Tag Archives: Nunavut

Baffinland Iron Mines Corporation v Inuavak et al, 2021 NUCJ 11

Posted on by
Reply

Interlocutory injunction granted. The RCMP have been authorized to enforce an injunction against community protestors, including removing and detaining to the extent necessary, persons who have knowledge of the injunction, and are obstructing or impeding access to the mine site. The mining corporation has approval for its operations and has complied with the necessary requirements under The Nunavut Land Claims Agreement and with any regulatory and legislative requirements.

Indigenous Law Centre
Indigenous CaseWatch Blog

Baffinland Iron Mines Corporation [“BIM”] is granted an injunction prohibiting the Defendants, and others, from blockading or obstructing its mining operations at the Mary River site on northern Baffin Island. To get to this mine site, it is a fly in and out with an airstrip. Iron ore is mined and crushed at the mine site, and then trucked to where it can be loaded on to ships at Milne Port, and shipped out during open water season. The mine site and the port are connected by a road approximately 100 km long. The airstrip and accommodation for most of the employees is at the mine site but with some at Milne Port. Shipping of iron ore can occur only during the open water season. However, during the rest of the year iron ore is still trucked to Milne Port and is stockpiled to await the shipping season.

BIM has applied to significantly expand its operations at the mine. It is unknown if the application will be approved or not. The current approvals for the mine are controversial and there are strongly held views and opinions on all sides. The north Baffin communities of Pond Inlet, Arctic Bay, Clyde River, Igloolik, and Sanirajuk are the communities closest to and most affected by the mining operations. Residents from the local communities set up protests at the BIM site. Although these protests were not large, a camp was set up on the runway and road, approximately 3-4 km from the mine site. Although there were approximately 5 protesters at the mine site and 2 on the road, it prevented the plane to land normally at the airstrip and iron ore could not be trucked from the mine site to the port. The protest shut down mining operations and stopped the movement of people and supplies to and from the mine.

Counsel for three of the Defendants appeared in court. At that time the concern of the was the 700 employees at the project site and if they were unable to leave due to the blockade on the airstrip. The Defendants were not opposed to the departure of the employees that were on site. An interim order was issued to ensure that occurred. A short time later the Defendants left the project site and carried on to their respective communities. However, the Plaintiff maintained its application for an interlocutory injunction and brought an action against the Defendants for trespass, unlawful interference with economic interests, and mischief.

The Defendants asserted their Aboriginal rights pursuant to s 35 of the Constitution Act, 1982. They submit that injunctive relief is no longer required as the Defendants have left the project site. The test for injunctive relief have three factors that the court must consider: 1) is there a serious issue to be tried; 2) will irreparable harm result if the relief is not granted; and 3) where does the balance of convenience lie (RJR MacDonald Inc v Canada (AG), [1994] 1 SCR 311).

The Plaintiff’s legal action is a serious issue to be tried. The Defendants’ argument that the need for injunctive relief has lapsed because the protesters have left the project site. While this may be true, their counsel was not able to confirm that they have agreed to not return and continue the protest. As well, counsel is only for three Defendants of the seven protestors. The protest and its reasons have been the topic of discussion in the media. There may be more than one reason for the protest, and individual protesters are there for different reasons.

In response to the protest, Inuit leadership reached out to the Defendants to arrange meetings to reach a resolution. The Defendants have agreed to the meetings, but not much more is known at this junction. The business operations that are at risk continue as a going concern and the protesters’ concerns remain unresolved. Although the protesters may no longer be at the project site, their reasons for being there in the first place remain. As for the s 35 Aboriginal rights argument, asserted Aboriginal rights are rights that are asserted but not yet proven. This is not the Nunavut context. The Nunavut Land Claims Agreement [“NLCA”] is a modern treaty that encompasses the largest land claims settlement in Canada. The processes for resource development are set out in the Agreement. The Plaintiff has complied with the necessary requirements under the NLCA and any regulatory and legislative requirements.

The Plaintiff has loss of revenue because of the inability to transport iron ore from the mine site to the port. The court stated that the complete blockade of a lawful business strongly suggests irreparable harm for the purposes of an injunction (Hudson Bay Mining & Smelting Co Limited v Dumas et al, 2014 MBCA 6). The balance of convenience favours the granting of injunctive relief.

R v Kolola, 2020 NUCJ 38

Posted on by
Reply

In sentencing an Inuit offender, the Court sought to meet the purpose and objectives of sentencing through consideration of the unique circumstances of this case, including competing sentencing principles, Gladue factors, and the frequency of violence against sleeping and unconscious women in Nunavut.

Indigenous Law Centre
Indigenous CaseWatch Blog

This case deals with the sentencing of Mr. Kolola, an Inuit offender who committed sexual assault on a sleeping female victim. The Court sought out to ensure that the sentence imposed was fit to the offender and the crime. Given that Mr. Kolola is an Inuit offender, the Court accounted for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit people, articulated through Gladue factors.

The aggravating factors included Mr. Kolola’s criminal record, which demonstrated a pattern of violence against women through multiple convictions for serious intimate partner violence. The nature of Mr. Kolola’s sexual assault was quite predatory, as he assaulted the victim while she was asleep and in her own home. It was also noted by the Court that this assault seemed to be premeditated as he sought out his particular victim. There are several mitigating factors including Mr. Kolola’s Gladue factors which revealed his unfavourable childhood riddled with addiction and abuse, and his tangible efforts at rehabilitation through his continued sobriety.

The Court also took into account that sexual offenses involving sleeping women in Nunavut are unfortunately a common occurrence. As a result, there is widespread perception that the Court minimises the nature and severity of sexual violence. Therefore, the Court sought to impose a sentence in which sought to repair this distrust and fear of the criminal justice system by victims of sexual violence, while also holding Mr. Kolola demonstrably responsible for his crime. Through consideration and application of these unique circumstances and the competing sentencing principles, the Court concluded by ordering that Mr. Kolola serve 30 months (900 days) in a federal penitentiary.

R v Angnatuk, 2020 QCCS 3650

Posted on by
Reply

The Court sentenced an Inuk man to life imprisonment and ordered him ineligible for parole for 18 years for the second-degree murder of his Inuk partner. His Gladue factors were considered in setting the period of ineligibility for parole but they were the only mitigating factor.

Indigenous Law Centre
Indigenous CaseWatch Blog

Jimmy Angnatuk, was found guilty by jury of the second degree murder of Elisabeth Novalinga. By law, Mr. Angnatuk faces a mandatory sentence of life imprisonment. Access to the appropriate tools and programs to address his issues is paramount, and that Mr. Angnatuk will take steps towards rehabilitation. Domestic violence, in an Indigenous context or not, is a scourge on society. Mr. Angnatuk is to be sentenced to life imprisonment without eligibility for parole for 18 years.

Mr. Angnatuk and Ms. Novalinga lived in Kuujjuarapik and were in a relationship. On the day of her murder, both consumed alcohol and had an argument. Later that evening, the police received an emergency call. They arrived at the house shortly after, where the accused remained on the premises, and told the officers that he had killed Ms. Novalinga. She was found deceased with multiple blunt force injuries and knife wounds on her body.

Ms. Novalinga’s two children are now left without a mother. Mr. Angnatuk murdered Ms. Novalinga while he was bound by an undertaking, and he has a pending case of assault causing bodily harm. He has a history of abuse against his partners and has multiple prior convictions for violent offences against his partners but also against strangers. He is impulsive and extremely dangerous, has not shown a real possibility of rehabilitation, and has been in and out of prison without it being a deterrent.

Fixing an extended period of parole ineligibility is a very fact-sensitive process (R v Shropshire, [1995] 4 SCR 227). Sentencing is an individualized process. The sanction must be adapted to the nature of the offence and the situation of the offender (R v Nasogaluak, [2010] 1 SCR 206). The Court has to weigh the objectives listed in s 718 of the Criminal Code and against the facts and the relevant aggravating or mitigating factors, consider the ranges of sentences for similar circumstances, as well as the needs of the community in which the offence occurred.

Although the Court did not have a contemporary pre-sentence report that could help assess his risk of reoffending, Mr. Angnatuk has, by his own admission, serious anger and emotional issues that have been left largely unaddressed over the years. Mr. Angnatuk mentioned to his Gladue Report Writer that he is aware that he has a lot of anger inside, and that he understands that he needs help with his feelings and his anger in order not to reoffend. He shows an interest for programs or counselling sessions tailored to Inuit or that are culturally relevant and in his own language or that offer traditional activities.

Ms. Novalinga was, as Mr. Angnatuk is, Inuk, and suffered a horrible fate at the hands of her partner, who prevented her from getting help in extricating herself from a violent situation because he did not want to go to jail. The aggravating factors are numerous in the present case. The Court also has to take into account Gladue factors in determining Mr. Angnatuk’s sentence. The Court analyzed the factors documented in the Gladue Report that pertain to Mr. Angnatuk, his family, the community of Kuujjuaq, and the lasting impact of assimilation policies on Inuit People. However, were it not for these elements, the Court would have found no substantive mitigating factor in Mr. Angnatuk’s favour.

R v Aklok, 2020 NUCJ 37

Posted on by
Reply

The Court accepted a joint submission on sentence of 45 days of imprisonment followed by nine months of probation for two counts of assault by an Inuk man against his Inuk intimate partner. While the Court found the test for departure from a joint submission had not been met, it expressed concerns with counsel’s failure to justify this lenient sentence, particularly given the prevalence of intimate partner violence in Nunavut.

Indigenous Law Centre
Indigenous CaseWatch Blog

Mr. Aklok is a 39-year-old Inuk from Kugluktuk. Mr. Aklok is a repeat offender with a criminal record that contains 13 entries between 2000 and 2012. Mr. Aklok was sentenced for assaulting his intimate partner according to the terms of a joint submission in which the Court found troubling. The joint recommendation was imposed because of the constraints from rejecting it (R v Anthony-Cook, 2016 SCC 43 [“Anthony-Cook”]).

Cases of alcohol-fueled intimate partner violence against Inuit women and girls consistently dominate the Court dockets across the Territory. Far too often, the same intimate partners in crisis are involved in cases before the Court, as in this matter.

There are Gladue factors that need to be taken into account in the sentencing, and in this context, the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit. Mr. Aklok experienced significant violence all through his childhood. His memories include as a young child watching his father beat up and choke his mother, leaving her bruised, swollen, and helpless on the floor. Mr. Aklok also experienced physical abuse from his father. He was often bullied and ostracised at school and has struggled to find housing and a full-time job and has spent time in homeless shelters.

The joint submission imposed by the Court was unduly lenient, and counsel failed to justify their leniency as the joint submission did nothing to help dispel the perception that the justice system devalues the lives of Inuit victims of crime. However, in Anthony-Cook, the Supreme Court of Canada established a “stringent” public interest test to guide front-line judges when they consider a “contentious” joint submission. Although troubled, the Court was bound to follow appellate direction, and impose the joint submission.

Inuit women, and all Nunavummiut, deserve a justice system that meaningfully addresses gendered violence. Earlier this year, gender-based intimate partner violence was addressed in a report released by Pauktuutit Inuit Women of Canada: “Gendered violence against Inuit women is a problem of massive proportions. Women in Nunavut are the victims of violent crime at a rate more than 13 times higher than the rate for women in Canada as a whole. The risk of women being sexually assaulted in Nunavut is 12 times greater than the provincial/territorial average. In 2016, Nunavut had the highest rate of female victims of police-reported family violence in Canada” (Addressing Gendered Violence against Inuit Women: A review of police policies and practices in Inuit Nunangat, Pauktuutit Inuit Women of Canada and Dr. Elizabeth Comack, January 31, 2020). There is a need and a role for Parliament to reopen debate on this vitally important aspect of the criminal justice system.

R v GH, 2020 NUCJ 21

Posted on by

The Chief Justice of the Nunavut Court of Justice dismissed an application for a state-funded Gladue report. The Court cautioned that a Gladue report writer from outside the territory may not be adequately familiar with Nunavut’s unique circumstances and resources, and Inuit court workers can provide much of the necessary information, as can the predominately Inuit probation officers working in Nunavut. The Court left it to the Government of Nunavut to determine whether a program for full Gladue reports ought to be created. 

Indigenous Law Centre
Indigenous CaseWatch Blog

The Applicant requests that the Court order the production of a Gladue report. He suggests that formal Gladue reports are necessary if this Court is to apply the remedial provisions of section 718.2(e) of the Criminal Code in the manner and spirit directed by the Supreme Court of Canada (R v Gladue, [1999] 2 CNLR 252 [“Gladue”]; R v Ipeelee, [2012] 2 CNLR 218).

In Canada, judges are required to consider the circumstances of Indigenous offenders who are before them to be sentenced. Indigenous offenders have the right (unless it is expressly waived) to the presentation of Gladue information and application of Gladue principles at their sentencing hearing. However, they do not have the right to the production of a publicly funded Gladue report in advance of sentencing.

In many jurisdictions across Canada there are Gladue programs in which independent and knowledgeable writers interview offenders and other community members, producing Gladue reports that educate sentencing judges. Nunavut is not one of those jurisdictions. To date, the Government of Nunavut has not implemented a program to connect Indigenous offenders with knowledgeable Gladue writers. Nothing formally prevents an offender in Nunavut from funding the production of a Gladue report privately, but this almost never occurs due to the associated cost.

Because Nunavut lacks a publicly funded Gladue writing program, Gladue information about Indigenous offenders in Nunavut usually comes before the court via Defence submissions, pre-sentence reports, and occasionally comments directly from offenders. Counsel for the Applicant argues that these sources of information are insufficient and that a Gladue writer would provide a qualitatively superior overview of the systemic factors that have played a role in bringing the offender before the court. Gladue writers are typically either members of the Indigenous communities in which they serve or they have strong social and professional connections to those communities. Because there is no Gladue writing program in Nunavut, there are no Gladue writers here with those same community connections that are so key for southern Gladue writers. Pre-sentence reports, however, are prepared by probation officers, many of them Inuit living in communities in which they serve.

Non-Inuit legal professionals in Nunavut are not without access to knowledgeable cultural and community resources. The Court will leave this discussion to more knowledgeable players within the Legal Services Board of Nunavut and the Government of Nunavut. The Court cautions against the assumption that a Gladue writer experienced in serving First Nations and Métis communities will easily translate those skills to an Inuit context. A pan-Indigenous approach to government programming is ineffective and does not meet the specific needs of Inuit. Recommendation 16.28 of the National Inquiry into Missing and Murdered Indigenous Women and Girls Final Report, notes that this failure to provide Inuit-specific services cripples Gladue principles.

When the Government of Nunavut implements a Gladue report writing program employing empathetic peers based in Nunavut communities as writers, the Court will be pleased to trust those report writers to fully enlighten the court. The colonial court system in Nunavut can only benefit from further and better cultural and historic information about the individuals who appear before it and will continue to rely on the expertise of Indigenous Court Workers, Inuit elders, resident counsel, and resident probation officers.

R v Anugaa, 2018 NUCJ 2

Posted on by
Reply

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The unique cultural context and circumstances of Nunavut amount to a third category of exceptional circumstances with respect to the application of R v Jordan and its presumptive ceilings for trial delay.

This case involved two allegations of indictable historic sexual assault alleged to have happened in Sanikiluaq between May 2, 1977 and May 2, 1978. The accused, Lukasie Anugaa, was charged on July 8, 2013. Mr. Anugaa elected to be tried by a judge and jury. However, it turned into a case about pre-trial delay, in which five different jury trial dates were scheduled. Mr. Anugaa’s fifth and latest trial was scheduled to start on January 15, 2018. Over 54 months passed between the day Mr. Anugaa was charged and the anticipated end of his trial. Mr. Anugaa made a pre-trial application to the Court based on section 11(b) of the Canadian Charter of Rights and Freedoms and the Supreme Court of Canada decision’s in R v Jordan, arguing that his right to a trial within a reasonable time had been violated. Mr. Anugaa sought a stay of proceedings on this basis, which would have brought the case to an end. The Crown opposed the stay.

The Nunavut Court of Justice decided that the delay in the circumstances of this case had been reasonable. In 2016, the Supreme Court revisited its previous interpretation of section 11(b) of the Charter in Jordan. The Supreme Court set out presumptive ceilings in terms of the amount of time that would generally amount to an unreasonable delay between the issuance of charges and a criminal trial. The Supreme Court also discussed exceptional circumstances to the strict application of these presumptive ceilings. Two examples of exceptional circumstances listed in Jordan are “discrete events” and cases that are “particularly complex”. The delay caused by “discrete events” can be deducted from the remaining net delay. Where the case is particularly complex, no deductions are needed and the Court will instead consider if the complexity justifies the time spent on the case.

Central to the Nunavut Court of Justice’s analysis was the statement in Jordan that the list of exceptional circumstances is not closed. There are exceptional circumstances that surround access to justice in Nunavut as it sprawls over Canada’s vast northern landmass. Just to name a few, 38,000 people live in 25 remote communities scattered over Nunavut’s 2,093,190 square kilometres. There is only one courthouse, the Nunavut Court of Justice, located in Iqaluit. Outside Iqaluit, the Court travels regularly to each one of the other 24 far flung communities and the distances between them are immense. The circuit sits in school gyms, community halls and even council chambers. Many of the community halls lack functioning washrooms and heating systems fail leaving court participants to conduct court in their winter parkas and mittens. The harsh arctic climate is unforgiving, therefore flights are delayed or cancelled as blizzards are a regular occurrence. The cancellation of a court circuit has an impact out of proportion to a similar cancellation in the south as it means the possibility of no court in the community for an entire year, unless a jury trial has been scheduled. Jordan does not account for the impact of Nunavut’s tremendous infrastructure deficit, as the taxpayer money available to the Government of Nunavut is woefully inadequate. This level of service will continue despite the new Jordan rules.

In the Court’s view, Jordan is also problematic as it does not consider the unique cultural context in Nunavut. There is central importance of Inuit Qaujimajatuqangit. Nunavut’s communities are small and very closely knit. The Court stands down for burials and funerals and sentencing hearings are delayed in order to permit offenders to participate in seasonal hunts. The Court avoids scheduling jury trials during the extremely short arctic summers because it is a time when many Nunavummiut return to the land. This seasonal reality cannot be overstated and will continue in the future. Jordan only enumerates two subcategories which permit delay: exceptional discrete circumstances and exceptional case complexity.

In Mr. Anugaa’s case, the Court felt that the above was not enough to be described as “discrete events” as contemplated by Jordan. Rather, the way these events were dealt with reflected the very ethos of the approach of the delivery of justice in Nunavut. To apply Jordan justly in Nunavut, the Court held that there must be a third subcategory of exceptional circumstances which reflects the territory’s unique cultural context. The Court took the position that Jordan did not account for the need to respect and incorporate Inuit culture and experiences into the delivery of justice to Nunavummiut. The delivery of justice in Nunavut poses unique and unavoidable challenges in circumstances found nowhere else in Canada. Therefore, Mr. Anugaa’s application for a stay was rejected and the case was ordered to proceed to trial.

The parties were also at odds over where another trial should be held if the stay was not granted. The Crown brought an application to move the jury trial to a different community. It was argued that every eligible adult in Sanikiluaq had already likely been summonsed at least once to serve on the jury and fair trial interests required a change in venue, due to Mr. Anugaa being notorious in the community. The Court accepted that it was necessary to hold the trial in a different community in the unique circumstances of the case, as Mr. Anugaa is entitled to a jury of his peers but not entitled to a jury of his neighbours.

Case Watch for August 2016

Posted on by
Reply

 FROM OUR PUBLICATIONS DESK

Case Watch

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.