Tag Archives: Aboriginal

Taseko Mines Limited v Tsilhqot’in National Government, 2019 BCSC 1507

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Interlocutory injunction granted in favour of the Tsilhqot’in Nation against Taseko Mines Limited work permit, on the basis that it infringes their Aboriginal rights.

Native Law Centre CaseWatch Blog

Taseko Mines Limited [“Taseko”] applied to prohibit members of the Tsilhqot’in Nation [“Tsilhqot’in”] from blockading its access to an area where the mining company wants to carry out an exploratory drilling program [“NOW program”]. Taseko has access pursuant to a notice of work permit [“NOW permit”] issued under the Mines Act. That application is now moot since the Court decided Tsilhqot’in’s application will succeed for an injunction prohibiting Taseko from carrying out its NOW program until the Tsilqot’in’s underlying claim to quash the NOW permit is heard.

In this matter, the issue is whether granting Tsilqot’in the interim injunction prohibiting Taseko from undertaking the NOW program would amount to a final determination of the action, which would effectively remove any benefit of proceeding to trial. The NOW permit will expire in July 2020, and if Taseko is enjoined until the action is heard, it is very unlikely the trial could be completed in time to for the 4-6 weeks required to complete the NOW program. In the Court’s view, the extension is essentially mechanical and concludes that Taseko will have until July 2022 to complete the NOW program, because Taseko can extend the NOW permit by two years under s 5(1) of the Permit Regulation.

Issues pertaining to infringement and justification, which will be the focus of the trial, are not new to the parties. Because some of the factual and legal elements have been argued before different courts for years, the discovery process will not be as time consuming as it would be if the issues were new to the parties. Based on the evidence and submissions before the Court, if the parties prioritize the matter, the timeline should be adequate to prepare for trial. The injunction is not tantamount to granting relief nor is it bound to impose a hardship removing any benefit of trial. The threshold merits test is the serious question to be tried standard (R v Canadian Broadcasting Corp, 2018 SCC 5). This threshold is relatively low as a prolonged examination of the merits is generally neither necessary nor desirable (RJR-MacDonald Inc  v Canada, [1944] 1 SCR 311).

It was determined that given the nature of the harm to the Tsilhqot’in, and the waiving of the undertaking as to damages, there was a material risk of irreparable harm to both parties. When there is a risk of both parties suffering a material risk of irreparable harm, the court should favor the status quo (AG British Columbia v Wale (1986), 9 BCLR (2d) 333 (CA)). It was determined that the NOW program would change the status quo as it would disturb the land. The Tsilhqot’in stand to suffer greater irreparable harm if the injunction is not granted. Despite that the Tsilhqot’in pursued a self-help remedy of a blockade outside the courts, the imperative of reconciliation was such that the balance of convenience was in the Tsilhqot’in’s favour.

Alton Natural Gas Storage Inc v Poulette, 2019 NSSC 94

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Permanent injunction order granted. The Applicant company may make a place on its lands where protestors could gather and be seen by the public. The Respondents and their belongings are confined to this permitted area.

Native Law Centre CaseWatch Blog

Alton Natural Gas Storage Inc [“Alton”] was seeking a permanent injunction against Respondents who oppose Alton’s plan to use hydro technology to construct a vast underground cavern system. Discharge construction water would flow as a result into the Sipekne’katik River [“River”]. The Mi’kmaq people have used the waterway for over 4,000 years. The Sipekne’katik First Nation and other First Nations have significant interests in the River. Alton was proposing to construct a system of caverns in the land beside the River to store natural gas and had acquired over 40 acres of land bordering the River. To do so, Alton planned on creating the caverns by pumping the River water into salt deposits underground. Alton expressed that the brine was to be injected into a mixing channel adjacent to the River, diffused, diluted, and returned to the River at a salinity level within the natural range.

Numerous First Nations, however, expressed their fears that the brine would pollute the River. A camp was built near the front entrance to Alton’s land and its guardhouse. Alton alleged that the camp prevented the heavy equipment needed to create a pump system. Protestors continued to impede access to Alton’s property at various times after 2016. The court determined that for Alton to receive a motion for an interlocutory injunction it must show three things: 1) that its claim raises a serious issue to be determined on the hearing of the application for a final injunction; 2) it will suffer irreparable harm if there is no temporary injunction before the hearing of the application; and 3) the balance of inconvenience must favour Alton over the Respondents (RJR MacDonald v Canada, [1995] 3 SCR 199 [“RJR”]).

Alton proved title and occupation to the land along the River where the protestors were camped and had established a serious issue to be tried. Evidence of threats from Youtube was sufficient to establish irreparable harm (RJR). Assessing the balance of convenience involved “determining which of the parties will suffer the greater harm from the granting or refusing of an interlocutory injunction, pending trial” (Maxwell Properties Ltd V Mosaik Property Management Ltd, 2017 NSCA 76).  The Court expected something more than an assertion of Aboriginal or treaty rights to establish a balance of inconvenience favouring the Respondents. Therefore, the balance of convenience was determined to be with Alton.

R v Luke, 2019 ONCJ 514

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Conditional discharge granted. In this matter involving an Indigenous first time female offender, the mandatory minimum sentence in s 255(1) is inconsistent with s 12 of the Charter.

Native Law Centre CaseWatch Blog

The accused was arrested for impaired driving after she took her mother’s car without consent. She assumed control of the vehicle in an extremely intoxicated state, out of reaction to her boyfriend’s infidelity with her own cousin. A monetary penalty in response to the creation of a serious risk, such as with impaired driving, will not be a grossly disproportionate punishment. The central issue is whether the criminal record which necessarily flows from the imposition of that mandatory minimum fine results in a s 12 Charter violation for an offender, such as with accused in this matter. The result of the mandatory minimum sentence demanded by s 255(1) of the Criminal Code [“CC”], the discretion afforded by s 730 of the CC was unavailable. As well, when Parliament enacted s 255(5), Ontario never opted into the application of a discharge provision.

A discharge should only be granted if the court “considers it to be in the best interests of the accused and not contrary to the public interest”. This must be answered having regard to the accused’s moral blameworthiness and to the gravity of the offence. As well, all sentencing determinations “must respect the fundamental principle of proportionality”. Taking into account s 718.2(e), a different method of analysis must also be used when determining a fit sentence for Aboriginal offenders.

Denunciation is a key consideration in drinking and driving offences, especially where the offence was motivated by extreme emotional turmoil such as in this matter. Deterrence of like-minded potential offenders seems futile. It would be more effective if the court imposed a driving prohibition in addition to the two years’ probation. The accused accepted responsibility for the offence by pleading guilty, within weeks began addressing the alcohol addiction, met with a counsellor and a registered psychotherapist, and has the intent of completing high school and becoming a youth worker. In holding it would not be contrary to the public interest to grant this specific accused a curative treatment discharge, it would also be a just sanction given the accused is an Aboriginal offender.

The mandatory minimum sentence in s 255(1) prevented giving effect to several important factors such as: 1) the accused is a first offender with strong rehabilitative potential; 2) the offence was largely motivated by alcohol addiction and there is good reason to believe continued treatment will effectively deal with that issue; and 3) the accused’s offence was connected to their Aboriginal background which also provides for rehabilitative and restorative sentencing options. There is recognition of the stigmatization, stereotyping, and further challenge to the Aboriginal accused in finding future educational and employment opportunities. S 255(1) was stated to result in at least some grossly disproportionate sentences and could not be saved under s1. A Provincial Court’s power to determine constitutional validity of a CC provision is limited to the case that is heard, therefore no formal declaration was made for s 255(1). In this case, the accused was granted a curative treatment discharge for the reasons above.

Bird v Blott, 2019 ABQB 764

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Application for certification granted with costs. A class action will go forward to sue an Albertan lawyer who was disbarred for his misconduct in managing IRS files.

Native Law Centre
CaseWatch Blog

This is an application by the Plaintiffs for certification of a class action pursuant to s 5 of the Class Proceedings Act [“CPA”]. It concerns the alleged mishandling of approximately 5600 residential school claims by former Calgary lawyer, David Blott, on behalf of Aboriginal clients who were signed up to retain Blott by the form filling efforts of Honour Walk Ltd. Mr. Blott was reported to have received 21 million dollars for his firm’s services. The absolute failure of Blott to provide individualized legal services to the Plaintiffs in the Residential School Class Action is well documented in judicial decisions (Fontaine v Canada (AG), 2012 BCSC 839 and 2012 BCSC 1671). He had set up his practice in such a way as to maximize profit and minimize the effort required.

In order for the Court to certify these proceedings, it must be satisfied that the conditions set out in the CPA have been met, but be construed generously. An overly restrictive approach must be avoided in order to realize the benefits, such as judicial economy, access to justice and behavior modification and so on, by those who cause harm at the certification stage (Hollick v Metropolitan Toronto (Municipality), 2001 SCC 68) [“Hollick”]; Cloud v Canada (AG), (2004) 73 OR (3d) 401 (ONCA)).

The statement of claim disclosed a cause of action. The next condition for certification required an identifiable class that should be defined independently of the merits of the action (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46). This definition included those who retained the Blott Defendants arising out of the residential school experience and should not be unnecessarily broad (Hollick). The way in which the Blott Defendants arranged Mr. Blott’s practice essentially ruled out the possibility of a solicitor and client relationship, which Mr. Blott’s clients were entitled to expect. The Court is satisfied that there is an identifiable class.

There is a common issue among this identifiable class of an experience of being largely ignored and exploited. It turned what was supposed to provide reconciliation and closure into another traumatic experience. It would appear that most of Mr. Blott’s clients will have had very similar complaints and circumstances. The fact that some of them may have been affected differently does not mean there are no common issues. The Court is satisfied that the condition of a common issue for certification has been met.

Thousands of innocent people retained Blott to seek justice for them, as part of a class of residential school attendees. This class of people are vulnerable and for the most part, impecunious. As with the resolving of the residential school claims through a class proceeding, it is hard to see how justice can ever be obtained for the Blott clients other than through another class proceeding. It is important to proceed with their claims as a class because, like the residential school claims, it will be useful to establish standards and a basis for comparison when one does analyze the quantum of each claim.

The law firm acting on behalf of the Plaintiff class is doing this on a pro-bono basis, and there can be no doubt that the efficiency of dealing with all the claims in this way is far superior to numerous individual claims. The Court is satisfied that a class proceeding is the preferable procedure for this action.

Awashish v Conseil des Atikamekw d’Opitciwan et al, 2019 FC 1131

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Motion dismissed. The Applicant failed to demonstrate he would suffer irreparable harm if a First Nation election proceeded, as he can pursue an adequate remedy for his complaint before the First Nation’s Appeal Board.

Native Law Centre Case Watch

A general election for the Conseil des Atikamekw d’Opitciwan was called for September 10, 2019. The elections are governed by an electoral code, where along with other conditions, all candidates must be ordinarily resident in Opitciwan. The Applicant was nominated for the position of Chief, but the Electoral Officer withdrew the name from the ballot because the Applicant does not reside in the community. The Applicant seeks an interlocutory injunction so that his name remains on the list of candidates. He submits that the residency requirement is invalid, discriminatory and contrary to the Charter. After he brought an application for judicial review of the Electoral Officer’s decision, the Applicant subsequently brought this motion for an interlocutory injunction. Despite a strong case shown on the merits, the Applicant has failed to demonstrate that he would suffer irreparable harm if his motion was not granted. There is an adequate remedy before the Opitciwan First Nation Appeal Board that would allow him to raise his Charter claims.

An interlocutory injunction is a temporary measure intended to preserve the rights of the parties until a decision is rendered on the merits but it is not a final resolution of the case. This takes into account that such motions must often be decided on the basis of an incomplete evidentiary record and that a final resolution cannot be reached in a short time frame (Manitoba (AG) v Metropolitan Stores Ltd, [1987] 1 SCR 110; RJR–MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR”], and Harper v Canada (AG), 2000 SCC 57).

The first stage of a three part test requires the applicant to demonstrate a serious question to be tried, meaning neither frivolous nor vexatious. At the second stage, the Applicant must convince the court that irreparable harm would be suffered if an injunction is refused. The third stage of the test requires an assessment of the balance of convenience to identify the party that would suffer the greater harm from the interlocutory injunction, pending a decision on the merits. (R v Canadian Broadcasting Corp, 2018 SCC 5 [“CBC”]) It should not be believed in this highly contextualized and fact dependent framework, that the three components of this framework are completely independent of each other (Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of SK Inc, 2011 SKCA 120).

This Court often hears motions for interlocutory injunctions in First Nations governance matters. The court’s discretion should be guided by the principle of self-government, and assess whether the various courses of action would facilitate decision-making by the First Nation itself (Gadwa v Joly, 2018 FC 568). Unlike a prohibitive injunction that has a relatively low threshold (RJR), a mandatory injunction directs the defendant to undertake a positive course of action. In these instances, a “strong prima facie case” is required. Upon a preliminary review of the application, the court must be satisfied that there is a strong likelihood that the applicant at trial will be successful in proving the allegations set out in the originating notice (CBC).

In this matter, the Applicant is not seeking to prevent the election from being held, but an order to include his name in the list of candidates. In certain cases, the result of the interlocutory motion will in effect amount to a final determination of the action, thereby, a more extensive review of the merits of the case must be undertaken (RJR). When the judge hearing the merits of the case cannot undo what was done at the interlocutory stage, a strong prima facie case must be established. If the injunction is granted, the election would be conducted with ballots that include the Applicant’s name, therefore he will have obtained what he wants, making it difficult to see how a hearing on the merits would be useful (Toronto (City) v Ontario (AG), 2018 ONCA 761).

The Applicant has demonstrated the existence of a serious question to be tried, but not a strong prima facie case. The trial judge dealing with this matter will assess the evidence presented to the court and come to the appropriate conclusions. Harm is by definition reparable if there is recourse that makes it possible to vindicate the underlying right and that provides adequate remedies. The doctrine of exhaustion of remedies requires that an applicant pursue all adequate administrative remedies available to them prior to applying for judicial review. This doctrine improves respect for self-government, as it ensures that governance disputes are first dealt with by Indigenous decision-making processes (Whalen v Fort McMurray No 468 First Nation, 2019 FC 732).

The Election Code provides for the establishment of an appeal committee. Upon receipt of a complaint, the appeal committee conducts an investigation and, if founded, they may take all necessary measures, including ordering a new election. The Applicant could file a complaint on the basis that the rejection of his nomination was in violation of the Charter. The Election Code also provides that any person whose nomination is withdrawn by the Electoral Officer may immediately bring that decision to the appeal committee which the Applicant could have done. The Court therefore concludes that the Applicant has a recourse that will allow him to put forward his Charter arguments and that he did not demonstrate irreparable harm. There was no need to fully address the balance of convenience.

 

R c Kanatsiak, 2019 QCCQ 1888

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A second discharge for the accused is denied. Despite the offender’s Aboriginal status, it would be inappropriate to grant two consecutive discharges considering the violation of the first.

Native Law Centre Case Watch

The accused pled guilty to two counts of failing to comply with a probation order pursuant to s 733.1(1)(b) of the Criminal Code [“CC”]. She failed to perform 75 hours of community service within a period of 8 months (an extension granted from the original 4 months) and failed to attend her mandatory meetings with her probation officer as required by the terms of her supervised probation. In addition, she was also charged with domestic violence offences against her boyfriend.

The origin of the probation order that was breached and the granting of the previous discharge, was from breached conditions imposed in the context of various domestic violence charges against her, all involving the same boyfriend. Ultimately, all of the substantive domestic charges were withdrawn or stayed by the Crown. The accused was sentenced to a conditional discharge under s 730(1) CC on a 18-month probation order included mandatory supervision with a probation officer, with the above conditions. She now requests a second successive discharge.

The accused is now 25 years old and has no prior convictions, although she has breached her conditional discharge. She is from Nunavut but lives in the Montreal area where she works at a facility that provides Montreal-based services for Nunavik communities. A letter from the accused’s employment said nothing about the consequence of a criminal record or any other employment requirement or condition.

Granting of a discharge under s 730 CC is one of the most lenient sentences available under the CC. S 730(1) CC sets out two conditions which must be met before a discharge may be granted by a sentencing court: 1) it must be in the best interests of the accused; and 2) it must not be contrary to the public interest.

According to the Supreme Court of Canada in R v Gladue, the main purpose of s 718.2(e) CC is to help correct the problem of over-incarceration, in particular to the disproportionate incarceration of Aboriginal peoples. The court must take into account the circumstances of the offence and the offender including a consideration of the unique circumstances Aboriginal peoples face, such as systemic background factors, and the sanctions that may be appropriate because of Aboriginal heritage or connections. Gladue factors do not serve to depart from a proportionate sentence in a given case, but it is to achieve a proportionate sentence.

The Gladue principles require sentencing judges to give s 730(1) CC a generous application when sentencing Aboriginal offenders so as to attempt to break the cycle of systemic criminalization. The court concludes that s 718.2(e) CC in this matter applies, in particular the “unemployment factor” weighs heavily in the court’s assessment. The accused contends that she is now steadily employed. In light of all the s 718 CC considerations, the court must fashion a sentence that would not result in her losing her employment or other future employment opportunities.

The accused has already benefited from a discharge, although this does not automatically disqualify her from receiving a second one. When an offender has already benefited from a discharge in the past, however, a subsequent request for another discharge will generally be refused by the courts. There is a clear continuum between the offences sentenced in the previous discharge and the new offences of failure to comply with the probation order imposed. Orders of the court must be scrupulously respected unless and until they are cancelled or replaced. The accused must comply with conditions, even if the underlying charges ultimately fall apart. The accused did not take her obligations seriously or make them a priority. As for mitigating factors, the lack of a criminal record, her guilty plea and her steady employment does show some structure in her life.

It was not shown that the burden of a criminal record would affect her work or reduce her employment prospects in any way, and to suggest otherwise would be speculation. The court needs to enter a conviction against the accused to deter her from future offences and to impress upon her the importance of respecting court orders. The breached court order was imposed to help her in the first place, therefore a conviction is also necessary for her rehabilitation. The accused did not respect her probation period imposed with the first discharge and there is no significant passage of time between the offending behaviours. With respect to the public interest, the conditions breached were specific and important. The hours of community service were integral in ensuring a sense of accountability, as well as a source of social contribution that justified in part the discharge that she received. After balancing all of the factors, including the degree of moral blameworthiness, general deterrence and denunciation, rehabilitation, her guilty plea and her Aboriginal status, a short period of imprisonment is deemed appropriate.

Schemenauer v Little Black Bear First Nation, 2018 SKQB 203

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

Native Law Centre Case Watch

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

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

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

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

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

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

R v Desautel, 2019 BCCA 151

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

Native Law Centre Case Watch

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Good v Canada, 2018 FC 1199

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Application dismissed. The applicant did not discharge her burden to satisfactorily prove that the First Nations Election Act was contravened during a First Nation’s Chief and Band Council election.

Wiyasiwewin Mikhiwahp Native Law Centre
Case Watch

Michelle Good has appealed all of the last three elections of the Red Pheasant First Nation [RPFN], but this is the first appeal she has applied for under the First Nations Elections Act [FNEA]. She is a practicing lawyer in British Columbia, and is a band member of the RPFN. On November 5, 2015, the RPFN Band Council signed a Band Council Resolution [BCR] in favour of opting into the FNEA, a statutory regime that legislates a process for First Nations to elect their Band Council members. After receiving the BCR, the Minister added the RPFN to the FNEA Schedule. An election followed on March 18, 2016. After the election results became known, Good filed an application under s 30 of the FNEA in the Federal Court to review the election. She went on to allege that the election and the election process contravened numerous sections of the FNEA. Good has applied for nine different declarations and an order that a new election be called as her only relief.

An election to be set aside requires meeting a statutory test under ss 31 and 35(1) of the FNEA. The two-part test requires the Applicant to establish that a provision was contravened and that the contravention likely affected the election result. Contraventions unlikely to have affected the result of the election will not trigger overturning the election. The requisite standard of proof for establishing this test is the balance of probabilities. In interpreting the FNEA, the Saskatchewan Court of Appeal noted that the presumption of regularity is reflected in the onus and evidentiary burden imposed on an applicant to demonstrate that a contravention has occurred that likely affected the result of an election. Once an applicant establishes a prima facie case, the burden switches to the respondent to refute it. The type of contravention is important and relevant as not every contravention will justify triggering the overturning of the election. This Court retains discretion on overturning elections, even in situations involving fraud or other forms of corruptions.

Evidence in a judicial review proceeding is dealt with by the Court through examination of the affidavits before it. In this matter, the record before the Court was complicated by numerous affidavits which included redacted affidavits, supplementary affidavits, and late filed affidavits. Many of the affidavits contain hearsay evidence, argument, and irrelevant or inflammatory comments. The Court found this unacceptable, inappropriate, and not a good use of judicial resources. Not only is such a record unfair to the Judge, but it is also unfair to the Respondents as the Respondents cannot know exactly what the relevant allegation is, or the specific evidence that supports the allegation.

A main allegation in many of the affidavits revolved around cash being given to band members by the Chief and Council at the time of the election and with respect to the appeal. Money given to assist band members in need has been the tradition for many years, and evidence was led by both parties to the effect that the RPFN is not a wealthy First Nation. Many of its members are in need of assistance for food, gas, and other necessities. People text or solicit the Chief and Council for cash and if the requests are deemed as legitimate, typically money will be given from their own pockets or accounts, and on occasion from a band account. This practice does not stop during election campaigning. The Court had to determine in each situation whether the contributions by the individuals were philanthropic, or for the purposes of vote purchasing. The Respondents provided a methodical refutation to these allegations.

There were also allegations of unlawful control of enough blank ballots to control the outcome of the election. The allegations had reasonable explanations given by the Respondents and the Court preferred their evidence. It is not a violation of the FNEA or any common-law principles to be asked to join a slate of candidates. This political maneuvering would appear to be what occurs in many elections, and is a recognized part of the political process. It was also alleged that fraud occurred from the overbroad use of Form 5D (Form to Request a Mail-in Ballot) and Form 8C (Declaration of Person Delivering a Mail-in Ballot Package) which allowed illegally obtained ballot forms to be placed in the ballot box, therefore controlling the outcome of the election. Walking in ballots and completing the 8C Form in itself is not evidence of fraud, especially given that most of the band members live off reserve. Good also alleged that people were given the paper with the slate of candidates that they were to vote for, but there was no evidence of this that was acceptable to the Court. There is no prohibition against entering a polling station with a slip of paper in and of itself.

The substantive allegation surrounding vote buying was supported by excerpted Facebook posts. This is not reliable evidence, as it is inherently suspect. An individual can post on Facebook that they have sold their vote, and another individual can “corroborate” a potentially false narrative without any underlying substrata of truth to the event. While it has been held that Facebook posts can result in legal action, such as in the employment context, it is highly distinguishable from individuals attempting to “set-up” others on social media platforms to establish the corrupt nature of elections on the RPFN. Good was not present at the actual election and her only knowledge was garnished from following social media. There was also alleged vote-buying at the Ramada Inn in the hospitality room put on by the Chief. Having a “come and go” hospitality room is not out of the ordinary for candidates in any and all political forums, and it is not found on these facts that the hospitality room or the events that occurred within comprised an inducement to buy a vote.

The remaining evidence does not support a contravention of the FNEA, and in the alternative, it does not affect the results of the election. There were several other affidavits that were not specifically addressed as that evidence was related to issues not relevant or not before the Court. The Court commented that this election was a complex web of intrigue and that the band is clearly divided in its loyalty and this toxic environment can never be in the best interests of the band.