Indigenous Legal Issues

Nine parties brought motions to intervene in an action concerning the interpretation of the Robinson Huron Treaty and the boundaries of the plaintiff's reserve lands.

Eight of the proposed intervenors were neighbouring First Nations who are also signatories to the Treaty, while the ninth was an unincorporated litigation trust.

The Superior Court of Justice granted party intervenor status to the eight First Nations, finding they had a direct interest in the boundary dispute and could provide useful context without overwhelming the plaintiff's case.

The court imposed strict conditions on their participation to prevent undue delay.

The motion by the litigation trust was dismissed, as it was not a rights-holder itself and its participation would be duplicative and unduly prejudicial to the plaintiff.

On a statutory appeal under the Indian Act, the court held that the Registrar erred in denying registration and band list entry to a claimant seeking relief from historical sex-based discrimination arising from an ancestor's marriage to a non-Indian man before 1951.

The court found palpable and overriding error in the Registrar's refusal to give independent weight to oral family history, in requiring corroboration from sparse official records, and in assessing pieces of evidence in isolation rather than cumulatively.

The court further held that the unknown-ancestor provision in s. 5(6) applied to an ancestor whose name on a baptismal record was effectively indecipherable and historically untraceable.

Drawing reasonable inferences in the claimant's favour from the totality of the historical and genealogical evidence, the court reversed the Registrar and ordered registration and addition to the Wiikwemkoong Band List.

On a cross-border parenting jurisdiction motion involving parallel proceedings in Ontario and the Navajo Nation Family Court, the court held that the child was habitually resident in Ontario at the commencement of the Ontario application under s. 22 of the Children’s Law Reform Act.

Applying the statutory framework explained in Dunmore, the court found the child was residing in Ontario with the father's consent or implied consent and that Ontario had become the child's home rather than a temporary visit.

The court declined to refuse jurisdiction under s. 25, notwithstanding the advanced state of the foreign proceeding and the child's cultural ties to the Navajo Nation, because substantial evidence concerning best interests was in Ontario and neither parent sought the child's removal from Ontario.

The father's jurisdiction motion was dismissed.

The applicant brought a motion for temporary care and custody of a prematurely born infant.

The mother, who identifies as First Nation, has a long-standing history of substance abuse but had recently engaged in residential treatment and visited the child daily in the hospital.

The court found that the applicant had completely overlooked the child's Indigenous heritage and failed to provide culturally appropriate services, triggering the application of the federal Act respecting First Nations, Inuit and Métis children, youth and families.

Despite the mother's recent progress, the court granted the temporary care order, finding that the infant's need for constant care and the mother's recent drug use meant a supervision order would not adequately protect the child.

The court ordered substantial access for the mother and directed the applicant to provide culturally appropriate services and explore a file transfer to an Indigenous agency.

The Ontario Review Board held a hearing to determine whether the accused, who was found not criminally responsible for firearms offences, continues to pose a significant threat to public safety.

The accused has diagnoses of schizophrenia and severe cannabis use disorder.

Applying Gladue principles, the Board accepted the joint submission of the parties and found that the accused remains a significant threat.

The Board ordered the continuation of the existing Detention Order at the hospital, with privileges up to and including residing in supervised accommodation in the community.

The Ontario Review Board conducted an annual review and a restriction of liberty (ROL) review for an accused found not criminally responsible for various offences including threatening death.

The accused had absconded from the hospital and used methamphetamine, leading to a significant restriction of his liberty upon return.

The Board found the ROL was necessary and appropriate.

Applying the Winko test, the Board concluded the accused continues to pose a significant threat to public safety due to schizophrenia, substance use disorder, and risk of absconding.

The Board ordered a continued detention disposition, incorporating recommendations from a Gladue Report for culturally appropriate residential treatment programming.

The appellants, registered Indians who resided and worked in Winnipeg, appealed reassessments of their 2012 and 2013 taxation years.

They claimed their employment income was exempt from tax under section 87 of the Indian Act because their employer, a corporation owned by Tribal Councils, was resident on a reserve and provided benefits to First Nations.

Applying the connecting factors test, the court weighed the residence of the employer against the fact that the appellants resided, worked, and were paid in Winnipeg.

The court concluded that the location of the employment duties in Winnipeg was the predominant connecting factor, outweighing the employer's connection to a reserve.

The appeals were dismissed.

The applicant sought location approval for a proposed dam and hydroelectric facility under the Lakes and Rivers Improvement Act.

The Ministry of Natural Resources and Forestry issued a Notice of Intention to Refuse Location Approval, citing uncertainty regarding areas to be flooded and insufficient hydrological data.

The applicant requested an inquiry.

The Inquiry Officers found that the applicant's hydraulic modelling was reliable and sufficient to predict that water level changes would remain within natural fluctuations, resulting in negligible biological impacts.

The Inquiry Officers also found the applicant's Aboriginal consultation efforts to be adequate.

Concluding that the intended refusal was not fair, sound, or reasonably necessary to achieve the purposes of the Act, the Inquiry Officers recommended that the Minister approve the location of the proposed dam subject to conditions.

The applicant alleged discrimination with respect to contracts and employment because of creed, reprisal, and threat of reprisal, claiming she was prevented from participating in a Consultation Committee meeting after her employment with the respondent First Nation was terminated.

The Tribunal directed a summary hearing to determine if the matter fell within its jurisdiction.

Applying the functional test from NIL/TU,O, the Tribunal found that the nature, operations, and habitual activities of the Committee and the First Nation relate to First Nations governance, which falls squarely within exclusive federal jurisdiction over 'Indians and lands reserved for the Indians'.

The Application was dismissed for lack of jurisdiction.