Author Archives: Elysa Darling

About Elysa Darling

B.A. (UBC), J.D. (Calgary), LLM Candidate (Calgary, 2019). Prior to law school, Elysa worked for an international not-for-profit foundation. During her law degree she earned a diploma with distinction from the International Peace and Security Institute in The Hague where she wrote and presented on Canada’s Truth and Reconciliation Commission. Alongside a classmate, Elysa co-founded the Calgary Women Studying Law Association (CWSLA), the first student-focused women’s group in the Faculty. Following law school Elysa articled with a full-service firm in downtown Calgary. Elysa is working towards completing her LLM in the Domestic Violence and Access to Justice project at the University of Calgary.

UN Human Rights Committee Rules Indian Act is Discriminatory in McIvor Case

By: Elysa Darling and Drew Lafond

PDF Version: UN Human Rights Committee Rules Indian Act is Discriminatory in McIvor Case

Decision Commented On: Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2020/2010

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act and is not intended to carry any derogatory connotations in this post.

Introduction

In a decision released on January 14, 2019, the United Nations Human Rights Committee (UNHRC) determined that the Government of Canada violated the International Covenant on Civil and Political Rights (ICCPR) by discriminating against First Nations women and their descendants through Status requirements under the Indian Act, RSC 1985, c I-5. The decision was one that the claimants, Sharon McIvor and her son Jacob Grismer, had been waiting for more than a decade since their case was first heard by the British Columbia Superior Court in 2007.

To understand McIvor and Grismer’s complaint to the UNHRC and the litigation that preceded it, a review of their family lineage and the many amendments made to the Indian Act will be reviewed in this post. We will also briefly review the Status provisions of the Indian Act and the litigation and legislative amendments that have resulted from claims of sex discrimination under the Act, review McIvor and Grismer’s litigation, and summarize the arguments made to the UNHRC and the Committee’s final decision.

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Barring Claims Against Discriminatory Legislation: Canada v Canada

By: Elysa Darling and Drew Lafond

PDF Version: Barring Claims Against Discriminatory Legislation: Canada v Canada

Case Commented On: Canada (Canadian Human Rights Commission v Canada (Attorney General), 2018 SCC 31 (Can LII)

Two weeks ago, in Canada (Canadian Human Rights Commission v Canada (Attorney General) (CHRC v AG), the Supreme Court of Canada upheld the decision of the Canadian Human Rights Tribunal (CHRT) that direct challenges to legislation cannot be pursued under section 5 of the Canadian Human Rights Act, RSC 1985, c H-6 (the CHRA). The claimants in this case argued that they were discriminated against under section 6 of the Indian Act, RSC 1985, c I-5 and filed a complaint under section 5 of the CHRA asking the CHRT to render inoperative the offending provisions in the Indian Act. The decision of the CHRT, with which the Court agreed, was that a complaint under the CHRA cannot be used to directly challenge legislation on the basis that it is discriminatory.

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Landlords, Tenants, and Domestic Violence: The Family Homes on Reserves and Matrimonial Interests or Rights Act

By: Elysa Darling

PDF Version: Landlords, Tenants, and Domestic Violence: The Family Homes on Reserves and Matrimonial Interests or Rights Act

Legislation Commented On: Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20

This blog post accompanies a series of posts written by Jonnette Watson Hamilton and Jennifer Koshan on Landlords, Tenants and Domestic Violence. The series examines the legal uncertainties facing landlords and property managers seeking to respond to domestic violence involving their tenants, as identified in the Centre for Public Legal Education Alberta (CPLEA) report on Domestic Violence: Roles of Landlords and Property Managers.

As section 91(24) of the Constitution Act, 1867, 30 & 31 Vict, c 3, places “Indians and Lands reserved for Indians” within federal jurisdiction, provincial laws regarding leases and matrimonial property are inapplicable on designated reserve land (for more details on the inapplicability of provincial regulations on reserve in a lease context, see here). The Indian Act, RSC 1985, c I-5, does not, however, provide for any laws dealing with matrimonial real property on reserve lands. As a result, indigenous persons and communities were left without any recourse regarding property (owned or leased) upon the death of a spouse or the breakdown of a marriage or common-law relationship. The federal government sought to fill this gap in 2013 with the passage of the Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20 (FHRMIRA). This Act governs the actions of tenants and landlords dealing with domestic violence in reserve communities. Continue reading →

The Sixties Scoop & the Duty to Consult: A New Frontier in Aboriginal Litigation?

Case Commented On: Brown v Canada (Attorney General), 2017 ONSC 251 (CanLII)

PDF Version: The Sixties Scoop & the Duty to Consult: A New Frontier in Aboriginal Litigation?

By: Elysa Hogg and Alex Darling

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act, and is not intended to carry any derogatory connotations.

Introduction

From 1965- 1984 governments across Canada removed tens of thousands of Indian children from their families on reserve and placed them with non-Indian adoptive families or in foster homes and group homes. As a result, many of these children lost touch with both their families and their First Nations identities, with devastating consequences including emotional scarring, substance abuse, and heightened rates of suicide and incarceration. This dark period in Canada’s history is commonly known as the “Sixties Scoop”.

Brown v Attorney General (Canada) 2017 ONSC 251 (CanLII) (Brown) is a decision regarding a class action lawsuit by nearly 16,000 individuals in Ontario who were negatively affected by the Ontario Government’s child welfare policies during the Sixties Scoop. Specifically, the claimants focus on the period between 1965 when Ontario extended its child welfare services to reserves and 1984, when Ontario amended its child welfare legislation to recognize that “aboriginality” should be a factor considered in child protection and placement (at para 14).

The Court held that Canada breached its common-law duty of care by failing to take reasonable steps to prevent removed children from losing their indigenous heritage (at para 85), but declined to find that the Crown breached any fiduciary duty.

This post will aim to provide the following:

Background information on the period commonly referred to as the “Sixties Scoop”;
A brief look at the procedural history of Brown, as well as an analysis of the decision; and
Thoughts on how this ruling, and its implications on tort law and Aboriginal rights, may fit into the federal government’s promises to Canada’s indigenous peoples, and how it may affect Sixties Scoop claimants across the country, including Alberta.

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Bill S-3: A rushed response to Descheneaux

By: Elysa Hogg

PDF Version: Bill S-3: A rushed response to Descheneaux

Matters Commented On: Bill S-3 “An Act to amend the Indian Act (elimination of sex-based inequities in registration); Descheneaux c Canada (Procureur General), 2015 QCCS 3555 (CanLII)

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act, and is not intended to carry any derogatory connotations.

In the early days after the 2015 election, Prime Minister Trudeau was honoured by the Tsuut’ina First Nation with a traditional headdress and an indigenous name which translates to “the one that keeps trying.” Trudeau and the Liberals will have to keep trying, as they made an extraordinary commitment to address First Nations issues during the campaign, and set multiple deadlines for action within the next few years. One of the first deadlines to come due is an amendment of the Indian Act, RSC, 1985 c. I-5 necessitated by a recent Quebec Superior Court ruling.

In Descheneaux c Canada (Procureur General), 2015 QCCS 3555 (CanLII) (Descheneaux) the court held that several provisions of the Indian Act surrounding who is considered a ‘Status Indian’ violated the principles of equality protected by Section 15 of the Charter of Rights and Freedoms.

After withdrawing an appeal of the decision in February 2016, the federal government has commenced a two-stage response to this ruling. Stage one is Bill S-3 “An Act to amend the Indian Act (elimination of sex-based inequities in registration)”, while stage two is a collaborative process between the government and First Nations leadership to identify and implement further reforms.

This post will briefly summarize the issues and findings in Descheneaux, and assess how these are impacted by Bill S-3. It will also examine some of the testimony given at the Senate’s Standing Committee on Aboriginal Peoples meetings held last week on these issues. Finally, it will briefly look at how Deschaneaux fits into the Liberal government’s progress on implementing the many campaign promises it made to First Nations’ people. Continue reading →