Robert Hamilton

By: Robert Hamilton and David V. Wright

PDF Version: Albexit/Wexit/Albwexit and the Rights of Indigenous Peoples

Matter Commented On: Secession by Alberta or Western Provinces

Talk of western alienation has been on the rise over the past year, reaching a point where notions of secession by one or more western provinces is a daily focus of headlines (see e.g. here and here) and social media threads. Most recently, this is visible in the #wexit hashtag that has been circulating since the re-election of the Liberal government. While the specifics around secession are thin, a reasonably representative version can be found in an op-ed penned by Dr. Jack Mintz in the Financial Post late last year. His version of Alberta separatism is a decent starting point for analysis of the matter, though we note that his focus was on “Albexit” as opposed to “Wexit”. Dr. Mintz was riding the prevailing winds at that time, which have only seemed to intensify. His argument, put briefly, is this: Alberta would benefit significantly from secession and, while Alberta leaving the federation may seem unlikely, so too did Britain leaving the EU until it voted to do so. If it happened there (in principle), he reasoned, what’s to say it can’t happen here. We ask, then, is this a tenable argument? Setting aside complications apparent in the final Brexit steps, does the Wexit or Albexit idea withstand scrutiny?

By: Robert Hamilton

PDF Version: Uncertainty and Indigenous Consent: What the Trans-mountain decision tells us about the current state of the Duty to Consult.

Case Commented On: Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153

In a highly anticipated decision on the proposed Trans Mountain Expansion Project (“TMX”), the Federal Court of Appeal (“FCA”) quashed federal approval of the project. The Court did so on two grounds.

First, it held that, while the National Energy Board’s process and findings were largely acceptable, the Board made a “critical error” in not including “Project-related tanker traffic” as a formal part of its environmental assessment under Canadian Environmental Assessment Act, 2012 SC 2012, c 19, s 52 (CEAA, 2012). As a result, “the Governor in Council could not rely on the Board’s report and recommendations when assessing the Project’s environmental effects and the overall public interest” (Tsleil-Waututh, at para 5). For more on this aspect of the decision, see Martin Olszynski’s post.

Second, the FCA held that the federal government failed to discharge its constitutional obligation to consult and accommodate Indigenous peoples. At ‘Phase III’ of the consultation process, the FCA held, the government failed to “engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns” (Tsleil-Waututh, at para 6).

This post focuses on the consultation aspect of the judgment. The decision is helpful insofar as it illustrates important limitations of the duty to consult doctrine. I address two of those limitations, which I argue are closely linked: 1) the lack of a legal obligation to obtain Indigenous consent for development projects and 2) the ongoing uncertainty created by the doctrine of the duty to consult..

Author: Robert Hamilton

Albexit/Wexit/Albwexit and the Rights of Indigenous Peoples

Uncertainty and Indigenous Consent: What the Trans-mountain decision tells us about the current state of the Duty to Consult.