Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193

This case deals with an action brought by the Chief of the Kwicksutaineuk/Ah-Kwa-Mish First Nation and his attempt to have the action certified as a class action with the class defined as “all aboriginal collectives who have or assert constitutionally protected aboriginal and/or treaty rights to fish wild salmon for food, social, and ceremonial purposes within the Broughton Archipelago and the rivers that drain into the Broughton Archipelago on behalf of himself and other Aboriginal collectives who have rights to fish in the Broughton Archipelago.” The issue in this appeal is whether the certified description for the plaintiff class is statutorily permissible. The British Columbia Court of Appeal holds that not only is the class not properly defined, but that there is no acceptable definition which the Court could substitute for the one used by the chambers judge.

The reasons the court gives for holding that the class definition does not meet the legislative criteria are to do with lack of legal capacity of the group as defined and lack of known objective criteria by which a collective could identify its membership in the class. In terms of legal capacity, the Court points out that an unincorporated association does not have to capacity to sue or be sued, unless legislation specifies otherwise. The Class Proceedings Act (“CPA”) does not create a substantive right to litigate and so a collective that cannot act as an independent plaintiff cannot be made a capable plaintiff through identification and inclusion in a class proceeding. The court confirms that a Band registered under the Indian Act does have legal capacity, but is not necessarily the proper entity to assert an Aboriginal right. The Court declines to decide in general whether an Aboriginal collective has legal capacity, but does hold that in this case, the “aboriginal collectives” designated as class members do not have legal capacity.

With respect to the objectivity criteria, the Court points out that in an Aboriginal rights claim the identity of the rights holder is integral to the analysis. In this case, this identity is also integral to part of the class definition. The chambers judge identified several Bands to be included in the class based on ethnographic material and the Court points out that performing this sort of in-depth analysis to identify class members conflicts with the CPA goals of judicial economy and access to justice. This Court cites the chambers judge's analysis and reasons as proof that the class definition does not provide clear and objective criteria. Furthermore, the circularity in defining members of the class as those who have the right to fish in an action which will partly determine the question of their right to fish would further complicate the matter.

Link to Decision

Kiran Arora

*

Darcis et al. v. Manitoba et al., 2012 MBCA 49

In this case, the Manitoba Court of Appeal clarified a stated question of law from a Northern Flood Agreement (NFA) arbitrator regarding what constitutes a South Indian Lake claim (or “SIL claim”). The central issue in the appeal was a claim by an individual who had left the community, where the damage or loss had not occurred within "the SIL Trapline Zone". Having ruled against the claimant, the arbitrator raised the case to the Court of Appeal. Hamilton J.A. determined that, because the NFA is essentially the arbitrator’s home statute, the standard of review would be reasonableness, and that the geographic restriction on SIL claims created by the decision was unreasonable. The appeal was allowed.

In 1977, the NFA was entered into between several parties, including the Manitoba Hydro Electric Board and the Nisichawayasihk Cree Nation (NCN), allowing the SIL community to bring claims for damage caused by hydro-electric development. A newer agreement was created in 1996, including an exception governing SIL claims. The NFA claims at issue in Darcis v Manitoba were first made in 1992 by people who had been displaced as a result of adverse effects of the project. When their collective claim was denied, the appellants made the claims in issue individually. However, the NFA arbitrator determined that when an ordinary resident defined under subsection (b) of the 1996 agreement leaves the SIL community, he or she cannot make a claim because damages did not arise in the SIL trapline zone under subsection (a).  The appellants' position is that the decision in this case has the effect of punishing them for having left South Indian Lake to mitigate their damages.
 

After reviewing the arbitrator’s decision and the NFA, Hamilton J.A. determined that, because the words “regardless of where the damage or loss arose” are included in the introductory paragraph of the 1996 agreement governing SIL claims, the arbitrator’s conclusion unreasonably limited what constitutes an SIL claim. As long as a member of the NCN was ordinarily resident at or near the community of SIL at one of the dates specified in subsection (b) (at the date of the 1996 agreement or at the date the damage arose) the fact that they then left and the damage caused by hydro development did not occur in the trapline zone does not limit their claim. As a result, the appeal was allowed.

Link to Decision

Rebecca Vasluianu

Tony Drake

*

Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011 BCCA 425

In Ahousaht Indian Band and Nation v. Canada, the British Columbia Court of Appeal considered whether an award of special costs to the respondent First Nations groups was justified in a case concerning the adjudication of their Aboriginal rights over commercial fisheries. Reasoning that the case did not raise sufficiently exceptional matters of public importance and that the litigation was, at least indirectly, in the respondents' economic interest to pursue, the Court held that special costs were not justified.

The underlying case concerned the aboriginal rights of the respondent First Nations groups to commercially fish for any species of fish within certain territories. At trial, the respondents won a declaratory judgment as to the existence of those rights. They were awarded costs, and also special costs because of the public significance of the constitutional litigation they had undertaken. Canada appealed the award of special costs.

The framework for the awarding of special costs in Victoria (City) v. Adams, 2009 BCCA 563, was the focus of the Court's analysis. Noting that it was not disputed by the parties that at least two of the four Adams factors (appellant's superior capacity to bear the costs, and the absence of abusive, vexatious or frivolous conduct) weighed in favour of special costs, the Court proceeded to analyze the remaining two factors: whether "The case involves matters of public importance that transcend the immediate interests of the named parties, and which have not been previously resolved," and whether "The successful party has no personal, proprietary or pecuniary interest in the outcome of the litigation that would justify the proceeding economically."

 In regards to the "public importance" factor, the Court held that an award of special costs requires exceptional circumstances beyond merely being "difficult cases" that are of "general interest". The Court reasoned that such cases can already give rise to elevated costs under the British Columbia Rules of Court s.2(3), and that an award of special costs must therefore require something more. In this case, while the proper resolution of aboriginal fishing claims was "significant," it was "questionable" whether the litigation established principles that may well be applicable to other aboriginal rights cases because the case did not "break novel ground in establishing legal principles". The Court reached this conclusion despite noting that the trial judge developed certain points of aboriginal law, including modifying the test for the existence of an aboriginal right from R. v. Van der Peet, [1996] 2 SCR 507, and reconciling into a single analysis the test for infringement of an aboriginal right from R. v. Sparrow, [1990] 1 SCR 107, and R. v. Gladstone, [1996] 2 SCR 723. Contrasting this case to an earlier case on Aboriginal fishing rights, Lax Kw'alaams Indian Band v. Canada (Attorney General), 2009 BCCA 593, the Court argued that the different outcome in this case was largely fact-driven, and that it did not rise to the exceptional level of public importance required for an award of special costs.

 In regards to the "pecuniary interest" factor, the Court held that any pecuniary interest, whether direct or indirect, weighed against the awarding of special costs. Reasoning that the "pecuniary interest" factor derives from a concern that, in the absence of funding, an issue of public interest will not be considered judicially, the Court held that the respondents in this case had an indirect but "significant" interest in seeking a right to fish commercially. In the Court's view, it was relevant, but not determinitive, that the matter had gone to trial in the absence of pro bono representation. The Court also noted that both the claim for aboriginal rights and the evidence concerning infringement concerned economic interests.

 In concluding that special costs were not justified in this case, overturning the decision of the trial judge, the Court noted that there was "some force" to the notion "that an award of special costs in this case would open the door to such an award in all aboriginal rights cases."

October 31, 2011
Link to Decision

Mary Phan & Kai Sheffield
*

Greater Vancouver Regional District v. British Columbia (Attorney), 2011 BCCA 345

In Greater Vancouver Regional District v. British Columbia, the British Columbia Court of Appeal clarified the interpretation of s.3(c) of the Local Government Act, R.S.B.C. The issue arose in the context of challenge brought by the Greater Vancouver Regional District ("GVRD") that the Musqueam Reconciliation, Settlement and Benefits Agreement Implementation Act ("Reconciliation Act") was ultra vires the British Columbia Legislature. Dismissing the appeal, Justice Newbury held for the court that s.3(c) does not create obligations for the Province of British Columbia nor a right for the GVRD for notice to be given.

"Block F" and "Block K" ("Park Lands") were sold to the GVRD by the Province in 1989 subject to the condition that it was without prejudice to the Musqueam claim over the lands. In 2008, a "Settlement Agreement" was reached in which the Park Lands were transferred to two companies designated by the Musqueam in exchange for the settlement of certain claims. The Reconciliation Act that then came into force provided that all claims the GVRD had were extinguished. In challenging the constitutionality of the Reconciliation Act, the GVRD claimed that the Province violated s. 3 of the Local Government Act in transferring the lands due to inadequate notice to them.

Newbury J. held that s.3 (c) only stated the "aspirational principle" that there should be notice for actions affecting regional interest such as that of the GVRD's, and should be treated like language in the preamble of a statute. Since the section does not state that the Province would necessarily provide such notification, it does not constitute a "manner and form" restraint on the Province's authority to enact new legislation, and therefore neither a legal obligation on the Province nor a right for GVRD was created. GVRD was denied the declaratory relief it sought and the appeal was dismissed.

August 15, 2011
Link to Decision

Adrienne Ho
*

R. v. Kokopenace, 2011 ONCA 498 and 2011 ONCA 536

In R. v. Kokopenace, the Ontario Court of Appeal is considering allegations of systematic underrepresentation of Aboriginal on-reserve residents in Ontario jury rolls.  A final decision on this issue is still pending, but the Court issued two significant preliminary rulings in 2011. First, it concluded that interveners could not be added as parties to a criminal case, but instead granted two applicants status as friends of the court.  Second, it separated the case into two parts, giving no effect to the grounds of appeal in the first part, but adjourning the second while remaining seized of the appeal.  It dismissed three grounds of appeal not related to the composition of the jury, but ordered that the jury issue be heard separately at a later date.

On the first issue, O'Connor A.C.J.O. found that "(i)n most instances there is no room to add 'strangers' as parties to a criminal appeal." Justice O'Connor held that it would be inappropriate and inconsistent with the Canadian criminal justice system to allow external parties to make submissions on substantive grounds or have rights of appeal. However, he concluded that Nishnawbe Aski Nation (NAN) and Aboriginal Legal Services of Toronto (ALST) have resources and experience that would assist the court in fully developing the record, whereas individual litigants such as the appellants do not. Therefore Justice O'Connor decided to grant NAN and ALST status as friends of the court and dispense with the usual blanket limitation that confines interveners to the existing record. He held that their participation may include cross-examining witnesses or introducing relevant evidence not tendered by the parties, but was not prepared to grant them unfettered participation.

LaForme J.A., writing for the court on the second issue, concluded that the abnormal procedure was within the Court's inherent jurisdiction to control its own process. Justice LaForme acknowledged that his decision to reject part of an appeal but adjourn the remainder to a later date was "perhaps an unusual one," but held that the merits of the appeal had not yet been fully argued.

July 6 / July 29, 2011
Link to 2011 ONCA 498
Link to 2011 ONCA 536

Marc Gibson & Sam Golder
*

Moulton Contracting Ltd. v. Behn, 2011 BCCA 311

In this case, the British Columbia Court of Appeal clarified whether individual members of a First Nation have standing to challenge the validity of government issued instruments on the basis of an alleged failure to consult. They also ruled, in the alternative, on whether such a challenge on the validity of the instruments is an impermissible collateral attack and therefore an abuse of process. Madam Justice Saunders ruled that absent a challenge by the First Nation itself, individual members of the First Nation may not attack the validity of instruments as they lack standing. She also ruled that in the alternative that such a challenge is an impermissible collateral attack.


Moulton Contracting was granted two timber sale licenses and a road permit by the BC government within the treaty 8 territory of the Fort Nelson First Nation. The defendants, members of the Fort Nelson First Nation, blocked the road that provided access to the road referred to in the timber sale licenses and impeded Moulton Contracting’s activities. The Behn family, in their pleadings at trial, argued that Moulton had no rights that were impeded by their actions because the licenses and permit were not valid, as the government had failed its duty to consult before issuing them. Moulton sought to have these pleadings struck. Justice Saunders ruled that the defendants lacked standing to raise this defence as treaty rights are held collectively and must be asserted by the community; it “requires authorization by the collective in whom the treaty and constitutional rights inhere,” which the defendants did not have.


In the alternative, Justice Saunders held that the defendants pleadings were also an impermissible collateral attack on government instruments. She distinguished this case from Canada v. Telezone as this case has at its object the nullification of an order as opposed to Telezone where the validity was immaterial to the damages claim. The defendants were able, and aware, that they could challenge the permits through judicial review but chose not to. That legal avenue should have been pursued instead of blockading the road and then challenging the permits in this setting. The appeal was therefore dismissed.

July 6, 2011
Link to Decision

Sam Golder

West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247

In West Moberly First Nations v. British Columbia (Chief Inspector of Mines), the British Columbia Court of Appeal considered the scope of the Crown’s duty to consult and accommodate First Nations treaty rights.  The Court found that Crown delegates have the duty to take First Nations rights into consideration even if it is not included in their statutory mandate.   It affirmed that historical context and potential future developments are relevant to the duty to consider treaty hunting rights.  The majority held that these can include species- or herd-specific rights.  The Court also suggested that orders directing specific accommodation must be avoided whenever possible in favour of orders directing further consultation.

The case arose when the West Moberly First Nations (WMFN) disputed an order by the BC Ministry of Energy, Mines and Petroleum Resources (MEMPR) granting sampling and exploration permits to a coal company in the WMFN traditional hunting ground.  They argued that the order violated the First Nations’ Treaty hunting rights. Chief Justice Finch, writing for the majority, affirmed the Supreme Court of British Columbia’s issuance of a stay for lack of consultation and accommodation but set aside the lower court’s accommodation order directing the B.C. government to protect a specific caribou herd.  He confirmed that judicial review was a correct forum to determine the scope of an aboriginal treaty right. He held that MEMPR was not limited by its statutory mandate so far as its duty to consult was concerned.  He found that the MEMPR was bound to take cognizance of the Treaty and “its true interpretation” even though its mandate did not include the authority to consider or accommodate First Nations issues. The Chief Justice reasoned that the Treaty was part of the legal and constitutional limits that the MEMPR was inherently bound to respect.  He also held that the chambers judge did not err in considering the specific location and species of the First Nations’ hunting practices.

In his opinion, the Chief Justice found that the duty to consult may include consideration of “historical context” if it is “essential to a proper understanding of the seriousness of the potential impacts” on Aboriginal treaty rights.  He held that consideration of such matters is acceptable if it is not an attempt to redress past wrongs, but rather recognition of an existing state of affairs.  Chief Justice Finch found that consideration of hypothetical long-term developments that flow from the decision under consideration may fall within the scope of the duty to consult as well.  He distinguished Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council because the decision under consideration in this case will have an adverse impact on a First Nation right, but the decision in Rio Tinto would not have. However, the Chief Justice set aside the specific accommodation order made by the chambers judge, despite finding that the remedial powers in the Judicial Review Procedure Act granted him sufficiently broad discretion to make the order.  Chief Justice Finch held that in past cases, courts have shown a reluctance to make specific accommodation orders so as not to impair further consultation.

Hinkson and Garson J.J.A. agreed to set aside the specific accommodation order, but disagreed on the scope of the duty to consult.  Justice Hinkson cited Rio Tinto in his concurrence for the proposition that the duty to accommodate does not oblige the Crown to consider any prior harms not causally related to the decision under consideration.  He did, however, acknowledge that historical context is relevant in considering existing conditions. In her dissent, Garson, J.A., agreed with Justice Hinkson about the duty to consult, but also took issue with the characterization of the treaty right. Pointing to precedent and the language of the Treaty, she reasoned that the protected right was one of hunting in general, not a species- or herd-specific right to hunt caribou.  Since other ungulates were still available for hunting by the West Moberly, Garson, J.A. reasoned that the impact of the permit approvals was less significant and therefore that reasonable accommodation had occurred.

May 25, 2011.
http://www.courts.gov.bc.ca/jdb-txt/CA/11/02/2011BCCA0247.htm

Diego Beltran, Marc Gibson & Kai Sheffield

R. v. Ladue, 2011 BCCA 101

The issue on this appeal was how s. 718.2(e) of the Criminal Code should be applied where an Aboriginal offender has breached a condition of a long-term supervision order. In 2003, the appellant was sentenced to three years’ imprisonment for breaking into a dwelling house and committing sexual assault. This was his fourth conviction for similar sexual offences, amongst approximately 40 prior convictions. He conceded the long-term offender designation sought by the Crown, and a seven-year supervision order was imposed. Following his release from custody in 2006, he was convicted of three breaches of the condition of the order that he abstain from consuming intoxicants, and was returned to custody. There was a delay in his release in 2009, which resulted in his inability to occupy a space in a Kamloops halfway house where he would have received the support of an Aboriginal elder. He was instead sent to a halfway house in downtown Vancouver, where he was immediately exposed to drugs. He tested positive for their use on several occasions, and was sentenced to three years’ imprisonment after pleading guilty to breaching the supervision order. He argued on appeal that the sentencing judge failed to give effect to his Aboriginal heritage and to s. 718.2(e) of the Code, and that the sentence was demonstrably unfit in the circumstances.

The appellant grew up in extremely disadvantaged circumstances. His parents had significant substance abuse problems, and passed away when he was very young. He initially lived with his grandparents, but was removed from his community and placed in a residential school at the age of five, where he was sexually abused. He began consuming alcohol at the age of nine, and had abused alcohol and/or illicit drugs for all but a six-year period since that time. His criminal convictions were closely linked to his substance abuse.

The majority of the Court of Appeal allowed the appeal on the basis that the sentencing judge failed to give sufficient weight to his Aboriginal heritage and to the principle of rehabilitation, leading her to impose an unfit sentence. The majority was of the view that, despite recognizing the appellant’s background and circumstances, she did not give “any tangible consideration” to his Aboriginal heritage, but, rather, gave undue weight to the principle of isolation of the offender. In this case, the appellant’s substance abuse was directly related to his treatment as an Aboriginal person. Despite his failed attempts to live in the community without breaching his supervision order, the majority noted that the appellant would need to learn how to manage his substance abuse in the community, and referred to his desire to do so.

The majority rejected the view that rehabilitation will play only a small role when sentencing long-term offenders, and found that the trial judge erred in concluding that it was no longer a factor for the appellant. They were of the view that the role of rehabilitation in sentencing will depend on the circumstances of the offender and is not dependent on his or her designation, and that the direction in s. 718.2(e) to exercise restraint with particular attention to Aboriginal offenders is still to be applied where the individual is a long-term offender.

The majority believed that a sentence of one year would properly reflect the principles and purpose of sentencing, allowing the appellant time to achieve sobriety and for correctional staff to find an appropriate place for him following his release.

 Chiasson J.A. dissenting, would have allowed the appeal in part. Although recognizing that the Aboriginal background of an offender is an additional factor to be taken into account by sentencing judges, he was of the view that there was no general rule necessitating an emphasis on rehabilitation when sentencing Aboriginal offenders. In the circumstances, the sentencing judge considered the appellant’s background, and Chiasson J.A. felt that it would be inappropriate for the Court to interfere with the weight the judge gave to the various factors she considered or her emphasis on the protection of the community. He would have reduced the appellant’s sentence to two years. The Supreme Court of Canada recently upheld the decision of the majority of the Court of Appeal, in reasons reported under R. v. Ipeelee, 2012 SCC 13.

March 8, 2011
Link to Decision

Julia Wilkes