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Teaching Dickson v Vuntut Gwitchin First Nation

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On March 13, 2025

In Aboriginal, Constitutional, Statutory Interpretation, Supreme Court of Canada

 By: Robert Hamilton, Jennifer Koshan, and Jonnette Watson Hamilton

Case Commented On: Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII)

PDF Version: Teaching Dickson v Vuntut Gwitchin First Nation

It has been a year since the Supreme Court of Canada released its landmark decision in Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII), and many of us are still grappling with how to include Dickson in our teaching materials. For those teaching international law, or the interplay between Canadian law, Indigenous law, and international law, this previous post might be a useful summary of Dickson’s commentary (or lack thereof) on the legal significance of Canada’s adoption and implementation of the UN Declaration on the Rights of Indigenous Peoples. In this post, we deal with another important issue – whether the Canadian Charter of Rights and Freedoms applies in the context of modern treaties, or at least in the context of the treaty and surrounding documents that governed the dispute between Cindy Dickson and the Vuntut Gwitchin First Nation (VGFN). We provide a summary and critique of the judgments of the Supreme Court on this issue, which concern the interpretation and application of section 32(1) of the Charter in light of constitutional text, history, and precedents as applied to the facts at hand. The majority judgment of Justices Nicolas Kasirer and Mahmud Jamal provide an excellent summary of previous jurisprudence on section 32(1) and could replace a swath of case law on the constitutional law syllabus. But the concurring judgment of Justices Sheilah Martin and Michelle O’Bonsawin, and the dissenting judgment of Justice Malcolm Rowe, are also worthy of discussion given their insights on the complexities of debates surrounding the issue of Charter application. We hope that this summary of the various judgments and our commentary on those judgments will be helpful for those teaching constitutional law and adjacent subjects. We also plan to write a second post focusing on the section 15(1) and section 25 Charter issues in Dickson.

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Modern Treaties, Shared Territories and Party Status in Aboriginal Title Litigation

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On September 23, 2024

In Aboriginal, Indigenous, Treaty Rights

By: Nigel Bankes

Case commented on: Malii v British Columbia, 2024 BCSC 85 (CanLII), aff’d Nisg?a’a Nation v Malii, 2024 BCCA 313 (CanLII)

PDF Version: Modern Treaties, Shared Territories and Party Status in Aboriginal Title Litigation

Overlapping claims and shared territories present challenges in the negotiation of modern treaties that are best worked out by the Indigenous Nations themselves, drawing on their own laws and protocols. But this does not always prove possible and one party or another may initiate litigation in the courts of the settler state. Unfortunately, this is not uncommon and there are now dozens of cases dealing with overlapping claims or shared territories in the context of modern treaty negotiations. One group of cases deals with the scenario in which Nation A is moving to finalize a modern treaty with the Crown, while Nation B takes the view that the territory encompassed by the proposed treaty is territory that Nation B also used more or less intensively. Nation B therefore files a competing claim and also seeks injunctive relief to prevent finalization or ratification of the proposed treaty. The courts have typically rejected applications for injunctive relief and the substantive claims may drag on for years if not decades. A case in point is the Benoanie litigation in which the applicant Nations with reserves in Northern Manitoba and Saskatchewan sought to enjoin ratification of the Nunavut Agreement: Fond du Lac Band et al v Canada (Minister of Indian and Northern Affairs, 1992 CanLII 2404 (FC).

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Restoule: Tugging on the Rope and the Duty of Diligent Implementation of Treaty Promises  

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On August 8, 2024

In Aboriginal, Indigenous, Reconciliation, Treaty Rights

By: Nigel Bankes

Case Commented On: Ontario (Attorney General) v Restoule, 2024 SCC 27 (CanLII)

PDF Version: Restoule: Tugging on the Rope and the Duty of Diligent Implementation of Treaty Promises

[T]he trial judge found that the Robinson Treaties were motivated largely by the principles of kinship and mutual interdependence, as reflected in the Covenant Chain. This enduring alliance has been depicted using the metaphor of a ship tied to a tree with a metal chain: “The metaphor associated with the chain was that if one party was in need, they only had to ‘tug on the rope’ to give the signal that something was amiss, and ‘all would be restored’” … The Anishinaabe treaty partners have been tugging on the rope for some 150 years now, but the Crown has ignored their calls. The Crown has severely undermined both the spirit and substance of the Robinson Treaties.

Per Justice Jamal at para 286

In a unanimous judgment authored by Justice Jamal, Ontario (Attorney General) v Restoule, 2024 SCC 27 (CanLII), the Supreme Court of Canada has confirmed that the Crown has a duty of diligent implementation of treaty promises that is informed not by fiduciary principles, but by the honour of the Crown. And in this case, the Crown was clearly in breach of that duty since, as Justice Jamal noted in words that will ring down through the decades: “For well over a century, the Crown has shown itself to be a patently unreliable and untrustworthy treaty partner in relation to the augmentation promise. It has lost the moral authority to simply say ‘trust us’” (at para 262).

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A Misstep on the Road to Reconciliation

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On July 19, 2024

In Aboriginal, Indigenous, Reconciliation

By: David Leitch

Matter commented on: R c Montour, 2023 QCCS 4154 (CanLII)

PDF Version: A Misstep on the Road to Reconciliation

Critics of the Supreme Court of Canada’s definition of aboriginal rights in R v Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 SCR 507 may applaud the Quebec Superior Court’s decision in R c Montour, 2023 QCCS 4154 (CanLII) that attempts to re-write this definition so that it conforms to the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration). But this post maintains that court-based battles of this kind do little to promote reconciliation. The Declaration will better promote reconciliation by being implemented through new treaties and federal legislation drafted in consultation with Indigenous peoples.

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Can the Federal Government Compel Provincial Authorities to Respect an Indigenous Right of Self-Government?

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On June 3, 2024

In Aboriginal, Constitutional, Indigenous

By: Robert Hamilton

Case Commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII)

PDF Version: Can the Federal Government Compel Provincial Authorities to Respect an Indigenous Right of Self-Government?

The Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII) (SCC Reference) is one of the most significant Supreme Court of Canada (SCC) decisions concerning Indigenous Peoples of the past decade. I summarized the decision here, Nigel Bankes and I commented on the Court’s treatment of UNDRIP here, and Nigel Bankes commented on implications for the “lands reserved” head of power under s 91(24) here.

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