Williams Lake First Nation v Canada (Indian Affairs and Northern Development), 2021 FCA 30

Posted on April 7, 2021 by thp151

Appeal remitted back to the Specific Claims Tribunal. The Federal Court of Appeal determined that the tribunal was unreasonable in their assessment of the Crown’s fiduciary duty owed towards the appellant First Nation. The tribunal erred by failing to give adequate consideration to applicable common law precedents. This was the result of failing to consider other less invasive and viable options in fulfillment of the Crown’s obligation of minimal impairment, where the taking or expropriation of reserve land is undertaken for a public purpose.

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This claim is rooted in the sale of 4.37 acres of land to the Pacific Great Eastern Railway Company in 1914-1915. It occurred in the grander context of British Columbia’s belated efforts to set aside reserve lands for British Columbia’s Indigenous peoples. Central to this claim is the historical backdrop in which the events unfolded and are imperative to the analysis of this case.

At the Specific Claims Tribunal [“SCT”], Williams Lake First Nation had contended that the lands had been wrongfully transferred, or alternatively, that the Crown had breached their fiduciary duty owed to the Band in respect to this transfer of land. The SCT determined that the Band’s specific claim was unfounded. Williams Lake contended that the determination made by the Supreme Court of Canada in Wewaykum was non-binding obiter, and that the application is limited to its fact, or needs to be revisited to apply to the present decision. The SCT rejected this. The SCT turned to the applicable legislation, determining that while the provisional nature of the land did implicate the application of some legislation, that ultimately, the BC Land Act, 1911 enabled the province to grant Crown land for railway purposes, regardless of whether the lands had been reserved under the Indian Act. Lastly, the SCT considered whether the Crown had discharged of their fiduciary duty, and focused their analysis on the monetary compensation, and not the unheeded wish of land in lieu of monetary compensation.

The Federal Court of Appeal determined that Williams Lake appeal must succeed, insofar that the SCT was unreasonable as they “failed to give adequate consideration to the principles established in the applicable common law precedents governing the scope of the Crown’s fiduciary duties to Indigenous peoples in respect of reserve lands”. All that was required for the construction of a canal over reserve lands was the grant of an easement, and that the Aboriginal interest must be preserved to the greatest extent practicable to preserve the taxation jurisdiction of the band (Osoyoos Indian Band v Oliver (Town), 2001 SCC 85). On this vein of analysis, the Federal Court of Appeal cites extensive precedent in line with this principle of minimal impairment, and the failure of the SCT to reach a similar conclusion to similar circumstances in the past. Moreover, the Court finds that the SCT failed to consider such options as an easement, versus a grant in fee simple. The Court determines that the matter is best remitted back to the expertise of the SCT for redetermination.

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

Posted on April 5, 2021 by thp151

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.

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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

Posted on March 15, 2021 by thp151

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.

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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.

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

Posted on February 23, 2021 by thp151

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.

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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

Posted on February 22, 2021 by thp151

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.

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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

Posted on February 17, 2021 by thp151

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.

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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.

In The Matter Of A Hearing Under The Child and Family Services Act, Ss, 2021 SKQB 2

Posted on February 8, 2021 by thp151

It is in the best interests of a First Nations child to stay with the current caregivers who are pursuing an adoption plan. Although it is encouraged that her First Nations paternal grandmother be in contact and included in her upbringing, the grandmother’s custody application is dismissed. The child should not have her living arrangements disrupted, as she is loved and cared for; one caregiver is a member of the First Nation; and there is cultural continuity.

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T.L., who turned nine years in 2021, was first apprehended in the fall of 2015 by the Ministry of Social Services and then subsequently transferred to the Yorkton Tribal Council Child and Family Services Inc [“YTCCFS”]. Following her apprehension, she began living with her grandfather, M.S. on White Bear First Nations. M.S. had T.L. enrolled at the local playschool and called upon his sisters from time to time to assist with her care. Nevertheless, M.S. had concerns raising her by himself, thereby D.L. and C.Y., her current caregivers, welcomed T.L. as their daughter and do not differentiate between her and their other children. M.S. continues to play an active role in T.L.’s life, and she continues to have frequent visits with her grandfather. YTCCFS now requests a permanent order pursuant to The Child and Family Services Act [“CFSA”] with respect to T.L. with the intent of pursuing an adoption plan with her current caregivers.

A.D. is T.L.’s paternal grandmother. A.D. had no knowledge that T.L. was her granddaughter until her son informed her of the DNA results in the summer of 2018. Upon learning of T.L., A.D. contacted YTCCFS. A.D. was first introduced at D.L.’s and C.Y.’s home. A.D. was aware that YTCCFS supported T.L. remaining with D.L. and C.Y., but she was opposed to that arrangement and that year applied for an order finding her to be a person of sufficient interest, custody and access to T.L. A.D. asks for custody pursuant to The Children’s Law Act, [“CLA”] or, alternatively for T.L. to be placed in her care as a person of sufficient interest pursuant to the CFSA.

As T.L. is First Nations and a member of White Bear First Nations, consideration of her best interests requires thought be given to her cultural, linguistic, religious and spiritual upbringing and heritage, among other things. Regardless of which Act is applied, T.L.’s best interests must be considered. Some of the factors to be considered under the CFSA are similar to those found in the CLA but there are additions (Saskatchewan (Minister of Social Services) v S(EK) (1996), 146 Sask R 46 (QB)). Bill C-92 sets out principles which underly the legislation, including the best interests of the child and cultural continuity. It is required to the extent possible, that these factors be construed in a manner consistent with the law of the Indigenous group. White Bear First Nations “opposes permanent wardship orders and adoption orders involving non-[A]boriginal foster parent(s) when there is a White Bear First Nations band member(s) or other First Nations individual(s) or family member(s) able and willing to care for the child(ren) in question” (White Bear First Nations, Band Council Resolution).

T.L., through her grandfather, M.S., has been exposed to her cultural and spiritual heritage. It was through M.S. that T.L. was introduced to D.L. and C.Y. D.L. and C.Y. are part of M.S.’s family. T.L. developed strong relationships with D.L. and C.Y., whom she now calls “mom and dad”, and her siblings Z.L. and G.L., who reside in the home with her. D.L. is a member of White Bear First Nations, and although his spouse, C.Y. is Caucasian, she encourages T.L. in cultural activities. Her sister, T.H., who she had never met prior to M.S. taking her on a visit in 2017, now resides in D.L.’s and C.Y.’s home with her and have grown close. Bill C-92 specifically speaks to the need for stability. T.L. has had a connection to M.S. her entire life and has maintained that connection though she now lives with D.L. and C.Y. She is settled in their home and enjoys her school and friendships.

It is unfortunate that the parties are in conflict and compelled to speak ill of the other and find fault in the other’s care of T.L. Both A.D. and M.S. are residential school survivors, and both turned to alcohol in early adulthood. Both rediscovered their cultural and spiritual heritage following their commitments to sobriety. Even if they are not up to A.D.’s standards, it is unclear why A.D. as a grandmother and Elder, particularly when she lives minutes away, could not provide additional guidance and input respecting cultural heritage without the necessity of having T.L. live with her. The current care arrangement with D.L., C.Y. and M.S. is in keeping with the tradition of family stepping up to care. A.D. is a blood relative and is also family but until two years ago, she was a stranger.

The relationship most important to T.L. is her relationship with M.S. The parenting plan will secure that relationship. Both D.L. and M.S. are members of White Bear First Nations and an ongoing relationship with the community is therefore ensured. M.S., D.L. and C.Y. will also ensure cultural continuity and expose T.L. to Indigenous culture and heritage. T.L. can only benefit should A.D. choose to supplement that exposure through her own involvement with her granddaughter. YTCCFS was of the view that T.L. could only benefit from relationships with both her maternal and paternal sides of the family. The plan is also consistent with the White Bear First Nations’ band council resolution as T.L. will remain with a member of White Bear First Nations, D.L. YTCCFS should be permitted to pursue the plan as recommended as it will ensure T.L. has the stability she requires and the ongoing love of family. It is in T.L.’s best interests that she be permanently committed to the Ministry with a view to pursuing the adoption by D.L. and C.Y .

Johnson v Canada (Registrar, Indian Register), 2020 BCSC 1955

Posted on February 5, 2021 by thp151

Appeal stayed. The appellant appealed what they interpreted as a decision by the Registrar of the Indian Register. The Court lacks jurisdiction to hear the appeal as it is premature given the statutory requirements of the Indian Act have yet to be met. Specifically, the nature of a response made by the Registrar was not a “decision” capable of being appealed until it is “protested” and the statutory proceeding is concluded.

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The appellant is a status Indian and member of Sechelt Indian Band, a band within the meaning of the Indian Act. In 2017, the appellant requested that the Registrar transfer him from the Sechelt Band List to the Semiahmoo Band List, as he believes he is entitled to membership in the Semiahmoo Indian Band [“Semiahmoo”].

The Department of Indigenous Services [“Department”] maintains the Semiahmoo Band List as Semiahmoo does not maintain its own membership code. Section 11 of the Indian Act sets out the membership rules for a band list maintained by the Department. Section 12(b) of the Act provides that, within certain limits, a person who is a member of another band is entitled to have their name entered in the Department band list if the council of the admitting band consents.

In 2018, the Registrar responded to the appellant’s transfer request, stating that the request could not be processed without receiving a Band Council Resolution [“BCR”] from the Semiahmoo Band Council. A separate letter was sent by the Registrar to the Band Council of Semiahmoo requesting a BCR accepting the appellant into the band’s membership. The appellant argued that a BCR from Semiahmoo was not required under s 11 of the Indian Act and that s 12(b), which requires band council consent to adding a band member, had no application.

The Registrar then advised the appellant that the Department’s position was that s 12 applied to all band transfers. The appellant sought judicial review in the Federal Court, but that was discontinued as it is this Court that has the necessary jurisdiction. The appellant advised the respondent he would pursue a protest under s 14.2 of the Indian Act. Section 14.2 allows for a protest to be made respecting the inclusion or addition of the name of a person or their omission or deletion of their name from the Indian Register or a band list maintained by the Department. The Registrar responded she would consent to a 90-day investigation period “once all necessary documents were filed”. The appellant agreed and in 2019, sent the documents to a computer link provided [“Protest”].

Subsequently, the Registrar informed the appellant that she was unable to accept the Protest as valid. She stated the Registrar’s original decision to add the name of the appellant to Sechelt First Nation registry was rendered prior to September 4, 1951 and therefore the Protest was out of time. Her earlier response did not constitute a “decision” but was a request for evidence, therefore it could not be protested. She also confirmed the Department’s position was that Semiahmoo consent was required for all band transfers.

This application concerns whether the Court has jurisdiction to hear the appeal at this time. The Indian Act sets out the statutory framework that applies to a dispute of a “first-level” Indian Registrar decision. Once such a decision is made, a party is statutorily entitled to protest the decision to the Indian Registrar. Upon receipt of a valid protest, the Registrar investigates and renders a final and conclusive decision. It is from that decision an appeal to this Court may be taken, not earlier.

The Registrar stated she could not accept the Protest as a valid protest, noting that the request for more evidence was not a decision or a denial of the application but merely a request for evidence, including the Semiahmoo BCR. The Indian Act provides a process to determine band status. As a complete code, the Indian Act must be complied with before it can be appealed (Baptiste v Canada (Registrar of Indian & Northern Affairs), 2000 SKQB 296). The Registrar is the “master of its own procedure” and can solicit information as they see fit in conducting the investigation.

The Court is satisfied that the earlier Registrar’s responses are not “decisions” as described by the appellant. The letter in 2018 did not make a decision as no BCR had been provided from Semiahmoo. It requested that it be provided. Nor did the letter in 2019 make a decision under s 14.2 of the Indian Act. Given the expiration of time from the 1951 decision, and that the 2018 response was neither a decision nor a denial but rather a request for information, the Protest of that letter was not a valid protest. That right to protest requires that the individual is added, omitted or deleted from an Indian Register or Band List.

In other words, a determination has been made. In this instance that did not occur until 2019, when the Registrar concluded that the appellant was not entitled to be a member of the Semiahmoo Band pursuant to s 11 of the Indian Act. As a result, the right to protest arises. The appellant was advised of that right, but has chosen not to do so. The right of appeal arises after the Registrar has ruled on a protest. This Court does not, at this time, have jurisdiction as the appeal is premature. The appeal is stayed.

West v Cold Lake First Nations, 2021 CHRT 1

Posted on February 2, 2021 by thp151

Complaint dismissed in its entirety. A Cree woman and member of Cold Lake First Nations, submitted a complaint to the Canadian Human Rights Commission that she was discriminated against contrary to her race, national or ethnic origin and family status in rejection of her band council nomination. Further, she submitted that the Nation retaliated due to her filing this complaint, by reassigning her daughter’s future house to another member of the Nation.

Indigenous Law Centre – CaseWatch Blog

In 2016, Bonnie West, a First Nations Cree woman and member of Cold Lake First Nations [“CLFN”], attempted to stand for election as councillor to sit on the CLFN band council. Her nomination was rejected by the elections officer, and Ms. West filed a complaint with the Canadian Human Rights Commission, which was referred to the Tribunal in 2019. She alleged that she was discriminated against contrary to section 5 of the Canadian Human Rights Act [“CHRA”] in the provision of services by the Nation on the grounds of her race, her national or ethnic origin, and her family status. Ms. West has also amended her complaint, adding an allegation of retaliation by CLFN, contrary to section 14.1 of the CHRA. Her daughter was not given access to a new house in the community, in contrast to what had been planned. Ms. West believes that CLFN acted in this manner in retaliation against her filing her complaint.

CLFN is a First Nations community in Alberta with a population of about 3,000 members both on and off the reserve. In 1986, CLFN adopted the Cold Lake First Nations Election Law [“1986 Election Law”], which was approved by order of the former Minister of Indian and Northern Affairs. In the 2016 election for CLFN’s chief and band council, a member of the Nation nominated Ms. West to run for election as a councillor on the band council. After she was nominated, another member of the Nation protested Ms. West’s nomination. The protest alleged that Ms. West was not a direct descendant of original treaty citizens, contrary to the 1986 Election Law. The elections officer at the time had to consider the matter and determine whether Ms. West fulfilled the requirements.

Even though the 1986 Election Law does not clearly stipulate what is meant by “original treaty citizens”, the evidence establishes on a balance of probabilities that this expression refers to the signatories of Treaty No. 6. He asked Ms. West to provide him with a document, specifically an affidavit supporting her nomination, within 48 hours. Ms. West filed a short sworn statement with the elections officer, in which she declared before a commissioner of oaths that she was eligible to stand as councillor given that she was a direct descendant of original treaty citizens. The evidence reveals that no other documents were submitted, such as Ms. West’s family tree or the document confirming her North American Indian Blood Quantum as she did at the hearing. The elections officer found that Ms. West did not fulfill the requirements. After receiving the elections officer’s decision by email, she asked him which additional documents were needed to establish that she could stand as a candidate for election. The evidence reveals that Mr. Adam did not answer her question.

Ms. West is challenging the rejection of her nomination, which resulted from the verification of whether she met the eligibility criteria set out in the 1986 Election Law. In applying the 1986 Election Law and the candidate eligibility criteria, the officer was merely ensuring that Ms. West met or complied with the criteria established by the Nation when it created and passed its own election law. Therefore, it appears that Ms. West’s challenge is more an issue with the 1986 Election Law itself and its selection criteria (Forward v Citizenship and Immigration Canada, 2008 CHRT 5).

In this matter, the band council exercised its authority by enacting its own 1986 Election Law within its jurisdiction, which falls within the federal sphere (Francis v Mohawk Council of Kanesatake, 2003 FCT 115 (CanLII)). The fact that the Department of Indian Affairs and Northern Development allowed CLFN, by order in council, to adopt its own election law does not render the 1986 Election Law immune from scrutiny under the Charter (Ratt v Matchewan, 2010 FC 160 [“Ratt”]; Taypotat v Taypotat, 2013 FCA 192). The type of challenge Ms. West has brought should have been brought in the right forum, the Federal Court. The Federal Court has jurisdiction over the officer’s actions as well as over matters relating to the Nation’s elections (Ratt; Ballantyne v Nasikapow, 2000 CanLII 16594 (FC)). This jurisdiction of the Federal Court also extends to reviews relating to the application of the Charter and section 15, regarding equality rights.

Ms. West alleged that she was a victim of retaliation under section 14.1 of the CHRA. The preponderance of evidence does not support Ms. West’s claims. Her daughter lives in the CLFN community and she was informed by a consultant for the Nation that she was to receive a house to replace the one she was living in. Reasons for reassigning the house to another member of the community were provided and were credible.

R v Young, 2021 BCPC 6

Posted on February 1, 2021 by thp151

An offender, charged with possession of cocaine for the purposes of trafficking, is non-Indigenous but resides in a small isolated First Nations community, and identifies as Haida. The Court, after weighing the evidence and the principles of sentencing, applied a restorative justice approach, and determined that a one-year period of incarceration followed by two years’ probation is a fit sentence.

Indigenous Law Centre CaseWatch Blog

In 2018, the RCMP received an anonymous tip regarding the drug trafficking activities of Frank Young and his wife Roberta Young, who reside in Skidegate, a small isolated First Nations community. After surveillance on the Young’s, police officers subsequently attended the residence and Mr. Young was arrested. Various types of drug paraphernalia was seized, including cocaine that would have been sold, at a minimum, for a total price of between $6,720 and $8,400. In 2019, Mr. and Mrs. Young were jointly charged with a single count of possession of cocaine for the purpose of trafficking. Mr. and Mrs. Young both entered pleas of “not guilty” in court in 2020, however, Mr. Young changed his plea from “not guilty” to “guilty”.

Mr. Young is not biologically Indigenous, nor a member of the Skidegate Band and he is not a citizen of the Haida Nation, although he considers himself Haida. Mr. Young described his childhood as being “normal.” Mr. Young met his wife in 1978 and were married in 2000 and stayed together until recently, when Mrs. Young left him. Together they have four children now adult ages. Mr. Young considers himself a high functioning addict, who was able to sustain a long career and raise a family without criminal issues.

As an adult, Mr. Young developed a drug habit and his social peers became mostly other drug users. He began using cocaine in his mid-20s, consuming half a gram to one gram of powder cocaine every weekend. Mr. Young has a dated criminal record that is not particularly relevant to this sentencing, given the time that has passed and the nature of the three convictions. Mr. Young experienced some difficulty with his addictions during his career, but maintains having control over it. The Deputy Chief Councillor for the Skidegate Band Council, has known Mr. Young for in excess of ten years and directly contradicts Mr. Young’s statement that he never sold drugs to children. He states that even while Mr. Young was working, there are three main families that traffic drugs in Skidegate, with Mr. Young’s family being one of them.

There is nothing to equate Mr. Young’s life experience with that of the Haida people specifically or Indigenous peoples in Canada generally. Mr. Young’s circumstances are not unique from those of other non Indigenous offenders. There is nothing in his personal circumstances, or in the manner Mr. Young committed the offence, that leads to the conclusion that Mr. Young’s moral blameworthiness is lessened due to systemic factors or individual Gladue factors. Just because an offender who is not biologically Indigenous self-identifies as Indigenous does not mean that they are entitled, as a matter of law, to have the sentencing judge consider them an Indigenous person for purposes of s. 718.2(e) and the Gladue analysis (R v Antoine, 2017 BCPC 333; R v Lawrence, 2018 BCSC 1319; and R v Kreko, 2016 ONCA 367).

In the sentencing context for the non-biologically Indigenous offender who self-identifies as Indigenous and seeks the benefit of s. 718.2(e) and the Gladue analysis, a number of factors are considered. Although Mr. Young is not an Indigenous offender, it is appropriate to consider a restorative justice approach to his sentencing, albeit it in a modified form. With respect to Indigenous communities, restorative justice ensures that the offender’s sentencing reflects an understanding of the specific First Nations’ cultures, traditions, and hopes for the future. It also means addressing local issues by engaging with the local community. The Community Impact Statement presented on behalf of the Skidegate Band Council served the purpose of enlightening the Court about the local community and allowed the victims of drug dealing and drug addiction in Skidegate a say in the outcome of Mr. Young’s case.

Based upon the entirety of the evidence, Mr. Young falls within the category of busy retail seller or full-time commercial operation. Mr. Young’s moral blameworthiness is at the highest end of the spectrum. The uniqueness of Mr. Young’s situation allows for a significant reduction of sentence from 18 month’s incarceration. However, there should not be a reduction with regard to the two years’ probation, despite the ongoing COVID-19 pandemic, as it will not negatively affect Mr. Young’s health issues, warranting a shorter period of probation (R v Reimer, 2020 BCCA 102). A one-year period of incarceration is a significant reduction from 18 months incarceration, and followed by a two-year period of probation, it is the minimum sentence that the Court can impose. Any lesser sentence would be unfit.