Tag Archives: Indigenous law

Iskatewizaagegan No 39 Independent First Nation v Winnipeg (City), 2021 ONSC 1209

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Ontario’s motion is dismissed. Ontario moved for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim claiming that it is plain and obvious that Iskatewizaagegan pleading disclosed no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. The Court finds that it is not plain and obvious that Iskatewizaagegan does not have a tenable cause of action based on a sui generis fiduciary duty or an ad hoc fiduciary duty.

Indigenous Law Centre CaseWatch Blog

The City of Winnipeg, Manitoba [“Winnipeg”] extracts its drinking water from Shoal Lake, which is located predominantly in Ontario, but also Manitoba. Shoal Lake has been extracted for this purpose for over 100 years but has not paid anything to the Plaintiff, the Iskatewizaagegan No. 39 Independent First Nation [“Iskatewizaagegan”]. Winnipeg is being sued by Iskatewizaagegan for compensation for injurious affection, with damages claimed at $500 million. Iskatewizaagegan also sues the Province of Ontario, for breach of fiduciary duty.

Iskatewizaagegan pleads two distinct theories of Crown liability for breach of fiduciary duty: 1) a sui generis fiduciary duty based on the relationship between Aboriginal peoples and the Crown; and 2) an ad hoc fiduciary duty. It relies on a 1913 Order in Council along with antecedent Royal Proclamations and Treaties and sequent legislation enacted by Ontario.

In this matter, Ontario moves for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim without leave to amend and to dismiss the action for failing to disclose a reasonable cause of action. Ontario states that it is plain and obvious that Iskatewizaagegan pleading discloses no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. Ontario’s action is dismissed.

The people of Iskatewizaagegan are Anishinaabe. They are a distinct Aboriginal society, a recognized Band under the Indian Act, and an Aboriginal people within the meaning of s 35 of the Constitution Act, 1982. Shoal Lake is a part of the cultural identity of Iskatewizaagegan and its people. Since time immemorial, the Anishinaabe have used the waters of Shoal Lake and the surrounding land for survival. Iskatewizaagegan’s culture is coextensive with Shoal Lake and the surrounding land. The transmission of Anishinaabe teachings, traditions, and values to future generations takes place and continues to take place at Shoal Lake.

Common law real property concepts do not apply to Aboriginal lands or to reserves. Aboriginal title and interest in reserves are communal sui generis interests in land that are rights of use and occupation that are distinct from common law proprietary interests. An Aboriginal interest in land will generally have an important cultural component that reflects the relationship between an Aboriginal community and the land. The Aboriginal interest in land is a sui generis independent beneficial legal ownership interest that burdens the Crown’s underlying title, which is not a beneficial ownership interest and which may rather give rise to a fiduciary duty on the part of the Crown.

Iskatewizaagegan is a beneficiary of the Royal Proclamation of 1763, and was ratified by assembled Indigenous Nations by the Treaty of Niagara 1764. In the summer of 1764, representatives of the Crown and approximately 24 First Nations, met at Niagara. The lengthy discussions lead to the Treaty of Niagara 1764, which was recorded in wampum. The Crown does not recognize the Treaty of Niagara 1764 as substantively altering the legal effects of the Royal Proclamation of 1763. In contrast, First Nations assert that the Royal Proclamation of 1763 must be understood together with the Treaty of Niagara 1764 and so understood the Royal Proclamation of 1763 constitutes a recognition of Indigenous sovereignty.

In 1873, Iskatewizaagegan entered into Treaty No 3 with the Crown. The reserve of Iskatewizaagegan No. 39 adjacent to Shoal Lake was established pursuant to Treaty No 3. Treaty No 3 is a pre-confederation treaty on behalf of the Dominion of Canada and Chiefs of the Ojibway. The Ojibway yielded ownership of their territory, except for certain lands reserved to them. In return, the Ojibway received annuity payments, goods, and the right to harvest the non-reserve lands surrendered by them until such time as they were taken up for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada. Although Treaty No 3 was negotiated with the Crown in right of Canada, the promises made in Treaty No 3 are promises of the Crown. The federal Government and Ontario are responsible for fulfilling the promises of Treaty No 3 when acting within the division of powers under the Constitution Act, 1867.

In exercising its jurisdiction over Treaty No 3 lands, Ontario is bound by the duties attendant on the Crown and it must exercise its powers in conformity with the honour of the Crown and the fiduciary duties that lie on the Crown in dealing with Aboriginal interests. The honour of the Crown has been a principle animating Crown conduct since at least the Royal Proclamation of 1763, through which the British asserted sovereignty over what is now Canada and assumed de facto control over land and resources previously in the control of Aboriginal peoples. The categorical fiduciary duty owed by the Crown in the Aboriginal context is sui generis. From the honour of the Crown and the Federal Government’s exclusive jurisdiction in respect of Indians under s 91(24) of the Constitution Act, 1867, the Crown has the responsibility to act in a fiduciary capacity with respect to Aboriginal peoples.

Big River First Nation v Agency of Chiefs Tribal Council Inc, 2020 SKQB 273

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The Court allowed the First Nation’s application for an oppression remedy against the incorporated Tribal Council in relation to the First Nation’s notice of an intention to resign membership in the Tribal Council in the future. Among other things, the Court considered a Convention Act enacted by the member First Nations to govern their relationship, which was grounded in traditional Cree values and customs. Likewise, Cree principles of respect, cooperation, consensus, and equal representation informed the First Nation’s reasonable expectations.

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Big River First Nation [“BRFN”], brought this application pursuant to the oppression remedy provided under The Non-profit Corporations Act [“NPCA”] for what it alleges is the oppressive conduct of the respondent, Agency Chiefs Tribal Council Inc. [“ACTC”]. ACTC is a non-profit membership corporation under the NPCA, and was created to conduct business and deliver programs to members of the corporation. BRFN, Pelican Lake First Nation and Witchekan Lake First Nation [“Member Nations”] formed a new tribal council in 1991 called the Agency Chiefs Tribal Council [“Tribal Council”]. The Tribal Council was constituted to promote cooperation among the Member Nations and to develop capacity for self-determination.

In 1991, representatives from the Member Nations signed the Agency Chiefs’ Tribal Council Convention Act [“Convention Act”] which contains a number of provisions purporting to govern the relationship between the Member Nations. It is grounded in traditional Cree values and customs and represents the setting down of some of the signatory First Nations’ customs in written form. In 2019, BRFN decided it would take steps to resign from the Tribal Council in order to have exclusive control over its funding, businesses and community services.

The Cree custom or law upon which the Convention Act is derived must inform the Court’s interpretation of the NPCA, as well as the parties’ reasonable expectations relevant to this application. Courts have recognized the existence of a rule of Indigenous law when it is shown that it reflects the broad consensus of the membership of a First Nation (Whalen v Fort McMurray No 468 First Nation, [2019] 4 FCR 217 (FC)). It is uncontroverted that the Convention Act is based in traditional Cree custom and that members of the Member Nations collectively developed and drafted the document. 

ACTC takes the position that BRFN’s resignation from ACTC was effective on the date it received notice of a first resignation in the form of a BRFN Band Council Resolution, as two resignations similar in wording were sent, one before and one after a BRFN Chief and Council election. It is ACTC’s view that BRFN is not entitled to make its resignation from membership in ACTC subject to conditions. Consequently, ACTC has filed a Notice of Change of Directors with Information Services Corporation, and removed BRFN’s two representatives from ACTC’s board of directors.

Section 5 of the Convention Act provides that before a Member Nations can withdraw from the Tribal Council, the Member Nations must hold a referendum on withdrawal and receive approval from the membership of the Member Nations, after which the Member Nations may pass a band council resolution. The withdrawal of membership from the Tribal Council is therefore conditional upon the majority support of the Member Nations’ community. BRFN is entitled to make its resignation from ACTC conditional and effective when conditions are met. This is clear because a resignation can be effective at a date in the future specified by the party tendering the resignation (Morin v Saskatchewan (Métis Nation Legislative Assembly), 2020 SKQB 63).

It is the Court’s determination that BRFN did not resign its membership in ACTC when it issued either of its resignations as BRFN’s resignation is properly subject to conditions and its resignation is not effective until those conditions are met. ACTC engaged in oppressive conduct when it treated BRFN’s notice that it would resign its membership in the future as an immediate resignation. It also engaged in oppressive conduct when it unilaterally removed BRFN’s directors from its board. BRFN had not intended to give up its portion of control of ACTC until it had appropriate measures in place to protect funding for its members, businesses and community services. Among other relief, ACTC shall amend its corporate records to restore BRFN’s membership in the corporation and shall replace two of its current directors with named BRFN directors. This will put BRFN in a fair position to negotiate the consequences of its future resignation from ACTC.

Trans Mountain Pipeline ULC v Mivasair, 2019 BCSC 1512

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Three Indigenous men were each sentenced to 28 days in prison for criminal contempt after breaching an injunction prohibiting interference with Trans Mountain Pipeline operations. While Gladue factors were relevant, deterrence and denunciation needed to be given primary consideration. They could not invoke Indigenous law at the sentencing stage when they failed to challenge the injunction’s validity.

Indigenous Law Centre CaseWatch Blog

Stacy Gallagher, Justin Bige and James Leyden [“Contemnors”] are to be sentenced in this matter for breaching an order [“Injunction”] (Trans Mountain Pipeline ULC v Mivasair, 2019 BCSC 2472 [the “Conviction Reasons”]). The Injunction prohibited interference with the operations of the plaintiff, Trans Mountain Pipeline ULC [“Trans Mountain”]. In 2018, this Court granted the Injunction to address protest activity against Trans Mountain and its pipeline expansion project. In broad terms, the Injunction prohibited obstruction of access to and from various Trans Mountain work sites.

Trans Mountain’s project attracted considerable controversy at the time, which continues today. Protests and arrests of protestors began almost immediately after the granting of the Injunction. The police arrested in excess of 200 people for breaching the Injunction.

The Court’s main focus in this sentencing process is to send a clear signal to the Contemnors, and others who may be influenced by them and their actions, that such behavior will not be tolerated. Deterrence is the main sentencing objective. Although contempt of court is a common law offence, and therefore prosecuted under the common law, courts have frequently stated that guidance in respect of sentencing for criminal contempt may be sought from the Criminal Code (International Forest Products Ltd v Kern, 2001 BCCA 48; R v Dhillon, 2015 BCSC 1298; Trans Mountain Pipeline ULC v Mivasair, 2019 BCCA 156).

There is a need for the Court to restore, maintain and preserve the rule of law and the administration of justice by punishing those people who would choose to threaten its existence by taking matters into their own hands and in doing so, encourage others to do the same. It could not be reasonably assumed that “public defiance of lawful orders of the court would continue indefinitely to be visited with only nominal fines and non-custodial sentences” (MacMillan Bloedel Ltd v Brown (1994), 88 CCC (3d) 148 (BCCA)).

All of the Contemnors are Aboriginal through their mothers lineage. Their home Indigenous territories are not in BC or even in the local area, being the traditional territories of the Coast Salish peoples. None of these men have criminal records. Section 718.2(e) of the Code mandates that the Contemnors’ Aboriginal heritage be considered in determining a fit sentence in the circumstances, including the Gladue principles (R v Gladue, [1999] 1 SCR 688; R v Ipeelee, 2012 SCC 13). The fact that an offender is Aboriginal, however, does not dictate that a restorative approach is appropriate toward rehabilitation (R v Wells, 2000 SCC 10 [“Wells”]). Unlike the facts in Wells, of course the convictions here did not arise from any violent offence. The offences here were, however, serious, consistent with the need for this Court to denounce and deter such behavior, both generally and specifically.

The Contemnors repeatedly submitted that they never meant any disrespect for the Court through their actions. However, such words are meaningless when juxtaposed against their actual actions. This Court has already found that the Contemnors, knowing what the Injunction required them not to do, purposefully did just that. Their actions belie any real sense of respect for the Court’s authority. The true substance of the Contemnors’ position in relation to their Aboriginal heritage is founded on their view that they were entitled to disobey the Court’s order because of their heritage and what they perceive as being their obligations to their own Indigenous rule of law. In essence, such an argument is a backdoor collateral attack on the validity of the order and this Court’s jurisdiction to enforce its order in the sentencing process (British Columbia (AG) v Mount Currie Indian Band, [1991] BCJ No 616 (SC); R v Ignace, [1998] BCJ No 243 (CA)).

The Contemnors’ Aboriginal heritage, background and circumstances, while relevant, do not move the needle in terms of the Court’s need to give primacy to the sentencing principles of denunciation and deterrence in this case. Each of them were well aware of what they were doing at the time. The Contemnors knew that they were going to be arrested if they violated the Injunction.

 

R v Turtle, 2020 ONCJ 429

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

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

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

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

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

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

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

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

Kennedy v Carry the Kettle First Nation, 2020 SKCA 32

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Appeal allowed of a judicial review that quashed a customary decision to remove opposing members on a First Nation’s election code tribunal. The Federal Court of Canada had exclusive original jurisdiction pursuant to s 18 of the Federal Courts Act to hear and determine that application. 

Indigenous Law Centre – CaseWatch BlogThe Appellants are members of the Cega-Kin Nakoda Oyate Tribunal [“Tribunal”], an election tribunal established by the Cega-Kin Nakoda Oyate Custom Election Act [“Code”]. They, like the Respondents, [“opposing members”], were appointed as Tribunal members by the Chief and Council of the respondent, Carry the Kettle First Nation [“CKFN”]. The Code provides that the Tribunal shall have five members.

In 2019, the Appellants purported to make orders of the Tribunal [“Orders”] at certain meetings. The only attendees at those meetings were the Appellants, as the opposing members refused to attend, and never approved the Orders. Subsequently a resolution was passed at a joint meeting of the Appellants and a group of Elders [“Elders’ resolution”]. The Elders’ resolution established rules for the removal of Tribunal members and removed the opposing members from the Tribunal. The CKFN applied to the Court of Queen’s Bench for judicial review, challenging the validity of the Orders and the Elders’ resolution [“Application”]. The Chambers judge who heard that judicial review quashed the Orders and the Elder’s resolution. In this matter the Appellants appeal that decision to this Court. It has been determined that this appeal must be allowed, as the Federal Court of Canada had exclusive jurisdiction to hear the judicial review application.

After s 74 of the Indian Act order was rescinded in 2018 for the CKFN, their Code came into effect. The definition of “council of the band” in s 2(1) of the Indian Act provides that when a band is not subject to a s 74 order, and is not named or formerly named in the schedule to the First Nations Elections Act, “council of the band” means “the council chosen according to the custom of the band, or, if there is no council, the chief of the band chosen according to the custom of the band”.

None of the parties takes issue with the proposition that the Code constitutes “custom of the band” within the meaning of s 2, although they differ as to what constitutes custom. It is clear that a recently adopted election code may be custom for this purpose, despite that the authority to enact such a custom election code is not granted by the Indian Act or other federal legislation (Pastion v Dene Tha’ First Nation, [2019] 1 CNLR 343 [“Pastion”]). The custom of the band is not limited, and indeed may bear little resemblance, to historic customs, practices or traditions that existed prior to the Crown’s assertion of sovereignty. What the Indian Act describes as ‘custom’ is often the written product of public deliberation within a First Nation and it may rely on the mechanisms of Western democracy, or provide for a mechanism that blends Western democracy and Indigenous tradition (Pastion). The Code is such a document regardless of whether, as Pastion suggests, it might be more apt to describe it as “Indigenous legislation” or “Indigenous law”. The Code is effective for purposes of the Indian Act regardless of whether that is so.

The Code does not contain provisions which deal expressly with the issues of removal or replacement of Tribunal members. The Appellants resolved to hold a joint meeting with the Nation Elders to deal with those issues. That meeting [“Elders’ Meeting”], attended by the Appellants, and 26 Elders, unanimously supported the Elders’ resolution, which established criteria and a process for removing and replacing Tribunal members. This Elders’ resolution also provided that the three opposing members were “removed as Tribunal members effective immediately”.

In this matter, the Appellants submitted that both the Tribunal and the Elders’ Meeting were federal boards, commissions or tribunals [“Federal entity”] within the meaning of s 18 of the Federal Courts Act [“FCA”]. The Chambers judge did not deal with the question of whether the Tribunal and the Elders’ Meeting were Federal entities. On an appeal from a judicial review, the task of an appeal court is normally to determine whether the Chambers judge selected the correct standard of review and correctly applied that standard (Kawula v Institute of Chartered Accountants of Saskatchewan, 2017 SKCA 70; Dr Q v College of Physicians & Surgeons of British Columbia, 2003 SCC 19). It is concluded that this appeal should be disposed of on the basis of the jurisdictional question, which raises two issues: 1) did the learned Chambers judge err by deciding that the Court of Queen’s Bench had jurisdiction to hear the Application pursuant to s 22 of the Code; and 2) did the Chambers judge err by failing to decide that the Federal Court had exclusive original jurisdiction to hear the Application pursuant to s 18 of the FCA?

In this case, the conditions necessary to engage the right to apply pursuant to s 22 have not been met because the Application was filed by the CKFN. That, in itself, is enough to determine the issue. The Tribunal has not yet made a final decision as to the results of the election, therefore the CKFN could not bring the Application in the Court of Queen’s Bench pursuant to s 22 of the Code, and the Chambers judge did not have jurisdiction to hear the Application pursuant to that section.

The same reasoning applies to the Elders’ Meeting. The question is not whether those recognized as Elders by the Nation are a Federal entity whenever they play a role in the CKFN’s affairs. The question is whether the Elders’ Meeting had the authority to pass the Elders’ resolution. If the Elders’ Meeting had the authority it exercised or purported to exercise, it was because that authority was the custom of the band, and like the authority of the Tribunal, was made effective in this context. The Tribunal and the Elders’ Meeting were both Federal entities within the meaning of s 18 of the FCA. The Chambers judge erred by failing to decide that the Federal Court had exclusive original jurisdiction to hear the Application pursuant to s 18 of the FCA.

Coastal GasLink Pipeline Ltd v Huson, 2019 BCSC 2264

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Interlocutory injunction and enforcement order granted. The defendants are restrained from preventing access to key service roads used by the plaintiff, Coastal GasLink Pipeline Ltd.

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The plaintiff, Coastal GasLink Pipeline Ltd, is a wholly-owned subsidiary of TC Energy Corporation (formerly known as TransCanada Pipelines Ltd). The plaintiff obtained all of the necessary provincial permits and authorizations to commence construction of a natural gas pipeline [the “Pipeline Project”]. Over a period of several years beginning in 2012, the defendants set up the Bridge Blockade on the Morice West Forest Service Road [“FSR”]. The defendants have said publicly that one of the main purposes of the Bridge Blockade was to prevent industrial projects, including the Pipeline Project, from being constructed in Unist’ot’en traditional territories. In 2018, the Court granted an interim injunction enjoining the defendants from blockading the FSR. Blockading persisted, however, at another access point along the road, which resulted in the Court varying the interim injunction order to include all of the FSR.

The Pipeline Project is a major undertaking, which the plaintiff contends will generate benefits for contractors and employees of the plaintiff, First Nations along the pipeline route, local communities, and the Province of British Columbia. The defendants assert that the Wet’suwet’en people, as represented by their traditional governance structures, have not given permission to the plaintiff to enter their traditional unceded territories. The defendants assert that they were at all times acting in accordance with Wet’suwet’en law and with proper authority. The Wet’suwet’en people have both hereditary and Indian Act band council governance systems and there is dispute over the extent of their respective jurisdictions.

The Environmental Assessment Office issued to the plaintiff a Section 11 Order that identified the Aboriginal groups with whom the plaintiff and the Province of British Columbia were required to consult regarding the Pipeline Project. The plaintiff engaged in consultation with the Wet’suwet’en hereditary chiefs through the Office of the Wet’suwet’en over a number of years. The Office of the Wet’suwet’en expressed opposition to the project on behalf of 12 of the 13 Wet’suwet’en Houses. Offers by the plaintiff to negotiate agreements with the Office of the Wet’suwet’en have not been accepted.

The plaintiff has entered into community and benefit agreements with all five Wet’suwet’en elected Bands. The long-term financial benefits to those, and 20 other Indigenous Bands, may exceed $338 million cumulatively over the life of the Pipeline Project. The elected Band councils assert that the reluctance of the Office of the Wet’suwet’en to enter into project agreements placed responsibility on the Band councils to negotiate agreements to ensure that the Wet’suwet’en people as a whole would receive benefits from Pipeline Project. This appears to have resulted in considerable tension between the Office of the Wet’suwet’en and the elected Band councils.

The Court found that the reconciliation of the common law with Indigenous legal perspectives is still in its infancy (Beaver v Hill, 2018 ONCA 816 [“Beaver”]). Indigenous customary laws generally do not become an effectual part of Canadian common law until there is some means or process by which they are recognized. This can be through its incorporation into treaties, court declarations, such as Aboriginal title or rights jurisprudence, or statutory provisions (Alderville First Nation v Canada, 2014 FC 747). There has been no process by which Wet’suwet’en customary laws have been recognized in this manner. The Aboriginal title claims of the Wet’suwet’en people have yet to be resolved either by negotiation or litigation. While Wet’suwet’en customary laws clearly exist on their own independent footing, they are not recognized as being an effectual part of Canadian law. Indigenous laws may, however, be admissible as fact evidence of the Indigenous legal perspective. It is for this purpose that evidence of Wet’suwet’en customary laws has been considered relevant in this case.

There is significant conflict amongst members of the Wet’suwet’en nation regarding construction of the Pipeline Project. The Unist’ot’en, the Wet’suwet’en Matrilineal Coalition, the Gidumt’en, the Sovereign Likhts’amisyu and the Tsayu Land Defenders all appear to operate outside the traditional governance structures of the Wet’suwet’en, although they each assert through various means their own authority to apply and enforce Indigenous laws and customs. It is difficult for the Court to reach any conclusions about the Indigenous legal perspective. Based on the evidence, the defendants are posing significant constitutional questions and asking this Court to decide those issues in the context of the injunction application with little or no factual matrix. This is not the venue for that analysis and those are issues that must be determined at trial.

The defendants have chosen to engage in illegal activities to voice their opposition to the Pipeline Project rather than to challenge it through legal means, which is not condoned. At its heart, the defendants’ argument is that the Province of British Columbia was not authorized to grant permits and authorizations to the plaintiff to construct the Pipeline Project on Wet’suwet’en traditional territory without the specific authorization from the hereditary chiefs. Rather than seeking accommodation of Wet’suwet’en legal perspectives, as suggested by their counsel, the defendants are seeking to exclude the application of British Columbia law within Wet’suwet’en territory, which is something that Canadian law will not entertain (Beaver).

Such “self-help” remedies are not condoned anywhere in Canadian law, and they undermine the rule of law. The Supreme Court of Canada has made it clear that such conduct amounts to a repudiation of the mutual obligation of Aboriginal groups and the Crown to consult in good faith (Behn v Moulton Contracting Ltd, 2013 SCC 261).

All three branches of the test for an interlocutory injunction are satisfied. Injunctive relief is an equitable remedy. In the Court’s view, it is just and equitable that an injunction order be granted and that this is an appropriate case to include enforcement provisions within the injunction order. The public needs to be informed of the consequences of non-compliance with an injunction order (West Fraser Mills v Members of Lax Kw’Alaams, 2004 BCSC 815).

Note: Benjamin Ralston is a sessional lecturer at the College of Law and a researcher at the Indigenous Law Centre. We are proud to acknowledge his contribution as co-counsel for the defendants in this case.

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.

Beaver v Hill, 2018 ONCA 816

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A claimant should not be barred from seeking leave of the court to pursue a s. 35 claim because his claim engages collective Aboriginal rights or incidentally engages questions of self-government.

In Beaver, Lauwers J.A. reversed the motion judge’s ruling, which dismissed Mr. Hill’s claim under s. 35 of the Constitution Act,1982. In his claim, Mr. Hill sought to challenge the applicability of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and Family Law Act, R.S.O. 1990 c. F.3, on the basis that he had a right to resolve support obligations under the Indigenous family dispute laws of the Haudenosaunee. The motion judge barred Mr. Hill from pursuing his claim on grounds of standing and justiciability. Regarding standing, the lower court pointed to the uncertainty in the law regarding an individual’s ability to personally pursue Aboriginal rights. Regarding justiciability, the motions judge cited Delgamuuk for the proposition that courts cannot adjudicate on claims involving broadly framed rights of self-governance.

In reversing this ruling, Lauwers J.A. pointed to various governing principles established in the case law. Among these was the principle that the basic purpose of s. 35 articulated in Van der Peet, Delgamuukw and Haida Nation, is to pursue reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown. Secondly, citing Behn, Lauwers J.A. emphasizes that in matters engaging Aboriginal treaty claims, a full hearing that is fair to all stakeholders is essential. Thirdly, he restates Binnie J’s caution in Lax Kw’alaams Indian Band that judges should avoid making definitive pronouncements regarding s. 35 at these early stages in the jurisprudence. He further adds that the reconciliation of individual and collective aspects of Aboriginal and treaty rights is an unresolved issue. Citing Behn, Lauwers J.A. notes that the Supreme Court “resisted the invitation of intervenors to classify or categorize [A]boriginal or treaty rights into those that are exclusively collective, those that are predominantly individual and those that are mixed.”

Applying these principles, Lauwers J.A. concludes that Mr. Hill’s claims are not exclusively claims to self-government. Instead, he seeks a right to have his support obligation determined by the Indigenous family system, which isn’t itself a claim to self-government. Moreover, while Mr. Hill’s claim may affect other Haudenosaunee people, this is simply the nature of constitutional litigation. Mr. Hill does not make claims for the Haudenosaunee peoples as a group. Lauwers J.A. continues to clarify that while this decision would enable separate spheres of jurisdiction (i.e. the provincial family law system and the Indigenous family law system) this is in keeping with the vision of s.35 as a tool for reconciliation.

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Welcome

Hi,

Welcome to the Native Law Centre’s official blog. We plan on using this space to post thoughts on the law as it pertains to Indigenous peoples, including case summaries and comments. Maybe even a picture or two of the fun events that we attend.

This blog more or less serves as a continuation of the Case Watch blog. The Case Watch blog has functioned on the Native Law Centre’s website since September 2014 and focused on summarizing new cases that pertained to Indigenous peoples in Canada.

Check back for further information as we plan on updating this blog regularly.

Thanks,

Publications Team, Native Law Centre