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Aboriginal Law in Canada

Use this guide for researching Aboriginal issues in Canadian law. It will help you to identify quickly the key legal treatises, legislation and most significant cases along with their analyses; news rss are also provided

Notable Cases in Aboriginal Law

Attorney General of Canada v Lavell; Isaac v. Bédard, [1973] S.C.R. 1349 - decision holding that Section 12(1)(b) of the Indian Act did not violate the respondents' right to "equality before the law" under Section 1 (b) of the Canadian Bill of Rights

R. v Badger, [1996] 1 S.C.R. 771 - case set out a number of principles regarding the interpretation of treaties between the Crown and Aboriginal people of Canada

Calder v British Columbia (Attorney General) [1973] S.C.R. 313 - the first time that Canadian law acknowledged that aboriginal title to land existed prior to the colonization of the continent and was not merely derived from statutory law

Chippewas of Sarnia Band v. Canada (Attorney General), 195 D.L.R. (4th) 135 - first time the Aboriginal group was claiming ownership of privately held land

Corbiere v Canada [1999] 2 S.C.R. 203 - the Court expands the scope of applicable grounds upon which a section 15(1) of the Charter claim can be based

Delgamuukw v British Columbia [1997] 3 S.C.R. 1010 - the most definitive statement on the nature of aboriginal title in Canada

Kruger and al. v The Queen, [1978] 1 S.C.R. 104 - decision on the relationship between the Indian Act and provincial game laws 

R. v Marshall; R. v. Bernard 2005 SCC 43 - the Court narrowed the test for determining the extent of constitutional protection upon aboriginal practices

Mitchell v Minister of National Revenue, [2001] 1 S.C.R. 911 - decision on aboriginal rights under s. 35(1) of the Constitution Act, 1982

Native Women's Association of Canada v Canada, [1994] 3 S.C.R. 627 -  the Court decides against the claim that the government of Canada has an obligation to financially support an interest group in constitutional negotiations, to allow the group to speak for its peopl. 

Paul v British Columbia, 2003 SCC 55 - a provincial administrative actor granted the power to determine questions of law may adjudicate matters within federal legislative competence, including s. 35 aboriginal rights matters

Re: Paulette [1973] 6 W.W.R. 97 - a decision by Justice William G. Morrow in a land claim, known as Paulette Caveat, allowing the caveat on the basis on aboriginal rights

R. v Drybones, [1970] S.C.R. 282 - a decision holding that a section of the Indian Act is inoperative because it violates the Canadian Bill of Rights

R. v. Gladstone, [1996] 2 S.C.R. 723  - modification of the Sparrow test to give more deference to the government in protecting commercial fishing rights

Guerin v. The Queen [1984] 2 S.C.R. 335 - the government has a fiduciary duty towards the First Nations of Canada and establishes aboriginal title to be a sui generis right.

R. v. Pamajewon, [1996] 2 S.C.R. 821 - the right to self-government is subject to reasonable limitations and excludes the right to control gambling

R. v. Sparrow, [1990] 1 S.C.R. 1075 - aboriginal rights that were in existence in 1982 are protected under the Constitution of Canada and cannot be infringed without justification on account of the government's fiduciary duty to the Aboriginal peoples of Canada

Re Eskimos [1939] S.C.R. 104 - a decision that for the purposes of section 91(24), Inuit should be considered Indians

St. Catherine's Milling and Lumber Co. v. The Queen (1888) 14 App. Cas. 46 (J.C.P.C.) -  please scroll down - this decision starts in the left lower corner of the page and it rules a decision that aboriginal title over land was allowed only at the crown's pleasure, and could be taken away at any time

R. v. Van der Peet, [1996] 2 S.C.R. 507 - aboriginal fishing rights did not extend to commercial selling of fish, established the Van der Peet test for determining if an aboriginal right exists

Topical Law Reports

See these topical law reports that contain cases dealing with Aboriginal law: 

Finding Relevant Case Law

To find relevant case law on a specific topic within Aboriginal law, you may want to check the following sources:

  1. Canadian Abridgement, 3rd ed. Volume 1 – Aboriginal Law – The Canadian Abridgement gives abstracts of cases arranged by topic. Available in print on the main floor of the Bora Laskin law Library (row: 19) and online from Westlaw-eCarswell (see the tutorial to the left for additional help - when  using it, please select the full screen option to view the tutorial and use the escape button to return to this guide) 
  2. Quicklaw - available to the UofT community - search >>Source Directory >>Canada >> Topical Collection of Case Law and Commentary >> Aboriginal Law Cases, Group Source (ABQ)  (see the tutorial to the left for additional help - when  using it, please select the full screen option to view the tutorial and use the escape button to return to this guide)
  3. Westlaw-eCarswell - password protected database available to UofT law students only  - search >> Cases (please see the tutorial to the left - when  using it, please, select the full screen option to view the tutorial and use the escape button to return to this guide)
  4. The…Annotated Indian Act and aboriginal constitutional provisions. (Scarborough, ON: Carswell, 1998- ) includes citation to the most significant cases on the pertinent points of the act. Available in print at the Bora Laskin Law Library KE 7704.5 .A66 – current year is on reserves
  5. Law reporters (see to the left the list of topical reporters available at the Bora Laskin law library)
  6. Canadian Legal Information Institute - publicly available database will retrieve relevant cases when searched by keyword (please see the tutorial to the left - when  using it, please, select the full screen option to view the tutorial and use the escape button to return to this guide)

Finding Sources on Quicklaw

Westlaw Canada: Search for Cases

Introduction to Legal Research in canlii