Author: Nigel Bankes Page 2 of 88

Nigel Bankes is emeritus professor of law at the University of Calgary. Prior to his retirement in June 2021 Nigel held the chair in natural resources law in the Faculty of Law.

Case commented on: Malii v British Columbia, 2024 BCSC 85 (CanLII), aff’d Nisg?a’a Nation v Malii, 2024 BCCA 313 (CanLII)

PDF Version: Modern Treaties, Shared Territories and Party Status in Aboriginal Title Litigation

Overlapping claims and shared territories present challenges in the negotiation of modern treaties that are best worked out by the Indigenous Nations themselves, drawing on their own laws and protocols. But this does not always prove possible and one party or another may initiate litigation in the courts of the settler state. Unfortunately, this is not uncommon and there are now dozens of cases dealing with overlapping claims or shared territories in the context of modern treaty negotiations. One group of cases deals with the scenario in which Nation A is moving to finalize a modern treaty with the Crown, while Nation B takes the view that the territory encompassed by the proposed treaty is territory that Nation B also used more or less intensively. Nation B therefore files a competing claim and also seeks injunctive relief to prevent finalization or ratification of the proposed treaty. The courts have typically rejected applications for injunctive relief and the substantive claims may drag on for years if not decades. A case in point is the Benoanie litigation in which the applicant Nations with reserves in Northern Manitoba and Saskatchewan sought to enjoin ratification of the Nunavut Agreement: Fond du Lac Band et al v Canada (Minister of Indian and Northern Affairs, 1992 CanLII 2404 (FC).

New “Public Document” on the Agreement in Principle to Modernize the Columbia River Treaty

By Nigel Bankes

On September 13, 2024

In Utility Regulation, Water Law

By: Nigel Bankes

Document commented on: “Negotiations to Modernize the Columbia River Treaty, Agreement-in-Principle Content, Public Document”, dated August 30, 2024, release announced September 5, 2024.

PDF Version: New “Public Document” on the Agreement in Principle to Modernize the Columbia River Treaty

In the first part of July, the governments of Canada and the United States announced that they had reached an agreement in principle (AiP) on the modernization of the Columbia River Treaty (CRT). At about the same time, the province of British Columbia released a backgrounder summarizing the AiP. I provided an ABlawg commentary on that backgrounder here and I have previously posted on modernization of the CRT here and here.

Taking Stock of the Grassy Mountain Litigation, Part 2, August 2024

By Nigel Bankes

On August 28, 2024

In Energy

By: Nigel Bankes

PDF Version: Taking Stock of the Grassy Mountain Litigation, Part 2, August 2024

Cases and decisions commented on: (1) AER Panel Decision on Stay Motion Filed by the Municipal District of Ranchland No. 66 (Stay Application) August 9, 2024, and (2) Municipal District of Ranchland No. 66 v Alberta Energy Regulator, 2024 ABCA 274 (CanLII) (PTA Application) August 22, 2024

This ABlawg post is an update to a post from earlier this year: “Taking Stock of The Grassy Mountain Litigation as of February 2024”. In that post, I traced the litigation commenced by Benga and its corporate successor Northback following the June 2021 report and decision of the Joint Review Panel to reject the Grassy Mountain Project exercising authority as the Alberta Energy Regulator (AER). That litigation involved cases in the Federal Court and Alberta’s Court of Appeal and Court of King’s Bench. The Alberta Court of Appeal litigation came to an end in 2022 when the Supreme Court of Canada denied a further leave to appeal. The Federal Court cases are still ongoing, as is the King’s Bench matter, as well as allied litigation brought by First Nations in both Federal Court and in King’s Bench. I refer the reader to my February 2024 post for details on these case as well as the necessary links and references.

Restoule: Tugging on the Rope and the Duty of Diligent Implementation of Treaty Promises

By Nigel Bankes

On August 8, 2024

In Aboriginal, Indigenous, Reconciliation, Treaty Rights

By: Nigel Bankes

Case Commented On: Ontario (Attorney General) v Restoule, 2024 SCC 27 (CanLII)

PDF Version: Restoule: Tugging on the Rope and the Duty of Diligent Implementation of Treaty Promises

[T]he trial judge found that the Robinson Treaties were motivated largely by the principles of kinship and mutual interdependence, as reflected in the Covenant Chain. This enduring alliance has been depicted using the metaphor of a ship tied to a tree with a metal chain: “The metaphor associated with the chain was that if one party was in need, they only had to ‘tug on the rope’ to give the signal that something was amiss, and ‘all would be restored’” … The Anishinaabe treaty partners have been tugging on the rope for some 150 years now, but the Crown has ignored their calls. The Crown has severely undermined both the spirit and substance of the Robinson Treaties.

Per Justice Jamal at para 286

In a unanimous judgment authored by Justice Jamal, Ontario (Attorney General) v Restoule, 2024 SCC 27 (CanLII), the Supreme Court of Canada has confirmed that the Crown has a duty of diligent implementation of treaty promises that is informed not by fiduciary principles, but by the honour of the Crown. And in this case, the Crown was clearly in breach of that duty since, as Justice Jamal noted in words that will ring down through the decades: “For well over a century, the Crown has shown itself to be a patently unreliable and untrustworthy treaty partner in relation to the augmentation promise. It has lost the moral authority to simply say ‘trust us’” (at para 262).

Agreement in Principle on a Revised Columbia River Treaty

By Nigel Bankes

On July 18, 2024

In International Law, Water Law

By: Nigel Bankes

Event commented on: Announcement of an Agreement in Principle on a Revised Columbia River Treaty, July 11, 2024

PDF Version: Agreement in Principle on a Revised Columbia River Treaty

Last week the governments of Canada and the United States announced that they had reached an agreement in principle (AiP) on a set of amendments to “modernize” the Columbia River Treaty (CRT). It has taken the parties over six years to reach this point. I have provided some background on the CRT and the launch of the renegotiation in previous ABlawg posts here and here. The parties have yet to provide the full text of the AiP but the Government of British Columbia has posted a backgrounder that summarizes the terms of the AiP as well as a useful Q & A page. Here is the text of the summary: