Asserted Aboriginal title can give rise to claims in private and public nuisance, and common law riparian rights.
Wednesday Apr 22, 2015
|Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan (2015 BCCA 154) is an appeal arising from a claim filed the Saik’uz First Nation and Stellat’en First Nation (the “Nechako Nations”) against Rio Tinto Alcan (“Alcan”) concerning Alcan’s Kenney Dam.
The Dam, authorized by an agreement between Alcan and the Province of British Columbia in 1950, is situated on the Nechako River and provides electricity for an aluminum smelter in Kitimat. In 1980, concerned about the state of the fishery in the Nechako River, the Federal Minister of Fisheries and Oceans directed Alcan to release more water from the Nechako Reservoir into the Nechako River. Litigation ensued, but the dispute between the Province and Alcan was eventually settled in 1987. Notwithstanding the settlement agreement, the issue of insufficient flow in the Nechako River continued to be a live issue for the Nechako Nations.
In the present case, the Nechako Nations argued that the diversion of water by Alcan at the Kenney Dam has serious detrimental effects on the Nechako River because the dam alters the timing and quantity of water flow, impacts water temperature, impacts natural erosion of the banks and encourages unnatural sedimentation in the river bed. All of these impacts are harmful to the surrounding ecological system. The Nechako Nations also argued that harm has been done to their fisheries resources, especially with respect to the possible extinction of the local Sturgeon population due to their inability to spawn under these changed conditions. Accordingly, the main thrust of the Nechako Nations argument was that their ability to use fisheries resources has been significantly interfered with, that they have lost the use, enjoyment and value of the fisheries and lands subject to their Aboriginal title, and that they have experienced negative cultural impacts, all as a result of the Kenney Dam.
In their claim, the Nechako Nations based their request for injunctive relief (and damages in the alternative) on private nuisance, public nuisance and breach of (or interference with) riparian rights. A preliminary issue raised by Alcan was whether or not the Nechako Nations could validly make a claim that falls within these categories, as they have not yet proven Aboriginal title to the land surrounding the Nechako River. Alcan argued that the Nechako Nation’s notice of civil claim disclosed no reasonable cause of action because (1) the Nechako Nation was not an owner of the land surrounding the Nechako River and (2) claims in private nuisance, and breach of (or interference with) riparian rights must be brought by land owners.
The chambers judge issued his decision before the Tsilhqot’in Nation case had been decided by the Supreme Court of Canada (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44). In his decision, the chambers judge found that a claim in private or public nuisance or for breach of riparian rights based on asserted but unproven claims to Aboriginal title and rights had no reasonable chance of success against Alcan. In other words, the chambers judge essentially found that the Nechako Nations would have to prove their Aboriginal title to the lands in question before any of their claims could have a chance of success in court. For these reasons, the judge at first instance found in favour of Alcan.
The Nechako Nations appealed this decision to the British Columbia Court of Appeal. The Court of Appeal found the following: (1) the Nechako Nations have a reasonable cause of action against Alcan in the tort of private nuisance; (2) the Nechako Nations also have a reasonable cause of action against Alcan in the tort of public nuisance; and (3) the Nechako Nations have a reasonable claim for interference with their riparian rights. In other words, Aboriginal title can give rise to recourse in private and public nuisance, and can also give rise to common law riparian rights.
Importantly, the Court of Appeal affirmed that it is not necessary for Aboriginal title and other Aboriginal rights to be proven in court or accepted by the Crown before potential Aboriginal rights holders can bring a claim to defend those rights from infringement.
Tuesday Apr 07, 2015
|Woodward and Company LLP is delighted to be ranked among the top boutique firms practicing Aboriginal law in Canada. The ranking is carried out by the independent legal directory, Chambers Global 2015.
Drew Mildon, Managing Partner at W&Co, noted: “There is a certain satisfaction to be ranked in this way. The Chambers ranking is based in part on client interviews. Our team constantly strives to achieve excellence in client service, and this recognition affirms our efforts in that regard.”
Chambers and Partners select firms for rankings based on a 3-step process; submissions put forward by law firms, client interviews during the course of research, and their own database resources.
Senior partner Eamon Murphy reflected on the top ranking, “We are thrilled to be ranked among the top Aboriginal law boutique firms. I am very proud to be part of this firm with its extensive history of dedication to justice for First Nation communities. It is a real pleasure to work with such an exceptional team of professionals.”
Friday Mar 06, 2015
|Federal Bill C-428, the Indian Act Amendment and Replacement Act, came into force on December 16, 2014. The many amendments it makes to the Indian Act are now incorporated into the consolidated Indian Act found on the Department of Justice website.
There are at least three key issues that First Nations should be alerted to:
1. Minister cannot disapprove bylaws enacted under s. 81
First Nations now have the authority to pass by-laws under s. 81 without first having to obtain the Minister’s approval. This will have an immediate impact on certain initiatives that are being undertaken by First Nations as the content of these laws will no longer be constrained by AANDC policy. This is especially relevant to dealing with waste and environmental management issues on reserve. The expanded seizure powers in s. 103 of the Act provide greater enforcement authority. Further, the revisions to s. 104 of the Act mean that monies received from fines imposed under s. 81 bylaws now belong to the First Nation. These changes mean that First Nations are in a much stronger position to enact and meaningfully enforce bylaws in all areas than they ever have been before.
2. Mandatory publication of by-laws
The new Section 86 of the Indian Act requires that the council of a band must publish a copy of every by-law made under the Act (meaning by-laws under s. 81, s. 83, and s. 85.1):
a) On an Internet site,
b) In the First Nations Gazette, or
c) In a newspaper that has general circulation on the reserve of the band.
We recommend that bands publish every by-law made under the Act, whether the by-law existed before this amendment or is created after the amendment.
3. No more Special Reserves
With a little legislative sleight of hand, Parliament has replaced section 36 with a new section 36.1. By changing the word “have” to “had”, Parliament has closed the door on the creation of any new special reserves.
Monday Jan 12, 2015
By Drew Mildon
2015 marks 30 years since Woodward & Company, working for the Tla-o-qui-aht and Ahousaht First Nations, won an injunction to stop the logging of Meares Island in Clayoquot Sound based on the Aboriginal rights of the two First Nations. In the Court of Appeal decision, which upheld the injunction that remains in place today, Justice Seaton noted that “The proposal is to clear-cut the area. Almost nothing will be left. I cannot think of any native right that could be exercised on lands that have recently been logged.” In response to the Meares injunction, then-BC Minister of Justice, Andrew Petter, wrote to the Court and requested that the matter be put in abeyance while British Columbia commenced a treaty process to address outstanding Aboriginal legal claims. While the original intention to seek a non-litigation resolution appeared honourable, the treaty process floundered in part due to the failure of British Columbia to put sufficient land and land management rights on the table.
It has been three decades since our law firm began this important struggle for justice – to ensure that First Nations resume their rightful place as decision- makers with respect to their traditional lands, and with respect to the ecological health and integrity of those lands. While there have been many frustrations, the tremendous successes of 2014 have marked a turning point and we believe there is great reason for optimism in 2015.
The June 26, 2014 Tsilhqot’in Nation decision of the Supreme Court of Canada included the very first Aboriginal title declaration in Canadian history. The journey we began with the Tsilhqot'in in the late-1980s has reached a stunningly successful conclusion. The Court found that the Tsilhqot'in hold Aboriginal title to almost 2,000 square kilometers of land in the BC interior, confirming what the First Nations had always known, those are their lands and they were never ceded, never treated, and always central to their culture. A clear message has been sent to British Columbia and Canada to get serious about Aboriginal title and to stop acting like it doesn’t exist. The Supreme Court of Canada said that the one sure way that Aboriginal title could be infringed is with the consent of the affected Aboriginal Group. Indigenous communities from around the world are looking to the decision and asking how they too can achieve the consent requirement promised by the UN Declaration on the Rights of Indigenous Peoples.
The Tsilhqot'in action also has important implications for other Aboriginal and Treaty rights. The BC Court of Appeal confirmed the finding that the Tsilhqot'in have an Aboriginal right to hunt and trap to earn a moderate livelihood. The result is that the constitutionally-protected right to an environment that provides a surplus and diversity of species to be hunted, trapped, and fished, is a right of conservation that can only be infringed if justified. The Court found that the Tsilhqot'in rights had been infringed and that BC’s forestry regime did not and could not be justified. We believe this reasoning is iron-clad and applies to the constitutionally protected Aboriginal and Treaty rights across Canada.
In the year ahead, First Nations will be dealing with a number of resource projects that seriously threaten the ecological integrity of their traditional homelands. In British Columbia, proponents will continue to push the Enbridge Northern Gateway and the Kinder Morgan Transmountain Pipelines. The BC Government recently announced their intention to proceed with the Site “C” dam, a project that will impact dozens of downstream communities and further impact Nations in Alberta and BC that saw their lands reduced or decimated by the Bennett Dam. In Ontario, Quebec and New Brunswick, the plan to convert an existing pipeline to send Alberta tar-sands bitumen east threatens the health and safety of innumerable lakes, rivers, and streams. In the prairies, the provincial governments continue to pour their hopes into a crashing oil industry and face off against many courageous Nations forced to defend the health of their communities at great cost.
In each of these cases, First Nations should engage early and address the proposed projects strategically, and be fully involved in the final decision-making. The colonization of resources on Indigenous lands is coming to end; the era of recognition and reconciliation has begun. 2015 promises to be an exciting year and we look forward to working with our clients to achieve their goals and to take back their lands.
Thursday Nov 27, 2014
Tsilhqot’in Nation v British Columbia, 2014 SCC 44.
On June 26, 2014, the Supreme Court of Canada unanimously declared that the Tsilhqot’in Nation have Aboriginal Title to approximately 1,700 square kilometres of land southwest of Williams Lake, BC. The Court also declared that British Columbia breached its duty to consult the Tsilhqot’in Nation when it issued logging licences on their traditional lands nearly 20 years ago.
This court decision, the first in Canadian history to formally recognize Aboriginal Title, is a victory for the Tsilhqot’in people, who have been fighting for control over their traditional lands for one-hundred and fifty years.
Woodward & Company LLP has been the Tsilhqot’ins’ legal counsel for nearly 25 years. We fought the 339-day trial in the BC Supreme Court on their behalf and represented them at the Court of Appeal and the Supreme Court of Canada. We are honoured and grateful to represent such a courageous Nation to the culmination of this victory.
The test for Aboriginal Title
The Supreme Court of Canada affirmed the test for Aboriginal title as set out in Delgamuukw v British Columbia which requires an Aboriginal group to show the land was exclusively occupied prior to sovereignty. In applying the test, a court:
… must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.
This is an important change from the Court of Appeal decision which held that an Aboriginal group must demonstrate that its ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty. The Supreme Court rejected the “postage-stamp” theory and held that Aboriginal Title is not confined to specific sites of settlement but also includes broad territorial tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources.
Significantly, the Court reiterated a critical direction from the Haida Nation case, once again stating that governments are under a positive duty to negotiate in good faith to resolve claims to ancestral lands.
Powers of Aboriginal Title Holders
As recognized holders of Aboriginal title, the Tsilhqot’in Nation now has the right to decide how Aboriginal title lands will be used; the right of enjoyment and occupancy of the land; the right to possess the land and the right to the economic benefits of the land. The unanimous Court specifically set out that this is not merely a right to first refusal but the right to proactively control and manage the land.
The Supreme Court found that while Aboriginal title confers ownership rights similar to fee simple, there are limits to the right. Firstly, the title lands may only be alienated to the Crown. Secondly, as title is a collective right held for both the present and future generations, the land cannot be used in a way that would substantially deprive future generations of the benefits that flow from the land.
Role of Crown in respect of Aboriginal Title Lands
The Court held that once Aboriginal title is established by a court declaration or agreement, the Crown must seek the consent of the title-holding Aboriginal group before approving developments on their land.
Absent consent, development of title land cannot proceed unless the Crown satisfies the demanding test for justifying infringement of Aboriginal title.
The test for justification requires the government to show: (1) that it discharged its duty to consult and accommodate; (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the Aboriginal group.
The compelling and substantial objective must be considered from the Aboriginal perspective as well as from the perspective of the broader public. To constitute a compelling and substantial objective, it must further the goal of reconciliation, having regard to both the Aboriginal interest and the broader public objective. In our opinion, it will be very difficult to justify any infringement without the consent of an Aboriginal title-holder.
Before Aboriginal title is established in the courts or recognized by the Crown, the Crown must consult with any Aboriginal groups that assert title to the land about the proposed land uses, and if appropriate, accommodate those groups. The level of consultation and accommodation required in each case will continue to be determined on the standard set out by the Court in Haida Nation. However, once title is established, the Crown action will be judged on the higher fiduciary standard of justified infringement. Once title is proven, it may be necessary to revisit past Crown decisions to determine if the Crown has met this higher fiduciary duty.
Application of provincial laws to Aboriginal Title lands
The Court found that British Columbia laws of general application may apply to Aboriginal title lands, as long as any infringements are justified under the Sparrow test. In other words, Aboriginal groups can no longer challenge provincial laws on the basis of s. 91(24) of the Constitution Act, 1867, or the doctrine of interjurisdictional immunity.
Laws and regulations of general application aimed at protecting the environment or assuring the continued health of the forests of British Columbia will probably not infringe Aboriginal title. In respect of the Forest Act, under which BC issued the initial logging licences which initiated this legal battle, the Court found that as a matter of interpretation of the statute, the legislature intended it to apply to lands claimed as title lands until title is proven in court. However, once title is confirmed, the lands were held to be “vested” in the Aboriginal group and are no longer Crown lands.
What this Means for First Nations
There are a number of important implications that should immediately guide the decisions of First Nations’ governments and other governments:
1. If British Columbia and industry proponents were negotiating and consulting based on the postage stamp view of Aboriginal title, and we expect they were, they will need to re-evaluate their negotiation positions and mandates.
2. The SCC has now cautioned the Crown twice (in Haida Nation and Tsilhqot’in Nation) that it is not enough to simply consult and accommodate about unresolved land claims. The Crown has a positive legal duty to actively take steps to implement the direction in Tsilhqot’in Nation about Aboriginal title and resolve outstanding claims through negotiations.
3. First Nations currently engaged in consultation processes should re-asses the strength of their claims to title based on Tsilhqot’in Nation and determine whether they wish to submit new evidence and whether the level of consultation and accommodation they are receiving is appropriate.
4. First Nations wishing to protect traditional lands from unsustainable exploitation and development now have a much larger tool in their toolbox. We expect that, within this new context, injunctions are more likely to be found in favour of a First Nation with a strong Aboriginal title claim.
5. Given the potential benefits of an Aboriginal title finding, First Nations will likely want to weigh the cost of obtaining a declaration of title against the potential benefits that would arise from recognized land ownership that includes a broad spectrum of economic benefits and rights.
At the trial level, the Tsilhqot’in also obtained a right to hunt and trap, and to trade the products of these activities, to maintain a moderate livelihood throughout the entire claim area. This means that the Crown cannot use the lands that were not declared Aboriginal title lands in ways that will interfere with the meaningful exercise of those rights – there must be sufficient protected natural habitat to provide a harvestable surplus of the species on which the Tsilhqot’in depend.
While further implications will arise in the future, it is fair to say the Tsilhqot’in have won a major victory in the rights of First Nations to protect, enjoy, and control their traditional lands.
Thursday Jun 26, 2014
|Victoria, British Columbia, June 26, 2014 - After a courageous struggle, a small Tsilhqot'in First Nation that took on the governments of Canada and British Columbia to protect their land and way of life has been victorious at the Supreme Court of Canada. Today, the court upheld the trial findings of the late Justice David Vickers, and granted the very first declaration of Aboriginal title in Canada.
"The Court has acknowledged our title to the land," said Chief Roger William of Xeni Gwet'in First Nation, "Since time immemorial we have always said that this is our land and acted to defend it, this is our law - now it is recognized in Canadian law. This ruling will help other governments understand that further steps are needed to achieve recognition for the entire Tsilhqot'in territory."
"For 156 years, since the colony of British Columbia was formed, the government has assumed that it owns the land, ignoring the rights of Indigenous peoples," said Jack Woodward, lawyer for the Plaintiff. "In today's judgment, the Supreme Court declared that First Nations continue to own their lands. The denial of aboriginal land rights, and its violent and grim social results, can no longer continue in light of this ground-breaking ruling."
"We are happy with the Court’s decision," said Chief William. "We are glad to see Canada’s highest court finally agree with what we have been saying all along. This is Tsilhqot'in land. It always has been.”
Throughout Canada, governments made treaties with First Nations to purchase their lands, but this did not happen in most of British Columbia. The provincial and federal governments have repeatedly denied the existence of the homelands of First Nations in this province. The United Nations has stressed that the recognition of land rights is required to develop economic and social frameworks for self-determination.
“This decision changes the legal landscape in British Columbia for industrial project development, whether its mines, pipelines, or LNG; proponents now have a clearer sense of the jurisdictional power of First Nations and their ability to protect their lands from unsustainable development,” noted Woodward.
Woodward & Company LLP would like to say sechanalyagh! to the Tsilhqot'in Elders and all the Tsilhqot'in people who worked so hard for so many years to make this outcome possible. We would also like to thank all the organizations and individuals whose personal sacrifices and support over this 25-year journey were indispensible. This could not have happened without the efforts and dedication of so many, including the years of effort by all the Plaintiff-side members of the Aboriginal Law bar and the courageous trial decision of the late Justice David Vickers; we raise our hands to you! Thank you to our friends and families for their love, support and sacrifices. Thank you to the Songhees and Lekwungen people on whose lands we live and work. And, as ever, as always, to our fearless leader Jack, whose courage and unsinkable belief that justice will always prevail is our guiding light.
(In photo above from left to right: David Rosenberg Q.C., Chief Roger William, David Robbins, Jay Nelson)
For our analysis of what this means for First Nations, follow this link.
Friday Jun 06, 2014
|On May 15, 2014 the Supreme Court of Canada heard the appeal from Keewatin v. Ontario (Natural Resources), 2013 ONCA 158. The appeal raises the question of how to interpret Treaty No. 3 insofar as it authorizes the taking up of Ojibway lands in parts of Ontario. Of significance across Canada, the appeal may also determine whether a Province has the authority to impair treaty (and aboriginal) rights generally by virtue of provincial powers found in Constitution Act, 1867.
This second question – the extent of provincial authority as of Confederation - is of particular importance in British Columbia. In B.C. there is an absence of treaty rights throughout much of the Province. However, aboriginal rights, including aboriginal title to land, continue. A Court decision interpreting Constitution Act, 1867 as providing the Province of British Columbia with authority to impair aboriginal rights, including aboriginal title, would be of major concern to aboriginal peoples. As a result of this concern, legal counsel from Woodward & Company sought and received the Court’s permission to intervene on behalf of the Cowichan Tribes.
The Court reserved its decision after hearing oral argument from First Nations, First Nation organizations, Canada and most Provinces, as well as industry. Judgment on the appeal can be expected sometime in 2014, perhaps even as a companion decision to the forthcoming judgment in the appeal in Tsilhqot’in Nation v. British Columbia, heard in November 2013. We will keep you posted.
Wednesday May 07, 2014
|By Camille Israël
A ruling of the Federal Court of Canada in Pokue v Innu Nation (2014 FC 325) was released on April 3, 2014. The applicant, Simon Pokue, sought judicial review to set aside the results of Innu Nation elections. The Innu Nation moved to strike the application on the basis that the Federal Court has no jurisdiction over the Innu Nation, which is not a band council under the Indian Act, but a not-for-profit organization incorporated under the Canada Corporations Act to represent the Innu people of Newfoundland and Labrador.
The Innu communities of Mushuau and Sheshiatshiu in Newfoundland and Labrador were not recognized as bands under the Indian Act or allotted reserves until 2002. The Innu Nation was established as a not-for-profit in 1976 to fill the gap and carry out certain governance functions on behalf of the Innu, including the negotiation of land claims, providing education, healthcare and social services to the two communities, policing, and regulating trapping and fishing on reserve lands. Innu Nation has negotiated an Agreement in Principle with Canada and the province, and is working towards a final agreement.
The Federal Court’s jurisdiction is limited to reviewing the actions of federal boards, commissions, or other tribunals. While band councils fit within that definition, it was not clear whether an umbrella organization like Innu Nation would also be included. Innu Nation argued that as a not-for-profit, its actions should be subject to corporate law remedies, not judicial review. The Court stated that the legal status of Innu Nation was but one factor to be considered, and that the true legal question was whether the Innu Nation’s elections possessed a public character. The Court found that Innu Nation represented itself as a governing body, acted as such by exercising substantial financial, political and legal control over an identifiable group of people, and had abandoned the standard titles of “president”, “vice-president” and “board of directors” in favour of titles consistent with a public authority, “Grand Chief”, “Deputy Grand Chief” and “Council”. Members of Innu Nation could not be thought of as mere shareholders in a corporation. The Court stated that it would be difficult “to conceive of a power more public in nature than an election of those who will exercise wide and significant powers which directly affect individuals and … the generations that will follow” .
The Innu Nation has announced its intention to appeal the ruling. If it stands, it will affect First Nations in British Columbia, where First Nations have formed not-for-profit and corporate structures to hold land, carry out business, and negotiate in the BC Treaty Process. The ruling potentially opens the door to their structures having their actions and decisions subjected to scrutiny via judicial review. However, the scope of the decision is expressly limited to elections of the Innu Nation, and it likely only extends to similar organizations that carry out governance functions, such as providing services and negotiating final agreements. Corporations set up solely to hold land or carry out business are less likely to be captured.
Wednesday May 07, 2014
Congratulations to Drew Mildon, who was appointed (by acclaim) to the CBA Provincial Council as a Member for Victoria County for a 3-year term.
Thursday Apr 03, 2014
By David M. Robbins
The Supreme Court of Canada’s decision on aboriginal title in the Tsilhqot’in Nation appeal is expected in 2014. It will be of great significance to aboriginal peoples. One important issue in particular the Court may decide upon is whether the division of federal and provincial Crown powers under Constitution Act, 1867 means aboriginal title is immune from a Province’s legislation - in this case, whether Tsilhqot’in Nation aboriginal title is immune from British Columbia’s Forest Act.
Of note, on May 15, 2014 the Supreme Court of Canada is scheduled to hear the Keewatin appeal that stands to raise a very similar question. An issue that may be decided in Keewatin is whether the division of federal and provincial powers under Constitution Act, 1867 means treaty rights are immune from a Province’s legislation - in that case, whether Treaty No. 3 rights are immune from Ontario’s forestry legislation.
In sum, these two appeals overlap as to whether the Provinces have any jurisdiction to infringe the aboriginal and treaty rights of the aboriginal peoples of Canada protected by s. 35 of Constitution Act, 1982. Thus, the Court’s decision in Keewatin may also be of significance to aboriginal peoples in BC, even those with aboriginal rather than treaty rights.
We will keep you posted as the Keewatin case moves forward. On March 26, 2014 the Court granted the Cowichan Tribes, as represented by Woodward & Co., leave to intervene in the appeal. Likewise, the Court granted British Columbia leave to intervene.
Thursday Feb 27, 2014
|On February 26, 2014, the Minister of the Environment, Hon. Leona Aglukkaq, issued a decision statement regarding the New Prosperity Mine in British Columbia's Chilcotin district, concluding that “the New Prosperity Mine project is likely to cause significant adverse environmental effects that cannot be mitigated. The Governor in Council (the cabinet) has determined that those effects are not justified in the circumstances; therefore the project may not proceed.”
Minister’s Press Release: http://www.ceaa-acee.gc.ca/050/document-eng.cfm?document=98459
Decision Statement: http://www.ceaa-acee.gc.ca/050/documents/p63928/98458E.pdf
The Tsilhqot'in National Government responded with a media release, calling on "this to be the end of a costly, pointless battle that has dragged on since at least 1995, when Taseko Mines Ltd. was first told by the federal Department of Fisheries and Oceans not to waste any further time or money pursuing this project."
Monday Jan 13, 2014
|Athabasca Chipewyan First Nation (ACFN) filed a judicial review on January 3, 2014 asking the Federal Court to review Canada’s decision to authorize Shell’s Jackpine Mine Expansion. The decision is the first of its kind made under the controversial Canadian Environmental Assessment Act, 2012 S.C. 2012 c. 19, s. 52.
The federal Minister of Environment determined that Shell’s project is likely to cause significant adverse environmental effects yet Cabinet decided that the project was justified in circumstances. However, Cabinet did not provide any reasons nor explanation at all for why the significant adverse impacts of the project were justified.
In its case filed before the Federal Court, ACFN alleges that Canada breached its duties to consult and accommodate ACFN with respect to Shell’s project and the manner in which the project will impact ACFN’s constitutionally protected section 35 rights. ACFN further alleges that the process, and mitigation offered, was inconsistent with CEAA 2012, the Species at Risk Act, the Migratory Birds Convention Act, as well as several international agreements and conventions to which Canada is a signatory.
Tuesday Jan 07, 2014
Woodward and Company LLP is pleased to announce two new partnerships. David Robbins and Gary Campo joined the firm as partners effective November 1, 2013. Both Mr. Robbins and Mr. Campo have been with the firm for more than thirteen years and have long records of noteable accomplishments. You can read about each on Our Team page.
Congratulations David and Gary!
Friday Dec 20, 2013
Burns Lake, December 19, 2013: Lake Babine Nation was terribly saddened today to learn that the Enbridge Northern Gateway Project Joint Review Panel had recommended the Northern Gateway pipeline for approval.
Lake Babine First Nation is comprised of over 2400 members, making it one of the largest First Nations along the pipeline route. Lake Babine Nation asserts Aboriginal title, fishing rights, and a full range of other harvesting rights to the area that will be affected by the pipeline. The Panel stated that “project effects, in combination with cumulative effects, be found likely to be significant for certain populations of . . . grizzly bear.” Grizzly bear is very important to Lake Babine Nation, as are other big game such as moose.
Lake Babine Nation Chief Wilf Adam: “The JRP process simply isn’t designed to properly consider the full impacts of the pipeline on aboriginal rights, which are protected by the Constitution of Canada. The Federal Government has gutted Canada’s environmental laws and streamlined the environmental assessment process to the detriment of all Canadians, but it has not taken away the constitutional protection given to our aboriginal rights. The JRP recommendations have made it clear to us that we are being forced to go to the courts to protect our aboriginal rights.”
The JRP was not mandated to make any determinations about aboriginal rights, and recommended that Enbridge consult further with aboriginal groups about impacts on their rights.
Says Chief Wilf Adam: “A recommendation to the company to do further consultation with us does nothing to protect our aboriginal rights. It just results in talk. In our view, the horse has been let out of the barn by the JRP and further consultation will not change that.”
Lawyers for Lake Babine Nation say that the court process involves a careful review of the aboriginal culture along with the biology of the affected species. Those factual questions will take time to resolve in court, and have not been adequately dealt with by the JRP, if at all. If necessary, the Lake Babine Nation will seek temporary injunctions against construction to preserve the status quo until the court process has been completed.
Tuesday Nov 19, 2013
Woodward and Company lawyers joined by David Rosenberg Q.C. at the Supreme Court of Canada on November 7, 2013 for the William vs British Columbia hearing.
Front: Dominique Nouvet, David Rosenberg Q.C., Jay Nelson
Rear: David Robbins, Jack Woodward Q.C.
To watch the webcast, follow this link.
Monday Oct 07, 2013
No government in Canada plans to celebrate the 250th anniversary of the founding of our country. On Oct. 7, 2013, one of the oldest continuous written constitutions on the planet reaches a quarter of a millennium. The Royal Proclamation of 1763 — Canada’s founding document — stands for four enduring principles: democracy, the rule of law, fairness for veterans, and protection of aboriginal lands.
RP 1763 was a colonial statute passed by the government of Britain under the Whig (Liberal) Prime Minister George Grenville. Grenville’s government renamed New France, the country that is now Ontario and Quebec, as “Quebec” and went on to “erect” a new government on the English model. No mention of “Canada” yet, the name came along after the country was created. But this is what made Canada a separate country in North America, and it pre-dates the founding of the United States. The much-celebrated constitution of 1867, which chops Canada into provinces (for the second time, because the first attempt at creating provinces in 1791 was abandoned in 1840) is just one of several technical fixes on the basic nation-building of 1763.
Canada’s 250 year old constitution was, in its time, a progressive document from a liberal government in the Age of Enlightenment, in stark contrast to the feudal monarchist colonial regime it displaced. It sets up assemblies and courts to “care for the Liberties and Properties” of the inhabitants and future settlers. This was well prior to the American and French Revolutions.
After establishing the local assemblies and a legal system, the next order of business was to take care of the soldiers and sailors who fought for the Crown against the French. Every private was to get at least 50 acres, and officers would get up to 5,000 acres, depending on their rank. The tradition of rewarding servicemen with grants of land continued in Canada for another 200 years, with the Soldier Settlement Acts and finally the Veterans Land Act following the Second World War. Of all the legacies of RP 1763, this careful attention to the rewarding of veterans is the only one to fall into disuse, and only just recently.
Then came the Proclamation’s famous Indian policy. RP 1763 establishes a huge land reserve of the “Hunting Grounds” of the “Nations or Tribes of Indians” called the “Indian Territories”. No trespassing, survey or sale of those lands was allowed without the consent of the tribes, and consent could only be given at a public meeting in the presence of the Crown. The Indian nations were to be protected from the “Great Frauds and Abuses” of the past by giving the Indians an absolute veto over settlement in their lands. Such transactions were called “treaties” or “surrenders.” This basic policy continues in the Indian Act today — a 250 year policy of preventing sales of Indian lands except through a public vote of the tribal membership, confirmed by the Crown. The result is that most Indian reserves in Canada remain more or less intact, when lands all around them have been sold and re-sold multiple times.
RP 1763 is the origin of treaty-making with First Nations — a process that remains unfinished in British Columbia and parts of the North. The end products of treaties are “treaty rights”, constitutionally protected since 1982, and recently proven to be potent laws for the protection of Canada’s environment. The right to hunt and fish, typically central to every treaty, becomes the right to healthy habitat capable of supporting a meaningful wildlife harvest. Some Canadians are now looking to First Nations with the hope that they will use these treaty rights as a bulwark against dangerously rapid development of resources.
250 years ago Canada was set up to be a democratic country governed by the rule of law, with fair treatment for those who fought wars for her existence, and justice for the indigenous people who made room for the settlers. It was a wise document for its time, establishing the principles that govern Canada to this day. It’s worth celebrating.
Jack Woodward is the author of Native Law, a leading text on aboriginal law in Canada. He practices law in Victoria, BC.
This column was originally published in the National Post.
Friday Oct 04, 2013
As of September 15th, Woodward & Co began operating a small office located on the Tsartlip First Nation reserve. We extend a big thank you to the Paul family for making this happen. Two of the firm’s lawyers – Gary Campo and Leah Mack – spend part of each week at the new office assisting clients.
Boxes are being unpacked and when the team gets settled there will be an open house.
Details will be announced soon here and in the newsletter.
Wednesday Aug 14, 2013
Original Air Date: Monday, July 29, 2013
Alberta Prime Time broadcast a primer on the Beaver Lake Cree Nation's ongoing legal action against Alberta and Canada.
A groundbreaking case will see a 900 member first nation group take the Alberta government to court. With over 300 projects on its traditional land, the Beaver Lake Cree Nation argues it can no longer exercise its constitutionally guaranteed treaty rights to hunt and fish.
The host interviews Drew Mildon from Woodward and Company, and Janice Makokis from Blue Quills First Nations College.
Link to the show: http://www.albertaprimetime.com/Stories.aspx?pd=5404
Tuesday Jul 30, 2013
For twenty years, Taseko Mines Limited (TML) has tried to get approval for a low-grade, open-pit copper and gold mine at Teztan Biny (Fish Lake.) The Prosperity Mine proposal is one of the most contested mining projects in Canada. After a rejection of the project in 2010 by the Federal government, based on a scathing independent panel report describing unprecedented impacts to the environment, and Tsilhqot’in current use, rights and culture, Taseko Mines Ltd. quickly announced it had ‘re-jigged’ the proposal and would re-submit. This new proposal does not have the support of the Tsilhqot’in Nation.
For the first time, a mine proposal once rejected is being reviewed again by a new federal panel, over the objections of local First Nations. This is unprecedented in the history of the federal environmental assessment process.
This is a key test of the new federal environmental assessment process. It is also a test of the court system as Teztan Biny lies within one of the only court-proven Aboriginal rights areas in the country. The Tsilhqot’in Nation v. B.C. (aka William Case) resulted in proven Tsilhqot’in rights to hunt, trap and trade that have not been appealed by Canada or B.C.
New hearings for the revised project began on July 22nd in Williams Lake, B.C. and run to August 23rd.
Wednesday Jun 12, 2013
Woodward and Company LLP is pleased to announce that Heather Mahony and Drew Mildon became partners in the firm as of May 1, 2013. Please join us in congratulating Heather and Drew!
Heather was called to the BC Bar in January 2004; she has been with Woodward and Co. since 2002 when she joined the firm as a co-op student. She is also called in Ontario.
Heather’s current areas of practice include First Nation law development, reserve land management, taxation, economic and commercial development, environmental assessment, specific claims negotiation, and First Nation governance.
Drew began working with W&Co in January 2004 as a coop student and continued on to become legal counsel. He is also a member of the Yukon Bar.
Drew’s areas of practice include: secured transactions, property and income taxation, trusts, and business associations. He is interested in assisting clients to develop policies and structures to separate economic development, as a function of government, from business development, as a commercial activity and balancing these priorities to result in successful corporate outcomes.
Wednesday May 01, 2013
Tuesday, April 30, 2013
Link to judgment: http://www.albertacourts.ab.ca/jdb_new/public/ca/2003-NewTemplate/ca/Civil/2013/2013abca0148.pdf
The Beaver Lake Cree Nation’s claim against the Crown for breaching Treaty 6 is proceeding to trial. The historic, precedent-setting judgment issued in March 2012 has been upheld by the Alberta Court of Appeal.
In a judgment issued today, April 30, 2103, the Court dismissed Alberta and Canada’s appeal of Justice Browne’s decision, stating in its conclusion: “The appeals are therefore dismissed in their entirety. The parties will be well-served by returning to their case management judge for the imposition of a litigation plan to advance this litigation through trial.”
The judgment issued some plainly spoken comments on Canada’s persistence in delaying the case by claiming there isn’t enough evidence to write a statement of defence, saying the band has provided sufficient information and “the demand for particulars should not be permitted to turn into a delaying tactic... Otherwise, litigation will be stonewalled at an early stage through excessive particularization.” It has been almost five years since BLCN commenced their case against the expansion of the tar sands into their traditional territories.
The essence of the BLCN’s claim is that in failing to manage the overall cumulative environmental effects of development on core Traditional Territory, Alberta and Canada have breached the solemn commitment in Treaty 6 that the BLCN could hunt, fish and trap in perpetuity. On March 28, 2012, Alberta Court of Queen’s Bench Justice B.A. Browne rejected Alberta and Canada’s efforts to have the case dismissed as “frivolous”, an “abuse of court process” and “unmanageable.” In a historic first for Canada, the Court instead upheld the right of BLCN to challenge widespread tar sands exploration and extraction based on the cumulative effects these activities may have on the band’s constitutionally protected treaty rights.
In appealing the March judgment, one of the central arguments by the Crown was that the BLCN’s claim was an abuse of process because it challenged over 19,000 authorizations for development in one single claim. It was submitted that instead, the BLCN should have applied to judicially review each authorization. This argument was dismissed. The Court recognized that the BLCN’s claim is based on Treaty rights violation as a result of the cumulative effects of development, not as a result of the effect of each individual development. The Court went on to acknowledge that a claim based on cumulative effects does not require an investigation into each authorization, and through case management, a discernable shape to the litigation will emerge.
Similarly, the Court preserved the BLCN’s request for a court supervised cumulative effects consultation regime in the event the claim is successful. The Court noted that while this remedy is controversial, the current fluidity of the law on this point means that it too cannot be rejected out of hand.
In refraining from overturning the decision of the Chambers Judge, the Court of Appeal also maintained the BLCN’s right to argue at trial that the Crown owes them a fiduciary duty as a result of the Treaty process, and that they have a right to hunt, fish and trap for purposes beyond food.
The traditional territory of BLCN spans an area about the size of Switzerland and produces 560,000 barrels per day, roughly 30% of tar sands’ daily total. Exxon’s Cold Lake project alone produces more than 140,000 barrels per day. Canada, Alberta and oil companies have plans to expand production on Beaver Lake Cree lands to more than 1.6 million barrels daily.
BLCN’s territorial lands are already peppered with approximately 35,000 oil and gas sites, each with a development footprint of 1 hectare (2.5 acres). Traditional hunting and fishing grounds are already criss-crossed by more than 21,700 km of seismic lines, 4,028 km of pipelines and 948 km of roads. With state-sanctioned plans to accelerate the pace of tar sands development, the Beaver Lake Cree have reason to fear that destruction of habitat and wildlife and industrial contamination will mean the end of their ancestral way of life.
The case will now continue through the case management process to advance the litigation through to trial.
Tuesday Apr 16, 2013
On April 11, 2013, the Supreme Court of Canada dismissed two applications for leave to appeal. Both cases involved issues of Crown consultation, and given that the Supreme Court of Canada does not provide reasons when dismissing leave to appeal applications, the aboriginal groups are left wondering whether the applications simply did not meet the ‘national importance’ test for leave, or whether, as a broader policy issue, the court is signaling that it is not interested in hearing consultation cases.
In Athabasca Chipewyan First Nation v. Energy Resources Conservation Board et al., the Athabasca Chipewyan First Nation (ACFN) applied to the Supreme Court of Canada for an order that the tribunal of first instance had a duty to decide whether the Crown had adequately consulted and accommodated ACFN.
By way of background, Shell Canada applied to amend its license to expand the existing Jackpine oil sands mine near Fort McMurray, Alberta. Such an amendment required approval from the provincial Energy Resources Conservation Board (ERCB). It also triggered federal and other provincial crown approvals. The ERCB and the federal Minister of the Environment entered into an agreement to refer the project to a Joint Review Panel charged with performing an environmental assessment of the proposed expansion and determining whether that expansion was in the public interest. The Panel invited all interested parties to give notice of constitutional questions they proposed to raise. ACFN filed a notice questioning whether the provincial and federal Crowns had discharged their constitutional obligations to consult with ACFN. The Panel declined to consider ACFN’s constitutional questions, holding that it did not have jurisdiction to consider whether the Crown had complied with its obligation to consult with aboriginal peoples. This despite governing legislation which clearly stated that the Panel could decide “all questions of constitutional law”, and Supreme Court of Canada decisions that say decisions that are offside of the constitution cannot be in the public interest. The Panel also held that it would be premature to consider whether the Crown had discharged its duty to consult at that stage of the proceedings because Crown lawyers said that their clients intended to consult ACFN in future. Each of the Alberta Court of Appeal and the Supreme Court of Canada dismissed ACFN’s leave to appeal applications: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-l-csc-a/en/item/12982/index.do
ACFN does not believe its rights have been upheld and has vowed to remain vigilant in its quest for justice:
"We are truly disappointed with this decision as we have diligently proceeded through legal avenues to have our rights upheld," Athabasca Chipewyan Chief Allan Adam said in a statement. "We understand that this joint review panel was supposed to uphold everyone's constitutional rights. Why has there been an exception with regards to First Nations’ consultation rights? Government must be held accountable to their treaty obligations."
In Adams Lake Indian Band v. Lieutenant Governor in Council, et al., Adams Lake Indian Band (ALIB) also sought relief on the basis that there was inadequate consultation by the Crown. In 1993, the B.C. provincial government entered into a master development agreement (“MDA”) with Tod Mountain Development Ltd. (now Sun Peaks Resort Corporation) that contemplated an expansion of the ski hill. The MDA permitted purchase of Crown lands within the traditional areas claimed by ALIB. In 2010, the Lieutenant Governor in Council passed an order in council that authorized the issuance of letters patent to create Sun Peaks Mountain Resort Municipality, which came into force June 2010. In July, 2010, ALIB filed a petition with the B.C. Supreme Court for an order quashing the order in council on the basis that government consultation with ALIB had been inadequate. The B.C.S.C. allowed the petition in part and found there was inadequate consultation and ordered the province to conduct further consultation with ALIB. However, the B.C.S.C. did not quash the order in council. The B.C.C.A. allowed the appeal and dismissed the petition and cross-appeal. The Supreme Court of Canada dismissed ALIB’s leave to appeal application: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-l-csc-a/en/item/12972/index.do
Thursday Jan 24, 2013
|By Peter O'Neill
OTTAWA — The Supreme Court of Canada agreed Thursday to hear a key case that's at the centre the decades-long legal fight over aboriginal claims to vast parts of British Columbia.
The case involves the claim by the Tsilhqot'in First Nation to 4,380 square kilometres of territory west of Williams Lake.
The case is considered by legal experts to be the most important aboriginal land case put to Canada's highest court since the 1997 Delgamuukw decision.
That decision, involving the Gitxsan and Wet'suwet'en first nations in B.C., resulted in the court recognizing that aboriginal "title" to land exists. The judges then set out how governments must consult, perhaps compensate, and even get consent to "infringe" on that title through projects such mines, tree harvesting, and road construction. But the court stopped short in 1997 of declaring whether the Gitxsan and Wet'suwet'en had title to the lands being claimed, saying that a new trial would be needed to make that determination.
So far, that new trial has never taken place. Many B.C. first nations have tried to resolve their claims through negotiations, with limited success.
Legal experts say the Supreme Court will likely use the latest case to set out how aboriginal land title can be established.
"It's a huge case. It's Delgamuukw No. 2, in a sense," said University of B.C. law professor Gordon Christie, a specialist in aboriginal law.
Both the B.C. Supreme Court, in 2007, and the B.C. Court of Appeal, in 2012, accepted the Tsilhqot'in claim that they have certain traditional rights to the land. However, both courts differed significantly on how far those rights extend.
B.C. Supreme Court Justice David Vickers delivered a broad interpretation in his 2007 ruling, saying that a nomadic people who used a large area of land periodically over many years had a right to claim title to that land.
That is the basis of First Nations' claims that blanket the entire land mass of the province.
But Vickers, citing a technicality, didn't issue an order granting title.
B.C.'s appeal court rejected the thrust of Vickers' ruling, saying that a title claim must be based on a specific occupancy and intensive and exclusive use of a site.
The law does not "support the idea that title can be proven based on a limited presence in a broad territory," Justice Harvey Groberman wrote for the appeal court.
"I see broad territorial claims to title as antithetical to the goal of reconciliation, which demands that, so far as possible, the traditional rights of first nations be fully respected without placing unnecessary limitations on the sovereignty of the Crown or on the aspirations of all Canadians."
The Tsilhqot'in, in announcing plans to appeal last year, said the decision was "regressive" and would generate uncertainty for all Canadians.
"For us, the Court of Appeal denied the legitimacy of our laws, our ways of life, who we are as Tsilhqot'in people," said Chief Joe Alphonse in a statement Thursday.
"We're grateful to have the opportunity to present to the Supreme Court of Canada a different path to reconciliation," said Alphonse, tribal chairman and chief of Tl'etinqox-t'in community, one of the six nations that make up the Tsilhqot'in First Nation.
Roger William, the plaintiff in the case and a councillor with the Xeni Gwet'in First Nation, said in the joint statement that elders who testified in the original trial and who have since died would be "honoured" by the court's decision Thursday.
UBC's Christie said the Supreme Court of Canada could finally spell out in detail its view of aboriginal title claims.
"The Supreme Court is going to have a chance to actually sit down and say, 'this is what we meant in previous cases, this is how it plays out here.' A lot of questions will be answered."
Read more: http://www.vancouversun.com/news/Supreme+Court+Canada+agrees+hear+native+land+claims+case/7866869/story.html#ixzz2Ja9KrOAX
Monday Dec 10, 2012
Everyone at Woodward and Company LLP
would like to wish you the best of this holiday season
and a joyful, healthy and prosperous New Year.
Tuesday Nov 06, 2012
By Vincent McDermott
After a government review panel for Shell’s proposed Jackpine Mine expansion ruled it could not hear constitutional arguments from the Athabasca Chipewyan First Nation, the band council has filed documents with the Alberta Court of Appeal protesting the decision.
The band, as well as region one of the Métis Nation of Alberta, argue that Shell Canada failed to properly consult the community regarding its oilsands expansion plans, and that the proposed expansion will harm land the band says is culturally and historically significant.
Under Treaty 8 — an 1899 agreement between the Crown and several First Nations groups that is recognized by the Canadian Charter of Rights and Freedoms — Aboriginals in northern Alberta have rights over land use, natural resources and governance.
“The impacts this project will have on our lands and rights is not fully understood or adequately addressed by the Crown,” said ACFN Chief Allan Adam in a statement. “We have exhausted all avenues to have the adequacy of Crown consultation addressed by the panel and we have been left with no other choice but to take this to the courts.”
After the panel ruled it could not hear Constitutional arguments during the hearing, the Métis and the band council requested an adjournment until the Court of Appeal determined the panel’s jurisdiction. That request was also denied.
“If this question isn’t settled and the Alberta Court of Appeal finds the panel had a duty to assess consultation, the validity of the entire panel could be called into question,” Eamon Murphy, a lawyer for the ACFN, told the panel on Monday. “It is in the interest of Shell and the province that this matter be decided before a panel decision is made.”
The ACFN will present their motions before a judge of the Court of Appeal on Friday, Nov. 9 in Edmonton at 9:30 a.m.
Tuesday Oct 30, 2012
|The Canadian Press, Special to Financial Post
Tuesday, Oct. 30, 2012
FORT MCMURRAY, Alta. — An Alberta First Nation want regulatory hearings on Shell’s Jackpine oilsands mine expansion to be adjourned.
The Athabasca Chipewyan First Nation asked the federal-provincial joint panel reviewing the project to halt the hearings while it files a constitutional challenge with the Alberta Court of Appeal.
Last week, the board ruled it didn’t have jurisdiction on questions of constitutional law.
Band lawyer Eamon Murphy said Monday that the exclusion of a ruling on treaty rights call into question any decision made by the panel.
The Alberta government and Shell Canada argued halting the hearing would lead to unfair and lengthy delays.
The panel will rule on the First Nation’s motion to adjourn on Tuesday.
Murphy said if the Appeal Court overturns the panel’s decision to not rule on the First Nation’s constitutional argument, it would “call into question the panel’s findings.”
“And frankly, it’s not in the public interest to have that kind of hearing take place, where decisions may be overturned.”
Murphy said the constitutional argument is relevant because “the panel will be making decisions here which will potentially affect Athabasca Chipewyan First Nation’s constitutionally guaranteed rights.”
The band says Shell’s proposal would disturb 12,719 hectares of land and destroy 21 kilometres of the Muskeg River, which is considered culturally significant.
The hearings on the project, which would increase Shell’s bitumen production by 100,000 barrels a day, come five years after the company originally started the regulatory process.
Wednesday Aug 29, 2012
Woodward and Company LLP is pleased to announce that Leigh Anne Baker has been accepted to serve on the Equality and Diversity Committee of the Canadian Bar Association's BC Branch. The volunteer position is for one year.
The mandate of the Committee is to recommend to, advise and assist the Executive Committee of the CBABC in the implementation of strategies and programs which will assist the Bar to recognize, reflect and promote equality and diversity within CBABC, the profession as a whole and the justice system.
The Committee will promote and encourage the inclusion of members of equality seeking groups in the profession; full access for members of equality seeking groups to the services of the profession, and accommodation of differences.
In promoting “equality and diversity”, the CBABC Equality Committee will seek to address all attitudinal, systemic, and structural barriers. The goal of the Committee and of CBABC is substantive equality, not representational equality.
Tuesday Aug 07, 2012
|By Eamon Murphy
The trial in this matter concerned claimed declarations of Tsilhqot’in Aboriginal title and certain defined Tsilhqot’in Aboriginal rights relating to land in the central region of British Columbia. The trial decision was 473 pages in length and the trial judge, the late Mr. Justice David Vickers, took great pains to ensure that the parties got a full and fair trial. He held court in the winter of 2003 in the heart of the claim area and he also held night sittings of the court to allow Elders to testify about sacred matters that would not otherwise have been available to the Court.
At the conclusion of the trial, the learned trial judge found:
1. The Tsilhqot’in had certain Aboriginal rights including the Aboriginal right to hunt and trap throughout the claim area and earn a moderate livelihood from the exercising of that right.
2. He was of the opinion that Aboriginal title existed to a portion of the claim area (approximately 40%).
3. He could not grant a declaration of Aboriginal title in spite of his opinion because the pleadings, as interpreted, sought title to the entire claim area and accordingly were “all or nothing”. Because Aboriginal title had only been proved for a portion of the claim area, the claim for Aboriginal title failed.
4. If he was wrong on this preliminary issue concerning the pleadings, then his opinion that Aboriginal title existed within the claim area was binding on the parties.
All three parties appealed. On appeal, the Plaintiff Tsilhqot’in claimed that the case was properly pled and accordingly Aboriginal Title should have been declared with respect to the entire Claim Area (as that term was defined by the trial judge). Canada argued that Aboriginal title had not been proved at trial and that the Tsilhqot’in should be prohibited from going back to court to claim title within the claim area. British Columbia argued that the Aboriginal rights found by the trial judge were too broad and could not be upheld on a number of grounds.
Friday Jul 20, 2012
Heather Mahony will be speaking at the Canadian Legal Conference in Vancouver on August 14th on the subject of contracting with First Nations.
The CBA Canadian Legal Conference and Expo is the premiere annual event for legal professionals in Canada. The Conference features outstanding PD programs, sessions and networking opportunities.
This year's conference runs August 12 - 14 in Vancouver, BC.
Alberta Court of Queen's Bench gives green light to a comprehensive constitutional challenge to the tar sands developments
Tuesday Mar 27, 2012
|Edmonton, AB, March 29, 2012 - Almost four years after the Beaver Lake Cree Nation commenced their case against the expansion of the tar sands, the case will go to trial. In a judgment issued on March 28, 2012, Madam Justice B. A. Browne rejected Alberta and Canada’s efforts to have the case dismissed.
In a historic precedent-making decision the Alberta Court of Queen’s Bench has upheld the right of the Treaty First Nations of Alberta to challenge widespread industrial activity including tar sands exploration and extraction, based on the cumulative effects these activities may have on constitutionally protected treaty rights.
Beaver Lake Cree Nation Chief Henry Gladue applauded the ruling, and said: “The treaty is a sacred document for my people and we are very happy that the courts are prepared to back us up when the treaty rights are being abused.”
The Court said that it may have to assume an ongoing supervisory role, in order to ensure that the parties “discuss prospective management of” traditional lands “in terms of regional policies as they affect Aboriginal Treaty Rights in particular areas.” The Court added that “listening” and then “doing what one pleases” does not amount to consultation.
“We’re grateful that the judge recommended the parties talk,” said Chief Gladue. “We have always been ready to talk, and we are pleased that the court may even go so far as to supervise those talks if they go off the rails.”
The case is novel for two reasons. It is the first time the Alberta Court of Queen’s Bench has approved large scale litigation seeking to curtail industrial activity based on treaty rights and secondly it introduces the concept of court-supervised relations between the parties pending final resolution of the trial.
In handing down the judgment, the court dismissed Alberta’s claim that the lawsuit is “unmanageable” and an abuse of process. The court also dismissed Canada’s contention that it should not be named as a defendant. Part of the area subject to the lawsuit is the Cold Lake Air Weapons Range which Canada leases from Alberta.
Also of note, the court left open the possibility of injunctions against the Crown if they fail to curtail harmful activity on treaty lands.
According to BLCN’s legal counsel, Jack Woodward Q.C., “Canada and Alberta are not honouring treaty rights. The simple fact is that the rapid expansion of the tar sands projects makes it impossible for First Nations to hunt and fish – contrary to the solemn promise in the treaty. Canada and Alberta should be forced to live up to their treaty promises.”
Beaver Lake Cree Nation filed its Statement of Claim in May 2008.
Tuesday Feb 21, 2012
|By Pallab Ghosh
Science correspondent, BBC News
European Union officials are expected to vote on draft legislation that would label Canadian fuel as more polluting than oil from other parts of the world.
Oil extracted from "oil sands" is regarded by some as energy intensive and environmentally damaging.
The vote comes as native groups are suing the provincial and federal governments for breaching a treaty designed to preserve their way of life.
Officials are set to vote on the matter on 23 February.
The proposal from the EU's executive would include oil sands - also known as tar sands - in a ranking designed to inform buyers about the most carbon-intensive options.
The oil industry has argued the proposed legislation could create an unreasonable administrative burden.
Canada has some of the largest oil sand reserves in the world and its extraction is making the country and its people wealthy.
But for the people of the Beaver Lake Cree Nation it comes at a cost: their traditional way of life. The Beaver Lake Cree people live in the largest boreal forest in the world, in the province of Alberta.
"It's got to the point where we have to be very cautious about the animals we are taking from the land because it is not uncommon for us to pull a fish out of the lake that has cancers on it," said Crystal Lameman, a member of the community.
"It's not uncommon to kill a moose and go clean it and see that there are pus bubbles under its skin."
Many of their traditional hunting grounds have now been deforested, so they have launched a legal case against the federal and provincial governments for the breach of a treaty which they say guarantees their traditional way of life.
"When you have the development of oil sand deposits, there are vast landscapes that go on for miles that are barren and a lot of big lakes of toxic water that have been used in the process of extracting the oil," said Jack Woodward, the lawyer representing them.
"So what's happening is that the landscape that was used and loved by these people is being transformed into a terrible toxic wilderness."
Crystal Lameman says that because these resources on which her people depended have gone, many now have no choice but to work for the oil sands industry.
"We are unable to go to the land to hunt and forage to pick out berries, to seek out the medicines that are natural to us because of this industry. Therefore we have, not by choice, become economic hostages," she said.
The oil sands industry acknowledges that there have been problems. But improved extraction techniques will mean less environmental damage, according to Drew Zieglgansberger, who is a senior vice President of Cenovus Energy, which is one of the companies involved.
"Just in the last decade alone, we have invested hundreds of millions of dollars into a number of technologies and into research and development," he told BBC News.
"The benefit of that is not only can that bring the energy the world needs and a great economic outcome, but at the same time, by having this investment, the stories that are out there are only going to improve."
Mr Zieglgansberger also said that the industry has provided jobs and a good income for many indigenous people.
But Crystal Lameman says that her traditional ways of living with the land guarantee the future of her children far more than jobs from companies that - in her view - will be gone once they have finished extracting oil.
"If the government and industry think that throwing money at us is going to make this better, I choose life and my children's lives and I choose health over money," she said.
Read more on this from the BBC.
Gitxaala Nation Files Judicial Review Challenging Exclusion from Federal Review of Enbridge Northern Gateway Project
Thursday Feb 09, 2012
|On Monday, February 6, the Gitxaala Nation filed a judicial review application in Federal Court challenging its ongoing exclusion from a non-transparent and critical component of the federal government’s review of the Enbridge Northern Gateway Project. Transport Canada has established a Termpol Review Process to review and assess the Gateway Project’s proposed shipping routes and marine terminal facilities.
A number of government and non-government entities - including the Haisla Nation - are involved in this review process through a specialized committee, but Gitxaala was never invited to participate. Moreover, Transport Canada rejected Gitxaala’s request to be included in the Termpol Review Process.
Under the Enbridge Northern Gateway Project, shipping routes for the oil and condensate tankers would pass through the heart of the Gitxaala’s Territory, including Principe Channel. Gitxaala sustenance, culture, economy, and identity are and have always been deeply rooted in the ocean and marine resources. The proposed heavy tanker traffic and the potential for pollution threaten Gitxaala’s sustainability. An accidental oil spill in or near Gitxaala Territory could be catastrophic for the Gitxaala and their culture.
Gitxaala Chief Elmer Moody explains the impact of the proposed shipping route on his community as follows, “Virtually all Gitxaala, on reserve and off, rely on marine resource harvesting. Marine resource harvesting is in an essential part of our culture. Our culture, spirituality, and governance structure are eternally and profoundly linked to our territory and resources within our territory. The inability to harvest marine resources as a result of increased tanker traffic or an oil spill would cause irreparable harm to Gitxaala. I do not know if our people could ever recover from such damage.”
The central claim in the Application is that Transport Canada is breaching its constitutional duty to consult with the Gitxaala by excluding the Nation from the Termpol Review Process. The Application seeks remedies that would ensure Gitxaala’s meaningful inclusion in that process. Enbridge Northern Gateway has also been named in the Application as a directly affected party.
First Nations push for government to protect woodland caribou; claim Minister has not complied with court order
Wednesday Feb 08, 2012
|For immediate release
February 8, 2012, Victoria, BC - Lawyers from Woodward and Company representing Beaver Lake Cree Nation (BLCN) and Athabasca Chipewyan First Nation (ACFN), and environmental groups filed a reply today to the federal Environment Minister’s failure to explain his decision not to recommend an Emergency Order to protect Woodland Caribou in northeastern Alberta.
On July 28, 2011 Mr. Justice Crampton ordered the Minister to reconsider his refusal to issue an Emergency Order, and this time to take into account treaty rights and the honour of the Crown, and to provide a meaningful explanation, including the evidentiary basis, of his reconsideration.
In the July 2011 judgment, the Court wrote: “… the Minister clearly erred in reaching his decision by failing to take into account the First Nations Applicants’ Treaty Rights and the honour of the Crown in interpreting his mandate under [the federal Species at Risk Act]. . . it is not immediately apparent how, given the foregoing facts, the Minister reasonably could have concluded that there are no imminent threats to the national recovery of boreal caribou.” The Court set aside the Minister’s decision because he failed to adequately explain it.
Almost six months later, the Minister had not publicly issued a reconsideration decision. On January 24, 2012 a motion was filed on behalf of BLCN, ACFN and environmental groups asking the court to impose a very short deadline for the Minister to issue his decision. After the motion was filed, Canada advised that the Minister had in fact reconsidered, and had decided once again not to recommend an emergency order. Canada provided a short summary of the Minister’s decision on February 1.
“We take the position that the Minister has not produced a decision in accordance with the direction of the court, therefore a deadline for compliance with the July order is still required,” explained Jack Woodward. “Mr. Justice Crampton’s decision was clear: the Minister was to provide meaningful reasons that would allow the Court and the Applicants to assess the reasonableness of his decision, and to understand how he could reach a conclusion not to issue an Emergency Order in the face of evidence to the contrary. In particular, the Minister was directed to consider whether his actions and inaction upheld the honour of the Crown and the First Nations Applicant’s treaty rights. In our view, the summary provided by the Minister does not comply with the Court’s direction.”
The two bands and environmental groups now await a decision from the Court.
Friday Dec 23, 2011
|Five Victoria lawyers named Queen's Counsel
By Kim Westad, timescolonist.com
The most eagerly awaited list of the year for lawyers came out Thursday, with 28 lawyers from throughout the province named Queen’s Counsel.
The QC designation is an honour given select lawyers to recognize exceptional merit and contribution to the legal profession.
The attorney general calls for applications in September. An advisory committee vets the submissions and decides who receives the honour. Generally, fewer than 30 QCs are given in a year. The advisory committee includes judges, the president of the B.C. Law Society and the deputy attorney general. The list of appointments usually comes out the week before Christmas.
Five Victoria lawyers were awarded QCs: Mary Mouat, Diane Turner, Diane Heather Raven, Craig Jones and Jack Woodward.
Mouat is a well-respected family law lawyer and mediator and has been a partner with the Quadra Legal Centre for more than 20 years. She was among the legal experts consulted for the province’s recently enacted Family Law Act. Mouat has been involved in numerous volunteer groups and associations, including leading the B.C. Law Foundation in 2009-2010. Although economic times were tough, the foundation maintained stable funding for its grantees, who provide legal services for groups in need.
Turner started her career as a Crown prosecutor in Vancouver and Victoria before moving into private practice where she is active in the international criminal bar. Turner served on the B.C. Task Force on Family Violence Against Women in Relationships and on various committees of the B.C. Law Society. She is an associate faculty member at Royal Roads University and teaches at the Hague University in the Netherlands.
Raven is the University of Victoria’s associate dean of law and a member of the Brokenhead Ojibway First Nation. When appointed associate dean in 2009, Raven was the first aboriginal person to become a senior administrator in a Canadian law faculty. Before teaching, Raven practised employment and labour law in Vancouver. She is active in the community, and has sat on the B.C. Police Commission, the B.C. Public Service Appeal Board, the Canadian Journal of Women and the Law, and the Law Foundation of B.C.
Jones is a provincial government lawyer and is supervising council of the constitutional and administrative law group at the Ministry of the Attorney General. He was most recently counsel for the province in the polygamy reference case to determine whether Canada’s polygamy law is valid. He taught at the University of B.C. and is the author of Theory of Class Actions, a leading Canadian text on the topic.
Woodward practises aboriginal law and has been an instructor and adjunct professor of aboriginal law at UVic for 16 years. He created the university’s first credit course in this field. Woodward is the author of Native Law, a leading text on aboriginal law in Canada.
Nanaimo lawyer Stephen McPhee was also given a QC. McPhee, who practises family law, was recently president of the B.C. branch of the Canadian Bar Association.
Saturday Dec 03, 2011
By Neal Hall
A B.C. Supreme Court judge has granted an injunction to stop exploration at the proposed $3-billion New Prosperity Mine near Williams Lake.
"The ore bed is not going anywhere," Justice Christopher Grauer said during his ruling late Friday.
But he said exploration drilling and road building could affect the environment and the rights of first nations people.
Xeni Gwet'in chief Marilyn Baptiste and others applied for a court injunction to stop exploration work on the proposed mine, which has been in the works for 20 years.
It is considered one of the biggest undeveloped copper and gold sites in Canada.
Baptiste wanted an injunction in place in order to seek a judicial review of the permits allowing the mine development.
Taseko Mines, which is doing the exploration work, filed for a competing injunction to stop Baptiste and others from blockading a road, which prevented workers from getting to the work site.
The judge had to decide what the cost would be to both sides if one or the other injunction were granted.
The judge favoured Baptiste's position, which was that if the environment was degraded further, it would affect the aboriginal rights on the lands.
He said the Crown, which has a duty to consult with aboriginal interests, was caught in the middle.
Taseko's lawyer asked for a 60-day time limit on the injunction, with an order that the judicial review be done on an expedited basis.
The judge granted a 90-day interim injunction, which can be renewed.
The judge also awarded the mining company costs for its injunction application, finding the road blockade was unlawful.
Brian Battison of Taseko Mines said the ruling wasn't unexpected "so there is a slight delay to endure before we get on with our work."
He said a resolution can be achieved if the parties talk to solve the dispute.
Lawyer Jay Nelson, representing Baptiste, said the injunction will give the Crown time to properly negotiate with the Tsilhqot'in First Nation people.
Taseko alleged that Baptiste, and other leaders of the Xeni Gwet'in, one of the six bands that make up the Tsilhqot'in First Nation, were interfering with the company's lawful right to conduct business.
The Xeni Gwet'in were seeking an injunction to stop the miners, alleging that the provincial permits they have are invalid as the Xeni Gwet'in were not consulted by the Crown and accommodated, which is a legal requirement.
Both sides agreed that the court case, which was heard over three days, was pivotal to the competing interests of the parties.
The judgment of Mr. Justice Grauer in Taseko Mines Ltd. v. Phillips is now available on-line:
Friday Dec 02, 2011
|The Tsilhqot'in First Nation has been granted an injunction preventing Taseko Mines from conducting exploration work around its proposed gold and copper mine in B.C.'s central Interior.
In the same court hearing, Taseko failed in its bid for an injunction forcing the First Nation to stop blocking the mine company's access to the site outside of Williams Lake.
B.C. Supreme Court Christopher Grauer has ruled the natives weren't properly consulted on two permits granted to Taseko by the provincial government.
Grauer says the First Nation will suffer greater harm than Taseko if it carries on its work for the proposed New Prosperity mine.
The injunction will be in force until the First Nation can launch a judicial review over the provincial government permits.
Taseko lawyers told the judge that its workers needed to be on the land to prepare for the federal government's environmental review for the massive project, which was initially rejected by the federal government over environmental concerns.
Other media coverage:
Vancouver Sun report: "B.C. court issues injunction to stop exploration at the proposed New Prosperity Mine.
Wednesday Nov 30, 2011
|2011-11-29 21:16 ET - Street Wire
by Mike Caswell
Taseko Mines Ltd.'s case against a group of blockaders continued in the Supreme Court of British Columbia on Tuesday, with Tsilhqotin Nation lawyer Jay Nelson arguing that the B.C. government failed to properly consult the Indians before granting Taseko a work permit. He said that failure was part of a pattern by B.C. that goes back to the province's initial approval of Taseko's Prosperity mine. As he sees it, the province pressed through that approval without waiting for the Tsilhqotin to fully present their views, a problem it repeated with Taseko's present work permit.
Mr. Nelson is arguing for an injunction that will prevent Taseko from working at Prosperity until after a judicial review of the company's work permits is complete. His argument is one of two that the judge must consider, with the other being an application by Taseko for an injunction against a roadblock that kept the company from accessing the site on Nov. 12, 2011.
The dispute stems from work that Taseko is trying to perform as part of its second attempt at getting the Prosperity mine approved. The project, which the company touts as being able to provide 71,000 jobs over its 23-year life, stalled last year after the federal Ministry of Environment refused to give it the go-ahead, even after it received clearance from B.C. Taseko has since modified its proposal, removing a contentious plan to drain a small body of water called Fish Lake. It still, however, faces opposition from local Indians.
Mr. Nelson took the entire day Tuesday presenting his arguments on behalf of the Tsilhqotin, explaining to the judge the failures of the Ministry of Energy and Mines to properly consult his clients before issuing the work permit. One of the issues, as he sees it, is that the provincial government did not recognize the views of the Tsilhqotin Nation in the initial application to build a mine at Prosperity. In December, 2009, B.C. found that the impact of the mine on the environment would be negligible.
In making those findings, the province failed to consider the importance of the lands to the Tsilhqotin Nation, Mr. Nelson argued. It did not attend any of the meetings that the federal panel held, during which the Indians presented most of their material. The result of the federal hearings was the finding that the Tsilhqotin Indians have a "spiritual connection" to the area around the mine, which they call Nabas. The federal panel heard all manner of evidence. It included people who testified that medicine from the area was powerful and small children who simulated the death of fish by taping figures to their heads and flopping on the ground.
The province's approach, which was not done by an independent panel like the federal model, resulted in the flawed finding that the mine would have minimal effects on the Tsilhqotin, Mr. Nelson argued. The government simply looked at the number of lakes in the area, of which there are more than 20, and found that losing one would be minimal. It took the same approach to hunting, finding that the mine would affect about 3 per cent of the area available to the Tsilhqotin.
Moreover, the provincial approach failed to appreciate the cultural importance of the region, Mr. Nelson contended. The assertion that the Indians can go elsewhere for their ceremonies does not work, given the amount of logging and ranching in the area. "Essentially, there isn't a whole lot of elsewhere," he said.
Mr. Nelson further contended that the province failed to take into account the impact of 20 years of exploration on the area when it issued Taseko's work permit. "At some point you have to look at what is the effect of repeating this work," he said. He pointed out that reclamation, or returning the ground to its original condition, does not return the land to a pristine state. "When you cut those trees down, they're gone," he told the court.
Another problem, as Mr. Nelson sees it, is the government's failure to communicate its decisions regarding Taseko's most recent work permit in a timely manner. Going through a series of letters between the Tsilhqotin Nation and the Ministry of Energy and Mines, he contended that the government did not notify the Tsilhqotin that it had approved the work permit until weeks before Taseko was to start work. The Tsilhqotin, in response, demanded the rationale for the decision and requested a meeting. The government replied by regular mail, unlike earlier communications which were via e-mail, and the message arrived so late that nobody read it until after the roadblock. The net result of this was to exacerbate the conflict on ground, Mr. Nelson said.
Finally, Mr. Nelson argued that there was no indication Taseko would suffer irreparable harm if the work was delayed to allow a judicial review of its permit. While the company contends that it is losing $10,000 per day in standby time, there is no evidence to substantiate that claim, he said. Moreover, the company was on notice before it attempted to access the property that there was an outstanding dispute with the Tsilhqotin.
Even if the company is suffering some harm, the judge should consider that the Indians could suffer irreparable harm as well if the company goes ahead. Their application for a judicial review of the work permit would be moot, depriving them of access to justice, according to Mr. Nelson. There is no dollar amount that could compensate them for this, he told the court.
The hearing resumes Wednesday.
Tuesday Nov 29, 2011
|VANCOUVER - An angry dispute over a proposed massive gold and copper mine in B.C.'s central Interior has set off duelling requests for court injunctions against the opponents.
But the chief of the Tsilhoqot'in First Nation said Monday the court process may only be the spark that ignites a much larger confrontation against the New Prosperity Mine.
Taseko Mines (TSX:TKO) wants an injunction and enforcement order against the band, while the First Nation wants the court to keep the mining firm out of its territory.
Taseko's lawyer Joan Young told the B.C. Supreme Court that the natives have taken the law into their own hands and obstructed a public road.
The company has 12 months to complete the necessary work at the site needed for a second federal government environmental process, but the natives are refusing to allow them onto the land to do the work, said Young.
Tsilhoqot'in lawyer Jay Nelson told Justice Christopher Grauer that the band wants the injunction preventing Taseko from working on the land until the B.C. Appeal Court rules on the band's case involving aboriginal title in certain claim areas.
"There are fundamental constitutional rights at stake and reconciliation with aboriginal people is at stake," Nelson told the court.
The B.C. Appeal Court reserved its decision late last year on the case and set no time for releasing its ruling.
Tsilhoqot'in Chief Marilyn Baptiste said the B.C. government simply rubber stamped Taseko's permits and licences for the mine, without consulting with them as required.
"We're not the ones making the choice to go to the ground. We're not the ones making the choice to roadblock," she told the media outside the courthouse.
"It's the government and industry that are pushing us to stand up on the ground and protect our way of life and our people."
As a handful of people carrying protest placards stood by in support, Baptiste told reporters the court application is asking to keep the company off band lands to protect their territory.
The mine has a controversial history. The proposal for the $1.1 billion mine near Williams Lake was approved by the B.C. government, but was rejected in a federal government environmental review last year.
Earlier this month, the federal government agreed to hear a second environmental review after Taseko reworked the project, planned to spend an extra $300 million to address environmental concerns and promised to save Fish Lake, which the natives say is culturally significant to them.
The decision to give the mine a second chance angered several First Nations groups.
Chief Bob Chamberlin of the Union of B.C. Indian Chiefs stood beside Baptiste outside the courthouse Monday.
He said the union will call on its membership to support the Chilcoutin natives in whatever decision is made to protect their territories.
"If that's a road block, then it's a road block. If it's a sit-in somewhere, then it's a sit-in somewhere," Chamberlin said. "But we want them to know that they're not standing alone, and that's the message I want the government to know."
Tuesday Nov 01, 2011
Join one of Canada's most experienced firms in Aboriginal law for a series
of high quality, low cost workshops on law and governance issues.
Harvest Time: From Consultation to Impact Benefit Agreements
Topics to be covered:
December 2, 2011
9am - 4pm
Council of Yukon First Nations
2166 2nd Avenue, Whitehorse
$30, lunch included
Register by November 25th, 2011
BY PHONE: 250.383.2356
BY FAX: 250.380.6560
BY EMAIL: email@example.com
Wednesday Sep 14, 2011
|Woodward and Co LLP expands service in Yukon
Woodward and Company LLP is opening a new office this month to serve Yukon First Nations. The office is located at: 2nd floor - 3059 3rd Avenue, Whitehorse, Yukon.
And W&Co is pleased to announce that Shaunagh Stikeman will run the new office. Shaunagh was called to the BC Bar in March 2009 and joined the Yukon Bar this September. Shaunagh has a BA (honours) in Womens Studies and Political Science (McGill University), with an emphasis on international development. Shaunagh received her LLB at the University of Victoria, where she focused on aboriginal law, human rights and constitutional law. Shaunagh is bilingual in English and French.
Please join us at an open house to celebrate our new offices in Whitehorse, Yukon!
Wednesday, September 21, 2011
Between 2 pm and 6 pm
2nd Floor - 3059 3rd Avenue, Whitehorse
WOODWARD & COMPANY LLP YUKON OFFICES
2nd Floor, 3059 3rd Avenue
Whitehorse, YT Y1A 1E2
Phone/Fax: (867) 633-5940
Thursday Aug 11, 2011
Byline: Kelly Cryderman
CALGARY — He's likely Britain's most famous crusading lawyer, a barrister who represented both the families of protesters killed on Bloody Sunday in Northern Ireland and billionaire Mohamed Al Fayed at the inquest into the deaths of his son Dodi and Diana, Princess of Wales.
But the Alberta Court of Queen's Bench this summer has prevented English civil rights lawyer Michael Mansfield from representing the small Beaver Lake Cree Nation in their treaty case against the growth of oilsands operations in the province.
"I cannot speak in court," Mansfield, 69, said in a telephone interview on Wednesday. "This is a highly politicized case. There's a lot at stake for a lot of people."
In the arguments that led to the decision in June to prevent Mansfield from appearing in Alberta courtrooms, provincial and federal lawyers — alongside the province's law society — said the laws here clearly state that foreign lawyers are not allowed to argue cases pertaining to Canadian laws.
Don Thompson, executive director of the Law Society of Alberta, said it's simply a matter of keeping standards in place to protect the public. Lawyers need to be qualified to practise here.
It wouldn't be allowed, he said, "if someone wants to come in and say 'I want to be a neurosurgeon, because somebody (in Alberta) needs neurosurgery.' "
The main treaty case originated in May 2008, when the Beaver Lake Cree Nation, located near Lac La Biche, filed a lawsuit alleging that oilsands development is overtaking their traditional hunting and fishing territories. The terms of Treaty 6 saw First Nations living in what is now the central areas of Alberta and Saskatchewan sign over their lands in exchange for supplies, payments, reserve lands, and the right to pursue hunting and fishing as they had before the treaty.
Jack Woodward, the Victoria-based First Nations lawyer also representing the band on the case, argues there's enough leeway in the law to allow a foreign lawyer to work here.
He noted Mansfield is an expert in the British legal system, on which English Canada's system is built. He also said the cash-strapped First Nation of less than 500 people has the right to the lawyer of its choice, and needs all the help it can get.
"I had no idea that both Canada and Alberta would so vigorously oppose this British lawyer — he's an eminent British barrister," Woodward said. "It's embarrassing and shocking . . . They're fighting the case in a petty, technical way."
Woodward is now appealing the Mansfield decision. But that appeal is not likely to go ahead before the case returns to court in Edmonton on Oct. 17th.
Read the rest of the article....
Friday Jul 29, 2011
First Nations respond to victory in Federal Court caribou case
Court finds federal environment Minister acted unlawfully in refusing to recommend emergency order for woodland caribou
July 29, 2011 – Victoria, BC - Athabasca Chipewyan First Nation, Beaver Lake Cree Nation and Enoch Cree Nation received a favourable judgment from the Federal Court of Canada late yesterday afternoon.
Mr. Justice Paul Crampton held that federal environment Minister Peter Kent “clearly erred” in refusing to recommend an emergency order for boreal caribou in northeastern Alberta. The Court wrote: “… the Minister clearly erred in reaching his decision by failing to take into account the First Nations Applicants’ Treaty Rights and the honour of the Crown in interpreting his mandate under [the federal Species at Risk Act].”
The Court set aside (or overturned) the Minister’s decision, and sent the matter back to the Minister for reconsideration in light of the Court’s reasons.
The Court noted the federal government’s various concessions in the case, including that: caribou are threatened by habitat loss; all 13 herds of caribou in Alberta are at elevated risk of local extinction (largely because of industrial development in their habitat); the population and habitat conditions of all the herds in northeastern Alberta are “insufficient for those herds to be self sustaining”; there is a developing gap in caribou distribution in Canada centred around northeastern Alberta (the area of intensive tar sands activity); and Alberta’s failure to protect caribou will likely have consequences for the national population of the species.
The Court then went on to say: “I acknowledge that it is not immediately apparent how, given the foregoing facts, the Minister reasonably could have concluded that there are no imminent threats to the national recovery of boreal caribou.” (See paragraphs 48-49 of the judgment.)
The federal government conceded in the Court case that it was more than four years past the mandatory statutory deadline for completing a recovery strategy for boreal caribou. Further relief may follow from the Federal Court if the environment Minister does not complete a proposed recovery strategy by September 1st of this year.
"As for what this Court decision means, this is a very useful step towards protecting caribou in northeastern Alberta and towards respecting First Nations' rights in the area,” said lawyer Jack Woodward, counsel for the First Nations Groups. “But we'll have to see what the environment Minister does in response to the case: the ball is now back in his court."
“We’re pleased the court recognized the importance of the Species at Risk Act,” stated Ron Lameman, advisor to Beaver Lake Cree Nation Chief and Council. “And in issuing this judgement has required the federal environment minister to properly reconsider the looming crisis for the woodland caribou – an animal vital to our livelihood.”
Mr. Justice Crampton's judgment can be read here.
Thursday Jul 28, 2011
After more than two years in development, Tsartlip Chief Wayne Morris has signed a deal on behalf of Tsartlip First Nation to lease approximately five acres of land to Peninsula Co-op to build a grocery store, retail centre and gas bar. The new store with auxiliary rental units and gas bar will be built near the corner of Gowdy Road and Stelly’s X Road.
This project came about after the Peninsula Co-op ran into problems with an application to build its new store in a different area of Central Saanich. The Co-op board was on the verge of having to move its headquarters out of the area, and was pleased to have the opportunity to join with Tsartlip First Nation in this agreement. The Co-op wanted to keep its new store and offices in the area where they started business 35 years ago.
The interim agreement between the Peninsula Co-op board and Tsartlip First Nation will be ratified by a referendum expected to be held this fall.
Tsartlip First Nation worked with Woodward & Company’s Heather Mahony and Alana DeGrave to finalize the deal, which they see as having many benefits to the whole community, including employment and increased services for the area.
Wednesday Jun 22, 2011
First Nations legal challeng to protect woodland caribou goes to court; case seeks to force federal environment Minister to recommend emergency protection of caribou habitat in tar sands area
June 22, 2011, Edmonton, Alberta – First Nations and environmental groups are in Federal Court today and tomorrow seeking to force the federal government to uphold its legal duty to protect the habitat of the woodland caribou, a threatened species. This legal fight is the latest response to rampant industrial development in northeastern Alberta, including rapidly expanding tar sands developments. The aim is to protect remaining caribou populations from regional extinction.
“The caribou are disappearing,” said Chief Allan Adam of Athabasca Chipewyan. “We have asked the federal government to protect caribou, but nothing has been done. Alberta is also doing nothing to provide meaningful protection. The courts are the only route left to us. We launched this legal action because we are demanding the federal government call an immediate halt to the destruction of our lands, the land that sustains the caribou, our treaty rights and our culture.”
Chief Harry Sharphead of Enoch Cree Nation stated, “Government must act in accordance with what is best for all Canadians and not be driven by the oil industry’s agenda. We have watched the caribou herds dwindle while at the same time pipelines and tar sands infrastructure expand. This must stop.”
You can also read the reply argument from the three First Nations: Applicant's Reply Submission.
Protecting Alberta's Caribou - a backgrounder
Tuesday May 31, 2011
Woodward & Company LLP's Jack Woodward is quoted
As part of its ongoing support for the Beaver Lake Cree Nation's legal action to stop the expansion of the tar sands into their traditional territories, the UK-based Cooperative Bank has produced a short film that explains what the tar sands are and why the BLCN is fighting it with the help of Woodward and Company.
The five-minute film is now on YouTube and can be watched by clicking on this link.
Within the film, the band's legal counsel Jack Woodward states that the lawsuit is about the expansion of the tar sands, "...the 17-thousand permits that we've listed in our claim. We say if all of those projects go ahead, there will no longer be a meaningful right to hunt and fish."
The Cooperative states that its campaign "aims to stop the exploitation of unconventional fossil fuels, such as tar sands and shale gas."
"Our campaign champions the cause of the Beaver Lake Cree Nation in Alberta, Canada, who are taking on the Albertan and Canadian Governments, and the world's largest oil companies, to stop the expansion of tar sands developments on their lands. Find out more: http://www.co-operative.coop/beaverlakecree"
Wednesday Apr 27, 2011
The Native Courtworker and Counselling Association of B.C. put on a special five-day conference in Vancouver from April 11 to 15th for First Nations, Chiefs, Councils and staff to help broaden knowledge on a variety of important issues.
W&Co’s Gary Campo presented a paper entitled “Reserve Land Interests” on the final day of the conference.
The program covered a wide range of topics including Band Governance, Taxation, Family Law, Treaty Rights and Band Funds.
Key note addresses were given by Mary Ellen Turpel-Lafond, B.C. Representative for Children and Youth and Grand Chief Ed John (Akile Ch’oh), First Nations Summit Task Group and North American Representative to the UN Permanent Forum on Indigenous Issues.
The event wrapped up with a gala dinner honouring Aboriginal people who have contributed to the development of the law in British Columbia, with the Honourable Steven Point, O.B.C., Lieutenant Governor of B.C. as guest speaker.
Organizers hoped that by offering an extensive program, the conference would provide Band Managers/C.E.O.’s, Chief and Council, and Band Committee members with a well rounded general knowledge of Aboriginal people and the law, and lay the foundation for those attending to address issues affecting First Nations and First Nations people.
Monday Mar 21, 2011
OTTAWA, ONTARIO--(Marketwire - Jan. 31, 2011) - The Honourable John Duncan, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Metis and Non-Status Indians announced today that the Gender Equity in Indian Registration Act (Bill C-3) comes into force on January 31, 2011, and that applications for registration will be accepted and processed as of that date.
"By passing this legislation to amend the Indian Act, the government has eliminated specific barriers of discrimination for particular individuals," said the Minister. "Bill C-3 ensures that eligible grandchildren of women who lost status as a result of marrying non-Indian men are entitled to registration."
Individuals who want to register will have to submit an application on or after January 31, 2011 and must meet all three criteria:
-- Their grandmother lost her Indian status as a result of marrying a non-Indian;
-- One of their parents was registered, or were entitled to be registered, under sub-section 6(2) of the Indian Act;
-- They or their siblings were born on or after September 4,1951.
Individuals may seek legal advice on their own situation. Once registered, applicants will have access to federal benefits and services for registered Indians.
Information on the registration process as well as general information on the Gender Equity in Indian Registration Act can be found on INAC's website at: www.inac-ainc.gc.ca.
This legislation amends provisions of the Indian Act that the Court of Appeal for British Columbia found to be unconstitutional in the case of McIvor v. Canada.
This release and further information on Bill C-3 can be found on INAC's website.
Office of the Honourable John Duncan
Indian and Northern Affairs Canada
Thursday Mar 03, 2011
Given the threat they pose to regional water and air quality and their especially heavy carbon footprint, the tar sands mines have attracted the ire of a broad range of environmental groups. ForestEthics has worked to get retailers such as Whole Foods to boycott oil derived from tar sands. Greenpeace activists, using their signature stunts, have on several occasions briefly shut down mines with occupations. Environmental Defence-Canada has churned out a raft of studies and the Natural Resources Defense Council has lobbied officials at the highest levels.
Yet when the British Co-operative Bank was looking for a tar sands initiative to throw its financial support behind, it was a legal challenge against the governments of Canada and Alberta by the Beaver Lake Cree – a First Nations band of just 900 people – that caught its eye. Colin Baines, a spokesperson for the bank – which bills itself as Britain’s ethical financial choice – believes the Beaver Lake Cree’s lawsuit is “one of the last and best hopes” of stopping tar sands expansion. “This is a solid case with every chance of success,” Baines says.
The band’s case against the tar sands depends on a treaty that its ancestors signed in 1876 ceding large areas of land to the Crown in exchange for moving to a reserve. In return, members of the Alberta tribe were guaranteed the right to earn their livelihood by continued hunting and fishing on the land they surrendered. Now, the tribe says that the tar sands developments are ruining their hunting and fishing grounds and therefore violating their treaty rights as guaranteed under the Canadian constitution.
Traditional ways are still part of the lives of the Beaver Lake Cree. Families go out in the summer to gather wild raspberries, strawberries, and medicinal plants. In the fall they hunt moose, elk, and caribou. “A lot of our people here are very poor,” says Ron Lameman, advisor to the band chief. “They use the abilities to hunt, fish, trap, and gather as a way to supplement their income.”
Lately, the tribe’s hunters have had trouble finding the wildlife that used to be plentiful. “So much has changed in the last couple of decades and our people are very concerned that the places where they go to hunt and gather are disappearing,” Lameman says. A study commissioned by the band found that woodland caribou in the area had declined by 70 percent over the past 14 years, in part due to the habitat fragmentation caused by development.
The Cree’s civil lawsuit, filed in May 2008, lists the more than 15,000 approved or proposed oil developments on their traditional lands as a violation of their treaty rights. They say the “scale and scope” of the industrialization is ruining the “harvestable surplus” that was guaranteed them more than 100 years ago. The band says it plans to take its lawsuit against the government all the way to the Supreme Court of Canada.
The Co-op bank, through its corporate social responsibility program, has donated over $400,000 to the tribe to help meet legal costs. While the bank is also supporting other initiatives against the tar sands, Baines says that the Beaver Lake Cree’s legal campaign is particularly strategic. One third of tar sands projects already underway are on aboriginal groups’ traditional territories, and the number of developments is set to triple.
“If the case is upheld, it would put a stop to a great deal of the expansions that are going to take place,” Baines says. “For these constitutional rights to have any meaning you can’t destroy the forest and the trees and poison the water.”
In Canada’s current political climate – where expansion of the oil and gas sector is a top priority of the right-of-center government – the band’s legal challenge may be the only way to stop the tar sands juggernaut. “[As environmentalists] we have very few tools at our disposal,” says Jack Woodward, the Victoria lawyer handling the case. “Protests and putting up billboards – these are not going to stop it. The national and the provincial governments are enthusiastic proponents of expanding the tar sands so you’re not going to get any political change. What we need is a fully effective legal mechanism.”
The Beaver Lake Cree’s case faces fierce opposition from the oil companies and is expected to take years to make its way through the court system. If the band succeeds, it will have been instrumental in putting a stop to one of the worst environmental catastrophes on the planet. And it will mark a major victory for the sovereignty of aboriginal people in Canada. “Although those rights seem old-fashioned and quaint,” Woodward says, “they do have constitutional protection, which means they must be protected. And they are a higher priority under Canadian law than extracting oil and gas.”
Monday Jan 24, 2011
On Friday, January 21st, four of Woodward and Company LLP's legal team were called to the Alberta Bar. Jenny Biem, Berry Hykin, Jay Nelson and Sean Nixon are now called and can practice in both Alberta and British Columbia. Congratulations to all!
Monday Jan 24, 2011
Woodward & Company LLP has filed a judicial review application on behalf of the K'ómoks First Nation. The review challenges the decision of the Department of Fisheries and Oceans (DFO) to issue hundreds of aquaculture licenses in K'ómoks territory without any significant consultation.
DFO is stating that they were required to issue the licenses as a result of the in the case of Morton v. British Columbia (Agriculture and Lands), 2009 BCSC 136 which stated that the provincial government does not have constitutional authority to issue aquaculture licenses. However, K'ómoks points out that DFO had months to consult and did not do so. DFO did not even send copies of the licenses to K'ómoks for review before issuing them.
K'ómoks has managed and used marine resources in its territory since time immemorial. The licenses and related tenures represent significant potential infringements to K'ómoks' aboriginal rights and title.
Monday Dec 13, 2010
Less than two months after the chief of Beaver Lake Cree Nation filed a motion in Federal court to halt new oil and gas developments on their traditional territory, oil giants BP and Husky Energy announced a plan to do just that.
APTN's national news correspondent Noemi LoPinto interviewed Jack Woodward and Chief Al Lameman for this report.
Tuesday Nov 30, 2010
|Chief and the Cree Nation remain firm in stand against tar sands expansion
Lac La Biche, Alberta, November 30, 2010 – Beaver Lake Cree Nation Chief Alphonse Lameman expressed his disappointment and sadness at hearing of negative and belittling comments made by Calgary lawyer and author Ezra Levant at a recent public debate hosted by the Wilderness Committee in Vancouver, BC on November 18, 2010.
In an exchange about the impact of tar sands development on First Nations in the region, Mr. Levant made several disparaging and insulting comments directed at Chief Lameman and at First Nations people generally.
Wednesday Nov 17, 2010
Xeni Gweti'in Elders arrive each day early to drum before entering the court room with the legal team from Woodward and Company, Xeni Gwet'in chief Marilyn Baptiste and former chief Roger William.
The start of day three of the appeal.
The legal team: Jack Woodward, Pat Hutchings, David Rosenberg, Jay Nelson and Paul Rosenberg. Standing in front are two elders from the Xeni Gwet'in community.
Several members of the Xeni Gwet'in First Nation attend each day to be present for the appeal proceedings.
Monday Nov 15, 2010
Tsilhqot'in Chiefs and former Chief Roger William, members of the Woodward & Company LLP legal team and other First Nations representatives are greeted by members of the Musqueam band and drummers prior to the start of the appeal.
Photos taken on the steps outside BC Court of Appeal. Courtesy of Union of BC Indian Chiefs - www.ubcic.bc.ca
APTN's Rob Smith reported on the first day of the rights and title appeal, and did interviews with Jack Woodward and former chief Roger William. The story can be found by scrolling through the story list on the right.
Tuesday Nov 02, 2010
Government of Canada Announces Decisions on Mount Milligan and Prosperity Gold-Copper Mines
OTTAWA, Ont. -- November 2, 2010 -- The Government of Canada today announced decisions on two gold-copper mine project proposals in British Columbia. The proposal for the Mount Milligan mine, near Prince George, has been granted federal authorizations to proceed. However, the Prosperity mine project as proposed, near Williams Lake, cannot be granted federal authorizations to proceed due to concerns about the significant adverse environmental effects of the project.
"The Government has considered both projects carefully, particularly their environmental impacts," said Environment Minister, Jim Prentice. "We believe in balancing resource stewardship with economic development. The Mount Milligan project has been designed in a way that minimizes impacts to the environment, while the significant adverse environmental effects of the Prosperity project cannot be justified as it is currently proposed."
The Mount Milligan project underwent environmental assessments under provincial legislation and the Canadian Environmental Assessment Act (CEAA). The CEAA process involved the conduct of a comprehensive study. Both environmental assessments determined that, with the implementation of appropriate mitigation measures, the project is not likely to cause significant adverse environmental effects.
The Prosperity project has also undergone a thorough review process, including an environmental assessment by the province of British Columbia and a Federal Review Panel under the Canadian Environmental Assessment Act. In making its decision, the Government of Canada took into consideration the conclusions of the report of the Federal Review Panel, and agreed with the Panel's conclusions about the environmental impacts of the project.
[Backgrounder - 2010-11-02]
[Backgrounder - 2010-11-02]
For more information, please see the attached backgrounder or contact:
Office of the Minister of the Environment
Thursday Oct 21, 2010
|By Erin Hitchcock
The BC Court of Appeal will hear appeals on the Xeni Gwet’in rights and title case from the Tsilhqot’in Nation and the provincial and federal governments in Vancouver Nov. 15.
In November 2007, after 15 years before the courts, Justice David Vickers found that Tsilhqot’in chief Roger William had proven aboriginal title to a vast area around the Nemiah trap line.
Justice Vickers said William had proven title to about half of the claim area, but stopped short of declaring aboriginal title, instead encouraging all parties to sit down and negotiate as an alternative to further court proceedings.
The Tsilhqot’in National Government’s lawyer, Jay Nelson of Woodward and Company, says no negotiations have occurred.
“There’s a wide range of issues, but it boils down to basically the Tsilhqot’in are appealing his decision not to grant title to at least the area where he found it was proved and is also arguing he should have found title to all of the claim area, which would include the (Prosperity) mine site,” Nelson says.
“We’ve already proven our aboriginal title and rights in that area of the Xeni Gwet’in,” says Tsi Del Del Chief Percy Guichon. “And we’re appealing that we want rights and title to the whole declaration area, not just a portion of it.”
Nelson says B.C. and Canada both take the position that Vickers was correct not to grant a declaration of title. He says Canada is arguing that the Tsilhqot’in Nation shouldn’t have been given the opportunity to come back to the courts and argue title for other areas within the claim area.
To read the facta for the appeal, go to our Resources page - they are listed under Aboriginal Rights.
Thursday Oct 07, 2010
Friday is the deadline First Nations' counsel has for filing its affidavits in legal action against the federal government for failing to protect endangered woodland caribou herds.
Beaver Lake First Nation Chief Alphonse Lameman filed the legal action Sept. 8 with the Federal Court in Edmonton. The small Cree band from northeastern Alberta is joined in the action by the Athabasca Chipewyan First Nation of Fort Chipewyan and the Enoch Cree First Nation near Edmonton.
The First Nations claim Environment Canada Minister Jim Prentice and his ministry have known about the precipitous decline of the woodland caribou, but have not done anything to protect the species in northeastern Alberta or its habitat.
Ecojustice filed a similar application in the same court on behalf of the Alberta Wilderness Association and the Pembina Institute. The application asks the court to order Prentice to recommend emergency protections for seven caribou herds in northeastern Alberta.
The woodland caribou is listed as a threatened species under Canada's Species at Risk Act.
"Without immediate protection from industrial activities, these herds will disappear," said Barry Robinson, Ecojustice staff lawyer, in a statement. "This application is the next logical step to force some sort of response. We are hopeful that the court will require the minister to do what he is legally required to do: protect a threatened species."
The caribou protection challenge is a parallel case to one the BLFN filed in May 2008: the main constitutional challenge focusing on treaty violations by the Alberta and Canadian governments.
"It's tangential," explained Susan Smitten, director of communications for Woodward & Company, the law firm handling the First Nations' cases.
While Friday is the deadline for the First Nations, the federal government had 60 days after the filing.
"We're expecting a court date as early as January," said Smitten. "These things move along much more quickly."
In July, the three First Nation communities as well as the Chipewyan Prairie Dene First Nation sent a "strongly worded letter" to Prentice and the attorney general via Woodward & Company.
The 14-page document included information from a report released that month by Stan Boutin, described as a leading caribou expert at the University of Alberta. It was Boutin's report that prompted the reaction from the First Nation communities.
His report said woodland caribou are in steep decline in the area because of the cumulative effects of rampant industrial development on caribou habitat, particularly by the oil and gas industry.
Boutin's report said the East Side Athabasca River herd has declined by 71% since 1996 and the Cold Lake Air Weapons Range herd has declined 74% since 1998.
The report cautioned this level of decline is dramatic and is a strong signal that drastic immediate management action is required to keep caribou from disappearing completely in the Alberta traditional territory of the Beaver Lake Cree Nation which includes much of the oilsands region. His recommendations include habitat restoration and full protection of remaining caribou ranges in northeastern Alberta.
In the letter to Prentice, Jack Woodward, Beaver Lake counsel, charges that Prentice and his ministry have known about the woodland caribou's precipitous decline in northeastern Alberta for several years, but to date, has done nothing to protect woodland caribou or their habitat.
All woodland caribou in Alberta were listed as threatened under the Species at Risk Act when it first came into force in 2002. The federal environment minister had a clear statutory duty under that act to prepare a recovery strategy for woodland caribou, he added.
There is still no national recovery strategy for woodland caribou, more than three years after the expiry of the mandatory deadline imposed by SARA — June 2007.
Woodland's letter gave the federal government until Aug. 31 to comply with its mandatory statutory duties. That deadline wasn't met, hence the Sept. 8 filing.
Meanwhile, Woodward was interviewed at length for a special two-hour episode of The Nature of Things scheduled for 8 p.m. Dec. 2 on the CBC, said Smitten. The date coincides with the one-year anniversary of Copenhagen 15.
The show focuses on the downstream effects of the oilsands development and Woodward was interviewed at length for the documentary in regards to the main constitutional challenge.
That challenge came about after the BLFN watched their traditional hunting, trapping and fishing lands rapidly being destroyed by the oil and gas industry, according to Woodward & Company information.
Legal papers filed in the Edmonton Registry by Woodward claim that Alberta and Canada have infringed Beaver Lake's treaty rights by approving oil and gas and other developments throughout the First Nation's core traditional territory.
Rather than file a statement of defence, Smitten said Alberta and Canadian governments have filed a motion to strike.
A court date to hear that motion is currently set for Dec. 6 to 12 in Federal Court in Edmonton.
Wednesday Oct 06, 2010
Indigenous communities hoping to prevent oil companies from further fuel exploration on Canada's tar sands have brought their campaign to the United Kingdom.
They say the oil industry is threatening the survival of ancient habitats, damaging woodland and wildlife.
Russell Trott reports.
VIDEO - Natives fight to protect Canada's tar sands
This report includes clips from Chief Al Lameman, Beaver Lake Cree Nation, and Jack Woodward.
Thursday Sep 09, 2010
|Native groups seek recovery strategy in court
by Elise Stolte
EDMONTON — Three Alberta First Nations are taking the federal government to court to prevent the Alberta's caribou from going "the way of the buffalo."
Using the federal Species At Risk Act, the First Nations hope to force Ottawa to step into what's normally provincial jurisdiction and limit industry access to caribou habitat.
"Without the forests, these animals have very little hope, in fact no hope, of surviving," said Beaver Lake Cree Chief Al Lameman after lawyers filed with the federal court Wednesday.
"We're not going to let it go. Myself, I'm not going to let it go. I don't want to see this noble animal go the way of the buffalo."
Two caribou herds live in the area the Beaver Lake Cree claim as their traditional territory, an area the size of Switzerland bordering Saskatchewan in the centre of the province.
Lawyers expect to call University of Alberta biologist Stan Boutin as an expert witness. In a study published July 5, he found the size of each herd has fallen dramatically in the past 14 years and now just 175 to 275 animals remain.
Read more: http://www.edmontonjournal.com/technology/Alberta First Nations groups threaten legal action over threatened caribou/3495609/story.html#ixzz0z46IRIrT
Others news articles on the same topic:
Global TV Edmonton - Alberta First Nations groups taking legal action over threatened caribou
CP - Court challenge launched to hatl new oilsands development on caribou land
CBC - First Nations take Ottawa to court over caribou
Wednesday Sep 08, 2010
Judicial review demands halt to new tar sands developments
For immediate release
Sept. 8, 2010, Edmonton, Alberta - Some First Nations in north-eastern Alberta have initiated court proceedings to force the federal government to uphold its legal duty to protect the habitat of the woodland caribou, which are now a threatened species. This legal fight to protect Alberta’s remaining caribou populations from regional extinction is the latest response to the expanding tar sands developments.
The judicial review application filed today in the Edmonton Federal Court offices by the Athabasca Chipewyan First Nation, Beaver Lake Cree Nation and Enoch Cree Nation is asking the court to force Canada’s environment minister to prepare a recovery strategy for woodland caribou and to recommend that Cabinet make an emergency order to protect woodland caribou in north-eastern Alberta under the Species at Risk Act (SARA).
Jack Woodward, legal counsel for the applicants, said: “The idea is to protect remaining caribou habitat and introduce a moratorium, to be in effect immediately, on all new developments within those areas when the caribou herds are known to be threatened. Under SARA, the government was required to put a recovery plan in place to protect the animals by 2007 and has failed in its obligation to do that.”
The judicial review is using data from a study completed by Dr. Stan Boutin of the University of Alberta. Dr. Boutin’s report looked specifically at the two caribou herds within the Beaver Lake Cree Nation’s traditional territories and found the herd populations have plummeted by more than 70 per cent in just 12 years. Dr. Boutin concluded that the herds face extirpation by 2025 without immediate habitat protection.
Chief Al Lameman of Beaver Lake Cree Nation said: “It is difficult for me to express the anger I feel at the loss of this noble animal in our territory. Our traditional land is dwindling. We need habitat for our animals like the caribou to ensure there is a healthy surplus. These animals sustain us and as they die our future becomes uncertain. We must act now to take care of Mother Earth.”
Chief Allan Adam of Athabasca Chipewyan said: “We launched this legal action because we are demanding the government call an immediate halt to the destruction of our lands, the land that sustains the caribou. We want a moratorium on all new development within the ranges of the remaining woodland caribou in north east Alberta.”
Ron Lameman, Beaver Lake Cree Nation
Chief Allan Adam, Athabasca Chipewyan First Nation
Sean Nixon or Jack Woodward
Woodward and Company
Caribou JR - Filed Notice of Application
Save the Caribou report
Dr. Stan Boutin's report
Demand letter to Environment Minister Prentice sent July 15, 2010
Tuesday Aug 17, 2010
By Philip Round
A new front has opened up in the campaign to try to stop the proposed Gas 'n' Go station from being built on Comox (Dyke) Road. Yesterday afternoon, a legal petition was served on Comox Valley Regional District on behalf of K'ómoks First Nation Chief Ernie Hardy and all members of the Band. At its heart, it seeks a ruling from the Supreme Court of B.C. to quash the development permit for the gas station, convenience and liquor store.
The new petition follows hot on the heels of the failure of the Sierra Club Comox Valley legal challenge to the development - a move that saddled that organization with tens of thousands of dollars in litigation costs.
The K'omoks Band petitioners are also denouncing the inadequacy of consultation processes with the Band.
The petition was presented to the court office in Victoria by lawyers from Woodward and Company, a company that specializes in helping First Nations clients.
The document seeks a declaration that the regional district board accepts that it "owed a duty to consult with and, if necessary, accommodate the K'ómoks First Nation prior to approving the development permit."
It also wants a declaration that the board accepts it breached its duty by allegedly not fulfilling that responsibility, and further that it also breached its duty of fairness - and procedural fairness - to the K'ómoks people in making its decisions on the development permit.
It is seeking an interim stay on the issue of a separate building permit for the work pending final judicial review of the call to quash the development permit.
To read the full story, please click here.
Thursday Jul 15, 2010
First Nations in north-eastern Alberta call for federal emergency order protecting woodland caribou
No further industrial development anywhere in remaining herd ranges
July 15, 2010 - Beaver Lake Cree Nation, Enoch Cree Nation, Chipewyan Prairie Dene First Nation and Athabasca Chipewyan First Nation are calling on the federal government to issue an emergency order under the federal Species at Risk Act (SARA) protecting the full ranges of woodland caribou in north-eastern Alberta from any further industrial development.
The federal Minister of Environment is more than three years past a mandatory statutory deadline for preparing a recovery strategy for woodland caribou, which are listed as a threatened species under SARA. A recovery strategy is a key step in the conservation of any threatened species, and is required before the federal government can provide long-term protection for the remaining habitat of woodland caribou.
According to a report released today and authored by Dr. Stan Boutin, a leading caribou expert at the University of Alberta, woodland caribou are in steep decline in the area because of the cumulative effects of rampant industrial development on caribou habitat, particularly by the oil and gas industry.
According to Dr. Boutin’s report, the East Side Athabasca River herd has declined by 71% since 1996 while the Cold Lake Air Weapons Range herd has declined 74% since 1998. Dr. Boutin’s report notes that: “This level of decline is dramatic and it is a strong signal that drastic immediate management action is required to keep caribou from disappearing completely” in the Alberta traditional territory of the Beaver Lake Cree Nation. Dr. Boutin’s recommendations include habitat restoration and full protection of remaining caribou ranges in north-eastern Alberta.
Chief Al Lameman of Beaver Lake Cree Nation said: “We are calling on government to immediately halt the destruction of our lands, lands that sustain our caribou and our people. It is difficult for me to express the anger I feel at the loss of this noble animal in our territory. Our traditional land is dwindling. We need habitat for our animals to ensure there is a healthy surplus. These animals sustain us and, as they die, our future becomes uncertain. We must act now to take care of Mother Earth.”
In a strongly-worded letter sent earlier today to environment Minister Jim Prentice, the First Nations give the federal government 45 days to prepare an emergency order protecting caribou in the region.
Jack Woodward, legal counsel for the First Nations in this matter, said: “We feel a request for an emergency order is entirely reasonable, given the sharp decline in caribou and given the federal environment Minister’s ongoing failure to prepare a recovery plan more than three years after expiry of the mandatory deadline. The federal government has tried to justify refusing to act on this obligation with the surprising claim that time is needed to consult with First Nations. With this demand we are making it clear that First Nations are not standing in the way of action – they are demanding immediate emergency protection for the caribou until long-term habitat protection is in place.”
Chief Vern Janvier of the Chipewyan Prairie Dene said: “The extinction of caribou would mean the extinction of our people. The caribou is our sacred animal; it is a measure of our way of life. When the caribou are dying, the land is dying. We see no respect from government for the caribou or for us as humans. The way Alberta is operating, profit for the oil industry is number one, and everything else can be sacrificed.”
Susan Smitten, Director of Communications,
Woodward & Company - 250.383.2356
Ron Lameman, Advisor to Beaver Lake Cree Nation
BLCN office - 780.623.4549
Letter to Federal Environment Minister Jim Prentice from First Nations demanding federal emergency order protecting woodland caribou
Expert report on woodland caribou [Rangifer tarandus caribou] in the Traditional Territory of the Beaver Lake Cree Nation - Dr. Stan Boutin, July 5, 2010
Maps of BLCN territory (oil sands leases & caribou ranges):
PDF copy of this news release is available here.
Note to editors:
The Co-operative Bank in Manchester, UK, which provided funding for Dr. Boutin’s report, issued a press release and copy of the report on July 14, 2010. For more information, visit their website at: http://www.co-operativecampaigns.co.uk/caribou and the bank published a report to coincide that examines the implications for the tar sands industry.
To read the Save the Caribou, Stop the Tar Sands report, click here.
Monday Jul 05, 2010
|Federal Panel report warns of “high magnitude, long term, irreversible” impacts on the environment and on Tsilhqot’in people and culture
July 5, 2010, Williams Lake – The Tsilhqot’in National Government denounces the BC Minister of Mines’ call for federal approval of the proposed Prosperity project in the face of a report from an independent panel warning that the open-pit copper and gold mine would have “significant adverse effects” on the environment and “high magnitude, long term, irreversible” impacts on Tsilhqot’in people and culture.
Provincial Minister Bill Bennett was quoted in Saturday’s Globe and Mail as stating “We frankly would like to see this project happen”. The Mining Association of British Columbia also called for federal approval of the project – on the same day that the federal Panel issued a strongly worded environmental assessment report confirming that the mine would permanently destroy “an important cultural and spiritual area ... currently used by the Tsilhqot'in for traditional purposes”, lead to “long term” impacts on the physical and mental health of the Tsilhqot'in communities, and create “high magnitude, long-term and irreversible” effects on fish and fish habitat that cannot be mitigated.
“The Province and the Mining Association often talk about their so-called commitment to responsible mining”, said Chief Marilyn Baptiste, of the Xeni Gwet’in community of the Tsilhqot’in Nation. “This was an opportunity to walk the talk, and to admit that some projects are unsustainable and should not go forward. The Panel confirmed that this mine would permanently destroy an area that is a place of worship for our people, a cultural school for our children, and a bread basket that has fed our people for centuries. And the very same day, the Minister and the Mining Association are calling for approval of the Project at any cost.”
It is highly unusual for a federal review panel to find that a proposed project will have significant environmental impacts. “When you see these conclusions from a federal Panel, it really sounds the alarm”, said Jay Nelson, a lawyer for the TNG. “In the almost 20 years of federal environmental assessments, covering dozens and dozens of major projects, only two previous Panels have found significant adverse environmental impacts – and in both cases the projects were rejected by the federal government. To put this in perspective, all of the major oil sands projects in northern Alberta have been approved based on findings of no significant adverse impacts on the environment after mitigation.”
“The BC environmental assessment that the mine company is relying on was a rubber-stamp process,” said Chief Joe Alphonse, Tribal Chair of the TNG. “We’re encouraged to see that this independent federal assessment has some integrity. The federal Panel confirmed how important Teztan Biny and Nabas are for the survival of our Tsilhqot’in culture. First Nations everywhere are watching to see how much our cultural survival really means to the government at the end of the day. This is a line that should not be crossed”.
In its report, the federal Panel concluded that the project would result in “significant adverse environmental effects” on fisheries, threatened grizzly bear populations, on First Nations’ traditional use and cultural heritage in the area, and on proven and asserted Aboriginal rights. The Panel confirmed that “the island in Teztan Biny (Fish Lake), which would be destroyed by the mine waste storage area, is a place of spiritual power and healing for the Tsilhqot'in”.
Click here for the CEAA Executive Summary.
Click here for a Backgrounder of highlights and key conclusions from the panel's report.
Watch Blue Gold: The Tsilhqot'in Fight for Teztan Biny.
Click here to read Dr. Marvin Shaffer's economic analysis which found no net benefit to BC.
Wednesday Jun 16, 2010
Tla'Amin (Sliammon) First Nation, provincial and federal government negotiators have reached agreement on a final treaty. Agreement was reached on Wednesday, June 9 in Powell River.
Provisions in the treaty include 8,322 hectares of treaty settlement land, almost $30 million in capital transfers and $7 million for an economic development fund, as well as additional funds for other projects.
Click here to view the map.
In 2009, 25 out of 26 chapters in the final agreement had been completed, with only the fish chapter outstanding. Tla'Amin and federal negotiators resumed talks in March this year on the fish chapter.
Roy Francis, Tla'Amin chief negotiator, said he was disappointed with the fish provisions in the final agreement. However, negotiators realized what Canada offered was as far as it was prepared to go. "We didn't celebrate or cheer," he said. "We weren't happy, but at the end of it we said we were going to roll it up, present it to the community and let the community decide whether this agreement is acceptable or not."
The agreement includes provision for 200 mixed-stock chinook a year, Francis said. "It's a number that we feel really bitter about," he said. "It's not something we like."
There is provision for more chinook as they return to their home streams in Tla'Amin's territory, as well as a treaty right to harvest sockeye, chum and pink for food, social and ceremonial purposes.
Negotiators were shooting for higher numbers, said Denise Smith, Tla'Amin negotiator. "When we look at the analysis in our community and how much fish we get currently under an AFS [Aboriginal Fishery Strategy] agreement, for example, versus what our people want, we think we need more," she said. "The reality is nobody is getting more fish right now. People are just lucky to get fish at all."
There are other provisions in the fish chapter that are beneficial to the community, Smith said, including funds for the Theodosia Roundtable and for a feasibility study to determine if it's possible to introduce sockeye back into Powell Lake. There is also a separate $1 million fish fund slated for enhancement and stewardship activities throughout the territory.
Additionally, there is provision to harvest commercially and any fish caught with commercial licences can be sold or used for food in the community. There is $1.4 million in the agreement to purchase commercial fishing licences.
The 8,322 hectares of treaty settlement lands is four times the amount of existing reserve land. There are parcels of treaty settlement lands on Savary and Texada island and within the City of Powell River boundaries near the airport. The agreement also includes Lund Hotel property.
Francis noted that there is almost 70 kilometres of waterfront in treaty settlement lands.
The agreement that was reached on June 9 is called the negotiators'
understanding. It triggered an approval process, which is starting now.
BC and Canada each have to obtain formal approvals within their respective systems before a formal initialing of the agreement can occur, an event that is expected to happen in September. The initialing triggers the appointment of a ratification committee, with representation from all three parties, that will oversee the community vote.
Francis said the vote might take place in January 2011. "We're going to be asking the community on whether we can accept this final agreement or not," he said. "In doing that, it's comparing what we have under the Indian Act world with what we would have in a treaty world. In my mind, the comparison is very positive for Sliammon."
Smith said the negotiator's mantra throughout the lengthy process was that they could not go to the community with a deal that was worse than what it was under the Indian Act. "The only way first nations are able to access more than the Indian Act is through treaty negotiations," she said. "If we stayed the way we are now, would we be getting more land, more money, more fish? All those things that we think are coming with the treaty will never happen under the Indian Act. Never."
Tla'Amin has been involved in treaty negotiations for 14 years.
Tla'Amin is holding a community meeting on Wednesday, June 23, to provide more information about the final agreement. Representatives from the BC Treaty Commission and federal and provincial negotiators are attending the event.
Two treaties in the BC Treaty Commission process have successfully reached conclusion. Tsawwassen First Nation's treaty became effective April 3, 2009, following ratification by the first nation, BC and Canada. The Maa-nulth First Nations also ratified a final agreement, as well as BC and Canada, but it is not yet implemented.
Friday May 28, 2010
Jay Nelson appeared at the Supreme Court of Canada on May 21 in the Rio Tinto Alcan Inc., et al. v. Carrier Sekani Tribal Council appeal, on behalf of the interveners Duncan’s First Nation and Horse Lake First Nation.
This appeal raises for the first time the question of whether regulatory tribunals have a duty to ensure that the Crown has discharged its consultation duties to First Nations before issuing approvals.
Duncan’s First Nation and Horse Lake First Nation, two First Nations on the frontlines of energy development in Alberta, are affected every day by the decisions of regulatory tribunals approving oil and gas projects, oil sands extractions, pipelines and other development. They intervened before the Supreme Court of Canada in hopes of securing a voice in these regulatory processes that are deciding the future of their lands, their rights and their distinctive cultures.
To view Jay's submission, please click here. His presentation begins at the 5 hour mark.
Friday Apr 23, 2010
By Murray Browne and Drew Mildon
Photo by Ingmar Lee
Provincial government lawyers and officials are typically quick to dismiss the possibility of aboriginal title to foreshore and submerged lands. This attitude is apparently based on an assertion that foreshore and submerged lands are “public” (and therefore controlled by the provincial government) and that First Nations could not possibly have owned or physically occupied foreshore or submerged lands historically.
Despite these assumptions, ownership of foreshore and submerged lands was an integral aspect of the common law historically. Archaeological analysis of First Nation fish weirs and clam gardens provides extensive evidence of title to foreshore and waterlots, both under the common law and the law of aboriginal title. Many First Nations have strong aboriginal rights and title claims to foreshore and waterlot areas, and the provincial government should deal with these claims before proceeding with further privatization.
For the full article, please click here.
Wednesday Apr 21, 2010
The tar sands infrastructure straddles North America, and is fed by finance from all over the world. But its global reach is provoking global resistance.
'Legal action is the only way'
When the ancestors of the Beaver Lake Cree signed a treaty with Canada in 1876, they ceded vast tracts of land in Alberta in exchange for continued rights to hunt, fish and gather plants and medicines, as they had always done. In recent years, the large-scale deforestation, wildlife disturbance and pollution resulting from tar sands developments have been eroding these treaty rights and now threaten the community's traditional way of life.
So in 2008, they launched a legal challenge aimed at halting the wholesale destruction of their ancestral lands. It cites 17,000 infringements by oil companies of the Beaver Lake Cree's constitutionally protected treaty rights and seeks injunctions against new developments.
Chief Al Lameman is determined: "The governments of Canada and Alberta have made a lot of promises to our people and we intend to see those promises kept. Governments and industry ignore our concerns. This is our home. This is where we live. We have a responsibility to our children to see that these lands remain inhabitable. A legal action is the only way to make our voices heard."
This could have huge implications for Shell, BP, ExxonMobil, ConocoPhillips and Total, all of which have actual or planned developments within the Beaver Lake Cree's ancestral lands. But if successful, all new tar sands projects could be brought to a halt. The case, which is financially supported by the Co-operative, is being led by lawyer Jack Woodward. He believes that: "Canada's aboriginal people will be the ones that rescue Canada from international embarrassment and rescue all the people of the world from the worst effects of tar sands exploitation."
Find out more and donate to the Beaver Lake Cree's legal challenge at www.raventrust.com/projects/beaverlakecree.html
For a copy of the article with photo of Chief Al Lameman, please click here.
Thursday Apr 08, 2010
Byline: Erin Hitchcock
Prosperity mine panel hearings continued in Nemiah Valley last Wednesday, with presentations from numerous Xeni Gwet’in Nation members.
At the Xeni Gwet’in Community Band Hall March 31, Sean Nixon, legal counsel for the Tsilhqot’in National Government, told the federal panel reviewing the gold-copper mine project that the central position of the Tsilhqot’in National Government and Xeni Gwet’in Nation is that the mine would cause the permanent destruction of Fish Lake (Teztan Biny) and area, which would cause a “significant cultural loss for the Tsilhqot’in.”
“It would be a significant impact on their current use of the area, on cultural heritage in the area that could not be adequately mitigated through the fish compensation measure,” Nixon said.
If approved by the federal government, Prosperity Mine would be built about 125 kilometres southwest of Williams Lake at Fish Lake (Teztan Biny), which would be drained in order to build the mine.
Grade 5-7 students from the Naghtaneqed Elementary Junior Secondary School performed a play, Saving Fish Lake, for the panel to show how and why they care about Fish Lake.
Grade 9 student Leyton Setah said the mine will wreck his food sources.
“It will wreck our water source and it will wreck our life,” Leyton said. “Our life will be ruined because we wouldn’t be able to hunt our fish and that’s our way of life. Why would you guys do this to us? We never ruined your life.”
Shari Hughson, community health nurse for Nemiah Valley, said the Xeni Gwet’in people are rebuilding their lives and working hard to find a lifestyle that fits their beliefs and goals of self-sufficiency and a connection the land.
“ … The federal government needs to understand that anything they do or allow into this community that does not fit with the Xeni Gwet’in plan for recovery will probably damage the one community that could be the model for traditional First Nation success,” Hughson said.
She added that if the mine were to go through there would be metal health impacts due to the loss of territorial land that was a home to some communities and is a traditional and ongoing source of plants, animals, and fish, and has a historical and archaeological significance with pit houses present and is in a spiritual area.
She said it would “create considerable grief for some community members here.”
It would also, she said, lead to the loss of self-determination and the loss of control of part of their territory that wold have played a role in becoming more self-sufficient.
Alex Lulua said he has been hunting for all of his life and doesn’t know if he will be able to any longer if the mines goes through.
“And I don’t know if I’ll be hunting anymore if those animals get into that tailings pond or that tailings pond does leak and go down the stream into the rivers,” Lulua said, adding that he still lives off the land. He added that medicinal plants, such as Hellebore or “Indian medicine,” grow in the area and cure many sicknesses. “And yet you guys are going to destroy that. You’re going to destroy us too.”
Brian Battison, Taseko’s vice president of corporate affairs, responded to a previous undertaking regarding Mining, Your Future, and said the program is an initiative to help local people qualify for work in mining.
He said five objectives to support that goal include: helping the company meet its current and future employment needs; helping to maximize local employment opportunity, as it helps the company meet its first objective of earning respect, creating opportunity, and delivering value; designing the program using local input; building broad participation in the program; and encouraging First Nations participation in the program.
He noted that Taseko is a mining company and its expertise lies in mine-site operations.
“We are not a social service agency,” he said. “We are a mining company. And the program and the people must meet our needs.”
He said the provincial government, through its revenue sharing program, has pledged to share with local First Nations communities the revenue and mineral tax revenue generated by the mines, including Prosperity Mine.
Susie Setah said her parents taught her at a young age how to live off the land, hunt, fish, gather berries, and collect medicines. Now, as manager of the Charlene Williams Daycare, she teaches children those skills. While showing photos to the panel, Setah said she takes the children to lakes, including Fish Lake, to learn how to hunt and pick acorns and berries.
“And we name the berries in the language so the kids can learn the names,” she added.
Sami-Joe Perry, a Xeni Gwet’in First Nation member, said her grandparents have hunted and camped along Fish Lake long before she was born. “It does not take a scientist to figure out the damage it (Prosperity) will do to the land,” Perry said. “We see our lands as sacred and valuable as it is. We do not look at our trees, minerals, or waters as money. We look at them as Mother Earth’s gifts to help us heal, live and protect.”
April William said mining is hurting her people. “What if I was rich, really rich and I came and bought the mine and took over everything and shut everything down and took your guys’ jobs away, your ability to pay for your mortgage, you car, everything?” William asked. “That’s what you guys are doing towards us, doing that to our land, and we all stand up here trying to show you and trying to make you guys hear us, what our land is to us.”
To read more presentations and to read full transcripts of the hearing proceedings, visit the Canadian Environmental Assessment Agency website. Click Canadian Environmental Agency Registry and type in Prosperity.
Wednesday Mar 24, 2010
Byline: Andrew MacLeod
Taseko Mines Ltd. has failed in its bid to prevent a documentary about the Tsilhqot'in people's connection to Teztan Biny, or Fish Lake, from being shown at a public hearing on a mine proposal southwest of Williams Lake.
The federal review panel this morning dismissed Taseko's motion that last week asked that the film Blue Gold: The Tsilhqot'in Fight for Teztan Biny (Fish Lake) not be shown at the public hearing, said Jay Nelson, a Victoria lawyer acting for the TNG, in an email. “It held that its rules of procedure did not prohibit presenting information in this form,” he said.
A lawyer acting for Taseko did not respond to a message by posting time. The submission to the panel said Blue Gold is a “propaganda film, produced to influence the opinions or behaviour of people, by providing deliberately biased content in an emotional context,” the Tyee reported.
The film's director, Susan Smitten, said she laughed when she heard the company's lawyer had called the film “propaganda.”
“The film's power comes in its authenticity,” she said. It was made as a way to help the Tsilhqot'in people express what the threatened lake means to them, she said. “They come from a position of love.”
Views of Blue Gold tripled the day after Taseko asked that the film be kept out of the hearing, she said. Filmed in two days with a budget under $10,000, it has been watched by people around the world, she said.
The film can be seen on the Hook or on Vimeo. It will be shown during the panel's evening hearings on March 24.
Andrew MacLeod is The Tyee’s Legislative Bureau Chief in Victoria.
To view the film, Blue Gold, click here.
Tuesday Feb 16, 2010
By Marilyn Baptiste and Anne Marie Sam
The recent rush to promote mining as the saviour of the B.C. economy is an understandable, but dangerous and indefensible trend that serves neither British Columbians nor investors.
Yes, The Vancouver Sun's Jan. 26 editorial did at least say there are problems, but its suggested solution was not to deal with the real root issues, but rather that we become more like Chile. It endorsed doing whatever the industry wants.
For the most part, however, coverage has been artificially positive. Simply stating there is a boom and ignoring all the facts does not make a boom. Nor does it increase the chances that there will be one in the foreseeable future.
There is a temptation to use the 2010 Vancouver Olympics spotlight to sell B.C. as an investment magnet, and if this involved delivering a full and balanced message to would-be investors, okay. To send highly misleading messages is quite another matter.
Consider the recent giddy coverage. First there was the Federal Environmental Assessment Review approval of Terrane Metal's proposed Mount Milligan low-grade gold and copper project at Shus Nadloh on Nak'azdli first nation traditional lands. This followed provincial environmental assessment approval, and news coverage made it sound like nothing could stop the mine.
The articles ignored Nak'azdli's news releases, its appeal against the provincial approval (due to be heard in March), and its application for a judicial review of the federal approval.
When main backer Goldcorp announced a day after Nak'azdli filed for a judicial review that it would not exercise its option to partner in Terrane's mine, this story was down-played. Again, no mention was made of the legal challenges.
Interestingly, Goldcorp's CEO stated in a keynote address to last week's AME BC Roundup that one of three things his company looks for is "safe jurisdiction." Legal uncertainty over the future of disputed proposed projects on first nations territorial lands does not offer safe jurisdiction. Nor does it help to manage costs, which was the second factor cited. (High-grade ores was the third.)
Then came coverage of the province's environmental assessment review approval of Taseko Mines Ltd.'s proposed Prosperity Mine on Xeni Gwet'in traditional lands in the heart of Tsilhqot'in National Government territories. This mine would kill the pristine and culturally and ecologically important Fish Lake by turning it into a massive toxic tailing pond. The implication was this mine was a done deal. It was noted the company hopes to start land clearing and road building in the spring.
The facts tell a different story. A separate federal environmental review has yet to be conducted and its hearings are weeks, if not months, away. The Xeni Gwet'in was not part of the provincial review, but is part of the federal one. Meanwhile the Tsilhquot'in has a court case underway to establish fishing rights and protect Fish Lake.
This is surely information with which investors should be provided.
The Sun recently ran a guest column by Gavin Dirom, president and CEO of the Association for Mineral Exploration British Columbia, which again promoted both the above projects as proof that mining is on the way back after 13 years of no major new metals mines being opened in B.C. It did not mention first nations, or the need to work with them to end the uncertainty that plagues the industry in B.C. Nor did it get into environmental impacts, or mention that nearly 1,200 closed or abandoned mines continue to pollute our waters and lands.
Instead it promised a rosy picture of future great wealth and prosperity. The question is, for whom? The $500 billion that Dirom says has been generated by mining over the past 150 years have come from first nations lands and resources that were never ceded through any treaty. What first nations have got out of it is abandoned and polluting mines, and they are worried this could be all they will get out of any future mines in the long term.
First Nations Women Seeking Responsible Mining supports the BC First Nations Mining and Energy Council and other first nations leaders in the struggle to bring urgently needed reform to mining legislation in B.C.
Anne Marie Sam and Chief Marilyn Baptiste are members of BC's First Nations Women Seeking Responsible Mining.
To see the online version in the Vancouver Sun, click here.
For information on the federal (CEAA) environmental review panel hearings, set to begin March 22, 2010 in Williams Lake, BC, please click here. The panel will be deciding whether to allow Taseko Mines Ltd. to proceed with its proposed mine and the total destruction of Teztan Biny (Fish Lake) and surrounding watershed. Please raise your voice against the destruction of our fresh water, for the future of all Canadians.
Wednesday Jan 20, 2010
Jack Woodward, Chief Al Lameman, Alan Bibby and James Hoggan keep issue in the news
Byline: Meghan Howcroft
A large group of Salt Spring Islanders received a wake-up call last Saturday night at the Truth, Trials and Tar Sands event taking place at ArtSpring.
Sponsored by I-SEA, RAVEN (Respecting Aboriginal Values & Environmental Needs) and DeSmogBlog, the evening featured presentations by four Canadians making a difference in the fight against climate change: James Hoggan, PR executive and author of the book Climate Cover-Up; Alan Bibby, a local documentary filmmaker; Jack Woodward, the pre-eminent authority in Aboriginal law; and special guest Chief Al Lameman of the Beaver Lake Cree Nation.
At a time when Canada is mopping up its shame after an embarrassing display of broken promises at the UN climate change conference in Copenhagen, Canadians are at a critical junction when it comes to climate change action. Hoggan got right to the point. "Climate change is a story of public relations and the most widespread mis-information campaign... This is a story about greed and irresponsibility on an epic scale, deception and widespread media manipulation."
For the full article, including comments by Chief Al Lameman and Jack Woodward, please click here.
Wednesday Dec 09, 2009
Jack Woodward is a lawyer representing the Beaver Lake Cree Nation in Lac La Biche. Woodward and the group are arguing that the Cree's constitutionally protected right to hunt and fish on that land has been obstructed by tar sands development in Alberta's North.
Click here for an interview done by CJSW's Joe Burima, plus links to the speech noted below.
On Friday November 27th, an event titled, "Tar Sands on Trial: The Beaver Lake Cree Fight Big Oil to save the Boreal" took place at Calgary's John Dutton Theatre. CJSW News' Sarah Thompson was on hand to record Andrew Nikiforuk's speech.
Jack Woodward's Tar Sands on Trial presentation - part one (MP3 format)
Jack Woodward's Tar Sands on Trial presentation - part two (MP# format)
Wednesday Dec 09, 2009
A special investigative report for EDI Weekly by Derek Armstrong.
A tiny First Nations band, the Beaver Lake Cree Nation, hopes to do what many large, well funded international organizations such as Greenpeace and the Sierra Club would love to accomplish: stop the Alberta tar sands. This impoverished little band of nine hundred is suing the government of Alberta for violating its treaty rights in developing the tar sands. The statement of claim lists more than 12,000 "developments," mostly individual leases granted to oil companies for forestry, road building, laying of seismic lines, drilling and SAGD development. All of these developments, the claim maintains, are infringements of the Beaver Lake Cree Nation's treaty rights and are therefore illegal and unconstitutional.
David and Goliath: remember who won
The fight has just begun, but already has attracted international attention. The Co-operative Bank of Manchester, England (slogan: "Good with money"), has donated about $250,000 so far to help the band in its fight, admitting that the "David versus Goliath" aspect of the case attracted them. Last summer, representatives of the bank attended a First Nations pow wow at Beaver Lake, accompanied by a BBC film crew.
It's a fight that could take years. Drew Mildon, one of the lawyers working on the Beaver Lake claim, points out that the governments of Canada and Alberta have already issued motions to strike the claim and will likely do so many times before it ever goes to court. With both governments ranged against them, the Beaver Lake Cree Nation have few resources with which to fight their claim.
"The tragedy is that First Nations have rights but can't afford to fight for them," Mr. Mildon said.
(In the context of the Copenhagen climate summit)
While Copenhagen focuses on the future, the Beaver Lake Cree Nation's lawsuit highlights the ugly, immediate consequence of unbridled exploitation of the environment. They face the imminent, irrevocable destruction of the land that sustains their way of life. Climate change and CO2 levels hardly matter if their land and livelihood is already lost.
For the full article, please click here.
Thursday Nov 19, 2009
|Byline: Erin Hitchcock
A study prepared for the Tsilhqot’in National Government says Taseko Mines Ltd. underestimated the potential risk of the proposed Prosperity mine to surrounding lakes and rivers. Stratus Consulting concluded in its study that information provided to date “does not permit a reasoned evaluation of potential adverse effects to water quality, water quantity, fish and wildlife under variable conditions.”
As a result, the TNG is concerned about the future of salmon runs.
“This study raises the alarm,” says Xeni Gwet’in Chief Marilyn Baptiste. “As the traditional caretakers of these lands and waters, we have asked the Panel reviewing this project to demand more credible and accurate information from Taseko so we can properly understand the environmental and human health risks that we are facing.”
The report says Taseko’s Environmental Impact Statement (EIS) for the project “vastly underestimate[s] the uncertainties in site water balance.”
The report says Taseko has relied on limited data to predict or prepare for extreme weather events. “After operations, they propose leaving their mine waste in place with no active controls,” the report says.
“One extreme weather event at any point in the future could lead to an uncontrolled release of mine waste, which could have severe adverse consequences for the trout and salmon fishery of the Taseko River.” The TNG says Taseko River flows into the Chilcotin River, which empties into the Fraser River.
Stratus Consulting’s report says that because of the known impacts of hard-rock mining, it is critical that Taseko identifies reasonable potential effects and include short-term and long-term mitigation and management measures and monitoring in its mine proposal.
“This report makes it clear that we cannot rely on Taseko’s own assessment of the potential impacts of its project,” Baptiste says. “Since time immemorial our people have relied on the pristine waters of the Teztan Biny watershed and the Taseko River as a source of life.”
For the full article, please click here.
Thursday Oct 29, 2009
Lawsuit seeks to halt expansion of Athabasca tar sands into Cree territory
Byline: Alex Ross
In May 2008, the Beaver Lake Cree launched a lawsuit against the government of Canada and the province of Alberta to prevent the expansion of the tar sands into their territory, located in Lac La Biche, Alberta. According to the lawsuit, an 1876 treaty between the Cree and Alberta states that, "in exchange for the surrender of land," the Cree have "the right to hunt and fish through the tract surrendered." But development of the tar sands will render the land uninhabitable, the Cree say.
"What this case is about, for the Cree people, is protecting the integrity of their land and protection of the land in which they hunt and fish. And they are guaranteed that right to hunt and fish in their treaty," Jack Woodward told the audience at George Ignatieff Theatre on October 28th at Tar Sands on Trial. The event was sponsored by Environmental Defence.
For the full article by Alex Ross, please click here.
To read Jack Woodward's speech, entitled "Tar Sands on Trial: The Beaver Lake Cree Nation v. The Crown," please click here.
Friday Oct 16, 2009
|The Snuneymuxw First Nation is running out of patience with a bogged-down treaty process that it has been participating in for years.
Murray Browne, an aboriginal rights lawyer from the firm of Woodward & Co who works with Snuneymuxw on treaty and specific claims, said the band agrees with statements from the leadership of the First Nations Summit, which represents dozens of First Nations in the ongoing treaty negotiations, that there is "little light at the end of the tunnel" at this point for the negotiations to be successful.
The deadlock in negotiations revolves around the constitutional status of treaty lands, governance, the co-management of traditional territories and other issues.
George Abbott, B.C.'s Minister of Aboriginal Relations and Reconciliation, said he "appreciates the frustrations" of the First Nations with the slow pace of the negotiations but he expects a "break in the logjam" could come soon.
"We find ourselves at an incredibly fragile and dangerous point in time as many B.C. First Nations attempt to negotiate fair, just and honourable treaties with Canada and B.C.," said Grand Chief Edward John, a spokesman for the First Nations Summit. "Only two agreements have been reached after 16 years of negotiations."
John said that failure for governments to "act now" and reach substantive progress in the treaty negotiations could result in the "dissolution of the treaty process."
Browne said senior levels of government are refusing to negotiate with the Snuneymuxw based on the legalities of the Douglas Treaty, signed in 1854.
"The Snuneymuxw members and their council keep asking why they should have faith in a new treaty when the governments keep violating the Douglas Treaty," he said.
For the full article, please click here.
Monday Sep 21, 2009
|Aboriginal Law Since Delgamuukw was just published by Canada Law Book, with two chapters contributed by Woodward and Company's lawyers.
David Robbins & Jack Woodward co-wrote Chapter 11: “Tsilhqot’in Nation v. British Columbia: A Decade After Delgamuukw." And Murray Browne wrote Chapter17: “The Promise of Delgamuukw and the Reality of Treaty Negotiations in British Columbia.”
Canada Law Book states: “With the Supreme Court of Canada’s 1997 seminal decision in Delgamuukw v. British Columbia, the complexity, nature and substance of Canadian jurisprudence on Aboriginal law continues to rapidly evolve. This text analyzes the major legal developments since Delgamuukw and provides practical guidance for those who work in this quickly changing legal landscape.”
Thursday Aug 27, 2009
|Mining firm promises a new lake, but Tsilhqot'in leader says that's the Creator's job.
"Sports fishers can get slapped by the law for netting a single fish over the limit, yet a large Vancouver-based mining company is proposing to destroy a lake and the tens of thousands of trout that inhabit it."
please click here for more information (PDF file)
Tuesday Aug 18, 2009
|As the price of oil increases again, Canada's tar sands once more look like a giant cash cow to the industry. Now, the only thing standing between the 400 ton bulldozers and rampant environmental destruction may be a small group of First Nations' people...
please click here for more information (PDF file)
Wednesday Jul 01, 2009
|Co-operative Financial Services, a socially responsible investment group, is visiting the Beaver Lake Cree Nation Pow Wow this weekend to make its second sizable donation to Beaver Lake's action against tar sands expansion. Bank officials will tour the tar sands in the air and on the ground to view local impacts. They will be bringing a number of international journalists with them.
A copy of the Pow Wow press package is here in .pdf format.
Wednesday Jul 01, 2009
The Tsilhqot’in Nation is raising its voice in the federal Panel review of Taseko Mines Ltd.’s proposed Prosperity Gold-Copper Mine, which would be located in the heart of its traditional hunting and trapping grounds, and require the complete destruction of a pristine mountain lake (Teztan Biny/Fish Lake) that has been a traditional Tsilhqot’in fishery for centuries. The Panel recently issued a decision agreeing with the Tsilhqot’in Nation’s submissions that Taseko’s Environmental Impact Statement (EIS) for the project is deficient and key information is still required before the Panel can proceed to public hearings. The Panel noted, in particular, that more information is required on the potential impacts of the project on traditional use of the area by First Nations.
The panel's decision is available here.
Thursday Jun 04, 2009
|Jack Woodward and Murray Browne, of Woodward & Company, are among a group of prominent Aboriginal rights and title lawyers who have sent a critical response to the British Columbia Government on its proposed recognition legislation.
Among other issues, the group noted that:
You can download the Commentary here.
Coverage from the Vancouver Sun is available here.
Wednesday Jun 03, 2009
|Murray Browne and Krista Robertson recently co-authored a publication entitled Benefit Sharing Agreements in British Columbia: A Guide for First Nations, Businesses, and Governments.
The Guide was prepared for the Ecosystem-Based Management Working Group, and results from a comprehensive review of Impact Sharing Agreements, also known as Impact Benefits Agreements or Socio-Economic Participation Agreements, in a number of industries operating in BC and elsewhere.
We want to congratulate Krista and Murray on completing this momentous task.
Wednesday Mar 04, 2009
|Woodward & Company traveled to London, England last week with Chief Al Lameman of the Beaver Lake Cree Nation to meet with representatives of the Manchester-based bank Co-operative Financial Services ("CFS"). CFS is a social-goals oriented, membership-driven bank with a progressive economic vision. Last year, they turned their sights on the madness of the Alberta tar sands and this year prepared to launch a campaign against the use and development of unconventional fossil fuels.
As part of their campaign, CFS wanted to help fund the Beaver Lake Cree's efforts to protect the land from the ravages of tar sands development. During the visit to London, Jack Woodward presented on Tar Sands and Traditional Use to Friends of the Earth and People and Planets and lectured at both the London School of Economics and London University. Beaver Lake Cree representatives met with British Members of Parliament to discuss tar sands and climate change and attended a protest in Trafalgar Square before the Canadian Embassy.
please click here for more information (PDF file)
Wednesday May 14, 2008
|Lac La Biche, Alberta, May 14, 2008 - Beaver Lake Cree Nation, a small Cree band from north eastern Alberta, has watched with growing anger and frustration as their traditional hunting, trapping and fishing lands have been rapidly destroyed by the oil and gas industry. They have seen the forests they depend on for their livelihood riddled with oil wells, criss-crossed with roads and seismic lines and emptied of wildlife. They have seen their constitutionally protected rights disregarded and the local environment degraded. And today Beaver Lake Cree Nation says “Enough!”
Beaver Lake has filed a court case aimed at halting the wholesale destruction of their traditional hunting, trapping and fishing areas.
“The Governments of Canada and Alberta have made a lot of promises to our people and we intend to see those promises kept,” said Chief Al Lameman. “Governments and industry ignore our concerns. This is our home. This is where we live. We have a responsibility to our children, and to our children’s children, to see that the lands where the Cree live, and will always live, remain inhabitable.”
Legal papers filed in the Edmonton Registry by BLCN’s legal counsel, Jack Woodward, claim that Alberta and Canada have infringed Beaver Lake’s Treaty rights by approving oil and gas and other developments throughout the First Nation’s core traditional territory. Attached to the statement of claim is a schedule listing more than 15,000 asserted infringements of Beaver Lake’s constitutionally protected rights.
Full press release here.
For the Beaver Lake Cree Nation's Declaration, click here.
Wednesday Feb 27, 2008
|Byline: Justine Hunter
A dispute over the right to cut some hay in a remote area of B.C.'s interior is threatening to re-open a massive native land claims court battle. B.C. foresty officials are set to decide as early as this week on an application to renew a grazing licence on lands that were recognized last November by the B.C. Supreme Court as the aboriginal territory of the Xeni Gwet'in.
For the rest of this Globe and Mail article, click here.
Saturday Dec 15, 2007
|The federal and B.C. governments yesterday set the stage for an appeal of a landmark native land-claims decision, brushing aside an offer for a temporary truce that would have allowed time to negotiate a settlement out of court.
For the rest of Justine Hunter's article, click here.