Indigenous Legal Issues - SCJ

The proposed intervenor, Shoal Lake #40 First Nation, brought a motion for leave to intervene as an added party or friend of the court in an action for damages brought by Iskatewizaagegan No. 39 Independent First Nation against the City of Winnipeg and the Province of Ontario.

The underlying action sought compensation for the taking of water from Shoal Lake pursuant to a 1913 Order in Council.

The court dismissed the motion, finding that the proposed intervenor had no direct interest in the plaintiff's specific claim for damages, that its participation would cause delay, and that it was free to commence its own action for compensation.

The Children's Aid Society of Ottawa applied for an order placing a two-year-old Inuit child in extended society care with a view to adoption.

The mother struggled with long-standing addiction and mental health issues, lacked stable housing, and failed to consistently visit the child or engage with support services.

The father resided in Nunavut and was unable to care for the child.

The court found the child in need of protection due to the risk of physical and emotional harm.

Applying the best interests factors under the CYFSA and the federal FNIM Act, the court ordered extended society care with a view to adoption, prioritizing placement with an Inuit family to maintain cultural continuity.

Access was granted to both parents at the Society's discretion.

The Requestors, former students of St. Anne's Indian Residential School, brought a Request for Directions to determine whether their 2018 civil action against Canada and their former lawyers for professional negligence and breach of the Indian Residential Schools Settlement Agreement (IRSSA) could proceed in the Superior Court of Justice.

Canada argued the claims were exclusively governed by the Independent Assessment Process under the IRSSA.

The court held that the IRSSA did not oust the jurisdiction of the Superior Court of Justice, and the administrative protocol for the IRSSA was procedural, not jurisdictional.

The court directed that the civil action proceed in the Superior Court of Justice.

The Children's Aid Society brought a child protection application regarding two Indigenous children with severe asthma, whose health was compromised by the mother's substance abuse and exposure to cigarette smoke.

The Society initially sought a supervision order but later requested to withdraw the application in favour of a customary care agreement placing the children with the maternal grandfather.

The court found the agreement's provision for unsupervised access by the mother did not meet the children's best interests.

The court ordered the children placed with the customary care providers under an interim supervision order, with supervised access for the mother subject to conditions regarding substance use and smoke exposure.

The accused pleaded guilty to manslaughter for her role in the brutal beating death of a vulnerable young woman.

The court weighed the significant aggravating factors, including the prolonged group assault and degrading treatment of the victim's body, against the mitigating factors, which included the accused's guilty plea, remorse, and profound Gladue factors stemming from intergenerational trauma and abuse.

The court sentenced the accused to 8 years' imprisonment, less enhanced credit for pre-sentence custody, emphasizing denunciation and deterrence while acknowledging the need for rehabilitation.

The applicant First Nation brought an application for possession of a residential unit on the reserve and payment of rent arrears against the respondents.

The respondents failed to defend the application.

The court found it had jurisdiction to hear the matter as a private law contract, noting that provincial landlord and tenant legislation does not apply on reserves.

The court granted the application, finding multiple breaches of the lease agreement including rent arrears, unlawful use of the premises, changing locks, and continuing to reside in the premises after a fire rendered it uninhabitable.

The respondents were ordered to vacate and pay $4,900 in arrears.

In a child protection proceeding, the court held a focused hearing to determine whether three children were First Nations, Inuk or Métis children under the Child, Youth and Family Services Act.

The court found that the two older children were First Nations children based on their own self-identification and ancestral connection through their father.

The youngest child, who had a different father and no paternal Indigenous ancestry, was also found to be a First Nations child based on her sibling relationship with the older children, despite the court's concerns regarding the mother's standalone claim of Indigenous identity.

Dilico Anishinabek Family Care appealed an order dismissing its motion to strike a custody application brought by the foster parents of an Indigenous child.

The child had been placed with the foster parents under an alternative care agreement, while a customary care agreement was in place with the child's First Nation.

The Superior Court of Justice allowed the appeal, finding that the motion judge erred in concluding that out-of-court customary care agreements fall outside the CYFSA.

The court held that the applicants were foster parents and thus prohibited from bringing a custody application under the CLRA, and that deference was owed to the placement decision of the agency acting under the authority of the First Nation.

The moving First Nation sought interlocutory relief to restrain mining exploration activities within a culturally and spiritually significant area of its traditional territory and to prevent approval of a separate exploration permit application.

The court held that interlocutory declaratory relief against the Crown and the Director was barred by statute, and that relief against another prospector was premature while his permit application remained on temporary hold.

Applying the RJR-MacDonald framework in the context of asserted Aboriginal and treaty rights and the Crown’s duty to consult, the court found serious issues respecting meaningful consultation and potential infringement of s. 35 rights, irreparable harm to sacred, burial, harvesting, and cultural sites, and a balance of convenience favouring preservation of the status quo.

An interim injunction was granted against the permit-holder companies, and the moving party was relieved from the usual undertaking as to damages.

The court reviewed and approved the first interim report of the Independent Special Advisor (ISA) appointed to review Independent Assessment Process (IAP) claims by former students of St. Anne's Indian Residential School.

The ISA's mandate was to determine if undisclosed OPP investigation documents could have materially affected the compensation paid to claimants.

The court approved the methodology and progress detailed in the report and directed the submission of a further interim report by the end of the year.

Ontario brought a motion to quash an application by the Thessalon First Nation regarding the size of its reserve under the Robinson-Huron Treaty of 1850.

Ontario argued the complex historical and treaty issues required a trial rather than an application.

The court agreed that the matter required a proper evidentiary foundation and ordered the application converted to an action under Rule 38.10(1)(b), with a staged litigation process to follow.

The applicant, a Near Band, challenged the jurisdiction of an arbitrator to hear a dispute arising from a limited partnership agreement concerning the distribution of gaming revenues.

The applicant argued it was not bound by the agreement because the individual who signed it on its behalf lacked authority.

The Superior Court of Justice, treating the application as a hearing de novo, found that the individual had apparent authority, no other person held themselves out as Chief at the time, and the applicant had accepted benefits under the agreement for six years.

The application was dismissed, and the arbitrator was found to have jurisdiction.

The Saugeen Ojibway Nation (SON) brought two actions against the Crown and several municipalities.

In the Aboriginal Title Claim, SON sought a novel declaration of Aboriginal title to a large portion of the submerged lands in Lake Huron and Georgian Bay.

The court dismissed this claim, finding that while SON had a spiritual connection to the water and relied on fishing, they did not establish sufficient and exclusive physical occupation of the claimed submerged lands at the time of British sovereignty in 1763.

In the Treaty Claim, SON alleged that the Crown breached Treaty 45½ (1836) by failing to protect the Bruce Peninsula from settler encroachments, and breached duties during the negotiation of Treaty 72 (1854).

The court found that the Crown breached the honour of the Crown by failing to diligently fulfill its promise to protect the Peninsula from squatters, and by inappropriate conduct during the August 1854 treaty negotiations.

However, the court dismissed the claims for breach of fiduciary duty.

The court also declared that Treaty 72 did not extinguish SON's harvesting rights, which continue on unsold lands and on sold lands where the use is not incompatible with harvesting.

Property-specific remedies and defences were deferred to a second phase of the trial.

Following the dismissal of the appellant's motion to stay, the respondent sought partial indemnity costs of $30,643.80.

The appellant argued costs should be fixed at $3,500.

The court found the respondent's claim excessive, noting that fees for two lawyers and a senior clerk were unreasonable for the motion, and the lead counsel's hourly rate was high for the Northwest Region.

Taking a global approach and considering the reasonable expectations of the unsuccessful party, the court fixed costs at $8,500 plus HST.

The moving parties, who are Independent Assessment Process (IAP) claimants under the Indian Residential Schools Settlement Agreement, brought a motion requesting that the case management judge recuse himself from hearing their Request for Directions.

The moving parties alleged actual bias or a reasonable apprehension of bias against St. Anne's IAP claimants, the lead moving party personally, and her former counsel.

The court reviewed the history of the proceedings, including numerous prior orders compelling document production from the respondent, and found no evidence of conscious or unconscious bias.

The court concluded that a reasonable and informed person would not apprehend bias, and dismissed the recusal motion with costs.

The moving party, Hornepayne First Nation, sought to stay an arbitrator's award pending its appeal.

The arbitrator had found the moving party in breach of its financial reporting obligations under a limited partnership agreement and ordered it to submit audited financial statements within 60 days to avoid forfeiture of $2.8 million in gaming revenues.

The court applied the RJR-MacDonald test and dismissed the motion, finding no irreparable harm because the respondent undertook not to distribute the funds pending the appeal, and concluding the balance of convenience favoured the respondent.

The Children's Aid Society brought a motion for summary judgment in a child protection application, seeking a final order granting joint decision-making responsibility of an Indigenous child to the mother and her former partner.

The father opposed the motion, arguing for shared decision-making and raising concerns about the child's exposure to her First Nations heritage.

The court found no genuine issue requiring a trial and concluded that the proposed order was in the child's best interests, noting the history of domestic violence and the proposed caregivers' commitment to fostering the child's cultural identity.

The motion for summary judgment was granted.

The applicant and respondents were involved in a long-standing dispute over a Joint Venture Agreement for a gas bar on a First Nation.

The respondents brought pre-hearing motions to bifurcate the hearing to address the Indian Act issue first, for interim possession of the business, and for the return of $15,000 paid into court as security for costs.

The applicant brought a motion to call oral evidence at the hearing.

The court denied the bifurcation and interim possession motions, granted the motion to call oral evidence, and ordered the return of the $15,000 to the respondent.

The plaintiffs brought a motion on consent to place the action in abeyance pursuant to s. 106 of the Courts of Justice Act.

The action involves complex issues of Aboriginal title relating to water and floodplains in Southern Ontario, which are also being addressed in a separate proceeding.

The court agreed that it would be disproportionate and inefficient to advance this action concurrently and ordered the matter placed in abeyance.

The Attorney General of Canada brought a Request for Directions to appoint an Independent Special Advisor to review certain Independent Assessment Process claims by former students of St. Anne's Indian Residential School.

The review was prompted by concerns that some claims were resolved before additional document disclosure was made available.

The court agreed that an independent review was necessary but modified Canada's proposed process to ensure claimants' interests were represented by an amicus and to remove arbitrary restrictions on the review.