Beaucage v Métis Nation of Ontario, 2020 ONSC 483

Motions dismissed. Canada has entered into a recent agreement with the Métis Nation of Ontario that brings closer the recognition of it as a government entity. However, this agreement does not retroactively apply to a past decision on membership, nor does the agreement subject it to public law remedies while it was still considered a private law entity.

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The applicant asks for a review of a decision that quashed his application for judicial review. In 2017, he was denied membership in the Métis Nation of Ontario [“MNO”]. He sought judicial review of that decision. The motion judge determined that MNO is a private voluntary organization incorporated without share capital under the Corporations Act. While MNO aspires to be recognized as a government with public law responsibilities to its citizens in Ontario, “that objective has not yet been achieved.”

The motion for fresh evidence concerns the Métis Government Recognition and Self-Government Agreement between MNO and Canada [“2019 Agreement”] that did not exist at the time of the hearing that quashed his application for judicial review. Parties are in agreement that admitting fresh evidence on appeals applies to this motion (Palmer v R, [1980] 1 SCR 759). But because this agreement did not exist at the time of the 2017 hearing, the only question is whether the 2019 Agreement would have likely affected that result.

For the 2019 Agreement to have affected the result, either: 1) it must be seen as confirming that in 2017 MNO was already a government; or 2) the entry into the 2019 Agreement must be seen to have made a change to the status of MNO that retroactively applies to the impugned decision. Neither argument can succeed. The fact that MNO was closer to being a government, but had still not yet arrived at formal recognition could not have affected that outcome. If, on the other hand, the 2019 Agreement made a substantial change in 2019 such that MNO is now a government, there is still not basis that the 2019 Agreement has a retroactive effect on the 2017 decision concerning the applicant.

It is inconsistent for the court to find that MNO is subject to the burden of judicial review under the public law as it if were already a government, while MNO is denied the benefits of governmental recognition under Canadian law. It would be invasive and disrespectful for the public law to subject the MNO to judicial review as if it were a government while at the same time denying recognition of such status.

 

Gitxaala Nation v Wolverine Terminals ULC et al, 2020 FC 382

Motion dismissed. The Metlakatla First Nation and Lax Kw’alaams should not be joined as respondents or interveners in the Gitxaala Nation’s underlying application for judicial review.

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Wolverine Terminals ULC, has proposed to construct and operate the Prince Rupert Marine Fuels Service Project [“Project”] in the Port of Prince Rupert. The Project is a floating refuelling station intended for refuelling vessels calling in the Port. It is located on federal lands and is subject to a review under the Canadian Environmental Assessment Act [“CEAA”]. Under the CEAA, the Prince Rupert Port Authority and Transport Canada [“Federal Authorities”] could not enable the Project to proceed unless a determination was made that the Project was not likely to cause significant adverse environmental effects. As part of its evaluation process, the Federal Authorities consulted the six First Nation communities with asserted rights and interests within the Project area regarding potential environmental effects that included the Gitxaala Nation [“Gitxaala”], Metlakatla First Nation, Lax Kw’alaams, Gitga’at First Nation, Kitsumkalum, and Kitselas.

In the underlying application for judicial review [“Application”], Gitxaala challenges the decision of the Federal Authorities that the Project will not cause significant adverse environmental effects pursuant to the CEAA, and that the Crown’s obligation to consult with respect to the Project has been fulfilled [“Decision”]. The Metlakatla First Nation and Lax Kw’alaams [“Moving First Nations”] have brought a motion for an order to allow them to be joined as party respondents in the Application. In the alternative, they seek an order to allow them to jointly intervene. This motion is dismissed.

If the Moving First Nations had a direct interest in quashing the Decision that was actually made, they could and should have asserted it by bringing their own application for judicial review on a timely basis. It would be an “impermissible end-run” for them to join the proceedings, in substance as co-applicants, well after the limitation period for applying has passed (Tsleil-Waututh Nation v Canada (AG), 2017 FCA 102).

The Court is not persuaded that the relief sought, if granted, will inevitably impose legal obligations on the Moving First Nations to re-engage in the consultation process. For example, if the Decision is set aside on the narrow basis that the Federal Authorities failed to adequately consult with Gitxaala, due to unique gaps or inadequacies in the specific consultation process undertaken with Gitxaala, it does not inevitably follow that the Federal Authorities will be required to also re-consult with the other five First Nation communities with asserted rights and interests within the Project area. Even if the relief sought by Gitxaala would require the Federal Authorities to re-engage with the Moving First Nations, the Court is not satisfied that the Moving First Nations would be directly affected by the relief sought in the Application.

The Moving First Nations argue that the relief sought will adversely and directly affect their legal rights by causing them to become legally obligated to participate in a more onerous statutory and consultative process, and incur additional time and expense to re-engage with the Federal Authorities. They rely on the legal principle of a reciprocal duty on First Nations to consult with the Crown in good faith and they cannot, by their conduct, place unnecessary obstacles in the way of the consultation process (Ahousaht First Nation v Canada (Fisheries and Oceans), [2008] 3 CNLR 67).

The reciprocal duty imposed on First Nations is significantly different in nature from the duty imposed on the Crown to consult with First Nations. The Crown’s duty to consult with First Nations gives rise to co-extensive right in First Nations to be consulted, and the breach of which is actionable in the Courts. The same cannot be said of the reciprocal duty on First Nations to engage in consultation with the Crown. Unlike the Crown’s duty to consult, the reciprocal duty imposed on First Nations is not an enforceable legal obligation.

The Moving First Nations have not satisfied the Court that their participation as respondents is necessary to determine the adequacy of Gitxaala’s consultation process, or demonstrated how this issue cannot be effectively and completely settled unless they are made respondents on the Application (Canada (Minister of Fisheries and Oceans) v Shubenacadie Indian Band, 2002 FCA 509).

As for being added as intervenors, acting under the guise of having a different perspective, an intervener cannot adduce fresh evidence or make submissions that are in reality fresh evidence (Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 151). A proposed intervener must rely on the same evidence in the record that others are relying upon and focus on how they can assist the Court’s determination of the existing proceedings. The Moving First Nations’ proposed position appears to be an expansion of the issues raised in the existing Application. If they intend to argue, in effect, that Gitxaala has no valid asserted claim to the potential existence of Aboriginal title or rights in the project area, the corollary to that argument would be that no duty to consult arose. Gitxaala does not challenge the Decision based on any such finding, but rather on the basis that the Federal Authorities failed to adequately consult with Gitxaala. While the Moving First Nations assert that their participation will assist, it is the Court’s view they have not discharged the burden of proof to demonstrate how it will assist (Forest Ethics Advocacy Association v Canada (National Energy Board), 2013 FCA 236).

Siksika Health Services v Health Sciences Association of Alberta, 2019 ABCA 494

Appeal dismissed. The chambers judge did not err in denying judicial review and affirming the decision of the Alberta Labour Relations Board in accepting jurisdiction over labour relations issues involving the parties.

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The appellant [“Employer”] appeals the chambers judge’s decision denying judicial review and affirming the decision of the Alberta Labour Relations Board to accept jurisdiction over labour relations issues involving the parties.

The specific operation of Siksika Emergency Medical Services [“SEMS”] is governed by an agreement between the Employer and Alberta Health Services, the provincial health authority. SEMS provides emergency medical services based in the First Nation in accordance with provincial regulation in return for monthly provincial payments. The Employer is also able to direct bill patients for services. The agreement between Alberta Health Services and Siksika Health Services Corporation [“Agreement”] includes the following policy and interpretive statement: “The parties acknowledge the historical and contemporary importance of the treaties to the relationship between the Crown, Canada and Siksika Nation. It is intended that nothing in this Agreement shall have the effect of, or be interpreted as, limiting or expanding any fiduciary relationship between Canada and the First Nations people.”

The respondent [“Union”] was not a party to the Agreement but the Union did not challenge this background philosophy. In this respect, both Canada and the province are expected to live up to the honour of the Crown in their dealings with Treaty and Aboriginal rights. The Union sought certification as the bargaining agent for all ambulance attendants employed with SEMS.

The Employer takes the position that all of the workers in SEMS and under its authority are performing tasks which amount to carrying out a federal undertaking respecting the supply of health and medical services to the people covered by the Treaty and to the First Nation. As such, the Employer argues that it is a federally regulated employer and any labour matters should be dealt with under federal rather than provincial legislation. The Board and the chambers judge had found otherwise.

The role of this Court is to step into the shoes of the chambers judge when it comes to reviewing the decision of the Board (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36). A court must first apply the functional test to examine the nature, operations and habitual activities of the entity to see if it is a federal undertaking. If so, its labour relations will be federally regulated. Only if this inquiry is inconclusive should a court proceed to an examination of whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue (NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, [2010] 4 CNLR 284 [“NIL/TU,O”]).

The chambers judge concluded that the functional analysis in NIL/TU,O did not support the Employer’s position and dismissed the application for judicial review. It was concluded that the Board correctly found that the presumption of provincial regulation of labour relations was not rebutted in this case and that the Board correctly determined it had jurisdiction over the Union’s certification application.

The Employer argues that because the Indian Act included certain provisions related to the medical and health services for the First Nation, then Parliament had made “provision” for the subject of medical and health services for the First Nation. The Employer said the duty of Canada to provide medical and health services to the First Nation could in part be derived from the “medicine chest” reference in Treaty No 6. That concept has evidently been accepted by Canada as influencing the promises to “take care of you” in the development of Treaty No 7 governing the lands in Alberta where this First Nation is located. The Employer referred to the language of Treaty No 7, which attracts a liberal reading in relation to the promises made to Aboriginal people as re-affirmed by s 35 of the Constitution Act, 1982.

The Court’s role on this appeal of a judicial review decision is restricted to determining whether the chambers judge erred and whether the Board erred in taking jurisdiction to the extent that it did so. This Court will not express any opinion beyond a legality determination respecting what the Board did, let alone express any policy perspective on any aspect of the ongoing effort to achieve social and legal reconciliation of Canadian society with Indigenous peoples.

The Court found no error in the chambers judge conclusion that the Employer’s position was without merit after applying the functional analysis in NIL/TU,O. Funding by Canada alone would not constitute direction of the work being done. The Agreement sets standards and links the service to compliance with laws and guidance applicable otherwise to similar medical and health services in Alberta.

Application of the functional test to the facts found here does not lead to the conclusion that SEMS is a federal undertaking under NIL/TU,O. Section 88 of the Indian Act extends provincial laws to Indians ex proprio vigore except to the extent those laws impair “the status and rights of Indians” (NIL/TU,O). The provision of medical and health services to members of the First Nation arises from their position as human beings, not from any specific ethnicity. While the duty of Canada to Aboriginal people is more general, the specific topic of medical and health services for Indigenous peoples is to their benefit as people living in Alberta. The Employer has not shown that the application of provincial labour relations laws to the SEMS work force impairs in any serious sense the “status or rights of Indians”.

Maliseet Grand Council et al v New Brunswick et al, 2019 NBQB 198

Motion granted. The two applications for judicial review are dismissed. The applicants have not established standing. Judicial reviews are not an appropriate forum for how the dispute regarding s 35 Aboriginal rights is framed.

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In a bid to enhance winter tourism in northern New Brunswick, the Province decided to improve the snowmobile trail system, by proceeding with the development of a snowmobile grooming hub in 2015 at Mount Carleton Park. The two judicial review applications arose in the context of this decision made by the Province. The initial judicial review focused on whether the Province’s decision to develop the grooming hub was in violation of the Province’s Parks Act and to first conduct an environmental impact assessment. The second judicial review application challenged the Province’s decision to exempt work on, and the replacement of, two bridges from a subsequently conducted environmental impact assessment. In addition, all of the judicial review applicants alleged a breach of Aboriginal and Treaty rights. These lands were, according to the judicial review applicants, never ceded by treaty.

Central to this dispute is the Mascarene Treaty of 1725/26, the so-called Peace and Friendship Treaty. The Mascarene Treaty represented a negotiated end to the Dummer’s War between the British and the Wabanaki Confederacy. The Eastern Wabanaki Confederacy are a confederation of First Nation and Native American people from (present day) Eastern Canada and the State of Maine, USA. The Mascarene Treaty of 1725/26 was signed by the numerous traditional chiefs of the Eastern Wabanaki Confederacy. This included traditional chiefs of the Wolastoqewiyik (Maliseet) peoples located in present day New Brunswick. The Wabanaki Confederacy is said to also be in the process of “being rebuilt”.

Having carefully considered the substantive submissions of the parties and having reviewed all of the numerous authorities in the context of both Aboriginal and Treaty rights litigation across Canada, the Court concluded that the Province’s motion to dismiss the two applications for judicial review will succeed. It was determined the applicants on judicial review have not established standing, which is fatal to both judicial reviews. As well, judicial reviews are not an appropriate forum to determine the existence of an Aboriginal section 35 rights-bearing collective.

Counsel for the judicial review applicants acknowledges these to be unique circumstances, however, it does not require this Court to adopt unique and novel legal constructs. “Aboriginal rights exist within the general legal system of Canada” (R v Van der Peet, [1996] 4 CNLR 177 [R v Van der Peet]). There is ample and longstanding authoritative support for the notion that both Aboriginal and Treaty rights are collective or communal in nature (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). While such rights may be exercised, in certain circumstances, by individual members of the community, these rights remain collective or communal (R v Powley, [2003] 4 CNLR 321). While the judicial review applicants initially based their claims against the Province over its failure to consult them, to a great degree, on “Aboriginal rights”, they now premise their relief on a breach of the Mascarene Treaty of 1725/26.

In the matter before this Court, the judicial review applicants believe a fair interpretation of the wording of the Mascarene Treaty allows for them to seek relief by way of judicial review for a breach of the Maliseets people’s rights. While they do not seek any declaratory relief specifically recognizing them as an authorized Aboriginal or Treaty rights holder for the Maliseet Nation, they do seek an order against the Province requiring it to fulfill a duty to consult prior to further work on the project continuing. Ostensibly, the judicial review applicants rely on the wording “any Indian” found in the Mascarene Treaty of 1725/26 so as to suggest they have “constitutional standing” to proceed. While creative, there is no merit to this argument. Even if this Court were satisfied with the specific interpretation of the wording found in the Mascarene Treaty of 1725/26, and in the manner now espoused by the judicial review applicants, there is an absence of evidence any of the judicial review applicants actually or actively pursued the very rights alleged to have been impacted and at the allegedly affected parts of Mount Carleton Park.

Even if the Court is in error with respect to standing, this dispute, as framed, is not appropriate for judicial review. A judicial review application should not be turned into a hearing de novo or an appeal. The Court’s role on judicial review is not to consider the matter anew or adjudicate conflicting expert opinions based on new evidence, but to review the decision on the basis of the material before the decision-maker. Aboriginal rights must be proven by tested evidence; they cannot be established as an incident of administrative law proceedings that centre on the adequacy of consultation and accommodation. To permit this would invite uncertainty and discourage final settlement of alleged rights through the proper processes. Aboriginal rights claims require that proper evidence be marshalled to meet specific legal tests in the context of a trial (R v Van der Peet; Delgamuukw v British Columbia, [1998] 1 CNLR 14; and Mitchell v MNR, [2001] 3 CNLR 122).

There are a few cases where standing was made an issue. In those few cases, it was held that the Aboriginal party must show it, in fact, has recognized authority to represent an Aboriginal collective, or portions thereof, for purposes of section 35 constitutional reconciliation or litigation. In this matter, the judicial review applicants argue that they need not do so as the Mascarene Treaty of 1725/26 expressly provides for their standing. Any Treaty interpretation, especially cases with such potentially broad application as in this case, must take into account all of the Aboriginal parties to the Treaty and the government(s). The judicial review applicants have chosen to proceed, not only without evidence of current representational authority for the collective Maliseet Nation, but they have done so in a forum to the exclusion of numerous recognized Maliseet entities, such as the First Nations communities in New Brunswick who quite likely may be affected by this proceeding and the relief sought.

Mi’kmaq of PEI v PEI (Her Majesty the Queen), 2019 PECA 26

Appeal dismissed. Prince Edward Island [“PEI”] satisfied the duty to consult with the Mi’kmaq in PEI, when it came to the transfer of the Mill River golf course property to private ownership.

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The Mi’kmaq in PEI [“Mi’kmaq”] have asserted Aboriginal title to all of the lands and waters of PEI. Their claim is based on exclusive occupancy at the time of first contact with Europeans and at the assertion of British sovereignty. The Province of PEI [“Province”] approved the conveyance of the Mill River golf course and resort to a private sector company. Since the Mill River property was Crown land, and the Mi’kmaq had previously given notice to the Province that it intends to bring a claim for Aboriginal title to all of PEI, the Government initiated consultation.

The Mi’kmaq brought an application for judicial review before the Supreme Court of Prince Edward Island. They sought declarations that the Province failed to adequately consult or accommodate and that the Orders-in-Council approving transfer for the properties are invalid and to be set aside. It was determined that the Province provided the Mi’kmaq with timely and appropriate information regarding its general intention to divest its four golf course properties, including requesting information and evidence in support of the Mi’kmaq claim to Aboriginal title and as to its concerns over potential adverse effect of the proposed conveyance.

The Mi’kmaq in PEI now appeal to this Court. They assert the reviewing judge made numerous errors. They challenge the finding that the Province gave adequate consultation. In this appeal they ask whether the government acted reasonably in carrying out consultation and if it was sufficient in the circumstances. This Court determined that the consultation was reasonable and also points out that the duty to consult was not triggered in the circumstances (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). As to Aboriginal title, there was very little information or evidence provided in support of the assertion that, based on exclusive occupancy at the time of British sovereignty, it had Aboriginal title to all of PEI or the property.

Consultation is a two-way street. The Mi’kmaq provided little by way of evidence or information to show how its asserted title claim would be eventually proven or as to its historic connection with the property. The information provided was mainly repeated assertions with general statements of entitlement to title that did not materially contribute to an evidence-based assessment. The Mi’kmaq claim as presented to the Province was tenuous. A potential for adverse effect needs to be raised. There needs to be a nexus shown between the potential activity on or regarding the land and the interest sought to be protected (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250). There was no information or evidence provided to show potential infringement or adverse impact on identified Mi’kmaq interest or association with the Mill River property as a result of conveyance of the property. The reviewing judge performed the proportionality test properly and without error.

Makivik Corporation v Canada (Minister of Environment and Climate Change), 2019 FC 1297

Application for judicial review dismissed. Granting declaratory relief would not be appropriate, as it would affect the parties’ intention to improve the wildlife management system for Nunavik Inuit as established by the Nunavik Inuit Land Claims Agreement.

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The Applicant, Makivik Corporation [“Makivik”], sought judicial review against the Minister of Environment and Climate Change Canada’s [“Minister”] decision [“Minister’s decision”] regarding the Total Allowable Take [“TAT”] of polar bears in the Southern Hudson Bay [“SHB”] region pursuant to the Nunavik Inuit Land Claims Agreement [“NILCA”] and the Eeyou Marine Region Land Claims Agreement Act [EMRLCA]. Makivik is the legal representative of Nunavik Inuit. It is a non-profit organization with the primary role to administer the lands of the Inuit, as well as to protect the rights, interests and financial compensation provided by NILCA and EMRCLA.

This application primarily concerns Article 5 of NILCA, which establishes a co-management regime that seeks to integrate Inuit knowledge and approaches to wildlife management with Western scientific knowledge. The parties have all made it clear that the conservation and state of polar bears is fundamentally important to the Inuit, other Indigenous people, and society at large. For the Inuit, especially, the polar bear, or “Nanuq” in Inuktitut, is a powerful and meaningful being. Polar bears are prominent in their culture, as they are highly valued and appreciated for their meat and fur. The Inuit have hunted polar bears as a source of sustenance for thousands of years, and many Inuit communities continue to rely on polar bears for both social and economic purposes.

Makivik submits that this case really is not about polar bears, nor is it about the duty to consult. It submits that this case is about the implementation of Inuit treaty rights under NILCA, a constitutionally protected modern treaty which fosters reconciliation. Makivik also claims that the Minister’s decision was neither correct nor reasonable. For relief, it does not seek to quash the Minister’s decision but wants several declarations concerning the Minister’s decision.

The Minister’s decision varied the Nunavik Marine Region Wildlife Board’s and the Eeyou Marine Region Wildlife Board’s [“the Boards”] final decision regarding the TAT and non-quota limitations for the harvesting of SHB polar bears within the Nunavik Marine Region, pursuant to s 5.5.12 of NILCA and s 15.3.7 of the EMRLCA. She rejected the Boards’ initial decision to establish a TAT of 28 polar bears, and for them to reconsider their decision without exceeding a maximum sustainable harvest rate of 4.5 percent. The Boards were also asked to implement a sex-selective harvest of two males for every female bear.

The Court came to the conclusion in this matter, that the Minister’s decision was correct and, with the exception of the issue of using sex-selective harvests and varying other non-quota limitations, the remainder of the Minister’s decision was reasonable. Since Makivik is not seeking to quash the Minister’s decision, then it stands. The temporary nature of the Minister’s decision was a major factor in the Court’s decision. The Court’s role is not to assess the adequacy of each party’s compliance at each stage of a modern treaty process (First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58). It would be premature for the Court to grant declaratory relief on issues regarding the interpretation of NILCA. By declining to grant relief in the present application, the Court is of the view that the parties would continue to govern together and work out their differences.

Sheck v Canada (Minister of Justice), 2019 BCCA 364

Application allowed. An order for the surrender of an Indigenous person to face charges of money laundering in the United States is remitted to the Minister of Justice for reconsideration.

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This is a judicial review of the decision of the Minister of Justice [“Minister”] that ordered Mr. Sheck’s surrender to the United States of America [“USA”] on charges of money laundering. The relief sought is to have the surrender order quashed, or in the alternative, have the matter remitted back to the Minister for reconsideration. The majority of this Court determined that the Minister failed to appreciate the disparity of the more severe sentence the accused would likely be given in the USA if convicted. As well, the Minister failed to consider the accused and his children’s Indigenous heritage and the context of the historical mistreatment by Canada of Indigenous families which forcibly separated children from their parents and culture.

The standard of review with respect to the Minister’s surrender decision is not in dispute. The Minister’s decision is entitled to deference, and interference is warranted only in exceptional cases of “real substance”. This Court considered whether the Minister’s decision fell within a range of reasonable outcomes, and if the correct legal test was applied (Lake v Canada (Minister of Justice), 2008 SCC 23 [“Lake”]; s 57(7) of The Extradition Act). This standard of review recognizes that the decision to surrender the accused is largely political and involved the Minister’s superior expertise with respect to Canada’s international obligations and interests (India v Badesha, 2017 SCC 44). The Minister must take into account Canada’s international obligations, but also consider the rights of the person sought.

Pursuant to s 7 of the Charter, a person is not to be deprived of the right to life, liberty and security of the person except in accordance with the principles of fundamental justice. In the extradition context, the Minister is not to surrender a person if surrender would “shock the conscience” (Lake) or not to surrender the person if the consequences of surrender would be “contrary to the principles of fundamental justice” (MM v United States of America, 2015 SCC 62 [“MM”]). This necessarily includes, when relevant, the best interests of that person’s children who may be affected by the extradition (MM).

The accused faces a potential sentence of 27 years imprisonment if convicted in the USA. If he enters a guilty plea in a timely manner, that might be reduced to a range of 19 to 27 years imprisonment. In contrast, the Minister considered only the maximum sentence an offender would face in Canada for a corresponding offence of ten years under s 462.31 of the Criminal Code. Mr. Sheck is Indigenous, employed, has a long-term spousal relationship, and supports and is actively involved in parenting four children. It is unlikely that Mr. Sheck’s circumstances would result in the maximum sentence in Canada of ten years’ imprisonment. The authorities suggest that a sentence for money laundering alone in Canada could range from a conditional sentence of less than two years, to a custodial sentence of 18 months to five years (R v Rathor, 2011 BCPC 338; R v Garnett, 2017 NSCA 33; R v Lawrence, 2018 ONCA 676; R v Barna, 2018 ONCA 1034; R v Bui, 2006 BCCA 245; R v Abdel, 2019 ONSC 690; R v Williams, 2019 NBPC 1; R v Rosenfeld, 2009 ONCA 307). The Minister cannot have truly appreciated the gross disparity between the two potential sentences the accused would face.

The Minister also failed to consider the impact of separating the accused from his children in the context of their common Indigenous heritage. Historically, the government-approved residential school program separated Indigenous children from their parents and communities, depriving them of their Indigenous culture and often subjected them to abuse. In numerous contexts, not just sentencing or extradition, the courts are called upon to consider the legacy of harm to the Indigenous peoples in Canada when determining a legal right or remedy (United Nations Declaration on the Rights of Indigenous Peoples; United Nations Convention on the Rights of the Child; Truth and Reconciliation Commission of Canada, 2015 [“TRC Report”]). Specifically, in the “Calls to Action”, the TRC Report identified five action items relating to Indigenous child welfare, including keeping Indigenous families together where safe to do so.

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.

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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.

Good v Canada, 2018 FC 1199

Application dismissed. The applicant did not discharge her burden to satisfactorily prove that the First Nations Election Act was contravened during a First Nation’s Chief and Band Council election.

Wiyasiwewin Mikhiwahp Native Law Centre
Case Watch

Michelle Good has appealed all of the last three elections of the Red Pheasant First Nation [RPFN], but this is the first appeal she has applied for under the First Nations Elections Act [FNEA]. She is a practicing lawyer in British Columbia, and is a band member of the RPFN. On November 5, 2015, the RPFN Band Council signed a Band Council Resolution [BCR] in favour of opting into the FNEA, a statutory regime that legislates a process for First Nations to elect their Band Council members. After receiving the BCR, the Minister added the RPFN to the FNEA Schedule. An election followed on March 18, 2016. After the election results became known, Good filed an application under s 30 of the FNEA in the Federal Court to review the election. She went on to allege that the election and the election process contravened numerous sections of the FNEA. Good has applied for nine different declarations and an order that a new election be called as her only relief.

An election to be set aside requires meeting a statutory test under ss 31 and 35(1) of the FNEA. The two-part test requires the Applicant to establish that a provision was contravened and that the contravention likely affected the election result. Contraventions unlikely to have affected the result of the election will not trigger overturning the election. The requisite standard of proof for establishing this test is the balance of probabilities. In interpreting the FNEA, the Saskatchewan Court of Appeal noted that the presumption of regularity is reflected in the onus and evidentiary burden imposed on an applicant to demonstrate that a contravention has occurred that likely affected the result of an election. Once an applicant establishes a prima facie case, the burden switches to the respondent to refute it. The type of contravention is important and relevant as not every contravention will justify triggering the overturning of the election. This Court retains discretion on overturning elections, even in situations involving fraud or other forms of corruptions.

Evidence in a judicial review proceeding is dealt with by the Court through examination of the affidavits before it. In this matter, the record before the Court was complicated by numerous affidavits which included redacted affidavits, supplementary affidavits, and late filed affidavits. Many of the affidavits contain hearsay evidence, argument, and irrelevant or inflammatory comments. The Court found this unacceptable, inappropriate, and not a good use of judicial resources. Not only is such a record unfair to the Judge, but it is also unfair to the Respondents as the Respondents cannot know exactly what the relevant allegation is, or the specific evidence that supports the allegation.

A main allegation in many of the affidavits revolved around cash being given to band members by the Chief and Council at the time of the election and with respect to the appeal. Money given to assist band members in need has been the tradition for many years, and evidence was led by both parties to the effect that the RPFN is not a wealthy First Nation. Many of its members are in need of assistance for food, gas, and other necessities. People text or solicit the Chief and Council for cash and if the requests are deemed as legitimate, typically money will be given from their own pockets or accounts, and on occasion from a band account. This practice does not stop during election campaigning. The Court had to determine in each situation whether the contributions by the individuals were philanthropic, or for the purposes of vote purchasing. The Respondents provided a methodical refutation to these allegations.

There were also allegations of unlawful control of enough blank ballots to control the outcome of the election. The allegations had reasonable explanations given by the Respondents and the Court preferred their evidence. It is not a violation of the FNEA or any common-law principles to be asked to join a slate of candidates. This political maneuvering would appear to be what occurs in many elections, and is a recognized part of the political process. It was also alleged that fraud occurred from the overbroad use of Form 5D (Form to Request a Mail-in Ballot) and Form 8C (Declaration of Person Delivering a Mail-in Ballot Package) which allowed illegally obtained ballot forms to be placed in the ballot box, therefore controlling the outcome of the election. Walking in ballots and completing the 8C Form in itself is not evidence of fraud, especially given that most of the band members live off reserve. Good also alleged that people were given the paper with the slate of candidates that they were to vote for, but there was no evidence of this that was acceptable to the Court. There is no prohibition against entering a polling station with a slip of paper in and of itself.

The substantive allegation surrounding vote buying was supported by excerpted Facebook posts. This is not reliable evidence, as it is inherently suspect. An individual can post on Facebook that they have sold their vote, and another individual can “corroborate” a potentially false narrative without any underlying substrata of truth to the event. While it has been held that Facebook posts can result in legal action, such as in the employment context, it is highly distinguishable from individuals attempting to “set-up” others on social media platforms to establish the corrupt nature of elections on the RPFN. Good was not present at the actual election and her only knowledge was garnished from following social media. There was also alleged vote-buying at the Ramada Inn in the hospitality room put on by the Chief. Having a “come and go” hospitality room is not out of the ordinary for candidates in any and all political forums, and it is not found on these facts that the hospitality room or the events that occurred within comprised an inducement to buy a vote.

The remaining evidence does not support a contravention of the FNEA, and in the alternative, it does not affect the results of the election. There were several other affidavits that were not specifically addressed as that evidence was related to issues not relevant or not before the Court. The Court commented that this election was a complex web of intrigue and that the band is clearly divided in its loyalty and this toxic environment can never be in the best interests of the band.

Beaucage v Métis Nation of Ontario, 2019 ONSC 633

Motion granted. The nature of the Métis Nation of Ontario’s responsibilities and relationship with the government, does not transform the private voluntary organization’s membership decisions into public law decisions that are subject to judicial review.

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Métis Nation of Ontario (“MNO”) has moved to quash this application for judicial review on the ground that this Court has no jurisdiction. The underlying application for judicial review sought an order to set aside the decision of a genealogist, that denied the applicant’s appeal from earlier decisions that refused his application for membership in the MNO. The applicant’s mother and sister became registered citizens of the MNO in 2002. In 2003, the Supreme Court of Canada (“SCC”) released its decision in R v Powley, [2003] 4 CNLR 321 (“Powley”). The SCC, although emphasizing that there is no universal definition of “Métis”, provided a framework for determining who is Métis for the purposes of s 35 of the Constitution Act, 1982. Thereafter, a new definition of “Métis” was effectively adopted by the MNO. This application for judicial review does not relate to s 35 rights. When the new definition was implemented by the MNO, however, current citizens such as the applicant’s mother and sister were grandfathered and therefore did not need to meet the new requirements. New applicants, including family members as in this situation, however, must now meet the new requirements.

The test on a motion to quash an application for judicial review asks whether it is plain and obvious or beyond doubt that the judicial review application would fail (Adams v Canada (AG), 2011 ONSC 325 (“Adams”); Certified General Accountants Assn of Canada v Canadian Public Accountability Board (2008), 233 OAC 129 (Div Ct)). In this case, it is beyond the jurisdiction of this Court. As found in prior decisions, the Divisional Court has no jurisdiction under s 2 of the Judicial Review Procedure Act to judicially review any decision outside the public law sphere (Trost v Conservative Party of Canada, 2018 ONSC 2733; Adams; Deeb v Investment Industry Regulatory Organization of Canada, 2012 ONSC 1014). The purpose of judicial review is to ensure the legality of state decision making (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 (“Wall”). In Wall, the SCC underscored the importance of distinguishing between “public” in the generic sense and “public” in the public law sense. Broad public impact is insufficient to bring a decision within the public law sphere.

All corporations are creatures of statute. The corporation must be discharging public duties or exercising powers of a public nature before it is subject to judicial review (Knox v Conservative Party of Canada, 2007 ABCA 295). The MNO Act does not confer public duties on the MNO or delegate governmental responsibilities to it. The MNO Act and its history do not transform the decision at issue into a public law decision that is subject to judicial review. The MNO participates specifically on behalf of its citizens, not on the basis that it represents all Métis (“Powley”). Provincial and federal governments may accept an MNO card based on the MNO registry of citizens, but an MNO card is not an exclusive requirement. The MNO calls its members citizens but nothing turns on the use of that nomenclature.