Publications for Aboriginal Rights & Land Claims

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Given the cultural and economic importance of commercial fishing to BC First Nations, and in particular coastal First Nations, the answer to this question is obviously “yes”. However, this answer must be qualified somewhat: “Yes, provided the inclusion of commercial fisheries in the treaty meets the cultural and economic needs of the respective First Nation”.

When major projects are proposed in their territories, rather than treated as governments with decision making authority, the Crown tends to treat First Nations like any other stakeholder in the environmental assessment process.

The Van der Peet“integral to a distinctive culture” test initially risked missing the mark in seeking to achieve important objectives.

This paper examines some recent developments in aboriginal title. While the body of case law concerning aboriginal law is rapidly growing, there remains only a very small handful of cases that provide specific guidance on aboriginal rights and aboriginal title. Consequently, the case focused on here--R. v. Marshall; R. v. Bernard is not particularly recent.


Douglas C. Harris

The Aboriginal peoples of Canada stand in a different legal relationship to the fisheries than non-Aboriginal Canadians.

On November 3, 2009, the B.C. Supreme Court released its judgment in Ahousaht Nation  v. Canada.  Madam Justice Garson (now J.A.) concluded that all five Nuu-chah-nulth plaintiffs have aboriginal rights to fish in their traditional territories and sell that fish into the commercial marketplace.

Aboriginal rights litigation is notoriously complex. It involves proof of facts dating back hundreds of years.

The jurisprudential life of the Crown’s duty to consult with aboriginal people in the interim of the final determination of aboriginal claims is almost a decade long. Since the Supreme Court of Canada’s confirmation of the duty in 2004, First Nations have spent a lot of litigation time and effort trying to determine just how, when, and where they can enforce this duty.

In British Columbia v Okanagan Indian Band, LeBel J stated that negotiation “remains the ultimate route to achieving reconciliation between aboriginal societies and the Crown.” Yet while negotiation is critical to achieving reconciliation, it need not and should not be the exclusive domain of reconciliation.