Category: Indigenous Page 1 of 8

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.

Limiting Contractual Liability for Breaching the Duty of Good Faith

By Jassmine Girgis

On February 24, 2026

In Contracts, Corporate / Commercial, Indigenous, Remedies

By: Jassmine Girgis

Case Commented On: 1401380 Ontario Limited (Wilderness North Air) v Hydro One Remote Communities Inc, 2025 ONCA 827 (CanLII)

PDF Version: Limiting Contractual Liability for Breaching the Duty of Good Faith

The contractual duty to exercise discretion in good faith applies to every contract, regardless of the parties’ intentions; parties cannot exclude the duty altogether. But what if they do not seek to exclude the duty itself, and instead seek only to limit the consequences of breaching it? Is that distinction legally meaningful? And is it permitted?

This post discusses how the duty to perform in good faith endures on both conceptual and practical grounds as long as there is liability for breaching it, even where that liability is contractually limited.

In 1401380 Ontario Limited (Wilderness North Air) v Hydro One Remote Communities Inc, 2025 ONCA 827 (CanLII), the Ontario Court of Appeal decided that parties may limit the scope of their liability for breach of the duty of good faith, and that doing so does not constitute contracting out of the duty itself.

“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.

The New Brunswick Court of Appeal Weighs in on Aboriginal Title and Private Lands

By Robert Hamilton

On January 14, 2026

In Aboriginal, Indigenous, Property

By: Robert Hamilton

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

PDF Version: The New Brunswick Court of Appeal Weighs in on Aboriginal Title and Private Lands

The New Brunswick Court of Appeal just delivered an important decision on the relationship between Aboriginal title and private property, concluding that declarations of Aboriginal title are not available where lands have been granted to private landowners. The practical and doctrinal implications are significant and could have impacts across the country. The Wolastoqey have indicated they intended to seek leave to appeal to the Supreme Court of Canada.

Gitxaala and the Conundrum of UNDRIP Implementing Legislation: The Sky Has Not Fallen In

By Nigel Bankes

On December 22, 2025

In Indigenous, International Law

By: Nigel Bankes

Case Commented On: Gitxaala v British Columbia (Chief Gold Commissioner), 2025 BCCA 430 (CanLII)

PDF Version: Gitxaala and the Conundrum of UNDRIP Implementing Legislation: The Sky Has Not Fallen In

This case, which commenced as a judicial review application, involved a challenge to the implementation and/or constitutional validity of British Columbia’s hard rock mineral regime under the terms of the Mineral Tenure Act, RSBC 1996, c 292 (MTA). The petitioners also claimed that the MTA regime was not consistent with the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP or UN Declaration) as required by section 3 of British Columbia’s “implementing” legislation, the Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 (DRIPA). This post focuses on that aspect of the case which was the only live matter by the time the case got to the Court of Appeal. A majority of that Court found in favour of the petitioners while the dissent concluded that the matter was not justiciable.