First Nations interests guide the courts


The Yahey case underlined “the absence of consultation on cumulative effects, the absence of thresholds to assess these impacts on rights,” he adds.

The Supreme Court of Canada’s decision in Southwind v. Canada, published in July, dealt with Lac Seul First Nation lands in northern Ontario, which dams had permanently flooded as part of a government hydroelectric project in 1929. And although Southwind was dealing more Of valuing damaged reserve lands, she confirmed the duty to indigenous peoples, “and this could have an impact on resource development,” Freedman said.

The Crown’s fiduciary duty “structures the role voluntarily assumed by the Crown as an intermediary between Aboriginal interests in land and the interests of settlers,” the Supreme Court said in its decision.

Courts are starting to look into how development affects the way First Nations live, says Jeff Langlois, director of JFK Law in Vancouver, who practices Indigenous law, including Crown consultation, and qualifies Yahey of “historic decision”.

British Columbia has announced it will not appeal the Yahey decision, but Langlois argues the province needs to develop a different system. “I think it requires a very different type of project evaluation, but also project planning,” he says, adding that he has seen fewer development proposals succeed. However, he also notices that more and more companies are talking with First Nations and involving them as project partners.


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