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

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Reply

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

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

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

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

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

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

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

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

R v Kowtak, 2019 NUCJ 03

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Reply

Appeal allowed. The Justice of the Peace is required to consider Gladue factors in crafting an appropriate sentence. This was an error in law that justified an appellate intervention. A conditional discharge is a fit sentence for the appellant.

Indigenous Law Centre
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The appellant was at home, and while intoxicated and arguing with her spouse, assaulted her 15-year-old-daughter who attempted to intervene. The accused plead guilty and received a suspended sentence with nine months probation and a $100 victim fine surcharge. This is an appeal of that sentence on the grounds that the Justice of the Peace failed to consider Gladue factors, made impermissible statements about the accused, and deferred to the Crown’s position as presumptively reasonable.

It was determined in this appeal that the sentencing Justice of the Peace made an “impermissible speculation” about the accused’s lack of previous criminal record (R v Morrissey, 22 OR (3d) 514). The presumptive reasonableness of the Crown’s position was reviewed, and it was decided that the Justice of the Peace accepted the recommendation without considering the Defence recommendation. Any official deciding on an appropriate sentence must hear and consider both positions before deciding on a sentence. Further, there was no consideration of whether a conditional discharge would be appropriate, and this impacted the sentence. After considering these factors, and the role and value of Community Justices of the Peace, it was determined that the Justice of the Peace made a significant error in law as well as errors in the principle that affected the sentence in the case.

In deciding the sentence, the circumstances of the offender, and the applicable sentencing principles, including aggravating and mitigating factors, were considered. The Court followed s 718.1, which requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. The charge of assault is statutorily aggravated under ss 718.2(a)(ii.1) and (iii) because it was committed on a person under the age of 18, to whom the appellant was in a position of authority, as her mother. The mitigating factors of the case included the fact that the appellant demonstrated remorse by pleading guilty early on and stated she was sorry for what she had done; she was 35 with no prior record; her future employment would be put at risk with a criminal record; the assault was relatively minor and no injuries resulted; as well the Gladue factors of overcrowding and victimization of Indigenous offenders were also taken into account.

The Court determined that it would be in the best interests of the community of Rankin Inlet to see that a history of employment and good behaviour be given substantial weight, as this is a guilty plea to a single, one-time breach of the law. It was determined that the Inuk first offender should be given a chance to show that it was an isolated incident from which she learned an important lesson, and also to avoid a criminal record which could significantly impact her ability to find future employment. The appeal is allowed and she is sentenced to a conditional discharge which will not result in a criminal record. This appeal was held after the Supreme Court of Canada declared victim fine surcharges unconstitutional with immediate effect, therefore, the appellant shall have the victim fine surcharge removed from her sentence (R v Boudreault, 2018 SCC 58).

R v Overby, 2019 MBQB 102

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Reply

Due to the violent nature of the offence and lack of mitigating factors, the Indigenous offender, convicted of second degree murder, is sentenced to life in prison with no possibility of parole for 15 years.

Indigenous Law Centre
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Mr. Overby, an Indigenous man, has been found guilty of second-degree murder for the brutal killing of Christine Wood, a young Indigenous woman he had met on a dating app the same day he had murdered her. After engaging in sexual relations, he proceeded to murder her in the basement of his house. After the killing, he attempted to cover up the murder, until Ms. Wood’s body was found months later by chance.

The Gladue report submitted for Mr. Overby does not highlight any mitigating factors for the offender. He had an unremarkable childhood and the violence committed was considered “out of character”. The Court does not accept his version of events, including having no memory of what occurred.

In considering an appropriate parole ineligibility period, the Court must keep in mind that it must not be less than 10 years or more than 25 years according to s 745(b) of the Criminal Code. Balancing various caselaw with the sentencing principles, the aggravating factors that surrounded Ms. Wood’s unfortunate and violent death, required a more stringent parole ineligibility period (R v Shropshire, [1995] 4 SCR 227).

There were minimal mitigating factors other than the fact that alcohol was consumed by both parties and that Mr. Overby may have been depressed about his relationship situation. At the time of the offence, Mr. Overby had no criminal record at the age of 29 but his moral culpability in this case is very high. 15 years of parole ineligibility is deemed appropriate, but regardless, he remains under the supervision and control of correctional authorities for the rest of his life, including being subject to re-incarceration from parole should he breach any conditions or pose a threat to public safety.

R v Pijogge, 2019 NLSC 15

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An Indigenous offender has shown rehabilitative potential through community ties and strong family connections, however, incarceration is an appropriate sentence.

Indigenous Law Centre – CaseWatch Blog

The offender, while heavily intoxicated, had sexual intercourse with the victim, a close friend. Both the offender and victim were of Indigenous descent. The offence happened in her own home while she was also heavily intoxicated and unconscious. The offender was convicted of sexual assault contrary to section 271(1)(a) of the Criminal Code.

Balancing the sentencing principles with the Pre-Sentence Report and Gladue factors regarding the history of the offender, it was noted that he suffered sexual abuse at the hands of an unrelated male when he was a child, and also witnessed a suicide. Although he has never received counselling for these traumatic events, the offender enjoyed a relatively stable upbringing, with caring parents. He achieved his Grade 12 education, and generally maintained employment. The offender has the support of his family and a long-term partner, along with ties to his Indigenous community, which shows rehabilitative potential in addressing his issues with alcohol.

The presence of a criminal record is an aggravating factor on sentence. The commission of this offence showed an escalation in seriousness as compared to the other kinds of offences the accused committed in the past. Alcohol likely played a role in how the offence came to be committed, however, it may explain but does not excuse the behaviour.

The offence was at the serious end of the spectrum in regards of the gravity of conduct. Taking into account the above circumstances, with an emphasis on deterrence, the fit sentence is incarceration for 30 months, along with other conditions.

R v Gloade, 2019 NSPC 55

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Although a first offender, it is proportionate to the gravity of the fraudulent offences committed, that the Indigenous accused serve a custodial sentence and pay restitution and a fine in lieu of forfeiture.

Indigenous Law Centre – CaseWatch Blog

Ms. Gloade committed two serious criminal fraudulent offences against the Elizabeth Fry Society of Mainland Nova Scotia [“Society”] in her capacity as the Executive Director. The Society is a non-profit, charitable organization that engages with vulnerable women and girls to foster reintegration, rehabilitation, personal empowerment and addresses the root causes of criminalization. The organization is dependant, in part, on donations from the community in its effort to fulfill its mandate of providing programs that support some of society’s most vulnerable women.

Ms. Gloade committed the offences while she herself was in a vulnerable state, as her marriage was failing and she was emotionally and financially stressed. The first offender principle requires that the sentencing judge exhaust all other dispositions, before imposing a custodial disposition (R v Stein, [1974] OJ No 93). The first offender principle has been codified in sections 718 and 718.2 of the Criminal Code.

As well, the Court in this matter considered the “sad life” principle. There is an evidentiary basis for its consideration, including the Pre-Sentence Report, the Gladue Report and the sentencing proposal report arising from Ms. Gloade’s Sentencing Circle. This principle also involves an offender to demonstrate a genuine interest in rehabilitation, for example successfully engaging in counselling or treatment. Cases that consider this principle often involve offenders who are victims of sexual or physical abuse, or have experienced a horrific upbringing.

There appears to be a very low risk for Ms. Gloade to re-offend as she has and continues to take the necessary steps to address the underlying causes of her emotional and financial stresses. Although this Court recognizes that rehabilitation is an important objective in the sentencing calculus, it must not be over-emphasized, as there is a real pressing need in this case for a denunciatory sentence as well as one directed at both specific and general deterrence.

All the relevant purposes and principles of sentencing have been considered by the Court in this matter, including the aggravating and mitigating factors, the Gladue factors, and that the sentence must be proportionate to the gravity of Ms. Gloade’s crimes and her degree of responsibility for having committed them. Ordering both restitution and a fine in lieu of forfeiture fulfills the Parliamentary intention of “giving teeth” to the sentencing provisions. She is also sentenced to 60 days to be served at the Central Nova Scotia Correctional Facility with a significant period of probation. As well, a Prohibition Order under s 380.2 is ordered that Ms. Gloade not seek, obtain or continue any employment, or become or be a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person for a period of ten years.

 

R v CGJ, 2019 BCPC 252

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A custodial sentence, with a lengthy period of probation, is appropriate and proportionate for an Indigenous offender found guilty of sexually assault. Serving a conditional sentence would not endanger the safety of the community with the imposition of appropriate conditions.

Indigenous Law Centre – CaseWatch Blog

This matter involves the sentencing of an Indigenous man who was found guilty of the offence of sexual interference, contrary to s 151 of the Criminal Code [“CC”]. At the time of the offence he was 18 years of age and the victim was 13 years of age and they both attended the same secondary school.

Sexual interference is a hybrid offence; the Crown may elect to proceed by way of indictment or summary conviction. The Crown proceeded by way of summary conviction, under s 151(b) CC. The convicted is therefore liable upon sentencing to a term of imprisonment of not more than two years less a day, and to a mandatory minimum sentence of imprisonment for a term of 90 days. The convicted has no prior criminal record and is now a first-time offender. He challenges the constitutionality of the mandatory minimum sentence of 90 days imprisonment provided for in s 151(b) CC, as being a violation of his s 12 Charter right of not being subjected to cruel and unusual treatment or punishment.

It was recently held that the mandatory minimum of a one-year term of imprisonment under s 151(a) CC, where the Crown can proceed by way of indictment, violates s 12 of the Charter and cannot not be saved under s 1 (R v Scofield, 2019 BCCA 3). The defence submits part of the individualized sentencing process this Court should consider is a suspended sentence pursuant to s 731(1)(a) CC, with a lengthy period of probation. Alternatively, if imprisonment is necessary, it should be served in the community under a conditional sentence order pursuant to s 742.1 CC, then followed by a significant period of probation. The existence of the s 151(b) CC statutorily prevents this Court from imposing either of the suggested sentences, until it has concluded that the mandatory minimum sentence violates s 12 of the Charter and cannot be saved under s 1. If the Court comes to that conclusion, it can then apply the available remedy within its jurisdiction.

It was agreed among the parties that if this Court found that the appropriate sentence is 90 days or higher, it can impose the sentence without addressing the constitutional question, as it would be unnecessary to do so (R v Lloyd, [2016] 1 SCR 130). If this Court, however, concludes that the proportionate sentence is below 90 days, then it should assess whether the 90-day mandatory minimum sentence is grossly disproportionate personally for the convicted.

Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the offender (R v Shoker, 2006 SCC 44; R v Angelillo, 2006 SCC 55). Section 718.2(e) does not permit the court to impose an unfit sentence (R v Jackson, 2012 ABCA 154). In deciding whether an Indigenous offender should be incarcerated, a judge must use all available information before the court about an offender to determine whether restorative justice should be given more weight than traditional objectives of sentencing, such as deterrence and denunciation.

In sentencing an Indigenous offender, the sentencing judge must carry out a three-step process: 1) examine the unique systemic or background factors common to Indigenous people as a group; 2) consider the personal circumstances of the offender which resulted in the offender committing the crime for which that offender is before the court; and 3) strive to arrive at a sentence that is informed, just, and appropriate in the circumstances, having regard to the information obtained (R v Gladue, [1999] 2 CNLR 252).

There is no burden on an Indigenous offender to establish a causal link between Gladue factors and the commission of the offences (R v Eustache, 2014 BCCA 337). Although the accused bears the onus of establishing mitigating factors on a balance of probabilities, it can be difficult for Indigenous offenders to establish direct causal links between the circumstances and the offending behaviour (R v Ipeelee, [2012] 2 CNLR 218). While an Indigenous offender need not establish a direct causal link, the Gladue factors nonetheless need to be tied to the offender and the offence in some way (R v DB, 2013 ONCA 691).

The conditional sentence order will permit the convicted to continue to receive the significant benefit of his cultural engagement, the support of his family and his community, be able to continue his employment, and at the same time to receive sex offender treatment. The Accused is sentenced to a five-month conditional sentence order and 30 months of probation. Subsequent to this determination, there will be a pending consideration by this Court of the s 12 Charter arguments.

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

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

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

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

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

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

R v Balfour and Young, 2019 MBQB 167

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Ms. Balfour’s and Mr. Young’s s 11(e) Charter rights were violated. A stay of proceedings is moot, but an order of costs is just. Consideration should be given to an independent review of the system affecting in-custody accused on remand in northern Manitoba.

Indigenous Law Centre – CaseWatch Blog

Ms. Balfour and Mr. Young are residents of different northern Manitoba Indigenous communities. Each were arrested and charged with Criminal Code offences. Their cases are completely unrelated except they both experienced difficulty having timely bail applications. Each had made an application for a declaration that their ss 7, 9, 11(e) and 12 rights as guaranteed by the Charter of Rights and Freedoms had been violated. Each sought a judicial stay of proceedings of their charges, and costs.

The focus of the Court’s analysis was on s 11(e) of the Charter, the right of a person charged with an offence not to be denied reasonable bail, as it is broad enough to encompass the specific elements of this matter in a holistic manner. The Court found that Ms. Balfour and Mr. Young rights were violated and the Crown did not seek justification for the violation under s 1 of the Charter.

Remand custody is substantially unlike being a sentenced prisoner in a correctional facility or penitentiary. Particularly in northern Manitoba, being in remand custody awaiting some court process or trial is physically and emotionally stressful for many reasons, especially for first offenders and young offenders. An in-custody remand cannot be routine or perfunctory, the remand must be for a good reason. Lack of court resources or time is not a good or valid reason (R v Reilly, 2019 ABCA 212). Such remands cannot be done consecutively with the effect of sidestepping the accused’s right to object or consent to longer delays. This also applies to remands for less than three clear days, where an accused need not consent.

Northern Manitoba residents who are held waiting for bail are moved repeatedly, often driving great distances while locked in crammed vans and in foul weather. It is unsafe for Sheriffs and accused alike, and adds to the chaos of the northern justice system as personal or video appearances are unreliable. Many accused do not stay in remand in the north but are transferred to central or southern Manitoba. Almost all are away from their home community such that personal visits with their counsel, family, children or supports are few and far between, if at all. Telephone communication to lawyers or families is difficult, infrequent and expensive. Accused are housed with all manner of inmates from a mix of backgrounds and temperaments; some of whom are violent, addicted to drugs or alcohol, or have mental health issues. Lawyers deposed that many clients have lost their employment, or have been attacked or threatened, while in remand waiting for bail hearings. Some accused consider pleading guilty just to get out of remand custody.

The remedy for a stay of proceedings is moot. An appropriate remedy under s 24(1) of the Charter, may generally include a stay of proceedings, a reduction of a sentence, or costs. At a minimum, judicial condemnation is required and the Court finds the bail practices in play in northern Manitoba should shock the conscience of any reasonable person. The violations of Ms. Balfour’s and Mr. Young’s Charter rights were directly related to long-standing and glaring systemic issues. Although the breaches were predictable, the issue of processing the potential release of an arrested person is vital. A bail system must be designed to ensure no person’s liberty is improperly usurped. This is of special concern, as many of the communities in the Thompson judicial area of northern Manitoba are Indigenous and many of those citizens suffer the effects of colonization (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

No other remedy than costs remains available. In the end, Ms. Balfour and Mr. Young will receive nothing for the breaches of their individual Charter rights, but their lawyers will be reimbursed their expenses and receive partial compensation for their efforts.

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

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

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

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

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

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

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

R v Big River First Nation, 2019 SKCA 117

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Appeal dismissed. Big River First Nation is a “person” for the purpose of sentencing for a minimum fine of $100,000 after it plead guilty to a summary conviction offence contrary to ss 238(1) and 272(1)(a) of the Canadian Environmental Protection Act.

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Indigenous CaseWatch Blog

The appellant, Big River First Nation [BRFN], pled guilty to the summary conviction offence of unlawfully failing to comply with an Environmental Protection Compliance Order, contrary to subsection 238(1) and 272(1)(a) of the Canadian Environmental Protection Act [“CEPA”]. The BRFN is a “band” within the meaning of the Indian Act. The sentencing judge found that the BRFN is an “individual” within the meaning of s 272 of CEPA and imposed a $10,000 fine (R v Big River First Nation, 2017 SKPC 16). The Crown appealed and the appeal judge found that the BRFN is a “person” within the meaning of s 272 of CEPA and substituted a sentence of a $100,000 fine (R v Big River First Nation, 2018 SKQB 109). The BRFN in this matter appeals this decision on the grounds that the appeal judge erred in law by finding that BRFN is a “person” within the meaning of s 272 of CEPA. As well, the appeal judge failed to even consider s 273 of CEPA, where the court may impose a fine that is less than the minimum amount if it is satisfied that the minimum fine would cause undue financial hardship.

The distinction as to whether BRFN should be classified as an “individual” or a “person” for the purpose of sentencing is important because of the fine minimums in s 272 of CEPA. An “individual” is subject to a $5,000 minimum sentence, while a “person” is subject to a $100,000 minimum sentence. The sentencing judge held that an Indian Act band is a sovereign nation, not a natural person or a corporation. It was his view that only a corporation can be a legal person and that a band must accordingly be an individual. He concluded that the minimum fine of $5,000 was unreasonable in light of the seriousness of the offence, but that a larger fine would place unnecessary hardship on a community such as BRFN and would damage innocent BRFN members. He imposed a fine of $10,000, noting that any destruction of the BRFN land base and water will be devastating for future generations.

The appeal judge, however, concluded that the respondent was a “person” within the meaning of s 272 of CEPA and fined them $100,000. The term “public body” is well known to the law. There is support for the proposition that the council of a First Nation is a public body (Westbank First Nation v British Columbia Hydro and Power Authority, [1999] 3 SCR 134). As for the meaning of “individual”, there is no definition of that term in CEPA or the Interpretation Act. It has, of course, been interpreted in the context of many statutes and, when used as a noun, has generally been interpreted so as to exclude anything other than a natural person (R v Carroll, 2016 ONCJ 214). There is authority for the proposition that a First Nation may fall within the scope of the term “person” (PSAC v Francis, [1982] 2 SCR 72). It was also determined that an Indian Act Band is a juridical person and is a unique, enduring, and self-governed entity that has distinct rights and obligations (Montana Band v Canada (TD), [1998] 2 FC 3). That supports the conclusion that “person” in s 272(1) includes “public bodies” that are neither bodies corporate nor individuals.

CEPA applies to reserve lands. It also contains mechanisms designed to enable the development of regulations and other measures to bridge the regulatory gap between non-reserve lands, where provincial and municipal laws apply, and reserve lands, where they do not. Those mechanisms provide for the participation of and exercise of jurisdiction by Indigenous governments and the incorporation of Indigenous knowledge. The purpose of sentencing for offences under CEPA is to contribute to respect for the law that is there to protect the environment and human health through the imposition of just sanctions. These objectives are for deterrence and to denounce unlawful conduct that damages or creates a risk of damage to the environment or human health. It reinforces the “polluter pays” principle by ensuring that offenders are held responsible for effective clean-up and environmental restoration.

BRFN submitted it should have the benefit of s 273 if BRFN is found a “person”. From the evidence submitted, the Court could not reasonably support a finding that the BRFN would suffer undue financial hardship from the minimum $100,000 fine.