Makivik Corp v Canada (Minister of Canadian Heritage), 1998 CanLII 9086 (FC)

This case was heard in the Federal Court, Trial Division, and it followed the motion in Nunavik Inuit v. Canada (Heritage), 1997 CanLII 17720 (FC)/Nunavik Inuit v. Canada (Minister of Canadian Heritage), 1997 CanLII 5195 (FC).

The circumstances of this case were as follows. The parties—the Minister of Canadian Heritage and the Attorney General of Canada as respondents, and the Nunavik Inuit as represented by Makivik Corporation as applicants—had been in the process of treaty negotiation regarding a plan by the Federal government to create a national park on land in northern Labrador to which the Nunavik Inuit asserted rights. Problems arose concerning a feasibility study that had been conducted to determine the viability of establishing a national park on the land in question, as the government had not allowed the Makivik Corporation to participate in the study. The specific issue that the Makivik Corporation raised before the Court was whether the government, “having undertaken to engage in a treaty process in the current constitutional and policy context prevailing in Canada, thereby incur[ed] legally enforceable positive duties towards their partners in the treaty process and legally enforceable constraints on their conduct with respect to the issues and interests which are the object of the treaty negotiations.” In other words, the question was whether the government's conduct fell outside the bounds of its duty to negotiate and the fiduciary duty that it owed to the applicants.

The Court ultimately concluded that the government had a duty to negotiate (which included a “duty to inform and to listen”) which had not been met. The Court held that the duty to negotiate is always present in such circumstances. The scope and nature of the duty is determined by the circumstances, but, even at the minimum standard, there is always a duty on the part of government to act in good faith when negotiating with Indigenous groups. The Court also held that such negotiations should include all Indigenous groups with stakes in the territories or rights being claimed. For these reasons, the Court concluded that the government must consult with the Indigenous applicants before establishing the park. 

View the Decision on CanLII: https://www.canlii.org/en/ca/fct/doc/1998/1998canlii9086/1998canlii9086.html

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