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

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

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

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

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

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

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

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

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

Blackjack v Yukon (Chief Coroner), 2018 YKCA 14

Wiyasiwewin Mikiwahp Native Law Centre

Appeal dismissed. The chief coroner and a judge have concurrent, equivalent and continuing jurisdiction to order an inquest whenever it is advisable, regardless of the steps previously taken by the chief coroner.

This is an appeal by the chief coroner from an order that an inquest be held into Cynthia Blackjack’s death, a First Nation woman from Little Salmon Carmacks First Nation (“LSCFN”). Ms. Blackjack, after having repeatedly attended a local health centre, died during her transport to Whitehorse on-board a medevac aircraft. The chief coroner assumed conduct of the investigation under the Coroners Act, and after her investigation, she decided not to hold an inquest into the circumstances surrounding Ms. Blackjack’s death. The LSCFN brought allegations of racial discrimination in the provision of health care services to the chief coroner’s attention and asked for her reconsideration of an inquest. Despite the allegations of systemic discrimination, the chief coroner maintained her decision. The LSCFN and the mother of Ms. Blackjack then applied to a judge under s 10 of the Coroners Act for an order that an inquest be held, which was granted. The chief coroner appealed from this order and to have it set aside. She contends that the chambers judge lacks the jurisdiction to make the order and has failed to accord her decision due deference.

There are two distinct functions for an inquest by Canadian coroners into the circumstances surrounding questionable deaths in their communities (Faber v The Queen, [1976] 2 SCR 9, (“Faber”); Charlie v Yukon Territory (Chief Coroner), 2013 YKCA 11, (“Charlie”)): 1) there is an investigative function that is narrow and case specific that involves an inquiry into the identity of the deceased and how, when and where that death occurred and; 2) the public-interest function, which is broader and social. This entails exposing systemic failings that cause or contribute to preventable death, and recommends systemic changes to reduce the risk to human life. It satisfies the community that the circumstances surrounding questionable deaths have received due attention from accountable public authorities (Faber; Pierre v McRae, 2011 ONCA 187, (“Pierre”)).

Coroners perform these functions, with and without the assistance of juries, within parameters established by legislation. When an inquest is conducted, it is inquisitorial in nature and it functions as an extension of the initial investigative process (Charlie). Like coroners, juries do not determine legal responsibility, as inquests also fulfill the broader public-interest function. Over time, Canadian courts have come to recognize this function as increasingly significant for several reasons, including the need to allay public suspicions, remove doubts about questionable deaths and contribute to justice being both done and seen to be done (Faber; Pierre). This is often particularly important where the deceased was a vulnerable person. It is also particularly apparent in this case given Ms. Blackjack’s possible vulnerability as a First Nation citizen and the nature of the care she received in the period preceding her death, regardless of whether a causal link was established between those circumstances and the medical cause of her death.

The applicable principles of statutory interpretation are uncontroversial. As stated in s 10 of the Interpretation Act, the provisions of the Coroners Act must be given such fair, large and liberal interpretation as best insures the attainment of its objects. The words of s 10 must be read in the entire context, in the grammatical and ordinary sense, harmoniously with the scheme and objects of the Coroners Act and the intention of the legislature (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27). The sorts of circumstances that surround a questionable death which may engage the functions of an inquest are potentially diverse and difficult to identify in the abstract. That there is good reason to believe a deceased person received substandard care in and around the time of death, could be a matter of legitimate public concern. It could involve systemic failings and may warrant public scrutiny, regardless of what precisely caused the death from a purely medical perspective.

The chief coroner and a judge have concurrent, equivalent and continuing jurisdiction to order an inquest whenever it is advisable, regardless of the steps previously taken by the chief coroner. Although the chief coroner has other powers under the Coroners Act, they are powers of investigation and administration, neither of which fall within the purview of a judge and all of which a deputy chief coroner can fulfill when the chief coroner is unavailable. The fact that the chief coroner is also granted other statutory powers under the Coroners Act does not suggest the legislature intended to subordinate the jurisdiction of a judge to that of the chief coroner under s 10. The words of s 10 also indicate a concurrent and equivalent jurisdiction that is continuing in nature. The plain meaning of its words is that both the chief coroner and a judge have ongoing jurisdiction to direct an inquest, if advisable, regardless of what has previously transpired. In effect, s 10 allows either the chief coroner or a judge to order an inquest into a death where the chief coroner has previously declined to do so.

Continuing jurisdiction of this sort is unusual in an adversarial system of justice. Nevertheless, it fits comfortably within the overall scheme of the Coroners Act. An inquest does not serve to determine rights and fault. There is no risk of double jeopardy or unduly prolonged exposure to liability posed by continuing jurisdiction of this nature. There is no risk of inconsistent orders if the chief coroner and a judge have concurrent, equivalent and continuing jurisdiction. This is so because s 10 jurisdiction is only exercised when one or the other directs that an inquest be held. While either or both may choose not to exercise s 10 jurisdiction faced with a particular set of circumstances, the Coroners Act does not enable either to order that an inquest shall not be held.

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

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

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

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

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

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

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

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

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

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

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

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

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

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

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

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

 

 

The Children’s Aid Society of Brant v SG

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

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

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

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

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

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

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

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

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

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

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

The Litigation Guidelines are as follows:

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

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

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

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

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

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

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

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

Litigation Guideline #5: Recognizing Aboriginal rights advances reconciliation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

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

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

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

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

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

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

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

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

MRC de Roussillon v MRN, 2017 QCCS 3744

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Application dismissed. There is no duty to consult between the province and its municipalities about lands being transferred to the Federal government for the purposes of adding to a First Nation reserve.

The Applicants sought to have an Order in Council of the Government of Québec declared invalid on the basis of bad faith or abuse of power by the Québec government. The Order concerns vacant lands located on the territory of the Municipalité Régionale de Comté de Roussillon (“RCM”) and adjacent to the Kahnawake Reserve (the “Lands”), which the Ministère des Transports du Québec (“MTQ”) acquired several years ago to extend a highway. With the extension completed, the Lands were no longer needed for road purposes. The Order transfers the usufruct of the Lands to the Government of Canada for a possible addition to the territory of the Kahnawake Reserve. In the alternative, the Applicants also argued that condition No. 3 of the Order is ambiguous and void, as it has the effect of expanding the Kahnawake Reserve. They claim the Province does not have the legislative authority to create an Indian Reserve.

The Order transfers the usufruct of the Lands free of charge to the federal government for the benefit of the Kahnawake Mohawk Indian Band. Some of the Lands and the extension of the highway were located on the territory of the Seigneurie du Sault-Sault-Louis (SSSL), for which the Mohawks of Kahnawake filed a specific claim in the early 1990’s, alleging that the King of France gave them the territory. Since 2003, this specific claim has been under discussion with the federal government and is still ongoing.

The mechanism for transferring lands of the Québec province in order to reserve them for Indians is regulated under Québec and federal laws. The Minister of Natural Resources and Wildlife first designates the lands, and then the Québec government may “reserve and allot” the lands by adopting an order to transfer, gratuitously, the usufruct of the lands to the Government of Canada, with a view to administering it in trust for the Indian bands. No other legislative condition limits the exercise of the Québec government’s discretion in this regard. The Order, however, is only the first step in an administrative process by which the provincial lands will be added to the Kahnawake reserve as “designated lands” within the meaning of section 2(1) of the Indian Act. The process of creating an Indian reserve or adding to an existing reserve (known as “ATR” – Additions to Reserves) is subject to a specific legislative framework. A federal directive also regulates the ATR process including “an early and healthy dialogue between the First Nation, the public and affected individuals and interest groups to increase awareness and deal with potential issues”. However, “municipal governments do not have a general or unilateral veto over the granting of reserve status” and discussions with municipal governments “should not unreasonably delay the proposal” of an ATR.

The Order is political and therefore a purely administrative decision of the Québec government, or Cabinet, which is the top of the administrative and political power hierarchy. The adoption of the Order is a political decision and carries no obligation of procedural fairness or consultation with regard to the individuals affected. In respect of the autonomy, latitude and discretion enjoyed by the government in this area, any challenge to such a decision can be based only on very limited grounds. In making a political decision, the government cannot act against the law or abuse its discretion. The Order does not contravene any law. As for the rest, the government must answer for its political decisions to the electors and not the courts.

Quewezance v Federation of Sovereign Indigenous Nations [FSIN], 2018 SKQB 313

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Application dismissed for a judicial review and a quashing of the decision to divest Mr. Quewezance as a Senator of the FSIN. The FSIN is not a governmental body and as such its decisions are not subject to judicial review as there is no freestanding right to procedural fairness with respect to decisions taken by voluntary associations.

Theodore Quewezance applied for an order to have a decision to be quashed by the Federation of Sovereign Indigenous Nations [FSIN] which had him removed him from the position as a Senator of the FSIN through judicial review. Such jurisdiction depends upon the presence of a legal right, such as a breach of a private law wrong in contract, tort or other valid cause of action, that Mr. Quewezance has made no claim. There cannot be a judicial review of a freestanding right to procedural fairness.

Judicial review, in its origin and present conceptualization, is a public law concept under which superior courts engage “in surveillance of lower tribunals” in order to ensure that these tribunals respect or adhere to the rule of law (Knox v Conservative Party of Canada). It is well established that the decisions of Indian Bands are subject to judicial review. However, the FSIN was created or established by its Convention in 1982, which was an agreement entered into among all Indian Bands, except one, within the Province of Saskatchewan. The Court agrees with how the FSIN has been described in Battlefords Tribal Council Inc. v Federation of Saskatchewan Indians Inc.: the FSIN is a political organization with undetermined legal status that is likened to a voluntary unincorporated association of the Chiefs in Saskatchewan. The FSIN represent the interests of First Nations persons in Saskatchewan based upon the principles and procedures outlined in their founding document, The Conventions Act, 1982.

By way of analogy, rural municipalities in Saskatchewan are local governments by virtue of The Municipalities Act. However, the organization Saskatchewan Association of Rural Municipalities [SARM], formed by the Rural Municipalities to advance their collective interests, is a voluntary organization and not a governmental body. SARM’s decisions are not subject to judicial review. The Court in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, stated that first, judicial review is limited to public decision makers, which the Judicial Committee of SARM is not, and second, there is no free-standing right to have such decisions reviewed on the basis of procedural fairness.

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.