Tag Archives: Jurisdiction

R v Robinson, 2019 BCPC 273

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Defendant found guilty. The Wabalisla Street on the Bella Bella Indian Reserve is a road within the definition of a “highway” as set out in the Motor Vehicle Act.

Indigenous Law Centre
Indigenous CaseWatch Blog

The defendant was charged with driving while prohibited, contrary to s 95(1) of the Motor Vehicle Act [“MVA”]. The issue was whether the Crown proved beyond a reasonable doubt that Wabalisla Street located on Bella Bella Indian Reserve is a road within the definition of a “highway” as set out in the legislation. The analysis fell into two areas of consideration: 1) was the road designated or intended for or used by the general public for the passage of vehicles, and 2) are Aboriginal persons living on a reserve members of the general public.

The defence argued the reserve is in essence a closed community and any others who might use the street do so only to the extent which is incidental to the ownership of reserve property. Further, as the community is only accessible by water or air, any of the roads are thus precluded from the characteristics of a public highways within the meaning of the MVA. Bella Bella is a final destination, not a point of passage from one destination to another.

Albeit, there was investment in the network of transportation infrastructure that the community has either expressed or implied invitation to the general public to drive on their roads. The pursuit of tourism gave additional weight to this conclusion. There are numerous community-based resources along this roadway. It has traffic signs, is paved and is passable by two conventional cars. All persons are welcome on the reserve without restrictions or regulations. The defence also submitted that as the community had enacted their own by-law for the regulation and use of vehicles on their reserve pursuant to s 81(1)(f) of the Indian Act, this was evidence of their intent not to be subject to the MVA.

The fact that the community has a parallel regulatory by-law is not demonstrative that they have thus occupied the field through their regulations governing driving nor does it establish an intention not to be bound by the MVA. The defence says that a reserve road used by reserve residents is not a public road and is therefore, not a highway under the MVA. The Crown submits that the definition of a “highway” under the MVA, has use by the general public, which includes those Aboriginal members living on a reserve. The legislative purpose of s 95(1) of the MVA is to provide public protection against those prohibited from driving. The 1800 residents of the Bella Bella Reserve is not a trivial number of people. Collectively, they constitute the “general public”. There is nothing in the MVA that excludes individuals living on a reserve to be considered part of the general public. Therefore, the Crown has proven beyond a reasonable doubt that Wabalisla Street in Bella Bella is a highway under the MVA.

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.

Indigenous Law Centre
Indigenous CaseWatch Blog

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.

Beaucage v Métis Nation of Ontario, 2019 ONSC 633

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Motion granted. The nature of the Métis Nation of Ontario’s responsibilities and relationship with the government, does not transform the private voluntary organization’s membership decisions into public law decisions that are subject to judicial review.

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Métis Nation of Ontario (“MNO”) has moved to quash this application for judicial review on the ground that this Court has no jurisdiction. The underlying application for judicial review sought an order to set aside the decision of a genealogist, that denied the applicant’s appeal from earlier decisions that refused his application for membership in the MNO. The applicant’s mother and sister became registered citizens of the MNO in 2002. In 2003, the Supreme Court of Canada (“SCC”) released its decision in R v Powley, [2003] 4 CNLR 321 (“Powley”). The SCC, although emphasizing that there is no universal definition of “Métis”, provided a framework for determining who is Métis for the purposes of s 35 of the Constitution Act, 1982. Thereafter, a new definition of “Métis” was effectively adopted by the MNO. This application for judicial review does not relate to s 35 rights. When the new definition was implemented by the MNO, however, current citizens such as the applicant’s mother and sister were grandfathered and therefore did not need to meet the new requirements. New applicants, including family members as in this situation, however, must now meet the new requirements.

The test on a motion to quash an application for judicial review asks whether it is plain and obvious or beyond doubt that the judicial review application would fail (Adams v Canada (AG), 2011 ONSC 325 (“Adams”); Certified General Accountants Assn of Canada v Canadian Public Accountability Board (2008), 233 OAC 129 (Div Ct)). In this case, it is beyond the jurisdiction of this Court. As found in prior decisions, the Divisional Court has no jurisdiction under s 2 of the Judicial Review Procedure Act to judicially review any decision outside the public law sphere (Trost v Conservative Party of Canada, 2018 ONSC 2733; Adams; Deeb v Investment Industry Regulatory Organization of Canada, 2012 ONSC 1014). The purpose of judicial review is to ensure the legality of state decision making (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 (“Wall”). In Wall, the SCC underscored the importance of distinguishing between “public” in the generic sense and “public” in the public law sense. Broad public impact is insufficient to bring a decision within the public law sphere.

All corporations are creatures of statute. The corporation must be discharging public duties or exercising powers of a public nature before it is subject to judicial review (Knox v Conservative Party of Canada, 2007 ABCA 295). The MNO Act does not confer public duties on the MNO or delegate governmental responsibilities to it. The MNO Act and its history do not transform the decision at issue into a public law decision that is subject to judicial review. The MNO participates specifically on behalf of its citizens, not on the basis that it represents all Métis (“Powley”). Provincial and federal governments may accept an MNO card based on the MNO registry of citizens, but an MNO card is not an exclusive requirement. The MNO calls its members citizens but nothing turns on the use of that nomenclature.

Blackjack v Yukon (Chief Coroner), 2018 YKCA 14

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Wiyasiwewin Mikiwahp Native Law Centre

Appeal dismissed. The chief coroner and a judge have concurrent, equivalent and continuing jurisdiction to order an inquest whenever it is advisable, regardless of the steps previously taken by the chief coroner.

This is an appeal by the chief coroner from an order that an inquest be held into Cynthia Blackjack’s death, a First Nation woman from Little Salmon Carmacks First Nation (“LSCFN”). Ms. Blackjack, after having repeatedly attended a local health centre, died during her transport to Whitehorse on-board a medevac aircraft. The chief coroner assumed conduct of the investigation under the Coroners Act, and after her investigation, she decided not to hold an inquest into the circumstances surrounding Ms. Blackjack’s death. The LSCFN brought allegations of racial discrimination in the provision of health care services to the chief coroner’s attention and asked for her reconsideration of an inquest. Despite the allegations of systemic discrimination, the chief coroner maintained her decision. The LSCFN and the mother of Ms. Blackjack then applied to a judge under s 10 of the Coroners Act for an order that an inquest be held, which was granted. The chief coroner appealed from this order and to have it set aside. She contends that the chambers judge lacks the jurisdiction to make the order and has failed to accord her decision due deference.

There are two distinct functions for an inquest by Canadian coroners into the circumstances surrounding questionable deaths in their communities (Faber v The Queen, [1976] 2 SCR 9, (“Faber”); Charlie v Yukon Territory (Chief Coroner), 2013 YKCA 11, (“Charlie”)): 1) there is an investigative function that is narrow and case specific that involves an inquiry into the identity of the deceased and how, when and where that death occurred and; 2) the public-interest function, which is broader and social. This entails exposing systemic failings that cause or contribute to preventable death, and recommends systemic changes to reduce the risk to human life. It satisfies the community that the circumstances surrounding questionable deaths have received due attention from accountable public authorities (Faber; Pierre v McRae, 2011 ONCA 187, (“Pierre”)).

Coroners perform these functions, with and without the assistance of juries, within parameters established by legislation. When an inquest is conducted, it is inquisitorial in nature and it functions as an extension of the initial investigative process (Charlie). Like coroners, juries do not determine legal responsibility, as inquests also fulfill the broader public-interest function. Over time, Canadian courts have come to recognize this function as increasingly significant for several reasons, including the need to allay public suspicions, remove doubts about questionable deaths and contribute to justice being both done and seen to be done (Faber; Pierre). This is often particularly important where the deceased was a vulnerable person. It is also particularly apparent in this case given Ms. Blackjack’s possible vulnerability as a First Nation citizen and the nature of the care she received in the period preceding her death, regardless of whether a causal link was established between those circumstances and the medical cause of her death.

The applicable principles of statutory interpretation are uncontroversial. As stated in s 10 of the Interpretation Act, the provisions of the Coroners Act must be given such fair, large and liberal interpretation as best insures the attainment of its objects. The words of s 10 must be read in the entire context, in the grammatical and ordinary sense, harmoniously with the scheme and objects of the Coroners Act and the intention of the legislature (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27). The sorts of circumstances that surround a questionable death which may engage the functions of an inquest are potentially diverse and difficult to identify in the abstract. That there is good reason to believe a deceased person received substandard care in and around the time of death, could be a matter of legitimate public concern. It could involve systemic failings and may warrant public scrutiny, regardless of what precisely caused the death from a purely medical perspective.

The chief coroner and a judge have concurrent, equivalent and continuing jurisdiction to order an inquest whenever it is advisable, regardless of the steps previously taken by the chief coroner. Although the chief coroner has other powers under the Coroners Act, they are powers of investigation and administration, neither of which fall within the purview of a judge and all of which a deputy chief coroner can fulfill when the chief coroner is unavailable. The fact that the chief coroner is also granted other statutory powers under the Coroners Act does not suggest the legislature intended to subordinate the jurisdiction of a judge to that of the chief coroner under s 10. The words of s 10 also indicate a concurrent and equivalent jurisdiction that is continuing in nature. The plain meaning of its words is that both the chief coroner and a judge have ongoing jurisdiction to direct an inquest, if advisable, regardless of what has previously transpired. In effect, s 10 allows either the chief coroner or a judge to order an inquest into a death where the chief coroner has previously declined to do so.

Continuing jurisdiction of this sort is unusual in an adversarial system of justice. Nevertheless, it fits comfortably within the overall scheme of the Coroners Act. An inquest does not serve to determine rights and fault. There is no risk of double jeopardy or unduly prolonged exposure to liability posed by continuing jurisdiction of this nature. There is no risk of inconsistent orders if the chief coroner and a judge have concurrent, equivalent and continuing jurisdiction. This is so because s 10 jurisdiction is only exercised when one or the other directs that an inquest be held. While either or both may choose not to exercise s 10 jurisdiction faced with a particular set of circumstances, the Coroners Act does not enable either to order that an inquest shall not be held.

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.

Children’s Aid Society of the Regional Municipality of Waterloo v CT, 2017 ONCA 931

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Self-identification of Indigenous ancestry submitted at the appeal level of court, does not alone constitute as fresh evidence to overturn a trial decision when there has been no error of law. Trial decision of no access for a Crown ward restored.

This is the second appeal from a trial decision involving a 10-year-old girl that was made a Crown ward with no access for the purpose of adoption. The biological parents appealed the no access order. The first appeal judge concluded that, although the trial judge did not err, the parents should have access. He outlined what he considered to be: a miscarriage of justice; the trial judge’s interference, bias and abuse of the trial process; procedural delay; and the incompetence of trial counsel. He invited costs submissions personally against trial counsel for the parents. This appeal restores the trial judge’s order of no access; dismisses the parents’ cross-appeal; and allows the cross-appeal of counsel on ineffective assistance and the consequent costs order.

After the initial trial, the parents filed affidavits that declared for the first time that the father was Cree and the mother was Mi’kmaq. The reasons from the first appeal judge are a scathing review of Ontario’s child welfare system and an apology to the parents for the manner in which they were “treated, ignored, demeaned and disbelieved.” He considered fresh evidence, including an affidavit which indicated that the child loves her parents, wanted to see her parents, but also wanted to be adopted by the proposed adoptive parent. By this time, the child had been with the proposed adoptive parent for almost two years and was flourishing.

The test for fresh evidence in a child protection matter is more flexible than in other types of cases. Statutory requirements for access to a Crown ward according to the Child and Family Services Act (the Act), however, puts the onus on the parents who seek access to present evidence that satisfies the test in CAS Hamilton v CG. First, the relationship between the person and the child must be beneficial and meaningful to the child, as opposed to the person seeking access. Second, the access must not impair the child’s opportunities for adoption. There was uncontroverted evidence that the adoptive mother would not adopt if there was contact with the parents, which would then make the access order statutorily impossible. The first appeal judge nonetheless ordered access and erred in doing so. Simply put, when a Crown wardship order is granted with access, the parental relationship with the child is preserved. When a Crown ward is sought to be placed for adoption, the goal is permanency and the success of the adoption.

The parents submitted on the first appeal, and before this court, that a child’s Indigenous heritage introduces different considerations into the access analysis. There is potential harm to Indigenous children if adopted by non-Indigenous families, as they often experience challenges, risks, and vulnerabilities that other children adopted across cultural and racial boundaries do not have. The parents argued that if they do not have access to the child, she is likely to suffer from a lack of connection to her Indigenous culture, heritage and community. Courts recognize the pervasive effects of the historical and continuing harms to First Nations families. This does not, however, automatically exempt Indigenous children from the access provisions for Crown wards under the Act.

A parallel can be drawn with the court’s approach to the sentencing of Indigenous offenders. In R v Ipeelee, the Supreme Court describes the proper approach where courts must take judicial notice of such matters as the history of colonialism, displacement, residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders but provide the necessary context for understanding and evaluating the case-specific information presented by counsel. While Gladue principles do not directly apply to access to a Crown ward, the Supreme Court’s comments about context and the need for case-specific evidence are instructive.

The first appeal judge made no mention that the parents or the child were in any way involved in an Indigenous community or its culture. There is no evidence that the parents had any connection to their culture, that the child was ever exposed to the Indigenous culture, or that anyone from the Indigenous community had ever been involved with the parents or the child. Because of this, the second appeal judge found that there was no evidentiary record in this case to balance the importance of the uniqueness or preservation of the Aboriginal heritage of the child when considering the other factors set out in the CFSA.

Although the second appeal judge recognized that Indigenous membership has expanded to include self- identification, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to her. The first appeal judge erred by ordering access based on nothing but the parents’ self-identification with Indigenous heritage in the absence of any evidence on this issue specific to this child.

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

Case Watch for September 2016

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

Crown’s duty to consult & the constitutional competence of the NEB –

Tsleil-Waututh Nation v Canada (National Energy Board), 2016 FCA 219: The Federal Court of Appeal dismissed a statutory appeal from three interlocutory decisions of the National Energy Board (NEB) with respect to the Trans Mountain Pipeline proposal. Tsleil-Waututh Nation (TWN) challenged the NEB’s determination that the application for the project was sufficiently complete to proceed with an assessment and public hearing, a determination that included a listing and scoping of factors to be considered during the assessment, and an order detailing the steps and deadlines governing the assessment. While TWN raised complex arguments with regards to the NEB’s obligation to either discharge or assess Crown consultations, among others, the Court of Appeal dismissed its appeal largely on preliminary issues. The Court held that none of the challenged decisions were final and TWN ought to have first raised its concerns before the NEB itself rather than proceeding directly to the Court of Appeal. While the Court declined to intervene with respect to the Crown’s duty to consult at this stage, it did so without prejudice to TWN’s ability to challenge the final decisions of the Governor in Council on consultation for this project.

Modern treaty signatory added as defendant in Aboriginal rights case –

Cowichan Tribes v Canada (Attorney General), 2016 BCSC 1660: The British Columbia Supreme Court allowed an application from Tsawwassen First Nation (TFN) to be added as a defendant in an action brought by Cowichan Tribes and others for declarations of Aboriginal rights and title in what is now the City of Richmond. While Cowichan’s claims overlap with TFN’s territory, as defined in its modern treaty, Cowichan argued against joinder on the basis that its claims are narrowly defined and do not overlap with any TFN lands under its treaty. The Court accepted that TFN’s rights to the portion of its territory in conflict with Cowichan’s claims are largely consultative, but held that these are still section 35 rights to be accorded recognition. These rights were also sufficient to provide TFN with a direct interest in the litigation. TFN’s rights under the agreement fluctuate depending on the land-holding status of the area underpinning these rights, and the litigation could result in the introduction of an extra party into negotiations over fishing areas that TFN has rights to under its agreement.

Property taxation on reserve and statutory interpretation –

Musqueam Indian Band v Musqueam Indian Band (Board of Review), 2016 SCC 36: The Supreme Court of Canada dismissed an appeal from Musqueam Nation against a 2011 property taxation assessment of a golf and country club on its reserve land being calculated on the basis of its use as a golf and country club, as opposed to its value as residential land. The reserve land in question was surrendered in 1957 for lease to the golf and country club and its value for property tax purposes was consistently assessed on the basis of the restrictions under that lease from that point on. In 1996, however, Musqueam amended its property assessment bylaw to reduce the types of restrictions that an assessor could consider to “any restriction placed on the use of the land and improvements by the band” (emphasis added). In 2011, Musqueam challenged the consideration of the restrictions under the lease in a property tax assessment on the basis that the lease was negotiated between the Crown and the golf and country club and its restrictions were therefore not imposed “by the band”. Musqueam also argued that the 1996 amendment was made to account for its newly recognized land management powers under the Framework Agreement on First Nations Land Management. Both arguments were rejected.

Determination between competing 60’s scoop class actions –

Thompson v Manitoba (Minister of Justice), 2016 MBQB 169: The Manitoba Court of Queen’s Bench exercised its discretion to permit one of two class actions to proceed with respect to individuals affected by the 60’s scoop in Manitoba (Meeches v Canada). It also stayed the other proposed class action (Thompson v Manitoba), issued a declaration that no further proposed 60’s scoop class actions are to be commenced in Manitoba on the same facts without leave, and granted leave to amend Meeches to ensure it covers the class members from Thompson. While Thompson was filed first, counsel did not take steps to seek certification in a timely manner. Meeches was also framed more consistently with the Brown case that has already been certified in Ontario with respect to 60’s scoop survivors there.

Addressing FASD in context to Gladue factors –

R v Drysdale, 2016 SKQB 312: The Saskatchewan Court of Queen’s Bench extensively considered the Gladue factors and Fetal Alcohol Spectrum Disorder (FASD) of an Aboriginal man in sentencing him for assault and threatening to use a weapon, relying on a full Gladue report and four witnesses for this purpose. The Court held that in the circumstances, a “needs based” as opposed to a retributive sentence was appropriate. The Court held that “a Gladue impacted individual affected by FASD has a reduced moral and legal responsibility” with respect to actions such as those underlying the offence in this case, which exhibited impulsiveness and a disconnect between actions and consequences common among FASD affected individuals. The Court also considered the Truth and Reconciliation Commission’s Call to Action 34, which focuses on better addressing the needs of offenders with FASD, in crafting its sentence.

First Nations advisory organization declared provincial entity –

Treaty 8 Tribal Association v Barley, 2016 FC 1090: The Federal Court allowed an application for judicial review of a federal adjudicator’s conclusion that the Treaty 8 Tribal Association was a federal undertaking for the purpose of the application of the Canada Labour Code. The adjudicator was held to have failed to apply the functional test to determine whether the nature, operations and habitual activities of the Association fell under the head of power of “Indians, and Lands reserved for the Indians”. The Association provides advisory, administrative, advocacy and other services to its members and other First Nations, but does not provide services under the Indian Act nor within the realm of First Nations governance or reserve land. The habitual activities of the Association did not fall under subsection 91(24) of the Constitution Act either.

Defamation by way of band council resolution –

Hazel v Rainy River First Nations, 2016 ONSC 5875: The Ontario Superior Court of Justice rejected the defendant First Nations’ motion for summary judgment and instead allowed summary judgment in favour of the plaintiffs in a defamation claim. The defendant First Nations described the plaintiffs as “undesirables” in a band council resolution (BCR), declared them trespassers on its territory, and resolved that they were to be removed and charged as trespassers if they were found on its territory. The Court held that placing the BCR into a book available to community members was a sufficient act of publication for the purposes of sustaining an action for defamation regardless of whether anyone had looked at the BCR in question. The Court also held that there was no dispute that describing the plaintiffs as “undesirables” was defamatory. Arguments with respect to qualified privilege, issue estoppel and abuse of process were all rejected.

Severance of criminal charges in context to constitutional challenge –

R c Rice, 2016 QCCS 4610 (in English): The Superior Court of Quebec severed criminal charges against three men from Kahnawake in relation to the alleged sale of tobacco to non-Aboriginals without collecting and remitting the retail consumer tax from these sales to the federal and provincial authorities. The defendants raised a constitutional challenge in this case involving various rights asserted on behalf of the Mohawk Nation, including rights of self-determination and internal sovereignty, a right to harvest, produce and sell tobacco products, and a right to exemption from taxation under s 87 of the Indian Act. The Court held that there was no reasonable likelihood that the s 35 rights claimed, assuming they were proven, would be unjustifiably infringed by the defendants’ obligations to collect and remit consumer taxes from non-Aboriginal customers. The Court also held that there was no reasonable likelihood of the s 87 exemption being successfully invoked against the defendants’ obligations to collect and remit taxes from non-Aboriginal customers. The Court was unable, however, to conclude that there was no reasonable likelihood of the defendants being able to prove that s 87 exempted them from the imposition of duties on tobacco products. The two charges related to the last argument were severed from the others and the Court ordered for a trial to proceed separately with respect to the charges that were not implicated by this argument.

Metis Settlement’s jurisdiction to specify membership requirements –

Kikino Metis Settlement v Metis Settlements Appeal Tribunal (Membership Panel), 2016 ABCA 260: The Alberta Court of Appeal has granted permission to appeal on a question of law from a decision of the Metis Settlements Appeal Tribunal setting aside a membership decision by the Kikino Metis Settlement. Kikino has passed a bylaw that appears to provide it with discretion to reject an application for membership from a candidate who is otherwise eligible to apply under the Metis Settlements Act and meets the minimum standards for admission under the Act. An otherwise eligible applicant who was rejected for reasons not set out in the Act successfully challenged her rejection before the Appeal Tribunal. The Court of Appeal will allow an appeal to proceed on two questions: 1) whether a Metis settlement can establish membership criteria that is more onerous than the minimum standards under the Act; and 2) if so, whether the criteria applied to the applicant rejected in this case was a lawful exercise of Kikino’s jurisdiction under its membership bylaw.

Placement of Métis child with non-Aboriginal adoptive parents –

LM v British Columbia (Director of Child, Family and Community Services), 2016 BCCA 367: The British Columbia Court of Appeal dismissed two appeals related to the intention of the Director of Child, Family and Community Services to place a Métis child from British Columbia in the care of a non-Aboriginal couple in Ontario that has already adopted two of the child’s siblings. The appellants have been the child’s foster parents since two days after her birth and one of the appellants is also of Métis heritage. The first appeal was dismissed primarily because the appellants were found to be seeking an adoption order for which there was no basis in the statutory scheme. The Court of Appeal rejected an argument that the lower court had not paid adequate attention to the child’s Métis heritage, concluding that this was not relevant to the Director’s decision that the appellants were challenging on judicial review. The Court of Appeal rejected the second appeal on the basis that the Charter arguments that the appellants wished to raise were correctly found to be subject to res judicata and there was an insufficient evidentiary record to decide these argument on appeal in any event.

Stays of proceedings for unreasonable delay (section 11(b)) –

R c Gilpin, 2016 QCCQ 9459 (in French only): The Court of Quebec allowed an application to stay criminal proceedings against two men in the judicial district of Abitibi on the basis that delays in these proceedings had violated their right to be tried within a reasonable time under s 11(b) of the Charter. The Court applied the analysis recently mandated by the Supreme Court of Canada in R v Jordan to conclude that the delays in each applicant’s case were beyond the presumptive ceiling for reasonable delay, and there were insufficient exceptional circumstances to rebut this presumption of unreasonableness. The Court acknowledged past jurisprudence where the unique circumstances of communities in northern Quebec were found to justify trials taking longer, but concluded that these circumstances will no longer be considered “exceptional” for the purposes of applying s 11(b).

R c Rice, 2016 QCCS 4659 (in English): The Superior Court of Quebec allowed a s 11(b) application to stay criminal proceedings against three men from Kahnawake on charges relating to the alleged sale of tobacco to non-Aboriginals without collecting and remitting the retail consumer tax from these sales to the federal and provincial tax authorities. The Court held that even prior to the Supreme Court’s recent Jordan decision, the delays in this case would have been sufficient to ground an application for a stay of proceedings under s 11(b). While the defendants had presented a tardy constitutional challenge to the charges against them, this had no bearing on any delays they faced for the purpose of the s 11(b) analysis.

Stays of proceedings pending appellate decision on Métis rights –

Québec v Savard, 2016 QCCS 4391 (in French only): The Superior Court of Quebec allowed an application to stay proceedings in which Quebec is seeking to evict the applicant from a hunting camp. The applicant’s sole defense rests on his assertion that he is a member of the Métis community of Domaine du Roy and Seigneurie de Mingan and his community has Métis hunting rights that are protected under s 35(1) of the Constitution Act, 1982. Another member of this same community, Ghislain Corneau, was unsuccessful in defending himself from a parallel application for eviction from the hunting camp before the Superior Court of Quebec early last year (see Québec c Corneau). In Corneau, the Superior Court ruled that the Métis community to which Mr. Corneau and Mr. Savard belong does not meet the Supreme Court of Canada’s Powley test. Mr. Corneau has since appealed that decision to the Quebec Court of Appeal and an appellate decision remains outstanding. The proceedings against Mr. Savard have been stayed until the Court of Appeal renders its judgment in Corneau.

Note that parallel applications were granted in two other proceedings: Québec v Bouchard, 2016 QCCS 4392 & Québec v Desbiens, 2016 QCCS 4393

Case Watch for August 2016

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

Crown’s duty to consult in multi-stage permitting process –

Listuguj Mi’gmaq First Nation v New Brunswick, 2016 NBQB 138: The New Brunswick Court of Queen’s Bench dismissed an application for judicial review to quash three provincial approvals granted to Chaleur Terminals Inc for the construction of a rail terminal and transfer system in Belledune, New Brunswick. The applicants argued that these approvals were issued without any meaningful consultation or accommodation of the Aboriginal and treaty rights and title of three Mi’gmaq communities along the Gaspé peninsula of Quebec. The Court rejected this application on the basis that the Crown had met the low level of consultation that it had pre-determined to be adequate for this project in 2014. The Crown first conducted its own assessment of the appropriate level of consultation in July 2014 and issued a certificate for the project to proceed at that time. The applicants never challenged those 2014 decisions and were now out of time to do so. The application was allowed to proceed with respect to three approvals from 2015 that involved excavation, the clearing of the site, and the installation of oil tanks. However, there was no new information brought to the province’s attention that would justify deeper consultation on the 2015 approvals and the province met the low level of consultation mandated by its 2014 determination.

Use of actuarial risk assessment tools for Aboriginal offenders –

Canada v Ewert, 2016 FCA 203: The Federal Court of Appeal allowed the Crown’s appeal from a Federal Court decision that concluded that the use of certain actuarial tools for assessing recidivism and psychopathy was unreliable with respect to Aboriginal inmates, and thereby unjustifiably infringed upon their section 7 rights and breached the statutory obligations of the Correctional Service of Canada. The Federal Court had held that Mr. Ewert was not required “to establish definitively” that the assessment tools were biased, but the Court of Appeal disagreed. It allowed the appeal on the basis that Mr. Ewert was required to prove on a balance of probabilities that the actuarial tools generate or were likely to generate false results for Aboriginal inmates, and failed to do so.

Gladue factors in sentencing –

R v Okimaw, 2016 ABCA 246: The Alberta Court of Appeal allowed the sentence appeal of an Aboriginal offender on the grounds that, among other things, the sentencing judge failed to give weight to specific Gladue factors. The Court of Appeal used this decision as an opportunity to provide a “practical framework” for the consideration of Gladue factors. It was not enough for the sentencing judge to merely acknowledge “the existence of systemic factors”; the judge had a duty to consider how unique systemic and background factors played a role in bringing the particular Aboriginal offender before the courts. The Court of Appeal found that this necessary context was effectively absent from, or at least given insufficient weight in the decision under review. The Court of Appeal also clarified that it is not incumbent on a Gladue report writer to explain the impact of Gladue factors on moral blameworthiness. It is the sentencing judge that has the duty to carry out an “individualized assessment” of Gladue factors and this duty cannot be delegated. In this case, the Court of Appeal found that the impact of Mr. Okimaw’s Gladue factors were “largely self-explanatory”.

R v Alec, 2016 BCCA 347: The British Columbia Court of Appeal dismissed the sentence appeal of an Aboriginal offender who was sentenced without the aid of a Gladue report. A report was allowed as fresh evidence on appeal. However, the Court of Appeal held that a “formal” Gladue report was not necessary for sentencing Aboriginal offenders. The Court held that the sentencing judge was clearly aware of Mr. Alec’s Aboriginal circumstances and his “disconnection” from his First Nation, and it was open to the sentencing judge to assume that Mr. Alec would not participate in the preparation of a report given his previous reluctance to do so.

R v Sateana, 2016 NUCJ 20: The Nunavut Court of Justice considered Gladue factors in sentencing an Aboriginal man for manslaughter. The Court stated that the systemic factors that influence criminality in Nunavut are well known and well documented, including the inter-generational impact of residential schools, over-crowded and sub-standard housing, poverty, high rates of domestic violence and sexual abuse, and high rates of alcohol and substance abuse. However, the Court held that a Gladue analysis is something “which this court is called upon to give effect to on a regular basis, but which it is unable to implement in any meaningful way”. While Mr. Sateana had appeared before the Court many times before the events leading to his manslaughter conviction, the Court “would have been unable to craft sentences which addressed his deep seated issues and alcohol addiction because the territory has no treatment or rehabilitation facilities and few counselling and mental health services.” Mr. Sateana was sentenced to 13 years incarceration.

Gladue factors in relation to solitary confinement –

Hamm v Canada (Attorney General), 2016 ABQB 440: The Alberta Court of Queen’s Bench allowed an application for habeas corpus from three self-represented inmates placed in solitary confinement, two of whom were Aboriginal. The Court ordered the release of these three inmates from segregation as the institution had failed to provide them with the high level of procedural fairness they were owed before being placed into solitary confinement. Among other concerns, the Court held that “given the potential rehabilitation benefits and other benefits of access to [A]boriginal spiritual and cultural programs, each [A]boriginal inmate should have had a Gladue type assessment of what placements would be appropriate.” The Court also concluded that it was “unreasonable for a correctional institution to deny transparency in relation to its decisions concerning whether, and how, and where, [A]boriginal offenders should be further deprived of liberty”.

Gladue factors & pledges of on-reserve property in bail hearing –

R v Hope, 2016 ONCA 648: The Ontario Court of Appeal granted an Aboriginal man release from custody pending a new trial on charges that include second degree murder. The Court of Appeal took note of the various contexts in which it has previously applied Gladue principles, including bail hearings, and stated that Gladue principles informed certain aspects of its analysis in this case. Ultimately, the Court concluded that detention pending appeal was not necessary in the public interest in this case. The Court also dismissed the Crown’s concerns with the fact that the individuals offering sureties and pledges against the equity in their homes on Mr. Hope’s behalf were of Aboriginal descent and lived on reserve. Section 89 of the Indian Act protects property on reserve from being subject to a charge by anyone other than an “Indian” or a band. The Court of Appeal held that this should not interfere with an Aboriginal person’s ability to secure release from detention, and what mattered was that these individuals expressed a willingness to pledge the “not insignificant” equity in their properties, not whether the Crown could execute against those properties.

Extinguishment of Aboriginal rights –

Québec (Procureure générale) c Lachapelle, 2016 QCCS 3961 (in French only): The Quebec Superior Court granted an application to evict two individuals from a hunting camp in the Eastmain River basin in northern Quebec. One of the respondents was a member of the Algonquins of Barriere Lake and asserted that the hunting camp was incidental to an Aboriginal right to hunt. However, the respondent failed to provide any evidence in support of a site-specific hunting right in the area in question. The Court noted that the camp was located approximately 1200km away from the respondent’s reserve and fell within Cree territory recognized under the James Bay and Northern Quebec Agreement (JBNQA). The Court also held that even if the respondent had proven a site-specific right in the area where the camp is located, the Court could not recognize it in light of the extinguishment clause in the JBNQA. The respondent declined the opportunity to challenge the JBQNA’s constitutionality. The Court did note, however, that the JBQNA’s constitutionality is at issue in another proceeding before the Superior Court.

Exceptions to the tax exemption under section 87 of the Indian Act –

Bell v Canada, 2016 TCC 175: The Tax Court of Canada dismissed an appeal from tax assessments based on the tax exemption for personal property situated on reserve (section 87 of the Indian Act). The appeal concerned whether the exemption could be applied to annual bonuses received by a status “Indian”, Ms. Bell, from a company she owned and operated with her non-status spouse. Ms. Bell worked out of an office located on reserve. Ms. Bell received regular bi-weekly pay from the company as well as the balance of the company’s annual income as year end bonuses. The Minister allowed her to rely on the tax exemption for her regular pay but not for her year end bonuses. The Tax Court upheld the Minister’s decision on the basis that there was no substantive connection between the bonuses and the reserve land where Ms. Bell was working. The Tax Court also found that the bonuses exceeded reasonable remuneration and were therefore abusive of the tax exemption.

Crowns added as parties in private law action involving Aboriginal rights –

Saik’uz First Nation v Rio Tinto Alcan Inc, 2016 BCSC 1474: The BC Supreme Court allowed an application to add both the federal and provincial Crowns as defendants to a tort action against Rio Tinto Alcan in relation to impacts on the Nechako River and its fishery resources. The action is premised in part on asserted Aboriginal rights and title. The Court noted that the plaintiffs acknowledged that the consequences of this “major and complex case”, which would define the intersection between Aboriginal rights and tort law, may be huge. This may warrant inclusion of the Crown on its own. Further, the plaintiffs had already formally invited the Crown to participate through the Notice of Constitutional Challenge they issued in order to challenge the applicability of certain statutes. Under British Columbia’s Water Act, the province also asserts ownership over the water under dispute in this action, thereby warranting its involvement. Finally, the Court held that even where a formal declaration of Aboriginal title is not sought in the pleadings, the federal and provincial Crowns are still necessary parties to the determination of issues relating to Aboriginal title.

Injunction against First Nation’s interference with use of road –

Revolution Infrastructure Inc v Lytton First Nation, 2016 BCSC 1562: The BC Supreme Court allowed an application from Revolution Infrastructure for an interlocutory injunction restraining the Lytton First Nation from prohibiting or interfering with its use of an access road and ranch on which it operates a composting facility. Lytton First Nation asserts Aboriginal rights and title to the valley in which the facility and road are located and asserts a right to control access on this basis, as well as the basis that the road crosses its reserve lands. Lytton has enacted a band bylaw requiring Revolution to obtain a permit to use the road. The Court held that there are several serious questions to be tried in this case, including the nature of Aboriginal title and whether the band bylaw was validly enacted. The Court also held that interference with Revolution’s access to the road would result in irreparable harm. Finally, the Court held that the balance of convenience favoured Revolution as Lytton’s actions had disrupted the status quo of its use of the road without interference since 2009, the road had been used by the public for a significant period before then, and a facilitation process was in place that could potentially address the issues between the parties.

No jurisdiction for provincial tribunal with respect to on-reserve clinic –

Cahoose v Ulkatcho Indian Band, 2016 BCHRT 114: The BC Human Rights Tribunal dismissed a complaint against the Ulkatcho Indian Band and others on the basis that it lacked jurisdiction over the matter. The complainant had been employed in the band’s healthcare clinic on reserve. The tribunal held that there was no dispute over the proper approach for determining the limits of its jurisdiction. Instead, the key issue was which entity the so-called “functional test” needed to be applied to. The complainant argued that the First Nations Health Authority administered the clinic. However, the tribunal found no evidence of the Authority acting as a service provider. Instead, it concluded that the band was the employer of the clinic’s staff and the entity providing medical services on the reserve. Finally, the tribunal concluded that the band’s operations were seen to be federal when the functional test was applied.

Jurisdiction of self-governing First Nation tribunal –

Kwanlin Dün First Nation v Kwanlin Dün First Nation Judicial Council, 2016 YKSC 35: The Yukon Supreme Court dismissed an appeal from the Kwanlin Dün First Nation (KDFN) against two decisions of its Judicial Council that set aside its termination of two tenancy agreements. KDFN argued that the Judicial Council had no jurisdiction to decide matters relating to landlord and tenancy issues since KDFN has not enacted any laws on this subject matter and provincial legislation therefore applies. The Court found this dispute raised a question of true jurisdiction that must be reviewed on a standard of correctness. It held that the Judicial Council, by virtue of KDFN’s Constitution and its Judicial Council Act, had the power to review administrative decisions by the KDFN, including those it makes in a landlord and tenant context, to ensure its Constitution and laws are complied with. The Court went on to conclude that the Judicial Council had not exceeded its jurisdiction by ruling on matters of procedural fairness and KDFN’s constitutional values in context to the tenancy disputes at issue. The Judicial Council did not rule on specific landlord-tenant issues.

Indian Residential Schools Settlement Agreement –

Fontaine v Canada (Attorney General), 2016 MBQB 159: The Manitoba Court of Queen’s Bench allowed a Request for Directions with respect to a claim that an individual was wrongfully denied compensation under the IRSSA for sexual abuse at a residential school. The adjudicator accepted that a nun grabbed the claimant’s genitals while he was at residential school, but was not satisfied that the act had a “sexual purpose”. This decision was upheld on review and re-review. The Court found that it had the jurisdiction to review the re-review adjudicator’s decision on a standard of reasonableness. It went on to conclude that the first adjudicator’s interpretation of the IRSSA as requiring a “sexual purpose” for sexual touching to be compensable was fundamentally inconsistent with the plain language of the IRSSA and with the criminal law jurisprudence that the adjudicator purported to apply. It was therefore unreasonable for the re-review adjudicator to uphold this decision. The Court sent the claim back to be reconsidered in accordance with its reasons.

Fontaine v Canada (Attorney General), 2016 ONSC 5359: The Ontario Superior Court of Justice addressed the results of an investigation into the legal services provided by Douglas J. Keshen and his former law firm with respect to claims under the Indian Residential Schools Settlement Agreement (IRSSA). The report resulting from the investigation was “largely a vindication for Mr. Keshen”. However, there were two exceptions to this: 1) Mr. Keshen was found to have facilitated third party loans on the basis of a promise to repay the loans from IRSSA awards, which is prohibited under the IRSSA; and 2) Mr. Keshen’s practice of reporting to clients orally rather than in writing did not fully meet the Law Society of Upper Canada’s guidelines for lawyers acting on IRSSA files. No costs were ordered for either party and Mr. Keshen was not ordered to pay the costs of the investigation.

Case Watch for July 2016

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

Crown’s duty to consult –

Gitxaala Nation v Canada, 2016 FCA 187: The Federal Court of Appeal quashed the Order in Council and Certificates of Public Convenience and Necessity for the Northern Gateway pipeline project that was proposed to be constructed between Bruderheim, Alberta and Kitimat, British Columbia. The Court found that the federal Crown’s consultation on the project fell “well short of the minimum standards prescribed by the Supreme Court in its jurisprudence”. Among other issues, the Crown failed to engage in a respectful and meaningful dialogue on the First Nations applicants’ asserted Aboriginal title and governance rights, instead choosing to restrict itself to the discussion of mitigation of environmental impacts as a form of accommodation. The Crown also failed to provide any reasons for its conclusion that its duty to consult and accommodate had been met prior to issuing the Order in Council.

Pimicikamak Cree Nation v Manitoba, 2016 MBQB 128: The Court of Queen’s Bench of Manitoba dismissed Pimicikamak Cree Nation’s application for judicial review of the provincial Crown’s decision to enter into a settlement agreement with Manitoba Hydro and the Incorporated Community Council of Cross Lake. One issue in the litigation was the concern raised by Pimicikamak, representing the traditional government of the Cross Lake Cree, that the Cross Lake community (a municipality made up primarily of Aboriginal people) was not a collective entity capable of representing Aboriginal people or settling their claims, and was fragmenting the Aboriginal people in the area. The Court rejected Pimicikamak’s arguments that Crown consultation on the settlement agreement started too late, was not meaningful or sufficient, and foreclosed accommodation. The Court also upheld the Crown’s decision not to entertain changes to the agreement that Pimicikamak proposed, finding that Pimicikamak was attempting to negotiate in a way that would cause the Crown to abandon the settlement agreement it had negotiated in principle with other parties.

Sipekne’katik v Nova Scotia (Environment), 2016 NSSC 178: In the underlying matter, Sipekne’katik has appealed the Crown’s approval of a natural gas storage facility at Fort Ellis, Nova Scotia, alleging that the provincial Crown breached its duty to consult and failed to provide the First Nation with procedural fairness with respect to the project’s approval. In this case, Sipekne’katik applied for a stay of the approval pending its appeal. The Supreme Court of Nova Scotia rejected Sipekne’katik’s application on the basis that Sipekne’katik failed to provide sufficient evidence of irreparable harm. Among other things, the Court held that the project had mitigation measures in place designed to reduce or avoid any adverse impacts, and there was insufficient evidence of irreparable harm to the Crown’s ability to engage in meaningful consultation if the stay was not granted.

Limitation on human rights jurisdiction –

Canadian Human Rights Commission v Canada, 2016 FCA 200: The Federal Court of Appeal upheld the Canadian Human Rights Tribunal’s dismissal of two complaints regarding section 6 of the Indian Act, which prevents the complainants from registering their children under the Act. The complaints were dismissed on the basis that the Federal Court of Appeal had already previously concluded that federal human rights legislation does not authorize complaints directed at legislation per se, and the complaints were characterized as just that. While the Court took note of the “sorry state of the case law and its lack of guidance on when decisions of human rights tribunals interpreting provisions in human rights legislation will be afforded deference”, it concluded that the tribunal’s decisions ought to be reviewed on a standard of reasonableness. It then determined that the dismissals were reasonable.

Federal Court jurisdiction –

Dickson v Canada, 2016 FC 836: The Federal Court allowed an appeal from an order striking certain defendants from the statement of claim in an action for damages over the Minister of National Revenue’s refusal to renew a federal tobacco manufacturing licence. The claim was originally struck as against all defendants except the federal Crown on the basis that the liability of the other defendants was grounded in provincial law. On appeal, however, the Court held that the plaintiffs’ claim against several of these defendants was “in pith and substance” based on federal law and governed by a detailed federal statutory framework essential to the outcome of the case – namely, the Indian Act.

Proper factual basis for Charter litigation –

Re Constitutionality of Abegweit First Nation Custom Election Rules, 2016 FC 750: The Federal Court addressed an application for a reference under s 18.3 of the Federal Courts Act regarding the constitutionality of Abegweit First Nation’s custom election rules in terms of its treatment of off reserve members. More specifically, Chief and Council were seeking a declaration that restrictions against off reserve members voting or running in the First Nation’s custom elections were contrary to the right to equality under s 15 of the Charter. In 2009, council attempted to amend the custom rules restricting off reserve members from participating in elections to bring them in line with new jurisprudence on this issue, but the amendments were rejected in a plebiscite vote. The Court held that it did not have jurisdiction to hear and determine this matter because it did not originate from any ongoing proceeding and there was no proper factual basis to determine the Charter issue.

Kikino Metis Settlement v Husky Oil Operations Ltd, 2016 ABCA 228: The Alberta Court of Appeal determined an application for permission to appeal an order of the Metis Settlements Appeal Tribunal Land Access Panel in relation to annual compensation rates for surface lease sites. The Court granted leave to appeal from the Panel on three grounds in relation to statutory interpretation of the Metis Settlements Act. However, the Court denied Kikino the opportunity to appeal from the Panel on the ground that s 125 of the Act infringes s 15 of the Charter. Kikino sought to compare the timeline for compensation reviews under the Metis Settlements Act with the comparable provisions of the Surface Rights Act for the purposes of its Charter argument. The Court found that there was no proper factual foundation to address the Charter argument on appeal.

Gladue factors –

R v Fehr, 2016 SKPC 87: The Saskatchewan Provincial Court addressed Gladue factors in context to the sentencing of an Aboriginal offender for robbery. Among other factors, the Court noted that Ms. Fehr had been apprehended at the age of 3, and lived in 13 different foster homes between the ages of 3 and 5 before being adopted at age 5 by a Caucasian family, along with her two sisters. In taking note of Ms. Fehr’s Gladue factors, the Court noted that she was “raised by a loving family not of her own culture” and “separated from her [A]boriginal community”. In the Court’s view, “Native children raised by non-[N]ative families face unique challenges of identity, community, and social development”.

R v Robinson, 2016 BCSC 1269: The British Columbia Supreme Court addressed Gladue factors in context to the sentencing of an Aboriginal offender for breaking and entering and mischief. The Court found that Mr. Robinson was adopted when he was seven months old, raised in a “non-[A]boriginal” setting, and had only limited interaction with his biological mother and First Nations community of origin. The Court held that the Supreme Court of Canada’s concerns in the cases of R v Gladue and R v Ipeelee were relevant but “attenuated in Mr. Robinson’s circumstances”.

R v Joe, 2016 YKTC 31: The Yukon Territorial Court addressed Gladue factors in context to an Aboriginal offender’s refusal to comply with a breathalyzer demand, among other charges. The Court noted that it “had the benefit of a thorough, detailed and reliable [Gladue] Report” and the “background of this particular offender [was] rife with Gladue factors”. Among other things, Mr. Joe had endured sexual and physical abuse during ten years that he spent in “one of the more repressive and brutal residential schools in Canada”. Nevertheless, the Court held that Mr. Joe “should have almost no particular consideration afforded to him as an [A]boriginal offender” and that the relevance of Gladue in this case was “infinitesimal in and of itself”. The Court also stated it had no evidence before it that Aboriginal offenders are over-represented in jail on account of drinking and driving offences.

Limitation on admissibility of Gladue report –

R v Alec, 2016 BCCA 282: The British Columbia Court of Appeal heard an appeal from an Aboriginal offender’s conviction for second degree murder in which the appellant sought to set aside his guilty plea on the grounds that it was invalid and his conviction was a miscarriage of justice. In arguing his appeal, Mr. Alec sought to adduce fresh evidence in the form of a Gladue report addressing the concept of ‘Aboriginal fatalism’ to explain his failure to make a timely application to set aside his plea. Mr. Alec’s appeal was dismissed and the Court of Appeal raised several concerns with the way in which the Gladue report was relied upon in this appeal: it was not in an admissible form and the portion relied upon was entirely hearsay; the portion relied upon constituted opinion evidence that could only be admitted through a qualified expert, which the author was not; and the report was not found to be relevant to the validity of the guilty plea at issue.

Use of actuarial risk assessment tools for Aboriginal offenders –

R v Haley, 2016 BCSC 1144: The British Columbia Supreme Court addressed a Crown application to have an Aboriginal offender designated a dangerous offender and sentenced to an indeterminate period of incarceration in a federal penitentiary. Among other arguments, Mr. Haley raised the Federal Court’s 2015 decision in Ewert v Canada, where it was found that the same actuarial risk assessment tools applied to Mr. Haley “are susceptible to cultural bias and therefore are unreliable” in context to Aboriginal offenders. The Court upheld use of these same tests for the following reasons: the Crown’s expert evidence was not based exclusively on the use of these tools, but rather on a more broad-based and comprehensive reflection on all available information; the Crown’s expert testified that her opinion would not change even if she factored out any reliance on the contested tools; the evidentiary record was different from that in Ewert in terms of the reliability of the tools; and the context was different in this case, as sentencing courts addressing dangerous offender applications  “should be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety”.

R v Awasis, 2016 BCPC 219: The British Columbia Provincial Court addressed the application of actuarial risk assessment tools to Aboriginal offenders in context to a dangerous offender application raised during a sentencing hearing for two counts of sexual assault. The Court distinguished the Federal Court’s findings in Ewert on the basis that in this case the actuarial tools were only used “as a very small part of a wide ranging consideration of Mr. Awasis’ psychological make-up, his antecedents, and his future prospects”, as part of “a contextual and individual review of Mr. Awasis’ risk level”. The Court held that the findings in Ewert were “part of a decision of another trial court respecting quite different issues than those that arise in the case at bar”.

Spousal support security over reserve land –

McMurter v McMurter, 2016 ONSC 1225: The Ontario Superior Court of Justice addressed whether a spousal support order could be secured against a support payor whose significant assets are located on land subject to the provisions of the Indian Act. Both the support payor, Mr. McMurter, and payee, Mrs. McMurter, are members of the Mohawks of the Bay of Quinte and live on reserve. While s 29 of the Act  prohibits the seizure of reserve land by a “non-Indian”, s 89 provides an exception for seizures in favour of another “Indian” or “band”. The Court granted Mrs. McMurter an order to charge and lien the Certificates of Possession held by Mr. McMurter as security for a spousal support order, subject to approval by the Mohawks of the Bay of Quinte and the Minister of Indigenous Affairs, which is required by the Act.

Indian Residential Schools Settlement Agreement –

Fontaine v Canada, 2016 ONSC 4326: The Ontario Superior Court of Justice addressed a request for directions arising from the rejection of the claimant’s application for compensation for his undisputed sexual abuse at the Spanish Boys’ Residential School. The adjudicator had dismissed the application on the basis that the sexual assaults occurred after the school had closed, and this decision was subsequently upheld on review and re-review. In preparation for its response to the request for directions, Canada found documents undermining the adjudicator’s conclusion and those documents were brought to the Court’s attention. The Court held that the adjudicator made a palpable and overriding error of fact that the review adjudicator and re-review adjudicator failed to correct. The Court substituted its own decision on the merits of the claim rather than remitting the matter to be redetermined, finding in favour of the claimant.

Fontaine v Canada, 2016 ONSC 4328: The Ontario Superior Court of Justice revisited “the bedevilling problems of documentary disclosure for the [Independent Assessment Process] claims for the St. Anne’s Indian Residential School and for Bishop Horden Indian Residential School”. The Court found that the request for directions in this case was aimed at having the court order a new hearing for one of the claimants based on a revised record, and re-open many if not all claims for St. Anne’s and other residential schools. The Court also suggested that counsel for the claimant was attempting to use the request “as a public commission of inquiry about the integrity of the IAP process”. The Court granted the claimant confidentiality orders as preliminary relief but adjourned other preliminary matters raised by the claimant as the review process had not yet been exhausted for his claim.

Fontaine v Canada, 2016 BCSC 1306: The British Columbia Supreme Court addressed a request for directions from the Merchant Law Group (MLG), which sought to retain a portion of a client’s award under the Independent Assessment Process to apply to outstanding accounts for other unrelated matters. An agreement between MLG and the client for application of a portion of the award to other accounts was held to violate the settlement agreement, as were the client’s direction that MLG do so. The request was dismissed and MLG was ordered to pay its client the withheld amount forthwith.

Child and Family Services –

Children’s Aid Society of Ottawa v LF, 2016 ONSC 4044: The Ontario Superior Court of Justice allowed a motion to set aside the dismissal of an appeal in this matter for delay. The underlying appeal involves a constitutional challenge to statutory definitions in the Child and Family Services Act that limit special considerations for Aboriginal children to a subset of those children that would qualify as Aboriginal under s 35 of the Constitution Act, 1982. The appellants were given until July 15 to perfect their appeal.

Saskatchewan v Saskatoon Tribal Council Health & Family Services Inc, 2016 SKQB 236: The Saskatchewan Court of Queen’s Bench addressed an application seeking various interim orders to allow the Saskatchewan government to reassert control over child and family services on reserve for First Nations represented by the Saskatoon Tribal Council. In the underlying action, Saskatchewan seeks a declaration that it lawfully terminated an agreement delegating ministerial authority under the Child and Family Services Act to the Saskatoon Tribal Council agency. The Court granted Saskatchewan the interim relief it sought, including injunctive relief preventing the agency from interfering with Saskatchewan’s provision of child and family services on reserve or providing those services itself.