Category: Aboriginal Page 14 of 30

Reasons, Respect and Reconciliation

On March 3, 2017

In Aboriginal, Administrative Law, Property

By: Nigel Bankes

PDF Version: Reasons, Respect and Reconciliation

Case Commented On: Kainaiwa/Blood Tribe v Alberta (Energy), 2017 ABQB 107 (CanLII)

Reconciliation between Canada’s settler society and First Nations and other indigenous communities certainly requires mutual respect but it should also require reasons in appropriate cases according to Justice Paul Jeffrey, at least where the Crown dismisses an application for the exercise of a statutory discretion which is closely linked to efforts to right an historic grievance. This is an important decision which should be required reading for every Minister of the Crown with a responsibility for the relationship between Her Majesty and Canada’s first peoples, and for all senior civil servants responsible for advising those Ministers.

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

By Alex Darling

On February 23, 2017

In Aboriginal, Torts

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.

The Duty to Consult and the Legislative Process: But What About Reconciliation?

By Nigel Bankes

On December 21, 2016

In Aboriginal, Constitutional

By: Nigel Bankes

PDF Version: The Duty to Consult and the Legislative Process: But What About Reconciliation?

Case Commented On: Canada v Courtoreille, 2016 FCA 311 (Can LII)

In Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council (2010 SCC 43 (CanLII) at para 44), the Supreme Court declined to answer the question of whether legislative action might trigger the duty to consult and, where appropriate, accommodate Aboriginal groups. This question was front and centre in Canada v Courtoreille, 2016 FCA 311 (Can LII), which involved the omnibus budget bills of the Harper administration (2012). The majority (Justices de Montigny and Webb) answered (at para 3) that “legislative action is not a proper subject for an application for judicial review … and that importing the duty to consult to the legislative process offends the separation of powers doctrine and the principle of parliamentary privilege.” Justice Pelletier offered concurring reasons which are somewhat more nuanced as to the possibility of intervention in the legislative process. He would give effect to the duty to consult in a particular, and narrow set of cases, but still concludes that, in most cases, the duty to consult has no place in the legislative process.

Bill S-3: A rushed response to Descheneaux

By Elysa Darling

On December 1, 2016

In Aboriginal, Constitutional, Human Rights

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.

The Application of the Charter to a Protest on the Siksika Nation

By Linda McKay-Panos

On November 22, 2016

In Aboriginal, Constitutional

By: Linda McKay-Panos

PDF Version: The Application of the Charter to a Protest on the Siksika Nation

Case Commented On: Siksika Nation v Crowchief, 2016 ABQB 596 (CanLII)

Recently there have been several cases involving the issue of whether the Charter of Rights and Freedoms (Charter) applies in a context where there is some government or public nexus but the action may be characterized as one involving private parties. See for example, my previous post on the application of the Charter to Universities.

This case presents yet another situation where the court is asked to address whether the Charter applies. Most of the decision involves whether the Court should grant an interlocutory injunction to the Siksika Nation. The Siksika Nation, represented by its Chief and Council (Applicant), filed a Statement of Claim seeking an injunction and damages against Ben Crowchief and “Unknown Defendants” (Respondents). A number of band members, including Crowchief, blockaded the reconstruction of Siksika Nation homes being built to address damages from flooding of the Bow River in 2013. The blockade was intended to protest the lack of accountability and transparency by the council and chief (at para 18).