Native Law Updates – May 2015

May 10, 2015: Additions to Native Law, Sixties Scoop class action, etc.

Family Homes on Reserves and Matrimonial Interest or Rights Act.

The “provisional” rules came into force for virtually all First Nations in Canada on December 16, 2014, and made very significant changes to the property interests of spouses on reserves. Even non-Indian spouses on reserves may acquire property interests, or at least the right of residence, upon marital breakup. See paragraphs 1§1765, 4§352, 15§42 and following.

The “Sixties’ Scoop” class action.

In a ground-breaking decision the Ontario Superior Court of Justice has found that it is arguable that there was a fiduciary obligation on Canada to protect the cultural and identity of aboriginal children, an obligation that may have been breached by the mass removal of Indian children from reserves in the 1960s. See paragraph 3§1392; and page 402.2(1)

Injunctions: Herring fishery stopped; hydro project allowed; rules clarified.

Several recent decisions are reviewed, including the Federal Court’s injunction against the opening of a herring fishery off Haida Gwaii. The commentary is revised and updated to clarify the rules for granting injunctions. See paragraphs 5§1212 and following

Blockades.

The attitude of the Court to self-help is reviewed in a recent B.C. Court of Appeal decision, in which it is revealed that a standard clause in Crown logging contracts is a “dissatisfaction” clause anticipating the possibility of an aboriginal blockade. 5§1605

Difficulty of establishing Metis rights in Nova Scotia.

In a recent Nova Scotia case the Court found that it was difficult to establish a culturally distinctive community of Metis before effective European control. See paragraph 1§200; 5§640

Litigation about treaty societies and funding of treaty negotiations.

Several decisions are reviewed concerning the right of a treaty society to represent the membership of the aboriginal nation in negotiations with the Crown. See paragraphs 1§2430, 1§2440, 8§642, 8§644

Residential Schools litigation.

Recent cases in the ongoing litigation resulting from the Indian Residential School Settlement Agreement and the Independent Assessment Process process are reviewed. See paragraphs 19§415 and 19§442 and following

Update of rules for Indian status.

A recent decision of the Federal Court of Appeal clarifies the limits to the 1985 amendments to the Indian Act regarding the restoration of status to enfranchised people and their descendants. See paragraphs 1§872 and 1§1200.

Reliance on this text by the Courts: A passage in Native Law was cited with approval by Mr. Justice LeBlanc of the Federal Court. See paragraph 1§422