Tag Archives: First Nations

R v Stride-Drew, 2019 NLSC 147

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A first offender’s Aboriginal status triggered a Gladue analysis. She was sentenced to 33 months imprisonment after pleading guilty to sexual interference involving a 14 year old child.

Native Law Centre Case Watch Blog

The Offender pled guilty to sexual interference contrary to s 151 of the Criminal Code [“CC”]. She was 22 years of age and older than the 14 year old victim by 8 years. In this matter, the issue is the determination of a fit and just sentence for the Offender considering the circumstances of this offence. The Crown submits that a term of imprisonment of three years with mandatory ancillary orders is appropriate and is at the low end of a sentence for sexual intercourse with a child under the age of 16 years. The Defence requests a term of imprisonment of two years plus a day be imposed on the basis of Gladue considerations support a sentence outside the range (R v Gladue, [1999] 2 CNLR 252).

S 718.01 of the CC states that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, primary consideration should be given to the objectives of denunciation and deterrence of such conduct. S 718.2 (ii.1) requires that the abuse of a person under the age of 18 years be deemed an aggravating circumstance. S 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality. There is also the instruction to consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention paid to the circumstances of Aboriginal offenders.

The extent of the sexual interference on the victim is very grave and on the high end of the scale. The victim’s unwillingness and distress should have been obvious to the Offender. She took full advantage of the opportunity to sexually abuse the child when she entered the room. The traumatic and long-lasting effects of sexual abuse on children are well known. The victim was only 14 years old, was very upset during the incident which was partially witnessed by two persons who came to his assistance. The victim was also required to testify at a Preliminary Inquiry.

The mitigating factors for the offender is that she is a youthful first offender, she entered a guilty plea to the charge and has expressed remorse. The offender was not in a position of trust with respect to the victim. There was no violence on the part of the offender to perpetrate the offence or evidence of planning to have sexual intercourse with the victim.

The offender is Mi’kmaq and member of the Miawpukek First Nations Band of Conne River. She has a positive attitude towards employment and is very receptive to counselling. She agrees that a Federal term of incarceration would be in her best interests given the available programs. The offender’s upbringing was extremely unstable, as she endured physical violence and mental abuse for many years. She has physical and mental health problems requiring daily medication. While this is not offered at all as an excuse to sexually abuse a child, it does give an understanding of this young Aboriginal woman, how it has impacted her and the offence as Gladue requires. The Court believes her prospects for rehabilitation are positive.

If not for her high degree of intoxication on the date of the offence, the Offender may not have committed this offence, but the facts are very grave. Denunciation and deterrence remain the primary considerations. Other than the Gladue factors, this is not a case where a sentence would be on the low end of the scale. The sentence would be three and a half years imprisonment as imposed in R v Barrett, 2012 NLCA 46. Given the compelling pre-sentence report and a thorough Gladue analysis, that sentence has been reduced to a sentence of 33 months.

Anderson v Alberta (AG), 2019 ABQB 746

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Advanced costs granted. It would be manifestly unjust to either compel the First Nation to abandon its claim or to force it into destitution in order to bring the claim forward.

Native Law Centre

This is an application by the Beaver Lake Cree Nation [“BLCN”] for an order of advanced costs to allow them to proceed with their Statement of Claim filed 10 years ago against Canada and Alberta. The litigation deals with the cumulative effects of the “taking up” of land in the Beaver Lake traditional territory and the damage done thereby on the way of life of the members of the BLCN. An advanced costs decision is ultimately discretionary and there is a high threshold of accountability for using public funds through courts rather than through the legislature or the government bureaucracy.

The Court may award interim costs when a party demonstrates impecuniosity, a meritorious case, and issues of public importance (BC (Minister of Forests) v Okanagan Indian Band, [2004] 1 CNLR 7 [“Okanagan”]; Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2 [“Little Sisters”]). Even if all the criteria are met, there is no right to interim costs. The Court has discretion whether to grant an order for interim costs, or consider other methods to facilitate the hearing of the case depending on its assessment of the individual circumstances of the case.

Impecuniosity means that it would be impossible to proceed with the litigation absent the order of costs. The threshold for proof of impecuniosity is high and it is not to be used as a “smart litigation strategy (Little Sisters). A party seeking such an extraordinary remedy is required to make full and transparent disclosure of its assets, expenses, ability to raise or borrow monies, and ability to obtain counsel, and the likelihood of a contingency fee agreement and an estimate of the costs it requires to fund the litigation (LC v Alberta, 2017 ABQB 93).

The BLCN is an impoverished community with a number of pressing infrastructural and social needs. It has only recently started to turn the corner financially as they accumulate some funds from various sources. The vast majority of the BLCN’s financial assets are not available to fund this litigation. Funding this litigation by the BLCN must be weighed against the community’s other pressing needs. The BLCN has funded this litigation for 10 years through its own sources, it now cannot fund the litigation at the rate required to bring it to trial.

The Court is satisfied that all three elements of the Okanagan/Little Sisters test have been met. This case is sufficiently extraordinary that the Court should exercise its discretion to grant the application. If the BLCN receives compensation or otherwise receives a windfall, then this order shall be revisited. Transparency is required from the parties.

Campbell v Vancouver Police Board, 2019 BCHRT 12

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Intervenor status granted. A First Nations woman must still prove the facts of her human rights complaint against the Vancouver Police Board at the hearing.

Native Law Centre

Deborah Campbell, a First Nations woman, filed a complaint with the Human Rights Tribunal [“Tribunal”] under s 8 of the Human Rights Code [“Code”]. Ms. Campbell felt that the Vancouver police mistreated her when arresting her son because of her visible Indigenous heritage. The Vancouver Police Board [“VPB”] denied the allegation of mistreatment and discrimination. The Union of BC Indian Chiefs [“UBCIC”] applied to intervene in the complaint under s 22.1 of the Code. The UBCIC wanted to provide the Tribunal with context surrounding the relationship between the BC police and Indigenous people as that would allow the Tribunal to gain a better understanding of the complaint. Campbell supported the intervention, and the VPB opposed it in concern that it would expand the scope of the complaint and remove the litigation away from the parties.

The Tribunal has broad discretion to allow a person or group to intervene in a complaint, and to specify the terms of that intervention (Hall v BC (Minister of Environment (No 4)), 2008 BCHRT 437). That discretion is conferred by s 22.1 of the Code. When considering an application to intervene, the Tribunal will balance the likelihood of the intervenor in making a “useful contribution” to the resolution of the complaint against the risk of prejudice to the parties, and the risk that the intervenor will “take the litigation away” from the parties (Hughson v Town of Oliver, 2000 BCHRT 11).

The Tribunal recognized that Indigenous people are disproportionately underrepresented in complaints that are brought before it. There are deep-rooted prejudicial implications of colonialism that continually impact Indigenous people based on their race and ancestry. Evidence of social context, however, was deemed to be inconclusive on its own when determining if discrimination has occurred (Québec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center), 2015 SCC 39). At the hearing, the burden of proof remained on Ms. Campbell to prove the facts of her complaint. Merely establishing a context of “difficult” or “harmful” relationships between the VPD and Indigenous people would be insufficient on its own to determine that VPD violated Ms. Campbell’s rights under s 8 of the Code. The Tribunal considered these factors and granted UBCIC the opportunity to make oral and written submissions at the opening and closing of the hearing. If UBCIC wanted to introduce its own expert advice at the hearing, it was responsible for applying to do so.

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

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

Native Law Centre Case Watch

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

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

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

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

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

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

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

 

Kawartha-Haliburton Children’s Aid Society v MW, 2019 ONCA 316

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Appeal allowed. The Divisional Court erred by applying the wrong framework for access, including the special considerations for Indigenous children, and misstated the approach to summary judgement in child protection matters.

Native Law Centre Case Watch

The Applicant requests access to three of her children in extended care. Her children were apprehended in 2015 by the Respondent, Kawartha-Haliburton Children’s Aid Society, pursuant to the Child and Family Services Act, [“CFSA”]. The appropriateness of the extended care order is not disputed. The mother, however, did not agree to a no-access provision when she consented to a summary judgement motion for Crown wardship. The motion judge made the children Crown wards and denied the mother access to them. The mother appealed to the Divisional Court. By this time, the CFSA was about to be replaced with the new Child, Youth and Family Services Act, 2017 [“CYFSA”]. The major changes to the child protection legislation made pursuant to the CFYSA, such as the transition provisions of the new legislation, the new test for access to children in extended care, the special considerations for Indigenous children, and the proper approach to summary judgment in child protection matters are central to this appeal.

The transitional provisions of the CYFSA required that, at the date it came into force, all cases not “concluded” would be considered under the new Act. This court determines that the word “concluded” is to be taken in the ordinary sense of the word and a decision under reserve means the case is not concluded. Also, the children are First Nations as defined in the CYFSA. They and their family members identify as First Nation with the Curve Lake First Nation. In this matter, the transitional provisions of the CYFSA apply, so that the test for access was pursuant to the new Act that was to replace the CFSA. The criteria for access to children in extended care has been changed by removing the presumption against access, making the child’s “best interests” predominant in determining access, and emphasizing the importance of preserving Indigenous children’s cultural identity and connection to community. The record was insufficient to satisfy the new test pertaining to the children’s Indigenous heritage (Catholic Children’s Aid Society of Hamilton v GH, TV and Eastern Woodlands Metis of Nova Scotia, 2016 ONSC 6287 [“GH”]). The Act is remedial legislation and should be interpreted liberally especially for Indigenous children. By applying the transitional provisions to cases under reserve, thereby not “concluded”, these children would not be caught in a legislative void.

The CYFSA changed the considerations for access. The test for access to a Crown ward under the old Act was strict. The onus was on the person seeking access to establish that the relationship was meaningful and beneficial. There was a presumption against access and opportunities for adoption were prioritized over other considerations. Under the new Act, the court shall not make the access order unless it is satisfied that it is in the best interests of the child. It is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. The Divisional Court did not properly address the issue of the sufficiency of the record because it applied the old Act.

The Divisional Court also erred by misapplying the key principles regarding the use of summary judgment to the specific circumstances of child protection proceedings (Hryniak v Mauldin, 2014 SCC 7 [“Hryniak”]). Hryniak’s fairness principle requires that exceptional caution is needed for summary judgment in the child protection context by reviewing the Charter implications of child protection proceedings. Child protection litigation engages the Charter rights of both parents and children (New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 SCR 46). The courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. Women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings (G(J)). The cautious approach to summary judgment in child protection has long been recognized by lower courts and by this court (Children’s Aid Society of Halton (Region) v A (KL) (2006), 216 OAC 148).

The proper approach to summary judgment in child protection proceedings must exercise caution and apply the objectives of the CYFSA, including the expanded best interests of the child test. This court sets aside the motion judge’s order and refers this matter back to the Superior Court on an expedited basis to determine the question of access pursuant to the CYFSA.

NC v Kunuwanimano CFS and Fort Albany First Nation, 2019 CFSRB 7

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The decision of the Respondent to refuse the adoption of three Indigenous children placed in the Applicant’s care is confirmed under s 192 of the Child, Youth and Family Services Act.

Native Law Centre Case Watch

The Applicant requested a review pursuant to s 192 of the Child, Youth and Family Services Act, [“Act”]. This application refers to a decision made in favour of the Respondent, Kunuwanimano Child and Family Services, [“KCFS”] who refused the Applicant’s application to adopt three children who were placed in her care for two years. The children were apprehended from the care of their parents by the North Eastern Ontario Child and Family Services and made Crown Wards without access for the purpose of adoption. The children’s mother, who is deceased, and their father have membership with the Fort Albany First Nation [“FAFN”]. The children’s files were transferred to the KCFS, an Indigenous child welfare agency and were subsequently placed in a foster home. After three years the foster home could no longer care for the children due to uncontrollable circumstances. The children were then placed in the care of the Applicant and remained in her care for almost two years until their abrupt removal.

The Child and Family Services Review Board’s [“CFSRB”] determination is made in accordance with the expanded definition of the test for the best interests of the child set out in s 179(2) of the Act. In addition to giving prominence to the child’s views and wishes, as well as the recognition of Indigenous cultures and connections to their community, the preamble of the Act also acknowledges that children are individuals with rights to be respected and voices to be heard.

SV, who is the most recent placement for the children, is a member of the Moose Cree First Nation and grew up alongside the children’s father. The evidence is clear that SV has strong connections to the children’s community and cultural heritage. Her practices are traditional in her home where the children are introduced to hunting and fishing and that this was consistent with a way of life, rather than simply an activity. She has taken significant measures to connect the children to their extended family with whom she is well acquainted.

In contrast, the Applicant has no significant ties to the children’s First Nations community or extended family. The Applicant knows very little about the cultural practices of the children’s Indigenous community, or the Illilu people. It was clear that she cares deeply for the children and wishes to adopt all three of them. Her evidence, supported by report cards and the agency’s own documents, was that they were well-cared for in her home and had developed a bond with her and her family. The views and wishes of the children also confirmed the strong bond that the children have with the Applicant. The abrupt removal of the children from her care was traumatic for her and also for the children.

The CFSRB, however, is also mindful of the view of family and community that is expressed by the FAFN and the emphasis on customary care alternatives for Indigenous children under the Act. It is also through the current placement that the children are reconnecting with their father, albeit not as a primary caregiver. While SV is not a direct relation to the children, it is clear that she has strong historical and current connections to the children’s extended family and is committed to facilitating their relationships with family as much as possible. The Applicant simply cannot offer the same commitment and ease of connection to family as SV.

Of considerable importance to our determination is the connection between the siblings. They have always been together and expressed a wish to remain that way. The CFSRB finds that to separate the Children at this time would not be in their best interests and along with all the above factors, favours confirmation of the Respondents’ position. The CFSRB, however, is also of the view the children were not given the opportunity to properly say good-bye to the Applicant and suggested that the KCFS facilitate an acknowledgement and contact to bring some finality to these unresolved feelings.

Schemenauer v Little Black Bear First Nation, 2018 SKQB 203

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

Native Law Centre Case Watch

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

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

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

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

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

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

R v Desautel, 2019 BCCA 151

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

Native Law Centre Case Watch

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

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

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

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

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

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

R v Kirby Offshore Marine Operating LLC, 2019 BCPC 185

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The Court accepted a joint submission with the total fines of $2,905,000 imposed on the defendant after a sentencing hearing and Talking Circle was conducted in the traditions of the Heiltsuk Nation.

Native Law Centre Case Watch Blog

The defendant, Kirby Offshore Marine Operating LLC, operates one of the largest inland and offshore tank barge fleets in the United States. One of its tugs en route from Alaska to Vancouver, ran aground and sank at a reef in the traditional territory of the Heiltsuk Nation due to the operator falling asleep. Contamination of the environment occurred as diesel fuel and lubricants were released from ruptured tanks on the tug into the ocean. A joint submission was made which was accepted by the Court with total fines of $2,905,000 dollars imposed. There are 3 offences which the defendant has pled guilty: 1) unlawful deposit of diesel fuel contrary to ss 36(3) and ss 40(2) of the Fisheries Act; 2) unlawful deposit of diesel fuel contrary to ss 5.1(1) and s 13(1)(a) of the Migratory Birds Convention Act, 1994; and 3) unlawful pilotage by proceeding through an area without a licensed pilot or the holder of a pilotage certificate contrary to s 47 of the Pilotage Act.

A sentencing hearing was conducted in the traditions of the Heiltsuk Nation with a Talking Circle. The Hereditary Chiefs, Elders, elected Chief, along with other members of the community sat with counsel and the Court in a circle, which was a solemn and tradition filled forum. The Hereditary Chiefs in full ceremonial garments, placed their coppers on top of cedar boughs in the middle of the circle and spoke about the damage to their resources, the infliction of insult and trauma upon their ancestral lands and culture, as well as their economic losses. The history of the Heiltsuk stretches 14,000 years as stewards of their lands, oceans and resources. They have a special relationship to their home as it is closely held to their environment and their heritage. There is a sense of despair with the dissipation of the spiritual energy as the beaches and resources have been soiled with diesel and oil. There is anger over the damage to their oceans and is a breach of their traditional laws of respect and good care for the lands and oceans.

There are five sentencing principles for environment offences: 1) culpability; 2) prior record and past involvement with authorities; 3) acceptance of responsibility and remorse; 4) damage and harm; and 5) deterrence (R v Terroco Industries Limited, 2005 ABCA 141 [“R v Terroco”]; R v Brown, 2010 BCCA 225).

This is a strict liability offence and the assessment for the dominant factor of culpability must be to determine the degree of blameworthiness which is on a sliding scale; is the conduct an intentional act or a near miss of the due diligence standard? In this case, the offence was not intentional as the operator had fallen asleep, but it was not a near miss as the offence could have been avoided. Within the range of culpable conduct, this would be towards the higher end of the degree of blameworthiness. The defendant has no prior record and past involvement with authorities. The defendant’s acceptance of responsibility is reflected by the guilty pleas which are significant, as it acknowledges the wrongful conduct, which saves considerable court time. The defendant is remorseful and the post offence conduct also establishes acceptance of the harm done.

Assessing the degree of harm factors in actual harm in the evaluation of the sentence. Determining actual harm may be difficult given the gradual and cumulative effects of pollution. Identifiable injury is an exacerbating factor, while the lack of an actual injury is not a mitigating factor (R v Terroco). The greater the potential for harm, the greater the warranted penalty. The potential for harm is informed by the probability of the risk, the nature of the product, the likely magnitude of damage if the risk materializes and the sensitivity of the site including its proximity to population and fragile environment (R v Terroco). In this matter, the absence of proximity to population is not a factor that reduces the degree of harm. While the site of the spill was relatively remote, it was close to the community of Bella Bella and is an area that is actively used by the Heiltsuk people to access natural resources. The nature of diesel is highly deleterious as even small amounts can kill fish. The spread of water borne contaminants over vast areas of the ocean in such a sensitive environment is also an aggravating element.

Specific and general deterrence are both dominant features in sentencing pollution cases. Although the defendant has been deterred, it is the message to others that must be clear and unambiguous. The objective of deterrence is to ensure that not only the offender but others are acutely aware that they owe a high duty to be vigilant in protecting this sensitive environment.

The Heiltsuk Nation made clear in the Talking Circle that no amount of monetary fine could justify the damage that had occurred to their traditional lands. It was asked that the defendant be banned from their traditional waters. Within the framework of the operative legislation the Court does not have the jurisdiction to make such an order. The fines imposed are directed to be paid to the Environmental Damage Fund that is to be administered for the benefit of the Heiltsuk First Nations for the purposes of restoration of the habitat affected by the environmental damage.

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

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Reply

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

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

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

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

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

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

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