1

THE SUPREME COURT OF CANADA’S RECOGNITION AND AFFIRMATION OF
INDIGENOUS RIGHTS IN CANADA: A JURISPRUDENTIAL ANALYSIS

By
MACKENZIE VILLENEUVE

An Honours Project submitted in Partial Fulfillment of
the Degree requirements for the Degree of

BACHELOR OF ARTS
in
CRIMINAL JUSTICE
(HONOURS)

Principal Supervisor
Professor Doug King

Department of Economics, Justice, and Policy Studies
MOUNT ROYAL UNIVERSITY

April 2024

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Copyright © 2024
Mackenzie Villeneuve
ALL RIGHTS RESERVED

This work is completed in its entirety by Mackenzie Villeneuve. All rights are reserved to the
information provided within this document.

MOUNT ROYAL UNIVERSITY
CALGARY, AB, CANADA

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Land Acknowledgement
My name is Mackenzie Villeneuve and I identify as a Dëne Sųłiné woman, Indigenous to
the lands traditionally occupied by the Deninu K’ue First Nation, contemporarily referred to as
the village of Fort Resolution, Northwest Territories, Canada. For the past four years, I have had
the privilege of learning and working at Mount Royal University, an institution located on, and
adjacent to, lands that encompass the hereditary territories of the Niitsitapi (Blackfoot), the
Stoney Nakoda, and the people of the Treaty 7 region in Southern Alberta, which includes the
Siksika, the Piikani, the Kainai, the Tsuut’ina, and the Iyarhe Nakoda. The City of Calgary is also
home to the Métis Nation (Region 3). With respect, I acknowledge that I breathe the air and
drink the water that is theirs; I value the land and the beings that are part of their ancestral world.
I pledge that the work I have completed at this institution, including this thesis, was done in a
way that was of utmost respect to their traditions and epistemologies.

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Abstract
In 1982, the Government of Canada enacted the Constitution Act of 1982. As part of their
amendments to the existing Act, the federal government added a section that recognizes and
affirms existing Indigenous rights in Canada: s. 35. Despite the growing importance of the
provision, there is little scholarly research available to reference regarding the Supreme Court of
Canada’s role in implementing the section and bringing its intentions to fruition. Yet, the
substantive, precedent-setting interpretations, empirical tests, and analyses provided by the Court
in their landmark decisions directly influence society’s perception and understanding of
Indigenous rights in Canada. As an effort to minimize that academic gap, this thesis examines the
Supreme Court of Canada’s contribution to the recognition and affirmation of Indigenous rights
in Canada. Throughout my analytical process, three noteworthy conclusions presented
themselves. First, the rise in the magnitude of the Indigenous rights cases brought forth to the
Supreme Court of Canada is remarkable; what was once about fishing nets, is now about land
title. Secondly, the Supreme Court of Canada’s progressive approach to Indigenous rights
proceedings is notable and clearly illustrates their dedication to a reconciled, just society. Lastly,
this project identifies a need for more accessible literature on the evolution of Indigenous rights
in Canada.

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Dedication and Acknowledgements
Foremost, to my sister who I am inexplicably grateful for. My very best friend, she is the
one who inspires me to be the finest version of myself. Mentally, our hands are forever
intertwined – I am not, without you.
To my parents, who raised me to have an insatiable thirst for education. Thank you for
instilling me with confidence in my abilities; for crafting me into someone who understands the
power that knowledge holds; and for making me do my homework every night.
To my ts’éni, who has continuously, and with grace, given me the space in every room to
sort through my intricate, often illogical thoughts, and who encourages me to engulf myself in
every project I recklessly commit myself to.
At last, to my project supervisor and mentor, Doug King: marsícho for reviving my
passion for the rights and affairs of Indigenous peoples in Canada. I am beyond thankful to you
for your priceless inspiration and education, for your meaningful dedication to the importance of
my project, and for being a true, exemplary advocate of justice.

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Table of Contents
The Supreme Court of Canada’s Recognition and Affirmation of Indigenous Rights........... 8
Methodology ................................................................................................................................ 10
Pre-Constitution Act of 1982 .......................................................................................................11
Calder et al. v. Attorney-General of British Columbia [1973] ..................................................11
Case Overview and Majority Decision ..................................................................................11
Rationale ............................................................................................................................... 12
Dissenting Decision .............................................................................................................. 13
Analysis................................................................................................................................. 14
Post-Constitution Act of 1982 .................................................................................................... 14
R. v. Sparrow [1990] ................................................................................................................. 14
Case Overview and Majority Decision ................................................................................. 14
Rationale ............................................................................................................................... 15
Analysis................................................................................................................................. 16
R. v. Van der Peet [1996] .......................................................................................................... 17
Case Overview and Majority Decision ................................................................................. 17
Rationale ............................................................................................................................... 18
Dissenting Decision .............................................................................................................. 19
Analysis................................................................................................................................. 20
Delgamuukw v. British Columbia [1997] ................................................................................. 21
Case Overview and Majority Decision ................................................................................. 21
Rationale ............................................................................................................................... 22
Concurring Decision ............................................................................................................. 24
Analysis................................................................................................................................. 24
R. v. Morris [2006] ................................................................................................................... 24
Case Overview and Majority Decision ................................................................................. 24
Rationale ............................................................................................................................... 25
Dissenting Decision .............................................................................................................. 27
Analysis................................................................................................................................. 27
R. v. Kapp [2008] ...................................................................................................................... 28
Case Overview and Majority Decision ................................................................................. 28
Rationale ............................................................................................................................... 30
Concurring Decision ............................................................................................................. 31
Analysis................................................................................................................................. 32
Tsilhqot’in Nation v. British Columbia [2014] ......................................................................... 33
Case Overview and Majority Decision ................................................................................. 33
Rationale ............................................................................................................................... 34
Analysis................................................................................................................................. 36
Purposive Analysis ...................................................................................................................... 37
From Fishing Nets to Aboriginal Title ...................................................................................... 37

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Evolution of the Supreme Court of Canada .............................................................................. 38
A Call for Accessibility ............................................................................................................. 39
Discussion and Conclusion ......................................................................................................... 40
Limitations ................................................................................................................................ 41
Conclusion ................................................................................................................................ 41
References .................................................................................................................................... 43

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The Supreme Court of Canada’s Recognition and Affirmation of Indigenous Rights in
Canada
Prior to the enactment of the Constitution Act of 1982, Canadian legislation was governed
by the British North America Act (Hanson, 2009b). In the 1970s, former Prime Minister Pierre
Trudeau initiated the process of patriating the governing document from British Parliament to
Canadian legislature, in an effort to increase the country’s independence (Hanson, 2009b; The
Constitution Express, 2016). However, when the federal government’s original proposal was
publicized, many Indigenous peoples across Canada grew increasingly concerned over the
document’s lack of recognition of treaty rights (Hanson, 2009b). At the time, Aboriginal and
treaty rights were solely recognized through decisions made by the courts (Centre for
Constitutional Studies, n.d.). Therefore, from the Indigenous perspective, a cease of
constitutionally recognized treaty rights, in the absence of an appropriate alternative, would
essentially strip them of their protected status and act as yet another legal and political
assimilative motion (The Constitution Express, 2016).
In 1980 and 1981, a group of Indigenous rights activists, led by George Manuel, travelled
across Canada protesting for Aboriginal and treaty rights to be recognized and affirmed in the
forthcoming Act (Hanson, 2009b). This Indigenous-led movement would be later referred to as
the Constitution Express. By January 1982, after a long and hard-fought battle by Indigenous
peoples championing for the constitutional recognition of their treaty rights, the federal
government agreed to the demands of Indigenous organizations and added a provision
recognizing Indigenous rights to the Constitution Act of 1982. Section 35 of the Constitution Act,
1982 declares: (1) “The existing [A]boriginal and treaty rights of the [A]boriginal peoples of

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Canada are hereby recognized and affirmed. (2) In this Act, [A]boriginal peoples of Canada
includes the Indian, Inuit, and Métis peoples of Canada.”
As predicted, Indigenous peoples in Canada were deeply impressed with the Government
of Canada’s constitutional recognition of their existing Aboriginal and treaty rights. While the
provision did not add any new, additional rights, it lawfully affirmed all Indigenous rights that
existed at the time of enactment. Further, not only does the provision legally acknowledge their
distinct status, but it has served as a ground-breaking tool for Indigenous peoples to challenge
infringements and enforce their protected rights in the court system (Centre for Constitutional
Studies, n.d.). Over the past 42 years, regardless of the magnitude of the infringement,
Indigenous peoples across Canada have fiercely advocated for their traditionally practiced,
treaty-recognized, constitutionally protected rights.
With respect to the decisions explored below, it is imperative to highlight the absolute
weight that the Supreme Court of Canada holds with regard to Canadian jurisprudence. Since its
establishment in 1875, the Supreme Court of Canada has had a profound impact on the lives of
Canadians (Supreme Court of Canada, 2013). Each decision the Court makes holds substantial
weight that inevitably affects the treatment of Canadians by the state, each other, and themselves.
As the highest appeal court in Canada, the Supreme Court of Canada’s word is final – unable to
be overturned or disputed under any circumstance, by any court other than its own. Furthermore,
the Court, as influential and binding as they are, is only logistically able to hear approximately
65-80 appeal cases per year (Supreme Court of Canada, 2013). Thus, only the most important
appeals are accepted and heard before the Supreme Court of Canada.
As with all other legal matters in Canada, the Court’s determinations directly impact the
rights and lives of Indigenous peoples in Canada. However, Indigenous peoples have a long,

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convoluted history regarding their relationship with the legal system in Canada. Therefore, the
decisions held by the Supreme Court of Canada regarding Indigenous peoples’ legal rights to
practice their traditional cultural activities and continue their inherited lifestyle are inexplicably
important to the survival of their culture.
Congruent with the terminology employed in s. 35 of the Constitution Act, 1982, the
following thesis serves to explore and analyze the ways in which the Supreme Court of Canada
has recognized and affirmed Indigenous rights in Canada since this enactment of the Constitution
Act in 1982. Moreover, this project examines the rationales of seven foremost decisions, one pres. 35 and six post-s. 35, focusing on the Supreme Court of Canada’s interpretations and wholly
declarations found within each rationale.
Methodology
As this thesis aims to explore and interpret the philosophical grounds that informed
decisions regarding the rights of Indigenous peoples in Canada, it is necessary to acknowledge
the approach taken when determining which cases to incorporate and analyze. I chose the
following seven cases, via a purposive sampling methodological approach, based on their
fundamental contribution to the rights that the majority of Indigenous peoples in Canada possess
or have the potential to possess. As this project does not involve any research beyond
unobtrusive data collection, ethical approval was not required nor sought. Further, each case was
manually acquired via the Supreme Court of Canada: Decisions and Resources database based
on its precedent-setting impact and the frequency in which it has been referred to since its
release.
To be included in my project, each case must have satisfied the following criteria: (1) the
decision must have been heard and decided by the Supreme Court of Canada, (2) the decision

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must have either set precedent for future hearings or significantly altered the existing law
surrounding Indigenous and treaty rights, and (3) the decision must have been heard and decided
following the enactment of the Constitution Act of 1982 (with the exception of Calder et al. v.
Attorney-General of British Columbia [1973]).
Through the employment of both a historical analysis and descriptive research design,
this thesis aims to describe and inform seven landmark Supreme Court of Canada decisions, as
well as their respective impacts on Canadian jurisprudence. Furthermore, the objective of this
project is to educate Indigenous and non-Indigenous peoples on the development of Indigenous
rights in a digestible manner. Therefore, the following project intends to tell a chronological
account of the legal evolution of Indigenous rights in Canada since the enactment of s. 35 of the
Constitution Act, 1982. Specifically, this thesis examines and analyzes the following seven cases;
Calder et al. v. Attorney-General of British Columbia [1973], R. v. Sparrow [1990], R. v. Van der
Peet [1996], Delgamuukw v. British Columbia [1997], R. v. Morris [2006], R. v. Kapp [2008],
and Tsilqot’in Nation v. British Columbia [2014].
Proceeding are seven summaries and analyses of the aforementioned decisions. Guiding
the investigative manner of this project is the following overarching inquiry: How has the
Supreme Court of Canada recognized and affirmed the rights of Indigenous peoples in Canada
since the enactment of the Constitution Act of 1982?
Pre-Constitution Act of 1982
Calder et al. v. Attorney-General of British Columbia [1973]
Case Overview and Majority Decision
On behalf of himself, numerous Nisga’a elders, the Nisga’a Tribal Council, and the
Nisga’a Nation, Frank Calder sued the provincial government of British Columbia in 1967,

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arguing that Nisga’a title to their ancestral lands had never been lawfully extinguished (Calder et
al. v. Attorney-General of British Columbia, 1973; Salomons, 2009). The ancestral land in
question consisted of 1,000 square miles in and around the Nass River Valley, Observatory Inlet,
Portland Inlet, and the Portland Canal, all located in northwestern British Columbia.
The initial action was dismissed at trial, and both the British Columbia Supreme Court
and the Court of Appeal for British Columbia rejected the appeal. Thus, Calder et al. appealed to
the Supreme Court of Canada for recognition of their Aboriginal title to their traditional lands
(Salomons, 2009). From November 29th to December 3rd, 1971, Calder et al. presented their case
to the Court. Present at the hearing were Supreme Court Justices Martland, Judson, Ritchie,
Pigeon, Hall, Spence, and Laskin. 424 days later, on January 31st, 1973, the Supreme Court of
Canada released their decision on the Calder et al. v. Attorney-General of British Columbia case.
In a four-three split, the Supreme Court of Canada dismissed the appeal. Representing
himself, Martland, and Ritchie JJ., Judson J. dismissed the appeal on the basis that while
Aboriginal title does exist as a legal concept, it has not been historically, nor legally recognized
to pertain to Nisga’a territory specifically. In concurrence, Pigeon J. dismissed the appeal on the
basis of a legislative technicality regarding the appellant’s legal proceedings.
Rationale
In their analysis of the case, the Supreme Court of Canada considered various aspects
they had yet to make an official judgement on, including Aboriginal title, its entrenchment within
the Royal Proclamation of 1763, and its relevance regarding contemporary legal proceedings.
Specifically, the Court considered and answered the following two questions: Does the Royal
Proclamation of 1763 recognize Aboriginal title? Further, if the Royal Proclamation of 1763 does
recognize Aboriginal title, where does Aboriginal title apply?

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Concerning Calder et al.’s assertion that the acknowledgement of Aboriginal title within
the Royal Proclamation of 1763 pertained to Nisga’a territory, the Court disagreed. As the
specific land in question was not under British Sovereignty in 1763, when the Royal
Proclamation was signed and instated, the Court determined that the provisions within the
document could not be applied to Nisga’a land in that context. The Court acknowledged that its
control was eventually negotiated to be under British Sovereignty by way of the Treaty of
Oregon in 1846. However, Judson J. noted that there was no mention of Aboriginal title in the
Treaty of Oregon and that, further, the mention of it in the Royal Proclamation of 1763 did not
automatically extend to that jurisdiction once the areas were jurisprudentially adjoined. As the
appellant’s argument rested on the Royal Proclamation’s mention of Aboriginal title, and the
Court deemed that reference to be inapplicable, Calder et al.’s appeal was dismissed with no
costs.
Dissenting Decision
Representing himself, Spence, and Laskin JJ., Justice Hall delivered the rationale of the
dissenting opinion. As per their interpretation of the Royal Proclamation of 1763, the text
pertaining to Aboriginal title was unequivocally “intended to include the lands west of the Rocky
Mountains” (Calder et al. v. Attorney-General of British Columbia, 1973, p. 398). Furthermore,
succeeding his assertion that Aboriginal title does pertain to Nisga’a lands, Hall J. highlighted the
notion that no extinguishment of the Nisga’a’s inherent legal right to land, via surrender to the
Crown, has since occurred. For those reasons, Hall J. concluded that he would allow the appeal
with costs assigned to the respondent and declare the appellants’ right to possession of their
respective territory.

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Analysis
The significance of the Calder et al. case lies in its ground-breaking acknowledgement of
Aboriginal title for the first time in Canadian jurisprudence. While preceding courts had only
ever denied the existence of the concept, the Supreme Court of Canada ruled that Aboriginal title
does indeed exist and can be affirmed through reference to the Royal Proclamation of 1763. For
reference, the Royal Proclamation of 1763 reads:
And whereas it is just and reasonable, and essential to our Interest, and the Security of our
Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who
live under our Protection, should not be molested or disturbed in the Possession of such Parts
of Our Dominions and Territories as, not having been ceded to or purchased by Us, are
reserved to them, or any of them, as their Hunting Grounds.
Although the Nisga’a did not win their case, their efforts resulted in a monumental
breakthrough for Indigenous legal proceedings. Calder et al. was the first case to approach the
negotiation of land claim settlements and more importantly, the Court’s ruling – declaring that
Indigenous people have an inherent right to their ancestral lands – paved the way for future
Indigenous nations to seek legal title to their territory.
Post-Constitution Act of 1982
R. v. Sparrow [1990]
Case Overview and Majority Decision
On May 25, 1984, Ronald E. Sparrow, a member of the Musqueam Indian Band in British
Columbia, was caught fishing with a drift net longer in length than the legal limit as set out in his
fishing license (R. v. Sparrow, 1990). Mr. Sparrow was subsequently charged under s. 61(1) of
the Fisheries Act. In court, Mr. Sparrow admitted to the offence, yet defended his actions on the

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basis that the Fisheries Act provision is inconsistent with s. 35(1) of the Constitution Act. Mr.
Sparrow deemed the violation charges invalid. However, the provincial court judge held that an
individual cannot claim an existing Aboriginal right under s. 35(1) unless it can be explicitly
supported by a document that stipulates the right’s existence.
In contrast, the Court of Appeal for British Columbia held that while s. 35(1) applies to
the circumstance, the trial judge’s finding of facts did not sufficiently support an acquittal. Mr.
Sparrow appealed that decision to the Supreme Court of Canada on the basis that the British
Columbia Court of Appeal (1) failed to accurately recognize the scope of s. 35(1) and (2) failed
to acknowledge the inconsistency between the Fisheries Act and s. 35(1) of the Constitution Act.
Present during the hearing was Chief Justice Dickson, as well as Lamer, Wilson, La Forest,
L’Heureux-Dubé and Sopinka JJ.
On May 31, 1990, representing the entirety of the Supreme Court of Canada, Chief
Justice Dickson and La Forest J. held that the appeal and cross-appeal should be dismissed.
Rather, a re-trial shall be held, where the analysis set out in this examination can provide a
necessary foundation for the original constitutional question to be appropriately considered.
Rationale
At the forefront of the Court’s rationale was their response to the following two inquiries:
What criteria determine the applicability of s. 35(1) of the Constitution Act, 1982? Also, what is
the meaning of “existing [A]boriginal and treaty rights”? To begin their analysis of the case,
Dickson C.J. and La Forest J. provided a detailed account of their understanding of the term
“existing” used in the constitutional provision. The Court determined that the terminology does
not permit the revival of rights previously extinguished. Furthermore, and of equal importance,
the word “existing” does not imply the notion that active rights are frozen at the time of the

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enactment of the Constitution Act. Rather, Aboriginal rights are capable of flexibility and
evolution.
Following that assertion, the Court acknowledged the constitutional, purposive nature of
the provision. In contrast to what the respondent’s argument was grounded in, an Aboriginal right
is only considered to be extinguished by a legal stipulation when the intention is clear and plain
to do so. For reference, Aboriginal title refers to the “inherent Aboriginal right to land or a
territory” (Hanson, 2009a, para. 1). Therefore, the Court intended to clarify that imposing a
sovereignty does not automatically extinguish an Aboriginal title.
In conclusion, Chief Justice Dickson and La Forest J. affirmed the inherent commitment
that s. 35(1) is grounded in. The provision is designed to promote negotiations between
Indigenous parties and constitutional bodies, not to extinguish Aboriginal rights nor to
automatically serve as an exception to governed regulations. Lastly, Sparrow confirmed that s.
35(1) is not subject to s. 1 of the Charter.
Analysis
The importance of R v. Sparrow lies in its assertion of the intended design of s. 35(1) of
the Constitution Act. Further, Dickson C. J. and La Forest J.’s analysis of the case provided lower
courts with set criteria to use for evaluation when it comes to the determination of whether an
action or proceeding is protected under s. 35. As the Court had yet to comment on the subject,
this case served as the precedent for all future cases related to Indigenous rights.
In addition, the Sparrow case set out clear criteria to reference when government bodies
and legislation infringe upon rights protected by s. 35. Dickson C.J. and La Forest J. enforced a
two-step justification analysis upon a prima facie interference consisting of the following
inquiries. Known as “the Sparrow Test”, the infringement must (1) present a valid legislative

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objective and (2) account for the interest, advisement (if not consent), and compensation of the
Indigenous person or nation in order to be justified (Salomons & Hanson, 2009). Lastly, the
Supreme Court of Canada acknowledged the sui generis nature of Indigenous rights cases,
stating that other considerations may be taken into account if warranted.
R. v. Van der Peet [1996]
Case Overview and Majority Decision
On September 11, 1987, Dorothy Van der Peet, a member of the Stó:lō First Nation, a
part of the Coast Salish Nation in British Columbia, was charged under s. 61(1) of the Fisheries
Act, R.S.C. 1970, c. F-14, with violating s. 27(5) of the British Columbia Fishery (General)
Regulations, SOR/84-248 (R. v. Van der Peet, 1996). The charges arose following Ms. Van der
Peet’s engagement in the vending of 10 salmon caught by her common-law partner and his
brother under the authority of an Indian food-fishing licence. At the time of the offence, such a
food-fishing licence prohibited Indigenous people from selling fish to non-Indigenous people.
Although both parties accepted the agreed statement of facts, Ms. Van der Peet contested
the nature of the charges against her on the basis that the act of selling fish is an Aboriginal right
protected under s. 35(1) of the Constitution Act.
At trial, the provincial court judge ruled that Ms. Van der Peet was guilty as charged,
asserting that selling fish is not an “existing” Aboriginal right and therefore not protected under
s. 35(1). Selbie J. of the Supreme Court of British Columbia overturned Scarlett Prov. Ct. J.’s
ruling, declaring that the provincial court judge erred in their evaluation of the evidence. The
Supreme Court of British Columbia held that Aboriginal societies had no evidentiary prohibition
against the sale of fish, therefore the evidence cannot affirm that the right is not protected. The
Crown appealed that decision to the Court of Appeal for British Columbia, where Macfarlane

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J.A. held that an Aboriginal right is only recognized and protected under s. 35(1) when the
evidence unequivocally establishes that the practice arose from the Aboriginal society. The J.A.
reinstated the provincial court judge’s original decision, restoring the guilty verdict. Ms. Van der
Peet appealed that decision to the Supreme Court of Canada and presented her case to Lamer C.J.
and La Forest, Sopinka, Gonthier, Cory, Iacobucci, Major, L’Heureux-Dubé and McLachlin JJ. in
the last week of November 1995.
In their assessment of the case facts, the Court ruled on August 21, 1996, that the
exchange of fish for money is not an integral practice central to the Stó:lō First Nation’s culture;
therefore, it was determined that Ms. Van der Peet’s actions were not protected under s. 35(1) of
the Constitution Act. Representing seven out of nine Justices, Chief Justice Lamer dismissed the
appeal and affirmed the Court of Appeal’s decision to restore the trial judge’s conviction of Ms.
Van der Peet. For reasons inspected below, L’Heureux-Dubé and McLachlin JJ. were in dissent
of the majority’s determination.
Rationale
Informing the Court’s determination to dismiss Ms. Van der Peet’s appeal was their newly
constructed Integral to a Distinctive Culture Test, also referred to as the Van der Peet Test. As
Sparrow (1990) did not exhaustively define what is or is not constituted as an Aboriginal right,
Chief Justice Lamer took Van der Peet (1996) as an opportunity to develop a set of criteria for
the subject. As per their judgement, the Court determined ten criteria that must be met for a
practice to be protected under s. 35(1):
1. Courts must take into account the perspective of Aboriginal peoples themselves.
2. Courts must precisely identify the nature of the claim being made in determining whether
an Aboriginal claimant has demonstrated the existence of an Aboriginal right.

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3. In order to be integral a practice, custom or tradition must be of central significance to the
Aboriginal society in question.
4. The practices, customs and traditions which constitute Aboriginal rights are those which
have continuity with the practices, customs and traditions that existed prior to contact.
5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent
in adjudicating Aboriginal claims.
6. Claims to Aboriginal rights must be adjudicated on a specific rather than general basis.
7. For a practice, custom or tradition to constitute an Aboriginal right it must be of
independent significance to the Aboriginal culture in which it exists.
8. The integral to a distinctive culture test requires that a practice, custom or tradition be
distinctive; it does not require that that practice, custom or tradition be distinct.
9. The influence of European culture will only be relevant to the inquiry if it is
demonstrated that the practice, custom or tradition is only integral because of that
influence.
10. Courts must take into account both the relationship of Aboriginal peoples to the land and
the distinctive societies and cultures of Aboriginal peoples.
Evidently, the Court held that Ms. Van der Peet’s claim, being that the exchange of fish
for money is an Aboriginal right affirmed by s. 35(1), did not satisfy the above criteria.
Dissenting Decision
From L’Heureux-Dubé J.’s perspective, Aboriginal rights should be assessed through a
“dynamic right” approach, as opposed to a “frozen right” approach. The Justice held that
regarding practices as integral to a distinctive culture only when they existed before European
contact aligned with an outdated, static approach. Furthermore, L’Heureux-Dubé felt that the

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case was not an issue of commercial fishing but rather, an issue of trading and bartering for
livelihood, support, and sustenance. In this regard, Justice L’Heureux-Dubé felt that Ms. Van der
Peet’s actions met the criteria for protection under s. 35(1).
From McLachlin J.’s perspective, Aboriginal rights should be defined through an
empirical approach, specifically through the reference to historical ways of use. Indigenous
peoples have both historically and traditionally used fishing as a means of sustenance; that is an
empirical fact proven time and time again. Further, the Justice argued that the exercise of trading
or commerce can justifiably be regarded as a modern form of sustenance. McLachlin J. held that
the evidence presented favoured the notion that the appellant was exercising her traditional
Aboriginal right to fish for sustenance, thus Ms. Van der Peet’s actions should be protected under
s. 35(1).
Analysis
The significance of the Van der Peet case lies in the construction of the Integral to a
Distinctive Culture Test, as the criteria outlined advanced the legal understanding of an
Aboriginal right and clarified its application. Further, in his purposive analysis of s. 35(1), Chief
Justice Lamer (1996) acknowledged and affirmed the doctrine of Aboriginal rights, asserting
that:
When Europeans arrived in North America, [A]boriginal peoples were already here, living in
communities on the land, and participating in distinctive cultures, as they had done for
centuries. It is this fact, and this fact above all others, which separates [A]boriginal peoples
from all other minority groups in Canadian society and which mandates their special legal,
and now constitutional, status. (para. 30)

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As expected, the Van der Peet decision gained criticism due to its inherent restrictive
nature (Hanson & Salomons, 2009). By further defining what constitutes an Aboriginal right, the
Supreme Court of Canada arguably manufactured a fixed avenue that allows for future potential
rights to be extinguished, if the right in question does not fit within the limits set out in the Van
der Peet Test. Furthermore, by situating Aboriginal rights as exclusively practices of the past, the
Court perpetuated the notion that Indigenous cultures are static and unchanging, or that they
must be in order for their rights to be protected under s. 35(1) of the Constitution Act.
Nevertheless, the Van der Peet case significantly contributed to the understanding, recognition,
and affirmation of Indigenous rights in Canada.
Delgamuukw v. British Columbia [1997]
Case Overview and Majority Decision
In 1984, Earl Muldoe, referred to as Delgamuukw, initiated proceedings against the
Province of British Columbia (Delgamuukw v. British Columbia, 1997; Hurley, 2000). On behalf
of himself, 35 Gitxsan and 12 Wet’suwet’en Chiefs, and their respective Houses, the plaintiff
sought ownership and resulting jurisdiction over certain portions of land in northwest British
Columbia, totalling 58,000 square kilometres (Hurley, 2000). The Province of British Columbia
counter-claimed, asserting that the plaintiffs have no right or interest in and to the territory and
that their cause of action ought to be for compensation from the federal government.
At trial, Delgamuukw’s evidence put forth was largely based on the respective historical
use, “ownership”, adaawk (oral histories), kungax (spiritual performances), and the existence of
a feast hall where the Gitxsan and Wet’suwet’en peoples share stories relating to their
identification with and to the land. The trial judge declined Delgamuukw’s evidence, asserted

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that any title that the Gitxsan and Wet’suwet’en may have previously had has since been
extinguished, and dismissed the claim and the province’s counterclaim.
On appeal, the plaintiffs altered their original proceedings to instead seek Aboriginal title
and self-government. Further, the individual claims by each House were amalgamated into two
communal claims put forward on behalf of each of the two nations involved. The Court of
Appeal for British Columbia dismissed Delgamuukw’s appeal on similar grounds as the trial
judge. Delgamuukw subsequently appealed to the Supreme Court of Canada. Present at the
appeal and a part of the judgement were Chief Justice Lamer and Justices Cory, McLachlin,
Major, La Forest, and L’Heureux-Dubé.
In a unanimous decision, Lamer C.J. held that the appeal should be allowed in part and
the cross-appeal should be dismissed. Further, the Court determined that a new trial be held on
the basis that (1) the defects in the pleading prevented a wholly assessment of the appeal and (2)
the trial judge’s errs of fact concerning the evidence put forth impeded the proceedings.
Rationale
Within their assessment of Delgamuukw’s appeal, the Supreme Court of Canada explored
numerous topics branching from the realm of Aboriginal title. Among those topics were the
content of Aboriginal title, infringements of Aboriginal title, and extinguishment of Aboriginal
rights. Additionally, the Court reaffirmed the legal definition of Aboriginal title: “Aboriginal title
encompasses the right to exclusive use and occupation of the land held pursuant to that title for a
variety of purposes, which need not be aspects of those [A]boriginal practices, customs and
traditions which are integral to distinctive [A]boriginal cultures” (Delgamuukw v. British
Columbia, 1997, p. 1014).

23
To begin their analysis, the Court identified the collective nature of Aboriginal title,
asserting the fact that it is held communally, as “a collective right to land held by all members of
an [A]boriginal nation” (Delgamuukw v. British Columbia, 1997, para 115). Further, Lamer C.J.
highlighted an important aspect concerning the limitations of Aboriginal title: “The content of
[A]boriginal title contains an inherent limit in that lands so held cannot be used in a manner that
is irreconcilable with the nature of the claimants’ attachment to those lands” (p. 1015). In saying
this, the Chief Justice asserted the fundamental responsibility that Indigenous nations have
concerning the sustainability of the land. Moreover, the Court clarified that the “right to occupy
and possess” is purposely put in broad terms, as the nature of claims related to Aboriginal title is
often broad and complex and cannot be restricted to a descriptive definition.
Most significantly, the Supreme Court of Canada created a test that can be referenced
when examining whether an Indigenous nation has adequately demonstrated Aboriginal title.
Consisting of three requirements, the Court held that Indigenous nations must prove the
following:
1. The land must have been occupied prior to sovereignty;
2. If present occupation is relied on as proof of occupation pre-sovereignty, there must be a
continuity between present and pre-sovereignty occupation; and
3. At sovereignty, occupation must have been exclusive.
In closing, the Chief Justice declared the inability of a provincial law of general
application to extinguish Aboriginal rights, reminding readers of the definitive standard “of clear
and plain intention” required to extinguish Aboriginal rights.

24
Concurring Decision
With only a slight deviation from their colleagues’ rationale, La Forest and L’HeureuxDubé JJ. held that the inconsistencies noted between the pleadings and the ultimate goal of the
appellants rendered the need for a new trial. Further, La Forest J.’s analysis was founded on the
acknowledgement of the inherent contextual nature of cases addressing Aboriginal title.
Analysis
Aboriginal title has been and continues to be a convoluted topic in Canada. Delgamuukw
is regarded as a significant case in Canadian jurisprudence as it strengthened the understanding
and scope of Aboriginal title. Furthermore, the case clarified the government’s duty to consult
with Indigenous nations, criticized the extinguishment of Aboriginal rights, and affirmed the
legal validity of oral history.
R. v. Morris [2006]
Case Overview and Majority Decision
On November 28, 1996, Ivan Morris and Carl Olsen were arrested on Vancouver Island
for breaching three prohibitions contained in the Wildlife Act: hunting with a firearm during
prohibited hours (s. 27(1)(d)); hunting with the aid of a light or illuminating device (s. 27(1)(e));
and hunting without reasonable consideration for the lives, safety, or property of other persons (s.
29).
Both Mr. Morris and Mr. Olsen are members of the Tsartlip Band of the Saanich Nation.
At trial, they claimed they were being charged for doing what the Tsartlip have done from time
immemorial; hunting at night with the aid of illuminating devices. Mr. Morris and Mr. Olsen
justified their actions as being treaty-protected rights. For reference, the North Saanich Treaty of
1852 recognizes the Saanich Nation to be “at liberty to hunt over the unoccupied lands; and to

25
carry on [their] fisheries as formerly” (R v. Morris, 2006, para. 2). The Crown recognized Mr.
Morris and Mr. Olsen’s treaty right to hunt but contended that that right did not extend to hunt at
night in an unsafe manner, hence the Wildlife Act’s regulations. Mr. Morris and Mr. Olsen
countered that they were practicing safely and further, that provincial regulations cannot
dishonor their treaty right.
At trial, the judge concluded that although night hunting with illumination was proven to
be a historical practice of the Tsartlip people, the exercise was inherently unsafe. Thus, the trial
judge convicted the accused for hunting during prohibited hours (s. 27(1)(d)), acquitted the
counts of hunting without reasonable consideration for the lives, safety, or property of other
persons (s. 29), and conditionally stayed the charges of hunting with an illuminating device (s.
27(1)(e)). The convictions were upheld by both a summary conviction appeal judge and by the
Court of Appeal for British Columbia. Therefore, Mr. Morris and Mr. Olsen appealed to the
Supreme Court of Canada, where they presented their case to Justices Binnie, Deschamps,
Abella, Charron, Bastarache, and Fish, and Chief Justice McLachlin on October 14, 2005.
On December 21, 2006, the Supreme Court of Canada released their decision on the
Morris case. Based on the evidence demonstrating that the Tsartlip’s historical Indigenous
practice of hunting at night with an illuminating device has never resulted in a single known
incident, coupled with the assertion that s. 27(1)(d) and (e) of the Wildlife Act conflict with the
exercise of a protected treaty right, the Supreme Court of Canada, in a four-three split decision,
allowed the appeal, set aside the convictions, and entered acquittals.
Rationale
On behalf of Justice Binnie, Justice Charron, and themselves, Deschamps and Abella JJ.
divided their analysis into two categorical parts: the first being the determination of whether the

26
Wildlife Act provisions conflict with the accused’s treaty rights and the second being the analysis
of whether the provisions are applicable under ss. 91 and 92 of the Constitution Act, 1867 and s.
88 of the Indian Act, R.S.C. 1985, c I-5. As no treaty right authorizes the right to hunt
dangerously, the Supreme Court of Canada was only concerned with the issues regarding s.
27(1)(d) and (e) of the Wildlife Act.
As was made very clear in antecedent cases, the Court is united and unwavering on the
notion of Indigenous rights being regarded as dynamic, evolving stipulations. Concerning the
first topic of the analysis, Deschamps and Abella JJ. maintained that stance once again: “From
1852 to present, the tools used by the Tsartlip in hunting at night have evolved. From sticks with
pitch to spotlights and from canoes to trucks, the tools and methods employed in night hunting
have changed over time. These changes do not diminish the rights conferred by the Treaty” (R. v.
Morris, 2006, para. 30). Furthermore, the Justices noted that all hunting has the potential to be
dangerous, regardless of the time of day. As Mr. Morris and Mr. Olsen had adequately proven
their existing treaty right, and the Crown could not reasonably prove why they should be
prohibited from exercising that right, the Court determined that it was unnecessary to limit
Morris and Olsen’s treaty rights in the name of s. 27(1)(d) and (e).
To preface the second category of the Court’s rationale, an understanding of the
constitutional framework is helpful. For context, ss. 91 and 92 of the Constitution Act, 1867, are,
respectively, concerned with the legislative authority of the Parliament of Canada and the
exclusive powers of provincial legislatures. Deschamps and Abella JJ. upheld the Court’s
determination in a previous case, asserting that when a provincial law impairs federal jurisdiction
over Indigenous affairs, it will be “inapplicable to the extent of the impairment” (R v. Morris,
2006, para. 42). Furthermore, s. 88 of the Indian Act concerns the general provincial laws as they

27
apply to Indigenous peoples residing within their corresponding province. S. 88 reads, “Subject
to the terms of any treaty… all laws of general application… in any province are applicable to
and in respect of Indians in the province, except to the extent that those laws are inconsistent
with this Act” (Indian Act, R.S.C. 1985, c I-5). As the first seven words of the provision suggest,
the Court held that the protection of the treaty rights is preserved and thus, the provincial
legislation cannot be incorporated under s. 88 of the Indian Act.
Dissenting Decision
In complete dissent, McLachlin C.J., as well as Bastarache and Fish JJ., held that the
provincial legislative ban on night hunting with a firearm (s. 27(1)(d)) ought to apply to the
accused. The three argued that the provision’s intent was to apply to all British Columbians to
ensure the safety of the province’s hunters and residents. Further, from their point of view, the
treaty right to hunt does not, and was never intended to, include the right to hunt in a hazardous
manner. It was for those reasons that McLachlin C.J., Bastarache J. and Fish J. dissented from
the majority’s resolution.
Analysis
As expected, the majority’s decision on Morris received considerable backlash from
inhabitants of Vancouver Island (Martin, 2015). However, regarded as a seemingly unsafe
encouragement to some, the Supreme Court of Canada’s decision yielded a much more important
message than to refrain from night-time hiking. What is considered abnormal, unpopular, and
even unsafe to some individuals, is a grasp on pre-colonial traditions to others. As Mr. Morris
and Mr. Olsen successfully proved in court, their traditional way of hunting and harvesting has
never knowingly harmed another individual. While being proactive is undeniably important,
especially regarding safety, respecting treaty provisions and providing Indigenous peoples the

28
freedom to exercise them appropriately is incredibly important as well. The Supreme Court of
Canada has arguably never appealed to popularity. Rather, a rational, comprehensive analysis of
the situation continues to inform the majority’s determination. Morris was no exception.
R. v. Kapp [2008]
Case Overview and Majority Decision
In 1992, the federal government introduced the Aboriginal Fisheries Strategy in an
attempt to give Indigenous peoples a fair chance to participate in commercial fishing. As part of
that initiative, three pilot sales programs were introduced, one of which allowed designated
Indigenous members to fish for salmon in the mouth of the Fraser River for a 24-hour period,
during which all other commercial fishers were prohibited from doing so.
On August 19, 1998, from 7:00 a.m. to August 20, 1998, 7:00 a.m., only designated band
members were permitted to fish for salmon at the mouth of the Fraser River. However, Mr. Kapp
and several other commercial fishers, who were excluded from the fishery during this period,
participated in a protest fishery to express their concern that the pilot sales program was
unconstitutional due to its discriminatory nature. As a result, the protestors were charged for
fishing at a time when the fishery was closed to them. In defence of the charges, they filed a
notice of a constitutional question seeking declarations that the regulations violated their s. 15(1)
Canadian Charter of Rights and Freedoms, 1982 rights based on a race-based distinction. For
reference, s. 15(1) of the Charter affirms, “Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of the law without discrimination and,
in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability” (1982).

29
The Provincial Court of British Columbia found that the license granted to the designated
fishers did indeed infringe on the non-designated fishers’ s. 15(1) equality rights. The Court
stayed proceedings on all charges. The Crown initiated a summary convictions appeal to the
Supreme Court of British Columbia, which held that there was no discriminatory nature apparent
as the pilot sales program did not promote the idea that those excluded from the fishery for that
period were less worthy or valued members of Canadian society. The Court lifted the stay of
proceedings and entered convictions against the appellants.
Mr. Kapp appealed the decision to the British Columbia Court of Appeal. The Court
dismissed the appeal over several sets of concurring reasons. While the majority of the Court of
Appeal Justices felt that the s. 15(1) claim was insufficiently filed in that there was no denial of
s. 15(1) benefits or discriminatory nature apparent, Kirkpatrick J.A. dismissed the s. 15(1)
infringement claim due to the existence of s. 25 of the Charter, which he felt protected and
insulated the program from a s. 15(1) investigation. Mr. Kapp appealed this decision to the
Supreme Court of Canada and presented his case to Chief Justice McLachlin and Justices
Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron, and Rothstein on December 11,
2007.
In a unanimous decision, the Supreme Court of Canada dismissed Mr. Kapp’s appeal on
June 27, 2008, on the basis that the communal fishing license was indeed constitutional. The
majority of the Court dismissed the appeal as the program was protected from s.15(1)
infringement by s. 15(2) of the Charter. In concurrence, Bastarache J. dismissed the appeal as he
felt that the program was protected from s. 15(1) infringement by s. 25 of the Charter. By reason
of that decision, Mr. Kapp faced the initial convictions ordered by the Supreme Court of British
Columbia.

30
Rationale
As prepared by Chief Justice McLachlin and Abella J., the majority based their decision
on the foundation that s. 15(2) of the Canadian Charter is capable of working independently of
s. 15(1). Thus, due to the Crown’s ability to sufficiently prove that the Aboriginal Fisheries
Strategy was applicable under s. 15(2), the Court determined that the pilot sales program was
protected from a s. 15(1) investigation. Regarding its relevance, s. 15(2) of the Charter declares
that “[s]ubsection (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability” (1982).
To preface their analysis, the Court highlighted that substantive equality, as opposed to
formal equality, is at the core of equality claims. This means that the Court, in upholding the
Charter, focuses on promoting a society in which all are treated as human beings equally
deserving of concern, respect, and consideration under the law. However, the Court clarified that
this does not equate to the notion that everyone is treated in an equal, identical manner, as that
approach can perpetuate increased inequality.
Through examination of the present issue, the Court revisited and determined the
following necessary tests:
1. Concerning s. 15(1), discrimination can be determined through a two-step test:
a. Does the law create a distinction based on an enumerated or analogous ground?
b. Does the distinction create a disadvantage by perpetuating prejudice or
stereotyping?
If yes to both, discrimination is likely present.

31
2. Concerning s. 15(2), a law, program, or activity does not violate the s. 15(1) equality
guarantee if the government can demonstrate that:
a. the program has an amelioration or remedial purpose; and
b. the program targets a disadvantaged group identified by the enumerated or
analogous grounds.
If the government cannot adequately demonstrate the above criteria, the issue is subject to
a formal s. 15(1) investigation.
Further, Chief Justice McLachlin and Abella J. rendered that a program need not have the
ameliorative purpose as its sole object but may be one of several to align with s. 15(2)’s grounds;
neither restriction nor punishment constitutes ameliorative efforts; and that “disadvantage”
relates to vulnerability, prejudice, and negative social characterizations. As the Aboriginal
Fisheries Strategy met all the requirements outlined above, the Court concluded that the program
was constitutionally sound and applicable under s. 15(2), and thus dismissed Mr. Kapp’s appeal.
Concurring Decision
Differing from the majority in his logic, Bastarache J. thought that a s. 15(1) analysis was
not necessary nor applicable to the question posed in the appeal. In agreeance with Kirkpatrick
J.A. from the British Columbia Court of Appeal, Bastarache J. would dismiss the appeal solely
on the application of s. 25. S. 25 of the Charter asserts: “The guarantee in the Charter of certain
rights and freedoms shall not be construed so as to abrogate or derogate from any [A]boriginal,
treaty or other rights or freedoms that pertain to the [A]boriginal peoples of Canada including (a)
any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763;
and (b) any rights or freedoms that now exist by way of land claims agreements or may be so
acquired” (1982).

32
Through an examination of the role of s. 25, Bastarache J. determined that the purpose of
s. 25 is to protect the rights of Aboriginal peoples, “where the application of the Charter
protections for individuals would diminish the distinctive, collective and cultural identity of an
[A]boriginal group” (R. v. Kapp, 2008, p. 487). In essence, Bastarache J. expressed his view that
s. 25 necessarily shielded the freedoms the pilot sales program provided from being subject to a
s. 15(1) inquiry. Finally, Justice Bastarache acknowledged his stance on the scope of “other
rights or freedoms” in s. 25, a topic not yet adjudicated by the Court. While the majority of the
Court understood this phrase to invoke the rights or freedoms of a constitutional character,
Bastarache J. argued that a broader approach was more appropriate.
Analysis
As per Sharpe and Roach’s (2021) discussion in “Chapter 15: Equality”, it is evident that
the Supreme Court of Canada’s decision on R. v. Kapp significantly impacted the legal system’s
approach to s. 15 equality cases. Initially, the Court reiterated the importance of an insistence on
substantive equality rather than formal equality. As this is the primary goal of s. 15 as a whole,
the Court identified the relevance of s. 15(2) and how it works to contribute to the substantive
equality objective. As mentioned in the rationale section, the Chief Justice and Abella J.
highlighted that the underlying focus of the Charter provision is to uphold a society where all
human beings are regarded with concern, respect, and consideration.
Foremost, the test for equality was established for the third time in R. v. Kapp. In their
analysis, the Court recognized the contribution made by Law v. Canada [1999] to the equality
test yet understood the confusion and burden that the case’s resolution caused lower courts. The
Court decided to revise the test for equality to one that aligned more closely with the original
Andrews v. Law Society of British Columbia [1989] test while still keeping the significance of

33
Law’s decision in mind. Rather than employing human dignity as part of the legal test, the Court
went back to focusing on whether a distinction based on an enumerated or analogous ground has
been made and whether the distinction creates a disadvantage by perpetuating prejudice or
stereotype. Consequently, this decision changed the precedent for all equality guarantee
challenges thereafter.
Tsilhqot’in Nation v. British Columbia [2014]
Case Overview and Majority Decision
The Tsilhqot’in Nation v. British Columbia case was set in motion in 1983 when the
Province of British Columbia issued a forestry license for land pertaining to the territory at issue.
The Xeni Gwet’in First Nation, one of the six bands that make up the Tsilhqot’in Nation,
objected the license and sought to prohibit commercial logging on the land. The land sought
constitutes approximately five percent of what the Tsilhqot’in regard as their traditional lands.
The conversations on the claim seized when the Xeni Gwet’in requested a right of first refusal to
logging.
In 1998, the proceeding was revised to include a claim for Aboriginal title on behalf of all
Tsilhqot’in Nation peoples, in part as a result of the traction since made by other Indigenous
bodies on the leverage of s. 35. In 2002, the trial was heard before the British Columbia Supreme
Court. Vickers J., the trial judge, found that the Tsilhqot’in people were, in principle, entitled to a
declaration of Aboriginal title, but denied the Nation a declaration of title on procedural grounds.
In 2012, the British Columbia Court of Appeal held that the claim to Aboriginal title had not
been established; however, granted the possibility of a future claim to title concerning specific
sites within the territory originally sought. The Tsilhqot’in Nation, represented by the Chief of
Xeni Gwet’in First Nation, Roger William, appealed the British Columbia Court of Appeal’s

34
decision to the Supreme Court of Canada and presented their case to the Court on November 7th,
2013 (Lamb-Yorski, 2023).
Present at the hearing and a part of the decision-making was Chief Justice McLachlin, as
well as LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, and Wagner JJ. Principally,
the main legal questions to be decided by the Supreme Court of Canada were as follows: What is
the test for Aboriginal title to land? If title is established, what rights does it confer? What are the
constitutional constraints on provincial regulation of land under Aboriginal title? Finally, how are
the broader public interests to be reconciled with the rights conferred by Aboriginal title?
In a unanimous decision delivered by Chief Justice McLachlin on June 26th, 2014, the
Supreme Court of Canada allowed the appeal and ruled that the Tsilhqot’in Nation did have a
claim to Aboriginal title over the area requested. Further, the Court advanced a declaration that
the Province of British Columbia breached its duty to consult and thus granted one owed to the
Tsilhqot’in Nation.
Rationale
To preface the Court’s justification behind their decision on the Tsilhqot’in case, Chief
Justice McLachlin acknowledged and reviewed prior landmark decisions, including Sparrow,
Van der Peet, Guerin v. The Queen [1984], R. v. Marshall [1999], and Delgamuukw. In support
of the determinations previously made, McLachlin C.J. applied Delgamuukw’s three-step test on
Aboriginal title to the present case. However, before subjecting the appellants to the test,
McLachlin C.J. added an extra detail to the first requirement of the test: the occupation sought to
be proven must be sufficient to ground Aboriginal title. The Chief Justice elaborated: “What is
required is a culturally sensitive approach to sufficiency of occupation based on the dual
perspectives of the Aboriginal group in question – its laws, practices, size, technological ability

35
and the character of the land claimed – and the common law notion of possession as a basis for
title” (Tsilhqot’in Nation v. British Columbia, 2014, para. 41). Upon an expansive review of the
claim, the Court concluded that Tsilhqot’in Nation successfully and sufficiently proved exclusive
occupation at the time of sovereignty.
In response to the remaining inquiries, the Court asserted: “Aboriginal title confers…the
right to decide how the land will be used; the right of enjoyment and occupancy of the land; the
right to possess the land; the right to the economic benefits of the land; and the right to
proactively use and manage the land” (Tsilhqot’in Nation v. British Columbia, 2014, para. 73).
Further, McLachlin C.J. reiterated the inherent restriction on Aboriginal title, being that the land
in question cannot be alienated by the possessing Indigenous nation as Aboriginal title is
collective and meant to be preserved for succeeding generations. Lastly, the Court clarified the
three components necessary for the government to justify an infringement of Aboriginal title in
the name of the public’s interest:
1. that it discharged its procedural duty to consult and accommodate;
2. that its actions were backed by a compelling and substantive objective; and
3. that the governmental action is consistent with the Crown’s fiduciary obligation to the
group.
In essence, the Court asserted that government infringements must prove a rational
connection between the incursion and the overarching goal, follow a minimal impairment
principle when doing so, and ensure the benefits to be expected outweigh the adverse effects on
the Indigenous interest in order to be justified.
In closing, McLachlin C.J. briefly discussed the limitations that provincial governments
have on certain regulations as a result of Aboriginal title presence. The Court determined that

36
there is no place for the application of the doctrine of interjurisdictional immunity (a legal
doctrine to insulate the activities of one level of government from another) in the present case, as
the Province of British Columbia had advanced, and thus declared its irrelevance. Rather, the
Court contended that provincial regulation of general application will apply to Aboriginal rights,
subject to the s. 35 infringement and justification framework.
Analysis
Tsilhqot’in Nation v. British Columbia (2014) was another groundbreaking decision in
Canada. In an all-encompassing, powerful manner, Chief Justice McLachlin articulated the
significance and distinctiveness of cases like Tsilqot’in Nation stating:
The principles developed in Calder, Guerin and Sparrow were consolidated and applied
in the context of a claim for Aboriginal title in Delgamuukw v. British Columbia, [1997] 3
S.C.R. 1010. This Court confirmed the sui generis nature of the rights and obligations to
which the Crown’s relationship with Aboriginal peoples gives rise, and stated that what
makes Aboriginal title unique is that it arises from possession before the assertion of
British sovereignty, as distinguished from other estates such as fee simple that arise
afterward. The dual perspectives of the common law and of the Aboriginal group bear
equal weight in evaluating a claim for Aboriginal title. (para. 14)
Moreover, not only did the Court apply the principles outlined in preceding cases like
Delgamuukw, but they granted an Indigenous nation title to a portion of their ancestral lands for
the first time in Canadian legal history. As Lawrence (2015) identifies, the Tsilhqot’in case
clarified the framework for claiming Aboriginal title, and conversely, how title can be justifiably
infringed upon; thus, easing the process for future Indigenous nations to pursue title to their own
unceded territory if they desire.

37
Purposive Analysis
Throughout the course of the research, the amalgamation of data accumulated, the
analytical process, and the contemplation of information required to produce this descriptive
analysis, numerous key takeaways concerning the meaningfulness of this project have presented
themselves. In adherence to the scope of this thesis, I will discuss below the three central ideas
that I have realized throughout this academic exercise: the growth of the topics at stake regarding
the impact they have on individuals and nations alike, the evolution of the legal approach to the
topics addressed, and the lack of accessible information currently available in this field of study.
From Fishing Nets to Aboriginal Title
Upon reflection on the research obtained throughout this process, a foremost theme has
emerged. In Sparrow, an Indigenous fisherman fought for his right to fish with the desired net
length of his choosing. Twenty-four years later, in Tsilqot’in Nation, an Indigenous nation fought
for absolute ownership of a portion of their traditional, historically occupied land. At first glance,
those two proceedings are of very different magnitudes. However, upon a closer look, it is
evident that one could not have succeeded without the other’s determined attempt. Evidently, the
substantive constitutional issues being approached today are all rooted in the seemingly less
significant cases. Tsilqot’in Nation would not have been warranted the opportunity to challenge
their circumstances had it not been for the efforts of Mr. Sparrow, Ms. Van der Peet,
Delgamuukw, and many others. Likewise, Chief Justice McLachlin would not have been in the
position to grant Tsilqot’in Nation title to their ancestral lands, had it not been for the groundbreaking, precedent analysis by Chief Justice Dickson in Sparrow.

38
Evolution of the Supreme Court of Canada
In addition to acknowledging the significance of contemporary proceedings, it is
necessary to address the establishment of the Supreme Court of Canada regarding their approach
to Indigenous rights in Canada. Five decades ago, in Calder et al., an Indigenous case on
Aboriginal title was ultimately decided on the basis of a technicality. Presently, the Supreme
Court of Canada is more experienced and proficient when it comes to Indigenous rights-related
cases. Arguably, the Court, as a body, is less concerned about the legalities and more aware of the
implications of their determinations. Rather than approaching Indigenous rights cases as they
would with any other, typically through a standard colonial lens, the Court recognizes the sui
generis nature, gravitates toward the principal issue, and makes an informed determination based
on the applicable information. As observed in Delgamuukw, the revisions to the plaintiff’s initial
proceedings did not automatically cause for dismissal. Rather, the Court made a decision based
on the evidence presented and proceeded with the case accordingly.
Moreover, the Supreme Court of Canada’s development of stipulations regarding what
constitutes evidence is notable. In Delgamuukw, lower courts declined the evidence presented by
the Indigenous nations, deeming oral history unfit for the desired outcome. When the case was
brought forth to the Supreme Court of Canada, Chief Justice Lamer articulated, “Given that the
[A]boriginal rights recognized and affirmed by s. 35(1) are defined by reference to pre-contact
practices or… pre-sovereignty occupation, those [oral] histories play a crucial role in the
litigation of [A]boriginal rights” (Delgamuukw v. British Columbia, 1997, para. 84).
In light of recent decisions released by the Supreme Court of Canada (Dickson v. Vuntut
Gwitchin First Nation [2024]; Reference re An Act respecting First Nations, Inuit, and Métis
children, youth and families [2024]; Shot Both Sides v. Canada [2024]), it is worth noting the

39
marked effort demonstrated by the Court to address Indigenous rights in Canada. As mentioned
above, the Supreme Court of Canada is only capable of accepting approximately 65 to 80 appeals
per year; therefore, only the most pressing of appeals are received. Thus, another element of the
Court’s progression is its commitment to addressing issues relating to the rights of Indigenous
peoples in Canada. Acknowledging and responding to the notion that Indigenous rights appeals
are to be met with equal levels of concern and respect as all other appeals is an act of
reconciliation, and it is evident that the Supreme Court of Canada is aware of that.
A Call for Accessibility
Finally, it is necessary to address the lack of comprehensible, accessible literature when it
comes to academia surrounding the topic of Indigenous rights in Canada. Although any internetbearing individual can indeed access the Supreme Court of Canada’s database, the nature of the
language and legal terms referenced in decisions can be quite foreign to most individuals, to the
point where individuals are unable to fully grasp the logical thought process behind the decision.
Furthermore, as discovered throughout my research process, a majority of the second-hand,
intelligible literature on the decisions and their implications is either approached through a
reportative perspective or an opinion-driven perspective. While both approaches are appreciated
in their respective ways, neither truly depicts the cases and their ramifications in a just,
educational manner. On the contrary, there appears to be a gap in the research concerning wholly,
objective evaluations of the Supreme Court of Canada’s recognition and affirmation of
Indigenous rights in Canada. Not only is it relevant for non-Indigenous peoples to be educated on
Indigenous treaty rights, as was exemplified in Kapp, but it is especially relevant for Indigenous
peoples to understand how their treaty rights have gradually developed. More importantly, it is
relevant for Indigenous peoples across Canada to recognize those who fought for their right to

40
exercise certain traditional practices. Thus, it would be highly valuable for a greater emphasis to
be placed on the production of more accessible literature concerning this topic.
Discussion and Conclusion
Initially, the objective of this project was to produce an article on the Supreme Court of
Canada’s contribution to the rights exercised by Indigenous peoples across Canada. As an
Indigenous person in Canada, I have a profound interest in the development of the rights I
exercise. From when the rights were discerned to be infringed upon, to who proceeded to
challenge the current legal framework, to what the thought process behind the grant or denial of
the rights was, I am perpetually dedicated to learning and knowing when it comes to landmark
decisions, and I presume I am not the only one. As previously noted, the promotion of
reconciliation as a response to past injustice aligns with a commitment to the administration of
knowledge in ways that are accessible and able to be synthesized by individuals who are not
necessarily familiar with legal jargon. I hope that this project has served to narrow the gap of
research in this field and can be used as a reference for individuals interested in learning about
the evolution of Indigenous rights in Canada, both scholarly and non-scholarly alike.
In regard to a subjective analysis of the Supreme Court of Canada’s progress concerning
Indigenous rights in Canada, two key conclusions arise. With respect to the jurisprudential
approach to Indigenous rights-related cases, the Court’s acknowledgement of the distinctive
nature of Indigenous issues is appreciated. By definition, the promotion of justice is the
commitment to the administration of equal concern and respect for all persons (Miller, 2023).
Being committed to upholding and enforcing justice starts with recognizing and responding to
existing injustice, including the wrongful initiatives administered by the federal government and
the legal system unto Indigenous peoples for centuries in Canada. Through their recognition of

41
oral history, storytelling, spiritual performances, and other cultural practices as satisfactory
evidence in a court setting, it is clear that the Supreme Court of Canada is committed to equitable
justice.
Furthermore, the substantive impact that early interpretations have on modern
proceedings deserves great respect and recognition. If it were not for the expertise and
intellectual contributions of the honourable former Chief Justices Laskin, Dickson, Lamer, and
McLachlin, as well as Canada’s current Chief Justice Wagner, the approach to and status of
Indigenous rights in Canada may very well be tremendously different.
Limitations
In adherence with the relatively limited scope of this thesis, this project does not posit
itself as a comprehensive, exhaustive critical analysis of every case relating to the development
of Indigenous rights in Canada since the enactment of the Constitution Act of 1982. Rather, if
that were the aim, Guerin v. The Queen [1984], R. v. Gladstone [1996], Corbiere v. Canada
(Minister of Indian and Northern Affairs [1999], R. v. Marshall [1999], R. v. Powley [2003], and
numerous other innovative, precedent-setting cases would have been included. The objective of
this project was to provide an introductory, foundational basis on the subject matter. Therefore,
perhaps in a separate context, this thesis would have sought to explore supplementary literature,
subjective analyses, political implications, and the future course of action, in addition to what is
presently examined in this project.
Conclusion
The Supreme Court of Canada’s impact on Indigenous rights in Canada since the
enactment of the Constitution Act of 1982 is substantial. Through their production of exceptional
analyses, interpretation of terminology, and willingness to listen to Indigenous peoples voice

42
their concerns, the Court’s contribution is unparalleled. Although separate bodies have the ability
to grant Indigenous peoples rights to exercise their traditional practices, the Supreme Court of
Canada is the highest-ranking body capable of enforcing and waiving such permitting policies;
therefore, their contributions are highly relevant.
Above all, the Supreme Court of Canada’s acknowledgement of Aboriginal title in Calder
et al. and rendering of the dynamic nature of existing Aboriginal and treaty rights in Sparrow laid
the foundation for all subsequent cases and their respective determinations. Not only does the
Court’s discernments and conclusions serve as precedent for lower courts, but for future
generations of legal proceedings, policy implications, and perceptions held by everyday citizens,
as well. As identified throughout this article, the persistent efforts made by Indigenous peoples,
coupled with the wisdom bestowed by the Supreme Court of Canada, have strengthened the
understanding of Indigenous rights in Canada. Therefore, through the combined effort of both
parties, the recognition and affirmation of Indigenous rights in Canada will continue to transpire.

43
References
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143
Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (UK), 1982, c 11.
Centre for Constitutional Studies. (n.d.). Section 35. https://www.constitutionalstudies.ca/theconstitution/aboriginal-rights/
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203
Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10
Guerin v. The Queen, [1984] 2 S.C.R. 335
Hanson, E. (2009a). Aboriginal title. The University of British Columbia First Nations and
Indigenous Studies. https://indigenousfoundations.arts.ubc.ca/aboriginal_title/
Hanson, E. (2009b). Constitution express. The University of British Columbia First Nations and
Indigenous Studies. https://indigenousfoundations.arts.ubc.ca/constitution_express/
Hanson, E., & Salomons, T. (2009). Van der Peet case. The University of British Columbia First
Nations and Indigenous Studies.
https://indigenousfoundations.arts.ubc.ca/van_der_peet_case/
Indian Act (R.S.C., 1985, c. I-5)
King, D. (2023). Equality 15(1) and 15(2) [Handout]. Mount Royal University D2L Brightspace.
https://learn.mru.ca/
Lamb-Yorski, M. (2023, February 24). Roger William returns as chief of Xeni Gwet’in First
Nation. The Williams Lake Tribune. https://www.wltribune.com/news/roger-william-

44
returns-as-chief-of-xeni-gwetin-first-nation-5551443#:~:text=William%20was%
20front%20and%20centre,going%20to%20do%20with%20it.
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497
Lawrence, A. (2015). Tsilhqot’in Nation v British Columbia (2014): An expansion of title and
justification. Centre for Constitutional Studies. https://www.constitutionalstudies.ca
/2015/04/tsilhqotin-nation-v-british-columbia-2014-an-expansion-of-title-andjustification/#:~:text=Decision,-The%20Supreme%20Court&text=In%20this%20case%
2C%20the%20Supreme,it%20issued%20a%20forestry%20license.
Martin, J. (2015, March 4). R v Morris: Night hikers beware. CanLII Connects.
https://canliiconnects.org/en/commentaries/36089
Miller, D. (2023). Justice. In E. N. Zalta & U. Nodelman (Eds.), The Stanford encyclopedia of
philosophy (Fall 2023 ed.). Metaphysics Research Lab, Stanford University.
https://plato.stanford.edu/entries/justice/
R. v. Gladstone, [1996] 2 S.C.R. 723
R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41
R. v. Marshall, [1999] 3 S.C.R. 456
R. v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915
R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43
R. v. Sparrow, [1990] 1 S.C.R. 1075
R. v. Van der Peet, [1996] 2 S.C.R. 507
Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024
SCC 5

45
Salomons, T. (2009). Calder case. The University of British Columbia First Nations and
Indigenous Studies. https://indigenousfoundations.arts.ubc.ca/calder_case/
Salomons, T., & Hanson, E. (2009). Sparrow case. The University of British Columbia First
Nations and Indigenous Studies. https://indigenousfoundations.arts.ubc.ca/sparrow_case/
Sharpe, E., & Roach, K. (2021). The Charter of Rights and Freedoms (7th ed.). Toronto, Canada:
Irwin Law Inc.
6 landmark rulings on native rights. (2013, January 8). CBC News.
https://www.cbc.ca/news/canada/6-landmark-rulings-on-native-rights-1.1316961
Shot Both Sides v. Canada, 2024 SCC 12
Supreme Court of Canada. (2013). The Supreme Court of Canada.
https://publications.gc.ca/collections/collection_2016/csc-scc/JU5-26-2013-eng.pdf
The Constitution Express and its role in entrenching Indigenous rights. (2016, October 17).
Indigenous Corporate Training Inc. https://www.ictinc.ca/blog/the-constitution-expressand-its-role-in-entrenching-indigenous-rights
The University of British Columbia First Nations and Indigenous Studies. (2009). Royal
Proclamation, 1763. https://indigenousfoundations.arts.ubc.ca/royal_proclamation_1763/
Tsilhqot’in Nation v. British Columbia, 2014 SCC 14, [2014] 2 S.C.R. 256
Walsh, J. (2023, September 20). Supreme Court of Canada cases involving Indigenous peoples.
Simon Fraser University. https://www.lib.sfu.ca/help/researchassistance/subject/criminology/legal-information/indigenous-scc-cases
Youngblood Henderson, J. (2010). Constitutional vision and judicial commitment: Aboriginal
and treaty rights in Canada. Australian Indigenous Law Review, 14(2), 24-48.
https://www.jstor.org/stable/26423180