[Note: Although this case was released several months ago and prior to the initiation of the Native Law Centre's Case Watch blog, we decided to blog this decision after acquiring an unofficial translation for publication in the Canadian Native Law Reporter.]
In the main action, four individual applicants sought to obtain a declaration of Aboriginal title, an annulment of a permit granted to the defendant Louisiana-Pacific Canada Ltd. (LPC) authorizing the harvesting of timber in one of the applicants’ family territories, a safeguard order, and a “Haida-type" interlocutory injunction. The applicants are Anishnabe (also known as Algonquin) and are elders and representatives of four families who live and draw their basic means of subsistence from their traditional family territories located within the La Vérendrye Wildlife Sanctuary in the Ottawa River watershed in Quebec. The traditional territory of these families is located outside of the Barriere Lake Indian Reserve. The applicants asserted that under Anishnabe customary law they occupy their traditional territory with the agreement of the heads of neighbouring families and the elders of each family are responsible for the stewardship of each family's territory.
The applicants further contended that they constitute a separate Aboriginal community, enjoying Aboriginal rights and title to the territory on which the timber is being harvested and for that reason are entitled to be consulted for the purposes of forest management activities affecting their traditional family territory or for the purposes of forestry harvesting authorizations granted to LPC. They alleged that the Algonquin Band Council of Barriere Lake has no jurisdiction over the territory they occupy and that the band council does not represent them, a fact they have made known to the Crown.
The Attorney General of Quebec, LPC and Résolu sought dismissal of the applicants’ motion for a safeguard order on the ground that the applicants did not have standing and did not meet the criteria required for the order to be issued. In addition, Résolu verbally raised a cause for inadmissibility on the ground of concurrent proceedings with Wawatie c PF Résolu Canada Inc, arguing that the same objective, cause of action and parties were present. The Court rejected Résolu’s argument that the applicants’ motion should be dismissed on the ground of concurrent proceedings with Wawatie, concluding that although Aboriginal title and the right to be consulted were involved in both cases, the territory concerned was not the same and the Aboriginal parties were, for the most part, not the same.
The Court then went on to dismiss the application for a safeguard order filed by the applicants, holding that the applicants did not have standing to act because the “record as constituted” did not show who had authority to represent the members of the allegedly distinct community they spoke on behalf of or who its members were. Nor was there evidence that the members of this distinct community had mandated any of the applicants to represent them.
The Court noted that its judgment should not be taken as indicating that the question of a band council’s representativeness with respect to a distinct Aboriginal community that refuses to be represented by the band council is not a serious question warranting examination. Such a question is made even more serious when there is an issue as to adequacy of consultation. “The true nature of a consultation can be called into question when there is a genuine, long-standing dissention within an Aboriginal nation, especially when the Crown has been informed of the situation", as it was in this case. The record as constituted and the facts alleged in this proceeding however did not support this approach. Further, the applicants had not impleaded the band council, even though, according to affidavit evidence, the band council had discussions with members of the dissident community and had given its consent to the project. The Court reserved the applicants' right to amend their proceeding, implead the Barriere Lake Band Council, and file a new application for a safeguard order if justified by the circumstances.