It will take a healthy dose of political will, huge investments and nearly a generation for the Quebec government to implement the wide-ranging recommendations an inquiry that examined treatment of Indigenous people made to the province’s justice and correctional systems, according to legal experts.
The federal government dodged a potential crisis that would have halted Indian status registrations after the Quebec Court of Appeal begrudgingly gave Ottawa until Christmas to address sex-based discriminatory provisions in the Indian Act and complete a bill that has been held up by the Senate.
In a ruling that marks the first time a Canadian appellate court has been called upon to decide whether or not to extend yet again the suspension of a judicial declaration of constitutional invalidity of a legislative provision, the Quebec appeal court scolded the federal government for the “unacceptable delays” and the absence of administrative measures that would have mitigated the discrimination.
“There are limits as to how long suspensions of declarations of constitutional invalidity may last,” said Justice Robert Mainville in a 20-page ruling in AG Canada c. Descheneaux, 2017 QCCA 1238. Justices Marie-Josée Hogue and Patrick Healy concurred with the August 18th decision.
The Supreme Court of Canada shed new light on the Crown’s constitutional duty to consult with Aboriginal communities and clarified the role and obligation of decision-making bodies in two separate decisons that has the potential of providing greater predictability for natural resources companies seeking regulatory approval.
In companion decisions, the nation’s highest court handed mixed results to Inuit and First Nations groups who challenged decisions by the National Energy Board (NEB), a regulatory agency.
The Quebec Court of Appeal granted a safeguard order today that temporarily postpones a court ruling that would have suspended new Indian status registrations as of July 4th.
Quebec Court of Appeal Justice Nicholas Kasirer granted the Attorney General of Canada leave to appeal from a June 27th decision that refused to extend for a second time the suspension of its August 3, 2015 judgment that found that the principal registration provisions of the Indian Act were invalid because it breached s.15 of the Canadian Charter of Rights and Freedoms.
A suspension on new Indian status registrations could begin new week unless the Quebec Court of Appeal issues a safeguard order.
Federal and provincial governments “need” to demonstrate a “stronger engagement” towards conducting meaningful consultations with indigenous communities, according to a United Nations working group on business and human rights.
The duty to consult takes on added weight given that extensive mining and oil and gas extraction in several indigenous territories is “accompanied” by significant adverse environment impacts that affect the right to health, added the UN panel.
A United Nations working group on business and human rights is calling on federal and provincial governments as well as industry associations and companies to bolster their efforts to prevent and address “adverse human rights impacts” of business activities in Canada and abroad.
The UN panel lauded the federal government for undertaking some initiatives to deal with business and human rights, particularly in the extractive sector, but underscored that it could do much more.
Nearly three years after the president of the Quebec legal society warned the provincial government that prison conditions faced by Inuit inmates in northern Quebec were appalling and deplorable, the Quebec Ombudsman upbraided the government for turning a blind eye to the daily violation of basic human rights, unacceptable detention conditions, and systemic shortcomings in the administration of justice in Nunavik.
Unsanitary and overcrowded holding cells, nauseating odours, soiled bedding, inaccessible showers, sanitation facilities that fail to provide detainees with privacy, and prisoners having to eat their meals on the floor are among some of the more disturbing findings made by the Quebec Ombudsman Raymonde Saint-Germain who likened Nunavik’s detention and justice system to the Third World.
Just as troubling were her findings that detainees are kept in cells 24 hours a day because there are no outdoor courtyards, with some detainees having to wait as long as two weeks in preventative custody. The Criminal Code of Canada prescribes a maximum waiting time of three days.
The federal government has been given 18 months to correct discriminatory provisions in the Indian Act that infringe the Charter of Rights and Freedoms after a Quebec judge held that generations of indigenous women have suffered discrimination based on gender.
Despite several amendments to the Indian Act, the latest in 2010 in response to a ruling by the Court of Appeal for British Columbia, Quebec Superior Justice Chantal Masse found that it still discriminated against women and their descendants on the issue of registration or “Indian status.” The federal government has until January 2017 to amend the discriminatory provisions before they are declared invalid as an unjustifiable breach of the right to equality guaranteed by section 15 of the Charter.
First Nations can now bring tort claims founded on Aboriginal rights and title before those rights are formally recognized by a court declaration or government agreement after the Supreme Court of Canada refused to end lawsuits by Aboriginal communities against natural resource companies.
The SCC’s decision to dismiss the applications for leave to appeal paves the way for a $900 million class action filed by two Quebec Innu First Nations against Iron Ore Co. of Canada (IOC) and a separate suit by two north-central British Columbia First Nations against Rio Tinto Alcan Inc. over its diversion of water from the Nechako River since the 1950s.
“The interaction between common law torts and aboriginal law has not really been explored in Canada,” said Greg McDade, lawyer of the Saik’uz and Stellat’en First Nations of British Columbia.
In yet another forceful reminder that the Crown must hold consultations that are meaningful, conducted in good faith and held with an open mind, the Quebec Court of Appeal strongly endorsed the primacy of treaty rights of aboriginal peoples under the James Bay and Northern Québec Agreement in a decision widely expected to have ramifications across the country.
In landmark ruling that clearly signals that the courts are willing to enforce treaty rights, especially those that emanate from modern land claims treaties, the Quebec Court of Appeal held that the provincial government violated the treaty rights of the Cree, Inuit and Naskapi First Nations of northern Quebec when it unilaterally set caribou sport hunting levels and dates for the 2011-2012 season in the territories covered by the Treaty.
“This is an important judgment for aboriginal peoples who have signed a modern treaty, and for those who will eventually sign a modern treaty,” noted Jean-Sebastien-Clement, a Montreal lawyer specializing in aboriginal law.