Aboriginal Law

The Federal Court’s jurisdiction in Aboriginal law includes the following:

  • claims against the federal Crown, such as claims regarding Aboriginal title, Aboriginal rights and treaty rights, and claims for damages against the Crown;
  • judicial review of conduct  and decisions of federal bodies and tribunals that affect First Nations, Métis and Inuit*;
  • judicial review of First Nations decision-making bodies, in particular elections tribunals.

* Some federal matters, as set out in the Federal Courts Act, are subject to review in the Federal Court of Appeal rather than the Federal Court. Notably, judicial reviews of the National Energy Board and the Specific Claims Tribunal are brought directly to the Federal Court of Appeal.

The following are examples of cases brought in the area of Aboriginal law before the Federal Court:

  • Judicial review of a decision of a federal department on the grounds that it failed in its duty to consult with an Aboriginal group;
  • Action against the federal Crown for breach of fiduciary duty in making certain treaties;
  • Judicial review of a decision of the Non-Insured Health Benefits Program to deny benefits to a First Nations person;
  • Judicial review of a Canadian Human Rights Tribunal decision regarding provision of funding and services for First Nations;
  • Action for a declaration that Métis and non-status Indians are “Indians” within the meaning of “Indians and lands reserved for Indians” in s. 91(24) of the Constitution Act, 1867;
  • Class action for damages resulting from the “Sixties Scoop”;
  • Judicial review related to a governance dispute in a First Nation;
  • Application for a declaration that a First Nation’s election law breaches the Canadian Charter of Rights and Freedoms.

Relevant Statutes and Court Practices

Canadian Human Rights Act, RCS 1985, c. H-6

Federal Courts Act, RSC 1985, c. F-7

First Nations Elections Act, SC 2014, c. 5

First Nations Financial Transparency Act, SC 2013, c. 7

First Nations Fiscal Management Act, SC 2005, c. 9   

First Nations Goods and Services Tax Act, SC 2003, c 15, s. 67

First Nations Land Management Act, SC 1999, c. 24

Indian Act, RSC 1985, .c I-5

Aboriginal Law Practice Guidelines April-2016 (En).pdf 

Speeches

Alternative Dispute Resolution for First Nations - Judicial Review Issues - Meeting with the Liaison Committee of the Montreal Bar, Justice Leonard Mandamin - January 15, 2013.

 

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