Author Archives: Robert Hamilton

About Robert Hamilton

BA (St. Thomas University), JD (University of New Brunswick); LLM (York University); PhD (University of Victoria). Associate Professor.

What Did the Court Mean When It Said that UNDRIP “has been incorporated into the country’s positive law”? Appellate Guidance or Rhetorical Flourish?

By: Nigel Bankes and Robert Hamilton

Case commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII).

PDF Version: What Did the Court Mean When It Said that UNDRIP “has been incorporated into the country’s positive law”? Appellate Guidance or Rhetorical Flourish?

In its recent reference opinion on the validity of an Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 (the FNIM Act), the Supreme Court went out of its way to comment on the legal significance of the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (the federal UNDRIP Act). The Court did so notwithstanding that legal questions relating to the federal UNDRIP Act were not directly before it, and notwithstanding its own observations in the Reference to the effect that “[t]he task that falls to the Court in the context of a reference invites caution …” (at para 111). That it chose to comment at such length is even more remarkable when one reflects on how reticent the Court seems to have been to comment on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or Declaration), or international human rights law more generally, in other cases over the last two decades dealing with Indigenous rights. Continue reading →

Legislative Reconciliation and Indigenous Rights of Self-Government: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families

By: Robert Hamilton

Case Commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII) (“SCC Reference”).

PDF Version: Legislative Reconciliation and Indigenous Rights of Self-Government: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families

The Supreme Court recently delivered its judgement on the constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 (“the Act”). This post summarizes this long-awaited decision. Colleagues and I will provide more detailed analysis of the Court’s rationale and the implications of the decision in subsequent posts. Continue reading →

The IAA Reference: A Missed Opportunity for Guidance on Important Issues Pertaining to Indigenous Peoples

By: Robert Hamilton

Case Commented on: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

 PDF Version: The IAA Reference: A Missed Opportunity for Guidance on Important Issues Pertaining to Indigenous Peoples

In the Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Ref), the Supreme Court of Canada considered the constitutionality of the federal environmental impact assessment regime. For analysis of what precise aspects of the Impact Assessment Act, SC 2019, c 28, s 1 (IAA) the majority found unconstitutional (and which it held were unproblematic), see the post by my colleagues Martin Olszynski, Nigel Bankes, and David V. Wright here. Continue reading →

Is the Act respecting First Nations, Inuit and Métis children, youth and families Constitutional?

By: Robert Hamilton

PDF Version: ­­Is the Act respecting First Nations, Inuit and Métis children, youth and families Constitutional? 

Case Commented On: Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185 (CanLII) [quotations from the unofficial English translation]

Legislation Commented On: Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24

The Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24, [the Act] received royal assent on June 21, 2019, and came into force on January 1, 2020. The Act was developed over two years and through wide-ranging consultations. It is designed to gradually transfer control of child and family services to Indigenous nations and, through this, to ensure that fewer Indigenous children are removed from their families and communities. The intention is to mitigate the effects of the assimilationist policies that have been incredibly harmful to Indigenous children, families, and communities. The Act seeks to accomplish this by establishing national standards for the provision of child and family services and by providing a mechanism through which Indigenous laws – that is, the laws of Indigenous nations themselves – can take priority over inconsistent federal and provincial laws and govern the delivery of child and family services to Indigenous peoples (Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185 (CanLII), paras 4-5 [Reference]). Although it has faced thoughtful and considered criticism, it is clear the Act seeks to substantially change how child and family services are provided and to transition the governance and regulation of those services to Indigenous peoples. Continue reading →

Yahey v British Columbia and the Clarification of the Standard for a Treaty Infringement

By: Robert Hamilton & Nick Ettinger 

PDF Version: Yahey v British Columbia and the Clarification of the Standard for a Treaty Infringement

Case Commented On: Yahey v British Columbia, 2021 BCSC 1287 (CanLII)

On June 29, 2021, the Supreme Court of British Columbia ruled that the Crown had infringed Treaty 8 by “permitting the cumulative impacts of industrial development to meaningfully diminish [Blueberry River First Nation’s (Blueberry)] exercise of its treaty rights” (Yahey v British Columbia, 2021 BCSC 1287 (CanLII) at para 1884 [Yahey]). This is the first time a court has held that the cumulative effects of multiple projects may form the basis of a treaty infringement. The trial judge’s nuanced articulation of the standard for what constitutes a treaty infringement enabled this groundbreaking development (see paras 445-547). We reviewed the factual and legal findings of the decision in a previous post. This post unpacks the doctrinal aspects of treaty infringement in more detail to contextualize Justice Emily Burke’s navigation of infringement case law and formulation of the “significantly or meaningfully diminished” standard in Yahey (at para 541). While some pundits have interpreted Yahey to be a dramatic lowering of the standard for an infringement, we believe the decision is an insightful clarification and faithful application of Supreme Court precedent. Continue reading →