La force de la perspective

The Canadian Bar Association

Supriya Tandan

Indigenous law

Sustainable development as a moral obligation tied to aboriginal title

Par Supriya Tandan juillet 17, 2017 17 juillet 2017

Sustainable development as a moral obligation tied to aboriginal title

 

It would be fitting were the Prime Minister to name an Indigenous person to fill Chief Justice Beverley McLachlin's seat after she steps down in December. 

After all, it was under her tenure that the Supreme Court of Canada took great pains to strengthen indigenous rights, relying in large part on honour and reconciliation as the twin moral obligations that should guide Canada in its stewardship of certain lands. In her court’s later years, it seems to have added a third that could change how we view our collective responsibility in terms of owning land: sustainability.

The Crown draws its power to manage lands via the sovereignty proclamation. However this power is not absolute and in the words of the court, is “burdened” by land that belongs to aboriginal communities. 

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Kinder Morgan: Is the law really on its side?

Par Supriya Tandan juin 5, 2017 5 juin 2017

Kinder Morgan: Is the law really on its side?

 

Politics will surely intervene in determining whether the Trans Mountain Kinder Morgan pipeline expansion project goes ahead.  It’s still unclear how things will get resolved in the BC legislature with possible challenges ahead surrounding the election of a new Speaker, and there’s even a chance the province could hold a new election.

But if the NDP and Green Party do succeed in forming an alliance to create a stable minority government, what happens to the Kinder Morgan the pipeline expansion project? The NDP and Green Party agreement includes a statement of shared interest in halting the project.

Can they do so legally?

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Environmental law

Priority of creditors: Sacrificing the environment?

Par Supriya Tandan mai 8, 2017 8 mai 2017

Priority of creditors: Sacrificing the environment?


A new case that pits federal insolvency laws against provincial schemes to clean-up environmental contamination may be headed to the Supreme Court of Canada. Last month the, Alberta Court of Appeal affirmed the Alberta Court of Queen’s Bench’s decision in Redwater Energy Corporation (Re), which ruled last year that federal provisions that give creditors the ability to disclaim certain uneconomic assets hold priority over provincial orders to remediate abandoned wells. The Alberta courts drew heavily upon Newfoundland and Labrador v. AbitibiBowater Inc, a 2012 top court ruling that dealt with similar issues but drew criticism for its potential in creating of perverse incentives. 

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Indigenous law

How extending personhood to Canada’s rivers could help reconciliation

Par Supriya Tandan avril 18, 2017 18 avril 2017

How extending personhood to Canada’s rivers could help reconciliation


In March, governments in India and New Zealand independently extended personhood rights to rivers, making them the first jurisdictions in the world to do so. Is it possible that Canada could follow suit? Likely not in the foreseeable future.  Not that it’s impossible.  The Canada Business Corporations Act grants corporations the rights and privileges of a natural person.  But we have yet to have a serious debate in this country as to whether these rights should be extended to components of the environment, such as rivers and forests, as there is little political will among federal and provincial leaders. 

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Indigenous law

Turning back the clock on failed consultations

Par Supriya Tandan mars 15, 2017 15 mars 2017

Turning back the clock on failed consultations

 

Next week the Supreme Court of Canada will hear a case that will clarify how to remedy failed consultations on land-development projects where the Crown has been found to be in breach of its obligations. Of course, the courts have not shied in the past from overturning project approvals that do not respect the process for meaningful consultation. What makes this case unique is the question of whether the Yukon government, in spite of its actions in sandbagging an entire process for the development of land use plans that had been agreed upon, should be allowed to scrap it altogether and go back to the drawing board.

The case involves a modern treaty, the Umbrella Final Agreement, which requires that a third-party commission, in consultation with the Yukon First Nations and the Government of Yukon, develop a land-use plan for traditional territory in the Peel Watershed. Respecting the consultation process outlined in the agreement, the Peel Watershed Planning Commission released a plan that set aside 80 per cent of land for protection while allowing 20 per cent open for development.

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