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2015 was a big year for Indigenous law – both inside and outside of the courts. Here is our round-up of just a few of the noteworthy events.

The Truth and Reconciliation Commission wrapped up its operations in June

The Truth and Reconciliation Commission, or TRC, was created as part of the Indian Residential Schools Settlement Agreement. Its mandate is to collect and record documents and memories about Canada’s history of residential schools, and to recommend steps to the Government of Canada that will address the inter-generational legacy of residential schools. Thousands of survivors, family members and supporters attended the TRC’s closing ceremonies in Ottawa from May 31st to June 3rd. The Independent Assessment Process, in which survivors may claim compensation for abuse at residential schools, is ongoing.

The Supreme Court of Canada weighed in on the issue of Indigenous representation on juries

In R. v. Kokopenace, the Supreme Court considered the case of Clifford Kokopenace, a man from Grassy Narrows First Nation who was convicted of manslaughter in 2008 by an entirely non-Aboriginal jury. Although jury notices had been sent to on-reserve residents, only eight First Nations people ended up on the jury roll. The evidence showed that on-reserve communities tend to have lower response rates to jury notices, for reasons that are strongly related to historical tensions between Indigenous peoples and the criminal justice system.

The majority of the Supreme Court upheld the conviction, stating that Ontario had met its constitutional obligations by making reasonable efforts to give residents of First Nations reserves an opportunity to participate in the jury. The two dissenting judges, by contrast, argued that “reasonable efforts” are not enough and that a jury roll reflecting the diversity of the community is essential for protecting a person’s constitutional right to be tried by an impartial jury.

Indigenous voters took action

Concerned that the new voter identification rules under the Fair Elections Act would result in more Indigenous voters being turned away at the polls, members of several First Nations held clinics and information sessions to encourage and educate their neighbours before October’s federal election. The result was a dramatic increase in voter participation in some Indigenous communities.

Of the 54 Indigenous candidates in October’s election, 10 were elected to Parliament, and the new Cabinet that was sworn in on November 4th includes two Indigenous members. Hunter Tootoo of Nunavut now serves as Minister of Fisheries and Oceans and the Canadian Coast Guard, while Jody Wilson-Raybould of the We Wai Kai Nation stepped into the roles of Minister of Justice and Attorney General.

Murdered and missing Indigenous women dominated the news

Calls continued across Canada for a federal inquiry into the disproportionate rates of murdered and missing Indigenous women. The Chiefs of Ontario launched the “Who is She?” campaign, a fundraising effort aimed at creating a First-Nations-led process for addressing violence against Indigenous women and girls. Alex Keenan and Lyndra Griffith of Nelligan O’Brien Payne had the privilege of attending the launch in Toronto on September 9th.

Prime Minister Justin Trudeau and Carolyn Bennett, the new Minister of Indigenous and Northern Affairs, have committed to launching a federal inquiry in 2016. On December 1st, the Justice Minister announced the launch of a consultation process to determine the inquiry’s objectives and scope.

Indigenous traditional medicine was declared an Aboriginal right

Another high-profile issue concerned a young Haudenosaunee girl, known as “JJ”, suffering from high-risk acute lymphoblastic leukemia. JJ’s mother withdrew consent to a course of chemotherapy so that JJ could pursue the traditional forms of healing practiced by her community.

The matter, Hamilton Health Sciences Corp. v. D.H., was brought before the Ontario Court of Justice, which found that JJ and her family had a constitutionally-protected Aboriginal right to practice traditional medicine.

The Daniels case about Non-Status Indians and Métis made its way to the Supreme Court

After 16 years of litigation, the case Harry Daniels, et al. v. Her Majesty the Queen was heard by the Supreme Court in October. The Applicants in this case seek a declaration that Métis and non-status Indians are “Indians” within the meaning of section 91(24) of the Constitution Act, 1867, and that the federal Crown has both a fiduciary duty towards these groups and a duty to consult with them.

In 2014, the Federal Court of Appeal held that the Métis fall within the definition of “Indian”, but that non-status Indians would have to be considered on a case-by-case basis. As of the date of this posting, the Supreme Court has not yet released its decision.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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