Case considered: Helalt First Nation v British Columbia, 2011 BCSC 945

In this case the Helalt First Nation (HFN) sought judicial review of an environmental assessment certificate issued under the terms of BC’s Environmental Assessment Act, SBC 2002, c 43 with respect to a project known as the Chemainus Wells Project on the grounds that the Crown had failed to discharge its constitutional obligations to consult and accommodate the HFN. The First Nation succeeded in its application. Justice Wedge held that the Crown failed to engage in adequate consultation and failed in its duty to accommodate. As a remedy, Justice Wedge ordered (in addition to granting relevant declarations) that the implementation of any actions or decisions pursuant to the certificate should be stayed pending adequate consultation and reasonable accommodation.

This post focuses on the Court’s treatment of aboriginal title and reserve rights in relation to groundwater.

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PDF version: The Full Implications of Demonstrable Integration: A Roundtable Discussion on West Moberley

Case considered: West Moberly First Nations v. British Columbia, 2011 BCCA 247

Summer at the law school provides faculty members with the opportunity to get on with some research and writing and, in particular, the larger projects that there isn’t the opportunity to tackle during the teaching terms. Law school is also a quieter place at this time with fewer LLB/ JD students around. But there is always a good number of summer students – some employed by Student Legal Assistance (SLA) for clinical duties and others employed by faculty members, the Alberta Law Reform Institute, the Alberta Civil Liberties Research Centre and Canadian Institute of Resources Law on various research projects. One of the other things that we try and do over the summer to enrich the research environment for summer students, graduate students and faculty members alike is to hold a number of roundtable discussions on recent important judicial decisions. Last year, for example, we had a discussion of Supreme Court of Canada freedom of expression decisions (R. v. National Post, 2010 SCC 16; Toronto Star v. Canada, 2010 SCC 21; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23) and a discussion of the Advisory Opinion of the International Court of Justice on Kosovo. Our first roundtable discussion this year focused on the British Columbia Court of Appeal’s decision in West Moberly First Nations v. British Columbia, 2011 BCCA 247, a recent Treaty 8 consultation case which also deals with a SARA (Species at Risk Act, SC 2002, c 29) listed species (woodland caribou). The Attorney General of Alberta appeared as an intervenor on the appeal, undoubtedly because much of northern Alberta is covered by Treaty 8.

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PDF version: The world wide web and the honour of the Crown 

Cases considered: Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2011 ABCA 29, and Lameman v Alberta, 2011 ABQB 40

The Court of Appeal (Justices Ritter, Bielby and Read) has denied the appeal by the Athabasca Chipewyan First Nation (ACFN) against the judgement at trial (2009 ABQB 576) which I blogged here. In that decision, Justice D.R.G. Thomas held that ACFN had commenced its application more than six months after the relevant decision, and therefore out of time within the meaning of Rule 753.11 of the old Alberta Rules of Court, Alta. Reg. 390/1968. In doing so I think that the Court of Appeal has ignored the constitutional foundation of the duty to consult and as a result has failed to interpret the Rules of Court through that lens.

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