Treaty Rights Remain An Afterthought In Canada’s Law-Making Process

Expect more court battles as long as the Crown has no duty to consult with Indigenous groups before passing laws.

Steve Courtoreille, Chief of the Mikisew Cree First Nation, at Parliament Hill after speaking about legal...
Steve Courtoreille, Chief of the Mikisew Cree First Nation, at Parliament Hill after speaking about legal action against the federal government in Ottawa on Jan. 8, 2013. THE CANADIAN PRESS/ADRIAN WYLD

In October of 2018, the Supreme Court of Canada ruled on a contentious case involving the Mikisew Cree. This dispute stemmed from the Harper government’s introduction of two omnibus bills dating back to 2012. These bills proposed changes to Canada’s environmental protection and regulatory processes, which the Mikisew challenged for violation of a treaty they signed with the Crown back in the late 1800s. The Canadian Constitution legally recognizes and affirms these treaties reached between the Crown and Indigenous groups.

The Indigenous group asserted that if these bills passed, the environment rollback provisions contained within them would harm the environment (such as by permitting mining companies to build structures without government approval). The Mikisew’s position was that this violated their constitutionally protected treaty rights to hunt, fish and trap on their territory. They argued that the Crown had a duty to consult them on the development of such legislation as it impacted their treaty rights.

The group successfully pleaded its case in the federal court, but eventually lost on appeal at the Supreme Court of Canada, where the justices decided 7-2 against them. The majority of the court concluded that the duty to consult in fact did not extend to the law-making process. In reaching this conclusion, however, the court was surprisingly divided.

The underlying purpose of the duty to consult is to facilitate reconciliation between the Crown and Indigenous interests.

Even though the Supreme Court refused to broaden the scope of the duty to consult in the present case, questions surrounding this issue seem far from settled. MORE

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Canada Supreme Court rejects Ecuador damages appeal against Chevron


Indigenous villagers from Ecuador want a Canadian subsidiary of US energy giant Chevron to pay for pollution of native lands in the Amazon between 1964 and 1992

Canada’s Supreme Court on Thursday declined to hear an appeal from a group of Ecuadoran villagers seeking compensation from the Canadian subsidiary of US energy giant Chevron over oil pollution in the Amazon jungle.

The indigenous villagers from central Ecuador want the company to pay for pollution of native lands between 1964 and 1992 by Texaco, a US oil subsidiary the firm bought in 2001.

The decision, for which the court did not offer a reason, puts an end to the group’s attempt to sue Chevron Canada Limited for $9.5 billion in compensation.

The original ruling dates back to 2011 and was twice upheld on appeal in Ecuador. But, as the company has no assets in Ecuador, the plaintiffs turned to courts in several other countries — including the US, Canada, Brazil and Argentina — to try and enforce the ruling.

An Ontario appeals court had previously ruled in 2017 that the firm’s Canadian subsidiary was a legally distinct from its US parent company and its assets could not be seized.

The Supreme Court’s decision also comes after an appeals court in The Hague cancelled a September ruling in Ecuador that Chevron pay $9.5 billion in damages. MORE

 

 

Tsilhqot’in gather sacred water from Teztan Biny for Vancouver World Water Day event

The Nation is asking supporters to gather outside the BC Court of Appeal for the ceremony on Friday, March 22

Fresh sacred water collected from Teztan Biny (Fish Lake) will be used at a gathering outside the B.C. Court of Appeal in Vancouver on World Water Day, March 22 to protest an exploratory drilling permit.

The Tsilhqot’in Nation is applying to the Supreme Court of Canada to halt drilling near the lake for Taseko Mine Ltd.’s proposed New Prosperity Mine 185 kilometres southwest of Williams Lake.

On March 1, the Tsilhqot’in Nations’ appeal in the BC Court of Appeal was dismissed.

To augment the March 22 court date, Xeni Gwet’in Chief Jimmy Lulua said the Nation is asking supporters to gather outside the court house at 8:30 a.m. where there will be a special gathering with drumming and songs. MORE

SOVEREIGNTY: DO FIRST NATIONS NEED IT?

Image result for two-row wampumIn our canoe we have all our laws, culture, and beliefs and in your vessel you shall have all your laws, culture, and beliefs, traveling side by side through life as equals never enforcing or interfering in each others affairs as long as the sun shall shine the grass shall grow and the rivers shall flow this will be everlasting.

…It is beyond dispute that at the time of contact Indigenous Nations were politically independent and governing themselves under there own laws. When sovereignty’s synonyms are considered, words such as jurisdiction, power, authority and control are found. I would argue that, since the Supreme Court of Canada has required a First Nation claiming Title to show ‘exclusive possession” which is jurisdiction and control, then that First Nation would also prove their Sovereignty.

Finally, International Law requires that Nation States must not interfere with the internal affairs of other Nation States. To do so would be a violation of recognized sovereignty.

The concept of sovereign non-interference is not exclusive to modern International Law. This concept has been foundational to the initial relationship between European newcomers and Indigenous Nations. Treaties were forged on this concept, most notably the Two-Row Wampum covenant that makes clear the principle of non-interference and mutual respect are the foundation of every Treaty. The principle of ‘non-interference’ is a necessary component of the International legal understanding of Sovereignty.

Why Exert Sovereignty?

The need to exert sovereignty by Indigenous Nations flows from the Colonizer’s assertion that the Crown became sovereign over all the lands and peoples living upon Turtle Island at “Discovery”. The Doctrine of Discovery and the concept of terra nullius meaning – ’empty land’ are the legal foundations upon which European Crowns made pompous claims of sovereignty over Indigenous lands and populations. The Courts have used these doctrines and principles and upheld them to find in favour of the Settler State. MORE

Canada: Trans Mountain Decision: Application Of Existing Principles Or Evolving Standard?

Expectation  that courts will continue to place an increasing emphasis on the meaningfulness of consultation

two person writing on paper on brown wooden tableNik MacMillan@nikarthur /unsplash

In 2004, the Supreme Court of Canada recognized that there is a duty to consult Indigenous groups whenever the Crown is contemplating conduct that could adversely impact asserted or established Aboriginal or treaty rights. Since this time, there have been hundreds of court cases in which Indigenous groups have gone to court to challenge the adequacy of consultation and/or accommodation for certain Crown decisions, particularly in the context of resource development. This has been a challenging area for proponents, with many feeling that the standard to be met is a continually moving goal post.

In 2018, the most widely discussed duty to consult case was the Federal Court of Appeal’s (FCA) decision to quash the Trans Mountain Expansion Project (TMX Project) based, in part, on inadequate consultation with Indigenous groups. While some feel that the Court simply applied existing duty to consult jurisprudence, a closer examination arguably reveals that the FCA applied a stricter standard on certain issues, including accommodation, the standard of review, and the adequacy of written reasons. While it remains to be seen whether other courts will take a similar approach to these issues in the future, the decision highlights the challenges that proponents can face with an evolving standard and some measures that should be taken to minimize risk going forward.

Background on the TMX Project and the FCA Decision

The TMX Project is a proposed twinning of an existing pipeline from Edmonton, Alberta to Burnaby, B.C. designed to bring more of Alberta’s oil to tidewater for export to Asian markets. The project involves the construction of 987 kilometres of new pipeline segments and associated facilities, with approximately 89% of the pipeline route running parallel to existing disturbances. The operation of the proposed expanded pipeline system would increase overall capacity from 300,000 barrels a day to 890,000 barrels a day. It is also projected to increase the number of tankers at the Westridge Marine Terminal in Burnaby from approximately five per month to 34 per month. The tanker traffic would be within an established shipping route with significant vessel traffic. MORE

Saskatchewan, Ottawa carbon tax case ‘monumental’ for Constitution: expert

REGINA — Legal experts, government officials and industry leaders will all watch this week as Saskatchewan and Ottawa head to court over the constitutionality of a federally imposed carbon tax.

The federal government is set to impose a carbon levy on provinces that do not have one of their own starting in April.

Ottawa’s price on pollution starts at a minimum of $20 a tonne and rises $10 annually until 2022.

The Saskatchewan Party government has always been opposed to the idea. The province says the tax would hurt the economy and feels its own plan for emissions reductions is sufficient. SOURCE

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Supreme Court rules energy companies cannot abandon old wells

Supreme Court of Canada has overturned Redwater Energy lower court decision

An orphan well site near Carstairs, Alta., awaiting proper abandonment and reclamation. (Government of Alberta)

The Supreme Court of Canada has ruled that energy companies cannot abandon their responsibility to clean up old oil and natural gas wells in the case of bankruptcy.

The court ruled 5-2 to overturn the earlier ruling. In doing that, it said that bankruptcy is not a license to ignore environmental regulations.

The Redwater case has been watched closely across the country. Ontario, British Columbia and Saskatchewan all intervened in the case, supporting the Alberta Energy Regulator’s position that the polluter must pay for clean-up before creditors are paid back their loans.

Alberta has been dealing with a tsunami of orphaned oil and gas wells in the past five years. In 2014, the Orphan Well Association listed fewer than 200 wells to be reclaimed. The most recent numbers show there are 3,127 wells that need to be plugged or abandoned, and a further 1,553 sites that have been abandoned but still need to be reclaimed. MORE

 

Bankrupt energy companies await key Supreme Court ruling on old oil wells

The decision could have implications for banks, apart from junior and intermediate oil producers’ access to capital

Image result for abandoned oil wells alberta
Pumpjacks, like this one near Calgary, are used to pump crude oil out of the ground after a well has been drilled. Thousands of oil wells have been abandoned across Alberta without proper remediation. (Todd Korol/Reuters)

Trustees for bankrupt energy companies will learn Thursday whether they can refuse to pay clean up costs for old and inactive oil and gas wells in Alberta.

The Supreme Court of Canada is set to rule on whether the trustee for bankrupt Redwater Energy Corp. can hand over the remediation responsibilities for old and inactive oil and gas wells to Alberta’s Orphan Well Association — while still keeping its more valuable wells and facilities, which can be sold to repay the company’s debt.

The case has been closely watched in the Calgary oilpatch and will have major implications across the country’s resource sectors as the Supreme Court will determine whether debt holders have a higher priority over environmental clean-up responsibilities in bankruptcy cases. MORE

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Can Slave Labour Charges Against Canadian Company Be Heard in Court in Canada? Supreme Court of Canada Hears Arguments Today

Protest at Nevsun Mining AGM 2017

Today, the Supreme Court of Canada is hearing an appeal by Nevsun Resources Limited (TSX: NSU/NYSE MKT: NSU) of lower court rulings that accusations against it regarding the use of forced labour at its Bisha mine in Eritrea should be heard in British Columbia, not Eritrea. MiningWatch Canada is not directly involved in the lawsuit itself, but we are intervening in the Supreme Court appeal because we are deeply concerned that the victims of abuse in connection with Canadian mining operations internationally should be able to seek justice in Canada.

The Court of Appeal for British Columbia upheld the ruling by the Supreme Court of British Columbia rejecting efforts by Vancouver-based Nevsun to dismiss a lawsuit brought by three Eritrean men who allege they were forced to work at the company’s Bisha mine in that country. Nevsun was granted leave to appeal that judgment to the Supreme Court of Canada. In addition to the plaintiffs in the case, a number of groups will be intervening along with MiningWatch: Amnesty International Canada, together with the International Commission of Jurists; the Mining Association of CanadaEarthRights International and the Global Justice Clinic at New York University School of Law; and the International Human Rights Program at the University of Toronto Faculty of Law. The factums for the appeal are available on the Supreme Court’s case information page. MORE

Pipeline spat pitting hereditary leaders against elected band councils reveals intricacies of B.C. Indigenous governance

This situation is sort of a uniquely B.C. problem. Because the First Nations there don’t have treaties title over traditional lands hasn’t been dealt with

Elected chiefs are elected under processes established either through the Indian Act, the First Nations Elections Act, band custom or, in the case of self-governing First Nations, under the band’s constitution, explains The Canadian Encyclopedia. James Dempsey, a Native Studies professor at the University of Alberta, said in many places, a chief and council has simply become the accepted form of government.

“But you also have others that are trying to, to whatever degree they can, re-institute the traditional way of government and sometimes it comes into conflict with the chief and council,” he said.

From the time of birth the child would be groomed or tutored to be a wise, strong and responsible leader

Hereditary chiefs are just that, hereditary — a traditional form of government.

“Before non-native contact, a Wet’suwet’en heir began their journey to becoming a hereditary chief while still inside the mother’s womb,” says the Wet’suwet’en website. “Elders, Shaman’s and Chiefs would often feel the womb of an expectant mother and determine if the baby was destined to be a future Chief or Shaman. From the time of birth the child would be groomed or tutored to be a wise, strong and responsible leader.” MORE