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Is the Act respecting First Nations, Inuit and Métis children, youth and families Constitutional?

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On April 28, 2022

In Aboriginal, Constitutional, Indigenous

By: Robert Hamilton

PDF Version: ­­Is the Act respecting First Nations, Inuit and Métis children, youth and families Constitutional? 

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) [quotations from the unofficial English translation]

Legislation Commented On: Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24

The Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24, [the Act] received royal assent on June 21, 2019, and came into force on January 1, 2020. The Act was developed over two years and through wide-ranging consultations. It is designed to gradually transfer control of child and family services to Indigenous nations and, through this, to ensure that fewer Indigenous children are removed from their families and communities. The intention is to mitigate the effects of the assimilationist policies that have been incredibly harmful to Indigenous children, families, and communities. The Act seeks to accomplish this by establishing national standards for the provision of child and family services and by providing a mechanism through which Indigenous laws – that is, the laws of Indigenous nations themselves – can take priority over inconsistent federal and provincial laws and govern the delivery of child and family services to Indigenous peoples (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), paras 4-5 [Reference]). Although it has faced thoughtful and considered criticism, it is clear the Act seeks to substantially change how child and family services are provided and to transition the governance and regulation of those services to Indigenous peoples.

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If A Land Claims Agreement Says That You Must Resolve The Dispute Through Arbitration, Then That’s What You Must Do

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On March 31, 2022

In Aboriginal

By: Nigel Bankes

PDF Version: If A Land Claims Agreement Says That You Must Resolve The Dispute Through Arbitration, Then That’s What You Must Do

Case Commented On: Newfoundland and Labrador v Nunatsiavut Government, 2022 NLCA 19 (CanLII)

If a land claims agreement says that you must resolve the dispute through arbitration, then that’s what you must do. That’s the blunt (and perhaps obvious) conclusion of the Newfoundland and Labrador Court of Appeal in this decision involving the terms of the Labrador Inuit Land Claims Agreement (Agreement). 

There could be little doubt that the Agreement did in fact stipulate that a dispute of this nature (a dispute relating to the determination and sharing of revenues from the Voisey’s Bay project) must be referred to arbitration (see the combined effect of ss 7.6.9 and 21.9.1of the Agreement, as discussed at paras 34 -52). But in this case, the Nunatsiavut government had submitted the dispute to the provincial superior court, and the provincial government had failed to take any objection to that course of action; until it lost at trial (Nunatsiavut Government v Newfoundland and Labrador, 2020 NLSC 129 (CanLII))and the matter went on appeal to the Court of Appeal.

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Indigenous Rights and Private Party Liability

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On January 26, 2022

In Aboriginal, Torts

By: Kent McNeil

PDF Version: Indigenous Rights and Private Party Liability

Matter Commented On: Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc, 2022 BCSC 15 (CanLII)

To what extent can private parties be held liable in tort law, specifically nuisance, for damage done to Indigenous rights? This was the issue in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc, 2022 BCSC 15 (CanLII) [Thomas]. In 1952, the Aluminum Company of Canada (now Rio Tinto Alcan Inc., or RTA) completed construction of a dam on the Nechako River in west-central British Columbia to generate electricity for its aluminum smelting operations. Construction of the dam had been authorized by agreements with and a licence from British Columbia pursuant to a provincial statute, the Industrial Development Act, SBC 1949, c 31, which had been enacted to facilitate construction of the hydroelectric dam (Thomas, paras 66-69). The company has abided by all the conditions of the agreements and the licence.

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

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On October 26, 2021

In Aboriginal, Energy

By: Kristen van de Biezenbos

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.

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

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On September 24, 2021

In Aboriginal, Treaty Rights

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.

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