ABORIGINAL LEGAL ISSUES e-newsletter

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1 ABORIGINAL NEWSLETTER 27 AUGUST 2013 ABORIGINAL LEGAL ISSUES e-newsletter CASES CANADA Sga Nisim Sim Augit (Chief Mountain), also known as James Robinson, suing on his own behalf and on behalf of all the members of the House of Sga Nisim v. Canada (Attorney General), File No , Supreme Court of Canada (McLachlin C.J.C., Abella and Cromwell JJ.A), 22 August 2013 The Supreme Court of Canada dismissed a leave application filed by the plaintiffs in the Chief Mountain case, involving a constitutional challenge to the Nisga a Final Agreement. The decision of the trial judge (2011 BCSC 1394) was summarized in our e-newsletter of 6 March 2012, and the dismissal of the appeal by the B.C. Court of Appeal in February 2013 (2013 BCCA 49) was noted in our e-newsletter of 15 July A summary of the case found on the SCC s website was as follows: Aboriginal law Self-government Constitutional validity of treaty Whether Court of Appeal erred in finding transfer of legislative powers to Nisga a government under Treaty to be valid delegation of such powers Whether Court of Appeal erred by refusing to expressly overrule conclusion in Campbell et al. v. A.G. BC/AG Cda & Nisga a Nation et al., 2000 BCSC 1123, that legislative powers conferred under Treaty reflect inherent Aboriginal right of self government which exists independently from legislative powers in ss. 91 and 92 of Constitution Act, 1867 Whether Court of Appeal erred in finding it was constitutionally permissible for Parliament or provinces to delegate legislative power to create new taxes. In 1998, the Nisga a Tribal Council, and the respondent federal and

2 2 ABORIGINAL NEWSLETTER 27 AUGUST 2013 provincial governments signed a treaty and a land claims agreement ( Treaty ) with the intention of reconciling the prior presence of the Nisga a Nation with the assertion of sovereignty by the Crown and of establishing a new relationship between them. The agreement was ratified by the Nisga a people and the governments. Among other things, the Treaty deals with the preservation of Nisga a culture, language and education, land and resources and it expressly recognizes the Nisga a Nation s right to self-government and the authority to make laws. The applicants are members of the Nisga a Nation. They challenged the Treaty and settlement legislation that gave it force of law on the basis that it impermissibly confers legislative and self-government powers on the Nisga a Nation that are inconsistent with the exhaustive distribution of legislative power between the respondent governments found in ss. 91 and 92 of the Constitution Act, They also argued that any purported delegation of powers through the settlement legislation to the Nisga a government is invalid, primarily because it is an improper abdication of legislative power. The trial judge dismissed the applicants claim for declaratory relief. The Court of Appeal dismissed the appeal. The Supreme Court of Canada dismissed the leave application with costs. Decisions available here. Scott Kerwin Partner skerwin@ Lake St. Martin First Nation v. Manitoba, 2013 MBQB 150, Manitoba Court of Queen s Bench (Mainella J.), 18 June 2013 The Manitoba Court of Queen s Bench dismissed an application by the plaintiffs, on behalf of the Lake St. Martin First Nation, for an order of interim costs to fund a claim against Manitoba and Canada relating to the historic flooding of lands. The Court held that the evidence filed by the plaintiffs fell far short of satisfying the requisite test to obtain such an extraordinary remedy. In particular, the plaintiffs failed to satisfy the first criterion of the Okanagan First Nation test of demonstrating that they were impecunious. There was no reliable evidence of the financial status of the plaintiffs, and no litigation budget was put before the court. The plaintiffs failed to make full and transparent disclosure. This claim was filed in 1999, and related to the flooding of reserve lands in the 1960s and 1970s. The plaintiffs allege that a release signed in 1975 concerning the flooding was unconscionable. There were sporadic negotiations between 2007 and In January 2011, the plaintiffs advised that they would proceed with this litigation and sought funding from Manitoba. The funding request was denied. The court noted the tragic events of 2011 when further flooding led to an evacuation order. In February 2012, the plaintiffs advised that their motion for interim costs would not be pursued, in order to pursue negotiations with Canada and Manitoba. A framework agreement was signed in April However, in September 2012, the First Nation abruptly took the position that it wanted the Crown s position and commitment to the issues of relocation and compensation within eight days. The plaintiffs then retained new counsel and issued a media release indicating that it would proceed with the interim costs motion.

3 3 The Court applied the test for interim costs set out in Okanagan First Nation v. British Columbia, 2003 SCC 71 and Little Sisters Book and Art Emporium v. Canada, 2007 SCC 2. The three requirements are impecuniosity, a meritorious case, and issues of public importance. These are absolute requirements. The first prong of impecuniosity requires strong evidence that the party genuinely cannot afford to pay for the litigation, and there must be no other realistic option for bringing the issues to trial. The Court noted that there is no right to interim costs, and such an order remains at the discretion of the court. The threshold of proof of impecuniosity is high. The applicant must make full and transparent disclosure of its assets, expenses, ability to raise or borrow monies, the ability to retain counsel (including the availability of a contingency fee agreement), and an estimate of the litigation costs. Mainella J. commented that the Court cannot be myopic about the consequences of such an order, and its democratic implications. He stated: in this motion, public monies are being requested without debate, advice or consent of the legislature(s). While an order for interim costs promotes access to justice for the general public interest, the monies ordered come from the treasury in the form of increasing the public debt or cutting funding to others. Accordingly, a party seeking interim costs must come before the court with complete financial transparency so that the court s decision provides accountability for the use of public monies. The Court held that the applicants failed to meet this test. The plaintiffs relied on the affidavit of Mr. Marsden, who had been the elected Chief between 2007 and He was now retired. Mr. Marsden had little personal knowledge of the First Nation s current finances. He had no knowledge of the plaintiffs attempts to locate alternative funding. Mainella J. referred to Mr. Marsden as nothing more than a straw man. He cannot make full disclosure because he lacks the requisite knowledge to do so. Most of his affidavit was vague or non-sourced hearsay. The evidence filed by the plaintiffs failed to demonstrate that they were diligent and thorough in seeking out alternative sources of litigation funding. An interim costs order cannot be made unless the party fully explored both public and private alternative funding options in good faith. In this case, there was no evidence about the ability of the individuals members of the First Nation to assist. The Court cannot be left to guess in a vacuum. A blanket statement that none of the First Nation members (over 1,000) were unable to contribute anything is not credible. The Court noted that the plaintiffs had hired and discharged multiple lawyers since 1999, which indicates that the First Nation does pay its legal bills. There was also no evidence of whether a contingency fee agreement had been explored. The Court agreed with Manitoba s submission that this claim seems ideal for such an arrangement. The Court also criticized the plaintiffs for not having a litigation budget, or any estimate of the potential costs other than the statement that the claim can easily run into the millions of dollars. A properly drafted litigation budget is necessary to obtain such an extraordinary remedy as interim costs. The plaintiffs motion was therefore dismissed. The parties could make submissions on the costs of this application. Decisions available here. Scott Kerwin Partner skerwin@

4 4 ABORIGINAL NEWSLETTER 27 AUGUST 2013 BOOKS AND ARTICLES NOTICED BUT NOT REVIEWED The Summer 2013 Number 178 issue of BC Studies contains the following Articles and Book Reviews of potential interest: BOOKS NOTICED BUT NOT REVIEWED Beaumont, Ronald C., Sechelt Dictionary, (Sechelt, BC: Sechelt Indian Band, 2011, 1005 pp.) Clark, Terence N., Rewriting Marpole: The Path to Cultural Complexity in the Gulf of Georgia (Mercury Series, Archaeology 172) (Ottawa: University of Ottawa Press, 2013, 265 pp.) Elsey, Christine J., The Poetics of Land and Identity among British Columbia Indigenous People (Winnipeg: Fernwood Publishing, 2013, 156 pp.) Harper, Joan, He Moved a Mountain: The Life of Frank Calder and the Nisga a Land Claims Accord (: Ronsdale Press, 2013, 220 pp.) Hyde, Anne F., Empires, Nations and Families: A New History of the North American West, (Toronto: HarperCollins Canada, 2012, 640 pp.) Markey, Sean Patrick, Greg Halseth, and Don Manson, Investing in Place: Economic Renewal in Northern British Columbia (: UBC Press, 2012, 352 pp.) Mather, Ken, Frontier Cowboys and the Great Divide: Early Ranching in BC and Alberta (Victoria, BC: Heritage House, 2013, 224 pp.) Philpott, Vesta Foote Leslie, Pioneer Daughter: Footnotes on a Life in Northern British Columbia (Prince George, BC: Lake Shannon Publishing, 2013, 128 pp.) Sellars, Bev, They Called Me Number One: Secrets and Survival at an Indian Residential School (: Talonbooks, 2013, 256 pp.) Stevenson, Jane, A Trail of Two Telegraphs: And Other Historical Tales of the Bulkley Valley and Beyond (Halfmoon Bay, BC: Caitlin Press, 2013, 192 pp.) Thom, Ian M., Emily Carr: Collected (: Douglas & McIntyre, 2013, 152 pp.) ARTICLES NOTICED BUT NOT REVIEWED Barman, Jean, Metis Networks in British Columbia: Examples from the Central Interior in Contours of a People: Metis Family, Mobility, and History. N.Ste-Onge, C. Podruchny, and B. Macdougall, eds. (New Directions in Native American Studies Series 6) Norman OK: University of Oklahoma Press, 2012, 520 pp.) Bernick, Katherine, People-Wetland Interaction in Canada, in The Oxford Handbook of Wetlands Archaeology (Francisco Menotti and Aidan O Sullivan, (eds.), Oxford, UK: Oxford University Press, 2013, 1088 pp.) Burchell, Meghan, Aubrey Cannon, Nadine Hallmann, Henry P. Schwarcz, and Bernd R. Schöne, Inter-site Variability in the Season of Shellfish Collection on the Central Coast of British Columbia (Journal of Archaeological Science 40, no. 1 (2013)) Egan, Brian, Towards Shared Ownership: Property, Geography, and Treaty Making in British Columbia (Human Geography 95, no. 1 (2013)) Johnston, Suzanne, and Joyceen S. Boyle, Northern British Columbian Aboriginal Mothers: Raising Adolescents with Fetal Alcohol Spectrum Disorder (Journal of Transcultural Nursing 24, no. 1 (203))

5 Lyon, Sharrae, Decolonizing Resistance at the Unis tot en Camp (Canadian Dimension 47, no. 1 (2013)) Powell, Miles, Divided Waters: Heiltsuk Spatial Management of Herring Fisheries and the Politics of Native Sovereignty (Western Historical Quarterly 43, no. 4 (2012)) Saarikoski, Heli, Understanding Successful Conflict Resolution: Policy Regime Changes and New Interactive Arenas in the Great Bear Rainforest (Land Use Policy 32 (2013)) ABORIGINAL LAW GROUP National Leader Kenneth J. Tyler ktyler@ Regional Leaders Brad J. Pierce Calgary bpierce@ Yvan Houle Montréal yhoule@ Cynthia Westaway Ottawa cwestaway@ Adam Chamberlain Toronto achamberlain@ Kenneth J. Tyler ktyler@ BORDEN LADNER GERVAIS LAWYERS PATENT & TRADE-MARK AGENTS Calgary Centennial Place, East Tower 1900, rd Ave S W Calgary, AB, Canada T2P 0R3 T F Toronto Scotia Plaza, 40 King St W Toronto, ON, Canada M5H 3Y4 T F This e-newsletter contains only general information about Aboriginal legal issues and Aboriginal claims to lands and resources. It is not legal advice and should not be relied on as such. Any comments contained in the e-newsletter concerning the interpretation or implications of court decisions, legislative changes, or other matters are based upon preliminary impressions and may not represent our considered views. We do not represent or warrant the accuracy of the content of the e-newsletter and assume no responsibility for errors or omissions in it. Neither Borden Ladner Gervais LLP nor any of the e-newsletter s editors or contributors shall be liable for any loss or damages suffered as a result of any reliance upon information or opinion contained in the e-newsletter, nor do we warrant the accuracy or reliability of the contents of any of the Internet sites or other sources to which we may refer in the newsletter. This e-newsletter is provided to contributors, partners, associates and staff members and clients of Borden Ladner Gervais LLP, and selected others. It is not intended for public distribution. You may save or print off the visible text of the e-newsletter for your own use and that of your firm, office, or government agency, but you may not otherwise reproduce any part of the e-newsletter without our permission. Unless specified to the contrary, the contents of this e-newsletter are protected by copyright. The authors of the material in the e-newsletter assert their moral rights. The content of the Internet sites to which the e-newsletter provides links may be subject to copyright and other intellectual property rights, and you are responsible for any use you may make of the contents of such sites. Borden Ladner Gervais LLP claims no rights to the Internet sites or other sources referred to in the e-newsletter, unless they are identified as the property or work product of Borden Ladner Gervais LLP or its partners, associates, consultants, or employees. Montréal 1000, De La Gauchetière St W Suite 900 Montréal, QC, Canada H3B 5H4 Tél Téléc Ottawa World Exchange Plaza 100 Queen St, Suite 1100 Ottawa, ON, Canada K1P 1J9 T F (Legal) F (IP) ipinfo@ (IP) 1200 Waterfront Centre 200 Burrard St, P.O. Box 48600, BC, Canada V7X 1T2 T F Waterloo Region Waterloo City Centre 100 Regina St S, Suite 220 Waterloo, ON, Canada N2J 4P9 T F F (IP) 2013 Borden Ladner Gervais LLP Borden Ladner Gervais LLP is an Ontario Limited Liability Partnership.