Aboriginal, Environmental and Energy Law

Aboriginal law

We are honored to be able to assist First Nations and Aboriginal communities with their legal representation and governance needs. Our work with aboriginal groups extends to litigation, providing strategic advice, and consulting or negotiating with government and third parties.

Our firm has a special interest in assisting aboriginal groups with regulatory and legislative reviews.

In 2017 and 2018, we we represented First Nations in national consultations on the Canadian Environmental Assessment Act 2012, the Navigation Protection Act, the Fisheries Act, the Pilotage Act, the National Energy Board Act and the proposed 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. We are currently representing Adams Lake Indian Band in the reconsideration hearing regarding marine impacts to indigenous interests, and the pending indigenous consultation. 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 traditional laws. In this work, we assist in designing governance structures, drafting governance documents, providing training, and over time, increasing the merging and implementing of traditional laws in the exercise of governance procedures consistent with Aboriginal rights and title.

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 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.

Pipelines, tankers and Aboriginal rights and title

We believe energy projects that may impact Aboriginal interests must undergo proper consultation and accommodation, and any infringements must be reconciled through consent or through meaningful consultation and justification. Environmental assessments which attempt to incorporate components of consultation or justification do not relieve the Crown from meeting its constitutional duties to aboriginal communities. Our legal services in this area extend to negotiations, consultation meetings, and hearings before the National Energy Board, the NEB’s Pipeline Arbitration Committee, Canadian Environmental Assessment Agency review panels, the BC Environmental Appeal Board, and all levels of court. We are currently representing First Nations in the national consultation on the Canadian Environmental Assessment Act 2012, the Navigation Protection Act, the Fisheries Act, and the National Energy Board 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.

Oil spills 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.

To support the creation of robust environmental protections, Ng Ariss Fong is acting for Heiltsuk First Nation, alongside other First Nations, in the Reference re: proposed amendments to the Environmental Management Act (the “Crude Oil Reference”). The Crude Oil Reference is about the constitutionality of British Columbia’s power to require environmental protection permits on projects like the Trans Mountain pipeline expansion. For First Nations, one key issue is the role of First Nations governments under the constitution. Another key issue is the need for “local” governments, including First Nations governments, to protect their lands and waters from the impacts of potential oil spills relating to inter-provincial pipelines.