Category: Reconciliation

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.

Treaty-Making in Australia and Considerations for Canada

By Robert Hamilton

On October 22, 2025

In Indigenous, Reconciliation, Treaty Rights

By: Robert Hamilton and Harry Hobbs

Matter Commented On: Victoria’s Statewide Treaty and Statewide Treaty Bill 2025

PDF Version: Treaty-Making in Australia and Considerations for Canada

Indigenous peoples in Australia have long sought to establish treaty relationships with the state. While important advocacy efforts such as the 1988 Barunga Statement and the final report of the Council for Aboriginal Reconciliation in 2000 failed to lead to negotiations at the national level, a statewide treaty was recently signed in the state of Victoria. The first formal Indigenous treaty ever negotiated in Australian history, the Victorian Statewide Treaty is a novel model of treaty that is worth considering closely in Canada, particularly as Indigenous peoples and federal, provincial, and territorial governments continue to look for productive ways to implement historic and modern treaty promises and craft novel forms of agreement. Creative thinking is required to take steps to meet the Crown’s constitutional obligations to diligently implement treaty promises, proactively assess and manage cumulative impacts on Aboriginal and treaty rights, meaningfully implement modern treaty and self-government agreements, and satisfy its obligations under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Recent discussions about the relationship between treaty rights and a secession referendum in Alberta (which one of us discussed here) also illustrate the importance of thinking creatively about the relationship between Indigenous self-determination, treaty rights, and other democratic state process and institutions. This blog summarizes Victoria’s Statewide Treaty and the proposed bill that will implement it.

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

By Nigel Bankes

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).

A Misstep on the Road to Reconciliation

By David Leitch

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.