The Canadian Abridgment Edigests - Aboriginal Law

The Canadian Abridgment eDigests - Aboriginal Law

The Canadian Abridgment eDigests -- Aboriginal Law

2016-25 June 20, 2016

ABL.II.6

Subject Title: Aboriginal law

Classification Number: II.6

Reserves and real property -- Expropriation of Aboriginal lands

Assignment -- Procedural fairness -- Pipeline right-of-way through reserve of Indian Band was granted in 1955 to third party company, through indenture -- Respondent Minister of Indian Affairs and Northern Development consented to assignment of indenture to respondent company, executing assignment consent agreement -- Applicant Band and its chief applied for judicial review -- Application dismissed -- Procedural fairness included basic rights to know case to be met and to make submissions -- With exception of staff recommendation, Band was provided with all information before Minister, it participated in meetings and it made submissions -- Decision was discretionary, administrative decision and Band’s consent was not required to assign indenture -- Decision was important to Band but doctrine of legitimate expectations did not apply here -- Duty of procedural fairness was met even though Band was not provided with staff recommendation.

Coldwater Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (2016), 2016 CarswellNat 1909, 2016 FC 595, E. Heneghan J. (F.C.) [Federal]

ABL.II.9

Subject Title: Aboriginal law

Classification Number: II.9

Reserves and real property -- Fiduciary duty

Pipeline right-of-way through reserve of Indian Band was granted in 1955 to third party company, through indenture -- Respondent Minister of Indian Affairs and Northern Development consented to assignment of indenture to respondent company, executing assignment consent agreement -- Applicant Band and its chief applied for judicial review -- Application dismissed -- Minister owed fiduciary duty to Band in deciding whether to consent to assignment of indenture and it also owed duty of good faith to company arising under indenture -- Duty of good faith owed to company was subordinate to fiduciary duty owed to Band -- Test used in expropriation under s. 35 of Indian Act applied to assignment of interest that arose from expropriation -- Minister must first determine that assignment of instrument was in public interest and then must ensure that Band’s interest in reserve was only minimally impaired -- Minister did not have fiduciary duty until second stage of analysis, where consultation with Band was required -- Section 35 did not require Band’s consent -- Expropriation was made in proper manner for lawful purpose and was in public interest -- Minister’s consent to assignment was continuation of initial recognition of pubic interest arising from expropriation -- Minister’s consent to assignment was minimal impairment of Band’s use and enjoyment of its land -- Assignment of indenture did not increase impairment of Band’s use of reserve land -- Minister engaged Band many times

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during administrative proceeding -- Minister discharged fiduciary duty owed to Band -- Minister’s decision to consent to assignment of indenture was justifiable, transparent and intelligible and it met standard of reasonableness.

Coldwater Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (2016), 2016 CarswellNat 1909, 2016 FC 595, E. Heneghan J. (F.C.) [Federal]

ABL.II.10

Subject Title: Aboriginal law

Classification Number: II.10

Reserves and real property -- Miscellaneous

Duty to consult -- Developer brought application to city under Planning Act for planning permission to redevelop certain lands within city located in river -- After process of investigation by city, official plan amendment was adopted and zoning by-law was enacted to facilitate future development of these lands -- Applicants unsuccessfully appealed plan amendment and by-law enactment -- Applicants brought motion for leave to appeal -- Motion dismissed -- Applicants did not raise any issue of law that merited full hearing -- Board member concluded in careful and detailed reasons that consultation process involving Algonquins of Ontario was in compliance with policy statement and that on evidence, official plan amendment and by-law in question represented appropriate planning -- Board member clearly recognized and accepted existence of duty to consult and found on evidence that it had been discharged.

Cardinal v. Windmill Green Fund LPV (2016), 2016 ONSC 3456, 2016 CarswellOnt 8284, Charles T. Hackland J. (Ont. Div. Ct.) [Ontario]

ABL.III.3.d

Subject Title: Aboriginal law

Classification Number: III.3.d

Government of Aboriginal people -- Elections -- Miscellaneous

Applicants were members of respondent First Nation who were nominated to run for Chief in election -- Applicant O was found ineligible to be candidate -- Applicant H lost election that he alleged involved numerous infractions of customary election regulations -- Applicants’ election appeals, which were heard together by Election Arbitrator, were dismissed -- Applicants’ applications for judicial review were dismissed -- Applicants appealed -- Appeal dismissed -- Statutory declaration of witness contained some evidence on which Arbitrator could have relied on to reach conclusion that there were grounds to void or disqualify only single vote, which was insufficient to invalidate election result as sought by H -- Nothing in cross-examination of that witness would had required Arbitrator to set aside statutory declaration -- It was open to H to call witnesses who could have provided other or better evidence as to what took place during relevant period -- Having failed to do so, he could not complain about any lack of evidence -- As for O’s appeal, there was no constitutional limitation on right of First Nations to establish reasonable limitations on who might present themselves as candidates for

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elected office -- Preamble to The Constitution Act 1867 did not enshrine untrammelled right to present oneself as candidate for elected office in First Nation.

Orr v. Peerless Trout First Nation (2016), 2016 CarswellNat 1615, 2016 FCA 146, De Montigny J.A., J.D. Denis Pelletier, Webb J.A. (F.C.A.); affirming (2015), 2015 CarswellNat 4232, 2015 FC 1053, 2015 CF 1053, 2015 CarswellNat 9120, Cecily Y. Strickland J. (F.C.) [Federal]

ABL.IX.1

Subject Title: Aboriginal law

Classification Number: IX.1

Taxation of Aboriginal persons and Aboriginal property -- Treaty rights

First Nation claimed that certain lands situated within municipality were part of its reservation as described in Huron Treaty of 1850 -- Assertion flowed from alleged error that occurred in surveying of reservation in Nineteenth Century -- Crown official who allegedly transcribed Treaty document in 1850 subsequently wrote report stating, effectively, that he had misinterpreted Aboriginal term connoting distance -- Municipality agreed with First Nation’s position and municipality had not collected municipal taxes for said lands since 2000 as reserve lands were not subject to municipal taxes -- Tax arrears on Land exceeded $750,000 -- Municipality paid over $160,000 to Province as levy on Land despite fact that municipality had received no tax income regarding same -- While municipality recognized validity of First Nation’s claim to Land, Provincial and Federal Governments had not, as yet, entered into negotiations with First Nations to either recognize or disavow First Nation’s claim to Land -- Municipality commenced proceedings to seize and sell Land pursuant to tax sale under Municipal Act, 2001 in order to collect upon arrears and cease negative cash flow associated with situation -- First Nation brought application for injunction in order to halt said process -- Application granted -- Evidence suggested that First Nation had arguable case to suggest that error was made in original survey -- As such, First Nation’s case was both serious and tenable -- If Land were to be sold to purchaser for fair value, it would be possible that First Nation would have little or no claim to Land since sale could potentially stand in priority to First Nation’s claim -- Cost of municipality could be mitigated by stay in Province’s ability to collect money as result of levy associated with Land -- Balance of inconvenience weighed heavily in favour of granting interim injunction.

Thessalon First Nation v. Huron Shores (Municipality) (2016), 2016 CarswellOnt 5882, 2016 ONSC 2391, Varpio J. (Ont. S.C.J.) [Ontario]

ABL.X.1.b

Subject Title: Aboriginal law

Classification Number: X.1.b

Practice and procedure -- Jurisdiction -- Federal Court

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Federal and provincial Crowns concluded comprehensive agreement with various First Nations, creating framework for fulfillment of Crown’s outstanding obligations under Treaties with respect to shortfall in amount of reserve land provided -- Pursuant to framework, Crown concluded settlement agreement with plaintiff First Nation -- Both framework and settlement agreements provided that any matter relating to interpretation and enforcement of settlement agreement would be within exclusive jurisdiction of Federal Court -- Plaintiffs brought action in Federal Court against federal and provincial Crown, alleging breach of settlement agreement and failure to consult regarding grant to third party of subsurface mineral lease for mining project -- Province’s motion to strike action as against it was dismissed -- Province appealed -- Appeal allowed in part -- Provision in framework and settlement agreements meant what it unambiguously said, as province’s argument that it should be read to mean that only claims against Canada were to be brought before Federal Court did violence to provision’s clear wording and led to absurdity -- Province had attorned to Federal Court’s jurisdiction over claims to which that provision applied, which operated to prevent province from invoking principle of Crown immunity -- Honour of Crown was engaged in this matter to extent that clear and unambiguous text of agreements, negotiated in good faith with all parties represented by counsel, should be interpreted in way that abided by and respected terms of agreements -- Attornment clause in agreements was sufficient to ground jurisdiction in Federal Court with respect to claim that province breached settlement agreements by its repeated refusals to make provincial Crown lands available for sale to plaintiffs -- That claim dealt with treaty land entitlement settlement, which federal common law and were intimately connected with Indian Act -- Portion of claim alleging breach of duty to consult prior to awarding mineral rights to third parties did not relate to settlement agreement and so attornment clause was inapplicable.

Saskatchewan (Attorney General) v. Pasqua First Nation (2016), 2016 CarswellNat 1365, 2016 FCA 133, D.G. Near J.A., J.D. Denis Pelletier J.A., Mary J.L. Gleason J.A. (F.C.A.) [Federal]

ABL.X.2.d

Subject Title: Aboriginal law

Classification Number: X.2.d

Practice and procedure -- Pleadings -- Striking out

Coldwater Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (2016), 2016 CarswellNat 1909, 2016 FC 595, E. Heneghan J. (F.C.) [Federal]

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