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A new Federal Court of Appeal decision opens the door for First Nations seeking to enforce their rights (such as treaty land entitlements) under modern agreements with Canada, and moves several Treaty 1 First Nations closer to the reality of a new urban reserve in Winnipeg.

The Federal Court of Appeal released its decision in Canada v Long Plains First Nation, 2015 FCA 177 on August 14, 2015. This case centres on the Kapyong Barracks, a former armed forces base, located on 160 acres in Winnipeg.

The Kapyong Barracks are on prime land located in the heart of Winnipeg. Land like this is rare and presents a unique opportunity for an urban reserve to both serve the housing needs of urban members of the applicant First Nations and to generate income from commercial projects that could be developed on the land.

The four successful First Nations are all signatories to Treaty 1. Treaty 1 was signed in 1871, and promised 160 acres of land per family of five. Canada never fulfilled this requirement. As the Federal Court of Appeal found, Canada “broke the solemn promise it made”. It was not until the 1990s (some 120 years later) “that Canada finally took concrete steps to remedy its breach of Treaty 1”. Canada finally agreed to enter into treaty land entitlement agreements with First Nations, which set out how First Nations who were owed land could go about acquiring it and turning it into reserve lands.

The First Nations involved in this case tried at various times to engage with Canada to discuss buying the barracks as part of their treaty land entitlement. Canada failed to even provide the First Nations basic information about the nature of the property or engage in any meaningful discussion with the First Nations about selling the land to them.

After Canada decided to close the barracks, it chose to sell the land to the Canada Lands Corporation, a private non-agent Crown corporation that Canada uses to sell some of its lands to third parties.

When Canada’s Treasury Board confirmed its approval to sell the property to the Canada Lands Corporation in 2007, six First Nations asked the Federal Court to judicially review that decision on the basis that Canada had failed to consult and accommodate the First Nations before selling the land. (Note that only four were successful: Long Plain First Nation, Swan Lake First Nation, Roseau River First Nation and Peguis First Nation and it is these four referred to below).

Long road to a decision

You may have heard about this case before because it has a long legal history. The first Federal Court decision came out in 2009, but the Federal Court of Appeal decided that the court’s reasons weren’t good enough and sent the case back to the Federal Court for a “re-decision”. The Federal Court issued a new decision in 2012 and then finally the Federal Court of Appeal came out with its decision this month.

So what did the Federal Court of Appeal find?

The Federal Court of Appeal found that Canada owed the four First Nations a duty to consult with them over the sale of the barracks and that Canada had not met its duty. In particular, the Court found: “Canada must be in close and meaningful communication with the four respondents, give them relevant information in a timely way, respond to relevant questions, consider carefully their fully-informed concerns, representations and proposals, and, in the end, advise as to the ultimate course of action it will adopt and why.” The Court described this as consultation in the middle of the Haida spectrum.

The Federal Court of Appeal also noted that Canada cannot contract out of its obligation to act honourably, to deal fairly and to consult with First Nations. The Court found that agreements like treaty land entitlement agreements should not be interpreted like commercial contracts, rather they “should be interpreted in accordance with the objectives of honourable conduct, reconciliation and fair dealing with Aboriginal peoples”.

This is an important finding for other First Nations seeking to enforce their rights under modern agreements with Canada, like treaty land entitlement agreements. The Federal Court of Appeal has signaled that these agreements will not be narrowly interpreted based on what is on the page, as Canada wanted. The Court is going to look at the context, like broken treaty promises, and interpret the agreements in order to hold Canada accountable to its duties as the Crown.

There is another valuable little tidbit in the decision. The Federal Court of Appeal noted that the parties all agreed that the Canada Lands Company, as a non-agent Crown Corporation, is not subject to the Crown’s duties to consult with Aboriginal people and so the decision proceeded on this assumption. However, the Court left open the door to finding in a future case that a non-agent Crown corporation could owe a duty to consult and accommodate. In particular, Justice Stratas noted that this idea that non-agent Crown corporations do not owe a duty to consult is open to question where the government controls the Crown corporation and could cause the Crown corporation to act or not act in a particular way. First Nations are told by Crown corporations across Canada “we do not owe you any duties”, this case is a reminder that the matter is not settled and even non-agent Crown corporations may owe First Nations duties.

Where did accommodation go?

While this decision is overall very positive for First Nations seeking to hold Canada accountable to meet its obligations, it does cause me some concern over what is missing. The word “accommodate” only appears twice in the decision– once to state that the First Nations asked for a finding that Canada owed a duty to consult and accommodate and second in a quote from Haida. The Federal Court of Appeal only speaks about Canada’s “duty to consult” the First Nations, it ignores the arguably far more important requirement that Canada accommodate the First Nations as appropriate. It remains to be seen if this omission was purposeful. The reasons are silent on why accommodation is missing. Consultation would be meaningless if accommodation was never on the table.

By Stephanie Kearns

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