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.

Indigenous Law Centre – CaseWatch Blog

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

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

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

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

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

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

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

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

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

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.

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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.

R v Big River First Nation, 2019 SKCA 117

Appeal dismissed. Big River First Nation is a “person” for the purpose of sentencing for a minimum fine of $100,000 after it plead guilty to a summary conviction offence contrary to ss 238(1) and 272(1)(a) of the Canadian Environmental Protection Act.

Indigenous Law Centre
Indigenous CaseWatch Blog

The appellant, Big River First Nation [BRFN], pled guilty to the summary conviction offence of unlawfully failing to comply with an Environmental Protection Compliance Order, contrary to subsection 238(1) and 272(1)(a) of the Canadian Environmental Protection Act [“CEPA”]. The BRFN is a “band” within the meaning of the Indian Act. The sentencing judge found that the BRFN is an “individual” within the meaning of s 272 of CEPA and imposed a $10,000 fine (R v Big River First Nation, 2017 SKPC 16). The Crown appealed and the appeal judge found that the BRFN is a “person” within the meaning of s 272 of CEPA and substituted a sentence of a $100,000 fine (R v Big River First Nation, 2018 SKQB 109). The BRFN in this matter appeals this decision on the grounds that the appeal judge erred in law by finding that BRFN is a “person” within the meaning of s 272 of CEPA. As well, the appeal judge failed to even consider s 273 of CEPA, where the court may impose a fine that is less than the minimum amount if it is satisfied that the minimum fine would cause undue financial hardship.

The distinction as to whether BRFN should be classified as an “individual” or a “person” for the purpose of sentencing is important because of the fine minimums in s 272 of CEPA. An “individual” is subject to a $5,000 minimum sentence, while a “person” is subject to a $100,000 minimum sentence. The sentencing judge held that an Indian Act band is a sovereign nation, not a natural person or a corporation. It was his view that only a corporation can be a legal person and that a band must accordingly be an individual. He concluded that the minimum fine of $5,000 was unreasonable in light of the seriousness of the offence, but that a larger fine would place unnecessary hardship on a community such as BRFN and would damage innocent BRFN members. He imposed a fine of $10,000, noting that any destruction of the BRFN land base and water will be devastating for future generations.

The appeal judge, however, concluded that the respondent was a “person” within the meaning of s 272 of CEPA and fined them $100,000. The term “public body” is well known to the law. There is support for the proposition that the council of a First Nation is a public body (Westbank First Nation v British Columbia Hydro and Power Authority, [1999] 3 SCR 134). As for the meaning of “individual”, there is no definition of that term in CEPA or the Interpretation Act. It has, of course, been interpreted in the context of many statutes and, when used as a noun, has generally been interpreted so as to exclude anything other than a natural person (R v Carroll, 2016 ONCJ 214). There is authority for the proposition that a First Nation may fall within the scope of the term “person” (PSAC v Francis, [1982] 2 SCR 72). It was also determined that an Indian Act Band is a juridical person and is a unique, enduring, and self-governed entity that has distinct rights and obligations (Montana Band v Canada (TD), [1998] 2 FC 3). That supports the conclusion that “person” in s 272(1) includes “public bodies” that are neither bodies corporate nor individuals.

CEPA applies to reserve lands. It also contains mechanisms designed to enable the development of regulations and other measures to bridge the regulatory gap between non-reserve lands, where provincial and municipal laws apply, and reserve lands, where they do not. Those mechanisms provide for the participation of and exercise of jurisdiction by Indigenous governments and the incorporation of Indigenous knowledge. The purpose of sentencing for offences under CEPA is to contribute to respect for the law that is there to protect the environment and human health through the imposition of just sanctions. These objectives are for deterrence and to denounce unlawful conduct that damages or creates a risk of damage to the environment or human health. It reinforces the “polluter pays” principle by ensuring that offenders are held responsible for effective clean-up and environmental restoration.

BRFN submitted it should have the benefit of s 273 if BRFN is found a “person”. From the evidence submitted, the Court could not reasonably support a finding that the BRFN would suffer undue financial hardship from the minimum $100,000 fine.

 

 

Brake v Canada (AG), 2019 FCA 274

Appeal allowed in part. Action is certified as a class proceeding that will determine important common questions affecting over 80,000 people regarding the Qalipu Mi’kmaq First Nation Band’s stringent membership criteria.

Native Law Centre CaseWatch Blog

This is an application to overturn an order by the Federal Court that refused to convert Mr. Brake’s application for judicial review into an action under ss 18.4(2) of the Federal Courts Act [“Act”] and certify it as a class proceeding under Rule 334.16(1) of the Federal Courts Rules [“FCR”]. Mr. Brake passed away just before this Court rendered judgment, but his application for judicial review continues. This Court grants the appeal in part, sets aside the order that denies certification under Rule 334.16(1), and grants the motion for certification.

The Qalipu Mi’kmaq First Nation Band [“Band”] was recognized as a Band under the Indian Act. Under a 2008 Agreement, there was higher than expected enrollment. Canada, along with the Federation of Newfoundland Indians, made it more difficult for people to qualify as members of the Band through changes under a 2013 Supplemental Agreement. Using a paragraph in the 2008 Agreement to authorize making these changes, many like Mr. Brake no longer qualified for Band membership. He had applied for judicial review of the rejection of his application, and others, under the new criteria. Alleging procedural unfairness, substantive unreasonableness and lack of good faith, he seeks, among other things, a redetermination of the membership applications under the original 2008 Agreement.

Mr. Brake followed what is described as the “Tihomirovs approach” (Tihomirovs v Canada (Minister of Citizenship and Immigration), 2005 FCA 308 [“Tihomirovs”]) procedurally in the Federal Court. This approach would transform his proceeding from an individual proceeding into a class proceeding. The goal was to seek both administrative law remedies against the decision and damages caused by the decision. The Federal Court declined to certify Mr. Brake’s proceeding as a class proceeding, reasoning that the issues raised in the proposed class proceeding be determined through a test case: Wells v Canada (AG), [2019] 2 CNLR 321 [“Wells”]. It cited Tihomirovs for the proposition that if the reason for conversion was to support an application for certification as a class proceeding and if certification were denied, then conversion should also be denied. Not only is the Federal Court’s decision in Wells only persuasive, not binding (Apotex Inc v Allergan Inc, 2012 FCA 308), but Mr. Brake did not consent to his claims being decided in Wells as a “lead case”, nor was there opportunity to make submissions or present evidence.

To seek both administrative law remedies and damages simultaneously, one must launch two separate proceedings. For example, an application for judicial review started by a notice of application and an action for damages started by a statement of claim. This has obvious ramifications for access to justice because it is difficult to prosecute one proceeding all the way through to judgment. Having more than one proceeding compounds that difficulty and can also result in unnecessary expenditure of judicial resources and conflicting results.

Rule 105 of the FCR permits the consolidation of multiple proceedings of any sort, allowing them to progress as if they were one proceeding governed by one set of procedures. Therefore, an application for judicial review can be consolidated with an action for damages. At the end of the consolidated proceeding, the Court issues two judgments, one for the application for judicial review and one for the action. Where appropriate, each judgment will give the relief available in each proceeding. The judgment in the application for judicial review will give administrative law relief and the judgment in the action will give damages. Rule 334.16(1) provides that a “proceeding” can be certified as a “class proceeding”. An application for judicial review that has been consolidated with an action can be a “proceeding” that can become a class proceeding under Rule 334.16(1).

There are three recognized ways in case law to certify consolidated judicial reviews and actions as class proceedings: 1) the Hinton approach is when an application for judicial review seeking administrative law remedies is started. A separate action for damages for the administrative misconduct is also started and the two are consolidated. If desired, certification of the consolidated proceeding as a class proceeding can be sought under Rule 334.16(1) (Canada (Citizenship and Immigration) v Hinton, 2008 FCA 215 [“Hinton”]); 2) the Paradis Honey approach where an action is started. In the statement of claim starting the action, both administrative law remedies and damages for the administrative misconduct are sought. But the entitlement to damages is pleaded as a public law cause of action for unreasonable or invalid decision-making (Paradis Honey Ltd v Canada (Attorney General), 2015 FCA 89 [“Paradis Honey”]); and 3) the Tihomirovs approach where an application for judicial review seeking administrative law remedies is started. A motion for an order permitting the judicial review to be prosecuted as an action under ss 18.4(2) of the Act is brought. Then the litigant brings a motion for certification as a class proceeding under Rule 334.16(1). In support of the certification motion, a proposed statement of claim is filed that simultaneously seeks administrative law remedies and damages. The Court determines the motions together.

Under the Tihomirovs approach, the draft, unissued statement of claim becomes the subject of a certification motion which is contrary to the text of Rule 334.16(1). It speaks of certifying an existing proceeding, not a proposed proceeding. Tihomirovs, however, remains good law (Miller v Canada (AG), 2002 FCA 370). Yet Tihomirovs sits uncomfortably within the Act, the FCR and associated jurisprudence. Tihomirovs needs to be tweaked to address these concerns so that it can fit more comfortably into the FCR. The Court should consider the proposed statement of claim as if it were finalized and filed, then assess whether the action and the application for judicial review, if they were consolidated, would meet the certification requirements under Rule 334.16. It should require that within a short period of time the proposed statement of claim be filed as the statement of claim, the action be consolidated with the application, and the consolidated proceeding be prosecuted as if it were an action. Under this revised approach, nothing is being converted to an action under ss 18.4(2) of the Act, consistent with the jurisprudence of this Court (Canada (Human Rights Commission) v Saddle Lake Cree Nation, 2018 FCA 228). Instead, the Court is attaching a term to its certification order allowing the consolidated proceeding to be prosecuted as if it were an action.

The revised Tihomirovs approach places the litigants in substantially the same position they would have been in if they followed the Hinton or the Paradis Honey approaches. It would be wise for parties in the future to follow these latter approaches, the Paradis Honey approach being the simplest of all, when applying to certify a class proceeding where they seek simultaneously the invalidation of administrative decision-making and damages for wrongful administrative decision-making as in this matter.

Taylor et al v Ginoogaming First Nation, 2019 ONSC 0328

A Trust agreement’s payments are not extended to individuals who became members of the Ginoogaming First Nation after a designated payout day, even if they should have been a member on that date but for the discriminatory provisions of the Indian Act.

Native Law Centre Case Watch

The Trustees of the Ginoogaming First Nation Timber Claim Settlement Trust [“Trust”] brought an application concerning the interpretation of the Timber Claim Trust Agreement [“Trust Agreement”]. The Ginoogaming First Nation [“GFN”] is a Band pursuant to the terms and provisions of the Indian Act. The GFN is the settlor of the Trust. Prior to the Ginoogaming Timber Claim Settlement Agreement [“Settlement Agreement”] being entered into between the GFN and the Government of Canada, the terms and conditions of the Settlement Agreement and the Trust Agreement were put to the members of the GFN and approved in a ratification vote [“Voting Day”]. Article 12.5 of the Trust Agreement, provides for a one-time payment to be made to members of the GFN on the Voting Day. The discriminatory provisions of the Indian Act, RSC, 1985 c I-5 [“Indian Act”] were in effect at that time. At issue in this appeal is that some individuals were able to become members since two amendments to the Indian Act, and are they therefore eligible for the one time payments from this Trust.

The two significant legislative changes to the Indian Act arose from two court decisions, McIvor v Canada (Registrar of Indian and Northern Affairs), [2009] 2 CNLR 236 (BCCA) leave to appeal to the SCC refused, 33201 (2009) [“McIvor”] and Descheneaux c Canada (Procureur Géneral), [2016] 2 CNLR 175 (QCCS) [“Descheneaux”]. The Gender Equity in Indian Registration Act [“Bill C-3”] was in response to McIvor, but it focused exclusively on the specific circumstances outlined in McIvor and inequities persisted. Bill C-3 had not gone far enough to remedy the inequities perpetuated by the Indian Act. The federal government’s response to Descheneaux was Bill S-3, an Act to amend the Indian Act through the elimination of sex-based inequities in registration, which received royal assent on December 12, 2017.

Even though it is recognized by the court that but for the discriminatory provisions of the Indian Act at the time those individuals should have been members on the Voting Day, they were not and therefore are excluded from the benefit of the payment provided for in the Trust. When it comes to Article 12.5, the settlors of the Trust expressed an intention to limit the payment to those individuals who were members of the GFN on the Voting Day. The applicants neither sought to vary the terms of the Trust, nor to have certain provisions declared void. It is not the role of an interpreting court to change the plain meaning of a trust document. Article 16 of the Trust Agreement specifically provides for changes or amendments to the terms of the Trust Agreement if approved by a vote of the Members. It is also open to the Trustees to bring an application for a variation of the terms of the Trust if otherwise permitted by law.

 

 

 

Toney v Toney Estate, 2018 NSSC 179

Application allowed. The surviving spouse, who is non-Status and a non-band member, has been allowed to continue to occupy a family home on reserve.

Wiyasiwewin Mikhiwahp Native Law Centre
Case Watch

Marlene Toney, a widow, sought an order for indefinite exclusive occupation of her family home on reserve pursuant to s 21 of the Family Homes on Reserves and Matrimonial Interests or Rights Act [“FHR”]. The order also included half the value of her late husband, Lawrence Toney’s interest in the home and outbuildings pursuant to s 34 of FHR. Central to this application was the fact that Marlene is non-Status and a non-band member of the Annapolis Valley First Nation [“AVFN”]. For over 30 years, she and her spouse lived in their family home, investing over $140,000.00 of their own money in permanent improvements after Lawrence obtained a Certificate of Possession for the house in 1998. Marlene was an active part of the community for many years, and even served as the band manager for two years until she was diagnosed with multiple sclerosis. The only substantial asset in Lawrence’s estate is his right and interest in the Certificate of Possession for the land upon which the family home sits and the house itself.

The FHR also includes detailed “Provisional Federal Rules” [“Rules”] intended to govern First Nation communities that have not enacted matrimonial property laws of their own. These Rules, however, apply only to First Nations that have not yet enacted matrimonial property rules under the FHR. Any validly enacted First Nation laws oust the Rules in respect of that First Nation. If a First Nation has signed a self-government agreement with the federal government, under which it has power to manage its reserve lands, the Rules do not apply, even if the First Nation has not enacted matrimonial property laws of its own, unless the federal minister declares that the Rules apply to that First Nation. A First Nation enrolled under the First Nations Land Management Act [“FNLMA”] can oust the application of the Rules by bringing into effect a land code, separate matrimonial property laws under the FNLMA, or matrimonial property laws under the FHR. The FHR identifies how these Rules apply to First Nations who have adopted a land code pursuant to the FNLMA, and to First Nations under self-government agreements with the federal government. It is agreed that AVFN has not entered a self-government agreement with the federal government, nor enrolled under the FNLMA. These Rules apply to the AVFN.

The case at hand is the first decision to provide a comprehensive analysis of the FHR, in particular ss 21 and 34. These sections authorize courts to grant exclusive occupation of the family home and compensation to a surviving spouse for interests in matrimonial assets. The FHR respects the principle of non-alienation of reserve lands and its rules do not lead to non-Status or non-band members acquiring permanent or tangible interests in reserve lands pursuant to s 21 or receiving compensation for the value of reserve lands pursuant to s 34. The FHR, however, balances the equality rights of spouses under ss 15 and 28 of the Charter along with recognition of Aboriginal and Treaty rights under s 35 of the Constitution Act (1982).

Women appeared to have played an important and equal role in all aspects of tribal life and governance in most First Nations during pre-colonial times, and some were even matrilineal societies. The interpretation of the FHR recognizes the role and status of spouses of either gender, not if they are both members of the band. This is consistent with this appearance of Aboriginal values in pre-colonial times as shown in the Royal Commission on Aboriginal Peoples [RCAP]. Gender equality is a universal value that transcends nationality or race and it is in this context that the FHR promotes and protects a compelling and substantial legislative objective. The Court awarded Marlene indefinite exclusive occupation of the family home pursuant to s 21 of FHR, with the condition that she does not cohabitate with anyone during her occupation, except for one of her children or grandchildren. She must maintain the home and not commit waste.