Category: Aboriginal Page 28 of 32

The Supreme Court of Canada clarifies the role of administrative tribunals in discharging the duty to consult

In the 1950s British Columbia authorized Alcan to develop the Nechako and Kemano Rivers for power purposes to supply Alcan’s aluminum facility at Kitimat. This development occurred in the traditional territory of the Carrier Sekani Tribal Council (CSTC) First Nations. There was no consultation at that time. Since then Alcan has sold excess power from its facilities to BC Hydro (a Crown corporation) and in 2007 the parties negotiated an energy purchase agreement (EPA) to cover the period up until 2034. Sales have been growing in recent years as Alcan has found it more profitable to generate electricity than make aluminum: Kitimat (District) v. British Columbia (Minister of Energy and Mines), 2008 BCCA 81.

Still More Questions about Standing before the ERCB

By Nickie Nikolaou

On July 16, 2010

In Aboriginal, Intervenors and Standing, Natural Resources

PDF version: Still More Questions about Standing before the ERCB

Case Considered: Prince v. Alberta (Energy Resources Conservation Board), 2010 ABCA 214

Leave to appeal applications from standing decisions of the Energy Resources Conservation Board (ERCB) continue to be heard almost, it seems, regularly. Some cases raise questions about the first part of the standing test, whether a “right” has been established that may be affected by a proposed energy project. Others focus on the second part of the test, whether possible direct and adverse effects have been demonstrated. Sometimes the Court of Appeal grants leave; sometimes it does not. Prince v. Alberta (ERCB) is another case of leave denied. It is also yet another case that raises important questions about the proper interpretation of the test for standing. Isn’t it time for legislative direction?

Water Rights and Water Stewardship: What About Aboriginal Peoples?

By David Laidlaw

On July 8, 2010

In Aboriginal, Water Law

PDF version: Water Rights and Water Stewardship: What About Aboriginal Peoples?

Introduction

The province of Alberta is currently reviewing its approach to the allocation, licensing and transfer of water rights. The government has received advice from a number of groups of experts established under various government initiatives and concerned citizens have come forward with their own recommendations. In addition, the government has announced that it will hold public consultations on the proposed review of its water allocation and management system in the summer of 2010.

One striking feature of the reports received by the Alberta government is the absence of attention paid to the issue of Aboriginal uses of, and rights to, water. First Nations are only mentioned, along with other designated groups, in passing in a single recommendation (at #12 of the 15 recommendations) in the report submitted by the Minister’s Advisory Group dealing with governance of water management and allocation: Minister’s Advisory Group, Recommendations for Improving Alberta’s Water Management and Allocation, August 2009.

One reason for this lack of attention is Alberta’s long-standing position that Aboriginal water rights have been extinguished and the province has exclusive jurisdiction over water in the province (see Nigel Bankes, “Water Law Reform in Alberta: Paying Obeisance to the ‘Lords of Yesterday’, or Creating a Water Charter for the Future?” (1995) 49 Resources 1 at 5).

Alberta’s position has been challenged by several First Nations in several lawsuits alleging that their water rights still exist, both on and off reserve, and those rights now receive the benefit of constitutional protection. In connection with these rights Aboriginal peoples assert that they must be adequately consulted by the government on proposed reviews of the water allocation system and on ongoing land and water initiatives that impact their rights. In response, the government has stated that it will seek input from First Nations on water use and watershed planning initiatives through an undefined separate “yet parallel process”: Government of Alberta, Water for Life: Alberta’s Water Allocation Management System Review; see “Who is involved in the Water Allocation System Review?”

In November 2009, the Canadian Institute of Resources Law (CIRL) convened a small workshop, funded by the Alberta Law Foundation and the Canadian Boreal Initiative, to discuss the issue of Aboriginal rights to water in Alberta. The meeting was attended by First Nations elders and councillors, community leaders, lawyers and scholars. This article draws in part from the proceedings of this workshop and a CIRL Occasional Paper #29, Defining Aboriginal Rights to Water in Alberta: Do They Still “Exist”? How Extensive are They? by Monique M. Passelac-Ross and Christina M. Smith (2010).

Maintaining space for autonomy? Environmental assessments in the context of aboriginal land claims agreements

By Nigel Bankes

On May 28, 2010

In Aboriginal, Environmental, Supreme Court of Canada

PDF version: Maintaining space for autonomy? Environmental assessments in the context of aboriginal land claims agreements

Case considered: Quebec (Attorney General) v. Moses, 2010 SCC 17

This is the first decision of the Supreme Court of Canada to examine a modern land claims agreement; in this case the James Bay and Northern Quebec Land Claim Agreement (JBNQA or the Agreement) between Canada, Quebec and the James Bay Cree and the Northern Quebec Inuit. The argument in the case happens to relate to the nature of the environmental assessment process that should be applied to a particular project but there is a much broader issue at stake which is the capacity of federal and provincial governments to continue to make and apply laws within the territory covered by the Agreement to matters “covered” by the terms of the Agreement. By adopting an artificial distinction between that which is covered by the Agreement and that which falls outside it, the majority recognize that governments have retained significant authority to “supplement” the terms of the Agreement. But the government’s authority to do so is not completely unlimited since the majority also recognizes that such authority must be exercised consistently with the Crown’s duty to consult. By contrast, the dissent takes a more robust view of the coverage of the land claims agreement and as a result limits the capacity of governments to create a parallel normative world that sidelines negotiated arrangements for autonomy.

Differential Treatment of Equality Law post-Kapp

By Jennifer Koshan

On May 25, 2010

In Aboriginal, Constitutional

By: Jennifer Koshan

PDF Version: Differential Treatment of Equality Law post-Kapp

Case Commented On: Woodward v Council of the Fort McMurray No. 468 First Nation, 2010 FC 337

There have been several posts on ABlawg concerning the Supreme Court’s most significant equality rights decision of late, R v Kapp, 2008 SCC 41. Jonnette Watson Hamilton nominated Kapp as the leading equality rights case of the 2000s. She and I have also written on the application of Kapp (or lack thereof) in cases such as Ermineskin Indian Band and Nation v Canada, 2009 SCC 9; Morrow v Zhang, 2009 ABCA 215 (see also here); and Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239. We are hosting a continuing legal education session on Litigating Equality Claims Post-Kapp on June 15, 2010, and hope to have a good turnout of equality rights litigators, judges and NGOs to discuss the implications of Kapp (note: the last date to register is June 1, 2010). The need for this session is real because, even two years post-Kapp, some lower courts continue to ignore the ruling in that case. The latest example is a decision of Justice James O’Reilly of the Federal Court in a case involving voting rights of non-resident members of the Fort McMurray First Nation in Woodward v Council of the Fort McMurray No.468 First Nation.