Developments in Aboriginal Law: The 2011-2012 Term – Charter Rights, Constitutional Rights, Taxation and Sentencing

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Supreme Court of Canada, Aboriginal Law Judgements, Lax Kw'alaams Indian Band v Canada (Attorney General), Canadian Charter of Rights and Freedoms, Alberta (Aboriginal Affairs and Northern Development) v Cunningham, Bastien Estate v Canada, Dube v Canada, R v Ipeelee, R v Ladue


This year the Supreme Court of Canada released reasons for six major Aboriginal Law cases. In Lax Kw'allams Indian Band v Canada (Attorney General), the Court considered an application for a declaration that a First Nation possessed a constitutionally protected right under section 35(1) of the Constitution Act, 1982 to engage in a general commercial fishery. This application was unsuccessful, as the Court found that the evidence did not support the claim. As well as developing the jurisprudence regarding claims with commercial aspects, this case also provides insight into pleadings and how the subject matter of rights evolves over time. The Court also heard a challenge under the Canadian Charter of Rights and Freedoms, in Alberta (Aboriginal Affairs and Northern Development) v Cunningham. This case considered whether a partial statutory prohibition against individuals who are registered Indians also being members of Metis settlement communities violated equality rights, or the right to life, liberty and security of the person. The Court upheld the legislation, finding that section 15(2) shielded the exclusionary provisions, and that liberty interests were not offended. [...] The Court also heard a pair of taxation cases, Bastien Estate v Canada and Dube v Canada. Each case involved an appeal regarding whether investment income was exempt from taxation pursuant to section 87(1)(b) of the Indian Act. In each case, the Court found the income was indeed exempt. [...] The Court also heard two criminal law cases, R v Ipeelee and R v Ladue. The legal issue was the proper approach to sentencing Aboriginal offenders pursuant to section 718.2(e) of the Criminal Code, and whether this provision applied to sentences for breaching conditions imposed as part of a long-term supervision order. In these cases, the Court both affirmed the approach to sentencing that had been described in R v Gladue, and wrote responses to the scholarly critiques that have been levelled against the relevance of Gladue and section 718.2(e) for reducing the overrepresentation of Aboriginal persons within penal institutions.