Indigenous Legal Issues - SCC

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.

The appellant First Nation's reserve land was flooded in the 1920s–1930s to power hydroelectricity generation without its consent, without compensation, and without lawful authorization.

The trial judge found Canada breached its fiduciary duty and awarded $30,000,000 in equitable compensation, valuing the flooded land based on general expropriation principles and excluding the land's value to the hydroelectricity project.

The majority of the Supreme Court held that the trial judge erred by treating compliance with minimum expropriation obligations as sufficient to discharge the fiduciary duty, which required Canada to negotiate compensation reflecting the full value of the land to the project.

The appeal was allowed and the equitable compensation award returned to the Federal Court for reassessment to include the value of the flooded land for hydroelectricity generation.

Côté J. dissented, finding no reviewable error in the trial judge's compensation assessment and no evidentiary basis for the majority's approach.

The appellant Crown appealed acquittals of the respondent, a United States citizen and member of the Lakes Tribe of the Colville Confederated Tribes, who was charged under British Columbia wildlife legislation after hunting elk in the traditional Sinixt territory in British Columbia.

The majority held that on a purposive interpretation of s. 35(1) of the Constitution Act, 1982, the expression 'aboriginal peoples of Canada' includes the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, even if those groups are now located outside Canada.

Applying the Van der Peet test, the Court found the respondent was exercising a constitutionally protected Aboriginal right to hunt for food, social and ceremonial purposes within the Sinixt ancestral territory in British Columbia.

The Crown's appeal was dismissed, with Moldaver and Côté JJ. dissenting on the grounds that s. 35(1) does not extend to Aboriginal groups located outside Canada and, in any event, that continuity had not been established.

The appellants, the sole French-language school board in British Columbia and associated parents' federation and individual rights holders, brought a constitutional challenge alleging systemic underfunding of minority language education and inadequate facilities in numerous communities, contrary to s. 23 of the Canadian Charter of Rights and Freedoms.

The majority clarified the sliding-scale framework for situating the number of minority language students so as to determine the level of educational services warranted, introducing a province-wide comparative presumption of pedagogical and cost appropriateness when majority language schools of comparable size exist elsewhere in the province.

The majority further held that substantive equivalence — not proportionality — is the applicable standard for assessing the quality of the educational experience throughout the sliding scale, and that infringements of s. 23 are subject to a particularly stringent justification standard under s. 1, such that the fair and rational allocation of public funds does not constitute a pressing and substantial objective.

The Court held that Mackin immunity from Charter damages does not extend to government policies infringing s. 23, and restored the trial judge's award of $6 million for the transportation funding freeze and ordered $1.1 million in additional damages for the Annual Facilities Grant Rural Factor breach.

Brown and Rowe JJ. dissented in part, rejecting the province-wide presumption as inconsistent with settled jurisprudence and as compressing the middle of the sliding scale, though agreeing on substantive equivalence, the invalidity of a purely financial s. 1 objective, and the appropriateness of Charter damages in the s. 23 context.

Two Innu First Nations filed suit in the Quebec Superior Court against mining companies operating a megaproject straddling Quebec and Newfoundland and Labrador, seeking a permanent injunction, $900 million in damages, and declarations recognizing Aboriginal title and other Aboriginal rights over a traditional territory called Nitassinan.

The Attorney General of Newfoundland and Labrador moved to strike allegations relating to land situated in that province, arguing Quebec courts lacked jurisdiction.

The majority held that the claim was a non-classical mixed action involving sui generis Aboriginal rights (not real rights in the civil law sense) and personal obligations, and that Quebec courts had jurisdiction over both aspects under arts. 3134 and 3148 C.C.Q. because the defendant mining companies were domiciled in Montreal.

The dissent would have allowed the appeal, finding that Aboriginal title and other Aboriginal rights are real rights for private international law purposes, that art. 3152 C.C.Q. deprived Quebec courts of jurisdiction over claims relating to land outside Quebec, and that allowing such jurisdiction would seriously undermine Canadian federalism and ultimately impede access to justice for Indigenous claimants.

The accused was charged with first degree murder in the death of an Indigenous woman and sex worker found dead in his hotel room with an 11 cm wound in her vaginal wall.

At trial, the accused testified at length about prior sexual activity with the deceased without having made an application under the s. 276 regime of the Criminal Code, and the jury was not given any limiting instruction on the permissible uses of that evidence.

The jury acquitted the accused of both first degree murder and the included offence of unlawful act manslaughter.

The Alberta Court of Appeal allowed the Crown's appeal and ordered a new trial on first degree murder.

The majority of the Supreme Court held that the trial judge erred by failing to comply with the mandatory s. 276 regime, and that the resulting failure to inoculate the jury against mistakes of law related to the defence of honest but mistaken belief in communicated consent warranted a new trial on unlawful act manslaughter.

However, a new trial on first degree murder was not warranted as the errors did not materially bear on the murder acquittal, which turned on a battle of expert evidence on whether a sharp object was used.

The dissent would have upheld the Court of Appeal's order of a new trial on both murder and manslaughter.

The appellant brought a claim under the Independent Assessment Process of the Indian Residential Schools Settlement Agreement, alleging compensable sexual abuse under category SL1.4 when a nun touched his genitals over his clothing while he was a student at a residential school.

The Hearing Adjudicator denied the claim by erroneously importing a requirement of sexual intent not found in SL1.4.

All internal review levels upheld the denial, and the supervising judge at the Manitoba Court of Queen's Bench ordered reconsideration.

The Manitoba Court of Appeal set aside that order, holding the supervising judge had exceeded his jurisdiction.

A majority of the Supreme Court of Canada allowed the appeal and reinstated the reconsideration adjudicator's compensation award, finding that supervising courts have an ongoing duty to intervene where an adjudicator makes an unauthorized modification of the IAP, and that a gap in the IRSSA justified judicial intervention to ensure the appellant received the compensation bargained for.

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 Court dismissed the appeal and upheld decisions finding that complaints challenging Indian Act registration provisions were bare attacks on legislation, not discrimination in the provision of services under s. 5 of the Canadian Human Rights Act.

The Tribunal’s dismissal was upheld because legislation itself is not a service under that provision.

A Métis federal inmate challenged correctional authorities’ use of psychological and actuarial risk tools for Indigenous offenders, alleging statutory and Charter breaches.

The Court held that authorities breached their duty under s. 24(1) of the Corrections and Conditional Release Act by continuing to rely on the tools without taking reasonable steps to confirm validity for Indigenous persons.

The Court declined to find violations of ss. 7 or 15 of the Charter on the evidentiary record.

Declaratory relief was granted in light of the prolonged and ineffective grievance history, but no broader injunctive remedy was ordered.

The appeal concerned a specific claim for compensation based on historic pre-emption of Indigenous village lands and alleged Crown breaches before and after Confederation.

The Court held that reasonableness review applied to the Tribunal’s validity decision and restored findings that fiduciary obligations were breached in relation to the village lands.

The majority concluded the Tribunal reasonably found both pre-Confederation and post-Confederation fiduciary breaches and reasonably interpreted the extended meaning of the Crown for statutory responsibility.

The appeal was allowed and the Tribunal’s validity decision was restored, with compensation issues left to the compensation stage.

The Court held Yukon breached the Chapter 11 modern treaty land-use planning process by making major final-stage changes not properly proposed earlier and not grounded in changing circumstances.

Yukon’s approval was quashed, and the parties were returned to the s. 11.6.3.2 stage.

The Court rejected the Court of Appeal’s approach of resetting the process to an earlier stage and emphasized judicial restraint with robust legality review in modern treaty implementation.

The Court dismissed an appeal challenging provincial approval of a ski resort project in Qat’muk on freedom of religion and section 35 consultation grounds.

The majority held section 2(a) protects freedom to hold and manifest beliefs, not protection of the spiritual object itself, and found no Charter infringement.

It further held the Minister reasonably concluded deep consultation and accommodation had occurred over many years, and that section 35 guarantees a process rather than a veto over development outcomes.

The Court allowed the appeal and quashed the National Energy Board authorization for offshore seismic testing in Baffin Bay and Davis Strait.

It held that the Board’s approval process triggered the Crown’s duty to consult, and that the Crown may rely on a regulatory process to fulfill consultation obligations where that process is adequate.

On these facts, consultation was inadequate given the significance of Inuit treaty harvesting rights, the potential impacts of testing, limited participation opportunities, and insufficient accommodation.

This appeal considered whether the Crown’s duty to consult Indigenous peoples can be fulfilled through the National Energy Board process for a pipeline modification.

The Court held that the Board’s approval decision was Crown conduct that engaged the duty to consult, and that the Crown may rely on a regulatory process where statutory powers and process are sufficient.

On the facts, the Court found meaningful participation, assessment of potential impacts, and accommodation conditions imposed on the proponent.

The consultation obligation was met and the appeal was dismissed.

On a statutory interpretation appeal concerning reserve land taxation, the appellant argued that a bylaw clause permitting consideration of restrictions placed on land use “by the band” excluded a lease restriction created in a Crown lease.

The Court held that the assessor could consider the golf-club use restriction when valuing the leased reserve lands for assessment purposes.

Reading the bylaw text, purpose, and legislative context together, the Court found the 1996 amendment narrowed qualifying restrictions but did not bar this restriction.

The Court also held the Crown’s historical statutory role in reserve leasing did not negate that the restriction was placed by the band in context.

The appeal was dismissed with costs.

On a constitutional appeal, the appellants sought declarations that Métis and non-status Indians fall within Parliament’s jurisdiction under s. 91(24), that the federal Crown owes them a fiduciary duty, and that they have consultation and negotiation rights.

The Court held that Métis and non-status Indians are “Indians” under s. 91(24), restored the broader trial declaration, and rejected restricting Métis status to the Powley framework for this jurisdictional purpose.

The Court found this declaration had practical utility in ending the federal-provincial jurisdictional impasse.

The Court declined the second and third declarations as restatements of settled law lacking practical utility.

The Court allowed the appeal and restored the Federal Court decision dismissing the constitutional challenge to a First Nation election rule requiring Grade 12 education for candidates.

The claimant failed to show that the requirement had a disproportionate discriminatory impact on an enumerated or analogous ground, including age or residence on reserve, because the evidentiary record was insufficient.

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 appellants, representing the Metis people of Manitoba, sought declarations that Canada breached fiduciary obligations and failed to act in accordance with the honour of the Crown in implementing land grant provisions under ss. 31 and 32 of the Manitoba Act, 1870.

The majority held that while no fiduciary duty arose, s. 31 constituted a solemn constitutional obligation to the Metis as an Aboriginal people, engaging the honour of the Crown.

The Crown failed to act with diligence in implementing the land grants, exhibiting a persistent pattern of errors and inaction over more than a decade that substantially frustrated the purpose of giving Metis children a head start over incoming settlers.

The claim was not barred by limitations or laches.