Developments in Aboriginal Law: The 2008-2009 Term

Document Type


Publication Date



Supreme Court of Canada, Aboriginal Law Judgements, R v Kapp, Canadian Charter of Rights and Freedoms, Ermineskin Indian Band and Nation v. Canada, Fiduciary Duty, Fishing, Licences, Equality, Royalties, Trust


There were two Aboriginal law judgments released by the Supreme Court during the 2008-2009 term. The first, R. v. Kapp, involved a program under which Aboriginal organizations were issued licences to engage in commercial fishing during periods which were closed to other fishers. This program was challenged as violating the equality provisions of the Canadian Charter of Rights and Freedoms, and the Court considered whether the program was protected under section 15(2) or section 25 of the Charter. In its reasons, the Court unanimously cast off the approach to equality claims that had been developed based upon Law v. Canada (Minister of Employment and Immigration), and instead refreshed the approach which had been proposed in Law Society of British Columbia v. Andrews. The Court also interpreted section 15(2) as a provision that can stand alone, and ground a complete defence to equality-based claims against ameliorative programs. Only Bastarache J. substantively considered the section 25 argument, and in doing so provided the first full interpretation of this provision by this Court. The second judgment, Ermineskin Indian Band and Nation v. Canada, also required the Court to address questions about equality rights. However, the case was centrally about determining the nature of the duties the Crown has when it holds oil and gas royalties in trust for First Nations. The Court had to consider the interplay of several statutes, and their impact on common law fiduciary and trust obligations. In their unanimous reasons, the Court found that in some circumstances the Crown may have the common law obligations of a trustee to a First Nation, but that these obligations, as well as the duty to avoid conflicts of interest, can be narrowed or exonerated by legislation.