Court of Appeal Rules Against Kinder Morgan, Federal Government on Existing Trans Mountain Pipeline

Court ruled Ottawa failed to scrutinize outdated terms put in place in 1952

The Federal Court of Appeal has ruled against Kinder Morgan Canada and the federal government in relation to the existing Trans Mountain Pipeline.

Tuesday’s ruling states the federal government failed in its legal obligation to act in the best interests of the Coldwater Indian Band when it neglected to modernize the terms of a 1952 decision that allowed Kinder Morgan to use Coldwater’s reserve for the pipeline.

Coldwater Indian Band, which is located about 12 kilometres south of Merritt, B.C., has about 860 members, half of which live on the reserve.

The existing Trans Mountain Pipeline was constructed through the reserve in 1952.

At the time, the band received a one-time payment of $1,292.

Failure to scrutinize 1952 terms

The ruling states the minister of Indigenous affairs failed to ensure the terms authorizing Kinder Morgan’s use of the reserve were updated from the outdated terms of 1952.

According to court documents, the minister approved the transfer without properly scrutinizing the transaction.

“In the circumstance, particularly in light of the importance of Coldwater’s interest in its reserve lands, the Crown was under a continuing duty to preserve and protect the band’s interest in the reserve land from an exploitive or improvident bargain,” the decision reads.

“The minister’s failure to assess the current and ongoing impact of the continuation of the easement on Coldwater’s right to use and enjoy its lands rendered his decision unreasonable.”

‘This is a great day’

In a release issued on Wednesday, Coldwater’s chief and council said they were happy with the court’s decision.

“We are very happy that the court recognized the importance of our land to the Coldwater people and that it is holding the Crown to a high standard of conduct in making decisions about our land,” said Coldwater Chief Lee Spahan.

“Now things must change. This is a great day for Coldwater and all First Nations.”

CBC News Posted: Sep 27, 2017

[SOURCE]

Manitoba Court Rules, Brian Sinclair’s Family Can Sue Regional Health Authority

Brian Sinclair was 45 when he died waiting for treatment in the emergency room at Health Sciences Centre. He had waited in his wheelchair for 34 hours.

The Canadian Press

WINNIPEG – Manitoba’s highest court has ruled that the family of a man who died during a 34-hour hospital emergency room wait can sue the health authority for a breach of charter and privacy rights.

Lower courts struck out the heart of the lawsuit filed by the family of Brian Sinclair, ruling his loved ones couldn’t sue because those rights died with him in 2008. Lawyers for Sinclair’s family argued it was absurd that the family of a man who died because he didn’t receive proper care couldn’t sue because he was dead.

After eight months of deliberations, the Manitoba Court of Appeal said that the lawsuit should be allowed to proceed.

Vilko Zbogar, one of the family’s lawyers, said the ruling has important implications for the evolution of charter law, as well as the family’s pursuit of justice.

“This is absolutely a landmark ruling on charter interpretation and on privacy rights,” he said.

“It’s important to the family to have vindication for Brian Sinclair’s death and it’s very important to them to hold the institutions who were responsible accountable for their conduct. They made racist assumptions about why Brian Sinclair was there sitting in his wheelchair throwing up during a 34-hour period and that’s what led to his death.”

The appeal court also restored the family’s right to sue the Winnipeg Regional Health Authority for disclosing private health information about Sinclair after his death.

Robert Sinclair, Brian Sinclair’s cousin, said the family won’t stop trying to hold health authorities to account “for their shameful conduct both before and after his death.”

“We are grateful that the courts will now allow us to do that,” he said in a statement.

The 45-year-old double amputee died of a treatable bladder infection caused by a blocked catheter while waiting for care at Winnipeg’s Health Sciences Centre.

Although Sinclair spoke to a triage aide when he first arrived at the emergency room, he was never formally entered into the hospital’s system. He languished in the waiting room for hours, growing sicker and vomiting several times, but was never asked if he was waiting for care.

Rigor mortis had set in by the time Sinclair was discovered dead. An inquest into his death heard many employees assumed he was drunk or seeking shelter, or had been seen and was waiting for a ride.

Despite case law which argues charter rights do not survive death, the appeal court judges found the issue should be argued in court.

“I see no imaginable reason to borrow such a discredited and outdated principle of the common law to the modern age where key values underlying the charter include the affirmation of individual human dignity and respect for the value of human life,” Justice Chris Mainella wrote.

Allowing the lawsuit to proceed will “clarify the serious issue of whether redress for a charter violation ends on death when the alleged breach contributed to the death.”

Felicia Wiltshire, spokeswoman for the Winnipeg Regional Health Authority, said the court decision is being reviewed and the authority is assessing options.

Kelly Dixon, lawyer for the health authority, told the appeal court in September that if the lawsuit had been allowed to proceed, it would have argued that Sinclair’s charter rights were not violated. She told the judges the allegations were more a claim of medical negligence than a charter violation.

The health authority has publicly apologized and paid out $110,000 in damages to the Sinclair family.

 

Court Rules BC First Nations Can Sue Over Territorial Claims

Aerial view of Moose Cree First Nation photo credit: Danny Kresnyak

The Canadian Press | Posted, Apr 16th, 2015

Industrial giants, from forestry companies to mining operations, must respect aboriginal territorial claims in British Columbia just as they would heed the rights of any other Canadian landowner, the province’s highest court has ruled.A decision from the B.C. Court of Appeal paves the way for First Nations to launch lawsuits to protect their territory from private parties, even without proving aboriginal title.

Two northwestern First Nations expressed vindication on Wednesday after a panel of three judges overturned a lower court ruling that denied them opportunity to sue the aluminum producer Rio Tinto Alcan.

The Saik’uz and Stellat’en First Nations, based downstream of the company’s Kenney hydroelectric dam and reservoir, were refused a trial on the premise that aboriginals must first establish their title. Their initial suit was mounted in September 2011.

The nations contend the dam, in operation since the 1950s, causes nuisance and breaches their rights to the natural waterway that runs through their land. They’re seeking damages for property-rights violations, alleging the electricity generator has harmed the Nechako River system and its fisheries.

The decision means they can now take their claims to trial.

“We are pleased that the Court of Appeal recognized that First Nations’ aboriginal title exists, prior to proof in court or treaties with government,” Stellat’en Chief Archie Patrick said in a news release.

He said the decision grants aboriginals the same private-law protections as other individual landowners.

“Our peoples are determined to continue to seek justice for our rights and the Nechako River,” he said.

The Kenney dam provides water for Rio Tinto’s power generation facility that’s used by its aluminum smelter located in Kitimat.

Rio Tinto Alcan has 60 days to apply for leave to appeal to the Supreme Court of Canada. A spokesman said the company is reviewing the decision.

The judge who wrote the decision said that the law is clear that Aboriginal rights “do exist prior to declaration or recognition.”

Justice David Tysoe wrote that setting a separate standard for Aboriginal people, before they can sue other parties to enforce their rights, is arguably inconsistent with the charter right to equality.

“Aboriginal people are part of Canada’s community, and they should not be treated disadvantageously in comparison to any other litigant asserting claims…,” he wrote.

Lawyer Gregory McDade, who represents the two First Nations, said there’s been no previous case law on aboriginal title and called the decision significant.

“I would put it on the level of the Haida decision and the Tsilhqot’in decision in terms of moving the law forward so that aboriginal rights are recognized like other Canadian legal rights.”

The Haida ruling, in 2004, established that Crown has a duty to consult with First Nations regarding land use. The more-recent Tsilhqot’in decision is a landmark ruling in which the Supreme Court of Canada recognized aboriginal title to a specific tract of land for the first time in the country’s history.

That decision, last June, concluded a 25-year-long legal battle.