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Indigenous - Remedies (2). Salt River First Nation #195 v. Shanks
In Salt River First Nation #195 v. Shanks (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, this from a JR that set aside a Band Council Resolution that "precluded Mr. Shanks and other members of the First Nation from receiving the per capita distribution to be made to members at that time", which per capital distribution was "paid annually to members from funds held by the First Nation pursuant to a treaty settlement agreement".
The main issue considered on the JR (and this appeal) was whether the Resolution was of a sufficiently public nature to support being JR justiciable:[2] Mr. Shanks brought an application for judicial review challenging the validity of the Band Council Resolution. For reasons cited as Shanks v. Salt River First Nation #195, 2023 FC 690, the Federal Court allowed the application for judicial review and set aside the Band Council Resolution on the ground that it was unreasonable. In reaching this decision the Federal Court rejected the submission of the First Nation that the Court lacked jurisdiction to hear the application. Instead, the Federal Court concluded that when enacting the Band Council Resolution, the Council acted as a "“federal board, commission, or other tribunal”" and that the authority exercised by the Council was of a sufficiently public character to confer jurisdiction on the Federal Court.
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II. Applicable Legislation
[6] Subject to certain exceptions that have no application to this appeal, subsections 18(1) and (3) of the Federal Courts Act R.S.C., 1985, c. F-7 give exclusive, original jurisdiction to the Federal Court to entertain applications for judicial review of decisions of "“any federal board, commission or other tribunal”".
[7] Section 2 of the Federal Courts Act defines the phrase "“federal board, commission or other tribunal”" to mean any entity "“having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown”". Again, this definition is subject to a number of exceptions, none of which apply to this appeal.
III. The Standard of Review
[8] Whether the Federal Court had jurisdiction to judicially review the Band Council Resolution is a question of law, reviewable on the standard of correctness (Anisman v. Canada (Border Services Agency), 2010 FCA 52, at para. 26); (Housen v. Nikolaisen, 2002 SCC 33, at para. 8). This requires the Federal Court to correctly articulate and apply the test for determining whether an entity is acting as a federal board, commission or other tribunal (Innu Nation v. Pokue, 2014 FCA 271, at para 10).
[9] Before turning to the application of the standard of review, nothing in this case turns on any distinction between a board, commission or other tribunal. Therefore, for simplicity, the phrase "“federal board”" will be used in the balance of these reasons and should be read as including reference to a federal commission or other tribunal.
IV. Application of the Standard of Review
A. Applicable Legal Principles
[10] The leading authority with respect to the proper interpretation of the definition of federal board is the decision of this Court in Anisman. There, at paragraph 29, the Court concluded that "“a two-step enquiry”" must be made to determine whether an entity is a federal board. The first enquiry is directed to what jurisdiction or power is being exercised. The second enquiry is directed to the source or origin of the jurisdiction or power that is being exercised. The primary determinant is the source of the entity’s authority. The question is, when acting, was the tribunal empowered by or under federal legislation or by an order made pursuant to a prerogative power of the federal Crown? Neither the nature of the power exercised nor the nature of the body exercising the power are determinative of whether a tribunal falls within the definition.
[11] Subsequent to the decision of this Court in Anisman, the Supreme Court clarified in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018]1 S.C.R. 750, at paragraph 14, that judicial review is only available "“where there is an exercise of state authority and where that exercise is of a sufficiently public character”". The Supreme Court went on to state that "“a decision will be considered to be public where it involves questions about the rule of law and the limits of an administrative decision-maker’s exercise of power. Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term”" (para. 20).
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[21] The jurisprudence of this Court and the Federal Court is to the effect that Band Councils established under the Indian Act are federal boards whose decisions are subject to judicial review when they exercise their powers over band members under a federal statute such as the Indian Act and when the issue involves a matter that is "“public”" in nature: Sebastian v. Saugeen First Nation No. 29 (Council of), 2003 FCA 28, at paragraph 51; Ermineskin First Nation v. Minde, 2008 FCA 52, at para. 33; Horseman v. Horse Lake First Nation, 2013 FCA 159, at para. 6; Buffalocalf v. Nekaneet First Nation, 2024 FCA 127, at para. 19.
E. Was the power exercised of a sufficiently public character so as to make judicial review available?
[25] At paragraphs 33 to 35 of its reasons, the Federal Court considered and rejected the submission of the First Nation that the exercise of power at issue was not public in nature and so was not amenable to judicial review.
[26] The First Nation argues that the Federal Court erred by not conducting a full analysis of the nature of the power exercised in accordance with the factors set out by this Court in Air Canada v. Toronto Port Authority, 2011 FCA 347 at paragraph 60. The First Nation argues that instead the Court over emphasized Council’s status as the government of the First Nation.
[27] This submission requires this Court to consider the nature of the holding in the Air Canada case. In decisions such as Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court restated the principle that relationships that are essentially private in nature are to be redressed by way of the private law not public law. In Air Canada, this Court then directed itself to the question of how to determine where a particular matter falls on the public-private spectrum. At paragraph 60, the Court observed that in determining the public-private issue, all of the circumstances are to be weighed. The Court then went on to enumerate a number of factors relevant to the determination of whether a matter is sufficiently public to bring it within the purview of judicial review. The Court’s listing did not purport to be exhaustive, and the Court noted that whether one factor or a combination of factors operate to tip the balance to make a matter public in nature depends upon the facts of the case.
[28] In the present case, the Federal Court did not cite Air Canada; nor did the Court explicitly review the factors enumerated in Air Canada. This said, the Court did review a number of factors to reach its conclusion that Council was not acting privately when it exercised the power at issue. Particularly, the Court considered that the decision was made following a meeting duly convened within the meaning of subsection 2(3) of the Indian Act, that the decision concerned a payment made pursuant to the terms of the Revenue Account Law, and that the decision to authorize per capita distribution payments was inherently a governance issue relating to the management and disposition of funds from a settlement which was established for the benefit of the First Nation. These facts fall within the scope of factors articulated in Air Canada, particularly: the nature of the decision-maker and its responsibilities, the extent to which the decision is founded and shaped by law as opposed to private discretion, and the character of the matter for which review is sought.
[29] While it would have been preferable for the Court to have specifically referenced the factors articulated by this Court in Air Canada, and while the parties and this Court would have been assisted by an express consideration of those factors, I am not persuaded that the Court committed any reviewable error when it concluded that the impugned Band Council Resolution was of a sufficiently public character to properly attract judicial review.
[30] Applying the factors articulated in Air Canada that are of particular relevance to this case:The character of the Band Council Resolution was not a private, commercial matter. The decision involved the distribution of public funds and flowed from the Revenue Account Law adopted by members of the First Nation and incorporated into the Election Regulations. The fact that compensation was paid to the First Nation as "“personal property”" did not make the Band Council Resolution private in nature.
The decision-maker was the governance body recognized by the Indian Act and the Band Council Resolution was registered with the appropriate Minister.
The decision was not founded in private discretion but rather in the terms of the Treaty Settlement Agreement, the Settlement Trust Agreement, the Revenue Account Law and the Election Regulations. Judicial Review is a suitable public law remedy to challenge the lawfulness of the Band Council Resolution.
[31] It follows that when making per capita payments pursuant to the Revenue Account Law and enacting the Band Council Resolution, Council was not acting in a private capacity. Therefore, the Resolution is subject to judicial review. . Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town)
In Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town) (Ont CA, 2024) the Ontario Court of Appeal considered an indigenous claim seeking damages and a declaration that "excluded coastline (the “Disputed Beach”) forms part of the Reserve, that no third parties have any interest in the Disputed Beach, and that the honour of the Crown and its fiduciary duties were breached by the wrongful demarcation of the Reserve boundaries".
Here the court broadly considers remedies, here in this indigenous context:[217] Remedies are necessarily prospective and purposive. A court cannot go back in time and change history to stop past injustices from having occurred. Rather, what a court can do is craft remedies that try, as best as possible in the circumstances, to undo the effects of past wrongs and prevent their perpetuation into the future.
[218] As Jamal J. explained in Restoule (SCC), at para. 277, quoting from Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 45, and from academic commentary by Kent Roach and by Peter Hogg and Laura Dougan (citations omitted):As with other constitutional rights, courts should take a purposive approach to determining the appropriate remedy for breaches of treaty obligations. As always, “[t]he controlling question ... is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake”. Restoring the honour of the Crown “requires the courts to be creative” within a principled legal framework and provide remedies that “forward the goal of reconciliation”. . Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
Here the court considers 'unique' indigenous remedies for the case before it:[10] .... Applying this standard of review, along with the treaty interpretation principles articulated by this Court, the Crown has a duty to consider, from time to time, whether it can increase the annuities without incurring loss. If the Crown can increase the annuities without incurring loss, it must exercise its discretion and decide whether to increase the annuities and, if so, by how much. This discretion is not unfettered; it is to be exercised liberally, justly, and in accordance with the honour of the Crown. The frequency with which the Crown must consider whether it can increase the annuities must also be consistent with the honour of the Crown. Although the Augmentation Clause is not in itself a promise to pay the Anishinaabe a certain sum of money, no party doubts that the Crown was able to increase the annuities beyond $4 per person without incurring loss, and that it should have exercised its discretion to do so. Thus, in my view, the Crown must increase the annuity under the Robinson Treaties beyond $4 per person retrospectively, from 1875 to the present. It would be patently dishonourable not to do so. I further conclude, as both courts below did, that the plaintiffs’ breach of treaty claims are not statute-barred by Ontario’s limitations legislation. Finally, although no specific fiduciary duties apply in respect of the Augmentation Clause, the honour of the Crown requires the Crown to diligently fulfill this promise. The Crown’s ongoing breach of its augmentation promise, in the circumstances, is also a breach of the treaties themselves.
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F. The Remedy for the Crown’s Failure To Diligently Implement the Augmentation Promise
(1) Introduction
[265] The remedy owed by the Crown for its breach of the Robinson Treaties, and the potential for that remedy to advance reconciliation, are pivotal issues in these appeals.
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[271] In my view, a declaration clarifying the rights and obligations of the parties is an appropriate remedy in this case, as it will inform both the future implementation of the Robinson Treaties and clarify the nature of the past breach. At the same time, given the longstanding and egregious nature of the Crown’s breach of the Augmentation Clause for almost a century and a half, a declaration, while helpful, would be insufficient to renew the treaty relationship and restore the Crown’s honour. The Crown must provide redress for the conceded breach of its duty. In doing so, the Crown should take into account various factors including, but not limited to, the nature and severity of the breaches, the number of Anishinaabe and their needs, the benefits the Crown has received from the ceded territories and its expenses over time, the wider needs of other Indigenous populations and the non-Indigenous populations of Ontario and Canada, and the principles and requirements flowing from the honour of the Crown, including its duty to diligently implement its sacred promise under the treaty to share in the wealth of the land if it proved profitable. However, it is appropriate for that redress to be negotiated by the treaty partners, in a manner that is consistent with the goal of reconciliation.
[272] As I will elaborate, I would therefore provide further direction requiring the Crown to engage in honourable and time-bound negotiation with the Superior plaintiffs concerning compensation for past breaches of the Augmentation Clause. If the parties are unable to arrive at a negotiated settlement, then the Crown must, within six months of the release of these reasons, exercise its discretion under the Augmentation Clause and set an amount to compensate the Superior plaintiffs for past breaches. The amount, and the process through which it is arrived at, will be subject to review by the courts.
(2) The Full Range of Remedies Is Available
[273] The Crown’s breach of the augmentation promise is both a breach of the duty of diligent fulfillment and a breach of the treaty itself. In principle, the full range of remedies — declaratory and coercive — is available.
[274] It is a well-established principle of Canadian law that “[w]here there are legal rights there are remedies” (Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 102). Indeed, “a right has practical value only to the extent that it is vindicated by an adequate remedy” (J. Cassels and E. Adjin-Tettey, Remedies: The Law of Damages (3rd ed. 2014), at p. 1). Likewise, Aboriginal and treaty rights protected under s. 35(1) of the Constitution Act, 1982 will “not be meaningful without effective remedies” (K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at § 15:2).
[275] To respect their constitutional status, uphold the honour of the Crown, and advance reconciliation, Aboriginal and treaty rights can be no less enforceable than other constitutional rights (Sparrow, at pp. 1106-7; see also Van der Peet, at paras. 20-21). As the guardians of the Constitution and guarantors of constitutionally entrenched rights, courts are responsible for ensuring that Aboriginal and treaty rights are protected by adequate, effective, and meaningful remedies (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 155; Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, at p. 753).
[276] Where the Crown has breached its treaty obligations or the duties arising from the honour of the Crown, the full range of remedies, including damages and other coercive relief, is available to remedy that breach (Roach, at § 15:2). In the duty to consult context, for example, this Court has recognized that a breach of the duty “can lead to a number of remedies ranging from injunctive relief against the threatening activity altogether, to damages, to an order to carry out the consultation prior to proceeding further with the proposed government conduct” (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at para. 37, citing Haida Nation, at paras. 13-14).
[277] As with other constitutional rights, courts should take a purposive approach to determining the appropriate remedy for breaches of treaty obligations (Roach, at § 15:2). As always, “[t]he controlling question . . . is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake” (Haida Nation, at para. 45). Restoring the honour of the Crown “requires the courts to be creative” within a principled legal framework and provide remedies that “forward the goal of reconciliation” (Hogg and Dougan, at p. 292; see also Roach, at §§ 15:1-15:2). . Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
Here the court consider 'declarations' as an appropriate indigenous remedy:[280] All parties agree that this Court can issue declaratory relief in this case. First, there is no question as to this Court’s jurisdiction over the issues in these appeals. Second, the dispute between the parties is real and not theoretical: the parties disagree about many live issues, including the correct interpretation of the Augmentation Clause, the duties it imposes on the Crown, and the remedy for the Crown’s breach of these duties. Third, although the Crown has acted dishonourably in neglecting its duties under the Augmentation Clause for close to 150 years, the long history of this litigation and the recent $10 billion settlement between the Crown and the Huron plaintiffs regarding past breaches suggest that all parties have a genuine interest in resolving the issues. Fourth, although before this Court Ontario now accepts that the appropriate remedy is a declaration stating that the Crown is required to exercise its discretion as to whether to augment the annuities, it has opposed declaratory relief of the kind sought by the plaintiffs for most of this litigation. Until recently, Ontario maintained that it had not breached the Augmentation Clause because it possessed unfettered discretion as to whether to increase the annuities beyond $4. In this sense, it has opposed a declaration recognizing its breach of the Augmentation Clause from day one. However, as this Court explained in Shot Both Sides v. Canada, 2024 SCC 12, at para. 81, the Crown’s belated concession of a breach of a treaty right should not foreclose the possibility of declaratory relief. To hold otherwise would “privilege form over substance with respect to the nature of the ‘real’ dispute before us, and would overlook the protracted nature of the dispute that led the parties to this point” (para. 81).
[281] In my view, there is considerable value in this Court providing a declaration that clarifies the Crown’s obligations regarding the Augmentation Clause and recognizes that the Crown has breached those obligations. Such a declaration will be a definitive statement of rights that the treaty partners can rely on in negotiations to determine how the Augmentation Clause must be honourably implemented regarding both the past and the future (see Manitoba Metis, at para. 137). In this regard, I agree with the following observations of Justice Rowe, writing extra-judicially with Diane Shnier:Declarations allow courts to state generally what is necessary to comply with constitutionally guaranteed treaty rights, and allow the government flexibility in how to achieve that compliance. Further, declarations about a discrete issue or aspect of an agreement may facilitate negotiation outside the litigation process, which can be particularly important in the context of treaties with Aboriginal peoples.
(“The Limits of the Declaratory Judgment” (2022), 67 McGill L.J. 295, at p. 318) [282] As this Court has noted, declaratory relief “is not meant to represent the end of the reconciliation process” for the Crown’s breach of a treaty; it “merely helps set the stage for further efforts at restoring the nation-to-nation relationship and the honour of the Crown” (Shot Both Sides, at para. 74).
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