‘”Pressing needs” do not mean the bare necessities of life’: Canada’s highest court rules First Nations with financial resources can qualify for advance costs, but significant barriers still remain: Anderson v Alberta, 2022 SCC 6

A greater number of First Nations may be able to pursue section 35 claims following the Supreme Court of Canada’s unanimous decision that a First Nation with substantial resources can qualify to have its legal fees paid in advance if the Nation cannot meet both its communities’ “pressing needs” and fund the litigation. Applying a contextual analysis informed by principles of reconciliation, the case embodies a paradigm shift within the judicial system towards improving reconciliation and access to justice for First Nations. However, First Nations still face a high evidentiary burden in proving advanced costs applications.

While the Covid-19 pandemic continues to impact the world, vaccines have been recognized as the best and most effective tool to limit the impacts of the disease. Many employers across the country, including First Nations governments and organizations, are looking to mandatory vaccine requirements as a means to ensure workplace safety and asking questions about how far these policies can go.

This case is significant as it is the first case to examine what it means to be able to meaningfully exercise and enjoy treaty rights and how the cumulative impacts of Crown-authorized development breach or restrict such treaty rights, in this case in relation to Treaty No. 8.

On July 16, 2021, the Supreme Court of Canada (“SCC”) released its decision in Southwind v Canada, 2021 SCC 28 (“Southwind”), a landmark ruling on equitable compensation. The issue before the SCC was how to assess compensation for losses caused by a historic breach of Canada’s fiduciary duty involving an unlawful taking of reserve lands.

On May 28, the Tk’emlúps te Secwépemc First Nation announced the discovery of a mass grave with 215 unmarked burials at the former Kamloops Indian Residential School. Only one month later, the Cowessess First Nation announced they had discovered 751 unmarked burials on the site of the former Marieval Indian Residential School. Both of these discoveries refute currently accessible official records, in which minimal deaths were recorded for the schools – 50 at Kamloops and 8 at Marieval. We have been reminded of the importance of Survivor testimony, as Elders, Knowledge Keepers and Survivors have provided information on mass graves and unmarked burials at sites across Canada. This news is distressing but unfortunately not shocking: these discoveries are similar to findings emerging from communities across Canada and stories of student deaths have been shared and well documented by Survivors.

TW. CW: Residential Schools

We struggle to find the right words to convey how profoundly sad, disheartening, and distressing the findings over the last few weeks have been. In this heartbreaking time, and with potentially more gravesite discoveries to follow, there are few words that fit. 

This case concerns whether Canada had justified its infringement of the commercial fishing rights of the five Nuu-chah-nulth Nations of Ahousaht, Hesquiaht, Mowachaht/Muchalaht, Tla-o-qui-aht, and Ehattesaht/Chinehkint (collectively, the “Nations”). The Nations’ commercial fishing rights had previously been declared eleven years earlier and the cumulative effect of Canada’s fishing regime was found to have infringed those rights (2009 BCSC 1494).

Numerous changes to the Canada Labour Code in 2019, 2020 and now in 2021 mean big changes for federally regulated employers across Canada. First Nations governments will need to review their Human Resources policies and practices to ensure consistency with the new requirements and to avoid incurring any potential liability for non-compliance.

In 2013, two Innu First Nations and several elected individuals (the “Innu”), filed suit in the Superior Court of Quebec against two mining companies responsible for a megaproject consisting of multiple open pit mines near Schefferville, Quebec and Labrador City, Newfoundland and Labrador, as well as port, railway and industrial facilities in Quebec and railway in both provinces.

On September 30th, 2019, the Alberta Court of Queen’s Bench awarded advanced costs to Beaver Lake Cree Nation (“Beaver Lake”). Beaver Lake is a Treaty 6 signatory. While purportedly protecting harvesting rights, Treaty 6, like other numbered treaties, contains a clause allowing the Crown to “take up” lands for various purposes.