ABORIGINAL LEGAL ISSUES e-newsletter

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1 ABORIGINAL NEWSLETTER 13 AUGUST 2014 ABORIGINAL LEGAL ISSUES e-newsletter CASES CANADA Songhees Nation v. British Columbia, Supreme Court of British Columbia, 2014 BCSC 591, (Bracken J.), 7 April 2014 Songhees Nation v. British Columbia, Supreme Court of British Columbia, 2014 BCSC 609, (Bracken J.), 9 April 2014 Songhees Nation v. British Columbia, Supreme Court of British Columbia, 2014 BCSC 632, (Bracken J.), 11 April 2014 The Supreme Court of British Columbia issued three judgments in the Songhees Nation case during the week of April 7. The orders were made by the case management judge, Mr. Justice Bracken, in the context of actions brought by the Songhees Nation and the Esquimalt Nation set for a lengthy trial beginning in September The plaintiffs Songhees Nation and Esquimalt Nation seek damages in lieu of a declaration that they have treaty rights to use certain lands (approximately 200 acres) near Cadboro Bay in Victoria, and damages for breaches of their rights under one of the Douglas Treaties and for breaches of fiduciary duties. An earlier decision relating to the exchange of expert reports in this proceeding (2012 BCSC 1269) was summarized in our e-newsletter of 4 September The first decision from April 2014 (2014 BCSC 591) related to a demand for particulars made by the Songhees Nation to the defendant British Columbia. The application had been heard in June 2013 but a ruling was deferred to allow the parties to resolve the matter. In February 2014, the plaintiffs requested that the court make a ruling. British Columbia opposed many of the demands on the grounds that they request evidence, or that they request legal argument. British Columbia also submitted that proposed amendments to the pleadings would render some of the demands moot.

2 2 ABORIGINAL NEWSLETTER 13 AUGUST 2014 Bracken J. referred to the leading case of Cansulex Ltd. v. Perry (1982) on the function of particulars. He then reviewed the specific demands made by the plaintiffs. The Court s findings included: BC was required to provide particulars of its allegation that aboriginal people moved to Songhees Point, such as which aboriginal peoples moved there. BC was not required to identify what other places the Chekonein people resided in BC was required to remove a without prejudice proviso to one of its responses. BC was not required to provide particulars of the terms context and historical context. BC was not required to provide particulars of the lands traditionally occupied and claimed by the Lekwungun since the action only concerns certain lands. BC was not required to provide particulars of village sites and enclosed fields, since the plaintiffs themselves were not able to precisely define them. BC was required to provide particulars of its allegations relating to waiver and estoppel. The Court considered the plaintiffs demand for particulars of the plea by British Columbia that the plaintiffs claims ceased upon disposition of the lands to third parties. Bracken J. referred to the BC Court of Appeal decision in Jones (Litigation guardian of) v. Donaghey, 2011 BCCA 6 on the concept of issues and material facts in pleadings. He found that the plaintiffs were seeking to obtain legal argument, not material facts. Similarly, BC was not required to respond to demands about the effect of the Terms of Union and federal-provincial agreements. Bracken J. commented: The material facts alleged are that the federal-provincial agreements result in no liability for British Columbia. British Columbia will make its argument in due course or lead evidence in support of the argument. The plaintiffs have enough information to respond to the pleadings. The demand is an effort to get disclosure of the legal argument that British Columbia intends to advance. Particulars are intended to provide sufficient material facts to allow a party to respond to a pleading, not to challenge legal argument or to extract information with respect to evidence. British Columbia need not answer either Demand 14(b) or 14(d). The second ruling (2014 BCSC 609) concerned settlement of a trial phasing order pronounced on May 21, The order was made by consent, upon the agreement of the parties that the issue of liability should be tried first. In this ruling, the Court confirmed that the issues of the size of the enclosed fields and village sites are to be dealt with in phase 1 of the trial. The order was settled in the terms proposed by Canada. The final ruling (2014 BCSC 632) concerned the delivery of expert reports by the plaintiffs. The current version of the case plan order set a deadline of January The plaintiffs served

3 3 the report of Dr. Littlefield in October 2013, the addendum report of Dr. Boxberger in December 2013, and the supplementary report of Dr. Lutz in January The plaintiff Songhees Nation also sought to deliver a report of Dr. Goltz relating to a spectographic analysis of a map dating from the 1850s. Bracken J. recognized that the expert evidence in this action will be unique, and there may be the need for revisions or supplements. However, there must be some finality to the process so that the defendants can properly respond. It was also noted that a judicial settlement conference was set for May The Court held that the Boxberger report was admissible as a material change report under Rule 11-6(6) of the Civil Rules. In regards to the other reports, Bracken J. proceeded on the principle that relevant evidence should not be excluded unless there is substantial prejudice that would justify exclusion. The Court could not find any such prejudice here, and varied the Case Plan Order to allow for the delivery of the reports. A firm date of May 23, 2014, was set for delivery of all of the plaintiffs expert reports. The deadline for filing reply or response reports was set at June 30, 2014, except for a July 28 deadline for responding to the Goltz report. Decision available here, here and here. Scott Kerwin, Partner Aboriginal Law Vancouver skerwin@ Buffalo River Dene Nation v. Saskatchewan (Minister of Energy and Resources), 2014 SKQB 69, Saskatchewan Court of Queen s Bench (Currie J.), 6 March 2014 The Saskatchewan Court of Queen s Bench dismissed a judicial review application brought by an Aboriginal group in relation to the posting and sale of oil sands exploratory permits in an area covered by Treaty 10. The Court held that the duty to consult was not triggered in this case. The Crown s decision to post and sell the permits would have no adverse impacts on the petitioner s treaty rights, since further authorizations were needed before any physical work could be undertaken on the lands. The Crown s decision was not a highlevel planning decision as described in Haida Nation, as no planning was involved. In September 2012, the respondent Minister posted oil sands exploration permits for sale by sealed bid. The permits extended to lands covered by Treaty 10. In December 2012, the Minister issued two permits to Scott Land & Lease Ltd. to areas that included Treaty 10 lands. The petitioner Buffalo River Dene Nation is a successor to the Clear Lake Indian Band, a signatory of Treaty 10. The respondent Minister did not consult with the petitioner prior to the posting of the permits for sale in September 2012, or the issuance of the permits in December The petitioner subsequently filed an application for judicial review of these decisions. As a preliminary matter, the Court struck out affidavit evidence filed by the respondent Minister concerning correspondence with the petitioner (in

4 4 ABORIGINAL NEWSLETTER 13 AUGUST ) about oil sands exploration. The respondent asserted that such evidence was relevant, since the materials filed by the petitioner left the impression that the petitioner had never agreed to development in the past. The Court held that such evidence was irrelevant since the duty to consult exists independently of the Aboriginal group s support for, or opposition to, a particular development. Whether a duty to consult was triggered is reviewed on a standard of correctness. The petitioner alleged that the Crown decision was the sort of high-level planning decision described in Haida Nation that will significantly influence future decisions, and is the first step in a process that will inevitably lead to further exploration. Currie J. commented: Of course, just saying so does not make it so. There must be a reason for concluding that this is an accurate characterization of the decision to issue the permits. The nature of these permits what they allow, how they could be used, what effect they could have must be understood. Currie J. reviewed the regime for exploration under Saskatchewan s Crown Minerals Act. The type of permit issued to the respondent Scott Land & Lease does not authorize the permit holder to actually go onto the land and do anything. Further authorizations are needed to engage in physical exploration work. The Court rejected the petitioner s arguments about the significance of regulations that require a permit holder to undertake certain works, such as drilling wells, or the permits will be forfeited. The Court noted that such steps would require further authorizations, and that many permit holders in fact conduct no activities and forfeit their permits. The Court rejected the argument that the Crown decision was the type of strategic high-level planning decision discussed in the Haida Nation case. The decision was made at the administrative level, not the Ministerial level, and involved no planning. When the Ministry receives a request to post permits in certain areas, a decision will be made to post permits for sale. No planning is involved in the decision. The administrative decision to post permits is not automatic, and may be declined. The government official has no information about exploration plans. Currie J. stated: Posting permits for sale and issuing permits are relatively straightforward processes that accommodate persons who are considering the possibility of oil sands exploration. Neither process in any way is part of the Crown beginning a strategic or planning process. Both processes simply facilitate persons who wish to gather information in considering what those persons might wish to pursue and request in the future. Neither decision was a strategic, higherlevel decision.

5 5 The permit holder would need an authorization from the provincial Ministry of Environment before conducting any physical activities on the land. The decision of this Ministry is made without reference or regard to the existence of an exploratory permit issued by the respondent Minister. Currie J. held that the issuance of an exploratory permit does not bind the Ministry of Environment when considering whether to issue a further authorization. The duty to consult may well be engaged at that stage. The Court held that the duty to consult did not arise in this case, as the respondent Minister did not make a decision that could affect the use of the land. Only a decision of the Ministry of Environment allowing physical work at the lands would impact the lands and likely engage the duty to consult. Currie J. stated: neither the posting for sale nor the issuance of permits has the potential to adversely impact BRDN s rights, because the posting and issuance can have no effect on the use of the land unless a later, necessary and independent step is taken. That step is the acquisition of authorization to go onto the land. The Court referred to a statement of the BC Court of Appeal in Halfway River First Nation (1999), adopted by the Supreme Court of Canada in Mikisew (2005), that an aspect of the duty to consult involves ensuring that the interests and concerns of Aboriginal groups are demonstrably integrated into the proposed plan of action. Currie J. stated: Here, there is no proposed plan of action. There is nothing to consult about. Currie J. also reiterated that, based upon Rio Tinto, the duty to consult is only triggered when there is a causal relationship between the proposed government conduct and the potential for adverse impacts on Aboriginal rights. There is no such causal relationship here. The judicial review application was therefore dismissed with costs. Decision available here. Scott Kerwin, Partner Aboriginal Law Vancouver skerwin@

6 6 ABORIGINAL NEWSLETTER 13 AUGUST 2014 ACADEMIC INTEREST AND BOOK REVIEWS The Spring 2014, Volume 61, Number 2, issue of Ethnohistory contains the following book reviews of potential interest: BOOK REVIEWS: Farr, William E., Blackfoot Redemption: A Blood Indian s Story of Murder, Confinement, and Imperfect Justice (Norman: University of Oklahoma Press, 2012 xix pp.) Reviewed by Brenden W. Rensink Newman, Andrew, On Records: Delaware Indians, Colonists, and the Media of History and Memory (Lincoln: University of Nebraska Press, 2012, xiii pp.) Reviewed by Richard Mace White, Sophie, Wild Frenchmen and Frenchified Indians: Material Culture and Race in Colonial Louisiana (Philadelphia: University of Pennsylvania Press, 2012 viii pp.) Reviewed by Kathleen DuVal BOOKS AND ARTICLES NOTICED BUT NOT REVIEWED The Spring 2014, Number 181, issue of BC Studies contains the following books and chapters in books and articles of potential interest: BOOKS Beck, David, and Thom Hess, as told by Martha Williams Lamont, Elizabeth Charles Krise, Edward Sam, and Agnes Jules James, Tellings from Our Elders: Lushootseed syǝyǝhub. Volume I: Snohomish Texts (Vancouver, BC: UBC Press, 2014, 616 pp.) Bleck, Nancy, Katherine Dods, and Chief Bill Williams, Picturing Transformation: Nexw-áyantsut (Vancouver, BC: Figure 1 Publishing, 2013, 160 pp.) Dean, Amber, Public Mourning and the Culture of Redress: Mayerthorpe, Air India, and Murdered or Missing Aboriginal Women, In Reconciling Canada: Critical Perspectives on the Culture of Redress, edited by Jennifer Henderson and Pauline Wakeham, (Toronto, ON: University of Toronto Press, pp.) Evans, Brad, and Aaron Glass, (Eds.), Return to the Land of the Head Hunters: Edward S. Curtis, the Kwakwaka wakw, and the Making of Modern Cinema (Seattle, WA: University of Washington Press, 2014, 464 pp.)

7 Krmpotich, Cara, and Laura Peers, with the Haida Repatriation Committee and Staff of the Pitt Rivers Museum and British Museum, This Is Our Life: Haida Material Heritage and Changing Museum Practice (Vancouver, BC: UBC Press, 2013, 320 pp.) Lutz, John S., Patrick A. Dunae, Jason Gilliland, Don Lafreniere, and Megan Harvey, Turning Space Inside Out: Spatial History and Race in Victorian Victoria In Historical GIS Research in Canada, edited by Jennifer Bonnell and Marcel Fortin, 1-25 (Calgary, AB: University of Calgary Press, 2014, 3544 pp.) Perry, Adele, James Douglas, Amelia Connolly, and the Writing of Gender and Women s History In Feminist History in Canada: New Essays on Women, Gender, Work, and Nation, edited by Catherine Carstairs and Nancy Janovicek, (Vancouver, BC: UBC Press, 2013, 302 pp.) ARTICLES Graben, Sari, Resourceful Impacts: Harm and Valuation of the Sacred (University of Toronto Law Journal 64, no. 1 (2014: )) Johnson, Leslie Main, Revisiting the Origins of Northwest Coast Packstraps (Museum Anthropology 36, no. 2 (2013): ) Prentiss, Anna Marie, Hannah S. Cail, and Lisa M. Smith, Át the Malthusian Ceiling: Subsistence and Inequality at Bridge River, British Columbia (Journal of Anthropological Archaeology 33 (March 2014): 34-48)) Schneider, Lindsay, There s Something in the Water : Salmon Runs and Settler Colonialism on the Columbia River (American Indian Culture and Research Journal 37, no. 2 (2013): )

8 ABORIGINAL LAW GROUP National Leader Kenneth J. Tyler Vancouver Regional Leaders Brad J. Pierce Calgary Nadir André Montréal Qajaq Robinson Ottawa Adam Chamberlain Toronto Kenneth J. Tyler Vancouver kt BORDEN LADNER GERVAIS LAWYERS PATENT & TRADE-MARK AGENTS Calgary Centennial Place, East Tower 1900, 520 3rd 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 Borden Ladner Gervais LLP Montréal 1000, rue De La Gauchetière Ouest Suite 900 Montréal, QC, Canada H3B 5H4 Tél Téléc Ottawa World Exchange Plaza 100 Queen St, Suite 1300 Ottawa, ON, Canada K1P 1J9 T F (Legal) F (IP) ipinfo@ (IP) Vancouver 1200 Waterfront Centre 200 Burrard St, P.O. Box Vancouver, 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) Borden Ladner Gervais LLP is an Ontario Limited Liability Partnership.