Canada: First Nations Launch Lawsuits In Alberta, Manitoba And Ontario

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 developers.

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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