The main rulings and events that have to be taken into account in the negotiations
1973 – 1982 –
1985 – 1990 –
1994 – 1996 –
1997 – 1998 –
1999 – 2000 –
2002
1973 – Calder ruling
The Supreme Court of Canada confirms the existence of aboriginal rights on a territory based on the fact that aboriginal people occupied and used the territory prior to the arrival of the Europeans.
The Federal Government adopts the first policy on the territorial claims of the aboriginal peoples, which subsequently will be amended on several occasions.
1973 – Malouf ruling
Québec’s Superior Court recognizes the rights of the Crees and the Inuit, orders the suspension of work on hydroelectric project sites, which will pave the way for negotiations and the conclusion, in 1975, of the James Bay and Northern Québec Agreement. In 1978, the Northeastern Québec Agreement will be signed with the Naskapis.
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1982
The Canadian Constitution recognizes and confirms the existing aboriginal or treaty rights of the aboriginal peoples. Henceforth, these rights can no longer be extinguished unilaterally.
This does not imply that each aboriginal nation in Canada has aboriginal rights. These rights must either be agreed upon in a negotiated agreement or be recognized by a Court.
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1985
The Québec National Assembly passes a resolution recognizing in particular that the aboriginal nations of Québec are distinct nations that are entitled to self-government, and subscribes to the approach seeking to better recognize and clarify the rights of the aboriginal peoples based on the historical legitimacy and the importance of establishing harmonious relations.
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1990 – Sparrow ruling
An aboriginal person of British Columbia is prosecuted for having used a prohibited fishing net. This individual asserts that he is exercising an aboriginal right to engage in subsistence fishing protected under the Canadian Constitution. The Court decides in favor of the defendant. The Court also rules that an aboriginal right is not an absolute right and that governments may encroach upon this right if they show a compelling and substantial legislative objective while respecting their fiduciary relationship towards the aboriginal people. The result of this decision is, on the one hand, that the aboriginal peoples have priority when it comes to hunting, fishing, trapping or gathering for food purposes and on the other hand, that governments can regulate these activities for wildlife conservation and public safety reasons. Depending on the circumstances and characteristics of the aboriginal right in question, governments must also consult the aboriginal peoples and put in place compensation measures when aboriginal rights are affected.
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1994 – Québec’s offer to the Attikameks and the Innu
Québec makes a global settlement offer to the Attikameks and the Innu, the two nations holding comprehensive territorial negotiations with Québec. This offer includes territories that are to become the property of the aboriginal peoples, shared management territories and protected territories. This offer is rejected.
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1996 – Adams and Côté rulings
Still in reference to aboriginal rights, the Supreme Court of Canada acquits a Mohawk and an Algonquin. One had been accused of fishing without a licence and the other of having harvested fish without a licence while teaching traditional fishing techniques to young people.
1996 – Report of the Royal Commission on Aboriginal Peoples
After having heard all the experts, all the persons and all the groups that wanted to voice their opinions, the Commission issued several recommendations, in particular that of enjoining the parties to settle territorial claims, to increase the land base of aboriginal communities and to improve the living conditions of those communities.
1996 – Van Der Peet ruling
The Supreme Court of Canada gives the definition of an aboriginal right protected under the Canadian Constitution. It involves an activity that is an element of a custom, a practice or a tradition and that, prior to contact with the Europeans, was an integral part of the distinctive culture of the aboriginal people in question.
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1997 – Delgamuukw ruling
Under this ruling, it is possible that aboriginal nations can hold aboriginal title, a subcategory of aboriginal rights. This title is defined as being a collective land right that grants an exclusive right to use and occupy the territory and that may serve for different activities which are not limited to hunting, fishing and trapping. As aboriginal title is an aboriginal right, it does not confer an absolute right, and governments can encroach upon it if they show a compelling and substantial legislative objective while respecting their fiduciary relationship. Title ensues from the exclusive occupation, prior to European sovereignty, of a territory by an aboriginal people and occupied continuously ever since.
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1998 – Nisga’a treaty
For the first time since the James Bay and Northern Québec Agreement and the Northeastern Québec Agreement, it is established in a treaty signed in a province that the aboriginal people, the Nisga’a, shall become the owners of lands having a surface area of 1 992 km2 and of underground resources. The treaty also contains provisions related to historical sites, forestry resources, roads, fishing, wildlife, environmental protection, self-government, taxation and financial arrangements as well as financial compensation. On the subject of self-government, the Nisga’a will be able to pass laws on citizenship, language, culture, and education as well as in several other fields. In fields identified by name, Nisga’a laws will have pre-eminence over provincial or federal laws in the event of conflicts.
1998 – Orientations of the Government of Québec in aboriginal matters
In accordance with its new orientations stated in the document entitled Partnership, Development, Achievements, the Government of Québec acquires tools to help ensure that the 1985 resolution of the National Assembly can become a reality. Comprehensive territorial negotiations are accelerated.
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1999 – Marshall ruling
The Supreme Court of Canada establishes, under a treaty signed in the 18th century, that the Micmacs of Nova Scotia can fish without being required to comply with federal regulations. However, this treaty grants the right to fish to acquire the conveniences of life, but does not extend to the accumulation of unlimited wealth.
1999 – Sundown ruling
An Indian of Saskatchewan, a beneficiary of Treaty No. 6, claims that he needs a camp when he hunts, whether for shelter, to smoke fish and game, or to skin furbearing animals. The Supreme Court decides that the hunting camp is reasonably incidental to the right of the aboriginal people in question to take part in traditional hunting expeditions. The Court adds that the building of camps could be regulated for reasons related to the preservation of the habitat, biodiversity or the quality of the water found in the water table, lakes, rivers and streams, the conservation of arable land, and the prevention of erosion.
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2000 – Joint approach
The Joint Approach is agreed to at the negotiating table of the Mamuitun tribal council bringing together the Innu nations of Mashteuiatsh, Essipit and Betsiamites. It is made public on July 6, 2000. The Joint Approach sets the main parameters on the basis of which negotiations will continue with a goal to reaching an agreement-in-principle. Later, namely in November, the Innu community of Natashquan adheres to the Joint Approach and joins this negotiating table.
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2002 – Taku River Tlingit First Nation and Haida Nation rulings
The Court of Appeal of British Columbia decides that the province must consult the aboriginal people when a project to exploit natural resources is likely to affect aboriginal rights which they have formally claimed. At the time of a consultation, the province must endeavor to find arrangements to reconcile the development activities with aboriginal claims. An appeal of these decisions has been lodged with the Supreme Court of Canada.
2002 – Paix des braves
In the wake of the rights recognized in the James Bay and Northern Québec Agreement, this agreement signed between the Government of Québec and the Crees provides, among other things, for the carrying out of the Eastmain-Rupert hydroelectric project. It also allows the cancellation of the legal proceedings instituted by the Crees, in particular in forestry matters, and aims to have the Crees assume Québec’s obligations concerning economic and community development.
2002 – Sanarrutik, a partnership agreement with the Inuit
Through this agreement, Québec and the Inuit agree to accelerate the economic and community development of Northern Québec. The agreement provides for the taking charge by the Inuit of responsibilities in the field of economic and community development, assumed thus far by the Government of Québec within the context of the James Bay and Northern Québec Agreement.
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2004-07-28
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