Tag Archives: First Nations

Quebec (AG) v Picard, 2020 FCA 74

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Appeal dismissed. The Court of Appeal upheld the Federal Court’s finding that the pension plan for Indigenous police officers employed by several band councils in Quebec falls under federal jurisdiction and is a plan registered under the federal Pension Benefits Standards Act.

Indigenous Law Centre
Indigenous CaseWatch Blog

The First Nations Public Security Pension Plan [“Plan”] was first registered by the Office of the Superintendent of Financial Institutions [“OSFI”] in 1981 under the authority of the Pension Benefits Standards Act [“PBSA”]. The purpose of that Plan is to provide retirement benefits to the police officers and special constables of a number of police forces of First Nations member communities serving Indigenous communities. The Plan currently covers the police forces under the responsibility of 14 band councils in Quebec.

The police services of the band councils that are members of the Plan are all subject to policing services agreements reached between each of the band councils, the Crown, as represented by the Minister of Public Safety and Emergency Preparedness, and the Government of Quebec. These agreements are made under the First Nations Policing Program [“Program”]. The federal government covers 52% of the costs, and the provincial government covers 48%. Tripartite agreements of the type at issue in this case are apparently preferred by the vast majority of the communities.

OSFI is responsible for regulating and supervising private federal pension plans registered under the PBSA in order to contribute to public confidence in the Canadian financial system (Office of the Superintendent of Financial Institutions Act). To be registered under the PBSA, a pension plan must primarily relate to employment in connection with the operation of any work, undertaking or business that is within federal legislative authority (PBSA). When this is not the case, the supervision of the plan is the responsibility of the provincial authorities.

The Federal Court found that the police officers and special constables hired and remunerated by band councils under a tripartite agreement that also involves the federal and Quebec governments are employed in a federal work, undertaking or business. Consequently, the Federal Court expressed the view that their pension plan was a plan registered under the PBSA and that OSFI should continue to administer the Plan.

This Court is of the view that the Federal Court did not err in allowing the application for judicial review and in declaring that the police officers and special constables hired and remunerated by band councils that are members of the Plan are employed in a work, undertaking or business within federal jurisdiction. Consequently, the PBSA and its Regulations apply to the Plan because the participating employees are employed in “included employment” within the meaning of the PBSA.

In contrast to the Indigenous police officers employed by the Nishnawbe-Aski Police Service Board at issue in a previous Federal Court of Appeal decision, the Indigenous police officers in this matter are employed directly by band councils and associated with the governance of their First Nations, therefore their labour relations are federally regulated.

RF v Kina Gbezhgomi Child and Family Services, 2020 ONCJ 366

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Counsel for a foster parent in a child protection matter was removed from the record based on his prior representation of the child protection agency respondent. The Court took into account the overall negative relationship between Indigenous peoples and the justice system in relation to the need to respect an Indigenous person’s choice of counsel, but held that intervention is necessary in clear cases of conflict in order to mitigate this crisis of confidence. 

Indigenous Law Centre – CaseWatch Blog

An Anishinaabe child [“NLJ”], a registered band member of Wiikwemkoong Unceded Territory [“Wiikwemkoong”], was removed at birth from the care of her parents by the Children’s Aid Society of Oxford County [“CAS”] and a protection application commenced. The child has significant physical needs that require specialized care both at home and at school. NLJ was placed with the applicant [“RF”] on this protection application proceeding, and who was, at that time, a recognized foster home and the placement was monitored by the CAS. The file was ultimately transferred to Kina Gbezhgomi Child and Family Services [“KGCFS”] and the applicant continued to provide a foster placement for NLJ.

NLJ was made a crown ward under the Child and Family Services Act and remained in RF’s care. Wiikwemkoong passed a Band Council Resolution which provided that NLJ remain in the home of RF pursuant to a Customary Care Agreement. Wiikwemkoong and KGCFS have a “Joint Protocol” [“Protocol”] with respect to the provision of child protection services, which includes Customary Care. The Protocol outlines the relationship between Wiikwemkoong and KGCFS and their inherent right to be involved in decision making on child protection issues.

Mr. Parisé was the primary lawyer retained by the respondent society, KGCFS, for child protection matters when the Customary Care Agreement was finalized. Because of the Protocol, KGCFS is necessarily a party to that agreement. In 2016, the Crown Wardship Order was terminated following a status review application commenced by KGCFS. The existence of the Customary Care Agreement was the basis for the application. Of note, Mr. Parisé was counsel for KGCFS at the time and counsel of record in that proceeding.

The child remained in the home of RF under this Agreement until 2019 when NLJ was removed by KGCFS and placed in another customary care home. The Customary Care Agreement between KF, Wiikwemkoong, KGCFS, and the biological parents of NLJ was terminated sometime thereafter. It was at this time that Mr. Parisé started acting as counsel of record for RF. Mr. Parisé represented RF who filed a status review which was ultimately dismissed without prejudice to the applicant bringing an application under s 81(4) of the Child, Youth and Family Services Act [“CYFSA”]. RF then filed a protection application. KGCFS brought a motion to remove Mr. Parisé as counsel of record a month later, which was the first time the issue of potential conflict was raised with the Court.

On March 16, 2020, the Office of the Chief Justice released a Notice to the Public ordering the suspension of normal court operations in light of the COVID-19 pandemic. As a result, RF’s application was adjourned, and with it, KGCFS’s motion. Subsequently, the Customary Care placement was revoked when the respondent mother withdrew her consent but did not seek custody at that time. NLJ no longer had a customary care placement and KGCFS commenced their own protection application without naming RF as a party. After dealing with the initial removal to a place of safety, the court remanded both matters to the same date to be spoken to in order to deal with jurisdictional issues arising out of the fact that there are now two separate child protection applications dealing with the same child, and which do not have all the same parties. The parties on both applications agreed that this motion would need to be heard first before other substantive issues could be addressed.

The jurisdiction to remove counsel is found in the inherent right of the court to determine “to whom it will give an audience” and that the threshold for court intervention should be high (Windsor-Essex Children’s Aid Society v BD, 2013 ONCJ 43). The test that the courts have developed for determining if counsel should be removed is whether the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur (MacDonald Estate v Martin, [1990] 3 SCR 1235 [“MacDonald”]).

Counsel of choice is a foundational principle in the Canadian justice system. It is well established that a litigant should not be deprived of their counsel of choice without good cause. However, this principle is not absolute. The issue in this motion is whether a lawyer who acted on behalf of a society on a child protection file can now represent one of the other parties in a subsequent protection application. The Court determines in this case, that the conflict is one which should disqualify the lawyer from continuing to act on the matter and the lawyer be removed from the record. The courts owe a duty to the Indigenous people they serve to intervene in the clear cases of conflict, in order to mitigate this crisis of confidence.

Southeast Collegiate Inc v Laroque, 2020 FC 820

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Application allowed. A Canada Labour Adjudicator committed an error of law by failing to apply the correct legal test to determine if he had jurisdiction to hear an employee’s wrongful dismissal complaint. He erroneously concluded the presumption of provincial regulation of labour relations had been rebutted based on a provision of the Indian Act, the identity of the students, and the program’s emphasis on cultural sensitive education.

Indigenous Law Centre CaseWatch Blog

The Court allowed an application for judicial review from a Canada Labour Adjudicator’s decision that the Southeast Collegiate Inc. is a federal undertaking to which the Canada Labour Code [“CLC”] applies. This corporate entity was created by the Southeast Tribal Council to deliver culturally sensitive high school education to Indigenous students from across Manitoba.

The Respondent complained under the CLC that she was wrongfully dismissed. She therefore bore the onus to adduce evidence to rebut the presumption of provincial authority. The Adjudicator addressed the two issues put forward regarding jurisdiction and the dismissal of the Respondent. Ultimately the Adjudicator found that the facts set out in the termination letter were proven and that the dismissal of the Respondent was justified. He also determined that the Applicant was a federal undertaking to which the CLC applies [“Decision”]. The Applicant does not challenge any of the fact-finding in the Decision. The Applicant seeks judicial review because it maintains that, in light of the relevant jurisprudence, it is not a federal undertaking for the purpose of employment.

It has been acknowledged that strictly speaking, this issue is not a genuine constitutional one as it is not concerned with whether a particular statute is intra or ultra vires the constitutional authority of the enabling government. However, there is a rebuttable presumption that labour relations are a matter of provincial jurisdiction (NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, 2010 SCC 45 [“NIL/TU,O”]; Treaty 8 Tribal Association v Barley, 2016 FC 1090).

The Applicant established and operates a high school for Indigenous students with classes for grades 10, 11 and 12. The school draws students from sixteen Indigenous communities across Manitoba. It serves all of Manitoba but is targeted to those communities that do not have their own local high school. The school is located in the City of Winnipeg. Students are required to live in campus dormitories during the school year except during holiday periods.

The Southeast Tribal Council and the Federal Government of Canada are parties to an annual contribution agreement to fund the operation of the school. It provides funding for the operation of the Applicant and pays the tuition and boarding fees for each Indigenous student. While the Federal Government funding is the primary source of money received by the Applicant, non-Indigenous students are allowed to attend the school if they pay the annual tuition.

Although the school is not governed by The Public Schools Act of Manitoba, the Applicant’s teachers are required to hold a Provincial Teaching Certificate. The compulsory provincial high school courses are offered by the Applicant. The annual contribution agreement requires that the Applicant follow the Manitoba Ministry of Education Curriculum in order to receive the funding. Course curricula are accredited and provided by the province of Manitoba. As a result, graduating students receive a high school diploma that is recognized by the Manitoba Board of Education and by post-secondary institutions.

In NIL/TU,O, the Supreme Court indicated that the functional test “calls for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal undertaking” (NIL/TU,O). The Adjudicator was required to consider the functional test established by the Supreme Court of Canada in NIL/TU,O and, in doing so, he had to correctly apply it. The Adjudicator did neither. Because the Adjudicator found that it did not arise, there is no indication in the Decision that the presumption of provincial authority over this Applicant’s labour relations with the Respondent was rebutted. Unless the presumption is rebutted, the Province of Manitoba had jurisdiction over the relationship between the Applicant and the Respondent. Instead of applying the functional test, the Adjudicator substituted his own view that the presumption did not arise. In that respect, the Decision is based on an error of law.

Gamlaxyeltexw v BC (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215

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Appeal dismissed. The hereditary chiefs of the Gitanyow people are actively pursuing an Aboriginal title and rights claim that includes an area that overlaps with the Nisga’a Final Agreement. The concerns regard the decision of the Minister on the basis of a breach of the duty to consult. The lower court decision added an extra step to the Haida test in cases where there is an overlap between established treaty rights and ones yet unproven. The Court of Appeal rejects the need for any modification of the Haida test.

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Indigenous CaseWatch Blog

The Appellants are hereditary chiefs of the Gitanyow people [collectively as “Gitanyow”]. The Gitanyow have an outstanding claim for s. 35 Aboriginal rights in an area described as the Gitanyow Lax’yip.

The Nisga’a Treaty sets out the s. 35 rights of the Nisga’a. It provides that nothing in the Treaty affects any s. 35 rights for any Aboriginal people other than the Nisga’a Nation. The Nisga’a Treaty established a hunting area known as the Nass Wildlife Area where the Nisga’a have non-exclusive rights to hunt. The Minister of Forests, Lands and Natural Resource Operations [“Minister”], has certain decision-making responsibilities in relation to determining the total allowable harvest in the Nass Wildlife Area and the annual management plan which regulates Nisga’a citizens’ hunting. The nature and scope of the decision-making responsibilities are set out within the Nisga’a Treaty.

The Gitanyow Lax’yip overlaps with the Nass Wildlife Area. As a result, decisions made concerning the Nass Wildlife Area may have the potential for affecting activities within the Gitanyow Lax’yip. In order to protect the rights of Indigenous groups such as the Gitanyow pending claims resolution, the Crown has a duty to consult and, where appropriate, accommodate in circumstances where the Crown has knowledge of the potential existence of an Aboriginal right and contemplates conduct that might adversely affect it. This is known as the Haida test (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72).

This appeal concerns two decisions of the Minister made in 2016 approving the total allowable harvest of moose and the annual management plan for the 2016-2017 hunting season in the Nass Wildlife Area. Prior to making these decisions, the Minister had consulted with the Gitanyow concerning the total allowable harvest, but not concerning the annual management plan.

On judicial review, the chambers judge held that the duty to consult was not triggered by the approval of the annual management plan, and that the consultation in relation to the total allowable harvest was adequate. In reviewing these issues, the chambers judge concluded that the Haida test to determine the existence of a duty to consult was not adequate to deal with the circumstance where a conflicting treaty right was at issue. She concluded that the Haida test required modification to preclude a duty to consult an Indigenous group claiming s. 35 rights when the recognition of such a duty would be inconsistent with the Crown’s duties and responsibilities to the Indigenous peoples with whom it has a treaty. It is unnecessary, however, to modify the Haida test in order to recognize the limits of accommodation that treaty rights impose. The Haida test that has been applied consistently over the past 15 years has sufficient flexibility within it to encompass these issues.

Despite the conclusion that the modification of the Haida test was unnecessary, the Court does not consider that the reviewing judge erred in her fundamental approach to the issue before her. The analysis of the chambers judge properly focused on the three-part Haida test, and in particular the third element, which asks whether the proposed Crown conduct has the potential for affecting the claimed right. This is primarily a question of fact, to be reviewed on a deferential basis. Applying the Haida test, the Minister did not err in concluding that the duty to consult was not triggered in relation to the annual management plan. The consultation undertaken by the Minister in relation to the total allowable harvest was adequate in the circumstances.

Morin v Enoch Cree First Nation, 2020 FC 696

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Application granted. Procedural fairness applies even when not directly incorporated into a First Nation’s custom election code.

Indigenous Law Centre – CaseWatch Blog

This application for judicial review is brought pursuant to s 18.1 of the Federal Courts Act, regarding a decision by an Election Appeal Board, constituted in connection with the Maskekosihk Enoch Cree Nation #440 Election Law [“MECN Election Law”]. The majority of voters of the Maskekosihk Enoch Cree Nation approved the MECN Election Law in 2018. It was enacted and adopted into the laws of that First Nation.

In this matter, the Applicant, Mr. Jared Morin and Respondent, Mr. Shane Peacock are members of the Enoch Cree Nation and both ran for the position of band councillor in the 2019 election. The counting of the ballots for councillors was conducted and there was found that both Mr. Morin and Mr. Peacock had received 319 votes. However, this “tie” is disputed as a councillor’s ballot was found in a ballot box intended for votes for the chief. That councillor’s ballot was for Mr. Morin. As some candidates ran for election as chief or councillor, the outcome of the election for chief had the potential to affect the outcome of the election to the 10th councillor position.

The Electoral Officer declared this tie and, in accordance with s 17.2 of the MECN Election Law, Mr. Morin and Mr. Peacock’s names were placed in a hat. The name drawn from the hat was Applicant. The Election Officer declared him the winner of the 10th councillor position.

Mr. Peacock subsequently submitted a brief to the Election Appeal Board that asserted the Electoral Officer improperly handled the councillor’s ballot found in the ballot box for votes for chief during the counting of the votes for the position of chief. That ballot, according to the brief, should have been considered as spoiled and not counted. In that event, Mr. Peacock would have had 319 votes and Mr. Morin would have had 318 votes, there would not have been a tie vote, and there would have been no need to conduct a tie breaking hat draw. The 10th councillor position in the 2019 election for the Maskekosihk Enoch Cree Nation chief and band council were then overturned and a by-election ordered.

This Court finds that the Election Appeal Board breached the duty of procedural fairness owed to Mr. Morin by failing to give him notice of that appeal, and as a result, deprived him of the opportunity to address the appeal allegations. The Election Appeal Board also erred by failing to notify the Electoral Officer of the appeal and in failing to obtain the Electoral Officer’s written reasons for his decision, in breach of s 20.7 of the MECN Election Law. This was unreasonable and rendered its decision unreasonable.

Given that Enoch Cree Nation did not challenge Mr. Morin’s allegation that the Election Appeal Board breached procedural fairness, and given that he has been successful in his application for judicial review in that the decision of the Election Appeal Board will be quashed and remitted back for redetermination, it is appropriate that he should be awarded the costs of his application as against the Enoch Cree Nation.

 

‘Namgis First Nation v Mowi Canada West Ltd and Canada (Fisheries, Oceans and Coast Guard), 2020 FCA 122

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Application allowed. There were concerns from a First Nation involving a salmon farming licence after learning of new scientific evidence regarding potential spread of disease. A novel adverse impact that arises since an original consultation, creates a fresh duty to consult.

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‘Namgis First Nation’s traditional territory is at the north end of Vancouver Island and includes a number of the adjacent islands, including Swanson Island, which lie between Vancouver Island and the mainland. A number of distinct wild salmon populations are found in this area. These populations are critically important to ‘Namgis for food, social and ceremonial purposes. Mowi operates an open net salmon facility adjacent to Swanson Island. That facility has been there since the early 1990’s and has been stocked with salmon during that period except for fallow periods between harvesting and restocking.

Restocking open-net facilities is at the heart of this litigation because there is an uncircumscribed risk of introducing disease agents into the waters used by wild salmon. That risk arises from the transfer of immature salmon, or smolts, from inland fish stations to the open-net aquaculture facilities. If disease-bearing fish are introduced into these waters and if those diseases spread to the wild salmon stocks, the results could be calamitous and perhaps irreversible.

‘Namgis First Nation appeals from the decision of the Federal Court dismissing its application for judicial review of the Minister of Fisheries and Oceans’ [“Minister”] decision to issue a Salmonid Introductions and Transfer Licence [“Licence”] to Mowi Canada West Ltd. [“Mowi”]. The Federal Court had before it three separate but closely related applications for judicial review which it dealt with in one set of reasons (Morton v Canada (Fisheries and Oceans), 2019 FC 143).

All three applications revolved around two risk factors for wild Pacific salmon in ‘Namgis’ asserted territory. The first is Piscine Orthoreovirus [“PRV”], a highly infectious virus that is known to be present in Canada. PRV is found in both farmed and wild salmon in British Columbia. The second is Heart and Skeletal Muscle Inflammation [“HSMI”] which is an infectious disease found in farmed Atlantic Salmon and has appeared in one aquaculture facility in British Columbia. ‘Namgis is convinced that PRV and HSMI pose a threat to the wild salmon stocks which it relies on for food, social and ceremonial purposes. The Minister views the threat level as very low. The science as to the relationship between these two threats, their prevalence, and the risk they pose to wild (as opposed to farmed) salmon is evolving.

Given the history of consultation between these parties, the issue is not whether there is a duty to consult in the abstract but rather whether a fresh duty to consult arose. The Federal Court’s reasoning does not address the question of whether a novel adverse impact had arisen since the original consultation, which would create a fresh duty to consult.

The third element required in the test for a duty to consult calls for a generous, purposive approach recognizing that Crown action has the potential to irreversibly affect Aboriginal rights (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 [“Rio Tinto”]). The adverse affect cannot be merely speculative, and it must be relevant to the future exercise of the Aboriginal right. The assessment of the duty to consult is forward looking. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right (Rio Tinto).

The science around PRV and HSMI is rapidly evolving so that it was not specifically covered in the original consultations concerning fish health. The risk of harm to the native salmon stocks may be greater than the Minister previously contemplated, thus the finding of a novel adverse impact.

Acho Dene Koe First Nation v Minister of Industry Tourism and Investment, 2020 NWTSC 19

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Application dismissed. This matter is not subject to judicial review as it seems to be of a private contractual nature brought forward by a First Nation, therefore it is not of a sufficiently public character to bring into the public law realm.

Indigenous Law Centre CaseWatch Blog

The Acho Dene Koe First Nation [“ADKFN”], claims Aboriginal title over lands upon which oil and gas exploration was being conducted by Paramount Resources Ltd. [“Paramount”], Chevron Canada Resources [“Chevron”] and Ranger Oil Limited [“Ranger”]. Neither the status, nor the validity of the ADKFN’s claim to Aboriginal title are before the Court.

The Director of Mineral and Petroleum Resources of the Department of Industry, Tourism and Investment for the Government of the Northwest Territories [“Director”] received a letter from the ADKFN explaining that the First Nation had entered into benefit agreements, called Community Investment Plans (“CIPs”), with Paramount, Chevron and Ranger. ADKFN asserted that each CIP related to specific licenses and interests held initially by each of the companies, and subsequently assigned to Paramount. ADKFN also asserted that the CIPs ran with the land to which the license and interest pertained and that Paramount, as the assignee, was bound by the CIPs with Chevron and Ranger, as well as its own.

Each CIPs’ stated purposes were to formalize the relationship between each of Paramount, Chevron and Ranger and ADKFN, and to provide for ongoing development of community relations. Among other things, they provided for financial contribution to a community development fund for the benefit of ADKFN members and a commitment to provide business opportunities to ADKFN members upon certain core competencies being demonstrated.

Although breaching of the CIPs is not before the Court, in its letter to the Director, ADKFN alleged that Paramount breached the CIPs and that consequently, Paramount was in violation of any licenses, permits or approvals that are contingent on compliance with such agreements. The Director replied by providing a general explanation of the benefits plans and approval process, noting that a benefits plan includes a commitment from the operator to implement strategies for training and employment, and procurement and contracting, but does not generally include guaranteed outcomes. He also noted that during the approval process, operators may enter into private contracts, such as the CIPs provided by ADKFN, to implement the strategies in the benefit plan, but that the terms of any private agreement do not thereby become terms of the benefit plan.

The AKDFN asks this Court to determine whether the Director in his letter erred by not assessing whether Paramount had complied with the benefits plans, declining to enforce the CIPs, and determining that the benefits plans are privileged. The Court finds that the Director’s letter is not subject to judicial review. The Director was not acting in accordance with “state authority” and the issues put before him were not of a sufficiently public character to bring the matter into the public law realm. He was not exercising a statutory or other public law power and, therefore was not acting as a tribunal. The Director received letters from ADKFN’s counsel, making a number of requests in relation to something that is entirely a private law matter. His response to the ADKFN did not become a tribunal and ADKFN’s interest did not take on a public dimension.

Even if a judicial review was allowed, it would be dismissed as the Director’s conclusion on the nature of the benefits plans as well as the Minister’s obligation to enforce the CIPs, would be assessed on a standard of reasonableness. His conclusion on the privilege question would be assessed on a standard of correctness as the privilege is statutorily protected. The Director’s assessment of the nature of the benefits plans is both reasonable and correct.

The Government’s duty to consult was not engaged because at the heart of ADKFN’s concern is a private contractual dispute with Paramount, not a proposed government action or decision. All that the ADKFN requested was an “enforcement” of the CIPs, in furtherance of its private contractual dispute with Paramount. That is something which neither the Minister, nor the Director have the authority to do and it is not altered by the Government’s fiduciary obligations to the ADKFN.

While the Director is employed in the public service, there is nothing in the applicable statutes that confers authority or imposes a duty upon him to decide or enforce anything, nor is there any evidence that any such authority or duty has been delegated to him. Accordingly, the Director does not fall into the category of a “public officer” in these circumstances.

 

Snaw-Naw-As First Nation v Canada (AG), 2020 BCSC 979

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Claim dismissed. It is understandable the First Nation no longer wants their reserve lands bifurcated by a railway functioning under limited use, but it is not so abandoned that “inefficient” use triggers the right of reversion.

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The plaintiff, Snaw-Naw-As First Nation, wants a maintained railway that has bifurcated its reserve lands for decades, no longer alienated from them. The railway is located on Vancouver Island runs from Victoria to Courtenay and transects 1.3 km of the plaintiff’s reserve lands in Nanoose. The right of way is in favour of the defendant, Island Corridor Foundation [“ICF”], that currently owns and operates the railway. It is self-evident that the bifurcation of the plaintiff’s lands imposes limitations on each side and impedes access and development.

At issue is whether this 1.3 km strip of railway should remain alienated from the plaintiff as the infrastructure has deteriorated and rail service has been discontinued except for freight traffic on the Nanaimo spur line. There are circumstances where a court will find that lands held for railway purposes have ceased to be so held and as a result ownership of the right of way ends. However, no authorities have been located that holds a right of way be set aside where the owner holds the lands expressly for railway purposes, uses them for alleged railway purposes, even if in a limited way, and intends to continue to do so. Nor have authorities been found that a right of way may be set aside on the basis of something that may happen in the future.

A formal process must be undertaken to declare or designate the railway “inactive” and to apply for its closure, and there is no intention on the part of the defendant to do so. The entire railway is treated under all laws and regulations as an active railway, although such do not require that actual freight and passenger services be provided. The defendant and its stakeholders operate on the basis that the railway is open and remains active and they continue to conduct business, undertake activities, satisfy all safety regulations, and incur expenses on this basis. Therefore, the claim must be dismissed.

George Gordon First Nation v HMQ in Right of the Province of Saskatchewan and Canada (AG), 2020 SKQB 90

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Application dismissed. The Government of Saskatchewan was not subject to a duty to consult with the First Nation regarding further mineral dispositions, as this was satisfied with the processes stipulated in the Treaty Land Entitlement agreement.

Indigenous Law Centre – CaseWatch Blog

George Gordon First Nation [“GGFN”] initiated this action by statement of claim, naming as defendants Her Majesty the Queen in Right of Saskatchewan [“Saskatchewan”] and Her Majesty the Queen in Right of Canada [“Canada”]. It claimed various relief, including an interim and permanent injunction against the defendants from granting further mineral dispositions in the Jansen Area or Evaporite Area, and ten billion dollars in damages. Where an Entitlement Band requests acquisition of Crown minerals, the Ministry places a temporary freeze on the minerals pending its review of the request. If approved, the freeze will continue to allow the Band time to acquire the surface rights. This freeze period can continue for up to three years.

This application had a long and complex history, but it had the benefit of case management by an experienced justice of this Court. The parties involved in this application are sophisticated and represented by experienced and able counsel. To determine if the summary judgement process was suitable to dispose of this matter, the Court answered three questions in the affirmative: 1) can the judge to make the necessary findings of fact; 2) can the judge to apply the law to the facts; and 3) if this is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak v Mauldin, 2014 SCC 7). This matter was determined suitable for summary judgment. A trial was not required to determine the issues.

The allegation is that both Saskatchewan and Canada had and have a duty to consult with GGFN before Saskatchewan makes any mineral disposition on lands which could be selected by GGFN to satisfy its treaty land entitlement. Canada and Saskatchewan argue there was, and is, no duty to consult. Saskatchewan also argues that the GGFN Treaty Land Entitlement agreement [“TLE”] was intended to conclude the dispute and barred any further claims, including this one.

Canada had a duty to consult with and, where proved, accommodate GGFN and other TLE Bands with respect to land claims under Treaty No. 4. This was done through treaty land entitlement negotiations and agreements, including the GGFN TLE. Saskatchewan had no corresponding duty to consult under Treaty No. 4. Saskatchewan’s obligations under the TLE were to Canada, not GGFN.

Canada and Saskatchewan satisfied any duty to consult through the negotiations leading to the TLE Framework Agreement and, in the case of GGFN, the negotiations resulting in the GGFN TLE. If Saskatchewan had a duty to consult with GGFN about Crown mineral dispositions, that duty was satisfied by its practice of providing information to TLE Bands. GGFN’s claim of a duty to consult that extended to both notice of any applications and a right to supersede those applications went beyond any required consultation and accommodation. This would amount to a veto which the courts have rejected.

Even without a duty to consult, the honour of the Crown would still apply to Saskatchewan’s implementation of the GGFN TLE. Saskatchewan’s practices were fair and balanced. The honour of the Crown, which did apply, was respected. GGFN received the payments to which it was entitled from Canada and was able to obtain within the prescribed period its shortfall acres and other land, with minerals.

The claim of GGFN against Saskatchewan is therefore dismissed. Its claim against Canada was based on a duty of Canada to compel or assist GGFN to enforce its claim against Saskatchewan. The foundation for this claim is lacking. Canada does not exercise supervisory jurisdiction over the provinces with respect to the exercise of their constitutional authority. Nor did the GGFN TLE provide a contractual basis for Canada to compel Saskatchewan to provide GGFN with the requested notice of mineral dispositions and right of first refusal. GGFN’s claim against Canada was premised on a breach of duty by Saskatchewan. Since the claim against Saskatchewan is dismissed, there is no basis for a claim against Canada.

 

 

R v Duncan, 2020 BCSC 590

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Application granted. The Indigenous accused is to be released on bail, subject to stringent conditions, on the tertiary grounds for pre-trial custody in excess of 90 days and concerns surrounding the COVID-19 pandemic in jails.

Indigenous Law Centre – CaseWatch Blog

This matter is a detention review hearing pursuant to s 525 of the Criminal Code. The 32 year old accused from Musqueam First Nation has been in pre trial custody for ten months. His custody relates to multiple alleged offences, including breaking and entering. As per the Gladue factors, his life reflects the intergenerational legacy of the horrific historical treatment of Aboriginal peoples in this country. The accused has a lengthy criminal history.

Counsel for the accused provided new evidence combined with a change in circumstances that warrants a re-visiting and reassessment of the restrictive and supervised treatment program at VisionQuest as a viable and proportionate alternative to the accused’s continued detention. It has culturally relevant programming and a high level of supervision.

The overarching question before the Court is whether the continued detention of the accused until his trial(s) is still justified on one or more of the three grounds specified in s 515(10) of the Criminal Code (R v Myers, 2019 SCC 18). The Court is satisfied that a release plan requiring the accused’s participation in VisionQuest’s isolated residential treatment program combined with strict mobility restrictions would be a culturally responsive and appropriate application of the Gladue factors in this particular case.

There also remains the question of the COVID-19 pandemic. Much of the case law that has developed thus far on this subject deals with the tertiary ground for detention. There are an increasing number of cases which have held that the risk of infection posed to inmates while incarcerated in detention centers awaiting trials is also a valid factor when considering the secondary ground for detention specified in s 515(10)(b) of the Criminal Code (R v TK, 2020 ONSC 1935).

The government is well aware of the risks involved and has implemented a number of measures designed to reduce the spread of the infection in jails. In this particular case Court already concluded that the accused’s proposed release plan satisfactorily addresses public safety concerns, however, COVID-19 concerns would have tipped the balance in favour of interim release rather than continued detention on secondary grounds. Although the break and enter offenses are serious, no physical violence was involved.

The accused is a drug addict with a criminal history of property crimes fuelled by his addiction. That addiction and most, if not all, of the disadvantages he has suffered in life are the product of the sad social problem that is the legacy of the mistreatment of Aboriginal peoples in Canada.