Tansi Nîtôtemtik,
Aboriginal law is an ever-evolving and complex area of jurisprudence. Since this year’s blog began in September, Canadian Courts have been grappling with novel and significant questions relating to Aboriginal law. Today we will highlight three ongoing cases that we believe will make lasting impacts on this area.
The Cowichan Tribes Case:
A map from 1827 showing Cowichan villages on the land that is now Richmond - Barry Lawrence Ruderman Antique Maps
Aboriginal Title was first recognized by the Canadian Supreme Court in the 1973 case of Calder.[1] Forty years later in the 2014 case of Tsilhqot'in, the Supreme Court set out the modern framework and legal test for recognizing Aboriginal Title.[2] Tsilhqot’in also included ways in which Crown entities may justifiably infringe on Aboriginal Title.[3]
Cowichan Tribes v Canada is an ongoing case before the British Columbia Superior Court that asks many unanswered questions relating to Aboriginal title. In this case, the Cowichan are claiming title over parts of Richmond, British Columbia, which encompasses not only land held by the Crown - but private land.
This is a massive case due to the introduction of evidence. The court estimates that it will take over 400 days of trial, which will stretch over a period of three years.[4] With appeals, litigation will most likely last well over a decade. There have already been several evidentiary decisions released this year stemming from Cowichan, and over the following years there will undoubtedly be countless more decisions on how the Court interacts with evidence, expert witnesses, and the Indigenous perspective of Aboriginal title claims.[5]
Restoule v Canada:
The case of Restoule involves the interpretation of the Robinson treaties, which predate Canadian confederation. In his engaging and compelling decision for the Ontario Superior Court, Justice Hennessy held that a clause that considered the future augmentation of annual payment under the treaties ought to be increased to contemporary standards.[6] This decision is one that seems to genuinely take into account the Indigenous perspective at the time that the Robinson treaties were signed. It approaches reconciliation as a concept that embraces principles of respect, responsibility, reciprocity and renewal. [7]
The decision of Restoule has been appealed by the Government of Ontario, and was before the Ontario Court of Appeal starting in January, 2021. This case could hold massive implications not only for how treaty obligations are met in practice, but also implications for what the role of the Courts is in interpreting Aboriginal law more broadly. You can read about the implications of the Superior Court decision from uAlberta Law Professor Darcy Linberg, here.
R v Desautel:
The case of Desautel was heard before the Supreme Court this past October. It relates to Section 35(1) of the Constitution Act, 1982. While the framework to assert an Aboriginal right under section 35(1) is well established – Desautel asks a very significant question: can Indigenous groups who are not currently Canadian be recognized as ‘Aboriginal People of Canada.’[8]
The applicant in Desautel is a member of an Indigenous group who were forced out of British Columbia in the 19th century. They currently reside on reservation land in Washington state, and assert that the meaning of ‘Aboriginal peoples of Canada’ is inclusive of Indigenous groups whose traditional land makes up what is now Canada. This group claims a continued connection to their traditional lands in Canada.
This Supreme Court decision should be released in the coming months. It could have further implications to how Indigenous nations are able to assert their sovereignty while existing within larger colonial governments.
Richard Desautel outside of the Court in Nelson, British Columbia. Photo: Bill Metcalfe
Keep an eye out for how the Court approaches these cases.
Until Tomorrow,
ReconciliAction YEG
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[1] Calder et al. v. Attorney-General of British Columbia, [1973] SCR 313.
[2] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.
[3] Ibid.
[4] Jacqueline Ronson, "Cowichan Nation Alliance's land rights claim comes to Duncan" The Discourse (21 January 2020) online: <https://thediscourse.ca/cowichan-valley/cowichan-nation-alliance-lawsuit-duncan>.
[5] See generally Cowichan Tribes v Canada (Attorney General), 2021 BCSC 383.
[6] Restoule v. Canada (Attorney General), 2018 ONSC 7701.
[7] Ibid, at 412.
[8] R v Desautel, 2019 BCCA 151.
