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The Charter applies to a self-governing First Nation, but section 25 shields its residency requirement from an equality challenge.
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.
Mining exploration permit set aside due to Crown's failure to fulfill its duty to consult.
The applicant First Nation sought judicial review of a decision by the Director of Exploration granting a mining exploration permit to a corporate respondent on lands within the applicant's traditional territory.
The applicant argued the Crown failed to properly discharge its duty to consult.
The Divisional Court found that the Crown and its delegate had created clear expectations for a community meeting and a Memorandum of Understanding, but abruptly changed course without explanation to expedite the permit for commercial reasons.
The court held that the consultation process lacked genuine engagement and failed to maintain the honour of the Crown.
The application was granted, the permit was set aside, and the matter was remitted for adequate consultation.
