Brokenhead First Nation, Long Plain, First Nation, Peguis First Nation, Roseau, River Anishabe First Nation, Sagkeeng, First Nation, Sandy Bay Ojibway First, Nation, Swan Lake First Nation, collectively being Signatories to Treaty No. 1 and known as "Treaty One First Nations" v. The Queen , 2009 FC 982

Federal Court: September 30, 2009

Link soon available at CanLii.org

The Federal Court granted the application of certain First Nations, finding that the Crown had an obligation to consult them, which obligation the Crown had not fulfilled, with respect to the disposition of certain lands.

The facts leading to the litigation are as follows:

In 1871, the plaintiff First Nations in Canada signed Treaty No. 1, by which the latter renounced title with respect to certain lands, while Canada reserved certain lands for their exclusive use. However, Canada did not carry out its obligations to set aside land in the quantities provided for under the Treaty. Canada recognized its breach and entered into treaty-land entitlement agreements with the Treaty 1 First Nations. These agreements provided among other things that the plaintiffs could select and purchase surplus lands, which would be converted into reserve land. Notwithstanding these agreements, Canada proceeded to unilaterally transfer certain surplus lands over which two of the First Nations had rights. The Crown argued that pursuant to the treaty-land entitlement agreements, any further obligations on the part of the Crown had ceased. The Crown regarded these agreements as the fulfillment of the outstanding treaty promises and that, pursuant to those agreements, Canada had been released from any further obligations. The First Nations argued, and the Court agreed, that the land-entitlement agreements formed part of the process of implementation of treaty obligations and, as such, the duty to consult with respect to this implementation was ongoing.

In this regard, the decision of the Crown to sell surplus land in Winnipeg without consultation was invalid.

Applying the principles established by the Supreme Court of Canada with respect to consultation and the honour of the Crown, the Court concluded that Canada was required to act honourably and to consult the affected First Nations prior to taking steps that could have a negative impact on their rights. The Court reaffirmed the principle that the relationship between the Crown and First Nations is ongoing and must be guided by principles of reconciliation.

The Court further rejected the argument of the Crown and found that the release clauses in the modern land-entitlement agreements did not affect its duty of consultation as part of the implementation of the treaty. Therefore, the Court concluded, the Crown was required to consult First Nations prior to transferring the land in question.