Three more legal wins in July – Native winning-streak now at 185

July 02 – #183 – ‘modern right to fish and sell fish’

For the second time in two years, the BC Court of Appeal has ruled that the Nuu-chah-nulth (NCN) have “a modern right … to fish and sell fish”. Again this ruling is from the National Chief’s home town, making Shawn Atleo unique in being a two-time winner in the annals of the native legal winning streak. And in this second ruling, the highest court in the province actually made a point of highlighting the Crown’s dubious legal strategy:

[32] It should be recalled that prior to this action, the appellant (Canada) never recognized that the respondents (NCN) had an Aboriginal right to fish.

Readers of Captain Cook’s third voyage know that he re-provisioned at Nootka Sound by trading with the locals; manifesting a long standing pattern of regional trade in fish by the NCN that has only now been legally recognized. It’s hard to believe that it took from 1779 to 2013 to have this basic fact of west-coast subsistence legitimized. (Apparently some 15 lawyers were involved for Canada and 5 more for BC).  Thus legal constipation may well have been a factor in the refusal to recognize this historically obvious aboriginal right. In any event, the National Chief is now more empowered than ever to ‘do battle’ on the national resources agenda; having won two expanded rulings in his back-yard upon which to justify the AFN’s resource-sharing expectations and access-to-resources imperatives.


July 07 – #184 – ‘deep consultation’ re caribou

White River First Nation, likely the most westerly in Canada (ranging along the Alaska border) has derailed Tarsis Resources mining exploration program.  In an expansive ruling tracking: the initial ‘cordial’ relationship, which ‘broke-down’, over the ‘Specially Protected’ Chisana caribou herd, which natives ‘voluntarily stopped hunting’ in 1994, followed by a ‘novel recovery project’ (penned pregnant cows), the ruling focused on the conflicting reports of the whereabouts of caribou around the ‘Main Work Area’ which the court considered ‘a live issue’:

[114]   I have concluded that the Director misconceived both the strength of the claim of the White River First Nation and the extent of the potential adverse impact of the White River Project on their right to harvest the Chisana Caribou Herd. …

[115]  As well, given the profound implications of the project for First Nations land use and culture that were identified by the Designated Office, the duty in this context does not end with a more meaningful consultation. There is as well a duty to accommodate the White River First Nation. …

[123] However, here the consideration was not full and fair. The First Nation should have had the opportunity to put forward a technical expert, challenge the telemetry data, and present their traditional knowledge. Fairness and the honour of the Crown require that the First Nation be given an opportunity and time to put forward their view when the Decision Body, as here, is contemplating a decision completely at odds with the one that was rendered after an in-depth consultation process. (excerpts: White River First Nation v. Yukon Government  2013 YKSC 66)

Thus the approval was quashed by the court and further meetings ordered – based upon ‘deep consultation’ – to be followed by the issuance of a new Decision Document.  (to be continued – ed)

July 22 – #185 – indigenous human rights

Hudbay Minerals Inc. (and its two foreign subsidiaries) lost on all their motions before the Ontario Superior Court; intended to dismiss and/or strike a multi-prong lawsuit launched against them by indigenous peoples respecting purported human rights violations near their former Fenix mine project in Guatemala.

[4] The plaintiffs are indigenous Mayan Q’eqchi’ from El Estor, Guatemala. They bring three related actions against Canadian mining company, Hudbay Minerals, and its wholly controlled subsidiaries. They allege that security personnel working for Hudbay’s subsidiaries, who were allegedly under the control and supervision of Hudbay, the parent company, committed human rights abuses. The allegations of abuse include a shooting, a killing and gang-rapes committed in the vicinity of the former Fenix mining project, a proposed open-pit nickel mining operation located in eastern Guatemala. (excerpt: Choc v. Hudbay Minerals Inc, 2013 ONSC 1414)

None of the allegations have been proven; indeed a trial date remains to be set.

However the outcome portends that the parent company here in Canada could be potentially legally responsible – along with its subsidiaries – should the trial result in findings of wrong doing and/or liability (all of which has yet to be determined).

But in the lead-up, the indigenous peoples have managed to get their legal actions embedded within Canadian court jurisdiction; and they have now successfully fought-off the miners: a) motion to strike the three actions … b) the motion to strike the Caal action as statute-barred… and c) CGN’s jurisdiction motion…

Thus with this precedent-setting procedural ruling, the native legal winning streak has landed on Bay Street; witness the next day’s headlines in the Globe and Mail: Lawyers scramble after HudBay decision”. (July 25, 2013)

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