Aboriginal claims and the forestry industry: Claims processes and recent developments in the courts

Forestry Chronicle

Volumn 74, Issue 3, 1998, Pages 334-342

  House, R David ^a  

^a NONE

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EID: 0031825983     PISSN: 00157546     EISSN: None     Source Type: Journal    
DOI: 10.5558/tfc74334-3     Document Type: Review

References (68)

1. Delgamuukw v. British Columbia (December 1997), File No. 23799 (S.C.C.) [hereinafter Delgamuukw].
2. [1973] S.C.R. 313.
3. Department of Indian Affairs and Northern Development, Federal Policy for the Settlement of Native Claims (Ottawa: Department of Indian Affairs and Northern Development, 1993) at i.
4. The twelve comprehensive claims agreements which have come into effect (six of which are related to the Yukon) are as follows: The James Bay and Northern Quebec Agreement (1977); The Northeastern Quebec Agreement (1978); The Inuvialuit Final Agreement (1984); The Gwich'in Agreement (1992); The Nunavut Land Claims Agreement (1993); and, The Sahtu Dene and Metis Agreement (1994). Six claims relate to the Yukon and are based on the Council for Yukon Indians Umbrella Final Agreement (1993) and corresponding self-government agreements: The Vuntut Gwich'in First Nation (1995); The First Nation of Nacho Nyak Dun (1995); The Teslin Tlingit Council (1995); The Champagne and Aishihik First Nations (1995); The Little Salmon/Carmacks First Nation (1997); and, The Selkirk First Nation (1997).
5. Supra note 4 at 5.
6. Department of Indian Affairs and Northern Development, Outstanding Business, A Native Claims Policy - Specific Claims, (Ottawa: Minister of Supply and Services, 1982) at 20, reprinted in [1994] 1 I.C.C.P. 171-85 [hereinafter Specific Claims Policy cited to ICCP]. The Specific Claims Policy was revised in 1991 and in December of 1992, a draft Process Manual for Specific Claims was developed in order to assist parties in the submission of claims.
7. Department of Indian Affairs and Northern Development, Outstanding Business, A Native Claims Policy - Specific Claims, (Ottawa: Minister of Supply and Services, 1982) at 20, reprinted in [1994] 1 I.C.C.P. 171-85 [hereinafter Specific Claims Policy cited to ICCP]. The Specific Claims Policy was revised in 1991 and in December of 1992, a draft Process Manual for Specific Claims was developed in order to assist parties in the submission of claims.
8. Ibid. at 179. It is noteworthy that recently the Minister Jane Stewart has impliedly accepted that an outstanding "lawful obligation" also includes a breach of fiduciary duty on the part of the Crown. On December 18, 1997, the Minister decided to accept for negotiation the claims of the Kahkewistahaw First Nation and Moosomin First Nation. The ICC had concluded, in two detailed reports to the Minister, that the Crown owed an outstanding lawful obligation to the Kahkewistahaw First Nation and Moosomin First Nation based on breaches of the Crown's fiduciary duty to the First Nations in surrenders of reserve land (see, In Re Moosomin First Nation, Report on: 1909 Reserve Land Surrender Inquiry, March 1997, and In Re Kahkewistahaw First Nation, Report on: 1907 Reserve Land Surrender Inquiry, February 1997). In the past, the breadth of the meaning of "lawful obligation" had been consistently disputed by representatives of Canada as not including fiduciary duties. In accepting the Kahkewistahaw and Moosomin claims for negotiation, a persuasive argument can be made that the scope of specific claim inquiry has been significantly broadened.
9. Ibid. at 179. It is noteworthy that recently the Minister Jane Stewart has impliedly accepted that an outstanding "lawful obligation" also includes a breach of fiduciary duty on the part of the Crown. On December 18, 1997, the Minister decided to accept for negotiation the claims of the Kahkewistahaw First Nation and Moosomin First Nation. The ICC had concluded, in two detailed reports to the Minister, that the Crown owed an outstanding lawful obligation to the Kahkewistahaw First Nation and Moosomin First Nation based on breaches of the Crown's fiduciary duty to the First Nations in surrenders of reserve land (see, In Re Moosomin First Nation, Report on: 1909 Reserve Land Surrender Inquiry, March 1997, and In Re Kahkewistahaw First Nation, Report on: 1907 Reserve Land Surrender Inquiry, February 1997). In the past, the breadth of the meaning of "lawful obligation" had been consistently disputed by representatives of Canada as not including fiduciary duties. In accepting the Kahkewistahaw and Moosomin claims for negotiation, a persuasive argument can be made that the scope of specific claim inquiry has been significantly broadened.
10. Ibid. at 179. It is noteworthy that recently the Minister Jane Stewart has impliedly accepted that an outstanding "lawful obligation" also includes a breach of fiduciary duty on the part of the Crown. On December 18, 1997, the Minister decided to accept for negotiation the claims of the Kahkewistahaw First Nation and Moosomin First Nation. The ICC had concluded, in two detailed reports to the Minister, that the Crown owed an outstanding lawful obligation to the Kahkewistahaw First Nation and Moosomin First Nation based on breaches of the Crown's fiduciary duty to the First Nations in surrenders of reserve land (see, In Re Moosomin First Nation, Report on: 1909 Reserve Land Surrender Inquiry, March 1997, and In Re Kahkewistahaw First Nation, Report on: 1907 Reserve Land Surrender Inquiry, February 1997). In the past, the breadth of the meaning of "lawful obligation" had been consistently disputed by representatives of Canada as not including fiduciary duties. In accepting the Kahkewistahaw and Moosomin claims for negotiation, a persuasive argument can be made that the scope of specific claim inquiry has been significantly broadened.
11. Ibid.
12. Ibid. at 180.
13. Supra note 7 at 181.
14. Ibid. at 184-5.
15. Ibid. at 184.
16. Ibid. at 185.
17. Supra note 1 at para. 120.
18. Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Vol. 5, (Ottawa: Canada Communication Group, 1996) at 153, 183-4.
19. (28 October 1997), File No. B/M/114/96 (N.B.Q.B.) [hereinafter Paul].
20. (7 November 1997), File No. CA021277 (B.C.C.A.) [hereinafter Haida Nation].
21. R.S.N.B. 1973, c. C-38.1.
22. R. v. Paul (1996), 145 D.L.R. (4th) 472 (N.B. Prov. Ct).
23. Supra note 16 at para. 12.
24. (1886-87) 13 O.A.R. 148, particularly the reasons of Chief Justice Hagarty at 160-1; aff' d sub nom. St. Catharines Milling and Lumber Co. v. The Queen (1887), 13 S.C.R. 577, aff' d (1888), 14 A.C. 46 (P.C.).
25. Supra note 16 at para. 17.
26. Ibid. at para. 20.
27. Ibid. at para. 43
28. The term usufruct has been defined as: "the right of temporary possession, use, or enjoyment of the advantages of property belonging to another, so far as may be had without causing damage or prejudice to it." Ususfruct has also been defined as "use, enjoyment, or profitable possession (of something)." From Smith v. The Queen, [1983] 1 S.C.R. 554 at 568-9.
29. Supra note 16 at para. 69.
30. Ibid. at para. 46.
31. Ibid. at para. 69.
32. Ibid. at para. 71.
33. R.S.B.C. 1979, c. 140 (now R.S.B.C. 1996, c. 157).
34. (1995), 15 B.C.L.R. (3d) 154 (B.C.S.C).
35. Supra note 17 at para. 4.
36. Ibid. at para. 32.
37. Ibid.
38. Ibid. at para. 36.
39. Ibid. at para. 37.
40. Ibid. at para. 40.
41. Ibid. at para. 41.
42. [1991] 3 W.W.R. 97 (B.C.S.C.).
43. [1993] 5 W.W.R. 97.
44. Supra note 1 at para. 87.
45. Ibid. at para. 106.
46. Ibid. at para. 111.
47. Ibid. at para. 111 and 138.
48. Ibid. at para. 113.
49. Ibid. at para. 117.
50. Ibid. at para. 115.
51. Ibid. at para. 113.
52. Ibid. at para. 117.
53. Ibid. at para. 129.
54. Ibid. at para. 120.
55. Ibid. at para. 142.
56. Ibid. at para. 148.
57. Ibid. at para. 149.
58. Ibid. at para. 153.
59. Ibid. at para. 154.
60. Ibid. at para. 158-9.
61. Ibid. at para. 125.
62. Ibid. at para. 128.
63. Ibid.
64. Ibid.
65. Ibid. at para. 130.
66. Ibid. at para. 131.
67. Ibid. at para. 132.
68. Ibid. at para. 186.