Recent Court Decisions

Oct 15, 2015 – 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.”

July 12, 2014Grassy Narrows First Nation and Wabauskang First Nation vs Ontario

 In addition to the clarification of Constitutional Law and the division of Constitutional rights and obligations as it pertains to an assertion of infringement of Treaty or Aboriginal rights, this case has other significant outcomes. For decades, at negotiating tables, Aboriginal negotiators have adopted the position that their ancestors signed Treaty with the Imperial Crown and that Canada (by which is meant the Federal Government) is the only legitimate interlocutor when Treaty and Aboriginal rights are involved.  Therefore, Provincial Government(s) are present at any such negotiation on sufferance and not an active player. The Court clearly and finally disposes of that notion by being clear that a Provincial Government, exercising its powers under the Constitution (in this case the granting of a forestry licence) on lands which are subject to Treaty is fully within it’s powers to do so.  With this clarification come two significant outcomes.  First; Aboriginal peoples who feel aggrieved by an exercise of legitimate Provincial Constitutional power must take the issue up with the Province, and, second, the Province bears all of those obligations of fair dealing ordinarily associated with the “Honour of the Crown. Here is the Supreme Court Decision for Grassy Narrows First Nation and Wabauskang First Nation vs Ontario

June 27, 2014 – Tsilhquot’in Nation vs British Columbia
The findings of this case are set out in the six points set out by the Court in opening paragraphs of the summary of judgement. What is new and ground breaking is the Courts finding that, in the absence of an existing Treaty between an Aboriginal group and the Crown, it is possible for an Aboriginal group to successfully assert title to a large area of land if they can satisfy the tests set out for the establishment of title set out in previous decisions.  This goes well beyond previous successful instances of assertion of title to very limited and geographically specific tracts of land.  This decision has great implications for non-Treaty areas of Canada, most especially British Columbia. Assertions of “Aboriginal Title” are bound to come forward from Aboriginal groups already subject to Treaty but seeking to expand upon the findings of the Court.

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