Quote:
Originally Posted by 5seconds
The road pre-dates not only the City of Calgary and the Province of Alberta, but it also predates Treaty 7, and I would speculate that it existed before European contact.
All Nations in Canada enjoy constitutionally protected 'Aboriginal Rights'. In the case of the Tsuu T'ina, I believe that unfettered access at this location could well be argued as an Aboriginal Right. The Supreme Court has upheld the need to consult and accommodate with First Nations on any projects or decisions that have the potential to impact on Treaty and Aboriginal Rights, even in cases where the projects are adjacent to, but not even actually on, the reserve. That's not to say that the road absolutely could not be closed, but it would have to go through consultation and accommodation first, and could not be done unilaterally. Even then, accommodation might mean that the road could have to be kept open as long as it was needed by the Nation. As this has never been tested, it is not entirely clear, but the Nation has much of the law and history on it's side.
Some commentators have even argued that the Nation would be within their rights to build a road outside of the reserve to connect to a public road so long as the road was located on Crown land. I am not sure this has been tested in court.
I have written about this here: http://calgaryringroad.wordpress.com...gaining-chips/ |
Thats a great blog and very well done!
I'm just wondering whether having access at a particular location is a right though? Is there legal precedent of this? What if the city wanted to make changes on their own land....are they precluded to do so? I would suggest that having a road in a specific place is a fairly tenuous definition of a right, but I could definitely be wrong about that.