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. 

Indigenous Law Centre – CaseWatch Blog

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.

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.

 

Cunningham v Alberta (Métis Settlements Land Registrar), 2020 ABQB 301

Appeal dismissed. The Métis Settlements Act establishes membership requirements for the purpose for establishing a Métis land base. Although unfortunate, the appellant is not eligible to have Indian status and be a member of his Métis Settlement.

Indigenous Law Centre CaseWatch Blog

Mr. Cunningham spent almost his entire life on the Peavine Métis Settlement, including having a home and raising a family. However, he applied for Indian status in 1988. Although regretting the decision, he was unable to get his Indian status revoked. Mr. Cunningham has requested a judicial review of a 2018 decision of the Registrar of the Métis Settlements Land Registry [“Registrar’s Decision”].

The reasons for this decision is the conflict of Mr. Cunningham’s Indian status membership made 27 years ago. The Registrar did confirm that when the Peavine Métis Settlement approved Mr. Cunningham’s application for membership in 1991, the council acted contrary to s 78(2)(c) of the Métis Settlements Actbecause Mr. Cunningham was ineligible to become a member under s 75.

The Métis Settlement Act establishes membership requirements for Métis Settlements for the purpose of establishing a Métis land base, as reflected in the Membership List maintained and updated by the Registrar. The legislation was held to be constitutional by the Supreme Court of Canada (Alberta (AAND) v Cunningham, [2011] 2 SCR 670). The Métis Settlements Act does not does not establish eligibility or membership criteria for other purposes (L’Hirondelle v Alberta (Minister of Sustainable Resource Development), 2013 ABCA 12).

The problem is that the different existing legislative schemes exclude an Indian, except for certain exceptions which are not applicable to Mr. Cunningham, from membership in a Métis settlement (Gift Lake Métis Settlement v Alberta (Aboriginal Relations), 2019 ABCA 134). The Registrar is neither required to address each and every piece of evidence nor to address each and every aspect of Mr. Cunningham’s history and relationship with the Peavine Métis Settlement.

As for the 27 years from when Mr. Cunningham applied for Indian status to the 2018 Registrar’s Decision, if the doctrine of laches applied in this matter, the previous error in the 1991 Registrar’s Decision would be perpetuated into the future and the administrative error would override the will of the legislature in the Métis Settlements Act. As long as a statute is in effect, it is no defence that it has not been enforced or correctly applied for many years (Château-Gai Wines Ltd v Institut national des appellations d’origine des vins, [1975] 1 SCR 190).

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.

 

 

 

 

 

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.

Engstrom and Ragan v Peters First Nation Band Council, 2020 FC 286

Application allowed. Peters First Nation Band Council is ordered to take all steps necessary to grant full Band memberships to the Applicants.

Indigenous Law Centre – CaseWatch Blog

The Peters First Nation Band Council [“Council”] rejected the Applicants’ respective applications for band membership. This matter is the second application for judicial review seeking relief in connection with the denial of their memberships.

The first application was granted, but the Court declined to express an opinion about the merits of the Council’s decision in denying membership to the Applicants. However, it was found that the Council had acted unfairly by failing to inform them in advance of the factors that would be taken into account in deciding their applications. There was also concern regarding the Council’s failure to provide substantive reasons for its decision. The matter was accordingly remitted to Council for reconsideration, but once again, the applications were refused.

The Court was not able to ascertain the exact motives of the Council for denying Band memberships to the Applicants. It can assess, however, the Council’s stated reasons for denying those memberships to determine whether those reasons had the mark of rationality, intelligibility and justification. The focus of judicial review is on the reasons provided by the decision-maker in support of its decision. According to the Supreme Court of Canada, reasonableness review “must be on the decision actually made”, not the reasons that could have been made (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [“Vavilov”]). Robust judicial review is about outcomes and a decision-maker’s reasoning process in getting to an outcome. Both must be reasonable in light of the legal and factual constraints that bear on the decision. A primary legal constraint is the governing statutory scheme. It is not open to a decision-maker to disregard the applicable rules. There is no such thing as absolute or untrammelled discretion (Roncarelli v Duplessis, [1959] SCR 121).

A decision-maker may have some room to interpret the rules that apply to a matter before it but that exercise must be consistent with the text, context and purpose of the provision (Vavilov). Where the words employed are precise and unequivocal, their ordinary meaning will usually be determinative. It is not open to the decision-maker to adopt an “inferior” interpretation merely because it is plausibly available and expedient; or to “reverse-engineer” to get to a desired outcome (Vavilov). The express governing rules that apply to the Council’s membership decisions are contained in the Peters Indian Band Membership Code [“Code”]. The Code was adopted by the Band in 1990 and replaced the band membership provisions that had been previously contained in the Indian Act.

In rejecting the applications of the Applicants, it is clear that the Council did not consider itself bound by the membership criteria set out in the Code. It was not open to the Council to make up its own membership rules to supplement the explicit criteria that were adopted in 1990 when the Band took control of its memberships. The Council has acted unlawfully, unfairly and in bad faith in rejecting the membership applications of the Applicants. The Council has repeatedly shown itself to be unfit to decide these matters and there is no reasonable expectation that fairness and reason will prevail if this matter is remitted to the Council again. The Council is directed to take all the steps necessary to grant full Band memberships to the Applicants.

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.

 

 

 

Children’s Aid Society of Algoma v AW, 2019 ONCJ 242

Motion granted. A child in temporary custody with a Children’s Aid Society is determined to be First Nations. Although the father is not eligible for membership, the First Nation believes that the father, and therefore the child, is affiliated with that community.

The Children’s Aid Society of Algoma [“Society”] has brought a motion regarding a less than one year old child identification as a First Nations child and if the child identifies with the Batchewana First Nation [“BFN”]. Relief sought also includes an order that adds the BFN as a party respondent to this proceeding and an order that transfers the conduct of the application to the Nogdawindamin Family and Community Services [“NFCS”] as applicant. Thus, the proceeding shall continue as though commenced by NFCS in replacement of the Society, with an order transferring the interim care of the child from the Society to the NFCS. The band representative of the BFN, with consent of all parties, made submissions that they be heard given the potential ramifications of the outcome of the motion.

The Society brought a protection application before the Court and an interim without prejudice order was made that placed the child in its temporary care and custody. The parents have access to the child that is subject to a mandatory minimum number of hours along with multiple terms and conditions applicable to the parents during the exercise of any access. Initially the parents did not claim to be Indigenous to the Society upon its involvement. The Society, at that time, understood that the child was not eligible for registration or identified with any First Nations, Métis or Inuit band or community. The mother filed an addendum to the plan of care that stated the father found out he has some family with Indigenous connections, including an association with the BFN. The mother indicated that she herself practices various traditional Indigenous teachings and self-identifies with the BFN on that basis. The BFN Representative for Child Welfare [“Band Rep.”], however, did not find a community connection for the father and he is not eligible for membership with the BFN. However, that does not exclude the possibility of affiliation as the BFN believes that the father is affiliated with that First Nation.

The preamble of the Child and Youth Family Services Act [“CYFSA”] is intended to be inclusive and to facilitate broad interpretations in order to recognize cultural, hereditary and traditional connections. The intent of the legislation, as read by this Court, is to avoid creating rigid barriers that would discourage persons from self-identifying. It is to promote self-identification and pride in being a First Nations person, even if this did not occur for one or more generations in the past. Under the CYFSA, it is possible for a child to identify as First Nations and not be a member of an Indigenous band or community (Children’s Aid Society of Ottawa v NP). A child’s identification as First Nations, regardless of membership, is important as there are many considerations under the CYFSA for Indigenous children.

As well, s 21 of the Ontario Regulations 156/18 [“O Reg 156/18”] directs the Court to accept hearsay evidence on this issue (Children’s Aid Society of Algoma v CA; CP and the Batchewana First Nation). This does not mean that all rules of evidence and some standard of proof does not apply. There must be evidence in relation to the child as to whether access is beneficial and meaningful to the child (Children’s Aid Society of the Regional Municipality of Waterloo v CT). Subsection 2(3) Article 1 of the CYFSA indicates that the person who has an ethnic, cultural or creedal ties in common with the child or the parent or relative of the child, is a member of the child’s community. Article 2 speaks of a person who has a beneficial and meaningful relationship with the child. The words “beneficial and meaningful” are used nine times in the CYFSA, however, those words are not defined by the CYFSA. While this proceeding is regarding the quality of the care being provided by the parents for the child, the interim without prejudice order provides the parents and the child with access to each other. In its protection application, the Society sought an order that each parent have access with the child. There has been no motion to terminate that access for either parent or that this access has been detrimental to the child. This indicates that there is some beneficial and meaningful relationship between each parent and the child. Accordingly, while it may seem intuitive, this supports a finding that each parent is a member of the child’s community.

Each parent has provided evidence of self-identification as an Indigenous person. The mother has provided evidence that she practices traditional Indigenous teachings and has an “association” with the BFN. There is no evidence, however, that the mother has any link beyond her personal choice and the evidence does not assist in creating an identification link between the child and the BFN (Children’s Aid Society of the Regional Municipality of Waterloo v CT). There is evidence that the father identifies as a First Nations person.

The O Reg 156/18 promotes the acceptance of hearsay evidence. The Court accepts the father’s evidence regarding his maternal grandfather and his own identification as an Indigenous person. Other evidence before this Court does not contradict that evidence and it is proof that meets the standard of being on a balance of probabilities. This is a recent awakening by the father, but it is not contradicted by any other evidence. The BFN intends to be inviting of the father and, in turn, the child. The BFN seeks to be involved in this proceeding and the level of involvement will be determined by the First Nation. It is appropriate that the BFN be added as a responding party in this proceeding and that the NFCS be substituted, in place of the Society, as the applicant. The Court finds the child is a First Nation’s child and the Society’s motion is granted. An order is made that the BFN is made a party to and respondent in this proceeding.

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.