Category: Aboriginal Law

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Court Confirms Power of Alberta Aboriginal Consultation Office to Decide Who Gets Consulted

April 23, 2018

The Alberta Court of Queen’s Bench (Court) provided much-needed clarity about the role of the Alberta Aboriginal Consultation Office (ACO) and the duty to consult in Alberta in its decision in Athabasca Chipewyan First Nation v. Alberta (ACFN Decision). The ACFN Decision is one of a series of recent judicial review decisions that stem from questions about the role of…

Modern Treaty Rights Prevail Over Duty to Consult First Nations Asserting Aboriginal Rights

April 9, 2018

What happens when a First Nation asserts aboriginal rights or title that conflict with another First Nation’s rights under a modern treaty? In its recent decision, Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), the British Columbia Supreme Court (Court) ruled that in these circumstances, the “treaty right must prevail over the duty to consult [the…

Blakes Annual Aboriginal Law Update

February 14, 2018

Aboriginal issues continue to influence business decisions and government policies in energy, mining, infrastructure and other industries. Understanding recent legal developments and current trends is critical to implementing successful business strategies. This seminar discusses the current state of aboriginal law and its impact on your business. Topics Best practices in doing business with Aboriginal Peoples Key court decisions from 2017…

B.C. Court Decision Provides Example of the State of Indigenous Law in Canada

February 13, 2018

Court decisions can often provide learning opportunities — they establish legal principles, apply those principles to certain facts, and illustrate relative trends, or stability, in the law. The recent decision of the B.C. Supreme Court in Fort Nelson First Nation v. B.C. Oil and Gas Commission (Fort Nelson) provides a number of learning opportunities. It offers another data point on…

Implementing UNDRIP? Federal Government Releases Draft Environmental Legislation

February 12, 2018

On February 8, 2018, the Government of Canada introduced Bill C-69 to reform the federal environmental impact assessment process, replace the National Energy Board and amend the Navigation Protection Act. Two days earlier, Bill C-68 proposed amendments to the Fisheries Act. The proposed legislation provides the most significant illustration to date of how the federal government intends to meet its…

American Citizen Secures Aboriginal Rights in Canada

February 7, 2018

The British Columbia Supreme Court (BCSC) affirmed in R. v. DeSautel (DeSautel) that the constitutional protection of aboriginal rights in s. 35 of the Constitution Act, 1982 extends to an aboriginal group that resides in the United States. In doing so, the BCSC upheld a prior decision of the Provincial Court of British Columbia (Court). For further details, see our…

Yukon Must Follow Land Use Planning Process from Umbrella Final Agreement, SCC Rules

December 4, 2017

On December 1, 2017, in First Nations of Nacho Nyak Dun v. Yukon (Nacho Nyak Dun), the Supreme Court of Canada (SCC) overturned a Yukon government decision to open the Peel watershed for development and significantly modify the Peel Watershed Planning Commission’s (Commission) final recommended plan (Plan). The SCC ruled that the final agreements with a number of First Nations,…

Supreme Court Rejects First Nation’s Spiritual Objection to Ski Resort

November 3, 2017

On November 2, 2017, the Supreme Court of Canada (SCC) ruled in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) that a decision to approve the Jumbo Glacier Resort did not violate the Ktunaxa Nation’s (Ktunaxa) right to freedom of religion and did not breach the Crown’s duty to consult. The decision focuses on the reciprocal obligations…

Claimants of Aboriginal Title Over Private Lands Not Required to Notify Affected Landowners

September 26, 2017

In two decisions from September 2017, the British Columbia Supreme Court (Court) addressed the issue of whether to require a claimant for aboriginal title to serve formal notice on private registered owners of fee simple lands. In Cowichan Tribes v. Canada (Attorney General) (Cowichan Tribes) and The Council of the Haida Nation v. British Columbia (Council of the Haida Nation),…

SCC Confirms the Role of Regulatory Tribunals in Aboriginal Consultation

July 27, 2017

On July 26, 2017, the Supreme Court of Canada (SCC) released two decisions on the role of the National Energy Board (NEB) and other regulatory tribunals in aboriginal consultation: Clyde River (Hamlet) v. Petroleum Geo‑Services Inc. (Clyde River) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (Chippewas). The decisions are significant in clarifying the law in relation…

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