Archives: Aboriginal

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Supreme Court Dismisses Aboriginal Spiritual Rights Charter Claim

The Supreme Court of Canada (SCC) released a decision earlier today dismissing a novel Aboriginal freedom of religion Charter claim that was raised in opposition to a ski resort development in British Columbia: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (Ktunaxa).  This is a significant case as it … Continue Reading

The Role of Regulatory Tribunals in Aboriginal Consultation – The Key Takeaways from Hamlet of Clyde River and Chippewas of the Thames

On July 26, 2017, the Supreme Court of Canada (SCC) released its decisions in Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al.[1] (Clyde River) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al.[2] (Chippewas) (together, the Decisions). The Decisions concern the role of regulatory boards in … Continue Reading

In Pursuit of Sustainable Communities: Survey finds that Indigenous Participation is Driving Clean Energy Growth in Canada

A pioneering survey has found that Indigenous participation in Canada’s clean energy economy has grown rapidly over the past 20 years, in all regions of the country. Lumos Clean Energy Advisors (Lumos), an advisor to First Nations, Métis and Inuit communities, undertook a review of national research and drew on the company’s database of clean … Continue Reading

Indigenous and Northern Affairs Canada (INAC) portfolio to be split, in initial step towards ending the Indian Act and accelerating the move to self-government

On August 28, 2017, the Federal Government announced a cabinet shuffle that includes plans to split the current Ministry of Indigenous and Northern Affairs Canada (INAC) into two distinct Departments: (1) Crown-Indigenous Relations and Northern Affairs and (2) Indigenous Services.… Continue Reading

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada – Implementation Status Update

It has been over a year since the federal government announced at the UN Permanent Forum on Indigenous Issues that Canada was now a full and unqualified supporter of UNDRIP and that the federal government would be implementing UNDRIP in Canada (details here). Following that announcement, Canada indicated that it would be carrying out consultations … Continue Reading

Clarifying the Role of Regulatory Tribunals in Consultation – Canada’s Highest Court Releases Two Key Aboriginal Consultation Decisions

On July 26, 2017, the Supreme Court of Canada (SCC) released its decisions in Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al. These appeals, which were heard on November 30, 2016 and previously discussed here, relate to … Continue Reading

Change on the Horizon for Aboriginal Consultation and Involvement in Mining Projects

The rapidly evolving legal landscape for Aboriginal consultation and involvement in mining and other resource development projects in Canada is likely to see a number of significant changes in 2017. In addition to three anticipated Supreme Court of Canada decisions on the duty to consult, 2017 will likely bring legislative and policy changes to the … Continue Reading

Legal Challenges to Site C Dam by BC First Nations Dismissed by Federal Court of Appeal and BC Court of Appeal

Two separate court challenges of the federal and provincial environmental assessment approvals for the Site C hydropower project in British Columbia have recently been dismissed by the federal and BC appellate courts. The two appellate courts separately upheld earlier decisions of the BC Supreme Court and the Federal Court which had dismissed applications for judicial … Continue Reading

No Duty to Consult in the Legislative Process – Courtoreille v. Canada, 2016 FCA 311

The Federal Court of Appeal recently released a significant decision that limits the scope of Crown conduct that may trigger itsduty to consult with Aboriginal peoples and reinforces parliamentary privilege. In Courtoreille v. Canada, released on December 7, 2016, the Federal Court of Appeal concluded that the entire legislative process – from the discussion of … Continue Reading

Northern Superior Appeals Dismissal of Aboriginal Consultation Claim Against Ontario

Northern Superior Resources Inc., a Sudbury-based junior mining company, is not giving up on its $110-million lawsuit against the provincial government. It has recently asked Ontario’s highest court to reverse the dismissal of its claim, which seeks damages from the Crown for allegedly failing to properly discharge its duty to consult. What is noteworthy about … Continue Reading

And So it Begins – Federal Government Launches Review of Environmental and Regulatory Processes

On June 20, 2016, the Federal Government launched a comprehensive review of four key environmental and regulatory processes, namely: The federal environmental assessment processes under the Canadian Environmental Assessment Act, 2012 (CEAA 2012); The National Energy Board (NEB); The Fisheries Act; and The Navigation Protection Act.… Continue Reading

Métis and Non-Status Indians no longer in a “jurisdictional wasteland”, SCC confirms

On April 14, 2016, the Supreme Court of Canada (SCC) released its decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 (Daniels), confirming that both Métis and non-status Indians (referred to herein as MNSI) are “Indians” within the meaning of section 91(24) of the Constitution Act, 1867 and therefore under the … Continue Reading

Canada announces unqualified support for UNDRIP – suggests Canada’s existing constitutional obligations serve to fulfil the principles of “free, prior and informed consent”

This post was updated on May 26th, 2016. On May 10, 2016, the federal Minister of Indigenous and Northern Affairs, Hon. Carolyn Bennett, announced Canada’s latest position statement on the United Nation Declaration on the Rights of Indigenous Peoples (the Declaration). The announcement came on the second day of the United Nations Permanent Forum on … Continue Reading

The United Nations Declaration on the Rights of Indigenous Peoples and Free, Prior and Informed Consent – Where does Canada go from here?

This article appears in McCarthy Tétrault’s March 2016 publication, Mining in the Courts, Year in Review, volume VI. The full publication is available online. In 2015, Canada’s new federal government committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples (Declaration). This has generated significant attention in the mining and natural resource … Continue Reading

The Crown’s duty to consult and accommodate – 3 upcoming cases at the SCC to watch

Earlier this month, the Supreme Court of Canada (SCC) granted leave to appeal in three cases that concern important aspects of the Crown’s duty to consult and accommodate Aboriginal peoples. A summary of each decision under appeal is provided below. Follow our ERA blog for further updates as we track these cases at the SCC.… Continue Reading
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