A recent decision from the Ontario Court of Appeal considered two claims brought by the Saugeen First Nation and the Chippewas of Nawash Unceded First Nation. This is the first time an appeal court has considered the application of the Aboriginal title test to claims to title over waterbodies.
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The Province’s “new approach to litigation” seeks to transform the government’s relationship with Indigenous peoples by prioritizing alternative dispute resolution and negotiated settlement over adversarial, courtroom litigation that presents challenges to achieving reconciliation.
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The BC Supreme Court ruled that Rio Tinto Alcan is interfering with Aboriginal fishing rights and causing harm to fish in the Nechako watershed. A team of Ratcliff lawyers worked in collaboration with the Sai’kuz and Stellat’en First Nations to advance the claim and achieve this significant step forward in Aboriginal Law in Canada.
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An overview of legal matters to be considered in connection with a for-market development of First Nation reserve lands. For-market development of reserve lands involves many complex legal matters, the number and complexity of which may vary significantly between developments, depending on a wide range of variables.
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More and more Indigenous governments are investing, and are directly involved, in for profit business ventures. Brent Lehmann outlines considerations for First Nation governments for participating in mainstream economic development.
Continue readingOnce a treaty has been negotiated, there are numerous activities that must be completed in order to “close” and then “implement” the treaty. Brent Lehmann provides insights on activities required of a first nation relating to the closing and implementation of their treaty.
Continue readingThis paper provides an overview of the most common land management regimes that govern development and environmental management on First Nations lands in B.C., discusses the successes and challenges First Nations face with respect to the current policy based regime that applies to contaminated sites on most Indian reserves in B.C. and proposes strategies for moving forward as the options for development and protection of the environment on First Nations lands expand.
Continue readingBand councils owe fiduciary duties to their bands and to band members. These are distinct duties and while they are generally compatible they can, in some circumstances, conflict. Although the relationship between these duties has not received much attention from courts or academics, it is of great practical importance for band councils.
Continue readingGiven the cultural and economic importance of commercial fishing to BC First Nations, and in particular coastal First Nations, the answer to this question is obviously “yes”. However, this answer must be qualified somewhat: “Yes, provided the inclusion of commercial fisheries in the treaty meets the cultural and economic needs of the respective First Nation”.
Continue readingThe jurisprudential life of the Crown’s duty to consult with aboriginal people in the interim of the final determination of aboriginal claims is almost a decade long. Since the Supreme Court of Canada’s confirmation of the duty in 2004, First Nations have spent a lot of litigation time and effort trying to determine just how, when, and where they can enforce this duty.
Continue readingThe duty to consult articulated by the Supreme Court of Canada in Haida Nation v. British Columbia in 2004 continues to play an important and prevalent role in the process of Crown-First Nations reconciliation. This paper discusses the state of the law of consultation in 2013.
Continue readingAs this paper suggests, litigation has played and will continue to play an essential role in achieving reconciliation by more clearly defining rights in difficult areas and advancing negotiations on important issues that might otherwise be irreconcilable. In fact, litigation and negotiation can intersect very comfortably with one another and lay groundwork for achieving reconciliation.
Continue readingOn November 3, 2009, the B.C. Supreme Court released its judgment in Ahousaht Nation v. Canada. Madam Justice Garson (now J.A.) concluded that all five Nuu-chah-nulth plaintiffs have aboriginal rights to fish in their traditional territories and sell that fish into the commercial marketplace.
Continue readingThrough a framework developed in R. v. Marshall; R. v. Bernard, and R. v. Sappier the Court has set an analytical framework that focuses on the modernization of aboriginal rights with the objective of making them relevant and meaningful in a modern economy.
Continue readingOverview of Squamish Nation’s environmental assessment process, which was designed to parallel Crown environmental assessment processes and ensure project impacts on the Nation’s rights and title interests are understood and properly avoided or mitigated.
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