Facts Ratio Analysis Indians set up gaming house Broad-based rights are not Nature/extent of activity: doesn’t without permit (contrary to granted in court frame the right as Criminal Code), claimed right to rights must be narrowly to manage the do this based on First Nations defined. use of their lands, but instead as self-governance right to participate in/regulate gambling on reserves ISSUE: is gambling an Aboriginal right? VdP says integral pre-contact: not enough evidence to prove that gambling was significant. SCC: appeal dismissed, no Aboriginal right to manage/regulate gambling on reserves Tsilhqot’in Nation v BC, 1997 Facts Ratio (unanimous) Analysis BC granted commercial logging license to Aboriginal title is a beneficial interest in Claimed ~5% of land, nothing that land claimed by Tsilhqot’in as traditional land that gives right to decide + benefit overlapped w/ others to make it easier. territory. Sought ban prohibiting logging. from its use; it is collective and there is a Historical proof that established title. duty to preserve for future generations TJ: occupation established through proof (paternalistic? No one else has this duty; Aboriginal title vested communally in ♔ of regular + exclusive use title-holding group. right to waste); can be overridden by in certain instances. *nature of Ab title* BCCA: claim denied through narrower, Province didn’t fulfill justification site-specific test requirements, so their intrusion wasn’t Provides test for Aboriginal title and test ♔ justified. for justify their intrusions. SCC: appeal allowed, Aboriginal title declared + BC breached duty to consult Federalism: paramountcy in favour of Inferences from avail evi = sufficient. fed. Interjurisdictional immunity doesn’t apply in Aboriginal cases.
Facts Ratio Analysis Indians set up gaming house without permit (contrary to Criminal Code), claimed right to do this based on First Nations self-governance ISSUE: is gambling an Aboriginal right? SCC: appeal dismissed, no Aboriginal right to manage/regulate gambling on reserves Broad-based rights are not granted in court rights must be narrowly defined. Nature/extent of activity: doesn’t frame the right as to manage the use of their lands, but instead as right to participate in/regulate gambling on reserves VdP says integral pre-contact: not enough evidence to prove that gambling was significant. Tsilhqot’in Nation v BC, 1997 Facts Ratio (unanimous) Analysis BC granted commercial logging license to land claimed by Tsilhqot’in as traditional territory. Sought ban prohibiting logging. TJ: occupation established through proof of regular + exclusive use BCCA: claim denied through narrower, site-specific test SCC: appeal allowed, Aboriginal title declared + BC breached duty to consult Aboriginal title is a beneficial interest in land that gives right to decide + benefit from its use; it is collective and there is a duty to preserve for future generations (paternalistic? No one else has this duty; right to waste); can be overridden by ♔ in certain instances. *nature of Ab title* Provides test for Aboriginal title and test for ♔ justify their intrusions. Inferences from avail evi = sufficient. Claimed ~5% of land, nothing that overlapped w/ others to make it easier. Historical proof that established title. Aboriginal title vested communally in title-holding group. Province didn’t fulfill justification requirements, so their intrusion wasn’t justified. Federalism: paramountcy in favour of fed. Interjurisdictional immunity doesn’t apply in Aboriginal cases.
ADJUNCT_54_Winter_2018_Lauren_Chancellor.docx