Canada: Aboriginal Law @ Gowlings, February 17, 2012 - Newsflash

Last Updated: February 22 2012
Article by Maxime Faille


January 25, 2011

Federal Court finds 2011 Census and National Household Survey not discriminatory

The Federal Court found that the 2011 Census and National Household Survey did not infringe the equality rights (s. 15 of the Canadian Charter) of off-reserve Aboriginal people because no distinction was made based on aboriginality or non-residence on reserve. The Court found that in order for s. 15 to invalidate a law, the law itself must be discriminatory; a discriminatory effect is not sufficient.

Native Council of Nova Scotia v. Canada (Attorney General), 2011 FC 72

January 28, 2011

Limitation laws apply to Aboriginal constitutional claims

The Alberta Court of Appeal found that the Athabasca Chipewyan First Nation had exceeded the limitation period in a judicial review of oil and gas leases granted to Shell Canada Ltd. The Court expanded on the Supreme Court decision Lameman, which stated that limitation laws apply to Aboriginal constitutional claims in the same way as they apply to any other claims affected by a limitation period. While Lameman was rendered in a historical claims context, the present case dealt with the duty to consult on treaty lands for oil and gas leases.

Athabasca Chipewyan First Nation v. Alberta (Minister of Energy), 2011 ABCA 29

February 15, 2011

Maa-nulth Final Agreement in force

The Maa-nulth First Nations Final Agreement Act was declared in force between the Government of Canada, the Government of British Columbia and the five Maa-nulth First Nations of the West coast of Vancouver Island. As a unique multi-nation self-government agreement, it sets out elements that are both specific and aggregated for each First Nation. The Agreement requires Maa-nulth First Nations to have constitutions that provide for governments that are democratically and financially accountable. With the exception of determining Indian status and a transition period for phasing out the Indian Act tax exemption, the Indian Act will no longer apply. Each First Nation government will have the ability to levee direct taxes on its members and with the Treaty settlement lands.

February 18, 2011

Consultation in the context of Environmental Assessment

The British Columbia Court of Appeal dismissed the appeal of the Nlaka'pamux Nation Tribal Council (NNTC), which found that the provincial Environmental Assessment Office (EAO) acted reasonably by not including the NNTC on an order commencing an environmental assessment process for a landfill extension, given that the First Nation did not assert a right to participate in the process. The NNTC had claims for Aboriginal rights and title on the land subject to the assessment. The duty to act honourably towards First Nations makes consultation a constitutional imperative that cannot be compromised in order to make the environmental assessment process more efficient. However, the Court found it was incumbent on First Nations to assert a right to participate in the process. The Court declared that the EAO order did not adequately establish a basis upon which the NNTC could be consulted, but the order was not quashed given the NNTC's failure to uphold their end of the consultation.

Nlaka'pamux Nation Tribal Council v. British Columbia (Environment Assessment Office),  2011 BCCA 78

February 21, 2011

Yukon First Nation adopts own justice system

Council for the Teslin Tlingit signed a historic agreement with the territorial and federal governments to run its own justice system. The agreement allows the Teslin Tlingit to enact its own laws, including wildlife protection, control of the First Nation's settlement land, and local zoning and planning. This justice system will apply to the First Nation's own citizens, regardless of where they are situated in the Yukon, and to non-citizens who are visiting or residing on Teslin Tlingit's traditional lands. The First Nation will also establish a "peacemaker court" to prosecute violations of its legislation, impose penalties and resolve disputes based on traditional processes. The Teslin Tlingit will not however take over criminal law cases or matters under federal jurisdiction, such as national security.

February 21, 2011

Signature of Collaboration Agreement for gold mine in northern Québec

The Grand Council of the Crees (Eeyou Istchee), the Cree Regional Authority, the Cree Nation of Wemindji and Goldcorp Inc. entered into the Opinagow Collaboration Agreement regarding the development and operation of a gold mine in Cree territory. 

Through this agreement, the Crees have demonstrated their commitment to collaborate with Goldcorp and Opinaca (a subsidiary of Goldcorp) with respect to this new gold mine in Cree territory. The agreement, which will be in effect for the life of the mine, contains various provisions regarding Cree involvement in the development of the Éléonore Gold Project, including employment and business opportunities and training and education initiatives. Moreover, the agreement aligns the parties' respective interests in the economic success of the project and ensures that the Crees will receive financial benefits through different payment mechanisms and participation in the profitability of the mine. Gowlings represented the Grand Council of the Crees (Eeyou Istchee) and the Cree Regional Authority in these negotiations.

February 22, 2011

Court of Appeal refuses to hear fishing violation appeal

The British Columbia Court of Appeal and the Supreme Court of Canada refused to hear an appeal from the summary convictions of two members of the Beaver Lake Cree Nation, who were convicted of selling fish on reserve without a commercial license. As a result, the Supreme Court decision of Cardinal v. Alberta (Attorney General), which found that treaty rights to commercial hunting in Alberta were extinguished by the Natural Resources Transfer Agreement in 1930, remains valid, regardless of the subsequent adoption of section 35 of the Constitution Act, 1982.. As such, Alberta had the power to regulate the sale of fish in the province.

R. v. Cardinal, 2011 ABCA 72

February 25, 2011

Sinixt First Nation unsuccessful in injunction against logging in ancestral territory due to lack of standing

The Supreme Court of British Columbia refused to cancel a timber sale licence as sought by the Sngaytskstx First Nation (Sinixt) for lack of consultation on the grounds that the there was no defined collective. The Court found that there must be a defined collective to trigger the duty to consult and that the Sinixt did not meet this criteria. Furthermore, the Sinixt were found to lack the requisite standing to represent the collective as the petitioners represented only a subset of Sinixt people and other Sinixt leaders objected to their representatives.

Campbell v. British Columbia (Forest and Range), 2011 BCSC 448

March 1, 2011

Provisions of Bill C-24, the First Nations Certainty of Land Titles Act in force

Bill C-24, the First Nations Certainty of Land Titles Act, came into force. The intent behind the Bill is to make the value of on-reserve development comparable to development on similar off-reserve properties. The Bill amends the First Nations Commercial and Industrial Development Act to allow for registration of on-reserve commercial developments within systems similar to provincial land title registration systems and will also make it possible in some circumstances for reserve land to be held in fee simple.

March 24, 2011

Court dismisses Aboriginal corporation's interlocutory application for an injunction to stop environmental assessment public hearings for a proposed hydroelectric project

The Government of Newfoundland and Labrador engaged Nalcor Energy to develop a hydroelectric project at Muskrat Falls. The project had made it to the public hearing stage of an environmental assessment. The Nunatukavut Community Council Inc. sought an interlocutory injunction to halt the hearings until its claims regarding consultation were dealt with. The Court dismissed this application on the grounds that Nalcor's losses would be substantial and that the Nunatukavut had been fully consulted and accommodated up to that point in the assessment process.

Nunatukavut Community Council Inc. v. Newfoundland and Labrador Hydro Electric Corporation (Nalcor Energy), 2011 NLTD 44

March 25, 2011

Federal Court grants order for advanced costs in Métis rights matter

The Congress of Aboriginal Peoples and individual plaintiff representatives were granted an advanced order for costs on the eve of trial by the Federal Court. The action was a request for a  declaration that Métis and non-status Indians are "Indians" for the purposes of section 91(24) of the Constitution Act, 1867, and had been previously funded under the Test Case Funding Program, which capped funding at $1.5 million. The Court found that the plaintiffs met the criterion for advanced costs, as per the test R. v. Caron, but maintained that the granting of a funding order was discretionary even if the moving party has met all the criteria.

Daniels v. Canada, 2011 FC 230

May 18, 2011

B.C. Court of Appeal affirms Nuu-chah-nulth right to commercial fishery

The British Columbia Court of Appeal recognized the right of the Nuu-chah-nulth First Nations to harvest and sell fish in their traditional territories based on findings of significant intertribal trade in fisheries products by their ancestors prior to European contact. While the Court maintained that the practice was not tied to "one species of fish and one product", it allowed the appeal in part, excluding the right to harvest and sell geoduck clams for which there was insufficient evidence to establish pre-contact practice. The Court upheld the finding of a prima facie infringement of the Nuu-chah-nulth's rights but provided the parties additional time to negotiate a regulatory regime to accommodate these rights.

Ahousaut Indian Band and Nation v. Canada (Attorney General), 2011 BCCA 237

May 24, 2011

Employees of native housing organization exempt from taxation

The Tax Court of Canada found that the Native employees' income was exempt from taxation under section 87 of the Indian Act. Using the connecting factors test, the Court determined that the work performed by the non-profit organization located close to the Reserve benefitted the Reserve by addressing the on-Reserve housing shortage, and thus the appellants were situated on Reserve as was the debt owed to them. Gowlings had the honour of representing the appellants in this case.  

Dugan v. The Queen, 2011 TCC 269

May 25, 2011

B.C. Court of Appeal upholds but modifies consultation and accommodation order

The British Columbia Court of Appeal agreed with the lower court's finding that the province had failed to consult adequately and meaningfully and failed to accommodate reasonably West Moberly's hunting rights with respect to a planned mining project. However, the lower court had ordered the province to undertake an "active plan for the protection and augmentation of the Burnt Pine caribou herd", which the Court of Appeal found went "beyond the scope of the duty of reasonable accommodation". As such, the Court of Appeal found the proper remedy was to set aside the order for specific accommodation and remit the issue back for further consultation between the parties.

West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247

May 27, 2011

Framework Agreement on Governance in the Eeyou Istchee James Bay Territory

The Grand Council of the Crees (Eeyou Istchee) and the Government of Québec signed a Framework Agreement on Governance in the Eeyou Istchee James Bay Territory.

The Framework Agreement will lead within one year to the negotiation of a Final Agreement on Governance which will expand Cree jurisdiction and powers over certain lands in their traditional territory.  It also provides for a new, inclusive form of regional government with expanded powers in part in the Territory, comprised of representatives of the Crees and the other residents of the Territory.  Gowlings represented the Grand Council of the Crees (Eeyou Istchee) in these negotiations.

June 1, 2011

Specific Claims Tribunal opens for business

The Specific Claims Tribunal officially opened its doors on June 1, 2011.  A specific claim is a claim filed by a First Nation for compensation for losses arising from the Crown's failure to fulfill, or breach of, a legal obligation. Compensation for claims under this new process is capped at $150 million and is available under three circumstances: 1) where the claim is outstanding after at least three years since it was filed and the Minister has not provided notification to the First Nation whether or not the claim will be negotiated; 2) where the claim has been filed with the Minister and the First Nation is notified that the claim will not be negotiated; or 3) in the course of negotiating a claim the Minister consents to filing the claim with the Tribunal. To date, 13 claims have been filed with the Tribunal.

July 21, 2011

Supreme Court of Canada decision on the constitutionality of the exclusivity of Métis membership pursuant to the Métis Settlement Act

The Supreme Court of Canada found that the Métis Settlement Act (Act) does not violate the equality provision of s. 15(1) of the Canadian Charter, by excluding membership to Métis who are also status Indians under the Indian Act.. The Court found that the Act was an ameliorative program pursuant to section 15(2) of the Charter, which permits the government to provide benefits to a specific, disadvantaged group without having to confer the same benefits to all. The Court found that the  purpose of the Act is the enhancement and preservation of the identity, culture and self-governance of the Métis through the establishment of a Métis land base. The Court found that excluding Métis who are also status Indians from formal membership in Métis settlements serves this purpose.

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37

July 25, 2011

Supreme Court of Canada breathes new life into First Nations tax immunity

The Supreme Court of Canada set aside the decisions of the lower courts when it decided that the interest income earned by two status Indians who invested in term deposits at on-reserve financial institutions was immune from taxation under section 87 of the Indian Act. The Court clarified that property of a "commercial" nature remains protected if it is located on reserve and that the property need not help "preserve the traditional way of life in Indian communities".  The Court held that the fact the bulk of the capital used to invest in the term deposits was not generated from tax-exempt activities did not outweigh the other factors connecting the income to the reserve.  Furthermore, the Court found that the expression "situated on a reserve" in section 87 means any reserve, not just a reserve where the Indian taxpayer resides to which community he or she belongs. This decision largely pushes aside the impediments created by the lower courts over the last 20 years which had lead to a gradual narrowing of the tax exemption. Gowlings represented the Assembly of First Nations, the Grand Council of the Crees and the Union of Nova Scotia Indians as interveners before the Supreme Court of Canada.   

Bastien Estate v. Canada, 2011 SCC 38; Dubé v. Canada, 2011 SCC 39

July 26, 2011

BC Treaty Commission has no duty to become involved the governance of First Nations

The Court dismissed a claim against the British Columbia Treaty Commission by several Chiefs and four Gitxsan bands for negligently providing funds to the Gitxsan Treaty Society to represent the plaintiffs in treaty negotiations despite their opposition. The Court did not find a sufficiently proximal relationship between the Chiefs and the Commission to ground a duty of care. The Court found the Commission does not have a duty to involve itself in the governance of a First Nation by acting to protect a minority interest within that First Nation and finding otherwise would subject the Commission to indeterminate liability. 

Spookw v. Gitxsan Treaty Society et al., 2011 BCSC 1001

July 28, 2011

Aboriginal rights must be considered when exercising discretionary powers under the Species at Risk Act

The Federal Court cancelled and remitted for reconsideration a decision of the federal Minister of the Environment refusing to recommend an emergency order for the protection of the seven herd of boreal caribou at risk under the Species at Risk Act (SARA).

The Court found the Minister was wrong not to take into account the First Nations' Treaty Rights to hunt caribou as a traditional way of life. The Minister was ordered not only to consider the First Nations' Treaty rights but also the extent to which Environment Canada's ongoing failure to implement SARA (including the failure to post a recovery strategy) was inconsistent with the Crown's duty to the First Nations. Furthermore, the Court found that an emergency order was only required if the entire species faced imminent threats, but could not see how the Minister could have concluded the species was not facing an imminent risk given the facts acknowledged in the decision.

Athabasca Chipewyan First Nation v. Canada (Minister of the Environment), 2011 FC 962

September 20, 2011

Tax Court finds fishing income and employment insurance benefits exempt from taxation

The Tax Court of Canada found that the fishing income and employment insurance benefits received by members of the Miawpukek First Nation in Newfoundland were exempt from taxation under section 87 of the Indian Act. The Court relied on the analysis established in the Supreme Court decision of Bastien Estate v. Canada to determine that the business income was exempt as it was "intimately connected" to the reserve on the basis that the McDonald lived on the Reserve, fished on vessels owned by the Band using licenses issued to the Band, performed some of their work on the Reserve and were paid on the Reserve by the corporation controlled by the Band.

McDonald v. The Queen, 2011 TCC 437

September 26, 2011

Ottawa Recognizes New Mi'kmaq Band in Newfoundland

The Qalipu Mi'kmaq First Nation Band was officially recognized by the federal government as having Indian Status under the Indian Act in September, 2011. While the Band will not have lands set aside for the creation of a reserve, it will have access to federal programs and services. It is expected that the Band will be comprised of over 20,000 members.

September 30, 3011

First Nations empowered to issue bonds to raise money for infrastructure projects

The new Financing Secured by Other Revenues Regulations will allow for the securitization of revenues from leases and permits, interest on deposits, and eligible business revenue, and therefore the issuance of bonds as early as March 31, 2012. These debentures are expected to raise significant revenue for participating First Nations to promote economic or social development, such as infrastructure projects, land purchases, and lease financing of capital assets for the provision of local services, in order to foster self-sufficiency and economic development for First Nations.

November 7, 2011

Status of Cree Community of Oujé-Bougoumou status formalized

With the signature of Complementary Agreement No. 22, the James Bay and Northern Quebec Agreement was amended to formally incorporate the Cree community of Oujé-Bougoumou. After having been displaced for generations, Oujé-Bougoumou, with the assistance of the Cree Nation, negotiated earlier agreements with both the Government of Québec and the Government of Canada for the construction of a new village, and also provided for negotiations to amend the JBNQA to include Oujé-Bougoumou.

Under the Complementary Agreement, land will be set aside for the exclusive use of the village of Oujé-Bougoumou. Further land will be allocated comparable to that of other Cree communities on which the Oujé-Bougoumou Cree will have exclusive rights of hunting, fishing and trapping. Gowlings represented the Cree Regional Authority in these negotiations.

November 10, 2011

Supreme Court of Canada dismisses B.C. First Nation's claim to commercial fishing

The Supreme Court of Canada dismissed the claims of the Lax Kw'alaams of British Columbia that they have the right to commercial harvesting and sale of "all species of fish" within their traditional waters and that the Crown owed a fiduciary duty to provide a preferential fishery based on promises they asserted were made during the reserve allocation process in the late 19th century. The Supreme Court affirmed that the characterization of a claim for an Aboriginal right is based on the pleadings and not an enquiry into pre-contact practices. While an Aboriginal right is not "frozen in time" at contact, evolution must occur with qualitative and quantitative boundaries and therefore cannot correspond to a completely different modern right. In this case the evidence only demonstrated that Lax Kw'alaams had a pre-contact trade practice of eulachon fish grease.

Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56

November 15, 2011

Duty to Consult triggered for granting of mineral claim

The Dena  requested a declaration from the Yukon Supreme Court that the territorial government has a duty to consult the Dena prior to recording the grant of a quartz mineral claim.  The Court ruled the duty to consult was triggered because a claim of Aboriginal title was properly asserted and the granting of a quartz mineral claim allowed the claimant to carry out certain exploration work which could affect the Dena's claimed rights. However, the Court found that the duty to consult only required the Crown to give notice to the First Nation after the claim was recorded. The Court also rejected the argument that the duty to consult can not arise if the honour of the Crown has been discharged. The declaration was suspended for one year to allow the Crown time to change its procedures.

Ross River Dena Council v. Government of Yukon, 2011 YKSC 84

November 29, 2011

Federal Legislation to Ratify the Eeyou Marine Region Land Claims Agreement

The Eeyou Marine Region Land Claims Agreement Act  received royal assent, giving effect to the constitutionally protected land claims agreement between the Grand Council of the Crees (Eeyou Istchee), Canada and Nunavut. 

The Agreement covers the islands and a marine region of over 60,000 square kilometers in Eastern James Bay and Southern Hudson bay along the shores of Quebec.  The main features include:

  • Recognition of Cree ownership over most islands in the area;
  • Establishment of co-management regimes for wildlife management, land use planning and impact review processes for development projects;
  • Financial compensation and implementation funding;
  • Share of royalty payments from natural resource extraction and guarantees in respect to government employment and contracts in the area.

The Act comes into force on February 15, 2012.  Gowlings represented the Grand Council of the Crees (Eeyou Istchee) in these negotiations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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