Key legal updates on Aboriginal rights Key legal updates on Aboriginal rights

Aboriginal rights

The doctrine of Aboriginal rights attempts to reconcile the pre-existing laws and interests of Indigenous societies with the Crown’s sovereignty over Canada. With the passage of section 35 of the Constitution Act, 1982, Aboriginal rights became constitutionally protected. To be an Aboriginal right and enjoy constitutional protection, an activity “must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right” before contact with European nations.^[1] The last couple of years saw several important court rulings on Aboriginal rights, including landmark cases at the Supreme Court of Canada.

When Aboriginal rights arise

In R. c. Montour,^[2] two members of the Mohawk First Nation were charged with importing tobacco from the United States without paying the required duties under the Excise Tax Act. The defendants asked the Court to permanently stay the charges, arguing that the Mohawk had an Aboriginal right to trade in tobacco. The Québec Superior Court granted the stay. Importantly, it held that the Van der Peet test for Aboriginal rights had to be reconsidered. The trial judge found that the Van der Peet test was more suited to pre-modern practices such as hunting and fishing and was inconsistent with the broad rights to self-determination recognized by the United Nations Declaration on the Rights of Indigenous Peoples [PDF] (UNDRIP).

Under the Montour Court’s reformulated test, identifiable collective rights of Aboriginal groups will be protected under the Constitution if they are also protected under the First Nation’s traditional legal system. Collective rights are interpreted broadly; here, the Court held that the Mohawk people had a collective right to “pursue economic development” and that the trade in tobacco was an exercise of that traditional right. If the Montour test is upheld on appeal, it could potentially expand the scope of Aboriginal rights claims to include modern economic activities.

Aboriginal rights and the Charter

In Dickson v. Vuntut Gwitchin First Nation,^[3] which we discussed in a previous Osler Update, the Supreme Court of Canada settled important questions regarding the interplay between the collective rights of Indigenous Peoples and individual rights under the Canadian Charter of Rights and Freedoms.

The Vuntut Gwitchin First Nation (VGFN) constitution includes a residency requirement that all chiefs and councillors must reside on VGFN’s settlement land. The claimant sought to stand for election as a VGFN councillor, but resides roughly 800 kilometres south of VGFN’s settlement land. The claimant argued that this residency requirement was discriminatory and violated section 15 of the Charter. VGFN argued that the Charter does not apply to it as a self‑governing First Nation. In the alternative, VGFN argued that the residency requirement was shielded from the Charter’s other provisions by section 25, which provides that Charter rights cannot be interpreted to “abrogate or derogate from” Aboriginal or treaty rights.

The Supreme Court of Canada confirmed that the Charter may apply directly to First Nation governments. For the first time, the Court also articulated a four-step framework to determine when Aboriginal rights take precedence over individual Charter rights under section 25. On the facts of the case, a majority of the Court held that VFGN had demonstrated that section 25 applied, and the residency requirement was shielded from individual Charter rights, such as section 15.

Aboriginal rights and statutes of limitations

In three cases this year, Canadian appellate courts discussed the interaction between Aboriginal rights, treaty rights and statutes of limitations, which impose time limits on commencing lawsuits.

Shot Both Sides v. Canada^[4] involved a claim originally brought by the Blood Tribe of Alberta in 1980, who argued that they had been allocated a smaller reserve than was provided for in Treaty 7. This issue was discovered in 1971. At the time, Alberta’s Limitation of Actions Act — which stipulated that it applied to “all causes of action however arising” — provided that all actions had to be brought within six years of their discovery. The Supreme Court of Canada held that the Blood Tribe’s action was time-barred: the six-year limitation period began to run in 1971 and expired in 1977. However, the Court found that its discretion to grant declaratory relief was not time-barred and declared that Canada had violated its treaty obligations to the Blood Tribe.

In Ontario (Attorney General) v. Restoule,^[5] the Supreme Court of Canada considered alleged violations of Aboriginal treaties in Ontario dating back more than 100 years. The statute that applied to these claims, Ontario’s 1990 Limitations Act, barred “actions on the case” from being brought more than six years after the cause of action arose. The Court held that the phrase “actions on the case” is not a catch-all cause of action or basket clause, but refers only to specific common law causes of action. The Court held that a claim for Aboriginal treaty rights is fundamentally different from an action on the case, as the rights at stake are constitutional and engage issues of public law as opposed to private law. As a result, no statutory limitation period applied to the claims before the Court.

Finally, in Wesley v. Alberta,^[6] the Alberta Court of Appeal considered whether statutes of limitations are inconsistent with Aboriginal rights under section 35 of the Constitution Act, 1982. The case involved claims brought by the Stoney Nakoda Nations, who alleged violations against the Crown dating back to the 1870s for the exploitation of mineral rights in violation of Treaty 7. The Court unanimously held that Alberta’s statutory limitations period does not offend section 35 and that limitation periods are not inconsistent with the honour of the Crown or reconciliation. However, all three judges took a different approach to the availability of declaratory relief. A majority of the Court held that declarations about the existence and breaches of Aboriginal rights are not time-barred by limitations statutes. The Stoney Nakoda Nations have sought leave to appeal this decision to the Supreme Court of Canada.

Three main principles emerge from these decisions. First, Aboriginal and treaty rights create unique causes of action which may or may not be subject to historical limitations statutes. Determining whether a statute of limitations applies will require an analysis of the language used in the statute. Second, Aboriginal rights claims are subject to the normal legal rules of discoverability and did not “restart” upon the enactment of the Constitution Act, 1982. If a limitations period applies, then Aboriginal rights claims may be time-barred. Third, declaratory relief, such as a declaration that a right existed and was violated, will not generally be barred by a statutory limitations period.

The honour of the Crown and contracts with First Nations

In Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan,^[7] as we discussed in an earlier blog post, the Supreme Court of Canada for the first time held that the honour of the Crown can be engaged when governments enter contracts with Indigenous Peoples. In this case, the Pekuakamiulnuatsh First Nation entered into an agreement with the governments of Canada and Québec, where the governments agreed to fund an independent Indigenous police force. The police force’s costs exceeded the funding allotted by the agreements.

The Supreme Court of Canada held that the honour of the Crown will be engaged when the government enters contracts on the basis of a group’s “Indigenous difference” or distinctive philosophies, traditions and cultural practices and which relate to an Indigenous right of self-government. In Takuhikan, the Court held that by refusing to negotiate in good faith to increase its funding for the First Nation’s police force, Québec violated the honour of the Crown. The Court also held that damages for breaches of the honour of the Crown should be calculated on a “reconciliatory” rather than “corrective” basis, with the Court having discretion to fashion a fair and just remedy for both societies. Here, the Court held that reconciliation would be best served by ordering Québec to pay the entire budget deficit of the police force — about $700,000 — rather than remitting the case for a new trial.

Aboriginal rights and nuisance

A claim of nuisance can be brought against a person who is interfering with the use and enjoyment of property. However, claims of nuisance may be barred if the interference with property rights was authorized by statute.^[8] In Thomas v. Rio Tinto Alcan Inc.,^[9] the British Columbia Court of Appeal applied the law of nuisance to Aboriginal rights claims. In the 1950s, the province enacted legislation enabling Rio Tinto Alcan Inc. (RTA) to dam the Nechako River. Two Indigenous groups, the Saik’uz and Stellat’en First Nations, claimed Aboriginal fishing rights in the river and brought a claim of nuisance against RTA and the Crown for interfering with those rights.

The Court of Appeal held that interferences with Aboriginal rights that are connected to an interest in land — such as the fishing rights in this case — can ground a claim of nuisance. However, the claim remains subject to the defence of statutory authority, which applied in this case. The Court of Appeal affirmed that the First Nations had an Aboriginal fishing right in the Nechako River and held that the federal and provincial governments have a fiduciary duty to protect that right. The Supreme Court of Canada declined to hear an appeal from this ruling. The case is significant because it suggests that private companies may be held liable in nuisance if they have interfered with an Aboriginal right tied to an interest in land without statutory approval.

Aboriginal rights and the division of powers

In 2019, the federal government enacted An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (the Act), which created a new framework for child and family services for Indigenous people. Historically, child and family services had been organized largely by provincial governments. Under the Act, which recognized an “inherent right of self-government” for Indigenous societies, First Nations, Inuit and Métis groups may pass their own laws and take jurisdiction over child and family services.

In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families,^[10] the Supreme Court of Canada held unanimously that the Act was constitutional. The Court declined to decide whether Indigenous societies had a right of self-government under section 35 but held that the federal government was entitled to declare that the right existed and to bind itself to act in accordance with it. The Court also held that the Act’s recognition of Indigenous jurisdiction over child and family services was consistent with the division of powers between the federal and provincial governments under the Constitution Act, 1867. The decision confirms that the federal government may exercise its constitutional jurisdiction over “Indians, and lands reserved for Indians” to delegate decision-making authority to Indigenous societies.

Next instalment

In the next instalment in our series, we will discuss important legal developments related to the duty to consult, treaty rights and new legislation. Stay tuned.

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[1] R v. Van der Peet,1996 CanLII 216, at para. 46 (SCC).

[2] R. c. Montour, 2023 QCCS 4154.

[3] Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10.

[4] Shot Both Sides v. Canada, 2024 SCC 12.

[5] Ontario (Attorney General) v. Restoule, 2024 SCC 27.

[6] Wesley v. Alberta, 2024 ABCA 276.

[7] Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2024 SCC 39.

[8] Tock v. St. John’s Metropolitan Area Board, 1989 CanLII 15 (SCC).

[9] Thomas v. Rio Tinto Alcan Inc., 2024 BCCA 62. Leave to appeal was refused: 2024 CanLII 96608 (SCC).

[10] Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5.