Karey M. Brooks

The appellant First Nation government sought advance costs to fund treaty rights litigation against the Crown, arguing that despite having access to financial resources, those resources were required to address pressing community needs including housing deficits, lack of infrastructure, and high unemployment.

The Supreme Court clarified the impecuniosity requirement for advance costs: a First Nation government with access to financial resources may satisfy the requirement by demonstrating that those resources are genuinely needed to meet pressing needs, which are not limited to bare necessities but extend to matters within the broad mandate of First Nation governance.

The Court found the case management judge erred in failing to make sufficiently particularized findings on the cost of pressing needs and available surplus resources.

The appeal was allowed and the matter remitted to the Court of Queen's Bench of Alberta for reconsideration on a more complete record, with solicitor-client costs awarded to the appellant in all courts.

An Indigenous rights-holder sought judicial review over the federal law-making process, alleging a duty to consult before introduction and enactment of omnibus environmental legislation that could affect Treaty 8 harvesting rights.

A majority held the reviewing court lacked jurisdiction under the Federal Courts Act because the impugned ministerial conduct was legislative in character and not reviewable as action of a federal board, commission, or tribunal.

The Court further held the duty to consult does not attach to the legislative process itself, given separation of powers, parliamentary sovereignty, and parliamentary privilege.

The appeal was dismissed, while leaving open that enacted legislation may still be challenged through constitutional and other established remedies where rights are adversely affected.

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.

The plaintiffs, members of the Grassy Narrows First Nation, brought an action alleging that Ontario's issuance of a forestry licence in the Keewatin portion of Treaty 3 lands violated their treaty harvesting rights.

The trial judge found that Ontario could not take up lands in the Keewatin territory without Canada's approval.

The Court of Appeal allowed the appeal, holding that upon the transfer of beneficial ownership of the Keewatin lands to Ontario in 1912 pursuant to s. 109 of the Constitution Act, 1867, Ontario acquired the right to take up lands under the treaty without federal approval.

The Court found that the trial judge erred in interpreting the treaty as requiring a two-step authorization process and in finding that s. 91(24) gave Canada a continuing supervisory role over provincial land use.