Legal Update: Current Issues Affecting First Nations’ Business Structures

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First Nations continue to increase their use of corporate entities to conduct their commercial activities. The band structure, as defined under the Indian Act, is not designed to conduct commercial activities and, more particularly, not designed to offer protection from liability. The corporate structures available to First Nations’ business ventures are those available to all business enterprises and include the structures considered in this pa…

Ahousaht Indian Band and Nation v Canada (Attorney General) 2018 BCSC 633 – Case Summary

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On April 19, 2018 the Honourable Madam Justice Humphries (“Humphries J.”) of the British Columbia Supreme Court (“BCSC”) released her decision in Ahousaht Indian Band and Nation v Canada (Attorney General), 2018 BCSC 633, ruling that the Ehattesaht, Mowachaht/Muchalaht, Hesquiaht, Ahousaht and Tla-o-qui-aht’s (the “Plaintiffs”) declared right to fish within their fishing territories and to sell that fish was unjustifiably infringed by Canada in c…

Update on Recent Caselaw

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This legal update, presented on September 28, 2015 to the Annual General Assembly of the Union of B.C. Indian Chiefs, provides a round-up of some of the cases that have been decided in the last few months, and the trends these cases reveal. I. Consultation Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 352: In this decision, the Court of Appeal agreed with the BC Supreme Court’s decision finding no b…

Clyde River (Hamlet) v Petroleum Geo‑Services Inc., 2017 SCC 40 and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41 – Case Summaries

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On July 26, 2017, the Supreme Court of Canada (“SCC”) released its decisions in two cases: Clyde River (Hamlet) v. Petroleum Geo‑Services Inc. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. In these cases Indigenous Nations argued that the Crown had breached its duty to consult when the National Energy Board (“NEB”) approved oil and gas activities that impacted their rights. In Clyde River, the SCC provided clarity regarding…

Gamlaxyeltxw v British Columbia (Minister of Forests, Lands and Natural Resource Operations) 2018 BCSC 440 – Case Summary

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This case involves an issue that is being litigated for the first time in Canadian courts. In the decision, Justice Sharma of the British Columbia Supreme Court was asked to address how to resolve a potential conflict between two constitutional duties: the Crown’s duty to an Aboriginal people with whom it has entered into a modern treaty and the Crown’s duty to Aboriginal people who are relying upon their (asserted) s. 35(1) Aboriginal Title and…

Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345 – Case Summary

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In a decision that provides welcome clarity on the Crown’s obligation to consult and set the proper stage for meaningful consultation to take place, the BC Court of Appeal overturned the decision of the BC Supreme Court, finding that the Province breached its duty to consult with the Kwakiutl First Nation (“KFN”) regarding the decisions to remove private lands from a Tree Farm Licence and to approve and renew a Forest Stewardship Plan in KFN’s Tr…

Williams Lake Indian Band v Canada (AANDC), 2018 SCC 4 – Case Summary

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On February 2, 2018 the Supreme Court of Canada (“SCC”) released its decision in Williams Lake Indian Band v Canada (AANDC), 2018 SCC 4, ruling the Williams Lake Indian Band (“Band”) was wrongfully displaced from its village lands, and restoring the decision of the Specific Claims Tribunal (“Tribunal”). The Tribunal had found that the Colony of British Columbia (“Colony”) and Canada owed and breached fiduciary obligations to the Band in relation…

Alexandra Morton v. Minister of Fisheries and Oceans and Marine Harvest Canada Inc., 2015 FC 575 – Case Summary

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In this decision of the Federal Court of Canada, Mr. Justice Rennie concluded that certain conditions included in Marine Harvest’s fish farm licence were inconsistent with the regulatory standards governing when fish can be transferred to the marine environment, and were also inconsistent with the precautionary principle. The Court gave the Department of Fisheries and Oceans (“DFO”) until September 2015 to revise the licence conditions to bring t…

Ahousaht Indian Band and Nation v. Canada (Attorney General), 2013 BCCA 300 – Case Summary

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The BC Court of Appeal (“BCCA”) recently issued a decision that affirmed the Nuu-chah-nulth’s Aboriginal rights to fish and sell fish and found that Canada’s regulatory regime infringed these rights. This decision resolves nearly four years of appeals and essentially restores the 2009 decision of the trial judge, Madam Justice Garson (the BCCA did not accept Justice Garson’s finding that the First Nation had established an Aboriginal right to the…

Doig River First Nation and Blueberry River First Nations v Her Majesty the Queen in Right of Canada 2015 SCTC 6 – Case Summary

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In this decision, Justice Whalen of the Specific Claims Tribunal (“Tribunal”) found that the Crown breached its legal obligations to the Doig and Blueberry River First Nations (formerly the Fort St. John Beaver Band) when it failed to obtain subsurface rights for the Replacement Reserves it acquired following the Band’s surrender of the Montney Reserve. In particular, the Tribunal found that the Crown failed to inform the Band about the nature an…