Category Archives: Aboriginal

Evidentiary Issues with Claim of Racial Profiling in R v Kenowesequape

By: Chad Haggerty

PDF Version: Evidentiary Issues with Claim of Racial Profiling in R v Kenowesequape

Case Commented On: R v Kenowesequape, 2018 ABQB 135 (CanLII)

In 1999, the Ontario Court of Appeal adopted the following definition of “racial profiling”

Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group (R v Richards, 26 CR (5th) 286, 1999 CanLII 1602 (ON CA) at para 24).

In R v Kenowesequape, Madam Justice Khullar of the Alberta Court of Queen’s Bench was tasked, in part, with determining whether an allegation of racial profiling was justified. This post will focus on the court’s rejection of the argument that racial profiling was in play during this police action. Continue reading →

Bill C-69, the Impact Assessment Act, and Indigenous Process Considerations

By: David Laidlaw

PDF Version: Bill C-69, the Impact Assessment Act, and Indigenous Process Considerations

Legislation Commented On: An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts (Bill C-69)

On February 8, 2018, the Minister of the Environment and Climate Change [Minister] submitted Bill C-69 for first reading. Bill C-69, should it pass, proposes to enact the Impact Assessment Act [IAA], continue the Canadian Environmental Assessment Agency under the name Impact Assessment Agency of Canada [Agency], establish the Canadian Energy Regulator [CER] to replace the National Energy Board, and amend the Navigation Protection Act, RSC 1985, c N-22 with consequential amendments. Continue reading →

Indigenous Engagement and Consideration in the Newly Proposed Impact Assessment Act: The Fog Persists

By: David V. Wright

PDF Version: Indigenous Engagement and Consideration in the Newly Proposed Impact Assessment Act: The Fog Persists

Bill Commented On: Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

On February 8, the Trudeau government tabled Bill C-69. This is a complex Bill that aims to overhaul several of Canada’s foundational environmental laws, with a particular focus on the regime for review and approval (or rejection) of major projects such as mines, dams and pipelines. My colleagues have also generated ABlawg posts on this Bill; you can read them here, here, and here (with more to come).

In this post, I focus on Indigenous engagement dimensions of the proposed Impact Assessment Act. First, I offer some introductory comments on the path to this point, then I move on to a high-level inventory of notable Indigenous engagement features in the proposed Act, noting differences from the current assessment regime in places. I then offer some preliminary reflections and comments with respect to the proposed Act in relation to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the duty to consult. While the latter sub-topics could be major research projects in and of themselves, this post simply puts forward starting points for further examination, and, hopefully, further discussion toward improving the proposed legislation before it is finalized. In a nutshell, the proposed Act builds in more authority and avenues for Indigenous engagement, but fails to seize the opportunity to generate much needed clarity around UNDRIP and the duty to consult in the impact assessment realm. This, unfortunately, may serve to thicken a fog that has persisted in this area for some time. Continue reading →

Tracing the Likeness of Colten Boushie in the Law Classroom

By: Lisa A. Silver

PDF Version: Tracing the Likeness of Colten Boushie in the Law Classroom

On January 29, 2018, the nation’s gaze was decidedly fixed on Battleford, Saskatchewan where the second-degree murder trial of Gerald Stanley was commencing. From that first day of jury selection to the present, there is a general sense of shock, outrage and disbelief from so many corners of our country. In the legal community, there is much debate on the legal issues arising from the trial as well as concerns with jury selection, the ethical duties of jurors, and the presence of discriminatory practices that are embedded in our justice system. Many voices are being heard that are challenging the traditional common law perspective. Several of these voices are from the Indigenous community who are speaking from their heart and from their own personal experiences. As part of this reaction, the legal community is debating these issues through a variety of lenses and from all sides. Like most everyone touched by this case, I have read these accounts with interest. As a lawyer who practiced criminal law and now teaches it, my initial reaction is typically lawyerly: to parse the charge to the jury for legal errors, to debate the efficacy of peremptory challenges and to call for change in our justice system. But the overwhelming message, and in my view, the message which needs to be presented in the law classroom is not just one promoting a legalistic analysis but one providing a broader more meaningful message framing this case and this verdict as part of an overarching theme or subtext, which can be traced in the law classroom. Continue reading →

Court Confirms that Good Faith Fulfilment of Modern Treaties is Essential to the Project of Reconciliation

By: Nigel Bankes

PDF Version: Court Confirms that Good Faith Fulfilment of Modern Treaties is Essential to the Project of Reconciliation

Case Commented On: First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 (CanLII)

In this unanimous decision authored by Justice Karakatsanis, the Supreme Court of Canada confirmed what seems like an obvious proposition, namely that good faith fulfilment of modern treaties is a necessary condition for the project of reconciliation. The Court concluded that the land use planning process established by the Yukon Final Agreements permitted Yukon to modify a Recommended Final Plan (in this case the Peel Watershed Regional Land Use Plan), but that the power to modify did not include the power to change a Plan “so significantly as to effectively reject it” (at para 39). More specifically, Yukon’s power to modify was confined by the scope of the issues that it had raised during the planning process; it could not raise significant new issues although it could respond to changing circumstances. As a result, Yukon’s purported approval of the Plan was invalid (at para 35). Continue reading →