Chief Jesse John Simon et al. v. Attorney General of Canada

Aboriginal law – Administrative law – Duties of the Crown

The present leave application relates to the eligibility criteria for income assistance on First Nation reserves in Atlantic Canada. The Applicants, four First Nations on behalf of 26 Maritime and Maliseet Bands, challenged a decision by the Minister of Aboriginal Affairs undertaken to ensure strict compliance with the provincial eligibility criteria in accordance with pre-existing obligations under agreements with the Treasury Board, particularly a 1990 Memorandum of Understanding (“MOU”). Previously, the Applicants had utilized criteria reasonably comparable to the provincial criteria. The Applicants sought judicial review on the basis that the change was an unconstitutional abandonment or sub-delegation of government power, occurred without meaningful consultation, and failed to meet the requirement of procedural fairness in accordance with legitimate expectations arising from the Applicants’ past dealings with the Crown. The Federal Court allowed the Applicants’ application for judicial review and set aside the Minister’s decision. The Federal Court of Appeal allowed the appeal and set aside the judgment below.


Moulton Contracting Ltd. v. Her Majesty the Queen in Right of the Province of British Columbia et al.

Contracts – Aboriginal Law – Logging – Fiduciary Duty

In June 2006, the applicant was granted timber sale licences (“TSLs”) to harvest timber in the Fort Nelson Timber Supply Area, including locations within the licensed trapline of George Behn. Mr. Behn indicated to the Crown in July that he opposed the harvest and would be going out to stop it. After the harvesting commenced late September, Mr. Behn advised he would block access, at which point the Crown informed the applicant of the problem. A blockade was established on the access road for the timber harvest areas. The applicant could not continue the harvest and was unable to obtain other logging work. It commenced an action against the Crown, the Behns and the Fort Nelson First Nation (“FNFN”). Its claims against the Behns and FNFN for intentional interference with economic relations and civil conspiracy were ultimately dismissed on the basis that it had not established that the Behns had committed an unlawful act. That aspect was not appealed. The applicant’s claims against the Crown were for breach of implied terms of their contract and negligent misrepresentation.

The Supreme Court of British Columbia held that the Crown had breached an implied term of the TSLs (and an implied, continuing representation) that the Crown was not aware of any First Nations expressing dissatisfaction with the consultation undertaken by it, save has had been disclosed to the applicant. The Court held the Crown liable in breach of contract for failing to notify the applicant in a timely manner of Mr. Behn’s threat to block physical access and in negligence for breaching the duty of care owed to pass on information of fundamental relevance to the applicant’s ability to exercise its rights under the licences. The Crown’s appeal was allowed by the British Columbia Court of Appeal.