Supreme Court of Canada

Toronto Star Column on Elsipogtog and Canadian Law

Kate Fort

Here.

In 1997, the landmark Supreme Court Decision in Delgamuukw finally clarified that even under Canadian law, Aboriginal title to most of the land within British Columbia’s provincial borders had never been extinguished. This ruling had immediate implications for other areas of the country where no treaties ceding land ownership were ever signed. One day, Canadians woke up to a legal reality in which millions of acres of land were recognized as never having been acquired by the Crown, and that elephant has been occupying our national room ever since.

Unfortunately, this glaring issue did not seem to percolate into the wider Canadian consciousness, and many people remain unaware of it. In 1999, the Supreme Court passed down another judgement confirming that the Peace and Friendship Treaties of 1760-1761 did not cede land or resources. This cannot be emphasized strongly enough: the Mi’kmaq never gave up legal rights to their land or resources. Canada does not own the land that the people of Elsipogtog are defending.

This is not conspiracy theory, or indigenous interpretation. This is Canadian law, interpreted by the Supreme Court of Canada, applying Canadian constitutional principles. Yet somehow, this most important fact is left out of most reports on Elsipogtog as though it is barely relevant.

Tsilhqot’in Nation Aboriginal Rights Case in Canada Supreme Court Today — William v. R.

Matthew L.M. Fletcher

Here are the materials.

Briefs/factums here.

News coverage here.

New Brunswick Fracking Protests: Frontline of a Democratic Fight

Peter Scott Vicaire2 Comments

Click here for a great article from Martin Lukacs.  “Images of burning cars and narratives about Canadian natives breaking the law obscure the real story about the Mi’kmaq people’s opposition to shale gas exploration.”

Updated Supreme Court of Canada Aboriginal Law Stats

Peter Scott Vicaire

Here’s the updated stats after the recent decision, R. v. Ipeelee, 2012 SCC 13, where the court revisited Gladue and found in favor of aboriginal interests 6-1.  Individual percentages in favor of aboriginal interests now range from 29.1% (LeBel – 7/24) to 57.1% (Cromwell – 4/7).  

https://turtletalk.blog/wp-content/uploads/2009/04/supreme-court-of-canada-report-card-2012.pdf

SCT of Canada Orders Lower Courts to Consider Aboriginal History When Sentencing Natives

Matthew L.M. Fletcher

Here is the opinion in R. v. Ipeelee.

An excerpt from the Court’s syllabus:

When sentencing an Aboriginal offender, a judge must consider the factors outlined in R. v. Gladue, [1999] 1 S.C.R. 688:  (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.  Systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness.  Failing to take these circumstances into account would violate the fundamental principle of sentencing— that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.  The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.  The principles from Gladue are entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.  Section 718.2(e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples.

News coverage here.

H/t to RK.

 

Lax Kw’alaams Indian Band v. Canada – Something Smells Fishy About This Decision…

Peter Scott Vicaire2 Comments

In Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, the Supreme Court of Canada recently (Nov. 10) dealt a serious blow to any tribes wanting to engage in commercial fisheries within their traditional territories.   The unanimous, 7 judge court (McLachlin, Binnie, LeBel, Deschamps, Abella, Charron, and Rothstein) rejected a claim to possession (under s. 35) of an aboriginal right to fish commercially all species in their traditional territories.  Before contact with the newcomers, the Lax Kw’alaams Indian Band fished off their ancestral coast for thousands of years, regularly traded fish grease extracted from the eulachon, as well engaged in occassional trade in other fish and fish products.  As such, the Lax Kw’alaams sought a declaration as to their aboriginal rights to engage in commercial fishing.  The trial judge and later, the British Columbia Court of Appeal, rejected their claim.  The Supreme Court followed suit – and Justice Binnie (shouldn’t he be gone by now?), writing for the court, agreed with the lower courts.

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No Axes To the Taxes – Marcinyshyn v. R.

Peter Scott Vicaire

Marcinyshyn v. R was recently handed down by the Tax Court of Canada – and is really just more of the same.  The aboriginal appellants were denied tax relief because of the failed “connecting factors” test, notwithstanding their argument that the test has become obsolete as a result of the Supreme Court’s recent decision in Bastien and Dubé.

Updated Canadian Supreme Court Justice Stats

Peter Scott Vicaire1 Comment

Here’s the updated stats  for the Supreme Court of Canada’s justices after the recent R. v. Bastien; R. v. Dubé  and Peavine Metis Settlement v. Alberta decisions.  They now range from 27.2% (LeBel)  all the way to 50% (Rothstein and Cromwell) in favor of aboriginal interests. 

Take that, Justices Roberts and Alito – still both at 0% ~ 0/7 and 0/6, respectively.   The complete U.S. Supreme Court stats can be found here.

Supreme Court of Canada Affirms Aboriginal Status Rights in Two Tax Cases

Peter Scott Vicaire

On July 22nd, (I know it’s late, but I just moved!) the Supreme Court of Canada upheld appeals in favor of aboriginal interests in two important cases, Bastien Estate v. Canada and Dubé v. R.  Here’s an interesting and informative (pre-decision) commentary by Katherine MacLellan on Indian Act s. 87 taxation.

In Bastien Estate, the Supreme Court ruled that Roland Bastien, (now deceased for six years) a Huron man who took out term deposits at a credit union did not have to pay tax on the interest he earned on his investment.  For 27 years, Bastien ran a small handbeaded moccasin business on the Wendake Reserve (near Quebec City), where he also invested some of the income from the operation and sale of his business in term deposits with a caisse populaire (a credit union), also on his reserve.  Bastien believed the income was exempt from taxation under s. 87 of the Indian Act.

However, the Canada Revenue Agency disagreed, and added the term deposit investment income to his income for 2001.  His estate representatives appealed the decision but lost at both the Tax Court of Canada and the Federal Court of Appeal.  Both lower courts ruled that the caisse populaire generated its revenues outside the reserve, not on it, and therefore the interest paid to Mr. Bastien was not exempt from taxation.

But the Supreme Court rejected that opinion and found that the lower courts gave too much weight to the fact that the credit union produced its revenues in the “commercial mainstream” off the reserve.

The companion case to Bastien, Dubé v. The Queen, involved Alexandre Dubé, an Attikamek aboriginal, who was also found to be exempt from tax on interest he earned on term deposits with an on-reserve credit union.

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An Aboriginal Justice On The Supreme Court Of Canada? Why?

Peter Scott Vicaire3 Comments

Soon, there will be two vacancies on the Supreme Court of Canada, as Justice Charron is retiring on August 30 and Justice Binnie will leave when a replacement is named.   As such, the Indigenous Bar Association recently asked Prime Minister Stephen Harper to consider appointing an aboriginal to the Supreme Court.  Of course, there has been some opposition to appointing someone because of their race to the highest court in Canada.  In fact, former Supreme Court Justice John Major (who found in favor of aboriginal interests only 20.6% – 6/29 times — one of the lowest ever) expressed his disdain for such a racially-based appointment.  Oddly enough, I happen to agree with Mr. Major, but for wildly different reasoning.

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