Published In

BC Studies: A British Columbian Quarterly

Document Type

Article

Publication Date

2009

Subjects

Aboriginal law; court of appeal; British Columbia

Abstract

This article, one in a collection of articles on the British Columbia Court of Appeal, surveys that court's jurisprudence in the field of Aboriginal and treaty rights. It begins in the 1960s and 1970s with a series of cases that reveal a court confident in its assumption that Aboriginal rights had little bearing on the province. The decisions of the court through the 1970s reflected and consolidated a status quo that had all but ignored Aboriginal rights and title. This would change in the 1980s with a series of remarkable decisions from the court following the constitutional entrenchment of Aboriginal and treaty rights in 1982. These decisions would mark the end of an era in British Columbia when the claims of Aboriginal peoples might give rise to a sense of moral obligation but no legal consequence and, more broadly, they would contribute in important ways to the interpretation of Aboriginal and treaty rights as constitutional rights. In the 1990s, a divided court of appeal played a less prominent role and, in recent years, it has revealed itself much more comfortable in defining the parameters of a process than in determining the content of Aboriginal rights and title. This article also explores the institutional placement of provincial courts of appeal, positioned as they are between trial courts that produce the record of the case and, in the area of Aboriginal and treaty rights, an engaged Supreme Court of Canada that has the final say. An interventionist Supreme Court necessarily reduces the impact of a provincial court of appeal, and many of the lower court's decisions are all but forgotten in the shadow of the Supreme Court's rulings. Nonetheless, in the years following the constitutional entrenchment of Aboriginal and treaty rights in 1982, the British Columbia Court of Appeal became one of the prominent voices in the articulation of these rights. This article divulges that voice, its early reticence, and the diverse strands that emerged within it.

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