Karey Brooks, JFK Law Corporation

Karey Brooks is a Principle, JFK Law Corporation. Her practice focuses primarily on Aboriginal and constitutional litigation.

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Frank Calder The Man who Moved the Mountain

This is another installment in our series on the people behind the transformational court cases that affect Aboriginal Peoples in Canada. Please visit Delbert Guerin Defender of the Musqueam Nation and Delgamuukw and Gisday’way to learn about the men behind those court cases.

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West Moberly Case

West Moberly First Nations v. British Columbia (Chief Inspector of Mines) [1] BC Court of Appeal, 2011

In the West Moberly case the Court of Appeal upheld an Order of the BC Supreme Court declaring that the Crown was in breach of its duties to consult and accommodate the West Moberly First Nations when granting permits to First Coal Corporation regarding its advanced exploration program.  

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Rio Tinto decision

Rio Tinto v. British Columbia (Chief Inspector of Mines) [1] Supreme Court of Canada, 2010

 

In the 1950s, the government of BC authorized the building of a dam and reservoir that altered the flow of the Nechako River without consulting the First Nations of the Carrier Sekani Tribal Council affected by this project. Excess power generated from the dam has been sold by Rio Tinto Alcan to BC Hydro under Energy Purchase Agreements (“EPAs”). Since the initial EPA in 1961 there have been regular renewals of these agreements. At the time of the 2007 EPA the First Nations asserted to the BC Utilities Commission (the “Commission”) that these agreements should be subject to consultation under Section 35 of the Constitution Act, 1982.

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Marshall Case

R. v. Marshall; R. v. Bernard [1] Supreme Court of Canada, 2005

 

Historical Treaties and “Usufructuary Rights”

The Royal Proclamation of 1763 was a demonstration of Britain’s acknowledgement that “any lands that had not been ceded to or purchased by” the Crown were reserved to “the several Nations or Tribes of Indians with whom We are connected, and who live under our protection.” Many misunderstandings, disputes and grievances about those early treaties have erupted over the years, usually arising from Aboriginal efforts to enforce the treaties. Much of the conflict has been rooted in the fundamental differences between the Aboriginal tradition of communal land rights and responsibilities and the European tradition of private land ownership.

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Mikisew case

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) [1]- Supreme Court of Canada, 2005

 

Duty to Consult in Post-Treaty Context

The Supreme Court of Canada confirmed that the duty to consult also exists in the post-treaty context in the 2005 case of Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage). The Court held that even though governments have a power to exercise their treaty rights, those rights are subject to a duty to consult in situations where the exercise of those treaty rights would have an adverse effect on Aboriginal treaty rights.

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R. v. Powley

R. v. Powley, Supreme Court of Canada, 2003

The Powley case is the most significant decision relating to Métis people in Canada to date. Unlike Status Indians, whose identity is determined by the provisions of the Indian Act, there was no legal definition of who was a Métis person until this Supreme Court of Canada decision.

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Taku case

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director)[1]Supreme Court of Canada, 2004

The unanimous decision in the Taku case provided much needed clarification of the duties of consultation and accommodation in respect of government decisions, which may impact asserted Aboriginal rights.

 

Applying Haida Nation, the Court ruled that the Crown owed a duty to consult meaningfully with the Taku River Tlingit First Nation (TRTFN) regarding the decision to re-open the Tulsequah Chief Mine, and to permit Redfern Resources Ltd. (the mine operator) to build a 160 kilometre access road through a portion of their traditional territory. However, the Supreme Court also found that the duty of consultation was met by TRTFN’s extensive involvement in the three and a half year review process conducted under B.C.’s Environmental Assessment Act.

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Haida Case

Haida Nation v. British Columbia (Minister of Forests)[1]Supreme Court of Canada, 2004

The Haida case is significant because a unanimous Supreme Court of Canada set out the basic principles applicable to the duty to consult.

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Meares Island case 1985

Martin [1], Supreme Court & Court of Appeal of British Columbia 1985 - ongoing

In 1984, members of the Nuu-chah-nulth First Nation and other protesters blocked MacMillan Bloedel’s access to its timber berth on Meares Island. The Province of British Columbia regarded the vast majority of the island as Crown land, but the protesters claimed that allowing logging on Meares Island interfered with Aboriginal title. A court injunction was sought to halt MacMillan Bloedel’s operations until the claim was resolved.

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