Category Archives: Aboriginal

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 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. Continue reading →

First Arbitration Award under the Nunavut Agreement

By: Nigel Bankes

Matter commented on: Arbitration Award in The Inuit of Nunavut as represented by Nunavut Tunngavik Incorporated v His Majesty the King in Right of Canada as represented by the Minister of Crown-Indigenous Relations and The Commissioner of Nunavut as represented by the Government of Nunavut, and the Government of Nunavut as represented by the Premier of Nunavut, and the Government of Nunavut, Initial Decision, March 25, 2023.

PDF Version: First Arbitration Award under the Nunavut Agreement

This is the first Arbitration Award under the revised dispute resolution provisions of the Nunavut Agreement (1993). The Nunavut Agreement is the constitutionally protected land claims agreement between the Inuit of Nunavut and the Governments of Canada (GoC) and Nunavut (GN). In this Award, the Honourable Constance Hunt, acting as the sole arbitrator, has issued a series of declarations concluding that Inuit Employment Plans (IEPs) prepared by each of the GN and GoC fell short of the obligations of government under the terms of Article 23 of the Nunavut Agreement (NA). Article 23 of the NA is entitled “Inuit Employment within Government”. Continue reading →

Law Society of Alberta to Hold a Special Meeting to Debate its Power to Mandate Indigenous Cultural Competency Training

By: Koren Lightning-Earle, Hadley Friedland, Anna Lund, Sarah N Kriekle, Heather (Hero) Laird

Matter commented on: Notice of a Special Meeting of the Law Society of Alberta dated January 26, 2023

PDF Version: Law Society of Alberta to Hold a Special Meeting to Debate its Power to Mandate Indigenous Cultural Competency Training

Editor’s Note: This is a guest post from our colleagues at the University of Alberta and in the legal profession in Alberta. A number of members of the University of Calgary Faculty of Law have signed the open letter referenced later in this post, a copy of which can be found here.

This post provides background information about the Special Meeting of the Law Society of Alberta, which will be held on Monday February 6, 2023. At Monday’s meeting, practicing lawyers in the Province of Alberta will be asked to vote on whether their self-governing organization should be able to mandate training on specific topics to ensure that lawyers in the province are minimally competent. Continue reading →

Tikanga Maori: The Application of Maori Law and Custom in Aotearoa/New Zealand

By: Kent McNeil

Matter Commented On: Ellis v The King, [2022] NZSC 114 (7 October 2022)

PDF Version: Tikanga Maori: The Application of Maori Law and Custom in Aotearoa/New Zealand

Editor’s Note: Please note that WordPress does not support the inclusion of accents on the Maori words in this post, but they appear in the official PDF version.

In October, New Zealand’s highest court released a landmark decision on the relationship between tikanga Maori (Maori law and practice) and the common law (for English translation of Maori terms, I rely on the Glossary in Carwyn Jones, New Treaty, New Tradition: Reconciling New Zealand and Maori Law (Victoria University Press, 2016) at xv-xvii). This decision has particular relevance for Canada because the place of Indigenous law in this nation is an emerging issue (Sébastien Grammond, “Recognizing Indigenous Law: A Conceptual Framework” (2022) 100:1 Can Bar Rev 1). In Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185 (CanLII), the Quebec Court of Appeal unanimously upheld the validity (with a couple of exceptions not relevant to our discussion) of federal legislation that acknowledged inherent Indigenous jurisdiction to make laws that would be enforceable in Canadian courts (for a series of ABlawg posts on this reference, see here). As this decision is currently under appeal to the Supreme Court of Canada, it is especially pertinent to consider how the New Zealand Supreme Court has dealt with the application of tikanga Maori. Continue reading →

Indigenous Jurisdiction and Bill C-92 at the Supreme Court of Canada

By: Kate Gunn

Case Commented On: Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185 (CanLII) (unofficial English translation)

PDF Version: Indigenous Jurisdiction and Bill C-92 at the Supreme Court of Canada

Persistent uncertainty regarding the extent to which governments in Canada are prepared to recognize and give effect to Indigenous Peoples’ inherent laws and jurisdiction remains a serious barrier to decolonization and reconciliation. In December 2022, the Supreme Court of Canada will consider this issue directly in the Bill C-92 Quebec Reference case. The Court will determine the constitutionality of federal legislation which affirms Indigenous Peoples’ right to regulate child and family services based on their inherent law-making authority. The decision will also have broader implications for the development of Aboriginal rights jurisprudence, including for Indigenous Peoples’ ability to make decisions based on their inherent laws. Continue reading →