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

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

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

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

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

Her Majesty the Queen v Boyer, 2018 SKPC 70

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

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

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

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

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

 

Environmental Challenges on Indigenous Lands: A CIGI Essay Series

Wiyasiwewin Mikiwahp Native Law Centre

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

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

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

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

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

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

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

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

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

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

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

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

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.

 

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).

Rosemary Lamb v Her Majesty the Queen 2018 NBQB 213

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

A woman who acquired Indian status within the meaning of the Indian Act through marriage does not lose registered status as a result of divorce. Powley does not require courts to apply the Powley factors each time a person purporting to be Indian within the meaning of the Indian Act comes before the court.

In Rosemary Lamb, the Queen’s Bench of New Brunswick considered whether Ms. Lamb, a Caucasian woman who had acquired Indian status within the meaning of the Indian Act through marriage to Mr. Augustine, an Aboriginal man, continued to retain such status following her divorce. Prior to their marriage Ms. Lamb had two children with Mr. Augustine. The two were subsequently married in 1984 and divorced shortly thereafter. In 2017, Ms. Lamb was convicted for hunting moose out of season. Ms. Lamb contended that she continues to have hunting rights that flow from her Indian status with the Burnt Church First Nation. Overturning the trial decision, the Court held that her Indian status had been obtained in 1979 when she married Mr. Augustine, and continues even after divorce.

The trial court held that the Powley criteria must be applied to the evidence to determine the Aboriginal identity at law. The criteria includes Aboriginal ancestry, cultural awareness and community acceptance. Ms. Lamb, a self-represented litigant, did not provide any meaningful evidence of Aboriginal ancestry nor was she meaningfully connected to the Burnt Church First Nation community. Since she could not prove Aboriginal ancestry or cultural awareness, the trial court determined that Ms. Lamb was not an “Indian” within the meaning of the Indian Act.

In this appeal, however, the Court held that the trial court had made an error of law resulting from an incomplete legislative history. After reviewing the history of statutes governing Aboriginal identity at law (omitted here), the Court observed that as the wife of a person entitled to be registered, pursuant to s.11(1)(f) of the Indian Act, Ms. Lamb continues to be registered as an “Indian” within the meaning of the Indian Act even after her divorce. The general principle in Bernard asserts that Aboriginal rights are to be governed by the existence of a historic and present community and may only be governed by virtue of an individual’s ancestrally-based membership in the present community. It was also noted that the Bernard case allows for Aboriginal rights to be provided where an ancestral connection can be made out based on “other means”. In the Court’s opinion, marriage falls into this category. Failing to see any removal of membership provision of the Indian Act that provides for the removal of people from their Aboriginal rights, the Court concluded that Ms. Lamb must continue to retain her Indian status and the guilty conviction was set aside.

Newfoundland and Labrador (AG) v Innu of Uashat and Mani-Utenam, 2017 QCCA 1791

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Pleadings relating to Labrador not struck from civil action in Quebec against private companies based on violations of Aboriginal rights and title within Innu territory in both Quebec and Labrador. Neither nature of the allegations nor interprovincial jurisdictional immunity prevents the Quebec Superior Court from hearing entire action. Access to justice and proportionality also favour allowing Innu Nations to set out arguments in full.

The Attorney General of Newfoundland and Labrador appealed from the dismissal of an application to strike pleadings. Their application to strike concerned certain paragraphs in an originating application filed by the Innu of Uashat and of Mani-Utenam and the Innu of Matimekush-Lac John. The applicants are two Innu Nations that claim Aboriginal rights and title to a vast traditional territory called the “Nitassinan” that is situated on the Quebec-Labrador Peninsula, including areas within the provincial boundaries of both Quebec and Labrador. The Attorney General sought to strike paragraphs relating to Labrador in this matter before the Quebec Superior Court. In the appellant’s view, the Innu are attempting to obtain recognition of Aboriginal title and rights in Labrador, which the appellant submits are real rights over which the courts of Quebec have no jurisdiction. The Attorney General also claimed that the Innu Nations’ action engages interprovincial immunity in that Quebec’s Superior Court cannot have jurisdiction over the interests of the Newfoundland and Labrador Crown.

The Innu Nations are not seeking recognition of their Aboriginal rights and title against the Government of Newfoundland and Labrador or any other Crown government. Instead, they are seeking civil liability and damages against two private companies—the Iron Ore Company of Canada (“IOC”) and the Quebec North Shore and Labrador Railway Company (“QNS&LR”)—in connection with the IOC’s industrial development of iron ore extraction in the Labrador Trough beginning in the 1950s. The Innu Nations claim that IOC and QNS&LR have violated their Aboriginal rights and title within Nitassinan, and also claim Charter violations as well as other forms of civil liability.

While Haida Nation v. British Columbia (Minister of Forests) clarified that the duty to consult Aboriginal nations rests solely with the Crown, this does not eliminate the eventual liability of mining companies that obtain rights to extract natural resources on a given territory. Indeed, “[i]f they act negligently in circumstances where they owe Aboriginal peoples a duty of care, or if they breach contracts with Aboriginal peoples or deal with them dishonestly, they [third parties] may be held legally liable.” This is the foundation upon which the Innu Nations have built their action against IOC and QNS&LR.

The Court of Appeal agreed with the trial judge’s conclusion that the Innu Nations’ claims are part of a “mixed” action in which both recognition of a real right and the execution of an obligation are sought. This means that aspects of the claim concerning Labrador may be dealt with in Quebec. “Real” actions concern judicial recognition or protection of property rights, whereas “personal” actions seek judicial recognition of obligations, whether contractual or extra-contractual. The Court of Appeal stated that it is not possible to describe Aboriginal rights in terms of traditional property law concepts because they are sui generis. These rights are also collective, rather than individual, which in itself poses classification challenges within the realm of property law. The Innu Nations claim various types of Aboriginal rights have been infringed by IOC and QNS&LR, including Aboriginal title, Aboriginal harvesting rights, and others. These Aboriginal rights cannot be classified as real rights. In any event, they are ancillary to the Innu Nations’ lawsuit, which is focused on civil liability, damages, and injunctive relief against the private company defendants.

As for the appellant’s assertion that the Quebec Superior Court does not have jurisdiction because the “property in dispute” is located in Labrador, that must also fail. The Court of Appeal was of the view that interprovincial jurisdictional immunity could not be an obstacle to the jurisdiction of the Quebec courts over this dispute, at least not at this early stage. The Innu Nations admitted that the declarations the Superior Court makes with respect to Aboriginal rights over the Nitassinan will not bind the governments of Canada, Quebec and Newfoundland and Labrador. If the Innu wish to have their broad Aboriginal claims to Labrador recognized, they will have to negotiate with the government of Newfoundland and Labrador or seize the courts of that province in the context of a global claim. However, as discussed above, this is not the objective of their current action. If the appellant wishes, it may participate in the proceedings before the Superior Court in the action brought by the Innu Nations against private companies in order to assert its rights and interests. The appellant suffers no prejudice from the continuation of the action in its current form before the Superior Court of Quebec.

The Court of Appeal also stated that the application to strike raised fundamental questions of access to justice and proportionality in relation to an action concerning Aboriginal rights in an interprovincial context. According to the pleadings, the Innu Nations historically pursued their activities across the Nitassinan territory freely and without regard for borders. The trial judge noted that the principles of law which govern Aboriginal rights apply across all of Canada, again without regard to borders. The appellant wished to sever and compartmentalize at an early stage aspects of the Innu’s application that would concern, on one hand, the province of Quebec, and on the other, Labrador. Since the Innu historically ignored the border, the trial judge found it doubtful that the evidence and traditional customs addressed by Elder witnesses would draw a distinction between what occurs in Newfoundland and Labrador as opposed to Quebec. The Court of Appeal agreed that it would not be in the interests of justice to prematurely sever from the Innu Nations’ action any references to Labrador, to the rights the Innu may claim over this territory, or to the activities of the IOC and the QNS&LR. The Innu Nations should be able to set out their arguments, not piecemeal but in full, before the court that has jurisdiction over their action against IOC and the QNS&LR.

Note: On November 15, 2018, the Supreme Court of Canada granted the Attorney General’s application for leave to appeal.

The Council of the Haida Nation v. British Columbia, 2018 BCSC 277

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Application for severance of a trial concerning declarations of Aboriginal title and general Aboriginal rights, is granted on the terms sought by the Plaintiffs, with the exception that matters related to rights will only be decided in respect of the Representative Interests.

This is a case management application for an order severing the trial of an action into two parts, Phase 1 and Phase 2. The Court is satisfied that the Plaintiffs have demonstrated that there is a real likelihood that an order severing this trial into two parts will result in saving considerable time and expense. In the action, the Plaintiffs seek a declaration of Aboriginal title and Aboriginal rights to the terrestrial portions of Haida Gwaii. What is defined as the “Claim Area”, includes its inland waters, to the waters and submerged lands within the surrounding territorial sea (12 nautical miles from the coastal baseline) and to all living creatures such as fish and birds during times that they are present. The Plaintiffs claim general Aboriginal rights, including the right to harvest, manage and trade fish, marine resources and trees within the Claim Area.

The Plaintiffs’ claim that the Defendants have infringed their asserted Aboriginal title and general Aboriginal rights by issuing tenures, permits and licences, conveying land and passing laws in relation to Haida Gwaii that do not accommodate the Plaintiffs’ interests. The principle form of infringements for which compensation is sought from the Defendants are related to forestry, fisheries and land alienations. The Plaintiffs seek compensation for these infringements, or for unlawful interference with their asserted Aboriginal title, rights, and an accounting of all benefits collected in connection with Haida Gwaii. However, the Plaintiffs confirmed that they are not seeking to quash tenures, permits or licences or conveyances of land or to eject fee simple owners. They are only seeking compensation for relevant losses.

With respect to various procedural matters during and after trial, the Plaintiffs submit that a) following the completion of Phase 1 of the trial, the Court’s determination of the issues addressed in that phase will be the final determination of those issues; b) the parties may appeal the decision in Phase 1 before the commencement of Phase 2, but Phase 2 may proceed pending such appeals with the consent of the parties; c) that subject to availability, the same Justice will be seized of both phases of the trial which will be a single trial; and d) evidence heard in the Phase 1 of trial shall be deemed to be evidence in Phase 2 of the trial.

The key issue in dispute was whether Phase 1 of the trial should include a determination of broader Aboriginal rights, beyond those pertaining to the Representative Interests. The Court decided that matters related to general Aboriginal rights will only be decided in respect of the Representative Interests. Both Canada and British Columbia dispute that the plaintiffs have Aboriginal title to all of the Claim Area and both agree that the Plaintiffs’ claims with respect to Aboriginal title over private lands and submerged lands are novel. No such claims were dealt with in Tsilhqot’in Nation v. British Columbia. The Court reasoned that, without severance, evidence concerning a defence of justification for infringement to Aboriginal title would have to be adduced for the entire Claim area. With severance, once title is determined in Phase 1, the Court will only have to concern itself in Phase 2 with infringements to areas where title has been declared. Previous comprehensive title cases have not resulted in compensatory awards. The intention of the parties is that in Phase 1 the question of whether pecuniary damages are payable in respect of the Representative Interests, and from when, are what is to be judicially determined.

The expectation is that such a determination will assist in either the settlement of damages claims for other claimed interests or by establishing a framework for evaluating such claims, which can be utilized in Phase 2. The Court agrees with the submissions of the Plaintiffs that the establishment of a template for determining compensation may considerably reduce the range of expert financial computations and evidence required to compute damages valuations and other remedies as the parties intend to engage in negotiations after Phase 1. None of the parties suggest that resolving any of the issues in Phase 1 will, in and of itself, eliminate the requirement for Phase 2. However, the Court is satisfied that an order severing this trial into two parts will facilitate settlement discussions between the parties and may therefore result in an end to the action.