Tag Archives: Indian Act

Taylor et al v Ginoogaming First Nation, 2019 ONSC 0328

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A Trust agreement’s payments are not extended to individuals who became members of the Ginoogaming First Nation after a designated payout day, even if they should have been a member on that date but for the discriminatory provisions of the Indian Act.

Native Law Centre Case Watch

The Trustees of the Ginoogaming First Nation Timber Claim Settlement Trust [“Trust”] brought an application concerning the interpretation of the Timber Claim Trust Agreement [“Trust Agreement”]. The Ginoogaming First Nation [“GFN”] is a Band pursuant to the terms and provisions of the Indian Act. The GFN is the settlor of the Trust. Prior to the Ginoogaming Timber Claim Settlement Agreement [“Settlement Agreement”] being entered into between the GFN and the Government of Canada, the terms and conditions of the Settlement Agreement and the Trust Agreement were put to the members of the GFN and approved in a ratification vote [“Voting Day”]. Article 12.5 of the Trust Agreement, provides for a one-time payment to be made to members of the GFN on the Voting Day. The discriminatory provisions of the Indian Act, RSC, 1985 c I-5 [“Indian Act”] were in effect at that time. At issue in this appeal is that some individuals were able to become members since two amendments to the Indian Act, and are they therefore eligible for the one time payments from this Trust.

The two significant legislative changes to the Indian Act arose from two court decisions, McIvor v Canada (Registrar of Indian and Northern Affairs), [2009] 2 CNLR 236 (BCCA) leave to appeal to the SCC refused, 33201 (2009) [“McIvor”] and Descheneaux c Canada (Procureur Géneral), [2016] 2 CNLR 175 (QCCS) [“Descheneaux”]. The Gender Equity in Indian Registration Act [“Bill C-3”] was in response to McIvor, but it focused exclusively on the specific circumstances outlined in McIvor and inequities persisted. Bill C-3 had not gone far enough to remedy the inequities perpetuated by the Indian Act. The federal government’s response to Descheneaux was Bill S-3, an Act to amend the Indian Act through the elimination of sex-based inequities in registration, which received royal assent on December 12, 2017.

Even though it is recognized by the court that but for the discriminatory provisions of the Indian Act at the time those individuals should have been members on the Voting Day, they were not and therefore are excluded from the benefit of the payment provided for in the Trust. When it comes to Article 12.5, the settlors of the Trust expressed an intention to limit the payment to those individuals who were members of the GFN on the Voting Day. The applicants neither sought to vary the terms of the Trust, nor to have certain provisions declared void. It is not the role of an interpreting court to change the plain meaning of a trust document. Article 16 of the Trust Agreement specifically provides for changes or amendments to the terms of the Trust Agreement if approved by a vote of the Members. It is also open to the Trustees to bring an application for a variation of the terms of the Trust if otherwise permitted by law.

 

 

 

Toney v Toney Estate, 2018 NSSC 179

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Application allowed. The surviving spouse, who is non-Status and a non-band member, has been allowed to continue to occupy a family home on reserve.

Wiyasiwewin Mikhiwahp Native Law Centre
Case Watch

Marlene Toney, a widow, sought an order for indefinite exclusive occupation of her family home on reserve pursuant to s 21 of the Family Homes on Reserves and Matrimonial Interests or Rights Act [“FHR”]. The order also included half the value of her late husband, Lawrence Toney’s interest in the home and outbuildings pursuant to s 34 of FHR. Central to this application was the fact that Marlene is non-Status and a non-band member of the Annapolis Valley First Nation [“AVFN”]. For over 30 years, she and her spouse lived in their family home, investing over $140,000.00 of their own money in permanent improvements after Lawrence obtained a Certificate of Possession for the house in 1998. Marlene was an active part of the community for many years, and even served as the band manager for two years until she was diagnosed with multiple sclerosis. The only substantial asset in Lawrence’s estate is his right and interest in the Certificate of Possession for the land upon which the family home sits and the house itself.

The FHR also includes detailed “Provisional Federal Rules” [“Rules”] intended to govern First Nation communities that have not enacted matrimonial property laws of their own. These Rules, however, apply only to First Nations that have not yet enacted matrimonial property rules under the FHR. Any validly enacted First Nation laws oust the Rules in respect of that First Nation. If a First Nation has signed a self-government agreement with the federal government, under which it has power to manage its reserve lands, the Rules do not apply, even if the First Nation has not enacted matrimonial property laws of its own, unless the federal minister declares that the Rules apply to that First Nation. A First Nation enrolled under the First Nations Land Management Act [“FNLMA”] can oust the application of the Rules by bringing into effect a land code, separate matrimonial property laws under the FNLMA, or matrimonial property laws under the FHR. The FHR identifies how these Rules apply to First Nations who have adopted a land code pursuant to the FNLMA, and to First Nations under self-government agreements with the federal government. It is agreed that AVFN has not entered a self-government agreement with the federal government, nor enrolled under the FNLMA. These Rules apply to the AVFN.

The case at hand is the first decision to provide a comprehensive analysis of the FHR, in particular ss 21 and 34. These sections authorize courts to grant exclusive occupation of the family home and compensation to a surviving spouse for interests in matrimonial assets. The FHR respects the principle of non-alienation of reserve lands and its rules do not lead to non-Status or non-band members acquiring permanent or tangible interests in reserve lands pursuant to s 21 or receiving compensation for the value of reserve lands pursuant to s 34. The FHR, however, balances the equality rights of spouses under ss 15 and 28 of the Charter along with recognition of Aboriginal and Treaty rights under s 35 of the Constitution Act (1982).

Women appeared to have played an important and equal role in all aspects of tribal life and governance in most First Nations during pre-colonial times, and some were even matrilineal societies. The interpretation of the FHR recognizes the role and status of spouses of either gender, not if they are both members of the band. This is consistent with this appearance of Aboriginal values in pre-colonial times as shown in the Royal Commission on Aboriginal Peoples [RCAP]. Gender equality is a universal value that transcends nationality or race and it is in this context that the FHR promotes and protects a compelling and substantial legislative objective. The Court awarded Marlene indefinite exclusive occupation of the family home pursuant to s 21 of FHR, with the condition that she does not cohabitate with anyone during her occupation, except for one of her children or grandchildren. She must maintain the home and not commit waste.

UN Rules That Canada’s Indian Act Discriminates Against First Nations Women

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

UN International Covenant on Civil and Political Rights, Human Rights Committee, Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2020 / 2010. (View decision here)

This case involved a claim by Ms. Sharon McIvor, and her son Mr. Jacob Grismer (the authors) against the State of Canada for violation of their rights under articles 3 and 26, read in conjunction with article 27. On September 1985, Ms. McIvor applied for registration status for herself and her children under the Indian Act (“Act”), as Indian status under the Act confers significant tangible and intangible benefits. The Registrar for Indian and Northern Affairs Canada determined that she was entitled to registration under s.6(2) of the Act and not s.6(1). Although they are descendants of Mary Tom, a First Nations woman born in 1888, at birth Ms. McIvor was initially not eligible for Indian status, as the claim would be based on matrilineal descent. She filed a statutory appeal against the decision.

The British Columbia Supreme Court indicated that s.6 of the Indian Act discriminated on the grounds of sex and marital status between matrilineal and patrilineal descendants born prior to April, 1985 and against Indian women who had married non-Indian men. On appeal, The British Columbia Court of Appeal narrowed the declaration of the British Columbia Supreme Court, finding that s.6 of the 1985 Indian Act was discriminatory, but only to the extent that it grants individuals to who the double-mother rule applied greater rights than they would have had under the pre-1985 legislation. They only found discrimination to a small subset of descendants of male Indians. Leave to appeal was refused without reasons.

Following the passage of the Indian Act, and with the intention to eliminate sex discrimination, it was alleged by Canada that Ms. McIvor could now achieve full Indian status. She contended, however, that being ineligible for Indian status under s.6(1)(a), she still does not receive the full protection of Indian status. Under her s.6(1)(c) registration, she is only able to transmit partial status to her son Jacob and is unable to transmit Indian status to her grandchildren. In contrast, her brother is eligible for full s.6(1)(a) registration status and can transmit his full status to his children. As well, Mr. Grismer, having married a woman with no First Nations ancestry, does not have standing to pass status to his children.

The authors alleged that s.6 of the 1985 Indian Act violates article 26 and article 27 in conjunction with articles 2(1) and 3 of the Covenant (reproduced below for reference) in that it discriminates on grounds of sex against matrilineal descendants and Indian women born prior to April 17, 1985. As a result of the sex-based hierarchy of this status regime, McIvor expressed a sense of stigmatization amongst Indigenous communities from women who do not have s.6(1)(a) status. Mr. Grismer also expressed a sense of isolation from not being s.6(1)(a) eligible, as he is unable to participate fully in hunting and fishing activities.

In respect of article 27, as read in conjunction with articles 2(1) and 3, the authors argued that the capacity to transmit cultural identity is a key component of cultural identity itself. S.6 has the effect of denying female ancestors and their descendants the right to full enjoyment of their cultural identity on an equal basis between men and women, in violation of article 27, read along with articles 2(1) and 3 of the Covenant.  Finally, in respect of article 2(3)(a), the authors also argued that the State had failed to provide the authors with an effective remedy for the violation of their rights under articles 26 and 27 in conjunction with articles 2(1) and 3. The only effective remedy will be one which has eliminated the preference for male Indians and their patrilineal descent and confirms the entitlement of matrilineal descendants.

In response, Canada argued that in respect of articles 26, 2(1) and 3, that the Indian Act does not create classes of Indians. On the contrary, the paragraphs in section 6(1) of the 1985 Indian Act are essentially transitional provisions, indicating for persons born before 1985, and how eligibility moves from the 1951 Indian Act registration regime to the 1985 Act, and now the 2011 criteria. Therefore, Ms. McIvor is eligible for status under the criteria of s.6(1)(c), her son is eligible based on the criteria under s.6(1)(c.1) and his children are eligible under the criteria set out in s.6(2). All individuals with status are treated the same in respect of legal rights. According to Canada, what the authors seek would potentially involve descendants of many generations removed from the female ancestor who initially suffered discrimination based on sex. The State party is not obligated to rectify discriminatory Acts that pre-dated the coming into force of the Covenant. Moreover, as of November 29, 2017, a new Bill S-3 extends eligibility for status to all descendants who have lost status because of their marriage to a non-Indian man. These provisions are subject to a delayed coming into force clause allowing for consultation with First Nations and other Indigenous groups.

Ms. McIvor and Mr. Grismer contend that although the 1985 Act was amended in 2011, it still excludes from eligibility for registration status Indigenous women and their descendants, who otherwise would be entitled to register if sex discrimination were completely eradicated from the scheme. They also contend that there is more than one Indian status, as s.6(1)(a) status is superior and comes with greater intangible benefits than s.6(1)(c) or s.6(2).

In respect of article 27, Canada argued that the authors have not adequately claimed or substantiated a violation of their right to enjoy their culture. Specifically, they have failed to substantiate any violation of their right to enjoy the particular culture of their Indigenous group. Indian status is but one facet of the identity for those that are eligible. The legislated scheme does not and cannot confer personal dignity. The authors, however, argued that they have sufficiently demonstrated a right to equal exercise and enjoyment of their culture, in particular their right to the full enjoyment of their Indigenous cultural identity and that the effect of the law is to exclude the authors from their right to transmit their culture along matrilineal lines.

The Committee found this issue admissible, as the essence of the authors’ claim rests in the alleged discrimination inherent to the eligibility criteria in s.6 of the Indian Act, despite the fact that the loss of status occurred before the entry into force of the Covenant. Additionally, while the alleged harm is argued not to flow from the State laws, the Committee accepted the authors’ contention that the discriminatory effects arose out of the State’s regulation of Indian registration. Other allegations of the State are dismissed with reference to the Committee’s prior jurisprudence.

In considering the merits of the decisions, the Committee made several notes from the arguments above. Of importance are the notes of (1) the authors’ argument that as a consequence of discrimination based on sex in the Indian Act, they have been stigmatized within their community and denied full opportunity to enjoy their culture with the other members of their Indigenous group and that (2) the authors’ argument that the State’s century-old unilateral defining of who is an Indian has led Indigenous people to view legal entitlement to registration status as confirmation or validation of their “Indian-ness”. The Committee further recalled the General comment No. 23, that article 27 establishes and recognizes a right which is conferred on individuals belonging to Indigenous groups, which is distinct from the other rights all persons are entitled to under the Covenant.

In light of these arguments, and from weighing them against the principles articulated above, the Committee found that under article 5(4) of the Optional Protocol, that the facts disclose a violation by the State party of the authors’ rights under articles 3 and 26. Canada is therefore under an obligation to provide the authors with an effective remedy.

See here for a copy of the UN Covenant on Civil and Political Rights

Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 27: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Article 2: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 3: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

 

Canada (Canadian Human Rights Commission) v Canada (AG), 2018 SCC 31

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Appeal dismissed. Tribunal decisions stand that the complaints were a direct attack on legislation. Legislation not a service under the Canadian Human Rights Act.

This appeal concerns several complaints alleging that Indian and Northern Affairs Canada (“INAC”) engaged in a discriminatory practice in the provision of services contrary to Section 5 of the Canadian Human Rights Act (“CHRA”). This section prohibits, among other things, the making of discriminatory distinctions in the provision of services customarily available to the general public. The Indian Act, since its enactment in 1876, has governed the recognition of an individual’s status as an “Indian”. The Indian Act has a registration system under which individuals qualify for this status on the basis of an exhaustive list of eligibility criteria. It is incontrovertible that status confers both tangible and intangible benefits. INAC denied a form of registration under the Indian Act that the complainants would have been entitled to if past discriminatory policies, now repealed, had not been enacted.

In two separate decisions, Matson v Canada (Indian and Northern Affairs), 2013 CHRT 13 and Andrews v Canada (Indian and Northern Affairs), 2013 CHRT 21 (“Andrews”), the Canadian Human Rights Tribunal (“Tribunal”) determined that the complaints were a direct attack on the Indian Act. On the basis that legislation is not a service under the CHRA, it dismissed the complaints. On judicial review, both the Federal Court ([2015] 3 CNLR 1) and the Federal Court of Appeal ([2016] 4 CNLR 1), found that the Tribunal decisions were reasonable and should be upheld. Two issues were before this Court: (1) whether deference is owed to a human rights tribunal interpreting its home statute and (2) whether the Tribunal’s decisions dismissing the complaints as direct attacks on legislation were reasonable.

On the first issue, where an administrative body interprets its home statute, there is a well-established presumption that the reasonableness standard applies. In applying the standard of review analysis, there is no principled difference between a human rights tribunal and any other decision maker interpreting its home statute. Where an administrative body interprets its home statute, the reasonableness standard applies Dunsmuir v New Brunswick, 2008 SCC 9 (“Dunsmuir”). In both of its decisions, the Tribunal was called upon to characterize the complaints before it and ascertain whether a discriminatory practice had been made out under the CHRA. This falls squarely within the presumption of deference. The Tribunal clearly had the authority to hear a complaint about a discriminatory practice, and the question of what falls within the meaning of “services” is no more exceptional than questions previously found by the Court not to be true questions of jurisdiction.

A contextual analysis would not rebut the presumption in this case. Where the presumption of reasonableness applies, the contextual approach should be applied sparingly in order to avoid uncertainty and endless litigation concerning the standard of review analysis. The presumption of reasonableness was intended to prevent litigants from undertaking a full standard of review analysis in every case. This Court may eventually find it necessary to revisit the standard of review framework. However, dissatisfaction with the current state of the law is no reason to ignore the precedents following Dunsmuir. Where a contextual analysis may be justified to rebut the presumption, it need not be a long and detailed one. Changes to “foundational legal tests” are not clear indicators of legislative intent, and do not warrant the application of the contextual approach or, by extension, correctness review. Nor does the absence of a privative clause, the fact that other administrative tribunals may consider the CHRA, the potential for conflicting lines of authority, or the nature of the question at issue and the purpose of the Tribunal.

On the second issue, the adjudicators reasonably concluded that the complaints before them were properly characterized as direct attacks on legislation, and that legislation in general did not fall within the meaning of “services”. Although human rights tribunals have taken various approaches to making a distinction between administrative services and legislation, this is a question of mixed fact and law squarely within their expertise, and they are best situated to develop an approach to making such distinctions.

The adjudicator in Andrews noted that the sui generis nature of Parliament’s power to legislate is inconsistent with the characterization of law-making as a public service and that law-making does not have the transitive connotation necessary to identify a service customarily offered to the public. Parliament is not a service provider and was not providing a service when it enacted the registration provisions of the Indian Act. Law-making is unlike any of the other terms listed in s 5 as it does not resemble a good, facility or accommodation. It is sui generis in its nature. This is confirmed by the powers, privileges and immunities that Parliament and the Legislatures possess to ensure their proper functioning, which are rooted in the Constitution. The dignity, integrity and efficient functioning of the Legislature is preserved through parliamentary privilege which, once established, is afforded constitutional status and is immune from review. The disposition of this appeal, however, says nothing as to whether the Indian Act infringes the rights of the complainants under s 15 of the Charter. In this regard, there have been two successful challenges to the Indian Act registration provisions, both of which have prompted legislative reform (Descheneaux v Canada (Attorney General) [2016] 2 CNLR 175 (QCCS); McIvor v Canada (Indian and Northern Affairs, Registrar), [2009] 2 CNLR 236 (BCCA).

Furthermore, Parliament can be distinguished from the administrative decision makers that operate under legislative authority. These individuals and statutory bodies, which include the Registrar, may be “service providers”, or entities that provide services customarily available to the general public. If they use their statutory discretion in a manner that effectively denies access to a service or makes an adverse differentiation on the basis of a prohibited ground, s 5 will be engaged. But, when their job is simply to apply legislated criteria, the challenge is not to the provision of services, but to the legislation itself (Public Service Alliance of Canada v Canada Revenue Agency, 2012 FCA 7). The complaints did not impugn the means by which the Registrar had processed their applications, but substantively targeted the eligibility criteria that the Registrar was required to apply. Both Tribunal decisions stand on their own merits.

MRC de Roussillon v MRN, 2017 QCCS 3744

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Application dismissed. There is no duty to consult between the province and its municipalities about lands being transferred to the Federal government for the purposes of adding to a First Nation reserve.

The Applicants sought to have an Order in Council of the Government of Québec declared invalid on the basis of bad faith or abuse of power by the Québec government. The Order concerns vacant lands located on the territory of the Municipalité Régionale de Comté de Roussillon (“RCM”) and adjacent to the Kahnawake Reserve (the “Lands”), which the Ministère des Transports du Québec (“MTQ”) acquired several years ago to extend a highway. With the extension completed, the Lands were no longer needed for road purposes. The Order transfers the usufruct of the Lands to the Government of Canada for a possible addition to the territory of the Kahnawake Reserve. In the alternative, the Applicants also argued that condition No. 3 of the Order is ambiguous and void, as it has the effect of expanding the Kahnawake Reserve. They claim the Province does not have the legislative authority to create an Indian Reserve.

The Order transfers the usufruct of the Lands free of charge to the federal government for the benefit of the Kahnawake Mohawk Indian Band. Some of the Lands and the extension of the highway were located on the territory of the Seigneurie du Sault-Sault-Louis (SSSL), for which the Mohawks of Kahnawake filed a specific claim in the early 1990’s, alleging that the King of France gave them the territory. Since 2003, this specific claim has been under discussion with the federal government and is still ongoing.

The mechanism for transferring lands of the Québec province in order to reserve them for Indians is regulated under Québec and federal laws. The Minister of Natural Resources and Wildlife first designates the lands, and then the Québec government may “reserve and allot” the lands by adopting an order to transfer, gratuitously, the usufruct of the lands to the Government of Canada, with a view to administering it in trust for the Indian bands. No other legislative condition limits the exercise of the Québec government’s discretion in this regard. The Order, however, is only the first step in an administrative process by which the provincial lands will be added to the Kahnawake reserve as “designated lands” within the meaning of section 2(1) of the Indian Act. The process of creating an Indian reserve or adding to an existing reserve (known as “ATR” – Additions to Reserves) is subject to a specific legislative framework. A federal directive also regulates the ATR process including “an early and healthy dialogue between the First Nation, the public and affected individuals and interest groups to increase awareness and deal with potential issues”. However, “municipal governments do not have a general or unilateral veto over the granting of reserve status” and discussions with municipal governments “should not unreasonably delay the proposal” of an ATR.

The Order is political and therefore a purely administrative decision of the Québec government, or Cabinet, which is the top of the administrative and political power hierarchy. The adoption of the Order is a political decision and carries no obligation of procedural fairness or consultation with regard to the individuals affected. In respect of the autonomy, latitude and discretion enjoyed by the government in this area, any challenge to such a decision can be based only on very limited grounds. In making a political decision, the government cannot act against the law or abuse its discretion. The Order does not contravene any law. As for the rest, the government must answer for its political decisions to the electors and not the courts.

Lac Seul First Nation v Canada, 2017 FC 906

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Canada breached its fiduciary duty to the Plaintiffs and must pay equitable damages of $30 million; third party claims against Ontario and Manitoba dismissed.

The Lac Seul First Nation [LSFN] claimed that Canada breached its treaty with the LSFN (Treaty No. 3), the Indian Act, and its fiduciary duties and obligations. LSFN sought damages from Canada for losses from the flooding of part of the LSFN Reserve following the construction of the Ear Falls Storage Dam where Lac Seul drains into the English River. LSFN requested punitive damages and costs along with equitable compensation for a loss of opportunity for hydroelectric benefits, past present and future, in the amount of $506.6 million including avoidable losses due to erosion, loss of timber and community infrastructure in the amount of $40 million.

The Lac Seul Storage Project provided the water reservoir necessary to permit power generation for the City of Winnipeg and Northwestern Ontario. In 1929, the Ear Falls Storage Dam was completed, as part of a project to maximize the potential for hydroelectric developments on the Winnipeg River in Manitoba to provide power to the City of Winnipeg. The parties agreed that this part of the LSFN Reserve land is now under water. With the flooding, the LSFN lost the use and enjoyment of this portion of its Reserve. Other impacts from flooding on the LSFN included lost houses, wild rice fields, and the separation by water of two of its communities, Kejick Bay and Whitefish Bay.

Ultimately the Court assessed the Plaintiffs’ equitable damages at $30 million. The factors considered included the amount of the calculable losses and that many of the non-quantifiable losses created in 1929 persisted over decades, and some still continue. The failure to remove the timber from the foreshore created an eyesore and impacted the natural beauty of the Reserve land. This created a long-term water hazard effecting travel and fishing for members of the LSFN. The flooding negatively affected hunting and trapping. Although Canada supplied the materials to build the replacement houses, the LSFN members supplied their own labour. The LSFN docks were not replaced, as well hay land, gardens and rice fields were destroyed. Two LSFN communities were separated by water and one became an island, impacting the ease of movement of the people who lived there. Canada failed to keep the LSFN informed and never consulted with the band on any of the flood related matters that affected it, creating uncertainty and anxiety for the band. Canada failed to act in a prompt and effective manner to deal with compensation with the LSFN prior to the flooding and many years after the flooding, despite being aware of the negative impact on the band members.

It was determined that this $30 million in equitable compensation would be sufficient to put LSFN back in the place they would have been but for the breach and would meet the objectives of retribution, deterrence, and denunciation, as there have been no punitive damages awarded in an Aboriginal law context. A declaration was also sought that the LSFN legal interests in the flooded lands and the freeboard area have not been encumbered or extinguished. Canada admitted and accepted that LSFN had “retained the flooded Reserve lands.” A declaration would therefore serve no purpose. Canada claimed a defence of laches, but this defence does not apply as the trial record revealed a singular failure of Canadian government departments to communicate with the members of the LSFN. Similarly, the decisions made regarding the cutting of timber on the foreshore, the use of the unemployed men as a relief project, and its later abandonment were events that also occurred with little or no communication with the LSFN. Lastly, the negotiation of a payment to the LSFN was done in 1943 and accepted by Canada with no evidence that the LSFN was ever informed of the structure of the settlement, or its amount.

It is inexplicable in the evidence as to why Canada took no steps either at the time of the first flooding or subsequently to legally authorize the expropriation through flooding of these Reserve lands. Moreover, no compensation was paid to LSFN relating to the flooded lands or consequent damages suffered until November 17, 1943, which was not an appropriate amount and was in breach of Canada’s fiduciary duty to LSFN. Canada defended the main action and commenced third party claims against both Ontario and Manitoba for contribution and indemnity, pursuant to the terms of the Lac Seul Conservation Act (Canada) and An Act Respecting Lac Seul Storage (Ontario). Where the third parties have no fiduciary duty to the beneficiary, the defendant cannot apportion its liability for equitable compensation to them. Canada is not being asked to pay more than its share of the losses as it is solely responsible for them.

Rosemary Lamb v Her Majesty the Queen 2018 NBQB 213

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

A woman who acquired Indian status within the meaning of the Indian Act through marriage does not lose registered status as a result of divorce. Powley does not require courts to apply the Powley factors each time a person purporting to be Indian within the meaning of the Indian Act comes before the court.

In Rosemary Lamb, the Queen’s Bench of New Brunswick considered whether Ms. Lamb, a Caucasian woman who had acquired Indian status within the meaning of the Indian Act through marriage to Mr. Augustine, an Aboriginal man, continued to retain such status following her divorce. Prior to their marriage Ms. Lamb had two children with Mr. Augustine. The two were subsequently married in 1984 and divorced shortly thereafter. In 2017, Ms. Lamb was convicted for hunting moose out of season. Ms. Lamb contended that she continues to have hunting rights that flow from her Indian status with the Burnt Church First Nation. Overturning the trial decision, the Court held that her Indian status had been obtained in 1979 when she married Mr. Augustine, and continues even after divorce.

The trial court held that the Powley criteria must be applied to the evidence to determine the Aboriginal identity at law. The criteria includes Aboriginal ancestry, cultural awareness and community acceptance. Ms. Lamb, a self-represented litigant, did not provide any meaningful evidence of Aboriginal ancestry nor was she meaningfully connected to the Burnt Church First Nation community. Since she could not prove Aboriginal ancestry or cultural awareness, the trial court determined that Ms. Lamb was not an “Indian” within the meaning of the Indian Act.

In this appeal, however, the Court held that the trial court had made an error of law resulting from an incomplete legislative history. After reviewing the history of statutes governing Aboriginal identity at law (omitted here), the Court observed that as the wife of a person entitled to be registered, pursuant to s.11(1)(f) of the Indian Act, Ms. Lamb continues to be registered as an “Indian” within the meaning of the Indian Act even after her divorce. The general principle in Bernard asserts that Aboriginal rights are to be governed by the existence of a historic and present community and may only be governed by virtue of an individual’s ancestrally-based membership in the present community. It was also noted that the Bernard case allows for Aboriginal rights to be provided where an ancestral connection can be made out based on “other means”. In the Court’s opinion, marriage falls into this category. Failing to see any removal of membership provision of the Indian Act that provides for the removal of people from their Aboriginal rights, the Court concluded that Ms. Lamb must continue to retain her Indian status and the guilty conviction was set aside.

Gift Lake Métis Settlement v Alberta, 2018 ABQB 58

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The Applicants’ claim that the membership provisions in ss 75, 90 and 91 of the Métis Settlements Act of Alberta are invalid due to the principle interjurisdictional immunity, is dismissed.

The Métis Settlements Act of Alberta, Chapter M-14 (MSA) provides for limitations on settlement membership, including an automatic termination provision under which membership automatically terminates if a person voluntarily registers as an Indian under the Indian Act. The Applicants are three former members of the Gift Lake Métis Settlement, whose memberships were terminated after each voluntarily registered as an Indian under the Indian Act to access health benefits. They asked for a declaration that certain membership sections of the MSA, are, in pith and substance, laws in relation to “Indians or Lands reserved for the Indians” and therefore outside provincial legislative competence, under section 91(24) of the Constitution Act, 1867.

The doctrine of interjurisdictional immunity does not apply to the impugned membership provisions of the MSA as their pith and substance can be related to a matter that falls within the jurisdiction of the Alberta legislature. Further, the impact of these provisions does not impair the core power of the federal government under s. 91(24). Also, there is no principled basis on which the doctrine of interjurisdictional immunity would have applied only to the impugned sections. Because the membership provisions are integral to the operation and purpose of the legislation, had the doctrine applied, it would have applied to the whole MSA, rendering the MSA entirely inapplicable to Alberta’s Métis population. Consequently, this group would have lost the benefits and protections the MSA affords them. Additionally, it would have would have created a legislative vacuum, as there is no corresponding federal legislation that would fill the void.

Unlike Indians, with whom the Federal Crown made treaties and granted reservations and other benefits, the Métis communities were not given a collective reservation or land base. They also did not enjoy the protection of the Indian Act, or any equivalent. Under the Accord, the Alberta government granted the Métis Settlements General Council fee simple title to the lands now occupied by eight Métis communities and passed legislation, including the MSA to protect Métis rights.

The MSA contains membership eligibility and termination provisions. An Indian registered under the Indian Act is not eligible to apply for membership in the Métis community except in limited circumstances, none of which apply in this case. Further, s. 90(1)(a) provides that if a person voluntarily becomes registered as an Indian under the Indian Act, that person’s Métis settlement membership terminates. There has been an amendment to the MSA in 2004, making the automatic termination provisions of s. 90 subject to a Métis Settlements General Council Policy that “provides otherwise”. However, there has been no alternative provision policy made so far that would alter the automatic termination provisions. As well, at this time, there is no way for the Applicants to withdraw their registration under the Indian Act.

The MSA recognizes and promotes the preservation of the distinct Métis culture and identity apart from other Aboriginal groups. The impugned provisions are necessary to achieve this objective. These sections only act to exclude specific individuals from membership in settlements and its benefits that are established under the MSA. The settlements under the MSA are creatures of provincial statute and were created and operate independently of Parliament’s jurisdiction over Indians under s 91(24). The fact that Métis are now recognized as Indians under s 91(24) does not change this. Membership in these settlements is not determinative of whether or not an individual is Métis and one can still be legally considered Métis under the test developed in R v Powley.

Corporation de développement économique Montagnaise c Robertson, 2017 QCCS 2736

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A clear and unequivocal express waiver is necessary in order to waive the protection against seizure of property on reserve under section 89 of the Indian Act.

The issue in this case was whether the property of Mr. Édouard Robertson, who lives on the Mashteuiatsh territory reserve and has status under the Indian Act, could be seized by an Indigenous economic development corporation (Corporation de développement économique Montagnaise or “CDEM”) in spite of section 89 of the Indian Act. In three separate judgments, Mr. Robertson was found to owe CDEM more than $265,000 with interest and costs. He argued that because he has status under the Indian Act, his property cannot be seized by any person other than an Indian or band under the Indian Act. CDEM’s position was that by consenting to a universal movable hypothec on his business property (a form of security similar to a mortgage), Mr. Robertson waived the benefit of his rights under section 89 of the Indian Act.

Justice Bouchard found that the hypothec did not constitute a waiver of Mr. Robertson’s right to protection against seizure under section 89 of the Indian Act. As a result, the property located on the reserve could not be subject to seizure. In reviewing the case law to date, Justice Bouchard, cited a 1995 Sioui decision for the proposition that “tacit” waivers will not suffice in terms of section 89’s protection against seizure. Justice Bouchard did point out that express waivers were possible and section 89 should not be read more broadly than is necessary, particular in cases involving credit matters, as set out by the Supreme Court of Canada in McDiarmid Lumber Ltd v God’s Lake First Nation. Ultimately, however, Justice Bouchard concluded that in the absence of a clear and unequivocal waiver by Mr. Robertson, there could be no seizure. The language in the universal hypothec was not sufficiently clear to constitute a clear waiver and Mr. Robertson’s property could therefore not be seized.

Case Watch for November 2016

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FROM OUR PUBLICATIONS DESK

Case Watch

The following decisions came across our desk over the past month:

Equality rights of Métis children & families in child protection –

Catholic Children’s Aid Society of Hamilton v GH, 2016 ONSC 6287: The Ontario Superior Court of Justice released a decision in a Crown wardship application where it was found that the definitions of “Indian”, “Native person”, and “Native child” in Ontario’s Child and Family Services Act were invalid on the basis that they unjustifiably infringe s 15 of the Charter. The Court found that the impugned definitions do not extend to all individuals who self-identify as being Aboriginal. In fact, all parties conceded that they do not extend to Métis children. The Court also found that the Act afforded significant special protections for individuals falling into these definitions at every stage of a child protection intervention. The Court recognized that all Aboriginal peoples, including Métis, have been subject to a legacy of prejudice, stereotyping, and disadvantage. With this context in mind, the Court determined that the definitions created distinctions based on the analogous ground of “Aboriginality without membership in a community designated as “Native” under the [Act]”. It also concluded that these distinctions created or perpetuated disadvantage for Métis children and their families due to their inability to access the special protections under the Act. In conducting this analysis, the Court noted that the Act clearly created these unfair and objectionable disadvantages on its face and this could be discerned through logical reasoning alone. There was no need for social science evidence and empirical data. As no s 1 argument was advanced, the infringement was not saved. A suspended declaration of invalidity was issued and it was ordered that the Métis child in this case be treated as if he were an Indian, Native person or Native child within the meaning of the Act.

Inadequate investigation of vote-buying allegations by INAC –

Good v Canada (Attorney General), 2016 FC 1272: The Federal Court released a decision allowing in part an application for judicial review of INAC’s dismissal of an election appeal under the Indian Act. The applicant first unsuccessfully sought to appeal the March 2014 election of the Red Pheasant First Nation through INAC based on allegations of misconduct by the electoral officer and corruption in the form of vote-buying. She then sought judicial review of INAC’s rejection of that appeal. However, a subsequent election had since taken place in March 2016. The Court found that INAC’s delegate erred by choosing to dispense with any investigation of the applicant’s vote-buying allegations and proceeding to dismiss the appeal on the basis that corruption had not been proven on a balance of probabilities. The Court noted that this approach appears to have become settled practice within INAC’s Elections Unit. While the Court was sympathetic to INAC’s desire to streamline its management of appeals, it had significantly changed the very nature of the appeals process in a manner tantamount to attempting to amend the law via internal policy. The Court took no issue with how the delegate addressed the issue of electoral officer misconduct, but found that the delegate’s refusal to investigate conflicting evidence on vote-buying was unreasonable, based upon an error of law and procedurally unfair. While these issues were moot due to the subsequent election, the Court exercised its discretion to deal with the central controversy between the parties as roughly 40% of First Nations hold elections under the regime at issue in this case.

Relevance of Aboriginal equity stake to remedy in consultation case –

Michipicoten First Nation v Ontario (Minister of Natural Resources and Forests), 2016 ONSC 6899: The Ontario Superior Court of Justice dismissed an application for judicial review of provincial approvals for the Bow Lake Wind Farm Project on the shared traditional territory of the Michipicoten and Batchewana First Nations in northeastern Ontario. Michipicoten argued that the Crown breached its duty to consult and sought to quash the approvals, preclude further approvals until more consultation takes place, and have the court remain seized of remedies or order removal of the infrastructure, remediation of the lands, and costs. The Court noted that Michipicoten had inexplicably delayed several months in pursuing and perfecting its application for judicial review, which caused the proponent and Batchewana, which has a 50% interest in the project, serious harm. For this reason, the Court dismissed the application on its own motion. In the alternative, the Court went on to conclude that consultation was adequate as Michipicoten failed to provide any evidence of potential adverse impacts on its Aboriginal or treaty rights in spite of many requests to do so. Furthermore, the Court concluded that the remedy sought in terms of decommissioning the project was inappropriate. Michipicoten argued that a proponent’s commercial interests may not come into play in determining the balance of convenience in a consultation dispute between the Crown and an Aboriginal community. However, the Court found this principle inapplicable in this case since Batchewana would face irreparable harm if the relief sought was granted.

Validity of a Will under the Indian Act not providing for spouse –

Poitras v Khan, 2016 SKQB 346: The Saskatchewan Court of Queen’s Bench allowed an application for letters probate under a Will created pursuant the Indian Act. The testator met the man who became her husband and married him after she had already made her Will. Under provincial legislation, the testator’s spousal relationship would have automatically revoked her Will. However, the testator was a status Indian living on reserve and there was no such provision under the Indian Act to invalidate her Will automatically. Under the Indian Act, the Minister had the power to declare the Will void if it imposed hardship on persons to whom the testator had responsibility or was contrary to the interests of the band or the public. In this case, the Minister had referred the matter to the Court, conferring its power to declare the Will void on the Court. The testator’s husband, Mr. Khan, sought to invoke this power on the basis that he was not provided for in the Will. The Court confirmed the validity of the Will, but also noted that Mr. Khan could still potentially seek a claim for one half of the testator’s family property accrued from the date of marriage until death under provincial legislation.

Canadian Human Rights Tribunal’s jurisdictional limits re: Indian Act –

Beattie v Canada (Attorney General), 2016 FC 1328: The Federal Court dismissed an application for judicial review of a decision of the Canadian Human Rights Tribunal where a complaint was dismissed as being solely a challenge to legislation beyond the Tribunal’s jurisdiction. The applicant, Mr. Beattie, sought to register two leases and an assignment of lease in the Indian Lands Registry. The Registrar rejected the applications on the basis that the leases did not include the Crown as a party and no ministerial approval had been provided. Since the leases could not be registered, the assignment could not be registered either. As a result of this decision, the applicants brought a complaint to the Tribunal alleging that the respondent had discriminated against them on the basis of their race, national or ethnic origin by denying a service customarily available to the public. The Tribunal dismissed the complaints on the basis that they were beyond its jurisdiction since they were challenging the Indian Act itself, which obliged the Registrar to reject the leases and assignment. The Court was satisfied that the Tribunal’s decision was reasonable and it was reasonable to rely on other Federal Court and Tribunal decisions where such challenges to legislation were dismissed as beyond the Tribunal’s jurisdiction. The Court also rejected the applicants’ assertion that title to the reserve lands at issue in this dispute were vested in an individual pursuant to either a Certificate of Possession or customary tenure.

Court’s duty to explicitly consider & inquire into Gladue factors –

R v Park, 2016 MBCA 107: The Manitoba Court of Appeal allowed an appeal from sentence for impaired driving and drug possession due in part to the sentencing judge’s failure to adequately consider Gladue factors. It was conceded that defence counsel during the sentencing hearing did not address Gladue factors other than to note that the accused was Aboriginal. No Gladue report was ordered. The Crown argued that defence counsel expressly waived the Gladue rights of the accused whereas counsel for the accused on appeal argued that the Court had a duty to make further inquiry when no advocacy was provided on Gladue factors during sentencing. The Court of Appeal found there was no express waiver in this case. Defence counsel at sentencing acknowledged there were Gladue factors but focused on other arguments. A waiver must be express and clear. Both defence and Crown counsel have an obligation to bring forward Gladue information. Where that does not happen, the Court may need to go further and has a duty to at least make further inquiries. The Court must also make explicit its consideration of Gladue factors and its determination that it has adequate information on those factors before it. It is unsatisfactory for both the offender and the public to have to infer such circumstances were properly considered. The sentencing judge failed to expressly confirm that Gladue factors were considered and failed to clarify defence’s reliance on Gladue, which in turn had an impact on the sentence. The sentence was varied.

No need for ‘linkage’ between Gladue factors & offence –

R v Predham, 2016 ABCA 371: The Alberta Court of Appeal allowed an appeal from sentence with respect to convictions for driving while disqualified, breach of recognizance, failure to appear and possession of a stolen licence plate. The appellant argued that the sentencing judge erred in failing to give appropriate weight to his Gladue factors, among other things. In particular, the appellant took issue with the sentencing judge’s reasons where it was suggested that Gladue factors were less relevant to the offence of driving while disqualified in the absence of alcohol, drugs or violence. The sentencing judge stated that there must be “some relationship between the Gladue factors and the offending in order for there to be that sort of linkage”. The Court of Appeal held that it was an error of law to require a linkage between Gladue factors and the offending conduct. The Court stated that it is also an error to carve out a certain category of offences as being immune from the Gladue analysis. The Court was also satisfied that the sentencing judge’s error influenced his ultimate decision. The sentence was varied.

Injunction against Cleveland baseball team’s name & logo denied –

Cardinal v Major League Baseball, 2016 ONSC 6929: The Ontario Superior Court issued its reasons for dismissing an urgent interim injunction application to restrain the Cleveland baseball team, Rogers Communications, and Major League Baseball (MLB) from displaying the team’s name or logo during a game in Toronto and while the underlying federal and provincial human rights complaints proceed. In the underlying complaints, the applicant, Douglas J. Cardinal, is alleging that the use of the team’s name and logo constitutes prohibited discrimination and harassment against him on the grounds of race, ancestry, colour, ethnic and national origins, and constitutes a publication or display intended to incite infringement of the Ontario Human Rights Code. The Court held that it had jurisdiction over the application, rejecting MLB’s argument that it ought to allow the United States Supreme Court to determine the underlying issues in this case based on principles of comity. The Court was also satisfied that the parties raised serious issues to be tried in terms of whether a service had been offered and whether the team’s name and/or logo offend the provisions of federal and Ontario human rights legislation, as well as the relevance of MLB’s freedom of expression to the dispute. However, the Court did not accept the applicant’s assertion that he would sustain irreparable harm if an injunction was not granted, noting that damages were available and disputes over use of the impugned name and logo have been ongoing for years. The Court noted that the applicant sought a change to the status quo and his last minute application, if granted, would materially prejudice the respondents. The issue of delay went to both the question or irreparable harm and the balance of convenience.

Settlement approved in Newfoundland & Labrador school claims –

Anderson v Canada (Attorney General), 2016 NLTD(G) 179: The Newfoundland and Labrador Supreme Court approved the terms of a $50 million settlement in a class action brought by Aboriginal individuals who attended schools, dormitories or orphanages in the province between 1949 and 1980. The plaintiffs claimed that Canada breached a fiduciary duty to the students who attended these facilities to protect them from actionable physical or mental harm. The Court was satisfied that the settlement was fair, reasonable, made in good faith, and in the best interests of the class as a whole. It was also satisfied that the fees and disbursements of the plaintiffs’ counsel were fair and reasonable. The settlement includes both General Compensation Payments for years that students resided at the facilities at issue, and Abuse Compensation Payments that depend on the harm individual students suffered. The settlement provides for a confidential paper-based claims process and Canada is committed to funding mutually agreeable commemoration and healing initiatives over and above its compensation funding.

Tax Court’s exclusive jurisdiction over tax assessment challenges –

Horseman v Canada, 2016 FCA 252: The Federal Court of Appeal dismissed an appeal from a decision to strike the appellant’s claims as falling under the exclusive jurisdiction of the Tax Court of Canada. The appellant received a Notice of Assessment and Requirement to Pay $59,000.06 of outstanding GST. He initiated this Federal Court action for a declaration that the Requirement to Pay is null and void and contrary to the Indian Act, Treaty No. 8, and s 35 of the Constitution Act, 1982. The Court found that this challenge was properly characterized as an indirect challenge to a tax assessment, making it plain and obvious that the Tax Court had exclusive jurisdiction. The Tax Court has jurisdiction to consider the constitutional validity, applicability or operability of federal legislation and regulations and can issue remedies if a notice of constitutional question is properly served. It is also well-established that the Tax Court can determine claims under s 87 of the Indian Act over the applicability of tax requirements, or involving tax exemption claims under Treaty No. 8. Such assertions are properly tested in the Tax Court.

Provincial human rights tribunal’s jurisdictional limits re band store –

Dinsmore v Slenyah Store, 2016 BCHRT 176: The British Columbia Human Rights Tribunal dismissed a human rights complaint alleging discrimination in the area of employment on the basis of colour or race with respect to a business in Fraser Lake, British Columbia known as the Slenyah Store. The business was operated by the Stellat’en First Nation up until April 2014. The majority of its customers are status Indians who are able to purchase gas and cigarettes at tax exempt rates there. In 2013, the store was in serious financial difficulty. It was kept afloat via overdraft protection from Stellat’en and Stellat’en paid the store’s back taxes to get it out of its financial difficulties. In 2014, the store was incorporated to be operated at arm’s length through a limited partnership. As a result of these changes, all the store’s employees were laid off by Stellat’en and encouraged to reapply for positions with the limited partnership that would operate the store going forward. The Tribunal found that while the store was operated by Stellat’en it was an integral part of the First Nation’s overall governance and operations. Its purpose was to permit members to avail themselves of their tax-free status, it was financially integrated with the First Nation, its employees were employees of the First Nation, and its operations were continuously concerned with the status, rights and privileges of Stellat’en’s members. As a result, the store fell under federal jurisdiction and outside the Tribunal’s jurisdiction while it was operated by Stellat’en. While operated at arm’s length through a limited partnership, however, the store was a provincial undertaking subject to the Tribunal’s jurisdiction. The Tribunal went on to dismiss the complaint against both entities on the ground that it had no reasonable prospect of success if it were to proceed on its merits.

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This Case Watch blog post has been brought to you by the Native Law Centre in partnership with Pro Bono Students Canada – University of Saskatchewan