Tag Archives: Supreme Court of Canada

Supreme Court affirms American Indigenous man’s right to hunt in Canada

Supreme Court affirms American Indigenous man’s right to hunt in Canada

OTTAWA – The Supreme Court of Canada says an American Indigenous man has a constitutionally protected right to hunt in British Columbia given his people’s historic ties to the region.

The decision today comes in the case of Richard Lee Desautel, a U.S. citizen who was charged with hunting without a licence after shooting an elk near Castlegar, B.C.

Desautel defended his actions on the basis he had an Aboriginal right to hunt protected by section 35(1) of Canada’s Constitution Act.

Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes of Washington state, a successor of the Sinixt people, whose ancestral territory extended into B.C.

The trial judge found the sections of B.C.’s Wildlife Act under which Desautel was charged had infringed his constitutional right to hunt in the province.

The decision was upheld by the B.C. Supreme Court and the province’s Court of Appeal, prompting the Crown to take its case to the Supreme Court of Canada.

This report by The Canadian Press was first published April 23, 2021.


Supreme Court says companies must pay for mercury-contaminated mill site at Grassy Narrows

Ontario government ordered 2 companies to do remedial work 8 years ago

Two companies are on the hook for looking after a mercury-contaminated site near Ontario’s Grassy Narrows First Nation, the Supreme Court of Canada has ruled.

The 4-3 decision Friday brought some clarity to a long-running dispute over one element of the legacy of environmental poisoning that has caused significant health problems for many residents.

Eight years ago, the Ontario government ordered Weyerhaeuser Co. and a firm that later became Resolute Forest Products to care for a mercury waste-disposal site in Dryden, Ont., where toxic material from a pulp-and-paper mill’s operations entered the English-Wabigoon River system in the 1960s.

The order obligated the two companies to repair site erosion, do water testing, file annual reports, prevent any leaks and give the Ontario Environment Ministry $273,063 as financial assurance with respect to the site.

The companies claimed that an indemnity granted in 1985 to the owners of the paper facility at the time — part of a settlement with the Grassy Narrows and Islington First Nations — applied to them as well, but the province disagreed.

An Ontario judge ruled in favour of the companies in 2016, saying the language of the indemnity should cover the two subsequent owners as well.

However, the Ontario Court of Appeal found Resolute was not entitled to indemnification and said the lower court should decide whether it applied to Weyerhaeuser.

In its decision, the Supreme Court said the 1985 indemnity does not apply to the province’s 2011 environmental order, meaning the companies are liable for the costs of carrying it out.

A majority of the high court substantially agreed with the Ontario appeal-court’s reasoning, concluding the judge who initially heard the case made “palpable and overriding errors of fact.”

The Canadian Press · Posted: Dec 06, 2019


Metis, Non-Status Indians Push For ‘Equality And Clarity’ At Supreme Court


Dwight Dorey, National Chief of the Congress of Aboriginal Peoples, speaks to CTV’s Canada AM from Winnipeg, on Oct. 9, 2015.

CTV News | Published Oct 9, 2015

Canada’s Metis and non-status Indians are hoping their 16-year court case will finally be resolved at the Supreme Court of Canada, where they’re pushing for official recognition under the Constitution Act, along with access to all the government programs and services that entails.

Dwight Dorey, National Chief of the Congress of Aboriginal Peoples, championed the cause of Metis and non-status Indians at the Supreme Court on Thursday, as he pushed for more “clarity” and “equality” under Section 91 (24) of the Constitution Act.

Dorey is hoping to obtain official status for the estimated 600,000 people he represents. He’s also pushing for clarity on whether Metis and non-status Indians fall under the jurisdiction of the federal or provincial governments.

“In the past, federal and provincial governments tend to toss that ball back and forth, so we’re looking for clarity through the Supreme Court case,” Dorey told CTV’s Canada AM on Friday. He added that the push for official status is “a matter of due respect, it’s a matter of recognition, and it’s a matter of not being forgotten anymore.”

Dorey is also pushing for more equality in how the federal government consults with Aboriginal groups. “All aboriginal designated groups and organizations have a right to be consulted and negotiated with,” he said.

Section 35 of the Constitution Act reaffirms the rights of Aboriginal people, but it does not define them. Dorey wants to address that, and have Metis and non-status Indians included in the definition.

Dorey says he and his fellow plaintiffs knew the case would take at least 10 years when they launched it, but that 10 years has stretched to 16. He blamed the federal government for the delay, and accused federal officials of trying to get the case thrown out through a series of “blocking attempts” and “legal wranglings.”

In 2011, a Federal Court ruled that Metis and non-status Indians fall under federal jurisdiction, but the federal government appealed the case. Three years later, the Federal Court of Appeal ruled that Metis could stay under federal jurisdiction, but non-status Indians could not.


Canada Responds to Tsilhqot’in Decision: Extinguishment or Nothing!

Image source: warriorpublications.wordpress.com

Image source: warriorpublications.wordpress.com

By Russell Diabo and Shiri Pasternak | New Socialist 08 Feb 2015

This is the third in a three-part series on the landmark Supreme Court of Canada Tsilhqot’in v. British Columbia decision last June, first published in First Nations Strategic Bulletin. Part 1, “The Tsilhqot’in Decision and Canada’s First Nations Termination Policies” can be found here. Part 2, “The Tsilhqot’in Decision and Indigenous Self-Determination” is here.

“Our government believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements,” stated Minister of Aboriginal Affairs and Northern Development Canada (AANDC) Bernard Valcourt on the day the final Tsilhqot’in decision came down in June.

After 25 years of litigation, millions of dollars in legal fees, and 399 days in court for the Supreme Court hearing alone, the Tsilhqot’in people might have preferred a negotiated settlement, too. But not the kind the Government of Canada was offering. The Minister was referring to the Comprehensive Land Claims policy, the Government’s preferred method for dealing with unceded Indigenous territory in Canada.

For critics of Canada’s Comprehensive Land Claims policy, the federal government’s response to the Supreme Court decision conveyed an automatic and outright denial of the Court’s watershed finding that the Tsilhqot’in Nation held underlying Aboriginal title to their territorial lands. The land claims policy, referred to by critics as the “termination tables,” requires Aboriginal groups to cede their Aboriginal title and circumscribe their Aboriginal rights upon settlement through the use of two legal techniques: “Modification” of Aboriginal Title and/or “Non-Assertion” of rights.

To push the land claims policy at a moment when the Supreme Court of Canada successfully challenged one of its worst aspects – extinguishment – was a stark message for the federal government to send.

At a press conference in the weeks following Canada’s initial reaction, Minister Valcourt expanded on his Department’s approach to unceded Indigenous lands, now evading any mention of the Tsilhqot’in decision.

He introduced new measures to promote “reconciliation” in advance of and outside of the Comprehensive Land Claims policy and to accelerate the signing of “modern treaty” agreements. He also promised the introduction of new consultation guidelines for government and industry with regards to First Nations over natural resources.

Would these changes reflect the recognition of Aboriginal title won under Tsilhqot’in?

Consultation as extinguishment

At the press conference, Minister Valcourt announced the appointment of Douglas Eyford as the Ministerial Special Representative to assist Canada to reform the Comprehensive Land Claims policy. This appointment signals an end to the Assembly of First Nations (AFN) – Canada Comprehensive Claims Senior Oversight Committee (SOC). Prime Minister Harper established SOC during a meeting with the Assembly of First Nations in Ottawa on January 11, 2013 in order to address grievances with the policy.

But the appointment of Eyford marks the real direction the government is taking to address First Nations’ grievances. In 2013, Eyford acted as the Government’s Special Federal Representative on West Coast Energy Infrastructure. The “Eyford Report” focused on consultation and engagement with First Nations over energy infrastructure. The report mentions Aboriginal title only once, in passing. Thus, Eyford has been instrumental in creating the template for denying Aboriginal title through consultative mechanisms.

The focus of consultation in his 2013 report is on “reconciliation.” However, it is clear from the report that it is Indigenous peoples who must do all of the reconciling of their pre-existing sovereignty with Canadian claims to underlying title.

The mandate of the Eyford Report is linked to the Government of Canada’s agenda of expanding export markets for oil and gas. Spelled out early in the report, Canada’s priority is the need to “capitalize” on global energy demands, therefore “to construct pipelines and terminals to deliver oil and natural gas to tidewater.”

The Projects listed as crucial here are the expansion of Kinder Morgan’s existing Trans Mountain Pipeline, Enbridge’s Northern Gateway Pipeline, and several proposed natural gas pipelines and related upstream developments. Projects also include the development of liquefied natural gas (LNG) facilities in Kitimat and Prince Rupert, tied most directly to potential Asian markets.

The “impediment” to Canada’s diversified energy market – crucial because Canada’s principal customer is the United States, which is expanding its energy sources – is that Aboriginal peoples hold constitutionally protected title and rights with which industry and government must legally comply. In other words, the objective of Aboriginal Affairs’ recent announcement on the land claims policy was not to reconcile the policy with the Supreme Court’s findings on Aboriginal title, but to accelerate the policy framework of Aboriginal title extinguishment, particularly in the areas of major resource development projects like the proposed pipelines in British Columbia.

The Black Box

The federal government is fighting tooth and nail against ceding an inch of legal authority over land despite the pronouncement from the highest court in the land. According to figures recently released by Parliament (as reported in the Law Times), oil and gas disputes have been the top expense for AANDC for the past three years.

The federal government has been either fighting First Nations in court – the last resort for Indigenous peoples trying to defend and protect their lands – or pushing groups into the Comprehensive Land Claims policy, many of them through the British Columbia Treaty Commission process, since 50 percent of the current Comprehensive Land Claims negotiation tables are in British Columbia.

So, what should the Government of Canada’s response have been to the Tsilhqot’in decision?

When the SCC Delgamuukw (1997) decision came down, recognizing that Aboriginal title underlies provincial fee simple interest in the land, by a resolution of the Chiefs-inAssembly, the AFN established a group to leverage the Supreme Court decision to change the Comprehensive Land Claims policy. The AFN Delgamuukw Strategic Implementation Committee (DISC) commissioned a legal analysis, prepared by Mark Stevenson, to find any discrepancies between the policy and the decision.

Two initiatives sprung from AFN-DISC: an Aboriginal Title Alliance and an aborted judicial review undertaken by the Assembly of First Nations to examine the Minister of Indian Affairs’ decision not to review the policy, given the ground-breaking ruling. Both of these efforts failed due to internal division between First Nations leaders who had agreed to negotiate under Canada’s Comprehensive Land Claims policy and those First Nations leaders who are not negotiating under the Comprehensive Claims policy.

Perhaps a new Aboriginal Title Alliance will form today. Are there too many Aboriginal groups at the Comprehensive Land Claims negotiating tables that have borrowed money from the federal government for land claims negotiations to exert any pressure on the government to change the policy, as has been the case in the past? Or can a political movement of Aboriginal Title holding groups build the unity and strength to hold Canada to account for administering illegal unjust policies that violate Aboriginal title, rights and international protocols protecting Indigenous peoples from land dispossession?

There are fundamental changes that Canada could make to reform the Comprehensive Land Claims policy for the better. In her decision, Justice McLachlin specifically rejected what UBCIC Grand Chief Stewart Philip called the “postage stamp” theory of Aboriginal title. Instead, the court opted for a more expansive understanding of Indigenous land rights over a broad territorial range. Yet the land selection process under the Comprehensive Land Claims policy is precisely the kind of site-specific approach to addressing underlying Aboriginal title that the SCC rejected. The entire territorial range including private lands should be on the table at least for compensation, and Aboriginal title should not be extinguished upon settlement or transformed into private property.

Currently, there is no way to get a Declaration of Aboriginal Title in Canada without enduring a costly and timely research process and court case, which most groups cannot afford. The Comprehensive Land Claims policy is the sole federal policy by which unceded lands may be settled, yet it requires that bands extinguish their pre-existing Aboriginal title through a negotiated title conversion process into fee simple title.

What alternatives exist? Valcourt clearly signaled that Canada is not willing to change the structure of settler colonialism in Canada. Only a political movement of Indigenous Peoples and supporters from Canadian civil society who support justice and reconciliation with Indigenous peoples will convince him otherwise.

Russell Diabo is a member of the Mohawk Nation at Kahnawake. He is Editor and Publisher of the First Nations Strategic Bulletin, a web-based newsletter available from the Canada Library and Archives website in Electronic Collections. For more information, contact rdiabo [at ] rogers.com.

Shiri Pasternak is a researcher and activist who has worked closely with the Algonquins of Barriere Lake as an ally in their resistance to the federal land claims process in Canada. She is a founding member of Barriere Lake Solidarity, a member of the Indigenous Sovereignty and Solidarity Network in Toronto, and an ally in the Defenders of the Land network.

An earlier version of this article was published in First Nations Strategic Bulletin 12, 8-10 (August-October 2014). Part 1 in this series, “The Tsilhqot’in Decision and Canada’s First Nations Termination Policies” can be found here. Part 2, “The Tsilhqot’in Decision and Indigenous Self-Determination” is here.

The indigenous land rights ruling that could transform Canada

Fish Lake on Tsilhqot’in territory in British Columbia, where the Indigenous Tsilhqot’in nation has prevented a copper and gold mine from being built. Photograph: Friends of the Nemaiah Valley

Fish Lake on Tsilhqot’in territory in British Columbia, where the Indigenous Tsilhqot’in nation has prevented a copper and gold mine from being built. Photograph: Friends of the Nemaiah Valley

October 21  2014, Guardian: 

Indigenous rights offer a path to a radically more just and sustainable country – which is why the Canadian government is bent on eliminating them

The unrest is palpable. In First Nations across Canada, word is spreading of a historic court ruling recognizing Indigenous land rights. And the murmurs are turning to action: an eviction notice issued to a railway company in British Columbia; a park occupied in Vancouver; lawsuits launched against the Enbridge tar sands pipeline; a government deal reconsidered by Ontario Algonquins; and sovereignty declared by the Atikamekw in Quebec.

These First Nations have been emboldened by this summer’s Supreme Court of Canada William decision, which recognized the aboriginal title of the Tsilhqot’in nation to 1750 square kilometres of their land in central British Columbia – not outright ownership, but the right to use and manage the land and to reap its economic benefits.

The ruling affects all “unceded” territory in Canada – those lands never signed away through a treaty or conquered by war. Which means that over an enormous land-mass – most of British Columbia, large parts of Quebec and Atlantic Canada, and a number of other spots – a new legal landscape is emerging that offers the prospect of much more responsible land stewardship.

First Nations are starting to act accordingly, and none more so than the Tsilhqot’in. They’ve declared a tribal park over a swath of their territory. And they’ve announced their own policy on mining – a vision that leaves room for its possibility, but on much more strict environmental terms. Earlier this month they erected a totem pole to overlook a sacred area where copper and gold miner Taseko has for years been controversially attempting to establish itself; no mine will ever be built there.

And the Canadian government’s response? Far from embracing these newly recognized Indigenous land rights, they are trying to accelerate their elimination. The court has definitively told Canada to accept the reality of aboriginal title: the government is doing everything in its power to deny it.

Canadians can be pardoned for believing that when the country’s highest court renders a decision, the government clicks their heels and sets themselves to implementing it. The judiciary directs, the executive branch follows: that’s how we’re taught it works. But it doesn’t always – and especially not when what’s at stake is the land at the heart of Canada’s resource extraction.

The new land rights ruling is now clashing directly with the Canadian government’s method for cementing their grip on lands and resources. It’s a negotiating policy whose name – the so-called Comprehensive Land Claims – is intended to make your eyes glaze over. But its bureaucratic clothing disguises the government’s naked ambition: to grab as much of Indigenous peoples’ land as possible.

This is what dispossession by negotiation looks like. The government demands that First Nations trade away – or in the original term, to “extinguish” – their rights to 95 percent of their traditional territory. Their return is some money and small parcels of land, but insidiously, as private property, instead of in the collective way that Indigenous peoples have long held and stewarded it. And First Nations need to provide costly, exhaustive proof of their rights to their own land, for which they have amassed a stunning $700 million in debt – a debt the government doesn’t think twice about using to arm-twist.

Despite the pressure, most First Nations have not yet signed their names to these crooked deals – especially when the Supreme Court is simultaneously directing the government to reconcile with First Nations and share the land. But the Supreme Court’s confirmation that this approach is unconstitutional and illegal matters little to the government. What enables them to flout their own legal system is that Canadians remain scarcely aware of it.

Acting without public scrutiny, Prime Minister Stephen Harper is trying to shore up support for this policy – now forty years old – to finally secure the elimination of Indigenous land rights. The process is led by the same man, Douglas Eyford, who has been Harper’s advisor on getting tar sands pipelines and energy projects built in western Canada. That is no coincidence. The government is growing more desperate to remove the biggest obstacle that stands in the way of a corporate bonanza for dirty fossil fuels: the unceded aboriginal title of First Nations – backed now by the Supreme Court of Canada.

A public commenting period opened during the government’s pr blitz has created an opportunity for the indigenous rights movement and concerned Canadians to demand a long-overdue change in the government’s behaviour. Recognizing aboriginal title, restoring lands to First Nations management, would be to embrace the diversity and vision we desperately need in this moment of ecological and economic crisis.

Because the government agenda is not just about extinguishing Indigenous land rights. It’s about extinguishing another way of seeing the world. About extinguishing economic models that prize interdependence with the living world, that recognize prosperity isn’t secured by the endless depletion of resources. And about extinguishing a love for the land, a love rooted in the unique boundaries and beauty of a place.

Chief Roger Williams (left) at the the Supreme Court of Canada (Photo: Pei-Ju Wang)

Chief Roger Williams (left) at the the Supreme Court of Canada (Photo: Pei-Ju Wang)

“The land is the most important thing,” Tsilhqot’in Chief Roger William told me. “Our songs, our place names, our history, our stories – they come from the land that we are a part of. All of it is inter-related with who we are.”

The few days I spent in Tsilhqot’in territory five years ago made that vivid. It is a land of snow-capped mountains – Ts’il?os, who in their stories was a man transformed into giant rock after separating from his wife. Wild horses stalk the valleys. Salmon smoke on drying racks. The Tsilhqot’in carefully protect and nurture these fish – running stronger in their rivers than anywhere else in the province.

That’s why the habit of government officials, of media and even of Supreme Court judges to call the Tsilhqoti’in “nomadic” bothers William so much: his people have lived on these lands for thousands of years, while it is non-natives who are constantly moving and resettling. And what could be more nomadic and transient than the extractive industry itself – grabbing what resources and profits it can before abandoning one area for another.

As Canadians look more closely, they are discovering that the unceded status of vast territories across this country is not a threat, as they’ve long been told. It is a tremendous gift, protected with love by Indigenous nations over generations, to be seized for the possibilities it now offers for governing the land in a radically more just and sustainable way for everyone.

In this battle between the love of the land and a drive for its destruction, those behind the extractive economy have everything to lose and Indigenous peoples everything to win. The rest of us, depending on our stand, have a transformed country to gain.