Anderson v Alberta, 2022 SCC 6: ‘“Pressing needs” do not mean the bare necessities of life’

‘”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.

read more

Mandatory Vaccines in the Workplace: Guidance for First Nations

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.

read more

TW/CW. Residential Schools. Considering the Legal and Human Rights Framework for Addressing Mass Graves Connected to Indian Residential Schools

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.

read more

BC Court of Appeal rejects limitations placed on Aboriginal commercial fishing rights: Ahousaht Indian Band and Nation v. Canada, 2021 BCCA 155

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).

read more

Recent Changes to the Canada Labour Code You Need to Know About (Jan 2021)

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.

read more

The Supreme Court of Canada has opened the door to multi-jurisdictional aboriginal rights and title claims: Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani Utenam)* (February 21, 2020)

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.

read more

Advanced Costs allows the Beaver Lake to continue their challenge of the taking up clause in Treaty 6: Anderson v Alberta (Attorney General), 2019 ABQB 746 (Oct 3, 2019)

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.

read more