The Supreme Court of Canada has ushered in a new generation of land claims deals. Like an annual checkup at an overworked GP’s office, these land claims deals are formal, brisk, and to the point – and if you miss the meeting, you’re charged a small yet potentially aggravating stipend. This case discusses the duty [...]

The Supreme Court of Canada (“SCC”) has released its decision in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 (“NIL/TU,O”). TheCourt.ca had first brought the B.C. Court of Appeal case to light nearly two years ago here. In its judgment, released November 4, the SCC re-visited the test for [...]

The assertion of Crown sovereignty is a question that has never been resolved in Canadian constitutional jurisprudence. The mindset of original settlers was that Aboriginal peoples did not count as inhabitants of the land, so discovery applied in order to assert sovereignty. As Canada moves to an era of equality of all peoples, ignoring a [...]

Last week marked a pivotal turning point in the development of Aboriginal law and the demarcation of federal-provincial jurisdiction. For the first time ever, the SCC was faced with the challenge of interpreting the James Bay and Northern Quebec Agreement (the Treaty) in its decision in Quebec (Attorney General) v. Moses, 2010 SCC 17.  The [...]

On March 11, the Supreme Court of Canada granted leave to appeal in Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern Development), 2009 ABCA 239, a constitutional equality case centered on native rights legislation. The Case At issue were sections 75 and 90(1)(a) of the Métis Settlements Act, R.S.A. 2000, c. M-14 (“MSA“). The [...]

If there’s anything that can come close to being a guaranteed money-maker these days, it’s probably a casino. Any disagreement about who gets to share in the spoils of owning a casino is almost sure to go before a judge. So when Ontario’s First Nations got into a dispute about who was getting what of [...]

Two stories last week, one involving an appeal and one about a case just getting underway, showcase another delaying tactic in the arsenal of the deep-pocketed litigant: reasonable apprehension of bias. The Ontario Court of Appeal released its judgment Friday in Ontario Provincial Police v. MacDonald (2009 ONCA 805), ruling on OPP Commissioner Julian Fantino’s [...]

Canada recognizes and affirms existing Aboriginal and treaty rights in section 35(1) of the Constitution Act, 1982. The SCC, following this constitutional recognition, devised a jurisprudential regime setting out standards for defining, identifying and violating Aboriginal rights. This regime incorporates the duty to consult and accommodate Aboriginal rights. The SCC in Haida Nation v. British [...]

R. v. Kapp, 2008 SCC 41, was a s. 15 Charter challenge to British Columbia’s issuing of communal fishing licences to aboriginal bands. The majority of the Supreme Court decided that s. 15(2) provided a full defence to the claim, making it unnecessary to conduct a full s. 15(1) analysis. Nevertheless, McLachlin C.J. and Abella [...]

In Friends of the Oldman River Society v. Canada, [1992] 1 S.C.R. 3, Justice LaForest wrote that an “[e]nvironmental impact assessment is, in its simplest form, a planning tool that is now generally regarded as an integral component of sound decision-making.” One of the enumerated purposes of the Canadian Environmental Assessment Act, S.C. 1992 c.37, [...]