The Northern Gateway Pipeline and the Duty to Consult

February 2, 2016
Blog Post
By:

First Nations and other players in the resource-development arena are now very familiar with the Crown’s duty to consult with, and in some cases accommodate, Indigenous peoples when development projects have the potential to impact Aboriginal and treaty rights. A recent decision of the British Columbia Supreme Court takes this discussion a step further by asking: to what extent can a provincial government pass its duty to consult over to the federal Crown?

Year in Review – 2015

December 10, 2015
Blog Post
By:

2015 was a big year for Indigenous law – both inside and outside of the courts. Here is our round-up of just a few of the noteworthy events, including The Truth and Reconciliation Commission, Indigenous representation on juries, and traditional medicine.

The Place of the Métis and Non-status Indians in the Constitution Act – Why does it matter?

November 26, 2015
Blog Post

We recently discussed the case of Harry Daniels, et al. v. Her Majesty the Queen, which was heard by the Supreme Court of Canada in October 2015. The claimants, initially represented by the late Chief Harry Daniels, have spent 16 years litigating for Métis and non-status Indian rights. But why does it matter that Métis and non-status Indians be recognized as falling within the ambit of s. 91(24) of the Constitution Act?

Are the Métis considered ‘Indians’ under the Constitution Act?

October 29, 2015
Blog Post
By:

On Thursday, October 8, 2015 the Supreme Court of Canada held its long-awaited hearing in Harry Daniels, et al. v. Her Majesty the Queen. The Supreme Court is being asked to determine whether the approximately 200,000 Métis and 400,000 non-status Indians fall under s. 91(24) of the Constitution Act, 1867.

Kahkewistahaw First Nation v. Taypotat: a balancing act in First Nations governance

October 8, 2015
Blog Post
By:

A recent decision by the Supreme Court of Canada explored some of the tensions faced by First Nations in establishing policies aimed at defining the qualifications of their leaders. In Kahkewistahaw First Nation v. Taypotat, the Court addressed potential discrimination in the community election code adopted by the Kahkewistahaw First Nation. After 13 years of community consultation, Kahkewistahaw adopted the Kahkewistahaw Election Act, which required all candidates for Chief and Council to have at least a Grade 12 education.

Labour relations jurisdiction post-NIL/TU,O

September 11, 2015
Blog Post

In the recent case Canada (Attorney General) v. Munsee-Delaware Nation, the Federal Court was asked to review an adjudicator’s decision that the employment relations of Indian Act bands are provincially-regulated. Until 2012, the Four B Manufacturing decision provided the test to be applied when determining whether an Indigenous organization’s employment relations were federally or provincially regulated. In its first decision on employment law in the aboriginal context since the 1979 Four B Manufacturing case, the Supreme Court changed the legal landscape.

The Fair Elections Act is here to stay – for now

August 19, 2015
Blog Post
By:

An Ontario judge has ruled that, although the controversial new Fair Elections Act may violate the Canadian Charter of Rights and Freedoms, it will apply in this fall’s federal election.

Right to Representative Jury – Not Black and White

June 25, 2015
Blog Post

On May 21st 2015, the Supreme Court of Canada released its decision in R. v. Kokopenace, which concerned the right of an Aboriginal accused to trial by a representative jury. Mr. Kokopenace was a member of Grassy Narrows First Nation, living on reserve, and was accused of second degree murder in the stabbing death of a friend. He was convicted of the lesser offence of manslaughter. However, just before sentencing, his counsel became aware that there may have been problems with the inclusion of Aboriginal on-reserve residents on the jury roll.

By-law Prosecution Success!

May 29, 2015
Blog Post

Lawyer Lanise Hayes succeeded in arguing for imprisonment in a recent by-law case involving a number of charges against an individual with respect to a community alcohol by-law. The accused had 12 files, and Lanise obtained imprisonment of between 10 and 20 days in each of the files for a total of 45 days imprisonment for the accused.