Canada’s AG asks Winnipeg court to dismiss Dakota injunction

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This article was published 22/01/2025 (257 days ago), so information in it may no longer be current.

The Office of the Attorney General of Canada has asked a Winnipeg court to dismiss an injunction filed by two Dakota First Nations last year that sought to have a recently signed treaty between the Government of Canada and the Manitoba Métis Federation (MMF) declared invalid.

In a statement of defence issued through the federal Department of Justice and submitted to court on Jan. 13, the Attorney General of Canada demanded that the Dakota “put to proof all assertions contained in the Statement of Claim” made by the Dakota Tipi First Nation and the Canupawakpa Dakota Nation.

“Canada admits that, generally speaking, the relationship between Canada and the Indigenous peoples of Canada is a fiduciary relationship, and that, in certain circumstances, the relationship may give rise to or require the performance of specific fiduciary duties,” reads section eight of the statement of defence, “but Canada denies that — in the circumstances of this case — Canada owes or owed any fiduciary duties, constitutional or otherwise, to the Dakota Nations.

“In the alternative, if Canada did owe fiduciary duties to the Dakota Nations, which Canada denies, then Canada also denies having breached those duties.”

The original motion, which was filed on Dec. 2 by Trippier Law on behalf of the Dakota, states that the Attorney General of Canada, the Government of Manitoba and the Manitoba Métis Federation breached their constitutional duties in failing to consult with First Nations, and that they have “unjustifiably infringed” the Dakota’s rights to the land as a result of the signing of the Red River Métis Self Government Treaty.

The Self-Government Treaty between Canada and the MMF was signed on Nov. 30. According to a statement issued by a Crown-Indigenous Relations and Northern Affairs Canada spokesperson in December, the treaty does not include land or address harvesting or land-related rights. However, the Dakota say the government had a duty to consult with them and other First Nations before taking the step to enter into a treaty with the MMF.

“The federal government did not consult with the First Nations in terms of … we never had a chance to really review the treaty and what the implications are,” Dakota Tipi Chief Dennis Pashe told the Sun last December. “And the federal government refused to give us the resources to do that.”

The language of the injunction states that the Dakota are the “original inhabitants of the lands both south and north of the 49th parallel, within the Province of Manitoba, as well as land extending to cover large areas of present-day southern Manitoba, Eastern Saskatchewan, and Western Ontario.”

In response, the Attorney General’s statement of defence challenged the Dakota’s claim to that land and title, which is already the subject of treaties with Indigenous communities in the region — specifically Treaty 1 and Treaty 2.

“Canada states that the Dakota Nations have not provided evidence to meet the criteria for Aboriginal title, and the claim for Aboriginal title to the Land must fail,” the statement reads. The Attorney General further asserts that as of 1818, the Dakota Nations “did not have sufficient or exclusive occupation of the land,” did not have the “intention and capacity to retain exclusive control over the land,” and “have not held continuity of occupation or a contemporary and substantial connection with the land.”

The government further argues that there has been no breach of the Charter of Rights and Freedoms, no conspiracy to cause harm to the Dakota Nations, and no abrogation of the Dakota Nations’ rights within Canada.

“Canada denies any conduct, which could be construed as abrogation of the Dakota Nations’ rights or an intention to negotiate with a given Indigenous group, to the exclusion of the Dakota Nations,” read the statement of defence.

The Attorney General ended the statement by asking that the Dakota’s claim be dismissed, and that Canada “reserves the right to seek costs.”

Pashe could not be reached for comment before deadline on Tuesday. However, Canupawakpa Chief Raymond Brown on Tuesday dismissed the statement of defence issued by the Attorney General.

“That’s just their opinion,” Brown said. “That means that under Section 35 of (The Constitution Act), they should come make a treaty with the Dakota then. That’s the issue, one of avoidance. They can go make a treaty with everybody else, but they don’t want to make treaty with the Dakota.”

Last July, Crown-Indigenous Relations Minister Gary Anandasangaree delivered a formal statement of recognition and apology on behalf of the federal government to the nine Dakota and Lakota First Nations in Canada that were treated as refugees in Canada. That statement acknowledged that for over 150 years, the Dakota were denied recognition of their rights as Indigenous peoples.

Since that time, however, both Dakota Tipi and Canupawakpa have claimed that the federal government has been slow to come to the table to discuss their Aboriginal title and specific claims.

Following a recent trip to Ottawa to meet with federal representatives, Brown said he was told that Anandasangaree would get back to him regarding Canupawakpa claims before month’s end.

“They gave me a notice that my issues were on the table and under review and that they will get back to me sometime the end of this month,” he said.

Brown says the Dakota case will be back in court next month.

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