Conseil des Atikamekw d’Opitciwan c Weizineau, 2018 QCCS 4170

Wiyasiwewin Mikiwahp Native Law Centre

Judicial authorization granted to banish a defendant from the Opitciwan First Nation in accordance with a Band Council by-law.

The Opitciwan First Nation is an Aboriginal people of Canada who benefit from the rights arising from s. 35 of the Constitution Act, 1982, including the right to self-government. Under this principle of self-government and in accordance with the power conferred by s. 81 of the Indian Act, the Band Council adopted a by-law “respecting the expulsion of persons found guilty of trafficking certain drugs and other substances”, that allows the Band to banish any person found guilty of such offences by a court from their reserve for a period of sixty months. This by-law came into effect on January 1, 2017.

The defendant was found guilty of trafficking narcotics on March 22, 2017, by the Court of Quebec. On August 1, 2017, the Band Council adopted a resolution in accordance with the above by-law to expel her from the community until March 22, 2022. Despite the various attempts to apply the by-law and resulting resolution, the plaintiff ignored these requests by hiding in private homes in the Opitciwan community. Consequently, the Band Council has failed to expel her.

The Court ordered the defendant to leave the borders of the Opitciwan Indian Reserve and to remain outside these borders until such time as sanctioned by the Band Council. Any peace officer or bailiff is authorized to assist the plaintiff in the execution of this judgment, the whole at the plaintiff’s mere verbal request and regardless of the premises in which the defendant is to be found, such that they may be entered and the defendant escorted to the border of the Opitciwan Indian Reserve. As well, the Court acknowledges the plaintiff’s undertaking to execute the expulsion measures in such a way that the defendant will not be left alone or without support at the borders of the Opitciwan Indian Reserve.

Law Society of British Columbia v Coutlee, 2018 LSBC 33

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

A law society hearing panel agreed to adjourn a hearing and recommend that it be reconstituted with an Indigenous member on the basis that its lack of Indigenous representation raised an apprehension of institutional bias.

A Hearing Panel of the Law Society of British Columbia (the Panel) granted an application to adjourn the hearing of a disciplinary citation against the Respondent, that concerned a failure to abide by practice restrictions. The decision to adjourn the hearing was in reaction to the second of two applications made by the Respondent at the outset of the hearing of the citation. The Respondent’s first application was dismissed. It asked that the citation be withdrawn or stayed as being baseless and in breach of natural justice and procedural fairness. The Respondent’s second application was for a determination that the Hearing Panel should include a person who is either an Indigenous lawyer or Elder. The Respondent did not assert any actual bias in the members of the Panel. Yet he argued that he would be more confident in the decision of the Panel, if reconstituted as requested, as being non-discriminatory and having weighed the evidence fairly. Counsel for the Law Society took no position on this application except to oppose any decision by the Panel that would result in an adjournment of the hearing of the citation.

The Respondent referred to the analysis of the Supreme Court of Canada’s decision in R v Kokopenace as a basis for his right to be treated differently, at least to the extent of ensuring that he is “tried” or heard by a panel that includes an Elder. The Respondent argued that this give him more confidence that the Panel was not biased against him as an Indigenous person. Counsel for the Law Society distinguished Kokopenace as dealing with an accused’s right to a fair trial under Section 11 of the Charter of Rights and Freedoms, submitting that this does not apply to the proceedings before a Law Society hearing panel because they do not attract true penalty consequences.

In reaching its decision, the Panel did not rely on Kokopenace, but they were guided by challenges identified in the Truth and Reconciliation Commission’s Final Report. The Panel also concluded that specifically addressing cultural competencies on the Panel is warranted in this case.

The Panel granted the Respondent’s application by adjourning the hearing and making a recommendation to the President’s Designate that the Panel be reconstituted to include an Indigenous person. The Panel found that a failure to reconstitute the Panel with an Indigenous member would be inconsistent with the values and objectives of the Law Society that are made evident in its commitment to its Truth and Reconciliation Advisory Committee Report.

Yahey v British Columbia, 2018 BCSC 278

Wiyasiwewin Mikiwahp Native Law Centre
Case Watch

First Nation granted stay of hearing fees for treaty litigation, until question of whether these are contrary to the Honour of the Crown can be resolved.

In the case of Yahey, the Blueberry River First Nation (BRFN) brought an application to stay hearing fees on the basis that there are unsettled legal issues surrounding the provincial hearing fee scheme. Procedurally, relief from fees can be sought either by way of a court order or an application based on undue hardship under Rule 20-5 of British Columbia’s Supreme Court Civil Rules. By way of background, this application came on the heels of an amendment to Rule 20-5 to allow for an undue hardship exemption from hearing fees. Justice Burke concluded that the stay ought to be provided.

BRFN’s position was that there are open questions as to whether it is dishonourable for the Crown to require First Nations to pay a fee to litigate their treaty rights. In addition, BRFN pointed out that conclusions from other ongoing constitutional litigation regarding the breadth of the term “undue hardship” (Cambie Surgeries Corp. v British Columbia) would bring greater clarity to its application for relief from fees. In determining whether or not a stay could be provided, Justice Burke applied the legal test set out in the case of RJR-MacDonald Inc. v Canada (Attorney General). This test requires a court to consider whether (a) there is a serious question to be tried; (b) irreparable harm will result if the stay is not granted; and (c) the balance of convenience favours granting the stay.

Justice Burke found that the application of this test favoured providing BRFN with the stay they sought. Justice Burke concluded that BRFN established there was a serious issue to be tried—that is, whether the Honour of the Crown demands Indigenous peoples to not pay a fee in order to have their constitutional rights adjudicated. This question was not addressed in Cambie Surgeries and remains unaddressed to date. Justice Burke went on to find that the irreparability of harm and balance of convenience in this case weighed in favour of providing the stay. She found BRFN would have to either allocate resources to pay the hearing fees, or bring an application for relief from paying the fees, or bring an application for relief on unsettled law. Further, she noted that if Cambie Surgeries could provide some guidance, then requiring the payment of fees would be an inefficient use of resources. Finally, Justice Burke raised a question of fairness of process. Citing RJR MacDonald, she indicated that a perception of unfairness might arise from the fact that losses associated with paying the fees prematurely might not be cured later. These factors meant that the balance of convenience weighed in favour of BRFN.

Corporation de développement économique Montagnaise c Robertson, 2017 QCCS 2736

A clear and unequivocal express waiver is necessary in order to waive the protection against seizure of property on reserve under section 89 of the Indian Act.

The issue in this case was whether the property of Mr. Édouard Robertson, who lives on the Mashteuiatsh territory reserve and has status under the Indian Act, could be seized by an Indigenous economic development corporation (Corporation de développement économique Montagnaise or “CDEM”) in spite of section 89 of the Indian Act. In three separate judgments, Mr. Robertson was found to owe CDEM more than $265,000 with interest and costs. He argued that because he has status under the Indian Act, his property cannot be seized by any person other than an Indian or band under the Indian Act. CDEM’s position was that by consenting to a universal movable hypothec on his business property (a form of security similar to a mortgage), Mr. Robertson waived the benefit of his rights under section 89 of the Indian Act.

Justice Bouchard found that the hypothec did not constitute a waiver of Mr. Robertson’s right to protection against seizure under section 89 of the Indian Act. As a result, the property located on the reserve could not be subject to seizure. In reviewing the case law to date, Justice Bouchard, cited a 1995 Sioui decision for the proposition that “tacit” waivers will not suffice in terms of section 89’s protection against seizure. Justice Bouchard did point out that express waivers were possible and section 89 should not be read more broadly than is necessary, particular in cases involving credit matters, as set out by the Supreme Court of Canada in McDiarmid Lumber Ltd v God’s Lake First Nation. Ultimately, however, Justice Bouchard concluded that in the absence of a clear and unequivocal waiver by Mr. Robertson, there could be no seizure. The language in the universal hypothec was not sufficiently clear to constitute a clear waiver and Mr. Robertson’s property could therefore not be seized.

Alberta (Child, Youth and Family Enhancement Act, Director) v JR, 2018 ABPC 258

United Nations Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commission Calls to Action, and Gladue principles inapplicable to child protection matter.

JR and AL are the parents of seven children ranging in age from nine months to nine years. Both parents have been diagnosed with cognitive and intellectual disabilities. Throughout their time spent together and apart, JR and AL suffered from multiple addictions, which aggravated domestic violence issues between them. All seven children have spent considerable time in state care due to the domestic violence and addictions suffered by their parents. The youngest children even tested positive for methamphetamines post-birth. The oldest children display severe behavioural issues and are likely to struggle in future years, thereby needing a stable and safe environment.

The applicant, Kasohkowew Child Wellness Society (KCWS), exists pursuant to a tripartite agreement between the Province of Alberta, the Government of Canada and the Samson Cree Nation. KCWS brought an application under the Child Youth and Family Enhancement Act RSA 2000 c C-12 (CYFEA), for a permanent guardianship order for all seven children and this was ultimately granted by the Court. Counsel for AL opposed the application, making submissions in favour of less invasive action based on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Truth and Reconciliation Commission (TRC) Calls to Action, and the principles set out in R v Gladue, [1999] 1 SCR 688.

With respect to UNDRIP, counsel for AL pointed to Article 7.2, which states “Indigenous individuals have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence including forcibly removing children of the group to another group (emphasis added)”. In response, the Court pointed out that KCWS is a delegated First Nations authority established under a tripartite agreement to provide child, youth and family services to Samson Cree Nation. The Court found it difficult to assume that such an authority would be at all involved in discriminating against its own people. Instead, the Court assumed that the director would only remove children and place them with non-Aboriginal foster parents as a last resort, and that the director found it in the best interests of the children to do so. The Court held that UNDRIP is aspirational and does not trump the best interests or physical and mental safety of the child.

Counsel for AL quotes several TRC Calls to Action that relate to reducing the number of Aboriginal children in care. She pointed out that some of the child welfare workers directly involved with the family were not Cree or even Aboriginal. However, the TRC Calls to Action she quoted only calls for child welfare workers to be properly educated and trained in the history and subsequent impacts of the residential school system, and about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing. The TRC did not say that all child welfare workers must be Aboriginal.

As for the potential applicability of R v Gladue, submissions of this type are usually in the context of criminal law cases, not child protection matters. The Court noted that the purpose of the CYFEA is not to punish parents, but to protect children and achieve what is in their best interests. In this case that would be stable, permanent and nurturing relationships and continuity of care for all seven children. As far as the negative impacts regarding the transmission of Cree culture, steps had been taken to keep the children together as much as possible. It was necessary to have the two youngest children placed in a group home, but the older five children are all together in one foster home. In terms of the preservation of the uniqueness of the children’s Aboriginal culture, heritage, spirituality and traditions, the Court was convinced that all appropriate steps were taken by KCWS to ensure these needs are met for the children.

WSÁNEĆ School Board v BC Government and Service Employees’ Union, 2017 FCA 210

The Doré framework is applicable when an administrative tribunal’s decision making engages the underlying principles and values of section 35 of the Constitution Act, 1982, and such decisions are to be reviewed on the same standard of reasonableness.

This case involved an application for judicial review by the WSÁNEĆ School Board (the WSB) seeking to set aside a decision of the Canada Industrial Relations Board (CIRB). Specifically, the WSB challenged a decision of the CIRB to dismiss an application from the WSB in which it sought to exclude employees teaching WSÁNEĆ language, beliefs, and culture in the SENĆOŦEN Immersion Program from the all-employee bargaining unit of the BC Government and Service Employees’ Union (BCGSEU).

The WSB argued that including the SENĆOŦEN employees in an all-employee bargaining unit would negatively impact the constitutional rights of the WSÁNEĆ First Nations to control the transmission of their language and culture, as entrenched in ss 25 and 35 of the Constitution Act, 1982. The WSB submitted that the Canada Labour Code must be interpreted and applied in a manner that respects these constitutional rights and takes into account the values and principles that underpin them, including the need for reconciliation. The WSB also asserted that the CIRB had breached its procedural fairness rights by failing to grant it an oral hearing. The WSB had unsuccessfully sought an oral hearing before the CIRB on the basis that this would allow for an explanation of the WSÁNEĆ beliefs and teachings in accordance with their oral traditions.

The Federal Court of Appeal held that the CIRB’s decision to dismiss the application was reasonable and that the CIRB was not obligated to provide an oral hearing.

Writing for the court, Gleason JA accepted that correctness is the appropriate standard for determining whether an oral hearing is required as part of procedural fairness though he also stated that the circumstances in which a party’s procedural fairness rights may be said to be violated are narrow. With respect to the merits of the CIRB decision, Gleason JA noted that reasonableness was generally the applicable standard to CIRB decisions that interpret and apply the Canada Labour Code and held that WSB’s invocation of ss 25 and 35 of the Constitution Act, 1982 did not require him to reach a different conclusion here.

The WSB did not seek to have the CIRB rule on the scope of its Aboriginal rights to control education nor did it argue that such rights brought the labour relations of the SENĆOŦEN employees outside the purview of the Code. Instead, WSB invoked principles and values enshrined in ss 25 and 35 of the Constitution Act 1982, and argued that these required the CIRB to determine that the SENĆOŦEN employees should be excluded from BCSGEU. Gleason JA found this argument to be analogous to the those advanced in Doré v Barreau du Quebec, 2012 SCC 12, [2012] 1 SCR with respect to the need for an administrative tribunal to balance Charter values against other administrative law considerations. He accepted that the Doré framework could be applied to principles and values underlying s 35 of the Constitution Act, 1982.

Gleason JA invoked the principle that employee units should not be fractured without compelling evidence. As indicated by the CIRB, compelling evidence might include geographic factors, specific statutory provisions and the likelihood that a larger unit may not be viable. Ultimately, Gleason JA found that there was no evidence the WSB would lose their control over the way the SENĆOŦEN employers performed their duties. He also pointed out that the application may have been premature as there was no way to know whether the BCGSEU would accept terms and conditions that the WSB sought for the SENĆOŦEN employees and the WSB raised concerns about an eventual strike that were premature and theoretical in the absence of any evidence that a strike was likely.

With respect to procedural fairness, Gleason JA noted that the request for an oral history was neither clearly made nor well supported by the evidence. Moreover, he pointed out that it was well within the Court’s powers under the Canada Industrial Relations Board Regulations to decide the matter without an oral hearing, which the WSB knew prior to making their application.

Beaver v Hill, 2018 ONCA 816

A claimant should not be barred from seeking leave of the court to pursue a s. 35 claim because his claim engages collective Aboriginal rights or incidentally engages questions of self-government.

In Beaver, Lauwers J.A. reversed the motion judge’s ruling, which dismissed Mr. Hill’s claim under s. 35 of the Constitution Act,1982. In his claim, Mr. Hill sought to challenge the applicability of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and Family Law Act, R.S.O. 1990 c. F.3, on the basis that he had a right to resolve support obligations under the Indigenous family dispute laws of the Haudenosaunee. The motion judge barred Mr. Hill from pursuing his claim on grounds of standing and justiciability. Regarding standing, the lower court pointed to the uncertainty in the law regarding an individual’s ability to personally pursue Aboriginal rights. Regarding justiciability, the motions judge cited Delgamuuk for the proposition that courts cannot adjudicate on claims involving broadly framed rights of self-governance.

In reversing this ruling, Lauwers J.A. pointed to various governing principles established in the case law. Among these was the principle that the basic purpose of s. 35 articulated in Van der PeetDelgamuukw and Haida Nation, is to pursue reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown. Secondly, citing Behn, Lauwers J.A. emphasizes that in matters engaging Aboriginal treaty claims, a full hearing that is fair to all stakeholders is essential. Thirdly, he restates Binnie J’s caution in Lax Kw’alaams Indian Band that judges should avoid making definitive pronouncements regarding s. 35 at these early stages in the jurisprudence. He further adds that the reconciliation of individual and collective aspects of Aboriginal and treaty rights is an unresolved issue. Citing Behn, Lauwers J.A. notes that the Supreme Court “resisted the invitation of intervenors to classify or categorize [A]boriginal or treaty rights into those that are exclusively collective, those that are predominantly individual and those that are mixed.”

Applying these principles, Lauwers J.A. concludes that Mr. Hill’s claims are not exclusively claims to self-government. Instead, he seeks a right to have his support obligation determined by the Indigenous family system, which isn’t itself a claim to self-government. Moreover, while Mr. Hill’s claim may affect other Haudenosaunee people, this is simply the nature of constitutional litigation. Mr. Hill does not make claims for the Haudenosaunee peoples as a group. Lauwers J.A. continues to clarify that while this decision would enable separate spheres of jurisdiction (i.e. the provincial family law system and the Indigenous family law system) this is in keeping with the vision of s.35 as a tool for reconciliation.

Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40

By Daniel Quainoo and Benjamin Ralston

The honour of the Crown is engaged in the development of legislation but not the Crown’s duty to consult

In Mikisew Cree the Supreme Court of Canada considered the question of whether the Crown’s duty to consult and accommodate Aboriginal peoples extends to the legislative process. Mikisew Cree First Nation sought a declaration acknowledging the role of ministers in developing policy for the formulation of legislation as “Crown conduct” that triggers the Crown’s duty to consult and accommodate. The Court also addressed whether s.18 of the Federal Courts Act provides the Federal Court with jurisdiction to review matters engaging the law-making process and whether enabling courts to review legislative processes would be in keeping with Canada’s constitutional order. While the Court was unanimous in deciding that the Federal Court lacked the jurisdiction to consider the question under s.18 of the Federal Courts Act, it was divided as to whether an executive actor could be said to have a duty to consult while participating in the legislative process and why.

In the result, a 7-2 majority of the Supreme Court of Canada ruled that the Crown’s duty to consult and accommodate Aboriginal peoples does not apply to any stage in the legislative process. At the same time, a 5-4 majority of the Supreme Court of Canada concluded that the constitutional principle of the honour of the Crown applies to legislative processes even if these justices disagreed over whether the duty to consult was the appropriate means to uphold the principle in this context.

Karakatsanis J, writing the judgment for herself, Wagner CJ and Gascon J, held that the duty to consult cannot apply to the law-making process as this would contradict the constitutional principles of the separation of powers, parliamentary sovereignty and parliamentary privilege. She added that as a matter of pragmatism, imposing a duty to consult on the policy development stage of the legislative process could limit the possibility of meaningful accommodation since a proposed bill can be freely amended once introduced into Parliament. It would also lead to incongruous treatment of private member bills that do not involve any comparable Crown conduct to trigger the duty. Karakatsanis J concluded that the duty to consult doctrine is ill-suited to be applied directly to the law-making process.

At the same time, Karakatsanis J held that the constitutional principle of the honour of the Crown applies to the law-making process and that it would undermine the endeavour of reconciliation to allow the Crown to use legislation to circumvent its duty to consult and accommodate Aboriginal peoples. She pointed out the Ross River decision of the Yukon Court of Appeal where it was stated that legislation will be unconstitutional to the extent that it prevents meaningful consultation and accommodation from occurring. Karakatsanis J left open the possibility of other remedies for breaches of the honour of the Crown in the legislative context and suggested that the extent of any consultation may be a relevant consideration to other forms of recourse.

Brown J affirmed the conclusion that the constitutional principles of the separation of powers and parliamentary privilege prevent the judiciary from applying the duty to consult to the law-making process. He also opined that Crown conduct necessarily excludes parliamentary functions of the state and thus these functions cannot be subject to a duty to consult. Finally, he indicated that by leaving open the possibility that there may be other doctrines developed to enable review of the legislative process, even in the absence of a successful claim that Aboriginal or treaty rights have been unjustifiably infringed, the judgment written by Karakatsanis J undermines the conclusion that constitutional powers prevent judicial review of the legislative process. He stated that this position leaves the law in a state of considerable uncertainty and invites Aboriginal peoples to return to the courts to identify what “other form of recourse” might be available as an alternative to the duty to consult in the legislative context.

Writing for himself along with Moldaver and Cote JJ, Rowe J affirmed the arguments articulated by Brown J, and elaborated on three further points. First, he indicated that Aboriginal claimants continue to have remedies pursuant to the SparrowHaida and Rio Tinto decisions once legislation is enacted. Second, he outlined how the recognition of the duty to consult in the legislative process could be disruptive to the legislative process and pointed to numerous questions that are raised by imposing a duty of consultation on legislatures. Finally, he argued that providing the Mikisew Cree with the declaration they sought would demand that courts become interventionist in a manner that is not in keeping with the principle of separation of powers.

Abella and Martin JJ articulated a different vision for the judicial review of the legislative process. Writing for both Martin J and herself, Abella J held that any consideration of the duty to consult must begin with the Honour of the Crown and the overriding goal of reconciliation. In that light, she stated that the Court must reconcile the need to protect the legislative process from judicial interference with the need to protect Aboriginal rights within the legislative process. Abella J acknowledged that recognizing the honour of the Crown and duty to consult in this context may impact the legislative process, but held that the need for adjustments could not justify the erasure of constitutionally mandated rights. She noted that section 35 was recognized as a constitutional limit on the exercise of parliamentary sovereignty in the Sparrow decision and objected to parliamentary sovereignty now being used as a shield to prevent a claim for consultation. Abella J’s reasons highlight the essential role that the honour of the Crown and the duty to consult play in reconciling Aboriginal and Crown sovereignty. Abella and Martin JJ reasoned that the courts ought to play a role in evaluating whether legislative processes are in keeping with the special relationship between Indigenous peoples and the Crown.

The full reasons of the Supreme Court of Canada can be found here and a short summary is provided here.

Case Watch for November 2016

FROM OUR PUBLICATIONS DESK

Case Watch

The following decisions came across our desk over the past month:

Equality rights of Métis children & families in child protection

Catholic Children’s Aid Society of Hamilton v GH, 2016 ONSC 6287: The Ontario Superior Court of Justice released a decision in a Crown wardship application where it was found that the definitions of “Indian”, “Native person”, and “Native child” in Ontario’s Child and Family Services Act were invalid on the basis that they unjustifiably infringe s 15 of the Charter. The Court found that the impugned definitions do not extend to all individuals who self-identify as being Aboriginal. In fact, all parties conceded that they do not extend to Métis children. The Court also found that the Act afforded significant special protections for individuals falling into these definitions at every stage of a child protection intervention. The Court recognized that all Aboriginal peoples, including Métis, have been subject to a legacy of prejudice, stereotyping, and disadvantage. With this context in mind, the Court determined that the definitions created distinctions based on the analogous ground of “Aboriginality without membership in a community designated as “Native” under the [Act]”. It also concluded that these distinctions created or perpetuated disadvantage for Métis children and their families due to their inability to access the special protections under the Act. In conducting this analysis, the Court noted that the Act clearly created these unfair and objectionable disadvantages on its face and this could be discerned through logical reasoning alone. There was no need for social science evidence and empirical data. As no s 1 argument was advanced, the infringement was not saved. A suspended declaration of invalidity was issued and it was ordered that the Métis child in this case be treated as if he were an Indian, Native person or Native child within the meaning of the Act.

Inadequate investigation of vote-buying allegations by INAC

Good v Canada (Attorney General), 2016 FC 1272: The Federal Court released a decision allowing in part an application for judicial review of INAC’s dismissal of an election appeal under the Indian Act. The applicant first unsuccessfully sought to appeal the March 2014 election of the Red Pheasant First Nation through INAC based on allegations of misconduct by the electoral officer and corruption in the form of vote-buying. She then sought judicial review of INAC’s rejection of that appeal. However, a subsequent election had since taken place in March 2016. The Court found that INAC’s delegate erred by choosing to dispense with any investigation of the applicant’s vote-buying allegations and proceeding to dismiss the appeal on the basis that corruption had not been proven on a balance of probabilities. The Court noted that this approach appears to have become settled practice within INAC’s Elections Unit. While the Court was sympathetic to INAC’s desire to streamline its management of appeals, it had significantly changed the very nature of the appeals process in a manner tantamount to attempting to amend the law via internal policy. The Court took no issue with how the delegate addressed the issue of electoral officer misconduct, but found that the delegate’s refusal to investigate conflicting evidence on vote-buying was unreasonable, based upon an error of law and procedurally unfair. While these issues were moot due to the subsequent election, the Court exercised its discretion to deal with the central controversy between the parties as roughly 40% of First Nations hold elections under the regime at issue in this case.

Relevance of Aboriginal equity stake to remedy in consultation case –

Michipicoten First Nation v Ontario (Minister of Natural Resources and Forests), 2016 ONSC 6899: The Ontario Superior Court of Justice dismissed an application for judicial review of provincial approvals for the Bow Lake Wind Farm Project on the shared traditional territory of the Michipicoten and Batchewana First Nations in northeastern Ontario. Michipicoten argued that the Crown breached its duty to consult and sought to quash the approvals, preclude further approvals until more consultation takes place, and have the court remain seized of remedies or order removal of the infrastructure, remediation of the lands, and costs. The Court noted that Michipicoten had inexplicably delayed several months in pursuing and perfecting its application for judicial review, which caused the proponent and Batchewana, which has a 50% interest in the project, serious harm. For this reason, the Court dismissed the application on its own motion. In the alternative, the Court went on to conclude that consultation was adequate as Michipicoten failed to provide any evidence of potential adverse impacts on its Aboriginal or treaty rights in spite of many requests to do so. Furthermore, the Court concluded that the remedy sought in terms of decommissioning the project was inappropriate. Michipicoten argued that a proponent’s commercial interests may not come into play in determining the balance of convenience in a consultation dispute between the Crown and an Aboriginal community. However, the Court found this principle inapplicable in this case since Batchewana would face irreparable harm if the relief sought was granted.

Validity of a Will under the Indian Act not providing for spouse –

Poitras v Khan, 2016 SKQB 346: The Saskatchewan Court of Queen’s Bench allowed an application for letters probate under a Will created pursuant the Indian Act. The testator met the man who became her husband and married him after she had already made her Will. Under provincial legislation, the testator’s spousal relationship would have automatically revoked her Will. However, the testator was a status Indian living on reserve and there was no such provision under the Indian Act to invalidate her Will automatically. Under the Indian Act, the Minister had the power to declare the Will void if it imposed hardship on persons to whom the testator had responsibility or was contrary to the interests of the band or the public. In this case, the Minister had referred the matter to the Court, conferring its power to declare the Will void on the Court. The testator’s husband, Mr. Khan, sought to invoke this power on the basis that he was not provided for in the Will. The Court confirmed the validity of the Will, but also noted that Mr. Khan could still potentially seek a claim for one half of the testator’s family property accrued from the date of marriage until death under provincial legislation.

Canadian Human Rights Tribunal’s jurisdictional limits re: Indian Act –

Beattie v Canada (Attorney General), 2016 FC 1328: The Federal Court dismissed an application for judicial review of a decision of the Canadian Human Rights Tribunal where a complaint was dismissed as being solely a challenge to legislation beyond the Tribunal’s jurisdiction. The applicant, Mr. Beattie, sought to register two leases and an assignment of lease in the Indian Lands Registry. The Registrar rejected the applications on the basis that the leases did not include the Crown as a party and no ministerial approval had been provided. Since the leases could not be registered, the assignment could not be registered either. As a result of this decision, the applicants brought a complaint to the Tribunal alleging that the respondent had discriminated against them on the basis of their race, national or ethnic origin by denying a service customarily available to the public. The Tribunal dismissed the complaints on the basis that they were beyond its jurisdiction since they were challenging the Indian Act itself, which obliged the Registrar to reject the leases and assignment. The Court was satisfied that the Tribunal’s decision was reasonable and it was reasonable to rely on other Federal Court and Tribunal decisions where such challenges to legislation were dismissed as beyond the Tribunal’s jurisdiction. The Court also rejected the applicants’ assertion that title to the reserve lands at issue in this dispute were vested in an individual pursuant to either a Certificate of Possession or customary tenure.

Court’s duty to explicitly consider & inquire into Gladue factors –

R v Park, 2016 MBCA 107: The Manitoba Court of Appeal allowed an appeal from sentence for impaired driving and drug possession due in part to the sentencing judge’s failure to adequately consider Gladue factors. It was conceded that defence counsel during the sentencing hearing did not address Gladue factors other than to note that the accused was Aboriginal. No Gladue report was ordered. The Crown argued that defence counsel expressly waived the Gladue rights of the accused whereas counsel for the accused on appeal argued that the Court had a duty to make further inquiry when no advocacy was provided on Gladue factors during sentencing. The Court of Appeal found there was no express waiver in this case. Defence counsel at sentencing acknowledged there were Gladue factors but focused on other arguments. A waiver must be express and clear. Both defence and Crown counsel have an obligation to bring forward Gladue information. Where that does not happen, the Court may need to go further and has a duty to at least make further inquiries. The Court must also make explicit its consideration of Gladue factors and its determination that it has adequate information on those factors before it. It is unsatisfactory for both the offender and the public to have to infer such circumstances were properly considered. The sentencing judge failed to expressly confirm that Gladue factors were considered and failed to clarify defence’s reliance on Gladue, which in turn had an impact on the sentence. The sentence was varied.

No need for ‘linkage’ between Gladue factors & offence –

R v Predham, 2016 ABCA 371: The Alberta Court of Appeal allowed an appeal from sentence with respect to convictions for driving while disqualified, breach of recognizance, failure to appear and possession of a stolen licence plate. The appellant argued that the sentencing judge erred in failing to give appropriate weight to his Gladue factors, among other things. In particular, the appellant took issue with the sentencing judge’s reasons where it was suggested that Gladue factors were less relevant to the offence of driving while disqualified in the absence of alcohol, drugs or violence. The sentencing judge stated that there must be “some relationship between the Gladue factors and the offending in order for there to be that sort of linkage”. The Court of Appeal held that it was an error of law to require a linkage between Gladue factors and the offending conduct. The Court stated that it is also an error to carve out a certain category of offences as being immune from the Gladue analysis. The Court was also satisfied that the sentencing judge’s error influenced his ultimate decision. The sentence was varied.

Injunction against Cleveland baseball team’s name & logo denied –

Cardinal v Major League Baseball, 2016 ONSC 6929: The Ontario Superior Court issued its reasons for dismissing an urgent interim injunction application to restrain the Cleveland baseball team, Rogers Communications, and Major League Baseball (MLB) from displaying the team’s name or logo during a game in Toronto and while the underlying federal and provincial human rights complaints proceed. In the underlying complaints, the applicant, Douglas J. Cardinal, is alleging that the use of the team’s name and logo constitutes prohibited discrimination and harassment against him on the grounds of race, ancestry, colour, ethnic and national origins, and constitutes a publication or display intended to incite infringement of the Ontario Human Rights Code. The Court held that it had jurisdiction over the application, rejecting MLB’s argument that it ought to allow the United States Supreme Court to determine the underlying issues in this case based on principles of comity. The Court was also satisfied that the parties raised serious issues to be tried in terms of whether a service had been offered and whether the team’s name and/or logo offend the provisions of federal and Ontario human rights legislation, as well as the relevance of MLB’s freedom of expression to the dispute. However, the Court did not accept the applicant’s assertion that he would sustain irreparable harm if an injunction was not granted, noting that damages were available and disputes over use of the impugned name and logo have been ongoing for years. The Court noted that the applicant sought a change to the status quo and his last minute application, if granted, would materially prejudice the respondents. The issue of delay went to both the question or irreparable harm and the balance of convenience.

Settlement approved in Newfoundland & Labrador school claims –

Anderson v Canada (Attorney General), 2016 NLTD(G) 179: The Newfoundland and Labrador Supreme Court approved the terms of a $50 million settlement in a class action brought by Aboriginal individuals who attended schools, dormitories or orphanages in the province between 1949 and 1980. The plaintiffs claimed that Canada breached a fiduciary duty to the students who attended these facilities to protect them from actionable physical or mental harm. The Court was satisfied that the settlement was fair, reasonable, made in good faith, and in the best interests of the class as a whole. It was also satisfied that the fees and disbursements of the plaintiffs’ counsel were fair and reasonable. The settlement includes both General Compensation Payments for years that students resided at the facilities at issue, and Abuse Compensation Payments that depend on the harm individual students suffered. The settlement provides for a confidential paper-based claims process and Canada is committed to funding mutually agreeable commemoration and healing initiatives over and above its compensation funding.

Tax Court’s exclusive jurisdiction over tax assessment challenges –

Horseman v Canada, 2016 FCA 252: The Federal Court of Appeal dismissed an appeal from a decision to strike the appellant’s claims as falling under the exclusive jurisdiction of the Tax Court of Canada. The appellant received a Notice of Assessment and Requirement to Pay $59,000.06 of outstanding GST. He initiated this Federal Court action for a declaration that the Requirement to Pay is null and void and contrary to the Indian Act, Treaty No. 8, and s 35 of the Constitution Act, 1982. The Court found that this challenge was properly characterized as an indirect challenge to a tax assessment, making it plain and obvious that the Tax Court had exclusive jurisdiction. The Tax Court has jurisdiction to consider the constitutional validity, applicability or operability of federal legislation and regulations and can issue remedies if a notice of constitutional question is properly served. It is also well-established that the Tax Court can determine claims under s 87 of the Indian Act over the applicability of tax requirements, or involving tax exemption claims under Treaty No. 8. Such assertions are properly tested in the Tax Court.

Provincial human rights tribunal’s jurisdictional limits re band store –

Dinsmore v Slenyah Store, 2016 BCHRT 176: The British Columbia Human Rights Tribunal dismissed a human rights complaint alleging discrimination in the area of employment on the basis of colour or race with respect to a business in Fraser Lake, British Columbia known as the Slenyah Store. The business was operated by the Stellat’en First Nation up until April 2014. The majority of its customers are status Indians who are able to purchase gas and cigarettes at tax exempt rates there. In 2013, the store was in serious financial difficulty. It was kept afloat via overdraft protection from Stellat’en and Stellat’en paid the store’s back taxes to get it out of its financial difficulties. In 2014, the store was incorporated to be operated at arm’s length through a limited partnership. As a result of these changes, all the store’s employees were laid off by Stellat’en and encouraged to reapply for positions with the limited partnership that would operate the store going forward. The Tribunal found that while the store was operated by Stellat’en it was an integral part of the First Nation’s overall governance and operations. Its purpose was to permit members to avail themselves of their tax-free status, it was financially integrated with the First Nation, its employees were employees of the First Nation, and its operations were continuously concerned with the status, rights and privileges of Stellat’en’s members. As a result, the store fell under federal jurisdiction and outside the Tribunal’s jurisdiction while it was operated by Stellat’en. While operated at arm’s length through a limited partnership, however, the store was a provincial undertaking subject to the Tribunal’s jurisdiction. The Tribunal went on to dismiss the complaint against both entities on the ground that it had no reasonable prospect of success if it were to proceed on its merits.

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This Case Watch blog post has been brought to you by the Native Law Centre in partnership with Pro Bono Students Canada – University of Saskatchewan

Case Watch for October 2016

FROM OUR PUBLICATIONS DESK

Case Watch

The following decisions came across our desk over the past month:

Jurisdiction of superior courts over transboundary Aboriginal rights

Uashaunnuat (Innus of Uashat and Mani-utenam) c Iron Ore Company of Canada, 2016 QCCS 5133 (in French only): The Superior Court of Quebec dismissed an application from the defendants to strike portions of the plaintiffs’ claims. The Innu plaintiffs are suing the defendants, a mining company and a railway company, for $900M in damages for alleged harms to their section 35 rights within their traditional territory, the Nitassinan, which covers a large portion of the Quebec-Labrador peninsula. The defendants argued that to the extent the plaintiffs’ claims relate to land outside Quebec’s borders, those claims are outside the jurisdictional competence of the Quebec Superior Court, as per the Quebec Civil Code. The claims are premised on asserted Aboriginal rights and title, as well as treaty rights. In determining this application, the Court noted the need to consider the Aboriginal perspective when addressing section 35 rights, the sui generis nature of these rights, and the fact that recognition of these rights is ancillary to the primary focus of this litigation, which is on damages. The Court also rejected forum non conveniens and Crown immunity arguments. It noted in the latter case that the section 35 rights of the Innu are existing rights, not rights created by the courts, and should therefore not differ as between Quebec and Labrador.

Freedom of expression in context to injunction application for blockade

Siksika Nation v Crowchief, 2016 ABQB 596: The Alberta Court of Queen’s Bench granted the Siksika Nation an interlocutory injunction against a group of its members to prevent them from interfering with its contractor’s efforts to rebuild homes in an on reserve development. The respondent stated that his purpose for initiating the blockade was to draw attention to alleged issues of oversight, accountability and transparency with respect to the applicant’s use of financial resources on this project, among other things. The respondent invoked his Charter right to freedom of expression in defence of the protest and blockade. The Court found that the applicant was able to meet the test for an interlocutory injunction. The Court also held that the Charter did not apply in the circumstances, since the injunction was aimed at ensuring the applicant and its contractor could fulfill the terms of a private agreement, and the applicant was not seeking to prevent the respondents from pursuing legal avenues to express their dissent. The Court further concluded that the injunction would be a justifiable infringement of the respondents’ Charter rights even if the Charter had applied.

Annuity claims and the unique context of each Numbered Treaty –

Horseman v Canada, 2016 FCA 238: The Federal Court of Appeal dismissed an appeal from a Federal Court decision that declined to certify a proposed class proceeding for treaty annuities owed under each of the Numbered Treaties. The Federal Court had concluded that there was insufficient commonality between the circumstances of each treaty’s annuity clause for the purposes of a class action. The Court of Appeal upheld the decision and substantially agreed with the Federal Court’s analysis. It held that treaty interpretation requires an intensive inquiry into the mutual intent of the parties and the purposes for which they entered treaty. Due to the unique historical, cultural, and economic context surrounding each treaty, class proceedings would likely not have issues of commonality unless they were limited to a particular Numbered Treaty.

Admission of extrinsic evidence re: duty to consult on judicial review –

Sipekne’katik v Nova Scotia (Minister of Environment), 2016 NSSC 260: The Supreme Court of Nova Scotia allowed the admission of affidavit evidence beyond the record in a statutory appeal from ministerial approvals under Nova Scotia’s Environment Act. The approvals were for the development of an underground natural gas storage facility. Sipekne’katik claim Aboriginal and treaty rights to hunt and fish in the area where the project will be developed. The Court held that evidence beyond the record would only be admissible in exceptional circumstances, such as breaches of natural justice and procedural fairness. All parties relied on the Crown’s duty to consult falling within the broad heading of a “breach of procedural fairness” in order to argue that their respective affidavits were admissible. The Court noted that affidavit evidence would not be admissible merely because the honour of the Crown was raised as an issue. They must relate to the scope and content of the duty to consult and whether that duty has been fulfilled. Under this test the Court accepted all the affidavits, subject to the striking of some argumentative portions.

Injunction granted against logging blockade –

D.N.T. Contracting Ltd v Abraham, 2016 BCSC 1917: The Supreme Court of British Columbia granted a logging company’s application for an injunction prohibiting members of the Takla Lake First Nation (TLFN) from blocking, physically impeding, or delaying access to harvesting sites under a timber licence. Members of the TLFN stated that their burial sites and traditional territory were within the cut block boundaries of the licence. They also stated that TLFN receives a larger number of consultation referrals than they can manage due to their small size and financial management issues from previous administrators. TLFN indicated it was willing to negotiate with the applicant and allow the logging if accommodation could be reached. The Court held that the blockade constituted irreparable harm as further delays would threaten the economic standing of the company’s operations and harm it significantly. The Court held that TLFN should have brought its issues forward during the consultation process before the licences were approved, rather than threatening the administration of justice by blocking access to the harvesting sites long after the time for consultation had passed.

Appraisal of lease rates for on reserve recreational properties –

Schnurr v Canada, 2016 FC 1079: The Federal Court resolved three common issues in a class action lawsuit filed by a group of on reserve cottagers. The plaintiffs are disputing a rental increase proposal of up to 700% for each year of a five-year rental term. The primary issue was the appropriate methodology for determining the fair market rental value of the leased properties. The Court determined that the appropriate method was to consider comparable lease rates on comparable property. The Court sided with the plaintiffs’ real estate appraiser because of his greater knowledge of the subject property, and familiarity with the Saskatchewan market and the recreational lands in the province. It did not accept the argument that provincial park rates should be excluded from the calculation due to policy constraints on those rates.

Public interest standing on judicial review of Chief Coroner’s decision –

Blackjack v Yukon (Chief Coroner), 2016 YKSC 53: The Yukon Supreme Court dismissed an application to strike the Little Salmon Carmarks First Nation (LSCFN) from an application for judicial review on the basis that it had no standing. Theresa Blackjack and LSCFN jointly filed a petition for judicial review of the Chief Coroner’s decision to close an investigation into the death of Theresa’s daughter, Cynthia Blackjack, without ordering an inquest. The Chief Coroner asserted that LSCFN had no standing in relation to the subject matter of the petition. The Court concluded that LSCFN had public interest standing to proceed with the petition because LSCFN raised a serious justiciable issue, had a real stake or genuine interest in that issue, and the proposed suit was a reasonable and effective way to bring the issue before the courts.

Limitations period for negligence claim based on sexual assault:

Fox v Narine, 2016 ONSC 6499: The Ontario Superior Court of Justice dismissed an application to strike a statement of claim alleging that a shelter was negligently operated when the late plaintiff was sexually assaulted there. The plaintiff was subsequently murdered. The Court held that there was a sufficiently proximate relationship between the late plaintiff and the shelter where she was staying at the time of her assault. There was also no reason to override or limit the scope of the duty of care. The statutory provision that would allow this action to proceed was created to improve the protection that the law offers to victims of sexual violence. While a limitation period under the Trustee Act, 2002 would ordinarily have barred the claim from being brought more than two years after the plaintiff was killed, there is no limitation period under the Limitations Act, 2002 where an action is based on sexual assault. The more general statute must yield to the more specific one, which was the limitations legislation in this case.

Canada not estopped from estoppel argument in Treaty 8 tax litigation –

Tuccaro v Canada, 2016 FCA 259: The Federal Court of Appeal dismissed an appeal from an interlocutory order of the Tax Court of Canada. Mr. Tuccaro unsuccessfully sought to strike portions of Canada’s reply where it was asserted that he was estopped from asserting a treaty right to tax exemption under Treaty 8. Mr. Tuccaro argued that this issue was definitively addressed in a past Federal Court of Appeal decision in this litigation with respect to an appeal from another motion to strike, and Canada was therefore estopped from raising its estoppel argument. Both the Tax Court and the Federal Court of Appeal disagreed. The Court of Appeal did not find it plain and obvious that Canada would be estopped from raising its estoppel argument, especially considering the discretion that a trial judge maintains over whether it accepts such an argument. The Court of Appeal also suggested that Mr. Tuccaro’s argument could have grave consequences if it were accepted. It could force litigants to raise grounds that they know have no chance of meeting the stringent test for motions to strike in order to avoid potential issue estoppel arguments on those unpleaded grounds.

Duty to reference Gladue factors in reasons for sentence –

R v Wheatley, 2016 BCCA 397: The British Columbia Court of Appeal allowed an appeal from a sentence of 18 months imprisonment for breach of a residency requirement in a long-term supervision order. The sentencing judge made no mention at all of Mr. Wheatley’s Aboriginal background or his traumatic upbringing, although this was established during the sentencing hearing and the subject of submissions. The judge was clearly aware of the law, having been the sentencing judge for one of the sentences on appeal in the Supreme Court’s Ipeelee decision. However, the importance of Mr. Wheatley’s Aboriginal background and the traumas he suffered growing up appear to have been “lost in the shuffle” when it came to the imposition of a sentence. The Court of Appeal held that “[t]oday, reference to an Aboriginal offender’s circumstances should be seen as mandatory”. The sentencing judge erred in failing to particularly consider Mr. Wheatley’s Aboriginal circumstances and Gladue factors, resulting in an unfit sentence.

Gladue factors applied in determining whether s 24(1) of Charter supported curative discharge –

R v Daybutch, 2016 ONCJ 595: The Ontario Court of Justice ordered a curative discharge for Ms. Daybutch with respect to her convictions for impaired driving offences, finding it to be both appropriate for the defendant and in the public interest. Earlier in these proceedings the Court had concluded that Ontario was in violation of the s 15 equality rights of Indigenous people in Ontario by failing to request the proclamation into force of a curative discharge option for impaired driving offences. This decision on sentence adopted a remedial approach under s 24(1) of the Charter. The Court had before it a Gladue report on Ms. Daybutch that indicated how her offences related to the systemic and background factors she faced as an Aboriginal woman. The Court took the view that the use of a curative discharge where warranted for Aboriginal offenders would permit sentencing judges to act in a Charter-compliant manner in accordance with the Supreme Court’s directions in Gladue and Ipeelee.

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This Case Watch blog post has been brought to you by the Native Law Centre in partnership with Pro Bono Students Canada – University of Saskatchewan