Author: Kent McNeil Page 1 of 2

Kent McNeil is a Distinguished Research Professor (Emeritus) at Osgoode Hall Law School and an honorary member of the Indigenous Bar Association.

Case Commented On: Wesley v Alberta, 2024 ABCA 276 (CanLII), leave to appeal denied, Stoney Indian Band, et al. v His Majesty the King in Right of the Province of Alberta, et al., 2025 CanLII 44340 (SCC)

PDF Version: The Application of Provincial Statutes of Limitation to Indigenous Claims

The application of provincial statutes of limitation to Indigenous rights claims has become a major issue in recent years (for detailed discussion, see Kent McNeil & Thomas Enns, “Procedural Injustice: Indigenous Claims, Limitation Periods, and Laches” (2022) All Papers (McNeil & Enns). Because many of these claims are based on alleged wrongs committed long in the past, both the provincial and federal governments often rely on the expiry of statutory limitation periods and the equitable doctrine of laches to prevent them from ever being decided on their merits. The Supreme Court has generally accepted the limitations defence insofar as claims for substantive relief such as damages are concerned, but has ruled that declarations of Crown wrongdoing that are designed to promote negotiations, without entailing any consequential remedial relief, are not barred by limitation periods (e.g. see Manitoba Metis Federation Inc. v Canada (Attorney General), 2013 SCC 14 (CanLII); Shot Both Sides v Canada, 2024 SCC 12 (CanLII)). The Alberta Court of Appeal decision in Wesley v Alberta, 2024 ABCA 276 (Wesley ABCA), is a recent example of the application of limitation periods that, in my view, reveals a persistent lack of willingness by the courts to give serious consideration to the constitutional issues at stake.

“Declarations of Aboriginal Title Are Not Discretionary”

By Kent McNeil

On February 11, 2026

In Aboriginal, Constitutional, Indigenous, Property, Reconciliation

By: Kent McNeil

Case Commented On: JD Irving, Limited et al v Wolastoqey Nations, 2025 NBCA 129 (CanLII); Wolastoqey Nations v New Brunswick and Canada, et al., 2024 NBKB 203 (CanLII)

PDF Version: “Declarations of Aboriginal Title Are Not Discretionary”

Robert Hamilton has already posted an ABlawg article on the recent New Brunswick Court of Appeal decision in the Wolastoqey Nations case. In it, he does an excellent job of summarizing the issues on the motion to strike the industrial defendants from the proceedings and of critically analyzing the Court of Appeal’s decision. I will therefore focus my commentary on what I regard as another troubling aspect of the decision, namely that a judicial declaration does not necessarily follow from a factual finding of Aboriginal title.

This action was brought by the Wolastoqey Nations against Canada, New Brunswick, and a number of industrial, fee simple landowners who brought the motion to strike to avoid participation in the litigation. On such a motion, the facts alleged in the statement of claim are assumed to be established. The question was thus limited to whether these landowners were proper parties.

Tikanga Maori: The Application of Maori Law and Custom in Aotearoa/New Zealand

By Kent McNeil

On November 17, 2022

In Aboriginal, Indigenous

By: Kent McNeil

Matter Commented On: Ellis v The King, [2022] NZSC 114 (7 October 2022)

PDF Version: Tikanga Maori: The Application of Maori Law and Custom in Aotearoa/New Zealand

Editor’s Note: Please note that WordPress does not support the inclusion of accents on the Maori words in this post, but they appear in the official PDF version.

In October, New Zealand’s highest court released a landmark decision on the relationship between tikanga Maori (Maori law and practice) and the common law (for English translation of Maori terms, I rely on the Glossary in Carwyn Jones, New Treaty, New Tradition: Reconciling New Zealand and Maori Law (Victoria University Press, 2016) at xv-xvii). This decision has particular relevance for Canada because the place of Indigenous law in this nation is an emerging issue (Sébastien Grammond, “Recognizing Indigenous Law: A Conceptual Framework” (2022) 100:1 Can Bar Rev 1). In Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185 (CanLII), the Quebec Court of Appeal unanimously upheld the validity (with a couple of exceptions not relevant to our discussion) of federal legislation that acknowledged inherent Indigenous jurisdiction to make laws that would be enforceable in Canadian courts (for a series of ABlawg posts on this reference, see here). As this decision is currently under appeal to the Supreme Court of Canada, it is especially pertinent to consider how the New Zealand Supreme Court has dealt with the application of tikanga Maori.

The Inherent Indigenous Right of Self-Government

By Kent McNeil

On May 4, 2022

In Aboriginal, Indigenous, Provincial Court

By: Kent McNeil

Matter Commented On: Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185 (CanLII) [Quebec Reference, quotations from the unofficial English translation]

PDF Version: The Inherent Indigenous Right of Self-Government

In this Quebec Reference, the Attorney General of Quebec challenged the constitutional validity of the federal Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c24. This statute acknowledges that the Indigenous peoples of Canada have an inherent right of self-government, which includes jurisdiction over child and family services and is recognized and affirmed by section 35(1) of the Constitution Act, 1982. The Quebec Court of Appeal (CA) rejected Quebec’s contention that this statute is beyond the jurisdiction of Parliament. The Act’s pith and substance, the CA said, is to ensure the well-being of Indigenous children, and this is clearly within Parliament’s jurisdiction over “Indians” in section 91(24) of the Constitution Act, 1867. The CA also decided that the Act does not amend the Constitution by acknowledging the inherent right of self-government because this right is already an Aboriginal right within section 35(1). The constitutional validity of the Act was therefore upheld, with the exception of two provisions that would have given some Indigenous laws relating to family matters absolute paramountcy over provincial laws. This decision is now on appeal to the Supreme Court of Canada.

This comment focuses on the CA’s decision on the existence and nature of the inherent right of self-government. It addresses the question of whether this aspect of the decision is consistent with Supreme Court case law, especially R v Pamajewon, 1996 CanLII 161 (SCC), [1996] 2 SCR 821, the only case in which the Court has addressed the issue of Indigenous self-government directly.

Indigenous Rights and Private Party Liability

By Kent McNeil

On January 26, 2022

In Aboriginal, Torts

By: Kent McNeil

PDF Version: Indigenous Rights and Private Party Liability

Matter Commented On: Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc, 2022 BCSC 15 (CanLII)

To what extent can private parties be held liable in tort law, specifically nuisance, for damage done to Indigenous rights? This was the issue in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc, 2022 BCSC 15 (CanLII) [Thomas]. In 1952, the Aluminum Company of Canada (now Rio Tinto Alcan Inc., or RTA) completed construction of a dam on the Nechako River in west-central British Columbia to generate electricity for its aluminum smelting operations. Construction of the dam had been authorized by agreements with and a licence from British Columbia pursuant to a provincial statute, the Industrial Development Act, SBC 1949, c 31, which had been enacted to facilitate construction of the hydroelectric dam (Thomas, paras 66-69). The company has abided by all the conditions of the agreements and the licence.