Bridget Gilbride

A citizen of a self-governing Indigenous First Nation challenged a residency requirement in the First Nation's constitution requiring its Chief and Councillors to reside on settlement land or relocate there within 14 days of election.

The majority held that the Charter applies to the First Nation as a government by nature under s. 32(1), that the residency requirement constitutes a prima facie infringement of the appellant's s. 15(1) equality right, but that s. 25 of the Charter shields the requirement from abrogation or derogation because it protects Indigenous difference tied to ancient land-based governance practices.

Martin and O'Bonsawin JJ. dissented on the appeal, finding the s. 15(1) claim must succeed and s. 25 does not shield internal governance rules from Charter claims brought by community members.

Rowe J. dissented on the cross-appeal, finding the Charter does not apply to the First Nation's exercise of its inherent self-government right.

The appellants, individual members of the Fort Nelson First Nation, blocked a logging company's access to timber sites after the Crown granted logging licences.

Sued in tort, they defended on the basis that the licences were issued in breach of the duty to consult and violated their treaty rights under Treaty No. 8.

The Supreme Court of Canada held that the duty to consult is owed to the Aboriginal group collectively, and absent authorization from the First Nation, individual members cannot assert a breach of that duty on their own.

The Court declined to make a definitive pronouncement on whether individual members could assert treaty rights in these circumstances, but ultimately dismissed the appeal on the basis that raising the defences constituted an abuse of process, as the appellants had failed to challenge the licences when issued and instead resorted to self-help by blockading access.