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.

Quebec (AG) v Picard, 2020 FCA 74

Appeal dismissed. The Court of Appeal upheld the Federal Court’s finding that the pension plan for Indigenous police officers employed by several band councils in Quebec falls under federal jurisdiction and is a plan registered under the federal Pension Benefits Standards Act.

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The First Nations Public Security Pension Plan [“Plan”] was first registered by the Office of the Superintendent of Financial Institutions [“OSFI”] in 1981 under the authority of the Pension Benefits Standards Act [“PBSA”]. The purpose of that Plan is to provide retirement benefits to the police officers and special constables of a number of police forces of First Nations member communities serving Indigenous communities. The Plan currently covers the police forces under the responsibility of 14 band councils in Quebec.

The police services of the band councils that are members of the Plan are all subject to policing services agreements reached between each of the band councils, the Crown, as represented by the Minister of Public Safety and Emergency Preparedness, and the Government of Quebec. These agreements are made under the First Nations Policing Program [“Program”]. The federal government covers 52% of the costs, and the provincial government covers 48%. Tripartite agreements of the type at issue in this case are apparently preferred by the vast majority of the communities.

OSFI is responsible for regulating and supervising private federal pension plans registered under the PBSA in order to contribute to public confidence in the Canadian financial system (Office of the Superintendent of Financial Institutions Act). To be registered under the PBSA, a pension plan must primarily relate to employment in connection with the operation of any work, undertaking or business that is within federal legislative authority (PBSA). When this is not the case, the supervision of the plan is the responsibility of the provincial authorities.

The Federal Court found that the police officers and special constables hired and remunerated by band councils under a tripartite agreement that also involves the federal and Quebec governments are employed in a federal work, undertaking or business. Consequently, the Federal Court expressed the view that their pension plan was a plan registered under the PBSA and that OSFI should continue to administer the Plan.

This Court is of the view that the Federal Court did not err in allowing the application for judicial review and in declaring that the police officers and special constables hired and remunerated by band councils that are members of the Plan are employed in a work, undertaking or business within federal jurisdiction. Consequently, the PBSA and its Regulations apply to the Plan because the participating employees are employed in “included employment” within the meaning of the PBSA.

In contrast to the Indigenous police officers employed by the Nishnawbe-Aski Police Service Board at issue in a previous Federal Court of Appeal decision, the Indigenous police officers in this matter are employed directly by band councils and associated with the governance of their First Nations, therefore their labour relations are federally regulated.

Southeast Collegiate Inc v Laroque, 2020 FC 820

Application allowed. A Canada Labour Adjudicator committed an error of law by failing to apply the correct legal test to determine if he had jurisdiction to hear an employee’s wrongful dismissal complaint. He erroneously concluded the presumption of provincial regulation of labour relations had been rebutted based on a provision of the Indian Act, the identity of the students, and the program’s emphasis on cultural sensitive education.

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The Court allowed an application for judicial review from a Canada Labour Adjudicator’s decision that the Southeast Collegiate Inc. is a federal undertaking to which the Canada Labour Code [“CLC”] applies. This corporate entity was created by the Southeast Tribal Council to deliver culturally sensitive high school education to Indigenous students from across Manitoba.

The Respondent complained under the CLC that she was wrongfully dismissed. She therefore bore the onus to adduce evidence to rebut the presumption of provincial authority. The Adjudicator addressed the two issues put forward regarding jurisdiction and the dismissal of the Respondent. Ultimately the Adjudicator found that the facts set out in the termination letter were proven and that the dismissal of the Respondent was justified. He also determined that the Applicant was a federal undertaking to which the CLC applies [“Decision”]. The Applicant does not challenge any of the fact-finding in the Decision. The Applicant seeks judicial review because it maintains that, in light of the relevant jurisprudence, it is not a federal undertaking for the purpose of employment.

It has been acknowledged that strictly speaking, this issue is not a genuine constitutional one as it is not concerned with whether a particular statute is intra or ultra vires the constitutional authority of the enabling government. However, there is a rebuttable presumption that labour relations are a matter of provincial jurisdiction (NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, 2010 SCC 45 [“NIL/TU,O”]; Treaty 8 Tribal Association v Barley, 2016 FC 1090).

The Applicant established and operates a high school for Indigenous students with classes for grades 10, 11 and 12. The school draws students from sixteen Indigenous communities across Manitoba. It serves all of Manitoba but is targeted to those communities that do not have their own local high school. The school is located in the City of Winnipeg. Students are required to live in campus dormitories during the school year except during holiday periods.

The Southeast Tribal Council and the Federal Government of Canada are parties to an annual contribution agreement to fund the operation of the school. It provides funding for the operation of the Applicant and pays the tuition and boarding fees for each Indigenous student. While the Federal Government funding is the primary source of money received by the Applicant, non-Indigenous students are allowed to attend the school if they pay the annual tuition.

Although the school is not governed by The Public Schools Act of Manitoba, the Applicant’s teachers are required to hold a Provincial Teaching Certificate. The compulsory provincial high school courses are offered by the Applicant. The annual contribution agreement requires that the Applicant follow the Manitoba Ministry of Education Curriculum in order to receive the funding. Course curricula are accredited and provided by the province of Manitoba. As a result, graduating students receive a high school diploma that is recognized by the Manitoba Board of Education and by post-secondary institutions.

In NIL/TU,O, the Supreme Court indicated that the functional test “calls for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal undertaking” (NIL/TU,O). The Adjudicator was required to consider the functional test established by the Supreme Court of Canada in NIL/TU,O and, in doing so, he had to correctly apply it. The Adjudicator did neither. Because the Adjudicator found that it did not arise, there is no indication in the Decision that the presumption of provincial authority over this Applicant’s labour relations with the Respondent was rebutted. Unless the presumption is rebutted, the Province of Manitoba had jurisdiction over the relationship between the Applicant and the Respondent. Instead of applying the functional test, the Adjudicator substituted his own view that the presumption did not arise. In that respect, the Decision is based on an error of law.

Gamlaxyeltexw v BC (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215

Appeal dismissed. The hereditary chiefs of the Gitanyow people are actively pursuing an Aboriginal title and rights claim that includes an area that overlaps with the Nisga’a Final Agreement. The concerns regard the decision of the Minister on the basis of a breach of the duty to consult. The lower court decision added an extra step to the Haida test in cases where there is an overlap between established treaty rights and ones yet unproven. The Court of Appeal rejects the need for any modification of the Haida test.

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The Appellants are hereditary chiefs of the Gitanyow people [collectively as “Gitanyow”]. The Gitanyow have an outstanding claim for s. 35 Aboriginal rights in an area described as the Gitanyow Lax’yip.

The Nisga’a Treaty sets out the s. 35 rights of the Nisga’a. It provides that nothing in the Treaty affects any s. 35 rights for any Aboriginal people other than the Nisga’a Nation. The Nisga’a Treaty established a hunting area known as the Nass Wildlife Area where the Nisga’a have non-exclusive rights to hunt. The Minister of Forests, Lands and Natural Resource Operations [“Minister”], has certain decision-making responsibilities in relation to determining the total allowable harvest in the Nass Wildlife Area and the annual management plan which regulates Nisga’a citizens’ hunting. The nature and scope of the decision-making responsibilities are set out within the Nisga’a Treaty.

The Gitanyow Lax’yip overlaps with the Nass Wildlife Area. As a result, decisions made concerning the Nass Wildlife Area may have the potential for affecting activities within the Gitanyow Lax’yip. In order to protect the rights of Indigenous groups such as the Gitanyow pending claims resolution, the Crown has a duty to consult and, where appropriate, accommodate in circumstances where the Crown has knowledge of the potential existence of an Aboriginal right and contemplates conduct that might adversely affect it. This is known as the Haida test (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72).

This appeal concerns two decisions of the Minister made in 2016 approving the total allowable harvest of moose and the annual management plan for the 2016-2017 hunting season in the Nass Wildlife Area. Prior to making these decisions, the Minister had consulted with the Gitanyow concerning the total allowable harvest, but not concerning the annual management plan.

On judicial review, the chambers judge held that the duty to consult was not triggered by the approval of the annual management plan, and that the consultation in relation to the total allowable harvest was adequate. In reviewing these issues, the chambers judge concluded that the Haida test to determine the existence of a duty to consult was not adequate to deal with the circumstance where a conflicting treaty right was at issue. She concluded that the Haida test required modification to preclude a duty to consult an Indigenous group claiming s. 35 rights when the recognition of such a duty would be inconsistent with the Crown’s duties and responsibilities to the Indigenous peoples with whom it has a treaty. It is unnecessary, however, to modify the Haida test in order to recognize the limits of accommodation that treaty rights impose. The Haida test that has been applied consistently over the past 15 years has sufficient flexibility within it to encompass these issues.

Despite the conclusion that the modification of the Haida test was unnecessary, the Court does not consider that the reviewing judge erred in her fundamental approach to the issue before her. The analysis of the chambers judge properly focused on the three-part Haida test, and in particular the third element, which asks whether the proposed Crown conduct has the potential for affecting the claimed right. This is primarily a question of fact, to be reviewed on a deferential basis. Applying the Haida test, the Minister did not err in concluding that the duty to consult was not triggered in relation to the annual management plan. The consultation undertaken by the Minister in relation to the total allowable harvest was adequate in the circumstances.

Canadian Natural Resources Limited v Elizabeth Métis Settlement, 2020 ABQB 210

Application allowed. A Métis community’s Property Tax Bylaw is quashed as it is unlawfully enacted and unreasonable in substance.

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Elizabeth Métis Settlement [“Elizabeth”] is a small Métis community on the eastern edge of Alberta. In 2019, Elizabeth levied property taxes amounting to 187% of assessed land value on four natural resource companies whose lands comprise virtually its entire taxable base. Elizabeth explained that its unusual procedures in enacting it were justified by a looming financial emergency, and that the context of Alberta’s Métis settlements uniquely informs the question of what constitutes a reasonable rate of taxation in this situation.

In 1984, a movement began towards securing lands to support Métis communities in Alberta attaining self-governance. This consultation ultimately led to the Alberta-Métis Settlements Accord in 1989. This framework agreement and related legislation created eight Métis settlement [“Métis Settlements”] and granted fee simple title to those lands to the Métis Settlements General Council [“MSGC”]. This process also led to the incorporation of the Métis people in the Constitution of Alberta Amendment Act, which recognized that the Métis people were to gain self-governance, and protected their land base with the specific stated aim of preserving and enhancing Métis culture and identity. The Métis Settlements Act [“MSA”], was brought into force to provide a structure of delegated authority by which these communities could govern themselves individually, and collectively through the MSGC.

The top level of Métis governance established by the MSA is the MSGC. This umbrella body creates policies from which each of the Settlements derive sub-delegated authority to run their own communities. The individual Métis Settlements, in practice, operate at a quasi-municipal level. While their existence has a deeper social, cultural and historical underpinning than ordinary municipal corporations, they perform many of the same functions of a local municipal government common to municipalities across the province. Similar to municipalities, the sole source of tax revenue for the Settlements is through property taxation. Due to the structure of land holding on the Settlements, however, Elizabeth appears to have only four taxpayers, including the Applicants in this case.

Métis Settlements first gained independent taxation powers in 1997. Prior to that, any taxation was subject to direct ministerial approval. MSGC policy defines the parameters of Settlement taxation powers and the process for property assessment. Each Settlement in turn is left to pass its own property tax bylaw. In 1997, the MSGC enacted a tax policy to establish a fair, orderly, and equitable system by which those who use land in a Settlement area for business purposes can be required to contribute a fair share, based on valuation or agreement, to the cost of maintaining a viable Métis community in the Settlement area. The 1997 policy permitted Settlements to make annual business property contribution bylaws, and levy property tax based on the deemed value of land holdings, with a cap tax rate.

In 2019, the basis and structure of property taxation within the Métis Settlements changed fundamentally. The MSGC revoked the 1997 policy and replaced it with a new instrument called the Métis Settlements General Council Property Taxation Policy 2018 [“Tax Policy”]. There was no cap identified on Settlement property tax rates and no mention of “fair, orderly, and equitable” contributions being required by businesses operating on Settlement lands. The Tax Policy specified a new formula by which the tax rate was to be calculated. It is based on dividing its total budget by the value of its assessed taxable base. Each Settlement was to determine its tax rate by dividing its budget by the total value of its tax base.

The net result of the Amended Budget, by operation of the formula was to increase the total property tax bill levied against the four Applicants from $624,692.44 to $25,000,733. In short, it increased the Applicants’ property tax bills 40-fold. This additional $24.4 million from the Applicant taxpayers was allocated to repair or replace virtually all infrastructure at the Elizabeth Settlement, including $75,000 in repairs and renovations to each and every residence in the community.

There is no evidence that Elizabeth considered the economic impact or viability of this rate of taxation. This includes a complete absence of discussion on whether taxes in this amount could possibly be paid, and what the economic and legal impact on the subject landowners would be. The Applicants were never given an opportunity to provide an economic analysis of the impact of this level of taxation on their operations and their ability to continue owning their land interests in Elizabeth. The Supreme Court of Canada has repeatedly affirmed the common law right of citizens to seek judicial review of municipal bylaws taxing their property (Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2).

Métis Settlements are not completely analogous to municipal governments. They may well be afforded different and greater range in decision-making that touches upon the core animating values that underlie their existence, namely the preservation and promotion of Métis culture and society. That said, when Settlements levy property tax, they perform a function virtually indistinguishable from municipal governments, and derive their authority to do so through a similar process of sub-delegation. Moreover, the power they exercise in this capacity is no less impactful on the people against whom it is used.

Even if the Property Tax Bylaw was upheld in the face of its procedural defects, it is substantively unreasonable and must be quashed on that basis. Although unreasonable, it did not come about in a vacuum. The evidence in this case also showed that Elizabeth’s infrastructure need is very real, and that the stated aim of creating self-sufficient Métis communities has been thwarted by chronic capital underfunding.

The Court finds the impugned Property Tax Bylaw is the product of Métis frustration with the failure to achieve this objective. Ironically, the lack of adequate capital funding for Métis Settlements, or a viable model for the Settlements to raise capital funds through economic benefits derived on their territory, has driven Elizabeth to enact a measure that would severely, if not fatally, impair its ability to attract the investment it needs to develop a viable tax base in the future.

JE and KE v Children’s Aid Society of the Niagara Region, 2020 ONSC 4239

Application for judicial review allowed. The Board’s conclusion to deny adoption by the Applicants was unreasonable. The best interests of the Child, who is identified as Métis, require that she not be uprooted from the only family she has ever known.

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This is a successful application for judicial review from the Child and Family Services Review Board in Ontario [“Board”]. The three year old child in question [“Child”], upon her birth, was apprehended almost immediately by the Children’s Aid Society of the Niagara Region [“the Society”] and she was placed with approved foster parents, KE and JE [“the Applicants”]. KE and JE applied to the Society to adopt the child. DC-G and MG [“the Respondents”] also applied to adopt the Child. Neither family had any biological relationship to the Child although DC-G and MG had previously adopted two of the biological mother’s seven children by different fathers.

The Society’s investigation of the biological father raised the possibility that his paternal grandmother had been associated with Québec Métis. On further enquiry, the paternal grandmother advised the Society that she believed her father had “Indian blood” but this had never been confirmed and her parents were dead.

The Society approved the application of JE and KE and declined the application of DC-G and MG. The Society regarded the continuity of care and averting the risk of harm from disruption by moving the Child to another family, when there were no care-based reasons for doing so, as the dominant and overriding considerations in this case. DC-G and MG brought proceedings before the Board seeking to review the Society’s decision. The Board reversed the Society’s decision and directed the Society to place the child for adoption with DC-G and MG.

The Applicants are white, live in Ontario and are members of a Mennonite Brethren church community. The Respondents are also white, live in Ontario and are members of the Roman Catholic church. Neither faith has a particularly open or positive attitude toward LGBTQ issues, although both sets of parents applying to adopt the Child were clear that they would love and support the Child regardless of her eventual sexual or gender preferences.

It is obvious, given the evidence, that the Child would, as submitted by the Society, wish to remain with the only parents and family she had ever known rather than be uprooted and sent to live with strangers. While the weight to be given to this view would have been up to the Board, it was unreasonable not to consider the Child’s view at all. There was uncontested evidence before the Board that the Child had, over the course of three years living with the Applicants, developed a strong bond with the Applicants, their seven year-old son and the Applicants’ extended family. It was also uncontested that the Child had never met, or knew of the existence of, the Respondents or their adopted children. The Respondents suggested an openness to maintaining a relationship with the foster sibling, but there was evidence of openness on the Applicants part to maintain a relationship with the Child’s half-siblings also, which was not considered.

The Board belittled the Applicants’ efforts to learn about Métis culture as doing the “bare minimum,” but ignored the fact that the Respondents, on the evidence, had done effectively nothing prior to the hearing to learn anything about Métis traditions. In contrast, the Board relied exclusively on the Respondents’ prior involvement with Algonquin culture regarding one of their already adopted children. But, the burden of the Act is to recognize the distinct heritage and culture of Aboriginal peoples. First Nations, Inuit and Métis people are distinct peoples and the Board’s decision failed to recognize this (LE v Simcoe Muskoka Child Youth and Family Services (CFSYA s 192), 2019 CFSRB 86). As well, the Respondents’ education and adoption of Algonquin culture appears to have been developed over time after they had adopted their Algonquin-affiliated child. The Board, in taking the approach it did, held the Applicants to a standard that, by its own terms, was not met by the Respondents.

This Court found that the Board put too much emphasis on one couple’s past support of an Algonquin child that they had adopted. This was seen as “super-weighting” the relevance of Indigenous identity to adoption, which the Court found to be an inappropriate interpretation of Ontario’s current legislation (amended in 2017). It also bears emphasizing, given the Board’s approach to this case, that these mandatory and discretionary factors are not just abstract concepts; the extent of their applicability in a particular case must be rooted in an assessment of the evidence. They also noted that this was relatively unrelated to the alleged Quebec Métis heritage of the Child since the new legislation requires a distinction-based approach.

Morin v Enoch Cree First Nation, 2020 FC 696

Application granted. Procedural fairness applies even when not directly incorporated into a First Nation’s custom election code.

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This application for judicial review is brought pursuant to s 18.1 of the Federal Courts Act, regarding a decision by an Election Appeal Board, constituted in connection with the Maskekosihk Enoch Cree Nation #440 Election Law [“MECN Election Law”]. The majority of voters of the Maskekosihk Enoch Cree Nation approved the MECN Election Law in 2018. It was enacted and adopted into the laws of that First Nation.

In this matter, the Applicant, Mr. Jared Morin and Respondent, Mr. Shane Peacock are members of the Enoch Cree Nation and both ran for the position of band councillor in the 2019 election. The counting of the ballots for councillors was conducted and there was found that both Mr. Morin and Mr. Peacock had received 319 votes. However, this “tie” is disputed as a councillor’s ballot was found in a ballot box intended for votes for the chief. That councillor’s ballot was for Mr. Morin. As some candidates ran for election as chief or councillor, the outcome of the election for chief had the potential to affect the outcome of the election to the 10th councillor position.

The Electoral Officer declared this tie and, in accordance with s 17.2 of the MECN Election Law, Mr. Morin and Mr. Peacock’s names were placed in a hat. The name drawn from the hat was Applicant. The Election Officer declared him the winner of the 10th councillor position.

Mr. Peacock subsequently submitted a brief to the Election Appeal Board that asserted the Electoral Officer improperly handled the councillor’s ballot found in the ballot box for votes for chief during the counting of the votes for the position of chief. That ballot, according to the brief, should have been considered as spoiled and not counted. In that event, Mr. Peacock would have had 319 votes and Mr. Morin would have had 318 votes, there would not have been a tie vote, and there would have been no need to conduct a tie breaking hat draw. The 10th councillor position in the 2019 election for the Maskekosihk Enoch Cree Nation chief and band council were then overturned and a by-election ordered.

This Court finds that the Election Appeal Board breached the duty of procedural fairness owed to Mr. Morin by failing to give him notice of that appeal, and as a result, deprived him of the opportunity to address the appeal allegations. The Election Appeal Board also erred by failing to notify the Electoral Officer of the appeal and in failing to obtain the Electoral Officer’s written reasons for his decision, in breach of s 20.7 of the MECN Election Law. This was unreasonable and rendered its decision unreasonable.

Given that Enoch Cree Nation did not challenge Mr. Morin’s allegation that the Election Appeal Board breached procedural fairness, and given that he has been successful in his application for judicial review in that the decision of the Election Appeal Board will be quashed and remitted back for redetermination, it is appropriate that he should be awarded the costs of his application as against the Enoch Cree Nation.

 

‘Namgis First Nation v Mowi Canada West Ltd and Canada (Fisheries, Oceans and Coast Guard), 2020 FCA 122

Application allowed. There were concerns from a First Nation involving a salmon farming licence after learning of new scientific evidence regarding potential spread of disease. A novel adverse impact that arises since an original consultation, creates a fresh duty to consult.

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‘Namgis First Nation’s traditional territory is at the north end of Vancouver Island and includes a number of the adjacent islands, including Swanson Island, which lie between Vancouver Island and the mainland. A number of distinct wild salmon populations are found in this area. These populations are critically important to ‘Namgis for food, social and ceremonial purposes. Mowi operates an open net salmon facility adjacent to Swanson Island. That facility has been there since the early 1990’s and has been stocked with salmon during that period except for fallow periods between harvesting and restocking.

Restocking open-net facilities is at the heart of this litigation because there is an uncircumscribed risk of introducing disease agents into the waters used by wild salmon. That risk arises from the transfer of immature salmon, or smolts, from inland fish stations to the open-net aquaculture facilities. If disease-bearing fish are introduced into these waters and if those diseases spread to the wild salmon stocks, the results could be calamitous and perhaps irreversible.

‘Namgis First Nation appeals from the decision of the Federal Court dismissing its application for judicial review of the Minister of Fisheries and Oceans’ [“Minister”] decision to issue a Salmonid Introductions and Transfer Licence [“Licence”] to Mowi Canada West Ltd. [“Mowi”]. The Federal Court had before it three separate but closely related applications for judicial review which it dealt with in one set of reasons (Morton v Canada (Fisheries and Oceans), 2019 FC 143).

All three applications revolved around two risk factors for wild Pacific salmon in ‘Namgis’ asserted territory. The first is Piscine Orthoreovirus [“PRV”], a highly infectious virus that is known to be present in Canada. PRV is found in both farmed and wild salmon in British Columbia. The second is Heart and Skeletal Muscle Inflammation [“HSMI”] which is an infectious disease found in farmed Atlantic Salmon and has appeared in one aquaculture facility in British Columbia. ‘Namgis is convinced that PRV and HSMI pose a threat to the wild salmon stocks which it relies on for food, social and ceremonial purposes. The Minister views the threat level as very low. The science as to the relationship between these two threats, their prevalence, and the risk they pose to wild (as opposed to farmed) salmon is evolving.

Given the history of consultation between these parties, the issue is not whether there is a duty to consult in the abstract but rather whether a fresh duty to consult arose. The Federal Court’s reasoning does not address the question of whether a novel adverse impact had arisen since the original consultation, which would create a fresh duty to consult.

The third element required in the test for a duty to consult calls for a generous, purposive approach recognizing that Crown action has the potential to irreversibly affect Aboriginal rights (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 [“Rio Tinto”]). The adverse affect cannot be merely speculative, and it must be relevant to the future exercise of the Aboriginal right. The assessment of the duty to consult is forward looking. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right (Rio Tinto).

The science around PRV and HSMI is rapidly evolving so that it was not specifically covered in the original consultations concerning fish health. The risk of harm to the native salmon stocks may be greater than the Minister previously contemplated, thus the finding of a novel adverse impact.

Acho Dene Koe First Nation v Minister of Industry Tourism and Investment, 2020 NWTSC 19

Application dismissed. This matter is not subject to judicial review as it seems to be of a private contractual nature brought forward by a First Nation, therefore it is not of a sufficiently public character to bring into the public law realm.

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The Acho Dene Koe First Nation [“ADKFN”], claims Aboriginal title over lands upon which oil and gas exploration was being conducted by Paramount Resources Ltd. [“Paramount”], Chevron Canada Resources [“Chevron”] and Ranger Oil Limited [“Ranger”]. Neither the status, nor the validity of the ADKFN’s claim to Aboriginal title are before the Court.

The Director of Mineral and Petroleum Resources of the Department of Industry, Tourism and Investment for the Government of the Northwest Territories [“Director”] received a letter from the ADKFN explaining that the First Nation had entered into benefit agreements, called Community Investment Plans (“CIPs”), with Paramount, Chevron and Ranger. ADKFN asserted that each CIP related to specific licenses and interests held initially by each of the companies, and subsequently assigned to Paramount. ADKFN also asserted that the CIPs ran with the land to which the license and interest pertained and that Paramount, as the assignee, was bound by the CIPs with Chevron and Ranger, as well as its own.

Each CIPs’ stated purposes were to formalize the relationship between each of Paramount, Chevron and Ranger and ADKFN, and to provide for ongoing development of community relations. Among other things, they provided for financial contribution to a community development fund for the benefit of ADKFN members and a commitment to provide business opportunities to ADKFN members upon certain core competencies being demonstrated.

Although breaching of the CIPs is not before the Court, in its letter to the Director, ADKFN alleged that Paramount breached the CIPs and that consequently, Paramount was in violation of any licenses, permits or approvals that are contingent on compliance with such agreements. The Director replied by providing a general explanation of the benefits plans and approval process, noting that a benefits plan includes a commitment from the operator to implement strategies for training and employment, and procurement and contracting, but does not generally include guaranteed outcomes. He also noted that during the approval process, operators may enter into private contracts, such as the CIPs provided by ADKFN, to implement the strategies in the benefit plan, but that the terms of any private agreement do not thereby become terms of the benefit plan.

The AKDFN asks this Court to determine whether the Director in his letter erred by not assessing whether Paramount had complied with the benefits plans, declining to enforce the CIPs, and determining that the benefits plans are privileged. The Court finds that the Director’s letter is not subject to judicial review. The Director was not acting in accordance with “state authority” and the issues put before him were not of a sufficiently public character to bring the matter into the public law realm. He was not exercising a statutory or other public law power and, therefore was not acting as a tribunal. The Director received letters from ADKFN’s counsel, making a number of requests in relation to something that is entirely a private law matter. His response to the ADKFN did not become a tribunal and ADKFN’s interest did not take on a public dimension.

Even if a judicial review was allowed, it would be dismissed as the Director’s conclusion on the nature of the benefits plans as well as the Minister’s obligation to enforce the CIPs, would be assessed on a standard of reasonableness. His conclusion on the privilege question would be assessed on a standard of correctness as the privilege is statutorily protected. The Director’s assessment of the nature of the benefits plans is both reasonable and correct.

The Government’s duty to consult was not engaged because at the heart of ADKFN’s concern is a private contractual dispute with Paramount, not a proposed government action or decision. All that the ADKFN requested was an “enforcement” of the CIPs, in furtherance of its private contractual dispute with Paramount. That is something which neither the Minister, nor the Director have the authority to do and it is not altered by the Government’s fiduciary obligations to the ADKFN.

While the Director is employed in the public service, there is nothing in the applicable statutes that confers authority or imposes a duty upon him to decide or enforce anything, nor is there any evidence that any such authority or duty has been delegated to him. Accordingly, the Director does not fall into the category of a “public officer” in these circumstances.

 

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).