In 2024, the Supreme Court of Canada (“SCC” or the “Court”) released five significant decisions in the area of Aboriginal and Constitutional law:

• Reference re An Act respecting First Nations, Inuit and Métis children, youth and families - 2024 SCC 5;
• Dickson v. Vuntut Gwitchin First Nation - 2024 SCC 10;
• Shot Both Sides v. Canada - 2024 SCC 12;
• Ontario (Attorney General) v. Restoule - 2024 SCC 27; and
• Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2024 SCC 39

In reviewing the five cases together, one can see some themes emerging. First, the Court has added new caselaw to the growing body of jurisprudence and commentary on the application and scope of the principle of the Honour of the Crown. This principle plays an important role in the concept of “legislative reconciliation” discussed in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, the issuance of declaratory relief despite a claim being statute barred in Shot Both Sides, the scope of the duty of diligent implementation and the contents of the declaration in Restoule, and the interpretation of a contract between the Crown and a First Nation in Pekuakamiulnuatsh Takuhikan.

Second, the Court seems to be grappling with the idea of an Indigenous right to self-government arising from section 35 of the Constitution Act, 1982. While the Court has not yet made any pronouncements regarding the existence of such a right, the question of whether it exists was clearly on the Court’s mind in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, Dickson, and Pekuakamiulnuatsh Takuhikan.

Lastly, these five cases emphasize the SCC’s continuing commitment to holding the Crown accountable to its obligations to Indigenous groups, communities and peoples found in treaties, the Constitution, and contracts.

For a full overview of this analysis by Nikita B. Rathwell, you can download her case analysis booklet.

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Related article(s)

1) Legislative Reconciliation”: Case Comment on Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5

2) A New Framework for Section 25 of the Charter: A Case Comment on Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10

3) The Application of Limitation Periods to Historical Aboriginal Law Claims: A Case Comment on Shot Both Sides v. Canada, 2024 SCC 12

4) A “Return to the Council Fire”: Case Comment on Ontario (Attorney General) v. Restoule, 2024 SCC 27

5) The Application of the Honour of the Crown to Contractual Interpretation: Case Comment on Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2024 SCC 39

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About the Authors:

Nikita B. Rathwell is a partner in the McKercher LLP Saskatoon office with a practice focused on aboriginal law. Nikita assists First Nations clients with a variety of litigation matters in Federal Court, including election appeals, applications for judicial review of Band Council decisions, and rights-based claims. She also assists clients with governance and corporate matters, including reviewing existing laws and drafting new laws, and providing advice to First Nations’ economic development corporations and businesses on corporate structure, governance, and contract negotiation.

About McKercher LLP:

For nearly 100 years, McKercher LLP has grown deep roots across Saskatchewan, serving the community from offices in Saskatoon and Regina. Now, as one of the province’s largest and most established full-service law firms, we proudly carry on this legacy – following a client-first philosophy as we provide legal services and real solutions for the people who rely on us.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have.