Native Law Updates – March 2015

Six times a year I update the loose leaf version of Native Law. Here is the March 22, 2015 update:

Highlights for Native Law Release 2015 #1

Indian Act Amendment and Replacement Act.

Despite its expansive name, this new federal statute does not, in fact, replace the Indian Act. But as of December 16, 2014 when this statute came into force by-laws must be made public over the Internet or otherwise to be enforceable. 7§320, 7§1415 and 22§370. The new enactment makes many minor amendments to the Indian Act which are commented upon throughout the text. The author has added interesting new commentary concerning special reserves under the new s. 36.1: 8§910 and 8§1222, repeal of the Minister’s power of disallowance: 7§1270, and the abolition of residential schools: 14§120.

Traditional medicine as an aboriginal right.

In a prominent Ontario case, the decision by a parent to pursue traditional medicine for her child in a life and death situation was found to be an aboriginal right. See: Hamilton Health Sciences v. H. (d), 2014 ONCJ 603 at 5§405.

The duty to consult.

Topics about the duty to consult are expanded upon in light of recent case law:

• Application of the duty to modern treaties, 5§1300,
• Parliament’s duty to consult about legislation that may affect aboriginal rights, 5§1331 and 5§1333,
• The distinction between potential impacts and speculative impacts 5§1341,
• Blockades and self-help may cancel the duty to consult 5§1510,
• Remedies for breach of the duty 5§1671 and following.

Whether the Charter applies to customary band governments.

A section of the Peerless Trout First Nation’s Customary Election Regulations that offended section 3 of the Charter was upheld, on the basis that the Charter does not apply to customary band council elections. Orr v. Peerless Trout First Nation, 2015 ABQB 5: 6§265.

New cases on election appeals and removal from office.

Several new cases concerning election appeals and removal from office are reviewed in paragraphs 7§832, 7§834, 7§835, 7§836, 7§1081, 7§1082, 7§1083 and 7§1090 with helpful commentary from the author.

New cases on Federal Court jurisdiction.

Litigation concerning elections to the Innu Nation resulted in a Federal Court decision that incorporation under the Canada Corporations Act ousted the Federal Court’s jurisdiction. Pokue v. Innu Nation, 2014 FCA 271: page 402.4(4).

Yukon Umbrella Agreement: new case and commentary

Land use planning in Yukon has a constitutional dimension, as was found in First Nation of Nacho Nyak Dun v. Yukon, 2014 YKSC 69: page 416.20.