LibGuides: Aboriginal Law and Indigenous Laws: Case Law

Case Law

In common law systems, cases heard before courts set precedent for further judgements and decisions. Reports of cases further our understanding of the law. Key Aboriginal Law cases set out frameworks for how the courts hear and decide cases concerning Indigenous peoples and communities. Statutes cannot be drafted to consider every eventuality in life. For this reason, the courts must apply the law to specific situations and their judgments are reported in case reporters. Not all cases that go to court are reported. What does get reported are cases that further our understanding of the law.

Cases are compiled together based of jurisdiction (e.g., Ontario, Nova Scotia, federal), by court (e.g., Supreme Court, Appeal Court), and by topic (e.g., business law, construction law, tax law). The citation includes the name of the parties, the year of the decision, the reporter information, and the court jurisdiction and level.

You can use a free database like CanLII to locate cases, or professional databases like Lexis+ and WestlawNext Canada, which require a password (Dal law students only). The law library also has an extensive print collection of case reporters. Canadian, American, UK, and Commonwealth case reporters are in the Primary Sources Room on the main floor (2nd floor) of the library. Case reporters on international law are shelved in the stacks on the first floor and can be located by call number.

Key Cases

Some important cases in the development of Aboriginal Law in the land now referred to as Canada. This is not a comprehensive list.

Brown v Canada (Attorney General), 2017 ONSC 251
A class action lawsuit that found Canada liable for the class members’ loss of Aboriginal identity due to the Sixties Scoop, where Aboriginal children were taken from their families and communities and placed in non-Aboriginal foster care facilities or homes. The Court found that Canada had not fulfilled their duty to consult.
Calder v British Columbia (Attorney General), [1973] SCR 313, 34 DLR (3d) 145
Members of the Nishga Nation sued for declaration that their Aboriginal title to their territory was not lawfully extinguished. The claim ultimately failed, and the court was split on the issue of Aboriginal title.
Daniels v Canada (Minister of Indian Affairs and Northern Development), 2016 SCC 12
Held that “Indians” in s. 91(24) includes Métis and non-status Indians.
Delgamuukw v British Columbia (1997), [1997] 3 SCR 1010, 153 DLR (4th) 193
The Gitksan and Wet’suwet’en asked the court for recognition of their interest in 58,000 square kilometres of land in British Columbia. The Supreme Court of Canada restated that Aboriginal title is a sui generis interest in land and outlined three general features of Aboriginal title: 1) Aboriginal land can only be alienated to the Crown in the right of Canada (at para 113); 2) Aboriginal title arises from prior occupation (at paras 113, 149, 242, and 255); and 3) Aboriginal title is held communally (at para 115).
Guerin v The Queen, [1984] 2 SCR 335
Established the legal precedent that the Government of Canada can owe a fiduciary duty to Indigenous peoples.
Lovelace v Canada, 36 UN GOAR Supp (No 40) Annex XVIII, UN Doc A/36/40 (1981)
A Maliseet woman appealed to the International Human Rights Committeee after she lost her rights and status under section 12(b) of the Indian Act by marrying a non-Indian. She claimed the Act was discriminatory on the grounds of sex and violated the International Covenant on Civil and Political Rights. The Committee found that Canada had breached article 27 of the Covenant.
R v Marshall (1999), [1999] 3 SCR 456, 177 DLR (4th) 513
Donald Marshall, a Mi’kmaq, was charged with offences related to fishing without a commercial license. He argued that he had a treaty right to fish and sell the catches under the 1760 treaty. The Supreme Court of Canada ruled that the Mi’kmaq had a treaty right to fish and sell the fish, but it was limited to a “moderate livelihood.”
R v Bernard (and R v Marshall) (2005), [2005] 2 SCR 220, 255 DLR (4th) 1
Two logging cases, from New Brunswick and Nova Scotia respectively, were heard together by the Supreme Court of Canada. The loggers argued that they had the right to harvest resources and sell them and that they had existing Aboriginal title in the land logged. The Court ruled that the Mi’kmaq had no treaty right to sell logs and upheld the trial decisions that there was not enough evidence of occupation to establish Aboriginal title.
R v Gladue (1999), [1999] 1 SCR 688, 171 DLR (4th) 385
An Indigenous woman was charged for murder at trial. The Supreme Court of Canada took the opportunity on appeal to clarify proper sentencing principles for Indigenous individuals under s 718(e) of the Criminal Code, and its purpose in ameliorating the overrepresentation of Indigenous people in the criminal justice system and considering the cultural and societal circumstances they face due to colonization.
R v Ipeelee, 2012 SCC 13
Two Indigenous men (Inuk and Ross River Dena Council Band) were charged with breaching their long-term supervisions orders. The Supreme Court of Canada held that the Glaude principles for interpreting s 718.2(e) of the Criminal Code apply to all offences, including breaches of long-term supervision orders.
R v Sappier; R v Gray, 2006 SCC 54
The respondents, Maliseet and Mi’kmaq respectively, were charged with harvesting timber from Crown lands, which were traditional harvesting areas for their communities. The Supreme Court of Canada ruled that both accused had the Aboriginal right to harvest logs, but only for domestic use and personal purposes.
R v Simon (1985), [1985] 2 SCR 387, 24 DLR (4th) 385
A Mi’kmaq man was stopped on an off-reserve public road carrying a rifle and shotgun pellets. He was charged with the illegal possession of hunting equipment during closed season. The appellant argued that he was entitled to carry the weapon and ammunition pursuant to his hunting rights in the treaty of 1752, since he was on his way to a hunting area. The Supreme Court of Canada found that the treaty also protected his rights to carry hunting equipment for the purpose of hunting.
R v Sparrow (1990), [1990] 1 SCR 1075, 70 DLR (4th) 385
A member of the Musqeum First Nation was charged with violating the Fisheries Act while fishing in a traditional fishing area. The Supreme Court of Canada held that First Nations have an Aboriginal right to fish for food, social, and ceremonial purposes and laid out a framework for interpreting section 35 of the Constitution Act. The Court also found a law which infringed an Aboriginal right was not valid if it did not have a valid legislative objective or if it breached the Crown’s fiduciary duty. The case was the first judicial consideration of the meaning of section 35.
R v Van der Peet (1996), [1996] 2 SCR 507, 137 DLR (4th) 289
A Sto:lo First Nation member was convicted of selling fish without a license. The Supreme Court of Canada established ten factors in determining whether the practices, traditions, or customs were “integral to the distinctive cultures of Aboriginal peoples.”
Tsilhqot’in Nation v British Columbia (Xeni Gwet’in First Nations v British Columbia), 2014 SCC 44
The Xeni Gwet’in First Nation, a part of Tsilhqot’in Nation, went to court to assert its Aboriginal title over its traditional territories. The Supreme Court of Canada confirmed Aboriginal title to about 5% of their traditional lands, and that further development of that land would require the nation’s consent or a strong justification for any infringement. It also set out a test for Aboriginal title.

Case Reporters

Canadian Native Law Bulletin
Call Number: DAL Dunn Law Library Reports 2nd floor Aisle 14
Publication Date: 1977
This first issue of the Canadian Native Law Bulletin marks the beginning of a series which its editors and publishers hoped would assist in promoting a greater understanding of legal issues relating particularly to Canada’s Native people(s) and which will be of immediate help to Native organizations, their legal advisors, academics, and others interested in a practical or theoretical way in the relationship between Native people and Canadian society as a whole.
Canadian Native Law Reporter by Native Law Centre
Call Number: DAL Dunn Law Library Reports 2nd floor Aisle 14 and Serials
Publication Date: 1979
A continuation of the Canadian Native Law Bulletin. Reports all important and noteworthy Aboriginal law cases from all Canadian courts and jurisdictions. Published quarterly since 1979.
Canadian Native Law Cases by Native Law Centre
Call Number: DAL Dunn Law Library Reports 2nd floor Aisle 14 v.1(1763-1869)-v.9(1976-1978)
This multi-volume work is a comprehensive collection of reported Canadian court decisions, along with a selection of previously unreported cases, which deal with the affairs of Canada’s original peoples: Indians, Inuit and Métis. It covers the period 1763–1978, beginning with the cession of French Canada and ending with the appearance in 1979 of the Canadian Law Reporter. The collection is limited to cases decided by Canadian courts or by the Privy Council on appeal from Canada. A Subject Index is included in each volume.

Case Law Databases

CanLII
Run by the Canadian Legal Information Institute, this database contains legislation, case law, and commentary on Canadian law.
Lexis+
A database published by Lexis containing caselaw, noting up tools, and related resources. Password restricted (law students and practitioners only).
Westlaw Edge
A database published by Thomson Reuters containing caselaw, noting up tools, and related resources. Password restricted (law students and practitioners only).
NexisUni
A stripped down and publicly available version of Lexis Advance. A database published by Lexis containing caselaw and related resources
vLex Justis
Justis gives you access to hundreds of thousands of case judgments and legislation from common law jurisdictions around the world.
JusMundi (International Law)
A database containing treaties, cases, and related publications for International Law and arbitration.
Law Library Microform Consortium Digital
LLMC is a non-profit cooperative of libraries dedicated to the twin goals of, preserving legal titles and government documents, while making copies inexpensively available digitally through its on-line service LLMC-Digital. LLMC provides libraries with a reliable and budget-friendly source of digital replacement when their older, physically deteriorating books became too burdensome to store given diminished use. While aiding libraries in their preservation and space recovery programs, it also provides an economical way to complete retrospective collections.