Category Archives: Aboriginal

Gladue Factors: Still Not a “Race-Based Discount”

By: Amy Matychuk

PDF Version: Gladue Factors: Still Not a “Race-Based Discount”

Case Commented On: R v Matchee, 2019 ABCA 251

In R v Matchee, Justices Patricia Rowbotham, Ritu Khullar, and Dawn Pentelechuk of the Alberta Court of Appeal (ABCA) overturned Alberta Court of Queen’s Bench Justice Eldon J. Simpson’s sentencing decision because it did not give proper effect to Gladue factors (named for the case that created them, R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC)). The ABCA sentenced the offender afresh, substituting a six-year sentence for the original seven-year sentence (though with the deduction of three years 7.5 months credit for pre-sentence custody the remaining sentence was two years 4.5 months). The ABCA also commented on the correct application of Gladue factors, which are frequently misapplied and misunderstood as a “race-based discount” rather than “a partial remedy for the systemic discrimination suffered by [A]boriginal people which has led to their overrepresentation in the criminal justice system” (at para 31). Continue reading →

In Pausing Taseko’s New Prosperity Mine Exploration Program BCCA Recognizes Unsettled Questions Relating to the Duty to Consult; Consent and Justification Analysis and Proven Aboriginal Rights

By: Sharon Mascher

PDF Version: In Pausing Taseko’s New Prosperity Mine Exploration Program BCCA Recognizes Unsettled Questions Relating to the Duty to Consult; Consent and Justification Analysis and Proven Aboriginal Rights

Case Commented On: William v British Columbia (Attorney General), 2019 BCCA 112 (CanLII)

On April 1, 2019, the British Columbia Court of Appeal (BCCA), in William v British Columbia (Attorney General) granted Chief Roger William, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations Government and the Tsilhqot’in Nation (the Applicants), a stay of an order allowing an exploratory drilling program in relation to the New Prosperity Mine Project to proceed pending the outcome of an application for leave to appeal to the Supreme Court of Canada (SCC). The application for leave to appeal relates to a petition for the judicial review of a Notice of Work Approval granted to Taseko Mines Limited (TML) by the Province of British Columbia on July 17, 2017 allowing the exploratory drilling work to proceed. Chief William’s petition for judicial review of the Approval was dismissed by a chambers judge (William v British Columbia, 2018 BCSC 1425 (CanLII)) who found that the Province’s decision was reasonable and that the Province’s consultation process and degree of accommodation had maintained the honour of the Crown. On March 1, 2019, the BCCA (William v British Columbia (Attorney General), 2019 BCCA 74 (CanLII)) agreed with the findings of the chambers judge and dismissed Chief William’s appeal.

In reaching a decision that the stay should be granted, and specifically that the Applicants have met the merits test, Justice Bruce Butler rejects TML’s argument that this is just another duty to consult case applying a long line of settled law. In so doing, Butler JA recognizes that the law relating to sufficiency of consultation and accommodation, the role of consent, and the justification analysis from Tsilhqot’in Nation v British Columbia, 2014 SCC 44 (CanLII) is unsettled when proven s 35 Aboriginal rights are at issue. Continue reading →

Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

By: Amy Matychuk

PDF Version: Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

Case Commented On: R v Newborn, 2019 ABCA 123 (CanLII)

In R v Newborn, Justices Frans Slatter, Ritu Khullar, and Barbara Lea Veldhuis of the Alberta Court of Appeal (ABCA) dismissed an argument from the appellant (the accused) that “the array from which his jury was selected was constitutionally flawed because it disproportionately excluded [A]boriginal citizens” (Newborn ABCA, at para 1). It also dismissed his argument that inadmissible expert evidence was allowed at the trial. However, this post will focus on the right to a representative jury as defined in the Supreme Court’s decision in R v Kokopenace, 2015 SCC 28 (CanLII), R v Newborn’s application of Kokopenace, and the appropriate scope of the state’s obligations under Charter s 11. Continue reading →

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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Bill C-88 Will Finally Eliminate the MVRMA “Superboard” … But Where’s the Rest?

By: David V. Wright

PDF Version: Bill C-88 Will Finally Eliminate the MVRMA “Superboard” … But Where’s the Rest?

Bill Commented On: Bill C-88, An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts

The Trudeau Government recently tabled Bill C-88, An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts. This post focuses on the amendments to the Mackenzie Valley Resource Management Act, SC 1998, c 25 (MVRMA). The primary purpose of this portion of the Bill is to reverse several controversial amendments to the MVRMA. The Harper Government enacted these changes in 2014 as part of a broader suite of reforms to implement devolution in the Northwest Territories (NWT). These amendments sought to reform regulatory review bodies and co-management boards in the NWT by creating a “superboard”; however, the litigation discussed below stymied those plans. This post provides context around Bill C-88, summarizes the superboard litigation, and comments on an unfulfilled government commitment to conduct a broader review of northern assessment regimes.

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