Indigenous Flashcards
What do the courts need to balance
The right for indigenous ppl to self govern
The right for ppl subject to dm to have the sam ebenefits of non indigensous dms
what s of con act
what does it do?
S94(24) of con act
Gives the federal parliament exclusive jurisdiction over indians
Indians are any indigenous ppl, including inuits etc and any non-registered indians
Indian Act was passed pursuant to this, but only about registered indians- no provisions for metus pl
What are things under indian act
Bands
Chief/council
What are bands
State provision
Defined s2(1)
They can sue and be sued
Can take on legal responisbilites
Not an unincorporated association
Not a corporation
Is a creature of statute
Whats chief/council
State provision
S 74
Owes fiduciary duty to members
Can take action on behalf of memebrs
can make public and private deicisons
Public governed by FC-Air canada case
Private by provincal superior coirts
What are the 2 types of counsel under indian act
Custom counsel created y custom code
Counsel created prusuant under the Indian Act
Federal Court Jurisdiction
State c ase andf provision
Crowchild
FC has jurisdcition over any decision of a public nature of council/chief
S18(1) Federal courtsAct
Band councils are considered as federal counsil,comission or other tribunal
Expertise and indigenous bands
State cases
Vavilov
Patstion
Vavlov
: When conducting a reasonableness review, judges should be considerate of the specialised knowledge of a decision maker.
This demonstrated experience and expertise may also explain why a given issue is treated in less detail.
Pastion
Indigenous decision-makers are obviously in a better position than non-Indigenous courts to understand Indigenous legal traditions as they are sensitive to indigenous experience.
Deference must be given as a result.
NB: When looking at allegations of an unreasonable decision, the courts should read the submissions generously supplementing any apparent omission by looking at the record.
DOESNT MAKE IT FALL OUT OF THE VAVILOV REALM
FNEA
Creates an alternative elextion process than that under the indian act
COuncils can choose to opt out of indian act regime and adopt this
WHY?
State case as well
- Provides for longer time limits for chief and council, ie. 4 years rather than 2.
This allows for long-term planning and execution of projects. - Allows for a process where voters can challenge the results in court.
Rationale:
Wuttunee v. Whitford, 2023 FCA 18 (CanLII) p. 21
Held: If there is a contested election under the Indian Act, the Cabinet decides. (per section 79 of the Indian Act)
FNEA takes it out of the hands of the executive and puts the power into the federal court; it moves away from the antiquated and paternalistic approach to First Nations governance.
Contetation provisions
S35
S31
Wutunee
may contest the election of the chief on the ground that a contravention of a provision of this Act or the regulations is likely to have affected the result.
FNEA contestation
S16 and S17
Likely to have affected the result
state cases
- Opitz v. Wrzesnewskyj [2012] 3 SCR 76
Magic number test: The number of votes affected was greater than the margin of victory.
Example: If the election was close, ie. 10 votes difference but 12 votes were forged.
- Wuttunee v. Whitford, 2023 FCA 18 p. 52
Held: Demonstrate that the misconduct in question was sufficiently severe that the integrity of the election was “seriously corroded and compromised”.
s35
Gives the court the power to set aside/annul the election, if section 31 is established.
s31
An elector of a participating First Nation may, by application to a competent court, contest the election of the chief or a councillor of that First Nation on the ground that a contravention of a provision of this Act or the regulations is likely to have affected the result.
Factrs that influence s35 discreiton
Whitford v Chkita
Says factors
Also saus should be slowe to intervene and undermines democratic orosses
Nature and seriousness
FNEA specific
Held: If courts are too quick to intervene, it brings back the antiquated and paternalistic approach to First Nations governance that existed under the Indian Act.
Does charter apply
s32
Yes
its been lomg establishhed that the charter applies to indigenous band councils
Rationale for charter application
OG: CollinsCuz the power was conferred by statute therefore its an act of parliament
Controvery: Collins: Aboriginal right to self govern is inherent and wasnt granted by statute
New: Collins: Its not the source of the power, its the nature: any power that binds its people or individuals is subject tot eh charter.
Whats the duty of the crown
To consult and accomodate aboriginal ppl
Whars the duty to consult
Duty to consult:
Applies to actions mandated by the Crown but also to statutory decision-makers.
The federal government and indigenous people maintain a dialogue about decisions that may have a negative impact on aboriginal and treaty rights.
The government listens to the views/concerns and may modify a decision where possible.
Manitoba Metis Federation Inc v Canada (AG), 2013 SCC 14, at paras 65-66
Held: An unwritten constitutional principle is the honour of the crown.
Indigenous people live under the crown’s protection.
v
The duty to consilt may arise in environmental cases state csas
Haida Nation v BC, 2004 SCC 73
Facts: Concerned a transfer of Tree Farm licenses from one party to another; required Minister approval.
Haida Nation had a pending land claim and claimed the Aboriginal right to harvest red cedar in the area. However, the law at the time did not recognise this
Held: The government owes a duty to consult and accommodate the Haida people due to the “honour of the Crown.”
This duty arises even before the Haida prove their title and Aboriginal rights.
The potential harm to their heritage, if tree harvesting proceeds without their input, underscores the need for consultation and accommodation.
IS there a duty to consult in the leg process
styate case
Mikisew
The duty to consult applies to Crown conduct under enacted legislation, but not to the process of developing legislation.
Trigger test for duty to consult
State case and example
Rio Tinto Alcan v. Carrier Sekani Tribal Council, 2010 SCC 43
Held: The threshold is low for the 3 part trigger test:
The Crown must have “knowledge, actual or constructive, of a potential Aboriginal claim or right.”
The Crown must contemplate certain conduct that may engage a potential Aboriginal right.
The Crown’s decision or action must have the potential to adversely affect an Aboriginal claim or right.
Example:
Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks, 2022 ONSC 6859
Facts: Concerned an application to continue operations under a water-taking permit
Held: The application was only to continue operations, not to initiate new activities.
It did not trigger the duty to consult with the Mississauga First Nation.
The third element of the consultation test was not satisfied because there was no potential for novel or adverse impacts from the permit.
The process for taking water was a continuation of previously approved activities, not a change.
Can the duty to conslt be delegated
State case
Can delegate some duties,ieconsultation
But cannot delegate away the duty
Haida nation
Its the crown that owes a duty to aboriginal ppl, not the indistry or thrid parties
How cna duty be delegated
State case
Haida Nation v BC, 2004 SCC 73 p. 63
Held: The legislature can delegate the Crown’s duty to consult to a tribunal.
Governments can create regulatory systems to handle consultation requirements at different stages of decision-making about resources.
Can tribunals do the consultaiton
Haida
: A tribunal has only those powers that are expressly or implicitly conferred on it by statute.
The power to conduct consultation cannot be assumed from the ability to decide legal questions.
Must be prvided for in the statute
Inadequate consultation
HAmlet Clyde river
However, the NEB acts on behalf of the Crown when making a final decision on a project application.
The decision constitutes Crown action and could potentially trigger the duty to consult.
While the Crown may rely on steps by the regulatory agency to fulfil its duty to consult, the Crown always holds the ultimate responsibility for ensuring that the consultation is adequate.
If the regulatory process does not achieve adequate consultation, the Crown must supplement this.
Standard of review state cases
Cold water and roseay
Standard of review for the scope and existence of the duty is correctness
Everything else is reasonableness
