We've decided to start a series of short case briefs providing notice and short summaries of new Aboriginal law decisions that are noteworthy but may not deserve a full case comment. Here's the first one.
Lac La Ronge Indian Band v. Canada, 2015 FCA 154
Judicial review of Specific Claims Tribunal decision regarding unlicensed timber harvesting on reserve lands between 1904 and 1910.
The Tribunal found Canada liable for having failed to properly manage timber on the reserve. Nonetheless, the Lac La Ronge Indian Band and Montreal Lake Cree Nation sought judicial review of the Tribunal’s decision on the basis that:
- the Tribunal erred in concluding that the issue of whether or not to prosecute an unlicensed timber harvester under the Indian Act was not part of its fiduciary duty to the First Nations;
- the Tribunal erred in concluding that the surrender of timber on reserve was valid; and
- there was a reasonable apprehension that the Tribunal was biased in regards to compensation.
Application dismissed. The Court held that although the principle of prosecutorial discretion did not arise, Canada’s fiduciary duty included the power to lay a charge under the Indian Act and Canada’s failure to prosecute was relevant to determining compensation.
The Court rejected the allegation of apprehension of bias and directed the Tribunal to consider the parties’ agreement that the surrender was invalid when determining compensation.
The Court agreed with the Tribunal that in determining whether Canada had breached its fiduciary duty it was sufficient for the Tribunal to conclude that Canada had failed to pursue any of the measures available under the Indian Act to protect the First Nations’ interests. The Tribunal was not required to go further and assess the various options available to Canada.
Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.
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