Category: Aboriginal Law

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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….

Can First Nations Claim Aboriginal Rights and Title as well as Treaty Rights?

August 11, 2015

  Yes, said the Court of Appeal for British Columbia (Court) in its recent decision in Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations). The Court found that the provincial Crown had not adequately consulted the Kwakiutl First Nation regarding provincial decisions between 2007 and 2012 to remove private lands from a Tree Farm Licence and to approve…

Declaration Requirement Removed from First Nation Consultation Procedures

June 30, 2015

  On June 10, 2015, the Alberta Energy Regulator (AER) released a revised version of the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities (Procedures) and Bulletin 2015-20. While the original Procedures remain largely intact, changes were made to section 2.3 — First Nations Impacts and Mitigation Table and section 4 — AER Application Requirements. The main…

Court Upholds First Nations’ Right to Bring Claims Based on Interference with Unproven Aboriginal Rights and Title

April 20, 2015

  In its recent decision in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., the Court of Appeal for British Columbia (BCCA) confirmed that First Nations may bring actions against private parties in nuisance and breach of riparian rights on the basis of unproven aboriginal rights and title claims as well as Indian reserve rights.  …

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