This comment is the third in a series detailing the ongoing development of Aboriginal title in Canada. Part I and Part II focused on the British Columbia Court of Appeal decision William v British Columbia, 2012 BCCA 285 [William]. This third part aims to provide an exegesis and analysis of the Supreme Court’s resolution of the appeal from William in Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot'in]. Any errors or omissions are solely the responsibility of the author. 

Overview

On Thursday, the Supreme Court of Canada released Tsilhqot’in Nation v British Columbia, 2014 SCC 44. This important case, the conclusion of a 30-year legal dispute, now represents the latest and most comprehensive statement of the law of Aboriginal title in Canada. It is also the first successful Aboriginal title claim. By recognizing and affirming the Tsilqot’in Nation’s title to over 1700 square kilometres of territory, the Supreme Court has given full effect to the words of section 35 of the Constitution Act, 1982. 

This comment will summarize the legal impact of Tsilhqot’in. It will set out (i) the central issues faced by the Supreme Court, (ii) the answers provided in the judgment, and (iii) the questions that persist. It does not aim to be conclusive, but a springboard for discussion.

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This commentary is the second in a series detailing the ongoing development of Aboriginal title in Canada. It follows a discussion of the British Columbia Court of Appeal’s decision, and is drawn from a larger essay, available in full, on SSRN.

Part I of this series rehearsed and critiqued the British Columbia Court of Appeal’s decision in William v British Columbia, 2012 BCCA 285. The goal of Part I was to demonstrate that Aborginal title, is not, by its nature, site-specific. That is, contrary to the Court of Appeal’s findings, it is not the case that successful title claims are all and only those claims which aim at securing title to strictly defined, intensely used tracts of land, such as particular salt licks or promontories used for fishing. A less intense, regular use or “territorial” kind of occupation is also consistent with the jurisprudence. The Court of Appeal erred in adopting a “site-specific” test for sufficient occupancy.

Part I concluded by suggesting that parsing sufficient occupancy into pre-determined acceptable and non-acceptable categories of site-specificity or territoriality was unhelpful to both parties, and indeed asked the wrong question. This second part takes up that point, and offers an alternative test for determining if a certain claim satisfies the Delgamuukw occupancy requirement.

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This commentary is the first of several parts detailing the ongoing development of the doctrine of Aboriginal title in Canada. This first part is a condensed and informal version of a longer paper that treats these issues in much greater detail. The longer version, complete with citations, is available here.  

A previous TheCourt.ca comment by Andrew Cyr provides the factual background and a summary of the trial judgment, Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, along with an outline of the history of Aboriginal title jurisprudence. This commentary begins where Mr. Cyr left off, chiefly concerning itself with the Court of Appeal’s decision. 

The Supreme Court of Canada will release its decision on the appeal from William v British Columbia, 2012 BCCA 285 [William], later this week. The resolution of this appeal will dramatically affect the shape and character of future Canadian Aboriginal title claims, for three reasons. The first is that in considering the appeal, the Supreme Court will have to clarify a particular point of Aboriginal title doctrine, namely, the nature of occupation sufficient to satisfy a claim to title. The Court of Appeal in William endorsed a narrow, site-specific understanding of title, essentially establishing a new and rigorous test for sufficient occupancy, which it held was consistent with previous jurisprudence and the overall goals of Aboriginal title. The Supreme Court is now tasked with determining whether the Court of Appeal erred in its decision.

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This is the final post in a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

For a PDF version of this post with full citations, please click here.

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The Implications of Constitutionalizing Environmental Protections

On December 6, 2013, federal Environment Minister Leona Aglukkaq approved Shell’s Jackpine Mine expansion project in northern Alberta. The project was approved despite having “significant adverse environmental effects.” According to the minister, these adverse environmental impacts were “justified in the circumstances.” However, no further explanation was provided as to what circumstances or factors informed the minister’s decision to approve the expansion. The minister simply found it “justified in the circumstances” and only those words convey her rationale.

The lack of justification for approving a project that is known to have significant adverse environmental effects is notable for how the decision reflects the nature of environmental law in Canada. As Martin Olszynski writes, “modern environmental law does not consist of hard rules or substantive limits but rather is focused primarily on the process of decision-making.” Environmental law is more concerned with whether a decision was made correctly, rather than whether a decision is correct. This procedural focus makes it unnecessary to provide any meaningful rationale or insight into a decision. Read the rest of this entry »

This post is the third of a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

For a PDF version of this post with full citations, please click here.

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How Odours from Heavy Oil Processing in the Peace River Region Can Constitute a s. 7 Infringement

The evidentiary record before the Alberta Energy Regulator inquiry into odours and emissions from heavy oil operations in the Peace River region makes clear that a s. 7 Charter claim asserting environmental protections can be made. The requirements of such a claim, as set out in the previous post, include: (1) government action has led to environmental impacts that (2) have resulted or will result in harm that (3) deprives the individual of their life, liberty or security of the person interests, and (4) that this deprivation is not in accordance with the principles of fundamental justice. Each element will be discussed in light of the factual conclusions that can be drawn from the inquiry’s documentary record and expert testimony. Read the rest of this entry »

On March 20, 2014, the Supreme Court of Canada granted leave to consider the Ontario Court of Appeal’s judgment in Sabourin & Sun Group v Laiken, 2013 ONCA 530. In addition to determining the law in Canada on civil contempt, the SCC’s decision will have significant ramifications on how lawyers across the country handle trust funds and Mareva injunctions in the future.

Canada’s highest court has considered the issue of civil contempt twice before, both times in relation to criminal contempt: United Nurses of Alberta v Alberta (Attorney General), [1992] 1 SCR 901, and Pro Swing v ELTA Golf, 2006 SCC 52. The upcoming Sabourin appeal will provide a welcome opportunity for the Supreme Court to clarify whether a third party with knowledge of a court order – such as a lawyer whose client is subject to a Mareva injunction – must be found to have been deliberately contumacious of the order before he or she can be held in civil contempt.

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On 28 February 2014, a German court dismissed a patent-infringement claim for US$2.2 billion in damages against Apple (LG Mannheim, 2 O 53/12 and 2 O 95/13). IPCom, a German patent-holding firm, claimed that Apple owed it damages for iPhones sold in Germany because Apple had allegedly violated its patent for granting mobile devices access to cellular networks.

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This post is the second of a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

For a PDF version of this post with full citations, please click here.

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The Anatomy of a s. 7 Charter Claim Asserting Environmental Protections

The Charter of Rights and Freedoms, unlike the constitutional bills of rights found in Ecuador and South Africa, does not specifically include protections for the environment. However, the Charter’s broad scope allows environmental protections to be read into the document’s individual rights provisions. Although this has not yet occurred, academics have written extensively on how the Charter can be expanded to include environmental rights. The court itself has noted the possibility of constitutionalizing environmental rights protections under the Charter. In this regard, s. 7 is often cited as the Charter provision most likely to include environmental protections. Read the rest of this entry »

In R v Schmidt, 2014 ONCA 188 [Schmidt], a decision released on March 11, 2014, the Ontario Court of Appeal considered the legality of a milk farmer’s scheme to sell unpasteurized milk and milk products – which can pose a serious health risk – as part of a “cow-share agreement.”

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This post is the first of a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

For a PDF version of this post with full citations, please click here. 

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Constitutionalizing Environmental Protections Under the Charter: Health Complaints and Heavy Oil Processing in the Peace River Region

Reno and Three Creeks are communities located in Alberta’s Peace River region. For years, community residents have complained of adverse health impacts resulting from emissions released by heavy oil processing facilities in the area. In early 2014, the Alberta Energy Regulator (AER) conducted a public inquiry into the concerns residents have regarding odours and emissions associated with heavy oil operations in the region. The results of the inquiry are expected to be released March 31, 2014.

From an environmental law perspective, there are a variety of ways to approach the concerns of Peace River residents. For instance, the odour and emissions management regulations for heavy oil production facilities in Alberta can be assessed for their efficacy. This appears to be the approach employed by the AER inquiry, which heard from experts and community residents to develop better regulations for heavy oil operations in the province. A “toxic-tort” perspective may be another approach by which the harms experienced by community residents are examined in relation to the industrial activity alleged responsible. Provided there is sufficient causation to determine culpability, residents may be entitled to a private law remedy.

However, the Charter of Rights and Freedoms provides another lens through which the concerns of Peace River residents can be analyzed. Read the rest of this entry »