Court Cases Reviewed

St. Catherine’s Milling and Lumber Co. v. The Queen (1888)

A dispute over who owned land in Treaty 3 territory (between the provincial and federal government). 

Judicial Committee of the Privy Council (JCPC), the highest court for Canada at the time made the decision (prior to the creation of a SCC).

• The federal government issued a timber license to St. Catherine’s Milling.

• Ontario claimed that land and its resources belonged to the province.

• The Privy Council ruled that Indigenous title was a “personal and usufructuary right” under the Crown, a very narrow interpretation that limited Indigenous land rights for almost 100 years (meaning that First Nations people did not own the land).

  • Usufructuary = a right to “use” the land but not own it

  • The right depends entirely on the Crown

  • Indigenous peoples do not hold underlying title

  • Crown sovereignty overrides Indigenous authority

Re Eskimos (Reference re: Eskimos, 1939)

Whether Inuit were considered “Indians” under section 91(24) of the British North America Act (1867).

• Impact: Court ruled Inuit fall under federal jurisdiction, shaping federal responsibility for Inuit peoples.

Daniels v. Canada (2016)

Métis and non-status Indians are included under s. 91(24) federal jurisdiction.

• Impact: Clarified federal responsibility and ended decades of jurisdictional ambiguity.

R. v. Drybones (1969)

A provision of the Indian Act criminalized alcohol use off-reserve for status Indians.

• A status Indian was charged with being intoxicated off-reserve (illegal under Indian Act).

• Only Indigenous people could be charged, blatant discrimination.

• Law ruled inoperative because it violated the Canadian Bill of Rights.
  This was the first time a law was struck down for violating equality rights, an early precursor to Charter equality law.

Impact: Ruled inoperative because it violated the Canadian Bill of Rights’ equality guarantee, a major early equality case.

Lavell-Bédard (A.G. Canada v. Lavell; Isaac v. Bédard, 1974)

Indian Act rules stripping status from women who married non-status men were upheld.
Impact: A major gender equality setback; helped inspire the constitutional push for Section 15 equality rights and later Bill C-31 (1985).

• Major defeat for gender equality. Sparked Indigenous women’s activism and pushed for Charter s. 15 equality, leading to Bill C-31 (1985) which reinstated many women and children.

Calder v. A.G. British Columbia (1973)

Recognition that Aboriginal title existed prior to colonization, independent of treaties.

• Recognized Aboriginal title existed before colonization.
  Context: Nisga’a Nation fought for recognition of their land rights.

• Although the case was dismissed on a technicality, 3 judges confirmed Aboriginal title exists independent of treaties.

• This led Canada to create the modern land claims (comprehensive claims) process.

Impact: Forced Canada to create the modern land claims process. Was the first Aboriginal title court case to come after the St. Catherine’s Milling Court Case. 

R. v. Sparrow (1990)

Musqueam fisher charged for using a net longer than allowed.

• First major interpretation of s. 35(1) of the Constitution Act.

•  Recognized inherent Aboriginal rights

• Created the Sparrow test to justify infringements

• Prioritized Indigenous food/social/ceremonial fishing over commercial and recreational use

• Foundations for modern rights jurisprudence (theory of law). 

Impact: Created the Sparrow Test for justifying infringements of Aboriginal rights; affirmed Indigenous fishing rights.

R. v. Van der Peet (1996)

Created the Aboriginal rights test: rights must be integral to the distinctive culture before European contact.

Impact: Defines how courts identify protected Aboriginal rights.

R. v. Gladstone (1996)

Heiltsuk commercial herring spawn trade.

Impact: Recognized a commercial Aboriginal right and allowed broader limits based on economic fairness.

R. v. Smokehouse / R. v. NTC Smokehouse (1996)

Dealt with commercial fish trade and licensing.

Impact: Confirmed limits on commercial fishing even where rights exist; clarified the post-Van der Peet framework.

Keewatin (Grassy Narrows First Nation v. Ontario, 2014 SCC)

Whether Ontario or Canada had authority to “take up” Treaty 3 lands.

The Keewatin/Grassy Narrows case held that Ontario, despite not being the original treaty signatory, has the constitutional authority to “take up” Treaty 3 lands, but must honour treaty rights through consultation and justification.

Impact: Court ruled Ontario has the power to take up lands under Treaty 3, not just the federal government.

Delgamuukw v. British Columbia (1997)

Landmark case defining Aboriginal title.

• Title = a right to the land itself, not just use

• Includes decision-making power and economic benefits

• Crown must justify infringements

• Oral histories must be accepted as evidence

• Set the stage for Tsilhqot’in SCC.

Impact: Aboriginal title is a right to the land itself, including decision-making; oral histories must be accepted as evidence.

Tsilhqot’in Nation v. British Columbia (2014)

First-ever declaration of Aboriginal title to a specific land area.
Context: A semi-nomadic nation asserting territorial occupation.
Impact:

• Title = control, benefit, and veto-like authority

• Crown cannot authorize development without meeting a strict justification test

• Huge shift toward Indigenous territorial rights.

Impact: Title includes control, benefit, and veto-like power unless the Crown meets a high justification test.

Haida Nation v. British Columbia (2004)

The Crown has a duty to consult Indigenous peoples when decisions may impact rights, even before proof of title.

The duty to consult arises when the Crown knows or should know of potential rights and contemplates action that may affect them.
Impact:

• Must consult even before title is proven

• Consultation must be meaningful and aimed at accommodation

• Foundations of modern consultation law.

Impact: Consultation must be meaningful.

Taku River Tlingit First Nation v. British Columbia (2004)

Affirmed the duty to consult during environmental assessments.

Environmental assessments must include meaningful consultation and accommodation.
Impact: Reinforced Haida; consultation must be adapted to the strength of claim and severity of infringement.

Clyde River (Hamlet) v. Petroleum Geo-Services (2017 SCC)

Seismic testing in Inuit waters.

• Consultation was inadequate

• Regulatory processes do not replace the Crown’s duty

• Project was quashed
  Strengthened consultation standards.

Impact: Crown breached duty to consult; regulatory processes do not replace proper consultation.

R. v. Sioui (1990)

Doctrine of treaty interpretation: treaties must be read liberally and in favour of Indigenous peoples.

Recognized that historic treaties must be interpreted liberally, generously, and in favour of Indigenous peoples.

• Impact: Validated Huron-Wendat treaty rights for ceremonies and traditional practices in provincial parks.

• Confirmed ceremonial, cultural, and land-use rights in old agreements.

R. v. Marshall (1999)

Mi’kmaq treaties protect a right to earn a moderate livelihood from fishing.

Impact:

• Economic treaty right

• Led to major fisheries negotiations and conflict

• Expanded understanding of 18th-century treaty promises (Peace and Friendship Treaties, that were meant for relationships at the time). 

  • This guaranteed the right to hunt and fish.

  • Although the Peace and Friendship Treaties were not signed for land, they still guaranteed specific rights.

Impact: Expanded economic treaty rights.

Restoule v. Ontario (2018/2021 ONCA)

Annuities and Treaty 5/1850 Robinson Treaties. Whether annuities in the Robinson Treaties should increase as resource revenues increased. Specifically related to the Augmentation Clause in the Treaty. This promised that the First Nations would be compensated as the costs of natural resource extraction on their territory increased.

Impact:

• Crown has a duty to revisit annuities

• Crown must act with honour

• Recognizes economic aspects of treaty relationships.

• Court ruled the Crown must increase treaty annuities when resource revenues rise; Crown must act honourably.

R. v. Powley (2003)

Recognized Métis harvesting rights under s. 35.

• Métis community

• Ancestral connection

• Contemporary community acceptance
  Confirmed Métis harvesting rights.

Impact: Created the Powley Test to identify Métis rights-bearing communities.

Manitoba Métis Federation v. Canada (2013 SCC)

Canada failed to implement the land promises in the Manitoba Act (s. 31) honourably. Turning point for federal Metis relations. This did not award any land or money though.

• Breach of honour of the Crown

• Not a land-back ruling, but paved the way for Métis negotiations, self-government recognition, and land claims.

Impact: Government breached the honour of the Crown; laid groundwork for Métis self-government and negotiations. Impacted later agreements such as

• The 2016 Canada & MMF Framework Agreement

• The 2021 Manitoba Métis Recognition and Implementation Agreement

• The 2023 Métis Self-Government Recognition“Treaty” Agreement