Category Archives: Aboriginal

Indigenous Law, the Common Law, and Pipelines

By: Kent McNeil

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Matter Commented On: Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264 (CanLII)

The extent to which Indigenous law is part of Canadian law along with the common law and civil law has become a major issue over the past two decades. Judges have been reluctantly wading into the matter, expressing somewhat inconsistent opinions. A recent example is in Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264 (CanLII), involving an application by a pipeline company for an interlocutory injunction.

Members of the Wet’suwet’en Nation in British Columbia oppose construction through their territory of a natural gas pipeline that would terminate at Kitimat on the West Coast (Shiri Pasternak, “No, those who defend Wet’suwet’en territory are not criminals”, The Globe and Mail (12 February 2020)).  They set up blockades on service roads to prevent the project from proceeding, leading to the injunction application, which Justice Marguerite Church of the BC Supreme Court granted.

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The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 2

By: Howard Kislowicz and Robert Hamilton

 PDF Version: The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 2

Case Commented On: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII)

In our last post, we laid out some background on how the standard of review applies in cases involving the Crown’s constitutional duty to consult and accommodate (DTCA) Indigenous peoples. We argued that the changes brought by Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) with respect to statutory appeals – where a statute provides that a government decision may be appealed to a court – might allow legislatures to insulate the decisions of the executive by subjecting them to a “palpable and overriding error” standard of review rather than a reasonableness standard. In this post, we look at the other, more common kind of case that arises in administrative law: judicial scrutiny of government decisions through an application for judicial review. Here, the standard of review analysis differs.

In applications for judicial review, Vavilov establishes a general presumption that the standard of review for an administrative decision will be reasonableness (at paras 23–32). However, it also carves out some exceptions to this presumption, in which the standard of review will be correctness. The relevant exception for this post is for questions regarding “the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982” (at para 55). Important ambiguities persist about what this means for the DTCA. On one hand, DTCA litigation does not determine Aboriginal rights. The DTCA was designed to apply where the Crown considered an action that could impact an Aboriginal right that had not yet been adjudicated. Though it was later extended to established rights, it remains a procedural duty on the Crown rather than an Aboriginal right per se). If this is the case, this would suggest that the correctness exception does not include DTCA issues. On the other hand, the DTCA is a constitutional obligation understood as a limit on the exercise of sovereignty; it shares much in common with the other issues to which Vavilov applies the correctness standard. We argue that the logic supporting the existence of the constitutional exception in Vavilov also supports the application of the correctness standard to a broader range of DTCA issues than is currently the practice. This post considers how Vavilov may have changed considerations of judicial reviews arising in DTCA contexts.

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The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 1

By: Howard Kislowicz and Robert Hamilton

PDF Version:  The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 1

Case Commented On: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII)

This is a two-part post that examines the potential impact of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) on the Crown’s duty to consult and accommodate (DTCA) Indigenous peoples. Part 1 deals with statutory rights of appeal. Part 2 deals with applications for judicial review. Other ABlawg contributors have touched on related questions; Nigel Bankes’ “Statutory Appeal Rights in Relation to Administrative Decision-Maker Now Attract an Appellate Standard of Review: A Possible Legislative Response” is particularly relevant, as is Shaun Fluker’s post “Vavilov on Standard of Review in Canadian Administrative Law.”

The Supreme Court’s decision in Vavilov (and the Vavilov-trilogy as a whole) was intended by the Court to provide much needed clarity to Canadian administrative law. The impact of the decision is clear: it has been cited by no fewer than 1500 lower court decisions in less than a year. Despite the Court’s attempt at comprehensive refinement of the doctrine, however, Vavilov left considerable uncertainty concerning the applicability of the new rules in the context of the Crown’s DTCA Indigenous peoples. Two things lead to this uncertainty. Vavilov changes the standard of review analysis in two kinds of cases: (1) where a court reviews an administrative decision under a statutory appeal mechanism, and (2) where a court reviews an administrative decision through an application for judicial review. The first uncertainty arises in relation to statutory appeals. Under Vavilov, the standard of review on statutory appeals follows the case law on appeals: questions of law will generally be reviewed on a correctness standard and questions of fact or mixed fact and law will be reviewed on the palpable and overriding error standard (Vavilov at para 37; Housen v Nikolaisen, 2002 SCC 33 (CanLII)). In the context of the DTCA, uncertainty attends the application of this framework, as it appears to secure greater judicial deference to decision-makers on issues of fact and mixed fact and law. Because of this, it appears to be possible for a legislature to ensure greater judicial deference for executive action (such as ministerial decisions) where it anticipates issues with the DTCA through the inclusion of a statutory right of review. This seems contrary to Vavilov’s reasoning that statutory appeals are indications that the legislature prefers less, rather than more, deference. It is not clear that the court contemplated this possibility and, if so, whether it considered it an acceptable consequence of the doctrinal refinement.

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Bill 1: Criminalizing Protests and Encroaching on Aboriginal and Treaty Rights

By: Alexandra Heine and Kelly Twa

PDF Version: Bill 1: Criminalizing Protests and Encroaching on Aboriginal and Treaty Rights

Bill Commented On: Bill 1, the Critical Infrastructure Defence Act, 2nd Sess, 30th Leg, Alberta, 2020

This is the second part of a two-part series on Bill 1, the Critical Infrastructure Defence Act, 2nd Sess, 30th Leg, Alberta, 2020. Professors Jennifer Koshan, Lisa Silver, and Jonnette Watson Hamilton authored the first post, Protests Matter: A Charter Critique of Alberta’s Bill 1, which explores Bill 1’s lack of compliance with sections 2(b), 2(c), 2(d), 7, and 15 of the Canadian Charter of Rights and Freedoms. The first post also offers an overview of Bill 1 and importantly, it offers examples of the type of activities that appear to contravene Bill 1:

  • A vigil for Regis Korchinski-Paquet is held in Olympic Plaza—a square in downtown Calgary—in conjunction with Black Lives Matters protests across the country. The vigil spills onto Stephen Avenue Mall, where bicycles are permitted.
  • Indigenous persons and their allies hold a protest against construction of a pipeline on-site in northern Alberta.
  • Workers rally in a parking lot outside a meat packing plant to bring attention to the gendered and racialized impact of the Alberta government’s response to COVID-19.
  • Persons with disabilities and their allies protest cuts to AISH on the sidewalk adjacent to the High Level Bridge in Edmonton.
  • LGBTQ2S+ groups hold a sit-in under a flagpole on the grounds of the Alberta Legislature after the Pride flag is taken down only one day into Pride month.

As noted in the first post, these peaceful protesters could be subject to immediate arrest by the police, increasing the potential for further conflict between law enforcement and the public.

This second post examines how Bill 1 treads on the federal government’s criminal law powers under section 91(27) of The Constitution Act, 1867 and provides commentary on how the Bill threatens Aboriginal rights under section 35 of The Constitution Act, 1982.

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Whose Sovereignty is it Anyway? The Borders of Aboriginal Rights along the Sovereign Borders of Canada

By: Scott Carrière

PDF Version: Whose Sovereignty is it Anyway? The Borders of Aboriginal Rights along the Sovereign Borders of Canada

Case Commented On: R v Desautel, 2019 BCCA 151 (CanLII)

On October 24, 2019, the Supreme Court of Canada agreed to hear the Crown’s appeal from the British Columbia Court of Appeal’s decision in R v Desautel, 2019 BCCA 151 (CanLII) (Desautel). The Crown characterized the case as one of national significance, and the country’s highest court has decided to hearthe case despite Desautel’s unanimous three-judge decision. It is difficult to disagree; the case raises issues surrounding the role of Canadian sovereignty in the application of Aboriginal rights and the guarantees of section 35 of The Constitution Act, 1982. Sovereignty inherently implicates all Canadians, thus the Court of Appeal’s reasoning deserves careful scrutiny on this matter.

In Desautel, the Court of Appeal upheld the acquittal of Richard Desautel for hunting without a licence contrary to the Wildlife Act, RSBC 1996, c 488. It did so by affirming his section 35 Aboriginal right to hunt in an area in southeastern British Columbia, having satisfied the test for such rights set down by the Supreme Court of Canada in R v Van der Peet, 1996 CanLII 216 (SCC). Desautel, however, is an American; he has never lived in British Columbia, nor is he a Canadian citizen. He is a member of the Lakes Tribe of the Colville Confederated Tribes (CCT) living on the Colville Indian Reserve in Washington (Desautel at paras 4 – 5). The basis for the rights claim was CCT’s status as successor to the Sinixt, a people whose traditional territory straddled the Canada-US border and who crossed the border frequently even into the 20th century. The case therefore turned on whether section 35 could apply to non-Canadians and how to reconcile the assertion of sovereignty in the context of modern borders (Desautel at para 3).

This post will examine the British Columbia Court of Appeal’s analysis of the interplay of Canadian sovereignty and Aboriginal rights that arose in Desautel. It will not attempt to predict how the Supreme Court of Canada may approach the Crown’s appeal, but will reflect on ambiguities not addressed by British Columbia’s top court and how they might play out in Alberta and elsewhere in Canada. Continue reading →