Federal Appeal

Aboriginal Peoples

No error in conclusion that duty to consult extended to duty to meet, hear, discuss, take First Nations’ concerns into meaningful consideration

Respondents brought application for judicial review to set aside decision by Canada to transfer Kapyong Barracks to non-agent Crown corporation which disposes of surplus property for federal government. Barracks located on lands respondents claimed to have right to purchase in priority to other potential purchasers. Respondents expressed interest in Barracks, but Canada proceeded with “strategic disposal process”. Respondents alleged Canada thereby breached its duty to consult. Federal Court agreed and granted order restraining sale until Canada demonstrated it had fulfilled that duty. Canada appealed. Federal Court held that Canada did not owe duty to consult to Sagkeeng and Sandy Bay Ojibway First Nations; they cross-appealed. Appeal allowed with respect to remedy only; cross-appeals dismissed. Canada did not owe duties to consult Sagkeeng and Sandy Bay Ojibway First Nations; no evidence to support that either had land claim or unfulfilled per capita reserve land entitlement. Canada conceded it had duty to consult other respondents. No error in conclusion that duty to consult entailed not just minimal aspects of obligation but extended to duty to meet, to hear and discuss, to take First Nations’ concerns into meaningful consideration and to advise as to course of action taken and why. Federal Court properly recognized that scope and nature of duty affected by entire factual matrix, guided by treaty land entitlement agreements and jurisprudence as well as concepts of honour, reconciliation and fair dealing. Honour of Crown in its dealings with Aboriginal peoples of paramount importance and history of dealings between parties relevant. In lieu of full satisfaction of unfulfilled right to receive lands under Treaty No. 1, respondents had rights under treaty land entitlement agreements concerning lands that may come available. Canada committed to that purpose by signing agreements and required to engage with respondents in close and meaningful communication. It was required to give respondents relevant information in timely way, respond to relevant questions, consider carefully concerns, representations and proposals and advise as to ultimate course of action and why. Ultimate decision must, at minimum, be acceptable and defensible. Canada could not transfer Barracks until duty to consult fulfilled. Canada did not fulfil its duty, failing to notify respondents when it closed Barracks, failing to respond to expressions of interest, failing to consult despite knowing of respondents’ interest, failing to provide information and making decision to sell without responding to respondents in meaningful way.

Canada (Attorney General) v. Long Plain First Nation (Aug. 14, 2015, F.C.A., J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and David Stratas J.A., File No. A-34-13) Decision at 225 A.C.W.S. (3d) 1 was reversed in part.  256 A.C.W.S. (3d) 502.

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