Awashish v Conseil des Atikamekw d’Opitciwan et al, 2019 FC 1131

Motion dismissed. The Applicant failed to demonstrate he would suffer irreparable harm if a First Nation election proceeded, as he can pursue an adequate remedy for his complaint before the First Nation’s Appeal Board.

Native Law Centre Case Watch

A general election for the Conseil des Atikamekw d’Opitciwan was called for September 10, 2019. The elections are governed by an electoral code, where along with other conditions, all candidates must be ordinarily resident in Opitciwan. The Applicant was nominated for the position of Chief, but the Electoral Officer withdrew the name from the ballot because the Applicant does not reside in the community. The Applicant seeks an interlocutory injunction so that his name remains on the list of candidates. He submits that the residency requirement is invalid, discriminatory and contrary to the Charter. After he brought an application for judicial review of the Electoral Officer’s decision, the Applicant subsequently brought this motion for an interlocutory injunction. Despite a strong case shown on the merits, the Applicant has failed to demonstrate that he would suffer irreparable harm if his motion was not granted. There is an adequate remedy before the Opitciwan First Nation Appeal Board that would allow him to raise his Charter claims.

An interlocutory injunction is a temporary measure intended to preserve the rights of the parties until a decision is rendered on the merits but it is not a final resolution of the case. This takes into account that such motions must often be decided on the basis of an incomplete evidentiary record and that a final resolution cannot be reached in a short time frame (Manitoba (AG) v Metropolitan Stores Ltd, [1987] 1 SCR 110; RJR–MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR”], and Harper v Canada (AG), 2000 SCC 57).

The first stage of a three part test requires the applicant to demonstrate a serious question to be tried, meaning neither frivolous nor vexatious. At the second stage, the Applicant must convince the court that irreparable harm would be suffered if an injunction is refused. The third stage of the test requires an assessment of the balance of convenience to identify the party that would suffer the greater harm from the interlocutory injunction, pending a decision on the merits. (R v Canadian Broadcasting Corp, 2018 SCC 5 [“CBC”]) It should not be believed in this highly contextualized and fact dependent framework, that the three components of this framework are completely independent of each other (Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of SK Inc, 2011 SKCA 120).

This Court often hears motions for interlocutory injunctions in First Nations governance matters. The court’s discretion should be guided by the principle of self-government, and assess whether the various courses of action would facilitate decision-making by the First Nation itself (Gadwa v Joly, 2018 FC 568). Unlike a prohibitive injunction that has a relatively low threshold (RJR), a mandatory injunction directs the defendant to undertake a positive course of action. In these instances, a “strong prima facie case” is required. Upon a preliminary review of the application, the court must be satisfied that there is a strong likelihood that the applicant at trial will be successful in proving the allegations set out in the originating notice (CBC).

In this matter, the Applicant is not seeking to prevent the election from being held, but an order to include his name in the list of candidates. In certain cases, the result of the interlocutory motion will in effect amount to a final determination of the action, thereby, a more extensive review of the merits of the case must be undertaken (RJR). When the judge hearing the merits of the case cannot undo what was done at the interlocutory stage, a strong prima facie case must be established. If the injunction is granted, the election would be conducted with ballots that include the Applicant’s name, therefore he will have obtained what he wants, making it difficult to see how a hearing on the merits would be useful (Toronto (City) v Ontario (AG), 2018 ONCA 761).

The Applicant has demonstrated the existence of a serious question to be tried, but not a strong prima facie case. The trial judge dealing with this matter will assess the evidence presented to the court and come to the appropriate conclusions. Harm is by definition reparable if there is recourse that makes it possible to vindicate the underlying right and that provides adequate remedies. The doctrine of exhaustion of remedies requires that an applicant pursue all adequate administrative remedies available to them prior to applying for judicial review. This doctrine improves respect for self-government, as it ensures that governance disputes are first dealt with by Indigenous decision-making processes (Whalen v Fort McMurray No 468 First Nation, 2019 FC 732).

The Election Code provides for the establishment of an appeal committee. Upon receipt of a complaint, the appeal committee conducts an investigation and, if founded, they may take all necessary measures, including ordering a new election. The Applicant could file a complaint on the basis that the rejection of his nomination was in violation of the Charter. The Election Code also provides that any person whose nomination is withdrawn by the Electoral Officer may immediately bring that decision to the appeal committee which the Applicant could have done. The Court therefore concludes that the Applicant has a recourse that will allow him to put forward his Charter arguments and that he did not demonstrate irreparable harm. There was no need to fully address the balance of convenience.

 

NC v Kunuwanimano CFS and Fort Albany First Nation, 2019 CFSRB 7

The decision of the Respondent to refuse the adoption of three Indigenous children placed in the Applicant’s care is confirmed under s 192 of the Child, Youth and Family Services Act.

Native Law Centre Case Watch

The Applicant requested a review pursuant to s 192 of the Child, Youth and Family Services Act, [“Act”]. This application refers to a decision made in favour of the Respondent, Kunuwanimano Child and Family Services, [“KCFS”] who refused the Applicant’s application to adopt three children who were placed in her care for two years. The children were apprehended from the care of their parents by the North Eastern Ontario Child and Family Services and made Crown Wards without access for the purpose of adoption. The children’s mother, who is deceased, and their father have membership with the Fort Albany First Nation [“FAFN”]. The children’s files were transferred to the KCFS, an Indigenous child welfare agency and were subsequently placed in a foster home. After three years the foster home could no longer care for the children due to uncontrollable circumstances. The children were then placed in the care of the Applicant and remained in her care for almost two years until their abrupt removal.

The Child and Family Services Review Board’s [“CFSRB”] determination is made in accordance with the expanded definition of the test for the best interests of the child set out in s 179(2) of the Act. In addition to giving prominence to the child’s views and wishes, as well as the recognition of Indigenous cultures and connections to their community, the preamble of the Act also acknowledges that children are individuals with rights to be respected and voices to be heard.

SV, who is the most recent placement for the children, is a member of the Moose Cree First Nation and grew up alongside the children’s father. The evidence is clear that SV has strong connections to the children’s community and cultural heritage. Her practices are traditional in her home where the children are introduced to hunting and fishing and that this was consistent with a way of life, rather than simply an activity. She has taken significant measures to connect the children to their extended family with whom she is well acquainted.

In contrast, the Applicant has no significant ties to the children’s First Nations community or extended family. The Applicant knows very little about the cultural practices of the children’s Indigenous community, or the Illilu people. It was clear that she cares deeply for the children and wishes to adopt all three of them. Her evidence, supported by report cards and the agency’s own documents, was that they were well-cared for in her home and had developed a bond with her and her family. The views and wishes of the children also confirmed the strong bond that the children have with the Applicant. The abrupt removal of the children from her care was traumatic for her and also for the children.

The CFSRB, however, is also mindful of the view of family and community that is expressed by the FAFN and the emphasis on customary care alternatives for Indigenous children under the Act. It is also through the current placement that the children are reconnecting with their father, albeit not as a primary caregiver. While SV is not a direct relation to the children, it is clear that she has strong historical and current connections to the children’s extended family and is committed to facilitating their relationships with family as much as possible. The Applicant simply cannot offer the same commitment and ease of connection to family as SV.

Of considerable importance to our determination is the connection between the siblings. They have always been together and expressed a wish to remain that way. The CFSRB finds that to separate the Children at this time would not be in their best interests and along with all the above factors, favours confirmation of the Respondents’ position. The CFSRB, however, is also of the view the children were not given the opportunity to properly say good-bye to the Applicant and suggested that the KCFS facilitate an acknowledgement and contact to bring some finality to these unresolved feelings.

BC (Director of Child, Family and Community Services) v Beauchamp et al, 2019 NWTSC 19

Judicial review allowed. The Director did not receive the minimum notice of the custom adoption application of a Métis child. The decision of the Commissioner must be quashed and the certificate for adoption vacated.

Native Law Centre Case Watch

The Applicant, the British Columbia Director of Child, Family and Community Services [“Director”] has applied for a judicial review of the decision of the Respondent, Custom Adoption Commissioner Mary Beauchamp [“Commissioner”]. She issued a Custom Adoption Certificate [“Certificate”] that recognizes the adoption of a Métis child by the Respondents [“Foster Parents”] in accordance with Aboriginal customary law.

In 2013, a Métis child was apprehended the day after her birth by child protection authorities in British Columbia. She was placed in foster care of the pursuant to a family care home agreement they entered into with the Director. The Director was granted legal custody of the child through a continuing care order [“CCO”] dated July 6, 2015 by the BC Provincial Court. The Director has removed the child from the former Foster Parents care and placed her in an Ontario home to be with her biological siblings.

The Foster Parents submitted a petition to the court to adopt the child which was dismissed. A second petition was submitted asking for the same relief, but it was dismissed on the grounds of res judicata. Another petition was subsequently submitted, among various relief was adoption of the child, but also a reference to Aboriginal customary adoption. Again, the petition was dismissed as an abuse of process. The Foster Parents then submitted a fourth petition [“Petition #4”] but this submission was fundamentally different than the previous petitions. It stated that the child had already went through an Aboriginal customary adoption. It was dismissed as an abuse of process, but is now under appeal at the British Columbia Court of Appeal. That court presently has its decision on hold as it awaits the decision of this judicial review.

One of the Foster Parents is Métis and is a member of the British Columbia Métis Federation. Sometime after their former foster child was removed from their care, they moved to the Northwest Territories. They then met with the Commissioner who subsequently issued the Certificate recognizing that the child was adopted in accordance with Aboriginal customary law in 2013.

The Aboriginal Custom Adoption Recognition Act [“Act”] was enacted to recognize Aboriginal custom adoptions. The Act provides a process for individuals who have adopted a child in accordance with Aboriginal customary law to apply for a certificate recognizing the adoption. The certificate does not create an adoption but recognizes that an adoption has already taken place (Bruha v Bruha, 2009 NWTSC 44 [“Bruha”]). Custom adoption commissioners are appointed by the Minister on the basis that they already have knowledge and understanding of Aboriginal customary law in the community or region in which they reside. A custom adoption commissioner is simply recognizing that a custom adoption has taken place, however, the importance of the decision and the impact from it is significant. Once a commissioner is satisfied that the information required is complete and in order, a certificate is issued that a custom Aboriginal adoption has taken place. It is then filed with the court as a court order which permits the adoptive parent(s) to obtain a new birth certificate for the child. There is no appeal process provided under the Act. The decision of the custom adoption commissioner is final, subject only to judicial review (Bruha).

While the Act is intentionally vague about the process to be followed in recognizing an Aboriginal customary adoption, it does contemplate some form of notice. Given the implications of the decision of a custom adoption commissioner and the legitimate expectations of interested parties, the duty of procedural fairness requires, at a minimum, that interested parties receive notice of the application.

Custom adoption is a concept that has evolved over time and has adjusted to changing social conditions. There has been an evolution regarding who is involved in the process, who can adopt Aboriginal children, and how this process occurs (Kalaserk v Strickland, 1999 CanLII 6799 (NWTSC)). While the position of Director is created by the Child, Family and Community Service Act, she is the sole legal guardian as the CCO is still in place. The Director was an interested person and clearly entitled to notice of the application before the Commissioner. To allow the Certificate to stand would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice. If the Certificate was allowed to continue it would result in an abuse of process and therefore must be vacated.

BC (Director of Child, Family and Community Services) v LM, 2019 ONCJ 205

Restraining order granted preventing the Respondents from contact with a child they claim to have customarily adopted. Decision as to other matters on reserve.

Native Law Centre Case Watch

The British Columbia Director of Child, Family and Community Services [“Director”], requested a restraining order against the Respondents [“Foster Parents”] pursuant to s 35 of the Children’s Law Reform Act. This interim and without prejudice order restrains the Foster Parents from communicating or coming near their former foster child, her school and any other place where the child may reasonably be expected to be. Further procedural relief was granted, including a sealing order and a publication ban.

On June 22, 2018, the Foster Parents became aware of the child’s school she was attending in Ontario. They approached the child in the playground and provided the issued credentials of their status as child protection representatives for the BC Métis Federation’s child protection service. The school staff went into lockdown and called the police. The child was traumatized from the experience, but the Foster Parents insisted they were not the source of the trauma and that the school overreacted. The Director has brought this application to the Court as a result from this event, but also the prior history involving the parties, as she is afraid the Foster Parents will attempt another apprehension.

When the child was born in 2013, she was removed from the care of her birth parents the day after her birth. She was then placed with the Foster Parents under a Family Home Care Agreement. Eventually a continuing custody order [“CCO”] was established on July 6, 2015. A CCO is analogous to an order of Crown Wardship in the province of Ontario, and conferred lawful custody of the child with the Director. It is deemed to be an order of the court and is enforceable as such. The Director has the authority to remove a child under the Child, Family and Community Service Act, if she has reasonable grounds to believe that the child needs protection and there is no other measure available. Since the Director removed the child from the Foster Parent’s care, the child has resided in Ontario in a non-Métis adoptive home with her biological sisters.

The Foster Parents brought three subsequent petitions since 2015 for the adoption of the child. The first one was dismissed, the second was also dismissed on the grounds of res judicata. The third petition sought various declarations, including another order to adopt the child, but had a reference to custom adoption as well as an order for certiorari quashing the transfer of the child to Ontario for adoption. On the denial of that application, the birth parents, the Foster Parents, and the BC Métis Federation, filed a fourth petition [“Petition #4”] for a declaration that the Foster Parents have already adopted the child by way of a custom adoption.

This application was inconsistent with the prior petitions advanced by the Foster Parents, considering there is recognition of custom adoption under s 46 of the Adoption Act. The Foster Parents claimed they were unaware until very recently that their actions constituted a valid Aboriginal custom adoption which could be recognized by the courts. The court, however, did not accept these submissions and determined Petition #4 was an abuse of process and should be struck.

On the appeal of AS v BC (Director of Child, Family and Community Services), new evidence disclosed that a custom adoption commissioner [“Commissioner”] in the Northwest Territories [“NWT”], pursuant to s 2 of the Aboriginal Custom Adoption Recognition Act, had issued a custom adoption certificate. It declared that the Foster Parents adopted the child by way of Aboriginal custom adoption in 2013 which is deemed to be an order of that court. Through this, the Foster Parents obtained pursuant to the Vital Statistics Act, a British Columbia birth certificate for the child listing them as her parents. The Director had no knowledge of the proceedings in the NWT or the issuance of the BC birth certificate and filed an originating notice for judicial review in the Supreme Court of the Northwest Territories [“NWT Supreme Court”].

The British Columbia Court of Appeal [“BCCA”] stayed the appeal of S(A) v BC (Director of Child, Family and Community Services) to await the judicial review decision of the NWT Supreme Court that is on reserve. In the meantime, there is an interim, without prejudice order prohibiting the use of the NWT custom adoption certificate or its associated documents such as the BC birth certificate, by any party to gain access or custody to the child.

To decide such matters in this application at this time, while the NWT Supreme Court’s decision, the BC Court of Appeal’s decision, and the ultimate fate of Petition #4 is unknown, would be inappropriate and an abuse of process. It undermines the credibility of the courts if a judicial tribunal hears the same evidence in a different trial on the same issues, as there is potential for conflicting results (Children’s Aid Society of Ottawa (City) v M(G)).

The Foster Parents have clearly demonstrated that they are not prepared to wait for their claims to be fully adjudicated in a court of law, and will resort to self-help remedies without notification to the courts. On a balance of probabilities, the Director has reasonable grounds to fear for the safety of the child in her lawful custody and is granted the restraining order. The order made is without prejudice to the Foster Parents right to seek its termination or to vary it once the decisions of the two other courts have been released and the fate of Petition #4 becomes known.

Toney v Toney Estate, 2018 NSSC 179

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

Wiyasiwewin Mikhiwahp Native Law Centre
Case Watch

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

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

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

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

Beaucage v Métis Nation of Ontario, 2019 ONSC 633

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

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

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

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

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

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

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

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

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

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

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

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

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

Gift Lake Métis Settlement v Alberta, 2018 ABQB 58

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Applicants’ claim that the membership provisions in ss 75, 90 and 91 of the Métis Settlements Act of Alberta are invalid due to the principle interjurisdictional immunity, is dismissed.

The Métis Settlements Act of Alberta, Chapter M-14 (MSA) provides for limitations on settlement membership, including an automatic termination provision under which membership automatically terminates if a person voluntarily registers as an Indian under the Indian Act. The Applicants are three former members of the Gift Lake Métis Settlement, whose memberships were terminated after each voluntarily registered as an Indian under the Indian Act to access health benefits. They asked for a declaration that certain membership sections of the MSA, are, in pith and substance, laws in relation to “Indians or Lands reserved for the Indians” and therefore outside provincial legislative competence, under section 91(24) of the Constitution Act, 1867.

The doctrine of interjurisdictional immunity does not apply to the impugned membership provisions of the MSA as their pith and substance can be related to a matter that falls within the jurisdiction of the Alberta legislature. Further, the impact of these provisions does not impair the core power of the federal government under s. 91(24). Also, there is no principled basis on which the doctrine of interjurisdictional immunity would have applied only to the impugned sections. Because the membership provisions are integral to the operation and purpose of the legislation, had the doctrine applied, it would have applied to the whole MSA, rendering the MSA entirely inapplicable to Alberta’s Métis population. Consequently, this group would have lost the benefits and protections the MSA affords them. Additionally, it would have would have created a legislative vacuum, as there is no corresponding federal legislation that would fill the void.

Unlike Indians, with whom the Federal Crown made treaties and granted reservations and other benefits, the Métis communities were not given a collective reservation or land base. They also did not enjoy the protection of the Indian Act, or any equivalent. Under the Accord, the Alberta government granted the Métis Settlements General Council fee simple title to the lands now occupied by eight Métis communities and passed legislation, including the MSA to protect Métis rights.

The MSA contains membership eligibility and termination provisions. An Indian registered under the Indian Act is not eligible to apply for membership in the Métis community except in limited circumstances, none of which apply in this case. Further, s. 90(1)(a) provides that if a person voluntarily becomes registered as an Indian under the Indian Act, that person’s Métis settlement membership terminates. There has been an amendment to the MSA in 2004, making the automatic termination provisions of s. 90 subject to a Métis Settlements General Council Policy that “provides otherwise”. However, there has been no alternative provision policy made so far that would alter the automatic termination provisions. As well, at this time, there is no way for the Applicants to withdraw their registration under the Indian Act.

The MSA recognizes and promotes the preservation of the distinct Métis culture and identity apart from other Aboriginal groups. The impugned provisions are necessary to achieve this objective. These sections only act to exclude specific individuals from membership in settlements and its benefits that are established under the MSA. The settlements under the MSA are creatures of provincial statute and were created and operate independently of Parliament’s jurisdiction over Indians under s 91(24). The fact that Métis are now recognized as Indians under s 91(24) does not change this. Membership in these settlements is not determinative of whether or not an individual is Métis and one can still be legally considered Métis under the test developed in R v Powley.

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.

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.