Category Archives: Case Watch

Teslin Tlingit Council v Canada (AG), 2019 YKSC 3

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Canada has an obligation to negotiate with parties who have withdrawn from Collaborative Agreements and an obligation to negotiate in accordance with the provisions setting out accommodations for demographic changes in Self-Governance Agreements.

This case involved an application to the Yukon Supreme Court by the Teslin Tlingit Council (“TTC”) seeking six declarations against the Government of Canada in relation to negotiations pertaining to two agreements. The Final Agreement (“FA”) and the Self Governance Agreement (“SGA”) were entered into in 1993 between the TTC and the Government of Canada, and follows the Yukon-wide Umbrella Final Agreement. Rather than address each declaration, the Court elected to frame the legal issue as to whether Canada had a legally binding obligation to negotiate a Self-Government Financial Transfer Agreement with TTC, and taken into account, funding based on the Citizens of TTC in accordance with the terms of the FA and SGA. The Court held that Canada had a legal obligation to negotiate a self-government Financing Transfer Agreement with the TTC pursuant to the FA and s.16.1 and 16.3 of the SGA, including funding based on TTC citizenship. It was further held that Canada had failed to uphold such an obligation and ordered declaratory relief.

It was noted that the SGA was provided based on the number of Status Indians without accounting for the increase in the number of persons that must be accounted for. This continued to be the policy position of the government through multiple rounds of negotiations leading up to the expiry of the 2010 Financial Transfer Agreement.  In 2015, with the election of the new government Canada, a new policy was released entitled “Canada’s Fiscal Approach to Self-Government Arrangements” (“2015 Fiscal Approach”). The 2015 Fiscal Approach was the first time that Canada’s methods and approaches to FTAs were made transparent to the public and the parties. This new policy made no changes to the calculus of the Aboriginal population.

In 2016, the Minister of Indigenous and Northern Affairs began a Collaborative Process in response to a recommendation from a First Nation coalition. The TTC withdrew from the Collaborative Process in the fall of 2016 in order to focus on meaningful implementation of the FA and SGA, after which Canada effectively halted negotiations with the TTC pending the completion of the Collaborative Process. The Court concluded that “since their withdrawal, Canada has failed to negotiate and address the major problems with TTC.”

In the Court’s view, the failure to negotiate resulted from a misinterpretation of Canada’s obligations under the FA and SGA. While s.24.12.1 of the FA does indicate that agreements are not to be construed as treaty rights, narrowly construing the obligations under s.16.1 and s.16.3 as non-constitutional rights downplays the constitutional obligations flowing from “Chapter 3 Eligibility and Enrollment” of the FA. This chapter indicated that eligibility for TTC services will be based on blood quantum and not on registration under the Indian Act. Even though the FA does not require Canada to fund every Citizen of TTC, provisions in the SGA do commit Canada to negotiate demographic factors of TTC in order to provide resources enabling public services to be reasonably comparable to those prevailing in the Yukon and at reasonably comparable levels of taxation.

Citing Nacho Nyak Dun and Little Salmon, as precedents for the importance of modern treaties for the project of reconciliation, the Court concluded that Canada did have a legal obligation to negotiate with the TTC and to provide funding based on citizenship. It was added that s.16.3 of the SGA requires a polycentric approach to negotiation and to consider the competing factors at play, and that: (1) there is utility in granting the declaration; (2) that there is a cognizable threat to a legal interest; and (3) that there is a long-standing preference for negotiated settlement. The Court granted declaratory relief and rejected Canada’s submissions that the declaration is inconsistent with reconciliation and the nation relationship, holding that the declaration promotes reconciliation by ensuring Canada adjusts policy on a timely basis.

The Children’s Aid Society of Algoma v CA, 2018 ONCJ 592

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Relief granted for an amendment to the identification findings of a First Nation child and his band.

The Children’s Aid Society of Algoma (“the Society”) brought a motion seeking a determination under s.90(2)(b) and s.2(4) of the recent Child, Youth and Family Services Act (“CYFSA”) of whether L.A., who is one years old, is a First Nation child, and if so, that the Batchewana First Nation be added as a party Respondent in this child protection proceeding. Also sought in the relief was a determination that the Batchewana band is the child’s band. Although unusual to make such determinations through a formal motion claim, there is merit to this becoming common practice. The original identification motion did not identify L.A. as a First Nation, Inuit or Métis child based on the evidence in the file at the time. In this re-opened motion, there was additional evidence filed by the Society that included an affidavit of a band representative of Batchewana First Nation that was sworn almost 25 years ago. It was for a protection proceeding in which C.P., the biological father of L.A. in this present case, was the subject child. She stated that “[t]he child C.P. is eligible for registration with [the] Batchewana First Nation”. The Society served the band representative with its motion seeking identification findings. No evidence was filed by the band representative, nor were any submissions made by her on the issue of the identification of the child.

Identification findings under the previous Child and Family Services Act (“CFSA”) were rarely, if ever, done by way of a motion. Often, the findings, especially on Status were done summarily, with no sworn, or very thin, evidence. If no band representative was named as a party in the application, the band representative would have no standing to make any comment. Such a finding, if done by motion, would at least have some standards of evidence and might afford any band an opportunity to be heard prior to a finding being made. While there are now many possible ways by which a child protection court can determine whether a child is a First Nation child, under s.1 of O. Reg. 155/18 this is not the end of the Court’s duty. If the Court determines the child to be a First Nation child, it must then move on to determine the child’s “bands”. The plural is used because it is possible that the child may have more than one band with different membership criterion. To end the determination process once only one band has been identified may be a mistake as there might be benefits from having several bands, including more options in the child protection proceeding with several band representatives.

The first determination is whether a court can ascertain the views of the child on which band(s) the child identifies itself. If the child’s views cannot be ascertained, it is still a matter of whatever band(s) a parent of the child indicates the child identifies with. This information from a parent would likely be ‘hearsay’ that the court is directed by s.21 of O. Reg. 156/18 to accept without question. However, in any child protection case, a child may have multiple ‘statutory’ parents, including some not related by blood, and each of them is entitled to indicate one or more bands with which the child identifies. This rule of interpreting the child’s band does not seem to require a parent to justify his or her indication with any evidence or information. All that is required is that person’s indication of the band(s) with which the child identifies. On the other hand, a parent may fail to make any indication at all, which is not uncommon, as in the present case. Courts normally act on evidence but none seems to be required on this issue.

Another significant provision that is relevant to this motion is s.79(1) of the CYFSA which deals with who are statutory parties in a proceeding. This is important because it adds the child’s bands as formal respondent parties in the child protection, or Status review, application before the court, where an identification finding is made that a child is a First Nation child. From a band point of view, it provides all of the rights that any party has in the application and it permits the child’s band(s) to make an important contribution. It also enables the band representative to advocate its own interests in the proceeding which may or may not coincide with those of the child or another party. The band representative, however, is a party from the outset only if named as a party by the applicant in the application, which is usually a society. This requires a society to anticipate which band(s) should be named as parties. The recent CYFSA has introduced a much more complex process for identifying a First Nation child and its band(s). In this case, the Society has brought a motion seeking judicial identification of the child not only as a First Nation child, but also a determination of the child’s band if so identified. No band representative is named as a party in this child protection case. If this is going to become the status quo procedurally, then a band will have no say in whether a child is a First Nation child, or which is the child’s band. In the Court’s view, it would be better by far to have a band or bands involved in the identification determination under s.90(2) CYFSA. This is easily done by a motion.

As for the determination of whether L.A. is a First Nation child, the Court has to look for any information that a relative of L.A. identifies as a First Nation person. There is such information. The Society affidavit provides the information that the father’s father, that is the child L.A.’s paternal grandfather, was not only a Status Indian and had an Indian Status card, but was also a member of the Batchewana band. Indian Status and Batchewana band membership of the child’s relative is sufficient to find under O. Reg 155/18 s.1(c)(i) that L.A. is a First Nation child and his band is the Batchewana First Nation band. A band representative shall be added as a party Respondent in the child protection application. In the event that this finding is incorrect, the Court has recourse to subclause (ii) of O. Reg 155/18 s.1. which directs the Court to look for any information that demonstrates a “connection” between a child and a band. The characteristics of the connection are not described, therefore the Court has chosen a broader approach that seems to be more in accordance with the spirit of the recent CYFSA. The band or the First Nation still has the option of not participating actively in the case or with the child.

 

 

The Children’s Aid Society of Brant v SG

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Applicant’s motion for summary judgement denied. A Children’s Aid Society did not meet its onus for evidence in the pursuit of an order to place a child in extended care with no access.

The Applicant, the Children’s Aid Society of Brant (“The Society”), was seeking preliminary findings, protection findings and an order of disposition placing the child, M. G-D. (“M.”) born in 2017 and aged one year a the time of this application, in extended care with no access. The motion for summary judgment has been denied. There is ample evidence that M. is a medically fragile child. He has been diagnosed with a serious congenital heart condition known as ventricular septal defect as well as double outlet right ventricular transposition of the arteries, pulmonary stenosis and pulmonary atresia. He required the administration of oxygen at birth, has had heart surgery in June 2018 and will require further surgery in the future. M. must attend Sick Children’s Hospital in Toronto on a regular basis for cardiac follow-up, checks of his oxygen and saturation levels as well as close monitoring of his weight. There was additional evidence that demonstrated that when M. becomes ill he can become very ill very quickly and thereby requires timely medical attention.

The respondent father indicated that he identifies as Ojibway but does not have a “status card” and that the child does not have status as First Nations. The Society did not, despite court instruction to do so, clearly assess whether the child was First Nation, and if so whether there was an Indigenous community that was a party. It was apparent during numerous discussions and stand-downs that occurred, that no one understood precisely what questions needed to be asked or what the test was, let alone how to apply the information obtained to the legal test. In a child protection proceeding it is a vital question and a determination that the Court is statutorily obligated to make. M. is a young child who has been the subject of an application seeking extended care without access and has been in the Society’s care his entire life. His right to an orderly and expeditious hearing of the pertinent issues should never have been compromised by the lack of follow through on legislatively prescribed requirements. Section 90(2) of the Child Youth and Family Services Act reads as follows: “As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine, (a) the child’s name and age; (b) whether the child is a First Nations, Inuk or Métis child and, if so, the child’s bands and First Nations, Inuit or Métis communities; and (c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.”

The early determination of whether a child is First Nation and the appropriate Indigenous community is a particular priority for a number of reasons. First, it triggers an obligation by the Society to meet the child’s cultural needs. Second, if there is an identifiable Indigenous community, that community is a party to the proceeding and service is required. Child protection proceedings are conducted in the adversarial, not the inquisitorial style. The Court thus must rely on the parties to provide the requisite evidence in order to determine the issues. In the Court’s view, the Society’s assertion that its worker was only “informed” of the father’s status through service of his affidavit on November 1, 2018, does not assist it. Parents caught up in child protection proceedings are often stressed and vulnerable. It is not reasonable to assume that the parents will understand the need to self-identify at an early stage. Even where the parents have counsel, counsel’s primary obligation is to his or her client.  When a child is in Society care, the Society is that child’s guardian. The Society, therefore, has an obligation to that child to ensure these inquiries are made early and proactively.

These events have also been a “wake-up call” to this Court. Although the Court is dependent on parties providing evidence, the Court should be extremely mindful of its supervisory role to ensure that findings are, indeed, addressed “as soon as practicable”. In 2015, the Truth and Reconciliation Commission released a Call to Action under the heading Child Protection. It called upon the federal, provincial, territorial and Aboriginal government to commit to reducing the number of Aboriginal children in care. To that end, it asks the governments inter alia to “[e]nsure that social workers and others who conduct child welfare investigations are properly educated and trained about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing.” It also implored governments to establish as an important priority a requirement that placements of Aboriginal children in temporary and permanent care be culturally appropriate. Neither of these steps can be effected if the Society is not diligent in ensuring early identification of First Nation children and their bands or Indigenous communities.

Canada (Canadian Human Rights Commission) v Canada (AG), 2018 SCC 31

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Appeal dismissed. Tribunal decisions stand that the complaints were a direct attack on legislation. Legislation not a service under the Canadian Human Rights Act.

This appeal concerns several complaints alleging that Indian and Northern Affairs Canada (“INAC”) engaged in a discriminatory practice in the provision of services contrary to Section 5 of the Canadian Human Rights Act (“CHRA”). This section prohibits, among other things, the making of discriminatory distinctions in the provision of services customarily available to the general public. The Indian Act, since its enactment in 1876, has governed the recognition of an individual’s status as an “Indian”. The Indian Act has a registration system under which individuals qualify for this status on the basis of an exhaustive list of eligibility criteria. It is incontrovertible that status confers both tangible and intangible benefits. INAC denied a form of registration under the Indian Act that the complainants would have been entitled to if past discriminatory policies, now repealed, had not been enacted.

In two separate decisions, Matson v Canada (Indian and Northern Affairs), 2013 CHRT 13 and Andrews v Canada (Indian and Northern Affairs), 2013 CHRT 21 (“Andrews”), the Canadian Human Rights Tribunal (“Tribunal”) determined that the complaints were a direct attack on the Indian Act. On the basis that legislation is not a service under the CHRA, it dismissed the complaints. On judicial review, both the Federal Court ([2015] 3 CNLR 1) and the Federal Court of Appeal ([2016] 4 CNLR 1), found that the Tribunal decisions were reasonable and should be upheld. Two issues were before this Court: (1) whether deference is owed to a human rights tribunal interpreting its home statute and (2) whether the Tribunal’s decisions dismissing the complaints as direct attacks on legislation were reasonable.

On the first issue, where an administrative body interprets its home statute, there is a well-established presumption that the reasonableness standard applies. In applying the standard of review analysis, there is no principled difference between a human rights tribunal and any other decision maker interpreting its home statute. Where an administrative body interprets its home statute, the reasonableness standard applies Dunsmuir v New Brunswick, 2008 SCC 9 (“Dunsmuir”). In both of its decisions, the Tribunal was called upon to characterize the complaints before it and ascertain whether a discriminatory practice had been made out under the CHRA. This falls squarely within the presumption of deference. The Tribunal clearly had the authority to hear a complaint about a discriminatory practice, and the question of what falls within the meaning of “services” is no more exceptional than questions previously found by the Court not to be true questions of jurisdiction.

A contextual analysis would not rebut the presumption in this case. Where the presumption of reasonableness applies, the contextual approach should be applied sparingly in order to avoid uncertainty and endless litigation concerning the standard of review analysis. The presumption of reasonableness was intended to prevent litigants from undertaking a full standard of review analysis in every case. This Court may eventually find it necessary to revisit the standard of review framework. However, dissatisfaction with the current state of the law is no reason to ignore the precedents following Dunsmuir. Where a contextual analysis may be justified to rebut the presumption, it need not be a long and detailed one. Changes to “foundational legal tests” are not clear indicators of legislative intent, and do not warrant the application of the contextual approach or, by extension, correctness review. Nor does the absence of a privative clause, the fact that other administrative tribunals may consider the CHRA, the potential for conflicting lines of authority, or the nature of the question at issue and the purpose of the Tribunal.

On the second issue, the adjudicators reasonably concluded that the complaints before them were properly characterized as direct attacks on legislation, and that legislation in general did not fall within the meaning of “services”. Although human rights tribunals have taken various approaches to making a distinction between administrative services and legislation, this is a question of mixed fact and law squarely within their expertise, and they are best situated to develop an approach to making such distinctions.

The adjudicator in Andrews noted that the sui generis nature of Parliament’s power to legislate is inconsistent with the characterization of law-making as a public service and that law-making does not have the transitive connotation necessary to identify a service customarily offered to the public. Parliament is not a service provider and was not providing a service when it enacted the registration provisions of the Indian Act. Law-making is unlike any of the other terms listed in s 5 as it does not resemble a good, facility or accommodation. It is sui generis in its nature. This is confirmed by the powers, privileges and immunities that Parliament and the Legislatures possess to ensure their proper functioning, which are rooted in the Constitution. The dignity, integrity and efficient functioning of the Legislature is preserved through parliamentary privilege which, once established, is afforded constitutional status and is immune from review. The disposition of this appeal, however, says nothing as to whether the Indian Act infringes the rights of the complainants under s 15 of the Charter. In this regard, there have been two successful challenges to the Indian Act registration provisions, both of which have prompted legislative reform (Descheneaux v Canada (Attorney General) [2016] 2 CNLR 175 (QCCS); McIvor v Canada (Indian and Northern Affairs, Registrar), [2009] 2 CNLR 236 (BCCA).

Furthermore, Parliament can be distinguished from the administrative decision makers that operate under legislative authority. These individuals and statutory bodies, which include the Registrar, may be “service providers”, or entities that provide services customarily available to the general public. If they use their statutory discretion in a manner that effectively denies access to a service or makes an adverse differentiation on the basis of a prohibited ground, s 5 will be engaged. But, when their job is simply to apply legislated criteria, the challenge is not to the provision of services, but to the legislation itself (Public Service Alliance of Canada v Canada Revenue Agency, 2012 FCA 7). The complaints did not impugn the means by which the Registrar had processed their applications, but substantively targeted the eligibility criteria that the Registrar was required to apply. Both Tribunal decisions stand on their own merits.

A Summary of the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples

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This document provides a summary of the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples (the Directive).

The Directive was written by Jody Wilson-Raybould, the former Attorney General of Canada, in response to her mandate letter from Prime Minister Justin Trudeau. It outlines a series of litigation guidelines instructing Crown counsel as to how the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples (the Principles) must be applied in civil litigation involving Indigenous peoples.

The former Attorney General articulates that the guidelines are intended to reflect a significant shift in Crown-Indigenous relations. In particular, the Directive recognizes the limited ability of litigation to achieve the sort of reconciliation and renewal required in Crown-Indigenous relationships. The former Attorney General recognized that Indigenous peoples are entitled to select their own forum to resolve legal issues while also reiterating that where litigation is important, the guidelines should direct the Government’s positions and strategies.

The former Attorney General went on to outline that the Directive applies to section 35 of the Constitution Act, 1982, which entrenches Aboriginal and Treaty rights, as well as other Crown obligations towards Indigenous peoples. It is intended to animate the advice provided by departments and Cabinet towards the goal of reconciliation with Indigenous peoples, which is the fundamental purpose of section 35 of the Constitution. Importantly, the Directive indicates that the honour of the Crown is reflected not just in the substance of positions taken by the Crown in litigation, but also in how those positions are expressed. This broader goal is grounded in four main objectives: (1) advancing reconciliation; (2) recognizing rights; (3) upholding the honour of the Crown; and (4) respecting and advancing Indigenous self-determination and self-governance.

The Litigation Guidelines are as follows:

Litigation Guideline #1 – Counsel must understand the Principles and apply them throughout a file’s lifespan.

Counsel must seek to understand and apply Indigenous perspectives, recognizing the diversity of Indigenous perspectives and the rights underlying these varied relationships.

Litigation Guideline #2 – Litigation strategy must reflect a whole-of-government approach.

Principle 3 requires the Government to act with honour, integrity, good faith and fairness in all dealings with Indigenous peoples. To this end, counsel must endeavour to engage in discussions between Indigenous peoples and the departments and agencies about the way in which litigation might affect their relationship. This guideline calls for litigation strategies that are firmly rooted in the policies of the Crown and advocates awareness of government-wide implications of judicial decisions or settlements. This will necessitate broad consultation from government actors.

Litigation Guideline #3 – Early and continuous engagement with legal services counsel and client departments is necessary to seek to avoid litigation.

In order for conflict and litigation to become the exception and not the rule, counsel must engage with client departments and agencies as soon as they become aware of a conflict that may result in litigation, and endeavour to develop coordinated approaches that aim to resolve disputes without litigation.

Litigation Guideline #4: Counsel should vigorously pursue all appropriate forms of resolution throughout the litigation process.

The primary goal of counsel must be to resolve issues, using the court process as a forum of last resort. Forms of resolution such as alternative dispute resolution processes (such as negotiations and mediations) must be considered including the invocation of Indigenous legal traditions or other traditional Indigenous approaches. Consideration must also be given to creative solutions with other department counsel and other government departments or agencies.

Litigation Guideline #5: Recognizing Aboriginal rights advances reconciliation.

This guideline recognizes that the Principles necessitate a change in the interpretation and governing of Aboriginal rights. It specifically points to Principles 1 and 2, which call on the Government of Canada to ensure its dealing with Indigenous peoples are based on the recognition and implementation of the right to self-determination and state that reconciliation requires hard work, changes in perspectives and action, compromise, and good faith. It also specifically points to the need to recognize Aboriginal rights, including Aboriginal title, wherever these can be recognized. Litigation counsel is advised to avoid taking positions or adding parties to litigation that undermine the ability of Indigenous groups to resolve disputes amongst themselves.

Litigation Guideline #6: Positions must be thoroughly vetted, and counsel should not advise client departments and agencies to pursue weak legal positions.

Counsel should resolve differences of opinion on available arguments and the strength of legal positions through discussion. Where discussion fails, consultation and approval must be done in an appropriate manner.

Litigation Guideline #7: Counsel must seek to simplify and expedite the litigation as much as possible.

Counsel must ensure that litigation is dealt with promptly and consider resource imbalances between parties.

Litigation Guideline #8: All communication and submissions must be regarded as an important tool for pursuing reconciliation.

This guideline emphasizes the role of written and oral submissions as an instrument of communication between the parties, the Attorney General, Indigenous peoples, the judicial system and the public. In these pleadings, efforts must be made to advance reconciliation through the application of the Principles.

Litigation Guideline #9: Counsel must use respectful and clear language in their written work.

The Attorney General is expected to be a model litigant, upholding the expectation and maintaining high standards of civility and advocacy in their communication with the courts, Indigenous peoples or their counsel.

Litigation Guideline #10: Legal terminology must be consistent with constitutional and statutory language.

Counsel should abide by the specific terms used in the Constitution, by Parliament, and by the legislatures relating to Indigenous peoples, including the term Aboriginal as defined by section 35 of the Constitution Act, 1982, the term “Indian” as it appears in subsection 91(24) of the Constitution Act, 1867, and the term First Nation in reference to the First Nations Land Management Act, S.C.

Litigation Guideline #11: Overviews must be used to concisely state Canada’s position and narrow the issues.

An overview of Canada’s position, whether in pleadings or in factums, is an important communicative tool. The overview must be used to plainly explain Canada’s position, outlining what is and what is not an issue.

Litigation Guideline #12: To narrow the scope of litigation, admissions ought to be made, where possible.

Admissions of facts that support claims of historical harm should be acknowledged, with approval from the client and Assistant Deputy Attorney General. In pleadings, facts that are known to support the statements in the Indigenous party’s pleading and that may advance reconciliation should be explicitly stated and not just admitted where appropriate. For example, instead of only listing those paragraphs with such facts in a generic statement of admission, counsel should affirmatively plead those facts:

In response to paragraph x of the statement of claim, since at least the date of contact, the plaintiffs and their ancestors have lived at various sites in the vicinity of the identified area.

Litigation Guideline #13: Denials must be reviewed throughout the litigation process.

Denials made at early stages of litigation, when the facts may be unknown and when it would be imprudent to admit too much, must be withdrawn if and when it becomes clear that such denials are inconsistent with the available evidence.

Litigation Guideline #14: Limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence.

Long-standing federal positions such as extinguishment, surrender and abandonment are discouraged by the Principles. These defences should only be pleaded where there is a principled basis and evidence to support to the defence. Moreover, where litigation has been long delayed, defences such as laches and acquiescence are preferable to limitation defences.

Litigation Guideline #15: A large and liberal approach should be taken to the question of who is the proper rights holder.

This guideline speaks to the right of Indigenous peoples and nations to define for themselves who the rights-bearing collective is. Canada should not object to the entitlement of a group to bring litigation when rights are asserted on behalf of larger entities where no conflicting interests exist.

Litigation Guideline #16: Where litigation involves Federal and Provincial jurisdiction, counsel should seek to ensure that the litigation focuses as much as possible on the substance of the complaint.

Litigation Guideline #17: Oral history evidence should be a matter of weight, not admissibility.

Litigation Guideline #18: Decisions on judicial reviews and appeals should be subject to full consultation within government and be limited to important questions.

Litigation Guideline #19: Intervention should be used to pursue important questions of principle.

This guideline indicates that intervention requires consideration of whether the Attorney General’s intervention can assist the course through the provision of legal or constitutional perspective not addressed by the parties to the dispute.

Litigation Guideline #20: All files must be reviewed to determine what lessons can be learned about how the Principles can best be applied in litigation.

The final guideline suggests a review process that will enable counsel and the client department to learn from each litigation case by reflecting on how similar litigation cases can be avoided in the future.

For more information on the Principles see: Principles respecting the Government of Canada’s relationship with Indigenous Peoples.

For more information on the Directive see: The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples.

Editor’s Note: Professor Larry Chartrand of the University of Ottawa and former Director of the Wiyasiwewin Mikiwahp Native Law Centre, contributed his thoughts and expertise that assisted the improvement of the Directive.

Ahousaht Indian Band and Nation v Canada (AG), 2018 BCSC 633

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Declaratory relief allowed for Aboriginal right to right-based “all species” commercial fishery.

The plaintiffs are five First Nations whose territories are located on a strip of varying widths along the West Coast of Vancouver Island and are part of the fourteen Nuu-chah-nulth group of Nations. This trial took place in two stages, which was unanticipated by either party when it began. The first part of the trial was heard by a different judge who issued reasons in Ahousaht Indian Band and Nation v Canada (AG), [2010] 1 CNLR 1 (BCSC), as well as declarations. There were originally eleven plaintiffs in this action. However, the initial Statement of Claim claimed Aboriginal title on behalf of each of the eleven Nations, as well as Aboriginal rights. Because some of the title claims overlapped, it was ordered that the plaintiffs choose one or more Nations whose claims to title did not overlap, and the claims of those plaintiffs would proceed in this action. The present five plaintiffs proceeded to trial with their claims but the remaining claims have yet to be tried.

The plaintiffs asserted an Aboriginal right to harvest fisheries resources for a variety of purposes including for food, social and ceremonial purposes, commercial purposes, and so on. It was declared in 2009 that the plaintiffs have an Aboriginal right in these terms: “to fish for any species of fish within their Fishing Territories and to sell that fish”. However, the Fishing Territories were limited to a nine-mile strip or Court Defined Area (“CDA”). It was also declared that the entire fisheries management regime, consisting of legislation, regulations, and policies, constituted a prima facie infringement of that right. The trial was then adjourned to allow the parties to negotiate a fishery based on this declaration. In the event the negotiations (“Negotiations”) were unsuccessful, they could return to court on the issue of whether Canada could justify its legislative, regulatory and policy regimes as they apply to the plaintiffs’ Aboriginal fishery, named T’aaq-wiihak, which means “permission to fish”.

The history of this action is complex and interwoven with another action on Aboriginal fishing rights (Lax Kw’alaams Indian Band v Canada (AG), [2011] 4 CNLR 346 (SCC)) (“Lax Kw’alaams”), which proceeded slightly ahead of this action, and this Supreme Court of Canada (“SCC”) decision has influenced the course of the present action. After the 2009 judgment, the Negotiations began in 2010, but soon led to a reactivation of the litigation. The Negotiations have continued and are ongoing. Meanwhile, following the first stage of the trial, Canada appealed the 2009 decision. That appeal was dismissed by the Court of Appeal in 2011 (Ahousaht Indian Band v Canada (AG), [2011] 3 CNLR 1 (BCCA)). The Court of Appeal upheld the trial decision but removed geoduck species from the “any species” list of the right-based fishery and included other minor variations. Canada then appealed to the SCC. The SCC remanded this present case back to the Court of Appeal in 2012 with no reasons, but with a direction that the case be reconsidered in accordance with their recent decision in Lax Kw’alaams. After reconsideration, the Court of Appeal once again dismissed the appeal and confirmed its order from 2011 (Ahousaht Indian Band v Canada (AG), [2013] 4 CNLR 31 (BCCA)). Canada applied to the SCC for leave to appeal the reconsideration decision but was denied in 2014. This court is bound by the Court of Appeal’s 2013 reconsideration decision. The stage of this trial then began in 2015 where the parties agreed that a justification analysis is required for each species of fish for which the plaintiffs have submitted fishing proposals.

This case as it stands can only be concerned with the justification analysis. The 2009 declared Aboriginal right cannot be redefined, despite being general without any qualifiers. However, in order for the justification analysis to take place, the Court held that the right has to be clearly described. The only way to circumscribe the right-based fishery at this stage of trial was by using what could be inferred from reading the 2009 reasons as a whole. Although the Court rendered general comments regarding the infringement and justification analysis in the present case, it found that a justification analysis had to be done in a species-specific manner. An analysis of continuity in respect of each individual species, however, could not result in subtraction of species from the “any species” declaration, despite the 2011 Court of Appeal’s removal of the geoduck species, which was eliminated on the basis of fishing technique.

The 2009 declaration has been described as a two-edged sword. Canada is bound by the right as declared, but the plaintiffs are bound as well, and unhappy with the nine-mile limit for a right-based fishery. They cannot exercise their right within the CDA in a way that is satisfactory to them. The conclusion to be drawn from interpreting the 2009 reasons as a whole, despite the lack of parameters in the declarations, is that the declared right to fish for any species and to sell that fish is to be interpreted as a small-scale, artisanal, local, multi-species, right-based fishery, to be conducted in a nine-mile strip from shore, using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation.

Canada, however, did not take the position that the entire regime, found to be a prima facie infringement, could be justified and should remain unchanged. Given all the circumstances and complexity surrounding the procedural history and subsequent Negotiations, it was considered inappropriate or unnecessary to make a general declaration in respect of a failure of the duty to consult in good faith either under the common law or under the declaration. There were stumbling blocks presented by both sides, and the process is still in progress. The Court also noted the Department of Fisheries and Oceans’ commitment to ongoing deep consultation, and therefore did not see this as an issue upon which the justification analysis should stand or fall.

Editor’s Note: Six First Nations governments and three industry groups sought leave to intervene on the basis that each has a public interest in a public law issue and each can bring a valuable perspective to the Court. On November 7, 2018, leave for all nine applicants was granted by the British Columbia Court of Appeal but limited to issues that will not be repetitive and will be helpful to the Court (Ahousaht Indian Band and Nation v Canada (AG), 2018 BCCA 413).

MRC de Roussillon v MRN, 2017 QCCS 3744

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Application dismissed. There is no duty to consult between the province and its municipalities about lands being transferred to the Federal government for the purposes of adding to a First Nation reserve.

The Applicants sought to have an Order in Council of the Government of Québec declared invalid on the basis of bad faith or abuse of power by the Québec government. The Order concerns vacant lands located on the territory of the Municipalité Régionale de Comté de Roussillon (“RCM”) and adjacent to the Kahnawake Reserve (the “Lands”), which the Ministère des Transports du Québec (“MTQ”) acquired several years ago to extend a highway. With the extension completed, the Lands were no longer needed for road purposes. The Order transfers the usufruct of the Lands to the Government of Canada for a possible addition to the territory of the Kahnawake Reserve. In the alternative, the Applicants also argued that condition No. 3 of the Order is ambiguous and void, as it has the effect of expanding the Kahnawake Reserve. They claim the Province does not have the legislative authority to create an Indian Reserve.

The Order transfers the usufruct of the Lands free of charge to the federal government for the benefit of the Kahnawake Mohawk Indian Band. Some of the Lands and the extension of the highway were located on the territory of the Seigneurie du Sault-Sault-Louis (SSSL), for which the Mohawks of Kahnawake filed a specific claim in the early 1990’s, alleging that the King of France gave them the territory. Since 2003, this specific claim has been under discussion with the federal government and is still ongoing.

The mechanism for transferring lands of the Québec province in order to reserve them for Indians is regulated under Québec and federal laws. The Minister of Natural Resources and Wildlife first designates the lands, and then the Québec government may “reserve and allot” the lands by adopting an order to transfer, gratuitously, the usufruct of the lands to the Government of Canada, with a view to administering it in trust for the Indian bands. No other legislative condition limits the exercise of the Québec government’s discretion in this regard. The Order, however, is only the first step in an administrative process by which the provincial lands will be added to the Kahnawake reserve as “designated lands” within the meaning of section 2(1) of the Indian Act. The process of creating an Indian reserve or adding to an existing reserve (known as “ATR” – Additions to Reserves) is subject to a specific legislative framework. A federal directive also regulates the ATR process including “an early and healthy dialogue between the First Nation, the public and affected individuals and interest groups to increase awareness and deal with potential issues”. However, “municipal governments do not have a general or unilateral veto over the granting of reserve status” and discussions with municipal governments “should not unreasonably delay the proposal” of an ATR.

The Order is political and therefore a purely administrative decision of the Québec government, or Cabinet, which is the top of the administrative and political power hierarchy. The adoption of the Order is a political decision and carries no obligation of procedural fairness or consultation with regard to the individuals affected. In respect of the autonomy, latitude and discretion enjoyed by the government in this area, any challenge to such a decision can be based only on very limited grounds. In making a political decision, the government cannot act against the law or abuse its discretion. The Order does not contravene any law. As for the rest, the government must answer for its political decisions to the electors and not the courts.

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

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

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

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

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

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

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

 

Lac Seul First Nation v Canada, 2017 FC 906

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Canada breached its fiduciary duty to the Plaintiffs and must pay equitable damages of $30 million; third party claims against Ontario and Manitoba dismissed.

The Lac Seul First Nation [LSFN] claimed that Canada breached its treaty with the LSFN (Treaty No. 3), the Indian Act, and its fiduciary duties and obligations. LSFN sought damages from Canada for losses from the flooding of part of the LSFN Reserve following the construction of the Ear Falls Storage Dam where Lac Seul drains into the English River. LSFN requested punitive damages and costs along with equitable compensation for a loss of opportunity for hydroelectric benefits, past present and future, in the amount of $506.6 million including avoidable losses due to erosion, loss of timber and community infrastructure in the amount of $40 million.

The Lac Seul Storage Project provided the water reservoir necessary to permit power generation for the City of Winnipeg and Northwestern Ontario. In 1929, the Ear Falls Storage Dam was completed, as part of a project to maximize the potential for hydroelectric developments on the Winnipeg River in Manitoba to provide power to the City of Winnipeg. The parties agreed that this part of the LSFN Reserve land is now under water. With the flooding, the LSFN lost the use and enjoyment of this portion of its Reserve. Other impacts from flooding on the LSFN included lost houses, wild rice fields, and the separation by water of two of its communities, Kejick Bay and Whitefish Bay.

Ultimately the Court assessed the Plaintiffs’ equitable damages at $30 million. The factors considered included the amount of the calculable losses and that many of the non-quantifiable losses created in 1929 persisted over decades, and some still continue. The failure to remove the timber from the foreshore created an eyesore and impacted the natural beauty of the Reserve land. This created a long-term water hazard effecting travel and fishing for members of the LSFN. The flooding negatively affected hunting and trapping. Although Canada supplied the materials to build the replacement houses, the LSFN members supplied their own labour. The LSFN docks were not replaced, as well hay land, gardens and rice fields were destroyed. Two LSFN communities were separated by water and one became an island, impacting the ease of movement of the people who lived there. Canada failed to keep the LSFN informed and never consulted with the band on any of the flood related matters that affected it, creating uncertainty and anxiety for the band. Canada failed to act in a prompt and effective manner to deal with compensation with the LSFN prior to the flooding and many years after the flooding, despite being aware of the negative impact on the band members.

It was determined that this $30 million in equitable compensation would be sufficient to put LSFN back in the place they would have been but for the breach and would meet the objectives of retribution, deterrence, and denunciation, as there have been no punitive damages awarded in an Aboriginal law context. A declaration was also sought that the LSFN legal interests in the flooded lands and the freeboard area have not been encumbered or extinguished. Canada admitted and accepted that LSFN had “retained the flooded Reserve lands.” A declaration would therefore serve no purpose. Canada claimed a defence of laches, but this defence does not apply as the trial record revealed a singular failure of Canadian government departments to communicate with the members of the LSFN. Similarly, the decisions made regarding the cutting of timber on the foreshore, the use of the unemployed men as a relief project, and its later abandonment were events that also occurred with little or no communication with the LSFN. Lastly, the negotiation of a payment to the LSFN was done in 1943 and accepted by Canada with no evidence that the LSFN was ever informed of the structure of the settlement, or its amount.

It is inexplicable in the evidence as to why Canada took no steps either at the time of the first flooding or subsequently to legally authorize the expropriation through flooding of these Reserve lands. Moreover, no compensation was paid to LSFN relating to the flooded lands or consequent damages suffered until November 17, 1943, which was not an appropriate amount and was in breach of Canada’s fiduciary duty to LSFN. Canada defended the main action and commenced third party claims against both Ontario and Manitoba for contribution and indemnity, pursuant to the terms of the Lac Seul Conservation Act (Canada) and An Act Respecting Lac Seul Storage (Ontario). Where the third parties have no fiduciary duty to the beneficiary, the defendant cannot apportion its liability for equitable compensation to them. Canada is not being asked to pay more than its share of the losses as it is solely responsible for them.

Brown v Canada (AG), 2018 ONSC 3429

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The Settlement Agreement, other than the legal fees provision, is approved. The $75 million legal fees provision is excessive, unreasonable and is not approved. Class counsel in Brown have agreed to de-link the legal fees provision from the rest of the Settlement Agreement. The Court should be advised when a revised section 11.01 has been agreed to by the parties.

(This is the third of three consecutive Wiyasiwewin Mikiwahp Native Law Centre Case Watch Blog posts regarding the Sixties Scoop Class Action judgements.)

The Sixties Scoop has been nationally acknowledged as a “dark and painful chapter in Canada’s history”, prompting twenty-three actions across the country. The Ontario action, Brown v Canada, was the most advanced. After nine years of litigation, it was Brown that established Canada’s liability in tort to the Sixties Scoop survivors in Ontario. Canada agreed to settle Brown but only if the other actions were included in one nation-wide settlement.

Justice Michel Shore of the Federal Court mediated the national settlement. The parties reached an agreement in principle on August 30, 2017. The national settlement agreement (“the Settlement Agreement”) was formally executed on November 30, 2017. As part of the national settlement, the other actions were consolidated into an omnibus Federal Court action, referred to as the Riddle action. On May 11, 2018 Justice Shore approved the Settlement Agreement for the purposes of the Riddle action as he was satisfied that it was fair, reasonable and in the best interests of the class members. The Settlement Agreement is before this Court for a similar approval in the context of the Brown action. It is clear from the language in the Agreement that the approval of both courts is required and if any part of the Settlement Agreement is declined, then the Agreement will not take effect and Justice Shore’s approval order in Riddle would be rendered null and void.

This Court had two concerns, however, after reviewing the Settlement Agreement. The first concern was the reasonableness of the $25,000 to $50,000 payment as damages for the loss of one’s Indigenous cultural identity given the harm that was sustained by the class members. The Court was satisfied after reviewing all the evidence and potential pitfalls given the risks of further litigation, that the payment, although modest for the loss of one’s Indigenous cultural identity, was ultimately fair, reasonable and should be approved. The second concern involved the $75 million payment to class counsel for legal fees. The Court viewed the $75 million for legal fees as excessive, unreasonable and was not approved. The focus is the global payment of $75 million in legal fees and not the internal divisions agreed to by class counsel.

The two most important factors in determining the reasonableness of legal fees are risk incurred and results achieved. It is the risk incurred that “most justifies” a premium in class proceedings and is primarily the risk of non-payment. In a case where a class action has been settled with a minimal investment of time or effort, the risk of non-payment causing “personal consequences” to class counsel is relatively insignificant. In a case where the settlement has been achieved after many years of effort with an enormous investment of time and money, the risk of non-payment causing “personal consequences” to class counsel can be significant. Windfalls should be avoided because class action litigation is not a lottery and the CPA was not enacted to make lawyers wealthy.

The percentage of the fund approach that bears no relation to the significance of the risk incurred should not be used in a mega-fund settlement. In Cannon, the Court embraced the percentage of the fund approach because almost all of the settlements were under $40 million. The Cannon percentage of the fund approach remains viable but should be limited to settlement amounts that are common-place, that is, under $50 million. Cannon should never be used in the mega-fund case where the settlement or judgment is more than $100 million. If there is evidence before the Court that the requested legal fees are excessive, the class action judge should examine the risk incurred to help decide whether the amount being requested by class counsel is indeed fair and reasonable.

The risk incurred by class counsel in Brown was, in a word, enormous. Bluntly put, it was as close a case of class counsel “betting the firm” as had been seen. The nation-wide settlement with Canada for some 23 actions, was fuelled in large part by what was achieved in the Brown action. It was therefore beyond dispute for the Court that class counsel in Brown deserve a significant premium in the calculation of their legal fees. Compared to Brown, the risks incurred by class counsel in Riddle are at the opposite end of the spectrum and were not significant. The evidence strongly suggested opportunistic filings and that the risks incurred by the Riddle class counsel in their respective actions did not justify a Cannon-type percentage of the fund approach.

Because the $75 million legal fees provision is not approved, the rest of the Settlement Agreement cannot take effect unless the legal fees provision is de-linked from the other settlement provisions that have been approved. Class counsel in Brown have agreed to de-link the $75 million fees provision from the rest of the Settlement Agreement in the interests of their class members. Class counsel in Riddle have not yet agreed to any such de-linking. The Settlement Agreement has gone back to the negotiating table with the focus being the $75 million legal fees provision, at least for class counsel in Brown. The Court commented that it would be beyond tragic if the Sixties Scoop Settlement Agreement was derailed or delayed because of an unseemly squabble among class counsel over legal fees.