The Supremes give a lesson on the duty to consult and accommodate

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On July 26, 2017, the Supreme Court of Canada rendered two much awaited decisions respecting the duty of the National Energy Board to consult and accommodate the aboriginal rights of two distinct Indigenous peoples for two distinct projects. In one, Clyde River (Hamlet) v. Petroleum Geoservices Inc., 2017 SCC 40, a tiny Inuit community from Nunavut convinced the Court that it had not been deeply and meaningfully consulted or reasonably accommodated and therefore, the National Energy Board’s approval of the petroleum-testing project was overturned and quashed. In the other, Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, the Court held that the NEB had appropriately and sufficiently consulted and then accommodated the southwest Ontarian Indigenous nation and upheld the NEB’s approval of Enbridge’s project. Of note, the Court ordered that the Chippewas of the Thames pay Enbridge’s costs.

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Tsilhqot’in Nation v. British Columbia – the Dawning of a New Era

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The Chilcotin, British Columbia

On Thursday, June 26, 2014, the constitutional framework of Canada experienced an earthquake. Whether it was an earthquake of Richter scale 7 or 8, I cannot say. But let no one think otherwise – this was a big one. Whether it was the Big One or not will remain to be seen. For the first time in Canadian history, there has been a finding that a First Nation has established their claim to Aboriginal title. The Supreme Court of Canada decided in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 that the Tsilhqot’in Nation has proven its Aboriginal title to a swath of some 1900 square kilometers in the interior of British Columbia. What precipitated the action in which the claim was made was the Province’s issuance of timber harvest licences without consultation to the First Nation in question. Now, not only are the timber harvest licences invalid but the provincial Forest Act is now constitutionally inapplicable to those 1900 square kilometres. This is just the first claim of hundreds. After this decision, governments across the country are running back to check the claims of the First Nations resident in their territories – just how strong are those claims to Aboriginal title? – did those treaties really extinguish Aboriginal title or were they some sort of lesser treaty? – have the First Nations been consulted and accommodated in accordance with the Court’s dictates?

The Chief Justice spoke for the full court. In a relatively short 153 paragraph judgment that was clearly crafted with care and that united the various themes and principles that have been articulated in previous cases, she pronounced on the requirements for proving Aboriginal title, the rights conferred by Aboriginal title, the duties owed by the provincial government at the time of infringement and the ongoing ability of the provincial government to legislate and govern in respect of the Aboriginal title lands. While I cannot do it justice in a single post, I will touch upon some of the highlights and then discuss what I think this judgment means in the long term.

Before I go there, however, I want to present the thesis that this is not simply an Aboriginal law case focussing on Aboriginal title: it is fundamentally a constitutional law case. Because of s. 35 of the Constitution Act, 1982, in my view, the import of this decision is that the First Nations of this country must now be engaged as full actors in our constitutional framework and not merely as historical irritants that must be somehow assuaged before moving on to getting the business of the country done. This is what makes this case so earthshaking in my view.
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