Category Archives: Aboriginal

Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

By: Nigel Bankes

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

PDF Version: Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

The Children, Youth and Families Reference is a decision on the “Indians” head of section 91(24), a head that the Supreme Court of Canada has reframed as “Indigeneity, that is, Indigenous peoples as Indigenous peoples” (Reference at para 94). The Court takes a broad view of the scope of this head of federal power. It also reminds us that the double aspect doctrine means that so long as federal legislation is firmly connected to a federal head of power it can compete with and trump provincial legislation grounded on provincial heads of power addressing the same subject area (e.g. child and family welfare), so long as the federal legislation is addressed to the federal aspect of that subject matter. Furthermore, the Reference makes it clear that Parliament may accord the laws of Indigenous Nations the authority of federal law while the Nations await judicial confirmation that section 35 of the Constitution Act, 1982 protects a broad inherent power of Indigenous self-government. This implies that, provided that the federal government has the necessary legal or political motivation, it has the means to back-out provincial laws and create space for Indigenous self-government on a broad range of matters that can be connected to Indigenous peoples as Indigenous peoples. Continue reading →

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 →

British Columbia Free Entry Mining System Triggers Duty to Consult and Must Change: Gitxaala v British Columbia (Chief Gold Commissioner)

By: David V. Wright

Case Commented On: Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 (CanLII)

PDF Version: British Columbia Free Entry Mining System Triggers Duty to Consult and Must Change: Gitxaala v British Columbia (Chief Gold Commissioner)

The Supreme Court of British Columbia (BCSC) recently ruled that the existing mineral tenure system in the province triggers provincial Crown obligations to consult First Nations. While the duty to consult is now a relatively mature area of law in Canada that is “replete with indicia for what constitutes meaningful consultation” (Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 (CanLII) at para 41), some areas of uncertainty remain. This case dealt with one such long-standing question: does British Columbia’s “free entry” mineral tenure regime trigger the Crown’s duty to consult? This post discusses the findings of the court and briefly comments on implications of the decision for BC and the rest of Canada. My colleague Nigel Bankes recently wrote a post on the aspect of this decision pertaining to the United Nations Declaration on the Rights of Indigenous Peoples (here), and my other colleague, Dr. Elizabeth Steyn, will soon publish a post on the sacred sites dimension of the decision. Continue reading →