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Court rulings provide further clarity on Indigenous consultation, liability – Indigenous Law Insights January 2022 (webinar)

Author(s): Isabelle Crew

Jan 26, 2022

For companies involved in land development projects, two recent court decisions in Alberta and British Columbia have potential cross-Canada implications, Osler partner Martin Ignasiak and associate Isabelle Crew told participants in January’s Indigenous Law Insights webinar.

In Métis Nation of Alberta v. Alberta, the Métis Nation of Alberta (MNA) alleged that the provincial government had abandoned its obligation to negotiate with the Métis people, which the MNA claimed to represent. The Alberta government argued that the MNA did not represent all local Métis. The Court of Queen’s Bench of Alberta ruled that the provincial government had a broader obligation to the Métis people than what the MNA represented. This decision illustrates the importance of correctly identifying the right Métis local group for consultation and negotiation.

In Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc., the Supreme Court of British Columbia found that private sector resource development companies may be held liable in nuisance for unreasonable interference with Aboriginal rights. However, the Court affirmed that the defence of statutory authority is available to defend such claims where such interference is authorized by regulatory authorizations. This decision has significant implications for both private sector and government liability where resource development activities impact Aboriginal rights.

Both cases highlight the importance of ongoing consultation with Indigenous groups when planning land development projects.

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