Sunday, May 26, 2013

Cumulative Effects and Treaty Rights ~ A case for damage compensation? (Fasken Martineau)


Damages claim for treaty infringement from cumulative impacts allowed to proceed

Aboriginal Law Bulletin
May 3, 2013

In Lameman v. Alberta2013 ABCA 148, the Alberta Court of Appeal dismissed an appeal by the Crown in Right of Alberta (“Alberta”) and the Attorney General of Canada (“Canada”) from a decision of the Alberta Court of Queen’s Bench refusing to strike portions of the Statement of Claim of the Beaver Lake Cree Nation (“BLCN”). By affirming the lower court’s decision, the Court of Appeal allowed the BLCN’s claim for damages for treaty infringement to proceed. The basis for the BLCN’s claim is that the cumulative impacts of past Crown authorizations for resource development in their traditional territory unjustifiably infringes their rights to hunt, trap, and fish under Treaty 6.

Background

BLCN is a signatory to Treaty 6. Under Treaty 6, the signatory First Nations surrendered certain lands to the Crown in exchange for reserve land and other benefits, including the right to hunt, trap, and fish throughout the tracts surrendered. BLCN alleges that the Treaty requires Alberta and Canada to manage BLCN’s core traditional lands to ensure that its members are able to exercise their treaty rights.
In its claim, BLCN seeks damages from Alberta and Canada for alleged breaches of their Treaty 6 obligations. By granting approximately 19,000 individual authorizations for oil and gas, forestry, mining, and other activities on BLCN’s claimed “core lands”, BLCN argues that Alberta and Canada have failed to discharge their responsibilities under the Treaty. BLCN says the cumulative impact of these authorizations infringes their treaty rights, as anticipated by Mikisew.

Conclusion

The Alberta Court of Appeal’s decision to refuse to strike BLCN’s claim may result in the adjudication of one of the first actions for damages for past infringements contemplated in Rio Tinto. The decision is also noteworthy as the past infringement at issue arises from the cumulative impacts of development from numerous unrelated projects spanning multiple resource sectors.

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