Indigenous Peoples of Canada and Their Rights in the Modern Jurisprudence an Overview カナダ先住民の法的地位と権利：カナダ最高裁判決を踏まえた最近の動向

JOGMEC K Y M C

University of Calgary, Faculty of Law Matthew Warren, Brady Chapman アナリシス Indigenous Peoples of Canada and their Rights in the Modern Jurisprudence An Overview カナダ先住民の法的地位と権利：カナダ最高裁判決を踏まえた最近の動向

はじめに

カナダ国民の約5%はヨーロッパ人が北米大陸に到着する前から定住していた先住民族の出身である。同国の先住民は大きくファーストネーション（First Nations）、イヌイット（Inuit）、メティス（Métis）の三つに分類され、ファーストネーションはカナダ全土に広く分布する一方、イヌイットはカナダ北部に集中、ヨーロッパ系移民とファーストネーションの混血で独自の文化を形成したメティスは、カナダ全土の都市部に集中している。これら先住民の権利をめぐるカナダの法律は、過去30年間で大きく変化し、現代カナダにおいて先住民の権利は社会のさまざまな分野に密接に関連している。さらに、先住民との良好な関係構築はカナダでの事業展開に不可欠な要素であり、天然資源業界も例外ではない。同国では日常的に石油開発事業やパイプライン敷設事業に反対する先住民団体や、その権利をめぐる訴訟がメディアに取り上げられており、先住民との和解はカナダ社会の大きな課題の一つである。本稿では、最近のカナダ最高裁判所の判例も踏まえ、同国における先住民の権利について紹介する。 Part 1では、カナダの先住民とヨーロッパ系移民の歴史的関係を考察し、先住民との歴史的条約の変遷をたどる。北米大陸でイギリスとフランスが覇権を争った18世紀初頭は、ヨーロッパ系移民の数が先住民に対して少なかったこと、ヨーロッパ人同士の覇権争いの過程で先住民と同盟関係を結ぶ必要があったことから、先住民の権利を保障し彼らに土地の割譲を求めない比較的対等な「平和と友好条約」（Peace and Friendship Treaties）が締結された。しかし、イギリスがフランスを排除し西部開拓を推進ぎょろうすると、先住民の狩猟・漁撈権を認めつつも土地の割譲を迫る「番号付き条約」（Numbered Treaties）が締結され、彼らの土地は僅かな「先住民保護区」（Reserve）を除き消滅した。他方、ブリティッシュ・コロンビア州の大部分では、土地の割譲条項を含む「番号付き条約」は締結さひもとれず、彼らの土地所有権は消滅していないとされる。Part 1では、これら歴史的背景を繙きつつ、近年、同国内で締結されている「近代的条約」（Modern Treaties）の概要や、「番号付き条約」の及ぶ範囲でも起こり得る法的課題についても言及する。 Part 2では、ハーパー前首相とトルドー現首相の先住民に関する政策の差を対比し、先住民の権利を取り巻くカナダの政治情勢に焦点を当てる。また、連邦政府の先住民に係る予算の増減から垣間見られる先住民問題の政治的重要性を考察し、加えてトルドー現首相の選挙時の公約であった「先住民の権利に関する国際連合宣言」（United Nations Declaration on the Rights of Indigenous Peoples： UNDRIP）の国内法への反映をめぐる取り組みを分析する。更に、天然資源業界にも影響を及ぼす連邦議会の「法

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案C-69」（Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act）を先住民との和解という視座に立ってどのように理解できるか紹介する。 Part 3では、最近のカナダ最高裁判所の判決を踏まえ、先住民の定義、その権利の種類と権利の範囲、また、権利の侵害、侵害の正当化の可否について法的な解説を行う。先住民の権利をめぐる訴訟では、彼らの権利をどのように定義するか、複数ある先住民の権利のどれに該当するか、権利が侵害されているか、先住民への十分なコンサルテーション（Consultation）が実施されたか、そして仮に権利が侵害されている場合はこの侵害を正当化できるかが争点となる。先住民の権利は、カナダの憲法法典の一つである1982年憲法第35条（s. 35 of the Constitution Act, 1982）に規定されており、それ以降、政府が一方的に先住民の権利を無効にすることは許されない。先住民の権利をめぐる法律は近年急速に整備されており、本稿では主に2000年代以降のカナダ最高裁判所の判決から導かれる準則を紹介する。カナダの先住民の権利をめぐる訴訟は、判決まで数年から十数年を経ることが多く、このため現在も係争中の裁判が数多くある。更に、彼らの権利を明確化する近代的条約の交渉も並行して行われている。今後の判決次第で新たな準則がつくられる可能性がある一方、同国はイングランド法の影響を受けたケースローが重みを持つ国なので、2000年代以降のカナダ最高裁判所の判決が今後の先住民の権利をめぐる議論の枠組みになると思われる。

Introduction

The laws relating to the Indigenous peoples of Canada have evolved significantly in the last three decades, in particular since the entrenchment of Indigenous rights in s. 35 of the Constitution Act, 1982.＊1 The contemporary relevance of Indigenous peoples in Canada cannot be overlooked, as the Parliament of the Canada, the provinces, as well as the Canadian judiciary have progressively reiterated the importance of reconciliation with Indigenous peoples in Canada. The rights of Indigenous peoples are more relevant than ever in Canada, and this is particularly pertinent in the natural resources industry. The purpose of this paper is to provide an overview of the Canadian law relating to the Indigenous peoples in Canada. The paper comprises of 3 parts. Part 1 outlines the modern-day situation of Indigenous peoples in Canada and lays out the historical interaction between European settlers and Indigenous peoples. Part 2 considers the political change in Canada from the start of the Right Honourable Stephen Harper’s administration and transitioning into the Right Honourable Justin Trudeau’s administration. Part 3 examines the development of Canadian case law in regards to Indigenous peoples.

Part 1. Historical Context

The Indigenous peoples of Canada 2016, the Indigenous population grew by 42.5%, which According to Statistics Canada, there were over 1.6 was more than four times the growth rate of non- million Indigenous people in Canada in 2016；this Indigenous populations in Canada. The increase in accounts for 4.9% of the total Canadian population.＊2 Canada’s Indigenous population is expected to continue Canada’s Indigenous population is one of the fastest in the next twenty years, and the number of Indigenous growing populations in Canada. Between 2006 and Canadians is anticipated to exceed 2.5 million.＊3

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Statistics Canada proposes two reasons for the registered under the Indian Act； of these with increase in the rapid population growth of Canada’s registered or treaty status, 4 4.2% lived on a reserve.＊11 Indigenous Peoples： natural growth and self- The number of First Nation individuals is steadily identification.＊4 Firstly, Indigenous Canadians have growing in recent years. 23.8% of the First Nation higher fertility rates than the non-Indigenous groups individuals do not have registered or treaty status, and and their life expectancy is also increasing. In addition, their population grew by 75.1% between 2006 and the Indigenous Canadians have a younger average age 2016. ＊12 than non-Indigenous Canadians. The average age of the Indigenous Canadian population is 32.1, while the （2）Inuit： average age of non-Indigenous Canadians is 40.9.＊5 There are currently almost over 65,000 Inuit Secondly, in light of the socio-economic changes Canadians.＊13 They live predominantly in Canada’s surrounding Canadian Indigenous peoples, more Northern regions, with population centers in Nunavut, Canadians of Indigenous ancestry are identifying Northwest Territories, Quebec, and Newfoundland and themselves as Indigenous. Labrador. Under s. 35 of the Constitution Act, 1982, Canada For the purposes of the Constitution Act, 1867,＊14 recognizes“Indians,” “Inuit,” and“Métis” as the three Inuit is considered“Indians”.＊ 15 Unlike the First categories of Canadian Indigenous peoples. These Nations individuals, however, there is no federal Inuit groups are not defined in the Constitution Act, 1982. registry. The division into the three categories can be About 72.8% of Inuit live in Inuit Nunagat, which is misleading, as there is a great degree of diversity the term used to describe not a particular within each category；the culture and language of administrative region of Canada, but rather the concept Canadian Indigenous peoples varies greatly both of traditional Inuit homeland in Canada. Geographically, between groups and within each group. For instance, Inuit Nunagat comprises of Nunatsiavut（Northern the Indigenous people of Canada are divided into coastal Labrador）, Nunavik（Northern Quebec）, the twelve distinct language families and further divided territory of Nunavut, and the Inuvialuit region of the into more than seventy languages.＊6 Northwest Territories.＊ 16 Inuit form the majority population in Nunavut and predominantly speak （1）First Nations（Indian）： Inuktitut.＊17 There are approximately 980,000 First Nations individuals in Canada today.＊7 In the Constitution Act, （3）Métis： 1982, the term“Indian” is interpreted to include both The Métis are a distinct group of people of mixed （i）the status Indians who are registered under the French-Canadian and First Nation ancestry. They are Indian Act＊8 and（ii）those individuals who do not have descendants of French fur-traders, who intermarried Indian status but self-identify as such and have with various First Nations in the Canadian plains. connection to a reserve community.＊9 Today, the Métis population is present in every While classified as a single category under the province and territory. In 2016, there were about Constitution Act, 1982, Canadian First Nations 590,000 Métis, or 1.7% of the total population.＊ 18 comprise of a diverse group of people both culturally 80.3% of the Métis live in Ontario and the western and linguistically. First Nations individuals inhabit large provinces of Canada（Manitoba, Saskatchewan, Alberta, areas in Canada from the Atlantic, across the Great and British Columbia）.＊19 62.6% or nearly two-thirds of Plains, to the shores of the Pacific. They are mostly the Métis population lived in urban areas in 2016.＊20 concentrated in the western provinces of British Columbia（17.7%）, Alberta（14.0%）, Manitoba（13.4%） As statistics show, the Canadian Indigenous people and Saskatchewan（11.7%）. ＊10 According to the 2016 are integrated into the contemporary Canadian society. census, 76.2% of Canadian First Nation individuals are Their current role in the Canadian society, as well as

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アナリシス the discourse surrounding the Canadian Indigenous Vikings settled shortly in the early 11th century, but people must be viewed in the historical context. In the retreated to Greenland afterwards, maintaining an next section, the historical development of Canada in occasional contact with North America as late as the relation to the Indigenous people is examined. 14th century.＊25 Afterwards, contact ceased until John Cabot’s journey in 1497. Indigenous People in the History of Canada To understand the contemporary discourse of European Contact to the Treaty of Niagara Canadian Indigenous people and their rights in modern- Christopher Columbus reached the Bahamas in 1492. day Canada, an examination of Canada’s history is A few years later, in 1497, John Cabot sailed from necessary. This section examines the major milestones Bristol, England and reached Newfoundland. In 1534, of historical events. Jacques Cartier sailed from St. Malo in Brittany, France and reached Gaspé, located in Quebec. The Before Contact French started the colony of New France, with the Indigenous people maintain that their ancestors have establishment of Quebec City in 1608 by Samuel de lived in Canada since time immemorial.＊21 The earliest Champlain. day of arrival of humans to the Americas is disputed The French and the English colonies in North amongst archaeologists, but most seem to agree that America expanded, and eventually they fought several there were several waves of immigration, and that the wars. During the War of the Spanish Succession（1702- first inhabitants of the Americas arrived by various 1713）, the English conquered the French colony of routes from Siberia to Alaska after the ice ages. Acadia（present-day Nova Scotia）, while the French Archaeologists speculate that about 13,000 years retained the islands in the Atlantic, including Ile Royal ago, Paleo-Indians arrived from Asia after the last ice （Cape Breton Island）, Ile St. Jean（Prince Edward age, following the retreat of glaciers due to a warmer Island）and present-day New Brunswick. climate.＊22 Around 4,000 years ago, the Tuniit（Paleo- Both the French and the English made alliances with Eskimos）crossed the Bering Strait from northern Asia the First Nations. The British made numerous treaties and spread across from Alaska to Newfoundland and with the Mi’kmaq, the Maliseet and the Passamaquoddy Labrador. The Tuniit were replaced approximately nations between 1725 and 1779. The first of such 1,000 years ago by the Thule, a new group from Peace and Friendship Treaties was the Treaty of 17 2 5 Alaska that became the ancestors of the modern-day （Dummer’s Treaty）, signed in 1725 between the Inuit.＊23 British Governor William Dummer and the Canadian Not much is known of the pre-contact Canada due to Indigenous peoples. Unlike the later Numbered the lack of written records. However, archaeological Treaties in Western Canada, these Peace and evidences suggest that the ancestors of the Canadian Friendship Treaties in Atlantic Canada were about Indigenous peoples were connected with the alliances and commercial relationships and did not Mesoamerican cultures through a vast and intricate involve the surrender of the land. network of trade.＊24 The defeat of the French in North America at the In the 10th century to the 11th century, the Vikings end of the Seven Years’ War in 1760 ended the conflict arrived in the eastern parts of Canada. The Vikings between the British and the French, as well as discovered Iceland in 860, Greenland in 980, and a between their respective Indigenous allies. At the group of Vikings under Leif Ericson recorded in their Treaty of Paris in 1763, the former French colonies in saga of the discovery of Vinland. The“Saga of Eric the North America were dismantled and annexed by the Red” and the“Saga of Greenland” recount of Vinland, British and the Spanish. The British sought stability Helluland, and Markland. It is believed that Helluland is and improved governance in their newly acquired Baffin Island, Markland is Labrador, and Vinland is an territories in North America. In order to alleviate the area between Newfoundland and New Brunswick. The nascent conflict between the settlers and the

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Indigenous peoples, the British issued the Royal there was not much tension over these rights. Proclamation of 1763. In the Royal Proclamation of However, by 1850, the increasing European 17 6 3, the land west of the Appalachian Mountains was settlements created conflicts between the First declared to belong exclusively to the Crown for the use Nations and the European settlers. The Crown’s by the Indigenous peoples. No European was allowed to representatives verbally agreed to these rights, settle without the permission from the Crown. but no written terms were included in the Following the Royal Proclamation of 1763, the treaties before 1850.＊26 British concluded the Treaty of Niagara in 1764 with （iii）In some of the early treaties, a term was provided twenty-four First Nations. The Treaty of Niagara that allowed members of the First Nations to established the definition of the“Indian Country” for reserve a specific tract of land for their exclusive the British. The Crown claimed sovereignty on the use. By 1850, it was understood that all treaties Indian Country, but also declared that the land would include such reserve lands.＊27 belonged to the First Nations that occupied them. The It is said that the underlying motive for the British then started to formally transfer the land from surrender of land in the Robinson Treaties was the the First Nations to the Crown, which was resisted by mining interests.＊28 While fur trade was the dominant various First Nations. interest in the region, by the early 19th century, it The tradition of concluding alliances through treaties became known that the regions around the Great continued. In the Western Great Lakes in the border Lakes had mineral deposits such as copper. The mining region of the USA and the British North America, the lobby influenced the government policy regarding the British concluded several treaties with the Iroquois treatment of land, and the Robinson Treaties became Confederacy. As a result, during the War of 1812 the harbinger of the Numbered Treaties in the west. between the USA and Britain, many First Nations signatories fought for the British against the Western Expansion and Numbered Treaties Americans. Canada became a Dominion in 1867, and although it In the 1850s, the British concluded the Robinson was still a British colony, it attained self-governance Treaties, which would later become a model for the with its own elected House of Commons and the Numbered Treaties in Western Canada. These appointed Senate. Between 1871 and 1821, Canada Robinson Treaties were much more favorable to concluded the Numbered Treaties. The eleven European settlers than the previous Peace and Numbered Treaties cover a large tract of land in Friendship Treaties. The Robinson Treaties included Northern Ontario；all of the western provinces of more aggressive terms that foreshadowed the Manitoba, Saskatchewan, and Alberta； parts of Yukon subsequent westward expansion. The three major Territory, Northwest Territory and British Columbia. characteristics of the Robinson Treaties are as follows： In these treaties, the First Nations gave up land, in （i）The Robinson Treaties involved a single payment exchange for annuity payments, ammunition, clothing, of a sum of money for the purchase of land, or in reserve land, farming equipment and animals, and the later treaties, payment of annuities over a period right to hunt and fish. of time. As will be discussed in Part 3, the Indigenous （ii）The Indigenous peoples expressed concerns that peoples under the treaties have treaty rights that stem their rights to occupy the land and hunt and fish from their respective signed treaties. The provinces of on the land would be adversely affected by the Manitoba, Saskatchewan, and Alberta are all fully surrender of the land. In early treaties such as covered by the Numbered Treaties. On the other hand, Crawford（1783）, McKee（1790）, or Lake most of British Columbia did not fall under any Simcoe（1798）, it was understood that these Numbered Treaties, and many First Nations did not rights would be preserved for the First Nations. surrender their land. For this reason, unlike the three The initial European settlement was slow, and western provinces, British Columbia has unresolved

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Source：Indigenous and Northern Affairs Canada website： http://www.aadnc-aandc.gc.ca/

図1 Map of Pre-1975 Treaties

land title issues. complexity and the lengthy duration of settling Indigenous rights and titles. Modern Treaties Unlike the brief historical treaties, each modern Since 1975, Canada concluded the modern treaties. treaty is detailed and addresses a broad range of These modern treaties are classified into either issues. For instance, the Nisga’a Final Agreement Comprehensive Land Claims Agreements, where there signed in 1999 is over 250 pages long with numerous is no historical treaty or other measures that address amendments and side agreements. The Nisga’a Final the issues of aboriginal rights and title, and Self- Agreement addresses wide-ranging issues including Governing Agreements, which enable Indigenous territorial extent, land title, forest resources, access, people to attain a degree of autonomy. In 1975, the roads and rights of way, fishery, wildlife and migratory first modern treaty James Bay and Northern Quebec birds, environmental assessment and protection, self- Agreement was signed. To date, Canada has signed 15 governance, administration of justice, and taxation.＊30 comprehensive claims with Indigenous peoples of Canada.＊29 There are numerous agreements currently Treaty Land Entitlement（TLE） under negotiation. The existence of the numerous In areas where First Nations surrendered land under outstanding negotiations in process reflects the the Numbered Treaties, reserves were created.

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Source：Indigenous and Northern Affairs Canada website：http://www.aadnc-aandc.gc.ca/.

図2 Map of Modern Treaties and Self-Government Agreements

However, some promises of a reserve were not fulfilled. Summary Under Treaty Land Entitlement（TLE）, Indigenous As this survey shows, the history of Canada’s groups can file a TLE claim with the federal relationship with Indigenous peoples is dynamic. The government. Once such filing is complete, land or historical struggle that existed even prior to the money can be awarded to Indigenous groups that did establishment of the Dominion of Canada between the not see their promise fulfilled. Indigenous groups can settlers and Indigenous peoples, in many ways, mirrors then buy land from federal, provincial, territorial, or some of the current conflicts found between Canada private land, and annex it to their reserve. Currently, and Indigenous peoples. Understanding the historical about 90% of the TLE transactions take place in progression of the relationship between Canada and Manitoba and Saskachewan.＊31 the Indigenous peoples is vital to understand the approach Canada may take moving forward.

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Part 2. Political Context

Canada’s future is intertwined with Canada’s constitutional and parliamentary framework.＊ 36 Indigenous peoples. However, the significance of the Ultimately, critics argue that the government’s relationship between the Canadian government and endorsement was insufficient, since after the Indigenous peoples to inform Canadian policy and endorsement the government did not take any program development is not static； the relationship substantial steps to integrate the document within has and will continue to fluctuate depending on what Canada.＊37 political party is in power in Canada at a given time. Critics also point to the Harper government’s failure To understand how Canada’s relationship with to adequately provide funding for First Nation Indigenous peoples may impact industry in Canada, it programs to show that the government failed is essential to understand Canada’s recent and current regarding Indigenous reconciliation. An example of the political climate surrounding the topic. government’s failure can be observed through the government’s funding of First Nations’ education. In Harper（2006-2015）： A Tense Legacy their 2012 budget, the Harper government set aside The Right Honourable Stephen Harper served as 275 million Canadian dollars over three years for Canada’s Prime Minister from February 6, 2006 to educational infrastructure development and literacy November 4, 2015. Two years after coming into power, programming for First Nations.＊38 The Assembly of Prime Minister Harper made a formal apology on First Nations, a national organization that advocates on behalf of the Government of Canada to all Indigenous behalf of First Nations, criticized this funding amount as people who were victims of Canadian Indian residential inadequate.＊39 In response, the government increased schools.＊ 32 Generally, Harper’s apology was well- the amount of funding the next fiscal year to 1.9 billion received by Indigenous and non-Indigenous Canadians Canadian dollars over seven years, but also introduced who thought that it was an important step taken on Bill C-33, First Nations Control of the First Nations behalf of the federal government.＊33 However, while Education Act.＊40 Once again, critics contested that the Indigenous individuals were grateful for the gesture government failed in their supposed solution, since the that the apology symbolized, they urged that the bill showed that the government was unwilling to government needed to substantiate the apology with relinquish control over the education funding by policies and programs.＊34 maintaining a strict accountability regime between the Critics of the Harper government argue that in the First Nations who received funding and the bureaucrats years following the apology, the federal government in the Department of Indigenous and Northern Affairs failed to take the necessary steps towards Canada.＊41 reconciliation and healing for Canadian Indigenous This example of the government’s perceived failure people through various policy and program decisions. in regards to First Nations educational funding is For instance, in 2007, the Harper government voted somewhat informative of the way many critics view against the United Nations Declaration on the Rights of Harper government’s overall approach to funding First Indigenous Peoples（UNDRIP） at the United Nations Nations programs and policies. Throughout their two General Assembly. In 2010, the Harper government terms in power, the Harper government eliminated reversed their position and decided to formally endorse several Indigenous programs and cut funding to UNDRIP； however, the endorsement was made with various other initiatives.＊ 42 Through each of these much hesitation.＊35 The Harper government feared decisions, the Harper government increased the tension that the adoption of UNDRIP would provide Indigenous between Indigenous people in Canada and the federal groups with the power to veto government decisions, government. However, as will be discussed below, the which they claimed would run contrary to Canada’s relationship between the federal government and

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Canadian First Nations has recently improved since indigenous strategies and plans.＊ 47 In addition, the Prime Minister Justin Trudeau’s new government University of Victoria recently announced the creation replaced Harper’s government in 2015. of Canada’s first joint degree law program in Common Law（JD）and Indigenous Legal Orders（JID）. ＊48 Truth and Reconciliation The business community across Canada has also Before moving on to discuss Prime Minister Justin taken up the TRC’s“94 Calls to Action”. In May 2017, Trudeau’s current and recent actions as it pertains to the Canadian Chamber of Commerce, Canada’s largest Canadian First Nations, a word must be said about and most influential business association, released a Canada’s Truth and Reconciliation Commission（TRC）. report titled“Coming Together, Making Progress： The TRC was created in 2007 as a part of the Business’s Role in Reconciliation with Indigenous settlement from a class action lawsuit brought against Peoples.” The report was sponsored by businesses in the Government of Canada by those affected by Indian various industries in Canada, from the financial sector Residential Schools. Indian Residential Schools were a to the natural resources sector.＊49 After surveying part of an institutionalized cultural assimilation businesses across Canada, the report suggests that program that forced Indigenous children to attend Canadian businesses recognize that they have a role to boarding schools away from their parents. The TRC’s play in Indigenous reconciliation.＊50 The businesses role was to“facilitate reconciliation among former would like to follow the government’s lead in students, their families, their communities and all reconciliation and develop education tools so that all Canadians.”＊43 The Government of Canada provided Canadians may learn more about why reconciliation is approximately 72 million Canadian dollars to the TRC necessary in Canada. Moreover, the report suggests from 2007 to 2015. In addition to hosting seven events that providing education tools will enable smaller across Canada to educate the public on the impact of businesses, who are unable to fund robust Indigenous residential schools, the TRC also travelled across training programs for their employees, to develop Canada to collect testimonies from over 6500 Indian programs that will educate their workers on how they Residential School witnesses.＊ 44 In 2015, the TRC may contribute to reconciliation.＊51 Finally, businesses released a final report titled“94 Calls to Action”, which hope to see more government support for Indigenous provides recommendations for how Canada can facilitate entrepreneurs in Canada and vow to takes steps to reconciliation with First Nations.＊45 The report not only become“indigenous community champions” by provides specific suggestions to Canadian municipal, partnering with Indigenous businesses and being provincial and federal governments, but also provides proactive in their hiring practices to employ more proposals for other industries within Canada – from the Indigenous individuals.＊52 business sector, to the media, and to universities. The TRC’s purpose of encouraging reconciliation The TRC’s“94 Calls to Action” is one of the organi- remained constant from its inception in 2007 until its zation’s major accomplishments. Since its release, the completion in 2015, and, as explained above, has report has been recognized throughout Canada’s public recently been endorsed by the private sector. The and private sectors. For example, universities across federal government’s appreciation of the need for Canada have taken steps to show that they are reconciliation proposed by the TRC, however, has committed to the goal of supporting reconciliation with fluctuated based on whether it was Harper’s or Indigenous persons within Canada. In October 2016, Trudeau’s government in power. As will be explored the University of Western Ontario in London, Ontario, below, in opposition to Harper’s government, Trudeau’s launched an Indigenous Strategic Plan.＊46 A year later, government can be observed as attempting to align in 2017, other universities such as the University of their mandate as much as possible with the goal of Victoria and the University of Calgary also released reconciliation.

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Trudeau（2015-Current）：Steps Towards another to improve the federal government’s Reconciliation environmental assessment model for major projects It was in light of this perceived failure by the Harper and to modernize the National Energy Board（NEB） to government regarding Canada’s First Nations that include Indigenous participation and knowledge.＊57 Canada’s current Prime Minister, the Right Honourable On February 8, 2018, the Ministers unveiled their Justin Trudeau, began his political campaign in 2015. plan through Bill C-69, An Act to enact the Impact During his campaign, Trudeau portrayed himself as an Assessment Act and the Canadian Energy Regulator advocate for First Nations. As leader of the Liberal Act.＊ 58 The proposed bill highlights the current Party of Canada, Trudeau campaigned on bringing government’s commitment to increased First Nations “Real Change” to Canada, which included several participation and consideration in Canada’s natural election promises to improve Canada’s nation-to-nation resources and environmental sectors. In the bill, the relationship with First Nations, to conduct consultations government proposes replacing the current Canadian with First Nations on environmental assessments for Environmental Assessment Act with the Impact major projects, to increase investments in First Assessment Act. Section 22 of the proposed Impact Nations’ communities and education, and to launch an Assessment Act lists the factors that must be inquiry into missing and murdered Indigenous women considered by the Impact Assessment Agency and the and girls.＊53 These campaign promises resonated with Minister of the Environment under the new impact First Nations across Canada. Political poll analyst, Éric assessment approach for major resource projects. Grenier, suggests that the voter turnout for Indigenous Several of the factors cited in the bill directly relate to Canadians increased significantly in the 2015 election Indigenous Peoples in Canada. For instance, the new from the previous election in 2011.＊54 Moreover, he approach must consider： holds that the data suggests Trudeau’s political party （a）the impact that the designated project may have benefited from the turnout.＊ 55 While the poll data on any Indigenous group and any adverse impact should be taken lightly, one thing is certain： Trudeau’s that the designated project may have on the campaign for“Real Change” resonated with Canadians rights of the Indigenous peoples of Canada and in 2015 the Liberal Party of Canada led by recognized and affirmed by section 35 of the Trudeau won a majority government. Constitution Act, 1982； Within weeks of being appointed, Trudeau began （b）traditional knowledge of the Indigenous peoples taking steps to fulfill his promises to First Nations in of Canada provided with respect to the Canada. In his mandate letters to his newly appointed designated project； Cabinet Ministers, Trudeau reminded all his appointed （c） considerations related to Indigenous cultures Ministers of his desire to improve relations with First raised with respect to the designated project； Nations in Canada. In each letter, he wrote the （d）any assessment of the effects of the designated following statement：“No relationship is more project that is conducted by or on behalf of an important to me and to Canada than the one with Indigenous governing body and that is provided Indigenous Peoples. It is time for a renewed, nation-to- with respect to the designated project.＊59 nation relationship with Indigenous Peoples, based on Overall, the Impact Assessment Act outlines the recognition of rights, respect, cooperation, and factors that the federal government will consider when partnership.”＊56 In line with this message, he assigned assessing projects. The new act shows that the specific tasks to each minister that were consistent Trudeau government is concerned with not only with his overall election promise of reconciliation. For conducting an environmental impact assessment, but example, in his mandate letters to Canada’s Minister of rather a holistic impact assessment that considers Natural Resources, Minister of Environment and multiple factors such as the potential environmental, Climate Change, and Minister of Fisheries and Oceans, social, economical, and health impacts that a project he specifically tasked the Ministers to work with one may have.＊60

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In addition, to considering the above factors, the what his current government is doing to fix Canada’s government also proposes that an impact assessment past wrongs and encourage reconciliation. For example, expert committee should be established. The legislation as was previously noted, in opposition to the Harper suggests that this committee must have at least one government, Trudeau campaigned on the promise to Indigenous person represented.＊61 Moreover, the Act implement UNDRIP into Canadian law.＊68 The Harper envisions that a separate advisory committee be government endorsed the document, but did not fully established to advise the Impact Assessment Agency implement it into Canadian jurisprudence. In November on the impacts and concerns of Indigenous peoples in 2015, Canada’s newly appointed Indigenous and Canada as it pertains to all major projects in review.＊62 Northern Affairs Minister, the Honourable Carolyn Overall, Bill C-69 supports the notion that Trudeau and Bennett, reaffirmed the current government’s promise to his Ministers are committed to being sensitive to the take steps to implement the international document.＊69 concerns of Indigenous peoples and communities in More recently, in November 2017, Canada’s Justice Canada, including their concerns as it pertains to the Minister, the Honourable Jody Wilson-Raybould, approval of major resource projects in Canada. announced that the government would back a private The current government’s commitment to First member’s bill from the New Democratic Party of Nations in Canada may be also observed through the Canada, Bill 262, An Act to ensure that the laws of government’s fiscal budgets over the past three years. Canada are in harmony with the United Nations In 2016, the Trudeau government released its first Declaration on the Rights of Indigenous Peoples.＊70 Bill fiscal budget.＊63 A review of the budget highlights that 262 proposes that the principles set out in UNDRIP the Trudeau government intended to fulfill its election should be enshrined into the laws in Canada.＊ 71 promise of increasing support for Indigenous Peoples in Although the bill has only undergone a first reading in Canada. The Assembly of First Nations in Canada the parliament at the time of waiting this paper, it is applauded the 2016 budget, exclaiming that in the being endorsed by the current majority government budget“[a]n historic $8.4 billion over 5 years in and retains the support of the NDP party. In fact, investments have been made on Indigenous issues.... UNDRIP’s implementation was an election promise [The Budget] provides a specific promise to engage in made by the NDP party in 2015.＊ 72 Overall, the a new long-term fiscal relationship.”＊64 The Assembly Trudeau government has taken steps show the of First Nations in Canada maintained enthusiasm international community that Canada is serious in through the release of the federal government’s fiscal making reconciliation with Indigenous Canadians a budgets in 2017 and 2018.＊65 Upon the release of the priority. 2018 budget, the Assembly of First Nations National Chief, Perry Bellegarde, exclaimed that the newest Summary budget marked“the third year of continued, sustained It is necessary to end by noting that, while the investment in First Nations.”＊66 Overall, the reactions current government is praised for the approach they from stakeholders suggests that the current are taking in regards to reconciliation with Indigenous government has adequately displayed their Canadians, they have not been immune to criticism. commitment to funding indigenous policies and Some individuals stress that the Trudeau government programs across Canada. has been slow in implementing the changes they Finally, the Trudeau government has taken actions promised they would make.＊ 73 Other individuals on the international stage to show their commitment to critique that the government has steered clear of First Nations. On September 21, 2017, Prime Minister having meaningful discussions about how reconciliation Trudeau addressed the United Nations General with Indigenous Canadians includes making changes to Assembly.＊ 67 In his speech, he spent a significant the way in which land and resources are regulated amount of time addressing Canada’s previous failures within Canada.＊74 For example, Indigenous leaders towards Indigenous peoples in Canada and outlining have expressed concerns that the Trudeau government

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アナリシス approved the construction of the Kinder Morgan oil government missed a significant opportunity for pipeline expansion project without adequately reconciliation by not appointing an indigenous person considering the potential issues raised by Indigenous to the highest court in Canada.＊77 groups.＊75 Finally, the Trudeau government’s recent In summary, while the current government has decision not to appoint a First Nation, Inuit or Métis taken steps to show they are serious about improving judge to the Supreme Court of Canada to replace Canada’s relations with its First Nations, Inuit and retiring Chief Justice, the Right Honourable Beverley Métis, they have not escaped criticism and have at McLachlin, has also been scrutinized.＊ 76 The times allowed their reconciliation agenda to be Indigenous Bar Association lamented that the Trudeau overruled by other policy considerations.

Part 3. Case Law

Introduction Indigenous rights. Ultimately, while the courts in In the previous sections, we outlined the historical Canada have not been immune to criticism, they should context as well as the recent political dynamic in recognized by the way in which their modern Canada regarding Indigenous peoples. In the recent judgments have attempted to align with Canada’s years, federal and provincial governments, universities, current goal to improve reconciliation with Indigenous and businesses have sought to address the need for peoples and increase the recognition of Indigenous reconciliation with Canada’s Indigenous peoples. In this rights. section, we will elaborate the role of the judiciary in The inescapable truth is that all businesses share a this process of reconciliation throughout the past profound nexus with the law through meeting legal several decades. In 1985, Justice MacDonald, former obligations, regulatory compliance, administrative British Columbia Supreme Court judge, remarked“We approvals, respecting jurisdictional authority, or cannot recount with much pride the treatment controlling and limiting liability. No matter the accorded to the native people of this country.”＊78 More industry, all businesses must conduct themselves in recently, in 2015, the former Chief Justice of the accordance with the law. Aboriginal law represents Supreme Court of Canada, the Right Honourable another, often unforeseen, dimension to the Canadian Beverley McLachlin, spoke at the Global Centre for legal system. In order to properly approach the topic of Pluralism where she made remarks that mirrored Aboriginal law it is important that one has a grasp of Justice MacDonald’s sentiments. In the lecture, the historical case law pertaining to Aboriginal and McLachlin discussed how Canada’s relationship with Treaty rights. We will begin this section by laying out Indigenous peoples is tarnished by a historical“cultural the historical legal framework. genocide” that must be addressed.＊79 Some criticized The changing social and political landscape in Canada her comments as being an example of the prejudice has led to dramatic developments and changes within within Canadian courts, which unlike the legislature, Canadian jurisprudence over the last several decades. are supposed to be unbiased institutions.＊80 While this Most significantly, in 1982, Canada’s constitution was section will not comment on the appropriateness of amended through the Constitution Act, 1982. The McLachlan’s remarks, it is useful to highlight her amendments included s. 35, which speaks directly to remarks at the outset of this section to provide some Aboriginal and Treaty rights. The provisions of s. 35 context about the paradigm that the judiciary has are as follows：＊81 adopted in approaching recent cases related to

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RIGHTS OF THE ABORIGINAL PEOPLES OF Overall, the implementation of s. 35 of the CANADA Constitution Act, 1982 was extremely important for Recognition of existing aboriginal and treaty rights the development of Aboriginal and Treaty right 35.（1）The existing aboriginal and treaty rights of jurisprudence in Canada. Since s. 35’s implementation, the aboriginal peoples of Canada are hereby the Supreme Court of Canada has rendered many recognized and affirmed. decisions about the interpretation and scope of s. 35. Definition of “aboriginal peoples of Canada” As the highest court in Canada, the Supreme Court of （2）In this Act,“aboriginal peoples of Canada” Canada’s foundational Aboriginal law decisions have includes the Indian, Inuit and Métis peoples of bound all jurisdictions within Canada. In the sections Canada. below, we will provide a basic overview of many Land claims agreements seminal Canadian cases related to Canada’s Indigenous （3）For greater certainty, in subsection（1） “treaty peoples, most of which have been decided by the rights” includes rights that now exist by way of land Supreme Court of Canada. claims agreements or may be so acquired. Aboriginal and treaty rights are guaranteed Identification of Rights equally to both sexes From a business perspective, it is paramount to （4）Notwithstanding any other provision of this Act, understand the importance of properly recognizing the aboriginal and treaty rights referred to in Aboriginal and Treaty rights. The existence and nature subsection（1）are guaranteed equally to male and of Aboriginal and Treaty rights dictates legal female persons. obligations which will affect business operations across Canada. By properly identifying Aboriginal and Treaty Prior to s. 35 of the Constitution Act, 1982, rights, businesses can avoid costly disputes and Aboriginal rights were first recognized under common negative public attention. Moreover, businesses can law as early as 1973 in the seminal case Calder v ensure they are sufficiently meeting their legal British Columbia（Attorney General）.＊82 In Calder, the responsibilities, contributing positively to Canada’s Supreme Court of Canada recognized the validity of goals pertaining to reconciliation, and helping to be a underlying Aboriginal title. Since common law is driven positive influence on the communities with which they by precedent and can be overridden by express work. legislation, the Constitution Act’s language of“the Where any possible Aboriginal and Treaty right existing aboriginal and treaty rights of the aboriginal disputes may exist, the potential defendant must begin peoples of Canada are hereby recognized and affirmed” by identifying the relevant Aboriginal or Treaty right circumvents the vulnerability of the courts original that needs to be considered. The burden of proof for holding in Calder.＊83 This statement in the Constitution advancing a claim for or under an Aboriginal or Treaty Act formally recognized the validity of Aboriginal and right is borne by the party making the claim（the Treaty rights and provided Indigenous peoples with claimant） on a balance of probabilities.＊87 constitutional protection from any unjustified infringement by the federal or provincial governments.＊84 Evidential Caveat In addition, s. 52（1） of the Constitution Act states that A principle that is reiterated throughout the case law “[the] Constitution of Canada is the supreme law of on Aboriginal and Treaty rights is that the courts must Canada”＊ 85 and that any inconsistency between operate with a“consciousness of the special nature of Canadian law and a constitutional provision, s. 35 aboriginal claims.”＊88 This principle requires that the included, is thus rendered of no force and effect to the courts provide a degree of flexibility when accepting extent of its inconsistency.＊ 86 As a result, a evidence from Indigenous peoples who lack written constitutionally entrenched right is one that historical records. The courts should not undervalue governments cannot easily undermine. presented traditional evidence because it does not

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アナリシス conform to prevailing common law standards.＊89 In A leading case on Aboriginal rights is Van der Peet. other words, Aboriginal law claims will receive In this case, the Supreme Court of Canada outlines how exceptions＊90 to the evidential requirements under to identify a valid Aboriginal right and categorize the common law and instead receive an approach properly scope of the right. Understanding the scope of the right reflective of their sui generis nature, which facilitates is essential, since unlike Treaty rights, with an the necessary inclusion of Indigenous perspectives.＊91 Aboriginal right, there is no document or formal Unlike other areas of Canadian law, Aboriginal law agreement to defer to. As eluded to earlier, Aboriginal requires a fusion of common law with Indigenous law. rights can be best summarized as“practices, traditions and customs integral to the distinctive cultures of Identifying an Aboriginal Right aboriginal peoples.”＊97 They should not, however, be A common point of confusion pertains to the mistakenly categorized as a personal right, but instead difference between an Aboriginal and a Treaty right. It as a collective community right.＊98 To decide whether can be difficult to distinguish the two rights by their a claimant has a valid Aboriginal right claim, the qualitative characteristics. For example, a specific Supreme Court of Canada held in Van der Peet that hunting practice can be either an Aboriginal right or a the following principles should be examined. Treaty right depending on the context. However, there Firstly, a claimant must identify the scope of the are distinct differences between the two, which largely Aboriginal right at dispute. This requires a characteri- stem from where the rights are sourced. zation of the nature of the right.＊99 For example, the The Government of Canada describes Aboriginal right to hunt may be limited to one specific form of rights as the practices, customs, or traditions that are hunting, to hunt only a particular animal, or to hunt unique to specific First Nation groups which were part only to the extent required to fulfill a religious of their cultural heritage prior to European contact.＊92 obligation. While Van der Peet cautioned applying According to Van der Peet, a case that will be overly specific characterization and reinforced the described in more detail later, Aboriginal rights pre- concept of Aboriginal rights undergoing permissive dated both the Constitution Act’s affirmation of existing modernization, this requirement should not be rights in 1982 and European contact.＊ 93 This underestimated.＊100 Defining the scope appropriately is description recognizes that“aboriginal peoples were critical to the success of any claim. Recent case law has already here, living in communities on the land, and demonstrated that the courts are willing to strike down participating in distinctive cultures, as they had done actions where overly broad interpretations are used to for centuries.”＊94 Aboriginal rights include a diverse enlarge what may be a valid underlining claim.＊101 array of cultural practices that may encompass specific Secondly, there needs to be some form of continuity forms of hunting, cultural ceremonies, dietary practices, of the practice itself, and this continuity must pre-date medicinal techniques, governance or even religious European contact.＊102 This requires simply identifying traditions. This is not an exhaustive list, but simply a a practice as pre-dating European contact and showing demonstration of the diversity of practices that may be how it continues today. The demonstration of an considered under Aboriginal rights. All First Nations unbroken chain of continuing performance of such a are distinct cultural groups and as a result the practice is not required.＊103 Moreover, the practice is composition of their relevant Aboriginal rights are allowed to evolve over time.＊104 For example, a hunting themselves also distinct. In addition, Aboriginal rights practice that traditionally involved oar-propelled canoes may be limited to a First Nations’“ancestors’ will not be nullified because First Nations now use longstanding use and occupancy of the land”＊ 95 motor boats. through Aboriginal title. However, it should be noted Overall, Aboriginal rights are not frozen in time； that Aboriginal title（a form of Aboriginal rights） is the Supreme Court of Canada recognizes that change not mandatory for finding or sourcing other Aboriginal may have occurred due to European contact.＊ 105 rights.＊96 However, a practice that did not exist prior to

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European contact, but formed in response to it, will not a practice to be deemed an Aboriginal right, it needs to be protected as an Aboriginal right.＊106 For example, be a distinctive practice.＊112 The Supreme Court of the integration of European technology into hunting Canada does not require the practice to be culturally practices is acceptable, so long as same act existed distinct.＊ 113 Rather, to be a distinct practice, the prior to European contact. An example of this would practice must be unique to the particular Aboriginal be hunting a dear with a rifle instead of a traditional group bringing the claim. In other words, the practice bow. However, where the hunting activity developed in needs to be undertaken in a manner that“makes the response to European contact, the practice is not a part culture what it is.”＊114 Through this requirement, the of the original culture and as a result will not be Supreme Court of Canada seeks to limit the protection granted protection under s. 35 of the Constitution Act, to only those practices that are culturally significant or 1982. For instance, if the practice of hunting a certain a distinguishing feature of the First Nation claimant.＊115 type of animal was made possible because of modern Lastly, given the unique position of each First Nation technologies, which have more capabilities than group, the Supreme Court of Canada stated that the traditional devices, then this hunting practice may not recognition of an Aboriginal right will be undertaken be protected under an Aboriginal right to hunt. on a case by case basis.＊116 If one First Nation has a Thirdly, the practice must be of integral or central specific recognized Aboriginal right, it does not significance to a society.＊107 This can be a difficult necessarily entitle another First Nation to the same category to conceptualize. The Supreme Court of right. Rather, distinctive groups must provide specific Canada provides an apt method of approaching this evidence to support their own respective claims. requirement：it must be demonstrated that the Overall, as noted earlier, being able to identify disputed practice“made the society what it was.”＊108 Aboriginal rights is important. Even if there is no Another method of examining this concept is asking apparent Treaty right that needs to be considered, whether the culture would be“fundamentally altered there may still be a potential Aboriginal right claim. or other than what it is” without that practice.＊109 The process to establish an Aboriginal right may bring Thus, for example, eating to survive would not really a significant financial cost to a claimant or a First meet the requirements, as it is something shared by all Nation community. It may also require other parties, peoples. However, eating a particular item for a such as a business who wants to conduct themselves in particular religious purpose may be validly recognized a way that may infringe on an undetermined as being a central cultural practice. Aboriginal right, to expend their own time and Fourthly, the courts require that the practice in resources in the litigation dedicated to determining if a question must not merely be incidental to another right should be recognized or not. In reality, the disputed activity.＊110 The Supreme Court of Canada establishment of an Aboriginal right is often only seeks to avoid a form of“piggybacking on integral sought when conflict arises. Thus, being able to practices, customs and traditions.”＊111 This reinforces properly evaluate whether a right exists before an the importance of properly defining the scope of the issue arises is of critical importance for any party who right. For example, if there is an established Aboriginal may deal with First Nation communities. right involving a practice relating traditional medicine, there may be a valid claim regarding a First Nation Identifying Métis Right member’s right to receive traditional medical services S. 35（2） of the Constitution Act, 1982 defines in the traditional language. This may be deemed Indigenous peoples of Canada as“Indian, Inuit and incidental to the larger right. Nevertheless, the courts Métis”.＊117 As a result, Métis peoples are conferred and third parties should be cautious not to presume the same rights under the constitution as all other what is significant without properly evaluating all the Indigenous peoples. evidence for the claim. Métis populations represent an exception to the rule Fifth, the Supreme Court of Canada has held that for identified in Van der Peet. The focus in Van der Peet is

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アナリシス largely about pre-European contact practices and same analysis throughout the remainder of the customs. However, as was explained in Part 1, Métis is Aboriginal law framework discussed below. an ethnic group with a distinct culture, comprised of people with both Indigenous and European ancestry. Identifying Aboriginal Title Not everyone who has mixed ancestry will necessarily One of the most influential Canadian cases dealing be classified as Métis；＊118 rather, only those who are with Aboriginal law is Delgamuukw, which provides members of a group with a distinct culture will greater clarity to various concepts concerning the qualify.＊119 rights of Indigenous peoples of Canada.＊128 Calder may Given the language used in Van der Peet, minor have opened the door to the existence of Aboriginal changes and additions to the above test must be made title, but it could still be extinguished by the federal when a Métis person makes an Aboriginal right claim. government.＊ 129 While the Constitution Act, 1982 The first necessary alteration is to the requirement of offered protection to Aboriginal title, it remained the concept of continuity. Because Métis people are a unclear how one could identify and prove claims. This product of European contact, it is impossible to require was particularly troublesome in areas of Canada not them to provide evidence of pre-contact practices to covered under the Numbered Treaties, such as British validate their Aboriginal right claims.＊120 Instead, the Columbia. Delgamuukw was the first case that offered Van der Peet test is modified for Métis people to show a framework for identifying and proving Aboriginal that the practice continues from European contact title claims. until today.＊121 In Delgamuukw, the Supreme Court of Canada The next three additions to the Van der Peet test distinguished Aboriginal title from the Anglo-Canadian are used to determine a Métis person’s identity. First, concept of land ownership, which derives from a claimant must self-identify as a Métis.＊122 The self- medieval England, and clarified that Aboriginal title is identification must not be made after the dispute a subset within the broader category of Aboriginal was raised.＊ 123 Second, the claimant must have rights. Aboriginal title is sui generis and should not be ancestral links to a historic and recognizable Métis treated in the same manner as other proprietary community.＊124 The Supreme Court of Canada notes interests.＊130 While Aboriginal title includes a right of that this does not require a scientific blood quantum. exclusive use and occupation of land,＊131 it is not an Rather, a recognizable family link or“proof that the individual right but held communally by members of a claimant’s ancestors belonged to the historic Métis particular Indigenous group.＊132 Also, Aboriginal title, community by birth, adoption, or other means.”will unlike other Canadian land titles, does not originate suffice.＊125 Finally, the claimant must prove that the from the Royal Proclamation of 1763, but from the claimant is a recognized member of a current existing prior occupation of Canada by Indigenous peoples. ＊133 Métis community.＊126 The Supreme Court of Canada Indigenous peoples have Aboriginal title because they does not require the claimant to provide proof of an lived in Canada before the Europeans settled. official communal approval or a formal membership The Supreme Court of Canada has, however, created card. Instead, the claimant only needs to show that the numerous inherent limitations on Aboriginal title. For claimant has a“past and ongoing participation in a instance, the land under Aboriginal title can only be shared culture.”＊127 Overall, the Supreme Court of used for purposes that are not irreconcilable with the Canada seeks to ensure that only those who participate historical use the land.＊134 In practice, this means the in the‘common culture’ or are an active member in the Supreme Court of Canada will not recognize Aboriginal society are able to make a claim for an Aboriginal title where the use of the land conflicts or destroys the right. inherent value of the underlying historical relationship With these subtle alterations, the Van der Peet between the community and the land itself.＊ 135 principles laid out fully above can be applied to Métis. Delgamuukw provides an example： if the land was Further, the legal analysis for Métis will follow the traditionally used as a hunting ground, the land cannot

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be put to use as a strip mine.＊136 The Supreme Court contrary to the intention of s. 35 of the Constitution of Canada ruled that“[t]he community cannot put the Act, 1982.＊148 Here, the Supreme Court of Canada land to uses which would destroy that value.”＊ 137 was influenced by Mabo v Queensland（1992）, 107 Moreover, unlike regular title in Canada, Aboriginal ALR 1（HC）, a famous case concerning Australian title can only be transferred, sold, or surrendered to Aboriginal rights from the High Court of Australia. In the Crown.＊138 Mabo, continuity is established where there is a The Supreme Court of Canada also established a “substantial maintenance of the connection” between three-step test for Aboriginal title：（i） firstly, the the Aboriginal group and the disputed land. In a similar Indigenous people claiming Aboriginal title must have fashion, continuity may be demonstrated by proving a occupied the disputed land prior to the establishment “substantial connection between the people and the of sovereignty；（ii） secondly, the Indigenous people land is maintained.”＊149 While this will be easily met if claiming Aboriginal title must demonstrate that they present occupation aligns with historic territory, have used the land continuously since before the Indigenous peoples disenfranchised from land over the establishment of the Crown sovereignty in Canada；（iii） course of history may still make a claim and win, if finally, the Indigenous people claiming Aboriginal title their relationship to the land is maintained. must demonstrate that they had exclusive occupation The third and final step of the test concerns the over the disputed land.＊ 139 The Indigenous people exclusivity of occupation of the claimant Indigenous claiming Aboriginal title must bear the burden of proof people. In this step, it is noteworthy that the notion of of all of the three steps of the test.＊140 property may differ greatly between the Western legal In the first step of the test, the issue is whether the system and the traditional Indigenous legal systems. claimant Indigenous group sufficiently occupied the For instance, the Anglo-Canadian legal system sees disputed land“at the time at which the Crown asserted exclusivity as sine qua non of property rights, while sovereignty over the land subject to the title.”＊141 This many Indigenous peoples have a legal conceptualization investigation must be undertaken in a culturally that endorses co-management through reciprocal sensitive approach that recognizes both common law interactions or group inclusivity.＊150 An Aboriginal and aboriginal perspectives.＊ 142 The test may be concept of exclusivity may allow for overlapping claims satisfied by current physical occupation of the claimant of multiple groups to establish“shared exclusivity.”＊151 group to some extent； alternatively, the recognition of Furthermore, the claimant Indigenous group must have title by historical prevailing Aboriginal legal systems both“the intention and capacity to retain exclusive may also suffice.＊143 The occupation may be proven by control.”＊152 The physical presence on a specific tract archeological evidence such as construction of of land or the frequent use of land may qualify as a dwellings, historic cultivation of land, or exercising demonstration of the intention and the capacity to rights pertaining to various ceremonial or resource control the land exclusively.＊153 For instance, where an utilization.＊144 The claimant group is not required to Indigenous group requires other Indigenous groups or live in one specific location and nomadic life styles may Europeans to obtain permission to use or pass through be recognized under this test.＊145 a certain area, it is likely that the Canadian judiciary The second step of the test requires that there is will see this as an element of exclusive control of that continuity of occupation. The test is met when there is area.＊154 If the claims of multiple Indigenous peoples evidence supporting“continuity between present and overlap, such claims may be recognized as“shared pre-sovereignty occupation.”＊146 However, continuity exclusivity,”provided that adequate evidence can be does not require“an unbroken chain”＊ 147 because adduced to prove the underlying intention to preclude historic volatility between Indigenous peoples and third parties.＊155 European settlors may have caused disruptions beyond If all three steps of the test are satisfied, the the control of Indigenous peoples. To demand strict Aboriginal title is prima facie established. In the case adherence to continuity of occupation would run that the claimant Indigenous group fails to meet the

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アナリシス

requirements for an Aboriginal title, the group may surrounding the conclusion of the agreement, any still make claims for Aboriginal rights.＊156 evidence from the negotiation processes, and the subsequent endorsements of the agreement by both Treaty Right parties.＊168 Aside from Aboriginal rights, Indigenous peoples may enjoy specific rights under a treaty. Treaty rights Treaty interpretation principles are defined by the Government of Canada as effectively The Honourable Peter Cory of the Supreme Court of Aboriginal rights that are agreed upon formally Canada remarked,“Treaties may appear to be no more through a Treaty.＊ 157 Treaty rights arise from an than contracts. Yet they are far more. They are a “agreement whose nature is sacred”＊158 between the solemn exchange of promises made by the Crown and Crown and an Indigenous group, ＊159 and at the core of various First Nations.”＊169 When Treaty rights are such a Treaty is an“intention to create obligations.”＊160 invoked, strict reliance on common law principles is Unlike Aboriginal rights, Treaty rights may also be simply not sufficient.＊170 To properly accord for the sui entirely new rights granted from the agreement itself generis nature of Aboriginal law, both common law and that do not have pre-existing roots within the Indigenous legal perspectives are needed.＊171 Indigenous society.＊161 Treaty rights, however, only Before interpreting a Treaty, the historical origin of apply to signatories of a relevant Treaty＊162 and within the Treaty must be identified because historic Treaties the region covered by the Treaty. Treaty rights are and modern Treaties should not be treated in the same not transferrable to commercial entities such as a manner.＊172 Compared to historic Treaties such as the company, even if it comprised solely of Indigenous Numbered Treaties,“[t]he text of modern people from groups that signed the Treaty.＊163 Similar comprehensive treaties is meticulously negotiated by to Aboriginal rights, Treaty rights belong to the well-resourced parties”＊173 and the text and language respective community.＊164 used is mutually understood and detailed.＊174 Further, As discussed in Part 1, there are different types of unlike historic treaties, modern treaties are the result Treaty rights, depending on the nature of concluded of sophisticated negotiations,＊175 as both parties have agreements. These include Peace and Friendship competent legal representation.＊176 As a result, there Treaties in Eastern Canada and the Numbered Treaties is much less room to debate the interpretation of in Ontario and Western Canada. In the Numbered provisions compared to the ambiguity prevalent in Treaties, Indigenous peoples ceded title to land in historic Treaties.＊177 exchange for benefits and a formal recognition and For historic Treaties, such as the Numbered protection of aboriginal practices. The surrender of Treaties, cases known as Marshall 1＊178 and Marshall land, however, is not a requirement. A valid enforceable 2＊179 summarize the principles of Treaty interpretation. Treaty may form without the exchange of real A list of relevant central Treaty interpretation property or the surrender of land.＊165 principles, excerpted from Marshall 1, are listed Generally, Treaty rights can be identified expressly below：＊180 within a Treaty document, or in some circumstances, 1. Aboriginal treaties constitute a unique type of terms may be implied in a Treaty.＊ 166 When an agreement and attract special principles of agreement is not labeled as a Treaty, the courts are interpretation： required to“adopt a broad and generous interpretation 2. Treaties should be liberally construed and of what constitutes a treaty”＊167 in order to examine ambiguities or doubtful expressions should be whether such an agreement deserves constitutional resolved in favour of the aboriginal signatories： protection. The courts consider various factors, such as 3. The goal of treaty interpretation is to choose from the continuous exercise of the disputed right since the among the various possible interpretations of formation of the agreement, reasons for the Crown to common intention the one which best reconciles the assume the stipulated obligation, the circumstances interests of both parties at the time the treaty was

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signed： were surrendered or extinguished prior to 1982.＊185 4. In searching for the common intention of the Because of this limitation, the Crown may opt to parties, the integrity and honour of the Crown is provide evidence that the disputed right does not exist presumed： or was extinguished prior to the constitutional 5. In determining the signatories’respective enactments of 1982. The legal burden is borne by the understanding and intentions, the court must be relevant Crown representative alleging that the right sensitive to the unique cultural and linguistic does not exist.＊186 differences between the parties： Historically, it was interpreted that（i） the federal 6. The words of the treaty must be given the sense government acting in lieu of the Crown could which they would naturally have held for the parties extinguish Aboriginal rights and（ii） the provincial at the time： legislature never had this power of extinguishment.＊187 7. A technical or contractual interpretation of treaty However, the assumption underlying this interpretation, wording should be avoided： which was made from early case law, may no longer 8. While construing the language generously, courts be relevant. There exists uncertainty about whether cannot alter the terms of the treaty by exceeding this principle would remain valid in the future disputes. what“is possible on the language” or realistic： In order to negate a claim of Aboriginal rights, the 9. Treaty rights of aboriginal peoples must not be Crown must prove that it displayed explicit and clear interpreted in a static or rigid way. They are not intention to extinguish the claimed Aboriginal right. In frozen at the date of signature. The interpreting the words of the courts, the“sovereign’s intention must court must update treaty rights to provide for their be clear and plain if it is to extinguish an aboriginal modern exercise. This involves determining what right.”＊188 Since many aspects of society are regulated, modern practices are reasonably incidental to the the courts distinguish the difference between being core treaty right in its modern context. regulated over and being purposefully and intentionally These principles are constructed intentionally to extinguished. While the courts do not require language protect and favour Indigenous peoples. However, such that explicitly refers to the specific Aboriginal right, interpretations do not provide them with unlimited extinguishment of an Aboriginal right requires power：“rules of interpretation should not be confused substantially more than merely being subject to with a vague sense of after-the-fact largesse.”＊181 The regulatory legislation.＊189 courts have also reiterated that“[e]ven a generous Generally, formal extinguishment is seen as more interpretation of the document . . . must be realistic relevant to Aboriginal rights as opposed to Treaty and reflect the intention of both parties.”＊182 rights. The concept of whether a Treaty right may be extinguished remains largely unresolved and has only Extinguishment been before the Supreme Court of Canada a handful of One of the primary benefits conferred to Aboriginal times. In one instances, in a case known as Simon, the and Treaty rights through the Constitutional Act, Supreme Court of Canada expressed its reluctance to 1982 is that no level of government can extinguish rule on the topic altogether.＊190 Rather, the Supreme them.＊183 Prior to the enactments of the Constitution Court of Canada commented that if extinguishment of Act, 1982, it was possible for the Crown to extinguish Treaty rights were possible, it would be“appropriate to Aboriginal and Treaty rights.＊ 184 Thus, a common demand strict proof of the fact of extinguishment.”＊191 rebuttal to a claim for Aboriginal or Treaty rights is In a more recent case Sioui, the Supreme Court of that the alleged right was extinguished by the Crown Canada concluded that“[t]he very definition of a treaty prior to the constitutional updates in 1982. This is a thus makes it impossible to avoid the conclusion that a valid argument because s. 35（1）of the Constitution Act, treaty cannot be extinguished without the consent of 1982 only recognizes and affirms existing Aboriginal the Indians concerned.”＊192 A Treaty involves two and Treaty rights and does not resurrect rights that parties, and the case law suggests that unilateral

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アナリシス extinguishment of a Treaty right requires some form diminution” of a right,＊201 and captures only those of consent from the Indigenous peoples who are interferences that are not insignificant.＊202 signatories to the Treaty. The next question concerns the threshold for such While outright extinguishment is rare, some argue an infringement. The case law has revealed the under that Aboriginal and Treaty rights are gradually some circumstances that licensing,＊203 access fees,＊204 eroding, a piece-meal process often termed as“death or caps on subsistence resource utilization＊205 may not by a thousand cuts.”＊193 While formal extinguishment constitute a prima facie infringement of Aboriginal may be debated within academic circles, in reality, rights.＊206 A mere inconvenience is not sufficient to Aboriginal and Treaty rights may be infringed to the pose unreasonable or unjustifiable hardship, and there point where there is no substantive remainder left to needs to some effect material harming the right itself. be exercised by members of the Indigenous community. Although each individual intrusion may not warrant an Infringement and Jurisdiction infringement, the summation of such individual One of the most contentious areas of debate within infringements may amount to a significant diminution the law concerning Indigenous Canadians has been the of the Aboriginal and Treaty right. power to infringe on Aboriginal and Treaty rights. In s. 91 and s. 92 of the British North America Act, also Infringement known as the Constitution Act, 1867, the respective If an Aboriginal or Treaty right is not expressly power of the federal government and the provinces is extinguished prior to 1982, the next question to ask is prescribed.＊207 Traditionally, it was understood that whether the disputed governmental action or legislation only the federal government could infringe on infringes upon the right. The claimant Indigenous Aboriginal and Treaty rights.＊208 group must establish that there is an infringement on a This division of power stems from federalism in balance of probabilities.＊194 Canada. Canada has two levels of government, and the s. 91（24）of the British North America Act allocates Test for identifying an Aboriginal right infringement jurisdiction over“Indians, and Lands reserved for the In Sparrow, the Supreme Court of Canada provides a Indians” to the federal government.＊209 Canada has framework for an infringement analysis, which is historically divided different powers to either the applicable to both Treaty rights＊195 and Aboriginal federal or the provincial governments, and while the title claims.＊ 196 The Sparrow infringement test is strict division ─ the so-called“water-tight departments” intentionally construed broadly to give courts a degree ─ seems to be slowly disappearing, the doctrine of of flexibility in identifying an infringement. The courts interjurisdiction immunity has largely remained active will recognize an infringement of Aboriginal rights in Canada throughout the last century. The where there are（i） imposed limitations that are interjurisdictional immunity doctrine gives certain unreasonable,（ii） undue hardship that affect Indigenous federal jurisdictions immense protection from peoples, and（iii） denial of Indigenous peoples to provincial intrusion. Any provincial legislation found to exercise their rights in their preferred means.＊ 197 impair the‘core’ operations or‘essential undertakings’ Gladstone is a case that defined infringements as “any of the federal government is rendered of no force or meaningful diminution of the appellants’ rights.”＊198 In effect.＊210 Not only does s. 91（24） provide federal Tsilhqot’in, the Supreme Court of Canada held that for government express jurisdiction over Indigenous a finding of an infringement, “[a]ll three factors must be Canadians, it also protects both Aboriginal and Treaty considered.”＊199 rights from any provincial intrusion. Further, While an infringement may derive from either（i） prominent case law such as Delgamuukw supported the purpose or（ii） the effects of government action or these conclusions by reiterating that“aboriginal rights legislation,＊200 not every interference amounts to an are part of the core of Indianness at the heart of s. 91 infringement. An infringement is a“meaningful （24）.”＊211

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However, in two recent landmark cases, Tsilhqot’ rights＊221 and Treaty rights,＊222 on the condition that in＊212 and Grassy Narrows,＊213 the Supreme Court of the action of each level of government is in accordance Canada seems to have removed Aboriginal rights＊214 with the division of power stipulated in s. 91 and s. 92 and Treaty rights＊ 215 from the“core” of federal of the British North America Act.＊223 interjurisdictional immunity protection.＊216 In Tsilhqot’ in, it concluded that“the proposition that provincial Justification of an infringement governments are categorically barred from regulating Finally, if a valid infringement is recognized, then the the exercise of Aboriginal rights, it should no longer be burden of proof moves to the defendant, the Crown.＊224 followed.”＊217 It further commented that“provincial The Crown must justify its infringement where an regulation of general application will apply to exercises infringement exists.＊225 If the Crown fails to justify the of Aboriginal rights, including Aboriginal title.”＊218 The infringement, then the infringing conduct will be held Supreme Court of Canada took away Aboriginal and to no force or effect per s. 52 of the Constitution Act, Treaty rights’ protection from provincial interference. 1982.＊226 The Supreme Court of Canada also seems to suggest that the infringement and justification frameworks Duty to Consult supplied in Sparrow and Delgamuukw are sufficient to According to Tsilhqot’in, the duty to consult acts as restrict provincial intrusions, without any need for a pre-requisite of the justification process. In the protection based on the previous interjurisdictional context of Aboriginal title, no justification of immunity doctrine.＊ 219 In Grassy Narrows, the infringement is possible without meeting the duty to judgment in relation interjurisdictional immunity’s consult first.＊227 Further, the duty to consult will apply protection over Treaty rights was remarkably concise. to other Aboriginal rights that are both asserted or The Supreme Court held that“[t]he doctrine of established, and where there are standing Treaty interjurisdictional immunity does not preclude the rights.＊228 Thus, the Crown must prove that it has Province from justifiably infringing treaty rights,” and discharged the duty to consult, before it can justify an referred to the decision in Tsilhqot’in as providing the infringement.＊229 full answer.＊220 The duty to consult stems from the honour of the Where there may have been room in the decision in Crown.＊230 The honour of the Crown is a concept that Tsilhqot’in to distinguish between Aboriginal rights the Crown upholds its promise without any sharp and Treaty rights, Grassy Narrows appears to dealings when engaged with Indigenous peoples. In succinctly limit the possibility of the distinction. other words, the“honour of the Crown requires that Tsilhqot’in made the intention of the Supreme Court of the Crown act with good faith.”＊231 Since Aboriginal Canada sufficiently clear： Aboriginal and Treaty rights and Treaty rights are communal rights, the duty to are no longer to receive a degree of protection from consult is owed to the community, not to specific the provincial legislature. The interpretation and the individuals. potential ramification of these two cases are still hotly While the Crown may fulfill these obligations through debated within the legal community. Yet Grassy a regulatory body, such as the National Energy Board Narrows clarifies what constitutes the Crown. Since （NEB）,＊ 232 or delegate procedural aspects to historic Treaties were concluded between the businesses,＊233 the Crown cannot contract out of its Indigenous peoples and the Crown, Grassy Narrows responsibility.＊234 The duty to consult ultimately rests clarifies that the Crown includes both the federal and with the Crown.＊235 Moreover, although there is no provincial governments, and the Crown’s obligations explicit legislative action that engages a duty to may be carried out by either of them. consult,＊236 any action of the Crown will invoke the To summarize this section, the current case law duty to consult, if there is real or constructive suggests that both the federal and provincial knowledge＊237 of an Aboriginal right or a potential governments have the capacity to infringe Aboriginal claim to an Aboriginal right. In the case of a Treaty

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right, as the Crown is a party to the Treaty, it will damages, or a court order to carry out the necessary always be held that the Crown had full knowledge of consultation.＊249 In extreme circumstances, the courts the right.＊238 Once the Crown is aware that a“conduct, may quash the impugned action or project altogether.＊250 immediate or prospective, may adversely impact on Even if a project is approved by the government, the established or claimed rights,”＊239 the duty to consult courts can overturn such license or approval, exposing will be invoked. businesses to significant risks. As a result, it is in the The degree of consultation is context-dependent, and best interest of all parties to operate in good faith and the“scope of the duty is proportionate.”＊ 240 For attempt to meet, and where possible exceed, example, if the Aboriginal right claim is weak or the expectations under this duty. likely adverse effect is minimal, the duty to consult may be discharged by simply providing notice.＊241 The Valid objective Supreme Court of Canada has also held that activities As identified in Sparrow, the justification process will such as an environmental impact assessment（EIA） require a valid objective.＊251 Much like the duty to may be sufficient in some circumstances. Furthermore, consult, a valid objective represents another precursor in some cases, the duty to consult may be satisfied requirement for the Crown before it can argue through standard business practices or regulatory justification of the infringement. While the case law is requirements, without any need for additional rather limited on examples of valid objectives, they consultation.＊242 The duty to consult also includes a should not include“measures enacted for relatively duty to accommodate the needs and concerns unimportant reasons.”＊ 252 Sparrow defines a valid expressed by Indigenous peoples,＊243 and the degree of objective as“compelling and substantial.”＊253 Yet this accommodation also depends on the strength of the is rather nebulous, and the courts have restrained from claim. The courts held that“[c]onsultation that excludes engaging in a liberal interpretation of such valid from the outset any form of accommodation would be objectives. In a more recent case Tsilhqot’in, the notion meaningless,”＊244 and that the duty normally includes of a compelling and substantial objective was defined “the opportunity to make submissions for consideration, as a“broader public goal asserted by the government formal participation in the decision-making process, and [furthering] the goal of reconciliation, having regard to provision of written reasons to show that Aboriginal both the Aboriginal interest and the broader public concerns were considered and to reveal the impact objective”＊254 they had on the decision.”＊245 However, the duty to To date, some of the examples of such compelling consult and accommodate is not a duty to agree.＊246 and substantial objectives identified by the courts In exceptional circumstances, where the include： general economic development, agriculture, contemplated actions by the Crown is extremely forestry, mining, protection of the environment or intrusive, Delgamuukw held that a duty to consult may endangered species, hydroelectric power, settlement of require a form of consent.＊247 However, Haida Nation foreign populations and the development of ruled that a consent is only appropriate“in cases of infrastructure.＊255 To summarize, the definition from established rights, and then by no means in every case. Tsilhqot’in suggests that a compelling and substantial Rather, what is required is a process of balancing objective may be anything that serves the public interests, of give and take.”＊248 Thus, the degree of interest but still upholds the honor of the Crown consultation and accommodation depends on the towards Indigenous peoples of Canada. circumstances of each case. The importance of the duty to consult should not be Justification test underestimated. The courts have made it clear that If the duty of consult is discharged and a valid failures to adhere to this duty will entitle a claimant to a objective for the infringing action is identified, the diverse array of remedies, including injunctive relief Crown may justify the infringement. The test for against the disputed activity, revocation of a license, justification is whether or not the Crown’s actions

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suffice to meet the obligations set out by its fiduciary adverse effects on the Aboriginal interest.＊266 duty to Indigenous peoples.＊ 256 In Sparrow, the Thus, even if a valid objective is identified with a Supreme Court of Canada described the Crown’s public interest, all these steps must be satisfied in fiduciary duty as follows：“special trust relationship and order for the Crown to justify its infringement on an the responsibility of the government vis-à-vis Aboriginal interest. aboriginals must be the first consideration in The rational connection requirement effectively determining whether the legislation or action in means that if the infringement is avoidable, then there question can be justified.”＊257 The sui generis nature of is no justification. The minimal impairment requirement Aboriginal rights and the Crown’s historical is related to the Crown’s fiduciary obligations to relationship with Indigenous peoples is the source of Indigenous peoples. Gratuitous or careless incursions the fiduciary obligations,＊ 258 and this was first by the Crown will not be tolerated. The closer the recognized in the seminal case Guerin.＊ 259 The infringement comes to a total prohibition on exercising language of“recognized and affirmed”＊260 within the the infringed right, the less likely it can be justified as Constitution Act, 1982 is of central importance, as it minimally impairing. Finally, the proportionality of “incorporate[s] the fiduciary relationship”＊261 into the impact requirement is a balancing exercise of positive Crown’s action concerning Indigenous peoples. and negative effects. In determining the positive and While the exact nature of the Crown’s fiduciary duty negative impacts, the duty to consult discussed earlier is context-dependent, Sparrow provided some guidelines may be relevant, as the consultation process will to determine whether the Crown has met its fiduciary uncover the needs of the community and provide obligation by asking the following questions：＊262 effective community involvement or compensation. The （i）Does the infringement achieve necessary objective consultation process also offers an opportunity to in the least impairing manner possible? reduce what may otherwise be an unavoidable and （ii）Is compensation necessary and if so in what severe adverse effect of the Crown’s infringing action. form? Engagement with relevant Indigenous communities （iii）Was adequate consultation of the objective and may also reveal opportunities to create greater benefits subsequent infringement conducted? to them through employment opportunities and This is not an exhaustive list but a demonstration of economic stimulus from the project itself, which may the scope, upon which the fiduciary duty analysis may counterbalance the adverse effects from the be conducted.＊263 In Tsilhqot’in, the Supreme Court of infringement. Canada clarified that the fiduciary duty not only requires the Crown to respect First Nation interests,＊264 Conclusion but also to“infuses an obligation of proportionality into The purpose of this paper is to provide an overview the justification process.”＊265 of Indigenous peoples of Canada and their rights in the By introducing the idea of proportionality, the modern jurisprudence. In Part 1, we reviewed the Supreme Court of Canada established a three-step historical context, focusing on the relationship between method to assess whether the infringement of an Indigenous peoples and European settlers. In Part 2, Aboriginal right can be justified. The three steps are as we provided the political context to show how the follows： discourse on Indigenous affairs has changed from the （i）Rational Connection： the infringement is Right Honourable Stephen Harper’s government to the necessary to achieve the Crown’s objective； current government led by the Right Honourable Justin （ii）Minimal Impairment： the Crown infringed no Trudeau. Having set the stage by providing the further than necessary to achieve the Crown’s historical background and the context of contemporary objective； and Canadian politics, we examined the development of （iii）Proportionality of Impact： the benefits from Canadian jurisprudence in regards to the rights of the the Crown’s action must be greater than the Indigenous peoples in Part 3.

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The road to reconciliation has just began in Canada, evolve, the Canadian jurisprudence follows the English and many proposals of the“94 Calls to Action” of the tradition, and, as such, the legal precedents enjoy a Truth and Reconciliation Committee have yet to be certain degree of gravitas； the fundamental principles implemented. The area of law involving Indigenous explored in this paper are unlikely to change drastically Canadians is rapidly evolving. Astute businesses must in the coming years. As Canada implements various be well informed of the developing jurisprudence, legislation and policies to further the reconciliation with especially those in the field of natural resources its Indigenous population, the business sector should development. remain informed about the new developments. In this paper, we discussed some of the milestone cases from the Canadian courts, including seminal Acknowledgement cases from the Supreme Court of Canada. Lawsuits The authors would like to express their gratitude to involving Indigenous rights take years if not decades to all those who made this paper possible. be resolved. While the jurisprudence will continue to

＊ 1 ： Constitution Act, 1982, being Schedule B to the Canada Act 1982（UK）, 1982, c 11 [Constitution Act, 1982]. ＊ 2 ： Canada, Statistics Canada, Aboriginal Peoples in Canada：Key Results from the 2016 Census（Ottawa：Statistics Canada, 2017） at 1, online：Government of Canada . ＊ 3 ： Ibid. ＊ 4 ： Ibid at 3. ＊ 5 ： Ibid at 2. ＊ 6 ： Ibid at 10. ＊ 7 ： Ibid at 2. ＊ 8 ： Indian Act, RSC 1985, c I-5. ＊ 9 ： R v Lavigne, 2006 SCC 10, [2006] 1 SCR 392. ＊10： Canada, Statistics Canada, supra note 2 at 3. ＊11： Ibid. ＊12： Ibid. ＊13： Ibid at 2. ＊14： The Constitution Act, 1867, 30 & 31 Vict, c 3, ss 91-92 [British North America Act]. ＊15： Reference whether“Indians” includes“Eskimo”, [1939] SCR 104, [1939] 2 DLR 417. ＊16： Canada, Statistics Canada, supra note 2 at 8. ＊17： Inuit Tapiriit Kanatami,“Maps of Inuit Nunangat（Inuit Regions of Canada）”（25 May 2018）, online：Inuit Tapiriit Kanatami . ＊18： Canada, Statistics Canada, supra note 2 at 4. ＊19： Ibid at 5. ＊20： Ibid. ＊21： Margaret Conrad, A Concise History of Canada（New York：Cambridge University Press, 2012） at 10. ＊22： Ibid at 11. ＊23： Ibid. ＊24： Ibid at 15. ＊25： Robert Bothwell, A Traveller’s History of Canada（London：Cassell & Co., 2001） at 10. ＊26： Canada, Indigenous and Northern Affairs Canada,“The Robinson Treaties（1850）” （15 September 2010）,

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online：Government of Canada . ＊27： Ibid. ＊28： Ibid. ＊29： Canada, Indigenous and Northern Affairs Canada,“Treaties with Aboriginal People in Canada”（15 September 2010, online：Government of Canada . ＊30： Nisga’a Final Agreement, 27 April 1999（entered into force 11 May 2000） online：. ＊31： Canada, Indigenous and Northern Affairs Canada,“Treaty Land Entitlement”（11 April 2017）, online： Government of Canada . ＊32： Canada, Indigenous and Northern Affairs Canada, “Statement of apology to former students of Indian Residential Schools”（11 June 2008）, online：Indigenous and Northern Affairs Canada . ＊33： Willow J Anderson,“‘Indian Drum in the House’ : A Critical Discourse Analysis of an Apology for Canadian Residential Schools and the Public’s Response”（2012） 74（6） The International Communication Gazette at 579；Cynthia Wesley-Esquimaux,“Stephen Harper and Indigenous Peoples” in Jennifer Ditchburn & Graham Fox, eds, The Harper Factor（Montreal；Kingston；London；Chicago：McGill-Queen’s University Press, 2016） at 224. ＊34： Beverly Jacobs,“Response to Canada’s Apology to Residential School Survivors”（2008） 26 Canadian Woman Studies 3/4 at 223-225；Anderson, supra note 33 at 579；Wesley-Esquimaux, supra note 33 at 224. ＊35： Canada, Indigenous and Northern Affairs Canada,“Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples”（12 November 2010）, online：Indigenous and Northern Affairs Canada . ＊36： Wesley-Esquimaux, supra note 33 at 224-225. ＊37： Ibid. ＊38： Canada,“Budget 2012：Chapter 3.3 Investing in Training, Infrastructure and Opportunity”（29 March 2012）, online：Government of Canada . ＊39： Assembly of First Nations,“Federal Budget 2012：Summary and Considerations”（5 April 2012）, online： Assembly of First Nations . ＊40： Bill C-33, An Act to establish a framework to enable First Nations control of elementary and secondary education and to provide for related funding and to make related amendments to the Indian Act and consequential amendments to other Acts, 2nd Sess, 41st Parl, 2014（1st reading in the House of Commons 10 April 2014）, online：Parliament of Canada . ＊41： Michael Mendelson, A Second Look at the First Nations Control of First Nations Education Act,（Ottawa：Caledon Institute of Social Policy, 2014） at 13-14, online：Caledon Institute of Social Policy ；Wesley-Esquimaux, supra note 33 at 226. ＊42： Wesley-Esquimaux, supra note 33 at 227. ＊43： Canada, Indigenous and Northern Affairs Canada, “Truth and Reconciliation Commission of Canada”（6 March 2018）, online：Indigenous and Northern Affairs Canada . ＊44： Ibid. ＊45： Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada：Calls to Action,（Winnipeg：2012）, online：Truth and Reconciliation Commission of Canada . ＊46： Western University, Indigenous Strategic Plan（6 October 2016）, online：Western University

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uwo.ca/universitywide/Indigenous%20Strat%20Plan%20-%20Final.pdf#Draft%20ISP >. ＊47： University of Victoria, Indigenous Plan 2017-2022, online：University of Victoria ；University of Calgary, Indigenous Strategy – Together in a Good Way： A Journey of Transformation and Renewal（February 2018）, online：University of Calgary . ＊48： University of Victoria, JD/JID Joint Degree Program in Canadian Common Law and Indigenous Legal Orders, online：University of Victoria . ＊49： The Canadian Chamber of Commerce, Coming Together, Making Progress：Business’s Role in Reconciliation with Indigenous Peoples（May 2017） at 3, online：The Canadian Chamber of Commerce . ＊50： Ibid at 7. ＊51： Ibid at 17-18. ＊52： Ibid at 19-20. ＊53： Liberal Party of Canada, Real Change：A Plan for a Strong Middle Class（2015） at 41-42, 46-48, online：Liberal Party of Canada . ＊54： Eric Grenier,“Indigenous voter turnout was up — and Liberals may have benefited most”, Canadian Broadcast Corporation（16 December 2015）, online：. ＊55： Eric Grenier,“Indigenous voter turnout was up — and Liberals may have benefited most,” Canadian Broadcast Corporation（16 December 2015）, online：. ＊56： Justin Trudeau, Prime Minister of Canada, Mandate Letters（Ottawa：Office of the Prime Minister, 2015）, online：Office of the Prime Minister . ＊57： Justin Trudeau, Prime Minister of Canada, Minister of Natural Resources Mandate Letter（Ottawa：Office of the Prime Minister, 2015）, online：Office of the Prime Minister . ＊58： Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, 1st Sess, 42nd Parl, 2018（1st reading in the House of Commons 8 February 2018）, online：Parliament of Canada . ＊59： Bill C-69, supra note 58 at Part 1, Section 22. ＊60： Martin Olszynski,“In Search of #BetterRules：An Overview of Federal Environmental Bills C-68 and C-69,”（15 February, 2018）, ABlawg（blog）, online：. ＊61： Bill C-69, supra note 58 at Part 1, Section 157. ＊62： Ibid at Part 1, section 158. ＊63： Canada, Budget 2016：Growing the Middle Class（Ottawa：2016）, online：Government of Canada . ＊64： Assembly of First Nations, 2016 Federal Budget Overview（2016） at 1, online：Assembly of First Nations . ＊65： Canada, Budget 2017：Building a Strong Middle Class（Ottawa：2017）, online：Government of Canada ；Canada, Budget 2018：Equality Growth - A Strong Middle Class（Ottawa：2018）, online： Government of Canada . ＊66： Assembly of First Nations, Budget 2018 Makes Essential Investments in First Nations Children and Investments

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to Strengthen First Nations Governments（27 February 2018）, online：Assembly of First Nations . ＊67： Office of the Prime Minister, Prime Minister Justin Trudeau’s Address to the 72th Session of the United Nations General Assembly（Ottawa：Office of the Prime Minister, 2017）, online：Office of the Prime Minister . ＊68： Liberal Party of Canada, Real Change：A Plan for a Strong Middle Class（2015） at 42, online：Liberal Party of Canada . ＊69： Joanna Smith,“Canada will implement UN Declaration on Rights of Indigenous Peoples, Carolyn Bennett says,” The Toronto Star（12 November 2015）, online：. ＊70： Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1st Sess, 42nd Parl, 2016（1st reading in the House of Commons 21 April 2016）, online：Parliament of Canada ；John Paul Tasker,“Liberal government backs bill that demands full implementation of UN Indigenous rights declaration,” Canadian Broadcast Corporation（21 November 2017）, online：. ＊71： Bill C-262, supra note 70 at Preamble. ＊72： New Democratic Party, Building the Country of Our Dreams：Tom Mulcair’s Plan to Bring Change to Ottawa （2015） at 36, online：New Democratic Party . ＊73： Leyland Cecco,“Canada indigenous leaders divided over Trudeau’s pledge to put them first,” The Guardian （18 February 2018）, online：. ＊74： Ibid. ＊75： Emilee Gilpin,“'Paternalistic’ First Nations plan flagged in Trudeau minister’s Kinder Morgan memos,” The National Observer（22 January 2018）, online：. ＊76： John Geddes,“Indigenous lawyers upset over Trudeau’s Supreme Court pick,” MacLean’s（29 November 2017）, online：. ＊77： Indigenous Bar Association,“Indigenous Bar Association once more expresses its disappointment with Prime Minister Justin Trudeau’s failure to nominate an indigenous candidate to the Supreme Court of Canada”（29 November 2017）, online： Indigenous Bar Association . ＊78： Pasco v Canadian National Railway Co, [1986] 1 CNLR 35, 69 BCLR 76 at para 9；R v Sparrow, [1990] 1 SCR 1075, 70 DLR（4th） 385 at para 49 [Sparrow]. ＊79： Beverly McLachlin,“Unity, diversity and cultural genocide：Chief Justice McLachlin’s complete speech,” The Globe and Mail（29 May 2015）, online：. ＊80： Gordon Gibson,“Gordon Gibson：It is bad for democracy when nine unelected people can make law,” National Post（9 June 2015）, online：；Lysiane Gagnon,“McLachlin’s comments a disservice to her court and to aboriginals,” The Globe and Mail（10 June 2015）, online：. ＊81： Constitution Act, 1982, supra note 1.

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＊82： Calder v British Columbia（Attorney General）, [1973] SCR 313, 34 DLR（3d） 145. ＊83： Constitution Act, 1982, supra note 1. ＊84： CED 4th（online）, Aboriginal Law “Aboriginal Title”（III.3.（b）.（v）） at §630 ＊85： Constitution Act, 1982, supra note 1. ＊86： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（vii）） at §425. ＊87： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（ii）.B.1） at §303. ＊88： R v Van der Peet, [1996] 2 SCR 507, 137 DLR（4th） 289 at para 68 [Van der Peet]. ＊89： Ibid at para 68. ＊90： CED 4th（online）, Evidence “Historical Declarations”（XII.6.（g）.（iii）） at §671. ＊91： Van der Peet, supra note 88 at para 49. ＊92： Canada, Indigenous and Northern Affairs Canada, “Aboriginal Rights”（15 Sept 2010）, online：Government of Canada . ＊93： Van der Peet, supra note 88 at paras 29-30. ＊94： Ibid at para 30. ＊95： Canada, Indigenous and Northern Affairs Canada, supra note 92. ＊96： CED 4th（online）, Aboriginal Law “Aboriginal Title”（III.3.（b）.（v）） at § 627. ＊97： Van der Peet, supra note 88 at para 48. ＊98： Ibid at para 41. ＊99： Ibid at para 52. ＊100： Ibid at para 54. ＊101： Lax Kw’alaams Indian Band v. Canada（Attorney General）, [2011] 3 SCR 535, 338 D.L.R.（4th） 193 at paras 44-45. ＊102： Van der Peet, supra note 88 at paras 60-61. ＊103： Ibid at para 65. ＊104： Ibid at para 64；Sparrow, supra note 78 at para 27. ＊105： Van der Peet, supra note 88 at para 73. ＊106： Ibid. ＊107： Ibid at para 55. ＊108： Ibid. ＊109： Ibid at para 59. ＊110： Ibid at para 70. ＊111： Ibid. ＊112： Ibid at para 71. ＊113： Ibid. ＊114： Ibid. ＊115： Ibid. ＊116： Ibid at para 69. ＊117： Constitution Act, 1982, supra note 1. ＊118： CED 4th（online）, Aboriginal Law “Métis”（III.1.（b）.（ii）） at §462. ＊119： R v Powley, [2003] 2 SCR 207, 230 DLR（4th） 1 at para 10 [Powley]. ＊120： Ibid at para 14. ＊121： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（ii）.A） at §293. ＊122： Powley, supra note 119 at para 31. ＊123： Ibid. ＊124： Ibid at para 32.

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＊125： Ibid. ＊126： Ibid at para 33. ＊127： Ibid. ＊128： Delgamuukw v British Columbia, [1997] 3 SCR 1010, 153 DLR（4th） 193 at para 165 [Delgamuukw]. ＊129： CED 4th（online）, Aboriginal Law “Aboriginal Title”（III.3.（b）.（v）） at §629. ＊130： Delgamuukw, supra note 128 at para 112. ＊131： Ibid at para 117. ＊132： Ibid at para 115. ＊133： Ibid at para 114. ＊134： Ibid at para 117. ＊135： Ibid at para 128. ＊136： Ibid. ＊137： Ibid at para 129. ＊138： Ibid at para 113. ＊139： Ibid at para 143. ＊140： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（ii）.B.1） at §303. ＊141： Delgamuukw, supra note 128 at para 144. ＊142： Ibid at para 148. ＊143： Ibid. ＊144： Ibid at para 149. ＊145： Ibid. ＊146： Ibid at para 152. ＊147： Ibid at para 153. ＊148： Ibid. ＊149： Ibid at para 154. ＊150： Richard Overstall,“Encountering the Spirit in the Land：‘Property’in a Kinship-Based Legal Order” in John McLaren, A R Buck & Nancy E Wright, eds, Despotic Dominion：Property Rights in British Settler Societies （Vancouver：UBC Press, 2005） at 22. ＊151： Delgamuukw, supra note 128 at para 158. ＊152： Ibid at para 156. ＊153： Ibid. ＊154： Ibid at para 157. ＊155： Ibid at para 158. ＊156： Ibid at para 159. ＊157： Canada, Indigenous and Northern Affairs Canada,“Treaty Rights”（15 Sept 2010）, online：Government of Canada . ＊158： R v Badger, [1996] 1 SCR 771 at para 41, 133 DLR（4th） 324 [Badger]. ＊159： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（iii）.B.2） at §351. ＊160： R v Sioui, [1990] 1 SCR 1025, [1990] 3 CNLR 127 at para 43 [Sioui]. ＊161： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（iii）.B.2） at §351. ＊162： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（iii）.A） at §341. ＊163： Ibid at §342. ＊164： R v Marshall, [1999] 3 SCR 533, 179 DLR（4th） 193 at para 17 [Marshall 2]. ＊165： R v Simon, [1985] 2 SCR 387, [1986] 1 CNLR 153 at para 47 [Simon]. ＊166： CED 4th（online）, Aboriginal Law “Treaty Right”（III.4.（b）.（i）.B） at §759.

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＊167： Sioui, supra note 160 at para 17. ＊168： Ibid at para 46. ＊169： R v Sundown, [1999] 1 SCR 393, [1999] 2 CNLR 289 at para 24. ＊170： Sparrow, supra note 78 at para 68. ＊171： CED 4th（online）, Constitutional Law “Rights of the Aboriginal Peoples of Canada”（X.2） at §687. ＊172： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（iii）.C.1） at §359. ＊173： Quebec（Attorney General） v Moses, 2010 SCC 17 at para 7, [2010] 1 SCR 557 [Moses]. ＊174： Ibid. ＊175： Beckman v Little Salmon / Carmacks First Nation, 2010 SCC 53 at para 9, [2010] 3 SCR 103 [Little Salmon]. ＊176： Moses, supra note 173 at para 7, [2010] 1 SCR 557 [Moses]. ＊177： Little Salmon, supra note 175 at para 12. ＊178： R v Marshall, [1999] 3 SCR 456, [1999] 4 CNLR 161 [Marshall 1]. ＊179： Marshall 2, supra note 164. ＊180： Marshall 1, supra note 178 at para 78. ＊181： Ibid at para 14. ＊182： Sioui, supra note 160 at para 114. ＊183： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（i）.C） at §274. ＊184： Ibid at §272. ＊185： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（iv）.A） at §394. ＊186： Sparrow, supra note 78 at para 37；Badger, supra note 158 at para 41. ＊187： Delgamuukw, supra note 128 at paras 37 and 51；CED 4th（online）, Aboriginal Law “Provincial Legislative Authority and Indigenous Peoples”（II.2.（b）.（iii）.B.1） at §53. ＊188： Sparrow, supra note 78 at para 37. ＊189： R v Gladstone, [1996] 2 SCR 723, 137 DLR（4th） 648 at para 34 [Gladstone]. ＊190： Simon, supra note 165 at para 38. ＊191： Ibid at para 35. ＊192： Sioui, supra note 160 at para 96. ＊193： Buctouche First Nation v New Brunswick, [2014] NBJ No 266, 245 ACWS（3d） 500 at para 18；Saulteau First Nations v British Columbia（Oil & Gas Commission）, 2004 BCSC 92, [2004] 4 CNLR 284 at para 4；Dene Tha’ First Nation v British Columbia（Minister of Energy and Mines）, 2013 BCSC 977, 51 BCLR（5th） 380 at para 94. ＊194： Sparrow, supra note 78 at para 70；CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982”（II.5.（a）.（v）） at §408. ＊195： Badger, supra note 158 at para 73. ＊196： Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 104, [2014] 2 SCR 257 [Tsilhqot’in]. ＊197： Sparrow, supra note 78 at para 70. ＊198： Gladstone, supra note 189 at para 43. ＊199： Tsilhqot’in, supra note 196 at para 104. ＊200： Sparrow, supra note 78. ＊201： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982”（II.5.（a）.（v）） at §409. ＊202： R v Morris, [2006] 2 SCR 915, 274 DLR（4th） 193 at para 53. ＊203： R v Nikal, [1996] 1 SCR 1013, [1996] 3 CNLR 178. ＊204： R v Côté, [1996] 3 SCR 139, [1996] 4 CNLR 26. ＊205： Marshall 1, supra note 178. ＊206： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982”（II.5.（a）.（v）） at §410.

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＊207： British North America Act, supra note 14. ＊208： Nigel Bankes,“Grassy Narrows, Division of Powers and International Law”（6 August 2014）, ABlawg（blog）, online： accessed 10 February 2018 ＊209： British North America Act, supra note 14. ＊210： Canadian Western Bank v Alberta, 2007 SCC 22, [2007] 2 SCR 3. ＊211： Delgamuukw, supra note 128 at para 181. ＊212： Tsilhqot’in, supra note 196. ＊213： Grassy Narrows First Nation v Ontario（Minister of Natural Resources）, 2014 SCC 48, [2014] 2 SCR 447 [Grassy Narrows]. ＊214： CED 4th（online）, Aboriginal Law “Provincial Legislative Authority and Indigenous Peoples”（II.2.（b）.（iii）.B.1） at §53. ＊215： CED 4th（online）, Aboriginal Law “Provincial Legislative Authority and Indigenous Peoples”（II.2.（b）.（iii）.B.2） at §56. ＊216： CED 4th（online）, Aboriginal Law “Indians”（II.2.（a）.（ii）.B） at §12. ＊217： Tsilhqot’in, supra note 196 at para 150. ＊218： Ibid. ＊219： Ibid. ＊220： Grassy Narrows, supra note 213 at para 53. ＊221： CED 4th（online）, Aboriginal Law “Provincial Legislative Authority and Indigenous Peoples”（II.2.（b）.（iii）.B.1） at §53. ＊222： CED 4th（online）, Aboriginal Law “Provincial Legislative Authority and Indigenous Peoples”（II.2.（b）.（iii）.B.2） at §56. ＊223： British North America Act, supra note 14. ＊224： Sparrow, supra note 78 at para 47. ＊225： Tsilhqot’in, supra note 196 at para 97. ＊226： Constitution Act, 1982, supra note 1. ＊227： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（vi）.A） at §413. ＊228： CED 4th（online）, Aboriginal Law “The Duty to Consult”（II.4.（c）.（vi）） at §183. ＊229： CED 4th（online）, Aboriginal Law “Obligations to Indigenous Peoples：Honour of the Crown”（II.4.（c）.（i）） at §114. ＊230： Haida Nation v British Columbia（Minister of Forests）, 2004 SCC 73 at para 16, [2004] 3 SCR 511 [Haida Nation]. ＊231： Ibid at para 41. ＊232： Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41 at para 44, [2017] 1 SCR 1099 [Chippewas of the Thames]. ＊233： Haida Nation, supra note 230 at para 53. ＊234： Little Salmon, supra note 175 at para 61. ＊235： Haida Nation, supra note 230 at para 53. ＊236： Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 44, [2010] 2 SCR 650 [Rio Tinto]; CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.4.（c）.（v）） at §176. ＊237： Haida Nation, supra note 230 at para 35. ＊238： Ibid at para 39；CED 4th（online）, Aboriginal Law “The Duty to Consult”（II.4.（c）.（vii）.A） at §191. ＊239： Rio Tinto, supra 236 at para 54. ＊240： Haida Nation, supra note 230 at para 39；CED 4th（online）, Aboriginal Law “The Duty to Consult”（II.4.（c）.（vii）. A） at §190.

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＊241： Delgamuukw, supra note 128 at para 168. ＊242： Taku River Tlingit First Nation v British Columbia（Project Assessment Director）, 2004 SCC 74 at para 40, [2004] 3 SCR 550 [Taku River]. ＊243： Haida Nation, supra note 230 at para 47, [2004] 3 SCR 511. ＊244： Mikisew Cree First Nation v. Canada（Minister of Canadian Heritage）, 2005 SCC 69 at para 54, [2005] 3 SCR 388. ＊245： Haida Nation, supra note 230 at para 44. ＊246： Ibid at para 42；Taku River, supra note 242 at para 22. ＊247： Delgamuukw, supra note 128 at para 168. ＊248： Ibid at para 48. ＊249： Rio Tinto, supra note 236 at para 37. ＊250： Clyde River（Hamlet） v Petroleum Geo-Services Inc, 2017 SCC 40 at para 39, [2017] 1 SCR 1069；Chippewas of the Thames, supra note 232；CED 4th（online）, Aboriginal Law “The Duty to Consult”（II.4.（c）.（xi）.A） at §249. ＊251： Sparrow, supra note 78 at para 64. ＊252： Delgamuukw, supra 128 at para 161. ＊253： Sparrow, supra note 78 at para 71. ＊254： Tsilhqot’in Nation, supra note 78 at para 82. ＊255： Delgamuukw, supra note 128 at para 165. ＊256： CED 4th（online）, Aboriginal Law “Section 35 of the Constitution Act, 1982 ”（II.5.（a）.（vi）.C） at §420. ＊257： Sparrow, supra note 78 at para 75. ＊258： Ibid at para 59. ＊259： Guerin v R, [1984] 2 SCR 335, [1984] 6 WWR 481 at para 79. ＊260： Constitution Act, 1982, supra note 1. ＊261： Sparrow, supra note 78 at para 62. ＊262： Ibid at para 82. ＊263： Ibid at para 83. ＊264： Tsilhqot’in, supra note 196 at para 86. ＊265： Ibid at para 87. ＊266： Ibid.

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執筆者紹介

Matthew Warren Juris Doctor candidate, University of Calgary Education：University of Calgary, Faculty of Law, Juris Doctor candidate（2020） Queen’s University, Bachelor of Sciences（Honours）, Specialization in Life Sciences Experiences：UniFirst Canada（October 2013～September 2015）：・District Service Manager & Account Representative Canon Canada（July 2012～May 2013）：・Sales Representative Interests：Scuba Diving, Target Shooting, Soccer, Hiking, Skiing and Kayaking

Brady Chapman Juris Doctor candidate, University of Calgary Education：University of Calgary, Faculty of Law, Juris Doctor candidate（2020） University of Ottawa, Faculty of Arts, Honours Bachelor of Arts with a Major in Philosophy and Major in Communications（2017） Experiences：MLT Aikins LLP（2018～now） Natural Resources Canada, Office of the Chief Scientist（2015～2017） University of Ottawa, Academic Writing Help Centre（2015～2016） Interests：Hockey, Volleyball, Squash, Camping, Hiking and Guitar

Kenryo Mizutani（水谷健亮） Senior Coordinator, General Coordination Department, Japan Oil, Gas and Metals National Corporation Visiting Scholar, Canadian Institute of Resources Law Juris Doctor candidate, University of Calgary Education：University of Calgary, Faculty of Law, Juris Doctor candidate（2020） London School of Economics and Political Science（LSE）, Master of Public Administration with Distinction in International Development（2012） Boston University, Bachelor of Arts, summa cum laude, in Economics and International Relations with a Minor in German（2010） Free University of Berlin, Study Abroad Program（summer 2007） Experiences：Japan Oil, Gas and Metals National Corporation（2012～now）・General Coordination Department ・Overseas Exploration Division, Exploration Department, Oil & Gas Upstream Technology Unit ・Strategic Planning Division, General Coordination Department Professional Affiliation：Association of International Petroleum Negotiators（AIPN） Interests：Aikido, Foreign Languages, Hiking, Squash and Traveling

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33 石油・天然ガスレビュー

Indigenous Peoples of Canada and Their Rights in the Modern Jurisprudence an Overview カナダ先住民の法的地位と権利：カナダ 最高裁判決を踏まえた最近の動向

Indigenous Peoples of Canada and Their Rights in the Modern Jurisprudence an Overview カナダ先住民の法的地位と権利：カナダ最高裁判決を踏まえた最近の動向