Tzeachten First Nation v. Canada (Attorney General), 2009 FCA 337

Federal Court of Appeal, November 19, 2009

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In the context of consultation of First Nation regarding transfer of lands not subject to an agreement, the Federal Court of Appeal dismissed the appeal of three communities (“First Nation”), which were seeking an order setting aside the Federal Court’s judgment, a declaration that the 2003 decision to transfer land was invalid or unlawful, and a declaration that the Crown has and continues to have a legal obligation to consult with the them and properly accommodate their interests.

The facts leading to the litigation are as follows:

The land transferred was adjacent to the First Nation’s reserve. The reserve being too small for its needs, the latter had asserted interest on this land. Moreover, the First Nation still had unresolved specific claim as well as an unresolved claim of Aboriginal title on it. Considering none of the Crown’s proposals to be meaningful responses to the First Nation’s claims, negotiations launched in the 90s failed.

In the spring of 2000, a submission was made to the Treasury Board relating to the disposition of the land. It was provided that the land would be retained for a two-year period from June 2000 to allow further negotiations. In May of 2000, First Nation made a submission to the Treasury Board, consisting of a detailed study setting out the importance to them of the land, and a plan for its development, including band housing, band infrastructure, and some commercial and mixed use for revenue generation. In June 2000, the Treasury Board informed the First Nation that their submission had been considered, but the Treasury Board had decided to accept the Crown proposal regarding the transfer. From the First Nation perspective, the transfer of lands removed that land from the federal inventory potentially available to settle its claims. After 2000, no further discussions occurred, no agreement was reached and the land was finally transferred in 2004.

The Court of Appeal found that the Crown had met its duty to consult by June of 2000. Consultation was properly carried out by that time and the Court noted that the First Nation took no steps after 2000 to move the treaty negotiations forward in relation to the land. The Court also found that the first judge was right to consider that when assessing the seriousness of the potentially adverse effect of a decision on an Aboriginal title claim, it is important to consider whether the adverse effect is compensable in money, or whether it is not compensable in money because the subject of the claim is unique in some substantial way relating to an unrecognized Aboriginal claim.

Accordingly, the Court of Appeal dismissed the Appeal and confirmed the Federal Court’s decision.