[2016] 1 F.C.R. D-1
Aboriginal Peoples
Lands
Appeal, cross-appeal from Federal Court decision (2012 FC 1474) finding Canada failing to fulfil duty to consult with respect to sale of Kapyong Barracks to non-agent Crown corporation — Barracks located on land for which respondents claiming right to purchase in priority to other purchasers — Federal Court finding Canada owed duty to consult four of respondents, Canada failing to fulfil that duty — Federal Court holding two of respondents, Sagkeeng First Nation (Sagkeeng), Sandy Bay Ojibway First Nation (Sandy Bay), not owed duty to consult — That aspect of judgment cross-appealed — Under Treaty No. 1, signed in 1871, certain Manitoba First Nations entitled to 160 acres of land per family of five — Canada failing to fulfil that provision — Not until 1990s that Canada taking concrete steps to remedy breach of Treaty No. 1 — Treaty land entitlement framework agreements (TLEs) entered into between Canada, Manitoba and four respondents — Canada not recognizing land claim of Sagkeeng as that claim outstanding — Canada also rejecting claim of Sandy Bay on basis claim already fulfilled — TLEs with two of respondents, Long Plain First Nation, Swan Lake First Nation, to provide respondents with money to purchase land — TLEs more detailed with respect to two other respondents — In case of Roseau River Anishinabe First Nation, told it could acquire at fair market value land under Canada’s administration and control Canada prepared to make available — In case of Peguis First Nation TLE, Peguis can select specified amount of unoccupied provincial land, including surplus federal land — In April 2001, Department of National Defence announcing closing of military base on Kapyong Barracks — Long Plain First Nation expressing interest in Barracks — However, Barracks property classified as “strategic” under Treasury Board policy (TB policy), meaning Barracks property not going to be made available to four respondents on priority basis — As “strategic” property, Canada could assess value of Barracks property and could transfer it to Canada Lands Company, federal non-agent corporation, for disposal to third parties — Treasury Board approving sale of Barracks property to Canada Lands Company — TB policy subsequently amended to include new requirement, i.e. disposal of “strategic” property subject to “assessment of federal and other stakeholder interests” — Whether Federal Court’s judgment should stand — Federal Court committing no error in concluding that Canada did not owe duties to Sagkeeng First Nation, Sandy Bay Ojibway First Nation — As to content and scope of Canada’s duty to consult with four respondents, TLEs, seen in their proper historical context, revealing genuine, bona fide desire, intention, commitment on part of Canada to engage in process to rectify broken promise in Treaty No. 1 over time — Canada thus having to make its intentions concerning its property known to parties which, to its knowledge, have an interest in acquiring the property, provide them relevant information, give them opportunity to make their intentions known, consider their proposals carefully — Given wider context behind TLEs (in particular, their purpose in redressing Canada’s broken promise under Treaty No. 1), given larger obligations to act honourably, to deal fairly and to consult with First Nations, silence on issue of consultation in agreements not to be taken as positive statement that consultation in this case with four respondents limited — In these circumstances, Canada’s obligation not just to give notice to four respondents about sale of Barracks property — Federal Court thus correct to say that Canada’s obligation going beyond minimal level of consultation — In assessing whether to sell land and to whom, Canada must be in close, meaningful communication with four respondents, give them relevant information in timely way, respond to relevant questions, consider carefully their fully-informed concerns, representations, proposals, follow any relevant provisions in TLEs, advise as to ultimate course of action it will adopt and why — In circumstances such as these, as long as consultation meaningful, Canada having no obligation to reach agreement with four respondents — In present instance, Canada not fulfilling duty to consult as defined above for numerous reasons — Among other things, Canada’s treatment of concerns raised by respondents falling short of scope of duty to consult — However, contrary to Federal Court, matter not considered “egregious” — Federal Court restraining Canada from selling Barracks property to Canada Lands Company or anyone else until Canada could demonstrate duty to consult fulfilled — No basis in principle or on facts of case for Federal Court to make restraining order, supervision order — With respect to restraining order, one could not say Canada will not obey letter, spirit of Court’s decision — As to supervision order, such orders “a remedy of last resort, to be employed only against governments who have refused to carry out their…responsibilities” — It could not be said Canada has refused its responsibilities herein — Furthermore, respondents not specifically requesting supervision order, nor did Federal Court advise parties it was contemplating such order — Restraining order, supervision order set aside — Appeal allowed in part; cross-appeal dismissed.
Canada v. Long Plain First Nation (A-34-13, 2015 FCA 177, Stratas J.A., judgment dated August 14, 2015, 53 pp.)