The Keewatin Case: “Taking up” Lands under Treaty 3

By: Jennifer Hocking

PDF Version: The Keewatin Case: “Taking up” Lands under Treaty 3

Case commented on: Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48

On July 11, 2014, the Supreme Court of Canada issued its decision in the Grassy Narrows case (also known as Keewatin).  The Court held that the province of Ontario has the power to “take up” lands surrendered under Treaty 3 so as to limit the Ojibway First Nation’s hunting and fishing rights within the Keewatin area of Treaty 3 in Northwestern Ontario.  Based on the Court’s decision in Mikisew, this power is subject to the duty to consult, and, if appropriate, accommodate, First Nations interests (Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69).  This duty is grounded in the honour of the Crown and binds the Province of Ontario in the exercise of the Crown’s powers (Keewatin at paras 50-51).  A potential action for treaty infringement will arise if the taking up leaves the First Nation with no meaningful right to hunt, fish or trap in the territories over which they traditionally hunted, fished, and trapped (Keewatin at para 52). In cases where the taking up of lands by Ontario constitutes an infringement of treaty rights, an analysis based on section 35 of the Constitution Act, 1982 and the Sparrow and Badger decisions will determine whether the infringement is justified (R. v Sparrow, [1990] 1 SCR 1075; R. v. Badger, [1996] 1 SCR 771.)  The doctrine of interjurisdictional immunity does not preclude the Province from justifiably infringing treaty rights (Tsilhqot’in First Nation v British Columbia, 2014 SCC 44, and for an earlier post on the Court’s handling of interjurisdictional immunity in Tsilhqot’in see here).     

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“Putting” Browne v Dunn into Perspective

By: Dylan Finlay

PDF Version: “Putting” Browne v Dunn into Perspective

Case commented on: R v KWG2014 ABCA 124

The century old rule in Browne v Dunn (hereinafter “the rule”) holds that if counsel intends to present evidence contradictory to a witness’s testimony as part of his or her argument, he or she must put this version of events to the witness during cross-examination.  But just how far must counsel go to satisfy this requirement? The Alberta Court of Appeal has recently shed some light on this question.

The rule is summarized in R v Pasqua, [2009] AJ No 702, 2009 ABCA 247: “there is a general duty on counsel to put a matter directly to a witness if counsel is going to later adduce evidence to impeach the witness’ credibility or present contradictory evidence.” The purpose of the rule is well-grounded; witnesses should be given an opportunity to respond to competing versions of events. Applying a rigid interpretation to R v Pasqua, it would appear as if during cross-examination, counsel would have to say the words “I put to you …” before presenting the witness with contradictory evidence. This formal and rigid interpretation of the rule has now been clarified, and a more flexible approach adopted.

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Curious Interactions between the Charter, Contempt Orders, and the Evolution of Section 1

By: Sarah Burton

PDF Version: Curious Interactions between the Charter, Contempt Orders, and the Evolution of Section 1

Case commented on: Alberta v AUPE, 2014 ABCA 197

In Alberta v AUPE the Alberta Court of Appeal reviewed the validity of a civil contempt order issued against the Alberta Union of Public Employees (“AUPE”). While ultimately upholding the order for civil contempt, the unanimous Court of Appeal sizably narrowed its provisions to protect AUPE’s freedom of expression. The decision turned on two issues: the admissibility of televised news reports as evidence, and the constitutionality of court orders that restrict free speech. Of these two issues, the Charter discussion is particularly interesting. The Court of Appeal presented and applied an alternative to the Oakes test, holding that Oakes is ill-suited to challenges that do not involve laws of general application. In addition, the Court curiously failed to consider a critical threshold issue – namely, whether the Charter applied to court orders at all. Thus, Alberta v AUPE not only widens a narrow exception to the Oakes test, it imposes Charter restrictions on contempt orders without discussing its authority to do so.   Continue reading

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Private Health Insurance and Charter Section 7

By: Linda McKay-Panos

 PDF Version: Private Health Insurance and Charter Section 7

Case discussed: Allen v Alberta, 2014 ABQB 184

Over the past few years, various courts across Canada have addressed the ambit of the Charter right to life, liberty and security of the person in the context of access to private health insurance.  Allen v Alberta, 2014 ABQB 184 (“Allen”) is Alberta’s recent case on this issue.

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What Happens When an Insolvent Energy Company Fails to Pay its Rent to a Landowner?

By: Shaun Fluker

PDF Version: What Happens When an Insolvent Energy Company Fails to Pay its Rent to a Landowner?

Decision commented on: Petroglobe v Lemke, 2014 ABSRB 401

The law in Alberta provides an energy company with the right of surface access on private lands to drill for oil and gas.  This access allows the company, among other things, to construct an access road and clear lands for the well site.  In most cases, the company and the landowner enter into a surface lease whereby the company agrees to pay rent in exchange for this access.  In other cases, surface access is governed by a Right of Entry Order issued by the Alberta Surface Rights Board (website) whereby the company obtains access in exchange for the payment of rent.  This case is about what happens when an insolvent company fails to pay its rent.

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Leave to Intervene Denied in an Appeal of an Important Freehold Oil and Gas Lease Case

By: Nigel Bankes

PDF Version: Leave to Intervene Denied in an Appeal of an Important Freehold Oil and Gas Lease Case

Case commented on: Stewart Estate (Re), 2014 ABCA 222

The Freehold Petroleum and Natural Gas Owners Association (FHOA) applied for leave to intervene in the appeal of the Calder or Stewart Estate litigation (for my post on the trial decision see here).  Justice Patricia Rowbotham dismissed the application commenting at the end of her reasons that if FHOA had jurisprudence that it wished to bring to the attention of the Court it could always do so by passing relevant authorities on to the appellants’ counsel.

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Posted in Intervenors and Standing, Oil & Gas | Leave a comment

The ‘Inherent Limit’ Post-Tsilhqot’in: Where Indigenous Law and Land-Use Planning Meet

By: Martin Olszynski

PDF Version: The ‘Inherent Limit’ Post-Tsilhqot’in: Where Indigenous Law and Land-Use Planning Meet

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

The focus of this post, the fourth in a series of ABlawg posts on the Supreme Court of Canada’s Tsilhqot’in decision (see here, here,and here), is the concept of the “inherent limit” pursuant to which Aboriginal title lands “cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to those lands” (Delgamuukw v. British Columbia, [1997] 3 SCR 1010, at para 125).  From conversations with my colleagues here at the law school, there appear to be at least three concerns about this aspect of Aboriginal title law: that it is paternalistic, that it has never been satisfactorily sourced or rooted in indigenous laws (a complaint going back to Delgamuukw), and that it creates uncertainty for development.  In this post, I propose an approach to what the Chief Justice in Tsilhqot’in described as the “negative proposition” (at para 15) that addresses each of these concerns (perhaps especially the latter two), while also addressing a more general concern with respect to Canadian Aboriginal law, which is to say the absence of any role for indigenous laws.

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Striking a Balance: Efficiency and Fairness in an Evolving Justice System

By: Sarah Burton

PDF Version: Striking a Balance: Efficiency and Fairness in an Evolving Justice System

Case commented on: Martin v. Sievers, 2014 ABQB 357 (CanLII)

In Martin v. Sievers, 2014 ABQB 357 (Martin), Master Smart confirmed that lawyers control the flow of relevant documents in an Independent Medical Examination (IME). This persists despite a more efficient mechanism for hired experts to access a party’s full medical record. Martin stands for the proposition that the “cultural shift” towards efficiency in the courtroom cannot sacrifice long-standing quality protections for the justice system (at paras 10, 12). Viewed from an access to justice perspective, Martin held that increasing access should not sacrifice justice in the process. Continue reading

Posted in Access to Justice, Civil Procedure and Evidence | 1 Comment

Today’s Word on the Street – “Consent”, Brought to You by the Supreme Court of Canada

By: Sharon Mascher

PDF Version: Today’s Word on the Street – “Consent”, Brought to You by the Supreme Court of Canada

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

 On June 26, 2014, the Supreme Court of Canada (SCC) granted the Tsilhqot’in Nation a declaration of Aboriginal title over 1,750 square kilometres of its territory.  That the SCC has granted the first ever declaration of Aboriginal title in Canada, in and of itself, makes this a decision of great significance (see Jonnette Watson Hamilton’s post on that issue here). However, through its unanimous decision, the SCC has done much more than this – it has refocused the discussion around the infringement of Aboriginal title away from its current pre-occupation with consultation towards consent.  In this respect the decision is momentous – not only for Aboriginal title holders but for all Canadians.  For this reason, this decision may indeed mark, in the words of Tsilhqot’in Nation Tribal Chair Joe Alphonse, the beginning of a “new Canada” (see here). Continue reading

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Tsilhqot’in: What Happened to the Second Half of Section 91(24) of the Constitution Act, 1867?

By: Nigel Bankes and Jennifer Koshan

PDF Version: Tsilhqot’in: What Happened to the Second Half of Section 91(24) of the Constitution Act, 1867?

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

The Delgamuukw decision of the Supreme Court of Canada, [1997] 3 SCR 1010 was an important decision both on aboriginal title and also on the division of powers under the Constitution Act, 1867- in particular for its robust reading of the “lands reserved” head of s.91(24) and the companion language of s.109 (provincial title subject to “any interest other than that of the province in the same”): see Bankes, “Delgamuukw, Division of Powers and Provincial Land and Resource Law: Some Implications for Provincial Resource Rights” (1998), 32 UBC L Rev 317-351 and Kent McNeil “Aboriginal Title and the Division of Powers: Rethinking Federal and Provincial Jurisdiction” (1998) 61 Sask L Rev 431-465. The Tsilhqot’in decision is also an important decision on both issues; but it will be remembered (if it too does not go the way of Marshall and Bernard, [2005] SCC 43 – read into nothingness as our colleague Jonnette Watson Hamilton points out here) on the division of powers issues as the decision that, in extended obiter dictum (see paras 98 and 126), eviscerated the lands reserved head of s.91(24).

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