Cowichan Tribes v Canada (AG), 2020 BCSC 1507

Cowichan Tribes is entitled to claim privilege over information that their Lands and Governance Director learned from Cowichan Elders during Treaty Committee meetings and during his involvement in a project-specific traditional land use study. The public interest in reconciliation through good faith treaty negotiations and the duty to consult favours case-by-case privilege in this case.

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This matter is in regards to an Aboriginal title and rights case, where the testimony of Mr. George, Lands and Governance Director for Cowichan Tribes, was questioned on communications that was learned of during Cowichan Tribes Treaty Committee meetings and related to traditional use interviews, over which the plaintiffs claim privilege. The Treaty Committee meetings were held to advise on Cowichan Tribes’ approaches to treaty negotiations and the pursuit of Aboriginal rights and title. Cowichan Tribes was advised on strategic use of oral history information including oral histories shared at Treaty Committee meetings.

In establishing confidentiality at common law, the Supreme Court of Canada first adopted the Wigmore’s four criterion in Slavutych v Baker, [1976] 1 SCR 254: 1) the communications must originate in confidence that they will not be disclosed; 2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; 3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and 4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. The party seeking to protect the communication from disclosure must demonstrate that the authors of the communications possessed expectations of confidentiality (Northwest Organics, Limited Partnership v Roest, 2017 BCSC 673 [“Roest”]; Yahey v British Columbia, 2018 BCSC 123 [“Yahey”]).

The plaintiffs submit that the communications were made during these confidential Treaty Committee meetings which were conducted with an expectation that the information would not be disclosed. Confidentiality is essential to Cowichan Tribes’ relationship with its members and its ability to ask knowledge holders and Elders to share information about traditional use. This relationship of trust is essential to Cowichan Tribes’ ability to engage in good faith consultation with the Crown. The Cowichan community view this relationship as one that should be sedulously fostered. Allowing disclosure of the contents of the interviews in the litigation would undermine the constitutionally protected process while having minimal benefit to the disposal of this litigation.

The court in Roest held that the Wigmore criteria are not “carved in stone” but are a “general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case” (Roest; R v National Post, 2010 SCC 16). Case-by-case privilege may restrict disclosure where Wigmore’s four criteria for establishing confidentiality at common law exists. Those criteria seek to balance the protection of confidential communication with the public interest in the correct disposal of litigation (P(V) v Linde, [1996] 2 WWR 48).

The Wigmore criteria have been applied to preserve the confidentiality of interviews with Elders and community members undertaken in the course of traditional use studies (Yahey). These criteria must be applied to such interviews in a manner sensitive to the unique legal and constitutional context of the duty to consult, which is underpinned by the honour of the Crown and reconciliation, and involves reciprocal duties on the Crown and First Nations to participate in good faith in the consultation process. This application must also be viewed in the context of the Crown’s constitutional duty to consult and deal honourably with First Nations. This context includes Cowichan Tribes’ reciprocal duty to “express its interests and concerns regarding potential impacts to its rights, and to consult in good faith” and recognition of the fundamental importance of reconciliation between the Crown and First Nations in this process (Yahey; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69).

In this case, the four Wigmore criteria for case-by-case privilege are met. The plaintiffs are not evincing an intention to rely on, or benefit from, the evidence they claim to be privileged. They are not seeking to adduce evidence about the substantive content of the Treaty Committee discussions. Nor do they seek to rely on the substantive content of some interviews conducted while shielding other interviews from disclosure. Rather, they adduced evidence of oral history from other sources. The question of what Mr. George learned in Cowichan Tribes Treaty Committee meetings regarding oral history of Cowichan Tribes Elders about fishing on the Fraser River is disallowed as the answers it would elicit are privileged.

Ross River Dena Council v Yukon, 2020 YKCA 10

Appeal dismissed. The Ross River Dena Council does not yet have established title, thereby no right to exclusive use and occupation of the claimed lands. It did not identify any adverse effect on its claim other than impacts on wildlife. The fact that hunters might enter the land is not, without more, an adverse effect.

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Ross River Dena Council [“RRDC”] appeals from an order dismissing its claim for declaratory relief. The key point of contention is the assertion that the Yukon’s issuance of hunting licences and seals under the Wildlife Act, adversely affects RRDC’s claim of Aboriginal title.

RRDC is part of the Kaska Nation, who are one of the “[A]boriginal peoples of Canada” referred to in s 35(1) of the Constitution Act, 1982. The land subject to RRDC’s title claim is traditional Kaska territory situated in the Yukon [“Ross River Area”] and it is acknolwledged that RRDC has a strong prima facie case for its claim to Aboriginal title over the Ross River Area. The strength of the claim requires the Yukon to engage in deep consultation with RRDC whenever the Yukon contemplates conduct that might adversely affect the title claimed (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). The parties have been in negotiations for several years. To date, RRDC’s claim has not been resolved by either a treaty or a declaration.

RRDC asked specifically for a declaration that the issuance of hunting licences and seals might adversely affect the claimed Aboriginal title of RRDC’s members in the Ross River Area and that the Yukon must consult with respect to alleged potential adverse impacts on the “incidents of Aboriginal title” (Tsilhqot’in Nation v British Columbia, [2014] 3 CNLR 362).

There is a distinction between Aboriginal title that is established and that which is asserted. Established Aboriginal title confers ownership rights similar to those associated with fee simple. These ownership rights include the right to decide how the land will be used; the right to enjoy and occupy the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage it (Tsilhqot’in Nation; Delgamuukw v British Columbia, [1998] 1 CNLR 14).

A government must demonstrate that non-consensual incursions are undertaken in accordance with the duty to consult; that they are justified on the basis of a compelling and substantial public interest; and that they are consistent with the Crown’s fiduciary duty to the Aboriginal title holders (Tsilhqot’in Nation). RRDC’s title is not yet established. It has only a claimed title, albeit a strong one. Aboriginal title that is claimed, but not established, does not confer ownership rights.

Where title is not established, the duty to consult arises when the Crown has real or constructive knowledge of the potential existence of an Aboriginal right or title and contemplates action which might adversely affect that right or title (Haida Nation). The purpose of the duty to consult is not to provide claimants immediately with what they could be entitled to upon proving or settling their claims. Rather, it is intended as a mechanism to preserve Aboriginal interests while land and resource claims are ongoing, or where the proposed action may interfere with a claimed right or title (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250 [“Rio Tinto”]).

The legal test for determining whether the duty to consult arises was broken down into three elements: 1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; 2) contemplated Crown conduct; and 3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. The third element is at the heart of this appeal. RRDC argues that by issuing hunting licences and seals, the Yukon interferes with its claimed right to exclusive use and occupation of the land which has the potential to adversely affect the claimed title by allowing the land to be used and occupied for hunting by people other than RRDC members. RRDC’s position is not that hunters entering the land cause any cognizable harm to the land (aside from potential wildlife management harm), but that their presence on the land is itself a violation of the incidents of title which RRDC asserts, specifically the exclusive use and occupation of the land. This requires consultation.

The Court determined in this matter that issuing hunting licences does not, in and of itself, give the holder of the hunting licence the right to enter land that it could not otherwise enter. A right to hunt within a region does not confer a right to enter private property situated within that region. A hunting licence is not a defence to trespass (Wildlife Act). Also, RRDC’s argument is problematic in that it can assert a right, at the present time, to control who enters the claimed land and, therefore, Yukon must consult with RRDC whenever it contemplates action that would allow or encourage others to enter the land.

RRDC has not established Aboriginal title to the Ross River Area; the process is still at the claim stage. Without an established claim, RRDC does not have an exclusive right to control the use and occupation of the land at present, nor does it have a right to veto government action. What RRDC expressed is a concern that individuals to whom licences and seals have been issued will enter the Ross River Area. That is all. It did not identify how this would have an “appreciable adverse effect” on RRDC’s ability to control the use and occupation of the land in the future, or would otherwise adversely affect its rights or interests, other than potential impacts on wildlife.

No specific concerns have been articulated. There is only an argument that the issuance of hunting licences and seals interferes with RRDC’s right to exclusive use and occupancy of the Ross River Area at the present time. As noted, however, this is a right that RRDC does not currently have. Without explaining how the presence of hunters on its claimed territory could potentially adversely affect its claimed title, the duty to consult as a means to preserve interests in the interim is not engaged.

Jackie Vautour et al v HMQ in Right of the Province of New Brunswick and the Attorney General of Canada, 2020 NBQB 007

Motion for recusal denied. The Plaintiff’s asserted their rights as Métis Acadian Mi’kmaq as justification for filing a claim for damages in the creation of the Kouchibouguac National Park. Their allegations of bias and apprehension of bias towards this claim by this Court were without merit.

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The Plaintiff’s filed a claim stating that between 1969 and 1971, the Province of New Brunswick expropriated the lands of residents in Northern New Brunswick and transferred these lands to Canada for the creation of the Kouchibouguac National Park. It stated that the Park was not Crown land, and the Plaintiffs held Métis rights and title regarding the Park and therefore, damages were sought on numerous grounds. The Plaintiffs claimed rights as Métis Acadian Mi’kmaq who come within the meaning of s 35 of the Constitution Act, 1982.

After the hearing, the Plaintiffs filed a motion seeking recusal on allegations of a reasonable apprehension of bias. It was alleged that the exchange with counsel caused them to be of the view that the Court was biased (Commanda v Algonquins of Pikwakanagan First Nation, 2018 FC 606).

Every Canadian has the constitutional right to have their issues decided by a fair and impartial judge, and allegations of bias and recusal motions strike at the core of judicial integrity (R v RDS, [1997] 3 SCR 484). The test to determine a reasonable apprehension of bias is to ask, “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude” (Committee for Justice and Liberty v National Energy Board, [1978] 1 SCR 369). The objective for the Court is not just to ensure the process is fair; it is also to grant the appearance of a fair process (Yukon Francophone School Board Education Area No 23 v Yukon Territory (AG), 2015 SCC 25). The onus to establish reasonable bias is a “real likelihood or probability of bias” which is a high standard.

This Court determined that a reasonable, right-minded and informed person would view the comments at issue in this motion as encouraging the Plaintiff’s counsel to point to relevant evidence and to get to the point if there was a point to be made. The Plaintiffs’ perception of the comments demonstrates a view of the words used in isolation, detached from the hearing in which they occurred, with a special subjective sensitivity. This subjective sensitivity is inefficient to meet the objective test for a reasonable apprehension of bias.

The Plaintiff’s allegation does not give rise to bias or a reasonable apprehension of bias. To the contrary, the record is clear that the Court had an open mind to the Plaintiffs’ submission. After reviewing the judicial comments made during the hearing, it was determined that there was no reasonable apprehension of bias. Therefore, the Plaintiff’s allegations of bias and apprehension of bias were without merit, as the Court had an open mind to their submission.

Coastal GasLink Pipeline Ltd v Huson, 2019 BCSC 2264

Interlocutory injunction and enforcement order granted. The defendants are restrained from preventing access to key service roads used by the plaintiff, Coastal GasLink Pipeline Ltd.

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The plaintiff, Coastal GasLink Pipeline Ltd, is a wholly-owned subsidiary of TC Energy Corporation (formerly known as TransCanada Pipelines Ltd). The plaintiff obtained all of the necessary provincial permits and authorizations to commence construction of a natural gas pipeline [the “Pipeline Project”]. Over a period of several years beginning in 2012, the defendants set up the Bridge Blockade on the Morice West Forest Service Road [“FSR”]. The defendants have said publicly that one of the main purposes of the Bridge Blockade was to prevent industrial projects, including the Pipeline Project, from being constructed in Unist’ot’en traditional territories. In 2018, the Court granted an interim injunction enjoining the defendants from blockading the FSR. Blockading persisted, however, at another access point along the road, which resulted in the Court varying the interim injunction order to include all of the FSR.

The Pipeline Project is a major undertaking, which the plaintiff contends will generate benefits for contractors and employees of the plaintiff, First Nations along the pipeline route, local communities, and the Province of British Columbia. The defendants assert that the Wet’suwet’en people, as represented by their traditional governance structures, have not given permission to the plaintiff to enter their traditional unceded territories. The defendants assert that they were at all times acting in accordance with Wet’suwet’en law and with proper authority. The Wet’suwet’en people have both hereditary and Indian Act band council governance systems and there is dispute over the extent of their respective jurisdictions.

The Environmental Assessment Office issued to the plaintiff a Section 11 Order that identified the Aboriginal groups with whom the plaintiff and the Province of British Columbia were required to consult regarding the Pipeline Project. The plaintiff engaged in consultation with the Wet’suwet’en hereditary chiefs through the Office of the Wet’suwet’en over a number of years. The Office of the Wet’suwet’en expressed opposition to the project on behalf of 12 of the 13 Wet’suwet’en Houses. Offers by the plaintiff to negotiate agreements with the Office of the Wet’suwet’en have not been accepted.

The plaintiff has entered into community and benefit agreements with all five Wet’suwet’en elected Bands. The long-term financial benefits to those, and 20 other Indigenous Bands, may exceed $338 million cumulatively over the life of the Pipeline Project. The elected Band councils assert that the reluctance of the Office of the Wet’suwet’en to enter into project agreements placed responsibility on the Band councils to negotiate agreements to ensure that the Wet’suwet’en people as a whole would receive benefits from Pipeline Project. This appears to have resulted in considerable tension between the Office of the Wet’suwet’en and the elected Band councils.

The Court found that the reconciliation of the common law with Indigenous legal perspectives is still in its infancy (Beaver v Hill, 2018 ONCA 816 [“Beaver”]). Indigenous customary laws generally do not become an effectual part of Canadian common law until there is some means or process by which they are recognized. This can be through its incorporation into treaties, court declarations, such as Aboriginal title or rights jurisprudence, or statutory provisions (Alderville First Nation v Canada, 2014 FC 747). There has been no process by which Wet’suwet’en customary laws have been recognized in this manner. The Aboriginal title claims of the Wet’suwet’en people have yet to be resolved either by negotiation or litigation. While Wet’suwet’en customary laws clearly exist on their own independent footing, they are not recognized as being an effectual part of Canadian law. Indigenous laws may, however, be admissible as fact evidence of the Indigenous legal perspective. It is for this purpose that evidence of Wet’suwet’en customary laws has been considered relevant in this case.

There is significant conflict amongst members of the Wet’suwet’en nation regarding construction of the Pipeline Project. The Unist’ot’en, the Wet’suwet’en Matrilineal Coalition, the Gidumt’en, the Sovereign Likhts’amisyu and the Tsayu Land Defenders all appear to operate outside the traditional governance structures of the Wet’suwet’en, although they each assert through various means their own authority to apply and enforce Indigenous laws and customs. It is difficult for the Court to reach any conclusions about the Indigenous legal perspective. Based on the evidence, the defendants are posing significant constitutional questions and asking this Court to decide those issues in the context of the injunction application with little or no factual matrix. This is not the venue for that analysis and those are issues that must be determined at trial.

The defendants have chosen to engage in illegal activities to voice their opposition to the Pipeline Project rather than to challenge it through legal means, which is not condoned. At its heart, the defendants’ argument is that the Province of British Columbia was not authorized to grant permits and authorizations to the plaintiff to construct the Pipeline Project on Wet’suwet’en traditional territory without the specific authorization from the hereditary chiefs. Rather than seeking accommodation of Wet’suwet’en legal perspectives, as suggested by their counsel, the defendants are seeking to exclude the application of British Columbia law within Wet’suwet’en territory, which is something that Canadian law will not entertain (Beaver).

Such “self-help” remedies are not condoned anywhere in Canadian law, and they undermine the rule of law. The Supreme Court of Canada has made it clear that such conduct amounts to a repudiation of the mutual obligation of Aboriginal groups and the Crown to consult in good faith (Behn v Moulton Contracting Ltd, 2013 SCC 261).

All three branches of the test for an interlocutory injunction are satisfied. Injunctive relief is an equitable remedy. In the Court’s view, it is just and equitable that an injunction order be granted and that this is an appropriate case to include enforcement provisions within the injunction order. The public needs to be informed of the consequences of non-compliance with an injunction order (West Fraser Mills v Members of Lax Kw’Alaams, 2004 BCSC 815).

Note: Benjamin Ralston is a sessional lecturer at the College of Law and a researcher at the Indigenous Law Centre. We are proud to acknowledge his contribution as co-counsel for the defendants in this case.

Mi’kmaq of PEI v PEI (Her Majesty the Queen), 2019 PECA 26

Appeal dismissed. Prince Edward Island [“PEI”] satisfied the duty to consult with the Mi’kmaq in PEI, when it came to the transfer of the Mill River golf course property to private ownership.

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The Mi’kmaq in PEI [“Mi’kmaq”] have asserted Aboriginal title to all of the lands and waters of PEI. Their claim is based on exclusive occupancy at the time of first contact with Europeans and at the assertion of British sovereignty. The Province of PEI [“Province”] approved the conveyance of the Mill River golf course and resort to a private sector company. Since the Mill River property was Crown land, and the Mi’kmaq had previously given notice to the Province that it intends to bring a claim for Aboriginal title to all of PEI, the Government initiated consultation.

The Mi’kmaq brought an application for judicial review before the Supreme Court of Prince Edward Island. They sought declarations that the Province failed to adequately consult or accommodate and that the Orders-in-Council approving transfer for the properties are invalid and to be set aside. It was determined that the Province provided the Mi’kmaq with timely and appropriate information regarding its general intention to divest its four golf course properties, including requesting information and evidence in support of the Mi’kmaq claim to Aboriginal title and as to its concerns over potential adverse effect of the proposed conveyance.

The Mi’kmaq in PEI now appeal to this Court. They assert the reviewing judge made numerous errors. They challenge the finding that the Province gave adequate consultation. In this appeal they ask whether the government acted reasonably in carrying out consultation and if it was sufficient in the circumstances. This Court determined that the consultation was reasonable and also points out that the duty to consult was not triggered in the circumstances (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). As to Aboriginal title, there was very little information or evidence provided in support of the assertion that, based on exclusive occupancy at the time of British sovereignty, it had Aboriginal title to all of PEI or the property.

Consultation is a two-way street. The Mi’kmaq provided little by way of evidence or information to show how its asserted title claim would be eventually proven or as to its historic connection with the property. The information provided was mainly repeated assertions with general statements of entitlement to title that did not materially contribute to an evidence-based assessment. The Mi’kmaq claim as presented to the Province was tenuous. A potential for adverse effect needs to be raised. There needs to be a nexus shown between the potential activity on or regarding the land and the interest sought to be protected (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250). There was no information or evidence provided to show potential infringement or adverse impact on identified Mi’kmaq interest or association with the Mill River property as a result of conveyance of the property. The reviewing judge performed the proportionality test properly and without error.

Cowichan Tribes v Canada (AG), 2019 BCSC 1922

Indigenous peoples’ claims require flexibility in order to be fairly adjudicated, but that is not a blanket admissibility of evidence. As with oral history, proving colonial documents has similar difficulties and should only be submitted following an assessment of their reliability.

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The plaintiffs seek declarations related to Aboriginal title to lands along the south shore of Lulu Island in the City of Richmond. They also claim fishing rights as the Cowichan people had a semi-permanent fishing village called Tl’uqtinus along the south arm of the Fraser River. There is heavy reliance on oral history and hearsay evidence contained in thousands of historical documents and on expert evidence to provide an opinion on the nature and character of the occupation by the Cowichan peoples in the past.

The plaintiffs submit that the defendants improperly objected to the admissibility of the documents. They submit that all of the documents should be admissible for the prima facie truth of their contents, leaving the question of reliability to be considered when assessing the ultimate weight given to the documents. The plaintiffs acknowledge that hearsay is presumptively inadmissible, however, in Aboriginal rights claims under s 35 of the Constitution Act, 1982, the rules of evidence should be broad, flexible and applied purposively to promote truth finding and fairness for plaintiffs faced with having to prove facts across a gulf of centuries (Mitchell v MNR, [2001] 3 CNLR 122 [“Mitchell”]).

Admitting a document into evidence for prima facie truth of its contents does not bind the court to the contents of the document. In some circumstances, however, hearsay evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding (R v Khelawon, 2006 SCC 57 [“Khelawon”]). To address this, there have been common law exceptions to the rule against hearsay and the Supreme Court of Canada [“SCC”] developed the principled approach employing a more flexible, case-by-case approach to assessing admissibility. Under this principled approach, hearsay can be admitted if the party tendering it establishes on a balance of probabilities that the twin criteria of necessity and threshold reliability are satisfied (Khelawon). The trial judge acts as a gatekeeper to protect trial fairness and the integrity of the truth-seeking process by protecting against the admission of unreliable evidence (R v Bradshaw, 2017 SCC 35).

In regards to hearsay in Indigenous claims, the SCC recognized the need for a flexible adaption of the traditional rules of evidence in Aboriginal claims cases, but made it clear that the rules of evidence are not to be abandoned. The flexible approach to evidence does not mandate blanket admissibility, and the threshold for reliability, while not high in Aboriginal claims cases, does continue to exist (Mitchell). Historical Aboriginal claims and rights cases have inherent evidentiary challenges. Necessity is almost automatically met given that these cases rely heavily on ancient documents and hearsay evidence of the deceased (Mitchell; Delgamuukw v British Columbia [1998] 1 CNLR 14 (SCC); Tsilhqot’in Nation v British Columbia, 2014 SCC 44).

That assessment may be fairly automatic if the document falls within certain categories, such as public documents, or official communications between persons responsible for stewardship of government. The court can rely on the evidence of experts to provide it with the information necessary to conduct a reliability assessment. The fact that an expert relies on a document does not automatically establish reliability of the document for the court, but it is evidence that the expert finds the document to be reliable. Courts need the assistance of experts to evaluate and understand historical documents. One of the difficulties in this case is that no living person can be called to give eye witness evidence of what was happening in the claim area before, at the time of, and for many decades after first contact with European settlers (Tsilhqot’in Nation v British Columbia, 2004 BCSC 1237 [“Tsilhqot’in BCSC”]).

It is abundantly apparent the parties must rely on historical documents, oral history and traditions, ethnography and archaeology in the proof of their cases. The meaning of documents is not always self-evident and can only be understood in context. That is particularly true of historical documents where it cannot be properly evaluated until the court knows who wrote it, for whom it was written, and, most importantly, why it was written (Tsilhqot’in BCSC). The distinction between threshold reliability and ultimate reliability remains, and the trial judge still must act as a gatekeeper to keep the record free from unreliable hearsay and to protect the fairness and integrity of the trial.

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

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

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

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

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

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

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

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

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

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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.

Case Watch for October 2016

FROM OUR PUBLICATIONS DESK

Case Watch

The following decisions came across our desk over the past month:

Jurisdiction of superior courts over transboundary Aboriginal rights

Uashaunnuat (Innus of Uashat and Mani-utenam) c Iron Ore Company of Canada, 2016 QCCS 5133 (in French only): The Superior Court of Quebec dismissed an application from the defendants to strike portions of the plaintiffs’ claims. The Innu plaintiffs are suing the defendants, a mining company and a railway company, for $900M in damages for alleged harms to their section 35 rights within their traditional territory, the Nitassinan, which covers a large portion of the Quebec-Labrador peninsula. The defendants argued that to the extent the plaintiffs’ claims relate to land outside Quebec’s borders, those claims are outside the jurisdictional competence of the Quebec Superior Court, as per the Quebec Civil Code. The claims are premised on asserted Aboriginal rights and title, as well as treaty rights. In determining this application, the Court noted the need to consider the Aboriginal perspective when addressing section 35 rights, the sui generis nature of these rights, and the fact that recognition of these rights is ancillary to the primary focus of this litigation, which is on damages. The Court also rejected forum non conveniens and Crown immunity arguments. It noted in the latter case that the section 35 rights of the Innu are existing rights, not rights created by the courts, and should therefore not differ as between Quebec and Labrador.

Freedom of expression in context to injunction application for blockade

Siksika Nation v Crowchief, 2016 ABQB 596: The Alberta Court of Queen’s Bench granted the Siksika Nation an interlocutory injunction against a group of its members to prevent them from interfering with its contractor’s efforts to rebuild homes in an on reserve development. The respondent stated that his purpose for initiating the blockade was to draw attention to alleged issues of oversight, accountability and transparency with respect to the applicant’s use of financial resources on this project, among other things. The respondent invoked his Charter right to freedom of expression in defence of the protest and blockade. The Court found that the applicant was able to meet the test for an interlocutory injunction. The Court also held that the Charter did not apply in the circumstances, since the injunction was aimed at ensuring the applicant and its contractor could fulfill the terms of a private agreement, and the applicant was not seeking to prevent the respondents from pursuing legal avenues to express their dissent. The Court further concluded that the injunction would be a justifiable infringement of the respondents’ Charter rights even if the Charter had applied.

Annuity claims and the unique context of each Numbered Treaty –

Horseman v Canada, 2016 FCA 238: The Federal Court of Appeal dismissed an appeal from a Federal Court decision that declined to certify a proposed class proceeding for treaty annuities owed under each of the Numbered Treaties. The Federal Court had concluded that there was insufficient commonality between the circumstances of each treaty’s annuity clause for the purposes of a class action. The Court of Appeal upheld the decision and substantially agreed with the Federal Court’s analysis. It held that treaty interpretation requires an intensive inquiry into the mutual intent of the parties and the purposes for which they entered treaty. Due to the unique historical, cultural, and economic context surrounding each treaty, class proceedings would likely not have issues of commonality unless they were limited to a particular Numbered Treaty.

Admission of extrinsic evidence re: duty to consult on judicial review –

Sipekne’katik v Nova Scotia (Minister of Environment), 2016 NSSC 260: The Supreme Court of Nova Scotia allowed the admission of affidavit evidence beyond the record in a statutory appeal from ministerial approvals under Nova Scotia’s Environment Act. The approvals were for the development of an underground natural gas storage facility. Sipekne’katik claim Aboriginal and treaty rights to hunt and fish in the area where the project will be developed. The Court held that evidence beyond the record would only be admissible in exceptional circumstances, such as breaches of natural justice and procedural fairness. All parties relied on the Crown’s duty to consult falling within the broad heading of a “breach of procedural fairness” in order to argue that their respective affidavits were admissible. The Court noted that affidavit evidence would not be admissible merely because the honour of the Crown was raised as an issue. They must relate to the scope and content of the duty to consult and whether that duty has been fulfilled. Under this test the Court accepted all the affidavits, subject to the striking of some argumentative portions.

Injunction granted against logging blockade –

D.N.T. Contracting Ltd v Abraham, 2016 BCSC 1917: The Supreme Court of British Columbia granted a logging company’s application for an injunction prohibiting members of the Takla Lake First Nation (TLFN) from blocking, physically impeding, or delaying access to harvesting sites under a timber licence. Members of the TLFN stated that their burial sites and traditional territory were within the cut block boundaries of the licence. They also stated that TLFN receives a larger number of consultation referrals than they can manage due to their small size and financial management issues from previous administrators. TLFN indicated it was willing to negotiate with the applicant and allow the logging if accommodation could be reached. The Court held that the blockade constituted irreparable harm as further delays would threaten the economic standing of the company’s operations and harm it significantly. The Court held that TLFN should have brought its issues forward during the consultation process before the licences were approved, rather than threatening the administration of justice by blocking access to the harvesting sites long after the time for consultation had passed.

Appraisal of lease rates for on reserve recreational properties –

Schnurr v Canada, 2016 FC 1079: The Federal Court resolved three common issues in a class action lawsuit filed by a group of on reserve cottagers. The plaintiffs are disputing a rental increase proposal of up to 700% for each year of a five-year rental term. The primary issue was the appropriate methodology for determining the fair market rental value of the leased properties. The Court determined that the appropriate method was to consider comparable lease rates on comparable property. The Court sided with the plaintiffs’ real estate appraiser because of his greater knowledge of the subject property, and familiarity with the Saskatchewan market and the recreational lands in the province. It did not accept the argument that provincial park rates should be excluded from the calculation due to policy constraints on those rates.

Public interest standing on judicial review of Chief Coroner’s decision –

Blackjack v Yukon (Chief Coroner), 2016 YKSC 53: The Yukon Supreme Court dismissed an application to strike the Little Salmon Carmarks First Nation (LSCFN) from an application for judicial review on the basis that it had no standing. Theresa Blackjack and LSCFN jointly filed a petition for judicial review of the Chief Coroner’s decision to close an investigation into the death of Theresa’s daughter, Cynthia Blackjack, without ordering an inquest. The Chief Coroner asserted that LSCFN had no standing in relation to the subject matter of the petition. The Court concluded that LSCFN had public interest standing to proceed with the petition because LSCFN raised a serious justiciable issue, had a real stake or genuine interest in that issue, and the proposed suit was a reasonable and effective way to bring the issue before the courts.

Limitations period for negligence claim based on sexual assault:

Fox v Narine, 2016 ONSC 6499: The Ontario Superior Court of Justice dismissed an application to strike a statement of claim alleging that a shelter was negligently operated when the late plaintiff was sexually assaulted there. The plaintiff was subsequently murdered. The Court held that there was a sufficiently proximate relationship between the late plaintiff and the shelter where she was staying at the time of her assault. There was also no reason to override or limit the scope of the duty of care. The statutory provision that would allow this action to proceed was created to improve the protection that the law offers to victims of sexual violence. While a limitation period under the Trustee Act, 2002 would ordinarily have barred the claim from being brought more than two years after the plaintiff was killed, there is no limitation period under the Limitations Act, 2002 where an action is based on sexual assault. The more general statute must yield to the more specific one, which was the limitations legislation in this case.

Canada not estopped from estoppel argument in Treaty 8 tax litigation –

Tuccaro v Canada, 2016 FCA 259: The Federal Court of Appeal dismissed an appeal from an interlocutory order of the Tax Court of Canada. Mr. Tuccaro unsuccessfully sought to strike portions of Canada’s reply where it was asserted that he was estopped from asserting a treaty right to tax exemption under Treaty 8. Mr. Tuccaro argued that this issue was definitively addressed in a past Federal Court of Appeal decision in this litigation with respect to an appeal from another motion to strike, and Canada was therefore estopped from raising its estoppel argument. Both the Tax Court and the Federal Court of Appeal disagreed. The Court of Appeal did not find it plain and obvious that Canada would be estopped from raising its estoppel argument, especially considering the discretion that a trial judge maintains over whether it accepts such an argument. The Court of Appeal also suggested that Mr. Tuccaro’s argument could have grave consequences if it were accepted. It could force litigants to raise grounds that they know have no chance of meeting the stringent test for motions to strike in order to avoid potential issue estoppel arguments on those unpleaded grounds.

Duty to reference Gladue factors in reasons for sentence –

R v Wheatley, 2016 BCCA 397: The British Columbia Court of Appeal allowed an appeal from a sentence of 18 months imprisonment for breach of a residency requirement in a long-term supervision order. The sentencing judge made no mention at all of Mr. Wheatley’s Aboriginal background or his traumatic upbringing, although this was established during the sentencing hearing and the subject of submissions. The judge was clearly aware of the law, having been the sentencing judge for one of the sentences on appeal in the Supreme Court’s Ipeelee decision. However, the importance of Mr. Wheatley’s Aboriginal background and the traumas he suffered growing up appear to have been “lost in the shuffle” when it came to the imposition of a sentence. The Court of Appeal held that “[t]oday, reference to an Aboriginal offender’s circumstances should be seen as mandatory”. The sentencing judge erred in failing to particularly consider Mr. Wheatley’s Aboriginal circumstances and Gladue factors, resulting in an unfit sentence.

Gladue factors applied in determining whether s 24(1) of Charter supported curative discharge –

R v Daybutch, 2016 ONCJ 595: The Ontario Court of Justice ordered a curative discharge for Ms. Daybutch with respect to her convictions for impaired driving offences, finding it to be both appropriate for the defendant and in the public interest. Earlier in these proceedings the Court had concluded that Ontario was in violation of the s 15 equality rights of Indigenous people in Ontario by failing to request the proclamation into force of a curative discharge option for impaired driving offences. This decision on sentence adopted a remedial approach under s 24(1) of the Charter. The Court had before it a Gladue report on Ms. Daybutch that indicated how her offences related to the systemic and background factors she faced as an Aboriginal woman. The Court took the view that the use of a curative discharge where warranted for Aboriginal offenders would permit sentencing judges to act in a Charter-compliant manner in accordance with the Supreme Court’s directions in Gladue and Ipeelee.

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