Selected British and Canadian Legislative Events and Legal Rulings affecting Indigenous Peoples:
- 1763 With the Royal Proclamation, King George III reserves the land in North America west of the Appalachian mountains for Indigenous peoples, and states that settlers cannot settle or purchase such land except through the “Crown” (the British government).
- 1867 Constitution Act, 1867. In section 91 (24) of Canada’s founding document, “Indians and land reserved for Indians” is just one item in a long list of things over which the federal government of Canada takes control. That is the only mention of Indigenous people. Federal and provincial governments are now “the Crown” in the legal sense of the term.
- 1870 Manitoba Act. In Manitoba’s founding documents, based on Métis proposals, there are provisions for French language rights, Catholic education rights, and land for Métis.
- 1871 The first of the “Numbered Treaties” begins to clear the Plains for the railway and for White settlement.
- 1876 The Indian Act (An Act to Amend and Consolidate the Laws Respecting Indians) is passed to regulate Status Indians on reserve.
- 1886 The Indian Act is amended to permit the government to compel attendance at residential schools.
- 1930 An additional Constitution Act confirms previous agreements giving British Columbia, Alberta, Saskatchewan and Manitoba resource and land rights similar to those of the other provinces. Indigenous rights over resources and lands are not contemplated. Indigenous people still have the right to pursue traditional activities on unoccupied Crown lands.
- 1939 In Reference re. Eskimos, the Supreme Court rules that Inuit people are “Indians” in the sense of the Constitution Act of 1867. They do not come under the jurisdiction of the Indian Act, however.
- 1951 Major amendments to the Indian Act restore various civil liberties to Status Indians.
- 1960 An Act to Amend the Canada Elections Act makes it possible for Status Indians to vote as Canadian citizens without losing their Indian Status.
- 1973 Calder v. BC The Supreme Court rules that Aboriginal Title is valid in Canadian law. Aboriginal Title is inherent, existing before European contact and the Royal Proclamation of 1763. The Supreme Court does not say which Indigenous groups have Title to which lands, what Title entails, or whether Aboriginal Title has ever been extinguished.
- 1975 The James Bay and Northern Quebec Agreement becomes the first modern treaty, securing some degree of self-government for the Cree and Inuit involved.
- 1982 Section 35 (1-4) of the repatriated Constitution Act guarantees Aboriginal rights and Treaty rights, any rights resulting from land claims, and equal Aboriginal rights for men and women. There is no detail as to what Aboriginal and Treaty rights entail.
- 1984 R. v. Guerin In this case, the Supreme Court rules that the Crown has a fiduciary duty to ensure that reserve lands are used for the benefit of the Band.
1990 R. v. Sparrow In the context of Sparrow’s claim of an Aboriginal right to fish in the Fraser River, the Supreme Court orders that section 35 of the Constitution Act, 1982, which lacks any detail as to what Aboriginal and Treaty rights entail, be interpreted generously.
1996 In R. v. Van der Peet, the Supreme Court rules that an Aboriginal right must be a practice, custom or tradition integral to pre-contact culture.
1997 In R. v. Delgamuukw, the Supreme Court rules that First Nations who can prove exclusive use of lands prior to European contact have Aboriginal Title to those lands. Aboriginal Title is an exclusive right to use and occupation. It is a collective right that must safeguard the value of the land for future generations. The ruling also affirmed the relevance of oral history. Note that the Crown can infringe on Aboriginal Title in some circumstances, with compensation.
1999 In R. v. Marshall, the Supreme Court rules that the eighteenth century Peace and Friendship Treaties (between Maritime First Nations and Britain) protect the right of Maritime First Nations to earn a moderate livelihood through fishing, hunting, and gathering.
1999 The new Territory of Nunavut is created, following land claims negotiations with the Inuit of that area.
2003 In R. vs. Powley, a dispute over hunting rights, the Supreme Court rules that a Métis is someone who self-identifies as such, who descends from a Métis community, and who is accepted by an historic Métis community.
2004 In R. v. Haida Nation, the Supreme Court rules that the Crown must consult and accommodate Indigenous peoples regarding land use, even if Aboriginal Title to that land has not yet been proven.
2007 The UN Declaration on the Rights of Indigenous People affirms various Indigenus rights. These rights include the right to self-determination and the need for governments to obtain free, prior, and informed consent from Indigenous peoples before using their traditional lands and resources. Canada tentatively adopted this Declaration in 2010 and officially adopted it in 2016. Canada has not yet integrated its terms into Canadian law.
2014 The Tsilhqot’in become the first First Nation to have their Aboriginal Title to traditional lands recognized by the Supreme Court of Canada in R. v. Tsilhqot’in Nation.
2014 The Indian Act is amended so that the government cannot compel Status Indian children to attend school.
2016 In Daniels v. Canada, the Supreme Court rules that Métis and non-Status Indians are “Indians” in the sense of the Constitution Act of 1867, and that the Crown has a fiduciary duty to protect their interests. The Indian Act does not apply to Métis or to non-Status Indians.
- Sources: The Canadian Encyclopedia (www.thecanadianencyclopedia.ca/en); notes from Professor Hugo Choquette’s Aboriginal Law (Law 202/702), Queen’s University, 2019; Courchene (2018); and the legal documents themselves as available online. ↵