Long Plain First Nation et al. v. Canada (Attorney General) et al., (2015) 475 N.R. 142 (FCA)

• Judge: Pelletier, Dawson and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 13, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 475 N.R. 142 (FCA);2015 FCA 177

Long Plain First Nation v. Can. (A.G.) (2015), 475 N.R. 142 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] N.R. TBEd. AU.011

Her Majesty the Queen, represented by the Attorney General of Canada, The Hon. Chuck Strahl in his capacity as Minister of Indian Affairs and Northern Development, The Hon. Vic Toews in his capacity as President of Treasury Board, The Hon. Peter MacKay in his capacity as Minister of National Defence, The Hon. Lawrence Cannon in his capacity as Minister Responsible for Canada Lands Company (appellants) v. Long Plain First Nation, Peguis First Nation, Roseau River Anishinabe 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" (respondents)

(A-34-13; 2015 FCA 177; 2015 CAF 177)

Indexed As: Long Plain First Nation et al. v. Canada (Attorney General) et al.

Federal Court of Appeal

Pelletier, Dawson and Stratas, JJ.A.

August 14, 2015.

Summary:

A number of Manitoba First Nations Bands, as successors to the signatories to an 1871 land agreement known as Treaty No. 1, made various claims as to real property located within Winnipeg, known as the Kapyong Barracks; specifically, the piece comprising 159.62 acres, including operational premises previously used by the Canadian armed forces. In November 2007, the Government of Canada decided that it would sell the property to Canada Lands Company, a non-agent Crown corporation, for the purpose of disposal. There was no meeting with representatives of the Bands or any other communication with them before the decision was taken. The Bands applied to set aside the decision and also sought an order restraining the transfer of the property to the Canada Lands Company.

The Federal Court, per Campbell, J., in a decision reported at [2009] F.T.R. Uned. 897, held that the November 2007 decision was invalid. Canada had a legal duty to consult before it disposed of the property and Canada did not fulfil that duty. Canada appealed.

The Federal Court of Appeal, in a decision reported at 419 N.R. 289, concluded that Campbell, J.'s reasons were inadequate, and remitted the matter to the Federal Court for re-decision. Canada conceded that it owed a duty to consult with four of the Bands, but submitted that Canada had fulfilled that duty.

The Federal Court, in a decision reported at 424 F.T.R. 52, allowed the application for judicial review as it pertained to four Bands and set aside Canada's decision to sell the property. Any further decision to sell was enjoined "until [it] can demonstrate to the Court that [it has] fulfilled in a meaningful way [its] duty to consult with the [First Nations]." Canada appealed. The issues were the content and scope of Canada's duty to consult with the four Bands, whether Canada fulfilled that duty and, if not, what remedy should be granted.

The Federal Court of Appeal allowed the appeal only on the issue of remedy. The Court set aside the restraining order and the supervision order.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Federal Court, on an application for judicial review, held that Canada's duty to consult entailed not just the minimal aspects of the obligation of giving notice, disclosing information and responding to concerns raised, but extended to a duty to meet, a duty to hear and discuss, a duty to take the First Nations' concerns into meaningful consideration and a duty to advise as to the course of action taken and why - The Federal Court of Appeal stated that "[b]roadly, I agree with this conclusion of the Federal Court subject to certain modifications ... . However, I do so for reasons different than those offered by the Federal Court. ... The scope and nature of the duty to consult is also affected by the entire factual matrix of this case - in this case guided by the treaty land entitlement agreements and the case law on the duty to consult but also by the concepts of honour, reconciliation and fair dealing that underlie those agreements and the duty to consult. When kept front of mind, these concepts help to inform the nature and scope of the duty ... Because the concepts of honour, reconciliation and fair dealing are relevant, '[t]he history of dealings between the Crown and a particular First Nation' are also relevant" - See paragraphs 100 to 106.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Federal Court of Appeal stated that "[t]o date, the Supreme Court has developed the law concerning the scope and nature of the duty to consult as a special body of law, divorced from normal administrative law principles. To me, however, administrative law remains relevant and the special body of law developed by the Supreme Court is consistent with it. It may be useful in cases like the present to think of the duty to consult within the rubric of administrative law. After all, the matter before us is an administrative law matter" - See paragraphs 107 to 109.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - A number of Manitoba First Nations Bands, as successors to the signatories to an 1871 land agreement known as Treaty No. 1, made various claims to the "Kapyong Barracks" property - Canada decided that it would sell the property to a non-agent Crown corporation - The Federal Court of Appeal was not persuaded by Canada's primary submission that the extent of its duty to consult was found in the written words of the treaty land entitlement agreements - "The problem is that Canada has focused too much upon a technical non-purposive interpretation of the terms of the treaty land entitlement agreements and in particular the specific wording of the release provisions. ... In my view, the treaty land entitlement agreements, seen in their proper historical context, reveal a genuine, bona fide desire, intention and commitment on the part of Canada - consistent with its obligations of honourable conduct, reconciliation and fair dealing with Aboriginal peoples - to engage in a process to rectify Canada's broken promise in Treaty No. 1 over time. To fulfil that desire, intention and commitment, Canada must act like the willing seller contemplated in the treaty land entitlement agreements. ... Agreements such as these are not be interpreted like commercial contracts." - See paragraphs 110 to 118.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Six Manitoba First Nations Bands, as successors to an 1871 land agreement known as Treaty No. 1, made various claims as to their interest in property known as the Kapyong Barracks - The Government of Canada decided that it would sell the property to a non-agent Crown corporation, for the purpose of disposal - There was no meeting with representatives of the Bands or any other communication with them before the decision was taken - Four of the Bands successfully applied to set aside the decision - Canada appealed - The issues included the content and scope of Canada's duty to consult - The Federal Court of Appeal agreed with the Federal Court that Canada's obligation went beyond the minimal level of consultation - "Canada must be in close and meaningful communication with the four [Bands], 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." - See paragraph 124.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Four Manitoba First Nations Bands, as successors to an 1871 land agreement known as Treaty No. 1, successfully challenged the Treasury Board's decision to transfer the "Kapyong Barracks" property to the Canada Lands Company - The Federal Court of Appeal addressed Canada's submission that the Federal Court failed to adequately assess the nature of the claims of each of the four First Nations - In a 23 page decision, only one page had been devoted to the issue - "The short answer to this is that the need for an analysis of the nature and strength of each First Nation's claim was overtaken by Canada's concession at the outset of the hearing in the Federal Court that it had a duty to consult. Once Canada made that concession, the content of the duty to consult ... was informed by the terms of the treaty land entitlement agreements, the purposes underlying those agreements (i.e., the need to facilitate the four respondents' ability to purchase land to redress the broken promise in Treaty No. 1), and the unique and important nature of the Barracks property." - See paragraphs 130 and 131.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Six Manitoba First Nations Bands applied for judicial review of the Treasury Board's decision to transfer the "Kapyong Barracks" property to the Canada Lands Company (CLC) - The Federal Court, in considering whether Canada fulfilled the scope of its duty to consult, broke the events into two time periods (from 2001 to 2004; from late 2006 to November 2007) - Even at the minimum level of duty to consult, Canada did not fulfil its obligations to four of the Bands - The matter was more egregious in the 2006 to 2007 period, when Canada ignored correspondence from the Bands, ignored a request for a meeting, and, after the fact, told the Bands to take their concerns to the CLC - The Federal Court of Appeal agreed that Canada did not fulfil the duty to consult, "though I do not see the evidentiary basis for finding that this matter is 'egregious' ... I see no particular animus on the part of Canada. Instead, fairly read, the record shows a repeated lack of understanding on the part of Canada about the nature and scope of the duty to consult in the particularly unusual circumstances of this case. At the time the events of this case took place, the case law on the nature and scope of the duty to consult was embryonic. ... I also note Canada's concession before the Federal Court, albeit belated, that it does have a duty to consult. I also note that although Canada could have tried to transfer the Barracks property at any time after 2005, it did not do so. We are not dealing with an intransigent, defiant party." - See paragraphs 132 to 137.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Federal Court allowed an application for judicial review as it pertained to four First Nations and set aside Canada's decision to sell the "Kapyong Barracks" property to the Canada Lands Company - Any further decision to sell was enjoined "until [it] can demonstrate to the Court that [it has] fulfilled in a meaningful way [its] duty to consult with the [First Nations]." - The Federal Court of Appeal allowed Canada's appeal only on the issue of remedy - There was no basis in principle or on the facts to make the restraining order and the supervision order - First, the restraining order, on the evidentiary record, could not be sustained - "One cannot say that Canada will not obey the letter and spirit of this Court's decision" - Next, with respect to the supervision order, "one cannot say that Canada's conduct is 'egregious' on the record before us. Supervision orders are 'a remedy of last resort, to be employed only against governments who have refused to carry out their ...responsibilities' ... . On this record, Canada has not refused its responsibilities. Rather, it has been unsure about its responsibilities. ... [T]he supervision order - an unusual and intrusive sort of order - came as a surprise to the parties. In the circumstances of this case, the four respondents should have specifically requested it or the Federal Court should have raised the possibility of it in advance so that the parties could have made submissions on it. ... [A] quashing of Canada's decision to convey the Barracks property to the Canada Lands Company along with these reasons is a sufficient remedy and no other remedies needed to be given." - See paragraphs 140 to 156.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Federal Court of Appeal, sitting in appeal of the application for judicial review as it pertained to four First Nations (the respondents herein) and Canada's decision to sell the "Barracks" property, commented about fulfillment of duties to consult - "Consultation is not a one-way street. All parties must actively engage in the process ... Both parties must act to advance their respective rights in a prompt and conciliatory way ... . The record shows that on occasion some of the four respondents have been dilatory in investigating the Barracks property, asking questions of Canada, and pursuing their interests in the Barracks property. On occasion, some of them were not responsive to invitations by Canada to engage in consultative activities. A continuation of this sort of conduct in the future by any of the four respondents exposes them to risk. If they behave uncooperatively or recalcitrantly, they may be foreclosed in the future from complaining that they were not sufficiently consulted." - See paragraphs 157 to 161.

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians (incl. appeals) - Six Manitoba First Nations Bands made various claims as to their interest in property known as the Kapyong Barracks - The Government of Canada decided that it would sell the property to a non-agent Crown corporation (the Canada Lands Company) for the purpose of disposal - The First Nations successfully applied for judicial review - Canada was restrained from selling the Barracks property to the Canada Lands Company or anyone else "until [it] can demonstrate to the Court that [it has] fulfilled in a meaningful way [its] duty to consult with the [First Nations]." - Canada appealed - The Federal Court of Appeal, in resolving the standard of review, stated that the choice of remedy in this case was a "factually-suffused exercise of discretion. ... Remedial decisions by the Federal Court on judicial review fall into a special category. ... [C]onsistent with Housen, where the remedy depends upon the factual appreciation and discretion of the court - a question of mixed fact and law where facts and discretion predominate - the appellate court should accord deference to the remedial decision. ... The Supreme Court has not definitively and overtly resolved the standard of review for remedial decisions in administrative law. However, it does seem to accord deference to the factually-suffused decisions of reviewing courts that smack of remedial discretion, provided there is no error in principle ... Accordingly, for the purposes of the Federal Court's remedial decision in this case, absent any error in legal principle the standard of review shall be one of deference." - See paragraphs 87 to 91.

Indians, Inuit and Métis - Topic 4

General - Duty owed to Indians by third parties - Six Manitoba First Nations Bands made various claims as to their interest in property known as the Kapyong Barracks - The Government of Canada decided that it would sell the property to a non-agent Crown corporation (the Canada Lands Company) for the purpose of disposal - The First Nations Bands sought to set aside Canada's decision - The parties proceeded on the basis that, on the current state of the law, the Canada Lands Company was not subject to any duties to consult with Aboriginal peoples - The Federal Court of Appeal, sitting in appeal of the application for judicial review, stated that "[t]his is open to question, as the Government of Canada controls the Canada Lands Company and, in appropriate circumstances, could be ordered to cause the Canada Lands Company to act or not act in a particular way. Nevertheless, the parties before us have proceeded on the basis that dealing with the Barracks property through a 'strategic disposal process' could have a significant practical effect: the Barracks property would be transferred from an entity subject to duties to consult with Aboriginal peoples (Canada) to a private entity free from any such duties (Canada Lands Company). On this view of things, the Canada Lands Company could then transfer the Barracks property to any third party free from any need to consult with Aboriginal peoples." - See paragraph 41.

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - Infringement (incl. requirement of consultation) - [See third Indians, Inuit and Métis - Topic 3 ].

Cases Noticed:

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 75].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 83].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, refd to. [para. 86].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [para. 86].

Little Salmon/Carmacks First Nation et al. v. Beckman et al., [2010] 3 S.C.R. 103; 408 N.R. 281; 295 B.C.A.C. 1; 501 W.A.C. 1; 2010 SCC 53, refd to. [para. 86].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 88].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 88].

Budlakoti v. Canada (Minister of Citizenship and Immigration) (2015), 473 N.R. 283; 2015 FCA 139, refd to. [para. 88].

Atomic Energy of Canada Ltd. v. Wilson (2015), 467 N.R. 201; 2015 FCA 17, refd to. [para. 88].

Jodhan v. Canada (Attorney General) et al. (2012), 431 N.R. 144; 350 D.L.R.(4th) 400; 2012 FCA 161, refd to. [para. 89].

Strickland et al. v. Canada (Attorney General) (2015), 473 N.R. 328; 2015 SCC 37, refd to. [para. 90].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 90].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 98].

Sambaa K'e Dene Band et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (2012), 405 F.T.R. 182; 2012 FC 204, refd to. [para. 102].

Sambaa K'e Dene Band v. Duncan - see Sambaa K'e Dene Band et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

Adams Lake Indian Band v. Lieutenant Governor in Council (B.C.) et al. (2012), 326 B.C.A.C. 154; 554 W.A.C. 154; 35 B.C.L.R.(5th) 253; 2012 BCCA 333, refd to. [para. 102].

R. v. Taylor and Williams (1981), 34 O.R.(2d) 360; 62 C.C.C.(2d) 227 (C.A.), leave to appeal refused, [1981] 2 S.C.R. xi; 40 N.R. 539, refd to. [para. 105].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 70 D.L.R.(4th) 385, refd to. [para. 105].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161; 133 D.L.R.(4th) 658, refd to. [para. 105].

Delgumuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161; 153 D.L.R.(4th) 193, refd to. [para. 105].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321; 133 D.L.R.(4th) 324, refd to. [para. 105].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201; 177 D.L.R.(4th) 153, refd to. [para. 105].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353; 24 D.L.R.(4th) 44, refd to. [para. 108].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 108].

Quebec (Attorney General) v. Moses et al., [2010] 1 S.C.R. 557; 401 N.R. 246; 2010 SCC 17, refd to. [para. 117].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 178 D.L.R.(4th) 470; 1999 BCCA 470, refd to. [para. 121].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 128].

Ahousaht Indian Band et al. v. Canada (Minister of Fisheries and Oceans) (2008), 379 N.R. 297; 297 D.L.R.(4th) 722; 2008 FCA 212, refd to. [para. 133].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 143].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 143].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 143].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 143].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 143].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 143].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 2000 SCC 69, refd to. [para. 154].

Brokenhead Ojibway Nation et al. v. Canada (Attorney General) et al. (2009), 345 F.T.R. 119; 2009 FC 484, refd to. [para. 158].

Authors and Works Noticed:

Hogg, Peter, Constitutional Law of Canada, (5th Ed. 2007) (2007 Looseleaf Supp.), vol. 2, p. 40-45 [para. 150].

Counsel:

Jeff Dodgson and Dayna Anderson, for the appellants;

Harley Schachter and Kaitlyn Lewis, for the respondents, Long Plain First Nation and Roseau River Anishinabe First Nation;

Jeffrey R.W. Rath, for the respondent, Peguis First Nation;

Uzma Saeed and Bradley Regehr, for the respondents, Swan Lake First Nation and Sagkeeng First Nation;

J.R. Norman Boudreau and Earl Stevenson, for the respondent, Sandy Bay Ojibway First Nation.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellants;

Duboff Edwards Haight & Schachter, Winnipeg, Manitoba, for the respondents, Long Plain First Nation and Roseau River Anishinabe First Nation;

Rath & Company, Priddis, Alberta, for the respondent, Peguis First Nation;

D'Arcy & Deacon LLP, Winnipeg, Manitoba, for the respondents, Swan Lake First Nation and Sagkeeng First Nation;

Booth Dennehy LLP, Winnipeg, Manitoba, for the respondent, Sandy Bay Ojibway First Nation.

This appeal was heard at Winnipeg, Manitoba, on January 13, 2014, before Pelletier, Dawson and Stratas, JJ.A., of the Federal Court of Appeal. In reasons written by Stratas, J.A., the Court delivered the following judgment at Ottawa, Ontario, on August 14, 2015.