Indigenous Legal Issues

The appellants, comprising children of residential school attendees and estates of deceased attendees, appealed an order striking their claims against the federal Crown and other defendants.

The Court of Appeal allowed the appeal in part, reinstating the secondary plaintiffs' claim for breach of fiduciary duty against the federal Crown, finding it was not plain and obvious that the duty did not extend to them despite not being born at the time of the alleged breaches.

However, the Court upheld the striking of the Family Law Act claims, as the Act does not operate retroactively, and the estate claims, which were statute-barred under the Trustee Act.

Two Indian bands, the Wewaykum (Campbell River) and Wewaikai (Cape Mudge), claimed each other's reserve lands, alleging the federal Crown breached its fiduciary duty during the reserve creation process in the late 19th and early 20th centuries.

Both bands sought declarations and equitable compensation.

The Supreme Court of Canada dismissed the appeals, holding that the Crown fulfilled its fiduciary obligations by acting with loyalty, good faith, and ordinary prudence.

The Court found that both bands had historically acknowledged the other's entitlement to their respective reserves, making equitable relief inappropriate due to laches and acquiescence.

Furthermore, the Court ruled that the bands' claims were statute-barred by the applicable limitation periods.

The appellant appealed a decision regarding her entitlement to Indian status, alleging the Registrar unconstitutionally presumed her unknown paternal grandfather was not an Indian.

The Court of Appeal dismissed the appeal, finding the Registrar simply applied the Indian Act and did not employ the alleged presumption.

The Court noted the appellant could still challenge the constitutionality of the Indian Act and the Registrar's decision in separate proceedings.

The appellants claimed that lands set aside for the Ross River Band in the Yukon Territory constituted a reserve under the Indian Act, entitling them to a tax exemption.

The Supreme Court of Canada held that no reserve was legally created because there was no intention to create a reserve on the part of Crown agents with the authority to bind the Crown.

The Court found that while lands were set aside for the band's use, the statutory framework and royal prerogative require both an act of setting apart and a clear intention to create a reserve, which was absent in this case.

The appellant mother, a member of the Cree First Nations, appealed a decision denying her access to her six-year-old child, who had been a Crown ward in non-Indigenous foster care since she was three months old.

The mother sought access to instruct the child about her Cree culture and heritage.

The Court of Appeal dismissed the appeal, finding that while the mother's intentions were positive, the proposed access would disrupt the child's secure and loving foster family unit and would not be in the child's best interests.

The appellant First Nation challenged the constitutionality of provisions in British Columbia's Heritage Conservation Act that allowed the Minister to issue permits authorizing the alteration or destruction of aboriginal heritage objects, specifically culturally modified trees.

The appellants argued the provisions were ultra vires the province as they intruded on the federal power over Indians and lands reserved for Indians.

The Supreme Court of Canada held that the impugned provisions were valid provincial legislation falling within the province's jurisdiction over property and civil rights.

The Court found the legislation did not single out aboriginal peoples or impair their status, but rather established a balanced scheme for heritage conservation that applied generally across the province.

The Osoyoos Indian Band sought to tax lands within its reserve that had been taken by the Province of British Columbia for an irrigation canal pursuant to an Order in Council under s. 35 of the Indian Act.

The Town of Oliver, which operated the canal, objected to the assessment.

The Supreme Court of Canada held that the Order in Council was ambiguous and should be interpreted as granting only a statutory easement, not a fee simple interest, in accordance with the Crown's fiduciary duty to minimally impair the Indian interest in reserve land.

Consequently, the lands remained 'in the reserve' and were subject to the Band's taxation jurisdiction under s. 83(1)(a) of the Indian Act.

The applicant union filed an application for certification under the construction industry provisions of the Labour Relations Act, 1995.

The responding party and the intervenor, Fort William First Nation, argued that the Board lacked jurisdiction to conduct a representation vote because the project was located on First Nation lands, asserting jurisdiction belonged to the Canadian Industrial Relations Board.

The Board deferred the jurisdictional arguments to be heard after the vote and directed that a representation vote be taken among the eligible employees in the proposed bargaining unit.

The respondent, a bingo hall manager on a First Nation reserve, was acquitted of keeping a common gaming house after continuing operations despite the revocation of a provincial gaming licence.

The trial judge acquitted the respondent, finding that criminal law could not be used to enforce compliance with a provincial regulatory scheme.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the trial judge erred in law by failing to recognize that the prohibition of gambling except as provincially regulated is valid criminal law.

The acquittal was set aside and a new trial was ordered.

Following the release of reasons disposing of the appeals regarding an Indigenous land claim, the Court of Appeal determined the costs of the proceedings.

The court ordered the appellant to pay 50% of the federal and provincial crowns' costs of the appeals on a party and party basis, noting the federal crown's unsuccessful arguments regarding the validity of the land surrender.

The class representatives, including the railway company, were awarded 100% of their costs for both the summary judgment motions and the appeals on a party and party basis.

The court directed that all costs be assessed rather than fixed.

The respondent, a Mohawk of Akwesasne, crossed the international border from the United States into Canada with goods intended for trade with other First Nations and claimed an aboriginal right exempting him from paying customs duties.

The Supreme Court of Canada held that the claimed aboriginal right to bring goods across the St. Lawrence River for the purposes of trade was not established.

The evidence did not demonstrate that such trade was an integral, defining feature of the pre-contact Mohawk society.

The appeal was allowed, and the respondent was required to pay the applicable customs duties.

The respondents, who are Métis, shot and killed a bull moose without a licence and were charged under the Game and Fish Act.

They claimed an aboriginal right to hunt for food under s. 35 of the Constitution Act, 1982.

The trial judge and the Superior Court judge found that the respondents had an aboriginal right to hunt for food that was infringed by the Act, and that the infringement was not justified.

The Court of Appeal dismissed the Crown's appeal, holding that the Van der Peet test must be modified for Métis claims to account for their post-contact ethnogenesis.

The Court found that hunting was an integral practice of the historic Métis community at Sault Ste.

Marie, that a contemporary community exists in continuity with the historic one, and that the respondents are members.

The infringement was not justified, but the Court granted a one-year stay of the judgment to allow the government to develop a new regulatory regime.

An Indigenous band appealed from a summary judgment disposition concerning reserve lands sold in the 19th century without a lawful formal surrender.

The Court of Appeal held that there had been no surrender and that the claim was not barred by statutory limitation periods, but concluded that declaratory and possessory relief should nevertheless be refused.

The court applied public law discretion and equitable doctrines, emphasizing the band's historical acquiescence, the extraordinary delay in asserting the land claim, and the reliance of innocent third-party landowners who had held and developed the properties for generations.

The band was left to pursue its damages claims against the Crown.

The applicant, a First Nations Constable, sought judicial review of the termination of his appointment by the Commissioner of the Ontario Provincial Police.

The Commissioner had terminated the appointment on the basis that the applicant's employment as a Band Constable had been terminated by the Band Council, without providing details of the alleged misconduct or consulting further.

The Divisional Court found that the Commissioner failed to comply with the statutory duties under subsections 54(4) and (7) of the Police Services Act, which require consultation and the provision of reasonable information regarding the reasons for termination.

The court quashed the termination and remitted the matter to the Commissioner to be dealt with according to procedural fairness.

The applicant's request for a declaration of entitlement to wages was deferred to a separate civil action.

The Musqueam Indian Band surrendered reserve land to the Crown for leasing.

The land was subdivided, serviced, and leased to individuals for 99 years.

The leases provided for rent reviews, stating rent should be 6 percent of the 'current land value' of 'unimproved lands'.

The parties disagreed on whether 'current land value' meant fee simple value off-reserve or leasehold value on-reserve, and whether 'unimproved' meant unserviced.

The Supreme Court of Canada held that 'current land value' refers to the hypothetical fee simple value of the land on the reserve, which requires a 50 percent discount from comparable off-reserve land to account for Indian reserve features.

The Court also held that 'unimproved' means unserviced, so servicing costs must be deducted from the land value.

The appellants, non-band aboriginal communities, challenged their exclusion from the proceeds of Ontario's first reserve-based commercial casino (the First Nations Fund).

The province had restricted the distribution of the fund to First Nations communities registered as bands under the Indian Act.

The Supreme Court of Canada held that the exclusion did not violate s. 15(1) of the Charter, as the casino project was a targeted ameliorative program designed to support the self-reliance and self-government of First Nations bands, and the exclusion did not demean the appellants' human dignity.

The Court also held that the province did not act ultra vires its jurisdiction under s. 91(24) of the Constitution Act, 1867, as it was simply exercising its spending power.

Appeal from a Divisional Court order quashing a municipal restructuring commission’s final proposal amalgamating several municipalities and annexing unorganized territory.

The Court of Appeal held that judicial review of a restructuring commission performing a political and legislative function is narrowly confined to whether the commission acted according to law, and does not permit the court to revisit the merits of restructuring policy.

The Divisional Court erred in finding illegality, inadequate consultation with First Nations as a free-standing jurisdictional defect, failure to apply the former OMB 'three filters' test, an impermissible 'tax grab', and bias.

The cross-appeal seeking a declaration under s. 35(1) of the Constitution Act, 1982 was dismissed without prejudice because the record was inadequate for determination of the constitutional issue.

Several Indigenous moving parties sought leave to intervene in multiple appeals concerning Aboriginal rights and title issues.

The court held that three of the moving parties had a sufficient interest in the outcome and could usefully add to the issues, and granted intervention on strict conditions, including that the existing record would stand and a single factum be delivered.

A separate moving party seeking intervention primarily to challenge portions of Ontario's factum was refused leave because the court was not persuaded it would add anything materially new to the arguments already to be made by existing parties.

No costs were ordered.

The Crown sought special leave to appeal from a judgment dismissing its appeal in a provincial offences prosecution arising from unlawful hunting and possession of moose parts.

The respondents had succeeded below on the basis that members of the Métis community of Sault Ste.

Marie held an Aboriginal right to hunt protected by s. 35(1) of the Constitution Act, 1982.

The court held that the proposed appeal raised important questions of law of first impression concerning the application of s. 35(1) to Métis people, that a full evidentiary record existed, and that the public interest favoured appellate review despite submissions urging political resolution and concerns about delay.

Special leave to appeal was granted.

The appellant province appealed a judgment concerning the designation of First Nations bands as delivery agents under the Ontario Works Act.

The Court of Appeal resolved the dispute narrowly by declaring that, in light of the 1965 Welfare Agreement, the minister's powers under s. 38 had to be exercised with the consent of the band.

The court set aside the judgment below, established a process by which bands could indicate non-consent and obtain immediate revocation of designation, and left existing designations temporarily in place pending that choice.

The court expressly declined to determine the broader constitutional issues addressed below.