Tag Archives: Aboriginal and Treaty Rights

Iskatewizaagegan No 39 Independent First Nation v Winnipeg (City), 2021 ONSC 1209

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Ontario’s motion is dismissed. Ontario moved for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim claiming that it is plain and obvious that Iskatewizaagegan pleading disclosed no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. The Court finds that it is not plain and obvious that Iskatewizaagegan does not have a tenable cause of action based on a sui generis fiduciary duty or an ad hoc fiduciary duty.

Indigenous Law Centre CaseWatch Blog

The City of Winnipeg, Manitoba [“Winnipeg”] extracts its drinking water from Shoal Lake, which is located predominantly in Ontario, but also Manitoba. Shoal Lake has been extracted for this purpose for over 100 years but has not paid anything to the Plaintiff, the Iskatewizaagegan No. 39 Independent First Nation [“Iskatewizaagegan”]. Winnipeg is being sued by Iskatewizaagegan for compensation for injurious affection, with damages claimed at $500 million. Iskatewizaagegan also sues the Province of Ontario, for breach of fiduciary duty.

Iskatewizaagegan pleads two distinct theories of Crown liability for breach of fiduciary duty: 1) a sui generis fiduciary duty based on the relationship between Aboriginal peoples and the Crown; and 2) an ad hoc fiduciary duty. It relies on a 1913 Order in Council along with antecedent Royal Proclamations and Treaties and sequent legislation enacted by Ontario.

In this matter, Ontario moves for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim without leave to amend and to dismiss the action for failing to disclose a reasonable cause of action. Ontario states that it is plain and obvious that Iskatewizaagegan pleading discloses no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. Ontario’s action is dismissed.

The people of Iskatewizaagegan are Anishinaabe. They are a distinct Aboriginal society, a recognized Band under the Indian Act, and an Aboriginal people within the meaning of s 35 of the Constitution Act, 1982. Shoal Lake is a part of the cultural identity of Iskatewizaagegan and its people. Since time immemorial, the Anishinaabe have used the waters of Shoal Lake and the surrounding land for survival. Iskatewizaagegan’s culture is coextensive with Shoal Lake and the surrounding land. The transmission of Anishinaabe teachings, traditions, and values to future generations takes place and continues to take place at Shoal Lake.

Common law real property concepts do not apply to Aboriginal lands or to reserves. Aboriginal title and interest in reserves are communal sui generis interests in land that are rights of use and occupation that are distinct from common law proprietary interests. An Aboriginal interest in land will generally have an important cultural component that reflects the relationship between an Aboriginal community and the land. The Aboriginal interest in land is a sui generis independent beneficial legal ownership interest that burdens the Crown’s underlying title, which is not a beneficial ownership interest and which may rather give rise to a fiduciary duty on the part of the Crown.

Iskatewizaagegan is a beneficiary of the Royal Proclamation of 1763, and was ratified by assembled Indigenous Nations by the Treaty of Niagara 1764. In the summer of 1764, representatives of the Crown and approximately 24 First Nations, met at Niagara. The lengthy discussions lead to the Treaty of Niagara 1764, which was recorded in wampum. The Crown does not recognize the Treaty of Niagara 1764 as substantively altering the legal effects of the Royal Proclamation of 1763. In contrast, First Nations assert that the Royal Proclamation of 1763 must be understood together with the Treaty of Niagara 1764 and so understood the Royal Proclamation of 1763 constitutes a recognition of Indigenous sovereignty.

In 1873, Iskatewizaagegan entered into Treaty No 3 with the Crown. The reserve of Iskatewizaagegan No. 39 adjacent to Shoal Lake was established pursuant to Treaty No 3. Treaty No 3 is a pre-confederation treaty on behalf of the Dominion of Canada and Chiefs of the Ojibway. The Ojibway yielded ownership of their territory, except for certain lands reserved to them. In return, the Ojibway received annuity payments, goods, and the right to harvest the non-reserve lands surrendered by them until such time as they were taken up for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada. Although Treaty No 3 was negotiated with the Crown in right of Canada, the promises made in Treaty No 3 are promises of the Crown. The federal Government and Ontario are responsible for fulfilling the promises of Treaty No 3 when acting within the division of powers under the Constitution Act, 1867.

In exercising its jurisdiction over Treaty No 3 lands, Ontario is bound by the duties attendant on the Crown and it must exercise its powers in conformity with the honour of the Crown and the fiduciary duties that lie on the Crown in dealing with Aboriginal interests. The honour of the Crown has been a principle animating Crown conduct since at least the Royal Proclamation of 1763, through which the British asserted sovereignty over what is now Canada and assumed de facto control over land and resources previously in the control of Aboriginal peoples. The categorical fiduciary duty owed by the Crown in the Aboriginal context is sui generis. From the honour of the Crown and the Federal Government’s exclusive jurisdiction in respect of Indians under s 91(24) of the Constitution Act, 1867, the Crown has the responsibility to act in a fiduciary capacity with respect to Aboriginal peoples.

Snaw-Naw-As First Nation v Canada (AG), 2021 BCCA 89

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Application dismissed. Cowichan Tribes does not meet the criteria for a public interest intervention. It does not have a sufficiently broad representative base regardless of its size as a single First Nation, to be a public interest intervenor in the Snaw-Naw-As First Nation’s appeal regarding the status of a railway that runs through reserve lands. Cowichan’s similar litigation to the underlying appeal can be adequately presented by the appellant.

Indigenous Law Centre
Indigenous CaseWatch Blog

Cowichan Tribes [“Cowichan”] seeks leave to intervene an appeal by the Snaw-Naw-As First Nation [“SFN”] concerning the status of a railway right of way that runs through the SFN reserve. The dispute underlying the appeal concerns the E&N Railway on Vancouver Island [“Railway”] and the grant of a right of way through reserve lands. Use and operations of the Railway changed and declined over time, eventually being contracted out for some freight use.

The Railway, now owned and operated by the defendant Island Corridor Foundation [“ICF”], transects 1.3 km of the plaintiff First Nation’s reserve lands in Nanoose. This strip of land is subject to a right of way in favour of ICF. SFN sought a declaration that its lands subject to the right of way were no longer being used for railway operations and purposes, and a corresponding declaration that the lands revert to the administration and control of Canada for the use and benefit of SFN as part of the SFN reserve. SFN asserted that the railway corridor was not being used for railway purposes, had been abandoned, and there was no business case for the ICF to restore and operate it. The trial judge found that there had been no formal abandonment of the railway, as ICF had not abandoned efforts to fulfill its mandate despite lack of funds, and was maintaining the railway corridor to the extent possible. In the appeal, the SFN alleges errors of law by the trial judge.

In this matter, Cowichan, a band within the meaning of the Indian Act with reserve lands in and around the Cowichan Valley on Vancouver Island, is a large First Nation with over 5,000 members. Similar to SFN, the Railway passes through Cowichan’s reserve lands. Cowichan is also a member of ICF. Cowichan commenced litigation in the Supreme Court of British Columbia, making similar claims to SFN. Cowichan did not advance its action, as it was waiting for the outcome of the SFN litigation. Cowichan seeks to intervene on a public interest basis to make submissions on the principles that should guide the court’s interpretation of the interests at stake in light of the character of the right of way as Indigenous lands.

Section 10(2)(a) of the Court of Appeal Act provides that a justice may make an order granting leave to intervene as an order incidental to an appeal. A justice’s discretion to grant intervenor status is governed by the following principles: 1) the applicant must have a direct interest in the matter; or 2) must have a public interest in a public law issue in question; and 3) can make a valuable contribution or bring a different perspective to a consideration of the issues on appeal that differs from that advanced by the parties (Halalt First Nation v British Columbia (Environment), 2012 BCCA 191).

Cowichan does not claim to have a direct interest in this appeal and acknowledges the importance of the decision as precedential value in its own case. As a proposed public interest intervenor, it must have a distinctive perspective on the interpretation of the right of way that would be of assistance to the court (Equustek Solutions). While an intervenor’s submission may support one party’s position, the intervenor’s role is not to support the position of a party but to make principled submissions on pertinent points of law (Araya v Nevsun Resources Ltd, 2017 BCCA 402). Repetition is to be avoided and the appeal must remain focused on the issues raised by the parties (Ahousaht Indian Band and Nation v Canada (AG), 2012 BCCA 330; British Columbia Civil Liberties Association (AG), 2018 BCCA 282).

In consenting to Cowichan’s application, SFN submits that the trial decision did not engage the Indigenous perspective, and hearing from another First Nation at the appellate level would assist the court to understand the nuance and contours of the Indigenous perspective. Although Cowichan seeks only public interest intervention, however, its own interest in this litigation distorts the basis for this application. In assessing a proposed public interest intervenor, the court’s focus is not on the interest of the intervenor but on the court’s interest in ensuring that important points of view are not overlooked. The Court is not satisfied that Cowichan’s distinct perspective about the principles of interpretation of historical takings will be of assistance.

The broader interpretive principles can be adequately presented by SFN and Cowichan’s proposed submissions are largely duplicative of those of SFN. The focus will be the interpretation of the limiting conditions of the right of way in the context of the sui generis nature of reserve lands. In all of these circumstances, Cowichan does not meet the criteria for public interest intervention and the application is dismissed.

Baffinland Iron Mines Corporation v Inuavak et al, 2021 NUCJ 11

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Reply

Interlocutory injunction granted. The RCMP have been authorized to enforce an injunction against community protestors, including removing and detaining to the extent necessary, persons who have knowledge of the injunction, and are obstructing or impeding access to the mine site. The mining corporation has approval for its operations and has complied with the necessary requirements under The Nunavut Land Claims Agreement and with any regulatory and legislative requirements.

Indigenous Law Centre
Indigenous CaseWatch Blog

Baffinland Iron Mines Corporation [“BIM”] is granted an injunction prohibiting the Defendants, and others, from blockading or obstructing its mining operations at the Mary River site on northern Baffin Island. To get to this mine site, it is a fly in and out with an airstrip. Iron ore is mined and crushed at the mine site, and then trucked to where it can be loaded on to ships at Milne Port, and shipped out during open water season. The mine site and the port are connected by a road approximately 100 km long. The airstrip and accommodation for most of the employees is at the mine site but with some at Milne Port. Shipping of iron ore can occur only during the open water season. However, during the rest of the year iron ore is still trucked to Milne Port and is stockpiled to await the shipping season.

BIM has applied to significantly expand its operations at the mine. It is unknown if the application will be approved or not. The current approvals for the mine are controversial and there are strongly held views and opinions on all sides. The north Baffin communities of Pond Inlet, Arctic Bay, Clyde River, Igloolik, and Sanirajuk are the communities closest to and most affected by the mining operations. Residents from the local communities set up protests at the BIM site. Although these protests were not large, a camp was set up on the runway and road, approximately 3-4 km from the mine site. Although there were approximately 5 protesters at the mine site and 2 on the road, it prevented the plane to land normally at the airstrip and iron ore could not be trucked from the mine site to the port. The protest shut down mining operations and stopped the movement of people and supplies to and from the mine.

Counsel for three of the Defendants appeared in court. At that time the concern of the was the 700 employees at the project site and if they were unable to leave due to the blockade on the airstrip. The Defendants were not opposed to the departure of the employees that were on site. An interim order was issued to ensure that occurred. A short time later the Defendants left the project site and carried on to their respective communities. However, the Plaintiff maintained its application for an interlocutory injunction and brought an action against the Defendants for trespass, unlawful interference with economic interests, and mischief.

The Defendants asserted their Aboriginal rights pursuant to s 35 of the Constitution Act, 1982. They submit that injunctive relief is no longer required as the Defendants have left the project site. The test for injunctive relief have three factors that the court must consider: 1) is there a serious issue to be tried; 2) will irreparable harm result if the relief is not granted; and 3) where does the balance of convenience lie (RJR MacDonald Inc v Canada (AG), [1994] 1 SCR 311).

The Plaintiff’s legal action is a serious issue to be tried. The Defendants’ argument that the need for injunctive relief has lapsed because the protesters have left the project site. While this may be true, their counsel was not able to confirm that they have agreed to not return and continue the protest. As well, counsel is only for three Defendants of the seven protestors. The protest and its reasons have been the topic of discussion in the media. There may be more than one reason for the protest, and individual protesters are there for different reasons.

In response to the protest, Inuit leadership reached out to the Defendants to arrange meetings to reach a resolution. The Defendants have agreed to the meetings, but not much more is known at this junction. The business operations that are at risk continue as a going concern and the protesters’ concerns remain unresolved. Although the protesters may no longer be at the project site, their reasons for being there in the first place remain. As for the s 35 Aboriginal rights argument, asserted Aboriginal rights are rights that are asserted but not yet proven. This is not the Nunavut context. The Nunavut Land Claims Agreement [“NLCA”] is a modern treaty that encompasses the largest land claims settlement in Canada. The processes for resource development are set out in the Agreement. The Plaintiff has complied with the necessary requirements under the NLCA and any regulatory and legislative requirements.

The Plaintiff has loss of revenue because of the inability to transport iron ore from the mine site to the port. The court stated that the complete blockade of a lawful business strongly suggests irreparable harm for the purposes of an injunction (Hudson Bay Mining & Smelting Co Limited v Dumas et al, 2014 MBCA 6). The balance of convenience favours the granting of injunctive relief.

Interlake Reserves Tribal Council Inc et al v The Government of Manitoba, 2020 MBCA 126

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Reply

Motions made by the Manitoba Métis Federation and the Assembly of First Nations to intervene in an appeal were dismissed after the Court found that there was insufficient basis to grant the motions. Both parties failed to persuade the Court to find that their submission were useful and different from the immediate parties in a way that wouldn’t unnecessarily expand the appeal. The Manitoba Métis Federation also requested an expansion of time to file supporting documents, which was granted by the Court given its incidental nature.

Indigenous Law Centre – CaseWatch Blog

By way of background, the defendant, the Government of Manitoba, has appealed an order granting interlocutory injunctive relief preventing it from carrying out further work on a road in order to take action on a proposed flood management system in the Interlake region of Manitoba. This interlocutory injunction relief comes as a response to a motion by the plaintiffs, which consist of the Interlake Reserves Tribal council, as well as several First Nations within the area, who alleged that this development of the land would be an infringement on the exercise of their Indigenous and treaty rights. The defendant denies this infringement of rights. The hearing of this appeal is set for February 2021.

The Manitoba Métis Federation [“MMF”] and the Assembly of First Nations [“AFN”] seek to intervene in this appeal. As well, the MMF also requests an extension of time to file its supporting affidavit and memorandum of submissions on the intervention motion. The plaintiffs consent to the motions, while the defendant is opposed.

The Court dealt first with the MMF’s motion to extend time. The MMF filed its motion to intervene within 30 days after the defendant filed its notice of appeal. However, counsel for the MMF failed to file the supporting affidavit and memorandum of submissions at least four days before the initial hearing date and because of this, the motion to intervene was not done in a timely manner. In assessing whether or not an extension of time should be granted to the MMF, the Court considered that the delay is brief, and does not create prejudice to any party. As a result, the Court required that the extension of time to the MMF be granted.

The relevant case law states that an intervener should have either a direct interest in the outcome of the appeal or a special expertise or unique perspective relating to the subject matter (R v Morgentaler, [1993] 1 SCR 462). In applying this case law with the specifics of AFN’s motion to intervene, the Court found that much of the AFN’s submissions duplicated those of the plaintiffs or were not relevant to the issues before the Court. Given this, the Court was not persuaded that the AFN would provide submissions useful and different from those of the plaintiffs and dismissed the AFN’s intervention motion. Similarly, with regard to the MMF’s motion to intervene, the Court was not persuaded that the MMF’s submissions were useful or different from the immediate parties and would unnecessarily expand the appeal. Further, the Count also stated that the MMF did not have a direct interest in the outcome of the appeal, as language used by the MMF was overly vague and inconsistent in stating their direct interest in the outcome of the appeal. As a result, the Court also dismissed the MMF’s intervention motion.

Mosquito Grizzly Bear’s Head Lean Man First Nation v Her Majesty the Queen in Right of Canada, 2021 SCTC 1

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Reply

As a result of breach of Crown fiduciary duty arising in a 1905 surrender of lands, compensation due to the Mosquito Grizzly Bear’s Head Lean Man First Nation, totalled a combined amount of $126,933,972.00. The Crown took a surrender vote in contravention of the statutory requirement that permitted only members of the Grizzly Bear’s Head and Lean Man Bands to vote, and later accepted and acted on the surrender. Pursuant to Treaty obligations, Canada admitted that it breached its pre-surrender fiduciary obligation, which rendered the 1905 surrender of lands invalid.

Indigenous Law Centre CaseWatch Blog

This matter is the determination of the compensation due to the Mosquito Grizzly Bear’s Head Lean Man First Nation [“Claimant”], as a result of breaches of fiduciary duty of the Crown [“Respondent”] in the surrender of land from Indian Reserve No. 110/111 [“Lands”]. The reserve land of the Claimant totals 46,208 acres. The Claimant is of Assiniboine, Nakoda and Stony descent. The Claimant’s ancestors adhered to Treaty 6 and Treaty 4. The Claimant is also a “band” within the meaning of the term in the Indian Act, and was established by an amalgamation of three bands.

Pursuant to Treaty obligations, the Crown set aside land for the benefit of Grizzly Bear’s Head and Lean Man Bands with the Lands. In 1905, the Crown took a surrender of a 14,670-acre parcel. The surrendered land comprised approximately 2/3 of the reserve. The Claimant is, for the purpose of this proceeding, the successor in interest to any cause of action that may arise against the Crown as a result of the surrender.

Awards of compensation where a claim is found valid are governed by paragraph 20(1)(c) of the Specific Claims Tribunal Act [“SCTA”], which provides that the Tribunal is to award compensation “that it considers just, based on the principles of compensation applied by the courts”. Equitable compensation is a remedy where a breach of fiduciary duty is found and applies in the context of a breach of fiduciary duty with respect to a surrender of reserve land (Guerin v R, [1984] 2 SCR 335 [“Guerin”]). Where reserve land is affected by an invalid surrender, section 20(1)(g) of the SCTA requires that the Tribunal award compensation equal to the current unimproved market value [“CUMV”] of the subject lands. The Tribunal must also, under section 20(1)(h) of the SCTA, award compensation equal to the value of the loss of use [“LOU”] of the lands, brought forward to the present value of the loss.

Although the agreement did not describe the events and actions that breached Crown fiduciary duty, the evidence introduced in the compensation phase of the proceeding reveals that the Crown took a surrender vote in contravention of the statutory requirement that permitted only members of the Grizzly Bear’s Head and Lean Man Bands to vote, and later accepted and acted on the surrender. This was, from the outset, a breach of the duty of ordinary prudence. This breach occurred within a Treaty relationship, with respect to a Treaty reserve, and the breach led directly to the permanent alienation of Treaty reserve land from the Claimant.

The evidence was for the most part comprised of filed expert reports, their respective reliance documents, and the testimony of the authors on direct and cross examination. The expert reports addressed the historical context of the breach, the CUMV of the Claim Lands, LOU models describing foregone revenues from the Claim Lands from 1905 to present, and present valuation of foregone revenues.

Equitable compensation “attempts to restore to the plaintiff what has been lost as a result of the breach; i.e. the plaintiff’s lost opportunity” (Canson Enterprises Ltd v Boughton & Co, [1991] 3 SCR 534 [“Canson”]). The underlying policies that guide the assessment of equitable compensation in this claim include restitution (Guerin; Canson), reconciliation (SCTA), deterrence (Canson), fairness, and proportionality (Hodgkinson v Simms, [1994] 3 SCR 377). Equitable compensation is assessed at the time of trial, not the date of the breach. Therefore, the assessment is of the loss at present, with all losses represented by a single award. There is a common sense connection between the loss of use of the land and the loss of revenue that may have been paid into the Claimant’s coffers if the land had been leased out to farmers.

At all relevant times, the Indian Act applied to the Crown’s management of the Claimant’s funds. If the land had been surrendered for leasing, the reality would be that lease revenue would have been deposited in the Band Trust Account. The Tribunal adopted the Band Trust Account rate. Revenue from leasing would if in fact received be deposited in the Band Trust Account, and would earn interest at the rate set annually on such funds, compounded annually. The Tribunal determined CUMV of $15,500,000.00, effective September 21, 2017. The Tribunal assessed the present value of loss of use to December 31, 2019 at $111,433,972.00. This amount is net of the payments made by the Crown to the Claimant in respect of the Claim Lands from 1906 to 1956. The combined amount awarded for CUMV and LOU, subject to adjustment, is $126,933,972.00.

Bangloy v Canada (AG), 2021 FC 60

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Reply

Application dismissed. An Indigenous family alleged that their education benefits were denied as retaliation for previous complaints the family had lodged against Indigenous and Northern Affairs Canada, and for discrimination based on race, or national or ethnic origin.

Indigenous Law Centre CaseWatch Blog

Thirty years ago, Ms. Bangloy’s mother requested from Indigenous and Northern Affairs Canada’s [“INAC”] predecessor, Indian Affairs and Northern Development [“IAND”],  reimbursements of Ms. Bangloy’s tuition fees at a private school in British Columbia. The family argued that the costs were reimbursable under the terms of Treaty 11. IAND’s position was that education expenses could be claimed under the Indian Act, but only for children living on reserve, which Ms. Bangloy was not. The Court sided with IAND, finding that Treaty 11’s terms were confined to the geographical area of the treaty (Beattie v Canada (Minister of Indian Affairs and Northern Development), [1998] 1 FC 104, [“Beattie”]).

This matter deals with the decisions arising from a human rights complaint initiated by Ms. Bangloy and her family. The family launched the complaint after alleging discrimination on the basis of race or national or ethnic origin by INAC for their failure to provide Ms. Bangloy and her children with information regarding education benefits. They also maintained that INAC denied them these education benefits in question as retaliation for previous complaints of discrimination the family had lodged against INAC in Beattie.

The Tribunal found that there was no connection between INAC’s alleged failure to provide Ms. Bangloy with information about obtaining educational benefits and her race or ethnic or national origin. Therefore, she had not made out a claim of discrimination. With regard to the education funding issue in general, the Tribunal found that the same family was raising the same issue that had already been decided by the Federal Court in Beattie. In respect of the complaints of retaliation, the Tribunal found that the existence of a previous complaint was not a factor that influenced INAC’s alleged failure to provide education benefits. Therefore, there was no retaliation involved.

Ms. Bangloy’s application for judicial review required the Court to consider the Tribunal’s conclusions and whether or not they were reasonable. The Court found that the Tribunal’s conclusions that Ms. Bangloy had not made out a claim of discrimination in respect of annuity payments or information about educational benefits was reasonable given the absence of evidence of a connection between INAC’s position and Ms. Bangloy’s race, or national or ethnic origin. The Court concluded that the Tribunal reasonably found that the issue of entitlement to education benefits had already been decided by the Federal Court in Beattie. The Tribunal reasonably concluded that INAC’s conduct was not retaliatory. The Court dismissed this application for judicial review.

Anderson v Alberta (AG), 2020 ABCA 238

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Reply

Applications to admit fresh evidence allowed. The advance costs order was based on an error of law in applying the legal test to the facts regarding Beaver Lake Cree Nation’s award for funding an underlying claim. Given the resources available to the First Nation, the award was unreasonable and is set aside.

Indigenous Law Centre CaseWatch Blog

In these two appeals the Government of Canada and the Government of Alberta appeal an order requiring them each to contribute $300,000 a year to the plaintiffs to fund underlying litigation (Anderson v Alberta (AG), 2019 ABQB 746). Beaver Lake Cree Nation [“BLCN”] has about 1,200 members, and is a signatory to Treaty 6. The underlying claim is lengthy and nuanced, but the essence of the claim is that the Crown appellants have improperly allowed lands traditionally used by BLCN to be “taken up” for industrial and resource development. Declarations of rights, injunctions and damages are claimed.

The original statement of claim was issued in 2008. Since that time there have been various interlocutory steps taken in preparation for trial, such as closing the pleadings and some disclosure of documents. Questioning has not yet started but BLCN has spent approximately $3 million on legal fees to date, about one-half from its own funds, and presently pays $25,000 in fees per month ($300,000 per year). The 120 day trial is presently scheduled for January 2024.

The 2017 annual financial review by Indigenous Services Canada concluded that there are no concerns in regard to the financial health of BLCN. The case management judge did note that BLCN has operated in a surplus position in the last few years, and that its financial situation is improving. The test for advance funding was quoted at length from the leading cases (British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 [“Okanagan”]; Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [“Little Sisters”]). It was concluded that BLCN had sufficient resources to fund the litigation, but was entitled to allocate it to other community priorities. While acknowledging the extraordinary nature of an advance costs order, the case management judge directed that each of the appellants contribute per year towards the costs of the litigation, with BLCN continuing to pay a like amount.

The test for ordering a defendant to fund public litigation against it through an advance costs order was set in Okanagan: 1) the party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial; 2) the claim to be adjudicated is prima facie meritorious; and 3) the issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases (Okanagan; Little Sisters). In this appeal, the appellants only argue that the respondents have failed to meet the “impecuniosity” branch of the test. The test is that the applicant must be impecunious (Okanagan).

BLCN created the Beaver Lake Cree Nation Heritage Trust in 2014, after this litigation was well underway. It now argues that there are “strict restrictions” on these funds. A plaintiff cannot voluntarily tie up its assets in a trust, and then argue it is impecunious and in need of litigation funding. The limits on how much can be taken out every year were self-imposed, and could be changed. BLCN also has access to other funds, subject to a request or approval. A plaintiff cannot fail to seek access to its own assets, and then argue it is impecunious (Little Sisters). It was an error of principle to disregard these assets in the analysis.

The finding that “more than $3 million is available” demonstrates that the order should not have been granted, based on the record as it then existed. If circumstances have changed to the extent that BLCN has now become entitled to advance costs, it is incumbent on it to reapply. The presumption is still that public interest litigation must be funded by those advancing it.

West Moberly First Nations v BC, 2020 BCSC 1665

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Reply

With a few exceptions, the Court declined to compel the parties to provide further responses to demands for particulars in West Moberly’s lawsuit challenging the Site C hydro project. Most of their points of contention with respect to the pleadings should be addressed through discovery. 

Indigenous Law Centre CaseWatch Blog

The plaintiffs, West Moberly First Nations and Roland Willson on his own behalf and on behalf of all other members of West Moberly First Nations who are beneficiaries of Treaty 8 [collectively “West Moberly”] seek, among other things, to prohibit the defendant, the British Columbia Hydro and Power Authority, from building a hydroelectric dam and related facilities along the Peace River in northeastern British Columbia, known as the Site C project [“Project”] on the grounds, among others, that the Project infringes their rights under Treaty 8 (West Moberly First Nations v British Columbia, 2018 BCSC 1835).

The parties have been directed to develop a case management plan that would see the trial completed ahead of reservoir inundation, which was then scheduled for fall 2023. In this matter, out of the most recent round of amendments to the pleadings, there are six separate applications under the Supreme Court Civil Rules by which each of the parties seeks further and better particulars of their opponents’ pleadings [“Amended Notice of Civil Claim” or “NOCC”].

The Amended NOCC advances, among other things, new allegations as to the nature of the infringement of Treaty 8 that is alleged; breaches of various duties alleged to be owed by the defendants under the Canadian Charter of Rights and Freedoms and the United Nations Declaration on the Rights of Indigenous Peoples. The Amended NOCC also advances new private law causes of action based on alleged breaches of fiduciary duty, trespass, nuisance, riparian rights, unjust enrichment, waiver of tort and the tort of conspiracy. The subject matter of the claim has been expanded to include all development activities in West Moberly’s traditional territory, including the previous dams built along the Peace River. The amendments have also expanded the scope of the remedial relief sought, so that West Moberly now seeks, in addition to a prohibitive injunction permanently halting the project, a mandatory injunction to restore the land to its former state and damages, including disgorgement of all revenues that the defendants have received from the operation of the dams from their inception.

Although the parties agree on the general principles of law that must inform the Court’s analysis, they disagree on their application to the many contentious demands that are in issue. They join issue in many cases on the question of whether the applicant party is seeking particularisation of the facts that the pleading party intends to prove at trial, as opposed to the evidence that will be called to prove them. The Court refuses to compel the parties to provide further responses to the outstanding demands for particulars, with a few exceptions, due to that what is sought is evidence that is more properly explored through discovery.

Houle v Swan River First Nation, 2020 CanLII 88240 (FC)

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Reply

The Court ordered that two consolidated applications for judicial review in relation to an election dispute will be treated as an action. The Applicants seek a declaration that the First Nation’s customary election regulations are contrary to section 15 of the Charter and the Defendants plan to bring a defence based on sections 1 and 25 of the Charter, as well as section 35 of the Constitution Act, 1982. As the Charter argument is being raised for the first time on judicial review and section 35 rights can only be determined at trial, the matter will proceed as an action. 

Indigenous Law Centre CaseWatch Blog

Swan River First Nation [“SRFN”] and the Swan River First Nation Chief and Council [“Respondents”], have brought a motion under the Federal Courts Rules [“Rules”] for an Order pursuant to the Federal Courts Act directing that two consolidated applications for judicial review [“Applications”] be treated and proceeded with as an action.

Shawna Jean and Robert Houle [“Applicants”] in the underlying Applications, are seeking an Order to set aside the decision of the Electoral Officer of the SRFN that refused to accept their nominations as Chief and Councillor of the SRFN respectively in the 2019 General Election. The Applicants had not been residing on the SRFN Reserve for at least one year prior to May 3, 2019 in accordance with section 9.1(a)(2) of the Swan River First Nation Customary Election Regulations [“Election Regulations”]. Additionally, they seek declarations that they are eligible to run as candidates for the position of Chief and Councillor in the 2019 General Election, and that section 9.1(a)(2) of the Election Regulations contravenes section 15 of the Canadian Charter of Rights and Freedoms [“Charter”]. They contend that the impugned provision discriminates on the basis of Aboriginal residency and is therefore unconstitutional and is of no force or effect.

The Respondents intend to defend the Applications on the basis of sections 1 and 25 of the Charter and s 35 of the Constitution Act, 1982 in accordance with their asserted Aboriginal and Treaty rights. They argue that the procedures of an action are required to have a fair and just determination of the particular Aboriginal and Treaty rights defences being advanced and that the unique nature of these particular Applications is such that the rationales in support of the speedy judicial review process are not applicable.

The Applicants oppose the Respondents’ motion to have the Applications be treated and proceeded with as an action. They argue that the Respondents’ request to convert is premature because the Court has yet to determine whether there is a section 15 Charter violation. The Applicants also dispute the Respondents’ view of the customs, practices, traditions and history of the SRFN. According to the Applicants, the restriction of residency was not a traditional practice of the SRFN or its predecessor, the KEE NOO SHAY OOs’ Band, prior to Treaty No. 8, but rather the result of misinterpretation of Treaty No. 8 by government officials. The Applicants say that the judicial review procedure contains adequate mechanisms for the Respondents to outline their claim to Aboriginal and Treaty rights.

Section 18.4(2) of the Federal Courts Act vests the Court with the discretionary authority to order the conversion of an application for judicial review into an action “if it considers it appropriate” (Canada (AG) v Lafrenière, 2018 FCA 151). This Court has previously found that applications for judicial review that raise issues of proof of Aboriginal rights can only be determined by way of an action (Soowahlie Indian Band v Canada (Attorney General), 2001 CanLII 22168 (FC)). In this matter, the procedures of a judicial review application do not provide sufficient procedural safeguards to ensure fairness to the parties on the Applications, nor do they enable the Court to make a proper determination of the issues of Aboriginal and Treaty rights before the Court in this proceeding, thereby this Court concludes that the Applications shall be treated and proceeded with as an action.

Cowichan Tribes v Canada (AG), 2020 BCSC 1507

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Reply

Cowichan Tribes is entitled to claim privilege over information that their Lands and Governance Director learned from Cowichan Elders during Treaty Committee meetings and during his involvement in a project-specific traditional land use study. The public interest in reconciliation through good faith treaty negotiations and the duty to consult favours case-by-case privilege in this case.

Indigenous Law Centre CaseWatch Blog

This matter is in regards to an Aboriginal title and rights case, where the testimony of Mr. George, Lands and Governance Director for Cowichan Tribes, was questioned on communications that was learned of during Cowichan Tribes Treaty Committee meetings and related to traditional use interviews, over which the plaintiffs claim privilege. The Treaty Committee meetings were held to advise on Cowichan Tribes’ approaches to treaty negotiations and the pursuit of Aboriginal rights and title. Cowichan Tribes was advised on strategic use of oral history information including oral histories shared at Treaty Committee meetings.

In establishing confidentiality at common law, the Supreme Court of Canada first adopted the Wigmore’s four criterion in Slavutych v Baker, [1976] 1 SCR 254: 1) the communications must originate in confidence that they will not be disclosed; 2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; 3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and 4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. The party seeking to protect the communication from disclosure must demonstrate that the authors of the communications possessed expectations of confidentiality (Northwest Organics, Limited Partnership v Roest, 2017 BCSC 673 [“Roest”]; Yahey v British Columbia, 2018 BCSC 123 [“Yahey”]).

The plaintiffs submit that the communications were made during these confidential Treaty Committee meetings which were conducted with an expectation that the information would not be disclosed. Confidentiality is essential to Cowichan Tribes’ relationship with its members and its ability to ask knowledge holders and Elders to share information about traditional use. This relationship of trust is essential to Cowichan Tribes’ ability to engage in good faith consultation with the Crown. The Cowichan community view this relationship as one that should be sedulously fostered. Allowing disclosure of the contents of the interviews in the litigation would undermine the constitutionally protected process while having minimal benefit to the disposal of this litigation.

The court in Roest held that the Wigmore criteria are not “carved in stone” but are a “general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case” (Roest; R v National Post, 2010 SCC 16). Case-by-case privilege may restrict disclosure where Wigmore’s four criteria for establishing confidentiality at common law exists. Those criteria seek to balance the protection of confidential communication with the public interest in the correct disposal of litigation (P(V) v Linde, [1996] 2 WWR 48).

The Wigmore criteria have been applied to preserve the confidentiality of interviews with Elders and community members undertaken in the course of traditional use studies (Yahey). These criteria must be applied to such interviews in a manner sensitive to the unique legal and constitutional context of the duty to consult, which is underpinned by the honour of the Crown and reconciliation, and involves reciprocal duties on the Crown and First Nations to participate in good faith in the consultation process. This application must also be viewed in the context of the Crown’s constitutional duty to consult and deal honourably with First Nations. This context includes Cowichan Tribes’ reciprocal duty to “express its interests and concerns regarding potential impacts to its rights, and to consult in good faith” and recognition of the fundamental importance of reconciliation between the Crown and First Nations in this process (Yahey; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69).

In this case, the four Wigmore criteria for case-by-case privilege are met. The plaintiffs are not evincing an intention to rely on, or benefit from, the evidence they claim to be privileged. They are not seeking to adduce evidence about the substantive content of the Treaty Committee discussions. Nor do they seek to rely on the substantive content of some interviews conducted while shielding other interviews from disclosure. Rather, they adduced evidence of oral history from other sources. The question of what Mr. George learned in Cowichan Tribes Treaty Committee meetings regarding oral history of Cowichan Tribes Elders about fishing on the Fraser River is disallowed as the answers it would elicit are privileged.