Aboriginal Law @ Gowlings, February 17, 2012 - Newsflash

ABORIGINAL LAW 2011 A YEAR IN REVIEW

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...