Catholic Children’s Aid Society of Toronto v ST and BF, 2019 ONCJ 207

The inability to name a child’s bands and First Nations, Inuit or Métis communities does not negate the initial determination that a child is a First Nations, Inuk or Métis child.

Wiyasiwewin Mikiwahp Native Law Centre

The Catholic Children’s Aid Society of Toronto [“Society”] has brought a protection application for SF, an 8-month-old child. The child is in need of protection pursuant to the Child, Youth and Family Services Act, 2017 [“the Act”]. At first the child was described as not a First Nations, Inuk or Métis child but the Court was not satisfied that it had sufficient evidence and adjourned the case for the Society to further explore the issue. After the matter returned to court, it was held that the child should be identified as a First Nations, Inuk or Métis child. The court is not precluded from finding that a child is a First Nations, Inuk or Métis child just because the child does not have any bands or First Nations, Inuit or Métis communities.

The child was brought to a place of safety due to concerns surrounding the parent’s mental health and capacity. The court endorsed that the Society must immediately investigate whether the child is a First Nations, Inuk or Métis child, based on information received from the mother. She stated that her mother had told her that she is of Métis background, but also that her mother had lied to her about many things, so she does not know if she is being truthful or not. The Society had not been able to connect with the grandmother, despite multiple efforts. Neither Indigenous Services Canada or any of the Métis organizations that were contacted had been able to confirm the family’s identity. The society did contact the great-grandmother, who confirmed that the family is Métis and that her mother was Indigenous, but that was all the information they had.

Once the court determines that a child is a First Nations, Inuk or Métis child, the second part of the statutory finding that must be made is to identify the child’s Indigenous bands or communities. There may be more than one band or community (Children’s Aid Society of Algoma v CA, 2018 ONCJ 592 [“CAS of Algoma v CA”]). The Act sets out that its paramount purpose is to promote the best interests, protection and well-being of children. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to such eligible individuals should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

The court must apply the definition of First Nations, Inuit or Métis child set out in the Ontario Regulation 155/18 for the purpose of identification under the Act and the criteria is exhaustive. The court should take a broad view in interpreting if the child has a connection to an Indigenous band or community under the regulation. This seems to be in accordance with the spirit of the Act which tends to be more inclusive when it deals with Indigenous peoples. Subparagraph 1(c) of the Ontario Regulation 155/18 uses the words “there is information that demonstrates that”, which sounds like a clear invitation to the person making the s 90(2)(b) determination of identity to rely on information that is not necessarily “evidence”. It says nothing about the standard of such information (CAS of Algoma v CA).

However, to just say that anyone can put forth a claim and have it accepted without question would be an open invitation to abuse the administration of justice. It could cause considerable harm to children by delaying decisions affecting them and would be disrespectful to the First Nations, Inuit and Métis persons the Act is intended to include. While the inability of a person to name specific Indigenous bands or communities might be a factor in assessing the identification issue, it should not be determinative. The reality is that due to the Sixties Scoop, many Indigenous persons now have fractured memories of their Indigenous connections and it is likely that many will not be able to name specific bands or communities. Evidence or information will often come from memories of discussions with relatives and will often lack detail. Many will not be registered with any First Nations band or belong to any First Nations, Inuit or Métis organization. In many cases, neither will their parents. This does not necessarily preclude the court from making a finding that the child is a First Nations, Inuk or Métis child. The new legislative provisions are an opportunity for these children to reignite lost connections with their culture and heritage.

The court should take a broad view in interpreting if a child is a First Nations, Inuk or Métis child (CAS of Algoma v CA). This is an approach that is consistent with the statements made in both the preamble and purposes section of the Act. It is this court’s view that only a low threshold of reliable and credible evidence or information should be sufficient to make a finding that a child is a First Nations, Inuk or Métis child. The Act and regulations set out considerable rights and additional considerations for these children that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family. It would be contrary to the purposes of the Act to disenfranchise these children. If a child’s Indigenous bands or communities cannot be identified, it is the rights that are set out in the Act that are not activated. However, many other additional considerations still apply to First Nations, Inuit and Métis children in the Act and its regulations that should not be extinguished just because the child’s Indigenous bands or communities cannot be named. The same best interests test applies on an adoption application.

The court received information from the great-grandmother that she identifies as a First Nations, Inuk or Métis person. However, a great-grandmother is not a relative as defined in the Act. The legislature put a limit on how far back the investigation about a child’s family’s First Nations, Inuit or Métis connections would go to two generations before the child. However, the grandmother is a relative, and despite her lack of cooperation with the Society, she provided specific information to the mother that she identified as Métis. The problem the court initially faced was that the mother claimed that the grandmother was not truthful. This is where the subsequent information provided by the great-grandmother became important. Essentially, the great-grandmother corroborated the information provided by the grandmother to the mother, by stating to the Society that the family is Métis and that her mother was Indigenous. The court finds that this evidence and information is sufficient to meet the low threshold required to find that the child is a First Nations, Inuk or Métis child.

Good v Canada, 2018 FC 1199

Application dismissed. The applicant did not discharge her burden to satisfactorily prove that the First Nations Election Act was contravened during a First Nation’s Chief and Band Council election.

Wiyasiwewin Mikhiwahp Native Law Centre
Case Watch

Michelle Good has appealed all of the last three elections of the Red Pheasant First Nation [RPFN], but this is the first appeal she has applied for under the First Nations Elections Act [FNEA]. She is a practicing lawyer in British Columbia, and is a band member of the RPFN. On November 5, 2015, the RPFN Band Council signed a Band Council Resolution [BCR] in favour of opting into the FNEA, a statutory regime that legislates a process for First Nations to elect their Band Council members. After receiving the BCR, the Minister added the RPFN to the FNEA Schedule. An election followed on March 18, 2016. After the election results became known, Good filed an application under s 30 of the FNEA in the Federal Court to review the election. She went on to allege that the election and the election process contravened numerous sections of the FNEA. Good has applied for nine different declarations and an order that a new election be called as her only relief.

An election to be set aside requires meeting a statutory test under ss 31 and 35(1) of the FNEA. The two-part test requires the Applicant to establish that a provision was contravened and that the contravention likely affected the election result. Contraventions unlikely to have affected the result of the election will not trigger overturning the election. The requisite standard of proof for establishing this test is the balance of probabilities. In interpreting the FNEA, the Saskatchewan Court of Appeal noted that the presumption of regularity is reflected in the onus and evidentiary burden imposed on an applicant to demonstrate that a contravention has occurred that likely affected the result of an election. Once an applicant establishes a prima facie case, the burden switches to the respondent to refute it. The type of contravention is important and relevant as not every contravention will justify triggering the overturning of the election. This Court retains discretion on overturning elections, even in situations involving fraud or other forms of corruptions.

Evidence in a judicial review proceeding is dealt with by the Court through examination of the affidavits before it. In this matter, the record before the Court was complicated by numerous affidavits which included redacted affidavits, supplementary affidavits, and late filed affidavits. Many of the affidavits contain hearsay evidence, argument, and irrelevant or inflammatory comments. The Court found this unacceptable, inappropriate, and not a good use of judicial resources. Not only is such a record unfair to the Judge, but it is also unfair to the Respondents as the Respondents cannot know exactly what the relevant allegation is, or the specific evidence that supports the allegation.

A main allegation in many of the affidavits revolved around cash being given to band members by the Chief and Council at the time of the election and with respect to the appeal. Money given to assist band members in need has been the tradition for many years, and evidence was led by both parties to the effect that the RPFN is not a wealthy First Nation. Many of its members are in need of assistance for food, gas, and other necessities. People text or solicit the Chief and Council for cash and if the requests are deemed as legitimate, typically money will be given from their own pockets or accounts, and on occasion from a band account. This practice does not stop during election campaigning. The Court had to determine in each situation whether the contributions by the individuals were philanthropic, or for the purposes of vote purchasing. The Respondents provided a methodical refutation to these allegations.

There were also allegations of unlawful control of enough blank ballots to control the outcome of the election. The allegations had reasonable explanations given by the Respondents and the Court preferred their evidence. It is not a violation of the FNEA or any common-law principles to be asked to join a slate of candidates. This political maneuvering would appear to be what occurs in many elections, and is a recognized part of the political process. It was also alleged that fraud occurred from the overbroad use of Form 5D (Form to Request a Mail-in Ballot) and Form 8C (Declaration of Person Delivering a Mail-in Ballot Package) which allowed illegally obtained ballot forms to be placed in the ballot box, therefore controlling the outcome of the election. Walking in ballots and completing the 8C Form in itself is not evidence of fraud, especially given that most of the band members live off reserve. Good also alleged that people were given the paper with the slate of candidates that they were to vote for, but there was no evidence of this that was acceptable to the Court. There is no prohibition against entering a polling station with a slip of paper in and of itself.

The substantive allegation surrounding vote buying was supported by excerpted Facebook posts. This is not reliable evidence, as it is inherently suspect. An individual can post on Facebook that they have sold their vote, and another individual can “corroborate” a potentially false narrative without any underlying substrata of truth to the event. While it has been held that Facebook posts can result in legal action, such as in the employment context, it is highly distinguishable from individuals attempting to “set-up” others on social media platforms to establish the corrupt nature of elections on the RPFN. Good was not present at the actual election and her only knowledge was garnished from following social media. There was also alleged vote-buying at the Ramada Inn in the hospitality room put on by the Chief. Having a “come and go” hospitality room is not out of the ordinary for candidates in any and all political forums, and it is not found on these facts that the hospitality room or the events that occurred within comprised an inducement to buy a vote.

The remaining evidence does not support a contravention of the FNEA, and in the alternative, it does not affect the results of the election. There were several other affidavits that were not specifically addressed as that evidence was related to issues not relevant or not before the Court. The Court commented that this election was a complex web of intrigue and that the band is clearly divided in its loyalty and this toxic environment can never be in the best interests of the band.

Toney v Toney Estate, 2018 NSSC 179

Application allowed. The surviving spouse, who is non-Status and a non-band member, has been allowed to continue to occupy a family home on reserve.

Wiyasiwewin Mikhiwahp Native Law Centre
Case Watch

Marlene Toney, a widow, sought an order for indefinite exclusive occupation of her family home on reserve pursuant to s 21 of the Family Homes on Reserves and Matrimonial Interests or Rights Act [“FHR”]. The order also included half the value of her late husband, Lawrence Toney’s interest in the home and outbuildings pursuant to s 34 of FHR. Central to this application was the fact that Marlene is non-Status and a non-band member of the Annapolis Valley First Nation [“AVFN”]. For over 30 years, she and her spouse lived in their family home, investing over $140,000.00 of their own money in permanent improvements after Lawrence obtained a Certificate of Possession for the house in 1998. Marlene was an active part of the community for many years, and even served as the band manager for two years until she was diagnosed with multiple sclerosis. The only substantial asset in Lawrence’s estate is his right and interest in the Certificate of Possession for the land upon which the family home sits and the house itself.

The FHR also includes detailed “Provisional Federal Rules” [“Rules”] intended to govern First Nation communities that have not enacted matrimonial property laws of their own. These Rules, however, apply only to First Nations that have not yet enacted matrimonial property rules under the FHR. Any validly enacted First Nation laws oust the Rules in respect of that First Nation. If a First Nation has signed a self-government agreement with the federal government, under which it has power to manage its reserve lands, the Rules do not apply, even if the First Nation has not enacted matrimonial property laws of its own, unless the federal minister declares that the Rules apply to that First Nation. A First Nation enrolled under the First Nations Land Management Act [“FNLMA”] can oust the application of the Rules by bringing into effect a land code, separate matrimonial property laws under the FNLMA, or matrimonial property laws under the FHR. The FHR identifies how these Rules apply to First Nations who have adopted a land code pursuant to the FNLMA, and to First Nations under self-government agreements with the federal government. It is agreed that AVFN has not entered a self-government agreement with the federal government, nor enrolled under the FNLMA. These Rules apply to the AVFN.

The case at hand is the first decision to provide a comprehensive analysis of the FHR, in particular ss 21 and 34. These sections authorize courts to grant exclusive occupation of the family home and compensation to a surviving spouse for interests in matrimonial assets. The FHR respects the principle of non-alienation of reserve lands and its rules do not lead to non-Status or non-band members acquiring permanent or tangible interests in reserve lands pursuant to s 21 or receiving compensation for the value of reserve lands pursuant to s 34. The FHR, however, balances the equality rights of spouses under ss 15 and 28 of the Charter along with recognition of Aboriginal and Treaty rights under s 35 of the Constitution Act (1982).

Women appeared to have played an important and equal role in all aspects of tribal life and governance in most First Nations during pre-colonial times, and some were even matrilineal societies. The interpretation of the FHR recognizes the role and status of spouses of either gender, not if they are both members of the band. This is consistent with this appearance of Aboriginal values in pre-colonial times as shown in the Royal Commission on Aboriginal Peoples [RCAP]. Gender equality is a universal value that transcends nationality or race and it is in this context that the FHR promotes and protects a compelling and substantial legislative objective. The Court awarded Marlene indefinite exclusive occupation of the family home pursuant to s 21 of FHR, with the condition that she does not cohabitate with anyone during her occupation, except for one of her children or grandchildren. She must maintain the home and not commit waste.

Fort McKay Métis Community Association v Alberta Energy Regulator, 2019 ABCA 15

Permission to appeal denied. The Fort McKay Métis Community Association expressed fears about the potential impact of a project on their Aboriginal rights. It is yet to be answered whether such subjective fears interfere with an undefined Aboriginal right.

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Fort McKay Métis Community Association (Fort McKay Métis) applied for permission to appeal a decision of the Alberta Energy Regulator (AER) that approved Prosper Petroleum Ltd.’s (“Prosper”) oil sands project (the “Project”). The Fort McKay Métis asserts that it has Métis Aboriginal rights to harvest for food in its community and traditional harvesting area and that the Project would adversely affect these constitutionally protected rights. The Project would be located near and operate within part of the Fort McKay First Nation’s reserves. Prosper applied to the AER for approvals in 2013 so it could proceed with the Project under the Oil Sands Conservation Act, the Environmental Protection and Enhancement Act, and the Water Act, which was granted. The Project, however, still needs Cabinet approval, and at the time of this current application, it has not yet been issued.

The AER found the Project to be in the public interest and was consistent with statutory objectives of protecting the environment and promoting sustainable resource development while considering economic growth. It approved the Project on the condition that Prosper will seek input from the Fort McKay Métis with respect to reclamation. The AER found the fear of contamination and other potential impacts to Métis Aboriginal rights was genuine, but implicitly not justified. The content of an Aboriginal right is a legal issue. The AER has a legal obligation to carry out its regulatory responsibilities in a manner consistent with s 35 of the Constitution Act, 1982 (Chippewas of the Thames First Nation v Enbridge Pipelines Inc, [2017] 3 CNLR 45 (“Chippewas”)). The regulator must consider Aboriginal rights “as rights, rather than as an afterthought to the assessment” (Clyde River (Hamlet) v Petroleum Geo-Services Inc, [2017] 3 CNLR 65 (“Clyde River”)). None of the applicant’s authorities supported the view that genuine fears about the effects of the Project, which are not objectively reasonable, are sufficient by themselves to constitute interference with a right protected under s 35 of the Constitution Act, 1982. An independent regulatory agency’s approval of an energy project could trigger the Crown’s duty to consult Aboriginal groups whose treaty and Aboriginal rights might be adversely affected by the project, and this agency could fulfill the Crown’s duty to consult on its behalf (Clyde River; Chippewas).

Her Majesty the Queen v Boyer, 2018 SKPC 70

The Métis are not included in the term “Indians” in the NRTA under paragraph 12. To harvest for food pursuant to s 35 (1) of the Constitution Act, 1982, there must be an ancestral connection to an historic Métis community in the areas that the defendants were charged for harvesting, before Europeans established effective control.

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Three Métis defendants, Mr. Boyer, charged with unlawfully fishing, and Mr. Myette and Mr. Poitras, charged with unlawfully hunting for food, invoked their Aboriginal rights to harvest for food pursuant to s 35(1) of the Constitution Act, 1982. They acknowledge that each of their offences is proven and have been tried together given the similarity of the issues. Fishing and hunting are undisputed practices integral to Métis life. Each of them claim to have Métis harvesting rights in their respective area and that they have harvesting rights as “Indians” under paragraph 12 of the Natural Resources Transfer Agreement 1930 (NRTA).

The Court found that the Métis are not included in the term “Indians” in paragraph 12 of the NRTA entered into between Saskatchewan and the Federal government. In R v Blais, [2003] 4 CNLR 219, the Supreme Court of Canada (“SCC”) held that the Métis in Manitoba were not included in the term “Indians” in the identical provision of the NRTA entered into between Manitoba and the Federal government. In Daniels v Canada, [2016] 3 CNLR 56 (“Daniels”), the SCC held that the Métis are “Indians” for purposes of s 91(24) of the Constitution Act, 1867, but it also held that a completely different interpretive exercise is involved under the NRTA. Paragraph 12 is under the heading “Indian Reserves” with paragraphs 10 and 11, that cover Canada’s Treaty obligation to create and administer Indian reserves. While the SCC’s decision in Manitoba Metis Federation v Canada, [2013] 2 CNLR 281, refers to fiduciary duty, it held Canada did not owe a fiduciary duty in its express constitutional obligation under s 31 of the Manitoba Act, 1870 to provide lands for the benefit of the Métis children in Manitoba. Canada had no express constitutional obligation to the Métis in Saskatchewan from which a fiduciary or any related legal obligation could arise and no power to include the Métis in the NRTA, a negotiated agreement, without Saskatchewan’s agreement.

It was established that all three defendants have an ancestral connection to the historic Métis community of northwest Saskatchewan (“HMCONWS”). The areas that the defendants were charged for harvesting, however, must be determined to be part of the HMCONWS. Applying the test set out by the SCC in R v Powley, [2003] 4 CNLR 321, is to determine when Europeans established political and legal control in those areas. In R v Langan, 2013 SKQB 256, the test was confirmed as being when colonial policy shifted from one of discouraging settlements to one of negotiating treaties and encouraging settlement. While it was shown that some time was spent at Pelican Lake, it was not established that a Métis community existed there prior to European effective control or was part of HMCONWS, therefore Mr. Boyer was found guilty of the offence charged. Given the proximity of Rush Lake to Green Lake, and the evidence that hunting and fishing happened in and around identified historic Métis communities, this area was found to be geographically indistinguishable from Green Lake and a part of HMCONWS, therefore, Mr. Myette is not guilty of his charge. Alcott Creek, and Jackfish Lake/Cochin, were not part of HMCONWS, resulting in finding Mr. Poitras guilty of the offence charged.

 

Environmental Challenges on Indigenous Lands: A CIGI Essay Series

Wiyasiwewin Mikiwahp Native Law Centre

“Indigenous lands are under ever-increasing pressure from governments and extractive sector corporations that are eager to encourage economic development and foreign investment. Against a backdrop of colonialism and dominant societies’ disregard for Indigenous peoples’ own laws, these lands have become the site of conflict and environmental degradation. When Indigenous communities find themselves dispossessed by the government’s approach to extraction licensing, infrastructure development and the establishment of environmental processes and protections, trust can erode quickly.

In November 2018, Indigenous leaders, environmental activists, human rights lawyers, academics, advocates and extractive industry participants came together at a conference in Banff, Alberta to discuss the ongoing efforts to hold industry and government accountable for legacy environmental damage. The discussions provided an opportunity for Indigenous peoples’ own laws to be brought to the foreground in finding solutions to today’s most difficult environmental challenges — and provided inspiration for this essay series. Environmental Challenges on Indigenous Lands explores the complex conflicts between international, domestic and Indigenous law when it comes to addressing a global environmental crisis, supporting economic development and making steps toward meaningful reconciliation.”

View essay publications of the Environmental Challenges of Indigenous Lands: A CIGI Essay Series here.

Hwlitsum First Nation v Canada (AG), 2018 BCCA 276

Appeal dismissed. Descent from a single Indigenous ancestor does not entitle an assertion of section 35 rights. The appellants failed to put forward a clear definition of the collective of rights-bearers on whose behalf they purport to act.

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

This appeal concerns the standing of the appellant Hwlitsum First Nation (the “HFN”) to advance a representative action claiming Aboriginal rights and title. In the underlying action, the appellants sought declarations of Aboriginal title and rights on behalf of the HFN, which they assert is the modern day continuation of the Lamalcha. The HFN asserts that its members are the modern descendants and heirs of the historic pre-colonization Lamalcha Tribe of Indians, and as such are the inheritors of all the Aboriginal rights and title of the Lamalcha.

The issue of standing to advance a claim may be addressed as a preliminary matter in order to avoid unnecessary litigation (Campbell v British Columbia (Forest and Range), [2011] 3 CNLR 151 (“Campbell”)). The rights asserted by the HFN are collective rights. As such, proceedings to assert or enforce those rights must be brought on behalf of a group that is capable of advancing such a claim under s 35 of the Constitution Act, 1982 (Campbell). The criteria to be applied on an application to determine an appropriate collective to bring a representative action in Aboriginal title and rights cases, including the one at hand, are those identified by the Supreme Court of Canada (“SCC”) in Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 (“Dutton”). A summary of those factors provided in Campbell and modified slightly to address the context of Aboriginal representative claims, are: 1) whether the collective of rights-bearers on behalf of whom they purport to act is capable of clear definition; 2) whether there are issues of law or fact common to all members of the collective so defined; 3) whether success on the petition means success for the whole collective so defined; and 4) whether the proposed representatives adequately represents the interests of the collective.

Ancestry alone is insufficient to establish that a modern collective has a claim to the rights of a historic group (Campbell). The HFN are attempting to construct a First Nation out of one family and to then assert s 35 Aboriginal title claims. The HFN submits the judge in the underlying action did not use the correct test. The approach identified by the HFN, however, applies to the substantive resolution of claims to Aboriginal rights and title, and not to the preliminary question of who has the legal capacity to advance them. The judge correctly determined that the test to be applied was set out in Dutton. The need to clearly define the collective in an Aboriginal rights or title case is even more important given the collective nature of the Constitution-protected rights at issue.

It is clear from Campbell that it is for plaintiffs and not the courts to define the group they purport to represent. In Tsilhqot’in Nation v British Columbia, [2008] 1 CNLR 112 (“Tsilhqot’in”), it “should always be the [A]boriginal community that determines its own membership.” The court’s role is to decide if the group members are determinable by clear, objective criteria. The appellants put forward inconsistent definitions of the group they purport to represent. They claim to represent the entire Lamalcha, or Lamalcha [I]ndigenous people, nation, or group. At the hearing, however, they claimed to represent only some of the Lamalcha, excluding “all Lamalcha who may be members of other bands, as well as the Lamalcha who are not descendants of Si’nuscutun.” As the trial judge noted, this is contrary to their assertion that the HFN and the Lamalcha are synonymous terms. They cannot define themselves as descendants of only one member of the ancestral group, and at the same time submit that they are the descendants of all the Lamalcha. This is fatal to the action proceeding under Rule 20-3 of the Supreme Court Civil Rules that govern the procedure for representative proceedings.

There is no dispute between the parties that the rights they assert are communal rights which belong to the Aboriginal community and not to any individual (Delgamuukw v British Columbia, [1998] 1 CNLR 14 (“Delgamuukw”); R v Powley, [2003] 4 CNLR 321). Aboriginal rights and title vest in the historic Aboriginal community at the time of contact in the case of Aboriginal rights, and at sovereignty in the case of Aboriginal title (DelgamuukwTsilhqot’in). The historic Aboriginal community in issue in the present case is the Lamalcha Tribe of Indians. In order to assert a claim under s 35the HFN must be capable of advancing a claim to the historic and communal rights of the Lamalcha (Campbell). The HFN cannot assert such rights, because they define themselves as only one branch of the descendants of the Lamalcha Tribe, or those Lamalcha who are descendants of Si’nuscutun and who are not members of any other Indian band. Si’nuscutun himself, however, as an individual, never held and could never hold any of the claims for Lamalcha rights. Those rights belong to the Lamalcha community and Si’nuscutun only enjoyed the benefit of the rights by virtue of his membership in that community. It is settled law that Aboriginal title cannot be held by individual Aboriginal persons (Delgamuukw). The HFN claims to represent one historical Lamalcha member and his descendants, rather than the entire historical Lamalcha collective. Since it is the historic community, and not one of its members, which holds the rights in issue, the appellants cannot represent the collective.

Editor’s Note: On March 28, 2019, the application for leave to appeal from the judgment of the Court of Appeal for British Columbia, 2018 BCCA 276, was dismissed.

The Standing Committee on Industry, Science and Technology: Statutory Review of the Copyright Act

Wiyasiwewin Mikiwahp Native Law Centre

COMMITTEE OBSERVATIONS AND RECOMMENDATIONS

The Standing Committee recognizes that, in many cases, the Act fails to meet the expectations of Indigenous peoples with respect to the protection, preservation, and dissemination of their cultural expressions. The Committee also recognizes the need to effectively protect traditional arts and cultural expressions in a manner that empowers Indigenous communities, and to ensure that individual Indigenous creators have the same opportunities to fully participate in the Canadian economy as non-Indigenous creators.

Achieving these objectives will require that policymakers approach the matter in creative ways. They could, for example, draw inspiration outside of copyright and intellectual property law and carefully consider how different legal traditions, including Indigenous legal traditions, interact with each other. Such work requires a more focused and extensive consultation process than this statutory review. The Committee, however, cannot stress enough the importance of moving forward collaboratively with Indigenous groups and other stakeholders on the matter, and that potential solutions proposed by Indigenous witnesses in this review should serve as a starting point. The Committee therefore recommends:

Recommendation 5

That the Government of Canada consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others:

  • The recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation;
  • The participation of Indigenous groups in the development of national and international intellectual property law;
  • The development of institutional, regulatory, and technological means to protect traditional arts and cultural expressions, including but not limited to: 1) Creating an Indigenous Art Registry; 2) Establishing an organization dedicated to protecting and advocating for the interests of Indigenous creators; and 3) Granting Indigenous peoples the authority to manage traditional arts and cultural expressions, notably through the insertion of a non-derogation clause in the Copyright Act.

The Committee cited, but did not repeat, the recommendation from (Manatch, ICMI, and Sa’ke’j Youngblood Henderson for a non-derogation clause (see footnote 49, page 29 of attached PDF below).

https://www.ourcommons.ca/DocumentViewer/en/42-1/INDU/report-16/page-87#15

https://www.ourcommons.ca/Content/Committee/421/INDU/Reports/RP10537003/indurp16/indurp16-e.pdf

Beaucage v Métis Nation of Ontario, 2019 ONSC 633

Motion granted. The nature of the Métis Nation of Ontario’s responsibilities and relationship with the government, does not transform the private voluntary organization’s membership decisions into public law decisions that are subject to judicial review.

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Métis Nation of Ontario (“MNO”) has moved to quash this application for judicial review on the ground that this Court has no jurisdiction. The underlying application for judicial review sought an order to set aside the decision of a genealogist, that denied the applicant’s appeal from earlier decisions that refused his application for membership in the MNO. The applicant’s mother and sister became registered citizens of the MNO in 2002. In 2003, the Supreme Court of Canada (“SCC”) released its decision in R v Powley, [2003] 4 CNLR 321 (“Powley”). The SCC, although emphasizing that there is no universal definition of “Métis”, provided a framework for determining who is Métis for the purposes of s 35 of the Constitution Act, 1982. Thereafter, a new definition of “Métis” was effectively adopted by the MNO. This application for judicial review does not relate to s 35 rights. When the new definition was implemented by the MNO, however, current citizens such as the applicant’s mother and sister were grandfathered and therefore did not need to meet the new requirements. New applicants, including family members as in this situation, however, must now meet the new requirements.

The test on a motion to quash an application for judicial review asks whether it is plain and obvious or beyond doubt that the judicial review application would fail (Adams v Canada (AG), 2011 ONSC 325 (“Adams”); Certified General Accountants Assn of Canada v Canadian Public Accountability Board (2008), 233 OAC 129 (Div Ct)). In this case, it is beyond the jurisdiction of this Court. As found in prior decisions, the Divisional Court has no jurisdiction under s 2 of the Judicial Review Procedure Act to judicially review any decision outside the public law sphere (Trost v Conservative Party of Canada, 2018 ONSC 2733; Adams; Deeb v Investment Industry Regulatory Organization of Canada, 2012 ONSC 1014). The purpose of judicial review is to ensure the legality of state decision making (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 (“Wall”). In Wall, the SCC underscored the importance of distinguishing between “public” in the generic sense and “public” in the public law sense. Broad public impact is insufficient to bring a decision within the public law sphere.

All corporations are creatures of statute. The corporation must be discharging public duties or exercising powers of a public nature before it is subject to judicial review (Knox v Conservative Party of Canada, 2007 ABCA 295). The MNO Act does not confer public duties on the MNO or delegate governmental responsibilities to it. The MNO Act and its history do not transform the decision at issue into a public law decision that is subject to judicial review. The MNO participates specifically on behalf of its citizens, not on the basis that it represents all Métis (“Powley”). Provincial and federal governments may accept an MNO card based on the MNO registry of citizens, but an MNO card is not an exclusive requirement. The MNO calls its members citizens but nothing turns on the use of that nomenclature.

Blackjack v Yukon (Chief Coroner), 2018 YKCA 14

Wiyasiwewin Mikiwahp Native Law Centre

Appeal dismissed. The chief coroner and a judge have concurrent, equivalent and continuing jurisdiction to order an inquest whenever it is advisable, regardless of the steps previously taken by the chief coroner.

This is an appeal by the chief coroner from an order that an inquest be held into Cynthia Blackjack’s death, a First Nation woman from Little Salmon Carmacks First Nation (“LSCFN”). Ms. Blackjack, after having repeatedly attended a local health centre, died during her transport to Whitehorse on-board a medevac aircraft. The chief coroner assumed conduct of the investigation under the Coroners Act, and after her investigation, she decided not to hold an inquest into the circumstances surrounding Ms. Blackjack’s death. The LSCFN brought allegations of racial discrimination in the provision of health care services to the chief coroner’s attention and asked for her reconsideration of an inquest. Despite the allegations of systemic discrimination, the chief coroner maintained her decision. The LSCFN and the mother of Ms. Blackjack then applied to a judge under s 10 of the Coroners Act for an order that an inquest be held, which was granted. The chief coroner appealed from this order and to have it set aside. She contends that the chambers judge lacks the jurisdiction to make the order and has failed to accord her decision due deference.

There are two distinct functions for an inquest by Canadian coroners into the circumstances surrounding questionable deaths in their communities (Faber v The Queen, [1976] 2 SCR 9, (“Faber”); Charlie v Yukon Territory (Chief Coroner), 2013 YKCA 11, (“Charlie”)): 1) there is an investigative function that is narrow and case specific that involves an inquiry into the identity of the deceased and how, when and where that death occurred and; 2) the public-interest function, which is broader and social. This entails exposing systemic failings that cause or contribute to preventable death, and recommends systemic changes to reduce the risk to human life. It satisfies the community that the circumstances surrounding questionable deaths have received due attention from accountable public authorities (Faber; Pierre v McRae, 2011 ONCA 187, (“Pierre”)).

Coroners perform these functions, with and without the assistance of juries, within parameters established by legislation. When an inquest is conducted, it is inquisitorial in nature and it functions as an extension of the initial investigative process (Charlie). Like coroners, juries do not determine legal responsibility, as inquests also fulfill the broader public-interest function. Over time, Canadian courts have come to recognize this function as increasingly significant for several reasons, including the need to allay public suspicions, remove doubts about questionable deaths and contribute to justice being both done and seen to be done (Faber; Pierre). This is often particularly important where the deceased was a vulnerable person. It is also particularly apparent in this case given Ms. Blackjack’s possible vulnerability as a First Nation citizen and the nature of the care she received in the period preceding her death, regardless of whether a causal link was established between those circumstances and the medical cause of her death.

The applicable principles of statutory interpretation are uncontroversial. As stated in s 10 of the Interpretation Act, the provisions of the Coroners Act must be given such fair, large and liberal interpretation as best insures the attainment of its objects. The words of s 10 must be read in the entire context, in the grammatical and ordinary sense, harmoniously with the scheme and objects of the Coroners Act and the intention of the legislature (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27). The sorts of circumstances that surround a questionable death which may engage the functions of an inquest are potentially diverse and difficult to identify in the abstract. That there is good reason to believe a deceased person received substandard care in and around the time of death, could be a matter of legitimate public concern. It could involve systemic failings and may warrant public scrutiny, regardless of what precisely caused the death from a purely medical perspective.

The chief coroner and a judge have concurrent, equivalent and continuing jurisdiction to order an inquest whenever it is advisable, regardless of the steps previously taken by the chief coroner. Although the chief coroner has other powers under the Coroners Act, they are powers of investigation and administration, neither of which fall within the purview of a judge and all of which a deputy chief coroner can fulfill when the chief coroner is unavailable. The fact that the chief coroner is also granted other statutory powers under the Coroners Act does not suggest the legislature intended to subordinate the jurisdiction of a judge to that of the chief coroner under s 10. The words of s 10 also indicate a concurrent and equivalent jurisdiction that is continuing in nature. The plain meaning of its words is that both the chief coroner and a judge have ongoing jurisdiction to direct an inquest, if advisable, regardless of what has previously transpired. In effect, s 10 allows either the chief coroner or a judge to order an inquest into a death where the chief coroner has previously declined to do so.

Continuing jurisdiction of this sort is unusual in an adversarial system of justice. Nevertheless, it fits comfortably within the overall scheme of the Coroners Act. An inquest does not serve to determine rights and fault. There is no risk of double jeopardy or unduly prolonged exposure to liability posed by continuing jurisdiction of this nature. There is no risk of inconsistent orders if the chief coroner and a judge have concurrent, equivalent and continuing jurisdiction. This is so because s 10 jurisdiction is only exercised when one or the other directs that an inquest be held. While either or both may choose not to exercise s 10 jurisdiction faced with a particular set of circumstances, the Coroners Act does not enable either to order that an inquest shall not be held.