In Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, the Supreme Court of Canada recently (Nov. 10) dealt a serious blow to any tribes wanting to engage in commercial fisheries within their traditional territories. The unanimous, 7 judge court (McLachlin, Binnie, LeBel, Deschamps, Abella, Charron, and Rothstein) rejected a claim to possession (under s. 35) of an aboriginal right to fish commercially all species in their traditional territories. Before contact with the newcomers, the Lax Kw’alaams Indian Band fished off their ancestral coast for thousands of years, regularly traded fish grease extracted from the eulachon, as well engaged in occassional trade in other fish and fish products. As such, the Lax Kw’alaams sought a declaration as to their aboriginal rights to engage in commercial fishing. The trial judge and later, the British Columbia Court of Appeal, rejected their claim. The Supreme Court followed suit – and Justice Binnie (shouldn’t he be gone by now?), writing for the court, agreed with the lower courts.
Aboriginal Rights
No Axes To the Taxes – Marcinyshyn v. R.
Marcinyshyn v. R was recently handed down by the Tax Court of Canada – and is really just more of the same. The aboriginal appellants were denied tax relief because of the failed “connecting factors” test, notwithstanding their argument that the test has become obsolete as a result of the Supreme Court’s recent decision in Bastien and Dubé.
More Spying by the Canadian Government–Child Welfare Edition
The article is in the Toronto Star:
Why is the federal government spying on Cindy Blackstock?
When does a life-long advocate for aboriginal children become an enemy of the state?
The answer, it would seem, is when you file a human rights complaint accusing your government of willfully underfunding child welfare services to First Nations children on reserves.
Accusing your government, in other words, of racial discrimination.
That’s what Blackstock, as executive director of the First Nations Child and Family Caring Society of Canada, did in 2007.
Since that time, federal officials attended 75 to 100 meetings at which she spoke, then reported back to their bosses.
They went on her Facebook page during work hours, then assigned a bureaucrat to sign on as himself after hours to check it again looking for testimony from the tribunal.
On at least two occasions, they pulled her Status Indian file and its personal information, including data on her family.
H/T to our Senior Canadian Correspondent.
Self-Government For Mi’kmaq in Nova Scotia?
CTV recently released (October 4) a tiny story on what could be a monolithic advancement for the Mi’kmaq of Nova Scotia, and in turn for aboriginals throughout Canada. Here’s the story. However, be forewarned, this small piece, not even 200 words, barely offers any substance and reads more like an Onion article (“[O]ne of the most pressing details to work out for the Mi’kmaq is to find a place to put a House of Assembly”). And perhaps tellingly, Federal Aboriginal Affairs and Northern Development Minister John Duncan would not offer comment on it. Curioser and curioser. Stay tuned…
British Columbia Court of Appeal Dismisses Vancouver’s Appeal Against Musqueam Indian Band
The court didn’t agree with the Greater Vancouver Regional District’s argument that the recent Musqueam Reconciliation, Settlement and Benefits Agreement Implementation Act was ultra vires the province’s power because “it is, in pith and substance, a law in relation to ‘Indians and Lands reserved for the Indians.'” The decision is here.
Tzeachten First Nation v. Canada Lands Co.
An application by Canada Lands Co. to dismiss an action brought by Chief Joe Hall on behalf of the members of Tzeachten First Nation, the Skowkale First Nation and the Yakweakwioose First Nation, was rejected by the British Columbia Supreme Court. Canada Lands Co. claimed that Tzeachan’s action was barred by res judicata. Alternatively, Canada Lands Co. asked that the claim be struck because it disclosed no reasonable claim or was an abuse of process.
The judge denied the application. Here’s the decision.
Campbell v. British Columbia: Costs Awarded To Crown and Sunshine Logging
There’s no legal sunshine for the unsuccessful aboriginal petitioners (Sinixt Nation Society, Representative Body of the Sinixt Nation) who were not only deemed to have no standing back in February, but now the B.C Supreme Court has also awarded costs to both the Crown and Sunshine Logging Ltd. Here’s the decision. It provides an interesting analysis of costs in the context of what constitutes public interest actions.
Louis v. British Columbia: Crown Acted Honourably – Discharged Its Duty To Consult Obligation
It looks like Chief Reginald Louis and members of the Stellat’en First Nation are out of luck. They sought judicial review and a number of orders on the basis that the provincial Crown (B.C. Ministry of Energy, Mines and Petroleum Resources) failed to adequately and meaningfully consult them. Their concern was in relation to a mine located on land over which they have asserted Aboriginal title and rights. Here’s the decision.
Sun Peaks Resort Added as Respondent In Forthcoming “Duty to Consult” Appeal
Gitxsan Nation v. Gitxsan Treaty Society: No Reasonable Cause of Action
A British Columbia Supreme Court judge recently dismissed an action by the Gitxsan Nation against the Gitxsan Treaty Society (“GTS”) (oppression); Canada and British Columbia (breach of fiduciary duty and of duty of honour) and; the British Columbia Treaty Commission (negligence).
The plaintiffs’ complaint is that over the years the GTS has unduly restricted the involvement of the plaintiff hereditary chiefs and Indian bands in treaty negotiations. They complain that, amongst other things, GTS has declined to take direction or input from the Gitxsan chiefs, restricted debate on matters of concern to all Gitxsan, and conducted its affairs in a secretive and “oppressive” manner that was unfairly prejudicial to the plaintiffs.
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