Making History: 4 Court Cases You Need to Know About
Indigenous Rights and Title Legal Cases in Canada: Legal Action & Beyond
By Elyse Lindgren
Indigenous Rights and Title legal cases in Canada have been pivotal to Indigenous rights and way of life today. Key court cases like Calder, Baker, Sparrow, and Tsilhqot’in have withstood the test of time, laying the foundation for present and future generations of Indigenous peoples. These court cases symbolize what is important goes beyond the outcome, to how the cases are documented into law (Weir, 2013).
1. Calder et al. vs Attorney General BC 1973- Title
Calder was one of the first cases to open the door for Indigenous rights In Canada. Nisga’a Chief Frank Calder brought the case forward to determine that Aboriginal Title existed during the Royal Proclamation of 1763 and continues to exist today (Salomons, 2009). The lawsuit failed at the provincial level as 1 out of 7 judges ruled against the case; however, it passed at the supreme court level.
Establishing the legitimacy of Aboriginal Title was crucial to all Indigenous peoples at this time because it explained to settlers and colonial governments that Indigenous peoples had a right to the land itself. Therefore, this case proved they had lawful jurisdiction over their ancestral territories, specifically because their title had never been extinguished through a treaty.
2. Baker Lake Case 1980 - Title
The Baker Lake case arose when the Inuit people of Baker Lake became concerned about the government-licensed mining operations within their territory negatively impacting their access to hunt caribou (Elliott, 1980, p.653). The court case questioned if First Nations or Inuit held Aboriginal Title, and the Federal government created a test to determine if Aboriginal Title existed. The test required First Nations and Inuit peoples to prove:
It was an established fact they held sovereignty before Europeans came
Ancestors were part of an organized society and continue to be today
The organized society occupies the territory they are claiming Aboriginal Title over
Occupation was to the exclusion of other organized societies (Elliot, 1980, pp.657-658).
This case determined that Aboriginal Title did exist but can also co-exist with settlements or the development of non-Indigenous people.
3. Sparrow Case 1990 – Rights
The Sparrow case became one of the first Aboriginal Rights cases when a Musqueam man was arrested for fishing with a fishing net larger than allowed. The arrest was viewed as a threat to the whole nation, leading them to pursue legal action arguing for Aboriginal rights to land and resources. Sparrow used section 35 of the 1982 constitution to defend their case to create what is known today as the Sparrow Test. The Sparrow Test proves Aboriginal Rights to land and resources by:
Defining if Aboriginal rights are infringed upon - Government can infringe upon a right if they impose an undue hardship, the court decides it is unreasonable, or it prevents the right holder from exercising their right.
Define what might justify infringement by the government - Legally government can infringe upon Aboriginal rights if: Aboriginal peoples are consulted or informed, there is a valid legal objective, there is as little infringement as possible, or there is fair compensation (Salomons & Hanson, 2009).
The Sparrow case lost at the provincial level but won at the supreme court level, granting Aboriginal rights to the Musqueam Nations’ land and resources.
4. Tsilhqot’in v. BC 2014 – Title
Tsilhqot'in peoples pursued this case after heightened frustration from their wood being harvested and sold without any benefit to themselves (Gunn, 2014). Given the situation, Tsilhqot'in brought forward a case to broaden the application of Aboriginal Rights but narrow the application of Aboriginal Title. At the time, Aboriginal Title could not be proven on a territorial basis even if there was some evidence showing the claimant was the only group in a region. To allow for Aboriginal Title to be extended to claimants who were semi-nomadic, Title could be proven if:
There is sufficient evidence of occupation
Evidence of continuity of habitation of the land
There is exclusive historic occupation (CanLII, 2014)
Additionally, the case established that Aboriginal Title granted rights and access to land and all its benefits, including economic profits. Further, it determined that government must meet its fiduciary duty to obtain consent from the First Nations with Aboriginal Title. However, failing to meet consent can be still ok if the development is pressing and substantial enough and meets requirements under section 35 of the constitution. Ultimately, this case broadened the scope of Aboriginal Title while increasing government and industry requirements to meaningfully consult with Aboriginal Titleholders.
Beyond the Courts
These court cases bring hope that Indigenous rights will be respected going forward; however, in practice, the “duty to consult” is often viewed as a “means to an end” or a checkbox. Meaning meaningful consultation and consent are ultimately not given to Aboriginal Right-and-Titleholders. When this occurs, Indigenous peoples have and are taking action to defend their land outside of the courts through peaceful protests. Protests are a key tool Indigenous peoples have used to fiercely protect their rights and the land. Cases like the Fairy Creek protests in recent years have demonstrated the dedication and passion Indigenous peoples have for protecting their lands and rights.
Furthermore, actions like the “Land Back” movement advocate for Indigenous self-determination and mean, quite literally, giving the land back to Indigenous peoples to control. With the combined work of legal action and on-the-ground protests, Indigenous peoples are paving the way for future generations to experience unequivocal rights to their lands and way of life.
Courtesy of the Toronto Star
Making History
Calder, Baker, Sparrow, and Tsilhqot'in are just a few of Canada’s most pivotal cases protecting Indigenous Rights and Titles. However, they stand out as they are the first of their kind to establish Indigenous rights to their land and resources, determine Aboriginal Title existed and Title for those who are semi-nomadic, and right to economic benefits of the land. These cases have been foundational to each other and have provided critical tools to help other Indigenous peoples prove their legal Rights and Title. After years of Indigenous Rights being stripped away through colonization, Indigenous peoples are fighting back – and winning- either in the courts or on their land. Although the fight is not over and much of the work for Indigenous peoples and allies is still ahead of them, Indigenous people have proven themselves, again and again, that they are the rightful stewards of these lands. It’s about time colonial governments started treating them as so.
Courtesy of Province of British Columbia
References
CanLII. (2014). Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. Retrieved on June 13, 2022 from 2014 SCC 44 (CanLII) | Tsilhqot’in Nation v. British Columbia | CanLII
Elliott. (1980). Baker Lake and the concept of aboriginal title. Osgoode Hall Law Journal (1960), 18(4), 653. Baker Lake and the Concept of Aboriginal Title (yorku.ca)
Brenda Gunn. (2014). Case note: Tsilhqot'in Nation v British Columbia 2014 SCC 44. Indigenous Law Bulletin, 8(14), 27–29. https://doi.org/10.3316/informit.767501902265462
Salomons, T. (2009). Calder Case. Retrieved on June 13th, 2022 from Calder Case (ubc.ca)
Salomons, T. & Hanson, E. (2009). Sparrow Case. Retrieved on June 13, 2022 from Sparrow Case (ubc.ca)
Weir. (2013). "Time Immemorial" and Indigenous Rights: A Genealogy and Three Case Studies (Calder, Van der Peet, Tsilhqot'in) from British Columbia. Journal of Historical Sociology, 26(3), 383–411. https://doi.org/10.1111/johs.12028