[2014] 1 F.C.R. D-1
Aboriginal Peoples
Lands
Application seeking declaration that respondent Minister, as an aspect of duty to negotiate in good faith land claim by applicant, must consider all options including acquisition of third party interests in disputed land, return of land to applicant—Applicant alleging disputed land wrongfully alienated by Crown—Respondent accepting claim for negotiation in accordance with criteria of Specific Claims Policy—Respondent stating Policy not permitting land-based settlement, only financial compensation—Applicant having no mandate to surrender land, not willing to accept monetary compensation requiring land be surrendered—Respondent making public statements explaining that government would not expropriate any land—Whether matter justiciable, requirements of good faith satisfied—Crown having to negotiate in good faith as matter of honour—Courts may not review or dictate negotiation positions—However, court declaration may assist in clarifying legal duties of parties—Here, Policy additional factor creating legitimate expectation as to how negotiation will unfold—Honour of Crown justiciable issue—Court can assist in clarifying content of that duty in present circumstance—Open to respondent to take negotiation position that, in any specific dispute, land must be surrendered—However, good faith negotiation requiring acknowledgement that Policy containing no blanket prohibition on settlement involving return of land without surrender—Policy leaving it open that expropriation may be necessary for just settlement—No blanket prohibition on dispossessing third parties, only statement that third parties generally will not be dispossessed—Removing option of land-based settlement from Policy not accomplished by making public statements—Respondent’s public statements fettering discretion—Policy reaffirming possibility of land-based settlement—Respondent having to acknowledge scope of discretion, mandate under Policy—No evidence respondent breaching duty of good faith—Declaratory relief granted: Policy permitting settlement involving return of land; duty of good faith requiring Crown to acknowledge distinction between scope of administrative action available to it under Policy, as opposed to action it chooses to take—Application allowed.
Mohawks of the Bay of Quinte v. Canada (Indian Affairs and Northern Development) (T-951-10, 2013 FC 669, Rennie J., reasons for judgment dated June 18, 2013, 20 pp.)