Schemenauer v Little Black Bear First Nation, 2018 SKQB 203

Summary judgement granted in part. The defendant is liable to the plaintiff for unpaid services, however, a trial is required to determine the precise amounts owed.

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This application is for a summary judgment against the defendant for outstanding invoices issued by the plaintiff for its services rendered between 2011 and 2014. Summary judgment is granted in part that the defendant, a First Nations band, is liable for the unpaid balance of service invoices to the plaintiff, as well as interest on that amount at the rate of five percent per annum. There remains, however, a genuine issue requiring a trial with respect to the precise amount of the unpaid balance.

The federal government through the Department of Crown-Indigenous Relations and Northern Affairs (once known as Indian Affairs and Northern Development) [“Department”], and First Nations band councils, enter into funding agreements. The bands receive funding from Parliament for various earmarked activities through these funding agreements. If a band defaults under a funding agreement, the Minister may take various steps to address the default. This includes, as in this matter, the Department appointing a Third Party Manager who receives federal funding in trust, and manages the funds on behalf of both the band and the Department. This is to ensure that programs and services for band members are not interrupted, and to protect the proper use of public funds. In this matter, the plaintiff worked as a Third Party Manager and was responsible to administer funds in trust on behalf of the Department for the benefit of the defendant’s members.

Already under Third Party Management in 2010, the defendant contacted the plaintiff. The plaintiff was asked to assist the defendant with certain matters relating to account records from previous years, as well as assistance in other various capacities that included ongoing support for the defendant’s conversion out of Third Party Management. The agreement that was entered into between the parties, in which a physical copy was not presented in evidence, stated that the plaintiff’s fees would be billed on the basis of time spent. It stipulated that all outstanding fees were to be paid within 30 calendar days from the date of a received invoice and unpaid sums would be subject to an interest rate of 1.5 percent per month until paid in full.

When the defendant was removed from Third Party Management in 2011, the plaintiff remained working for the defendant to provide co-management services, as is required by the Department as a condition for removal from Third Party Management status. Under co-management, funds were tight. While it was expected that the plaintiff would eventually be paid in full, there was a period when only incremental payments could be made. There is some confusion as to the amount outstanding under the unpaid invoices as there is no identification of the precise amounts owed for the services. The services rendered are described merely as “Consulting”, along with a description of the time spent, but with no other details.

Although the Court is satisfied that a trial is not necessary to find that the defendant is liable for payment to the plaintiff for services rendered, the amount of the unpaid balance under those invoices requires determination at trial. The required evidence to quantify the unpaid balance was not clearly presented. The amount cannot be determined based on the evidence and there is no explanation provided for this, therefore the Court cannot make the necessary finding of fact (Hryniak v Mauldin, 2014 SCC 7).

The plaintiff seeks interest on the amount outstanding, whatever determination that may be, at a rate of 1.5 percent per month. The agreement, however, did not describe this interest rate with an annual equivalent. Given that no annual equivalent for this rate was stipulated in the agreement or the issued invoices, the plaintiff’s claim is contrary to s 4 of the Interest Act and cannot be enforcedS 4 applies in circumstances where the interest is made payable at a monthly rate or at any rate for any other period of less than a year. The interest applicable must be limited to five percent per annum (Bank of Nova Scotia v Dunphy Leasing Enterprises Ltd, 1991 ABCA 351).

R v Desautel, 2019 BCCA 151

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

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

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

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

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

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

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

Children’s Aid Society of Algoma v AW, 2019 ONCJ 242

Motion granted. A child in temporary custody with a Children’s Aid Society is determined to be First Nations. Although the father is not eligible for membership, the First Nation believes that the father, and therefore the child, is affiliated with that community.

The Children’s Aid Society of Algoma [“Society”] has brought a motion regarding a less than one year old child identification as a First Nations child and if the child identifies with the Batchewana First Nation [“BFN”]. Relief sought also includes an order that adds the BFN as a party respondent to this proceeding and an order that transfers the conduct of the application to the Nogdawindamin Family and Community Services [“NFCS”] as applicant. Thus, the proceeding shall continue as though commenced by NFCS in replacement of the Society, with an order transferring the interim care of the child from the Society to the NFCS. The band representative of the BFN, with consent of all parties, made submissions that they be heard given the potential ramifications of the outcome of the motion.

The Society brought a protection application before the Court and an interim without prejudice order was made that placed the child in its temporary care and custody. The parents have access to the child that is subject to a mandatory minimum number of hours along with multiple terms and conditions applicable to the parents during the exercise of any access. Initially the parents did not claim to be Indigenous to the Society upon its involvement. The Society, at that time, understood that the child was not eligible for registration or identified with any First Nations, Métis or Inuit band or community. The mother filed an addendum to the plan of care that stated the father found out he has some family with Indigenous connections, including an association with the BFN. The mother indicated that she herself practices various traditional Indigenous teachings and self-identifies with the BFN on that basis. The BFN Representative for Child Welfare [“Band Rep.”], however, did not find a community connection for the father and he is not eligible for membership with the BFN. However, that does not exclude the possibility of affiliation as the BFN believes that the father is affiliated with that First Nation.

The preamble of the Child and Youth Family Services Act [“CYFSA”] is intended to be inclusive and to facilitate broad interpretations in order to recognize cultural, hereditary and traditional connections. The intent of the legislation, as read by this Court, is to avoid creating rigid barriers that would discourage persons from self-identifying. It is to promote self-identification and pride in being a First Nations person, even if this did not occur for one or more generations in the past. Under the CYFSA, it is possible for a child to identify as First Nations and not be a member of an Indigenous band or community (Children’s Aid Society of Ottawa v NP). A child’s identification as First Nations, regardless of membership, is important as there are many considerations under the CYFSA for Indigenous children.

As well, s 21 of the Ontario Regulations 156/18 [“O Reg 156/18”] directs the Court to accept hearsay evidence on this issue (Children’s Aid Society of Algoma v CA; CP and the Batchewana First Nation). This does not mean that all rules of evidence and some standard of proof does not apply. There must be evidence in relation to the child as to whether access is beneficial and meaningful to the child (Children’s Aid Society of the Regional Municipality of Waterloo v CT). Subsection 2(3) Article 1 of the CYFSA indicates that the person who has an ethnic, cultural or creedal ties in common with the child or the parent or relative of the child, is a member of the child’s community. Article 2 speaks of a person who has a beneficial and meaningful relationship with the child. The words “beneficial and meaningful” are used nine times in the CYFSA, however, those words are not defined by the CYFSA. While this proceeding is regarding the quality of the care being provided by the parents for the child, the interim without prejudice order provides the parents and the child with access to each other. In its protection application, the Society sought an order that each parent have access with the child. There has been no motion to terminate that access for either parent or that this access has been detrimental to the child. This indicates that there is some beneficial and meaningful relationship between each parent and the child. Accordingly, while it may seem intuitive, this supports a finding that each parent is a member of the child’s community.

Each parent has provided evidence of self-identification as an Indigenous person. The mother has provided evidence that she practices traditional Indigenous teachings and has an “association” with the BFN. There is no evidence, however, that the mother has any link beyond her personal choice and the evidence does not assist in creating an identification link between the child and the BFN (Children’s Aid Society of the Regional Municipality of Waterloo v CT). There is evidence that the father identifies as a First Nations person.

The O Reg 156/18 promotes the acceptance of hearsay evidence. The Court accepts the father’s evidence regarding his maternal grandfather and his own identification as an Indigenous person. Other evidence before this Court does not contradict that evidence and it is proof that meets the standard of being on a balance of probabilities. This is a recent awakening by the father, but it is not contradicted by any other evidence. The BFN intends to be inviting of the father and, in turn, the child. The BFN seeks to be involved in this proceeding and the level of involvement will be determined by the First Nation. It is appropriate that the BFN be added as a responding party in this proceeding and that the NFCS be substituted, in place of the Society, as the applicant. The Court finds the child is a First Nation’s child and the Society’s motion is granted. An order is made that the BFN is made a party to and respondent in this proceeding.

Good v Canada, 2018 FC 1199

Application dismissed. The applicant did not discharge her burden to satisfactorily prove that the First Nations Election Act was contravened during a First Nation’s Chief and Band Council election.

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Michelle Good has appealed all of the last three elections of the Red Pheasant First Nation [RPFN], but this is the first appeal she has applied for under the First Nations Elections Act [FNEA]. She is a practicing lawyer in British Columbia, and is a band member of the RPFN. On November 5, 2015, the RPFN Band Council signed a Band Council Resolution [BCR] in favour of opting into the FNEA, a statutory regime that legislates a process for First Nations to elect their Band Council members. After receiving the BCR, the Minister added the RPFN to the FNEA Schedule. An election followed on March 18, 2016. After the election results became known, Good filed an application under s 30 of the FNEA in the Federal Court to review the election. She went on to allege that the election and the election process contravened numerous sections of the FNEA. Good has applied for nine different declarations and an order that a new election be called as her only relief.

An election to be set aside requires meeting a statutory test under ss 31 and 35(1) of the FNEA. The two-part test requires the Applicant to establish that a provision was contravened and that the contravention likely affected the election result. Contraventions unlikely to have affected the result of the election will not trigger overturning the election. The requisite standard of proof for establishing this test is the balance of probabilities. In interpreting the FNEA, the Saskatchewan Court of Appeal noted that the presumption of regularity is reflected in the onus and evidentiary burden imposed on an applicant to demonstrate that a contravention has occurred that likely affected the result of an election. Once an applicant establishes a prima facie case, the burden switches to the respondent to refute it. The type of contravention is important and relevant as not every contravention will justify triggering the overturning of the election. This Court retains discretion on overturning elections, even in situations involving fraud or other forms of corruptions.

Evidence in a judicial review proceeding is dealt with by the Court through examination of the affidavits before it. In this matter, the record before the Court was complicated by numerous affidavits which included redacted affidavits, supplementary affidavits, and late filed affidavits. Many of the affidavits contain hearsay evidence, argument, and irrelevant or inflammatory comments. The Court found this unacceptable, inappropriate, and not a good use of judicial resources. Not only is such a record unfair to the Judge, but it is also unfair to the Respondents as the Respondents cannot know exactly what the relevant allegation is, or the specific evidence that supports the allegation.

A main allegation in many of the affidavits revolved around cash being given to band members by the Chief and Council at the time of the election and with respect to the appeal. Money given to assist band members in need has been the tradition for many years, and evidence was led by both parties to the effect that the RPFN is not a wealthy First Nation. Many of its members are in need of assistance for food, gas, and other necessities. People text or solicit the Chief and Council for cash and if the requests are deemed as legitimate, typically money will be given from their own pockets or accounts, and on occasion from a band account. This practice does not stop during election campaigning. The Court had to determine in each situation whether the contributions by the individuals were philanthropic, or for the purposes of vote purchasing. The Respondents provided a methodical refutation to these allegations.

There were also allegations of unlawful control of enough blank ballots to control the outcome of the election. The allegations had reasonable explanations given by the Respondents and the Court preferred their evidence. It is not a violation of the FNEA or any common-law principles to be asked to join a slate of candidates. This political maneuvering would appear to be what occurs in many elections, and is a recognized part of the political process. It was also alleged that fraud occurred from the overbroad use of Form 5D (Form to Request a Mail-in Ballot) and Form 8C (Declaration of Person Delivering a Mail-in Ballot Package) which allowed illegally obtained ballot forms to be placed in the ballot box, therefore controlling the outcome of the election. Walking in ballots and completing the 8C Form in itself is not evidence of fraud, especially given that most of the band members live off reserve. Good also alleged that people were given the paper with the slate of candidates that they were to vote for, but there was no evidence of this that was acceptable to the Court. There is no prohibition against entering a polling station with a slip of paper in and of itself.

The substantive allegation surrounding vote buying was supported by excerpted Facebook posts. This is not reliable evidence, as it is inherently suspect. An individual can post on Facebook that they have sold their vote, and another individual can “corroborate” a potentially false narrative without any underlying substrata of truth to the event. While it has been held that Facebook posts can result in legal action, such as in the employment context, it is highly distinguishable from individuals attempting to “set-up” others on social media platforms to establish the corrupt nature of elections on the RPFN. Good was not present at the actual election and her only knowledge was garnished from following social media. There was also alleged vote-buying at the Ramada Inn in the hospitality room put on by the Chief. Having a “come and go” hospitality room is not out of the ordinary for candidates in any and all political forums, and it is not found on these facts that the hospitality room or the events that occurred within comprised an inducement to buy a vote.

The remaining evidence does not support a contravention of the FNEA, and in the alternative, it does not affect the results of the election. There were several other affidavits that were not specifically addressed as that evidence was related to issues not relevant or not before the Court. The Court commented that this election was a complex web of intrigue and that the band is clearly divided in its loyalty and this toxic environment can never be in the best interests of the band.

Toney v Toney Estate, 2018 NSSC 179

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

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

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

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

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

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.

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.