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.

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.

Fontaine v Canada (AG), 2020 ONCA 540

The Court of Appeal declined a request to stay the destruction of the SADRE database used to manage Independent Assessment Process claims under the Indian Residential Schools Settlement Agreement pending an appeal. All parties consented to an order for an expedited appeal and the preservation of the database until December 30, 2020, which was ordered on a schedule that would make the stay unnecessary.

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This motion for a stay arises in the context of the Indian Residential Schools Settlement Agreement [“IRSSA”]. The IRSSA resulted in the establishment of the Independent Assessment Process [“IAP”], under which former students who suffered physical, sexual, or psychological abuse could claim compensation. The IAP is administered by the Indian Residential Schools Adjudication Secretariat [the “Secretariat”] under the direction of the Chief Adjudicator. Over 38,000 claims have been processed in the IAP and over $3 billion disbursed to former students. The Secretariat uses a database known as SADRE to case-manage the IAP claims. The IAP is coming to an end, and the Secretariat is to be closed and all claims adjudicated by March 31, 2021.

The Chief Adjudicator sought directions on the disposition of certain records [“Non-Claim Records”] held by the Secretariat. He made a proposal to archive most of them with the Appellant, the National Centre for Truth and Reconciliation [“NCTR”]. Its mandate under the IRSSA is to archive and store records collected by the Truth and Reconciliation Commission and other records relating to what were known as Indian Residential Schools. This proposal was supported by the Appellant and others, but not by the Respondent, the Attorney General of Canada [“Canada”]. The proposal was rejected on January 20, 2020, and Canada was instead directed to bring a Request for Directions [“RFD”] for court approval of a proposal for the archiving of copies of the Non-Claim Records with the Appellant subject to certain delineated principles.

“Final Static Reports” were to be excluded from the Non-Claim Records to be archived, as the generation of such reports would contravene the orders made in Fontaine v Canada (AG), 2014 ONSC 4585. Final Static Reports are new reports generated from the SADRE database used by the Secretariat and reflect final process and outcome data of the 38,000 IAP claims administered under the IAP. Final Static Reports include tables that represent a fixed extract from SADRE at the end of the IAP. It was determined that the reliability and soundness of the models is doubtful without more information and truth and reconciliation would not be advanced, therefore the Final Static Reports should not be archived with the Appellant and not to be included in the IAP Final Report.

A number of orders have been made by the supervising courts in the course of the administration of the IRSSA. Three that are the subject matter of the stay motion have ordered that the SADRE database be destroyed. These courts have also issued various sunset orders governing the orderly closure of the IAP claims process, the expiry of the Chief Adjudicator’s mandate, and the wind-up of the Secretariat. The process to effect the destruction of SADRE could begin on December 31, 2020 and the Secretariat itself is to close on March 31, 2021.

In a nutshell, the Appellant’s primary position on appeal is that invaluable information will be permanently lost if the Final Static Reports are destroyed. However, Canada’s position is that the Appellant’s request to halt the destruction of SADRE is non-justiciable, a collateral attack on the In Rem order already made, and amounts to re-litigation.

The overarching consideration is whether the interests of justice call for a stay (Zafar v Saiyid, 2017 ONCA 919; Longley v Canada (AG), 2007 ONCA 149). In this case, a stay is declined. The parties all consent to an order for an expedited appeal and the orders that the Appellant seeks to stay preserve the SADRE database until December 30, 2020. As a result, a stay is unnecessary if an expedite order is granted and the appeal is heard by the end of October or early November and decided before the end of the year. Therefore, it is reasonable to expedite the Appellant’s appeal.

Hele c Canada (AG), 2020 QCCS 2406

This is a significant new case on how to approach the provisions for Indian status under s 6 of the Indian Act. Among other things, the Court clarifies how the honour of the Crown applies to the interpretation of the Indian Act to disfavour the legality of enfranchisement. This decision may have significant implications for how applications for Indian status are processed.

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The present statutory appeal is from a final decision of the Indian Registrar of Aboriginal Affairs and Northern Development Canada. That decision refused to recognize a 9 year old child, Annora Daphne Hele as an Indian.

The discriminatory policy known as “enfranchisement”, involved the renouncement personally and on behalf of descendants, living and future, of recognition as an “Indian” including its certain rights and benefits. In return, one gained full Canadian citizenship and the right to hold land in fee simple. The policy used to be the cornerstone of the Canadian federal government’s assimilation blueprint relating to Aboriginal peoples. Enfranchisement was not a policy desired by Indians and was ultimately abolished in 1985. Parliament has since enacted remedial provisions to address some of the consequences of that oppressive process but certain descendants of enfranchised Indians continue to suffer its aftereffects.

The issue at the heart of this appeal is the interpretation of a subsection of a male-centric Indian Act, 1952 [“1952 Act”]. In debate is the meaning of the words, “an Indian” and “the Indian and his wife and minor unmarried children” found in subsection 108 (1), which cannot be understood without taking into consideration the entire section, the 1952 Act in both English and French, and the history of the Indian Act as a whole. The two versions of the Act are authoritative, the words of both English and French (translated verbatim) must be examined to understand the intention of the legislature.

When a court is called upon to interpret a statute, particularly one relating to the Aboriginal peoples, in addition to adopting a straightforward non-technical liberal purposive approach that resolves doubts or ambiguities in their favour, it should not engage in carrying out its task in a vacuum devoid of all realities before it. In interpreting a historic legislation such as the Indian Act that contains oppressive provisions, such as subsection 108 (1) of the 1952 Act, the court should not engage in merely an academic exercise.

Subsection 108 (1) was resorted to in 1965 to voluntarily enfranchise Annora’s paternal grandmother, Margaret Laura Hele. At the time, Margaret was twenty-five years old, educated, self-sufficient, and not yet married. She spent several years teaching in a number of cities in northern and southern Ontario. After she left the reserve, Margaret’s mother began to receive calls and visits from band councillors demanding to know why Margaret was not filing for enfranchisement. These councillors insisted that Indian women who had either married or who were going to marry a non-Indian in any event could no longer retain the right to be a member of the band. Conceding to the pressure, Margaret voluntarily enfranchised. Four years later, Margaret married a non-Indian Canadian. Despite the applicable legislation, this marriage had no effect on Margaret’s Indian status as she was by then already voluntarily enfranchised. Had Margaret not been enfranchised, she would have lost her Indian status by operation of law on the day of her marriage.

In 1985, due to compelling social and political reasons, section 108 of the 1952 Act was repealed and enfranchisement in Canada was abolished. Margaret filed to be registered as an Indian, and for her children living with her. In 1987, as a result of the amendments to the 1985 Act, their Indian status was restored. Shortly after Annora’s birth, the Appellant, filed an application with the Indian Registrar to register her as an Indian. The Indian Registrar refused to register Annora as an Indian based on the provisions of the 1985 Act. The Appellant then filed a protest of the Indian Registrar’s decision pursuant to section 14.2 of the 1985 Act. The main ground of protest was that in 1965 the Governor in Council had no competence under the 1952 Act to enfranchise Margaret, who was an unmarried Indian women.

The Indian Registrar concluded that since Margaret had been enfranchised voluntarily pursuant to section 108 of the 1952 Act, Annora was not entitled to be registered as an Indian. Had Margaret lost her Indian status four years later as a consequence of her marriage to Laurence, there would be no second generation cut-off under the 1985 Act, and the answer would be different.

The only relevant issue before this Court is the correctness of the Indian Registrar’s decision. The question that requires an answer in this appeal is whether subsection 108 (1) of the 1952 Act permits the voluntary enfranchisement of an unmarried Indian woman? The Court’s answer to the above question is no. Subsection 108 (1) of the 1952 Act did not permit in 1965 the enfranchisement of Margaret who was an unmarried Indian woman. The same conclusion holds today when subsection 108 (1) is examined in light of modern interpretive rules and the current socio-political context. There is no ambiguity in the text or language of subsection 108 (1) as they are not reasonably capable of more than one meaning when considered in their entire context.

Enfranchisement was never a right even though historically it was viewed as a privilege. Enfranchisement, which used to be the cornerstone of the Canadian federal government’s assimilation policies towards Aboriginal peoples, was abolished in 1985. The federal government today would not pass a law that would encourage or allow Margaret to enfranchise herself. It would be mistake in law today to interpret subsection 108 (1) of the 1952 Act as allowing Margaret to enfranchise herself voluntarily in 1965.

Sections 108 and 109 of the 1952 Act, as amended in 1956, are the only statutory provisions that existed and applied to Margaret at the time she was enfranchised in 1965. Neither section permitted in 1965, nor does either section permit today, the voluntarily enfranchisement of Annora’s grandmother, Margaret, as an Indian.

The Indian Registrar decided incorrectly when she concluded “that prior to 1952 the Indian Act was amended to allow men or women over the age of twenty-one to enfranchise.” The Indian Registrar therefore erred in law, when she concluded in 2017 that the Governor in Council had the power to enfranchise unmarried Indian women pursuant to subsection 108 (1) of the 1952 Act, and when she rejected the Appellant’s protest application to register Annora as an Indian on that basis. Annora’s request filed through her father is granted and this matter is returned to the Indian Registrar to modify in the appropriate registry records the notation that Margaret Laura Hele was voluntarily enfranchised by Order in Council.

 

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.

 

 

 

 

 

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.

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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.

Dumais et al v Kehewin Band Council et al, 2020 FC 25

Motion dismissed. The reasons for dismissal is not the merits of the Plaintiffs’ grievances against Kehewin Band Council et al for refusing them memberships under Bill C-31, but rather this Court has no jurisdiction to entertain them.

Indigenous Law Centre – CaseWatch Blog

The Plaintiffs have asked for default judgement against the Kehewin Band and Band Council [“Kehewin”]. Due to the historical gender discrimination that existed against women with registered Indian status under the enfranchisement, or “marrying out”, provisions of the Indian Act, SC 1956. In 1985, however, the Indian Act was amended, also known as Bill C-31, to be consistent with s 15 of the Charter. Bill C-31 automatically restored band membership to the women who had lost their Indian status directly through enfranchisement.

Kehewin refused to recognize Bill C-31 or accept any of its eligible individuals or their children as band members. As a result, the Plaintiffs commenced the underlying action in 2000 seeking declaratory relief and damages against Kehewin and Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development [“Canada”]. The Plaintiffs claim there was a fiduciary duty owed towards them and there was a breach of that duty.

In this matter, the Plaintiffs seek default judgment for damages resulting from Kehewin’s discrimination and associated denial of all tangible and intangible benefits of band membership. The action against Canada has been held in abeyance pending disposition of the present motion. The action moved forward by fits and bounds for almost a decade. Throughout this period, Kehewin engaged in a deliberate and systematic pattern of delay, using all possible means to frustrate the Plaintiffs’ efforts to conduct an orderly and complete discovery.

Kehewin never formally took control of its membership lists. Kehewin rebuffed all attempts to restore membership to the Plaintiffs, refusing to comply with Bill C-31 or recognize Canada’s authority. Kehewin also failed to file an action or application to challenge the constitutionality of Bill C-31. Kehewin simply ignored Bill C-31. Kehewin refused to recognize any Bill C-31 eligible individuals as Kehewin Band members. Kehewin’s adoption and application of their Kehewin Law #1 made it impossible for individuals reinstated to registered Indian status or Kehewin Band membership under Bill C-31 to qualify for Kehewin Band membership.

The applicable test to establish if this Court has jurisdiction is set out by the Supreme Court of Canada: 1) there must be a statutory grant of jurisdiction by the federal Parliament; 2) there must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and 3) the law on which the case is based must be “a law of Canada” as the phrase is used in s 101 of the Constitution Act, 1867 (ITO-Int’l Terminal Operators v Miida Electronics, [1986] 1 SCR 752 [“ITO”]).

The Plaintiffs rely on the provisions of ss 17(4) and paragraph 17(5)(b) of the Federal Courts Act [“FCA”] to find jurisdiction. First, the nature of the proceeding generally contemplated by ss 17(4) is an interpleader. To the extent any obligation may be owed by Kehewin or Canada to the Plaintiffs, are concurrent, not conflicting. The obligation can only be owed to one. It is the claims as against Canada by other parties which must be in conflict to fulfill the requirements of ss 17(4) (Roberts v Canada, [1989] 1 SCR 322). While Kehewin takes a different legal position regarding the Plaintiffs’ status as band members, this does not create a conflicting claim as against Canada. Therefore, this Court does not have jurisdiction to entertain the Plaintiffs’ action against Kehewin under ss 17(4) of the FCA.

Next, paragraph 17(5)(b) of the FCA grants concurrent jurisdiction to the Federal Court to entertain claims against persons in relation to the performance of their duties as an officer, servant or agent of the Crown. Band councils have been recognized as legal entities separate and distinct from their membership with the capacity to sue and be sued by courts at all levels. On the one hand, they may act from time to time as an agent of the Crown with respect to carrying out certain departmental directives, orders of the Minister and the regulations passed for the benefit of its members. On the other hand, the band councils do many acts which are done in the name of and which represent the collective will of the band members, all of which is directly related to the elective process provided for in the Indian Act whereby the band members elect its governing body. The element of control is key to a finding of agency (Stoney Band v Stoney Band Council, [1996] FCJ No 1113).

The difficulty with the Plaintiffs’ argument is that no facts have ever been advanced in their pleadings which could support a finding of agency, nor does the notice of motion seek a declaration or finding of agency. It is not open to the Plaintiffs on a motion for default judgment to now assert liability of Kehewin based on agency. The introduction of this new theory of liability at this late stage of the proceeding is problematic. In any event, the facts established by the Plaintiffs on this motion do not support a conclusion that Kehewin was under the control of Canada when it refused to provide benefits to the Plaintiff. Regrettably, the Plaintiffs have failed to satisfy the first branch of the ITO test.

R v Robinson, 2019 BCPC 273

Defendant found guilty. The Wabalisla Street on the Bella Bella Indian Reserve is a road within the definition of a “highway” as set out in the Motor Vehicle Act.

Indigenous Law Centre
Indigenous CaseWatch Blog

The defendant was charged with driving while prohibited, contrary to s 95(1) of the Motor Vehicle Act [“MVA”]. The issue was whether the Crown proved beyond a reasonable doubt that Wabalisla Street located on Bella Bella Indian Reserve is a road within the definition of a “highway” as set out in the legislation. The analysis fell into two areas of consideration: 1) was the road designated or intended for or used by the general public for the passage of vehicles, and 2) are Aboriginal persons living on a reserve members of the general public.

The defence argued the reserve is in essence a closed community and any others who might use the street do so only to the extent which is incidental to the ownership of reserve property. Further, as the community is only accessible by water or air, any of the roads are thus precluded from the characteristics of a public highways within the meaning of the MVA. Bella Bella is a final destination, not a point of passage from one destination to another.

Albeit, there was investment in the network of transportation infrastructure that the community has either expressed or implied invitation to the general public to drive on their roads. The pursuit of tourism gave additional weight to this conclusion. There are numerous community-based resources along this roadway. It has traffic signs, is paved and is passable by two conventional cars. All persons are welcome on the reserve without restrictions or regulations. The defence also submitted that as the community had enacted their own by-law for the regulation and use of vehicles on their reserve pursuant to s 81(1)(f) of the Indian Act, this was evidence of their intent not to be subject to the MVA.

The fact that the community has a parallel regulatory by-law is not demonstrative that they have thus occupied the field through their regulations governing driving nor does it establish an intention not to be bound by the MVA. The defence says that a reserve road used by reserve residents is not a public road and is therefore, not a highway under the MVA. The Crown submits that the definition of a “highway” under the MVA, has use by the general public, which includes those Aboriginal members living on a reserve. The legislative purpose of s 95(1) of the MVA is to provide public protection against those prohibited from driving. The 1800 residents of the Bella Bella Reserve is not a trivial number of people. Collectively, they constitute the “general public”. There is nothing in the MVA that excludes individuals living on a reserve to be considered part of the general public. Therefore, the Crown has proven beyond a reasonable doubt that Wabalisla Street in Bella Bella is a highway under the MVA.

McLean v Canada, 2019 FC 1075

Motion approved for the Indian Day School Settlement Agreement.

Indigenous Law Centre – CaseWatch Blog

Motion approved for an Indian Day School settlement agreement [“Settlement”]. To approve a class action, the Court must determine if the settlement is, in all the circumstances, fair, reasonable, and in the best interests of the approximately 120,000 aging people that attended these Indian Day Schools [“Survivor Class Members”] as a whole.

The Settlement provides up to $1.4 billion in compensation to be shared by those who attended the over 700 Federal Indian Day Schools. For over 50 years, many Indigenous children were compelled to attend Indian Day Schools operated by the Defendant. The principal difference between Indian Day School students and Residential School students is that Day School students went home at night. Attendance at these schools was compulsory. Truancy resulted in punishment for not only the student, but also for the family including the cancellation of the “allowance” to which parents were entitled. Although the Defendant does not admit liability in the Settlement Agreement, the Settlement acknowledges that children were divided from their families and culture, and were denied their heritage. Many were physically, emotionally and sexually abused.

The proposed settlement represents access to justice for a class of Survivor Class Members and their spouses, children, and grandchildren. Indian Day School students were not included in the now famous Indian Residential School Settlement [IRSS]. However, many of the same abuses recognized in the IRSS were inflicted on those attending the Indian Day Schools. Not all settlements are good and settlement will not always be better than litigation, but this is a case where this Settlement, although general, is vastly preferable to the risky litigation, delays, costs, trauma and uncertainty inherent in this litigation.

It is important that the Settlement be looked at as a whole. The Court must refrain from rewriting the substantive terms of the Settlement or assessing the interests of an individual class member in isolation from the entire class (Manuge v R, 2013 FC 341; Hunt v Mezentco Solutions Inc, 2017 ONSC 2140). Further, a class action settlement is not required to be perfect as it must only fall within a “zone or range of reasonableness” (Châteauneuf v R, 2006 FC 286; Ontario New Home Warranty Program v Chevron Chemical Co, 46 OR (3d)).

It was determined that the Settlement reduced relevant risks, simplified the compensation process, and allowed family class members who did not receive direct compensation to participate in the healing process through the Settlement’s Legacy Fund. The Court was concerned with the litigation being drawn out, which was particularly meaningful as the Settlement involved an aging class of whom approximately 1,800 pass away each year. These considerations, in combination with the Court’s communication with class members, led the Court to determine that the Settlement was fair, reasonable, and in the best interests of the Class as a whole.