First Nation Bands Claim to Protect its Treaty Rights Project 2022

1
FIRST NATION BAND’S CLAIM TO PROTECT ITS TREATY RIGHTS
Student’s name
Subject
Date

2
Introduction
The Joseph Bighead First Nation Band brings a claim for the protection of its treaty rights
following a proposal to construct a road through its territory. This Indian Band lives in a reserve
land within the Grasslands National Park (GNP). Their ancestors were signatories to Treaty No.
8 of 1899 signed at Little Pine Plains and the Band has lived in the reserve for over 8000 years.
GNP was created in 1922 as a refuge for the endangered wood bison in Northern Canada. Joseph
Bighead carries out subsistence hunting, fishing and trapping within the GNP and the resource
harvesting is governed by specific game regulations.
The defendant, the High and Straight Road Society, or simply High and Straight, has
proposed the road project. High and Straight is a non-governmental organization operating in the
Northwest Territories (NWT) and the Province of Alberta. The Minister of Canadian Heritage
(the Minister), the second respondent, authorized High and Straight on May 26th, 2000 to
construct a winter road through the Grasslands National Park. The proposed winter road
measures 118 kilometers long and connecting the Peace Pipe and the Winding River
communities in the GNP.
Thesis
Generally, all Indigenous people in Canada have the right to access ancestral lands and
resources. First Nations have signed treaties with the Crown and enjoy certain privileges that are
not enjoyed by non-treaty nations.1 The Crown has a fiduciary and constitutional duty to
adequately consult with First Nations in Canada with regards to occupation and resource
exploration in the reserves. The consultation must cover the scope, nature, and extent of the
1. "Rights of Indigenous Peoples in Canada," The Canadian Encyclopedia, accessed
April 16, 2020, https://www.thecanadianencyclopedia.ca/en/article/aboriginal-rights.

3
impact that any proposed activity may have on the exercise of First Nation’s treaty rights. This
paper supports the argument of Joseph Bighead by explaining how the proposed winter road
would affect the livelihoods of Joseph Bighead members and the environment at the GNP. The
paper also sets out how the Crown would respond to this argument.
In support of Joseph Bighead
The Crown’s Fiduciary Obligation toward Aboriginal Peoples
The Minister’s approval of the proposed road without adequate consultation with Joseph
Bighead is a breach of the Crown's fiduciary duty and constitutes an unjustifiable infringement
of Joseph Bighead's constitutionally protected treaty rights. The Supreme Court of Canada has
affirmed in many cases that the Crown’s fiduciary obligation covers its management of reserve
lands and resources as well as its legislator authority over lands and resources on aboriginal
rights.2 Therefore, the Crown's responsibility and accountability towards the First Nations is a
legally enforceable obligation.
The Supreme Court first affirmed the Crown’s legally enforceable fiduciary duty towards
the First Nations in the Guerin ruling. In Guerin, the Musqueam Band gave up reserve lands to
the Crown to be leased to a golf club.3 The Crown obtained lease terms that were less favorable
than the ones agreed on during the surrender. The Supreme Court determined that the Musqueam
people were owed a fiduciary obligation concerning the leased lands. The court argued that the
aboriginal title’s sui generis nature together with the historic responsibilities that the Crown
assumed towards the aboriginal peoples formed the basis of the fiduciary obligation.
2. Michael Asch,
On Being Here to Stay: Treaties and Aboriginal Rights in Canada (Toronto:
University of Toronto Press, 2014), 26.
3. `Rights of Indigenous Peoples.’

4
The Court confirmed the relationship between the fiduciary obligation and the exercise of
the Crown authority as well as discretion that conforms with the equitable principles requiring
any action of a fiduciary to be in the best interest of the beneficiary and to demonstrate utmost
loyalty to its principle. The Supreme Court reasoned that the Crown could not overlook the terms
directed by the Musqueam to be embodied in the lease. The Musqueam’s instructions to the
Crown regarding the terms of the lease they preferred would determine the field of discretion
that the Crown was allowed to act. Section 35 of the Constitution Act, 1982 now entrenches the
fiduciary duty of the Crown’s legislative capacity and places upon the Crown the burden to
justify any infringement on the rights of the aboriginal people.
Duty to Consult.
The Crown must obtain the consent of the First Nation and meet all legal requirements
for the justification of the infringement of Indigenous rights.4 After Joseph Bighead sent a letter
to the Minister of Canadian Heritage in 2001 objecting to the proposed road, Parks Canada and
High and Straight met and came up with an alternative route and Prairie subsequently did an
inspection and assessment. Joseph Bighead was never consulted in any of these. This was a
breach of the duty to consult and Joseph Bighead is right to seek legal redress.
Two Supreme Court cases in 2014 have explored the duty to consult.5 The cases,
Tsilhqot’in and Grassy Narrows explored the subject of the levels of government entitled or
required to consult. Grassy Narrows, heard in Ontario, brought about the idea that treaty lands
4. Asch, On Being, 38.
5. `Rights of Indigenous Peoples.’