Linklater v Thunderchild First Nation, 2020 FC 899

The Thunderchild First Nation Government is enjoined from continuing with and holding a by-election for Headman in order to fill the vacant position left by the removal of the Applicant, until the determination of his application for judicial review or further Order of the Court.

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The Applicant, Mr. Linklater, was elected Headman on the Thunderchild First Nation Council in late 2018. He was required to reside on Thunderchild First Nation reserve lands or Treaty Land Entitlement lands, or to move there within 30 days of the election (Thunderchild First Nation Election Act [“Election Act”]). Mr. Linklater considers this residency requirement to be contrary to s 15 of the Charter since it represents an unjustified violation of his right to equality as a citizen of a First Nation living off reserve. He also considers it to be a remnant of colonial structures, and of similar discriminatory provisions once in force in provisions of the Indian Act that were found unconstitutional by the Supreme Court of Canada (Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 [“Corbiere”]).

In 2019, a citizen of Thunderchild First Nation, asked the Thunderchild First Nation Government to remove Mr. Linklater from his position for failure to meet the residency requirement. It responded that it had no authority to do so because it also considered the residency requirement to be contrary to the Charter. Along with another citizen of Thunderchild First Nation, applications were brought to the Thunderchild First Nation Appeal Tribunal [“Tribunal”] to have Mr. Linklater removed from his position. Among other arguments, it was noted that a 2019 referendum in Thunderchild First Nation proposing various amendments to the Election Act, including the removal of the residency restriction, had not passed.

In 2020, the Tribunal issued a decision removing Mr. Linklater from his position for failure to meet the residency requirement. In its decision, the Tribunal decided it did not have jurisdiction under the Thunderchild First Nation Appeal Tribunal Act [“Tribunal Act”] to strike sections of the Election Act because they violate the Charter. It therefore did not address Mr. Linklater’s Charter arguments. The Tribunal ordered that a by-election be held as soon as possible to fill the position vacated by its removal of Mr. Linklater. Mr. Linklater has challenged the Tribunal’s decision on the application for judicial review. He alleges that the Tribunal did have jurisdiction to decide his Charter arguments, and that it should have decided that the residency requirement was unconstitutional. In this motion, Mr. Linklater seeks an injunction stopping the by-election until his application for judicial review can be heard and decided.

This Court orders that the by-election to fill the vacant seat for Headman on the Thunderchild First Nation Council be halted while Mr. Linklater’s Charter challenge to his removal from that seat is before the Court. This Court should not lightly interfere with elections directed by First Nations governments and tribunals. There is significant consideration given, however, to the fact that Mr. Linklater’s request is not opposed by either the Thunderchild First Nation Government or those who requested his removal. There is no other Thunderchild First Nation decision-maker who can grant the relief sought. This order does not grant Mr. Linklater’s challenge to his removal, nor does it reinstate him in his role as Headman, either temporarily or permanently. This order only seeks to avoid the harm that would arise from someone else being elected Headman while the question of Mr. Linklater’s removal remains outstanding.

This Court has confirmed that the Applicant has met the three-part test that applies to injunctions seeking to halt Indigenous elections (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311; Awashish v Conseil des Atikamekw d’Opitciwan, 2019 FC 1131). Mr. Linklater has already lost his seat. He does not on this motion seek reinstatement; he seeks that remedy among others on the underlying application for judicial review. However, if another Headman is elected to that seat, Mr. Linklater may be excluded from acting as Headman until the next election in late 2022, regardless of the outcome of this application. This would amount to irreparable harm resulting from the by-election itself, over and above any harm already incurred as a result of the order removing him from his seat as Headman.

The balance of convenience favours granting the requested injunction. The particular harm to Mr. Linklater if the injunction is not granted is significant. The broader interests of self-governance and democratic principles are of fundamental importance, but are attenuated in the particular circumstances of this case.

West Moberly First Nations v British Columbia, 2020 BCCA 138

Appeal dismissed. There is no reversible error of law or fact demonstrated in the trial judge’s analysis of a long-standing dispute over the western boundary of Treaty 8.

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In 2005, the West Moberly First Nations, Halfway River First Nation, Saulteaux First Nations, Prophet River First Nation and Doig River First Nation [“Respondent FNs”] commenced the underlying litigation and are the respondents on appeal. The interest of the Respondent FNs in obtaining the declaration granted stems from their position that the Treaty gives them hunting, trapping and fishing rights [“harvesting rights”] throughout a tract of land defined in a “metes and bounds clause” of Treaty 8 [“tract”]. However, whether the Treaty gives them such rights throughout that tract was not the subject matter of the litigation at trial.

Between 1871 and 1921, the Dominion of Canada (“Canada”) entered into 11 “numbered treaties” with Indigenous groups throughout the country. This appeal concerns Treaty 8, which was signed on June 21, 1899, at Lesser Slave Lake in the District of Athabasca. What the original signatories to the Treaty meant by the phrase “the central range of the Rocky Mountains” has been a vexing issue for over 100 years. In the underlying litigation, Respondent FNs represent descendants of Indigenous groups who signed adhesion agreements with Canada or individuals who were added to the rolls of the Treaty. The plaintiffs applied for a declaration that the western boundary of the tract described in the Treaty referred to the height of land along the continental divide between the Arctic and Pacific watersheds, approximately 48,000 square miles. The trial judge concluded this clause referred to the Arctic-Pacific Divide, which is located within the Rocky Mountains up until the 54th parallel north, then diverges west.

The dissent stated that no declaration was available in the circumstances of this case or in the alternative, the only declaration available was one stating the relevant provision refers to a watershed of the Rocky Mountains. The dissent views that declarations must affect a legal right and since it is unclear from the text of the Treaty alone that any rights are tied to the provision, and consequently, the declaration should not have been granted.

The majority favoured that the declaration of the trial judge is upheld, and that there was no error in law or fact in his judgement. The requested declaration clarifies legal rights and obligations and the trial judge had discretion to issue it. The Court should not interfere with the conclusions he reached from his vantage point at trial. There is no obligation in the law of declaratory relief to litigate the range of a declaration’s effects. The question is simply whether the declaration will have practical utility.

Regardless of the right or obligation being interpreted, if there is a possibility it could be affected by the location of the western boundary, the parties will be assisted by knowing that boundary. The Treaty 8 First Nations who assert rights within the tract may find the declaration clarifies their ability to protect those rights through the existing Treaty, rather than as s 35 rights stemming from historic use and occupation.

As well, under the majority’s view, the honour of the Crown may give rise to a remedy if this was breached in the setting of the boundary, but it should not change the interpretation of the evidence. There is ambiguity over whether Treaty 8 entitles signatories to hunt, trap, and fish throughout Treaty 8 or whether Treaty 8 only guarantees this right within their traditional territory (i.e. a subset of the Treaty). This again ties back into the effect of Treaty 8 on non-treaty First Nations in BC whose territories are covered by the western boundary accepted at trial. If Treaty 8 only guarantees harvesting rights within the traditional territories of the signatory First Nations then it will have no effect on the First Nations in the Rockies who were never consulted.

 Another legal issue discussed, was the relevance of the Indigenous perspective on treaty versus the trial judge’s heavy emphasis on the Crown’s perspective. All judges on appeal seem to agree that this is important but the majority decision found there to be very little evidence of the Indigenous perspective, hence the trial judge’s emphasis on the Crown’s perspective.

 

Buck v Canada (AG), 2020 FC 769

The Federal Court dismissed an application for an interlocutory injunction against the Minister of Crown-Indigenous Relations and Northern Affairs Canada to prevent the execution of a proposed specific claim settlement with the Enoch Cree Nation until a final determination of an action against Enoch and the Crown. The Court held that it has no statutory jurisdiction to issue an interlocutory injunction against the federal Crown in relation to an action as opposed to an application for judicial review. The Court also held that it would not have issued an injunction even if it had the jurisdiction to do so, finding no irreparable harm to the plaintiffs and that the balance of convenience favours reconciliation through implementation of the settlement agreement.

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Enoch is a First Nation and a band as defined in s 2(1) of the Indian Act, with over 2200 members. In 1942, Canada leased a portion of Enoch Reserve lands, to the Department of Munitions and Supply [“DMS”] for use as a practice bombing range.

In 2008, Canada enacted the Specific Claims Tribunal Act pursuant to which First Nations could file specific claims with the Tribunal as specified therein. A specific claim submitted by a First Nation can be accepted for negotiation by Canada. The negotiation and settlement of a specific claim avoids recourse to adjudication before the Specific Claims Tribunal. The Specific Claims Policy establishes the principles and process for resolving specific claims through negotiation and that such claims can only be submitted by a First Nation and only First Nations can file specific claims with the Tribunal.

Enoch submitted a specific claim in respect of the use by DND of Enoch Reserve lands as a bombing range [“Enoch Specific Claim”]. The Enoch Specific Claim alleged breaches of fiduciary duty and breaches of the 1927 Indian Act. Canada and Enoch reached mutual agreement as to the settlement of the Enoch Specific Claim that included the proposal of a significant payment by Canada to Enoch in full and final settlement of the Enoch Specific Claim [“Proposed Settlement Agreement”]. In 2020, Enoch held a ratification vote at which the large majority of Band members who voted did so in favour of accepting the Proposed Settlement Agreement, and subsequently passed a Band Council Resolution accepting the Proposed Settlement Agreement.

The Plaintiffs are members of Enoch. In 2019, the Minister received a letter stating the Enoch Specific Claim included land held by the McGillis family by way of a Certificate of Possession [“CP”]. Amongst other things, it stated that Enoch had recently engaged directly with the McGillis family, but despite a letter from their counsel to the Department of Justice outlining what the Plaintiffs viewed as the legal obligations of the Crown to the CP holders, there had been no direct engagement with the Crown. It is alleged that Enoch and the Crown could not proceed with the Enoch Specific Claim settlement without reaching prior agreement with the Plaintiffs as to their interests in the land held under the CP.

The Minister advised that Canada’s negotiations with Enoch were undertaken on a confidential basis, and for that reason, the Minister was unable to meet with the Plaintiffs to discuss them. However, that through the specific claims negotiations, Canada encourages First Nations elected leadership to share information about the claim with all community members. The Plaintiffs’ view is that Canada should engage directly with the Plaintiffs. Accordingly, Canada continued to urge the Plaintiffs to direct their claims to Enoch.

The Plaintiffs filed a Statement of Claim in this Court, commencing an action against Canada alleging ongoing trespass caused by alleged munitions scraps on the lands that were leased to DMS for use as the bombing range, including those lands held under the CP. Subsequently, the Plaintiffs filed an Amended Statement of Claim asserting that Canada breached its fiduciary duties owed to the Plaintiffs with respect to the CP Lands, including by finalizing the terms of the Proposed Settlement Agreement to the prejudice of the Plaintiffs. They further alleged the tort of conversion on the basis that as holders of the CP, only they can sue for trespass, seek remediation and receive damages and that Enoch was not authorized to make the Specific Claim in relation to the CP lands.

The determinative issue is this matter is whether this Court has jurisdiction to grant the requested injunctive relief. There is no underlying application for judicial review that could be the basis for the Court’s jurisdiction to grant an interlocutory injunction. There is a clear line of authority standing for the proposition that where an action is brought against the Crown, s 22(1) of the Crown Liability and Proceedings Act will, in the normal course, preclude the granting of an injunction against the Crown. This Court has no jurisdiction to grant an injunction in that circumstance as its jurisdiction is determined by ss 18(1) and (3) of the Federal Courts Act, which permits it to grant injunctive relief only where the underlying proceeding is an application for judicial review.

The lack of jurisdiction of this Court to grant the motion seeking an injunction entirely disposes of the Plaintiffs’ motion. However, even if the Court had jurisdiction, it would not have granted the injunction as the Plaintiffs failed to meet the requirements of the three part test (R v Canadian Broadcasting Corp, 2018 SCC 5 [“Broadcasting”]). Although the Plaintiffs demonstrated a “serious question to be tried”, they could not succeed on the second and third branches. They did not establish that they would incur irreparable harm. In preventing the settlement and the step toward reconciliation that it represents, thereby delaying or precluding the compensation its resolution would afford to Enoch’s members collectively and individually, is not in the public interest and tips the balance of convenience in favour of Enoch and the Attorney General. The Plaintiffs would not suffer the greater harm in that event.

Quebec (AG) v Picard, 2020 FCA 74

Appeal dismissed. The Court of Appeal upheld the Federal Court’s finding that the pension plan for Indigenous police officers employed by several band councils in Quebec falls under federal jurisdiction and is a plan registered under the federal Pension Benefits Standards Act.

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The First Nations Public Security Pension Plan [“Plan”] was first registered by the Office of the Superintendent of Financial Institutions [“OSFI”] in 1981 under the authority of the Pension Benefits Standards Act [“PBSA”]. The purpose of that Plan is to provide retirement benefits to the police officers and special constables of a number of police forces of First Nations member communities serving Indigenous communities. The Plan currently covers the police forces under the responsibility of 14 band councils in Quebec.

The police services of the band councils that are members of the Plan are all subject to policing services agreements reached between each of the band councils, the Crown, as represented by the Minister of Public Safety and Emergency Preparedness, and the Government of Quebec. These agreements are made under the First Nations Policing Program [“Program”]. The federal government covers 52% of the costs, and the provincial government covers 48%. Tripartite agreements of the type at issue in this case are apparently preferred by the vast majority of the communities.

OSFI is responsible for regulating and supervising private federal pension plans registered under the PBSA in order to contribute to public confidence in the Canadian financial system (Office of the Superintendent of Financial Institutions Act). To be registered under the PBSA, a pension plan must primarily relate to employment in connection with the operation of any work, undertaking or business that is within federal legislative authority (PBSA). When this is not the case, the supervision of the plan is the responsibility of the provincial authorities.

The Federal Court found that the police officers and special constables hired and remunerated by band councils under a tripartite agreement that also involves the federal and Quebec governments are employed in a federal work, undertaking or business. Consequently, the Federal Court expressed the view that their pension plan was a plan registered under the PBSA and that OSFI should continue to administer the Plan.

This Court is of the view that the Federal Court did not err in allowing the application for judicial review and in declaring that the police officers and special constables hired and remunerated by band councils that are members of the Plan are employed in a work, undertaking or business within federal jurisdiction. Consequently, the PBSA and its Regulations apply to the Plan because the participating employees are employed in “included employment” within the meaning of the PBSA.

In contrast to the Indigenous police officers employed by the Nishnawbe-Aski Police Service Board at issue in a previous Federal Court of Appeal decision, the Indigenous police officers in this matter are employed directly by band councils and associated with the governance of their First Nations, therefore their labour relations are federally regulated.

RF v Kina Gbezhgomi Child and Family Services, 2020 ONCJ 366

Counsel for a foster parent in a child protection matter was removed from the record based on his prior representation of the child protection agency respondent. The Court took into account the overall negative relationship between Indigenous peoples and the justice system in relation to the need to respect an Indigenous person’s choice of counsel, but held that intervention is necessary in clear cases of conflict in order to mitigate this crisis of confidence. 

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An Anishinaabe child [“NLJ”], a registered band member of Wiikwemkoong Unceded Territory [“Wiikwemkoong”], was removed at birth from the care of her parents by the Children’s Aid Society of Oxford County [“CAS”] and a protection application commenced. The child has significant physical needs that require specialized care both at home and at school. NLJ was placed with the applicant [“RF”] on this protection application proceeding, and who was, at that time, a recognized foster home and the placement was monitored by the CAS. The file was ultimately transferred to Kina Gbezhgomi Child and Family Services [“KGCFS”] and the applicant continued to provide a foster placement for NLJ.

NLJ was made a crown ward under the Child and Family Services Act and remained in RF’s care. Wiikwemkoong passed a Band Council Resolution which provided that NLJ remain in the home of RF pursuant to a Customary Care Agreement. Wiikwemkoong and KGCFS have a “Joint Protocol” [“Protocol”] with respect to the provision of child protection services, which includes Customary Care. The Protocol outlines the relationship between Wiikwemkoong and KGCFS and their inherent right to be involved in decision making on child protection issues.

Mr. Parisé was the primary lawyer retained by the respondent society, KGCFS, for child protection matters when the Customary Care Agreement was finalized. Because of the Protocol, KGCFS is necessarily a party to that agreement. In 2016, the Crown Wardship Order was terminated following a status review application commenced by KGCFS. The existence of the Customary Care Agreement was the basis for the application. Of note, Mr. Parisé was counsel for KGCFS at the time and counsel of record in that proceeding.

The child remained in the home of RF under this Agreement until 2019 when NLJ was removed by KGCFS and placed in another customary care home. The Customary Care Agreement between KF, Wiikwemkoong, KGCFS, and the biological parents of NLJ was terminated sometime thereafter. It was at this time that Mr. Parisé started acting as counsel of record for RF. Mr. Parisé represented RF who filed a status review which was ultimately dismissed without prejudice to the applicant bringing an application under s 81(4) of the Child, Youth and Family Services Act [“CYFSA”]. RF then filed a protection application. KGCFS brought a motion to remove Mr. Parisé as counsel of record a month later, which was the first time the issue of potential conflict was raised with the Court.

On March 16, 2020, the Office of the Chief Justice released a Notice to the Public ordering the suspension of normal court operations in light of the COVID-19 pandemic. As a result, RF’s application was adjourned, and with it, KGCFS’s motion. Subsequently, the Customary Care placement was revoked when the respondent mother withdrew her consent but did not seek custody at that time. NLJ no longer had a customary care placement and KGCFS commenced their own protection application without naming RF as a party. After dealing with the initial removal to a place of safety, the court remanded both matters to the same date to be spoken to in order to deal with jurisdictional issues arising out of the fact that there are now two separate child protection applications dealing with the same child, and which do not have all the same parties. The parties on both applications agreed that this motion would need to be heard first before other substantive issues could be addressed.

The jurisdiction to remove counsel is found in the inherent right of the court to determine “to whom it will give an audience” and that the threshold for court intervention should be high (Windsor-Essex Children’s Aid Society v BD, 2013 ONCJ 43). The test that the courts have developed for determining if counsel should be removed is whether the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur (MacDonald Estate v Martin, [1990] 3 SCR 1235 [“MacDonald”]).

Counsel of choice is a foundational principle in the Canadian justice system. It is well established that a litigant should not be deprived of their counsel of choice without good cause. However, this principle is not absolute. The issue in this motion is whether a lawyer who acted on behalf of a society on a child protection file can now represent one of the other parties in a subsequent protection application. The Court determines in this case, that the conflict is one which should disqualify the lawyer from continuing to act on the matter and the lawyer be removed from the record. The courts owe a duty to the Indigenous people they serve to intervene in the clear cases of conflict, in order to mitigate this crisis of confidence.

Southeast Collegiate Inc v Laroque, 2020 FC 820

Application allowed. A Canada Labour Adjudicator committed an error of law by failing to apply the correct legal test to determine if he had jurisdiction to hear an employee’s wrongful dismissal complaint. He erroneously concluded the presumption of provincial regulation of labour relations had been rebutted based on a provision of the Indian Act, the identity of the students, and the program’s emphasis on cultural sensitive education.

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The Court allowed an application for judicial review from a Canada Labour Adjudicator’s decision that the Southeast Collegiate Inc. is a federal undertaking to which the Canada Labour Code [“CLC”] applies. This corporate entity was created by the Southeast Tribal Council to deliver culturally sensitive high school education to Indigenous students from across Manitoba.

The Respondent complained under the CLC that she was wrongfully dismissed. She therefore bore the onus to adduce evidence to rebut the presumption of provincial authority. The Adjudicator addressed the two issues put forward regarding jurisdiction and the dismissal of the Respondent. Ultimately the Adjudicator found that the facts set out in the termination letter were proven and that the dismissal of the Respondent was justified. He also determined that the Applicant was a federal undertaking to which the CLC applies [“Decision”]. The Applicant does not challenge any of the fact-finding in the Decision. The Applicant seeks judicial review because it maintains that, in light of the relevant jurisprudence, it is not a federal undertaking for the purpose of employment.

It has been acknowledged that strictly speaking, this issue is not a genuine constitutional one as it is not concerned with whether a particular statute is intra or ultra vires the constitutional authority of the enabling government. However, there is a rebuttable presumption that labour relations are a matter of provincial jurisdiction (NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, 2010 SCC 45 [“NIL/TU,O”]; Treaty 8 Tribal Association v Barley, 2016 FC 1090).

The Applicant established and operates a high school for Indigenous students with classes for grades 10, 11 and 12. The school draws students from sixteen Indigenous communities across Manitoba. It serves all of Manitoba but is targeted to those communities that do not have their own local high school. The school is located in the City of Winnipeg. Students are required to live in campus dormitories during the school year except during holiday periods.

The Southeast Tribal Council and the Federal Government of Canada are parties to an annual contribution agreement to fund the operation of the school. It provides funding for the operation of the Applicant and pays the tuition and boarding fees for each Indigenous student. While the Federal Government funding is the primary source of money received by the Applicant, non-Indigenous students are allowed to attend the school if they pay the annual tuition.

Although the school is not governed by The Public Schools Act of Manitoba, the Applicant’s teachers are required to hold a Provincial Teaching Certificate. The compulsory provincial high school courses are offered by the Applicant. The annual contribution agreement requires that the Applicant follow the Manitoba Ministry of Education Curriculum in order to receive the funding. Course curricula are accredited and provided by the province of Manitoba. As a result, graduating students receive a high school diploma that is recognized by the Manitoba Board of Education and by post-secondary institutions.

In NIL/TU,O, the Supreme Court indicated that the functional test “calls for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal undertaking” (NIL/TU,O). The Adjudicator was required to consider the functional test established by the Supreme Court of Canada in NIL/TU,O and, in doing so, he had to correctly apply it. The Adjudicator did neither. Because the Adjudicator found that it did not arise, there is no indication in the Decision that the presumption of provincial authority over this Applicant’s labour relations with the Respondent was rebutted. Unless the presumption is rebutted, the Province of Manitoba had jurisdiction over the relationship between the Applicant and the Respondent. Instead of applying the functional test, the Adjudicator substituted his own view that the presumption did not arise. In that respect, the Decision is based on an error of law.

Gamlaxyeltexw v BC (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215

Appeal dismissed. The hereditary chiefs of the Gitanyow people are actively pursuing an Aboriginal title and rights claim that includes an area that overlaps with the Nisga’a Final Agreement. The concerns regard the decision of the Minister on the basis of a breach of the duty to consult. The lower court decision added an extra step to the Haida test in cases where there is an overlap between established treaty rights and ones yet unproven. The Court of Appeal rejects the need for any modification of the Haida test.

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The Appellants are hereditary chiefs of the Gitanyow people [collectively as “Gitanyow”]. The Gitanyow have an outstanding claim for s. 35 Aboriginal rights in an area described as the Gitanyow Lax’yip.

The Nisga’a Treaty sets out the s. 35 rights of the Nisga’a. It provides that nothing in the Treaty affects any s. 35 rights for any Aboriginal people other than the Nisga’a Nation. The Nisga’a Treaty established a hunting area known as the Nass Wildlife Area where the Nisga’a have non-exclusive rights to hunt. The Minister of Forests, Lands and Natural Resource Operations [“Minister”], has certain decision-making responsibilities in relation to determining the total allowable harvest in the Nass Wildlife Area and the annual management plan which regulates Nisga’a citizens’ hunting. The nature and scope of the decision-making responsibilities are set out within the Nisga’a Treaty.

The Gitanyow Lax’yip overlaps with the Nass Wildlife Area. As a result, decisions made concerning the Nass Wildlife Area may have the potential for affecting activities within the Gitanyow Lax’yip. In order to protect the rights of Indigenous groups such as the Gitanyow pending claims resolution, the Crown has a duty to consult and, where appropriate, accommodate in circumstances where the Crown has knowledge of the potential existence of an Aboriginal right and contemplates conduct that might adversely affect it. This is known as the Haida test (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72).

This appeal concerns two decisions of the Minister made in 2016 approving the total allowable harvest of moose and the annual management plan for the 2016-2017 hunting season in the Nass Wildlife Area. Prior to making these decisions, the Minister had consulted with the Gitanyow concerning the total allowable harvest, but not concerning the annual management plan.

On judicial review, the chambers judge held that the duty to consult was not triggered by the approval of the annual management plan, and that the consultation in relation to the total allowable harvest was adequate. In reviewing these issues, the chambers judge concluded that the Haida test to determine the existence of a duty to consult was not adequate to deal with the circumstance where a conflicting treaty right was at issue. She concluded that the Haida test required modification to preclude a duty to consult an Indigenous group claiming s. 35 rights when the recognition of such a duty would be inconsistent with the Crown’s duties and responsibilities to the Indigenous peoples with whom it has a treaty. It is unnecessary, however, to modify the Haida test in order to recognize the limits of accommodation that treaty rights impose. The Haida test that has been applied consistently over the past 15 years has sufficient flexibility within it to encompass these issues.

Despite the conclusion that the modification of the Haida test was unnecessary, the Court does not consider that the reviewing judge erred in her fundamental approach to the issue before her. The analysis of the chambers judge properly focused on the three-part Haida test, and in particular the third element, which asks whether the proposed Crown conduct has the potential for affecting the claimed right. This is primarily a question of fact, to be reviewed on a deferential basis. Applying the Haida test, the Minister did not err in concluding that the duty to consult was not triggered in relation to the annual management plan. The consultation undertaken by the Minister in relation to the total allowable harvest was adequate in the circumstances.

Morin v Enoch Cree First Nation, 2020 FC 696

Application granted. Procedural fairness applies even when not directly incorporated into a First Nation’s custom election code.

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This application for judicial review is brought pursuant to s 18.1 of the Federal Courts Act, regarding a decision by an Election Appeal Board, constituted in connection with the Maskekosihk Enoch Cree Nation #440 Election Law [“MECN Election Law”]. The majority of voters of the Maskekosihk Enoch Cree Nation approved the MECN Election Law in 2018. It was enacted and adopted into the laws of that First Nation.

In this matter, the Applicant, Mr. Jared Morin and Respondent, Mr. Shane Peacock are members of the Enoch Cree Nation and both ran for the position of band councillor in the 2019 election. The counting of the ballots for councillors was conducted and there was found that both Mr. Morin and Mr. Peacock had received 319 votes. However, this “tie” is disputed as a councillor’s ballot was found in a ballot box intended for votes for the chief. That councillor’s ballot was for Mr. Morin. As some candidates ran for election as chief or councillor, the outcome of the election for chief had the potential to affect the outcome of the election to the 10th councillor position.

The Electoral Officer declared this tie and, in accordance with s 17.2 of the MECN Election Law, Mr. Morin and Mr. Peacock’s names were placed in a hat. The name drawn from the hat was Applicant. The Election Officer declared him the winner of the 10th councillor position.

Mr. Peacock subsequently submitted a brief to the Election Appeal Board that asserted the Electoral Officer improperly handled the councillor’s ballot found in the ballot box for votes for chief during the counting of the votes for the position of chief. That ballot, according to the brief, should have been considered as spoiled and not counted. In that event, Mr. Peacock would have had 319 votes and Mr. Morin would have had 318 votes, there would not have been a tie vote, and there would have been no need to conduct a tie breaking hat draw. The 10th councillor position in the 2019 election for the Maskekosihk Enoch Cree Nation chief and band council were then overturned and a by-election ordered.

This Court finds that the Election Appeal Board breached the duty of procedural fairness owed to Mr. Morin by failing to give him notice of that appeal, and as a result, deprived him of the opportunity to address the appeal allegations. The Election Appeal Board also erred by failing to notify the Electoral Officer of the appeal and in failing to obtain the Electoral Officer’s written reasons for his decision, in breach of s 20.7 of the MECN Election Law. This was unreasonable and rendered its decision unreasonable.

Given that Enoch Cree Nation did not challenge Mr. Morin’s allegation that the Election Appeal Board breached procedural fairness, and given that he has been successful in his application for judicial review in that the decision of the Election Appeal Board will be quashed and remitted back for redetermination, it is appropriate that he should be awarded the costs of his application as against the Enoch Cree Nation.

 

‘Namgis First Nation v Mowi Canada West Ltd and Canada (Fisheries, Oceans and Coast Guard), 2020 FCA 122

Application allowed. There were concerns from a First Nation involving a salmon farming licence after learning of new scientific evidence regarding potential spread of disease. A novel adverse impact that arises since an original consultation, creates a fresh duty to consult.

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‘Namgis First Nation’s traditional territory is at the north end of Vancouver Island and includes a number of the adjacent islands, including Swanson Island, which lie between Vancouver Island and the mainland. A number of distinct wild salmon populations are found in this area. These populations are critically important to ‘Namgis for food, social and ceremonial purposes. Mowi operates an open net salmon facility adjacent to Swanson Island. That facility has been there since the early 1990’s and has been stocked with salmon during that period except for fallow periods between harvesting and restocking.

Restocking open-net facilities is at the heart of this litigation because there is an uncircumscribed risk of introducing disease agents into the waters used by wild salmon. That risk arises from the transfer of immature salmon, or smolts, from inland fish stations to the open-net aquaculture facilities. If disease-bearing fish are introduced into these waters and if those diseases spread to the wild salmon stocks, the results could be calamitous and perhaps irreversible.

‘Namgis First Nation appeals from the decision of the Federal Court dismissing its application for judicial review of the Minister of Fisheries and Oceans’ [“Minister”] decision to issue a Salmonid Introductions and Transfer Licence [“Licence”] to Mowi Canada West Ltd. [“Mowi”]. The Federal Court had before it three separate but closely related applications for judicial review which it dealt with in one set of reasons (Morton v Canada (Fisheries and Oceans), 2019 FC 143).

All three applications revolved around two risk factors for wild Pacific salmon in ‘Namgis’ asserted territory. The first is Piscine Orthoreovirus [“PRV”], a highly infectious virus that is known to be present in Canada. PRV is found in both farmed and wild salmon in British Columbia. The second is Heart and Skeletal Muscle Inflammation [“HSMI”] which is an infectious disease found in farmed Atlantic Salmon and has appeared in one aquaculture facility in British Columbia. ‘Namgis is convinced that PRV and HSMI pose a threat to the wild salmon stocks which it relies on for food, social and ceremonial purposes. The Minister views the threat level as very low. The science as to the relationship between these two threats, their prevalence, and the risk they pose to wild (as opposed to farmed) salmon is evolving.

Given the history of consultation between these parties, the issue is not whether there is a duty to consult in the abstract but rather whether a fresh duty to consult arose. The Federal Court’s reasoning does not address the question of whether a novel adverse impact had arisen since the original consultation, which would create a fresh duty to consult.

The third element required in the test for a duty to consult calls for a generous, purposive approach recognizing that Crown action has the potential to irreversibly affect Aboriginal rights (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 [“Rio Tinto”]). The adverse affect cannot be merely speculative, and it must be relevant to the future exercise of the Aboriginal right. The assessment of the duty to consult is forward looking. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right (Rio Tinto).

The science around PRV and HSMI is rapidly evolving so that it was not specifically covered in the original consultations concerning fish health. The risk of harm to the native salmon stocks may be greater than the Minister previously contemplated, thus the finding of a novel adverse impact.

Acho Dene Koe First Nation v Minister of Industry Tourism and Investment, 2020 NWTSC 19

Application dismissed. This matter is not subject to judicial review as it seems to be of a private contractual nature brought forward by a First Nation, therefore it is not of a sufficiently public character to bring into the public law realm.

Indigenous Law Centre CaseWatch Blog

The Acho Dene Koe First Nation [“ADKFN”], claims Aboriginal title over lands upon which oil and gas exploration was being conducted by Paramount Resources Ltd. [“Paramount”], Chevron Canada Resources [“Chevron”] and Ranger Oil Limited [“Ranger”]. Neither the status, nor the validity of the ADKFN’s claim to Aboriginal title are before the Court.

The Director of Mineral and Petroleum Resources of the Department of Industry, Tourism and Investment for the Government of the Northwest Territories [“Director”] received a letter from the ADKFN explaining that the First Nation had entered into benefit agreements, called Community Investment Plans (“CIPs”), with Paramount, Chevron and Ranger. ADKFN asserted that each CIP related to specific licenses and interests held initially by each of the companies, and subsequently assigned to Paramount. ADKFN also asserted that the CIPs ran with the land to which the license and interest pertained and that Paramount, as the assignee, was bound by the CIPs with Chevron and Ranger, as well as its own.

Each CIPs’ stated purposes were to formalize the relationship between each of Paramount, Chevron and Ranger and ADKFN, and to provide for ongoing development of community relations. Among other things, they provided for financial contribution to a community development fund for the benefit of ADKFN members and a commitment to provide business opportunities to ADKFN members upon certain core competencies being demonstrated.

Although breaching of the CIPs is not before the Court, in its letter to the Director, ADKFN alleged that Paramount breached the CIPs and that consequently, Paramount was in violation of any licenses, permits or approvals that are contingent on compliance with such agreements. The Director replied by providing a general explanation of the benefits plans and approval process, noting that a benefits plan includes a commitment from the operator to implement strategies for training and employment, and procurement and contracting, but does not generally include guaranteed outcomes. He also noted that during the approval process, operators may enter into private contracts, such as the CIPs provided by ADKFN, to implement the strategies in the benefit plan, but that the terms of any private agreement do not thereby become terms of the benefit plan.

The AKDFN asks this Court to determine whether the Director in his letter erred by not assessing whether Paramount had complied with the benefits plans, declining to enforce the CIPs, and determining that the benefits plans are privileged. The Court finds that the Director’s letter is not subject to judicial review. The Director was not acting in accordance with “state authority” and the issues put before him were not of a sufficiently public character to bring the matter into the public law realm. He was not exercising a statutory or other public law power and, therefore was not acting as a tribunal. The Director received letters from ADKFN’s counsel, making a number of requests in relation to something that is entirely a private law matter. His response to the ADKFN did not become a tribunal and ADKFN’s interest did not take on a public dimension.

Even if a judicial review was allowed, it would be dismissed as the Director’s conclusion on the nature of the benefits plans as well as the Minister’s obligation to enforce the CIPs, would be assessed on a standard of reasonableness. His conclusion on the privilege question would be assessed on a standard of correctness as the privilege is statutorily protected. The Director’s assessment of the nature of the benefits plans is both reasonable and correct.

The Government’s duty to consult was not engaged because at the heart of ADKFN’s concern is a private contractual dispute with Paramount, not a proposed government action or decision. All that the ADKFN requested was an “enforcement” of the CIPs, in furtherance of its private contractual dispute with Paramount. That is something which neither the Minister, nor the Director have the authority to do and it is not altered by the Government’s fiduciary obligations to the ADKFN.

While the Director is employed in the public service, there is nothing in the applicable statutes that confers authority or imposes a duty upon him to decide or enforce anything, nor is there any evidence that any such authority or duty has been delegated to him. Accordingly, the Director does not fall into the category of a “public officer” in these circumstances.