R v Desautel, 2019 BCCA 151

Appeal dismissed. The Respondent is not prevented from claiming an Aboriginal right to hunt in British Columbia pursuant to s 35 even though he resides in the United States of America.

Native Law Centre Case Watch

Richard Desautel was charged under the Wildlife Act after hunting an elk without a license in the Arrow Lakes area of British Columbia. He admitted the actus reus but asserted that he has a s 35 Aboriginal right to hunt in the territory despite being a citizen of the United States of America [“USA”]. Mr. Desautel has never resided in British Columbia but is a member of the Lakes Tribe of the Colville Confederated Tribes in Washington State. His Sinixt ancestors had occupied territory above and below the 49th parallel, including the area in which he was hunting. At the time of contact with Europeans, they hunted, fished, and gathered throughout their territory.

Does the meaning of the phrase “the Aboriginal peoples of Canada” in s 35(1) of the Constitution Act, 1982 include only Aboriginal peoples who are resident or citizens of Canada, or also Aboriginal peoples whose ancestors occupied territory that became Canada? S 35 is directed towards the reconciliation of pre-existing Indigenous societies with the assertion of Crown sovereignty. A practice, custom, or tradition that is central and significant to the distinctive culture of an Indigenous society pre-contact that has not been voluntarily surrendered, abandoned, or extinguished, may be exercised by Indigenous members of modern collectives if they can establish that: 1) the modern collective is descended from the historic collective that exercised the practice, custom or tradition in that territory; and 2) there has been continuity between the practice of the modern collective with the practice of the historic collective pre-contact (R v Van der Peet, [1996] 4 CNLR 177 [“Van der Peet”]).

S 35(1) provides the constitutional framework to acknowledge the fact that Aboriginals lived on the land in distinctive societies, with their own practices, traditions and culture and to reconcile this with the sovereignty of the Crown. The burden of proof was on Mr. Desautel to establish the Aboriginal right claimed and a prima facie infringement of that right (R v Sparrow, [1990] 3 CNLR 160 [“Sparrow”]). The meaning and scope of s 35(1) is derived from the general principles of constitutional interpretation relating to [A]boriginal rights, and the purposes behind the constitutional provision itself. Sparrow also requires that s 35(1) be construed in a purposive way and that the words in s 35(1) be afforded a generous, liberal interpretation. Further, in Van der Peet it was instructed that the courts take into account the perspective of the Aboriginal peoples claiming the right and any doubt or ambiguity as to what falls within the scope of s 35 must be resolved in their favour. Applying the Van der Peet test, the concept of continuity must have a necessary connection between the historic collective and the modern-day community. Therefore, claimants who are resident or citizens of the USA can be “Aboriginal peoples of Canada” where they can establish the requirements set out in Van der Peet.

Courts adjudicating Aboriginal rights claims must be sensitive to the Aboriginal perspective, but also aware that Aboriginal rights exist within the general legal system of Canada. The time period integral to the Aboriginal community claiming the right is the period prior to contact. Where an Aboriginal community can demonstrate that a particular practice, custom or tradition has continuity with those of pre-contact times, that community will have demonstrated that the practice, custom or tradition is an Aboriginal right for the purposes of s 35(1). The concept of continuity is the means by which a “frozen rights” approach to s 35(1) will be avoided. Continuity does not require evidence of an unbroken chain of continuity. Aboriginal rights are constitutional rights, but that does not negate the central fact that the interests that the rights are intended to protect, relate to the specific history of the group claiming the right. Aboriginal rights are not general and universal as their scope and content must be determined on a case-by-case basis. The existence of the right will be specific to each Aboriginal community.

Mr. Desautel’s right to hunt in the traditional territory of his ancestors in that geographical area were never voluntarily surrendered, abandoned or extinguished. This Court will not modify the Van der Peet test to add a geographic requirement that would prevent members of Indigenous communities, who may have been displaced, from the opportunity of establishing their Aboriginal rights in areas their ancestors had occupied pre-contact. This matter is distinguishable from R v Powley, [2003] 4 CNLR 321 [“Powley”] where in order to accommodate the unique history of the Métis communities that evolved post-contact, the time period analysis in Van der Peet was focused on pre-European control. Powley requires an Aboriginal rights claimant to be a member of a contemporary community in the geographic area where the right was exercised. It is also distinguished from R v Bernard, [2018] 1 CNLR 79, where a Mi’kmaq member of the Sipekne’katik First Nation in New Brunswick was charged with contravening the Fish and Wildlife Act, for hunting deer. The trial judge found Mr. Bernard had failed to establish that he was a member of a modern collective descended from the original rights-bearing Mi’kmaq community that hunted at the mouth of the St. John River. Unlike Mr. Bernard, Mr. Desautel has established a connection to the historic community that hunted in the traditional territory where the claimed Aboriginal right was exercised.

It has been determined that there is continuity of the practice of hunting in the area where Mr. Desautel shot the elk. Members of the Lakes Tribe are the modern-day successor collective of the Sinixt peoples and Mr. Desautel was exercising his lawful Aboriginal right to hunt for ceremonial purposes in the traditional territory of his Sinixt ancestors, pursuant to s 35(1). The issues raised by the Crown regarding the Lakes Tribe’s legal status in the USA, or the extent of any potential duty to consult and accommodate, raises ancillary questions that, in the Court’s view, are not material to the central issue.

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.

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.

Ahousaht Indian Band and Nation v Canada (AG), 2018 BCSC 633

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Declaratory relief allowed for Aboriginal right to right-based “all species” commercial fishery.

The plaintiffs are five First Nations whose territories are located on a strip of varying widths along the West Coast of Vancouver Island and are part of the fourteen Nuu-chah-nulth group of Nations. This trial took place in two stages, which was unanticipated by either party when it began. The first part of the trial was heard by a different judge who issued reasons in Ahousaht Indian Band and Nation v Canada (AG), [2010] 1 CNLR 1 (BCSC), as well as declarations. There were originally eleven plaintiffs in this action. However, the initial Statement of Claim claimed Aboriginal title on behalf of each of the eleven Nations, as well as Aboriginal rights. Because some of the title claims overlapped, it was ordered that the plaintiffs choose one or more Nations whose claims to title did not overlap, and the claims of those plaintiffs would proceed in this action. The present five plaintiffs proceeded to trial with their claims but the remaining claims have yet to be tried.

The plaintiffs asserted an Aboriginal right to harvest fisheries resources for a variety of purposes including for food, social and ceremonial purposes, commercial purposes, and so on. It was declared in 2009 that the plaintiffs have an Aboriginal right in these terms: “to fish for any species of fish within their Fishing Territories and to sell that fish”. However, the Fishing Territories were limited to a nine-mile strip or Court Defined Area (“CDA”). It was also declared that the entire fisheries management regime, consisting of legislation, regulations, and policies, constituted a prima facie infringement of that right. The trial was then adjourned to allow the parties to negotiate a fishery based on this declaration. In the event the negotiations (“Negotiations”) were unsuccessful, they could return to court on the issue of whether Canada could justify its legislative, regulatory and policy regimes as they apply to the plaintiffs’ Aboriginal fishery, named T’aaq-wiihak, which means “permission to fish”.

The history of this action is complex and interwoven with another action on Aboriginal fishing rights (Lax Kw’alaams Indian Band v Canada (AG), [2011] 4 CNLR 346 (SCC)) (“Lax Kw’alaams”), which proceeded slightly ahead of this action, and this Supreme Court of Canada (“SCC”) decision has influenced the course of the present action. After the 2009 judgment, the Negotiations began in 2010, but soon led to a reactivation of the litigation. The Negotiations have continued and are ongoing. Meanwhile, following the first stage of the trial, Canada appealed the 2009 decision. That appeal was dismissed by the Court of Appeal in 2011 (Ahousaht Indian Band v Canada (AG), [2011] 3 CNLR 1 (BCCA)). The Court of Appeal upheld the trial decision but removed geoduck species from the “any species” list of the right-based fishery and included other minor variations. Canada then appealed to the SCC. The SCC remanded this present case back to the Court of Appeal in 2012 with no reasons, but with a direction that the case be reconsidered in accordance with their recent decision in Lax Kw’alaams. After reconsideration, the Court of Appeal once again dismissed the appeal and confirmed its order from 2011 (Ahousaht Indian Band v Canada (AG), [2013] 4 CNLR 31 (BCCA)). Canada applied to the SCC for leave to appeal the reconsideration decision but was denied in 2014. This court is bound by the Court of Appeal’s 2013 reconsideration decision. The stage of this trial then began in 2015 where the parties agreed that a justification analysis is required for each species of fish for which the plaintiffs have submitted fishing proposals.

This case as it stands can only be concerned with the justification analysis. The 2009 declared Aboriginal right cannot be redefined, despite being general without any qualifiers. However, in order for the justification analysis to take place, the Court held that the right has to be clearly described. The only way to circumscribe the right-based fishery at this stage of trial was by using what could be inferred from reading the 2009 reasons as a whole. Although the Court rendered general comments regarding the infringement and justification analysis in the present case, it found that a justification analysis had to be done in a species-specific manner. An analysis of continuity in respect of each individual species, however, could not result in subtraction of species from the “any species” declaration, despite the 2011 Court of Appeal’s removal of the geoduck species, which was eliminated on the basis of fishing technique.

The 2009 declaration has been described as a two-edged sword. Canada is bound by the right as declared, but the plaintiffs are bound as well, and unhappy with the nine-mile limit for a right-based fishery. They cannot exercise their right within the CDA in a way that is satisfactory to them. The conclusion to be drawn from interpreting the 2009 reasons as a whole, despite the lack of parameters in the declarations, is that the declared right to fish for any species and to sell that fish is to be interpreted as a small-scale, artisanal, local, multi-species, right-based fishery, to be conducted in a nine-mile strip from shore, using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation.

Canada, however, did not take the position that the entire regime, found to be a prima facie infringement, could be justified and should remain unchanged. Given all the circumstances and complexity surrounding the procedural history and subsequent Negotiations, it was considered inappropriate or unnecessary to make a general declaration in respect of a failure of the duty to consult in good faith either under the common law or under the declaration. There were stumbling blocks presented by both sides, and the process is still in progress. The Court also noted the Department of Fisheries and Oceans’ commitment to ongoing deep consultation, and therefore did not see this as an issue upon which the justification analysis should stand or fall.

Editor’s Note: Six First Nations governments and three industry groups sought leave to intervene on the basis that each has a public interest in a public law issue and each can bring a valuable perspective to the Court. On November 7, 2018, leave for all nine applicants was granted by the British Columbia Court of Appeal but limited to issues that will not be repetitive and will be helpful to the Court (Ahousaht Indian Band and Nation v Canada (AG), 2018 BCCA 413).

Northern Inter-Tribal Health Authority Inc. and Peter Ballantyne Cree Nation Health Services Inc. v Attorney General of Canada (Minister of Finance), 2018 FC 1180 [NITHA]

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Federal Government has a long-standing obligation to provide health services to First Nations. The Applicants pension plans fall under federal jurisdiction.

In NITHA, the Federal Court considered whether the pension plans of the applicants, Northern Inter-Tribal Health Authority Inc. (NITHA) and Peter Ballantyne Cree Nation Health Services Inc. (PBCNHS), fell under federal or provincial jurisdiction. The Office of the Superintendent of Financial Institutions of Canada (OSFI), argued that the pension plans fall under provincial jurisdiction, while NITHA and PBCNHS argue that they fall under federal jurisdiction. Applying the two-part test articulated by the Supreme Court in NIL/TU, O, the Court declared that the pension plans in question fall under federal jurisdiction.

The Court concluded that a correctness standard of review was to be applied on the grounds that the dispute engaged a question of a constitutional nature. NIL/TU, O and Nation Innu Matemekush-Lac John supports that constitutional issues regarding the division of powers are to be decided on a correctness standard.

The applicable test identified as outlined by Abella J in NIL/TU, O, contains two parts. The first part is a functional test of whether the entity is engaged in a federal undertaking. This requires an inquiry into the nature, habitual activities and daily operations of the entity in question. The second part applies only if the first part is inconclusive and it requires consideration of whether provincial regulation would impair the core federal power. The Court also reiterated Abella J’s citation to Four B Manufacturing Ltd, which indicates that federal government funding does not on its own convert the operation into a federal activity.

The functional test calls for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal undertaking. In examining the Supreme Court’s application of the functional test in NIL/TU, O, the Court highlighted Abella J’s position that the emphasis be placed on the underlying reason for the performance of the activities. The Court also echoed McLachlin CJC and Fish J’s concern in Four B Manufacturing Ltd that the test must be applied cautiously to avoid simply conflating the nature of activities with the habitual and daily operations involved in carrying out an activity.

The Court concluded that OSFI made an error by failing to consider the underlying reason for the activities. In particular, the fact that OSFI narrowly construed the purpose of the agreements governing the relationship, by referring to some recitals and excluding others which make reference to constitutional provisions, the special relationship subsisting between First Nations People and the Crown as well as important historical documents, such as Treaties 5, 6, 8 and 10, which include promises of healthcare. These treaties make it clear that the Federal Government undertook to provide health services to Indians on Indian Reserves.

On this basis, the Court granted the application for certiorari to quash OSFI’s decision. These arguments, along with a further examination of the historical treaty record, were also used to support a declaration that the provision of health services to the Indians is a century long federal undertaking made, in part, in keeping with the treaty relationship between the Applicants and the Federal Government.

Francis v Canada, 2018 FC 49

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Plaintiff’s motion failed for a declaration of an interim order for advanced costs. The circumstances surrounding the claim of an unjust infringement of treaty and Aboriginal rights was not sufficiently compelling or unique enough for the Court to grant this exceptional remedy.

The Plaintiff, Hubert Francis, is a Mi’kmaw and member of the Elsipogtog First Nation in the province of New Brunswick. On three occasions in 2015, officials from the Department of Fisheries and Oceans boarded his vessel and seized his catch for fishing without a valid fishing license. He asserts he is entitled to do so pursuant to treaty and Aboriginal rights. The Plaintiff and the Aboriginal crew of his vessel, have been charged with fishing without authorization in respect of the last two incidents, and are facing summary conviction proceedings under the Fisheries Act before the courts of the province of Québec.

The Plaintiff sought declarations that the prohibitions and restrictions placed upon him are an unjustifiable infringement of his treaty and Aboriginal rights. The Plaintiff asked for an interim order for advanced costs, relying on the principles in British Columbia (Minister of Forests) v Okanagan Indian Band, as he would otherwise be unable to proceed with this civil action. There is agreement among the parties that the Plaintiff must meet three criteria of the Okanagan test before the Court may order for advanced costs: (1) The party genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial; (2) The claim to be adjudicated is prima facie meritorious or of sufficient merit that it is contrary to the interests of justice for the litigation to be forfeited just because the litigant lacks financial means; (3) The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

The Court concluded the Plaintiff cannot meet two of the three criteria required of the Okanagan test, therefore his motion fails. Although the Plaintiff only raised a nominal amount for a civil proceeding, there was no attempt by him to secure funding for his defense in the summary conviction proceedings. It has not been demonstrated that these issues cannot be determined fairly, adequately and without injustice in the context of the Quebec criminal proceedings. The failure of the Supreme Court to mention the availability of other fora under the specific heading of impecuniosity in both R v Caron and Little Sisters Book and Art Emporium v Canada has little relevance to the issues. Advanced cost orders must be used only as a last resort to avoid an injustice, not because it is a “preferable” mode of determining issues, where an adequate alternative mode exists. It must be to prevent an injustice for the litigant and the public at large that would result from the failure of having issues of public importance properly resolved. It should not be used as a smart litigation strategy.

Although the declarations sought by the Plaintiff in his statement of claim are limited to his own rights, it remains that the rights he asserts are, by their nature, collective rights held by the relevant Aboriginal communities or collectives. As such, they cannot be advanced as the basis of a civil claim or a declaratory action without the support of the community or collective, which he does not have. Individuals can, without the support of the relevant collective that holds the rights, assert these communal rights and have them adjudicated, to the extent necessary, in defense to criminal or regulatory offence proceedings, but individuals may not invoke them as the basis of a claim for determination of rights (R v Chevrier and Queackar- Komoyue Nation v British Columbia). To recognize an individual’s right to institute and maintain, without the support of the appropriate collective, civil actions asserting Aboriginal rights whenever they are brought “in parallel” to criminal proceedings, would ignore the unique nature of those rights and undermine the authority of the lawful representatives of the relevant band or nation to determine when and how to assert these rights. Given the Plaintiff’s lack of standing to bring this action, the second criterion of the Okanagan test, that the claim be prima facie meritorious, has not been met.

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

Wiyasiwewin Mikiwahp Native Law Centre

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

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

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

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

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

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

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

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

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

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

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

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

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

Beaver v Hill, 2018 ONCA 816

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

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

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

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

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

By Daniel Quainoo and Benjamin Ralston

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

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

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

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

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

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

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

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

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