Indigenous Peoples of Canada and their Rights in …...peoples in Canada. The paper comprises of 3 parts. Part 1 outlines the modern-day situation of Indigenous peoples in Canada and

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　カナダ国民の約5%はヨーロッパ人が北米大陸に到着する前から定住していた先住民族の出身である。同国の先住民は大きくファーストネーション（First Nations）、イヌイット（Inuit）、メティス（Métis）の三つに分類され、ファーストネーションはカナダ全土に広く分布する一方、イヌイットはカナダ北部に集中、ヨーロッパ系移民とファーストネーションの混血で独自の文化を形成したメティスは、カナダ全土の都市部に集中している。　これら先住民の権利をめぐるカナダの法律は、過去30年間で大きく変化し、現代カナダにおいて先住民の権利は社会のさまざまな分野に密接に関連している。さらに、先住民との良好な関係構築はカナダでの事業展開に不可欠な要素であり、天然資源業界も例外ではない。同国では日常的に石油開発事業やパイプライン敷設事業に反対する先住民団体や、その権利をめぐる訴訟がメディアに取り上げられており、先住民との和解はカナダ社会の大きな課題の一つである。　本稿では、最近のカナダ最高裁判所の判例も踏まえ、同国における先住民の権利について紹介する。Part 1では、カナダの先住民とヨーロッパ系移民の歴史的関係を考察し、先住民との歴史的条約の変遷をたどる。北米大陸でイギリスとフランスが覇権を争った18世紀初頭は、ヨーロッパ系移民の数が先住民に対して少なかったこと、ヨーロッパ人同士の覇権争いの過程で先住民と同盟関係を結ぶ必要があったことから、先住民の権利を保障し彼らに土地の割譲を求めない比較的対等な「平和と友好条約」

（Peace and Friendship Treaties）が締結された。しかし、イギリスがフランスを排除し西部開拓を推進すると、先住民の狩猟・漁

ぎょろう

撈権を認めつつも土地の割譲を迫る「番号付き条約」（Numbered Treaties）が締結され、彼らの土地は僅かな「先住民保護区」（Reserve）を除き消滅した。　他方、ブリティッシュ・コロンビア州の大部分では、土地の割譲条項を含む「番号付き条約」は締結されず、彼らの土地所有権は消滅していないとされる。Part 1では、これら歴史的背景を繙

ひもと

きつつ、近年、同国内で締結されている「近代的条約」（Modern Treaties）の概要や、「番号付き条約」の及ぶ範囲でも起こり得る法的課題についても言及する。　Part 2では、ハーパー前首相とトルドー現首相の先住民に関する政策の差を対比し、先住民の権利を取り巻くカナダの政治情勢に焦点を当てる。また、連邦政府の先住民に係る予算の増減から垣間見られる先住民問題の政治的重要性を考察し、加えてトルドー現首相の選挙時の公約であった「先住民の権利に関する国際連合宣言」（United Nations Declaration on the Rights of Indigenous Peoples： UNDRIP）の国内法への反映をめぐる取り組みを分析する。更に、天然資源業界にも影響を及ぼす連邦議会の「法

はじめに

Indigenous Peoples of Canada and their Rights in the Modern JurisprudenceAn Overviewカナダ先住民の法的地位と権利：カナダ最高裁判決を踏まえた最近の動向

University of Calgary, Faculty of Law Matthew Warren, Brady Chapman

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案C-69」（Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act）を先住民との和解という視座に立ってどのように理解できるか紹介する。　Part 3では、最近のカナダ最高裁判所の判決を踏まえ、先住民の定義、その権利の種類と権利の範囲、また、権利の侵害、侵害の正当化の可否について法的な解説を行う。先住民の権利をめぐる訴訟では、彼らの権利をどのように定義するか、複数ある先住民の権利のどれに該当するか、権利が侵害されているか、先住民への十分なコンサルテーション（Consultation）が実施されたか、そして仮に権利が侵害されている場合はこの侵害を正当化できるかが争点となる。先住民の権利は、カナダの憲法法典の一つである1982年憲法第35条（s. 35 of the Constitution Act, 1982）に規定されており、それ以降、政府が一方的に先住民の権利を無効にすることは許されない。先住民の権利をめぐる法律は近年急速に整備されており、本稿では主に2000年代以降のカナダ最高裁判所の判決から導かれる準則を紹介する。　カナダの先住民の権利をめぐる訴訟は、判決まで数年から十数年を経ることが多く、このため現在も係争中の裁判が数多くある。更に、彼らの権利を明確化する近代的条約の交渉も並行して行われている。今後の判決次第で新たな準則がつくられる可能性がある一方、同国はイングランド法の影響を受けたケースローが重みを持つ国なので、2000年代以降のカナダ最高裁判所の判決が今後の先住民の権利をめぐる議論の枠組みになると思われる。

　The laws relating to the Indigenous peoples of Canada have evolved significantly in the last three decades, in particular since the entrenchment of Indigenous rights in s. 35 of the Constitution Act, 1982.＊1 The contemporary relevance of Indigenous peoples in Canada cannot be overlooked, as the Parliament of the Canada, the provinces, as well as the Canadian judiciary have progressively reiterated the importance of reconciliation with Indigenous peoples in Canada. The rights of Indigenous peoples are more relevant than ever in Canada, and this is particularly pertinent in the natural resources industry.　The purpose of this paper is to provide an overview of the Canadian law relating to the Indigenous peoples in Canada. The paper comprises of 3 parts. Part 1 outlines the modern-day situation of Indigenous peoples in Canada and lays out the historical interaction between European settlers and Indigenous peoples. Part 2 considers the political change in Canada from the start of the Right Honourable Stephen Harper’s administration and transitioning into the Right Honourable Justin Trudeau’s administration. Part 3 examines the development of Canadian case law in regards to Indigenous peoples.

Introduction

Part 1. Historical Context

The Indigenous peoples of Canada

　According to Statistics Canada, there were over 1.6 million Indigenous people in Canada in 2016；this accounts for 4.9% of the total Canadian population.＊2 Canada’s Indigenous population is one of the fastest growing populations in Canada. Between 2006 and

2016, the Indigenous population grew by 42.5%, which was more than four times the growth rate of non-Indigenous populations in Canada. The increase in Canada’s Indigenous population is expected to continue in the next twenty years, and the number of Indigenous Canadians is anticipated to exceed 2.5 million.＊3


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Indigenous Peoples of Canada and their Rights in the Modern Jurisprudence: An Overview

　Statistics Canada proposes two reasons for the increase in the rapid population growth of Canada’s Ind igenous Peop les： natura l growth and se l f -identification.＊ 4 Firstly, Indigenous Canadians have higher fertility rates than the non-Indigenous groups and their life expectancy is also increasing. In addition, the Indigenous Canadians have a younger average age than non-Indigenous Canadians. The average age of the Indigenous Canadian population is 32.1, while the average age of non-Indigenous Canadians is 40.9.＊ 5 Secondly, in light of the socio-economic changes surrounding Canadian Indigenous peoples, more Canadians of Indigenous ancestry are identifying themselves as Indigenous.　Under s. 35 of the Constitution Act, 1982, Canada recognizes “Indians,” “Inuit,” and “Métis” as the three categories of Canadian Indigenous peoples. These groups are not defined in the Constitution Act, 1982. The d iv i s i on in to the three ca tegor i e s can be misleading, as there is a great degree of diversity within each category；the culture and language of Canadian Indigenous peoples varies greatly both between groups and within each group. For instance, the Indigenous people of Canada are divided into twelve distinct language families and further divided into more than seventy languages.＊6

（1）First Nations （Indian）：

　There are approximately 980,000 First Nations individuals in Canada today.＊7 In the Constitution Act, 1982, the term “Indian” is interpreted to include both

（i）the status Indians who are registered under the Indian Act＊8 and（ii）those individuals who do not have Indian status but self - identify as such and have connection to a reserve community.＊9

　While classified as a single category under the Constitution Act, 1982, Canadian First Nations comprise of a diverse group of people both culturally and linguistically. First Nations individuals inhabit large areas in Canada from the Atlantic, across the Great Plains, to the shores of the Pacific. They are mostly concentrated in the western provinces of British Columbia （17.7%）, Alberta （14.0%）, Manitoba （13.4%） and Saskatchewan （11.7%）.＊10 According to the 2016 census, 76.2% of Canadian First Nation individuals are

registered under the Indian Act； of these with registered or treaty status, 44.2% lived on a reserve.＊11

　The number of First Nation individuals is steadily growing in recent years. 23.8% of the First Nation individuals do not have registered or treaty status, and their population grew by 75.1% between 2006 and 2016. ＊12

（2）Inuit：

　There are currently almost over 65 ,000 Inuit Canadians.＊ 13 They live predominantly in Canada’s Northern regions, with population centers in Nunavut, Northwest Territories, Quebec, and Newfoundland and Labrador.　For the purposes of the Constitution Act, 1867,＊14 Inuit is considered“Indians”.＊ 15 Unlike the First Nations individuals, however, there is no federal Inuit registry.　About 72.8% of Inuit live in Inuit Nunagat, which is t h e t e r m u s e d t o d e s c r i b e n o t a p a r t i c u l a r administrative region of Canada, but rather the concept of traditional Inuit homeland in Canada. Geographically, Inuit Nunagat comprises of Nunatsiavut（Northern coastal Labrador）, Nunavik （Northern Quebec）, the territory of Nunavut, and the Inuvialuit region of the Northwest Territories.＊ 16 Inuit form the majority population in Nunavut and predominantly speak Inuktitut.＊17

（3）Métis：

　The Métis are a distinct group of people of mixed French-Canadian and First Nation ancestry. They are descendants of French fur-traders, who intermarried with various First Nations in the Canadian plains.　Today, the Métis population is present in every province and territory. In 2016, there were about 590,000 Métis, or 1.7% of the total population.＊ 18 80.3% of the Métis live in Ontario and the western provinces of Canada（Manitoba, Saskatchewan, Alberta, and British Columbia）.＊19 62.6% or nearly two-thirds of the Métis population lived in urban areas in 2016.＊20

　As statistics show, the Canadian Indigenous people are integrated into the contemporary Canadian society. Their current role in the Canadian society, as well as

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the discourse surrounding the Canadian Indigenous people must be viewed in the historical context. In the next section, the historical development of Canada in relation to the Indigenous people is examined.

Indigenous People in the History of Canada

　To understand the contemporary discourse of Canadian Indigenous people and their rights in modern-day Canada, an examination of Canada’s history is necessary. This section examines the major milestones of historical events.

Before Contact　Indigenous people maintain that their ancestors have lived in Canada since time immemorial.＊21 The earliest day of arrival of humans to the Americas is disputed amongst archaeologists, but most seem to agree that there were several waves of immigration, and that the first inhabitants of the Americas arrived by various routes from Siberia to Alaska after the ice ages.　Archaeologists speculate that about 13,000 years ago, Paleo-Indians arrived from Asia after the last ice age, following the retreat of glaciers due to a warmer climate.＊22 Around 4,000 years ago, the Tuniit（Paleo-Eskimos）crossed the Bering Strait from northern Asia and spread across from Alaska to Newfoundland and Labrador. The Tuniit were replaced approximately 1,000 years ago by the Thule, a new group from Alaska that became the ancestors of the modern-day Inuit.＊23

　Not much is known of the pre-contact Canada due to the lack of written records. However, archaeological evidences suggest that the ancestors of the Canadian Ind igenous peop l e s were connec ted w i th the Mesoamerican cultures through a vast and intricate network of trade.＊24

　In the 10th century to the 11th century, the Vikings arrived in the eastern parts of Canada. The Vikings discovered Iceland in 860, Greenland in 980, and a group of Vikings under Leif Ericson recorded in their saga of the discovery of Vinland. The “Saga of Eric the Red” and the “Saga of Greenland” recount of Vinland, Helluland, and Markland. It is believed that Helluland is Baffin Island, Markland is Labrador, and Vinland is an area between Newfoundland and New Brunswick. The

Vikings settled shortly in the early 11th century, but retreated to Greenland afterwards, maintaining an occasional contact with North America as late as the 14th century.＊25 Afterwards, contact ceased until John Cabot’s journey in 1497.

European Contact to the Treaty of Niagara　Christopher Columbus reached the Bahamas in 1492. A few years later, in 1497, John Cabot sailed from Bristol, England and reached Newfoundland. In 1534, Jacques Cartier sailed from St. Malo in Brittany, France and reached Gaspé, located in Quebec. The French started the colony of New France, with the establishment of Quebec City in 1608 by Samuel de Champlain.　The French and the English colonies in North America expanded, and eventually they fought several wars. During the War of the Spanish Succession （1702-1713）, the English conquered the French colony of Acadia（present-day Nova Scotia）, while the French retained the islands in the Atlantic, including Ile Royal

（Cape Breton Island）, Ile St. Jean （Prince Edward Island）and present-day New Brunswick.　Both the French and the English made alliances with the First Nations. The British made numerous treaties with the Mi’kmaq, the Maliseet and the Passamaquoddy nations between 1725 and 1779. The first of such Peace and Friendship Treaties was the Treaty of 1725

（Dummer’s Treaty）, signed in 1725 between the British Governor William Dummer and the Canadian Indigenous peoples . Unlike the later Numbered Treat i es in Western Canada , these Peace and Friendship Treaties in Atlantic Canada were about alliances and commercial relationships and did not involve the surrender of the land.　The defeat of the French in North America at the end of the Seven Years’ War in 1760 ended the conflict between the Brit ish and the French, as wel l as between their respective Indigenous allies. At the Treaty of Paris in 1763, the former French colonies in North America were dismantled and annexed by the British and the Spanish. The British sought stability and improved governance in their newly acquired territories in North America. In order to alleviate the nascent con f l i c t be tween the se t t l ers and the


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Indigenous peoples, the British issued the Royal Proclamation of 1763. In the Royal Proclamation of 1763, the land west of the Appalachian Mountains was declared to belong exclusively to the Crown for the use by the Indigenous peoples. No European was allowed to settle without the permission from the Crown.　Following the Royal Proclamation of 1763, the British concluded the Treaty of Niagara in 1764 with twenty-four First Nations. The Treaty of Niagara established the definition of the “Indian Country” for the British. The Crown claimed sovereignty on the Indian Country, but also declared that the land belonged to the First Nations that occupied them. The British then started to formally transfer the land from the First Nations to the Crown, which was resisted by various First Nations.　The tradition of concluding alliances through treaties continued. In the Western Great Lakes in the border region of the USA and the British North America, the British concluded several treaties with the Iroquois Confederacy. As a result, during the War of 1812 between the USA and Britain, many First Nations s ignator i es f ought f or the Br i t i sh aga ins t the Americans.　In the 1850s, the British concluded the Robinson Treaties, which would later become a model for the Numbered Treat ies in Western Canada . These Robinson Treaties were much more favorable to European sett lers than the previous Peace and Friendship Treaties. The Robinson Treaties included more aggress ive terms that foreshadowed the subsequent westward expansion. The three major characteristics of the Robinson Treaties are as follows：　（i） The Robinson Treaties involved a single payment

of a sum of money for the purchase of land, or in later treaties, payment of annuities over a period of time.

　（ii） The Indigenous peoples expressed concerns that their rights to occupy the land and hunt and fish on the land would be adversely affected by the surrender of the land. In early treaties such as Crawfo rd （1783）, McKee （1790）, o r Lake Simcoe （1798）, it was understood that these rights would be preserved for the First Nations. The initial European settlement was slow, and

there was not much tension over these rights. However, by 1850, the increasing European settlements created conflicts between the First Nations and the European settlers. The Crown’s representatives verbally agreed to these rights, but no written terms were included in the treaties before 1850.＊26

　（iii） In some of the early treaties, a term was provided that allowed members of the First Nations to reserve a specific tract of land for their exclusive use. By 1850, it was understood that all treaties would include such reserve lands.＊27

　It i s sa id that the under ly ing mot ive for the surrender of land in the Robinson Treaties was the mining interests.＊28 While fur trade was the dominant interest in the region, by the early 19th century, it became known that the regions around the Great Lakes had mineral deposits such as copper. The mining lobby influenced the government policy regarding the treatment of land, and the Robinson Treaties became the harbinger of the Numbered Treaties in the west.

Western Expansion and Numbered Treaties　Canada became a Dominion in 1867, and although it was still a British colony, it attained self-governance with its own elected House of Commons and the appointed Senate. Between 1871 and 1821, Canada concluded the Numbered Treat ies . The e leven Numbered Treaties cover a large tract of land in Northern Ontario；all of the western provinces of Manitoba, Saskatchewan, and Alberta； parts of Yukon Territory, Northwest Territory and British Columbia. In these treaties, the First Nations gave up land, in exchange for annuity payments, ammunition, clothing, reserve land, farming equipment and animals, and the right to hunt and fish.　As will be discussed in Part 3, the Indigenous peoples under the treaties have treaty rights that stem from their respective signed treaties. The provinces of Manitoba, Saskatchewan, and Alberta are all fully covered by the Numbered Treaties. On the other hand, most of Brit ish Columbia did not fal l under any Numbered Treaties, and many First Nations did not surrender their land. For this reason, unlike the three western provinces, British Columbia has unresolved

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land title issues.

Modern Treaties　Since 1975, Canada concluded the modern treaties. These modern treaties are classified into either Comprehensive Land Claims Agreements, where there is no historical treaty or other measures that address the issues of aboriginal rights and title, and Self-Governing Agreements, which enable Indigenous people to attain a degree of autonomy. In 1975, the first modern treaty James Bay and Northern Quebec Agreement was signed. To date, Canada has signed 15 comprehensive claims with Indigenous peoples of Canada.＊29 There are numerous agreements currently under negotiation. The existence of the numerous outstanding negotiations in process reflects the

complexity and the lengthy duration of settl ing Indigenous rights and titles.　Unlike the brief historical treaties, each modern treaty is detailed and addresses a broad range of issues. For instance, the Nisga’a Final Agreement signed in 1999 is over 250 pages long with numerous amendments and side agreements. The Nisga’a Final Agreement addresses wide-ranging issues including territorial extent, land title, forest resources, access, roads and rights of way, fishery, wildlife and migratory birds, environmental assessment and protection, self-governance, administration of justice, and taxation.＊30

Treaty Land Entitlement （TLE）　In areas where First Nations surrendered land under the Numbered Treaties, reserves were created.

図1 Map of Pre-1975 Treaties

Source：Indigenous and Northern Affairs Canada website： http://www.aadnc-aandc.gc.ca/


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However, some promises of a reserve were not fulfilled. Under Treaty Land Entitlement （TLE）, Indigenous g roups can f i l e a TLE c l a im w i th t he f ede ra l government. Once such filing is complete, land or money can be awarded to Indigenous groups that did not see their promise fulfilled. Indigenous groups can then buy land from federal, provincial, territorial, or private land, and annex it to their reserve. Currently, about 90% of the TLE transactions take place in Manitoba and Saskachewan.＊31

Summary

　As this survey shows, the history of Canada’s relationship with Indigenous peoples is dynamic. The historical struggle that existed even prior to the establishment of the Dominion of Canada between the settlers and Indigenous peoples, in many ways, mirrors some of the current conflicts found between Canada and Indigenous peoples. Understanding the historical progression of the relationship between Canada and the Indigenous peoples is vital to understand the approach Canada may take moving forward.

図2 Map of Modern Treaties and Self-Government Agreements

Source：Indigenous and Northern Affairs Canada website：http://www.aadnc-aandc.gc.ca/.

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　Canada’s future is intertwined with Canada’s Indigenous peoples. However, the significance of the relationship between the Canadian government and Indigenous peoples to inform Canadian policy and program development is not static； the relationship has and will continue to fluctuate depending on what political party is in power in Canada at a given time. To understand how Canada’s relat ionship with Indigenous peoples may impact industry in Canada, it is essential to understand Canada’s recent and current political climate surrounding the topic.

Harper（2006-2015）： A Tense Legacy

　The Right Honourable Stephen Harper served as Canada’s Prime Minister from February 6, 2006 to November 4, 2015. Two years after coming into power, Prime Minister Harper made a formal apology on behalf of the Government of Canada to all Indigenous people who were victims of Canadian Indian residential schools.＊ 32 Generally, Harper’s apology was well-received by Indigenous and non-Indigenous Canadians who thought that it was an important step taken on behalf of the federal government.＊33 However, while Indigenous individuals were grateful for the gesture that the apology symbolized, they urged that the government needed to substantiate the apology with policies and programs.＊34

　Critics of the Harper government argue that in the years following the apology, the federal government f a i l e d t o t a k e t h e n e c e s s a r y s t e p s t o w a r d s reconciliation and healing for Canadian Indigenous people through various policy and program decisions. For instance, in 2007, the Harper government voted against the United Nations Declaration on the Rights of Indigenous Peoples （UNDRIP） at the United Nations General Assembly. In 2010, the Harper government reversed their position and decided to formally endorse UNDRIP； however, the endorsement was made with much hesitation.＊ 35 The Harper government feared that the adoption of UNDRIP would provide Indigenous groups with the power to veto government decisions, which they claimed would run contrary to Canada’s

constitutional and parliamentary framework.＊ 36 Ultimately, crit ics argue that the government’s endorsement was insu f f i c i ent , s ince a f ter the endorsement the government d id not take any substantial steps to integrate the document within Canada.＊37 　Critics also point to the Harper government’s failure to adequately provide funding for First Nation programs to show that the government fa i l ed regarding Indigenous reconciliation. An example of the government’s failure can be observed through the government’s funding of First Nations’ education. In their 2012 budget, the Harper government set aside 275 million Canadian dollars over three years for educational infrastructure development and literacy programming for First Nations.＊38 The Assembly of First Nations, a national organization that advocates on behalf of First Nations, criticized this funding amount as inadequate.＊39 In response, the government increased the amount of funding the next fiscal year to 1.9 billion Canadian dollars over seven years, but also introduced Bill C-33, First Nations Control of the First Nations Education Act.＊40 Once again, critics contested that the government failed in their supposed solution, since the bill showed that the government was unwilling to relinquish control over the education funding by maintaining a strict accountability regime between the First Nations who received funding and the bureaucrats in the Department of Indigenous and Northern Affairs Canada.＊41

　This example of the government’s perceived failure in regards to First Nations educational funding is somewhat informative of the way many critics view Harper government’s overall approach to funding First Nations programs and policies. Throughout their two terms in power, the Harper government eliminated several Indigenous programs and cut funding to various other initiatives.＊ 42 Through each of these decisions, the Harper government increased the tension between Indigenous people in Canada and the federal government. However, as will be discussed below, the relationship between the federal government and

Part 2. Political Context


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Canadian First Nations has recently improved since Prime Minister Justin Trudeau’s new government replaced Harper’s government in 2015. Truth and Reconciliation

　Before moving on to discuss Prime Minister Justin Trudeau’s current and recent actions as it pertains to Canadian First Nations, a word must be said about Canada’s Truth and Reconciliation Commission（TRC）. The TRC was crea ted in 2007 as a par t o f the settlement from a class action lawsuit brought against the Government of Canada by those affected by Indian Residential Schools. Indian Residential Schools were a part of an institutionalized cultural assimilation program that forced Indigenous children to attend boarding schools away from their parents. The TRC’s role was to “facilitate reconciliation among former students, their families, their communities and all Canadians.”＊ 43 The Government of Canada provided approximately 72 million Canadian dollars to the TRC from 2007 to 2015. In addition to hosting seven events across Canada to educate the public on the impact of residential schools, the TRC also travelled across Canada to collect testimonies from over 6500 Indian Residential School witnesses.＊ 44 In 2015, the TRC released a final report titled“94 Calls to Action”, which provides recommendations for how Canada can facilitate reconciliation with First Nations.＊45 The report not only provides specific suggestions to Canadian municipal, provincial and federal governments, but also provides proposals for other industries within Canada – from the business sector, to the media, and to universities.　The TRC’s “94 Calls to Action” is one of the organi-zation’s major accomplishments. Since its release, the report has been recognized throughout Canada’s public and private sectors. For example, universities across Canada have taken steps to show that they are committed to the goal of supporting reconciliation with Indigenous persons within Canada. In October 2016, the University of Western Ontario in London, Ontario, launched an Indigenous Strategic Plan.＊46 A year later, in 2017, other universities such as the University of Victoria and the University of Calgary also released

indigenous strategies and plans.＊ 47 In addition, the University of Victoria recently announced the creation of Canada’s first joint degree law program in Common Law（JD）and Indigenous Legal Orders （JID）.＊48

　The business community across Canada has also taken up the TRC’s “94 Calls to Action”. In May 2017, the Canadian Chamber of Commerce, Canada’s largest and most influential business association, released a report titled“Coming Together, Making Progress： Business’s Role in Reconciliation with Indigenous Peoples.” The report was sponsored by businesses in various industries in Canada, from the financial sector to the natural resources sector.＊ 49 After surveying businesses across Canada, the report suggests that Canadian businesses recognize that they have a role to play in Indigenous reconciliation.＊ 50 The businesses wou ld l i ke to f o l l ow the government ’ s l ead in reconciliation and develop education tools so that all Canadians may learn more about why reconciliation is necessary in Canada. Moreover, the report suggests that providing education tools will enable smaller businesses, who are unable to fund robust Indigenous training programs for their employees, to develop programs that will educate their workers on how they may contribute to reconciliation.＊51 Finally, businesses hope to see more government support for Indigenous entrepreneurs in Canada and vow to takes steps to become “indigenous community champions” by partnering with Indigenous businesses and being proactive in their hiring practices to employ more Indigenous individuals.＊52

　The TRC’s purpose of encouraging reconciliation remained constant from its inception in 2007 until its completion in 2015, and, as explained above, has recently been endorsed by the private sector. The federal government’s appreciation of the need for reconciliation proposed by the TRC, however, has f luctuated based on whether it was Harper’s or Trudeau’s government in power. As will be explored below, in opposition to Harper’s government, Trudeau’s government can be observed as attempting to align their mandate as much as possible with the goal of reconciliation.

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Trudeau（2015-Current）：Steps Towards

Reconciliation

　It was in light of this perceived failure by the Harper government regarding Canada’s First Nations that Canada’s current Prime Minister, the Right Honourable Justin Trudeau, began his political campaign in 2015. During his campaign, Trudeau portrayed himself as an advocate for First Nations. As leader of the Liberal Party of Canada, Trudeau campaigned on bringing

“Real Change” to Canada, which included several election promises to improve Canada’s nation-to-nation relationship with First Nations, to conduct consultations with First Nations on environmental assessments for major projects, to increase investments in First Nations’ communities and education, and to launch an inquiry into missing and murdered Indigenous women and girls.＊53 These campaign promises resonated with First Nations across Canada. Political poll analyst, Éric Grenier, suggests that the voter turnout for Indigenous Canadians increased significantly in the 2015 election from the previous election in 2011.＊ 54 Moreover, he holds that the data suggests Trudeau’s political party benefited from the turnout.＊ 55 While the poll data should be taken lightly, one thing is certain： Trudeau’s campaign for “Real Change” resonated with Canadians and in 2015 the Liberal Party of Canada led by Trudeau won a majority government.　Within weeks of being appointed, Trudeau began taking steps to fulfill his promises to First Nations in Canada. In his mandate letters to his newly appointed Cabinet Ministers, Trudeau reminded all his appointed Ministers of his desire to improve relations with First Nations in Canada. In each letter , he wrote the fo l lowing statement： “No relat ionship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognit ion of r ights , respect , cooperation, and partnership.”＊56 In line with this message, he assigned specific tasks to each minister that were consistent with his overall election promise of reconciliation. For example, in his mandate letters to Canada’s Minister of Natural Resources, Minister of Environment and Climate Change, and Minister of Fisheries and Oceans, he specifically tasked the Ministers to work with one

ano ther to improve the f edera l government ’ s environmental assessment model for major projects and to modernize the National Energy Board （NEB） to include Indigenous participation and knowledge.＊57

　On February 8, 2018, the Ministers unveiled their plan through Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act.＊ 58 The proposed bil l highlights the current government’s commitment to increased First Nations participation and consideration in Canada’s natural resources and environmental sectors. In the bill, the government proposes replacing the current Canadian Environmental Assessment Act with the Impact Assessment Act. Section 22 of the proposed Impact As s e s smen t Ac t l i s t s the f ac tors tha t must be considered by the Impact Assessment Agency and the Minister of the Environment under the new impact assessment approach for major resource projects. Several of the factors cited in the bill directly relate to Indigenous Peoples in Canada. For instance, the new approach must consider：　（a） the impact that the designated project may have

on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982；

　（b） traditional knowledge of the Indigenous peoples o f Canada p r ov i d ed w i t h r e spe c t t o t h e designated project；

　（c） considerations related to Indigenous cultures raised with respect to the designated project；

　（d） any assessment of the effects of the designated project that is conducted by or on behalf of an Indigenous governing body and that is provided with respect to the designated project.＊59

　Overall, the Impact Assessment Act outlines the factors that the federal government will consider when assessing projects . The new act shows that the Trudeau government is concerned with not only conducting an environmental impact assessment, but rather a holistic impact assessment that considers multiple factors such as the potential environmental, social, economical, and health impacts that a project may have.＊60


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　In addition, to considering the above factors, the government also proposes that an impact assessment expert committee should be established. The legislation suggests that this committee must have at least one Indigenous person represented.＊61 Moreover, the Act envisions that a separate advisory committee be established to advise the Impact Assessment Agency on the impacts and concerns of Indigenous peoples in Canada as it pertains to all major projects in review.＊62 Overall, Bill C-69 supports the notion that Trudeau and his Ministers are committed to being sensitive to the concerns of Indigenous peoples and communities in Canada, including their concerns as it pertains to the approval of major resource projects in Canada.　The current government’s commitment to First Nations in Canada may be also observed through the government’s fiscal budgets over the past three years. In 2016, the Trudeau government released its first fiscal budget.＊63 A review of the budget highlights that the Trudeau government intended to fulfill its election promise of increasing support for Indigenous Peoples in Canada. The Assembly of First Nations in Canada applauded the 2016 budget, exclaiming that in the budget “[a]n historic $8.4 bil l ion over 5 years in investments have been made on Indigenous issues.... [The Budget] provides a specific promise to engage in a new long-term fiscal relationship.”＊64 The Assembly of First Nations in Canada maintained enthusiasm through the release of the federal government’s fiscal budgets in 2017 and 2018.＊65 Upon the release of the 2018 budget, the Assembly of First Nations National Chief, Perry Bellegarde, exclaimed that the newest budget marked “the third year of continued, sustained investment in First Nations.”＊66 Overall, the reactions f r om s t akeho lder s sugges t s tha t the cur ren t g ov e rnmen t h a s a d equa t e l y d i s p l a y ed t h e i r commitment to funding indigenous pol icies and programs across Canada.　Finally, the Trudeau government has taken actions on the international stage to show their commitment to First Nations. On September 21, 2017, Prime Minister Trudeau addressed the United Nations General Assembly.＊ 67 In his speech, he spent a significant amount of time addressing Canada’s previous failures towards Indigenous peoples in Canada and outlining

what his current government is doing to fix Canada’s past wrongs and encourage reconciliation. For example, as was previously noted, in opposition to the Harper government, Trudeau campaigned on the promise to implement UNDRIP into Canadian law.＊68 The Harper government endorsed the document, but did not fully implement it into Canadian jurisprudence. In November 2015, Canada’s newly appointed Indigenous and Northern Affairs Minister, the Honourable Carolyn Bennett, reaffirmed the current government’s promise to take steps to implement the international document.＊69 More recently, in November 2017, Canada’s Justice Minister, the Honourable Jody Wilson-Raybould, announced that the government would back a private member’s bill from the New Democratic Party of Canada, Bill 262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.＊70 Bill 262 proposes that the principles set out in UNDRIP should be enshrined into the laws in Canada.＊ 71 Although the bill has only undergone a first reading in the parliament at the time of waiting this paper, it is being endorsed by the current majority government and retains the support of the NDP party. In fact, UNDRIP’s implementation was an election promise made by the NDP party in 2015.＊ 72 Overall , the Trudeau government has taken steps show the international community that Canada is serious in making reconciliation with Indigenous Canadians a priority.

Summary

　It is necessary to end by noting that, while the current government is praised for the approach they are taking in regards to reconciliation with Indigenous Canadians, they have not been immune to criticism. Some individuals stress that the Trudeau government has been slow in implementing the changes they promised they would make.＊ 73 Other individuals critique that the government has steered clear of having meaningful discussions about how reconciliation with Indigenous Canadians includes making changes to the way in which land and resources are regulated within Canada.＊ 74 For example, Indigenous leaders have expressed concerns that the Trudeau government

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Introduction

　In the previous sections, we outlined the historical context as well as the recent political dynamic in Canada regarding Indigenous peoples. In the recent years, federal and provincial governments, universities, and businesses have sought to address the need for reconciliation with Canada’s Indigenous peoples. In this section, we will elaborate the role of the judiciary in this process of reconciliation throughout the past several decades. In 1985, Justice MacDonald, former British Columbia Supreme Court judge, remarked “We cannot recount with much pride the treatment accorded to the native people of this country.”＊78 More recently, in 2015, the former Chief Justice of the Supreme Court of Canada, the Right Honourable Beverley McLachlin, spoke at the Global Centre for Pluralism where she made remarks that mirrored Justice MacDonald’s sentiments. In the lecture, McLachlin discussed how Canada’s relationship with Indigenous peoples is tarnished by a historical “cultural genocide” that must be addressed.＊79 Some criticized her comments as being an example of the prejudice within Canadian courts, which unlike the legislature, are supposed to be unbiased institutions.＊80 While this section will not comment on the appropriateness of McLachlan’s remarks, it is useful to highlight her remarks at the outset of this section to provide some context about the paradigm that the judiciary has adopted in approaching recent cases related to

Indigenous rights. Ultimately, while the courts in Canada have not been immune to criticism, they should recogn ized by the way in wh ich the i r modern judgments have attempted to align with Canada’s current goal to improve reconciliation with Indigenous peoples and increase the recognition of Indigenous rights.　The inescapable truth is that all businesses share a profound nexus with the law through meeting legal obligations, regulatory compliance, administrative approvals, respecting jurisdictional authority, or control l ing and l imiting l iabi l ity . No matter the industry, all businesses must conduct themselves in accordance with the law. Aboriginal law represents another, often unforeseen, dimension to the Canadian legal system. In order to properly approach the topic of Aboriginal law it is important that one has a grasp of the historical case law pertaining to Aboriginal and Treaty rights. We will begin this section by laying out the historical legal framework.　The changing social and political landscape in Canada has led to dramatic developments and changes within Canadian jurisprudence over the last several decades. Most significantly, in 1982, Canada’s constitution was amended through the Constitution Act, 1982. The amendments included s. 35, which speaks directly to Aboriginal and Treaty rights. The provisions of s. 35 are as follows：＊81

Part 3. Case Law

approved the construction of the Kinder Morgan oil p ipel ine expansion project without adequate ly considering the potential issues raised by Indigenous groups.＊ 75 Finally, the Trudeau government’s recent decision not to appoint a First Nation, Inuit or Métis judge to the Supreme Court of Canada to replace retiring Chief Justice, the Right Honourable Beverley McLach l i n , has a l s o been scru t in i zed .＊ 76 The Indigenous Bar Association lamented that the Trudeau

government missed a significant opportunity for reconciliation by not appointing an indigenous person to the highest court in Canada.＊77

　In summary, while the current government has taken steps to show they are serious about improving Canada’s relations with its First Nations, Inuit and Métis, they have not escaped criticism and have at t imes al lowed their reconci l iat ion agenda to be overruled by other policy considerations.


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RIGHTS OF THE ABORIGINAL PEOPLES OF CANADARecognition of existing aboriginal and treaty rights35.（1）The existing aboriginal and treaty rights of the abor ig ina l peop les o f Canada are hereby recognized and affirmed.Definition of “aboriginal peoples of Canada”

（2）In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.Land claims agreements

（3）For greater certainty, in subsection （1）“treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.Aboriginal and treaty rights are guaranteed equally to both sexes

（4）Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection（1）are guaranteed equally to male and female persons.

　Pr ior to s . 35 o f the Cons t i tu t i on Act , 1982 , Aboriginal rights were first recognized under common law as early as 1973 in the seminal case Calder v British Columbia （Attorney General）.＊82 In Calder, the Supreme Court of Canada recognized the validity of underlying Aboriginal title. Since common law is driven by precedent and can be overridden by express legislation, the Constitution Act’s language of “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” circumvents the vulnerability of the courts original holding in Calder.＊83 This statement in the Constitution Act formally recognized the validity of Aboriginal and Treaty rights and provided Indigenous peoples with constitutional protection from any unjustified in-fringement by the federal or provincial governments.＊84 In addition, s. 52（1） of the Constitution Act states that

“[the] Constitution of Canada is the supreme law of Canada”＊ 85 and that any inconsistency between Canadian law and a constitutional provision, s. 35 included, is thus rendered of no force and effect to the ex t en t o f i t s i n c on s i s t ency .＊ 86 As a r e su l t , a cons t i tu t i ona l l y en t renched r i gh t i s one tha t governments cannot easily undermine.

　Overa l l , t h e imp l emen t a t i on o f s . 3 5 o f t h e Constitution Act, 1982 was extremely important for the development of Aboriginal and Treaty right jurisprudence in Canada. Since s. 35’s implementation, the Supreme Court of Canada has rendered many decisions about the interpretation and scope of s. 35. As the highest court in Canada, the Supreme Court of Canada’s foundational Aboriginal law decisions have bound all jurisdictions within Canada. In the sections below, we will provide a basic overview of many seminal Canadian cases related to Canada’s Indigenous peoples, most of which have been decided by the Supreme Court of Canada.

Identification of Rights

　From a business perspective, it is paramount to understand the importance of properly recognizing Aboriginal and Treaty rights. The existence and nature o f Abor ig ina l and Treaty r ights d ictates lega l obligations which will affect business operations across Canada. By properly identifying Aboriginal and Treaty rights, businesses can avoid costly disputes and negative public attention. Moreover, businesses can ensure they are sufficiently meeting their legal responsibilities, contributing positively to Canada’s goals pertaining to reconciliation, and helping to be a positive influence on the communities with which they work.　Where any possible Aboriginal and Treaty right disputes may exist, the potential defendant must begin by identifying the relevant Aboriginal or Treaty right that needs to be considered. The burden of proof for advancing a claim for or under an Aboriginal or Treaty right is borne by the party making the claim （the claimant） on a balance of probabilities.＊87

Evidential Caveat　A principle that is reiterated throughout the case law on Aboriginal and Treaty rights is that the courts must operate with a “consciousness of the special nature of aboriginal claims.”＊88 This principle requires that the courts provide a degree of flexibility when accepting evidence from Indigenous peoples who lack written historical records. The courts should not undervalue presented traditional evidence because it does not

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conform to prevailing common law standards.＊ 89 In other words, Aboriginal law claims will receive exceptions＊ 90 to the evidential requirements under common law and instead receive an approach properly reflective of their sui generis nature, which facilitates the necessary inclusion of Indigenous perspectives.＊91 Unlike other areas of Canadian law, Aboriginal law requires a fusion of common law with Indigenous law.

Identifying an Aboriginal Right　A common point o f confus ion perta ins to the difference between an Aboriginal and a Treaty right. It can be difficult to distinguish the two rights by their qualitative characteristics. For example, a specific hunting practice can be either an Aboriginal right or a Treaty right depending on the context. However, there are distinct differences between the two, which largely stem from where the rights are sourced.　The Government of Canada describes Aboriginal rights as the practices, customs, or traditions that are unique to specific First Nation groups which were part of their cultural heritage prior to European contact.＊92 Accord ing to Van der Pee t , a case that wi l l be described in more detail later, Aboriginal rights pre-dated both the Constitution Act’s affirmation of existing r i gh t s i n 1982 and European con tac t .＊ 93 Th i s description recognizes that “aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.”＊ 94 Aboriginal rights include a diverse array of cultural practices that may encompass specific forms of hunting, cultural ceremonies, dietary practices, medicinal techniques, governance or even religious traditions. This is not an exhaustive list, but simply a demonstration of the diversity of practices that may be considered under Aboriginal rights. All First Nations are dist inct cultural groups and as a result the composition of their relevant Aboriginal rights are themselves also distinct. In addition, Aboriginal rights may be l imi ted to a F irs t Nat ions ’“ancestors ’longstanding use and occupancy of the land”＊ 95 through Aboriginal title. However, it should be noted that Aboriginal title （a form of Aboriginal rights） is not mandatory for finding or sourcing other Aboriginal rights.＊96

　A leading case on Aboriginal rights is Van der Peet. In this case, the Supreme Court of Canada outlines how to identify a valid Aboriginal right and categorize the scope of the right. Understanding the scope of the right is essential , s ince unlike Treaty rights , with an Aboriginal right, there is no document or formal agreement to defer to. As eluded to earlier, Aboriginal rights can be best summarized as “practices, traditions and customs integral to the distinctive cultures of aboriginal peoples.”＊ 97 They should not, however, be mistakenly categorized as a personal right, but instead as a collective community right.＊98 To decide whether a claimant has a valid Aboriginal right claim, the Supreme Court of Canada held in Van der Peet that the following principles should be examined. 　Firstly, a claimant must identify the scope of the Aboriginal right at dispute. This requires a characteri-zation of the nature of the right.＊99 For example, the right to hunt may be limited to one specific form of hunting, to hunt only a particular animal, or to hunt only to the extent required to fulf i l l a rel igious obligation. While Van der Peet cautioned applying overly specific characterization and reinforced the concept of Aboriginal rights undergoing permissive modernizat ion , th is requirement should not be underestimated.＊100 Defining the scope appropriately is critical to the success of any claim. Recent case law has demonstrated that the courts are willing to strike down actions where overly broad interpretations are used to enlarge what may be a valid underlining claim.＊101 　Secondly, there needs to be some form of continuity of the practice itself, and this continuity must pre-date European contact.＊102 This requires simply identifying a practice as pre-dating European contact and showing how it continues today. The demonstration of an unbroken chain of continuing performance of such a practice is not required.＊103 Moreover, the practice is allowed to evolve over time.＊104 For example, a hunting practice that traditionally involved oar-propelled canoes will not be nullified because First Nations now use motor boats.　Overall, Aboriginal rights are not frozen in time； the Supreme Court of Canada recognizes that change may have occurred due to European contact.＊ 105 However , a pract ice that d id not exist pr ior to


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European contact, but formed in response to it, will not be protected as an Aboriginal right.＊106 For example, the integration of European technology into hunting practices is acceptable, so long as same act existed prior to European contact. An example of this would be hunting a dear with a rifle instead of a traditional bow. However, where the hunting activity developed in response to European contact, the practice is not a part of the original culture and as a result will not be granted protection under s. 35 of the Constitution Act, 1982. For instance, if the practice of hunting a certain type of animal was made possible because of modern technologies, which have more capabilities than traditional devices, then this hunting practice may not be protected under an Aboriginal right to hunt.　Thirdly, the practice must be of integral or central significance to a society.＊ 107 This can be a difficult category to conceptualize. The Supreme Court of Canada provides an apt method of approaching this requirement：it must be demonstrated that the disputed practice“made the society what it was.”＊108 Another method of examining this concept is asking whether the culture would be “fundamentally altered or other than what it is” without that practice.＊ 109 Thus, for example, eating to survive would not really meet the requirements, as it is something shared by all peoples. However, eating a particular item for a particular religious purpose may be validly recognized as being a central cultural practice.　Fourthly, the courts require that the practice in question must not merely be incidental to another disputed activity.＊ 110 The Supreme Court of Canada seeks to avoid a form of “piggybacking on integral practices, customs and traditions.”＊111 This reinforces the importance of properly defining the scope of the right. For example, if there is an established Aboriginal right involving a practice relating traditional medicine, there may be a valid claim regarding a First Nation member’s right to receive traditional medical services in the traditional language. This may be deemed incidental to the larger right. Nevertheless, the courts and third parties should be cautious not to presume what is significant without properly evaluating all the evidence for the claim.　Fifth, the Supreme Court of Canada has held that for

a practice to be deemed an Aboriginal right, it needs to be a distinctive practice.＊ 112 The Supreme Court of Canada does not require the practice to be culturally distinct.＊ 113 Rather, to be a distinct practice, the practice must be unique to the particular Aboriginal group bringing the claim. In other words, the practice needs to be undertaken in a manner that “makes the culture what it is.”＊114 Through this requirement, the Supreme Court of Canada seeks to limit the protection to only those practices that are culturally significant or a distinguishing feature of the First Nation claimant.＊115

　Lastly, given the unique position of each First Nation group, the Supreme Court of Canada stated that the recognition of an Aboriginal right will be undertaken on a case by case basis.＊116 If one First Nation has a specific recognized Aboriginal right, it does not necessarily entitle another First Nation to the same right. Rather, distinctive groups must provide specific evidence to support their own respective claims.　Overall, as noted earlier, being able to identify Aboriginal rights is important. Even if there is no apparent Treaty right that needs to be considered, there may still be a potential Aboriginal right claim. The process to establish an Aboriginal right may bring a significant financial cost to a claimant or a First Nation community. It may also require other parties, such as a business who wants to conduct themselves in a way tha t may i n f r i nge on an unde te rm ined Aboriginal r ight , to expend their own time and resources in the litigation dedicated to determining if a right should be recognized or not. In reality, the establishment of an Aboriginal right is often only sought when conflict arises. Thus, being able to properly evaluate whether a right exists before an issue arises is of critical importance for any party who may deal with First Nation communities.

Identifying Métis Right　S. 35（2） of the Constitution Act, 1982 defines Indigenous peoples of Canada as “Indian, Inuit and Métis”.＊ 117 As a result, Métis peoples are conferred the same rights under the constitution as all other Indigenous peoples. 　Métis populations represent an exception to the rule identified in Van der Peet. The focus in Van der Peet is

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largely about pre-European contact practices and customs. However, as was explained in Part 1, Métis is an ethnic group with a distinct culture, comprised of people with both Indigenous and European ancestry. Not everyone who has mixed ancestry will necessarily be classified as Métis；＊118 rather, only those who are members of a group with a distinct culture will qualify.＊119

　Given the language used in Van der Peet, minor changes and additions to the above test must be made when a Métis person makes an Aboriginal right claim. The first necessary alteration is to the requirement of the concept of continuity. Because Métis people are a product of European contact, it is impossible to require them to provide evidence of pre-contact practices to validate their Aboriginal right claims.＊120 Instead, the Van der Peet test is modified for Métis people to show that the practice continues from European contact until today.＊121

　The next three additions to the Van der Peet test are used to determine a Métis person’s identity. First, a claimant must self-identify as a Métis.＊122 The self-identification must not be made after the dispute was raised.＊ 123 Second, the claimant must have ancestral links to a historic and recognizable Métis community.＊ 124 The Supreme Court of Canada notes that this does not require a scientific blood quantum. Rather, a recognizable family link or “proof that the claimant’s ancestors belonged to the historic Métis community by birth, adoption, or other means.”will suffice.＊ 125 Finally, the claimant must prove that the claimant is a recognized member of a current existing Métis community.＊126 The Supreme Court of Canada does not require the claimant to provide proof of an official communal approval or a formal membership card. Instead, the claimant only needs to show that the claimant has a “past and ongoing participation in a shared culture.”＊ 127 Overall, the Supreme Court of Canada seeks to ensure that only those who participate in the‘common culture’ or are an active member in the society are able to make a claim for an Aboriginal right.　With these subtle alterations, the Van der Peet principles laid out fully above can be applied to Métis. Further, the legal analysis for Métis will follow the

same analysis throughout the remainder of the Aboriginal law framework discussed below.

Identifying Aboriginal Title　One of the most influential Canadian cases dealing with Aboriginal law is Delgamuukw, which provides greater clarity to various concepts concerning the rights of Indigenous peoples of Canada.＊128 Calder may have opened the door to the existence of Aboriginal title, but it could still be extinguished by the federal government.＊ 129 While the Constitution Act, 1982 offered protection to Aboriginal title, it remained unclear how one could identify and prove claims. This was particularly troublesome in areas of Canada not covered under the Numbered Treaties, such as British Columbia. Delgamuukw was the first case that offered a framework for identifying and proving Aboriginal title claims.　In Delgamuukw, the Supreme Court of Canada distinguished Aboriginal title from the Anglo-Canadian concept of land ownership , which derives from medieval England, and clarified that Aboriginal title is a subset within the broader category of Aboriginal rights. Aboriginal title is sui generis and should not be treated in the same manner as other proprietary interests.＊130 While Aboriginal title includes a right of exclusive use and occupation of land,＊ 131 it is not an individual right but held communally by members of a particular Indigenous group.＊132 Also, Aboriginal title, unlike other Canadian land titles, does not originate from the Royal Proclamation of 1763, but from the prior occupation of Canada by Indigenous peoples.＊133 Indigenous peoples have Aboriginal title because they lived in Canada before the Europeans settled.　The Supreme Court of Canada has, however, created numerous inherent limitations on Aboriginal title. For instance, the land under Aboriginal title can only be used for purposes that are not irreconcilable with the historical use the land.＊134 In practice, this means the Supreme Court of Canada will not recognize Aboriginal title where the use of the land conflicts or destroys the inherent value of the underlying historical relationship between the community and the land itsel f .＊ 135 Delgamuukw provides an example： if the land was traditionally used as a hunting ground, the land cannot


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be put to use as a strip mine.＊136 The Supreme Court of Canada ruled that “[t]he community cannot put the land to uses which would destroy that value.”＊ 137 Moreover, unlike regular title in Canada, Aboriginal title can only be transferred, sold, or surrendered to the Crown.＊138

　The Supreme Court of Canada also established a three-step test for Aboriginal title：（i） firstly, the Indigenous people claiming Aboriginal title must have occupied the disputed land prior to the establishment of sovereignty；（ii） secondly, the Indigenous people claiming Aboriginal title must demonstrate that they have used the land continuously since before the establishment of the Crown sovereignty in Canada；（iii） finally, the Indigenous people claiming Aboriginal title must demonstrate that they had exclusive occupation over the disputed land.＊ 139 The Indigenous people claiming Aboriginal title must bear the burden of proof of all of the three steps of the test.＊140

　In the first step of the test, the issue is whether the claimant Indigenous group sufficiently occupied the disputed land “at the time at which the Crown asserted sovereignty over the land subject to the title.”＊141 This investigation must be undertaken in a culturally sensitive approach that recognizes both common law and aboriginal perspectives.＊ 142 The test may be satisfied by current physical occupation of the claimant group to some extent； alternatively, the recognition of title by historical prevailing Aboriginal legal systems may also suffice.＊143 The occupation may be proven by archeological evidence such as construct ion of dwellings, historic cultivation of land, or exercising rights pertaining to various ceremonial or resource utilization.＊ 144 The claimant group is not required to live in one specific location and nomadic life styles may be recognized under this test.＊145

　The second step of the test requires that there is continuity of occupation. The test is met when there is evidence supporting “continuity between present and pre-sovereignty occupation.”＊ 146 However, continuity does not require “an unbroken chain”＊ 147 because historic volatility between Indigenous peoples and European settlors may have caused disruptions beyond the control of Indigenous peoples. To demand strict adherence to continuity of occupation would run

contrary to the intention of s. 35 of the Constitution Act, 1982.＊ 148 Here, the Supreme Court of Canada was influenced by Mabo v Queensland （1992）, 107 ALR 1 （HC）, a famous case concerning Australian Aboriginal rights from the High Court of Australia. In Mabo, continuity is established where there is a

“substantial maintenance of the connection” between the Aboriginal group and the disputed land. In a similar fashion, continuity may be demonstrated by proving a

“substantial connection between the people and the land is maintained.”＊149 While this will be easily met if present occupation aligns with historic territory, Indigenous peoples disenfranchised from land over the course of history may still make a claim and win, if their relationship to the land is maintained. 　The third and final step of the test concerns the exclusivity of occupation of the claimant Indigenous people. In this step, it is noteworthy that the notion of property may differ greatly between the Western legal system and the traditional Indigenous legal systems. For instance, the Anglo-Canadian legal system sees exclusivity as sine qua non of property rights, while many Indigenous peoples have a legal conceptualization that endorses co-management through reciprocal interactions or group inclusivity.＊ 150 An Aboriginal concept of exclusivity may allow for overlapping claims of multiple groups to establish “shared exclusivity.”＊151 Furthermore, the claimant Indigenous group must have both “the intention and capacity to retain exclusive control.”＊152 The physical presence on a specific tract of land or the frequent use of land may qualify as a demonstration of the intention and the capacity to control the land exclusively.＊153 For instance, where an Indigenous group requires other Indigenous groups or Europeans to obtain permission to use or pass through a certain area, it is likely that the Canadian judiciary will see this as an element of exclusive control of that area.＊154 If the claims of multiple Indigenous peoples overlap, such claims may be recognized as “shared exclusivity,”provided that adequate evidence can be adduced to prove the underlying intention to preclude third parties.＊155 　If al l three steps of the test are satisf ied , the Aboriginal title is prima facie established. In the case that the claimant Indigenous group fails to meet the

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requirements for an Aboriginal title, the group may still make claims for Aboriginal rights.＊156

Treaty Right　Aside from Aboriginal rights, Indigenous peoples may enjoy specific rights under a treaty. Treaty rights are defined by the Government of Canada as effectively Aboriginal rights that are agreed upon formally through a Treaty.＊ 157 Treaty rights arise from an

“agreement whose nature is sacred”＊158 between the Crown and an Indigenous group, ＊159 and at the core of such a Treaty is an “intention to create obligations.”＊160 　Unlike Aboriginal rights, Treaty rights may also be entirely new rights granted from the agreement itself that do not have pre -ex is t ing roots wi th in the Indigenous society.＊ 161 Treaty rights, however, only apply to signatories of a relevant Treaty＊162 and within the region covered by the Treaty. Treaty rights are not transferrable to commercial entities such as a company, even if it comprised solely of Indigenous people from groups that signed the Treaty.＊163 Similar to Aboriginal rights, Treaty rights belong to the respective community.＊164

　As discussed in Part 1, there are different types of Treaty rights, depending on the nature of concluded agreements. These include Peace and Friendship Treaties in Eastern Canada and the Numbered Treaties in Ontario and Western Canada. In the Numbered Treaties, Indigenous peoples ceded title to land in exchange for benefits and a formal recognition and protection of aboriginal practices. The surrender of land, however, is not a requirement. A valid enforceable Treaty may form without the exchange of real property or the surrender of land.＊165

　Generally, Treaty rights can be identified expressly within a Treaty document, or in some circumstances, terms may be implied in a Treaty.＊ 166 When an agreement is not labeled as a Treaty, the courts are required to “adopt a broad and generous interpretation of what constitutes a treaty”＊167 in order to examine whether such an agreement deserves constitutional protection. The courts consider various factors, such as the continuous exercise of the disputed right since the formation of the agreement, reasons for the Crown to assume the stipulated obligation, the circumstances

surrounding the conclusion of the agreement, any evidence from the negotiation processes, and the subsequent endorsements of the agreement by both parties.＊168

Treaty interpretation principles 　The Honourable Peter Cory of the Supreme Court of Canada remarked, “Treaties may appear to be no more than contracts. Yet they are far more. They are a solemn exchange of promises made by the Crown and various First Nations.”＊ 169 When Treaty rights are invoked, strict reliance on common law principles is simply not sufficient.＊170 To properly accord for the sui generis nature of Aboriginal law, both common law and Indigenous legal perspectives are needed.＊171

　Before interpreting a Treaty, the historical origin of the Treaty must be identified because historic Treaties and modern Treaties should not be treated in the same manner.＊172 Compared to historic Treaties such as the N u m b e r e d T r e a t i e s , “[ t ] h e t e x t o f m o d e r n comprehensive treaties is meticulously negotiated by well-resourced parties”＊173 and the text and language used is mutually understood and detailed.＊174 Further, unlike historic treaties, modern treaties are the result of sophisticated negotiations,＊175 as both parties have competent legal representation.＊176 As a result, there is much less room to debate the interpretation of provisions compared to the ambiguity prevalent in historic Treaties.＊177

　For histor ic Treat ies , such as the Numbered Treaties, cases known as Marshall 1＊178 and Marshall 2＊179 summarize the principles of Treaty interpretation. A l ist of relevant central Treaty interpretation principles, excerpted from Marshall 1, are listed below：＊180

1. Aboriginal treaties constitute a unique type of agreement and a t t rac t spec ia l pr inc ip l es o f interpretation：2. Treaties should be l iberal ly construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories：3. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was


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signed：4. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed：5. In determining the s ignatories’respect ive understanding and intentions, the court must be sensitive to the unique cultural and l inguistic differences between the parties：6. The words of the treaty must be given the sense which they would naturally have held for the parties at the time：7. A technical or contractual interpretation of treaty wording should be avoided：8. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what “is possible on the language” or realistic：9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context.

　These principles are constructed intentionally to protect and favour Indigenous peoples. However, such interpretations do not provide them with unlimited power： “rules of interpretation should not be confused with a vague sense of after-the-fact largesse.”＊181 The courts have also reiterated that “[e]ven a generous interpretation of the document . . . must be realistic and reflect the intention of both parties.”＊182

Extinguishment　One of the primary benefits conferred to Aboriginal and Treaty rights through the Constitutional Act, 1982 is that no level of government can extinguish them.＊183 Prior to the enactments of the Constitution Act, 1982, it was possible for the Crown to extinguish Aboriginal and Treaty rights.＊ 184 Thus, a common rebuttal to a claim for Aboriginal or Treaty rights is that the alleged right was extinguished by the Crown prior to the constitutional updates in 1982. This is a valid argument because s. 35（1）of the Constitution Act, 1982 only recognizes and affirms existing Aboriginal and Treaty rights and does not resurrect rights that

were surrendered or extinguished prior to 1982.＊ 185 Because of this limitation, the Crown may opt to provide evidence that the disputed right does not exist or was extinguished prior to the const itut ional enactments of 1982. The legal burden is borne by the relevant Crown representative alleging that the right does not exist.＊186

　Historically, it was interpreted that （i） the federal government ac t ing in l i eu o f the Crown cou ld extinguish Aboriginal rights and （ii） the provincial legislature never had this power of extinguishment.＊187 However, the assumption underlying this interpretation, which was made from early case law, may no longer be relevant. There exists uncertainty about whether this principle would remain valid in the future disputes. 　In order to negate a claim of Aboriginal rights, the Crown must prove that it displayed explicit and clear intention to extinguish the claimed Aboriginal right. In the words of the courts, the “sovereign’s intention must be clear and plain if it is to extinguish an aboriginal right.”＊188 Since many aspects of society are regulated, the courts distinguish the difference between being regulated over and being purposefully and intentionally extinguished. While the courts do not require language that explicitly refers to the specific Aboriginal right, extinguishment of an Aboriginal right requires substantially more than merely being subject to regulatory legislation.＊189

　Generally, formal extinguishment is seen as more relevant to Aboriginal rights as opposed to Treaty rights. The concept of whether a Treaty right may be extinguished remains largely unresolved and has only been before the Supreme Court of Canada a handful of times. In one instances, in a case known as Simon, the Supreme Court of Canada expressed its reluctance to rule on the topic altogether.＊190 Rather, the Supreme Court of Canada commented that if extinguishment of Treaty rights were possible, it would be “appropriate to demand strict proof of the fact of extinguishment.”＊191 In a more recent case Sioui, the Supreme Court of Canada concluded that “[t]he very definition of a treaty thus makes it impossible to avoid the conclusion that a treaty cannot be extinguished without the consent of the Indians concerned.”＊ 192 A Treaty involves two parties, and the case law suggests that unilateral

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extinguishment of a Treaty right requires some form of consent from the Indigenous peoples who are signatories to the Treaty.　While outright extinguishment is rare, some argue that Aboriginal and Treaty rights are gradually eroding, a piece-meal process often termed as “death by a thousand cuts.”＊193 While formal extinguishment may be debated within academic circles, in reality, Aboriginal and Treaty rights may be infringed to the point where there is no substantive remainder left to be exercised by members of the Indigenous community. Although each individual intrusion may not warrant an infringement, the summation of such individual infringements may amount to a significant diminution of the Aboriginal and Treaty right.

Infringement

　If an Aboriginal or Treaty right is not expressly extinguished prior to 1982, the next question to ask is whether the disputed governmental action or legislation infringes upon the right. The claimant Indigenous group must establish that there is an infringement on a balance of probabilities.＊194

Test for identifying an Aboriginal right infringement 　In Sparrow, the Supreme Court of Canada provides a framework for an infringement analysis, which is applicable to both Treaty rights＊ 195 and Aboriginal title claims.＊ 196 The Sparrow infringement test is intentionally construed broadly to give courts a degree of flexibility in identifying an infringement. The courts will recognize an infringement of Aboriginal rights where there are （i） imposed limitations that are unreasonable, （ii） undue hardship that affect Indigenous peoples, and （iii） denial of Indigenous peoples to exercise their rights in their preferred means.＊ 197 Gladstone is a case that defined infringements as “any meaningful diminution of the appellants’ rights.”＊198 In Tsilhqot’in, the Supreme Court of Canada held that for a finding of an infringement, “[a]ll three factors must be considered.”＊199 　While an infringement may derive from either （i） the purpose or （ii） the effects of government action or legislation,＊ 200 not every interference amounts to an infringement. An infringement is a “meaningful

diminution” of a right,＊ 201 and captures only those interferences that are not insignificant.＊202

　The next question concerns the threshold for such an infringement. The case law has revealed the under some circumstances that licensing,＊203 access fees,＊204 or caps on subsistence resource utilization＊205 may not constitute a prima facie infringement of Aboriginal rights.＊ 206 A mere inconvenience is not sufficient to pose unreasonable or unjustifiable hardship, and there needs to some effect material harming the right itself.

Infringement and Jurisdiction　One of the most contentious areas of debate within the law concerning Indigenous Canadians has been the power to infringe on Aboriginal and Treaty rights. In s. 91 and s. 92 of the British North America Act, also known as the Constitution Act, 1867, the respective power of the federal government and the provinces is prescribed.＊ 207 Traditionally, it was understood that on ly the federa l government cou ld in fr inge on Aboriginal and Treaty rights.＊208

　This division of power stems from federalism in Canada. Canada has two levels of government, and the s. 91（24）of the British North America Act allocates jurisdiction over “Indians, and Lands reserved for the Indians” to the federal government.＊ 209 Canada has historically divided different powers to either the federal or the provincial governments, and while the strict division ─ the so-called “water-tight departments”─ seems to be slowly disappearing, the doctrine of interjurisdiction immunity has largely remained active i n Canada t h r oughou t t h e l a s t c e n t u ry . The interjurisdictional immunity doctrine gives certain federa l jur isd ict ions immense protect ion from provincial intrusion. Any provincial legislation found to impair the ‘core’ operations or ‘essential undertakings’ of the federal government is rendered of no force or effect.＊ 210 Not only does s. 91（24） provide federal government express jurisdiction over Indigenous Canadians, it also protects both Aboriginal and Treaty r ights from any prov inc ia l intrus ion . Further , prominent case law such as Delgamuukw supported these conclusions by reiterating that “aboriginal rights are part of the core of Indianness at the heart of s. 91

（24）.”＊211


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　However, in two recent landmark cases, Tsilhqot’in＊212 and Grassy Narrows,＊213 the Supreme Court of Canada seems to have removed Aboriginal rights＊214 and Treaty rights＊ 215 from the “core” of federal interjurisdictional immunity protection.＊216 In Tsilhqot’in, it concluded that “the proposition that provincial governments are categorically barred from regulating the exercise of Aboriginal rights, it should no longer be followed.”＊ 217 It further commented that “provincial regulation of general application will apply to exercises of Aboriginal rights, including Aboriginal title.”＊218 The Supreme Court of Canada took away Aboriginal and Treaty rights’ protection from provincial interference. 　The Supreme Court of Canada also seems to suggest that the infringement and justification frameworks supplied in Sparrow and Delgamuukw are sufficient to restrict provincial intrusions, without any need for protection based on the previous interjurisdictional immunity doctr ine .＊ 219 In Grassy Narrows , the judgment in relation interjurisdictional immunity’s protection over Treaty rights was remarkably concise. The Supreme Court held that “[t]he doctrine of interjurisdictional immunity does not preclude the Province from justifiably infringing treaty rights,” and referred to the decision in Tsilhqot’in as providing the full answer.＊220 　Where there may have been room in the decision in Tsilhqot’in to distinguish between Aboriginal rights and Treaty r ights , Grassy Narrows appears to succinctly limit the possibility of the distinction. Tsilhqot’in made the intention of the Supreme Court of Canada sufficiently clear： Aboriginal and Treaty rights are no longer to receive a degree of protection from the provincial legislature. The interpretation and the potential ramification of these two cases are still hotly debated within the legal community. Yet Grassy Narrows clarifies what constitutes the Crown. Since h istor ic Treat ies were conc luded between the Indigenous peoples and the Crown, Grassy Narrows clarifies that the Crown includes both the federal and provincial governments, and the Crown’s obligations may be carried out by either of them. 　To summarize this section, the current case law sugges ts tha t bo th the f edera l and prov inc ia l governments have the capacity to infringe Aboriginal

rights＊221 and Treaty rights,＊222 on the condition that the action of each level of government is in accordance with the division of power stipulated in s. 91 and s. 92 of the British North America Act.＊223

Justification of an infringement

　Finally, if a valid infringement is recognized, then the burden of proof moves to the defendant, the Crown.＊224 The Crown must justify its infringement where an infringement exists.＊225 If the Crown fails to justify the infringement, then the infringing conduct will be held to no force or effect per s. 52 of the Constitution Act, 1982.＊226

Duty to Consult

　According to Tsilhqot’in, the duty to consult acts as a pre-requisite of the justification process. In the context o f Abor ig ina l t i t l e , no jus t i f i ca t i on o f infringement is possible without meeting the duty to consult first.＊227 Further, the duty to consult will apply to other Aboriginal rights that are both asserted or established, and where there are standing Treaty rights.＊ 228 Thus, the Crown must prove that it has discharged the duty to consult, before it can justify an infringement.＊229 　The duty to consult stems from the honour of the Crown.＊230 The honour of the Crown is a concept that the Crown upholds its promise without any sharp dealings when engaged with Indigenous peoples. In other words, the “honour of the Crown requires that the Crown act with good faith.”＊231 Since Aboriginal and Treaty rights are communal rights, the duty to consult is owed to the community, not to specific individuals. 　While the Crown may fulfill these obligations through a regulatory body, such as the National Energy Board

（NEB）,＊ 232 o r de l ega t e p rocedura l a spec t s t o businesses,＊ 233 the Crown cannot contract out of its responsibility.＊234 The duty to consult ultimately rests with the Crown.＊ 235 Moreover, although there is no explicit legislative action that engages a duty to consult,＊ 236 any action of the Crown will invoke the duty to consult , i f there is real or construct ive knowledge＊ 237 of an Aboriginal right or a potential claim to an Aboriginal right. In the case of a Treaty

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right, as the Crown is a party to the Treaty, it will always be held that the Crown had full knowledge of the right.＊238 Once the Crown is aware that a “conduct, immediate or prospective, may adversely impact on established or claimed rights,”＊239 the duty to consult will be invoked.　The degree of consultation is context-dependent, and the “scope of the duty is proportionate.”＊ 240 For example, if the Aboriginal right claim is weak or the likely adverse effect is minimal, the duty to consult may be discharged by simply providing notice.＊241 The Supreme Court of Canada has also held that activities such as an environmental impact assessment （EIA） may be sufficient in some circumstances. Furthermore, in some cases, the duty to consult may be satisfied through standard business practices or regulatory requirements , without any need for addit iona l consultation.＊ 242 The duty to consult also includes a duty to accommodate the needs and concerns expressed by Indigenous peoples,＊243 and the degree of accommodation also depends on the strength of the claim. The courts held that “[c]onsultation that excludes from the outset any form of accommodation would be meaningless,”＊244 and that the duty normally includes

“the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision.”＊ 245 However, the duty to consult and accommodate is not a duty to agree.＊246

　I n e x c e p t i o n a l c i r c u m s t a n c e s , w h e r e t h e contemplated actions by the Crown is extremely intrusive, Delgamuukw held that a duty to consult may require a form of consent.＊247 However, Haida Nation ruled that a consent is only appropriate “in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take.”＊ 248 Thus, the degree of consultation and accommodation depends on the circumstances of each case.　The importance of the duty to consult should not be underestimated. The courts have made it clear that failures to adhere to this duty will entitle a claimant to a diverse array of remedies, including injunctive relief against the disputed activity, revocation of a license,

damages, or a court order to carry out the necessary consultation.＊249 In extreme circumstances, the courts may quash the impugned action or project altogether.＊250 Even if a project is approved by the government, the courts can overturn such license or approval, exposing businesses to significant risks. As a result, it is in the best interest of all parties to operate in good faith and a t t empt t o mee t , and where pos s i b l e exceed , expectations under this duty.

Valid objective　As identified in Sparrow, the justification process will require a valid objective.＊ 251 Much like the duty to consult, a valid objective represents another precursor requirement for the Crown before it can argue justification of the infringement. While the case law is rather limited on examples of valid objectives, they should not include “measures enacted for relatively unimportant reasons.”＊ 252 Sparrow defines a valid objective as “compelling and substantial.”＊253 Yet this is rather nebulous, and the courts have restrained from engaging in a liberal interpretation of such valid objectives. In a more recent case Tsilhqot’in, the notion of a compelling and substantial objective was defined as a “broader public goal asserted by the government [furthering] the goal of reconciliation, having regard to both the Aboriginal interest and the broader public objective”＊254

　To date, some of the examples of such compelling and substantial objectives identified by the courts include： general economic development, agriculture, forestry, mining, protection of the environment or endangered species, hydroelectric power, settlement of f o r e i g n p opu l a t i o n s a nd t h e d eve l o pmen t o f infrastructure.＊255 To summarize, the definition from Tsilhqot’in suggests that a compelling and substantial objective may be anything that serves the public interest but still upholds the honor of the Crown towards Indigenous peoples of Canada.

Justification test　If the duty of consult is discharged and a valid objective for the infringing action is identified, the Crown may justify the infringement. The test for justification is whether or not the Crown’s actions


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suffice to meet the obligations set out by its fiduciary duty to Indigenous peoples .＊ 256 In Sparrow, the Supreme Court of Canada described the Crown’s fiduciary duty as follows：“special trust relationship and the respons ib i l i ty o f the government v is -à -v i s abor ig ina l s must be the f i r s t cons iderat i on in determining whether the legislation or action in question can be justified.”＊257 The sui generis nature of Abor ig i na l r i gh t s and the Crown ’ s h i s t o r i c a l relationship with Indigenous peoples is the source of the f iduciary obl igat ions ,＊ 258 and this was f irst recognized in the seminal case Guerin.＊ 259 The language of “recognized and affirmed”＊260 within the Constitution Act, 1982 is of central importance, as it

“incorporate[s] the fiduciary relationship”＊261 into the Crown’s action concerning Indigenous peoples. 　While the exact nature of the Crown’s fiduciary duty is context-dependent, Sparrow provided some guidelines to determine whether the Crown has met its fiduciary obligation by asking the following questions：＊262

　（i） Does the infringement achieve necessary objective in the least impairing manner possible?

　（ii） Is compensation necessary and if so in what form?

　（iii） Was adequate consultation of the objective and subsequent infringement conducted?

　This is not an exhaustive list but a demonstration of the scope, upon which the fiduciary duty analysis may be conducted.＊263 In Tsilhqot’in, the Supreme Court of Canada clarif ied that the fiduciary duty not only requires the Crown to respect First Nation interests,＊264 but also to “infuses an obligation of proportionality into the justification process.”＊265

　By introducing the idea of proportionality, the Supreme Court of Canada established a three-step method to assess whether the infringement of an Aboriginal right can be justified. The three steps are as follows：　（i） Rational Connection： the infr ingement is

necessary to achieve the Crown’s objective；　（ii） Minimal Impairment： the Crown infringed no

further than necessary to achieve the Crown’s objective； and

　（iii） Proportionality of Impact： the benefits from the Crown’s action must be greater than the

adverse effects on the Aboriginal interest.＊266 　Thus, even if a valid objective is identified with a public interest, all these steps must be satisfied in order for the Crown to justify its infringement on an Aboriginal interest.　The rational connection requirement effectively means that if the infringement is avoidable, then there is no justification. The minimal impairment requirement is related to the Crown’s fiduciary obligations to Indigenous peoples. Gratuitous or careless incursions by the Crown will not be tolerated. The closer the infringement comes to a total prohibition on exercising the infringed right, the less likely it can be justified as minimally impairing. Finally, the proportionality of impact requirement is a balancing exercise of positive and negative effects. In determining the positive and negative impacts, the duty to consult discussed earlier may be relevant, as the consultation process will uncover the needs of the community and provide effective community involvement or compensation. The consultation process also offers an opportunity to reduce what may otherwise be an unavoidable and severe adverse effect of the Crown’s infringing action. Engagement with relevant Indigenous communities may also reveal opportunities to create greater benefits to them through employment opportunities and economic stimulus from the project itself, which may coun te rba l ance the adver se e f f e c t s f r om the infringement.

Conclusion

　The purpose of this paper is to provide an overview of Indigenous peoples of Canada and their rights in the modern jurisprudence. In Part 1, we reviewed the historical context, focusing on the relationship between Indigenous peoples and European settlers. In Part 2, we provided the political context to show how the discourse on Indigenous affairs has changed from the Right Honourable Stephen Harper’s government to the current government led by the Right Honourable Justin Trudeau. Having set the stage by providing the historical background and the context of contemporary Canadian politics, we examined the development of Canadian jurisprudence in regards to the rights of the Indigenous peoples in Part 3.

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　The road to reconciliation has just began in Canada, and many proposals of the “94 Calls to Action” of the Truth and Reconciliation Committee have yet to be implemented. The area of law involving Indigenous Canadians is rapidly evolving. Astute businesses must be well informed of the developing jurisprudence, especially those in the field of natural resources development.　In this paper, we discussed some of the milestone cases from the Canadian courts, including seminal cases from the Supreme Court of Canada. Lawsuits involving Indigenous rights take years if not decades to be resolved. While the jurisprudence will continue to

evolve, the Canadian jurisprudence follows the English tradition, and, as such, the legal precedents enjoy a certain degree of gravitas； the fundamental principles explored in this paper are unlikely to change drastically in the coming years. As Canada implements various legislation and policies to further the reconciliation with its Indigenous population, the business sector should remain informed about the new developments.

Acknowledgement

　The authors would like to express their gratitude to all those who made this paper possible.

<Works Cited>＊1： Constitution Act, 1982, being Schedule B to the Canada Act 1982 （UK）, 1982, c 11 [Constitution Act, 1982].＊2： Canada, Statistics Canada, Aboriginal Peoples in Canada：Key Results from the 2016 Census （Ottawa：Statistics

Canada, 2017） at 1, online：Government of Canada <http://www.statcan.gc.ca/daily-quotidien/171025/dq171025a-eng.htm>.

＊3： Ibid.＊4： Ibid at 3.＊5： Ibid at 2. ＊6： Ibid at 10.＊7： Ibid at 2.＊8： Indian Act, RSC 1985, c I-5.＊9： R v Lavigne, 2006 SCC 10, [2006] 1 SCR 392. ＊10： Canada, Statistics Canada, supra note 2 at 3.＊11： Ibid.＊12： Ibid.＊13： Ibid at 2.＊14： The Constitution Act, 1867, 30 & 31 Vict, c 3, ss 91-92 [British North America Act].＊15： Reference whether “Indians” includes “Eskimo”, [1939] SCR 104, [1939] 2 DLR 417. ＊16： Canada, Statistics Canada, supra note 2 at 8.＊17： Inuit Tapiriit Kanatami, “Maps of Inuit Nunangat （Inuit Regions of Canada）” （25 May 2018）, online：Inuit

Tapiriit Kanatami <https://www.itk.ca/maps-of-inuit-nunangat/>.＊18： Canada, Statistics Canada, supra note 2 at 4. ＊19： Ibid at 5. ＊20： Ibid. ＊21： Margaret Conrad, A Concise History of Canada （New York：Cambridge University Press, 2012） at 10.＊22： Ibid at 11.＊23： Ibid.＊24： Ibid at 15.＊25： Robert Bothwell, A Traveller’s History of Canada （London：Cassell & Co., 2001） at 10. ＊26： Canada, Indigenous and Northern Affairs Canada, “The Robinson Treaties （1850）” （15 September 2010）,


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online：Government of Canada <http://www.aadnc-aandc.gc.ca/eng/1100100028974/1100100028976>. ＊27： Ibid.＊28： Ibid.＊29： Canada, Indigenous and Northern Affairs Canada,“Treaties with Aboriginal People in Canada”（15 September

2010, online：Government of Canada <http://www.aadnc-aandc.gc.ca/eng/1100100032291/1100100032292>.＊30： Nisga’a Final Agreement, 27 April 1999 （entered into force 11 May 2000） online：<https://www2.gov.bc.ca/

assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/nisga_final_agreement_pdf.pdf >.

＊31： Canada, Indigenous and Northern Affairs Canada, “Treaty Land Entitlement”（11 April 2017）, online：Government of Canada <http://www.aadnc-aandc.gc.ca/eng/1100100034822/1100100034823>.

＊32： Canada, Indigenous and Northern Affairs Canada, “Statement of apology to former students of Indian Residential Schools” （11 June 2008）, online：Indigenous and Northern Affairs Canada <http://www.aadnc-aandc.gc.ca/eng/1100100015644/1100100015649>.

＊33： Willow J Anderson, “‘Indian Drum in the House’ : A Critical Discourse Analysis of an Apology for Canadian Residential Schools and the Public’s Response” （2012） 74（6） The International Communication Gazette at 579；Cynthia Wesley-Esquimaux, “Stephen Harper and Indigenous Peoples” in Jennifer Ditchburn & Graham Fox, eds, The Harper Factor （Montreal；Kingston；London；Chicago：McGill-Queen’s University Press, 2016） at 224.

＊34： Beverly Jacobs, “Response to Canada’s Apology to Residential School Survivors” （2008） 26 Canadian Woman Studies 3/4 at 223-225；Anderson, supra note 33 at 579；Wesley-Esquimaux, supra note 33 at 224.

＊35： Canada, Indigenous and Northern Affairs Canada, “Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples” （12 November 2010）, online：Indigenous and Northern Affairs Canada <http://www.aadnc-aandc.gc.ca/eng/1309374239861/1309374546142>.

＊36： Wesley-Esquimaux, supra note 33 at 224-225. ＊37： Ibid.＊38： Canada, “Budget 2012：Chapter 3.3 Investing in Training, Infrastructure and Opportunity” （29 March 2012）,

online：Government of Canada <https://budget.gc.ca/2012/plan/chap3-3-eng.html#a23>.＊39： Assembly of First Nations, “Federal Budget 2012：Summary and Considerations” （5 April 2012）, online：

Assembly of First Nations <https://www.afn.ca/uploads/files/federalbudgetanalysis2012afn.pdf>.＊40： Bill C-33, An Act to establish a framework to enable First Nations control of elementary and secondary education

and to provide for related funding and to make related amendments to the Indian Act and consequential amendments to other Acts, 2nd Sess, 41st Parl, 2014 （1st reading in the House of Commons 10 April 2014）, online：Parliament of Canada <http://www.parl.ca/DocumentViewer/en/41-2/bill/C-33/first-reading>.

＊41： Michael Mendelson, A Second Look at the First Nations Control of First Nations Education Act, （Ottawa：Caledon Institute of Social Policy, 2014） at 13-14, online：Caledon Institute of Social Policy　<https://maytree.com/wp-content/uploads/1049ENG.pdf>；Wesley-Esquimaux, supra note 33 at 226.

＊42： Wesley-Esquimaux, supra note 33 at 227.＊43： Canada, Indigenous and Northern Affairs Canada, “Truth and Reconciliation Commission of Canada”（6 March

2018）, online：Indigenous and Northern Affairs Canada <https://www.aadnc-aandc.gc.ca/eng/1450124405592/1450124456123>.

＊44： Ibid.＊45： Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada：Calls to

Action, （Winnipeg：2012）, online：Truth and Reconciliation Commission of Canada <http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Calls_to_Action_English2.pdf >.

＊46： Western University, Indigenous Strategic Plan （6 October 2016）, online：Western University <http://indigenous.

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uwo.ca/universitywide/Indigenous%20Strat%20Plan%20-%20Final.pdf#Draft%20ISP >.＊47： University of Victoria, Indigenous Plan 2017-2022, online：University of Victoria <https://www.uvic.ca/

assets2012/docs/indigenous-plan.pdf>；University of Calgary, Indigenous Strategy – Together in a Good Way：A Journey of Transformation and Renewal （February 2018）, online：University of Calgary <https://www.ucalgary.ca/indigenous-strategy/files/indigenous-strategy/indigenous-strategy_publication_digital_feb2018.pdf>.

＊48： University of Victoria, JD/JID Joint Degree Program in Canadian Common Law and Indigenous Legal Orders, online：University of Victoria <https://www.uvic.ca/law/assets/docs/jid/JIDBrochureWeb2.pdf>.

＊49： The Canadian Chamber of Commerce, Coming Together, Making Progress：Business’s Role in Reconciliation with Indigenous Peoples （May 2017） at 3, online：The Canadian Chamber of Commerce <http://www.chamber.ca/publications/reports/2017-archives/>.

＊50： Ibid at 7. ＊51： Ibid at 17-18.＊52： Ibid at 19-20.＊53： Liberal Party of Canada, Real Change：A Plan for a Strong Middle Class （2015） at 41-42, 46-48, online：Liberal

Party of Canada <https://www.liberal.ca/wp-content/uploads/2015/10/New-plan-for-a-strong-middle-class.pdf>.＊54： Eric Grenier, “Indigenous voter turnout was up — and Liberals may have benefited most”, Canadian Broadcast

Corporation （16 December 2015）, online：<http://www.cbc.ca/news/politics/grenier-indigenous-turnout-1.3365926>.

＊55： Eric Grenier, “Indigenous voter turnout was up — and Liberals may have benefited most,” Canadian Broadcast Corporation （16 December 2015）, online：<http://www.cbc.ca/news/politics/grenier-indigenous-turnout-1.3365926>.

＊56： Justin Trudeau, Prime Minister of Canada, Mandate Letters （Ottawa：Office of the Prime Minister, 2015）, online：Office of the Prime Minister <https://pm.gc.ca/eng/mandate-letters>.

＊57： Justin Trudeau, Prime Minister of Canada, Minister of Natural Resources Mandate Letter （Ottawa：Office of the Prime Minister, 2015）, online：Office of the Prime Minister <https://pm.gc.ca/eng/minister-natural-resources-mandate-letter>.

＊58： Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, 1st Sess, 42nd Parl, 2018 （1st reading in the House of Commons 8 February 2018）, online：Parliament of Canada <http://www.parl.ca/DocumentViewer/en/42-1/bill/C-69/first-reading#enH2121>.

＊59： Bill C-69, supra note 58 at Part 1, Section 22.＊60： Martin Olszynski, “In Search of #BetterRules：An Overview of Federal Environmental Bills C-68 and C-69,” （15

February, 2018）, ABlawg （blog）, online：<http://ablawg.ca/wp-content/uploads/2018/02/Blog_MO_Bill68_Bill69.pdf>.

＊61： Bill C-69, supra note 58 at Part 1, Section 157.＊62： Ibid at Part 1, section 158.＊63： Canada, Budget 2016：Growing the Middle Class （Ottawa：2016）, online：Government of Canada <https://

www.budget.gc.ca/2016/home-accueil-en.html>.＊64： Assembly of First Nations, 2016 Federal Budget Overview （2016） at 1, online：Assembly of First Nations

<https://www.afn.ca/uploads/files/16-03-24_afn_budget_analysis_fe.pdf>. ＊65： Canada, Budget 2017：Building a Strong Middle Class （Ottawa：2017）, online：Government of Canada

<https://www.budget.gc.ca/2017/home-accueil-en.html>；Canada, Budget 2018：Equality Growth - A Strong Middle Class （Ottawa：2018）, online： Government of Canada <https://www.budget.gc.ca/2018/home-accueil-en.html>.

＊66： Assembly of First Nations, Budget 2018 Makes Essential Investments in First Nations Children and Investments


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to Strengthen First Nations Governments （27 February 2018）, online：Assembly of First Nations <http://www.afn.ca/2018/02/28/budget-2018-makes-essential-investments-first-nations-children-investments-strengthen-first-nations-governments/>.

＊67： Office of the Prime Minister, Prime Minister Justin Trudeau’s Address to the 72th Session of the United Nations General Assembly （Ottawa：Office of the Prime Minister, 2017）, online：Office of the Prime Minister <https://pm.gc.ca/eng/news/2017/09/21/prime-minister-justin-trudeaus-address-72th-session-united-nations-general-assembly>.

＊68： Liberal Party of Canada, Real Change：A Plan for a Strong Middle Class （2015） at 42, online：Liberal Party of Canada <https://www.liberal.ca/wp-content/uploads/2015/10/New-plan-for-a-strong-middle-class.pdf>.

＊69： Joanna Smith, “Canada will implement UN Declaration on Rights of Indigenous Peoples, Carolyn Bennett says,” The Toronto Star （12 November 2015）, online：<https://www.thestar.com/news/canada/2015/11/12/canada-will-implement-un-declaration-on-rights-of-indigenous-peoples-carolyn-bennett-says.html>.

＊70： Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1st Sess, 42nd Parl, 2016 （1st reading in the House of Commons 21 April 2016）, online：Parliament of Canada <http://www.parl.ca/DocumentViewer/en/42-1/bill/C-262/first-reading>；John Paul Tasker, “Liberal government backs bill that demands full implementation of UN Indigenous rights declaration,” Canadian Broadcast Corporation （21 November 2017）, online：<http://www.cbc.ca/news/politics/wilson-raybould-backs-undrip-bill-1.4412037>.

＊71： Bill C-262, supra note 70 at Preamble.＊72： New Democratic Party, Building the Country of Our Dreams：Tom Mulcair’s Plan to Bring Change to Ottawa

（2015） at 36, online：New Democratic Party <http://xfer.ndp.ca/2015/2015-Full-Platform-EN.pdf>.＊73： Leyland Cecco, “Canada indigenous leaders divided over Trudeau’s pledge to put them first,” The Guardian （18

February 2018）, online：<https://www.theguardian.com/world/2018/feb/18/canada-indigenous-first-nations-justin-trudeau-pledge-reaction>.

＊74： Ibid.＊75： Emilee Gilpin, “'Paternalistic’ First Nations plan flagged in Trudeau minister’s Kinder Morgan memos,” The

National Observer （22 January 2018）, online：<https://www.nationalobserver.com/2018/01/22/news/paternalistic-first-nations-plan-flagged-trudeau-ministers-kinder-morgan-memos>.

＊76： John Geddes, “Indigenous lawyers upset over Trudeau’s Supreme Court pick,” MacLean’s （29 November 2017）, online：<http://www.macleans.ca/politics/ottawa/first-nations-lawyers-upset-over-trudeaus-supreme-court-pick/>.

＊77： Indigenous Bar Association, “Indigenous Bar Association once more expresses its disappointment with Prime Minister Justin Trudeau’s failure to nominate an indigenous candidate to the Supreme Court of Canada” （29 November 2017）, online： Indigenous Bar Association <http://www.indigenousbar.ca/pdf/2017%20November%2029%20IBA%20-%20MEDIA%20RELEASE%20-%20Justice%20Sheilah%20Martin%20（F）.pdf>.

＊78： Pasco v Canadian National Railway Co, [1986] 1 CNLR 35, 69 BCLR 76 at para 9；R v Sparrow, [1990] 1 SCR 1075, 70 DLR （4th） 385 at para 49 [Sparrow].

＊79： Beverly McLachlin, “Unity, diversity and cultural genocide：Chief Justice McLachlin’s complete speech,” The Globe and Mail （29 May 2015）, online：<https://www.theglobeandmail.com/news/national/unity-diversity-and-cultural-genocide-chief-justice-mclachlins-complete-text/article24698710/>.

＊80： Gordon Gibson, “Gordon Gibson：It is bad for democracy when nine unelected people can make law,” National Post （9 June 2015）, online：<http://nationalpost.com/opinion/gordon-gibson-it-is-bad-for-democracy-when-nine-unelected-people-can-make-law>；Lysiane Gagnon, “McLachlin’s comments a disservice to her court and to aboriginals,” The Globe and Mail （10 June 2015）, online：<https://www.theglobeandmail.com/globe-debate/mclachlins-comments-a-disservice-to-her-court-and-to-aboriginals/article24879482/>.

＊81： Constitution Act, 1982, supra note 1.

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＊82： Calder v British Columbia （Attorney General）, [1973] SCR 313, 34 DLR （3d） 145.＊83： Constitution Act, 1982, supra note 1.＊84： CED 4th （online）, Aboriginal Law “Aboriginal Title” （III.3.（b）.（v）） at §630＊85： Constitution Act, 1982, supra note 1.＊86： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.5.（a）.（vii）） at §425.＊87： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.5.（a）.（ii）.B.1） at §303.＊88： R v Van der Peet, [1996] 2 SCR 507, 137 DLR （4th） 289 at para 68 [Van der Peet].＊89： Ibid at para 68.＊90： CED 4th （online）, Evidence “Historical Declarations” （XII.6.（g）.（iii）） at §671.＊91： Van der Peet, supra note 88 at para 49.＊92： Canada, Indigenous and Northern Affairs Canada, “Aboriginal Rights”（15 Sept 2010）, online：Government of

Canada <https://www.aadnc-aandc.gc.ca/eng/1100100028605/1100100028606>.＊93： Van der Peet, supra note 88 at paras 29-30.＊94： Ibid at para 30.＊95： Canada, Indigenous and Northern Affairs Canada, supra note 92.＊96： CED 4th （online）, Aboriginal Law “Aboriginal Title” （III.3.（b）.（v）） at § 627.＊97： Van der Peet, supra note 88 at para 48.＊98： Ibid at para 41.＊99： Ibid at para 52.＊100： Ibid at para 54.＊101： Lax Kw’alaams Indian Band v. Canada （Attorney General）, [2011] 3 SCR 535, 338 D.L.R. （4th） 193 at paras

44-45.＊102： Van der Peet, supra note 88 at paras 60-61.＊103： Ibid at para 65.＊104： Ibid at para 64；Sparrow, supra note 78 at para 27.＊105： Van der Peet, supra note 88 at para 73.＊106： Ibid.＊107： Ibid at para 55.＊108： Ibid.＊109： Ibid at para 59.＊110： Ibid at para 70.＊111： Ibid. ＊112： Ibid at para 71.＊113： Ibid.＊114： Ibid.＊115： Ibid.＊116： Ibid at para 69.＊117： Constitution Act, 1982, supra note 1.＊118： CED 4th （online）, Aboriginal Law “Métis” （III.1.（b）.（ii）） at §462.＊119： R v Powley, [2003] 2 SCR 207, 230 DLR （4th） 1 at para 10 [Powley].＊120： Ibid at para 14.＊121： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.5.（a）.（ii）.A） at §293.＊122： Powley, supra note 119 at para 31.＊123： Ibid.＊124： Ibid at para 32.


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＊125： Ibid.＊126： Ibid at para 33.＊127： Ibid.＊128： Delgamuukw v British Columbia, [1997] 3 SCR 1010, 153 DLR （4th） 193 at para 165 [Delgamuukw].＊129： CED 4th （online）, Aboriginal Law “Aboriginal Title” （III.3.（b）.（v）） at §629.＊130： Delgamuukw, supra note 128 at para 112.＊131： Ibid at para 117.＊132： Ibid at para 115.＊133： Ibid at para 114.＊134： Ibid at para 117.＊135： Ibid at para 128.＊136： Ibid.＊137： Ibid at para 129.＊138： Ibid at para 113.＊139： Ibid at para 143.＊140： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.5.（a）.（ii）.B.1） at §303.＊141： Delgamuukw, supra note 128 at para 144.＊142： Ibid at para 148.＊143： Ibid.＊144： Ibid at para 149.＊145： Ibid.＊146： Ibid at para 152.＊147： Ibid at para 153.＊148： Ibid.＊149： Ibid at para 154.＊150： Richard Overstall, “Encountering the Spirit in the Land：‘Property’in a Kinship-Based Legal Order” in John

McLaren, A R Buck & Nancy E Wright, eds, Despotic Dominion：Property Rights in British Settler Societies （Vancouver：UBC Press, 2005） at 22.

＊151： Delgamuukw, supra note 128 at para 158.＊152： Ibid at para 156.＊153： Ibid.＊154： Ibid at para 157.＊155： Ibid at para 158.＊156： Ibid at para 159.＊157： Canada, Indigenous and Northern Affairs Canada, “Treaty Rights” （15 Sept 2010）, online：Government of

Canada <http://www.aadnc-aandc.gc.ca/eng/1100100028602/1100100028603>.＊158： R v Badger, [1996] 1 SCR 771 at para 41, 133 DLR （4th） 324 [Badger].＊159： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.5.（a）.（iii）.B.2） at §351.＊160： R v Sioui, [1990] 1 SCR 1025, [1990] 3 CNLR 127 at para 43 [Sioui].＊161： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.5.（a）.（iii）.B.2） at §351.＊162： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.5.（a）.（iii）.A） at §341.＊163： Ibid at §342.＊164： R v Marshall, [1999] 3 SCR 533, 179 DLR （4th） 193 at para 17 [Marshall 2].＊165： R v Simon, [1985] 2 SCR 387, [1986] 1 CNLR 153 at para 47 [Simon].＊166： CED 4th （online）, Aboriginal Law “Treaty Right” （III.4.（b）.（i）.B） at §759.

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＊167： Sioui, supra note 160 at para 17.＊168： Ibid at para 46.＊169： R v Sundown, [1999] 1 SCR 393, [1999] 2 CNLR 289 at para 24.＊170： Sparrow, supra note 78 at para 68.＊171： CED 4th （online）, Constitutional Law “Rights of the Aboriginal Peoples of Canada” （X.2） at §687.＊172： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.5.（a）.（iii）.C.1） at §359.＊173： Quebec （Attorney General） v Moses, 2010 SCC 17 at para 7, [2010] 1 SCR 557 [Moses].＊174： Ibid.＊175： Beckman v Little Salmon / Carmacks First Nation, 2010 SCC 53 at para 9, [2010] 3 SCR 103 [Little Salmon].＊176： Moses, supra note 173 at para 7, [2010] 1 SCR 557 [Moses].＊177： Little Salmon, supra note 175 at para 12.＊178： R v Marshall, [1999] 3 SCR 456, [1999] 4 CNLR 161 [Marshall 1].＊179： Marshall 2, supra note 164.＊180： Marshall 1, supra note 178 at para 78.＊181： Ibid at para 14.＊182： Sioui, supra note 160 at para 114.＊183： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.5.（a）.（i）.C） at §274.＊184： Ibid at §272.＊185： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（iv）.A） at §394.＊186： Sparrow, supra note 78 at para 37；Badger, supra note 158 at para 41.＊187： Delgamuukw, supra note 128 at paras 37 and 51；CED 4th （online）, Aboriginal Law “Provincial Legislative

Authority and Indigenous Peoples” （II.2.（b）.（iii）.B.1） at §53.＊188： Sparrow, supra note 78 at para 37.＊189： R v Gladstone, [1996] 2 SCR 723, 137 DLR （4th） 648 at para 34 [Gladstone].＊190： Simon, supra note 165 at para 38.＊191： Ibid at para 35.＊192： Sioui, supra note 160 at para 96.＊193： Buctouche First Nation v New Brunswick, [2014] NBJ No 266, 245 ACWS （3d） 500 at para 18；Saulteau First

Nations v British Columbia （Oil & Gas Commission）, 2004 BCSC 92, [2004] 4 CNLR 284 at para 4；Dene Tha’ First Nation v British Columbia （Minister of Energy and Mines）, 2013 BCSC 977, 51 BCLR （5th） 380 at para 94.

＊194： Sparrow, supra note 78 at para 70；CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982” （II.5.（a）.（v）） at §408.

＊195： Badger, supra note 158 at para 73.＊196： Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 104, [2014] 2 SCR 257 [Tsilhqot’in].＊197： Sparrow, supra note 78 at para 70.＊198： Gladstone, supra note 189 at para 43.＊199： Tsilhqot’in, supra note 196 at para 104.＊200： Sparrow, supra note 78.＊201： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982” （II.5.（a）.（v）） at §409.＊202： R v Morris, [2006] 2 SCR 915, 274 DLR （4th） 193 at para 53.＊203： R v Nikal, [1996] 1 SCR 1013, [1996] 3 CNLR 178.＊204： R v Côté, [1996] 3 SCR 139, [1996] 4 CNLR 26.＊205： Marshall 1, supra note 178.＊206： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982” （II.5.（a）.（v）） at §410.


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＊207： British North America Act, supra note 14.＊208： Nigel Bankes, “Grassy Narrows, Division of Powers and International Law”（6 August 2014）, ABlawg （blog）,

online：<http://ablawg.ca/2014/08/06/grassy-narrows-division-of-powers-and-international-law/> accessed 10 February 2018

＊209： British North America Act, supra note 14.＊210： Canadian Western Bank v Alberta, 2007 SCC 22, [2007] 2 SCR 3.＊211： Delgamuukw, supra note 128 at para 181.＊212： Tsilhqot’in, supra note 196.＊213： Grassy Narrows First Nation v Ontario （Minister of Natural Resources）, 2014 SCC 48, [2014] 2 SCR 447 [Grassy

Narrows].＊214： CED 4th （online）, Aboriginal Law “Provincial Legislative Authority and Indigenous Peoples” （II.2.（b）.（iii）.B.1）

at §53.＊215： CED 4th （online）, Aboriginal Law “Provincial Legislative Authority and Indigenous Peoples” （II.2.（b）.（iii）.B.2）

at §56.＊216： CED 4th （online）, Aboriginal Law “Indians” （II.2.（a）.（ii）.B） at §12.＊217： Tsilhqot’in, supra note 196 at para 150.＊218： Ibid.＊219： Ibid.＊220： Grassy Narrows, supra note 213 at para 53.＊221： CED 4th （online）, Aboriginal Law “Provincial Legislative Authority and Indigenous Peoples” （II.2.（b）.（iii）.B.1）

at §53.＊222： CED 4th （online）, Aboriginal Law “Provincial Legislative Authority and Indigenous Peoples” （II.2.（b）.（iii）.B.2）

at §56.＊223： British North America Act, supra note 14.＊224： Sparrow, supra note 78 at para 47.＊225： Tsilhqot’in, supra note 196 at para 97.＊226： Constitution Act, 1982, supra note 1.＊227： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.5.（a）.（vi）.A） at §413.＊228： CED 4th （online）, Aboriginal Law “The Duty to Consult” （II.4.（c）.（vi）） at §183.＊229： CED 4th （online）, Aboriginal Law “Obligations to Indigenous Peoples：Honour of the Crown”（II.4.（c）.（i）） at §114.＊230： Haida Nation v British Columbia （Minister of Forests）, 2004 SCC 73 at para 16, [2004] 3 SCR 511 [Haida

Nation].＊231： Ibid at para 41.＊232： Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41 at para 44, [2017] 1 SCR 1099

[Chippewas of the Thames].＊233： Haida Nation, supra note 230 at para 53.＊234： Little Salmon, supra note 175 at para 61.＊235： Haida Nation, supra note 230 at para 53.＊236： Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 44, [2010] 2 SCR 650 [Rio Tinto];

CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.4.（c）.（v）） at §176.＊237： Haida Nation, supra note 230 at para 35.＊238： Ibid at para 39；CED 4th （online）, Aboriginal Law “The Duty to Consult” （II.4.（c）.（vii）.A） at §191.＊239： Rio Tinto, supra 236 at para 54.＊240： Haida Nation, supra note 230 at para 39；CED 4th （online）, Aboriginal Law “The Duty to Consult” （II.4.（c）.（vii）.

A） at §190.

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＊241： Delgamuukw, supra note 128 at para 168.＊242： Taku River Tlingit First Nation v British Columbia （Project Assessment Director）, 2004 SCC 74 at para 40, [2004]

3 SCR 550 [Taku River].＊243： Haida Nation, supra note 230 at para 47, [2004] 3 SCR 511.＊244： Mikisew Cree First Nation v. Canada （Minister of Canadian Heritage）, 2005 SCC 69 at para 54, [2005] 3 SCR

388.＊245： Haida Nation, supra note 230 at para 44.＊246： Ibid at para 42；Taku River, supra note 242 at para 22.＊247： Delgamuukw, supra note 128 at para 168.＊248： Ibid at para 48.＊249： Rio Tinto, supra note 236 at para 37.＊250： Clyde River （Hamlet） v Petroleum Geo-Services Inc, 2017 SCC 40 at para 39, [2017] 1 SCR 1069；Chippewas

of the Thames, supra note 232；CED 4th （online）, Aboriginal Law “The Duty to Consult” （II.4.（c）.（xi）.A） at §249.

＊251： Sparrow, supra note 78 at para 64.＊252： Delgamuukw, supra 128 at para 161.＊253： Sparrow, supra note 78 at para 71.＊254： Tsilhqot’in Nation, supra note 78 at para 82.＊255： Delgamuukw, supra note 128 at para 165.＊256： CED 4th （online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ” （II.5.（a）.（vi）.C） at §420.＊257： Sparrow, supra note 78 at para 75.＊258： Ibid at para 59.＊259： Guerin v R, [1984] 2 SCR 335, [1984] 6 WWR 481 at para 79.＊260： Constitution Act, 1982, supra note 1.＊261： Sparrow, supra note 78 at para 62.＊262： Ibid at para 82.＊263： Ibid at para 83.＊264： Tsilhqot’in, supra note 196 at para 86.＊265： Ibid at para 87.＊266： Ibid.


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執筆者紹介

Matthew WarrenJuris Doctor candidate, University of CalgaryEducation： University of Calgary, Faculty of Law, Juris Doctor candidate （2020）

Queen’s University, Bachelor of Sciences（Honours）, Specialization in Life SciencesExperiences： UniFirst Canada （October 2013～September 2015）：

・District Service Manager & Account Representative Canon Canada（July 2012～May 2013）：・Sales Representative

Interests：Scuba Diving, Target Shooting, Soccer, Hiking, Skiing and Kayaking

Brady ChapmanJuris Doctor candidate, University of CalgaryEducation： University of Calgary, Faculty of Law, Juris Doctor candidate（2020）

University of Ottawa, Faculty of Arts, Honours Bachelor of Arts with a Major in Philosophy and Major in Communications（2017）

Experiences： MLT Aikins LLP（2018～now） Natural Resources Canada, Office of the Chief Scientist（2015～2017） University of Ottawa, Academic Writing Help Centre （2015～2016）

Interests：Hockey, Volleyball, Squash, Camping, Hiking and Guitar

Kenryo Mizutani（水谷　健亮）Senior Coordinator, General Coordination Department, Japan Oil, Gas and Metals National CorporationVisiting Scholar, Canadian Institute of Resources LawJuris Doctor candidate, University of CalgaryEducation： University of Calgary, Faculty of Law, Juris Doctor candidate（2020）

London School of Economics and Political Science（LSE）, Master of Public Administration with Distinction in International Development（2012） Boston University, Bachelor of Arts, summa cum laude, in Economics and International Relations with a Minor in German（2010） Free University of Berlin, Study Abroad Program（summer 2007）

Experiences： Japan Oil, Gas and Metals National Corporation（2012～now）・General Coordination Department ・Overseas Exploration Division, Exploration Department, Oil & Gas Upstream Technology Unit ・Strategic Planning Division, General Coordination Department

Professional Affiliation：Association of International Petroleum Negotiators（AIPN）Interests：Aikido, Foreign Languages, Hiking, Squash and Traveling

Documents

Indigenous Peoples of Canada and their Rights in …...peoples in Canada. The paper comprises of 3 parts. Part 1 outlines the modern-day situation of Indigenous peoples in Canada and