George Gordon First Nation v HMQ in Right of the Province of Saskatchewan and Canada (AG), 2020 SKQB 90

Application dismissed. The Government of Saskatchewan was not subject to a duty to consult with the First Nation regarding further mineral dispositions, as this was satisfied with the processes stipulated in the Treaty Land Entitlement agreement.

Indigenous Law Centre – CaseWatch Blog

George Gordon First Nation [“GGFN”] initiated this action by statement of claim, naming as defendants Her Majesty the Queen in Right of Saskatchewan [“Saskatchewan”] and Her Majesty the Queen in Right of Canada [“Canada”]. It claimed various relief, including an interim and permanent injunction against the defendants from granting further mineral dispositions in the Jansen Area or Evaporite Area, and ten billion dollars in damages. Where an Entitlement Band requests acquisition of Crown minerals, the Ministry places a temporary freeze on the minerals pending its review of the request. If approved, the freeze will continue to allow the Band time to acquire the surface rights. This freeze period can continue for up to three years.

This application had a long and complex history, but it had the benefit of case management by an experienced justice of this Court. The parties involved in this application are sophisticated and represented by experienced and able counsel. To determine if the summary judgement process was suitable to dispose of this matter, the Court answered three questions in the affirmative: 1) can the judge to make the necessary findings of fact; 2) can the judge to apply the law to the facts; and 3) if this is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak v Mauldin, 2014 SCC 7). This matter was determined suitable for summary judgment. A trial was not required to determine the issues.

The allegation is that both Saskatchewan and Canada had and have a duty to consult with GGFN before Saskatchewan makes any mineral disposition on lands which could be selected by GGFN to satisfy its treaty land entitlement. Canada and Saskatchewan argue there was, and is, no duty to consult. Saskatchewan also argues that the GGFN Treaty Land Entitlement agreement [“TLE”] was intended to conclude the dispute and barred any further claims, including this one.

Canada had a duty to consult with and, where proved, accommodate GGFN and other TLE Bands with respect to land claims under Treaty No. 4. This was done through treaty land entitlement negotiations and agreements, including the GGFN TLE. Saskatchewan had no corresponding duty to consult under Treaty No. 4. Saskatchewan’s obligations under the TLE were to Canada, not GGFN.

Canada and Saskatchewan satisfied any duty to consult through the negotiations leading to the TLE Framework Agreement and, in the case of GGFN, the negotiations resulting in the GGFN TLE. If Saskatchewan had a duty to consult with GGFN about Crown mineral dispositions, that duty was satisfied by its practice of providing information to TLE Bands. GGFN’s claim of a duty to consult that extended to both notice of any applications and a right to supersede those applications went beyond any required consultation and accommodation. This would amount to a veto which the courts have rejected.

Even without a duty to consult, the honour of the Crown would still apply to Saskatchewan’s implementation of the GGFN TLE. Saskatchewan’s practices were fair and balanced. The honour of the Crown, which did apply, was respected. GGFN received the payments to which it was entitled from Canada and was able to obtain within the prescribed period its shortfall acres and other land, with minerals.

The claim of GGFN against Saskatchewan is therefore dismissed. Its claim against Canada was based on a duty of Canada to compel or assist GGFN to enforce its claim against Saskatchewan. The foundation for this claim is lacking. Canada does not exercise supervisory jurisdiction over the provinces with respect to the exercise of their constitutional authority. Nor did the GGFN TLE provide a contractual basis for Canada to compel Saskatchewan to provide GGFN with the requested notice of mineral dispositions and right of first refusal. GGFN’s claim against Canada was premised on a breach of duty by Saskatchewan. Since the claim against Saskatchewan is dismissed, there is no basis for a claim against Canada.

 

 

R v Duncan, 2020 BCSC 590

Application granted. The Indigenous accused is to be released on bail, subject to stringent conditions, on the tertiary grounds for pre-trial custody in excess of 90 days and concerns surrounding the COVID-19 pandemic in jails.

Indigenous Law Centre – CaseWatch Blog

This matter is a detention review hearing pursuant to s 525 of the Criminal Code. The 32 year old accused from Musqueam First Nation has been in pre trial custody for ten months. His custody relates to multiple alleged offences, including breaking and entering. As per the Gladue factors, his life reflects the intergenerational legacy of the horrific historical treatment of Aboriginal peoples in this country. The accused has a lengthy criminal history.

Counsel for the accused provided new evidence combined with a change in circumstances that warrants a re-visiting and reassessment of the restrictive and supervised treatment program at VisionQuest as a viable and proportionate alternative to the accused’s continued detention. It has culturally relevant programming and a high level of supervision.

The overarching question before the Court is whether the continued detention of the accused until his trial(s) is still justified on one or more of the three grounds specified in s 515(10) of the Criminal Code (R v Myers, 2019 SCC 18). The Court is satisfied that a release plan requiring the accused’s participation in VisionQuest’s isolated residential treatment program combined with strict mobility restrictions would be a culturally responsive and appropriate application of the Gladue factors in this particular case.

There also remains the question of the COVID-19 pandemic. Much of the case law that has developed thus far on this subject deals with the tertiary ground for detention. There are an increasing number of cases which have held that the risk of infection posed to inmates while incarcerated in detention centers awaiting trials is also a valid factor when considering the secondary ground for detention specified in s 515(10)(b) of the Criminal Code (R v TK, 2020 ONSC 1935).

The government is well aware of the risks involved and has implemented a number of measures designed to reduce the spread of the infection in jails. In this particular case Court already concluded that the accused’s proposed release plan satisfactorily addresses public safety concerns, however, COVID-19 concerns would have tipped the balance in favour of interim release rather than continued detention on secondary grounds. Although the break and enter offenses are serious, no physical violence was involved.

The accused is a drug addict with a criminal history of property crimes fuelled by his addiction. That addiction and most, if not all, of the disadvantages he has suffered in life are the product of the sad social problem that is the legacy of the mistreatment of Aboriginal peoples in Canada.

R v Lamb, 2020 NBCA 22

Leave to appeal granted and appeal allowed. The order of a new trial is set aside and trial judge decision is restored. A non-Indigenous woman that has a band status card does not give her the Aboriginal right to hunt under Section 35 of the Constitution Act.

Indigenous Law Centre – CaseWatch Blog

A non-Indigenous woman registered with an Indian Status membership from her late husband, self-represented and asserted she had a Section 35(2) Aboriginal right of the Constitution Act, 1982 to shoot a moose out of season, as she was using it to feed her family.

The fact she carried a status card and was considered a member of the Burnt Church First Nation community was not in question. The real issue was whether or not that status equated to the woman having the right to hunt moose out of the season, which is a recognized Aboriginal right guaranteed by s 35(2) of the Constitution Act, 1982.

The trial judge took the view, that in a situation such as this, the mere fact that a person holds a band card is insufficient to establish in and of itself their entitlement to constitutionally guaranteed Aboriginal rights. However, the Summary Conviction Appeal Court judge ordered a new trial. This Court determines that appeal was in error and restores the trial judge’s decision. The custodial sentence of seven days in jail and the fine of $2,000 are stayed.

 

 

 

 

 

British Columbia (Child, Family and Community Service) v MJK, 2020 BCPC 39

Application dismissed. It is in the best interests of the child to remain in the custody of her foster parents than with her biological father, as she is connected to the biological mother’s First Nations cultures and is fluent in their language.

Indigenous Law Centre CaseWatch Blog

The Director of Child, Family & Community Service [“Director”] has a continuing custody order made by this Court for a 6 year old child. The biological father, applies to set aside that order. However, there is no application before the Court to appoint him or anyone else to be the child’s guardian, and it is not clear who would be.

A biological parent is a guardian if and only if the biological parent “regularly cared for the child” (Family Law Act). The father has never had day-to-day care of the child, and so is not her guardian. The father’s application was opposed by the biological mother. Sadly, however, she recently died of a drug overdose and was unable to participate in the hearing. As well, the Director opposes the application. Three First Nations participated in the hearing, the Homalco and Klahoose First Nations, of which the mother was a member, and the Wuikinuxv First Nation, of which the father is a member.

The Federal Statute recognizes and affirms the right of First Nations to enact their own laws in relation to child custody and protection. None of the Wuikinuxv, Klahoose and Homalco First Nations have exercised that right. On an application to set aside a continuing custody order, the issue is not whether the child is in need of protection. Rather, the issues are: 1) whether there has been a significant change in the relevant circumstances since the continuing custody order was made; and 2) if so, whether cancellation of the continuing custody order is in the child’s best interest (Director of Child, Family & Community Service v AI, 2005 BCPC 620).

The father has clearly made significant progress with his substance abuse and anger- management issues, however, there is always a risk of relapse with every recovering addict and there is a history of violent behaviours. The Court is not in a position to quantify the risk of future family violence initiated by the father, but it is considered to be a real risk, which should not be ignored. Each of the governing statutes emphasizes the importance of fostering the child’s connection to, and participation in, the cultures of the First Nations of which she is a member.

The child has been an active participant in the Klahoose and Homalco cultures since she was 13 months old. Those cultures are fully-integrated aspects of her day-to-day life. She is fluent in their common language, and knows many of the traditional songs and dances by which the cultures are transmitted from generation to generation. She visits often with her maternal grandfather, with whom she speaks the language and participates in cultural activities. She engages in traditional food-gathering and preserving activities as part of her day-to-day life. The statutes do not allow the Court to prefer father’s interests at the expense of the child’s. The Court is of the opinion that the child’s best interests are served by remaining in her present placement, and that the application should be dismissed for that reason.

Kennedy v Carry the Kettle First Nation, 2020 SKCA 32

Appeal allowed of a judicial review that quashed a customary decision to remove opposing members on a First Nation’s election code tribunal. The Federal Court of Canada had exclusive original jurisdiction pursuant to s 18 of the Federal Courts Act to hear and determine that application. 

Indigenous Law Centre – CaseWatch BlogThe Appellants are members of the Cega-Kin Nakoda Oyate Tribunal [“Tribunal”], an election tribunal established by the Cega-Kin Nakoda Oyate Custom Election Act [“Code”]. They, like the Respondents, [“opposing members”], were appointed as Tribunal members by the Chief and Council of the respondent, Carry the Kettle First Nation [“CKFN”]. The Code provides that the Tribunal shall have five members.

In 2019, the Appellants purported to make orders of the Tribunal [“Orders”] at certain meetings. The only attendees at those meetings were the Appellants, as the opposing members refused to attend, and never approved the Orders. Subsequently a resolution was passed at a joint meeting of the Appellants and a group of Elders [“Elders’ resolution”]. The Elders’ resolution established rules for the removal of Tribunal members and removed the opposing members from the Tribunal. The CKFN applied to the Court of Queen’s Bench for judicial review, challenging the validity of the Orders and the Elders’ resolution [“Application”]. The Chambers judge who heard that judicial review quashed the Orders and the Elder’s resolution. In this matter the Appellants appeal that decision to this Court. It has been determined that this appeal must be allowed, as the Federal Court of Canada had exclusive jurisdiction to hear the judicial review application.

After s 74 of the Indian Act order was rescinded in 2018 for the CKFN, their Code came into effect. The definition of “council of the band” in s 2(1) of the Indian Act provides that when a band is not subject to a s 74 order, and is not named or formerly named in the schedule to the First Nations Elections Act, “council of the band” means “the council chosen according to the custom of the band, or, if there is no council, the chief of the band chosen according to the custom of the band”.

None of the parties takes issue with the proposition that the Code constitutes “custom of the band” within the meaning of s 2, although they differ as to what constitutes custom. It is clear that a recently adopted election code may be custom for this purpose, despite that the authority to enact such a custom election code is not granted by the Indian Act or other federal legislation (Pastion v Dene Tha’ First Nation, [2019] 1 CNLR 343 [“Pastion”]). The custom of the band is not limited, and indeed may bear little resemblance, to historic customs, practices or traditions that existed prior to the Crown’s assertion of sovereignty. What the Indian Act describes as ‘custom’ is often the written product of public deliberation within a First Nation and it may rely on the mechanisms of Western democracy, or provide for a mechanism that blends Western democracy and Indigenous tradition (Pastion). The Code is such a document regardless of whether, as Pastion suggests, it might be more apt to describe it as “Indigenous legislation” or “Indigenous law”. The Code is effective for purposes of the Indian Act regardless of whether that is so.

The Code does not contain provisions which deal expressly with the issues of removal or replacement of Tribunal members. The Appellants resolved to hold a joint meeting with the Nation Elders to deal with those issues. That meeting [“Elders’ Meeting”], attended by the Appellants, and 26 Elders, unanimously supported the Elders’ resolution, which established criteria and a process for removing and replacing Tribunal members. This Elders’ resolution also provided that the three opposing members were “removed as Tribunal members effective immediately”.

In this matter, the Appellants submitted that both the Tribunal and the Elders’ Meeting were federal boards, commissions or tribunals [“Federal entity”] within the meaning of s 18 of the Federal Courts Act [“FCA”]. The Chambers judge did not deal with the question of whether the Tribunal and the Elders’ Meeting were Federal entities. On an appeal from a judicial review, the task of an appeal court is normally to determine whether the Chambers judge selected the correct standard of review and correctly applied that standard (Kawula v Institute of Chartered Accountants of Saskatchewan, 2017 SKCA 70; Dr Q v College of Physicians & Surgeons of British Columbia, 2003 SCC 19). It is concluded that this appeal should be disposed of on the basis of the jurisdictional question, which raises two issues: 1) did the learned Chambers judge err by deciding that the Court of Queen’s Bench had jurisdiction to hear the Application pursuant to s 22 of the Code; and 2) did the Chambers judge err by failing to decide that the Federal Court had exclusive original jurisdiction to hear the Application pursuant to s 18 of the FCA?

In this case, the conditions necessary to engage the right to apply pursuant to s 22 have not been met because the Application was filed by the CKFN. That, in itself, is enough to determine the issue. The Tribunal has not yet made a final decision as to the results of the election, therefore the CKFN could not bring the Application in the Court of Queen’s Bench pursuant to s 22 of the Code, and the Chambers judge did not have jurisdiction to hear the Application pursuant to that section.

The same reasoning applies to the Elders’ Meeting. The question is not whether those recognized as Elders by the Nation are a Federal entity whenever they play a role in the CKFN’s affairs. The question is whether the Elders’ Meeting had the authority to pass the Elders’ resolution. If the Elders’ Meeting had the authority it exercised or purported to exercise, it was because that authority was the custom of the band, and like the authority of the Tribunal, was made effective in this context. The Tribunal and the Elders’ Meeting were both Federal entities within the meaning of s 18 of the FCA. The Chambers judge erred by failing to decide that the Federal Court had exclusive original jurisdiction to hear the Application pursuant to s 18 of the FCA.

Ziprick v Simpson Estate, 2020 BCSC 401

The Plaintiff’s action is allowed. Companies and investors that had invested in a mobile home park are trespassing on a First Nation’s land. They did not comply with the rules set out in the Indian Act, specifically regarding non-band members seeking to engage in business activities on Indigenous lands.

Indigenous Law Centre – CaseWatch Blog

This trial was the culmination of numerous legal and other battles spanning over 30 years involving a 40-acre parcel of land [“Lands”] and a mobile home park known as “Creek Run Park” located on a portion of the Lands. The Lands are part of the Okanagan Indian Band [“OKIB”]. Various construction companies and other investors involved with the development of Creek Run Park have changed names, but the relevant parties will be referred to together as the “Companies”.

Over the past 26 years, the Companies have never obtained a registered head lease from the Minister of Indigenous Services on behalf of the federal Crown [“Crown”] authorizing the Creek Run Park to operate on the Lands. The Indian Act requires such a head lease for Creek Run Park to be constructed and operated. The Companies proceeded with development, construction and significant expansion of Creek Run Park on the expectation that a head lease would eventually be granted to them by the Crown. It never was.

The Plaintiffs are supported by the OKIB, and also hold the right to possession of the Lands under certificates of possession issued by the Crown under s 20(1) of the Indian Act. The Plaintiffs state the Companies have no legal right or other authority to be on the Lands and are therefore trespassing and seek various forms of damages.

While acknowledging that they have no legal right of possession of the Lands and Creek Run Park, the Companies assert that they relied on repeated assurances and agreements that a head lease would be formally agreed to and registered. Alternatively, they counterclaim against the plaintiffs seeking damages and other forms of relief on the basis of the equitable principles of promissory estoppel, unjust enrichment and quantum meruit.

The background and history of this dispute is complex and lengthy. Much of it is not in dispute and include hundreds of documents admitted into evidence by agreement that helpfully explain the chronology of events. The key issue from which all other claims and counterclaims flow is whether or not the Companies are trespassing on the Lands. The combination of the relevant legislation, well-established common law and agreed facts leads to the inescapable conclusion that the Companies are trespassing on the Lands.

Section 91(24) of the Constitution Act, 1982, places reserve lands under federal jurisdiction to be held by the Crown for the use and benefit of Indian bands. The use and management of these lands is governed by the Indian Act. There are clear provisions and a long line of authorities that establish that only the Crown may grant interests in reserve lands. Any non-band member occupying reserve land without being granted an interest by the Crown is in trespass (Indian Act, ss 20–29, 37–41, 58(3); The Queen v Devereux, [1965] SCR 567).

Neither the band nor any band members may enter into legally binding lease agreements and to the extent that they purport to do so, the agreements are void. Such informal arrangements (commonly referred to as “buckshee leases”), are illegal and unenforceable. Before granting a lease of lands held under a certificate of possession, the Crown is required to consult with the band, and consider and give weight to concerns and views of the band. This is done to protect the collective interest of the band in reserve lands that continues despite possession being allocated to individual members (Tsartlip Indian Band v Canada (Minister of Indian Affairs and Northern Development), [2000] 3 CNLR 386). What occurred in this case is precisely why it is important that the process set out in the Indian Act needs to be followed. Failure to do so can lead to the kinds of disputes the parties in this case have been engaged in for 26 years.

The Plaintiffs have proven that the Companies have always been trespassers on the Lands and are entitled to the orders they seek including a tracing order. Considering the whole of the evidence, damages ought to be awarded in favor of the in the sum of $250,000. While on first blush, the evidence suggests that the Plaintiffs have been enriched by the existence of Creek Run Park and its infrastructure, a closer look clouds the point. Instead of properly maintaining the operation to acceptable standards, the Companies essentially ran the operation into the ground and syphoned off as much money as they could pending the predictable outcome of this case. Even if the Plaintiffs have received a benefit, there was no corresponding deprivation to the Companies because they had to build the infrastructure in order to move forward with the development of Creek Run Park, the cost of which they have likely recovered over the years many times over.

This case is a prime example of what can happen when parties hopeful of developing reserve lands, short-circuit or attempt to bypass the process and protections of the Indian Act. Creek Run Park should never have begun, or any continuation of its construction, without securing a properly registered head lease. The Plaintiffs’ action is allowed and the Companies’ counterclaim is dismissed in its entirety.

Neshkiwe v Hare, 2020 ONCJ 42

Motion granted for the M’Chigeeng First Nation to be added as a party to the proceedings in keeping with the best interests of the child. This matter will eventually involve constitutional questions surrounding the children’s custody.

Native Law Centre
CaseWatch Blog

Following the parent’s separation, an Indigenous mother left Toronto with her two children. Shortly after the father, who is also Indigenous but from a different community than the mother, launched an ex parte motion for temporary custody, that was granted. The ex parte motion ordered the children’s return to Toronto and for police assistance from various police forces to enforce this Court’s order. The mother and M’Chigeeng First Nation [“MFN”] advised the Court they intended to challenge the Court’s jurisdiction to make any orders for custody or access, asserting exclusive jurisdiction of the children.

In the meantime, the Court’s ex parte Order had not been followed. The father initially only served the Order for enforcement on UCCM Anishnaabe Police Service [“UCCM”] and did not serve it on OPP until the term for police enforcement was about to expire. The mother nor the MFN had prepared Notices of Constitutional Questions, while still raising a challenge and taking steps outside the Court consistent with that position. On December 5, the Court directed all Constitutional Question were to be served and filed before December 19 and granted leave to MFN to bring a motion to be added as a party to this proceeding. The enforcement term was stayed on a without prejudice basis.

MFN is asserting exclusive jurisdiction of the children. Both the mother and the MFN have advised the Court that they intend to challenge the Court’s jurisdiction to make any orders for custody or access. They anticipated advancing this claim based on an existing Aboriginal and Treaty right under s 35 of the Constitution Act, 1982. However, neither has been pleaded, nor any Notices of Constitutional Question been served or filed. The mother also took the position that the Court lacked jurisdiction based on the application of an existing By-Law and a Band Council Resolution, both of which had been passed by the MFN, as an alternative legal basis from the anticipated section claims.

Until such arguments could be sorted out, a practical problem unfolded that still exists. The mother indicated to the Court that she would not comply with the Court’s Order. The MFN prohibited the father from coming onto its territory. UCCM refused to enforce the Order, as it had been instructed by the MFN to act in that fashion. The OPP, however, would enforce the Order, but brought the Court’s attention to certain potential negative consequences for the Court to consider. It was suggested to suspend the operation of the police enforcement term until the legal questions are resolved.

The Court has issued another Endorsement containing further directions for the conduct of this case and has asked that a litigation plan be presented. Regarding the police enforcement term, the Court stayed enforcement, which was about to expire anyway, on a without prejudice basis.

The overarching consideration in deciding to add the MFN as a party to the proceedings was in keeping with the best interests of the children. It was not seriously disputed that the First Nation should be added as a party. The s 35 claims have both individual and collective aspects to them. Adding the First Nation to the proceedings was also in the best interests of the children as they have a position to take and to offer evidence surrounding these particular children. Lastly, they have a legal interest. Once that position has been clarified after a full hearing, then they may call into question the Court’s jurisdiction.

Yahey v British Columbia, 2020 BCSC 278

Application granted. Blueberry River First Nations is not subject to paying the hearing fees regime in this trial. The Court grants a declaration that Item 10 of Schedule 1 in Appendix C of the Supreme Court Civil Rules is of no force and effect insofar as it requires Indigenous peoples who are seeking to uphold or protect their s 35(1) Aboriginal and/or treaty rights from alleged infringements, and who are required to do so through a trial, to pay daily hearing fees to the Crown as the defendant in any such action. If this Court is wrong in reading down the hearing fee provision in the way set out above, then it would exercise its discretion contained in Item 10 of Schedule 1 in Appendix C to order the Crown to pay the hearing fees in this action.

Indigenous Law Centre – CaseWatch Blog

This application arises in the context of an action brought by the Blueberry River First Nations [“Blueberry”] against Her Majesty the Queen in Right of the Province of British Columbia [“Crown”] alleging infringements of their rights under Treaty 8. It addresses the cumulative impacts of a variety of Crown authorized activities occurring in their traditional territory. In this application, Blueberry seeks to be relieved from paying the daily hearing fees prescribed by the Supreme Court Civil Rules [“Rules”] and set out in Appendix C, Schedule 1, at Item 10 for the duration of the trial of the underlying action.

The underlying trial is currently set for 160 days. For Blueberry, that means paying over $120,000 in hearing fees to the Crown. Rule 20-5(1) provides for a waiver of fees in certain circumstances. Blueberry seeks an order under Appendix C, Schedule 1, Item 10 of the Rules that the Crown defendant pay the daily hearing fees; or, in the alternative, a constitutional exemption from paying the hearing fees based on s 35(1) of the Constitution Act, 1982; or, if necessary, a declaration that the hearing fees are constitutionally inapplicable under s 52(1) of the Constitution Act, 1982 to the extent they are inconsistent with s 35(1). They do not seek a waiver of fees based on undue hardship under Rule 20-5(1).

The Crown, as the defendant in this s 35(1) treaty rights claim, cannot charge the plaintiff First Nations substantial fees for access to the court to seek to enforce the Crown’s own treaty obligations. This, Blueberry argues, is inconsistent with the honour of the Crown and the Crown’s duties under s 35(1) to promote reconciliation.

Reconciliation takes place both inside and outside the courtroom. While consultation and negotiation are the primary methods of reconciliation, courts also have a role to play. The parties will not always be able to resolve the issues, and courts will be called on to determine rights and the attaching obligations. In the Aboriginal context, when considering statutes or rules that may bar, prevent or impede Indigenous peoples’ ability to pursue their claims, reconciliation must weigh heavily in the balance (Manitoba Métis Federation Inc v Canada (AG), [2013] 2 CNLR 281).

None of the cases relied on by the Crown dealt with s 35(1) in the context of hearing fees, or considered the impacts on Crown-Indigenous relations, the honour of the Crown, or reconciliation more broadly from charging such fees. This is the first case to consider the constitutionality of hearing fees from that perspective.

This Court does not agree with the Crown’s argument that recognizing the uniqueness of s 35(1) rights, and relieving litigants who seek to advance these rights of the obligation to pay hearing fees, would somehow be establishing a preferential system of access to justice. The charge of a substantial fee, which ultimately is for the Crown’s own benefit, to access the court to seek to uphold a constitutionally protected treaty right is antithetical to the purpose of s 35(1), the principle of honour of the Crown, and the objective of reconciliation. The fee creates an additional obstacle for Indigenous litigants whose claims often require long trials. It is apparent that requiring litigants who are pursuing cases dealing with s 35(1) to pay a hearing fee is in effect an advance that is paid by Indigenous peoples.

The requirement to pay daily hearing fees creates inequality in litigation in these circumstances and is inconsistent with the shared responsibility for reconciliation which is the overarching objective of s 35(1). The fees create unfairness, imposes financial obstacles to litigation (which can become significant in long trials), and reinforces the idea that the promise in s 35 still comes with strings attached. The Court can draw a legitimate distinction for Indigenous peoples in these circumstances based on the Crown’s unique obligation to Aboriginal people, and the unique status of Aboriginal and treaty rights in the Constitution Act, 1982.

Dilico Anishinabek Family Care v Her Majesty the Queen (Ontario), 2020 ONSC 892

Motion for stay dismissed. The applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Minister’s Directive and Designations is not granted.

Indigenous Law Centre CaseWatch Blog

This motion is for a stay. These proceedings involve a long-standing jurisdictional dispute between two representative Indigenous groups in northwestern Ontario over who should be permitted to provide child and family services in the City and District of Thunder Bay. The Minister of Children, Community and Social Services [“Minister”] issued designations authorizing three children’s aid societies to provide the full range of child and family services in Thunder Bay. At the same time, the Minister issued a directive providing that: a) Dilico Anishinabek Family Care [“Dilico”] will provide services to all Indigenous children and families other than Indigenous children from First Nations affiliated with Tikinagan Child and Family Services; b) Tikinagan will provide services to children and families from Tikinagan-affiliated First Nations; and c) the Children’s Aid Society [“CAS”] of Thunder Bay will provide services to non-Indigenous children and families [“Directive and Designations”].

Dilico was incorporated in 1986 by the Robinson Superior Treaty First Nations and granted authority in 1994 by a group of 12 First Nations to provide child protection services to Indigenous children and families in Thunder Bay. Dilico has operated as a designated CAS since 1995 under what is now the Child, Youth and Family Services Act [“CYFSA”]. Initially, Dilico’s designation restricted it to exercising powers as a CAS only over those members of the Dilico-affiliated First Nations residing in the City and District of Thunder Bay, together with powers over all children residing on specified reserve lands. In 2012, Dilico entered into a memorandum of understanding [“MOU”] with the Thunder Bay CAS. Under the MOU, Dilico assumed child protection jurisdiction over not only Dilico-affiliated First Nation children, but all Indigenous children in Thunder Bay.

Tikinagan Child and Family Services [“Tikinagan”] was incorporated in 1984 through the efforts of the 49 Chiefs of Nishnawbe Aski Nation which represents many First Nations across northwestern Ontario. In 1986, Tikinagan was given approved agency status by the Ministry and, in 1987, received its designation as a CAS. Tikinagan’s geographical area includes most of northwestern Ontario including parts of the District of Kenora and the northwest portion of the District of Thunder Bay. Tikinagan has the authority to offer the full range of child and family services within its territorial jurisdiction.

Dilico and the Fort William First Nation brought applications for judicial review seeking to set aside the Directive and Designations of the Minister on various constitutional and administrative law grounds, which will be heard at a later date. The applicants’ also motioned for a stay of the Directive and Designations; below are the reasons for the dismissal.

The court must consider three cumulative factors in determining whether to grant a stay: 1) whether there is a serious issue to be tried; 2) whether the moving party would suffer irreparable harm in the absence of a stay; and 3) whether the balance of convenience as between the parties favours granting the stay, in the sense that the harm that will be suffered by the moving party if the stay is not granted outweighs the harm that will be suffered by the responding party if it is (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]).

Cases involving child welfare or child custody require a modification to this approach to the three-part RJR-MacDonald test. The overriding consideration in such cases is the best interests of the child. In this matter, the Minister, the Thunder Bay CAS and the two Indigenous CASs operate within a statutory framework which makes the best interests of the child paramount. Section 1(1) of the CYFSA provides that the “paramount purpose of this Act is to promote the best interests, protection and well-being of children.” The applicants have, asserted grounds for judicial review of the Directive and Designations which are not frivolous. There are serious issues which can only be resolved in a full hearing. The applicants have, therefore, satisfied the first aspect of the RJR MacDonald test.

The Court concluded that the applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Directive and Designations is not granted. This conclusion is sufficient to dispose of the motion. However, there are other factors which tip the balance against a stay in any event. The public interest also includes a public interest in the legitimacy of public institutions. The public interest therefore includes a high level of respect for the decisions of the legislative and executive branches of government. The courts have limited institutional competence to interfere with those decisions. The courts have a supervisory role to play, but should be wary of usurping legislative and executive roles, particularly where they lie at the policy end of the decision-making spectrum (Hupacasath First Nation v British Columbia (Minister of Forests), 2005 BCSC 345; RJR-MacDonald).

At the end of the day, the balance of convenience weighs in favour of refusing the stay and, pending the disposition of the applications for judicial review, advancing the goal of providing child welfare services to Tikinagan-affiliated children and their families in a culturally appropriate manner. The applicants’ onus of showing that the balance of convenience favours granting the stay has also not been discharged.

 

Solomon v Garden River First Nation, 2019 FC 1505

Judicial review granted. There was a breach of procedural fairness in the process followed by the Chief and Council that led to the Applicants being banished from Garden River First Nation. The matter is remitted for reconsideration.

Indigenous Law Centre – CaseWatch Blog

The Chief and Council of Garden River First Nation [“GRFN”] issued a series of Band Council Resolutions [“BCRs”] banning Kody John William Solomon and Ralph Justin Romano [“the Applicants”] from GRFN territory. On this application, the Applicants seek judicial review of these BCRs and the process undertaken by the Chief and Council.

GRFN is governed by an elected Chief and Council who are responsible for the governance of the Nation and its approximately 3,000 members. One of the applicants have resided there his whole life, another non-member has lived on GRFN for 19 years with his member spouse and teenage daughter. The Applicants were banished as they had been charged with offences under the Controlled Drugs and Substances Act, and that “illegal drugs have caused great harm to Garden River and its members,” and “allowing [the Applicants] to remain in Garden River may cause harm to Garden River and its members or endanger public safety.”

There is no dispute that the initial 2018 BCRs were issued by GRFN’s Chief and Council without the opportunity for any input from the Applicants, nor did they have notice. The right to a fair hearing requires that the Applicants have adequate notice of the case against them and sufficient opportunity to respond before a decision adverse to their interests was made (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9). Given the serious consequences of the banishment decisions, the degree of procedural fairness owned to the Applicants is heightened.

It appears GRFN’s Council itself recognized flaws in the process undertaken. By-Law 20 was adopted subsequently after the BCRs in 2018. The major differences from By-Law 13 are that it allows the Band Council to banish members of GRFN and persons deemed to be threats to the peace and safety of the Band or other people lawfully on the reserve. By-Law 20 provides a process that is clearly tailored to address the particular circumstances of the Applicants, a member and a non-member of GRFN who were charged with a criminal offence. However, there was still no reconsideration of the original decision to banish the Applicants in the BCRs issued in 2019. Rather it appears the GRFN Council simply passed the new By-Law and considered it to have rectified any issues with the previous BCRs from 2018.

The case law is clear that issues of procedural fairness are considered on a correctness standard (Canadian Pacific Railway Company v Canada (AG), 2018 FCA 69). The test for assessing if the process was fair, is to ask whether a right-minded person, applying themselves to the question and obtaining the required information, would think it is more likely than not that the decision-maker did not decide fairly (Baker v Canada (Minister of Citizenship and Immigration), 1999 SCC 699 [“Baker”]). The factors outlined in Baker for assessing procedural fairness include: 1) the nature of the decision and the process followed in making it; the nature of the statutory scheme; 2) the importance of the decision to the individuals affected; 3) the legitimate expectations of the person challenging the decision; and 4) the choice of procedure made by the agency itself.

Considering that By-Law 20 appears to have been crafted to address the specific circumstances of the Applicants, they had a legitimate expectation that the process laid out in By-Law 20 would be followed. When the Baker factors are considered in conjunction with the reasonable apprehension of bias, it is clear that there was a breach of the Applicants’ right to procedural fairness. The evidence demonstrates a continuing course of conduct on the part of GRFN’s Council who never undertook the promised reconsideration of the original banishment decision. The 2019 BCRs were simply a reissue of the original 2018 banishments under the new By-Law. The decision-making process that led to the Council’s 2019 decision was procedurally unfair because the Council made up its mind in 2018. From that point, GRFN Council defended its original decision rather than engage in a true reconsideration.