HORSEMAN V. CANADA, 2015 FC 1149

HORSEMAN V. CANADA, 2015 FC 1149

Horseman sought to certify a class action suit on behalf of himself, his band and all the Numbered Treaties members on the grounds that Canada had failed to adhere to the intent of the Treaties with respect to annual Treaty Payments.  Specifically, that the amount of the payment should have been adjusted over time:  “in order to maintain a value equivalent to its buying power at the time each of the Treaties was made.”

In the event, Horseman failed to meet the requirements necessary to have the suit qualified as a class action suit. However. in rendering his decision, Mr. Justice Zinn canvassed not only those cases relevant to the certification of class action suits but also many of the core decisions  pertaining to Treaty and Aboriginal rights, notably:

Mikisew Cree First Nation v.Canada (Minister of Canadian Heritage) [2005] 3SCR, 388 [Mikisew]; re Treaty and Aboriginal Rights and the Duty to Consult;

Haida Nation v. British Columbia (Minister of Forests) [2004] SCC 73 [Haida]; re the spectrum  associated with the Duty to Consult;

Ke-Kin-Is-Ugs v. British Columbia (Minister of Forests) [2008] BCSC 1505 [Ke-Kin-Is-Ugs]; re the Duty to Consult and who Bears responsibility for the Duty;

Dene-Tha First Nation v. British Columbia (Minister of Energy and Mines) [2013] BCSC 977; re the Duty to Consult;

Beckman v. Little Salmon Carmack First Nation [2010] SCC 53; re the Duty to Consult and that uncertainty concerning Treaty and Aboriginal Rights does not preclude the issuance of a license;

Hupacasth First Nation v. British Columbia (Minister of Forests) [2005] BCSC 1712 [Hupacasth]; re the Duty to Consult and courts reluctance to interfere with regulatory decisions where substantial prejudice will occur to a third party  based solely on an assertion of an interference with Treaty or Aboriginal Rights;

Halfway River First Nation v. British Columbia (Minister of Forests) [1999] 4 CNLR, (BCCA); re use of the Duty to Consult as a means of obstruction;

Heiltsak Tribal Council v. British Columbia (Minister of Sustainable Resources Management) [2003] 19 B.C.L.R.  (4th) 107 (B.C.S.C. 1422); Re Duty to Consult and obstruction;

Behn v. Moulton Contracting Ltd. [2013] SCC 26 [Be3hn]; re Treaty right are collective but may be exercised by individuals and therefore have both a collective and individual aspect.

R v. Marshall [1999] 3SCR 456; re “Each treaty must be considered in its unique historical and cultural context.”

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