Mosquito Grizzly Bear’s Head Lean Man First Nation v Her Majesty the Queen in Right of Canada, 2021 SCTC 1

As a result of breach of Crown fiduciary duty arising in a 1905 surrender of lands, compensation due to the Mosquito Grizzly Bear’s Head Lean Man First Nation, totalled a combined amount of $126,933,972.00. The Crown took a surrender vote in contravention of the statutory requirement that permitted only members of the Grizzly Bear’s Head and Lean Man Bands to vote, and later accepted and acted on the surrender. Pursuant to Treaty obligations, Canada admitted that it breached its pre-surrender fiduciary obligation, which rendered the 1905 surrender of lands invalid.

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This matter is the determination of the compensation due to the Mosquito Grizzly Bear’s Head Lean Man First Nation [“Claimant”], as a result of breaches of fiduciary duty of the Crown [“Respondent”] in the surrender of land from Indian Reserve No. 110/111 [“Lands”]. The reserve land of the Claimant totals 46,208 acres. The Claimant is of Assiniboine, Nakoda and Stony descent. The Claimant’s ancestors adhered to Treaty 6 and Treaty 4. The Claimant is also a “band” within the meaning of the term in the Indian Act, and was established by an amalgamation of three bands.

Pursuant to Treaty obligations, the Crown set aside land for the benefit of Grizzly Bear’s Head and Lean Man Bands with the Lands. In 1905, the Crown took a surrender of a 14,670-acre parcel. The surrendered land comprised approximately 2/3 of the reserve. The Claimant is, for the purpose of this proceeding, the successor in interest to any cause of action that may arise against the Crown as a result of the surrender.

Awards of compensation where a claim is found valid are governed by paragraph 20(1)(c) of the Specific Claims Tribunal Act [“SCTA”], which provides that the Tribunal is to award compensation “that it considers just, based on the principles of compensation applied by the courts”. Equitable compensation is a remedy where a breach of fiduciary duty is found and applies in the context of a breach of fiduciary duty with respect to a surrender of reserve land (Guerin v R, [1984] 2 SCR 335 [“Guerin”]). Where reserve land is affected by an invalid surrender, section 20(1)(g) of the SCTA requires that the Tribunal award compensation equal to the current unimproved market value [“CUMV”] of the subject lands. The Tribunal must also, under section 20(1)(h) of the SCTA, award compensation equal to the value of the loss of use [“LOU”] of the lands, brought forward to the present value of the loss.

Although the agreement did not describe the events and actions that breached Crown fiduciary duty, the evidence introduced in the compensation phase of the proceeding reveals that the Crown took a surrender vote in contravention of the statutory requirement that permitted only members of the Grizzly Bear’s Head and Lean Man Bands to vote, and later accepted and acted on the surrender. This was, from the outset, a breach of the duty of ordinary prudence. This breach occurred within a Treaty relationship, with respect to a Treaty reserve, and the breach led directly to the permanent alienation of Treaty reserve land from the Claimant.

The evidence was for the most part comprised of filed expert reports, their respective reliance documents, and the testimony of the authors on direct and cross examination. The expert reports addressed the historical context of the breach, the CUMV of the Claim Lands, LOU models describing foregone revenues from the Claim Lands from 1905 to present, and present valuation of foregone revenues.

Equitable compensation “attempts to restore to the plaintiff what has been lost as a result of the breach; i.e. the plaintiff’s lost opportunity” (Canson Enterprises Ltd v Boughton & Co, [1991] 3 SCR 534 [“Canson”]). The underlying policies that guide the assessment of equitable compensation in this claim include restitution (Guerin; Canson), reconciliation (SCTA), deterrence (Canson), fairness, and proportionality (Hodgkinson v Simms, [1994] 3 SCR 377). Equitable compensation is assessed at the time of trial, not the date of the breach. Therefore, the assessment is of the loss at present, with all losses represented by a single award. There is a common sense connection between the loss of use of the land and the loss of revenue that may have been paid into the Claimant’s coffers if the land had been leased out to farmers.

At all relevant times, the Indian Act applied to the Crown’s management of the Claimant’s funds. If the land had been surrendered for leasing, the reality would be that lease revenue would have been deposited in the Band Trust Account. The Tribunal adopted the Band Trust Account rate. Revenue from leasing would if in fact received be deposited in the Band Trust Account, and would earn interest at the rate set annually on such funds, compounded annually. The Tribunal determined CUMV of $15,500,000.00, effective September 21, 2017. The Tribunal assessed the present value of loss of use to December 31, 2019 at $111,433,972.00. This amount is net of the payments made by the Crown to the Claimant in respect of the Claim Lands from 1906 to 1956. The combined amount awarded for CUMV and LOU, subject to adjustment, is $126,933,972.00.

Bangloy v Canada (AG), 2021 FC 60

Application dismissed. An Indigenous family alleged that their education benefits were denied as retaliation for previous complaints the family had lodged against Indigenous and Northern Affairs Canada, and for discrimination based on race, or national or ethnic origin.

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Thirty years ago, Ms. Bangloy’s mother requested from Indigenous and Northern Affairs Canada’s [“INAC”] predecessor, Indian Affairs and Northern Development [“IAND”],  reimbursements of Ms. Bangloy’s tuition fees at a private school in British Columbia. The family argued that the costs were reimbursable under the terms of Treaty 11. IAND’s position was that education expenses could be claimed under the Indian Act, but only for children living on reserve, which Ms. Bangloy was not. The Court sided with IAND, finding that Treaty 11’s terms were confined to the geographical area of the treaty (Beattie v Canada (Minister of Indian Affairs and Northern Development), [1998] 1 FC 104, [“Beattie”]).

This matter deals with the decisions arising from a human rights complaint initiated by Ms. Bangloy and her family. The family launched the complaint after alleging discrimination on the basis of race or national or ethnic origin by INAC for their failure to provide Ms. Bangloy and her children with information regarding education benefits. They also maintained that INAC denied them these education benefits in question as retaliation for previous complaints of discrimination the family had lodged against INAC in Beattie.

The Tribunal found that there was no connection between INAC’s alleged failure to provide Ms. Bangloy with information about obtaining educational benefits and her race or ethnic or national origin. Therefore, she had not made out a claim of discrimination. With regard to the education funding issue in general, the Tribunal found that the same family was raising the same issue that had already been decided by the Federal Court in Beattie. In respect of the complaints of retaliation, the Tribunal found that the existence of a previous complaint was not a factor that influenced INAC’s alleged failure to provide education benefits. Therefore, there was no retaliation involved.

Ms. Bangloy’s application for judicial review required the Court to consider the Tribunal’s conclusions and whether or not they were reasonable. The Court found that the Tribunal’s conclusions that Ms. Bangloy had not made out a claim of discrimination in respect of annuity payments or information about educational benefits was reasonable given the absence of evidence of a connection between INAC’s position and Ms. Bangloy’s race, or national or ethnic origin. The Court concluded that the Tribunal reasonably found that the issue of entitlement to education benefits had already been decided by the Federal Court in Beattie. The Tribunal reasonably concluded that INAC’s conduct was not retaliatory. The Court dismissed this application for judicial review.

Johnson v Canada (Registrar, Indian Register), 2020 BCSC 1955

Appeal stayed. The appellant appealed what they interpreted as a decision by the Registrar of the Indian Register. The Court lacks jurisdiction to hear the appeal as it is premature given the statutory requirements of the Indian Act have yet to be met. Specifically, the nature of a response made by the Registrar was not a “decision” capable of being appealed until it is “protested” and the statutory proceeding is concluded.

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The appellant is a status Indian and member of Sechelt Indian Band, a band within the meaning of the Indian Act. In 2017, the appellant requested that the Registrar transfer him from the Sechelt Band List to the Semiahmoo Band List, as he believes he is entitled to membership in the Semiahmoo Indian Band [“Semiahmoo”].

The Department of Indigenous Services [“Department”] maintains the Semiahmoo Band List as Semiahmoo does not maintain its own membership code. Section 11 of the Indian Act sets out the membership rules for a band list maintained by the Department. Section 12(b) of the Act provides that, within certain limits, a person who is a member of another band is entitled to have their name entered in the Department band list if the council of the admitting band consents.

In 2018, the Registrar responded to the appellant’s transfer request, stating that the request could not be processed without receiving a Band Council Resolution [“BCR”] from the Semiahmoo Band Council. A separate letter was sent by the Registrar to the Band Council of Semiahmoo requesting a BCR accepting the appellant into the band’s membership. The appellant argued that a BCR from Semiahmoo was not required under s 11 of the Indian Act and that s 12(b), which requires band council consent to adding a band member, had no application.

The Registrar then advised the appellant that the Department’s position was that s 12 applied to all band transfers. The appellant sought judicial review in the Federal Court, but that was discontinued as it is this Court that has the necessary jurisdiction. The appellant advised the respondent he would pursue a protest under s 14.2 of the Indian Act. Section 14.2 allows for a protest to be made respecting the inclusion or addition of the name of a person or their omission or deletion of their name from the Indian Register or a band list maintained by the Department. The Registrar responded she would consent to a 90-day investigation period “once all necessary documents were filed”. The appellant agreed and in 2019, sent the documents to a computer link provided [“Protest”].

Subsequently, the Registrar informed the appellant that she was unable to accept the Protest as valid. She stated the Registrar’s original decision to add the name of the appellant to Sechelt First Nation registry was rendered prior to September 4, 1951 and therefore the Protest was out of time. Her earlier response did not constitute a “decision” but was a request for evidence, therefore it could not be protested. She also confirmed the Department’s position was that Semiahmoo consent was required for all band transfers.

This application concerns whether the Court has jurisdiction to hear the appeal at this time. The Indian Act sets out the statutory framework that applies to a dispute of a “first-level” Indian Registrar decision. Once such a decision is made, a party is statutorily entitled to protest the decision to the Indian Registrar. Upon receipt of a valid protest, the Registrar investigates and renders a final and conclusive decision. It is from that decision an appeal to this Court may be taken, not earlier.

The Registrar stated she could not accept the Protest as a valid protest, noting that the request for more evidence was not a decision or a denial of the application but merely a request for evidence, including the Semiahmoo BCR. The Indian Act provides a process to determine band status. As a complete code, the Indian Act must be complied with before it can be appealed (Baptiste v Canada (Registrar of Indian & Northern Affairs), 2000 SKQB 296). The Registrar is the “master of its own procedure” and can solicit information as they see fit in conducting the investigation.

The Court is satisfied that the earlier Registrar’s responses are not “decisions” as described by the appellant. The letter in 2018 did not make a decision as no BCR had been provided from Semiahmoo. It requested that it be provided. Nor did the letter in 2019 make a decision under s 14.2 of the Indian Act. Given the expiration of time from the 1951 decision, and that the 2018 response was neither a decision nor a denial but rather a request for information, the Protest of that letter was not a valid protest. That right to protest requires that the individual is added, omitted or deleted from an Indian Register or Band List.

In other words, a determination has been made. In this instance that did not occur until 2019, when the Registrar concluded that the appellant was not entitled to be a member of the Semiahmoo Band pursuant to s 11 of the Indian Act. As a result, the right to protest arises. The appellant was advised of that right, but has chosen not to do so. The right of appeal arises after the Registrar has ruled on a protest. This Court does not, at this time, have jurisdiction as the appeal is premature. The appeal is stayed.

Okanagan Indian Band v Johnston, 2020 BCSC 1749

The Court granted a one-year stay against the Band’s application for summary trial against a former member in relation to an interest in reserve land her late aunt bequeathed to her. The stay will give the defendant time to appeal the rejection of her membership application in another proceeding, although she will have other hurdles to surmount beyond membership before she can obtain a legal interest in the lot.

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The defendant, Marilyn Johnston, was a former member of the plaintiff, Okanagan Indian Band [“OKIB”] but is not a present member. Currently, she is a registered Indian of the Nak’azdli Whut’en Indian Band in Fort St. James, B.C. Ms. Johnston was bequeathed property on the reserve from her aunt who died in 2013. The plaintiff, the OKIB, is a band within the meaning of the Indian Act, and is the beneficiary of six reserves set aside for its use and benefit by the federal Crown pursuant to s 18 of the Indian Act. Okanagan Reserve No. 1 is one of the reserves set aside for the OKIB. Section 50 of the Indian Act prevents Ms. Johnston from inheriting her aunt’s property. The OKIB says that she must therefore vacate the property and Okanagan Reserve No. 1 [“Reserve”].

Ms. Johnston applied to transfer her membership back to the OKIB, and has been taking steps since then to reinstate her membership in the OKIB. She originally transferred her band membership from the OKIB in 1988 to enhance her credibility and trust with the community members she worked with in the victim services program. She had moved to that area in approximately 1976 and worked there in the social service sector. It was always the defendant’s intention to return from the Nak’azdli Whut’en Indian Band to the OKIB, as she has extensive ties to the Reserve.

When the defendant first contacted the OKIB in 2002 to transfer her membership, she was advised that the OKIB was in the process of adopting a new band membership transfer policy. OKIB said that it would process her application and she would be registered as a member. An internal band memo in 2012 stated that the defendant “has fulfilled all the requirements to apply for transfer to” the OKIB. It resolved that the defendant “has been accepted into the membership” of the OKIB, however, the transfer was not processed.

There is an issue between the parties as to whether the membership requirement in s 50 should be interpreted as being a member of the band at the date of the testator’s death, or whether it is retrospective and can be cured by membership granted after the date of death of the testator. The usual process under s 50(2) of the Indian Act where a beneficiary is unable to inherit the lands is for the lands to be sold to a band member and the proceeds of the sale provided to the beneficiary. Should the lands not sell, the lands would revert to the OKIB pursuant to s 50(3).

In 2019, the OKIB reconsidered the defendant’s application, but denied the defendant’s application for membership on the basis that she displayed aggressive and threatening behaviour to the OKIB staff and guests and that she would not make a positive contribution to the community. The defendant says she did not commit the behaviour or acts alleged and that there is no reasonable basis to deny her membership. The defendant appealed the OKIB Band Council decision to deny her membership with a formal application to the Protest Unit of ISC pursuant to the OKIB’s Band Membership Transfer Policy and s 14.2(1) of the Indian Act [“Protest”].

The Protest was sent by registered mail and accepted. The defendant has not yet received a reply. The basis for the Protest is that the decision to deny the transfer of membership to the OKIB was made without proper consultation and was significantly delayed. Subsequently, the plaintiff filed this Notice of Application. The defendant filed her application seeking a stay of proceedings to permit the membership process to complete, by way of appeal if necessary.

The Court has inherent jurisdiction to grant a temporary stay in a proceeding before it (Law and Equity Act, s 8(2); RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]. There is a serious question to be determined (RJR-MacDonald). In the Court’s view, there is an intrinsic link between the membership application issue and the plaintiff’s claims against the defendant. In the event that she becomes a member, there will likely be the two hurdles identified by the plaintiff, the retrospectivity of the operation of s 50, and the permission of the Minister pursuant to s 49. Irreparable harm would be occasioned to Ms. Johnston if the stay was refused. The second branch of the test is met by the defendant (Dixon v Morgan, 2020 BCCA 200).

In considering the balance of convenience, it is important to note that the defendant first applied to OKIB for a transfer back of her membership in 2002. The decision denying the application was made in 2019. In the intervening time, Ms. Johnston returned to live with her aunt in 2009, and her aunt died in 2013. Internal band documents indicate that in 2012 there was no impediment to approving the membership application. There were many attempts made by Ms. Johnston to communicate with OKIB and further her application throughout the years from 2002 to 2019. The lack of certainty of the future of the Lots lies at the feet of OKIB as a result of their delays. The prejudice to the defendant is far greater than that to the OKIB (RJR-MacDonald). The stay is granted with the length of one year.

Bruno v Samson Cree Nation, 2020 ABQB 504

The Court certified a class action against the Samson Cree Nation for members from whom payment of per capita distributions, special pays, and interest were withheld during litigation and disputes over members added by virtue of Bill C-31 in 1987. The majority of common issues were approved as sought, or as modified by the Court or agreed to by counsel, and can proceed to trial. 

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For most of its history, the Indian Act based entitlement to Registered Indian status and band membership on descent through the male parent. This system of eligibility for Indian registration based on descent through the male line was in effect until Bill C-31 was passed in 1985, in response to the equality commands of the Charter. Women who lost their Registered Indian status before 1985 for “marrying out” were restored to status by Bill C-31. These women, and any children they had with their non-Indian husbands, could be registered as Indians pursuant to s 6 of the Indian Act, enacted by Bill C-31.

Before Bill C-31, the Government of Canada maintained all Band lists, and determined Band eligibility on the basis of its statutory and administrative rules about parentage and marriage. After Bill C-31, this dual role for Canada continued with respect to many Bands. However, Bill C-31 also gave Bands the option of taking control of their membership by establishing their own membership codes.

The Plaintiff, Bonnie Lee Bruno [“Bruno”], is a member of the Samson Cree Nation [“Nation”]. Her name was added to the Band List of the Nation maintained by the Minister of Indian Affairs and Northern Development [“Minister”], under the provisions of Bill C-31. Previously enfranchised Indian women and their children became members of Indian Bands on lists administered by the Minister, unless First Nations developed band membership rules approved by the Minister on or before June 28, 1987. The Court found that, on the unchallenged evidence before it, that this was not done in this matter, thus giving primacy to the list maintained by the Minister on which the Plaintiff, and allegedly others in the class, had status effective June 29, 1987. 233 individuals were added as at that date.

Prior to the passage of Bill C-31, there was considerable controversy within many First Nations over, among other things, questions over whether the women who had “married out” should be accepted back into the community and as Band members. After Bill C-31 came into effect, there were numerous challenges before the courts regarding Band membership and the equality rights issues raised by the history of enfranchisement and the attempted solution of Bill C-31.

This class proceeding relates to a claim of class members from whom, after they were added to the Band List of the Samson Cree Nation [“Nation”] by virtue of Bill C-31, the Nation withheld payment of per capita distributions and Special Pays, and interest, from 1988 to 1995 per the Plaintiff, and lesser or greater time periods as to other class members. Beginning in June 1987, the Plaintiff and other individuals’ names were entered onto the Samson Nation Band List maintained by the Minister pursuant to Bill C-31, but that the Class Plaintiffs only became members of Samson Nation about 1995 when Samson recognized and admitted them as members of the Samson Nation.

The first criterion for certification is that the plaintiff’s pleading discloses a cause(s) of action. No evidence is required, but rather the facts, as pleaded, are assumed to be true (Hunt v Carey Canada, [1990] 2 SCR 959). The pleading is to be read generously (Cloud v Canada (2004), 73 OR (3d) 401 (CA)). The standard test for unjust enrichment is: an enrichment of the defendant; a corresponding deprivation of the plaintiff; and the absence of a juristic reason for the enrichment (Garland v Consumers’ Gas Co, [2004] 1 SCR 629).

At this stage, the Plaintiff merely needs to allege an arguable cause of action, which she has done. Proof of the allegation is for trial. The Court finds that a cause of action for unjust enrichment has been established for the purpose of certification. It is determined that this is an appropriate case to proceed by way of a class proceeding, and the majority of 16 common issues and 4 subclass common issues are approved as sought, or, in some cases, with modification.

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.

Indigenous Law Centre – CaseWatch Blog

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.