In Brokenhead First Nation v. Canada (Attorney General), the Federal Court of Appeal, in no uncertain terms, allowed the Crown’s appeal against the respondent, Brokenhead First Nation. The appeal concerned a decision finding that the government of Canada had breached its duty to consult the respondents when it transferred former army barracks land/treaty land situated in Winnipeg, Manitoba, to Canada Lands Company, a non-agent Crown corporation.
HELD: Appeal allowed. The judge’s reasons were inadequate in that they did not allow for meaningful appellate review. The judge failed to seize the substance of the critical issues before him and failed to deal adequately with the evidence before him. The reasons were unclear as to which respondent was owed the duty of consultation. While it was possible to infer from the judge’s reasons that he meant that Canada owed a duty only to Brokenhead and Peguis, it was equally possible to read his reasons as signifying that Canada owed a duty to all of the respondents. This lack of clarity violated the rule that the terms of an order must be clear and specific and prevented this Court from performing its appellate review function. The judge also failed to adequately distinguish between the different circumstances of the respondents and the agreements they signed. The judge also erred in failing to seriously consider Canada’s alternative argument that its duty to consult had been fulfilled.
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