Here’s an interesting case concerning the criminal defense by an Aboriginal man in Manitoba charged with second degree murder and conspiracy to commit robbery. Though his argument (Canada has no jurisdiction over him because he’s aboriginal) is certainly not novel, the manner in which it is presented is actually quite bizarre. It’s worth a quick read – R. v. Campbell.
Author: Peter Vicaire
Supreme Court of Canada Affirms Aboriginal Status Rights in Two Tax Cases
On July 22nd, (I know it’s late, but I just moved!) the Supreme Court of Canada upheld appeals in favor of aboriginal interests in two important cases, Bastien Estate v. Canada and Dubé v. R. Here’s an interesting and informative (pre-decision) commentary by Katherine MacLellan on Indian Act s. 87 taxation.
In Bastien Estate, the Supreme Court ruled that Roland Bastien, (now deceased for six years) a Huron man who took out term deposits at a credit union did not have to pay tax on the interest he earned on his investment. For 27 years, Bastien ran a small handbeaded moccasin business on the Wendake Reserve (near Quebec City), where he also invested some of the income from the operation and sale of his business in term deposits with a caisse populaire (a credit union), also on his reserve. Bastien believed the income was exempt from taxation under s. 87 of the Indian Act.
However, the Canada Revenue Agency disagreed, and added the term deposit investment income to his income for 2001. His estate representatives appealed the decision but lost at both the Tax Court of Canada and the Federal Court of Appeal. Both lower courts ruled that the caisse populaire generated its revenues outside the reserve, not on it, and therefore the interest paid to Mr. Bastien was not exempt from taxation.
But the Supreme Court rejected that opinion and found that the lower courts gave too much weight to the fact that the credit union produced its revenues in the “commercial mainstream” off the reserve.
The companion case to Bastien, Dubé v. The Queen, involved Alexandre Dubé, an Attikamek aboriginal, who was also found to be exempt from tax on interest he earned on term deposits with an on-reserve credit union.
Aboriginal Peoples Television Network May Get Access to Human Rights Tribunal Concerning Aboriginal Child Welfare
A Federal Court judge recently set aside a decision made by the Human Rights Tribunal which denied the Aboriginal Peoples Television Network (APTN) access to hearings concerning allegations of inequitable funding of child welfare services on First Nations reserves. Here’s the decision.
The aboriginal parties (Assembly of First Nations and the First Nations Child and Family Caring Society) alleged that the inequitable funding amounted to discrimination on the basis of race and national ethnic origin, contrary to section 5 of the Canadian Human Rights Act, RSC 1985, c H-6.
Only 27% of Canada’s First Nations’ Drinking Water Is Considered Safe
In a recent, independent study of water quality on reserves, it was determined that 39% of First Nations drinking water systems are at a “high” risk, while another 34% were deemed to be a “moderate” risk. The report also concluded that 6 billion dollars would be needed to adequately address the issue.
Here’s the original story.
B.C. Supreme Court Keeps Aboriginal Title and Aboriginal Rights Severed
In B.C. (Minister of Forests) v. Okanagan Indian Band, the province sought direction, for an upcoming (November) trial, on the issue of the band mixing aboriginal title and aboriginal right, which had been severed into two different phases of the trial.
B.C. argued that Okanagan First Nation was incorrectly introducing the title issue during the rights phase, but Okanagan disagreed, stating that the question of the Crown’s burden of proof to establish that the timber was Crown timber has always been an issue in the case, and in the severed trial, and that their recent (May) notice of a constitutional question simply clarifies that position.
The judge found in favor of the province, holding that the notice of constitutional question will be deferred to the second phase.
Prophet River First Nation v. Rath & Co.: Attorney Fees & Taxes
In Prophet River First Nation v. Rath & Co., a judge from the Alberta Court of Queen’s Bench has exercised his discretion and extended the time allotted for taxation of lawyer’s fees ($10 million) in connection with a larger settlement ($130 million) between Prophet River First Nation and the Government of Canada.
This settlement was in the news in 2008 when members of that first nation took over their band office in a peaceful sit-in. They were upset that Chief Liza Wolf and Councillors Lorraine Wolf and Loretta McAllister gave themselves each a $800,000 lump sum payments as part of the “administration costs” of the lawsuit.
When those three were ousted in an election, the new Chief and Councillors commenced this action, seeking to tax the funds received by the law firm, Rath & Co., even though the deadline had passed.
Shotclose v. Stoney First Nation: Election? We Don’t Need No Stinking Election
In Shotclose v. Stoney First Nation, members of Stoney Nakoda First Nation (which includes Bearspaw, Chiniki, and Wesley) were successful in convincing the Federal Court of Canada to invalidate an extension of the chief and councillor’s term in office past the two year band resolution limit.
Moulton Contracting v. British Columbia: Collective Rights vs. Individual Rights
Here’s an interesting case for civil disobedience-minded aboriginals to remember. In Moulton Contracting v. B.C., several members of the Behn family of Fort Nelson First Nation blockaded a logging road which they had traplines on. They did so because, they asserted, British Columbia did not consult with Fort Nelson in any meaningful way and because the logging (done by Moulton Contracting) interfered with their Treaty 8 rights.
However, the trial judge struck these paragraphs of their statement of defence out (and the appellate court affirmed) because, the court held, individual members of the Fort Nelson First Nation did not have standing to advance the legal positions set out in those paragraphs because the rights asserted were collective rights of the Aboriginal community.
An Aboriginal Justice On The Supreme Court Of Canada? Why?
Soon, there will be two vacancies on the Supreme Court of Canada, as Justice Charron is retiring on August 30 and Justice Binnie will leave when a replacement is named. As such, the Indigenous Bar Association recently asked Prime Minister Stephen Harper to consider appointing an aboriginal to the Supreme Court. Of course, there has been some opposition to appointing someone because of their race to the highest court in Canada. In fact, former Supreme Court Justice John Major (who found in favor of aboriginal interests only 20.6% – 6/29 times — one of the lowest ever) expressed his disdain for such a racially-based appointment. Oddly enough, I happen to agree with Mr. Major, but for wildly different reasoning.
Pigott v. Nochasak: Providing Language and Culture to an Inuit Child
Here’s a very interesting child custody case out of the Newfoundland and Labrador Supreme Court that might rankle some ICWA aficionados.
Pigott v. Nochasak involves a non-Inuit father and an Inuit mother. However, both parents speak Inukitut fluently and the non-Inuit father has a Master’s degree focusing on the language. He also engaged in writing an Inukitut dictionary. After the parents were separated and joint custody was awarded, the mother left home and attended school in Halifax and Ottawa and often spoke to the child in English, while the (non-Inuit) father remained in Newfoundland and spoke to her solely in Inukitut.
Both parents claimed they would be a better provider of Inuit cultural interests. The judge granted sole custody to the…
Turtle Talk 
You must be logged in to post a comment.