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New FCA decision creates dangerous loophole to the duty to consult and accommodate

A recent decision of the Federal Court of Appeal (“FCA”) has muddied the waters regarding the role of the administrative tribunals in Crown-Aboriginal consultation and effectively diminished the duty of tribunals to assess the adequacy of Crown consultation in respect of project applications before them. The decision, Chippewas of the Thames First Nation v Enbridge


Solitary confinement and federally sentenced Indigenous women: a moment for change

Indigenous people, and especially Indigenous women, are disproportionately subject to solitary confinement in Canadian prisons, a treatment that has long-term health consequences for those subject to it. Last week, the Globe and Mail reported that Jody Wilson Raybould, Canada’s new Minister of Justice, has been given a mandate to limit the use of solitary confinement


Who gets compensation for failed Aboriginal consultation?

The Supreme Court of Canada has closed the final door in the complicated saga of a B.C. logging dispute that raised questions about Aboriginal consultation, and the remedies available to both First Nations and corporations when the consultation process fails. The Supreme Court of Canada denied a logging company leave to appeal a series of


Public governments must diligently fulfull the purposes underlying treaty promises

The Yukon Court of Appeal has confirmed that public governments must act diligently to ensure fulfillment of the purposes behind their treaty obligations. The First Nation of Nacho Nyak Dun v. Yukon case has important implications for the land, water and resource co-management regimes set up under modern land claim agreements. The Court of Appeal


Making First Nations financial transparency fair

A new Federal Court decision pauses Canada’s efforts to force First Nations to disclose private financial information. Aboriginal groups challenging the First Nations Financial Transparency Act (the “FNFTA”) won an important interim victory on October 23. The Federal Court agreed that Canada’s efforts to force a few First Nations to publish financial information – including


Crib Notes for Election Day

A lot has been written about changes to the voting process in Canada.  Yes, some things have changed, and yes, Elections Canada Chief Electoral Officer has warned that the changes contained in the Fair Elections Act “will not serve Canadians well”.  But with October 19th upon us, what is important now is that everyone who


Inadequacies in NEB process raises important questions about the Energy East Project

By Gillian Paul and Ashley Hamp-Gonsalves Unilateral cuts to participant funding in the National Energy Board (“NEB”) hearings for the Energy East Pipeline have raised grave concerns for First Nations about how they can participate in this process in a meaningful way. First Nations are raising concerns about how the serious impacts the proposed project


Yes or no is the way to go in Aboriginal resource development

A group of stakeholders consisting of resource companies, financial institutions, environmental groups and First Nations have taken a stand and are insisting that free, prior, and informed consent (“FPIC”) be a condition to development occurring in the traditional territories of Indigenous groups. This week, the Boreal Leadership Council (“BLC”) released a report urging both the


Canadian courts have jurisdiction to enforce foreign damage awards against Canadian subsidiaries

In the end, the unanimous decision of the Supreme Court of Canada in Chevron Corp. et al. v. Yaiguaje (2015 SCC 42, decided September 4, 2015) was simple. The indigenous Ecuadorian villagers in the Amazon jungle, who had been awarded damages against multinational oil company Chevron Corporation (“Chevron“) in the  Ecuador courts for environmental contamination


Kapyong Barracks: hope for an urban reserve

A new Federal Court of Appeal decision opens the door for First Nations seeking to enforce their rights (such as treaty land entitlements) under modern agreements with Canada, and moves several Treaty 1 First Nations closer to the reality of a new urban reserve in Winnipeg. The Federal Court of Appeal released its decision in