Aboriginal Peoples
Lands
Application seeking registration of adjudicator’s award with Court’s registry — Present dispute focusing on promise contained in Treaties 1, 3, 4, 5, 6, 10 pertaining to Manitoba, i.e. creation of reserves therein — That promise not kept to satisfaction of treaty First Nations — Manitoba First Nations deciding to negotiate settlement — Entering into Manitoba Framework Agreement (MFA) with Canada, Manitoba — MFA complex agreement setting out in detail process for creation of reserves to fulfil promise of treaties — Providing for detailed, exhaustive dispute resolution process — Also containing releases in favour of Canada, i.e. First Nations agreeing not to sue Canada with respect to failure to comply with provisions of treaties regarding creation of reserves —Applicant Treaty Land Entitlement (TLE) Committee beginning in 2016 formal process set forth in MFA for alleging that Canada’s consultation with Métis constituted material failure to comply with MFA — After unsuccessful negotiations, parties agreeing to send matter to binding arbitration — Adjudicator’s terms of reference identifying 35 parcels selected or acquired by seven First Nations — Adjudicator holding, inter alia, that Canada’s conduct amounting to breach of MFA, s. 40.07, which provides that MFA can only be amended by agreement of parties — Finding that Canada effectively amended MFA by inserting into agreed upon implementation process step not provided for in MFA, which has significant impact on MFA’s implementation — Also determining that Canada breaching MFA, s. 8.02, which requires amendments to Additions to Reserves Policy to be agreed to by parties — Declaring that Canada had committed event of default — Ordering Canada to negotiate amendment to MFA — Following adjudicator’s award, negotiations took place without result — Thus applicants asking Court to register award, to declare that releases, indemnities contained in each applicant First Nation’s TLE agreement now void — Canada arguing that applicants not showing that registering award would serve any purpose — Also of view that voiding releases would be unjust, because 28 of 35 parcels at issue now added to reserves — Asserting that parties to MFA intending Court to exercise discretion regarding appropriateness of issuance of declaration —Whether award should be registered — Applicants entitled as of right to have award registered — Contrary to philosophy underpinning Commercial Arbitration Code (Code), being Schedule to Commercial Arbitration Act, R.S.C., 1985 (2nd) Supp.), c. 17 to refuse registration — Code, arts. 35, 36 providing that registration of arbitral award obtained as of right, refused only for grounds enumerated in art. 36 — Whether applicant First Nations’ entitled to declaration voiding their releases — All applicant First Nations entitled to declaration — Conditions for issuance of declaratory judgment met — MFA product of careful balancing of parties’ interests — Court should not, through exercise of its discretion, displace detailed, negotiated bargain as primary source of justice between parties — Overall intent emerging from reading of entire dispute resolution provisions that courts only playing subsidiary role in resolution of disputes — Invoking Court’s discretion must not be manner of relitigating issues already decided in arbitration — Applicants should not be deprived of remedy contemplated by MFA because reserve creation process has reached its conclusion with respect to 28 parcels— Event of default is lack of agreement, not failure to negotiate — Canada not relieved of its duty to reach agreement to amend MFA because it feels it has negotiated enough or that its negotiating position reasonable — Canada’s submissions regarding disproportionality attempt to relitigate issue under another name — Canada asking for more lenient consequence for its default than what is contemplated in MFA — Contrary to honour of Crown to allow Canada to impose its own view of what is just in circumstances — Adjudicator’s award directed to be registered — Releases, indemnities given by applicant First Nations in their TLE agreements declared void, ineffective in whole — Application allowed.
Treaty Land Entitlement Committee Inc. v. Canada (Indigenous and Northern Affairs) (T-336-19, 2021 FC 329, Grammond J., reasons for judgment dated April 23, 2021, 36 pp.)