Key Supreme Court Decisions

Key Supreme Court Decisions

We are witnessing a recent trend of Courts and Tribunal decisions, which have increasingly found in favor of First Nations, particularly recognizing Aboriginal and Treaty rights in the area of Lands and Resources. Much of the litigation involves the government’s lack of consultation and/or accommodation when it comes to resource development within First Nations’ territories. In turn, this has placed a heavy burden on resource and land developers to consult and accommodate First Nations, whereas in the past, this was not the case. Although it is the governments who have the duty to consult and/or accommodate First Nations, they have delegated procedural aspects of consultation onto the resource and land developers. Even though in many cases First Nations have been successful in the courts, there have been losses too, and often this is a result of taking cases forward without the best fact situation or argument. And even when the courts side with the First Nations, all levels of government often ignore the decisions of the courts, or take a very narrow view of the decision, leaving no other choice but for the First Nations to further litigate. A brief discussion of some of the more recent decisions will be discussed in this section, and implications for First Nations in Saskatchewan.

The Tsilhqot’in decision was released in 2014. It is a British Columbia case wherein the Supreme Court of Canada (SCC) found that the First Nation had established Aboriginal Title over the claim area. This case involves forest licenses which were issued by the province within the First Nations’ territories. The First Nations had always maintained that the land in questions was their own. The SCC found that once Aboriginal Title is established, the First Nations have the exclusive right to decide how the land is used and has the right to benefit from its use. In addition, the Crown must justify any incursions on such lands. The SCC went so far as to say that in order to avoid allegations of infringement, the government should obtain the ‘consent’ of First Nations with respect to their established Aboriginal Title lands, and that provincial laws do not apply on such lands. 

Tsilhqot’in generally impacts all claims, as it establishes a high standard for the Crown where s. 35 rights are concerned, given that s. 35 rights include Aboriginal and Treaty rights. It also reaffirms both levels of governments’ duty to consult and accommodate where assertions of titled or claimed areas are made, but are not yet proven, and could arguably apply to traditional lands used by the First Nations. In addition, the Crown cannot simply rely on “broader public interests”, such as economic benefits, to the detriment of the First Nations. Examples of this have occurred in Saskatchewan whereby the Province denied TLE First Nations the right to purchase economically valuable lands, with the Province using the “broader public interests” argument. As well, this decision may impact those First Nations who have not yet entered Treaty with the Crown, if the First Nations can prove occupation before sovereignty, continuity, and exclusivity.

Another interesting decisions in 2014 was that of Keewatin v. Minister of Natural Resources. This decision involved the province’s issuance of forestry licenses again, within the First Nation’s traditional lands. The First Nation launched an action to set aside the forestry license on the basis that it violated their Treaty #3 harvesting rights. The trial judge found in favor of the First Nation, particularly that it limited the First Nation membership’s harvesting rights pursuant to Treaty. The province appealed and the Ontario Court of Appeal disagreed with the trial judge. Keewatin appealed to the SCC, and at issue was whether the province has the right to “take up” Crown lands in the First Nation’s trap line areas. The FSIN intervened in this case at the SCC level, challenging the limitation (or extinguishment) of First Nations’ inherent and Treaty rights, as well as challenging the continued devolution of federal powers onto the provinces. Unfortunately, the SCC dismissed the Keewatin appeal and found that the province does have the power to “take up” lands under Treaty 3. However, the right to take up lands is burdened by the governments’ obligations to First Nations. Both levels of government are responsible for fulfilling these promises when acting within the divisions of powers. Any interests that may impact the First Nations’ interests must meet the standards as established in Mikisew, particularly that the honor of the Crown must be upheld. And if the taking up of land does not uphold the honor of the Crown, it will be an infringement of Treaty, although the infringement of Treaty was not argued in this case.

This case may at first seem that it gives the province exclusive powers over the land and its resources, which it does, but it limits the province to enact legislation, or make any decisions, which may infringe First Nations treaty harvesting rights. This judgment can be interpreted to ensure that First Nations’ rights and interests are strictly dealt with by the Province, which the SCC said has the same obligations of the federal governments. Both levels of government have the obligation to ensure that Treaty rights are fulfilled. The province has always indicated that Treaty obligations belong to the federal government, other than that which is to provide Treaty lands, pursuant to the Natural Resources Transfer Agreement 1930. This judgment now states that the provincial Crown is as obligated to honor and uphold the Treaties to the same degree as the federal Crown, and such may lead to many questions of treaty infringement within Saskatchewan alone.

The Daniels decision was released by the SCC in April 2016. This case was launched in 1999 by a Metis activist, who sought three (3) declarations: that Metis and non-status Indians are “Indians” under s. 91(24) of the Constitution Act; that the federal Crown owes a fiduciary duty to Metis and non-status Indians; and that Metis and non-status Indians have the right to be consulted and to be negotiated with. The SCC granted the first declaration, specifically that Metis and non-status Indians are under s. 91(24), and declined to make the 2nd and 3rd declarations, as it would be restating law.

The Daniels decision is solely about jurisdiction and not rights. It does not grant the Metis and non-status Indians status under the Indian Act, nor does it grant either group any material benefits other than those they had before the decision. In terms of lands of resources, where Metis and non-status Indians are able to establish a connection to a specific area, they may be included in consultations with government, which likely extends to natural resource development. With respect to harvesting rights, the province is already working with the Metis as a result of the Powley decision. This case does not affect the ongoing negotiations with the province. With respect to specific land claim settlements including TLE, it is possible the Daniels decision could be used by Metis or non-Status groups to block the transfer or sale of Crown lands to First Nations, by arguing that the transfer of these lands to reserve could hinder future land claim settlements – although it is not certain whether the Province or Federal government would accept this argument. In terms of funding, this decision may affect the ‘envelope’ in that the federal government will have to justify any distinction in the level of funding/services it provides to status, non-status, and Metis peoples. And finally because this case was only about jurisdiction, it is almost certain to result in more litigation in terms of Metis and non-Status Indian rights and the obligations the Federal Government has to them.