PDF Version: What are the Rules Governing Consents to Assignments of Pipeline Easements across Indian Reserves?
Case commented on: Coldwater Indian Band v Minister of Indian Affairs and Northern Development, 2013 FC 1138
This case raises the question of the leverage available to a First Nation to claim hold-out rents where a pipeline crosses reserve lands and the current owner/operator of the pipeline has failed to obtain required consents to an assignment of the pipeline easement.
PDF Version: Constitutional Questions and the Alberta Energy Regulator
Decisions commented on: (1) ERCB Letter Decision, April 18, 2013, re Fort McKay First Nation, Notice of Question of Constitutional Law; (2) ERCB Letter decision, May 23, 2013, reasons for decision in relation to Fort McKay First Nation, Notice of Question of Constitutional Law; (3) 2013 ABAER 014, Dover Operating Corporation, Application for a Bitumen Recovery Scheme Athabasca Oil Sands Area, August 6, 2013; and (4) Fort McKay First Nation v Alberta Energy Regulator, 2013 ABCA 355
The Alberta Court of Appeal has granted leave to the Fort McKay First Nation (FMFN) to appeal two questions of law or jurisdiction in relation to decisions made by the Energy Resources Conservation Board (ERCB) (the predecessor to the Alberta Energy Regulator (AER)) and the AER itself in approving, subject to the further approval of the Lieutenant Governor in Council, Dover’s application for a major steam assisted gravity drainage (SAGD) bitumen recovery project. The two questions on which leave was granted are as follows:
(a) Whether the Tribunal erred in law or jurisdiction by finding that the question whether approval of the project would constitute a meaningful diminution of the Treaty rights of the Fort McKay First Nation and therefore be beyond provincial competence was not a question of constitutional law as defined in the Administrative Procedures and Jurisdiction Act;
(b) Whether the Tribunal erred in law or jurisdiction by finding that it had no jurisdiction to consider constitutional issues other than those defined as “questions of constitutional law” in the Administrative Procedures and Jurisdiction Act.
PDF Version: The Crown Owes No Duty to Consult Indigenous Communities Before Ratifying a Bilateral Investment Treaty
Case commented on: Hupacasath First Nation v Minister of Foreign Affairs Canada and the Attorney General of Canada, 2013 FC 2009
In this case Chief Justice Crampton of the Federal Court Trial Division rejected the application of the claimant Hupacasath First Nation (HFN) for a declaration that Canada is required to engage in a process of consultation and accommodation with First Nations, including HFN, prior to ratifying or taking other specific steps that will bind Canada to the terms of the Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments (CCFIPPA) (text available here). It was common ground (at paras 11 and 12) that while the Department of Foreign Affairs and International Trade had consulted with stakeholders, that consultation did not extend to HFN or other First Nations.
PDF Version: Advance Costs and Trusts: Little Sisters and Okanagan Distinguished
Case commented on: 1985 Sawridge Trust v Alberta (Public Trustee), 2013 ABCA 226
The Alberta Court of Appeal recently upheld an award of advance costs originally granted in 1985 Sawridge Trust v Alberta (Public Trustee), 2013 ABCA 226. In so doing, the Court of Appeal distinguished British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371 [Okanagan] and Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 SCR 38 [Little Sisters (No.2)] concluding that the strict requirements of Little Sisters and Okanagan did not apply in the unique, non-adversarial circumstances of Sawridge Trust.
By: Verónica de la Rosa Jaimes
PDF Version: The Petition of the Arctic Athabaskan Peoples to the Inter American Commission on Human Rights
The indigenous peoples of the Arctic, including the Arctic Athabaskan peoples, have contributed the least to the accelerated warming and melting of the Arctic through emissions of greenhouse gases yet they are among the first to face direct environmental, social and human impacts of climate change. On April 23rd, 2013 the Arctic Athabaskan Council (AAC), represented by Earthjustice and Ecojustice Canada, on behalf of all the Arctic Athabaskan Peoples of the Arctic regions of Canada and United States, filed a petition with the Inter American Commission on Human Rights (IACHR) seeking relief from violations of their rights resulting from rapid Arctic warming and melting caused by emissions of black carbon for which Canada has international responsibility. The petition is a detailed and comprehensive memorial that includes a thorough analysis of international human rights law and case law, as well as the evidence of some Athabaskan people claiming violations of their human rights.
