Category: Indigenous Page 3 of 8

Matter Commented On: Bill C-61, An Act respecting water, source water, drinking water, wastewater and related infrastructure on First Nation lands, First Session, Forty-fourth Parliament, 70-71 Elizabeth II – 1-2-3 Charles III, 2021-2022-2023-2024

PDF Version: Who’s Afraid of the Proposed First Nations Clean Water Act?

On June 30, Alberta’s Minister of Environment and Protected Areas and Ontario’s Minister of Environment Conservation and Parks penned a remarkable letter to their federal counterpart, Ms. Julie Dabrusin, Minister of Environment and Climate Change (for Alberta’s Press Release see here). The joint letter asserted that “Canada is poised to be an economic superpower, but achieving that potential depends on strong, constitutionally grounded provincial authority over resource development and environmental management.” With that as the premise, the two Ministers went on to indicate that they had a number of “urgent requests” that they would like to discuss “immediately” with their federal counterpart, namely:

Repealing the Impact Assessment Act and the Physical Activities Regulations.
Repealing the Clean Electricity Regulations.
Repealing the Greenhouse Gas Pollution Pricing Act and associated regulations.
Amending the Species at Risk Act to respect the constitutional jurisdiction of the
Suspending the proposed Oil and Gas Sector Greenhouse Gas Emissions Cap Regulation.
Undertaking to refrain from reintroducing Bill C-61: An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation lands.

A Radical Departure: Remarks on Part II of Bill C-5 (the Building Canada Act)

By Martin Olszynski

On June 19, 2025

In Administrative Law, Energy, Environmental, Indigenous, Law Reform

By: Martin Olszynski

Matter Commented On: Part II of Bill C-5 (the Building Canada Act)

PDF Version: A Radical Departure: Remarks on Part II of Bill C-5 (the Building Canada Act)

On Tuesday, June 17^th, 2025, I had the opportunity to appear before the Senate in the context of its study of Bill C-5, Part II of which contains the Building Canada Act. Professor David Wright and I provided an initial analysis of this part of Bill C-5 shortly after it was tabled. As is my regular practice, this post includes my prepared remarks, which expand on some of that earlier analysis. I have also included hyperlinks where useful. In our initial post, Professor Wright asked whether Bill C-5 will allow Canada to ‘move fast and make things’ or ‘move fast and break things’? While it is still too early to answer that question from a project review perspective (the prospects, however, appear increasingly dim), it is now clear that as drafted Bill C-5 breaks fundamental democratic norms, at the least, and that our democracy and the rule of law will be diminished for it.

Provincial Referendum Legislation, Citizen-Led Secession Proposals, and Non-Derogation Clauses

By Nigel Bankes

On June 11, 2025

In Constitutional, Indigenous, Treaty Rights

By: Nigel Bankes

Bill Commented On: Bill 54, Election Statutes Amendment Act

PDF Version: Provincial Referendum Legislation, Citizen-Led Secession Proposals, and Non-Derogation Clauses

In the dying hours of this last Legislative Session the Minister of Justice, Mickey Amery introduced a series of amendments (Amendment # A6, adopted May 14, 2025 and Hansard at 3494) to Bill 54, the Election Statutes Amendment Act. This is the Bill that will make it easier for parties to call for a citizen-led secession reference. One of the amendments related to proposed changes to the province’s Referendum Act, RSA 2000, c R-8.4. The amendment (the non-derogation clause or amendment) purports to clarify that:

Nothing in a referendum held under this Act is to be construed as abrogating or derogating from the existing aboriginal and treaty rights of the aboriginal peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982.

“Get the province of Alberta in line”: Treaty Promises, Provincial Power, and the Role of Indigenous Nations in Discussions on Alberta Secession

By Robert Hamilton

On May 30, 2025

In Aboriginal, Indigenous

By: Robert Hamilton

Matter Commented On: Alberta Separatism

PDF Version: “Get the province of Alberta in line”: Treaty Promises, Provincial Power, and the Role of Indigenous Nations in Discussions on Alberta Secession

With the Liberals forming a minority government in last month’s election, and a small but vocal contingent of Albertans seemingly enamoured with President Trump’s suggestion that Canada become a state, the possible secession of Alberta is in the news cycle again. In 2019, the possibility of western separation made headlines as Jack Mintz and others made the case for the benefits to Alberta (see here). Premier Danielle Smith has given oxygen to the renewed debate by introducing legislation that would lower the threshold for initiating provincial referenda. While she has denied supporting separation, her moves, including her participation at a pro-separation rally held at the Alberta legislature on May 3 and her statement that she will put the issue to a referendum if it gathers enough support, have energized the movement. This has drawn responses from Indigenous Nations across the province. Recently proposed amendments which would add a non-derogation clause purporting to protect treaty rights (discussed by Nigel Bankes in a forthcoming post) has done little to reduce opposition.

Modern Treaties, Shared Territories and Party Status in Aboriginal Title Litigation

By Nigel Bankes

On September 23, 2024

In Aboriginal, Indigenous, Treaty Rights

By: Nigel Bankes

Case commented on: Malii v British Columbia, 2024 BCSC 85 (CanLII), aff’d Nisg?a’a Nation v Malii, 2024 BCCA 313 (CanLII)

PDF Version: Modern Treaties, Shared Territories and Party Status in Aboriginal Title Litigation

Overlapping claims and shared territories present challenges in the negotiation of modern treaties that are best worked out by the Indigenous Nations themselves, drawing on their own laws and protocols. But this does not always prove possible and one party or another may initiate litigation in the courts of the settler state. Unfortunately, this is not uncommon and there are now dozens of cases dealing with overlapping claims or shared territories in the context of modern treaty negotiations. One group of cases deals with the scenario in which Nation A is moving to finalize a modern treaty with the Crown, while Nation B takes the view that the territory encompassed by the proposed treaty is territory that Nation B also used more or less intensively. Nation B therefore files a competing claim and also seeks injunctive relief to prevent finalization or ratification of the proposed treaty. The courts have typically rejected applications for injunctive relief and the substantive claims may drag on for years if not decades. A case in point is the Benoanie litigation in which the applicant Nations with reserves in Northern Manitoba and Saskatchewan sought to enjoin ratification of the Nunavut Agreement: Fond du Lac Band et al v Canada (Minister of Indian and Northern Affairs, 1992 CanLII 2404 (FC).