Indigenous Legal Issues - OCA

The appellant appealed two orders finding a joint venture agreement for a convenience store on First Nation land enforceable and granting the respondent permanent possession of the business.

The appellant argued the agreement was void under s. 28 of the Indian Act, violated the First Nation's Land Code, and contained a forged redaction.

The Court of Appeal dismissed the appeal, finding the agreement did not directly grant land possession, the possession order was subject to First Nation approval, and the application judge reasonably relied on expert handwriting evidence to find the document authentic.

The appellants appealed a trial judgment declaring that approximately 1.4 miles of coastline (the Disputed Beach) forms part of the Saugeen Indian Reserve No. 29 under Treaty 72 of 1854.

The trial judge found that the Crown breached its fiduciary duty and acted dishonourably when a surveyor improperly excluded the beach from the reserve boundaries.

The Court of Appeal dismissed the appeals, finding no errors in the trial judge's application of treaty interpretation principles or her assessment of the historical record.

The Court also upheld the trial judge's decision to deny the bona fide purchaser for value defence to private landowners, prioritizing the First Nation's constitutionally protected treaty rights.

A cross-appeal by Canada regarding the allocation of pre-Confederation liability was allowed and referred to the next phase of the trial.

The appellants, the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation, appealed the dismissal of their claim for Aboriginal title to submerged lands in Lake Huron and Georgian Bay, and their claim for breach of fiduciary duty regarding the Crown's failure to protect their lands from settler encroachment under Treaty 45 ½.

The Court of Appeal upheld the trial judge's dismissal of the broad Aboriginal title claim but remitted the matter to determine if title could be established over a smaller, specific area.

The Court affirmed that the Crown breached its treaty promise and the honour of the Crown by failing to diligently protect the lands, but agreed no fiduciary duty was owed.

The Court also allowed the municipalities' cross-appeal, dismissing the action against them on the basis that a constructive trust over municipal roads was an inappropriate remedy.

The appellant, a kin caregiver for a First Nations child, appealed an order dismissing a child protection proceeding and denying her motion to be added as a party.

The motion judge had dismissed the proceeding based on a customary care agreement signed by the biological parents, the child's aunt, the First Nation, and the Children's Aid Society, which excluded the appellant.

The Court of Appeal allowed the appeal, finding that the appellant met the statutory definition of a 'parent' under the Child, Youth and Family Services Act and was entitled to party status.

The Court further held that the proceeding could not be dismissed on consent without the appellant's participation and a proper analysis of the child's best interests.

The Crown appealed the Stage One and Stage Two decisions regarding the interpretation of the Robinson-Huron and Robinson-Superior Treaties of 1850.

The trial judge found that the Treaties' augmentation clause imposed a mandatory obligation on the Crown to increase the perpetual annuities if the economic circumstances of the ceded territories warranted it, without a hard cap of $4 per person.

The Court of Appeal unanimously upheld the trial judge's conclusion that the Crown has an obligation under the honour of the Crown to diligently implement the augmentation promise and that its discretion is not unfettered.

The Court unanimously set aside the trial judge's finding of an ad hoc fiduciary duty and her specific remedial directives regarding a 'fair share' of net resource revenues.

The Court also unanimously dismissed the Crown's limitations defence.

The Court split on the standard of review for historical treaties and whether the trial judge made extricable errors of law in her interpretation, but the majority upheld her core interpretation of the augmentation clause.

The moving parties, who had cared for an Indigenous child since shortly after birth, sought a stay of a Superior Court decision that struck their custody application and permitted the children's aid society to relocate the child to a different province.

The Court of Appeal granted the stay pending the final determination of the appeal, finding that there was a serious issue to be tried regarding the validity of out-of-court customary care agreements and the best interests of the child.

The court concluded that the child would suffer irreparable harm if removed from her long-term caregivers before the appeal was resolved, and that the balance of convenience favoured maintaining the current placement with conditions to ensure ongoing connection to the child's Indigenous culture and family.

The appellant pleaded guilty to possession of a loaded restricted firearm and possession of a restricted firearm knowing possession is unauthorized.

He appealed his four-year sentence, arguing the sentencing judge erred in assessing an expert report regarding his post-traumatic stress disorder and in applying Gladue factors.

The Court of Appeal found the sentencing judge erred in assessing the expert's report, which was relevant to the circumstances of the offences and rehabilitation prospects.

The appeal was allowed and the sentence was reduced to three and a half years.

The appellant pled guilty to robbery and using an imitation firearm and was sentenced to a global custodial sentence of 23.5 months after pre-sentence custody credit.

He appealed the sentence, arguing the sentencing judge erred in applying Gladue principles, failed to consider rehabilitation, and that the sentence should be reconsidered due to the Sharma decision and COVID-19 lockdowns.

The Court of Appeal dismissed the appeal, finding the sentencing judge appropriately applied Gladue principles, considered rehabilitation, and already accounted for COVID-19 hardships.

A conditional sentence was unavailable as the sentence was not less than two years.

The appellants, claimants who suffered abuse at St. Anne's Indian Residential School in Ontario, filed a Request for Directions (RFD) regarding the respondent's disclosure obligations under the Indian Residential School Settlement Agreement (IRSSA).

The Eastern Administrative Judge (the Ontario Supervising Judge) recused himself and directed that the RFD be heard by the British Columbia Supervising Judge, relying on the Court Administration Protocol (CAP).

The appellants appealed, arguing the RFD must be heard in Ontario.

The Court of Appeal allowed the appeal, finding that the CAP contains mandatory language requiring RFDs involving relief for a particular class to be directed to the supervising court with jurisdiction over that class.

As the appellants are members of the Ontario class, the Ontario Superior Court of Justice has jurisdiction.

The matter was remitted to the Chief Justice of the Ontario Superior Court of Justice to assign a different judge.

The moving party, the National Centre for Truth and Reconciliation, sought a stay pending appeal of orders permitting the destruction of the SADRE database, which contains records from the Indian Residential Schools Settlement Agreement.

The moving party also sought procedural directions, including expediting the appeal and guidance on a sealing order.

The Court of Appeal dismissed the motion for a stay, finding it unnecessary as the database was preserved until December 2020 and the appeal could be expedited.

The court granted the procedural relief, expediting the appeal, allowing an extended factum, and providing directions on the scope of the sealing order.

The appellant, a young Indigenous woman, pleaded guilty to importing cocaine.

The sentencing judge rejected her s. 15 Charter challenge to s. 742.1(c) of the Criminal Code, which precluded a conditional sentence for her offence, and imposed a 17-month custodial sentence.

On appeal, the appellant argued that s. 742.1(c) and (e)(ii) violated ss. 7 and 15 of the Charter.

The Court of Appeal allowed the appeal, finding that the provisions violated s. 15 by discriminating against Aboriginal offenders and s. 7 by being overbroad.

The provisions were struck down, and a sentence of time served was substituted.

The moving parties, survivors of the St. Anne's Indian Residential School, appealed an order directing their Request for Directions to be heard by a judge of the British Columbia Supreme Court rather than the Ontario Superior Court of Justice.

They brought a motion for a stay of the transfer order pending appeal and to expedite the appeal.

The Court of Appeal determined the transfer order was final for the purposes of appeal, applied the RJR-MacDonald test rather than the strong cause approach, and granted the stay, finding a serious question of interpretation regarding the Court Administration Protocol, potential for irreparable harm from inconsistent results, and that the balance of convenience favoured a stay.

The appellant moved for a stay of an administrative judge's order pending the disposition of an appeal and cross-appeal regarding a claim under the Independent Assessment Process of the Indian Residential Schools Settlement Agreement.

The claimant and the Independent Counsel Group did not oppose the stay.

The Court of Appeal granted the stay, finding that there was a serious issue to be tried regarding the scope of review of factual errors, that irreparable harm to the public interest would result without a stay, and that the balance of convenience favoured a stay.

The court also ordered that the hearing of the appeal and cross-appeal be expedited.

The moving parties sought to review an order of a single judge dismissing their motion to expedite the hearing of two leave to appeal motions.

The underlying matters related to a Crown wardship order and a Habeas Corpus application.

The moving parties argued that as Aboriginal people, they had a right to have matters heard in a court of equity applying Aboriginal law, and that the children's aid society had no authority to apprehend their children.

The Court of Appeal dismissed the motion, finding no basis to interfere with the single judge's procedural ruling that the matters were not properly before the court.

The moving party, a debtor company in receivership, sought leave to appeal an order approving the sale of its assets by a court-appointed receiver.

The moving party argued that the receiver acted unfairly, that the debtor's management retained the right to negotiate a restructuring, and that the receiver failed to consult with affected Aboriginal communities.

The Court of Appeal dismissed the application for leave to appeal, finding that the debtor's parallel negotiations contravened the receivership order, the receiver had exclusive authority to market the assets, and the Aboriginal consultation issue was raised too late and lacked an adequate evidentiary record.

The Catholic entities appealed an order allowing residential school survivors to archive their Independent Assessment Process (IAP) documents with the National Centre for Truth and Reconciliation without the consent of alleged perpetrators.

Canada cross-appealed, arguing the IAP documents were government records subject to federal archiving and privacy legislation and could not be destroyed.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that only claimants have the right to decide whether to archive their documents.

The Court further held that the IAP documents are not government records because they are not under government control, and upheld the supervising judge's order to destroy the documents after a 15-year retention period to protect the claimants' privacy and confidentiality.

The respondents' family members were killed in a motor vehicle collision caused by a driver fleeing a high-speed pursuit by the Akwesasne Mohawk Police Service.

The respondents sued the police service and the governments of Ontario, Quebec, and Canada, alleging vicarious liability and direct negligence.

The governments appealed the dismissal of their summary judgment motions and the granting of the respondents' motion to amend their pleadings.

The Court of Appeal allowed the appeals, finding that the quadripartite policing agreement did not create a relationship sufficiently close to impose vicarious liability on the provinces, and that the governments owed no private law duty of care to the deceased based on a 1991 audit report.

The appellants appealed a decision ordering Crown wardship with access to the maternal grandmother for two Aboriginal children.

The children had been apprehended and placed with a non-Aboriginal foster family for several years.

The appellants argued the trial judge failed to give sufficient weight to the children's First Nations status.

The Court of Appeal dismissed the appeal, finding that while Aboriginal heritage is an important consideration under the Child and Family Services Act, it does not override the paramount consideration of the children's best interests.

The court upheld the finding that removing the children from their established foster family would be damaging, and that their cultural connection could be maintained through access visits.

The plaintiffs, members of the Grassy Narrows First Nation, brought an action alleging that Ontario's issuance of a forestry licence in the Keewatin portion of Treaty 3 lands violated their treaty harvesting rights.

The trial judge found that Ontario could not take up lands in the Keewatin territory without Canada's approval.

The Court of Appeal allowed the appeal, holding that upon the transfer of beneficial ownership of the Keewatin lands to Ontario in 1912 pursuant to s. 109 of the Constitution Act, 1867, Ontario acquired the right to take up lands under the treaty without federal approval.

The Court found that the trial judge erred in interpreting the treaty as requiring a two-step authorization process and in finding that s. 91(24) gave Canada a continuing supervisory role over provincial land use.

The appellants appealed a Divisional Court order that set aside the conditional certification of their proposed class action against Canada regarding the placement of Aboriginal children in non-Aboriginal foster care.

The Court of Appeal upheld the Divisional Court's finding that the case management judge erred by conditionally certifying the action when the statement of claim did not disclose a viable cause of action.

The Court also agreed that the certification motion should be heard by a different judge to avoid the original judge sitting in review of his own decision.

However, the Court allowed the appeal regarding costs, quashing the Divisional Court's costs award because it failed to consider the public interest and novel legal issues raised by the case.