Influential Indigenous Rights Court Cases in Canada

1. Calder et al. v. Attorney General of British Columbia (1973)

The Calder case addressed the existence of Aboriginal title to Nisga’a lands in British Columbia. Nisga’a chief Frank Calder brought the case to the Supreme Court of Canada to argue for Nisga’a title to their lands. Ultimately, Calder lost the case on a technicality. However, the Supreme Court’s ruling acknowledged Aboriginal title. While the case did not directly result in recognition of Nisga’a title to the land, it was foundational in the Nisga’a Treaty that took effect in 2000.

2. R. v. Sparrow (1990)

The Sparrow case confirmed the Musqueam right to fish as an ancestral right that was not removed by legislation like the Constitution Act, 1982. Additionally, the Supreme Court of Canada established the “Sparrow test” to determine what counts as a right protected by section 35 of the Constitution Act, 1982 and when the government may infringe upon these rights. The Sparrow test first asks if the government has infringed upon a right. Infringement of a right is confirmed if it creates “undue hardship” on a First Nation, is recognized by the court as “unreasonable” or removes the ability of the rights holder to exercise their right in the way they prefer. The court then recognized that rights can be infringed upon if there is a “valid legislative objective” like conservation, is the most minor infringement possible, is fairly compensated, and consultation has been completed on conservation measures being implemented.

3. R. v. Sioui (1990)

The Sioui case confirmed that a letter signed by General Murray in 1760 serves as a treaty with the Wendat (Huron) and that it protected the “ancestral rights” of the Sioui family in their cutting trees and building a fire in Jacques-Cartier Park. The court’s decision required courts to consider treaties and their promises from a “just, broad and liberal” perspective, beyond solely what is written within the document. It affirmed the importance of understanding the “spirit and intent” of treaties from the perspectives of Indigenous peoples who signed them.

4. R. v. Van der Peet (1996)

The Van der Peet case further defined and limited Indigenous rights recognized in the Sparrow case. In particular, the Van der Peet case established that selling fish harvested under food and ceremonial fishing licences was not an Indigenous right. This case established the “Van der Peet test,” which requires that, for an activity to be considered an Indigenous right, it “must be an element of a practice, custom or tradition integral to the distinct culture of the aboriginal group claiming the right.” This effectively limits what can constitute an Indigenous right under section 35. Additionally, the court stated that Indigenous oral histories must be considered in future cases.

5. Delgamuukw v. British Columbia (1997)

The Delgamuukw case addressed questions related to Aboriginal title. In particular, the Supreme Court of Canada held that Aboriginal title is an ancestral right protected by section 35 of the Constitution Act, 1982. The court also reaffirmed the importance of Indigenous oral history as evidence in court cases that it first discussed in the Van der Peet case.

6. R. v. Marshall (1999)

The Marshall case recognized hunting and fishing rights established in the Peace and Friendship Treaties of 1760–61. The case was brought to the Supreme Court of Canada by Donald Marshall Jr. Marshall was charged with selling approximately 210 kg (463 lb) of eel he caught using an illegal net. He harvested the eel without a licence during a time in which the season was closed. The Supreme Court of Canada recognized the Mi’kmaw right to earn a “moderate livelihood” from selling products gained through traditional harvesting activities.

7. R. v. Powley (2003)

The Powley case recognized Métis hunting rights as Indigenous rights under section 35 of the Constitution Act, 1982. In this case, Steve and Roddy Powley were charged for shooting a bull moose near Sault Ste Marie, Ontario. They challenged their charges, claiming they had an Indigenous right to hunt as Métis people. The Supreme Court of Canada agreed with the Powleys and established the Powley test. This “test” is used to determine who qualifies for Métis rights and what those rights are. The case recognized Métis as a distinct people.

8. McIvor v. Canada (2007)

The McIvor case addressed gender discrimination within the Indian Act. In the past, the Indian Act established that status Indian women who married non-status men would lose their status. In 1985, Bill C-31 removed this clause to address gender-based discrimination. However, women who regained their status after the passing of Bill C-31 were not able to pass on their Indian status in the same way status men were. Sharon McIvor regained her status with Bill C-31. However, she was unable to pass her status on to her grandchildren if both of their parents did not have status, a challenge status men did not face. She argued this continued gender-based discrimination, which was affirmed by the British Columbia Supreme Court in 2007. As a result, the federal government introduced Bill C-3 to remove this discrimination.

9. Manitoba Metis Federation Inc. v. Canada (2013)

The Manitoba Metis Federation (MMF) case addressed the federal government’s implementation of sections 31 and 32 of the Manitoba Act, 1870. These sections of the Manitoba Act, 1870 established land grant provisions for Métis children totalling 1.4 million acres and recognized Métis land ownership when Manitoba entered Confederation. However, the MMF argued that the federal government did not fulfill these provisions of the Act. Despite losing two court cases, one in 2007 and an appeal in 2010, the Supreme Court of Canada in 2013 agreed that the federal government failed to fulfill section 31, the land grant provision. As a result of this decision, the federal government and the MMF signed a memorandum of understanding in 2016 to address this issue.

10. Tsilhqot’in Nation v. British Columbia (2014)

The Tsilhqot’in case recognized the Aboriginal title of the Tsilhqot’in Nation to an area, nearly 2,000 sq. km in size, that they claimed in British Columbia. The Supreme Court’s decision affirmed the importance of “regular and exclusive use of land” to claims of Aboriginal title and stated that when courts determine this occupation and use, they must be culturally sensitive to the particular Indigenous people’s culture and way of life. In particular, this means that Aboriginal title can be claimed to both lands that were intensively used, like villages, as well as less intensively used territory, like hunting territories. Additionally, the court stated that BC failed in its duty to consult regarding logging licences as a result of the Tsilhqot’in Nation’s Aboriginal title. It established that government must obtain consent or complete its duty to consult on projects within Aboriginal title-held territory.