Category Archives: Aboriginal

Alberta Court of Appeal Rules on Role of Honour of the Crown and Reconciliation in AUC Rate Applications

PDF Version: Alberta Court of Appeal Rules on Role of Honour of the Crown and Reconciliation in AUC Rate Applications

Case Commented On: AltaLink Management Ltd v Alberta (Utilities Commission), 2021 ABCA 342 (CanLII)

The overarching mandate of the Alberta Utilities Commission (AUC or the Commission) is to ensure just and reasonable electricity rates for consumers, and much of the work they do is geared towards deciding whether the costs that businesses involved in the electricity sector have incurred or are set to incur can be passed down to ratepayers. AltaLink Management Ltd v Alberta (Utilities Commission), 2021 ABCA 342 (CanLII), a recent decision from the Alberta Court of Appeal (ABCA) adds a new dimension to what is usually a strictly fact-based economic calculation when the applicant is an Indigenous-owned company or partnership. The Court charts new territory by making it clear that the AUC’s decisions in such cases must uphold the honour of the Crown and be made in a manner consistent with the principle of Reconciliation. Continue reading →

Yahey v British Columbia and the Clarification of the Standard for a Treaty Infringement

By: Robert Hamilton & Nick Ettinger

PDF Version: Yahey v British Columbia and the Clarification of the Standard for a Treaty Infringement

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

On June 29, 2021, the Supreme Court of British Columbia ruled that the Crown had infringed Treaty 8 by “permitting the cumulative impacts of industrial development to meaningfully diminish [Blueberry River First Nation’s (Blueberry)] exercise of its treaty rights” (Yahey v British Columbia, 2021 BCSC 1287 (CanLII) at para 1884 [Yahey]). This is the first time a court has held that the cumulative effects of multiple projects may form the basis of a treaty infringement. The trial judge’s nuanced articulation of the standard for what constitutes a treaty infringement enabled this groundbreaking development (see paras 445-547). We reviewed the factual and legal findings of the decision in a previous post. This post unpacks the doctrinal aspects of treaty infringement in more detail to contextualize Justice Emily Burke’s navigation of infringement case law and formulation of the “significantly or meaningfully diminished” standard in Yahey (at para 541). While some pundits have interpreted Yahey to be a dramatic lowering of the standard for an infringement, we believe the decision is an insightful clarification and faithful application of Supreme Court precedent. Continue reading →

Blueberry River First Nation and the Piecemeal Infringement of Treaty 8

By: Robert Hamilton & Nick Ettinger

PDF Version: Blueberry River First Nation and the Piecemeal Infringement of Treaty 8

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

In a highly anticipated decision, the Supreme Court of British Columbia ruled on June 29, 2021 that the Province of British Columbia (BC) unjustifiably infringed the Treaty 8 rights of Blueberry River First Nation (Blueberry) by “permitting the cumulative impacts of industrial development to meaningfully diminish Blueberry’s exercise of its treaty rights” (Yahey v British Columbia, 2021 BCSC 1287 (CanLII) at para 1884 [Yahey]). The Court ordered the Province to consult and negotiate with Blueberry to establish regulatory mechanisms to manage and address the cumulative impacts of industrial development on Blueberry’s treaty rights. If a satisfactory solution is not reached within 6 months, the Province will be prohibited from permitting further industrial activity in Blueberry’s traditional territory (Yahey, para 1894), which overlies the vast natural gas and liquids resource of the Montney Formation in northeast BC. The Montney reserves form the anchor for LNG Canada’s $40 billion liquefied natural gas processing and export facility under construction at Kitimat, BC, which will be serviced by the Coastal GasLink Pipeline, as well as the planned Woodfibre LNG export terminal on the Howe Sound fjord near Squamish, BC. Continue reading →

Indigenous Law, the Common Law, and Pipelines

By: Kent McNeil

PDF Version: Indigenous Law, the Common Law, and Pipelines

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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