Jun 14, 2018

AREAS OF LAW: First Nations; Treaty rights; Reserves; Land in severalty; Summary dismissal

Goodswimmer v Canada (Attorney General), 2017 ABCA 365 (CanLII)

The Crown has no independent duty to consult when engaged in negotiations with a First Nation over aboriginal rights; the negotiation itself is the consultation. ~


BACKGROUND: The Appellant Sturgeon Lake Indian Band is a signatory to Treaty 8, signed in 1900. It became apparent that the size of the Band’s Reserve had not been properly calculated when it was surveyed in 1908. In 1985, the Respondent Government of Canada accepted the Band’s claim for negotiation regarding its reserve land entitlement under the Treaty. The Band issued a statement of claim against the Respondent Province of Alberta in 1987, alleging that Alberta was in possession of lands that were subject to the Appellants’ claims and had granted permission to third parties to exploit them. Following lengthy negotiations, the Band signed a Treaty Land Entitlement Settlement Agreement with Canada. The settlement was approved in principle in a referendum of Band members conducted by the Chief and Council. Canada and Alberta entered a companion agreement, under which Alberta agreed to transfer certain unoccupied Crown lands to the Band as contemplated by the settlement. The Band received 16,207 acres of land, increasing the size of the Reserve by about 72%. It also received $6,148,835 in cash. The settlement was reflected in a consent order in the 1987 action. The settlement reproduced the reserve land clause found in Treaty 8, which included the right to land in severalty for those Band members who preferred not to live on the Reserve. The settlement contained release and indemnity provisions in favour of Canada. The Canada-Alberta agreement gave Alberta releases from both Canada and the Band. In 1997 the Band and the individual Appellants issued the present Statement of Claim, asserting many claims similar to those that were made in the 1987 action. The Respondents brought applications to strike or summarily dismiss significant portions of the claim. They alleged that the 1997 action was an attempt to re-litigate settled matters and that in any event the limitation period had expired with respect to many of the claims. They further alleged that some of the other claims did not disclose a cause of action. In 2016, the case management judge struck and summarily dismissed many parts of the Statement of Claim.


APPELLATE DECISION: The appeal was dismissed. The Appellants advanced several grounds of appeal. The Court of Appeal found that any duty to consult had been discharged. There was no duty to consult individual members of the Band. There was no merit to the argument that the Respondents had an independent duty to consult when engaged in negotiations with a First Nation over aboriginal rights; the negotiation itself is consultation. The case management judge, who had been managing the action for 15 years, was in the best position to decide the appropriate way of dealing with the various applications. After nearly two decades of litigation, the attempt to dispose summarily of some or all of the issues in the litigation could not be said to be premature. The extensive record before the court allowed a summary disposition of many issues. The case management judge correctly stated the test for summary judgment, and made no reviewable error. Once claims are settled, both parties should be expected to abide by the settlement. Many of the claims were duplicitous of claims included in the 1987 action and the negotiations, and it would be an abuse of process to re-litigate them. Many were res judicata under the consent order. The Appellants argued that Canada never properly discharged its obligations to provide land in severalty, and argued that the right to land in severalty is an individual right of certain members of the Band, such that the Band could not release those claims in the settlement. The Court found that on its plain wording the settlement covered any claim to land in severalty. The negotiation and execution of the settlement agreement did not involve any breach of duty by the Respondents, and the Appellant failed to show any reason why the settlement would not be enforceable according to its terms.