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Civil and Administrative
Litigation Opinions
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Indigenous - Litigation Generally

. Johnson v. Canada

In Johnson v. Canada (Fed CA, 2023) the Federal Court of Appeal considered (and held that) the procedural rules that apply when "a claim is based on constitutional rights and treaty rights of Indigenous peoples" are the normal rules:
[27] The claim that Mr. Johnson is attempting to bring before the Tax Court is a private, personal claim as he is seeking a return of the amounts that he has paid as excise tax, duty and GST on his importation of cigarettes in 2005. This Court, in Horseman v. Canada, 2018 FCA 119, confirmed that procedural and jurisdictional provisions applicable to the ETA will apply even if a claim is based on constitutional rights and treaty rights of Indigenous peoples:
[4] ... In private, personal claims such as this, procedural and jurisdictional provisions apply and must be obeyed even where the constitutional rights and treaty rights of Indigenous peoples are asserted …
[28] Therefore, the procedural and jurisdictional provisions applicable to bringing an appeal to the Tax Court under the ETA must be considered and applied.
. Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)

In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered an action where an indigenous group "sued Canada and Ontario for a declaration that they have Aboriginal title to submerged lands in a large section of Lake Huron and Georgian Bay, surrounding the Bruce Peninsula (the “Title claim”)" and "for breach of the promise made by the Crown in 1836, in Treaty 45 ½, to protect SON’s land from encroachments by “the whites” (the “Treaty claim”)".

In these quotes the court comments on the need for flexibility in indigenous litigation - here with pleadings amendment, discovery and further hearings:
(6) Should the trial judge have invited further submissions to determine a process as to whether a claim to Aboriginal title to a smaller area could be established?

[101] In Tsilhqot’in, at para. 23, the Supreme Court stated that, where an Aboriginal title claim is varied from what was initially claimed, a technical approach to pleadings should not stand in the way of resolving the substance of the issues:
[C]ases such as this require an approach that results in decisions based on the best evidence that emerges, not what a lawyer may have envisaged when drafting the initial claim. What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society. A technical approach to pleadings would serve neither goal. It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter. Only thus can the project of reconciliation this Court spoke of in Delgamuukw be achieved.

[105] The trial judge noted that, in light of the lack of submissions and evidence with respect to Nochemowenaing, she did not have sufficient information to define the area. In addition, she found that it would not be fair to do so, given that Canada and Ontario had not had “an opportunity to raise any specific issues that may arise from any proposed boundaries in that area.” She noted that it would still be open to SON to pursue a different Aboriginal right that would recognize their historical spiritual practices.

[106] SON asks this court to remit this alternative claim to the trial judge “for a judgment, after further evidence and submissions, on the question of Aboriginal title to a portion of the Aboriginal title area claimed”.

[107] We accede to this request. SON should not have to begin a new proceeding to determine this issue. The trial judge in this case is uniquely qualified to assess this request because of her long familiarity with the evidence and issues. The trial judge can devise a procedure that is fair to both sides, including further pleadings, discovery, and hearings that she deems necessary to determine whether the Tsilhqot’in test has been satisfied for any limited portion of the broader area SON had initially claimed.
. Whiteduck v. Ontario

In Whiteduck v. Ontario (Ont CA, 2023) the Court of Appeal considers the general nature of indigenous litigation:
(6) The court must take a generous approach to pleadings in Indigenous cases

[25] This court must bring a somewhat generous and forgiving approach to what might be seen as imprecisions in pleading, particularly in Indigenous cases, in line with McLachlin C.J.’s observations in Tsilhqot’in Nation, that “a functional approach should be taken to pleadings in Aboriginal cases”, where “the legal principles may be unclear at the outset, making it difficult to frame the case with exactitude”: at paras. 20-21. A “technical approach” to pleadings is to be avoided so that “rights issues [can] be resolved in a way that reflects the substance of the matter” in aid of the “project of reconciliation”: Tsilhqot’in Nation, at para. 23.


[55] Second, it is understandable that the Algonquins would prefer a trial over judicial review in this case, given the plethora of competing expert reports in which credibility and reliability will play key roles. The Supreme Court has pointed out that a civil action might sometimes be the preferred route. In Lax Kw’alaams Indian Band v Canadian (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535, Binnie J. said, at para. 11,
If litigation becomes necessary, however, we have also said that such complex issues would be better sorted out in civil actions for declaratory relief rather than within the confines of regulatory proceedings. In a fisheries prosecution, for example, there are no pleadings, no pre-trial discovery, and few of the procedural advantages afforded by the civil rules of practice to facilitate a full hearing of all relevant issues.
[56] Binnie J. added, at para 12:
At this point in the evolution of Aboriginal rights litigation, the contending parties are generally well resourced and represented by experienced counsel. Litigation is invariably preceded by extensive historical research, disclosure, and negotiation. … The existence and scope of Aboriginal rights protected as they are under s. 35(1) of the Constitution Act, 1982, must be determined after a full hearing that is fair to all the stakeholders.
[57] Although Binnie J. was addressing litigation between a First Nation and the Crown, these observations apply with necessary modifications to litigation involving competing Aboriginal claims and the Crown.

[58] Then J.’s observations in Keewatin vs. Ontario (Minister of Natural Resources) (2003), 2003 CanLII 43991 (ON SCDC), 66 O.R. (3d) 370 (Div. Ct.), a treaty rights case, are also apt. In quashing an application for judicial review with leave to bring an action, he observed, at para. 59: “a great deal of evidence, including expert evidence, will be called by the parties on a number of disputed facts and issues, and it is inappropriate to deal with these disputes of material fact by way of summary application”. He concluded, at para. 63: “that the interests of justice would be best served if the issues raised on this application are determined at trial.” He noted, at para. 53 and following, that the court has jurisdiction under rule 38.10(1) to convert a judicial review application into a trial.


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Last modified: 16-11-23
By: admin