(Almost) Everything You Need to Know About What the Supreme Court of Canada Thinks of Indigenous and Aboriginal Rights, Treaties and Title in 1,523 Words - And Why We Still Have So Much Work to Do

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I got fully into the business of Indigenous and Aboriginal rights litigation back on 5 November 1998 when the very gracious Donald Marshall Jr. shook my hand in the Supreme Court of Canada. He had by then been fighting for years in the courts for his rights as a Mi’kmaq to catch and sell $787.10 worth of eels that he and another Mi’kmaq had caught in the waters of Nova Scotia. When the R. v. Marshall, [1999] 3 SCR 456 decision was issued a bit under a year later, it shook the foundations of Canadian fisheries regulations in Atlantic Canada. And they haven’t stopped shaking since.

Marshall built on a critical mass of positive 1990s Indigenous rights jurisprudence at the SCC, where in 1996 alone the Court issued six judgments on Quebec and British Columbia fishing rights (2/3rds of which favoured Indigenous peoples). I had just qualified as a lawyer in 1995, so when the SCC added to the ‘96 bounty by releasing its landmark Delgamuukw v. British Columbia, [1997] 3 SCR 1010 decision on Indigenous title the following year, it seemed to me there was so much positive momentum that SCC progress on Indigenous rights would never end.

It wasn’t until a few years later when I was sitting in the Delgamuukw Boardroom of the Gitxsan Hereditary Chiefs in Hazelton, BC, photos of the elders who had testified at the trial gazing down upon me from the surrounding walls, that I came to understand directly from the Chiefs just how capricious SCC Indigenous rights judgments could be for those who had devoted enormous community resources and time to pursue a case, only to be told a new trial was needed after a 374 day (!) trial had already been held. Twenty-four years after the Delgamuukw judgment there still hasn’t been a new trial. And the Gitxsan still haven’t had their title affirmed.

The Tsilhqot’in Nation fared better with their title claim before the SCC 17 years post-Delgamuukw, just as the Gitxsan and Wet’suet'en had arguably fared better in Delgamuukw than the Nisga'a did 23 years earlier in Calder. But having participated in the Tsilhot’in Nation v. British Columbia, 2007 BCSC 1700 week-long mid-trial settlement conference in Vancouver hosted by BC’s Chief Justice (a trial which lasted a mere 339 days!), I remain perplexed over what Tsilhot’in Nation v. British Columbia, 2014 SCC 44 had by way of evidence for the SCC to latch onto that Delgamuukw didn’t. Other than 17 years of intellectual evolution on Indigenous title.

In contemplating where the SCC might be headed next on Indigenous rights, I thought some might find useful my take after about 25 years in the business on (almost) everything you need to know about what the Supreme Court of Canada thinks of Indigenous and Aboriginal rights, treaties and title in 1,523 words.

I could write 15,230. Or even 152,300 words. And still not be done. So please just take these 1,523 as a start, which only focus on the rights found in s. 35 of the Constitution Act, 1982.

Fish is Okay, But We’re Not Sure About Selling It

Although there were a string of positive Aboriginal fishing rights SCC cases in the 90s, Marshall seemed to usher in a now more than two-decade-long pause in the Court further advancing such rights. Lax Kw’alaams Indian Band v. Canada, 2011 SCC 56 marked the SCC’s last substantive consideration of Indigenous fishing rights where the Court rejected commercial Aboriginal rights to fish on the northwest coast of BC, thus standing in stark contrast to the 12 years earlier decision of R. v. Marshall, [1999] 3 SCR 456 which had found an Aboriginal treaty right for Mi’kmaq to fish commercially for a “moderate livelihood” on the east coast.

Three years before Marshall, 1996 arguably marked the zenith of the SCC’s consideration of not just Aboriginal fishing rights but of any Indigenous rights:

The 1990s had started with R. v. Howard, [1994] 2 SCR 299 rejecting any kind of Aboriginal right to fish pickerel in Ontario for the Mississaugi of Hiawatha First Nation, but four years before that R. v. Sparrow, [1990] 1 SCR 2017 had found for the Musqueam Indian Band that you don’t need a treaty to claim an Aboriginal right to fish.

Hunting For Food is Mostly Okay, But Be Careful Where You Hunt

The same year Marshall was shaking up Atlantic Canada, R. v. Sundown, [1999] 1 SCR 393 had a more modest but positive impact on the Prairies in finding an Aboriginal treaty right for the Cree to build a cabin in a provincial park for purposes of hunting and fishing for food. R. v. Badger, [1996] 1 SCR 771 had earlier held during that 1996 golden year that an Aboriginal treaty right to hunt was somewhat established.

R. v. Sioui, [1990] 1 SCR 1025 found during the groundbreaking year of Sparrow that traditional non-commercial cutting of trees, camping and making fires in a park were authorized as an Aboriginal treaty right in Quebec for the Huron band, but R. v Horseman, [1990] 1 SCR 901 found that same year (with the Court split 4-3) that bartering a grizzly bear hide which had been shot in self-defence was not a protected treaty right.

In the early days of Indigenous rights litigation of the ‘80s, hunting rights were a 50-50 draw before the SCC, with R. v. Horse, [1988] 1 SCR 187 concluding there was no Aboriginal treaty right to hunt on Treaty 6 private lands, but Simon v. The Queen, [1985] 2 SCR 387 concluding there was an Aboriginal treaty right to possess firearms and ammunition for hunting for the Mi'kmaq.

Trees May Be Okay, But Don’t Sell Them

The SCC has generally been cooler to Aboriginal logging rights than to fishing or hunting rights, other than in the consultation/accommodation realm. While in R. v. Sappier; R. v. Gray, 2006 SCC 54 Mi’kmaq and Maliseet non-commercial cutting of timber on Crown land for personal use was found to be a protected Aboriginal right, one year earlier in R. v. Marshall; R. v. Bernard, 2005 SCC 43 the SCC had found there to be no right or treaty right to commercial logging by Mi’kmaq on Crown land.

Trade Isn’t Okay

Demonstrating how the SCC can effectively be a destroyer of rights as much as an enabler of them, in Mitchell v. M.N.R., 2001 SCC 33 the Court overturned both Federal Court and Federal Court of Appeal judgments favouring an Aboriginal Mohawk right to bring goods into Canada duty-free.

[Ed. note not counting in my 1,523 words: over a decade later I ran a border crossing Aboriginal rights constitutional test case supported by the Mohawks of Akwesasne, where the same Grand Chief Mike Mitchell of the Mitchell case was the most eloquent star witness, but we didn’t even get past the Ontario Court of Justice, in part because of overshadowing by the SCC’s Mitchell judgment even though our new case only involved Indigenous mobility rather than trade: R. v. Shenandoah, 2015 ONCJ 541; background: Fatah, "Canada’s Toughest Border Crossing” The Walrus (2019)].

Title Exists, But Maybe Not For You & We’re Still Figuring Out What It Means

The SCC’s consideration of Aboriginal title has involved some of its most tortured reasoning and procedure, with decades passing between the Court’s major substantive considerations of the issue, which has really only happened three times (with two other cases requiring mention, but in the 1991 case title didn’t get the analysis it deserved and in the 2020 case title was a definitional rather than substantive issue):

  • Calder v. A-G B.C., [1973] SCR 313: Court found 6-3 against Aboriginal title for the Ni’sgaa, but dissent was groundbreaking;

  • Ontario v. Bear Island Foundation, [1991] 2 SCR 570: SCC upheld finding after 130 day trial that Aboriginal “rights" had been extinguished by Robinson Huron Treaty, without much consideration of nature of title;

  • Delgamuukw v. British Columbia, [1997] 3 SCR 1010: Aboriginal title does exist, but the Gitxsan and Wet’suwet’en require a new trial (after a 374-day trial) because of trial judge errors;

  • Tsilhqot’in Nation v. British Columbia, 2014 SCC 44: Aboriginal title established; while provincial and federal laws may still apply to that land “Once Aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the Aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group.”

  • Newfoundland & Labrador v. Uashaunnuat, 2020 SCC 4: Court split 5-4 with strongly worded diverging opinions, the majority finding “From the civilian perspective, as it is a sui generis right, Aboriginal title is properly characterized as neither a personal right nor a real right nor a combination of the two even though it may appear to have characteristics of both real and personal rights” whereas the dissent held “Finding that the Quebec Superior Court has jurisdiction to issue a declaration recognizing Aboriginal rights in the part of the traditional territory that is situated in Newfoundland and Labrador would have serious consequences for Canadian federalism.”

So one win on title litigation in close to 50 years for Indigenous peoples, with huge resources required to litigate future cases.

Consultation Has Limits & We’re Inconsistent Over Whether It’s Adequate

While the '90s was the decade of the fishing and to a lesser degree hunting you can catch it but probably not sell it decisions, the decades since could be termed the inconsistent consult/accommodate age:

Thus of the 12 consult/accommodate decided SCC cases to date, 5 could be said to have favoured Indigenous peoples, and 7 favoured the Crown and development proponents.

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So there you have it. 1,523 words attempting to distill down all the SCC’s threads of thought. If I was to sum it all up in two words, they would be: HUGE INCONSISTENCY. And that’s even when the same judges were on the Court.

And remember these are the cases that were able to grab the coveted brass ring of winning leave to appeal which is required for almost all SCC appeals. That the SCC seems to have dramatically cut back on its Indigenous rights decisions in recent decades doesn’t mean Indigenous peoples are fighting any less for their rights in Canada’s courts. It just means the SCC isn’t prepared to hear those cases already decided by appellate courts below.

It’s quite true that Aboriginal rights, treaties and title are all people specific, place-specific, and thing specific. But if the goal of the SCC as a court which doesn’t deal merely with legal errors in courts below, but rather requires national public importance of issues to be granted leave to appeal, is supposed to guide everyone for the future so that we don’t keep having to come back to the SCC, how is it making out?

The Haida/Taku decisions (which are often spoken of in the same breath, and in consistently positive tones) are emblematic of the impossibility of predicting SCC results. While the Court readily found a duty to consult and almost a presumption of accommodation for the Haida concerning timber cutting, it’s often forgotten that factually there was what could only be termed a very poor consultation for the Taku River Tlingit First Nation on a mining road (I’ve spoken with those in the know), with zero efforts to accommodate the concerns they raised, but the SCC nonetheless thought it all just fine.

The foregoing results suggest the SCC mostly lost interest in hunting and fishing rights after the end of the 90s, lost interest in timber rights after the following decade of the 2000s, will still consider title claims for those with the immense resources necessary to bring title before the Court, will likewise still consider consult/accommodate issues which may require more modest (but still substantial) litigation resources, however the odds are less than 50-50 that the Court will find such rights to be breached (even in those cases for which it is prepared to grant leave to appeal), and will only rarely consider any other type of Indigenous rights claims like trade.

However, given how everyone in the Crown (I was on the inside at the time) was so taken by surprise by decisions like Marshall and Haida Nation which spurred the Crown to unprecedented consequential actions (new offices established, new negotiations commenced, new funding initiated), it can’t be said that attempting to bring Indigenous rights, treaty and title issues before the SCC isn’t worth it. It just takes a lot of resources, and claimants need to live with the reality that the SCC’s actions on both granting leave to appeal and positions deciding cases can’t be predicted in advance.

As we move out a full generation past the Court’s cornucopia of 1990s decisions, perhaps even those decisions will merit reconsideration with new results, just as the Court consistently reconsiders its position a few decades on in civil, criminal and family law. I wonder if the the appointment of the Court’s first Indigenous judge could even mark the dawn of a new age in Canadian Indigenous and Aboriginal jurisprudence.

Gordon Scott Campbell practices Indigenous and Aboriginal law throughout Canada with Aubry Campbell MacLean.