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Author: Jennifer Hocking

B.A. (Hons.) (McGill), LL.B. (UBC). Jennifer was called to the Bar in British Columbia in 1992 and in Alberta in 1998. She has practised in the areas of energy regulation and aboriginal law. Jennifer is currently a Master of Laws student at the University of Calgary. Her thesis is on the role of the National Energy Board in regulating access to pipelines.

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).     

Burnaby Refinery not a Priority Destination under Pipeline Tariff

PDF version: Burnaby Refinery not a Priority Destination under Pipeline Tariff

Case commented on: Chevron Canada Limited Priority Destination Designation Application (15 July 2013) MH-002-2012 (NEB).

Most shippers on the Trans Mountain Pipeline will no doubt be pleased with the recent decision of the National Energy Board (NEB) denying a Priority Destination Designation for Chevron’s Burnaby Refinery. Chevron applied for an order designating Chevron’s Burnaby Refinery as a Priority Destination pursuant to section 1.58 of the Tariff of Trans Mountain Pipeline ULC. The Burnaby Refinery serves a key function as it refines Alberta crude oil into gasoline for the Lower Mainland of BC.

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