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.