Реферат: Canadian Constutional Law Supreme Court Reports Essay

Canadian Constutional Law (Supreme Court Reports) Essay, Research Paper

In a society that is governed by laws no one person can be expected toknow them all and how to interpret them. In Canada we have a group of judgesthat sit on a bench that interpret the laws and rule on cases. This groups ofjudges is called the Supreme Court of Canada. This essay will deal with fourcases that this body of government decided to have the final ruling on. The firstcase is Her Majesty The Queen versus John Sundown. The second case isBlueberry River Indian Band versus Canada (Department of Indian Affairs). These two cases are about the same topic that is dealt with many times overagain in our society and that is land rights. The next two cases that we will dealwith are Canadian Pacific Ltd. versus Matsqui Indian Band and Union of NewBrunswick Indians versus New Brunswick (Minister of Finance). These nexttwo cases deal with taxation and the Natives right to either be taxed or to tax. John Sundown is a member of a Cree First Nation that is part of the treatyreferred to as treat number six. John cut down some trees in a provincial parkand used them to build a log cabin. This goes against the provincial parksregulations that prohibit the construction of a temporary or permanent dwellingon park land without permission. One of the entitlements of treaty six gives themember the right to hunt for food on land that is occupied by the provincialcrown this includes the provincial parks. John testified that he needed the cabinwhile hunting, both for shelter and as a place to smoke fish and meat and to skinpelts. Evidence at the trial was provided that stated that it was a long time bandpractice to conduct expeditionary hunts in an area now included within thepark. In order to carry out this hunting practice shelters were built at the huntingsites. The shelters were originally moss covered lean-tos and latter tents and logcabins were used. In 1930, the Natural resources transfer agreement between theprovince of Saskatchewan and the federal government modified treaty six to huntcommercially but expanding the geographic areas in which Indians have thetreaty right to hunt for food. John was convicted of building a permanentstructure on provincial park without permission. The summary conviction appealcourt quashed the appeal. The court of appeal agreed with their decision. Whichthen meant that the casse was sent to the Supreme Court of Canada which herdall the evidence and found that the appeal should be dismissed. The reasons forthis decision are stated as. A hunting cabin is a reasonable use for the FirstNations right to hunt in their traditional style. This use of the cabin is traditionalto the First Nations style of hunting. The small log cabin is an appropriate shelterfor expeditionary hunting in today s society. By building a permanent structurelike the log cabin, John was not asserting a property interest in park land. Treatyrights, like aboriginal rights, must not be interpreted as if they were common lawproperty rights. Any interest in the hunting cabin is a collective right that isderived from the treaty and the traditional expeditionary method of hunting. Thiscabin belongs to the band as a whole group not just to the one member, JohnSundown, or any other individual that is part of the band. There are alsolimitations on permanency implied within the right itself. Provincial legislationthat relates to conservation and that passes the justificatory standard that is dealtwith in the sparrow case which could validly restrict the building of the huntingcabin. Also there must be compatibility between the crowns use of the land andthe treaty right claimed. The third limitation on the treaty right to hunt is found inthe term of the treaty that restricts the right to hunt on lands that are not requiredor taken up for settlement. Neither the second or the third limitations apply tothe Sundown case. With the realisation that the Crown is not arguing on thegrounds of conservation, the issue of weather they can be justified under thesparrow test is not to be considered for this appeal. Under s. 88 of the IndianAct, all provincial laws of general application apply to Indians subject to theterms of any treaty. Since the regulations in issue would conflict with treat six,which permits the respondent to build a cabin as an activity reasonably incidentalto his right to hunt, they are beside the point to him under s. 88. Some factual information on John Sundown. He is a member of theJoseph Bighead First Nation which is a member of the group that signed treatynumber six. In 1992 Mr Sundown cut down 25 mature white spruce trees inMeadow Lake Provincial Park. He built his log cabin with these trees and it wasapproximately thirty feet by forty feet. He broke Parks regulations number sixwhich states that you are prohibited from both the construction of a temporary orpermanent dwelling on park land without permission. The next case deals with the surrendering of land from a First Nation to thegovernment. In 1916 the Beaver Band of Indians entered into a treaty with theCrown. In exchange for surrendering aboriginal title, the Band was given aparcel of land in British Columbia. The Band was nomadic, subsisting throughtrapping and hunting. The reserve was used as its site for its summercampground. In the winter, the band trapped further north. In 1940, the bandsurrendered the mineral rights on its reserve to the Crown, in trust to lease for itsbenefit. At the end of world war two, the federal government instituted aprogram under which agricultural land was made available to veterans forsettlement. The band was not using the reserve land for farming and afterconsiderable discussion agreed in 1945 to surrender the reserve to the crown so itcould sell or lease it to interested parties. The Department of Indian Affairs thentransferred the reserve land to the Director of the Veterans Land Act (DVLA) for70,000 dollars in march 1948. Part of that sum was later used by the Departmentof Indian Affairs (DIA) to purchase other lands for the band closer to its traplines. The DVLA also obtained the mineral rights because they had not beenreserved from the 1948 transfer. In the same year gas was discovered near theformer reserve and in 1949 oil companies expressed interest in exploring the landfor oil and gas. Between 1948 and 1956 the land of the former reserve was soldto veterans. In 1976 oil and gas were discovered and the revenues from thisdiscovery went to the veterans or their assigns. In 1977 the Beaver Band wasdivided into the Blueberry River and Doig River Indian Bands. That same year aDIA officer found out how the Beaver Band had lost the mineral rights andinformed the appellant bands. The two Bands started their action on September1978 claiming damages from the crown for allowing it to make an improvidentsurrender of the reserve and once surrendered for disposing of it under value.

They also claimed damages for permitting the transfer of the mineral rights to theDVLA and also the veterans. In the federal court, trial division, the trial judgedismissed the claims except for the sale of the surface rights to the DVLA whichhe found to be under value. He held however that the appellants action wasbared by the thirty year limitation period under the British Columbia limitationsact. The majority of the federal court of appeal dismissed the appellants appealand the crowns cross appeal on the issue of sale under value. At this point theappeal went to the Supreme Court of Canada and they decided that the appealand the cross appeal should be allowed. It is stated that the appellants have not established that the Crownwrongfully failed to prevent the surrender of the reserve in 1945. Under theIndian act of 1927 the band had the right to decide weather or not to surrender itsreserve and its decision was to be respected. The Crowns obligation was limitedto preventing exploitative bargains. The Crown could refuse to consent to thesale if it thought that the band s decision was foolish. The court decided that thesurrender of the mineral rights did not amount to anything that was exploitive. The duty of the crown was maintained and did not exploit the Indian Band andtherefor the sale was valid and there is nothing the Band can do to change that. These two cases are different in there outcomes but show how theCanadian Supreme Court works in ensuring the rights of many people who allwant the same part of the package. I believe that the findings for the cases werewell decided by the different people in charge and when a ruling is to be sentdown there is no one group that gets exploited. In the end it is interesting to seehow our legal system interprets the rules that have been around longer than evanthis country. The next two Cases that we will explore deal with the Natives rights tocreate there own tax system and who to tax. The next case that we can look at is Canadian Pacific Ltd. versus MatsquiIndian Band. Amendments to the Indian Act enabled First Nations bands topass their own by-laws for the levying of taxes against real property on reservelands. The appellant bands each developed taxation and assessment by-lawprovided for the appointment of Courts of Revision to hear appeals from theassessments, the appointment of an Assessment Review Committee to hearappeals from the decisions of the Courts of Revision and, finally, and appeal onquestions of law to the Federal Court, Trial Division from the decisions of theAssessment Review Committee. The other bands provided for a single hearingbefore a Board of Review, with an appeal to the Federal Court, Trial Division. All the by-laws provided that members of the appeal tribunals could be paid, butdid not mandate that they indeed be paid, and gave no tenure of office so thatmembers might not be appointed to sit on future assessment appeals. Membersof the bands could be appointed to the tribunals. The appeals were heard concurrently at all levels and turned on essentiallyidentical facts. Each appellant sent the respondent, Canadian Pacific Limited(CP), a notice of assessment in respect of the land forming its rail line which ranthrough the reserves. The Matsqui Band also sent a notice of assessment to therespondent, Unitel Communications Inc., which laid fibre optic cables on the CPland. The respondents commenced an application for judicial review in theFederal Court Trial Division, requesting that the assessments be set aside. CPclaimed that its land could not be taxed by the appellant bands because itpossessed fee simple in the rail line and the rail line therefore formed no part ofthe reserve lands. The appellants brought a motion to strike the respondents application for judicial review on the grounds that, the application was directedagainst a decision which could not be the subject of judicial review because of aneventual right of appeal to the Federal Court, Trial Division or, alternatively, theassessment by-laws provided for an adequate alternative remedy- an eventualright of appeal to the Federal Court, Trial Division. The motions judge acceptedthe second of these arguments and struck out the respondents application forjudicial review. The Federal Court of Appeal allowed an appeal from thisdecision, set it aside and dismissed the appellants motion to strike. At issue waswhether the motions judge properly exercised his discretion to strike therespondents application for judicial review, thereby requiring them to pursuetheir jurisdictional challenge through the appeal procedures established by theappellant bands. The determination of whether or not the land was in thereserve was not at issue. The next case that was herd dealt with taxation as well the case isreferenced as Union of New Brunswick Indians versus New Brunswick (Ministerof Finance). New Brunswick s Social Services and Education Tax Act levies atax on items sold for consumption at the time of the sale. In 1993, a provisiongiving status Indians an exemption from paying provincial sales tax on goodspurchased off-reserve for on-reserve use was repealed so that only goods andservices purchased on reserve lands or delivered there by the vendor were salestax exempt. The respondents brought a test case involving items for personal useand consumption which had been purchased by Indians off the reserve for use onthe reserve. The trial judge concluded that s. 87 of the Indian Act, whichexempts goods on reserves form taxation, applies only to property actuallysituated on a reserve. A majority of the Court of Appeal reversed this decision. At issue here is whether New Brunswick Indians were required to pay provincialsales tax on goods purchased off the reserve for consumption on the reserve. The constitutional question queried whether, if as a matter of statutoryinterpretation s. 87 of the Indian Act prohibits taxation of tangible personalproperty purchased off-reserve, New Brunswick s Social Services and EducationTax Act was tendered inoperative to the extent of the inconsistency with s. 87. The court found appeal should be allowed., New Brunswick s SocialServices and Education Tax Act is not inconsistent with s. 87 of the Indian Actbecause that section does not prohibit taxation in respect of tangible personalproperty purchased off-reserve even if destined for use on-reserve. The previous two cases we can see how it is getting to the point of Indidnself government. The ideas on taxation are part of a government ability and bygiving the right to taxation such as in the first case our government is slowlybecoming more pron to the idea of self government. In the end we can see how these two cases are different from the first twothat we talked about. They both deal with Native issues and all cases dealt withthe Indian Act as well as the Constitution Act but all four cases were dealt withon individual basis and also different years. This proves how our court has theability to interpret the many different laws on an individual basis without any prejudged conceptions and how well our system can work.

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