Category: Aboriginal Page 12 of 32

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.

Columbia River Treaty Negotiations to Commence

By Nigel Bankes

On May 25, 2018

In Aboriginal, Environmental

By: Nigel Bankes

PDF Version: Columbia River Treaty Negotiations to Commence

Announcements commented on: (1) Global Affairs Canada, Canada and United States launch negotiations to renew Columbia River Treaty, May 22, 2018, (2) US Department of State, Launching negotiations to modernize the Columbia River Treaty regime, May 22, 2018, (3) British Columbia, Statement on Upcoming Treaty Negotiations, May 22, 2018, (4) Okanagan Nation Alliance, Shuswap Nation Council and Ktunaxa Nation Council, Canada Excludes Indigenous First Nations form International Columbia River Treaty Re-Negotiation, May 23, 2018.

The Governments of Canada and the United States have announced that they will begin negotiations (May 29 and 30, 2018, Washington DC) to “modernize” the Columbia River Treaty. For background on this issue see my previous post here. British Columbia and three First Nation groups have also issued press releases.

Evidentiary Issues with Claim of Racial Profiling in R v Kenowesequape

By Chad Haggerty

On March 22, 2018

In Aboriginal, Criminal

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.

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

By David Laidlaw

On March 15, 2018

In Aboriginal, Environmental

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.

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

By David V Wright

On February 27, 2018

In Aboriginal, Environmental

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.