Indigenous

Question 1

What do the courts need to balance

Answer 1

The right for indigenous ppl to self govern
The right for ppl subject to dm to have the sam ebenefits of non indigensous dms

Question 2

what s of con act
what does it do?

Answer 2

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

Question 3

What are things under indian act

Answer 3

Bands
Chief/council

Question 4

What are bands
State provision

Answer 4

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

Question 5

Whats chief/council
State provision

Answer 5

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

Question 6

What are the 2 types of counsel under indian act

Answer 6

Custom counsel created y custom code
Counsel created prusuant under the Indian Act

Question 7

Federal Court Jurisdiction
State c ase andf provision

Answer 7

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

Question 8

Expertise and indigenous bands
State cases

Answer 8

Vavilov

Patstion

Question 9

Vavlov

Answer 9

: 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.

Question 10

Pastion

Answer 10

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

Question 11

FNEA

Answer 11

Creates an alternative elextion process than that under the indian act
COuncils can choose to opt out of indian act regime and adopt this

Question 12

WHY?
State case as well

Answer 12

1. 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.
2. 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.

Question 13

Contetation provisions

Answer 13

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.

Question 14

FNEA contestation

Answer 14

S16 and S17

Question 15

Likely to have affected the result
state cases

Answer 15

1. 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.

2. 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”.

Question 16

s35

Answer 16

Gives the court the power to set aside/annul the election, if section 31 is established.

Question 17

s31

Answer 17

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.

Question 18

Factrs that influence s35 discreiton

Answer 18

Whitford v Chkita

Says factors
Also saus should be slowe to intervene and undermines democratic orosses
Nature and seriousness

Question 19

FNEA specific

Answer 19

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.

Question 20

Does charter apply

Answer 20

s32
Yes
its been lomg establishhed that the charter applies to indigenous band councils

Question 21

Rationale for charter application

Answer 21

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.

Question 22

Whats the duty of the crown

Answer 22

To consult and accomodate aboriginal ppl

Question 23

Whars the duty to consult

Answer 23

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

Question 24

The duty to consilt may arise in environmental cases state csas

Answer 24

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.

Question 25

IS there a duty to consult in the leg process
styate case

Answer 25

Mikisew
The duty to consult applies to Crown conduct under enacted legislation, but not to the process of developing legislation.

Question 26

Trigger test for duty to consult
State case and example

Answer 26

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.

Question 27

Can the duty to conslt be delegated

State case

Answer 27

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

Question 28

How cna duty be delegated
State case

Answer 28

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.

Question 29

Can tribunals do the consultaiton

Answer 29

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

Question 30

Inadequate consultation

Answer 30

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.

Question 31

Standard of review state cases

Answer 31

Cold water and roseay

Standard of review for the scope and existence of the duty is correctness

Everything else is reasonableness