Category: Aboriginal Page 3 of 31

British Columbia Free Entry Mining System Triggers Duty to Consult and Must Change: Gitxaala v British Columbia (Chief Gold Commissioner)

On October 18, 2023

In Aboriginal, Indigenous, Provincial Court

By: David V. Wright

Case Commented On: Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 (CanLII)

PDF Version: British Columbia Free Entry Mining System Triggers Duty to Consult and Must Change: Gitxaala v British Columbia (Chief Gold Commissioner)

The Supreme Court of British Columbia (BCSC) recently ruled that the existing mineral tenure system in the province triggers provincial Crown obligations to consult First Nations. While the duty to consult is now a relatively mature area of law in Canada that is “replete with indicia for what constitutes meaningful consultation” (Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 (CanLII) at para 41), some areas of uncertainty remain. This case dealt with one such long-standing question: does British Columbia’s “free entry” mineral tenure regime trigger the Crown’s duty to consult? This post discusses the findings of the court and briefly comments on implications of the decision for BC and the rest of Canada. My colleague Nigel Bankes recently wrote a post on the aspect of this decision pertaining to the United Nations Declaration on the Rights of Indigenous Peoples (here), and my other colleague, Dr. Elizabeth Steyn, will soon publish a post on the sacred sites dimension of the decision.

The Legal Status of UNDRIP in British Columbia: Gitxaala v British Columbia (Chief Gold Commissioner)

By Nigel Bankes

On October 5, 2023

In Aboriginal, Indigenous, International Law

By: Nigel Bankes

Case Commented on: Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 (CanLII)

PDF Version: The Legal Status of UNDRIP in British Columbia: Gitxaala v British Columbia (Chief Gold Commissioner)

This is the first of what we anticipate will be a series of posts on this important decision which involved a challenge to the implementation and/or constitutional validity of British Columbia’s hard rock mineral regime under the terms of the Mineral Tenure Act, RSBC 1996, c 292 [MTA]. Other posts will address the substance of the duty to consult and accommodate argument in the context of free entry regimes, as well as the sacred site issues discussed in the decision.

Counting Straws: Yahey v British Columbia and the Future of Cumulative Effects Management in Canada

By Martin Olszynski

On July 13, 2023

In Aboriginal, Environmental, Indigenous, Land Use

By: Martin Olszynski

Case Commented On: Yahey v British Columbia, 2021 BCSC 1287 (CanLII)

PDF Version: Counting Straws: Yahey v British Columbia and the Future of Cumulative Effects Management in Canada

Much has already been written about the British Columbia Supreme Court’s ground-breaking decision in Yahey v British Columbia, 2021 BCSC 1287 (CanLII) (also referred to as Blueberry River First Nation, BRFN, or simply Blueberry throughout). In Yahey, the Court agreed with the BRFN that, in the context of BFRN’s traditional territory in Northeastern British Columbia, “the cumulative effects of industrial development authorized by [British Columbia] have significantly diminished the ability of Blueberry members to exercise their rights to hunt, fish and trap in their territory as part of their way of life and therefore constitute an infringement of their treaty rights” (at para 3). My colleague Professor Robert Hamilton and former UCalgary Law JD student (now alumnus) Nick Ettinger wrote two outstanding blogs on the decision when it first came out: a first post summarized the decision, while a second focused on Yahey’s standard for treaty infringement, i.e., “meaningful diminishment”. They also published a law review article on the decision: Robert Hamilton and Nicholas P. Ettinger, “The Future of Treaty Interpretation in Yahey v British Columbia: Clarification on Cumulative Effects, Common Intentions, and Treaty Infringement,” 2023 54-1 Ottawa L Rev 109. In this (very) belated post spurred on by a presentation that I gave at an environmental law conference last month, I focus on the Court’s findings with respect to British Columbia’s approach to resource development, and specifically its failure to effectively manage the cumulative effects associated with oil and gas and forestry. In my view, and as further set out below, these findings and analysis are relevant to every level of government in Canada: federal, provincial, territorial, Indigenous, and municipal.

Canada’s Collaborative Modern Treaty Implementation Policy: A New Roadmap in a Long Journey

By David V Wright

On May 31, 2023

In Aboriginal, Indigenous

By: David V. Wright

Matter Commented On: Canada’s Collaborative Modern Treaty Implementation Policy

PDF Version: Canada’s Collaborative Modern Treaty Implementation Policy: A New Roadmap in a Long Journey

After years of requests and proposals from Indigenous Modern Treaty parties, the federal government has released Canada’s Collaborative Modern Treaty Implementation Policy. This is the latest development in a series of law and policy reforms introduced by the federal government in this area in recent years. The main purpose of the new policy is to “support the full, effective, and timely implementation of all current and future Modern Treaties in Canada, with the specific goal of advancing a systemic shift in institutional culture” (Crown-Indigenous Relations and Northern Affairs Canada, News Release, “Modern Treaty Partners and Canada Launch Co-Developed Policy to Transform Intergovernmental Relationships” (28 February 2023)). This short post explains the context into which the new Policy enters and provides a succinct overview of its contents.

Duty to Consult, Honour of the Crown, Project Assessment, and Land-Use Planning in a Modern Treaty Context: More Clarity from the Supreme Court of the Yukon

By David V Wright

On May 25, 2023

In Aboriginal, Energy, Indigenous, Natural Resources

By: David Wright

Matter Commented On: First Nation of Na-Cho Nyäk Dun v Yukon (Government of), 2023 YKSC 5 (CanLII) (Metallic Minerals)

PDF Version: Duty to Consult, Honour of the Crown, Project Assessment, and Land-Use Planning in a Modern Treaty Context: More Clarity from the Supreme Court of the Yukon

The duty to consult and accommodate is now a mature area of jurisprudence, including case law that is “replete with indicia” (Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 (CanLII) at para 41) of what constitutes meaningful consultation. One area that continues to evolve, however, is Crown consultation obligations and the honour of the Crown in modern treaty contexts. The landmark Supreme Court of Canada cases of Beckman v Little Salmon/Carmacks First Nation (2010 SCC 53 (CanLII)) and First Nation of Na-Cho Nyäk Dun v Yukon (2017 SCC 58 (CanLII)), both originating from lower courts in the Yukon, set out the contours of this legal landscape, but some uncertainty remains. In First Nation of Na-Cho Nyäk Dun v Yukon (Government of), 2023 YKSC 5 (CanLII) (Metallic Minerals), the Supreme Court of Yukon (YKSC) provides helpful judicial interpretation and observations in this area. In particular, Chief Justice Suzanne M. Duncan clarifies the law with respect to the Honour of the Crown and the duty to consult and accommodate in context of project-level assessment and land-use planning in the Yukon. This short post provides an overview of the case, as well as brief commentary regarding key points.