Category: Aboriginal Law

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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.  …

Provincial Licence Doesn’t Promise Adequate Consultation with First Nations

March 23, 2015

  In its recent decision in Moulton Contracting Ltd. v. British Columbia, the British Columbia Court of Appeal (Court) held that the Province of British Columbia (Province) can contractually exclude liability for losses incurred by forestry companies and other licensees due to third parties’ interference with the licensees’ operations. The Court also dismissed the claim by Moulton Contracting Ltd. (Moulton)…

Procedures Introduced to Administer and Coordinate First Nation Consultation

February 10, 2015

  On February 4, 2015, the Aboriginal Consultation Office (ACO) and the Alberta Energy Regulator (AER) released the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities (Procedures). The Procedures were released in accordance with Energy Ministerial Order 105/2014 and Environment and Sustainable Resource Development Ministerial Order 53/2014 (Orders).   The Procedures expand upon The Government of Alberta’s…

Alberta Replaces Ministerial Order on Aboriginal Consultation

November 19, 2014

  On October 31, 2014, Alberta’s Minister of Energy and Minister of Environment and Sustainable Resource Development issued Energy Ministerial Order 105/2014, the Aboriginal Consultation Direction (Second Direction). This order repeals Ministerial Order 141/2013 and replaces the previous Aboriginal Consultation Direction issued on November 26, 2013 (First Direction).   From an industry perspective, the significance of the Second Direction is…

Alberta Finalizes First Nation Consultation Guidelines

August 5, 2014

On July 28, 2014, the Government of Alberta released the final version of its Guidelines on Consultation with First Nations on Land and Natural Resource Management (Guidelines). The Guidelines, and the Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management, 2013 (Policy), replace its former 2005 policy and 2007 guidelines. For industry, the primary…

Ontario Can “Take Up” Lands Under Treaty 3 Without Seeking Federal Approval

July 11, 2014

Today, the Supreme Court of Canada (SCC) released its decision in the Keewatin case, confirming that Ontario can “take up” lands in Treaty 3, in northwestern Ontario, without requiring preapproval from the federal government. This decision confirms that the provinces retain jurisdiction, as defined in the Constitution, over land ceded to the Crown by treaty with First Nations. The court…

Agreeing (How) to Disagree: Dispute Resolution Clauses in Impact Benefit Agreements with First Nations

March 19, 2014

  First Nations and resource companies commonly enter into impact benefit agreements (IBAs) and other related economic benefit agreements when a resource development project may potentially impact First Nations’ rights. While the avoidance of disputes is often the impetus behind IBAs, one often overlooked element of the IBA is how any future disputes under the IBA itself will be addressed….

Mining and Aboriginal Consultation in the Yukon

January 17, 2014

  Mining and Aboriginal Peoples are both significant aspects of life in the Yukon. The territorial government recently amended its mining legislation to require consultation of Aboriginal Peoples before exploration programs are undertaken. The Yukon Supreme Court also recently quashed the government’s approval of a proposed mining exploration project. These legal developments provide a timely reminder of the importance of…

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