Monthly Archives: March 2020

Kennedy v Carry the Kettle First Nation, 2020 SKCA 32

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Appeal allowed of a judicial review that quashed a customary decision to remove opposing members on a First Nation’s election code tribunal. The Federal Court of Canada had exclusive original jurisdiction pursuant to s 18 of the Federal Courts Act to hear and determine that application. 

Indigenous Law Centre – CaseWatch BlogThe Appellants are members of the Cega-Kin Nakoda Oyate Tribunal [“Tribunal”], an election tribunal established by the Cega-Kin Nakoda Oyate Custom Election Act [“Code”]. They, like the Respondents, [“opposing members”], were appointed as Tribunal members by the Chief and Council of the respondent, Carry the Kettle First Nation [“CKFN”]. The Code provides that the Tribunal shall have five members.

In 2019, the Appellants purported to make orders of the Tribunal [“Orders”] at certain meetings. The only attendees at those meetings were the Appellants, as the opposing members refused to attend, and never approved the Orders. Subsequently a resolution was passed at a joint meeting of the Appellants and a group of Elders [“Elders’ resolution”]. The Elders’ resolution established rules for the removal of Tribunal members and removed the opposing members from the Tribunal. The CKFN applied to the Court of Queen’s Bench for judicial review, challenging the validity of the Orders and the Elders’ resolution [“Application”]. The Chambers judge who heard that judicial review quashed the Orders and the Elder’s resolution. In this matter the Appellants appeal that decision to this Court. It has been determined that this appeal must be allowed, as the Federal Court of Canada had exclusive jurisdiction to hear the judicial review application.

After s 74 of the Indian Act order was rescinded in 2018 for the CKFN, their Code came into effect. The definition of “council of the band” in s 2(1) of the Indian Act provides that when a band is not subject to a s 74 order, and is not named or formerly named in the schedule to the First Nations Elections Act, “council of the band” means “the council chosen according to the custom of the band, or, if there is no council, the chief of the band chosen according to the custom of the band”.

None of the parties takes issue with the proposition that the Code constitutes “custom of the band” within the meaning of s 2, although they differ as to what constitutes custom. It is clear that a recently adopted election code may be custom for this purpose, despite that the authority to enact such a custom election code is not granted by the Indian Act or other federal legislation (Pastion v Dene Tha’ First Nation, [2019] 1 CNLR 343 [“Pastion”]). The custom of the band is not limited, and indeed may bear little resemblance, to historic customs, practices or traditions that existed prior to the Crown’s assertion of sovereignty. What the Indian Act describes as ‘custom’ is often the written product of public deliberation within a First Nation and it may rely on the mechanisms of Western democracy, or provide for a mechanism that blends Western democracy and Indigenous tradition (Pastion). The Code is such a document regardless of whether, as Pastion suggests, it might be more apt to describe it as “Indigenous legislation” or “Indigenous law”. The Code is effective for purposes of the Indian Act regardless of whether that is so.

The Code does not contain provisions which deal expressly with the issues of removal or replacement of Tribunal members. The Appellants resolved to hold a joint meeting with the Nation Elders to deal with those issues. That meeting [“Elders’ Meeting”], attended by the Appellants, and 26 Elders, unanimously supported the Elders’ resolution, which established criteria and a process for removing and replacing Tribunal members. This Elders’ resolution also provided that the three opposing members were “removed as Tribunal members effective immediately”.

In this matter, the Appellants submitted that both the Tribunal and the Elders’ Meeting were federal boards, commissions or tribunals [“Federal entity”] within the meaning of s 18 of the Federal Courts Act [“FCA”]. The Chambers judge did not deal with the question of whether the Tribunal and the Elders’ Meeting were Federal entities. On an appeal from a judicial review, the task of an appeal court is normally to determine whether the Chambers judge selected the correct standard of review and correctly applied that standard (Kawula v Institute of Chartered Accountants of Saskatchewan, 2017 SKCA 70; Dr Q v College of Physicians & Surgeons of British Columbia, 2003 SCC 19). It is concluded that this appeal should be disposed of on the basis of the jurisdictional question, which raises two issues: 1) did the learned Chambers judge err by deciding that the Court of Queen’s Bench had jurisdiction to hear the Application pursuant to s 22 of the Code; and 2) did the Chambers judge err by failing to decide that the Federal Court had exclusive original jurisdiction to hear the Application pursuant to s 18 of the FCA?

In this case, the conditions necessary to engage the right to apply pursuant to s 22 have not been met because the Application was filed by the CKFN. That, in itself, is enough to determine the issue. The Tribunal has not yet made a final decision as to the results of the election, therefore the CKFN could not bring the Application in the Court of Queen’s Bench pursuant to s 22 of the Code, and the Chambers judge did not have jurisdiction to hear the Application pursuant to that section.

The same reasoning applies to the Elders’ Meeting. The question is not whether those recognized as Elders by the Nation are a Federal entity whenever they play a role in the CKFN’s affairs. The question is whether the Elders’ Meeting had the authority to pass the Elders’ resolution. If the Elders’ Meeting had the authority it exercised or purported to exercise, it was because that authority was the custom of the band, and like the authority of the Tribunal, was made effective in this context. The Tribunal and the Elders’ Meeting were both Federal entities within the meaning of s 18 of the FCA. The Chambers judge erred by failing to decide that the Federal Court had exclusive original jurisdiction to hear the Application pursuant to s 18 of the FCA.

Crate et al v Government of Manitoba, 2020 MBQB 9

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Manitoba satisfied its duty to consult and accommodate a First Nation prior to granting a licence to a company to expand an existing peat harvesting and procession operation that would affect traditional activities of hunting, fishing and harvesting plants in the area.

Indigenous Law Centre
Indigenous CaseWatch Blog

Sunterra Horticulture Inc [“Sunterra”] submitted a notice of alteration in relation to its existing license to allow expansion of its existing peat harvesting and processing operation on the Washow Bay Peninsula which is land within the traditional territory of the Fisher River Cree Nation [“FRCN”]. The Government of Manitoba invited FRCN to participate in consultations but ultimately granted the revised license to Sunterra.

FRCN appealed the issuance of the license but the appeal was dismissed. By way of an application for declaratory relief, the applicant’s sought a review of the Minister’s decision focused on two substantive issues: 1) the Sunterra license should not have been granted because Manitoba failed to satisfy its duty to consult with FRCN before issuance; and 2) the Minister’s decision to dismiss FRCN’s appeal was based on a failure of Manitoba to hold a public hearing and comply with section 11(10) of The Environment Act.

Whether Manitoba correctly assessed the extent of their duty to consult was reviewed on a standard of correctness. It was not disputed that peat harvesting could interfere with or disrupt the traditional activities of hunting, fishing and harvesting plants in the area. Manitoba correctly identified the level of consultation required as being at the medium to high level. It was significant that Manitoba had an established written policy regarding the level of consultation. Prior to consultation, Manitoba and FRCN agreed to and signed a Protocol respecting Crown-Aboriginal Consultations and a Consultation Funding Agreement with respect to the Sunterra project. These were examples consistent with those suggested in Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72.

Whether Manitoba adequately discharged its duty to consult was reviewed on a standard of reasonableness. Based on the consultation record, Manitoba received and responded to FRCN’s concerns in relation to the exercise of its Aboriginal and treaty rights. Manitoba provided information to FCRN when it was requested. There was ongoing correspondence and dialogue. The conditions as set out by the record constituted adequate accommodations of FRCN’s concerns. While the FRCN may have received a response they did not want, it could not be said that Manitoba did not consider FCRN’s position and responded to it. Therefore, Manitoba satisfied its duty to consult and accommodate FRCN prior to granting the Sunterra licence.

As for the public hearing, it was not unreasonable for the Minister to conclude that the concerns raised by FRCN regarding the Sunterra project were addressed by the conditions imposed on the licence. There was no evidence that FCRN was prejudiced by the Director’s failure to comply with the twenty-one-day deadline. There was no evidence of bad faith, or a failure to recognize responsibilities of a disregard for public concerns, or of a dismissal of legitimate objections to the project. Although the failure to comply with the statutory timeline cannot be condoned, it was not basis for the court to invalidate the issuance of the Sunterra licence or the Minister’s conclusion that a public hearing was unnecessary.

R v Komak, 2020 NUCJ 12

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Weighing the sentencing principles of deterrence and denunciation with Gladue and other mitigating factors, the Indigenous accused is sentenced to 3 and a half years minus pretrial custody with 3 years of probation, for the manslaughter death of a friend at a party.

Indigenous Law Centre
Indigenous CaseWatch Blog

The accused hosted a cribbage game at his home in Cambridge Bay. Some of those present, including the accused, smoked cannabis throughout the evening but none were drinking alcohol. The victim sent a text message to the accused that he was drunk and wanted to go to the accused’s house to drink with him. After coming over, the victim drank and tried throughout the evening to convince the accused to drink with him, who eventually succumbed.

At one point the victim became aggressive with the accused and throughout the night, arguing was witnessed. In the early hours of the morning, the victim was discovered dead from a stab wound, and the accused passed out with no recollection of the offense.

By his guilty plea, the accused admitted responsibility for the stab wound that killed his friend, and that he acted in the heat of passion caused by the accused’s sudden, provocative, intoxicated and aggressive behaviour. He admitted to using excessive force and in those circumstances he is guilty of manslaughter and expressed remorse.

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Consideration was also given of potential Gladue factors of the unique systemic or background factors on the accused to help shed light on his level of moral blameworthiness. The accused is 45 years old, a husband and a father of three. He suffered through a very difficult childhood, as his parents were alcoholics who often chose excessive drinking over the welfare and safety of their son. There were times when he had to actually sleep outside in the cold. His criminal record of committing property offences were in context with a lack of supervision and the inability to count on three meals a day and a warm bed to sleep in.

Although rehabilitation is always important, this is a case where the primary goal of sentencing is deterrence and denunciation. The accused is sentenced to three and a half years in jail minus pretrial custody to be followed by three years of probation, along with a number of mandatory orders imposed.

R v HO, 2020 ONCJ

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Gladue factors were asserted, but due to very little information beyond the assertion of Aboriginal status, it had limited weight in this case. The offender was sentenced to a global jail sentence of 8 months, following a period of probation for 18 months.

Indigenous Law Centre – CaseWatch Blog

The offender was found guilty after trial of five sexual offences contrary to the Criminal Code. The sexual assault conviction was stayed when the parties made submissions on sentencing pursuant to the rule in R v Kienapple, [1975] 1 SCR 729. Defence counsel challenged the constitutionality of the remaining four conviction’s mandatory minimum sentences arguing a sentence involving a mandatory minimum would be grossly disproportionate and sought an order declaring their unconstitutionality under s12 of the Charter based on the offender’s learning disability.

The aggravating factors in this case included the fact the victim was 13 years of age. There were numerous offences including kissing, touching of her breast, request for sexual acts, sharing graphic sexual videos and the ultimate request for intercourse. The offender had a related youth record for engaging in similar conduct with a child victim. He knew right from the outset the victim was 13 years old. His acts could not be considered “grooming”, as they escalated in severity. A potential aggravating factor that was missing from the proceedings, was the impact on the victim as she chose not to provide a victim impact statement. His moral blameworthiness remained high based on his conscious decision to engage with a 13-year-old for two weeks and engaging in conduct after completing a program where he would have known about the moral boundaries of intimacy with partners.

The offender is an adult, but is still young and inexperienced. These are his first adult convictions. The offender had the full support of his family and community as evidenced by many letters of support. He had taken positive steps towards rehabilitation by addressing his learning disability, but the learning disability itself was not a mitigating factor. There are many collateral consequences for the offender. Gladue factors were asserted, but due to very little information beyond the assertion of Aboriginal status, it had limited weight in this case.

Balancing the aggravating and mitigating factors, and having regard to an undue sentence having a disproportionate impact on the offender’s learning disability, a sentence of imprisonment of 8 months was warranted for the child luring offence. Having arrived at this conclusion, the Court did not have to consider a s12 Charter analysis of the 6-month mandatory minimum, as the sentence imposed was not grossly disproportionate in the circumstances of the offender and this case. Accordingly, the s12 Charter challenge as framed on this record was dismissed.

 

Ziprick v Simpson Estate, 2020 BCSC 401

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The Plaintiff’s action is allowed. Companies and investors that had invested in a mobile home park are trespassing on a First Nation’s land. They did not comply with the rules set out in the Indian Act, specifically regarding non-band members seeking to engage in business activities on Indigenous lands.

Indigenous Law Centre – CaseWatch Blog

This trial was the culmination of numerous legal and other battles spanning over 30 years involving a 40-acre parcel of land [“Lands”] and a mobile home park known as “Creek Run Park” located on a portion of the Lands. The Lands are part of the Okanagan Indian Band [“OKIB”]. Various construction companies and other investors involved with the development of Creek Run Park have changed names, but the relevant parties will be referred to together as the “Companies”.

Over the past 26 years, the Companies have never obtained a registered head lease from the Minister of Indigenous Services on behalf of the federal Crown [“Crown”] authorizing the Creek Run Park to operate on the Lands. The Indian Act requires such a head lease for Creek Run Park to be constructed and operated. The Companies proceeded with development, construction and significant expansion of Creek Run Park on the expectation that a head lease would eventually be granted to them by the Crown. It never was.

The Plaintiffs are supported by the OKIB, and also hold the right to possession of the Lands under certificates of possession issued by the Crown under s 20(1) of the Indian Act. The Plaintiffs state the Companies have no legal right or other authority to be on the Lands and are therefore trespassing and seek various forms of damages.

While acknowledging that they have no legal right of possession of the Lands and Creek Run Park, the Companies assert that they relied on repeated assurances and agreements that a head lease would be formally agreed to and registered. Alternatively, they counterclaim against the plaintiffs seeking damages and other forms of relief on the basis of the equitable principles of promissory estoppel, unjust enrichment and quantum meruit.

The background and history of this dispute is complex and lengthy. Much of it is not in dispute and include hundreds of documents admitted into evidence by agreement that helpfully explain the chronology of events. The key issue from which all other claims and counterclaims flow is whether or not the Companies are trespassing on the Lands. The combination of the relevant legislation, well-established common law and agreed facts leads to the inescapable conclusion that the Companies are trespassing on the Lands.

Section 91(24) of the Constitution Act, 1982, places reserve lands under federal jurisdiction to be held by the Crown for the use and benefit of Indian bands. The use and management of these lands is governed by the Indian Act. There are clear provisions and a long line of authorities that establish that only the Crown may grant interests in reserve lands. Any non-band member occupying reserve land without being granted an interest by the Crown is in trespass (Indian Act, ss 20–29, 37–41, 58(3); The Queen v Devereux, [1965] SCR 567).

Neither the band nor any band members may enter into legally binding lease agreements and to the extent that they purport to do so, the agreements are void. Such informal arrangements (commonly referred to as “buckshee leases”), are illegal and unenforceable. Before granting a lease of lands held under a certificate of possession, the Crown is required to consult with the band, and consider and give weight to concerns and views of the band. This is done to protect the collective interest of the band in reserve lands that continues despite possession being allocated to individual members (Tsartlip Indian Band v Canada (Minister of Indian Affairs and Northern Development), [2000] 3 CNLR 386). What occurred in this case is precisely why it is important that the process set out in the Indian Act needs to be followed. Failure to do so can lead to the kinds of disputes the parties in this case have been engaged in for 26 years.

The Plaintiffs have proven that the Companies have always been trespassers on the Lands and are entitled to the orders they seek including a tracing order. Considering the whole of the evidence, damages ought to be awarded in favor of the in the sum of $250,000. While on first blush, the evidence suggests that the Plaintiffs have been enriched by the existence of Creek Run Park and its infrastructure, a closer look clouds the point. Instead of properly maintaining the operation to acceptable standards, the Companies essentially ran the operation into the ground and syphoned off as much money as they could pending the predictable outcome of this case. Even if the Plaintiffs have received a benefit, there was no corresponding deprivation to the Companies because they had to build the infrastructure in order to move forward with the development of Creek Run Park, the cost of which they have likely recovered over the years many times over.

This case is a prime example of what can happen when parties hopeful of developing reserve lands, short-circuit or attempt to bypass the process and protections of the Indian Act. Creek Run Park should never have begun, or any continuation of its construction, without securing a properly registered head lease. The Plaintiffs’ action is allowed and the Companies’ counterclaim is dismissed in its entirety.

Neshkiwe v Hare, 2020 ONCJ 42

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Motion granted for the M’Chigeeng First Nation to be added as a party to the proceedings in keeping with the best interests of the child. This matter will eventually involve constitutional questions surrounding the children’s custody.

Native Law Centre
CaseWatch Blog

Following the parent’s separation, an Indigenous mother left Toronto with her two children. Shortly after the father, who is also Indigenous but from a different community than the mother, launched an ex parte motion for temporary custody, that was granted. The ex parte motion ordered the children’s return to Toronto and for police assistance from various police forces to enforce this Court’s order. The mother and M’Chigeeng First Nation [“MFN”] advised the Court they intended to challenge the Court’s jurisdiction to make any orders for custody or access, asserting exclusive jurisdiction of the children.

In the meantime, the Court’s ex parte Order had not been followed. The father initially only served the Order for enforcement on UCCM Anishnaabe Police Service [“UCCM”] and did not serve it on OPP until the term for police enforcement was about to expire. The mother nor the MFN had prepared Notices of Constitutional Questions, while still raising a challenge and taking steps outside the Court consistent with that position. On December 5, the Court directed all Constitutional Question were to be served and filed before December 19 and granted leave to MFN to bring a motion to be added as a party to this proceeding. The enforcement term was stayed on a without prejudice basis.

MFN is asserting exclusive jurisdiction of the children. Both the mother and the MFN have advised the Court that they intend to challenge the Court’s jurisdiction to make any orders for custody or access. They anticipated advancing this claim based on an existing Aboriginal and Treaty right under s 35 of the Constitution Act, 1982. However, neither has been pleaded, nor any Notices of Constitutional Question been served or filed. The mother also took the position that the Court lacked jurisdiction based on the application of an existing By-Law and a Band Council Resolution, both of which had been passed by the MFN, as an alternative legal basis from the anticipated section claims.

Until such arguments could be sorted out, a practical problem unfolded that still exists. The mother indicated to the Court that she would not comply with the Court’s Order. The MFN prohibited the father from coming onto its territory. UCCM refused to enforce the Order, as it had been instructed by the MFN to act in that fashion. The OPP, however, would enforce the Order, but brought the Court’s attention to certain potential negative consequences for the Court to consider. It was suggested to suspend the operation of the police enforcement term until the legal questions are resolved.

The Court has issued another Endorsement containing further directions for the conduct of this case and has asked that a litigation plan be presented. Regarding the police enforcement term, the Court stayed enforcement, which was about to expire anyway, on a without prejudice basis.

The overarching consideration in deciding to add the MFN as a party to the proceedings was in keeping with the best interests of the children. It was not seriously disputed that the First Nation should be added as a party. The s 35 claims have both individual and collective aspects to them. Adding the First Nation to the proceedings was also in the best interests of the children as they have a position to take and to offer evidence surrounding these particular children. Lastly, they have a legal interest. Once that position has been clarified after a full hearing, then they may call into question the Court’s jurisdiction.

Smith v Mohan (No 2), 2020 BCHRT 52

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Remedy granted. An Indigenous woman’s complaint is justified against her landlord that she was discriminated against and harassed connected to her protected characteristics. The landlord is ordered to pay her compensation of lost wages and expenses incurred, as well as $20,000 for injury to her dignity, feelings and self-respect.

Indigenous Law Centre – CaseWatch Blog

Ms. Smith is an Indigenous person and a member of the Tsimshian and Haisla Nations. Smudging is part of her connection to and expression of her Indigenous identity and, for her, a regular spiritual practice. For roughly the first half of 2017, she lived in an apartment she rented from Mr. Mohan. Ms. Smith says that from the time the parties began discussing entering a tenancy and during it, Mr. Mohan said things to her she found offensive and which she says were discriminatory harassment based on stereotypes about Indigenous people. She also says she was adversely impacted in tenancy by what happened when Mr. Mohan learned she had been smudging in her apartment, which included attempts to evict her and – after his attempts to evict her for cause failed – refusing to accept her rent payments. Ms. Smith filed this complaint in which she says Mr. Mohan discriminated against her on the basis of her race, ancestry, place of origin, and religion in tenancy contrary to s 10 of the Human Rights Code [“Code”].

Mr. Mohan denies discriminating against Ms. Smith, but instead were efforts at inter‐cultural dialogue. He also says Ms. Smith was not adversely impacted in tenancy for reasons connected to her protected characteristics by what happened after he learned she smudged. He says he has a policy for his properties that prohibits nuisances and behaviour that damages his property. He says he attempted to evict Ms. Smith because of this policy, not because of her protected characteristics. He also says that, in the alternative, his conduct was justified because Ms. Smith failed to cooperate in his efforts to accommodate her smudging.

Section 10 of the Code prohibits discrimination regarding a term or condition of a tenancy because of the race, ancestry, place of origin, or religion of a person. For Ms. Smith to succeed in her complaint of discrimination under s 10 of the Code, she must prove, on a balance of probabilities, that she experienced an adverse impact in her tenancy and that her race, ancestry, place of origin, or religion were a factor in that adverse impact (Moore v BC (Education), 2012 SCC 61 [“Moore”]).

There is no dispute that, as an Indigenous person, Ms. Smith has one or more of the “constellation” of protected characteristics under the Code relating to one’s cultural background and identity, or that Ms. Smith’s spiritual practices are protected by religion as a protected characteristic. The overriding issue for this matter is whether Ms. Smith was adversely impacted in tenancy for reasons connected to her protected characteristics and, where a justification defence is available, whether Mr. Mohan’s conduct was justified. There is no dispute a complainant has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection (Central Okanagan School District No 23 v Renaud, [1992] 2 SCR 970 [“Renaud”]. If the complainant rejects a reasonable proposal, the respondent’s duty to accommodate is discharged and the complaint is dismissed (Renaud).

Ms. Smith established her case, therefore the burden shifted to Mr. Mohan to justify his conduct (Moore). Mr. Mohan repeatedly accused Ms Smith of smoking marijuana both in messages to her and before the Residential Tenancy Branch, which could be of some significance to a person who is a teacher. He did not pursue this defence at the hearing. Mr. Mohan repeatedly attempted to evict Ms. Smith, both for cause and, when he was unsuccessful, for landlord’s use of property. Mr. Mohan ultimately refused to accept further rent payments from Ms. Smith. Ms. Smith was quite simply denied the right to enjoy her home, especially near the end of her tenancy. The discrimination impacted her ability to meet a fundamental need: a home for herself and her family.

Discrimination in respect of a person’s home can be particularly egregious, and is often marked by a power imbalance between landlord and tenant (Biggings obo Walsh v Pink and others, 2018 BCHRT 174; James obo James v Silver Campsites and another (No 3), 2012 BCHRT 141). Overall, it was found the nature of the discrimination serious and favoured a fairly significant award.

Ressources Strateco inc c Procureure générale du Québec, 2020 QCCA 18

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Appeal dismissed. The Minister has qualified immunity of the state to make his decision to refuse a certificate of authorization to a mining exploration company’s proposal due to a lack of social acceptability from the Cree community. This decision was not made lightly or in a manner indicative of bad faith or serious recklessness.

Indigenous Law Centre – CaseWatch Blog

Strateco Resources Inc [“Strateco”] is a mining exploration company listed on the Toronto Stock Exchange. In 2005 and 2006, when the price of uranium was on the rise, it acquired 559 mining claims in the Otish Mountains region in Northern Quebec, a region recognized for its uranium potential. The proposed mining area is located 210 km from Mistissini, a Cree community, and 275 km from Chibougamau, on territory covered by the James Bay and Northern Québec Agreement [“Agreement”].

The Agreement is a modern treaty designed to reconcile the rights and interests of Aboriginal peoples and those of non-Aboriginal peoples in Northern Quebec. The rights it grants Aboriginal peoples are referred to in s 35 of the Constitution Act, 1982, whose purpose is “[t]he reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship”.

After a number of consultations, the Minister refused to issue the certificate of authorization, stating that the proposal had not garnered social acceptability from the Cree community and has therefore not placed sufficient importance on the principles set out in s 152 of the Environment Quality Act [“EQA”].

Following this decision, Strateco filed legal proceedings against the Attorney General of Quebec [“AGQ”], seeking $182,684,575 in damages and $10,000,000 in punitive damages. Essentially, it argued that the Minister was not entitled to base his refusal to issue the certificate of authorization on the lack of social acceptability. It submitted that the Minister’s decision was not only illegal, but was tantamount to a disguised expropriation of its claims. It further argued that the government of Quebec and the Minister had breached their duty of coherence by announcing a moratorium after having encouraged companies to invest in uranium production in connection with the Plan Nord. The matter was dismissed and Strateco has appealed.

This Court is of the opinion that the appeal should be dismissed. While the Minister’s decision to refuse the issuance of the certificate of authorization does not clearly fall within the category of core policy decisions, it enjoys the qualified immunity of the state. Strateco therefore had to show that the Minister acted in bad faith or with serious carelessness or recklessness. It did not make such proof. The Minister was entitled to base his refusal on the lack of social acceptability of the project, without this being likened to a right of veto granted to the Cree. As for the moratorium announced by the Minister and his refusal to issue the certificate, they do not constitute a disguised expropriation of Strateco’s claims nor a breach of the duty of coherence.

Social acceptability is directly related to the perceived threat that a project may pose to the life or quality of life of a milieu. This perception depends on a multitude of factors, such that the social acceptability of a project, or in other words, its acceptance, does not necessarily correlate to its environmental and social effects. It follows that the Minister was entitled to base his refusal to issue the certificate of authorization on the lack of social acceptability. By giving decisive weight to this factor, he did not stray so far from the principles that ought to guide the exercise of his discretionary power that absence of good faith can be deduced and bad faith presumed. The Minister did not make his decision lightly or in a manner indicative of bad faith or serious recklessness.

Strateco knew from the outset the risk it ran in undertaking its uranium exploration project. It was fully aware that, ultimately, the Minister could either agree or refuse to issue the certificate of authorization. The evidence reveals that all the steps leading to the Minister’s decision were followed. In refusing to issue the certificate of authorization, the Minister merely exercised the right provided for in the EQA. There was no appropriation or stripping of Strateco’s claims. Moreover, Strateco was not dispossessed of the claims. Neither the announcement of a moratorium nor the Minister’s refusal to issue the certificate can be considered an absolute denial of its right of ownership.

Indeed, the evidence shows that uranium is a unique substance that gives rise to many concerns on the part of the public. There is an importance of properly informing the local populations in order to anticipate the factors that could foster the acceptability of the project for these populations. Strateco had fully grasped the fact that social acceptability was at the heart of the project’s feasibility. Strateco has failed to demonstrate that the judge committed a palpable and overriding error. Even if the Court were to find that the government did not expressly indicate to Strateco that social acceptability was a material element for the project’s authorization, the evidence reveals that Strateco had sufficient elements to draw that conclusion itself.

R v James, 2020 YKTC 7

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Although the Court did not have a Gladue Report, it recognized that the accused faced a history of abuse and neglect, often associated with systemic discrimination against Indigenous peoples. All other reasonable options to incarceration were considered in weighing the harm done to the victim and the community.

Indigenous Law Centre – CaseWatch Blog

The accused pled guilty to five offences contrary to ss 334(b), 430(4), 266, 267(b), and 129(a) of the Criminal Code. A Gladue Report and Pre-Sentence Report were ordered. However, the accused decided not to participate in the preparation of the two Reports, so neither Report was available. The author, who was to have prepared the Gladue Report, suggested to the Court that the accused’s declination to be interviewed was due to the childhood difficulties that he had endured. Such challenges included his father abandoning him when he was ten years old and his mother passing away within the same year. His family had their struggles and addictions, so he lacked support and was faced with low self-esteem. He made it to grade 8 but could not read or write. The accused expressed remorse for his actions, and he acknowledged that he needed help through counselling to learn to love himself.

Following the sentencing principles of s 718 of the Criminal Code, the Court analyzed the mitigating and aggravating factors surrounding the accused and his offences. The aggravating factors included his criminal record and his intimate relationship with the victim. The mitigating factors included his guilty pleas, acceptance of responsibility, and the positive and rehabilitative steps he had taken since the last offence was committed, including his compliance with his strict bail conditions. The Court did not have a Gladue Report. Still, the sentencing judge recognized that the accused faced a history of abuse and neglect, which is often associated with systemic discrimination against Indigenous peoples. Since the accused was an Indigenous offender, the Court was required to consider all other reasonable options to incarceration while weighing the harm done to the victim and the community.

The accused is the father of a young child, and he had been working with the mother of his child to create a secure and stable home environment. He was supported by the community, and he had the support to allow him to serve his sentence in the community. After analyzing these factors in combination with the accused’s potential risk of reoffending, the Court sentenced him to four months served conditionally in the community, a probation order of two months, and a recognition of his time served.

Yahey v British Columbia, 2020 BCSC 278

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Application granted. Blueberry River First Nations is not subject to paying the hearing fees regime in this trial. The Court grants a declaration that Item 10 of Schedule 1 in Appendix C of the Supreme Court Civil Rules is of no force and effect insofar as it requires Indigenous peoples who are seeking to uphold or protect their s 35(1) Aboriginal and/or treaty rights from alleged infringements, and who are required to do so through a trial, to pay daily hearing fees to the Crown as the defendant in any such action. If this Court is wrong in reading down the hearing fee provision in the way set out above, then it would exercise its discretion contained in Item 10 of Schedule 1 in Appendix C to order the Crown to pay the hearing fees in this action.

Indigenous Law Centre – CaseWatch Blog

This application arises in the context of an action brought by the Blueberry River First Nations [“Blueberry”] against Her Majesty the Queen in Right of the Province of British Columbia [“Crown”] alleging infringements of their rights under Treaty 8. It addresses the cumulative impacts of a variety of Crown authorized activities occurring in their traditional territory. In this application, Blueberry seeks to be relieved from paying the daily hearing fees prescribed by the Supreme Court Civil Rules [“Rules”] and set out in Appendix C, Schedule 1, at Item 10 for the duration of the trial of the underlying action.

The underlying trial is currently set for 160 days. For Blueberry, that means paying over $120,000 in hearing fees to the Crown. Rule 20-5(1) provides for a waiver of fees in certain circumstances. Blueberry seeks an order under Appendix C, Schedule 1, Item 10 of the Rules that the Crown defendant pay the daily hearing fees; or, in the alternative, a constitutional exemption from paying the hearing fees based on s 35(1) of the Constitution Act, 1982; or, if necessary, a declaration that the hearing fees are constitutionally inapplicable under s 52(1) of the Constitution Act, 1982 to the extent they are inconsistent with s 35(1). They do not seek a waiver of fees based on undue hardship under Rule 20-5(1).

The Crown, as the defendant in this s 35(1) treaty rights claim, cannot charge the plaintiff First Nations substantial fees for access to the court to seek to enforce the Crown’s own treaty obligations. This, Blueberry argues, is inconsistent with the honour of the Crown and the Crown’s duties under s 35(1) to promote reconciliation.

Reconciliation takes place both inside and outside the courtroom. While consultation and negotiation are the primary methods of reconciliation, courts also have a role to play. The parties will not always be able to resolve the issues, and courts will be called on to determine rights and the attaching obligations. In the Aboriginal context, when considering statutes or rules that may bar, prevent or impede Indigenous peoples’ ability to pursue their claims, reconciliation must weigh heavily in the balance (Manitoba Métis Federation Inc v Canada (AG), [2013] 2 CNLR 281).

None of the cases relied on by the Crown dealt with s 35(1) in the context of hearing fees, or considered the impacts on Crown-Indigenous relations, the honour of the Crown, or reconciliation more broadly from charging such fees. This is the first case to consider the constitutionality of hearing fees from that perspective.

This Court does not agree with the Crown’s argument that recognizing the uniqueness of s 35(1) rights, and relieving litigants who seek to advance these rights of the obligation to pay hearing fees, would somehow be establishing a preferential system of access to justice. The charge of a substantial fee, which ultimately is for the Crown’s own benefit, to access the court to seek to uphold a constitutionally protected treaty right is antithetical to the purpose of s 35(1), the principle of honour of the Crown, and the objective of reconciliation. The fee creates an additional obstacle for Indigenous litigants whose claims often require long trials. It is apparent that requiring litigants who are pursuing cases dealing with s 35(1) to pay a hearing fee is in effect an advance that is paid by Indigenous peoples.

The requirement to pay daily hearing fees creates inequality in litigation in these circumstances and is inconsistent with the shared responsibility for reconciliation which is the overarching objective of s 35(1). The fees create unfairness, imposes financial obstacles to litigation (which can become significant in long trials), and reinforces the idea that the promise in s 35 still comes with strings attached. The Court can draw a legitimate distinction for Indigenous peoples in these circumstances based on the Crown’s unique obligation to Aboriginal people, and the unique status of Aboriginal and treaty rights in the Constitution Act, 1982.