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Recent Court Decisions - Aboriginal Rights |
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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. Sources: Forestry Law Update
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. Sources: Clark Wilson LLP's Energy Law Newsletter; Environmental-Aboriginal Guardianship through Law and Education
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) Court Decisions - Aboriginal Rights and Métis PeoplesThe 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:
 Download the Métis Law Summary 2006 (PDF)View archives of the Métis Law Summary as well as other legal analysis Source: Métis National Council |
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