Category Archives: Aboriginal

Who decides if the Crown has met its duty to consult and accommodate?

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Decision commented on: Reasons for July 17, 2012 Decision on Notice of Question of Constitutional Law, Osum Oil Sands Corp., Taiga Project, August 24, 2012.

In a letter decision of August 24, 2012 (hereafter LD) the ERCB decided that it lacks the jurisdiction to determine whether or not the Crown in right of Alberta had discharged its duty to consult and accommodate the Cold Lake First Nation (CLFN) with respect to the impacts of a proposed SAGD (steam assisted gravity drainage) in situ bitumen project (the Taiga Project). Continue reading →

The implications of the Tsilhqot’in Case for the Numbered Treaties

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Cases Considered: Williams v British Columbia, 2012 BCCA 285, and Lameman v Alberta, 2012 ABQB 195

The unanimous decision of the British Columbia in Williams, (a.k.a. the Tsilhqot’in land claim case or the Brittany Triangle case) continues the trend in Canadian case law (beginning with R v Marshall; R v Bernard, 2005 SCR 43) of insisting that a claimant First Nation or other aboriginal people must establish exclusive occupation of particular tracts of land in order to obtain a declaration of aboriginal title.  Indeed, the case comes close to suggesting, and as a matter of law, that a claimant people will hardly ever\never succeed on the basis of what the court describes as a territorial claim (at para 219) i.e. the claim that these lands (e.g. a particular watershed) are our lands because we were present in that territory (at para 206), living in accordance with our laws (including property laws) and using that territory to the exclusion of all others.

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Disgorgement Damages Awarded against Canada for Breach of a Modern Land Claim Agreement

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Case commented on: NTI v Canada (Attorney General), 2012 NUCJ 11

In this important case Justice Earl Johnson in the Nunavut Court of Justice has granted summary judgement against Canada in the amount of $14,817,500 for breach of Article 12.7.6 of the Nunavut Land Claims Agreement (NLCA) which provided for the establishment of a monitoring program to cover “the long term state and health of the ecosystemic and socio-economic environment in the Nunavut Settlement Area.”  Justice Johnson assessed damages on a disgorgement basis calculated by reference to the expenditures that Canada avoided making by failing to implement this provision of the NLCA in a timely way.  In doing so the judgement draws upon the decision of the House of Lords in Attorney General v Blake, [2001] 1 AC 268 (HL).

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Da’naxda’xw/Awaetlala

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Case considered: Da’naxda’xw/Awaetlala First Nation v British Columbia (Environment), 2011 BCSC 620 (“Da’naxda’xw/Awaetlala“)

In the Da’naxda’xw/Awaetlala case, Madam Justice Fisher was faced with a different type of duty to consult and accommodate issue.

While this is a British Columbia case it demonstrates even more the differences between British Columbia Court’s treatment of the duty to consult and accommodate and Alberta Courts (see here). Further it distinguishes the recent Alberta Court of Appeal decision in Tsuu T’ina Nation v Alberta (Minister of Environment), 2010 ABCA 137 on, I would suggest somewhat arguable distinctions (see here). Finally, this decision also distinguishes the Alberta Court of Appeal decision in R v Lefthand, 2007 ABCA 206.

In the Da’naxda’xw/Awaetlala, the petitioners sought judicial review of the Minister’s refusal to recommend a boundary variation of a conservation area that encompassed the First Nation’s traditional lands in order to accommodate a proposed hydro-electric power project (the “Project”). The twist was that the petitioners Da’naxda’xw/Awaetlala First Nation (“First Nation”) and Kleana Power Corporation (“Kleana”), the nominal project proponent, were seeking the variation.

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First Nation treaty obligations should inform the interpretation of discretionary powers under the Species at Risk Act

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Case commented on: Adam v Canada (Environment), 2011 FC 962

Woodland caribou are listed as threatened under the Species at Risk Act, SC 2002, c 29 (SARA). The species (and particular herds of the species) are threatened by the fragmentation of their habitat principally due to resource developments including coal mining (see West Moberly First Nation v British Columbia (Chief Inspector of Mines), 2011 BCCA 247), oil and gas exploration, oil sands projects (mining and in situ) and forestry projects, and by the linear land use disturbances often associated with these projects including seismic lines, roads, transmission lines and pipelines. The species is also negatively impacted by increased predation.

But what should we do about this? The answer of governments in Alberta, British Columbia and the federal government seems to be as little as possible and as slowly as possible – for fear that any real action to recover the various herds will be too disruptive of the governments’ shared resource development agendas.

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