Category: Aboriginal Page 9 of 32

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.

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

By Scott Carrière

On January 20, 2020

In Aboriginal, Constitutional

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 20^th 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.

Albexit/Wexit/Albwexit and the Rights of Indigenous Peoples

By Robert Hamilton

On November 1, 2019

In Aboriginal

By: Robert Hamilton and David V. Wright

PDF Version: Albexit/Wexit/Albwexit and the Rights of Indigenous Peoples

Matter Commented On: Secession by Alberta or Western Provinces

Talk of western alienation has been on the rise over the past year, reaching a point where notions of secession by one or more western provinces is a daily focus of headlines (see e.g. here and here) and social media threads. Most recently, this is visible in the #wexit hashtag that has been circulating since the re-election of the Liberal government. While the specifics around secession are thin, a reasonably representative version can be found in an op-ed penned by Dr. Jack Mintz in the Financial Post late last year. His version of Alberta separatism is a decent starting point for analysis of the matter, though we note that his focus was on “Albexit” as opposed to “Wexit”. Dr. Mintz was riding the prevailing winds at that time, which have only seemed to intensify. His argument, put briefly, is this: Alberta would benefit significantly from secession and, while Alberta leaving the federation may seem unlikely, so too did Britain leaving the EU until it voted to do so. If it happened there (in principle), he reasoned, what’s to say it can’t happen here. We ask, then, is this a tenable argument? Setting aside complications apparent in the final Brexit steps, does the Wexit or Albexit idea withstand scrutiny?

Crown Consultation Obligations and a National Infrastructure Corridor: Simple Meets Complex

By David V Wright

On October 15, 2019

In Aboriginal, Energy, Environmental

By: David V. Wright

PDF Version: Crown Consultation Obligations and a National Infrastructure Corridor: Simple Meets Complex

Matter Commented On: National Infrastructure Corridor

Renewed interest in a cross-Canada infrastructure corridor has surfaced in recent months and weeks, including as a federal election issue. Details were thin in the recent Conservative campaign announcement, but a substantial amount of information about a similar concept can be found in a 2017 report from the Senate Committee on Banking Trade and Commerce (the focus of the former is on an ‘energy corridor’ while the focus of the latter and the below-cited article by Sulzenko and Fellows is on a multi-modal infrastructure corridor). That report rightly acknowledges that “such a major undertaking – which would require the accommodation of a multitude of varying interests and priorities – would undoubtedly be difficult to complete, and a number of complex issues – including in relation [to] Indigenous peoples, financing and the environment – would need to be addressed” (p 12). In this post, I provide a brief overview and initial comments in relation to a fundamental “complexity” pertaining to the corridor concept: Crown consultation and accommodation duties with respect to the Indigenous peoples of Canada.

Gladue Factors: Still Not a “Race-Based Discount”

By Amy Matychuk

On July 8, 2019

In Aboriginal, Sentencing

By: Amy Matychuk

PDF Version: Gladue Factors: Still Not a “Race-Based Discount”

Case Commented On: R v Matchee, 2019 ABCA 251

In R v Matchee, Justices Patricia Rowbotham, Ritu Khullar, and Dawn Pentelechuk of the Alberta Court of Appeal (ABCA) overturned Alberta Court of Queen’s Bench Justice Eldon J. Simpson’s sentencing decision because it did not give proper effect to Gladue factors (named for the case that created them, R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC)). The ABCA sentenced the offender afresh, substituting a six-year sentence for the original seven-year sentence (though with the deduction of three years 7.5 months credit for pre-sentence custody the remaining sentence was two years 4.5 months). The ABCA also commented on the correct application of Gladue factors, which are frequently misapplied and misunderstood as a “race-based discount” rather than “a partial remedy for the systemic discrimination suffered by [A]boriginal people which has led to their overrepresentation in the criminal justice system” (at para 31).

Category: Aboriginal Page 9 of 32

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

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

Albexit/Wexit/Albwexit and the Rights of Indigenous Peoples

Crown Consultation Obligations and a National Infrastructure Corridor: Simple Meets Complex

Gladue Factors: Still Not a “Race-Based Discount”