Canada v. Brokenhead First Nation, 2011 FCA 148

This was an appeal from a decision of Campbell J. of the Federal Court, which held that the Government of Canada breached its duty to consult with several Treaty No. 1 First Nations when it decided to transfer the Kapyong Barracks, situated in the city of Winnipeg, to a non-agent Crown Corporation.

At issue was an agreement between Manitoba, Canada and the signatories to Treaty No. 1, which provided that the First Nations would agree to give up title to land in what is now Manitoba, in exchange for Canada setting aside a certain amount of land for their exclusive use.  This has become known as the “per capita provision”.  As Canada did not fulfill its end of the agreement, the land claims of five First Nations were found to be valid.  In the 1990s, Canada signed Treaty Land Entitlement agreements to rectify its failure to fulfill the per capita provision.  These agreements entitled each of the First Nations to acquire Crown lands on a priority basis.  The Brokenhead First Nation and Peguis First Nation agreements also provided the ability to select a specified amount of unoccupied provincial land and “other land” which included surplus federal land.

The Kapyong Barracks were closed in April 2001 and declared to be surplus land.  Shortly after the closure announcement, the Respondents expressed interest in the lands.  In July 2001, the Treasury Board enacted a policy which governed the disposal of surplus federal property.  In 2002, the Respondent First Nations were notified on the basis of this Treasury Board policy that the Barracks would be dealt with as a strategic disposal and not on a priority basis as per the entitlement agreements.  In 2006, the Treasury Board issued a Directive amending its previous policy to provide that Canada should consider the possible effects of a declaration of “strategic” property on any relevant Aboriginal rights or claims.  In November 2007, the Treasury Board approved the transfer of the Barracks to the Canada Land Company for development and disposal outside of the scope of the agreements.  The seven Respondent First Nations commenced an application for judicial review of the 2007 Treasury Board decision.

Campbell J. of the Federal Court allowed the application.  In his reasons, Campbell J. held that Canada had a duty to consult and rejected the Crown's argument that the duty had been discharged.  Campbell J. also found that the decision to transfer the Barracks triggered a duty to consult with the Brokenhead First Nation and the Peguis First Nation.  Campbell J. also declared the decision by Canada to transfer the Barracks land to be invalid.

However, the Court of Appeal found that Campbell J. failed to deal adequately with the evidence and that the judge’s lack of clarity did not permit the Appellate Court to conduct a meaningful appellate review.  The Court of Appeal identified eight problems with the reasons, including that they did not clearly identify which Respondent First Nations were owed a duty to consult.  The Court also found that Campbell J. failed to distinguish between the different circumstances of the Respondents that arguably could have led to different consultation rights.  Given these findings, the Court of Appeal set aside the decision of Campbell J. and referred the matter back to the Federal Court for redetermination by a different judge.