Briefs at Brief: Recently Decided Indigenous Case Law

R v Reynolds, 2017 NBCA 36

Subject : Fish and wildlife offences- illegal sale of moose

Facts: The Aboriginal defendant killed a moose and traded its meat to K for a car. K, a non-Aboriginal person, was charged with unlawfully possessing and trading moose meat under Fish and Wildlife Act. The Defendant was charged as an accessory to these offences. The charges against defendant were stayed. The Crown appealed, arguing that though the defendant had a treaty right to trade with non-Aboriginals, he only has this right if the non-Aboriginal has the right to acquire the product.

Ratio: The prosecution of the defendant was an abuse of process. The defendant’s right to hunt and trade was a treaty right and therefore protected.

Impact: This case is a reminder to governments that treaty rights and Aboriginal rights offer certain protections to the right-bearer, including protection from prosecution in some situations.

 

Bernard v R, 2017 NBCA 48

Subject: Hunting offences- application of provincial statutes

Facts: An individual with Indian status was convicted of hunting without licence. Lower courts found that the defendant’s Shubenacadie Band card and Mi’kmaq heritage did not exempt him from licensing requirements.

Ratio: To exercise hunting rights at a location in question, one must show ancestral membership to a present community that has the right to exercise that right. This is because Section 35 rights are held communally.

Impact: There must be a contemporary community for there to be Section 35 rights as these rights are held communally. Rights are connected to a community, not to a practice.

 

Taseko Mines Limited v Canada (Environment), 2017 FC 110

Subject:  Constitutional Law- Distribution of legislative powers

Facts: Taseko Mines Limited (“Taseko”) proposed a mining project, which underwent environmental assessments by Environment Canada. A mine was to be built on the traditional territory of a First Nation. The assessment stated there would likely be significant adverse environmental effects that were unjustified. Taseko alleged that there were breaches of procedural fairness and jurisdictional errors, namely sections 5(1)(c), 6 and 7 of the CEAA. Taseko argued that the duty to consult was prioritized above the duty of fairness.

Ratio: Indigenous people have many of the same interests as non-indigenous people, and these interests are often uniquely at risk in ways that interests of non-indigenous people are not. To ensure the duty of fairness is respected throughout the consultation process, the proponent has a right to have a role in consultations between the Crown and the First Nation.

Impact: Companies who must rely on the Crown to consult with First Nations will use this case to show that they have a right to information on the consultation and the right to comment on the Crown’s progress. This ensures fairness throughout the process.

 

Ross River Dena Council v Canada (Attorney General), 2017 YKSC 58

Subject: Land claims agreements- Duty of Crown to negotiate

Facts: In December 1867, the Parliament of Canada asked the Imperial Parliament to “unite Rupert’s Land and the North-Western Territory with this Dominion” and to grant Canada authority to legislate in respect of territories (“1867 Address”). In response, in 1870, the British Privy Council enacted Rupert’s Land and North-Western Territory Order as an Imperial Order-in-Council authorizing transfer of two territories to Canada. Shortly after, Canada began the process of negotiating treaties with certain Indigenous peoples occupying those lands. In exchange for acquiring the right to govern those lands, Canadian Parliament undertook that, upon transference of territories in question to Canadian Government, the claims of Indigenous tribes to compensation for lands required for purposes of settlement would be considered and settled in conformity with equitable principles that uniformly governed British Crown “in its dealings with the aborigines”. The Plaintiff in this case, the Ross River Dena Council, was a band within meaning of the Indian Act and was part of K tribe, one of “Indian tribes” referred to in 1867 Address. They sought declaratory relief.

Ratio: Though the government intended the Honour of the Crown to be a moral obligation and not a legal one, legal norms favour interpreting the duty as a legally binding constitutional obligation. Therefore, the Honour of Crown; judicial preference for progressive interpretation over originalism; generous and liberal interpretation of constitutional documents affecting Aboriginal peoples, with doubts and ambiguities to be resolved in their favour; and respect for “minority rights”, including Aboriginal rights, are all foundational constitutional principles.

Impact: First Nations can invoke this case to show that the Honour of the Crown is more than a moral obligation, but a binding legal one.

 

Coldwater Indian Band v Canada (Aboriginal Affairs and Northern Development), 2017 FCA 199

Subject: Reserves- fiduciary duty and expropriation of Aboriginal lands

Facts: A pipeline right-of-way through the reserve of a First Nation was granted in 1955 to a third-party company, through indenture. The respondent, the Minister of Indian Affairs and Northern Development, consented to the assignment of indenture to the company, executing an assignment consent agreement. The applicant First Nation Band and its Chief unsuccessfully brought an application for judicial review. The Band appealed the decision.

Ratio: The Crown failed to consider the Band’s concerns about the compensation and the terms of the indenture agreement. The Crown must minimally impair Indigenous interests in the land and look forward to future effects.

Impact: This case illustrates the fiduciary duty of the Crown and the importance of looking ahead at future potential impacts of a project. A First Nation could argue that though no adverse effects exist at present, there are potential future adverse effects worth considering.

2018-09-11T11:40:58+00:00