Treaties and Land Claims: Current Problems

Supreme Court

January 22, 2021

AB, Fed. Govt.

Beaver Lake Partial Advance Cost Award

LAC-LA BICHE, AB: Beaver Lake First Nations – The Supreme Court of Canada granted leave to appeal the decision of the Alberta Court of Appeal overturning Beaver Lake Cree Nations’ partial advanced cost award. After ten years of litigation, including 5 years where Alberta and Canada unsuccessfully tried to strike its claim, the Beaver Lake Cree could no longer afford the litigation. Recognizing it was undisputed that the Beaver Lake Cree are financially impoverished and that its publicly important, meritorious case deserved to be heard, in 2019, the Alberta Court of Queen’s Bench granted the Beaver Lake Cree a partial advanced cost order that would allow it to continue its case to trial. However, in 2020, during the pandemic, Alberta and Canada successfully appealed the decision.

For over ten years, the Beaver Lake Cree Nation has endeavoured, at a cost of $3 million. Half of the funds were from generous donors who understand the importance of these matters being heard by the courts. Knowing that this case rests on environmental justice, health and protection, they continue to support Beaver Lake’s efforts to enforce its Treaty rights, which ultimately protects the environment now and for the generations to come.

It argued the Alberta Court of Appeal applied the wrong test in determining whether or not the Beaver Lake Cree could genuinely afford the litigation, and that courts are divided on whether affordability means the Nation must exhaust all funds potentially available, including by liquidating assets, or whether other priorities the Nation has for the funds must be considered. The Beaver Lake Cree argued clarity from the Supreme Court was required on how the test for advanced costs applies to a First Nation government charged with managing poverty. In considering whether a First Nation can afford to litigate a meritorious and publicly important constitutional rights case, the court must consider that it is not open to a First Nation government to exhaust all the Nation’s available funds in favour of a singular cause. Rather, affordability requires consideration of the reasonable choices a First Nation government is required to make to ensure its community endures, and its members are not left destitute. The Nation will argue the partial advanced costs award should be restored so a decision on its novel Treaty Rights case can be rendered.

February 2, 2019

Fed. Govt.

Delgamuukw decision and the Tsilhqot’in decision

Policy Options – Continued refusal to accept Aboriginal title as defined by the Supreme Court of Canada in the Delgamuukw decision and the Tsilhqot’in decision. The Supreme Court of Canada similarly recognizes in Delgamuukw that constitutionally protected Aboriginal title is not created by Canadian law; rather, Aboriginal title “arises from the prior occupation of Canada by aboriginal peoples.” (Policy Options Politique)

Canada’s Constitution and judgments of the Supreme Court of Canada recognize the pre-existing nature of Aboriginal rights and title, which are interwoven with Indigenous laws and governance. Furthermore, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which both the federal and BC governments have committed to implement, recognizes “the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.”

September 21, 2020

Fed. Govt.

First Nation constitutional orders are distinct but equal to Euro-Canadian laws

The Assembly of Manitoba Chiefs (AMC) – will be intervening at the Supreme Court of Canada (SCC) in a significant and potentially transformational hearing to argue that First Nation constitutional orders are distinct but equal to Euro-Canadian laws. On the surface, the case is about the Greenhouse Gas Pollution Pricing Act, the federal government’s carbon tax, and whether it intrudes on provincial jurisdiction.

However, neither the federal nor provincial governments acknowledge the existence of First Nations laws. The AMC, represented by the Public Interest Law Centre (PILC), will argue that the Supreme Court has a unique opportunity to address a much deeper reality. The Court will address the most fundamental constitutional question of our time – the means of addressing climate change. The AMC will propose an analysis, which must recognize the existence of First Nations constitutional orders. The AMC cautions against the incorporation of First Nations laws within the existing Euro-Canadian federalism analysis to address the constitutional question. Instead, the AMC proposes a return to the relationship as it was originally intended by Treaties – one between equal nations with distinct legal traditions.

MC Grand Chief Arlen Dumas said, “First Nations people and laws have always been here. These laws continue to govern First Nations’ relationships with the Creator, Mother Earth and all living beings. They are grounded in mutual respect and underpin the Treaty relationship. Our First Nations laws constitute Canada’s first constitutional order, alongside the French Civil Law and English Common Law. This is a constitutional debate that must acknowledge our nation-to-nation relationships and help frame reconciliation.”

The AMC contends that this court case exposes an outdated, inaccurate and destructive narrative about Canada. First Nations laws have been recognized by the Supreme Court, however recent lower court decisions have sent contradictory signals about the relationship between Euro-Canadian laws and First Nations laws. This lack of clarity has led to a patchwork of inconsistent decisions.

“This court case offers an opportunity for a fundamental paradigm shift in the relationship between First Nations and non-First Nations people,” says Joëlle Pastora Sala, PILC attorney, who will argue at the Supreme Court via Zoom from Winnipeg. “We can create a more meaningful implementation of reconciliation – grounded in the spirit and intentions of treaties. Reconciliation, as outlined in the Truth and Reconciliation Commission’s Calls to Action, requires respect for First Nations laws as equal and distinct from Euro-Canadian laws. The Supreme Court has a key role to play in shaping the path forward.”

July 16, 2021

Fed. Govt.

Lac Seul First Nation

iPolitics –The Supreme Court of Canada has ruled 8-1 that a $30-million award to the Lac Seul First Nation, located in northwestern Ontario, to cover the federal government’s intentional flooding of its reserve land in 1929 was insufficient, and has sent the case back to trial to be re-evaluated. In doing so, the top court has also established a framework for how to compensate Indigenous groups for historic injustices suffered decades ago, or, in this case, almost a century ago. The Lac Seul band, which at the time represented about 700 Annishinaabe people, was not consulted, compensated, or even informed about the destruction of its timberland, hay fields, wild rice crops, houses, and gardens. More than 50 grave sites were washed away, as well.
Supreme Court Justice Andromache Karakatsanis, writing for the majority, overturned the conclusions of the lower federal courts. But Karakatsanis said that “Indigenous interests in land … are at the heart of the Crown-Indigenous relationship, and are central to Indigenous identity and culture.” They are different, in kind, than private breaches of contract, she added.
Canada’s fiduciary duty required it to capture the full potential value of the land for the Lac Seul band, she continued. “To that end, the highest and best use at the time of the government’s breach was the land’s intended use as water storage for hydroelectricity generation.”

October 28, 2020

Fed. Govt.

Lac Seul First Nation

Assembly of Manitoba Chiefs (AMC) – Supreme Court of Canada grants intervener status to AMC, along with many others, in the Southwind case. Lac Seul Band launched the suit against the Federal Government for breaching their fiduciary duty when they flooded reserve land to advance a hydro-electric project. This project would see massive profits for the government, while leaving the First Nation of Lac Seul destitute and without reparations or adequate compensation for the devastation of their land and lost opportunity. Lac Seul, however, subsequently appealed the Federal Court of Appeal decision stating that the compensation amount should have been calculated based on both significant cultural loss and on the use of the flooded land for hydro profits, meaning that the ordered amount did not accurately reflect the loss suffered.

“The Federal Government owes all First Nations a fiduciary duty which is a long standing obligation to act in the best interests of First Nations. Clearly, profiting on the backs of First Nations to their detriment is not honouring the fiduciary obligation and Lac Seul should be compensated to fullest extent considering any and all losses suffered by the Nation,” said AMC Grand Chief Arlen Dumas.

Grand Chief Dumas concluded, “This appeal marks a significant opportunity for Supreme Court to provide clarity on how, in light of the unique Crown-First Nations relationship, equitable compensation can best be assessed when the Federal Government has breached its treaty obligations or fiduciary duty to a First Nation.”

September 25, 2020

Fed. Govt.

Lac Seul First Nation

Dryden Now – In 1929, the Ear Falls Dam was built to supply hydroelectric power to Ontario and Manitoba, but flooded over 11,000 acres of Lac Seul First Nation’s reserve lands and burial sites that same year. Chief Derek Maud says it’s disappointing and unacceptable that Canada has not addressed the outstanding issue, and he is once again calling on Ontario, Manitoba and Canada to develop an immediate shoreline and grave site protection strategy.

“For over 90 years, this issue has been ignored by Canada, Ontario and Manitoba. It continues to be ignored,” said Chief Maud.

April 23, 2020

Fed. Govt.

Lac Seul First Nation

First Peoples Law -The Supreme Court of Canada granted Lac Seul First Nation’s application for leave to appeal the Federal Court of Appeal’s decision in Southwind v. Canada. The Supreme Court is expected to clarify how equitable compensation is calculated where a First Nation’s reserve lands have been taken or damaged by the Crown in the absence of a valid surrender or expropriation. The decision could directly affect First Nations across Canada dealing with claims relating to the unlawful taking of their reserve lands.

Concerns have also been raised that the Court’s approach is inconsistent with the provisions governing compensation for specific claims under the Specific Claims Tribunal Act, and that going forward, the Crown could rely on the lower court’s interpretation of the ‘appropriation’ provision in Treaty #3, which was arrived at in the absence of a proper evidentiary record setting out the parties’ respective understandings of the terms of the Treaty.

The Supreme Court’s decision is expected to address these issues and provide clarity. In particular, the Court will be asked to consider the application of fiduciary principles in respect of the taking of reserve lands without a surrender or expropriation and the determination of equitable compensation in this context.

October 1, 2021

AB, Fed. Govt., ON

Supreme Court validates Honour of the Crown

Métis Nation of Ontario, Métis Nation of Alberta – The Supreme Court of Canada released its decision in City of Toronto v Ontario (Attorney General). This case was about the fairness of a municipal election in one city, but the decision also raised the issue of how Canada’s Constitution is to be interpreted and the role of unwritten constitutional principles in protecting the rights of all Canadian citizens, including the unique rights and interest of Indigenous peoples.

The Métis Nation of Ontario (“MNO”) and Métis Nation of Alberta (“MNA”) jointly intervened in the case to protect the unwritten constitutional principle of the honour of the Crown that is owed to Indigenous peoples. While the 5/4 majority of the Supreme Court held that “unwritten constitutional principles cannot serve as the basis for invalidating legislation,” the majority went on to recognize the unique nature of the honour of the Crown and held the following:

The unwritten constitutional principle of the honour of the Crown is sui generis. As correctly noted in submissions of the interveners the Métis Nation of Ontario and the Métis Nation of Alberta, the honour of the Crown arises from the assertion of Crown sovereignty over pre-existing Aboriginal societies, and from the unique relationship between the Crown and Indigenous peoples. We need not decide here whether the principle is capable of grounding the constitutional invalidation of legislation, but if it is, it is unique in that regard.
The dissenting opinion, written by retiring Justice Rosalie Abella, went even farther, noting that “of course, the unwritten constitutional principle of the honour of the Crown has been affirmed by this Court and accorded full legal force.”

The honour of the Crown is extremely important in advancing reconciliation and its must be given full legal force so Métis governments and other Indigenous peoples can rely on the promises governments make to us every day,” said MNA President Audrey Poitras.

MNO President Margaret Froh added, “Our Métis governments are embarking on a new era of rights recognition and nation-to-nation, government-to-government negotiations and relationships with the Crown. The Supreme Court of Canada’s decision makes it clear that Parliament simply passing legislation that does not even consider Indigenous rights or ignores the promises the Crown has made to our governments will not be simply be ignored by the courts.”

Métis lawyer Jason Madden, who represented both the MNA and MNO noted, “The honour of the Crown, as a constitutional principle, is playing an increasingly important role in the development of Aboriginal law generally as well as moderating the relationship between governments and Indigenous peoples as the national project of reconciliation continues.”

“We are pleased that the entirety of the Supreme Court of Canada recognizes the unique purpose of the honour of the Crown, as a constitutional principle, and that its full legal force has been once again confirmed and protected by the highest court in Canada,” concluded Madden.

July 2, 2020


Trans Mountain Pipeline Appeal

Vancouver (Musqueam, Squamish and Tsleil-Waututh Territory- The Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band – have been denied leave to appeal by the Supreme Court of Canada. “We are extremely disappointed by today’s decision by the Supreme Court of Canada,” said Chief Leah George-Wilson. It reduces consultation to a purely procedural requirement that will be a serious barrier to reconciliation.” Although today’s decision marks the end of the road for this legal challenge, First Nations have vowed to explore all legal options to protect their rights, land, water and climate.

The impact of Coldwater First Nation v. Canada 2020 FCA 34 (“Coldwater decision”) of Feb. 4, 2020 is to weaken the constitutional duty to consult to “a procedural duty to provide reasons Instead of looking at what happened during consultation to determine whether it was meaningful and upheld the honour of the Crown (the test for meaningful consultation), the Federal Court of Appeal (FCA) limited their review to the reasonableness of Cabinet’s own assessment of whether it had fulfilled its duty to consult and accommodate. The court held that Cabinet’s decision, including the outcome reached and justification for it, was reasonable, relying on Cabinet’s own decision document and accompanying explanatory note.

Because the Canadian government also owns the TMX project, Cabinet’s assessment of the adequacy of their own consultation should not invite the level of deference conferred to decision makers in Vavilov.

April 7, 2020


Trans Mountain Pipeline Appeal

The Squamish Nation, Tsleil-Waututh Nation, the Ts’elxwéyeqw Tribes and Coldwater Indian Band – announce they are seeking leave for appeal to the Supreme Court of Canada. These four First Nations have fought and challenged the Trans Mountain Expansion (TMX) Project through every Federal court. They now intend to seek a challenge at the Supreme Court of Canada. The First Nations are challenging the adequacy of Indigenous consultation leading up to the second approval of the oil pipeline project.

“The Supreme Court of Canada needs to deal with the Federal Court of Appeal’s decision that essentially lets the government be the judge and jury of its own consultation efforts. We need the opportunity to address the flawed consultation and engagement conducted by the Federal government, given the strength of rights and title of the Squamish People to Burrard Inlet and Vancouver. Indigenous peoples have a constitutional right to meaningful consultation and the courts must scrutinize that process. This flawed decision cannot stand, and we must challenge it, not just for us but for any future project that may be challenged by First Nations,” said Khelsilem, Squamish Nation Spokesperson and Councillor.