Category Archives: Aboriginal

Leave to Appeal Granted by the SCC in Métis Status Case

By: Jennifer Koshan

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Case Commented On: Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239, leave to appeal granted March 11, 2010

On March 11, 2010, the Supreme Court of Canada (Justices McLachlin, Abella and Rothstein) granted leave to appeal to the Alberta government in Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development) and the Registrar et al. v Barbara Cunningham et al. Dealing with the relationship between Métis and Indian status under the Métis Settlements Act, the case may take on even greater significance in light of Bill C-3, the Gender Equity in Indian Registration Act, introduced in the House of Commons on March 12, 2010.

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The role of a limitations defence in a judicial review application involving the Crown’s duty to consult

Case considered: Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2009 ABQB 576

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Oil sands developments in Alberta are taking place in the traditional territories of First Nations in areas of the province that are subject to Treaty 8. As with the other numbered treaties, Treaty 8 contains a hunting clause with a “lands taken up” proviso which reads as follows:

And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as before described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.

The Supreme Court examined the implications of this clause for Crown disposition policies in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 (Mikisew Cree). I commented on that decision in a short note in Resources: “Mikisew Cree and the Lands Taken Up Clause of the Numbered Treaties” (2006), 92/93 Resources 1 – 8.

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Preliminary thoughts on the First Nations Oil and Gas and Moneys Management Act

Legislation Considered: First Nations Oil and Gas and Moneys Management Act, S.C. 2005, c.48

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The First Nations Oil and Gas and Moneys Management Act, S.C. 2005, c.48 (“FNOGMMA“) came into force on April 1, 2006. However, to date no First Nations have elected to “opt into” the Act.

The Act has been promoted as a method whereby a First Nation can take control of its on-reserve oil and gas resources and thus enhance the economic rent from these resources. It is elective in that a First Nation must choose to bring itself under the FNOGMMA legislative regime before the statutory regime applies. The existing Indian Oil and Gas Act, R.S.C. 1985, c. I-7 will continue to apply to those First Nations that do not “opt into” the FNOGMMA. Left unstated is why Canada under the existing Indian Oil and Gas Act cannot similarly take advantage of “value-added” opportunities and similarly enhance the economic rent accruing to the beneficiary First Nation. (A new Indian Oil and Gas Act was passed on May 14, 2009, but will not be in force until the amendments to the Indian Oil and Gas Regulations, 1995 are complete.)

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Another Take on Equality Rights by the Court of Appeal

By: Jennifer Koshan

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Case Commented On: Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239

In my recent post on Morrow v Zhang, 2009 ABCA 215, Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries, I noted that this case was the first opportunity for the Court of Appeal to apply section 15 of the Charter (the equality rights provision) since the Supreme Court of Canada’s landmark decision in R v Kapp, 2008 SCC 41. Only a couple of weeks later, a differently constituted Court of Appeal panel decided another section 15 case, and the analysis and outcome of the two cases are quite different. While I have a few quibbles with the Court’s decision in Cunningham v Alberta (Aboriginal Affairs and Northern Development), I believe it is a much better example of how section 15 of the Charter should be applied than is Morrow v Zhang.

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Rule of Law, Deference and Contempt: Another Chapter in the Black Bear Crossing Dispute

Case Considered: Tsuu T’ina Nation v. Frasier, 2009 ABCA 140

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The dispute between the three remaining residents of Black Bear Crossing (BBC) and the Tsuu T’ina Nation was back before the courts on April 6, 2009. On that date, the Alberta Court of Appeal (Justices Peter Martin, Frans Slatter and Sal LoVecchio) heard an appeal by the Tsuu T’ina Nation of the finding of contempt made against it on November 7, 2008 by Justice Jo’Ann Strekaf. The contempt order related to the failure of the Tsuu T’ina Nation to comply with earlier orders requiring it to maintain utilities and water service at BBC while the three residents – Fred Frasier, Florence Peshee and Regina Noel – remained there pending the resolution of their claims for band membership (see my earlier post “Litigation by installments”: Further Developments in the Black Bear Crossing Dispute). While the Court of Appeal dismissed the appeal in eight short paragraphs, its judgment is replete with lofty legal concepts such as the rule of law and deference that call out to be unpacked.

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