Native Law Updates – December 2015(2)

The seventh and final 2015 update to Native Law contains the following additions:

  • Native Law now includes an updated Directory of First Nations, which incorporates instances where First Nations have been referenced in the case law found in Chapter 2 (Sources of Aboriginal Law), as well as updated references to the case law in Chapter 1 (Legal Recognition of Native Individuals and Native Groups). Future releases will include further expansion of the coverage on the Directory of First Nations, ultimately to cover every chapter.
  • The Words & Phrases section has been updated with the following definitions:
    • ACTIVE ON THE LAND — Nunavut — [The Aboriginal appellant] was active “on the land”, which we interpret to mean that he was an active hunter and fisherman: R v Ipeelie, 2015 NUCA 3 at para 6.
    • INADVERTENCE — Alberta — “[I]nadvertence” in the context of the [Métis Settlements Act, RSA 2000, c. M-14] is [not] necessarily established if the party alleging inadvertence demonstrates that there was no deliberate flouting of the law: “‘Careless and irresponsible’ conduct must surely be at the far extreme of ‘inadvertency’. Conduct which is unintentional is likely at the other end of inadvertency. They may both be subsets of the overall category of negligence. An error in judgment sounds much like another subset of negligence, although adding ‘genuine’ imports the element of honesty and good faith.” Shaw v Gift Lake Métis Settlement, 2015 ABQB 470 at para 72.
    • INDEPENDENT ASSESSMENT PROCESS — British Columbia — The IAP [Independent Assessment Process] is a procedure that allows class members to advance claims for physical or sexual abuse suffered while at any of the [Indian residential schools] recognized in the [Indian Residential Schools Settlement Agreement]. Those types of abuse which are compensable within the IAP are labeled “continuing claims”: Fontaine v Canada (Attorney General), 2015 BCSC 717 at para 15.
    • NARRATIVE — Ontario — Under the [Indian Residential Schools Settlement Agreement], Narratives summarize information about:
      • each Indian Residential School;
      • documents mentioning sexual abuse at the particular school; and
      • alleged perpetrators of assaults who are called POIs (“Persons of Interest”)
        Fontaine v Canada (Attorney General), 2015 ONSC 3611 at para 4.
    • NOWEGIJICK PRINCIPLE — Ontario — The appellants argue that the Tribunal must view its statutory mandate in relation to the “natural environment” through the eyes of the First Nations people because it must apply the Nowegijick principle. The “Nowegijick principle” comes from a Supreme Court of Canada decision interpreting the federal Income Tax Act [RSC 1985, c 1 (5th Supp)] in light of s. 87 of the Indian Act [RSC 1985, c I-5], which exempts “personal property of an Indian or band situation on reserve” from taxation. It is also known as the “ambiguity principle”. In [Nowegijick v The Queen, [1983] 1 SCR 29], the Court stated, at p. 36, “treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.”: Cham Shan Temple v Director, Ministry of the Environment, [2015] OERTD No 9, 2015 CarswellOnt 2773 (Ont. Environmetnal Review Trib.) at para 640.