Aboriginal law

We have a special interest in assisting Indigenous governments with regulatory hearings and legislative reviews.

  • In 2019, the Declaration on the Rights of Indigenous Peoples Act came into force in British Columbia, and in 2021 the Interpretation Act was amended to require that all enactments be construed consistently with the U.N. Declaration. Our firm is assisting Indigenous governments to realize their governance rights and their jurisdiction under the U.N. Declaration in relation to BC and Federal laws. Our work includes arguing the application of the U.N. Declaration to the failure of the BC Gold Commissioner to meet its duty to consult Gitxaala Nation prior to granting mineral tenures: Gitxaala Nation v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680.
  • In 2017 and 2018, we represented First Nations in national consultations on the Canadian Environmental Assessment Act (2012) (now replaced with the Impact Assessment Act), the Navigation Protection Act, the Fisheries Act, the Pilotage Act, the National Energy Board Act, and the Oil Tanker Moratorium Act bill (now the Oil Tanker Moratorium Act).
  • In 2014 and 2015, we represented Adams Lake Indian Band, a number of landowners, and a ranch owner in the Kinder Morgan Trans Mountain Pipeline regulatory review.
  • In 2012-2014, we represented Heiltsuk First Nation before the Enbridge Northern Gateway Pipeline Joint Review Panel, and in 2015-2016, we represented Heiltsuk First Nation and Kitasoo/Xai’xais during a judicial review before the Federal Court of Appeal, and successfully challenged the decisions of the National Energy Board and government to allow the building of the pipeline.
  • In 2010 and 2011, Ng Ariss Fong in conjunction with Songbird Law Corporation, represented Heiltsuk First Nation before the Cohen Commission on the Inquiry into the Decline of Fraser River Sockeye Salmon.

We believe in supporting our clients in building and maintaining strong governance structures that reflect their Indigenous laws. In this work, we assist in designing governance structures, drafting governance documents, providing training, and over time, increasing the merging and implementing of Indigenous laws in the exercise of governance procedures consistent with Aboriginal rights and title.

canadian aboriginal art

“The Spawn” by KC Hall

Environmental Law

Ng Ariss Fong is a supporter of West Coast Environmental Law and RAVEN, and with the help of these organizations, has provided representation on important environmental issues. Areas of work include pipeline, mining, and energy law, water law, environmental assessments, agricultural land use law, and the intersection between aboriginal rights and the environment.

We look forward to collaborating with WCEL, RAVEN and others to safeguard the coast from oil spills through better environmental protection.

canadian aboriginal sculpture of a polar bear with a couple of crows on it

Pipelines, tankers, Indigenous laws, and Aboriginal rights and title

We believe energy projects that may impact Indigenous interests must aim for consent of the Indigenous government, following proper consultation and accommodation. Modern-day engagement with Indigenous governments on such projects requires that the Crown act pursuant to Crown laws that respect the rights of Indigenous peoples under the United Nations Declaration on the Indigenous Peoples (UNDRIP), and that such projects undergo environmental assessments that respect Indigenous laws and incorporate their methodologies and knowledge.

Our legal services in this area extend to negotiations, consultation meetings, and hearings before the Canada Energy Regulator (formerly the National Energy Board), the CER’s Pipeline Arbitration Committee, impact assessment review panels, the BC Environmental Appeal Board, and all levels of court. We represented First Nations in the national consultation on the Canadian Environmental Assessment Act 2012, the Navigation Protection Act, the Fisheries Act, the National Energy Board Act, and the Oil Tanker Moratorium Act.

In 2015 and 2016, we had the privilege of representing Heiltsuk First Nation and Kitasoo/Xai’xais First Nation during a judicial review before the Federal Court of Appeal, and successfully challenged the certification of the Enbridge Northern Gateway Pipeline: see our blog article here.

Aboriginal Canadians during a strike demanding safety for natural resources and the environment

Chief Councillor Marilyn Slett and Himas Harvey Humchitt of Heiltsuk First Nation.

Oil spills, Indigenous laws, and Aboriginal rights and title

For Heiltsuk First Nation, the success of the defeat of the Enbridge Northern Gateway Pipeline was short-lived. On October 13th, 2016, the Nathan E. Stewart – an articulated tug-barge – grounded, sank, and spilled over 100,000 liters of marine diesel and hydraulic oil into a key commercial and traditional harvest area. In October 2018, Ng Ariss Fong filed on behalf of the Nation a civil claim seeking a declaration of Aboriginal title to foreshore and seabed in the impacted area, establishing cultural and harvest losses from the oil spill, and challenging compensation limitations in the marine compensation scheme that infringe Aboriginal rights and title. In 2019, Heiltsuk’s claims expanded to the Federal Court and the Ship-Source Oil Pollution Fund.

In 2020, to support the creation of robust environmental protections, Ng Ariss Fong acted for Heiltsuk First Nation alongside other First Nations, before the Supreme Court of Canada, in the Reference re: proposed amendments to the Environmental Management Act (the “Crude Oil Reference”). The Crude Oil Reference was about the constitutionality of British Columbia’s power to require environmental protection permits on projects like the Trans Mountain pipeline expansion. Ultimately, before the Supreme Court of Canada, British Columbia was unsuccessful in establishing it had jurisdiction to create permits to regulate heavy oil transport and protect the environment. The critical issues of proper environmental protection and the liability of polluters are still unresolved, as there has been no advancement in current marine or environmental protection legislation. The Environmental Management Act remains incapable of forcing polluters to pay for all losses that may result from a spill.

photo showing an oil spillage in British Columbia

 

Mining and Indigenous governance

As of 2021, free miners had staked more than 15 percent of Gitxaala’s territory on Banks Island. One company staked a swath at the centre of the island from the west coast to the east coast, cutting the island in half. Ng Ariss Fong acted for Gitxaala Nation in challenging the automatic mineral tenure staking system under the Mineral Tenure Act. The Court ordered the government to reform the staking system within 18 months to provide for consultation prior to any staking but declined to find that section 3 of the Declaration Act (DRIPA) justiciable such that it could declare the mineral tenure regime inconsistent with United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and require government to take all measures necessary to bring about legal consistency with UNDRIP.

The current staking system still allows for automatic staking without any notice or consultation with First Nations. All that is required is a computer, $25 for a free miner certificate, and $1.85 per hectare to stake available land. For this small investment free miners can explore, remove minerals, sell minerals, obtain multiple mineral leases for upwards of 30 years, and sell or trade their tenures. This archaic and discriminatory system is a failure of the Crown’s duty to consult, inconsistent with the honour of the Crown, and contravenes the requirement under DRIPA that BC laws be consistent with the UNDRIP.

We are acting for Gitxaala in appealing the Courts’ failure to find s. 3 of DRIPA justiciable. This is an important issue for First Nations as it is central to the reconciliation project of aligning all laws to UNDRIP.  The court’s order to reform the staking system to allow for consultation prior to staking is a start but the alignment of the Mineral Tenure Act to UNDRIP is key to meeting the standard of Indigenous human rights set out under UNDRIP.

a map of Banks Island British Columbia

Illustration of a claim map.