Canada Case Law

Canada v. Jim Shot Both Sides

Court

Federal Court of Appeal

The Federal Court erred by treating Treaty 7 as unenforceable under an act of state/foreign‑treaty model and by concluding section 35(1) created a new cause of action; historic numbered treaties were enforceable at common law prior to 1982, but limitation statutes apply to treaty claims and, on the facts of this case, the respondent’s claims are time‑barred; accordingly the appeal is allowed and the Federal Court judgment is varied to remove the exception preserving the Treaty Land Entitlement claim.

Source excerpt

• Treaty enforceability
• Treaty land entitlement
• Fiduciary duty
• Honour of the crown
• Act of state doctrine
• Section 35(1)

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Potlotek First Nation v. Canada (Attorney General)

Court

Supreme Court of Nova Scotia

UFCA's motion to intervene was granted because UFCA satisfied CPR 35.10(2): its intervention will not unduly delay the proceedings or cause other serious prejudice, it has a direct and legitimate interest connected to the issues in the pleadings and intervention is in the public interest; the Court's residual discretion to refuse intervention was not engaged.

Source excerpt

• Intervention (cpr 35.10)
• Treaty right to fish
• Moderate livelihood
• Fisheries act regulation
• Section 35(1)
• Public interest

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R. v. Desautel

Court

Supreme Court of Canada

The Supreme Court held that non-Canadian residents can assert s. 35(1) Aboriginal rights where they are modern successors of a people that occupied Canadian territory at contact.

• Aboriginal rights
• Section 35(1)
• Van der peet test
• Continuity of practice
• Duty to consult
• Sovereign incompatibility

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Yahey v. British Columbia

Court

Supreme Court of British Columbia

The court held that daily hearing fees were unconstitutional as applied to Indigenous plaintiffs pursuing s. 35(1) treaty rights at trial, and read the fee rule down accordingly.

• Section 35(1)
• Honour of the crown
• Reconciliation
• Court hearing fees
• Rule 20-5
• Appendix c schedule 1 item 10

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R. v. Desautel

Court

British Columbia Court of Appeal

The Court of Appeal held that s. 35 can protect Aboriginal rights claimed by a non-resident, non-citizen successor community where Van der Peet continuity is proved.

• Section 35(1)
• Aboriginal rights
• Van der peet continuity test
• Sovereign incompatibility
• Incidental mobility right
• Duty to consult

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Mitchell v. M.N.R.

Court

Supreme Court of Canada

La Cour suprême rejette la prétention mohawk à un droit ancestral d’importer des marchandises en franchise de douane pour le commerce.

• Aboriginal rights
• Section 35(1)
• Trade and mobility rights
• Evidentiary standards for oral history
• Sovereign incompatibility
• Customs duties

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