Three separate lawsuits have been commenced by First
Nations against the Attorney General of Canada and the
provinces of Alberta, Manitoba and Ontario claiming breach of
treaty rights and fiduciary duty. These recent claims are
indicative of the mounting litigation faced by the governments
of Canada and the provinces for unsettled aboriginal rights
claims and infringement of treaty rights. The content of the
claims also presents a risk to resource
In Alberta, the Beaver Lake Cree Nation (Beaver Lake) has
filed an action against the province and the Attorney General
of Canada for breach of its treaty rights. Beaver Lake is a
signatory to Treaty 6 and claims the right to trap and fish
certain wildlife species for subsistence, for cultural, social
and spiritual needs, and to sell and trade for livelihood
purposes throughout the tract of land surrendered under Treaty
6. Beaver Lake claims that the leases and authorizations issued
for over 15,000 projects and activities (the Developments) in
its traditional territory have adversely affected the ability
of Beaver Lake to meaningfully exercise its treaty rights and
has rendered them meaningless. Beaver Lake seeks an injunction
restraining the governments from acting unconstitutionally in
respect of the Developments, and claims damages for an
unspecified amount. Of note to resource developers, Beaver Lake
also seeks a declaration that the leases and authorization for
the Developments unjustifiably infringe its treaty rights and
that they are of no force or effect.
In Manitoba, the Fort Alexander Indian Band No. 262 and the
Sagkeeng First Nation (the Bands) commenced an action against
the province and the Attorney General of Canada claiming
unextinguished Aboriginal Title to their traditional lands
falling outside the boundaries of the Treaty 1 area and within
the boundaries of Manitoba. Ancestors of the Fort Alexander
Indian Band No. 262 signed Treaty 1 in 1871. The Sagkeeng First
Nation is comprised of Anicinabe people who have resided on
Fort Alexander Indian Reserve No. 3 at or near Sagkeeng. The
Bands allege that the written text of Treaty 1 makes no mention
of, nor does it purport to surrender, the lands that fall
outside of the specified boundaries described in Treaty 1.
Specifically, Treaty 1 does not purport to surrender the lands
east and north of the Winnipeg River, which constitutes the
Bands' traditional territory. The Bands seek a
declaration of Aboriginal Title, breach of fiduciary duty and
compensation in an unspecified amount.
In Ontario, the Atikameksheng Anishn'awbek (the AA)
filed its action against the province and the Attorney General
of Canada claiming that the Crown failed to provide the AA with
a reservation in accordance with the written and oral terms of
the Robinson Huron Treaty of 1850. Under the Treaty, the area
of the "Reservation Lands" is described as "a
tract of land now occupied by [AA], and contained between the
two rivers called Whitefish River and Wanabitaseke seven miles
inland". The AA claims that it has suffered a loss of use
of the lands which were to have been set aside as a Reservation
and that the Crown wrongfully and unlawfully converted a
portion of the Reservation Lands for its own use. The AA
further asserts that each and every transaction for which the
Province of Ontario has issued patents or title to portions of
the Reservation Lands, is null and void. The AA seeks a
declaration that the Crown has breached the Treaty rights and
its fiduciary obligations to the AA, and damages in the amount
of $550 billion for loss of use of the Reservation Lands.
Resource developers must manage risk
These cases are indicative of the mounting litigation being
faced by Canadian governments for unsettled aboriginal rights
claims and infringement of treaty rights. In particular, they
deal with the interpretation of treaties and whether the
obligations of the Crown under those treaties have been
fulfilled. For resource developers, the possibility that the
Crown may fail (or has failed) in its obligations to aboriginal
groups continues to represent a significant risk to a project.
As this risk cannot be eliminated, it needs to be managed
through careful planning and meaningful consultation with the
aboriginal groups whose rights may be impacted by a proposed
development. This means that proponents need to better
understand the nature of the rights being claimed by the
aboriginal groups in the area and develop a strategy which, to
the extent possible, takes into consideration how best to
address a project's impacts on the rights claimed.
Shawn Denstedt is a partner in the
firm's Calgary office. JoAnn Jamieson
is a senior associate in the firm's Calgary office.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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