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Ross River Dena Council v. Government of Yukon

Ross River logo In Ross River Dena Council v. Government of Yukon, the Ross River Dena Council (RRDC) sought a declaration that the Government of Yukon had a duty to consult prior to recording the grant of quartz mineral claims within the traditional territory of the First Nation. The Quartz Mining Act of Yukon, in common with other so-called "free entry mining regimes," characterized by the ability of the miner to locate or stake a claim on any open lands that are not already subject to a claim by another miner. Recording a claim under the Act immediately confers on the claim holder the ability to carry out exploration activities without obtaining any additional permits or approvals and without providing any notice to the Crown or First Nations.

The lower court had held that the recording of a claim met the three-part test set out by the Supreme Court of Canada to determine whether the Crown's duty to consult is triggered: (i) the Crown had knowledge of RRDC's asserted aboriginal claims; (ii) there was contemplated Crown conduct in the form of the recording of a mineral claim; and (iii) there was a potential that the Crown's conduct may adversely affect RRDC's claims.

While the Court of Appeal agreed with the lower court on most points, it went further by finding that the granting of the mineral claim by itself potentially impacts aboriginal title. It is a significant conclusion that the registration of a mining claim, by itself, can impact a potential claim of Aboriginal title.

As a result, this decision may have much broader implications for mining dispositions in other Canadian jurisdictions. This principle could pose serious challenges to existing mineral tenure regimes under most mining statutes in Canada. While acknowledging the importance of free entry, the Court of Appeal found that constitutional duties owed to First Nations must nevertheless be fulfilled.

View December 27, 2012 Yukon Court of Appeal decision (PDF)
View January 2013 Robin M. Junger and Brittnee Russell, McMillan LLP article
View January 28, 2013 Sam Adkins and Thomas F. Isaac, McCarthy Tétrault LLP, article
View January 23, 2013 Sam Adkins and Thomas F. Isaac, McCarthy Tétrault LLP article
View January 15, 2013 University of Alberta, ABLawg article

Daniels v. Canada

Harry Daniels On January 8, 2013, Justice Phelan of the Federal Court issued a decision declaring that: "Métis and non-status Indians are 'Indians' within the meaning of the expression 'Indians and lands reserved for Indians' in s 91(24) of the Constitution Act, 1867." The decision confirmed a previous 1939 Supreme Court of Canada decision, Re Eskimo Reference, which made essentially the same finding regarding the Inuit.

It is important to keep in mind that the Daniels decision is only about s. 91(24), i.e. it is about the scope of federal powers. It is not about other laws. So, it does not say anything about things like who has status under the Indian Act, or who has aboriginal or treaty rights under s. 35 of the Constitution Act, 1982.

The court also did not grant the requested declaration on the federal government's fiduciary duty, though it clearly states that one would likely flow from this decision, and implies that the same would be true of the declaration sought regarding the duty to consult when cases are brought on those subjects specifically.

The case was initially launched by the late Harry Daniels, a long-time champion of Métis rights and President of the Congress of Aboriginal Peoples from 1975 to 1981 and again between 1997 and 2000. Sadly Daniels, who passed away in 2004, was unable to witness this verdict, which has significance for more than a half million aboriginal people in Canada.

View January 29, 2013 Osgoode Hall Law School: The Court blog post
View January 18, 2013 coverage
View January 8, 2013 Federal Court of Canada decision, Daniels v. Canada
View January 8, 2013 Ontario Congress of Aboriginal Peoples press release
View April 5, 1939 Supreme Court of Canada, Re Eskimo Reference
View Métis National Council - Biography of Harry Daniels

KI Conflict Continues Despite Land Withdrawal

Kitchenuhmaykoosib Inninuwug logo The province of Ontario has removed 23,000 square kilometres of land near Kitchenuhmaykoosib Inninuwug (KI) First Nation from future mining claims.

The new restrictions, however, do not affect the God's Lake Resources Sherman Lake Gold Project located about 400 kilometres north of Red Lake Ontario. The gold mining company wants to drill in an area where the First Nation says its ancestors are buried. The company is expected to begin their prospecting this month and have hired a security firm to protect its workers when entering KI territory.

KI leaders were in Toronto March 6, 2012 to rally outside the Prospectors and Developers Association of Canada (PDAC) convention - the largest mining industry event of its type in the world.

KI Chief Donny Morris travelled to the Sherman Lake site March 7, 2012 to guard against trespass by mining exploration company Gods Lake Resources (GLR).

"I cannot allow our graves to be desecrated by a company that is hiring guns to block us on our own land. That is no way to do business," said KI Chief Donny Morris

Seven years ago KI was in a similar situation with Toronto-based mining company Platinex. During that struggle, six KI leaders were jailed for six months after protesting Platinex.

In 2009 the company withdrew its plans after it reached an agreement with the Ontario government to receive $5 million and a royalty stake in any future developments in the region.

View March 7, 2012 KI press release
View March 7, 2012 article
View March 6, 2012 APTN article
View March 5, 2012 CBC article
View March 9, 2012 The First Perspective article
Sources: APTN, CBC

Wahgoshig Win Injunction

feathers A northeastern Ontario First Nation, Wahgoshig First Nation, has won an injunction to temporarily prevent junior mining company Solid Gold Resources from drilling on their traditional lands.

In a January 3, 2012 Ontario Superior Court decision, Justice Carole Brown ordered Solid Gold Resources to stop drilling for 120 days while the company and the Ontario government pay for a third party mediator to begin a consultation process with Wahgoshig First Nation.

Brown found that the company made a "willful effort not to consult" with the community despite provincial requests since 2009. The provincial government even offered to "facilitate the process" for Solid Gold.

Wahgoshig hunters came across the company's drilling crew in the spring of 2011, and the workers refused to reveal the name of their employer. The area in which Solid Gold Resources was drilling contains ancient burial grounds and many sacred sites. Wahgoshig band officials managed to find out Solid Gold was the company behind the drilling. They attempted to initiate contact with Solid Gold, but receiving no response they applied for the injunction.

"We are very pleased with this decision. We feel that justice has been done," said Wahgoshig Chief David Babin.

View January 3, 2012 Superior Court of Ontario Decision
View January 4, 2012 Olthuis, Kleer, Townshend (OKT) LLP blog post
View January 4, 2012 Mining Watch Canada article
View January 4, 2012 Aboriginal Peoples Television Network (APTN) article
View January 5, 2012 Winnipeg Free Press article
View January 6, 2012 Northern Ontario Business article

Ring of Fire First Nations
Seek Shared Decisions and Benefits

Ontario logo The Ontario Throne Speech, following the recent Ontario election, was delivered November 22, 2011. The speech set the agenda for Dalton McGuinty's third term as Premier.

The speech referenced the “untapped potential of the Ring of Fire” — an area of muskeg swamps, lakes, and forests in the James Bay Lowlands. Several mining operations are being proposed and mineral exploration is underway in the Ring of Fire. But the throne speech did not mention affected First Nation communities, who are grappling with incomplete consultations, accommodation and environmental assessment of mining in their territories.

“The provincial government has been clear — they view the development of the Ring of Fire area as a key economic driver for years to come. The First Nations in the Ring of Fire area have been equally clear that they expect to be directly involved in the development from beginning to end. It is important to understand that the mineral deposits are located on their traditional lands and they want their communities to benefit economically from this development and to make every effort to ensure the protection of the environment for existing and future generations,” said Ontario Regional Chief Angus Toulouse.

Sudbury Member of Provincial Parliament (MPP) Rick Bartolucci was named Minister of Northern Development and Mines October 20, 2011. He faces the task of bringing into force amendments made to Ontario’s Mining Act in 2009. The amendments include a clause so First Nation communities can withdraw land from development by showing it is a site of cultural or spiritual significance, although criteria for showing either have not been outlined.

The Minister’s task to make the amendments work will be complicated by recent happenings:

  • A landmark August 16, 2011 Ontario’s Superior Court decision granted Grassy Narrows First Nations the right to reject development activities on their territory;
  • Kitchenuhmaykoosib Inninuwug (KI) objected to mining operations on its traditional lands earlier in October 2011;
  • Matawa First Nation announced their decision to withdraw support for development in the Ring of Fire area of Northern Ontario.

Webequie First Nation, a member of Matawa Tribal Council and the closest community to the potential mineral developments in the Ring of Fire, released a Community Position Paper November 23, 2011 to reaffirm its community rights and local autonomy.

"The purpose of publicly releasing these documents is to help guide industry, government and any other commercial interests through the process of doing business or working collaboratively with our First Nation. We want to demonstrate that there are meaningful paths forward to building positive and mutually beneficial working relationships. We believe that education and awareness are the best way to build understanding and reciprocal respect," said Webequie First Nation Chief Cornelius Wabasse.

View November 23, 2011 Webequie First Nation press release
View November 23, 2011 Chiefs of Ontario press release
View November 23, 2011 Thunder Bay News Watch coverage
View November 18, 2011 Wawatay News coverage
View October 27, 2011 MiningWatch Canada release
View November 24, 2011 Wawatay News article
View October 26, 2011 Chiefs of Ontario press release
View more information on Manitoba Wildlands Aboriginal Court Cases & Consultations page
View Manitoba Wildlands “Grassy Narrows Case Summary”

Grassy Narrows Case:
Keewatin v. Minister of Natural Resources

Grassy Narrows blockade In a landmark August 16, 2011 decision, Ontario's Superior Court ruled that the province cannot authorize timber and logging if the operations infringe on federal treaty promises protecting aboriginal rights to traditional hunting and trapping.

The court action was initially launched in spring 2000. The community has been fighting for recognition and protection of its treaty rights for more than a decade, including a blockade at Slant Lake in 2002 to block access to the Whiskey Jack forest.

Justice Sanderson of the Superior Court of Justice granted Grassy Narrows First Nation a declaration that the Ontario Ministry of Natural Resources (MNR) had no authority to approve any forest licences, forest management plans, work schedules or make or give any other approvals or authorizations for forest operation, within the Keewatin Lands. (That may infringe, violate, impair, abrogate, or derogate from, the right to hunt and fish guaranteed to the band by Treaty 3.) The Keewatin Lands have a special legal status because they only became part of Ontario in 1912. According to Justice Anderson, they are therefore exempt from special legislation passed by Canada and Ontario in 1891, which apply to the rest of the province.

The decision will have an important impact on all forms of resource extraction in the Keewatin Lands, making it more risky to proceed with provincial approval of development projects without First Nations knowledge, consent and support.

The decision is likely to be appealed.

downloadDownload August 16, 2011 Keewatin v. Minister of Natural Resources Ontario Superior Court decision (PDF)
View August 2011, Miller Thompson LLP, Keewatin v. Minister of Natural Resources 2011 ONSC 4801 - Case Summary
View August 25, 2011 Fasken Martineau, Keewatin Decision Potentially Invalidates Ontario Licences and Leases Granted Within Treaty Lands
View August 25, 2011 Environmental Law and Litigation, Grassy Narrows victory and renewable energy

Mining Déjà Vu for KI First Nation

Kitchenuhmaykoosib Inninuwug logo The people of Kitchenuhmaykoosib Inninuwug (KI) First Nation Ontario are experiencing déjà vu, after a dispute over mineral exploration by God's Lake Resources (GLR) on KI's traditional lands. KI claims there may be sacred burial sites located on GLR's mineral exploration site.

The dispute risks a repeat of the 2008 imprisonment of KI Chief Donny Morris and five other Council members, who were imprisoned for protesting mineral development and exploration on their traditional lands by Platinex Inc. After several court cases, and considerable public pressure, Platinex surrendered its mining claims to the Ontario Government in exchange for $5 million and future royalty rights. Council members were released from jail early.

"God's Lake recklessly and deliberately ignored our advice and entered the land," said KI Chief Donny Morris.

In a July 5, 2011 community referendum KI members voted 96% in favour of a landmark declaration that opposes harmful industrial activity on KI's lands, The KI Water Declaration and Protocols.

"The goal is for KI to be able to determine what types of activities take place on traditional lands. The process will take the amount of time it will take. Until then we expect the government and companies to respect the process we're trying to put in place," said KI spokesperson John Cutfeet.

KI issued a letter to Ontario Premier Dalton McGuinty, and an eviction notice to GLR at the end of September 2011.

KI has asked the Ontario Government to suspend the project, apologize to the community, agree that no further work will be undertaken, and honour a 2008 promise by the McGuinty government to create a joint review panel to address consultation protocols in the region before issues get to the point of direct action.

GLR has said it will ignore the eviction notice issued by KI, claiming requests to identify cultural sites have not been answered by KI, but agrees better consultation standards are required.

"We recognize that KI and GLR may have one goal in common: Ontario First Nations and all claimholders in Ontario need to have guidelines that help us to interact respectfully," said Edward Ludwig, GLR President & CEO.

Ontario Ministry of Northern Development, Mines and Forestry (OMNR) says the government is committed to working with both sides to resolve the issue. But a September 28th, 2011 OMNR letter to Chief Morris states that GLR is "entitled to access those properties under Ontario's Mining Act," and to OMNR's knowledge GLR has not engaged in any activities "likely to disturb any spiritually or culturally significant sites."

KI has received statements of support from the Matawa First Nations Chiefs, a Tribal Council of nine Northern Ontario First Nations located in Nishnawbe Aski Nation (NAN).

KI First Nation is located 440 km north of Sioux Lookout, Ontario, with a population of 1,429 people.

View October 13th, 2011 Wawatay News article
View October 11th, 2011 Net News Ledger article
View Kitchenuhmaykoosib Inninuwug (KI), Land & Environment Unit web page
View KI Letters to Government and Press Releases
View October 11th, 2011 First Perspective article
View October 3, 2011 God's Lake Resources press release
View previous Manitoba Wildlands news news items:
Sources: Wawatay News, KI website, Government of Ontario, God's Lake Resources

First Nations Demand Hydro Review

Manitoba Hydro logo Manitoba First Nations have taken their plea for an independent review of Manitoba Hydro's impact on flooding all the way to the United Nations.

Glenn Hudson, chief of flood-ravaged Peguis First Nation, and Southern Chiefs Organization Grand Chief Morris Shannacappo argue recent flooding is the result of artificially high water levels created on Lake Manitoba and several rivers due to Manitoba Hydro's regulation of lake levels for use as hydro-reservoirs.

They were in New York City in May 2011 at the United Nations 10th Session of the Permanent Forum on Indigenous Issues. They met with UN aboriginal and legal bodies to seek funding for impact studies on damage caused by artificially increasing lake levels. Shannacappo addressed the general assembly calling for an environmental audit into Manitoba Hydro practices.

"All they're thinking about is their money-making machine in Manitoba Hydro," said Shannacappo.

Flooding in 2011 has forced approximately 1,400 people from their homes on southern First Nations such as Peguis, Lake St. Martin and Dauphin River. Peguis has experienced four floods since 2009. In 2011 nearly 900 people were evacuated from the community, and nearing end of May 2011, more than half had still not returned home.

"We want to force this issue, because we're seeing the impacts of Hydro's practices," Hudson said.

View May 21, 2011 Intertribal Times article
View May 20, 2011 Winnipeg Free Press article
View May 19, 2011 Winnipeg Sun article
View Southern Chiefs Organization
View Peguis First Nation
View United Nations 10th Session of the Permanent Forum on Indigenous Issues
Source: Winnipeg Sun, Winnipeg Free Press

Worst Alberta Oil Spill Since '75

broken pipeline 28,000 barrels of oil spilled Friday April 29th from a 45-year-old pipeline owned by Plains Midstream Canada Rainbow pipeline, located in the Peace River region of Alberta, near the Lubicon Cree Nation community of Little Buffalo. Regulators did not report the spill, the largest in Albertan history since 1975, until after the May 2nd, 2011 Canadian election.

"The company and the Alberta Energy Resources Conservation Board have given us little information. What we do know is that the health of our community is at stake," said Lubicon Chief Steve Nosky. In the wake of the disaster First Nations across Canada have expressed their solidarity with the people of Little Buffalo.

"We need immediate action and we are also calling for an independent investigation into this incident. We have a responsibility to protect Mother Earth and the traditional hunting and trapping territories of First Nations. This is a clear demonstration as to why we need plans in place to deal with future disasters," said Assembly of First Nations National Chief Shawn A-in-chut Atleo.

Dene National Chief Bill Erasmus stated: "The Dene have always been fearful of a possible break in a pipeline such as this. Therefore the Dene Nation will support the Lubicon Cree Nation and will continue to follow and monitor this environmental catastrophe."

"What this demonstrates is that oil pipelines will break and leak. Clearly this will add to the immense opposition from northern BC residents who agree that the risks of Enbridge's Northern Gateway Pipeline project are not worth sacrificing the environment or local communities," stated Carrier Sekani Tribal Council Chief David Luggi.

View May 7, 2011, May 6, 2011, May 6, 2011, May 5, 2011 Indigenous Peoples Issues & Resources articles
Watch May 5, 2011 APTN video video
View May 4, 200 United Press International article
Source: Indigenous Peoples Issues & Resources

CIBC Urged to Respect Indigenous Rights

CIBC logo First Nations youth leader Jasmine Thomas, who represents the five First Nations of the Yinka Dene Alliance in British Columbia, attended the Canadian Imperial Bank of Commerce (CIBC) annual general meeting (AGM) in Winnipeg to warn shareholders and executives: Do not finance Enbridge or its Northern Gateway Pipeline project, since Enbridge fails to respect the authority of First Nations along the proposed pipeline route.

"We would like CIBC to adopt a policy that would require the bank to consider whether its clients have obtained the free, prior and informed consent of affected indigenous peoples," Thomas told the AGM, adding, "CIBC should catch up with Royal Bank and TD Bank, which have already committed to recognize our right to consent."

The 1,170 km (727 mile) pipeline would carry crude oil across more than 1,000 streams and rivers, mountain ranges, avalanche-prone terrain and rainforest ecosystems before being loaded onto at least 150 tankers annually.

More than 150 First Nations, the Union of B.C. Municipalities, numerous businesses, environmental organizations and prominent Canadians oppose the Enbridge pipeline.

"CIBC needs to behave ethically and stop raising money for Enbridge, which intends to bring destructive tar sands pipelines through our lands even though we have said 'no'. Their pipeline would violate our human rights and harm my people," said Thomas.

The President and CEO of Enbridge, Patrick D. Daniel, also sits on the CIBC board of directors.

downloadDownload April 28, 2011 Yinka Dene Alliance hand-out (PDF)
View April 28, 2011 Yinka Dene Alliance press release
View April 28, 2011 Canadian Press article
View April 29, 2011 Winnipeg Free Press article
View March 31, 2010 Manitoba Wildlands news item
Source: Yinka Dene Alliance

Federal Court Quashes NWT Mining Permit

inside mine In a November 12, 2010 decision Canada's Federal Court quashed a mining company's permit to explore on the traditional lands of two Northwest Territories First Nations. The court concluded the First nations had not been properly consulted.

Two Akaitcho First Nations have concerns that the Vancouver-based company's bid to drill for lithium at its Phoenix site near Aylmer Lake, about 340 kilometres northeast of Yellowknife, could disturb their ancestral burial grounds.

The Mackenzie Valley Land and Water Board issued the land-use permit to North Arrow on July 16, 2009, but First Nation officials said they had not been consulted before the permit was awarded.

"There were no face-to-face meetings with chiefs on issues; no real meetings with the communities and no attempt to address any of the communities' or leaders' ideas into North Arrow's proposal. North Arrow simply refused to negotiate," stated Justice Michael L. Phelan in his decision.

"INAC [Indian and Northern Affairs Canada] did nothing more than accept North Arrow's assurances and advise the Board that consultation had occurred. There was no independent inquiry by either body much less an "opportunity to be heard" for the [First Nation] Applicants. These actions (or lack thereof) were contrary to the Board's obligations and to the principles of fairness," added Phelan.

"This decision sends a clear message to companies who want to operate in Akaitcho Dene territory. This is our land. We are open to working with industry, but companies need to respect us, respect our rights, and respect what we have to say. We have to ensure that our treaty rights and our land and environment are protected," explained Yellowknives Dene Chief Edward Sangris.

View November 12, 2010 Canadian Federal Court Decision
View November 16, 2010 CBC News article
View November 17, 2010 article
View November 18, 2010 Mining News article
View November 23, 2010 Canadian Mining Journal press release
Source: Dene v. Canada, CBC News

Inuit Win Injunction Against Seismic Testing

gavelMadame Justice Sue Cooper, of the Nunavut Court of Justice, granted a temporary injunction August 8th, 2010, preventing the start of a seismic testing project in ocean waters off north Baffin Island.

Residents from five communities — Resolute Bay, Arctic Bay, Grise Fiord, Clyde River and Pond Inlet — are largely opposed to the plan to send sound blasts through the water, saying the sound could adversely affect whales, polar bears and other marine life, and change migration patterns.

The Nunavut government and the federal government argued against the injunction, citing a consultant's report stating the testing would have little or no impact on marine mammals.

But Judge Cooper noted "some aspects of the report ... cause concern." She said the fact the report contains protocols to mitigate the impact of seismic activity on marine wildlife supports the conclusion that there are impacts.

"I am satisfied that Inuit in the five affected communities will suffer irreparable harm if an injunction is not granted," Judge Cooper ruled in granting the injunction.

The group that sought the injunction, the Qikiqtani Inuit Association, stated it welcomed the ruling, however it was unfortunate the Inuit needed to go to court to have their voices heard. The group had maintained that public hearings in May and June did not amount to the "meaningful consultations" required.

"I look forward to the day when the advice of Inuit and their representative organizations is sought prior to seeking project approval," said Okalik Eegeesiak of the Qikiqtani Inuit Association.

View Justice Sue Cooper's Decision (PDF)
View August 8, 2010 Nunatsiaq News article
View August 8, 2010 CBC News article
View August 8, 2010 Vancouver Sun article
View August 8, 2010 Brandon Sun article

Source: Nunatsiaq News, CBC News

Harvard Report Says BC Mining Laws Need Reform

Harvard logo A June 2010 study released by Harvard Law School's International Human Rights Clinic (IHRC) concludes that British Columbia's mining laws are unfair, unconstitutional, and in need of urgent reform.

"First Nations suffer the consequences of a regime that favors mining over the environment and indigenous culture," said Bonnie Docherty, lead author, lecturer and clinical instructor at IHRC.

The report makes a series of recommendations concerning appropriate consultations and planning for aboriginal rights and mining.

"First nations have to be involved in planning and selecting places that are acceptable for development. Right now, miners can go wherever they want." Said Anne Marie Sam, chair of First Nations Women Advocating Responsible Mining.

Researchers specifically examined how B.C.'s Mineral Tenure Act is affecting the Takla Lake First Nation, which has about one-third of its traditional territories subject to mineral claims.

The study is especially critical of B.C.'s online system that allows miners anywhere in the world to register claims on First Nation territory at the click of a button, without consulting aboriginal communities. Since online staking began in 2005, stakes have increased fivefold.

"I'm hoping this report will help change the Mineral Tenure Act," said Chief Dolly Abraham of the Takla Lake First Nation, "I have a band member who found a stake has been made right where her home is."

Canada's Assembly of First Nations Chief Shawn Atleo voiced his support for the recommendations, adding the Takla Lake situation is echoed in First Nations communities across the Canada.

downloadDownload June 7, 2010 Harvard press release (PDF)
downloadDownload June 7, 2010 Harvard report (PDF)
View June 7, 2010 Globe and Mail article
View June 8, 2010 Vancouver Sun article
View June 8, 2010 Assembly of First Nations press release
Visit First Nations Women Advocating Responsible Mining webpage
View June 7, 2010 Human Right Change web article
Sources: Harvard, Globe and Mail, Vancouver Sun

Mississaugas Paid for Deceitful Land Purchase

MNC logoA long-standing First Nation land claim over Toronto lands has been settled. Members of the Mississaugas of the New Credit (MNC) voted to accept a $145-million land-claims settlement with Canada, May 2010.

The settlement covers two transfers of land, now parts of Burlington and Toronto. In the Brant Tract purchase of 1797 the MNC sold the Crown 3,450 acres of land located near Burlington Bay on Lake Ontario. According to MNC the Crown paid less for the land in 1797 than had been promised at an earlier date. In the 1805 Toronto Purchase the MCN surrendered most of what is now metropolitan Toronto for a mere 10 shillings (roughly $60).

"Finally, 200 years later, an injustice is about to be corrected," Toronto Mayor David Miller said June 8, 2010 adding, "Canada took more land and paid less than was promised."

"We would like to thank you for your ongoing commitment, dedication, and caring for the tradition land of our people." responded Chief Bryan Laforme adding the settlement will enhance relationships between MCN and Toronto.

The settlement offer was overwhelmingly approved, 856 to 41, by the eighteen hundred MCN community members. Band members will get $20,000 each and $1,500 annually to cover living expenses. For those under 18, money will be held in trust. Money will be set aside for life insurance and post-secondary education; the rest will be placed in trust. The annual interest will be used for economic development projects or community facilities.

The land claim was launched by former chief Maurice LaForme in 1986. It fell to son Bryan LaForme, current Chief, to see the process to its conclusion. Bryan's brother Harry LaForme, a judge on Ontario's Court of Appeal, was legal counsel for the band and played an instrumental role.

View June 08, 2010 CTV news coverage
View June 08, 2010 Toronto Star article
View January 25, 2010 Government of Canada fact sheet, The Brant tract and the Toronto Purchase specific claims
View January 27, 2010 Indigenous Peoples Issues article
Visit Mississaugas of the New Credit website
Source: CTV News


comment tag
Article: Ottawa Buries Environment-law Changes in Budget Bill -
Supreme Court agrees that Crees should be consulted about land use
By Matthew Coon Come, Published by The Gazette, June 8, 2010

"... On May 14, the Supreme Court of Canada ruled that the federal government is obligated to apply the Canadian Environmental Assessment Act to proposed development projects within our traditional territory. In this important court case, the Quebec government had filed an action in court to exclude CEAA from applying to mining projects in the province because it claimed jurisdiction over the development of resources..."

View the full June 8, 2010 The Gazette article

Aboriginal Peoples Key to Boreal Agreement

sun in forestNine environmental groups signed The Canadian Boreal Forest Agreement with twenty-one forestry companies during May 2010. Forestry companies agreed to halt logging for the next two years on an unclear amount of boreal forestry productive lands under license to the companies, while plans for new protected areas and woodland caribou conservation plans are developed.

No provincial governments are involved; governments designate protected lands, license forestry company operations, and implement woodland caribou strategies. The private agreement between the parties is now public (see below). These forest management areas also contain towns, roads, dams, mining, tourism, and other developments. Approximately one third of the license areas are considered productive for forestry operations.

The organizations include: the Canadian Boreal Initiative, Canadian Parks and Wilderness Society, Canopy, the David Suzuki Foundation, ForestEthics, Greenpeace, The Nature Conservancy, Pew Environment Group, International, Boreal Conservation Campaign, Ivey Foundation, and 21 companies - from the Forest Products Association of Canada.

The forest companies agreed to shift from conventional logging practices to ecosystem-based management in their boreal land bases. In return, environmental groups who signed on will suspend "do not buy" campaigns against the participating companies while the agreement is in place. Certain of the forestry companies do not hold license areas in the boreal.

The David Suzuki Foundation issued column to say First Nation participation is essential for the agreement to be viable. Greenpeace Canada, according to media leaks, is debating its participation in the agreement.

Most boreal regions in Canada are also First Nation traditional territory, and in many cases treaty land entitlements, aboriginal rights, and title issues remain unresolved. Throughout the boreal, government is required to consult with and accommodate Aboriginal people prior to development decisions that may affect Aboriginal rights.

Chief Ghislain Picard of the Assembly of First Nations of Quebec and Labrador (AFNQL) commented, "The intentions... must obviously be backed up by a genuine and tangible willingness to involve the First Nations that have rights over these lands."

Grand Chief Stan Beardy of Nishnawbe Aski Nation (NAN), Ontario indicated in his press release: "The right of consent is reflected in the spirit and intent of both Treaty 9 and Treaty 5, this is our right. We must be part of the decision making, benefit from resources in our traditional territory, and be involved in how the land is managed."

Visit Canadian Boreal Forest Agreement website
View May 26, 2010 Suzuki Foundation article
View May 20, 2010 NAN press release
downloadDownload May 20, 2010 AFNQL press release (PDF)
downloadDownload The Canadian Boreal Forest Agreement (PDF)
downloadDownload Map of Areas Effected by the Canadian Boreal Forest Agreement (PDF)
Source: Suzuki Foundation, NAN, AFNQL

Quebec (A.G.) v. Moses

Ted MosesIn Quebec (Attorney General) v. Moses the Supreme Court of Canada ruled that the modern day treaty, created by the 1975 James Bay and Northern Quebec Agreement, did not conflict with federal requirements for an environmental assessment.

The case revolved around a proposed vanadium mine in an area regulated by the Treaty. The Quebec and federal governments disagreed over how many environmental impact assessments were required, as the treaty stated "...a project shall not be submitted to more than one impact assessment."

The tailing pond required for the mine would cause harmful alteration, disruption or destruction of fish habitat, and the federal fisheries department therefore refused to grant a permit.

Under Canada's constitution mining is under provincial jurisdiction, but fisheries and water stays under federal jurisdiction.

The Attorney General of Quebec argued that the federal fisheries Minister had no choice but to grant a permit.

The respondents, led by Dr. Ted Moses (former Grand Chief of the Council of Crees, Chief Cree negotiator of the James Bay Treaty, and current President of the Secretariat to the Cree Nation Abitibi-Témiscamingue Economic Alliance) argued that a federal assessment was not incompatible with the treaty.

The court concluded that there was no conflict between the Treaty and federal laws. Therefore the mine could not proceed without a federal fisheries permit.

View May 14, 2010 Supreme Court judgement
View Dr. Ted Moses biography
View January 1, 2009 Nation article
Sources: Nation News, Supreme Court of Canada

First Nations: Canada Should Embrace UN Declaration

UNPFII logoIndigenous Peoples, human rights and faith based organizations welcomed the announcement that the Canadian government is taking steps to endorse the United Nations Declaration on the Rights of Indigenous Peoples.

The UN Declaration provides a principled framework for partnership and reconciliation between states and Indigenous Peoples. Its provisions provide much needed guidance to governments, state institutions and society as a whole on how human rights laws and obligations can be best understood and applied to the distinct circumstances and urgent needs of 370 million Indigenous People around the world.

There are calls for Canada's government to work in genuine partnership with Indigenous Peoples for unqualified endorsement and full implementation of the Declaration. Groups also highlight that an endorsement must honour the spirit and intent of the Declaration consistent with Indigenous Peoples' human rights.

This statement was signed by Assembly of First Nations; Inuit Circumpolar Council Canada; Inuit Tapiriit Kanatami; Native Women's Association of Canada; Assemblée des Premières Nations du Québec et du Labrador; First Nations Summit; Union of British Columbia Indian Chiefs; Chiefs of Ontario; Grand Council of the Crees (Eeyou Istchee); International Organization of Indigenous Resource Development (IOIRD); Quebec Native Women/Femmes Autochtones du Québec; Samson Cree Nation; Ermineskin Cree Nation; Montana Cree Nation; Louis Bull Cree Nation; Innu Council of Nitassinan; Indigenous World Association; First Peoples Human Rights Coalition; Amnesty International; Canadian Friends Service Committee (Quakers); KAIROS: Canadian Ecumenical Justice Initiatives.

View April 23, 2010 Indigenous Peoples Issues & Resources article
View United Nations Declaration on the Rights of Indigenous Peoples
Visit United Nations Forum on Declaration on the Rights of Indigenous Peoples
downloadDownload February 22, 2010 British Columbia All Chiefs' Task Force media release (PDF)
downloadDownload April 23, 2010 Assembly of the First Nations of Quebec and Labrador press release
Source: Indigenous Peoples

Indigenous Peoples: Culture, Identity & UN Declaration

UN logoDuring the Inter-Agency Support Group on Indigenous Peoples' Issues annual meeting in Paris, France, a roundtable discussion reflected on topics of "Indigenous Peoples' Development with Culture and Identity: Articles 3 and 23 of the UN Declaration on the Rights of Indigenous Peoples".

The speakers discussed indigenous peoples' vision of development in today's rapid societal transformation, globalization and climate change, and explored ways to reinforce collaboration between indigenous peoples, governments and the UN system as a whole.

Key questions from the committee include:
  • Indigenous peoples' aspirations: Future under 2007 Declaration on the Rights of Indigenous Peoples?
  • What is meant by 'development with culture and identity' in context of globalization and climate change?
  • How can the UN system support indigenous peoples in making their aspirations a reality?
Other key issues from this discussion include:
  • Traditional livelihoods have to be promoted and encouraged because they maintain biodiversity and have a low ecological footprint, but also because they are the roots of indigenous peoples' identity.
  • Governments should include international legislation in national policies so indigenous peoples are granted full citizenship without renouncing their cultural identity.
  • Governments and international organizations should work directly with indigenous peoples and indigenous organizations.
  • The United Nations should build a strategy to listen to indigenous peoples so they contribute their knowledge, know-how and worldviews to international issues.
  • Education and capacity-building programmes in reproductive health care and home-based care are needed to overcome high mortality rates.
  • Local, indigenous peoples' languages face extinction in many areas of the world.
  • Sustained efforts are needed to push for partnership-building, inclusion of indigenous peoples' issues, in budgets, development of indicators and research.
  • Identity has to be considered in capacity building to create sustainable relationships, in addition to natural and political environments/relationships.
  • Identity must be regarded in an inclusive, not exclusive process leading to harmonious coexistence.
View Indigenous Peoples Issues & Resources article
Source: Indigenous Peoples

New Zealand Affirms Rights of Indigenous Peoples

New Zealand flagOn April 19, 2010, Carlos Mamani, Chair of the United Nations Permanent Forum on Indigenous Issues (UNPFII) received a roaring applause when he stood up and declared, "I am very pleased that today, New Zealand has declared its support for the Declaration. In doing so, the Government of New Zealand has reaffirmed the principles of respect, non-discrimination and good faith enshrined in the Declaration."

"Today's announcement restores our mana and our moral authority to speak in international fora on issues of justice, rights and peace," stated New Zealand's Minister of Maori Affairs, Dr. Pita Sharples.

"While the declaration is non-binding, it both affirms accepted rights and establishes future aspirations. My objective is to build better relationships between Maori and the Crown, and I believe that supporting the declaration is a small but significant step in that direction," added New Zealand's Prime Minister, John Key.

When the UN General Assembly adopted the UN Declaration on the Right of Indigenous Peoples (hereinafter simply Declaration) on September 13, 2007: 143 countries voted in favour, 11 abstained, while 4 countries (New Zealand, Australia, Canada, and the United States) opposed the Declaration.

The day following New Zealand's announcement, Washington's U.N. Ambassador Susan Rice announced that the U.S. would be reviewing it's opposition to the Declaration.

Canadian Governor General Michaelle Jean, in her March 03, 2010 Speech from the Throne, declared: "A growing number of states have given qualified recognition to the United Nations Declaration on the Rights of Indigenous Peoples. Our Government will take steps to endorse this aspirational document in a manner fully consistent with Canada's Constitution and laws,"

Despite the apparent reversal of positions, it remains to be seen when Canada or the U.S. will affirm the Declaration, or what caveats they will demand in return.

View more information on the UN website
View the United Nations Declaration on the Rights of Indigenous Peoples
View the 2010 Canadian Speech from the Throne
View April 19, 2010 United Nations press release
View April 20, 2010 New Zealand Government (office of Pita Sharples) press release
View April 20, 2010 New Zealand Government (office of John Key) press release
View April 20, 2010 The New Zealand Herald article
View April 23, 2010 Indian Country Today article
View May 3, 2010 Indian Country Today article

Source: United Nations website, New Zealand Government

First Nations Take Oil Sands to Supreme Court

Supreme Court of Canada sealThe Supreme Court of Canada has granted intervenor status to Duncan''s First Nation (DFN) and Horse Lake First Nation (HLFN) in a case about oil sands, pipelines, oil sands infrastructure and other major projects. The First Nations are seeking Supreme Court of Canada assistance in defending their Aboriginal and Treaty rights in the face of mounting oil sands development.

DFN Chief Don Testawich stated, "Our traditional territory is being overrun and cut to pieces by oil sands, major pipelines, gas fields and major power projects. Companies projects that will fuel unsustainable oil sands growth. Development on this scale is making our Treaty Rights meaningless and threatens our traditional way of life".

Chief Testawich added, "The governments of Alberta and Canada sit back and refuse to address our concerns. We are intervening before the Supreme Court because it is abundantly clear that neither the environment nor First Nations can expect to receive a fair hearing within Alberta, where oil sands revenues are at stake. We need help now and help fast".

The First Nations are taking this matter to the Supreme Court because of their mounting frustration over refusal by the governments and their regulators to act on earlier court decisions that direct governments to deal with their rights. Canada''s Supreme Court will hear views of First Nations, governments and industry in the Rio Tinto Alcan Inc. v. the Carrier Sekani Tribal Council case whichwill address the question of whether regulatory boards and tribunals have a duty to decide whether the Crown adequately consulted and accommodated First Nations'' concerns before granting approvals for resource development.

View March 12, 2010 Indigenous Peoples article
View April 9, 2010 CanadianClimateAction article
View April 12, 2010 Tar Sands Watch article


Mercury Killing Grassy Narrows Citizens

Youth blocking truckA new translation of a health study by mercury expert Dr. Harada plus recent tests show impacts from mercury poisoning in Grassy Narrows First Nation community are worse now than in the 1970's.

Dr. Harada's study found Health Canada safety mercury guidelines are too weak to protect people from long-term health impacts of low level mercury exposure, which is now worldwide due to industrial pollution from sources such as pulp mills, and coal power plants. The translated study was released on the 40th anniversary of the first fishing ban due to mercury contamination on the Wabigoon River.

Between 1962 and 1970, the Dryden mill, owned by Reed Incorporated and Great Lakes Forest Products Limited, dumped 20,000 pounds of mercury into the Wabigoon River. Members of Grassy Narrows First Nation converged on Queen's Park April 7th 2010 to protest decades of mercury poisoning in their community.

"We're demanding justice and action on this issue," states Grassy Narrows Chief Simon Fobister.

"The people of Grassy Narrows have raised their concerns for forty years, only to have them fall on deaf ears," states Ontario Regional Chief Angus Toulouse. "The demands of Grassy Narrows First Nation are simple and achievable - it is time for the government to listen to the voices of the First Nation."

View Free Grassy Narrows website
downloadDownload translation of Dr. Harada's report (PDF)
View April 6, 2010 Indigenous Peoples article
View April 6, 2010 CBC article
View April 6, 2010 Toronto Star article
View April 7, 2010 CBC article
View April 7, 2010 Indigenous Peoples article

Source: Indigenous Peoples, CBC

Union of BC Indian Chiefs
Supports Opposition to Sun Peaks Inc.

UBCIC logoNeskonlith Indian Band's Chief Judy Wilson and Adams Lake Indian Band's Chief Nelson Leon have voiced their communities' alarm over lack of meaningful consultation in the face of the accelerated rate of community consultations with non-Native residents to incorporate Sun Peaks Resort as a municipal government.

"The Union of BC Indian Chiefs fully supports the efforts of Chief Wilson and Chief Leon to ensure that the rights of their respective communities are recognized, respected and protected," stated Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs. "What started as a recreational tenure for a local ski hill, has turned into a massive four-season high-density resort which now desires to incorporate as a municipality."

In March 2007, the UBCIC Chiefs Council passed Resolution 2007-21 which noted the efforts in 2007 of Chief Wilson and Chief Leon to respond to the work of the Sun Peaks Incorporation Study Committee. Specifically, they stated their communities' opposition to the municipal incorporation and to the proposed Ministry of Forests' road construction to Sun Peaks Resort until their Aboriginal Title and Rights were addressed and their interests fully reconciled.

Grand Chief Phillip added, "The Union of BC Indian Chiefs fully supports meaningful consultation that respects Aboriginal Title and Rights and not a process where the economic or commercial interests of the privileged few trump ecological values and constitutionally protected Indigenous Title and Rights."

View February 4, 2010 Union of BC Indian Chiefs news release
View February 6, 2010 Indigenous Peoples Issues & Resources article
Source: Indigenous Peoples

First Nations Have Less Environmental Protection

Sheila FraserIn the 2009, Auditor General of Canada, [Fall Report], Ms. Sheila Fraser stated that Indian and Northern Affairs Canada (INAC) and to a lesser extent Environment Canada, routinely fail to regulate environmental threats on reserves.

"As a result, people living on reserves have significantly less protection from environmental threats than other communities," says Ms. Fraser.

The report stated that contrary to regulations under the Indian Act, most landfill sites and sewage treatments on reserves operate without permits, monitoring, or enforcement by INAC. Septic systems, wastewater discharges, and hazardous waste are some of the environmental threats not subject to regulation on reserves, but which are strictly controlled off reserves.

The Auditor General also found that despite INAC's commitment to transfer more control to First Nations over management of their lands and resources, their access to land management programs and training is limited.

The INAC agreed with all of the comments made in the Auditor General's Report and states throughout the report that they will work to develop strategies to identify and close regulatory environmental gaps on reserves.

View 2009 Fall Report of the Auditor General of Canada
View November 3, 2009 Office of the Auditor General press release
View November 15, 2009 Intercontinential Cry article

Sources: Office of the Auditor General, Intercontinental Cry

Court Decisions - Aboriginal Rights and Métis Peoples

The Métis National Council has posted the 2006 Métis Law Summary, which explores with rights based issues, negotiations, consultation and litigation concerning Canada's Métis peoples.

The Métis Law Summary provides discussion and legal analysis regarding topics such as:
  • Métis Nation history
  • defining Métis communities
  • historic Métis trials
  • the law of Aboriginal rights and how that law applies to the Métis
  • recent Métis harvesting cases - Goodon (Manitoba), Powley (Ontario), Willison (B.C.), Laurin3 (Ontario) and Kipp Kelley (Alberta)
  • Aboriginal title and Métis title
  • constitutional interpretation and obligations (jurisdiction, interpretation of the term "Indian" in the Natural Resources Transfer Agreements, equality rights, etc.)
  • class actions (residential schools, Métis veterans claim)
  • Métis-specific legislation
downloadDownload the Métis Law Summary 2006 (PDF)
View archives of the Métis Law Summary as well as other legal analysis
View 2003 The Métis Nation of Ontario - The Powley Case

View January 8, 2009 Manitoba Court Decision - Goodon Case (PDF)
View January 8, 2009 Manitoba Métis Federation article
View January 8, 2009 CBC article
Source: Métis National Council

Recent Court Decisions - Aboriginal Rights

In the past few years, there have been several court cases and legal decisions with significant implications for Aboriginal rights related to lands, resources and the duty of the Crown to consult. We are highlighting a few of these, as they include consistent references to the larger body of court decisions regarding Aboriginal rights in Canada and Crown obligations to meaningfully consult with Aboriginal peoples concerning decisions that affect their rights.

Maliseet and Mi'kmaq and the Aboriginal Right to Timber for Domestic Purposes
'A practice undertaken for survival purposes can be considered integral to an Aboriginal community's distinctive culture.' - Supreme Court decision

In the Sappier Decision handed down on December 7, 2006, the Supreme Court of Canada upheld New Brunswick Court of Appeal decisions finding that the Maliseet and Mi'kmaq people have an Aboriginal right to harvest timber from Crown lands for domestic uses. The judges decided three New Brunswick men who took Crown wood to make furniture, build a home and burn as firewood were exercising their Aboriginal rights.

As the first Supreme Court decision to recognize an Aboriginal right to timber, the decision will have important practical implications - governments may have to review forest tenures and regulatory regimes to consider whether changes are required to accommodate any site-specific rights that may be established in the future. While the decision clearly rules out any commercial component to the right, existing commercial timber licensees may still be affected if governments are required to give priority to Aboriginal timber harvesting rights over commercial rights.

View the December 7, 2006 Supreme Court of Canada decision - R. v. Sappier; R. v. Gray

The Dene Tha', Ministry of the Environment and Mackenzie Gas Project - Duty of the Crown to Consult
On November 10, 2006, Justice Phelan of the Federal Court ruled in favour of the Dene Tha' First Nation, finding that the Crown breached and continues to breach their duty to consult the Dene Tha' concerning the Mackenzie Gas Project. This decision illustrates the significant risk resource developers may face if government fails in its consultation obligations to Aboriginal groups. Justice Phelan ordered hearings on any aspect of the project affecting Dene Tha' lands in northern Alberta to cease.
Source: Osler

View the November 10, 2006 Federal Court of Canada decision - Dene Tha' First Nation v. Canada (Minister of Environment)

Mikisew Cree First Nation and the Ministry of Canadian Heritage - Crown Consultation Duties and Treaty Right Infringement
The November 24, 2005 Supreme Court of Canada judgment regarding the Mikisew Cree First Nation examined consultation and accommodation duties of the Crown in the context of historical treaty rights. The Supreme Court confirmed that while governments have the power under treaties to authorize land uses, which infringe on treaty rights, governments also have a duty to consult where the taking up of land affects those rights.

The case involved plans to build a winter road along reserve land through Wood Buffalo National Park to allow four communities in the Northwest Territories to access the highway system in Alberta. The Mikisew Cree First Nation objected to the proposed road on the grounds that it would infringe on their hunting and trapping rights under Treaty 8.

The Supreme Court overturned the Federal Court of Appeal's decision, and crafted a decision that balanced governments' need to manage lands and resources in the broader public interest with proper consideration of impacts on treaty rights in governments' decision-making processes. The Supreme Court found that, because the "taking up of land" adversely affected the First Nation's treaty right to hunt and trap, Parks Canada was required to consult with the Mikisew Cree before making its decision. As Parks Canada had failed to do so, the Supreme Court set aside the Minister's approval of the winter road, and sent the matter back to the Minister for reconsideration in accordance with the decision.

View the November 24, 2005 Supreme Court of Canada decision - Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)

Haida Nation, the BC Ministry of Forests and Weyerhaeuser - Crown Duties of Consultation and Accommodation and Unproven Aboriginal Rights and Title
On November 18, 2004, the Supreme Court of Canada released its decision in Haida Nation v. British Columbia and Weyerhaeuser.

The unanimous 7-0 judgment delivered by the Chief Justice Beverley McLachlin found that the Crown does have a duty to consult the Haida Nation; however, the duties of consultation and accommodation to the Haida Nation do not extend to Weyerhaeuser. The Court did acknowledge that there are some circumstances where third parties could be liable to Aboriginal Peoples.

The Haida Nation challenged the Minster of Forests' decision to replace a Tree Farm Licence (TFL 39), an exclusive forestry tenure that covers one quarter of the land base of Haida Gwaii, the homeland of the Haida Nation.

The Supreme Court of Canada affirmed that the Haida have a good case in support of Aboriginal Title and a strong case for the Aboriginal Right to harvest red cedar. Therefore, the Court held that the Province has a legally enforceable duty to consult the Haida with respect to TFL 39 and that the Province failed to fulfill this duty when replacing and approving a transfer of TFL 39. The Haida are not required to prove their Rights or Title in court before the duty of consultation arises: a key clarification of the law.

The decision is important as it set out the scope and nature of the duties of consultation and accommodation, as owed by the Crown, and, in limited procedural circumstances, by industry, to Aboriginal peoples whose Aboriginal rights are affected by development on their traditional territories. The Supreme Court outlined a principle described as the "honour of the Crown" as the driving force behind the Crown's duty to consult and accommodate Aboriginal peoples and held that the 'honour of the Crown' requires interim protection of Aboriginal interests pending proof or resolution.

View the November 18, 2004 Supreme Court of Canada decision - Haida Nation v. British Columbia (Minister of Forests)

The Taku River Tlingit First Nation and the BC Government - Crown Duties of Consultation and Accommodation
Similar to the Haida decision (see above), the November 18, 2004 Supreme Court of Canada decision regarding the Taku River Tlingit First Nation v. British Columbia, declared that the Crown has a duty to consult and accommodate in cases where Aboriginal title and rights have not been proved in court.

The Taku River Tlingit challenged the 1998 decision to grant Redfern Resources a project approval certificate to reopen and build a road to the old Tulsequah Chief mine, which had previously been operated in the 1950's. The certificate was granted despite the objections of the Taku and followed an extensive three-and-a-half year environmental review process.

The Supreme Court ruled that the Province was under a duty to consult with the Taku River Tlingit in making the decision to reopen the mine. The Province was aware of the Taku River Tlingit's claims of Aboriginal rights and title by virtue of its involvement in the treaty negotiation process, and also knew that the decision to reopen the mine had the potential to adversely affect the substance of the Taku River Tlingit's claims. The Court clarified that an Aboriginal group need not be accepted into the treaty process for the Crown's duty to consult to apply to them. However, the Court suggested that acceptance of a title claim for negotiation establishes a prima facie case in support of Aboriginal rights and title.

The decision means that governments need to ensure they have fulfilled their duty to consult with First Nations before granting interests to lands where they may have rights The decision also established a strong legal foundation for the Tlingits' role as stewards of their territory, which allows them to continue their work to sustain the lands and resources on which their future depends.

View the November 18, 2004 Supreme Court of Canada decision - Taku River Tlingit First Nation v. British Columbia (Project Assessment Director)

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