NCA Constitutional Law 1

R v Morgentaler:
Application of Principles:
To determine Pith and Substance, look first to purpose, then look at the legal/practical effect
This case can be seen as an authority on the notion that you can look to extrinsic evidence as well as the four corners of the legislation.
(i) Four Corners Test
(from p. 82) Through analysis of the legal effect of the legislation, the central purpose of the legislation was the restriction of abortion as a socially undesirable practice which should be suppressed or punished.
The legal effect is the effect on the rights and freedoms of those to which the legislation is directed.
(ii) Outside the Four Corners
(from p. 84) A majority of the Court of Appeal held that the legislation effectively duplicated that under s. 251 (now 287) of the Criminal Code.
The more exact the reproduction, the stronger the inference that this is the dominant purpose of the enactment
As well, the fact that this section of the Criminal Code strengthens the argument that the present legislation is a duplicate of s. 251, perhaps it was meant to fill that gap?
Also, the Court looked to excerpts from Hansard to determine the purpose of the legislation as outlined in the Parliamentary debates. The Court held that the debates showed that the legislation was directed at the appellant’s clinics, and that it was viewed as a public evil that must be eliminated. The respondent’s argument that the legislation was directed at preventing privatization of health care and a potential two-tier system was absent from the Parliamentary debate transcripts.
As well, the SCA dismissed the argument that allowing free-standing abortion clinics would lead to an increase in the cost of abortions to the province. The appellant argued that, using Dr. Malcom’s evidence, that a reduction in the number of abortions performed would increase the cost per abortion, but the Court argued that the appellant failed to prove that the decrease in the no. Of abortions performed would be large enough to cause this.

Reference RE: Employment Insurance Act:
To identify the pith and substance, look at the “living tree” doctrine from Reference Re: Same-Sex Marriage
In instances of dispute regarding the jurisdiction of a given law, the court must refer to the framers’ description of the power in order to identify its essential components, and must be guided by the way in which courts have interpreted the power in the past
This is because the task of maintaining the balance between federal and provincial powers falls primarily to governments (from p 100)
First, determine the pith and substance or dominant characteristic of the impugned provisions before identifying the head of power to which the matter relates.
To analyze the pith and substance, have to look to the purpose (mischief approach) and the effect of the law
In this case, the purpose of the extension of maternity benefits to women were to “provide women in this position with income replacement benefits” (from p. 104)
The purpose of this legislation was not just maternity benefits, but instead employment insurance as a whole
In this case, the effect of the provision is to “enable insured pregnant women to have access to financial resources at a time when they are not receiving their employment income” (from p. 105)
Therefore, the primary effect is to replace, in part, these women’s employment income, and the secondary effect is “to enable them to prepare for childbirth, to recover physiologically, and to have a period of time to take care of their families”
Therefore, the pith and substance of this provision was to “replace the employment income of insured women whose earnings are interrupted when they are pregnant” (from p. 106)
Therefore, the pith and substance of the provision are consistent with the Federal jurisdiction over unemployment insurance (from p. 115)

Citizens Insurance Company v Parsons:
Step 1: have to look at whether the Act impeached in the present case falls within any of the classes enumerated as exclusively Provincial domain under s. 92.
If the answer to this is “no”, then no other question needs to be answered.
The Court rejected the appellants’ claim that the word “civil rights” was intended to have a narrow meaning per s. 94 of the Constitution.
He looked at the whole constitution – s. 94 – “property and civil rights” meant the same thing in this section as well as in s.92 – under s. 94, ON, NS, and NB have to have a uniformity of laws, but if you take the narrow definition of this term, then it would include Quebec (but QC is excluded from this – civil law system)
Inconsistent – s. 94 is meant to protect QC’s civil law system
Therefore, civil law has to include contracts
Step 2: It is only when the Act prima facie falls within one of the classes in s. 92 that one needs to determine whether it also falls into one of the enumerated classes of s. 91
The only section of enumerated Federal powers which could possibly apply is s. 91 (2) – the regulation of trade and commerce
To determine whether the Ontario Act could possibly fall under this category, it must be determined (1) whether insuring buildings against fire is a “trade”
It was held that contracts of indemnity cannot be considered trade contracts
Therefore, the next part is to determine (2) whether the words “trade and commerce” were intended to have a broad or narrow meaning
The Court argued that the terms “trade and commerce” could potentially be interpreted in a really wide fashion, however, it was held that if this broad interpretation was intended by the framers, then the following sections demarcating further powers along the lines of trade and commerce would not have been necessary.
Also, p. 126 – the fact that it was incorporated by the Feds is irrelevant – Sir M. Smith says that an incorporation doesn’t create jurisdiction – only allows a company to do business. If one were to allow the argument that it does, then it would wipe out provincial jurisdiction over property and civil rights.
Step 3: If the answer to this is also “yes”, then it has to be determined by the court (from p.124) “whether the power of the provincial legislature is or is not thereby overborne”
In this case, the answer was “no”, so the SCC didn’t go any further

GM of Canada v National Leasing
Step 1: is the Act valid under the federal trade and commerce power per s. 91(2) of the Constitution yes
Therefore, in CN Transportation, it was suggested that Parsons had established three important principles in interpreting s. 91(2):
(i) It does not correspond to the literal meaning of the words “regulation of trade and commerce
(ii) It includes both arrangements regarding international and interprovincial trade as well as the general regulation of trade affecting all of Canada
(iii) It does not extend to regulating the contracts of a specific business or trade
Laskin CJ outlined three checkpoints for validity under the second branch of the trade and commerce power above (From Vapor Canada case):
1. The impugned legislation must be part of a general regulatory scheme
2. Must be monitored by the continuing oversight of a regulatory agency
3. Must be concerned with trade as a whole rather than with a particular industry.
Therefore, the SCC used the Vapor Canada criteria to determine whether the Act was valid as a trade and commerce power under the second branch above but added two factors:
4. The legislation should be of a nature that the provinces would be constitutionally incapable of enacting
5. The failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country.
Step 2: is s. 31.1 integrated into the CI Act in such a way that it too is intra vires under s. 91(2) yes
1.1. The court must determine whether the impugned provision intrudes on provincial powers, and, if so, to what extent. If YES
1.2. The court must establish whether the act is valid, in cases under the second branch of s. 91(2) this will normally involve the presence of a regulatory scheme and then see if the scheme fits with the Vapor Canada criteria
2.1. The court must see if the provision is sufficiently integrated with the scheme that it can be upheld by virtue of the relationship, despite encroachment on provincial powers. If YES
In this case, the correct way to determine whether it is sufficiently integrated is to see if the provision is functionally related to the general objective of the legislation, and to the structure and the content of the scheme.
Held that it is an “integral, well-conceived component of the economic regulation strategy found in the CI Act
2.2 It is intra vires Parliament as an exercise of the general trade and commerce power.

Saskatchewan v Rothmans
The doctrine of federal legislative paramountcy dictates that where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency
First, under the doctrine of federal paramountcy, have to look at if it is valid federal/provincial law:
Federal? Yes – Criminal law
Provincial? Yes – Property and Civil Rights 92(13), Local matters 92(16)
But note that it can’t be under 92(15), since it does not create powers, but allows for an enforcement mechanism for laws that are valid under enumerated provincial powers
Second, there are two guiding principles of determining whether s. 6 is inoperative:
Step 1: Can a person simultaneously comply with s. 6 of Sask. legislation and s. 30 of Fed legislation?
Yes – one can either admit no one under 18 years of age to the premises or not display tobacco products
Step 2: Does s. 6 of Sask legislation frustrate Parliament’s purpose in enacting s. 30 of Fed legislation?
Therefore, what is the purpose?
Therefore, it does not frustrate the purpose of Parliament
The Fed legislation was to address a national public health problem (on a general scale) and to circumscribe the TA’s general prohibition on promotion of tobacco products set out in s. 19 (on a more specific scale).
The Sask legislation does not frustrate this; instead it further protects young people from tobacco diseases and restrict access of young people to tobacco.

RJR Tobacco v Canada
Step 1: Is the Pith and Substance of the Act the regulation of the criminal law?
Therefore, it was held that the Act was in pith and substance criminal law
Criminal law power, remember = prohibition + penalty + valid public purpose
Step 2: Does the Act also have an underlying criminal public purpose as described in the Margarine Reference?
Sub Step 1: Look at the legislation itself
In these cases, it was held the evil targeted by Parliament in this Act is the detrimental health effects caused by tobacco consumption (p. 157)
Sub Step 2: Look at extrinsic materials, such as parliamentary debates, related legislation, and evidence of the “mischief” to which the legislation is directed (OK per Morgentaler to look at extrinsic evidence)
Evidence was convincingly produced that tobacco consumption is widespread in Canadian society and poses great health risks.
In the Margarine Reference, Rand said that the protection of health is one of the ordinary ends served by the criminal law, and that the criminal law may validly be used to safeguard the public from any injurious or undesirable effect”
Appellants Argument Parliament cannot criminalize an activity ancillary to an “evil” if it does not criminalize the “evil” itself.
This is contradicted by the SCA’s findings in the Prostitution Reference and Rodriguez v. British Columbia
In both of these cases it was upheld constitutionally by the SCC legislation that criminalized an ancillary activity without criminalizing the underlying “evil” as well.

Reference Re: Firearms Act
Step 1: What is the pith and substance of the law?
To determine the pith and substance,(1) what is the purpose of the enacting body, and (2) what is the legal effect of the law?
(1) It is often stated in the legislation, but can also be determined (per Morgentaler) through reference to extrinsic materials as well as by considering the “mischief” Parliament sought to remedy
Since it is unclear, SCC looks to extrinsic materials
(2) It involves considering how the law will operate and how it will effect Canadians
Therefore, the pith and substance of the Act is a concern for public safety.
Step 2: It has to be remembered, per General Motors v CNL, law mainly in relation to the jurisdiction of one level of government may have incidental effects upon the jurisdiction of the other.
In determining whether it falls within s. 91(27) of the Fed Criminal Power, the three criteria from RJR are applied (valid criminal law purpose backed by a prohibition and a penalty)
(1) Criminal law purpose?
Per Margarine Reference, it is Crim law if it is for i.e. Public peace, order, security, health, morality.
Pith and substance of the Act is public safety, and is thus within the criminal law purpose
(2) Prohbition?
S. 112 of the Act prohibits the possession of a firearm without a registration certificate
S. 91 of the CC prohibits the possession of a firearm without a licence and a registration cert.
(3) Penalty?
S. 115 of the Act and s. 91 of the CC attach penalties to this prohibition

Re: Anti- Inflation Act
Step 1: Is this Crisis legislation (p. 184)? If it is crisis legislation, than it is OK per the POGG power
Sub Step 1: Did the Act itself belie the federal contention (that it was crisis legislation) because of the form of the Act and, in particular, because of the exclusion of the provincial public sector from its scope?
As well, this view that it is, in fact, crisis legislation is furthered by the fact that p. 189 (Ritchie) it is limited to dealing with critical conditions of inflation and is legislation of a merely temporary nature
Sub Step 2: Is the federal contention assisted by the preamble of the statute?
Therefore, the Court is first looking at the legislation itself to determine the purpose/
Sub Step 3: Does the extrinsic evidence put before the Court, and other matters of which the Court can take judicial notice without extrinsic material to back it up, show that there was a rational basis for the Act as a crisis measure?
Therefore, the Court is now looking at extrinsic evidence (okay per Morgentaler)
The Court, however is careful to say that the use of extrinsic material is only to go so far as to show that there is a “rational basis for the legislation which it is attributing to the head of power invoked in this case” (p. 187)
Sub Step 4: Is it a tenable argument that exceptional character could be lent to the Act as rising beyond local/Provincial concerns cause it was a necessary measure to fortify action in other areas of federal authority, such as monetary policy?
The SCC held that the policy was a valid extension of Parliamentary jurisdiction over other areas of finance.

R v Crown Zellerbach
In Labatt Breweries, Estey J summed up the POGG doctrine as having three possible forms: (p 212)
1. Cases “basing the federal competence on the existence of a national emergency”
2. Cases dealing with subjects that (i) did not exist at the time of Confederation and (ii) cannot be classified as a merely local or private nature – i.e. aeronautics and radio
3. Cases dealing with subjects that go beyond a local or provincial interest and must therefore be a concern of the Dominion as a whole under the residual power in s. 91.
In this case, Le Dain J outlines, therefore, the criteria for the national concern doctrine of the POGG power (p. 213)
1. It is separate and distinct from the national emergency doctrine of the POGG power, which allows the Feds to constitutionally create temporary legislation
2. It applies both to matters that did not exist at the time of Confederation and to matters which were originally matters of a local or private nature but, in absence of national emergency, become matters of national concern
Therefore, “newness” is not necessarily a criteria
3. Must have a singleness, distinctiveness, and indivisibility that clearly distinguishes it from provincial matters and impacts provincial jurisdiction on a scale that can be reconciled by the distribution of powers in the Constitution
Sub Step 1: Is it indivisible? Look at extrinsic materials (OK per Morgentaler)
Therefore, can the subject matter be further divided? If so, possibly not
Le Dain also argues that if you cannot contain the subject matter, then it has to be passed under the emergency powers
If it is going to be passed under national concern, it has to be a topic that can be defined and contained
4. In determining (3), it is relevant to consider the effects on extra-provincial interests if the province fails to deal effectively with the control or regulation of the intra-provincial aspects of the matter in question (“provincial inability test”)
This can be restated as such (p. 215) “because of the interrelatedness of the intra-provincial and extra-provincial aspects of the matter...it requires a single or uniform legislative treatment”
However, note that the residual nature of Parliamentary powers means that, in the case of 4. The only part that would fall within Federal competence is that which is beyond provincial control.

Guerin v The Queen
Step 1: What is the nature of the relationship between Indians and the Crown?
Although it is defined by the courts as a fiduciary duty , not a trust
Whether the Crown is a fiduciary depends on whether the Indian interest in the land is inalienable except upon surrender to the Crown
Step 2: If it is a fiduciary relationship, have to further define the existence of Indian Title
Calder v A-G for BC: Indian title is a legal right derived from the Indians’ historic occupation and possession of their tribal lands
Step 3: Defining the nature of Indian Title
(p. 235) Indians have a legal right to occupy and possess certain lands, the ultimate title to which is the Crown.
Although this does not amount to beneficial ownership, the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians
These two aspects go together – the Crown’s original purpose in declaring the Indians’ interest to be inalienable other than to the Crown was to facilitate the Crown’s ability to represent the Indians in dealings with third parties
Step 3: What is the Crown’s fiduciary obligation to Indians re: Reserve land?
Successive Fed statutes including the present IA have all provided for the general inaliability of Indian reserve land except upon surrender to the Crown, this is ss. 37-41 of the Indian Act
This is clearly to put the Crown between Indians and prospective buyers/lessees so as to prevent the Indians from being exploited
Therefore, this is a fiduciary relationship – (p. 236) “the hallmark of a fiduciary relationship is that the relative legal positions are such that one party is at the mercy of the other’s discretion”
Step 4: What is the nature of the breach of the fiduciary obligation?
The trial judge found that the Crown’s agents promised the Band to lease the land on certain specified terms, then after surrender obtained the lease on different terms
The obtained lease was much less valuable
Therefore, Dickson J rejects the Crown’s submission that for the purposes of s. 39 a surrender is independent of its terms
P. 239 “After the Crown’s agent had induced the Band to surrender its land on the understanding that the land would be leased on certain terms, it would be unconscionable to permit the Crown simply to ignore those terms”
The existence of such unconscionability is the key to a conclusion that the Crown breached its fiduciary duty. Equity will not countenance unconscionable behaviour in a fiduciary, whose duty is that of utmost loyalty to his principal

R v Sparrow
Therefore, 1. Have to prove an existing Abo right, and 2. That it hasn’t been extinguished. If these are established prima facie then 3. Have to look at whether there is an interference, and 4. Whether the interference is justified
1. is clear that the rights to which s. 35(1) applies are those in existence when the Constitution Act 1982 came into effect
It does not revive extinguished rights
Also it does not incorporate the specific manner in which it was regulated before 1982 – therefore aboriginal rights are not frozen, static
2. This is because, per A-G for Ontario v Bear Island Foundation, “the onus of proving that the Sovereign intended to extinguish the Indian title lies on the respondent and that intention must be clear and plain”
They could be extinguished up until 1982
4. If so, can the state justify the interference?
- onus is on the state
- Consider: valid legal objective? Safeguard priority for Abo interest? Minimal infringement? Fair compensation? Consultation?
Therefore, the framework provided by the SCC is as such:
1. Is there an existing Aboriginal right?
- onus is on challenger
2. Has the Aboriginal right been extinguished?
- onus is on the State is a “clear and plain” expression of intent to extinguish
3. Is the Abo right infringed upon by the state?
- onus is on challenger
- consider: unreasonable? Undue hardship? Denial of preferred means?
4. If so, can the state justify the interference?
- onus is on the state
- Consider: valid legal objective? Safeguard priority for Abo interest? Minimal infringement? Fair compensation? Consultation?

R v Van Der Peet
Elaborates on Sparrow test
1. What test should be used to identify whether something is an aboriginal right per s. 35(1)? (1. In Sparrow test)
In order to be in line with the purpose listed above, the test for identifying the aboriginal rights recognized and affirmed by s. 35(1) must be directed at identifying the crucial elements of those pre-existing distinctive societies
Therefore, we have to look at identifying the practices, customs, and traditions integral to these pre-existing societies
Therefore, the test should be as such: in order to be an aboriginal right the activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the aboriginal group claiming the right
2. What factors should be considered when applying the “Integral to a Distinctive Culture Test”?
1. The court must take into account the perspective of the aboriginal people claiming the right
Note that one of the fundamental purposes of s. 35(1) is the reconciliation of the pre-existence of distinctive aboriginal societies with the assertion of Crown sovereignty
2. As well, it is important to precisely state the nature of the claim being made to determine whether an aboriginal claimant has demonstrated the existence of an aboriginal right before determining whether it is integral
Therefore, in this case the appellant’s claim was the right to sell fish, but not for a commercial purpose – it was on this fact the lower courts misconstrued the right being claimed
In order to properly classify a claim, the court should consider: nature of the action, the nature of the government regulation, statute, or action being impugned, and the practice, custom, or tradition being relied upon
3. The Custom or tradition defined in step 2 must be of “central significance to the abo society in question” (p. 275)
4. The practices, customs, and traditions which constitute abo rights must have continuity with those practices that existed prior to contact
In this case, it was held that pr-contact, the S fished for food, but not for sale. (p. 285) “As was noted above, to constitute an Aboriginal right, a custom must itself be integral to the distinctive culture of the aboriginal community in question; it cannot be simply incidental to an integral custom”
5. The practice, custom, or tradition needs only be distinctive, not necessarily distinct

R v Marshall
Step 1: Look at the wording of the Treaty itself
This is complicated by the fact that the British signed a series of agreements with the M’s in 1760 and 1761, but they weren’t consolidated into a single M treaty
Still, the trial judge was satisfied that the Treaty of Peace and Friendship was sufficient
Therefore, The question is whether the underlying negotiations produced a broader agreement between the Brits and the M, that would protect that appellant’s activities that are the subject of the prosecution
Step 2: Look at extrinsic evidence
The SCC rejects the notion of Roscoe and Bateman JJ.A. which is that “while treaties must be interpreted in their historical context, extrinsic evidence cannot be used as an aid to interpretation, in the absence of ambiguity” (p. 292)
Per Badger case, when looking at a treaty, the Court must look at the context in which it was negotiated, concluded, and committed to writing. This is because treaties, as written documents, record an agreement that was already reached orally but did not always record the full extent of the oral agreement (p. 294)
Therefore, “the bottom line is the Court’s obligation...to choose from among the various possible interpretations of the common intention [at the time the treaty was made] with the one which best reconciles the M interests and those of the British Crown” (p. 295)
Step 3: How do we then interpret the truckhouse clause?
Still, the SCC argues that The promise of access to `necessaries `through trade in wildlife was the key point in looking at the truck houses, and when that right was granted, the mere disappearance of the means by which the right was exercised (truck houses) is not enough to argue that the right is extinguished. (p. 305)
Step 4: these rights have to be restricted in scope
This is because the Crown expresses concern that the recognition of a constitutionally protected right such as trading would create a floodgate for uncontrollable and excessive exploitation of the natural resources(p. 305).
But the fact that trading is restricted to “necessaries”, the SCC argues, implies that it is not necessarily to economic gain or the accumulation of wealth, but just enough to provide for the necessaries of life
Therefore, this is not a commercial right, but rather a right to trade to acquire necessaries
Step 5: Apply the tests to the facts
The SCC used the infringement test in Sparrow:
Unreasonable? Deny the holders of the right the preferred means of exercising it? Impose undue hardship? Note the onus is on the challenger to establish a prima facie infringement
Yes, prima facie infringement
But note that there was no clause in the Regulations that established how to preserve M treaty rights
Because Crown didn’t believe a right existed (p. 308)
The SCC holds that the regulations infringe the appellant’s treaty rights under the Treaties and, unless justified by the Crown, are rendered inoperative
In the absence of any justifications, the appellant is entitled to an acquittal

R v Marshall No 2
5. In any event, what is the scope of regulatory power possessed by the government of Canada for purposes of regulating the treaty right?
Remember that the Badger case extended to treaties the test for justification of a prima facie infringement enunciated in R v Sparrow
Also, the SCC held that this questions is too broad to be capable of a detailed response
The test in Sparrow is as follows:
1. Valid legislative objective?
2. Does the justification coincide with the special trust relationship and the responsibility of the government vis-à-vis aboriginals (remember the fiduciary duty from Guerin)
In looking at this, there are sub tests: Little infringement as possible? Availability of fair compensation? Was the aboriginal group in question consulted with respect to the conservation measures being implemented?
Also, note that regulations that do no more than reasonably define the M treaty right in terms that can be administered by the regulator and understood by the M community that holds the treaty rights to not impair the exercise of the treaty right (instead, remember accommodates it) and therefore do not have to meet the Badger standard of justification (p. 322)
Therefore, only regulatory limits that would bring M catch limits below what would be required for a moderate livelihood have to be justified under the Badger test
Still, in the original case, a majority held that in the absence of such justification, the appellant is entitled to an acquittal
Therefore, there is no need to go further in the analysis

Delgamuukw v BC
1. Do the pleadings preclude the Court from entertaining claims for aboriginal title and self-government?
The trial judge did agree with the respondents that the second factor led to some prejudice, because they would have compiled their defence differently had they known they would be facing communal instead of individual claims
2. What is the ability of this Court to interfere with the factual findings made by the trial judge?
Unless there is a “palpable and overriding error” appellant courts should not substitute their own findings of fact for those of the trial judge (p. 331)
This is meant to protect the autonomy and integrity of the trial process
Therefore, there are two principles that determine how trial courts should properly address aboriginal claims – if these aren’t followed, then appellate intervention may be necessary:
1. Trial courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims; 2. Trial courts must interpret that evidence in the same spirit – must be understood against this background
With regards to 1. There must be a continuity in aboriginal practices (whose origins are pre-contact) for them to constitute an aboriginal right
With regards to 2. The court must give due weight to oral histories which describe aboriginal activities pre-contact
3. What is the content of aboriginal title, how is it protected by s. 35(1) of the Constitution, and what is required for its proof?
The SCC held that aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights
Instead if gives the right to use the land for many activities, not all of which need to be aspects of practices, customs, and traditions which are integral to the distinctive cultures of aboriginal societies (and thus protected by s. 35(1))
However, it must not be irreconcilable with the groups’ attachment to the land
See second step of the proof test below
However, these activities do not constitute the right per se, rather they are parasitic on the underlying title (p. 337)
What the PC meant to say here is that aboriginal title is a sui generis interest in land which has many dimensions
One is inalienability – land held pursuant to aboriginal title cannot be transferred, sold or surrendered to anyone other than the Crown
Another is its source – although aboriginal title was recognized by the Royal Proclamation, it arises from the prior occupation of Canada by aboriginal peoples
Physical occupation is important, since it comes from the common law principle that occupation is proof of possession in law
Another is the fact that it is held communally – can’t be held by individual aboriginal persons
Therefore, when looking at St Catherine’s Milling, along with Guerin, Calder, and Paul cases, aboriginal title can be summarized as such:
Sub Step 1: It encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices (integral)
Sub Step 2:Those protected uses must not contradict the nature of the group’s attachment to the land
Therefore, the test for proof of aboriginal title is as follows:
1. The land must have been occupied prior to sovereignty
Therefore, to establish a claim to aboriginal title, the group asserting the claim must have occupied the lands in question at the time which the Crown asserted sovereignty over the land subject to the title (p. 348)
This is because aboriginal title is a burden on the Crown’s underlying title, but the Crown did not gain this title under it asserted sovereignty over the land in question
2. If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation
Per Van der Peet, it would be next to impossible for an aboriginal group to provide conclusive evidence re: pre-contact practices, customs, and traditions
Although aboriginal title claims only require occupancy pre-sovereignty, the same solution is to be used
The aboriginal group may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to aboriginal title (p. 350)
3. At sovereignty, occupation must have been exclusive
exclusive occupation can occur in title cases even if other aboriginal groups were present or frequented the claimed lands
All that is required is the capacity to maintain exclusive control over the lands
Can be shown in aboriginal law – do other bands/etc need their permission to use the land
Shows intention to have exclusive possession
5. Did the province have the power to extinguish aboriginal rights after 1871, either under its own jurisdiction or through the operation of s. 88 of the Indian Act?
This appeal raises three specific questions:
1. Does the Province of British Columbia, from Confederation until 1982, have primary jurisdiction to extinguish aboriginal rights protected by s. 35(1)?
S. 91(24) of the Constitution Act 1867 gives the Feds jurisdiction to legislate re: “Indians, and lands reserved for the Indians”
It was held in St. Catherine’s Milling that “all lands” encompasses both reserve lands, and lands held pursuant to aboriginal title as well.
Therefore, it can be inferred that the Feds would have the sole jurisdiction to extinguish aboriginal title as well
2. If it didn’t have such jurisdiction, can provincial laws not in pith and substance aimed at extinguishing aboriginal rights do so anyway because they are laws of general application?
provincial laws which single out Indians for special treatment are ultra vires
However, provincial laws of general application apply proprio vigour to Indians and Indian Lands
Examples of such are provincial labour relations legislation, and motor vehicle laws (p. 361)
However, can these laws extinguish aboriginal rights?
Per Sparrow, to extinguish an aboriginal right, there has to be a sufficiently clear and plain intention to extinguish them in the legislation – therefore the provincial government could never extinguish these rights through laws of general application since they could never be specific enough without being ultra vires the Province (p. 362)
3. Can a provincial law, which could not otherwise extinguish these rights, do so through s. 88 of the Indian Act?
However, per Hogg, all s. 88 does is extend the effect of provincial laws of general application that would not apply to Indians and Indian lands because they touch on the core of Indianness per s. 91(24)
For example, a provincial law regulating hunting would touch on this core
However, s. 88 does not negate the fact that there has to be evidence of a clear and plain intention to extinguish aboriginal rights in the Indian Act for it to be able to effectively do so(p. 363)
There is nothing in the language of s.88 which suggests the intention to extinguish Indian rights

Dick v The Queen