Category Archives: Aboriginal

Ktunaxa Nation: On the “Spiritual Focal Point of Worship” Test

By: Howard Kislowicz and Senwung Luk

PDF Version: Ktunaxa Nation: On the “Spiritual Focal Point of Worship” Test

Case Commented On: Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII)

On 2 November 2017, the Supreme Court of Canada rendered its long awaited decision in Ktunaxa Nation. As noted by David Laidlaw in the initial post concerning Ktunaxa Nation, the decision raised significant issues surrounding the scope of religious freedom and its particular application to Indigenous groups, the Crown’s duty to consult and accommodate Indigenous groups, and administrative law more generally. In this blog post, we focus on the first issue: what this case says and means for religious freedom claims. Continue reading →

Silencing the Qat’muk Grizzly Bear Spirit

By: David Laidlaw

PDF Version: Silencing the Qat’muk Grizzly Bear Spirit

Case Commented On: Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII)

In the course of reading the recent decision of the Supreme Court of Canada in Ktunaxa Nation v British Columbia, I was struck by the number (13) of authorized non-party intervenors. There is a central omission – who speaks for Qat’muk’s Grizzly Bear Spirit?

The Appellant Ktunaxa Nation described the Qat’muk region as a place of spiritual significance for them. As the Supreme Court said, “Notably, it is home to an important population of grizzly bears and to Grizzly Bear Spirit, or K?aw?a Tuk?u?ak?is, ‘a principal spirit within Ktunaxa religious beliefs and cosmology’” at paragraph 5 in the Majority Decision authored by Chief Justice McLachlin and Malcolm Rowe JJ, concurred in by Justices Abella, Karakatsanis, Wagner, Gascon, and Brown (Majority Decision).   Continue reading →

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 →

Reconciling the Application of the Interjurisdictional Immunity Doctrine to Aboriginal Title and Lands Reserved

By: Jennifer Koshan

PDF Version: Reconciling the Application of the Interjurisdictional Immunity Doctrine to Aboriginal Title and Lands Reserved

Case Commented On: McCaleb v Rose, 2017 BCCA 318 (CanLII)

It is a challenge to teach the interjurisdictional immunity (IJI) doctrine these days, in part because the Supreme Court of Canada has been sending mixed, incomplete, and frankly off the cuff messages about the use of this doctrine. IJI has predominantly been applied so as to render provincial laws inapplicable to federal works, undertakings and other federally regulated persons and entities when they impair the core of the federal power over those entities (although the Supreme Court of Canada left the door open for IJI to apply to federal laws that impair provincial entities in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (CanLII)). The Court signalled in Canadian Western Bank v Alberta, 2007 SCC 22 (CanLII), that generally the use of the doctrine should be minimized since it is redolent of more rigid approaches to constitutional law that favour “watertight compartments” rather than the more modern cooperative federalism approach. Canadian Western Bank tells us that IJI issues are to be analysed only if the case can’t be resolved on the basis of validity or paramountcy, although the Court has often neglected that progression in cases subsequent to Canadian Western Bank (see e.g. Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39 (CanLII)). Continue reading →

The Intersection of Discretionary Powers, Fiduciary Duties, the Public Interest and the Standard of Review

By: Nigel Bankes

PDF Version: The Intersection of Discretionary Powers, Fiduciary Duties, the Public Interest and the Standard of Review

Case Commented On: Coldwater Indian Band v Canada (Aboriginal Affairs and Northern Development), 2017 FCA 199 (CanLII)

In this decision, the Federal Court of Appeal, by a majority (per Justice Eleanor Dawson, Justice Donald Rennie concurring; Justice Wyman Webb, dissenting), concluded that the Minister of Indian Affairs and Northern Development breached the fiduciary duty he owed to the Coldwater Indian Band when he approved the assignment of a pipeline right of way easement of 1955 from one affiliate of Kinder Morgan Canada Inc to another affiliate without taking steps to improve the terms of the bargain or at least to ensure that the Crown had been vigilant in its continuing fiduciary obligation to preserve and protect the Band’s interest in the reserve land from an exploitive or improvident bargain. Since the matter came before the Court as an application for judicial review, the Court set aside the Minister’s decision and returned the matter to the Minister for redetermination in accordance with the Court’s reasons. An earlier application by the Band to prevent the Minister from granting approval to the assignment had been dismissed by the Federal Court on the basis that that the application was premature; see the decision in Coldwater Indian Band v Canada (Indian Affairs and Northern Development), 2014 FCA 277 (CanLII). For my earlier post on those proceedings see here. Continue reading →