Highlights and Trends
As the law relating to Indigenous peoples, and the application of that law, evolves so does the nature and type of Indigenous rights litigation. This bulletin highlights certain key Indigenous rights cases that were decided, heard, or commenced in 2020, and identifies overarching trends. These trends apply to varying degrees in different provinces and territories, but are all worth following as the law in this area continues to advance:
- Lengthy trials vs judicial reviews: Indigenous rights litigation has focused largely on challenges to project approvals or permits and the boundaries of adequate consultation. Increasingly, lawsuits seeking damages and other relief for title or rights infringement are before the courts. In British Columbia alone, there are three ongoing Indigenous rights trials of more than 100 days, and there are two lengthy trials underway in Ontario (see, e.g., Cowichan Tribes v. Canada in British Columbia, and Restoule v. Canada (Attorney General) in Ontario, described below).
- Expansion of claims: Indigenous rights litigation has expanded in terms of the causes of action advanced by Indigenous plaintiffs and the remedies sought. Indigenous plaintiffs are no longer limiting their claims to alleged failures of the duty to consult, breaches of fiduciary duty, or infringement of section 35 rights (i.e., Treaty rights, Aboriginal rights, Aboriginal title), but are advancing private law claims, including trespass and nuisance, arising from interference with their section 35 rights, as well as Charter breaches and other claims. These plaintiffs are seeking a broad spectrum of relief against Government and private parties that includes damages and injunctions against existing infrastructure (see, e.g., Peter Ballantyne Cree Nation v. Canada (Attorney General) and Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani Utenam), described below).
- Infringement claims based on cumulative effects: The cumulative impacts of industrial development have been forefront in Crown consultation and land management for years. More recently, Indigenous groups have commenced lawsuits against the Crown seeking declarations that these cumulative impacts have infringed rights they hold under historic treaties, and pursuing mandatory orders that would have an impact on the Crown's ability to approve future development. The trial of one of these lawsuits concluded in 2020, with the decision expected in 2021 (Yahey v. British Columbia, see also Lameman v. Alberta and Carry the Kettle First Nation v. Saskatchewan, described below)
- Asserted title to waterbeds: This asserted right may be the new frontier for Indigenous litigation. The issue is currently being litigated in a trial in Ontario and, depending on the result, could result in additional claims to waterbeds across the country (see Saugeen Ojibway Nation v. Canada, described below).
Below, we highlight notable Indigenous rights litigation in 2020 as well as cases to watch this year.
Supreme Court of Canada Hearings and Decisions
In 2020, the Supreme Court of Canada rendered one decision and heard two cases that will have implications to Indigenous rights issues:
R. v. Desautel (British Columbia)
This was a prosecution of Richard Lee Desautel under the Wildlife Act for hunting while not being a resident of British Columbia. Mr. Desautel lives in Washington State and is a member of the Lakes Tribe of the Colville Confederated Tribes. At the trial held in 2017, Mr. Desautel asserted he holds Aboriginal rights under section 35 as his traditional territory extends north of the U.S.-Canada border.
Three levels of court in British Columbia agreed with Mr. Desautel. 1 In October 2020, the Province argued their final appeal to the Supreme Court of Canada. The Supreme Court's decision, expected in 2021, will determine whether Indigenous groups located outside of Canada can nonetheless hold section 35 rights.
Southwind v. Canada (Ontario/Manitoba)
The Lac Seul First Nation (adherent to Treaty 3) initiated this action in 1991 seeking equitable compensation, punitive damages, and a declaration respecting their reserve lands that had been flooded by the construction of a dam at Ear Falls in 1929. The Federal Court found that Canada had breached its fiduciary obligations towards the Lac Seul First Nation and awarded the First Nation just over $30 million in equitable compensation, calculated by estimating the 1929 dollars of the lost reserve land, and taking the present value of that amount (approximately $15 million) as well as non-calculable losses (approximately $16 million). 2 In a split decision, the Federal Court of Appeal upheld the Federal Court's decision. The dissenting judge held that the lower court erred in its approach to calculating the compensation for the flooded land, holding that the lands potentially ought to have been valued based on their usefulness (namely, the development of a hydroelectric project). 3
The decision was appealed to the Supreme Court of Canada and argued on December 8, 2020. The Supreme Court of Canada's decision will provide guidance on equitable compensation for harm suffered by Indigenous groups and particularly loss of, or impact to, reserve land.
Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani Utenam) (Quebec) 4
In 2013, the Innu of Uashat and of Mani-Utenam near Sept-Îles and the Innu of Matimekush-Lac John near Schefferville ("Innu") brought an action against several mining companies in the Superior Court of Québec, asserting Aboriginal title to, and rights within, their ancestral territory, the Nitassinan, which spans Québec and Newfoundland and Labrador. The Innu seek a permanent injunction against the mining companies requiring them to cease their operations, $900 million in damages and a declaration that the mines constitute a violation of their Aboriginal title and other Aboriginal rights.
The mining companies, supported by the Government of Newfoundland and Labrador, argued the Québec court did not have jurisdiction to hear the claims in relation to the land within Newfoundland and Labrador. In a five-to-four decision, the Supreme Court of Canada found that the Superior Court of Québec had jurisdiction to hear the Innu claims, even those related to land in Newfoundland and Labrador, relying heavily on the sui generis nature of section 35 rights, access to justice principles and the honour of the Crown. The court noted jurisdictional rules ought to be interpreted flexibly when considering section 35 and that "the honour of the Crown requires increased attention to minimizing costs and complexity when litigating s. 35 matters and courts should approach proceedings involving the Crown practically and pragmatically in order to effectively resolve these disputes". 5
Court of Appeal Decisions
Key provincial appellate decisions decided in 2020 include the following:
West Moberly First Nations v. British Columbia (British Columbia, Treaty 8 Western Boundary litigation)
Since Treaty 8 was signed in 1899, there has been a long-standing dispute regarding the scope of the territory included in the Treaty. Treaty 8 describes the western boundary of the Treaty lands as "the central range of the Rocky Mountains ... to the point where it intersects the 60th parallel of north latitude." In this action, a group of Treaty 8 First Nations, supported by Canada, argued that the western boundary is the height of land dividing the waters that flow to the Arctic Ocean from the waters that flow to the Pacific Ocean (the Arctic-Pacific Divide), whereas British Columbia, the Kaska Dena Council and McLeod Lake Indian Band opposed this position, arguing the boundary is some distance to the east of the Arctic-Pacific divide, along the Rocky Mountains.
Both the trial court 6 and appeal court 7 agreed with the Treaty 8 First Nations and Canada, finding the boundary to be the Arctic-Pacific Divide. BC and McLeod Lake Indian Band filed for leave to appeal the decision to the Supreme Court of Canada, but that application was denied in January 2021.
Peter Ballantyne Cree Nation v. Canada (Attorney General) (Saskatchewan)
The Peter Ballantyne Cree Nation (adherent to Treaty 6) commenced an action in 2004 against Canada, Saskatchewan and SaskPower (a provincial Crown corporation), for the flooding of reserve land caused by the construction of dams in the 1930's and 1940's on the Reindeer River. In 2014, Canada, Saskatchewan and SaskPower applied for summary judgment on the basis that the claims were statute-barred. The Saskatchewan Court of Queen's Bench agreed, and dismissed all of the claims against the defendants. 8 On appeal, the Saskatchewan Court of Appeal largely upheld the decision, but allowed the First Nation's claims for continuing trespass to proceed to trial. 9
In 2019, SaskPower and Saskatchewan applied to dismiss the remaining claim for continuing trespass on the grounds that the land in question was not reserve land. The Saskatchewan Court of Queen's Bench agreed and dismissed the remaining claim against Saskatchewan and SaskPower. 10 The Cree Nation appealed this decision to the Saskatchewan Court of Appeal. The appeal was heard in December 2020, with a decision expected in 2021.
Strateco Resources Inc. v. Attorney General of Québec (Québec)
Strateco Resources Inc. ("Strateco") brought legal proceedings against the Government of Québec for its refusal to issue authorizations for its advanced uranium exploration project, claiming approximately $180 million in damages, plus $10 million in punitive damages. Québec's refusal to issue the approvals was based, in part, on the fact that the proposal has not garnered "social acceptability" from the Cree community.
In January 2020, the Québec Court of Appeal 11 dismissed Strateco's application finding that the Minister has broad discretionary powers to make such decisions and was entitled to base his refusal to issue the authorization on the lack of social acceptability. The Court noted the Minister's refusal is not tantamount to giving the Cree a right of veto on projects. On October 15, 2020, the Supreme Court of Canada denied leave to appeal to Strateco.
Cases at Trial
There are several ongoing trials related to Indigenous rights across the country, including the following:
Yahey v. British Columbia (British Columbia)
The trial of Blueberry River First Nations' action against British Columbia concluded in 2020 and a decision is expected in 2021. Blueberry River is seeking a declaration that the Province breached its obligations under Treaty 8 by permitting cumulative impacts of industrial development in their traditional territory. Blueberry River asserts that "the cumulative impacts of these activities have consistently and increasingly pushed the Blueberry River First Nations to the margins of their traditional territory, and have now left the members with almost no traditional territory within which to meaningfully pursue their constitutionally protected cultural and economic activities." 12
Blueberry River seeks a permanent injunction to enjoin the Province from authorizing further industrial development in certain areas of Blueberry River's traditional territory. The Blueberry River First Nations applied for an injunction to stop the Province from allowing further industrial development in its traditional territory pending trial of the civil claim on two occasions. 13 This decision will be the first to squarely consider historic Treaty infringement in the context of the cumulative impacts of several different development activities and authorized projects.
Cowichan Tribes v. Canada (Attorney General) (British Columbia)
Another ongoing trial in the BC Supreme Court is the Aboriginal title claim brought by the Cowichan Tribes and others. In this action, the Cowichan claim title over parts of the City of Richmond and fishing rights for food in the south arm of the lower Fraser River. 14 Despite being located on Vancouver Island today, the Cowichan claim they are the historic rights holders of certain portions of Richmond, including private land. 15 Several other First Nations have joined the action opposing the relief sought by the Cowichan, asserting rights to some of the territory claimed by the Cowichan.
The trial commenced in September 2019 and is expected to take an estimated 400 days.
Restoule v. Canada (Attorney General) (Ontario)
This action was brought by a group of First Nations who, in 1850, were promised an annuity in perpetuity in exchange for surrendering their lands under the Robinson Treaties. The First Nations allege the treaty annuity promises them a share of the revenues from the territory surrendered.
This trial was commenced in 2017 and was split into three stages. Following Stage One (heard in 2017/2018), the Ontario Superior Court found that the provincial and federal Crowns have an obligation to increase the annuities when the economic circumstances warrant it. The Court held that the common intention of the parties was to share the wealth of the land and resources within the territory. 16
In Stage Two (heard in 2019), the First Nations sought summary judgment on a number of defences raised by the Crowns, including limitations and Crown immunity. The Ontario Superior Court accepted the First Nations' arguments, finding Ontario's limitations legislation did not apply to the claims, and that the equitable claims against the Crown were not subject to Crown immunity, noting that not all wrongs are covered by Crown immunity.
Both the Stage One and Stage Two decisions have been appealed by Ontario. The Stage One and Stage Two appeals are set for January 2021 and June 2021 respectively. The Stage Three trial, in which damages will be assessed, is tentatively scheduled for September 2021.
Saugeen Ojibway Nation v. Canada (Ontario)
The Saugeen Ojibway Nation, comprised of the Saugeen First Nation and the Chippewas of Nawash Unceded First Nation, jointly launched two claims against Canada and Ontario asserting title to large portions of the lakebed covered by Georgian Bay and Lake Huron as well as a claim seeking redress from Canada and Ontario for a broken promise to protect their lands.
Both Ontario and Canada argue that the Nation does not hold, and never held, Aboriginal title to Lake Huron or the Georgian Bay. These waters were used by other Indigenous groups and freely used by the British and French before the assertion of European sovereignty. The trial commenced in April 2019 and closing arguments began in October, 2020. The majority of the 97 days of trial took place in a Toronto courtroom, with some of the hearing taking place in the two First Nations' communities. A decision is expected in 2021 (or early 2022) and is expected to be the first ruling on whether Aboriginal title can extend to land under water and, if so, what rights such title includes.
Other Ongoing Litigation
Lameman v. Alberta (Alberta)
This action is similar to Yahey v. British Columbia in that it is an action by a Treaty First Nation (in this case, the Beaver Lake Cree Nation in Alberta, an adherent to Treaty 6) against the Crowns for allegedly breaching their Treaty rights by permitting development that, cumulatively, impairs their traditional way of life and infringes their Treaty rights. The Beaver Lake Cree seek damages and injunctive relief against the Crown, restraining the Crown from authorizing any further developments or activities in their core traditional territory, until they have been adequately consulted on cumulative effects.
This action was commenced in 2008 and the trial scheduled for 2024. In 2019, the Nation brought an application for advanced costs from Canada and Alberta, in order to bring the action to trial. This order was granted by the Alberta Court of Queen's Bench, but overturned by the Alberta Court of Appeal in June 2020. 17 In January 2021, the Supreme Court of Canada granted leave to the Nation to hear the appeal.
Carry the Kettle First Nation v. Saskatchewan (Saskatchewan)
Like Beaver Lake Cree Nation (in Lameman v. Alberta) and Blueberry River First Nations (in Yahey v. British Columbia), Carry the Kettle First Nation commenced an action against the Crowns alleging the cumulative effects of development have unjustifiably infringed its rights under Treaty 4. Carry the Kettle asserts this development has been approved in large part without proper consultation and without due regard for their Treaty rights. They allege that their members cannot effectively exercise their rights, and are forced to travel great distances to hunt.
Carry the Kettle seeks an injunction restraining the governments from "acting unconstitutionally", and an order requiring the governments to consult the First Nation before authorizing any new development on their traditional territory. The Nation asserts that the Crown must work with them to restore and secure the meaningful exercise of their treaty rights now and into the future. They also seek damages or equitable compensation or an accounting for the various breaches of the Crowns.
Mitchikanibikok lnik (Algonquins of Barriere Lake) v. Attorney General of Québec (Government of Québec and Minister of Energy and Natural Resources) (Québec)
In December 2019, Mitchikanibikok lnik (Algonquins of Barriere Lake) filed an application for judicial review and a permanent injunction challenging the constitutionality of certain sections of the Québec Mining Act. The case arose in the context of a settlement between the Government of Québec and Copper One, in which the government paid $8 million for Copper One's claims in the alleged unceded Indigenous territory of the Mitchikanibikok Inik (Algonquins of Barriere Lake) in the midst of fierce opposition to Copper One's mining project. The claims were transferred to SOQUEM (a subsidiary of Investissement Québec established to promote the exploration, discovery, and development of the province's mineral resources).
The Indigenous applicants seek a declaration that the transfer of those claims to SOQUEM breached Québec's fiduciary duty and its duty to consult and accommodate. They seek an order that the claims held by SOQUEM remain suspended until such time as the parties negotiate a just remedy for these breaches, and an order that Québec refrain from issuing, renewing, or transferring any mining rights in its alleged unceded Indigenous territory prior to consultation and appropriate accommodation.
1 R v. Desautel, 2017 BCPC 84. See our previous bulletins on this case: "BC Supreme Court Upholds Aboriginal Rights for Washington-based Aboriginal Group" (February 2018) and "BC Court of Appeal Affirms Right to Hunt for Indigenous Group Located Outside of Canada" (May 2019).
2 Southwind v. Canada, 2017 FC 906 at para. 511.
3 Southwind v. Canada, 2019 FCA 171 at paras. 94-97.
4 Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4. See also Fasken Bulletin, "Quebec Courts Have Jurisdiction Over Aboriginal Rights Claims in Neighbouring Province" (March 2020).
5 Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 at para. 51.
6 West Moberly First Nations v. British Columbia, 2017 BCSC 1700. See also Fasken Bulletin, "Court Rules on Treaty 8 Boundary Dispute" (October 2017).
7 West Moberly First Nations v. British Columbia, 2020 BCCA 138. See also Fasken Bulletin, "BC Court of Appeal Affirms the Western Boundary of Treaty 8 is the Arctic-Pacific Divide" (May 2020).
8 Peter Ballantyne Cree Nation v. Canada (Attorney General), 2014 SKQB 327.
9 Peter Ballantyne Cree Nation v. Canada (Attorney General), 2016 SKCA 124, leave to appeal denied 2017 CanLII 38581 (SCC).
10 Michel v. Canada (Attorney General), 2019 SKQB 334 at para. 187.
11 Ressources Strateco inc. c. Procureure générale du Québec, 2020 QCCA 18
12 Notice of Civil Claim filed March 3, 2015, Part 1, para. 6.
13 Yahey v. British Columbia, 2015 BCSC 1302; Yahey v. British Columbia, 2017 BCSC 899.
14 Cowichan Tribes v. Canada (Attorney General), 2016 BCSC 420 at para. 1.
15 Cowichan Tribes v. Canada (Attorney General), 2016 BCSC 1660 at paras. 45 and 46; Cowichan Tribes v. Canada (Attorney General), 2017 BCSC 1575 at paras. 3, 8.
16 Restoule v. Canada (Attorney General), 2018 ONSC 7701 at para. 466.
17 Anderson v. Alberta (Attorney General), 2020 ABCA 238.
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