Da’naxda’xw/Awaetlala First Nation v BC Hydro, 2017 BCSC 2179

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Application for judicial review dismissed. A party seeking a remedy in damages must do so in an action, not in an application for judicial review.

Kleana Power Corporation [KPC], proposed a run-of-the-river hydro-electric project on the Klinaklini River (the “Project”) in 2008 within the asserted traditional territory of the Da’naxda’xw/Awaetlala First Nation [DAFN]. KPC wished to submit a proposal in the 2008 “Clean Power Call” issued by British Columbia Hydro and Power Authority (“BC Hydro”), with a view to being awarded an energy purchase agreement for the sale of electricity generated from the Project to BC Hydro. The DAFN considered the Project to be an economic opportunity consistent with their cultural and ecological interests. The proposed boundary of a protected conservancy, however, was within the traditional territory claimed by the DAFN, which created a barrier to the Project. Both petitioners say that in 2008 they received an assurance from the respondent Minister of Energy, Mines and Natural Gas (the “Energy Minister”). The assurance was that when the Project could proceed, but if KPC lost the opportunity to participate in the 2008 Clean Power Call due to a delay in amending the conservancy boundary, then the Energy Minister would direct BC Hydro to enter into negotiations with KPC for an energy purchase agreement at a price for power that was linked to the results of the winning bids in the call. The petitioners say that the Energy Minister’s assurance was clear, unambiguous and unqualified, therefore they acted in reliance on the Energy Minister’s assurance. They spent time and resources pursuing the boundary amendment necessary for the Project to proceed.

The petitioners sought judicial review in 2010, of the refusal of the then Environment Minister to recommend to the Lieutenant Governor in Council an amendment to the conservancy boundary. The reviewing judge found that the Environment Minister had a legal duty to consult with the DAFN concerning their request for an amendment to the boundary with a view to considering a reasonable accommodation and had failed to fulfill this duty to consult (Da’naxda’xw/Awaetlala First Nation v British Columbia (Environment), [2011] 3 CNLR 188 (BCSC) “Da’naxda’xw 2011”). The Court concluded in Da’naxda’xw/Awaetlala First Nation v British Columbia Hydro and Power Authority, 2015 BCSC 16 (“Da’naxda’xw 2015”) that the petitioners had not established that they were entitled to any remedy on the administrative law grounds raised. But declarations were issued to the effect that the DAFN were entitled to further relief and a remedy in respect of the original breaches of the duty to consult. The petitioners appealed and the Energy Minister and Province cross-appealed with respect to the declaratory relief that was ordered. In Da’naxda’xw/Awaetlala First Nation v. British Columbia (Energy, Mines and Natural Gas), 2016 BCCA 163 (“Da’naxda’xw CA”), the Court of Appeal dismissed the petitioners’ appeal and ordered that the declaration be set aside. The cross-appeal was allowed and the petition was remitted for reconsideration of the remedy for the DAFN. This proceeding was an application for a judicial review.

The Amended Petition was in part premised on the asserted failure of the Energy Minister to give a direction to BC Hydro consistent with what the DAFN alleged was the commitment given to them in 2008, and was how the application was framed, responded to, and argued. This petition has never been further amended nor was the Environment Minister named as a respondent. No relief was sought in respect of the consultation ordered in Da’naxda’xw 2011, or the actions of the Environment Minister in 2008. There was no pleaded case of a failure to comply with the Da’naxda’xw 2011 order. Since Da’naxda’xw have never sought leave to further amend the Amended Petition in any respect, no further remedy can now be granted as it is res judicata.

Given the conclusions in Da’naxda’xw 2015 regarding the scope of the Minister’s commitment, and the dismissal by the Court of Appeal of the petitioners’ appeal, there are only two grounds on which to possibly grant a remedy for the DAFN: (1) the Environment Minister’s 2010 breach of the duty to consult regarding the request by the DAFN for an amendment to the conservancy boundary; and (2) the consultation that followed the Da’naxda’xw 2011 order, up to and including the Order-in-Council amending the conservancy boundary in June 2012. Neither can provide support for a remedy for the DAFN in the circumstances of this case. Whether the Environment Minister breached the duty to consult the DAFN in 2010 was the central issue in Da’naxda’xw 2011 and led to the remedy granted in that matter. It is a final order, and neither the Environment Minister nor the DAFN appealed. These cannot now be relitigated based on the outcome of Da’naxda’xw 2015 and the subsequent dismissal of the DAFN’s appeal in Da’naxda’xw CA.

Where a pleading fails to fulfill its function, that defect should not be overlooked, even in Aboriginal litigation. “The trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight” (Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56. The Amended Petition sought judicial review and relief only in respect of the conduct of the Energy Minister. The petitioners have never sought leave to further amend the Amended Petition. There was no complaint that there was a failure to comply with the order for further consultation or a breach of the duty owed to the DAFN that followed the Da’naxda’xw 2011order, nor was it asserted that the consultation was inadequate. A failure to plead the adequacy of consultation results in the issue not being properly before the court (Adams Lake Indian Band v Lieutenant Governor in Council, 2012 BCCA 333). Any further consultation concerning the decisions made by the Environment Minister in 2008 and 2010 could not lead to anything other than a discussion about some measure of compensation, in other words, monetary damages.

 

Quewezance v Federation of Sovereign Indigenous Nations [FSIN], 2018 SKQB 313

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Application dismissed for a judicial review and a quashing of the decision to divest Mr. Quewezance as a Senator of the FSIN. The FSIN is not a governmental body and as such its decisions are not subject to judicial review as there is no freestanding right to procedural fairness with respect to decisions taken by voluntary associations.

Theodore Quewezance applied for an order to have a decision to be quashed by the Federation of Sovereign Indigenous Nations [FSIN] which had him removed him from the position as a Senator of the FSIN through judicial review. Such jurisdiction depends upon the presence of a legal right, such as a breach of a private law wrong in contract, tort or other valid cause of action, that Mr. Quewezance has made no claim. There cannot be a judicial review of a freestanding right to procedural fairness.

Judicial review, in its origin and present conceptualization, is a public law concept under which superior courts engage “in surveillance of lower tribunals” in order to ensure that these tribunals respect or adhere to the rule of law (Knox v Conservative Party of Canada). It is well established that the decisions of Indian Bands are subject to judicial review. However, the FSIN was created or established by its Convention in 1982, which was an agreement entered into among all Indian Bands, except one, within the Province of Saskatchewan. The Court agrees with how the FSIN has been described in Battlefords Tribal Council Inc. v Federation of Saskatchewan Indians Inc.: the FSIN is a political organization with undetermined legal status that is likened to a voluntary unincorporated association of the Chiefs in Saskatchewan. The FSIN represent the interests of First Nations persons in Saskatchewan based upon the principles and procedures outlined in their founding document, The Conventions Act, 1982.

By way of analogy, rural municipalities in Saskatchewan are local governments by virtue of The Municipalities Act. However, the organization Saskatchewan Association of Rural Municipalities [SARM], formed by the Rural Municipalities to advance their collective interests, is a voluntary organization and not a governmental body. SARM’s decisions are not subject to judicial review. The Court in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, stated that first, judicial review is limited to public decision makers, which the Judicial Committee of SARM is not, and second, there is no free-standing right to have such decisions reviewed on the basis of procedural fairness.

WSÁNEĆ School Board v BC Government and Service Employees’ Union, 2017 FCA 210

The Doré framework is applicable when an administrative tribunal’s decision making engages the underlying principles and values of section 35 of the Constitution Act, 1982, and such decisions are to be reviewed on the same standard of reasonableness.

This case involved an application for judicial review by the WSÁNEĆ School Board (the WSB) seeking to set aside a decision of the Canada Industrial Relations Board (CIRB). Specifically, the WSB challenged a decision of the CIRB to dismiss an application from the WSB in which it sought to exclude employees teaching WSÁNEĆ language, beliefs, and culture in the SENĆOŦEN Immersion Program from the all-employee bargaining unit of the BC Government and Service Employees’ Union (BCGSEU).

The WSB argued that including the SENĆOŦEN employees in an all-employee bargaining unit would negatively impact the constitutional rights of the WSÁNEĆ First Nations to control the transmission of their language and culture, as entrenched in ss 25 and 35 of the Constitution Act, 1982. The WSB submitted that the Canada Labour Code must be interpreted and applied in a manner that respects these constitutional rights and takes into account the values and principles that underpin them, including the need for reconciliation. The WSB also asserted that the CIRB had breached its procedural fairness rights by failing to grant it an oral hearing. The WSB had unsuccessfully sought an oral hearing before the CIRB on the basis that this would allow for an explanation of the WSÁNEĆ beliefs and teachings in accordance with their oral traditions.

The Federal Court of Appeal held that the CIRB’s decision to dismiss the application was reasonable and that the CIRB was not obligated to provide an oral hearing.

Writing for the court, Gleason JA accepted that correctness is the appropriate standard for determining whether an oral hearing is required as part of procedural fairness though he also stated that the circumstances in which a party’s procedural fairness rights may be said to be violated are narrow. With respect to the merits of the CIRB decision, Gleason JA noted that reasonableness was generally the applicable standard to CIRB decisions that interpret and apply the Canada Labour Code and held that WSB’s invocation of ss 25 and 35 of the Constitution Act, 1982 did not require him to reach a different conclusion here.

The WSB did not seek to have the CIRB rule on the scope of its Aboriginal rights to control education nor did it argue that such rights brought the labour relations of the SENĆOŦEN employees outside the purview of the Code. Instead, WSB invoked principles and values enshrined in ss 25 and 35 of the Constitution Act 1982, and argued that these required the CIRB to determine that the SENĆOŦEN employees should be excluded from BCSGEU. Gleason JA found this argument to be analogous to the those advanced in Doré v Barreau du Quebec, 2012 SCC 12, [2012] 1 SCR with respect to the need for an administrative tribunal to balance Charter values against other administrative law considerations. He accepted that the Doré framework could be applied to principles and values underlying s 35 of the Constitution Act, 1982.

Gleason JA invoked the principle that employee units should not be fractured without compelling evidence. As indicated by the CIRB, compelling evidence might include geographic factors, specific statutory provisions and the likelihood that a larger unit may not be viable. Ultimately, Gleason JA found that there was no evidence the WSB would lose their control over the way the SENĆOŦEN employers performed their duties. He also pointed out that the application may have been premature as there was no way to know whether the BCGSEU would accept terms and conditions that the WSB sought for the SENĆOŦEN employees and the WSB raised concerns about an eventual strike that were premature and theoretical in the absence of any evidence that a strike was likely.

With respect to procedural fairness, Gleason JA noted that the request for an oral history was neither clearly made nor well supported by the evidence. Moreover, he pointed out that it was well within the Court’s powers under the Canada Industrial Relations Board Regulations to decide the matter without an oral hearing, which the WSB knew prior to making their application.

Case Watch for November 2016

FROM OUR PUBLICATIONS DESK

Case Watch

The following decisions came across our desk over the past month:

Equality rights of Métis children & families in child protection

Catholic Children’s Aid Society of Hamilton v GH, 2016 ONSC 6287: The Ontario Superior Court of Justice released a decision in a Crown wardship application where it was found that the definitions of “Indian”, “Native person”, and “Native child” in Ontario’s Child and Family Services Act were invalid on the basis that they unjustifiably infringe s 15 of the Charter. The Court found that the impugned definitions do not extend to all individuals who self-identify as being Aboriginal. In fact, all parties conceded that they do not extend to Métis children. The Court also found that the Act afforded significant special protections for individuals falling into these definitions at every stage of a child protection intervention. The Court recognized that all Aboriginal peoples, including Métis, have been subject to a legacy of prejudice, stereotyping, and disadvantage. With this context in mind, the Court determined that the definitions created distinctions based on the analogous ground of “Aboriginality without membership in a community designated as “Native” under the [Act]”. It also concluded that these distinctions created or perpetuated disadvantage for Métis children and their families due to their inability to access the special protections under the Act. In conducting this analysis, the Court noted that the Act clearly created these unfair and objectionable disadvantages on its face and this could be discerned through logical reasoning alone. There was no need for social science evidence and empirical data. As no s 1 argument was advanced, the infringement was not saved. A suspended declaration of invalidity was issued and it was ordered that the Métis child in this case be treated as if he were an Indian, Native person or Native child within the meaning of the Act.

Inadequate investigation of vote-buying allegations by INAC

Good v Canada (Attorney General), 2016 FC 1272: The Federal Court released a decision allowing in part an application for judicial review of INAC’s dismissal of an election appeal under the Indian Act. The applicant first unsuccessfully sought to appeal the March 2014 election of the Red Pheasant First Nation through INAC based on allegations of misconduct by the electoral officer and corruption in the form of vote-buying. She then sought judicial review of INAC’s rejection of that appeal. However, a subsequent election had since taken place in March 2016. The Court found that INAC’s delegate erred by choosing to dispense with any investigation of the applicant’s vote-buying allegations and proceeding to dismiss the appeal on the basis that corruption had not been proven on a balance of probabilities. The Court noted that this approach appears to have become settled practice within INAC’s Elections Unit. While the Court was sympathetic to INAC’s desire to streamline its management of appeals, it had significantly changed the very nature of the appeals process in a manner tantamount to attempting to amend the law via internal policy. The Court took no issue with how the delegate addressed the issue of electoral officer misconduct, but found that the delegate’s refusal to investigate conflicting evidence on vote-buying was unreasonable, based upon an error of law and procedurally unfair. While these issues were moot due to the subsequent election, the Court exercised its discretion to deal with the central controversy between the parties as roughly 40% of First Nations hold elections under the regime at issue in this case.

Relevance of Aboriginal equity stake to remedy in consultation case –

Michipicoten First Nation v Ontario (Minister of Natural Resources and Forests), 2016 ONSC 6899: The Ontario Superior Court of Justice dismissed an application for judicial review of provincial approvals for the Bow Lake Wind Farm Project on the shared traditional territory of the Michipicoten and Batchewana First Nations in northeastern Ontario. Michipicoten argued that the Crown breached its duty to consult and sought to quash the approvals, preclude further approvals until more consultation takes place, and have the court remain seized of remedies or order removal of the infrastructure, remediation of the lands, and costs. The Court noted that Michipicoten had inexplicably delayed several months in pursuing and perfecting its application for judicial review, which caused the proponent and Batchewana, which has a 50% interest in the project, serious harm. For this reason, the Court dismissed the application on its own motion. In the alternative, the Court went on to conclude that consultation was adequate as Michipicoten failed to provide any evidence of potential adverse impacts on its Aboriginal or treaty rights in spite of many requests to do so. Furthermore, the Court concluded that the remedy sought in terms of decommissioning the project was inappropriate. Michipicoten argued that a proponent’s commercial interests may not come into play in determining the balance of convenience in a consultation dispute between the Crown and an Aboriginal community. However, the Court found this principle inapplicable in this case since Batchewana would face irreparable harm if the relief sought was granted.

Validity of a Will under the Indian Act not providing for spouse –

Poitras v Khan, 2016 SKQB 346: The Saskatchewan Court of Queen’s Bench allowed an application for letters probate under a Will created pursuant the Indian Act. The testator met the man who became her husband and married him after she had already made her Will. Under provincial legislation, the testator’s spousal relationship would have automatically revoked her Will. However, the testator was a status Indian living on reserve and there was no such provision under the Indian Act to invalidate her Will automatically. Under the Indian Act, the Minister had the power to declare the Will void if it imposed hardship on persons to whom the testator had responsibility or was contrary to the interests of the band or the public. In this case, the Minister had referred the matter to the Court, conferring its power to declare the Will void on the Court. The testator’s husband, Mr. Khan, sought to invoke this power on the basis that he was not provided for in the Will. The Court confirmed the validity of the Will, but also noted that Mr. Khan could still potentially seek a claim for one half of the testator’s family property accrued from the date of marriage until death under provincial legislation.

Canadian Human Rights Tribunal’s jurisdictional limits re: Indian Act –

Beattie v Canada (Attorney General), 2016 FC 1328: The Federal Court dismissed an application for judicial review of a decision of the Canadian Human Rights Tribunal where a complaint was dismissed as being solely a challenge to legislation beyond the Tribunal’s jurisdiction. The applicant, Mr. Beattie, sought to register two leases and an assignment of lease in the Indian Lands Registry. The Registrar rejected the applications on the basis that the leases did not include the Crown as a party and no ministerial approval had been provided. Since the leases could not be registered, the assignment could not be registered either. As a result of this decision, the applicants brought a complaint to the Tribunal alleging that the respondent had discriminated against them on the basis of their race, national or ethnic origin by denying a service customarily available to the public. The Tribunal dismissed the complaints on the basis that they were beyond its jurisdiction since they were challenging the Indian Act itself, which obliged the Registrar to reject the leases and assignment. The Court was satisfied that the Tribunal’s decision was reasonable and it was reasonable to rely on other Federal Court and Tribunal decisions where such challenges to legislation were dismissed as beyond the Tribunal’s jurisdiction. The Court also rejected the applicants’ assertion that title to the reserve lands at issue in this dispute were vested in an individual pursuant to either a Certificate of Possession or customary tenure.

Court’s duty to explicitly consider & inquire into Gladue factors –

R v Park, 2016 MBCA 107: The Manitoba Court of Appeal allowed an appeal from sentence for impaired driving and drug possession due in part to the sentencing judge’s failure to adequately consider Gladue factors. It was conceded that defence counsel during the sentencing hearing did not address Gladue factors other than to note that the accused was Aboriginal. No Gladue report was ordered. The Crown argued that defence counsel expressly waived the Gladue rights of the accused whereas counsel for the accused on appeal argued that the Court had a duty to make further inquiry when no advocacy was provided on Gladue factors during sentencing. The Court of Appeal found there was no express waiver in this case. Defence counsel at sentencing acknowledged there were Gladue factors but focused on other arguments. A waiver must be express and clear. Both defence and Crown counsel have an obligation to bring forward Gladue information. Where that does not happen, the Court may need to go further and has a duty to at least make further inquiries. The Court must also make explicit its consideration of Gladue factors and its determination that it has adequate information on those factors before it. It is unsatisfactory for both the offender and the public to have to infer such circumstances were properly considered. The sentencing judge failed to expressly confirm that Gladue factors were considered and failed to clarify defence’s reliance on Gladue, which in turn had an impact on the sentence. The sentence was varied.

No need for ‘linkage’ between Gladue factors & offence –

R v Predham, 2016 ABCA 371: The Alberta Court of Appeal allowed an appeal from sentence with respect to convictions for driving while disqualified, breach of recognizance, failure to appear and possession of a stolen licence plate. The appellant argued that the sentencing judge erred in failing to give appropriate weight to his Gladue factors, among other things. In particular, the appellant took issue with the sentencing judge’s reasons where it was suggested that Gladue factors were less relevant to the offence of driving while disqualified in the absence of alcohol, drugs or violence. The sentencing judge stated that there must be “some relationship between the Gladue factors and the offending in order for there to be that sort of linkage”. The Court of Appeal held that it was an error of law to require a linkage between Gladue factors and the offending conduct. The Court stated that it is also an error to carve out a certain category of offences as being immune from the Gladue analysis. The Court was also satisfied that the sentencing judge’s error influenced his ultimate decision. The sentence was varied.

Injunction against Cleveland baseball team’s name & logo denied –

Cardinal v Major League Baseball, 2016 ONSC 6929: The Ontario Superior Court issued its reasons for dismissing an urgent interim injunction application to restrain the Cleveland baseball team, Rogers Communications, and Major League Baseball (MLB) from displaying the team’s name or logo during a game in Toronto and while the underlying federal and provincial human rights complaints proceed. In the underlying complaints, the applicant, Douglas J. Cardinal, is alleging that the use of the team’s name and logo constitutes prohibited discrimination and harassment against him on the grounds of race, ancestry, colour, ethnic and national origins, and constitutes a publication or display intended to incite infringement of the Ontario Human Rights Code. The Court held that it had jurisdiction over the application, rejecting MLB’s argument that it ought to allow the United States Supreme Court to determine the underlying issues in this case based on principles of comity. The Court was also satisfied that the parties raised serious issues to be tried in terms of whether a service had been offered and whether the team’s name and/or logo offend the provisions of federal and Ontario human rights legislation, as well as the relevance of MLB’s freedom of expression to the dispute. However, the Court did not accept the applicant’s assertion that he would sustain irreparable harm if an injunction was not granted, noting that damages were available and disputes over use of the impugned name and logo have been ongoing for years. The Court noted that the applicant sought a change to the status quo and his last minute application, if granted, would materially prejudice the respondents. The issue of delay went to both the question or irreparable harm and the balance of convenience.

Settlement approved in Newfoundland & Labrador school claims –

Anderson v Canada (Attorney General), 2016 NLTD(G) 179: The Newfoundland and Labrador Supreme Court approved the terms of a $50 million settlement in a class action brought by Aboriginal individuals who attended schools, dormitories or orphanages in the province between 1949 and 1980. The plaintiffs claimed that Canada breached a fiduciary duty to the students who attended these facilities to protect them from actionable physical or mental harm. The Court was satisfied that the settlement was fair, reasonable, made in good faith, and in the best interests of the class as a whole. It was also satisfied that the fees and disbursements of the plaintiffs’ counsel were fair and reasonable. The settlement includes both General Compensation Payments for years that students resided at the facilities at issue, and Abuse Compensation Payments that depend on the harm individual students suffered. The settlement provides for a confidential paper-based claims process and Canada is committed to funding mutually agreeable commemoration and healing initiatives over and above its compensation funding.

Tax Court’s exclusive jurisdiction over tax assessment challenges –

Horseman v Canada, 2016 FCA 252: The Federal Court of Appeal dismissed an appeal from a decision to strike the appellant’s claims as falling under the exclusive jurisdiction of the Tax Court of Canada. The appellant received a Notice of Assessment and Requirement to Pay $59,000.06 of outstanding GST. He initiated this Federal Court action for a declaration that the Requirement to Pay is null and void and contrary to the Indian Act, Treaty No. 8, and s 35 of the Constitution Act, 1982. The Court found that this challenge was properly characterized as an indirect challenge to a tax assessment, making it plain and obvious that the Tax Court had exclusive jurisdiction. The Tax Court has jurisdiction to consider the constitutional validity, applicability or operability of federal legislation and regulations and can issue remedies if a notice of constitutional question is properly served. It is also well-established that the Tax Court can determine claims under s 87 of the Indian Act over the applicability of tax requirements, or involving tax exemption claims under Treaty No. 8. Such assertions are properly tested in the Tax Court.

Provincial human rights tribunal’s jurisdictional limits re band store –

Dinsmore v Slenyah Store, 2016 BCHRT 176: The British Columbia Human Rights Tribunal dismissed a human rights complaint alleging discrimination in the area of employment on the basis of colour or race with respect to a business in Fraser Lake, British Columbia known as the Slenyah Store. The business was operated by the Stellat’en First Nation up until April 2014. The majority of its customers are status Indians who are able to purchase gas and cigarettes at tax exempt rates there. In 2013, the store was in serious financial difficulty. It was kept afloat via overdraft protection from Stellat’en and Stellat’en paid the store’s back taxes to get it out of its financial difficulties. In 2014, the store was incorporated to be operated at arm’s length through a limited partnership. As a result of these changes, all the store’s employees were laid off by Stellat’en and encouraged to reapply for positions with the limited partnership that would operate the store going forward. The Tribunal found that while the store was operated by Stellat’en it was an integral part of the First Nation’s overall governance and operations. Its purpose was to permit members to avail themselves of their tax-free status, it was financially integrated with the First Nation, its employees were employees of the First Nation, and its operations were continuously concerned with the status, rights and privileges of Stellat’en’s members. As a result, the store fell under federal jurisdiction and outside the Tribunal’s jurisdiction while it was operated by Stellat’en. While operated at arm’s length through a limited partnership, however, the store was a provincial undertaking subject to the Tribunal’s jurisdiction. The Tribunal went on to dismiss the complaint against both entities on the ground that it had no reasonable prospect of success if it were to proceed on its merits.

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