Tag Archives: First Nations

Hall v Kwikwetlem First Nation, 2020 FC 994

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The Court allowed an application for judicial review of a decision of two Kwikwetlem First Nation Councillors to remove the applicant, Chief Hall, from his elected office as Chief. At the core of Chief Hall’s removal was his disclosure of a forensic audit report in relation to mismanagement of resources, fraud, and breach of fiduciary duty. The decision was procedurally unfair due to a failure to provide notice and an opportunity to be heard. It was also unreasonable in various respects, including the harshness of their use of termination as a remedy. 

Indigenous Law Centre CaseWatch Blog

The Kwikwetlem First Nation [“KFN”] is the band government of kwikwəƛ̓ əm, a people living in Coquitlam, British Columbia. The KFN adopted, by ratification, a custom election code and governance by its Chief and Council [“Election Code”]. In addition to this Election Code, there is a document in existence approved by Council but yet-unratified entitled Kwikwetlem First Nation Chief and Council Code of Ethics [“Ethics Code”].

This judicial review is for a decision [“Decision”] made by two KFN Councillors to remove the Chief [“Applicant”] from his elected office. The conflict regards the disclosure of certain Band business affairs and whether the Councillors individually or collectively can instruct the Chief on what he sees as his duties as Chief. Pursuant to the Election Code, the Chief is to carry out the business of KFN in accordance with a vision document and is the spokesperson of KFN. The Chief or any Councillor may be removed from office if two Council members vote in favour of a resolution. However, the Court notes that neither the Election Code nor the Ethics Code are models of clarity, as the lines of authority and governance are not clear.

The Applicant had run his 2019 campaign for the position of Chief on a platform of increased transparency and accountability regarding KFN’s governance and business dealings. A key part of his mandate was the engagement of forensic auditors to investigate possible mismanagement by the former Chief and his administration. There was a disclosure by the Applicant of a forensic audit report which revealed questionable conduct of certain officials and employees of the KFN including those of a former chief.

At the same time as the forensic audit, the Applicant was engaged in a dispute with the two KFN Councillors about numerous Band matters, in particular the issue of transparency of the audit results. The same day that the forensic auditors indicated that they would make a presentation reporting on the prior mismanagement of KFN, the Applicant received a letter of suspension of one week without pay alleging dishonesty, disclosure of confidential information, conflict of interest and inappropriate treatment of staff.

Upon a subsequent hearing that the Applicant attended under protest, he addressed each of the allegations in an affidavit with documents in support, answered questions and provided oral and written submissions based on the evidence provided and allegations made. He denied the allegations as being untrue, raised procedural fairness concerns including that the Councillors had predetermined the matter, and that the punishment of removal, in any event, was unjustified. After the hearing was concluded, the Councillors issued their decision to remove the Applicant from office, effective immediately.

The nature and extent of the procedural fairness applicable is dependent on the circumstances and dependent on the factors (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817). A high standard of justice is required when the right to continue in one’s profession or employment is at stake (Kane v Board of Governors of UBC, [1980] 1 SCR 1105). The Election Code is silent on this aspect of the removal provisions but procedural fairness applies in this situation (Sparvier v Cowessess Indian Band, [1993] 3 FC 142).

Compliance with procedural fairness norms “went off the rails” when the Councillors took a break during the hearing, met secretly with a witness and obtained new evidence, thereby attempting to change the hearing. The conduct of the hearing and the post-hearing do not accord with procedural fairness. On this ground alone this judicial review should be granted.

The standard of review of the Decision in respect of the merits is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65). Part of the dispute between the Chief and the Councillors is the view held by the Councillors that they can dictate to the Chief, individually or collectively, outside of a Chief and Council meeting and the Band Council Resolution process [“BCR”], what he should do and how he should carry out his functions. There is nothing in the Band Council Mandate of the Election Code that speaks to that kind of control over the Chief.

At no time did the Councillors pass a BCR directing the Chief to do or refrain from doing anything, much less directing the Chief to keep the forensic audit results confidential from the community. In the Decision, the Councillors purportedly found the Applicant’s conduct contrary to s 7.3 of the Election Code. That provision contemplates events of gross misconduct, corrupt practices in connection with Council business, illegal or improper appropriation of KFN funds, corrupt election practices and so on. It is unreasonable to conclude on these facts that the Applicant committed any of these acts.

Absent a BCR, it was unreasonable to conclude that the Chief did not have at least a role as the spokesperson for the First Nation in determining what disclosure should have been made of the forensic audit results. The use of the termination remedy is disproportionately harsh and is unreasonable. The Councillors were not protecting the community from an individual engaged in corrupt practices, but instead were attacking a Chief who had a different view from theirs of what was in the best interests of the community. The Decision is quashed, and the Applicant is to be reinstated to his position as Chief and is entitled to costs.

Foxgate Developments Inc v Doe et al, 2020 ONSC 6529

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The Court issued a permanent injunction in favour of Foxgate Developments and Haldimand County to prevent interference with work on a land development known as McKenzie Meadows or any blocking of thoroughfares within Haldimand county. Pleadings filed by Skyler Williams were struck and he was not allowed to participate in the proceedings based on his defiance of prior injunctions. The Court held that Mr. Williams had no authorization to assert Aboriginal rights in this proceeding and found no evidence of objections being raised by any Indigenous groups about the planned subdivision. Mr. Williams was ordered to pay over $160,000 in costs to the applicants. 

Indigenous Law Centre CaseWatch Blog

Foxgate Developments Inc. [“Foxgate”] is a private corporation that is engaged in a land development known as McKenzie Meadows in the County of Haldimand [“Haldimand County”]. These Applicants have been granted and extended interlocutory injunctions, among other things, to prohibit anyone from attending on the subject land without the permission of Foxgate or their agents. The injunctions also prohibited any persons from preventing Foxgate or any of their partners and their agents from working on the development of the approved subdivision. With respect to the Haldimand injunction, no person could block any of the thoroughfares within the jurisdiction of Haldimand County.

During the course of previous hearings of the interlocutory injunctions, Skyler Williams was found to be the leader of protesters who are occupying the subject property, damaging public and private property, and blocking access to public roads. There was no evidence before the Court that Mr. Williams was authorized to represent any Aboriginal or Indigenous group in order to advance a land claim, nor did any Aboriginal or Indigenous group ever sought status to make any land claim in this court action.

Since Foxgate is a private corporation, there is no duty to consult any Aboriginal or Indigenous groups. That duty lies with the Crown in appropriate circumstances. Nevertheless, Foxgate did reach out the Elected Council of the Six Nations of the Grand River. They were not only given an opportunity to have input and express any objections, they entered in an agreement titled “Definitive Agreement”, that has been referred to by the Six Nations of the Grand River as the “Accommodation”. At no time were there any objections made by any Indigenous group about the planned subdivision. In this case, the title given to Foxgate was traced back to the Crown Patent.

Mr. Williams and the protesters have continued to act in such a manner that reflects a willful and complete disregard for the law and the orders of this Court. The activity in and around the highway and streets of Caledonia turned violent. Among other things the protestors threw construction skids, and large truck or tractor tires on the highway from the overpass above the highway. They lit the tires and other large objects on fire. They also lit large heavy equipment on fire. Thick toxic smoked bellowed into the air within the community of Caledonia. Rocks were thrown at the police and their vehicles. Rocks were also thrown at fire department first responders to prevent them from putting the fires out. Their actions demonstrate a complete disregard for the serious and negative consequences of their actions on the community. The escalation of their violent behavior is often followed by Mr. Williams’ projected blame for the violence on others.

This Court gave Mr. Williams an option to reinstate himself and advance any legitimate claims that he wanted to if he complied with the orders of this Court. Foxgate sent him a letter that made it clear that if he chose vacate the subject property, in compliance with the Orders of the Court that Foxgate would assist him in their negotiations with the respective levels of government in regards to compensation they were seeking. There was no reply to Foxgate’s offer. Mr. Williams pleadings are struck. Foxgate and Haldimand County seek to proceed on their request for a permanent injunction. The issue of the permanent injunction shall proceed.

Substantial indemnity costs are appropriate unless the successful party in any way acted unreasonably, in which neither Foxgate nor Haldimand County have. Mr. Williams, however, acted in bad faith. He and the other unknown defendants took the law into their own hands and used self-help to achieve their goals. Mr. Williams openly admitted that he was in contempt of the Court’s orders and if a permanent injunction was granted, he would not comply. The importance of the issues to Foxgate and Haldimand County cannot be overestimated. Substantial sums of money have been invested and many lives have been put on hold due to the conduct of Mr. Williams and the other unknown defendants.

Aseniwuche Winewak Nation of Canada v Ackroyd LLP, 2020 ABQB 666

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The defendant law firm’s application for summary dismissal of a professional negligence action against them, is dismissed. The negligence claim arises from the defendant law firm’s failure to prosecute the plaintiff First Nation’s land claim, leading to dismissal of the action for long delay.

Indigenous Law Centre CaseWatch Blog

This application for summary dismissal of a professional negligence action is based on a limitations argument. The underlying lawsuit was about status, recognition and compensation to the Aseniwuche Winewak Nation, that consists of the descendants of those persons expelled from Jasper National Park at its inception. The underlying lawsuit was ultimately dismissed for long delay by a majority in the Court of Appeal (Canada (AG) v Delorme, 2016 ABCA 168). The Applicants argue that the limitation clock started with the applications to dismiss, not from the Court of Appeal Decision.

Part of the reason for the delay was because a conflict had developed within the firm which impaired their ability to prosecute the action. The Court held that the limitation period for suing the defendant law firm for professional negligence began to run when a majority of the Court of Appeal decided to dismiss the land claim action for long delay, not the date on which that application to dismiss was first filed.

 

 

 

 

SL (Re), 2020 ABPC 194

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The Court rejected a mother’s application for a hearing on the alleged non-compliance of the Director of Children’s Services with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 in context to an application for a Temporary Guardianship Order over her five children. She alleged the Director failed to provide notice of the apprehension to her and the Indigenous governing body of her children. The Court found it impossible to ascertain who or what comprises an Indigenous governing body and held there was no factual basis or statutory authority for the application.

Indigenous Law Centre CaseWatch Blog

The Director of Children’s Services [“Director”] has applied for a Temporary Guardianship Order [“TGO”] with respect to five siblings. There has been a long-standing history between the family and Children’s Services dating back to 2008. Concerns centered around substance abuse and domestic violence.

In 2020, police responded to the family’s home after being alerted to domestic issues between the parents who had engaged in a night of drinking. Ten days after a safety plan was put in place requiring the parents to remain sober, the police once more attended the home. The parents and one of the adult sons were found to be intoxicated and displayed aggressive behaviour towards the officers who responded to complaints. At the time, all five children were present in the home and were apprehended as there was no sober adult who was able to care for them.

Four days after the apprehension took place, the Director served the Dene Tha band designate with formal notice of its application for an Initial Custody Order, as well as a TGO. To date, no one has appeared on behalf of the band designate. The parents consented to an Order for Initial Custody. Both were represented by counsel at the time. The substantive application for a TGO remains outstanding.

The mother has now asked the Court for a hearing to rule on the Director’s alleged non- compliance with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 [“Act”]. Her concern relates to the alleged failure of the Director to provide notice prior to the emergency apprehension of the children.

The Child, Youth and Family Enhancement Act [“CYFEA”] is provincial legislation enacted by the Government of Alberta. While large swaths of the legislation confer power to the Provincial Court in granting certain orders, the Provincial Court does not have exclusive jurisdiction over every aspect of the CYFEA. In the case at bar, the Director’s substantive application seeks temporary guardianship of the children, thereby the Court has jurisdiction over this matter.

The Act is federal legislation which applies to Indigenous children in the care of the Director. The federal legislation does not articulate what remedies, if any, are available when a party is non-compliant with or in breach of the statute. Similarly, the CYFEA does not set out what consequences may arise if the Director fails to provide notification of a child’s apprehension. The CYFEA does permit an individual who is affected by a decision of a director to request a review. If the guardian is dissatisfied with the Director’s review, they may appeal to the Appeal Panel and thereafter to the Court of Queen’s Bench (RP v Alberta (Director of Child Youth and Family Enhancement), 2016 ABQB 306).

It would appear that the mother did, in fact, have notice that the children were to be apprehended as she was present at the time that the police made its decision. The federal legislation does not specify how or in what form the notice should be given. As such, oral notice is sufficient given the circumstances of this case. Any requirement of notice pursuant to s 12 of the Act must always consider the best interests of the children. In instances where law enforcement is required to respond in the middle of the night and finds that children are in harm’s way due to the condition of the parents, the primary principal step taken by peace officers must always be to protect the said children. Such a step is consistent with the children’s best interests.

As well, the Court finds it impossible to ascertain who or what comprises an Indigenous governing body. The children belong to the following Indigenous governing bodies: Dene Tha First Nation in Alberta; Frog Lake First Nation in Alberta; Witchewan Lake First Nation in Saskatchewan; and Onion Lake first Nation in Saskatchewan. The term Indigenous governing body is defined in s 1 of the federal legislation as a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.

Neither legislation provides any guidance on how determination of a child’s band affiliation is made, which is integral to the Director’s ability to identify which Indigenous governing body or bodies should be contacted. The Act does not address instances where a child has hereditary connections to several bands, nor on the required strength of any hereditary connection. In this case, the Dene Tha band designate has not appeared in Court, nor made any representation despite the provision of notice to it. The mother has not provided any additional information, including which children belong to which bands; the manner of the connection; or whether any of the children belong to more than one band. Jurisprudence on this topic provides limited guidance to the case at bar. If the Indigenous governing body wishes to participate, it would need to satisfy the Court that it is in fact authorized to act on behalf of the group, community or people. The mother has failed to establish any nexus between her rights and those of an Indigenous governing body.

JEO v MD, 2020 ONSC 6106

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The Court dismissed an appeal from a customary care provider seeking sole custody of a child with access to her natural parents at the care provider’s discretion. Under the Child, Youth and Family Services Act, 2017, Customary Care Agreements are to be preferred even to child protection proceedings in the case of Indigenous children. It would be inconsistent with this regime to allow an individual to bring a custody application that could result in a court order collapsing such an agreement, thereby disregarding the voluntary parental participation and Indigenous community input that defines it.

Indigenous Law Centre CaseWatch Blog

 This appeal concerns the intersection between a Customary Care Agreement [“CCA”], and the application by an individual for custody of a child under the Children’s Law Reform Act [“CLRA”]. The Appellant seeks to lift the stay imposed by the motion judge on her application under the CLRA for sole custody of an Indigenous child, with access to the child’s natural parents at the Appellant’s discretion. The errors that the Appellant alleges mainly focus on the motion judge’s use of s 103 of the Child, Youth and Family Services Act, 2017 [“CYFSA”] as the authority for the stay that was imposed.

Kina Gbezhgomi Child and Family Services [“KGCFS”] had been involved with the child’s parents since 2000 because of issues relating to domestic violence and substance abuse. Older children of the parents were being cared for by a relative in the community. Two other children were made Crown wards in 2009. In 2013, the mother’s file was reopened when KGCFS was advised that she was pregnant again.

Once born, the child was apprehended by KGCFS, which brought a protection application and placed her in the Appellant’s home for fostering. The Appellant is married to the child’s paternal great uncle. In 2014, a Wikwemikong Band Council Resolution was passed, resolving that the child would be in the care of the Appellant. This was done by Wikwemikong Unceded Indian Reserve [“Wikwemikong”], the child’s First Nation, in “exercising its inherent authority and responsibility for the care of children of their community” and so that KGCFS could grant the Appellant a subsidy for care according to the custom of the Band/First Nation.

 A CCA was made and came into force in 2015. As a result, the protection proceeding that had been initiated was withdrawn. Parties to the CCA are the mother, the father, Wikwemikong, the Appellant, KGCFS, and the Children’s Aid Society. The CCA was described as a “Long-Term” CCA which could be in effect until the child reached the age of 18 years. The CCA states that the Appellant, who is a Wikwemikong resident, is to be the “customary care provider.” She is given authority to consent to medical, surgical, dental, educational, psychological or diagnostic treatment and anesthetic care that a qualified medical or dental practitioner might recommend.

In 2018, the Appellant brought an application for full custody of the child under the CLRA, stating concerns with the parents. KGCFS may have had some concerns relating to the Appellant, but she had been working with them on a voluntary basis and that she wanted to terminate the CCA. The motion judge considered various sections of the CYFSA relating to the protection of First Nations, Inuit and Metis children. He reasoned that if a CCA was entered into, then it would be by agreement, and should be accorded deference as “a complete code for the resolution of child protection cases in appropriate circumstances.” The motion judge read CCAs into s 103 of the CYFSA as a valid reason for a stay of a custody application under the CLRA, as to conclude otherwise would be to diminish the importance of CCAs. To permit the custody application to continue would also invite the court to disregard the intent of the parties in setting up the CCA, which constituted a voluntary meeting of minds.

 The motion judge stayed the appellant’s CLRA application for custody pursuant to s 103 of the CYFSA, and is subject to a correctness standard on appeal (Housen v Nikolaisen, 2002 SCC 33). To assess the order made by the motion judge, the terms of s 103 of the CYFSA must be considered, its purpose, and legislative intent in child welfare legislation. Section 103 of the CYFSA dictates the pre-eminence of child welfare legislation, where child welfare proceedings have begun or an order has been made in those proceedings, and a person seeks custody under the CLRA. This section underscores the well-established principle that child protection legislation will take precedence over the jurisdiction granted to courts by other provincial legislation dealing with matters of custody (Fortowsky v Roman Catholic Children’s Aid Society of Essex (County), [1960] OJ No 600 (CA)). Section 103 protects the integrity of the child welfare placement by ensuring that no other court can substitute its decision for that of the child protection court (Children’s Aid Society of St. Thomas and Elgin County v CZ and JH, [2003] OJ No 4177 (CA)).

CCAs act as an alternative to child protection proceedings and serve as an expression of Indigenous community values in the sphere of child protection. In the circumstances of the CCA in this case, it would have been appropriate to exercise the court’s discretion to stay the CLRA application. That is not to say that any and all CCAs will equally merit the protection of the court against CLRA applications. The motion judge, however, committed no error in imposing a stay of proceedings on the Appellant’s CLRA application.

R v Wentzell, 2020 NSPC 20

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The Court sentenced an Indigenous offender who stabbed her significant other, to a global sentence of a suspended sentence with a period of probation for three years with conditions. This sentence provides the best mechanism for assuring that the offender continues on her path towards a pro-social lifestyle. Society’s protection is best assured by the continued supervision and encouragement of the offender’s efforts and progress in her rehabilitation.

Indigenous Law Centre – CaseWatch Blog

Ms. Jennifer Wentzell is a 38-year-old woman of Mi’kmaq ancestry and a member of the Gold River First Nation. One night, when intoxicated, she uttered a threat to kill and then subsequently stabbed her significant other. The use of a knife and a resulting penetrative wound to the victim coupled with Ms. Wentzell’s prior criminal record must have a sentenced imposed that is proportionate to the gravity of the offence and the degree of responsibility of Ms. Wentzell.

A Gladue Report was prepared in 2019, and a sentencing circle was held in the Gold River community in 2020. At the sentencing circle, two videos were viewed regarding the events that led up to the altercation, including Ms. Wentzell being told her body was gross and some physical altercations between the couple. The victim in this matter declined to provide a Victim Impact Statement or participate in the sentencing circle.

Ms. Wentzell’s life has been marred with instability, poverty, homelessness, and a lack of education and employment opportunities. She has experienced domestic violence, sexual abuse, and the involvement of the child welfare system. She has suffered from addictions to alcohol and drugs, along with intergenerational trauma as result of the legacy of the residential school system, discrimination and colonization. She has three children from two long term relationships.

Ms. Wentzell has been attending programming at Holly House, which is run by the Elizabeth Fry Society. Ms. Wentzell has been engaging in individual addictions counselling. She has attended the Rising Sun Treatment Rehabilitation Centre on two occasions and has plans to attend again for the relapse prevention program. She has attempted to reduce her consumption of alcohol. Her plan going forward is to continue with counselling for addictions and healthy relationships. She also will be attending sweats on a regular basis and is working towards long term sober living. She would like to continue her education by attending the Nova Scotia Community College in a trades program and find part time employment.

Ms. Wentzell was involved in a volatile and abusive spousal relationship. The victim’s prior treatment, assaultive and degrading behaviour towards Ms. Wentzell along with her intoxication and impulsive reaction to the events must be taken into consideration. These events in addition, to Ms. Wentzell’s prior history of trauma and experiences of an Indigenous person, reduce her moral culpability in these offences.

The long-term protection of the community requires that Ms. Wentzell’s efforts be acknowledged and that she be allowed to continue on that path without interruption. It is hopeful that she will be able to show the community, by her example, that there is life beyond addiction and involvement in the Criminal Justice System. A suspended sentence with a significant period of probation was the reasonable alternative to incarceration in this case and is of significant consequence to Ms. Wentzell.

R v LC, 2020 MBPC 38

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Sentence confirmed. There is not enough evidence from the Indigenous offender that discloses progress substantial enough to enable a justification on the variation on her sentence of secure custody. The plan for supervision for this offender is insufficient to promote her rehabilitation and reintegration into society.

Indigenous Law Centre – CaseWatch Blog

In 2018, LC was sentenced to secure custody for forty months to be followed by conditional supervision for twenty three and one half months upon her guilty plea to second degree murder. Following an annual review that confirmed that sentence to continue without change, this proceeding is the second annual review pursuant to s 94 of The Youth Criminal Justice Act [“YCJA”].

LC seeks an end to her incarceration so that she can return to her First Nation community and take steps to enroll in University of Manitoba. She would have strong family support from three sources: her mother and grandmother, who have been in court for all of the proceedings and with whom she has had visits, as well as her preschool son whose guardian is presently the youth’s mother.

Since the last review, this youth has taken steps to remove negative influences which were a concern in the last review. She has ended troubling relationships with her son’s father and with a friend who had a tangential participation in the matter for which she is serving her youth sentence. LC has applied for, and has been involved in, an ongoing program offering support to Indigenous offenders. Although her conduct at both institutions that she has served at has not been without fault, she has completed high school and is eligible for university entrance. She was described as a role model for others and is trusted with a job in the laundry.

LC struggles with self-acceptance and thinks often of how to fit in with her peers. She’s very sensitive to criticism and internalizes what others say to her or about her. She has a tendency towards people pleasing and will give up her own values to gain acceptance from others. This is to be expected given her age and life experiences. The Healing Plan  includes appropriate cultural and spiritual activities to address this, including continued group attendance and continuing with Elders upon release and “spiritual guidance as requested”. It identifies jail tattooing with a history a self-harm and recommends appropriate education. The Plan does not specify how these resources would be provided, maintained and supervised. The young person seeking supervision instead of incarceration bears the onus of proof and it is not the burden of proof beyond a reasonable doubt (R v H(D), 2008 ONCJ 78; R v Z(AA), 2013 MBCA 33).

It is determined that LC still does not appreciate the significance of her consequences; she is serving the maximum YCJA sentence for taking a life. It is to be hoped that she continues working on this. The evidence does not disclose progress substantial enough to enable a justification on the variation sought. The plan for supervision for this offender is insufficient to promote “her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public” (YCJA, s 38(1)). Although there have been changes in her life, they are not changes that are material to what led to second degree murder. The sentence is therefore confirmed.

Blois v Onion Lake Cree Nation, 2020 FC 953

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The Court granted an application for judicial review, quashed Onion Lake Cree Nation’s decision to terminate the appointment of its Appeals Tribunal, and ordered its reconstitution to hear the Applicant’s election appeal. Onion Lake members decided to codify their customary governance laws and nothing in their written laws allows for termination of the tribunal. The decision was also subject to procedural fairness since it was specific to the outstanding election appeal; as it was made without notice, procedural fairness was breached. 

Indigenous Law Centre – CaseWatch Blog

The members of Onion Lake Cree Nation [“OLCN”] passed the OLCN Convention Law [“Convention Law”] by community referendum in 2011. Amongst other things, the Convention Law empowers the OLCN Chief and Council to establish boards, commissions and committees as necessary for peace, order and good governance and to pass laws, regulations and codes. The members of OLCN passed the Onion Lake Election Law [“Election Law”] which came into effect in 2017. The Chief and Council subsequently passed the OLCN Appeals Regulation [“Appeals Regulation”]. Pursuant to the Election Law, an appeals tribunal [“Appeals Tribunal”] was appointed in advance of the upcoming Election.

This is an application for judicial review of a decision by the OLCN Chief and Council terminating the appointment of the Appeals Tribunal prior to the completion of its consideration and determination of an appeal of the 2018 OLCN [“Election”]. The Applicant, Florence Blois was an incumbent but unsuccessful candidate for councillor in the Election. The Applicant submitted to the Appeals Tribunal setting out various allegations. The Appeals Tribunal decided to accept the Applicant’s appeal but there were apparently concerns with the conduct of the appeal. The Applicant submits to this Court that the OLCN Chief and Council did not have the jurisdiction or authority to terminate her appeal.

By way of the Convention Law, the members of the OLCN chose to codify into writing the rules for establishing, empowering and regulating their institutions of government. OLCN effected a government (or executive) branch, the elected Chief and Council; the Elders Council to provide spiritual guidance; and a Judicial Assembly Commission.

Nothing in the Appeals Regulation speaks to the termination of the Appeals Tribunal prior to the completion of its term. That is, nothing in the Convention Law, Election Law or the Appeals Regulation provides authority to the Chief and Council, in any circumstance, to intervene in an appeal and dissolve the Appeals Tribunal before the Appeals Tribunal makes a decision in an appeal that is before it. If the legislative scheme suggested that the OLCN Chief and Council had the authority to disband the Appeals Tribunal before the expiry of its specified term, for any reason, and instead substitute its own finding, then this authority would have been clearly stated. This is demonstrated by the fact that the conduct of OLCN election appeals is exhaustively covered by the Election Law and Appeals Regulation.

Jurisprudence from the Federal Court of Appeal and this Court suggests that there must be clear legislative authority to remove appeal committee or council members (Johnson v Tait, 2015 FCA 247; Angus v Chipewyan Prairie First Nation, 2008 FC 932). It is clear that the Appeals Tribunal, as an independent body, holds a discreet and exclusive role in the conduct of election appeals, and the term of the appointment of that body is explicitly stated to start at appointment and not to terminate until an election appeal is decided.

The Court concludes that the OLCN Chief and Council did not have the authority to terminate the appointment of the Appeals Tribunal and, thereby, the Applicant’s appeal. Accordingly, that decision was unreasonable.

Cowichan Tribes v Canada (AG), 2020 BCSC 1507

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

Indigenous Law Centre CaseWatch Blog

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

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

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

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

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

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

Kina Gbezhgomi Child and Family Services v MA, 2020 ONJC 414

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Reply

The Court ordered that four children be placed in the care and custody of their mother on terms of supervision. Among other things, the Court accepted that evidence of Indigenous kinship traditions, cultural norms, and laws is relevant, and that grandparents play an important role in Anishinaabe families, but was satisfied the mother could resume her own responsibilities under Anishinaabe traditions. 

Indigenous Law Centre CaseWatch Blog

The Applicant, Kina Gbezhgomi Child and Family Services [“Society”], brought a motion for an order to place four children of various ages into the care of the paternal grandparents, subject to the supervision of the Society. The mother has opposed the Society’s motion under the Child, Youth and Family Services Act [“CYFSA”] and asked the Court for an order placing the children in her care.

The Society’s propose placement with the paternal grandparents because they continue to have protection concerns regarding the mother, such as health issues, specifically addictions, and her lack of cooperation with the Society. Concern of perceived lack of cooperation from the mother stems from her not having signed updated consents to verify certain information about her treatment efforts. The Society was not satisfied to have that information verified by her First Nation, with whom the Society has a protocol for service provision, and who was the service provider for at least some of the mother’s ongoing counselling.

The mother filed a sworn affidavit wherein she indicated that she is disappointed to the see the Society continue to resist a return of the children to her, even with supervision. The mother indicated that she has continued to access the support of Wiikwemkoong Unceded Territory as well as other services. Her lawyer conceded that the mother needs support, including financial assistance, but that the mother was prepared to accept that help, and that with the support of Wiikwemkoong Unceded Territory, the relationship between the mother and the Society could be repaired.

The Band Representative for Wiikwemkoong Unceded Territory, verified that the mother has completed treatment and continues to work towards pro-social and culturally-informed ways of managing her addictions. Wiikwemkoong supported the return of the children to the mother. While the grandparents could ensure access to the mother, Wiikwemkoong Unceded Territory and the mother submitted it should be the other way around. They argued that given the undisputed evidence that the mother and the grandparents work well together, the Court can be satisfied that the mother would ensure this transition is as easy on the children as possible by making sure they are seeing their grandparents frequently and regularly.

At a temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondent, it is more probable than not that they will suffer harm. Further, the Society needs to establish that the child cannot be adequately protected by terms and conditions of an interim supervision order (Children’s Aid Society of Ottawa-Carleton v T, [2000] OJ No 2273 (Ont Sup Ct)). Only after this burden is satisfied as against the party who had charge of the child before the intervention, can the Court look to other options, such as the placement of the children in another home, using a best interests test (Catholic Children’s Aid Society of Toronto v KS, 2020 ONCJ 268).

It is trite to say that as a result of a history that requires such remedial legislation, Indigenous families sometimes find it difficult to work with child welfare agencies. The United Nations Declaration on the Rights of Indigenous Peoples recognizes the importance of belonging to a community or nation, in accordance with the traditions and customs of the community or nation concerned. Courts need to consider evidence of the traditions, cultural norms and laws of the Indigenous community it is serving. It may be in some cases that where a child cannot be returned to their parent(s), courts will need to hear evidence about Indigenous kinship structures and the roles of grandparents in the communities they serve in order to make proper determinations on best interests.

The mother has been proactive in addressing the addiction issues that were the original basis for the Society’s intervention a year ago. The Court accepts evidence of Wiikwemkoong Unceded Territory that she is meaningfully engaged in services to address these concerns. The path to sobriety is often challenging and non-linear but she understands her wellness is linked to her ability to parent. She has satisfied the Court that she is committed to this, and to working towards a culturally-grounded understanding of her sacred role as a mother.