.C.R. 447

Summary:
This case concerned the provisions of Treaty 3, signed in 1873 between the Dominion of Canada and the Ojibway Chiefs. In 2005 the Ojibway signatories' descendents challenged the right of the Ontario government to issue licenses for use of some of the lands protected by the treaty.

Location:
Keewatin area, Northwestern Ontario

Indigenous communities involved:
Grassy Narrows First Nation (Ojibway)

Behn v. Moulton Contracting Ltd.,[2013] 

Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227

Summary:
Members of the Fort Nelson First Nation erected a camp to block logging access to sites located in their territory, arguing that the grantin gof logging licenses in this area by the Crown breached the constitutional duty to consult as well as their treaty rights.

Location:
Fort Nelson, British Columbia

Indigenous communities involved:
Fort Nelson First Nation

Ermineskin Indian Band and Nation v. Canada, [2009]

Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222

Summary:
The Ermineskin Nation and the Samson Nation, bands entitled to financial, among other, benefits under Treaty 6 of 1876, filed claims that the Crown had failed in its fiduciary obligations to them. This was based on what they saw as refusal or neglect of the Crown to make prudent investments of the oil and gas royalties it collected and held for the bands under the terms of the treaty.

Location:
Samson Reserve and Pigeon Lake Reserves, Alberta

Indigenous communities involved:

  • Ermineskin Nation
  • Samson Nation

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005]

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69

Summary:
Conflict over lack of consultation prior to the federal approval of a road which would run through the Mikisew Reserve, land guaranteed by Treaty 8 (1899). Despite qualifications in the treaty about possible development of the land by the government, objections to the road went beyond the closure of hunting/trapping areas to the possible negative effects on traditional lifestyle practices in the area.

Location:
The area surrendered to the Crown under Treaty 8 covers 840,000 square kilometres of what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan and the southern portion of the Northwest Territories.

Indigenous communities involved:
Big Island Lake Cree Nation, Lesser Slave Lake Indian Regional Council, Treaty 8 First Nations of Alberta, Treaty 8 Tribal Association, Blueberry River First Nations and Assembly of First Nations

Additional resources

Map of relevant locations & communities

 

 

Legal information resources

First Nations research resources

First Nations terminology

First Nations Studies Department

Public Policy information resources

History information resources

The End Is Not Nigh: Reason Over Alarmism in Analysing the Tsilhqot'in Decision, by Kenneth Coates and Dwight Newman

Canadian Legal Information Institute

Supreme Court of Canada

Commentary on Section 35 of the Constitution Act from Indigenous Foundations at UBC

Overview of Aboriginal Rights and Title from Indigenous Foundations at UBC

Explanation of the Van der Peet Test from Indigenous Foundations at UBC

BC Assembly of First Nations list of Landmark Supreme Court Cases

Professor Joseph Magnet's summary of consitutional legal issues relating to Aboriginal Peoples 

Indigenous Law Portal (from the Library of Congress)

First Nations research resources

UBC's Xwi7xwa Library's Thesaurus of BC First Nations Names

Indigenous Studies Portal at University of Saskatchewan

Indigenous Foundations at UBC