Huron-Wendat Nation of Wendake v. Canada

Overlapping claims - Duty to consult - Agreement-in-principle - Non-derogation clause - Treaty of 1760 - Judicial review

The Federal Court of Canada released a decision on December 1, 2014 in Huron-Wendat Nation of Wendake v. Canada (Indian Affairs) [unrevised certified English translation], granting in part the Huron-Wendat Nation's judicial review application with respect to an agreement-in-principle signed in March 2004 by the federal and provincial governments and various Innu First Nations (including the Mashteuiatsh and Innu Essipit First Nations intervening in this application). The Court issued a declaration that the Crown had breached it duty to consult the Huron-Wendat Nation prior to signing the agreement-in-principle, but it rejected the applicant’s other claims for relief such as mandamus to prevent the signing of a final agreement between these parties.

The Huron-Wendat Nation signed a peace treaty with the British in 1760 as the Seven Years’ War between the European powers was approaching its climax and the struggle between the French and the British over control of North America required strategic alliances with Indigenous peoples. Following the treaty’s recognition in the 1990 decision of the Supreme Court of Canada in R. v. Sioui, the Huron-Wendat Nation entered into negotiations with the government of Québec regarding the exercise of their treaty rights as well as parallel self-government negotiations with the federal government. For various reasons, these negotiations fell apart and in a 1996 referendum 88% of the Huron-Wendat Nation’s members rejected the pursuit of further negotiations. Since then, the Huron-Wendat Nation has not formally entered into negotiations with either Crown over a comprehensive claim, treaty rights or self-government.

The Innu Nations intervening in this matter, on the other hand, had been pursuing formal negotiations of their own claims with the federal government since as early as 1979. In 2004, the provincial and federal governments signed an agreement-in-principle with the Mamuitun mak Nutashkuan Tribal Council, representing the intervening Innu Nations among others with respect to their land claims. The Huron-Wendat Nation was concerned with the potential for this agreement-in-principle to prejudice its own outstanding claims due to overlaps in terms of the territory it covered, and they sought a meeting with Indian and Northern Affairs Canada (INAC, as it then was) on this basis. Rather than agreeing to such a meeting, INAC responded by noting their policy to only enter into a final agreement if that agreement does not impact the rights of other First Nations. The Huron-Wendat Nation sought further assurances that no final agreement would be entered into between the Crown and the Innu Nations with respect to the contested territory, and when the federal government refused to commit to such a position, the Huron-Wendat Nation brought this judicial review application. The application was initially adjourned so that the parties could engage in further negotiations, but when further discussions still failed to resolve the matter in a satisfactory manner for all parties, the application was amended and once more pursued by the Huron-Wendat Nation.

The Court held that the Crown did owe the Huron-Wendat Nation a duty to consult prior to signing the agreement-in-principle. There was no doubt that both the federal and provincial governments were well aware of the Huron-Wendat Nation’s claims in 2004, and the Court found that the Crown's duty to consult as a matter of law did exist at the time, even though the Supreme Court of Canada had yet to issue its decisions in Haida and Taku River. Although the Federal Court refused to make any declaration as to the Huron-Wendat Nation’s treaty rights in the context of a judicial review application, it was satisfied that the Crown owed the Huron-Wendat Nation a level of consultation somewhere in the middle of the Haida spectrum.

The federal government argued that due to a non-derogation clause in the agreement-in-principle and the constitutional entrenchment of any treaty rights the Huron-Wendat Nation may later prove, the Huron-Wendat Nation’s rights were effectively protected from any final agreement it entered into with the Innu First Nations. Although the Court agreed with this position, it still concluded that the signing of the agreement-in-principle had sufficient practical implications for the rights of the Huron-Wendat Nation so as to trigger the Crown’s duty to consult and accommodate them before signing the document. On the other hand, the Court found that the prejudice to the Huron-Wendat Nation in this case was not so great as to require the Crown to seek their consent before signing an agreement-in-principle with the Innu First Nations.

The Court did not invalidate the agreement-in-principle as it only creates a political commitment without any real legal consequences. However, the Court did provide a declaration that the Crown had breached its duty to consult the Huron-Wendat Nation prior to signing the agreement, and noted that the level of consultation required from the Crown will increase as the parties approach the signing of a final agreement for the Innu First Nations.

Aside from the duty to consult issue, the Court also addressed whether an expert report tendered by the intervening Innu First Nations should be struck on the basis that its author had worked for the Huron-Wendat Nation as an expert on various matters in the past; the report was not struck. 

Share this story