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.

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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.

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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

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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.

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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

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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.

Pictou Landing First Nation v Nova Scotia (Aboriginal Affairs), 2018 NSSC 306

Application granted. A potential for adverse impact suffices to trigger the duty to consult. Although the question is open on whether “government conduct” attracting the duty to consult includes the legislative process, the doctrine does extend to strategic, higher level decisions that may have an impact on Aboriginal claims and rights.

Wiyasiwewin Mikiwahp Native Law Centre

Located at Abercrombie Point, Pictou County, is a bleached kraft pulp mill (“the mill”) that is owned and operated by Northern Pulp Nova Scotia Corporation (“Northern Pulp”). The Boat Harbour Act(“BHA”), provides that the use of the mill must cease on January 31, 2020. Northern Pulp, however, is in the planning stages to apply for an Environmental Assessment (“EA”) (Environmental Act) for the design, construction and operation of a new Effluent Treatment Facility (“ETF”), otherwise the current ETF must be closed as required by the Act. The Province is currently in active consultation with the Pictou Landing First Nation (“PLFN”) regarding this application and has confirmed $70,000.00 in capacity funding to support PLFN’s meaningful participation in that process. The Province has disclosed it is also engaged in confidential discussions directly with Northern Pulp regarding potential Crown funding to support construction of the new ETF (“Potential Crown Funding”), but no such decision has yet been made.

PLFN applied for judicial review of a decision by the office of Provincial Minister of Aboriginal Affairs to deny consultation with respect to the issue of whether the Province may fund the construction of a new EFT. PLFN took the position that any such Potential Crown Funding by the Province is a separate decision that triggers an independent duty to consult with the PLFN, as this decision will have the effect of continuing the operation of the mill beyond the 2020 deadline. It could further impact the asserted rights and interests of the PLFN, but the Province disagrees that any form of Potential Crown Funding would trigger an independent duty to consult with the PLFN, as it does not meet the established legal test. There is yet no additional or potential adverse impact on the PLFN’s rights and interests.

The Court concluded upon the facts that: 1) the current ETF is an integral part of the current operation of the mill as a whole; 2) that the current ETF must close no later than January 31, 2020; 3) that the new ETF which will replace the existing facility will be integral to the continued operation of the mill beyond the deadline, and it must replace those functions discharged by the current ETF; 4) each additional potential source of funding that is available for the project makes it more likely that the new ETF project will happen; and 5) that as a consequence of a Provincial decision to fund the project, even if it is not the only potential source of funding, it would make it more likely that the mill will remain open.

An application for judicial review is the appropriate mechanism by which to seek a determination as to whether there has been a breach of the duty to consult. The Court, however, is not being asked to review a completed process of consultation replete with an extensive activity record. This would ordinarily trigger the application of a standard of reasonableness. But in these circumstances, the extant case law frames the applicable standard of review as one of correctness. Either the duty to consult exists or it does not (Mi’kmaq of Prince Edward Island v Prince Edward Island [2018] PESC 20). The duty to consult is triggered at a low threshold, but it must remain a meaningful threshold. There must be some appreciable or discernible impact flowing from the impugned Crown conduct before a duty to consult will arise. This is both logical and practical because there has to be something for the Crown and the Aboriginal group to consult about. It is conceivable that the Crown may proceed after consultation with a new ETF against the strong opposition of PLFN. But if it did, there becomes an issue of compatibility with the honour of the Crown. “Meaningful consultation” requires a “meaningful effort by the government to act in a manner that is consistent with the honour of the Crown in that particular context” (Mikisew Cree First Nation v Canada (GGC), [2019] 1 CNLR 277 (SCC)).

A potential for adverse impact suffices to trigger the duty to consult as it extends to strategic, higher level decisions that may have an impact on Aboriginal claims and rights (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250 (SCC)). As to what constitutes an “adverse effect”, the claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights. Although there is a generous, purposive approach to this element, past wrongs, including previous breaches of the duty to consult, and speculative impacts does not suffice to be an adverse effect (R v Douglas, [2007] 3 CNLR 277 (BCCA)). The adverse effect must be on the future exercise of the right itself, but an adverse effect on a First Nation’s future negotiating position also does not suffice. Adverse impacts extend to any effect that may prejudice a pending Aboriginal claim or right. Often the adverse effects are physical in nature, however, it could also be in connection with what constitutes Crown conduct, high-level management decisions or structural changes to the resource’s management, even if these decisions have no immediate impact. This is because such structural changes to the resources management may set the stage for further decisions that will have a direct adverse impact on land and resources.

The Province’s interest as lender funding the new ETF will undoubtedly influence “higher level” strategic decision making. If the Province is to become the lender, not only is it providing the means by which the ETF will be built, but it will have an interest to ensure that the mill will continue to remain in operation into the future so as to at least recover the taxpayers’ investment. Separation of the potential funding issue would result in the loss of an opportunity for the two sides to discuss whether the financing, if it was to be provided by the Province, should or could be tied into a system of penalties or rewards for achieving, or failing to achieve, proposed emission or effluent discharge targets. This may, potentially, impact upon the likelihood that these targets would be attained. The bifurcation of issues of the “design and construction” from the “actual funding” of the ETF, artificially compartmentalizes a process which should be treated more holistically.

Fontaine v Canada (AG), a CaseWatch Blog series of five case summaries

This is a special series of five Fontaine v Canada (AG) case summaries that involves the Chief Adjudicator of the Independent Assessment Process of the Indian Residential Schools Settlement Agreement.

 

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Fontaine v Canada (AG), 2018 ONSC 5197 (“The First Direction”)

Direction to terminate the Chief Adjudicator from his duties and all pending litigation that involves the Indian Residential Schools Settlement Agreement.

The Chief Adjudicator has been directed to be removed from his duties from the Independent Assessment Process (“IAP”), a central feature of the Indian Residential Schools Settlement Agreement (“IRSSA”). IRSSA is Canada’s largest and most complex class action settlement that was negotiated over ten years ago. The parties included Canada, representatives of the Indigenous Peoples in Canada, and of the religious organizations that operated Indian Residential Schools (“IRS”). They diligently worked to negotiate a fair, comprehensive and lasting resolution of the legacy of IRSs. The courts that approved the IRSSA have an ongoing role in supervising, implementing, and administering the IRSSA. A simplified and expedited process for the Courts to direct the IRSSA’s implementation and administration is known as a Request for Direction (“RFD”).

The IAP is an elaborate post-settlement claims adjudication process which include means for survivors to seek compensation for claims of serious abuse and other wrongful acts. The Chief Adjudicator’s duties are set out in the IRSSA and the role is responsible for the adjudication of IAP claims through the assistance of an administrative apparatus. The IAP must constitute an autonomous adjudicative body similar to a court and subject to court supervision. The Chief Adjudicator is retained on contract to ensure independence and reports directly to the courts that supervise the Settlement Agreement. The Chief Adjudicator is not independent, however, as judges are, as the role is accountable to the Supervising Courts. That approach is consistent with the leading authorities about the role of autonomous adjudicative bodies in matters before the courts (Ontario (Energy Board) v Ontario Power Generation IncOntario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner (“Goodis”)).

The Chief Adjudicator is obliged to report to the Courts at least quarterly. The most recent, the 43rd Quarterly Report to the Courts, was incomplete, as there were a number of unreported matters. The Chief Adjudicator had not only chosen to participate in several appeals before various appellate courts arising from the IAP, but had amplified that partisan position and now defies the Courts to which he is accountable. The Chief Adjudicator’s standing was challenged in the British Columbia Court of Appeal on a previous occasion, but he was permitted to participate as an intervenor, on the express understanding that his submissions would be limited to questions of jurisdiction and standard of review, but not touch on the merits. It was no answer for the Chief Adjudicator to point out that the Supreme Court of Canada and the British Columbia Court of Appeal had afforded him an audience. His standing in the pending appeals, and to make partisan arguments, has not been adjudicated and he did not advise the Supreme Court of his limited role under the IRSSA.

In connection with Canada’s RFD, the Chief Adjudicator’s counsel advised the Court that he intended to put on hold re-review cases that engaged what were called “procedural fairness” issues. He was directed that the matter be spoken to in open court, and it was made clear that for cases to be put on hold, a stay from the Court of Appeal would be required. No stay had been sought. Nevertheless, the Chief Adjudicator put a hold on the cases anyway. The Chief Adjudicator is an instrument of the IRSSA, not a stakeholder, not a party, and not an advocate for claimants or for itself. His role as an advocate is beyond his proper role, contrary to the scheme of the IRSSA and to the court orders that appointed him Chief Adjudicator. His partisan involvement has caused him to invite appellate courts to disagree with the very courts that are tasked with supervising him and to which he reports, which is unacceptable. His participation, akin to an intervention by an affected party, was not and is not required for a fully informed adjudication. The Chief Adjudicator should not be taking positions in matters arising from IAP decisions.

The goal of finality was contracted for and built into the IRSSA. Use by the Chief Adjudicator of procedural fairness as a means of re-opening IAP claims or holding them in abeyance pending the potential receipt of future admissions would compromise or defeat that important goal. Procedural fairness should not be used to avoid complying with the clear terms of the IRRSA, which preclude admission of new evidence on review or re-review and restricts reviews to the scrutiny of hearing adjudicators’ decisions for an overriding and palpable error. On re-review, the inquiry is limited to whether there was a misapplication of the IAP Model by the review adjudicator. The IAP Model requires that IAP adjudicators be impartial. It goes beyond the proper limits of the concept of procedural fairness to say that the discovery of new evidence is a sufficient basis for re-opening a hearing. Used in the context in which the Chief Adjudicator has used it in the IRSSA, “procedural fairness” is a misnomer, and one which erroneously invokes the administrative law paradigm. The IRSSA is a contract, and while the IAP Model provides an important means of redress to those who suffered abuse at IRSs, the courts and their officers must honour what was negotiated in the contract. Neither the courts nor the Chief Adjudicator should do anything that materially alters the bargain that the parties made. That bargain is set out in the IAP Model and when describing the concept of fairness in that context, the appropriate phrase is “IAP Model fairness”.

The Chief Adjudicator’s active and partisan involvement in the appeals mentioned above cause significant concern for this Court that there is a possible appearance of compromised impartiality. Partisan advocacy, or the appearance of bias, is antithetical to the role of a neutral decision-maker. A tribunal whose decision is under review is not automatically entitled to standing at common law, and a primary consideration in whether they should be permitted to address the Court is the importance of maintaining tribunal impartiality (Goodis). Another concern is that without disclosing in his reports that the Chief Adjudicator is challenging the Court’s supervision of the IAP, he has taken to challenging decisions of his Supervising Courts. The Chief Adjudicator’s actions amount to insubordination of the Courts to which he is accountable, and his conduct runs the risk of compromising his impartiality or the appearance of a compromised impartiality. These circumstances necessitated urgent corrective action on the part of this Court.

 

Fontaine v Canada (AG), 2018 ONCA 749

Relief granted. Direction issued that required the Chief Adjudicator to withdraw from his involvement in three appeals stayed and appeal allowed.

The Eastern Administrative Judge (“EAJ”) for the Indian Residential School Settlement Agreement (“IRSSA”), issued a Direction that required the Chief Adjudicator to withdraw from three appeals that he is involved in has been stayed and an appeal granted. The three-part test for a stay applies: 1) the applicant must demonstrate that there is a serious issue to be tried; 2) that it will suffer irreparable harm if the stay is not granted; 3) and that the balance of convenience favours a stay pending the disposition of the appeal (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 (RJR-MacDonald)).

The Court was satisfied that the Chief Adjudicator raised arguable grounds of appeal and serious questions to be determined. It is arguable that proceeding without notice and without submissions amounts to a denial of procedural justice. The Direction takes the form of a judicial order and the reasons given to support it are in the form of a judicial judgment, therefore, the usual norms of procedural fairness should have been followed. Of particular concern is the finding in the Direction that the Chief Adjudicator is guilty of “insubordination of the Courts to which he is accountable”. This is a finding of serious misconduct made against a lawyer without giving the lawyer an opportunity to respond. The Direction also relates to proceedings in other courts. The Chief Adjudicator is a respondent or an intervenor to the appeals in those other courts and is therefore subject to the control of those courts. The Chief Adjudicator accepts that he is subject to the usual limitations imposed upon administrative tribunals who participate in proceedings that challenge their decisions as outlined in Ontario (Energy Board) v Ontario Power Generation Inc, [2015] 3 SCR 147). There is an arguable issue as to whether the EAJ erred in assuming the authority to determine the nature and scope of the submissions the Chief Adjudicator should make in other courts. It is an issue as to whether the Chief Adjudicator has exceeded the limits of participation permitted for a tribunal in proceedings that challenge the tribunal’s decision.

The Court is satisfied that if a stay is denied, the Chief Adjudicator will suffer irreparable harm from being required to withdraw his factum and participation in an appeal before the Supreme Court of Canada, scheduled to be heard the next day. The balance of convenience favours granting a stay. If a stay is refused, the Chief Adjudicator’s participation in the appeals will be terminated. On the other hand, if the Chief Adjudicator’s participation exceeds the limits of what is permitted, the courts before whom the Chief Adjudicator appears can deal with that problem and limit his participation accordingly. It is accepted that where a stay would effectively determine the matter at issue, a court may go beyond the “serious issue to be tried” standard and grant the stay if the applicant shows a strong likelihood of success (RJR-Macdonald). The Chief Adjudicator has met that standard with respect to the issue of procedural fairness. Granting the stay will not preclude this Court from considering the general issues as to the nature of the relationship between the EAJ and the Chief Adjudicator on the appeal.

 

Fontaine v Canada (AG), 2018 ONSC 5706 (“Second Direction”)

The Eastern Administrative Judge (“EAJ”) for the Indian Residential School Settlement Agreement (“IRSSA”), rescinds his “First Direction” and issues a “Second Direction” to address his concerns and issues with the Chief Adjudicator.

A “Second Direction” rescinds and replaces the EAJ’s earlier Direction (Fontaine v Canada (AG), 2018 ONSC 5197) for the IRSSA. In the First Direction, the EAJ directed that the Chief Adjudicator of the Independent Assessment Process (“IAP”) to terminate his involvement in pending litigation before various appellate courts arising from the IAP, in which he advances partisan positions, thereby compromising the integrity of the IAP. The Chief Adjudicator sought and was granted a stay by the Court of Appeal, pending appeal (Fontaine v Canada (AG), 2018 ONCA 749), largely on the ground that he had been denied due process. The EAJ viewed the stay granted by the Court of Appeal as making the appeal of the First Direction largely moot in that the Chief Adjudicator will go ahead with submissions on an appeal scheduled to be before the Supreme Court of Canada.

Therefore the EAJ rescinds the First Direction and will follow a different path that will provide for a fuller opportunity to canvass this Supervising Court’s underlying concerns and to provide the Chief Adjudicator with a full hearing with due process. The EAJ appoints in the Second Direction an amicus curiae to bring a Request for Direction (“RFD”). This RFD shall be heard and determined at a joint hearing by a panel of two Supervising Judges, to be assigned in accordance with the Court Administration Protocol appended as Schedule “A” to the Implementation Orders. The Second Direction specifies five issues for the RFD to address and lists the materials to be considered. The issues to be addressed reflect similar concerns to those that motivated the First Direction.

 

Fontaine v Canada (AG), 2018 ONCA 832

Relief granted. Stay for the Second Direction nunc pro tunc from the date it was issued. The appeal granted for the Second Direction will be heard together with the appeal from the First Direction.

The direction, now called the “First Direction” (Fontaine v Canada (AG), 2018 ONSC 5197), has been rescinded by the Eastern Administrative Judge (“EAJ”) that supervises, along with other courts, the Chief Adjudicator who is in charge of the Independent Assessment Process (“IAP”) of the multi-billion dollar class action settlement agreement, the Indian Residential Schools Settlement Agreement (“IRRSA”). In the First Direction, the Chief Adjudicator was ordered to withdrawal from three appeals he was involved in, as there were concerns and issues the EAJ had regarding the Chief Adjudicator’s duties. From the EAJ rescinding and replacing his First Direction, with a “Second Direction”, it is arguable to this Court that it was done in violation of the functus officio principle. As the Supreme Court of Canada (“SCC”) stated in (Doucet-Boudreau v Nova Scotia (Minister of Education), [2003] 3 SCR 3 (“Doucet-Boudreau”)), the purpose of this principle is “to allow finality of judgments from courts which are subject to appeal”. The SCC recognized that allowing the court appealed from to vary its orders would allow that court to “assume the function of an appellate court and deny litigants a stable basis from which to launch an appeal” (“Doucet-Boudreau”).

It was also found arguable that the Second Direction amounted to an attempt to short-circuit the appeal to this Court from the First Direction. The Second Direction declared the appeal to this Court “largely moot”, rescinded the First Direction which removes the basis for the appeal, and purports to confer jurisdiction on two extra-provincial judges to decide some of the issues raised by the appeal. In addition, the terms of the RFD that the EAJ directed the amicus curiae to bring, appears to assume, if not decide, some of the issues raised before this Court in the appeal from the First Direction. The Second Direction is a final order from which an appeal lies to this Court. If the Second Direction rescinds the First Direction, it has the effect of ending the appeal from the First Direction, as the Chief Adjudicator cannot appeal from an order that is no longer in effect. The Second Direction thus removes some of the issues raised in that appeal to another tribunal outside the jurisdiction of the Ontario courts. An order that finally determines the forum for the dispute is a final order for the purposes of appeal, even though the substantive issues remain to be determined by the court or tribunal held to have that jurisdiction (Manos Foods International Inc v Coca-Cola Ltd,180 DLR (4th) 309 (ONCA)).

The Second Direction was made without notice and a hearing, thereby in violation of the principles of procedural fairness. It is unprecedented for a judge to purport to rescind an order after it has been made, appealed and stayed, thereby effectively ending the appeal and replacing it with another process. The issue of the Chief Adjudicator’s participation on court proceedings is one that affects all jurisdictions. It is arguable that a panel of two judges from different provincial and territorial superior courts should be avoided where the issue is hotly contested, as there could be risk of disagreement or conflicting results on appeal or even appeals. Irreparable harm could flow from allowing two parallel proceedings to unfold at the same time. There is a clear risk of inconsistent results that would cause confusion from which the Chief Adjudicator and the IAP would suffer serious harm. Conflicting results would also cause harm by bringing the administration of justice into disrepute. The balance of convenience favours granting a stay as it would allow these proceedings to unfold in an orderly manner and avoid duplicative proceedings that could lead to inconsistent results. The three-part test for a stay is met (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311).

 

Fontaine v Canada (AG), 2018 ONCA 1023

The First Direction and the Second Direction is ordered to be set aside. Any party is open to bring a Request for Direction regarding the issues in the directions, however, it must be conducted by a different supervising judge. This process must be carried out in a procedurally fair manner and the directions are limited in scope to the form and content of the reports.

The Indian Residential Schools Settlement Agreement (“IRSSA”) was designed to give some measure of redress to victims of a dark chapter in Canadian history. Since its implementation, tens of thousands of victims have been compensated and billions of dollars have been dispersed. It is near completion and that accomplishment is attributable in no small measure to the many people who are part of the Independent Assessment Process (“IAP”), including the appellant (the Chief Adjudicator), and the Eastern Administrative Judge (“EAJ”). The IRSSA establishes the IAP, a claims adjudication process that acts as a means of providing compensation to individuals who suffered abuse at Indian Residential Schools. The Chief Adjudicator is responsible for ensuring the proper implementation of the IAP. The Oversight Committee is provided by the IAP. The power of the Oversight Committee to appoint a Chief Adjudicator has been expressly limited and made subject to court approval, however, there is no concurrent limitation to terminate the Chief Adjudicator.

The “First Direction” was issued by the EAJ on his own motion and without notice to any party, that prohibited the appellant from continuing his participation in three appeals (the “Impugned Appeals”), one before the Supreme Court of Canada (“SCC”) and two before the British Columbia Court of Appeal (“BCCA”). The EAJ found the appellant to be insubordinate and in defiance of the supervising courts. His reasons were the appellant’s overtly partisan positions, based on the content of his facta and his participation in the Impugned Appeals that failed to be described in a recent quarterly report to the IRRSA Court Monitor. Also of concern in the First Direction, is the appellant’s efforts to hold re-review adjudications in abeyance, pending the outcome of an appeal that considered issues of procedural fairness in the IAP (Fontaine v Canada (AG), 2018 ONSC 5197). The EAJ directed the appellant to withdraw from the Impugned Appeals and remove his facta from the SCC and BCCA registries. The appellant filed a Notice of Appeal against the First Direction in this Court and moved for a stay pending the hearing of the appeal, which was subsequently granted.

The appellant was owed an elevated duty of procedural fairness and natural justice because the EAJ was exercising his judicial functions (A(LL) v B(A), [1995] 4 SCR 536). The EAJ’s power to supervise must be exercised in a manner that conforms to the principles of natural justice and respects the rights of the appellant to procedural fairness. The First Direction amounted to a warning that all the orders for the Chief Adjudicator must implemented by the deadline mandated by the EAJ, otherwise the appellant could face termination from his position. But the power to terminate the Chief Adjudicator resides with the Oversight Committee, not the EAJ. It must also be remembered that the appellant occupies a significant role in the administration of a multi-billion dollar class action settlement, thereby the First Direction compromised the appellant’s professional reputation and his ability to carry out his mandate as Chief Adjudicator.

Subsequently, the EAJ issued another direction (the “Second Direction”), again on his own motion and without notice to any party. The Second Direction purported to rescind the First Direction for the express purpose of avoiding appellate review. It directed “a different path that will provide for a fuller opportunity to canvass this Supervising Court’s underlying concerns” and “provide the Chief Adjudicator with a full hearing with due process, as he submits is his due” (Fontaine v Canada (AG), 2018 ONSC 5706). The appellant filed a Notice of Appeal against the Second Direction and moved for a stay pending determination of the appeal. It was granted along with the relief that the two appeals be heard together. This Court also accepted that the Second Direction violated the law of functus officio. Once the First Direction was issued, the EAJ’s jurisdiction over the matter was exhausted. While the First Direction was under appeal, he had no authority to rescind and replace it with the Second Direction. The principle of functus officio addresses the harm at issue in these appeals, namely that a lower court must not interfere with the jurisdiction of an appellate court (Doucet-Boudreau v Nova Scotia (Minister of Education), [2003] 3 SCR 3). Courts do not have the power to amend an order except in limited circumstances that have no application in this case.

This Court should not determine the substantive issues raised in the First Direction and the Second Direction. An RFD to the supervising courts is the process mandated by the Implementation Orders for applications regarding the administration of the IRSSA. Where a hearing is required, the administrative judges determine the jurisdiction in which the hearing should be held. Where the issues will affect all jurisdictions, the hearing may be directed to any court supervising the IRSSA. There is nothing in the Court Administration Protocol of the IRRSA that permits the courts to initiate their own process. Instead, it is contemplated that it is the parties that bring RFDs to the courts. If the respondent has a concern about that conduct, there is nothing preventing it from bringing a RFD. Engaging in the RFD process would permit all parties to adduce evidence, make submissions, and to receive the direction of the court. The IRSSA, the Implementation Orders, and the Court Administration Protocol provide a detailed procedure regarding the adjudication of issues that arise in the administration of the IAP. That process must be respected. While the courts have a supervising role, it is one that must be guided by the IRSSA and the Implementation Orders. The supervising courts are not free to graft on their own processes to the mandated RFD process.

 

 

 

 

 

 

Bill C-262 Letter from Experts to Canada’s Honourable Senators

Wiyasiwewin Mikiwahp Native Law Centre

A letter, submitted by 101 various experts and academics in the fields of Indigenous, human rights, constitutional law and/or international law, urges Canada’s Honourable Senators for the swift proceeding of Bill C-262 before the current session of Parliament ends.

Summary of Bill C-262 Letter from Experts:

Bill C-262, formally titled, “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples” was passed on May 30, 2018, in the House of Commons. Indigenous peoples and individuals, leaders, and human rights experts hailed this historic event as a victory for the human rights of Indigenous peoples in Canada.

The letter, however, communicates the concern that misguided claims or apprehensions continue to be used by some Senators to justify opposition and slow the progress of the bill in the Senate. This piece of legislation does not create new rights. It establishes a process for the government, in full partnership with Indigenous peoples, to achieve implementation of the Declaration in Canadian law in the three following ways: 1) Bill C-262 affirms the Declaration as a universal international human rights instrument with application in Canadian law. This is consistent with the fact that the UN Declaration already has legal effect in Canada and can be used by Canadian courts and tribunals to interpret Canadian laws; 2) the Bill requires the government to work with Indigenous peoples to review existing laws and bring forward reforms to ensure their consistency with the Declaration and; 3) Bill C-262 creates a legislative framework for the federal government to collaborate with Indigenous peoples to establish a national action plan for the implementation of the Declaration. Bill C-262 has been referred to Committee, 11 months after its adoption by the House of Commons.

Below are the links to the English and French versions of Bill C-262 Letter from Experts.

English Version of Bill C-262 Letter from Experts:
EN_Bill C-262 Letter from Experts

French Version of Bill C-262 Letter from Experts:
FR_Bill C-262 Letter from Experts