Expropriation under s. 35 of Indian Act (Can.) did not require Band’s consent

Federal court | Aboriginal Peoples

Crown relationship

Expropriation under s. 35 of Indian Act (Can.) did not require Band’s consent

Pipeline right-of-way through reserve of Indian Band was granted in 1955 to third-party company, through indenture. Respondent Minister of Indian Affairs and Northern Development consented to assignment of indenture to respondent company, executing assignment consent agreement. Applicant Band and its chief applied for judicial review. Application dismissed. Minister owed fiduciary duty to Band in deciding whether to consent to assignment of indenture and it also owed duty of good faith to company arising under indenture. Duty of good faith owed to company was subordinate to fiduciary duty owed to Band. Test used in expropriation under s. 35 of Indian Act (Can.) applied to assignment of interest that arose from expropriation. Minister must first determine that assignment of instrument was in public interest and then must ensure that Band’s interest in reserve was only minimally impaired. Minister did not have fiduciary duty until second stage of analysis, where consultation with Band was required. Section 35 did not require Band’s consent. Expropriation was made in proper manner for lawful purpose and was in public interest. Minister’s consent to assignment was continuation of initial recognition of public interest arising from expropriation. Minister’s consent to assignment was minimal impairment of Band’s use and enjoyment of its land. Assignment of indenture did not increase impairment of Band’s use of reserve land. Minister engaged Band many times during administrative proceeding. Minister discharged fiduciary duty owed to Band. Minister’s decision to consent to assignment of indenture was justifiable, transparent and intelligible and it met standard of reasonableness.
Coldwater Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (May. 30, 2016, F.C., E. Heneghan J., T-133-15) 267 A.C.W.S. (3d) 255.

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