2020 In Review: Notable Indigenous Rights Litigation

• Published date: 03 February 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: Fasken
• Author: Ms Bridget Gilbride, Madison Grist, Shelby Boehm, Tracy Pratt and Emilie Bundock

Highlights and Trends

As the law relating to Indigenous peoples, and the application of that law, evolves so does the nature and type of Indigenous rights litigation. This bulletin highlights certain key Indigenous rights cases that were decided, heard, or commenced in 2020, and identifies overarching trends. These trends apply to varying degrees in different provinces and territories, but are all worth following as the law in this area continues to advance:

• Lengthy trials vs judicial reviews: Indigenous rights litigation has focused largely on challenges to project approvals or permits and the boundaries of adequate consultation. Increasingly, lawsuits seeking damages and other relief for title or rights infringement are before the courts. In British Columbia alone, there are three ongoing Indigenous rights trials of more than 100 days, and there are two lengthy trials underway in Ontario (see e.g., Cowichan Tribes v. Canada in British Columbia, and Restoule v. Canada (Attorney General) in Ontario, described below).
• Expansion of claims: Indigenous rights litigation has expanded in terms of the causes of action advanced by Indigenous plaintiffs and the remedies sought. Indigenous plaintiffs are no longer limiting their claims to alleged failures of the duty to consult, breaches of fiduciary duty, or infringement of section 35 rights (i.e., Treaty rights, Aboriginal rights Aboriginal title), but are advancing private law claims, including trespass and nuisance, arising from interference with their section 35 rights, as well as Charter breaches and other claims. These plaintiffs are seeking a broad spectrum of relief against Government and private parties that includes damages and injunctions against existing infrastructure (see, e.g Peter Ballantyne Cree Nation v. Canada (Attorney General) and Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani Utenam), described below).
• Infringement claims based on cumulative effects: The cumulative impacts of industrial development have been forefront in Crown consultation and land management for years. More recently, Indigenous groups have commenced lawsuits against the Crown seeking declarations that these cumulative impacts have infringed rights they hold under historic treaties, and pursuing mandatory orders that would have an impact on the Crown's ability to approve future development The trial of one of these lawsuits concluded in 2020, with the decision expected in 2021 (Yahey v. British Columbia, see also Lameman v. Alberta and Carry the Kettle First Nation v. Saskatchewan, described below)
• Asserted title to waterbeds: This asserted right may be the new frontier for Indigenous litigation. The issue is currently being litigated in a trial in Ontario and, depending on the result, could result in additional claims to waterbeds across the country (see Saugeen Ojibway Nation v. Canada, described below).

Below, we highlight notable Indigenous rights litigation in 2020 as well as cases to watch this year.

Supreme Court of Canada Hearings and Decisions

In 2020, the Supreme Court of Canada rendered one decision and heard two cases that will have implications to Indigenous rights issues:

R. v. Desautel (British Columbia)

This was a prosecution of Richard Lee Desautel under the Wildlife Act for hunting while not being a resident of British Columbia. Mr. Desautel lives in Washington State and is a member of the Lakes Tribe of the Colville Confederated Tribes. At the trial held in 2017, Mr. Desautel asserted he holds Aboriginal rights under section 35 as his traditional territory extends north of the U.S.-Canada border.

Three levels of court in British Columbia agreed with Mr. Desautel. ¹ In October 2020, the Province argued their final appeal to the Supreme Court of Canada. The Supreme Court's decision, expected in 2021, will determine whether Indigenous groups located outside of Canada can nonetheless hold section 35 rights.

Southwind v. Canada (Saskatchewan)

The Lac Seul First Nation (adherent to Treaty 3) initiated this action in 1991 seeking equitable compensation, punitive damages, and a declaration respecting their reserve lands that had been flooded by the construction of a dam at Ear Falls in 1929. The Federal Court found that Canada had breached its fiduciary obligations towards the Lac Seul First Nation and awarded the First Nation just over $30 million in equitable compensation, calculated by estimating the 1929 dollars of the lost reserve land, and...