Tag Archives: Metis

R v McCargar, 2020 ONSC 5464

Posted on by
Reply

The Court sentenced an Indigenous woman to a conditional sentence of 24 months followed by a 12 month period of probation for robbery, with conditions including culturally based programmes described in her Gladue report. While her co-accused was sentenced to 10.5 months in prison, the offender’s rehabilitation path, less concerning criminal record, and Gladue factors distinguished her circumstances. 

Indigenous Law Centre – CaseWatch Blog

The offender, Ms. McCargar, was found guilty after a trial on one count of robbery. She participated in a robbery of fentanyl patches from a 67-year old victim that had been prescribed this medication for pain. The victim was living alone in a rural area when Ms. McCargar and another offender came to the house in order to rob him.

Ms. McCargar is the mother of 4 children and a grandmother. She currently works full-time hours at a funeral home and volunteers 15 hours per week at a senior’s centre. The offender comes from a disadvantaged background. Her father was alcoholic and abusive who subjected his family to significant trauma. Ms. McCargar also suffered significant abuse and has endured a number of additional traumas as an adult. She has managed to rehabilitate herself from drug addiction and no longer uses alcohol. Currently Ms. McCargar is not in a relationship and lives with two of her children, including one that requires a great deal of assistance.

Ms. McCargar is Metis and did not have the benefit of growing up in her culture, but because of the colour of her skin, she has faced racism. For some time, the offender has been seeking the knowledge, insight and support her culture can bring. She has maintained contact with the Mohawk community in Tyendinaga. Her father taught her to hunt, trap and fish, and she has maintained these practices. Ms. McCargar has a criminal record which involves a number of property offences and includes convictions for assault. The Gladue report and PSR suggest, however, that some of these convictions occurred in the context of domestic relationships where the offender was physically abused by her partner.

According to this Court, the protection of the public is achieved with a conditional sentence, which is best suited to permit the offender to maintain the significant progress she has made towards her rehabilitation and strengthen her supports within her cultural community. Since the offences, Ms. McCargar has led a productive life. Most critically, there is a duty to give meaningful effect to the Gladue principles in this case, and the considerable evidence of the impacts of those factors on the offender. It is appropriate in this case to apply restraint in sentencing to reflect the circumstances that led to this offence and which reduce her moral blameworthiness.

Despite that her co-accused received a sentence of 10.5 months, there are important differences between the offenders in this case. Since Ms. McCargar’s sentence will be served as a conditional sentence with terms of house arrest, the range of sentence is appropriately higher than if a jail sentence were imposed (R v Sharma, 2020 ONCA 478). This means that if the offender is not compliant with the terms of the conditional sentence, she might serve an even longer period of time in jail should she breach the terms of the conditional sentence order. This serves to reinforce the principles of denunciation and deterrence.

Ultimately, in order to give effect to all of the principles of sentencing in this case, the term of the conditional sentence is fixed at 24 months. The first 12 months will be under house arrest, with exceptions for employment and certain other circumstances. During the conditional sentence, Ms. McCargar shall attend for all treatment and counselling that might be deemed appropriate for her by her supervisor, including those programmes described in the Gladue report. This will be followed by a period of probation for 12 months during which time Ms. McCargar is to continue with the culturally based programmes outlined in the Gladue report.

Canadian Natural Resources Limited v Elizabeth Métis Settlement, 2020 ABQB 210

Posted on by
Reply

Application allowed. A Métis community’s Property Tax Bylaw is quashed as it is unlawfully enacted and unreasonable in substance.

Indigenous Law Centre
Indigenous CaseWatch Blog

Elizabeth Métis Settlement [“Elizabeth”] is a small Métis community on the eastern edge of Alberta. In 2019, Elizabeth levied property taxes amounting to 187% of assessed land value on four natural resource companies whose lands comprise virtually its entire taxable base. Elizabeth explained that its unusual procedures in enacting it were justified by a looming financial emergency, and that the context of Alberta’s Métis settlements uniquely informs the question of what constitutes a reasonable rate of taxation in this situation.

In 1984, a movement began towards securing lands to support Métis communities in Alberta attaining self-governance. This consultation ultimately led to the Alberta-Métis Settlements Accord in 1989. This framework agreement and related legislation created eight Métis settlement [“Métis Settlements”] and granted fee simple title to those lands to the Métis Settlements General Council [“MSGC”]. This process also led to the incorporation of the Métis people in the Constitution of Alberta Amendment Act, which recognized that the Métis people were to gain self-governance, and protected their land base with the specific stated aim of preserving and enhancing Métis culture and identity. The Métis Settlements Act [“MSA”], was brought into force to provide a structure of delegated authority by which these communities could govern themselves individually, and collectively through the MSGC.

The top level of Métis governance established by the MSA is the MSGC. This umbrella body creates policies from which each of the Settlements derive sub-delegated authority to run their own communities. The individual Métis Settlements, in practice, operate at a quasi-municipal level. While their existence has a deeper social, cultural and historical underpinning than ordinary municipal corporations, they perform many of the same functions of a local municipal government common to municipalities across the province. Similar to municipalities, the sole source of tax revenue for the Settlements is through property taxation. Due to the structure of land holding on the Settlements, however, Elizabeth appears to have only four taxpayers, including the Applicants in this case.

Métis Settlements first gained independent taxation powers in 1997. Prior to that, any taxation was subject to direct ministerial approval. MSGC policy defines the parameters of Settlement taxation powers and the process for property assessment. Each Settlement in turn is left to pass its own property tax bylaw. In 1997, the MSGC enacted a tax policy to establish a fair, orderly, and equitable system by which those who use land in a Settlement area for business purposes can be required to contribute a fair share, based on valuation or agreement, to the cost of maintaining a viable Métis community in the Settlement area. The 1997 policy permitted Settlements to make annual business property contribution bylaws, and levy property tax based on the deemed value of land holdings, with a cap tax rate.

In 2019, the basis and structure of property taxation within the Métis Settlements changed fundamentally. The MSGC revoked the 1997 policy and replaced it with a new instrument called the Métis Settlements General Council Property Taxation Policy 2018 [“Tax Policy”]. There was no cap identified on Settlement property tax rates and no mention of “fair, orderly, and equitable” contributions being required by businesses operating on Settlement lands. The Tax Policy specified a new formula by which the tax rate was to be calculated. It is based on dividing its total budget by the value of its assessed taxable base. Each Settlement was to determine its tax rate by dividing its budget by the total value of its tax base.

The net result of the Amended Budget, by operation of the formula was to increase the total property tax bill levied against the four Applicants from $624,692.44 to $25,000,733. In short, it increased the Applicants’ property tax bills 40-fold. This additional $24.4 million from the Applicant taxpayers was allocated to repair or replace virtually all infrastructure at the Elizabeth Settlement, including $75,000 in repairs and renovations to each and every residence in the community.

There is no evidence that Elizabeth considered the economic impact or viability of this rate of taxation. This includes a complete absence of discussion on whether taxes in this amount could possibly be paid, and what the economic and legal impact on the subject landowners would be. The Applicants were never given an opportunity to provide an economic analysis of the impact of this level of taxation on their operations and their ability to continue owning their land interests in Elizabeth. The Supreme Court of Canada has repeatedly affirmed the common law right of citizens to seek judicial review of municipal bylaws taxing their property (Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2).

Métis Settlements are not completely analogous to municipal governments. They may well be afforded different and greater range in decision-making that touches upon the core animating values that underlie their existence, namely the preservation and promotion of Métis culture and society. That said, when Settlements levy property tax, they perform a function virtually indistinguishable from municipal governments, and derive their authority to do so through a similar process of sub-delegation. Moreover, the power they exercise in this capacity is no less impactful on the people against whom it is used.

Even if the Property Tax Bylaw was upheld in the face of its procedural defects, it is substantively unreasonable and must be quashed on that basis. Although unreasonable, it did not come about in a vacuum. The evidence in this case also showed that Elizabeth’s infrastructure need is very real, and that the stated aim of creating self-sufficient Métis communities has been thwarted by chronic capital underfunding.

The Court finds the impugned Property Tax Bylaw is the product of Métis frustration with the failure to achieve this objective. Ironically, the lack of adequate capital funding for Métis Settlements, or a viable model for the Settlements to raise capital funds through economic benefits derived on their territory, has driven Elizabeth to enact a measure that would severely, if not fatally, impair its ability to attract the investment it needs to develop a viable tax base in the future.

R v Colligan, 2020 BCSC 1139

Posted on by
Reply

Rehabilitation can be critically important even for an offence where denunciation and deterrence warrant the most weight. Despite some aggravating circumstances, the Court decided that a conditional sentence was appropriate after considering Gladue factors.

Indigenous Law Centre CaseWatch Blog

Mr. Colligan was charged with three counts of trafficking cocaine but did not appear in court for his trial. A warrant was issued and executed for his arrest. He entered guilty pleas and was then released on bail, by consent. Currently, Mr. Colligan has completely turned his life around. That is commendable but the fact that he did so while on the lam presents a challenge at the sentencing stage. As well, the illicit sale of cocaine, particularly by way of dial-a-dope operations, takes a terrible toll on individuals and the community.

This Court has the benefit of a detailed and thoughtfully prepared Gladue report. Mr. Colligan self-identifies as Métis. His childhood was marred by trauma and instability. His mother was apprehended for neglect, and became involved with his father when she was a teenager. Mr. Colligan’s father was a drug-addicted member of the Hell’s Angels. He was emotionally, physically and sexually abusive to his mother. Mr. Colligan’s mother became an alcoholic. Mr. Colligan witnessed his father’s abuse of his mother, which culminated in a horrifying attack when he was five years old. He jumped on his father during the attack and ended up being covered in his mother’s blood. His father was charged with attempted murder and fled.

Following her separation from a second partner, Mr. Colligan’s mother reached out to social services for help, hoping it would be temporary. Mr. Colligan was removed from his mother’s care and placed in a series of private foster homes and group homes until he aged out of foster care. Mr. Colligan grew up feeling abandoned by his mother. He himself has had children from different partners, whom he does not have a relationship with.

While on the lam, Mr. Colligan had accumulated an unenviable criminal record consisting of seven youth and 15 adult convictions. However, he broke away from all negative associations when he developed a healthy relationship with his current partner, who now have two young children. Mr. Colligan began attending NA and AA meetings. He found employment in the oil industry and has been steadily employed since that time. As of the date of the sentencing hearing, he was working as a well site supervisor with a production testing company and had an annual income of $180,000. He is the sole income earner for his family. He works in a drug-free environment and is subject to mandatory drug testing. After some initial set-backs, with the support of his family, NA, AA and some counselling funded by his employee assistance program, Mr. Colligan has been clean and sober for a number of years.Mr. Colligan’s self-reports of his changed lifestyle are supported by a number of letters of support from his partner, friends and co-workers.

Mr. Colligan is disconnected from his Métis heritage. That was the goal of Canada’s historic assimilationist policies. Looking forward, Mr. Colligan hopes to connect with his Métis heritage. He has applied for a Métis citizenship card. He hopes that understanding more about his heritage and culture will help him to build his self-esteem, re-instate his value system and continue to lead a pro-social life.

In this case there are a number of aggravating factors. Mr. Colligan has a significant prior record, including convictions for possession for the purpose of trafficking. Mr. Colligan committed the offences at issue shortly after completing his 14-month custodial sentence for his prior trafficking convictions. He was a principal participant in an active and ongoing dial-a-dope operation, that demonstrates a level of sophistication in the operation. As well, Mr. Colligan evaded justice for almost six years.

The case law clearly establishes that denunciation and deterrence are the primary sentencing principles in a case such as this. A fit sentence must recognize the particularly harmful effects of trafficking cocaine by way of dial-a-dope operations and discourage flight from justice. At the same time, the Court must not lose sight of the importance of rehabilitation in providing for the long-term protection of the community. Canada’s assimilation policies have had a profoundly negative effect on Mr. Colligan and his family. As a result, Mr. Colligan developed a drug addiction that led directly to his past criminal lifestyle. He has overcome many hurdles and barriers to completely turn his life around and is now taking responsibility for his actions.

While Mr. Colligan must be punished for his offences and not rewarded for absconding, he is in the process of breaking the cycle of intergenerational trauma and dysfunction that has so negatively affected so many Indigenous families, including his own. Sending Mr. Colligan to jail would leave his children without their father for a significant period of time and vulnerable to poverty and dislocation. A highly restrictive conditional sentence is ordered of two years less one day and will adequately address denunciation and deterrence, particularly in view of Mr. Colligan’s reduced level of moral blameworthiness.

JE and KE v Children’s Aid Society of the Niagara Region, 2020 ONSC 4239

Posted on by
Reply

Application for judicial review allowed. The Board’s conclusion to deny adoption by the Applicants was unreasonable. The best interests of the Child, who is identified as Métis, require that she not be uprooted from the only family she has ever known.

Indigenous Law Centre
Indigenous CaseWatch Blog

This is a successful application for judicial review from the Child and Family Services Review Board in Ontario [“Board”]. The three year old child in question [“Child”], upon her birth, was apprehended almost immediately by the Children’s Aid Society of the Niagara Region [“the Society”] and she was placed with approved foster parents, KE and JE [“the Applicants”]. KE and JE applied to the Society to adopt the child. DC-G and MG [“the Respondents”] also applied to adopt the Child. Neither family had any biological relationship to the Child although DC-G and MG had previously adopted two of the biological mother’s seven children by different fathers.

The Society’s investigation of the biological father raised the possibility that his paternal grandmother had been associated with Québec Métis. On further enquiry, the paternal grandmother advised the Society that she believed her father had “Indian blood” but this had never been confirmed and her parents were dead.

The Society approved the application of JE and KE and declined the application of DC-G and MG. The Society regarded the continuity of care and averting the risk of harm from disruption by moving the Child to another family, when there were no care-based reasons for doing so, as the dominant and overriding considerations in this case. DC-G and MG brought proceedings before the Board seeking to review the Society’s decision. The Board reversed the Society’s decision and directed the Society to place the child for adoption with DC-G and MG.

The Applicants are white, live in Ontario and are members of a Mennonite Brethren church community. The Respondents are also white, live in Ontario and are members of the Roman Catholic church. Neither faith has a particularly open or positive attitude toward LGBTQ issues, although both sets of parents applying to adopt the Child were clear that they would love and support the Child regardless of her eventual sexual or gender preferences.

It is obvious, given the evidence, that the Child would, as submitted by the Society, wish to remain with the only parents and family she had ever known rather than be uprooted and sent to live with strangers. While the weight to be given to this view would have been up to the Board, it was unreasonable not to consider the Child’s view at all. There was uncontested evidence before the Board that the Child had, over the course of three years living with the Applicants, developed a strong bond with the Applicants, their seven year-old son and the Applicants’ extended family. It was also uncontested that the Child had never met, or knew of the existence of, the Respondents or their adopted children. The Respondents suggested an openness to maintaining a relationship with the foster sibling, but there was evidence of openness on the Applicants part to maintain a relationship with the Child’s half-siblings also, which was not considered.

The Board belittled the Applicants’ efforts to learn about Métis culture as doing the “bare minimum,” but ignored the fact that the Respondents, on the evidence, had done effectively nothing prior to the hearing to learn anything about Métis traditions. In contrast, the Board relied exclusively on the Respondents’ prior involvement with Algonquin culture regarding one of their already adopted children. But, the burden of the Act is to recognize the distinct heritage and culture of Aboriginal peoples. First Nations, Inuit and Métis people are distinct peoples and the Board’s decision failed to recognize this (LE v Simcoe Muskoka Child Youth and Family Services (CFSYA s 192), 2019 CFSRB 86). As well, the Respondents’ education and adoption of Algonquin culture appears to have been developed over time after they had adopted their Algonquin-affiliated child. The Board, in taking the approach it did, held the Applicants to a standard that, by its own terms, was not met by the Respondents.

This Court found that the Board put too much emphasis on one couple’s past support of an Algonquin child that they had adopted. This was seen as “super-weighting” the relevance of Indigenous identity to adoption, which the Court found to be an inappropriate interpretation of Ontario’s current legislation (amended in 2017). It also bears emphasizing, given the Board’s approach to this case, that these mandatory and discretionary factors are not just abstract concepts; the extent of their applicability in a particular case must be rooted in an assessment of the evidence. They also noted that this was relatively unrelated to the alleged Quebec Métis heritage of the Child since the new legislation requires a distinction-based approach.

Cunningham v Alberta (Métis Settlements Land Registrar), 2020 ABQB 301

Posted on by
Reply

Appeal dismissed. The Métis Settlements Act establishes membership requirements for the purpose for establishing a Métis land base. Although unfortunate, the appellant is not eligible to have Indian status and be a member of his Métis Settlement.

Indigenous Law Centre CaseWatch Blog

Mr. Cunningham spent almost his entire life on the Peavine Métis Settlement, including having a home and raising a family. However, he applied for Indian status in 1988. Although regretting the decision, he was unable to get his Indian status revoked. Mr. Cunningham has requested a judicial review of a 2018 decision of the Registrar of the Métis Settlements Land Registry [“Registrar’s Decision”].

The reasons for this decision is the conflict of Mr. Cunningham’s Indian status membership made 27 years ago. The Registrar did confirm that when the Peavine Métis Settlement approved Mr. Cunningham’s application for membership in 1991, the council acted contrary to s 78(2)(c) of the Métis Settlements Actbecause Mr. Cunningham was ineligible to become a member under s 75.

The Métis Settlement Act establishes membership requirements for Métis Settlements for the purpose of establishing a Métis land base, as reflected in the Membership List maintained and updated by the Registrar. The legislation was held to be constitutional by the Supreme Court of Canada (Alberta (AAND) v Cunningham, [2011] 2 SCR 670). The Métis Settlements Act does not does not establish eligibility or membership criteria for other purposes (L’Hirondelle v Alberta (Minister of Sustainable Resource Development), 2013 ABCA 12).

The problem is that the different existing legislative schemes exclude an Indian, except for certain exceptions which are not applicable to Mr. Cunningham, from membership in a Métis settlement (Gift Lake Métis Settlement v Alberta (Aboriginal Relations), 2019 ABCA 134). The Registrar is neither required to address each and every piece of evidence nor to address each and every aspect of Mr. Cunningham’s history and relationship with the Peavine Métis Settlement.

As for the 27 years from when Mr. Cunningham applied for Indian status to the 2018 Registrar’s Decision, if the doctrine of laches applied in this matter, the previous error in the 1991 Registrar’s Decision would be perpetuated into the future and the administrative error would override the will of the legislature in the Métis Settlements Act. As long as a statute is in effect, it is no defence that it has not been enforced or correctly applied for many years (Château-Gai Wines Ltd v Institut national des appellations d’origine des vins, [1975] 1 SCR 190).

Manitoba Metis Federation Inc v Brian Pallister et al, 2020 MBQB 49

Posted on by
Reply

Application for judicial review dismissed. The honour of the Crown does not entitle the Manitoba Métis Federation to any special procedural rights in relation to a Lieutenant Governor in Council’s policy decision in the circumstances of this case.

Indigenous Law Centre – CaseWatch Blog

This is an application for judicial review of the Lieutenant Governor in Council’s [“Cabinet”] decision to issue an Order in Council [“OIC”]. The Manitoba Métis Federation Inc [“MMF”] reasons for this application are that fundamental legal and constitutional issues and principles are at risk, including the honour of the Crown. The MMF contends that this is a case of first instance that is of significant importance to the MMF, Manitoba’s Crown corporations, as well as all Indigenous Peoples in Manitoba.

The OIC authorized the Minister of Crown Services to issue “A Directive to Manitoba Hydro Electric Board Respecting Agreements with Indigenous Groups and Communities” [“Directive”]. The Directive purports to seek to align the Government of Manitoba’s policies with the Manitoba Hydro Electric Board’s [“Hydro”] practices regarding all relationship and benefit agreements with Indigenous communities. It requires that any such agreements, including those being developed, either obtain ministerial approval or provide legally required mitigation or compensation measures that address thoroughly defined impacts.

The Court has determined that the honour of the Crown does not apply to the Directive. The Directive requires that relationship and benefit agreements with Indigenous groups provide legally required mitigation or compensation that will address thoroughly defined adverse impacts. If such is not provided, ministerial approval is needed. The Directive in question is a lawful exercise of Cabinet’s power to enforce its stewardship role over Hydro. The Cabinet’s authorization of the Directive and its involvement in, or effect on, the MMF’s negotiations with Hydro, does not engage or trigger the honour of the Crown and by extension, any of the duties that flow therefrom.

The Directive is a lawful and reasonable exercise of Cabinet’s statutory power to enforce its stewardship role over Hydro. Cabinet’s authorization of the Directive and any consequent involvement in or effect on the MMF’s negotiations with Hydro, do not engage the honour of the Crown. Neither the honour of the Crown nor the common law entitled the MMF to any special procedural rights in relation to a Cabinet policy decision in the circumstances of this case.

Beaucage v Métis Nation of Ontario, 2020 ONSC 483

Posted on by
Reply

Motions dismissed. Canada has entered into a recent agreement with the Métis Nation of Ontario that brings closer the recognition of it as a government entity. However, this agreement does not retroactively apply to a past decision on membership, nor does the agreement subject it to public law remedies while it was still considered a private law entity.

Indigenous Law Centre
Indigenous CaseWatch Blog

The applicant asks for a review of a decision that quashed his application for judicial review. In 2017, he was denied membership in the Métis Nation of Ontario [“MNO”]. He sought judicial review of that decision. The motion judge determined that MNO is a private voluntary organization incorporated without share capital under the Corporations Act. While MNO aspires to be recognized as a government with public law responsibilities to its citizens in Ontario, “that objective has not yet been achieved.”

The motion for fresh evidence concerns the Métis Government Recognition and Self-Government Agreement between MNO and Canada [“2019 Agreement”] that did not exist at the time of the hearing that quashed his application for judicial review. Parties are in agreement that admitting fresh evidence on appeals applies to this motion (Palmer v R, [1980] 1 SCR 759). But because this agreement did not exist at the time of the 2017 hearing, the only question is whether the 2019 Agreement would have likely affected that result.

For the 2019 Agreement to have affected the result, either: 1) it must be seen as confirming that in 2017 MNO was already a government; or 2) the entry into the 2019 Agreement must be seen to have made a change to the status of MNO that retroactively applies to the impugned decision. Neither argument can succeed. The fact that MNO was closer to being a government, but had still not yet arrived at formal recognition could not have affected that outcome. If, on the other hand, the 2019 Agreement made a substantial change in 2019 such that MNO is now a government, there is still not basis that the 2019 Agreement has a retroactive effect on the 2017 decision concerning the applicant.

It is inconsistent for the court to find that MNO is subject to the burden of judicial review under the public law as it if were already a government, while MNO is denied the benefits of governmental recognition under Canadian law. It would be invasive and disrespectful for the public law to subject the MNO to judicial review as if it were a government while at the same time denying recognition of such status.

 

Johnson v Fishing Lake Métis Settlement, 2020 ABCA 17

Posted on by
Reply

Application denied. The stringent test for seeking advance costs in public-interest litigation was not met.

Indigenous Law Centre
Indigenous CaseWatch Blog

The applicants are not Métis, but have lived their entire lives on the land of an estate that was given to a Métis land trustee. They wish to appeal the Fishing Lake Métis Settlement Council’s decision that was confirmed by the Metis Settlements Appeal Tribunal.

The principle in advance-costs cases normally involves the unsuccessful party in an action being ordered to pay all or part of the successful party’s costs. They are adverse in interest in specific court proceedings. Advance-costs order may only be granted against a person who is adverse in interest to the applicant in the proceedings to which the applicant is a party. Such an order cannot be made against the Métis Settlement General Council and the Registrar. The Fishing Lake Métis Settlement and the applicants are adverse in interest and may be the subject of an advanced-cost order. This order, however, should be made only in exceptional circumstances and as a last resort. There is a stringent test with three aspects for an order of advanced costs, but even if they are met, it is still in the Court’s discretion to grant it: 1) the party genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial; 2) the claim to be adjudicated is prima facie meritorious; and 3) the issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases (British Columbia v Okanagan Indian Band, [2004] 1 CNLR 7; Little Sisters Book and Art Emporium v Canada, [2000] 2 SCR 1120).

Applications for advance-costs orders should not become routine applications. Legislators, and not judges, should, as a rule, decide how to spend public monies. At its heart, this case concerns trusteeship for one individual plot of land and presents no issues of special significance to the community.

 

Beaucage v Métis Nation of Ontario, 2019 ONSC 633

Posted on by
Reply

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.

Corneau v AG of Québec, 2018 QCCA 1172

Posted on by
Reply

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The test set out in R v Powley for Métis rights requires that a Métis community’s distinct nature be sought out, but does not require that the underlying practices and traditions be distinct.

This case involved an application brought against Mr. Corneau, and other alleged offenders, for occupying sites on public lands without any property right, lease or occupancy permit contrary to s.54 of The Act Respecting the Lands in the Domain of the State (“the Act”). Mr. Courneau contested the application on the basis that he belongs to a Métis community which confers rights to occupy the alleged public lands. It was held at trial that Mr. Corneau did not meet the requirements of the test set out in R v Powley for Métis rights. Mr. Corneau has appealed the decision, calling into question the trial court’s assessment of: (i) the evidence following the identification of the historic Métis community; (ii) the existence of a modern community; (iii) the appellants’ membership in the modern community and (iv) the period of control. In the end, the Québec Court of Appeal (“the Court”) dismissed the appeals and ordered that Mr. Corneau abandon the sites and return the premises to their former condition.

The Court began by reviewing the R v Powley decision, which clarified the test for identifying a Métis community’s rights. It first began by observing that the term Métis is not a matter of genetics, but rather of culture and identity. As articulated by the Supreme Court of Canada (“SCC”), the term Métis “does not encompass all individuals with mixed Indian and European heritage; rather it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life and recognizable group identity”. Furthermore, a Métis community are “a group of Métis, with a distinctive collective identity, living together in the same geographic area.” The Court then identified the constitutionally protected Métis rights as those rights subsisting in Métis communities that emerged between first contact and the effective imposition of European control. The focus therefore is on rights that existed “post-contact”, for example after a particular Métis community arose, but also “pre-control”, or before it came under the effective control of European laws and customs.

The Court then reviewed the factual matrix as presented by the trial court. The trial court found the evidence adduced by the appellants to be insufficient to establish an identifiable historic Métis community that would allow mixed individuals to be distinguished from their biological authors. This was decided after consideration of the evidence presented by historians, genealogists and anthropologists. It was also the opinion of the trial judge that even if there was a historic community of Métis tied to the land in question, there was no modern community holding the right being claimed. Finally, in consideration of the personal circumstances of Mr. Corneau, the trial judge found the evidence of self-identification with a Métis community unconvincing. The trial court observed that: (1) Mr. Corneau’s self-identification occurred later in life and was driven by opportunism; (2) that his ancestral connection did not, on the balance of probabilities, belong to an historic Métis community; and that (3) the absence of a cultural tie between the Métis organizations and his ancestral Métis community suggest that there is not, on the balance of probabilities, sufficient evidence of the existence of the right claimed.

The Court then set out the standard of review as requiring a palpable and overriding error standard for questions of mixed fact and law. It noted that, as per R v Van der Peet, courts must not undervalue the evidence of Aboriginal claimants simply because there is no evidence conforming to the evidentiary standards of other areas of law, such as a private law torts case. It also cited Mitchell v MRN, which highlighted that while Aboriginal claims must still be established on the basis of persuasive evidence, their forms of evidence must also be afforded equal and due treatment.

In respect of issue (i) and (ii), the Court agreed with the trial court that there was no historic Métis community, but upheld the appellants’ contention that the trial court applied the test too strictly. The Court observed that the test, as applied by the trial court, takes for granted that the practise and traditions of the community in question must be distinct, while the SCC only required that the distinctive nature be sought out. Nonetheless, this error is not determinative, as it does not change the conclusion of the Court that there was no historic community holding rights to be claimed. Specifically, the Court agreed that the appellants’ expert witnesses failed to meaningfully question the evidence of historian Russel Bouchard. Evidence from Bouchard was relied on to build the claim that the individuals from mixed marriages between Euro-Canadians and Indians defended their diversity as a cultural and identity marker. The respondents, however, presented evidence suggesting that such marriages did not result in a distinct community, but rather integration into the already established Montagnais community and later into Euro Canada. In the end, the practices or traditions must also be proved. While the Court does not directly address the issues of whether there exists a modern Métis community, they are not required to as they have concluded that no historic community existed.

In respect of issue (iii), the Court held that the trial court erred in their comparison of the historic Métis community of Sault Ste Marie with the alleged historic Métis community of Domaine du Roy and Mingan Seignory. In particular, the Court held that the trial court’s strict application of the factors of density and proximity is inappropriate. As stated by the Court, “it is possible to imagine that members of a historic community could settle in several separate locations while forming a single regional unit.”  An historic community can be regional and nomadic.

In respect of issue (iv) the Court agreed with the trial court’s contention that control over the territory in question occurred between 1842 and 1850. Both the appellants and the respondents contest this finding. The appellants argued that the correct time period ought to be after 1856 when Aboriginal people were displaced following the creation of reserves, relying on primitive land surveys between 1843 and 1860, indicated in the installation of a municipal regime and administration of justice, to support this position. The Court found, however, that they failed to submit sufficient evidence to illustrate a palpable and overriding error on the part of the trial court.

The respondents argued that the trial court erred in analyzing the evidence based on the legal criterion for control. The Court dismissed this position on the basis that the expert evidence relied on by the respondents mis-categorized the Domaine du Roi territory as one governed by the seigneurial land grant system, under which control was established between 1733 and 1767. Under cross-examination it was revealed that no primary or secondary sources refer to Domaine du Roi as a secondary estate. Instead, the Domaine du Roi was preserved for the fur trade and no land grants were offered in respect of it and ended in 1842 when the government included a condition in a renewed lease of the Hudson’s Bay Company that the government could have the land surveyed and could settle colonists in any part of the Domaine suitable for agricultural colonization. Thus, the Court found that the evidence supported the approach taken by the trial court.