The legal system of Canada is pluralist: its foundations lie in the English common law system, the French civil law system, and Indigenous law systems developed by the various Indigenous Nations.
Native title is the designation given to the common law doctrine of Aboriginal title in Australia, which is the recognition by Australian law that Indigenous Australians have rights and interests to their land that derive from their traditional laws and customs. The concept recognises that in certain cases there was and is a continued beneficial legal interest in land held by Indigenous peoples which survived the acquisition of radical title to the land by the Crown at the time of sovereignty. Native title can co-exist with non-Aboriginal proprietary rights and in some cases different Aboriginal groups can exercise their native title over the same land.
R v Sparrow, [1990] 1 S.C.R. 1075 was an important decision of the Supreme Court of Canada concerning the application of Aboriginal rights under section 35(1) of the Constitution Act, 1982. The Court held that Aboriginal rights, such as fishing, that were in existence in 1982 are protected under the Constitution of Canada cannot be infringed without justification on account of the government's fiduciary duty to the Aboriginal peoples of Canada.
Section 35 of the Constitution Act, 1982 provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. The section, while within the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms. The section does not define the term "aboriginal rights" or provide a closed list; some examples of the rights that section 35 has been found to protect are fishing, logging, hunting, the right to land and the right to enforcement of treaties. There remains a debate over whether the right to indigenous self-government is included within section 35. As of 2006 the Supreme Court of Canada has made no ruling on the matter. However, since 1995 the Government of Canada has had a policy recognizing the inherent right of self-government under section 35.
Delgamuukw v British Columbia, [1997] 3 SCR 1010, also known as Delgamuukw v The Queen, Delgamuukw-Gisday’wa, or simply Delgamuukw, is a ruling by the Supreme Court of Canada that contains its first comprehensive account of Aboriginal title in Canada. The Gitxsan and Wet’suwet’en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometers in northwest British Columbia. The plaintiffs lost the case at trial, but the Supreme Court of Canada allowed the appeal in part and ordered a new trial because of deficiencies relating to the pleadings and treatment of evidence. In this decision, the Court went on to describe the "nature and scope" of the protection given to Aboriginal title under section 35 of the Constitution Act, 1982, defined how a claimant can prove Aboriginal title, and clarified how the justification test from R v Sparrow applies when Aboriginal title is infringed. The decision is also important for its treatment of oral testimony as evidence of historic occupation.
Calder v British Columbia (AG) [1973] SCR 313, [1973] 4 WWR 1 was a decision by the Supreme Court of Canada. It was the first time that Canadian law acknowledged that aboriginal title to land existed prior to the colonization of the continent and was not merely derived from statutory law.
Guerin v The Queen [1984] 2 S.C.R. 335 was a landmark Supreme Court of Canada decision on Aboriginal rights where the Court first stated that the government has a fiduciary duty towards the First Nations of Canada and established Aboriginal title to be a sui generis right.
Chippewas of Sarnia Band v Canada (AG), 2000 CanLII 16991, 51 OR (3d) 641; 195 DLR (4th) 135 was a decision of the Court of Appeal for Ontario concerning aboriginal title in Canada.
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.
Canadian Aboriginal law is the body of law of Canada that concerns a variety of issues related to Indigenous peoples in Canada. Canadian Aboriginal Law is different from Canadian Indigenous law: In Canada, Indigenous Law refers to the legal traditions, customs, and practices of Indigenous peoples and groups. Aboriginal peoples as a collective noun is a specific term of art used in legal documents, including the Constitution Act, 1982, and includes First Nations, Inuit and Métis people. Canadian Aboriginal law provides certain constitutionally recognized rights to land and traditional practices. Canadian Aboriginal Law enforces and interprets certain treaties between the Crown and Indigenous people, and manages much of their interaction. A major area of Aboriginal law involves the duty to consult and accommodate.
Seneca Nation of Indians v. Christy, 162 U.S. 283 (1896), was the first litigation of aboriginal title in the United States by a tribal plaintiff in the Supreme Court of the United States since Cherokee Nation v. Georgia (1831). It was the first such litigation by an indigenous plaintiff since Fellows v. Blacksmith (1857) and its companion case of New York ex rel. Cutler v. Dibble (1858). The New York courts held that the 1788 Phelps and Gorham Purchase did not violate the Nonintercourse Act, one of the provisions of which prohibits purchases of Indian lands without the approval of the federal government, and that the Seneca Nation of New York was barred by the state statute of limitations from challenging the transfer of title. The U.S. Supreme Court declined to review the merits of lower court ruling because of the adequate and independent state grounds doctrine.
Peter W. Hutchins is a lawyer specializing in Canadian Aboriginal law in private practice based in Montréal, Québec at Hutchins Legal Inc. His career of almost forty years has been devoted exclusively to advancing the rights of Aboriginal peoples. He is "one of [Canada's] top litigators in aboriginal cases".
Daniels v Canada , 2016 SCC 12 is a case of the Supreme Court of Canada, which ruled that Métis and non-status Indians are "Indians" for the purpose of s 91(24) of the Constitution Act, 1867.
Chippewas of the Thames First Nation is an Anishinaabe (Ojibway) First Nations band government located 24 kilometres (15 mi) west of St. Thomas, in southwest Ontario, Canada. Their land base is the 3,652.60 hectares Chippewas of the Thames First Nation 42 reserve, which almost entirely surrounds the separate reserve of Munsee-Delaware 1. As of January 2014, their registered population is 2,738 people with 957 living on reserve.
Tsilhqot'in Nation v British Columbia is a landmark decision of the Supreme Court of Canada that established Aboriginal land title for the Tsilhqot'in First Nation, with larger effects. As a result of the landmark decision, provinces cannot unilaterally claim a right to engage in clearcut logging on lands protected by Aboriginal title; they must engage in meaningful consultation with the title holder before they proceed. Although the Aboriginal title holder does not have to consent to the activity, meaningful consultation is required before infringement of the right can take place.
In Canada, the duty to consult and accommodate with Aboriginal peoples arises when the Crown contemplates actions or decisions that may affect Aboriginal or Treaty rights. This duty arises most often in the context of natural resource extraction such as mining, forestry, oil, and gas.
Ktunaxa Nation v. British Columbia is a decision of the Supreme Court of Canada which concerns whether or not a First Nation can block real estate development on sacred sites by virtue of the concepts of freedom of religion and the duty to consult and accommodate.
The Council of the Haida Nation ("CHN") is the elected government of the Haida Nation. The council consists of a president and vice-president elected by popular vote, twelve regional representatives from four electoral regions, and one appointed representative from each of the Old Massett Village Council and Skidegate Band Council.
Indigenous peoples in Canada demand to have their land rights and their Aboriginal titles respected by the Canadian government. These outstanding land claims are some of the main political issues facing Indigenous peoples today.
Terri-Lynn Williams-Davidson is a Canadian indigenous lawyer, artist, activist and author and a member of the Raven Clan from the Haida Nation. As a lawyer, Williams-Davidson specializes in aboriginal-environmental law, having represented the Haida Nation at all levels of court since 1996 and notably participating in the litigation of the Haida Nation's TFL39 Case to protect the old-growth forests of Haida Gwaii, a case that effectively altered the government's stance on the consultation and accommodation of Aboriginal Rights.
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