Interview Video: Indigenous Self-Government & the C-92 Reference w/ Lisa Weber

Q&A with Bridget Gilbride: Litigating Dickson v Vuntut Gwitchin First Nation

In this Q&A session, CCS summer student Juliana Quan interviews lawyer Bridget Gilbride (Fasken Martineau DuMolin), who is representing claimant Cindy Dickson in a landmark Charter case currently before the Supreme Court of Canada. For more info on the Dickson case, see here:



Q: We are currently awaiting the Supreme Court of Canada’s decision in the case of Dickson v VGFN. Could you briefly summarize the legal dispute that the Court will be addressing?



A: The case arises because the appellant, Cindy Dickson, a citizen of the Vuntut Gwitchin First Nation, is barred from serving on the VGFN’s government because she lives in Whitehorse, not Old Crow, the only community within the VGFN’s Settlement Land. The majority of VGFN citizens live outside of their Settlement Land (including a large contingent in Whitehorse), and the VGFN exercises considerable legislative authority over all their citizens in Yukon. Ms. Dickson brought a Charter challenge to VGFN’s residency requirement on the ground that it discriminates against her based on where she lives, relying on a previous decision of the Supreme Court of Canada, Corbière v Canada. There are three issues before the Supreme Court: 1) whether the Charter applies to the Vuntut Gwitchin government, an Indigenous self-government in Canada; 2) if the Charter applies, whether section 25 operates to shield the residency requirement from Charter review; and 3) if the Charter applies, whether the residency requirement is discriminatory, as found by the courts below.



Q: The Yukon Court of Appeal found that the Charter applies to the VGFN and that its residency requirement is discriminatory but is shielded from invalidation by section 25 of the Charter. What are your thoughts on the idea that section 25 can function as an effective shield against Charter claims? Are there other interpretive approaches to section 25 that might be preferable?



A: We argued that section 25 is an interpretative provision that should not be applied as an automatic shield and should not bypass the balancing exercise required by section 1 of the Charter.  In circumstances in which an Indigenous right will be negated through the application of the Charter, section 25 may well operate as a shield, but the analysis should be case-by-case, so that harm arising from the Charter infringement can be considered and balanced as part of the analysis. Specifically, we argued that section 25 should not operate to automatically shield laws of Indigenous governments, having the effect of providing lesser protections to Indigenous individuals than others in Canada.



Q: How might the Supreme Court’s ruling impact the relationship between Indigenous people and their governments? Are you concerned that the decision could underestimate the positive role that the Charter can play in Indigenous communities across Canada?



A: The Charter, which in large part constitutionalizes human rights recognized in important international covenants, provides basic and fundamental protections to all Canadian citizens, who are inherently vulnerable in the face of government conduct. The Charter empowers and protects individuals, which in turn strengthens democracies, including Indigenous governments.



Q: More generally, what challenges have you experienced in representing Ms. Dickson?



A: It is a privilege representing Cindy. Mostly, I regret that I have not succeeded to date in the courts below. Cindy is very courageous to bring this important issue forward, and it has not been easy on her. She tried other avenues to resolve this issue but was not left with any options other than this court challenge. I am humbled by her commitment to equality for her fellow citizens, and honoured to be part of it.


Q&A with Dr Ryan Beaton: Indigenous Rights and the Charter (Dickson v Vuntut Gwitchin First Nation)

In this Q&A, CCS Summer Student Juliana Quan talks to Dr Ryan Beaton (Power Law, Vancouver) about the case of Dickson v Vuntut Gwitchin, a major case that is currently before the Supreme Court of Canada on the application of the Charter of Rights and Freedoms to self-governing First Nations, and on the role that section 25 of the Charter might play in shielding First Nations from Charter claims.



Q: We are currently awaiting the Supreme Court of Canada’s decision in the case of Dickson v VGFN. Could you briefly summarize the legal dispute that the Court will be addressing?



A: Cindy Dickson, a citizen of the Vuntut Gwitchin First Nation (VGFN), wanted to run for election to the VGFN Council. VGFN has concluded a comprehensive land claims agreement and a self-government agreement with both Canada and Yukon. As envisioned by the self-government agreement, VGFN has adopted a VGFN Constitution, which includes a provision requiring that VGFN councillors reside on VGFN settlement lands in Yukon’s far north. Ms Dickson lives in Whitehorse in part because her son needs access to medical treatment not readily available in VGFN settlement lands hundreds of kilometres to the north. She wants to be able to serve on VGFN Council without having to relocate to VGFN settlement lands.

Ms Dickson asked the Yukon Supreme Court (YKSC) to invalidate the councillor residency requirement in the VGFN Constitution, arguing that the requirement violated her equality rights under section 15 of the Canadian Charter of Rights and Freedoms. VGFN argued that the Charter does not apply to the residency requirement because adopting that requirement — and indeed, adopting the entire VGFN Constitution of which it is a part — is an exercise of inherent Indigenous self-government or jurisdiction.

Section 32 of the Charter governs the scope of its application, stating that the Charter applies to Parliament and the federal government and to provincial legislatures and governments, as well as to all matters within the authority of Parliament (including all matters relating to the Yukon territory) and within the authority of provincial legislatures. A major questioned raised in this case is whether section 32 should be interpreted as making the Charter applicable to Indigenous legislatures and governments, even though section 32 does not mention them explicitly.

VGFN also argued in the alternative that, if the Charter does apply to the residency requirement, then section 25 of the Charter prevents the application of section 15 to invalidate the residency requirement. Section 25 states that the guarantee of rights and freedoms in the Charter “shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada.” Here it is important to note that, while the VGFN land claims agreement with Canada and Yukon states that it is a treaty within the meaning of section 35 of the Constitution Act, 1982, the self-government agreement is not a treaty in that sense. But even if the self-government agreement is understood not to be a section 35 treaty and the adoption of the residency requirement in the VGFN Constitution not the exercise of section 35 treaty rights, the adoption of the residency requirement is still arguably the exercise of “other rights and freedoms that pertain to the aboriginal peoples of Canada” within the meaning of section 25. The Supreme Court of Canada (SCC) has said very little about section 25 to date, and Dickson is likely to give us its most extensive treatment yet.

Both the YKSC and the Yukon Court of Appeal (YKCA), while differing in some details of their respective analyses and conclusions, found in essence that the Charter did apply to the residency requirement in the VGFN Constitution, but that section 25 shielded the requirement from invalidation under section 15.

The SCC will now have its say on whether the Charter applies to the residency requirement and, if so, whether section 25 shields the residency requirement from the application of section 15 or otherwise influences the interpretation of Ms Dickson’s section 15 rights on the facts of this case. Ultimately, the SCC will have to decide whether the residency requirement violates Ms Dickson’s equality rights under section 15. Whatever conclusion the SCC reaches on that final legal outcome, the reasoning it uses to get there will likely set an important landmark orienting the judiciary’s view of Indigenous law and its place in the Canadian constitutional landscape. The case also provides the SCC with a chance to finally develop a framework for the interpretation and application of section 25 of the Charter.



Q: Do you believe the Court will take this opportunity to develop a principled framework for the interpretation of section 25 of the Charter? How would you suggest this be achieved?



A: As noted above, I expect the Court to offer its most extensive treatment to date of section 25. The Court cannot hope to anticipate, let alone answer, all the questions that might arise about section 25, but I think it will have to address at least two major points:

1) What are the “other rights and freedoms that pertain to the aboriginal peoples of Canada” mentioned in section 25, and is the VGFN adoption of the residency requirement an exercise of one of these other rights or freedoms?

2) If the VGFN adoption of the residency requirement is an exercise of one of these other rights or freedoms, does section 25 render section 15 entirely inapplicable to the residency requirement or does it merely inform the interpretation of how section 15 applies to the residency requirement, for instance, by requiring the courts to adopt, where reasonably possible, an interpretation of section 15 that avoids concluding that the residency requirement violates it?

I expect the SCC to take a relatively cautious approach, given how little it has said to date on section 25. That is, I expect the Court will answer these questions on the facts of this case, deciding whether the adoption of the residency requirement is an exercise of a right or freedom within the meaning of section 25, offering some discussion of the relevant characteristics of the residency requirement but without trying to give any comprehensive definition of what qualifies as a section 25 right or freedom. Even a cautious approach should, however, yield significant answers about the Court’s approach to section 25.

The second question I note above is important: in this case, the YKSC and the YKCA essentially decided that section 25 acted as a full shield against the application of section 15 to the residency requirement, rather than as a factor shaping the interpretation of section 15. Ms Dickson argues that section 25 was never intended to shield Indigenous laws and governments against the appeal to Charter rights and freedoms by their own Indigenous citizens. On her argument, section 25 may in principle shield elements of the VGFN Constitution from Charter challenges by non-Indigenous individuals or governments, but it has no application to her appeal, as a VGFN citizen, to her rights under the Charter.

There is thus a major gap between the visions advanced by VGFN and Ms Dickson, respectively, as to how section 25 applies to the facts of this case. That gap squarely raises the question: can citizens of a First Nation invoke the Charter to challenge the laws and conduct adopted by that First Nation in exercising its inherent powers of self-government? The SCC will have to give at least some answer to that question in this case, even if the Court wants to avoid a broad discussion of section 25 that would take it far beyond the facts of the case.



Q: You have expressed doubts about the risk that the Court’s decision could create “Charter-free zones” — zones in which governmental power can be lawfully wielded in ways that contravene the Charter. Could you elaborate on this?



A: Technically, if the Charter did not apply to Indigenous laws and governments, then nothing they did would contravene the Charter — the Charter would simply not apply and the question of contravention would not arise. But precisely this result, a situation where members of Indigenous nations would be “denied” their Charter rights and freedoms in relation to their own Indigenous governments, is a result the Court will, I suspect, strongly want to avoid. Even if the Court concludes that Indigenous laws and governments should be shielded from the Charter in many contexts, the Court will almost certainly express this in terms of the balance that needs to be struck between individuals’ Charter rights and freedoms, on the one hand, and collective rights or powers of self-government, on the other.

This balancing approach likely holds much greater appeal for the Court than an approach that could be said to deny Charter rights to individuals like Ms Dickson in their interactions with their own Indigenous governments. The SCC often prides itself on a modern and nuanced understanding of the need to balance collective rights (e.g. linguistic, denominational, or Aboriginal rights) and individual rights, or even collective and individual aspects of specific rights themselves.

Given the Court’s consistent preference for such balancing between collective and individual rights, I think the Court will view the situation raised in Dickson as one calling for a proper balance to be struck, case-by-case, between the Charter rights of individuals like Ms Dickson and collective Indigenous rights of self-government.



Q: Section 25 refers to “other rights and freedoms that pertain to the Aboriginal peoples of Canada.” What might be included in this category?



A: Excellent question! VGFN argues that this case provides a prime example: its adoption of the residency requirement as an expression of its inherent Indigenous right of self-government, which is recognized in the self-government agreement with Canada and Yukon (and in federal and territorial implementation legislation), even though it is not formally recognized in treaty or by judicial declaration.

As already noted, the self-government agreement reached between VGFN, Canada, and Yukon explicitly states that it is not a section 35 agreement and so not a treaty within the meaning of that section. VGFN also has never obtained a judicial declaration that they have an Aboriginal right to adopt the residency requirement (or the VGFN Constitution more generally) as an aspect of self-government. But, even if adoption of the residency requirement is thus not an exercise either of a treaty right or of an Aboriginal right in this sense, section 25 specifically refers to “aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada” (emphasis added). VGFN argues that these words must have been included in section 25 for some purpose, and must therefore cover rights and freedoms that are not (or not yet established as) Aboriginal or treaty rights.

VGFN argues that this category of “other rights or freedoms” surely includes their inherent power of self-government to adopt the residency requirement, a power recognized by Canada and Yukon in the self-government agreement with VGFN and in federal and territorial implementing legislation. To my mind, VGFN’s argument on this point is very persuasive.



Q: In your opinion, what should be the guiding constitutional principles and considerations that inform the discussion around the application of the Charter to Indigenous governments exercising inherent self-government rights?



A: I think the courts (as well as federal, provincial, and territorial governments) should be extremely cautious about imposing solutions on Indigenous governments and communities as to the proper interaction between the Charter and Indigenous self-government. Note, for instance, that the VGFN Constitution states that disputes arising under it may be brought to the Yukon Supreme Court so long as the Vuntut Gwitchin’s own Court has not been established. The VGFN Constitution thus contemplates the establishment of a VGFN Court, although that has not yet occurred.

The SCC should be careful not to issue a judgment that unnecessarily pre-determines whether or how any future Vuntut Gwitchin Court would be expected to apply the Charter to VGFN laws and government conduct. Even if the superior courts exercise some supervisory jurisdiction over such Indigenous courts, this should be done with great deference, allowing Indigenous peoples to develop their own distinctive approaches to legal issues arising under their own laws and governments. At the same time, I do not think the SCC should (or will) entirely rule out the supervisory jurisdiction of superior courts — it could well be appropriate at times for individuals like Ms Dickson to continue to have access to superior courts to argue that they have been denied their rights in some fundamental way. While black-and-white answers to many of these questions might initially be satisfying (to those on the winning side of an argument), I think it wiser for the SCC to establish that courts need to be deferential towards Indigenous governments and courts working out their own solutions, but not rule out the possibility that individuals might in some circumstances properly have recourse to provincial and territorial superior courts. The principles and considerations governing such circumstances will have to be worked out as situations arise, not (one hopes) through judicial reflection in the abstract.



Q: Considering the issues at stake, do you believe it is appropriate for the Supreme Court of Canada to be the ultimate arbiter on whether the Charter applies to self-governing First Nations? Could you discuss why multilateral negotiations might or might not be a better approach?



A: The lower courts in this case reasonably pointed out that extensive multilateral negotiations have already taken place and led to historic self-government and land claims agreements between VGFN, Canada, and Yukon. It is not surprising that legal disputes then arise in the implementation of those agreements and the subsequent adoption of the VGFN Constitution. The VGFN Constitution itself provides that disputes arising under it may be brought to the Yukon Supreme Court and, of course, the Yukon Supreme Court is subject to appellate review by the Yukon Court of Appeal and, ultimately, the SCC. So, in the circumstances of this case, yes, I do believe it is appropriate for the SCC to decide the appeal that has been brought before it.

More generally, the SCC will inevitably have some role to play in determining whether and how appeal can be made to the Charter in the context of Indigenous laws and self-government. As Ms Dickson argues in the present case, while she is a citizen of VGFN, she is also a Canadian citizen and she can ask the courts, including the SCC, for an interpretation of her Charter rights. That said, it remains crucial that the courts show appropriate deference to the choices made by Indigenous governments and other decision-makers. There is no easy formula for how the courts should do that; it’s principally a matter of adopting an orientation of adequate respect and deference that will shape the legal doctrine developed case-by-case. It’s important also to keep in mind that the disputes that arise will often not oppose state power to Indigenous rights in any simple way. Dickson is at its heart a challenge by a VGFN citizen, appealing to her Charter rights, to a law adopted in the VGFN Constitution.



Q: If the Charter is found or presumed to apply, what consequences might that have for the future of Indigenous self-government and self-determination in Canada?



A: A lot depends on how the Charter is found to apply. For instance, the lower courts in this case found that the Charter applies whether the courts give effect to the residency requirement understood solely as an exercise of inherent Indigenous self-government or whether they give it effect through (or partially on account of) the federal and territorial legislation designed to implement the self-government agreement with VGFN. The reasoning of the lower courts is much stronger on the latter alternative than the former. One possibility is that the SCC will decide that the Charter applies in this case based on the specific terms of the self-government agreement and implementing legislation and that it does not need to decide whether the Charter would necessarily apply to the residency requirement viewed simply as an exercise of Indigenous self-government.

If the SCC takes this tack, that arguably leaves Indigenous peoples (and Canada, the provinces, and the territories) greater discretion to negotiate the exact manner in which the Charter will apply to Indigenous laws and governments. Again, it’s doubtful that the courts would uphold any agreement that flatly denied the application of the Charter to Indigenous laws and governments, something that Canada, the provinces, and territories seem unlikely to agree to in the first place anyway. But that still leaves many questions about the Charter’s application unanswered. For instance, how is the Charter to be applied in Indigenous courts like the Vuntut Gwitchin Court contemplated in the VGFN Constitution? How would the decisions of Indigenous courts on Charter issues be reviewed, if at all, by superior courts? On matters such as these, the SCC’s decision in Dickson could leave narrower or wider room for negotiation, depending on how exactly it determines that the Charter applies.

That wider discretion could have pros and cons. It could add a further layer of complexity to negotiations that are already typically long and costly. It could lead to a patchwork of approaches across the country. But it could also allow for a variety of approaches to be tried, with Indigenous peoples pursuing paths they consider most appropriate for their own communities and practices of self-government. This might prove empowering for Indigenous peoples rebuilding their own forms of self-government, allowing them to shape the application of the Charter within their own communities in accordance with their own traditions, legal principles, and norms.


Interpretive Prism or Shield? A Primer on Section 25 of the Charter

The Dickson v Vuntut Gwitchin case (“Dickson”),[1] which is now before the Supreme Court of Canada, provides us with an opportunity to reconsider the role of section 25 of the Charter — an oft-neglected provision that deals with the interplay between Indigenous peoples’ rights and other sections of the Charter. Section 25 states that:

The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including: a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and b) any rights or freedoms that now exist by way of land claim agreements or may be so acquired.[2]

Broadly speaking, Dickson concerns the relationship that this provision establishes between the self-government rights of First Nations and the Charter rights of their members. In short, the case originated when Cindy Dickson, a member of the Vuntut Gwitchin First Nation (“VGFN”), was prevented from taking up a VGFN Council seat because of a residency requirement in the VGFN Constitution that she was unable to comply with. While the Yukon Court of Appeal held that this residency requirement infringed section 15 of the Charter (the equality rights section) it concluded that section 25 effectively shields the requirement from challenge, since allowing the challenge would limit the self-government rights of the VGFN.

In anticipation of the Supreme Court’s consideration of this case, this article offers a brief primer on section 25. While there has been a relative dearth of litigation on section 25, the Supreme Court (and one Justice in particular) has dropped a number of breadcrumbs that provide some sense, at least, of its meaning and scope. This article aims to follow those breadcrumbs.

What’s the Purpose of Section 25?

There are basically two competing interpretations of the purpose of section 25.

The first interpretation is that section 25 serves as an interpretative prism. According to this view, section 25 requires that other sections of the Charter should, if possible, be understood in such a way as to avoid a negative impact on Aboriginal rights. However, if such an interpretation is not possible, section 25 will not save the impugned law or government action, even if invalidating or discontinuing that law/action will have a detrimental impact on Aboriginal rights.[3]

The second interpretation, by contrast, is that section 25 acts as a shield. According to this view, if Aboriginal rights would be limited by a Charter claim, section 25 would be engaged and would bar that Charter claim.[4] This is the approach that the Yukon Court of Appeal adopted in Dickson: Ms Dickson’s equality rights claim could not proceed because of the detrimental impact that this would have on the collective, self-government rights of her First Nation. This interpretation of section 25 was also the one favoured by the concurring opinion of Justice Bastarache in R v Kapp (“Kapp”), a landmark Supreme Court decision on constitutional equality rights.[5]

A Note on Kapp

Kapp is a seminal case on Aboriginal rights and section 15 (equality rights) of the Charter. In it, the Supreme Court held that a communal fishing license granted exclusively to several Indigenous groups did not constitute a violation of section 15 of the Charter, as had been claimed by a group of non-Indigenous commercial fishers. This was because section 15(2) explicitly allows governments to take measures to ameliorate the circumstances of disadvantaged groups, even if this means granting them preferential treatment over others.[6] While the majority of the Supreme Court held the government licensing scheme to be valid due to section 15(2),[7] one judge, Justice Bastarache, wrote a concurring opinion based on section 25 of the Charter, arguing that this provision shielded the government scheme from the Charter challenge.[8]

What Rights Are Covered?

Although they did not decide the case based on section 25, the majority in R v Kapp suggested in passing that only rights which are of “a constitutional character” are likely to fall within its scope.[9] In contrast, Justice Bastarache’s concurrence argues for a broader reading of section 25 which protects all Aboriginal rights that are unique to Aboriginal communities because of “their special status.”[10] Following from this more expansive reading, Justice Bastarache suggested that any “legislation that distinguishes between aboriginal and non-aboriginal people in order to protect interests associated with aboriginal culture, territory, sovereignty or the treaty process deserves to be shielded from Charter scrutiny.”[11] In Dickson, the Yukon Court of Appeal affirmed this approach.[12]

Following from this, another question which arises around section 25 is whether it can be invoked by Indigenous governments in response to Charter claims by their own members. While this question wasn’t at issue in Kapp, Justice Bastarache tentatively suggested that such usage would be contrary to the spirit of section 25, since it would partially remove Indigenous people from “the Charter protection scheme”[13] (rather than bolstering and protecting their rights).

On a related note, some scholars have wondered if the Charter actually applies to laws passed by self-governing Indigenous nations, since section 32 of the Charter limits its application to federal and provincial governments.[14] However, in Dickson, the Yukon Court of Appeal rejected this argument, holding that the Charter applies to Indigenous governments when they are, by their very nature, exercising governmental power (although after finding that the Charter applied to the VGFN, the Court of Appeal then held that section 25 effectively blocked Ms Dickson’s Charter claim).[15]

How (and When) Should Section 25 Be Applied?

Another complicated question relating to section 25 concerns the point at which it should be factored into legal analysis. While there are a number of ways of approaching this question, in Kapp, Justice Bastarache offered a potential roadmap for future courts by articulating a three-step approach. To quote Justice Bastarache:

“The first step requires an evaluation of the claim in order to establish the nature of the substantive Charter right and whether the claim is made out, prima facie. The second step requires an evaluation of the native right to establish whether it falls under s[ection] 25. The third step requires a determination of the existence of a true conflict between the Charter right and the native right.”[16]

The key point here is that, for Bastarache, section 25 should be applied before there has been a full analysis of whether the Charter has been violated.[17] Although this three-step process has not (yet) been affirmed by the Supreme Court, the Yukon Court of Appeal did use it in Dickson v Vuntut Gwitchin First Nation.[18] That said, it must be noted that the Yukon Court did not use, nor comment upon, Justice Bastarache’s suggestion that section 25 might apply differently in the case of a restriction placed on an Indigenous person by an Indigenous government (i.e. precisely the type of “internal restriction” that is at issue in the Dickson case).[19]

Conclusion: The Tension Between Individual and Collective Rights

The issue of balancing the rights of individuals against the collective rights of a political community or nation is a difficult one, especially when one considers the historical context of Crown-Indigenous relations in Canada. On the one hand, a key premise of the Charter regime in Canada is that all individuals will be protected against problematic exercises of governmental power. On the other hand, a key dimension of reconciliation between the Canadian state and Indigenous communities is the recognition of Indigenous peoples right to collectively manage their own affairs — even (and perhaps especially) when this means deviating from the Charter. The fact that the Supreme Court is soon going to be weighing in on this tension has the potential to provide much needed clarity on the relationship between Indigenous individuals, Indigenous governments, and the Canadian Constitution.


[1] The case is on appeal from the Yukon Court of Appeal. See Dickson v Vuntut Gwitchin First Nation, 2021 YKCA 5 [Dickson].

[2] Canadian Charter of Rights and Freedoms, s 25, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[3] R v Kapp, 2008 SCC 41 at para 79 [Kapp].

[4] Ibid at para 79.

[5] Ibid at para 81.

[6] Charter, supra note 2, s 15(2).

[7] Kapp, supra note 3 at para 61.

[8] Ibid at paras 76-77.

[9] Ibid at paras 63, 65.

[10] Ibid at para 103.

[11] Ibid at para 103.

[12] Dickson, supra note 1 at paras 145-146 [Dickson].

[13] Kapp, supra note 3 at para 99.

[14] Ibid at para 100.

[15] Dickson, supra note 1 at para 98. See also Eldridge v British Columbia (Attorney General), [1998] 2 SCR 624 at para 44.

[16] Ibid at para 111.

[17] On Justice Bastarache’s reasoning on this point, see Kapp, supra note 3 at para 109.

[18] See Dickson, supra note 1, e.g. at para 146.

[19] See Kapp, supra note 3 at para 99.

Aboriginal Title

The Court has described Aboriginal title as a right to occupy and possess land.[1] However, the Crown retains underlying title to the land[2] and Aboriginal title land can only be sold to the Crown.[3] According to the Royal Proclamation of 1763, these restrictions on title were created so that the Crown could act as a as an interlocutor between Indigenous groups and settlers and so that the Indigenous groups could not be exploited by settlers.[4]

The definition of Aboriginal title has evolved since its recognition. In the case of Calder v British Columbia (1973), the Supreme Court described the nature of Aboriginal title as being based on the historic occupation and possession of the land by Indigenous people.[5] After Aboriginal and treaty rights were enshrined in the Constitution, the Supreme Court further elaborated on the features of Aboriginal title in the case Delgamuukw v British Columbia (1997). Chief Justice Lamer, writing for the majority of the Justices, described Aboriginal title as having the following features:

In the Delgamuukw case (1997), the Supreme Court also articulated the test for establishing Aboriginal title. To prove that an Aboriginal group has a title claim to land, the group must show that occupation of that land was exclusive at the time of sovereignty (1867, when Canada became a country).[9] Exclusive occupation does not mean that land cannot have been shared. Indigenous groups can make joint claims if they occupied the land together and excluded all others. Or, if a group historically permitted another to share their resources, this could be evidence that the group considered itself to have the right to decide who could come on to the land.[10]

The first and only successful Aboriginal title claim was made by the Tsilhqot’in First Nation, a group of six semi-nomadic bands that claimed title over 4400 square kilometers of land to the south-west of Williams Lake in British Columbia (the area over which Aboriginal title was successfully made out is about 1,700 square kilometres). The Supreme Court clarified in this case in 2014 what factors need to be in place to establish title.

The Supreme Court decided that traveling and living in multiple locations at different points in the year could satisfy the “exclusive occupation” requirement for making an Aboriginal title claim. To found a claim, the Court ruled there must be an historical intention to occupy the land, communicated to other groups through action or law/custom,[11] combined with actual regular use.[12] The Court said that In determining whether occupation is sufficiently intense,  courts should take into account the uses to which the relevant land can be put, as well as the technological capacity and mode of life of the group historically.[13] In this case, the land was quite barren and could not have easily supported a larger population.

Aboriginal title is the most well-developed right recognized in section 35 as an Aboriginal right.

[1] Calder et al v Attorney-General of British Columbia, [1973] SCR 313, 34 DLR (3d) 145 ; Guerin v The Queen, [1984] 2 SCR 335 at 378, 382, 13 DLR (4th) 321 . See also St Catharine’s Milling and Lumber Co v R (1887), [1887] 13 SCR 577, [1888] 14 AC 46 (PC) .

[2] Guerinsupra note 1 at 379; see also St Catharine’ssupra note 1.

[3] Guerinsupra note 1 at 365.

[4] George R, Proclamation, 7 October 1763 (3 Geo III), reprinted in RSC 1985, App II, No I; Patrick J Monahan, Byron Shaw & Padraic Ryan, Constitutional Law, 5th ed (Toronto: Irwin Law Inc, 2017) at 475.

The Royal Proclamation is a document issued by King George III after the Seven Years War to proclaim ownership over the territory in North America. The Royal Proclamation also includes statements governing the relationship between settlers and Indigenous peoples.

[5] Caldersupra note 1 at 376; Guerin, supra note 1 at 399; R v Van der Peet, [1996] 2 SCR 507 at 538, 137 DLR (4th) 289 at 540, 577.

[6] Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 180, 153 DLR (4th) 193 . at para 115.

[7] Delgamuukwsupra note 6 at 124.

[8] Ibid at para 117.

[9] Ibid at para 142.

[10] Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 48, [2014] 2 SCR 257 .

[11] Ibid at para 38.

[12] Ibid at para 42.

[13] Ibid at para 33-44.

Section 35 Aboriginal and Treaty Rights

Section 35 of the Constitution Act, 1982 steers the relationship between the Crown and the “Aboriginal peoples of Canada”[1] in Canadian constitutional law. It is about “[A]boriginal people and their rights in relation to Canadian society as a whole,”[2] and about the “bridging of [A]boriginal and non-[A]boriginal cultures.”[3]

Section 35(1) reads:

The existing [A]boriginal and treaty rights of the [A]boriginal peoples of Canada are hereby recognized and affirmed.[4]

The Aboriginal and treaty rights protected by this provision fall into four distinct categories:

What is the Purpose of Section 35?

Section 35(1) has two purposes: “[T]o recognize the prior occupation of Canada by organized, autonomous societies and to reconcile their modern-day existence with the Crown’s assertion of sovereignty over them.”[9] These purposes reflect an underlying tension in Indigenous-Crown relations, a tension that stems from the recognition of two seemingly incompatible truths: (1) the Crown imposed its sovereignty and continues to assert its sovereignty over what is now Canada; and (2) the lands over which sovereignty was asserted were already occupied and remain occupied by Indigenous societies with their own laws, cultures, and traditions.[10]

In this context, the term “reconcile” has two meanings: (1) to make consistent these two seemingly incompatible legal realities; and (2) to acknowledge and address the historic impact of the imposition of Crown sovereignty while also looking “forward to reconciliation between the Crown and Aboriginal peoples in an ongoing, mutually respectful long-term relationship.”[11]

According to the Supreme Court of Canada, section 35 must be interpreted “purposively,” which means that the courts must take “a generous, liberal interpretation” [12] of the words in section 35 and “other statutory and constitutional provisions protecting the interests of [A]boriginal peoples.”[13] Further, any “doubt or ambiguity [in these provisions] must be resolved in favour of [A]boriginal peoples,”[14] and Indigenous legal traditions must inform our understanding of the provisions and the rights they protect. As the Supreme Court put it in Van der Peet, “a morally and politically defensible conception of [A]boriginal rights will incorporate both [European and Indigenous] legal perspectives.”[15]

Who Are the “Aboriginal Peoples of Canada?”

In the 2021 case of R v Desautel, the Supreme Court stated that the Aboriginal peoples of Canada “are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact.”[16] This includes the Indian, Inuit and Métis peoples,[17] (as per section 35(2) of the Constitution Act, 1982), and may include Indigenous groups that are neither citizens nor residents of Canada.[18]

What Does “Existing” Mean?

The word “existing” means that section 35 only applies to Aboriginal and treaty rights that were not extinguished when the Constitution Act, 1982 came into effect.[19] Before section 35 recognized and affirmed Aboriginal and treaty rights, those rights could have been “extinguished” by either: (1) “surrender to the Crown”[20]; or (2) “a clear and plain intention” by the Crown to extinguish that right[21] through legislation or treaty. However, mere regulation of an Aboriginal right is not sufficient to extinguish that right.[22] Now that section 35 provides constitutional protection to Aboriginal and treaty rights, the Crown may no longer unilaterally extinguish them.[23] But if a right was previously extinguished, neither section 35 nor any other provision of the Constitution Act, 1982 can revive it.[24]

Crucially, the word “existing” does not freeze Aboriginal rights as they existed at the time the Constitution Act, 1982 entered into force. Rather, it recognizes that these rights may evolve over time and so should be interpreted flexibly and “in a contemporary form.”[25]

What Does “Recognized and Affirmed” Mean?

Section 35 does not absolutely “guarantee” Aboriginal and treaty rights, but rather recognizes and affirms them. While section 35 affords constitutional protection to Aboriginal and treaty rights, the Crown may be justified in interfering with these rights.[26] However, justifying an infringement of an Aboriginal or treaty right is a high threshold to meet, since protecting section 35 rights “reflects an important underlying constitutional value.”[27] To determine if an infringement of a section 35 right is legally justifiable, the courts apply a test that was developed by the Supreme Court in R v Sparrow.

[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35(1).

[2] R v Van der Peet, 1996 CanLII 216 (SCC) at para 21 .

[3] Ibid at para 42.

[4] Constitution Act, 1982, supra note 1.

[5] Van der Peet, supra note 2 at paras 112-14.

[6] Ibid at paras 115 and 119-20. See also R v Adams, 1996 CanLII 169 (SCC) at paras 26 and 64-65. The Supreme Court of Canada made its first declaration of Aboriginal title in Tsilhqot-in Nation v British Columbia, 2014 SCC 44 (CanLII).

[7] Van der Peet, supra note 2 at para 67; and R v Powley, 2003 SCC 43 (CanLII) at para 17.

[8] Van der Peet, supra note 2 at para 120; and R v Badger, 1996 CanLII 236 (SCC) at para 41.

[9] R v Desautel, 2021 SCC 17 (CanLII) at para 22 .

[10] Ibid at paras 22 and 26. See also Ryan Beaton, “De Facto and De Jure Crown Sovereignty: Reconciliation and Legitimation at the Supreme Court of Canada” (2018) 27:1 Constitutional Forum 25, online: CanLIIDocs <>.

[11] See Desautel, supra note 9 at para 30 (citing Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 (CanLII) at para 10, internal quotations removed). See also Elizabeth England, “R v Desautel: Who are the ‘Aboriginal Peoples of Canada’?” (23 June 2021), online: Centre for Constitutional Studies <>.

[12] R v Sparrow, 1990 CanLII 104 (SCC) at 1106 . See also Van der Peet, supra note 2 at paras 23-24.

[13] Van der Peet, supra note 2 at para 24.

[14] Ibid at para 25. But cf R v Marshall, 1999 CanLII 665 (SCC) at para 14 (in the context of treaty interpretation, “[g]enerous rules of interpretation should not be confused with a vague sense of after-the-fact largesse”) .

[15] Van der Peet, supra note 2 at para 42. But see also para 49 (the Aboriginal perspective “must be framed in terms cognizable to the Canadain legal and constitutional structure”).

[16] Desautel, supra note 9 at para 31.

[17] Constitution Act, 1982, supra note 1 at s 35(2).

[18] See Desautel, supra note 9 at para 23.

[19] See Sparrow, supra note 12 at 1091. See also Peter W Hogg, “The Constitutional Basis of Aboriginal Rights” (2010) 15:1 Lex Electronica 179, online: CanLIIDocs <> at 185-86.

[20] Ibid.

[21] See Sparrow, supra note 12 at 1099. Regulation of an Aboriginal or treaty right is not sufficient to extinguish that right. For example, the passage of laws regulating hunting and fishing is not sufficient to extinguish the Aboriginal right to hunt and fish.

[22] Ibid at 1097.

[23] Mitchell v MNR, 2001 SCC 33 (CanLII) at para 11.

[24] See Sparrow, supra note 12 at 1091.

[25] Ibid at 1093. See also Van der Peet, supra note 2 at para 42.

[26] See Sparrow, supra note 12 at 1109.

[27] Reference re Secession of Quebec, 1998 CanLII 793 (SCC) at para 82.

Métis Rights

Section 35(2) of the Constitution Act, 1982 includes Métis people in its definition of the “[A]boriginal peoples of Canada.”[1] In 2003, the Supreme Court of Canada defined the “Métis” as “distinctive peoples who, in addition to their mixed [Aboriginal and European] ancestry, developed their own customs, way of life, and recognizable group identity.”[2]

However, the test for identifying Aboriginal rights under section 35 — the Van der Peet test — looks to practices, customs, or traditions that existed before European contact. The Métis would therefore fail to meet the Van der Peet test for an Aboriginal right because they only came into existence after European contact. For this reason, the Supreme Court of Canada in R v Powley modified the Van der Peet test to account for the unique nature of the Métis peoples.

The Powley Test for Métis Rights

Like the Van der Peet test for identifying Aboriginal rights, the test for Métis rights focuses “on identifying those practices, customs and traditions that are integral to the Métis community’s distinctive existence and relationship to the land.”[3] The test has eight steps:

Once a Métis right is established, the court must determine whether that right was infringed, and, if so, the Crown may attempt to justify the infringement according to the test set out in the Supreme Court’s Sparrow judgment.[15]

[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35(2).

[2] R v Powley, 2003 SCC 42 (CanLII) at para 10 .

[3] Ibid at para 37.

[4] Ibid at para 19 (citing R v Van der Peet, 1996 CanLII 216 (SCC) at para 53).

[5] Ibid at para 23.

[6] Ibid at paras 24 and 27.

[7] Ibid at para 29.

[8] Ibid at paras 31-33.

[9] Ibid at para 37.

[10] Ibid.

[11] Ibid at paras 41 and 44.

[12] Ibid at para 45.

[13] Ibid.

[14] Ibid at para 46.

[15] Ibid at para 10.

The Sparrow Test: Justifying Infringements of Aboriginal or Treaty Rights

Section 35 Aboriginal and treaty rights[1] are not part of the Charter of Rights and Freedoms, so they are “not subject to [section] 1 of the nor to legislative override under [section] 33.”[2] Section 1 of the Charter allows governments to justifiably limit a Charter right, and section 33 establishes the notwithstanding clause, which allows governments to pass laws “notwithstanding” their impact on certain Charter rights.

Although neither section 1 nor section 33 may be invoked to override or diminish Aboriginal or treaty rights, Aboriginal and treaty rights are not absolute. Under certain circumstances, the Crown may limit or infringe Aboriginal or treaty rights. In R v Sparrow, the Supreme Court of Canada established a two-step test — the Sparrow test — for justifying an infringement of an Aboriginal right.[3] The test is highly contextual,[4] which means that the standard of justification varies with the facts of each case.[5]

The Sparrow test comprises two steps:

  1. The complainant must establish that the impugned law “has the effect of interfering with an existing [A]boriginal right.”[6] Here, the courts ask a series of questions to understand the characteristics and scope of the right at stake, and in what manner the law might have infringed that right.[7] The courts seek to determine whether “the purpose or effect” of the impugned law ”unnecessarily infringes” the claimant’s ability to exercise their section 35 right.[8] If so, the court will find a prima facie infringement of that right and the Crown will bear the burden of justifying that infringement.[9]
  2. The Crown must then justify the infringement by showing that:
    1. The law has a valid objective. Here, the Court held that valid objectives are “compelling and substantial.”[10] For example, conservation and natural resource management, as well as public safety, are valid objectives. [11] However, the “public interest” is not sufficient because it is too vague and broad a concept to justify limiting a constitutional right.[12]
    2. The limit is justified in light of the principle of the honour of the Crown and the Crown’s fiduciary duty to Aboriginal peoples.[13] This analysis attracts questions like whether the infringement is necessary to achieve the Crown’s purpose,[14] whether the law is minimally impairing on the protected right, whether fair compensation was made available for an expropriation of land, or whether the Aboriginal group was consulted with respect to the regulatory measures.[15]

If a court finds that the infringement is justified, the law remains valid and applicable to that Aboriginal group. If not, the impugned law would be found to be contrary to section 35(1) of the Constitution Act, 1982 and of no force and effect as it relates to the Aboriginal group whose rights were infringed.

The courts have applied the Sparrow test to justify infringing Métis rights[16] and treaty rights,[17] and as the basis of the test for infringing Aboriginal title.[18] In R v Côté, the Supreme Court of Canada confirmed that the Sparrow test applies equally to federal and provincial laws.[19]

[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35(1).

[2] See R v Sparrow, 1990 CanLII 104 (SCC) at 1106 .

[3] Ibid.

[4] See eg R v Gladstone, 1996 CanLII 160 (SCC) at paras 57-68 .

[5] Sparrow, supra note 2 at 1110-11.

[6] Ibid at 1111 (emphasis added).

[7] Ibid at 1111-12.

[8] Ibid at 1112.

[9] Ibid at 1112-13. See also Gladstone, supra note 4 at para 43.

[10] Sparrow, supra note 2 at 1113.

[11] Ibid. See also Gladstone, supra note 4 at para 72. The Court clarifies that objectives which are “compelling and substantial” are “those directed at either the recognition of the prior occupation of North America by [A]boriginal peoples or … at the reconciliation of [A]boriginal prior occupation with the assertion of the sovereignty of the Crown” (para 72). The pursuit of economic and regional fairness may satisfy this standard under the right circumstances (para 75).

[12] Ibid.

[13] Ibid at 1114. See also Delgamuukw v British Columbia, 1997 CanLII 302 (SCC) at paras 161-164 . Courts must consider what form the Crown’s fiduciary duty takes, and what the Crown must do in its fiduciary capacity to justify infringing the protected right. The degree of scrutiny required must vary according to the nature of the Aboriginal right at issue and the form that the Crown’s fiduciary duty takes.

[14] Ibid at 1121.

[15] Ibid at 1119.

[16] R v Powley, 2003 SCC 43 at para 48.

[17] See R v Badger, 1996 CanLII 236 (SCC) at para 79.

[18] See Delgamuukw, supra note 13 at para 165.

[19] See R v Côté, 1996 CanLII 170 (SCC) at para 74.

Treaty Rights

The Concept of Treaty

Different legal orders — from the Canadian one to the many distinct Indigenous legal orders in Canada — give rise to different understandings of the concept of “treaty.”[1] This key term focuses on the way in which “treaty” is understood in Canadian constitutional law. The Supreme Court of Canada says that a treaty between the Crown and one or several Aboriginal peoples of Canada “represents an exchange of solemn promises.” [2] Treaty rights arise from these promises and are “recognized and affirmed” by section 35 of the Constitution Act, 1982.[3]

Rights that Arise from Treaty

Identifying treaty rights requires the courts to engage in treaty interpretation, with the goal of “choos[ing] from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed.”[4] This is not an easy task, because the treaty text is often not determinative. Sometimes promises were made orally,[5] or the historical context requires the recognition of an implied treaty right.[6] Further, due to “significant differences in the signatories’ languages, concepts, cultures and world views,” Crown and Aboriginal actors will often have had “fundamentally different understandings of the exact nature of their agreements.”[7] For these reasons, it is important for courts to look beyond treaty texts, to extra-textual information and context that can shed light on how different parties would have understood their rights and obligations under the treaty.[8]

To assist courts with navigating the difficult task of treaty interpretation, the Supreme Court of Canada in Marshall set out the following principles of treaty interpretation (quoted in full, with in text citations removed):

Based on these principles, the Supreme Court of Canada in Marshall set out a two-step approach to establishing a treaty right. First, the courts must examine the treaty text, which may reveal “ambiguities and misunderstandings [that] may have arisen from [the parties’] linguistic and cultural differences.”[10] The court must then consider the possible meanings of the text in light of the historical and cultural context.[11] Based on these two steps, the court determines which interpretation best reflects the parties’ common intention.

[1] See eg Harold Johnson, Two Families: Treaties and Government (Saskatoon: Purich Publishing, 2007) at 13, 90-92; and Heidi Kiiwetinepinesiik Stark, “Respect, Responsibility, and Renewal: The Foundations of Anishinaabe Treaty Making with the United States and Canada” (2010) 34:2 American Indian Culture and Research J 145 at 147-49.

[2] R v Badger, 1996 CanLII 236 (SCC) at para 41 .

[3] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35(1).

[4] R v Marshall, 1999 CanLII 665 (SCC) at para 78 (citing R v Sioui, 1990 CanLII 103 (SCC) at pp. 1068-69) .

[5] See Badger, supra note 2 at para 52.

[6] See Marshall, supra note 4 at para 44.

[7] Quebec (Attorney General) v Moses, 2010 SCC 17 (CanLII) at para 108.

[8] See Badger, supra note 2 at para 52.

[9] See Marshall, supra note 4 at para 78 (internal citations removed). See also James (Sákéj) Youngblood Henderson, “Interpreting Sui Generis Treaties” (1997) 36:1 Alta L Rev 46, online: <>; and Aaron James Mills (Waabishki Ma’iingan), Miinigowiziwin: All That Has Been Given for Living Well Together: One Vision of Anishinaabe Constitutionalism (PhD Dissertation, University of Victoria, 2019) [unpublished] at 23-24, 38-39, and 267, online: <>. Indigenous worldviews are often so different from Canadian legal traditions that to define them with certainty imposes an unreasonable risk of drawing improper inferences from misunderstood concepts or oversimplified generalizations.

[10] Marshall, supra note 4 at para 82.

[11] Ibid at para 83.

“Equitable Compensation” for a Breach of the Crown’s Fiduciary Duty Towards First Nations

The Crown has a fiduciary relationship with Indigenous Peoples. What remedy do Indigenous Peoples have when the Crown breaches its fiduciary duty? The Supreme Court of Canada recently addressed this question in Southwind v Canada, which involved a breach that occurred nearly 100 years ago.

In February 1928, the Governments of Canada, Ontario, and Manitoba entered into an agreement to dam Lac Seul in order to generate electricity for the growing city of Winnipeg.[1] The governments planned to raise the water level of Lac Seul by ten feet, which they knew would cause “very considerable” damage to the Lac Seul First Nation (LSFN), whose Reserve was — and still is — located on the southeastern shore of the lake.[2] When the dam was built, “[a]lmost one-fifth of [LSFN’s] best land was flooded and … [LSFN’s] members were deprived of their livelihood, robbed of their natural resources, and driven out of their homes.”[3] LSFN was not consulted on either the project itself,[4] or on the adequacy of the $50,000 compensation package that Canada and Ontario paid into the LSFN’s trust account in 1943.[5]

As a general rule, the Crown owes a fiduciary duty towards an Indigenous group when it “assumes discretionary control over a specific Aboriginal interest.”[6] The Crown breached its duty in the Lac Seul dam project.[7] In this case, the remedy for the breach was “equitable compensation,” which the trial judge calculated according to what the Crown would have owed the LSFN under the laws of expropriation in 1929, when the breach occurred.[8] Mr Southwind, who was acting on behalf of the members of the LSFN, disagreed with this calculation and argued that the trial judge failed to consider the doctrine of equitable compensation in light of the constitutional principles of the honour of the Crown and reconciliation.[9]

On July 16th, 2021, the Supreme Court ruled on Mr Southwind’s appeal. This article will examine the Supreme Court’s decision on the appropriate legal remedy for a breach of the Crown’s fiduciary duty towards Indigenous Peoples.

The Nature of the Crown’s Fiduciary Duty Towards Indigenous Peoples

There was no question in this case that the Crown had breached its fiduciary duty to the LSFN; the Crown conceded this.[10] However, “the specific nature of the Crown’s fiduciary duty … especially over reserve land, informs how equitable compensation must be assessed,”[11] and so the Court began with an overview of the duty itself.

The fiduciary relationship between the Crown and Indigenous Peoples is sui generis in nature,[12] which means that it is unique and distinct from other legal relationships normally found in the common law tradition. As the Court stated in Southwind, this sui generis relationship is rooted in two principles of Aboriginal Law: (1) the honour of the Crown; and (2) the goal of reconciliation.[13]

The honour of the Crown is a constitutional principle that underpins Aboriginal Law,[14] the branch of Canadian constitutional law that deals with the rights of the Indigenous Peoples of Canada[15] and their relationship with the Crown.[16] It imposes a duty upon the Crown to act honourably towards Indigenous Peoples and to take their interests into account when it makes decisions that may impact them.[17]

For the Court, the principle or goal of reconciliation has two aspects. On the one hand, it seeks to reconcile “Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship.”[18] On the other hand, it seeks to make consistent two seemingly inconsistent realities: prior occupation of the land we now call Canada by Indigenous Peoples and the Crown’s assertion of sovereignty over that land.[19]

The second aspect of this principle is especially pertinent to the Crown’s control over reserve lands because “the Indigenous interest in land did not flow from the Crown; it pre-existed the Crown’s assertion of sovereignty.”[20] Further, Indigenous Peoples’ unique relationships with their land, and especially reserve land, heightens the importance of their interest in reserve land and by extension, the fiduciary duty.[21] In Southwind, the Court concluded that the Crown’s fiduciary duty “imposes the following obligations on the Crown:”[22]

The Principles of Equitable Compensation for Breach of the Crown’s Fiduciary Duty

To quote the Court in Southwind:

When the Crown breaches its fiduciary duty, the remedy will seek to restore the plaintiff to the position the plaintiff would have been in had the Crown not breached its duty … [and w]hen it is possible to restore the plaintiff’s assets in specie, accounting for the profits and constructive trust are often appropriate.[26]

In specie” means that the actual assets would be returned — for example, in this case, the assets in specie would be the flooded land.

In cases where returning the actual assets is not possible, such as this one, equitable compensation is the appropriate remedy.[27] While both parties agreed on “[t]he basic principles of equitable compensation … [they] disagree[d] about their application to the Crown’s fiduciary duty in relation to land held for the benefit of Indigenous Peoples.” [28]

The doctrine of equitable compensation has two objectives: (1) to remedy the loss suffered by “restor[ing] the actual value of the thing lost through the fiduciary’s breach” (the “lost opportunity”),[29] and (2) to enforce the trust which forms the heart of the fiduciary relationship by deterring future wrongdoing.[30]

To be eligible for equitable compensation, the plaintiff must show that the fiduciary’s breach —in this case the Crown’s breach — caused their lost opportunity.[31] Here, the Court clarified that the test for causation is the low-threshold “but for” test: but for the fiduciary’s breach, would the plaintiff have suffered the loss?[32]

The Court further explained that a fiduciary cannot limit their liability by arguing that the loss suffered by the plaintiff was unforeseeable.[33] The doctrine of equitable compensation aims to “compensate … the plaintiff for the lost opportunity caused by the breach, regardless of whether that opportunity could have been foreseen at the time of the breach.”[34] Equitable compensation, the Court continued, will “[look] at what actually happened to values in later years,” even if it causes an “unexpected windfall” to the plaintiff.[35] This is because equitable compensation “look[s] to the policy behind compensation for breach of fiduciary duty and determine[s] what remedies will best further that policy.”[36] The dual purpose of remedying the loss suffered and deterring future wrongdoing therefore drive the calculation of equitable compensation, and foreseeability is not relevant. In the context of a fiduciary breach, equitable compensation “should not be limited by foreseeability, unless it is necessary to reach a just and fair result.”[37]

To inform its assessment in Southwind, the Court set out several presumptions and requirements that apply to equitable compensation:

How to Calculate Equitable Compensation for the Crown’s Breach of its Fiduciary Duty Towards Indigenous Peoples

The Court disagreed with the trial judge’s decision to calculate equitable compensation based on the amount required under the expropriation laws that existed at the time of the breach.[43] It was incorrect, the Court said, to presume that Canada would have failed to reach an agreement with the LSFN and would have proceeded directly to expropriation. In this regard, the trial judge erred by “focus[ing] on what Canada would likely have done instead of what Canada ought to have done as a fiduciary.”[44]

Following the first step in assessing equitable compensation the Court “determine[d] what the fiduciary would have been expected to do had it not breached its obligations.”[45] In this case, although Canada had the legal discretion to expropriate lands[46] or take up lands for public works,[47] this did not preclude it or excuse it from carrying out its fiduciary duties.[48] Rather, Canada was expected to represent the interests of the Indigenous Peoples to whom it was a fiduciary while at the same time considering the broader public interest.[49] Before resorting to expropriation laws, “Canada ought to have first attempted to negotiate a surrender” of the land in accordance with its fiduciary obligations.[50]

The Court then provided guidance on how to calculate the value of LSFN’s lost opportunity caused by this breach. In the Court’s view, this calculation must be based on what Canada ought to have done: namely, “to negotiate in order to obtain the best compensation based upon the value of the land to the Project.”[51] In Southwind, this meant considering the value of the land in light of its anticipated use for hydroelectricity generation.[52]

Finally, the Court confirmed that the calculation must consider whether the “award is sufficient to fulfill the deterrent function of equity.”[53] Deterring the Crown from breaching its fiduciary duty to Indigenous Peoples is “especially important,” the Court said, because it encourages the Crown to act honourably and with a view towards reconciliation.[54] The award should therefore be such that it acts as a meaningful deterrent and thereby reflects “the honour of the Crown and the goal of reconciliation.”[55]


The outcome of the Supreme Court’s judgment in Southwind is that the case goes back to the trial court, which must now reassess the equitable compensation award to the LSFN based on the Supreme Court’s guidance.[56] Above all, the Supreme Court’s decision reaffirms that the Crown’s fiduciary duty towards Indigenous Peoples is alive and well, especially as it relates to reserve lands. It confirms the Crown’s obligations that arise from its fiduciary duties in relation to reserve lands, and frames equitable compensation in a way that upholds the honour of the Crown and the objective of reconciliation. As the Court recently held in Desautel, “the honour of the Crown looks back” to the Crown’s assertion of sovereignty over Indigenous Peoples and “also looks forward to reconciliation between the Crown and Aboriginal peoples in an ongoing, mutually respectful long-term relationship.”[57]

[1] See Southwind v Canada, 2021 SCC 28 at para 1 . See also paras 17-20.

[2] Ibid at paras 2-3. See also paras 14-16.

[3] Ibid at para 2 (internal quotations removed). See also paras 27-28.

[4] Ibid at para 4. See also paras 20-26.

[5] Ibid at paras 29-30.

[6] Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 (CanLII) at para 73(1).

[7] See Southwind, supra note 1 at paras 37-42, 87-89 and 94.

[8] Ibid.

[9] Ibid at para 49.

[10] Ibid at para 54.

[11] Ibid.

[12] Ibid at para 60.

[13] Ibid at para 55.

[14] Ibid.

[15] See Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35.

[16] See Thomas McMorrow, “Upholding the Honour of the Crown” (2018) 35 Windsor YB Access to Justice 311 at 313.

[17] See Southwind, supra note 1 at para 55.

[18] Ibid.

[19] Ibid.

[20] Ibid at para 56 (emphasis in original).

[21] Ibid at para 62.

[22] Ibid at para 64.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid at para 68.

[27] Ibid.

[28] Ibid at para 65.

[29] Ibid at para 69. See also paras 67 (“Equitable compensation … is a loss-based remedy; the purpose is to make up the plaintiff’s loss”) and 68 (when it is not possible to restore the plaintiff’s assets in specie, “equitable compensation is the preferred remedy”).

[30] Ibid at paras 66, 71-72.

[31] Ibid at para 70.

[32] Ibid at para 75.

[33] Ibid at paras 66, 74 and 77.

[34] Ibid at 74.

[35] Ibid at 76.

[36] Ibid at para 73.

[37] Ibid at para 76 (citing Hodgkinson v Simms, 1994 2 SCR 377 at 443).

[38] Ibid at para 79.

[39] Ibid at para 80.

[40] Ibid.

[41] Ibid at para 81.

[42] Ibid at para 82.

[43] Ibid at para 89.

[44] Ibid. See also para 111.

[45] Ibid at para 93.

[46] Ibid at para 94.

[47] Ibid at para 96.

[48] Ibid at paras 94 and 96-97.

[49] Ibid at paras 101-03.

[50] Ibid at paras 112-14.

[51] Ibid at para 118. See also paras 121-22, 127 and 129.

[52] Ibid at para 127. While Justice Côté agreed with the majority that Canada ought to have negotiated a surrender, she did not agree that the lost opportunity includes an “opportunity to negotiate a surrender of those lands for hydroelectricity generation” (para 172, emphasis in original) because there was insufficient evidence to make that finding of fact. Justice Côté disagreed with the majority’s decision to reconsider evidence to reach its own conclusions because doing so overreaches the appellate standard of review for mixed fact and law, which is reasonableness, not correctness (see paras 170, 174-75, 181, 184 and 188).

[53] Ibid at para 144.

[54] Ibid.

[55] Ibid.

[56] Ibid at para 147.

[57] R v Desautel, 2021 SCC 17 at para 30.