Monthly Archives: August 2011

Da’naxda’xw/Awaetlala

Case considered: Da’naxda’xw/Awaetlala First Nation v British Columbia (Environment), 2011 BCSC 620 (“Da’naxda’xw/Awaetlala“)

In the Da’naxda’xw/Awaetlala case, Madam Justice Fisher was faced with a different type of duty to consult and accommodate issue.

While this is a British Columbia case it demonstrates even more the differences between British Columbia Court’s treatment of the duty to consult and accommodate and Alberta Courts (see here). Further it distinguishes the recent Alberta Court of Appeal decision in Tsuu T’ina Nation v Alberta (Minister of Environment), 2010 ABCA 137 on, I would suggest somewhat arguable distinctions (see here). Finally, this decision also distinguishes the Alberta Court of Appeal decision in R v Lefthand, 2007 ABCA 206.

In the Da’naxda’xw/Awaetlala, the petitioners sought judicial review of the Minister’s refusal to recommend a boundary variation of a conservation area that encompassed the First Nation’s traditional lands in order to accommodate a proposed hydro-electric power project (the “Project”). The twist was that the petitioners Da’naxda’xw/Awaetlala First Nation (“First Nation”) and Kleana Power Corporation (“Kleana”), the nominal project proponent, were seeking the variation.

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A New Concord Between Bar and Academy? The Governor General’s Speech to the Canadian Bar Association

PDF version: A New Concord Between Bar and Academy? The Governor General’s Speech to the Canadian Bar Association

It is hardly an everyday occurrence for a viceroy to call publicly for a meeting with law deans to talk about legal education. But that is exactly what happened last week in Halifax. In his speech to the annual conference of the Canadian Bar Association, Governor General David Johnston spoke extremely candidly about what he saw as the challenges facing the legal profession today. He did not mince words; the picture he painted of the reality of legal practice in Canada was not soothing. And he laid a stark challenge before all of us who claim to believe that lawyers are the key to the survival of the rule of law. Continue reading →

First Nation treaty obligations should inform the interpretation of discretionary powers under the Species at Risk Act

PDF version: First Nation treaty obligations should inform the interpretation of discretionary powers under the Species at Risk Act

Case commented on: Adam v Canada (Environment), 2011 FC 962

Woodland caribou are listed as threatened under the Species at Risk Act, SC 2002, c 29 (SARA). The species (and particular herds of the species) are threatened by the fragmentation of their habitat principally due to resource developments including coal mining (see West Moberly First Nation v British Columbia (Chief Inspector of Mines), 2011 BCCA 247), oil and gas exploration, oil sands projects (mining and in situ) and forestry projects, and by the linear land use disturbances often associated with these projects including seismic lines, roads, transmission lines and pipelines. The species is also negatively impacted by increased predation.

But what should we do about this? The answer of governments in Alberta, British Columbia and the federal government seems to be as little as possible and as slowly as possible – for fear that any real action to recover the various herds will be too disruptive of the governments’ shared resource development agendas.

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Greater Rights for Métis Settlements in Alberta?

PDF version: Greater Rights for Métis Settlements in Alberta?

Case considered: Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37

Editor’s note: For pre-SCC ABlawg posts on this case see: Jonnette Watson Hamilton, Interpreting Section 15(2) of the Charter: LEAF’s Intervention in Alberta (Minister of Aboriginal Affairs and Northern Development) v. Cunningham, and Jennifer Koshan, Another Take on Equality Rights by the Court of Appeal, and Evidence of amelioration: What does Kapp require of governments under s.15(2) of the Charter? What will courts permit?

Introduction

On July 21, 2011, the Supreme Court of Canada issued its decision in Alberta (Aboriginal Affairs and Northern Development) v Cunningham, on appeal from the Alberta Court of Appeal. The Court found the Métis Settlements Act, RSA 2000, c M 14 to be an ameliorative program, and upheld limits on who may become a member in a Métis Settlement. The Court also re-affirmed the central role of Métis people in defining who is Métis and to determine who may benefit from the Métis Settlements Act. This comment is about the Court’s statements on Métis history and policy, and what effect it may have on the rights of Métis Settlements.

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The Court confirms that coalbed methane forms part of the natural gas title and not the coal title

PDF version: The Court confirms that coalbed methane forms part of the natural gas title and not the coal title

Case considered: Encana Corporation v ARC Resources Ltd., 2011 ABQB 431

In 2010 the provincial legislature amended the Mines and Minerals Act, RSA 2000, c. M-17 (as am by SA 2010, c.20) (MMA) to declare that coalbed methane (CBM) is and always has been natural gas. In this case Justice Kent of the Court of Queen’s Bench applied the new s.10.1 to grant summary judgement in competing actions brought by the coal owners and the natural gas lessees seeking declaratory relief as to the ownership of CBM in certain lands. The actions in question had all been commenced before the amendment was introduced and passed. The Court held that s.10.1 was a complete answer to the competing claims and concluded that the natural gas lessees were entitled to a declaration that the coalbed methane had been granted to them under the terms of their natural gas leases.

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