Category: Aboriginal Law

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Federal Court of Appeal Says There is No Duty to Consult on Legislation

December 23, 2016

Does the Crown have a duty to consult when contemplating and introducing legislation that may adversely impact aboriginal rights? In its recent decision in Canada (Governor General in Council) v. Courtoreille, the Federal Court of Appeal (Court) said no, but the Court’s decision may not be the last word on the topic. BACKGROUND Chief Steve Courtoreille, on behalf of himself…

The Indigenous Experience in Corporate Canada

October 24, 2016

Blakes, together with OPG, RBC and TD, hosted a dynamic and insightful panel discussion with professionals of indigenous backgrounds. Our panellists shared their personal stories and experiences working within corporate Canada. They offered their perspectives on the opportunities and challenges for indigenous people working in corporations and the initiatives organizations can undertake to help foster an inclusive and supportive environment. Panel members…

Northern Gateway Project Approval Quashed Due to Inadequate Consultation

July 4, 2016

In its recent decision in Gitxaala Nation v. Canada, the Federal Court of Appeal (Court) quashed federal approval of the proposed Northern Gateway Project (Project). The Court held that although interested parties had ample opportunity to participate in the Joint Review Panel assessment process, the Government of Canada failed to adequately consult with First Nations before the governor-in-council (Cabinet) approved…

Viewpoint: The Great Debate, Part II: More People Appointed to Review Proposed Trans Mountain Expansion Project

May 19, 2016

In January 2016, I wrote an article about the commencement of the new federal government’s promised review of its environmental assessment process. Given that the existing process has been an issue that has seriously divided Canadians — and is of clear national importance — a review seemed timely. Then, nothing happened.  On May 17, 2016, the Minister of Natural Resources (Minister)…

Métis, Non-Status Indians Constitutionally Deemed “Indians”, Subject to Federal Jurisdiction

April 15, 2016

The Supreme Court of Canada (SCC) declared in Daniels v. Canada (Indian Affairs and Northern Development) that Métis and non-status Indians are “Indians” under section 91(24) of the Constitution Act, 1867, meaning they come within the federal government’s jurisdiction. The SCC’s ruling is intended to end the uncertainty that had resulted from prior federal and provincial refusals to take legislative…

Supreme Court to Hear Appeals on Role of Tribunals in Duty to Consult

March 14, 2016

The Supreme Court of Canada (SCC) has granted leave to appeal in two cases concerning the ability of a regulatory tribunal to discharge the Crown’s duty to consult. In Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS) (Clyde River), the Federal Court of Appeal held that where a board is mandated to engage in consultation, the Crown can…

Quebec’s Energy, Mining Sectors Searching for Clarity on Social Acceptability

March 7, 2016

On February 16, 2016, Quebec’s Energy and Natural Resource Minister Pierre Arcand tabled a green paper (referred to in French as the “Livre Vert”) at the National Assembly, outlining five guidelines regarding social acceptability as it relates to the use of public lands and the development of natural resource projects in Quebec (Green Paper). This Green Paper is the latest…

Viewpoint: The Great Debate, Part I: Canadian Government Announces Review of Federal Environmental Assessment Process

January 29, 2016

In 2012, I wrote an article about the Conservative government’s enactment of CEAA 2012 called “Fixing the Energy Approval Process in Canada.” For people who aren’t involved in environmental assessment (EA) processes, CEAA 2012 is short for the Canadian Environmental Assessment Act, 2012. CEAA 2012 was one of the pieces of federal legislation that became a lightning rod for complaints…

B.C. Has Authority to Impose Conditions on Northern Gateway Pipeline

January 19, 2016

In its recent decision in Coastal First Nations v. British Columbia (Environment), the B.C. Supreme Court (Court) held that the provincial government retains authority to impose conditions on the proposed Northern Gateway Project (Project). As a result, the federal-provincial agreement to proceed with a single environmental assessment of the Project does not mean that federal approval, and the 209 conditions…

Key Legal Considerations in Developing Partnerships with First Nations

November 18, 2015

When businesses look to form partnerships with First Nations, building an informal relationship often comes first, before legal terms are considered. Even at that early stage — well before you make any promises — it is valuable to consider your legal needs and options. Purpose of Arrangement The first and most fundamental consideration is the underlying purpose of the arrangement….

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