A judge has adjourned a murder trial in Thunder Bay after ruling it was impossible to convene a jury representative of the northern Ontario city’s aboriginal population.
It has been postponed until November.
Here’s the story from cbs.ca.
Author: Peter Vicaire
British Columbia Supreme Court Held That Province Did Not Meet “Duty To Consult” Standard With Adams Lake Indian Band
In Adams Lake Indian Band v. British Columbia (Lieutenant Governor in Council), [2011] B.C.J. No. 363, the British Columbia Supreme Court allowed a petition by the Adams Lake Indian Band, which was resisting the actions of a ski resort seeking status as an incorporated municipality.
The Band claimed that the area in question is part of their traditional territory and that the provincial government failed to adequately consult it about the formation of a new municipality.
The province maintained there was adequate consultation and accommodation of the Band’s concerns and interests. The court disagreed.
Aboriginal Racial Profiling or the Key To Being Banned From a Shopping Mall?
In Wilson v. Ivanhoe Cambridge Inc., [2011] B.C.H.R.T.D. No. 37, a British Columbia Human Rights Tribunal rejected Edward Wilson’s claim that he was banned from a Victoria B.C. shopping mall due to racial profiling. Mr. Wilson is Aboriginal.
The shopping mall security personnel claimed he was previously banned from the mall and upon reports that he had been “keying” cars in the parking lot.
Aboriginal Appeals Allowed For the Presence of Aboriginals on Coroner’s Inquest Jury
Last week, in Nishnawbe Aski Nation v. Eden, [2011] O.J. No. 988, the Ontario Court of Appeal allowed an appeal of a First Nation and the relatives of two deceased persons from the dismissal of their applications for judicial review of a coroner’s refusal to issue a summons.
The appellants were concerned with the process for the selection of a jury roll and the failure to ensure that Aboriginal people would be on the coroner’s inquest jury.
Gladue and the Aboriginal Criminal Sentencing Discount
Last week, in R. v. Collins, the Ontario Court of Appeal lessened the sentence an Aboriginal woman received from 16 months incarceration and two years probation to 10 months incarceration and two years probation.
Susan Collins was a participant in a scheme to defraud Ontario of money from social assistance benefits. The amount directly attributed to Collins was in excess of $96,000. But Collins was only one part of a larger scheme and the total estimated financial loss due to the fraudulent activity while the scheme was operating is $1.285 million. Collins’ role was to provide identities for which false claims were created and to then cash the cheques issued on those files. She processed 67 cheques in the total amount of $96,298.
Her sentence was reduced by six months because the Gladue principle, originating from R. v. Gladue, [1999] 1 S.C.R. 688, was in play.
Cardinal Redux: Aboriginals’ Convictions For Selling Fish on Reserve Upheld
In R. v. Cardinal, [2011] A.J. No. 203, members of the Beaver Lake Cree Nation were convicted of selling fish on their reserve without a commercial license. Their convictions were upheld by the Alberta Court of Appeal.
Here’s the decision. An excerpt is below.
Trashy Decision For B.C. — Nlaka’pamux Nation Tribal Council v. British Columbia
A recent appeal by the Nlaka’pamux Nation (in the B.C. Court of Appeal) was upheld because it was determined that British Columba did not adequately meet its duty to consult requirements. The appeal was in regard to the extension of a landfill over land which the First Nation claimed Aboriginal rights and title.
Here’s the decision . Below is an excerpt.
“Indigenous Title” vs. “Aboriginal Title” – Louison v. Ochapowace Indian Band #71
In Louison v. Ochapowace Indian Band #71 , William Louison tried to sue the Ochapowace Indian Band #71, its corporation (312050 Saskatchewan Ltd.) and the province of Saskatchewan – not only in his personal capacity but also “in a representative capacity on behalf of all Indigenous Peoples of Saskatchewan.”
Mr. Louison was living on a certain tract of land which the Ochapowace Band held the only legally recognizable right to and which it was attempting to remove him from. Louison claimed that he was a “North American Indigenous Person” and that the subject lands were settled by his ancestors. He also claimed that the land in question was traditional “Indigenous Peoples lands” and that he had the right to use the land by way of Indigenous Title. Therefore, he refused to give up possession of the land.
Supreme Court of Canada Grants Lax Kw’alaams Indian Band Motion For Leave To Appeal
The Supreme Court of Canada granted a motion for leave to appeal to the Lax Kw’alaams Indian Band. The band is appealing a dismissed case in which they were looking for declaratory relief against the federal and provincial governments.
The SC also allowed five intervenors to join in on all the fun — Attorney General of Ontario; Metlakatla Band; B.C. Wildlife Federation and B.C. Seafood Alliance; Gitxaala Nation; and the fifth, the Te’Mexw Treaty Association, was given an extension to file their factum.
Here’s a copy.
Stagg Put Out To Pasture
In R. v. Stagg, an Aboriginal man in Manitoba was convicted of fishing contrary to section 78 of The Fisheries Act, R.S., c. F-14, s.1. He didn’t deny it, but based his right to do so on his tribe being a signatory to Treaty #5. The Manitoba Provincial Court didn’t buy Mr. Stagg’s argument and convicted him because he could not prove that commercial fishing was an aboriginal right.
Pulling out the old, classic Van der Peet one-two punch (To constitute an Aboriginal right, an activity must be “an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right”) the court held that Stagg did not have an aboriginal right to commercially fish because he could not prove that his tribe engaged in commercial fishing prior to contact with Europeans.
Since the commission of the offences is not in question, the first step in this judgment is to determine whether Mr. Stagg has proven a prima facie infringement of an Aboriginal or Treaty right to sell fish commercially. The jurisprudence as established by the Supreme Court of Canada (SCC) states that once such onus is met, the onus will then shift to the Crown to show that the prima facie infringement is justified by a valid legislative objective that is consistent with the special trust relationship that exists between the Crown and aboriginal peoples. (R. v. Sparrow, (1999) 1 S.C.R. 1075 at 112).
In R. v. Van der Peet (1996) 2 S.C.R. 507 at paragraphs 44-46, the Supreme Court of Canada defined the scope of Aboriginal rights. To constitute an Aboriginal right, an activity must be “an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right”. In addition, because Aboriginal rights aim to protect the distinctive aspects of Aboriginal cultures, they must be shown to have originated in the practices, customs or traditions of an Aboriginal group in existence prior to European contact.
Because Mr. Stagg was engaged in commercial-scale fishing activity, evidence of traditional practices that amounted to commercial scale fishing have to be proved. Yet Mr. Stagg led no evidence of any sort with respect to this subject matter. There is thus no basis for concluding that commercial-scale fishing qualified as an integral part of the culture of Dauphin River First Nation prior to contact with Europeans.
Turtle Talk 
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