Category: Aboriginal Page 11 of 32

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..

Open Court Principle: ABCA Agrees with Less than Full Disclosure in Some Circumstances

By Jay Moch

On July 9, 2018

In Aboriginal, Access to Justice

By: Jay Moch

PDF Version: Open Court Principle: ABCA Agrees with Less than Full Disclosure in Some Circumstances

Case Commented On: Aboriginal Peoples Television Network v Alberta (Attorney General), 2018 ABCA 133 (CanLII) (APTN)

In 2011, Casey Armstrong was stabbed to death, leading to the arrest of Wendy Scott and Connie Oakes, a Cree woman. Scott pled guilty to the second-degree murder charge, while Oakes decided to undergo a jury trial, which led to her eventual conviction (APTN, at para 4). During Oakes’ trial, Scott acted as a key witness for the Crown. On cross-examination, Scott was questioned about three videotaped statements she had made to the police following her arrest. To highlight the inconsistencies between Scott’s in-court testimony and the police statements, specific small portions of the videotapes were played to the jury and judge. Although only parts of the tapes were shown, the trial judged marked the videos collectively as “Exhibit F for identification” (APTN, at para 5).

Barring Claims Against Discriminatory Legislation: Canada v Canada

By Elysa Darling

On June 29, 2018

In Aboriginal, Human Rights

By: Elysa Darling and Drew Lafond

PDF Version: Barring Claims Against Discriminatory Legislation: Canada v Canada

Case Commented On: Canada (Canadian Human Rights Commission v Canada (Attorney General), 2018 SCC 31 (Can LII)

Two weeks ago, in Canada (Canadian Human Rights Commission v Canada (Attorney General) (CHRC v AG), the Supreme Court of Canada upheld the decision of the Canadian Human Rights Tribunal (CHRT) that direct challenges to legislation cannot be pursued under section 5 of the Canadian Human Rights Act, RSC 1985, c H-6 (the CHRA). The claimants in this case argued that they were discriminated against under section 6 of the Indian Act, RSC 1985, c I-5 and filed a complaint under section 5 of the CHRA asking the CHRT to render inoperative the offending provisions in the Indian Act. The decision of the CHRT, with which the Court agreed, was that a complaint under the CHRA cannot be used to directly challenge legislation on the basis that it is discriminatory.

Eighteen Years of Inmate Litigation Culminates with Some Success in the SCC’s Ewert v Canada

By Amy Matychuk

On June 26, 2018

In Aboriginal, Supreme Court of Canada

By: Amy Matychuk

PDF Version: Eighteen Years of Inmate Litigation Culminates with Some Success in the SCC’s Ewert v Canada

Case Commented On: Ewert v Canada, 2018 SCC 30 (CanLII)

On June 13, 2018, the Supreme Court of Canada (SCC) issued its decision in Ewert v Canada (Ewert SCC), in which the majority held that the Correctional Service of Canada (CSC) breached its statutory duty to Jeffrey G Ewert, a Métis inmate, when it used five actuarial risk assessment tests that were not proven to be accurate when applied to Indigenous offenders. CSC uses these tests to assess inmates’ risk of recidivism, and the test results can impact liberty-related processes such as security classification, parole hearings, and eligibility for escorted temporary absences (ETAs). Mr. Ewert had rather slim positive evidence for the presence of cultural bias in the tests; his argument was, instead, that his and others’ legitimate concerns about the possibility of bias should require CSC to produce research confirming the tests’ validity. He was initially successful at the Federal Court in 2015, overturned at the Federal Court of Appeal in 2016, and ultimately prevailed at the SCC. His lengthy litigation efforts resulted in a total of five written decisions and spanned eighteen years. In this post, I will review the long history of Mr. Ewert’s efforts, the progression of his case through the courts, and the significance of the remedy he received.

Duty to Consult in the Bigstone Pipeline Case: A Northern Gateway Sequel and TMX Prequel?

By David V Wright

On June 6, 2018

In Aboriginal, Energy

By: David. V Wright

PDF Version: Duty to Consult in the Bigstone Pipeline Case: A Northern Gateway Sequel and TMX Prequel?

Case commented on: Bigstone Cree Nation v. Nova Gas Transmission Ltd., 2018 FCA 89

While all eyes are on the Trans Mountain Expansion (TMX) pipeline saga, especially the political spats and constitutional law dimensions (clear as much of that law may be), the Federal Court of Appeal (FCA) released a decision in early May that is directly on-point with respect to legal challenges brought by Indigenous groups against the TMX project approval (consolidated by the FCA into one case). Bigstone Cree Nation v. Nova Gas Transmission Ltd. engages the same legislative scheme as the court challenges against the Northern Gateway Project (NGP), which was decided by the Court in Gitxaala Nation v. Canada, 2016 FCA 187, and at issue in TMX – i.e. the post-2012 integrated NEB Act – CEAA 2012 review and approval regime. This post has two parts. In the first part, I focus on a few notable points of law that the FCA reiterated in Bigstone. In the second part, I move on to discuss how this appears to be an important duty to consult trilogy in the making, with this latest case providing hints toward the FCA upholding the TMX Order in Council (OIC) and Certificate of Public Convenience and Necessity (CPCN or certificate). The FCA’s TMX decision is due out soon.