Case Watch for October 2016

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Case Watch

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

Jurisdiction of superior courts over transboundary Aboriginal rights

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

Freedom of expression in context to injunction application for blockade

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

Annuity claims and the unique context of each Numbered Treaty –

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

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

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

Injunction granted against logging blockade –

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

Appraisal of lease rates for on reserve recreational properties –

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

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

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

Limitations period for negligence claim based on sexual assault:

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

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

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

Duty to reference Gladue factors in reasons for sentence –

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

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

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

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Case Watch for August 2016

 FROM OUR PUBLICATIONS DESK

Case Watch

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

Crown’s duty to consult in multi-stage permitting process

Listuguj Mi’gmaq First Nation v New Brunswick, 2016 NBQB 138: The New Brunswick Court of Queen’s Bench dismissed an application for judicial review to quash three provincial approvals granted to Chaleur Terminals Inc for the construction of a rail terminal and transfer system in Belledune, New Brunswick. The applicants argued that these approvals were issued without any meaningful consultation or accommodation of the Aboriginal and treaty rights and title of three Mi’gmaq communities along the Gaspé peninsula of Quebec. The Court rejected this application on the basis that the Crown had met the low level of consultation that it had pre-determined to be adequate for this project in 2014. The Crown first conducted its own assessment of the appropriate level of consultation in July 2014 and issued a certificate for the project to proceed at that time. The applicants never challenged those 2014 decisions and were now out of time to do so. The application was allowed to proceed with respect to three approvals from 2015 that involved excavation, the clearing of the site, and the installation of oil tanks. However, there was no new information brought to the province’s attention that would justify deeper consultation on the 2015 approvals and the province met the low level of consultation mandated by its 2014 determination.

Use of actuarial risk assessment tools for Aboriginal offenders

Canada v Ewert, 2016 FCA 203: The Federal Court of Appeal allowed the Crown’s appeal from a Federal Court decision that concluded that the use of certain actuarial tools for assessing recidivism and psychopathy was unreliable with respect to Aboriginal inmates, and thereby unjustifiably infringed upon their section 7 rights and breached the statutory obligations of the Correctional Service of Canada. The Federal Court had held that Mr. Ewert was not required “to establish definitively” that the assessment tools were biased, but the Court of Appeal disagreed. It allowed the appeal on the basis that Mr. Ewert was required to prove on a balance of probabilities that the actuarial tools generate or were likely to generate false results for Aboriginal inmates, and failed to do so.

Gladue factors in sentencing –

R v Okimaw, 2016 ABCA 246: The Alberta Court of Appeal allowed the sentence appeal of an Aboriginal offender on the grounds that, among other things, the sentencing judge failed to give weight to specific Gladue factors. The Court of Appeal used this decision as an opportunity to provide a “practical framework” for the consideration of Gladue factors. It was not enough for the sentencing judge to merely acknowledge “the existence of systemic factors”; the judge had a duty to consider how unique systemic and background factors played a role in bringing the particular Aboriginal offender before the courts. The Court of Appeal found that this necessary context was effectively absent from, or at least given insufficient weight in the decision under review. The Court of Appeal also clarified that it is not incumbent on a Gladue report writer to explain the impact of Gladue factors on moral blameworthiness. It is the sentencing judge that has the duty to carry out an “individualized assessment” of Gladue factors and this duty cannot be delegated. In this case, the Court of Appeal found that the impact of Mr. Okimaw’s Gladue factors were “largely self-explanatory”.

R v Alec, 2016 BCCA 347: The British Columbia Court of Appeal dismissed the sentence appeal of an Aboriginal offender who was sentenced without the aid of a Gladue report. A report was allowed as fresh evidence on appeal. However, the Court of Appeal held that a “formal” Gladue report was not necessary for sentencing Aboriginal offenders. The Court held that the sentencing judge was clearly aware of Mr. Alec’s Aboriginal circumstances and his “disconnection” from his First Nation, and it was open to the sentencing judge to assume that Mr. Alec would not participate in the preparation of a report given his previous reluctance to do so.

R v Sateana, 2016 NUCJ 20: The Nunavut Court of Justice considered Gladue factors in sentencing an Aboriginal man for manslaughter. The Court stated that the systemic factors that influence criminality in Nunavut are well known and well documented, including the inter-generational impact of residential schools, over-crowded and sub-standard housing, poverty, high rates of domestic violence and sexual abuse, and high rates of alcohol and substance abuse. However, the Court held that a Gladue analysis is something “which this court is called upon to give effect to on a regular basis, but which it is unable to implement in any meaningful way”. While Mr. Sateana had appeared before the Court many times before the events leading to his manslaughter conviction, the Court “would have been unable to craft sentences which addressed his deep seated issues and alcohol addiction because the territory has no treatment or rehabilitation facilities and few counselling and mental health services.” Mr. Sateana was sentenced to 13 years incarceration.

Gladue factors in relation to solitary confinement –

Hamm v Canada (Attorney General), 2016 ABQB 440: The Alberta Court of Queen’s Bench allowed an application for habeas corpus from three self-represented inmates placed in solitary confinement, two of whom were Aboriginal. The Court ordered the release of these three inmates from segregation as the institution had failed to provide them with the high level of procedural fairness they were owed before being placed into solitary confinement. Among other concerns, the Court held that “given the potential rehabilitation benefits and other benefits of access to [A]boriginal spiritual and cultural programs, each [A]boriginal inmate should have had a Gladue type assessment of what placements would be appropriate.” The Court also concluded that it was “unreasonable for a correctional institution to deny transparency in relation to its decisions concerning whether, and how, and where, [A]boriginal offenders should be further deprived of liberty”.

Gladue factors & pledges of on-reserve property in bail hearing –

R v Hope, 2016 ONCA 648: The Ontario Court of Appeal granted an Aboriginal man release from custody pending a new trial on charges that include second degree murder. The Court of Appeal took note of the various contexts in which it has previously applied Gladue principles, including bail hearings, and stated that Gladue principles informed certain aspects of its analysis in this case. Ultimately, the Court concluded that detention pending appeal was not necessary in the public interest in this case. The Court also dismissed the Crown’s concerns with the fact that the individuals offering sureties and pledges against the equity in their homes on Mr. Hope’s behalf were of Aboriginal descent and lived on reserve. Section 89 of the Indian Act protects property on reserve from being subject to a charge by anyone other than an “Indian” or a band. The Court of Appeal held that this should not interfere with an Aboriginal person’s ability to secure release from detention, and what mattered was that these individuals expressed a willingness to pledge the “not insignificant” equity in their properties, not whether the Crown could execute against those properties.

Extinguishment of Aboriginal rights –

Québec (Procureure générale) c Lachapelle, 2016 QCCS 3961 (in French only): The Quebec Superior Court granted an application to evict two individuals from a hunting camp in the Eastmain River basin in northern Quebec. One of the respondents was a member of the Algonquins of Barriere Lake and asserted that the hunting camp was incidental to an Aboriginal right to hunt. However, the respondent failed to provide any evidence in support of a site-specific hunting right in the area in question. The Court noted that the camp was located approximately 1200km away from the respondent’s reserve and fell within Cree territory recognized under the James Bay and Northern Quebec Agreement (JBNQA). The Court also held that even if the respondent had proven a site-specific right in the area where the camp is located, the Court could not recognize it in light of the extinguishment clause in the JBNQA. The respondent declined the opportunity to challenge the JBQNA’s constitutionality. The Court did note, however, that the JBQNA’s constitutionality is at issue in another proceeding before the Superior Court.

Exceptions to the tax exemption under section 87 of the Indian Act –

Bell v Canada, 2016 TCC 175: The Tax Court of Canada dismissed an appeal from tax assessments based on the tax exemption for personal property situated on reserve (section 87 of the Indian Act). The appeal concerned whether the exemption could be applied to annual bonuses received by a status “Indian”, Ms. Bell, from a company she owned and operated with her non-status spouse. Ms. Bell worked out of an office located on reserve. Ms. Bell received regular bi-weekly pay from the company as well as the balance of the company’s annual income as year end bonuses. The Minister allowed her to rely on the tax exemption for her regular pay but not for her year end bonuses. The Tax Court upheld the Minister’s decision on the basis that there was no substantive connection between the bonuses and the reserve land where Ms. Bell was working. The Tax Court also found that the bonuses exceeded reasonable remuneration and were therefore abusive of the tax exemption.

Crowns added as parties in private law action involving Aboriginal rights –

Saik’uz First Nation v Rio Tinto Alcan Inc, 2016 BCSC 1474: The BC Supreme Court allowed an application to add both the federal and provincial Crowns as defendants to a tort action against Rio Tinto Alcan in relation to impacts on the Nechako River and its fishery resources. The action is premised in part on asserted Aboriginal rights and title. The Court noted that the plaintiffs acknowledged that the consequences of this “major and complex case”, which would define the intersection between Aboriginal rights and tort law, may be huge. This may warrant inclusion of the Crown on its own. Further, the plaintiffs had already formally invited the Crown to participate through the Notice of Constitutional Challenge they issued in order to challenge the applicability of certain statutes. Under British Columbia’s Water Act, the province also asserts ownership over the water under dispute in this action, thereby warranting its involvement. Finally, the Court held that even where a formal declaration of Aboriginal title is not sought in the pleadings, the federal and provincial Crowns are still necessary parties to the determination of issues relating to Aboriginal title.

Injunction against First Nation’s interference with use of road –

Revolution Infrastructure Inc v Lytton First Nation, 2016 BCSC 1562: The BC Supreme Court allowed an application from Revolution Infrastructure for an interlocutory injunction restraining the Lytton First Nation from prohibiting or interfering with its use of an access road and ranch on which it operates a composting facility. Lytton First Nation asserts Aboriginal rights and title to the valley in which the facility and road are located and asserts a right to control access on this basis, as well as the basis that the road crosses its reserve lands. Lytton has enacted a band bylaw requiring Revolution to obtain a permit to use the road. The Court held that there are several serious questions to be tried in this case, including the nature of Aboriginal title and whether the band bylaw was validly enacted. The Court also held that interference with Revolution’s access to the road would result in irreparable harm. Finally, the Court held that the balance of convenience favoured Revolution as Lytton’s actions had disrupted the status quo of its use of the road without interference since 2009, the road had been used by the public for a significant period before then, and a facilitation process was in place that could potentially address the issues between the parties.

No jurisdiction for provincial tribunal with respect to on-reserve clinic –

Cahoose v Ulkatcho Indian Band, 2016 BCHRT 114: The BC Human Rights Tribunal dismissed a complaint against the Ulkatcho Indian Band and others on the basis that it lacked jurisdiction over the matter. The complainant had been employed in the band’s healthcare clinic on reserve. The tribunal held that there was no dispute over the proper approach for determining the limits of its jurisdiction. Instead, the key issue was which entity the so-called “functional test” needed to be applied to. The complainant argued that the First Nations Health Authority administered the clinic. However, the tribunal found no evidence of the Authority acting as a service provider. Instead, it concluded that the band was the employer of the clinic’s staff and the entity providing medical services on the reserve. Finally, the tribunal concluded that the band’s operations were seen to be federal when the functional test was applied.

Jurisdiction of self-governing First Nation tribunal –

Kwanlin Dün First Nation v Kwanlin Dün First Nation Judicial Council, 2016 YKSC 35: The Yukon Supreme Court dismissed an appeal from the Kwanlin Dün First Nation (KDFN) against two decisions of its Judicial Council that set aside its termination of two tenancy agreements. KDFN argued that the Judicial Council had no jurisdiction to decide matters relating to landlord and tenancy issues since KDFN has not enacted any laws on this subject matter and provincial legislation therefore applies. The Court found this dispute raised a question of true jurisdiction that must be reviewed on a standard of correctness. It held that the Judicial Council, by virtue of KDFN’s Constitution and its Judicial Council Act, had the power to review administrative decisions by the KDFN, including those it makes in a landlord and tenant context, to ensure its Constitution and laws are complied with. The Court went on to conclude that the Judicial Council had not exceeded its jurisdiction by ruling on matters of procedural fairness and KDFN’s constitutional values in context to the tenancy disputes at issue. The Judicial Council did not rule on specific landlord-tenant issues.

Indian Residential Schools Settlement Agreement –

Fontaine v Canada (Attorney General), 2016 MBQB 159: The Manitoba Court of Queen’s Bench allowed a Request for Directions with respect to a claim that an individual was wrongfully denied compensation under the IRSSA for sexual abuse at a residential school. The adjudicator accepted that a nun grabbed the claimant’s genitals while he was at residential school, but was not satisfied that the act had a “sexual purpose”. This decision was upheld on review and re-review. The Court found that it had the jurisdiction to review the re-review adjudicator’s decision on a standard of reasonableness. It went on to conclude that the first adjudicator’s interpretation of the IRSSA as requiring a “sexual purpose” for sexual touching to be compensable was fundamentally inconsistent with the plain language of the IRSSA and with the criminal law jurisprudence that the adjudicator purported to apply. It was therefore unreasonable for the re-review adjudicator to uphold this decision. The Court sent the claim back to be reconsidered in accordance with its reasons.

Fontaine v Canada (Attorney General), 2016 ONSC 5359: The Ontario Superior Court of Justice addressed the results of an investigation into the legal services provided by Douglas J. Keshen and his former law firm with respect to claims under the Indian Residential Schools Settlement Agreement (IRSSA). The report resulting from the investigation was “largely a vindication for Mr. Keshen”. However, there were two exceptions to this: 1) Mr. Keshen was found to have facilitated third party loans on the basis of a promise to repay the loans from IRSSA awards, which is prohibited under the IRSSA; and 2) Mr. Keshen’s practice of reporting to clients orally rather than in writing did not fully meet the Law Society of Upper Canada’s guidelines for lawyers acting on IRSSA files. No costs were ordered for either party and Mr. Keshen was not ordered to pay the costs of the investigation.

Case Watch for July 2016

 FROM OUR PUBLICATIONS DESK

Case Watch

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

Crown’s duty to consult

Gitxaala Nation v Canada, 2016 FCA 187: The Federal Court of Appeal quashed the Order in Council and Certificates of Public Convenience and Necessity for the Northern Gateway pipeline project that was proposed to be constructed between Bruderheim, Alberta and Kitimat, British Columbia. The Court found that the federal Crown’s consultation on the project fell “well short of the minimum standards prescribed by the Supreme Court in its jurisprudence”. Among other issues, the Crown failed to engage in a respectful and meaningful dialogue on the First Nations applicants’ asserted Aboriginal title and governance rights, instead choosing to restrict itself to the discussion of mitigation of environmental impacts as a form of accommodation. The Crown also failed to provide any reasons for its conclusion that its duty to consult and accommodate had been met prior to issuing the Order in Council.

Pimicikamak Cree Nation v Manitoba, 2016 MBQB 128: The Court of Queen’s Bench of Manitoba dismissed Pimicikamak Cree Nation’s application for judicial review of the provincial Crown’s decision to enter into a settlement agreement with Manitoba Hydro and the Incorporated Community Council of Cross Lake. One issue in the litigation was the concern raised by Pimicikamak, representing the traditional government of the Cross Lake Cree, that the Cross Lake community (a municipality made up primarily of Aboriginal people) was not a collective entity capable of representing Aboriginal people or settling their claims, and was fragmenting the Aboriginal people in the area. The Court rejected Pimicikamak’s arguments that Crown consultation on the settlement agreement started too late, was not meaningful or sufficient, and foreclosed accommodation. The Court also upheld the Crown’s decision not to entertain changes to the agreement that Pimicikamak proposed, finding that Pimicikamak was attempting to negotiate in a way that would cause the Crown to abandon the settlement agreement it had negotiated in principle with other parties.

Sipekne’katik v Nova Scotia (Environment), 2016 NSSC 178: In the underlying matter, Sipekne’katik has appealed the Crown’s approval of a natural gas storage facility at Fort Ellis, Nova Scotia, alleging that the provincial Crown breached its duty to consult and failed to provide the First Nation with procedural fairness with respect to the project’s approval. In this case, Sipekne’katik applied for a stay of the approval pending its appeal. The Supreme Court of Nova Scotia rejected Sipekne’katik’s application on the basis that Sipekne’katik failed to provide sufficient evidence of irreparable harm. Among other things, the Court held that the project had mitigation measures in place designed to reduce or avoid any adverse impacts, and there was insufficient evidence of irreparable harm to the Crown’s ability to engage in meaningful consultation if the stay was not granted.

Limitation on human rights jurisdiction

Canadian Human Rights Commission v Canada, 2016 FCA 200: The Federal Court of Appeal upheld the Canadian Human Rights Tribunal’s dismissal of two complaints regarding section 6 of the Indian Act, which prevents the complainants from registering their children under the Act. The complaints were dismissed on the basis that the Federal Court of Appeal had already previously concluded that federal human rights legislation does not authorize complaints directed at legislation per se, and the complaints were characterized as just that. While the Court took note of the “sorry state of the case law and its lack of guidance on when decisions of human rights tribunals interpreting provisions in human rights legislation will be afforded deference”, it concluded that the tribunal’s decisions ought to be reviewed on a standard of reasonableness. It then determined that the dismissals were reasonable.

Federal Court jurisdiction

Dickson v Canada, 2016 FC 836: The Federal Court allowed an appeal from an order striking certain defendants from the statement of claim in an action for damages over the Minister of National Revenue’s refusal to renew a federal tobacco manufacturing licence. The claim was originally struck as against all defendants except the federal Crown on the basis that the liability of the other defendants was grounded in provincial law. On appeal, however, the Court held that the plaintiffs’ claim against several of these defendants was “in pith and substance” based on federal law and governed by a detailed federal statutory framework essential to the outcome of the case – namely, the Indian Act.

Proper factual basis for Charter litigation

Re Constitutionality of Abegweit First Nation Custom Election Rules, 2016 FC 750: The Federal Court addressed an application for a reference under s 18.3 of the Federal Courts Act regarding the constitutionality of Abegweit First Nation’s custom election rules in terms of its treatment of off reserve members. More specifically, Chief and Council were seeking a declaration that restrictions against off reserve members voting or running in the First Nation’s custom elections were contrary to the right to equality under s 15 of the Charter. In 2009, council attempted to amend the custom rules restricting off reserve members from participating in elections to bring them in line with new jurisprudence on this issue, but the amendments were rejected in a plebiscite vote. The Court held that it did not have jurisdiction to hear and determine this matter because it did not originate from any ongoing proceeding and there was no proper factual basis to determine the Charter issue.

Kikino Metis Settlement v Husky Oil Operations Ltd, 2016 ABCA 228: The Alberta Court of Appeal determined an application for permission to appeal an order of the Metis Settlements Appeal Tribunal Land Access Panel in relation to annual compensation rates for surface lease sites. The Court granted leave to appeal from the Panel on three grounds in relation to statutory interpretation of the Metis Settlements Act. However, the Court denied Kikino the opportunity to appeal from the Panel on the ground that s 125 of the Act infringes s 15 of the Charter. Kikino sought to compare the timeline for compensation reviews under the Metis Settlements Act with the comparable provisions of the Surface Rights Act for the purposes of its Charter argument. The Court found that there was no proper factual foundation to address the Charter argument on appeal.

Gladue factors

R v Fehr, 2016 SKPC 87: The Saskatchewan Provincial Court addressed Gladue factors in context to the sentencing of an Aboriginal offender for robbery. Among other factors, the Court noted that Ms. Fehr had been apprehended at the age of 3, and lived in 13 different foster homes between the ages of 3 and 5 before being adopted at age 5 by a Caucasian family, along with her two sisters. In taking note of Ms. Fehr’s Gladue factors, the Court noted that she was “raised by a loving family not of her own culture” and “separated from her [A]boriginal community”. In the Court’s view, “Native children raised by non-[N]ative families face unique challenges of identity, community, and social development”.

R v Robinson, 2016 BCSC 1269: The British Columbia Supreme Court addressed Gladue factors in context to the sentencing of an Aboriginal offender for breaking and entering and mischief. The Court found that Mr. Robinson was adopted when he was seven months old, raised in a “non-[A]boriginal” setting, and had only limited interaction with his biological mother and First Nations community of origin. The Court held that the Supreme Court of Canada’s concerns in the cases of R v Gladue and R v Ipeelee were relevant but “attenuated in Mr. Robinson’s circumstances”.

R v Joe, 2016 YKTC 31: The Yukon Territorial Court addressed Gladue factors in context to an Aboriginal offender’s refusal to comply with a breathalyzer demand, among other charges. The Court noted that it “had the benefit of a thorough, detailed and reliable [Gladue] Report” and the “background of this particular offender [was] rife with Gladue factors”. Among other things, Mr. Joe had endured sexual and physical abuse during ten years that he spent in “one of the more repressive and brutal residential schools in Canada”. Nevertheless, the Court held that Mr. Joe “should have almost no particular consideration afforded to him as an [A]boriginal offender” and that the relevance of Gladue in this case was “infinitesimal in and of itself”. The Court also stated it had no evidence before it that Aboriginal offenders are over-represented in jail on account of drinking and driving offences.

Limitation on admissibility of Gladue report –

R v Alec, 2016 BCCA 282: The British Columbia Court of Appeal heard an appeal from an Aboriginal offender’s conviction for second degree murder in which the appellant sought to set aside his guilty plea on the grounds that it was invalid and his conviction was a miscarriage of justice. In arguing his appeal, Mr. Alec sought to adduce fresh evidence in the form of a Gladue report addressing the concept of ‘Aboriginal fatalism’ to explain his failure to make a timely application to set aside his plea. Mr. Alec’s appeal was dismissed and the Court of Appeal raised several concerns with the way in which the Gladue report was relied upon in this appeal: it was not in an admissible form and the portion relied upon was entirely hearsay; the portion relied upon constituted opinion evidence that could only be admitted through a qualified expert, which the author was not; and the report was not found to be relevant to the validity of the guilty plea at issue.

Use of actuarial risk assessment tools for Aboriginal offenders

R v Haley, 2016 BCSC 1144: The British Columbia Supreme Court addressed a Crown application to have an Aboriginal offender designated a dangerous offender and sentenced to an indeterminate period of incarceration in a federal penitentiary. Among other arguments, Mr. Haley raised the Federal Court’s 2015 decision in Ewert v Canada, where it was found that the same actuarial risk assessment tools applied to Mr. Haley “are susceptible to cultural bias and therefore are unreliable” in context to Aboriginal offenders. The Court upheld use of these same tests for the following reasons: the Crown’s expert evidence was not based exclusively on the use of these tools, but rather on a more broad-based and comprehensive reflection on all available information; the Crown’s expert testified that her opinion would not change even if she factored out any reliance on the contested tools; the evidentiary record was different from that in Ewert in terms of the reliability of the tools; and the context was different in this case, as sentencing courts addressing dangerous offender applications  “should be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety”.

R v Awasis, 2016 BCPC 219: The British Columbia Provincial Court addressed the application of actuarial risk assessment tools to Aboriginal offenders in context to a dangerous offender application raised during a sentencing hearing for two counts of sexual assault. The Court distinguished the Federal Court’s findings in Ewert on the basis that in this case the actuarial tools were only used “as a very small part of a wide ranging consideration of Mr. Awasis’ psychological make-up, his antecedents, and his future prospects”, as part of “a contextual and individual review of Mr. Awasis’ risk level”. The Court held that the findings in Ewert were “part of a decision of another trial court respecting quite different issues than those that arise in the case at bar”.

Spousal support security over reserve land

McMurter v McMurter, 2016 ONSC 1225: The Ontario Superior Court of Justice addressed whether a spousal support order could be secured against a support payor whose significant assets are located on land subject to the provisions of the Indian Act. Both the support payor, Mr. McMurter, and payee, Mrs. McMurter, are members of the Mohawks of the Bay of Quinte and live on reserve. While s 29 of the Act  prohibits the seizure of reserve land by a “non-Indian”, s 89 provides an exception for seizures in favour of another “Indian” or “band”. The Court granted Mrs. McMurter an order to charge and lien the Certificates of Possession held by Mr. McMurter as security for a spousal support order, subject to approval by the Mohawks of the Bay of Quinte and the Minister of Indigenous Affairs, which is required by the Act.

Indian Residential Schools Settlement Agreement

Fontaine v Canada, 2016 ONSC 4326: The Ontario Superior Court of Justice addressed a request for directions arising from the rejection of the claimant’s application for compensation for his undisputed sexual abuse at the Spanish Boys’ Residential School. The adjudicator had dismissed the application on the basis that the sexual assaults occurred after the school had closed, and this decision was subsequently upheld on review and re-review. In preparation for its response to the request for directions, Canada found documents undermining the adjudicator’s conclusion and those documents were brought to the Court’s attention. The Court held that the adjudicator made a palpable and overriding error of fact that the review adjudicator and re-review adjudicator failed to correct. The Court substituted its own decision on the merits of the claim rather than remitting the matter to be redetermined, finding in favour of the claimant.

Fontaine v Canada, 2016 ONSC 4328: The Ontario Superior Court of Justice revisited “the bedevilling problems of documentary disclosure for the [Independent Assessment Process] claims for the St. Anne’s Indian Residential School and for Bishop Horden Indian Residential School”. The Court found that the request for directions in this case was aimed at having the court order a new hearing for one of the claimants based on a revised record, and re-open many if not all claims for St. Anne’s and other residential schools. The Court also suggested that counsel for the claimant was attempting to use the request “as a public commission of inquiry about the integrity of the IAP process”. The Court granted the claimant confidentiality orders as preliminary relief but adjourned other preliminary matters raised by the claimant as the review process had not yet been exhausted for his claim.

Fontaine v Canada, 2016 BCSC 1306: The British Columbia Supreme Court addressed a request for directions from the Merchant Law Group (MLG), which sought to retain a portion of a client’s award under the Independent Assessment Process to apply to outstanding accounts for other unrelated matters. An agreement between MLG and the client for application of a portion of the award to other accounts was held to violate the settlement agreement, as were the client’s direction that MLG do so. The request was dismissed and MLG was ordered to pay its client the withheld amount forthwith.

Child and Family Services –

Children’s Aid Society of Ottawa v LF, 2016 ONSC 4044: The Ontario Superior Court of Justice allowed a motion to set aside the dismissal of an appeal in this matter for delay. The underlying appeal involves a constitutional challenge to statutory definitions in the Child and Family Services Act that limit special considerations for Aboriginal children to a subset of those children that would qualify as Aboriginal under s 35 of the Constitution Act, 1982. The appellants were given until July 15 to perfect their appeal.

Saskatchewan v Saskatoon Tribal Council Health & Family Services Inc, 2016 SKQB 236: The Saskatchewan Court of Queen’s Bench addressed an application seeking various interim orders to allow the Saskatchewan government to reassert control over child and family services on reserve for First Nations represented by the Saskatoon Tribal Council. In the underlying action, Saskatchewan seeks a declaration that it lawfully terminated an agreement delegating ministerial authority under the Child and Family Services Act to the Saskatoon Tribal Council agency. The Court granted Saskatchewan the interim relief it sought, including injunctive relief preventing the agency from interfering with Saskatchewan’s provision of child and family services on reserve or providing those services itself.