Fontaine v Canada (AG), 2018 ONSC 5197

Wiyasiwewin Mikiwahp Native Law Centre

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”), and 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 Inc.; Ontario (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 the 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.

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

 

Corneau v AG of Québec, 2018 QCCA 1172

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The test set out in R v Powley for Métis rights requires that a Métis community’s distinct nature be sought out, but does not require that the underlying practices and traditions be distinct.

This case involved an application brought against Mr. Corneau, and other alleged offenders, for occupying sites on public lands without any property right, lease or occupancy permit contrary to s.54 of The Act Respecting the Lands in the Domain of the State (“the Act”). Mr. Courneau contested the application on the basis that he belongs to a Métis community which confers rights to occupy the alleged public lands. It was held at trial that Mr. Corneau did not meet the requirements of the test set out in R v Powley for Métis rights. Mr. Corneau has appealed the decision, calling into question the trial court’s assessment of: (i) the evidence following the identification of the historic Métis community; (ii) the existence of a modern community; (iii) the appellants’ membership in the modern community and (iv) the period of control. In the end, the Québec Court of Appeal (“the Court”) dismissed the appeals and ordered that Mr. Corneau abandon the sites and return the premises to their former condition.

The Court began by reviewing the R v Powley decision, which clarified the test for identifying a Métis community’s rights. It first began by observing that the term Métis is not a matter of genetics, but rather of culture and identity. As articulated by the Supreme Court of Canada (“SCC”), the term Métis “does not encompass all individuals with mixed Indian and European heritage; rather it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life and recognizable group identity”. Furthermore, a Métis community are “a group of Métis, with a distinctive collective identity, living together in the same geographic area.” The Court then identified the constitutionally protected Métis rights as those rights subsisting in Métis communities that emerged between first contact and the effective imposition of European control. The focus therefore is on rights that existed “post-contact”, for example after a particular Métis community arose, but also “pre-control”, or before it came under the effective control of European laws and customs.

The Court then reviewed the factual matrix as presented by the trial court. The trial court found the evidence adduced by the appellants to be insufficient to establish an identifiable historic Métis community that would allow mixed individuals to be distinguished from their biological authors. This was decided after consideration of the evidence presented by historians, genealogists and anthropologists. It was also the opinion of the trial judge that even if there was a historic community of Métis tied to the land in question, there was no modern community holding the right being claimed. Finally, in consideration of the personal circumstances of Mr. Corneau, the trial judge found the evidence of self-identification with a Métis community unconvincing. The trial court observed that: (1) Mr. Corneau’s self-identification occurred later in life and was driven by opportunism; (2) that his ancestral connection did not, on the balance of probabilities, belong to an historic Métis community; and that (3) the absence of a cultural tie between the Métis organizations and his ancestral Métis community suggest that there is not, on the balance of probabilities, sufficient evidence of the existence of the right claimed.

The Court then set out the standard of review as requiring a palpable and overriding error standard for questions of mixed fact and law. It noted that, as per R v Van der Peet, courts must not undervalue the evidence of Aboriginal claimants simply because there is no evidence conforming to the evidentiary standards of other areas of law, such as a private law torts case. It also cited Mitchell v MRN, which highlighted that while Aboriginal claims must still be established on the basis of persuasive evidence, their forms of evidence must also be afforded equal and due treatment.

In respect of issue (i) and (ii), the Court agreed with the trial court that there was no historic Métis community, but upheld the appellants’ contention that the trial court applied the test too strictly. The Court observed that the test, as applied by the trial court, takes for granted that the practise and traditions of the community in question must be distinct, while the SCC only required that the distinctive nature be sought out. Nonetheless, this error is not determinative, as it does not change the conclusion of the Court that there was no historic community holding rights to be claimed. Specifically, the Court agreed that the appellants’ expert witnesses failed to meaningfully question the evidence of historian Russel Bouchard. Evidence from Bouchard was relied on to build the claim that the individuals from mixed marriages between Euro-Canadians and Indians defended their diversity as a cultural and identity marker. The respondents, however, presented evidence suggesting that such marriages did not result in a distinct community, but rather integration into the already established Montagnais community and later into Euro Canada. In the end, the practices or traditions must also be proved. While the Court does not directly address the issues of whether there exists a modern Métis community, they are not required to as they have concluded that no historic community existed.

In respect of issue (iii), the Court held that the trial court erred in their comparison of the historic Métis community of Sault Ste Marie with the alleged historic Métis community of Domaine du Roy and Mingan Seignory. In particular, the Court held that the trial court’s strict application of the factors of density and proximity is inappropriate. As stated by the Court, “it is possible to imagine that members of a historic community could settle in several separate locations while forming a single regional unit.”  An historic community can be regional and nomadic.

In respect of issue (iv) the Court agreed with the trial court’s contention that control over the territory in question occurred between 1842 and 1850. Both the appellants and the respondents contest this finding. The appellants argued that the correct time period ought to be after 1856 when Aboriginal people were displaced following the creation of reserves, relying on primitive land surveys between 1843 and 1860, indicated in the installation of a municipal regime and administration of justice, to support this position. The Court found, however, that they failed to submit sufficient evidence to illustrate a palpable and overriding error on the part of the trial court.

The respondents argued that the trial court erred in analyzing the evidence based on the legal criterion for control. The Court dismissed this position on the basis that the expert evidence relied on by the respondents mis-categorized the Domaine du Roi territory as one governed by the seigneurial land grant system, under which control was established between 1733 and 1767. Under cross-examination it was revealed that no primary or secondary sources refer to Domaine du Roi as a secondary estate. Instead, the Domaine du Roi was preserved for the fur trade and no land grants were offered in respect of it and ended in 1842 when the government included a condition in a renewed lease of the Hudson’s Bay Company that the government could have the land surveyed and could settle colonists in any part of the Domaine suitable for agricultural colonization. Thus, the Court found that the evidence supported the approach taken by the trial court.

 

Director of Criminal and Penal Prosecutions v Michel Tremblay, 2018 Court of Québec

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

For a Métis claim of Aboriginal rights to succeed under s.35, there must be evidence, on a balance of probabilities, that a Métis community had existed that asserted sufficient control over the territory in question, prior to the imposition of European control.

Mr. Tremblay, asserted that he is Métis but faced multiple criminal charges relating to wildlife preservation, sustainable development, wildlife habitat and forests. The issue at hand is whether the provisions of the statues and regulations are not applicable to Mr. Tremblay as a result of his rights protected by s.35 of the Constitution Act, 1982. The Court held that Mr. Tremblay was guilty of the offences to which he is charged, as there was insufficient evidence to establish that a Metis community existed with sufficient control of the territory in the period in which Mr. Tremblay alleges.

Counsel for Mr. Tremblay argued that s.35 protected his rights as they pertain to hunting, fishing, trapping and gathering rights, as well as his right to take part in activities traditionally and reasonably incidental to the exercise of his rights under ss.35 (1) and (2). In their view, this constituted the exercise of Aboriginal rights to partake in activities for food, social purposes and in traditional Métis celebrations such as clearing impassable paths, modifying banks of watercourses so that they are reasonably accessible for young or elderly people, stocking fish in lakes as well as taking measures to keep them in certain watercourses by protecting and preserving peaceful and safe hunting practices by erecting temporary barriers.

Counsel for the Attorney General Quebec (AGQ) recognized that if criteria 2 and 6 set out in R v Powley were met, the evidence submitted would be sufficient to establish on the balance of probabilities that hunting, fishing and trapping for subsistence purposes, constituted the contemporary expression of traditional Métis practices. They further asserted that on the facts, Mr. Tremblay’s activities do not pertain to the traditional culture of a Métis community and cannot be considered incidental to contemporary practices of primary Aboriginal hunting, fishing and trapping rights. For clarity, criteria 2 from R v Powley is whether the claimant is a member of a contemporary Métis community, while criteria 6 is whether the practice is integral to the culture of the community.

R v Powley stated that rights enshrined and protected in ss.35 (1) and (2) are Aboriginal rights of Métis and Aboriginal communities. A Métis community consists of a group of Métis with distinctive collective identities. The Court of Québec made reference to the historical observations set out by counsel and accepted in R v Powley. This was reinforced at the Court of Appeal, which affirmed that prior to the assertion of sovereignty, there was a recognized separate Métis community in the area of Sault St. Marie. The Court also pointed to R v Willison, which set out that evidence of a settlement is not required for a Métis community to exist. Finally, reference was made to R v Van der Peet to elucidate the approach to be taken in hearing applications regarding the recognition of Métis rights. For Métis communities, the rights established cannot be rights that existed prior to contact but rather rights existing prior to the imposition of European Canadian control.

The expert evidence provided allowed the Court to make conclusions in respect of Métis ethnogenesis in the study region. This included the establishment and maintenance of a historic Métis community in the study region, the genealogy of Mr. Michael Tremblay, and Crown sovereignty and effective control. The ethnogenesis in the study region suggested that a distinct Métis community developed at the dawn of the nineteenth century amongst a group of mixed-race people with close and unique ties. It was noted that a historic Métis community had been established and existed. The Métis were largely represented in farming activities, the lumber industry and the fur trade, but they also worked as guides and day labourers. They participated in the traditional economy by way of hunting, fishing and trapping, music, gathering and the manufacture of maple syrup and sugar. The Métis also engaged in canoe building and guide activities along with attachment to Catholic rites and practices.

The Court found, however, that the evidence did not truly reveal that a group of mixed ancestry was geographically isolated in that study region. The evidence submitted regarding the marriages between mixed race people also failed to establish that there was a historical Métis community. Further evidence submitted suggested that there was uncertainty regarding the number of ancestors for the period of ethnogenesis proposed. It was further suggested that of these ancestors, five out of six did not share the ethnic criteria identified by an expert. The Court also found that there was insufficient evidence that this community had its own control. The evidence presented that, although the province of Ontario obtained control by way of the Public Lands Act,1853 and the Free Grant and Homestead Act, 1868, these Acts only had significant impact on the Métis lifestyle near the end of this period. Nonetheless, the Court found that the passing of the statutes and the opening of the regional prison in 1886 radically altered the way of life of Aboriginal and Métis people. After considering all evidence presented, the Court concluded that the evidence submitted for Mr. Tremblay was insufficient on the balance of probabilities to meet the criteria outlined in R v Powley and therefore is guilty of the offences to which he was charged under the Criminal Code.

 

UN Rules That Canada’s Indian Act Discriminates Against First Nations Women

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

UN International Covenant on Civil and Political Rights, Human Rights Committee, Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2020 / 2010. (View decision here)

This case involved a claim by Ms. Sharon McIvor, and her son Mr. Jacob Grismer (the authors) against the State of Canada for violation of their rights under articles 3 and 26, read in conjunction with article 27. On September 1985, Ms. McIvor applied for registration status for herself and her children under the Indian Act (“Act”), as Indian status under the Act confers significant tangible and intangible benefits. The Registrar for Indian and Northern Affairs Canada determined that she was entitled to registration under s.6(2) of the Act and not s.6(1). Although they are descendants of Mary Tom, a First Nations woman born in 1888, at birth Ms. McIvor was initially not eligible for Indian status, as the claim would be based on matrilineal descent. She filed a statutory appeal against the decision.

The British Columbia Supreme Court indicated that s.6 of the Indian Act discriminated on the grounds of sex and marital status between matrilineal and patrilineal descendants born prior to April, 1985 and against Indian women who had married non-Indian men. On appeal, The British Columbia Court of Appeal narrowed the declaration of the British Columbia Supreme Court, finding that s.6 of the 1985 Indian Act was discriminatory, but only to the extent that it grants individuals to who the double-mother rule applied greater rights than they would have had under the pre-1985 legislation. They only found discrimination to a small subset of descendants of male Indians. Leave to appeal was refused without reasons.

Following the passage of the Indian Act, and with the intention to eliminate sex discrimination, it was alleged by Canada that Ms. McIvor could now achieve full Indian status. She contended, however, that being ineligible for Indian status under s.6(1)(a), she still does not receive the full protection of Indian status. Under her s.6(1)(c) registration, she is only able to transmit partial status to her son Jacob and is unable to transmit Indian status to her grandchildren. In contrast, her brother is eligible for full s.6(1)(a) registration status and can transmit his full status to his children. As well, Mr. Grismer, having married a woman with no First Nations ancestry, does not have standing to pass status to his children.

The authors alleged that s.6 of the 1985 Indian Act violates article 26 and article 27 in conjunction with articles 2(1) and 3 of the Covenant (reproduced below for reference) in that it discriminates on grounds of sex against matrilineal descendants and Indian women born prior to April 17, 1985. As a result of the sex-based hierarchy of this status regime, McIvor expressed a sense of stigmatization amongst Indigenous communities from women who do not have s.6(1)(a) status. Mr. Grismer also expressed a sense of isolation from not being s.6(1)(a) eligible, as he is unable to participate fully in hunting and fishing activities.

In respect of article 27, as read in conjunction with articles 2(1) and 3, the authors argued that the capacity to transmit cultural identity is a key component of cultural identity itself. S.6 has the effect of denying female ancestors and their descendants the right to full enjoyment of their cultural identity on an equal basis between men and women, in violation of article 27, read along with articles 2(1) and 3 of the Covenant.  Finally, in respect of article 2(3)(a), the authors also argued that the State had failed to provide the authors with an effective remedy for the violation of their rights under articles 26 and 27 in conjunction with articles 2(1) and 3. The only effective remedy will be one which has eliminated the preference for male Indians and their patrilineal descent and confirms the entitlement of matrilineal descendants.

In response, Canada argued that in respect of articles 26, 2(1) and 3, that the Indian Act does not create classes of Indians. On the contrary, the paragraphs in section 6(1) of the 1985 Indian Act are essentially transitional provisions, indicating for persons born before 1985, and how eligibility moves from the 1951 Indian Act registration regime to the 1985 Act, and now the 2011 criteria. Therefore, Ms. McIvor is eligible for status under the criteria of s.6(1)(c), her son is eligible based on the criteria under s.6(1)(c.1) and his children are eligible under the criteria set out in s.6(2). All individuals with status are treated the same in respect of legal rights. According to Canada, what the authors seek would potentially involve descendants of many generations removed from the female ancestor who initially suffered discrimination based on sex. The State party is not obligated to rectify discriminatory Acts that pre-dated the coming into force of the Covenant. Moreover, as of November 29, 2017, a new Bill S-3 extends eligibility for status to all descendants who have lost status because of their marriage to a non-Indian man. These provisions are subject to a delayed coming into force clause allowing for consultation with First Nations and other Indigenous groups.

Ms. McIvor and Mr. Grismer contend that although the 1985 Act was amended in 2011, it still excludes from eligibility for registration status Indigenous women and their descendants, who otherwise would be entitled to register if sex discrimination were completely eradicated from the scheme. They also contend that there is more than one Indian status, as s.6(1)(a) status is superior and comes with greater intangible benefits than s.6(1)(c) or s.6(2).

In respect of article 27, Canada argued that the authors have not adequately claimed or substantiated a violation of their right to enjoy their culture. Specifically, they have failed to substantiate any violation of their right to enjoy the particular culture of their Indigenous group. Indian status is but one facet of the identity for those that are eligible. The legislated scheme does not and cannot confer personal dignity. The authors, however, argued that they have sufficiently demonstrated a right to equal exercise and enjoyment of their culture, in particular their right to the full enjoyment of their Indigenous cultural identity and that the effect of the law is to exclude the authors from their right to transmit their culture along matrilineal lines.

The Committee found this issue admissible, as the essence of the authors’ claim rests in the alleged discrimination inherent to the eligibility criteria in s.6 of the Indian Act, despite the fact that the loss of status occurred before the entry into force of the Covenant. Additionally, while the alleged harm is argued not to flow from the State laws, the Committee accepted the authors’ contention that the discriminatory effects arose out of the State’s regulation of Indian registration. Other allegations of the State are dismissed with reference to the Committee’s prior jurisprudence.

In considering the merits of the decisions, the Committee made several notes from the arguments above. Of importance are the notes of (1) the authors’ argument that as a consequence of discrimination based on sex in the Indian Act, they have been stigmatized within their community and denied full opportunity to enjoy their culture with the other members of their Indigenous group and that (2) the authors’ argument that the State’s century-old unilateral defining of who is an Indian has led Indigenous people to view legal entitlement to registration status as confirmation or validation of their “Indian-ness”. The Committee further recalled the General comment No. 23, that article 27 establishes and recognizes a right which is conferred on individuals belonging to Indigenous groups, which is distinct from the other rights all persons are entitled to under the Covenant.

In light of these arguments, and from weighing them against the principles articulated above, the Committee found that under article 5(4) of the Optional Protocol, that the facts disclose a violation by the State party of the authors’ rights under articles 3 and 26. Canada is therefore under an obligation to provide the authors with an effective remedy.

See here for a copy of the UN Covenant on Civil and Political Rights

Article 26All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 27: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Article 2: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 3: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

 

Teslin Tlingit Council v Canada (AG), 2019 YKSC 3

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Canada has an obligation to negotiate with parties who have withdrawn from Collaborative Agreements and an obligation to negotiate in accordance with the provisions setting out accommodations for demographic changes in Self-Governance Agreements.

This case involved an application to the Yukon Supreme Court by the Teslin Tlingit Council (“TTC”) seeking six declarations against the Government of Canada in relation to negotiations pertaining to two agreements. The Final Agreement (“FA”) and the Self Governance Agreement (“SGA”) were entered into in 1993 between the TTC and the Government of Canada, and follows the Yukon-wide Umbrella Final Agreement. Rather than address each declaration, the Court elected to frame the legal issue as to whether Canada had a legally binding obligation to negotiate a Self-Government Financial Transfer Agreement with TTC, and taken into account, funding based on the Citizens of TTC in accordance with the terms of the FA and SGA. The Court held that Canada had a legal obligation to negotiate a self-government Financing Transfer Agreement with the TTC pursuant to the FA and s.16.1 and 16.3 of the SGA, including funding based on TTC citizenship. It was further held that Canada had failed to uphold such an obligation and ordered declaratory relief.

It was noted that the SGA was provided based on the number of Status Indians without accounting for the increase in the number of persons that must be accounted for. This continued to be the policy position of the government through multiple rounds of negotiations leading up to the expiry of the 2010 Financial Transfer Agreement.  In 2015, with the election of the new government Canada, a new policy was released entitled “Canada’s Fiscal Approach to Self-Government Arrangements” (“2015 Fiscal Approach”). The 2015 Fiscal Approach was the first time that Canada’s methods and approaches to FTAs were made transparent to the public and the parties. This new policy made no changes to the calculus of the Aboriginal population.

In 2016, the Minister of Indigenous and Northern Affairs began a Collaborative Process in response to a recommendation from a First Nation coalition. The TTC withdrew from the Collaborative Process in the fall of 2016 in order to focus on meaningful implementation of the FA and SGA, after which Canada effectively halted negotiations with the TTC pending the completion of the Collaborative Process. The Court concluded that “since their withdrawal, Canada has failed to negotiate and address the major problems with TTC.”

In the Court’s view, the failure to negotiate resulted from a misinterpretation of Canada’s obligations under the FA and SGA. While s.24.12.1 of the FA does indicate that agreements are not to be construed as treaty rights, narrowly construing the obligations under s.16.1 and s.16.3 as non-constitutional rights downplays the constitutional obligations flowing from “Chapter 3 Eligibility and Enrollment” of the FA. This chapter indicated that eligibility for TTC services will be based on blood quantum and not on registration under the Indian Act. Even though the FA does not require Canada to fund every Citizen of TTC, provisions in the SGA do commit Canada to negotiate demographic factors of TTC in order to provide resources enabling public services to be reasonably comparable to those prevailing in the Yukon and at reasonably comparable levels of taxation.

Citing Nacho Nyak Dun and Little Salmon, as precedents for the importance of modern treaties for the project of reconciliation, the Court concluded that Canada did have a legal obligation to negotiate with the TTC and to provide funding based on citizenship. It was added that s.16.3 of the SGA requires a polycentric approach to negotiation and to consider the competing factors at play, and that: (1) there is utility in granting the declaration; (2) that there is a cognizable threat to a legal interest; and (3) that there is a long-standing preference for negotiated settlement. The Court granted declaratory relief and rejected Canada’s submissions that the declaration is inconsistent with reconciliation and the nation relationship, holding that the declaration promotes reconciliation by ensuring Canada adjusts policy on a timely basis.

The Children’s Aid Society of Algoma v CA, 2018 ONCJ 592

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Relief granted for an amendment to the identification findings of a First Nation child and his band.

The Children’s Aid Society of Algoma (“the Society”) brought a motion seeking a determination under s.90(2)(b) and s.2(4) of the recent Child, Youth and Family Services Act (“CYFSA”) of whether L.A., who is one years old, is a First Nation child, and if so, that the Batchewana First Nation be added as a party Respondent in this child protection proceeding. Also sought in the relief was a determination that the Batchewana band is the child’s band. Although unusual to make such determinations through a formal motion claim, there is merit to this becoming common practice. The original identification motion did not identify L.A. as a First Nation, Inuit or Métis child based on the evidence in the file at the time. In this re-opened motion, there was additional evidence filed by the Society that included an affidavit of a band representative of Batchewana First Nation that was sworn almost 25 years ago. It was for a protection proceeding in which C.P., the biological father of L.A. in this present case, was the subject child. She stated that “[t]he child C.P. is eligible for registration with [the] Batchewana First Nation”. The Society served the band representative with its motion seeking identification findings. No evidence was filed by the band representative, nor were any submissions made by her on the issue of the identification of the child.

Identification findings under the previous Child and Family Services Act (“CFSA”) were rarely, if ever, done by way of a motion. Often, the findings, especially on Status were done summarily, with no sworn, or very thin, evidence. If no band representative was named as a party in the application, the band representative would have no standing to make any comment. Such a finding, if done by motion, would at least have some standards of evidence and might afford any band an opportunity to be heard prior to a finding being made. While there are now many possible ways by which a child protection court can determine whether a child is a First Nation child, under s.1 of O. Reg. 155/18 this is not the end of the Court’s duty. If the Court determines the child to be a First Nation child, it must then move on to determine the child’s “bands”. The plural is used because it is possible that the child may have more than one band with different membership criterion. To end the determination process once only one band has been identified may be a mistake as there might be benefits from having several bands, including more options in the child protection proceeding with several band representatives.

The first determination is whether a court can ascertain the views of the child on which band(s) the child identifies itself. If the child’s views cannot be ascertained, it is still a matter of whatever band(s) a parent of the child indicates the child identifies with. This information from a parent would likely be ‘hearsay’ that the court is directed by s.21 of O. Reg. 156/18 to accept without question. However, in any child protection case, a child may have multiple ‘statutory’ parents, including some not related by blood, and each of them is entitled to indicate one or more bands with which the child identifies. This rule of interpreting the child’s band does not seem to require a parent to justify his or her indication with any evidence or information. All that is required is that person’s indication of the band(s) with which the child identifies. On the other hand, a parent may fail to make any indication at all, which is not uncommon, as in the present case. Courts normally act on evidence but none seems to be required on this issue.

Another significant provision that is relevant to this motion is s.79(1) of the CYFSA which deals with who are statutory parties in a proceeding. This is important because it adds the child’s bands as formal respondent parties in the child protection, or Status review, application before the court, where an identification finding is made that a child is a First Nation child. From a band point of view, it provides all of the rights that any party has in the application and it permits the child’s band(s) to make an important contribution. It also enables the band representative to advocate its own interests in the proceeding which may or may not coincide with those of the child or another party. The band representative, however, is a party from the outset only if named as a party by the applicant in the application, which is usually a society. This requires a society to anticipate which band(s) should be named as parties. The recent CYFSA has introduced a much more complex process for identifying a First Nation child and its band(s). In this case, the Society has brought a motion seeking judicial identification of the child not only as a First Nation child, but also a determination of the child’s band if so identified. No band representative is named as a party in this child protection case. If this is going to become the status quo procedurally, then a band will have no say in whether a child is a First Nation child, or which is the child’s band. In the Court’s view, it would be better by far to have a band or bands involved in the identification determination under s.90(2) CYFSA. This is easily done by a motion.

As for the determination of whether L.A. is a First Nation child, the Court has to look for any information that a relative of L.A. identifies as a First Nation person. There is such information. The Society affidavit provides the information that the father’s father, that is the child L.A.’s paternal grandfather, was not only a Status Indian and had an Indian Status card, but was also a member of the Batchewana band. Indian Status and Batchewana band membership of the child’s relative is sufficient to find under O. Reg 155/18 s.1(c)(i) that L.A. is a First Nation child and his band is the Batchewana First Nation band. A band representative shall be added as a party Respondent in the child protection application. In the event that this finding is incorrect, the Court has recourse to subclause (ii) of O. Reg 155/18 s.1. which directs the Court to look for any information that demonstrates a “connection” between a child and a band. The characteristics of the connection are not described, therefore the Court has chosen a broader approach that seems to be more in accordance with the spirit of the recent CYFSA. The band or the First Nation still has the option of not participating actively in the case or with the child.

 

 

The Children’s Aid Society of Brant v SG

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Applicant’s motion for summary judgement denied. A Children’s Aid Society did not meet its onus for evidence in the pursuit of an order to place a child in extended care with no access.

The Applicant, the Children’s Aid Society of Brant (“The Society”), was seeking preliminary findings, protection findings and an order of disposition placing the child, M. G-D. (“M.”) born in 2017 and aged one year a the time of this application, in extended care with no access. The motion for summary judgment has been denied. There is ample evidence that M. is a medically fragile child. He has been diagnosed with a serious congenital heart condition known as ventricular septal defect as well as double outlet right ventricular transposition of the arteries, pulmonary stenosis and pulmonary atresia. He required the administration of oxygen at birth, has had heart surgery in June 2018 and will require further surgery in the future. M. must attend Sick Children’s Hospital in Toronto on a regular basis for cardiac follow-up, checks of his oxygen and saturation levels as well as close monitoring of his weight. There was additional evidence that demonstrated that when M. becomes ill he can become very ill very quickly and thereby requires timely medical attention.

The respondent father indicated that he identifies as Ojibway but does not have a “status card” and that the child does not have status as First Nations. The Society did not, despite court instruction to do so, clearly assess whether the child was First Nation, and if so whether there was an Indigenous community that was a party. It was apparent during numerous discussions and stand-downs that occurred, that no one understood precisely what questions needed to be asked or what the test was, let alone how to apply the information obtained to the legal test. In a child protection proceeding it is a vital question and a determination that the Court is statutorily obligated to make. M. is a young child who has been the subject of an application seeking extended care without access and has been in the Society’s care his entire life. His right to an orderly and expeditious hearing of the pertinent issues should never have been compromised by the lack of follow through on legislatively prescribed requirements. Section 90(2) of the Child Youth and Family Services Act reads as follows: “As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine, (a) the child’s name and age; (b) whether the child is a First Nations, Inuk or Métis child and, if so, the child’s bands and First Nations, Inuit or Métis communities; and (c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.”

The early determination of whether a child is First Nation and the appropriate Indigenous community is a particular priority for a number of reasons. First, it triggers an obligation by the Society to meet the child’s cultural needs. Second, if there is an identifiable Indigenous community, that community is a party to the proceeding and service is required. Child protection proceedings are conducted in the adversarial, not the inquisitorial style. The Court thus must rely on the parties to provide the requisite evidence in order to determine the issues. In the Court’s view, the Society’s assertion that its worker was only “informed” of the father’s status through service of his affidavit on November 1, 2018, does not assist it. Parents caught up in child protection proceedings are often stressed and vulnerable. It is not reasonable to assume that the parents will understand the need to self-identify at an early stage. Even where the parents have counsel, counsel’s primary obligation is to his or her client.  When a child is in Society care, the Society is that child’s guardian. The Society, therefore, has an obligation to that child to ensure these inquiries are made early and proactively.

These events have also been a “wake-up call” to this Court. Although the Court is dependent on parties providing evidence, the Court should be extremely mindful of its supervisory role to ensure that findings are, indeed, addressed “as soon as practicable”. In 2015, the Truth and Reconciliation Commission released a Call to Action under the heading Child Protection. It called upon the federal, provincial, territorial and Aboriginal government to commit to reducing the number of Aboriginal children in care. To that end, it asks the governments inter alia to “[e]nsure that social workers and others who conduct child welfare investigations are properly educated and trained about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing.” It also implored governments to establish as an important priority a requirement that placements of Aboriginal children in temporary and permanent care be culturally appropriate. Neither of these steps can be effected if the Society is not diligent in ensuring early identification of First Nation children and their bands or Indigenous communities.

Canada (Canadian Human Rights Commission) v Canada (AG), 2018 SCC 31

Appeal dismissed. Tribunal decisions stand that the complaints were a direct attack on legislation. Legislation not a service under the Canadian Human Rights Act.

This appeal concerns several complaints alleging that Indian and Northern Affairs Canada (“INAC”) engaged in a discriminatory practice in the provision of services contrary to Section 5 of the Canadian Human Rights Act (“CHRA”). This section prohibits, among other things, the making of discriminatory distinctions in the provision of services customarily available to the general public. The Indian Act, since its enactment in 1876, has governed the recognition of an individual’s status as an “Indian”. The Indian Act has a registration system under which individuals qualify for this status on the basis of an exhaustive list of eligibility criteria. It is incontrovertible that status confers both tangible and intangible benefits. INAC denied a form of registration under the Indian Act that the complainants would have been entitled to if past discriminatory policies, now repealed, had not been enacted.

In two separate decisions, Matson v Canada (Indian and Northern Affairs), 2013 CHRT 13 and Andrews v Canada (Indian and Northern Affairs), 2013 CHRT 21 (“Andrews”), the Canadian Human Rights Tribunal (“Tribunal”) determined that the complaints were a direct attack on the Indian Act. On the basis that legislation is not a service under the CHRA, it dismissed the complaints. On judicial review, both the Federal Court ([2015] 3 CNLR 1) and the Federal Court of Appeal ([2016] 4 CNLR 1), found that the Tribunal decisions were reasonable and should be upheld. Two issues were before this Court: (1) whether deference is owed to a human rights tribunal interpreting its home statute and (2) whether the Tribunal’s decisions dismissing the complaints as direct attacks on legislation were reasonable.

On the first issue, where an administrative body interprets its home statute, there is a well-established presumption that the reasonableness standard applies. In applying the standard of review analysis, there is no principled difference between a human rights tribunal and any other decision maker interpreting its home statute. Where an administrative body interprets its home statute, the reasonableness standard applies Dunsmuir v New Brunswick, 2008 SCC 9 (“Dunsmuir”). In both of its decisions, the Tribunal was called upon to characterize the complaints before it and ascertain whether a discriminatory practice had been made out under the CHRA. This falls squarely within the presumption of deference. The Tribunal clearly had the authority to hear a complaint about a discriminatory practice, and the question of what falls within the meaning of “services” is no more exceptional than questions previously found by the Court not to be true questions of jurisdiction.

A contextual analysis would not rebut the presumption in this case. Where the presumption of reasonableness applies, the contextual approach should be applied sparingly in order to avoid uncertainty and endless litigation concerning the standard of review analysis. The presumption of reasonableness was intended to prevent litigants from undertaking a full standard of review analysis in every case. This Court may eventually find it necessary to revisit the standard of review framework. However, dissatisfaction with the current state of the law is no reason to ignore the precedents following Dunsmuir. Where a contextual analysis may be justified to rebut the presumption, it need not be a long and detailed one. Changes to “foundational legal tests” are not clear indicators of legislative intent, and do not warrant the application of the contextual approach or, by extension, correctness review. Nor does the absence of a privative clause, the fact that other administrative tribunals may consider the CHRA, the potential for conflicting lines of authority, or the nature of the question at issue and the purpose of the Tribunal.

On the second issue, the adjudicators reasonably concluded that the complaints before them were properly characterized as direct attacks on legislation, and that legislation in general did not fall within the meaning of “services”. Although human rights tribunals have taken various approaches to making a distinction between administrative services and legislation, this is a question of mixed fact and law squarely within their expertise, and they are best situated to develop an approach to making such distinctions.

The adjudicator in Andrews noted that the sui generis nature of Parliament’s power to legislate is inconsistent with the characterization of law-making as a public service and that law-making does not have the transitive connotation necessary to identify a service customarily offered to the public. Parliament is not a service provider and was not providing a service when it enacted the registration provisions of the Indian Act. Law-making is unlike any of the other terms listed in s 5 as it does not resemble a good, facility or accommodation. It is sui generis in its nature. This is confirmed by the powers, privileges and immunities that Parliament and the Legislatures possess to ensure their proper functioning, which are rooted in the Constitution. The dignity, integrity and efficient functioning of the Legislature is preserved through parliamentary privilege which, once established, is afforded constitutional status and is immune from review. The disposition of this appeal, however, says nothing as to whether the Indian Act infringes the rights of the complainants under s 15 of the Charter. In this regard, there have been two successful challenges to the Indian Act registration provisions, both of which have prompted legislative reform (Descheneaux v Canada (Attorney General) [2016] 2 CNLR 175 (QCCS); McIvor v Canada (Indian and Northern Affairs, Registrar), [2009] 2 CNLR 236 (BCCA).

Furthermore, Parliament can be distinguished from the administrative decision makers that operate under legislative authority. These individuals and statutory bodies, which include the Registrar, may be “service providers”, or entities that provide services customarily available to the general public. If they use their statutory discretion in a manner that effectively denies access to a service or makes an adverse differentiation on the basis of a prohibited ground, s 5 will be engaged. But, when their job is simply to apply legislated criteria, the challenge is not to the provision of services, but to the legislation itself (Public Service Alliance of Canada v Canada Revenue Agency, 2012 FCA 7). The complaints did not impugn the means by which the Registrar had processed their applications, but substantively targeted the eligibility criteria that the Registrar was required to apply. Both Tribunal decisions stand on their own merits.

A Summary of the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples

This document provides a summary of the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples (the Directive).

The Directive was written by Jody Wilson-Raybould, the former Attorney General of Canada, in response to her mandate letter from Prime Minister Justin Trudeau. It outlines a series of litigation guidelines instructing Crown counsel as to how the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples (the Principles) must be applied in civil litigation involving Indigenous peoples.

The former Attorney General articulates that the guidelines are intended to reflect a significant shift in Crown-Indigenous relations. In particular, the Directive recognizes the limited ability of litigation to achieve the sort of reconciliation and renewal required in Crown-Indigenous relationships. The former Attorney General recognized that Indigenous peoples are entitled to select their own forum to resolve legal issues while also reiterating that where litigation is important, the guidelines should direct the Government’s positions and strategies.

The former Attorney General went on to outline that the Directive applies to section 35 of the Constitution Act, 1982, which entrenches Aboriginal and Treaty rights, as well as other Crown obligations towards Indigenous peoples. It is intended to animate the advice provided by departments and Cabinet towards the goal of reconciliation with Indigenous peoples, which is the fundamental purpose of section 35 of the Constitution. Importantly, the Directive indicates that the honour of the Crown is reflected not just in the substance of positions taken by the Crown in litigation, but also in how those positions are expressed. This broader goal is grounded in four main objectives: (1) advancing reconciliation; (2) recognizing rights; (3) upholding the honour of the Crown; and (4) respecting and advancing Indigenous self-determination and self-governance.

The Litigation Guidelines are as follows:

Litigation Guideline #1 – Counsel must understand the Principles and apply them throughout a file’s lifespan.

Counsel must seek to understand and apply Indigenous perspectives, recognizing the diversity of Indigenous perspectives and the rights underlying these varied relationships.

Litigation Guideline #2 – Litigation strategy must reflect a whole-of-government approach.

Principle 3 requires the Government to act with honour, integrity, good faith and fairness in all dealings with Indigenous peoples. To this end, counsel must endeavour to engage in discussions between Indigenous peoples and the departments and agencies about the way in which litigation might affect their relationship. This guideline calls for litigation strategies that are firmly rooted in the policies of the Crown and advocates awareness of government-wide implications of judicial decisions or settlements. This will necessitate broad consultation from government actors.

Litigation Guideline #3 – Early and continuous engagement with legal services counsel and client departments is necessary to seek to avoid litigation.

In order for conflict and litigation to become the exception and not the rule, counsel must engage with client departments and agencies as soon as they become aware of a conflict that may result in litigation, and endeavour to develop coordinated approaches that aim to resolve disputes without litigation.

Litigation Guideline #4: Counsel should vigorously pursue all appropriate forms of resolution throughout the litigation process.

The primary goal of counsel must be to resolve issues, using the court process as a forum of last resort. Forms of resolution such as alternative dispute resolution processes (such as negotiations and mediations) must be considered including the invocation of Indigenous legal traditions or other traditional Indigenous approaches. Consideration must also be given to creative solutions with other department counsel and other government departments or agencies.

Litigation Guideline #5: Recognizing Aboriginal rights advances reconciliation.

This guideline recognizes that the Principles necessitate a change in the interpretation and governing of Aboriginal rights. It specifically points to Principles 1 and 2, which call on the Government of Canada to ensure its dealing with Indigenous peoples are based on the recognition and implementation of the right to self-determination and state that reconciliation requires hard work, changes in perspectives and action, compromise, and good faith. It also specifically points to the need to recognize Aboriginal rights, including Aboriginal title, wherever these can be recognized. Litigation counsel is advised to avoid taking positions or adding parties to litigation that undermine the ability of Indigenous groups to resolve disputes amongst themselves.

Litigation Guideline #6: Positions must be thoroughly vetted, and counsel should not advise client departments and agencies to pursue weak legal positions.

Counsel should resolve differences of opinion on available arguments and the strength of legal positions through discussion. Where discussion fails, consultation and approval must be done in an appropriate manner.

Litigation Guideline #7: Counsel must seek to simplify and expedite the litigation as much as possible.

Counsel must ensure that litigation is dealt with promptly and consider resource imbalances between parties.

Litigation Guideline #8: All communication and submissions must be regarded as an important tool for pursuing reconciliation.

This guideline emphasizes the role of written and oral submissions as an instrument of communication between the parties, the Attorney General, Indigenous peoples, the judicial system and the public. In these pleadings, efforts must be made to advance reconciliation through the application of the Principles.

Litigation Guideline #9: Counsel must use respectful and clear language in their written work.

The Attorney General is expected to be a model litigant, upholding the expectation and maintaining high standards of civility and advocacy in their communication with the courts, Indigenous peoples or their counsel.

Litigation Guideline #10: Legal terminology must be consistent with constitutional and statutory language.

Counsel should abide by the specific terms used in the Constitution, by Parliament, and by the legislatures relating to Indigenous peoples, including the term Aboriginal as defined by section 35 of the Constitution Act, 1982, the term “Indian” as it appears in subsection 91(24) of the Constitution Act, 1867, and the term First Nation in reference to the First Nations Land Management Act, S.C.

Litigation Guideline #11: Overviews must be used to concisely state Canada’s position and narrow the issues.

An overview of Canada’s position, whether in pleadings or in factums, is an important communicative tool. The overview must be used to plainly explain Canada’s position, outlining what is and what is not an issue.

Litigation Guideline #12: To narrow the scope of litigation, admissions ought to be made, where possible.

Admissions of facts that support claims of historical harm should be acknowledged, with approval from the client and Assistant Deputy Attorney General. In pleadings, facts that are known to support the statements in the Indigenous party’s pleading and that may advance reconciliation should be explicitly stated and not just admitted where appropriate. For example, instead of only listing those paragraphs with such facts in a generic statement of admission, counsel should affirmatively plead those facts:

In response to paragraph x of the statement of claim, since at least the date of contact, the plaintiffs and their ancestors have lived at various sites in the vicinity of the identified area.

Litigation Guideline #13: Denials must be reviewed throughout the litigation process.

Denials made at early stages of litigation, when the facts may be unknown and when it would be imprudent to admit too much, must be withdrawn if and when it becomes clear that such denials are inconsistent with the available evidence.

Litigation Guideline #14: Limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence.

Long-standing federal positions such as extinguishment, surrender and abandonment are discouraged by the Principles. These defences should only be pleaded where there is a principled basis and evidence to support to the defence. Moreover, where litigation has been long delayed, defences such as laches and acquiescence are preferable to limitation defences.

Litigation Guideline #15: A large and liberal approach should be taken to the question of who is the proper rights holder.

This guideline speaks to the right of Indigenous peoples and nations to define for themselves who the rights-bearing collective is. Canada should not object to the entitlement of a group to bring litigation when rights are asserted on behalf of larger entities where no conflicting interests exist.

Litigation Guideline #16: Where litigation involves Federal and Provincial jurisdiction, counsel should seek to ensure that the litigation focuses as much as possible on the substance of the complaint.

Litigation Guideline #17: Oral history evidence should be a matter of weight, not admissibility.

Litigation Guideline #18: Decisions on judicial reviews and appeals should be subject to full consultation within government and be limited to important questions.

Litigation Guideline #19: Intervention should be used to pursue important questions of principle.

This guideline indicates that intervention requires consideration of whether the Attorney General’s intervention can assist the course through the provision of legal or constitutional perspective not addressed by the parties to the dispute.

Litigation Guideline #20: All files must be reviewed to determine what lessons can be learned about how the Principles can best be applied in litigation.

The final guideline suggests a review process that will enable counsel and the client department to learn from each litigation case by reflecting on how similar litigation cases can be avoided in the future.

For more information on the Principles see: Principles respecting the Government of Canada’s relationship with Indigenous Peoples.

For more information on the Directive see: The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples.

Editor’s Note: Professor Larry Chartrand of the University of Ottawa and former Director of the Wiyasiwewin Mikiwahp Native Law Centre, contributed his thoughts and expertise that assisted the improvement of the Directive.