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Interim Report on Violence Against Aboriginal Women Released

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On April 29, 2011

In Aboriginal, International Law, State Responses to Violence

PDF version: Interim Report on Violence Against Aboriginal Women Released

Report Commented on: House of Commons Standing Committee on the Status of Women Interim Report, Call Into The Night: An Overview of Violence Against Aboriginal Women

Just before the House of Commons was dissolved for the election, the House of Commons Standing Committee on the Status of Women tabled its Interim Report, Call Into The Night: An Overview of Violence Against Aboriginal Women. In a news release, the Honourable Hedy Fry, Chair of the Committee, stated as follows: “It is rare that an all party Committee displays such unanimity, urgency and passion in getting its message out. All members were so astounded and overwhelmed by the systemic, institutionalised nature of the violence against Aboriginal women that we wanted to make sure, this time, that their voices will be heard; that their cries for help and the hope which these hopeless and desperate women had placed in us was not lost because of an election call.” I blogged on the Committee’s Edmonton hearing back in January, focusing on the lack of attention the study was receiving in the media. The silence around violence against Aboriginal women is also identified as a major issue in the Committee’s Interim Report (at 3-4).

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New Rules of Court Interpreted: Rule 2.10 and Intervenor Status

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On March 23, 2011

In Aboriginal, Civil Procedure: New Rules of Court

Case commented on: R. v. Hirsekorn, 2011 ABQB 156

R. v. Hirsekorn is a summary conviction appeal of convictions for shooting wildlife not in regular season and being in possession of wildlife without a valid permit, contrary to ss. 25(1) and 55(1) of the Wildlife Act, RSA 2000, c. W-10. At trial, Provincial Court Judge F. C. Fisher rejected Hirsekorn’s argument that the charges should be dismissed because he had an unextinguished Métis right to hunt for food under s.35 of the Constitution Act, 1982 (see 2010 ABPC 385). The Blood Tribe and Siksika Nation applied to the Alberta Court of Queen’s Bench for intervenor status in the appeal.

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The world wide web and the honour of the Crown

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On February 7, 2011

In Aboriginal

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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Interpreting Section 15(2) of the Charter: LEAF’s Intervention in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham

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On December 16, 2010

In Aboriginal, Constitutional, Supreme Court of Canada

By: Jonnette Watson Hamilton

PDF Version: Interpreting Section 15(2) of the Charter: LEAF’s Intervention in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham 

Cases Commented On: Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development), et al. v Barbara Cunningham, et al. (Alberta) (Civil) (By Leave) Case number 33340, on appeal from Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239

The Supreme Court of Canada is scheduled to hear the appeal of the Alberta government in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham on Thursday, December 16, 2010. Cunningham will be the first case in which the Supreme Court considers the application of section 15(2) of the Charter since that Court gave independent meaning to section 15(2) in R v Kapp, 2008 SCC 41 and the first case in which the Court must consider the possible application of section 15(2) when the challenge is on the basis of under-inclusiveness. This comment is based on my experience serving on the Women’s Legal Education and Action Fund (LEAF) case subcommittee in Cunningham, the factum filed by LEAF, and, to a much lesser extent and only to offer a contrast, the facta of the Appellants and the Attorney General of Ontario.

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Little Salmon and the juridical nature of the duty to consult and accommodate

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On December 10, 2010

In Aboriginal, Supreme Court of Canada

PDF version: Little Salmon and the juridical nature of the duty to consult and accommodate 

Case commented on: Beckman v Little/Salmon Carmacks First Nation, 2010 SCC 53

This is the first decision of the Supreme Court of Canada to deal head on with the relationship between the terms of a constitutionally protected land claims agreement (LCA) and the duty to consult and accommodate. The Court holds that the terms of an LCA do not exhaust the Crown’s duty to consult, or, to put it another way, an LCA is not a complete code but is embedded in the general legal system embracing both constitutional law norms and administrative law norms. This means that the Crown may have consultation obligations that are additive to those found in the text of an LCA. However, the majority articulates a narrow view of the content of the duty to consult and thus it was easy for the Court to find that the Crown — here the Government of Yukon (YTG) — had satisfied its obligations. In my view the content of the duty to consult articulated by the Court in this case is no greater than that which would be provided by the application of standard principles of administrative law. This impoverished view of the duty to consult is hardly likely to contribute to the constitutional goal of inter-societal reconciliation.

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