[2011] 2 F.C.R. D-13
Aboriginal Peoples
Lands
Appeal from Federal Court decision (2009 FC 982) holding that Government of Canada breaching duty to consult respondents when deciding to transfer Kapyong Barracks to Canada Lands Company Ltd. (CLC) pursuant to Treasury Board policy—Whether Canada having duty to consult respondents before deciding to transfer Barracks to CLC; if so, whether Canada having discharged duty—Reasons given by Federal Court for conclusion inadequate since not allowing for meaningful appellate review—Federal Court’s reasons rife with uncertainty, contradiction; at least eight problems noted, six of which bearing on adequacy thereof—Reasons unclear as to which respondents Canada owing duty of consultation—Federal Court failing to adequately distinguish between different circumstances of respondents as disclosed in record, argued at hearing—Uncertainty resulting from fact Federal Court overlooking Canada’s description of Barracks—Federal Court also failing to analyse importance, if any, of three distinct decisions made by Canada concerning Barracks—Reasons indicating that policy at issue amended by directive but not indicating that directive requiring Canada to consider possible effects of declaring property to be strategic on aboriginal rights or claims—Federal Court not making any finding as to what impact dispute resolution mechanism available to Brokenhead having on ability thereof to claim relief from courts—Federal Court’s rebuke of Canada’s argument that duty to consult not existing, or alternatively that if duty existing, duty fulfilled ambiguous given that alternate arguments by party staple of litigation, regularly accepted by courts—Making misleading statement regarding one of respondent’s entitlement to surplus federal land per treaty land entitlement agreement—Federal Court’s reasons inadequate, not grappling with, attempting to resolve difficult legal issues, confusing evidentiary record before Court—Appeal allowed.
Brokenhead First Nation v. Canada (A-446-09, 2011 FCA 148, Nadon J.A., judgment dated May 3, 2011, 20 pp.)