Description of last year's 2011 edition:
This updated
version of the only portable annotation of the constitutional provisions
relating to aboriginal peoples includes a review of the case law under s.
91(24) of the Constitution Act, 1867 [s. 91(24) (division of powers)] and the
Canadian Charter of Rights and Freedoms [s. 15, (equality rights), s. 25
(Aboriginal Rights and Freedoms not affected by the Charter) and s. 35(1)
(Aboriginal and Treaty rights)]. The consolidation of the Indian Act and
Regulations contains hundreds of annotations and the full texts of the Indian
Oil and Gas Act and the First Nations Land Management Act. This work features a
brief annual review of the law, highlights of other legislation related to
aboriginal peoples, important cases and a summary of the most important Supreme
Court of Canada cases on aboriginal law issues.
The 2011 Annotated
Indian Act and Aboriginal Constitutional Provisions contains:
- Table of Cases
- Indian Act
- Selected Indian Act Regulations
- First Nations Land Management Act
- Department of Indian Affairs and Northern Development
Act
- Indian Oil and Gas Act
- Indian Oil and Gas Regulations, 1995
- Highlights of other relevant legislation
- Constitution Acts
- Royal Proclamation
- Selected Supreme Court of Canada summaries
- Glossary
- Index
This edition features the addition to and updating of the
following regulations under the Indian Act:
- Indian Band Council Elections Order, SOR/97-138
- Indian Bands Revenue Moneys Regulations, C.R.C. 1978, c.
953
- Order Exempting Bands From the Operation of Section 32 of the
Indian Act, SOR/2010-28
The 2011 edition also includes over thirty new and amended
annotations including:
- Commercial Fishery:
- Lax Kw'alaams Indian Band v. Canada (Attorney General),
[2009] B.C.J. No. 2556, 2009 BCCA 593, [2010] 1 C.N.L.R. 278: The court found
that there was no Aboriginal right to a commercial fishery nor any fiduciary
duty on the part of the Crown to provide access to a commercial fishery. The
trial judge found that the Coast Tsimshian existed primarily within a
subsistence economy and that trade consisted mainly for gift exchanges or
exchange of luxury goods, such as eulachon grease. This trade in eulachon
grease did not transform into a right to commercial fishing of salmon, halibut
and other species of fish. The trial decision was upheld by the Court of
Appeal.
- Fiduciary Duty of Province:
- Chippewas of Mnjikaning First Nation v. Ontario (Minister
of Native Affairs), [2010] O.J. No. 212, 2010 ONCA 47: The province did not owe
a fiduciary duty to a First Nation that was hosting a casino whose revenues
were to be shared with First Nations across Ontario. The Ontario Court of
Appeal upheld the trial judgment and commented on the fiduciary duty of the
province. Fiduciary duties may arise from the particular conduct of the
provincial Crown in specific situations, but, no such duty arose on the facts
here. Even if the fiduciary duty existed, the duty would apply to all the First
Nations in the province, not just Mnjikaning.
- Duty to Consult and Accommodate:
- Tsuu Tina Nation v. Alberta (Minister of Environment),
[2010] A.J. No. 479, 2010 ABCA 137: Whether or not there is a duty to consult
prior to passing legislation, there may be a duty to consult at earlier stages
of development. Even if the Legislature itself does not have a duty to consult
prior to passing legislation, the duty may still fall upon those assigned the
task of developing the policy behind the legislation, or upon those who are
charged with making recommendations concerning future policies and
actions.
- Standing Buffalo Dakota First Nation v. Enbridge
Pipelines Inc., [2010] 1 C.N.L.R. 371 (Fed. C.A.): The National Energy Board
was not required to determine whether the Crown had a duty to consult. The
Crown was not a party in the proceedings. The Federal Court of Appeal found
that the NEB was not required to look into the Crown's actions. The NEB was
making discrete decisions in relation to corporations (not the Crown). The
legislation did not require the NEB to undertake a Haida consultation. The NEB,
because it was a federal Board, could not conduct a Haida analysis in relation
to the Crown in right of a province.
- Environmental Assessment:
- Quebec (Attorney General) v. Moses, [2010] S.C.J. No. 17,
[2010] A.C.S. no 17, 2010 SCC 17: The environmental assessment provisions of
the JBNQA apply to approvals internal to the Agreement. They do not preclude
the application of federal environmental laws that exist outside of the
agreement. McKenzie Bay International Ltd. proposed to establish a vanadium
mine on Category III lands described under the James Bay and Northern Quebec
Agreement (JBNQA). The three governments - the Crees, Quebec and Canada -
agreed that the JBNQA contemplated only one environmental process, either
federal or provincial, depending on the subject matter. The Supreme Court of
Canada agreed that the approval of a project under the process contemplated in
the agreement did not preclude the application of federal fisheries legislation
and the Canadian Environmental Assessment Act. The Agreement contemplated the
imposition of federal regulations and there was no conflict between the
provisions of the JBNQA and the federal legislation.
The legislation cited in this edition is current to Canada
Gazette vol. 144:21 (October 13, 2010).
|
|
