Tag Archives: First Nations

Tallcree First Nation v Rath & Company, 2020 ABQB 592

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The Court allowed an appeal from a Review Officer’s decision that a $11.5 million dollar contingency fee agreement for settlement of an agricultural benefits specific claim was reasonable. The Review Officer applied an erroneous standard of review to the agreement and ignored critical factors like how quickly and easily the settlement was reached and how minimal the work product was.

Indigenous Law Centre – CaseWatch Blog

This is an appeal from the Review Officer’s [“RO”] decision with respect to the Tallcree [“Tallcree”] First Nation’s Contingency Fee Agreement [“CFA”] entered into with Rath & Company and Jeffrey RW Rath [“Rath”] of Priddis, Alberta in 2015. The CFA before the RO was a result of an agricultural benefits settlement paid by the Government of Canada to Tallcree in the sum of $57,590,375. The 20% contingency fee amounted to $11,518,075.

Tallcree filed to request “a review of retainer agreement”. The RO determined that while the 20% contingency fee resulted in an extremely high fee never seen before, it was not one that was clearly unreasonable. Tallcree now appeals the RO’s decision. Given the sensitive nature of CFA’s with respect to vulnerable members of the community and their ability to access justice, amongst other reasons, the onus is on Rath to satisfy the Court that the CFA is fair and not unreasonable at the time it was entered into (MS v DM, 2014 ABQB 702).

The Court accepts that Tallcree was aware of the terms of the CFA, was aware as to the possible range of recovery, and was aware of the 20% fee that would accompany that general range of recovery between approximately $50 to $80 million dollars. However, Tallcree was unaware at the time of the CFA about how long such a recovery would take. How lengthy a process the settlement would take, and how quickly the settlement could be reached, were critical factors for Tallcree in determining the reasonableness of the CFA . Tallcree was in “dire economic circumstances” and needed the settlement monies “urgently on an Emergency basis”.

Tallcree argues that Rath withheld critical information from Tallcree at the time of the CFA that strongly suggested that the agricultural benefit settlement that they were seeking would be resolved favourably and quickly. While Tallcree’s previous legal counsel had filed formal claims for the unfulfilled Treaty promises related to agricultural benefits on behalf of Tallcree in 2012, the Court concludes that Rath was essentially only successful in settling those claims in short order after the CFA because of the change in Federal government. Rath would have been aware of this fortuitous change, as a fixed date election was legislated by S.C. 2000 c.9 to occur on October 19, 2015.

There were approximately 20 other First Nations who settled their agricultural benefits claims around the same time Tallcree did, represented by Rath or other legal counsel. These other similar settlements by Rath and other law firms establish that these settlements were clearly attainable at the time the CFA was entered into.

The RO’s decision that the CFA was reasonable because of the resulting fee “was not unexpectedly unfair” or “clearly unreasonable” on the facts in this case is not the same as determining the “reasonableness” of a retainer agreement. Accepting 20% as a minimal contingency fee ignored other factors critical in the determination of the reasonableness of the CFA, such as the actual time Rath spent on the file, and how quickly and how easily the settlement was reached. Most of the work product found in the record are actually simple emails created and signed by his paralegal. The RO’s decision constitute reversible errors. There is no proper legal basis or foundation for the RO to have limited or fixed his low-end minimum contingency fee amount at 20% of any amount recovered, which is why the RO’s decision resulted in an incredibly high legal fee that even he stated he had never seen before. Furthermore, the RO’s standard of “clearly unreasonable” is not the “correct” legal standard with which to review the CFA.

Laforme v Law Society of Ontario, 2020 ONLSTH 112

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Ontario’s Law Society Tribunal – Hearing Division granted Retired Justice Harry Laforme permission to appear as counsel in two class proceedings against Canada regarding drinking water advisories based on exceptional circumstances, including the enhancement of the administration of justice by allowing him to assist Indigenous communities with these specific proceedings. 

Indigenous Law Centre – CaseWatch Blog

The Honourable Harry S. LaForme [“Licensee”] is a retired judge of the Ontario Court of Appeal. He has applied for permission to appear as counsel before the Federal Court of Canada and the Manitoba Court of Queen’s Bench on two specific matters relating to access to clean drinking water on First Nation reserves.

The test for approval required by Rule 7.7-1.2 of the Rules of Professional Conduct [“Rules”] is onerous. The Licensee must establish that “exceptional circumstances” exist to grant approval and the hearing panel must also determine whether any restrictions should apply to the Licensee’s appearance as counsel.

The Licensee is Anishinabe of the Eagle Clan of the Mississaugas of the Credit First Nation in southern Ontario. In 1994, the Licensee was appointed a judge of the Ontario Court of Justice (General Division), which is now the Superior Court of Justice. He was one of the first Indigenous judges appointed to this level of trial court in Ontario, and only one of three in Canada.

OKT and McCarthy Tétrault LLP [“McCarthys”] are jointly representing three First Nations in their class actions against Canada regarding drinking water advisories on First Nation reserves across the country, alleging breaches of the Canadian Charter of Rights and Freedoms rights of security of the person and equality, as well as the Crown’s fiduciary duties to First Nations for failure to provide clean drinking water on reserves. The actions seek to compel Canada to provide compensation and safe drinking water on reserves.

OKT has been jointly retained with McCarthy’s to act as class counsel in these proceedings and represents Curve Lake First Nation, Neskantaga First Nation, and Tataskweyak Cree Nation to prosecute the class action, including certification and a common issues trial. The Licensee is requesting to appear as counsel throughout both proceedings. All three First Nations want the Licensee to appear as one of their counsel along with other members of the McCarthy’s and OKT teams. None of the other members of those teams has the combined personal experience of living on reserve and the extensive professional experience working with First Nations that the Licensee possesses.

Canada, the sole defendant in both the Tataskweyak and Curve Lake Actions, does not oppose this application and will abide by the Tribunal’s decision. The Law Society consented to the Licensee’s application and together with the Licensee submitted that exceptional circumstances exist in this matter.

The concerns expressed about former judges appearing as counsel in the courts are related to apprehension of bias, conflict of interest, and most importantly, public perception and confidence in the justice system. While the Rule does not provide any guidance as to what constitutes exceptional circumstances, based on the particular facts of the application in question, the concerns identified above – apprehension of bias, conflict of interest and public perception and confidence in the justice system – have either been eliminated or materially ameliorated.

It is determined that exceptional circumstances exist such that the Licensee should be granted permission to appear as counsel in the two class proceedings. The applicant is restricted from using his honourific or making any reference to his status as a retired judge in any appearances in the two class action proceedings as listed above, in the courtroom and any pleadings, affidavits or other documents to be filed as part of the court record, except as required by the applicant’s professional responsibilities or any direction or order of the respective court.

Temagami First Nation v Presseault, 2020 FC 933

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The Court dismissed an application for judicial review of an adjudicator’s jurisdictional decision with respect to the Canada Labour Code. The adjudicator did not err in concluding that a claim for unjust dismissal against an on-reserve daycare fell within the jurisdiction of the Code given that the daycare was functionally integrated with the First Nation. 

Indigenous Law Centre CaseWatch Blog

In 1998, the Temagami First Nation [“TFN”] hired Tammy Presseault, to prepare its proposal to the Government of Canada for funding under the Aboriginal Head Start on Reserve program. The funding helped establish a daycare to provide childcare services on TFN territory. Ms. Presseault worked with the daycare from 2011 until her dismissal in 2017. Following the termination of her employment, Ms. Presseault filed a complaint of unjust dismissal under the Canada Labour Code [“Code”]. The TFN requested that the Adjudicator dismiss Ms. Presseault’s complaint on the grounds that her employment with TFN is a matter within provincial jurisdiction, not federal jurisdiction.

In 2019, the Adjudicator found that the federal government had direct jurisdiction, or in the alternative, derivative jurisdiction over the labour relations of the daycare. He applied the two-stage analysis outlined by the Supreme Court of Canada in NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, 2010 SCC 45 [“NIL/TU,O”]. He further relied on Canada (AG) v Munsee-Delaware Nation 2015 FC 366 [“Munsee-Delaware”] to conclude that the NIL/TU,O functional test must be applied to the governance functions of First Nations and their Councils in order to determine whether the entity’s labour and employment relations come under federal or provincial regulation. A functional assessment is to be undertaken to consider whether an employee’s role is concerned with the administration and governance of a First Nation or Band Council. If so, they fall under federal jurisdiction since the administration of a First Nation is a federal undertaking (Munsee-Delaware).

The Adjudicator concluded that the dominant character of the daycare’s operation was integral to the First Nation as a federal undertaking and that the Daycare is an indivisible and integrated operation. Further, the Adjudicator stated that provincial jurisdiction over the labour relations of the Daycare would impair the core of federal jurisdiction over the governance function of the TFN.

The TFN seeks judicial review of the Adjudicator’s decision that concluded that Ms. Presseault’s claim for unjust dismissal was within the jurisdiction of the Code. This Court dismisses the judicial review. The Adjudicator did not err in applying the appropriate test or in his consideration of the facts to determine that the unjust dismissal claim was within the jurisdiction of the Code. The Court determined that the Adjudicator identified and applied the proper test and reasonably assessed the specific factual matrix to conclude that the nexus of reporting and the control exercised caused the daycare to be functionally integrated with the TFN. Although the TFN takes issue with some of the facts considered by the Adjudicator, the Adjudicator reasonably balanced all of the facts put before him.

Ms. Presseault’s position with the daycare is functionally integrated into the general administration and governance of the TFN (Munsee-Delaware). There is no basis for this Court to interfere with the Adjudicator’s conclusion on the functional analysis. Having concluded under the functional test that the daycare was a federal undertaking, the Adjudicator was not required to undertake a derivative analysis. However, he did consider the derivative analysis and reached the same conclusion as with the functional analysis.

The derivative analysis asks whether provincial regulation of an entity’s labour relations impairs the core of the relevant head of power (NIL/TU,O). The derivative analysis also asks whether activities are integral to a federal undertaking in a way that justifies imposing exceptional federal jurisdiction for the purposes of labour relations (Tessier Ltée v Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23). Namely, that the dominant character of the operations of the daycare is integral to the TFN as a federal undertaking.

The Adjudicator’s findings of fact are owed deference. The finding that Ms. Presseault’s position with the daycare is integrated into the governance and administration function of the TFN is reasonable and supported by the undisputed evidence. The Adjudicator did not err in concluding that the federal government also has derivative jurisdiction on the facts of this case.

Grey v Whitefish Lake First Nation, 2020 FC 949

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The Court dismissed an application for judicial review of an arbitrator’s decision to dismiss an election appeal. The Applicant unsuccessfully argued a reasonable apprehension of bias and reviewable substantive errors in that decision. 

Indigenous Law Centre – CaseWatch Blog

An Election Appeal Arbitrator [“Arbitrator”] was retained by Whitefish Lake First Nation [“WLFN”] for a 2018 general election [“Election”]. He was to supervise and ensure that any appeals from the Election were conducted in accordance with the Customary Election Regulations [“Regulations”].

The Election was held to elect candidates to four band councillor positions and one candidate to the position of chief. The Applicant unsuccessfully ran for election as a councillor. Albert Thunder was elected as Chief. Although the Applicant did not seek election as Chief, he appealed the results of the election of Albert Thunder as permitted by s 16.2 of the Regulations. The Arbitrator denied the appeal and upheld the election of Albert Thunder as Chief.

In 2019, the Applicant commenced this application for judicial review challenging the decision of the Arbitrator. The primary basis of the application is the assertion that his Election Appeal was tainted by a lack of independence, impartiality and a reasonable apprehension of bias on the part of the Arbitrator. The Applicant asserted three allegations, that in context altogether, would collectively meet the test for reasonable apprehension of bias.

The threshold for a finding of a reasonable apprehension of bias is a high one, and the burden on the party seeking to establish a reasonable apprehension is correspondingly high (Oleynik v Canada (AG), 2020 FCA 5). The Applicant asserted in one of the allegations that the appointment process of the Arbitrator by the WLFN lacked independence and was procedurally unfair, because it was the executed by the WLFN Council. Section 7.1 of the Regulations specifically authorizes the WLFN Council to appoint an Election Appeal arbitrator, which must be done by way of a band council resolution. The Supreme Court of Canada has held that it is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute (Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52). This principle is equally applicable in the context of administrative decision making such as First Nation election regulations (Sturgeon Lake Cree Nation v Hamelin, 2018 FCA 131). The appointment of the Arbitrator by WLFN Chief and Council, along with two other allegations in this case, does not give rise to a reasonable apprehension of bias.

Although the Applicant also makes submissions asserting errors on the part of the Arbitrator pertaining to his decision and his weighing of the evidence, s 16.20 of the Regulations clearly precludes challenges on that basis, restricting challenges on judicial review to matters of procedural fairness. Accordingly, it is not open to the Applicant to challenge the Arbitrator’s decision on the merits.

R v Turtle, 2020 ONCJ 429

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The Court held that the unavailability of an intermittent sentence for on-reserve members of the Pikangikum First Nation, and those similarly situated, for mandatory minimum sentences under s 255 of the Criminal Code, breaches s 15 of the Charter. Alternative arguments under ss 7 and 12 of the Charter were dismissed. 

Indigenous Law Centre
Indigenous CaseWatch Blog

Six band members of the Pikangikum First Nation have pled guilty to a drinking and driving offense that, in their circumstances, carries with it a mandatory minimum jail sentence of not more than ninety days. Each of the accused live, together with their young children, on the First Nation Territory of Pikangikum.

The parties to these proceedings agree it would be open to each of these accused, in the normal course, to request an order of this Court allowing them to serve their sentences intermittently. The challenge for these defendants is that the Pikangikum First Nation Territory is an isolated fly in community hundreds of kilometers from the nearest district jail in the City of Kenora and it is financially and logistically prohibitive for them to travel to and from there, from weekend to weekend, at their own expense, to serve out their sentences.

Faced with this obstacle, the defendants each brought applications alleging that their inability to mitigate the effect of a mandatory jail sentence because of the practical unavailability of an intermittent sentence violates their right to equal protection under the law, constitutes cruel and unusual punishment and an abuse of the court’s process. Given the common ground of these applications, the desirability of using resources efficiently and with the consent of the parties, this Court has directed these applications be heard in one joined proceeding.

The question at the heart of this joint application is whether particular Criminal Code provisions of general application have an unconstitutional impact on Pikangikum First Nation residents, their place in Canadian confederation and what it means for them to be equal under the law. The recognition that First Nations, like Pikangikum, lived in distinctive societies, that their members are described in s 35(2) of the Constitution Act, 1982 as “peoples” who have been recognized by our highest Court as holders of community based rights, by virtue of their connection to their land, strongly suggests that the defendants, as on-reserve members of the Pikangikum First Nation, belong to a group enumerated in s 15 of the Charter, namely, a nation.

Being deprived of the opportunity to serve a jail sentence intermittently because of their status as on-reserve band members of the Pikangikum First Nation, constitutes the deprivation of a legal benefit. It also creates a distinction in law between themselves and other members of the general public. Most of the offending behavior in Pikangikum, like the offences the defendants have pled guilty to, is related to alcohol or solvent abuse. Pikangikum First Nation reserve is, and always has been, an ostensibly dry community. The effects of alcohol abuse in Pikangikum are rampant and have become devastating.

Mandatory minimum sentences under s 255 of the Criminal Code, breaches s 15 of the Charter. Any s 1 justification must fail at the minimal impairment stage of the analysis given this Court is deprived of any other sentencing options for the defendants by virtue of their facing mandatory sentences. The deleterious effects of this constitutional violation are egregious and cannot be outweighed by the salutary effect of a uniform sentencing regime (R v Sharma, 2020 ONCA 478). Alternative arguments under ss 7 and 12 of the Charter are dismissed.

Pikangikum and other Treaty #5 nations had traditional means of keeping the peace in their communities that pre-date contact with Europeans by thousands of years. Pikangikum’s integration into Canadian confederation is a textbook example of the negative effects of colonialism on an isolated hunter-gatherer society. The people of Pikangikum were a healthy, self-sufficient band of families, who, in the lifetime of the current Chief’s grandmother, became the suicide capital of the world. The legal regime the Court has been asked to consider in this application, though neutral on its face, treats the people of Treaty #5 as second-class citizens. The Government is not fulfilling its treaty obligations and young Indigenous people are taking their lives in shocking numbers.

Bruno v Samson Cree Nation, 2020 ABQB 504

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The Court certified a class action against the Samson Cree Nation for members from whom payment of per capita distributions, special pays, and interest were withheld during litigation and disputes over members added by virtue of Bill C-31 in 1987. The majority of common issues were approved as sought, or as modified by the Court or agreed to by counsel, and can proceed to trial. 

Indigenous Law Centre – CaseWatch Blog

For most of its history, the Indian Act based entitlement to Registered Indian status and band membership on descent through the male parent. This system of eligibility for Indian registration based on descent through the male line was in effect until Bill C-31 was passed in 1985, in response to the equality commands of the Charter. Women who lost their Registered Indian status before 1985 for “marrying out” were restored to status by Bill C-31. These women, and any children they had with their non-Indian husbands, could be registered as Indians pursuant to s 6 of the Indian Act, enacted by Bill C-31.

Before Bill C-31, the Government of Canada maintained all Band lists, and determined Band eligibility on the basis of its statutory and administrative rules about parentage and marriage. After Bill C-31, this dual role for Canada continued with respect to many Bands. However, Bill C-31 also gave Bands the option of taking control of their membership by establishing their own membership codes.

The Plaintiff, Bonnie Lee Bruno [“Bruno”], is a member of the Samson Cree Nation [“Nation”]. Her name was added to the Band List of the Nation maintained by the Minister of Indian Affairs and Northern Development [“Minister”], under the provisions of Bill C-31. Previously enfranchised Indian women and their children became members of Indian Bands on lists administered by the Minister, unless First Nations developed band membership rules approved by the Minister on or before June 28, 1987. The Court found that, on the unchallenged evidence before it, that this was not done in this matter, thus giving primacy to the list maintained by the Minister on which the Plaintiff, and allegedly others in the class, had status effective June 29, 1987. 233 individuals were added as at that date.

Prior to the passage of Bill C-31, there was considerable controversy within many First Nations over, among other things, questions over whether the women who had “married out” should be accepted back into the community and as Band members. After Bill C-31 came into effect, there were numerous challenges before the courts regarding Band membership and the equality rights issues raised by the history of enfranchisement and the attempted solution of Bill C-31.

This class proceeding relates to a claim of class members from whom, after they were added to the Band List of the Samson Cree Nation [“Nation”] by virtue of Bill C-31, the Nation withheld payment of per capita distributions and Special Pays, and interest, from 1988 to 1995 per the Plaintiff, and lesser or greater time periods as to other class members. Beginning in June 1987, the Plaintiff and other individuals’ names were entered onto the Samson Nation Band List maintained by the Minister pursuant to Bill C-31, but that the Class Plaintiffs only became members of Samson Nation about 1995 when Samson recognized and admitted them as members of the Samson Nation.

The first criterion for certification is that the plaintiff’s pleading discloses a cause(s) of action. No evidence is required, but rather the facts, as pleaded, are assumed to be true (Hunt v Carey Canada, [1990] 2 SCR 959). The pleading is to be read generously (Cloud v Canada (2004), 73 OR (3d) 401 (CA)). The standard test for unjust enrichment is: an enrichment of the defendant; a corresponding deprivation of the plaintiff; and the absence of a juristic reason for the enrichment (Garland v Consumers’ Gas Co, [2004] 1 SCR 629).

At this stage, the Plaintiff merely needs to allege an arguable cause of action, which she has done. Proof of the allegation is for trial. The Court finds that a cause of action for unjust enrichment has been established for the purpose of certification. It is determined that this is an appropriate case to proceed by way of a class proceeding, and the majority of 16 common issues and 4 subclass common issues are approved as sought, or, in some cases, with modification.

Sioux Valley Dakota Nation v Tacan, 2020 FC 874

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The Court rejected an application for a stay of proceedings preventing a complaint under the Canada Labour Code from proceeding, while a preliminary ruling on jurisdiction is subject to judicial review. The First Nation failed to demonstrate a serious issue, as its application for judicial review was premature; it failed to demonstrate irreparable harm; and the balance of convenience favoured respect for the arbitrator’s autonomy and the availability of a quick and effective remedy for the complainant.

Indigenous Law Centre
Indigenous CaseWatch Blog

Sioux Valley Dakota Nation [“SVDN”] sought a stay of proceedings before an adjudicator hearing Ms. Tacan’s complaint under the Canada Labour Code [“Code”]. In a preliminary ruling, the adjudicator found that Ms. Tacan’s employment fell under federal jurisdiction. SVDN brought an application for judicial review of that preliminary ruling and for the application to be decided before the adjudicator hears the merits of Ms. Tacan’s complaint.

SVDN’s motion is dismissed because the underlying application for judicial review is premature. As a result, the test for granting a stay is not satisfied. (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]. The applicant must show that: 1) the underlying application raises a serious issue; 2) the stay is necessary to avoid irreparable harm; and 3) the balance of convenience favours the granting of the stay. Courts will refrain from reviewing interlocutory decisions of administrative bodies, save in exceptional circumstances (Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61); Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10).

SVDN’s application raises the issue of jurisdiction over labour relations. Applications for judicial review of interlocutory decisions are premature even if they relate to “jurisdictional” or constitutional issues (Black v Canada (AG), 2013 FCA 201; Alexion Pharmaceuticals Inc v Canada (AG), 2017 FCA 241). This Court has concluded that challenges to the adjudicator’s jurisdiction do not justify judicial review of interlocutory decisions (Entreprise Publique Économique Air Algérie, Montréal, Québec v Hamamouche, 2019 FC 272). An application for judicial review is obviously premature, because it challenges an interlocutory decision, does not give rise to a “serious issue” for the purposes of a motion for a stay (Dugré v Canada (AG), 2020 FC 602).

SVDN does not show that a stay is necessary to avoid irreparable harm. It argues that letting the adjudicator rule on the merits would be a “waste of time.” This alone, however, cannot be considered irreparable harm. SVDN also argues that it would suffer irreparable harm because its “constitutional development” is at stake. SVDN has not shown any concrete harm, as Aboriginal and Treaty rights protected by section 35 have no bearing on division of powers issues (Canada (AG) v Northern Inter-Tribal Health Authority Inc, 2020 FCA 63).

At the third stage of the RJR-MacDonald test, it is obvious that granting a stay and allowing SVDN’s application for judicial review to proceed would significantly prejudice Ms. Tacan, who remains unemployed and is unable to pay for legal services.

Linklater v Thunderchild First Nation, 2020 FC 899

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The Thunderchild First Nation Government is enjoined from continuing with and holding a by-election for Headman in order to fill the vacant position left by the removal of the Applicant, until the determination of his application for judicial review or further Order of the Court.

Indigenous Law Centre – CaseWatch Blog

The Applicant, Mr. Linklater, was elected Headman on the Thunderchild First Nation Council in late 2018. He was required to reside on Thunderchild First Nation reserve lands or Treaty Land Entitlement lands, or to move there within 30 days of the election (Thunderchild First Nation Election Act [“Election Act”]). Mr. Linklater considers this residency requirement to be contrary to s 15 of the Charter since it represents an unjustified violation of his right to equality as a citizen of a First Nation living off reserve. He also considers it to be a remnant of colonial structures, and of similar discriminatory provisions once in force in provisions of the Indian Act that were found unconstitutional by the Supreme Court of Canada (Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 [“Corbiere”]).

In 2019, a citizen of Thunderchild First Nation, asked the Thunderchild First Nation Government to remove Mr. Linklater from his position for failure to meet the residency requirement. It responded that it had no authority to do so because it also considered the residency requirement to be contrary to the Charter. Along with another citizen of Thunderchild First Nation, applications were brought to the Thunderchild First Nation Appeal Tribunal [“Tribunal”] to have Mr. Linklater removed from his position. Among other arguments, it was noted that a 2019 referendum in Thunderchild First Nation proposing various amendments to the Election Act, including the removal of the residency restriction, had not passed.

In 2020, the Tribunal issued a decision removing Mr. Linklater from his position for failure to meet the residency requirement. In its decision, the Tribunal decided it did not have jurisdiction under the Thunderchild First Nation Appeal Tribunal Act [“Tribunal Act”] to strike sections of the Election Act because they violate the Charter. It therefore did not address Mr. Linklater’s Charter arguments. The Tribunal ordered that a by-election be held as soon as possible to fill the position vacated by its removal of Mr. Linklater. Mr. Linklater has challenged the Tribunal’s decision on the application for judicial review. He alleges that the Tribunal did have jurisdiction to decide his Charter arguments, and that it should have decided that the residency requirement was unconstitutional. In this motion, Mr. Linklater seeks an injunction stopping the by-election until his application for judicial review can be heard and decided.

This Court orders that the by-election to fill the vacant seat for Headman on the Thunderchild First Nation Council be halted while Mr. Linklater’s Charter challenge to his removal from that seat is before the Court. This Court should not lightly interfere with elections directed by First Nations governments and tribunals. There is significant consideration given, however, to the fact that Mr. Linklater’s request is not opposed by either the Thunderchild First Nation Government or those who requested his removal. There is no other Thunderchild First Nation decision-maker who can grant the relief sought. This order does not grant Mr. Linklater’s challenge to his removal, nor does it reinstate him in his role as Headman, either temporarily or permanently. This order only seeks to avoid the harm that would arise from someone else being elected Headman while the question of Mr. Linklater’s removal remains outstanding.

This Court has confirmed that the Applicant has met the three-part test that applies to injunctions seeking to halt Indigenous elections (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311; Awashish v Conseil des Atikamekw d’Opitciwan, 2019 FC 1131). Mr. Linklater has already lost his seat. He does not on this motion seek reinstatement; he seeks that remedy among others on the underlying application for judicial review. However, if another Headman is elected to that seat, Mr. Linklater may be excluded from acting as Headman until the next election in late 2022, regardless of the outcome of this application. This would amount to irreparable harm resulting from the by-election itself, over and above any harm already incurred as a result of the order removing him from his seat as Headman.

The balance of convenience favours granting the requested injunction. The particular harm to Mr. Linklater if the injunction is not granted is significant. The broader interests of self-governance and democratic principles are of fundamental importance, but are attenuated in the particular circumstances of this case.

West Moberly First Nations v British Columbia, 2020 BCCA 138

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Appeal dismissed. There is no reversible error of law or fact demonstrated in the trial judge’s analysis of a long-standing dispute over the western boundary of Treaty 8.

Indigenous Law Centre CaseWatch Blog

In 2005, the West Moberly First Nations, Halfway River First Nation, Saulteaux First Nations, Prophet River First Nation and Doig River First Nation [“Respondent FNs”] commenced the underlying litigation and are the respondents on appeal. The interest of the Respondent FNs in obtaining the declaration granted stems from their position that the Treaty gives them hunting, trapping and fishing rights [“harvesting rights”] throughout a tract of land defined in a “metes and bounds clause” of Treaty 8 [“tract”]. However, whether the Treaty gives them such rights throughout that tract was not the subject matter of the litigation at trial.

Between 1871 and 1921, the Dominion of Canada (“Canada”) entered into 11 “numbered treaties” with Indigenous groups throughout the country. This appeal concerns Treaty 8, which was signed on June 21, 1899, at Lesser Slave Lake in the District of Athabasca. What the original signatories to the Treaty meant by the phrase “the central range of the Rocky Mountains” has been a vexing issue for over 100 years. In the underlying litigation, Respondent FNs represent descendants of Indigenous groups who signed adhesion agreements with Canada or individuals who were added to the rolls of the Treaty. The plaintiffs applied for a declaration that the western boundary of the tract described in the Treaty referred to the height of land along the continental divide between the Arctic and Pacific watersheds, approximately 48,000 square miles. The trial judge concluded this clause referred to the Arctic-Pacific Divide, which is located within the Rocky Mountains up until the 54th parallel north, then diverges west.

The dissent stated that no declaration was available in the circumstances of this case or in the alternative, the only declaration available was one stating the relevant provision refers to a watershed of the Rocky Mountains. The dissent views that declarations must affect a legal right and since it is unclear from the text of the Treaty alone that any rights are tied to the provision, and consequently, the declaration should not have been granted.

The majority favoured that the declaration of the trial judge is upheld, and that there was no error in law or fact in his judgement. The requested declaration clarifies legal rights and obligations and the trial judge had discretion to issue it. The Court should not interfere with the conclusions he reached from his vantage point at trial. There is no obligation in the law of declaratory relief to litigate the range of a declaration’s effects. The question is simply whether the declaration will have practical utility.

Regardless of the right or obligation being interpreted, if there is a possibility it could be affected by the location of the western boundary, the parties will be assisted by knowing that boundary. The Treaty 8 First Nations who assert rights within the tract may find the declaration clarifies their ability to protect those rights through the existing Treaty, rather than as s 35 rights stemming from historic use and occupation.

As well, under the majority’s view, the honour of the Crown may give rise to a remedy if this was breached in the setting of the boundary, but it should not change the interpretation of the evidence. There is ambiguity over whether Treaty 8 entitles signatories to hunt, trap, and fish throughout Treaty 8 or whether Treaty 8 only guarantees this right within their traditional territory (i.e. a subset of the Treaty). This again ties back into the effect of Treaty 8 on non-treaty First Nations in BC whose territories are covered by the western boundary accepted at trial. If Treaty 8 only guarantees harvesting rights within the traditional territories of the signatory First Nations then it will have no effect on the First Nations in the Rockies who were never consulted.

 Another legal issue discussed, was the relevance of the Indigenous perspective on treaty versus the trial judge’s heavy emphasis on the Crown’s perspective. All judges on appeal seem to agree that this is important but the majority decision found there to be very little evidence of the Indigenous perspective, hence the trial judge’s emphasis on the Crown’s perspective.

 

Buck v Canada (AG), 2020 FC 769

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The Federal Court dismissed an application for an interlocutory injunction against the Minister of Crown-Indigenous Relations and Northern Affairs Canada to prevent the execution of a proposed specific claim settlement with the Enoch Cree Nation until a final determination of an action against Enoch and the Crown. The Court held that it has no statutory jurisdiction to issue an interlocutory injunction against the federal Crown in relation to an action as opposed to an application for judicial review. The Court also held that it would not have issued an injunction even if it had the jurisdiction to do so, finding no irreparable harm to the plaintiffs and that the balance of convenience favours reconciliation through implementation of the settlement agreement.

Indigenous Law Centre – CaseWatch Blog

 

Enoch is a First Nation and a band as defined in s 2(1) of the Indian Act, with over 2200 members. In 1942, Canada leased a portion of Enoch Reserve lands, to the Department of Munitions and Supply [“DMS”] for use as a practice bombing range.

In 2008, Canada enacted the Specific Claims Tribunal Act pursuant to which First Nations could file specific claims with the Tribunal as specified therein. A specific claim submitted by a First Nation can be accepted for negotiation by Canada. The negotiation and settlement of a specific claim avoids recourse to adjudication before the Specific Claims Tribunal. The Specific Claims Policy establishes the principles and process for resolving specific claims through negotiation and that such claims can only be submitted by a First Nation and only First Nations can file specific claims with the Tribunal.

Enoch submitted a specific claim in respect of the use by DND of Enoch Reserve lands as a bombing range [“Enoch Specific Claim”]. The Enoch Specific Claim alleged breaches of fiduciary duty and breaches of the 1927 Indian Act. Canada and Enoch reached mutual agreement as to the settlement of the Enoch Specific Claim that included the proposal of a significant payment by Canada to Enoch in full and final settlement of the Enoch Specific Claim [“Proposed Settlement Agreement”]. In 2020, Enoch held a ratification vote at which the large majority of Band members who voted did so in favour of accepting the Proposed Settlement Agreement, and subsequently passed a Band Council Resolution accepting the Proposed Settlement Agreement.

The Plaintiffs are members of Enoch. In 2019, the Minister received a letter stating the Enoch Specific Claim included land held by the McGillis family by way of a Certificate of Possession [“CP”]. Amongst other things, it stated that Enoch had recently engaged directly with the McGillis family, but despite a letter from their counsel to the Department of Justice outlining what the Plaintiffs viewed as the legal obligations of the Crown to the CP holders, there had been no direct engagement with the Crown. It is alleged that Enoch and the Crown could not proceed with the Enoch Specific Claim settlement without reaching prior agreement with the Plaintiffs as to their interests in the land held under the CP.

The Minister advised that Canada’s negotiations with Enoch were undertaken on a confidential basis, and for that reason, the Minister was unable to meet with the Plaintiffs to discuss them. However, that through the specific claims negotiations, Canada encourages First Nations elected leadership to share information about the claim with all community members. The Plaintiffs’ view is that Canada should engage directly with the Plaintiffs. Accordingly, Canada continued to urge the Plaintiffs to direct their claims to Enoch.

The Plaintiffs filed a Statement of Claim in this Court, commencing an action against Canada alleging ongoing trespass caused by alleged munitions scraps on the lands that were leased to DMS for use as the bombing range, including those lands held under the CP. Subsequently, the Plaintiffs filed an Amended Statement of Claim asserting that Canada breached its fiduciary duties owed to the Plaintiffs with respect to the CP Lands, including by finalizing the terms of the Proposed Settlement Agreement to the prejudice of the Plaintiffs. They further alleged the tort of conversion on the basis that as holders of the CP, only they can sue for trespass, seek remediation and receive damages and that Enoch was not authorized to make the Specific Claim in relation to the CP lands.

The determinative issue is this matter is whether this Court has jurisdiction to grant the requested injunctive relief. There is no underlying application for judicial review that could be the basis for the Court’s jurisdiction to grant an interlocutory injunction. There is a clear line of authority standing for the proposition that where an action is brought against the Crown, s 22(1) of the Crown Liability and Proceedings Act will, in the normal course, preclude the granting of an injunction against the Crown. This Court has no jurisdiction to grant an injunction in that circumstance as its jurisdiction is determined by ss 18(1) and (3) of the Federal Courts Act, which permits it to grant injunctive relief only where the underlying proceeding is an application for judicial review.

The lack of jurisdiction of this Court to grant the motion seeking an injunction entirely disposes of the Plaintiffs’ motion. However, even if the Court had jurisdiction, it would not have granted the injunction as the Plaintiffs failed to meet the requirements of the three part test (R v Canadian Broadcasting Corp, 2018 SCC 5 [“Broadcasting”]). Although the Plaintiffs demonstrated a “serious question to be tried”, they could not succeed on the second and third branches. They did not establish that they would incur irreparable harm. In preventing the settlement and the step toward reconciliation that it represents, thereby delaying or precluding the compensation its resolution would afford to Enoch’s members collectively and individually, is not in the public interest and tips the balance of convenience in favour of Enoch and the Attorney General. The Plaintiffs would not suffer the greater harm in that event.