Monthly Archives: August 2019

Schemenauer v Little Black Bear First Nation, 2018 SKQB 203

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Reply

Summary judgement granted in part. The defendant is liable to the plaintiff for unpaid services, however, a trial is required to determine the precise amounts owed.

Native Law Centre Case Watch

This application is for a summary judgment against the defendant for outstanding invoices issued by the plaintiff for its services rendered between 2011 and 2014. Summary judgment is granted in part that the defendant, a First Nations band, is liable for the unpaid balance of service invoices to the plaintiff, as well as interest on that amount at the rate of five percent per annum. There remains, however, a genuine issue requiring a trial with respect to the precise amount of the unpaid balance.

The federal government through the Department of Crown-Indigenous Relations and Northern Affairs (once known as Indian Affairs and Northern Development) [“Department”], and First Nations band councils, enter into funding agreements. The bands receive funding from Parliament for various earmarked activities through these funding agreements. If a band defaults under a funding agreement, the Minister may take various steps to address the default. This includes, as in this matter, the Department appointing a Third Party Manager who receives federal funding in trust, and manages the funds on behalf of both the band and the Department. This is to ensure that programs and services for band members are not interrupted, and to protect the proper use of public funds. In this matter, the plaintiff worked as a Third Party Manager and was responsible to administer funds in trust on behalf of the Department for the benefit of the defendant’s members.

Already under Third Party Management in 2010, the defendant contacted the plaintiff. The plaintiff was asked to assist the defendant with certain matters relating to account records from previous years, as well as assistance in other various capacities that included ongoing support for the defendant’s conversion out of Third Party Management. The agreement that was entered into between the parties, in which a physical copy was not presented in evidence, stated that the plaintiff’s fees would be billed on the basis of time spent. It stipulated that all outstanding fees were to be paid within 30 calendar days from the date of a received invoice and unpaid sums would be subject to an interest rate of 1.5 percent per month until paid in full.

When the defendant was removed from Third Party Management in 2011, the plaintiff remained working for the defendant to provide co-management services, as is required by the Department as a condition for removal from Third Party Management status. Under co-management, funds were tight. While it was expected that the plaintiff would eventually be paid in full, there was a period when only incremental payments could be made. There is some confusion as to the amount outstanding under the unpaid invoices as there is no identification of the precise amounts owed for the services. The services rendered are described merely as “Consulting”, along with a description of the time spent, but with no other details.

Although the Court is satisfied that a trial is not necessary to find that the defendant is liable for payment to the plaintiff for services rendered, the amount of the unpaid balance under those invoices requires determination at trial. The required evidence to quantify the unpaid balance was not clearly presented. The amount cannot be determined based on the evidence and there is no explanation provided for this, therefore the Court cannot make the necessary finding of fact (Hryniak v Mauldin, 2014 SCC 7).

The plaintiff seeks interest on the amount outstanding, whatever determination that may be, at a rate of 1.5 percent per month. The agreement, however, did not describe this interest rate with an annual equivalent. Given that no annual equivalent for this rate was stipulated in the agreement or the issued invoices, the plaintiff’s claim is contrary to s 4 of the Interest Act and cannot be enforced. S 4 applies in circumstances where the interest is made payable at a monthly rate or at any rate for any other period of less than a year. The interest applicable must be limited to five percent per annum (Bank of Nova Scotia v Dunphy Leasing Enterprises Ltd, 1991 ABCA 351).

R v Desautel, 2019 BCCA 151

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Reply

Appeal dismissed. The Respondent is not prevented from claiming an Aboriginal right to hunt in British Columbia pursuant to s 35 even though he resides in the United States of America.

Native Law Centre Case Watch

Richard Desautel was charged under the Wildlife Act after hunting an elk without a license in the Arrow Lakes area of British Columbia. He admitted the actus reus but asserted that he has a s 35 Aboriginal right to hunt in the territory despite being a citizen of the United States of America [“USA”]. Mr. Desautel has never resided in British Columbia but is a member of the Lakes Tribe of the Colville Confederated Tribes in Washington State. His Sinixt ancestors had occupied territory above and below the 49th parallel, including the area in which he was hunting. At the time of contact with Europeans, they hunted, fished, and gathered throughout their territory.

Does the meaning of the phrase “the Aboriginal peoples of Canada” in s 35(1) of the Constitution Act, 1982 include only Aboriginal peoples who are resident or citizens of Canada, or also Aboriginal peoples whose ancestors occupied territory that became Canada? S 35 is directed towards the reconciliation of pre-existing Indigenous societies with the assertion of Crown sovereignty. A practice, custom, or tradition that is central and significant to the distinctive culture of an Indigenous society pre-contact that has not been voluntarily surrendered, abandoned, or extinguished, may be exercised by Indigenous members of modern collectives if they can establish that: 1) the modern collective is descended from the historic collective that exercised the practice, custom or tradition in that territory; and 2) there has been continuity between the practice of the modern collective with the practice of the historic collective pre-contact (R v Van der Peet, [1996] 4 CNLR 177 [“Van der Peet”]).

S 35(1) provides the constitutional framework to acknowledge the fact that Aboriginals lived on the land in distinctive societies, with their own practices, traditions and culture and to reconcile this with the sovereignty of the Crown. The burden of proof was on Mr. Desautel to establish the Aboriginal right claimed and a prima facie infringement of that right (R v Sparrow, [1990] 3 CNLR 160 [“Sparrow”]). The meaning and scope of s 35(1) is derived from the general principles of constitutional interpretation relating to [A]boriginal rights, and the purposes behind the constitutional provision itself. Sparrow also requires that s 35(1) be construed in a purposive way and that the words in s 35(1) be afforded a generous, liberal interpretation. Further, in Van der Peet it was instructed that the courts take into account the perspective of the Aboriginal peoples claiming the right and any doubt or ambiguity as to what falls within the scope of s 35 must be resolved in their favour. Applying the Van der Peet test, the concept of continuity must have a necessary connection between the historic collective and the modern-day community. Therefore, claimants who are resident or citizens of the USA can be “Aboriginal peoples of Canada” where they can establish the requirements set out in Van der Peet.

Courts adjudicating Aboriginal rights claims must be sensitive to the Aboriginal perspective, but also aware that Aboriginal rights exist within the general legal system of Canada. The time period integral to the Aboriginal community claiming the right is the period prior to contact. Where an Aboriginal community can demonstrate that a particular practice, custom or tradition has continuity with those of pre-contact times, that community will have demonstrated that the practice, custom or tradition is an Aboriginal right for the purposes of s 35(1). The concept of continuity is the means by which a “frozen rights” approach to s 35(1) will be avoided. Continuity does not require evidence of an unbroken chain of continuity. Aboriginal rights are constitutional rights, but that does not negate the central fact that the interests that the rights are intended to protect, relate to the specific history of the group claiming the right. Aboriginal rights are not general and universal as their scope and content must be determined on a case-by-case basis. The existence of the right will be specific to each Aboriginal community.

Mr. Desautel’s right to hunt in the traditional territory of his ancestors in that geographical area were never voluntarily surrendered, abandoned or extinguished. This Court will not modify the Van der Peet test to add a geographic requirement that would prevent members of Indigenous communities, who may have been displaced, from the opportunity of establishing their Aboriginal rights in areas their ancestors had occupied pre-contact. This matter is distinguishable from R v Powley, [2003] 4 CNLR 321 [“Powley”] where in order to accommodate the unique history of the Métis communities that evolved post-contact, the time period analysis in Van der Peet was focused on pre-European control. Powley requires an Aboriginal rights claimant to be a member of a contemporary community in the geographic area where the right was exercised. It is also distinguished from R v Bernard, [2018] 1 CNLR 79, where a Mi’kmaq member of the Sipekne’katik First Nation in New Brunswick was charged with contravening the Fish and Wildlife Act, for hunting deer. The trial judge found Mr. Bernard had failed to establish that he was a member of a modern collective descended from the original rights-bearing Mi’kmaq community that hunted at the mouth of the St. John River. Unlike Mr. Bernard, Mr. Desautel has established a connection to the historic community that hunted in the traditional territory where the claimed Aboriginal right was exercised.

It has been determined that there is continuity of the practice of hunting in the area where Mr. Desautel shot the elk. Members of the Lakes Tribe are the modern-day successor collective of the Sinixt peoples and Mr. Desautel was exercising his lawful Aboriginal right to hunt for ceremonial purposes in the traditional territory of his Sinixt ancestors, pursuant to s 35(1). The issues raised by the Crown regarding the Lakes Tribe’s legal status in the USA, or the extent of any potential duty to consult and accommodate, raises ancillary questions that, in the Court’s view, are not material to the central issue.

R v Kirby Offshore Marine Operating LLC, 2019 BCPC 185

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Reply

The Court accepted a joint submission with the total fines of $2,905,000 imposed on the defendant after a sentencing hearing and Talking Circle was conducted in the traditions of the Heiltsuk Nation.

Native Law Centre Case Watch Blog

The defendant, Kirby Offshore Marine Operating LLC, operates one of the largest inland and offshore tank barge fleets in the United States. One of its tugs en route from Alaska to Vancouver, ran aground and sank at a reef in the traditional territory of the Heiltsuk Nation due to the operator falling asleep. Contamination of the environment occurred as diesel fuel and lubricants were released from ruptured tanks on the tug into the ocean. A joint submission was made which was accepted by the Court with total fines of $2,905,000 dollars imposed. There are 3 offences which the defendant has pled guilty: 1) unlawful deposit of diesel fuel contrary to ss 36(3) and ss 40(2) of the Fisheries Act; 2) unlawful deposit of diesel fuel contrary to ss 5.1(1) and s 13(1)(a) of the Migratory Birds Convention Act, 1994; and 3) unlawful pilotage by proceeding through an area without a licensed pilot or the holder of a pilotage certificate contrary to s 47 of the Pilotage Act.

A sentencing hearing was conducted in the traditions of the Heiltsuk Nation with a Talking Circle. The Hereditary Chiefs, Elders, elected Chief, along with other members of the community sat with counsel and the Court in a circle, which was a solemn and tradition filled forum. The Hereditary Chiefs in full ceremonial garments, placed their coppers on top of cedar boughs in the middle of the circle and spoke about the damage to their resources, the infliction of insult and trauma upon their ancestral lands and culture, as well as their economic losses. The history of the Heiltsuk stretches 14,000 years as stewards of their lands, oceans and resources. They have a special relationship to their home as it is closely held to their environment and their heritage. There is a sense of despair with the dissipation of the spiritual energy as the beaches and resources have been soiled with diesel and oil. There is anger over the damage to their oceans and is a breach of their traditional laws of respect and good care for the lands and oceans.

There are five sentencing principles for environment offences: 1) culpability; 2) prior record and past involvement with authorities; 3) acceptance of responsibility and remorse; 4) damage and harm; and 5) deterrence (R v Terroco Industries Limited, 2005 ABCA 141 [“R v Terroco”]; R v Brown, 2010 BCCA 225).

This is a strict liability offence and the assessment for the dominant factor of culpability must be to determine the degree of blameworthiness which is on a sliding scale; is the conduct an intentional act or a near miss of the due diligence standard? In this case, the offence was not intentional as the operator had fallen asleep, but it was not a near miss as the offence could have been avoided. Within the range of culpable conduct, this would be towards the higher end of the degree of blameworthiness. The defendant has no prior record and past involvement with authorities. The defendant’s acceptance of responsibility is reflected by the guilty pleas which are significant, as it acknowledges the wrongful conduct, which saves considerable court time. The defendant is remorseful and the post offence conduct also establishes acceptance of the harm done.

Assessing the degree of harm factors in actual harm in the evaluation of the sentence. Determining actual harm may be difficult given the gradual and cumulative effects of pollution. Identifiable injury is an exacerbating factor, while the lack of an actual injury is not a mitigating factor (R v Terroco). The greater the potential for harm, the greater the warranted penalty. The potential for harm is informed by the probability of the risk, the nature of the product, the likely magnitude of damage if the risk materializes and the sensitivity of the site including its proximity to population and fragile environment (R v Terroco). In this matter, the absence of proximity to population is not a factor that reduces the degree of harm. While the site of the spill was relatively remote, it was close to the community of Bella Bella and is an area that is actively used by the Heiltsuk people to access natural resources. The nature of diesel is highly deleterious as even small amounts can kill fish. The spread of water borne contaminants over vast areas of the ocean in such a sensitive environment is also an aggravating element.

Specific and general deterrence are both dominant features in sentencing pollution cases. Although the defendant has been deterred, it is the message to others that must be clear and unambiguous. The objective of deterrence is to ensure that not only the offender but others are acutely aware that they owe a high duty to be vigilant in protecting this sensitive environment.

The Heiltsuk Nation made clear in the Talking Circle that no amount of monetary fine could justify the damage that had occurred to their traditional lands. It was asked that the defendant be banned from their traditional waters. Within the framework of the operative legislation the Court does not have the jurisdiction to make such an order. The fines imposed are directed to be paid to the Environmental Damage Fund that is to be administered for the benefit of the Heiltsuk First Nations for the purposes of restoration of the habitat affected by the environmental damage.

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

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

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

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

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

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

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

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

Catholic Children’s Aid Society of Toronto v ST and BF, 2019 ONCJ 207

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The inability to name a child’s bands and First Nations, Inuit or Métis communities does not negate the initial determination that a child is a First Nations, Inuk or Métis child.

Wiyasiwewin Mikiwahp Native Law Centre

The Catholic Children’s Aid Society of Toronto [“Society”] has brought a protection application for SF, an 8-month-old child. The child is in need of protection pursuant to the Child, Youth and Family Services Act, 2017 [“the Act”]. At first the child was described as not a First Nations, Inuk or Métis child but the Court was not satisfied that it had sufficient evidence and adjourned the case for the Society to further explore the issue. After the matter returned to court, it was held that the child should be identified as a First Nations, Inuk or Métis child. The court is not precluded from finding that a child is a First Nations, Inuk or Métis child just because the child does not have any bands or First Nations, Inuit or Métis communities.

The child was brought to a place of safety due to concerns surrounding the parent’s mental health and capacity. The court endorsed that the Society must immediately investigate whether the child is a First Nations, Inuk or Métis child, based on information received from the mother. She stated that her mother had told her that she is of Métis background, but also that her mother had lied to her about many things, so she does not know if she is being truthful or not. The Society had not been able to connect with the grandmother, despite multiple efforts. Neither Indigenous Services Canada or any of the Métis organizations that were contacted had been able to confirm the family’s identity. The society did contact the great-grandmother, who confirmed that the family is Métis and that her mother was Indigenous, but that was all the information they had.

Once the court determines that a child is a First Nations, Inuk or Métis child, the second part of the statutory finding that must be made is to identify the child’s Indigenous bands or communities. There may be more than one band or community (Children’s Aid Society of Algoma v CA, 2018 ONCJ 592 [“CAS of Algoma v CA”]). The Act sets out that its paramount purpose is to promote the best interests, protection and well-being of children. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to such eligible individuals should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

The court must apply the definition of First Nations, Inuit or Métis child set out in the Ontario Regulation 155/18 for the purpose of identification under the Act and the criteria is exhaustive. The court should take a broad view in interpreting if the child has a connection to an Indigenous band or community under the regulation. This seems to be in accordance with the spirit of the Act which tends to be more inclusive when it deals with Indigenous peoples. Subparagraph 1(c) of the Ontario Regulation 155/18 uses the words “there is information that demonstrates that”, which sounds like a clear invitation to the person making the s 90(2)(b) determination of identity to rely on information that is not necessarily “evidence”. It says nothing about the standard of such information (CAS of Algoma v CA).

However, to just say that anyone can put forth a claim and have it accepted without question would be an open invitation to abuse the administration of justice. It could cause considerable harm to children by delaying decisions affecting them and would be disrespectful to the First Nations, Inuit and Métis persons the Act is intended to include. While the inability of a person to name specific Indigenous bands or communities might be a factor in assessing the identification issue, it should not be determinative. The reality is that due to the Sixties Scoop, many Indigenous persons now have fractured memories of their Indigenous connections and it is likely that many will not be able to name specific bands or communities. Evidence or information will often come from memories of discussions with relatives and will often lack detail. Many will not be registered with any First Nations band or belong to any First Nations, Inuit or Métis organization. In many cases, neither will their parents. This does not necessarily preclude the court from making a finding that the child is a First Nations, Inuk or Métis child. The new legislative provisions are an opportunity for these children to reignite lost connections with their culture and heritage.

The court should take a broad view in interpreting if a child is a First Nations, Inuk or Métis child (CAS of Algoma v CA). This is an approach that is consistent with the statements made in both the preamble and purposes section of the Act. It is this court’s view that only a low threshold of reliable and credible evidence or information should be sufficient to make a finding that a child is a First Nations, Inuk or Métis child. The Act and regulations set out considerable rights and additional considerations for these children that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family. It would be contrary to the purposes of the Act to disenfranchise these children. If a child’s Indigenous bands or communities cannot be identified, it is the rights that are set out in the Act that are not activated. However, many other additional considerations still apply to First Nations, Inuit and Métis children in the Act and its regulations that should not be extinguished just because the child’s Indigenous bands or communities cannot be named. The same best interests test applies on an adoption application.

The court received information from the great-grandmother that she identifies as a First Nations, Inuk or Métis person. However, a great-grandmother is not a relative as defined in the Act. The legislature put a limit on how far back the investigation about a child’s family’s First Nations, Inuit or Métis connections would go to two generations before the child. However, the grandmother is a relative, and despite her lack of cooperation with the Society, she provided specific information to the mother that she identified as Métis. The problem the court initially faced was that the mother claimed that the grandmother was not truthful. This is where the subsequent information provided by the great-grandmother became important. Essentially, the great-grandmother corroborated the information provided by the grandmother to the mother, by stating to the Society that the family is Métis and that her mother was Indigenous. The court finds that this evidence and information is sufficient to meet the low threshold required to find that the child is a First Nations, Inuk or Métis child.

Good v Canada, 2018 FC 1199

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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.

Toney v Toney Estate, 2018 NSSC 179

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

Wiyasiwewin Mikhiwahp Native Law Centre
Case Watch

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

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

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

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