First Peoples Law is dedicated to defending and advancing Indigenous peoples' Aboriginal title, rights and Treaty rights.

Aboriginal Law Report

May 26, 2019

By Bruce McIvor

This week's edition includes Supreme Court rulings, pipelines, mining, consent, treaty negotiations, hockey and more. 

In the News

Residential School Survivors who attended Kivalliq Hall in Rankin Inlet have fought and won recognition under the Indian Residential Schools Settlement Agreement.

A free, prior, and informed consent policy was announced in Washington state.

A child welfare Charter challenge is awaiting a decision from the Manitoba Court of Appeal.

Manitoba was called to address the impact of ongoing hydro diversions--check out the Wa Ni Ska Tan Alliance of Hydro-Impacted Communities here.

Land protectors in Labrador were in court over the Muskrat Falls hydro dam project.

A sand mining project is raising concerns at Hollow Water First Nation.

Columbia River Treaty (re)negotiations are ongoing.

Proposed forestry legislation was postponed in the Northwest Territories amid concerns of inadequate consultation.

K'ómoks First Nation reached a specific claim settlement with the federal government.

Chief Poundmaker was exonerated.

The “conquered people” argument is back again.

Alberta’s new government was in the news on a number of fronts.

During a stop in Vancouver the Prime Minister was questioned on the federal government’s pipeline plans.

Ontario released its “revised Indigenous curriculum.”

The legal meaning of “moderate livelihood” is back in the news in Wolastoqiyik territory.

The National Indigenous Fisheries Institute released its review of Indigenous programs at Fisheries and Oceans Canada.

Caribou recovery is an important issue in British Columbia.

Kwantlen First Nation is revitalizing eulachon in Stó:lō territory.

The Royal BC Museum has a new policy for repatriating items stolen during the potlatch ban.

The Squamish Nation is telling the history behind its new housing plans at Sen̓áḵw.

Vuntut Gwitchin First Nation declared a climate state of emergency.

The federal government has yet to decolonize its citizenship guide.

An Indigenous land-based healing camp celebrated its one year anniversary in Yellowknife.

From the Courts

In Reference re Environmental Management Act (British Columbia), 2019 BCCA 181, the BC Court of Appeal ruled that BC’s proposed amendment regarding the flow of bitumen into the province was beyond provincial jurisdiction.

In R. v. Barton, 2019 SCC 33, the Supreme Court ruled that the acquittal of Bradley Barton in the death of Cindy Gladue was tainted by myths of consent and ordered a new manslaughter trial.

In Clark v. Abegweit First Nation Band Council, 2019 FC 721, the Federal Court allowed the judicial review of custom election regulations and provided commentary on the role of Indigenous legal processes.

In Whalen v. Fort McMurray No. 468 First Nation, 2019 FC 732, the Federal Court applied an analysis of Indigenous legal sources to evaluate the role of customary law in consensus-based decision making.

South of the border, in Herrera v. Wyoming, the US Supreme Court ruled that Wyoming statehood did not extinguish the Crow Tribe’s hunting rights under the 1868 Treaty of Fort Laramie.

On the Air

ȻWENÁLYEN Nick Claxton on revitalizing the reef net fishery in W̱SÁNEĆ territory.

On the Stage

Treaty-making and theatre production.

On the Screen

Heperi Mita’s new film Merata: How Mum Decolonized the Screen closed the DOXA festival in Vancouver.

Off the Press

Here's an important piece on Muskrat Falls and methylmercury. 

here's a legal update on the ongoing history of sex discrimination under the Indian Act.

Finally hockey, settler colonialism, and reconciliation.

Quote of the Week

“The responsibility lies on all those within the criminal justice system - judges, defence lawyers, prosecutors, police - to ensure that the sentiment, the message, the obligations outlined in this decision are given life so that Indigenous women across this country have our justice system as a legitimate source of justice, recourse, safety, and protection.” 

Qajaq Robinson, MMIWG Commissioner, on the Supreme Court's ruling in R. v. Barton.

Off the Bookshelf

“Even where the court moves toward recognizing modes of land use that do not conform to an ideology of improvement as the basis for an aboriginal title claim, they have yet to do so on the basis of aboriginal concepts of land use and ownership. Furthermore, in not overturning the test for a justifiable infringement of aboriginal title established in Delgamuukw, the court refuses to address the constitutive violence that is repeated with every judgment that reiterates the fiction that the Crown maintains underlying sovereignty over First Nations lands.”

Brenna Bhandar, Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership (2018).

Download our new eBook for free

Our new book, Canadian Aboriginal Law in 2018: Essays and Case Summaries, is now available as a free download through our website.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation.  Download Bruce's bio.

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This week's Aboriginal Law Report was produced with the assistance of Cody O'Neil.

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