Category Archives: Aboriginal

Recent Developments in the Black Bear Crossing Dispute

Cases considered: Tsuu T’ina Nation v. Bearchief, 2008 CanLII 55966 (S.C.C.)
 

PDF Version:  Recent Developments in the Black Bear Crossing Dispute

As noted in my previous post on Tsuu T’ina Nation v. Bearchief, the Tsuu T’ina Nation was effectively prevented from enforcing an eviction notice against residents of Black Bear Crossing (BBC) whose band membership was disputed, until such time as the membership of the residents was resolved. The Tsuu T’ina’s application for leave to appeal to the Supreme Court of Canada was denied by Chief Justice Beverley McLachlin and Justices Morris Fish and Marshall Rothstein on October 30, 2008 (with costs against the Tsuu T’ina Nation).

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Water management planning and the Crown’s duty to consult and accommodate

Cases Considered: Tsuu T’ina First Nation v. Alberta, 2008 ABQB 547

PDF Version: Water management planning and the Crown’s duty to consult and accommodate

*Thanks to Christina Smith and Monique Passelac-Ross for comments on an earlier draft.

Alberta’s new Water Act (R.S.A. 2000, c. W-3) calls for the development of water management plans (Part 2(1) of the Act). Once adopted, a water management plan will guide decision-making within the area of the plan on a range of matters, including the issuance and transfer of water licences. Because of concerns that the waters in parts of the South Saskatchewan River Basin (SSRB) were already over-allocated, the Government put a priority on developing a plan for the SSRB. The first phase of the plan was approved in June 2002 and the second and final phase was approved by Cabinet in August 2006 (http://environment.alberta.ca/documents/SSRB_Plan_Phase2.pdf).

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No Costs Awarded for Failure to Prosecute Aboriginal Fishing Rights Case

Cases Considered: R. v. Nest, 2008 ABQB 323

PDF Version:  No Costs Awarded for Failure to Prosecute Aboriginal Fishing Rights Case

Donald Marshall, David Milgard, and Guy Paul Morin are the troika of wrongful conviction cases in Canada, bringing to mind overzealous prosecution of innocent persons and the compensation required to right those wrongs. But what about the opposite scenario, where the failure to prosecute is alleged to constitute a rights infringement deserving of compensation? This was the argument made by the claimants in a recent Alberta case.

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What Happens when Parties Operate an Oil Battery Without a Formal Agreement?

Cases Considered: Husky Oil Operations Limited v. Gulf Canada Resources Limited 2008 ABQB 390

PDF Version: What happens when parties operate an oil battery without a formal agreement?

Husky Oil has complicated facts, some complex law (unjust enrichment, fiduciary obligation, rectification) and a confusing judgment, but surely only one possible result. Indeed, we wonder why it ever went to court at all.

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Eviction Notice Effectively Stayed for Residents of Black Bear Crossing

Cases Considered: Tsuu T’ina Nation v. Bearchief, 2008 ABCA 74

PDF Version: Eviction Notice Effectively Stayed for Residents of Black Bear Crossing

Black Bear Crossing (“BBC”) consists of 161 units on the former barracks of the Canadian Armed Forces, situated on 940 acres on the northeast corner of the Tsuu T’ina reserve. The residences have been occupied by Tsuu T’ina Band members, as well as those claiming Band membership, since Canadian Forces personnel moved out when the base was decommissioned in 1996. In 1998, four Tsuu T’ina families who had been unable to find affordable housing moved into the unoccupied residences and within a month, most of the BBC units were occupied.

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