On April 23, 2021, a majority of the Supreme Court of Canada held in R v Desautel, 2021 SCC 17 [Desautel] that “the aboriginal peoples of Canada,” who hold rights under s 35(1) of the Constitution Act, 1982 [Constitution], are the modern successors of those Aboriginal societies that occupied lands now referred to as Canada […]
In the last three decades, Indigenous nations have increasingly chosen to address systemic injustices facing their communities through litigation. However, as many Aboriginal law cases are complex and novel in nature, Indigenous nations had to bear the associated legal fees as the cases moved through Canadian courts. Anderson v Alberta (Attorney General), 2020 ABCA 238 […]
In May of this year, thirty years will have passed since R v Sparrow, [1990] 1 SCR 1075 [Sparrow] was released. Sparrow was the first decision to apply section 35 of the Constitution Act, 1982 [Constitution], recognizing and affirming that Aboriginal rights predate Canada’s beginnings as a country. From the beginning, s. 35 was viewed as […]
On January 16, a reference panel of Supreme Court Justices dismissed the appeal of the British Columbia Court of Appeal’s (“BCCA”) decision in Reference re Environmental Management Act, 2019 BCCA 181 [BCCA Reference]. The SCC found that the BC government’s proposed amendments to the BC Environmental Management Act [EMA], which would have barred an entity […]
Peace and Good Order: The Case for Indigenous Justice in Canada by Harold R. Johnson McClelland & Stewart, 160 pages, $24.75 Peace and Good Order is part autobiographical tale of Harold R. Johnson’s life as an Indigenous Crown prosecutor and part scathing indictment of Canada’s criminal justice system. It is a timely and provocative read […]
At what point does a provincial environmental law which affects interprovincial pipelines stop being environmental legislation and start being an impermissible regulation of a federal undertaking? The British Columbia Court of Appeal (“BCCA”) was tasked with answering this question in the Reference re Environmental Management Act (British Columbia), 2019 BCCA 181 (EMA Reference), which pitted […]
Introduction Certain class action lawsuits require settlement agreements to ensure the fair distribution of settlement funds through an adjudicative process. An Independent Assessment Process (“IAP”) provides for an independent adjudicator to determine the validity of disputed claims. In JW v Canada (Attorney General), 2019 SCC 20 [JW], the Supreme Court of Canada (“SCC” or “the […]
On 28 March 2019, the Supreme Court of Canada (“SCC”) will hear Resolute FP Canada Inc, et al v Ontario (Attorney General), 37985, an appeal of a lengthy 270-paragraph decision from the Court of Appeal of Ontario (“ONCA”) of Weyerhaeuser Company Limited v Ontario (Attorney General), 2017 ONCA 1007 [Weyerhaeuser]. At first glance, Weyerhaeuser appears […]
The judiciary often hears aboriginal law cases in the context of a dispute with the Crown. Yet consider what would happen if the dispute was multi-jurisdictional: Could one province’s judiciary make binding orders and decisions on another province’s jurisdiction? Would the answer shift depending on access to justice and proportionality concerns? The Supreme Court of […]
