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BC Supreme Court Confirms no Freestanding Government Duty to Negotiate

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Aboriginal Law Bulletin

In Sam v. British Columbia, 2014 BCSC 1783, the British Columbia Supreme Court confirmed that the federal and provincial governments (the Crown) are not required to negotiate to settle treaty and other claims of First Nations. This confirms the law has not changed as a result of the Supreme Court of Canada’s landmark ruling in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (view our bulletin on that decision).

In Sam, the Songhees Nation applied for an order directing Canada and British Columbia to negotiate to resolve a claim for damages arising from an alleged breach of an Aboriginal treaty that was made in 1850. Canada and British Columbia denied they had a “duty to negotiate”. The first of two phases of trial is expected to require at least 80 days of trial time.

The Songhees Nation alleged that a duty for the Crown to negotiate in Aboriginal cases arose from Tsilhqot’in, and also submitted that within the Crown’s duty to negotiate was a duty for the Crown to make a reasonable offer of settlement. The Songhees Nation argued that Tsilhqot’in had overruled prior decisions and established a principle that in Aboriginal cases there is a duty, as part of the honour of the Crown, to negotiate a resolution to First Nation claims.

Mr. Justice Bracken rejected the argument of the Songhees Nation and held that notwithstanding the magnitude of the costs associated with the litigation, which presented a significant economic burden for the Songhees Nation, Tsilhqot’in did not create a new principle of general application compelling the Crown to negotiate in all Aboriginal litigation. Rather, Tsilhqot’in commented that the honour of the Crown required the Crown to consult and accommodate those claims in a manner proportionate to the strength of the case supporting the existence of the right or title claimed.

The decision in Sam v British Columbia, 2014 BCSC 1783 is available online.

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